EXHIBIT 4d
FUTURE ADVANCE
MORTGAGE
THIS IS A FUTURE ADVANCE MORTGAGE made October 30, 1992, between PRAB
ROBOTS, INC., a Michigan corporation, whose address is 5944 East Kilgore Road,
Kalamazoo, Michigan 49003, hereinafter collectively referred to as the
"Mortgagor", and ARCADIA BANK, a Michigan banking corporation, having its
principal office at 251 East Michigan Avenue, Kalamazoo, Michigan 49007,
hereinafter referred to as the "Bank".
The Mortgagor represents, warrants, covenants and agrees to and with
the Bank that at all times this Mortgage is in effect:
1. Liabilities. This Mortgage secures the following obligations
to the Bank (hereinafter collectively referred to as the "Liabilities"):
A. The indebtedness and obligations (including future
advances) evidenced by,
Name of Instrument Date of
(including face amount, if any) Name of Obligor Instrument
- ------------------------------- --------------- ----------
$500,000 Commercial Revolving Note Prab Robots, Inc. October 30, 1992
and any extensions, renewals, modifications, or replacements thereof; and
B. ALL EXISTING AND FUTURE OBLIGATIONS OF MORTGAGOR TO THE
BANK, WHETHER OR NOT THE INSTRUMENTS EVIDENCING SUCH OBLIGATIONS ARE DESCRIBED
ABOVE, including, but not limited to, payment and performance of the
provisions of this Mortgage and all existing and future assignments of leases
and/or rents arising from the Property; payment and performance of all
advances (including future advances), notes, undertakings, obligations, debts,
liabilities, agreements, applications or agreements for issuance of letters of
credit, assignments, guarantees, or promises of or by the Mortgagor to or with
the Bank, whether due, existing or arising, now or in the future, absolute or
contingent, direct or indirect, however arising or acquired by the Bank, and
including obligations originally owing by the Mortgagor to a third party and
assigned by such third party to the Bank; payment and performance of all
existing and future obligations (including the kinds of obligations described
above) to the Bank of any persons or entities for which the Mortgagor is or
becomes an accommodation party, surety or guarantor or whose obligations this
Mortgage is given to secure; and all extensions, renewals and modifications of
the foregoing. If more than one person appears as the Mortgagor above, the
Liabilities shall include, without limitation, all of the foregoing joint,
several and individual obligations of each such person to the Bank. Mortgagor
agrees that if the proceeds of any of the Liabilities created in the future
are utilized to pay and/or renew any of the Liabilities existing at this time,
such future Liabilities shall be presumed to be renewals or extensions of such
existing Liabilities.
2. Grant of Mortgage and Lien. In consideration of and to secure
the Liabilities, the Mortgagor hereby mortgages and warrants to the Bank, its
successors and assigns, land,
premises and property situated in the Township of Pavilion, County of
Kalamazoo, Michigan, described as:
The East 247-1/2 feet of the Northeast quarter of Section 6,
Town 3 South, Range 10 West.
The Mortgagor also mortgages and warrants to the Bank:
(a) The privileges, appurtenances, improvements, buildings,
tenements, hereditaments, easements, rights of way, riparian and littoral
rights, and all other rights belonging to the above-described premises and
which may hereafter attach thereto; and
(b) All equipment and fixtures of every kind and nature
whatsoever, now or hereafter located in or upon such premises or any part
thereof and used or useable in connection with any present or future operation
of such premises (hereinafter called "Fixtures"), whether now owned or
hereafter acquired by the Mortgagor, including, without limitation, all
heating, air conditioning, ventilation, lighting, incinerating and power
equipment, engines, signs, security systems, fences, hoists, cranes,
compressors, pipes, pumps, tanks, motors, plumbing, cleaning, fire prevention,
fire extinguishing, apparatus, elevators, escalators, shades, awnings,
screens, storm doors and windows, appliances, attached cabinets, partitions,
carpeting, ground maintenance equipment, and similar types of equipment, all
of which shall be deemed to be real estate and mortgaged hereby.
The Mortgagor agrees to execute, acknowledge and deliver, from
time to time, such financing statements or other instruments as may be
requested by the Bank to confirm, protect and perfect the lien of this
Mortgage on any Fixtures under the provisions of the Uniform Commercial Code
or other applicable statutes in effect in Michigan or otherwise, and this
Mortgage shall also constitute a security agreement with reference to the
Fixtures, and upon the Mortgagor's default the Bank shall, in addition to all
other remedies herein provided, have the remedies provided for under the
Uniform Commercial Code in effect in Michigan. The above described premises,
real property, Fixtures and other property rights related thereto are referred
to herein as the "Property".
3. Payment and Performance of Obligations. The Mortgagor shall
pay the Liabilities in accordance with the terms thereof and shall keep and
perform all the terms, conditions and covenants of the Liabilities.
4. Title to Property/Priority of Lien. The Mortgagor does and
shall own good and marketable title to the Property, free of all easements,
liens, mortgages, security interests, encroachments, encumbrances, leasehold
interests, rights, claims, and other interests of any nature (herein
"Interests"), other than Interests which are consented to in writing by the
Bank. The Mortgagor shall forever warrant and defend the Property against any
and all Interests not consented to in writing by the Bank and the lien created
hereby is and shall be kept as a first lien upon the Property, unless
otherwise agreed in writing by the Bank. Upon request, the Mortgagor shall, at
its cost, provide the Bank with a title insurance policy and other evidence of
title as the Bank may request from time to time which shall be in form and
substance satisfactory to the Bank.
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5. Condition, Maintenance and Use of the Property. The Property is
and shall be in good condition sufficient for the use contemplated by the
Mortgagor, and free of all material defects. None of the easements, rights, or
other Interests consented to by the Bank shall materially impair or restrict
the use of the Property as contemplated by the Mortgagor. The Mortgagor shall
not commit, now or hereafter, waste on the Property and shall maintain all of
the Property in good condition and working order satisfactory to the Bank, and
shall make all repairs necessary to maintain the value of the Property and
keep it in compliance with all applicable laws, regulations, and ordinances.
The Mortgagor shall do everything necessary to keep in force any
manufacturer's and seller's warranties with respect to the Fixtures. The
Mortgagor shall hold all valid permits and licenses necessary to operate and
maintain the Property as contemplated by the Mortgagor and the Property shall
be used only for lawful purposes and in compliance with all applicable laws,
regulations and ordinances.
6. Payment of Taxes. The Mortgagor shall pay and discharge all
taxes, assessments, fees, licenses, liens, and charges at any time levied upon
or assessed against the Mortgagor or the Property. The Mortgagor shall not do
anything or permit anything to be done which would impair the lien of this
Mortgage. Notwithstanding the foregoing, the Mortgagor shall not be required
to pay any tax, assessment, fee, license, lien, or charge so long as it is in
good faith contesting the validity thereof. If such contest is made, the
Mortgagor shall provide security for the payment of such tax, assessment, fee,
license, lien, or charge in a manner satisfactory to the Bank.
7. Insurance. The Mortgagor shall carry insurance against such
risks, with such companies, and in such amounts as shall be satisfactory to
the Bank (including but not limited to, hazard insurance and flood insurance,
if the Property is located within a flood hazard area); each policy shall be
in a form satisfactory to the Bank and contain provisions for payment in case
of loss to the Bank as its interest may appear. The Mortgagor shall promptly
pay all premiums therefor, and deliver to the Bank all such policies of
insurance. All insurance policies shall provide that notice of non-renewal or
cancellation must be given to the Bank at least thirty (30) days before such
non-renewal or cancellation. Any insurance money received by the Bank may, at
its sole election, be paid, either in whole or in part, to the Mortgagor for
the purpose of defraying the costs and expenses of repair, restoration or
replacement of the Property damaged or destroyed, or be retained and applied
toward the payment of any of the Liabilities with the excess, if any, over the
Liabilities to be repaid to the Mortgagor, without impairing the Mortgagor's
duties under this Mortgage or the Liabilities. In the event of loss with
respect to the Property, the Mortgagor shall promptly notify the Bank thereof
and the Bank may make any proof of loss not promptly made by the Mortgagor. In
the event of foreclosure or other disposition of the Property in partial or
full payment of the Liabilities, the Bank shall be entitled to all of the
Mortgagor's right, title and interest in and to all policies of insurance with
respect to the Property, including, without limitation, the right to collect
any unearned premium refund relating to such policies.
8. Escrow of Tax and Insurance. Upon demand by the Bank, the
Mortgagor shall pay monthly to the Bank a sum equal to 1/12 of the annual
taxes and assessments on the Property next coming due, and 1/12 of the annual
premiums on required insurance policies on the Property next coming due, all
as estimated by the Bank so as to enable the Bank to pay such taxes,
assessments and insurance premiums in full thirty (30) days before the due
date thereof. Upon occurrence of an Event of Default, moneys so held by the
Bank may be applied against the Liabilities. If the funds so paid to the Bank
are insufficient to pay such taxes,
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assessments and insurance premiums in full thirty (30) days before the due
dates thereof, the Mortgagor shall immediately upon written demand therefor,
pay to the Bank such additional sums as are required to pay such taxes,
assessments and insurance premiums in full thirty (30) days before the due
date thereof. If the funds so paid to the Bank shall exceed the amount of
taxes, assessments and insurance premiums paid by the Bank, such excess shall
be credited by the Bank to subsequent payments required to be made by the
Mortgagor pursuant to this paragraph.
9. Assignment of Awards and Tax Refunds. The Mortgagor hereby
assigns to the Bank, in their entirety, all judgments, decrees and awards for
injury or damage to the Property, all awards pursuant to proceedings for
condemnation thereof, and all refunds of local, state or federal income or
other taxes relating to the Property or the disposition thereof by the
Mortgagor (the "Claims"). The Mortgagor authorizes the Bank, at its sole
election (and as to refunds of taxes, after default), to apply the Claims, or
the proceeds thereof, to the Liabilities in such manner as the Bank may elect;
and the Mortgagor hereby authorizes the Bank, at its option (and as to refunds
of taxes, after default), in the name of the Mortgagor, to appear and
participate in any proceeding related to the Claims and to execute and deliver
valid receipts, discharges, and settlements for, and to appeal from, any
award, judgment or decree with respect to the Claims.
10. Bank's Right to Perform. If the Mortgagor defaults in the
payment of any taxes, assessments or charges (or in providing security as
provided in Section 6), in procuring or maintaining insurance in maintaining
the Property, or in performing any of the other obligations of this Mortgage,
then the Bank may, at its option, (notwithstanding anything to the contrary
contained in any of the Liabilities) take any action or pay any amount
required to be taken or paid by the Mortgagor hereunder. The cost of such
action or payment by the Bank shall be immediately paid by the Mortgagor,
shall be added to the Liabilities, shall be secured hereby, and shall bear
interest at the highest rate specified in the Liabilities from the date
incurred by the Bank until fully paid. No such action taken or amount paid by
the Bank shall constitute a waiver of any default of the Mortgagor hereunder.
11. Removal of the Property. Except for maintenance in the ordinary
course of business, the Mortgagor shall not, without the prior written consent
of the Bank, remove or demolish any timber, topsoil, minerals, fixture,
building, or improvement forming part of the Property.
12. Transfer of the Property. The Bank is relying upon the integrity
of the Mortgagor and its promises to perform the covenants of this Mortgage.
The Mortgagor shall not sell, transfer, convey, assign, rent for a period
exceeding one year, dispose of, or further encumber, voluntarily or
involuntarily, its interest in any of the Property by deed, land contract,
mortgage or otherwise, without the prior written consent of the Bank. Subject
to the foregoing, if the ownership of the Property, or any part thereof,
becomes vested in a person other than the Mortgagor, the Bank may deal with
such successor or successors in interest in the same manner as with the
Mortgagor, without in any manner vitiating or discharging the Mortgagor's
liability hereunder or upon the Liabilities. The Mortgagor shall at all times
continue to be primarily liable on the Liabilities until fully discharged or
until the Mortgagor is formally released in writing by the Bank.
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13. Additional Documents. At any time, upon request of the Bank, the
Mortgagor shall execute and deliver or cause to be executed and delivered to
the Bank and, where appropriate, shall cause to be recorded and/or filed at
such time and in such offices and places designated by the Bank, any and all
such other and further mortgages, financing statements, instruments of further
assurance, certificates and other documents as may, in the opinion of the Bank
or its counsel, be necessary or desirable to effectuate, complete, perfect,
continue or preserve the obligation of the Mortgagor under this Mortgage and
the lien of this Mortgage as a first lien upon all the Property (excepting
prior liens consented to in writing by the Bank). If the Mortgagor fails to
comply with the foregoing sentence, the Bank may execute, record, file,
re-record and refile any and all such mortgages, financing statements,
instruments, certificates and documents for and in the name of the Mortgagor
and the Mortgagor hereby irrevocably appoints the Bank as its agent and
attorney in fact to do so.
14. Assignment of Leases and Rents. As additional security for the
payment and performance of the Liabilities, and for the performance of the
agreements herein contained, the Mortgagor hereby assigns and transfers to the
Bank, its successors and assigns, all the rents, profits, and income under any
lease or leases of the Property (including any extensions, amendments, or
renewals thereof), whether due or to become due, including all such leases in
existence or coming into existence during the period this Mortgage is in
effect. This assignment of rents shall run with the land and be good and valid
against the Mortgagor or those claiming under or through the Mortgagor, from
the date of the recording of this Mortgage. This assignment shall continue to
be operative during foreclosure or any other proceedings taken to enforce this
Mortgage. In the event of a sale or foreclosure which shall result in a
deficiency this assignment shall stand as security during the redemption
period for the payment of such deficiency. This assignment is given as
collateral security only and shall not be construed as obligating the Bank to
perform any of the covenants or undertakings required to be performed by the
Mortgagor contained in any assigned leases.
Upon occurrence of an Event of Default, the Mortgagor shall,
upon demand by the Bank, and to the extent allowed by law, deliver possession
of the Property to the Bank, who shall thereafter collect the rents and income
therefrom, rent or lease the Property or portion thereof upon terms and for a
time as it deems best, terminate any tenancy and maintain proceedings to
recover rents or possession of the Property from any tenant or trespasser. The
Bank may apply the net proceeds of such rent and income to the following
purposes: (a) preservation of the Property; (b) payment of taxes; (c) payment
of insurance premiums; (d) payment of the Liabilities. In the event that the
Mortgagor fails, refuses, or neglects to deliver or surrender possession, the
Bank shall be entitled to the appointment of a receiver for the Property and
of the earnings, income, issue and profits thereof, with such powers as the
court making such appointment may confer. The Mortgagor hereby irrevocably
consents to such appointment and waives notices of any application therefor.
The Mortgagor agrees to execute and deliver to the Bank further assignments of
rents on all future leases on the Property during the term of this Mortgage,
such assignments to be in a form and manner reasonably satisfactory to the
Bank.
15. Waste and Receiver. The failure, refusal or neglect of the
Mortgagor to pay any of the taxes assessed against the Property before any
interest or penalty attaches thereto and to provide adequate security therefor
shall constitute waste hereunder and in accordance with the provisions of Act
No. 236 of the Public Acts of Michigan for 1961. The failure, refusal or
neglect of the Mortgagor to keep the Property adequately insured as herein
provided, or to
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pay the premiums therefor, shall likewise constitute waste hereunder and in
accordance with the provisions of Act No. 236. Upon the happening of any act
of waste and on proper application made therefor by the Bank to a court of
competent jurisdiction, the Bank shall forthwith be entitled to the
appointment of a receiver of the Property and of the earnings, income, issue
and profits thereof, with such powers as the court making such appointment
shall confer. The Mortgagor hereby irrevocably consents to such appointment
and waives notice of any application therefor.
16. Reimbursement of Expenses. The Mortgagor shall pay or reimburse
the Bank for expenses reasonably necessary or incidental to the protection of
the lien and priority of this Mortgage and for expenses incurred by the Bank
in seeking to enforce the provisions hereof and of the Liabilities (whether
before or after default), including but not limited to costs of evidence of
title to and survey of the Property, costs of recording this and other
instruments, actual, reasonable attorney fees (including, but not limited to,
fees incurred in participating or taking action in any bankruptcy or other
insolvency proceeding of Mortgagor), trustees' fees, court costs, and expenses
of advertising, selling and conveying the Property. All such payments or
reimbursements shall be paid immediately to the Bank, shall be added to the
Liabilities, shall be secured by this Mortgage, and shall bear interest at the
highest rate specified in the Liabilities from the date incurred by the Bank
until fully paid.
17. Inspection and Reports. At all reasonable times, the Bank and
its agents may inspect the Property to ascertain whether the covenants and
agreements contained herein or in any supplementary agreement are being
performed. Upon demand by the Bank, the Mortgagor shall promptly deliver to
the Bank all financial reports, statements and other documents relating to the
Property and the Mortgagor, as shall be reasonably requested by the Bank.
Mortgagor hereby authorizes the Bank to undertake or to have third parties
undertake on its behalf (not more often than twice in any 12 month period)
environmental investigations regarding the Property and its operation
including research into the previous and current ownership, use, and condition
(by taking samples or borings or otherwise) of the Property for the purpose of
attempting to determine whether: (i) Mortgagor or any current or past occupant
of the Property has violated any federal, state or local laws involving the
protection of the environment and/or the disposition of, or exposure to,
hazardous or toxic substances, as now existing or as hereinafter amended or
enacted, or any rules, regulations, guidelines or standards promulgated
pursuant thereto; and (ii) whether any hazardous or toxic substances have been
used or disposed of on the Property. Such investigations may be performed at
any time before or after occurrence of an Event of Default and Mortgagor will
permit the Bank and persons acting on its behalf to have access to the
Property and records concerning the Property for the purpose of conducting
such investigations. The cost of all such investigations shall be immediately
paid by Mortgagor to the Bank, shall be added to the Liabilities secured
hereby and shall bear interest at the highest rate specified in any of the
Liabilities secured hereby from the date incurred by the Bank until paid.
18. Events of Default. Occurrence of any one of the following
events shall constitute an "Event of Default" under this Mortgage:
(a) Breach, failure of payment or performance, or default by
the Mortgagor of or under any of the terms, conditions, or covenants of this
Mortgage, any of the Liabilities, or any other instrument or agreement
executed by the Mortgagor with or in favor of the Bank;
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(b) Breach, failure of payment or performance, or default by
any obligor other than the Mortgagor of or under any of the terms, conditions
or covenants of any of the Liabilities for which this Mortgage is given as
security, or of any other instrument or agreement executed by such obligor
with or in favor of the Bank;
(c) The Mortgagor makes an assignment for the benefit of
creditors, or a receiver, liquidator, or trustee is appointed for the
Mortgagor or any of its property;
(d) Any proceeding under any insolvency or bankruptcy law is
instituted by or against the Mortgagor or any action is taken to realize upon
or any proceeding is instituted to foreclose any mortgage, security interest,
or lien of any kind against the Property; and/or
(e) Any default in the terms, conditions or covenants of any
mortgage, lease, land contract, easement or other instrument which evidences
an interest in the Property by any third party.
19. Bank's Rights Upon Default. Upon occurrence of an Event of
Default all of the Liabilities (regardless of any contrary terms thereof)
shall, at the option of the Bank, be immediately due and payable without
demand or notice, and the Bank may take any one or more of the following
actions not contrary to law:
(a) Foreclose this Mortgage by legal proceedings and collect
its actual attorney fees as awarded by the Court;
(b) Sell, grant, and convey the Property, or cause the Property
to be sold, granted and conveyed at public sale and to execute and deliver to
the purchaser at such sale a good and sufficient deed or deeds of conveyance
at law, pursuant to the statute in such case made and provided and out of the
proceeds of such sale to retain the sums due under this Mortgage and all costs
and charges of the sale (including, without limitation, the attorney fees
provided by statute), rendering the surplus moneys, if any, to the Mortgagor
or as otherwise provided by law, and in the event of a public sale and unless
otherwise prohibited by law, the Property may be sold as one or more parcels,
the Bank may sell the Property for cash and/or secured credit, and the Bank
may give a warranty deed to the purchaser binding upon the Mortgagor and all
claiming under the Mortgagor;
(c) As to the Fixtures, exercise any of the rights and remedies
of a creditor under the Uniform Commercial Code, any other law, and any Court
Rule;
(d) Exercise any and all rights granted to the Bank herein or
in any of the Liabilities; and/or
(e) Take any other action allowed by law.
20. Application of Payments After Default. Notwithstanding
anything to the contrary contained in this Mortgage or in any of the
Liabilities, upon occurrence of an Event of Default under this Mortgage, any
proceeds of any foreclosure, voluntary sale, or other disposition of the
Property shall be applied by the Bank to reduction of the Liabilities in such
order as the Bank shall determine in its sole judgment and the Mortgagor shall
have no right to require the Bank to apply such proceeds to any specific
Liabilities.
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21. Subrogation. Any transferee of, or endorser, guarantor or
surety or other party providing security who pays the Liabilities secured
hereby in full may take over all or any part of the Property and shall succeed
to all rights of the Bank in respect thereto and the Bank shall be under no
further responsibility therefor. No party shall succeed to any of the rights
of the Bank so long as any of the Liabilities remain unpaid to the Bank.
22. Release of Security. The Mortgagor agrees that the Bank may,
without impairing the obligation of the Mortgagor hereunder: release any other
obligors or guarantors from their obligations to pay or perform the
Liabilities; release any security of any obligor or guarantor of the
Liabilities before or after maturity of any of the Liabilities; take, release
or enforce its rights with respect to any of the Property without being
obliged first to do so to any other security, whether owned by the Mortgagor
or any other person; and agree with any obligor of the Liabilities to extend,
modify, forbear or make any accommodations with regard to the terms of the
Liabilities owed by such obligor.
23. WAIVER OF RIGHTS REGARDING SALE BY ADVERTISEMENT. The Mortgagor
understands, acknowledges, and agrees that, upon occurrence of an Event of
Default, the Bank has the right, at its option, to foreclose this Mortgage by
advertisement pursuant to relevant Michigan statutes and that such statutes
provide for notice of a sale solely by advertisement and posting and afford no
right to a hearing to the Mortgagor. The Mortgagor hereby voluntarily and
knowingly agrees and consents to the right of the Bank, at its option, to
foreclose this Mortgage by advertisement and waives its rights, if any, under
the Constitution of the United States and/or the State of Michigan to notice
or a hearing regarding such foreclosure by advertisement, except for the
notice requirements described in the Michigan statutes providing for such
sale.
24. No Consent. Nothing in this Mortgage shall be deemed or
construed in any way as constituting the consent or request by the Bank,
express or implied, to any contractor, subcontractor, laborer, mechanic or
materialman for the performance of any labor or the furnishing of any material
for any improvement, construction, alteration or repair of the Property. The
Mortgagor further agrees that the Bank does not stand in any fiduciary
relationship to the Mortgagor.
25. Indemnity. In addition to payments of the Liabilities,
Mortgagor agrees to indemnify, pay and hold harmless the Bank and any holder
of any of the Liabilities, and the officers, directors, employees, agents and
affiliates of the Bank and such holders (collectively called the
"Indemnitees") from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs
(including, without limitation, settlement costs), expenses or disbursements
of any kind or nature whatsoever (including, without limitation, the
reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitee shall be designated a
party thereto), which may be imposed on, incurred by, or asserted against that
Indemnitee, in any manner relating to or arising out of this Mortgage and/or
its enforcement, the Liabilities, the Bank's relationship with Mortgagor, the
use or intended use of the proceeds of any of the Liabilities or any
environmental matter (the "Indemnified Claims"); provided that Mortgagor shall
have no obligation to an Indemnitee hereunder with respect to Indemnified
Claims if it has been determined by a final decision (after all appeals and
the expiration of time to appeal) by a court of competent jurisdiction that
such Indemnified Claims arose primarily from the gross
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negligence or willful misconduct of that Indemnitee. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, Mortgagor shall contribute the maximum portion which it is permitted
to pay and satisfy under applicable law, to the payment and satisfaction of
all Indemnified Claims incurred by the Indemnitees or any of them.
The foregoing indemnity set forth in this Section 25 shall
include, without limitation, indemnification by Mortgagor to each Indemnitee
for any and all expenses and costs (including, without limitation, remedial,
removal, response, abatement, clean-up, investigative, closure and monitoring
costs), losses, claims (including claims for contribution or indemnity and
including the costs of investigating or defending any claim and whether or not
such claim is ultimately defeated, and whether such claim arose before, during
or after Mortgagor's ownership, operation, possession or control of the
Property, or before, on or after the date hereof, and including also any
amounts paid incidental to any compromise or settlement by the Indemnitees or
any Indemnitee to the holders of any such claim), lawsuits, liabilities,
obligations, actions, judgments, suits, disbursements, encumbrances, liens,
damages (including, without limitation, damages for contamination or
destruction of natural resources), penalties and fines of any kind or nature
whatsoever (including, without limitation, in all cases the reasonable fees
and disbursements of counsel in connection therewith) incurred, suffered or
sustained by that Indemnitee based upon, arising under or relating to any
federal, state or local laws involving the protection of the environment
and/or the disposition of, or exposure to, hazardous or toxic substances, as
now existing or as hereinafter amended or enacted, or any rules, regulations,
guidelines or standards promulgated pursuant thereto, based on, arising out of
or relating to, in whole or in part, the exercise and/or enforcement of any
rights or remedies by any Indemnitee under this Mortgage or any of the
Liabilities, and including, but not limited to, taking title to, owning,
possessing, operating, controlling, managing or taking any action in respect
of the Property. The provisions of this Section 25 shall survive payment of
the Liabilities and termination of this Mortgage.
26. Miscellaneous. The paragraph headings used in this Mortgage are
for convenience only and shall not be used in the interpretation hereof. All
persons signing this Mortgage on behalf of a corporation, partnership, trust
or other entity warrant to the Bank that they are duly and properly authorized
to execute this Mortgage. Nothing in this Mortgage shall waive or restrict any
right of the Bank granted in any other document or by law. No delay on the
part of the Bank in the exercise of any right or remedy shall operate as a
waiver. No single or partial exercise by the Bank of any right or remedy shall
preclude any other future exercise of that right or remedy or the exercise of
any other right or remedy. No waiver or indulgence by the Bank of any default
shall be effective unless in writing and signed by the Bank, nor shall a
waiver on one occasion be construed as a bar to or waiver of that right on any
future occasion. Acceptance of partial or late payments owing on any of the
Liabilities at any time shall not be deemed a waiver of any default. All
rights, remedies and security granted to the Bank herein are cumulative and in
addition to other rights, remedies or security which may be granted elsewhere
or by law. Whenever possible, each provision of this Mortgage shall be
interpreted in such manner as to be effective and valid under applicable law.
If any provision hereof shall be declared invalid or illegal it shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of the provision or the remaining provisions of
this Mortgage. Notice from the Bank to the Mortgagor, if mailed, shall be
deemed given when mailed to the Mortgagor, postage prepaid, at the Mortgagor's
address set forth at the beginning of this Mortgage or at any other address of
the Mortgagor in the
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records of the Bank. Any reference to the Bank shall include any holder of the
Liabilities and any holder shall succeed to the Bank's rights under this
Mortgage. This Mortgage shall bind the respective heirs, personal
representatives, successors and assigns of the Mortgagor. If any payment
applied by the Bank to the Liabilities is subsequently set aside, recovered,
rescinded or otherwise required to be returned or disgorged by the Bank for
any reason (pursuant to bankruptcy proceedings, fraudulent conveyance
statutes, or otherwise), the Liabilities to which the payment was applied
shall for the purposes of this Mortgage be deemed to have continued in
existence, notwithstanding the application, and shall be secured by this
Mortgage as fully as if the Bank had not received and applied the payment.
27. Joint and Several Obligations. If two or more persons execute
this Mortgage as the Mortgagor, the obligations and grants of liens of such
persons herein shall be joint, several, and individual.
28. WAIVER OF JURY TRIAL. MORTGAGOR AND THE BANK EACH HEREBY
KNOWINGLY AND VOLUNTARILY, WITHOUT COERCION, WAIVE ALL RIGHTS TO A TRIAL BY
JURY OF ALL DISPUTES BETWEEN THEM ARISING OUT OF THIS MORTGAGE, ANY OF THE
LIABILITIES, OR ANY ALLEGED ACT OR NEGLECT OF THE BANK.
IN WITNESS WHEREOF, the Mortgagor has executed this Mortgage on the
day and year first above written.
Signed, sealed and delivered in the presence of:
/s/ Lawrence B. Fitch PRAB ROBOTS, INC.
- -----------------------
/s/ Gwendolyn C. Pryor
- ----------------------- By: /s/ Gary A. Herder
-------------------
Gary A. Herder
Its: President
STATE OF MICHIGAN )
)SS:
COUNTY OF KALAMAZOO )
The foregoing instrument was acknowledged before me this 30th day of
October, 1992, by Gary A. Herder, President of Prab Robots, Inc., a Michigan
corporation, on behalf of the corporation.
/s/ Gwendolyn C. Pryor
------------------------
Notary Public
Kalamazoo County, Michigan
My Commission Expires: 10-02-96
This instrument drafted by:
John R. Cook, Esq.
Miller, Canfield, Paddock and Stone
444 West Michigan Avenue
Kalamazoo, Michigan 49007
KZFS1\172100.1\071779-00042
10
AMENDMENT TO MORTGAGE
For good and valuable consideration, receipt of which is hereby
acknowledged, PRAB, INC., formerly known as Prab Robots, Inc., a Michigan
corporation, whose address is 5944 East Kilgore Road, Kalamazoo, Michigan
49003 (herein collectively referred to as "Mortgagor"), and FMB-ARCADIA BANK,
formerly Arcadia Bank, a Michigan banking corporation, 251 East Michigan
Avenue, Kalamazoo 49007 ("Bank") hereby amend and modify the Future Advance
Mortgage between Mortgagor and the Bank dated October 30, 1992, and recorded
on November 2, 1992, in Liber 1599, Pages 0464-0468, Kalamazoo County Records,
(the "Mortgage") by adding the following language as paragraph 29 thereof:
29. Description of Certain Liabilities. The Liabilities secured
by the Mortgage shall include, but not be limited to, the indebtedness and
obligations to the Bank (including future advances) evidenced by the following
instruments and documents.
Name of Instrument Name of Person(s) Date of
(including face amount, if any) Signing Instrument Instrument
------------------------------- ------------------ ----------
$1,800,000 Commercial Term Note Prab, Inc. October 31, 1996
$1,670,000 Commercial Revolving Note Prab, Inc. October 31, 1996
Except as specifically amended above, all terms and conditions of the
Mortgage shall continue in full force and effect. This Amendment is being
filed to give notice of certain Liabilities (as defined in the Mortgage)
existing on the date hereof, but shall not be construed as limiting the
existing or future Liabilities secured by the Mortgage.
IN WITNESS WHEREOF, Mortgagor and the Bank have executed this Amendment
to Mortgage on this 31st day of October, 1996.
WITNESSES:
/s/ Allison A. Batkiewicz PRAB, INC.
- -------------------------
/s/ Linda Heilig By: /s/ Gary A. Herder
- ------------------------- -------------------
Gary A. Herder
Its: President
STATE OF MICHIGAN )
)SS:
COUNTY OF KALAMAZOO )
The foregoing instrument was acknowledged before me this 31st day of
October, 1996, by Gary A. Herder, President of Prab, Inc., a Michigan
corporation, on behalf of the corporation.
/s/ Allison A. Batkiewicz
--------------------------------
Notary Public
Kalamazoo County, Michigan
My commission expires: 5-15-2001
WITNESSES: FMB-ARCADIA BANK
/s/ Allison A. Batkiewicz By: /s/ Lawrence B. Fitch
- ------------------------- ---------------------
Lawrence B. Fitch
/s/ Linda Heilig Its: President
- -------------------------
STATE OF MICHIGAN )
)SS:
COUNTY OF KALAMAZOO )
The foregoing instrument was acknowledged before me this 31st day of
October, 1996, by Lawrence B. Fitch, President of FMB-Arcadia Bank, a Michigan
banking corporation, on behalf of the corporation.
/s/ Allison A. Batkiewicz
-------------------------
Notary Public
Kalamazoo County, Michigan
My commission expires:
This instrument drafted by and
when recorded return to:
Allison A. Batkiewicz
FMB-Arcadia Bank
251 East Michgian Avenue
Kalamazoo, Michigan 49007
KZFS1\172104.1\071779-00042
2