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EXHIBIT 10.25
COMMERCIAL MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FINANCING STATEMENT
This is a Future Advance Mortgage
THIS MORTGAGE is made this 6th day of February, 1995, by MCCLAIN
INDUSTRIES, INC., a Michigan corporation ("Borrower"), whose address is
6200 Elmridge, Sterling Heights, Michigan 48310 to Standard Federal Bank, a
federal savings bank ("Standard Federal"), whose address is 2600 West Big
Beaver Road, Troy, Michigan 48084.
RECITALS:
A. Borrower is justly indebted to Standard Federal in the principal
amount of Two Million and 00/100 Dollars ($2,000,000.00), together with
interest thereon in accordance with a mortgage note from Borrower to Standard
Federal of even date herewith (the "Note").
B. The Note is identified as being secured hereby by a statement thereon.
THEREFORE, in order to secure payment of the principal and interest of such
indebtedness according to the terms of the Note, and all other amounts payable
by Borrower thereunder, and any and all extensions and renewals thereof,
however evidenced, and the performance of the covenants and conditions hereof,
and THE REPAYMENT OF ANY FUTURE ADVANCES, WITH INTEREST THEREON, made to
Borrower by Standard Federal pursuant to the provisions hereof, Borrower does
hereby MORTGAGE and WARRANT to Standard Federal, its successors and assigns
forever, certain real property owned by Borrower and situated in the State of
Michigan, as more particularly described in Exhibit "A" attached hereto (the
"premises"), together with (1) all the estate, title, interest and rights of
Borrower in and to the premises and all buildings and improvements of every
kind and description now or hereafter placed upon the premises or any part
thereof, (2) all heretofore or hereafter vacated alleys and streets abutting
the premises, (3) all furniture, fixtures, equipment and appliances, regardless
of their character as personal property, including, but not limited to, all
lighting, heating, cooling, ventilating, air conditioning, plumbing,
sprinkling, communicating and electrical systems, and machinery, appliances,
fixtures and equipment pertaining thereto, awnings, stoves, refrigerators,
dishwashers, disposals, incinerators, carpeting and drapes, and all other
furniture, fixtures, equipment and appliances of every type, nature and
description, owned by Borrower and now or at any time hereafter related to,
affixed to, attached to, placed upon or used in any way in connection with the
use, occupancy or operation of the premises (except leased equipment and trade
fixtures which, in either case, are readily removable without damaging or
reducing the value or utility of the premises or the improvements thereto), all
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furniture, fixtures, equipment and appliances shall be deemed to be a part of
the premises and covered by the lien hereof, and (4) all of the rents, profits,
and leases thereof and the tenements, hereditaments, easements, privileges and
appurtenances thereto. (Any reference herein to the "Project" shall be deemed
to apply to the above described premises and to such buildings, fixtures,
furniture, equipment and appliances, and to the rents, profits and leases
thereof, and to such tenements, hereditaments, easements, privileges and
appurtenances, unless the context shall require otherwise.)
To have and to hold the Project, with all of the tenements, hereditaments,
easements, appurtenances and other rights and privileges thereunto belonging or
in any manner now or hereafter appertaining thereto, for the use and benefit of
Standard Federal upon the conditions hereinafter set forth.
Borrower does hereby covenant, promise and agree to and with Standard
Federal, which covenants, promises and agreements shall, to the extent
permitted by law, be deemed to run with the land, as follows:
1. Covenant to Pay Indebtedness. Borrower shall pay the principal and
interest of Borrower's indebtedness to Standard Federal according to the terms
of the Note and shall pay the indebtedness to Standard Federal according to the
terms of any future advances secured by this Mortgage and shall pay all other
amounts provided herein.
2. Covenant of Title. At the time of the execution and delivery of this
Mortgage, Borrower is well and truly seized of the Project in fee simple, free
of all easements, liens and encumbrances whatever (other than those easements
of record as of the date hereof and the rights of the public in any part of the
Project used or taken for road purposes), and will forever warrant and defend
the same against any and all other claims whatever, and the lien created hereby
is and will be kept as a first lien upon the Project and every part thereof,
subject only to the foregoing exceptions.
3. Taxes and Assessments. Until the debt secured hereby is fully
satisfied, Borrower will pay all taxes, assessments and all other charges and
encumbrances levied on the Project before any penalty for nonpayment attaches
thereto, and will deliver to Standard Federal, upon request, official receipts
showing such payment. Borrower also shall pay when due all taxes, assessments
and other charges and encumbrances that may be levied upon or on account of
this Mortgage or the indebtedness secured hereby or upon the interest or estate
in the Project created or represented by this Mortgage, whether levied against
Standard Federal or otherwise. In the event payment by Borrower of any tax
referred to in the foregoing sentence would result in the payment of interest
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in excess of the rate permitted by law, then Borrower shall have no obligation
to pay the portion of such tax which would result in the payment of such
excess; provided, however, in such event, at any time after the enactment of a
law providing for such tax, Standard Federal, at its option, may declare the
entire principal balance of the indebtedness secured hereby, together with all
interest thereon, to be due and payable immediately, without notice.
4. Insurance. Until the debt secured hereby is fully satisfied, Borrower
will keep the Project continuously insured against loss by fire, windstorm and
other hazards, casualties and contingencies, including vandalism and malicious
mischief, in such amounts and for such periods as may be required by Standard
Federal. Borrower shall pay promptly when due all premiums for such insurance
and deliver to Standard Federal, without request, receipts showing such
payment. All insurance shall be carried in companies approved by Standard
Federal and the policies and renewals thereof shall be held by, and pledged to,
Standard Federal (unless Standard Federal shall direct or permit otherwise) as
additional security hereunder, and shall have attached thereto a mortgagee
clause acceptable to Standard Federal, making all loss or losses under such
policies payable to Standard Federal, its successors and assigns, as its or
their interest may appear. In the event of loss or damage to the Project,
Borrower shall give immediate notice in writing by mail to Standard Federal,
who may make proof of loss if not made promptly by Borrower.
In the event the amount of the loss is $200,000.00 or less, the insurance
proceeds shall be released to the Borrower, upon request by the Borrower.
Borrower shall be obligated to use such proceeds to restore or repair the
Project unless Standard Federal otherwise specifies in writing.
In the event the amount of the loss is greater than $200,000.00, each
insurance company concerned is hereby authorized and directed upon request by
Standard Federal, to make payment for such loss, to the extent of the
indebtedness hereby secured, directly to Standard Federal instead of to
Borrower and Standard Federal jointly. Provided there has occurred no Event of
Default hereunder nor any event which with notice or the passage of time or
both would become an Event of Default hereunder and further provided that
Standard Federal shall reasonably determine that sufficient funds are available
from insurance proceeds and any funds to be provided by Borrower to repair or
restore the Project within a reasonable time and that such repair or
restoration is economically feasible, Standard Federal agrees, upon request by
the Borrower, to apply the insurance proceeds to repair or restore the Project,
after reimbursement of all costs and expenses of Standard Federal in collecting
such proceeds, subject to the following terms and conditions:
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(a) Standard Federal shall retain all insurance proceeds in a
non-interest bearing escrow account to be disbursed to pay the costs of
repair or restoration in accordance with procedures reasonably established
by Standard Federal.
(b) All plans and specifications for repair or restoration shall be
approved by Standard Federal prior to the commencement of any repair or
restoration.
(c) All repair or restoration shall be done by or under the direction
of Borrower, shall be in accordance with the approved plans and
specifications, shall be in a workmanlike manner free from all defects,
shall be in compliance with all statutes, ordinances, rules and regulations
applicable thereto and shall be completed free of all construction liens
except those being contested in good faith by appropriate proceedings and
with respect to which Borrower shall have provided Standard Federal
satisfactory security.
(d) Standard Federal shall have the right, at Borrower's expense, to
inspect all repairs and restoration and, if Standard Federal reasonably
determines that any work or materials are not in conformity with the
approved plans and specifications or other requirements of sub-paragraph
(c) above, to stop the work and order replacement or correction thereof by
Borrower.
(e) Standard Federal shall not be obligated to make disbursements more
frequently than monthly and the remaining undisbursed proceeds shall always
be sufficient to meet the total estimated remaining costs to complete the
repair or restoration plus 10% of such costs.
(f) All insurance proceeds in excess of the amounts necessary to
repair or restore the Project may be applied, at Standard Federal's option,
to the outstanding principal balance under the Note (without penalty for
prepayment), to fulfill any other covenant herein or any other obligation
of Borrower to Standard Federal, or released to Borrower.
In the event all of the conditions to the use of the insurance proceeds to
repair or restore the Project which are outlined above are not satisfied,
Standard Federal, at its option, may apply the insurance proceeds or any part
thereof, first, toward reimbursement of all costs and expenses of Standard
Federal in collecting such proceeds, and then, to the outstanding principal
balance under the Note (without any penalty for prepayment), to fulfill any
other covenant herein or any other obligation of Borrower to Standard Federal,
or to the restoration or repair of the Project.
Application by Standard Federal of any insurance proceeds to the
outstanding principal balance under the Note shall not excuse
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Borrower from making the regularly scheduled payments due thereunder, nor shall
such application extend or reduce the amount of such payments. In the event of
foreclosure of this Mortgage or other transfer of title to the Project in
extinguishment of the indebtedness secured hereby, all right, title and
interest of Borrower in and to any insurance policies then in force shall pass
to the purchaser or grantee and Borrower hereby appoints Standard Federal its
attorney-in-fact, in Borrower's name, to assign and transfer all such policies
and proceeds to such purchaser or grantee.
5. Standard Federal's Right to Make Expenditures. Should an Event of
Default occur hereunder as a result of Borrower's failure to pay any taxes or
assessments or procure and maintain insurance or make necessary repairs to the
Project, Standard Federal may pay such taxes and assessments, effect such
insurance and make such repairs, and the monies so paid by it shall be a
further lien on the Project, payable forthwith, with interest at the default
rate set forth in the Note. Standard Federal may make advances pursuant to
this paragraph or to paragraph 7 without curing the Event of Default and
without waiving Standard Federal's right of foreclosure or any other right or
remedy of Standard Federal under this Mortgage. The exercise of the right to
make advances pursuant to this paragraph shall be optional with Standard
Federal and not obligatory and Standard Federal shall not be liable in any case
for failure to exercise such right or for failure to continue exercising such
right once having exercised it. Borrower's failure to pay taxes and/or
assessments assessed against the Project, or any installment thereof, or any
insurance premium upon policies covering the Project or any part thereof, shall
constitute waste (although the meaning of the term "waste" shall not
necessarily be limited to such nonpayment), as provided by Act No. 236 of the
Public Acts of Michigan of 1961, as amended, and shall entitle Standard Federal
to all remedies provided for therein. Borrower further agrees to and does
hereby consent to the appointment of a receiver under such statute, should
Standard Federal elect to seek such relief thereunder.
6. Escrow for Taxes and Insurance. Standard Federal, in its sole
discretion, shall be entitled to require Borrower to pay to Standard Federal
monthly such amounts as Standard Federal from time to time estimates as
necessary to create and maintain a reserve fund from which to pay before the
same become due all taxes, assessments and other charges and encumbrances
levied on the Project and premiums for insurance as are herein covenanted to be
paid by Borrower and when such taxes, assessments and other charges and
encumbrances and insurance premiums become due and payable, Standard Federal
shall pay the same to the extent funds are available from the reserve fund;
provided, however, that Standard Federal shall have no liability for any
failure to so pay taxes, assessments and other charges and encumbrances or
insurance premiums for any reason whatsoever. In the event that sufficient
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funds have not been deposited as aforesaid to cover the amount of such taxes,
assessments and other charges and encumbrances and insurance premiums when the
same become due and payable, Borrower shall forthwith upon request by Standard
Federal pay such balance to Standard Federal. Standard Federal shall not be
required to pay Borrower any interest or earnings whatever on the funds held by
Standard Federal for the payment of such taxes, assessments and other charges
and encumbrances or for the payment of insurance premiums, or on any other
funds deposited with Standard Federal in connection with this Mortgage. Upon
the occurrence of an Event of Default under this Mortgage, any of such monies
then remaining on deposit with Standard Federal may be applied against the
indebtedness hereby secured immediately upon or at any time after the
occurrence of an Event of Default, and without notice to Borrower. Further,
Standard Federal may make payments from any of such monies on deposit with
Standard Federal for taxes, assessments, other charges or encumbrances or
insurance premiums on or with respect to the Project notwithstanding that
subsequent owners of the Project may benefit thereby.
7. Waste and Inspection and Repair. Borrower will abstain from and will
not suffer the commission of waste on the Project and will keep the buildings,
improvements, fixtures, equipment and appliances now or hereafter thereon in
good repair and will make replacements thereto as and when the same become
necessary. Borrower will comply promptly with all laws, ordinances,
regulations and orders of all public authorities having jurisdiction over the
Project relating to the use, occupancy and maintenance thereof, and shall upon
request promptly submit to Standard Federal evidence of such compliance.
Nothing herein shall be deemed to prohibit Borrower from contesting the
enforceability or applicability of any law, ordinance, regulation or order;
provided, however, that Standard Federal, in its sole discretion, may require
that Borrower comply with any such law, ordinance, regulation or order during
the pendency of any such contest and all appeals therefrom. In the event the
Project or any part thereof, in the sole judgment of Standard Federal, requires
inspection, repair, care or attention of any kind or nature not theretofore
provided by Borrower within 30 days after notice thereof from Standard Federal
to Borrower, or within such longer time as may be necessary if the repair, care
or attention is of a kind which cannot be completed in 30 days, provided that
Borrower undertakes the repair, care or attention within 30 days after notice
thereof from Standard Federal and thereafter diligently pursues the completion
of same within a reasonable time, Standard Federal may (without being obligated
to do so) enter or cause entry to be made upon the Project and inspect, repair,
and/or maintain the same as Standard Federal may deem necessary or advisable,
and may (without being obligated to do so) make such expenditures and outlays
of money as Standard Federal may deem appropriate for the preservation of the
Project. All expenditures and outlays of money made by Standard Federal
pursuant hereto shall be secured hereby, shall be payable forthwith, and
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shall bear interest at the default rate provided in the Note. Standard Federal
shall have the right at any time, and from time to time, to enter the Project
for the purpose of inspecting the same. Borrower will not permit the Project
or any portion thereof to be used for any unlawful purpose. No building or
other improvement on any part of the Project shall be removed, demolished or
materially altered without the prior written consent of Standard Federal,
except that Borrower shall have the right, without such consent, to remove and
dispose of, free from the lien of this Mortgage, such personalty and equipment
as from time to time may become worn out or obsolete, provided that (a)
simultaneously with or prior to such removal, any such equipment shall be
replaced with other new equipment of like kind and quality, free from any
security interest, lien or encumbrances, and by such removal and replacement,
Borrower shall be deemed to have subjected the replacement equipment to the
lien of this Mortgage; and (b) any net cash proceeds received from such
disposition shall be promptly paid over to Standard Federal to be applied to
the outstanding principal balance under the Note, without any charge for
prepayment.
8. Events of Default. The occurrences listed below shall be deemed
Events of Default hereunder and shall entitle Standard Federal, at its option
and without notice except where required by law and as otherwise provided
herein, to exercise any one or any combination of remedies described in
paragraph 9 or otherwise available to Standard Federal:
(a) If any indebtedness of the Borrower to Standard Federal is not
paid within 10 days after the date due, regardless of whether such
indebtedness has arisen pursuant to the terms of the Note, or any loan
agreement, promissory note, mortgage, security agreement, guaranty,
instrument or other agreement or otherwise.
(b) If any warranty or representation made by or for the Borrower
and/or any endorser or guarantor of the Note ("Guarantor") in connection
with the loan(s) evidenced thereby, or if any financial data or any other
information now or hereafter furnished to Standard Federal by or on behalf
of the Borrower and/or any Guarantor shall prove to be false, inaccurate or
misleading in any material respect, and such default is not cured within 15
days after written notice to the Borrower of such default.
(c) If the Borrower and/or any Guarantor shall fail to perform any
obligation or covenant hereunder, or shall fail to comply with any of the
provisions of the Note or of any loan agreement or other agreement with
Standard Federal to which it may be a party, and such failure is not cured
within 15 days after written notice to the Borrower of such failure.
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(d) If any other Event of Default shall occur under the Note.
(e) If foreclosure or other proceedings to enforce any second mortgage
or any junior security interest, lien or encumbrance of any kind upon the
Project or any portion thereof are instituted and are not dismissed, or
insured against or bonded over in a manner reasonably acceptable to
Standard Federal within ninety (90) days.
(f) If Borrower fails to substantially comply with all of the material
terms, covenants and provisions of any and all leases or other agreements,
documents or restrictions that now encumber, affect or pertain to the
Project or any portion thereof.
9. Remedies. Immediately upon the occurrence of an Event of Default
defined in paragraph 8, Standard Federal shall have the option, in addition to
and not in lieu of or substitution for, all other rights and remedies provided
by law, to do any or all of the following:
(a) Without notice except as expressly required by law, to declare the
principal sum secured by this Mortgage, with all interest thereon and all
other sums secured hereby, to be immediately due and payable, and if the
same is not paid on demand, at Standard Federal's option, to bring suit
therefor; to demand payment of and if the same is not paid on demand, to
bring suit for any delinquent installment payment under the Note or
otherwise; to take any and all steps and institute any and all other
proceedings that Standard Federal deems necessary to enforce the
indebtedness and obligations secured hereby and to protect the lien of this
Mortgage.
(b) Upon the occurrence of any Event of Default arising out of the
existence of any lien upon the Project, Standard Federal shall have the
right (without being obligated to do so or to continue to do so), without
notice to Borrower, to advance on and for the account of Borrower such sums
as Standard Federal in its sole discretion deems necessary to cure such
Event of Default or to induce the holder of any such lien to forbear from
exercising its rights thereunder. The repayment of all such advances, with
interest thereon at the default rate set forth in the Note from the date of
each such advance, shall be secured hereby and shall be immediately due and
payable without demand.
(c) Immediately commence foreclosure proceedings against the Project
pursuant to applicable law. The commencement by Standard Federal of
foreclosure proceedings by advertisement or in equity shall be deemed an
exercise by Standard Federal of its option set forth in paragraph 9(a) to
accelerate the
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due date of all sums secured hereby. Borrower hereby grants power to
Standard Federal upon the occurrence of an Event of Default hereunder, to
grant, bargain, sell, release and convey the Project at public auction or
vendue, and upon such sale to execute and deliver to the purchaser(s)
instruments of conveyance pursuant to the terms hereof and to the
applicable laws. Borrower acknowledges that the foregoing sentence confers
a power of sale upon Standard Federal, and that upon the occurrence of an
Event of Default this Mortgage may be foreclosed by advertisement as
described below and in the applicable Michigan statutes. Borrower
understands that upon the occurrence of an Event of Default, Standard
Federal is hereby authorized and empowered to sell the Project, or cause
the same to be sold and to convey the same to the purchaser in any lawful
manner, including but not limited to that provided by Chapter 32 of the
Revised Judicature Act of Michigan, entitled "Foreclosure of Mortgages by
Advertisement", which permits Standard Federal to sell the Project without
affording Borrower a hearing, or giving him actual personal notice. The
only notice required under such Chapter 32 is to publish notice in a local
newspaper and to post a copy of the notice on the Project.
WAIVER: By conferring this power of sale upon Standard Federal, Borrower,
for itself, its successors and assigns, after an opportunity for
consultation with its legal counsel, hereby voluntarily, knowingly and
intelligently waives all rights under the Constitution and Laws of the
United States and under the Constitution and Laws of the State of Michigan,
both to a hearing on the right to exercise and the exercise of the power of
sale, and to notice except as required by the Michigan statute which
provides for foreclosure of mortgages by advertisement. However, Borrower
reserves the right to timely contest the exercise of the power of sale by
instituting suit against Standard Federal in the circuit court of the
county in which the Project is located or any other court of competent
jurisdiction.
(d) Procure mortgage foreclosure or title reports. Borrower covenants
to pay forthwith to Standard Federal all sums paid for such purposes with
interest at the default rate provided for in the Note, and such sums and
the interest thereon shall constitute a further lien upon the Project.
(e) Procure appraisals, environmental audits and such other
investigations or analyses of the Project as Standard Federal may determine
to be required by regulatory or accounting rules, procedures or practices
or to otherwise be prudent or necessary. Borrower shall grant Standard
Federal free and unrestricted access to the Project for such purposes.
Borrower covenants to pay forthwith to Standard Federal all sums paid for
such purposes with interest at the default rate
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provided for in the Note, and such sums and the interest thereon shall
constitute a further lien upon the Project.
(f) To enter into peaceful possession of the Project and/or to receive
the rent, income and profits therefrom, and to apply the same in accordance
with paragraph 18 hereof.
In connection with Standard Federal's right to possession of the Project
upon the occurrence of an Event of Default, as specified in the foregoing
paragraph, Borrower acknowledges that it has been advised that there is a
significant body of case law in Michigan which purportedly provides that in the
absence of a showing of waste of a character sufficient to endanger the value
of the Project, or other special factors, a mortgagor is entitled to remain in
possession of the Project, and to enjoy the income, rents and profits
therefrom, during the pendency of foreclosure proceedings and until the
expiration of the redemption period, even if the mortgage documents expressly
provide to the contrary. Borrower further acknowledges that it has been
advised that Standard Federal recognizes the value of the security covered
hereby is inextricably intertwined with the effectiveness of the management,
maintenance and general operation of the Project, and that Standard Federal
would not make the loan secured hereby unless it could be assured that it would
have the right to take possession of the Project in order to manage or to
control management thereof, and to enjoy the income, rents and profits
therefrom, immediately upon the occurrence of an Event of Default hereunder,
notwithstanding that foreclosure proceedings may not have been instituted, or
are pending, or the redemption period may not have expired. Accordingly,
Borrower hereby knowingly, intelligently and voluntarily waives all right to
possession of the Project from and after the occurrence of an Event of Default
hereunder, upon demand for possession by Standard Federal, and Borrower agrees
not to assert any objection or defense to Standard Federal's request or
petition to a court for possession. The rights hereby conferred upon Standard
Federal have been agreed upon prior to the occurrence of an Event of Default
hereunder and the exercise by Standard Federal of any such rights shall not be
deemed to put Standard Federal in the status of a "mortgagee in possession".
Borrower acknowledges that this provision is material to this transaction and
that Standard Federal would not make the loan secured hereby but for this
paragraph.
In the event of any sale of the Project by foreclosure, through suit in
equity, by publication or otherwise, the proceeds of any such sale shall be
applied in the following order of priority: (1) to all expenses incurred for
the collection of Borrower's indebtedness and the foreclosure of the Mortgage,
including reasonable attorneys' fees as are permitted by law; (2) to all sums
expended or incurred by Standard Federal directly or indirectly in carrying out
the covenants and agreements of Borrower under this Mortgage, together with
interest thereon; (3) to all
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interest accrued under the Note; (4) to the principal balance of the Note and
the principal balance of any other indebtedness due from Borrower to Standard
Federal; and (5) the surplus, if any, shall be paid to Borrower, unless a
court of competent jurisdiction decrees otherwise.
10. Sale in Parcels. Upon any foreclosure sale of the Project, the same
may be sold either as a whole or in parcels, as Standard Federal may elect, and
if in parcels, the same may be divided as Standard Federal may elect, and at
the election of Standard Federal, may be offered first in parcels and then as a
whole, that offer producing the highest price for the entire Project to
prevail. Any law, statutory or otherwise, to the contrary notwithstanding,
Borrower hereby waives the right to require any such sale to be made in parcels
or the right to select such parcels.
11. Costs of Legal Proceedings. The Borrower shall pay Standard Federal a
reasonable attorney's fee in addition to all other legal costs in case Standard
Federal shall become a party, either as plaintiff or defendant, to any legal
proceedings in relation to the Project or the lien created hereby, which sums
shall be secured hereby and shall be payable forthwith at the default rate set
forth in the Note.
12. Eminent Domain. In the event the entire Project is taken under the
power of eminent domain, the entire award or payment in lieu of condemnation,
to the full extent of the amount secured hereby, shall be paid to Standard
Federal. Standard Federal shall apply such award or payment, first, toward
reimbursement of all of Standard Federal's costs and expenses incurred in
connection with collecting such award or payment, and then, at Standard
Federal's option, to the outstanding principal balance under the Note (without
any penalty for prepayment), to fulfill any other covenant herein or to any
other obligation of Borrower to Standard Federal.
In the event of a partial taking of the Project under the power of eminent
domain, the entire award or payment in lieu of condemnation, to the full extent
of the amount secured hereby, shall be paid over to Standard Federal. Provided
there has occurred no Event of Default hereunder, nor any event which with
notice or the passage of time or both would become an Event of Default
hereunder, and Standard Federal shall reasonably determine that sufficient
funds are available from the award or payment and any funds to be provided by
Borrower to repair or restore the remaining portion of the Project within a
reasonable time and that such repair or restoration is economically feasible,
Standard Federal agrees, upon request by the Borrower, to apply the award or
payment to repair or restore the remaining portion of the Project, after
reimbursement of all costs and expenses of Standard Federal in collecting the
award or payment, subject to the following terms and conditions:
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(a) Standard Federal shall retain the award or payment in a
non-interest bearing escrow account to be disbursed to pay the costs of
repair or restoration in accordance with procedures reasonably established
by Standard Federal.
(b) All plans and specifications for repair or restoration shall be
approved by Standard Federal prior to the commencement of any repair or
restoration.
(c) All repair or restoration shall be done by or under the direction
of Borrower, shall be in accordance with the approved plans and
specifications, shall be in a workmanlike manner free from all defects,
shall be in compliance with all statutes, ordinances, rules and regulations
applicable thereto and shall be completed free of all construction liens
except those being contested in good faith by appropriate proceedings and
with respect to which Borrower shall have provided Standard Federal
satisfactory security.
(d) Standard Federal shall have the right, at Borrower's expense, to
inspect all repairs and restoration and, if Standard Federal reasonably
determines that any work or materials are not in conformity with the
approved plans and specifications or other requirements of sub-paragraph
(c) above, to stop the work and order replacement or correction thereof by
Borrower.
(e) Standard Federal shall not be obligated to make disbursements more
frequently than monthly and the remaining undisbursed proceeds shall always
be sufficient to meet the total estimated remaining costs to complete the
repair or restoration plus 10% of such costs.
(f) All proceeds of the award or payment in excess of the amounts
necessary to repair or restore the Project may be applied, at Standard
Federal's option, to the outstanding principal balance under the Note
(without penalty for prepayment), to fulfill any other covenant herein or
any other obligation of Borrower to Standard Federal, or released to
Borrower.
In the event all of the conditions to the use of the award or payment to
repair or restore the Project which are outlined above are not satisfied,
Standard Federal, at its option, may apply the award or payment or any part
thereof, first, toward reimbursement of all costs and expenses of Standard
Federal in collecting such award or payment, and then, to the outstanding
principal balance under the Note (without any penalty for prepayment), to
fulfill any other covenant herein or any other obligation of Borrower to
Standard Federal, or to the restoration or repair of the Project.
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Application by Standard Federal of any condemnation award or payment or
portion thereof to the outstanding principal balance under the Note shall not
excuse Borrower from making the regularly scheduled payments due thereunder,
nor shall such application extend or reduce the amount of such payments.
Standard Federal is hereby empowered in the name of Borrower to receive, and
give acquittance for, any such award or payment, whether it is joint or
several; provided, however, that Standard Federal shall not be held responsible
for failure to collect any such award or payment, regardless of the cause of
such failure.
13. Books and Records. The Borrower covenants and agrees to furnish to
Standard Federal promptly certificates of occupancy and such other books,
records, documents, information and statements pertaining to the Borrower, the
Project and its operations and any guarantor(s) as Standard Federal may
request. All books, records and other information provided by Borrower
hereunder shall be in a form that is acceptable to Standard Federal and all
costs of providing the same shall be borne entirely by Borrower.
14. Secondary Financing. Borrower will not, without the prior written
consent of Standard Federal, mortgage or pledge the Project or any part thereof
as security for any other loan or obligation of Borrower. If any such mortgage
or pledge is entered into without the prior written consent of Standard
Federal, the entire indebtedness secured hereby, may, at the option of Standard
Federal, be declared immediately due and payable without notice. Further,
Borrower also shall pay any and all other obligations, liabilities or debts
which may become liens, security interests, or encumbrances upon or charges
against the Project for any repairs or improvements that are now or may
hereafter be made thereon, and shall not, without Standard Federal's prior
written consent, permit any lien, security interest, encumbrance or charge of
any kind to accrue and remain outstanding against the Project or any part
thereof, or any improvements thereon, irrespective of whether such lien,
security interest, encumbrance or charge is junior to the lien of this
Mortgage. Notwithstanding the foregoing, if any personal property by way of
additions, replacements or substitutions is hereafter purchased and installed,
affixed or placed by Borrower on the Project under a security agreement, the
lien or title of which is superior to the lien created by this Mortgage, all
the right, title and interest of Borrower in and to any and all such personal
property, together with the benefit of any deposits or payments made thereon by
Borrower, shall nevertheless be and are hereby assigned to Standard Federal and
are covered by the lien of this Mortgage.
15. Payment Upon Acceleration Subject to Any Prepayment Penalty. Upon the
occurrence of an Event of Default by Borrower hereunder and following the
acceleration of maturity as provided in paragraph 9 hereof, a tender of payment
of the amount necessary to satisfy the entire indebtedness secured hereby, made
at any time
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prior to the foreclosure sale by Borrower, or by anyone in behalf of the
Borrower, shall constitute an evasion of the payment terms of the Note and
shall be deemed to be a voluntary prepayment thereunder, and any such payment,
to the extent permitted by law, will therefore include the premium required
under the prepayment privilege, if any, contained in the Note.
16. Security Agreement and Financing Statements. Borrower shall execute,
acknowledge and deliver any and all such further conveyances, documents,
mortgages and assurances as Standard Federal may reasonably require for
accomplishing the purposes hereof, including financing statements required by
Standard Federal to protect its interest under the provisions of the Michigan
Uniform Commercial Code, as amended, forthwith upon the written request of
Standard Federal. Upon any failure of Borrower to do so, Standard Federal may
execute, record, file, re-record and refile any and all such documents for and
in the name of Borrower, and Borrower hereby irrevocably appoints Standard
Federal as agent and attorney-in-fact of Borrower for the foregoing purposes.
This instrument is intended by the parties to be, and shall be construed as, a
security agreement, as that term is defined and used in Article Nine of the
Michigan Uniform Commercial Code, as amended, and shall grant to Standard
Federal a security interest in that portion of the Project with respect to
which a security interest can be granted under Article Nine of the Michigan
Uniform Commercial Code, as amended, which security interest shall include a
security interest in all personalty owned by Borrower, whether now owned or
subsequently acquired, which is or in the future may be physically located on
or affixed to the Project described in Exhibit "A" hereto, regardless of
whether such personalty consists of fixtures under Michigan law, a security
interest in the proceeds and products of the proceeds of all insurance policies
now or hereafter covering all or any part of such collateral. For purposes of
Article Nine of the Michigan Uniform Commercial Code, (a) Borrower herein is
the "debtor", (b) Standard Federal herein is the "secured party", (c)
information concerning the security interest created hereby may be obtained
from Standard Federal at its address set forth on page 1 hereof, and (d)
Borrower's mailing address is that set forth on page 1 hereof.
17. Assignment of Contracts and Agreements. Borrower hereby assigns to
Standard Federal, as further security for the indebtedness secured hereby,
Borrower's interest in all agreements, contracts (including contracts for the
lease or sale of the Project or any portion thereof), licenses and permits
affecting the Project. Such assignment shall not be construed as a consent by
Standard Federal to any agreement, contract, license, or permit so assigned, or
to impose upon Standard Federal any obligations with respect thereto. Borrower
shall not cancel or amend any of the agreements, contracts, licenses and
permits hereby assigned (nor permit any of the same to terminate if they are
necessary or desirable for the operation of the Project), except in the
ordinary
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course of business, without first obtaining, on each occasion, the written
approval of Standard Federal. This paragraph shall not be applicable to any
agreement, contract, license or permit that terminates if it is assigned
without the consent of any party thereto (other than Borrower) or issuer
thereof, unless such consent has been obtained or this assignment is ratified
by such party or issuer; nor shall this paragraph be construed as a present
assignment of any agreement, contract, license or permit that Borrower is
required by law to hold in order to operate the Project for the purposes
intended.
18. Assignment of Leases and Rents. As additional security for the
payment of the indebtedness evidenced by the Note, including interest thereon,
and the performance of all of Borrower's obligations hereunder or secured
hereby, and under any other document executed simultaneously or in connection
herewith, Borrower does hereby sell, assign, transfer and set over unto
Standard Federal, pursuant to Act 210 of the Public Acts of Michigan of 1953,
as amended, all the rents, profits and income under all leases or occupancy
agreements or arrangements, however evidenced or denominated, upon or affecting
the Project (including any extensions, amendments or renewals thereof), whether
such rents, profits and income are due or are to become due, including all such
leases in existence or coming into existence during the period this Mortgage is
in effect. This assignment shall run with the land until this Mortgage is
discharged in full and be good and valid as against Borrower and those claiming
by, under or through Borrower, from the date of recording of this Mortgage.
This assignment shall continue to be operative during the foreclosure or any
other proceedings taken to enforce this Mortgage. In the event of a
foreclosure sale which results 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 does not and shall not be
construed as obligating Standard Federal to perform any of the covenants or
undertakings required to be performed by Borrower in any leases.
Borrower covenants and agrees not to cancel, accept a surrender of, modify
or alter (orally or in writing), reduce the rental under or consent to the
assignment or subletting of the lessee's interest in, any lease affecting the
Project, except in the ordinary course of business and on commercially
reasonable terms, or to make any other assignment, pledge or other disposition
of such leases, or any of them, or of the rents, issues and profits derived
from the use of the mortgaged premises. Any of the above acts, if done without
the written consent of Standard Federal, shall be null and void.
Borrower warrants and represents that all leases or copies of leases which
have been delivered to Standard Federal are in full force and effect and there
are no defaults existing thereunder, and that Borrower has not: (a) executed
any prior assignments
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presently subsisting of any leases or rentals pertaining to the Project, (b)
performed any acts or executed any other instruments which might prevent or
limit Standard Federal's operating under any of the terms and conditions of
this Mortgage, (c) executed or granted any modification whatever of any lease
pertaining to the Project which has not been disclosed to Standard Federal, or
(d) subordinated any lease to the lien of this Mortgage, except on terms
acceptable to Standard Federal.
Until the occurrence of an Event of Default hereunder, Borrower may
receive, collect and enjoy the rents and income from the Project. Upon the
occurrence of an Event of Default under this Mortgage, Standard Federal shall
be entitled to, at its option, to enter upon the Project, or any part thereof,
by its officers, agents, or employees, and: (a) collect the rents and income
from the Project as long as an Event of Default exists and during the pendency
of any foreclosure proceedings and, if there is a deficiency, during any
redemption period, (b) rent or lease the Project or any portion thereof upon
such terms and for such time as it may deem best, (c) operate or maintain the
Project, (d) maintain proceedings to recover rents or possession of the Project
from any tenant or trespasser, and apply the net proceeds of such rent and
income, after payment of all proper charges and expenses, to the following
purposes: (1) payment of all of the costs and expenses incurred by Standard
Federal in exercising its rights under this paragraph; (2) payment of interest
and principal due under the Note; (3) payment of all other sums secured hereby;
(4) payment of expenses of preserving the Project, including taxes and
insurance premiums. Notwithstanding the foregoing, Standard Federal, in its
sole discretion, may change the priorities set forth above for the application
of the net proceeds of such rent and income. The Borrower hereby authorizes
Standard Federal in general to perform all acts necessary for the operation and
maintenance of the Project in the same manner and to the same extent that the
Borrower might reasonably so act. Standard Federal shall only be accountable
for money actually received by it pursuant to the assignment contained in this
paragraph. Such entry and taking possession of the Project, or any part
thereof, by Standard Federal, may be made by actual entry and possession, or by
written notice served personally upon or sent by certified mail to the last
address of the Borrower appearing on the records of Standard Federal, as
Standard Federal may elect, and no further authorization or notice shall be
required. BORROWER HEREBY WAIVES ANY RIGHT TO NOTICE, OTHER THAN THE NOTICE
PROVIDED ABOVE AND WAIVES ANY RIGHT TO ANY HEARING JUDICIAL OR OTHERWISE PRIOR
TO STANDARD FEDERAL EXERCISING ITS RIGHTS UNDER THE ASSIGNMENT CONTAINED IN
THIS PARAGRAPH.
Standard Federal and its duly authorized agents shall be entitled to enter
the Project for the purpose of delivering any and all such notices and other
communications to the tenants and occupiers thereof or to take such other steps
as shall be necessary or desirable in Standard Federal's discretion to exercise
its
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rights hereunder, and Standard Federal and its agents shall have absolutely no
liability to Borrower arising therefrom, except for gross negligence or willful
misconduct. Standard Federal shall not, however, be obligated to give any
tenant or occupier of the Project any notice by personal delivery and Standard
Federal may, in its sole discretion, deliver all such notices and
communications by ordinary first-class U.S. mail, postage prepaid, or
otherwise.
The Borrower irrevocably consents that any lessee or lessees under any
leases covering the Project, upon demand and notice from Standard Federal of
Borrower's default under the Note or this Mortgage, shall pay all rents, issues
and profits under such leases to Standard Federal without any obligation upon
any such lessee or lessees for the determination of the actual existence of any
default.
In the event that Borrower obstructs Standard Federal in its efforts to
collect the rents and income from the Project, or after requested by Standard
Federal, unreasonably refuses, fails or neglects to assist Standard Federal in
collecting such rent and income, Standard Federal shall be entitled to the
appointment of a receiver of the Project and of the income, rents and profits
therefrom, with such powers as the court making such appointment may confer.
The Borrower covenants and agrees to perform and discharge each and every
obligation, covenant, and agreement required to be performed by the landlord
under all leases covering the Project, and should the Borrower fail so to do,
then Standard Federal, but without obligation to do so, and without releasing
the Borrower from any obligation hereof, may make or do the same in such manner
and to such extent as Standard Federal may deem necessary to protect the
security hereof. Nothing herein contained shall be construed to bind Standard
Federal to perform any of the terms and provisions contained in the leases, or
otherwise to impose any obligation upon Standard Federal. Any default by the
Borrower in the performance of any of the obligations contained in this
paragraph, which is not cured within 30 days after notice thereof from Standard
Federal to Borrower, or, if the default is of a kind which cannot be cured
within 30 days, if Borrower fails to undertake the cure of such default within
30 days after notice thereof from Standard Federal to Borrower and thereafter
diligently pursue such cure and complete it within a reasonable time, shall
constitute and be deemed to be a default under the terms of this Mortgage
entitling Standard Federal to exercise the rights and remedies provided by this
Mortgage.
Standard Federal shall at no time have any obligation whatever to attempt
to collect rent from any tenant or occupier of the Project notwithstanding that
such tenants and occupiers may not be paying rent to either Borrower or to
Standard Federal. Further, Standard Federal shall at no time have any
obligation whatever to
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enforce any other obligations owed by tenants or occupiers of the Project to
Borrower. No action taken by Standard Federal under this Mortgage shall put
Standard Federal in the position of a "mortgagee in possession."
Borrower shall at no time collect advance rent under any lease upon,
affecting or pertaining to the Project or any part thereof in excess of one
month (other than as a security deposit) and Standard Federal shall not be
bound in any respect by any rent prepayment made or received in violation of
the terms hereof.
Standard Federal shall have the right to assign the Borrower's right, title
and interest in all leases covering the Project to any subsequent holder of
this Mortgage or the Note, and to assign the same to any person acquiring title
to the Project through foreclosure or otherwise.
19. Environmental Representations and Indemnity. The Borrower represents
and warrants to Standard Federal:
(a) Except as may otherwise be disclosed in a Subsurface Investigation at
5669 East Cork Street, Comstock Park, Michigan, Clayton Project No. 58643.00,
dated November 4, 1994, prepared by Clayton Environmental Consultants, neither
the Borrower nor, to the best of Borrower's knowledge after due inquiry, any
prior owner of the Project or any other person has caused or permitted any
waste, oil, pesticides, or any substance or material of any kind which is
currently known or suspected to be toxic or hazardous, including but not
limited to any substance defined as a "Hazardous Waste" in Title 40, Part 261
of the Code of Federal Regulations, (hereinafter referred to as "Hazardous
Material") to be discharged, dispersed, released, stored, treated, generated,
disposed of, or allowed to escape on, under or at the Project, nor has the
Project, or any part thereof ever been used by the Borrower or, to the best of
Borrower's knowledge after due inquiry, any prior owner of the Project or any
other person, as a dump, storage or disposal site for any Hazardous Material.
(b) To the best of Borrower's knowledge, no asbestos or
asbestos-containing materials have been installed, used, incorporated into, or
disposed of on the Project.
(c) To the best of Borrower's knowledge, no polychlorinated biphenyls
("PCBs") are located on or in the Project, in the form of electrical
transformers, fluorescent light fixtures with ballasts, cooling oils, or any
other device or form.
(d) To the best of Borrower's knowledge, no underground storage tanks are
located on the Project or were located on the Project and subsequently removed
or filled.
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(e) The Borrower (1) has not received any notice of any release or
threatened release of any Hazardous Materials in, under or upon the Project or
of any violation of any environmental or ecological protection laws or
regulations with respect to the Project, and (2) does not know of any basis for
any such notice or violation with respect to the Project.
Borrower hereby indemnifies Standard Federal and agrees to hold Standard
Federal harmless from and against any and all losses, liabilities, damages,
injuries, costs, expenses and claims of any and every kind whatsoever paid,
incurred or suffered by, or asserted against, Standard Federal for, with
respect to, or as a direct or indirect result of (a) the presence on or under,
or the escape, seepage, leakage, spillage, discharge, emission or release from,
the Project of any Hazardous Material, including, without limitation, any
losses, liabilities, damages, injuries, costs, expenses or claims, asserted or
arising under the federal Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., or any other
federal, state or local statute, law, ordinance, code, rule, regulation, order
or decree regulating, relating to or imposing liability or standards of conduct
concerning, any Hazardous Material, the costs of any required or necessary
clean-up or detoxification of the Project, the costs of the preparation of any
clean-up or closure plans and reasonable attorney's fees and costs, or (b) the
presence of any asbestos on the Project (including, without limitation, the
cost of removal) regardless of whether or not caused by, or within the control
of, Borrower.
20. Due on Sale. Standard Federal in making the loan secured by this
Mortgage is relying upon the integrity of Borrower and its undertaking to
maintain the Project. If Borrower should (a) sell, transfer, convey or assign
the Project, or any right, title or interest therein, whether legal or
equitable, whether voluntarily or involuntarily, by outright sale, deed,
installment sale contract, land contract, contract for deed, leasehold interest
(other than leases to tenants) with a term greater than three years, lease
option contract or any other method of conveyance of real property interests;
or (b) cause, permit or suffer any change in the current ownership or
management of the Borrower; or (c) cause, permit or suffer any change in the
current management and control of the Project or in the degree of control
Borrower exercises or is empowered to exercise over the decisions affecting the
ownership and operation of the Project as of the date hereof, then, and in any
such event, Standard Federal shall have the right at its sole option thereafter
to declare all sums secured hereby and then unpaid to be due and payable
forthwith although the period limited for the payment thereof shall not then
have expired, anything contained to the contrary hereinbefore notwithstanding,
and thereupon to exercise all of its rights and remedies under this Mortgage.
If the ownership of the Project, or any part thereof, becomes vested in a
person other than the Borrower (with or without
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Standard Federal's consent), Standard Federal may deal with such successor or
successors in interest with reference to this Mortgage, and the indebtedness
hereby secured, in the same manner as with the Borrower, without in any manner
vitiating, releasing or discharging the Borrower's liability hereunder or upon
the indebtedness hereby secured. No sale of the Project and no forbearance or
extensions by Standard Federal of the time for payment of the indebtedness
hereby secured or the performance of the covenants and agreements herein
provided shall in any way operate to release, discharge, modify, change or
affect the lien of this Mortgage or the liability of Borrower on the Note or
for the performance hereof, either in whole or in part, and the Borrower shall
at all times continue primarily liable on the indebtedness secured hereby until
this Mortgage is fully discharged or Borrower is formally released by an
instrument in writing duly executed by Standard Federal.
21. Binding Effect. Until this Mortgage is discharged in full, all of the
covenants and conditions hereof shall run with the land and shall be binding
upon the successors and assigns of Borrower, and shall inure to the benefit of
the successors and assigns of Standard Federal. Any reference herein to
"Borrower" or "Standard Federal" shall include their respective successors and
assigns.
22. Notices. All notices, demands and requests required or permitted to
be given to Borrower hereunder or by law shall be deemed delivered when
deposited in the United States mail, with full postage prepaid thereon,
addressed to Borrower at the last address of Borrower on the records of
Standard Federal.
23. No Waiver. No waiver by Standard Federal of any right or remedy
granted hereunder shall affect or extend to any other right or remedy of
Standard Federal hereunder, nor affect the subsequent exercise of the same
right or remedy by Standard Federal for any further or subsequent Event of
Default by Borrower hereunder, and all such rights and remedies of Standard
Federal hereunder are cumulative. Time is of the essence.
24. Severability. If any provision(s) hereof are in conflict with any
statute or rule of law of the State of Michigan or are otherwise unenforceable
for any reason whatever, then such provision(s) shall be deemed null and void
to the extent of such conflict or unenforceability, but shall be deemed
separable from and shall not invalidate any other provisions of this Mortgage.
25. Pronouns. If more than one person joins in the execution hereof, or
is of the feminine sex, or a corporation, the pronoun and relative words herein
used shall be read as if in plural, feminine or neuter, respectively.
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26. Future Advances. Upon request of Borrower, Standard Federal at
Standard Federal's option prior to release of this Mortgage, may make future
advances to Borrower. Such future advances, with interest thereon, shall be
secured by this Mortgage when evidenced by promissory notes stating that said
notes are secured hereby.
IN WITNESS WHEREOF, this Mortgage was executed and delivered by the
undersigned on the day and year first above written.
WITNESSES: BORROWER:
MCCLAIN INDUSTRIES, INC.,
a Michigan corporation
By:
- ------------------------------ ---------------------------------
E. James Zabinski
Its: Treasurer
- ------------------------------ --------------------------
STATE OF MICHIGAN )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me this 6th day of
February , 19 , by E. James Zabinski, Treasurer of McClain
Industries, Inc., a Michigan corporation, on behalf of the corporation.
-----------------------------------
Notary Public,
---------------------
County, Michigan
My commission expires:
-------------
DRAFTED BY: WHEN RECORDED RETURN TO:
Daniel C. Watson, Esq. Standard Federal Bank
Standard Federal Bank, a Att: Commercial Loan Department
federal savings bank 2600 West Big Beaver Road
2600 West Big Beaver Road Troy, Michigan 48084
Troy, Michigan 48084
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"EXHIBIT A"
Land in the Township of Comstock, County of Kalamazoo and State of
Michigan, described as:
A parcel of land in the East half of the Southwest quarter of the
Southeast quarter of Section 30, Town 2 South, Range 10 West,
described as follows: commencing at the Southeast corner of the
Southwest quarter of the Southeast quarter of Section 30, Town 2
South, Range 10 West; thence West along the South line of said Section
297.91 feet for the place of beginning of the land hereinafter
described; thence continuing West along said South line 231.91 feet to
a point 132 feet East of the West line of the East half of the
Southwest quarter of the southeast quarter of said Section; thence
North parallel to said West line 802.04 feet to a point 522 feet to a
point 522 feet South of the North line of the Southwest quarter of the
Southwest quarter of said Section; thence East parallel to said North
line 231.95 feet; thence South 802.18 feet to the place of beginning.
Tax Parcel No.: 3907-30-455-060
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