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Exhibit 4.02(b)
AFTER RECORDING, RETURN TO:
METLIFE CAPITAL FINANCIAL CORPORATION
10900 N.E. 4TH STREET, SUITE 500
BELLEVUE, WASHINGTON 98004
ATTENTION: REAL ESTATE DEPARTMENT
LOAN NUMBER: 2406499-001
COMMERCIAL MORTGAGE,
SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS,
AND FIXTURE FILING
THIS MORTGAGE (herein "Instrument") is made as of August 31, 1995, by the
Mortgagor, FRANK'S NURSERY & CRAFTS, INC., a Michigan corporation, whose
address is 6501 E. Nevada, Detroit, Michigan 48234 (herein "Borrower"), in
favor of and for the benefit of the Mortgagee METLIFE CAPITAL FINANCIAL
CORPORATION, a Delaware corporation, whose address is, 10900 N.E. 4th Street,
Suite 500, Bellevue, Washington 98004, Attention: Real Estate Department
(herein "METLIFE").
Borrower, in consideration of the indebtedness herein recited, irrevocably
grants, releases, remises, alienates, mortgages, conveys and assigns unto
METLIFE all of Borrower's estate, right, title and interest, now owned or
hereafter acquired, including any reversion or remainder interest, in the real
property located in Kane County, Illinois described on Exhibit A attached
hereto and incorporated herein including all heretofore or hereafter vacated
alleys and streets abutting the property, and all easements, rights,
appurtenances, tenements, hereditaments, rents, royalties, mineral, oil and gas
rights and profits, water, water rights, and water stock appurtenant to the
property (collectively "Premises");
TOGETHER with all of Borrower's estate, right, title and interest, now
owned or hereafter acquired, in:
a. all buildings, structures, improvements, parking areas, landscaping,
equipment, fixtures and articles of property now or hereafter erected on,
attached to, or used or adapted for use in the operation of the Premises;
including but without being limited to, all heating, air conditioning and
incinerating apparatus and equipment; all boilers, engines, motors, dynamos,
generating equipment, piping and plumbing fixtures, water heaters, ranges,
cooking apparatus and mechanical kitchen equipment, refrigerators, freezers,
cooling, ventilating, sprinkling and vacuum cleaning systems, fire
extinguishing apparatus, gas and electric fixtures, carpeting, floor coverings,
underpadding, elevators, escalators, partitions, mantels, built-in mirrors,
window shades, blinds, draperies, screens, storm sash, awnings, signs,
furnishings of public spaces, halls and lobbies, and shrubbery and plants, and
including also all interest of any owner of the Premises in any of such items
hereafter at any time acquired under conditional sale contract, chattel
mortgage or other title retaining or security instrument, all of which property
mentioned in this clause (a) shall be deemed part of the realty covered by this
Instrument and not severable
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wholly or in part without material injury to the freehold of the Premises (all
of the foregoing together with replacements and additions thereto are referred
to herein as "Improvements"); and
b. all compensation, awards, damages, rights of action and proceeds,
including interest thereon and/or the proceeds of any policies of insurance
therefor, arising out of or relating to a (i) taking or damaging of the
Premises or Improvements thereon by reason of any public or private
improvement, condemnation proceeding (including change of grade), sale or
transfer in lieu of condemnation, or fire, earthquake or other casualty, or
(ii) any injury to or decrease in the value of the Premises or the Improvements
for any reason whatsoever;
c. return premiums or other payments upon any insurance any time
provided for the benefit of or naming METLIFE, and refunds or rebates of taxes
or assessments on the Premises;
d. all the right, title and interest of Borrower in, to and under all
written and oral leases and rental agreements (including extensions, renewals
and subleases; all of the foregoing shall be referred to collectively herein as
the "Leases") now or hereafter affecting the Premises including, without
limitation, all rents, issues, profits and other revenues and income therefrom
and from the renting, leasing or bailment of Improvements and equipment, all
guaranties of tenants' performance under the Leases, and all rights and claims
of any kind that Borrower may have against any tenant under the Leases or in
connection with the termination or rejection of the Leases in a bankruptcy or
insolvency proceeding; and the leasehold estate in the event this Instrument is
on a leasehold;
e. plans, specifications, contracts and agreements relating to the
design or construction of the Improvements; Borrower's rights under any
payment, performance, or other bond in connection with the design or
construction of the Improvements; all landscaping and construction materials,
supplies, and equipment used or to be used or consumed in connection with
construction of the Improvements, whether stored on the Premises or at some
other location; and contracts, agreements, and purchase orders with
contractors, subcontractors, suppliers, and materialmen incidental to the
design or construction of the Improvements;
f. all contracts, accounts, rights, claims or causes of action
pertaining to or affecting the Premises or the Improvements, including, without
limitation, all options or contracts to acquire other property for use in
connection with operation or development of the Premises or Improvements,
management contracts, service or supply contracts, deposits, bank accounts,
general intangibles (including without limitation trademarks, trade names and
symbols), permits, licenses, franchises and certificates, and all commitments
or agreements, now or hereafter in existence, intended by the obligor thereof
to provide Borrower with proceeds to satisfy the loan evidenced hereby or
improve the Premises or Improvements, and the right to receive all proceeds due
under such commitments or agreements including refundable deposits and fees;
g. all books, records, surveys, reports and other documents related to
the Premises, the Improvements, the Leases, or other items of collateral
described herein; and
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h. all additions, accessions, replacements, substitutions, proceeds and
products of the real and personal property, tangible and intangible, described
herein.
All of the foregoing described collateral is exclusive of any furniture,
furnishings or trade fixtures owned and supplied by tenants of the Premises.
The Premises, the Improvements, the Leases and all of the rest of the foregoing
property are herein referred to as the "Property."
TO SECURE TO METLIFE (a) the repayment of the indebtedness evidenced by
Borrower's note dated of even date herewith in the principal sum of SIX HUNDRED
NINETY THOUSAND AND NO/100 DOLLARS ($690,000.00), with interest thereon as set
forth in the note, and all renewals, extensions and modifications thereof and
having a final maturity date of September 1, 2005 (herein the "Note"); (b) the
repayment of any future advances, with interest thereon, made by METLIFE to
Borrower pursuant to Section 29 hereof (herein "Future Advances"); (c) the
payment of all other sums, with interest thereon, advanced in accordance
herewith to protect the security of this Instrument or to fulfill any of
Borrower's obligations hereunder or under the other Loan Documents (as defined
below); (d) the performance of the covenants and agreements of Borrower
contained herein or in the other Loan Documents; (e) the repayment of all sums
now or hereafter owing to METLIFE by Borrower pursuant to any instrument which
recites that it is secured hereby, and (f) the payment and performance of all
of Borrower's obligations to METLIFE under the documents evidencing and/or
securing the following loans by METLIFE to Borrower (collectively, the "Other
Loans"):
(i) MetLife Loan No. 2406499-002 in the original principal amount
of $825,000.00;
(ii) MetLife Loan No. 2406499-003 in the original principal amount
of $975,000.00;
(iii) MetLife Loan No. 2406499-004 in the original principal amount
of $660,000.00;
(iv) MetLife Loan No. 2406499-005 in the original principal amount
of $675,000.00;
(v) MetLife Loan No. 2406499-006 in the original principal amount
of $1,125,000.00;
(vi) MetLife Loan No. 2406499-007 in the original principal amount
of $937,000.00;
(vii) MetLife Loan No. 2406499-009 in the original principal amount
of $1,125,000.00;
(viii) MetLife Loan No. 2406499-010 in the original principal amount
of $825,000.00;
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(ix) MetLife Loan No. 2406499-011 in the original principal amount of
$825,000.00;
(x) MetLife Loan No. 2406499-012 in the original principal amount
of $1,200,000.00; and
(xi) MetLife Loan No. 2406499-013 in the original principal amount
of $855,000.00.
The indebtedness and obligations described in clauses (a)-(f) above are
collectively referred to herein as the "Indebtedness." The Note, this
Instrument, and all other documents evidencing, securing or guarantying the
Indebtedness (except any Certificate and Indemnity Agreement Regarding
Hazardous Substances), as the same may be modified or amended from time to
time, are referred to herein as the "Loan Documents." The terms of the Note
secured hereby may provide that the interest rate or payment terms or balance
due may be indexed, adjusted, renewed, or renegotiated from time to time, and
this Instrument shall continue to secure the Note notwithstanding any such
indexing, adjustment, renewal or renegotiation.
Borrower represents and warrants that Borrower has good, marketable and
insurable title to, and has the right to grant, convey and assign an
indefeasible fee simple estate in, the Premises, Improvements, rents and leases
(or, if this Instrument is on a leasehold, good, marketable and insurable title
to, and the right to convey the leasehold estate and that the ground lease is
in full force and effect without modification except as noted above and without
default on the part of either lessor or lessee thereunder), and the right to
convey the other Property, that the Property is unencumbered except as
disclosed in writing to and approved by METLIFE prior to the date hereof, and
that Borrower will warrant and forever defend unto METLIFE the title to the
Property against all claims and demands, subject only to the permitted
exceptions set forth in Exhibit B attached hereto.
Borrower represents, warrants, covenants and agrees for the benefit of
METLIFE as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly pay when
due the principal of and interest on the Indebtedness, any prepayment and other
charges provided in the Loan Documents and all other sums secured by this
Instrument.
2. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. Upon the occurrence
of an Event of Default (hereinafter defined), and at METLIFE's sole option at
any time thereafter, Borrower shall pay in addition to each monthly payment on
the Note, one-twelfth of the annual real estate taxes, insurance premiums,
assessments, water and sewer rates, ground rents and other charges (herein
"Impositions") payable with respect to the Property (as estimated by METLIFE in
its sole discretion), to be held by METLIFE without interest to Borrower, for
the payment of such obligations.
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If the amount of such additional payments held by METLIFE ("Funds") at the
time of the annual accounting thereof shall exceed the amount deemed necessary
by METLIFE to provide for the payment of Impositions as they fall due, such
excess shall be at Borrower's option, either repaid to Borrower or credited to
Borrower on the next monthly installment or installments of Funds due. If at
any time the amount of the Funds held by METLIFE shall be less than the amount
deemed necessary by METLIFE to pay Impositions as they fall due, Borrower shall
pay to METLIFE any amount necessary to make up the deficiency within thirty
(30) days after notice from METLIFE to Borrower requesting payment thereof.
Upon Borrower's breach of any covenant or agreement of Borrower in this
Instrument, METLIFE may apply, in any amount and in any order as METLIFE shall
determine in METLIFE's sole discretion, any Funds held by METLIFE at the time
of application (i) to pay Impositions which are now or will hereafter become
due, or (ii) as a credit against sums secured by this Instrument. Upon payment
in full of all sums secured by this Instrument, METLIFE shall refund to
Borrower any Funds held by METLIFE.
3. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise,
each complete installment payment received by METLIFE from Borrower under the
Note or this Instrument shall be applied by METLIFE first in payment of amounts
payable to METLIFE by Borrower under Section 2 hereof, then to interest payable
on the Note, then to principal of the Note, and then to interest and principal
on any Future Advances in such order as METLIFE, at METLIFE's sole discretion,
shall determine. Upon Borrower's breach of any covenant or agreement of
Borrower in this Instrument, METLIFE may apply, in any amount and in any order
as METLIFE shall determine in METLIFE's sole discretion, any payments received
by METLIFE under the Note or this Instrument. Any partial payment received by
METLIFE shall, at METLIFE's option, be held in a non-interest bearing account
until METLIFE receives funds sufficient to equal a complete installment
payment.
4. CHARGES, LIENS. Borrower shall pay all Impositions attributable to
the Property in the manner provided under Section 2 hereof or, if not paid in
such manner, by Borrower making payment, when due, directly to the payee
thereof, or in such other manner as METLIFE may designate in writing. With
respect to ad valorem taxes against the Property, Borrower shall pay such taxes
at least thirty (30) days prior to each date on which they become delinquent.
To the extent any such taxes may lawfully be paid in installments without
incurring any penalty or interest, Borrower may pay such taxes in installments
as long as each such installment is paid at least thirty (30) days prior to
delinquency. If requested by METLIFE, Borrower shall promptly furnish to
METLIFE all notices of Impositions which become due, and in the event Borrower
shall make payment directly, Borrower shall promptly furnish to METLIFE
receipts evidencing such payments. Borrower shall promptly discharge any lien
which has, or may have, priority over or equality with, the lien of this
Instrument, and Borrower shall pay, when due, the claims of all persons
supplying labor or materials to or in connection with the Property. Without
METLIFE's prior written permission, Borrower shall not allow any lien inferior
to this Instrument to be perfected against the Property. If any lien inferior
to this Instrument is filed against the Property without METLIFE's prior
written permission and without the consent of Borrower, Borrower shall, within
forty-five (45) days after receiving notice of
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the filing of such lien, cause such lien to be released of record and to
deliver evidence of such release to METLIFE.
5. INSURANCE. Borrower shall obtain and maintain the following types
of insurance upon and relating to the Property:
a. "All Risk" property and fire insurance (with extended coverage
endorsement including malicious mischief and vandalism) in an amount
not less than the full replacement value of the Property (with a
deductible not to exceed $5,000 and with co-insurance limited to a
maximum of 10% of the amount of the policy), naming METLIFE under a
lender's loss payee endorsement (form 438BFU or equivalent) and
including agreed amount, inflation guard, replacement cost and
waiver of subrogation endorsements;
b. Comprehensive general liability insurance in an amount not less
than $2,000,000.00 insuring against personal injury, death and
property damage and naming METLIFE as additional insured;
c. Business interruption insurance covering loss of income for up
to six (6) months; and
d. Such other types of insurance or endorsements to existing
insurance as may be reasonably required from time to time by
METLIFE.
Any insurance coverages required hereunder may be provided under blanket
policies so long as such policies (i) satisfy all of the requirements of this
Section 5, and (ii) are endorsed to specifically name or identify the Property.
Upon each reasonable request of METLIFE, Borrower shall increase the
coverages under any of the insurance policies required to be maintained
hereunder or otherwise modify such policies in accordance with METLIFE's
request. All of the insurance policies required hereunder shall be issued by
corporate insurers licensed to do business in the state in which the Property
is located and rated A:X or better by A.M. Best Company, and shall be in form
acceptable to METLIFE. If and to the extent that the Property is located
within an area that has been or is hereafter designated or identified as an
area having special flood hazards by the Department of Housing and Urban
Development or such other official as shall from time to time be authorized by
federal or state law to make such designation pursuant to any national or state
program of flood insurance, Borrower shall carry flood insurance with respect
to the Property in amounts not less than the maximum limit of coverage then
available with respect to the Property or the amount of the Indebtedness,
whichever is less. Certificates of all insurance required to be maintained
hereunder shall be delivered to METLIFE, along with evidence of payment in full
of all premiums required thereunder, contemporaneously with Borrower's
execution of this Instrument. All such certificates shall be in form
acceptable to METLIFE and shall require the insurance company to give to
METLIFE at least thirty (30) days' prior written notice before canceling the
policy for any reason or materially amending it. Certificates
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evidencing all renewal and substitute policies of insurance shall be delivered
to METLIFE, at least thirty (30) days before termination of the policies being
renewed or substituted. Borrower shall deliver evidence of the payment in full
of the premium for any renewal or substitute policy of insurance to METLIFE
within five (5) days after Borrower's receipt of the invoice for such premium.
If any loss shall occur at any time when Borrower shall be in default
hereunder, METLIFE shall be entitled to the benefit of all insurance policies
held or maintained by Borrower, to the same extent as if same had been made
payable to METLIFE, and upon foreclosure hereunder, METLIFE shall become the
owner thereof. METLIFE shall have the right, but not the obligation, to make
premium payments, at Borrower's expense, to prevent any cancellation,
endorsement, alteration or reissuance of any policy of insurance maintained by
Borrower, and such payments shall be accepted by the insurer to prevent same.
If any act or occurrence of any kind or nature (including any casualty for
which insurance was not obtained or obtainable) shall result in damage to or
destruction of the Property (such event being called a "Loss"), Borrower will
give prompt written notice thereof to METLIFE. All insurance proceeds paid or
payable in connection with any Loss shall be paid to METLIFE. If (i) no Event
of Default has occurred and is continuing hereunder, (ii) Borrower provides
evidence satisfactory to METLIFE of its ability to pay all amounts becoming due
under the Note during the pendency of any restoration or repairs to or
replacement of the Property, and (iii) the available insurance proceeds are, in
METLIFE's judgment, sufficient to fully and completely restore, repair or
replace the Property, Borrower shall have the right to apply all insurance
proceeds received in connection with such Loss either (a) to restore, repair,
replace and rebuild the Property as nearly as possible to its value, condition
and character immediately prior to such Loss, or (b) to the payment of the
Indebtedness in such order as METLIFE may elect. If an Event of Default has
occurred and is continuing hereunder at the time of such Loss, if METLIFE
determines that Borrower will be unable to pay all amounts becoming due under
the Note during the pendency of any restoration or repairs to or replacement of
the Property, or if the available insurance proceeds are insufficient, in
METLIFE's judgment, to fully and completely restore, repair or replace the
Property, then all of the insurance proceeds payable with respect to such Loss
will be applied to the payment of the Indebtedness, or if so instructed by
METLIFE, Borrower will promptly, at Borrower's sole cost and expense and
regardless of whether sufficient insurance proceeds shall be available,
commence to restore, repair, replace and rebuild the Property as nearly as
possible to its value, condition, character immediately prior to such Loss.
Borrower shall diligently prosecute any restoration, repairs or replacement of
the Property undertaken by or on behalf of Borrower pursuant to this Section 5.
All such work shall be conducted pursuant to written contracts approved by
METLIFE in writing. Notwithstanding anything contained herein to the contrary,
in the event the insurance proceeds received by METLIFE following any Loss are
insufficient in METLIFE's judgment to fully and completely restore, repair or
replace the Property, and if Borrower has complied with all of the other
conditions described in this Section 5, Borrower may elect to restore, repair
or replace the Property if it first deposits with METLIFE such additional sums
as METLIFE determines are necessary in order to fully and completely restore,
repair or replace the Property. In the event any insurance proceeds remain
following the restoration, repair or replacement of the Property, such proceeds
shall be applied to the Indebtedness in such order as METLIFE may elect.
Notwithstanding the foregoing, in the event of a Loss in which the damage to
the Property (as
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estimated by a qualified insurance adjuster) is less than $10,000.00, then
provided no Event of Default has occurred which is continuing and that no event
has occurred which with notice, the expiration of any cure period, or both
would constitute an Event of Default, Borrower may apply the insurance proceeds
arising therefrom directly to the repair of the Property without first causing
such proceeds to be paid to METLIFE.
6. PRESERVATION AND MAINTENANCE OF PROPERTY; LEASEHOLDS. Borrower (a)
shall not commit waste or permit impairment or deterioration of the Property,
(b) shall not abandon the Property, (c) shall restore or repair promptly and in
a good and workmanlike manner all or any part of the Property to the equivalent
of its condition as of the date of this Instrument, or such other condition as
METLIFE may approve in writing, in the event of any damage, injury or loss
thereto, whether or not insurance proceeds are available to cover in whole or
in part the costs of such restoration or repair, (d) shall keep the Property,
including all improvements, fixtures, equipment, machinery and appliances
thereon, in good repair and shall replace fixtures, equipment, machinery and
appliances on the Property when necessary to keep such items in good repair,
(e) shall comply with all laws, ordinances, regulations and requirements of any
governmental body applicable to the Property, (f) if all or part of the
Property is for rent or lease, then METLIFE, at its option after the occurrence
of an Event of Default, may require Borrower to provide for professional
management of the Property by a property manager satisfactory to METLIFE
pursuant to a contract approved by METLIFE in writing, unless such requirement
shall be waived by METLIFE in writing, (g) shall generally operate and maintain
the Property in a manner to ensure maximum rentals, and (h) shall give notice
in writing to METLIFE of and, unless otherwise directed in writing by METLIFE,
appear in and defend any action or proceeding purporting to affect the
Property, the security of this Instrument or the rights or powers of METLIFE
hereunder. Neither Borrower nor any tenant or other person, without the
written approval of METLIFE, shall remove, demolish or alter any improvement
now existing or hereafter erected on the Property or any fixture, equipment,
machinery or appliance in or on the Property except when incident to the
replacement of fixtures, equipment, machinery and appliances with items of like
kind.
Borrower represents, warrants and covenants that the Property is and shall
be in compliance with the Americans with Disabilities Act of 1990 and all of
the regulations promulgated thereunder, as the same may be amended from time to
time.
7. USE OF PROPERTY. Unless required by applicable law or unless
METLIFE has otherwise agreed in writing, Borrower shall not allow changes in
the use for which all or any part of the Property was intended at the time this
Instrument was executed. Borrower shall not, without METLIFE's prior written
consent, (i) initiate or acquiesce in a change in the zoning classification
(including any variance under any existing zoning ordinance applicable to the
Property), (ii) cause the use of the Property to become a non-conforming use
under applicable zoning ordinances, (iii) file any subdivision or parcel map
affecting the Property, or (iv) amend, modify or consent to any easement or
covenants, conditions and restrictions pertaining to the Property.
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8. PROTECTION OF METLIFE'S SECURITY. Upon the occurrence of an Event
of Default, or if any action or proceeding is commenced which affects the
Property or title thereto or the interest of METLIFE therein, including, but
not limited to, eminent domain, insolvency, code enforcement, or arrangements or
proceedings involving a bankrupt or decedent, then METLIFE at METLIFE's option
may make such appearances, disburse such sums and take such action as METLIFE
deems necessary, in its sole discretion, to protect METLIFE's interest,
including, but not limited to, (i) disbursement of attorneys' fees, (ii) entry
upon the Property to make repairs, and (iii) procurement of satisfactory
insurance as provided in Section 5 hereof.
Any amounts disbursed by METLIFE pursuant to this Section 8, with
interest thereon, shall become additional Indebtedness of Borrower secured by
this Instrument. Unless Borrower and METLIFE agree to other terms of payment,
such amounts shall be immediately due and payable and shall bear interest from
the date of disbursement at the post-maturity rate stated in the Note. Borrower
hereby covenants and agrees that METLIFE shall be subrogated to the lien of any
mortgage or other lien discharged, in whole or in part, by the Indebtedness.
Nothing contained in this Section 8 shall require METLIFE to incur any expense
or take any action hereunder.
9. INSPECTION. METLIFE may make or cause to be made reasonable entries
upon the Property to inspect the interior and exterior thereof.
10. FINANCIAL DATA. Borrower will furnish to METLIFE, and will cause
each guarantor of the Indebtedness to furnish to METLIFE on request, within
ninety (90) days after the close of its fiscal year, (i) the consolidated annual
balance sheet and profit and loss statements of General Host Corporation
("GHC") for the immediately preceding fiscal year, prepared in accordance with
generally accepted accounting principles and practices consistently applied
and, if METLIFE so requires, accompanied by the annual audit report of an
independent certified public accountant reasonably acceptable to METLIFE, (ii)
an annual operating statement for the immediately preceding fiscal year,
together with a complete rent roll and other supporting data reflecting all
material information with respect to the operation of the Property and
Improvements during the period covered thereby, and (iii) all other financial
information and reports that METLIFE may from time to time reasonably request,
including, if METLIFE so requires, income tax returns of Borrower and any
guarantor of the Indebtedness, and financial statements of any tenant of the
Property designated by METLIFE.
11. CONDEMNATION. If the Property, or any part thereof, shall be
condemned for any reason, including without limitation fire or earthquake
damage, or otherwise taken for public or quasi-public use under the power of
eminent domain, or be transferred in lieu thereof, all damages or other amounts
awarded for the taking of, or injury to, the Property shall be paid to METLIFE
who shall have the right, in its sole and absolute discretion, to apply the
amounts so received against (a) the costs and expenses of METLIFE, including
reasonable attorneys' fees incurred in connection with collection of such
amounts, and (b) the balance against the Indebtedness; provided, however, that
if (i) no Event of Default shall have occurred and be continuing hereunder,
(ii) Borrower provides evidence satisfactory to METLIFE of its ability to pay
all amounts becoming due under the Note during the pendency of any restoration
or
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repairs to or replacement of the Property, and (iii) METLIFE determines, in its
sole discretion, that the proceeds of such award are sufficient to restore,
repair, replace and rebuild the Property as nearly as possible to its value,
condition and character immediately prior to such taking (or, if the proceeds
of such award are insufficient for such purpose, if Borrower provides
additional sums to METLIFE's satisfaction so that the aggregate of such sums
and the proceeds of such award will be sufficient for such purpose), the
proceeds of such award, together with additional sums provided by Borrower,
shall be placed in a separate account for the benefit of METLIFE and Borrower
to be used to restore, repair, replace and rebuild the Property as nearly as
possible to its value, condition and character immediately prior to such
taking. All work to be performed in connection therewith shall be pursuant to
a written contract therefor, which contract shall be subject to the prior
approval of METLIFE. To the extent that any funds remain after the Property
has been so restored and repaired, the same shall be applied against the
Indebtedness in such order as METLIFE may elect. To enforce its rights
hereunder, METLIFE shall be entitled to participate in and control any
condemnation proceedings and to be represented therein by counsel of its own
choice, and Borrower will deliver, or cause to be delivered to METLIFE such
instruments as may be requested by it from time to time to permit such
participation. In the event METLIFE, as a result of any such judgment, decree
or award, believes that the payment or performance of any of the Indebtedness
is impaired, METLIFE may declare all of the Indebtedness immediately due and
payable.
12. BORROWER AND LIEN NOT RELEASED. From time to time, METLIFE may, at
METLIFE's option, without giving notice to or obtaining the consent of
Borrower, Borrower's successors or assigns or of any junior lienholder or
guarantors, without liability on METLIFE's part and notwithstanding Borrower's
breach of any covenant or agreement of Borrower in this Instrument, extend the
time for payment of the Indebtedness or any part thereof, reduce the payments
thereon, release anyone liable on any of the Indebtedness, accept an extension
or modification or renewal note or notes therefor, modify the terms and time of
payment of the Indebtedness, release from the lien of this Instrument any part
of the Property, take or release other or additional security, reconvey any
part of the Property, consent to any map or plan of the Property, consent to
the granting of any easement, join in any extension or subordination agreement,
and agree in writing with Borrower to modify the rate of interest or period of
amortization of the Note or decrease the amount of the monthly installments
payable thereunder. Any actions taken by METLIFE pursuant to the terms of this
Section 12 shall not affect the obligation of Borrower or Borrower's successors
or assigns to pay the sums secured by this Instrument and to observe the
covenants of Borrower contained herein, shall not affect the guaranty of any
person, corporation, partnership or other entity for payment of the
Indebtedness, and shall not affect the lien or priority of the lien hereof on
the Property. Borrower shall pay METLIFE a service charge, together with such
title insurance premiums and attorneys' fees as may be incurred at METLIFE's
option, for any such action if taken at Borrower's request.
13. FORBEARANCE BY METLIFE NOT A WAIVER. Any forbearance by METLIFE
in exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any other right or
remedy. The acceptance by METLIFE of payment of any sum secured by this
Instrument after the due date of such
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payment shall not be a waiver of METLIFE's right to either require prompt
payment when due of all other sums so secured or to declare a default for
failure to make prompt payment. The procurement of insurance or the payment of
taxes or other liens or charges by METLIFE shall not be a waiver of METLIFE's
right to accelerate the maturity of the Indebtedness secured by this
Instrument, nor shall METLIFE's receipt of any awards, proceeds or damages
under Sections 5 and 11 hereof operate to cure or waive Borrower's default in
payment of sums secured by this Instrument.
14. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Instrument is
intended to be a security agreement pursuant to the Uniform Commercial Code for
any of the items specified above as part of the Property which, under
applicable law, may be subject to a security interest pursuant to the Uniform
Commercial Code, and Borrower hereby grants and conveys to METLIFE a first and
prior security interest in all of the Property that constitutes personalty,
whether now owned or hereafter acquired. Borrower agrees that METLIFE may file
this Instrument, or a reproduction thereof, in the real estate records or other
appropriate index, as a financing statement for any of the items specified
above as part of the Property. Any reproduction of this Instrument or of any
other security agreement or financing statement shall be sufficient as a
financing statement. In addition, Borrower agrees to execute and deliver to
METLIFE, upon METLIFE's request, any financing statements, as well as
extensions, renewals and amendments thereof, and reproductions of this
Instrument in such form as METLIFE may require to perfect a security interest
with respect to the foregoing items. Borrower shall pay all costs of filing
such financing statements and any extensions, renewals, amendments and releases
thereof, and shall pay all costs and expenses of any record searches for
financing statements METLIFE may require. Without the prior written consent of
METLIFE, Borrower shall not create or suffer to be created pursuant to the
Uniform Commercial Code any other security interest in said items, including
replacements and additions thereto. Upon Borrower's breach of any covenant or
agreement of Borrower contained in this Instrument, including the covenants to
pay when due all sums secured by this Instrument, METLIFE shall have the
remedies of a secured party under the Uniform Commercial Code, and METLIFE may
also invoke the remedies provided in Section 26 of this Instrument as to such
items. In exercising any of said remedies METLIFE may proceed against the
items of real property and any items of personal property specified above
separately or together and in any order whatsoever, without in any way
affecting the availability of METLIFE's remedies under the Uniform Commercial
Code or of the remedies provided in Section 26 of this Instrument. Within ten
(10) days following any request therefor by METLIFE, Borrower shall prepare and
deliver to METLIFE a written inventory specifically listing all of the personal
property covered by the security interest herein granted, which inventory shall
be certified by Borrower as being true, correct, and complete.
15. LEASES OF THE PROPERTY. As used in this Section 15, the word
"Lease" shall include subleases if this Instrument is on a leasehold. Borrower
shall comply with and observe Borrower's obligations as landlord under all
Leases of the Property or any part thereof. All Leases now or hereafter
entered into will be in form and substance subject to the approval of METLIFE.
All Leases of the Property shall specifically provide that such Leases are
subordinate to this Instrument; that the tenant attorns to METLIFE, such
attornment to be effective upon METLIFE's acquisition of title to the Property;
that the tenant agrees to execute
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such further evidences of attornment as METLIFE may from time to time request;
that the attornment of the tenant shall not be terminated by foreclosure; and
that METLIFE may, at METLIFE's option, accept or reject such attornments.
Borrower shall not, without METLIFE's written consent, request or consent to
the subordination of any Lease of all or any part of the Property to any lien
subordinate to this Instrument. If Borrower becomes aware that any tenant
proposes to do, or is doing, any act or thing which may give rise to any right
of set-off against rent, Borrower shall (i) take such steps as shall be
reasonably calculated to prevent the accrual of any right to a set-off against
rent, (ii) immediately notify METLIFE thereof in writing and of the amount of
said set-offs, and (iii) within ten (10) days after such accrual, reimburse the
tenant who shall have acquired such right to set-off or take such other steps
as shall effectively discharge such setoff and as shall assure that rents
thereafter due shall continue to be payable without set-off or deduction. Upon
METLIFE's receipt of notice of the occurrence of any default or violation by
Borrower of any of its obligations under the Leases, METLIFE shall have the
immediate right, but not the duty or obligation, without prior written notice
to Borrower or to any third party, to enter upon the Property and to take such
actions as METLIFE may deem necessary to cure the default or violation by
Borrower under the Leases. The costs incurred by METLIFE in taking any such
actions pursuant to this paragraph shall become part of the Indebtedness, shall
bear interest at the rate provided in the Note, and shall be payable by
Borrower to METLIFE on demand. METLIFE shall have no liability to Borrower or
to any third party for any actions taken by METLIFE or not taken pursuant to
this paragraph. Borrower represents and warrants to METLIFE that there are no
Leases in effect with respect to the Property as of the date hereof.
16. REMEDIES CUMULATIVE. Each remedy provided in this Instrument is
distinct and cumulative to all other rights or remedies under this Instrument or
afforded by law or equity, and may be exercised concurrently, independently, or
successively, in any order whatsoever.
17. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER;
ASSUMPTION. METLIFE may, at its option, declare all sums secured by this
Instrument to be immediately due and payable, and METLIFE may invoke any
remedies permitted by Section 26 of this Instrument, if title to the Property
is changed without the prior written consent of METLIFE, which consent shall be
at METLIFE's sole discretion. Any transfer of any interest in the Property or
in the income therefrom, by sale, lease (except for leases to tenants in the
ordinary course of managing income property which are approved by METLIFE
pursuant to Section 15 of this Instrument), contract, mortgage, deed of trust,
further encumbrance or otherwise (including any such transfers as security for
additional financing of the Property), and any change in the ownership
interests in Borrower (including any change in the ownership interests of any
legal entities which comprise or control Borrower), except transfers and
changes in ownership by devise or descent, shall be considered a change of
title. METLIFE shall have the right to condition its consent to any proposed
sale or transfer described in this Section 17 upon, among other things,
METLIFE's approval of the transferee's creditworthiness and management ability,
and the transferee's execution, prior to the sale or transfer, of a written
assumption agreement containing such terms as METLIFE may require, including,
if required by METLIFE, the imposition of an assumption fee of one percent
(1%)
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of the then outstanding balance of the Indebtedness. Consent by METLIFE to one
transfer of the Property shall not constitute consent to subsequent transfers
or waiver of the provisions of this Section 17. No transfer by Borrower shall
relieve Borrower of liability for payment of the Indebtedness. Notwithstanding
anything contained herein to the contrary, sales and purchases of the stock of
GHC on public stock exchanges shall not violate this Section 17, so long as no
more than twenty percent (20%) of GHC's stock is purchased by one (1) person or
entity, either in a single transaction or in a series of transactions.
18. NOTICE. Except for any notice required under applicable law to be
given in another manner, any and all notices, elections, demands, or requests
permitted or required to be made under this Instrument or under the Note shall
be in writing, signed by the party giving such notice, election, demand or
request, and shall be delivered personally, by telegram, or sent by registered,
certified, or Express United States mail, postage prepaid, or by Federal
Express or similar service requiring a receipt, to the other party at the
address stated above, or to such other party and at such other address within
the United States of America as any party may designate in writing as provided
herein. The date of receipt of such notice, election, demand or request shall
be the earliest of (i) the date of actual receipt, (ii) three (3) days after
the date of mailing by registered or certified mail, (iii) one (1) day after
the date of mailing by Express Mail or the delivery (for redelivery) to Federal
Express or another similar service requiring a receipt, or (iv) the date of
personal delivery (or refusal upon presentation for delivery).
19. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
CAPTIONS. The covenants and agreements herein contained shall bind, and the
rights hereunder shall inure to, the respective heirs, successors and assigns
of METLIFE and Borrower, subject to the provisions of Section 17 hereof. If
Borrower is comprised of more than one person or entity, whether as
individuals, partners, partnerships or corporations, each such person or entity
shall be jointly and severally liable for Borrower's obligations hereunder. In
exercising any rights hereunder or taking any actions provided for herein,
METLIFE may act through its employees, agents or independent contractors as
authorized by METLIFE. The captions and headings of the sections of this
Instrument are for convenience only and are not to be used to interpret or
define the provisions hereof.
20. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives the right
to assert any statute of limitations as a bar to the enforcement of the lien of
this Instrument or to any action brought to enforce the Note or any other
obligation secured by this Instrument.
21. WAIVER OF MARSHALLING. Notwithstanding the existence of any other
security interests in the Property held by METLIFE or by any other party,
METLIFE shall have the right to determine the order in which any or all of the
Property shall be subjected to the remedies provided herein. METLIFE shall
have the right to determine the order in which any or all portions of the
Indebtedness secured hereby are satisfied from the proceeds realized upon the
exercise of the remedies provided herein. Borrower, any party who consents to
this Instrument and any party who now or hereafter acquires a security interest
in the Property and who has actual or constructive notice hereof hereby waives
any and all right to require the
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marshalling of assets in connection with the exercise of any of the remedies
permitted by applicable law or provided herein.
22. HAZARDOUS WASTE. Borrower has furnished to METLIFE a Phase I
Environmental Site Assessment Update dated August, 1995, prepared by CRC
Environmental Risk Management, Inc., and an Environmental Questionnaire dated
August 29, 1995 (collectively, the "Report"). Except as disclosed to METLIFE
in the Report, Borrower has received no notification of any kind suggesting
that the Property or any adjacent property is or may be contaminated with any
hazardous waste or materials or is or may be required to be cleaned up in
accordance with any applicable law or regulation; and Borrower further
represents and warrants that, except as previously disclosed to METLIFE in
writing, to the best of its knowledge as of the date hereof after due and
diligent inquiry, there are no hazardous waste or materials located in, on or
under the Property (except for fertilizer and other materials sold at retail by
Borrower, which materials are stored and sold in accordance with all applicable
laws), or incorporated in any Improvements, nor has the Property ever been used
as a landfill or a waste disposal site, or a manufacturing, handling, storage,
distribution or disposal facility for hazardous waste or materials. As used
herein, the term "hazardous waste or materials" includes any substance or
material defined in or designated as hazardous or toxic wastes, hazardous or
toxic material, a hazardous, toxic or radioactive substance, or other similar
term, by any federal, state or local statute, regulation or ordinance now or
hereafter in effect. Borrower shall promptly comply with all statutes,
regulations and ordinances, and with all orders, decrees or judgments of
governmental authorities or courts having jurisdiction, relating to the use,
collection, treatment, disposal, storage, control, removal or cleanup of
hazardous waste or materials in, on or under the Property or any adjacent
property, or incorporated in any Improvements, at Borrower's expense. In the
event that METLIFE at any time has a reasonable belief that the Property is not
free of all hazardous waste or materials or that Borrower has violated any
applicable environmental law with respect to the Property, then immediately,
upon request by METLIFE, Borrower shall obtain and furnish to METLIFE, at
Borrower's sole cost and expense, an environmental audit and inspection of the
Property from an expert satisfactory to METLIFE. In the event that Borrower
fails to immediately obtain such audit or inspection, METLIFE or its agents may
perform or obtain such audit or inspection at Borrower's sole cost and expense.
METLIFE may, but is not obligated to, enter upon the Property and take such
actions and incur such costs and expenses to effect such compliance as it deems
advisable to protect its interest in the Property; and whether or not Borrower
has actual knowledge of the existence of hazardous waste or materials on the
Property or any adjacent property as of the date hereof, Borrower shall
reimburse METLIFE as provided in Section 23 below for the full amount of all
costs and expenses incurred by METLIFE prior to METLIFE acquiring title to the
Property through foreclosure or acceptance of a deed in lieu of foreclosure, in
connection with such compliance activities. Neither this provision nor any of
the other Loan Documents shall operate to put METLIFE in the position of an
owner of the Property prior to any acquisition of the Property by METLIFE. The
rights granted to METLIFE herein and in the other Loan Documents are granted
solely for the protection of METLIFE's lien and security interest covering the
Property, and do not grant to METLIFE the right to control Borrower's actions,
decisions or policies regarding hazardous waste or materials.
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23. ADVANCES, COSTS AND EXPENSES. Borrower shall pay within ten (10)
days after written demand from METLIFE all sums advanced by METLIFE and all
costs and expenses incurred by METLIFE in taking any actions pursuant to the
Loan Documents including attorneys' fees and disbursements, accountants' fees,
appraisal and inspection fees and the costs for title reports and guaranties,
together with interest thereon at the rate applicable under the Note after an
Event of Default from the date such costs were advanced or incurred. All such
costs and expenses incurred by METLIFE, and advances made, shall constitute
advances under this Instrument to protect the Property and shall be secured by
and have the same priority as the lien of this Instrument. If Borrower fails
to pay any such advances, costs and expenses and interest thereon, METLIFE may
apply any undisbursed loan proceeds to pay the same, and, without foreclosing
the lien of this Instrument, may at its option commence an independent action
against Borrower for the recovery of the costs, expenses and/or advances, with
interest, together with costs of suit, costs of title reports and guaranty of
title, disbursements of counsel and reasonable attorneys' fees incurred therein
or in any appeal therefrom.
24. ASSIGNMENT OF LEASES AND RENTS. Borrower, for good and valuable
consideration, the receipt of which is hereby acknowledged, to secure the
Indebtedness, does hereby absolutely and unconditionally grant, bargain, sell,
transfer, assign, convey, set over and deliver unto METLIFE all right, title
and interest of Borrower in, to and under the Leases of the Property, whether
now in existence or hereafter entered into, and all guaranties, amendments,
extensions and renewals of said Leases and any of them, and all rents, income
and profits which may now or hereafter be or become due or owing under the
Leases, and any of them, or on account of the use of the Property.
Borrower represents, warrants, covenants and agrees with METLIFE as
follows:
a. The sole ownership of the entire lessor's interest in the
Leases is vested in Borrower, and Borrower has not, and shall
not, perform any acts or execute any other instruments which
might prevent METLIFE from fully exercising its rights with
respect to the Leases under any of the terms, covenants and
conditions of this Instrument.
b. The Leases are and shall be valid and enforceable in
accordance with their terms and have not been and shall not be
altered, modified, amended, terminated, canceled, renewed or
surrendered except as approved in writing by METLIFE. The
terms and conditions of the Leases have not been and shall not
be waived in any manner whatsoever except as approved in
writing by METLIFE.
c. Borrower shall not materially alter the term or the amount of
rent payable under any Lease without prior written notice to
METLIFE and METLIFE's consent, which shall not be unreasonably
withheld.
d. To the best of Borrower's knowledge, there are no defaults now
existing under any of the Leases and there exists no state of
facts which, with the
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giving of notice or lapse of time or both, would constitute a
default under any of the Leases.
e. Borrower shall give prompt written notice to METLIFE of any
notice received by Borrower claiming that a default has occurred
under any of the Leases on the part of Borrower, together with a
complete copy of any such notice.
f. Each of the Leases shall remain in full force and effect
irrespective of any merger of the interest of lessor and any
lessee under any of the leases.
g. Borrower will not permit any Lease to become subordinate to any
lien other than the lien of this Instrument.
This assignment is absolute, is effective immediately, and is irrevocable
by Borrower so long as the Indebtedness remains outstanding. Notwithstanding
the foregoing, until a Notice is sent to Borrower in writing that an Event of
Default has occurred (which notice is hereafter called a "Notice"), Borrower
may receive, collect and enjoy the rents, income and profits accruing from the
Property.
Upon the occurrence of an Event of Default hereunder, METLIFE may, at its
option, after service of a Notice, receive and collect all such rents, income
and profits from the Property as they become due. METLIFE shall thereafter
continue to receive and collect all such rents, income and profits, as long as
such default or defaults shall exist, and during the pendency of any
foreclosure proceedings.
Borrower hereby irrevocably appoints METLIFE its true and lawful attorney
with power of substitution and with full power for METLIFE in its own name and
capacity or in the name and capacity of Borrower, from and after service of a
Notice, to demand, collect, receive and give complete acquittances for any and
all rents, income and profits accruing from the Property, either in its own
name or in the name of Borrower or otherwise, which METLIFE may deem necessary
or desirable in order to collect and enforce the payment of the rents, income
and profits of and from the Property. Lessees of the Property are hereby
expressly authorized and directed, following receipt of a Notice from METLIFE,
to pay any and all amounts due Borrower pursuant to the Leases to METLIFE or
such nominee as METLIFE may designate in a writing delivered to and received by
such lessees, and the lessees of the Property are expressly relieved of any and
all duty, liability or obligation to Borrower in respect of all payments so
made.
Upon the occurrence of any Event of Default, from and after service of a
Notice, METLIFE is hereby vested with full power to use all measures, legal and
equitable, deemed by it to be necessary or proper to enforce this Section 24
and to collect the rents, income and profits assigned hereunder, including the
right of METLIFE or its designee, to enter upon the Property, or any part
thereof, and take possession of all or any part of the Property together with
all personal property, fixtures, documents, books, records, papers and accounts
of
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Borrower relating thereto, and METLIFE may exclude Borrower, its agents and
servants, wholly therefrom. Borrower hereby grants full power and authority to
METLIFE to exercise all rights, privileges and powers herein granted at any and
all times after service of a Notice, with full power to use and apply all of
the rents and other income herein assigned to the payment of the costs of
managing and operating the Property and of any indebtedness or liability of
Borrower to METLIFE, including but not limited to the payment of taxes, special
assessments, insurance premiums, damage claims, the costs of maintaining,
repairing, rebuilding and restoring the improvements on the Property or of
making the same rentable, reasonable attorneys' fees incurred in connection
with the enforcement of this Instrument, and of principal and interest payments
due from Borrower to METLIFE on the Note and this Instrument, all in such order
as METLIFE may determine. METLIFE shall be under no obligation to exercise or
prosecute any of the rights or claims assigned to it hereunder or to perform or
carry out any of the obligations of the lessor under any of the Leases and does
not assume any of the liabilities in connection with or arising or growing out
of the covenants and agreements of Borrower in the Leases. It is further
understood that the assignment set forth in this Section 24 shall not operate
to place responsibility for the control, care, management or repair of the
Property, or parts thereof, upon METLIFE, nor shall it operate to make METLIFE
liable for the performance of any of the terms and conditions of any of the
Leases, or for any waste of the Property by any lessee under any of the Leases,
or any other person, or for any dangerous or defective condition of the
Property or for any negligence in the management, upkeep, repair or control of
the Property resulting in loss or injury or death to any lessee, licensee,
employee or stranger.
25. DEFAULT. The following shall each constitute an event of default
("Event of Default"):
a. Failure of or refusal by Borrower to pay any portion of the
sums secured by this Instrument when due, and such failure or refusal shall
continue for a period of ten (10) days after written notice is given to
Borrower by METLIFE specifying such failure; or
b. Failure of Borrower within the time required by this
Instrument to make any payment for taxes, insurance or for reserves for such
payments, or any other payment necessary to prevent filing of or discharge of
any lien, and such failure shall continue for a period of ten (10) days after
written notice is given to Borrower by METLIFE specifying such failure; or
c. Failure by Borrower to observe or perform any obligations of
Borrower to METLIFE on or with respect to any transactions, debts, undertakings
or agreements other than the transaction evidenced by the Note; or
d. Failure of Borrower to make any payment or perform any
obligation under any superior liens or encumbrances on the Property, within the
time required thereunder, or commencement of any suit or other action to
foreclose any superior liens or encumbrances; or
e. Failure by Borrower to observe or perform any of its
obligations under any of the Leases; or
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f. The Property is transferred or any agreement to transfer any
part or interest in the Property in any manner whatsoever is made or entered
into without the prior written consent of METLIFE; or
g. If any lien or encumbrance is filed against the Property,
without METLIFE's prior written consent, and the same is not discharged in
accordance with Section 4 hereof; or
h. If any lease agreement covering any portion of the Property
is executed by Borrower without MetLife's prior written consent; or
i. Filing by Borrower of a voluntary petition in bankruptcy or
filing by Borrower of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief for itself under any present or future federal, state or other statute,
law or regulation relating to bankruptcy, insolvency or other relief for
debtors, or the seeking, consenting to, or acquiescing by Borrower in the
appointment of any trustee, receiver, custodian, conservator or liquidator for
Borrower, any part of the Property, or any of the income or rents of the
Property, or the making by Borrower of any general assignment for the benefit
of creditors, or the inability of or failure by Borrower to pay its debts
generally as they become due, or business failure of Borrower, or the making or
suffering of a preference within the meaning of federal bankruptcy law or the
making of a fraudulent transfer under applicable federal or state law, or
concealment by Borrower of any of its property in fraud of creditors, or the
imposition of a lien upon any of the property of Borrower which is not
discharged in the manner permitted by Section 4 of this Instrument, or the
giving of notice by Borrower to any governmental body of insolvency or
suspension of operations; or
j. Filing of a petition against Borrower seeking any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief under any present or future federal, state or other law or regulation
relating to bankruptcy, insolvency or other relief for debts, or the
appointment of any trustee, receiver, custodian, conservator or liquidator of
Borrower, of any part of the Property or of any of the income or rents of the
Property, unless such petition shall be dismissed within sixty (60) days after
such filing, but in any event prior to the entry of an order, judgment or
decree approving such petition; or
k. The institution of any proceeding for the dissolution or
termination of Borrower voluntarily, involuntarily, or by operation of law,
and, in the event such proceeding is involuntary, if the same is not dismissed
within sixty (60) days after it is commenced; or
l. A material adverse change occurs in the assets, liabilities
or net worth of Borrower or any of the guarantors of the indebtedness evidenced
by the Note from the assets, liabilities or net worth of Borrower or any of the
guarantors of the indebtedness evidenced by the Note previously disclosed to
METLIFE; or
m. Any warranty, representation or statement furnished to
METLIFE by or on behalf of Borrower under the Note, this Instrument, any of the
other Loan Documents or the
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Certificate and Indemnity Agreement Regarding Hazardous Substances,
shall prove to have been false or misleading in any material respect; or
n. Failure of Borrower to observe or perform any other covenant
or condition contained in the Note and such default shall continue for thirty
(30) days after notice is given to Borrower specifying the nature of the
failure. No notice of default and no opportunity to cure shall be required if
during the prior twelve (12) months METLIFE has already sent two (2) notices to
Borrower concerning default in performance of the same obligation; or
o. Failure of Borrower to observe or perform any other
obligation under this Instrument, any other Loan Document or the Certificate
and Indemnity Regarding Hazardous Substances when such observance or
performance is due, and such failure shall continue beyond the applicable cure
period set forth in such Loan Document, or if the default cannot be cured
within such applicable cure period, Borrower fails within such time to commence
and pursue curative action with reasonable diligence or fails at any time after
expiration of such applicable cure period to continue with reasonable diligence
all necessary curative actions. No notice of default and no opportunity to
cure shall be required if during the prior twelve (12) months METLIFE has
already sent two (2) notices to Borrower concerning default in performance of
the same obligation; or
p. Any of the foregoing events described in subparagraphs (i)-(l)
above occur with respect to any guarantor of any of Borrower's obligations in
connection with the Indebtedness; or
q. The occurrence of any Event of Default under any of the
documents evidencing or securing the Other Loans.
26. RIGHTS AND REMEDIES ON DEFAULT.
Upon the occurrence of any Event of Default and at any time thereafter,
METLIFE may exercise any one or more of the following rights and remedies:
a. METLIFE may declare the entire Indebtedness, including the
then unpaid principal balance on the Note, the accrued but unpaid interest
thereon, court costs and attorney's fees hereunder immediately due and payable,
without notice, presentment, protest, demand or action of any nature whatsoever
(each of which hereby is expressly waived by Borrower), whereupon the same
shall become immediately due and payable. Additionally, METLIFE shall not be
required to make any further advances on the Note or other Loan Documents upon
the occurrence of an Event of Default or an event which, with the giving of
notice or passing of time, would constitute an Event of Default.
b. METLIFE may enter upon the Property and take exclusive
possession thereof and of all books, records and accounts relating thereto
without notice and without being guilty of trespass, and hold, lease, manage,
operate or otherwise use or permit the use of the Property, either itself or by
other persons, firms or entities, in such manner, for such time and
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upon such other terms as METLIFE may deem to be prudent and reasonable under
the circumstances (making such repairs, alterations, additions and improvements
thereto and taking any and all other action with reference thereto, from time
to time, as METLIFE shall deem necessary or desirable), and apply all rents and
other amounts collected by METLIFE in connection therewith in accordance with
the provisions of subsection (h) of this Section 26. Borrower hereby
irrevocably appoints METLIFE as the agent and attorney-in-fact of Borrower,
with full power of substitution, and in the name of Borrower, if METLIFE elects
to do so, to (i) endorse the name of Borrower on any checks or drafts
representing proceeds of the insurance policies, or other checks or instruments
payable to Borrower with respect to the Property, (ii) prosecute or defend any
action or proceeding incident to the Property, and (iii) take any action with
respect to the Property that METLIFE may at any time and from time to time deem
necessary or appropriate. METLIFE shall have no obligation to undertake any
of the foregoing actions, and if METLIFE should do so, it shall have no
liability to Borrower for the sufficiency or adequacy of any such actions taken
by METLIFE.
c. METLIFE may foreclose the lien hereof in accordance with the
laws of the State of Illinois, and:
(1) in any suit or proceeding to foreclose the lien
hereof, there shall be allowed and included as additional Indebtedness in the
decree for sale, all expenditures and expenses which may be paid or incurred by
or on behalf of METLIFE for attorneys' fees, appraisers' fees, outlays for
documentary and expert evidence, stenographers' charges, publication costs and
costs (which may be estimated as to items to be expended after entry of the
decree) of procuring all such abstracts of title, title searches and
examinations, title insurance policies, and similar data and assurances with
respect to title, as METLIFE may deem reasonably necessary either to prosecute
such suit or to evidence to bidders at sales which may be had pursuant to such
decree the true conditions of the title or to the value of the Property; and
(2) all expenditures and expenses of the nature mentioned
in this subparagraph c, and such expenses and fees as may be incurred in the
protection of the Property in the maintenance of the lien of this Instrument,
including the fees of any attorney employed by METLIFE in any litigation and
proceedings affecting this Instrument, the Note or the Property or the rights
of METLIFE hereunder or as to which METLIFE may be made a party by virtue of
its interest in the Property pursuant to this Instrument or otherwise,
including probate and bankruptcy proceedings, or in preparation for the
commencement or defense of any proceeding or threatened suit or proceeding,
shall constitute so much additional Indebtedness, and shall be immediately due
and payable by Borrower, with interest thereon at the default rate as indicated
in the Note.
d. After sale of the Property, or any portion thereof, Borrower
will be divested of any and all interest and claim thereto, including any
interest or claim to all insurance policies, bonds, loan commitments and other
intangible property covered hereby. Additionally, Borrower will be considered
a tenant at sufferance of the purchaser of the Property, and said purchaser
shall be entitled to immediate possession thereof, and if Borrower shall fail
to vacate
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the Property immediately, the purchaser may and shall have the right, without
further notice to Borrower, to go into any justice court in any precinct or
county in which the Property is located and file an action in forcible entry
and detainer, which action shall lie against Borrower or its assigns or legal
representatives, as a tenant at sufferance. This remedy is cumulative of any
and all remedies the purchaser may have hereunder or otherwise.
e.(1) Upon, or at any time after, the filing of a complaint to foreclose
this Instrument, the court in which such complaint is filed may appoint a
receiver of the Property. Such appointment shall be a matter of strict right
and Borrower hereby irrevocably consents thereto. Such appointment may be made
either before or after sale, without notice to Borrower, without regard to
solvency or insolvency of Borrower at the time of application of such receiver,
and without regard to the then value of the Property or whether the same shall
be then occupied as a homestead or not, and METLIFE, or any holder of the Note,
may be appointed as such receiver. Such receiver shall have the power to
collect the rents during the pendency of such foreclosure suit and, in case of
a sale and a deficiency, during the full statutory period of redemption, if
any, whether there be a redemption or not, as well as during any further times
when Borrower, except for the intervention of such receiver, would be entitled
to collection of such rents and all other powers which may be necessary or are
usual in such cases for the protection, possession, control, management and
operation of the Property during the whole of said period. Such receiver shall
apply the income from the Property in accordance with the provisions of
subsection (h) of this Section 26.
(2) METLIFE may exercise any and all other rights, remedies and recourses
granted under the Loan Documents or now or hereafter existing in equity, at
law, by virtue of statute or otherwise.
f. METLIFE shall have all rights, remedies and recourses granted in the
Loan Documents and available at law or equity (including specifically those
granted by the Uniform Commercial Code in effect and applicable to the
Property or any portion thereof) and the same (i) shall be cumulative and
concurrent; (ii) may be pursued separately, successively or concurrently
against Borrower, any guarantor of the Indebtedness or others obligated under
the Note, or against the Property, or against any one or more of them at the
sole discretion of METLIFE; (iii) may be exercised as often as occasion
therefor shall arise, it being agreed by Borrower that the exercise or failure
to exercise any of the same shall in no event be construed as a waiver or
release thereof or of any other right, remedy or recourse; and (iv) are
intended to be, and shall be, nonexclusive.
g. To the fullest extent permitted by law, Borrower hereby irrevocably and
unconditionally waives and releases (i) all benefits that might accrue to
Borrower by any present or future laws exempting the Property from attachment,
levy or sale on execution or providing for any appraisement, valuation, stay of
execution, exemption from civil process, redemption or extension of time for
payment; (ii) all notices of any Event of Default (except as may be
specifically provided for under the terms hereof), presentment, demand, notice
of intent to accelerate, notice of acceleration and any other notice of
METLIFE's election to exercise or the actual exercise of any right, remedy or
recourse provided for under the Loan Documents; (iii)
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any right to appraisal or marshalling of assets or a sale in inverse order of
alienation; (iv) any and all rights, benefits or exemptions under or by virtue
of the homestead exemption laws of the state of Illinois; and (v) the
administration of estates of decedents, or other matter to defeat, reduce or
affect the right of METLIFE under the terms of this Instrument to sell the
Property for the collection of the Indebtedness secured hereby (without any
prior or different resort for collection) or the right of METLIFE, under the
terms of this Instrument, to receive the payment of the Indebtedness out of the
proceeds of sale of the Property in preference to every other person and
claimant whatever (only reasonable expenses of such sale being first deducted).
Borrower expressly waives and relinquishes any right or remedy which it may
have or be able to assert by reason of the provisions of any laws pertaining to
the rights and remedies of sureties. Without limiting the foregoing: (i)
Borrower hereby expressly waives any and all rights of redemption from sale, if
any, under any order or decree of foreclosure of this Instrument, on its own
behalf and on behalf of each and every person, it being the intent herein that
any and all such rights of redemption of Borrower and all other persons are and
shall be deemed to be hereby waived to the full extent permitted by the
provisions of Chapter 110, Para. 12-124, Para. 12-125 and Para. 15-1601 of the
Illinois Statutes or other applicable law or replacement statutes; (ii)
Borrower will not invoke or utilize any such law or laws or otherwise hinder,
delay or impede the execution of any right, power or remedy herein, or
otherwise granted or delegated to METLIFE but will suffer and permit the
execution of every such right, power and remedy as though no such law or laws
had been made or enacted; and (iii) if Borrower is a trustee, Borrower
represents that the provisions of this Section (including the waiver of
redemption rights) are made at the express direction of Borrower's
beneficiaries and the persons having the power of direction over Borrower, and
are made on behalf of the trust estate of Borrower and all beneficiaries of
Borrower, as well as all other persons mentioned above.
h. The proceeds of any sale of, and the rents, profits and other income
generated by the holding, leasing, operating or other use of the Property,
shall be applied by METLIFE (or the receiver, if one is appointed) to the
extent that funds are so available therefrom in the following orders of
priority: (i) first, to the payment of the costs and expenses of taking
possession of the Property and of holding, using, leasing, maintaining,
repairing, improving and selling the same, including, without limitation, (A)
receiver's fees; (B) costs of advertisement; (C) attorneys' and accountants'
fees; and (D) court costs; if any; (ii) second, to the payment of all amounts,
other than the principal amount and accrued but unpaid interest on the Note
which may be due to METLIFE under the Loan Documents, including all
Indebtedness, together with interest thereon as provided therein, in such order
and manner as METLIFE may determine; (iii) third to the payment of all accrued
but unpaid interest due on the Note in such order and manner as METLIFE may
determine; (iv) fourth to the payment of the principal amount outstanding on
the Note in such order and manner as METLIFE may determine and all other
Indebtedness; and (v) fifth, to Borrower. Borrower, any guarantor of the
Indebtedness and any other party liable on the Indebtedness shall be liable for
any deficiency remaining in the Indebtedness subsequent to any sale referenced
in this subsection (h).
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i. METLIFE shall have the right to become the purchaser at any sale of
the Property hereunder and shall have the right to be credited on the amount of
its bid therefor all of the Indebtedness due and owing as of the date of such
sale.
j. If METLIFE shall accelerate the Indebtedness following the
occurrence of an Event of Default, any payments received by METLIFE following
such acceleration, whether as the result of voluntary payments made by Borrower
or as a result of the sale of the Property, shall be deemed voluntary
prepayments of the Note and accordingly, the prepayment fee required under the
Note shall also be payable, subject to the terms of the Note.
k. The purchaser at any foreclosure sale hereunder may disaffirm any
easement granted, or rental, lease or other contract made in violation of any
provisions of this Instrument and may take immediate possession of the
Property free from, and despite the terms of, any such grant of easement,
rental, lease or other contract.
27. RECONVEYANCE. Upon payment of all sums secured by this Instrument,
METLIFE shall release the Property from the lien of this Instrument and shall
surrender this Instrument and all notes evidencing Indebtedness secured by this
Instrument. Borrower shall pay the costs incurred in so releasing the
Property.
28. USE OF PROPERTY. The Property is not currently used for
agricultural, farming, timber or grazing purposes. Borrower warrants that
this Instrument is and will at all times constitute a commercial mortgage, as
defined under appropriate state law.
29. FUTURE ADVANCES. Upon request of Borrower, METLIFE, at METLIFE's
option so long as this Instrument secures Indebtedness held by METLIFE, may make
Future Advances to Borrower. Such Future Advances, with interest thereon,
shall be secured by this Instrument when evidenced by promissory notes stating
that said notes are secured hereby. The aggregate of the Indebtedness secured
hereby shall at no time exceed $100,000,000.00.
30. IMPOSITION OF TAX BY STATE.
9. State Taxes Covered. The following constitute state taxes to
which this Section applies:
(1) A specific tax upon mortgages or upon all or any part
of the indebtedness secured by a mortgage.
(2) A specific tax on a grantor which the taxpayer is
authorized or required to deduct from payments on the indebtedness
secured by a mortgage.
(3) A tax on a mortgage chargeable against the Mortgagee or
the holder of the note secured.
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(4) A specific tax on all or any portion of the
indebtedness or on payments of principal and interest made
by a Mortgagor.
b. Remedies. If any state tax to which this Section applies is
enacted subsequent to the date of this Instrument, this shall have the same
effect as an Event of Default, and METLIFE may exercise any or all of the
remedies available to it unless the following conditions are met:
(1) Borrower may lawfully pay the tax or charge imposed by
state tax, and
(2) Borrower pays the tax or charge within thirty (30) days
after it becomes due and payable.
31. ATTORNEYS' FEES. In the event suit or action is instituted to
enforce or interpret any of the terms of this Instrument (including without
limitation efforts to modify or vacate any automatic stay or injunction),
the prevailing party shall be entitled to recover all expenses reasonably
incurred at, before and after trial and on appeal whether or not taxable as
costs, or in any bankruptcy proceeding including, without limitation,
attorneys' fees, witness fees (expert and otherwise), deposition costs, copying
charges and other expenses. Whether or not any court action is involved, all
reasonable expenses, including but not limited to the costs of searching
records, obtaining title reports, surveyor reports, title insurance, trustee
fees, and other attorney fees, incurred by METLIFE that are necessary at any
time in METLIFE's opinion for the protection of its interest or enforcement of
its rights shall become a part of the Indebtedness payable on demand and shall
bear interest from the date of expenditure until repaid at the interest rate as
provided in the Note. The term "attorneys' fees" as used in the Loan Documents
shall be deemed to mean such fees as are reasonable and are actually incurred.
32. GOVERNING LAW; SEVERABILITY. This Instrument shall be governed by
the law of the State of Illinois applicable to contracts made and to be
performed therein (excluding choice-of-law principles). In the event that any
provision or clause of this Instrument or the Note conflicts with applicable
law, such conflict shall not affect other provisions of this Instrument or the
Note which can be given effect without the conflicting provision, and to this
end the provisions of this Instrument and the Note are declared to be severable.
33. TIME OF ESSENCE. Time is of the essence of this Instrument.
34. CHANGES IN WRITING. This Instrument and any of its terms may only be
changed, waived, discharged or terminated by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought. Any agreement subsequently made by Borrower or METLIFE
relating to this Instrument shall be superior to the rights of the holder of
any intervening lien or encumbrance.
35. NO OFFSET. Borrower's obligation to make payments and perform all
obligations, covenants and warranties under this Instrument and under the Note
shall be absolute
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and unconditional and shall not be affected by any circumstance, including
without limitation any setoff, counterclaim, abatement, suspension, recoupment,
deduction, defense or other right that Borrower or any guarantor may have or
claim against METLIFE or any entity participating in making the loan secured
hereby. The foregoing provisions of this section, however, do not constitute a
waiver of any claim or demand which Borrower or any guarantor may have in
damages or otherwise against METLIFE or any other person, or preclude Borrower
from maintaining a separate action thereon; provided, however, that Borrower
waives any right it may have at law or in equity to consolidate such separate
action with any action or proceeding brought by METLIFE.
36. AUTHORIZATION TO INSERT. Borrower authorizes METLIFE or its agent to
insert in the spaces provided herein the amount of the Note, the mortgagee's
loan policy number, the title company issuing such policy, the total amounts of
the obligations secured, and the last payment due dates, if any of the
foregoing information is not typed in on this document.
37. BUSINESS LOAN. Borrower represents and agrees that the loan
evidenced by the Note and secured hereby is a business loan within the purview
of Section 6404 of Chapter 17 of Illinois Revised Statute (or any substitute,
amended or replacement statutes) and is transacted solely for the purpose of
carrying on and acquiring the business of Borrower.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS
AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE
TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY
BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS
AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, Borrower has executed this Instrument or has caused
the same to be executed by its representatives thereunto duly authorized.
BORROWER:
FRANK'S NURSERY & CRAFTS, INC.,
a Michigan corporation
By: Robert M. Lovejoy
------------------------
Robert M. Lovejoy,
Vice President
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STATE OF Michigan Section
Section
COUNTY OF Wayne Section
This foregoing instrument was acknowledged before me this 31st day of
August, 1995, by Robert M. Lovejoy, Vice President of FRANK'S NURSERY & CRAFTS,
INC., a Michigan corporation, on behalf of said corporation.
______________________________________
Notary Public State of
_______________________________________
Printed Name
My Commission Expires: A. COLETTE MEZZA
Notary Public, Macomb County, MI.
______________________ Acting in Wayne County.
My Commission Expires July 6, 1997.
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File No. 95K0361 Page 2
EXHIBIT A
Parcel One:
Lot One in St. Charles Commercial Center Unit No. One pursuant to Plat of
Subdivision recorded in the Recorder's Office of Kane County, Illinois on
August 17, 1982 as Document No. 1614147, also legally described as follows:
That part of the Southwest Quarter of Section 33, Township 40 North, Range 8
East of Third Principal Meridian described as follows: Commencing at the
Southeast corner of Joe Keim's Randall Road Subdivision, St. Charles Township,
Kane County, Illinois; thence Southeasterly along the Northeasterly line of
Illinois State Route 38, 1440.0 feet; thence Northeasterly at right angles to
the last described course 210.0 feet for a point of beginning; thence
continuing Northeasterly along the prolongation of the last described course
450.0 feet; thence Southeasterly at right angles to the last described course
310.0 feet; thence Southwesterly at right angles to the last described course
450.0 feet; thence Northwesterly at right angles to the last described course
310.0 feet to the point of beginning in the City of St. Charles, Kane County,
Illinois.
Parcel Two:
Easement for ingress and egress as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982, described
as follows: That part of the Southwest Quarter of Section 33, Township 40
North, Range 8 East of the Third Principal Meridian, described as follows:
Commencing at the Southeast corner of Joe Keim's Randall Road Subdivision, St.
Charles Township, Kane County, Illinois; thence Southeasterly along the
Northeasterly line of Illinois State Route No. 38, 1440.0 feet; thence
Northeasterly at right angles to the last described course 210.0 feet for a
point of beginning; thence continuing Northeasterly along the prolongation of
the last described course 18.0 feet; thence Southeasterly at right angles to
the last described course 457.0 feet; thence Southwesterly at right angles to
the last described course 18.0 feet; thence Northwesterly at right angles to
the last described course 457.0 feet to the point of beginning in the City of
St. Charles, Kane County, Illinois.
Parcel Three:
Easement for ingress and egress as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982, described
as follows: That part of the Southwest Quarter of Section 33, Township 40
North, Range 8 East of the Third Principal Meridian described as follows:
Commencing at the Southeast corner of Joe Keim's Randall Road Subdivision, St.
Charles Township, Kane County, Illinois; thence Southeasterly along the
Northeasterly line of Illinois State Route No. 38, 1440.0 feet; thence
Northeasterly at right angles to the last described course 210.0 feet for a
point of beginning; thence Southwesterly along the last described course 18.0
feet; thence Southeasterly at right angles to the last described course 457.0
feet; thence Northeasterly at right angles to the last described course 18.0
feet; thence Northwesterly at right angles to the last described course 457.0
feet to the point of beginning in the City of St. Charles, Kane County,
Illinois.
Parcel Four:
Easement for ingress and egress as contained in Construction and Maintenance
Agreement as Document 1614587, dated July 28, 1982 and recorded August 23,
1982, described as follows: That part of the Southwest Quarter of Section 33,
Township 40 North, Range 8 East of the Third Principal Meridian described as
follows: Commencing at the Southeast corner of Joe Keim's Randall Road
Subdivision, St. Charles Township, Kane County, Illinois; thence Southeasterly
along the Northeasterly line of Illinois State Route No. 38, 1440.0 feet for a
point of beginning; thence Northeasterly at right angles to the last described
course 660.0 feet; thence Northwesterly at right angles to the last described
course 50.0 feet; thence Southwesterly at right angles to the last described
course 660.0 feet to said Northeasterly line; thence Southeasterly along said
Northeasterly line 50.0 feet to the point of beginning in the City of St.
Charles, Kane County, Illinois.
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File No. 95K0361 Page 3
Parcel Five:
Easement for ingress and egress as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982, described
as follows: That part of the Southwest Quarter of Section 33, Township 40
North, Range 8 East of the Third Principal Meridian described as follows:
Commencing at the Southeast corner of Joe Keim's Randall Road Subdivision, St.
Charles Township, Kane County, Illinois; thence Southeasterly along the
Northeasterly line of Illinois State Route 38, 1440.0 feet; thence
Northeasterly at right angles to the last described course 192.0 feet; thence
Southeasterly at right angles to the last described course 196.0 feet for a
point of beginning; thence continuing Southeasterly along the prolongation of
the last described course 28.0 feet; thence Southwesterly at right angles to
the last described course 28.0 feet; thence Southwesterly at right angles to
the last described course to said Northeasterly line; thence Northwesterly
along said Northeasterly line to a line drawn parallel with the last described
course from the point of beginning; thence Northeasterly to the point of
beginning in the City of St. Charles, Kane County, Illinois.
Parcel Six:
Easement for ingress and egress as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982, described
as follows: That part of the Southwest Quarter of Section 33, Township 40
North, Range 8 East of the Third Principal Meridian described as follows:
Commencing at the Southeast corner of Joe Keim's Randall Road Subdivision, St.
Charles Township, Kane County, Illinois; thence Southeasterly along the
Northeasterly line of Illinois State Route No. 38, 1440.0 feet; thence
Northeasterly at right angles to the last described course 192.0 feet; thence
Southeasterly at right angles to the last described course 409.0 feet for a
point of beginning; thence continuing Southeasterly along the prolongation of
the last described course 28.0 feet; thence Southwesterly at right angles to
the last described course 202.80 feet to said Northeasterly line; thence
Northwesterly along said Northeasterly line 28.08 feet to a line drawn parallel
with the last described course from the point of beginning; thence
Northeasterly 200.63 feet to the point of beginning in the City of St.
Charles, Kane County, Illinois.
Parcel Seven:
Easement for ingress and egress truncations, Westerly as contained in
Declaration of Easements as Document 1614585, dated July 27, 1982 and recorded
August 23, 1982, described as follows: That part of the Southwest Quarter of
Section 33, Township 40 North, Range 8 East of the Third Principal Meridian
described as follows: Commencing at the Southeast corner of Joe Keim's Randall
Road Subdivision, St. Charles Township, Kane County, Illinois; thence
Southeasterly along the Northeasterly line of Illinois State Route No. 38,
1440.0 feet; thence Northeasterly at right angles to the last described course
192.0 feet; thence Southeasterly at right angles to the last described course
176.0 feet for a point of beginning; thence continuing Southeasterly along the
prolongation of the last described course 20.0 feet; thence Southwesterly at
right angles to the last described course 20.0 feet; thence Northerly to the
point of beginning and also that part of said Quarter described by commencing
at the most Easterly corner of the aforesaid tract; thence Southeasterly along
the Northeasterly line extended Southeasterly of said tract 48.0 feet for a
point of beginning; thence Northwesterly along the last described course 20.0
feet; thence Southwesterly at right angles to the last described course 20.0
feet; thence Easterly to the point of beginning, all in the City of St.
Charles, Kane County, Illinois.
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File No. 95K0361 Page 4
Parcel Eight:
Easement for ingress and egress truncations, Easterly as contained in
Declaration of Easements as Document 1614585, dated July 27, 1982 and recorded
August 23, 1982, described as follows: That part of the Southwest Quarter of
Section 33, Township 40 North, Range 8 East of the Third Principal Meridian
described as follows: Commencing at the Southeast corner of Joe Keim's Randall
Road Subdivision, St. Charles Township, Kane County, Illinois; thence
Southeasterly along the Northeasterly line of Illinois State Route No. 38,
1440.0 feet; thence Northeasterly at right angles to the last described course
192.0 feet; thence Southeasterly at right angles to the last described course
389.0 feet for a point of beginning; thence continuing Southeasterly along the
prolongation of the last described course 20.0 feet; thence Southwesterly at
right angles to the last described course 20.0 feet; thence Northerly to the
point of beginning and also that part of said Quarter described by commencing
at the most Easterly corner of the aforesaid tract; thence Southeasterly along
the Northeasterly line extended Southeasterly of said tract 48.0 feet for a
point of beginning; thence Northwesterly along the last described course 20.0
feet; thence Southwesterly at right angles to the last described course 20.0
feet; thence Easterly to the point of beginning, all in the City of St.
Charles, Kane County, Illinois.
Parcel Nine:
Easement for sign purposes as contained in Construction and Maintenance
Agreement as Document 1614587, dated July 28, 1982 and recorded August 23,
1982, described as follows: That part of the Southwest Quarter of Section 33,
Township 40 North, Range 8 East of the Third Principal Meridian described as
follows: Commencing at the Southeast corner of Joe Keim's Randall Road
Subdivision, St. Charles Township, Kane County, Illinois; thence Southeasterly
along the Northeasterly line of Illinois State Route No. 38, 1440.0 feet for a
point of beginning; thence Northeasterly at right angles to the last described
course 30.0 feet; thence Southeasterly at right angles to the last described
course 20.0 feet; thence Southwesterly at right angles to the last described
course 30.0 feet to said Northeasterly line; thence Northwesterly along said
Northeasterly line 20.0 feet to the point of beginning in the City of St.
Charles, Kane County, Illinois.
Parcel Ten:
Easement for detention basin purposes as contained in Declaration of Easements
as Document 1614585, dated July 27, 1982 and recorded August 23, 1982,
described as follows: That part of the Southwest Quarter of Section 33,
Township 40 North, Range 8 East of the Third Principal Meridian described as
follows: Commencing at the Southeast corner of Joe Keim's Randall Road
Subdivision, St. Charles Township, Kane County, Illinois; thence Southwesterly
along the Northeasterly line of Illinois State Route No. 38, 1440.0 feet;
thence Northeasterly at right angles to the last described course 210.0 feet;
thence continuing Northeasterly along the prolongation of the last described
course 450.0 feet; thence Southeasterly at right angles to the last described
course 310.0 feet; thence Southwesterly at right angles to the last described
course 265.64 feet for a point of beginning; thence Northeasterly along the
last described course 265.64 feet; thence Northwesterly at right angles to the
last described course 100.0 feet; thence Northeasterly at right angles to the
last described course 124.0 feet; thence Easterly along a line forming an angle
of 126 degrees 50 minutes 43 seconds with the last described course (measured
counter-clockwise therefrom) 209.44 feet to the West line of Fourteenth Street
South; thence Southerly along said West line 511.94 feet; thence Westerly at
right angles to the last described course 155.76 feet; thence Northwesterly
along a line forming an angle of 147 degrees 24 minutes 40 seconds with the
last described course (measured counter-clockwise therefrom) 212.11 feet to
the point of beginning in the City of St. Charles, Kane County, Illinois.
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File No. 95K0361 Page 5
Parcel Eleven:
Easement for storm sewer purposes as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982, described
as follows: That part of the Southwest Quarter of Section 33, Township 40
North, Range 8 East of the Third Principal Meridian described as follows:
Commencing at the Southeast corner of Joe Keim's Randall Road Subdivision, St.
Charles Township, Kane County, Illinois; thence Southeasterly along the
Northeasterly line of Illinois State Route No. 38, 1440.0 feet; thence
Northeasterly at right angles to the last described course 228.0 feet; thence
Southeasterly at right angles to the last described course 320.0 feet for a
point of beginning; thence Northwesterly along the last described course 10.0
feet; thence Northeasterly at right angles to the last described course 166.36
feet; thence Easterly along a line forming an angle of 70 degrees 00 minutes
with the prolongation of the last described course (measured clockwise
therefrom) 10.64 feet to a line drawn parallel with the last described course
from the point of beginning; thence Southwesterly along said parallel line
170.0 feet to the point of beginning in the City of St. Charles, Kane County,
Illinois.
Parcel Twelve:
Easement for utility purposes as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982, described
as follows: That part of the Southwest Quarter of Section 33, Township 40
North, Range 8 East of the Third Principal Meridian described as follows:
Commencing at the Southeast corner of Joe Keim's Randall Road Subdivision, St.
Charles Township, Kane County, Illinois; thence Southeasterly along the
Northeasterly line of Illinois State Route No. 38, 1455.0 feet; thence
Northeasterly at right angles to the last described course 228.0 feet for point
of beginning; thence continuing Northeasterly along the prolongation of the
last described course 10.0 feet; thence Southeasterly at right angles to the
last described course 442.0 feet; thence Southwesterly at right angles to the
last described course 10.0 feet; thence Northwesterly at right angles to the
last described course 443.0 feet to the point of beginning in the City of St.
Charles, Kane County, Illinois.
Parcel Thirteen:
Easement for utility purposes as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982, described
as follows: That part of the Southwest Quarter of Section 33, Township 40
North, Range 8 East of the Third Principal Meridian described as follows:
Commencing at the Southeast corner of Joe Keim's Randall Road Subdivision, St.
Charles Township, Kane County, Illinois; thence Southeasterly along the
Northeasterly line of Illinois State Route No. 38, 1440.0 feet; thence
Northeasterly at right angles to the last described course 182.0 feet for a
point of beginning; thence continuing Northeasterly along the prolongation of
the last described course 10.0 feet; thence Southeasterly at right angles to
the last described course 457.0 feet; thence Southwesterly at right angles to
the last described course 10.0 feet; thence Northwesterly at right angles to
the last described course 457.0 feet to the point of beginning in the City of
St. Charles, Kane County, Illinois.
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Filel No. 95K0361 Page 6
Parcel Fourteen:
Easement for utility purposes as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982, described
as follows: That part of the Southwest Quarter of Section 33, Township 40
North, Range 8 East of the Third Principal Meridian described as follows:
Commencing at the Southeast corner of Joe Keim's Randall Road Subdivision, St.
Charles Township, Kane County, Illinois; thence Southeasterly along the
Northeasterly line of Illinois State Route No. 38, 1440.0 feet; thence
Northeasterly at right angles to the last described course 182.0 feet; thence
Southeasterly at right angles to the last described course 305.0 feet for a
point of beginning; thence continuing Southeasterly along the prolongation of
the last described course 10.0 feet; thence Southwesterly at right angles to
the last described course 185.13 feet to said Northeasterly line; thence
Northwesterly along said Northeasterly line 10.01 feet to a line drawn parallel
with the last described course from the point of beginning; thence
Northeasterly 184.70 feet to the point of beginning in the City of St.
Charles, Kane County, Illinois.
Parcel Fifteen:
Easement for utility purposes as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982, described
as follows: That part of the Southwest Quarter of Section 33, Township 40
North, Range 8 East of the Third Principal Meridian described as follows:
Commencing at the Southeast corner of Joe Keim's Randall Road Subdivision, St.
Charles Township, Kane County, Illinois; thence Southeasterly along the
Northeasterly line of Illinois State Route No. 38, 1440.0 feet for a point of
beginning; thence Northeasterly at right angles to the last described course
660.0 feet; thence Southeasterly at right angles to the last described course
15.0 feet; thence Southwesterly at right angles to the last described course
660.0 feet to said Northeasterly line; thence Northwesterly along said
Northeasterly line 15.0 feet to the point of beginning in the City of St.
Charles, Kane County, Illinois.
Parcel Sixteen:
Easement for utility purposes as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982, described
as follows: That part of the Southwest Quarter of Section 33, Township 40
North, Range 8 East of the Third Principal Meridian described as follows:
Commencing at the Southeast corner of Joe Keim's Randall Road Subdivision, St.
Charles Township, Kane County, Illinois; thence Southeasterly along the
Northeasterly line of Illinois State Route No. 38, 1455.0 feet; thence
Northeasterly at right angles to the last described course 238.0 feet; thence
Southeasterly at right angles to the last described course 442.0 feet for a
point of beginning; thence Southwesterly at right angles to the last described
course 56.0 feet; thence Southeasterly at right angles to the last described
course 91.24 feet; thence Easterly along a line forming an angle of 147 degrees
24 minutes 40 seconds with the last described course (measured clockwise
therefrom) 248.12 feet to the West line of Fourteenth Street South; thence
Northerly along said West line at right angles to the last described course
56.0 feet; thence Westerly at right angles to the last described course 231.75
feet; thence Northwesterly along a line forming angle of 147 degrees 24 minutes
40 seconds with the last described course (measured counter-clockwise
therefrom) 74.87 feet to the point of beginning in the City of St. Charles,
Kane County, Illinois.
32
File No. 95K0361 Page 7
Parcel Seventeen:
Easement for utility purposes as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982, described
as follows: That part of the Southwest Quarter of Section 33, Township 40
North, Range 8 East of the Third Principal Meridian described as follows:
Commencing at the Southwest corner of Joe Keim's Randall Road Subdivision, St.
Charles Township, Kane County, Illinois; thence Southeasterly along the
Northeasterly line of Illinois State Route No. 38, 1440.0 feet; thence
Northeasterly at right angles to the last described course 660.0 feet; thence
Southeasterly at right angles to the last described course 210.0 feet; thence
Northeasterly at right angles to the last described course 124.0 feet; thence
Westerly along a line forming an angle of 126 degrees 50 minutes 43 seconds
with the prolongation of the last described course (measured counter-clockwise
therefrom) 108.43 feet for a point of beginning; thence Easterly along the last
described course and said course extended 317.87 feet to the West line of
Fourteenth Street South; thence Northerly along said West line 20.06 feet;
thence Westerly parallel with penultimate described course 314.80 feet; thence
Westerly along a line forming an angle of 154 degrees 19 minutes 43 seconds
with the last described course (measured counter-clockwise therefrom) 67.49
feet; thence Northwesterly along a line forming an angle of 168 degrees 49
minutes 34 seconds with the last described course (measured counter-clockwise
therefrom) 48.67 feet; thence Southwesterly at right angles to the last
described course 30.0 feet; thence Southeasterly 125.61 feet to the point of
beginning in the City of St. Charles, Kane County, Illinois.
Parcel Eighteen:
Easement for utility purposes as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982, described
as follows: That part of the Southwest Quarter of Section 33, Township 40
North, Range 8 East of the Third Principal Meridian described as follows:
Commencing at the Southeast corner of Joe Keim's Randall Road Subdivision, St.
Charles, Township, Kane County, Illinois; thence Southeasterly along the
Northeasterly line of Illinois State Route No. 38, 1440.0 feet; thence
Northeasterly at right angles to the last described course 660.0 feet; thence
Southeasterly at right angles to the last described course 210.0 feet; thence
Northeasterly at right angles to the last described course 124.0 feet; thence
Westerly along a line forming an angle of 126 degrees 50 minutes 43 seconds
with the prolongation of the last described course (measured counter-clockwise
therefrom) 103.40 feet for a point of beginning; thence continuing Westerly
along the prolongation of the last described course 5.03 feet; thence
Northwesterly along a line forming an angle of 154 degrees 19 minutes 43
seconds with the last described course (measured counter-clockwise therefrom)
16.28 feet; thence Southwesterly along a line forming an angle of 101 degrees
10 minutes 26 seconds with the last described course (measured clockwise
therefrom) 55.82 feet; thence Southeasterly at right angles to the last
described course 20.0 feet; thence Northeasterly at right angles to the last
described course 62.0 feet to the point of beginning in the City of St.
Charles, Kane County, Illinois.
33
EXHIBIT B
SCHEDULE B - PART II
COMMITMENT NUMBER 95K0361
GENERAL EXCEPTIONS:
Note: Any Policy issued in connection with this Commitment for title insurance
will contain the following preprinted General Exceptions:
SPECIAL EXCEPTIONS:
3. General Real Estate Taxes on the land for the years 1994, 1995 and
subsequent years. Permanent Tax Index Number(s): 09-33-329-013
Note: 1994 final installment taxes in the amount of $13,687.94 are due and
payable September 5, 1995, but not yet delinquent.
4. Covenants, conditions, restrictions and easements in the Declaration of
Easements and Agreement for use and maintenance of Storm Damage System
recorded February 13, 1979 as Document 1494073 made by State Bank of St.
Charles, Trustee of Trust T -303, Kent W. Shodeen and Joan G. Shodeen and
St. Charles Savings and Loan Association, relating to easements for storm
waster distribution system, to the common use, care, maintenance,
replacement and reconstruction of said system, to allocation of costs
thereof by future owners of the land, to real estate taxes, insurance and to
other provisions as therein contained. First Addendum to said Declaration
recorded December 17, 1981 as Document 1595256. (For particulars, see
record), and as shown on Survey of Hagensee Surveying Group, Ltd. dated
August 11, 1995, Job No. 583801.
5. Rights of adjoining owners, public utilities Companies, and City of St.
Charles in and to the concurrent use of easements listed as Parcels Two,
Three, Four, Nine and Eleven.
34
SCHEDULE B - PART II
COMMITMENT NUMBER 95K0361
7. Rights of City of St. Charles "Grantee" in Grant of Easement, dated August
11, 1982 and recorded August 17, 1982 as Document 1614146. (Affects
Easement Parcels Two, Three and Five), and as shown on Survey of Hagensee
Surveying Group, Ltd. dated August 11, 1995, Job No. 583801.
8. Restrictions contained in Ordinance No. 1982-2-6, recorded August 17, 1982
as Document 1614145.
9. Terms, Provisions and Conditions of Declaration of Easements recorded
August 17, 1982 and August 23, 1982 as Document Numbers 1614146 and
1614585. (For particulars, see record), and as shown on Survey of Hagensee
Surveying Group, Ltd. dated August 11, 1995, Job No. 583801.
10. Easement for utility purposes as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982,
described as follows: That part of the Southwest Quarter of Section 33,
Township 40 North, Range 8 East of the Third Principal Meridian described
as follows: Commencing at the Southeast corner of Joe Keim's Randall Road
Subdivision, St. Charles Township, Kane County, Illinois; thence
Southeasterly along the Northeasterly line of Illinois State Route No. 38,
1455.0 feet; thence Northeasterly at right angles to the last described
course 228.0 feet for point of beginning; thence continuing Northeasterly
along the prolongation of the last described course 10.0 feet; thence
Southeasterly at right angles to the last described course 442.0 feet;
thence Southwesterly at right angles to the last described course 10.0
feet; thence Northwesterly at right angles to the last described course
443.0 feet to the point of beginning in the City of St. Charles, Kane
County, Illinois, and as shown on Survey of Hagensee surveying Group, Ltd.
dated August 11, 1995, Job No. 583801.
11. Easement for utility purposes as contained in Declaration of Easements as
Document 1614585, dated July 27, 1982 and recorded August 23, 1982,
described as follows: That part of the Southwest Quarter of Section 33,
Township 40 North, Range 8 East of the Third Principal Meridian described
as follows: Commencing at the Southeast corner of Joe Keim's Randall Road
Subdivision, St. Charles Township, Kane County, Illinois; thence
Southeasterly along the Northeasterly line of Illinois State Route No. 38,
1440.0 feet for a point of beginning; thence Northeasterly at right angles
to the last described course 660.0 feet; thence Southeasterly at right
angles to the last described course 15.0 feet; thence Southwesterly at
right angles to the last described course 660.0 feet to said Northeasterly
line; thence Northwesterly along said Northeasterly line 15.0 feet to the
point of beginning in the City of St. Charles, Kane County, Illinois, and
as shown on Survey of Hagensee Surveying Group, Ltd. dated August 11, 1995,
Job No. 583801.
12. Terms, Provisions and Conditions contained in Easement, Construction and
Maintenance Agreement, dated July 28, 1982 and recorded August 23, 1982 as
Document 1614587. (For particulars, see record)
13. Terms, Provisions and Conditions contained in Easement, dated January 30,
1979 and recorded February 13, 1979 as Document 1494081, amended by First
Amendment dated December 30, 1981 and recorded April 30, 1982 as Document
1605393. (For particulars, see record) (Affects Parcel Four).
14. Portion of storm sewer described in Document Number 1595256, located
within Easement Parcel 4, as shown on Plat of Survey by Hagensee Surveying
Group, Ltd, dated March 21, 1994 and revised August 11, 1995 as Job No.
583801.
15. Unrecorded lease in favor of Federal Express for building and drop box
located in the Southwest corner of Parcel 1, as shown on Plat of Survey by
Hagensee Surveying Group, Ltd, dated March 21, 1994 and revised August 11,
1995 as Job No. 583801.