1
Exhibit 10.4
MORTGAGE
THIS INDENTURE ("Mortgage") is entered into this 24th day of May, 1999
by WM LIMITED PARTNERSHIP-1998, a Michigan limited partnership (whether one or
more, collectively, jointly and severally, "Mortgagor"), having its principal
place of business at 40 Pearl Street, N.W., Suite 900, Grand Rapids, Michigan,
to FLEET BUSINESS CREDIT CORPORATION, a Delaware corporation ("FBCC")
("Mortgagee") with an office located at One South Wacker Drive, Chicago,
Illinois 60606. Except as otherwise provided herein, all capitalized terms used
but not defined herein shall have the respective meanings given to them in the
Loan Agreement (as hereinafter defined).
R E C I T A L S
A. Mortgagor is a party to that certain Loan and Security Agreement
dated as of the date hereof by and among FBCC and one or more certain other
parties (said Loan and Security Agreement and any and all renewals, extensions
for any period, increases or rearrangements thereof is referred to as the "Loan
Agreement". All capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Loan Agreement). The terms, conditions,
covenants, representations and warranties of Mortgagor under the Loan Agreement
are hereby incorporated as if fully set forth herein.
B. Borrower has executed and delivered to Mortgagee a note dated of
even date herewith, in the aggregate principal amount of One Million Two Hundred
Sixty-One Thousand Two Hundred Fifty-Eight and 00/100 Dollars ($1,261,258.00)
(said one or more notes and any and all renewals, extensions for any period,
increases or rearrangements thereof are collectively referred to as the "Note"),
which Note shall be finally due and payable no later than December 1, 2014.
C. As a condition to Mortgagee's extension of certain financial
accommodations to Borrower including, without limitation, the extension of
credit evidenced by the Note and pursuant to the Loan Agreement, Mortgagee has
required that Mortgagor enter into this Mortgage and grant to Mortgagee the
liens and security interests referred to herein to secure: (1) the payment of
the principal amount evidenced by the Note together with interest thereon; (2)
payment and performance of the other
2
Obligations; (3) payment of the principal amount, together with interest
thereon, of all present and future advances of money made by Mortgagee under the
Loan Documents, as well as all other liabilities and obligations in favor of
Mortgagee arising under the Loan Documents; and (4) other payment and
performance obligations related to this Mortgage (the aforesaid liabilities and
obligations to Mortgagee being hereinafter referred to collectively as the
"Obligations").
D. The Obligations secured hereby shall not exceed an aggregate
principal amount, at any one time outstanding of two hundred percent (200%) of
the maximum principal amount of the Note, provided, that the foregoing
limitation shall apply only to the lien upon the real property created by this
Mortgage, and it shall not in any manner limit, affect or impair any grant of a
security interest or other right in favor of Mortgagee under the provisions of
the Loan Agreement or under any of the other Loan Documents;
NOW, THEREFORE, in consideration of the premises contained herein and
to secure payment of the Obligations and in consideration of Ten Dollars
($10.00) in hand paid, the receipt and sufficiency of which are hereby
acknowledged, Mortgagor does hereby grant, remise, release, alien, convey,
mortgage and warrant to Mortgagee, its successors and assigns, the following
described real estate (the "Land"), and does further grant a security interest
to Mortgagee in all Personal Property (as defined below) as well as all
Mortgaged Property (as defined below) as may be secured under the Uniform
Commercial Code (the "Code") in effect in the State where the Land is located
(the "State"):
The Land legally described on EXHIBIT A, attached
hereto and made a part hereof
which Land, together with all right, title and interest, if any, which Mortgagor
may now have or hereafter acquire in and to all improvements, buildings and
structures now or hereafter located thereon of every nature whatsoever, is
herein called the "Premises".
TOGETHER WITH all right, title and interest, if any, including any
after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now have or hereafter acquire in and to (a) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining said Land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any way
belong, relate or be appurtenant thereto, and (b) all hereditaments, gas, oil,
minerals (with the right to extract, sever and remove such gas, oil and
minerals), and easements, of every nature whatsoever, located in or on the
Premises and all other rights and privileges thereunto belonging or appertaining
and all extensions, additions, improvements, betterments, renewals,
substitutions and replacements to or of any of the rights and interests
described in subparagraphs (a) and (b) above (hereinafter the "Property
Rights").
2
3
TOGETHER WITH all right, title and interest, if any, including any
after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now or hereafter acquire in and to all fixtures
and appurtenances of every nature whatsoever now or hereafter located in, on or
attached to, and used or intended to be used in connection with, or with the
operation of, the Premises, including, but not limited to (a) all apparatus,
machinery and equipment of Mortgagor and (b) all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of any
of the foregoing (the items described in the foregoing clauses (a) and (b) being
the "Fixtures"); as well as all personal property and equipment of every nature
whatsoever now or hereafter located in or on the Premises, including but not
limited to (c) accounts, contract rights, general intangibles, tax refunds,
chattel paper, instruments, notes, letters of credit, documents, documents of
title; (d) inventory; (e) equipment; (f) all of Mortgagor's now owned or
hereafter acquired monies, and any and all other property and interests in
property of Mortgagor now or hereafter coming into the actual possession,
custody or control of Mortgagee or any agent or affiliate of Mortgagee in any
way or for any purpose (whether for safekeeping, deposit, custody, pledge,
transmission, collection or otherwise); (g) all insurance proceeds of or
relating to any of the foregoing; (h) all of Mortgagor's books and records
relating to any of the foregoing; and (i) all accessions and additions to,
substitutions for, and replacements, products and proceeds of any of the
foregoing clauses (c) through (h) (the items described in the foregoing clauses
(c) through (h) and any other personal property referred to in this paragraph
being the "Personal Property"). It is mutually agreed, intended and declared
that the Premises and all of the Property Rights and Fixtures owned by Mortgagor
(referred to collectively herein as the "Real Property") shall, so far as
permitted by law, be deemed to form a part and parcel of the Land and for the
purpose of this Mortgage to be real estate and covered by this Mortgage. It is
also agreed that if any of the property herein mortgaged is of a nature so that
a security interest therein can be perfected under the Code in effect in the
State, this instrument shall constitute a security agreement, fixture filing and
financing statement, and Mortgagor agrees to execute, deliver and file or refile
any financing statement, continuation statement, or other instruments Mortgagee
may reasonably require from time to time to perfect or renew such security
interest under the Code. To the extent permitted by law, (i) all of the Fixtures
are or are to become fixtures on the Land and (ii) this instrument, upon
recording or registration in the real estate records, of the proper office,
shall constitute a "fixture-filing" within the meaning of Sections 9-313 and
9-402 of the Code. Subject to the terms and conditions of the Loan Agreement,
the remedies for any violation of the covenants, terms and conditions of the
agreements herein contained shall be as prescribed herein or by general law, or,
as to that part of the security in which a security interest may be perfected
under the Code, by the specific statutory consequences now or hereafter enacted
and specified in the Code, all at Mortgagee's sole election.
TOGETHER WITH all the estate, right, title and interest of Mortgagor in
and to (1) all judgments, insurance proceeds, awards of damages and settlements
resulting from condemnation proceedings or the taking of the Real property, or
any part thereof, under the power of eminent domain or for any damage (whether
caused by such taking or otherwise) to the Real Property, or any part thereof,
or to any rights appurtenant thereto,
3
4
and all proceeds of any sales or other dispositions of the Real Property or any
part thereof; and (except as otherwise provided herein or in the Loan Agreement)
Mortgagee is hereby authorized to collect and receive said awards and proceeds
and to give proper receipts and acquittances therefor, and to apply the same as
provided in the Loan Agreement; and (2) all contract rights, general
intangibles, actions and rights in action relating to the Real Property or the
Personal Property including, without limitation, all rights to insurance
proceeds and unearned premiums arising from or relating to damage to the Real
Property or the Personal Property; and (3) all proceeds, products, replacements,
additions, substitutions, renewals and accessions of and to the Real Property
and the Personal Property. (The rights and interests described in this paragraph
shall hereinafter be called the "Intangibles".)
As additional security for the Obligations secured hereby, Mortgagor
(1) does hereby pledge and assign to Mortgagee from and after the date hereof
(including any period of redemption), primarily and on a parity with the Real
Property, and not secondarily, all the rents, issues and profits of the Real
Property and all rents, issues, profits, revenues, royalties, bonuses, rights
and benefits due, payable or accruing (including all deposits of money as
advance rent, for security or as earnest money or as down payment for the
purchase of all or any part of the Real Property) (the "Rents") under any and
all present and future leases, contracts or other agreements relative to the
ownership or occupancy of all or any portion of the Real Property, and (2)
except to the extent such a transfer or assignment is not permitted by the terms
thereof, does hereby transfer and assign to Mortgagee all such leases and
agreements (including all Mortgagor's rights under any contracts for the sale of
any portion of the Mortgaged Property and all revenues and royalties under any
oil, gas and mineral leases relating to the Real Property) (the "Leases").
Mortgagee hereby grants to Mortgagor the right to collect and use the Rents as
they become due and payable under the Leases, but not more than one (1) month in
advance thereof, unless an Event of Default shall have occurred provided that
the existence of such right shall not operate to subordinate this assignment to
any subsequent assignment, in whole or in part, by Mortgagor, and any such
subsequent assignment shall be subject to the rights of Mortgagee under this
Mortgage. Mortgagor further agrees to execute and deliver such assignments of
leases or assignments of land sale contracts as Mortgagee may from time to time
request. In the event of an Event of Default (1) Mortgagor agrees, upon demand,
to deliver to the Mortgagee all of the Leases with such additional assignments
thereof as Mortgagee may request and agrees that the Mortgagee may assume the
management of the Real Property and collect the Rents, applying the same upon
the Obligations in the manner provided in the Loan Agreement, and (2) Mortgagor
hereby authorizes and directs all tenants, purchasers or other persons occupying
or otherwise acquiring any interest in any part of the Real Property to pay the
Rents due under the Leases to Mortgagee upon request of Mortgagee. Mortgagor
hereby appoints Mortgagee as its true and lawful attorney-in-fact to manage said
property and collect the Rents, with full power to bring suit for collection of
the Rents and possession of the Real Property, giving and granting unto
Mortgagee and unto its agent or attorney full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in the protection of the security hereby conveyed; provided, however, that
(a) this power of attorney and assignment of
4
5
rents shall not be construed as an obligation upon Mortgagee to make or cause to
be made any repairs that may be needful or necessary and (b) Mortgagee agrees
that until such Event of Default as aforesaid, Mortgagee shall permit Mortgagor
to perform the aforementioned management responsibilities. Upon Mortgagee's
receipt of the Rents, at Mortgagee's option, it may use the proceeds of the
Rents to pay: (1) reasonable charges for collection thereof, costs of necessary
repairs and other costs requisite and necessary during the continuance of this
power of attorney and assignment of rents, (2) general and special taxes,
insurance premiums, and (3) any or all of the Obligations pursuant to the
provisions of the Loan Agreement. This power of attorney and assignment of rents
shall be irrevocable until this Mortgage shall have been satisfied and released
of record and the releasing of this Mortgage shall act as a revocation of this
power of attorney and assignment of rents. Mortgagee shall have and hereby
expressly reserves the right and privilege (but assumes no obligation) to
demand, collect, sue for, receive and recover the Rents, or any part thereof,
now existing or hereafter made, and apply the same in accordance with the
provisions of the Loan Agreement.
The Mortgagee shall be entitled to all of the rights and benefits
conferred by Act No. 210 of the Michigan Public Acts of 1953 as amended by Act
No. 151 of the Michigan Public Acts of 1966 (MCLA 554.231, et seq.), and Act No.
228 of the Michigan Public Acts of 1925 as amended by Act No. 55 of the Michigan
Public Acts of 1933 (MCLA 554.211 et seq.). The collection of rents by the
Mortgagee shall in no way waive the right of the Mortgagee to foreclose this
Mortgage in the event of any said default.
All of the property described above, and each item of property therein
described, not limited to but including the Land, the Premises, the Property
Rights, the Fixtures, the Personal Property, the Real Property, the Intangibles,
the Rents and the Leases, is herein referred to as the "Mortgaged Property."
Nothing herein contained shall be construed as constituting Mortgagee a
mortgagee-in-possession in the absence of the taking of actual possession of the
Mortgaged Property by Mortgagee. Nothing contained in this Mortgage shall be
construed as imposing on Mortgagee any of the obligations of the lessor under
any Lease of the Mortgaged Property in the absence of an explicit assumption
thereof by Mortgagee. In the exercise of the powers herein granted Mortgagee,
except as provided in the Loan Agreement, no liability shall be asserted or
enforced against Mortgagee, all such liability being expressly waived and
released by Mortgagor.
TO HAVE AND TO HOLD the Mortgaged Property, properties, rights and
privileges hereby conveyed or assigned, or intended so to be, unto Mortgagee,
its beneficiaries, successors and assigns, forever for the uses and purposes
herein set forth. Mortgagor hereby releases and waives all rights under and by
virtue of the homestead exemption laws, if any, of the State and Mortgagor
hereby covenants, represents and warrants that, at the time of the sealing and
delivery of these presents, Mortgagor is well seized of the Mortgaged Property
in fee simple and with lawful authority to sell, assign, convey and mortgage the
Mortgaged Property, and that the title to the Mortgaged
5
6
Property is free and clear of all encumbrances, except as described on EXHIBIT B
hereto, and that, except for the encumbrances set forth on EXHIBIT B, Mortgagor
will forever defend the same against all lawful claims.
The following provisions shall also constitute an integral part of this
Mortgage:
1. PAYMENT OF TAXES ON THE MORTGAGE. Without limiting any of the
provisions of the Loan Agreement, Mortgagor agrees that, if the United States or
any department, agency or bureau thereof or if the State or any of its
subdivisions having jurisdiction shall at any time require documentary stamps to
be affixed to this Mortgage or shall levy, assess, or charge any tax, assessment
or imposition upon this Mortgage or the credit or indebtedness secured hereby or
the interest of Mortgagee in the Premises or upon Mortgagee by reason of or as
holder of any of the foregoing then, Mortgagor shall pay for such documentary
stamps in the required amount and deliver them to Mortgagee or pay (or reimburse
Mortgagee for) such taxes, assessments or impositions. Mortgagor agrees to
exhibit to Mortgagee, at any time upon request, official receipts showing
payment of all taxes, assessments and charges which Mortgagor is required or
elects to pay under this paragraph. Mortgagor agrees to indemnify Mortgagee
against liability on account of such documentary stamps, taxes, assessments or
impositions, whether such liability arises before or after payment of the
Obligations and regardless of whether this Mortgage shall have been released.
2. LEASES AFFECTING THE REAL PROPERTY. Mortgagor agrees faithfully to
perform all of its obligations under all present and future Leases at any time
assigned to Mortgagee as additional security, and to refrain from any action or
inaction which would result in termination of all such Leases or in the
diminution of the value thereof or of the Rents due thereunder. All future
lessees under any Lease made after the date of recording of this Mortgage shall,
at Mortgagee's option and without any further documentation, attorn to Mortgagee
as lessor if for any reason Mortgagee becomes lessor thereunder, and, upon
demand, pay rent to Mortgagee, and Mortgagee shall not be responsible under such
Lease for matters arising prior to Mortgagee becoming lessor thereunder.
3. NO EASEMENTS; STREETS AND UTILITIES. Mortgagor agrees that it shall
not permit the public to use the Real Property in any manner that might tend, in
Mortgagee's reasonable judgment, to impair Mortgagor's title to such property or
any portion thereof, or to make possible any claim or claims of easement by
prescription or of implied dedication to public use. Mortgagor hereby represents
and warrants that the Mortgaged Property is benefitted by such easements or
other rights as may be necessary for vehicular and pedestrian ingress and
egress, the installation and maintenance of utilities, parking and other site
improvements, for the Mortgaged Property and the operation of Mortgagor's
business.
4. INDEMNIFICATION. Mortgagor shall not use or permit the use of any
part of the Real Property for an illegal purpose, including, without limitation,
the violation of any environmental laws, statutes, codes, regulations or
practices. Without limiting any
6
7
indemnification Mortgagor has granted in the Loan Agreement, Mortgagor agrees to
indemnify and hold harmless Mortgagee from and against any and all losses,
suits, liabilities, fines, damages, judgments, penalties, claims, charges, costs
and expenses (including reasonable attorneys' and paralegals' fees, court costs
and disbursements) which may be imposed on, incurred or paid by or asserted
against the Real Property by reason or on account of or in connection with (a)
the construction, reconstruction or alteration of the Real Property, (b) any
negligence or misconduct of Mortgagor, any lessee of the Real Property, or any
of their respective agents, contractors, subcontractors, servants, employees,
licensees or invitees, (c) any accident, injury, death or damage to any person
or property occurring in, on or about the Real Property or any street, drive,
sidewalk, curb or passageway adjacent thereto, or (d) any other transaction
arising out of or in any way connected with the Mortgaged Property.
5. INSURANCE. Mortgagor shall, at its sole expense, obtain for, deliver
to, assign and maintain for the benefit of Mortgagee, until the Obligations are
paid in full, insurance policies as specified in the Loan Agreement. In the
event of a casualty loss, the net insurance proceeds from such insurance
policies shall be paid and applied as specified in the Loan Agreement.
6. CONDEMNATION AWARDS. Mortgagor hereby assigns to Mortgagee, as
additional security, all awards of damage resulting from condemnation
proceedings or the taking of or injury to the Real Property for public use, and
Mortgagor agrees that the proceeds of all such awards shall be paid to Mortgagee
and applied as specified in the Loan Agreement.
7. REMEDIES. Subject to the provisions of the Loan Agreement, upon the
occurrence of an Event of Default under the terms of the Loan Agreement, in
addition to any rights and remedies provided for in the Loan Agreement, and to
the extent permitted by applicable law, the following provisions shall apply:
(a) MORTGAGEE'S POWER OF ENFORCEMENT. It shall be lawful for
Mortgagee to immediately foreclose this Mortgage by judicial action.
The court in which any proceeding is pending for the purpose of
foreclosure of this Mortgage may, at once or at any time thereafter,
either before or after sale, without notice and without requiring bond,
and without regard to the solvency or insolvency of any person liable
for payment of the Obligations secured hereby, and without regard to
the then value of the Mortgaged Property or the occupancy thereof as a
homestead, appoint a receiver (the provisions for the appointment of a
receiver and assignment of rents being an express condition upon which
the Loan hereby secured is made) for the benefit of Mortgagee, with
power to collect the Rents, due and to become due, during such
foreclosure suit and the full statutory period of redemption
notwithstanding any redemption. The receiver, out of the Rents when
collected, may pay costs incurred in the management and operation of
the Real Property, prior and subordinate liens, if any, and taxes,
assessments, water and other utilities and insurance, then due or
thereafter accruing, and may make and pay for any necessary repairs to
the Real Property, and may pay all or
7
8
any part of the Obligations or other sums secured hereby or any
deficiency decree entered in such foreclosure proceedings. Upon or at
any time after the filing of a suit to foreclose this Mortgage, the
court in which such suit is filed shall have full power to enter an
order placing Mortgagee in possession of the Real Property with the
same power granted to a receiver pursuant to this subparagraph and with
all other rights and privileges of a mortgagee-in-possession under
applicable law.
In addition to the other rights and remedies
available to Mortgagee, Mortgagee is hereby authorized and empowered to
sell or cause the Premises to be sold and to cause the same to be
conveyed to the purchaser thereof pursuant to the provisions of Act
236, Public Acts of Michigan, 1961 (MCL 600.3201 et seq.), pertaining
to "Foreclosure of Mortgage by Advertisement." This Act does not
required that Mortgagor be personally notified of the foreclosure sale
or that a judicial hearing be held before the foreclosure sale is held.
Mortgagor further agrees that Mortgagee is authorized and empowered to
retain out of any proceeds of the sale any money that is due to
Mortgagee under the terms of this Mortgage or under the Note or under
any of the Loan Documents, together with the costs and charges of sale
and the attorneys' fees incurred in connection with the sale. Any
surplus shall be paid to Mortgagor. In the event of public foreclosure
sale, the Premises may at the option of Mortgagee be sold in one or
more parcels. Mortgagee may purchase the Premises at any foreclosure
sale.
(b) MORTGAGEE'S RIGHT TO ENTER AND TAKE POSSESSION, OPERATE AND
APPLY INCOME. Mortgagee shall, at its option, have the right, acting
through its agents or attorneys, either with or without process of law,
forcibly or otherwise, to enter upon and take possession of the Real
Property, expel and remove any persons, goods, or chattels occupying or
upon the same, to collect or receive all the Rents, and to manage and
control the same, and to lease the same or any part thereof, from time
to time, and, after deducting all reasonable attorneys' fees and
expenses, and all reasonable expenses incurred in the protection, care,
maintenance, management and operation of the Real Property, distribute
and apply the remaining net income in accordance with the terms of the
Loan Agreement or upon any deficiency decree entered in any foreclosure
proceedings.
8. APPLICATION OF PROCEEDS FROM FORECLOSURE OR SALE. The proceeds of
any sale (whether through a foreclosure proceeding or Mortgagee's exercise of
the power of sale) shall be distributed and applied in accordance with the terms
of the Loan Agreement.
9. CUMULATIVE REMEDIES; DELAY OR OMISSION NOT A WAIVER. Each remedy or
right of Mortgagee shall not be exclusive of but shall be in addition to every
other remedy or right now or hereafter existing at law or in equity. No delay in
the exercise or omission to exercise any remedy or right accruing on the
occurrence or existence of any Event of Default shall impair any such remedy or
right or be construed to be a waiver of any such Event of Default or
acquiescence therein, nor shall it affect any subsequent Event of Default of the
same or different nature. Every such remedy or right may be exercised
concurrently or independently and when and as often as may be deemed expedient
by Mortgagee.
8
9
10. MORTGAGEE'S REMEDIES AGAINST MULTIPLE PARCELS. If more than one
property, lot or parcel is covered by this Mortgage, and if this Mortgage is
foreclosed upon, or judgment is entered upon any Obligations secured hereby, or
if Mortgagee exercises its power of sale, execution may be made upon or
Mortgagee may exercise its power of sale against any one or more of the
properties, lots or parcels and not upon the others, or upon all of such
properties or parcels, either together or separately, and at different times or
at the same time, and execution sales or sales by advertisement may likewise be
conducted separately or concurrently, in each case at Mortgagee's election.
11. NO MERGER. In the event of a foreclosure of this Mortgage or any
other mortgage or deed of trust securing the Obligations, the Obligations then
due Mortgagee shall not be merged into any decree of foreclosure entered by the
court, and Mortgagee may concurrently or subsequently seek to foreclose one or
more mortgages or deeds of trust which also secure said Obligations.
12. NOTICES. Except as otherwise provided herein, any notices, demands,
consents, requests, approvals, undertakings or other instruments required or
permitted to be given in connection with this Mortgage (and all copies of such
notices or other instruments) shall be given in accordance with the terms of the
Loan Agreement.
13. EXTENSION OF PAYMENTS. Mortgagor agrees that, without affecting the
liability of any person for payment of the Obligations secured hereby or
affecting the lien of this Mortgage upon the Mortgaged Property or any part
thereof (other than persons or property explicitly released as a result of the
exercise by Mortgagee of its rights and privileges hereunder), Mortgagee may at
any time and from time to time, on request of Mortgagor, without notice to any
person liable for payment of any Obligations secured hereby, but otherwise
subject to the provisions of the Loan Agreement, extend the time, or agree to
alter or amend the terms of payment of such Obligations. Mortgagor further
agrees that any part of the security herein described may be released with or
without consideration without affecting the remainder of the Obligations or the
remainder of the security.
14. GOVERNING LAW. Mortgagor agrees that this Mortgage is to be
construed, governed and enforced in accordance with the laws of the State.
Wherever possible, each provision of this Mortgage shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Mortgage shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Mortgage.
15. SATISFACTION OF MORTGAGE. Upon full payment of all the Obligations,
at the time and in the manner provided in the Loan Agreement, or upon
satisfaction of the conditions set forth in the Loan Agreement for release of
the Mortgaged Property from
9
10
this Mortgage, this conveyance or lien shall be null and void and, upon demand
therefor following such payment or satisfaction of the conditions set forth in
the Loan Agreement for release of the Mortgaged Property, as the case may be, a
satisfaction of mortgage or reconveyance of the Mortgaged Property shall
promptly be provided by Mortgagee to Mortgagor.
16. SUCCESSORS AND ASSIGNS INCLUDED IN PARTIES. This Mortgage shall be
binding upon Mortgagor and upon the successors, assigns and vendees of Mortgagor
and shall inure to the benefit of Mortgagee's successors and assigns; all
references herein to Mortgagor and to Mortgagee shall be deemed to include their
respective successors and assigns. Mortgagor's successors and assigns shall
include, without limitation, a receiver, trustee or debtor in possession of or
for Mortgagor. Wherever used, the singular number shall include the plural, the
plural shall include the singular, and the use of any gender shall be applicable
to all genders.
17. WAIVER OF APPRAISEMENT, VALUATION, STAY, EXTENSION AND REDEMPTION
LAWS. Mortgagor agrees, to the full extent permitted by law, that at all times
following an Event of Default, neither Mortgagor nor anyone claiming through or
under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, or extension laws now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of this Mortgage or
the absolute sale of the Mortgaged Property or the final and absolute putting
into possession thereof, immediately after such sale, of the purchaser thereat;
and Mortgagor, for itself and all who may at any time claim through or under it,
hereby waives, to the full extent that it may lawfully so do, the benefit of all
such laws and any and all right to have the assets comprising the Mortgaged
Property marshalled upon any foreclosure of the lien hereof and agrees that
Mortgagee or any court having jurisdiction to foreclose such lien may sell the
Mortgaged Property in part or as an entirety. To the full extent permitted by
law, Mortgagor hereby waives any and all statutory or other rights of redemption
from sale under any order or decree of foreclosure of this Mortgage, on its own
behalf and on behalf of each and every person acquiring any interest in or title
to the Mortgaged Property subsequent to the date hereof.
18. INTERPRETATION WITH OTHER DOCUMENTS. Notwithstanding anything in
this Mortgage to the contrary, in the event of a conflict or inconsistency
between this Mortgage and the Loan Agreement, the provisions of the Loan
Agreement shall govern.
19. FUTURE ADVANCES. This Mortgage is given for the purpose of securing
extensions of credit which Mortgagee may make to or for Mortgagor pursuant and
subject to the terms and provisions of the Loan Agreement. The parties hereto
intend that, in addition to any other debt or obligation secured hereby, this
Mortgage shall secure unpaid balances of loan advances made after this Mortgage
is delivered to the proper authorities for filing or recordation, whether made
pursuant to an obligation of Mortgagee or otherwise, provided that such advances
are within twenty (20) years from the date hereof and in such event, such
advances shall be secured to the same extent as if such future advances were
made on the date hereof, although there may be no advance made at the time of
execution hereof and although there may be no indebtedness outstanding at the
time any advance is made. Such loan advances may or may not be evidenced by
notes executed pursuant to the Loan Agreement.
10
11
20. INVALID PROVISIONS TO AFFECT NO OTHERS. In the event that any of
the covenants, agreements, terms or provisions contained in this Mortgage shall
be invalid, illegal or unenforceable in any respect, the validity of the
remaining covenants, agreements, terms or provisions contained herein or in the
Loan Agreement shall not be in any way affected, prejudiced or disturbed
thereby. In the event that the application of any of the covenants, agreements,
terms or provisions of this Mortgage is held to be invalid, illegal or
unenforceable, those covenants, agreements, terms and provisions shall not be in
any way affected, prejudiced or disturbed when otherwise applied.
21. CHANGES. Neither this Mortgage nor any term hereof may be changed,
waived, discharged or terminated orally, or by any action or inaction, but only
by an instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought. To the extent permitted by
law, any agreement hereafter made by Mortgagor and Mortgagee relating to this
Mortgage shall be superior to the rights of the holder of any intervening lien
or encumbrance.
22. TIME OF ESSENCE. Time is of the essence with respect to the
provisions of this Mortgage.
23. INTENTIONALLY OMITTED.
24. STATE SPECIFIC MATTERS. EXHIBIT C is hereby incorporated herein. To
the extent of any conflict between the terms hereof and the terms of EXHIBIT C,
the terms of EXHIBIT C shall control.
25. WAIVER OF TRIAL BY JURY. MORTGAGOR HEREBY WAIVES MORTGAGOR'S RIGHT
TO TRIAL BY JURY IN ANY LITIGATION RELATING TO OR IN ANY WAY CONNECTED WITH THIS
MORTGAGE OR THE TRANSACTION CONTEMPLATED HEREBY.
11
12
IN WITNESS WHEREOF, this instrument is executed as of the day and year
first above written by the person or persons identified below on behalf of
Mortgagor (and said person or persons hereby represent that they possess full
power and authority to execute this instrument).
MORTGAGOR:
WITNESSES: WM LIMITED PARTNERSHIP-1998, a
Michigan limited partnership
Corporation
- ---------------------------------- By: S & Q Management, LLC, its
General Partner
(Print Name)
By:
- ---------------------------------- ---------------------------
(Print Name) Name:
Title:
This document was prepared by and
after recording should be returned to:
Cathy A. Jane
Fleet Business Credit Corporation
One South Wacker Drive
Chicago, Illinois 60606
12
13
STATE OF MICHIGAN )
) SS.
COUNTY OF KENT )
The undersigned, a Notary Public in and for said County, in said State,
hereby certifies that Robert E. Schermer, Jr., a Member of S & Q Management,
LLC, a Michigan limited liability company, the General Partner of WM Limited
Partnership-1998, a Michigan limited partnership, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of the instrument, as such Member and with full
authority, he executed the same voluntarily for and as the act of said
partnership, with full release and waiver of any and all rights of redemption.
Given under my hand and official seal this 14th day of May, 1999
[SEAL]
----------------------------------------------
Notary Public
My Commission Expires:
Notary Public in and for the State of Michigan
13
14
EXHIBIT A
---------
LEGAL DESCRIPTION OF THE LAND
-----------------------------
Located in the Southeast 1/4 of the Northeast 1/4 of Section 15, Town 7 North,
Range 11 West, City of Grand Rapids, Kent County, Michigan and being a tract of
land more particularly described as follows:
Commencing at the Northeast corner of said Section; thence along the East line
of said Section South 01 degrees 41 minutes 38 seconds West for 1,317.97 feet to
the North line of said Southeast 1/4 of the Northeast 1/4; thence along said
North line, North 88 degrees 53 minutes 40 seconds West, for 68.00 feet to the
West right-of-way line of East Beltline Avenue; thence continuing along said
North line, North 88 degrees 53 minutes, 40 seconds West for 292.92 feet to the
point of beginning of the tract of land described herein; thence South 27
degrees 32 minutes 58 seconds East, for 14.73 feet; thence South 01 degrees 47
minutes 36 seconds West, for 129.38 feet; thence on a curve to the right for an
arc length of 78.81 feet, said curve having a radius of 369.50 feet, a central
angle of 12 degrees, 13 minutes 13 seconds and a long chord bearing South 07
degrees 56 minutes 32 seconds West, for 78.66 feet; thence North 88 degrees 12
minutes 29 seconds West, for 147.21 feet; thence North 01 degrees 47 minutes 36
seconds East, for 218.65 feet; thence South 88 degrees 53 minutes 40 seconds
East, for 148.43 feet to the point of beginning.
COMMONLY KNOWN AS:
1753 East Beltline Avenue, NE, Grand Rapids, Michigan
PIN:
14
15
EXHIBIT B
---------
PERMITTED EXCEPTIONS TO TITLE
-----------------------------
1. Real estate taxes not currently due and payable.
2. Covenants, conditions and restrictions of record which do not interfere
with, and which are not violated by, the current and intended uses of the
Premises.
3. Public utility easements which do not underlie any of the existing or
planned improvements located on the Premises.
15
16
EXHIBIT C
---------
STATE SPECIFIC MATTERS
----------------------
NO WASTE. Mortgagor will not commit, suffer, or permit any waste of the
Premises or any violation of any law, regulation or ordinance affecting the
Premises and will not commit, suffer, or permit any demolition, removal or
material alteration of any of the buildings or improvements (including fixtures)
on the Land and will not violate, suffer, or permit the violation of any of the
Permitted Encumbrances, if any. If Borrower fails to pay any taxes or
assessments assessed against the Premises or to pay any premiums payable with
respect to any insurance policy covering the Premises (or to pay to Mortgagee
the amounts owing under Section 6.6 of the Loan Agreement), that failure shall
constitute waste under Act No. 236 of the Michigan Public Acts of 1961, as
amended (MCL Section 600.2927). If Mortgagee elects to seek a receiver under the
foregoing Act, Mortgagor consents to the appointment of that receiver.
16