HomeMy WebLinkAboutResolutions - 2004.07.22 - 27535July 22, 2004
MISCELLANEOUS RESOLUTION #04166
BY: Planning and Building Committee, Charles E. Palmer, Chairperson
IN RE: DEPARTMENT OF WASTE MANAGEMENT - RESOLUTION AMENDING MISCELLANEOUS
RESOLUTION #03337 AND THE PREVIOUSLY ADOPTED PROVISIONS OF A BROWNFIELD
CLEANUP REVOLVING LOAN FOR THE FORMER SANICEM LANDFILL
To the Oakland County Board of Commissioners
Chairperson, Ladies and Gentlemen:
WHEREAS the Oakland Brownfield Initiative (OBI) was established in 2000 upon designation by the US
EPA of Oakland County as a Brownfield Demonstration Pilot Community, and was further assisted by a
US EPA Brownfield Revolving Loan Fund Cleanup Grant (BCRLF) in September of 2002, to facilitate the
redevelopment of contaminated and underutilized properties to provide new taxes, jobs, and protect the
health and environment of Oakland County and its residents; and,
WHEREAS the former Sanicem landfill site in Orion Township has been a long-standing environmental
hazard, a "facility" under state statute, and a tax-reverted, non-producing parcel for many years; and,
WHEREAS Brownfield clean up and redevelopment plans have been prepared to restore the
environmental and economic viability of this parcel within Orion Township and the City of Auburn Hills,
and.
WHEREAS the Brown Road Group, LLC has assumed environmentally related development costs
estimated at over $10 million and actively begun environmental response, removal and brownfield
redevelopment of the former Sanicem site pursuant to agreements and under law and regulation of the
US EPA and the Michigan DEQ; and,
WHEREAS OBI, in consultation with US EPA and Corporation Counsel, and the Brown Road Group, LLC
have developed a Brownfield Clean Up Loan agreement (attached) which satisfies BCRLF grant
requirements, CERCLA/NCP clean up standards, and oversight and repayment terms and conditions of
the parties, to facilitate the partial funding of methane and leachate control systems during the
construction phase of redevelopment; and,
WHEREAS it is necessary to amend Resolution No, 03337 in order to provide changes to the language
listed in the Loan agreement. These changes are listed here:
1. Page 6, Section 2.01 - add all documents that BRG has provided to Oakland since the date of
execution of the original loan. These documents to include the following:
Interim Remedial Action Plan, 2004
Methane Management Plan - Atlas Copco Building, 2004
2. Page 8, Section 3.01, E - at the end of the sentence add "the sign will include appropriate
contacts for obtaining information on activities being conducted at the site and for reporting
suspected criminal activities. The sign shall comply with the requirements in 40 C.F.R. Part 35,
Subpart 0."
3. Page 9, Section 4.04 - at the end of the paragraph, add a sentence that says "The Borrower shall
also furnish both the annual reports and the monthly status reports to the U.S. EPA."
4. Page 12, Section 4.16 - insert "and U.S. EPA" into the first sentence, second line, after "Lender".
In the same section, add "and U.S. EPA" in the second sentence, after "Lender" in the fourth line.
5. Page 12, Section 4.17 - insert "and U.S. EPA" into the second sentence, in the third line, after
"Lender".
6. Page 12, Section 5.01 - add the following: "H. The Borrower missing a deadline contained in the
work plan by more than 7 business days"
7. Page 15, Section 8.03 - add the following:
To U.S. EPA
Brooke Furio
Project Manager
U.S. EPA, Region 5
25089 Center Ridge Road
Westlake, OH 44145-4114
And
Jeff Kimble
On-Scene Coordinator
U.S. EPA. Region 5
9311 Groh Road
Gross Ile, MI 48138-1697
WHEREAS the provision of such funding will greatly advance the overall mission of OBI, the specific
requirements of the BCRLF grant, and contribute to the timely success of this important clean up and
redevelopment project;
NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners does hereby
approve the making of a Brownfield Clean Up Loan to the Brown Road Group, LLC, and authorize the
Chairman of the Board to execute the attached agreement, promissory note, and other documents as
required to complete the loan.
Chairperson, on behalf of the Planning & Building Committee, I move the adoption of the foregoing
resolution.
PLANNING & BUILDING COMMITTEE
Planning & Building Committee Vote:
Motion carried on unanimous roll call vote with Coleman absent
BROWNFIELDS CLEANUP REVOLVING LOAN FUND
LOAN AGREEMENT
BETWEEN
BROWN ROAD GROUP, LLC
AND
OAKLAND COUNTY
TABLE OF CONTENTS
RECITALS 1
ARTICLE I LOAN 2
ARTICLE II REPRESENTATIONS AND WARRANTIES 4
ARTICLE III CONDITIONS PRECEDENT 5
ARTICLE IV AFFIRMATIVE COVENANTS 6
ARTICLE V EVENTS OF DEFAULT 9
ARTICLE VI REMEDIES OF LENDER 10
ARTICLE VII INDEMNIFICATION 11
ARTICLE VIII MISCELLANEOUS 11
EXECUTION 14
EXHIBIT A
LEGAL DESCRIPTIONS
EXHIBIT B
ACTION MEMO
EXHIBIT C
PROMISSORY NOTE
EXHIBIT D
LOAN GUARANTY
Exhibit E
MORTGAGE
EXHIBIT F
WORK PLAN
THIS LOAN AGREEMENT (this "Agreement") is entered into as of the day
of February, 2004, by and between the BROWN ROAD GROUP, LLC ("BORROWER"),
a Michigan limited liability company with its principal office at 115 South Main Street,
Suite 300, Royal Oak, Michigan, and OAKLAND COUNTY, a Michigan county,
organized and existing pursuant to Act 139, Public Acts of Michigan, 1974, whose
principal address is 1200 N. Telegraph Road, Pontiac, Michigan 48341 ("LENDER ").
RECITALS
Borrower is a Michigan limited liability company and the fee owner of 143 acres
of certain real property located in the City of Auburn Hills and Township of Orion in
Oakland County, Michigan (the "Property"). The Property is legally described in Exhibit
A attached.
The Borrower, has and continues to engage in removal actions on the real
property owned by the Borrower, which is generally described in Exhibit B (the "Action
Memo").
In order to induce Lender to make a loan, Borrower has executed concurrently
herewith a promissory note in the form of Exhibit C attached hereto (the "Promissory
Note") a mortgage securing payment of the note in the form of Exhibit E ("Mortgage"),
and an obligation to repay the Loan Funds by execution of a Loan Guaranty
("Guaranty"), attached hereto and made a part hereof as Exhibit D. The Promissory
Note, the Mortgage and the Guaranty are collectively referred to herein as the "Loan
Documents."
Lender is a recipient of the United States Environmental Protection Agency
Brownfields Cleanup Revolving Loan Funds (the "Funds") and is authorized to make
certain loans therefrom.
The Property has been identified by the Oakland County Brownfield
Redevelopment Authority ("OCBRA") as a Brownfield Site in need of environmental
removal actions. The OCBRA included the Property in a brownfield plan adopted
pursuant to the Brownfield Redevelopment Financing Act, Michigan Public Act 381 of
1996, as amended.
Borrower will comply with the requirement of Public Act 451 Part 201 of the
Michigan Public Acts of 1994 as amended.
Borrower wishes to borrow from Lender, and Lender is willing to lend to Borrower
the amount set forth in the Promissory Note on the terms and conditions contained
herein.
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NOW THEREFORE, Lender and Borrower, intending to be legally bound, agree
as follows:
ARTICLE I LOAN
1.01 Loan. Lender agrees to make a loan in the amount of Seven Hundred
Thousand ($700,000) Dollars (the "Loan"), contingent on satisfaction of the conditions
precedent herein. Prior to disbursement of the Loan, and subsequent to the execution
of the Action Memo, Borrower shall provide Lender with evidence of Borrower's
obligation to repay the Loan Funds by execution of a Promissory Note, a Mortgage and
a Loan Guaranty, which are attached hereto and made a part hereof. The Promissory
Note, Mortgage and the Loan Guaranty shall contain specific terms for the repayment of
the Loan Funds by the fifth anniversary of the date of execution of the Promissory Note.
1.02 Promissory Note. The obligation of the Borrower to repay the Loan shall
be evidenced by the Promissory Note, all terms of which are incorporated herein by
reference. The Promissory Note shall mature on the fifth anniversary of the date of
execution of the Promissory Note. Upon maturing, any remaining balance owed Lender
shall be due and payable. Principal, interest, and late payments, if any, on the Loan are
payable in accordance with the terms of the Loan Documents.
1.03 Prepayment Prior to Maturity. Borrower may, without premium, prepay
any portion of the principal on the Loan prior to maturity.
1.04 Purpose. Borrower shall only use the proceeds of the Loan for activities in
the approved removal actions at the Property (the "Work") as set forth in the Work Plan,
as the same may be amended, supplemented or replaced from time to time as
approved by the Lender, and as determined by the Lender. The Work consists primarily
of a leachate and methane gas collection system on the Property as described in the
Work Plan attached as Exhibit F. No Work shall be commenced for which the proceeds
of this Loan will be utilized unless and until the Action Memo attached hereto as Exhibit
B has been reviewed and approved by Lender, and executed by all parties to this
Agreement. Nothing in this Agreement shall be construed to require or compel Lender
to approve the Action Memo. No interest shall accrue on this Loan unless and until
Lender approves the aforementioned Action Memo and the funds are dispersed.
1.05 Contractor Qualifications and Insurance. Borrower affirms that its
principal environmental consultant Fishbeck, Thompson, Carr & Huber (the
"Contractor") has examined the Property, is fully familiar with local conditions, and is
able to execute the Work. The Contractor shall carry out the Work consistent with the
level of care and skill exercised by similar contractors performing comparable services
under comparable circumstances. The Contractor shall possess the appropriate license
from the Contractor's state licensing board. The Contractor shall maintain and keep in
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full force and effect the following insurance: errors and omissions, contractor's pollution
and general liability insurance with a minimum of $1,000,000 coverage per accident or
claim, property insurance, and workman's compensation insurance.
1.06 Transaction Fees. Lender may, at its option, charge transaction fees in
an amount not to exceed One Thousand ($1,000) Dollars for document preparation and
recording and all other services related to this Loan Agreement.
1.07 Loan Collection Services. After 24 months, Lender may, at its option,
charge a fee for loan collection services in an amount not to exceed Two Hundred
($200) Dollars per payment.
1.08 Default. Upon default arising from provisions of Article V, Borrower
promises to pay to Lender all collection and attorney's fees and expenses actually
incurred by Lender, whether or not litigation is commenced, including, without limitation,
penalties and/or fees due under this Agreement.
1.09 Security. As security for Borrower's indebtedness to Lender, Borrower
shall give Lender a second Mortgage on the Property and a Loan Guaranty. Borrower
acknowledges that a Cooperative Agreement with the U.S. Environmental Protection
Agency is the source of all funds loaned hereunder and that the Lender is under no
obligation to loan and will not be required to loan any of its own funds.
1.10 Inspection and Right to Stop Work. Lender shall have the right, but not
the obligation, to enter the Property and inspect the Work during its course and within
thirty (30) days following completion of the Work. Borrower shall provide notice to
Lender at least ten (10) business days prior to completion of the Work. Lender shall
select a Site Manager. The Site Manager will review and inspect the Work in
coordination with the Borrower's Project Coordinator. Lender may stop the Work if it is
not satisfactory or not substantially in accordance with the plans and order work
replacement at Borrower's expense. Lender shall have the right, but not the obligation,
to take any reasonable and appropriate action under the circumstances to cure any
violation of the provisions of this Agreement upon written notice of at least thirty (30)
days to Borrower and an opportunity to cure. The notice shall include a clear
description of the proposed cure and the approximate cost of the same. Borrower
recognizes that the Site Manager has the ability to stop Work immediately in the event
of an imminent and substantial threat to human health or the environment. Lender's
actions under this subsection shall not be deemed to create any ownership or operator
status as that term is defined under the environmental laws set forth in Section 4.07 of
this Agreement; and, furthermore, Lender shall be deemed to be a "response activity
contractor" under Part 201 of Public Act 451 of the Michigan Public Acts of 1994, as
amended, for any actions it does take under this subsection.
1.11 Loan Proceeds. Loan proceeds will be made available only after the
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Action Memo is executed by all the parties hereto and shall only be used to fund
Borrower's Work performed after the effective date of the Action Memo. Once the
Action Memo is properly executed loan proceeds shall be disbursed in its entirety upon
Borrowers request.
1.12 Adherence to Project Budget and Schedule. The Work Plan shall
include a Project Schedule and Project Budget, which shall be reviewed and approved
by Lender. Borrower agrees to keep all expenditures from proceeds of the Loan within
the approved Project Budget, and to complete the work within the Project Schedule.
Borrower agrees to obtain Site Manager's and Lender's prior approval of any
substantive changes in the Work, the Project Budget, or the Project Schedule. Such
approval(s) shall not be unreasonably withheld or delayed.
ARTICLE II REPRESENTATIONS AND WARRANTIES
2.01 Environmental Warranties. Borrower represents and warrants that:
A The Property is not listed or proposed for listing on the National Priorities
List of the U.S. Environmental Protection Agency.
Borrower did not generate or transport hazardous substances, pollutants
or contaminants at or to the Property.
Borrower acquired the Property after the disposal or placement of
hazardous substances, pollutants and contaminants on the Property and
has not caused, contributed to, permitted or exacerbated the release of
such substances, pollutants or contaminants on or from the Property.
Borrower is not otherwise a responsible person as defined in Michigan
Public Act 451, Part 201 of the Michigan Public Acts of 1994.
Borrower is not aware of any environmental contamination at the property
other than that reflected in the following documents (the "Project
Documents") that have been supplied by Borrower to Lender for Lender's
review:
I. Bald Mountain Land Preserve, Oakland County, Michigan
Proposed Landfill and Remediation Plan (cir. 1980).
2. Soil Testing Services, Inc. Construction Specifications and
Operating Procedures Sanicem Landfill (March 1982).
3. EPA Hazardous Site Evaluation Division, Field Investigation Team
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Zone II, Draft Screening Site (September 1990).
4. Hydrogeological Investigation, Sanicem Landfill, Oakland County
(January 1994)
5. Risk Assessment Report, Volume I, Human Health Risk
Assessment, Sanicem Landfill (June 1995).
6. Scope of Work Summary Sanicem Landfill Site (October 1995).
7. Removal Investigation Report, Sanicem Landfill, Oakland County,
Michigan (November 1995).
8. Risk Assessment Technical Memorandum, Sanicem Landfill,
Oakland County, Michigan (November 1995).
9. Additional Removal Investigation Activities at the Sanicem Landfill
Site (October 17, 1996).
10. Analytical Reports for Sanicem Landfill, Oakland County, Michigan
(June 2000).
11. Preliminary Geotechnical Evaluation Report, J. Fons Property,
Lapeer and Bald Mountain Roads — Auburn Hills, Michigan
(October 2000).
12. Part 201, Act 451, Baseline Environmental Assessment of Former
Sanicem Landfill (May 21, 2002).
13. Revised Act 381 Work Plan to Conduct Eligible MDEQ response
Activities for the Former Sanicem Landfill City of Auburn Hills
(August 29, 2002).
14. Revised Act 381 Work Plan to Conduct Eligible MDEQ Response
Activities for the Former Sanicem Landfill Orion Township (August
29, 2002).
15. Interim Report of Findings of Methane Investigation and
Remediation of the Former Sanicem Landfill (October 9, 2003).
16. Letter from Ben Matthews, MDEQ regarding site conditions dated
October 20, 2003.
17. Interim Remedial Action Plan (2004).
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18. Methane Management Plan — Atlas Copco Building (2004).
2.02 Legal Status. Borrower is a Michigan limited liability company validly
existing under the laws of the State of Michigan.
2.03 Interest in Property. The Borrower represents and warrants that it is the
fee owner of the Property, and that it will remain the fee owner until the completion of
the Work.
2.04 No Violation. The making and performance by Borrower of this
Agreement does not violate any provision of federal, state or local law, or result in a
breach of or constitute a default under any agreement, indenture or other instrument to
which Borrower is a party or by which Borrower may be bound.
2.05 Authorization. This Agreement, the Promissory Note, the Mortgage and
the Loan Guaranty have been duly authorized, executed and delivered and are valid
and binding agreements of Borrower.
2.06 Litigation. Presently, there are no pending or threatened actions or
proceedings before any court or administrative agency against the Borrower or the
Property.
2.07 Correctness of Financial Statement. Borrower represents and warrants
that it will present financial statements to the Lender, upon written request, that are the
full and complete financials presented to Borrower's principal financial lender on this
Project.
2.08 Survival. The above-listed representations and warranties shall survive
the execution of this Agreement.
ARTICLE III CONDITIONS PRECEDENT
3.01 The obligation of Lender to make the Loan contemplated hereunder is
subject to the fulfillment of the following conditions:
A. Approval of Lender's Counsel. All legal matters incidental to Lender's
commitment to issue the Loan hereunder shall be satisfactory to Lender's
counsel, including the form, validity and enforceability of this Agreement
and Exhibits C (Promissory Note), D (Guaranty) and E (Mortgage).
B. Compliance. The representations and warranties contained herein shall
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be true on and as of the date of the signing of this Agreement with the
same effect as though such representations and warranties had been
made on and as of such date, and on such date no Event of Default as
defined in Article V herein, and no condition, event or act which, with the
giving of notice or the lapse of time or both, would constitute an Event of
Default shall have occurred and be continuing or shall exist.
C. Identification of Contractors. Borrower shall submit within fifteen (15)
days after execution of the Action Memo to Lender a list identifying all of
Borrower's contractors and subcontractors for the Work.
D. Cooperation With Audit and Public Participation Requirements.
Borrower agrees to cooperate fully with an audit of the Loan and the Work,
if an audit is performed. Borrower shall also cooperate with and assist
Lender in responding to and/or addressing any significant comments
received on the Work Plan or Action Memo when they are published for
public comment.
E. Erect Sian. Borrower agrees to erect a sign on the Property, approved by
Lender, stating that the Work is being financed in part by U.S. EPA
BCRLF Funds and the Lender. The sign will include appropriate contacts
for obtaining information on activities being conducted at the site and for
reporting suspected criminal activities. The sign shall comply with the
requirements in 40 C.F.R. Part 35, Subpart 0.
F. Issuance of Action Memo. Lender shall be under no obligation to
advance the loan proceeds unless and until the Action Memo is fully
executed by all the parties hereto.
ARTICLE IV AFFIRMATIVE COVENANTS
4.01 Covenants. Borrower covenants to do the following items indicated in
this Article for so long as amounts remain due under the Promissory Note.
4.02 Punctual Payment. Borrower shall punctually pay the principal of and
any interest on the Promissory Note at the times and place and in the manner specified
in the Promissory Note.
4.03 Accounting Records. Borrower shall document all the uses of the
proceeds of the Loan, and maintain adequate books and accounts in accordance with
generally accepted accounting principals consistently applied. Borrower shall permit
any representative of Lender at any reasonable time to inspect, audit and examine such
books. Borrower shall maintain documentation on the use of the proceeds of the Loan
for ten years after completion of removal actions supported by loan or until the
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resolution of any litigation, claim, negotiations, audit, cost recovery or other action
involving the documents, whichever is longer and shall obtain approval of Lender prior
to destroying such documentation.
4.04 Annual and Monthly Reports. The Borrower shall furnish annual reports
that document that it is in material compliance with all relevant federal and state
environmental regulations during the life of the loan. Once the Action Memo is fully
executed, the Borrower shall also provide to Lender's Site Manager monthly status
reports on the first day of each month, which provide the following information: a) the
Work done in the last thirty (30) days; b) the Work to be performed in the next thirty
(30) days; c) any substantive concerns encountered in the performance of the Work or
in adherence to the Project Schedule or Project Budget; and d) proposed solutions for
concerns encountered. The Borrower shall also furnish both the annual reports and the
monthly status reports to the U.S. EPA.
4.05 Annual Financial Reports. Borrower shall furnish annual financial
statements, including basic accounting and control mechanisms to track legitimate use
of the proceeds of the Loan and document that such proceeds are put to authorized
uses. Borrower's accounting system must track site-specific costs, cost activity and
operable unit (if applicable). Financial statements include: (a) income statements; (b)
balance sheets; and (c) cash flow statements.
4.06 Other Documentation. Borrower shall furnish such other information as
Lender may from time to time reasonably request.
4.07 Compliance With All Laws. Borrower shall carry out the Work in
accordance with the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. §§ 9601 et seq.) ("CERCLA"); Uniform
Administrative Requirements for Grants and Cooperative Agreements to States and
Local Governments, 40 C.F.R. Part 31; Cooperative Agreements for Superfund
Response Actions, 40 C.F.R. Part 35, Subpart 0; the National Oil and Hazardous
Substances Contingency Plan ("NCP"), and 40 C.F.R. Part 300. Any and all terms in
this document, which are defined in CERCLA and/or NCP, shall have the same
meaning in this Agreement as in CERCLA and/or NCP.
4.08 Compliance With Executive Order 11246. Borrower shall comply with
Executive Order 11246, Equal Employment Opportunity, and implementing regulations
at 41 C.F.R. 60-4 relating to federally-assisted construction contracts.
4.09 Davis Bacon Act. Borrower shall carry out the Work in accordance with
the Davis-Bacon Act of 1931 (CERCLA § 104(g)(1), 40 U.S.C. §§276a to 267a-5 and 42
U.S.C.§ 3222 as set forth in CERCLA § 104(6)). Compliance with the Davis-Bacon Act
requires payment of federal prevailing wage rates for construction, repair or alteration
work funded in whole or in part with loan funds. Borrower must obtain recent and
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applicable wage rates from the U.S. Department of Labor and incorporate them into the
construction contract.
4.10 Insurance. In addition to Contractor's insurance requirements, Borrower
shall maintain and keep in full force and effect insurance of the types and amounts
necessary to protect the security for Borrower's indebtedness to the Lender, including
without limitation, commercial general liability insurance with a minimum of $1,000,000
coverage per accident or claim, property insurance and workman's compensation
insurance (if applicable), and fire insurance for the value of the property. Insurance
coverage shall be primary in relation to any other insurance or self-insurance available
to the Lender. Insurance shall be placed with an insurer with an A.M. Bests' Rating of
no less than A:VII. The Lender shall be named Additional Insureds. Borrower shall
deliver to Lender from time to time at Lender's request certificates of insurance or
policies setting forth all business insurance then in effect. Policies shall be endorsed to
provide that the Lender shall be provided with written notice of thirty (30) days for any
cancellation, suspension or reduction in limits.
4.11 Taxes and Other Liabilities. Borrower shall pay and discharge when
due any and all indebted obligations, assessments, taxes (real and personal), including
federal and state payroll and income taxes, except such as Borrower may in good faith
contest or as to which a bona fide dispute may arise; provided provision is made to the
satisfaction of Lender for eventual payment thereof in the event that it is found that the
same is an obligation of Borrower.
4.12 Litigation. Borrower shall promptly give notice in writing to Lender of any
litigation pending or threatened against Borrower or the Property.
4.13 Non Discrimination and Equal Opportunity. Borrower agrees to
comply with the statutes prohibiting discrimination on the grounds of race, color,
national origin, sex and disability. In addition, Borrower shall undertake good faith
efforts in compliance with 40 C.F.R. § 35.6580 to give opportunities to qualified Small
Business Enterprises ("SBE"), Minority Business Enterprises ("MBE") and Women-
Owned Business Enterprises ("WBE") to submit proposals and bids and provide
services on contracts and subcontracts for services and supplies. Borrower shall
submit a report of such efforts in a manner acceptable to the Lender.
4.14 Debarment and Suspension. Borrower certifies that Borrower and, to its
knowledge, Contractor:
A are not presently or proposed to be debarred or suspended, declared
ineligible, or voluntarily excluded from federal, state or local (hereinafter
"public") transactions;
have not within a three year period preceding this Agreement been
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convicted of or had a civil judgment rendered against them for (i) fraud or
commission of a criminal offence in connection with obtaining, attempting
to obtain, or performing a public transaction or contract under a public
transaction, (ii) violation of federal or state antitrust laws, or (iii)
embezzlement, theft, forgery, bribery, falsification or destruction of
records, making false statements or receiving stolen property;
are not presently indicted for or otherwise criminally or civilly charged by a
public entity with commission of any of the offenses enumerated under
Section 4.12 (b) hereof; and
have not within the preceding three years had a public transaction
terminated for cause or default.
4.15 Environmental Compliance. Borrower certifies that it is not now, and
has not in the past, been subject to any penalties resulting from environmental non-
compliance at the Property. Borrower further certifies that it will conduct removal
actions in accordance with Michigan Public Act 451, Part 201 of the Michigan Public
Acts of 1994, and will modify the removal actions for which the proceeds of this Loan
are utilized, as required by the Lender based on unforeseen site conditions or public
involvement requirements.
4.16 Notice to Change in the Work. Borrower shall immediately report to
Lender and U.S. EPA in writing any potential changes to the Work described in Section
1.04 hereof and the discovery of hazardous substances, pollutants or contaminants not
identified in the Work or Project Documents. The Site Manager and Lender and U.S.
EPA shall approve all changes or modifications to the Work or related documents prior
to such change or modification becoming effective.
4.17 Completion of Project. Borrower agrees to complete the Work within the
Project Schedule. Not later than thirty (30) days after construction activities are
complete, Borrower shall notify Lender and U.S. EPA that the Work is complete. The
notice shall contain a certification and documentation necessary to establish the
following:
A. The Work was conducted in accordance with the Work Plan, the Action
Memo and the Loan Document. Borrower shall promptly supply
supplemental information as needed by the Lender.
B. All proceeds of the Loan were expended for eligible project costs.
C. That the Work, as implemented, is protective of human health and the
environment.
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ARTICLE V EVENTS OF DEFAULT
5.01 Default. The following shall constitute Events of Default:
A Default by Borrower in any payment when due of principal or interest
under the Promissory Note, which default is not cured within thirty (30)
days of receipt of a notice of default.
Any representation or warranty made by Borrower hereunder or in the
Loan Documents proves false or misleading in any material respect.
• Use of the proceeds of the Loan for purposes other than those stated in
Section 1.4 or approved in writing by Lender.
• Default by Borrower in the performance of any other term, covenant or
agreement contained herein, or in the Loan Documents, which default is
not cured within thirty (30) days of receipt of a notice of default (or such
longer period as shall be reasonably necessary to cure such default
provided Borrower promptly commences such cure and thereafter
diligently pursues such cure to completion).
Default by Borrower under the terms of any agreement or instrument
pursuant to which Borrower has borrowed money from any person or
entity for the Property, which default is not cured within thirty (30) days of
receipt of a notice of default (or such longer period as shall be reasonably
necessary to cure such default provided Borrower promptly commences
such cure and thereafter diligently pursues such cure to completion).
Failure of Borrower to satisfy any judgment or remove any levy or other
process against the assets of Borrower within thirty (30) days after the
entry or levy thereof, or at least five (5) days prior to the time of any
proposed sale under any such judgment or levy.
• The breach by guarantor of any of the financial covenants in the Loan
Guaranty, which breach is not cured within thirty (30) days of receipt of a
notice of default.
• The Borrower missing a deadline contained in the work plan by more than
7 business days.
5.02 Acceleration. Notwithstanding anything to the contrary in the Promissory
Note, upon an Event of Default, any indebtedness of Borrower under this Agreement
and the Promissory Note shall, at Lender's option and without notice, become
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immediately due and payable without presentment, notice or demand, all of which are
hereby expressly waived by Borrower, and the obligations, if any, of Lender to permit
further borrowing hereunder shall immediately cease and terminate.
5.03 Secure Site. In the event of default, Borrower shall secure the site. The
cost of securing the site is the responsibility of the Borrower. If Borrower fails to secure
the site within 24 hours, Lender may, but shall not be obligated to, do so at the
Borrower's sole cost.
ARTICLE VI REMEDIES OF LENDER
6.01 Event of Default. Upon the occurrence of an Event of Default, Lender
may exercise, singly or in combination, any or all of the rights, powers and privileges
provided in this Article VI and all other remedies available to the Lender under the Loan
Documents, at law or in equity, at any time and from time to time. Such exercise shall
not constitute a waiver of any of Lender's rights or remedies thereunder, whether or not
the indebtedness evidenced by the Promissory Note shall be due and payable and
whether or not Lender shall have instituted any actions for the enforcement of its rights
under the Promissory Note. Failure of Lender to exercise any rights or remedies at any
time shall not constitute a waiver of any of its rights or remedies. Lender may exercise
any and all of the rights, powers, privileges and remedies provided in the Loan
Documents.
6.02 TIF Recapture. In the event of a default under Article V, Lender shall
have the right as allowed by law to retain and subordinate to the security previously
given to Huntington Bank, or require that the local taxing jurisdictions retain, any
Combined County taxes that would otherwise be used to reimburse Lender for eligible
costs pursuant to any approved Brownfield plan for the Sanicem Site (including the
portions located in Orion Township and Auburn Hills), and such right shall continue until
the loan (principal and interest) is paid in full. Borrower agrees to execute any and all
documents that Lender might reasonably require to implement this provision. As
allowed by law, any amounts so retained shall be forwarded to the Oakland County
Treasurer and shall be set off against the outstanding principal and interest on the Loan.
ARTICLE VII INDEMNIFICATION
7.01 The Borrower shall, at Borrower's expense, defend, indemnify, and
otherwise hold Lender, its officers, employees and agents harmless against any and all
claims, demands, losses, expenses, damages (general, punitive or otherwise) and
causes of action (whether legal or equitable in nature) asserted by any person, firm,
corporation, or other entity and arising out of or caused by Borrower's actions or
inactions with regard to the Property, or by the use of the proceeds of the Loan.
Borrower shall pay Lender upon demand all claims, judgments, damages, lawsuits or
expenses (including legal expenses) incurred by Lender as a result of any legal action
14
arising out of or caused by any of the Loan Documents, or by the use of the proceeds of
the Loan.
ARTICLE VIII MISCELLANEOUS
8.01 Waiver. No delay or failure of Lender, or any holder of the Promissory
Note exercising any right, power or privilege hereunder or in the Loan Documents shall
affect such right, power or privilege; nor shall any single or partial exercise thereof or
any abandonment or discontinuance of steps to enforce such a right, power or privilege
affect such right, power or privilege. The rights and remedies of Lender hereunder are
cumulative and not exclusive. Any waiver, permit, consent or approval of any kind by
Lender, or any holder of the Promissory Note, of any breach or default hereunder, or
any such waiver of any provisions or conditions hereof, must be in writing and shall be
effective only to the extent set forth in writing.
8.02 Successors. This Agreement shall be binding upon the permitted
assigns or successors of Borrower and Lender. This Agreement shall not be assigned
or transferred by Borrower without the written consent of Lender and any purported
assignment or transfer without such prior written consent shall be void.
8.03 Notices. Any notice, consent, waiver, request or other communication
required or permitted to be given under this Agreement shall be in writing and shall be
deemed given (a) on the same day if delivered personally, (b) three business days after
mailed if delivered by certified or registered mail, return receipt requested, postage
prepaid, (c) one business day after dispatched if dispatched by nationally recognized
overnight delivery service, or (d) on the same day if sent by telecopier (subject to
obtaining a confirmation receipt), in any event, addressed to the party's address as
follows:
To the Lender:
Manager-Waste Resource Management Division
Oakland County
1200 N. Telegraph Road
Pontiac, MI 48341
Counsel;
Keith J. Lerminiaux
Deputy Corporation Counsel
Department of Corporation Counsel
15
1200 N. Telegraph Road, Dept. 419
Pontiac, MI 48341-0419
To the Borrower:
Fred Gordon
Brown Road Group, LLC
115 S. Main Street
Suite 300
Royal Oak, MI 48067
Counsel:
Paul F. Bohn
Fausone, Taylor & Bohn, LLP
41820 W. Six Mile Road, Suite 103
Northville, MI 48167
To U.S. EPA:
Brooke Furio
Project Manager
U.S. EPA, Region 5
25089 Center Ridge Road
Westlake, OH 44145-4114
And
Jeff Kimble
On-Scene Coordinator
U.S. EPA, Region 5
9311 Groh Road
Gross Ile, MI 48138-1697
Either party may, upon prior notice of seven (7) calendar days, change its address for
all subsequent notices.
8.04 Attorney's Fees. Borrower will reimburse Lender for all costs, expenses
and reasonable attorneys' fees expended or incurred by Lender in enforcing this
Agreement, in actions for declaratory relief in any way related to this Agreement, or in
collecting any sum which becomes due the Lender on the Promissory Note.
8.05 Exhibits. All exhibits mentioned herein shall be deemed incorporated
16
herein by reference as though fully set forth herein.
8.06 Relationship. The relationship of Lender and Borrower is that of lender
and borrower. No party hereto intends to create any other relationship hereby, and the
parties disavow and negate any intention to create a partnership or joint venture hereby.
8.07 Entire Agreement. The terms and conditions of this Agreement, all
exhibits attached hereto and any documents expressly incorporated by reference
represent the entire agreement between the parties with respect to the subject matter of
this Agreement. This Agreement shall supersede any prior loan agreements, oral or
written, regarding the subject matter of this Agreement between Lender and Borrower.
This Agreement may not be amended or modified without the written consent of the
parties hereto.
8.08 Inconsistency. If any conflicts arise between the terms and conditions of
this Agreement and the terms and conditions of the attached exhibits or any documents
expressly incorporated by reference, the terms and conditions of this Agreement shall
control except where federal statutes or regulations are controlling.
8.09 Severability. If any part of this Agreement is determined to be illegal or
unenforceable, all other parts shall be given effect separately and shall be in effect.
8.10 Governing Law. The Loan Documents shall be construed in accordance
with and governed by the laws of the State of Michigan except where superceded by
federal statutes or regulations.
17
EXECUTION
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the date first above written.
WITNESSES: FOR THE BORROWER:
BROWN ROAD GROUP, LLC
By:
FRED GORDON
MANAGER
Dated:
STATE OF MICHIGAN )
COUNTY OF OAKLAND )
This document was acknowledged before me on
Notary Public, Oakland County, MI
My Commission Expires:
17
EXECUTION
WITNESSES FOR THE LENDER:
OAKLAND COUNTY
By:
THOMAS LAW
CHAIRMAN
Dated:
STATE OF MICHIGAN )
COUNTY OF OAKLAND )
This document was acknowledged before me on by on
behalf of the Oakland County.
Notary Public, Oakland, MI
My Commission Expires:
18
EXHIBIT A
LEGAL DESCRIPTIONS
LEGAL DESCRIPTION
Township of Orion
PARCEL IDENTIFICATION NO. 09-35-400-013:
PART OF THE SOUTHEAST% OF SECTION 35, TOWN 4 NORTH, RANG 10 EAST,
ORION TOWNSHIP, OAKLAND COUNTY, MICHIGAN DESCRIBED AS:
BEGINNING AT A POINT DISTANT SOUTH 87° -52' —50" WEST [S 89° -00'-16" W,
MEASURED], 300.00 FEET FROM THE SOUTHEAST SECTION CORNER; THENCE
NORTH 02° -07'-10" WEST [N 00° -59'-41" W, MEASURED], 359.82 FEET; THENCE
ALONG A CURVE TO RIGHT, RADIUS 360.00, CHORD BEARS NORTH 39°-3'-10-"
WEST [N 38° -22'-41" W, MEASURED], 96.67 FEET, DISTANCE OF 96.96 FEET;
THENCE NORTH 31° -47'-11" WEST [N 30*-39'42" W, MEASURED], 183.24 FEET;
THENCE ALONG A CURVE TO THE LEFT, RADIUS 340.00, CHORD BEARS NORTH
62°-03'-04" WEST [N 62°-55'-35" W, MEASURED], 342.72 FEET, DISTANT OF 359.19
FEET; THENCE SOUTH 87°-41'-04" WEST [88°-48'-33" W, MEASURED], 1554.35
FEET; THENCE SOUTH 03°-08'-46" EAST [S 03°-08'-46" E, MEASURED], 101.13
FEET; THENCE SOUTH 11*-29'-07" WEST [S 12°-36'36" W, MEASURED], 283.66
FEET; THENCE SOUTH 87°-41'-04" WEST [S 88°-48'-33" W, MEASURED], 209.21
FEET; THENCE 01°-24'-26" EAST [S 00°-16-57" E, MEASURED], 384.78 FEET;
THENCE NORTH 87°-52'-50" EAST [N 89°-00'-21" E], 2279.23 FEET TO THE POINT
OF BEGINNING.
20
Legal Description
Brown Road Group Property - Auburn Hills
PART OF THE NORTHEAST FRACTIONAL 1/4 OF SECTION 2, TOWN 3 NORTH,
RANGE 10 EAST, CITY OF AUBURN HILLS, OAKLAND COUNTY, MICHIGAN, AND
PART OF THE SOUTHEAST FRACTIONAL IA OF SECTION 35, TOWN 4 NORTH,
RANGE 10 EAST, ORION TOWNSHIP, OAKLAND COUNTY, MICHIGAN,
DESCRIBED AS: BEGINNING AT THE NORTHEAST CORNER OF SECTION 2;
THENCE S. 01°-16-34" E, 1953.02 FEET; THENCE S 88°-43'-56" W, 544.50 FEET; S
01°-16'-34" E, 400.00 FEET; THENCE S 88°-43'-56" W, 808.07 FEET; THENCE N 00-
56'-51" W, 788.36 FEET; THENCE N 86°-22'-22" W 1234.73 FEET; THENCE S 03°-
44'-14" W, 10.57 FEET; THENCE S 88°-15'-55" W, 32.03 FEET TO A POINT ON THE
EASTERLY LINE OF LAPEER ROAD NORTH 1498.72 FEET AND EAST 83.89 FEET
FROM CENTER OF SECTION CORNER OF SECTION 2; THENCE, N 00°-32'-55" E,
298.60 FEET; THENCE, N 00°-09'-05" W, 406.63 FEET; THENCE N 00°-53'-05" W,
400.00 FEET; THENCE S 89°-22'-55" W, 91.42 FEET TO A POINT ON THE CENTER
OF SECTION 2; THENCE N 00°-37'-05" W, 376.90 FEET ALONG THE CENTER OF
SECTION 2 TO THE NORTH "1/4 CORNER OF SECTION 2; THENCE N 89°-00'-21" E,
98.87 FEET TO A POINT DISTANT N 89°-00'-21" E, 33.27 FEET FROM THE SOUTH
1/4 CORNER OF SECTION 35; THENCE N 00°-16'-57" W, 384.78 FEET; THENCE N
88°-48'-33" E, 209.21 FEET; THENCE N 12°-36'-36" E, 283.66 FEET; THENCE N 02°-
01'-17" W, 101.13 FEET; THENCE N 88°-48'-33" E, 1554.35 FEET; THENCE ALONG
A CURVE TO THE RIGHT, RADIUS 340.00 FEET, CHORD BEARS S 60°-55'-35" E,
342.72 FEET, DISTANCE OF 359.19 FEET; THENCE S 30°-39'-42" E, 183.24 FEET;
THENCE ALONG A CURVE TO THE LEFT, RADIUS 360.00 FEET, CHORD BEARS S
38*-22'-41" E, 96.67 FEET, DISTANCE OF 96.96 FEET; THENCE S 00°-59`-41" E,
359.82 FEET TO A POINT ON THE SOUTH LINE OF SECTION 35; THENCE N 89°-
00'-21" E, 300.00 FEET ALONG THE SOUTH LINE OF SECTION 35 TO THE POINT
OF BEGINNING.
21
EXHIBIT B
ACTION MEMO
NOTE: Action Memo to be completed upon further environmental investigation and
subject to US EPA and Oakland County approval as described in Section 1.01, 1.04,
1.09 & 1.11. No loan proceeds will be disbursed until the Action Memo is complete and
approved by all parties.
22
EXHIBIT C
PROMISSORY NOTE
NOTE: Promissory Note to be executed prior to loan proceeds disbursal and after
completion of Action Memo as described in Sections 1.01, 1.04, 1.09 & 1.11.
23
BROWNFIELD CLEANUP REVOLVING LOAN FUND
PROMISSORY NOTE
$700,000 February , 2004
Pontiac, Michigan
FOR VALUE RECEIVED the undersigned, BROWN ROAD GROUP, LLC, (the
"Borrower"), hereby promises to pay to the order of, OAKLAND COUNTY, (the
"Lender") the principal sum of SEVEN HUNDRED THOUSAND ($700,000 ) DOLLARS
(hereinafter referred to as the "Loan Obligation") and interest on the Loan Obligation in
the manner and on the dates indicated in this Promissory Note. The amount of interest
payable for the initial term shall be calculated on the outstanding principal balance at an
interest rate of the prevailing six-month Treasury Bill rate and that such rates shall be
computed quarterly.
In the event that the principal amount of this Note is not repaid in full upon
maturity, or in the event that the Borrower does not make timely payments on the
payment dates indicated herein, then interest shall be charged at the rate of TEN (10 %)
per year from the date of the default of payment until such payments are made or until
the indebtedness evidenced by this Note is repaid in full.
Lender shall send to Borrower monthly statements indicating the interest and
principal, if any, due. Said statements shall be mailed to Borrower at least twenty-one
(21) days before the due date of the payment.
The Loan Obligation shall be payable at the offices of the Borrower located at
1200 N TELEGRAPH ROAD, PONTIAC, MICHIGAN 48341 or at such other place as
may be designated by the Lender from time to time, in accordance with the following
conditions.
This Note evidences a loan to the Borrower from the Lender under the
Brownfield's Cleanup Revolving Loan Fund ("BCRLF") Program of the U. S.
Environmental Protection Agency for the exclusive purpose of carrying out a removal
action to address the hazardous substances identified on the Property located in Exhibit
A, of the Loan Agreement.
This Note is subject to the terms and conditions the Brownfield's Cleanup
Revolving Loan Fund Agreement (the "Agreement") and the Loan Guaranty
("Guaranty") all of which are executed concurrently with this Note. Borrower is entitled
to the benefits and is subject to the conditions of all three documents. All the terms,
conditions and provisions of the Agreement and the Guaranty are, by this reference
24
thereto, incorporated herein as part of this Note, and shall control in the interpretation
and enforcement of this Note.
The terms of this note is twenty-four (24) months ("Initial Term"). During the
Initial Term, interest only payments shall be due on the fifteenth (15 th) day of each
month.
If this note is not paid in full by the twenty-fourth (24) month, an administration
fee of $50,000 shall be added to the principal.
If this note is not paid in full within the Initial Term, the interest rate shall adjust to
2% above prime and interest and principal shall be due monthly based on a three (3)
year amortization.
Each year after the Initial Term the note remains outstanding, an additional
$25,000 administration fee shall be added to the principal.
This note must be paid in full by the sixtieth (60) months after execution of this
note.
In addition to the foregoing, the Borrower hereby promises to pay to the full
extent required by the Agreement all costs and expenses of collection incurred in
connection with any default by the Borrower hereunder and all other payments required
to be made by the Borrower pursuant to the Agreement.
In the event the Borrower should fail to make any of the payments required in this
Note, such payments so in default shall continue as an obligation of the Borrower until
the amount of default shall have been fully paid.
In case of default in this Note or a default or an "event of default", as defined in
the Loan Agreement and the Guaranty the entire principal amount of the Loan
Obligation together with any interest as provided for herein, at the option of the holder
hereof, may be declared immediately due and payable as provided for in the Agreement
and the Guaranty with which this Note is paraphed.
The maker of this Note hereby waives presentation for payment, demand, notice
of nonpayment and protest, all pleas of division and discussion, and consents that the
time of payment may be extended without notice thereof.
This Note is secured by a Guaranty of even date herewith, executed and
delivered by maker, hereof, the terms and conditions of which said Guaranty are made
a part hereof and shall control in the interpretation and enforcement of this Note.
25
WITNESSES FOR THE BORROWER:
BROWN ROAD GROUP, LLC
By:
Fred Gordon
Manager
Dated:
STATE OF MICHIGAN )
COUNTY OF OAKLAND )
This document was acknowledged before me on by on
behalf of the Brown Road Group, LLC.
Notary Public, Oakland County, MI
My Commission Expires:
26
EXHIBIT D
LOAN GUARANTY
NOTE: Loan Guaranty to be executed prior to loan proceeds disbursal and after
completion of Action Memo as described in Sections 1.01, 1.04, 1.09 & 1.11.
Acceptance of Loan Guaranty subject to Oakland County financial review of
Guarantors.
27
LOAN GUARANTY
THIS LOAN GUARANTY ("Guaranty") is executed and delivered by OSCAR E.
STEFANUTTI, individually, WILLIAM N. WIDMYER, individually, FRED GORDON,
individually, THE STEFANUTTI FAMILY LIMITED PERTNERSHIP, a Michigan limited
partnership, and REFCO, INC.. a Florida corporation, jointly and severally, as of the
day of , 2004, in favor of OAKLAND BROWNFIELD INITIATIVE ("Lender").
RECITALS:
WHEREAS, Brown Road Group, LLC ("Borrower") has requested that Lender
enter into a certain Loan Agreement (the "Loan Agreement") of even date herewith, by
and between Borrower and Lender, pursuant to which Lender is being requested to lend
to Borrower an amount not to exceed $700,000 (the "Loan") to finance certain costs of
remediation on the redevelopment of 146 acres of land that is to be developed into a
high tech/light industrial park located in the City of Auburn Hills and the Township of
Orion, County of Oakland, State of Michigan (the "Project Site" or the "Project").
WHEREAS, Borrower's obligations to Lender are evidenced by a certain
Promissory Note (the "Note") of even date (the Note is sometimes referred as the "Loan
Documents").
WHEREAS, Lender is unwilling to enter into the Loan Agreement and to make
the Loan unless the Guarantor delivers this Guaranty to Lender.
NOW, THEREFORE, in consideration of the foregoing and in order to induce
Lender to enter into the Loan Agreement and to make the Loan to Borrower subject to
the terms and conditions of the Loan Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
further acknowledging that Lender intends to rely on the guaranty of the Guarantor
hereunder, the Guarantor hereby agrees as follows:
1. Particular Terms — Definitions. As used in this Guaranty, the following
terms and expressions have the respective meanings indicated opposite each of them.
Guarantor:
Name and Address:
Name and Address:
Oscar E. Stefanutti
1455 Kirkway Road
Bloomfield Hills, MI 48302
William N. Widmyer
2921 Orchard Place
Orchard Lake, MI 48324
28
Name and Address: Fred Gordon
473 Newburne Pointe
Bloomfield Hills, MI 48304
Name and Address: The Stefanutti Family Limited
Partnership
114 South Woodward Avenue, Ste. 3
Birmingham, MI 48009
Name and Address: REFCO, Inc.
115 South Main Street, Ste. 300
Royal Oak, MI 48067
Lender:
Name and Address: Oakland Brownfield Initiative
1200 N. Telegraph Road
Pontiac, MI 48341-0409
Borrower:
Name and Address:
Note:
Brown Road Group, LLC
115 South Main Street, Ste. 300
Royal Oak, MI 48067
$700,000 Promissory Note (Loan)
dated of even date herewith, including
any extensions, renewals,
amendments or modifications thereof
(the "Note").
Loan Documents: As defined in the Note.
Capitalized Terms not Defined As defined in the Loan Agreement.
Herein:
2. Guaranteed Obligations. In order to induce Lender to make the loans
evidenced by the Note to Borrower, and in consideration thereof and of other good and
valuable consideration, the receipt of which is hereby acknowledged, the Guarantor
hereby jointly and severally and absolutely and unconditionally guarantees to the lender
the full and prompt payment and performance when due, whether by acceleration or
otherwise, of the following (hereinafter collectively referred to as the "Guaranteed
29
Obligations"):
(a) Indebtedness in the principal amount of Seven Hundred Thousand
and 00/100 Dollars ($700,000) (the "Loan"), together with all accrued and unpaid
interest existing from time to time, owed by Borrower to Lender evidenced by the Note.
(b) The Guaranteed Obligations to be paid and performed by Borrower
under the terms of (i) that certain Loan Agreement between Lender and Borrower of
even date herewith, including without limitation, the Indebtedness (as defined in the
Loan Agreement); and (ii) all other Loan Documents (as defined in the Loan
Agreement), as the same area amended, restated or modified from time to time) (the
Loan Agreement, the Note and all such other Loan Documents are sometimes
collectively referred to herein as the "Loan Documents").
(c) Any extension or renewal (but not increase) of the indebtedness
and Guaranteed Obligations set forth in Sections 2(a) and 2(b) above, and all interest
and other Guaranteed Obligations due in connection with or on account of such items.
(d) All costs and expenses, including, without limitation, attorneys' fees
and court costs at any time paid or incurred by Lender when (i) collecting any of the
Guaranteed Obligations or any part thereof, including any and all attorneys' fees and
court costs incurred with respect to Borrower's or any Guarantor's bankruptcy
proceeding, (ii) defending any suit seeking to set aside, avoid or recover any payments
on the Guaranteed Obligations made to the lender, and (iii) enforcing any instrument
evidencing or securing the Guaranteed Obligations.
(e) Any and all amounts paid to or for the benefit of the Lender and
which are set aside, avoided or recovered from the Lender by or for the benefit of any
insolvency or bankruptcy estate, including attorneys' fees, costs and expenses incurred
by the Lender with respect to defense of any actions against the Guarantor or the
Lender to obtain such payment, whether or not (i) the Guaranteed Obligations have
been paid in full, (ii) the Lender has released any security given by the Guarantor to the
Lender to secure Guarantor's obligation under this Guaranty, or (iii) the Lender has
otherwise released or discharged the Guarantor or returned or cancelled this Guaranty;
and, interest, costs and fees accruing after the filing of a bankruptcy petition by or
against the Borrower, even though such interest, costs and expenses may not be
allowable, in whole or in part, in such bankruptcy case.
3. Consideration. Guarantor acknowledges that it has made this Guaranty
to induce Lender to make, or extend the date for payment of, advances to Borrower of
the Loan and that Lender is making, or extending the day for payment of, such
advances to Borrower in reliance upon this Guaranty and would not make such
advances without the appropriate execution and delivery of this Guaranty. Guarantor
represents and warrants that Guarantor has a financial interest in Borrower and will
30
receive substantial economic benefit by reason of Lender extending the Loan to
Borrower; provided, however, that Guarantor's liability hereunder shall not be affected
or impaired by Guarantor's disposition or loss of its financial interest in Borrower or by
reason of Lender's refusal in accordance with the terms of the Loan Documents to
make Loan advances to Borrower.
4. Nature of Guaranty.
(a) Unconditional, Absolute and Not Contingent. This is an
irrevocable, unconditional and absolute guaranty of payment and performance, not of
collection, and Guarantor agrees that the liability of Guarantor on this Guaranty shall be
immediate and shall not be contingent upon the exercise or enforcement of any lien or
realization upon any security or Collateral Bank may at any time possess. Any one or
more successive and/or concurrent actions may be brought hereon against Guarantor
either in the same action, if any , brought against Borrower or in separate actions, as
often as Lender, in its sole and absolute discretion, may deem advisable. No election to
proceed in one form of action or proceeding, or against any party, or on any obligation,
shall constitute a waiver of Lender's right to proceed in any other form of action or
proceeding or against other parties unless Lender has expressly waived such right in
writing. Specifically, but without limiting the generality of the foregoing, no action or
proceeding by Lender against Borrower under any document or instrument evidencing
or securing the Guaranteed Obligations, including but not by way of limitation, the Loan
Documents of Borrower to Lender shall serve to diminish the liability of Guarantor,
except to the extent Lender realized payment by such action or proceeding,
notwithstanding the effect of any such action or proceeding upon Guarantor's right of
subrogation against Borrower. Receipt by Lender of payment or payments with
knowledge of the breach of any provision or any of the Guaranteed Obligations or Loan
Documents shall not, as to the Guarantor, be deemed a waiver of such breach. All
rights, powers and remedies of Lender hereunder and under any other agreement now
or at any time hereafter in force between Lender and the Guarantor shall be cumulative
and not alternative and shall be in addition to all rights, powers and remedies given to
Lender by law. The Guaranteed Obligations of Guarantor are unconditional,
notwithstanding any defect in the genuineness, validity, regularity or enforceability of
any of the Guaranteed Obligations or any of the Loan Documents.
(b) Continuing Guaranty. This is a continuing Guaranty, independent
of and in addition to any other Guaranty, endorsement or Collateral held by Lender
therefore, whether or not furnished by the Guarantor. A revocation of this Guaranty
may be made by the Guarantor by a writing signed by the Guarantor, or, if deceased, by
its personal representative, and delivered to the Lender and shall become effective at
the opening of business on the banking day next succeeding the receipt and
acknowledgement thereof by Lender. No revocation shall in any way affect the
Guaranteed Obligations of Guarantor to Lender with respect to the Guaranteed
Obligations created or incurred prior to revocation. Revocation by any one or more of
31
the Guarantors will not affect the Guaranteed Obligations of the remaining Guarantors
or any of them. Notwithstanding any such revocation, this Guaranty shall remain in full
force and effect until all of the Guaranteed Obligations contracted for or created before
such notice, and any extensions or renewals thereof, whether made before or after such
Guaranteed Obligations are created, together with interest accruing thereon, after such
notice, shall be paid in full. Payment of all Guaranteed Obligations from time to time
shall not operate as a discontinuance of this Guaranty, unless revocation as above-
provided has been delivered to and acknowledged by Lender.
(c) Joint and Several Guaranty. The Guaranteed Obligations of each
Guarantor under this Guaranty and all other Guarantors of the Guaranteed Obligations
under all other Guarantys, whether executed contemporaneously herewith or at any
time prior to or after the date hereof, are and will be joint and several. The Lender may
release or settle with any one or more of the Guarantors at any time without affecting
the continuing liability of the remaining Guarantor or Guarantors. The failure of any
other person to sign this Guaranty shall not release or affect the Guaranteed
Obligations or liability of the Guarantor. The Guarantor waives the benefit of any statute
of I imitations affecting Guarantor's liability hereunder or the enforcement thereof.
(d) Unenforceability/Bankruptcy. Guarantor agrees to pay the
Guaranteed Obligations in accordance with the terms of each document evidencing
such Guaranteed Obligations regardless of whether (i) such terms are held
unenforceable, void or of no effect against the Borrower; or (ii) a voluntary or involuntary
case in bankruptcy or receivership is commenced by or against Borrower. The
Guarantor agrees to pay principal, interest, late charges, attorneys' fees and all other
sums owing pursuant to the terms of each document evidencing the Guaranteed
Obligations, regardless of whether the Borrower is held liable for such amounts.
(e) Expenses/Preferential Payments. Guarantor further agrees to
pay all reasonable expenses incurred by Lender in Connection with enforcement of its
rights under the Guaranteed Obligations, the Loan Documents, this Guaranty, or in the
event the Lender is a party to any litigation because of the existence of the Guaranteed
Obligations, the Security Documents or this Guaranty, as well as court costs, collection
charges and reasonable attorney fees and disbursements. Guarantor further agrees
that to the extent Borrower or any other party makes a payment or payments to Lender
on the Guaranteed Obligations, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any bankruptcy act,
state or federal law, common law or equitable cause, then, notwithstanding any
termination of this Guaranty or the cancellation of any note or other agreement
evidencing the Guaranteed Obligations of Borrower, to the extent of such payment or
repayment, the Guaranteed Obligations or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if s aid payment or payments had not
been made.
32
(f) No Obligation to Enforce Against Borrower. As a condition of
payment or performance by the Guarantor, the Lender is not required to seek to enforce
any remedies against the Borrower or any other party liable to the Lender on account of
the guaranteed debt; nor is the Lender required to seek to enforce or report to any
remedies with respect to any security interest, lien or encumbrance granted to the
Lender by the Borrower or any other party on account of the guaranteed debt.
5. Security for Guaranty.
(a) Collateral. Guarantor pledges to the Lender all payments to
Guarantor from Borrower ("Collateral") as security for payment and performance of the
Guaranteed Obligations. The Lender shall not be obligated to release its security
interest in the Collateral until the Guaranteed Obligations are paid in full; provided,
however, subject to Lender's rights set forth in Sections 11(a), (b), (c) herein, and until
the occurrence of an Event of Default (as defined in the Loan Agreement), the Lender's
security interest shall not be deemed to restrict the Guarantor's access to, and ability to
use in the ordinary course, the Collateral. The Guaranteed Obligations shall not be
considered paid in full until all payments to the Lender are no longer subject to any right,
by any person, to invalidate or set aside such payments or to seek to recoup the
amount of such payments or to declare such payments to be fraudulent or preferential.
(b) Default; Additional Collateral; Remedies. Upon the occurrence
of default under any of the Loan Documents or upon non-payment when due or maturity
of any of the Obligations, Lender may demand that the Guarantor furnish further
security as shall be satisfactory to the Lender or the Lender may immediately
appropriate, collect, sell and realize upon the Collateral in accordance with the terms of
the documents executed in connection with the Collateral. The Lender may apply the
proceeds of any such sale to the payment of the Guaranteed Obligations in such order
as the Lender may elect. The Collateral may be released, exchanged or surrendered
by the Lender and any balances to the credit of Borrower may be surrendered by the
Lender without impairing or affecting the liability of any Guarantor.
6. Guarantor Waivers. The Guarantor hereby waives: (a) notice of
acceptance of this Guaranty and of creations of Guaranteed Obligations of Borrower to
Lender; (b) presentment and demand for payment of any Guaranteed Obligations of
Borrower; (c) protest, notice of protest, and notice of dishonor or default to the
Guarantor or to any other party with respect to any of the Guaranteed Obligations or
Loan Documents; (d) any demand for payment under this Guaranty; (e) any defense
arising by reason of any disability or other defense of Borrower by reason of the
cessation from any cause whatsoever of the liability of the Borrower, including, without
limitation, failure of consideration, breach of warranty, fraud, payment, statute of frauds,
bankruptcy, lack of legal capacity, statute of limitations, lender liability, accord and
satisfaction , and usury; (f) any rights to extension, composition or otherwise under the
33
Bankruptcy Code or any amendments thereof, or under any state or other federal
statute; and (g) any right or claim or claim of right to cause a marshalling of Borrower's
assets. No notice to or demand on the Guarantor shall be deemed to be a waiver of the
obligation of the Guarantor or of the right of Lender to take further action without notice
or demand as provided herein; nor in any event shall any modification or waiver of the
provisions of this Guaranty be effective unless in writing nor shall any such waiver be
applicable except in the specific instance for which given.
7. Guarantee Unimpaired by Subsequent Events. Except as otherwise
provided herein, Guarantor hereby expressly waives the right to receive notice of, to
consent to, or receive any additional consideration on account of any of the following,
and Guarantor hereby agrees that its obligations under this Guaranty shall not be
released, diminished, impaired, reduced, or otherwise affected by the occurrence of any
of the following events (or the fact that any of such events have occurred):
(a) The amendment, renewal, extension, restatement, waiver, indulgence or
assignment of any part or all of the Guaranteed Obligations or any part of
the Plans, the Loan Documents, or other documents evidencing, securing,
or pertaining thereto, or any other forbearance or agreement by Lender to
accept a deferred payment or performance of any Guaranteed
Obligations, including extension of time for payment of any of the
Guaranteed Obligations, any changes in the terms of the Guaranteed
Obligations, including an increase or decrease in installment payments or
any interest rate adjustments any discharge of the Borrower, or any other
change in the Guaranteed Obligations, including a change in the business
structure of the Borrower.
(b) Any settlement or compromise in connection with the Guaranteed
Obligations or the Loan Documents, including the cancellation of any part
of the Guaranteed Obligations or the release of Borrower, any Guarantor,
or any other Person from liability for all or any part of the Guaranteed
Obligations, it being acknowledged and agreed by Guarantor that
Guarantor may be required to pay or perform the Guaranteed Obligations
in full without the assistance or support of any other party, and Guarantor
has not been induced to enter into this Guaranty on the basis of any
contemplation, belief, understanding, or agreement that any other party
shall at all times be liable to pay or perform the Guaranteed Obligations or
that Lender shall look to other parties to pay or perform the Guaranteed
Obligations (provided that nothing herein shall affect the rights of any
Guarantor against any other Guarantor);
(c) The failure to perfect a lien (or the unenforceability of any lien) in any
collateral intended as security for any part of the Guaranteed Obligations,
or the release of, the surrender of, the exchange of, or the substitution of
34
(k) The failure of Lender to exercise diligence, commercial reasonableness or
reasonable care in the preservation, protection, enforcement, sale, or
other handling of all or any part of the collateral for any of the Guaranteed
Obligations or in bringing suit against Borrower, any Guarantor, or any
other party to enforce any of the Guaranteed Obligations or any other
liability of any such party; or
(I) Any act or omission of the creditor (except acts or omissions in bad faith)
that materially increases the scope of the Guarantor's risk, including
negligent administration of the Loan.
8. Guarantor Representations and Warranties. The Guarantor represents
and warrants that: (a) this Guaranty is executed and delivered at Borrower's request;
(b) Guarantor has reviewed or has had an adequate opportunity to review all of the
terms and provisions of the Plans, the Loan Agreement, and the other Loan Documents;
(c) Guarantor is not relying on and the Lender has made no representations to the
Guarantor as to the creditworthiness of the Borrower; (d) the Guarantor assumes full
responsibility for obtaining from the Borrower on a continuing basis financial and other
information pertaining to the Borrower's financial condition, the Project and the progress
of construction of the Improvements, and Guarantor is and will remain informed of the
foregoing and all of the circumstances which bear upon the risk of non-payment of the
Guaranteed Obligations guaranteed hereby. The Guarantor agrees that the Lender is
not obligated to inform Guarantor of any such circumstances, whether now existing of
hereafter arising, and that the Lender is not required to inquire as to the powers of the
Borrower or the officers, directors, partners, members or agents acting or purported to
act on its behalf, and any of the Guaranteed Obligations made or created in reliance
upon the professed exercise of such powers shall be guaranteed hereunder. The
Guarantor agrees to keep adequately informed of any facts, events or circumstances
which might in any way affect the risks of the undersigned under this Guaranty. The
Guarantor waives any duty on the part of the Lender, and agrees that it is not relying
upon nor expecting the Lender to disclose to the Guarantor any fact now or later known
by the Lender, whether relating to the operations or conditions of the Borrower, the
existence, liabilities or financial condition of any co-guarantor of the Guaranteed
Obligations, the occurrence of any default with respect to the Guaranteed Obligations,
or otherwise, notwithstanding any effect these facts may have upon the Guarantor's risk
under this Guaranty or the Guarantor's rights against the Borrower. The Guarantor
knowingly accepts the full range of risk encompassed in this Guaranty, which risk
includes without limit, the possibility that the Borrower may incur Guaranteed
Obligations to the Lender after the financial condition of the Borrower, or its ability to
pay its debts as they mature, has deteriorated or the possibility that without the
Guarantor's consent, the Lender may change or modify the terms and conditions of the
Guaranteed Obligations including but not limited to, increasing the interest rate or rates
applicable to the Guaranteed Obligations or extending the time of payment of the
36
all or any part of such collateral; or the subordination of any lien securing
any of the Guaranteed Obligations to any other lien or liens covering such
collateral; or the deterioration, waste, loss, or impairment (including
without limitation, negligent, willful, unreasonable, or unjustifiable
impairment) of any such collateral, it being acknowledged by Guarantor
that Guarantor is not entering into this Guaranty in reliance on or in
contemplation of the benefits of any collateral for the Guaranteed
Obligations, the value thereof, or the validity or enforceability of any
security interest therein;
(d) The addition of any collateral as security for, or the addition of any person
as a party with liability for, the payment or performance of all or any part of
the Guaranteed Obligations, or surrender, release, exchange or
substitution of any Collateral;
Any substitution, exchange, release or other disposition of all or any part
of the Guaranteed Obligations or Loan Documents;
Any action with respect to any of the Guaranteed Obligations or any
documents evidencing, securing, or pertaining thereto, including but not
limited to, any settlement or compromise of any amount due thereunder,
the pursuit of any particular remedy before any other remedy or the
exercise of, or waiver or failure to timely exercise, any right conferred
thereunder, the exercise of such rights being wholly discretionary with
Lender;
Any subordination of payments under the Guaranteed Obligations or Loan
Documents to any other debt or claim;
Any change in the composition, status, or form of organization, or the
death, insolvency, bankruptcy, disability, or lack of authority, of Borrower,
any other guarantor or any other Person at any time liable for the payment
or performance of all or any part of the Guaranteed Obligations;
Any advances for the purpose of performing any covenant or agreement
of the Borrower, or curing any breach or event of default in the Loan
Documents;
Any neglect, delay, omission, failure, or refusal of Lender to act in
connection with the Guaranteed Obligations or the Loan Documents or to
foreclose on any collateral for the Guaranteed Obligations or to sue or
take any other action to enforce the collection or performance of all or any
part of the Guaranteed Obligations or any right contained in any document
evidencing, securing, or pertaining thereto;
(e)
(f)
(g)
(h)
(i)
0)
35
Guaranteed Obligations.
8. Subordination/Subrogation. In any event that Guarantor shall advance
or become obligated to pay any sums to the Borrower, or in the event that for any
reason Borrower or any subsequent owner of any Collateral granted as security to
Lender under the Loan Documents is now or shall hereafter become indebted to
Guarantor, the amount of such Guaranteed Obligations shall at all times be subordinate
as to lien, time of payment and in all other respects, to the amounts owing to Lender by
Borrower with regard to the subject property or any right to participate in any way
therein or in the right, title or interest of Lender in such property, all rights of subrogation
and participation being hereby expressly subordinated as aforesaid. Guarantor hereby
irrevocably and unconditionally waives all rights Guarantor may have, at law or in equity
to seek or claim subrogation (including any right of subrogation hereafter arising against
Borrower resulting from a right of contribution from any other Guarantor) contribution,
indemnification, or any other form of reimbursement from the Borrower or from any
other Guarantor by virtue of any payment(s) made to Lender under this Guaranty or
otherwise, until the Guaranteed Obligations are paid in full. Guarantor acknowledges
and agrees with Lender that if Lender shall at any time be required to return or restore
to Borrower or to any trustee in bankruptcy, any payment(s) made upon the Guaranteed
Obligations, this Guaranty shall continue in full force and effect or shall be fully
reinstated, as the case may be, and Guarantor's Guaranteed Obligations to Lender
under this Guaranty shall be increased by the amount of any such payment(s) upon the
Guaranteed Obligations as Lender shall be obliged to return or restore, plus interest
thereon at the rate provided in the evidence of Guaranteed Obligations applicable to
any such payment(s) from the date(s) the payment(s) upon the Guaranteed Obligations
was originally made. Guarantor agrees to indemnify and hold Lender harmless from
and against any and all costs, fees and expenses including, without limitation,
reasonable attorneys' fees and allocated costs of counsel, in connection with the
Lender's defending any preference or fraudulent conveyance claim or action brought
against Lender in any bankruptcy proceeding concerning Borrower or any Guarantor.
10. Guarantor's Financial Condition: Representations and
Warranties/Notice/Financial Statements. Guarantor represents, warrants and
covenants to Lender that, as of the date of this Guaranty: the fair salable value of
Guarantor's assets exceeds its known liabilities after giving effect to this Guaranty;
Guarantor is meeting its current liabilities as they mature; any financial statements of
Guarantor furnished Lender are true and correct and include in the footnotes thereto all
contingent liabilities of Guarantor; since the date of said financial statement there has
been no material adverse change in the financial condition of Guarantor; and there are
not now pending any material court or administrative proceedings or undischarged
judgments against Guarantor and no federal or state tax liens have been filed or
threatened against Guarantor, nor is Guarantor in default or claimed default under any
agreement for borrowed money, which will not be cured by payment from the proceeds
of the Loans as contemplated by the Construction Loan Agreement. Guarantor agrees
37
to immediately give Lender written notice of any material adverse change in its financial
condition, including but not limited to litigation commenced, tax liens filed, default
claimed under its indebtedness for borrowed money or bankruptcy proceedings
commenced by or against Guarantor. Guarantor shall deliver, timely to Lender, annual
financial statements as required by the Construction Loan Agreement and permit
Lender or its representatives to inspect at Guarantor's offices, its financial records and
properties and make extracts therefrom in order to evaluate the financial condition of
Guarantor. Guarantor is fully aware of the financial condition of the Borrower.
Guarantor delivers this Guaranty based solely upon its own independent investigation
and in no part upon any representation or statement of Lender with respect thereto.
Guarantor is in a position to and hereby assumes full responsibility for obtaining any
additional information concerning Borrower's financial condition as Guarantor may
deem material to its Guaranteed Obligations hereunder; and Guarantor is not relying
upon nor expecting Lender to furnish it any information in the Lender's possession
concerning Borrower's financial condition.
11. Lender's Rights and Obligations
(a) The Lender may from time to time take Collateral from Borrower to
secure the Guaranteed Obligations, and Guarantor agrees that Lender may, without
notice to or consent from Guarantor, release any Collateral now held, or hereafter
acquired, or substitute other Collateral, and no such action shall release or diminish the
Guaranteed Obligations of Guarantor hereunder. Lender has no duty to marshal
security, to sue, or otherwise attempt collection from Borrower or any other party, to
take proceedings against any Collateral it may have or any property, or to take any
action of any sort, prior to demanding and enforcing payments to Guarantor.
Specifically, but without limiting the foregoing, the Guarantor waives any right to have
Borrower joined in a suit brought against Guarantor on this Guaranty and also any right
to require Lender to sue Borrower on any Obligation guaranteed hereby as a
prerequisite to any action by Lender against Guarantor.
(b) Lender, at its option, and without notice, may apply to payment of the
Guaranteed Obligations the balance in any deposit, checking or savings account
maintained with Lender by any Guarantor or Borrower or any deposit evidenced by
certificate of deposit (whether or not matured) issued by Lender and held by any
Guarantor or Borrower. Any payment received by Lender from Borrower or from any
Guarantor or from any source may be applied to the Guaranteed Obligations in
whatever order Lender elects.
(c) The Lender shall have no obligation to protect, secure or insure any
property which secures the Guaranteed Obligations. Guarantor's Guaranteed
Obligations hereunder shall in no way be impaired, affected, reduced or released by
reason of (i) the Lender's failure or delay to do or take any of the acts described above
or (ii) the invalidity, unenforceability, loss or change in priority or reduction or loss of
38
value of any security interest in or lien or encumbrance on said property, (iii) the
cessation of the Borrower's obligation with respect to any part of the Guaranteed
Obligations by operation of law or otherwise, or (iv) the valuation for any purpose of any
property securing the Guaranteed Obligations in any bankruptcy or insolvency
proceedings.
12. Obligations of Guarantor on Default. If an Event of Default should
occur that is a failure by any party to pay or to perform any part of the Guaranteed
Obligations when due, the Guarantor shall, within five (5) business days after written
demand of Lender to Guarantor; (a) cure such failure to pay and/or commence to
perform the applicable part of the Guaranteed Obligations in which event the Guarantor
paying or performing same shall be entitled ( subject to the terms and provisions of (
(ii), and (iii) of this Section 13 then and thereafter to receive any Loan funds then
available therefore pursuant to the provisions of the Loan Agreement as if no Event of
Default had occurred; (b) diligently procure completion of the Improvements at
Guarantor's sole cost and expense; (c) fully pay and discharge all claims, including for
labor performed and material and services furnished in connection with the construction
of the Improvements, subject to the provisions of the Loan Documents; including the
right thereunder to contest such claims; and (d) pay Lender all reasonable attorneys
fees and costs I incurs in enforcing the performance or the payment of the Guaranteed
Obligations and interest at the Default Interest Rate on all past due portions of, and/or
sums Lender has advanced to satisfy portions of, the Guaranteed Obligations pursuant
to the Loan Agreement. Lender agrees that (i) in the event that and so long as
Guarantor is not in default of the terms, conditions, provisions, and obligations
hereunder beyond applicable grace periods; (ii) in the event that and so long as
Guarantor is timely paying or performing the Guaranteed Obligations as required herein
based on the written request of Lender and without the requirement of any legal
proceeding to enforce the same; and (iii) after Guarantor commences and diligently
continues to pay or perform a portion of the Guaranteed Obligations after written
request of the Lender, there is no further Event of Default by Borrower under the Loan
Agreement or failure by Guarantor in payment or performance of the Guaranteed
Obligations hereunder, Lender shall continue to advance any Loan funds then available
pursuant to the provisions of the Loan Agreement as if no Event of Default had occurred
and shall not institute foreclosure proceedings under the Mortgage or charge interest at
the Default Interest Rate under the Loan during the period after which the Guarantor
first pays or performs a portion of the Guaranteed Obligations after written request of
Lender and prior to the date that one of the conditions described in items (i), (ii), and (iii)
is no longer met. It is expressly understood and agreed that Lender may institute such
foreclosure proceedings and/or charge interest at the Default Interest Rate under the
Loan, notwithstanding Guarantor's compliance and timely performance hereunder,
should any Event of Default exist that is not cured promptly after (a) receipt by
Guarantor of written notice thereof, or (b) a written demand by Lender to Guarantor
pursuant to this Section 13.
39
13. Certain Additional Representations, Warranties and
Acknowledgements. Guarantors hereby represent, warrant and acknowledge that (a)
counsel of Guarantors' own choosing has advised Guarantors in the negotiation,
execution and delivery of this Guaranty, (b) Lender has no fiduciary relationship to
Guarantors, the relationship between them being solely that of debtor and creditor, (c)
no joint venture exists between Guarantors and Lender, and (d) Guarantors expect to
derive substantial benefits from the Loan. Lender may rely conclusively on the
continuing acknowledgment, representation and warranty, hereby made, that
Guarantors will be benefited by Lender's making of the Loan to Borrower, and Lender
shall have no duty to inquire into or confirm the receipt of any such benefits, and this
Guaranty shall be effective and enforceable by Lender without regard to the receipt,
nature or value of any such benefits.
14. Notices. All notices, requests, demands and consents to be made
hereunder to the parties hereto shall be in writing and shall be sent by registered mail or
certified mail, postage prepaid, return receipt requested, through the United States
Postal Service to the addresses shown below or such other address which the parties
may provide to one another in accordance herewith. Such notices, requests, demands
and consents shall be deemed given on the second Business Day after deposit in the
United States mail. As used herein, the term "Business Day" shall mean any day other
than a Saturday, Sunday or other day on which banks in the City and County of
Oakland, Michigan are authorized to close.
15. Limitation of Liability. Lender shall have no liability with respect to, and
guarantors hereby waive, release and agree not to sue for, (a) any loss or damage
sustained by Guarantors or any of them that may occur as a result of, in connection
with, or that is in any way related to, any act or failure to act by Lender with respect to
any matter referred to in this Guaranty, or (b) any special, indirect or consequential
damages suffered by Guarantors or any of them ion connection with any claim arising
under or related to this Guaranty or the relationship created thereby.
16. Miscellaneous.
(a) Loan Documents. The Loan Documents are hereby made a part
of this Guaranty by reference thereto, with the same force and effect as if fully set forth
herein.
(b) Guaranteed Obligations. No agreement exists between
Guarantor and Lender that the Guaranteed Obligations of Guarantor under this
Guaranty are or shall be other than as set forth herein. The rights and remedies of
Lender under this Guaranty are cumulative and may be exercised singly or
concurrently, and exercise of any one or more of them shall not be a waiver of any
other.
40
(c) Binding Effect/Joint and Several Liability. Each reference
herein to Lender shall be deemed to include its successors and assigns, in whose favor
the provisions of this Guaranty shall also run. The term "Guarantor" as used in this
Guaranty shall, if this instrument is signed by more than one party, mean the "Guarantor
and each of them, jointly, jointly and severally, and severally." In the event of the death
of the Guarantor, this Guaranty shall continue in effect against the estate of said
Guarantor. The pronouns and relative words herein used shall be read as if written in
the plural, feminine, masculine or neuter form so as to appropriately refer to the parties
designated.
(d) Liability Unconditional Each of the persons who has signed this
Guaranty has unconditionally delivered it to the Lender, and failure to sign this or any
other Guaranty by any other person shall not discharge the liability of any signer. The
unconditional liability of the signer applies whether it is jointly and severally liable for the
entire amount of the debt, or for only a pro-rata portion.
(e) No Oral Amendment. No amendment, waiver, change,
modification or discharge of this Guaranty or any of the Guaranteed Obligations created
hereby shall be effective unless signed by the Lender.
(f) Termination. Notwithstanding anything herein contained, this
Guaranty shall become null and void and the liability of the Guarantor terminated in the
event that the Construction Loan Agreement is terminated due to payment in full of the
Guaranteed Obligations and all other sums and payment which may be or become
owing under the Guaranteed Obligations, or elsewhere provided for herein, or in any of
the Loan Documents.
(g) Entire Agreement. This writing is intended by the parties as a final
expression of this guaranty agreement, and is intended as a complete and exclusive
statement of the terms of that agreement. No course of dealing, course of performance,
or trade usage, and no parol evidence of any nature, shall be used to supplement or
modify its terms. There are no conditions to the full effectiveness of this agreement,
other than default by the Borrower.
(h) Waiver of Jury Trial. Guarantor acknowledges that the right to
trial by jury is a constitutional right, but that the same may be waived. Guarantor, after
consultation (or having had the opportunity to consult) with counsel of its choice,
knowingly and voluntarily, hereby waives any right to trial by jury in the event of litigation
regarding performance or enforcement of, or in any way related to, this Guaranty.
(I)
State of Michigan.
Jurisdiction. This Guaranty shall be governed by the laws of the
(j) Counterparts. This Guaranty may be executed in several
41
counterparts, and each executed counterpart shall constitute an original instrument, but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the Guarantor hereto has caused these presents to be
executed all as of the day and year first above written.
Oscar E. Stefanutti, individually
SS#: 379-44-1082
STATE OF MICHIGAN )
) ss.
COUNTY OF
The foregoing instrument was executed before me, a Notary Public in and for the
above mentioned State and County, this day of , 2004 by Oscar E. Stefanutti, to
me known to be the person who executed the same and who acknowledged the
foregoing to be his free act and deed.
Notary Public, County
State of Michigan
My Commission Expires:
William N. Widmyer, individually
SS#: 277-30-0108
STATE OF MICHIGAN )
) ss.
COUNTY OF
The foregoing instrument was executed before me, a Notary Public in and for the
above mentioned State and County, this day of , 2004 by William N. Widmyer, to
me known to be the person who executed the same and who acknowledged the
foregoing to be his free act and deed.
Notary Public, County
State of Michigan
My Commission Expires:
42
Notary Public,
State of Michigan
County
Fred Gordon, individually
SS # 367-32-8932
STATE OF MICHIGAN )
) ss.
COUNTY OF
The foregoing instrument was executed before me, a Notary Public
above mentioned State and County, this day of , 2004 by
known to be the person who executed the same and who acknowledged
to be his free act and deed.
in and for the
, to me
the foregoing
Notary Public,
State of Michigan
My Commission Expires:
County
The Stefanutti Family Limited
Partnership,
A Michigan limited partnership
By: Stefanutti, LLC
A Michigan limited liability
company
Its: General Partner
By:
Oscar E. Stefanutti
Its: Authorized Member
STATE OF MICHIGAN )
) ss.
COUNTY OF
The foregoing instrument was executed before me, a Notary Public in and for the
above mentioned State and County, this day of , 2004 by Oscar E. Stefanutti, the
Authorized Member of Stefanutti, LLC, a Michigan limited liability company, the General
Partner of the Stefanutti Family Limited Partnership, a Michigan limited partnership, to
me known to be the person who executed the same and who acknowledged the
foregoing to be his free act and deed.
43
My Commission Expires:
REFCO, Inc.,
a Florida corporation
By:
Fred Gordon
Its: President
STATE OF MICHIGAN )
) ss.
COUNTY OF
The foregoing instrument was executed before me, a Notary Public in and for the
above mentioned State and County, this day of , 2004 by , to me
known to be the person who executed the same and who acknowledged the foregoing
to be his free act and deed.
Notary Public,
State of Michigan
My Commission Expires:
County
44
EXHIBIT E
MORTGAGE
COMMERCIAL SECOND MORTGAGE
The mortgagor, Brown Road Group, LLC, of 115 South Main Street, Suite 300,
Royal Oak, Michigan, makes this mortgage to the mortgagee, Oakland County, of 1200
N. Telegraph Road, Pontiac, Michigan, 48341, on February , 2004.
To secure
1. payment of the principal of $700,000 and interest, payable in installments, the
last of which is due by February , 2009, in accordance with the terms of a
promissory note issued by the mortgagor on this date;
2. the performance of the obligations under this mortgage and the payment of the
mortgagee's expenses for the performance of the obligations;
3. the mortgage debt and the mortgagor's obligations under any other loan
documents associated with this mortgage or the note;
the mortgagor mortgages and warrants to the mortgagee and its successors and
assigns the property in the City of Auburn Hills, Township of Orion, Oakland County,
Michigan, described as
PART OF THE NORTHEAST FRACTIONAL 1/4 OF SECTION 2, TOWN 3 NORTH, RANGE 10
EAST, CITY OF AUBURN HILLS, OAKLAND COUNTY, MICHIGAN, AND PART OF THE
SOUTHEAST FRACTIONAL 1/4 OF SECTION 35, TOWN 4 NORTH, RANGE 10 EAST, ORION
TOWNSHIP, OAKLAND COUNTY, MICHIGAN, DESCRIBED AS: BEGINNING AT THE
NORTHEAST CORNER OF SECTION 2; THENCE S. 01°-16'-34" E, 1953.02 FEET; THENCE
S 88°-43'-56" W, 544.50 FEET; S 01°-16'-34" E, 400.00 FEET; THENCE S 88°-43'-56" W,
808.07 FEET; THENCE N 00°-56'-51" W, 788.36 FEET; THENCE N 86°-22'-22" W 1234.73
FEET; THENCE S 03°-44'-14" W, 10.57 FEET; THENCE S 88°-15'-55" W, 32.03 FEET TO A
POINT ON THE EASTERLY LINE OF LAPEER ROAD NORTH 1498.72 FEET AND EAST
83.89 FEET FROM CENTER OF SECTION CORNER OF SECTION 2; THENCE, N 00°-32'-55"
E, 298.60 FEET; THENCE, N 00°-09'-05" W, 406.63 FEET; THENCE N 00°-53'-05" W, 400.00
FEET; THENCE S 89°-22'-55" W, 91.42 FEET TO A POINT ON THE CENTER OF SECTION 2;
THENCE N 00*-37'-05" W, 376.90 FEET ALONG THE CENTER OF SECTION 2 TO THE
NORTH 1/4 CORNER OF SECTION 2; THENCE N 89°-00'-21" E, 98.87 FEET TO A POINT
DISTANT N 89°-00'-21" E, 33.27 FEET FROM THE SOUTH 1/4 CORNER OF SECTION 35;
THENCE N 00°-16'-57" W, 384.78 FEET; THENCE N 88°-48'-33" E, 209.21 FEET; THENCE N
12°-36'-36" E, 283.66 FEET; THENCE N 02°-01'-17" W, 101.13 FEET; THENCE N 88°-48'-33"
E, 1554.35 FEET; THENCE ALONG A CURVE TO THE RIGHT, RADIUS 340.00 FEET,
CHORD BEARS S 60°-55'-35" E, 342.72 FEET, DISTANCE OF 359.19 FEET; THENCE S 30°-
39'-42" E, 183.24 FEET; THENCE ALONG A CURVE TO THE LEFT, RADIUS 360.00 FEET,
CHORD BEARS S 38°-22'-41" E, 96.67 FEET, DISTANCE OF 96.96 FEET; THENCE S 00°-
59'-41" E, 359.82 FEET TO A POINT ON THE SOUTH LINE OF SECTION 35; THENCE N 89°-
00'-21" E, 300.00 FEET ALONG THE SOUTH LINE OF SECTION 35 TO THE POINT OF
BEGINNING.
46
along with the following:
1. all easements, rights-of-way, licenses, and privileges pertaining to the mortgaged
premises, including all the mortgagor's rights and interests in those easements,
rights-of-way, licenses, and privileges, as described in exhibit A, which is
attached and made a part of this mortgage
2. all buildings and improvements now or later on any part of the mortgaged
premises
3. any tenements, hereditaments, and appurtenances pertaining to the mortgaged
premises and any reversions or remainders and also all the mortgagor's rights
and interests in them
4. all the rent and issues from present or future leases of the mortgaged premises
that are specifically assigned and transferred to the mortgagee, including all
rights conferred by MCLA 554.231 et seq., MSA 26.1137(1) et seq. and MCLA
554.211 et seq., MSA 26.1131 et seq.
5. all the mortgagor's rights and interests in the land lying in the bed of any street,
whether opened, proposed, or vacated, or in any strip or gore adjoining the
mortgaged premises
6. all equipment, fixtures, and personal property, other than consumable goods,
now or later on any part of the mortgaged premises and usable in any present or
future operation of the mortgaged premises or any buildings now or later on the
mortgaged premises and now or later acquired by the mortgagor, including all
fixtures and equipment for lighting, heating, cooling, ventilating, air-conditioning,
incinerating, refrigerating, plumbing, sprinkling, communicating, and electrical
systems, and all the mortgagor's rights and interests in any equipment that might
be subject to any title retention or security agreement superior in lien to the lien
of this mortgage (the parties agree that all such equipment and property is part of
the mortgaged premises subject to this mortgage unless the mortgagee deems
otherwise)
7. any awards or payments, including interest, and the right to receive them, that
might be made with respect to the mortgaged premises as a result of (a) the
exercise of the right of eminent domain; (b) the alteration of the grade of any
street; (c) any damage to any improvement on the mortgaged premises; (d)any
other injury to or decrease in the value of the mortgaged premises; or (e) any
refund of real estate taxes, assessments, or other charges levied on the
mortgaged premises, to the extent of all amounts secured by this mortgage when
the mortgagee receives the award or payment and of the reasonable counsel
fees, costs, and disbursements incurred by the mortgagee to collect such an
award or payment (the mortgagor agrees to sign and give any documents that
the mortgagee requests to confirm this assignment)
The mortgagor also warrants as follows:
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1. The payment of the mortgage indebtedness and the performance of agreements.
The mortgagor shall pay the principal and interest of the mortgage debt
according to the provisions of the mortgage and perform all its obligations under
(a) the note or any other promissory notes later issued for the mortgage debt, (b)
this mortgage, and (c) any other loan documents.
2. Promises regarding title. The mortgagor has good title to the entire mortgaged
premises except as noted below in fee simple with the right to sell, mortgage,
and convey the mortgaged premises. The mortgaged premises has a first
mortgage in favor of Huntington National Bank dated June 7, 2002 in the
principle amount of approximately $24,000,000. This commercial second
mortgage is subordinate to this first mortgage and any renewal, expansion or
replacement of that mortgage. The premises will otherwise remain free of all
easements, restrictions, liens, leases, and encumbrances except those that this
mortgage specifies. The mortgagor will defend the mortgaged premises against
all lawful claims and demands. The mortgagee may take any action it thinks is
necessary to defend its lien, to enforce its rights, and to secure the performance
of the borrower's obligation under this mortgage, including the lender's right to
institute appropriate legal proceedings.
3. The payment of taxes, assessments, and charges. The mortgagor shall pay
when due, and before any interest, collection fees, or penalties accrue, all real
estate taxes, special assessments, water and sewer charges, and other
governmental charges levied on any part of the mortgaged premises. If the
mortgagor fails to pay any governmental charges, the mortgagee may pay them.
4. Reserves for taxes and insurance premiums. If the mortgagee requests, the
mortgagor shall pay, with the installments of principal and interest, installments
for taxes and assessments on the mortgaged premises and for insurance
premiums. The tax and insurance installments shall be substantially equal and be
sufficient to pay the taxes and premiums at least 30 days before they become
due. These amounts need not be kept separate from other payments to the
mortgagee, and no interest shall be payable on these amounts. The mortgagee
shall hold these amounts as additional security for the mortgage debt and shall
use them to pay taxes and premiums when the taxes and premiums become
due. However, the mortgagee shall have no liability for any failure to apply the
amounts. Nothing in this mortgage shall limit the obligation of the mortgagor to
pay taxes. If the mortgagor defaults, the mortgagee may apply the tax and
premium amounts to the taxes and premiums or toward any part of the mortgage
debt, whether or not they are due.
5. The payment of other debts. The mortgagor shall also pay any other debts that
may become encumbrances on the mortgaged premises, including debts for
current or future repairs or improvements and for merchandise, services, and
utilities for the mortgaged premises. The mortgagor shall not permit any
encumbrance securing the repayment of borrowed funds (including the deferred
purchase price for the property) to accrue and remain outstanding against any
48
part of the mortgaged premises or any improvements.
Maintenance, repair, and inspection. The mortgagor will keep the mortgaged
premises and all the improvements in good repair. The mortgagor will not permit
waste on the mortgaged premises or do anything that would decrease the value
of the mortgaged premises or impair the lien on the mortgaged premises. If the
mortgagor does not make necessary repairs, the mortgagee may make such
repairs for the mortgagor. The mortgagee or anyone authorized by the
mortgagee may enter and inspect the mortgaged premises at all reasonable
times.
7. Insurance.
a. The mortgagor shall keep the buildings and other improvements now or
later on the mortgaged premises constantly insured for the benefit of the
mortgagee until the mortgage debt, all interest on the debt, and all
amounts due under this mortgage are fully paid. The insurance coverage
must include fire and other risks customarily covered by the standard form
of extended coverage endorsement available in Michigan, including risks
of vandalism and malicious mischief; flood insurance if the mortgaged
premises are in an area that the U.S. Department of Housing and Urban
Development considers a flood risk area or that is subject to 42 USC 4001
et seq.; rent insurance; war risk insurance (if available); and other
appropriate insurance that the mortgagee requires, in amounts, forms, and
with companies that are satisfactory to the mortgagee.
b. All such policies shall include standard loss payable clauses in favor of the
mortgagee and shall provide that the policy may not be canceled without
30 days' written notice to the mortgagee.
c. If the mortgagor fails to insure the premises, fails to pay the premiums, or
fails to give the policies or renewals to the mortgagee, the mortgagee may
obtain or renew the insurance and pay the premiums for the mortgagor.
d. In the event of loss or damage, the proceeds of the insurance shall be
paid only to the mortgagee. No such loss or damage shall reduce the
mortgage debt. The mortgagee is authorized to adjust any loss without
consent from the mortgagor, to receive payments for losses in the name of
the mortgagee and the mortgagor, and to endorse the mortgagor's name
on any check in payment for losses. The mortgagee may apply such
proceeds first to its expenses for collecting the proceeds and then to the
mortgage debt or to repair or rebuild the mortgaged premises. No
application of proceeds to the mortgage debt shall reduce the amount of
the installment payments under the note.
e. In the event of a foreclosure of this mortgage, the purchaser of the
mortgaged premises shall have all of the rights of the mortgagor under the
insurance policies, including the right to unearned premiums and the right
49
to receive the proceeds of any insurance payable because of loss.
8. Eminent domain. Notwithstanding any taking under the power of eminent
domain, alteration of the grade of any street, or other decrease in value of the
mortgaged premises by public or quasi-public authority, the mortgagor shall
continue to pay the mortgage debt under the note. The mortgagor assigns the
entire proceeds of any such award or payment to the mortgagee. The mortgagee
may apply such proceeds first to its expenses for collecting the proceeds and
then to the mortgage debt or to the alteration, restoration, or rebuilding of the
mortgaged premises. No application of proceeds to the mortgage debt shall
reduce the amount of the installment payments under the note. Any reduction in
the principal that results from such proceeds shall take effect only when the
mortgagee receives the proceeds.
9. Waste. The failure of the mortgagor to pay taxes or assessments assessed
against the mortgaged premises or insurance premiums for a policy covering the
mortgaged premises shall be waste, as provided by MCLA 600.2927, MSA
27A.2927. The mortgagor consents to the appointment of a receiver if the
mortgagee seeks relief under the statute.
10. Reimbursement for advances by the mortgagee. The mortgagor shall pay to the
mortgagee, on demand, all sums the mortgagee spends
a. to pay taxes, assessments, water and sewer charges, other governmental
charges, or insurance premiums for the mortgaged premises;
b. to maintain, repair, or improve the mortgaged premises, whether spent by
the mortgagee or a receiver who is appointed at the request of the
mortgagee, unless the sums are paid from the rent and profits from the
mortgaged premises;
c. to defend the lien of this mortgage against the mortgaged premises
subject only to the encumbrances stated in this mortgage;
d. to discharge any encumbrance against the mortgaged premises that is
superior to the lien of this mortgage and to which this mortgage is not
expressly subordinate;
e. to cure any default of the mortgagor under any lease or other agreement
for the mortgaged premises;
f. to cure any default of the mortgagor under this mortgage or the loan
documents; or
to preserve the security of this mortgage or any other security for the
mortgage debt or to protect any of the mortgagee's rights under this
mortgage. All such expenditures, including reasonable attorney fees, shall
be payable on demand, shall be secured by this mortgage, and shall bear
interest at the default rate stated in the note for the mortgage debt,
including any penalty interest.
g.
50
11. Change in taxes. The mortgagor shall promptly pay any taxes for the execution
and delivery or recording of this mortgage or any note or other document for the
mortgage debt or the mortgagee's interest in the mortgaged premises. The
mortgagor shall indemnify the mortgagee against any liability for any such tax. If
any law is passed in Michigan after the date of this mortgage that directly or
indirectly changes how this mortgage or the note is taxed, the holder of this
mortgage may declare the entire unpaid amount of the mortgage debt and
accrued and unpaid interest to be due on a specified date not less than 30 days
after the mortgagor receives written notice. However, the holder of the note may
not do that if the mortgagor is permitted by law to pay the whole tax in addition to
other payments required under the mortgage and the mortgagor, before the
specified date, pays the tax then due and agrees to pay any such tax later
assessed against the mortgaged premises, this mortgage, or the note.
12. Defaults. The following events are defaults under this mortgage that entitle the
mortgagee to exercise its remedies under this mortgage and the other loan
documents and remedies provided by law:
a. The mortgagor defaults on payments for principal or interest of the
mortgage debt.
b. The mortgagor defaults on its obligations under this mortgage.
c. The mortgagor makes any materially false warranty in this mortgage or
any of the loan documents.
d. The mortgagor defaults on its obligations under any other loan documents
and does not cure the default within the grace period.
e. Bankruptcy or similar proceedings are instituted by or against the
mortgagor, or a receiver or a trustee is appointed for the mortgagor or for
any part of the mortgaged premises.
13. Remedies on default. If a default occurs under this mortgage, the mortgagee may
take any of the following actions:
a. The mortgagee may declare the unpaid balance of the mortgage debt,
accrued and unpaid interest, and all charges that the mortgagor must pay
to the mortgagee under the loan documents immediately due and, at the
mortgagee's option,
(1) file a suit for those amounts, or
(2) file a suit for any delinquent payment of the mortgage debt, or
b. The mortgagee may obtain a receiver to manage the mortgaged premises
and to collect the rent and income from them.
14. Successors in ownership. If ownership of any part of the mortgaged premises
becomes vested in any parties other than the mortgagor without written approval
from the mortgagee, the mortgagee may deal with such successors as the
51
mortgagor under this mortgage and the loan documents without affecting the
mortgagor's liability under this mortgage or for the mortgage debt.
15. Warranties concerning personal property. Except for equipment owned by
tenants of the mortgaged premises, the mortgagor warrants that it owns all
equipment and other personal property described in this mortgage free of any
liens and security interests except for the lien and security interest granted by
this mortgage. The mortgagor also warrants it will own all equipment and other
personal property that it acquires in the future and brings onto the mortgaged
premises free of any liens and security interests except for the lien and security
interest granted by this mortgage and by any other security agreement delivered
to the mortgagee.
16. Security interest. This mortgage grants a security interest under the Uniform
Commercial Code in any equipment and other personal property covered by the
mortgage. If the mortgagee requests, the mortgagor will inventory its personal
property that is subject to this mortgage and sign any supplements to this
mortgage, any separate security agreements, and any financing statements
necessary to include all the personal property. If a default under provision 12
occurs, the mortgagee's rights include the right to require the mortgagor to
assemble this personal property and to make it available to the mortgagee at a
location that the mortgagee designates that is reasonably convenient for both
parties; the right to take possession of the personal property, with or without
demand and with or without process of law; and the right to sell it and to
distribute the proceeds according to law. Any requirement of reasonable notice
shall be met if the mortgagee sends the notice to the mortgagor at least five days
before the date of the sale or other event giving rise to the required notice. The
mortgagee may apply the proceeds of any disposition of such personal property
first to the reasonable expenses in connection with the disposition of the personal
property, including reasonable attorney fees and legal expenses, and then to the
mortgage debt.
17. The assignment of leases and rent. On the date of this mortgage, as security in
addition to the property described in this mortgage during the term of this
mortgage, the mortgagor assigns to the mortgagee all the mortgagor's rights and
interests in all written and oral leases, current or future, for any part of the
mortgaged premises. This assignment is subordinated to that provided to the first
mortgage holder which has priority. However, the mortgagee does not assume
any of the mortgagor's liabilities under any leases by this assignment. The
mortgagor also assigns to the mortgagee the rent and profits from the mortgaged
premises. If a default occurs under this mortgage or the note for the mortgage
debt, the mortgagee may collect the rent and profits, personally or through a
receiver, as long as the default exists, during the pendency of any foreclosure
proceedings, and during any redemption period. The mortgagor consents to a
receivership if the mortgagee thinks it is necessary or desirable to enforce its
rights under this provision. The mortgagee shall be entitled to all the rights
52
conferred by MCLA 554.231 et seq., MSA 26.1137(1) et seq. and MCLA 554.211
et seq., MSA 26.1131 et seq.
18. Other liens. The mortgagor shall agree to any lien, mortgage, security interest, or
sale and leaseback transaction for any part of the mortgaged premises.
19. Separability. If any provision of this mortgage conflicts with any Michigan law or
is otherwise unenforceable, that provision is void to the extent of the conflict or
unenforceability and is severable from and does not invalidate any other
provisions of this mortgage.
20. Waiver. No waiver by the mortgagee of any right or remedy granted under this
mortgage or failure to insist on strict performance of the mortgagor's obligations
under this mortgage shall affect any other right or remedy of the mortgagee or
any subsequent exercise of the same right or remedy of the mortgagee under
this mortgage. All such rights and remedies of the mortgagee are cumulative.
21. Marshaling. If the mortgagee forecloses on this mortgage or enforces any other
rights and remedies under the mortgage, the mortgagor waives any right
otherwise available to marshal assets that secure the mortgage debt or to require
the mortgagee to pursue its remedies against any other such assets.
22. Notice and hearing on foreclosure. The mortgagor waives all rights to a hearing
before a sale in connection with any foreclosure of this mortgage by
advertisement and all rights to notice requirements except as stated in the
Michigan statute for foreclosure by advertisement.
23. Other documents. The mortgagor shall immediately sign, acknowledge, and give
any other documents and do anything else that the mortgagee reasonably
requires to confirm and protect the lien of this mortgage or to accomplish the
purpose of this mortgage when the mortgagee requests.
24. Notices. Any notice that the mortgagee mails under this mortgage shall be
effective when they are sent registered mail, postage prepaid, to the mortgagor
at the address given at the beginning of this mortgage or at another address that
the mortgagor gives to the mortgagee in writing.
25. Governing law and binding effect. This mortgage shall be construed under
Michigan laws and binds the mortgagor and its successors and assigns and any
subsequent owners of the mortgaged premises. All of the promises in this
mortgage run with the land. This mortgage benefits the mortgagee and its
successors and assigns.
26. Headings. The headings in this mortgage are for convenience of reference only
and shall not affect the meaning of this mortgage.
53
WITNESSES FOR THE BORROWER:
BROWN ROAD GROUP, LLC
By:
Fred Gordon
Manager
Dated:
STATE OF MICHIGAN )
COUNTY OF OAKLAND )
This document was acknowledged before me on by on
behalf of the Brown Road Group, LLC.
Notary Public, Oakland County, MI
My Commission Expires:
Drafted by and when recorded return
to:
54
EXHIBIT F
WORK PLAN
NOTE: Work Plan to be completed upon further environmental investigation, project
costing and subject to Oakland County approval and oversight as described in Sections
1.01, 1.04, 1.09, 1.11 & 1.12. No loan proceeds will be disbursed until the Work Plan is
completed and approved by all parties.
55
G. William Caddell, County Clerk
Resolution #04166 July 22, 2004
Moved by Scott supported by Knollenberg the resolutions on the Consent Agenda be adopted (with
accompanying reports being accepted).
AYES: Coleman, Coulter, Douglas, Gregory, Hatchett, Jamian, Knollenberg, KowaII, Law, Long,
McMillin, Middleton, Moffitt, Moss, Palmer, Patterson, Potter, Rogers, Scott, Suarez, Webster,
Wilson, Zack, Bullard. (24)
NAYS: None. (0)
A sufficient majority having voted therefore, the resolutions on the Consent Agenda were adopted (with
accompanying reports being accepted).
STATE OF MICHIGAN)
COUNTY OF OAKLAND)
I, G. William Caddell, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true
and accurate copy of a resolution adopted by the Oakland County Board of Commissioners on July 22, 2004
with the original record thereof now remaining in my office.
In Testimony Whereof, I have hereunto set my hand and affixed the seal of the County of Oakland at
Pontiac, Michigan this 22nd day of July, 2004.