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EXHIBIT 10.39
CROSS REFERENCE NUMBERS: 199673 IN LIBER 23180, PAGE 242 (OAKLAND
COUNTY)
199674 IN LIBER 23180, PAGE 279 (OAKLAND COUNTY)
91366ST, 2001-95016-1032, D808364 AND C359571
(UCC'S - SECRETARY OF STATE)
200086 IN LIBER 23183, PAGE 290 AND 080291 IN LIBER
11393, PAGE 1 (UCC'S - OAKLAND COUNTY)
IDS Life Insurance Company
Loan #694-001231
ASSUMPTION AND MODIFICATION AGREEMENT
Property Address: 28819 Franklin Road
Southfield, Michigan 48034
Tax Parcel Identification Number: 24-18-201-053
Prepared by and after
recording, return to:
Michael D. Moriarty, Esq.
Locke Reynolds LLP
201 North Illinois Street
Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
(317)237-3800
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THIS ASSUMPTION AND
MODIFICATION AGREEMENT ("Agreement") is made effective
as of August 18, 2005 (the "Effective Date"), by and among IDS LIFE
INSURANCE
COMPANY, a Minnesota corporation ("Lender"), whose address is c/o
RiverSource
Investments, LLC, Real Estate Loan Management, 25540 Ameriprise
Financial
Center, Minneapolis, Minnesota 55474; NORTHWESTERN ZODIAC LIMITED
PARTNERSHIP, a
Michigan limited partnership ("Transferor"), whose address is c/o
S. James
Clarkson, 153 Muirfield Circle, Naples, Florida 34113; NORTH POINTE
FINANCIAL
SERVICES, INC., a Michigan corporation ("Transferee"), whose
address is 28819
Franklin Road, P.O. Box 2223, Southfield, Michigan 49037-2223,
Attention: B.
Matthew Petcoff, and S. JAMES CLARKSON, individually ("Original
Guarantor"),
whose address is 153 Muirfield Circle, Naples, Florida 34113.
RECITALS:
A.
Transferor is or was the owner of certain real and personal
property
(the "Property") located in the City of Southfield, Oakland County,
Michigan,
more fully described on EXHIBIT "A" attached hereto and by this
reference,
incorporated herein, which Property is encumbered or affected by,
among other
things: (i) that certain Amended and Restated Mortgage and Security
Agreement
and Fixture Financing Statement with Assignment of Leases and Rents
(the
"Mortgage"), from Transferor, as mortgagor, to Lender, as
mortgagee, dated as of
June 20, 2001, and recorded July 3, 2001 as DOCUMENT NO. 199673 in
LIBER 23180,
PAGE 242 in the Office of the Oakland County Clerk/Register of
Deeds; (ii) that
certain Amended and Restated Assignment of Leases and Rents (the
"Assignment of
Leases"), from Transferor, as assignor, to Lender, as assignee,
dated June 20,
2001, and recorded July 3, 2001 as DOCUMENT NO. 199674 in LIBER
23180, PAGE 279
in the Office of the Oakland County Clerk/Register of Deeds; (iii)
Form UCC-3
Financing Statement showing Transferor as debtor and Lender as
secured party, as
filed with the Michigan Secretary of State's Office on August 17,
2001 as FILE
NO. 91366ST and 2001-95016-1032 and FILE NO. D808364 (with regard
to UCC
Financing Statement FILE NO. C359571 with a file date of May 31,
1990); and (iv)
Form UCC-3 Financing Statement showing Transferor as debtor and
Lender as
secured party, as filed with the Oakland County Clerk/Register of
Deeds on July
3, 2001 as FILE NO. 200086 in LIBER 23183, PAGE 290 (with regard to
UCC
Financing Statement FILE NO. 080291, in LIBER 11393, PAGE 1, with a
file date of
May 25, 1990) (FILE NOS. 91366ST, 2001-95016-1032, D808364,
C359571, 200086 in
LIBER 23183, PAGE 290, and 080291 in LIBER 11393, PAGE 1
hereinafter
individually and collectively, the "UCC-1 Financing Statements").
The Mortgage,
the Assignment of Leases and Rents and the UCC-1 Financing
Statements are
sometimes hereinafter collectively referred to as the "Security
Documents." In
addition to the Security Documents, the following documents were
entered into
and delivered in connection with the original Loan (as defined
hereafter) which
is subject to this Agreement: (v) that certain Hazardous Materials
or Wastes
Indemnity Agreement (the "Original Indemnity Agreement"), from
Transferor and
Original Guarantor to Lender, dated June 20, 2001; and (vi) that
certain
Guaranty Agreement (the "Original Guaranty") from Original
Guarantor to Lender,
dated as of June 20, 2001. The Original Indemnity Agreement and the
Original
Guaranty are sometimes hereinafter collectively referred to as the
"Ancillary
Documents."
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B.
Lender is the holder for value of that certain Amended and
Restated
Promissory Note dated June 20, 2001, made by Transferor, to the
order of Lender,
in the original principal sum of Two Million Eight Hundred Thousand
and 00/100
Dollars ($2,800,000.00) (the "Note"), which evidenced a loan (the
"Loan") in the
original principal sum of Two Million Eight Hundred Thousand and
00/100 Dollars
($2,800,000.00) from Lender to Transferor. The Note, the Security
Documents and
the Ancillary Documents are sometimes hereinafter collectively
referred to as
the "Loan Documents."
C.
The Note is secured by the Security Documents, the Original
Indemnity
Agreement and the Original Guaranty.
D.
All of the partnership interests in Transferor have been or upon
the
execution and subsequent closing of this Agreement are herewith
being
transferred to Transferee, at which time Transferor will cease to
exist as a
legal entity under Michigan law, and thus Transferee at such time
will succeed
to title to the Property subject to, and without assumption of, the
Loan
Documents.
E.
Transferor, Transferee, and Original Guarantor have requested
Lender's
consent to the transfer of the partnership interests in Transferor
to
Transferee, and as a result, the transfer of the Property to
Transferee and the
assumption by Transferee of the Loan and the Loan Documents, as
modified hereby
and as provided herein, and Lender's agreement to certain
modifications to the
Loan Documents, and Lender has agreed to so consent and modify
certain
provisions of the Loan Documents upon the terms and conditions set
forth in this
Agreement and that certain letter Consent to Transfer/Assumption
from Lender to
Partnership Transferor dated March 25, 2005, as accepted by
Transferor (the
"Commitment"), provided that, among other things:
1.
Transferee enters into this Agreement and, as provided herein,
expressly assumes certain obligations of Transferor under the
Loan
Documents;
2. Transferee executes and delivers to Lender contemporaneously
herewith a certain Hazardous Materials or Wastes Indemnity
Agreement (the
"New
Indemnity Agreement") in favor of Lender;
3. Original Guarantor reaffirms its continuing liability for
certain
of
Transferor's and Original Guarantor's obligations under the
Loan
Documents pursuant to the terms, conditions and covenants of the
Commitment
and
this Agreement.
F.
Transferee is willing to so enter into this Agreement and so assume
the
Loan and the Loan Documents, as modified hereby and as provided
herein and
Transferor, Transferee and Original Guarantor are willing to so
execute and
deliver said new agreements or confirm their continuing liability
for
obligations under the Loan Documents, as in each case required by
Lender, as set
forth herein.
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NOW,
THEREFORE, in order to induce Lender to give its consent to the
herein
described transfer of the partnership interests in Transferor to
Transferee, and
thus, the transfer of the Property to Transferee and the assumption
of the Loan
and the Loan Documents by Transferee, to modify certain provisions
of the Loan
Documents and enter into this Agreement, and to agree to such other
matters as
provided herein, and for the mutual covenants of the parties hereto
and in
consideration of the foregoing and other good and valuable
consideration, the
receipt and sufficiency of which is hereby acknowledged by the
parties hereto,
the parties do hereby, jointly and severally, agree, or consent, as
the case may
be, as of the Effective Date, as follows:
1.
The Recitals set forth in the beginning of this Agreement are true
and
accurate and are hereby incorporated as a material part of this
Agreement.
2.
The Mortgage shall be and hereby is amended and modified as
follows:
Section 2.10 TRANSFER PERMITTED on pages 10, 11 and 12 is deleted
in its
entirety.
3.
Transferee hereby assumes and agrees to pay, perform, observe and
be
bound by the Note, the Mortgage and the other Loan Documents
(except the
Original Indemnity Agreement and the Original Guaranty), as amended
and modified
hereby, and all the terms, conditions, covenants, and agreements,
stipulations,
representations, warranties, obligations and liabilities thereunder
and
hereunder accruing and arising upon and after the Effective Date,
and those
under the New Indemnity Agreement (collectively, the
"Obligations"), as if
Transferee had executed the Note, the Mortgage and the other Loan
Documents
(except the Original Indemnity Agreement and the Original Guaranty)
originally
as, and upon and subject to the same terms and conditions as,
Transferor; and
the Note, the Mortgage and the Loan Documents (except for the
Original Indemnity
Agreement and the Original Guaranty) shall be and hereby are
amended and
modified as if Transferee were Transferor thereunder and as if
Transferee had
originally executed and delivered the Loan Documents as and in the
capacity of
Transferor (except for the Original Indemnity Agreement, the
Original Guaranty
and Original Guarantor's liability for Continuing Original
Guarantor
Obligations, as defined in paragraph 4 below, for which Transferee
neither
assumes nor otherwise shall have any liability or obligation).
Transferee
represents to Lender that Transferee possesses and has carefully
reviewed
complete and accurate copies of this Agreement, the Note, the
Mortgage, the New
Indemnity Agreement and the Loan Documents.
4.
Each and all of those matters set forth and described in the
Loan
Documents, including, without limitation, those matters which are
the subject of
the indemnification provided under Article 9 of the Mortgage and
under the
Original Indemnity Agreement, in each case to the extent that any
such matter or
matters either arose before the Effective Date or arise upon or
after the
Effective Date as a result, directly or indirectly, partially or
wholly, of
occurrences or events prior to the Effective Date; those matters
which are the
subject of the indemnification provided under the Original
Indemnity Agreement,
and those matters which are the subject of the Original Guaranty
and any matter
arising out of the fraud or intentional misrepresentation of the
Transferor or
Original Guarantor, to the extent that any or all of foregoing
matters either
arose before the Effective Date or arise upon or after the
Effective Date as a
result, directly or
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indirectly, partially or wholly, of occurrences or events prior to
the Effective
Date, shall be hereinafter referred to individually and
collectively as
"Continuing Original Guarantor Obligations." Except for Continuing
Original
Guarantor Obligations, Lender does hereby, as of the Effective
Date, forever
release and discharge Original Guarantor, from any and all claims,
demands,
controversies, actions, causes of action, obligations, liabilities,
costs,
expenses, attorney's fees and damages of whatsoever character,
nature and kind,
at law or in equity, arising from or related to the Property, the
Loan and the
Loan Documents, including without limitation, Original Guarantor's
obligations
under the Original Indemnity Agreement and the Original Guaranty
(collectively,
"Released Guarantor Liabilities") and Original Guarantor does
hereby assume,
reaffirm and ratify to Lender Original Guarantor's continuing
liability and
responsibility for all of such Continuing Original Guarantor
Obligations. It is
the intention of Lender, Transferor, and Original Guarantor that
the foregoing
release shall be effective as a bar against Lender to all Released
Guarantor
Liabilities.
5.
Transferor, Transferee and Original Guarantor agree, each as to
itself
or himself, or as to any and all of its or his acts and deeds, as
the case may
be, that (a) this Agreement, the New Indemnity Agreement and the
Loan Documents,
as amended and modified hereby and to which the foregoing such
parties are a
party, respectively as may be applicable, are valid and binding
agreements
enforceable by Lender against it or him, as the case may be, in
accordance with
their respective terms, without right of offset, defense or
counterclaim
thereto; (b) the Security Documents, as amended and modified
hereby, create a
continuing first lien against, and security interest in, the
Property,
including, without limitation, the rents, issues, profits and
proceeds, securing
a monetary obligation, subject to no other encumbrances, except
current taxes
and assessments, if any, which may constitute a lien against the
Property, but
which are not due and payable at the present time, and such other
exceptions as
may be agreed to in writing by Lender (and/or reflected in Lender's
Loan Policy
of Title Insurance issued in connection with the Loan to Transferor
and the
endorsements to be issued thereto in connection herewith); (c)
except as
expressly provided herein, this Agreement shall not modify any of
the Loan
Documents or any other documentation in connection with the Note;
(d) all of the
property, both real and personal, described in the Security
Documents shall
remain in all respects subject to the lien, security interest or
charge thereof;
(e) nothing herein contained, and nothing done pursuant hereto, (i)
shall affect
or shall be construed as affecting the liens, security interests or
charges of
the Security Documents (as amended), or the priority thereof over
other liens or
charges, (ii) is intended to release or affect the liability of any
party or
parties who may now or hereafter be liable under or on account of
the New
Indemnity Agreement, and the Loan Documents, as amended and
modified hereby,
including, without limitation, Transferee and Original Guarantor,
except as may
otherwise be expressly provided therein or herein, or (iii) shall
be construed
as affecting any other collateral or security, if any, held by
Lender as
security for, or as further evidence of, the indebtedness evidenced
by the Note
and the Loan Documents; (f) Transferor, Transferee and Original
Guarantor have
no defenses or offsets against the indebtedness evidenced by the
Note and the
Loan Documents, as amended and modified hereby; (g) nothing
contained herein
shall alter, waive, amend, vary or affect any provision, condition
or covenant
contained in the Loan Documents, nor affect or impair any rights,
powers or
remedies as contained and set forth in the Loan Documents, except
as expressly
modified hereby, it being the intent of all parties that the Loan
Documents, as
amended and modified hereby are hereby
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confirmed and ratified by the respective parties to each such Loan
Document in
all respects as of the Effective Date; and (h) Transferor,
Transferee and
Original Guarantor have disclosed all material financial
information relating to
such respective party, and have disclosed all material facts
relating to the
Property.
6.
Original Guarantor, notwithstanding: (a) the transfer of the
Property
from Transferor to Transferee; (b) the assumption by Transferee of
the Note, the
Mortgage and the Loan Documents (except the Original Indemnity
Agreement and the
Original Guaranty), as amended and modified hereby, and the
execution and
delivery to Lender of the New Indemnity Agreement by Transferee;
and (c) the
modification of the Loan Documents as provided herein, hereby (i)
reaffirms and
ratifies Original Guarantor's continuing liability and
responsibility for the
Continuing Original Guarantor Obligations, and (ii) acknowledges
and agrees that
Original Guarantor shall remain personally and primarily liable,
jointly and
severally, with respect to the Continuing Original Guarantor
Obligations, it
being the express intention of Original Guarantor that Original
Guarantor's
liability under and for the Continuing Original Guarantor
Obligations is and
shall be that of a primary obligor and not that of a surety or
guarantor, and in
the event that Original Guarantor's liability is deemed to be that
of a surety
or guarantor, Original Guarantor hereby waives all defenses of a
surety or
guarantor, and agrees that Lender shall not be required to resort
to any other
remedy or security which it may have, including, without
limitation, the
Property, before seeking to enforce its remedies against Original
Guarantor.
7.
Transferee acknowledges that Transferee is or will be the successor
in
interest to Transferor under the Loan Documents to which Transferor
is a party
(except the Original Indemnity Agreement and the Original
Guaranty), as amended
and modified hereby, and upon such event, Transferee, in addition
to its
liability to Lender pursuant to the other provisions of this
Agreement and the
New Indemnity Agreement, shall be liable, and Transferee does
hereby reaffirm
and ratify its liability and responsibility to Lender for, the
Obligations,
subject, however, to any limitation of liability provisions set
forth in the
Loan Documents, as amended and modified hereby.
8.
Transferor hereby represents and warrants to Lender, as
follows:
(a) Transferor is a limited partnership, duly formed and
validly
existing under the laws of the State of Michigan, with the
requisite
limited partnership power and authority to execute, deliver and
perform the
obligations of Transferor under this Agreement and to consummate
the
transactions contemplated hereunder and incident hereto; and
further, the
sole
general partner of Transferor is Original Guarantor.
(b) This Agreement, and any other document executed and delivered
by
Transferor to Lender concurrently herewith or incident hereto,
were
executed in accordance with the requirements of law and in
accordance with
any
requirements of the Transferor Organizational Documents (as
hereinafter
defined) of Transferor. The term "Transferor Organizational
Documents," as
used
in this paragraph 8, shall mean with respect to Transferor: (i)
the
Agreement of Limited Partnership of Transferor, dated May 18, 1987,
as
amended on April 21, 1989 and on May 1, 1990 and Certificate of
Limited
Partnership of Transferor dated October 11, 1989, as amended on May
14,
1996,
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on
May 16,
