Record and return to:
Principal Commercial Funding, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
ATTN: Xxxx Xxxxxxx
Inv - CRE Closing
DEED OF TRUST, SECURITY AGREEMENT
AND ASSIGNMENT OF RENTS
752672
A. THIS DEED OF TRUST (as the same may from time to time hereafter be modified,
supplemented or amended, this "Deed of Trust") is made as of ________________,
2000, by and between ACI FINANCING L.L.C., a Missouri limited liability company,
having its principal place of business and post office address at 000 Xxxxxx
Xxxx, Xxxxx Xxxxxx Xxxx, Xxxxxxxx 00000, as trustor hereinafter "Borrower"
("Borrower" to be construed as "Borrowers" if the context so requires), XXXXXXX
X. XXXXXXXXXXX, a Member of the Nebraska State Bar Association, having a
principal place of business and post office address at 0000 Xxxxx 000 Xxxxxx,
Xxxxx, Xxxxxxxx 00000, as "Trustee", and PRINCIPAL COMMERCIAL FUNDING, LLC, a
Delaware limited liability company, having a principal place of business and
post office address c/o Principal Capital Management, LLC at 000 Xxxxx Xxxxxx,
Xxx Xxxxxx, Xxxx 00000-0000, as beneficiary hereinafter "Lender".
WITNESSETH:
B. Borrower is justly indebted to Lender for money borrowed (the "Loan") in the
original principal sum of Four Million Three Hundred Thousand and 00/100 Dollars
($4,300,000.00) (the "Loan Amount") evidenced by Borrower's secured promissory
note of even date herewith, made payable and delivered to Lender, (as may be
modified, amended, supplemented, extended or consolidated in writing and any
note(s) issued in exchange therefor or replacement thereof) (the "Note") in
which Note Borrower promises to pay to Lender the Loan Amount, together with all
accrued and unpaid interest thereon, interest accrued at the Default Rate (if
any), Late Charges (if any), the Make Whole Premium (if any), and all other
obligations and liabilities due or to become due to Lender pursuant to the Loan
Documents and all other amounts, sums and expenses paid by or payable to Lender
pursuant to the Loan Documents and the Environmental Indemnity (collectively the
"Indebtedness") until the Indebtedness has been paid, but in any event, the
unpaid balance (if any) remaining due on the Note shall be due and payable on
September 1, 2010 or such earlier date resulting from the acceleration of the
Indebtedness by Lender (the "Maturity Date"). Capitalized terms used herein and
not otherwise defined shall have those meanings given to them in the other Loan
Documents.
C. NOW, THEREFORE, to secure the payment of the Indebtedness in accordance with
the terms and conditions of the Loan Documents, and all extensions,
modifications, and renewals thereof and the performance of the covenants and
agreements contained therein, and also to secure the payment of any and all
other Indebtedness, direct or contingent, that may now or hereafter become owing
from Borrower to Lender in connection with the Loan Documents, and in
consideration of the Loan Amount in hand paid, receipt of which is hereby
acknowledged, Borrower does by these presents irrevocably convey to Trustee, in
Trust, with POWER OF SALE exercisable pursuant to the Nebraska Trust Deeds Act
ss. 76-1001 et seq., Nebr. R.R.S., for the benefit and security of Lender, its
successors and assigns forever, that certain real estate and all of Borrower's
estate, right, title and interest therein, located in the county of Xxxxxxx,
state of Nebraska, more particularly described in Exhibit A attached hereto and
made a part hereof (the "Land"), which Land, together with the following
described property, rights and interests, is collectively referred to herein as
the "Premises".
D. Together with Borrower's interest as lessor in and to all Leases and all
Rents, which are pledged primarily and on a parity with the Land and not
secondarily.
E. Together with all and singular the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights, sewer rights,
rights in trade names, licenses, permits and contracts and all other rights,
liberties and privileges of any kind or character in any way now or hereafter
appertaining to the Land, including but not limited to, homestead and any other
claim at law or in equity as well as any after-acquired title, franchise or
license and the reversion and reversions and remainder and remainders thereof.
F. Together with the right in the case of foreclosure hereunder of the
encumbered property for Lender to take and use the name by which the buildings
and all other improvements situated on the Premises are commonly known and the
right to manage and operate the said buildings under any such name and variants
thereof.
G. Together with all right, title and interest of Borrower in any and all
buildings and improvements of every kind and description now or hereafter
erected or placed on the said Land and all materials intended for construction,
reconstruction, alteration and repairs of such buildings and improvements now or
hereafter erected thereon, all of which materials shall be deemed to be included
within the Premises immediately upon the delivery thereof to the Premises, and
all fixtures now or hereafter owned by Borrower and attached to or contained in
and used in connection with the Premises including, but not limited to, all
machinery, motors, elevators, fittings, radiators, awnings, shades, screens, and
all plumbing, heating, lighting, ventilating, refrigerating, incinerating,
air-conditioning and sprinkler equipment and fixtures and appurtenances thereto;
and all items of furniture, furnishings, equipment and personal property owned
by Borrower used or useful in the operation of the Premises; and all renewals or
replacements of all of the aforesaid property owned by Borrower or articles in
substitution therefor, whether or not the same are or shall be attached to said
buildings or improvements in any manner (collectively, the "Improvements"); it
being mutually agreed, intended and
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declared that all the aforesaid property owned by Borrower and placed by it on
the Land or used in connection with the operation or maintenance of the Premises
shall, so far as permitted by law, be deemed to form a part and parcel of the
Land and for the purpose of this Deed of Trust to be Land and covered by this
Deed of Trust, and as to any of the property aforesaid which does not form a
part and parcel of the Land or does not constitute a "fixture" (as such term is
defined in the Uniform Commercial Code) this Deed of Trust is hereby deemed to
be, as well, a security agreement under the Uniform Commercial Code for the
purpose of creating hereby a security interest in such property which Borrower
hereby grants to Lender as secured party.
H. Together with all right, title and interest of Borrower, now or hereafter
acquired, in and to any and all strips and gores of land adjacent to and used in
connection with the Premises and all right, title and interest of Borrower, now
owned or hereafter acquired, in, to, over and under the ways, streets, sidewalks
and alleys adjoining the Premises.
I. Together with all funds now or hereafter held by Lender under any escrow
security agreement or under any of the terms hereof, including but not limited
to funds held under the provisions of the Loan Agreement, insurance proceeds
from all insurance policies required to be maintained by Borrower under the Loan
Documents and all awards, decrees, proceeds, settlements or claims for damage
now or hereafter made to or for the benefit of Borrower by reason of any damage
to, destruction of or taking of the Premises or any part thereof, whether the
same shall be made by reason of the exercise of the right of eminent domain or
by condemnation or otherwise (a "Taking").
J. TO HAVE AND TO HOLD the same unto Trustee, Trustee's successors and assigns,
upon the trusts, covenants and agreements herein expressed.
K. Borrower represents that it shall forever warrant and defend the title to the
Premises against all claims and demands of all persons whomsoever and will on
demand execute any additional instrument which may be required to give Trustee a
valid first lien on all of the Premises, subject to the "Permitted Encumbrances"
set forth in Exhibit X.
X. Borrower further represents that (i) the Premises is not subject to any
casualty damage; (ii) Borrower has not received any written notice of any
eminent domain or condemnation proceeding affecting the Premises; and (iii) to
the best of Borrower's knowledge following due and diligent inquiry, there are
no actions, suits or proceedings pending, completed or threatened against or
affecting Borrower or any person or entity owning an interest (directly or
indirectly) in Borrower ("Interest Owner(s)") or any property of Borrower or any
Interest Owner in any court or before any arbitrator of any kind or before or by
any governmental authority (whether local, state, federal or foreign) that,
individually or in the aggregate, could reasonably be expected by Lender to be
material to the transaction contemplated hereby.
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BORROWER COVENANTS AND AGREES AS FOLLOWS:
1. Borrower shall
(a) pay each item of Indebtedness secured by this Deed of Trust when due
according to the terms of the Loan Documents;
(b) pay a Late Charge on any payment of principal, interest, Make Whole
Premium or Indebtedness which is not paid on or before the due date
thereof to cover the expense involved in handling such late payment;
(c) pay on or before the due date thereof any Indebtedness permitted to be
incurred by Borrower pursuant to the Loan Documents and any other
claims which could become a lien on the Premises (unless otherwise
specifically addressed in paragraph 1(e) hereof), and upon request of
Lender exhibit satisfactory evidence of the discharge thereof;
(d) complete within a reasonable time, the construction of any Improvements
now or at any time in process of construction upon the Land;
(e) manage, operate and maintain the Premises and keep the Premises,
including but not limited to, the Improvements, in good condition and
repair and free from mechanics' liens or other liens or claims for
liens, provided however, that Borrower may in good faith, with
reasonable diligence and upon written Notice to Lender within ten (10)
days after Borrower has knowledge of such lien or claim, contest the
validity or amount of any such lien or claim and defer payment and
discharge thereof during the pendency of such contest in the manner
provided by law, provided that (i) such contest may be made without the
payment thereof; (ii) such contest shall prevent the sale or forfeiture
of the Premises or any part thereof, or any interest therein, to
satisfy such lien or claim; (iii) Borrower shall have obtained a bond
over such lien or claim from a bonding company acceptable to Lender
which has the effect of removing such lien or collection of the claim
or lien so contested; and (iv) Borrower shall pay all costs and
expenses incidental to such contest; and further provided, that in the
event of a ruling or adjudication adverse to Borrower, Borrower shall
promptly pay such claim or lien, shall indemnify and hold Lender and
the Premises harmless from any loss for damage arising from such
contest and shall take whatever action necessary to prevent sale,
forfeiture or any other loss or damage to the Premises or to the
Lender.
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(f) comply, and cause each lessee or other user of the Premises to comply,
with all requirements of law and ordinance, and all rules and
regulations, now or hereafter enacted, by authorities having
jurisdiction of the Premises and the use thereof, including but not
limited to all covenants, conditions and restrictions of record
pertaining to the Premises, the Improvements, and the use thereof
(collectively, "Legal Requirements");
(g) subject to the provisions of paragraph 6 hereof, promptly repair,
restore or rebuild any Improvements now or hereafter a part of the
Premises which may become damaged or be destroyed by any cause
whatsoever, so that upon completion of the repair, restoration and
rebuilding of such Improvements, there will be no liens of any nature
arising out of the construction and the Premises will be of
substantially the same character and quality as it was prior to the
damage or destruction;
(h) if other than a natural person, do all things necessary to preserve and
keep in full force and effect its existence, franchises, rights and
privileges under the laws of the state of its formation and, if other
than its state of formation, the state where the Premises is located;
(i) do all things necessary to preserve and keep in full force and effect
Lender's title insurance coverage insuring the lien of this Deed of
Trust as a first and prior lien, subject only to the Permitted
Encumbrances stated in Exhibit B and any other exceptions after the
date of this Deed of Trust approved in writing by Lender, including
without limitation, delivering to Lender not less than 30 days prior to
the effective date of any rate adjustment, modification or extension of
the Note or any other Loan Document, any new policy or endorsement
which may be required to assure Lender of such continuing coverage; and
(j) execute any and all documents which may be required to perfect the
security interest granted by this Deed of Trust.
2. Borrower shall not:
(a) make any alteration or addition (other than normal repair and
maintenance) to (i) the roof or any structural component of any
Improvements on the Premises, or (ii) the building operating systems,
including but not limited to, the mechanical, electrical, heating,
cooling, or ventilation systems (other than replacement with equal or
better quality and capacity), without the prior written consent of
Lender, except such as are required by applicable Legal Requirements;
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(b) remove or demolish any material Improvements, or any portion thereof,
which at any time constitutes a part of the Premises;
(c) cause or permit any change to be made in the general use of the
Premises without Lender's prior written consent;
(d) initiate any or acquiesce to a zoning reclassification or material
change in zoning without Lender's prior written consent. Borrower shall
use all reasonable efforts to contest any such zoning reclassification
or change;
(e) make or permit any use of the Premises that could with the passage of
time result in the creation of any right of use, or any claim of
adverse possession or easement on, to or against any part of the
Premises in favor of any person or entity or the public;
(f) allow any of the following to occur (unless a Permitted Transfer)
except as expressly permitted in accordance with the Loan Agreement:
(i) a Transfer of all or any portion of the Premises or any interest
in the Premises;
(ii) a Transfer of any ownership interest in Borrower or any entity
which owns, directly or indirectly, an interest in Borrower at
any level of the ownership structure; or
(iii) in addition to (i) and (ii) above, if the Borrower is a trust, or
if a trust owns an interest directly or indirectly, in any entity
which owns an interest in Borrower at any level of the ownership
structure, the addition, deletion or substitution of a trustee of
such trust.
If any of such events occur, it shall be null and void and shall
constitute an Event of Default under the Loan Documents.
It is understood and agreed that the Indebtedness evidenced by the Note
is personal to Borrower and in reliance upon the ownership structure of
Borrower and in accepting the same Lender has relied upon what it
perceived as the willingness and ability of Borrower to perform its
obligations under the Loan Documents and the Environmental Indemnity
and as lessor under the Leases of the Premises. Furthermore, Lender may
consent to a Transfer and expressly waive Borrower's covenants
contained in this paragraph 2(f), in writing to Borrower; however any
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such consent and waiver shall not constitute any consent or waiver of
such covenants as to any Transfer other than that for which the consent
and waiver was expressly granted. Furthermore, Lender's willingness to
consent to any Transfer and waive Borrower's covenants contained in
this paragraph 2(f), implies no standard of reasonableness in
determining whether or not such consent shall be granted and the same
may be based upon what Lender solely deems to be in its best interest.
For purposes of the Loan Documents, the following terms shall have the
respective meanings set forth below:
"Transfer" or "Transferred" shall mean with respect to the Premises, an
interest in the Premises, or an ownership interest or interest therein:
(i) a sale, assignment, transfer, conveyance or other disposition
(whether voluntary, involuntary or by operation of law);
(ii) the creation, sufferance or granting of any lien, encumbrance,
security interest or collateral assignment (whether voluntarily,
involuntarily or by operation of law), other than the lien
hereof, the leases of the Premises assigned to Lender, the
Permitted Encumbrances and those liens which Borrower is
contesting in accordance with the provisions of paragraph 1(e);
(iii) the issuance or other creation of ownership interests in an
entity;
(iv) the reconstitution or conversion from one entity to another type
of entity; or
(v) a merger, consolidation, reorganization or any other business
combination.
"Permitted Transfer" shall mean:
(i) a minor (as reasonably determined by Lender) conveyance of an
interest in the Premises by Borrower, such as a utility easement,
and for which Lender has given its prior written consent and
imposed such conditions as Lender deems advisable and
appropriate;
(ii) a sale, assignment, transfer or conveyance of all or any portion
of the Premises or an interest in the Premises for which Borrower
has complied with all of the Property Transfer Requirements,
provided however, in no event shall any such Transfers exceed two
in number throughout the term of the Loan; or
(iii) any of the following Transfers for which Borrower has complied
with all of the Ownership Transfer Requirements as applicable and
Lender has given its prior written consent, which shall not be
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unreasonably withheld or delayed, (and in connection with such
consent, Lender may impose any conditions it wishes in its sole
discretion);
(A) a sale, assignment, transfer, or conveyance of an ownership
interest or interest therein;
(B) the issuance or other creation of ownership interests in an
entity;
(C) the reconstitution or conversion from one entity to another
type of entity; or a merger, consolidation, reorganization
or any other business combination.
(iv) a Transfer of membership interest in Borrower to an entity formed
by Maxus Realty Trust, Inc. as part of an up-REIT / down-REIT
transaction for which Borrower has complied with all of the
Specific Transfer Requirements as applicable and Lender has given
its prior written consent.
"Property Transfer Requirements" are all of the following:
1. Prior review and approval of the proposed purchaser or other
transferee and the subject transaction by Lender, at Lender's
sole discretion. Review of the proposed purchaser or other
transferee and the subject transaction shall encompass various
factors, including, but not limited to, the proposed purchaser's
or other transferee's creditworthiness, financial strength, and
real estate management and leasing expertise as well as the
proposed transaction's effect on the Premises, the Borrower, and
other security for the Loan;
2. Payment to Lender of an assumption fee equal to the greater of:
(a) one percent (1%) of the principal balance of the Note; or (b)
$15,000.00; provided, however, that Lender will require
$15,000.00 of such fee to be paid at the beginning of Lender's
review process, and such sum shall be nonrefundable and earned
upon receipt by Lender whether or not the transaction is
ultimately completed or Lender ultimately approves the proposed
purchaser or other transferee;
3. Receipt, at Borrower's expense, of either (at Lender's
discretion) a new ALTA standard loan policy or an endorsement
updating
the Lender's existing loan policy in the full amount of the Loan,
in form and by an issuer satisfactory to Lender, and which
insures this Deed of Trust to be a first and prior lien subject
only to those exceptions which were previously approved by Lender
and provides coverage against usury and mechanic's liens;
4. Receipt by Lender of copies of all relevant information and
documentation relating to or required by Lender in connection
with the proposed transfer including but not limited to (a) the
organizational documents of the proposed transferee and an
opinion of counsel satisfactory to Lender as to its due
formation, valid existence and authority to enter into and carry
out the proposed transaction as well as the proposed transferee's
compliance with the representations and warranties in the Loan
Agreement regarding the proposed transferee's status as a
Single-Purpose Entity; (b) the deeds or other instruments of
transfer and documents relating to the assignment and assumption
of Leases; (c) evidence of compliance with the insurance
requirements contained in the Loan Documents; and (d) compliance
with such other closing requirements as are customarily imposed
by Lender in connection with such transactions;
5. Execution, delivery, acknowledgment and recordation, as
applicable, of new, revised and/or replacement assumption
agreements, loan modification agreements, indemnification
agreements, escrow security agreements, security instruments,
financing statements, UCCs, new or revised letters of credit
and/or guarantees in form and substance satisfactory to Lender;
6. Payment of outside counsel fees and costs, other applicable
professional's fees and costs, taxes, recording fees and the
like, and any other fees and costs incurred; and
7. Receipt by Lender of 60 days advance written notice of the
proposed Transfer in question.
"Ownership Transfer Requirements" are all of the Property Transfer
Requirements which Lender deems appropriate in its discretion, as well
as a reasonable processing fee to be determined by Lender; provided,
however, that (i) with respect to item 2 of the Property Transfer
Requirements, the 1% component of the fee shall be prorated (subject,
however, to the $15,000 minimum) based on Lender's calculation of the
effective percentage interest in Borrower transferred, and (ii) item 3
of
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the Property Transfer Requirements shall be required, at Lender's
discretion, only in the event of (A) a merger, consolidation,
reorganization or any other business combination, or (B) a
reconstitution or conversion from one entity to another type of entity.
"Specific Transfer Requirements" are all of the following: (i) Maxus
Realty Trust, Inc. retains a minimum 50% ownership interest in and
retains management and control of Borrower; (ii) Lender receives notice
of such transfer within thirty (30) days of the consummation of such
transfer along with appropriate documentation thereof (including
organizational documentation evidencing the formation and existence of
any entity to which an interest is transferred); (iii) Lender receives
a reaffirmation of the obligations of the Guarantor(s) under the
Guaranty or an assumption of the obligations of the guarantor(s) by an
individual(s) or entity(ies) acceptable to Lender in its sole
discretion; (iv) transfers of membership interest in Borrower to an
entity formed by Maxus Realty Trust, Inc. as part of an up-REIT /
down-REIT transaction, shall not exceed two in number throughout the
term of the Loan; and (v) Lender receives a reasonable fee for handling
each such transfer not to exceed $1,000.00 per Transfer.
3. (a) Borrower shall pay or cause to be paid when due and before
any penalty attaches or interest accrues all general taxes,
special taxes, assessments (including assessments for
benefits from public works or improvements whenever begun or
completed), utility charges, water charges, sewer service
charges, common area maintenance charges, if any, vault or
space charges and all other like charges against or
affecting the Premises or against any property or equipment
located on the Premises, or which might become a lien on the
Premises, and shall, within 10 days following Lender's
request, furnish to Lender a duplicate receipt of such
payment. If any such tax, assessment or charge may legally
be paid in installments, Borrower may, at its option, pay
such tax, assessment or charge in installments.
(b) If Borrower desires to contest any tax, assessment or charge
relating to the Premises, Borrower may do so by paying the
same in full, under protest, in the manner provided by law;
provided, however, that
(i) if contest of any tax, assessment or charge may be made
without the payment thereof, and
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(ii) such contest shall have the effect of preventing the
collection of the tax, assessment or charge so
contested and the sale or forfeiture of the Premises or
any part thereof or any interest therein to satisfy the
same,
then Borrower may in its discretion and upon the giving of
written notice to Lender of its intended action and upon the
furnishing to Lender of such security or bond as Lender may
require, contest any such tax, assessment or charge in good
faith and in the manner provided by law. All costs and
expenses incidental to such contest shall be paid by
Borrower. In the event of a ruling or adjudication adverse
to Borrower, Borrower shall promptly pay such tax,
assessment or charge. Borrower shall indemnify and save
harmless the Lender and the Premises from any loss or damage
arising from any such contest and shall, if necessary to
prevent sale, forfeiture or any other loss or damage to the
Premises or to Lender, pay such tax, assessment or charge or
take whatever action is necessary to prevent any sale,
forfeiture or loss.
4. (a) Borrower shall at all times keep in force (i) property
insurance insuring all Improvements which now are or
hereafter become a part of the Premises for perils covered
by a causes of loss-special form insurance policy with an
ordinance or law coverage endorsement containing both
replacement cost and agreed amount endorsements or options;
(ii) commercial general liability insurance naming Lender as
an additional insured protecting Borrower and Lender against
liability for bodily injury or property damage occurring in,
on or adjacent to the Premises in commercially reasonable
amounts; (iii) boiler and machinery insurance if the
property has a boiler or is an office building; (iv) rental
value insurance for the perils specified herein for one
hundred percent (100%) of the Rents (including operating
expenses, real estate taxes, assessments and insurance costs
which are lessee's liability) for a period of twelve (12)
months; (v) builders risk insurance during all periods of
construction; and (vi) insurance against all other hazards
as may be reasonably required by Lender, including, without
limitation, insurance against loss or damage by flood and
earthquake.
(b) All insurance shall be in form, content and amounts approved
by Lender and written by an insurance company or companies
rated A-, class size VIII or better in the most current
issue of Best's Insurance Reports and which is licensed to
do business in the state in which the Premises are located
and domiciled in the United States or a governmental agency
or instrumentality approved by Lender. The policies for such
insurance shall have attached thereto standard mortgagee
clauses in favor of and
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permitting Lender to collect any and all proceeds payable
thereunder and shall include a 30 day (except for nonpayment
of premium, in which case, a 10 day) notice of cancellation
clause in favor of Lender. All policies or certificates of
insurance shall be delivered to and held by Lender as
further security for the payment of the Note and any other
obligations arising under the Loan Documents, with evidence
of renewal coverage delivered to Lender at least 30 days
before the expiration date of any policy. Borrower shall not
carry separate insurance, concurrent in kind or form and
contributing in the event of loss, with any insurance
required in the Loan Documents.
5. Borrower shall deposit with and pay to Lender the estimated taxes
and assessments assessed or levied against and next due on the
Premises and the estimated premiums for the insurance required
pursuant to the Loan Documents, all in accordance with the
requirements of the Loan Agreement.
6. In the event of any damage to or destruction of the Premises, or
any part thereof:
(a) Borrower will immediately notify Lender thereof in the
manner provided in this Deed of Trust for the giving of
notices. Lender shall have the right (which may be waived by
Lender in writing) to settle and adjust any claim under such
insurance policies required to be maintained by Borrower. In
all circumstances, the proceeds thereof shall be paid to
Lender and Lender is authorized to collect and to give
receipts therefor. Borrower agrees and acknowledges that
such proceeds shall be held by Lender without any allowance
of interest and that in any bankruptcy proceeding of
Borrower, all such proceeds shall be deemed to be "Cash
Collateral" as that term is defined in Section 363 of the
Bankruptcy Code. Provided that no Event of Default exists,
Borrower shall have the right to participate in any
settlement or adjustment; provided, however, that any
settlement or adjustment shall be subject to the written
approval of Lender, not to be unreasonably withheld.
(b) Such proceeds, after deducting therefrom any expenses
incurred by Lender in the collection thereof (including but
not limited to reasonable attorneys' fees and costs), shall
be applied by Lender to pay the Indebtedness secured hereby
including, but not limited to the Make Whole Premium,
whether or not then due and payable, provided, however, that
if no Event of Default exists at the time of such
application, no Make Whole Premium shall be due.
Notwithstanding anything hereinabove to the contrary,
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(i) in the event the casualty occurs more than six (6)
months prior to the Maturity Date and no Event of
Default exists, Lender shall apply such proceeds as
follows:
(A) If the aggregate amount of such proceeds is less
than $50,000, Lender shall pay such proceeds
directly to Borrower, to be held in trust for
Lender and applied to the cost of rebuilding and
restoring the Premises.
(B) If the aggregate amount of such proceeds equals or
exceeds $50,000 Lender shall disburse such amounts
of the proceeds as Lender reasonably deems
necessary for the repair or replacement of the
Premises, subject to the conditions set forth in
paragraph 6(c) below.
(ii) in the event (x) an Event of Default exists, or (y) the
casualty occurs during the last six (6) months prior to
the Maturity Date and Lender determines that the repair
and restoration of such casualty cannot be completed
prior to the Maturity Date, or (z) the conditions set
forth in 6(c) are not met, then Lender, in its sole and
absolute discretion may either:
(A) declare the entire Indebtedness to be immediately
due and payable and apply all such proceeds to pay
the Indebtedness in such priority as Lender
elects, provided, however, that if no Event of
Default exists at the time of such application, no
Make Whole Premium shall be due; or
(B) disburse such proceeds as Lender reasonably deems
necessary for the repair or replacement of the
Premises subject to those conditions set forth in
paragraph 6(c) which Lender in its sole and
absolute discretion may require.
(c) (i) In the event that Borrower is to be reimbursed out of
the insurance proceeds or out of any award or payment
received with respect to a Taking, Lender shall from
time to time make available such proceeds, subject to
the following conditions: (a) there continues to exist
no Event of Default; (b) the delivery to Lender of
satisfactory evidence of the estimated cost of
completion of such repair and restoration work and any
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architect's certificates, waivers of lien, contractor's
sworn statements, and other evidence of cost and of
payment and of the continued priority of the lien
hereof over any potential liens of mechanics and
materialmen (including, without limitation, title
policy endorsements) as Lender may require and approve;
(c) the time required to complete the repair and
restoration work and for the income from the Premises
to return to the level it was prior to the loss will
not exceed the coverage period of the rental value
insurance required hereunder; (d) the annual net
operating income from all approved executed Leases,
having at least 3 years remaining prior to the
expiration of their term, with no uncured defaults,
shall equal or exceed 1.25 times the annual debt
service on the Note, and Applied Communication, Inc.
confirms in writing to Lender that it will occupy the
Premises after the restoration is completed, its lease
is in full force and effect, and no defaults have
occurred and are continuing thereunder; (e) Lender
approves the plans and specifications of such work
before such work is commenced if the estimated cost of
rebuilding and restoration exceeds 25% of the
Indebtedness or involves any structural changes or
modifications. If said plans and specifications
substantially comply with those previously approved by
Lender, Lender's approval shall not be unreasonably
withheld; (f) if the amount of any insurance proceeds,
award or other payment is insufficient to cover the
cost of restoring and rebuilding the Premises, Borrower
shall pay such cost in excess of such proceeds, award
or other payment before being entitled to reimbursement
out of such funds; (g) Borrower pays to Lender a
non-refundable processing fee equal to the greater of
$5,000.00 or .25% of the amount of such proceeds within
sixty (60) days of the occurrence of any such damage or
destruction and before Lender disburses any proceeds;
and (h) such other conditions to such disbursements, in
Lender's discretion, as would be customarily required
by a construction lender doing business in the area
where the Premises is located or which are otherwise
required by any rating agency rating a securitization
transaction with respect to the Loan.
(ii) No payment made by Lender prior to the final completion
of the repair or restoration work shall, together with
all payments theretofore made, exceed 90% of the cost
of such work performed to the time of payment, and at
all times the undisbursed balance of said proceeds
shall be at least sufficient to pay for the cost of
completion of such work free and clear of all
14
liens. Any proceeds remaining after payment of the cost
of rebuilding and restoration shall, at the option of
Lender, either be (a) applied in reduction of the
Indebtedness secured hereby, provided, however, that if
no Event of Default exists at the time of such
application, no Make Whole Premium shall be due, or (b)
paid to Borrower.
(iii)Repair and restoration of the Premises shall be
commenced promptly after the occurrence of the loss and
shall be prosecuted to completion diligently, and the
Premises shall be so restored and rebuilt to
substantially the same character and quality as prior
to such damage and destruction and shall comply with
all building codes and zoning requirements.
(d) Should such damage or destruction occur after foreclosure or sale
proceedings have been instituted, the proceeds of any such
insurance policy or policies, if not applied in rebuilding or
restoration of the Improvements, shall be used to pay (i) the
Indebtedness then due and owing in the event of a non-judicial
sale in such priority as Lender elects, or (ii) the amount due in
accordance with any decree of foreclosure or deficiency judgment
that may be entered in connection with such proceedings, and the
balance, if any, shall be paid to the owner of the equity of
redemption if he shall then be entitled to the same, or otherwise
as any court having jurisdiction may direct.
7. In the event of the commencement of a Taking affecting the Premises:
(a) Borrower shall notify Lender thereof in the manner provided in this
Deed of Trust for the giving of notices. Lender may participate in
such proceeding, and Borrower shall deliver to Lender all documents
requested by it to permit such participation.
(b) Borrower shall cause the proceeds of any award or other payment made
relating to a Taking, to be paid directly to Lender. Lender, in its
sole and absolute discretion: (i) may apply all such proceeds to pay
the Indebtedness in such priority as Lender elects, provided however,
that if no Event of Default exists at the time of such application no
Make Whole Premium shall be due; or (ii) subject to and in accordance
with the provisions set forth in paragraph 6(c) above, may disburse
such amounts of the proceeds as Lender reasonably deems necessary for
the repair or replacement of the Premises.
15
8. If by the laws of the United States of America or of any state or
governmental subdivision having jurisdiction over Borrower or of the
Premises or of the Loan evidenced by the Loan Documents or any amendments
or modifications thereof, any tax or fee is due or becomes due or is
imposed upon Lender in respect of the issuance of the Note hereby secured
or the making, recording and registration of this Deed of Trust or
otherwise in connection with the Loan Documents, the Environmental
Indemnity or the Loan, except for Lender's income or franchise tax,
Borrower covenants and agrees to pay such tax or fee in the manner required
by such law and to hold harmless and indemnify Trustee and Lender, their
successors and assigns, against any liability incurred by reason of the
imposition of any such tax or fee.
9. (a) Upon the occurrence of any Event of Default, Lender may, but need not,
make any payment or perform any act herein required of Borrower, in any
form and manner deemed expedient and may, but need not, make full or
partial payments of principal or interest on prior encumbrances, if
any, and purchase, discharge, compromise or settle any tax lien or
other prior lien or title or claim thereof, or redeem from any tax sale
or forfeiture affecting said Premises, or contest any tax or
assessment. All moneys paid for any of the purposes herein authorized
and all reasonable expenses paid or incurred in connection therewith,
including but not limited to, reasonable attorneys' fees and costs and
reasonable attorneys' fees and costs on appeal, and any other money
advanced by Lender to protect the Premises and the lien hereof, shall
be so much additional Indebtedness secured hereby and shall become
immediately due and payable without notice and with interest thereon at
the Default Rate from the date of expenditure or advance until paid.
(b) In making any payment hereby authorized relating to taxes or
assessments or for the purchase, discharge, compromise or settlement of
any prior lien, Lender may make such payment according to any xxxx,
statement or estimate secured from the appropriate public office
without inquiry into the accuracy thereof or into the validity of any
tax, assessment, sale, forfeiture, tax lien or title or claim thereof
or without inquiry as to the validity or amount of any claim for lien
which may be asserted.
10. If one or more of the following events (herein called "Event(s) of
Default") shall have occurred:
(a) failure to pay when due any principal, interest, Make Whole Premium or
other Indebtedness, utilities, taxes or assessments or insurance
premiums
16
required pursuant to the Loan Documents or the Environmental Indemnity,
and such failure shall have continued for 10 days; or
(b) Borrower, Interest Owner or any guarantor voluntarily brings or
acquiesces to any of the following: (A) any action for dissolution, act
of dissolution or dissolution or the like of Borrower, Interest Owner
or any guarantor under the Federal Bankruptcy Code as now or hereafter
constituted; (B) the filing of a petition or answer proposing the
adjudication of Borrower, Interest Owner or any guarantor as a bankrupt
or its reorganization or arrangement, or any composition, readjustment,
liquidation, dissolution or similar relief with respect to it pursuant
to any present or future federal or state bankruptcy or similar law; or
(C) the appointment by order of a court of competent jurisdiction of a
receiver, trustee or liquidator of the Premises or any part thereof or
of Borrower, Interest Owner or any guarantor or of substantially all of
the assets of Borrower, Interest Owner or any guarantor; or
(c) one or more of the items set forth in paragraph 10(b) above occur which
were either not (i) voluntarily brought by Borrower, Interest Owner or
any guarantor or (ii) acquiesced in by Borrower, Interest Owner or any
guarantor, and which are not discharged or dismissed within 90 days
after the action, filing or appointment, as the case may be; or
With respect to the matters in (b) and (c) above for an Interest Owner
only, no Event of Default shall occur until an interested party or
Interest Owner asserts a claim or right against Borrower or the
Premises which in any manner may affect Lender's rights, remedies, or
interests granted under the Loan Documents (whether or not such
assertion is successful).
(d) with respect to the matters not described in the other subparagraphs of
this paragraph 10, failure to duly observe or perform any covenant,
condition or agreement of the Borrower or any guarantor contained in
this Deed of Trust, the Loan Agreement, the Guaranty, the Note or the
Assignment of Leases from Borrower to Lender or in any other instrument
or agreement which evidences or secures the Loan (the "Loan
Documents"), or in the Environmental Indemnity and such failure shall
have continued for 30 days after Notice specifying such failure is
given by Lender to Borrower; or
If any failure to observe or perform under (d) above shall be of such
nature that it cannot be cured or remedied within 30 days, Borrower
shall be entitled to a reasonable period of time to cure or remedy such
failure (not to exceed 90 days following the giving of Notice),
provided
17
Borrower commences the cure or remedy thereof within the 30 day period
following the giving of Notice and thereafter proceeds with diligence,
as determined by Lender, to complete such cure or remedy.
(e) the failure of Borrower to duly observe or perform any of the
covenants, conditions and agreements of the Borrower contained in
paragraph 2(f) of this Deed of Trust; or
(f) any representation made by or on behalf of Borrower, Interest Owner or
any guarantor regarding the Premises, the making or delivery of any of
the Loan Documents or the Environmental Indemnity or in any material
written information provided by or on behalf of Borrower, Interest
Owner or any guarantor in connection with the Loan shall prove to be
untrue or inaccurate in any material respect; or
(g) the failure of Borrower to give Notice to Lender within 60 days after
the death of any individual who is personally liable for any obligation
under the Loan Documents or the Environmental Indemnity, as Borrower,
indemnitor or guarantor, whether or not such individual had executed
the Note or this Deed of Trust; or
(h) subject to the provisions of paragraph 2(f), the failure of Borrower to
provide Lender with an assumption agreement in form and substance and
executed by a person(s) or entity(ies) acceptable to Lender in its sole
discretion to assume the obligations of any deceased individual who is
personally liable for any obligation under the Loan Documents or the
Environmental Indemnity, as Borrower, indemnitor or guarantor, whether
or not such individual had executed the Note or this Deed of Trust, and
such failure shall have continued for 60 days after the death of such
individual; or
(i) the failure of Borrower to remain a Single-Purpose Entity;
then, in each and every such case, the whole of said principal sum hereby
secured shall, at the option of the Lender and without further notice to
Borrower, become immediately due and payable together with accrued interest
thereon, a Make Whole Premium calculated in accordance with the provisions
of the Loan Documents and all other Indebtedness, and whether or not Lender
has exercised said option, interest shall accrue on the entire principal
balance and any interest or Make Whole Premium or other Indebtedness then
due, at the Default Rate until fully paid or if Lender has not exercised
said option, for the duration of any Event of Default.
18
11. Borrower agrees that if Lender accelerates the whole or any part of the
principal sum hereby secured, or applies any proceeds pursuant to the
provisions hereof, Borrower waives any right to prepay the principal sum
hereby secured in whole or in part without premium and agrees to pay, as
yield maintenance protection and not as a penalty, a "Make Whole Premium".
However, in the event any proceeds from a casualty or Taking of the
Premises are applied to reduce the principal balance under
the Note, no Make Whole Premium shall be due so long as no Event of Default
exists at the time of such application.
12. (a) Upon the occurrence of any Event of Default, in addition to any other
rights or remedies provided in the Loan Documents, at law, in equity or
otherwise, Lender shall have the right to cause the Premises or any
part thereof to be sold pursuant to the POWER OF SALE granted herein,
in order to accomplish the object of these trusts and upon demand by
Lender, Trustee, without demand on Borrower, shall sell the Premises or
such part thereof as Trustee in its sole discretion may deem necessary
to accomplish the objects of these trusts having first given all
statutory notices (of default or otherwise) and thereafter, if such
Event of Default has not been cured, of the time and place of such sale
as required by law pursuant to the Nebraska Trust Deeds Act. For
purposes of all notices required hereunder or pursuant to the Nebraska
Trustees Act, Borrower designates the address as set forth in preamble
to this agreement as the address for all such notices.
(b) Trustee may postpone such sale from time to time by giving notice of
such postponement in the same manner in which any original notice of
sale was given or by an announcement or proclamation made to the
persons assembled at the time and place previously appointed and
noticed for such sale or postponed sale, and on the date of such sale
or the date to which such sale may have been postponed Trustee may sell
the Premises to the highest bidder. Lender or its agents may bid and
purchase at such sale. Trustee in conducting said sale may act either
in person or through the agency of an auctioneer and may establish as
one of the conditions of such sale that all bids and payments for said
Premises be made in cash.
13. Upon such sale, Trustee shall make, execute, and after due payment is made,
deliver to the purchaser or purchasers a deed or deeds for the Premises or
part thereof sold and shall apply the proceeds of the sale, at the election
of Lender first, to all of the expenses of such sale including the
reasonable expenses of this trust or the Trustee and the fees and costs of
any attorneys for this trust, environmental audits, the Trustee or Lender,
all of which shall accrue and become due from and after any Event of
Default, together with any sums which
19
Trustee or Lender shall have paid for procuring any abstract, certificate
or report of title to the Premises and, second, to principal, interest and
any other Indebtedness and all other sums or amounts due under the Note or
agreed or provided to be paid by Borrower herein or in any other Loan
Documents, all in such order as Lender may determine. The remainder of such
proceeds, if any, shall be paid to Borrower or Borrower's successors or
assigns, as their rights may appear.
14. In the event of such a sale of the Premises or any part thereof and the
execution of a deed or deeds therefor under these trusts, any recital
therein of the occurrence of an Event of Default or of the giving or
recording of any notice or demand by Trustee or Lender regarding such sale
shall be conclusive proof thereof, and the receipt of the purchase money
recited therein shall fully discharge the purchaser from any obligation for
the proper application of the proceeds of sale in accordance with these
trusts.
15. Following the occurrence of an Event of Default, unless the same has been
specifically waived in writing, Borrower shall forthwith upon demand of
Trustee or Lender surrender to Lender possession of the Premises, and
Lender shall be entitled to take actual possession of the Premises or any
part thereof personally or by its agents or attorneys, and Lender in its
discretion may, with or without force and with or without process of law,
enter upon and take and maintain possession of all or any part of the
Premises together with all documents, books, records, papers and accounts
of the Borrower or the then owner of the Premises relating thereto, and may
exclude Borrower, its agents or assigns wholly therefrom, and may as
attorney-in-fact or agent of the Borrower, or in its own name as Lender and
under the powers herein granted:
(a) hold, operate, maintain, repair, rebuild, replace, alter, improve,
manage or control the Premises as it deems judicious, insure and
reinsure the same and any risks related to Lender's possession,
operation and management thereof and receive all Rents, either
personally or by its agents, and with full power to use such measures,
legal or equitable, as in its discretion it deems proper or necessary
to enforce the payment or security of the Rents, including actions for
the recovery of Rent, actions in forcible detainer and actions in
distress for Rents, hereby granting full power and authority to
exercise each and every of the rights, privileges and powers herein
granted at any and all times hereafter, without notice to Borrower; and
(b) conduct leasing activity pursuant to the provisions of the Assignment
of Leases.
21
Neither Trustee nor Lender shall be obligated to perform or discharge, nor
does either hereby undertake to perform or discharge, any obligation, duty
or liability under any Lease. Should Trustee or Lender incur any liability,
loss or damage under any Leases, or under or by reason of the Assignment of
Leases, or in the defense of any claims or demands whatsoever which may be
asserted against Lender or Trustee by reason of any alleged obligations or
undertakings on its part to perform or discharge any of the terms,
covenants or agreements in any Lease, the amount thereof, including costs,
expenses and reasonable attorneys' fees and costs, including reasonable
attorneys' fees and costs on appeal, shall be added to the Indebtedness and
secured hereby.
16. Trustee and Lender in the exercise of the rights and powers conferred upon
them shall have the full power to use and apply the Rents, less costs and
expenses of collection to the payment of or on account of the items listed
in (a) - (c) below, at the election of Lender and in such order as Lender
may determine. The manner of the application of Rents, the reasonableness
of the costs and charges to which such Rents are applied and the item or
items which shall be credited thereby shall be within the sole and
unlimited discretion of Lender.
(a) to the payment of (i) the expenses of operating and maintaining the
Premises, including, but not limited to the cost of management, leasing
(which shall include reasonable compensation to Trustee, Lender and
their respective agent or agents if management and/or leasing is
delegated to an agent or agents), repairing, rebuilding, replacing,
altering and improving the Premises, (ii) premiums on insurance as
hereinabove authorized, (iii) taxes and special assessments now due or
which may hereafter become due on the Premises, and (iv) expenses of
placing the Premises in such condition as will, in the sole judgment of
Lender, make it readily rentable;
(b) to the payment of any principal, interest or any other Indebtedness
secured hereby or any deficiency which may result from any foreclosure
sale;
(c) to the payment of established claims for damages, if any, reasonable
attorneys' fees and costs and reasonable attorneys' fees and costs on
appeal.
To the extent that the costs and expenses in (a) - (c) above exceed the
amounts collected, the excess shall be added to the Indebtedness and
secured hereby.
17. Upon the occurrence of any Event of Default, unless the same has been
specifically waived in writing, Lender may apply to any court having
21
jurisdiction for the appointment of a receiver of the Premises. Such
appointment may be made either before or after sale, without notice,
without regard to the solvency or insolvency of Borrower at the time of
application for such receiver and without regard to the then value of the
Premises or the adequacy of Lender's security. Lender may be appointed as
such receiver. The receiver shall have power to collect the Rents during
the pendency of any foreclosure proceedings and, in case of a sale, during
the full statutory period of redemption, if any, as well as during any
further times when Borrower, except for the intervention of such receiver,
would be entitled to collect such Rents. In addition, the receiver shall
have all other powers which shall be necessary or are usual in such cases
for the protection, possession, control, management and operation of the
Premises during the whole of said period. The court from time to time may
authorize the receiver to apply the net income in its possession at
Lender's election and in such order as Lender may determine in payment in
full or in part of those items listed in paragraph 16.
18. (a) Borrower agrees that all reasonable costs, charges and expenses,
including but not limited to, reasonable attorneys' fees and costs,
incurred or expended by Trustee or Lender arising out of or in
connection with any action, proceeding or hearing, legal, equitable or
quasi-legal, including the preparation therefor and any appeal
therefrom, in any way affecting or pertaining to the Loan Documents,
the Environmental Indemnity, or the Premises, shall be promptly paid by
Borrower. All such sums not promptly paid by Borrower shall be added to
the Indebtedness secured hereby and shall bear interest at the Default
Rate from the date of such advance and shall be due and payable on
demand.
(b) Borrower hereby agrees that upon the occurrence of an Event of Default
and the acceleration of the principal sum secured hereby pursuant to
this Deed of Trust, to the full extent that such rights can be lawfully
waived, Borrower hereby waives and agrees not to insist upon, plead, or
in any manner take advantage of, any notice of acceleration, any stay,
extension, exemption, homestead, marshaling or moratorium law or any
law providing for the valuation or appraisement of all or any part of
the Premises prior to any sale or sales thereof under any provision of
this Deed of Trust or before or after any decree, judgment or order of
any court or confirmation thereof, or claim or exercise any right to
redeem all or any part of the Premises so sold and hereby expressly
waives to the full extent permitted by applicable law on behalf of
itself and each and every person or entity acquiring any right, title
or interest in or to all or any part of the Premises, all benefit and
advantage of any such laws which would otherwise be available to
Borrower or any such
22
person or entity, and agrees that neither Borrower nor any such person or
entity will invoke or utilize any such law to otherwise hinder, delay or
impede the exercise of any remedy granted or delegated to Lender herein but
will permit the exercise of such remedy as though any such laws had not
been enacted. Borrower hereby further expressly waives to the full extent
permitted by applicable law on behalf of itself and each and every person
or entity acquiring any right, title or interest in or to all or any part
of the Premises any and all rights of redemption from any sale or any order
or decree of foreclosure obtained pursuant to provisions of this Deed of
Trust.
19. Borrower hereby assigns to Lender directly and absolutely, and not merely
collaterally, the interest of Borrower as lessor under the Leases of the
Premises and the Rents payable under any Lease and/or with respect to the
use of the Premises, or portion thereof, including any oil, gas or mineral
lease, or any installments of money payable pursuant to any agreement or
any sale of the Premises or any part thereof, subject only to a license, if
any, granted by Lender to Borrower with respect thereto prior to the
occurrence of an Event of Default. Borrower has executed and delivered the
Assignment of Leases which grants to Lender specific rights and remedies in
respect of said Leases and governs the collection of Rents thereunder and
from the use of the Premises, and such rights and remedies so granted shall
be cumulative of those granted herein.
The collection of such Rents and the application thereof as aforesaid shall
not cure or waive any Event of Default or notice of default hereunder or
invalidate any act done pursuant to such notice, except to the extent any
such Event of Default is fully cured. Failure or discontinuance of Lender
at any time, or from time to time, to collect any such moneys shall not
impair in any manner the subsequent enforcement by Lender of the right,
power and authority herein conferred on Lender. Nothing contained herein,
including the exercise of any right, power or authority herein granted to
Lender, shall be, or be construed to be, an affirmation by Lender of any
tenancy, Lease or option, or an assumption of liability under, or the
subordination of the lien or charge of this Deed of Trust to any such
tenancy, Lease or option. Borrower hereby agrees that, in the event Lender
exercises its rights as provided for in this paragraph or in the Assignment
of Leases, Borrower waives any right to compensation for the use of
Borrower's furniture, furnishings or equipment in the Premises for the
period such assignment of rents or receivership is in effect, it being
understood that the Rents derived from the use of any such items shall be
applied to Borrower's obligations hereunder as above provided.
23
20. All rights and remedies granted to Trustee or Lender in the Loan Documents
shall be in addition to and not in limitation of any rights and remedies to
which it is entitled in equity, at law or by statute, and the invalidity of
any right or remedy herein provided by reason of its conflict with
applicable law or statute shall not affect any other valid right or remedy
afforded to Trustee or Lender. No waiver of any default or Event of Default
under any of the Loan Documents shall at any time thereafter be held to be
a waiver of any rights of the Trustee or Lender hereunder, nor shall any
waiver of a prior Event of Default or default operate to waive any
subsequent Event of Default or default. All remedies provided for in the
Loan Documents are cumulative and may, at the election of Lender, be
exercised alternatively, successively, or concurrently. No act of Trustee
or Lender shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision or to proceed
against one portion of the Premises to the exclusion of any other portion.
Time is of the essence under this Deed of Trust and the Loan Documents.
21. By accepting payment of any sum secured hereby after its due date, Lender
does not waive its right either to require prompt payment when due of all
other sums or installments so secured or to declare a default for failure
to pay such other sums or installments.
22. The usury provisions of paragraph 6 of the Note and the limitation of
recourse liability provisions of paragraph 9 of the Note are fully
incorporated herein by reference as if the same were specifically stated
here.
23. In the event one or more provisions of the Loan Documents shall be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof,
and the Loan Documents shall be construed as if any such provision had
never been contained herein.
24. If the payment of the Indebtedness secured hereby or of any part thereof
shall be extended or varied, or if any part of the security be released,
all persons now or at any time hereafter liable therefor, or interested in
said Premises, shall be held to assent to such extension, variation or
release, and their liability and the lien and all provisions hereof shall
continue in full force, the right of recourse against all such persons
being expressly reserved by Lender notwithstanding such variation or
release.
25. Upon payment in full of the principal sum, interest and other Indebtedness
secured by the Loan Documents, these presents shall be null and void, and
Trustee shall release this Deed of Trust and the lien hereof by proper
instrument executed in recordable form.
24
26. (a) Borrower hereby grants to Lender and its respective agents, attorneys,
employees, consultants, contractors and assigns an irrevocable license
and authorization to enter upon and inspect the Premises and all
facilities located thereon at reasonable times. Lender shall make
reasonable efforts to ensure that the business operations of the
tenants are not disrupted.
(b) In connection with any sale or conveyance of this Deed of Trust,
Borrower grants to Lender and its respective agents, attorneys,
employees, consultants, contractors and assigns an irrevocable license
and authorization to conduct, at Lender's expense, a Phase I
environmental audit of the Premises.
(c) In the event there has been an Event of Default or in the event Lender
has formed a reasonable belief, based on its inspection of the Premises
or other factors known to it, that Hazardous Materials may be present
on the Premises, then Borrower grants to Lender and its respective
agents, attorneys, employees, consultants, contractors and assigns an
irrevocable license and authorization to conduct, at Borrower's
expense, environmental tests of the Premises, including without
limitation, a Phase I environmental audit, subsurface testing, soil and
ground water testing, and other tests which may physically invade the
Premises or facilities (the "Tests"). The scope of the Tests shall be
such as Lender, in its sole discretion, determines is necessary to (i)
investigate the condition of the Premises, (ii) protect the security
interests created under this Deed of Trust, or (iii) determine
compliance with Environmental Laws, the provisions of the Loan
Documents and the Environmental Indemnity and other matters relating
thereto.
(d) The foregoing licenses and authorizations are intended to be a means of
protection of Lender's security interest in the Premises and not as
participation in the management of the Premises.
27. Within 15 days after any written request by any party to this Deed of
Trust, the requested party shall certify, by a written statement duly
acknowledged, the amount of principal, interest and other Indebtedness then
owing on the Note, the terms of payment, Maturity Date and the date to
which interest has been paid. Borrower shall further certify whether any
defaults, offsets or defenses exist against the Indebtedness secured
hereby. Borrower shall also use its best efforts to furnish to Lender,
within 30 days of its request therefor, tenant estoppel letters from such
tenants of the Premises as Lender may require; which
25
Lender shall not request more than one (1) time per annum, nor more than
one (1) time prior to the date of the Securitization Transaction.
28. Each notice, consent, request, report or other communication under this
Deed of Trust or any other Loan Document (each, a "Notice"), which any
party hereto may desire or be required to give to the other shall be deemed
to be an adequate and sufficient notice if given in writing and service is
made by either (i) registered or certified mail, postage prepaid, in which
case notice shall be deemed to have been received three (3) business days
following deposit to U.S. mail; or (ii) nationally recognized overnight air
courier, next day delivery, prepaid, in which case such notice shall be
deemed to have been received one (1) business day following delivery to
such nationally recognized overnight air courier. All Notices shall be
addressed to Borrower at its address given on the first page hereof, or to
Lender at c/o Principal Capital Management, LLC, 000 Xxxxx Xxxxxx, Xxx
Xxxxxx, Xxxx 00000-0000, Attn: Commercial Real Estate Servicing, Loan No.
752672, or to such other place as any party may by written notice to the
other parties designate as a place for service of notice.
29. Lender, from time to time, may substitute another Trustee in place of the
Trustee named herein, to execute the trusts hereby created; and upon such
appointment, and without conveyance to the successor trustee, the successor
trustee shall be vested with all the title, interest, powers, duties and
trusts in the Premises hereby vested in or conferred upon Trustee herein
named. Each such appointment and substitution shall be made by written
instrument executed by the Lender containing reference to this Deed of
Trust sufficient to identify it, which instrument, when recorded in the
office of the County Recorder of the county or counties in which the
Premises is situated, shall be conclusive proof of proper appointment of
the successor trustee. The recital or statement, in any instrument executed
by Trustee in pursuance of any of said trusts, of the due authorization of
any agent of the Trustee executing the same shall for all purposes be
conclusive proof of such authorization.
30. Trustee at any time, at Trustee's option, may commence and maintain suit in
any court of competent jurisdiction and obtain the aid and direction of
said court in the execution by it of the trusts or any of them, herein
expressed or contained, and, in such suit, may obtain the orders or
decrees, interlocutory or final of said court directing the execution of
said trusts, and confirming and approving Trustee's acts, or any of them,
or any sales or conveyances made by Trustee, and adjudging the validity
thereof, and directing that the purchasers of the property sold and
conveyed be let into immediate possession thereof, and providing for orders
of court or other process requiring the Sheriff of the county in which said
property is situated to place and maintain said purchasers
26
in quiet and peaceable possession of the property so purchased by them, and
the whole thereof.
31. Borrower has had the opportunity to fully negotiate the terms hereof and
modify the draftsmanship of this Deed of Trust. Therefore, the terms of
this Deed of Trust shall be construed and interpreted without any
presumption, inference, or rule requiring construction or interpretation of
any provision of this Deed of Trust against the interest of the party
causing this Deed of Trust or any portion of it to be drafted. Borrower is
entering into this Deed of Trust freely and voluntarily without any duress,
economic or otherwise.
32. Borrower, forthwith upon request, at any and all times hereafter, at the
expense of Borrower, will cause to be made, executed, acknowledged and
delivered to Trustee, any and every deed or assurance in law which Trustee
or counsel of Trustee shall reasonably advise or require for the more sure,
effectual and satisfactory granting and confirming of said Premises unto
Trustee.
33. Trustee shall not be liable or responsible for its acts or omissions
hereunder, except for Trustee's own gross negligence or willful default, or
be liable or responsible for any acts or omissions of any agent, attorneys
or employee by him employed hereunder, if selected with reasonable care.
34. Trustee accepts this trust when this Deed of Trust executed and
acknowledged is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other deed
of trust or of any action or proceeding in which Borrower, Lender, or
Trustee shall be a party unless brought by Trustee.
35. This Deed of Trust and all provisions hereof shall inure to the benefit of
the heirs, successors and assigns of Lender and shall bind the heirs and
permitted successors and assigns of Borrower.
36. This Deed of Trust shall be governed by, and construed in accordance with,
the laws of the state of Nebraska, without regard to its conflicts of law
principles.
37. As used herein, the term "Default Rate" means a rate equal to the lesser of
(i) four percent (4%) per annum above the then applicable interest rate
payable under the Note or (ii) the maximum rate allowed by applicable law.
38. BORROWER AND LENDER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE, TO
THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY ACTIONS BROUGHT BY
BORROWER, TRUSTEE OR LENDER IN CONNECTION WITH THIS DEED OF TRUST,
27
ANY OF THE LOAN DOCUMENTS, THE INDEBTEDNESS SECURED HEREBY, OR ANY OTHER
STATEMENTS OR ACTIONS OF LENDER.
39. This Deed of Trust and the Indebtedness secured hereby is for the sole
purpose of conducting or acquiring a lawful business, professional or
commercial activity or for the acquisition or management of real or
personal property as a commercial investment, and all proceeds of such
Indebtedness shall be used for said business or commercial investment
purpose. Such proceeds will not be used for the purchase of any security
within the meaning of the Securities Exchange Act of 1934, as amended, or
any regulation issued pursuant thereto, including without limitation,
Regulations U, T and X of the Board of Governors of the Federal Reserve
System. This is not a purchase money deed of trust where a seller is
providing financing to a buyer for the payment of all or any portion of the
purchase price and the Premises secured hereby is not a residence or
homestead or used for mining, grazing, agriculture, timber or farming
purposes.
40. Unless Lender shall otherwise direct in writing, Borrower shall appear in
and defend all actions or proceedings purporting to affect the security
hereunder, or any right or power of the Lender. The Lender shall have the
right to appear in such actions or proceedings. Borrower shall save Lender
harmless from all costs and expenses, including but not limited to,
reasonable attorneys' fees and costs and costs of a title search,
continuation of abstract and preparation of survey incurred by reason of
any action, suit, proceeding, hearing, motion or application before any
court or administrative body in and to which Lender may be or become a
party by reason hereof. Such proceedings shall include but not be limited
to condemnation, bankruptcy, probate and administration proceedings, as
well as any other action, suit, proceeding, right, motion or application
wherein proof of claim is by law required to be filed or in which it
becomes necessary to defend or uphold the terms of this Deed of Trust or
the Loan Documents or otherwise purporting to affect the security hereof or
the rights or powers of Lender. All money paid or expended by Lender in
that regard, together with interest thereon from date of such payment at
the Default Rate shall be additional Indebtedness secured hereby and shall
be immediately due and payable by Borrower without notice.
41. Upon the occurrence of an Event of Default, unless the same has been
specifically waived in writing, all Rents collected or received by Borrower
shall be accepted and held for Lender in trust and shall not be commingled
with the funds and property of Borrower, but shall be promptly paid over to
Lender.
42. If more than one, all obligations and agreements of Borrower and of any
general partner of Borrower are joint and several.
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43. This Deed of Trust may be executed in counterparts, each of which shall be
deemed an original; and such counterparts when taken together shall
constitute but one agreement.
IN WITNESS WHEREOF, Borrower has caused this Deed of Trust to be duly
executed and delivered as of the date first above written.
ACI FINANCING, L.L.C.,
a Missouri limited liability company
By: MAXUS REALTY TRUST, INC.,
a Missouri corporation,
its sole member
By /s/ Xxxxxx X. Xxxxxx
29
STATE OF MISSOURI )
) ss
COUNTY OF CLAY )
On this, the 25th of July, 2000, before me, the undersigned Notary Public,
personally appeared, Xxx Xxxxxx, President of MAXUS REALTY TRUST, INC., a
Missouri corporation, and sole member of ACI FINANCING L.L.C., a Missouri
limited liability company, who after first being placed upon his oath, did swear
that he executed the foregoing instrument, and that he acknowledged that he
executed the same as his free act and deed on behalf of the corporation and
limited liability company in his capacity as President of the Corporation.
In witness whereof I hereunto set my hand and official seal.
/s/ Xxxxxxxxx Xxxxxxx
Notary Public Notary Seal
State of Missouri
Platte County
My Commission Expires: Oct. 5, 2002
EXHIBIT A
(TO BE ATTACHED)
EXHIBIT B
(TO BE ATTACHED)
