Exhibit 10.20
Following recording, return to: Xxxx X. Xxxxxx, Xxxxxx Xxxxxxx Law Firm, 000
Xxxxx 00/xx/ Xxxxxx, Xxxxx 000, Xxxxx Xxxxxxxx, 00000, tel. (000) 000-0000
DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS,
AND FIXTURE FILING
THIS DEED OF TRUST (herein "Instrument") is made as of May 12, 2003, among
the Grantor, Professional Veterinary Products, Ltd., a Nebraska corporation,
whose address is 00000 Xxxxx 000/xx/ Xxxxxx, Xxxxx, Xxxxxxxx 00000 (herein
"Borrower"), in favor of U.S. Bank National Association, whose address is 0000
Xxxxxx Xxxxxx, Xxxxx, Xxxxxxxx, 00000 (herein "Trustee"), for the benefit of the
Beneficiary, U.S. Bank National Association, a national banking association,
whose address is 0000 Xxxxxx Xxxxxx, Xxxxx, Xxxxxxxx, 00000 (herein "Bank").
Borrower, in consideration of the indebtedness herein recited and the trust
herein created, irrevocably grants, conveys and assigns to Trustee, in trust,
with power of sale, all of Borrower s estate, right, title and interest, now
owned or hereafter acquired, including any reversion or remainder interest, in
the real property located in the County of Sarpy, State of Nebraska described on
Exhibit A attached hereto and incorporated herein including all heretofore or
hereafter vacated alleys and streets abutting the property, and all easements,
rights, appurtenances, tenements, hereditaments, rents, royalties, mineral, oil
and gas rights and profits, water, water rights, and water stock appurtenant to
the property (collectively "Premises");
TOGETHER with all of Borrower's estate, right, title and interest, now
owned or hereafter acquired, in:
(a) all buildings, structures, improvements, parking areas, landscaping,
equipment, fixtures and articles of property now or hereafter erected on,
attached to, or used or adapted for use in the operation of the Premises;
including but without being limited to, all heating, air conditioning and
incinerating apparatus and equipment; all boilers, engines, motors, dynamos,
generating equipment, piping and plumbing fixtures, water heaters, ranges,
cooking apparatus and mechanical kitchen equipment, refrigerators, freezers,
cooling, ventilating, sprinkling and vacuum cleaning systems, fire extinguishing
apparatus, gas and electric fixtures, carpeting, floor
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coverings, underpadding, elevators, escalators, partitions, mantels, built-in
mirrors, window shades, blinds, draperies, screens, storm sash, awnings, signs,
furnishings of public spaces, halls and lobbies, and shrubbery and plants, and
including also all interest of any owner of the Premises in any of such items
hereafter at any time acquired under conditional sale contract, chattel mortgage
or other title retaining or security instrument, all of which property mentioned
in this clause (a) shall be deemed part of the realty covered by this Instrument
and not severable wholly or in part without material injury to the freehold of
the Premises (all of the foregoing together with replacements and additions
thereto are referred to herein as "Improvements"); and
(b) all compensation, awards, damages, rights of action and proceeds,
including interest thereon and/or the proceeds of any policies of insurance
therefor, arising out of or relating to a (i) taking or damaging of the Premises
or Improvements thereon by reason of any public or private improvement,
condemnation proceeding (including change of grade), sale or transfer in lieu of
condemnation, or fire, earthquake or other casualty, or (ii) any injury to or
decrease in the value of the Premises or the Improvements for any reason
whatsoever;
(c) return premiums or other payments upon any insurance any time provided
for the benefit of or naming Bank, and refunds or rebates of taxes or
assessments on the Premises;
(d) all the right, title and interest of Borrower in, to and under all
written and oral leases and rental agreements (including extensions, renewals
and subleases; all of the foregoing shall be referred to collectively herein as
the "Leases") now or hereafter affecting the Premises including, without
limitation, all rents, issues, profits and other revenues and income therefrom
and from the renting, leasing or bailment of Improvements and equipment, all
guaranties of tenants' performance under the Leases, and all rights and claims
of any kind that Borrower may have against any tenant under the Leases or in
connection with the termination or rejection of the Leases in a bankruptcy or
insolvency proceeding; and the leasehold estate in the event this Instrument is
on a leasehold;
(e) plans, specifications, contracts and agreements relating to the design
or construction of the Improvements; Borrower's rights under any payment,
performance, or other bond in connection with the design or construction of the
Improvements; all landscaping and construction materials, supplies, and
equipment used or to be used or consumed in connection with construction of the
Improvements, whether stored on the Premises or at some other location; and
contracts, agreements, and purchase orders with contractors, subcontractors,
suppliers, and materialmen incidental to the design or construction of the
Improvements;
(f) all contracts, accounts, rights, claims or causes of action pertaining
to or affecting the Premises or the Improvements, including, without limitation,
all options or contracts to acquire other property for use in connection with
operation or development of the Premises or Improvements, management contracts,
service or supply contracts, deposits, bank accounts, general intangibles
(including without limitation trademarks, trade names and symbols), permits,
licenses, franchises and certificates, and all commitments or agreements, now or
hereafter in existence, intended by the obligor thereof to provide Borrower with
proceeds to satisfy the loan
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evidenced hereby or improve the Premises or Improvements, and the right to
receive all proceeds due under such commitments or agreements including
refundable deposits and fees;
(g) all books, records, surveys, reports and other documents related to
the Premises, the Improvements, the Leases, or other items of collateral
described herein; and
(h) all additions, accessions, replacements, substitutions, proceeds and
products of the real and personal property, tangible and intangible, described
herein.
All of the foregoing described collateral is exclusive of any furniture,
furnishings or trade fixtures owned and supplied by tenants of the Premises. The
Premises, the Improvements, the Leases and all of the rest of the foregoing
property are herein referred to as the "Property."
TO SECURE TO BANK (a) the repayment of the indebtedness evidenced by
Borrower's term promissory note dated of even date herewith in the principal sum
of FOUR MILLION AND NO/100 DOLLARS ($4,000,000.00), with interest thereon as set
forth in the note, and all renewals, extensions and modifications thereof
(herein the "Note"), and with a final maturity date of May 1, 2008; (b) the
repayment of any future advances, with interest thereon, made by Bank to
Borrower pursuant to Section 30 hereof (herein "Future Advances"); (c) the
payment of all other sums, with interest thereon, advanced in accordance
herewith to protect the security of this Instrument or to fulfill any of
Borrower's obligations hereunder or under the other Loan Documents (as defined
below); (d) the performance of the covenants and agreements of Borrower
contained herein or in the other Loan Documents; (e) the repayment of all sums
now or hereafter owing to Bank by Borrower pursuant to any instrument which
recites that it is secured hereby, and (f) the repayment of all sums now or
hereafter owing to Bank under or in connection with the revolving note dated of
even date herewith in the principal sum of SEVENTEEN MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($17,500,000.00). The indebtedness and obligations
described in clauses (a)-(f) above are collectively referred to herein as the
"Indebtedness." The Note, this Instrument, and all other documents evidencing,
securing or guarantying the Indebtedness, as the same may be modified or amended
from time to time, are referred to herein as the "Loan Documents." The terms of
the Note secured hereby may provide that the interest rate or payment terms or
balance due may be indexed, adjusted, renewed, or renegotiated from time to
time, and this Instrument shall continue to secure the Note notwithstanding any
such indexing, adjustment, renewal or renegotiation.
Borrower represents and warrants that Borrower has good, marketable and
insurable title to, and has the right to grant, convey and assign an
indefeasible fee simple estate in, the Premises, Improvements, rents and leases
(or, if this Instrument is on a leasehold, good, marketable and insurable title
to, and the right to convey the leasehold estate and that the ground lease is in
full force and effect without modification except as noted above and without
default on the part of either lessor or lessee thereunder), and the right to
convey the other Property, that the Property is unencumbered except as disclosed
in writing to and approved by Bank prior to the date hereof, and that Borrower
will warrant and forever defend unto Trustee the title to the Property against
all claims and demands, subject only to the permitted exceptions set forth in
Exhibit B attached hereto.
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Borrower represents, warrants, covenants and agrees for the benefit of Bank
as follows:
Section 1. Payment of Principal and Interest. Borrower shall promptly pay
when due the principal of and interest on the Indebtedness, any prepayment and
other charges provided in the Loan Documents and all other sums secured by this
Instrument.
Section 2. Funds for Taxes, Insurance and Other Charges. Upon the
occurrence of an Event of Default (hereinafter defined), and at Bank's sole
option at any time thereafter, Borrower shall pay in addition to each monthly
payment on the Note, one-twelfth of the annual real estate taxes, insurance
premiums, assessments, water and sewer rates, ground rents and other charges
(herein "Impositions") payable with respect to the Property (as estimated by
Bank in its sole discretion), to be held by Bank without interest to Borrower,
for the payment of such obligations. If the amount of such additional payments
held by Bank ("Funds") at the time of the annual accounting thereof shall exceed
the amount deemed necessary by Bank to provide for the payment of Impositions as
they fall due, such excess shall be at Borrower's option, either repaid to
Borrower or credited to Borrower on the next monthly installment or installments
of Funds due. If at any time the amount of the Funds held by Bank shall be less
than the amount deemed necessary by Bank to pay Impositions as they fall due,
Borrower shall pay to Bank any amount necessary to make up the deficiency within
thirty (30) days after notice from Bank to Borrower requesting payment thereof.
Upon Borrower's breach of any covenant or agreement of Borrower in this
Instrument, Bank may apply, in any amount and in any order as Bank shall
determine in Bank's sole discretion, any Funds held by Bank at the time of
application (i) to pay Impositions which are now or will hereafter become due,
or (ii) as a credit against sums secured by this Instrument. Upon payment in
full of all sums secured by this Instrument, Bank shall refund to Borrower any
Funds held by Bank.
Section 3. Application of Payments. Unless applicable law provides
otherwise, each complete installment payment received by Bank from Borrower
under the Note or this Instrument shall be applied by Bank first in payment of
amounts payable to Bank by Borrower under Section 2 hereof, then to interest
payable on the Note, then to principal of the Note, and then to interest and
principal on any Future Advances in such order as Bank, at Bank's sole
discretion, shall determine. Upon Borrower's breach of any covenant or agreement
of Borrower in this Instrument, Bank may apply, in any amount and in any order
as Bank shall determine in Bank's sole discretion, any payments received by Bank
under the Note or this Instrument. Any partial payment received by Bank shall,
at Bank's option, be held in a non-interest bearing account until Bank receives
funds sufficient to equal a complete installment payment.
Section 4. Charges, Liens. Borrower shall pay all Impositions attributable
to the Property in the manner provided under Section 2 hereof or, if not paid in
such manner, by Borrower making payment, when due, directly to the payee
thereof, or in such other manner as Bank may designate in writing. If requested
by Bank, Borrower shall promptly furnish to Bank all notices of Impositions
which become due, and in the event Borrower shall make payment directly,
Borrower shall promptly furnish to Bank receipts evidencing such payments.
Borrower shall promptly discharge any lien which has, or may have, priority over
or equality with, the lien
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of this Instrument, and Borrower shall pay, when due, the claims of all persons
supplying labor or materials to or in connection with the Property. Without
Bank's prior written permission, Borrower shall not allow any lien inferior to
this Instrument to be perfected against the Property. If any lien inferior to
this Instrument is filed against the Property without Bank's prior written
permission and without the consent of Borrower, Borrower shall, within thirty
(30) days after receiving notice of the filing of such lien, cause such lien to
be released of record and deliver evidence of such release to Bank.
Section 5. Insurance. Borrower shall obtain and maintain the following
types of insurance upon and relating to the Property:
(a) "All Risk" property and fire insurance (with extended coverage
endorsement including malicious mischief and vandalism) in an amount not less
than the full replacement value of the Property (with a deductible not to exceed
$100,000, naming Bank under a lender's loss payee endorsement;
(b) Comprehensive general liability insurance in an amount not less than
$2,000,000.00 insuring against personal injury, death and property damage and
naming Bank as additional insured; and
(c) Such other types of insurance or endorsements to existing insurance as
may reasonably be required from time to time by Bank.
Upon each reasonable request of Bank, Borrower shall increase the coverages
under any of the insurance policies required to be maintained hereunder or
otherwise modify such policies in accordance with Bank's request. All of the
insurance policies required hereunder shall be issued by corporate insurers
licensed to do business in the state in which the Property is located and rated
A minus:X or better by A.M. Best Company, and shall be in form acceptable to
Bank. If and to the extent that the Property is located within an area that has
been or is hereafter designated or identified as an area having special flood
hazards by the Department of Housing and Urban Development or such other
official as shall from time to time be authorized by federal or state law to
make such designation pursuant to any national or state program of flood
insurance, Borrower shall carry flood insurance with respect to the Property in
amounts not less than the maximum limit of coverage then available with respect
to the Property or the amount of the Indebtedness, whichever is less.
Certificates of all insurance required to be maintained hereunder shall be
delivered to Bank, along with evidence of payment in full of all premiums
required thereunder, contemporaneously with Borrower's execution of this
Instrument. All such certificates shall be in form acceptable to Bank and shall
require the insurance company to give to Bank at least thirty (30) days' prior
written notice before canceling the policy for any reason or materially amending
it. Certificates evidencing all renewal and substitute policies of insurance
shall be delivered to Bank, along with evidence of the payment in full of all
premiums required thereunder, prior to termination of the policies being renewed
or substituted. If any loss shall occur at any time when Borrower shall be in
default hereunder, Bank shall be entitled to the benefit of all insurance
policies held or maintained by Borrower, to the same extent as if same had been
made payable to Bank, and upon foreclosure hereunder, Bank shall become the
owner
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thereof. Bank shall have the right, but not the obligation, to make premium
payments, at Borrower's expense, to prevent any cancellation, endorsement,
alteration or reissuance of any policy of insurance maintained by Borrower, and
such payments shall be accepted by the insurer to prevent same.
If any act or occurrence of any kind or nature (including any casualty for
which insurance was not obtained or obtainable) shall result in damage to or
destruction of the Property (such event being called a "Loss"), Borrower will
give prompt written notice thereof to Bank. All insurance proceeds paid or
payable in connection with any Loss shall be paid to Bank. If (i) no Event of
Default has occurred and is continuing hereunder, (ii) Borrower provides
evidence satisfactory to Bank of its ability to pay all amounts becoming due
under the Note during the pendency of any restoration or repairs to or
replacement of the Property, (iii) the available insurance proceeds are, in
Bank's judgment, sufficient to fully and completely restore, repair or replace
the Property, and (iv) Borrower provides evidence satisfactory to Bank that none
of the tenants of the Property will terminate their lease agreements as a result
of either the Loss or the repairs to or replacement of the Property, Borrower
shall have the right to apply all insurance proceeds received in connection with
such Loss either (a) to restore, repair, replace and rebuild the Property as
nearly as possible to its value, condition and character immediately prior to
such Loss, or (b) to the payment of the Indebtedness in such order as Bank may
elect. If an Event of Default has occurred and is continuing hereunder at the
time of such Loss, if Bank determines that Borrower will be unable to pay all
amounts becoming due under the Note during the pendency of any restoration or
repairs to or replacement of the Property, if the available insurance proceeds
are insufficient, in Bank's judgment, to fully and completely restore, repair or
replace the Property or if Bank believes that one or more tenants of the
Property will terminate their lease agreements as a result of either the Loss or
the repairs to or replacement of the Property, then all of the insurance
proceeds payable with respect to such Loss will be applied to the payment of the
Indebtedness, or if so instructed by Bank, Borrower will promptly, at Borrower's
sole cost and expense and regardless of whether sufficient insurance proceeds
shall be available, commence to restore, repair, replace and rebuild the
Property as nearly as possible to its value, condition, character immediately
prior to such Loss. Borrower shall diligently prosecute any restoration, repairs
or replacement of the Property undertaken by or on behalf of Borrower pursuant
to this Section 5. All such work shall be conducted pursuant to written
contracts approved by Bank in writing. Notwithstanding anything contained herein
to the contrary, in the event the insurance proceeds received by Bank following
any Loss are insufficient in Bank's judgment to fully and completely restore,
repair or replace the Property, and if Borrower has complied with all of the
other conditions described in this Section 5, Borrower may elect to restore,
repair or replace the Property if it first deposits with Bank such additional
sums as Bank determines are necessary in order to fully and completely restore,
repair or replace the Property. In the event any insurance proceeds remain
following the restoration, repair or replacement of the Property, such proceeds
shall be applied to the Indebtedness in such order as Bank may elect.
Section 6. Preservation and Maintenance of Property; Leaseholds. Borrower
(a) shall not commit waste or permit impairment or deterioration of the
Property, (b) shall not abandon the Property, (c) shall restore or repair
promptly and in a good and workmanlike manner all or
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any part of the Property to the equivalent of its original condition, or such
other condition as Bank may approve in writing, in the event of any damage,
injury or loss thereto, whether or not insurance proceeds are available to cover
in whole or in part the costs of such restoration or repair, (d) shall keep the
Property, including all improvements, fixtures, equipment, machinery and
appliances thereon, in good repair and shall replace fixtures, equipment,
machinery and appliances on the Property when necessary to keep such items in
good repair, (e) shall comply with all laws, ordinances, regulations and
requirements of any governmental body applicable to the Property, (f) if all or
part of the Property is for rent or lease, then Bank, at its option after the
occurrence of an Event of Default, may require Borrower to provide for
professional management of the Property by a property manager satisfactory to
Bank pursuant to a contract approved by Bank in writing, unless such requirement
shall be waived by Bank in writing, (g) shall generally operate and maintain the
Property in a manner to ensure maximum rentals, and (h) shall give notice in
writing to Bank of and, unless otherwise directed in writing by Bank, appear in
and defend any action or proceeding purporting to affect the Property, the
security of this Instrument or the rights or powers of Bank hereunder. Neither
Borrower nor any tenant or other person, without the written approval of Bank,
shall remove, demolish or alter any improvement now existing or hereafter
erected on the Property or any fixture, equipment, machinery or appliance in or
on the Property except when incident to the replacement of fixtures, equipment,
machinery and appliances with items of like kind.
Borrower represents, warrants and covenants that the Property is and shall
be in compliance with the Americans with Disabilities Act of 1990 and all of the
regulations promulgated thereunder, as the same may be amended from time to
time.
Section 7. Use of Property. Unless required by applicable law or unless
Bank has otherwise agreed in writing, Borrower shall not allow changes in the
use for which all or any part of the Property was intended at the time this
Instrument was executed. Borrower shall not, without Bank's prior written
consent, (i) initiate or acquiesce in a change in the zoning classification
(including any variance under any existing zoning ordinance applicable to the
Property), (ii) permit the use of the Property to become a non-conforming use
under applicable zoning ordinances, (iii) file any subdivision or parcel map
affecting the Property, or (iv) amend, modify or consent to any easement or
covenants, conditions and restrictions pertaining to the Property.
Section 8. Protection of Bank's Security. If Borrower fails to perform any
of the covenants and agreements contained in this Instrument, or if any action
or proceeding is commenced which affects the Property or title thereto or the
interest of Bank therein, including, but not limited to, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then Bank at Bank's option may make such appearances,
disburse such sums and take such action as Bank deems necessary, in its sole
discretion, to protect Bank's interest, including, but not limited to, (i)
disbursement of attorneys' fees, (ii) entry upon the Property to make repairs,
(iii) procurement of satisfactory insurance as provided in Section 5 hereof, and
(iv) if this Instrument is on a leasehold, exercise of any option to renew or
extend the ground lease on behalf of Borrower and the curing of any default of
Borrower in the terms and conditions of the ground lease.
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Any amounts disbursed by Bank pursuant to this Section 8, with interest
thereon, shall become additional Indebtedness of Borrower secured by this
Instrument. Unless Borrower and Bank agree to other terms of payment, such
amounts shall be immediately due and payable and shall bear interest from the
date of disbursement at the highest rate which may be collected from Borrower
under applicable law or, at Bank's option, the rate stated in the Note. Borrower
hereby covenants and agrees that Bank shall be subrogated to the lien of any
mortgage or other lien discharged, in whole or in part, by the Indebtedness.
Nothing contained in this Section 8 shall require Bank to incur any expense or
take any action hereunder.
Section 9. Inspection. Upon 24 hours advance notice to Borrower, Bank may
make or cause to be made reasonable entries upon the Property to inspect the
interior and exterior thereof.
Section 10. Financial Data. Borrower will furnish to Bank, and will cause
each guarantor of the Indebtedness to furnish to Bank on request all financial
information and reports that Bank may from time to time reasonably request,
including, if Bank so requires, income tax returns of Borrower and financial
statements of any tenant of the Property designated by Bank.
Section 11. Condemnation. If the Property, or any part thereof, shall be
condemned for any reason, including without limitation fire or earthquake
damage, or otherwise taken for public or quasi-public use under the power of
eminent domain, or be transferred in lieu thereof, all damages or other amounts
awarded for the taking of, or injury to, the Property shall be paid to Bank who
shall have the right, in its sole and absolute discretion, to apply the amounts
so received against (a) the costs and expenses of Bank or Trustee, including
reasonable attorneys' fees incurred in connection with collection of such
amounts, and (b) the balance against the Indebtedness; provided, however, that
if (i) no Event of Default shall have occurred and be continuing hereunder, (ii)
Borrower provides evidence satisfactory to Bank of its ability to pay all
amounts becoming due under the Note during the pendency of any restoration or
repairs to or replacement of the Property, and (iii) Bank determines, in its
sole discretion, that the proceeds of such award are sufficient to restore,
repair, replace and rebuild the Property as nearly as possible to its value,
condition and character immediately prior to such taking (or, if the proceeds of
such award are insufficient for such purpose, if Borrower provides additional
sums to Bank's satisfaction so that the aggregate of such sums and the proceeds
of such award will be sufficient for such purpose). All work to be performed in
connection therewith shall be pursuant to a written contract therefor, which
contract shall be subject to the prior approval of Bank. To the extent that any
funds remain after the Property has been so restored and repaired, the same
shall be applied against the Indebtedness in such order as Bank may elect. To
enforce its rights hereunder, Bank shall be entitled to participate in and
control any condemnation proceedings and to be represented therein by counsel of
its own choice, and Borrower will deliver, or cause to be delivered to Bank such
instruments as may be requested by it from time to time to permit such
participation. In the event Bank, as a result of any such judgment, decree or
award, believes that the payment or performance of any of the Indebtedness is
impaired, Bank may declare all of the Indebtedness immediately due and payable.
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Section 12. Borrower and Lien not Released. From time to time, Bank may, at
Bank's option, without giving notice to or obtaining the consent of Borrower,
Borrower's successors or assigns or of any junior lienholder or guarantors,
without liability on Bank's part and notwithstanding Borrower's breach of any
covenant or agreement of Borrower in this Instrument, extend the time for
payment of the Indebtedness or any part thereof, reduce the payments thereon,
release anyone liable on any of the Indebtedness, accept an extension or
modification or renewal note or notes therefor, modify the terms and time of
payment of the Indebtedness, release from the lien of this Instrument any part
of the Property, take or release other or additional security, reconvey any part
of the Property, consent to any map or plan of the Property, consent to the
granting of any easement, join in any extension or subordination agreement, and
agree in writing with Borrower to modify the rate of interest or period of
amortization of the Note or decrease the amount of the monthly installments
payable thereunder. Any actions taken by Bank pursuant to the terms of this
Section 12 shall not affect the obligation of Borrower or Borrower's successors
or assigns to pay the sums secured by this Instrument and to observe the
covenants of Borrower contained herein, shall not affect the guaranty of any
person, corporation, partnership or other entity for payment of the
Indebtedness, and shall not affect the lien or priority of the lien hereof on
the Property. Borrower shall pay Bank a service charge, together with such title
insurance premiums and attorneys' fees as may be incurred at Bank's option, for
any such action if taken at Borrower's request.
Section 13. Forbearance by Bank not a Waiver. Any forbearance by Bank in
exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any other right or
remedy. The acceptance by Bank of payment of any sum secured by this Instrument
after the due date of such payment shall not be a waiver of Bank's right to
either require prompt payment when due of all other sums so secured or to
declare a default for failure to make prompt payment. The procurement of
insurance or the payment of taxes or other liens or charges by Bank shall not be
a waiver of Bank's right to accelerate the maturity of the Indebtedness secured
by this Instrument, nor shall Bank's receipt of any awards, proceeds or damages
under Sections 5 and 11 hereof operate to cure or waive Borrower's default in
payment of sums secured by this Instrument.
Section 14. Uniform Commercial Code Security Agreement. This Instrument is
intended to be a security agreement pursuant to the Uniform Commercial Code for
any of the items specified above as part of the Property which, under applicable
law, may be subject to a security interest pursuant to the Uniform Commercial
Code, and Borrower hereby grants and conveys to Bank a first and prior security
interest in all of the Property that constitutes personalty, whether now owned
or hereafter acquired. Borrower agrees that Bank may file this Instrument, or a
reproduction thereof, in the real estate records or other appropriate index, as
a financing statement for any of the items specified above as part of the
Property. Any reproduction of this Instrument or of any other security agreement
or financing statement shall be sufficient as a financing statement. In
addition, Borrower agrees to execute and deliver to Bank, upon Bank's request,
any financing statements, as well as extensions, renewals and amendments
thereof, and reproductions of this Instrument in such form as Bank may require
to perfect a security interest with respect to the foregoing items. Borrower
shall pay all costs of filing such financing statements and any extensions,
renewals, amendments and releases thereof, and shall
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pay all costs and expenses of any record searches for financing statements Bank
may require. Without the prior written consent of Bank, Borrower shall not
create or suffer to be created pursuant to the Uniform Commercial Code any other
security interest in said items, including replacements and additions thereto.
Upon Borrower's breach of any covenant or agreement of Borrower contained in
this Instrument, including the covenants to pay when due all sums secured by
this Instrument, Bank shall have the remedies of a secured party under the
Uniform Commercial Code, and Bank may also invoke the remedies provided in
Section 26 of this Instrument as to such items. In exercising any of said
remedies Bank may proceed against the items of real property and any items of
personal property specified above separately or together and in any order
whatsoever, without in any way affecting the availability of Bank's remedies
under the Uniform Commercial Code or of the remedies provided in Section 26 of
this Instrument. Within ten (10) days following any request therefor by Bank,
Borrower shall prepare and deliver to Bank a written inventory specifically
listing all of the personal property covered by the security interest herein
granted, which inventory shall be certified by Borrower as being true, correct,
and complete.
Section 15. Leases of the Property. As used in this Section 15, the word
"Lease" shall include subleases if this Instrument is on a leasehold. Borrower
shall comply with and observe Borrower's obligations as landlord under all
Leases of the Property or any part thereof. All Leases now or hereafter entered
into will be in form and substance subject to the approval of Bank. All Leases
of the Property shall specifically provide that such Leases are subordinate to
this Instrument; that the tenant attorns to Bank, such attornment to be
effective upon Bank's acquisition of title to the Property; that the tenant
agrees to execute such further evidences of attornment as Bank may from time to
time request; that the attornment of the tenant shall not be terminated by
foreclosure; and that Bank may, at Bank's option, accept or reject such
attornments. Borrower shall not, without Bank's written consent, request or
consent to the subordination of any Lease of all or any part of the Property to
any lien subordinate to this Instrument. If Borrower becomes aware that any
tenant proposes to do, or is doing, any act or thing which may give rise to any
right of set-off against rent, Borrower shall (i) take such steps as shall be
reasonably calculated to prevent the accrual of any right to a set-off against
rent, (ii) immediately notify Bank thereof in writing and of the amount of said
setoffs, and (iii) within ten (10) days after such accrual, reimburse the tenant
who shall have acquired such right to set-off or take such other steps as shall
effectively discharge such setoff and as shall assure that rents thereafter due
shall continue to be payable without set-off or deduction. Upon Bank's receipt
of notice of the occurrence of any default or violation by Borrower of any of
its obligations under the Leases, Bank shall have the immediate right, but not
the duty or obligation, without prior written notice to Borrower or to any third
party, to enter upon the Property and to take such actions as Bank may deem
necessary to cure the default or violation by Borrower under the Leases. The
costs incurred by Bank in taking any such actions pursuant to this paragraph
shall become part of the Indebtedness, shall bear interest at the rate provided
in the Note, and shall be payable by Borrower to Bank on demand. Bank shall have
no liability to Borrower or to any third party for any actions taken by Bank or
not taken pursuant to this paragraph.
10
Section 16. Remedies Cumulative. Each remedy provided in this Instrument is
distinct and cumulative to all other rights or remedies under this Instrument or
afforded by law or equity, and may be exercised concurrently, independently, or
successively, in any order whatsoever.
Section 17. Transfers of the Property or Beneficial Interests in Borrower;
Assumption. Bank may, at its option, declare all sums secured by this Instrument
to be immediately due and payable, and Bank may invoke any remedies permitted by
Section 26 of this Instrument, if title to the Property is changed without the
prior written consent of Bank, which consent shall be at Bank's sole discretion.
Any transfer of any interest in the Property or in the income therefrom, by
sale, lease (except for leases to tenants in the ordinary course of managing
income property which are approved by Bank pursuant to Section 15 of this
Instrument), contract, mortgage, deed of trust, further encumbrance or otherwise
(including any such transfers as security for additional financing of the
Property), and any change in or transfer, assignment, hypothecation or pledge of
any of the ownership interests in Borrower (including any change in or transfer,
assignment, hypothecation or pledge of any of the ownership interests of any
legal entities which comprise or control Borrower), except transfers and changes
in ownership by devise or descent, shall be considered a change of title. Bank
shall have the right to condition its consent to any proposed sale or transfer
described in this Section 17 upon, among other things, Bank's approval of the
transferee's creditworthiness and management ability, and the transferee's
execution, prior to the sale or transfer, of a written assumption agreement
containing such terms as Bank may require, including, if required by Bank, the
imposition of an assumption fee of one percent (1%) of the then outstanding
balance of the Indebtedness. Consent by Bank to one transfer of the Property
shall not constitute consent to subsequent transfers or waiver of the provisions
of this Section 17. No transfer by Borrower shall relieve Borrower of liability
for payment of the Indebtedness.
Section 18. Notice. Except for any notice required under applicable law to
be given in another manner, any and all notices, elections, demands, or requests
permitted or required to be made under this Instrument or under the Note shall
be in writing, signed by the party giving such notice, election, demand or
request, and shall be delivered personally, by telegram, or sent by registered,
certified, or Express United States mail, postage prepaid, or by Federal Express
or similar service requiring a receipt, to the other party at the address stated
above, or to such other party and at such other address within the United States
of America as any party may designate in writing as provided herein. The date of
receipt of such notice, election, demand or request shall be the earliest of (i)
the date of actual receipt, (ii) three (3) days after the date of mailing by
registered or certified mail, (iii) one (1) day after the date of mailing by
Express Mail or the delivery (for redelivery) to Federal Express or another
similar service requiring a receipt, or (iv) the date of personal delivery (or
refusal upon presentation for delivery).
Section 19. Successors and Assigns Bound; Joint and Several Liability;
Agents; Captions. The covenants and agreements herein contained shall bind, and
the rights hereunder shall inure to, the respective heirs, successors and
assigns of Bank and Borrower, subject to the provisions of Section 17 hereof. If
Borrower is comprised of more than one person or entity, whether as individuals,
partners, partnerships or corporations, each such person or entity shall be
jointly and severally liable for Borrower s obligations hereunder. In exercising
any rights
11
hereunder or taking any actions provided for herein, Bank may act through its
employees, agents or independent contractors as authorized by Bank. The captions
and headings of the sections of this Instrument are for convenience only and are
not to be used to interpret or define the provisions hereof.
Section 20. Waiver of Statute of Limitations. Borrower hereby waives the
right to assert any statute of limitations as a bar to the enforcement of the
lien of this Instrument or to any action brought to enforce the Note or any
other obligation secured by this Instrument.
Section 21. Waiver of Marshalling. Notwithstanding the existence of any other
security interests in the Property held by Bank or by any other party, Bank
shall have the right to determine the order in which any or all of the Property
shall be subjected to the remedies provided herein. Bank shall have the right to
determine the order in which any or all portions of the Indebtedness secured
hereby are satisfied from the proceeds realized upon the exercise of the
remedies provided herein. Borrower, any party who consents to this Instrument
and any party who now or hereafter acquires a security interest in the Property
and who has actual or constructive notice hereof hereby waives any and all right
to require the marshalling of assets in connection with the exercise of any of
the remedies permitted by applicable law or provided herein.
Section 22. Hazardous Waste. Borrower has furnished to Bank a the Bank's
Environmental Risk Assessment Questionnaire dated May 2, 2003, prepared by
Borrower (the "Report"). Except as disclosed to Bank in the Report, Borrower has
received no notification of any kind suggesting that the Property or any
adjacent property is or may be contaminated with any hazardous waste or
materials or is or may be required to be cleaned up in accordance with any
applicable law or regulation; and Borrower further represents and warrants that,
except as previously disclosed to Bank in writing, to the best of its knowledge
as of the date hereof, there are no hazardous waste or materials located in, on
or under the Property or any adjacent property, or incorporated in any
Improvements, nor has the Property or any adjacent property ever been used as a
landfill or a waste disposal site, or a manufacturing, handling, storage,
distribution or disposal facility for hazardous waste or materials. As used
herein, the term "hazardous waste or materials" includes any substance or
material defined in or designated as hazardous or toxic wastes, hazardous or
toxic material, a hazardous, toxic or radioactive substance, or other similar
term, by any federal, state or local statute, regulation or ordinance now or
hereafter in effect. Borrower shall promptly comply with all statutes,
regulations and ordinances, and with all orders, decrees or judgments of
governmental authorities or courts having jurisdiction, relating to the use,
collection, treatment, disposal, storage, control, removal or cleanup of
hazardous waste or materials in, on or under the Property or any adjacent
property, or incorporated in any Improvements, at Borrower's expense. In the
event that Bank at any time has a reasonable belief that the Property is not
free of all hazardous waste or materials or that Borrower has violated any
applicable environmental law with respect to the Property, then immediately,
upon request by Bank, Borrower shall obtain and furnish to Bank, at Borrower's
sole cost and expense, an environmental audit and inspection of the Property
from an expert satisfactory to Bank. In the event that Borrower fails to
immediately obtain such audit or inspection, Bank or its agents may perform or
obtain such audit or inspection at Borrower's sole cost and expense. Bank may,
but
12
is not obligated to, enter upon the Property and take such actions and incur
such costs and expenses to effect such compliance as it deems advisable to
protect its interest in the Property; and whether or not Borrower has actual
knowledge of the existence of hazardous waste or materials on the Property or
any adjacent property as of the date hereof, Borrower shall reimburse Bank as
provided in Section 23 below for the full amount of all costs and expenses
incurred by Bank prior to Bank acquiring title to the Property through
foreclosure or acceptance of a deed in lieu of foreclosure, in connection with
such compliance activities. Neither this provision nor any of the other Loan
Documents shall operate to put Bank in the position of an owner of the Property
prior to any acquisition of the Property by Bank. The rights granted to Bank
herein and in the other Loan Documents are granted solely for the protection of
Bank's lien and security interest covering the Property, and do not grant to
Bank the right to control Borrower's actions, decisions or policies regarding
hazardous waste or materials.
Section 23. Advances, Costs and Expenses. Borrower shall pay within ten
(10) days after written demand from Bank all sums advanced by Bank and all costs
and expenses incurred by Bank in taking any actions pursuant to the Loan
Documents including attorneys' fees and disbursements, accountants' fees,
appraisal and inspection fees and the costs for title reports and guaranties,
together with interest thereon at the rate applicable under the Note after an
Event of Default from the date such costs were advanced or incurred. All such
costs and expenses incurred by Bank, and advances made, shall constitute
advances under this Instrument to protect the Property and shall be secured by
and have the same priority as the lien of this Instrument. If Borrower fails to
pay any such advances, costs and expenses and interest thereon, Bank may apply
any undisbursed loan proceeds to pay the same, and, without foreclosing the lien
of this Instrument, may at its option commence an independent action against
Borrower for the recovery of the costs, expenses and/or advances, with interest,
together with costs of suit, costs of title reports and guaranty of title,
disbursements of counsel and reasonable attorneys' fees incurred therein or in
any appeal therefrom.
Section 24. Assignment of Leases and Rents. Borrower, for good and valuable
consideration, the receipt of which is hereby acknowledged, to secure the
Indebtedness, does hereby absolutely and unconditionally grant, bargain, sell,
transfer, assign, convey, set over and deliver unto Bank all right, title and
interest of Borrower in, to and under the Leases of the Property, whether now in
existence or hereafter entered into, and all guaranties, amendments, extensions
and renewals of said Leases and any of them, and all rents, income and profits
which may now or hereafter be or become due or owing under the Leases, and any
of them, or on account of the use of the Property.
Borrower represents, warrants, covenants and agrees with Bank as follows:
(a) The sole ownership of the entire lessor's interest in the Leases is
vested in Borrower, and Borrower has not, and shall not, perform any acts or
execute any other instruments which might prevent Bank from fully exercising its
rights with respect to the Leases under any of the terms, covenants and
conditions of this Instrument.
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(b) The Leases are and shall be valid and enforceable in accordance with
their terms and have not been and shall not be altered, modified, amended,
terminated, canceled, renewed or surrendered except as approved in writing by
Bank. The terms and conditions of the Leases have not been and shall not be
waived in any manner whatsoever except as approved in writing by Bank.
(c) Borrower shall not materially alter the term or the amount of rent
payable under any Lease without prior written notice to Bank and Bank's consent,
which shall not be unreasonably withheld.
(d) To the best of Borrower's knowledge, there are no defaults now
existing under any of the Leases and there exists no state of facts which, with
the giving of notice or lapse of time or both, would constitute a default under
any of the Leases.
(e) Borrower shall give prompt written notice to Bank of any notice
received by Borrower claiming that a default has occurred under any of the
Leases on the part of Borrower, together with a complete copy of any such
notice.
(f) Each of the Leases shall remain in full force and effect irrespective
of any merger of the interest of lessor and any lessee under any of the leases.
(g) Borrower will not permit any Lease to become subordinate to any lien
other than the lien of this Instrument.
(h) Borrower shall not permit or consent to the assignment by any tenant
of its rights under its Lease without the prior written consent of Bank. Without
limitation of the foregoing, Borrower shall not permit or consent to the filing
of any encumbrance against the tenant's interest under any Lease including,
without limitation, any leasehold mortgage.
This assignment is absolute, is effective immediately, and is irrevocable
by Borrower so long as the Indebtedness remains outstanding. Notwithstanding the
foregoing, until a Notice is sent to Borrower in writing that an Event of
Default has occurred (which notice is hereafter called a "Notice"), Borrower may
receive, collect and enjoy the rents, income and profits accruing from the
Property.
Upon the occurrence of an Event of Default hereunder, Bank may, at its
option, after service of a Notice, receive and collect all such rents, income
and profits from the Property as they become due. Bank shall thereafter continue
to receive and collect all such rents, income and profits, as long as such
default or defaults shall exist, and during the pendency of any foreclosure
proceedings.
Borrower hereby irrevocably appoints Bank its true and lawful attorney with
power of substitution and with full power for Bank in its own name and capacity
or in the name and capacity of Borrower, from and after service of a Notice, to
demand, collect, receive and give complete acquittances for any and all rents,
income and profits accruing from the Property, either
14
in its own name or in the name of Borrower or otherwise, which Bank may deem
necessary or desirable in order to collect and enforce the payment of the rents,
income and profits of and from the Property. Lessees of the Property are hereby
expressly authorized and directed, following receipt of a Notice from Bank, to
pay any and all amounts due Borrower pursuant to the Leases to Bank or such
nominee as Bank may designate in a writing delivered to and received by such
lessees, and the lessees of the Property are expressly relieved of any and all
duty, liability or obligation to Borrower in respect of all payments so made.
Upon the occurrence of any Event of Default, from and after service of a
Notice, Bank is hereby vested with full power to use all measures, legal and
equitable, deemed by it to be necessary or proper to enforce this Section 24 and
to collect the rents, income and profits assigned hereunder, including the right
of Bank or its designee, to enter upon the Property, or any part thereof, and
take possession of all or any part of the Property together with all personal
property, fixtures, documents, books, records, papers and accounts of Borrower
relating thereto, and Bank may exclude Borrower, its agents and servants, wholly
therefrom. Borrower hereby grants full power and authority to Bank to exercise
all rights, privileges and powers herein granted at any and all times after
service of a Notice, with full power to use and apply all of the rents and other
income herein assigned to the payment of the costs of managing and operating the
Property and of any indebtedness or liability of Borrower to Bank, including but
not limited to the payment of taxes, special assessments, insurance premiums,
damage claims, the costs of maintaining, repairing, rebuilding and restoring the
improvements on the Property or of making the same rentable, reasonable
attorneys' fees incurred in connection with the enforcement of this Instrument,
and of principal and interest payments due from Borrower to Bank on the Note and
this Instrument, all in such order as Bank may determine. Bank shall be under no
obligation to exercise or prosecute any of the rights or claims assigned to it
hereunder or to perform or carry out any of the obligations of the lessor under
any of the Leases and does not assume any of the liabilities in connection with
or arising or growing out of the covenants and agreements of Borrower in the
Leases. It is further understood that the assignment set forth in this Section
24 shall not operate to place responsibility for the control, care, management
or repair of the Property, or parts thereof, upon Bank, nor shall it operate to
make Bank liable for the performance of any of the terms and conditions of any
of the Leases, or for any waste of the Property by any lessee under any of the
Leases, or any other person, or for any dangerous or defective condition of the
Property or for any negligence in the management, upkeep, repair or control of
the Property resulting in loss or injury or death to any lessee, licensee,
employee or stranger.
Section 25. Default. The following shall each constitute an event of
default ("Event of Default"):
(a) Failure of or refusal by Borrower to pay any portion of the sums
secured by this Instrument when due, and such failure or refusal shall continue
for a period of three (3) days after written notice is given to Borrower by Bank
specifying such failure; or
(b) Failure of Borrower within the time required by this Instrument to
make any payment for taxes, insurance or for reserves for such payments, or any
other payment necessary
15
to prevent filing of or discharge of any lien, and such failure shall continue
for a period of ten (10) days after written notice is given to Borrower by Bank
specifying such failure; or
(c) Failure by Borrower to observe or perform any obligations of Borrower
to Bank on or with respect to any transactions, debts, undertakings or
agreements other than the transaction evidenced by the Note; or
(d) Failure of Borrower to make any payment or perform any obligation
under any superior liens or encumbrances on the Property, within the time
required thereunder, or commencement of any suit or other action to foreclose
any superior liens or encumbrances; or
(e) Failure by Borrower to observe or perform any of its obligations under
any of the Leases; or
(f) The Property is transferred or any agreement to transfer any part or
interest in the Property in any manner whatsoever is made or entered into
without the prior written consent of Bank; or
(g) If any lease agreement covering all or any portion of the Property is
executed by Borrower without Bank's prior written consent; or
(h) Filing by Borrower of a voluntary petition in bankruptcy or filing by
Borrower of any petition or answer seeking or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief for
itself under any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for debtors, or
the seeking, consenting to, or acquiescing by Borrower in the appointment of any
trustee, receiver, custodian, conservator or liquidator for Borrower, any part
of the Property, or any of the income or rents of the Property, or the making by
Borrower of any general assignment for the benefit of creditors, or the
inability of or failure by Borrower to pay its debts generally as they become
due, or the insolvency on a balance sheet basis or business failure of Borrower,
or the making or suffering of a preference within the meaning of federal
bankruptcy law or the making of a fraudulent transfer under applicable federal
or state law, or concealment by Borrower of any of its property in fraud of
creditors, or the imposition of a lien upon any of the property of Borrower
which is not discharged in the manner permitted by Section 4 of this Instrument,
or the giving of notice by Borrower to any governmental body of insolvency or
suspension of operations; or
(i) Filing of a petition against Borrower seeking any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief under any
present or future federal, state or other law or regulation relating to
bankruptcy, insolvency or other relief for debts, or the appointment of any
trustee, receiver, custodian, conservator or liquidator of Borrower, of any part
of the Property or of any of the income or rents of the Property, unless such
petition shall be dismissed within sixty (60) days after such filing, but in any
event prior to the entry of an order, judgment or decree approving such
petition; or
16
(j) The institution of any proceeding for the dissolution or termination
of Borrower voluntarily, involuntarily, or by operation of law, or the death of
Borrower; or
(k) A material adverse change occurs in the assets, liabilities or net
worth of Borrower or any of the guarantors of the indebtedness evidenced by the
Note from the assets, liabilities or net worth of Borrower or any of the
guarantors of the indebtedness evidenced by the Note previously disclosed to
Bank; or
(1) Any warranty, representation or statement furnished to Bank by or on
behalf of Borrower under the Note, this Instrument, any of the other Loan
Documents, shall prove to have been false or misleading in any material respect;
or
(m) Failure of Borrower to observe or perform any other covenant or
condition contained in the Note and such default shall continue for thirty (30)
days after notice is given to Borrower specifying the nature of the failure. No
notice of default and no opportunity to cure shall be required if during the
prior twelve (12) months Bank has already sent a notice to Borrower concerning
default in performance of the same obligation; or
(n) Failure of Borrower to observe or perform any other obligation under
this Instrument, any other Loan Document or the Certificate and Indemnity
Regarding Hazardous Substances when such observance or performance is due, and
such failure shall continue beyond the applicable cure period set forth in such
Loan Document, or if the default cannot be cured within such applicable cure
period, Borrower fails within such time to commence and pursue curative action
with reasonable diligence or fails at any time after expiration of such
applicable cure period to continue with reasonable diligence all necessary
curative actions. No notice of default and no opportunity to cure shall be
required if during the prior twelve (12) months Bank has already sent a notice
to Borrower concerning default in performance of the same obligation; or
(o) Any of the foregoing events occur with respect to any tenant of the
Property, with respect to any guarantor of any of Borrower's obligations in
connection with the Indebtedness or with respect to any guarantor of any
tenant's obligations relating to the Property, or such guarantor dies or becomes
incompetent; or
(p) The occurrence of any default under any of the documents evidencing or
securing (i) Bank's Loans to Borrower Nos. 109, 125 and 166, or (ii) any other
indebtedness of Borrower or any of the guarantors of the Indebtedness which is
now or hereafter owed to Bank.
Section 26. Rights and Remedies on Default.
Upon the occurrence of any Event of Default and at any time thereafter,
Trustee or Bank may exercise any one or more of the following rights and
remedies:
(a) Bank may declare the entire Indebtedness, including the then unpaid
principal balance on the Note, the accrued but unpaid interest thereon, court
costs and attorney's fees
17
hereunder immediately due and payable, without notice, presentment, protest,
demand or action of any nature whatsoever (each of which hereby is expressly
waived by Borrower), whereupon the same shall become immediately due and
payable. Additionally, Bank shall not be required to make any further advances
on the Note or other Loan Documents upon the occurrence of an Event of Default
or an event which, with the giving of notice or passing of time, would
constitute an Event of Default.
(b) Bank may enter upon the Property and take exclusive possession thereof
and of all books, records and accounts relating thereto without notice and
without being guilty of trespass, and hold, lease, manage, operate or otherwise
use or permit the use of the Property, either itself or by other persons, firms
or entities, in such manner, for such time and upon such other terms as Bank may
deem to be prudent and reasonable under the circumstances (making such repairs,
alterations, additions and improvements thereto and taking any and all other
action with reference thereto, from time to time, as Bank shall deem necessary
or desirable), and apply all rents and other amounts collected by Bank in
connection therewith in accordance with the provisions of subsection (h) of this
Section 26. Borrower hereby irrevocably appoints Bank as the agent and
attorney-in-fact of Borrower, with full power of substitution, and in the name
of Borrower, if Bank elects to do so, to (i) endorse the name of Borrower on any
checks or drafts representing proceeds of the insurance policies, or other
checks or instruments payable to Borrower with respect to the Property, (ii)
prosecute or defend any action or proceeding incident to the Property, and (iii)
take any action with respect to the Property that Bank may at any time and from
time to time deem necessary or appropriate. Bank shall have no obligation to
undertake any of the foregoing actions, and if Bank should do so, it shall have
no liability to Borrower for the sufficiency or adequacy of any such actions
taken by Bank.
(c) Bank may, by or through the Trustee, or otherwise, sell or offer for
sale the Property in such portions, order and parcels as Bank may determine,
with or without having first taken possession of same, to the highest bidder for
cash at public auction. Such sale shall be made in accordance with the laws of
the State of Nebraska relating to the sale of real estate or by Chapter 9 of the
Uniform Commercial Code relating to the sale of collateral after default by a
debtor (as such laws now exist or may be hereafter amended or succeeded), or by
any other present or subsequent articles or enactments relating to same. With
respect to any notices required or permitted under the Uniform Commercial Code,
Borrower agrees that five days' prior written notice shall be deemed
commercially reasonable. At any such sale (i) whether made under the power
herein contained, the Uniform Commercial Code, any other legal requirement or by
virtue of any judicial proceedings or any other legal right, remedy or recourse,
it shall not be necessary for Trustee to be physically present at, or to have
constructive possession of, the Property (Borrower shall deliver to Trustee any
portion of the Property not actually or constructively possessed by Trustee
immediately upon demand by Trustee), and the title to and right of possession of
any such property shall pass to the purchaser thereof as completely as if
Trustee had been actually present and delivered to purchaser at such sale, (ii)
each instrument of conveyance executed by Trustee shall contain a general
warranty of title, binding upon Borrower, (iii) each and every recital contained
in any instrument of conveyance made by Trustee shall conclusively establish the
truth and accuracy of the matters recited therein, including without limitation
nonpayment of the Indebtedness, advertisement and conduct of such
18
sale in the manner provided herein and otherwise by law, and appointment of any
successor Trustee hereunder, (iv) any and all prerequisites to the validity of
such sale shall be conclusively presumed to have been performed, (v) the receipt
of Trustee or other party making the sale shall be a sufficient discharge to the
purchaser or purchasers for his or their purchase money and no such purchaser or
purchasers, or his or their assigns or personal representatives, shall
thereafter be obligated to see to the application of such purchase money or be
in any way answerable for any loss, misapplication or nonapplication thereof and
(vi) to the fullest extent permitted by law, Borrower shall be completely and
irrevocably divested of all of its right, title, interest, claim, equity, equity
of redemption, and demand whatsoever, either at law or in equity, in and to the
property sold and such sale shall be a perpetual bar both at law and in equity
against Borrower, and against all other persons claiming or to claim the
property sold or any part thereof, by, through or under Borrower. To the extent
and under the circumstances as are permitted by law, Bank may be a purchaser at
any such sale.
(d) After sale of the Property, or any portion thereof, Borrower will be
divested of any and all interest and claim thereto, including any interest or
claim to all insurance policies, bonds, loan commitments and other intangible
property covered hereby. Additionally, Borrower will be considered a tenant at
sufferance of the purchaser of the Property, and said purchaser shall be
entitled to immediate possession thereof, and if Borrower shall fail to vacate
the Property immediately, the purchaser may and shall have the right, without
further notice to Borrower, to go into any justice court in any precinct or
county in which the Property is located and file an action in forcible entry and
detainer, which action shall lie against Borrower or its assigns or legal
representatives, as a tenant at sufferance. This remedy is cumulative of any and
all remedies the purchaser may have hereunder or otherwise.
(e) (i) Upon, or at any time after, commencement of foreclosure of the
lien and security interest provided for herein or any legal proceedings
hereunder, Bank may make application to a court of competent jurisdiction, as a
matter of strict right and without notice to Borrower or regard to the adequacy
of the Property for the repayment of the Indebtedness, for appointment of a
receiver of the Property, and Borrower does hereby irrevocably consent to such
appointment. Any such receiver shall have all the usual powers and duties of
receivers in similar cases, including the full power to rent, maintain and
otherwise operate the Property upon such terms as may be approved by the court,
and shall apply such Rents in accordance with the provisions of subsection (h)
of this Section 26.
(ii) Bank may exercise any and all other rights, remedies and
recourses granted under the Loan Documents or now or hereafter existing in
equity, at law, by virtue of statute or otherwise.
(f) Trustee and Bank shall have all rights, remedies and recourses granted
in the Loan Documents and available at law or equity and the same (i) shall be
cumulative and concurrent; (ii) may be pursued separately, successively or
concurrently against Borrower, any guarantor of the Indebtedness or others
obligated under the Note, or against the Property, or against any one or more of
them at the sole discretion of Bank; (iii) may be exercised as often as occasion
therefor shall arise, it being agreed by Borrower that the exercise or failure
to exercise any of the
19
same shall in no event be construed as a waiver or release thereof or of any
other right, remedy or recourse; and (iv) are intended to be, and shall be,
nonexclusive.
(g) To the fullest extent permitted by law, Borrower hereby irrevocably
and unconditionally waives and releases (i) all benefits that might accrue to
Borrower by any present or future laws exempting the Property from attachment,
levy or sale on execution or providing for any appraisement, valuation, stay of
execution, exemption from civil process, redemption or extension of time for
payment; (ii) all notices of any Event of Default (except as may be specifically
provided for under the terms hereof), presentment, demand, notice of intent to
accelerate, notice of acceleration and any other notice of Bank's or Trustee's
election to exercise or the actual exercise of any right, remedy or recourse
provided for under the Loan Documents; (iii) any right to appraisal or
marshalling of assets or a sale in inverse order of alienation; (iv) the
exemption of homestead; and (v) the administration of estates of decedents, or
other matter to defeat, reduce or affect the right of Bank under the terms of
this Instrument to sell the Property for the collection of the Indebtedness
secured hereby (without any prior or different resort for collection) or the
right of Bank, under the terms of this Instrument, to receive the payment of the
Indebtedness out of the proceeds of sale of the Property in preference to every
other person and claimant whatever (only reasonable expenses of such sale being
first deducted).
(h) The proceeds of any sale of, and the rents, profits and other income
generated by the holding, leasing, operating or other use of the Property, shall
be applied by Bank (or the receiver, if one is appointed) to the extent that
funds are so available therefrom in the following orders of priority: (i) first,
to the payment of the costs and expenses of taking possession of the Property
and of holding, using, leasing, maintaining, repairing, improving and selling
the same, including, without limitation, (A) receiver's fees; (B) costs of
advertisement; (C) attorneys' and accountants' fees; and (D) court costs; if
any; (ii) second, to the payment of all amounts, other than the principal amount
and accrued but unpaid interest on the Note which may be due to Bank under the
Loan Documents, including all Indebtedness, together with interest thereon as
provided therein, in such order and manner as Bank may determine; (iii) third,
to the~ payment of the principal amount outstanding on the Note in such order
and manner as Bank may determine and all other Indebtedness; (iv) fourth, to the
payment of all accrued but unpaid interest due on the Note in such order and
manner as Bank may determine; and (v) fifth, to Borrower. Borrower, any
guarantor of the Indebtedness and any other party liable on the Indebtedness
shall be liable for any deficiency remaining in the Indebtedness subsequent to
any sale referenced in this subsection (h).
(i) Bank shall have the right to become the purchaser at any sale of the
Property hereunder and shall have the right to be credited on the amount of its
bid therefor all of the Indebtedness due and owing as of the date of such sale.
(j) If Bank shall accelerate the Indebtedness following the occurrence of
an Event of Default, any payments received by Bank following such acceleration,
whether as the result of voluntary payments made by Borrower or as a result of
the sale of the Property by Trustee, shall be deemed voluntary prepayments of
the Note and accordingly, the prepayment fee required under the Note shall also
be payable, subject to the terms of the Note.
20
(k) The purchaser at any trustee's or foreclosure sale hereunder may
disaffirm any easement granted, or rental, lease or other contract made in
violation of any provisions of this Instrument and may take immediate possession
of the Property free from, and despite the terms of, any such grant of easement,
rental, lease or other contract.
Section 27. Reconveyance. Upon payment of all sums secured by this
Instrument, Bank shall request Trustee to reconvey the Property and shall
surrender this Instrument and all notes evidencing Indebtedness secured by this
Instrument to Trustee. Trustee shall reconvey the Property without warranty to
the person or persons legally entitled thereto. Such person or persons shall pay
Trustee's costs incurred in so reconveying the Property.
Section 28. Substitute Trustee. Trustee shall not be liable for any error
of judgment or act done by Trustee, or be otherwise responsible or accountable
under any circumstances whatsoever. Trustee shall not be personally liable in
case of entry by it or anyone acting by virtue of the powers herein granted it
upon the Property for debts contracted or liability or damages incurred in the
management or operation of the Property. All monies received by Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated in any manner from any
other monies (except to the extent required by law) and Trustee shall be under
no liability for interest on any monies received by it hereunder.
Trustee may resign by giving of notice of such resignation in writing to
Bank. If Trustee shall die, resign or become disqualified from acting, or shall
fail or refuse to exercise its powers hereunder when requested by Bank so to do,
or if for any reason and without cause Bank shall prefer to appoint a substitute
trustee to act instead of the original Trustee named herein, or any prior
successor or substitute trustee, Bank shall have full power to appoint a
substitute trustee and, if preferred, several substitute trustees in succession
who shall succeed to all the estate, rights, powers and duties of the aforenamed
Trustee. Upon appointment by Bank, any new Trustee appointed pursuant to any of
the provisions hereof shall, without any further act, deed or conveyance, become
vested with all the estates, properties, rights, powers and trusts of its
predecessor in the rights hereunder with the same effect as if originally named
as Trustee herein.
Section 29. Use of Property. The Property is not currently used for
agricultural, farming, timber or grazing purposes. Borrower warrants that this
Instrument is and will at all times constitute a commercial trust deed, as
defined under appropriate state law.
Section 30. Future Advances. Upon request of Borrower, Bank, at Bank's
option so long as this Instrument secures Indebtedness held by Bank, may make
Future Advances to Borrower. Such Future Advances, with interest thereon, shall
be secured by this Instrument when evidenced by promissory notes stating that
said notes are secured hereby.
Section 31. Imposition of Tax by State.
(a) The following constitute state taxes to which this Section 31 applies:
21
(i) A specific tax upon trust deeds or upon all or any part of the
indebtedness secured by a trust deed.
(ii) A specific tax on a grantor which the taxpayer is authorized or
required to deduct from payments on the indebtedness secured by a trust
deed.
(iii) A tax on a trust deed chargeable against the beneficiary or the
holder of the note secured.
(iv) A specific tax on all or any portion of the indebtedness or on
payments of principal and interest made by a grantor.
(b) If any state tax to which this Section 31 applies is enacted
subsequent to the date of this Instrument, this shall have the same effect as an
Event of Default, and Bank may exercise any or all of the remedies available to
it unless the following conditions are met:
(i) Borrower may lawfully pay the tax or charge imposed by state
tax, and
(ii) Borrower pays the tax or charge within thirty (30) days after
notice from Bank that the tax law has been enacted.
Section 32. Attorneys' Fees. In the event suit or action is instituted to
enforce or interpret any of the terms of this Instrument (including without
limitation efforts to modify or vacate any automatic stay or injunction), the
prevailing party shall be entitled to recover all expenses reasonably incurred
at, before and after trial and on appeal whether or not taxable as costs, or in
any bankruptcy proceeding including, without limitation, attorneys' fees,
witness fees (expert and otherwise), deposition costs, copying charges and other
expenses. Whether or not any court action is involved, all reasonable expenses,
including but not limited to the costs of searching records, obtaining title
reports, surveyor reports, title insurance, trustee fees, and other attorney
fees, incurred by Bank that are necessary at any time in Bank's opinion for the
protection of its interest or enforcement of its rights shall become a part of
the Indebtedness payable on demand and shall bear interest from the date of
expenditure until repaid at the interest rate as provided in the Note. The term
"attorneys' fees" as used in the Loan Documents shall be deemed to mean such
fees as are reasonable and are actually incurred.
Section 33. Governing Law; Severability. This Instrument shall be governed
by the law of the State of Nebraska applicable to contracts made and to be
performed therein (excluding choice-of-law principles). In the event that any
provision or clause of this Instrument or the Note conflicts with applicable
law, such conflict shall not affect other provisions of this Instrument or the
Note which can be given effect without the conflicting provision, and to this
end the provisions of this Instrument and the Note are declared to be severable.
Section 34. Time of Essence. Time is of the essence of this Instrument.
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Section 35. Changes in Writing. This Instrument and any of its terms may
only be changed, waived, discharged or terminated by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought. Any agreement subsequently made by Borrower or Bank
relating to this Instrument shall be superior to the rights of the holder of any
intervening lien or encumbrance.
Section 36. No Offset. Borrower's obligation to make payments and perform
all obligations, covenants and warranties under this Instrument and under the
Note shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation any setoff, counterclaim, abatement,
suspension, recoupment, deduction, defense or other right that Borrower or any
guarantor may have or claim against Bank or any entity participating in making
the loan secured hereby. The foregoing provisions of this section, however, do
not constitute a waiver of any claim or demand which Borrower or any guarantor
may have in damages or otherwise against Bank or any other person, or preclude
Borrower from maintaining a separate action thereon; provided, however, that
Borrower waives any right it may have at law or in equity to consolidate such
separate action with any action or proceeding brought by Bank.
Section 37. Authorization to Insert. Borrower authorizes Bank or its agent
to insert in the spaces provided herein the amount of the Note, the mortgagee's
loan policy number, the title company issuing such policy, the total amounts of
the obligations secured, and the last payment due dates, if any of the foregoing
information is not typed in on this document.
[REMAINDER OF PAGE INTENTIONALLY BLANK;
EXECUTION PAGE FOLLOWS]
23
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, Borrower has executed this Instrument or has caused the
same to be executed by its representatives thereunto duly authorized.
Borrower:
Professional Veterinary Products, Ltd.,
a Nebraska corporation
By: /s/ Xx. Xxxxxx X. Xxxxxx
------------------------------------
Xx. Xxxxxx X Xxxxxx, its President
STATE OF NEBRASKA )
) SS
COUNTY OF Sarpy )
---------------------
The foregoing instrument was acknowledged before me a notary public on the
12/th/ day of May, 2003, by Xx Xxxxxx X. Xxxxxx, the President of Professional
Veterinary Products, Ltd. on behalf of said corporation.
/s/ Xxxxxxxx Xxxxxxx
---------------------------------------
Notary Public
Printed Name of Notary Public:
Xxxxxxxx Xxxxxxx
---------------------------------------
My Commission Expires:
2005
---------------------------------------
[EXECUTION PAGE OF DEED OF TRUST, SECURITY
AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING]
24
EXHIBIT A
---------
DESCRIPTION OF PROPERTY
-----------------------
Lot 24 together with the North 142.00 feet of Xxx 00, Xxxxxxx Xxxxxxxxxx Xxxx, a
Subdivision, in Sarpy County, Nebraska.
25
SCHEDULE 1
----------
PERMITTED EXCEPTIONS
--------------------
Lender's Commitment for Title Insurance No T-0250603 issued by Commonwealth Land
Title Insurance Company, Schedule B - Section 2, Items 7, 8, 9, 10, 11, 12, 13,
14, 15, 16 and 17.
26
