DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
EXHIBIT 10.5
Following recording, return to: Xxxxx X. Xxxxxx, XxXxxxx North Xxxxxx & Xxxxx, PC LLO, First
National Tower, Suite 3700, 0000 Xxxxx Xxxxxx, Xxxxx Xxxxxxxx, 00000, Tel. (000) 000-0000.
DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS
THIS DEED OF TRUST (the “Instrument”) is made this November 14, 2006, by Professional
Veterinary Products, Ltd., a Nebraska corporation, whose address is 00000 Xxxxx 000xx
Xxxxxx, Xxxxx, Xxxxxxxx 00000 (“Borrower”), in favor of First National Bank of Omaha, a national
banking association, whose address is 0000 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx, 00000 (“Trustee”), for
the benefit of First National Bank of Omaha, a national banking association, whose address is 0000
Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx, 00000 (“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 and
described on Exhibit A to this Instrument 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 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
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(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;
(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 loans 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 or furnishings 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 promissory
notes of even date herewith in the aggregate principal sum of FORTY-FOUR MILLION SIX HUNDRED
SIXTY-SIX THOUSAND AND NO/100 DOLLARS ($44,666,000) entered into in connection with the Loan
Agreement by and among Borrower, ProConn, LLC,
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Exact Logistics, LLC and Bank of even date herewith (the “Loan Agreement”), with interest
thereon as set forth in the notes, and all renewals, extensions and modifications thereof (herein,
the “Notes”); (b) the repayment of any future advances, with interest thereon, made by Bank to
Borrower pursuant to Section 30 of this Instrument (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; and (e) the repayment of all sums now or hereafter
owing to Bank by Borrower. The indebtedness and obligations described in clauses (a)-(e) above are
collectively referred to herein as the “Indebtedness.” The Loan Agreement, the Notes, the
Collateral Agreements 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 Notes 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 Notes notwithstanding any such indexing, adjustment,
renewal or renegotiation. All capitalized terms used in this Instrument, except terms otherwise
defined herein, shall have the same meaning as such terms have in the Loan Agreement.
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 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 to this Instrument.
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 Notes, one-twelfth of the annual real estate taxes,
insurance premiums, assessments, water and sewer rates 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 (a) to pay Impositions which are now or will hereafter become due or (b) 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.
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Section 3. Application of Payments. Unless applicable law provides otherwise, each payment
received by Bank from Borrower under the Loan Documents shall be applied by Bank first in payment
of amounts payable to Bank by Borrower under Section 23 hereof, then in payment of amounts payable
to Bank by Borrower under Section 2 hereof, then to interest payable on the Notes, then to
principal of the Notes 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 Loan Documents.
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 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 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 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
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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 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 Notes 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 (i) to restore, repair, replace and rebuild the Property as
nearly as possible to its value, condition and character immediately prior to such Loss or (ii) 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 Notes 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 and
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
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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. 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 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, (a) initiate or acquiesce in a change in the zoning classification
(including any variance under any existing zoning ordinance applicable to the Property), (b) permit
the use of the Property to become a non-conforming use under applicable zoning ordinances, (c) file
any subdivision or parcel map affecting the Property or (d) 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, (a) disbursement of attorneys’ fees, (b) entry upon the Property to
make repairs and (c) procurement of satisfactory insurance as provided in Section 5 hereof.
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
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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 highest rate stated in the Notes. 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 other borrower
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 Notes 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), Borrower shall
have the right to apply the proceeds of such award to restore, repair, replace and rebuild the
Property as nearly as possible to its value, condition and character immediately prior to such
taking. 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.
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,
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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
Notes or decrease the amount of the monthly payments 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 promise of any person, corporation, partnership or
other entity to pay 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 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
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herein granted, which inventory shall be certified by Borrower as being true, correct and
complete.
Section 15. Leases of the Property. 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 (a) take such steps as shall be reasonably calculated to prevent the accrual
of any right to a set-off against rent, (b) immediately notify Bank thereof in writing and of the
amount of said setoffs and (c) 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
highest rate provided in the Notes 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.
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 more than
forty-nine percent (49%) of the shareholder interests of Borrower to Persons other than the present
shareholders of Borrower or their respective Affiliates, 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
9
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 Notes 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 of America 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 (a) the date of actual receipt, (b) three (3) days after the date
of mailing by registered or certified mail, (c) 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 (d) the date of personal delivery (or refusal upon presentation for delivery).
Section 19. Successors and Assigns Bound; 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. In
exercising any rights 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 Notes 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 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, 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
10
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 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 highest rate applicable under the Notes 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
11
might prevent Bank from fully exercising its rights with respect to the Leases under any of
the terms, covenants and conditions of this Instrument.
(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 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
12
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 Notes 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; 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 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; 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
13
(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
(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 other borrower of the Indebtedness from the assets, liabilities or net worth of Borrower or any
other borrower of the Indebtedness previously disclosed to Bank; or
(l) Any warranty, representation or statement furnished to Bank by or on behalf of Borrower
under the Loan Documents, shall be false or misleading in any material respect; or
(m) Failure of Borrower to observe or perform any other covenant or condition contained in
the Loan Documents 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 obligation under the Loan Documents, when
such observance or performance is due, and such failure shall continue beyond the applicable cure
period set forth in such Loan Documents, 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
14
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 other borrower of the Indebtedness or with respect to any guarantor of any tenant’s
obligations relating to the Property, or such borrower or guarantor dies or becomes incompetent; or
(p) The occurrence of any default or Event of Default under any of the Loan Documents.
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 Notes, the accrued but unpaid interest thereon, court costs and attorney’s fees 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 Notes 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
15
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 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;
16
(ii) may be pursued separately, successively or concurrently against Borrower, any other
borrower of the Indebtedness or others obligated under the Notes, 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 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 Notes 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 Notes 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 Notes
in such order and manner as Bank may determine; and (v) fifth, to Borrower. Borrower, any other
borrower 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 Notes and accordingly, the prepayment fee required under the
Notes shall also be payable, subject to the terms of the Notes.
17
(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:
(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.
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(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 highest
interest rate as provided in the Notes. 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 Notes conflicts
with applicable law, such conflict shall not affect other provisions of this Instrument or the
Notes 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.
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 Notes 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
loans 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
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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 Notes, 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.
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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 8th day
of November, 2006, by Xx. Xxxxxx X. Xxxxxx, the President of Professional Veterinary Products,
Ltd., on behalf of said corporation.
| /s/ X. X. Xxxxxxxx | ||||
| Notary Public | ||||
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