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REAL ESTATE MORTGAGE
To Secure a Loan
From CITIZENS NATIONAL BANK OF FORT XXXXX
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1. DATE AND PARTIES. The date of this Real Estate Mortgage (Mortgage) is
February 3, 1997 and the parties and their mailing addresses are the
following
MORTGAGOR:
AFI MORTGAGE CORP. F/K/A CONTINENTAL MORTGAGE
a NEBRASKA corporation
0000 XXXXXXXXXX
XXXXXXX, XX 00000
BANK:
CITIZENS NATIONAL BANK OF FORT XXXXX
a national banking association
000 Xxxxx Xxxx
X.X. Bxo 899
Fort Xxxxx, Kansas 66701
Tax I.D. # 00-0000000
(as Mortgagee)
2. MAXIMUM OBLIGATION LIMIT. The total principal amount of the Obligations
secured by this Mortgage at any one time shall not exceed $739,031.00. This
limitation of amount does not include interest and other fees and charges
validly made pursuant to this Mortgage. Also, this limitation does not
apply to advances made under the terms of this Mortgage to protect Bank's
security and to perform any of the covenants contained in this Mortgage.
This limit is for the purposes set forth in K.S.A. 79-3012 and 58-2336.
3. OBLIGATIONS DEFINED. The Term "Obligations" is defined as and includes the
following:
A. A promissory note, NO. 12558, (Note) dated February 3, 1997, with
a maturity date of March 28, 1998, and executed by ADVANCED
FINANCIAL, INC. and AFI MORTGAGE CORP. F/K/A CONTINENTAL MORTGAGE
(Borrower) payable to the order of Bank, which evidences a loan
(Loan) to Borrower in the amount of $739,031.00, plus interest,
and all extensions, renewals, modifications or substitutions
thereof.
B. All future advances by Bank to Borrower, to Mortgagor, to any one
of them or to any one of them and others (and all other
obligations referred to in the subparagraph(s) below, whether or
not this Mortgage is specifically referred to in the evidence of
indebtedness with regard to such future and additional
indebtedness and whether or not such future advances are incurred
for any purpose that was related or unrelated to the purpose of
the Obligations).
C. All additional sums advanced, and expenses incurred, by Bank for
the purpose of insuring, preserving or otherwise protecting the
Property (as herein defined) and its value, and any other sums
advanced, and expenses incurred by Bank pursuant to this
Mortgage, plus interest at the same rate provided for in the Note
computed on a simple interest method.
D. All other obligations, now existing or hereafter arising, by
Borrower owing to Bank to the extent the taking of the Property
(as herein defined) as security therefor is not prohibited by
law, including but not limited to liabilities for overdrafts, all
advances made by Bank on Borrower's, and/or Xxxxxxxxx's, behalf
as authorized by this Mortgage and liabilities as guarantor,
endorser or surety, of Borrower to Bank, due or to become due,
direct or indirect, absolute or contingent, primary or secondary,
liquidated or unliquidated, or joint, several, or joint and
several.
E. Xxxxxxxx's performance of the terms in the Note or Loan,
Xxxxxxxxx's performance of any terms in this Mortgage, and
Xxxxxxxx's and Xxxxxxxxx's performance of any terms in any deed
of trust, any trust deed, any trust indenture, any other
mortgage, any deed to secure debt, any security agreement, any
assignment, any construction loan agreement, any loan agreement,
any assignment of beneficial interest, any guaranty agreement or
any other agreement which secures, guaranties o otherwise relates
to the Note or Loan.
However, this Mortgage will not secure another debt:
A. if bank fails to make any disclosure of the existence of this
Mortgage required by law for such other debt.
4. CONVEYANCE. In consideration of the Loan and Obligations, and to secure
the Obligations (which includes the Note according to its specific terms
and the obligations in this Mortgage), Mortgagor hereby bargains, grants,
mortgages, sells, conveys and warrants to Bank, as Mortgagee, the
following described property (Property) situated in XXXXXXX County,
KANSAS, to-wit:
LOT 1, BLOCK 2, MILLWOOD BUSINESS PARK FIRST
PLAT, A SUBDIVISION IN THE CITY OF SHAWNEE,
XXXXXXX COUNTY, KANSAS.
The Property may be commonly referred to as
0000 XXXXXXXXXX, XXXXXXX, XXXXXX 00000
such property not constituting the homestead of Borrower, together
with all buildings, improvements, fixtures and equipment now or
hereafter attached to the Property, including, but not limited to,
all heating, air conditioning, ventilation, plumbing, cooling,
electrical and lighting fixtures and equipment; all landscaping; all
exterior and interior improvements; all easements, issues, rights,
appurtenances, rents, royalties, oil and gas rights, privileges,
proceeds, profits, other minerals, water, water rights, and water
stock, crops, grass and timber at any time growing upon said land,
including replacements and additions thereto, all of which shall be
deemed to be and remain a part of the Property. All of the foregoing
Property shall be collectively hereinafter referred to as the
Property. To have and to hold the Property, together with the rights,
privileges and appurtenances thereto belonging, unto Bank forever to
secure the Obligations. Xxxxxxxxx does hereby warrant and defend the
Property unto Bank forever, against any claim or claims, of all
persons claiming or to claim the Property or any part thereof.
5. LIENS AND ENCUMBRANCES. Mortgagor warrants and represents that the Property
Is free and clear of all lions and encumbrances whatsoever. Xxxxxxxxx
agrees to pay all claims when due that might result, if unpaid, in the
foreclosure, execution or imposition of any lien, claim or encumbrance on
or against the Property or any part thereof. Mortgagor may in good faith
contest any such lien, claim or encumbrance by posting any bond in an
amount necessary to prevent such claim from becoming a lien, claim or
encumbrance or to prevent its foreclosure or execution.
6. WARRANTY OF TITLE. Xxxxxxxxx agrees to forever warrant and defend the
title to the Property and represents and warrants that Mortgagor is the
fee simple owner of the Property, that it is authorized to convey the
Property and that it will forever defend the title against all claims.
7. CORPORATE WARRANTIES AND REPRESENTATIONS. If Mortgagor is a corporation,
Mortgagor makes to Bank the following warranties and representations which
shall be continuing so long as the Obligations remain outstanding:
A. Mortgagor Is a corporation which is duly organized and validly
existing in Mortgagor's-state of incorporation as represented in
the DATE AND PARTIES paragraph above; Mortgagor is in good
standing under the laws of all states in which Mortgagor
transacts business; Mortgagor has the corporate power and
authority to own the Property and to carry on its business as now
being conducted; Mortgagor is qualified to do business in every
jurisdiction in which the nature of its business or its property
makes such qualification necessary; and Mortgagor is in
compliance with all laws, regulations, ordinances and orders of
public authorities applicable to it.
B. The execution, delivery and performance of this Mortgage by
Xxxxxxxxx and the borrowing evidenced by the Note: (1) are within
the corporate powers of Mortgagor; (2) have been duly authorized
by all requisite corporate action; (3) have received all
necessary governmental approval; (4) will not violate any
provision of law, any order of any court or other agency of
government or Mortgagor's Articles of Incorporation or Bylaws;
and (5) will not violate any provision of any indenture,
agreement or other instrument to which Mortgagor is a party or to
which Mortgagor is or any of Mortgagor's property is subject,
Including but not limited to any provision prohibiting the
creation or Imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of Mortgagor's property or assets. The
Note and this Mortgage when executed and delivered by Mortgagor
will constitute the legal, valid and binding obligations of
Mortgagor, and of the other obligors named therein, if any, In
accordance with their respective terms.
C. All other Information, reports, papers and data given to Bank
with respect to Mortgagor or to others obligated under the terms
of this Mortgage are accurate and correct in all material
respects and complete insofar as completeness may be necessary to
give Bank a true and accurate knowledge of the subject matter.
X. Xxxxxxxxx has not changed its name within the last six years,
unless otherwise disclosed in writing; other than the trade names
or fictitious names actually disclosed to Bank prior to execution
of this Mortgage, Xxxxxxxxx uses no other names; and until the
Obligations shall have been paid in full, Mortgagor hereby
covenants and agrees to preserve and keep in full force and
effect its existing name, corporate existence, rights, franchises
and trade names, and to continue the operation of Its business in
the ordinary course.
8. ASSIGNMENT OF LEASES AND RENTS. Mortgagor grants, bargains, mortgages,
sells, conveys, warrants, assigns and transfers as additional security all
the right, title and interest in and to any and all:
A. Existing or future leases, subleases, licenses, guaranties and
any other written or verbal agreements for the use and occupancy
of any portion of the Property, including any extensions,
renewals, modifications or substitutions of such agreements (all
referred to as "Leases").
B. Rents, issues and profits (all referred to as "Rents"), including
but not limited to security deposits, minimum rent, percentage
rent, additional rent, common area maintenance charges, parking
charges, real estate taxes, other applicable taxes, insurance
premium contributions, liquidated damages following default,
cancellation premiums, loss of rents, insurance, guest receipts,
revenues, royalties, proceeds, bonuses, accounts, contract
rights, general intangibles, and all rights and claims which
Mortgagor may have that in any way pertain to or are on account
of the use or occupancy of the whole or any part of the Property.
In the event any item listed as Leases or Rents is determined to be
personal property, this Mortgage will also be regarded as a security
agreement.
Mortgagor will promptly provide Bank with true and correct copies of all
existing and future Leases. Mortgagor may collect, receive, enjoy and use
the Rents so long as Mortgagor is not in default. Except for one lease
period's rent, Mortgagor will not collect in advance any Rents due in
future lease periods, unless Mortgagor first obtains Bank's written
consent. Upon default, Mortgagor will receive any Rents in trust for Bank
and Mortgagor will not commingle the Rents with any other funds. Any
amounts collected shall be applied at Bank's discretion first to costs of
managing, protecting and preserving the Property, and to any other
necessary related expenses including Bank's court costs. Any remaining
amounts shall be applied to reduce the Obligations.
Xxxxxxxxx agrees that this assignment is immediately effective between the
parties to this Mortgage and effective as to third parties on the
recording of this Mortgage. Xxxxxxxxx agrees that Bank is entitled to
notify Mortgagor or Xxxxxxxxx's tenants to make payments of Rents due or
to become due directly to Bank after such recording, however Bank agrees
not to notify Xxxxxxxxx's tenants until Xxxxxxxxx defaults and Bank
notifies Mortgagor of the default and demands that Xxxxxxxxx and
Xxxxxxxxx's tenants pay all Rents due or to become due directly to Bank.
On receiving the notice of default, Xxxxxxxxx will endorse and deliver to
Bank any payments of Rents. If Xxxxxxxxx becomes subject to a voluntary or
involuntary bankruptcy, then Xxxxxxxxx agrees that Bank is entitled to
receive relief from the automatic stay in bankruptcy for the purpose of
enforcing this assignment under state and federal law and within
Xxxxxxxxx's bankruptcy proceedings.
Mortgagor warrants that no default exists under the Leases or any
applicable landlord law. Xxxxxxxxx also warrants and agrees to maintain,
and to require the tenants to comply with, the Leases and any applicable
law. Mortgagor will promptly notify Bank of any noncompliance. If
Xxxxxxxxx neglects or refuses to enforce compliance with the terms of the
Leases, then Bank may opt to enforce compliance to the extent that the law
permits. Xxxxxxxxx will obtain Bank's written authorization before
Xxxxxxxxx consents to sublet, modify, cancel, or otherwise alter the
Leases, to accept the surrender of the Property covered by such Leases
(unless the Leases so requite), or to assign, compromise or encumber the
Leases or any future Rents. Xxxxxxxxx will hold Bank harmless and
indemnify Bank for any and all liability, loss or damage that Bank may
incur as a consequence of the assignment under this paragraph.
9. EVENTS OF DEFAULT. Mortgagor shall be In default upon the occurrence of
any of the following events, circumstances or conditions (Events of
Default):
A. Failure by any party obligated on the Obligations to make payment
when due; or
B. A default or breach by Xxxxxxxx, Mortgagor or any co-signer,
endorser, surety, or guarantor under any of the terms of this
Mortgage, the Note, any construction loan agreement or other loan
agreement, any security agreement, mortgage, deed to secure debt,
deed of trust, trust deed, or any other document or Instrument
evidencing, guarantying, securing or otherwise relating to the
Obligations; or
C. The making or furnishing of any verbal or written representation,
statement or warranty to Bank which is or becomes false or
incorrect In any material respect by or on behalf of Mortgagor,
Xxxxxxxx, or any one of them, or any co-signer, endorser, surety
or guarantor of the Obligations; or
D. Failure to obtain or maintain the insurance coverages required by
Bank, or Insurance as is customary and proper for the Property
(as herein defined); or
E. The death, dissolution or insolvency of, the appointment of a
receiver by or on behalf of, the assignment for the benefit of
creditors by or on behalf of, the voluntary or Involuntary
termination of existence by, or the commencement of any
proceeding under any present or future federal or state
Insolvency, bankruptcy, reorganization, composition or debtor
relief law by or against Xxxxxxxxx, Borrower, or any one of them,
or any co-signer, endorser, surety or guarantor of the
Obligations; or
F. A good faith belief by Bank at any time that Bank is insecure
with respect to Borrower, or any co-signer, endorser, surety or
guarantor, that the prospect of any payment is impaired or that
the Property (as herein defined) is impaired; or
G. Failure to pay or provide proof of payment of any tax,
assessment, rent, insurance premium, escrow or escrow deficiency
on or before Its due date; or
H. A material adverse change in Mortgagor's business, including
ownership, management, and financial conditions, which in
Bank's opinion, impairs the Property or repayment of the
Obligations; or
I. A transfer of a substantial part of Xxxxxxxxx's money or
property; or
J. If all or any part of the Properly or any interest therein is
sold, leased or transferred by Xxxxxxxxx except as permitted in
the paragraph below entitled "DUE ON SALE OR ENCUMBRANCE'.
10. REMEDIES ON DEFAULT. At the option of Bank, all or any part of the
principal of, and accrued Interest on, the Obligations shall become
Immediately due and payable without notice or demand upon the occurrence of
an Event of Default or at any time thereafter. In addition, upon the
occurrence of any Event of Default, Bank, at its option, may Immediately
commence foreclosure proceedings and may immediately invoke any or all
other remedies provided in the Note, this Mortgage or related documents.
Bank is entitled to all rights and remedies provided at law or equity
whether or not expressly slated in this Mortgage. By choosing any remedy,
Bank does not waive its right to an immediate use of any other remedy if
the event of default continues or occurs again.
11. DUE ON SALE OR ENCUMBRANCE. Bank may, at Bank's option, declare the entire
balance with all accrued interest on the Obligations to be immediately due
and payable upon the contract for, or creation of, any lien, encumbrance,
transfer or sale of the Property, or any portion thereof, by Mortgagor.
Lapse of time or the acceptance of payments by Bank after such creation of
any lien, encumbrance, transfer or sale, or contract for any of the
foregoing, shall not be deemed a waiver or estoppel of Bank's right to
accelerate the Obligations. If Bank exercises such option to accelerate,
Bank shall mail, by certified mail or otherwise, Mortgagor notice of
acceleration to the address of Mortgagor shown on Bank's records; the
notice shall provide for a period of not less then 30 days from the date
the notice is mailed within which Mortgagor shall pay the sums declared
due. If Xxxxxxxxx fails to pay such sums prior to the expiration of such
period, Bank may, without further notice or demand on Mortgagor, invoke any
remedies permitted on Default. This covenant shall run with the Property
and shall remain in effect until the Obligations and this Mortgage are
fully paid.
In the preceding paragraph, the phrase "transfer or sale" includes the
conveyance of any right, title or interest in the Property, whether
voluntary or involuntary, by outright sale, deed, installment contract
sale, land contract, contract for deed, leasehold interest with a term
greater than three years, lease-option contract or any other method of
conveyance of the Property interests; the term "interest" includes,
whether legal or equitable, any right, title, interest, lien, claim,
encumbrance or proprietary right, xxxxxx or inchoate, any of which is
superior to the lien created by this Mortgage.
12. POSSESSION ON FORECLOSURE. If an action Is brought to foreclose this
Mortgage for all or any part of the Obligations, Xxxxxxxxx agrees that the
Bank shall be entitled to Immediate possession as Mortgagee In Possession
of the Property; or the court may appoint, and Xxxxxxxxx hereby consents to
such appointment, without notice, a receiver to take possession of the
Property and to collect and receive rents and profits arising therefrom.
Any amounts so collected shall be used to pay taxes on, provide Insurance
for, pay costs of needed repairs and for any other expenses relating to the
Property or the foreclosure proceedings, sale expenses or as authorized by
the court. Any sum remaining after such payments will be applied to the
Obligations.
13. PROPERTY OBLIGATIONS. Mortgagor shall promptly pay all taxes, assessments,
levies, water rents, other rents, insurance premiums and all amounts due on
any encumbrances, if any, as they become due. Mortgagor shall provide
written proof to Bank of such payment(s).
14. INSURANCE. Mortgagor shall insure and keep insured the Properly against
loss by fire, and other hazard, casualty and loss, with extended coverage
including but not limited to the replacement value of all improvements,
with an insurance company acceptable to Bank and in an amount acceptable to
Bank. Such insurance shall contain the standard "Mortgagee Clause" and
where applicable, "Loss Payee Clause" which shall name and endorse Bank as
mortgagee and loss payee. Such insurance shall also contain a provision
under which the insurer shall give Bank at least 30 days notice before the
cancellation, termination or material change in coverage.
If an insurer elects to pay a fire or other hazard loss or damage claim
rather than to repair, rebuild or replace the Property lost or damaged,
Bank shall have the option to apply such insurance proceeds upon the
Obligations secured by this Mortgage or to have said Property repaired or
rebuilt. Mortgagor shall deliver or cause to deliver evidence of such
coverage and copies of all notices and renewals relating thereto. Bank
shall be entitled to pursue any claim under the Insurance if Xxxxxxxxx
falls to promptly do so.
Mortgagor shall pay the premiums required to maintain such insurance in
effect until such time as the requirement for such insurance terminates. In
the event Mortgagor fails to pay such premiums, Bank may, at its option,
pay such premiums. Any such payment by Bank shall be repayable upon demand
of Bank or it no demand is made, in accordance with the paragraph below
titled "BANK MAY PAY".
15. WASTE. Mortgagor shall not alienate or encumber the Property to the
prejudice of Bank, or commit, permit or suffer any waste, impairment or
deterioration of the Property, and regardless of natural depreciation,
shall keep the Property and all its improvements at all times in good
condition and repair. Mortgagor shall comply with and not violate any and
all laws and regulations regarding the use, ownership and occupancy of the
Property. Xxxxxxxxx shall perform and abide by all obligations and
restrictions under any declarations, covenants and other documents
governing the use, ownership and occupancy of the Property.
16. CONDITION OF PROPERTY. As to the Property, Mortgagor shall:
A. keep all buildings occupied and keep all buildings, structures
and Improvements in good repair.
B. retrain from the commission or allowance of any acts of waste or
impairment of the value of the Property or Improvements thereon.
C. not cut or remove, or permit to be cut or removed, any wood or
timber from the Property, which cutting or removal would
adversely affect the value of the Property.
D. prevent the spread of noxious or damaging weeds, preserve and
prevent the erosion of the soil and continuously practice
approved methods of farming on the Property If used for
agricultural purposes.
17. ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES.
A. As used in this paragraph:
(1) "Environmental Law" means, without limitation, the
Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA", 42 U.S.C. 9601 et seq.), all
federal, state and local laws, regulations, ordinances,
court orders, attorney general opinions or interpretive
letters concerning the public health, safety, welfare,
environment or a Hazardous Substance (as defined herein).
(2) "Hazardous Substance" means any toxic, radioactive or
hazardous material, waste, pollutant or contaminant which
has characteristics which render the substance dangerous or
potentially dangerous to the public health, safety, welfare
or the environment. The term includes, without limitation,
any substances defined as "hazardous material," "toxic
substances," "hazardous waste" or "hazardous substance"
under any Environmental Law.
X. Xxxxxxxxx represents, warrants and agrees that:
(1) Except as previously disclosed and acknowledged in writing
to Bank, no Hazardous Substance has been, is or will be
located, transported, manufactured, treated, refined, or
handled by any person on, under or about the Property except
in the ordinary course of business and in strict compliance
with all applicable Environmental Law.
(2) Except as previously disclosed and acknowledged in writing
to Bank, Xxxxxxxxx has not and shall not cause, contribute
to or permit the release of any Hazardous Substance on the
Property.
(3) Mortgagor shall Immediately notify Bank if: (a) a release or
threatened release of Hazardous Substance occurs on, under
or about the Property or migrates or threatens to migrate
from nearby property; or (b) there is a violation of any
Environmental Law concerning the Property. In such an event,
Mortgagor shall take all necessary remedial action in
accordance with any Environmental Law.
(4) Except as previously disclosed and acknowledged in writing
to Bank, Xxxxxxxxx has no knowledge of or reason to believe
there is any pending or threatened investigation, claim, or
proceeding of any kind relating to (a) any Hazardous
Substance located on, under or about the Property or (b) any
violation by Mortgagor or any tenant of any Environmental
Law. Mortgagor shall Immediately notify Bank in writing as
soon as Xxxxxxxxx has reason to believe there is any such
pending or threatened investigation, claim, or proceeding.
In such an event, Bank has the right, but not the
obligation, to participate in any such proceeding including
the right to receive copies of any documents relating to
such proceedings.
(5) Except as previously disclosed and acknowledged in writing
to Bank, Xxxxxxxxx and every tenant have been, are and shall
remain in full compliance with any applicable Environmental
Law.
(6) Except as previously disclosed and acknowledged in writing
to Bank, there are no underground storage tanks, private
dumps or open xxxxx located on or under the Property and no
such tank, dump or well shall be added unless Bank first
agrees in writing.
(7) Mortgagor will regularly inspect the Property, monitor the
activities and operations on the Property, and confirm that
all permits, licenses or approvals required by any
applicable Environmental Law are obtained and complied with.
(8) Mortgagor will permit, or cause any tenant to permit, Bank
or Bank's agent to enter and inspect the Property and review
all records at any reasonable time to determine: (a) the
existence, location and nature of any Hazardous Substance
on, under or about the Property; (b) the existence,
location, nature, and magnitude of any Hazardous Substance
that has been released on, under or about the Property; (c)
whether or not Mortgagor and any tenant are in compliance
with any applicable Environmental Law.
(9) Upon Bank's request, Xxxxxxxxx agrees, at Xxxxxxxxx's
expense, to engage a qualified environmental engineer to
prepare an environmental audit of the Property and to submit
the results of such audit to Bank. The choice of the
environmental engineer who will perform such audit Is
subject to the approval of Bank.
(10) Bank has the right, but not the obligation, to perform any
of Xxxxxxxxx's obligations under this paragraph at
Xxxxxxxxx's expense.
(11) As a consequence of any breach of any representation,
warranty or promise made in this paragraph, (a) Mortgagor
will indemnify and hold Bank and Bank's successors or
assigns harmless from and against all losses, claims,
demands, liabilities, damages, cleanup, response and
remediation costs, penalties and expenses, including without
limitation all costs of litigation and reasonable attorneys'
fees to the extent not prohibited by law, which Bank and
Bank's successors or assigns may sustain; and (b) at Bank's
discretion, Bank may release this Mortgage and in return
Mortgagor will provide Bank with collateral of at least
equal value to the Property secured by this Mortgage without
prejudice to any of Bank's rights under this Mortgage.
(12) Notwithstanding any of the language contained in this
Mortgage to the contrary, the terms of this paragraph shall
survive any foreclosure or satisfaction of any deed of
trust, mortgage or any obligation regardless of any passage
of title to Bank or any disposition by Bank of any or all of
the Property. Any claims and defenses to the contrary are
hereby waived.
18. INSPECTION BY BANK. Bank or its agents may make or cause to be made
reasonable entries upon the Property and inspect the Property provided that
Bank shall make reasonable efforts to give Mortgagor prior notice of any
such inspection.
19. PROTECTION OF BANK'S SECURITY. If Mortgagor fails to perform any covenant,
obligation or agreement contained in the Note, this Mortgage or any loan
documents or if any action or proceeding is commenced which materially
affects Bank's interest in the Property, including, but not limited to,
foreclosure, eminent domain, insolvency, housing or Environmental Law or
law enforcement, or arrangements or proceedings involving a bankrupt or
decedent, then Bank, at Bank's sole option, may make such appearances,
disburse such sums, and take such action as is necessary to protect Bank's
Interest. Mortgagor hereby assigns to Bank any right Mortgagor may have by
reason of any prior encumbrance on the Property or by law or otherwise to
cure any default under said prior encumbrance. Without Bank's prior written
consent, Xxxxxxxxx will not partition or subdivide the Property,
20. COLLECTION COSTS. In the event of default and to the extent not prohibited
by law, Xxxxxxxxx agrees to pay reasonable costs incurred to collect this
debt or realize on the security. This includes without limitation,
collection agency fees or attorneys' fees, but not both, and other legal
costs and expenses incurred by Bank in exercising any remedy under this
Loan or under the law. Any such fees and expenses shall be added to the
principal amount of the Obligations and shall accrue interest at the same
rate as the Obligations and shall be secured by the Collateral and
Property.
21. CONDEMNATION. In the event all or any part of the Property (including but
not limited to any easement therein) is sought to be taken by private
taking or by virtue of the law of eminent domain, Mortgagor will promptly
give written notice to Bank of the institution of such proceedings.
Xxxxxxxxx further agrees to notify Bank of any attempt to purchase or
appropriate the Property or any easement therein, by any public authority
or by any other person or corporation claiming or having the right of
eminent domain or appropriation. Xxxxxxxxx further agrees and directs that
all condemnation proceeds or purchase money which may be agreed upon or
which may be found to be due shall be paid to Bank as a prepayment under
the Note. Xxxxxxxxx also agrees to notify the Bank of any proceedings
instituted for the establishment of any sewer, water, conservation, ditch,
drainage, or other district relating to or binding upon the Property or any
part thereof. All awards payable for the taking of title to, or possession
of, or damage to all or any portion of the Property by reason of any
private taking, condemnation, eminent domain, change of grade, or other
proceeding shall, at the option of Bank, be paid to Bank. Such awards or
compensation are hereby assigned to Bank, and judgment therefor shall be
entered in favor of Bank.
When paid, such awards shall be used, at Bank's option, toward the payment
of the Obligations or payment of taxes, assessments, repairs or other items
provided for in this Mortgage, whether due or not, all in such order and
manner as Bank may determine. Such application or release shall not cure or
waive any default. In the event Bank deems it necessary to appear or answer
in any condemnation action, hearing or proceeding, Xxxxxxxxx shall hold
Bank harmless from and pay all legal expenses, including but not limited to
reasonable attorneys' fees to the extent not prohibited by law, court costs
and other expenses.
22. OTHER PROCEEDINGS. If any action or proceeding is commenced to which Bank
is made or chooses to become a party by reason of the execution of the
Note, this Mortgage, any loan documents or the existence of any Obligations
or in which Bank deems it necessary to appear or answer in order to protect
its interests, Xxxxxxxxx agrees to pay and to hold Bank harmless for all
liabilities, costs and expenses paid or incurred by Bank in such action or
proceedings.
23. WAIVER BY XXXXXXXXX. To the extent not specifically prohibited by law,
Xxxxxxxxx hereby waives and releases any and all rights and remedies
Mortgagor may now have or acquire in the future relating to:
A. homestead;
B. exemptions as to the Property;
C. redemption;
D. appraisement;
X. xxxxxxxxxxx of lions and assets; and
F. statutes of limitations.
Mortgagor acknowledges that the Property is not used for either residential
or agricultural purposes.
In addition, redemption by Mortgagor after foreclosure sale is expressly
waived to the extent not prohibited by law.
24. BANK MAY PAY. If Mortgagor falls to pay when due any of the items it is
obligated to pay or fails to perform when obligated to perform, Bank may,
at its option:
A. pay, when due, installments of principal, interest or other
obligations, in accordance with the terms of any mortgage senior
to that of Bank's lien interest;
B. pay, when due, installments of any real estate tax imposed on the
Property; or
C. pay or perform any other obligation relating to the Property
which affects, at Bank's sole discretion, the interest of Bank in
the Property.
Xxxxxxxxx agrees to Indemnify Bank and hold Bank harmless for all the
amounts so paid and for Bank's costs and expenses.
Such payments when made by Bank shall be added to the principal balance of
the Obligations and shall bear interest at the rate provided for by the
Note as of the date of such payment. Such payments shall be a part of this
lien and shall be secured by this Mortgage, having the benefit of the lien
and its priority. Xxxxxxxxx agrees to pay and to reimburse Bank for all
such payments.
25. WAIVER OF JURY TRIAL. To the extent permitted by law, Xxxxxxxxx and Bank
hereby waive the rights which the party may
have, to a trial by jury in respect to any litigation arising from the
Obligations, or any other agreement executed in conjunction with this Loan.
Xxxxxxxxx and Bank each acknowledge that this paragraph has either been
brought to the attention of each party's legal counsel or that each party
had the opportunity to do so.
26. GENERAL PROVISIONS.
A. TIME IS OF THE ESSENCE. Time is of the essence in Xxxxxxxxx's
performance of all duties and obligations imposed by this
Mortgage.
B. NO WAIVER BY BANK. Bank's course of dealing, or Bank's
forbearance from, or delay in, the exercise of any of Bank's
rights, remedies, privileges or right to insist upon Xxxxxxxxx's
strict performance of any provisions contained in this Mortgage,
or other loan documents, shall not be construed as a waiver by
Bank, unless any such waiver is in writing and is signed by Bank.
The acceptance by Bank of any sum in payment or partial payment
on the Obligations after the balance is due or is accelerated or
after foreclosure proceedings are filed shall not constitute a
waiver of Bank's right to require full and complete cure of any
existing default for which such actions by Bank were taken or its
right to require prompt payment when due of all other remaining
sums due under the Obligations, nor will it cure or waive any
default not completely cured or any other defaults, or operate as
a defense to any foreclosure proceedings or deprive Bank of any
rights, remedies and privileges due Bank under the Note, this
Mortgage, other loan documents, the law or equity.
C. AMENDMENT. The provisions contained in this Mortgage may not be
amended, except through a written amendment which is signed by
Xxxxxxxxx and Bank.
D. INTEGRATION CLAUSE. This written Mortgage and all documents
executed concurrently herewith, represent the entire
understanding between the parties as to the Obligations and may
not be contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements of the parties.
E. FURTHER ASSURANCES. Xxxxxxxxx agrees, upon request of Bank and
within the time Bank specifies, to provide any information, and
to execute, acknowledge, deliver and record or file such further
instruments or documents as may be required by Bank to secure the
Note or confirm any lien.
F. GOVERNING LAW. This Mortgage shall be governed by the laws of the
State of KANSAS, provided that such laws are not otherwise
preempted by federal laws and regulations.
G. FORUM AND VENUE. In the event of litigation pertaining to this
Mortgage, the exclusive forum, venue and place of jurisdiction
shall be in the State of KANSAS, unless otherwise designated in
writing by Bank or otherwise required by law.
H. SUCCESSORS. This Mortgage shall inure to the benefit of and bind
the heirs, personal representatives, successors and assigns of
the parties; provided however, that Mortgagor may not assign,
transfer or delegate any of the rights or obligations under this
Mortgage.
I. NUMBER AND GENDER. Whenever used, the singular shall include the
plural, the plural the singular, and the use of any gender shall
be applicable to all genders.
J. DEFINITIONS. The terms used in this Mortgage, it not defined
herein, shall have their meanings as defined in the other
documents executed contemporaneously, or in conjunction, with
this Mortgage.
K. PARAGRAPH HEADINGS. The headings at the beginning of any
paragraph, or any subparagraph, in this Mortgage are for
convenience only and shall not be dispositive in interpreting or
construing this Mortgage.
L. IF HELD UNENFORCEABLE. If any provision of this Mortgage shall be
held unenforceable or void, then such provision to the extent not
otherwise limited by law shall be severable from the remaining
provisions and shall in no way affect the enforceability of the
remaining provisions nor the validity of this Mortgage.
M. CHANGE IN APPLICATION. Xxxxxxxxx will notify Bank in writing
prior to any change in Mortgagor's name, address, or other
application Information.
N. NOTICE. All notices under this Mortgage must be in writing. Any
notice given by Bank to Mortgagor hereunder will be effective
upon personal delivery or 24 hours after mailing by first class
United States mail, postage prepaid, addressed to Xxxxxxxxx at
the address indicated below Xxxxxxxxx's name on page one of this
Mortgage. Any notice given by Xxxxxxxxx to Bank hereunder will be
effective upon receipt by Bank at the address indicated below
Bank's name on page one of this Mortgage. Such addresses may be
changed by written notice to the other party.
O. FILING AS FINANCING STATEMENT. Xxxxxxxxx agrees and acknowledges
that this Mortgage also suffices as a financing statement and as
such, may be filed of record as a financing statement for
purposes of Article 9 of the KANSAS Uniform Commercial Code. A
carbon, photographic or other reproduction of this Mortgage is
sufficient as a financing statement.
27. ACKNOWLEDGMENT. By the signature(s) below, Xxxxxxxxx acknowledges that this
Mortgage has been read and agreed to and that a copy of this Mortgage has
been received by the Mortgagor.
MORTGAGOR:
AFI MORTGAGE CORP. F/K/A CONTINENTAL MORTGAGE
a Nebraska corporation
(Corporate Seal*)
By: _______________________________________
XXXXXXX X. XXXXXX,
XX. VICE PRESIDENT
_______________________________________
Attest
(*Corporate seal may be affixed, but failure to affix shall not affect
validity or reliance.)
STATE OF )
) ss:
COUNTY OF )
This instrument was acknowledged before me on _____________________, 19___
by XXXXXXX X. XXXXXX, SENIOR VICE PRESIDENT OF AFI MORTGAGE CORP. F/K/A
Continental Mortgage, a NEBRASKA corporation , on behalf of said corporation.
______________________________________
NOTARY PUBLIC
My appointment expires:
_______________________
Please return this document after recording to CITIZENS NATIONAL BANK OF FORT
XXXXX, 000 Xxxxx Xxxx, X.X. Box 899, Fort Xxxxx, Kansas 66701.
THIS IS THE LAST PAGE OF A 5 PAGE DOCUMENT. EXHIBITS AND/OR ADDENDA MAY FOLLOW.
--------------------------------------------------------------------------------
LOAN NO. LOAN NAME ACCOUNT NO. NOTE DATE RATE NOTE AMOUNT MATURITY INITIALS
12784 ADVANCED 04/01/98 11.75% $725,163.73 10/01/98 JRS
(For Bank Purposes Only-AC)
--------------------------------------------------------------------------------
PROMISSORY NOTE
(Business Purpose)
CITIZENS NATIONAL BANK
--------------------------------------------------------------------------------
1. DATE AND PARTIES. The date of this Promissory Note (Note) is April 1,
1998. This Note evidences a loan which includes all extensions, renewals,
modifications and substitutions (Loan). The patties to this Note and Loan
are:
BORROWER:
ADVANCED FINANCIAL, INC.
a Delaware corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Tax I.D. # 00-0000000
AFI MORTGAGE CORP. F/K/A CONTINENTAL MORTGAGE, INC.
a Nebraska corporation
0000 Xxxxxxxxxx
Xxxxxxx, XX 00000
Tax I.D. # 00-0000000
BANK:
CITIZENS NATIONAL BANK
a national banking association
7900 Quivera
Lenexa, Kansas 66215
Tax I.D. # 00-0000000
Branch No. 012
2. PROMISE TO PAY. For value received, Xxxxxxxx promises to pay to Bank's
order at its office at the above address, or such other place as Bank
may designate, the sum of $725,163.73 (Principal) plus interest from
April 1, 1998, on the unpaid principal balance at the late of 11.75% per
annum (Contract Rate) until this Note matures or the obligation is
accelerated. After maturity or acceleration, the unpaid balance shall
bear interest at the rate of 16.75% per annum, or if less, the maximum
allowable rate permitted by law, until this Note is paid in full. The
Loan and this Note are limited to the maximum lawful amount of interest
(Maximum Lawful Interest) permitted under federal and state laws. If
the interest accrued and collected exceeds the Maximum Lawful Interest
as of the time of collection, such excess shall be applied to reduce the
principal amount outstanding, unless otherwise required by law. If or
when no principal amount is outstanding, any excess interest shall be
refunded to Borrower according to the actuarial method. Interest shall
be computed on the basis of a 360-day year and the actual number of days
elapsed.
Principal and accrued interest are due and payable in 5 equal monthly
payments of $8,812.01 on the 1st day of each month, beginning May 1, 1998,
or the day following if the payment day is a holiday or is a non-business
day for Bank. Unless paid prior to maturity, the last scheduled payment
plus all other unpaid principal, accrued interest, costs and expenses are
due and payable on October 1, 1996, which is the date of maturity. These
payment amounts are based upon timely payment of each installment. All
amounts shall be paid in legal U.S. currency. Any payment made with a
check will constitute payment only when collected.
3. EFFECT OF PREPAYMENT. Borrower may prepay this Loan in full, subject to
any prepayment penalty or minimum charge as agreed to below. However, no
partial prepayment shall excuse or defer Borrower's subsequent payments or
entitle Borrower to a release of any collateral. Interest will cease to
accrue on the amounts prepaid on the day actually credited by Xxxx.
4. RIGHT TO PREPAY. Borrower may prepay this Note in whole or in part,
without penalty.
5. LATE CHARGE. Xxxxxxxx agrees to pay Bank a late charge equal to 5% of the
unpaid installment or $25.00, whichever is less, it payment is not made in
full on or before 10 days after the scheduled due date.
6. RETURNED CHECK CHARGE. To the extent not prohibited by law, Xxxxxxxx
agrees to pay Bank $10.00 for each check presented for payment and
dishonored because of insufficient funds or no account. This charge will
be assessed 14 days after the date of million demand.
7. EVENTS OF DEFAULT. Borrower shall be in default upon the occurrence of
any of the following events, circumstances or conditions (Events of
Default):
A. Failure by any party obligated on this Note or any other
obligations Borrower has with Bank to make payment where due; or
B. A default or breach by Borrower or any co-signer, endorser, surety,
or guarantee under any of the terms of this Note, any construction
loan agreement or other loan agreement, any Security agreement,
mortgage, deed to secure debt, deed of trust, trust deed, or any other
document or instrument evidencing, guarantying, securing or otherwise
relating to this Note or any other obligations Borrower has with Bank;
or
C. The making or furnishing of any verbal or written
representation, statement or warranty to Bank which is or becomes
false or incorrect in any material respect by or on behalf of
Borrower, or any one of them, or any co-signer, endorser, surety or
guarantor of this Note or any other obligations Borrower has with
Bank; or
D. Failure to obtain or maintain the insurance coverages required by
Bank, or insurance as is customary and proper for any collateral (as
herein defined); or
E. The death, dissolution or insolvency of, the appointment of a
receiver by or on behalf of, the assignment for the benefit of
creditors by or on behalf of, the voluntary or involuntary termination
of existence by, or the commencement of any proceeding under any
present or future federal or state insolvency, bankruptcy,
reorganization, composition or debtor relief law by or against
Borrower, or any one of them, or any co-signer, endorser, surety or
guarantor of this Note or any other obligations Borrower has with
Bank; or
F. A good faith belief by Bank at any time that Bank is insecure with
respect to Borrower, or any co-signer, endorser, surety or guarantee,
that the prospect of any payment is impaired or that any collateral
(as herein defined) is impaired; or
G. Failure to pay or provide proof of payment of any tax,
assessment, rent, insurance premium, escrow or escrow deficiency on or
before its due date; or
H. A material adverse change in Borrower's business, including
ownership, management, and financial conditions, which in Bank's
opinion, impairs any collateral or repayment of the Obligations; or
I. A transfer of a substantial part of Xxxxxxxx's money or property.
8. REMEDIES ON DEFAULT. On or after the occurrence of an Event of Default,
at the option on Bank, all or any part of the Principal and accrued
interest on this Note, the Loan and all other obligations which Borrower
owes Bank shall become immediately due and payable without notice or
demand. Bank may exercise all rights and remedies provided by law,
equity, this Note, any mortgage, deed of trust or similar instrument and
any other security, loan, guaranty or surety agreements pertaining to
this Note and all other obligations of Borrower to Bank. Bank is
entitled to all rights and remedies provided at law or equity whether or
not expressly stated in this Note. By choosing any remedy, Bank does
not waive its right to an immediate use of any other remedy if the event
of default continues or occurs again. In addition to the remedies
provided by law upon default, Bank also has the right of set-off against
this Note, including but without limiting the generality, all money owed
by Bank to Borrower, whether or not due.
9. COLLECTION COSTS. In the event of default and to the extent not
prohibited by law, Xxxxxxxx agrees to pay reasonable costs incurred to
collect this debt or realize on the security. This includes without
limitation, collection agency fees or attorneys' fees, but not both, and
other legal costs and expenses incurred by Bank in exercising any remedy
under this Loan or under the law. Any such fees and expenses shall be
added to the principal amount of this Note and shall accrue interest at
the same rate as this Note and shall be secured by the Collateral and
Property.
10. NO DUTY BY BANK. Bank is under no duty to preserve or protect any
Collateral until Bank is in actual, or constructive, possession of the
Collateral.
or purposes of this paragraph, Bank shall only be considered to be in
"actual" possession of the Collateral when Bank has physical, immediate
and exclusive control over the Collateral and has affirmatively accepted
such control. Bank shall only be considered to be in "constructive"
possession the Collateral when Bank has both the power and the intent to
exercise control over the Collateral.
11. WAIVER AND CONSENT BY XXXXXXXX AND OTHER SIGNERS. Regarding this Note, to
the extent not prohibited by law, Borrower and any other signers:
X. xxxxx protest, presentment for payment, demand, notice of
acceleration, notice of intent to accelerate and notice of dishonor.
B. consent to any renewals and extensions for payment on this Note,
regardless of the number of such renewals or extensions.
C. consent to Bank's release of any borrower, endorser, guarantee,
surety, accommodation maker or any other co-signer.
D. consent to the release, substitution or impairment of any collateral.
E. consent that Borrower, or any Borrower herein, is authorized to
modify the terms of this Note or any instrument securing, guarantying
or relating to this Note.
F. consent to Bank's right of set-off as well as any right of
set-off of any bank participating in the Loan.
G. consent to any and all sales, repurchases and participations of
this Note to any person in any amounts and waive notice of such sales,
repurchases or participations of this Note.
12. SECURITY. This Note is secured by the following type(s) (or items) of
property (Collateral):
Real Estate
The real property portion of the Collateral includes the following
described property (Property) situated in XXXXXXX County, KANSAS, to-wit:
Lot 1, Block 2, MILLWOOD BUSINESS PARK FIRST PLAT, a subdivision in
the city of Shawnee, Xxxxxxx County, Kansas.
The Property may be commonly referred to as 0000
Xxxxxxxxxx, Xxxxxxx, Xxxxxx
The term "Collateral" further includes, but is not limited to, the
following property, whether now owned or hereafter acquired, and whether
or not held by a bailee for the benefit of the Owner or Owners, all:
accessions, accessories, additions, fittings, increases, insurance
benefits and proceeds, parts, products, profits, renewals, rents,
replacements, special tools and substitutions, together with all books and
records pertaining to the Collateral and access to the equipment
containing such books and records including computer stored information
and all software relating thereto, plus all cash and non-cash proceeds and
all proceeds of proceeds arising from the type(s) (items) of property
listed above.
This Note is secured by the following described real estate documents: (1)
REAL ESTATE MORTGAGE EXECUTED BY AFI MORTGAGE CORP., F/K/A CONTINENTAL
MORTGAGE ON FEBRUARY 3, 1997 FOR $739,031.00 AND RECORDED IN THE REGISTER
OF DEEDS FOR XXXXXXX COUNTY ON FEBRUARY 14, 1997 AS DOCUMENT #2677207, IN
BOOK 5109, AT PAGE 99. (2) SUBORDINATION AGREEMENT EXECUTED BY FIRST
MORTGAGE DIVESTMENT, CO. ON FEBRUARY 3, 1997 SUBORDINATING THEIR FIRST
MORTGAGE THAT WAS RECORDED IN THE REGISTER OF DEEDS FOR XXXXXXX COUNTY ON
APRIL 10, 1996 AS DOCUMENT #2585617 IN BOOK 4846 AT PAGE 23 TO CITIZENS
NATIONAL BANK.
13. PAYMENTS APPLIED. All payments, including but not limited to regular
payments or prepayments, received by Bank shall be applied first to costs,
then to interest and the balance, it any, to Principal except as otherwise
required by law.
14. LOAN PURPOSE. Borrower represents and warrants that the purpose of this
Loan is renewal of Note #12558 with an increase which was origin any used
refinance mortgage.
15. JOINT AND SEVERAL. Borrower, and any one of them, or any other signers
shall be jointly and severally liable under this Note.
16. FINANCIAL STATEMENTS. Until this Note is paid, in full, Borrower shall
furnish Bank upon Bank's request and in the event at no request, at least
annually a current financial statement which is certified by Borrower and
Xxxxxxxx's accountant to be true, complete and accurate.
17.
GENERAL PROVISIONS.
A. TIME IS OF THE ESSENCE. Time is of the essence in Xxxxxxxx's
performance of all duties and obligations imposed by this Note.
B. NO WAIVER BY BANK. Bank's course of dealing, or Bank's
forbearance from, or delay in, the exercise of any of Bank's rights,
remedies, privileges or right to insist upon Xxxxxxxx's strict
performance of any provisions contained in this Note, or other loan
documents, shall not be construed as a waiver by Bank, unless any such
waiver is in writing and is signed by Bank.
C. AMENDMENT. The provisions contained in this Note may not be amended,
except through a written amendment which is signed by Xxxxxxxx and
Bank.
D. INTEGRATION CLAUSE. This written Note and all documents executed
concurrently herewith, represent the entire understanding between the
parties is to the Obligations and may not be contradicted by evidence
of prior, contemporaneous, or subsequent oral agreements of the
parties.
E. FURTHER ASSURANCES. Xxxxxxxx agrees, upon request of Bank and
within the time Bank specifies, to provide any information, and to
execute, acknowledge, deliver and record or file such further
instruments or documents as may be required by Bank to secure this
Note or confirm any lien.
F. GOVERNING LAW. This Note shall be governed by the laws of the State
of KANSAS, provided that such laws ate not otherwise preempted by
federal laws and regulations.
G. FORUM AND VENUE. In the event of litigation pertaining to this
Note, the exclusive forum, venue and place of jurisdiction shall be in
the State of KANSAS, unless otherwise designated in writing by Bank or
otherwise required by law.
H. SUCCESSORS. This Note shall inure to the benefit of and bind the
heirs, personal representatives, successors and assigns of the
parties; provided however, that Borrower may not assign, transfer or
delegate any of the rights or obligations under this Note.
I. NUMBER AND GENDER. Whenever used, the singular shall include
the plural, the singular, and the use of any gender shall be
applicable to all genders.
J. DEFINITIONS. The terms used in this Note, if not defined herein,
shall have their meanings as defined in the other documents executed
contemporaneously, or in conjunction, with this Note.
K. PARAGRAPH HEADINGS. The headings at the beginning of any paragraph, or
any subparagraph, in this Note are for convenience only and shall not
be dispositive in interpreting or construing this Note.
L. IF HELD UNENFORCEABLE. If any provision of this Note shall be
found unenforceable or void, then such provision to the extent not
otherwise limited by law shall be severable from the remaining
provisions and shall in no way affect the enforceability of the
remaining provisions nor the validity of this Note.
M. CHANGE IN APPLICATION. Borrower will notify Bank in writing
prior to any change in Borrower's name, address, or other application
information.
N. NOTICE. All notices under this Note must be in writing. Any notice
given by Bank to Borrower hereunder will be effective upon personal
delivery or 24 hours after mailing by first class United States mail,
postage prepaid, addressed to Borrower at the address indicated below
Xxxxxxxx's name on page one of this Note. Any notice given by Borrower
to Bank hereunder will be effective upon receipt by Bank at the
address indicated below Bank's name on page one of this Note. Such
addresses may be changed by written notice to the other party.
X. XXXXXX. The term "Bank" shall include any transferee and
assignee of Bank or other holder of this Note.
X. XXXXXXXX DEFINED. The term "Borrower" includes each and every
person signing this Note as a Borrower and any co-signers.
18. WAIVER OF JURY TRIAL. To the extent permitted by law, Borrower and Bank
hereby waive the right, which either party may have, to a trial by jury in
respect to any litigation arising from this Note or any other agreement
executed in conjunction with this Loan. Borrower and Bank each acknowledge
that this paragraph has either been brought to the attention of each
party's legal counsel or that each party had the opportunity to do so.
19. RECEIPT OF COPY. By signing below, Xxxxxxxx acknowledges that Xxxxxxxx has
read and received a copy of this Note.
BORROWER:
ADVANCED FINANCIAL, INC. (Corporate Seal*)
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
XXXXXXX X. XXXXXX, XX. VICE PRESIDENT
_______________________________________
Attest
(Corporate seal may be affixed, but failure to affix shall not affect
validity or reliance.)
AFI MORTGAGE CORP. F/K/A CONTINENTAL MORTGAGE, INC.
a Nebraska corporation
By: /s/ Xxxxxxx X. Xxxxxx
______________________________________
XXXXXXX X. XXXXXX, XX. VICE PRESIDENT
______________________________________
Attest
(Corporate seal may be affixed, but failure to affix shall not affect
validity or reliance.)
THIS IS THE LAST PAGE OF A 3 PAGE DOCUMENT. EXHIBITS AND/OR ADDENDA
MAY FOLLOW.
--------------------------------------------------------------------------------
LOAN NO. LOAN NAME ACCOUNT NO. NOTE DATE RATE NOTE AMOUNT MATURITY INITIALS
12586 ADVANCED 02/03/98 11.75% $739,031.00 03/29/98 JRS
FINANCIAL
(For Bank Purposes Only-AC)
--------------------------------------------------------------------------------
PROMISSORY NOTE
(Business Purpose)
CITIZENS NATIONAL BANK OF FORT XXXXX
--------------------------------------------------------------------------------
1. DATE AND PARTIES. The date of this Promissory Note (Note) is February 3,
1997. This Note evidences a loan which includes all extensions, renewals,
modifications and substitutions (Loan). The parties to this Note and Loan
are:
BORROWER:
ADVANCED FINANCIAL, INC.
a DELAWARE corporation
0000 XXXXXXXXXX XXXXXX
XXXXXXX, XXXXXX 00000
AFI MORTGAGE CORP. F/K/A CONTINENTAL MORTGAGE
a NEBRASKA corporation
0000 XXXXXXXXXX
XXXXXXX, XX 00000
BANK:
CITIZENS NATIONAL BANK OF FORT XXXXX
a national banking association
000 Xxxxx Xxxx
X.X. Bxo 899
Fort Xxxxx, Kansas 66701
2. PROMISE TO PAY.For value received, Borrower promises to pay to Bank's order
at its office at the above address, or such other place as Bank may
designate, the sum of $739,031.00 (Principal) plus interest from February
3, 1997, on the unpaid principal balance at the rate of 11.75% per annum
(Contract Rate) until this Note matures or the obligation is accelerated.
After maturity or acceleration, the unpaid balance shall continue to bear
interest at the Contract Rate until this Note is paid in full. The Loan and
this Note are limited to the maximum lawful amount of interest (Maximum
Lawful Interest) permitted under federal and state laws. If the interest
accrued and collected exceeds the Maximum Lawful Interest as of the time of
collection, such excess shall be applied to reduce the principal amount
outstanding, unless otherwise required by law. If or when no principal
amount is outstanding, any excess interest shall be refunded to Borrower
according to the actuarial method. Interest shall be computed on the basis
of a 360-day year and the actual number of days elapsed.
X. XXXXXXXX AGREES TO MAKE THIRTEEN (13) MONTHLY PRINCIPAL AND INTEREST
PAYMENTS OF $8,812.01 BEGINNING FEBRUARY 28, 1997. ALL OTHER UNPAID
RINCIPAL AND ACCRUED INTEREST SHALL BE DUE IN FULL ON MARCH 28, 1998,
WHICH IS THE DATE OF MATURITY. ALL AMOUNTS SHALL BE PAID IN U.S.
CURRENCY. ANY PAYMENT MADE WITH A CHECK WILL CONSTITUTE PAYMENT ONLY
WHEN COLLECTED.
3. EFFECT OF PREPAYMENT. Borrower may prepay this Loan in full, subject to any
prepayment penalty or minimum charge as agreed to below. However, no
partial prepayment shall excuse or defer Borrower's subsequent payments or
entitle Borrower to a release of any collateral. Interest will cease to
accrue on the amounts prepaid on the day actually credited by Xxxx.
4. RIGHT TO PREPAY. Borrower may prepay this Note in whole or in part, without
penalty.
5. LATE CHARGE. Xxxxxxxx agrees to pay Bank a late charge equal to 5% of the
unpaid installment or $25.00, whichever is less, if payment is not made in
full on or before 10 days after the scheduled due date.
6. RETURNED CHECK CHARGE. To the extent not prohibited by law, Xxxxxxxx agrees
to pay Bank $10.00 for each check presented for payment and dishonored
because of insufficient funds or no account. This charge will be assessed
14 days after the date of million demand.
7. EVENTS OF DEFAULT. Borrower shall be in default upon the occurrence of any
of the following events, circumstances or conditions (Events of Default):
A. Failure by any party obligated on this Note or any other obligations
Borrower has with Bank to make payment where due; or
B. A default or breach by Borrower or any co-signer, endorser, surety, or
guarantor under any of the terms of this Note, any construction loan
agreement or other loan agreement, any Security agreement, mortgage,
deed to secure debt, deed of trust, trust deed, or any other document
or instrument evidencing, guarantying, securing or otherwise relating
to this Note or any other obligations Borrower has with Bank; or
C. The making or furnishing of any verbal or written representation,
statement or warranty to Bank which is or becomes false or incorrect
in any material respect by or on behalf of Borrower, or any one of
them, or any co-signer, endorser, surety or guarantor of this Note or
any other obligations Borrower has with Bank; or
D. Failure to obtain or maintain the insurance coverages required by
Bank, or insurance as is customary and proper for any collateral (as
herein defined); or
E. The death, dissolution or insolvency of, the appointment of a receiver
by or on behalf of, the assignment for the benefit of creditors by or
on behalf of, the voluntary or involuntary termination of existence
by, or the commencement of any proceeding under any present or future
federal or state insolvency, bankruptcy, reorganization, composition
or debtor relief law by or against Borrower, or any one of them, or
any co-signer, endorser, surety or guarantor of this Note or any other
obligations Borrower has with Bank; or
F. A good faith belief by Bank at any time that Bank is insecure with
respect to Borrower, or any co-signer, endorser, surety or guarantee,
that the prospect of any payment is impaired or that any collateral
(as herein defined) is impaired; or
G. Failure to pay or provide proof of payment of any tax, assessment,
rent, insurance premium, escrow or escrow deficiency on or before its
due date; or
H. A material adverse change in Borrower's business, including ownership,
management, and financial conditions, which in Bank's opinion, impairs
any collateral or repayment of the Obligations; or
I. A transfer of a substantial part of Xxxxxxxx's money or property.
8. LOAN FEE. Xxxxxxxx has agreed to pay Bank a non-refundable loan fee of
$10,875.00, which will either be paid in cash upon execution of this Note,
or be financed as a portion of the Principal
9. REMEDIES ON DEFAULT. On or after the occurrence of an Event of Default, at
the option on Bank, all or any part of the Principal and accrued interest
on this Note, the Loan and all other obligations which Borrower owes Bank
shall become immediately due and payable without notice or demand. Bank may
exercise all rights and remedies provided by law, equity, this Note, any
mortgage, deed of trust or similar instrument and any other security, loan,
guaranty or surety agreements pertaining to this Note and all other
obligations of Borrower to Bank. Bank is entitled to all rights and
remedies provided at law or equity whether or not expressly stated in this
Note. By choosing any remedy, Bank does not waive its right to an immediate
use of any other remedy if the event of default continues or occurs again.
In addition to the remedies provided by law upon default, Bank also has the
right of set-off against this Note, including but without limiting the
generality, all money owed by Bank to Borrower, whether or not due.
10. COLLECTION COSTS. In the event of default and to the extent not prohibited
by law, Xxxxxxxx agrees to pay reasonable costs incurred to collect this
debt or realize on the security. This includes without limitation,
collection agency fees or attorneys' fees, but not both, and other legal
costs and expenses incurred by Bank in exercising any remedy under this
Loan or under the law. Any such fees and expenses shall be added to the
principal amount of this Note and shall accrue interest at the same rate as
this Note and shall be secured by the Collateral and Property.
11. NO DUTY BY XXXX.Xxxx is under no duty to preserve or protect any
Collateral.
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until Bank is in actual, or constructive, possession of the Collateral. For
purposes of this paragraph, Bank shall only be considered to be in "actual"
possession of the Collateral when Bank has physical, immediate and
exclusive control over the Collateral and has affirmatively accepted such
control. Bank shall only be considered to be in "constructive" possession
the Collateral when Bank has both the power and the intent to exercise
control over the Collateral.
12. WAIVER AND CONSENT BY XXXXXXXX AND OTHER SIGNERS. Regarding this Note, to
the extent not prohibited by law, Borrower and any other signers:
X. xxxxx protest, presentment for payment, demand, notice of
acceleration, notice of intent to accelerate and notice of dishonor.
B. consent to any renewals and extensions for payment on this Note,
regardless of the number of such renewals or extensions.
C. consent to Bank's release of any borrower, endorser, guarantee,
surety, accommodation maker or any other co-signer.
D. consent to the release, substitution or impairment of any collateral.
E. consent that Borrower, or any Borrower herein, is authorized to modify
the terms of this Note or any instrument securing, guarantying or
relating to this Note.
F. consent to Bank's right of set-off as well as any right of set-off of
any bank participating in the Loan.
G. consent to any and all sales, repurchases and participations of this
Note to any person in any amounts and waive notice of such sales,
repurchases or participations of this Note.
13. SECURITY. This Note is secured by the following type(s) (or items) of
property (Collateral):
Real Estate
The real property portion of the Collateral includes the following
described property (Property) situated in XXXXXXX County, KANSAS, to-wit:
Lot 1, Block 2, MILLWOOD BUSINESS PARK FIRST PLAT, A
SUBDIVISION IN THE CITY OF SHAWNEE, XXXXXXX COUNTY,
KANSAS.
The Property may be commonly referred to as 5425
MARTINDALE, SHAWNEE, KANSAS
The term "Collateral" further includes, but is not limited to, the
following property, whether now owned or hereafter acquired, and whether
or not held by a bailee for the benefit of the Owner or Owners, all:
accessions, accessories, additions, fittings, increases, insurance
benefits and proceeds, parts, products, profits, renewals, rents,
replacements, special tools and substitutions, together with all books and
records pertaining to the Collateral and access to the equipment
containing such books and records including computer stored information
and all software relating thereto, plus all cash and non-cash proceeds and
all proceeds of proceeds arising from the type(s) (items) of property
listed above.
This Note is secured by the following described real estate documents: A
SEPARATE REAL ESTATE MORTGAGE DATED FEBRUARY 3, 1997.
14. PAYMENTS APPLIED. All payments, including but not limited to regular
payments or prepayments, received by Bank shall be applied first to costs
and then in an appropriate manner as determined by Bank in its sole
discretion except as otherwise required by law.
15. LOAN PURPOSE. Borrower represents and warrants that the proceeds of this
Note shall only be used for business purposes.
16. JOINT AND SEVERAL. Borrower, and any one of them, or any other signers
shall be jointly and severally liable under this Note.
17. FINANCIAL STATEMENTS. Until this Note is paid, in full, Borrower shall
furnish Bank upon Bank's request and in the event at no request, at least
annually a current financial statement which is certified by Borrower and
Xxxxxxxx's accountant to be true, complete and accurate.
18. GENERAL PROVISIONS.
A. TIME IS OF THE ESSENCE. Time is of the essence in Xxxxxxxx's
performance of all duties and obligations imposed by this Note.
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B. NO WAIVER BY BANK. Bank's course of dealing, or Bank's forbearance
from, or delay in, the exercise of any of Bank's rights, remedies,
privileges or right to insist upon Xxxxxxxx's strict performance of
any provisions contained in this Note, or other loan documents, shall
not be construed as a waiver by Bank, unless any such waiver is in
writing and is signed by Bank.
C. AMENDMENT. The provisions contained in this Note may not be amended,
except through a written mendment which is signed by Xxxxxxxx and
Bank.
D. INTEGRATION CLAUSE. This written Note and all documents executed
concurrently herewith, represent the entire understanding between the
parties as to the Obligations and may not be contradicted by evidence
of prior, contemporaneous, or subsequent oral agreements of the
parties.
E. FURTHER ASSURANCES. Xxxxxxxx agrees, upon request of Bank and within
the time Bank specifies, to provide any Information, and to execute,
acknowledge, deliver and record or file such further Instruments or
documents as may be required by Bank to secure this Note or confirm
any lion.
F. GOVERNING LAW. This Note shall be governed by the laws of the State of
KANSAS, provided that such laws are not otherwise preempted by federal
laws and regulations.
` G. FORUM AND VENUE. In the event of litigation pertaining to this Note,
the exclusive forum, venue and place of jurisdiction shall be in the
State of KANSAS, unless otherwise designated in writing by Bank or
otherwise required by law.
H. SUCCESSORS. This Note shall inure to the benefit of and bind the
heirs, personal representatives, successors and assigns of the
parties; provided however, that Borrower may not assign, transfer or
delegate any of the rights or obligations under this Note.
I. NUMBER AND GENDER. Whenever used, the singular shall include the
plural, the plural the singular, and the use of any gender shall be
applicable to all genders.
J. DEFINITIONS. The terms used in this Note, if not defined herein, shall
have their meanings as defined in the other documents executed
contemporaneously, or in conjunction, with this Note.
K. PARAGRAPH HEADINGS. The headings at the beginning of any paragraph, or
any subparagraph, in this Note are for convenience only and shall not
be dispositive in interpreting or construing this Note.
L. IF HELD UNENFORCEABLE. If any provision of this Note shall be held
unenforceable or void, then such provision to the extent not otherwise
limited by law shall be severable from the remaining provisions and
shall in no way affect the enforceability of the remaining provisions
nor the validity of this Note.
M. CHANGE IN APPLICATION. Borrower will notify Bank in writing prior to
any change in Borrower's name, address, or. other application
information.
N. NOTICE. All notices under this Note must be in writing. Any notice
given by Bank to Borrower hereunder will be effective upon personal
delivery or 24 hours after mailing by first class United States mail,
postage prepaid, addressed to Borrower at the address indicated below
Xxxxxxxx's name on page one of this Note. Any notice given by Borrower
to Bank hereunder will be effective upon receipt by Bank at the
address indicated below Bank's name on page one of this Note. Such
addresses may be changed by written notice to the other party.
X. XXXXXX. The term "Bank" shall include any transferee and assignee of
Bank or other holder of this Note.
X. XXXXXXXX DEFINED. The term "Borrower" includes each and every person
signing this Note as a Borrower and any co-signers,
19. WAIVER OF JURY TRIAL. To the extent permitted by law, Borrower and Bank
hereby waive the right, which either party may have, to a trial by jury in
respect to any litigation arising from this Note or any other agreement
executed in conjunction with this Loan. Borrower and Bank each acknowledge
that this paragraph has either been brought to the attention of each
party's legal counsel or that each party had the opportunity to do so.
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20. RECEIPT OF COPY. By signing below, Xxxxxxxx acknowledges that Xxxxxxxx has
read and received a copy of this Note.
BORROWER:
ADVANCED FINANCIAL, INC. (Corporate Seal*)
a NEBRASKA corporation
By: /s/ Xxxxxxx X. Xxxxxx
____________________________________
XXXXXXX X. XXXXXX, XX. VICE PRESIDENT
Attest
(Corporate seal may be affixed, but failure to affix shall not affect
validity or reliance.)
AFI MORTGAGE CORP. F/K/A CONTINENTAL MORTGAGE, INC.
a Nebraska corporation
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
XXXXXXX X. XXXXXX, XX. VICE PRESIDENT
Attest
(Corporate seal may be affixed, but failure to affix shall not affect
validity or reliance.)
THIS IS THE LAST PAGE OF A 3 PAGE DOCUMENT. EXHIBITS AND/OR
ADDENDA MAY FOLLOW.
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