Recorded at the Request of and EXHIBIT 10.36
When Recorded Return to:
Pepe & Hazard LLP
000 Xxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
DEED OF TRUST AND SECURITY AGREEMENT
This DEED OF TRUST AND SECURITY AGREEMENT (the "MORTGAGE") is dated as
of the _____ day of October, 2003, by OMAHA STORE NO. 166 L.L.C., a Delaware
limited liability company ("BORROWER"), having its principal office at 00000
Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000 to and in favor of
FIDELITY NATIONAL TITLE INSURANCE COMPANY, a California corporation, having an
address at 0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (the
"TRUSTEE"), as trustee for NATIONWIDE LIFE INSURANCE COMPANY, an Ohio
corporation, its successors and assigns ("LENDER"), having its principal office
at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000-0000, Attention: Real Estate
Investment Department, 34T, or at such other place as Lender may from time to
time designate.
W I T N E S S E T H:
WHEREAS, Lender has made four loans of even date herewith in
the aggregate total original principal amount of Fifteen Million Dollars
($15,000,000.00) (the "AGGREGATE LOAN"). The Aggregate Loan is comprised of the
following loans of even date herewith: a loan from Lender to Borrower in the
original principal amount of $3,910,000.00 (this "LOAN"); a loan to ACMP
Germantown LLC, a Delaware limited liability company ("AGREE-MILESTONE"), in the
original principal amount of $3,310,000.00 (the "AGREE-MILESTONE LOAN"); a loan
to ACCP Maryland LLC, a Delaware limited liability company ("AGREE-COLUMBIA") in
the original principal amount of $3,520,000.00 (the "AGREE-COLUMBIA LOAN"); and
a loan to Oklahoma City Store No. 151 L.L.C., a Delaware limited liability
company ("OKLAHOMA CITY"), in the original principal amount of $4,260,000.00
(the "OKLAHOMA CITY LOAN") Agree-Milestone, Agree-Columbia and Oklahoma City are
hereinafter referred to collectively as the "AFFILIATED BORROWERS". The
Agree-Milestone Loan, the Agree-Columbia Loan and the Oklahoma City Loan are
hereinafter referred to generically as an "AFFILIATE LOAN" and collectively as
the "AFFILIATE LOANS";
Omaha, Nebraska
WHEREAS, Borrower is justly indebted to Lender in the original
principal sum of Three Million Nine Hundred Ten Thousand and 00/100 Dollars
($3,910,000.00) with interest thereon, which Loan is evidenced and represented
by that certain Note of even date herewith (the "NOTE"), both principal and
interest being payable as therein provided, with the first payment on the Note
becoming due and payable on the date of disbursement and the term "Note" shall
include all other notes given in substitution, modification, increase, renewal
or extension of the original Note described herein, in whole or in part;
WHEREAS Borrower has guaranteed the payment and performance of the
obligations of the Affiliated Borrowers with respect to the Affiliate Loans
pursuant to the terms of that certain Cross-Default Guaranty Agreement of even
date herewith from Borrower, as guarantor, to Lender (the "BORROWER
CROSS-DEFAULT GUARANTY"); and
WHEREAS, Lender, as a condition precedent to the extension of credit
and the making of the Loan has required that Borrower provide Lender with
security for the repayment of the Loan as well as for the performance,
observance and discharge by Borrower of various terms, covenants, conditions and
agreements made by Borrower to, with, in favor of and for the benefit of Lender
with respect to the Loan and such security;
NOW THEREFORE, in consideration of and in order to secure the repayment
of the Loan evidenced and represented by the Note, together with interest on the
Loan, as well as the payment of all other sums of money secured hereby, as
hereinafter provided; to secure the observance, performance and discharge by
Borrower of all terms, covenants, conditions and agreements set forth in the
Note, this Mortgage and in the other Loan Documents (hereafter defined); in
order to charge the properties, interests and rights hereinafter described with
such payment, observance, performance and discharge; and in consideration of the
sum of one dollar paid by Lender to Borrower, and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged by
Borrower, Borrower does hereby grant, bargain, sell, convey, assign, transfer,
pledge, deliver, hypothecate, warrant and confirm unto Trustee, in trust, with
POWER OF SALE for the benefit of Lender forever, all of Borrower's right, title
and interest in and to the following described properties, including all rights,
interests, replacements, substitutions and additions thereto, therein or
therefore (collectively, the "MORTGAGED PROPERTY"):
(i) All that certain piece, parcel or tract of land or real
property of which Borrower is now seized and in actual or constructive
possession, situated in the City of Omaha, County of Xxxxxxx, and State of
Nebraska (the "STATE"), and being more particularly described on EXHIBIT A
attached hereto and by this reference made a part hereof (the "REAL PROPERTY");
(ii) All buildings, structures and other improvements of any kind,
nature or description now or hereafter erected, constructed, placed or located
upon the Real Property
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(the "IMPROVEMENTS"), including, without limitation, any and all additions to,
substitutions for or replacements of such Improvements;
(iii) All minerals, royalties, gas rights, water, water rights,
water stock, flowers, shrubs, lawn plants, crops, trees, timber and other
emblements now or hereafter located on, under or above all or any part of the
Real Property;
(iv) All and singular, the tenements, hereditaments, strips and
gores, rights-of-way, easements, privileges, profits and other appurtenances now
or hereafter belonging or in any way appertaining to the Real Property,
including, without limitation, all right, title and interest of the Borrower in
any after-acquired right, title, interest, remainder or reversion in and to the
beds of any ways, streets, avenues, roads, alleys, passages and public places,
open or proposed, in front of, running through, adjoining or adjacent to the
Real Property (the "APPURTENANCES");
(v) Any and all leases, licenses, contracts, rents, license fees,
royalties, issues, revenues, profits, proceeds, deposits, income and other
benefits, including accounts receivable, termination fees, of, accruing to or
derived from the Real Property, Improvements and Appurtenances, and any business
or enterprise presently situated or hereafter operated thereon and therewith and
all of Borrower's right, title and interest under any and all lease guaranties,
letters of credit, and any other credit support furnished to Borrower in
connection with any of the foregoing (the "RENTS");
(vi) Any and all awards, payments or settlements, including
interest thereon, and the right to receive the same, as a result of: (a) the
exercise of the right of eminent domain; (b) the alteration of the grade of any
way, street, avenue, road, alley, passage or public place; (c) any other injury,
damage, casualty or claim relating to the taking of, or decrease in the value
of, the Real Property, Improvements or Appurtenances; or (d) proceeds of
insurance awards, to the extent of all amounts which may be secured by this
Mortgage at the date of any such award or payment including but not limited to
Reasonable Attorneys' Fees (as hereinafter defined), costs and disbursements
incurred by Lender in connection with the collection of such award or payment;
(vii) All fixtures, materials, equipment, machinery, apparatus,
appliances, and other property whatsoever now or hereafter attached to,
installed in, or used in connection with the buildings and other improvements
now erected or hereafter to be erected on said land, including, but not limited
to, furnaces, steam boilers, hot-water boilers, oil burners, pipes, radiators,
air-conditioning and sprinkler systems, gas and electric fixtures, carpets,
rugs, shades, awnings, screens, elevators, motors, dynamos, cabinets and all
other furnishings, tools, equipment and machinery, appliances, building
supplies, materials, and all fixtures, accessions and appurtenances thereto, and
all renewals or replacements of or substitutions for any of the foregoing, all
of which property and things are hereby declared to be permanent
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fixtures and accessions to the freehold and part of the realty conveyed herein
as security for the indebtedness herein mentioned; and
(viii) All agreements or contracts relating to any interest rate cap
agreements, swaps or other interest hedging agreements;
TO HAVE AND TO HOLD the foregoing Mortgaged Property and the rights
hereby granted for its use and benefit unto Lender, Trustee and its successors
and assigns in fee simple forever, successors in interest of Trustee, in trust,
in fee simple forever. In order to secure the repayment of the Loan evidenced
and represented by the Note, together with interest on the Loan, as well as the
payment of all other sums of money secured hereby including, without limitation,
the obligations of Borrower under the Borrower Cross-Default Guaranty, as
hereinafter provided; and to secure the observance, performance and discharge by
Borrower of all covenants, conditions and agreements set forth in the Note, this
Mortgage, the Borrower Cross-Default Guaranty and in the other Loan Documents;
and in order to charge the properties, interests and rights hereinafter
described with such payment, observance, performance and discharge; and in
consideration of the sum of Ten Dollars ($10.00) paid by Lender and other good
and valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, Borrower hereby grants to Trustee with POWER OF SALE, for the
benefit of Lender, as beneficiary, all of Borrower's right, title and interest
in and to a security interest in all Fixtures, Goods (including, without
limitation, Consumer Goods, Inventory, Equipment and Farm Products), Accounts,
Chattel Paper (including, without limitation, Electronic Chattel Paper and
Tangible Chattel Paper), Instruments, General Intangibles (including, without
limitation, Payment Intangibles and Software), Letters of Credit,
Letter-of-Credit Rights, Documents, As-Extracted Collateral, Money and Deposit
Accounts of every kind, and all proceeds thereof, including, without limitation,
any and all licenses, permits, franchises, trademarks, trade names, service
marks or logos, plans, specifications, maps, construction contracts,
instruments, insurance policies, fittings and fixtures of every kind, which is,
are or shall hereafter be located upon, attached, affixed to or used or useful,
either directly or indirectly, in connection with the complete and comfortable
use, occupancy and operation of the Real Property, Improvements or Appurtenances
as a retail project (the "EXISTING USE"), or any other business, enterprise or
operation as may hereafter be conducted upon or with said Real Property,
Improvements or Appurtenances, including, without limitation, any and all
licenses, permits or franchises, used or required in connection with such use,
occupancy or operation as well as the proceeds thereof or therefrom regardless
of form, all security deposits and advance rentals under lease agreements now or
at any time hereafter covering or affecting any of the Property and held by or
for the benefit of Borrower, all monetary deposits which Borrower has been
required to give to any public or private utility with respect to utility
services furnished to the Real Property or Improvements, all rents, issues and
profits from leases of all or any part of the Real Property or Improvements, all
proceeds (including premium refunds) of each policy of insurance relating to the
Real Property or Improvements, all proceeds from the taking of the Real Property
or Improvements or any part
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thereof or any interest therein or right or estate appurtenant thereto by
eminent domain or by purchase in lieu thereof, all amounts deposited in escrow
for the payment of ad valorem taxes, assessments, charges, ground rentals and/or
premiums for policies of insurance with respect to the Real Property or
Improvements, all proceeds and other amounts paid or owing to Borrower under or
pursuant to any and all contracts and bonds relating to the construction,
erection or renovation of the Real Property or Improvements, all oil, gas and
other hydrocarbons and other minerals produced from or allocated to the Real
Property and all products processed or obtained therefrom, the proceeds thereof,
and all accounts and general intangibles under which such proceeds may arise,
together with any sums of money that may now or at any time hereafter become due
and payable to Borrower by virtue of any and all royalties, overriding
royalties, bonuses, delay rentals and any other amount of any kind or character
arising under any and all present and future oil, gas and mining leases covering
the Real Property or any part thereof (collectively, the "FIXTURES AND PERSONAL
PROPERTY," which term expressly excludes any toxic waste or substance deemed
hazardous under federal, regional, state or local laws, codes, ordinances,
statutes, rules, regulations, decisions or orders). The Mortgaged Property and
the Fixtures and Personal Property are herein together referred to as the
"PROPERTY".
Except as otherwise expressly provided in this Mortgage, all terms in
this Mortgage relating to the Property and the grant of the foregoing security
interest which are defined in the Uniform Commercial Code of the State (the
"UCC") shall have the meanings assigned to them in Article 9 (or, absent
definition in Article 9, in any other Article) of the UCC, as those meanings may
be amended, revised or replaced from time to time. Notwithstanding the
foregoing, the parties intend that the terms used herein which are defined in
the UCC have, at all times, the broadest and most inclusive meanings possible.
Accordingly, if the UCC shall in the future be amended or held by a court to
define any term used herein more broadly or inclusively than the UCC in effect
on the date of this Mortgage, then such term, as used herein, shall be given
such broadened meaning. If the UCC shall in the future be amended or held by a
court to define any term used herein more narrowly, or less inclusively, than
the UCC in effect on the date of this Mortgage, such amendment or holding shall
be disregarded in defining terms used in this Mortgage.
Borrower hereby covenants and warrants with and to Lender that Borrower
is indefeasibly seized of the Property and has good right, full power, and
lawful authority to convey and encumber all of the same as aforesaid; that
Borrower hereby fully warrants the title to the Property and will defend the
same and the validity and priority of the lien and encumbrance of this Mortgage
against the lawful claims of all persons whomsoever; and Borrower further
warrants that the Property is free and clear of all liens and encumbrances of
any kind, nature or description, save and except only (with respect to said Real
Property, Improvements and Appurtenances) for real property taxes for years
subsequent to 2003 (which are not yet due and payable) and those exceptions
accepted by Lender as set forth in the title insurance commitment or proforma
policy issued to Lender precedent to the issuance of a
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Lender's Policy of Title Insurance insuring the first lien priority of this
Mortgage (the "PERMITTED EXCEPTIONS").
If Borrower shall pay to Lender the Loan evidenced by the Note, and if
Borrower shall duly, promptly and fully perform, discharge, execute, effect,
complete and comply with and abide by each and every one of the terms,
covenants, conditions and agreements of the Note, this Mortgage, the Borrower
Cross-Default Guaranty and all other Loan Documents, then this Mortgage and the
estates and interests hereby granted and created shall cease, terminate and be
null and void, and shall be discharged of record at the expense of Borrower.
Borrower, for the benefit of Lender and its successors and assigns,
does hereby expressly covenant and agree as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall pay the
principal of the Loan evidenced by the Note, together with all interest thereon,
in accordance with the terms, covenants and conditions of the Note, and perform
all obligations of Borrower under the Borrower Cross-Default Guaranty promptly
at the times, at the place and in the manner that said principal and interest
shall become due, and shall promptly and punctually pay all other sums required
to be paid by Borrower pursuant to the terms, covenants and conditions of the
Note, this Mortgage, the Borrower Cross-Default Guaranty, the Assignment of
Leases, Rents and Profits of even date herewith (the "ASSIGNMENT") and all other
documents and instruments executed as further evidence of, as additional
security for or executed in connection with the Loan evidenced by the Note
(collectively, the "LOAN DOCUMENTS").
2. PERFORMANCE OF OTHER OBLIGATIONS. Borrower shall perform,
comply with and abide by each and every one of the terms, covenants, conditions
and agreements contained and set forth in the Note, this Mortgage, and the other
Loan Documents, shall comply with all Laws, (hereafter defined) and shall
perform all of its obligations under any term, covenant, condition, restriction
or agreement of record affecting the Property, and to insure that at all times
the Property constitutes one or more legal lots capable of being conveyed
without violation of any subdivision or platting laws, codes, ordinances,
statutes, rules, regulations, or other laws relating to the division, separation
or subdivision of real property.
3. PRESERVATION AND MAINTENANCE OF PROPERTY; ACCESSIBILITY;
HAZARDOUS WASTE.
(a) Borrower shall keep all Improvements now existing or
hereafter erected on the Real Property in good order and repair, only to be used
for the Existing Use, and not to do or permit any waste, impairment or
deterioration thereof or thereon, nor to alter, remove or demolish any of the
Improvements or any Fixtures and Personal Property attached or appertaining
thereto, without the prior written consent of Lender, nor to initiate, join in
or
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consent to any change in any private restrictive covenant, zoning ordinance
or other public or private restrictions limiting or defining the uses which may
be made of the Property or any part thereof, nor to do or permit any other act
whereby the Property shall become less valuable, be used for purposes contrary
to applicable Law or be used in any manner which will increase the premium for
or result in a termination or cancellation of the insurance policies hereinafter
required to be kept and maintained on the Property. In furtherance of, and not
by way of limitation upon, the foregoing covenant, Borrower shall effect such
repairs as Lender may reasonably require, and from time to time make all needful
and proper replacements so that the Improvements, Appurtenances, Fixtures and
Personal Property will, at all times, be in good condition, fit and proper for
the respective purposes for which they were originally erected or installed. In
connection with the making of such repairs, Borrower shall use contractors who
are properly licensed, who carry workers' compensation insurance and appropriate
liability insurance, who generally have a good reputation for completing their
work in a neat, prompt and workmanlike manner, and use only new or
re-manufactured goods of a quality as good or better than that originally used
on the Property. As provided herein, Borrower shall insure that no liens are
filed against the Property that relate in any way to the repair work provided
for herein. For so long as that certain Lease of the Property (the "BORDERS
LEASE") dated November 14, 2002 between Borrower, as landlord, and Border's,
Inc., a Colorado corporation ("BORDERS") as tenant remains in effect with
Borders as the tenant thereunder and Borrower is diligently enforcing the
obligations of Borders thereunder, Borrower shall be deemed to be in compliance
with the requirements of this subparagraph.
Borrower at all times shall keep the Property and ground water of the
Property free of Hazardous Materials (as hereinafter defined) to the extent
required by applicable governmental agencies and free of any liens arising in
connection therewith. Borrower shall not and shall not knowingly permit its
tenants or any third party requiring the consent of Borrower to enter the
Property, to use, generate, manufacture, treat, store, release, threaten
release, transport on or over, emit or dispose of Hazardous Materials in, on,
over, under or about the Property including the ground water of the Property in
violation of any federal, regional, state or local law, code, ordinance,
statute, rule, regulation, decision or order currently in existence or hereafter
enacted or rendered (collectively, "HAZARDOUS WASTE LAWS"). Borrower shall give
Lender prompt Written Notice (as hereinafter defined) of any claim by any
person, entity, or governmental agency that a significant release or disposal of
Hazardous Materials has occurred in, on, over, under or about the Property,
including the ground water of the Property, in excess of those permitted by the
Hazardous Waste Laws, whether caused by the Borrower, any tenant or any third
party. Borrower, through its professional engineers and at Borrower's sole cost,
shall promptly and thoroughly investigate any suspected release of Hazardous
Materials in, on, over, under or about the Property, including the ground water
of the Property. Borrower shall forthwith remove, repair, remediate, clean up,
and/or detoxify any Hazardous Materials found in, on, over, under or about the
Property or in the ground water of the Property to the extent such actions are
required by any applicable Hazardous Waste Laws, and whether or not Borrower was
responsible for the existence of the Hazardous Materials in, on,
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over, under or about the Property or the ground water of the Property.
"HAZARDOUS MATERIALS" shall include, but not be limited to, substances defined
as "hazardous substances," "hazardous materials," or "toxic substances" under
any Hazardous Waste Laws.
(b) In addition, Borrower shall not incorporate any
underground storage tanks into the Real Property without the prior written
consent of Lender, and shall insure that all tanks currently on the Real
Property comply with current Hazardous Waste Laws and underground storage tank
regulations and are properly registered.
Borrower hereby agrees to indemnify and defend Lender and hold Lender
harmless from and against any and all losses, liabilities, damages, injuries,
costs, expenses, fines, fees, suits, actions, debts, obligations, and claims of
any and every kind whatsoever, including Reasonable Attorneys' Fees
(collectively, "LOSSES") paid, incurred or suffered by, or asserted against,
Lender for, with respect to, or as a direct or indirect result of, the presence
in, on, over, under or about, or the escape, seepage, leakage, spillage,
discharge, emission or release from, the Property of any Hazardous Materials
(including, without limitation, any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any Hazardous Waste Laws),
regardless of the source of origination and whether or not caused by, or within
the control of, Borrower and including any claims of lender's negligence or
strict liability, but excluding Lender's willful misconduct or gross negligence.
Liability under this Section 3(b) and similar provisions in this
Mortgage and the other Loan Documents concerning Hazardous Materials shall
survive repayment of the Note and satisfaction of this Mortgage; provided,
however, Borrower shall have no liability under this Section 3(b) regarding
Hazardous Materials if either (i) the Property becomes contaminated subsequent
to Lender's acquisition of the Property by foreclosure, acceptance by Lender of
a deed in lieu thereof, or subsequent to any transfer of ownership of the
Property which was approved or authorized by Lender in writing, pursuant to this
Mortgage, provided that such transferee assumes in writing all of the
obligations of Borrower with respect to Hazardous Materials pursuant to the Loan
Documents, or (ii) at such time Borrower provides Lender with an environmental
assessment report acceptable to Lender, in Lender's sole discretion, showing the
Property to be free of Hazardous Materials and not in violation of any Hazardous
Waste Laws. The burden of proof under this Section 3(b) with regard to
establishing the date upon which any Hazardous Materials was released in, on,
over, under or about the Property shall be upon Borrower.
(c) Borrower at all times shall maintain the Property in
full compliance with all federal, state, county, regional or local laws, codes,
ordinances, rules, regulations, decisions and orders currently in existence or
hereafter enacted or rendered, governing accessibility for the disabled,
including but not limited to: The Architectural Barriers Act of 1968; The
Rehabilitation Act of 1973; The Fair Housing Act of 1988 and the Americans with
Disabilities Act (collectively, the "ACCESSIBILITY LAWS").
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Borrower hereby agrees to indemnify and defend Lender and hold Lender
harmless from and against any and all Losses paid, incurred or suffered by, or
asserted against Lender for, with respect to, or as a direct or indirect result
of, the non-compliance of the Property with the Accessibility Laws whether or
not caused by, or within the control of, Borrower, and including any claims of
lender's negligence or strict liability, but excluding Lender's willful
misconduct or gross negligence.
Liability under this Section 3(c) and similar provisions in this
Mortgage and the other Loan Documents concerning Accessibility Laws shall
survive repayment of the Note and satisfaction of this Mortgage; provided,
however, Borrower shall not be liable under this Section 3(c) for compliance
with any Accessibility Laws if such Accessibility Laws first become effective,
or such violations result from alterations or improvements to the Property that
are performed subsequent to Lender's acquisition of the Property by foreclosure
or acceptance of a deed in lieu thereof or subsequent to any transfer which was
approved or authorized by Lender pursuant to this Mortgage, provided that such
transferee assumes in writing all obligations pertaining to the Accessibility
Laws pursuant to this Mortgage and the other Loan Documents. The burden of proof
under this Section 3(c) with regard to establishing the date upon which such
non-compliance with any Accessibility Laws occurred at the Property shall be
upon Borrower.
(d) Lender, and/or its agents, shall have the right and
shall be permitted, subject to the rights of Borders under the Borders Lease,
but shall not be required, at all reasonable times, to enter upon and inspect
the Property to insure compliance with the foregoing covenants, and any and all
other terms, covenants, conditions and agreements set forth in this Mortgage.
4. PAYMENT OF TAXES, ASSESSMENTS AND OTHER CHARGES. Borrower
shall pay, or cause to be paid, all taxes, assessments and other charges as
already levied or assessed, or that may be hereafter levied or assessed, upon or
against the Property, when the same shall become due and payable according to
Law, before delinquency, and before any interest or penalty shall attach
thereto, and to deliver official receipts evidencing the payment of the same to
Lender not later than thirty (30) days following the payment of the same.
Borrower shall have the right to contest, in good faith and in accordance with
applicable Laws and procedures, the proposed assessment of ad valorem taxes or
special assessments by governmental authorities having jurisdiction over the
Property; provided, however, Borrower shall give Written Notice of its intent to
bring such an action to Lender, and Lender may, in its sole discretion, require
Borrower to post a bond or other collateral satisfactory to Lender (and
acceptable to the title company insuring this Mortgage) as a result of
Borrower's act.
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5. PAYMENT OF LIENS, CHARGES AND ENCUMBRANCES. Borrower shall
immediately pay and discharge from time to time when the same shall become due,
all lawful claims and demands of mechanics, materialmen, laborers, realtors,
brokers and others which, if unpaid, might result in, or permit the creation of,
a lien, charge or encumbrance upon the Property or any part thereof, or on the
Rents, arising therefrom and, in general, to do or cause to be done everything
necessary so that the lien of this Mortgage shall be fully preserved, at the
sole cost of Borrower, without expense to Lender. Borrower shall have the right
to contest, in good faith and in accordance with applicable Laws and procedures,
mechanics', materialmens' and other such liens filed against the Property;
provided however, that Borrower shall give Written Notice to Lender of its
intent to bring such action, and Lender may, in Lender's sole discretion,
require Borrower to post a bond or other collateral satisfactory to Lender (and
acceptable to the title company insuring this Mortgage) as a result of
Borrower's act.
6. PAYMENT OF JUNIOR ENCUMBRANCES. Borrower shall permit no
default or delinquency under any other lien, imposition, charge or encumbrance
against the Property, even though junior and inferior to the lien of this
Mortgage; provided however, the foregoing shall not be construed to permit any
such additional lien or encumbrance against the Property, other than the
Permitted Exceptions.
7. PAYMENT OF MORTGAGE TAXES. Borrower shall pay any and all
taxes which may be levied or assessed directly or indirectly upon the Note
and/or this Mortgage (except for income taxes payable by Lender) or the Loan,
without regard to any Law which may be hereafter enacted imposing payment of the
whole or any part thereof upon Lender, its successors or assigns. Upon violation
of this covenant, or upon the rendering by any court of competent jurisdiction
of a decision that such a covenant by Borrower is legally inoperative, or if any
court of competent jurisdiction shall render a decision that the rate of said
tax when added to the rate of interest provided for in the Note exceeds the then
maximum rate of interest allowed by Law, then, and in any such event, the debt
hereby secured shall, at the option of Lender, its successors or assigns, become
immediately due and payable, anything contained in this Mortgage or in the Note
notwithstanding, without the imposition of a Prepayment Premium (as defined in
the Note). The additional amounts which may become due and payable hereunder
shall become a part of the Loan secured by this Mortgage.
8. HAZARD INSURANCE. Borrower shall continuously, during the term
of this Mortgage, keep the Improvements, Appurtenances, and Fixtures and
Personal Property, now or hereafter existing, erected, installed and located in
or upon the Real Property, insured with extended coverage insurance against loss
or damage resulting from fire, windstorm, flood, sinkhole, earthquake, mine
subsidence, acts of terrorism, and such other hazards, casualties, contingencies
and perils including, without limitation, other risks insured against by persons
operating like properties in the locality of the Property, or otherwise deemed
necessary or advisable by Lender or any Rating Agency (as hereinafter defined),
on such forms and with
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such deductibles as may be required by Lender or any Rating Agency, covering the
Property in the amount of the full replacement cost thereof, (without taking
into account any depreciation) less excavating and foundation costs, and
covering all loss or abatement of rental or other income, without a provision
for co-insurance, in an amount equal to the scheduled rental income of the
Property for at least twelve (12) months, or if applicable, business
interruption insurance in an amount sufficient to pay debt service on the Note,
operating expenses, taxes and insurance on the Property for a period of twelve
(12) months, and covering loss by flood (if the Property lies in a Special Flood
Hazard Area as designated on the Department of Housing and Urban Development's
Maps, or other flood prone designation) in an amount equal to the outstanding
principal balance of the Loan or such other amount as approved by Lender, and
earthquake insurance with a deductible amount of no more than ten percent (10%)
of the policy amount if, in the judgment of Lender's inspecting architect, the
Property lies in an area of anticipated significant seismic activity, and
"Ordinance or Law Coverage" or "Enforcement" endorsements in amounts
satisfactory to Lender if any of the Improvements or the use of the Property
shall at any time constitute legal non-conforming structures or uses or the
ability to rebuild the Improvements is restricted or prohibited, and
comprehensive boiler and machinery insurance (without exclusion for explosion),
if applicable, in amounts as shall be reasonably required by Lender or any
Rating Agency and covering all boilers or other pressure vessels, machinery and
equipment located at or about the Property (including, without limitation,
electrical equipment, sprinkler systems, heating and air conditioning equipment,
refrigeration equipment and piping). All such insurance shall be carried with a
company or companies licensed to do business in the State, which is acceptable
to Lender, which company or companies shall have a rating at the time this
Mortgage is executed equivalent to at least A:X as shown in the most recent
Best's Key Rating Guide. The original policy or policies and renewals thereof
(or, at the sole option of Lender, duplicate originals or certified copies
thereof), together with receipts evidencing payment of the premium therefor,
shall be deposited with, held by and are hereby assigned to, Lender as
additional security for the Loan. Each such policy of insurance shall contain a
noncontributing loss payable clause in favor of and in a form acceptable to
Lender, and shall provide for not less than thirty (30) days prior Written
Notice to Lender of any intent to modify, non-renew, cancel or terminate the
policy or policies, or the expiration of such policies of insurance, or the
exclusion of any individual risk such as acts of terrorism. If the insurance
required under this Section 8 or any portion thereof is maintained pursuant to a
blanket policy, Borrower shall furnish to Lender a certified copy of such
policy, together with an original Evidence of Insurance Certificate (Xxxxx Form
27) for hazard insurance indicating that Lender is an additional insured under
such policy in regard to the Property and showing the amount of coverage
apportioned to the Property, which coverage shall be in an amount sufficient to
satisfy the requirements hereof. Not less than fifteen (15) days prior to the
expiration dates of each policy required of Borrower hereunder, Borrower will
deliver to Lender a renewal policy or policies marked "premium paid" or
accompanied by other evidence of payment and renewal satisfactory to Lender. In
the event of foreclosure of this Mortgage or other transfer of title to the
Property in extinguishment of the Loan, all right, title and interest of
Borrower, in and to any insurance policies then in force including any
Xxxxx, Xxxxxxxx
00
rights to unearned premiums, and in and to insurance proceeds then payable,
shall pass to the purchaser or grantee.
For so long as the Borders Lease remains in effect with Borders as the
tenant thereunder, then to the extent that Borders self-insures to satisfy its
insurance obligations under the Borders Lease, Lender shall accept such
self-insurance as satisfying the obligation of Borrower to provide insurance
under this Section 8, provided that (i) Borders, or the guarantor of the Borders
Lease, Boarders Group, Inc., maintains a minimum net worth of not less than Two
Hundred Fifty Million Dollars ($250,000,000.00), (ii) such self-insurance
otherwise satisfies the requirements of this Section 8 as to the amount required
to be maintained by Borders, and (iii) Borrower provides to Lender written
verification of such coverage in form and substance reasonably acceptable to
Lender. Notwithstanding the foregoing, Lender shall have the right require
Borrower to maintain in effect a separate policy of liability insurance with
respect to the Property meeting the requirements of Section 9 of this Mortgage.
In the event of loss covered by insurance maintained by Borrower with
respect to the Property, including, without limitation, insurance covering
hazards, casualties, contingencies and perils for which insurance has been
required by Lender hereunder, Borrower shall give immediate notice thereof to
Lender. Lender is hereby irrevocably appointed attorney-in-fact coupled with an
interest for Lender to, at its option, make proof of loss and/or to file a claim
thereunder. Each insurance company concerned is hereby notified, authorized and
directed to make payment for such loss directly to Lender, instead of to
Borrower and Lender jointly, and Borrower hereby authorizes Lender to adjust and
compromise any losses for which insurance proceeds are payable under any of the
aforesaid insurance policies and, after deducting the costs of collection, to
apply the proceeds of such insurance, at its option either: (a) to the
restoration or repair of the insured Improvements, Appurtenances, and Fixtures
and Personal Property, provided that, in the opinion and sole discretion of
Lender, such restoration or repair is reasonably practical and, provided
further, that, in the opinion and sole discretion of Lender, either: (i) the
insurance proceeds so collected are sufficient to cover the cost of such
restoration or repair of the damage or destruction with respect to which such
proceeds were paid, or (ii) the insurance proceeds so collected are not
sufficient alone to cover the cost of such restoration or repair, but are
sufficient therefor when taken together with funds provided and made available
by Borrower from other sources; in which event Lender shall make such insurance
proceeds available to Borrower for the purpose of effecting such restoration or
repair; but Lender shall not be obligated to see to the proper application of
such insurance proceeds nor shall the amount of funds so released or used be
deemed to be payment of or on account of the Loan; or (b) to the reduction of
the Loan, notwithstanding the fact that the amount owing thereon may not then be
due and payable or that said Loan is otherwise adequately secured, in which
event such proceeds shall be applied at par against the Loan and the monthly
payment due on account of such Loan shall be reduced accordingly as calculated
by Lender. None of such actions taken by Lender shall be deemed to be or result
in a waiver or impairment of any equity, lien or right of Lender under and by
virtue of this Mortgage, nor
Omaha, Nebraska
12
will the application of such insurance proceeds to the reduction of the Loan
serve to cure any default in the payment thereof. In the event of foreclosure of
this Mortgage or other transfer of title to the Property in extinguishment of
the Loan, all right, title and interest of Borrower in and to any insurance
policies then in force including any rights to unearned premiums and in and to
insurance proceeds then payable, shall pass to the purchaser or grantee.
In case of Borrower's failure to keep the Property properly insured as
required herein, Lender, its successors or assigns, may, at its option (but
shall not be required to) acquire such insurance as required herein at
Borrower's sole expense.
Notwithstanding anything set forth in this Section 8 to the contrary,
in the event of loss or damage to the Property by fire or other casualty covered
by insurance maintained by Borrower with respect to the Property, including,
without limitation, insurance which has been required by Lender hereunder and
provided by Borrower, and the amount of such loss or damage does not exceed
twenty-five percent (25%) of the unpaid principal balance of the Note, Lender
hereby agrees to allow the proceeds of insurance to be used for the restoration
of the Property and to release such insurance proceeds to Borrower as such
restoration progresses, provided:
(a) Borrower is not in default under any of the terms,
covenants and conditions of this Mortgage, the Note or any of the other Loan
Documents;
(b) The Improvements, after such restoration, shall be at
least eighty percent (80%) leased pursuant to leases approved in writing by
Lender;
(c) The plans and specifications for the restoration of
the Property are approved in writing by Lender in advance;
(d) At all times during such restoration, Borrower has
deposited with Lender funds which, when added to the insurance proceeds received
by Lender, are sufficient to complete the restoration of the Property in
accordance with the approved plans and specifications, and all applicable
building codes, zoning ordinances, regulations and Accessibility Laws, and
further, that the funds retained by Lender are sufficient to complete the
restoration of the Property as certified to Lender by Lender's inspecting
architect/engineer;
(e) Borrower provides suitable completion, payment and
performance bonds, builders' all risk insurance, and all necessary licenses and
permits for such restoration in form and amount acceptable to Lender;
(f) The insurer under such policies of fire or other
casualty insurance does not assert any defense to payment under such policies
against Lender, Borrower, any tenant, or third party of Borrower with regard to
the Property;
Xxxxx, Xxxxxxxx
00
(g) Lender shall have the option, upon the completion of
such restoration of the Property, to apply any surplus insurance proceeds
remaining after the completion of such restoration, at par, to the reduction of
the outstanding principal balance of the Note; notwithstanding the fact that the
amount owing thereon may not then be due and payable or that said Loan is
otherwise adequately secured;
(h) The funds held by Lender shall be disbursed no more
often than once per month and in not more than five (5) increments of not less
than Fifty Thousand Dollars ($50,000) each, except the final disbursement of
such funds which may be in an amount less than Fifty Thousand Dollars ($50,000);
(i) Lender's obligation to make any such disbursement
shall be conditioned upon Lender's receipt of written certification from
Lender's inspecting architect/engineer (whose fees shall be reimbursed to Lender
by Borrower) that all construction and work for which such disbursement is
requested has been completed in accordance with the approved plans and
specifications and in accordance with all applicable building codes, zoning
ordinances and all other Laws and, further, that Borrower has deposited with
Lender sufficient funds to complete such restoration in accordance with Section
8(d);
(j) In the reasonable judgment of the Lender, the
Property can be restored within six months after insurance proceeds are made
available and at least six months prior to the Maturity Date (as defined in the
Note) to an economic unit not less valuable (including an assessment by Lender
of the impact of the termination of any Occupancy Leases due to such casualty)
and not less useful than the same was prior to the casualty, and after such
restoration will adequately secure the outstanding balance of the Loan; and
(k) Lender shall be entitled to require and to impose
such other conditions to the release of such funds as would be customarily or
reasonably be required and imposed by institutional mortgage lenders for a
project of similar nature and cost.
In the event of a casualty, provided that Borrower is not then in
default hereunder beyond the expiration of applicable notice and cure periods,
then notwithstanding any provision of this Section 8 to the contrary, Lender
shall make insurance proceeds available for restoration of the Property to the
extent required under the terms of the Borders Lease.
9. LIABILITY INSURANCE. Borrower shall carry and maintain such
commercial general liability insurance as may from time to time be required by
Lender or any Rating Agency, taking into consideration the type of property
being insured and the corresponding liability exposure, on forms, with
deductibles, in amounts and with such company or companies licensed to do
business in the State and as may be acceptable to Lender. All such commercial
general liability insurance shall be carried with a company or companies which
have and maintain a rating equivalent to at least A:X as shown in the most
recent Best's
Omaha, Nebraska
14
Key Rating Guide. The original policy or policies and all renewals thereof (or,
at the sole option of Lender, duplicate originals or certified copies thereof),
together with a Certificate of Insurance (Xxxxx Form 25S) and receipts
evidencing payment of the premium therefor, shall be deposited with, held by and
are hereby assigned to, Lender as additional security for the Loan. Such policy
or policies of insurance shall name Lender as an additional insured and shall
provide for not less than thirty (30) days prior Written Notice to Lender of any
intent to modify, cancel, non-renew, or terminate the policy or policies or the
expiration of such policy or policies of insurance, or the exclusion of any
individual risk such as acts of terrorism. Not less than fifteen (15) days prior
to the expiration dates of each policy or policies required of Borrower
hereunder, Borrower will deliver to Lender a renewal policy or policies marked
"premium paid" or accompanied by other evidence of payment and renewal
satisfactory to Lender. In the event of foreclosure of this Mortgage or other
transfer of title to the Property in extinguishment of the Loan, all right,
title and interest of Borrower, in and to any insurance policies then in force
including any rights to unearned premiums, and in and to insurance proceeds then
payable, shall pass to the purchaser or grantee. In case of Borrower's failure
to keep the Property properly insured as required herein, Lender, its successors
or assigns, may, at its option (but shall not be required to) acquire such
insurance as required herein at Borrower's sole expense.
10. COMPLIANCE WITH LAWS.
(a) Borrower shall observe, abide by and comply with all
federal, regional, state and local laws, codes, ordinances, statutes, rules,
regulations, decisions, orders, requirements or decrees relating to the Property
enacted, promulgated or issued by any federal, state, county or local
governmental or quasi-governmental authority or any agency or subdivision
thereof having jurisdiction over Borrower or the Property, which now or
hereafter affect Borrower or the Property, including Hazardous Waste Laws and
Accessibility Laws (collectively, the "LAWS"), and to observe and comply with
all conditions and requirements necessary to preserve and extend any and all
rights, licenses, permits (including, but not limited to, zoning, variances,
special exceptions and nonconforming uses), privileges, franchises and
concessions which are applicable to the Property, or which have been granted to
or contracted for by Borrower in connection with any existing, presently
contemplated or future uses of the Property.
(b) Borrower shall not engage in any transaction which
would cause any obligation, or action taken or to be taken, hereunder (or the
exercise by Lender of any of its rights under the Note, this Mortgage and the
other Loan Documents) to be a non-exempt (under a statutory or administrative
class exemption) prohibited transaction under the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). Borrower shall deliver to Lender
such certifications or other evidence from time to time throughout the term of
this Mortgage, as requested by Lender in its sole discretion, that (i) Borrower
is not an "employee benefit plan" as defined in Section 3(3) of ERISA, which is
subject to Title I of
Omaha, Nebraska
15
ERISA, or a "governmental plan" within the meaning of Section 3(32) of ERISA;
(ii) Borrower is not subject to state statutes regulating investments and
fiduciary obligations with respect to governmental plans; and (iii) one or more
of the following circumstances is true:
(1) Equity interests in Borrower are publicly
offered securities, within the meaning of 29 C.F.R. Section
2510.3-101(b)(2);
(2) Less than twenty-five percent (25%) of each
outstanding class of equity interests in Borrower are held by "benefit
plan investors" within the meaning of 29 C.F.R. Section
2510.3-101(f)(2); or
(3) Borrower qualifies as an "operating company"
or a "real estate operating company" within the meaning of 29 C.F.R.
Section 2510.3-101(c) or (e) or an investment company registered under
The Investment Company Act of 1940.
11. MAINTENANCE OF PERMITS. Borrower shall obtain, keep and
constantly maintain in full force and effect during the entire term of this
Mortgage, all certificates, licenses and permits necessary to keep the Property
operating for the Existing Use and, except as specifically provided for in this
Mortgage, not to assign, transfer or in any manner change such certificates,
licenses or permits without first receiving the written consent of Lender.
12. OBLIGATIONS OF BORROWER AS LESSOR.
(a) Borrower shall perform every obligation of Borrower
(as the landlord) and enforce every obligation of the tenant in any and every
lease, license or other occupancy agreement of or affecting the Property or any
part thereof (the "OCCUPANCY LEASES"), and not to modify, alter, waive or cancel
any such Occupancy Leases or any part thereof or rights thereunder, without the
prior written consent of Lender (but such consent shall not be required for such
action as to Occupancy Leases of three thousand (3,000) square feet or less if
such action is in the ordinary course of business of owning and operating the
Property in a prudent and business-like manner, on then current market terms),
nor collect for more than thirty (30) days in advance of the date due any Rents
that may be collectible under any such Occupancy Leases and, except as provided
for in this Mortgage, not to assign any such Occupancy Lease(s) or any such
Rents relating thereto, to any party other than Lender, without the prior
written consent of Lender. Borrower will notify Lender in writing of any default
under any Occupancy Lease. In the event of default under any such Occupancy
Lease by reason of failure of Borrower to keep or perform one or more of the
covenants, agreements or conditions thereof, Lender is hereby authorized and
empowered, and may, at its sole option, remedy, remove or cure any such default,
and further, Lender may, at its sole option and in its sole discretion but
without obligation to do so, pay any sum of money deemed necessary by Lender for
the performance of said covenants, agreements and conditions, or for the curing
or removal
Omaha, Nebraska
16
of any such default, and incur all expenses and obligations which Lender may
consider necessary or reasonable in connection therewith, and Borrower shall
repay on demand all such sums so paid or advanced by Lender together with
interest thereon until paid at the lesser of either: (i) the highest rate of
interest then allowed by the Laws of the State, or, if controlling, the Laws of
the United States, or (ii) the then applicable interest rate of the Note plus
five hundred (500) basis points per annum; all of such sums, if unpaid, shall be
added to and become part of the Loan.
(b) All such Occupancy Leases hereafter made shall be
subject to the approval of Lender and: (i) shall be at competitive market rental
rates then prevailing in the geographic area for projects used for the Existing
Use comparable to the Property; (ii) shall have lease terms of not less than
three years; and (iii) at Lender's option, shall be superior or subordinate in
all respects to the lien of this Mortgage. Provided, however, that Lender shall
not require approval in advance of any Occupancy Leases which conform to the
Borrower's Form Lease (as hereinafter defined) as previously approved by Lender,
except as set forth below. Neither the right nor the exercise of the right
herein granted unto Lender to keep or perform any such covenants, agreements or
conditions as aforesaid shall preclude Lender from exercising its option to
cause the whole Loan to become immediately due and payable by reason of
Borrower's default in keeping or performing any such covenants, agreements or
conditions.
(c) Lender has approved a form of Occupancy Lease to be
used by Borrower in connection with the Property (the "FORM LEASE"). Borrower
shall not, without the prior written consent of Lender, modify or alter the Form
Lease in any material respect. In addition, Borrower shall not, without the
prior written consent of Lender, surrender, terminate, modify or alter, either
orally or in writing, any Occupancy Lease now existing or hereafter made with
any Major Tenant (as hereinafter defined) for all or part of the Property,
permit an assignment or sublease of any such Occupancy Lease, or request or
consent to the subordination of any Occupancy Lease to any lien subordinate to
this Mortgage. Borrower shall furnish Lender with copies of all executed
Occupancy Leases of all or any part of the Property now existing or hereafter
made, and Borrower shall assign to Lender (which assignment shall be in form and
content acceptable to Lender), as additional security for the Note and the Loan,
all Occupancy Leases now existing or hereafter made for all or any part of the
Property.
(d) Notwithstanding the foregoing approval by Lender of
Borrower's Form Lease, Lender hereby specifically reserves the right to approve
all prospective tenants under all Occupancy Leases hereafter proposed to be made
if either: (i) the term thereof, excluding options to renew the same, exceeds
five years; or (ii) the net rentable area to be occupied thereunder, including
expansion options, exceeds ten percent (10%) of the net leasable area of each of
the buildings comprising the Improvements (the tenants under such leases being
hereinafter referred to as "MAJOR TENANTS"). Borrower shall notify Lender in
writing of all
Omaha, Nebraska
17
prospective Major Tenants, and shall deliver to Lender, at Borrower's sole cost
and expense, a copy of the prospective Major Tenant's current financial
statement and the most recent Dun & Bradstreet credit report on said prospective
Major Tenant. The financial statement delivered to Lender hereunder shall be
certified as true and correct by the Major Tenant, or, if available, by a
certified public accountant.
(e) In no event shall Borrower exercise any right to
relocate any tenant outside the Property pursuant to any right set forth in an
Occupancy Lease without the prior written consent of Lender.
13. MAINTENANCE OF PARKING & ACCESS PROHIBITION AGAINST
ALTERATION; SEPARATE TAX LOT.
(a) Borrower shall construct, keep and constantly
maintain, as the case may be, all curbs, drives, parking areas and the number of
parking spaces heretofore approved by Lender, or heretofore or hereafter
required by any Laws or any governmental body, agency or authority having
jurisdiction over Borrower or the Property, and as required by the terms of the
Occupancy Leases, and not to alter, erect, build or construct upon any portion
of the Property, any building, structure or improvement of any kind whatsoever,
the erection, building or construction of which has not been previously approved
by Lender in writing, which approval shall be at the sole discretion of Lender.
(b) Borrower shall cause the Property to remain
separately assessed for real estate tax purposes as a separate tax lot or lots.
14. EXECUTION OF ADDITIONAL DOCUMENTS. Borrower shall do, make,
execute, acknowledge, witness and deliver all deeds, conveyances, mortgages,
deeds of trust, assignments, estoppel certificates, subordination
non-disturbance and attornments, notices of assignments, transfers, assurances,
security agreements, financing statements and renewals thereof, and all other
instruments or other acts necessary, as Lender shall from time to time require
for the purpose of better assuring, conveying, assigning, transferring, securing
and confirming unto Lender the Property and rights hereby encumbered, created,
conveyed, assigned or intended now or hereafter so to be encumbered, created,
conveyed or assigned, or which Borrower may now be or may hereafter become bound
to encumber, create, convey or assign to Lender, or for the purpose of carrying
out the intention or facilitating the performance of the terms of this Mortgage,
or for filing, registering or recording this Mortgage, and to pay all filing,
registration or recording fees and all taxes, costs and other expenses,
including Reasonable Attorneys' Fees, incident to the preparation, execution,
acknowledgment, delivery and recordation of any of the same. By signing this
Mortgage, Borrower authorizes Lender to file such financing statements, with or
without the signature of Borrower, as Lender may elect, as may be necessary or
desirable to perfect the lien of Lender's security interest in the Fixtures and
Personal Property. Without limiting any other
Omaha, Nebraska
18
provision herein, Borrower hereby authorizes Lender to file one or more
financing statements and any renewal or continuation statements thereof,
describing the Property and the proceeds of the Property, including, without
limitation, a financing statement covering "all assets of Borrower all proceeds
therefrom, and all rights and privileges with respect thereto." Borrower further
authorizes Lender to file, with or without any additional signature from
Borrower, as Lender may elect, such amendments and continuation statements as
Lender may deem necessary or desirable from time to time to perfect or continue
the lien of Lender's security interest in the Fixtures and Personal Property.
Borrower hereby ratifies any financing statements that may have been filed by
Lender in advance of the date hereof to perfect Lender's security interest in
the Fixtures and Personal Property.
15. AFTER-ACQUIRED PROPERTY SECURED. Borrower shall subject to the
lien of this Mortgage all right, title and interest of Borrower in and to all
extensions, improvements, betterments, renewals, substitutions and replacements
of, and all additions and appurtenances to, the Property hereinabove described,
hereafter acquired by or released to Borrower, or constructed, assembled or
placed by Borrower on the Real Property, and all conversions of the security
constituted thereby, immediately upon such acquisition, release, construction,
assembling, placement or conversion, as the case may be, and in each such case,
without any further mortgage, deed of trust, encumbrance, conveyance, assignment
or other act by Borrower, as fully, completely and with the same effect as
though now owned by Borrower and specifically described herein, but at any and
all times, Borrower will execute and deliver to Lender any and all such further
assurances, mortgages, deeds of trust, conveyances, security agreements,
financing statements or assignments thereof or security interests therein as
Lender may reasonably require for the purpose of expressly and specifically
subjecting the same to the lien of this Mortgage.
16. PAYMENTS BY LENDER ON BEHALF OF BORROWER. Borrower shall make
payment of any taxes, assessments or public charges on or with respect to the
Property before the same shall become delinquent, or to make payment of any
insurance premiums or other charges, impositions, or liens herein or elsewhere
required to be paid by Borrower, or if Borrower shall fail so to do, then
Lender, at its sole option, but without obligation to do so, may make payment or
payments of the same and also may redeem the Property from tax sale without any
obligation to inquire into the validity of such taxes, assessments, charges,
impositions or liens. In the case of any such payment by Lender, Borrower agrees
to reimburse Lender, upon demand therefor, the amount of such payment and of any
fees and expenses attendant in making the same, together with interest thereon
at the lesser of either: (a) the highest rate of interest then allowed by the
Laws of the State or, if controlling, the Laws of the United States, or (b) the
then applicable interest rate of the Note plus five hundred (500) basis points
per annum; and until paid such amounts and interest shall be added to and become
part of the Loan to the same extent that this Mortgage secures the repayment of
the Loan. In making payments authorized by the provisions of this Section 16,
Lender may do so whenever, in Lender's sole judgment and discretion, such
advance or advances are necessary
Omaha, Nebraska
19
or desirable to protect the full security intended to be afforded by this
Mortgage. Neither the right nor the exercise of the rights herein granted to
Lender to make any such payments as aforesaid shall preclude Lender from
exercising its option to cause the Loan to become immediately due and payable by
reason of Borrower's default in making such payments as hereinabove required.
17. FUNDS HELD BY LENDER FOR TAXES, ASSESSMENTS, INSURANCE
PREMIUMS, AND OTHER CHARGES. In order to more fully protect the security of this
Mortgage, Borrower shall deposit with Lender, together with and in addition to
each monthly payment due on account of the Loan, an amount equal to one-twelfth
(1/12th) of the annual total of such taxes, assessments, insurance premiums and
other charges (all as estimated by Lender in its sole discretion) so that, at
least thirty (30) days prior to the due date thereof, Lender shall be able to
pay in full all such taxes, assessments, insurance premiums and other charges as
the same shall become due. Lender may hold the sums so deposited without paying
interest, commingle same with its general funds and/or apply the same to the
payment of said taxes, assessments, insurance premiums or other charges as they
become due and payable. If at any time the funds so held by Lender are
insufficient to pay such taxes, assessments, insurance premiums or other charges
as they become due and payable, Borrower shall immediately, upon Written Notice
and demand by Lender, deposit with Lender the amount of such deficiency. The
failure on the part of Borrower to do so shall entitle Lender, at Lender's sole
option, to make such payments in accordance with the rights and pursuant to the
conditions elsewhere provided in this Mortgage. Borrower hereby grants to Lender
a security interest in all funds deposited with Lender, and such funds are
hereby pledged by Borrower to Lender for the purpose of securing all
indebtedness and obligations secured by this Mortgage. Whenever any default
exists under this Mortgage, Lender may, at Lender's sole option but without an
obligation so to do, apply any funds so held by Lender pursuant to this Section
17 toward the payment of the Loan, notwithstanding the fact that the amount
owing thereon may not then be due and payable or that the Loan may otherwise be
adequately secured, in such order and manner of application as Lender may elect.
18. CONDEMNATION; EMINENT DOMAIN. All claims and rights of action
for, and all awards and other compensation heretofore or hereafter made to
Borrower and all subsequent owners of the Property in any taking by eminent
domain, recovery for inverse condemnation or by deed in lieu thereof, whether
permanent or temporary, of all or any part of the Property or any easement or
any appurtenance thereto, including severance and consequential damages and
change in grade of any way, street, avenue, road, alley, passage or public
place, are hereby assigned to Lender. Borrower hereby irrevocably appoints
Lender as its attorney-in-fact, coupled with an interest, and authorizes,
directs and empowers Lender, at the option of Lender as said attorney-in-fact,
on behalf of Borrower, its successors and assigns, to adjust or compromise the
claim for any such award, and alone to collect and receive the proceeds thereof,
to give proper receipts and acquittances therefor and, after deducting any
expenses of collection, Lender shall at its sole option either:
Omaha, Nebraska
20
(a) apply the net proceeds as a credit upon any portion
of the Loan, as selected by Lender, notwithstanding the fact that the amount
owing thereon may not then be due and payable, or that the Loan is otherwise
adequately secured. In the event Lender applies such awards to the reduction of
the outstanding Loan evidenced by the Note, such proceeds shall be applied at
par, and the monthly installments due and payable under the Note shall be
reduced accordingly as calculated by Lender; however no such application shall
serve to cure an existing default of Borrower; or
(b) hold said proceeds without any allowance of interest,
and make the same available for restoration or rebuilding of the Improvements.
In the event that Lender makes said proceeds available to reimburse Borrower for
the cost of the restoration or rebuilding of the Improvements on the Real
Property, such proceeds shall be made available in the manner and under the same
conditions as required under Section 8 hereof. If the proceeds are made
available by Lender to reimburse Borrower for the cost of said restoration or
rebuilding, any surplus which may remain out of said award after payment of such
cost of restoration or rebuilding, shall be applied on account of the Loan at
par notwithstanding the fact that the amount owing thereon may not then be due
and payable or that the Loan may otherwise be adequately secured.
In the event of a taking or condemnation, provided that Borrower is not
then in default hereunder beyond the expiration of applicable notice and cure
periods, then notwithstanding any provision of this Section 19 to the contrary,
Lender shall make condemnation proceeds available for restoration of the
Property to the extent required under the terms of the Borders Lease.
Borrower further covenants and agrees to give Lender immediate notice
of the actual or threatened commencement of any proceedings under eminent
domain, and to deliver to Lender copies of any and all papers served in
connection with any such proceedings. Borrower further covenants and agrees to
make, execute and deliver to Lender, at any time or times, upon request, free,
clear and discharged of any encumbrance of any kind whatsoever, any and all
further assignments and/or other instruments deemed necessary by Lender for the
purpose of validly and sufficiently assigning all such awards and other
compensation heretofore or hereafter made to Lender (including the assignment of
any award from the United States government at any time after the allowance of
the claim therefor, the ascertainment of the amount thereof and the issuance of
the warrant for payment thereof).
It shall be a default hereunder if either: (i) any part of any of the
Improvements situated on the Real Property shall be condemned by any
governmental authority having jurisdiction; or (ii) lands constituting a portion
of the Real Property shall be condemned by any governmental authority having
jurisdiction, such that the remaining Property is in violation of applicable
parking, zoning, platting, or other ordinances, or fails to comply with the
terms of the Occupancy Leases with Major Tenants. In either of said events,
Lender shall be entitled to
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exercise any or all remedies provided or referenced in this Mortgage or the
other Loan Documents, including the application of condemnation proceeds to the
outstanding principal balance of the Note at par, and the right to accelerate
the maturity date of the Note and require payment in full without the imposition
of a Prepayment Premium.
19. COSTS OF COLLECTION. In the event that the Note is placed in
the hands of an attorney for collection, or in the event that Lender shall
become a party either as plaintiff or as defendant, in any action, suit, appeal
or legal proceeding (including, without limitation, foreclosure, condemnation,
bankruptcy, administrative proceedings or any proceeding wherein proof of claim
is by law required to be filed), hearing, motion or application before any court
or administrative body in relation to the Property or the lien and security
interest granted or created hereby or herein, or for the recovery or protection
of the Loan or the Property, or for the foreclosure of this Mortgage, or for the
enforcement of the terms and conditions of the Loan Documents, Borrower shall
indemnify, save, defend and hold Lender harmless from and against any and all
Losses incurred by Lender on account thereof, and Borrower shall repay, on
demand, all such Losses, together with interest thereon until paid at the lesser
of either (a) the highest rate of interest then allowed by the Laws of the
State, or, if controlling, the Laws of the United States, or (b) the then
applicable rate of interest of the Note plus five hundred (500) basis points per
annum; all of which sums, if unpaid, shall be added to and become a part of the
Loan.
20. DEFAULT RATE. Any sums not paid when due, whether maturing by
lapse of time or by reason of acceleration under the provisions of the Note,
this Mortgage or any of the other Loan Documents, and whether principal,
interest or money owing for advancements pursuant to the terms of this Mortgage
or any other Loan Document, shall bear interest until paid at the lesser of
either (a) the highest rate of interest then allowed by the Laws of the State,
or, if controlling, the Laws of the United States, or (b) the then applicable
rate of interest of the Note plus five hundred (500) basis points per annum; all
of which sums shall be added to and become a part of the Loan.
21. SAVINGS CLAUSE. Notwithstanding any provisions in the Note or
in this Mortgage to the contrary, the total liability for payments in the nature
of interest, including but not limited to Prepayment Premiums, default interest
and late payment charges, shall not exceed the limits imposed by the Laws of the
State or, if controlling, the Laws of the United States, relating to maximum
allowable charges of interest. Lender shall not be entitled to receive, collect
or apply, as interest on the Loan, any amount in excess of the maximum lawful
rate of interest permitted to be charged by any Laws. In the event Lender ever
receives, collects or applies as interest any such excess, such amount which
would be excessive interest shall be applied to reduce the unpaid principal
balance of the Loan evidenced by the Note. If the unpaid principal balance of
such Loan has been paid in full, any remaining excess shall be forthwith
returned to Borrower.
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22. BANKRUPTCY, REORGANIZATION OR ASSIGNMENT.
(a) It shall be a default hereunder if Borrower or any
general partner or managing member of Borrower shall: (a) elect to dissolve or
liquidate its business organization or wind up its business affairs without
receiving the prior written approval of Lender; (b) consent to the appointment
of a receiver, trustee or liquidator of all or a substantial part of its assets;
(c) be adjudicated as bankrupt or insolvent, or file a voluntary petition in
bankruptcy, or admit in writing its inability to pay its debts as they become
due; (d) make a general assignment for the benefit of creditors; (e) file a
petition under or take advantage of any insolvency law; (f) file an answer
admitting the material allegations of a petition filed against Borrower or any
general partner or managing member of Borrower in any bankruptcy, reorganization
or insolvency proceeding, or fail to cause the dismissal of such petition within
thirty (30) days after the filing of said petition; (g) take action for the
purpose of effecting any of the foregoing; or (h) if any order, judgment or
decree shall be entered upon an application of a creditor of Borrower or any
general partner or managing member of Borrower by a court of competent
jurisdiction approving a petition seeking appointment of a receiver or trustee
of all or a substantial part of Borrower's assets or any of Borrower's general
partner's or managing member's assets and such order, judgment or decree shall
continue unstayed and in effect for a period of thirty (30) days.
(b) Borrower covenants and agrees that it has not and
shall not:
(i) engage in any business or activity other
than the acquisition, ownership, operation and maintenance of the
Property, and activities incidental thereto;
(ii) acquire or own any material asset other than
(1) the Property, and (2) such incidental Fixtures and Personal
Property as may be necessary for the operation of the Property;
(iii) merge into or consolidate with any person or
entity or dissolve, terminate or liquidate in whole or in part,
transfer or otherwise dispose of all or substantially all of its assets
or change its legal structure, without in each case Lender's consent;
(iv) fail to preserve its existence as an entity
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization or formation, or without the prior
written consent of Lender, amend, modify, terminate or fail to comply
with the provisions of Borrower's Governing Documents (as hereafter
defined);
(v) own any subsidiary or make any investment in
or acquire the obligations or securities of any other person or entity
without the consent of Lender;
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(vi) commingle its assets with the assets of any
of its partner, members, shareholders, affiliates, or of any other
person or entity or transfer any assets to any such person or entity
other than distributions on account of equity interests in the Borrower
permitted hereunder and properly accounted for;
(vii) incur any debt, secured or unsecured, direct
or contingent (including guaranteeing any obligation, other than the
Affiliate Loans), other than the Loan, except unsecured trade and
operational debt incurred with trade creditors in the ordinary course
of its business of owning and operating the Property in such amounts as
are normal and reasonable under the circumstances, provided that such
debt is not evidenced by a note and is paid when due and provided in
any event the outstanding principal balance of such debt shall not
exceed at any one time 1% of the outstanding Loan. Borrower shall not
be deemed in default of the foregoing restrictions by virtue of any
guaranty or cross default agreement delivered by Borrower with respect
to the Affiliate Loans;
(viii) allow any person or entity to pay its debts
and liabilities (except a Guarantor - or in connection with the
cross-default and cross collateralization of the Affiliate Loans) or
fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of
account and bank accounts separate and apart from those of the
shareholders, partners, members, principals and affiliates of Borrower,
the affiliates of a shareholder, partner or member of Borrower, and any
other person or entity or fail to prepare and maintain its own
financial statements in accordance with generally accepted accounting
principles and susceptible to audit, or if such financial statements
are consolidated fail to cause such financial statements to contain
footnotes disclosing that the Property is actually owned by the
Borrower;
(x) enter into any contract or agreement with
any shareholder, partner, member, principal or affiliate of Borrower,
any guarantor of all or a portion of the Loan (a "GUARANTOR") or any
shareholder, partner, member, principal or affiliate thereof, except
upon terms and conditions that are intrinsically fair and substantially
similar to those that would be available on an arms-length basis with
third parties other than any shareholder, partner, member, principal or
affiliate of Borrower or Guarantor, or any shareholder, partner,
member, principal or affiliate thereof;
(xi) seek dissolution or winding up, in whole or
in part;
(xii) fail to correct any known misunderstandings
regarding the separate identity of Borrower;
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(xiii) hold itself out to be responsible or pledge
its assets or credit worthiness for the debts of another person or
entity or allow any person or entity to hold itself out to be
responsible or pledge its assets or credit worthiness for the debts of
the Borrower (except for a Guarantor);
(xiv) make any loans or advances to any third
party, including any shareholder, partner, member, principal or
affiliate of Borrower, or any shareholder, partner, member, principal
or affiliate thereof, except as may be required in connection with the
cross default and cross collateralization of the Affiliate Loans;
(xv) fail to file its own tax returns, if
required under applicable law, or to use separate contracts, purchase
orders, stationary, invoices and checks, except that Borrower may file
a consolidated tax return with Agree Limited Partnership for reporting
purposes;
(xvi) fail either to hold itself out to the public
as a legal entity separate and distinct from any other entity or person
or to conduct its business solely in its own name in order not (1) to
mislead others as to the entity with which such other party is
transacting business, or (2) to suggest that Borrower is responsible
for the debts of any third party (including any shareholder, partner,
member, principal or affiliate of Borrower, or any shareholder,
partner, member, principal or affiliate thereof);
(xvii) fail to allocate fairly and reasonably among
Borrower and any third party (including, without limitation, any
Guarantor) any overhead for common employees, shared office space or
other overhead and administrative expenses;
(xviii) allow any person or entity to pay the
salaries of its own employees or fail to maintain a sufficient number
of employees for its contemplated business operations;
(xix) fail to maintain adequate capital for the
normal obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations;
(xx) share any common logo with or hold itself
out as or be considered as a department or division of (1) any
shareholder, partner, principal, member or affiliate of Borrower, (2)
any affiliate of a shareholder, partner, principal, member or affiliate
of Borrower, or (3) any other person or entity or allow any person or
entity to identify the Borrower as a department or division of that
person or entity; or
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(xxi) conceal assets from any creditor, or enter
into any transaction with the intent to hinder, delay or defraud
creditors of the Borrower or the creditors of any other person or
entity;
23. TIME IS OF THE ESSENCE; MONETARY AND NON-MONETARY DEFAULTS. It
is understood by Borrower that time is of the essence hereof in connection with
all obligations of Borrower herein and any of the other Loan Documents.
Lender, at its sole option, may declare the Loan, as well as all other
monies secured or evidenced hereby or by any of the other Loan Documents,
including, without limitation, all Prepayment Premiums (to the extent permitted
by the Laws of the State) and late payment charges, to be in default and
forthwith due and payable, in the event:
(1) Borrower defaults in the payment of any
monthly installment of the Note, whether of principal or interest, or
both, or in the payment of any other sums of money referred to herein
or in the Note, the Borrower Cross-Default Guaranty or in any of the
other Loan Documents, promptly and fully when the same shall be due,
without notice or demand from Lender to Borrower in regard to such
Monetary Default (as hereinafter defined), and any such Monetary
Default remains uncured for a period of five (5) days after Written
Notice thereof has been given by Lender to Borrower, unless Lender has
previously given Borrower such Written Notice for a failure to pay in
the then-current Loan Year (as defined in the Note), in which event no
such notice need be given and no right to cure need be afforded
Borrower as to any further Monetary Default during such Loan Year.
(2) Borrower breaches or defaults on any of the
terms, covenants, conditions and agreements of the Note, the Borrower
Cross-Default Guaranty, this Mortgage, or any other Loan Documents; or
in the event that each and every one of said terms, covenants,
conditions and agreements is not otherwise either duly, promptly and
fully discharged or performed, and any such Non-Monetary Default (as
hereinafter defined) remains uncured for a period of thirty (30) days
after Written Notice thereof has been delivered from Lender to
Borrower; unless such Non-Monetary Default cannot be cured within said
thirty (30) day period, in which event Borrower shall have a reasonable
period of time to complete cure, provided that action to cure such
Non-Monetary Default is promptly commenced within said thirty (30) day
period, and Borrower is, in Lender's sole judgment, not diminishing or
impairing the value of the Property, and is diligently pursuing a cure
to completion, but in no event longer than ninety (90) days.
(3) Any representation or warranty of Borrower
or of its members, general partners, principals, affiliates, agents or
employees, or of any Guarantor made
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herein or in or in any other Loan Document, in any guaranty, or in any
certificate, report, financial statement or other instrument or
document furnished to Lender shall have been false or misleading in any
material respect when made.
(4) Any seizure or forfeiture of the Property,
or any portion thereof, or Borrower's interest therein, resulting from
criminal wrongdoing or other unlawful action of Borrower, its
affiliates, or any tenant in the Property under any federal, state or
local law.
(5) If Borrower consummates a transaction which
would cause this Mortgage or Lender's exercise of its rights under this
Mortgage, the Note or the other Loan Documents to constitute a
nonexempt prohibited transaction under ERISA or result in a violation
of a state statute regulating governmental plans, subjecting Lender to
liability for a violation of ERISA or a state statute.
(6) Any default occurs in the performance of any
covenant or obligation of Borrower or any other party under any
indemnity or guaranty delivered to Lender in connection with the Loan
and such default continues beyond the expiration of applicable notice
and cure periods.
(7) Any default occurs under any Affiliate Loan
which default continues beyond the expiration of applicable notice and
cure periods.
Upon the occurrence of any one of the above events, and at the option
of Lender, the principal of and the interest accrued on the Loan and all other
sums secured by this Mortgage and the other Loan Documents shall immediately
become due and payable as if all of said sums of money were originally
stipulated to be paid on such day. In addition, Lender may avail itself of all
rights and remedies provided by law or equity, and may foreclose or prosecute a
suit at law or in equity as if all monies secured hereby had matured prior to
its institution, anything in this Mortgage or any of the other Loan Documents to
the contrary notwithstanding. Lender shall have no obligation to give Borrower
notice of, or any period to cure, any Monetary Default or any Incurable Default
(as hereinafter defined) prior to exercising its rights, powers, privileges and
remedies.
As used herein, the term "MONETARY DEFAULT" shall mean any default
which can be cured by the payment of money such as, but not limited to, the
payment of principal and interest due under the Note, or the payment of taxes,
assessments and insurance premiums when due as provided in this Mortgage. As
used herein, the term "NON-MONETARY DEFAULT" shall mean any default that is not
a Monetary Default or an Incurable Default. As used herein, the term "INCURABLE
DEFAULT" shall mean either: (i) any voluntary or involuntary sale, assignment,
mortgaging, encumbering or transfer in violation of the covenants contained
herein or any of the other Loan Documents; or (ii) if Borrower, or any person or
entity comprising
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Borrower or any guarantor or indemnitor of the Loan, should breach any of the
provisions of Section 22.
24. FORECLOSURE. Upon the occurrence of a default hereunder,
Lender may institute an action to foreclose this Mortgage as to the amount so
declared due and payable, and thereupon the Property (or any portion thereof)
shall be sold according to law to satisfy and pay the same, together with all
costs, expenses and allowances thereof, including, without limitation,
Reasonable Attorneys' Fees. The Property may be sold in one parcel, several
parcels or groups of parcels, and Lender shall be entitled to bid at the sale,
and, if Lender is the highest bidder for the Property or any part or parts
thereof, Lender shall be entitled to purchase the same. The failure or omission
on the part of Lender to exercise the option for acceleration of maturity of the
Note and foreclosure of this Mortgage following any default as aforesaid or to
exercise any other option or remedy granted hereunder to Lender when entitled to
do so in any one or more instances, or the acceptance by Lender of partial
payment of the Loan, whether before or subsequent to Borrower's default
hereunder, shall not constitute a waiver of any such default or the right to
exercise any such option or remedy, but such option or remedy shall remain
continuously in force. Acceleration of the maturity of the Note, once claimed
hereunder by Lender, at the option of Lender, may be rescinded by written
acknowledgment to that effect by Lender, but the tender and acceptance of
partial payments alone shall not in any way either affect or rescind such
acceleration of maturity, nor act as a waiver, accord and satisfaction,
modification, novation or similar defense.
25. UCC REMEDIES.
(a) This Mortgage constitutes a Security Agreement under
the UCC with respect to any part of the Property that may or might now or
hereafter be or be deemed to be personal property, fixtures or property other
than real estate, and the following provisions of this section shall not limit
the generality or applicability of any other provision of this Mortgage but
shall be in addition thereto:
(1) No financing statement covering any of the
Property or any proceeds thereof is on file in any public office; and
Borrower will, at its cost and expense, upon demand, furnish to Lender
such further information and will execute and deliver to Lender such
financing statements and other documents in form reasonably
satisfactory to Lender and will do all such acts and things as Lender
may at any time or from time to time reasonably request or as may be
reasonably necessary or appropriate to establish and maintain a
perfected security interest in the Property as security for the Loan,
subject to no adverse liens or encumbrances; and Borrower will pay the
cost of filing the same or filing or recording such financing
statements or other documents and this instrument in all public offices
wherever filing or recording is deemed by Lender to be necessary or
desirable;
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(2) The terms and provisions contained in this
section and in Section 24(b) of this Mortgage shall, unless the context
otherwise requires, have the meanings and be construed as provided in
the Code;
(3) This Mortgage constitutes a security
agreement and financing statement under the UCC with respect to the
Property. As such, this Mortgage covers any portion of the Property
that is personal property including all items which are to become
fixtures. Borrower is the "Debtor" and Lender is the "Secured Party"
(as those terms are defined and used in the UCC) insofar as this
Mortgage constitutes a financing statement.
(b) Upon the occurrence of a default, Lender may exercise
its rights of enforcement with respect to the Fixtures and Personal Property
under the UCC, and in conjunction with, in addition to or in substitution for
those rights and remedies:
(1) Written Notice mailed to Borrower as
provided herein ten (10) days prior to the date of public sale of the
Fixtures and Personal Property or prior to the date after which private
sale of the Fixtures and Personal Property will be made shall
constitute reasonable notice;
(2) any sale made pursuant to the provisions of
this Section shall be deemed to have been a public sale conducted in a
commercially reasonable manner if held contemporaneously with the sale
of the Mortgaged Property under power of sale as provided herein upon
giving the same notice with respect to the sale of the Fixtures and
Personal Property hereunder as is required for such sale of the
Mortgaged Property under power of sale;
(3) in the event of a foreclosure sale, whether
made under the terms hereof, or under judgment of a court, the Fixtures
and Personal Property and the Mortgaged Property may, at the option of
Lender, be sold as a whole;
(4) it shall not be necessary that Lender take
possession of the Fixtures and Personal Property or any part thereof
prior to the time that any sale pursuant to the provisions of this
Section is conducted and it shall not be necessary that the Fixtures
and Personal Property or any part thereof be present at the location of
such sale;
(5) prior to application of proceeds of
disposition of the Fixtures and Personal Property to the secured
indebtedness, such proceeds shall be applied to the reasonable expenses
of retaking, holding, preparing for sale or lease, selling, leasing and
the like and the Reasonable Attorneys' Fees and other legal expenses
incurred by Lender;
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(6) any and all statements of fact or other
recitals made in any xxxx of sale or assignment or other instrument
evidencing any foreclosure sale hereunder as to nonpayment of the
indebtedness or as to the occurrence of any default, or as to Lender
having declared all of such indebtedness to be due and payable, or as
to notice of time, place and terms of sale and of the properties to be
sold having been duly given, or as to any other act or thing having
been duly done by Lender, shall be taken as prima facie evidence of the
truth of the facts so stated and recited;
(7) Lender may appoint or delegate any one or
more persons as agent to perform any act or acts necessary or incident
to any sale held by Lender, including the sending of notices and the
conduct of the sale, but in the name and on behalf of Lender; and
(8) this Mortgage covers Goods which are or are
to become Fixtures related to the Real Property, and covers
As-Extracted Collateral related to the Real Property. A carbon,
photographic or other reproduction of this Mortgage or of any financing
statement relating to this Mortgage shall be sufficient as a financing
statement. This Mortgage shall be effective as a financing statement
filed as a fixture filing with respect to all fixtures included within
the Property and is to be filed for record in the real estate records
in the Office of the County Clerk where the Property (including said
fixtures) is situated. This Mortgage shall also be effective as a
financing statement As-Extracted Collateral with respect to all
As-Extracted Collateral included within the Real Property (including,
without limitation, all oil, gas, other minerals, and other substances
of value which may be extracted from the earth and all accounts arising
out of the sale at the wellhead or minehead thereof), and is to be
filed for record in the real estate records of the county where the
Property is situated. The mailing address of Borrower is set forth in
Section 43 of this Mortgage and the address of Lender from which
information concerning the security interest may be obtained is the
address of Lender set forth in Section 43 of this Mortgage.
26. PROTECTION OF LENDER'S SECURITY. At any time after default
hereunder, Lender, or Lender's agents or contractors, is authorized, without
notice and in Lender's sole discretion, to enter upon and take possession of the
Property or any part thereof, and to perform any acts which Lender deems
necessary or proper to conserve the security interest herein intended to be
provided by the Property, to operate any business or businesses conducted
thereon, and to collect and receive all Rents thereof and therefrom, including
those past due as well as those accruing thereafter.
27. APPOINTMENT OF RECEIVER. If, at any time after a default
hereunder, Lender deems, in Lender's sole discretion, that a receivership may be
necessary to protect the Property or its Rents, whether before or after maturity
of the Note and whether before or at the time of or after the institution of
foreclosure or suit to collect the Loan or to enforce this
Xxxxx, Xxxxxxxx
00
Mortgage or any of the other Loan Documents, Lender, as a matter of strict right
and regardless of the value of the Property or the amounts due hereunder or
secured hereby, or of the solvency of any party bound for the payment of such
indebtedness, shall have the right, upon ex parte application and without notice
to anyone, and by any court having jurisdiction, to the appointment of a
receiver to take charge of, manage, preserve, protect and operate the Property,
to collect the Rents thereof, to make all necessary and needful repairs, and to
pay all taxes, assessments, insurance premiums and other such charges against
and expenses of the Property, and to do such other acts as may by such court be
authorized and directed, and after payment of the expenses of the receivership
and the management of the Property, to apply the net proceeds of such
receivership in reduction of the Loan or in such other manner as the said court
shall direct notwithstanding the fact that the amount owing thereon may not then
be due and payable or the said Loan is otherwise adequately secured. Such
receivership shall, at the option of Lender, continue until full payment of all
sums hereby secured or until title to the Property shall have passed by sale
under this Mortgage. Borrower hereby specifically waives its right to object to
the appointment of a receiver as aforesaid, and hereby expressly agrees that
such appointment shall be made as an admitted equity and as a matter of absolute
right to Lender.
28. RIGHTS AND REMEDIES CUMULATIVE; FORBEARANCE NOT A WAIVER. The
rights and remedies herein provided are cumulative, and Lender, as the holder of
the Note and of every other obligation secured hereby, may recover judgment
thereon, issue execution therefor and resort to every other right or remedy
available at law or in equity, without first exhausting any right or remedy
available to Lender and without affecting or impairing the security of any right
or remedy afforded hereby, and no enumeration of special rights or powers by any
provisions hereof shall be construed to limit any grant of general rights or
powers, or to take away or limit any and all rights granted to or vested in
Lender by law or equity. Borrower further agrees that no delay or omission on
the part of Lender to exercise any rights or powers accruing to it hereunder
shall impair any such right or power, or shall be construed to be a waiver of
any such default hereunder or an acquiescence therein; and every right, power
and remedy granted herein or by law or equity to Lender may be exercised from
time to time as often as Lender deems expedient.
Lender may resort to any security given by this Mortgage or to any
other security now existing or hereafter given to secure the payment of the
Loan, in whole or in part, and in such portions and in such order as may seem
best to Lender in its sole discretion, and any such action shall not be
considered as a waiver of any of the rights, benefits, liens or security
interests evidenced by this Mortgage. To the full extent Borrower may do so,
Borrower agrees that Borrower will not at any time insist upon, plead, claim or
take the benefit or advantage of any law now or hereafter in force pertaining to
the rights and remedies of sureties or providing for any appraisement,
valuation, stay, extension or redemption, and Borrower, for Borrower and
Borrower's heirs, devisees, representatives, successors and assigns, and for any
and all persons ever claiming any interest in the Property, to the extent
permitted by law, hereby
Omaha, Nebraska
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waives and releases all rights of redemption, valuation, appraisement, stay of
execution, notice of intention to mature or declare due the whole of the secured
indebtedness, notice of election to mature or declare due the whole of the
secured indebtedness and all rights to a marshaling of the assets of Borrower,
including the Property, or to a sale in inverse order of alienation in the event
of foreclosure of the liens and security interests hereby created. Borrower
shall not have or assert any right under any statute or rule of law pertaining
to the marshaling of assets, sale in inverse order of alienation, the exemption
of homestead, the administration of estates of decedents or other matters
whatever to defeat, reduce or affect the right of Lender under the terms of this
Mortgage to a sale of the Property for the collection of the secured
indebtedness without any prior or different resort for collection, or the right
of Lender under the terms of this Mortgage to the payment of such indebtedness
out of the proceeds of sale of the Property in preference to every other
claimant whatever. If any law referred to in this Section and now in force, of
which Borrower or Borrower's heirs, devisees, representatives, successors and
assigns and such other persons claiming any interest in the Property might take
advantage despite this Section, shall hereafter be repealed or cease to be in
force, such law shall not thereafter be deemed to preclude the application of
this Section.
29. MODIFICATION NOT AN IMPAIRMENT OF SECURITY. Lender, without
notice and without regard to the consideration, if any, paid therefor, and
notwithstanding the existence at that time of any inferior mortgages, deeds of
trust, or other liens thereon, may release any part of the security described
herein, or may release any person or entity liable for the Loan without in any
way affecting the priority of this Mortgage, to the full extent of the Loan
remaining unpaid hereunder, upon any part of the security not expressly
released. Lender may, at its option and within Lender's sole discretion, also
agree with any party obligated on the Loan, or having any interest in the
security described herein, to extend the time for payment of any part or all of
the Loan, and such agreement shall not, in any way, release or impair this
Mortgage, but shall extend the same as against the title of all parties having
any interest in said security, which interest is subject to this Mortgage.
30. PROPERTY MANAGEMENT AND LEASING. The exclusive manager of the
Property shall be Borrower, or such other manager as may be first approved in
writing by Lender. The exclusive leasing agent of the Property, if other than
Borrower or the foregoing party, shall be first approved in writing by Lender.
The management and leasing contracts (or in the absence of any such written
contract, a letter so stating and further identifying the name of the person or
entity charged with the responsibility for managing and/or leasing the Property)
shall be subordinate to this Mortgage, and satisfactory to and subject to the
prior written approval of Lender throughout the term of the Loan. Upon default
in either of these requirements, then the whole of the Loan hereby secured
shall, at the election of Lender, become immediately due and payable, together
with any Prepayment Premium, late payment charges and all other sums required by
the Note or the other Loan Documents, and Lender shall be entitled to exercise
any or all remedies provided for or referenced in this Mortgage.
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00. MODIFICATION NOT A WAIVER. In the event Lender (a) releases,
as aforesaid, any part of the security described herein or any person or entity
liable for the Loan; (b) grants an extension of time for the payment of the
Note; (c) takes other or additional security for the payment of the Note; or (d)
waives or fails to exercise any rights granted herein, in the Note, or any of
the other Loan Documents, any said act or omission shall not release Borrower,
subsequent purchasers of the Property or any part thereof, or makers, sureties,
endorsers or guarantors of the Note, if any, from any obligation or any covenant
of this Mortgage, the Note or any of the other Loan Documents, nor preclude
Lender from exercising any right, power or privilege herein granted or intended
to be granted in the event of any other default then made, or any subsequent
default.
32. TRANSFER OF PROPERTY OR CONTROLLING INTEREST IN BORROWER;
ASSUMPTION. Except as set forth in Section 38(b) hereof, without the prior
written consent of Lender, the sale, transfer, assignment or conveyance of all
or any portion of the Property, or the transfer, assignment or conveyance of a
controlling interest in Borrower or its general partner or managing member, or
any guarantor, whether voluntary or by operation of law, without the prior
written consent of Lender, shall constitute a default hereunder, and entitle
Lender, at Lender's sole option, to accelerate all sums due on the Note,
together with any Prepayment Premiums (to the extent permitted by the Laws of
the State), late payment charges or any other amounts secured hereby. Lender
may, however, elect to waive the option to accelerate granted hereunder if,
prior to any such sale, transfer, assignment or conveyance of the Property, the
following conditions shall be fully satisfied: (a) Lender acknowledges in
writing that, in Lender's sole discretion, the creditworthiness of the proposed
transferee and the ability and experience of the proposed transferee to operate
the Property are satisfactory to Lender, (b) Lender and the proposed transferee
shall enter into an agreement in writing that (i) the rate of interest payable
on the Loan shall be at such rate as Lender shall determine, (ii) the repayment
schedule as set forth in the Note shall be modified by Lender, in Lender's sole
discretion, to initiate amortization or modify the existing amortization
schedule in order to amortize the then remaining unpaid principal balance of the
Note over a period of time as determined by Lender, in Lender's sole discretion,
without a change in the maturity date of the Note, and (iii) the proposed
transferee shall assume all obligations of Borrower under the Note, this
Mortgage and the other Loan Documents in writing and an assumption fee, to be
determined by Lender in Lender's sole discretion, may be charged by Lender; (c)
Lender shall receive, for Lender's review and approval, copies of all transfer
documents; and (d) Borrower or the transferee shall pay all costs and expenses
in connection with such transfer and assumption, including, without limitation,
all fees and expenses incurred by Lender.
Borrower, or any subsequent owner of the Property or any portion
thereof, shall do all things necessary to preserve and keep in full force and
effect its and their legal existence, franchises, rights and privileges as a
corporation, partnership or limited liability company, as the case may be, under
the laws of the State of its formation and its right to own property and
transact business in the State. It shall be a default hereunder if Borrower, or
any subsequent
Omaha, Nebraska
33
owner of the Property or any portion thereof, shall amend, modify, transfer,
assign or terminate the applicable governing documents for such entity,
including its partnership agreement, certificate of partnership, operating
agreement, articles of organization, regulations, articles of incorporation or
bylaws, as the case may be (as applicable, the "GOVERNING DOCUMENTS"), of
Borrower or such subsequent owner without the prior written consent of Lender.
Borrower, or such subsequent owner of the Property, shall provide Lender with
copies of any proposed amendment to its applicable Governing Documents, so that
Lender may, in Lender's sole discretion, determine whether such amendment
adversely affects Lender, the Property or the security value thereof. Provided,
however, that any amendment, modification, transfer, assignment or termination
of Borrower's applicable Governing Documents or any other action pursuant to
which the current general partner or managing member of Borrower shall either:
(i) cease to be the general partner or managing member of Borrower; or (ii)
except to the extent permitted herein, cease to own or maintain a partnership or
membership interest in Borrower equal to or greater than its partnership or
membership interest at the time this Mortgage is executed, shall be deemed to
have a material adverse effect upon Lender and the Property, and shall be a
default hereunder.
Borrower shall not change its name or identity in any manner which may
make any financing or continuation statement filed in connection with the Loan
seriously misleading within the meaning of the UCC enacted in the State or
change its jurisdiction of organization unless Borrower shall have delivered to
Lender written notice thereof not less than 30 days before the effective date of
such change and shall have taken all action which Lender determines to be
reasonably necessary or desirable to confirm and protect Lender's security
interests and rights under this Mortgage and the perfection and priority
thereof. Borrower will not change its principal places of business unless it
shall have given Lender prior written notice of its intent to do so not less
than thirty (30) days in advance of the effective date of such change. Borrower
shall bear all costs incurred by Lender in connection with any such change
including, without limitation, Reasonable Attorney's Fees.
In the event the ownership of the Property, or any part thereof, shall
become vested in a person or entity other than Borrower, whether with or without
the prior written consent of Lender, Lender may, without notice to Borrower,
deal with such successor or successors in interest with reference to the
Property, this Mortgage and the other Loan Documents, in the same manner and to
the same extent as with Borrower without in any way vitiating or discharging
Borrower's liability hereunder or under any of the Loan Documents. No sale,
transfer or conveyance of the Property, no forbearance on the part of Lender and
no extension of time given by Lender to Borrower for the payment of the Note
shall operate to release, discharge, modify, change or affect the original
liability of Borrower, either in whole or in part, unless expressly set forth in
writing executed by Lender. Notwithstanding anything contained herein to the
contrary, Borrower hereby waives any right it now has or may hereafter have to
require Lender to prove an impairment of its security as a condition to the
exercise of Lender's rights under this Section 32.
Omaha, Nebraska
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A sale, transfer, assignment or conveyance within the meaning of this
Section shall be deemed to include, but not be limited to, (a) an installment
sales agreement wherein Borrower agrees to sell the Property or any part thereof
for a price to be paid in installments; (b) an agreement by Borrower leasing all
or a substantial part of the Property for other than actual occupancy by a
tenant under an Occupancy Lease or a sale, assignment or other transfer of, or
the grant of a security interest in, Borrower's right, title and interest in and
to any leases or any Rents; (c) if Borrower, any guarantor, any indemnitor, or
any general partner or managing member of Borrower, is a corporation, the
voluntary or involuntary sale, conveyance, transfer or pledge of such
corporation's stock (or the stock of any corporation directly or indirectly
controlling such corporation by operation of law or otherwise), or the creation
or issuance of new stock by which an aggregate of more than ten percent (10%) of
such corporation's stock shall be vested in a party or parties who are not now
stockholders; and (d) if Borrower, any guarantor, indemnitor, or any general
partner or managing member of Borrower, is a limited partnership, general
partnership, limited liability partnership, limited liability company, or joint
venture, the change, removal or resignation of a general partner, managing
partner, or member, or the transfer or pledge of the interest of any general
partner, managing partner, or member or any profits or proceeds relating to such
interest. Nothing in this Mortgage shall be construed to limit or restrict the
transfer of shares of Agree Realty Corporation.
Notwithstanding anything contained in this Section 32 to the contrary,
as long as no default, or event which, with notice or the passage of time or
both, could result in a default, has occurred hereunder, under the Note or any
of the other Loan Documents, Lender shall permit one (1) bona fide arm's length
transfer of the Property to another borrowing entity without a change in the
terms of the Loan; provided, however, that no such transfer shall be valid or
permitted hereunder unless: (i) Lender receives prior Written Notice of such
proposed transfer; (ii) such proposed transferee and any substitute guarantor
has been approved in writing by Lender (taking into consideration such factors
as transferee's creditworthiness, business experience, financial condition and
managerial capabilities); (iii) the transferee's (and its sole general partner's
or managing member's) single purpose and bankruptcy remote character are
satisfactory to Lender in its sole discretion; (iv) Lender has obtained such
other legal opinions regarding substantive consolidation issues, enforceability
of the assumption documents, no adverse impact on the Securities or any REMIC
holding the Note and similar matters as Lender may require, (v) the execution
and delivery to Lender of a written assumption agreement covering the Note this
Mortage, the Borrower Cross-Default Guaranty and the other Loan Documents and/or
substitute guaranty (in Lender's sole and absolute discretion) and such
modifications to the Loan Documents executed by such parties and containing such
terms and conditions as Lender may require in its sole and absolute discretion
prior to such sale or transfer (provided that in the event the Loan is included
in a REMIC and is a performing Loan, no modification to the terms and conditions
shall be made or permitted that would cause (A) any adverse tax consequences to
the REMIC or any holders of any Mortgage-Backed Pass-Through Securities, (B)
this Mortgage to fail to be a Qualifying
Omaha, Nebraska
35
Security Instrument under applicable federal law relating to REMIC's, or (C)
result in a taxation of the income from the Loan to the REMIC or cause a loss of
REMIC status), (vi) if applicable, the delivery to Lender of an endorsement (at
Borrower's sole cost and expense) to Lender's policy of title insurance then
insuring the lien created by this Mortgage in form and substance acceptable to
Lender in its sole judgment; (vii) Lender is paid a cash assumption fee in
accordance with the following schedule: Two percent (2%) of the then outstanding
principal balance of the Note if such outstanding principal balance is less than
or equal to Three Million Dollars ($3,000,000.00), one and one-half percent (1
1/2%) of the then outstanding principal balance of the Note if such outstanding
principal balance is in excess of Three Million Dollars ($3,000,000.00); (viii)
Borrower pays all fees and expenses incurred by Lender in connection with such
transfer and assumption, including, without limitation, inspection and
investigation fees, title insurance charges, and Reasonable Attorneys' Fees;
(ix) Lender approves the management agreement and leasing agreement, and the
management and leasing company to be employed by the proposed transferee and (x)
the transferee is simultaneously purchasing each of the Properties which secure
the Affiliate Loans, to the extent such Affiliate Loans remain outstanding. Any
transfer of all or any portion of the Property which does not strictly comply
with the terms and conditions of the foregoing shall be a default hereunder, and
shall entitle Lender to exercise all rights and remedies provided in this
Mortgage and the other Loan Documents. This one-time right of transfer shall
apply to the Borrower named herein and not to any subsequent owner of the
Property.
33. FURTHER ENCUMBRANCE PROHIBITED; SUBROGATION. So long as the
Note remains unpaid, Borrower shall not, either voluntarily or involuntarily,
permit the Property or any part thereof to become subject to any secondary or
subordinate lien, mortgage, deed of trust, security interest or encumbrance of
any kind whatsoever without the prior written consent of Lender, and the
imposition of any such secondary lien, mortgage, deed of trust, security
interest or encumbrance without the approval of Lender shall constitute a
default hereunder, and entitle Lender, at Lender's sole option, to declare the
outstanding principal balance of the Note, all accrued and unpaid interest
thereon, Prepayment Premiums (to the extent permitted by the laws of the State,
late payment charges and any other amounts secured hereby to be and become
immediately due and payable in full. In the event that Lender shall hereafter
give its written consent to the imposition of any such secondary lien, mortgage,
deed of trust, security interest or other encumbrance upon the Property, Lender,
at Lender's sole option, shall be entitled to accelerate the maturity of the
Note and exercise any and all remedies provided and available to Lender
hereunder and in the other Loan Documents in the event that the holder of any
such secondary lien or encumbrance shall institute foreclosure or other
proceedings to enforce the same; it being understood and agreed that a default
under any instrument or document evidencing, securing or secured by any such
secondary lien or encumbrance shall be and constitute a default hereunder. In
the event all or any portion of the proceeds of the Loan are used for the
purpose of retiring debt or debts secured by prior liens on the Property, Lender
shall be subrogated to the rights and lien priority of the holder or holders of
the lien or liens so discharged.
Xxxxx, Xxxxxxxx
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00. CONVEYANCE OF MINERAL RIGHTS PROHIBITED. Borrower agrees that
the making of any oil, gas or mineral lease, or the sale or conveyance of any
mineral interest or right to explore for minerals under, through or upon the
Property, would impair the value of the Property, and that Borrower shall have
no right, power or authority to lease the Property, or any part thereof, for
oil, gas or other mineral purposes, or to grant, assign or convey any mineral
interest of any nature, or the right to explore for oil, gas and other minerals,
without first obtaining Lender's express written permission therefor, which
permission shall not be valid until recorded among the Public Records of the
county in which the Property is located. Borrower further agrees that if
Borrower shall make, execute, or enter into any such lease or attempt to grant
any such mineral rights without such prior written permission of Lender, then
Lender shall have the option, without notice, to declare the same to be a
default hereunder, and to declare the Loan immediately due and payable in full.
Whether or not Lender shall consent to such lease or grant of mineral rights,
Lender shall receive the entire consideration to be paid for any such lease or
grant of mineral rights, with the same to be applied to the Loan notwithstanding
the fact that the amount owing thereon may not then be due and payable or that
the Loan is otherwise adequately secured; provided, however, that the acceptance
of such consideration shall in no way impair the lien of this Mortgage on the
Property or cure any existing Monetary Default.
35. ESTOPPEL CERTIFICATION BY BORROWER. Borrower, upon request of
Lender therefor made either personally or by mail, shall certify in writing to
Lender (or any party designated by Lender), in a form satisfactory to Lender or
such designee, the amount of principal and interest then outstanding under the
terms of the Note and any other sums due and owing under this Mortgage or any of
the other Loan Documents, and whether any offsets or defenses exist against the
Loan. Such certification shall be made by Borrower within ten (10) days if the
request is made personally, or within twenty (20) days if the request is made by
mail.
36. CROSS-DEFAULT. The Note is also secured by the terms,
conditions and provisions of the Assignment, by three Cross-Default Guaranty
Agreements of even date herewith from Agree - Milestone Center Project, L.L.C.,
a Delaware limited liability company, as guarantor for the Agree-Milestone Loan;
Agree - Columbia Crossing Project, L.L.C., a Delaware limited liability company,
as guarantor for the Agree-Columbia Loan; and Oklahoma City, respectively in
favor of Lender (hereinafter individually or collectively referred to as the
"AFFILIATED-BORROWER CROSS-DEFAULT GUARANTYS") and, additionally, may be secured
by contracts or agreements of guaranty or other security instruments. The terms,
covenants, conditions and agreements of each security instrument shall be
considered a part hereof as fully as if set forth herein verbatim. Any default
under this Mortgage, any Affiliated Borrower Cross-Default Guaranty or any of
the other Loan Documents shall constitute a default hereunder and under each of
the other Loan Documents. Notwithstanding the foregoing, the enforcement or
attempted enforcement of this Mortgage or any of the other Loan Documents now or
hereafter held by Lender shall not prejudice or in any manner affect
Xxxxx, Xxxxxxxx
00
the right of Lender to enforce any other Loan Document; it being understood and
agreed that Lender shall be entitled to enforce this Mortgage and any of the
other Loan Documents now or hereafter held by it in such order and manner as
Lender, in its sole discretion, shall determine.
37. EXAMINATION OF BORROWER'S RECORDS. Borrower will maintain
complete and accurate books and records showing in detail the income and
expenses of the Property, and will permit Lender and its agents, contractors or
representatives to examine said books and records and all supporting vouchers
and data during normal business hours and from time to time upon request by
Lender, in such place as such books and records are customarily kept. Borrower
will furnish to Lender, within one hundred twenty (120) days after the close of
each respective fiscal period annual and quarterly financial statements (income
statements and a balance sheet) for the Borrower and the Property. Borrower will
furnish to Lender on or before 45 calendar days after the end of each calendar
quarter the following items, each certified by Borrower as being true and
correct, in such format and in such detail as Lender or its servicer may
request: (a) a written statement (rent roll) dated as of the last day of each
such calendar quarter identifying each of the Occupancy Leases by the term,
space occupied, rental required to be paid (including percentage rents and
tenant sales), security deposit paid, any rental concessions, all rent
escalations, any rents paid more than one month in advance, any special
provisions or inducements granted to tenants, any taxes, maintenance and other
common charges paid by tenants, all vacancies and identifying any defaults or
payment delinquencies thereunder; and (b) quarterly and year-to-date operating
statements prepared for each calendar quarter during each such reporting period
detailing the total revenues received, total expenses incurred, total cost of
all capital improvements, total debt service and total cash flow. These
statements shall be in form acceptable to Lender and its servicer, shall be
prepared in accordance with generally accepted accounting principles, and shall
include a rent roll, certified as true and correct by Borrower. The statements
shall show in detail all income derived from and expenses incurred in connection
with the ownership of the Property, including current annual sales figures for
all Major Tenants of the Property if required under the Major Tenant leases or
if such financial information is otherwise available. Borrower shall deliver to
Lender, for Borrower, or any entity with whom Borrower's tax return is
consolidated, copies of all income tax returns, requests for extension and other
similar items contemporaneously with its delivery of same to the Internal
Revenue Service. In the event Borrower fails to provide such statements to
Lender within the time prescribed above, Borrower shall pay Lender the sum of
$200.00 in administrative expenses for each successive month for which the
statements are delinquent (or in the case of such statements to be delivered
prior to the transfer of the Loan to Investor (hereafter defined), for each
successive week for which the statements are delinquent). Upon a default
hereunder, Lender shall have the right to require that said financial statements
be audited and certified by a certified public accountant acceptable to Lender,
at the sole cost and expense of Borrower.
Omaha, Nebraska
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Prior to the transfer of the Loan to Investor by Lender, Borrower shall
deliver to Lender the reports required above on a monthly basis. Such reports
shall be delivered within ten calendar days after the end of each calendar
month.
In addition, at the request of Lender, but in no case more often than
once a quarter nor more than three (3) times during the term of the Loan, unless
a default has occurred, Borrower shall furnish to Lender (i) unaudited financial
statements (balance sheet, income statement, cash flow statement and current
rent roll) covering operation of the Property for periods other than those set
forth in the preceding paragraph and (ii) unaudited financial statements
(balance sheets, income statements, and cash flow statements) for Borrower, its
general partner(s), shareholder(s) or member(s) (whichever is applicable) and
for such other principals of Borrower as designated by Lender, provided that for
so long as the Property is held by Borrower such statements shall be required
only for Borrower and Agree Realty Corporation. All such statements shall be
certified to Lender to be complete, correct, and accurate by the individual (for
an individual's statements) or by an authorized representative of the entity (if
statements are for a partnership, corporation or limited liability company).
Any inspection or audit of the Property or the books and records of
Borrower, or the procuring of documents and financial and other information, by
or on behalf of Lender, shall be at Borrower's expense and shall be for Lender's
protection only, and shall not constitute any assumption of responsibility or
liability by Lender to Borrower or anyone else with regard to the condition,
construction, maintenance or operation of the Property, nor Lender's approval of
any certification given to Lender nor relieve Borrower of any of Borrower's
obligations.
38. ALTERATION, REMOVAL AND CHANGE IN USE OF PROPERTY PROHIBITED.
Borrower covenants and agrees to permit or suffer none of the following without
the prior written consent of Lender:
(a) Any structural alteration of, or addition to, the
Improvements now or hereafter situated upon the Real Property, or the addition
of any new buildings or other structure(s) thereto, other than the erection or
removal of non-load bearing interior walls or as may be permitted under the
Borders Lease, so long as the Borders Lease remains in effect; or
(b) The removal, transfer, sale or lease of the Property,
except that the removal, replacement or substitution of fixtures, equipment,
machinery, apparatus and articles of personal property (replacement or
substituted items must be of like or better quality than the removed items in
their original condition) encumbered hereby may be made in the normal course of
business; or
(c) The use of any of the Improvements now or hereafter
situated on the Real Property for any purpose other than the Existing Use and
related facilities, or as may be permitted under the Borders Lease, so long as
the Borders Lease remains in effect.
Omaha, Nebraska
39
39. FUTURE ADVANCES SECURED. This Mortgage shall secure not only
existing indebtedness, but also future advances, whether such advances are
obligatory or to be made at the option of Lender. Upon the request of Borrower,
and at Lender's option prior to release of this Mortgage, Lender may make future
advances to Borrower. All future advances with interest thereon shall be secured
by this Mortgage to the same extent as if such future advances were made on the
date of the execution of this Mortgage unless the parties shall agree otherwise
in writing, but the total secured indebtedness shall not exceed at any one time
a maximum principal amount equal to double the face amount of the Note plus
interest and costs of collection, including court costs and Reasonable
Attorneys' Fees. Any advances or disbursements made for the benefit or
protection of or the payment of taxes, assessments, levies or insurance upon the
Property, with interest on such disbursements as provided herein, shall be added
to the principal balance of the Note and collected as a part thereof. To the
extent that this Mortgage may secure more than one note, a default in the
payment of any such mortgage note shall constitute a default in the payment of
all such notes.
40. EFFECT OF SECURITY AGREEMENT. Borrower agrees to, and shall
upon the request of Lender, execute and deliver to Lender, in form and content
satisfactory to Lender, such financing statements, descriptions of property and
such further assurances as Lender, in Lender's sole discretion, may from time to
time consider necessary to create, perfect, continue and preserve the lien and
encumbrances hereof, and the security interest granted herein, upon and in the
Property. Without the prior written consent of Lender, Borrower shall not create
or suffer to be created, pursuant to the UCC, any other security interest in
such real and personal property and fixtures described herein. Upon the
occurrence of a default hereunder or Borrower's breach of any other covenants or
agreements between the parties entered into in conjunction herewith, Lender
shall have the remedies of a secured party under the UCC as provided in Section
25, and at Lender's option, the remedies provided for in this Mortgage and the
other Loan Documents. Lender, at the expense of Borrower, may cause such
statements, descriptions and assurances, as herein provided in this Section 40,
and this Mortgage, to be recorded and re-recorded, filed and refiled, at such
times and in such places as may be required or permitted by law to so create,
perfect and preserve the lien and encumbrance hereof upon all of the Property.
41. TERMS OF APPLICATION SURVIVE CLOSING. The terms and provisions
of the Application for Mortgage Loan dated August 28, 2003, and any subsequent
amendments thereto (the "APPLICATION"), executed by and between Borrower and
Lender, are incorporated herein by reference. All terms, covenants, conditions
and agreements of the Application not expressly set forth in this Mortgage and
any of the other Loan Documents shall survive the execution and delivery hereof,
and remain in full force and effect. In the event any conflict exists between
the terms, covenants, conditions and agreements of the Application and the Loan
Documents, the terms, covenants, conditions and agreements of the Loan Documents
shall prevail.
Omaha, Nebraska
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42. SUCCESSORS AND ASSIGNS; TERMINOLOGY. The provisions hereof
shall be binding upon Borrower and the heirs, personal representatives,
trustees, successors and assigns of Borrower, and shall inure to the benefit of
Lender, its successors and assigns. Where more than one Borrower is named
herein, the obligations and liabilities of said Borrower shall be joint and
several.
Wherever used in this Mortgage, unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein: (a) the word
"Borrower" shall mean Borrower and/or any subsequent owner or owners of the
Property; (b) the word "Lender" shall mean Lender or any subsequent holder or
holders of this Mortgage; (c) the word "Trustee" shall mean Trustee or any
successor Trustee under this Mortgage; (d) the word "Note" shall mean the
Note(s) secured by this Mortgage; and (e) the word "person" shall mean an
individual, trustee, trust, corporation, partnership, limited liability
corporation, limited liability partnership, joint venture or unincorporated
association. As used herein, the phrase "Reasonable Attorneys' Fees" shall mean
fees charged by attorneys selected by Lender based upon such attorneys' then
prevailing hourly rates as opposed to any statutory presumption specified by any
statute then in effect in the State. As used herein words of any gender shall
include all other genders.
43. NOTICES. All notices, reports, requests or other written
instruments required or permitted hereunder, shall be in writing, signed by the
party giving or making the same, and shall be sent hand-delivered, effective
upon receipt, sent by United States Express Mail or by a nationally recognized
overnight courier, effective upon receipt, or sent by United States registered
or certified mail, postage prepaid, with return receipt requested, deemed
effective on the earlier of the day of actual delivery as shown by the
addressee's return receipt or the expiration of three business days after the
date of mailing, addressed to the party intended to receive the same at the
address set forth below or at such other address as shall be given in writing by
any party to another ("WRITTEN NOTICE"):
If to Borrower: OMAHA STORE NO. 166 L.L.C.
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Agree
If to Lender: NATIONWIDE LIFE INSURANCE COMPANY
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Real Estate Investment Department, 34T
44. GOVERNING LAW; WAIVER OF JURY TRIAL; SEVERABILITY. BORROWER
AND LENDER, EACH TO THE FULLEST EXTENT
Omaha, Nebraska
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PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON
THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES HEREBY
THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT
LIMITATION, ANY TORT ACTION, AGAINST THE OTHER, ITS SUCCESSORS AND ASSIGNS,
BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO OR IN CONNECTION WITH ANY
OF THE LOAN DOCUMENTS, THE LOAN OR ANY COURSE OF CONDUCT, ACT, OMISSION, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON
(INCLUDING, WITHOUT LIMITATION, EITHER PARTY'S DIRECTORS, OFFICERS, PARTNERS,
MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH
EITHER), IN CONNECTION WITH THE LOAN OR THE LOAN DOCUMENTS, INCLUDING, WITHOUT
LIMITATION, IN ANY COUNTERCLAIM WHICH ANY PARTY MAY BE PERMITTED TO ASSERT
THEREUNDER, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL
LENDER, ITS SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS
OF BUSINESS PROFITS OR OPPORTUNITY) AND BY ITS EXECUTION HEREOF, BORROWER WAIVES
ANY RIGHT TO CLAIM OR SEEK ANY SUCH DAMAGES. This Mortgage and the rights and
obligations of the parties hereunder shall be governed by, and construed in
accordance with, the internal laws of the State, without regard to principles of
conflicts of laws. The parties hereto irrevocably (a) agree that any suit,
action or other legal proceeding arising out of or relating to this Mortgage may
be brought in a court of record in the State or in the courts of the United
States of America located in such State, (b) consent to the non-exclusive
jurisdiction of each such court in any suit, action or proceeding, and (c) waive
any objection which it may have to the laying of venue of any such suit, action
or proceeding in any of such courts and any claim that any such suit, action or
proceeding has been brought in an inconvenient forum. If any clauses or
provisions herein contained operate, or would prospectively operate, to
invalidate this Mortgage, then such clauses or provisions only shall be held for
naught, as though not herein contained, and the remainder of this Mortgage shall
remain operative and in full force and effect.
45. RIGHTS OF LENDER CUMULATIVE. The rights of Lender arising
under the terms, covenants, conditions and agreements contained in this Mortgage
shall be separate, distinct and cumulative, and none of them shall be in
exclusion of the others. No act of Lender shall be construed as an election to
proceed under any one provision herein to the exclusion of any other provisions,
anything herein or otherwise to the contrary notwithstanding. If Borrower is
comprised of more than one person or entity, then the liability of each such
person and entity hereunder shall be joint and several.
Xxxxx, Xxxxxxxx
00
00. MODIFICATIONS. This Mortgage cannot be changed, altered,
amended or modified except by an agreement in writing and in recordable form,
executed by both Borrower and Lender.
47. EXCULPATION. Notwithstanding anything contained herein to the
contrary, the liability of Borrower is subject to the limited recourse
provisions contained in the Exculpation section of the Note, which are
incorporated herein and made a part hereof by reference as if fully set forth
herein.
48. FULL RECOURSE. Notwithstanding any provisions in this Mortgage
to the contrary, including without limitation the provisions set forth in the
section captioned "Exculpation" hereinabove, Borrower shall be personally
liable, jointly and severally, for the entire Loan secured by this Mortgage
(including all principal, interest and other charges) in the event (a) Borrower
violates the covenant governing the placing of subordinate financing on the
Property as set forth in this Mortgage; (b) Borrower violates the covenant
restricting transfers of interests in the Property or transfers of ownership
interests in Borrower as set forth in this Mortgage; or (c) Borrower or any
guarantor violates the provisions of Section 22 of this Mortgage, or there is
filed against Borrower or any guarantor or indemnitor of the Loan, a petition in
bankruptcy or for the appointment of a receiver, or there commences under any
bankruptcy or insolvency law, proceedings for Borrower's relief, or for the
compromise, extension, arrangement or adjustment of Borrower's obligations which
is not dismissed within thirty (30) days after the filing of same.
49. LENDER IS NOT A JOINT VENTURER OR PARTNER. Borrower and Lender
acknowledge and agree that in no event shall Lender be deemed to be a partner or
joint venturer with Borrower or any member of Borrower. Without limitation of
the foregoing, Lender shall not be deemed to be a partner or joint venturer on
account of its becoming a mortgagee in possession or exercising any rights
pursuant to this Mortgage or pursuant to any other instrument or document
evidencing or securing any of the indebtedness secured hereby, or otherwise.
50. CAPTIONS. The captions set forth at the beginning of the
various Sections of this Mortgage are for convenience only, and shall not be
used to interpret or construe the provisions of this Mortgage.
51. SPLITTING OF MORTGAGE. This Mortgage and the Note shall, at
any time until the same shall be fully paid and satisfied, at the sole election
of Lender, be split or divided into two or more notes and two or more security
instruments, each of which shall cover all or a portion of the Property to be
more particularly described therein. To that end, Borrower, upon written request
of Lender, shall execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered by the then owner of the Property, to Lender and/or
its designee or designees substitute notes and security instruments in such
principal amounts,
Omaha, Nebraska
43
aggregating not more than the then unpaid principal amount of Loan, and
containing terms, provisions and clauses similar to those contained herein and
in the Note, and such other documents and instruments as may be required by
Lender.
52. REPLACEMENT DOCUMENTS. Upon receipt of an affidavit of an
officer of Lender as to the loss, theft, destruction or mutilation of the Note
or any other Loan Document which is not of public record, and, in the case of
any such mutilation, upon surrender and cancellation of such Note or other Loan
Document, Borrower, at its expense, will issue, in lieu thereof, a replacement
Note or other Loan Document, dated the date of such lost, stolen, destroyed or
mutilated Note or other Loan Document in the same principal amount thereof and
otherwise of like tenor.
53. SOLE DISCRETION OF LENDER. Wherever pursuant to this Mortgage
Lender exercises any right given to it to approve or disapprove, or any
arrangement or term is to be satisfactory to Lender, the decision of Lender to
approve or disapprove or to decide that arrangements or terms are satisfactory
or not satisfactory shall be in the sole discretion of Lender and shall be final
and conclusive, except as may be otherwise expressly and specifically provided
herein.
54. TRANSFER OF LOAN.
(a) Lender may, at any time, sell, transfer or assign the
Note, this Mortgage, the Assignment and the other Loan Documents, and any or all
servicing rights with respect thereto, or grant participations therein or issue
mortgage pass-through certificates or other securities evidencing a beneficial
interest in a rated or unrated public offering or private placement (the
"SECURITIES"), or otherwise sell the Loan or an interest therein (a "SECONDARY
MARKET TRANSACTION"). Lender may forward to each purchaser, transferee,
assignee, servicer, participant, investor in such Securities or in connection
with a Secondary Market Transaction or any Rating Agency rating such Securities
(collectively, the "INVESTOR") and each prospective Investor, all documents and
information which Lender now has or may hereafter acquire relating to the Loan
and to Borrower, any Guarantor and the Property, whether furnished by Borrower,
any Guarantor or otherwise, as Lender determines necessary or desirable.
Borrower acknowledges that certain information regarding the Loan and the
parties thereto and the Property may be included in a private placement
memorandum, prospectus or other disclosure documents. The term "RATING AGENCY"
shall mean each statistical rating agency that has assigned a rating to the
Securities.
(b) Borrower shall cooperate in good faith with Lender in
effecting any such Secondary Market Transaction and shall cooperate in good
faith to implement all requirements reasonably imposed by the participants
involved in any Secondary Market Transaction (including without limitation, a
Rating Agency and/or an Investor) including, without limitation, all structural
or other changes to the Loan, modifications to any documents
Omaha, Nebraska
44
evidencing or securing the Loan, delivery of opinions of counsel acceptable to
the Rating Agency or such Investors and addressing such matters as the Rating
Agency or such Investors may require; provided, however, that the Borrower shall
not be required to modify any documents evidencing or securing the Loan which
would modify (i) the interest rate payable under the Note, (ii) the stated
maturity of the Note, (iii) the amortization of principal of the Note, or (iv)
any other material terms or covenants of the Loan.
(c) If Securities are issued in connection with the Loan
or a Secondary Market Transaction occurs with respect to the Loan, all Funds
held by Lender in escrow or pursuant to reserves in accordance with the Loan
Documents shall be deposited in "eligible accounts" at "eligible institutions"
and invested in "permitted investments" as then defined and required by any
Rating Agency.
55. COUNTERPARTS. This Mortgage may be executed in
several counterparts each of which when executed and delivered is an original,
but all of which together shall constitute one instrument.
56. SPECIAL STATE OF NEBRASKA PROVISIONS
In the event of any inconsistencies between the terms and conditions of
this Article 56 and the other provisions of this Mortgage, the terms of this
Article 56 shall control and be binding.
(a) APPOINTMENT OF SUCCESSOR TRUSTEE. Lender may, from
time to time, by a written instrument executed and acknowledged by Lender,
mailed to Borrower and recorded in the county in which the Real Property is
located and by otherwise complying with the provisions of the applicable law of
the State of Nebraska, substitute a successor or successors to the Trustee named
herein or acting hereunder.
(b) REQUESTS FOR NOTICE. Borrower hereby requests a copy
of any Notice of Default and any Notice of Sale hereunder be mailed to Borrower
at Borrower's address set forth in the Section 43 of this Mortgage. While hereby
expressly reserving the priority of this Mortgage as established by law, Trustee
and Lender hereunder request that a copy of any Notice of Default and any Notice
of Sale under any deed of trust recorded against the Property either prior to,
or subsequent to the date this Mortgage is recorded be mailed to each at the
addresses set forth in Section 43 of this Mortgage.
(c) FORECLOSURE BY POWER OF SALE. Should Lender elect to
foreclose by exercise of the Power of Sale herein contained, Lender shall notify
Trustee and shall deposit with Trustee this Mortgage and the Note and such
receipts and evidence of expenditures made and secured hereby as Trustee may
require. Thereafter, and only in accordance with or as permitted by the Nebraska
Trust Deeds Act:
Omaha, Nebraska
45
(1) upon receipt of such notice from Lender,
Trustee shall cause to be recorded, published and delivered to Trustor
such Notice of Default and Notice of Sale and any other notice or
document or instrument as then required by law and/or by this Deed of
Trust. Trustee shall, without demand on Borrower, after such time as
may then be required by law and after recordation and/or delivery of
such Notice of Default, Notice of Sale and/or any other notice required
by law, sell the Property at the time and place of sale fixed by it in
such Notice of Sale, either as a whole, or in separate lots or parcels
or items as Trustee shall deem expedient, and in such order as Trustee
may determine, at public auction to the highest bidder for cash in
lawful money of the United States payable at the time of sale. Trustee
shall deliver to such purchaser or purchasers thereof a good and
sufficient deed or deeds conveying the property so sold, but without
any covenant or warranty, express or implied. Any person, including,
without limitation, Lender (but specifically excluding the Borrower),
may purchase at such sale, and Borrower hereby covenants to warrant and
defend the title of such purchaser or purchasers; and
(2) after deducting all costs, fees and expenses
of Trustee and those allowed or permitted by the Loan Documents,
including attorneys fees and costs of evidence of title in connection
with sale, Trustee shall apply the proceeds of sale to payment of (i)
all sums expended under the terms hereof, not then repaid, (ii) all
other sums then secured hereby, and (iii) the remainder, if any, to the
person or persons legally entitled thereto; and
(3) Trustee may in the manner provided by law
postpone sale of all or any portion of the Property.
(d) RECONVEYANCE BY TRUSTEE. Upon written request of
Lender stating that all sums secured hereby have been paid, Trustee shall
reconvey to Borrower, or to the person or persons legally entitled thereto,
without warranty, any portion of the Property then held hereunder. The recitals
in such reconveyance of any matters or facts shall be conclusive proof of the
truthfulness thereof.
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Omaha, Nebraska
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IN WITNESS WHEREOF, Borrower has caused this Mortgage to be executed as
of the day and year first above written.
BORROWER:
OMAHA STORE NO. 166 L.L.C.,
a Delaware limited liability company
By: AGREE LIMITED PARTNERSHIP,
a Delaware limited partnership
Its Member
By: AGREE REALTY CORPORATION,
a Maryland corporation
Its General Partner
By: /s/ Xxxxxxx Agree
--------------------
Xxxxxxx Agree
President
STATE OF )
)
COUNTY OF )
The foregoing instrument was acknowledged before me this _____ day of
October, 2003, by XXXXXXX AGREE, President of Agree Realty Corporation, a
Maryland corporation, on behalf of the corporation as general partner of Agree
Limited Partnership, a Delaware partnership, as member of Omaha Store No. 166
L.L.C., a Delaware limited liability company.
------------------------------------------
Name:
------------------------------------
Notary Public
My Commission Expires:
-------------------
(SEAL)
Omaha, Nebraska
S-1
EXHIBIT A
(Legal Description)
Xxx 0, Xxxxxxxxx Xxxxxx 0, an addition to the City of Omaha, as surveyed,
platted and recorded in Xxxxxxx County, Nebraska; and
Xxx 0, Xxxxxxxxx Xxxxxx 0, an addition to the City of Omaha, as surveyed,
platted and recorded in Xxxxxxx County, Nebraska.
Omaha, Nebraska
A - 1
