UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
|
|
X |
QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 2006 |
|
|
o |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO |
COMMISSION FILE NUMBER: 000-51609
Inland American Real Estate Trust, Inc.
(Exact name of registrant as specified in its charter)
Maryland |
34-2019608 |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
2901 Butterfield Road, Oak Brook, Illinois |
60523 |
(Address of principal executive offices) |
(Zip Code) |
630-218-8000
(Registrants telephone number, including area code)
______________________________________________________
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to the filing requirements for the past 90 days.
Yes X No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of "accelerated filer and large accelerated filer" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o Accelerated filer o Non-accelerated filer X
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes o No X
As of October 27, 2006, there were 108,151,319 shares of common stock outstanding.
TABLE OF CONTENTS
|
Part I - Financial Information |
Page |
|
|
|
Item 1. |
Financial Statements |
|
|
|
|
|
Consolidated Balance Sheets at September 30, 2006 (unaudited) and December 31, 2005 (audited) |
1 |
|
|
|
|
Consolidated Statements of Operations and Other Comprehensive Income for the three and nine months ended September 30, 2006 and 2005 (unaudited) |
3 |
|
|
|
|
Consolidated Statement of Stockholders Equity for the nine months ended September 30, 2006 (unaudited) |
5 |
|
|
|
|
Consolidated Statements of Cash Flows for the nine months ended September 30, 2006 and 2005 (unaudited) |
6 |
|
|
|
|
Notes to Consolidated Financial Statements |
8 |
|
|
|
Item 2. |
Management's Discussion and Analysis of Financial Condition and Results of Operations |
25 |
|
|
|
Item 3. |
Quantitative and Qualitative Disclosures About Market Risk |
44 |
|
|
|
Item 4. |
Controls and Procedures |
45 |
|
|
|
|
Part II - Other Information |
|
|
|
|
Item 1. |
Legal Proceedings |
46 |
|
|
|
Item 1A. |
Risk Factors |
46 |
|
|
|
Item 2. |
Unregistered Sales of Equity Securities and Use of Proceeds |
46 |
|
|
|
Item 3. |
Defaults Upon Senior Securities |
47 |
|
|
|
Item 4. |
Submission of Matters to a Vote of Security Holders |
47 |
|
|
|
Item 5. |
Other Information |
47 |
|
|
|
Item 6. |
Exhibits |
47 |
|
|
|
|
SIGNATURES |
54 |
|
|
|
-i-
PART I - Financial Information
Item 1. Financial Statements
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Consolidated Balance Sheets
(Dollar amounts in thousands)
Assets
|
|
September 30, 2006 |
|
December 31, 2005 |
|
|
(unaudited) |
|
(audited) |
Investment properties: |
|
|
|
|
Land |
$ |
239,541 |
$ |
101,144 |
Building and other improvements |
|
1,345,458 |
|
609,362 |
|
|
|
|
|
|
|
1,584,999 |
|
710,506 |
Less accumulated depreciation |
|
(25,900) |
|
(2,751) |
|
|
|
|
|
Net investment properties |
|
1,559,099 |
|
707,755 |
|
|
|
|
|
Cash and cash equivalents (including cash held by management company of $2,154 and $7,329 as of September 30, 2006 and December 31, 2005, respectively) |
|
355,909 |
|
37,129 |
Restricted cash |
|
29,195 |
|
8,626 |
Restricted escrows |
|
28,945 |
|
30,708 |
Investments in marketable securities |
|
148,933 |
|
28,614 |
Accounts and rents receivable |
|
9,321 |
|
1,100 |
Note receivable (Note 4) |
|
41,477 |
|
- |
Due from related parties (Note 3) |
|
- |
|
451 |
Acquired in-place lease intangibles (net of accumulated amortization of $7,976 and $698 as of September 30, 2006 and December 31, 2005, respectively) |
|
146,601 |
|
45,621 |
Acquired above market lease intangibles (net of accumulated amortization of $229 and $9 as of September 30, 2006 and December 31, 2005, respectively) |
|
5,984 |
|
244 |
Loan fees and loan fee deposits (net of accumulated amortization of $341 and $9 as of September 30, 2006 and December 31, 2005, respectively) |
|
15,713 |
|
3,535 |
Other assets |
|
12,012 |
|
2,068 |
|
|
|
|
|
Total assets |
$ |
2,353,189 |
$ |
865,851 |
The accompanying notes are an integral part of the consolidated financial statements.
-1-
INLAND AMERICAN REAL ESTATE TRUST, INC.
(A Maryland Corporation)
Consolidated Balance Sheets
(continued)
(Dollar amounts in thousands)
Liabilities and Stockholders Equity
|
|
September 30, 2006 |
|
December 31, 2005 |
Liabilities: |
|
(unaudited) |
|
(audited) |
Mortgages and margins payable (Note 8) |
$ |
835,411 |
$ |
227,654 |
Accounts payable |
|
1,802 |
|
1,381 |
Accrued offering costs to related parties |
|
1,657 |
|
292 |
Accrued offering costs to non-related parties |
|
451 |
|
321 |
Accrued interest payable |
|
911 |
|
862 |
Tenant improvement payable |
|
3,985 |
|
789 |
Accrued real estate taxes |
|
8,226 |
|
1,601 |
Distributions payable |
|
4,464 |
|
315 |
Security deposits |
|
1,376 |
|
669 |
Prepaid rental and recovery income and other liabilities |
|
13,377 |
|
5,639 |
Advances from sponsor |
|
- |
|
3,081 |
Acquired below market lease intangibles (net of accumulated amortization of $868 and $34 as of September 30, 2006 and December 31, 2005, respectively) |
|
17,043 |
|
3,059 |
Restricted cash liability |
|
29,195 |
|
8,626 |
Other financings (Note 1) |
|
47,762 |
|
- |
Due to related parties (Note 3) |
|
1,939 |
|
10,756 |
Deferred income tax liability (Note 10) |
|
1,558 |
|
- |
|
|
|
|
|
Total liabilities |
|
969,157 |
|
265,045 |
|
|
|
|
|
Minority interest |
|
552,902 |
|
515,721 |
|
|
|
|
|
Stockholders' equity: |
|
|
|
|
Preferred stock, $.001 par value, 40,000,000 shares authorized, none outstanding |
|
- |
|
- |
Common stock, $.001 par value, 1,460,000,000 shares authorized, 94,836,131 and 9,873,834 shares issued and outstanding as of September 30, 2006 and December 31, 2005, respectively |
|
95 |
|
10 |
Additional paid in capital (net of offering costs of $101,681 and $13,147 as of September 30, 2006 and December 31, 2005, of which $90,294 and $7,663 was paid or accrued to affiliates as of
|
|
847,033 |
|
86,410 |
Accumulated distributions in excess of net loss |
|
(24,764) |
|
(1,835) |
Accumulated other comprehensive income |
|
8,766 |
|
500 |
|
|
|
|
|
Total stockholders equity |
|
831,130 |
|
85,085 |
|
|
|
|
|
Commitments and contingencies (Note 13) |
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity |
$ |
2,353,189 |
|
865,851 |
The accompanying notes are an integral part of the consolidated financial statements.
-2-
INLAND AMERICAN REAL ESTATE TRUST, INC.
(A Maryland Corporation)
Consolidated Statements of Operations and Other Comprehensive Income
(Dollar amounts in thousands, except per share amounts)
(unaudited)
|
|
Three months |
|
Three months |
|
Nine months |
|
Nine months |
|
|
ended |
|
ended |
|
Ended |
|
ended |
|
|
September 30, |
|
September 30, |
|
September 30, |
|
September 30, |
|
|
2006 |
|
2005 |
|
2006 |
|
2005 |
|
|
(unaudited) |
|
(unaudited) |
|
(unaudited) |
|
(unaudited) |
Income: |
|
|
|
|
|
|
|
|
Rental income |
$ |
28,047 |
$ |
- |
$ |
62,069 |
$ |
- |
Tenant recovery income |
|
6,382 |
|
- |
|
11,040 |
|
- |
Other property income |
|
698 |
|
- |
|
845 |
|
- |
|
|
|
|
|
|
|
|
|
Total income |
|
35,127 |
|
- |
|
73,954 |
|
- |
|
|
|
|
|
|
|
|
|
Expenses: |
|
|
|
|
|
|
|
|
General and administrative expenses to related parties |
|
811 |
|
- |
|
1,977 |
|
- |
General and administrative expenses to non-related parties |
|
485 |
|
48 |
|
1,835 |
|
115 |
Property operating expenses to related parties |
|
1,466 |
|
- |
|
2,946 |
|
- |
Property operating expenses to non-related parties |
|
4,833 |
|
- |
|
7,521 |
|
- |
Real estate taxes |
|
3,319 |
|
- |
|
6,273 |
|
- |
Depreciation and amortization |
|
13,546 |
|
- |
|
30,495 |
|
- |
Business manager management fee |
|
1,200 |
|
- |
|
1,200 |
|
- |
|
|
|
|
|
|
|
|
|
Total expenses |
|
25,660 |
|
(48) |
|
52,247 |
|
115 |
|
|
|
|
|
|
|
|
|
Operating income (loss) |
$ |
9,467 |
$ |
(48) |
$ |
21,707 |
$ |
(115) |
|
|
|
|
|
|
|
|
|
Interest and dividend income |
|
6,635 |
|
- |
|
14,054 |
|
- |
Other income (expense) (Note 9) |
|
(388) |
|
- |
|
227 |
|
- |
Interest expense |
|
(9,566) |
|
- |
|
(18,814) |
|
- |
Realized gain on securities |
|
1,351 |
|
- |
|
1,973 |
|
- |
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes and minority interest |
$ |
7,499 |
$ |
(48) |
$ |
19,147 |
$ |
(115) |
|
|
|
|
|
|
|
|
|
Income tax benefit (expense ) (Note 10) |
|
104 |
|
- |
|
(1,558) |
|
- |
Minority interest (Note 9) |
|
(6,687) |
|
- |
|
(19,119) |
|
- |
|
|
|
|
|
|
|
|
|
Net income (loss) applicable to common shares |
$ |
916 |
$ |
(48) |
$ |
(1,530) |
$ |
(115) |
The accompanying notes are an integral part of the consolidated financial statements.
-3-
INLAND AMERICAN REAL ESTATE TRUST, INC.
(A Maryland Corporation)
Consolidated Statements of Operations and Other Comprehensive Income
(Dollar amounts in thousands, except per share amounts)
(unaudited)
|
|
Three months |
|
Three months |
|
Nine months |
|
Nine months |
|
|
ended |
|
ended |
|
Ended |
|
ended |
|
|
September 30, |
|
September 30, |
|
September 30, |
|
September 30, |
|
|
2006 |
|
2005 |
|
2006 |
|
2005 |
|
|
(unaudited) |
|
(unaudited) |
|
(unaudited) |
|
(unaudited) |
|
|
|
|
|
|
|
|
|
Other comprehensive income: |
|
|
|
|
|
|
|
|
Unrealized gain on investment securities |
|
8,507 |
|
- |
|
8,266 |
|
- |
|
|
|
|
|
|
|
|
|
Comprehensive income (loss) |
$ |
9,423 |
$ |
(48) |
$ |
6,736 |
$ |
(115) |
|
|
|
|
|
|
|
|
|
Net income (loss) available to common stockholders per common share, basic and diluted |
$ |
.01 |
$ |
(2.39) |
$ |
(.03) |
$ |
(5.78) |
Weighted average number of common shares outstanding, basic and diluted |
|
76,848,460 |
|
20,000 |
|
47,631,587 |
|
20,000 |
The accompanying notes are an integral part of the consolidated financial statements.
-4-
INLAND AMERICAN REAL ESTATE TRUST, INC.
(A Maryland Corporation)
Consolidated Statement of Stockholders Equity
For the nine month period ended September 30, 2006
(Dollar amounts in thousands)
(unaudited)
|
Number of Shares |
|
Common
|
|
Additional Paid-in
|
|
Accumulated
|
|
Accumulated Other Comprehensive Income |
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2005 |
9,873,834 |
|
10 |
|
86,410 |
|
(1,835) |
|
500 |
|
85,085 |
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
- |
|
- |
|
- |
|
(1,530) |
|
- |
|
(1,530) |
Unrealized gain on investment securities |
- |
|
- |
|
- |
|
- |
|
8,266 |
|
8,266 |
|
|
|
|
|
|
|
|
|
|
|
|
Distributions declared |
- |
|
- |
|
- |
|
(21,399) |
|
- |
|
(21,399) |
Proceeds from offering |
83,809,663 |
|
84 |
|
838,062 |
|
- |
|
- |
|
838,146 |
Offering costs |
- |
|
- |
|
(88,534) |
|
- |
|
- |
|
(88,534) |
Proceeds from distribution reinvestment program |
1,152,634 |
|
1 |
|
10,950 |
|
- |
|
- |
|
10,951 |
Issuance of stock options and discounts on shares issued to affiliates |
- |
|
- |
|
145 |
|
- |
|
- |
|
145 |
|
|
|
|
|
|
|
|
|
|
|
|
Balance at September 30, 2006 |
94,836,131 |
|
95 |
|
847,033 |
|
(24,764) |
|
8,766 |
|
831,130 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of the consolidated financial statements.
-5-
INLAND AMERICAN REAL ESTATE TRUST, INC.
(A Maryland Corporation)
Consolidated Statements of Cash Flows
(Dollar amounts in thousands)
(unaudited)
The accompanying notes are an integral part of the consolidated financial statements.
-6-
INLAND AMERICAN REAL ESTATE TRUST, INC.
(A Maryland Corporation)
Consolidated
Statements of Cash Flows
(Dollar amounts in thousands)
(continued)
(unaudited)
The accompanying notes are an integral part of the consolidated financial statements.
-7-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
September 30, 2006
(unaudited)
(Dollar amounts in thousands, except per share amounts)
The accompanying Consolidated Financial Statements have been prepared in accordance with U.S. generally accepted accounting principles ("GAAP") for interim financial information and with instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by GAAP for complete financial statements. Readers of this Quarterly Report should refer to the audited consolidated financial statements of Inland American Real Estate Trust, Inc. for the year ended December 31, 2005, which are included in the Company's 2005 Annual Report on Form 10-K, as certain footnote disclosures contained in such audited consolidated financial statements have been omitted from this Report. In the opinion of management, all adjustments (consisting or normal recurring accruals) necessary for a fair presentation have been included in this Quarterly Report.
(1) Organization and Basis of Accounting
Inland American Real Estate Trust, Inc. (the "Company") was formed on October 4, 2004 (inception) to acquire and manage a diversified portfolio of commercial real estate, primarily retail properties and multi-family, office and industrial buildings, located in the United States and Canada. The Business Management Agreement (the "Agreement") appoints Inland American Business Manager & Advisor, Inc. (the "Business Manager"), an affiliate of the Sponsor, to be the Business Manager to the Company. On August 31, 2005, the Company commenced an initial public offering (the Offering) of up to 500,000,000 shares of common stock ("Shares") at $10.00 each and up to 40,000,000 shares at $9.50 each, which may be distributed pursuant to the Company's distribution reinvestment plan.
The Company qualified as a real estate investment trust ("REIT") under the Internal Revenue Code of 1986, as amended, for federal income tax purposes commencing with the tax year ended December 31, 2005. So long as the Company qualifies for treatment as a REIT, the Company generally will not be subject to federal income tax to the extent it distributes 90% of its REIT taxable income to its stockholders. If the Company fails to qualify as a REIT in any taxable year, the Company will be subject to federal income tax on its taxable income at regular corporate tax rates. Even if the Company qualifies for taxation as a REIT, the Company may be subject to certain state and local taxes on its income and property and federal income and excise taxes on its undistributed income.
The accompanying Consolidated Financial Statements include the accounts of the Company, as well as all wholly owned subsidiaries and consolidated joint venture investments. Wholly owned subsidiaries generally consist of limited liability companies (LLC's) and limited partnerships (LP's). The effects of all significant intercompany transactions have been eliminated.
The Company has ownership interests of 67% to 75% in LLC's which own nine shopping centers. These entities are considered VIE's as defined in FIN 46(R) and the Company is considered the primary beneficiary of each LLC. Therefore, these entities are consolidated by the Company. The LLC agreements contain a put/call provision which grants the right to the outside owners and the Company to require the LLC's to redeem the ownership interests of the outside owners during future periods. These put/call agreements are embedded in the LLC agreement and are accounted for in accordance with EITF 00-04 "Majority Owner's Accounting for a Transaction in the Shares of a Consolidated Subsidiary and a Derivative Indexed to the Minority Interest in that Subsidiary." Since the outside ownership interests are subject to a put/call arrangement requiring settlement for a fixed amount, the LLC's are treated as 100% owned subsidiaries by the Company with the amount due the outside owners reflected as a financing and included within other financings in the accompanying Consolidated Financial Statements. Interest expense is recorded on the liability in an amount generally equal to the preferred return due to the outside owners as provided in the LLC agreements.
-8-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
The Company has an ownership interest in Minto Builders (Florida), Inc. ("MB REIT"). The Company has the direct ability to make major decisions for MB REIT and therefore this entity is consolidated by the Company and the outside ownership interests are reflected as minority interests in the accompanying Consolidated Financial Statements. (See Note 9)
A put/call agreement that was entered into by us and MB REIT as a part of the MB REIT transaction on October 11, 2005 grants Minto (Delaware), LLC, referred to herein as MD, certain redemption rights. The agreement is considered a free standing financial instrument and is accounted for pursuant to Statement of Financial Accounting Standard No. 150 Accounting for Certain Financial Instruments with Characteristics of Both Liabilities and Equity" ("Statement 150") and Statement of Financial Accounting Standards No. 133 Accounting for Derivative Financial Instruments and Hedging Activities (Statement 133). Derivatives, whether designated in hedging relationships or not, are recorded on the balance sheet at fair value. If the derivative is designated as a fair value hedge, the changes in the fair value of the derivative and of the hedged item attributable to the hedged risk are recognized in earnings. This derivative was not designated as a hedge.
(2) Summary of Significant Accounting Policies
The accompanying Consolidated Financial Statements have been prepared in accordance with GAAP and require management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting periods. Actual results could differ from those estimates.
Certain reclassifications were made to the 2005 financial statements to conform to the 2006 presentations.
In accordance with SFAS No. 144, the Company performs an analysis to identify impairment indicators to ensure that the investment property's carrying value does not exceed its fair value. The valuation analysis performed by the Company is based upon many factors which require difficult, complex or subjective judgments to be made. Such assumptions include projecting vacancy rates, rental rates, operating expenses, lease terms, tenant financial strength, economy, demographics, property location, capital expenditures and sales value among other assumptions to be made upon valuing each property. This valuation is sensitive to the actual results of any of these uncertain factors, either individually or taken as a whole. Based upon the Company's judgment, no impairment was warranted as of September 30, 2006.
-9-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
The application of the SFAS Nos. 141 and 142 resulted in the recognition upon acquisition of additional intangible assets and liabilities relating to real estate acquisitions during the nine months ended September 30, 2006. The portion of the purchase price allocated to acquired above market lease costs and acquired below market lease costs are amortized on a straight line basis over the life of the related lease as an adjustment to rental income and over the respective renewal period for below market lease costs with fixed rate renewals. Amortization pertaining to the above market lease costs of $220 was applied as a reduction to rental income for the nine months ended September 30, 2006. Amortization pertaining to the below market lease costs of $834 was applied as an increase to rental income for the nine months ended September 30, 2006.
The portion of the purchase price allocated to acquired in-place lease intangibles is amortized on a straight line basis over the life of the related lease. The Company incurred amortization expense pertaining to acquired in-place lease intangibles of $7,278 for the nine months ended September 30, 2006.
The following table presents the amortization during the next five years related to the acquired in-place lease intangibles, acquired above market lease costs and the below market lease costs for properties owned at September 30, 2006.
|
|
|
|
|
|
|
|
Amortization of: |
|
2006 (1) |
2007 |
2008 |
2009 |
2010 |
Thereafter |
|
|
|
|
|
|
|
|
Acquired above |
|
|
|
|
|
|
|
market lease costs |
$ |
(315) |
(1,261) |
(977) |
(769) |
(740) |
(1,922) |
|
|
|
|
|
|
|
|
Acquired below |
|
|
|
|
|
|
|
market lease costs |
|
574 |
2,273 |
2,188 |
2,020 |
1,774 |
8,214 |
|
|
|
|
|
|
|
|
Net rental income |
|
|
|
|
|
|
|
Increase |
$ |
259 |
1,012 |
1,211 |
1,251 |
1,034 |
6,292 |
|
|
|
|
|
|
|
|
Acquired in-place lease |
|
|
|
|
|
|
|
Intangibles |
$ |
5,213 |
19,543 |
18,921 |
18,474 |
18,284 |
66,166 |
(1)
For the three month period from October 1, 2006 through December 31, 2006.
-10-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
Concentration of credit risk with respect to accounts receivable is limited due to the large number of tenants comprising the Company's rental revenue. One tenant, SBC, accounted for 28% of consolidated rental revenues for the nine months ended September 30, 2006. This concentration of revenues by one tenant increases the Company's risk associated with nonpayment by this tenant. In an effort to reduce risk, the Company performs ongoing credit evaluations of its larger tenants.
The estimated fair value of the Company's mortgage debt is $754,845 as of September 30, 2006. The Company estimates the fair value of its mortgages payable by discounting the future cash flows of each instrument at rates currently offered to the Company for similar debt instruments of comparable maturities by the Company's lenders. The carrying amount of the Company's other financial instruments approximate fair value because of the relatively short maturity of these instruments.
The Company applies the fair value method of accounting as prescribed by SFAS No. 123(R), Share-Based Payment for its stock options granted. Under this method, the Company reports the value of granted options as a charge against earnings ratably over the vesting period.
Income taxes for certain state and local taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to difference between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carry forwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in earnings in the period that includes the enactment date.
The application of Interpretation No. 47 (FIN 47), Accounting for Conditional Asset Retirement Obligations, which is an interpretation of FASB Statement No. 143 resulted in the recognition upon acquisition of additional real estate assets and liabilities of $8,919, which is recorded in building and other improvements and prepaid rental and recovery income and other liabilities on the balance sheet. FIN 47 refers to a legal obligation to perform an asset retirement activity in which the timing and/or method of settlement are conditional on a future event that may or may not be within the control of the entity. An entity is required to recognize a liability for the fair value of a conditional asset retirement obligation if the fair value of the liability can be reasonably estimated. The fair value of a liability for the conditional asset retirement obligation should be recognized when incurred, generally upon acquisition, construction, or development and through the normal operation of the asset. For the three and nine months ended September 30, 2006, the Company recognized $71 of expense related to the accretion of the asset retirement obligation which is recorded in property operating expenses to non-related parties.
In June 2005, the FASB ratified the EITF's consensus on Issue No. 04-5 Determining Whether a General Partner, or the General Partners as a Group, Controls a Limited Partnership or Similar Entity When the Limited Partners Have Certain Rights. This consensus established the presumption that general partners in a limited partnership control that limited partnership regardless of the extent of the general partners' ownership interest in the limited partnership. The consensus further establishes that the rights of the limited partners can overcome the presumption of control by the general partners, if the limited partners have either (a) the substantive ability to dissolve (liquidate) the limited partnership or otherwise remove the general partners without cause or (b) substantive participating rights. Whether the presumption of control is overcome is a matter of judgment based on the facts and circumstances, for which the consensus provides additional guidance. This consensus is currently applicable to the Company for all partnerships. This consensus applies to limited partnerships or similar entities, such as limited liability companies that have governing provisions that are the functional equivalent of a limited partnership.
-11-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
In September 2006, the SEC's staff issued Staff Accounting Bulletin (SAB) No. 108 "Considering the Effects of Prior Year Misstatements when Quantifying Misstatements in Current Year Financial Statements." This Bulletin provides guidance on the consideration of the effects of prior year misstatements in quantifying current year misstatements for the purpose of a materiality assessment. The guidance in this Bulletin must be applied to financial reports covering the first fiscal year ending after November 15, 2006. We do not believe that implementing the guidance in this Bulletin will have a material effect on our 2006 annual financial statements.
In June 2006, the FASB issued Interpretation No. 48, "Uncertainty in Income Taxes - an interpretation of FASB Statement No. 109." This Interpretation defines a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. The Interpretation also provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure, and transition. This Interpretation is effective for fiscal years beginning after December 15, 2006. We do not believe that implementing the guidance in this Interpretation will have a material effect on our 2006 annual financial statements.
(3) Transactions with Related Parties
As of September 30, 2006 and December 31, 2005, the Company had incurred $101,681 and $13,147 of Offering costs, respectively, of which $90,294 and $7,663 was paid or accrued to related parties. In accordance with the terms of the Offering, the Business Manager has guaranteed payment of all offering expenses (excluding sales commissions and the marketing contribution and the due diligence expense allowance) in excess of 4.5% of the gross proceeds of the Offering or all organization and offering expenses (including selling commissions) which together exceed 15% of gross offering proceeds. As of September 30, 2006 and December 31, 2005, offering costs did not exceed the 4.5% and 15% limitations. The Company anticipates that these costs will not exceed these limitations upon completion of the Offering. Any excess amounts at the completion of the Offering will be reimbursed by the Business Manager.
The Business Manager and its related parties are entitled to reimbursement for salaries and expenses of employees of the Business Manager and its related parties relating to the Offering. In addition, a related party of the Business Manager is entitled to receive selling commissions, and the marketing contribution and due diligence expense allowance from the Company in connection with the Offering. Such costs are offset against the stockholders' equity accounts. Such costs totaled $32,764 and $80,736 for the three and nine months ended September 30, 2006, respectively, of which $1,657 was unpaid as of September 30, 2006.
The Business Manager and its related parties are entitled to reimbursement for general and administrative expenses of the Business Manager and its related parties relating to the Company's administration. Such costs are included in general and administrative expenses to related parties, professional services to related parties, and acquisition cost expenses to related parties, in addition to costs that were capitalized pertaining to property acquisitions. For the three and nine months ended September 30, 2006, the Company incurred $1,355 and $2,940 of these costs, respectively, of which $418 remained unpaid as of September 30, 2006.
A related party of the Business Manager provides loan servicing to the Company for an annual fee. Such costs are included in property operating expenses to related parties. The agreement allows for annual fees totaling .03% of the first billion in mortgage balance outstanding and .01% of the remaining mortgage balance, payable monthly. For the three and nine months ended September 30, 2006, these fees totaled $18 and $30, respectively. None remained unpaid as of September 30, 2006.
-12-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
The Company pays a related party of the Business Manager a fee equal to .2% of the principal amount of each loan placed for the Company. Such amounts are capitalized as loan fees and amortized over the respective loan term. For the three and nine months ended September 30, 2006, the Company paid loan fees totaling $685 and $1,186, respectively, to this related party. None remained unpaid as of September 30, 2006.
After the Company's stockholders have received a non-cumulative, non-compounded return of five percent (5.0%) per annum on their invested capital, the Company will pay its Business Manager an annual business management fee of up to one percent (1.0%) of the average invested assets, payable quarterly in an amount equal to one-quarter of one percent (0.25%) of the average invested assets as of the last day of the immediately preceding quarter. For these purposes, invested capital means the original issue price paid for the shares of the common stock reduced by prior distributions from the sale or financing of properties. For these purposes, average invested assets means, for any period, the average of the aggregate book value of assets, including lease intangibles, invested, directly or indirectly, in financial instruments, debt and equity securities and equity interests in and loans secured by real estate assets, including amounts invested in REITs and other real estate operating companies, before reserves for depreciation or bad debts or other similar non-cash reserves, computed by taking the average of these values at the end of each month during the period. The Company will pay this fee for services provided or arranged by the Business Manager, such as managing day-to-day business operations, arranging for the ancillary services provided by other related parties and overseeing these services, administering bookkeeping and accounting functions, consulting with the board, overseeing real estate assets and providing other services as the board deems appropriate. This fee terminates if the Company acquires the Business Manager. Separate and distinct from any business management fee, the Company also reimburses the Business Manager or any related party for all expenses that it, or any related party including the sponsor, pays or incurs on its behalf including the salaries and benefits of persons employed by the Business Manager or its related parties and performing services for the Company except for the salaries and benefits of persons who also serve as one of the executive officers or as an executive officer of the Business Manager. For any year in which the Company qualifies as a REIT, its Business Manager must reimburse the Company for the amounts, if any, by which the total operating expenses paid during the previous fiscal year exceed the greater of: two percent (2.0%) of the average invested assets for that fiscal year; or twenty-five percent (25.0%) of net income for that fiscal year, subject to certain adjustments described herein. For these purposes, items such as organization and offering expenses, property expenses, interest payments, taxes, non-cash charges, any incentive fees payable to the Business Manager and acquisition fees and expenses are excluded from the definition of total operating expenses. The Company incurred fees of $1,200 for the three months ended September 30, 2006, all of which remained unpaid as of September 30, 2006. The Business Manager has agreed to waive all fees allowed but not taken, except for the $1,200, for the nine months ended September 30, 2006.
The property manager, an entity owned principally by individuals who are related parties of the Business Manager, is entitled to receive property management fees totaling 4.5% of gross income, for management and leasing services. The Company incurred and paid property management fees of $1,466 and $2,946, respectively, and has been recorded in property operating expenses to related parties for the three and nine months ended September 30, 2006. None remained unpaid as of September 30, 2006.
The Company has entered into a fee arrangement with Inland Western Retail Real Estate Trust, Inc., ("Inland Western") whereby Inland Western is paid for guarantying customary non-recourse carve out provisions of the Companys financings until such time as the Company reaches a net worth of $300,000 and the lender releases the guaranty. The fee arrangement calls for a fee of $50 annually for loans equal to and in excess of $50,000 and $25 annually for loans less than $50,000. The Company incurred fees totaling $44 and $134, respectively, for the three and nine months ended September 30, 2006. All fees had been paid to Inland Western as of September 30, 2006. On September 30, 2006, five of the six remaining guarantees were released by the lenders.
-13-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
Inland Western has invested $264,003 and $224,003 in MB REIT in series C preferred shares as of September 30, 2006 and December 31, 2005, respectively.
The Company established a discount stock purchase policy for related parties and related parties of the Business Manager that enables the related parties to purchase shares of common stock at either $8.95 or $9.50 a share depending on when the shares are purchased. The Company sold 49,608 and 160,416 shares to related parties and recognized an expense related to these discounts of $37 and $141, respectively, for the three and nine months ended September 30, 2006.
The Company retains a related party of the Business Manager to manage the Company's portfolio of marketable securities. The Company incurred fees to this entity totaling $257 and $565, respectively, during the three and nine months ended September 30, 2006, of which $87 was unpaid as of September 30, 2006.
As of September 30, 2006 the Company was repaid funds from related parties in the amount of $451 which was due from related parties for costs paid by the Company on their behalf.
The Company entered into an agreement with a limited liability company formed as an insurance association captive, which is wholly owned by three other related parties, Inland Real Estate Corporation, Inland Retail Real Estate Trust, Inc. and Inland Western Retail Real Estate Trust, Inc. and serviced by a related party, Inland Risk and Insurance Management Services Inc. The Company became a member of the limited liability company (L.L.C.) on October 1, 2006. The L.L.C. was formed to initially insure/reimburse the members' deductible obligations for the first $100 of property insurance and $100 of general liability insurance. The Company entered into the L.L.C. to stabilize its insurance costs, manage its exposures and recoup expenses through the functions of the captive program. The L.L.C. will be capitalized with $750 in cash, of which the Company's initial contribution will be $188.
(4) Note receivable
The note receivable balance of $41,477 as of September 30, 2006 consisted of one installment note from Fourth Quarter Properties 124, LLC that matures on December 31, 2006 with an optional extension term of three months. The note is secured by a first mortgage on the 9.68 acres located in Orange County, Florida. Interest only is due in advance on the first of each month at a rate of 9.25% per annum. Upon closing, an interest reserve escrow totaling three months of interest payments was established for the note.
-14-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
(5) Investment Securities
Investment in securities of $148,933 and $28,614 at September 30, 2006 and December 31, 2005, respectively, consists of preferred and common stock investments in other REITs which are classified as available-for-sale securities and recorded at fair value. Unrealized holding gains and losses on available-for-sale securities are excluded from earnings and reported as a separate component of comprehensive income until realized. Of the investment securities held on September 30, 2006 and December 31, 2005, the Company has accumulated other comprehensive income of $8,766 and $500, respectively. Realized gains and losses from the sale of available-for-sale securities are determined on a specific identification basis. During the three and nine months ended September 30, 2006 the Company realized a gain of $1,351 and $1,973, respectively, on the sale of shares. Dividend income is recognized when earned. During the three and nine months ended September 30, 2006, dividend income of $2,392 and $4,933, respectively, was recognized and is included in interest and dividend income on the Consolidated Statement of Operations.
The Company has purchased a portion of its investment securities through a margin account. As of September 30, 2006, and December 31, 2005, the Company has recorded a payable of $61,219 and $14,097, respectively, for securities purchased on margin. This debt bears variable interest rates ranging between the London InterBank Offered Rate ("LIBOR") plus 25 basis points and LIBOR plus 50 basis points. At September 30, 2006, these rates were equal to a range between 5.58% and 5.83%. Interest expense in the amount of $877 and $1,666 is recognized in interest expense on the Consolidated Statement of Operations for the three and nine months ended September 30, 2006, respectively.
(6) Stock Option Plan
The Company has adopted an Independent Director Stock Option Plan (the "Plan") which, subject to certain conditions, provides for the grant to each independent director of an option to acquire 3,000 shares following their becoming a director and for the grant of additional options to acquire 500 shares on the date of each annual stockholders' meeting. The options for the initial 3,000 shares are exercisable as follows: 1,000 shares on the date of grant and 1,000 shares on each of the first and second anniversaries of the date of grant. The subsequent options will be exercisable on the second anniversary of the date of grant. The initial options will be exercisable at $8.95 per share. The subsequent options will be exercisable at the fair market value of a share on the last business day preceding the annual meeting of stockholders as determined under the Plan. During the three and nine months ended September 30, 2006, the Company issued 0 and 17,500 options to its independent directors, respectively. As of September 30, 2006 there were a total of 17,500 options issued, of which none had been exercised or expired. The per share weighted average fair value of options granted was $.44 on the date of the grant using the Black Scholes option-pricing model. During the three and nine months ended September 30, 2006, the Company recorded $1 and $4, respectively, of expense related to stock options.
(7) Leases
Master Lease Agreements
In conjunction with certain acquisitions, the Company received payments under master lease agreements pertaining to certain non-revenue producing spaces at the time of purchase, for periods ranging from three months to three years after the date of purchase or until the spaces are leased. As these payments are received, they are recorded as a reduction in the purchase price of the respective property rather than as rental income. The amount of such payments received for the three and nine months ended September 30, 2006 was $118 and $157, respectively.
-15-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
Operating Leases
Minimum lease payments to be received under operating leases, excluding rental income under master lease agreements and assuming no expiring leases are renewed, are as follows:
|
|
Minimum Lease |
|
|
|
Payments |
|
2006 |
$ |
88,168 |
* |
2007 |
|
120,344 |
|
2008 |
|
116,922 |
|
2009 |
|
113,422 |
|
2010 |
|
107,233 |
|
Thereafter |
|
696,108 |
|
Total |
$ |
1,242,197 |
|
* For the twelve month period from January 1, 2006 through December 31, 2006, taking into account the date of acquisition of the properties acquired as of September 30, 2006.
Ground Leases
The Company leases land under noncancelable operating leases at certain of the properties expiring in various years from 2020 to 2084. For the three and nine months ended September 30, 2006, ground lease rent was $54 and $161, respectively. Minimum future rental payments to be paid under the ground leases are as follows:
|
|
Minimum Lease |
|
|
|
Payments |
|
2006 |
$ |
150 |
* |
2007 |
|
153 |
|
2008 |
|
154 |
|
2009 |
|
155 |
|
2010 |
|
156 |
|
Thereafter |
|
11,969 |
|
Total |
$ |
12,737 |
|
* For the twelve month period from January 1, 2006 through December 31, 2006, taking into account the date of acquisition of the properties acquired as of September 30, 2006.
(8) Mortgages and Margins Payable
Mortgage loans outstanding as of September 30, 2006, and December 31, 2005, were $777,956 and $213,557, respectively, and had a weighted average interest rate of 5.13% and 4.99%, respectively. All of the loans have fixed interest rates ranging from 4.83% to 6.01%. Properties with a net carrying value of $1,231,723 and $342,821 at September 30, 2006, and December 31, 2005, respectively, and related tenant leases are pledged as collateral. As of September 30, 2006, scheduled maturities for the Company's outstanding mortgage indebtedness had various due dates through December 2035.
-16-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
Some of the mortgage loans require compliance with certain covenants, such as debt service ratios, investment restrictions and distribution limitations. As of September 30, 2006, the Company was in compliance with such covenants.
|
2006 |
2007 |
2008 |
2009 |
2010 |
|
Thereafter |
|
|
|
|
|
|
|
|
Maturing debt: |
|
|
|
|
|
|
|
Fixed rate debt |
- |
- |
- |
- |
161,000 |
|
616,956 |
|
|
|
|
|
|
|
|
The debt maturity excludes mortgage discounts associated with debt assumed at acquisition of which $3,764, net of accumulated amortization, is outstanding as of September 30, 2006.
The Company has purchased a portion of its investment securities through margin accounts. As of September 30, 2006, and December 31, 2005, the Company has recorded a payable of $61,219 and $14,097, respectively, for securities purchased on margin. This debt bears variable interest rates ranging between the London InterBank Offered Rate ("LIBOR") plus 25 basis points and LIBOR plus 50 basis points. At September 30, 2006, these rates were equal to a range between 5.58% and 5.83%.
(9) Minority Interest
As a holder of common stock of MB REIT, the Company is entitled to receive distributions, paid on a monthly basis (or otherwise as declared by the Board of Directors or a committee of the Board of Directors authorized to declare dividends) from available cash, after dividends have been paid on any outstanding preferred stock including any accrued and unpaid dividends. The series A preferred stock entitles the holder to receive dividends, payable on a quarterly basis, equal to 3.5% of the face amount of the series A preferred stock. The series B preferred stock entitles the holder to an annual dividend of 12.5% on the face amount of the series B stock, payable semi-annually. The series C preferred stock entitles the holder to receive dividends, payable monthly, equal to 7% of the face amount of the series C preferred stock. As of September 30, 2006 and October 27, 2006, the Company has purchased common shares in MB REIT for a total investment of $450,000 and $550,000, respectively.
MB REIT's articles of incorporation do not permit, at any time, the ratio of the outstanding principal amounts of borrowings plus the outstanding series A preferred shares value to the fair market value of the total assets of MB REIT to be greater than 55%. This limit is more restrictive than the policy promulgated by our board of directors to limit total debt to 55% of total capital. In particular, total assets are defined in MB REIT's articles of incorporation to mean as of any date, the undepreciated real estate assets (excluding cash) of MB REIT and its subsidiaries and total borrowings include the series A preferred stock. The debt covenant ratio is performed at the end of the most recent calendar quarter. In calculating compliance with this covenant, the series A preferred shareholders agreed to exclude the series A preferred shares from the total of MB REIT's outstanding borrowings and to include MB REIT's cash and the Companys cash (including marketable securities) to the extent not committed and available for investment in common stock in MB REIT as part of its total assets for purposes of calculating compliance with the debt covenant ratio. As of September 30, 2006, the debt ratio was 34% based on the exclusion of the series A preferred shares from the total of MB REIT's outstanding borrowings and including MB REIT's cash as part of its total assets.
-17-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
Pursuant to the terms of a put/call agreement entered into with MD, the Company may be required to redeem MD's interest in the MB REIT. Under SFAS 150 and SFAS 133 the put/call arrangements are considered free standing derivative instruments. The assets or liabilities under these puts and calls are marked to market every quarter with changes in the value recorded in other expense in the consolidated statements of operations. The value of the put/call arrangements was a liability of ($23) and ($237) as of September 30, 2006 and December 31, 2005, respectively, included in prepaid rental and recovery income and other liabilities, resulting in unrealized gains (losses) on derivative instruments of ($401) and $214, respectively, included in other income for the three and nine months ended September 30, 2006.
The following tables present condensed financial information for MB REIT as of September 30, 2006 and December 31, 2005, and for the three and nine months ended September 30, 2006.
|
|
September 30, 2006 |
December 31, 2005 |
Assets |
|
|
|
Real estate, net |
$ |
1,421,982 |
707,579 |
Cash and cash equivalents |
|
100,899 |
10,805 |
Other assets |
|
218,566 |
81,203 |
|
|
|
|
Total assets |
$ |
1,741,447 |
799,587 |
|
|
|
|
Liability and stockholders' equity: |
|
|
|
Mortgage notes payable |
|
689,139 |
213,557 |
Other liabilities |
|
65,102 |
23,672 |
Stockholders' equity |
|
987,206 |
562,358 |
|
|
|
|
Total liabilities and stockholders' equity |
$ |
1,741,447 |
799,587 |
|
|
|
|
|
|
For the three months ended September 30, 2006 |
For the nine
|
Total income |
$ |
33,525 |
73,280 |
Other expenses |
|
(10,752) |
(20,011) |
Interest expense |
|
(6,864) |
(14,518) |
Depreciation and amortization |
|
(12,515) |
(28,926) |
|
|
|
|
Net income |
$ |
3,394 |
9,825 |
The minority interest represents outside interests in MB REIT and is comprised of:
-18-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
For the three months ended September 30, 2006.
|
|
Beginning |
|
|
|
|
|
|
|
|
Capital |
|
|
|
Income |
|
|
|
|
Balance |
|
Distributions |
|
Allocation (4) |
|
Total |
|
|
|
|
|
|
|
|
|
Series A preferred stock (1) |
$ |
264,132 |
$ |
(2,311) |
$ |
2,311 |
$ |
264,132 |
Series B preferred stock (2) |
|
125 |
|
(4) |
|
4 |
|
125 |
Series C preferred stock (3) |
|
264,003 |
|
(4,658) |
|
4,658 |
|
264,003 |
Common stock (1) |
|
25,190 |
|
(262) |
|
(286) |
|
24,642 |
|
|
|
|
|
|
|
|
|
|
$ |
553,450 |
$ |
(7,235) |
$ |
6,687 |
$ |
552,902 |
For the nine months ended September 30, 2006.
|
|
Beginning |
|
|
|
|
|
|
|
|
Capital |
|
|
|
Income |
|
|
|
|
Balance |
|
Distributions |
|
Allocation (4) |
|
Total |
|
|
|
|
|
|
|
|
|
Series A preferred stock (1) |
$ |
264,132 |
$ |
(6,933) |
$ |
6,933 |
$ |
264,132 |
Series B preferred stock(2) |
|
125 |
|
(12) |
|
12 |
|
125 |
Series C preferred stock(3) |
|
264,003 |
|
(13,809) |
|
13,809 |
|
264,003 |
Common stock (1) |
|
27,585 |
|
(1,308) |
|
(1,635) |
|
24,642 |
|
|
|
|
|
|
|
|
|
|
$ |
555,845 |
$ |
(22,062) |
$ |
19,119 |
$ |
552,902 |
(1)
owned by Minto Delaware, Inc.
(2)
owned by third party investors.
(3)
owned by Inland Western Retail Real Estate Trust, Inc.
(4)
income allocation not indicative of income tax allocation.
Allocations of profit and loss are made first to series A, B, and C preferred shareholders to equal their distributions and then to the common shareholders in accordance with their ownership interest. The income allocation for the common shareholders for the three and nine months ended September 30, 2006 was based on the monthly average ownership percentages of the shareholders during the period. As of September 30, 2006, Inland American and MD's effective ownership interest of the common stock was 94% and 6%, respectively.
(10) Income Taxes
In the second quarter of 2006, the state of Texas enacted new tax legislation. This legislation restructures the state business tax in Texas by replacing the taxable capital and earned surplus components of the current franchise tax with a new margin tax, which for financial reporting purposes is considered an income tax. As such, the Company has recorded a net deferred tax liability and deferred income tax (benefit) expense related to temporary differences of ($104) and $1,558 for the three and nine months ended September 30, 2006, respectively
-19-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
The temporary differences that give rise to the net deferred tax liability at September 30, 2006 consist of the following:
Gain on sales of real estate |
|
|
(1031 tax free exchange for tax) |
$ |
1,588 |
Depreciation |
|
(38) |
Straight-line rents |
|
17 |
Others |
|
(9) |
|
|
|
Total cumulative temporary differences |
$ |
$1,558 |
The Company has estimated its deferred income tax expense tax using the effective Texas margin tax rate of 1%.
-20-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
(11) Segment Reporting
The Company has four business segments: Office, Retail, Industrial and Multi-family. The Company evaluates segment performance primarily based on net property operations. Net property operations of the segments do not include interest expense, depreciation and amortization, general and administrative expenses, minority interest expense, or interest and other investment income from corporate investments. The following table summarizes net property operations income by segment for the three and nine months ended September 30, 2006.
For the three months ended September 30, 2006
|
|
Total |
|
Office |
|
Retail |
|
Industrial |
|
Multi-Family |
Property rentals |
$ |
26,442 |
$ |
10,956 |
$ |
14,610 |
$ |
406 |
$ |
470 |
Straight-line rents |
|
1,280 |
|
680 |
|
579 |
|
21 |
|
- |
Amortization of acquired above and below market leases, net |
|
325 |
|
(84) |
|
409 |
|
- |
|
- |
Total rentals |
$ |
28,047 |
$ |
11,552 |
$ |
15,598 |
$ |
427 |
$ |
470 |
|
|
|
|
|
|
|
|
|
|
|
Tenant recoveries |
|
6,382 |
|
2,232 |
|
4,113 |
|
37 |
|
- |
Other income |
|
698 |
|
300 |
|
347 |
|
- |
|
51 |
Total revenues |
$ |
35,127 |
$ |
14,084 |
$ |
20,058 |
$ |
464 |
$ |
521 |
|
|
|
|
|
|
|
|
|
|
|
Operating expenses |
$ |
9,618 |
$ |
3,768 |
$ |
5,511 |
$ |
61 |
|
278 |
|
|
|
|
|
|
|
|
|
|
|
Total expenses |
$ |
9,618 |
$ |
3,768 |
$ |
5,511 |
$ |
61 |
|
278 |
|
|
|
|
|
|
|
|
|
|
|
Net property operations |
$ |
25,509 |
$ |
10,316 |
$ |
14,547 |
$ |
403 |
|
243 |
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization |
$ |
(13,546) |
|
|
|
|
|
|
|
|
Business manager management fee |
$ |
(1,200) |
|
|
|
|
|
|
|
|
General and administrative |
$ |
(1,296) |
|
|
|
|
|
|
|
|
Interest and other investment income |
$ |
7,986 |
|
|
|
|
|
|
|
|
Interest expense |
$ |
(9,566) |
|
|
|
|
|
|
|
|
Income tax expense |
$ |
104 |
|
|
|
|
|
|
|
|
Other income |
$ |
(388) |
|
|
|
|
|
|
|
|
Minority interest |
$ |
(6,687) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
$ |
916 |
|
|
|
|
|
|
|
|
-21-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
For the nine months ended September 30, 2006.
|
|
Total |
|
Office |
|
Retail |
|
Industrial |
|
Multi-Family |
|
|
|
|
|
|
|
|
|
|
|
Property rentals |
$ |
58,686 |
$ |
24,618 |
$ |
31,848 |
$ |
1,119 |
$ |
1,101 |
Straight-line rents |
|
2,770 |
|
1,470 |
|
1,240 |
|
60 |
|
- |
Amortization of acquired above and below market leases, net |
|
613 |
|
(104) |
|
717 |
|
- |
|
- |
Total rentals |
$ |
62,069 |
$ |
25,984 |
$ |
33,805 |
$ |
1,179 |
$ |
1,101 |
|
|
|
|
|
|
|
|
|
|
|
Tenant recoveries |
|
11,040 |
|
2,386 |
|
8,543 |
|
111 |
|
- |
Other income |
|
845 |
|
308 |
|
423 |
|
- |
|
114 |
Total revenues |
$ |
73,954 |
$ |
28,678 |
$ |
42,771 |
$ |
1,290 |
$ |
1,215 |
|
|
|
|
|
|
|
|
|
|
|
Operating expenses |
$ |
16,740 |
$ |
4,625 |
$ |
11,436 |
$ |
172 |
$ |
507 |
|
|
|
|
|
|
|
|
|
|
|
Total expenses |
$ |
16,740 |
$ |
4,625 |
$ |
11,436 |
$ |
172 |
$ |
507 |
|
|
|
|
|
|
|
|
|
|
|
Net property operations |
$ |
57,214 |
$ |
24,053 |
$ |
31,335 |
$ |
1,118 |
$ |
708 |
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization |
$ |
(30,495) |
|
|
|
|
|
|
|
|
Business manager management fee |
$ |
(1,200) |
|
|
|
|
|
|
|
|
General and administrative |
$ |
(3,812) |
|
|
|
|
|
|
|
|
Interest and other investment income |
$ |
16,027 |
|
|
|
|
|
|
|
|
Interest expense |
$ |
(18,814) |
|
|
|
|
|
|
|
|
Income tax expense |
$ |
(1,558) |
|
|
|
|
|
|
|
|
Other income |
$ |
227 |
|
|
|
|
|
|
|
|
Minority interest |
$ |
(19,119) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
$ |
(1,530) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance Sheet Data: |
|
|
|
|
|
|
|
|
|
|
Real estate assets, net |
$ |
1,711,684 |
$ |
794,095 |
$ |
876,187 |
$ |
23,057 |
$ |
18,345 |
Non-segmented assets |
|
641,505 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
$ |
2,353,189 |
|
|
|
|
|
|
|
|
The Company does not derive any of its consolidated revenue from foreign countries and has one major tenant, SBC, which individually accounted for 28% of the Company's consolidated rental revenues for the nine months ended September 30, 2006.
-22-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
(12) Earnings (loss) per Share
Basic earnings (loss) per share ("EPS") are computed by dividing net income (loss) by the weighted average number of common shares outstanding for the period (the "common shares"). Diluted EPS is computed by dividing net income (loss) by the common shares plus shares issuable upon exercising options or other contracts. As a result of the net income for the three months ended September 30, 2006 and the net loss incurred for the nine months ended September 30, 2006 and the three and nine months ended 2005, diluted weighted average shares outstanding do not give effect to common stock equivalents as to do so would be anti-dilutive or immaterial.
The basic and diluted weighted average number of common shares outstanding was 76,848,460 and 47,631,587 for the three and nine months ended September 30, 2006.
(13) Commitments and Contingencies
The Company has acquired several properties which have earnout components, meaning the Company did not pay for portions of these properties that were not rent producing. The Company is obligated, under certain agreements, to pay for those portions when the tenant moves into its space and begins to pay rent. The earnout payments are based on a predetermined formula. Each earnout agreement has a time limit regarding the obligation to pay any additional monies. If at the end of the time period allowed certain space has not been leased and occupied, the Company will own that space without any further obligation. Based on pro forma leasing rates, the Company may pay as much as $30,872 in the future, as vacant space covered by earnout agreements is occupied and becomes rent producing.
The Company has entered into interest rate lock agreements with lenders to secure interest rates on mortgage debt on properties the Company owns or will purchase in the future. The deposits are applied as credits to the mortgage funding as they occur. As of September 30, 2006, the Company has approximately $8,500 of rate lock deposits outstanding. The agreements locked interest rates ranging from 5.321% to 5.948% on approximately $565,000 in principal.
Inland American was required to purchase the remaining shares of MB REIT worth approximately $722,000 by December 31, 2006, however on October 27, 2006, the series A preferred shareholders agreed to extend the obligation to March 31, 2007. In addition, MB REIT was obligated to repurchase the series C preferred in the amount of $264,000 by December 31, 2006, however, the series A preferred shareholders have agreed to extend the obligation to January 31, 2007.
(14) Subsequent Events
The Company paid distributions of $4,460 to our stockholders in October 2006.
The Company issued 13,315,188 shares of common stock from October 1, 2006 through October 27, 2006, resulting in a total of 108,151,319 shares of common stock outstanding. As of October 27, 2006, subscriptions for a total of 106,704,608 shares were received resulting in total gross offering proceeds of $1,067,046 and an additional 1,446,711 shares were issued pursuant to the DRP for $13,816 of additional gross proceeds.
-23-
Inland American Real Estate Trust, Inc.
(A Maryland Corporation)
Notes To Consolidated Financial Statements
(continued)
(unaudited)
(Dollar amounts in thousands, except per share amounts)
September 30, 2006
The Company has acquired the following properties during the period October 1 to October 27, 2006. The respective acquisitions are summarized in the table below.
Date |
|
Year |
Approximate Purchase Price |
Gross Leasable Area |
|
Acquired |
Property |
Built |
($) |
(Sq. Ft.) |
Major Tenants |
10/13 |
Lincoln Village |
2002 |
40,068 |
128,962 |
Borders, Famous Footwear, Panera Bread |
10/13 |
Parkway Centre North |
2005 |
14,880 |
101,282 |
Dick's Sporting Goods, Best Buy, Michaels |
10/18 |
Doral-Waukesha |
1990/1991 |
2,400 |
43,940 |
Lang Companies |
10/19 |
500 Hartland |
2000 |
10,801 |
134,210 |
AMK Holding, Ltd. |
10/20 |
55 th Street |
1997/1999 |
13,500 |
175,062 |
Pura-flo MPC, Inc. |
10/20 |
Washington Mutual-Arlington |
1983 |
38,000 |
239,905 |
Providian Bancorp Services |
10/23 |
Industrial Drive |
1995 |
7,379 |
139,000 |
Metals USA |
The Company is obligated under earnout agreements to pay additional funds after certain tenants move into the vacant space and begins paying rent. During the period from October 1 to October 27, 2006, the Company funded earnouts totaling $672 at one of the existing properties.
There were no mortgage debt financings obtained from the period October 1 to October 27, 2006.
In October 2006, MB REIT paid distributions to series C preferred stockholders of $1,570 and paid distributions of $6,000 to common stockholders.
Inland American purchased 78,370 shares of the special voting stock of MB REIT in the amount of $100,000 in October 2006.
On October 26, 2006, Inland American participated out 25% or $10,369 of the note receivable (See Note 4) to Inland Real Estate Corporation (IRC), a related party. IRC will receive their prorata share of interest and loan fees.
On October 27, 2006 the Series A shareholders of MB REIT signed a letter to extend the date that the Company is required to invest $1,200,000 into MB REIT to March 31, 2007 and to extend the date that the Series C shareholders are to be redeemed to January 31, 2007. In addition the series A shareholders also signed a letter to modify the definition of Adjusted Total Assets as defined in the MB REITs Second Amended and Restated Articles of Incorporation to be equal to the sum of :(A) the Adjusted Total Assets (as calculated under the articles) plus (B) the Companys cash and cash equivalents (including marketable securities). For purposes of the prior sentence: (1) cash and cash equivalents shall mean all demand deposits, money market accounts and investments in certificates of deposit and repurchase agreements purchased with a maturity of three months or less, at the date of purchase, and (2) marketable securities shall mean financial instruments and foreign currencies (such as notes, stock, preferred shares, bonds, debentures, options, futures, swaps, rights, warrants and other similar financial assets) which are actively traded on an established securities market, a secondary market or the substantial equivalent thereof.
-24-
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations
We electronically file our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and all amendments to those reports with the Securities and Exchange Commission ("SEC"). The public may read and copy any of the reports that are filed with the SEC at the SEC's Public Reference Room at 100 F Street, NE, Washington, DC 20549-3628. The public may obtain information on the operation of the Public Reference room by calling the SEC at (800)-SEC-0330. The SEC maintains an Internet site at (www.sec.gov) that contains reports, proxy and information statements and other information regarding issuers that file electronically.
Certain statements in this "Management's Discussion and Analysis of Financial Condition and Results of Operations" and elsewhere in this quarterly report on Form 10-Q constitute "forward-looking statements" within the meaning of the Federal Private Securities Litigation Reform Act of 1995. Forward-looking statements are statements that are not historical, including statements regarding management's intentions, beliefs, expectations, representations, plans or predictions of the future and are typically identified by words such as "believe," "expect," "anticipate," "intend," "estimate," "may," "will," "should" and "could." The Company intends that such forward-looking statements be subject to the safe harbors created by Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These forward-looking statements involve numerous risks and uncertainties that could cause our actual results to be materially different from those set forth in the forward-looking statements. Examples of factors which could affect our performance are set forth in our annual report on Form 10-K for the year ended December 31, 2005, as filed with the Securities and Exchange Commission on March 15, 2006.
The following discussion and analysis relates to the three and nine months ended September 30, 2006. You should read the following discussion and analysis along with our Consolidated Financial Statements and the related notes included in this report. All dollar amounts are stated in thousands, except per share amounts. A discussion of activity for the three and nine months ended September 30, 2005 is not included because we were newly formed and did not have any significant operating or other activity during that period.
Executive Summary
Inland American Real Estate Trust, Inc., herein referred to as Inland American, was incorporated in October 2004 to acquire and manage a diversified portfolio of commercial real estate, primarily retail properties and multi-family, office and industrial buildings located in the United States and Canada. Our sponsor, Inland Real Estate Investment Corporation, herein referred to as our sponsor, is a subsidiary of The Inland Group, Inc. Various affiliates of our sponsor are involved in our operations, including our property managers, Inland American Retail Management LLC, Inland American Office Management LLC, Inland American Industrial Management LLC and Inland American Apartment Management LLC and our business manager, Inland American Business Manager and Advisor, Inc., all of whom are affiliates of The Inland Group, Inc. On August 31, 2005, we commenced our initial public offering of up to 500,000,000 shares of common stock or shares at $10 each, and up to 40,000,000 shares at $9.50 each, which may be purchased through our dividend reinvestment plan, herein referred to as DRP.
As of September 30, 2006, subscriptions for a total of 93,683,497 shares had been received including 20,000 shares issued to our sponsor. In addition, we sold 1,152,634 shares through our DRP. As a result of these sales, we have raised a total of $947,857 of gross offering proceeds as of September 30, 2006.
Our goal is to deliver returns to our stockholders through the acquisition of investment properties, creation of strategic joint ventures, and management of the related properties consisting of retail, office, industrial and multi-tenant properties. We actively manage our assets by leasing and releasing space at favorable rates, controlling expenses, and maintaining strong tenant relationships. We intend on potentially creating additional value through redeveloping and repositioning some of our properties in the future. We have distributed funds generated from cash flow from operating and investing activities including interest earned on cash investments and investment income earned and sale from marketable securities to our stockholders.
During the three months ended September 30, 2006, Minto Builders (Florida), Inc., herein referred to as MB REIT, invested approximately $544,340 to acquire six retail and two office properties containing an aggregate of approximately 2,386,757 square feet. In addition, MB REIT borrowed approximately $330,415 secured by eight of its properties. In
-25-
addition, for the three months ended September 30, 2006, Inland American invested $20,650 in marketable securities, recorded $8,507 of accumulated other comprehensive income and realized a gain of $1,351 on the sale of shares and earned dividend income of $2,393.
On a consolidated basis, essentially all of our revenues and operating cash flows this year were generated by collecting rental payments from our tenants, interest income on cash investments, and dividend income earned from investments in marketable securities. Our goal is to continue increasing our revenues by acquiring additional investment properties or operating companies and re-leasing those spaces that are vacant, or may become vacant, at more favorable rental rates. Our and MB REIT's largest expenses relate to the operation of our properties as well as the interest expense on the mortgages payable. Our and MB REIT's property operating expenses include, but are not limited to, real estate taxes, regular maintenance, landscaping, snow removal and periodic renovations to meet tenant needs. Pursuant to the lease agreements, some tenants of various properties are required to reimburse us for some or all of the particular tenant's pro rata share of the real estate taxes and operating expenses of the property.
Strategies and Objectives
We and MB REIT have not, and do not generally expect to focus property acquisitions in any one particular geographic location within the United States or Canada. However, we and MB REIT generally endeavor to acquire multiple properties within the same major metropolitan market so that property management is done more efficiently. We and MB REIT also seek properties with existing net leases. Net leases require tenants to pay a share, either prorated or fixed, of all, or a majority, of a particular property's operating expenses, including real estate taxes, special assessments, utilities, insurance, common area maintenance and building repairs, as well as base rent payments. We and MB REIT also may enter into purchase and leaseback transactions in which we or MB REIT will purchase a property and lease the property back to the seller.
To provide us and MB REIT with a competitive advantage over other potential purchasers, we and MB REIT generally do not condition any acquisition on our or MB REIT's ability to secure financing. We and MB REIT also may agree to acquire a property once construction is completed. In this case, we or MB REIT will be obligated to purchase the property if the completed property conforms to definitive plans, specifications and costs approved by us or MB REIT. We and MB REIT also may condition the acquisition of a property on the developer having signed leases for a certain percentage of the property. We also may construct or develop properties and render services in connection with developing or constructing the property so long as providing these services do not cause us to lose our qualification to be taxed as a real estate investment trust or REIT.
We also may seek to acquire publicly traded or privately owned entities that own commercial real estate assets. These entities may include REITs and other real estate operating companies, such as real estate management companies and real estate development companies. We do not have, and do not expect to adopt, any policies limiting our acquisitions of REITs or other real estate operating companies to those conducting a certain type of real estate business or owning a specific property type or real estate asset. In most cases, we evaluate the feasibility of acquiring these entities using the same criteria we use in evaluating a particular property. We expect that each acquired entity will be operated as either a wholly-owned or controlled subsidiary. We may acquire these entities in negotiated transactions or through tender offers. Any acquisition must, however, be consistent with maintaining our qualification to be taxed as a REIT. MB REIT does not intend to buy entities. MB REIT has a right of first refusal on all fee simple interests proposed to be acquired by Inland American until MB REIT is fully invested.
We and MB REIT consider a number of factors in evaluating whether to acquire any particular asset, including:
·
geographic location and property type;
·
condition and use of the asset;
·
historical performance;
·
current and projected cash flow;
·
potential for capital appreciation;
-26-
·
potential for economic growth in the area where the asset is located;
·
presence of existing and potential competition;
·
prospects for liquidity through sale, financing or refinancing of the asset; and
·
tax considerations.
We and MB REIT routinely borrow money to acquire real estate assets either at closing or at sometime thereafter. These borrowings may take the form of temporary, interim or permanent financing provided by banks, institutional investors and other lenders including lenders affiliated with our sponsor, us or MB REIT. These borrowings generally are secured solely by a mortgage on one or more of our or MB REIT's properties but also may require us or MB REIT to be directly or indirectly (through a guarantee) liable for the borrowings. We and MB REIT may borrow at either fixed or variable interest rates and on terms that require us or MB REIT to repay the principal on a typical, level schedule or at one-time in balloon payments. We also may establish a revolving line of credit for short-term cash management and bridge financing purposes.
We and MB REIT are subject to significant competition in seeking real estate investments and tenants. We and MB REIT compete for properties and tenants with many third parties engaged in real estate investment activities including other REITs, including those sponsored by our sponsor, specialty finance companies, insurance companies, mutual funds, institutional investors, hedge funds, and other entities. Some of these entities have substantially greater financial resources and may enjoy significant competitive advantages that result from, among other things, a lower cost of capital and enhanced operating efficiencies.
Properties and Investments
Joint Ventures
During the second quarter of 2006, we entered into joint ventures in which we have an ownership interest of 67% in each of the eight limited liability companies, herein referred to as the LLCs which own eight single tenant retail shopping centers. The LLC Properties are located in Connecticut, Massachusetts, New Jersey, Rhode Island, and South Carolina, and are 100% occupied as of September 30, 2006. In the first quarter of 2006, we entered into a joint venture in which we have an ownership interest of 75% in a limited liability company which owns Hyde Park Shopping Center. These entities are considered variable interest entities or "VIE's" as defined in FIN 46(R) and we are considered the primary beneficiary. Therefore, these entities are consolidated by us and the assets, liabilities, equity and results of operations are consolidated in our financial statements and discussions contained herein. The eight LLC Properties and Hyde Park Shopping Center are herein referred to as the JV Properties.
Inland American entered into a joint venture during the fourth quarter 2005 with Minto Delaware, a privately held Florida corporation, pursuant to which we agreed to invest up to approximately $1,172,000 in a privately head REIT known as MB REIT. Minto Delaware owns approximately $264,000 of Series A Preferred Stock in MB REIT as well as 23,000 shares of common stock. As of September 30, 2006, we had invested approximately $450,000 in MB REIT resulting in us owning 352,667 shares of common stock or approximately 94% of MB REIT's outstanding common stock.
As part of our agreement with Minto Delaware, we were given the right to designate, and have designated, three persons (consisting of two of our directors and our principal financial officer) out of a five person board which oversees MB REIT. Minto Delaware designates the other two board members. We also agree that until we have made our entire $1,172,000 capital contribution, we would provide MB REIT with a right of first refusal on all fee interests in real property. Thus, to date, all fee interests in real estate have been purchased by MB REIT although MB REIT's assets, liabilities and results of operations are consolidated into our financial statements. We do not expect to directly purchase any fee interests in property until we have made all of our required capital contributions.
An entity similarly sponsored by Inland Real Estate Investment Corporation, Inland Western Retail Real Estate Investment Trust, Inc., (Inland Western) has also invested approximately $264,000 in Series C Preferred Stock of MB REIT.
-27-
Inland American was required to purchase the remaining shares of MB REIT worth approximately $722,000 by December 31, 2006, however on October 27, 2006, the series A preferred shareholders have agreed to extend the obligation to March 31, 2007. In addition, MB REIT was obligated to repurchase the series C preferred in the amount of $264,000 by December 31, 2006, however the series A preferred shareholders have agreed to extend the obligation to January 31, 2007.
If we fail to make the required contributions to MB REIT by March 31, 2007, we will be in breach under the documents governing our investment in the MB REIT entitling Minto Delaware to, among other things, seek damages from us for breach. Depending on the type of remedies obtained by Minto Delaware if we breach the various investment documents, we may not be able to account for our investment in the MB REIT by consolidating it into our financial statements, which could have a material adverse effect on our results of operations and financial condition. Further, we may no longer be able to control the timing and amount of distributions from the MB REIT, which could have a material adverse effect on our ability to pay distributions. If we fail to make the required contributions, we may, among other things, be required to pay monetary damages to Minto Delaware, which could have a material-adverse effect on our results of operations, financial condition and ability to pay distributions.
For financial statement reporting purposes, we consolidate the assets, liabilities, equity and results of operations of MB REIT in our financial statements and discussions contained herein. An adjustment is made for the interest of minority holders in MB REIT.
Marketable Securities
Inland American had investments in marketable securities of $148,933 at September 30, 2006 consisting of preferred and common stock investments in other REITs. For the nine months ended September 30, 2006, Inland American realized a gain of $1,973 on the sale of shares, earned dividend income of $4,933 and recorded $8,766 of accumulated other comprehensive income.
We have invested a portion of our net proceeds from the offering of our common stock in marketable securities of other REITS. Although these investments have generated both current income and gain on sale, during the three months and nine months ended September 30, 2006, there is no assurance that existing or future investments will generate the same level of income or gains in the future.
Investment Properties
As of September 30, 2006, we owned, on a consolidated basis, sixty-four properties consisting of fifty-four Retail Properties, seven Office Properties, one Multi-Family Property and two Industrial Properties. The following disclosure describes by business segment, the location and character of these properties. Title to each property is held by a wholly-owned subsidiary of MB REIT, except where indicated.
Retail Segment
Retail Properties |
|
Location |
GLA Occupied |
% Occupied |
No. of Tenants as of 09/30/06 |
Mortgage Payable |
24 Hour Fitness |
|
Houston, TX |
78,000 |
92% |
4 |
- |
24 Hour Fitness |
|
Woodlands, TX |
45,906 |
100% |
1 |
- |
6101 Richmond Ave |
|
Houston, TX |
19,230 |
100% |
2 |
- |
Pinehurst Shopping Center |
|
Humble, TX |
26,322 |
66% |
18 |
- |
Paradise Shops of Largo |
|
Largo, FL |
53,241 |
97% |
5 |
7,325 |
Saratoga Town Center |
|
Corpus Christi, TX |
60,282 |
98% |
22 |
- |
Willis Town Center |
|
Willis, TX |
14,240 |
81% |
9 |
- |
Woodforest Square |
|
Houston, TX |
26,866 |
67% |
14 |
- |
Windermere Village |
|
Houston, TX |
23,200 |
92% |
12 |
- |
Eldridge Town Center |
|
Houston, TX |
78,471 |
100% |
28 |
- |
-28-
NTB Eldridge |
|
Houston, TX |
6,290 |
100% |
1 |
- |
Blackhawk Town Center |
|
Houston, TX |
34,128 |
100% |
12 |
- |
Carver Creek |
|
Dallas, TX |
23,732 |
71% |
2 |
- |
Chili's- Hunting Bayou |
|
Jacinto City, TX |
5,476 |
100% |
1 |
- |
Joe's Crab Shack |
|
Jacinto City, TX |
7,282 |
100% |
1 |
- |
Cinemark Theaters |
|
Jacinto City, TX |
68,000 |
100% |
1 |
- |
Antoine Town Center |
|
Houston, TX |
32,730 |
91% |
18 |
- |
Ashford Plaza |
|
Houston, TX |
30,402 |
85% |
17 |
- |
Highland Plaza |
|
Houston, TX |
72,730 |
99% |
22 |
- |
West End Square |
|
Houston, TX |
30,103 |
82% |
11 |
- |
Winchester Town Center |
|
Houston, TX |
16,500 |
92% |
9 |
- |
Atascocita Shopping Center |
|
Humble, TX |
46,146 |
98% |
7 |
- |
Cypress Town Center |
|
Houston, TX |
47,870 |
86% |
23 |
- |
Friendswood Shopping Center |
|
Friendswood, TX |
64,458 |
90% |
13 |
- |
Cinemark Theaters |
|
Webster, TX |
80,000 |
100% |
1 |
- |
Stables at Town Center (Phase I & II) |
|
Spring, TX |
80,496 |
84% |
28 |
- |
Walgreens |
|
Springfield, MO |
14,560 |
100% |
1 |
- |
Tomball Town Center |
|
Tomball, TX |
50,498 |
83% |
20 |
- |
Bay Colony Town Center |
|
League City, TX |
177,047 |
93% |
24 |
- |
Triangle Center |
|
Longview, WA |
247,814 |
98% |
36 |
23,600 |
Cinemark 12 |
|
Pearland, TX |
38,910 |
100% |
1 |
- |
Hunting Bayou |
|
Jacinto City, TX |
123,785 |
92% |
20 |
- |
Lakewood Shopping Center |
|
Margate, FL |
145,877 |
98% |
30 |
11,715 |
Monadnock Marketplace |
|
Keene, NH |
200,633 |
100% |
12 |
26,785 |
Stop & Shop (2) |
|
Hyde Park, NY |
52,500 |
100% |
1 |
8,100 |
Canfield Plaza |
|
Canfield, OH |
88,744 |
88% |
10 |
7,575 |
Shakopee Center |
|
Shakopee, MN |
103,442 |
100% |
2 |
8,800 |
Lincoln Mall |
|
Lincoln, RI |
429,646 |
98% |
45 |
33,835 |
Stop & Shop (2) |
|
Cumberland, RI |
85,799 |
100% |
1 |
11,531 |
Stop & Shop (2) |
|
Malden, MA |
79,229 |
100% |
1 |
12,753 |
Stop & Shop (2) |
|
Swampscott, MA |
65,268 |
100% |
1 |
11,066 |
Stop & Shop (2) |
|
Southington, CT |
64,948 |
100% |
1 |
11,145 |
Stop & Shop (2) |
|
Framingham, MA |
64,917 |
100% |
1 |
9,269 |
Stop & Shop (2) |
|
Bristol, RI |
63,128 |
100% |
1 |
8,368 |
Stop & Shop (2) |
|
Sicklerville, NJ |
68,323 |
100% |
1 |
8,535 |
Bi-Lo (2) |
|
Greenville, SC |
55,718 |
100% |
1 |
4,286 |
Brooks Corner |
|
San Antonio, TX |
147,427 |
85% |
19 |
14,276 |
Fabyan Randall |
|
Batavia, IL |
83,285 |
91% |
11 |
13,406 |
The Market at Hilliard |
|
Hilliard, OH |
104,656 |
97% |
16 |
- |
Eldridge Lakes Town Center |
|
Houston, TX |
54,980 |
100% |
19 |
7,406 |
Spring Town Center |
|
Spring, TX |
38,911 |
96% |
15 |
7,530 |
CyFair Town Center |
|
Cypress, TX |
55,520 |
100% |
28 |
5,599 |
Sherman Town Center |
|
Sherman, TX |
285,498 |
100% |
32 |
38,348 |
Buckhorn Plaza |
|
Bloomsburg, PA |
74,065 |
93% |
14 |
- |
|
|
|
|
|
|
|
Total Retail Properties |
|
4,137,229 |
95% (1) |
646 |
291,253 |
(1)
weighted average occupancy
(2)
owned by joint venture other than MB REIT
-29-
The square footage for Saratoga Town Center, Eldridge Town Center, NTB Eldridge, Chili's - Hunting Bayou, Joe's Crab Shack - Hunting Bayou, Friendswood Shopping Center, Lakewood Shopping Center, Bay Colony Town Center, Brooks Corner, Antoine Town Center, Lincoln Mall, Stables at Town Center (Phase I and II) CyFair Town Center and Buckhorn Plaza includes an aggregate of 226,733 square feet leased to tenants under ground lease agreements.
Office Segment
Office Properties |
|
Location |
|
GLA Occupied |
% Occupied |
No. of Tenants as of 09/30/06 |
Mortgage Payable |
6234 Richmond Ave |
|
Houston, TX |
|
15,701 |
61% |
3 |
- |
11500 Market Street |
|
Houston, TX |
|
2,719 |
100% |
1 |
- |
SBC Center |
|
Hoffman Estates, IL |
1,690,214 |
100% |
1 |
200,472 |
|
Bridgeside Point |
|
Pittsburgh, PA |
|
153,110 |
100% |
1 |
17,325 |
Lakeview Technology Center I |
|
Suffolk, VA |
|
110,007 |
100% |
1 |
14,470 |
Dulles Executive Offices I & II |
|
Herndon, VA |
|
346,559 |
91% |
8 |
68,750 |
IDS |
|
Minneapolis, MN |
|
1,253,417 |
90% |
244 |
161,000 |
|
|
|
|
|
|
|
|
Total Office Properties |
|
|
3,571,727 |
95% (1) |
259 |
462,017 |
(1)
weighted average occupancy
Industrial Segment
Industrial/Distribution Properties |
|
Location |
|
GLA Occupied |
% Occupied |
No. of Tenants as of 09/30/06 |
Mortgage Payable as of 09/30/06 |
McKesson Distribution Center |
|
Conroe, TX |
|
162,613 |
100% |
1 |
5,760 |
Thermo Process |
|
Sugarland, TX |
|
150,000 |
100% |
1 |
8,201 |
|
|
|
|
|
|
|
|
Total Industrial/Distribution Properties |
|
|
|
312,613 |
100% (1) |
2 |
13,961 |
(1)
weighted average occupancy
Multi-Family Segment
MB REITs multi-family property consists of one apartment building located in Louisville, KY containing approximately 256 units. As of September 30, 2006, 239 units were occupied and the mortgage payable on this property was approximately $10,725.
The following table lists the top ten tenants in all segments of our consolidated portfolio as of September 30, 2006 based on the amount of square footage they each occupy.
-30-
Cellomics/Fisher Scientific |
Office |
153,110 |
1.77% |
2,450 |
2.07% |
Thermo Process Systems |
Indus/Dist |
150,000 |
1.73% |
960 |
0.81% |
Walgreens |
Retail |
131,870 |
1.52% |
2,572 |
2.17% |
U.S. Joint Forces |
Office |
110,007 |
1.37% |
2,247 |
1.90% |
The majority of the income from these properties consists of rent received under long-term leases. Most of the leases require the tenant to pay a fixed minimum amount of rent, paid monthly in advance, and a pro rata share of the real estate taxes, special assessments, insurance, utilities, common area maintenance, management fees, and certain building repairs of the property. Certain of the tenant leases require the landlord to pay expenses above or below specific levels which could affect our operating results. Some of the leases also provide for the payment of percentage rent, calculated as a percentage of a tenant's gross sales above predetermined thresholds.
Critical Accounting Policies and Estimates
General
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions in certain circumstances that affect amounts reported in the accompanying consolidated financial statements and related notes. This section discusses those critical accounting policies and estimates. These judgments often result from the need to make estimates about the effect of matters that are inherently uncertain. Critical accounting policies discussed in this section are not to be confused with accounting principles and methods disclosed in accordance with U.S. generally accepted accounting principles or GAAP. GAAP requires information in financial statements about accounting principles, methods used and disclosures pertaining to significant estimates. This discussion addresses our judgment pertaining to trends, events or uncertainties known which were taken into consideration upon the application of those policies.
Acquisition of Investment Property
We allocate the purchase price of each acquired investment property between land, building and improvements, acquired above market and below market leases, in-place lease value, and any assumed financing that is determined to be above or below market terms. In addition, we allocate a portion of the purchase price to the value of customer relationships, if any. The allocation of the purchase price is an area that requires judgment and significant estimates. We use the information contained in the independent appraisal obtained at acquisition as the primary basis for the allocation to land and building and improvements. We determine whether any financing assumed is above or below market based upon comparison to similar financing terms for similar investment properties. We allocate a portion of the purchase price to the estimated acquired in-place lease costs based on estimated lease execution costs for similar leases as well as lost rent payments during assumed lease up period when calculating as if vacant fair values. We also evaluate each acquired lease based upon current market rates at the acquisition date and we consider various factors including geographical location, size and location of leased space within the investment property, tenant profile, and the credit risk of the tenant in determining whether the acquired lease is above or below market lease costs. After an acquired lease is determined to be above or below market, we allocate a portion of the purchase price to such above or below acquired lease costs based upon the present value of the difference between the contractual lease rate and the estimated market rate. For below market leases with fixed rate renewals, renewal periods are included in the calculation of below market in-place lease values. The determination of the discount rate used in the present value calculation is based upon the "risk free rate" and current interest rates. This discount rate is a significant factor in determining the market valuation which requires our judgment of subjective factors such as market knowledge, economics, demographics, location, visibility, age and physical condition of the property.
Impairment of Long-Lived Assets
In accordance with Statement of Financial Accounting Standard No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets or SFAS No. 144, we conduct an analysis on a quarterly basis to determine if indicators of impairment exist to ensure that the property's carrying value does not exceed its fair value. If this were to occur, we are required to record an impairment loss. The valuation and possible subsequent impairment of investment properties is a significant estimate that can and does change based on our continuous process of analyzing each property and reviewing assumptions about uncertain inherent factors, as well as the economic condition of the property at a particular point in time.
-31-
Cost Capitalization and Depreciation Policies
Our policy is to review all expenses paid and capitalize any items exceeding $5 which are deemed to be an upgrade or a tenant improvement. These costs are capitalized and included in the investment properties classification as an addition to buildings and improvements.
Buildings and improvements are depreciated on a straight-line basis based upon estimated useful lives of 30 years for buildings and improvements, and 15 years for site improvements. Furniture, fixtures and equipment are depreciated on a straight-line basis over five years. Tenant improvements are depreciated on a straight-line basis over the life of the related lease as a component of depreciation and amortization expense. The portion of the purchase price allocated to acquired above market costs and acquired below market costs is amortized on a straight-line basis over the life of the related lease as an adjustment to net rental income. Acquired in-place lease costs, customer relationship value, other leasing costs, and tenant improvements are amortized on a straight-line basis over the life of the related lease as a component of amortization expense.
Cost capitalization and the estimate of useful lives requires our judgment and includes significant estimates that can and do change based on our process which periodically analyzes each property and on our assumptions about uncertain inherent factors.
Revenue Recognition
We recognize rental income on a straight-line basis over the term of each lease. The difference between rental income earned on a straight-line basis and the cash rent due under the provisions of the lease agreements is recorded as deferred rent receivable and is included as a component of accounts and rents receivable in the accompanying consolidated balance sheets. Due to the impact of the straight-line basis, rental income generally is greater than the cash collected in the early years and decreases in the later years of a lease. We anticipate collecting all cash rent due over the terms of the leases as scheduled rent payments are made.
Reimbursements from tenants for recoverable real estate tax and operating expenses are accrued as revenue in the period the applicable expenditures are incurred. We make certain assumptions and judgments in estimating the reimbursements at the end of each reporting period. We don't expect the actual results to differ from the estimated reimbursement.
In conjunction with certain acquisitions, we may receive payments under master lease agreements pertaining to certain non-revenue producing spaces either at the time of, or subsequent to the purchase of some of our properties. Upon receipt of the payments, the receipts will be recorded as a reduction in the purchase price of the related properties rather than as rental income. These master leases may be established at the time of purchase in order to mitigate the potential negative effects of loss of rent and expense reimbursements. Master lease payments are received through a draw of funds escrowed at the time of purchase and may cover a period from six months to three years. These funds may be released to either us or the seller when certain leasing conditions are met. Funds received by third party escrow agents, from sellers, pertaining to master lease agreements are included in restricted cash. We record such escrows as both an asset and a corresponding liability, until certain leasing conditions are met. As of September 30, 2006, there were no material adjustments for master lease agreements.
We will recognize lease termination income if there is a signed termination letter agreement, all of the conditions of the agreement have been met, and the tenant is no longer occupying the property. Upon early lease termination, we will provide for losses related to unrecovered intangibles and other assets.
Partially-Owned Entities :
We consider APB 18: The Equity Method of Accounting for Investments in Common Stock, SOP 78-9: Accounting for Investments in Real Estate Ventures, Emerging Issues Task Force ("EITF") 96-16: Investors Accounting for an Investee When the Investor has the Majority of the Voting Interest but the Minority Partners have Certain Approval or Veto Rights, FASB Interpretation No. 46R (Revised 2003): Consolidation of Variable Interest Entities - An Interpretation of ARB No. 51 ("FIN 46R") and EITF 04-05: Determining Whether a General Partner, or the General Partners as a Group, Controls a Limited Partnership or Similar Entity When the Limited Partners Have Certain Rights,. to determine the
-32-
method of accounting for each of our partially-owned entities. In determining whether we have a controlling interest in a partially-owned entity and the requirement to consolidate the accounts of that entity, we consider factors such as ownership interest, board representation, management representation, authority to make decisions, and contractual and substantive participating rights of the partners/members as well as whether the entity is a variable interest entity in which it will absorb the majority of the entity's expected losses, if they occur, or receive the majority of the expected residual return, if they occur, or both.
Income Taxes
We and MB REIT operate in a manner intended to enable both entities to qualify as a real estate investment trust ("REIT") under Sections 856-860 of the Internal Revenue Code of 1986, as amended. Under those sections, a REIT which distributes at least 90% of its "REIT taxable income" to its shareholders each year and which meets certain other conditions will not be taxed on that portion of its taxable income which is distributed to its shareholders. If we or MB REIT fail to distribute the required amount of income to our shareholders, or fail to meet the various REIT requirements, we or MB REIT may fail to qualify as a REIT and substantial adverse tax consequences may result.
Liquidity and Capital Resources
General
Our principal demand for funds has been to invest in joint ventures including MB REIT, to pay operating and expenses associated with the offering and to make distributions to our stockholders. Generally, cash needs for items other than our investment in MB REIT and the other joint ventures have been funded from:
·
the net proceeds from the public offering of our shares of common stock;
·
from interest and investment income earned on our investment in marketable securities;
·
distributions from MB REIT and our other joint venture investments; or
·
advances or contributions from our sponsor.
Our current offering of shares of common stock expires on August 31, 2007 unless extended. As noted herein, through September 30, 2006, we had sold a total of 93,683,497 shares in the primary offering and 1,152,634 shares pursuant to the offering of shares through the dividend reinvestment plan leaving us with approximately 406,316,503 shares available for sale in the primary offering and 38,847,366 shares through the dividend reinvestment plan. We may also generate additional capital through borrowings secured by existing or future properties. As noted above, presently, all of our fee simple interests in properties are owned through our joint venture investments. As a matter of policy, we limit our total indebtedness to approximately 55% of the combined fair market value of our assets on a consolidated basis. For these purposes "fair market value" of each asset will be equal to the purchase price paid for the asset or the value reported in the most recent appraisal of the asset, whichever is later. As of September 30, 2006, we had borrowed approximately $777,956 equivalent to 45% of the combined fair market value of these assets on a consolidated basis. We may also generate additional capital through borrowings on an unsecured basis and from income generated from our existing real estate investments and investments in marketable securities. We believe these various sources of cash will provide us with sufficient monies to pay our operating expenses, fund our capital contributions to MB REIT and to pay distributions to our stockholders at the existing rate for the foreseeable future.
We consider all demand deposits, money market accounts and investments in certificates of deposit and repurchase agreements with a maturity of six months or less, at the date of purchase, to be cash equivalents. We maintain our cash and cash equivalents at financial institutions. The combined account balances at one or more institutions periodically exceed the Federal Depository Insurance Corporation ("FDIC") insurance coverage and, as a result, there is a concentration of credit risk related to amounts on deposit in excess of FDIC insurance coverage. We believe that the risk is not significant, as we do not anticipate that any financial institution will be unable to perform.
Liquidity
-33-
Offering
As of September 30, 2006, subscriptions for a total of 93,683,497 shares in the primary offering had been received and accepted, resulting in gross proceeds of $936,835. We have also sold an additional 1,152,634 shares pursuant to the DRP increasing the gross offering proceeds to $947,857.
As of September 30, 2006, we had incurred $101,681 of offering and organization costs. Our business manager has agreed to pay all organization and offering expenses, excluding such commissions and fees, which were $12,280 as of September 30, 2006, in excess of 4.5% of the gross offering proceeds. As of September 30, 2006, organization and offering costs, excluding commissions and fees, did not exceed the 4.5% limitation. We anticipate that these costs will not exceed this limitation upon completion of the offering.
MB REIT Capital Contribution Requirements
We are required to invest $1,200,000 in MB REIT by March 31, 2007. As of September 30, 2006, we have invested a total of $450,000 into MB REIT for 352,667 shares of MB REIT common stock equivalent to 94% of its outstanding common stock. MB REIT will use additional capital contributed by us plus borrowings secured by new or existing properties to fund additional investments in real estate. MB REIT is obligated to repurchase the series C preferred shares owned by Inland Western by January 31, 2007 in the amount of $264,000.
Mortgage Debt
As of September 30, 2006, on a consolidated basis, we had mortgage debt secured by thirty properties totaling approximately $777,956, which excludes mortgage discounts net of accumulated amortization of $3,764 as of September 30, 2006. These debt obligations require monthly payments and bear interest at a range of 4.83% to 6.01% per annum. As of September 30, 2006, the weighted average interest rate on the mortgage debt was 5.13%.
We have entered into interest rate lock agreements with lenders to secure interest rates on mortgage debt on properties we own or will purchase in the future. The deposits are applied as credits to the mortgage funding as they occur. As of September 30, 2006, we have approximately $8,500 of rate lock deposits outstanding. The agreements locked interest rates ranging from 5.321% to 5.948% on approximately $565,000 in principal.
Margins Payable
We have purchased a portion of our marketable securities through margin accounts. As of September 30, 2006, we have recorded a payable of $61,219 for securities purchased on margin against a total securities portfolio of $148,933. This debt bears variable interest rates ranging between the London InterBank Offered Rate ("LIBOR") plus 25 basis points and LIBOR plus 50 basis points. At September 30, 2006, the rates we were paying were in a range of between 5.58% and 5.83%, with a weighted average interest rate of 5.64%.
MB REIT Put/Call Agreement
The put/call agreement entered into with Minto Delaware is considered a free standing financial instrument and is thus accounted for pursuant to Statement of Financial Accounting Standards No. 150 "Accounting for Certain Financial Instruments with Characteristics of Both Liabilities and Equity" and Statement of Financial Accounting Standards No. 133 "Accounting for Derivative Financial Instruments and Hedging Activities." We may be required to redeem Minto Delaware's interest in the MB REIT in the following circumstances:
·
On or after October 11, 2011 until October 11, 2012, Minto Holdings, an affiliate of Minto Delaware, has the option to require us to purchase, in whole, but not in part, 100% of the Minto Delaware's investment in the MB REIT (consisting of the series A preferred stock and common stock) for a price equal to (A) if our shares of common stock are not listed, on the earlier of (x) the date we purchase Minto Delaware's investment or (y) 150 days after the date written notice of the exercise of the initial purchase right is given, the sum of (1) the series A liquidation preference, payable in cash and (2) $29,348 or (B) if the shares of our stock are listed, on the earlier of (x) the date we purchase Minto Delaware's investment or (y) 150 days after the date
-34-
written notice of the exercise of the initial purchase right is given, the sum of (1) the series A liquidation preference, payable in cash and (2) 2,934,800 shares of our common stock. The series A liquidation preference is equal to $1,276 per share for 207,000 shares of series A preferred stock plus accrued and unpaid dividends.
·
On or after October 11, 2012, Minto Holdings has an option to require us to purchase, in whole, but not in part, 100% of the Minto Delaware investment for a price equal to (A) if the shares of our common stock are not listed, on the earlier of (x) the date we purchase the Minto Delaware investment or (y) 150 days after written notice of a subsequent purchase right is given, the sum of (1) the series A liquidation preference, payable in cash and (2) the fair market value (pursuant to a specified formula) of the common stock held by Minto Delaware on the date written notice of the subsequent purchase right is given, payable in cash, or (B) if the shares of our common stock are listed, on the earlier of (x) the date we purchase the Minto Delaware equity or (y) 150 days after written notice of the subsequent purchase right is given, the sum of (1) the series A liquidation preference, payable in cash and (2) 2,934,800 shares of our common stock.
·
On or after October 11, 2015, so long as the MB REIT qualifies as a domestically controlled REIT, MB REIT has the right to purchase, in whole, but not in part, 100% of Minto Delaware's investment for a price equal to (A) if the shares of our common stock are not listed, the sum of (1) the series A liquidation preference, payable in cash and (2) the fair market value (pursuant to a specified formula) of the common stock of MB REIT held by Minto Delaware or (B) if the shares of our common stock are listed, the sum of (1) the series A liquidation preference, payable in cash and (2) 2,934,800 shares of our common stock.
Stockholder Liquidity.
We provide the following programs to facilitate investment in our shares and to provide limited liquidity for stockholders.
A DRP which allows stockholders to automatically reinvest cash distributions by purchasing additional shares from us at a price equal to $9.50 per share with no reduction in the gross proceeds for selling commissions or the marketing contribution and due diligence expense allowance.
The share repurchase program enables existing stockholders with limited, interim liquidity to sell shares back to us. The prices at which shares may be sold back to us are as follows:
·
One year from the purchase date, $9.25 per share;
·
Two years from the purchase date, $9.50 per share;
·
Three years from the purchase date, $9.75 per share; and
·
Four years from the purchase date, a price determined by our board of directors but in no event less than $10.00 per share.
As of September 30, 2006, no shares have been repurchased.
Capital Resources
The number of assets we will acquire depends, in part, upon the amount of the net proceeds of the existing and any future offering of common stock and the availability of, and interest rate on, mortgage debt. Recent increases in interest rates may impact the return that we are able to generate on future assets.
Cash Flows From Operating Activities
Consolidated cash flows from operating activities were $44,846 for the nine months ended September 30, 2006.
-35-
Inland American cash flows provided by operating activities were approximately $14,772 for the nine months ended September 30, 2006 and were generated primarily from interest and dividends and our investment in MB REIT and the JV Properties.
The JV Properties and MB REIT's cash flows provided by operating activities were approximately $30,074 for the nine months ended September 30, 2006 and are due primarily to operating income from property operations and interest income for the nine months ended September 30, 2006.
Cash Flows From Investing Activities
Consolidated cash flows used in investing activities were $831,127 for the nine months ended September 30, 2006.
Inland American cash flows used in investing activities were approximately $154,399 for the nine months ended September 30, 2006 and were primarily used for the purchase of marketable securities and the funding of a note receivable.
The JV Properties and MB REIT's cash flows used in investing activities were approximately $676,728 for the nine months ended September 30, 2006 and were primarily used for the acquisition of eight properties during the nine months ended September 30, 2006.
Cash Flows From Financing Activities
Consolidated cash flows from financing activities were $1,105,061 for the nine months ended September 30, 2006.
Inland American cash flows provided by financing activities were approximately $784,476 for the nine months ended September 30, 2006. We generated proceeds from the sale of shares, net of offering costs paid, of approximately $762,059. We generated approximately $47,122 by borrowing against our portfolio of marketable securities. We paid approximately $17,254 in distributions to our common shareholders, paid approximately $4,597 in loan fee deposits and repaid sponsor advances in the amount of $3,081.
The JV Properties and MB REIT's cash flows provided by financing activities were approximately $320,585 for the nine months ended September 30, 2006. The JV Properties and MB REIT generated approximately $319,395 from borrowings secured by mortgages on twenty-seven properties and approximately $40,125 from the issuance of MB REIT preferred and common shares during the nine months ended September 30, 2006. Also, MB REIT and the JV Properties paid approximately $7,913 for loan fees. MB REIT paid approximately $24,167 in distributions to its common and preferred shareholders during the nine months ended September 30, 2006.
We are exposed to interest rate changes primarily as a result of our long-term debt used to maintain liquidity and fund capital expenditures and expansion of our, the JV Properties and MB REIT's real estate investment portfolio and operations. Our interest rate risk management objectives are to limit the impact of interest rate changes on earnings and cash flows and to lower overall borrowing costs. To achieve these objectives we and MB REIT borrow primarily at fixed rates or variable rates with the lowest margins available and, in some cases, with the ability to convert variable rates to fixed rates. As of September 30, 2006, the only variable rate debt we had was on the marketable securities.
Our interest rate risk is monitored using a variety of techniques. The table below presents, on a consolidated basis, the principal amount, weighted average interest rates and maturity date (by year) on our mortgage debt as of September 30, 2006 to evaluate the expected cash flows and sensitivity to interest rate changes.
|
2006 |
2007 |
2008 |
2009 |
2010 |
Thereafter |
Maturing debt : |
|
|
|
|
|
|
Fixed rate debt (mortgage loans) |
- |
- |
- |
- |
161,000 |
616,956 |
|
|
|
|
|
|
|
Weighted average interest rate on debt: |
|
|
|
|
|
|
-36-
Fixed rate debt (mortgage loans) |
- |
- |
- |
- |
5.00% |
5.17% |
The debt maturity excludes mortgage discounts associated with debt assumed at acquisition of which $3,764, net of accumulated amortization, is outstanding as of September 30, 2006.
Results of Operations
General
The following discussion is based on our consolidated financial statements for the nine months ended September 30, 2006. As of September 30, 2006, all of our property acquisitions, except for the JV Properties and related borrowings have been completed through MB REIT.
Quarter Ended |
Properties Purchased Per Quarter |
Square Feet Acquired |
|
Purchase Price |
December 31, 2005 |
37 |
3,829,615 |
$ |
753,990 |
March 31, 2006 |
6 |
658,212 |
$ |
143,060 |
June 30, 2006 |
13 |
1,455,154 |
$ |
277,067 |
September 30, 2006 |
8 |
2,386,757 |
$ |
544,340 |
|
|
|
|
|
Total |
64 |
8,329,738 |
$ |
1,718,457 |
|
|
|
|
|
Rental Income, Tenant Recovery Income, and Other Property Income . Rental income consists of basic monthly rent, straight-line rent adjustments, amortization of acquired above and below market leases, fee income, and percentage rental income recorded pursuant to tenant leases. Tenant recovery income consists of reimbursements for real estate taxes, common area maintenance costs, management fees, and insurance costs. Other property income consists of other miscellaneous property income. Total property revenues were $35,127 and $73,954 for the three and nine months ended September 30, 2006. The tables below present property revenues by segment.
The majority of the revenue from the properties consists of rents received under long-term operating leases. Some leases provide for the payment of fixed base rent paid monthly in advance, and for the reimbursement by tenants to the JV Properties and MB REIT for the tenant's pro rata share of certain operating expenses including real estate taxes, special assessments, insurance, utilities, common area maintenance, management fees, and certain building repairs paid by the landlord and recoverable under the terms of the lease. Under these leases, the landlord pays all expenses and is reimbursed by the tenant for the tenant's pro rata share of recoverable expenses. Certain other tenants are subject to net leases which provide that the tenant is responsible for fixed based rent as well as all costs and expenses associated with occupancy. Under net leases, where all expenses are paid directly by the tenant rather than the landlord, such expenses are not included in the consolidated statements of operations. Under net leases where all expenses are paid by the landlord, subject to reimbursement by the tenant, the expenses are included within property operating expenses and reimbursements are included in tenant recovery income on the consolidated statements of operations.
For the three months ended September 30, 2006.
|
|
Total |
|
Office |
|
Retail |
|
Industrial |
|
Multi-Family |
|
|
|
|
|
|
|
|
|
|
|
Property rentals |
$ |
26,422 |
$ |
10,956 |
$ |
14,610 |
$ |
406 |
$ |
470 |
Straight-line rents |
|
1,280 |
|
680 |
|
579 |
|
21 |
|
- |
Amortization of acquired above and below market leases, net |
|
325 |
|
(84) |
|
409 |
|
- |
|
- |
Total rental income |
$ |
28,047 |
$ |
11,552 |
$ |
15,598 |
$ |
427 |
$ |
470 |
|
|
|
|
|
|
|
|
|
|
|
-37-
Tenant recoveries |
|
6,382 |
|
2,232 |
|
4,113 |
|
37 |
|
- |
Other income |
|
698 |
|
300 |
|
347 |
|
- |
|
51 |
Total property revenues |
$ |
35,127 |
$ |
14,084 |
$ |
20,058 |
$ |
464 |
$ |
521 |
For the nine months ended September 30, 2006.
|
|
Total |
|
Office |
|
Retail |
|
Industrial |
|
Multi-Family |
|
|
|
|
|
|
|
|
|
|
|
Property rentals |
$ |
58,686 |
$ |
24,618 |
$ |
31,848 |
$ |
1,119 |
$ |
1,101 |
Straight-line rents |
|
2,770 |
|
1,470 |
|
1,240 |
|
60 |
|
- |
Amortization of acquired above and below market leases, net |
|
613 |
|
(104) |
|
717 |
|
- |
|
- |
Total rental income |
$ |
62,069 |
$ |
25,984 |
$ |
33,805 |
$ |
1,179 |
$ |
1,101 |
|
|
|
|
|
|
|
|
|
|
|
Tenant recoveries |
|
11,040 |
|
2,386 |
|
8,543 |
|
111 |
|
- |
Other income |
|
845 |
|
308 |
|
423 |
|
- |
|
114 |
Total property revenues |
$ |
73,954 |
$ |
28,678 |
$ |
42,771 |
$ |
1,290 |
$ |
1,215 |
Office segment property rental revenues are lower than the retail segment primarily due to less rentable gross square feet and a lower average rent per square foot. Straight-line rents are higher for the office segment compared to other segments because the office portfolio has tenants that have base rent increases every year at higher rates than the other segments. Office segment properties had above market leases in place at the time of acquisition as compared to retail segment properties which had below market leases in place at the time of acquisition. Tenant recoveries for the office segment are lower than the retail segment because the office tenant leases allow for a lower percentage of their operating expenses and real estate taxes to be passed on to the tenants.
Retail segment property rental revenues are greater than the office segment primarily due to a higher average rent per square foot and more gross leasable square feet. Straight-line rents for our retail segment are less than the office segment because the increases are less frequent and in lower increments. The retail segment had below market leases in place at the time of acquisition as compared to office segment properties which had above market leases in place at the time of acquisition. Tenant recoveries for our retail segment are greater than the office segment because the retail tenant leases allow for a greater percentage of their operating expenses and real estate taxes to be passed on to the tenants. Other income for the retail segment is higher than the other segments due to one property located in Florida that is required to collect a sales tax from their tenants which we record as other income and operating expense.
Industrial segment rental revenues are less than the office and retail segments because there are only two tenants with less total gross leasable square feet than the office and retail segments at a lower rent per square foot. The two tenants have net leases and they are directly responsible for operating costs but reimburse us for real estate taxes and insurance.
Multi-family segment property rental revenues and income are lower than the other segments because MB REIT owned only one property owned in this segment as of September 30, 2006.
Property Operating Expenses and Real Estate Taxes . Property operating expenses consist of property management fees paid to property managers and operating expenses, including costs of owning and maintaining investment properties, real estate taxes, insurance, maintenance to the exterior of the buildings and the parking lots. Total expenses were $9,618 and $16,740 for the three and nine months ended September 30, 2006, respectively.
Effective October 1, 2006, we entered into an agreement with a limited liability company formed as an insurance association captive (Captive), which is wholly owned by us and three other entities previously sponsored by Inland Real Estate Investment Corporation: Inland Retail Real Estate Trust, Inc., Inland Western Retail Real Estate Trust, Inc. and Inland American Real Estate Trust, Inc. Inland Risk & Insurance Management Services, Inc., an affiliate of The Inland Group, provides services to the Captive. The Captive was formed to more efficiently manage the respective insurance coverage of the members and the premiums associated with property casualty coverage. The Captive will annually oversee the purchase of one or more insurance policies from a third party insurer on properties of its members that will be acceptable to all members. Portions of these insurance policies agreed upon by all members will be funded or reimbursed
-38-
by insurance policies purchased from the Captive by the members. The premium associated with the non-catastrophic property and casualty insurance policies purchased from the Captive will be divided among each of the members based upon a determination by a third-party, independent actuary of the losses, loss reserves and loss expenses that each member is expected to incur, and a proportional allocation of associated operating costs. Each member initially contributed approximately $188 to the Captive in the form of a capital contribution. The Captive will use this capital to pay a portion of certain property and casualty losses and general liability losses suffered by a member under the policies purchased by the Captive subject to deductibles applicable to each occurrence. These losses will be paid by the Captive up to and including a certain dollar limit, after which the losses are covered by the third party insurer. Future contributions to capital will be made in the form of premium payments determined for each member based on its individualized loss experiences as well as the level of deductible each member desires. We are required to remain as a member of the Captive for a period of five years.
General and Administrative Expenses. General and administrative expenses consist of professional services, salaries and computerized information services costs reimbursed to affiliates of the business manager for maintaining our accounting and investor records, affiliates of the business manager common share purchase discounts, directors and officers insurance, postage, board of directors fees and printer costs. Our expenses were $1,296 and $3,812 for the three and nine months ended September 30, 2006
Depreciation and Amortization. Depreciation and amortization expense was $13,546 and $30,495 and reflects depreciation on the properties purchased during the year and during 2005 and amortization expense resulting from the amortization of intangible assets for the three and nine months ended September 30, 2006.
The tables below present property operating expenses and real estate taxes, by segment.
For the three months ended September 30, 2006.
|
|
Total |
|
Office |
|
Retail |
|
Industrial |
|
Multi-Family |
Operating expenses and real estate taxes |
|
9,618 |
|
3,768 |
|
5,511 |
|
61 |
|
278 |
For the nine months ended September 30, 2006.
|
|
Total |
|
Office |
|
Retail |
|
Industrial |
|
Multi-Family |
Operating expenses and real estate taxes |
|
16,740 |
|
4,625 |
|
11,436 |
|
172 |
|
507 |
Office segment operating expenses per square foot are lower than the retail segments because several of the office leases are net leases and tenants are responsible for paying their own common area maintenance costs, real estate taxes and insurance. There are also fewer office properties than retail properties.
Retail segment operating expenses are greater than the other segments because the retail tenant leases require the owner to pay for common area maintenance costs, real estate taxes and insurance and then receive reimbursement from the tenant for the tenant's share of recoverable expenses.
Industrial segment operating expenses are lower than the other segments because MB REIT only owns two properties as of September 30, 2006 and the tenants have net leases and they are directly responsible for operating costs.
Multi-family segment operating expenses are lower than the office and retail segments because MB REIT only owns one property as of September 30, 2006.
Office and industrial operating margins are better for these segments as compared to the other segments because of the amount of tenants in these segments that have net leases and pay all of their own expenses.
Interest and Dividend Income and Realized Gain on Securities . Interest income consists of interest earned on short term investments and distributions from investments in REIT shares. Inland American's interest and dividend income was $5,534 and $10,880 for the three and nine months ended September 30, 2006, and resulted primarily from interest earned
-39-
on cash and dividends earned on marketable securities investments. Inland American's realized gain on securities was $1,351 and $1,973 for the three and nine months ended September 30, 2006. Interest income for MB REIT was $1,101 and $3,174 for the three and nine months ended September 30, 2006, resulting primarily from interest earned on cash investments. There is no assurance that we will be able to generate the same level of gains in the future.
Interest Expense . Mortgage interest expense was $8,087 and $16,204 for the three and nine months ended September 30, 2006 and reflects the interest paid and accrued on mortgage debt secured by 30 properties owned by MB REIT and the JV Properties. Interest expense on margin accounts for marketable securities investments was $877 and $1,666 and other interest expense including preferred returns to distribute to investors in the JV Properties was $602 and $944 for the three and nine months ended September 30, 2006.
Minority Interest
The minority interest represents the interests in MB REIT owned by third parties:
For the three months ended September 30, 2006.
|
|
Beginning |
|
|
|
|
|
|
|
|
Capital |
|
|
|
Income |
|
|
|
|
Balance |
|
Distributions |
|
Allocation (4) |
|
Total |
|
|
|
|
|
|
|
|
|
Series A preferred stock (1) |
$ |
264,132 |
$ |
(2,311) |
$ |
2,311 |
$ |
264,132 |
Series B preferred stock (2) |
|
125 |
|
(4) |
|
4 |
|
125 |
Series C preferred stock (3) |
|
264,003 |
|
(4,658) |
|
4,658 |
|
264,003 |
Common stock (1) |
|
25,190 |
|
(262) |
|
(286) |
|
24,642 |
|
|
|
|
|
|
|
|
|
|
$ |
553,450 |
$ |
(7,235) |
$ |
6,687 |
$ |
552,902 |
For the nine months ended September 30, 2006.
|
|
Beginning |
|
|
|
|
|
|
|
|
Capital |
|
|
|
Income |
|
|
|
|
Balance |
|
Distributions |
|
Allocation (4) |
|
Total |
|
|
|
|
|
|
|
|
|
Series A preferred stock (1) |
$ |
264,132 |
$ |
(6,933) |
$ |
6,933 |
$ |
264,132 |
Series B preferred stock (2) |
|
125 |
|
(12) |
|
12 |
|
125 |
Series C preferred stock (3) |
|
264,003 |
|
(13,809) |
|
13,809 |
|
264,003 |
Common stock (1) |
|
27,585 |
|
(1,308) |
|
(1,635) |
|
24,642 |
|
|
|
|
|
|
|
|
|
|
$ |
555,845 |
$ |
(22,062) |
$ |
19,119 |
$ |
552,902 |
(1)
owned by Minto Delaware, Inc.
(2)
owned by third party investors.
(3)
owned by Inland Western Retail Real Estate Trust, Inc.
(4)
income allocation not indicative of income tax allocation.
Allocations of profit and loss are made first to series A, B, and C preferred shareholders to equal their distributions and then to the common shareholders in accordance with their ownership interest. The income allocation for the common shareholders for the three and nine months ended September 30, 2006 was based on the average monthly ownership percentages of the shareholders during the period. As of September 30, 2006, Inland American and MD's effective ownership interest of the common stock was 94% and 6%, respectively.
Other Income and Expense
Under the Statement of Financial Accounting Standards No. 150 "Accounting for Certain Financial Instruments with Characteristics of Both Liabilities and Equity" ("SFAS 150") and the Statement of Financial Accounting Standards No.
-40-
133 "Accounting for Derivative Financial Instruments and Hedging Activities" ("SFAS 133"), the put/call arrangements related to the MB REIT transaction as discussed previously are considered derivative instruments. The asset and liabilities under these puts and calls are marked to market every quarter with changes in the value recorded as other income and expense in the consolidated statement of operations.
The value of the put/call arrangements was a liability of $237 as of December 31, 2005 and a liability with a value of $23 as of September 30, 2006. Other income (expense) of ($401) and $214 was recognized for the three and nine months ended September 30, 2006. The value of the put/call arrangements increased from December 31, 2005 to September 30, 2006 due the timing of the arrangements being nine months less and due to an increase in interest rates in the economic environment causing an increase in the risk free rate used to value the arrangements. The value of the put/call arrangement could increase or decrease in the future as the timing of the put and call options become closer.
The following table shows selected financial data relating to the historical financial condition and results of operations of Inland American, the JV Properties and MB REIT, our controlled and consolidated subsidiaries as of September 30, 2006.
|
|
|
|
As of |
|
|
|
|
September 30, 2006 |
Total assets: |
|
|
|
|
Inland American |
|
|
$ |
921,548 |
MB REIT and the JV Properties |
|
|
$ |
1,431,641 |
Total |
|
|
$ |
2,353,189 |
|
|
|
|
|
Mortgages and margins payable |
|
|
|
|
Inland American |
|
|
$ |
61,219 |
MB REIT and the JV Properties |
|
|
$ |
774,192 |
Total |
|
|
$ |
835,411 |
|
|
|
|
|
|
|
For the three months ended |
|
For the nine months ended |
|
|
September 30, 2006 |
|
September 30, 2006 |
|
|
|
|
|
Total income |
|
|
|
|
Inland American |
$ |
- |
$ |
- |
MB REIT and the JV Properties |
$ |
35,127 |
$ |
73,954 |
Total |
$ |
35,127 |
$ |
73,954 |
|
|
|
|
|
Total interest and dividend income |
|
|
|
|
Inland American |
$ |
5,534 |
$ |
10,880 |
MB REIT and the JV Properties |
$ |
1,101 |
$ |
3,174 |
Total |
$ |
6,635 |
$ |
14,054 |
|
|
|
|
|
Funds From Operations (a)(b) |
$ |
13,067 |
$ |
24,160 |
|
|
|
|
|
Cash flows provided by operating activities |
|
|
|
|
Inland American |
$ |
12,959 |
$ |
14,772 |
MB REIT and the JV Properties |
$ |
13,120 |
$ |
30,074 |
Total |
$ |
26,079 |
$ |
44,846 |
|
|
|
|
|
Cash flows used in investing activities |
|
|
|
|
Inland American |
$ |
43,069 |
$ |
154,399 |
MB REIT and the JV Properties |
$ |
346,288 |
$ |
676,728 |
Total |
$ |
389,357 |
$ |
831,127 |
|
|
|
|
|
Cash flows provided by financing activities |
|
|
|
|
Inland American |
$ |
299,692 |
$ |
784,476 |
MB REIT and the JV Properties |
$ |
100,345 |
$ |
320,585 |
-41-
Total |
$ |
400,037 |
$ |
1,105,061 |
|
|
|
|
|
Weighted average number of common shares outstanding, basic and diluted |
|
76,848,460 |
|
47,631,587 |
(a)
Represents consolidated numbers
(b)
One of our objectives is to provide cash distributions to our stockholders from cash generated by our operations. Cash generated from operations is not equivalent to our net income from continuing operations as determined under U.S. generally accepted accounting principles or GAAP. Due to certain unique operating characteristics of real estate companies, the National Association of Real Estate Investment Trusts or NAREIT, an industry trade group, has promulgated a standard known as "Funds from Operations" or "FFO" for short, which it believes more accurately reflects the operating performance of a REIT such as us. As defined by NAREIT, FFO means net income computed in accordance with GAAP, excluding gains (or losses) from sales of property, plus depreciation and amortization on real property and after adjustments for unconsolidated partnerships and joint ventures in which the Company holds an interest. We have adopted the NAREIT definition for computing FFO because management believes that, subject to the following limitations, FFO provides a basis for comparing our performance and operations to those of other REITs. The calculation of FFO may vary from entity to entity since capitalization and expense policies tend to vary from entity to entity. Items that are capitalized do not impact FFO, whereas items that are expensed reduce FFO. Consequently, our presentation of FFO may not be comparable to other similarly-titled measures presented by other REITs. FFO is not intended to be an alternative to "Net Income" as an indicator of our performance nor to "Cash Flows from Operating Activities" as determined by GAAP as a measure of our capacity to pay distributions. We believe that FFO is a better measure of our operating performance because FFO excludes non-cash items from GAAP net income. This allows us to compare our relative property performance to determine our return on capital. Management uses the calculation of FFO for several reasons. We use FFO to compare our performance to that of other REITs in our peer group. Additionally, we use FFO in conjunction with our acquisition policy to determine investment capitalization strategy. FFO is calculated as follows:
|
|
|
For the three months ended |
For the nine months ended |
|
|
|
September 30, 2006 |
September 30, 2006 |
|
|
|
|
|
|
Net income (loss) applicable to common shares |
$ |
916 |
(1,530) |
Add: |
Depreciation and amortization related to investment properties |
|
13,546 |
30,495 |
Less: |
Minority interests' share of the above adjustment |
|
1,395 |
4,805 |
|
|
|
|
|
|
Funds from operations |
$ |
13,067 |
24,160 |
Contractual Obligations
The table below presents the consolidated entities obligations and commitments to make future payments under debt obligations, and lease agreements as of September 30, 2006.
|
Payments due by period |
|||||
|
|
|
Less than |
|
|
More than |
|
|
Total |
1 year |
1-3 years |
3-5 years |
5 years |
|
|
|
|
|
|
|
Long-Term Debt Obligations |
$ |
1,294,353 |
26,058 |
125,025 |
330,074 |
813,196 |
|
|
|
|
|
|
|
Ground Lease Payments |
$ |
12,737 |
150 |
307 |
311 |
11,969 |
MB REIT has acquired several properties subject to the obligation to pay the seller additional monies depending on the future performance of the property. MB REIT may be required to pay additional purchase price to the sellers. The earnout payments are based on a predetermined formula. Each earnout agreement has a time limit regarding the obligation to pay
-42-
any additional monies. If at the end of the time period, certain space has not been leased and occupied, MB REIT will not have any further obligation. Based on pro forma leasing rates, as of September 30, 2006 MB REIT may be obligated to pay as much as $30,872 in the future as vacant space covered by these so-called earnout agreements is occupied and becomes rent producing. The information in the above table does not reflect these contractual obligations.
The JV Properties and MB REIT are obligated to pay our property manager, an entity owned principally by individuals who are affiliates of the business manager, a property management fee totaling 4.5% of gross operating income monthly generated by each property, for management and leasing services. The JV Properties and MB REIT incurred and paid property management fees of $2,946 for nine months ended September 30, 2006.
After our stockholders have received a non-cumulative, non-compounded return of five percent (5.0%) per annum on their invested capital, we will pay our business manager an annual business management fee of up to one percent (1.0%) of the average invested assets, payable quarterly in an amount equal to one-quarter of one percent (0.25%) of the average invested assets as of the last day of the immediately preceding quarter. For these purposes, invested capital means the original issue price paid for the shares of the common stock reduced by prior distributions from the sale or financing of properties. For these purposes, average invested assets means, for any period, the average of the aggregate book value of assets, including lease intangibles, invested, directly or indirectly, in financial instruments, debt and equity securities and equity interests in and loans secured by real estate assets, including amounts invested in REITs and other real estate operating companies, before reserves for depreciation or bad debts or other similar non-cash reserves, computed by taking the average of these values at the end of each month during the period. The JV Properties and MB REIT incurred advisor asset management fees of $1,200 for the three months ended September 30, 2006, all of which remained unpaid as of September 30, 2006. The Business Manager has agreed to waive all fees allowed but not taken, except for the $1,200, for the nine months ended September 30, 2006.
Inland American was required to purchase the remaining shares of MB REIT worth approximately $722,000 by December 31, 2006, however on October 27, 2006, the series A preferred shareholders have agreed to extend the obligation to March 31, 2007. In addition, MB REIT was obligated to repurchase the series C preferred in the amount of $264,000 by December 31, 2006, however the series A preferred shareholders have agreed to extend the obligation to January 31, 2007.
If we fail to make the required contributions by March 31, 2007, we will be in breach under the documents governing our investment in the MB REIT entitling Minto Delaware to, among other things, seek damages from us for breach. Depending on the type of remedies obtained by Minto Delaware if we breach the various investment documents, we may not be able to account for our investment in the MB REIT by consolidating it into our financial statements which could have a material adverse effect on our results of operations and financial condition. Further, we may no longer be able to control the timing and amount of distributions from the MB REIT which could have a material adverse effect on our ability to pay distributions. If we fail to make the required contributions, we may, among other things, be required to pay monetary damages to Minto Delaware, which could have a material-adverse effect on our results of operations, financial condition and ability to pay distributions.
Subsequent Events
We paid distributions to our stockholders of $0.05 per share totaling $4,460 in October 2006.
We issued 13,315,188 shares of common stock from October 1, 2006 through October 27, 2006, resulting in a total of 108,151,319 shares of common stock outstanding. As of October 27, 2006, subscriptions for a total of 106,704,608 shares were received and accepted resulting in total gross offering proceeds of $1,067,046 and an additional 1,446,711 shares were issued pursuant to the DRP for $13,816 of additional gross proceeds.
On October 26, 2006, we sold 25% or $10,369 participation interest in a note receivable to Inland Real Estate Corporation (IRC), a related party. We maintain the risk of non-payment by the borrower. IRC will receive their prorata share of interest and loan fees. After we sold the 25% interest, our note receivable balance is approximately $31,108.
In October 2006, MB REIT paid distributions to Inland Western as the holder of the series C preferred stock of $1,570 and paid distributions of $6,000 to the common stockholders.
-43-
We and MB REIT have acquired the following properties during the period October 1, 2006 through October 27, 2006. The respective acquisitions are summarized in the table below.
Date |
|
Year |
Approximate Purchase Price |
Gross Leasable Area |
|
Acquired |
Property |
Built |
($) |
(Sq. Ft.) |
Major Tenants |
10/13 |
Lincoln Village |
2002 |
40,068 |
128,962 |
Borders, Famous Footwear, Panera Bread |
10/13 |
Parkway Centre North |
2005 |
14,880 |
101,282 |
Dick's Sporting Goods, Best Buy, Michaels |
10/18 |
Doral-Waukesha |
1990/1991 |
2,400 |
43,940 |
Lang Companies |
10/19 |
500 Hartland |
2000 |
10,801 |
134,210 |
AMK Holding, Ltd. |
10/20 |
55 th Street |
1997/1999 |
13,500 |
175,062 |
Pura-flo MPC, Inc. |
10/20 |
Washington Mutual-Arlington |
1983 |
38,000 |
239,905 |
Providian Bancorp Services |
10/23 |
Industrial Drive |
1995 |
7,379 |
139,000 |
Metals USA |
MB REIT is obligated under earnout agreements to pay additional funds to certain sellers once space that was vacant at the time MB REIT acquired the property becomes occupied and the tenants begin paying rent. During the period from October 1, 2006 through October 27, 2006, MB REIT funded earnouts totaling $672 at one of its existing properties.
No mortgage debt financings were obtained during the period from October 1, 2006 through October 27, 2006.
On October 27, 2006 the Series A shareholders of MB REIT signed a letter to extend the date that we are required to invest $1,200,000 into MB REIT to March 31, 2007 and to extend the date that the Series C shareholders are to be redeemed to January 31, 2007. In addition the series A shareholders also signed a letter to modify the definition of Adjusted Total Assets as defined in the MB REITs Second Amended and Restated Articles of Incorporation to be equal to the sum of :(A) the Adjusted Total Assets (as calculated under the articles) plus (B) the Companys cash and cash equivalents (including marketable securities). For purposes of the prior sentence: (1) cash and cash equivalents shall mean all demand deposits, money market accounts and investments in certificates of deposit and repurchase agreements purchased with a maturity of three months or less, at the date of purchase, and (2) marketable securities shall mean financial instruments and foreign currencies (such as notes, stock, preferred shares, bonds, debentures, options, futures, swaps, rights, warrants and other similar financial assets) which are actively traded on an established securities market, a secondary market or the substantial equivalent thereof.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
We may be exposed to interest rate changes primarily as a result of long-term debt used to maintain liquidity and fund capital expenditures and expansion of our real estate investment portfolio and operations. Our interest rate risk management objectives will be to limit the impact of interest rate changes on earnings and cash flows and to lower our overall borrowing costs. To achieve our objectives we will borrow primarily at fixed rates or variable rates with the lowest margins available and in some cases, with the ability to convert variable rates to fixed rates.
We may use derivative financial instruments to hedge exposures to changes in interest rates on loans secured by our properties. To the extent we do, we are exposed to credit risk and market risk. Credit risk is the failure of the counterparty to perform under the terms of the derivative contract. When the fair value of a derivative contract is positive, the counterparty owes us, which creates credit risk for us. When the fair value of a derivative contract is negative, we owe the counterparty and, therefore, it does not possess credit risk. It is our policy to enter into these transactions with the same party providing the financing, with the right of offset. In the alternative, we will minimize the credit risk in derivative instruments by entering into transactions with high-quality counterparties. Market risk is the adverse effect on the value of a financial instrument that results from a change in interest rates. The market risk associated with interest-rate contracts is managed by establishing and monitoring parameters that limit the types and degree of market risk that
-44-
may be undertaken. As of September 30, 2006 we did not have any derivative financial instruments that were used to hedge exposures to changes in interest rates on loans secured by our properties.
With regard to variable rate financing, we assess interest rate cash flow risk by continually identifying and monitoring changes in interest rate exposures that may adversely impact expected future cash flows and by evaluating hedging opportunities. We maintain risk management control systems to monitor interest rate cash flow risk attributable to both of our outstanding or forecasted debt obligations as well as our potential offsetting hedge positions. The risk management control systems involve the use of analytical techniques, including cash flow sensitivity analysis, to estimate the expected impact of changes in interest rates on our future cash flows.
While this hedging strategy described above would have the effect of smoothing out interest rate fluctuations, the results might reduce the overall returns on the investment.
We monitor interest rate risk using a variety of techniques. The table below presents mortgage debt principal amounts and weighted average interest rates by year and expected maturity to evaluate the expected cash flows and sensitivity to interest rate changes.
|
2006 |
2007 |
2008 |
2009 |
2010 |
Thereafter |
Maturing debt : |
|
|
|
|
|
|
Fixed rate debt (mortgage loans) |
- |
- |
- |
- |
161,000 |
616,956 |
|
|
|
|
|
|
|
Average interest rate on debt: |
|
|
|
|
|
|
Fixed rate debt (mortgage loans) |
- |
- |
- |
- |
5.00% |
5.17% |
The debt maturity excludes mortgage discounts associated with debt assumed at acquisition of which $3,764, net of accumulated amortization, is outstanding as of September 30, 2006.
We did not have any variable rate mortgage debt as of September 30, 2006.
We and MB REIT entered into a put/call agreement as a part of the MB REIT transaction to document the various redemption options for Minto Delawares preferred and common stock. This agreement is considered a derivative instrument and is accounted for pursuant to SFAS No. 133. Derivatives are required to be recorded on the balance sheet at fair value. If the derivative is designated as a fair value hedge, the changes in the fair value of the derivative and of the hedged item attributable to the hedged risk are recognized in earnings. The fair value of these derivative instruments is estimated using the Black-Scholes model.
Item 4. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
We have established disclosure controls and procedures to ensure that material information relating to the company, including our consolidated subsidiaries, is made known to the officers who certify our financial reports and to the members of our senior management and the Board of Directors.
Based on management's evaluation as of September 30, 2006, our chief executive officer and chief financial officer have concluded that, as of September 30, 2006, our disclosure controls and procedures (as defined in Rules 13a-15(e) or 15d-15(e) under the Securities Exchange Act of 1934, as amended) are effective to ensure that the information required to be disclosed by us in the reports that we file or submit under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms.
Changes in Internal Control over Financial Reporting
-45-
There were no significant changes in our internal control over financial reporting (as defined in Rules 13a-15(f) or 15d-15(f) under the Securities Exchange Act of 1934, as amended) during the three months ended September 30, 2006 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Part II - Other Information
Item 1. Legal Proceedings
Not applicable.
Item 1A. Risk Factors
Not applicable.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
Use of Proceeds from Registered Securities
We are currently offering shares of our common stock at $10.00 per share. The effective date of our offering was August 31, 2005 and the SEC file number assigned to our registration statement is 333-122743.
As of September 30, 2006, we have sold the following securities in our offering for the following aggregate offering prices:
· |
93,683,497 |
shares on a best efforts basis for $936,835; and |
· |
1,152,634 |
shares pursuant to the DRP for $11,022 |
As of September 30, 2006, we had sold 94,816,131 shares resulting in gross proceeds of $947,657, excluding the 20,000 shares purchased by our sponsor for $200 preceding the commencement of our offering.
Since October 4, 2004 (inception) through September 30, 2006, we have incurred the following expenses in connection with the offering and sale of our shares:
Type of Expense |
|
Amount |
Selling commissions |
$ |
65,942 |
Marketing contributions |
|
23,460 |
Other expenses to affiliates of the business manager |
|
893 |
Other expenses |
|
11,386 |
|
|
|
Total expenses |
$ |
101,681 |
The net offering proceeds to us from sale of the share described above, after deducting the total expenses paid and accrued are $846,176.
As of September 30, 2006, we have used the net offering proceeds as follows:
Use of Proceeds |
|
Amount |
Investment in MB REIT |
$ |
450,000 |
Working capital |
|
95,532 |
Investment in marketable securities |
|
73,594 |
Temporary investments |
|
227,050 |
Total uses |
$ |
846,176 |
-46-
We temporarily invested a portion of net offering proceeds in short-term, interest bearing securities, which were yielding 5.10% at September 30, 2006. These temporary investments represent cash received from investors that has not been deployed to purchase properties or other investments.
Item 3. Defaults Upon Senior Securities
Not Applicable.
Item 4. Submission of Matter to a Vote of Security Holders
None
Item 5. Other Information
Not Applicable.
Item 6. Exhibits
The following exhibits are filed as part of this document or incorporated herein by reference
EXHIBIT NO. |
|
DESCRIPTION |
||||
|
|
|
||||
3.1 |
|
|
Fourth Articles of Amendment and Restatement of Inland American Real Estate Trust, Inc. (incorporated by reference to Form 10-Q for the period ended March 31, 2006, as filed by the Registrant with the Securities and Exchange Commission on May 12, 2006 (file number 000-51609)) |
|||
|
|
|
|
|||
3.2 |
|
|
Amended and Restated Bylaws of Inland American Real Estate Trust, Inc., effective as of July 1, 2006 (incorporated by reference to Form 8-K dated June 20, 2006, as filed by the Registrant with the Securities and Exchange Commission on June 21, 2006 (file number 333-122743)) |
|||
|
|
|
|
|||
10.63 |
|
|
Guaranty (Re: Spring Town Center), dated December 20, 2004 (incorporated by reference to Exhibit 10.63 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.64 |
|
|
Guaranty (Re: Cy-Fair Town Center), dated November 23, 2004 (incorporated by reference to Exhibit 10.64 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.65 |
|
|
Guaranty (Re: Eldridge Lakes Town Center), dated November 23, 2004 (incorporated by reference to Exhibit 10.65 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.66 |
|
|
Assumption and Release Agreement (Re: Spring Town Center) (incorporated by reference to Exhibit 10.66 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.67 |
|
|
Assumption and Release Agreement (Re: Cy-Fair Town Center) (incorporated by reference to Exhibit 10.67 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.68 |
|
|
Assumption and Release Agreement (Re: Eldridge Lakes Town Center) (incorporated by reference to Exhibit 10.68 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.69 |
|
|
Deed of Trust and Security Agreement (Re: Spring Town Center), dated December 20, 2004 (incorporated by reference to Exhibit 10.69 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
-47-
10.70 |
|
|
Deed of Trust and Security Agreement (Re: Cy-Fair Town Center), dated November 23, 2004 (incorporated by reference to Exhibit 10.70 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.71 |
|
|
Deed of Trust and Security Agreement (Re: Eldridge Lakes Town Center), dated November 23, 2004 (incorporated by reference to Exhibit 10.71 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.72 |
|
|
Fixed Rate Note (Re: Spring Town Center), dated December 20, 2004 (incorporated by reference to Exhibit 10.72 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.73 |
|
|
Fixed Rate Note (Re: Cy-Fair Town Center), dated November 23, 2004 (incorporated by reference to Exhibit 10.73 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.74 |
|
|
Fixed Rate Note (Re: Eldridge Lakes Town Center), dated November 23, 2004 (incorporated by reference to Exhibit 10.74 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.75 |
|
|
Closing Agreement (Re: Spring Town Center), dated July 21, 2006 (incorporated by reference to Exhibit 10.75 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.76 |
|
|
Closing Agreement (Re: Cy-Fair Town Center; A-S 45), dated July 21, 2006 (incorporated by reference to Exhibit 10.76 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.77 |
|
|
Closing Agreement (Re: Eldridge Lakes Town Center), dated July 21, 2006 (incorporated by reference to Exhibit 10.77 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.78 |
|
|
Agreement of Purchase and Sale (Re: Dulles Executive Center), dated July 5, 2006, by and between Valley View Associates Limited Partnership and Inland Real Estate Acquisitions, Inc., as amended by the First Amendment (incorporated by reference to Exhibit 10.78 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.79 |
|
|
Assignment (Re: Dulles Executive Center), dated July 25, 2006, by Inland Real Estate Acquisitions, Inc. to and for the benefit of MB Herndon, L.L.C. (incorporated by reference to Exhibit 10.79 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.80 |
|
|
Post Closing and Indemnity Agreement (Re: Dulles Executive Center), dated July 25, 2006, by and among MB Herndon, L.L.C. and Valley View Associates Limited Partnership (incorporated by reference to Exhibit 10.80 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.81 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Swampscott Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.81 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.82 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Malden Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.82 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.83 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Sicklerville Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.83 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.84 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Southington Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.84 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
-48-
|
|
|
|
|||
10.85 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Greenville Pleasantburg Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.85 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.86 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Bristol Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.86 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.87 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Cumberland Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.87 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.88 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Framingham Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.88 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.89 |
|
|
Promissory Note (Re: Ahold PortfolioSwampscott), dated June 8, 2006 (incorporated by reference to Exhibit 10.89 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.90 |
|
|
Promissory Note (Re: Ahold PortfolioMalden), dated June 8, 2006 (incorporated by reference to Exhibit 10.90 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.91 |
|
|
Secured Promissory Note (Re: Ahold PortfolioSicklerville), dated June 8, 2006 (incorporated by reference to Exhibit 10.91 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.92 |
|
|
Secured Promissory Note (Re: Ahold PortfolioSouthington), dated June 8, 2006 (incorporated by reference to Exhibit 10.92 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.93 |
|
|
Secured Promissory Note (Re: Ahold PortfolioGreenville Pleasantburg) (incorporated by reference to Exhibit 10.93 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.94 |
|
|
Promissory Note (Re: Ahold PortfolioBristol), dated June 8, 2006 (incorporated by reference to Exhibit 10.94 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.95 |
|
|
Secured Promissory Note (Re: Ahold PortfolioCumberland), dated June 8, 2006 (incorporated by reference to Exhibit 10.95 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.96 |
|
|
Promissory Note (Re: Ahold PortfolioFramingham), dated June 8, 2006 (incorporated by reference to Exhibit 10.96 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.97 |
|
|
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated June 8, 2006, by and between Inland American Swampscott, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.97 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.98 |
|
|
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated June 8, 2006, by and between Inland American Malden, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.98 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
-49-
10.99 |
|
|
Mortgage and Security Agreement (Re: Ahold PortfolioSicklerville), dated June 8, 2006 (incorporated by reference to Exhibit 10.99 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.100 |
|
|
Mortgage and Security Agreement (Re: Ahold PortfolioSouthington), dated June 8, 2006 (incorporated by reference to Exhibit 10.100 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.101 |
|
|
Mortgage and Security Agreement (Re: Ahold PortfolioGreenville Pleasantburg), dated June 8, 2006 (incorporated by reference to Exhibit 10.101 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.102 |
|
|
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated June 8, 2006, by and between Inland American Bristol, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.102 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.103 |
|
|
Open-End Mortgage and Security Agreement (Re: Ahold PortfolioCumberland), dated June 8, 2006 (incorporated by reference to Exhibit 10.103 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.104 |
|
|
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated June 8, 2006, by and between Inland American Framingham, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.104 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.105 |
|
|
Agreement of Contribution by and between CE Cumberland 2001 LLC, Malden CE 2001 LLC, Swampscott CE 2001 LLC, CE Southington 2001 LLC, Framingham CE 2001 LLC, CE Bristol 2001 LLC, CE Sicklerville 2001 LLC, CE Greenville 2001 LLC and Inland Real Estate Acquisitions, Inc., dated as of February 24, 2006, as amended by the First Amendment, dated April 21, 2006, the Second Amendment, dated April 26, 2006, the Third Amendment, dated May 16, 2006 and the Fourth Amendment, dated June 1, 2006 (incorporated by reference to Exhibit 10.105 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.106 |
|
|
Assignments, dated June 8, 2006, in connection with the joint venture with CE Investment Associates 2001, LLC, by and between Inland Real Estate Acquisitions, Inc. and each of Inland American Bristol, L.L.C., Inland American Cumberland, L.L.C., Inland American Framingham, L.L.C., Inland American Greenville Pleasantburg, L.L.C., Inland American Malden, L.L.C., Inland American Sicklerville, L.L.C., Inland American Southington, L.L.C. and Inland American Swampscott, L.L.C. (incorporated by reference to Exhibit 10.106 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.107 |
|
|
Guaranties, dated June 8, 2006, in connection with the joint venture with CE Investment Associates 2001, LLC, by and between Inland American Real Estate Trust, Inc. and CE Investment Associates 2001, LLC, relating to each of the eight properties of the Ahold Portfolio (incorporated by reference to Exhibit 10.107 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.108 |
|
|
Loan Agreement by and between Inland American Swampscott, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.108 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.109 |
|
|
Loan Agreement by and between Inland American Malden, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.109 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.110 |
|
|
Loan Agreement by and between Inland American Framingham, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.110 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.111 |
|
|
Loan Agreement by and between Inland American Bristol, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.111 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
-50-
|
|
|
|
|||
10.112 |
|
|
Loan Agreement by and between Inland American Cumberland, L.L.C. and Principal Life Insurance Company (incorporated by reference to Exhibit 10.112 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.113 |
|
|
Loan Agreement by and between Inland American Sicklerville, L.L.C. and Principal Life Insurance Company (incorporated by reference to Exhibit 10.113 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.114 |
|
|
Loan Agreement by and between Inland American Greenville Pleasantburg, L.L.C. and Principal Commercial Funding, LLC (incorporated by reference to Exhibit 10.114 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.115 |
|
|
Loan Agreement by and between Inland American Southington, L.L.C. and Principal Commercial Funding, LLC (incorporated by reference to Exhibit 10.115 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.116 |
|
|
Agreement of Purchase and Sale by and between 80 South Eighth, L.L.C. and Inland Real Estate Acquisitions, Inc., dated June 29, 2006 (Re: IDS Center) (incorporated by reference to Exhibit 10.116 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.117 |
|
|
Assignment and Assumption of Purchase and Sale Agreement, dated June 29, 2006, by and between Inland Real Estate Acquisitions, Inc. and MB Minneapolis 8th Street, L.L.C. (Re: IDS Center) (incorporated by reference to Exhibit 10.117 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.118 |
|
|
Assumption Agreement by and between 80 South Eighth L.L.C., MB Minneapolis 8th Street, L.L.C., Minto Builders (Florida), Inc., JBC Opportunity Fund II, L.P., and Teachers Insurance and Annuity Association of America (Re: IDS Center) (incorporated by reference to Exhibit 10.118 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.119 |
|
|
Assumption and Amendment of Mortgage by and between 80 South Eighth L.L.C., MB Minneapolis 8th Street, L.L.C. and Teachers Insurance And Annuity Association of America (Re: IDS Center) (incorporated by reference to Exhibit 10.119 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.120 |
|
|
Mortgage, Assignments of Leases and Rents, Security Agreement and Fixture Filing Statement by and between 80 South Eighth, L.L.C. and Teachers Insurance and Annuity Association of America, Inc, dated December 15, 2004 (Re: IDS Center) (incorporated by reference to Exhibit 10.120 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.121 |
|
|
Promissory Note made by 80 South Eighth, L.L.C. payable to Teachers Insurance and Annuity Association of America, Inc, dated December 15, 2004 and Assumption of Note by and among MB Minneapolis 8th Street, L.L.C. and Teachers Insurance and Annuity Association of America (Re: IDS Center) (incorporated by reference to Exhibit 10.121 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.122 |
|
|
Closing Agreement by and between A-S 60 HWY 75-Loy Lake, L.P. and MB Sherman Town Center Limited Partnership (Re: Sherman Town Center) (incorporated by reference to Exhibit 10.122 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.123 |
|
|
Assumption and Release Agreement by and between A-S 60 HWY 75-Loy Lake, L.P., Steven D. Alvis, Jay K. Sears, H. Dean Lane, Jr. and Kyle D. Lippman, MB Sherman Town Center Limited Partnership, Minto Builders (Florida), Inc. and Wells Fargo Bank, N.A., as Trustee (Re: Sherman Town Center) (incorporated by reference to Exhibit 10.123 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.124 |
|
|
Deed of Trust and Security Agreement by A-S 60 HWY 70-Loy Lake, L.P. to Reno Hartfeil as trustee for the benefit of JP Morgan Chase Bank, dated June 15, 2004 (Re: Sherman Town Center) (incorporated by reference to Exhibit 10.124 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
-51-
|
|
|
|
|||
10.125 |
|
|
Fixed Rate Note by A-S 60 HWY 70-Loy Lake, L.P. payable to JP Morgan Chase Bank, dated June 30, 2004 (Re: Sherman Town Center) (incorporated by reference to Exhibit 10.125 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.126 |
|
|
Guaranty by Minto Builders (Florida), Inc. for the benefit of Wells Fargo Bank , N.A., as Trustee under that certain Pooling and Servicing Agreement dated as of November 23, 2004 (Re: Sherman Town Center) (incorporated by reference to Exhibit 10.126 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.127 |
|
|
Guaranty of Borrowers Recourse Liabilities by Minto Builders (Florida), Inc. for the benefit of Teachers Insurance and Annuity Association of America, Inc. (Re: IDS Center) (incorporated by reference to Exhibit 10.127 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.128 |
|
|
Assignment, dated July 14, 2006, from Minto Builders (Florida), Inc. to MB Sherman Town Center Limited Partnership of Real Estate Purchase Agreement, dated May 18, 2005 (Re: Sherman Town Center) (incorporated by reference to Exhibit 10.128 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.129 |
|
|
Loan Participation Agreement, by and between IA Orlando Sand, L.L.C. and Inland Real Estate Corporation, dated October 26, 2006 (*) |
|||
|
|
|
|
|||
10.130 |
|
|
Promissory Note, by and between Fourth Quarter Properties 124, L.L.C. and IA Orlando Sand, L.L.C., dated September 29, 2006 (*) |
|||
|
|
|
|
|||
10.131 |
|
|
First Mortgage and Security Agreement, by and between Fourth Quarter Properties 124, L.L.C. and IA Orlando Sand, L.L.C., dated September 29, 2006 (*) |
|||
|
|
|
|
|||
10.132 |
|
|
First Mortgage and Security Agreement (7.86 acre parcel), by and between Fourth Quarter Properties 124, L.L.C. and IA Orlando Sand, L.L.C., dated September 29, 2006 (*) |
|||
|
|
|
|
|||
10.133 |
|
|
Loan Guaranty Agreement, by and between Stanley E. Thomas and Thomas Enterprises, Inc., to IA Orlando Sand, L.L.C., dated September 29, 2006 (*) |
|||
|
|
|
|
|||
10.134 |
|
|
Collateral Assignment of Agreements Affecting Real Estate, by and between Fourth Quarter Properties 124, L.L.C. and IA Orlando Sand L.L.C., dated September 29, 2006 (*) |
|||
|
|
|
|
|||
10.135 |
|
|
Environmental Indemnity Agreement, by and among Fourth Quarter Properties 124, L.L.C., Stanley E. Thomas and Thomas Enterprises, Inc., for the benefit of IA Orlando Sand, L.L.C., dated September 29, 2006 (*) |
|||
|
|
|
|
|||
10.136 |
|
|
NUMBER INTENTIONALLY LEFT BLANK |
|||
|
|
|
|
|||
10.137 |
|
|
Fourth Side Letter Agreement to the Securities Purchase and Subscription Agreement and Second Amended and Restated Articles of Incorporation, by and between Minto Delaware, L.L.C. and Minto Builders (Florida), Inc., dated October 27, 2006 (*) |
|||
|
|
|
|
|||
10.138 |
|
|
Third Side Letter Agreement to the Securities Purchase and Subscription Agreement, by and among Minto (Delaware), L.L.C. and Minto Holdings, Inc. and Minto Builders (Florida), Inc. and Inland American Real Estate Trust, Inc., dated October 27, 2006 (*) |
|||
|
|
|
|
|||
10.139 |
|
|
Articles of Association of Oak Real Estate Association by and among Inland Real Estate Corporation, Inland Real Estate Trust, Inc., Inland Western Retail Real Estate Trust, Inc. and Inland American Real Estate Trust, Inc., dated September 29, 2006 (*) |
|||
|
|
|
|
|||
10.140 |
|
|
Operating Agreement of Oak Property and Casualty L.L.C. by and among Inland Real Estate Corporation, Inland Retail Real Estate Trust, Inc., Inland Western Retail Real Estate Trust, Inc. and Inland American Real Estate Trust, Inc, dated September 29, 2006 (*) |
|||
|
|
|
|
-52-
-53-
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
INLAND AMERICAN REAL ESTATE TRUST, INC.
|
|
|
|
|
/s/ Brenda G. Gujral |
By: |
Brenda G. Gujral |
|
President and Affiliated Director |
Date: |
November 6, 2006 |
|
|
|
|
|
/s/ Lori J. Foust |
By: |
Lori J. Foust |
|
Treasurer (principal financial and accounting officer) |
Date: |
November 6, 2006 |
-54-
Exhibit Index
The following exhibits are filed as part of this document or incorporated herein by reference
EXHIBIT NO. |
|
DESCRIPTION |
||||
|
|
|
||||
3.1 |
|
|
Fourth Articles of Amendment and Restatement of Inland American Real Estate Trust, Inc. (incorporated by reference to Form 10-Q for the period ended March 31, 2006, as filed by the Registrant with the Securities and Exchange Commission on May 12, 2006 (file number 000-51609)) |
|||
|
|
|
|
|||
3.2 |
|
|
Amended and Restated Bylaws of Inland American Real Estate Trust, Inc., effective as of July 1, 2006 (incorporated by reference to Form 8-K dated June 20, 2006, as filed by the Registrant with the Securities and Exchange Commission on June 21, 2006 (file number 333-122743)) |
|||
|
|
|
|
|||
10.63 |
|
|
Guaranty (Re: Spring Town Center), dated December 20, 2004 (incorporated by reference to Exhibit 10.63 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.64 |
|
|
Guaranty (Re: Cy-Fair Town Center), dated November 23, 2004 (incorporated by reference to Exhibit 10.64 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.65 |
|
|
Guaranty (Re: Eldridge Lakes Town Center), dated November 23, 2004 (incorporated by reference to Exhibit 10.65 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.66 |
|
|
Assumption and Release Agreement (Re: Spring Town Center) (incorporated by reference to Exhibit 10.66 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.67 |
|
|
Assumption and Release Agreement (Re: Cy-Fair Town Center) (incorporated by reference to Exhibit 10.67 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.68 |
|
|
Assumption and Release Agreement (Re: Eldridge Lakes Town Center) (incorporated by reference to Exhibit 10.68 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.69 |
|
|
Deed of Trust and Security Agreement (Re: Spring Town Center), dated December 20, 2004 (incorporated by reference to Exhibit 10.69 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.70 |
|
|
Deed of Trust and Security Agreement (Re: Cy-Fair Town Center), dated November 23, 2004 (incorporated by reference to Exhibit 10.70 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.71 |
|
|
Deed of Trust and Security Agreement (Re: Eldridge Lakes Town Center), dated November 23, 2004 (incorporated by reference to Exhibit 10.71 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.72 |
|
|
Fixed Rate Note (Re: Spring Town Center), dated December 20, 2004 (incorporated by reference to Exhibit 10.72 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.73 |
|
|
Fixed Rate Note (Re: Cy-Fair Town Center), dated November 23, 2004 (incorporated by reference to Exhibit 10.73 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.74 |
|
|
Fixed Rate Note (Re: Eldridge Lakes Town Center), dated November 23, 2004 (incorporated by reference to Exhibit 10.74 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
-55-
10.75 |
|
|
Closing Agreement (Re: Spring Town Center), dated July 21, 2006 (incorporated by reference to Exhibit 10.75 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.76 |
|
|
Closing Agreement (Re: Cy-Fair Town Center; A-S 45), dated July 21, 2006 (incorporated by reference to Exhibit 10.76 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.77 |
|
|
Closing Agreement (Re: Eldridge Lakes Town Center), dated July 21, 2006 (incorporated by reference to Exhibit 10.77 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.78 |
|
|
Agreement of Purchase and Sale (Re: Dulles Executive Center), dated July 5, 2006, by and between Valley View Associates Limited Partnership and Inland Real Estate Acquisitions, Inc., as amended by the First Amendment (incorporated by reference to Exhibit 10.78 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.79 |
|
|
Assignment (Re: Dulles Executive Center), dated July 25, 2006, by Inland Real Estate Acquisitions, Inc. to and for the benefit of MB Herndon, L.L.C. (incorporated by reference to Exhibit 10.79 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.80 |
|
|
Post Closing and Indemnity Agreement (Re: Dulles Executive Center), dated July 25, 2006, by and among MB Herndon, L.L.C. and Valley View Associates Limited Partnership (incorporated by reference to Exhibit 10.80 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.81 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Swampscott Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.81 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.82 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Malden Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.82 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.83 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Sicklerville Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.83 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.84 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Southington Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.84 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.85 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Greenville Pleasantburg Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.85 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.86 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Bristol Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.86 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.87 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Cumberland Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.87 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.88 |
|
|
Limited Liability Company Agreement, dated June 8, 2006, by and between Inland American Framingham Member II, L.L.C. and CE Investment Associates 2001 L.L.C. (incorporated by reference to Exhibit 10.88 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
-56-
10.89 |
|
|
Promissory Note (Re: Ahold PortfolioSwampscott), dated June 8, 2006 (incorporated by reference to Exhibit 10.89 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.90 |
|
|
Promissory Note (Re: Ahold PortfolioMalden), dated June 8, 2006 (incorporated by reference to Exhibit 10.90 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.91 |
|
|
Secured Promissory Note (Re: Ahold PortfolioSicklerville), dated June 8, 2006 (incorporated by reference to Exhibit 10.91 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.92 |
|
|
Secured Promissory Note (Re: Ahold PortfolioSouthington), dated June 8, 2006 (incorporated by reference to Exhibit 10.92 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.93 |
|
|
Secured Promissory Note (Re: Ahold PortfolioGreenville Pleasantburg) (incorporated by reference to Exhibit 10.93 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.94 |
|
|
Promissory Note (Re: Ahold PortfolioBristol), dated June 8, 2006 (incorporated by reference to Exhibit 10.94 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.95 |
|
|
Secured Promissory Note (Re: Ahold PortfolioCumberland), dated June 8, 2006 (incorporated by reference to Exhibit 10.95 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.96 |
|
|
Promissory Note (Re: Ahold PortfolioFramingham), dated June 8, 2006 (incorporated by reference to Exhibit 10.96 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.97 |
|
|
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated June 8, 2006, by and between Inland American Swampscott, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.97 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.98 |
|
|
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated June 8, 2006, by and between Inland American Malden, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.98 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.99 |
|
|
Mortgage and Security Agreement (Re: Ahold PortfolioSicklerville), dated June 8, 2006 (incorporated by reference to Exhibit 10.99 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.100 |
|
|
Mortgage and Security Agreement (Re: Ahold PortfolioSouthington), dated June 8, 2006 (incorporated by reference to Exhibit 10.100 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.101 |
|
|
Mortgage and Security Agreement (Re: Ahold PortfolioGreenville Pleasantburg), dated June 8, 2006 (incorporated by reference to Exhibit 10.101 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.102 |
|
|
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated June 8, 2006, by and between Inland American Bristol, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.102 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
-57-
10.103 |
|
|
Open-End Mortgage and Security Agreement (Re: Ahold PortfolioCumberland), dated June 8, 2006 (incorporated by reference to Exhibit 10.103 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.104 |
|
|
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated June 8, 2006, by and between Inland American Framingham, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.104 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.105 |
|
|
Agreement of Contribution by and between CE Cumberland 2001 LLC, Malden CE 2001 LLC, Swampscott CE 2001 LLC, CE Southington 2001 LLC, Framingham CE 2001 LLC, CE Bristol 2001 LLC, CE Sicklerville 2001 LLC, CE Greenville 2001 LLC and Inland Real Estate Acquisitions, Inc., dated as of February 24, 2006, as amended by the First Amendment, dated April 21, 2006, the Second Amendment, dated April 26, 2006, the Third Amendment, dated May 16, 2006 and the Fourth Amendment, dated June 1, 2006 (incorporated by reference to Exhibit 10.105 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.106 |
|
|
Assignments, dated June 8, 2006, in connection with the joint venture with CE Investment Associates 2001, LLC, by and between Inland Real Estate Acquisitions, Inc. and each of Inland American Bristol, L.L.C., Inland American Cumberland, L.L.C., Inland American Framingham, L.L.C., Inland American Greenville Pleasantburg, L.L.C., Inland American Malden, L.L.C., Inland American Sicklerville, L.L.C., Inland American Southington, L.L.C. and Inland American Swampscott, L.L.C. (incorporated by reference to Exhibit 10.106 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.107 |
|
|
Guaranties, dated June 8, 2006, in connection with the joint venture with CE Investment Associates 2001, LLC, by and between Inland American Real Estate Trust, Inc. and CE Investment Associates 2001, LLC, relating to each of the eight properties of the Ahold Portfolio (incorporated by reference to Exhibit 10.107 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.108 |
|
|
Loan Agreement by and between Inland American Swampscott, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.108 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.109 |
|
|
Loan Agreement by and between Inland American Malden, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.109 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.110 |
|
|
Loan Agreement by and between Inland American Framingham, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.110 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.111 |
|
|
Loan Agreement by and between Inland American Bristol, L.L.C. and Nomura Credit & Capital, Inc. (incorporated by reference to Exhibit 10.111 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.112 |
|
|
Loan Agreement by and between Inland American Cumberland, L.L.C. and Principal Life Insurance Company (incorporated by reference to Exhibit 10.112 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.113 |
|
|
Loan Agreement by and between Inland American Sicklerville, L.L.C. and Principal Life Insurance Company (incorporated by reference to Exhibit 10.113 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.114 |
|
|
Loan Agreement by and between Inland American Greenville Pleasantburg, L.L.C. and Principal Commercial Funding, LLC (incorporated by reference to Exhibit 10.114 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
|||
10.115 |
|
|
Loan Agreement by and between Inland American Southington, L.L.C. and Principal Commercial Funding, LLC (incorporated by reference to Exhibit 10.115 to the Registrants Form 8-K/A, as filed by the Registrant with the Securities and Exchange Commission on August 8, 2006) |
|||
|
|
|
|
-58-
10.116 |
|
|
Agreement of Purchase and Sale by and between 80 South Eighth, L.L.C. and Inland Real Estate Acquisitions, Inc., dated June 29, 2006 (Re: IDS Center) (incorporated by reference to Exhibit 10.116 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.117 |
|
|
Assignment and Assumption of Purchase and Sale Agreement, dated June 29, 2006, by and between Inland Real Estate Acquisitions, Inc. and MB Minneapolis 8th Street, L.L.C. (Re: IDS Center) (incorporated by reference to Exhibit 10.117 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.118 |
|
|
Assumption Agreement by and between 80 South Eighth L.L.C., MB Minneapolis 8th Street, L.L.C., Minto Builders (Florida), Inc., JBC Opportunity Fund II, L.P., and Teachers Insurance and Annuity Association of America (Re: IDS Center) (incorporated by reference to Exhibit 10.118 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.119 |
|
|
Assumption and Amendment of Mortgage by and between 80 South Eighth L.L.C., MB Minneapolis 8th Street, L.L.C. and Teachers Insurance And Annuity Association of America (Re: IDS Center) (incorporated by reference to Exhibit 10.119 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.120 |
|
|
Mortgage, Assignments of Leases and Rents, Security Agreement and Fixture Filing Statement by and between 80 South Eighth, L.L.C. and Teachers Insurance and Annuity Association of America, Inc, dated December 15, 2004 (Re: IDS Center) (incorporated by reference to Exhibit 10.120 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.121 |
|
|
Promissory Note made by 80 South Eighth, L.L.C. payable to Teachers Insurance and Annuity Association of America, Inc, dated December 15, 2004 and Assumption of Note by and among MB Minneapolis 8th Street, L.L.C. and Teachers Insurance and Annuity Association of America (Re: IDS Center) (incorporated by reference to Exhibit 10.121 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.122 |
|
|
Closing Agreement by and between A-S 60 HWY 75-Loy Lake, L.P. and MB Sherman Town Center Limited Partnership (Re: Sherman Town Center) (incorporated by reference to Exhibit 10.122 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.123 |
|
|
Assumption and Release Agreement by and between A-S 60 HWY 75-Loy Lake, L.P., Steven D. Alvis, Jay K. Sears, H. Dean Lane, Jr. and Kyle D. Lippman, MB Sherman Town Center Limited Partnership, Minto Builders (Florida), Inc. and Wells Fargo Bank, N.A., as Trustee (Re: Sherman Town Center) (incorporated by reference to Exhibit 10.123 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.124 |
|
|
Deed of Trust and Security Agreement by A-S 60 HWY 70-Loy Lake, L.P. to Reno Hartfeil as trustee for the benefit of JP Morgan Chase Bank, dated June 15, 2004 (Re: Sherman Town Center) (incorporated by reference to Exhibit 10.124 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.125 |
|
|
Fixed Rate Note by A-S 60 HWY 70-Loy Lake, L.P. payable to JP Morgan Chase Bank, dated June 30, 2004 (Re: Sherman Town Center) (incorporated by reference to Exhibit 10.125 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.126 |
|
|
Guaranty by Minto Builders (Florida), Inc. for the benefit of Wells Fargo Bank , N.A., as Trustee under that certain Pooling and Servicing Agreement dated as of November 23, 2004 (Re: Sherman Town Center) (incorporated by reference to Exhibit 10.126 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
|||
10.127 |
|
|
Guaranty of Borrowers Recourse Liabilities by Minto Builders (Florida), Inc. for the benefit of Teachers Insurance and Annuity Association of America, Inc. (Re: IDS Center) (incorporated by reference to Exhibit 10.127 to the Registrants Form 8-K, as filed by the Registrant with the Securities and Exchange Commission on August 23, 2006) |
|||
|
|
|
|
-59-
-60-
Exhibit 31.1
CERTIFICATION
I, Brenda G. Gujral, certify that:
1.
I have reviewed this quarterly report on Form 10-Q of Inland American Real Estate Trust, Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
c)
Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5.
The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
|
/s/ Brenda G. Gujral |
|
|
Name: |
Brenda G. Gujral |
Title: |
President |
Date: |
November 6, 2006 |
Exhibit 31.2
CERTIFICATION
I, Lori J. Foust, certify that:
1.
I have reviewed this quarterly report on Form 10-Q of Inland American Real Estate Trust, Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
c)
Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5.
The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
|
/s/ Lori J. Foust |
|
|
Name: |
Lori J. Foust |
Title: |
Treasurer and principal accounting officer |
Date: |
November 6, 2006 |
Exhibit 32.1
Certification Pursuant to
18 U.S.C. Section 1350, as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report on Form 10-Q of Inland American Real Estate Trust, Inc. (the "Company") for the fiscal quarter ended September 30, 2006, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), Brenda G. Gujral, president of the Company, certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of her knowledge:
(1)
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2)
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: November 6, 2006 |
|
By: |
/s/ Brenda G. Gujral |
|
|
Name: |
Brenda G. Gujral |
|
|
Title: |
President |
|
|
|
|
This certification accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by the Sarbanes-Oxley Act of 2002, be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended. A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
Exhibit 32.2
Certification Pursuant to
18 U.S.C. Section 1350, as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report on Form 10-Q of Inland American Real Estate Trust, Inc. (the "Company") for the fiscal quarter ended September 30, 2006, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), Lori J. Foust, treasurer and principal accounting officer of the Company, certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of her knowledge:
(1)
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2)
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: November 6, 2006 |
|
By: |
/s/ Lori J. Foust |
|
|
Name: |
Lori J. Foust |
|
|
Title: |
Treasurer and principal accounting officer |
This certification accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by the Sarbanes-Oxley Act of 2002, be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended. A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
EXHIBIT 10.129
LOAN PARTICIPATION AGREEMENT
THIS LOAN PARTICIPATION AGREEMENT (this Agreement ) is made as of this 26 th day of October, 2006, by and between IA ORLANDO SAND, L.L.C. , a Delaware limited liability company, having its principal place of business at 2901 Butterfield Road, Oak Brook, Illinois 60523 (together with its successors and/or assigns, hereinafter referred to as Lender ) and INLAND REAL ESTATE CORPORATION , a Maryland corporation Participant ).
R E C I T A L S:
A.
Lender is the lawful owner and holder of that certain Promissory Note dated as of September 29, 2006, made by Fourth Quarter Properties 124, LLC, a Georgia limited liability company ( Borrower ) in favor of Lender (the Note ), which Note evidences a loan made by Lender to Borrower in the original principal amount of Forty One Million Four Hundred Seventy Seven Thousand Sixty Two and 84/100 Dollars ($41,477,062.84) (the Loan ). A copy of the Note is attached hereto as Exhibit A ; and
B.
The Note is secured by certain loan documents, as described on Exhibit B , attached hereto and made a part hereof (collectively, the Loan Documents ), securing the Loan. The legal descriptions of the property described in Mortgage A and the property described in Mortgage B are attached hereto as Exhibit C , and are herein collectively referred to as the Mortgaged Property ; and
C.
At the closing of the Loan on September 29, 2006 (the Closing Date ), Lender received from Borrower a loan fee in the amount of $622,155.94 (the Loan Fee ).
D.
The Note provides for, and Lender is presently holding, an interest reserve to pay interest on the Loan as it becomes due under the Note.
E.
The outstanding and unpaid principal balance of the Note, accrued interest and all other sums which may or shall become due under the Note and the Loan Documents, as such may be modified, are hereinafter collectively referred to as the Debt ; and
F.
Participant has agreed to pay to Lender the sum of $10,369,265.71 (the Participation Payment ) in consideration for the participation of Participant with regard to the Note, the Debt, and the Loan Documents in the manner hereinafter set forth.
NOW, THEREFORE , in consideration of payment of Ten Million Three Hundred Sixty Nine Thousand Two Hundred Sixty Five and 71/100 Dollars ($10,369,265.71) by
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
Participant to Lender, and in further consideration of the mutual promises and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lender and Participant hereby agree as follows:
1.
Lender hereby represents to Participant as follows:
(a)
Lender has provided to Participant true, correct, and complete copies of each of the Loan Documents;
(b)
the Loan Documents have not been modified, amended or terminated;
(c)
the outstanding principal balance of the Loan is $41,477,062.84; and
(d)
Lender covenants and agrees that it shall not modify or amend the Note or any of the Loan Documents in any material respect without the prior written consent of Participant.
2.
From and after the date of this Agreement (except with regard to the Loan Fee as specifically provided in Paragraph 3, below), all rights and obligations of Lender with regard to the Loan shall be allocated on a parri passu basis as between Lender and Participant, in the following proportions:
(a)
Participant Share:
10,369,265.71 / 41,477,063 = 25%
(b)
Lender Share:
75%
3.
Lender shall pay to Participant within three business days after the date of this Agreement the Participant Share of (a) the Loan Fee, being: $622,155.94 x 25% = $155,538.99, and (b) interest on the Loan for the month of October, 2006 calculated from the date of Lenders receipt of the Participation Payment through October 31, 2006.
4.
From and after the date of this Agreement, the following shall be allocated on a parri passu basis as between Lender and Participant:
(a)
all payments received by Lender under the Note, the Loan Documents, and with regard to the Debt, including without limitation the Extension Fee, if applicable; and
(b)
all un-reimbursed costs incurred by Lender with regard to the Loan; and
(c)
the Participant Share of any income or payments related to the Loan shall be paid by Lender to Participant promptly (but in no event more than two business days) after receipt by Lender; Participant shall pay to Lender the Participant Share of any un-reimbursed costs incurred by Lender with regard to the Loan promptly after receipt of an invoice for such charges from Lender.
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
5.
Lender shall continue to hold the original Note and original Loan Documents, and shall retain full authority to act as the sole contact with the Borrower with regard to the Note and the Debt and in the administration and servicing of the Loan. In particular but not by way of limitation, Lender shall have the right without the prior consent of Participant to review and approve (a) Borrowers petitions for zoning or rezoning of the Mortgaged Property, (b) the form and content of the Deed of Trust (including the release of the Deed of Trust as provided for in the Post Closing Agreement) and the Assignment of Development Rights to be delivered by Borrower to Lender per the terms of the Post Closing Agreement (and copies of the final documents shall be delivered to Participant by Lender upon final approval and execution), and (c) all submittals made by Borrower with regard to the items required by the Post Closing Agreement and/or the Loan Documents.
6.
Lender and Participant each represent and warrant to the other that the undersigned has full power, authority and legal right to execute this Agreement on behalf of Lender and Participant, as applicable.
7.
This Agreement may not be modified, amended, changed or terminated orally, but only by an agreement in writing signed by both Lender and Participant.
8.
This Agreement shall be binding upon and inure to the benefit of Lender and Participant and their respective successors and assigns.
9.
This Agreement may be executed in any number of duplicate originals and each such duplicate original shall be deemed to constitute but one and the same instrument.
10.
If any term, covenant or condition of this Agreement shall be held to be invalid, illegal or unenforceable in any respect, this Agreement shall be construed without such provision.
11.
This Agreement shall be governed by and construed in accordance with the laws of the State in which the Mortgaged Property is located.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
IN WITNESS WHEREOF , Lender and Participant have executed this Agreement, as of the day and year first above written.
LENDER:
IA ORLANDO SAND, L.L.C.
By:
Inland American Real Estate Trust, Inc.
By:
/s/ Lori J. Foust _______
Name: Lori J. Foust
Title: Treasurer
PARTICIPANT:
INLAND REAL ESTATE CORPORATION
By:
/s/ Mark Zalatoris _______________
Its: Mark Zalatoris
Executive Vice President
NCLIB1 307152.3
EXHIBIT A
NOTE
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
PROMISSORY NOTE
Dated as of September 29, 2006
AT: Oak Brook, Illinois
FOR VALUE RECEIVED, the undersigned, Fourth Quarter Properties 124, LLC, a Georgia limited liability company (" Maker ") promises to pay to the order of IA ORLANDO SAND, L.L.C., a Delaware limited liability company (sometimes hereinafter referred to as " Payee "), having its principal place of business at 2901 Butterfield Road, Oak Brook, Illinois 60523, or at such other place or places as the holder hereof may from time to time designate in writing, the principal sum of Forty One Million Four Hundred Seventy Seven Thousand Sixty Two and 84/100 Dollars ($41,477,062.84), or so much thereof as disbursed, together with interest thereon at the rate set forth below from the date of first disbursement until maturity, unless the Default Rate, hereinafter defined, shall apply, as follows:
a.
Interest from the date of the first disbursement through the last day of the month of the first disbursement, both dates inclusive, will be at the rate of nine and one quarter percent (9.25%) per annum (the " Note Rate ") and shall be paid upon the first disbursement of proceeds. Beginning on the first day of the month following the month of the first disbursement and ending upon repayment in full of this Note, interest at the Base Rate, to be paid in advance on the first day of each month (i.e. interest for October, 2006 is due and payable on October 1, 2006).
b.
A final balloon payment of all outstanding principal and all accrued and unpaid interest and all other sums then due and payable under this Note, the Mortgage, hereinafter defined, and the Other Loan Documents, hereinafter defined, shall be paid on December 31, 2006 (" Initial Maturity Date ").
At Closing Maker shall deposit with Payee three (3) months of interest into an interest reserve account (the Interest Reserve ) to be held by Payee, from which Payee shall make payment of interest as it comes due on the Loan at the Note Rate. Maker grants to Payee a first-priority perfected security interest in the Interest Reserve and any and all monies now or hereafter deposited in such Interest Reserve as additional security for payment of the Loan. Until expended or applied in accordance herewith, the Interest Reserve shall constitute additional security for the Loan. Upon the occurrence of an Event of Default, under the this Note or the Other Loan Documents, Payee may, in addition to any and all other rights and remedies available, apply any sums then present in the Interest Reserve to the payment of the Loan in any order in its sole discretion. Upon payment in full of the Loan and all sums due under this Note and the Other Loan Documents, and performance by Maker of all other obligations under the Other Loan Documents, Payee shall disburse to Maker all remaining funds, if any, in the Interest Reserve.
Provided no event of default has ever occurred under the "Mortgage" or any of the "Other Loan Documents" (as hereinafter defined) beyond any applicable grace or cure periods, and if Maker is not then in default or in breach of any of the terms or conditions of this Note, the Mortgage or any Other Loan Documents, either at the time of the Notice of Election, hereafter defined, or subsequently on or before the first day of an Extension Term, hereinafter defined, and
NCLIB1 307152.3
further provided that (i) there is no condemnation commenced or threatened against the Premises which would have a material adverse effect on the value of the Premises, (ii) there is no environmental claim or complaint, pending or threatened, relating to the Premises, the land, the Maker or any contiguous land, other than that previously disclosed by Maker, (iii) no law, regulation, ordinance, restriction or similar matter has been enacted or adopted by any federal, state or local government that would, in Payee's reasonable judgment, materially and adversely affect the proposed use of the Premises, (iv) neither Maker nor any Guarantor is involved in any litigation, pending or threatened bankruptcy, reorganization, receivership or insolvency proceedings, and (v) Payee, in its sole discretion, has determined that there has not been a material deterioration in the net worth of liquid assets of the Maker nor any Guarantor, then Maker may elect to extend the Maturity Date of this Note for not more than one (1) term of three (3) months (the Extension Term and the expiration of the Extension Term, being March 30, 2007, the First Extension Maturity Date ) on the following terms and conditions:
1.
The Extension Term election shall be exercised by Maker serving a separate written notice (a Notice of Election ) to the holder hereof at least fifteen (15) days prior to the expiration of the Initial Maturity Date;
2.
As consideration to the holder hereof for granting such Extension Term, a non-refundable fee (an " Extension Fee ") in the amount of $25,000.00 shall be paid to Payee together with the Notice of Extension.
3.
The interest rate during the Extension Term shall continue to be at the Note Rate.
4.
The Extension Term shall be documented as reasonably required by the holder hereof and may include, without limitation: (i) a statement to the holder hereof from Maker and all guarantors of this Note, which recertifies as true and accurate all covenants, representations and warranties contained in the Mortgage and in the Other Loan Documents; and (ii) a written acknowledgment and consent from all of the guarantors acknowledging and consenting to such Extension Term and reaffirming their respective guaranties.
Notwithstanding anything to the contrary contained herein, if this Note is not repaid in full on the Initial Maturity Date due to Maker's default hereunder, Maker may not thereby evade the payment of an Extension Fee, and a fee in an amount equal to the Extension Fee shall be due as to such Maturity Date and shall be earned and due and payable; provided however, Payee shall not be required to grant any such extension to the Maker unless all conditions to such extension are fully complied with.
Maker acknowledges that the monthly installments required by the terms of this Note will not amortize the principal sum of the indebtedness by either the Initial Maturity Date or the First Extension Maturity Date (each sometimes hereinafter referred to as a "Maturity Date") resulting in a "balloon payment" on any of such maturity dates of the then unpaid principal sum and accrued and unpaid interest thereon. The holder of this Note has made no agreement to refinance such balloon payment.
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
Interest on unpaid principal shall be computed on the basis of a 360 day year using the actual number of days elapsed in any such year as follows: Base Rate or Default Rate, as the case may be, shall be multiplied by the outstanding principal balance of this Note; the resulting product shall be divided by 360, with the resulting quotient multiplied by the number of days elapsed for the period for which interest is payable. All payments required to be made herein shall be made in lawful money of the United States of America.
All monthly payments shall be due and payable on the first day of the month. If any monthly payment due hereunder is not made on or before the 10th day after the date such payment is due, a late payment charge equal to 5% of the delinquent payment shall be due and payable and the interest rate hereunder shall increase to the Default Rate on the entire outstanding principal sum and all accrued and unpaid interest thereon effective the date such payment was due until such default in payment is cured, which cure will include, but not be limited to, payment of such increased interest and the late payment charge. If the final balloon payment of all outstanding principal and all accrued and unpaid interest and all other sums then due and payable under this Note, the Mortgage and the Other Loan Documents is not made on the Maturity Date, a late payment charge equal to 5% of the delinquent payment shall be due and payable and the interest rate hereunder shall increase to the Default Rate on the entire outstanding principal sum and all accrued and unpaid interest thereon until all outstanding principal and all accrued and unpaid interest and all other sums then due and payable under this Note, the Mortgage and the Other Loan Documents is paid in full including, but not limited to, the payment of such increased interest and the late payment charge. No grace period is provided for the payment of principal and interest due on the Maturity Date.
Time is of the essence for all payments and other obligations due under this Note. Maker acknowledges that if any payment required under this Note is not received by Payee within ten (10) days after the same becomes due and payable, Payee will incur extra administrative expenses (i.e., in addition to expenses incident to receipt of timely payment) and the loss of the use of funds in connection with the delinquency in payment. Because, from the nature of the case, the actual damages suffered by Payee by reason of such administrative expenses and loss of use of funds would be impracticable or extremely difficult to ascertain, Maker agrees that five percent (5%) of the amount of the delinquent payment, together with interest accruing on the entire unpaid principal balance of this Note at the Default Rate, as provided above, shall be the amount of damages Payee is entitled to receive upon such breach in compensation therefor. Therefore, Maker shall, in such event, without further demand or notice, pay to Payee, as Payee's monetary recovery for such extra administrative expenses and loss of use of funds, liquidated damages in the amount of five percent (5%) of the amount of the delinquent payment (in addition to interest at the Default Rate). The provisions of this paragraph is intended to govern only the determination of damages in the event of a breach in the performance of Maker to make timely payments hereunder. Nothing in this Note shall be construed as in any way giving Maker the right, express or implied, to fail to make timely payments hereunder, whether upon payment of such damages or otherwise. The right of Payee to receive payment of such liquidated and actual damages, and receipt thereof, are without prejudice to the right of Payee to collect such delinquent payments and all other amounts provided to be paid hereunder or under any of the Mortgage or Other Loan Documents executed by Maker in favor of Payee with respect to the subject matter hereof, or to declare a default hereunder or under the Mortgage or any of the Other Loan Documents.
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
All payments required herein shall be applied first to all sums other than principal and interest due and payable under the terms of this Note, the Mortgage or the Other Loan Documents, next to all accrued and unpaid interest, including all interest at the Default Rate, with the balance of such payments, if any, applied to the outstanding principal sum due under this Note as determined by Lender in its sole and absolute discretion.
Any check, draft, money order or other instrument given in payment of all or any portion of this Note may be accepted by Payee and handled in collection in the customary manner at its option, but the same shall not constitute payment hereunder or diminish any rights of Payee, except to the extent that actual cash proceeds of such instrument are unconditionally received by Payee and applied to this indebtedness as herein provided. Payments received at the Payee's office after 2:00 p.m. local time, will be credited against this Note on the next business day. Payment in full checks are prohibited except pursuant to a separate written agreement between Maker and the holder hereof expressly permitting paid in full checks.
Any prepayment hereunder must include all accrued and unpaid interest (including, without limitation, any interest at the Default Rate due hereunder) and all late payment charges that have accrued and are unpaid through the date of such prepayment and all other sums due hereunder and under the Mortgage and the Other Loan Documents. Only upon payment of (i) the entire outstanding principal balance of this Note, (ii) all late payment charges and default interest, if applicable, (iii) all accrued and unpaid interest (including, without limitation, any interest due hereunder at the Default Rate) then due under this Note, and (iv) all other sums then due hereunder and under the Mortgage and the Other Loan Documents; shall this Note be deemed paid in full and the Mortgage and the Other Loan Documents be cancelled and released. For any prepayment made prior to the Initial Maturity Date, Borrower shall pay as a prepayment premium the difference between the interest paid through the date of prepayment and the interest Payee would have earned on the amount prepaid from the date of prepayment to the Initial Maturity Date (the Future Interest), as determined by Payee in its sole discretion. The calculation of Future Interest shall be based on the outstanding principal balance and the Note Rate at the time of prepayment. Provided that Maker has extended the Term through the Extension Term, Maker may prepay the Loan at any time during the Extension Term without penalty or Future Interest.
The entire outstanding principal sum together with all accrued and unpaid interest thereon, and all other payments then due hereunder and under the Mortgage and Other Loan Documents and together with, to the extent permitted under applicable law, costs and expenses, including reasonable attorneys' fees and disbursements, incurred by the holder in collecting or enforcing payment thereof, shall be and become immediately due and payable at the option of the holder hereof in the event of default in the making of any payments due hereunder after the expiration of any applicable grace or cure period, or in the event the right of acceleration accrues to the holder hereof pursuant to the terms and provisions of the Mortgage or the Other Loan Documents or in the event of any other default under this Note, the Mortgage or under any of the Other Loan Documents, continuing after the expiration of any applicable grace or cure period. The entire outstanding principal sum and all accrued and unpaid interest thereon shall bear interest at the rate of 18.00% per annum (" Default Rate ") effective the date of default, in the event of any default hereunder or under the Mortgage or any Other Loan Documents which is not
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
cured within any applicable grace or cure period, or from and after the date on which the right of acceleration accrues to the holder hereof pursuant to any of the terms of this Note, the Mortgage or the Other Loan Documents, irrespective of whether or not such acceleration is actually declared; provided, however, that in no event shall the Default Rate exceed the maximum rate permitted under applicable law. Maker agrees that interest which has accrued hereunder at the Default Rate shall be paid at the time of and as a condition precedent to the curing of any default hereunder or under the Mortgage or any Other Loan Documents. If such default is not cured prior to the entry of a judgment of foreclosure and sale, such interest accrued at the Default Rate shall be included in such judgment.
The entire outstanding principal sum together with all accrued and unpaid interest thereon, and all other payments then due hereunder and under the Mortgage and Other Loan Documents and together with, to the extent permitted under applicable law, costs and expenses, including reasonable attorneys' fees and disbursements, incurred by the holder in collecting or enforcing payment thereof shall also be and become immediately due and payable at the option of the holder hereof (a) if the Premises, or any part thereof or any interest therein is conveyed, sold (including a sale on an installment basis or pursuant to a land sale contract as more fully set forth in the Mortgage), transferred, leased, encumbered or assigned in any manner whether voluntarily or involuntarily without the prior written consent of the holder hereof; (b) if any representation or warranty of Maker or any guarantor, made herein, in the Mortgage or any Other Loan Documents, 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; or (c) in the event of any other prohibited transfer or any other event described in the Mortgage or any Other Loan Documents causing acceleration of the Maturity Date of this Note or (d) in the event that any interest in Borrower is transferred or conveyed.
The remedies of the holder hereof as provided herein or in the Mortgage or in any Other Loan Documents shall be cumulative and concurrent, and may be pursued singularly, successively or together, at the sole discretion of the holder hereof, and may be exercised as often as occasion therefor shall arise. The failure by the holder hereof to exercise any rights, powers, or remedies in this Note provided, including the right to accelerate the Maturity Date of this Note, upon the occurrence of one or more events of default under this Note, the Mortgage or any of the Other Loan Documents shall not constitute a waiver of the right to exercise the same or any other right, power, or remedy at any subsequent time in respect to the same event of default or any other event of default. The acceptance by the holder of this Note of any payment after the date such payment was due and any act of omission or commission by the holder hereof, including specifically any failure to exercise any right, remedy or recourse, shall not constitute a waiver of the right to exercise any rights, powers, or remedies in this Note provided at that time, or any subsequent time, or nullify any prior exercise of any right, power, or remedy without the written consent of the holder of this Note. Except as may be otherwise specifically required herein, notice of the exercise of any right, power or remedy granted to the holder hereof by this Note is not required to be given.
Maker shall pay on demand all expenses and costs, including fees and out of pocket expenses of attorneys and expert witnesses and costs of investigation, incurred by Lender as a result of any default under this Note or in connection with efforts to collect any amount due under this Note, or to enforce the provisions the Mortgage or the Other Loan Documents,
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
including those incurred in post judgment collection efforts, in any bankruptcy proceeding (including any action for relief from the automatic stay of any bankruptcy proceeding), or in any judicial or non judicial foreclosure proceeding including any appellate proceedings and review of tenant estoppel letters and subordination, attornment and non-disturbance agreements). Interest shall accrue on any judgment obtained by Lender in connection with the enforcement or collection of this Note until such judgment amount is paid in full at a rate equal to the greater of (a) the Default Rate or (b) the legal rate applicable to judgments within such jurisdiction; provided, however, that interest shall not accrue at a rate in excess of the maximum rate of interest, if any, which may be charged or collected from Maker under applicable law.
The liability of each of the Makers hereunder shall be primary, direct, joint, and several, and none of the Makers shall be deemed a surety, accommodation maker, or guarantor. The liability of each of the Makers shall not be adversely affected by (a) modification, extension, renewal, substitution or replacement of this Note, the Mortgage and any of the Other Loan Documents; (b) the extension of additional credit separate from this transaction by Payee; (c) the surrender, release, renewal, extension, sale exchange, or other disposition of all or any part of the collateral securing this Note or the acceptance of any additional or substituted collateral for this Note; (d) Payee's failure to protect any such collateral from waste, diminution in value, or otherwise; (e) Payee's purchase of any such collateral at judicial or other sale, or any subsequent resale at public or private sale; (f) any extension of time or any other indulgence granted by Payee under this Note, the Mortgage and any of the Other Loan Documents; (g) any failure or delay by Payee in attempting to enforce any of its rights or remedies under this Note, the Mortgage and any of the Other Loan Documents; (h) Payee's proceeding against fewer than all parties liable under this Note; (i) Payee's release, settlement, or compromise of its claim against any other party liable on this Note; or (j) the occurrence of any other event which might otherwise operate as a discharge under principles of suretyship.
Each Maker waives all rights to seek contribution, indemnification, or other form of reimbursement from the other Makers or any other person liable under this Note, including any rights of subrogation to the rights of Payee. In the event any payment on this Note is held to constitute a preference under the bankruptcy laws, the liability of each Maker shall automatically be revived to the full extent of such payment.
This Note is secured by a First Mortgage and Security Agreement (" Mortgage ") encumbering certain real estate, and the improvements thereon, situated in Orange County, Florida, as more particularly described in the Mortgage, and which Mortgage also grants a security interest in Equipment and intangibles, if any, as defined in the Mortgage (such real estate, improvements, Equipment and intangibles being herein collectively referred to as the " Premises ". In addition to the Mortgage, this Note is also secured by other loan documents including but not limited to an Assignment of Leases and Rents, a Collateral Assignment of Agreements Affecting Real Estate, a Loan Guaranty Agreement and an Environmental Guaranty (collectively, " Other Loan Documents "). The terms and provisions of, and the representations contained in, the Mortgage and the Other Loan Documents are hereby incorporated herein by reference to the same extent and with like effect as if the terms and provisions thereof and representations therein were recited verbatim herein. Any default under the Mortgage or Other Loan Documents shall be deemed to constitute a default hereunder. All notices which may be
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
required hereunder shall be sufficiently served by delivering same as provided and at the addresses appearing in the Mortgage for the service of notice.
As to this Note and the Mortgage and the Other Loan Documents securing the indebtedness evidenced by this Note, the undersigned and the successors, transferees and assigns thereof, and all guarantors and endorsers (i) severally waive all applicable exemption rights, whether under State Constitution, homestead laws, other statutes or otherwise, and also severally waive valuation and appraisement, presentment, demand for payment, dishonor and notice of dishonor, protest and notice of protest and nonpayment, diligence in collection and notice of the intention to accelerate, and (ii) expressly agree that the maturity of this Note, or any payment hereunder, may be extended from time to time without in any way affecting the liability of the undersigned, guarantors or endorsers. Except as may be expressly stated herein or in the Mortgage securing this Note, the undersigned hereby waives all defenses of any kind or nature, real and personal, waives all rights of set off of any kind or nature, and declares that the holder hereof may negotiate and sell this Note free of all such defenses and rights of set off and without notice, and that this Note shall be fully paid when due.
Maker is and shall be obligated to pay principal, interest and any and all other amounts which become payable hereunder or under the Mortgage or under the Other Loan Documents absolutely and unconditionally and without any abatement, postponement, diminution or deduction and without any reduction for counterclaim or set off. In the event that at any time any payment received by the holder hereof shall be deemed by a court of competent jurisdiction or have been a voidable preference or fraudulent conveyance under any bankruptcy, insolvency or other debtor relief law, that the obligation to make such payment shall survive any cancellation or satisfaction of this Note or return thereof to maker and shall not be discharged or satisfied with any prior payment thereof of cancellation of this Note, but shall remain a valid and binding obligation enforceable in accordance with the terms and provisions hereof, and such payment shall be immediately due and payable upon demand.
No extension of the time for the payment of this Note or any installment hereof made by agreement by the holder hereof with any person now or hereafter liable for the payment of this Note shall operate to release, discharge, modify, change or affect the original liability under this Note, either in whole, or in part, of the Maker or any successor, transferee or assign of Maker or any guarantors or endorsers.
If at any time or times hereafter the holder of this Note employs counsel for advice with respect to a default by the undersigned, or guarantor, if any, of this Note, or to intervene, file a petition, answer, motion or other pleading in any suit or proceeding relating to this Note, or to attempt to collect this Note from or to enforce this Note against the undersigned or any other person or entity obligated for the payment or performance of this Note, then, in any of such events, all of the attorneys' fees arising from such services and all expenses, costs and charges relating thereto, shall be additional indebtedness owing hereunder by the undersigned to the holder of this Note payable on demand.
This Note and all the provisions hereof shall extend to, be binding upon and inure to the benefit of the undersigned, its successors, transferees and assigns, any future owner of the Premises or any part thereof, and the Payee and any and all persons hereafter owning or holding
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
from time to time this Note, and their respective heirs, legal representatives, successors, transferees and assigns.
Any interest computation under this Note (or under any other instrument executed in connection with or as security for the payment hereof) shall be at not more than the maximum legal rate permitted by applicable law and in the event it should be held that interest payable under this Note (or under any other instrument executed in connection with or as security for the payment hereof) is in excess of the maximum permitted by law, the interest chargeable hereunder (or under any other instrument executed in connection with or as security for the payment hereof) shall be reduced to the maximum amount permitted by applicable law. If the holder of this Note shall collect interest which is in excess of the maximum amount permitted by law, all such sums deemed to constitute interest in excess of the maximum amount permitted by applicable law shall, at the option of the holder hereof, be refunded to Maker or credited to the payment of other amounts due under the Mortgage or Other Loan Documents, or to the principal of this Note, as the holder hereof determines.
Maker agrees to pay the effective rate of interest which is the total of interest computed at the rate stated herein plus any additional interest resulting from any other payments in the nature of interest, including without limitation, any initial service charge, extension fees, maintenance fees, late charge or default interest to the extent that such charges may be deemed includable in interest for any purpose, expressed as a rate of interest computed on the principal balance from time to time outstanding and the number of days elapsed from the date of disbursement until the date of payment.
Funds representing proceeds of the indebtedness evidenced hereby which are disbursed for any purpose by any holder hereof to the undersigned, or to any escrow or otherwise for the benefit of the undersigned, whether by mail, wire transfer or other delivery, shall be deemed principal outstanding hereunder and to have been received by the undersigned as of the date of such mailing, wire transfer or other delivery, and interest shall accrue and be payable upon such funds from and after the date of such mailing, wire transfer or delivery until repaid, notwithstanding the fact that such funds may not at any time have been remitted by any escrows to the undersigned or for its benefit.
Maker represents, warrants and covenants that (i) the indebtedness evidenced by this Note is being obtained for the purpose of acquiring and carrying on a business or commercial enterprises, (ii) all proceeds of such indebtedness will be used solely in connection with such business or commercial enterprise, and (iii) the proceeds of such indebtedness will not be used for the purchase of registered equity securities within the purview of Regulation U issued by the Board of Governors at the Federal Reserve System.
Maker represents, warrants, and covenants for so long as this Note remains unpaid in full, Maker shall not do any of the following: (a) engage in any business or activity other than those set forth in its Articles of Incorporation (or Certificate of Formation); (b) do any act which would make it impossible to carry on the ordinary business of Maker; (c) borrow money or incur any indebtedness or assume or guaranty any indebtedness of any other entity, other than normal trade accounts and lease obligations incurred in the ordinary course of business; (d) dissolve or liquidate, in whole or in part; (e) consolidate or merge with or into any other entity or convey or
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
transfer or lease its property and assets substantially as an entirety to any entity; (f) institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution or bankruptcy or insolvency proceedings against it, or file a petition seeking or consenting to reorganization or relief under any applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of Maker or a substantial part of property of Maker, or make any assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take company action in furtherance of any such action; or (g) amend the operating agreement or any qualification or certificate of formation of the Limited Liability Company Operating Agreement of the Maker.
In addition Maker shall: (a) maintain books and records and bank accounts separate from those of any other person or entity; (b) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets; (c) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity; (d) hold regular manager and member meetings, as appropriate, to conduct the business of Maker, and observe all other legal formalities; (e) prepare separate tax returns and financial statements, or if part of a consolidated group, then it will be shown as a separate member of such group; (f) allocate and charge fairly and reasonably any common employee or overhead shared with affiliates; (g) transact all business with affiliates on an arms length basis and pursuant to enforceable agreements; (h) conduct business in its own name, and use separate stationery, invoices and checks; (i) not commingle its assets or fund with those of any other person; and (j) not assume, guaranty or pay the debts or obligations of any other person.
Maker represents and warrants to the holder hereof that the obligation evidenced by this Note is an exempted transaction under the Truth-In-Lending Act, 15 U.S.C. 1601, et seq., and that said obligation constitutes a business loan for purposes of the application of any laws that distinguish between consumer loans and business loans and that have as their purpose the protection of consumers. Without limitation of the foregoing, Maker represents, warrants and covenants that the proceeds of the loan evidenced by this Note will be used for business purposes and to secure payment of all amounts due under this Note, the undersigned hereby authorizes, irrevocably, any attorney of any court of record to appear for the undersigned in such court, in term time or vacation, at any time after an event of default hereunder, and confess a judgment, without process, in favor of the holder of this Note, for such amount as may appear to be unpaid thereon, together with costs of collection, including attorneys' fees and disbursements, and to waive and release all errors which may intervene in any such proceedings, and subject to applicable law consent to immediate execution upon such judgment, the undersigned hereby ratifying and confirming all that said attorney may do by virtue hereof.
Any term or provision of this Note which is unenforceable, invalid or contrary to law, or the inclusion of which would affect the validity, legality or enforcement of this Note shall be of no effect, and in such case, all the remaining terms and provisions of this Note shall subsist and shall be fully effective according to the terms of this Note, the same as though any such provision had not been included herein, provided that where the provisions of any such applicable law may be waived, they hereby are waived by Maker to the full extent permitted by law in order that this Note shall be deemed to be a valid and binding Note in accordance with its terms.
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
Time is of the essence with respect to all of the undersigned's obligations and agreements under this Note, the Mortgage and the Other Loan Documents.
If the undersigned shall, at any time, consist of two or more persons or entities, then all the liabilities and obligations of the undersigned hereunder shall be joint and several.
This Note shall be construed for all purposes and enforced in accordance with the laws of the State of Florida. Without limiting the right of the holder hereof to bring any action or proceeding against the undersigned or against property of the undersigned arising out of or relating to this Note (an " Action ") in the courts of other jurisdictions, the undersigned hereby irrevocably submits to the jurisdiction of any (i) any Florida court sitting in Orange County, Florida, or federal court sitting in the Middle District of Florida; and the undersigned hereby irrevocably agrees that any Action may be heard and determined in any such state court or in either such Federal court. The undersigned hereby irrevocably waives any rights it may have to assert that such state courts or federal courts provide either an improper or inconvenient venue. The undersigned hereby irrevocably waives, to the fullest extent possible, the defense or assertion of an inconvenient forum to the maintenance of any Action in any jurisdiction. The undersigned hereby irrevocably agrees that the service of summons and complaint or any process in any Action in any jurisdiction may be served on the undersigned by certified mail, return receipt requested, to the address of the undersigned set forth in the Mortgage or by hand delivery to a person of suitable age and discretion at the undersigned's address set forth in the Mortgage. Such service will be complete on the date such process is so mailed or delivered, and the undersigned will have thirty days from such completion of service in which to respond in the manner provided by law. The undersigned may also be served in any other manner permitted by law, in which event the undersigned's time to respond shall be the time provided by law.
Maker hereby represents and warrants to the holder hereof that Maker has had the opportunity to consult and confer with competent legal counsel of its choice before executing this Note. Maker further represents and warrants to the holder hereof that Maker has read and understood the terms of this Note and intends to be bound hereby.
Except as otherwise herein expressly provided, whenever the consent or approval of the holder hereof is required under this Note, the holder hereof has the right, in its absolute discretion, to withhold or refuse to give such consent or approval.
In the event of any inconsistency between the provisions hereof and any provisions in the Mortgage, in any of the Other Loan Documents or within this Note, the provisions selected by the holder hereof in its sole discretion as the controlling provisions shall control.
The representations, undertakings and covenants made by the undersigned under this Note are, and shall be deemed to be, of continuing force and effect until all indebtedness and obligations of the undersigned under this Note, the mortgagor under the Mortgage and the obligors under the Other Loan Documents have been fully and finally paid and performed.
The singular shall include the plural, and the plural the singular; and pronouns of any gender shall include the other gender.
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
Maker, and each person executing this Note on Maker's behalf, hereby represents and warrants to Payee that: (a) by its execution below, Maker has the full power, authority, and legal right to execute and deliver this Note and that the indebtedness evidenced hereby constitutes a valid and binding obligation of Maker without exception or limitation and (b) Maker is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations, including temporary regulations. Maker represents and warrants that its current tax identification number is _________________.
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
WHEREFORE, Maker, appearing before the notary public whose acknowledgment appears on the following page, has caused this Note to be executed as of the day and year first above written.
|
Fourth Quarter Properties 124, LLC, a Georgia limited liability company
By: Its:
By: /s/ Stanley E. Thomas Name: Stanley E. Thomas Title: Manager
|
|
|
STATE OF GA
)
): SS
COUNTY OF Coweta _
)
I, the undersigned, a Notary Public in and for the County and State aforesaid, do hereby certify that Stanley Thomas , as Manager of __________, the managing member of Fourth Quarter Properties 124, LLC, a Georgia limited liability company, personally known to me to be the same person whose name is subscribed to the foregoing instrument as such ____________ appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act, and as the free and voluntary act of said corporation and limited partnership, for the uses and purposes therein set forth.
Given under my hand notarial seal this 28 _ day of September, 2006.
Notary: /s/ Crystal Clark
[NOTARY SEAL]
Print Name: Crystal Clark
Notary Public, State of Georgia
My commission expires: 3/22/2010
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
EXHIBIT B
LOAN DOCUMENTS
1.
Mortgage and Security Agreement from Borrower to Lender dated as of September 29, 2006, and recorded in the Official Records of Orange County, Florida (as amended, modified, supplemented or restated from time to time, Mortgage A ), with respect to an approximate 96 acre parcel of Property (as defined in Mortgage A).
2.
Mortgage and Security Agreement from Borrower to Lender dated as of September 29, 2006, and recorded in the Official Records of Orange County, Florida (as amended, modified, supplemented or restated from time to time, Mortgage B ), with respect to a 7.86 acre parcel of property (as defined in Mortgage B).
3.
Loan Guaranty dated as of September 29, 2006
4.
Environmental Indemnity Agreement dated as of September 29, 2006
5.
Collateral Assignment of Agreements Affecting Real Estate dated as of September 29, 2006, and recorded in the Official Records of Orange County, Florida (the Collateral Assignment ).
7.
Joint Escrow Closing Agreement dated as of September 29, 2006
8.
Borrowers Closing Certificate dated as of September 29, 2006.
9.
Post Closing Agreement dated as of September 29, 2006.
10.
Collateral Assignment of Development Rights (the Assignment of Development Rights - to be delivered to Lender per terms of Post Closing Agreement).
11.
Deed of Trust (the Deed of Trust - to be delivered to Lender per terms of Post Closing Agreement and recorded as additional security for the Loan against farm property in Georgia).
NCLIB1 307152.3
EXHIBIT C - 1
LEGAL DESCRIPTION - MORTGAGE A
From a 4x4 concrete monument with a 2 inch brass disc stamped RLS 1585 RLS 1819 at the Northwest corner of the Northwest 1/4 of Section 31, Township 23 South, Range 29 East, Orange County, Florida, run South 00 degrees 50 minutes 25 seconds East 160.01 feet along the West boundary of said Northwest 1/4 to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186 on the South right-of-way line of Sand Lake Road (State Road 482) as described and recorded in Official Records Book 235, Page 620, Public Records Of Orange County, Florida; thence run North 89 degrees 49 minutes 21 seconds East 1040.57 feet along said South right-of-way line to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP for the POINT OF BEGINNING; thence continue North 89 degrees 49 minutes 21 seconds East 1049.97 feet along said South right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 00 degrees 50 minutes 25 seconds West 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 49 minutes 21 seconds East 563.13 feet along the South right-of-way line of Sand Lake Road (State Road 482) as described and recorded in Official Records Book 223, Page 321, Public Records Of Orange County, Florida to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 00 degrees 11 minutes 03 seconds West 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 32 minutes 07 seconds East 400.01 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run South 00 degrees 11 minutes 03 seconds East 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 32 minutes 07 seconds East 2066.31 feet along said right-of-way line to a point on a line parallel with and 200.00 feet West of, when measured at right angles to, the East boundary of the Northeast 1/4 of the aforesaid Section 31, said point being a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run South 00 degrees 14 minutes 20 seconds East 987.07 feet along said parallel line to a 4x4 concrete monument with disc stamped JWG LB 1 at the Northeast corner of that certain parcel of land described and recorded in Official Records Book 6983, Pages 2167 through 2172 of the Public Records of Orange County, Florida; thence along the Northerly boundary of said parcel of land with the following courses and distances, run North 89 degrees 54 minutes 59 minutes West 1144.66 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the beginning of a non-tangent curve, concave Northwesterly and having a radius of 1196.00 feet; thence from a tangent bearing of South 15 degrees 58 minutes 41 seconds West run Southwesterly 887.53 feet along the arc of said curve through a central angle of 42 degrees 31 minutes 05 seconds to a 4x4 concrete monument with disc stamped JWG LB 1 at the end of said curve; thence run South 58 degrees 29 minutes 46 seconds West 136.16 feet along a line 50.00 feet Southeast of and parallel with, when measured at right angles to the Southeasterly boundary of that certain Orange County Sewer Line Easement described and recorded in Official Records Book 3400, Page 1743 and Official Records Book 3406, Page 1334 and Official Records Book 3403, Page 495, Public Records of Orange County, Florida to a 4x4 concrete monument with disc stamped JWG LB 1; thence run North 89 degrees 54 minutes 59 seconds West 660.26 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP; thence leaving the aforesaid Northerly boundary, run North 00 degrees 11 minutes 03 seconds West 852.08 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the beginning of a non-tangent curve concave Southerly and having a radius of 700.00 feet; thence from a tangent bearing of North 66 degrees 28 minutes 35 seconds West run Westerly 347.68 feet along the arc of said curve through a central angle of 28 degrees 27 minutes 28 seconds to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the end of said curve; thence run North 86 degrees 47 minutes 22 seconds West 220.59 feet; thence run South 82 degrees 51 minutes 29 seconds West 811.25 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the beginning of a non-tangent curve, concave Southwesterly and having a radius of 2100.00 feet; thence from a tangent bearing of North 04 degrees 01 minutes 10 seconds West run Northwesterly 939.70 feet along the arc of said curve through a central angle of 25 degrees 38 minutes 19 seconds to the Point of Beginning.
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
EXHIBIT C - 2
LEGAL DESCRIPTION - MORTGAGE B
From the Northeast corner of Section 31, Township 23 South, Range 29 East run South 00 degrees 14 minutes 20 seconds East 150.00 feet along the East boundary of the Northeast 1/4 of said Section 31 to a point on the south right-of-way line of State Road 482 (Sand Lake Road) as described in Official Records Book 223, Page 321 of the Public Records of Orange County, Florida; thence run South 89 degrees 32 minutes o7 seconds West 200.00; thence run South 00 degrees 14 minutes 20 seconds East 987.07 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the Northeast corner of that certain parcel of land described and recorded in Official Records Book 6983, Pages 2167 through 2172 of the Public Records of Orange County, Florida; thence along the Northerly boundary of said parcel of land with the following courses and distances, run North 89 degrees 54 minutes 59 minutes West 1144.66 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the beginning of a non-tangent curve, concave Northwesterly and having a radius of 1196.00 feet; thence from a tangent bearing of South 15 degrees 58 minutes 41 seconds West run Southwesterly 887.53 feet along the arc of said curve through a central angel of 42 degrees 31 minutes 05 seconds to a 4x4 concrete monument with disc stamped JWG LB 1 at the end of said curve; thence run South 58 degrees 29 minutes 46 seconds West 136.16 feet along a line 50.00 feet Southeast of and parallel with, when measured at right angles to the Southeasterly boundary of that certain Orange County Sewer Line Easement described and recorded in Official Records Book 3400, Page 1743 and Official Records Book 3406, Page 1334 and Official Records Book 3403, Page 495, Public Records of Orange County, Florida to a 4x4 concrete monument with disc stamped JWG LB 1; thence run North 89 degrees 54 minutes 59 seconds West 169.47 feet to the POINT OF BEGINNING; thence run North 89 degrees 54 minutes 59 seconds West 490.79 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP; thence leaving the aforesaid Northerly boundary, run North 00 degrees 11 minutes 03 seconds West 722.82 feet; thence run South 72 degrees 24 minutes 46 seconds East 213.71 feet to the beginning of a non-tangent curve concave Southwesterly and having a radius of 679.60 feet; thence from a tangent bearing of South 72 degrees 48 minutes 40 seconds East run Southeasterly 288.19 feet along the arc of said curve through a central angle of 24 degrees 17 minutes 49 seconds to the end of said curve and the beginning of a non-tangent curve concave Southwesterly and having a radius of 508.17 feet; thence from a tangent bearing of South 45 degrees 29 minutes 25 seconds East run Southeasterly 250.01 feet along the arc of said curve through a central angle of 28 degrees 11 minutes 19 seconds to the end of said curve and the beginning of a non-tangent curve concave Northwesterly and having a radius of 285.52 feet; thence from a tangent bearing of South 17 degrees 58 minutes 40 seconds East run Southwesterly 339.86 feet along the arc of said curve through a central angle of 68 degrees 11 minutes 58 seconds to the end of said curve and the Point of Beginning.
CONTAINING: 7.860 acres, more or less
NCLIB1 307152.3
= "LAST PAGE ONLY" 1, = 0) 0 = 1 12/12/2005 2:16 PM
EXHIBIT 10.130
PROMISSORY NOTE
Dated as of September 29, 2006
AT: Oak Brook, Illinois
FOR VALUE RECEIVED, the undersigned, Fourth Quarter Properties 124, LLC, a Georgia limited liability company (" Maker ") promises to pay to the order of IA ORLANDO SAND, L.L.C., a Delaware limited liability company (sometimes hereinafter referred to as " Payee "), having its principal place of business at 2901 Butterfield Road, Oak Brook, Illinois 60523, or at such other place or places as the holder hereof may from time to time designate in writing, the principal sum of Forty One Million Four Hundred Seventy Seven Thousand Sixty Two and 84/100 Dollars ($41,477,062.84), or so much thereof as disbursed, together with interest thereon at the rate set forth below from the date of first disbursement until maturity, unless the Default Rate, hereinafter defined, shall apply, as follows:
a.
Interest from the date of the first disbursement through the last day of the month of the first disbursement, both dates inclusive, will be at the rate of nine and one quarter percent (9.25%) per annum (the " Note Rate ") and shall be paid upon the first disbursement of proceeds. Beginning on the first day of the month following the month of the first disbursement and ending upon repayment in full of this Note, interest at the Base Rate, to be paid in advance on the first day of each month (i.e. interest for October, 2006 is due and payable on October 1, 2006).
b.
A final balloon payment of all outstanding principal and all accrued and unpaid interest and all other sums then due and payable under this Note, the Mortgage, hereinafter defined, and the Other Loan Documents, hereinafter defined, shall be paid on December 31, 2006 (" Initial Maturity Date ").
At Closing Maker shall deposit with Payee three (3) months of interest into an interest reserve account (the Interest Reserve ) to be held by Payee, from which Payee shall make payment of interest as it comes due on the Loan at the Note Rate. Maker grants to Payee a first-priority perfected security interest in the Interest Reserve and any and all monies now or hereafter deposited in such Interest Reserve as additional security for payment of the Loan. Until expended or applied in accordance herewith, the Interest Reserve shall constitute additional security for the Loan. Upon the occurrence of an Event of Default, under the this Note or the Other Loan Documents, Payee may, in addition to any and all other rights and remedies available, apply any sums then present in the Interest Reserve to the payment of the Loan in any order in its sole discretion. Upon payment in full of the Loan and all sums due under this Note and the Other Loan Documents, and performance by Maker of all other obligations under the Other Loan Documents, Payee shall disburse to Maker all remaining funds, if any, in the Interest Reserve.
Provided no event of default has ever occurred under the "Mortgage" or any of the "Other Loan Documents" (as hereinafter defined) beyond any applicable grace or cure periods, and if Maker is not then in default or in breach of any of the terms or conditions of this Note, the Mortgage or any Other Loan Documents, either at the time of the Notice of Election, hereafter
defined, or subsequently on or before the first day of an Extension Term, hereinafter defined, and further provided that (i) there is no condemnation commenced or threatened against the Premises which would have a material adverse effect on the value of the Premises, (ii) there is no environmental claim or complaint, pending or threatened, relating to the Premises, the land, the Maker or any contiguous land, other than that previously disclosed by Maker, (iii) no law, regulation, ordinance, restriction or similar matter has been enacted or adopted by any federal, state or local government that would, in Payee's reasonable judgment, materially and adversely affect the proposed use of the Premises, (iv) neither Maker nor any Guarantor is involved in any litigation, pending or threatened bankruptcy, reorganization, receivership or insolvency proceedings, and (v) Payee, in its sole discretion, has determined that there has not been a material deterioration in the net worth of liquid assets of the Maker nor any Guarantor, then Maker may elect to extend the Maturity Date of this Note for not more than one (1) term of three (3) months (the Extension Term and the expiration of the Extension Term, being March 30, 2007, the First Extension Maturity Date ) on the following terms and conditions:
1.
The Extension Term election shall be exercised by Maker serving a separate written notice (a Notice of Election ) to the holder hereof at least fifteen (15) days prior to the expiration of the Initial Maturity Date;
2.
As consideration to the holder hereof for granting such Extension Term, a non-refundable fee (an " Extension Fee ") in the amount of $25,000.00 shall be paid to Payee together with the Notice of Extension.
3.
The interest rate during the Extension Term shall continue to be at the Note Rate.
4.
The Extension Term shall be documented as reasonably required by the holder hereof and may include, without limitation: (i) a statement to the holder hereof from Maker and all guarantors of this Note, which recertifies as true and accurate all covenants, representations and warranties contained in the Mortgage and in the Other Loan Documents; and (ii) a written acknowledgment and consent from all of the guarantors acknowledging and consenting to such Extension Term and reaffirming their respective guaranties.
Notwithstanding anything to the contrary contained herein, if this Note is not repaid in full on the Initial Maturity Date due to Maker's default hereunder, Maker may not thereby evade the payment of an Extension Fee, and a fee in an amount equal to the Extension Fee shall be due as to such Maturity Date and shall be earned and due and payable; provided however, Payee shall not be required to grant any such extension to the Maker unless all conditions to such extension are fully complied with.
Maker acknowledges that the monthly installments required by the terms of this Note will not amortize the principal sum of the indebtedness by either the Initial Maturity Date or the First Extension Maturity Date (each sometimes hereinafter referred to as a "Maturity Date") resulting in a "balloon payment" on any of such maturity dates of the then unpaid principal sum and accrued and unpaid interest thereon. The holder of this Note has made no agreement to refinance such balloon payment.
2
Interest on unpaid principal shall be computed on the basis of a 360 day year using the actual number of days elapsed in any such year as follows: Base Rate or Default Rate, as the case may be, shall be multiplied by the outstanding principal balance of this Note; the resulting product shall be divided by 360, with the resulting quotient multiplied by the number of days elapsed for the period for which interest is payable. All payments required to be made herein shall be made in lawful money of the United States of America.
All monthly payments shall be due and payable on the first day of the month. If any monthly payment due hereunder is not made on or before the 10th day after the date such payment is due, a late payment charge equal to 5% of the delinquent payment shall be due and payable and the interest rate hereunder shall increase to the Default Rate on the entire outstanding principal sum and all accrued and unpaid interest thereon effective the date such payment was due until such default in payment is cured, which cure will include, but not be limited to, payment of such increased interest and the late payment charge. If the final balloon payment of all outstanding principal and all accrued and unpaid interest and all other sums then due and payable under this Note, the Mortgage and the Other Loan Documents is not made on the Maturity Date, a late payment charge equal to 5% of the delinquent payment shall be due and payable and the interest rate hereunder shall increase to the Default Rate on the entire outstanding principal sum and all accrued and unpaid interest thereon until all outstanding principal and all accrued and unpaid interest and all other sums then due and payable under this Note, the Mortgage and the Other Loan Documents is paid in full including, but not limited to, the payment of such increased interest and the late payment charge. No grace period is provided for the payment of principal and interest due on the Maturity Date.
Time is of the essence for all payments and other obligations due under this Note. Maker acknowledges that if any payment required under this Note is not received by Payee within ten (10) days after the same becomes due and payable, Payee will incur extra administrative expenses (i.e., in addition to expenses incident to receipt of timely payment) and the loss of the use of funds in connection with the delinquency in payment. Because, from the nature of the case, the actual damages suffered by Payee by reason of such administrative expenses and loss of use of funds would be impracticable or extremely difficult to ascertain, Maker agrees that five percent (5%) of the amount of the delinquent payment, together with interest accruing on the entire unpaid principal balance of this Note at the Default Rate, as provided above, shall be the amount of damages Payee is entitled to receive upon such breach in compensation therefor. Therefore, Maker shall, in such event, without further demand or notice, pay to Payee, as Payee's monetary recovery for such extra administrative expenses and loss of use of funds, liquidated damages in the amount of five percent (5%) of the amount of the delinquent payment (in addition to interest at the Default Rate). The provisions of this paragraph is intended to govern only the determination of damages in the event of a breach in the performance of Maker to make timely payments hereunder. Nothing in this Note shall be construed as in any way giving Maker the right, express or implied, to fail to make timely payments hereunder, whether upon payment of such damages or otherwise. The right of Payee to receive payment of such liquidated and actual damages, and receipt thereof, are without prejudice to the right of Payee to collect such delinquent payments and all other amounts provided to be paid hereunder or under any of the Mortgage or Other Loan Documents executed by Maker in favor of Payee with respect to the subject matter hereof, or to declare a default hereunder or under the Mortgage or any of the Other Loan Documents.
3
All payments required herein shall be applied first to all sums other than principal and interest due and payable under the terms of this Note, the Mortgage or the Other Loan Documents, next to all accrued and unpaid interest, including all interest at the Default Rate, with the balance of such payments, if any, applied to the outstanding principal sum due under this Note as determined by Lender in its sole and absolute discretion.
Any check, draft, money order or other instrument given in payment of all or any portion of this Note may be accepted by Payee and handled in collection in the customary manner at its option, but the same shall not constitute payment hereunder or diminish any rights of Payee, except to the extent that actual cash proceeds of such instrument are unconditionally received by Payee and applied to this indebtedness as herein provided. Payments received at the Payee's office after 2:00 p.m. local time, will be credited against this Note on the next business day. Payment in full checks are prohibited except pursuant to a separate written agreement between Maker and the holder hereof expressly permitting paid in full checks.
Any prepayment hereunder must include all accrued and unpaid interest (including, without limitation, any interest at the Default Rate due hereunder) and all late payment charges that have accrued and are unpaid through the date of such prepayment and all other sums due hereunder and under the Mortgage and the Other Loan Documents. Only upon payment of (i) the entire outstanding principal balance of this Note, (ii) all late payment charges and default interest, if applicable, (iii) all accrued and unpaid interest (including, without limitation, any interest due hereunder at the Default Rate) then due under this Note, and (iv) all other sums then due hereunder and under the Mortgage and the Other Loan Documents; shall this Note be deemed paid in full and the Mortgage and the Other Loan Documents be cancelled and released. For any prepayment made prior to the Initial Maturity Date, Borrower shall pay as a prepayment premium the difference between the interest paid through the date of prepayment and the interest Payee would have earned on the amount prepaid from the date of prepayment to the Initial Maturity Date (the Future Interest), as determined by Payee in its sole discretion. The calculation of Future Interest shall be based on the outstanding principal balance and the Note Rate at the time of prepayment. Provided that Maker has extended the Term through the Extension Term, Maker may prepay the Loan at any time during the Extension Term without penalty or Future Interest.
The entire outstanding principal sum together with all accrued and unpaid interest thereon, and all other payments then due hereunder and under the Mortgage and Other Loan Documents and together with, to the extent permitted under applicable law, costs and expenses, including reasonable attorneys' fees and disbursements, incurred by the holder in collecting or enforcing payment thereof, shall be and become immediately due and payable at the option of the holder hereof in the event of default in the making of any payments due hereunder after the expiration of any applicable grace or cure period, or in the event the right of acceleration accrues to the holder hereof pursuant to the terms and provisions of the Mortgage or the Other Loan Documents or in the event of any other default under this Note, the Mortgage or under any of the Other Loan Documents, continuing after the expiration of any applicable grace or cure period. The entire outstanding principal sum and all accrued and unpaid interest thereon shall bear interest at the rate of 18.00% per annum (" Default Rate ") effective the date of default, in the event of any default hereunder or under the Mortgage or any Other Loan Documents which is not
4
cured within any applicable grace or cure period, or from and after the date on which the right of acceleration accrues to the holder hereof pursuant to any of the terms of this Note, the Mortgage or the Other Loan Documents, irrespective of whether or not such acceleration is actually declared; provided, however, that in no event shall the Default Rate exceed the maximum rate permitted under applicable law. Maker agrees that interest which has accrued hereunder at the Default Rate shall be paid at the time of and as a condition precedent to the curing of any default hereunder or under the Mortgage or any Other Loan Documents. If such default is not cured prior to the entry of a judgment of foreclosure and sale, such interest accrued at the Default Rate shall be included in such judgment.
The entire outstanding principal sum together with all accrued and unpaid interest thereon, and all other payments then due hereunder and under the Mortgage and Other Loan Documents and together with, to the extent permitted under applicable law, costs and expenses, including reasonable attorneys' fees and disbursements, incurred by the holder in collecting or enforcing payment thereof shall also be and become immediately due and payable at the option of the holder hereof (a) if the Premises, or any part thereof or any interest therein is conveyed, sold (including a sale on an installment basis or pursuant to a land sale contract as more fully set forth in the Mortgage), transferred, leased, encumbered or assigned in any manner whether voluntarily or involuntarily without the prior written consent of the holder hereof; (b) if any representation or warranty of Maker or any guarantor, made herein, in the Mortgage or any Other Loan Documents, 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; or (c) in the event of any other prohibited transfer or any other event described in the Mortgage or any Other Loan Documents causing acceleration of the Maturity Date of this Note or (d) in the event that any interest in Borrower is transferred or conveyed.
The remedies of the holder hereof as provided herein or in the Mortgage or in any Other Loan Documents shall be cumulative and concurrent, and may be pursued singularly, successively or together, at the sole discretion of the holder hereof, and may be exercised as often as occasion therefor shall arise. The failure by the holder hereof to exercise any rights, powers, or remedies in this Note provided, including the right to accelerate the Maturity Date of this Note, upon the occurrence of one or more events of default under this Note, the Mortgage or any of the Other Loan Documents shall not constitute a waiver of the right to exercise the same or any other right, power, or remedy at any subsequent time in respect to the same event of default or any other event of default. The acceptance by the holder of this Note of any payment after the date such payment was due and any act of omission or commission by the holder hereof, including specifically any failure to exercise any right, remedy or recourse, shall not constitute a waiver of the right to exercise any rights, powers, or remedies in this Note provided at that time, or any subsequent time, or nullify any prior exercise of any right, power, or remedy without the written consent of the holder of this Note. Except as may be otherwise specifically required herein, notice of the exercise of any right, power or remedy granted to the holder hereof by this Note is not required to be given.
Maker shall pay on demand all expenses and costs, including fees and out of pocket expenses of attorneys and expert witnesses and costs of investigation, incurred by Lender as a result of any default under this Note or in connection with efforts to collect any amount due under this Note, or to enforce the provisions the Mortgage or the Other Loan Documents,
5
including those incurred in post judgment collection efforts, in any bankruptcy proceeding (including any action for relief from the automatic stay of any bankruptcy proceeding), or in any judicial or non judicial foreclosure proceeding including any appellate proceedings and review of tenant estoppel letters and subordination, attornment and non-disturbance agreements). Interest shall accrue on any judgment obtained by Lender in connection with the enforcement or collection of this Note until such judgment amount is paid in full at a rate equal to the greater of (a) the Default Rate or (b) the legal rate applicable to judgments within such jurisdiction; provided, however, that interest shall not accrue at a rate in excess of the maximum rate of interest, if any, which may be charged or collected from Maker under applicable law.
The liability of each of the Makers hereunder shall be primary, direct, joint, and several, and none of the Makers shall be deemed a surety, accommodation maker, or guarantor. The liability of each of the Makers shall not be adversely affected by (a) modification, extension, renewal, substitution or replacement of this Note, the Mortgage and any of the Other Loan Documents; (b) the extension of additional credit separate from this transaction by Payee; (c) the surrender, release, renewal, extension, sale exchange, or other disposition of all or any part of the collateral securing this Note or the acceptance of any additional or substituted collateral for this Note; (d) Payee's failure to protect any such collateral from waste, diminution in value, or otherwise; (e) Payee's purchase of any such collateral at judicial or other sale, or any subsequent resale at public or private sale; (f) any extension of time or any other indulgence granted by Payee under this Note, the Mortgage and any of the Other Loan Documents; (g) any failure or delay by Payee in attempting to enforce any of its rights or remedies under this Note, the Mortgage and any of the Other Loan Documents; (h) Payee's proceeding against fewer than all parties liable under this Note; (i) Payee's release, settlement, or compromise of its claim against any other party liable on this Note; or (j) the occurrence of any other event which might otherwise operate as a discharge under principles of suretyship.
Each Maker waives all rights to seek contribution, indemnification, or other form of reimbursement from the other Makers or any other person liable under this Note, including any rights of subrogation to the rights of Payee. In the event any payment on this Note is held to constitute a preference under the bankruptcy laws, the liability of each Maker shall automatically be revived to the full extent of such payment.
This Note is secured by a First Mortgage and Security Agreement (" Mortgage ") encumbering certain real estate, and the improvements thereon, situated in Orange County, Florida, as more particularly described in the Mortgage, and which Mortgage also grants a security interest in Equipment and intangibles, if any, as defined in the Mortgage (such real estate, improvements, Equipment and intangibles being herein collectively referred to as the " Premises ". In addition to the Mortgage, this Note is also secured by other loan documents including but not limited to an Assignment of Leases and Rents, a Collateral Assignment of Agreements Affecting Real Estate, a Loan Guaranty Agreement and an Environmental Guaranty (collectively, " Other Loan Documents "). The terms and provisions of, and the representations contained in, the Mortgage and the Other Loan Documents are hereby incorporated herein by reference to the same extent and with like effect as if the terms and provisions thereof and representations therein were recited verbatim herein. Any default under the Mortgage or Other Loan Documents shall be deemed to constitute a default hereunder. All notices which may be
6
required hereunder shall be sufficiently served by delivering same as provided and at the addresses appearing in the Mortgage for the service of notice.
As to this Note and the Mortgage and the Other Loan Documents securing the indebtedness evidenced by this Note, the undersigned and the successors, transferees and assigns thereof, and all guarantors and endorsers (i) severally waive all applicable exemption rights, whether under State Constitution, homestead laws, other statutes or otherwise, and also severally waive valuation and appraisement, presentment, demand for payment, dishonor and notice of dishonor, protest and notice of protest and nonpayment, diligence in collection and notice of the intention to accelerate, and (ii) expressly agree that the maturity of this Note, or any payment hereunder, may be extended from time to time without in any way affecting the liability of the undersigned, guarantors or endorsers. Except as may be expressly stated herein or in the Mortgage securing this Note, the undersigned hereby waives all defenses of any kind or nature, real and personal, waives all rights of set off of any kind or nature, and declares that the holder hereof may negotiate and sell this Note free of all such defenses and rights of set off and without notice, and that this Note shall be fully paid when due.
Maker is and shall be obligated to pay principal, interest and any and all other amounts which become payable hereunder or under the Mortgage or under the Other Loan Documents absolutely and unconditionally and without any abatement, postponement, diminution or deduction and without any reduction for counterclaim or set off. In the event that at any time any payment received by the holder hereof shall be deemed by a court of competent jurisdiction or have been a voidable preference or fraudulent conveyance under any bankruptcy, insolvency or other debtor relief law, that the obligation to make such payment shall survive any cancellation or satisfaction of this Note or return thereof to maker and shall not be discharged or satisfied with any prior payment thereof of cancellation of this Note, but shall remain a valid and binding obligation enforceable in accordance with the terms and provisions hereof, and such payment shall be immediately due and payable upon demand.
No extension of the time for the payment of this Note or any installment hereof made by agreement by the holder hereof with any person now or hereafter liable for the payment of this Note shall operate to release, discharge, modify, change or affect the original liability under this Note, either in whole, or in part, of the Maker or any successor, transferee or assign of Maker or any guarantors or endorsers.
If at any time or times hereafter the holder of this Note employs counsel for advice with respect to a default by the undersigned, or guarantor, if any, of this Note, or to intervene, file a petition, answer, motion or other pleading in any suit or proceeding relating to this Note, or to attempt to collect this Note from or to enforce this Note against the undersigned or any other person or entity obligated for the payment or performance of this Note, then, in any of such events, all of the attorneys' fees arising from such services and all expenses, costs and charges relating thereto, shall be additional indebtedness owing hereunder by the undersigned to the holder of this Note payable on demand.
This Note and all the provisions hereof shall extend to, be binding upon and inure to the benefit of the undersigned, its successors, transferees and assigns, any future owner of the Premises or any part thereof, and the Payee and any and all persons hereafter owning or holding
7
from time to time this Note, and their respective heirs, legal representatives, successors, transferees and assigns.
Any interest computation under this Note (or under any other instrument executed in connection with or as security for the payment hereof) shall be at not more than the maximum legal rate permitted by applicable law and in the event it should be held that interest payable under this Note (or under any other instrument executed in connection with or as security for the payment hereof) is in excess of the maximum permitted by law, the interest chargeable hereunder (or under any other instrument executed in connection with or as security for the payment hereof) shall be reduced to the maximum amount permitted by applicable law. If the holder of this Note shall collect interest which is in excess of the maximum amount permitted by law, all such sums deemed to constitute interest in excess of the maximum amount permitted by applicable law shall, at the option of the holder hereof, be refunded to Maker or credited to the payment of other amounts due under the Mortgage or Other Loan Documents, or to the principal of this Note, as the holder hereof determines.
Maker agrees to pay the effective rate of interest which is the total of interest computed at the rate stated herein plus any additional interest resulting from any other payments in the nature of interest, including without limitation, any initial service charge, extension fees, maintenance fees, late charge or default interest to the extent that such charges may be deemed includable in interest for any purpose, expressed as a rate of interest computed on the principal balance from time to time outstanding and the number of days elapsed from the date of disbursement until the date of payment.
Funds representing proceeds of the indebtedness evidenced hereby which are disbursed for any purpose by any holder hereof to the undersigned, or to any escrow or otherwise for the benefit of the undersigned, whether by mail, wire transfer or other delivery, shall be deemed principal outstanding hereunder and to have been received by the undersigned as of the date of such mailing, wire transfer or other delivery, and interest shall accrue and be payable upon such funds from and after the date of such mailing, wire transfer or delivery until repaid, notwithstanding the fact that such funds may not at any time have been remitted by any escrows to the undersigned or for its benefit.
Maker represents, warrants and covenants that (i) the indebtedness evidenced by this Note is being obtained for the purpose of acquiring and carrying on a business or commercial enterprises, (ii) all proceeds of such indebtedness will be used solely in connection with such business or commercial enterprise, and (iii) the proceeds of such indebtedness will not be used for the purchase of registered equity securities within the purview of Regulation U issued by the Board of Governors at the Federal Reserve System.
Maker represents, warrants, and covenants for so long as this Note remains unpaid in full, Maker shall not do any of the following: (a) engage in any business or activity other than those set forth in its Articles of Incorporation (or Certificate of Formation); (b) do any act which would make it impossible to carry on the ordinary business of Maker; (c) borrow money or incur any indebtedness or assume or guaranty any indebtedness of any other entity, other than normal trade accounts and lease obligations incurred in the ordinary course of business; (d) dissolve or liquidate, in whole or in part; (e) consolidate or merge with or into any other entity or convey or
8
transfer or lease its property and assets substantially as an entirety to any entity; (f) institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution or bankruptcy or insolvency proceedings against it, or file a petition seeking or consenting to reorganization or relief under any applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of Maker or a substantial part of property of Maker, or make any assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take company action in furtherance of any such action; or (g) amend the operating agreement or any qualification or certificate of formation of the Limited Liability Company Operating Agreement of the Maker.
In addition Maker shall: (a) maintain books and records and bank accounts separate from those of any other person or entity; (b) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets; (c) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity; (d) hold regular manager and member meetings, as appropriate, to conduct the business of Maker, and observe all other legal formalities; (e) prepare separate tax returns and financial statements, or if part of a consolidated group, then it will be shown as a separate member of such group; (f) allocate and charge fairly and reasonably any common employee or overhead shared with affiliates; (g) transact all business with affiliates on an arms length basis and pursuant to enforceable agreements; (h) conduct business in its own name, and use separate stationery, invoices and checks; (i) not commingle its assets or fund with those of any other person; and (j) not assume, guaranty or pay the debts or obligations of any other person.
Maker represents and warrants to the holder hereof that the obligation evidenced by this Note is an exempted transaction under the Truth-In-Lending Act, 15 U.S.C. 1601, et seq., and that said obligation constitutes a business loan for purposes of the application of any laws that distinguish between consumer loans and business loans and that have as their purpose the protection of consumers. Without limitation of the foregoing, Maker represents, warrants and covenants that the proceeds of the loan evidenced by this Note will be used for business purposes and to secure payment of all amounts due under this Note, the undersigned hereby authorizes, irrevocably, any attorney of any court of record to appear for the undersigned in such court, in term time or vacation, at any time after an event of default hereunder, and confess a judgment, without process, in favor of the holder of this Note, for such amount as may appear to be unpaid thereon, together with costs of collection, including attorneys' fees and disbursements, and to waive and release all errors which may intervene in any such proceedings, and subject to applicable law consent to immediate execution upon such judgment, the undersigned hereby ratifying and confirming all that said attorney may do by virtue hereof.
Any term or provision of this Note which is unenforceable, invalid or contrary to law, or the inclusion of which would affect the validity, legality or enforcement of this Note shall be of no effect, and in such case, all the remaining terms and provisions of this Note shall subsist and shall be fully effective according to the terms of this Note, the same as though any such provision had not been included herein, provided that where the provisions of any such applicable law may be waived, they hereby are waived by Maker to the full extent permitted by law in order that this Note shall be deemed to be a valid and binding Note in accordance with its terms.
9
Time is of the essence with respect to all of the undersigned's obligations and agreements under this Note, the Mortgage and the Other Loan Documents.
If the undersigned shall, at any time, consist of two or more persons or entities, then all the liabilities and obligations of the undersigned hereunder shall be joint and several.
This Note shall be construed for all purposes and enforced in accordance with the laws of the State of Florida. Without limiting the right of the holder hereof to bring any action or proceeding against the undersigned or against property of the undersigned arising out of or relating to this Note (an " Action ") in the courts of other jurisdictions, the undersigned hereby irrevocably submits to the jurisdiction of any (i) any Florida court sitting in Orange County, Florida, or federal court sitting in the Middle District of Florida; and the undersigned hereby irrevocably agrees that any Action may be heard and determined in any such state court or in either such Federal court. The undersigned hereby irrevocably waives any rights it may have to assert that such state courts or federal courts provide either an improper or inconvenient venue. The undersigned hereby irrevocably waives, to the fullest extent possible, the defense or assertion of an inconvenient forum to the maintenance of any Action in any jurisdiction. The undersigned hereby irrevocably agrees that the service of summons and complaint or any process in any Action in any jurisdiction may be served on the undersigned by certified mail, return receipt requested, to the address of the undersigned set forth in the Mortgage or by hand delivery to a person of suitable age and discretion at the undersigned's address set forth in the Mortgage. Such service will be complete on the date such process is so mailed or delivered, and the undersigned will have thirty days from such completion of service in which to respond in the manner provided by law. The undersigned may also be served in any other manner permitted by law, in which event the undersigned's time to respond shall be the time provided by law.
Maker hereby represents and warrants to the holder hereof that Maker has had the opportunity to consult and confer with competent legal counsel of its choice before executing this Note. Maker further represents and warrants to the holder hereof that Maker has read and understood the terms of this Note and intends to be bound hereby.
Except as otherwise herein expressly provided, whenever the consent or approval of the holder hereof is required under this Note, the holder hereof has the right, in its absolute discretion, to withhold or refuse to give such consent or approval.
In the event of any inconsistency between the provisions hereof and any provisions in the Mortgage, in any of the Other Loan Documents or within this Note, the provisions selected by the holder hereof in its sole discretion as the controlling provisions shall control.
The representations, undertakings and covenants made by the undersigned under this Note are, and shall be deemed to be, of continuing force and effect until all indebtedness and obligations of the undersigned under this Note, the mortgagor under the Mortgage and the obligors under the Other Loan Documents have been fully and finally paid and performed.
The singular shall include the plural, and the plural the singular; and pronouns of any gender shall include the other gender.
10
Maker, and each person executing this Note on Maker's behalf, hereby represents and warrants to Payee that: (a) by its execution below, Maker has the full power, authority, and legal right to execute and deliver this Note and that the indebtedness evidenced hereby constitutes a valid and binding obligation of Maker without exception or limitation and (b) Maker is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations, including temporary regulations. Maker represents and warrants that its current tax identification number is _________________.
11
WHEREFORE, Maker, appearing before the notary public whose acknowledgment appears on the following page, has caused this Note to be executed as of the day and year first above written.
|
Fourth Quarter Properties 124, LLC, a Georgia limited liability company
By: Its:
By: /s/ Stanley E. Thomas Name: Stanley E. Thomas Title: Manager
|
|
|
STATE OF GA
)
): SS
COUNTY OF Coweta _
)
I, the undersigned, a Notary Public in and for the County and State aforesaid, do hereby certify that Stanley Thomas , as Manager of __________, the managing member of Fourth Quarter Properties 124, LLC, a Georgia limited liability company, personally known to me to be the same person whose name is subscribed to the foregoing instrument as such ____________ appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act, and as the free and voluntary act of said corporation and limited partnership, for the uses and purposes therein set forth.
Given under my hand notarial seal this 28 _ day of September, 2006.
Notary: /s/ Crystal Clark
[NOTARY SEAL]
Print Name: Crystal Clark
Notary Public, State of Georgia
My commission expires: 3/22/2010
12
EXHIBIT 10.131
This instrument prepared by
and should be returned to:
Charles J. Benvenuto, P.C.
2901 Butterfield Road
Oak Brook, Illinois 60523
Attn: Eugene J. Filice, Esq.
ABOVE SPACE IS FOR RECORDING PURPOSES ONLY
FIRST MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE, made as of the 29 th day of September, 2006, between Fourth Quarter Properties 124, LLC, a Georgia limited liability company, having an office at 45 Ansley Drive
Newnan, Georgia 30263 (the " Mortgagor "), and IA Orlando Sand, L.L.C., a Delaware limited liability company (the " Mortgagee "), having its principal offices at 2901 Butterfield Road, Oak Brook, Illinois 60523.
WITNESSETH, that to secure the payment when and as due and payable of an indebtedness in the sum of Forty One Million Four Hundred Seventy Seven Thousand Sixty Two and 84/100 Dollars ($41,477,062.84) in lawful money of the United States to be paid with interest thereon in installments, the last of which is due and payable on December 1, 2006 (subject to Mortgagors option to extend the maturity date for one, three month extension term, in which event the maturity date may be extended until March 30, 2007, subject to the conditions set forth in the Note as hereafter defined), according to a certain note(s) or obligation(s) (collectively the " Note ") bearing even date herewith from Mortgagor to Mortgagee, and any extensions and renewals thereof, in whole or in part, and any and all other sums which may be at any time due or owing or required to be paid as herein or in the Note or in other instruments securing the Note provided, and to secure the performance and observance of all the covenants, provisions and agreements herein and in the Note contained (whether or not the Mortgagor is personally liable for such payment, performance and observance) and in consideration of the premises and Ten Dollars ($10.00) in hand paid by the Mortgagee to the Mortgagor, and for other good and valuable considerations, the receipt and sufficiency of all of which are hereby acknowledged by the Mortgagor, the Mortgagor hereby warrants, grants, sells, conveys, mortgages, pledges and assigns to the Mortgagee and to its successors and assigns:
All that certain lot, piece or parcel of land together with all buildings and improvements of every kind and description, heretofore, or hereafter erected or placed thereon, situate, lying and being in Orange County, State of Florida, as described in Exhibit "A" attached hereto and made a part hereof (the " Premises ").
TOGETHER with all and singular the tenements, hereditaments, privileges, easements, rights of way, strips and gores of land, licenses and appurtenances now or hereafter thereunto belonging or in any way appertaining, and the reversion or reversions, remainder and remainders,
rents, revenues, income, receipts, issues and profits thereof; and also all the estate, right, title, interest, property, claim and demand whatsoever of the Mortgagor, of, in and to the same and of, in and every part and parcel thereof.
TOGETHER with all right, title and interest of the Mortgagor, if any, in and to common areas and access roads on adjacent properties heretofore or hereafter granted to Mortgagor; in and to the land lying in the bed of any street, road, alley or avenue, opened or proposed or hereafter vacated, in front of or adjoining the Premises to the center line thereof or used to provide a means of access to the Premises; in and to adjacent sidewalks, alleys, streets and vaults and all underground and overhead passageways; and any and all rights and interests of every name and nature now or hereafter owned by the Mortgagor forming a part of and/or used in connection with the Premises and/or the operation and convenience of the buildings and improvements located thereon; and in and to the air space and the rights of use thereof above the Premises; and in and to water and mineral rights.
TOGETHER with all machinery, apparatus, equipment, fittings, fixtures, building materials, and articles of personal property of every kind and nature whatsoever, other than consumable goods, now or hereafter located in or upon the Premises or any part thereof and used or usable in connection with any present or future operation of the Premises (hereinafter called " Equipment ") and now owned or hereafter acquired by the Mortgagor, including, but without limiting the generality of the foregoing, all heating, lighting, laundry, incinerating and power equipment, engines, pipes, pumps, tanks, motors, conduits, switchboards, plumbing, lifting, cleaning, fire-prevention, fire-extinguishing, refrigerating, ventilating and communications apparatus and electronic monitoring equipment, air-cooling and air-conditioning apparatus, elevators, escalators, shades, awnings, screens, storm doors and windows, stoves, wall beds, refrigerators, attached cabinets, partitions, ducts and compressors, all window and structural cleaning rigs, and all renewals, replacements or articles in substitution therefor of any of the Equipment and all of the right, title and interest of the Mortgagor in and to any Equipment which may be subject to any title retention or security agreement superior in lien to the lien of this Mortgage. It is understood and agreed that all Equipment is appropriated to the use of the Premises and, whether affixed or annexed or not, for the purpose of this Mortgage shall be deemed conclusively to be conveyed hereby. The Mortgagor agrees to execute and deliver from time to time, such further instruments as may be requested by the Mortgagee to confirm the lien of this Mortgage on any Equipment.
TOGETHER with any and all awards or payments, judgments, settlements and other compensation hereafter made including interest thereon, and the right to receive the same, which may be made with respect to the Premises as a result of (a) the exercise of the right of condemnation or eminent domain, or (b) the alteration of the grade of any street, or (c) any other injury to or decrease in the value of the Premises or to any part thereof or any building or other improvement now or hereafter located thereon or easement or other appurtenance thereto to the extent of all amounts which may be secured by this Mortgage at the date of receipt by the Mortgagee of any such award or payment and of the counsel fees, costs and disbursements incurred by the Mortgagee in connection with the collection of such award or payment. The Mortgagor agrees to execute and deliver, from time to time, such further instruments as may be requested by the Mortgagee to confirm such assignment to the Mortgagee of any such award or payment.
2
TOGETHER with all leasehold estates, right, title and interest of Mortgagor in any and all leases, subleases, management agreements, arrangements, concessions, or agreements, written or oral, relating to the use and occupancy of the Premises and improvements or any portion thereof located thereon, now or hereafter existing or entered into including without limitation all security deposits and all deposits and escrows for real estate taxes.
TOGETHER with all goodwill, trade names, option rights, purchase contracts, books and records and general intangibles relating to the Premises, the improvements thereon or the Equipment and all accounts, contract rights, instruments, chattel paper and other rights of Mortgagor for payment of money, for property sold or lent, for services rendered, for money lent, or for advances or deposits made, and any other intangible property of the Mortgagor related to the Premises or the improvements thereon or the Equipment, and all accounts and monies held in possession of Mortgagee for the benefit of Mortgagor.
TOGETHER with all rents, issues and profits, royalties, avails, income and all other benefits derived or owned by Mortgagor directly or indirectly from the Premises or improvements thereof for so long and during all such times as Mortgagor may be entitled thereto (which are pledged primarily and on a parity with the Premises and not secondarily).
TOGETHER with all the estate, interest, right, title, other claim or demand, including claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Mortgagor now has or may hereinafter acquire in the Premises.
TO HAVE AND TO HOLD the above warranted, granted, sold, conveyed, mortgaged, pledged, assigned and described Premises and all the buildings, improvements, appurtenances, Equipment, intangibles, properties, rights, interests, rents, issues, profits and all other compensation hereinabove described, unto the Mortgagee, its successors and assigns, forever, Mortgagor hereby releasing and waiving all rights under and by virtue of the homestead provisions of the State of Florida and all right to retain possession of the Premises after any default in or breach of the conditions, covenants or provisions herein contained.
PROVIDED ALWAYS, and these presents are upon this express condition, that if the Mortgagor and the heirs, executors, administrators, successors or assigns of the Mortgagor shall well and truly pay unto the Mortgagee, its successors or assigns, the sum of money stated in the Note, the interest thereon, and any and all other sums secured hereby, at the time and in the manner set forth in the Note, and shall well and truly abide by and comply with each and every covenant and condition set forth herein or in the Note, and in any and all other instruments evidencing or securing the Note (collectively referred to herein as the " Other Loan Documents "), then these presents and the estate hereby granted shall cease, determine and be void.
3
AND the Mortgagor covenants with the Mortgagee as follows:
1.
Duty of Payment
. That the Mortgagor will duly and promptly pay each and every installment of the principal of and interest on the Note, and all other sums hereby secured, as the same become due, and will duly perform and observe all of the covenants, agreements and provisions herein or in the Note or in the Other Loan Documents provided on the part of the Mortgagor to be performed and observed.
1)
i)
Insurance and Casualty . That the Mortgagor will keep the buildings and all other improvements on the Premises, and the Equipment, insured for the benefit of the Mortgagee against loss, damage or destruction by fire, flood ( if available and required under the National Flood Act of 1986, as amended), lightning, windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles and smoke as provided by the Standard Fire and Extended Coverage Policy and all other risks of direct physical loss as insured against under Special Extended Coverage Endorsement all in amounts approved from time to time by the Mortgagee but not less than the amount of the Note or 100% of full replacement cost, whichever is greater, together with an agreed amount endorsement with separate values for each building and improvement, and when and to the extent required by the Mortgagee, against any other risk insured against by persons operating like properties in the locality of the Premises; the Policy shall include coverage against acts of terrorism; that prior to completion of construction of the improvements on the Premises, Mortgagor shall provide Builder's Risk Insurance in such amounts and in the form required by Mortgagee; that all insurance herein provided for shall be in form, content, amounts and in companies approved by the Mortgagee with all premiums thereon paid not less than yearly in advance with evidence of payment thereof delivered to Mortgagee on demand; that regardless of the types or amounts of insurance required and approved by the Mortgagee, the Mortgagor will assign and deliver to the Mortgagee all policies of insurance which insure against any loss, damage or destruction to the Premises and the Equipment, as collateral and further security for the payment of the money secured by this Mortgage, with loss payable to the Mortgagee pursuant to the Illinois Standard or other mortgagee clause satisfactory to the Mortgagee without contribution, and notwithstanding any acts or omissions of Mortgagor and with standard waiver of subrogation endorsements; that not less than thirty (30) days prior to the expiration dates of each policy required of the Mortgagor pursuant to this Article, the Mortgagor will deliver to the Mortgagee a renewal policy or policies marked "premium paid" or accompanied by other evidence of payment satisfactory to the Mortgagee; and that the aforesaid insurance shall not be subject to cancellation except after at least thirty (30) days' prior written notice to Mortgagee. The full replacement cost of buildings, improvements and Equipment shall be determined from time to time at Mortgagee's request by an insurance appraiser selected by Mortgagee and paid for by Mortgagor. The insurance appraiser shall submit a written report of his appraisal and if said report shows that the buildings, improvements and Equipment are not insured as herein required, Mortgagor shall promptly obtain such additional insurance as is required. No policy of insurance required hereunder shall contain deductible provisions which have not been approved by Mortgagee. In addition to the insurance coverage hereinabove required, Mortgagor shall maintain loss of rent insurance in an amount equal to not less than 100% of the annual gross rental of the Premises based on 100% occupancy. Mortgagor shall not carry separate insurance concurrent in kind or form and contributing in the event of loss, with any insurance required hereby. Mortgagor shall also obtain and maintain for itself, its beneficiaries and Mortgagee, broad form comprehensive general liability insurance, property
4
damage insurance and workmen's compensation insurance, in each case, in form, and content and amount satisfactory to Mortgagee. Mortgagor shall also obtain and maintain such other insurance with respect to the Premises and the buildings, improvements and Equipment thereon in such amounts and against such insurable hazards as Mortgagee from time to time may require, including, without limitation, builder's risk insurance, sinkhole, boiler and machinery insurance, and insurance against flood risk. Mortgagor shall furnish to Mortgagee, upon request, a certificate signed by an authorized individual containing a detailed list of the insurance policies then outstanding and in force on the Premises. In the event of a foreclosure of this Mortgage the purchaser of the Premises shall succeed to all the rights of the Mortgagor, including any right to unearned premiums, in and to all policies of insurance assigned and delivered to the Mortgagee pursuant to the provisions of this Article and Mortgagor hereby irrevocably constitutes and appoints Mortgagee as the true and lawful attorney-in-fact of Mortgagor with full power of substitution for Mortgagor and in its name, place and stead to so assign each policy and all such rights. If the Mortgagor defaults in so insuring the Premises or in so assigning and delivering the policies, the Mortgagee may, at the option of the Mortgagee, obtain such insurance to protect Mortgagee's interest in the Premises using such carriers and agencies as Mortgagee shall elect from year to year and pay the premiums therefor, and Mortgagor will reimburse the Mortgagee for any premiums so paid, with the interest at the Default Rate stated in Article 5 hereof from the time of payment, within thirty (30) days after the date Mortgagee gives Mortgagor notice of the placement of such insurance, and the same shall be secured by this Mortgage. The insurance purchased by Mortgagee may, but need not, protect Mortgagor's interests. The coverage that Mortgagee purchases may not pay any claim that Mortgagor makes or any claim that is made against Mortgagor in connection with the Premises. Mortgagor may later cancel any insurance purchased by Mortgagee, but only after providing Mortgagee with evidence that Mortgagor has obtained insurance as required by this Mortgage. If Mortgagee purchases insurance for the Premises, Mortgagor will be responsible for the costs of that insurance, including interest at the Default Rate and any other charges Mortgagee may impose in connection with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance. The cost of the insurance shall be additional indebtedness evidenced by the Note and secured by this Mortgage. Mortgagor acknowledges that the cost of the insurance obtained by Mortgagee may be more than the cost of such insurance Mortgagor may be able to obtain on its own.
B.
Repair of Damage . If any building or improvement on the Premises or any of the Equipment shall be destroyed or damaged in whole or in part, by fire or other casualty (including any casualty for which insurance was not obtained or obtainable) of any kind or nature, ordinary or extraordinary, foreseen or unforeseen, Mortgagor shall give to Mortgagee immediate notice thereof. Mortgagor, at its own cost and expense, whether or not such damage or destruction shall have been insured, and whether or not insurance proceeds, if any, shall be sufficient for the purpose, shall promptly repair, alter, restore, replace and rebuild the same, at least to the extent of the value and as nearly as possible to the character of the building or improvement or Equipment existing immediately prior to such occurrence, provided, however, Mortgagor shall not be required to rebuild or repair any damaged portion of the Premises if Mortgagee received the insurance proceeds relating to such damaged portion and did not permit Mortgagor to use such proceeds for rebuilding. Mortgagee shall in no event be called upon to repair, alter, replace, restore or rebuild such Premises or Equipment, or any portion thereof, nor to pay any of the costs or expenses thereof. Mortgagee is authorized to settle and adjust any claim under such insurance policies which insure against such risk; provided, however, so long
5
as Mortgagor is not in default of this Mortgage, Mortgagor may settle and adjust any claim under such policies in an amount equal to or less than $25,000.00, and apply the proceeds thereof to the repair, restoration or rebuilding of the damaged building or improvement or Equipment. In all events, Mortgagee is authorized to collect and receipt for any such insurance monies, and such insurance proceeds, at the option of the Mortgagee, may be: (i) applied in reduction of the indebtedness secured hereby, whether due or not, and in the order determined by Mortgagee; or (ii) held by Mortgagee and applied to pay for the cost of repair, rebuilding or restoration of the buildings and other improvements or Equipment on the Premises. In the event, in Mortgagee's sole and absolute discretion, the proceeds are to be made available to Mortgagor for the cost of repair, Mortgagee shall be entitled to reimburse itself to the extent of the reasonably necessary and proper expenses paid or incurred by Mortgagee in the collection and administration of such monies, including attorney's fees. (Any funds received by Mortgagee from insurance provided by Mortgagor less any funds Mortgagee is entitled to reimburse itself shall be defined herein as " Net Insurance Proceeds "). If, in Mortgagee's sole and absolute discretion, the Net Insurance Proceeds are to be made available to the Mortgagor for the cost of repair, rebuilding, and restoration, any surplus which may remain out of the Net Insurance Proceeds after payment of such cost of repair, rebuilding and restoration and the reasonable charges of the escrowee by disbursing such funds, if applicable, shall, at the option of the Mortgagee, be applied on account of the indebtedness hereby secured, whether due or not, and in the order determined by Mortgagee or paid to any party entitled thereto as the same appear on the records of the Mortgagee. In the event the Net Insurance Proceeds are to be made available to Mortgagor for the cost of repair, such proceeds shall be disbursed to Mortgagor pursuant to such terms and conditions as Mortgagee may in its sole discretion require. In the event Mortgagee elects to apply the Net Insurance Proceeds to the payment of the indebtedness secured by this Mortgage and such Net Insurance Proceeds do not discharge the payment of the indebtedness secured by this Mortgage in full, then at Mortgagee's option the entire amount of the indebtedness secured by this Mortgage shall become immediately due and payable. If while any insurance proceeds or condemnation awards are held by or for Mortgagee to reimburse Mortgagor or any lessee for the costs of repair, rebuilding or restoration of building(s) or other improvements on the Premises, Mortgagee shall be or become entitled to accelerate the maturity of the indebtedness, then and in such event, Mortgagee shall be entitled to apply all such insurance proceeds and condemnation awards then held by or for it in reduction of the indebtedness secured hereby.
3.
No Removal
. That no building, improvement or any of the Equipment of material value now or hereafter covered by the lien of this Mortgage shall be removed, demolished or materially altered or enlarged, nor shall any new building or improvement be constructed without prior written notice to the Mortgagee, except that the Mortgagor shall have the right, without such notice, to remove and dispose of, free from the lien of this Mortgage, such Equipment as from time to time may become worn out or obsolete, provided that either (a) simultaneously with or prior to such removal any such Equipment shall be replaced with other Equipment of a value at least equal to that of the replaced Equipment and free from any title retention or security agreement or other encumbrance, and by such removal and replacement the Mortgagor shall be deemed to have subjected such equipment to the lien of this Mortgage, or (b) any net cash proceeds received from such disposition shall be paid over promptly to the Mortgagee to be applied to the last installments due on the indebtedness secured without any charge for prepayment.
6
4.
Acceleration
. That the entire principal sum together with all accrued and unpaid interest thereon and any additional sums which this Mortgage secures shall become immediately due and payable at the option of the Mortgagee (a) if default be made in the due and punctual payment of the Note, or any installment due in accordance with the terms thereof, either of principal or interest or in the payment of any other sum required to be paid by Mortgagor or the maker of the Note as set forth in the Note or pursuant to the terms of any other loan document executed in connection with this Mortgage or the indebtedness secured hereby, and any such default continues after the expiration of any applicable grace or cure period; or (b) after default in the payment of any tax, water rate or assessment for five (5) days after notice and demand; or (c) after default either in assigning and delivering the policies of insurance herein described or referred to, or in reimbursing the Mortgagee for premiums paid on such insurance, as herein provided; or (d) after default upon request in furnishing a statement of the amount due on this Mortgage and whether any offsets or defenses exist against the Mortgage debt, as hereinafter provided; or (e) after default in the payment of any installment which may be then due or delinquent of any assessment for local improvement which may now or hereafter affect the Premises for five (5) days after notice and demand; or (f) upon the actual or threatened waste, removal or demolition of, or material alteration to or enlargement of, any part of the Premises, buildings, improvements or Equipment thereon, or construction of any new buildings or improvements thereon, except as permitted by Article 3; or (g) upon default in keeping in force the insurance required herein; or (h) upon assignment by the Mortgagor of the whole or any part of the rents, income or profits arising from the Premises without the written consent of the Mortgagee; or (i) failure to remove any Federal or state tax lien on the Premises within thirty (30) days after notice and demand; or (j) after default in the observance or performance of any other covenants or agreements of the Mortgagor hereunder not providing for immediate acceleration, for thirty (30) days after notice and demand from Mortgagee; or (k) upon the election by the Mortgagee to accelerate the maturity of said principal sum pursuant to the provisions of the Note or of any other instrument which may be held by the Mortgagee as additional security for the Note; or (l) if Mortgagor is not paying its debts as such debts become due, becomes insolvent, files or has filed against it a petition under any chapter of the U.S. Bankruptcy Code, 11 U.S.C. Section 101 et seq. or any similar petition under any insolvency law of any jurisdiction ( and in the case of a petition filed against it, such petition is not dismissed within 30 days), promises any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, makes an assignment or trust mortgage for the benefit of creditors or if a receiver, trustee, custodian or similar agent is appointed or takes possession with respect to the Premises; or (m) if any default shall occur under any other mortgage encumbering the Premises or if any foreclosure of any mortgage or any lien of any kind on the Premises or any part thereof should be commenced; or (n) any levy or sale upon execution or other proceedings of any nature shall occur whereby the Mortgagor shall be deprived of its title or right of possession to the Premises or the Equipment or any part thereof.
5.
Mortgagee's Right to Cure Mortgagor's Defaults
. Mortgagor covenants and agrees that Mortgagee shall have the right, but not the obligation, at any time, and from time to time, to cure any then existing default by the Mortgagor of any of Mortgagor's covenants, agreements and provisions herein to be performed and observed. In the event of any default in the performance of any of the Mortgagor's covenants, agreements or provisions herein, the Mortgagee may, at the option of the Mortgagee, perform the same, and all cost thereof, with interest at the Default Rate defined in the Note (" Default Rate "), shall be so much additional
7
indebtedness secured hereby and shall become immediately due and payable from the Mortgagor to the Mortgagee without notice and shall be paid to Mortgagee on demand.
6.
Payment of Impositions
. That Mortgagor will pay all taxes, assessments, water rates, sewer rents, gas, electric and all other charges ordinary and extraordinary of every kind and nature whatsoever and any prior liens now or hereafter assessed or liens on or levied against the Premises or Equipment or any part of either thereof, when the same are due and payable; that in the event of Mortgagor's default in the payment thereof when the same shall be due and payable, it shall be lawful for the Mortgagee, without notice or demand to the Mortgagor, to pay the same or any of them but Mortgagee shall have no obligation to pay such amounts; and the moneys paid by the Mortgagee in discharge of taxes, assessments, water rates, sewer rents, gas, electric and other charges and prior liens shall be a lien on the Premises added to the amount of said Note and secured by this Mortgage, payable on demand, with interest at the Default Rate; and that upon request of the Mortgagee, the Mortgagor will exhibit to the Mortgagee receipts for the payment of all items specified in this Article prior to the date when the same shall become delinquent.
7.
Appointment of Mortgagee in Possession or Receiver
. That upon or at any time after the filing of a complaint to foreclose this Mortgage, Mortgagee shall have the right to be appointed by the court as mortgagee in possession, or to have a receiver appointed, to take possession of the Premises; that either such appointment may be made either before or after sale, without notice and without regard to the solvency or insolvency of the Mortgagor at the time of application for mortgagee in possession or receiver and without regard to the then value of the Premises, even if the apparent value of the Premises exceeds the indebtedness secured hereby by a substantial amount, or whether the Premises shall be then occupied as a homestead or not; that Mortgagee as mortgagee in possession, or the receiver, shall have power to collect the rents, revenues, income, receipts, issues and profits of the Premises during the pendency of such foreclosure suit through the date of a confirmed sale of the Premises, and shall have all other powers which are granted by law or which may be necessary or are usual in such cases for the protection, possession, control, management and operation of the Premises; and that Mortgagee as mortgagee in possession, or the receiver, out of such rents, revenues, income, receipts, issues and profits, may pay, in any such order as determined by Mortgagee or such receiver, costs incurred in the management and operation of the Premises, prior and subordinate liens, if any, taxes, assessments, and insurance, and may pay all or any part of the indebtedness secured hereby or by any deficiency decree. The Mortgagee, as mortgagee in possession, or the receiver, may serve in such capacities without bond if permitted by law and by Mortgagee.
8.
Certification of Mortgage Balance
. That the Mortgagor, within five (5) days after the request of Mortgagee, shall furnish to the Mortgagee or to any proposed assignee of this Mortgage, a written and duly acknowledged estoppel certificate in form and substance satisfactory to Mortgagee, including without limitation a statement and acknowledgment of the amount due and owing under the Note and under this Mortgage, whether any event has occurred which, with the passage of time or the giving of notice, or both, would constitute an event of default hereunder or under any other loan documents, and whether any alleged offsets or defenses exist against the indebtedness secured hereby or against this Mortgage.
8
9.
Mortgagor's Representation of Title
. That the Mortgagor represents and warrants to Mortgagee and any purchaser at any foreclosure sale that the Mortgagor has good title to the Premises, and buildings and improvements thereon, and good title to the Equipment and has the right to mortgage the same and that the Mortgagor shall and will make, execute, acknowledge and deliver in due form of law, all such further or other deeds or assurances as may at any time hereafter be reasonably desired or required for more fully and effectually conveying the Premises, buildings and improvements thereon, and the Equipment by this Mortgage described, and hereby granted or intended so to be, unto the Mortgagee, for the purpose aforesaid, and will warrant and defend the said granted Premises, buildings and improvements thereon, and Equipment unto all and every person or persons, corporation or corporations, deriving any estate, right, title or interest therein, under this Mortgage.
10.
Filing Fees
. That Mortgagor will pay all filing, registration, recording and search and information fees, and all expenses incident to the execution and acknowledgment of this Mortgage and all other documents securing the indebtedness secured hereby and all federal, state, county and municipal taxes, other taxes, duties, imposts, assessments and charges arising out of or in connection with the execution, delivery, filing, recording or registration of the indebtedness secured hereby, this Mortgage and all other documents securing the indebtedness secured hereby and all assignments thereof. Mortgagor shall pay all Florida documentary stamp tax and intangible tax now or hereafter applicable to this Mortgage and the Note.
11.
Imposition of Mortgage Taxes
. That in the event of the passage after the date of this Mortgage of any law of any legislative authority having jurisdiction over the Premises, deducting from the value of real property for the purposes of taxation any lien thereon or changing in any way the laws for the taxation of mortgages or debts secured by mortgages for state or local purposes or the manner of the collection of any such taxes, and imposing a tax, either directly or indirectly, on this Mortgage or the Note, the holder of this Mortgage and of the debt which it secures shall have the right to declare the principal sum and the interest due on a date to be specified by not less than thirty (30) days' written notice to be given to the Mortgagor by the Mortgagee, provided, however, that such election shall be ineffective if the Mortgagor is permitted by law to pay the whole of such tax in addition to all other payments required hereunder and if, prior to such specified date, does pay such tax and agrees to pay any such tax when thereafter levied or assessed, and such agreement shall constitute a modification of this Mortgage. If, by the laws of the United States of America, or of any state having jurisdiction over the Mortgagor, any tax is due or becomes due in respect of the issuance of the Note or this Mortgage or any related agreements or documents, the Mortgagor shall pay such tax in the manner required by such law.
12.
Mortgagee's Right to Recover Expenses
. That if the Mortgagee shall incur or expend any sums, including attorney's fees and disbursements, whether in connection with any action or proceeding or not, to sustain the lien of this Mortgage or its priority, or to protect or enforce any of its rights hereunder, or to recover any indebtedness hereby secured, or for any title examination or title insurance policy relating to the title to the Premises, all such sums shall on notice and demand be paid by the Mortgagor, together with the interest thereon at the Default Rate and shall be a lien on the Premises, prior to any right or title to, interest in, or claim upon, the Premises subordinate to the lien of this Mortgage, and shall be deemed to be secured by this Mortgage and evidenced by the Note; and that in any action or proceeding to foreclose this
9
Mortgage, or to recover or collect the debt secured thereby, the provisions of law respecting the recovery of costs, disbursement and allowances shall prevail unaffected by this covenant. The Mortgagee, in making any payment (a) relating to taxes and assessments, may do so according to any bill, statement or estimate, without inquiry into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof; (b) for the purchase, discharge, compromise or settlement of any other prior lien, may do so without inquiry as to the validity or amount of any claim for lien which may be asserted; or (c) in connection with the completion of construction, furnishing or equipping of the buildings, improvements on the Premises or the rental, operation or management of the Premises or the buildings and improvements thereon or the payment of operating costs and expenses thereof, Mortgagee may do so in such amounts and to such persons as Mortgagee may deem appropriate and may enter into such contracts therefor as Mortgagee may deem appropriate or may perform the same itself.
13.
Mortgagor to Maintain Premises
. That the Mortgagor will maintain the Premises and the buildings and other improvements thereon and the Equipment in good condition and repair, will not commit nor suffer any waste on or to the Premises, will comply with, or cause to be complied with, all statutes, ordinances and requirements of any governmental authority relating to the Premises; that Mortgagor shall observe and comply with all conditions and requirements necessary to maintain in force the insurance required herein and to preserve and extend any and all rights, licenses, permits (including, but not limited to, zoning variances, special exceptions, and non-conforming uses) privileges, franchises, and concessions which are applicable to the Premises or which have been granted to or contracted for by Mortgagor in connection with any existing or presently contemplated use of the Premises and that in the event that any building or other improvement on the Premises must be altered or removed to enable Mortgagor to comply with the foregoing provisions of this Article, Mortgagor shall not commence any such material alterations or removals without Mortgagee's prior approval of the need therefor and the plans and specifications pertaining thereto and after such approval, Mortgagor at its sole cost and expense, shall effect the alterations or removal so required and approved by Mortgagee; that Mortgagor shall not, by act or omission, permit any building or other improvement on land not subject to the lien of this Mortgage to rely on the Premises or any part thereof or any interest therein to fulfill any governmental or municipal requirement, and Mortgagor hereby assigns to Mortgagee any and all rights to give consent for all or any portion of the Premises or any interest therein to be so used and similarly, no building or other improvement on the Premises shall rely on any land not subject to the lien of this Mortgage or any interest therein to fulfill any governmental or municipal requirement; nor shall Mortgagor, by act or omission, impair the integrity of the Premises as zoning lots separate and apart from all other land and any such act or omission by Mortgagor shall be void; that Mortgagor will promptly repair, restore, replace, or rebuild as nearly as possible to the value, condition and character immediately prior to such damage or destruction any material part of the Premises, the buildings and improvements thereon and the Equipment now or hereafter subject to the lien of this Mortgage which may be damaged or destroyed by any casualty whatsoever or which may be affected by any proceeding of the character referred to in Article 14 and which have any material value; that the Mortgagor will complete and pay for, within a reasonable time, any structure at any time in the process of construction on the Premises; and that the Mortgagor will not initiate, join in, or consent to any change in any private restrictive covenant, zoning ordinance, or other public or private restrictions, limiting or affecting the uses which may be made of the Premises or any part thereof or the buildings or improvements thereon; that the Mortgagor will maintain,
10
clean, repair, police and adequately light parking areas within the Premises, together with any sidewalks, aisles, streets, driveways and sidewalk cuts and paved areas for ingress, egress and right-of-way to and from the adjacent public thoroughfares necessary or desirable for the use thereof; and Mortgagor will reserve and use all such parking areas solely and exclusively for the purpose of providing ingress, egress and parking facilities for automobiles and other passenger vehicles of Mortgagor or tenants or invitees of tenants of the Premises; and Mortgagor will not reduce, build upon, obstruct, redesignate or relocate any such parking areas, sidewalks, aisles, streets, driveways, sidewalk cuts or paved areas or right-of-way or lease or grant any rights to use the same to any other person except tenants and invitees of tenants of the Premises without the prior written consent of Mortgagee.
14.
Condemnation
. That notwithstanding any taking by condemnation or eminent domain, alteration of the grade of any street or other injury to or decrease in value of the Premises including any easement therein, or appurtenance thereto or severance of any part thereof, or any buildings or other improvements thereon by any public or quasi-public authority or corporation, the interest required by the Note shall be calculated on the entire principal sum secured until any such award or payment shall have been actually received by the Mortgagee and any reduction in the principal sum resulting from the application by the Mortgagee of such award or payment as hereinafter set forth shall be deemed to take effect only on the date of such receipt; that such award or payment may, at the option of the Mortgagee, be retained and applied by the Mortgagee toward payment of the monies secured by this Mortgage then most remotely to be paid, or be paid over wholly or in part to the Mortgagor or an escrowee of Mortgagee's choice for the purpose of altering, restoring or rebuilding any part of the Premises which may have been altered, damaged or destroyed as a result of any such taking, alteration of grade, or other injury to the Premises, or for any other purpose or object satisfactory to the Mortgagee, but the Mortgagee shall not be obligated to see to the application of any amount paid over to the Mortgagor; and that if prior to the receipt by the Mortgagee of such award or payment the Premises or any part thereof shall have been sold on foreclosure of this Mortgage, the Mortgagee shall have the right to receive said award or payment to the extent of any deficiency found to be due upon such sale, with legal interest thereon, whether or not a deficiency judgment on this Mortgage shall have been sought or recovered or denied, and of the reasonable counsel fees, costs and disbursements incurred by the Mortgagee in connection with the collection of such award or payment. Any and all awards or payment heretofore or hereafter made or to be made to Mortgagor and all subsequent owners of the Premises in connection with the foregoing are hereby assigned to Mortgagee by Mortgagor and Mortgagor hereby irrevocably constitutes and appoints Mortgagee as the true and lawful attorney in fact of Mortgagor with full power of substitution for Mortgagor and in its name, place and stead to collect and receive the proceeds of any such award granted by virtue of any such taking and to give proper receipts and acquittances therefor. Mortgagee shall have the right to intervene and participate in any proceeding for and in connection with any taking referred to in this Article; provided, however, that if such intervention shall not be permissible or permitted by the court, Mortgagor, at its expense, shall consult with Mortgagee, its attorney and experts and shall make all reasonable efforts to cooperate with them in any defense of such proceedings. Mortgagor shall not enter into any agreement for the taking of the Premises, or any part thereof, or for alteration of the grade of any street or other injury to or decrease in value of the Premises with any person or persons authorized to acquire the same by condemnation or eminent domain, unless Mortgagee shall have first consented thereto in writing.
11
15.
Copies of Leases and Facilities for Mortgagee's Inspection
. That on demand the Mortgagor will furnish to the Mortgagee executed counterparts of any and all leases of the Premises or any part thereof and the buildings and improvements thereon and provide Mortgagee with convenient facilities for the audit and verification of any statements required to be furnished by Mortgagor hereunder.
16.
Mortgagee's Right to Inspect
. That the Mortgagee and any persons authorized by the Mortgagee shall have the right to enter and inspect the Premises at all reasonable times; and that if, at any time after default by the Mortgagor in the performance of any of the terms, covenants or provisions of this Mortgage, the Note or the Other Loan Documents, the management or maintenance of the Premises shall be determined by the Mortgagee to be unsatisfactory, the Mortgagor shall employ, for the duration of such default, as managing agent of the Premises, any person or entity from time to time designated by the Mortgagee. Mortgagee reserves the right to charge Mortgagor a fee of $200.00, plus expenses, for each inspection by Mortgagee or its agent to confirm correction by Mortgagor of unsatisfactory conditions pertaining to Premises maintenance, management, state of repair and governmental compliance.
17.
Lease Approval Rights
. Mortgagor shall have the right during the term of the Loan to enter into leases and other rental arrangements with respect to the Premises in the ordinary course of its business, provided that Mortgage shall provide notice to Mortgagee promptly after entering into any such agreement.
18.
Mortgagee's Right to Enforce Remedies and Take Possession
. That the Mortgagee shall have the right from time to time to enforce any legal or equitable remedy against the Mortgagor and to sue for any sums whether interest, damages for failure to pay principal or any installment thereof, taxes, installments of principal, or any other sums required to be paid under the terms of this Mortgage, the Note, or any other instruments securing the Note, as the same become due, without regard to whether or not the principal sum secured or any other sums secured by the Note and Mortgage and other instruments shall be due and without prejudice to the right of the Mortgagee thereafter to enforce any remedy against the Mortgagor including an action of foreclosure, or any other action, for a default or defaults by the Mortgagor existing at the time such earlier action was commenced. Mortgagee shall be entitled to recover judgment against Mortgagor, any guarantor, surety or other person or entity liable for all or any portion of the indebtedness hereby secured either before or after or during the pendency of any proceedings for the enforcement of the terms, covenants and provisions of this Mortgage; and the right of Mortgagee to recover such judgment shall not be affected by any entry or sale hereunder or the exercise of any other right, power or remedy for the enforcement of the provisions of this Mortgage or the foreclosure of the lien hereof; and in the event of a sale of the Premises or any portion thereof and of the application of the proceeds of sale to the payment of the indebtedness hereby secured, Mortgagee shall be entitled to enforce payment of, and to receive all amounts then remaining due and unpaid upon, the Note, and to enforce payment of all other charges, payments and costs due under this Mortgage. In the event of proceedings against Mortgagor in insolvency or bankruptcy or any proceedings for Mortgagor's arrangement or reorganization or involving the liquidation of its assets, Mortgagee shall be entitled to prove the whole amount of principal and interest due upon the Note to the full amount thereof, and all other payments, charges and costs due under this Mortgage without deducting therefrom any proceeds obtained from the sale of the whole or any part of the Premises; provided, however, that in no case shall
12
Mortgagee receive a greater amount then such principal and interest and such other payments, charges and costs from the aggregate amount of the proceeds of the sale of the Premises and the distribution from the estate of Mortgagor. In any case in which under the provisions of this Mortgage, Mortgagee has a right to institute foreclosure proceedings, whether before or after the whole principal sum secured hereby is declared to be immediately due as aforesaid, or whether before or after the institution of legal proceedings to foreclose the lien hereof or before or after sale thereunder, forthwith, upon demand of Mortgagee, Mortgagor shall surrender to Mortgagee and Mortgagee shall be entitled to take actual possession of the Premises or any part thereof personally, or by its agents or attorneys and Mortgagee in its discretion may, with or without force and with or without process of law, enter upon and take and maintain possession of all or any part of the Premises, together with all documents, books, records, papers and accounts of Mortgagor, or then owner of the Premises including, without limitation, accounts holding tenant security deposits, relating thereto, and may exclude Mortgagor, its agents or servants, wholly therefrom and may as attorney in fact (and Mortgagor hereby so appoints Mortgagee with full power of substitution for Mortgagor and in its name, place and stead) or agent of Mortgagor, or in its own name as Mortgagee and under the powers herein granted, hold, operate, manage and control the Premises and conduct the business, if any, thereof, either personally or by its agents, contractors or nominees and with full power to use such measures, legal or equitable, as in its discretion or in the discretion of its successors or assigns may be deemed proper or necessary to enforce the payment or security of the avails, rents, issues and profits of the Premises, including actions for the recovery of rent, actions in forcible detainer and actions in distress for rent, with full power and authority to exercise each and every of the rights, privileges and powers herein granted at any and all times hereafter, without notice to Mortgagor, and with full power: (i) to cancel or terminate any lease or sublease for any cause or on any ground which would entitle Mortgagor to cancel the same; (ii) to elect to disaffirm (except Mortgagee may not disaffirm any lease it specifically approved) any lease or sublease made subsequent to this Mortgage or subordinated to the lien hereof; (iii) to make all necessary or proper repairs, decorating, renewals, replacements, alterations, additions, betterments and improvements to the Premises, including completion of construction in progress, as to it may deem judicious; (iv) to insure and reinsure the same and all risks incidental to Mortgagee's possession, operation and management thereof; (v) to employ watchmen to protect the Premises; (vi) to continue any and all outstanding contracts for the erection and completion of improvements to the Premises; (vii) to make and enter into any contracts and obligations wherever necessary in its own name, and to pay and discharge all debts, obligations and liabilities incurred thereby, all at the expense of Mortgagor; (viii) to receive all avails, rents, issues, profits and proceeds therefrom and to perform such other acts in connection with the management and operation of the Premises as Mortgagee, in its discretion, may deem proper; (ix) intentionally deleted; and (x) to extend or modify any then existing leases and make new leases, which extensions, modifications and new leases may provide for terms to expire, or for options to lessees to extend or renew terms to expire, beyond the maturity date of the indebtedness hereunder and beyond the date of the issuance of a deed or deeds to a purchaser or purchasers at a foreclosure sale, it being understood and agreed that any such leases, and the options or other such provisions to be contained therein, shall be binding upon Mortgagor and all persons whose interests in the Premises are subject to the lien hereof and upon the purchaser or purchasers at any foreclosure sale, notwithstanding any redemption from sale, discharge of the Mortgage indebtedness, satisfaction of any foreclosure decree or issuance of any certificate of sale or deed to any purchaser. Mortgagee shall not be obligated to perform
13
or discharge, nor does it hereby undertake to perform or discharge, any obligation, duty or liability under any leases, and Mortgagor shall and does hereby agree to defend, indemnify and hold Mortgagee harmless of and from any and all liability, loss or damage which it may or might incur under said leases or under or by reason of the assignment thereof and of and from any and all claims and demands whatsoever which may be asserted against it by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants or agreements contained in said leases. Should Mortgagee incur any such liability, loss or damage, under said leases or under or by reason of the assignment thereof, or in the defense of any claims or demands, the amount thereof, including costs, expenses and attorneys' fees, shall be secured hereby, and Mortgagor shall reimburse Mortgagee therefor immediately upon written demand. Mortgagee, in the exercise of the rights and powers herein conferred upon it, shall have full power to use and apply the avails, rents, issues and profits of the Premises to the payment of or on account of the following, in such order as Mortgagee may determine: (a) to the payment of the operating expenses of the Premises including cost of management and leasing thereof (which shall include reasonable compensation to Mortgagee and its agent or agents, if management be delegated to an agent or agents, and shall also include lease commissions and other compensation and expenses of seeking and procuring tenants and entering into leases), established claims for damages, if any, and premiums on insurance hereinabove authorized; (b) to the payment of taxes and special assessments now due or which may hereafter become due on the Premises; (c) to the payment of all repairs, decorating, renewals, replacements, alterations, additions, betterments, and improvements of the Premises, and of placing said property in such condition as will, in the judgment of Mortgagee, make it readily rentable; and (d) to the payment of any indebtedness secured hereby or any deficiency which may result from any foreclosure sale.
19.
Recognition of Payments and Tender of Payment After Acceleration
. That any payment made in accordance with the terms of this Mortgage by any person at any time liable for the payment of the whole or any part of the sums now or hereafter secured by this Mortgage, or by any subsequent owner of the Premises, or by any other person whose interest in the Premises might be prejudiced in the event of a failure to make such payment, or by any stockholder, officer or director of a corporation, or by any partner of a partnership, or by any member of a limited liability company which at any time may be liable for such payment or may own or have such an interest in the Premises, shall be deemed, as between the Mortgagee and all persons who at any time may be liable as aforesaid or may own the Premises, to have been made on behalf of all such persons. Upon default by Mortgagor and following the acceleration of maturity as aforesaid, a tender of payment of the amount necessary to satisfy the entire indebtedness secured hereby made at any time prior to foreclosure sale by Mortgagor, its successors or assigns shall constitute an evasion of any prohibition against prepayment, the absence of the right of prepayment, or the premium required in connection therewith, whichever the case may be at the time, and any tender of payment in full following default shall be deemed to be a voluntary prepayment hereunder and such voluntary prepayment to the extent permitted by law, will therefore include any prepayment premium set forth in the Note and will, to the extent permitted by law, include a premium of five percent (5%) of the principal sum, if tender is made during the period, including the entire term of the Note if prepayment in full is prohibited during the entire term of the Note, in which prepayment in full is prohibited. In case, after legal proceedings are instituted to foreclose the lien of this Mortgage, tender is made of the entire indebtedness due hereunder, Mortgagee shall be entitled to reimbursement for expenses incurred in connection
14
with such legal proceedings, including such expenditures as are enumerated in this Mortgage, or as otherwise permitted to be added to the indebtedness secured hereby under applicable law, and such expenses shall be so much additional indebtedness secured by this Mortgage, and no such suit or proceedings shall be dismissed or otherwise disposed of until such fees, expenses and charges shall have been paid in full.
20.
No Waiver of Strict Performance
. That any failure by the Mortgagee to insist upon the strict performance by the Mortgagor of any of the terms, covenants and provisions hereof shall not be deemed to be a waiver of any of the terms, covenants and provisions hereof, and the Mortgagee, notwithstanding any such failure, shall have the right thereafter to insist upon the strict performance by the Mortgagor of any and all of the terms, covenants and provisions of this Mortgage to be performed by the Mortgagor; that neither the Mortgagor nor any other person now or hereafter obligated for the payment of the whole or any part of the sums now or hereafter secured by this Mortgage shall be relieved of such obligation by reason of the failure of the Mortgagee to comply with any request of the Mortgagor or of any other person so obligated to take action to foreclose this Mortgage or otherwise enforce any of the terms, covenants and provisions of this Mortgage or of any obligations secured by this Mortgage, or by reason of the release, regardless of consideration, of the whole or any part of the security held for the indebtedness secured by this Mortgage, or by reason of any agreement or stipulation between any subsequent owner or owners of the Premises and the Mortgagee extending the time of payment or modifying the terms of the Note or Mortgage without first having obtained the consent of the Mortgagor or such other person, and in the latter event, the Mortgagor and all such other persons shall continue to be liable for and shall continue to make such payments according to the terms of any such agreement of extension or modification unless expressly released and discharged in writing by the Mortgagee; that regardless of consideration, and without the necessity for any notice to or consent by the holder of any subordinate lien on the Premises, the Mortgagee may release the obligation of anyone at any time liable for any of the indebtedness secured by this Mortgage or any part of the security held for the indebtedness and may extend the time of payment or otherwise modify the terms of the Note, this Mortgage, or any other instrument securing the Note, without, as to the security or the remainder thereof, in anyway impairing or affecting the lien of this Mortgage or the priority of such lien, as security for the payment of the indebtedness hereby secured as it may be so extended or modified, over any subordinate lien, including without limitation, the right of Mortgagee to amend, modify and supplement the terms of the Note, this Mortgage, or any other instrument securing the Note, and to vary the rate of interest and the method of computing the same, and to impose additional fees and other charges, and to extend the maturity of the indebtedness hereby secured, in each and every case without obtaining the consent of the holder of any subordinate lien and without the lien of this Mortgage losing its priority over the rights of any subordinate lien; that the holder of any subordinate lien shall have no right to terminate any lease affecting the Premises whether or not such lease be subordinate to this Mortgage; that the Mortgagee may resort for the payment of the indebtedness secured hereby to any other security therefor held by the Mortgagee in such order and manner as the Mortgagee may elect; that acceptance by Mortgagee of any payment which is less than payment in full of all amounts due and payable at the time of such payment shall not constitute a waiver of Mortgagee's right to exercise its option to declare the whole of the principal sum then remaining unpaid, together with all accrued and unpaid interest thereon, and all other sums due hereunder, immediately due and payable without notice, or the waiver of any other rights of the Mortgagee at that time or any subsequent time, nor nullify any prior
15
exercise of such option or such rights of Mortgagee without its written consent except and to the extent otherwise provided by law. Nothing in this Article contained shall be construed as waiving any provision of this Mortgage which provides, among other things, that it shall be an event of default if the Premises, buildings or improvements thereon, or any part thereof or interest therein, is conveyed, sold, transferred, leased, or encumbered except as may be expressly permitted hereunder; nor shall Mortgagee's receipt of any awards, proceeds or damages under the terms of this Mortgage operate to cure or waive default in the payment of sums secured by this Mortgage.
21.
Rescission of Election
. That acceleration of maturity, once made by Mortgagee, may, at the option of Mortgagee, be rescinded, and any proceedings brought to enforce any rights or remedies hereunder may, at Mortgagee's option, be discontinued or dismissed, whereupon, in either of such events, Mortgagor and Mortgagee shall be restored to their former positions, and the rights, remedies and power of Mortgagee shall continue as if such acceleration had not been made or such proceedings had not been commenced, as the case may be.
22.
Mortgagee's Right to Foreclose
. That when the indebtedness secured hereby shall become due whether by acceleration or otherwise, the Mortgagee shall have the right to foreclose the lien hereof; that in any suit to foreclose the lien hereof, there shall be allowed and included as additional indebtedness in the decree for sale all expenditures and expenses which may be paid or incurred by or on behalf of the Mortgagee for attorneys' fees and disbursements, appraisers' fees, outlays for documentary and expert evidence, stenographers' charges, publication costs and costs (which may be estimated as to items to be expended after entry of the decree) of procuring all such abstracts of title, title searches and examinations, guarantee policies, and similar data and assurances with respect to title as Mortgagee may deem to be necessary either to prosecute such suit or to evidence to bidders at any sale which may be had pursuant to such decree the true condition of the title to or the value of the Premises; that all such expenditures and expenses shall become so much additional indebtedness secured hereby and immediately due and payable, with interest thereon at the Default Rate when paid or incurred by the Mortgagee; and that the proceeds of any such foreclosure sale shall be applied (after paying all costs and expenses incident to the foreclosure proceedings) first on account of all unpaid items which under the terms hereof constitute secured indebtedness additional to that evidenced by the Note, with interest thereon as herein provided; second, to the payment of all interest remaining unpaid on the Note; third, to the payment of all principal remaining unpaid under the Note; fourth, to the extent permitted by law, the amount of any prepayment premium (if any) that would otherwise be due and owing if this Mortgage and the Note were paid at that time; and lastly any surplus, if any, shall be paid to the Mortgagor or to any other person entitled thereto. In the event of an insured loss after foreclosure proceedings have been instituted, the proceeds of any insurance policy or policies shall be used to pay the amount due in accordance with any decree of foreclosure that may be entered in any such proceedings, and the balance, if any, shall be paid as the court may direct. In the case of foreclosure of this Mortgage, the court, in its decree, may provide that the mortgagee's clause attached to each of the casualty insurance policies may be canceled and that the decree creditor may cause a new loss clause to be attached to each of said casualty insurance policies making the loss thereunder payable to said decree creditors. In the event of foreclosure sale, the Mortgagee is hereby authorized, without consent of the Mortgagor, to assign any and all insurance policies to the purchaser at the sale, or to take such other steps as the Mortgagee may deem advisable to cause the interest of such purchaser to be protected by any
16
of the insurance policies. Any sale or sales made under or by virtue of full or partial foreclosure of the lien of this Mortgage whether by virtue of judicial proceedings, judgment or decree of foreclosure and sale or otherwise, shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of Mortgagor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against Mortgagor and against any and all persons claiming or who may claim the same, or any part thereof from, through or under Mortgagor. Upon any sale made by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, any person, including Mortgagor and Mortgagee, may bid for and acquire the Premises or any part thereof or the Equipment or other personalty thereon or any part thereof; and in lieu of paying cash therefor, Mortgagee may make settlement for the purchase price by crediting upon the indebtedness hereby secured the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which the Mortgagee is authorized to deduct under this Mortgage; provided, however, that any such credit bid shall not affect the continuing liability of Mortgagor or any guarantor of the Note, this Mortgage or the Other Loan Documents for any deficiency remaining after application of such sale proceeds to the indebtedness secured hereby.
23.
Waiver of Redemption
. The Mortgagor hereby waives any and all rights of redemption from foreclosure, judgment of foreclosure and sale under any statute or under any order, judgment or decree of foreclosure of this Mortgage, on behalf of the Mortgagor and on behalf of each and every person acquiring any interest in or title to the Premises subsequent to the date of this Mortgage, it being the intent hereof that any and all rights of redemption of Mortgagor and all other persons, are and shall be deemed to be waived to the fullest extent permitted by applicable law.
24.
Waiver of Defense and Statutory Rights
. No action for the enforcement of the lien and security interests created by this Mortgage or of any provision hereof shall be subject to any defense which would not be good and available to the party interposing same in an action at law upon the Note. Mortgagor shall not and will not apply for or avail itself of any appraisement, valuation, stay, extension or exemption laws or any so-called "moratorium laws", now existing or hereafter enacted, in order to prevent or hinder the enforcement or foreclosure of the lien and security interests of this Mortgage, but hereby waives the benefit of such laws. Mortgagor, for itself and all who may claim by, through or under Mortgagor, waives any and all right to have the property and estates comprising the Premises or the Equipment marshaled upon any foreclosure of the lien and security interests hereof and agrees that any court having jurisdiction to foreclose such lien and security interests may order the Premises and Equipment sold in its entirety. Mortgagee shall have the right and option in any suit to foreclose the lien of this Mortgage to obtain an order of judgment of foreclosure and sale subject to the rights of any tenant or tenants of the Premises. The failure to join any tenant or tenants of the Premises as party defendants in any such suit or the failure of any such order or judgment to foreclose their rights shall not be asserted by Mortgagor as a defense in any suit instituted to collect the indebtedness secured hereby, or any part thereof or any deficiency remaining unpaid after foreclosure and sale of the Premises, any statute or rule of law at any time existing to the contrary notwithstanding.
17
25.
Joint and Several Liability
. That if the Mortgagor consists of more than one person, such Mortgagors shall be jointly and severally liable under any and all obligations, covenants and agreements of the Mortgagor contained herein.
26.
Mortgagee's Remedies Cumulative
. That the rights of the Mortgagee arising under the clauses and covenants contained in this Mortgage shall be separate, distinct and cumulative and none of them shall be in exclusion of the others; that no act of the Mortgagee shall be construed as an election to proceed under any one provision herein to the exclusion of any other provision, anything herein or otherwise to the contrary notwithstanding.
27.
Definitions
. That wherever used in this Mortgage unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, the word "Mortgagor" shall mean "Mortgagor or any subsequent owner or owners of the Premises", the word " Mortgagee " shall mean "Mortgagee or any subsequent holder or holders of this Mortgage", the word "Note" shall mean any and all "note or notes, or bond or bonds secured by this Mortgage", the word " person " shall mean "an individual, corporation, partnership or unincorporated association", and the word " Premises " shall include the real estate hereinbefore described, together with all buildings, improvements, Equipment, condemnation awards, insurance proceeds, and any other rights or property interests at any time made subject to the lien of this Mortgage by the terms hereof, and the expression herein of any one or more such terms individually or together with other such terms shall not be deemed an exclusion of any of the other such terms not then expressed; and pronouns of any gender shall include the other genders, and either the singular or plural shall include the other; and the words "terms", "provisions", "obligations", "conditions", "covenants", "clauses" and "agreements" are deemed to be used interchangeably herein and that the use herein of any one or more of them shall not be deemed an exclusion of the others not then expressed.
28.
Amendments
. This Mortgage, the Note and the other instruments securing the Note, cannot be changed except by an agreement in writing signed by Mortgagee and Mortgagor. Any person, firm or corporation taking a junior mortgage, or other lien upon the Premises or any interest therein, shall take such lien subject to the rights of the Mortgagee herein to amend, modify and supplement this Mortgage, the Note and the other instruments securing the Note, and to extend the maturity of the indebtedness hereby secured, in each and every case without obtaining the consent of the holder of such junior lien and without the lien of this Mortgage losing its priority over the rights of any such junior lien.
29.
Mortgagor Power and Authority
. Mortgagor (a) is a limited liability company, duly formed, validly existing and in good standing under the laws of the State of Georgia and has complied with all conditions prerequisite to its doing business in the State of Florida; (b) has the power and authority to own the Premises and to carry on its business as now being conducted; (c) is qualified to do business in the State of Florida; and (d) is in compliance with all laws, regulations, ordinances and orders of public authorities applicable to it.
30.
Business Loan/Non Usurious
. Mortgagor represents and warrants that the proceeds of the Note secured by this Mortgage will constitute a business loan. All agreements in this Mortgage, the Note and any Other Loan Document are expressly limited so that in no contingency or event whatsoever, whether by reason of advancement or acceleration of maturity
18
of the indebtedness secured hereby, or otherwise, shall the amount paid or agreed to be paid hereunder for the use, forbearance or detention of money exceed the highest lawful rate permitted under applicable usury law. If, from any circumstances whatsoever, fulfillment of any provision hereof, of the Note or of any Other Loan Document, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by law, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity and if, from any circumstance whatsoever, Mortgagee shall ever receive as interest an amount which would exceed the highest lawful rate, the receipt of such excess shall be deemed a mistake and shall be canceled automatically or, if theretofore paid, such excess shall be credited against the principal amount of the indebtedness secured hereby to which the same may lawfully be credited, and any portion of such excess not capable of being so credited shall be rebated to Mortgagor.
31.
Tax and Insurance Premium Escrows
. After the occurrence of an Event of Default under this Mortgage or the Other Loan Documents, Mortgagor will deposit with Mortgagee an amount equal to the accrued general tax liability of the Premises, based on the most recently ascertainable taxes, through the Maturity Date, or such lesser amount as Mortgagee may require, and an amount equal to the insurance premium for the insurance coverage required to be maintained hereunder, or such lesser amount as Mortgagee may require. Mortgagee shall not be obligated to pay interest on any such sums so held on account of taxes or insurance premiums and all such sums may be commingled with Mortgagee's other funds. All amounts paid pursuant to the provisions of this Article are hereby pledged as additional security for the indebtedness secured hereby. In the event of a default hereunder or under the Note or the Other Loan Documents, the Mortgagee may, at its option and without being required so to do, apply any such funds to the Mortgagor's obligations hereunder or under the Note or the Other Loan Documents in such order and manner as the Mortgagee may elect. When the indebtedness secured hereby has been fully paid and all obligations of the Mortgagor to the Mortgagee have been fully performed, all funds deposited pursuant to this Article which have not been previously expended for the purposes herein allowed shall be returned to the Mortgagor or the then owner of the Premises, without interest.
32.
Subrogation
. Notwithstanding the release of record of Senior Liens (as hereinafter defined) Mortgagee shall be subrogated to the rights and liens of all superior titles, vendors' liens, mechanics' liens, or liens, charges, encumbrances, rights and equities on the Premises having priority to the lien of this Mortgage (" Senior Liens "), to the extent that any obligation secured thereby is directly or indirectly paid or discharged with proceeds or disbursements or advances of the indebtedness hereby secured, whether made pursuant to the provisions hereof or of the Note or any document or instrument executed in connection with the indebtedness hereby secured.
33.
Financial Statements
. Upon written request, Mortgagor shall furnish Mortgagee as soon as practicable after the end of each month, and in any event within fifteen (15) days thereafter, duplicate copies of monthly statements of income and expense and a periodic balance sheet of Mortgagor as of the end of each month or period, as the case may be and to the extent typically prepared by Mortgagor, prepared in accordance with generally accepted accounting principles consistently applied and certified to by the managing general partner, or a financial officer of the beneficiary of Mortgagor. If Mortgagor shall fail to prepare and deliver any statements, reports or other items to be submitted hereunder, within the time provided, then
19
Mortgagee may have a certified public accountant, selected by Mortgagee, audit Mortgagor's records and prepare such statements which shall be conclusive on Mortgagor and Mortgagor shall pay the expenses of such an audit and preparation of such statements on demand, together with the interest at the Default Rate from the date of demand.
34.
Mortgagee's Right to Comply with Prior Liens
. In the event of default hereunder by Mortgagor, and in addition to any other rights and remedies available to Mortgagee, Mortgagee may, but need not, make any payment or perform any act herein required of Mortgagor in any form and manner deemed expedient, and may, but need not, make full or partial payments of principal or interest on other prior encumbrances, if any, and purchase, discharge, compromise or settle any tax lien or other prior lien or title or claim thereof, or redeem from any tax sale or forfeiture affecting the Premises or contest any tax or assessment. All moneys paid for any of the purposes herein authorized and all expenses paid or incurred in connection therewith, including attorneys' fees, and any other money advanced by Mortgagee to protect the Premises and the lien hereof, shall be so much additional indebtedness secured hereby, and shall become immediately due and payable without notice and with interest thereon at the Default Rate until paid. Inaction of Mortgagee shall never be considered as a waiver of any right accruing to it on account of any default on the part of Mortgagor.
35.
Mortgagor's Additional Duties to Maintain the Premises
. Mortgagor covenants and agrees to keep the buildings, improvements and Equipment on the Premises with any material value in good repair, pay all operating costs thereof and shall neither suffer nor commit any waste on or to the Premises, and if Mortgagor fails to make any such repairs or suffers or commits waste, Mortgagee may elect to make such repairs or eliminate such waste, and the cost thereof shall be so much additional indebtedness secured hereby, and shall become immediately due and payable without notice and with interest thereon at the Default Rate until paid. In addition, Mortgagor shall not suffer nor permit any mechanic's lien or other liens to attach to or be filed or recorded against the Premises, the same being deemed a default hereunder, unless Mortgagor shall in good faith and with due diligence, contest the same or the validity thereof by appropriate legal proceedings which shall have the effect of preventing the collection of such lien or liens so contested; provided that, pending any such legal proceedings Mortgagor shall give Mortgagee such security as may be deemed satisfactory to Mortgagee to insure payment of the amount of such lien or liens and all interest and penalties thereon. If, at any time during the continuance of such contest, the Premises or any part thereof is, in the judgment of Mortgagee, in danger of being forfeited or lost, Mortgagee may use such security for the payment of such lien or liens.
36.
Duty to Replace Fixtures and Equipment
. Mortgagor shall replace all broken glass with glass of the same size and quality as that broken, and will replace all damaged heating, plumbing, electrical and air-conditioning fixtures and other Equipment with other of equal quality and will keep the Premises, buildings and improvements thereon in clean and healthful condition according to all applicable governmental regulations and ordinances and the direction of the proper public officers pending final payment to Mortgagee. Mortgagor further agrees to promptly replace with items of equal quality, any and all items of personal property that wear out during the course of the term of this Mortgage. Mortgagor shall keep the Premises, buildings and improvements thereon free from any and all code violations and shall promptly correct or commence to correct with due diligence the same within thirty (30) days after notice of any such
20
violations. Mortgagor further agrees that any items used by Mortgagor in replacement of any of the foregoing items of personal property, fixtures or Equipment shall be new and shall be fully paid upon installation and shall not be purchased or leased under any title retention contract or agreement whatsoever. All such replacement items shall be subject to the lien of this Mortgage and Mortgagee shall have a security interest in all such replacement items.
37.
Hold Harmless
. Mortgagor covenants and agrees that it will defend, save and keep Mortgagee forever harmless and indemnified against and from any and all penalties, damages, liabilities, defenses, judgments, expenses and charges imposed for any violation of any laws or ordinances, whether occasioned by the neglect of Mortgagor or those holding under Mortgagor, and that Mortgagor will at all times defend, save and keep Mortgagee forever harmless and indemnified against and from any and all loss, cost, damage, liability, judgment and expense arising out of or from any accident or other occurrence on or about the Premises, causing injury to any person or property whomsoever or whatsoever, and will defend, save and keep Mortgagee forever harmless and indemnified against and from any and all claims and against and from any and all loss, cost, damage, liability, judgment and expense arising out of the failure of Mortgagor in any respect to comply with and perform any of the requirements and provisions of this Mortgage. In the event the Mortgagee suffers any loss, cost, damage, liability, judgment or expense as a result of the exercise by it of any of the rights and privileges accruing to it hereunder because of the Mortgagor's default hereunder or under the Note secured hereby or under the Other Loan Documents, then and in that event, Mortgagor shall be fully responsible for same and the same shall be immediately paid to the Mortgagee upon demand together with interest thereon at the Default Rate from the date on which same was incurred, and all such amounts shall be secured by the lien hereof.
38.
Tenant Security Deposits
. Mortgagor covenants and agrees to make prompt payment of any amount of security deposit, as the tenants of the Premises become entitled thereto, and hereby agrees to save and keep Mortgagee forever harmless and indemnified against any claim, judgment, liability or expense, including attorneys' fees, therefor made by any such tenants.
39.
Performance of Lessor's Duties and Compliance With Documents of Record
. Mortgagor covenants and agrees that it will faithfully observe and perform all obligations to be observed and performed by the lessor under all present leases and any future leases affecting the Premises, such present and future leases to include all residential and commercial leases and all laundry room and equipment leases, if any, and all service contracts and concession agreements. Mortgagor further covenants and agrees that Mortgagor will observe and perform all obligations to be observed and performed by the owner of the Premises under any document or instrument which may be from time to time of record and which may affect title to the Premises. In the event the Mortgagor for any reason fails to observe and perform any of such obligations, the Mortgagee may, but need not, perform same and the cost incurred by the Mortgagee in so doing shall constitute so much additional indebtedness secured hereby and shall become immediately due and payable without notice and with interest thereon at the Default Rate until paid.
40.
Assignment of Leases and Rents and Sales Contracts
. Mortgagor shall have the right to enter into leases and other agreements with regard to the development of the Premises without the prior consent of Mortgage, provided that Mortgagor shall promptly notify Mortgagee
21
after entering into any such agreement. T o further secure the indebtedness hereby secured, Mortgagor hereby sells, assigns and transfers unto Mortgagee all of the rents, leases, issues and profits now due and which may hereafter become due under or by virtue of any leases which may have been heretofore or may be hereafter made or agreed to by Mortgagor or the beneficiary or beneficiaries of Mortgagor or the agents of any of them or which may be made or agreed to by Mortgagee under the powers herein granted, it being the intention hereby to establish an absolute transfer and assignment of all such rents, leases, issues and profits thereunder, to Mortgagee. Mortgagor hereby irrevocably appoints Mortgagee its agent in its name, place and stead (with or without taking possession of the Premises as provided in this Mortgage) to rent, lease or let all or any portion of the Premises to any party or parties at such rental and upon such terms as said Mortgagee shall, in its discretion, determine, and to collect all of the rents, issues and profits arising from or accruing at any time hereafter, and all now due or that may hereafter become due under each and every of the leases, written or oral, or other tenancy existing, or which may hereafter exist on the Premises, with the same rights and powers and subject to the same immunities, exoneration of liability and rights of recourse and indemnity as Mortgagee would have upon taking possession pursuant to the provisions of this Mortgage. Mortgagor represents and agrees that no rent has been or will be paid by any person in possession of any portion of the Premises for more than one installment in advance and that the payment of none of the rents to accrue for any portion of said Premises has been or will be waived, released, reduced, discounted or otherwise discharged or compromised by Mortgagor. Mortgagor waives any rights of set off against any person in possession of any portion of the Premises. Mortgagor agrees that it will not assign any of the rents or profits of the Premises, except to Mortgagee or a purchaser or grantee of the Premises if so permitted by Mortgagee. Nothing herein contained shall be construed as constituting Mortgagee a mortgagee in possession in the absence of the taking of actual possession of the Premises by Mortgagee pursuant to the provisions of this Mortgage. In the exercise of the powers herein granted Mortgagee, no liability shall be asserted or enforced against Mortgagee, all such liability being expressly waived and released by Mortgagor. Mortgagor further agrees to assign and transfer to Mortgagee all future leases upon all or any part of the Premises and to execute and deliver, at the request of Mortgagee, all such further assurances and assignments in the Premises as Mortgagee shall from time to time require. Although it is the intention of the parties that the assignment contained in this Article shall be a present assignment, it is expressly understood and agreed, anything herein contained to the contrary notwithstanding, that Mortgagee shall not exercise any of the rights or powers conferred upon it by this Article until a default shall exist under this Mortgage and notice (if required) and the applicable grace periods (if any) shall have expired. From time to time, upon request Mortgagor will furnish Mortgagee with executed copies of each of the Leases. In the event Mortgagee requires that Mortgagor execute and record a separate collateral assignment of rents or separate assignments of any of the leases to Mortgagee, the terms and provisions of those assignments shall control in the event of a conflict between the terms of this Mortgage and the terms thereof.
41.
Security Agreement, UCC Financing Statements and Other Instruments
. This Mortgage, to the extent that it conveys or otherwise deals with personal property (tangible and intangible) or with items of personal property which are or may become fixtures, shall also be construed as a security agreement under the Uniform Commercial Code as in effect in the state in which the Premises are located, and this Mortgage constitutes a financing statement filed as a fixture filing in the Official Records of the County Recorder of the County in which the Premises
22
are located with respect to any and all fixtures included within the term "Equipment" as used herein and with respect to any other personal property that may now be or hereafter become such fixtures. At the request of Mortgagee, Mortgagor shall execute and deliver, in form and substance satisfactory to Mortgagee, a Security Agreement and Uniform Commercial Code Financing Statements, in multiple counterparts, covering the fixtures, chattels, and articles of personal property subject to the lien of this Mortgage. In the event Mortgagee requires that Mortgagor execute and record a separate Security Agreement and Uniform Commercial Code Financing Statements, the terms and provisions of those instruments shall control in the event of a conflict between the terms of this Mortgage and the terms thereof. Mortgagor shall do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered all such further acts, conveyances, notes, mortgages, security agreements, financing statements and assurances as Mortgagee shall require for accomplishing the purpose of this Mortgage. Without limitation of the foregoing, Mortgagor shall assign to Mortgagee, upon request, as further security for the indebtedness secured hereby, Mortgagor's interests in all agreements, contracts, licenses and permits affecting the Premises, such assignments to be made by instruments satisfactory to Mortgagee, but no such assignment shall be construed as a consent by the Mortgagee to any agreement, contract, license or permit or to impose upon Mortgagee any obligations with respect thereto.
42.
Litigation Expenses
. Mortgagor shall pay to Mortgagee all costs and expenses, including reasonable attorney's fees, incurred by Mortgagee in any action or proceeding to which Mortgagee may be made a party by reason of being a party to this Mortgage, and Mortgagor will pay to Mortgagee all costs and expenses, including reasonable attorney's fees, incurred by Mortgagee in enforcing any of the terms, covenants and provisions of this Mortgage or the Note or the Other Loan Documents and incurred in any action brought by Mortgagee against Mortgagor on account of the terms, covenants or provisions hereof or of the Note or the Other Loan Documents, and all such costs, expenses and reasonable attorney's fees may be included in and form a part of any judgment entered in any proceeding brought by Mortgagee against Mortgagor on or under this Mortgage.
43.
Late Payments-Mortgagee's Rights
. If Mortgagor is late in the making of any payment due under the Note secured hereby, Mortgagee shall have the right to increase the interest rate under the Note to the Default Rate until the default in payment is cured, charge a late payment fee equal to five percent (5%) of the delinquent payment and accelerate the principal balance and all accrued and unpaid interest due under the Note, all as provided in the Note.
44.
Continuation of Mortgagor's Obligations
. The obligations of Mortgagor under this Mortgage, and the Note it secures shall continue until the entire debt evidenced hereby and all other amounts that may become due hereunder, are paid, notwithstanding any action or actions of partial foreclosure which may be brought to recover any amount or amounts for installments of principal, interest, taxes, assessments, water rates, insurance premiums or other payments due and payable under the terms, covenants and provisions of this Mortgage.
2)
Due on Sale and Due on Further Encumbrance Provisions, Additional Causes for Acceleration . The entire principal sum together with accrued and unpaid interest thereon and any additional sums which this Mortgage secures, shall also become immediately due and payable, at the option of the Mortgagee (a) If the Premises, buildings and improvements thereon,
23
or any part thereof or any interest therein is conveyed, sold (including a sale on an installment basis or pursuant to so-called "articles of agreement"), transferred, leased (other than as permitted in the Construction Loan Agreement), encumbered or assigned in any manner whether voluntarily or involuntarily without the prior written consent of the Mortgagee; or (b) intentionally deleted; (c) With respect to Mortgagor in the event that any interest in Mortgagor is conveyed, sold, transferred, leased, encumbered, pledged as collateral or assigned, in any manner whether voluntarily or involuntarily without the prior written consent of the Mortgagee; or (d) If within ninety (90) days of the death, incompetency, or discharge of any party personally liable for payment of the Note secured hereby, whether as a maker or guarantor, there is not delivered to the Mortgagee an unconditional guaranty of the Note and this Mortgage prepared on a form approved by the Mortgagee, of a person whose financial reliability has been demonstrated to and approved by the Mortgagee; or (e) Mortgagor, or any member of Mortgagor, or any person, firm, partnership, venture (and in the case of a partnership or venture, a general partner or a venturer thereof), trust, limited liability company or corporation at any time guarantying all or any part of the indebtedness hereby secured (a " Guarantor ") becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature or makes an assignment for the benefit of creditors or applies for or consents to the appointment of a trustee, custodian or receiver for the major part of its property or such a trustee, custodian or receiver is appointed for Mortgagor, any member of Mortgagor, or any Guarantor or for the major part of the properties of any of them and is not discharged within forty-five (45) days after such appointment, or if bankruptcy, reorganization, arrangement, insolvency, readjustment, liquidation, dissolution or other proceedings for relief under any present or future bankruptcy law or laws or other statute, law or regulation for the relief of debtors are instituted by or against Mortgagor, any member of Mortgagor, or any Guarantor and if instituted against any such party are consented to or acquiesced in or are not dismissed within forty-five (45) days after such institution, or if Mortgagor, any member of Mortgagor, or any Guarantor takes any action to initiate or further any of the foregoing; or (f) Any event occurs or condition exists which is specified as an event of default in any separate assignment of leases and/or rents securing the Note or of any other instrument or document securing the Note or relating thereto; or (g) Any financial or other information submitted to Mortgagee by any Guarantor or submitted by Mortgagor, or any officers or members of Mortgagor, proves untrue in any material respect; or (h) The Premises are abandoned; or (i) Mortgagor or any officers or members of Mortgagor are dissolved; or any of the individual or individuals, entity or entities as of the date hereof comprising the managing member(s), controlling shareholder(s) or controlling member(s) of Mortgagor, cease to be managing member(s), controlling shareholder(s) or controlling member(s) other than by death or adjudicated incompetence; or (j) There shall be any change of the management agent or manager, or termination of the management contract for the Premises without Mortgagee's prior written consent; or (k) Mortgagor shall fail to maintain its existence or shall merge into or consolidate with any other corporation, firm, partnership, joint venture or limited liability company; convey, transfer, lease or otherwise dispose of all or substantially all of its property, assets or business; assume, guarantee or become primarily or contingently liable on any indebtedness or obligation of any other person, corporation, firm, partnership, joint venture or limited liability company, without prior written consent from Mortgagee.
46.
Future Advances
. This Mortgage is given to secure payment of the Note, whether the entire amount thereof shall have been advanced to the Mortgagor at the date hereof, or at a later date, or not at all, and to secure the payment and performance of all other liabilities and
24
obligations of Mortgagor under the Note or under any other loan documents made in connection with the Note or this Mortgage and any other amount of amounts that may be added to the indebtedness secured hereby under the terms of this Mortgage, all of which indebtedness being equally secured with and having the same priority as any amounts advanced at the date hereof. Pursuant to Section 697.04, Florida Statutes, it is agreed that any future advances made by Mortgagee to or for the benefit of Mortgagor from time to time under this Mortgage or other aforesaid loan documents within and whether or not such advances are obligatory or are made at the option of Mortgagee, or otherwise, made at any time from the date of this Mortgage, and all interest accruing thereon, shall be equally secured by this Mortgage and have the same priority as all amounts, if any, advanced as of the date hereof and be subject to all of the terms and provisions of this Mortgage with the proviso that (i) the aggregate amount of the indebtedness secured hereby together with all such additional sums advanced shall not exceed FORTY FOUR MILLION DOLLARS ($44,000,000.00), and (ii) such advances are made within twenty (20) years after the date of this Mortgage.
47.
Notices
. Any notice request or demand to be given hereunder shall be in writing, and shall be deemed to have been given when personally delivered, deposited for delivery with an overnight courier service such as Federal Express, or placed in the United States mail with proper registered or certified postage prepaid, return receipt requested, and in all cases addressed to the party concerned at the address shown below:
To Mortgagee: |
|
To Mortgagor: |
IA Orlando Sand, L.L.C. c/o Inland American Real Estate Trust, Inc. 2901 Butterfield Road Oak Brook, Illinois 60523 Attn: Roberta Matlin |
|
Fourth Quarter Properties 124, LLC 45 Ansley Drive Newnan, Georgia 30263 Attn: Stanley E. Thomas |
With a copy to: |
|
With a copy to: |
The Inland Real Estate Group, Inc. 2901 Butterfield Road Oak Brook, Illinois 60523 Attn: Robert Baum, Esq., General Counsel |
|
Jeffrey F. Montgomery
|
provided, however, that each of the foregoing addresses for notice may be changed from time to time by notice given to the other party, in the manner herein provided for.
48.
Successors and Assigns
. Whenever any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party and subsequent owners of the Premises; and all the terms, covenants and provisions in this Mortgage contained by or on behalf of Mortgagor, or by or on behalf of Mortgagee, shall bind and inure to the benefit of the respective successors and assigns of such parties, whether so expressed or not.
25
49.
Headings
. The headings in this instrument are for convenience of reference only and shall not limit or otherwise affect the meaning of any provision hereof.
50.
Assignment by Mortgagee
. This Mortgage may be assigned by the Mortgagee at any time and without notice to or prior approval of Mortgagor, its successors or assigns or grantees. The word "Mortgagee," when used herein, shall include the successors and assigns of the original Mortgagee named on the first page hereof, and the holder or holders, from time to time, of the Note. However, whenever the Note is sold and the purchaser assumes the obligations of the Mortgagee hereunder, each prior holder shall be automatically freed and relieved, on and after the date of such sale, of all liability with respect to the performance of each covenant and obligation of the Mortgagee hereunder thereafter to be performed, provided that any monies which are then held by the seller of the Note and in which the Mortgagor has an interest are paid or credited to the purchaser of the Note.
51.
Intentionally Omitted
.
52.
No Merger
. This Mortgage and the lien hereof shall not merge in fee simple title to the Premises, unless a contrary intent is ever manifested by Mortgagee as evidenced by an express statement to that effect in an appropriate document duly recorded. Therefore, it is hereby understood and agreed that should Mortgagee acquire any additional or other interests in or to the Premises or the ownership thereof, then this Mortgage and the lien hereof shall not merge in the fee simple title, toward the end that this Mortgage may be foreclosed as if owned by a stranger to the fee simple title.
53.
Jurisdiction
. This Mortgage and the Other Loan Documents shall be construed for all purposes and enforced in accordance with the laws of the State of Florida. If any term, covenant or provision of this Mortgage shall be held to be invalid, illegal, or unenforceable in any respect, this Mortgage shall be construed without such terms, conditions or provisions and remain in full force and effect. Without limiting the right of the Mortgagee hereof to bring any action or proceeding against the undersigned or against property of the undersigned arising out of or relating to this Mortgage (an " Action ") in the courts of other jurisdictions, the undersigned hereby irrevocably submits to the jurisdiction of any Florida state court sitting in Orange County, Florida, or federal court sitting in the Middle District of Florida; and the undersigned hereby irrevocably agrees that any Action may be heard and determined in any such state court or in either such Federal court. The undersigned hereby irrevocably waives, to the fullest extent possible, the defense of an inconvenient forum to the maintenance of any Action in any jurisdiction. The undersigned hereby irrevocably agrees that the summons and complaint or any process in any Action in any jurisdiction may be served on the undersigned by mailing to the address of the undersigned set forth herein or by hand delivery to a person of suitable age and discretion at the undersigned's address set forth herein. Such service will be complete on the date such process is so mailed or delivered, and the undersigned will have thirty days from such completion of service in which to respond in the manner provided by law. The undersigned may also be served in any other manner permitted by law, in which event the undersigned's time to respond shall be the time provided by law. Both the undersigned and the holder hereof hereby irrevocably waive all rights to trial by jury in any Action proceeding or counterclaim arising out or relating to this Mortgage, the Note and/or any other document executed in connection herewith or therewith.
26
54.
Hazardous Substances, Products and Wastes
. Subject to those matters disclosed in the environmental reports provided to Mortgagee by Mortgagor, Mortgagor shall cause the Premises to be at all times kept free of any and all substances, products, wastes and/or contaminants which may not lawfully be maintained on or in the Premises pursuant to any law, statute, ordinance, rule or regulation of any state, federal or other authority, whether presently existing or hereafter enacted or adopted, or the presence of which, in the reasonable estimation of the Mortgagee, is harmful or injurious to occupants and tenants of the Premises or others (such substances, products, wastes and/or contaminants being hereinafter called " Hazardous Substances "). In the event the Mortgagor fails at all times to keep the Premises free of any and all such Hazardous Substances, the Mortgagee may, but shall not be obligated to, enter upon the Premises and remove therefrom any and all Hazardous Substances, and the costs incurred by the Mortgagee in so doing shall be paid by the Mortgagor to the Mortgagee upon demand together with interest thereon at the Default Rate, and all such amounts, together with such interest, shall be secured by the lien hereof. The Mortgagor hereby grants to the Mortgagee, its agents, employees and independent contractors, and to its successors and assigns, an irrevocable easement and right of access over and upon the Premises to remove any Hazardous Substances therefrom and agrees to forever defend, indemnify, save and hold the Mortgagee, its agents, employees and independent contractors harmless from any and all claims, damages, liabilities, judgments, loss, costs and expenses, including attorney's fees, arising in connection therewith and, in addition, the Mortgagor agrees to forever defend, save, indemnify and hold the Mortgagee, its agents, employees and independent contractors harmless from any claims, damages, liabilities, judgments, costs and expenses, including attorney's fees, arising in any way in connection with or as a result of the existence at or in the Premises of any Hazardous Substances. If Mortgagee shall have a reasonable basis to believe that the provisions of this paragraph are being violated, then upon the Mortgagee's request, at any time and from time to time while this Mortgage is in effect, the Mortgagor agrees that it will provide, at the Mortgagor's sole cost and expense, an inspection or audit of the Premises prepared by an engineering or consulting firm approved by the Mortgagee indicating the presence or absence of Hazardous Substances on or in the Premises. If the Mortgagor fails to provide such inspection or audit within thirty (30) days of such request, the Mortgagee may obtain same and hereby grants to the Mortgagee and its employees, independent contractors and agents an easement over and right of access to the Premises for the purpose of conducting such inspection or audit and the cost thereof shall immediately upon demand be paid by the Mortgagor to the Mortgagee together with interest thereon at the Default Rate, and the same shall be deemed secured by the lien hereof. Mortgagor hereby covenants and agrees to defend, indemnify and save harmless Mortgagee, its officers, directors, employees, agents, attorneys, successors and assigns against and from any and all damages, losses, liabilities, obligations, claims, litigation, demands, defenses, judgments, suits, proceedings, fines, penalties, costs, disbursements and expenses (including without limitation attorneys' and experts' fees and expenses, clean-up costs, waste disposal costs and those costs, expenses, penalties and fines within the meaning of The Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.), of any kind or nature whatsoever which may at any time be imposed upon, incurred by or asserted or awarded against Mortgagee and arising from any violation or alleged violation of environmental laws, or environmental problems or other environmental matters, including without limitation matters arising out of any breach of Mortgagor's foregoing representations and warranties, whether any such matters arise before or
27
after delivery of this Mortgage, Mortgagee's taking possession of or operating any of the Premises or Equipment or foreclosure of this Mortgage (or delivery of a deed in lieu thereof or similar actions to the same effect).
55.
Mortgagee's Lien for Service Charge and Expenses
. At all times, regardless of whether any loan proceeds have been disbursed, this Mortgage secures (in addition to any loan proceeds disbursed from time to time) the payment of any and all loan commissions, service charges, liquidated damages, and all advances due to or incurred by Mortgagee, pursuant to the Note and the Other Loan Documents.
56.
Permitted Contests
. Mortgagor shall have the right to contest in good faith and with reasonable diligence the validity of any impositions, tax assessments, or mechanics' liens or claims upon furnishing (a) to the title insurance company approved by Mortgagee such security or indemnity as it may require to induce the title insurance company to issue its title insurance commitment or its mortgage title insurance policy insuring against all such claims or liens, in form satisfactory to Mortgagee and (b) to Mortgagee such other security with respect to such lien or claim as may be acceptable to Mortgagee.
57.
Intentionally Deleted
58.
Legal Construction .
i.
Mortgagor and Mortgage agree that, except as otherwise set forth below, the laws of the State of Florida shall govern the rights and duties of the parties hereto and the validity, construction, enforcement and interpretation of this Mortgage.
The parties agree that Mortgagee may enforce its rights under the Loan Documents, including, but not limited to, its rights to sue the undersigned or to collect any outstanding indebtedness, in accordance with applicable law.
B.
Nothing in this Mortgage, the Note or in any other agreement between the Mortgagor and the Mortgagee shall require the Mortgagor to pay, individually or together, or the Mortgagee to accept, interest in an amount which would subject the Mortgagee to any penalty under applicable law. In the event that the payment of any interest due hereunder or under the Note or any such other agreement would subject the Mortgagee to any penalty under applicable law, then ipso facto the obligations of the Mortgagor to make such payment shall be reduced to the highest rate authorized under applicable law.
59.
OFAC
. Mortgagor represents and covenants that it is not and will not become a person (individually, a Prohibited Person and collectively Prohibited Persons ) listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, U.S. Department of the Treasury (the OFAC List ) or otherwise subject to any other prohibitions or restrictions imposed by laws, regulations or executive orders, including Executive Order No. 13224, administered by OFAC (as may be amended from time to time, collectively the OFAC Rules ). Mortgagor represents and covenants that it also (i) is not and will not become owned or controlled by a Prohibited Person, (ii) is not acting and will not act for or on behalf of a Prohibited Person, (iii) is not otherwise associated with and will not become associated with a Prohibited Person, (iv) is not providing and will not provide any
28
material, financial or technological support for or financial or other service to or in support of acts of terrorism or a Prohibited Person. Mortgagor will not transfer any interest in Mortgagor to or enter into a Lease with any Prohibited Person. Mortgagor shall immediately notify Mortgagee if Mortgagor has actual knowledge (after commercially reasonable due diligence and inquiry) that any Guarantor or any member or beneficial owner of Mortgagor or Guarantor is or becomes a Prohibited Person or (A) is indicted on or (B) arraigned and held over on charges involving money laundering or predicate crimes to money laundering. Mortgagor will not enter into any lease or undertake any activities related to this Agreement in violation of the federal Bank Secrecy Act (as amended from time to time, the BSA ), 31 U.S.C. §5311, et seq. or any federal or state laws, including but not limited to 18 U.S.C. §§ 1956, 1957 and 1960, prohibiting money laundering and terrorist financing (as amended from time to time, collectively the Anti-Money Laundering Laws ). Mortgagor shall provide information as Mortgagee may require from time to time to permit Mortgagee to satisfy its obligations under the OFAC Rules and/or the Anti Money Laundering Laws. Mortgagor shall immediately notify Mortgagee if to Mortgagors actual knowledge (after commercially reasonable due diligence and inquiry) any Tenant becomes a Prohibited Person or (A) is convicted of, (B) pleads nolo contendere to, (C) is indicted on, or (D) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering. In addition to the foregoing, Mortgagor agrees to indemnify, defend and hold harmless Mortgagee for any actual Losses suffered or incurred (as applicable) by Mortgagee if Mortgagor does not company with this Section 4.1.36 or any of the provisions and requirements of the OFAC Rules, BSA and/or Anti Money Laundering Laws.
60.
Waiver of Jury Trial
A.
. MORTGAGOR AND MORTGAGEE HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE, THE NOTE OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY OR ANY EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER THIS MORTGAGE, THE NOTE OR THE LOAN DOCUMENTS OR IN ANY WAY RELATING TO THE LOAN OR THE PREMISES (INCLUDING, WITHOUT LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS MORTGAGE, THE NOTE OR ANY OF THE OTHER LOAN DOCUMENTS AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS MORTGAGE, THE NOTE OR ANY OF THE OTHER LOAN DOCUMENTS FRAUDULENTLY INDUCED OR ARE OTHERWISE VOID OR VOIDABLE); THIS WAIVER BEING A MATERIAL INDUCEMENT FOR MORTGAGEE TO ACCEPT THIS MORTGAGE.
29
IN WITNESS WHEREOF, Mortgagee caused this Mortgage to be executed and delivered as of the day and year first above written.
WITNESSES:
/s/ G. Lama Maddox Print Name: G. Lama Maddox /s/ Deborah Mathis Print Name: Deborah Mathis |
Fourth Quarter Properties 124, LLC, a Georgia limited liability company
By: /s/ Stanley E. Thomas Name: Stanley E. Thomas Title: Manager |
|
|
STATE OF GA |
) |
|
): SS |
COUNTY OF Coweta |
) |
The foregoing instrument was acknowledged before me on this 28 day of September, 2006, by Stanley Thomas, as Manager of __________, the managing member of Fourth Quarter Properties 124, LLC, a Georgia limited liability company, on behalf of said entities. He personally appeared before me, and is personally known to me or produced a current _________________________ as identification.
|
|
|
Notary: /s/ Crystal Clark |
[NOTARIAL SEAL] |
Print Name: Crystal Clark |
|
Notary Public: State of Georgia |
|
My Commission expires: 3/22/2010 |
30
EXHIBIT "A"
From a 4x4 concrete monument with a 2 inch brass disc stamped RLS 1585 RLS 1819 at the Northwest corner of the Northwest 1/4 of Section 31, Township 23 South, Range 29 East, Orange County, Florida, run South 00 degrees 50 minutes 25 seconds East 160.01 feet along the West boundary of said Northwest 1/4 to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186 on the South right-of-way line of Sand Lake Road (State Road 482) as described and recorded in Official Records Book 235, Page 620, Public Records Of Orange County, Florida; thence run North 89 degrees 49 minutes 21 seconds East 1040.57 feet along said South right-of-way line to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP for the POINT OF BEGINNING; thence continue North 89 degrees 49 minutes 21 seconds East 1049.97 feet along said South right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 00 degrees 50 minutes 25 seconds West 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 49 minutes 21 seconds East 563.13 feet along the South right-of-way line of Sand Lake Road (State Road 482) as described and recorded in Official Records Book 223, Page 321, Public Records Of Orange County, Florida to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 00 degrees 11 minutes 03 seconds West 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 32 minutes 07 seconds East 400.01 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run South 00 degrees 11 minutes 03 seconds East 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 32 minutes 07 seconds East 2066.31 feet along said right-of-way line to a point on a line parallel with and 200.00 feet West of, when measured at right angles to, the East boundary of the Northeast 1/4 of the aforesaid Section 31, said point being a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run South 00 degrees 14 minutes 20 seconds East 987.07 feet along said parallel line to a 4x4 concrete monument with disc stamped JWG LB 1 at the Northeast corner of that certain parcel of land described and recorded in Official Records Book 6983, Pages 2167 through 2172 of the Public Records of Orange County, Florida; thence along the Northerly boundary of said parcel of land with the following courses and distances, run North 89 degrees 54 minutes 59 minutes West 1144.66 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the beginning of a non-tangent curve, concave Northwesterly and having a radius of 1196.00 feet; thence from a tangent bearing of South 15 degrees 58 minutes 41 seconds West run Southwesterly 887.53 feet along the arc of said curve through a central angle of 42 degrees 31 minutes 05 seconds to a 4x4 concrete monument with disc stamped JWG LB 1 at the end of said curve; thence run South 58 degrees 29 minutes 46 seconds West 136.16 feet along a line 50.00 feet Southeast of and parallel with, when measured at right angles to the Southeasterly boundary of that certain Orange County Sewer Line Easement described and recorded in Official Records Book 3400, Page 1743 and Official Records Book 3406, Page 1334 and Official Records Book 3403, Page 495, Public Records of Orange County, Florida to a 4x4 concrete monument with disc stamped JWG LB 1; thence run North 89 degrees 54 minutes 59 seconds West 660.26 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP; thence leaving the aforesaid Northerly boundary, run North 00 degrees 11 minutes 03 seconds West 852.08 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the beginning of a non-tangent curve concave Southerly and having a radius of 700.00 feet; thence from a tangent bearing of North 66 degrees 28 minutes 35 seconds West run Westerly 347.68 feet along the arc of said curve through a central angle of 28 degrees 27 minutes 28 seconds to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the end of said curve; thence run North 86 degrees 47 minutes 22 seconds West 220.59 feet; thence run South 82 degrees 51 minutes 29 seconds West 811.25 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the beginning of a non-tangent curve, concave Southwesterly and having a radius of 2100.00 feet; thence from a tangent bearing of North 04 degrees 01 minutes 10 seconds West run Northwesterly 939.70 feet along the arc of said curve through a central angle of 25 degrees 38 minutes 19 seconds to the Point of Beginning.
A-1
LESS AND EXCEPT:
From the Northeast corner of Section 31, Township 23 South, Range 29 East run South 00 degrees 14 minutes 20 seconds East 150.00 feet along the East boundary of the Northeast 1/4 of said Section 31 to a point on the south right-of-way line of State Road 482 (Sand Lake Road) as described in Official Records Book 223, Page 321 of the Public Records of Orange County, Florida; thence run South 89 degrees 32 minutes o7 seconds West 200.00; thence run South 00 degrees 14 minutes 20 seconds East 987.07 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the Northeast corner of that certain parcel of land described and recorded in Official Records Book 6983, Pages 2167 through 2172 of the Public Records of Orange County, Florida; thence along the Northerly boundary of said parcel of land with the following courses and distances, run North 89 degrees 54 minutes 59 minutes West 1144.66 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the beginning of a non-tangent curve, concave Northwesterly and having a radius of 1196.00 feet; thence from a tangent bearing of South 15 degrees 58 minutes 41 seconds West run Southwesterly 887.53 feet along the arc of said curve through a central angel of 42 degrees 31 minutes 05 seconds to a 4x4 concrete monument with disc stamped JWG LB 1 at the end of said curve; thence run South 58 degrees 29 minutes 46 seconds West 136.16 feet along a line 50.00 feet Southeast of and parallel with, when measured at right angles to the Southeasterly boundary of that certain Orange County Sewer Line Easement described and recorded in Official Records Book 3400, Page 1743 and Official Records Book 3406, Page 1334 and Official Records Book 3403, Page 495, Public Records of Orange County, Florida to a 4x4 concrete monument with disc stamped JWG LB 1; thence run North 89 degrees 54 minutes 59 seconds West 169.47 feet to the POINT OF BEGINNING; thence run North 89 degrees 54 minutes 59 seconds West 490.79 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP; thence leaving the aforesaid Northerly boundary, run North 00 degrees 11 minutes 03 seconds West 722.82 feet; thence run South 72 degrees 24 minutes 46 seconds East 213.71 feet to the beginning of a non-tangent curve concave Southwesterly and having a radius of 679.60 feet; thence from a tangent bearing of South 72 degrees 48 minutes 40 seconds East run Southeasterly 288.19 feet along the arc of said curve through a central angle of 24 degrees 17 minutes 49 seconds to the end of said curve and the beginning of a non-tangent curve concave Southwesterly and having a radius of 508.17 feet; thence from a tangent bearing of South 45 degrees 29 minutes 25 seconds East run Southeasterly 250.01 feet along the arc of said curve through a central angle of 28 degrees 11 minutes 19 seconds to the end of said curve and the beginning of a non-tangent curve concave Northwesterly and having a radius of 285.52 feet; thence from a tangent bearing of South 17 degrees 58 minutes 40 seconds East run Southwesterly 339.86 feet along the arc of said curve through a central angle of 68 degrees 11 minutes 58 seconds to the end of said curve and the Point of Beginning.
CONTAINING: 7.860 acres, more or less.
A-2
EXHIBIT 10.132
This instrument prepared by
and should be returned to:
Charles J. Benvenuto, P.C.
2901 Butterfield Road
Oak Brook, Illinois 60523
Attn: Eugene J. Filice, Esq.
ABOVE SPACE IS FOR RECORDING PURPOSES ONLY
FIRST MORTGAGE AND SECURITY AGREEMENT (7.86 acre parcel)
THIS MORTGAGE, made as of the 29 th day of September, 2006, between Fourth Quarter Properties 124, LLC, a Georgia limited liability company, having an office at 45 Ansley Drive
Newnan, Georgia 30263 (the " Mortgagor "), and IA Orlando Sand, L.L.C., a Delaware limited liability company (the " Mortgagee "), having its principal offices at 2901 Butterfield Road, Oak Brook, Illinois 60523.
WITNESSETH, that to secure the payment when and as due and payable of an indebtedness in the sum of Forty One Million Four Hundred Seventy Seven Thousand Sixty Two and 84/100 Dollars ($41,477,062.84) in lawful money of the United States to be paid with interest thereon in installments, the last of which is due and payable on December 1, 2006 (subject to Mortgagors option to extend the maturity date for one, three month extension term, in which event the maturity date may be extended until March 30, 2007, subject to the conditions set forth in the Note as hereafter defined), according to a certain note or obligation (collectively the " Note ") bearing even date herewith from Mortgagor to Mortgagee, and any extensions and renewals thereof, in whole or in part, and any and all other sums which may be at any time due or owing or required to be paid as herein or in the Note or in other instruments securing the Note provided, and to secure the performance and observance of all the covenants, provisions and agreements herein and in the Note contained (whether or not the Mortgagor is personally liable for such payment, performance and observance) and in consideration of the premises and Ten Dollars ($10.00) in hand paid by the Mortgagee to the Mortgagor, and for other good and valuable considerations, the receipt and sufficiency of all of which are hereby acknowledged by the Mortgagor, the Mortgagor hereby warrants, grants, sells, conveys, mortgages, pledges and assigns to the Mortgagee and to its successors and assigns:
All that certain lot, piece or parcel of land together with all buildings and improvements of every kind and description, heretofore, or hereafter erected or placed thereon, situate, lying and being in Orange County, State of Florida, as described in Exhibit "A" attached hereto and made a part hereof (the " Premises ").
TOGETHER with all and singular the tenements, hereditaments, privileges, easements, rights of way, strips and gores of land, licenses and appurtenances now or hereafter thereunto belonging or in any way appertaining, and the reversion or reversions, remainder and remainders,
rents, revenues, income, receipts, issues and profits thereof; and also all the estate, right, title, interest, property, claim and demand whatsoever of the Mortgagor, of, in and to the same and of, in and every part and parcel thereof.
TOGETHER with all right, title and interest of the Mortgagor, if any, in and to common areas and access roads on adjacent properties heretofore or hereafter granted to Mortgagor; in and to the land lying in the bed of any street, road, alley or avenue, opened or proposed or hereafter vacated, in front of or adjoining the Premises to the center line thereof or used to provide a means of access to the Premises; in and to adjacent sidewalks, alleys, streets and vaults and all underground and overhead passageways; and any and all rights and interests of every name and nature now or hereafter owned by the Mortgagor forming a part of and/or used in connection with the Premises and/or the operation and convenience of the buildings and improvements located thereon; and in and to the air space and the rights of use thereof above the Premises; and in and to water and mineral rights.
TOGETHER with all machinery, apparatus, equipment, fittings, fixtures, building materials, and articles of personal property of every kind and nature whatsoever, other than consumable goods, now or hereafter located in or upon the Premises or any part thereof and used or usable in connection with any present or future operation of the Premises (hereinafter called " Equipment ") and now owned or hereafter acquired by the Mortgagor, including, but without limiting the generality of the foregoing, all heating, lighting, laundry, incinerating and power equipment, engines, pipes, pumps, tanks, motors, conduits, switchboards, plumbing, lifting, cleaning, fire-prevention, fire-extinguishing, refrigerating, ventilating and communications apparatus and electronic monitoring equipment, air-cooling and air-conditioning apparatus, elevators, escalators, shades, awnings, screens, storm doors and windows, stoves, wall beds, refrigerators, attached cabinets, partitions, ducts and compressors, all window and structural cleaning rigs, and all renewals, replacements or articles in substitution therefor of any of the Equipment and all of the right, title and interest of the Mortgagor in and to any Equipment which may be subject to any title retention or security agreement superior in lien to the lien of this Mortgage. It is understood and agreed that all Equipment is appropriated to the use of the Premises and, whether affixed or annexed or not, for the purpose of this Mortgage shall be deemed conclusively to be conveyed hereby. The Mortgagor agrees to execute and deliver from time to time, such further instruments as may be requested by the Mortgagee to confirm the lien of this Mortgage on any Equipment.
TOGETHER with any and all awards or payments, judgments, settlements and other compensation hereafter made including interest thereon, and the right to receive the same, which may be made with respect to the Premises as a result of (a) the exercise of the right of condemnation or eminent domain, or (b) the alteration of the grade of any street, or (c) any other injury to or decrease in the value of the Premises or to any part thereof or any building or other improvement now or hereafter located thereon or easement or other appurtenance thereto to the extent of all amounts which may be secured by this Mortgage at the date of receipt by the Mortgagee of any such award or payment and of the counsel fees, costs and disbursements incurred by the Mortgagee in connection with the collection of such award or payment. The Mortgagor agrees to execute and deliver, from time to time, such further instruments as may be requested by the Mortgagee to confirm such assignment to the Mortgagee of any such award or payment.
2
TOGETHER with all leasehold estates, right, title and interest of Mortgagor in any and all leases, subleases, management agreements, arrangements, concessions, or agreements, written or oral, relating to the use and occupancy of the Premises and improvements or any portion thereof located thereon, now or hereafter existing or entered into including without limitation all security deposits and all deposits and escrows for real estate taxes.
TOGETHER with all goodwill, trade names, option rights, purchase contracts, books and records and general intangibles relating to the Premises, the improvements thereon or the Equipment and all accounts, contract rights, instruments, chattel paper and other rights of Mortgagor for payment of money, for property sold or lent, for services rendered, for money lent, or for advances or deposits made, and any other intangible property of the Mortgagor related to the Premises or the improvements thereon or the Equipment, and all accounts and monies held in possession of Mortgagee for the benefit of Mortgagor.
TOGETHER with all rents, issues and profits, royalties, avails, income and all other benefits derived or owned by Mortgagor directly or indirectly from the Premises or improvements thereof for so long and during all such times as Mortgagor may be entitled thereto (which are pledged primarily and on a parity with the Premises and not secondarily).
TOGETHER with all the estate, interest, right, title, other claim or demand, including claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Mortgagor now has or may hereinafter acquire in the Premises.
TO HAVE AND TO HOLD the above warranted, granted, sold, conveyed, mortgaged, pledged, assigned and described Premises and all the buildings, improvements, appurtenances, Equipment, intangibles, properties, rights, interests, rents, issues, profits and all other compensation hereinabove described, unto the Mortgagee, its successors and assigns, forever, Mortgagor hereby releasing and waiving all rights under and by virtue of the homestead provisions of the State of Florida and all right to retain possession of the Premises after any default in or breach of the conditions, covenants or provisions herein contained.
PROVIDED ALWAYS, and these presents are upon this express condition, that if the Mortgagor and the heirs, executors, administrators, successors or assigns of the Mortgagor shall well and truly pay unto the Mortgagee, its successors or assigns, the sum of money stated in the Note, the interest thereon, and any and all other sums secured hereby, at the time and in the manner set forth in the Note, and shall well and truly abide by and comply with each and every covenant and condition set forth herein or in the Note, and in any and all other instruments evidencing or securing the Note (collectively referred to herein as the " Other Loan Documents "), then these presents and the estate hereby granted shall cease, determine and be void.
3
AND the Mortgagor covenants with the Mortgagee as follows:
1.
Duty of Payment
. That the Mortgagor will duly and promptly pay each and every installment of the principal of and interest on the Note, and all other sums hereby secured, as the same become due, and will duly perform and observe all of the covenants, agreements and provisions herein or in the Note or in the Other Loan Documents provided on the part of the Mortgagor to be performed and observed.
1)
i)
Insurance and Casualty . That the Mortgagor will keep the buildings and all other improvements on the Premises, and the Equipment, insured for the benefit of the Mortgagee against loss, damage or destruction by fire, flood ( if available and required under the National Flood Act of 1986, as amended), lightning, windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles and smoke as provided by the Standard Fire and Extended Coverage Policy and all other risks of direct physical loss as insured against under Special Extended Coverage Endorsement all in amounts approved from time to time by the Mortgagee but not less than the amount of the Note or 100% of full replacement cost, whichever is greater, together with an agreed amount endorsement with separate values for each building and improvement, and when and to the extent required by the Mortgagee, against any other risk insured against by persons operating like properties in the locality of the Premises; the Policy shall include coverage against acts of terrorism; that prior to completion of construction of the improvements on the Premises, Mortgagor shall provide Builder's Risk Insurance in such amounts and in the form required by Mortgagee; that all insurance herein provided for shall be in form, content, amounts and in companies approved by the Mortgagee with all premiums thereon paid not less than yearly in advance with evidence of payment thereof delivered to Mortgagee on demand; that regardless of the types or amounts of insurance required and approved by the Mortgagee, the Mortgagor will assign and deliver to the Mortgagee all policies of insurance which insure against any loss, damage or destruction to the Premises and the Equipment, as collateral and further security for the payment of the money secured by this Mortgage, with loss payable to the Mortgagee pursuant to the Illinois Standard or other mortgagee clause satisfactory to the Mortgagee without contribution, and notwithstanding any acts or omissions of Mortgagor and with standard waiver of subrogation endorsements; that not less than thirty (30) days prior to the expiration dates of each policy required of the Mortgagor pursuant to this Article, the Mortgagor will deliver to the Mortgagee a renewal policy or policies marked "premium paid" or accompanied by other evidence of payment satisfactory to the Mortgagee; and that the aforesaid insurance shall not be subject to cancellation except after at least thirty (30) days' prior written notice to Mortgagee. The full replacement cost of buildings, improvements and Equipment shall be determined from time to time at Mortgagee's request by an insurance appraiser selected by Mortgagee and paid for by Mortgagor. The insurance appraiser shall submit a written report of his appraisal and if said report shows that the buildings, improvements and Equipment are not insured as herein required, Mortgagor shall promptly obtain such additional insurance as is required. No policy of insurance required hereunder shall contain deductible provisions which have not been approved by Mortgagee. In addition to the insurance coverage hereinabove required, Mortgagor shall maintain loss of rent insurance in an amount equal to not less than 100% of the annual gross rental of the Premises based on 100% occupancy. Mortgagor shall not carry separate insurance concurrent in kind or form and contributing in the event of loss, with any insurance required hereby. Mortgagor shall also obtain and maintain for itself, its beneficiaries and Mortgagee, broad form comprehensive general liability insurance, property
4
damage insurance and workmen's compensation insurance, in each case, in form, and content and amount satisfactory to Mortgagee. Mortgagor shall also obtain and maintain such other insurance with respect to the Premises and the buildings, improvements and Equipment thereon in such amounts and against such insurable hazards as Mortgagee from time to time may require, including, without limitation, builder's risk insurance, sinkhole, boiler and machinery insurance, and insurance against flood risk. Mortgagor shall furnish to Mortgagee, upon request, a certificate signed by an authorized individual containing a detailed list of the insurance policies then outstanding and in force on the Premises. In the event of a foreclosure of this Mortgage the purchaser of the Premises shall succeed to all the rights of the Mortgagor, including any right to unearned premiums, in and to all policies of insurance assigned and delivered to the Mortgagee pursuant to the provisions of this Article and Mortgagor hereby irrevocably constitutes and appoints Mortgagee as the true and lawful attorney-in-fact of Mortgagor with full power of substitution for Mortgagor and in its name, place and stead to so assign each policy and all such rights. If the Mortgagor defaults in so insuring the Premises or in so assigning and delivering the policies, the Mortgagee may, at the option of the Mortgagee, obtain such insurance to protect Mortgagee's interest in the Premises using such carriers and agencies as Mortgagee shall elect from year to year and pay the premiums therefor, and Mortgagor will reimburse the Mortgagee for any premiums so paid, with the interest at the Default Rate stated in Article 5 hereof from the time of payment, within thirty (30) days after the date Mortgagee gives Mortgagor notice of the placement of such insurance, and the same shall be secured by this Mortgage. The insurance purchased by Mortgagee may, but need not, protect Mortgagor's interests. The coverage that Mortgagee purchases may not pay any claim that Mortgagor makes or any claim that is made against Mortgagor in connection with the Premises. Mortgagor may later cancel any insurance purchased by Mortgagee, but only after providing Mortgagee with evidence that Mortgagor has obtained insurance as required by this Mortgage. If Mortgagee purchases insurance for the Premises, Mortgagor will be responsible for the costs of that insurance, including interest at the Default Rate and any other charges Mortgagee may impose in connection with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance. The cost of the insurance shall be additional indebtedness evidenced by the Note and secured by this Mortgage. Mortgagor acknowledges that the cost of the insurance obtained by Mortgagee may be more than the cost of such insurance Mortgagor may be able to obtain on its own.
B.
Repair of Damage . If any building or improvement on the Premises or any of the Equipment shall be destroyed or damaged in whole or in part, by fire or other casualty (including any casualty for which insurance was not obtained or obtainable) of any kind or nature, ordinary or extraordinary, foreseen or unforeseen, Mortgagor shall give to Mortgagee immediate notice thereof. Mortgagor, at its own cost and expense, whether or not such damage or destruction shall have been insured, and whether or not insurance proceeds, if any, shall be sufficient for the purpose, shall promptly repair, alter, restore, replace and rebuild the same, at least to the extent of the value and as nearly as possible to the character of the building or improvement or Equipment existing immediately prior to such occurrence, provided, however, Mortgagor shall not be required to rebuild or repair any damaged portion of the Premises if Mortgagee received the insurance proceeds relating to such damaged portion and did not permit Mortgagor to use such proceeds for rebuilding. Mortgagee shall in no event be called upon to repair, alter, replace, restore or rebuild such Premises or Equipment, or any portion thereof, nor to pay any of the costs or expenses thereof. Mortgagee is authorized to settle and adjust any claim under such insurance policies which insure against such risk; provided, however, so long
5
as Mortgagor is not in default of this Mortgage, Mortgagor may settle and adjust any claim under such policies in an amount equal to or less than $25,000.00, and apply the proceeds thereof to the repair, restoration or rebuilding of the damaged building or improvement or Equipment. In all events, Mortgagee is authorized to collect and receipt for any such insurance monies, and such insurance proceeds, at the option of the Mortgagee, may be: (i) applied in reduction of the indebtedness secured hereby, whether due or not, and in the order determined by Mortgagee; or (ii) held by Mortgagee and applied to pay for the cost of repair, rebuilding or restoration of the buildings and other improvements or Equipment on the Premises. In the event, in Mortgagee's sole and absolute discretion, the proceeds are to be made available to Mortgagor for the cost of repair, Mortgagee shall be entitled to reimburse itself to the extent of the reasonably necessary and proper expenses paid or incurred by Mortgagee in the collection and administration of such monies, including attorney's fees. (Any funds received by Mortgagee from insurance provided by Mortgagor less any funds Mortgagee is entitled to reimburse itself shall be defined herein as " Net Insurance Proceeds "). If, in Mortgagee's sole and absolute discretion, the Net Insurance Proceeds are to be made available to the Mortgagor for the cost of repair, rebuilding, and restoration, any surplus which may remain out of the Net Insurance Proceeds after payment of such cost of repair, rebuilding and restoration and the reasonable charges of the escrowee by disbursing such funds, if applicable, shall, at the option of the Mortgagee, be applied on account of the indebtedness hereby secured, whether due or not, and in the order determined by Mortgagee or paid to any party entitled thereto as the same appear on the records of the Mortgagee. In the event the Net Insurance Proceeds are to be made available to Mortgagor for the cost of repair, such proceeds shall be disbursed to Mortgagor pursuant to such terms and conditions as Mortgagee may in its sole discretion require. In the event Mortgagee elects to apply the Net Insurance Proceeds to the payment of the indebtedness secured by this Mortgage and such Net Insurance Proceeds do not discharge the payment of the indebtedness secured by this Mortgage in full, then at Mortgagee's option the entire amount of the indebtedness secured by this Mortgage shall become immediately due and payable. If while any insurance proceeds or condemnation awards are held by or for Mortgagee to reimburse Mortgagor or any lessee for the costs of repair, rebuilding or restoration of building(s) or other improvements on the Premises, Mortgagee shall be or become entitled to accelerate the maturity of the indebtedness, then and in such event, Mortgagee shall be entitled to apply all such insurance proceeds and condemnation awards then held by or for it in reduction of the indebtedness secured hereby.
3.
No Removal
. That no building, improvement or any of the Equipment of material value now or hereafter covered by the lien of this Mortgage shall be removed, demolished or materially altered or enlarged, nor shall any new building or improvement be constructed without prior written notice to the Mortgagee, except that the Mortgagor shall have the right, without such notice, to remove and dispose of, free from the lien of this Mortgage, such Equipment as from time to time may become worn out or obsolete, provided that either (a) simultaneously with or prior to such removal any such Equipment shall be replaced with other Equipment of a value at least equal to that of the replaced Equipment and free from any title retention or security agreement or other encumbrance, and by such removal and replacement the Mortgagor shall be deemed to have subjected such equipment to the lien of this Mortgage, or (b) any net cash proceeds received from such disposition shall be paid over promptly to the Mortgagee to be applied to the last installments due on the indebtedness secured without any charge for prepayment.
6
4.
Acceleration
. That the entire principal sum together with all accrued and unpaid interest thereon and any additional sums which this Mortgage secures shall become immediately due and payable at the option of the Mortgagee (a) if default be made in the due and punctual payment of the Note, or any installment due in accordance with the terms thereof, either of principal or interest or in the payment of any other sum required to be paid by Mortgagor or the maker of the Note as set forth in the Note or pursuant to the terms of any other loan document executed in connection with this Mortgage or the indebtedness secured hereby, and any such default continues after the expiration of any applicable grace or cure period; or (b) after default in the payment of any tax, water rate or assessment for five (5) days after notice and demand; or (c) after default either in assigning and delivering the policies of insurance herein described or referred to, or in reimbursing the Mortgagee for premiums paid on such insurance, as herein provided; or (d) after default upon request in furnishing a statement of the amount due on this Mortgage and whether any offsets or defenses exist against the Mortgage debt, as hereinafter provided; or (e) after default in the payment of any installment which may be then due or delinquent of any assessment for local improvement which may now or hereafter affect the Premises for five (5) days after notice and demand; or (f) upon the actual or threatened waste, removal or demolition of, or material alteration to or enlargement of, any part of the Premises, buildings, improvements or Equipment thereon, or construction of any new buildings or improvements thereon, except as permitted by Article 3; or (g) upon default in keeping in force the insurance required herein; or (h) upon assignment by the Mortgagor of the whole or any part of the rents, income or profits arising from the Premises without the written consent of the Mortgagee; or (i) failure to remove any Federal or state tax lien on the Premises within thirty (30) days after notice and demand; or (j) after default in the observance or performance of any other covenants or agreements of the Mortgagor hereunder not providing for immediate acceleration, for thirty (30) days after notice and demand from Mortgagee; or (k) upon the election by the Mortgagee to accelerate the maturity of said principal sum pursuant to the provisions of the Note or of any other instrument which may be held by the Mortgagee as additional security for the Note; or (l) if Mortgagor is not paying its debts as such debts become due, becomes insolvent, files or has filed against it a petition under any chapter of the U.S. Bankruptcy Code, 11 U.S.C. Section 101 et seq. or any similar petition under any insolvency law of any jurisdiction ( and in the case of a petition filed against it, such petition is not dismissed within 30 days), promises any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, makes an assignment or trust mortgage for the benefit of creditors or if a receiver, trustee, custodian or similar agent is appointed or takes possession with respect to the Premises; or (m) if any default shall occur under any other mortgage encumbering the Premises or if any foreclosure of any mortgage or any lien of any kind on the Premises or any part thereof should be commenced; or (n) any levy or sale upon execution or other proceedings of any nature shall occur whereby the Mortgagor shall be deprived of its title or right of possession to the Premises or the Equipment or any part thereof.
5.
Mortgagee's Right to Cure Mortgagor's Defaults
. Mortgagor covenants and agrees that Mortgagee shall have the right, but not the obligation, at any time, and from time to time, to cure any then existing default by the Mortgagor of any of Mortgagor's covenants, agreements and provisions herein to be performed and observed. In the event of any default in the performance of any of the Mortgagor's covenants, agreements or provisions herein, the Mortgagee may, at the option of the Mortgagee, perform the same, and all cost thereof, with interest at the Default Rate defined in the Note (" Default Rate "), shall be so much additional
7
indebtedness secured hereby and shall become immediately due and payable from the Mortgagor to the Mortgagee without notice and shall be paid to Mortgagee on demand.
6.
Payment of Impositions
. That Mortgagor will pay all taxes, assessments, water rates, sewer rents, gas, electric and all other charges ordinary and extraordinary of every kind and nature whatsoever and any prior liens now or hereafter assessed or liens on or levied against the Premises or Equipment or any part of either thereof, when the same are due and payable; that in the event of Mortgagor's default in the payment thereof when the same shall be due and payable, it shall be lawful for the Mortgagee, without notice or demand to the Mortgagor, to pay the same or any of them but Mortgagee shall have no obligation to pay such amounts; and the moneys paid by the Mortgagee in discharge of taxes, assessments, water rates, sewer rents, gas, electric and other charges and prior liens shall be a lien on the Premises added to the amount of said Note and secured by this Mortgage, payable on demand, with interest at the Default Rate; and that upon request of the Mortgagee, the Mortgagor will exhibit to the Mortgagee receipts for the payment of all items specified in this Article prior to the date when the same shall become delinquent.
7.
Appointment of Mortgagee in Possession or Receiver
. That upon or at any time after the filing of a complaint to foreclose this Mortgage, Mortgagee shall have the right to be appointed by the court as mortgagee in possession, or to have a receiver appointed, to take possession of the Premises; that either such appointment may be made either before or after sale, without notice and without regard to the solvency or insolvency of the Mortgagor at the time of application for mortgagee in possession or receiver and without regard to the then value of the Premises, even if the apparent value of the Premises exceeds the indebtedness secured hereby by a substantial amount, or whether the Premises shall be then occupied as a homestead or not; that Mortgagee as mortgagee in possession, or the receiver, shall have power to collect the rents, revenues, income, receipts, issues and profits of the Premises during the pendency of such foreclosure suit through the date of a confirmed sale of the Premises, and shall have all other powers which are granted by law or which may be necessary or are usual in such cases for the protection, possession, control, management and operation of the Premises; and that Mortgagee as mortgagee in possession, or the receiver, out of such rents, revenues, income, receipts, issues and profits, may pay, in any such order as determined by Mortgagee or such receiver, costs incurred in the management and operation of the Premises, prior and subordinate liens, if any, taxes, assessments, and insurance, and may pay all or any part of the indebtedness secured hereby or by any deficiency decree. The Mortgagee, as mortgagee in possession, or the receiver, may serve in such capacities without bond if permitted by law and by Mortgagee.
8.
Certification of Mortgage Balance
. That the Mortgagor, within five (5) days after the request of Mortgagee, shall furnish to the Mortgagee or to any proposed assignee of this Mortgage, a written and duly acknowledged estoppel certificate in form and substance satisfactory to Mortgagee, including without limitation a statement and acknowledgment of the amount due and owing under the Note and under this Mortgage, whether any event has occurred which, with the passage of time or the giving of notice, or both, would constitute an event of default hereunder or under any other loan documents, and whether any alleged offsets or defenses exist against the indebtedness secured hereby or against this Mortgage.
8
9.
Mortgagor's Representation of Title
. That the Mortgagor represents and warrants to Mortgagee and any purchaser at any foreclosure sale that the Mortgagor has good title to the Premises, and buildings and improvements thereon, and good title to the Equipment and has the right to mortgage the same and that the Mortgagor shall and will make, execute, acknowledge and deliver in due form of law, all such further or other deeds or assurances as may at any time hereafter be reasonably desired or required for more fully and effectually conveying the Premises, buildings and improvements thereon, and the Equipment by this Mortgage described, and hereby granted or intended so to be, unto the Mortgagee, for the purpose aforesaid, and will warrant and defend the said granted Premises, buildings and improvements thereon, and Equipment unto all and every person or persons, corporation or corporations, deriving any estate, right, title or interest therein, under this Mortgage.
10.
Filing Fees
. That Mortgagor will pay all filing, registration, recording and search and information fees, and all expenses incident to the execution and acknowledgment of this Mortgage and all other documents securing the indebtedness secured hereby and all federal, state, county and municipal taxes, other taxes, duties, imposts, assessments and charges arising out of or in connection with the execution, delivery, filing, recording or registration of the indebtedness secured hereby, this Mortgage and all other documents securing the indebtedness secured hereby and all assignments thereof. Mortgagor shall pay all Florida documentary stamp tax and intangible tax now or hereafter applicable to this Mortgage and the Note.
11.
Imposition of Mortgage Taxes
. That in the event of the passage after the date of this Mortgage of any law of any legislative authority having jurisdiction over the Premises, deducting from the value of real property for the purposes of taxation any lien thereon or changing in any way the laws for the taxation of mortgages or debts secured by mortgages for state or local purposes or the manner of the collection of any such taxes, and imposing a tax, either directly or indirectly, on this Mortgage or the Note, the holder of this Mortgage and of the debt which it secures shall have the right to declare the principal sum and the interest due on a date to be specified by not less than thirty (30) days' written notice to be given to the Mortgagor by the Mortgagee, provided, however, that such election shall be ineffective if the Mortgagor is permitted by law to pay the whole of such tax in addition to all other payments required hereunder and if, prior to such specified date, does pay such tax and agrees to pay any such tax when thereafter levied or assessed, and such agreement shall constitute a modification of this Mortgage. If, by the laws of the United States of America, or of any state having jurisdiction over the Mortgagor, any tax is due or becomes due in respect of the issuance of the Note or this Mortgage or any related agreements or documents, the Mortgagor shall pay such tax in the manner required by such law.
12.
Mortgagee's Right to Recover Expenses
. That if the Mortgagee shall incur or expend any sums, including attorney's fees and disbursements, whether in connection with any action or proceeding or not, to sustain the lien of this Mortgage or its priority, or to protect or enforce any of its rights hereunder, or to recover any indebtedness hereby secured, or for any title examination or title insurance policy relating to the title to the Premises, all such sums shall on notice and demand be paid by the Mortgagor, together with the interest thereon at the Default Rate and shall be a lien on the Premises, prior to any right or title to, interest in, or claim upon, the Premises subordinate to the lien of this Mortgage, and shall be deemed to be secured by this Mortgage and evidenced by the Note; and that in any action or proceeding to foreclose this
9
Mortgage, or to recover or collect the debt secured thereby, the provisions of law respecting the recovery of costs, disbursement and allowances shall prevail unaffected by this covenant. The Mortgagee, in making any payment (a) relating to taxes and assessments, may do so according to any bill, statement or estimate, without inquiry into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof; (b) for the purchase, discharge, compromise or settlement of any other prior lien, may do so without inquiry as to the validity or amount of any claim for lien which may be asserted; or (c) in connection with the completion of construction, furnishing or equipping of the buildings, improvements on the Premises or the rental, operation or management of the Premises or the buildings and improvements thereon or the payment of operating costs and expenses thereof, Mortgagee may do so in such amounts and to such persons as Mortgagee may deem appropriate and may enter into such contracts therefor as Mortgagee may deem appropriate or may perform the same itself.
13.
Mortgagor to Maintain Premises
. That the Mortgagor will maintain the Premises and the buildings and other improvements thereon and the Equipment in good condition and repair, will not commit nor suffer any waste on or to the Premises, will comply with, or cause to be complied with, all statutes, ordinances and requirements of any governmental authority relating to the Premises; that Mortgagor shall observe and comply with all conditions and requirements necessary to maintain in force the insurance required herein and to preserve and extend any and all rights, licenses, permits (including, but not limited to, zoning variances, special exceptions, and non-conforming uses) privileges, franchises, and concessions which are applicable to the Premises or which have been granted to or contracted for by Mortgagor in connection with any existing or presently contemplated use of the Premises and that in the event that any building or other improvement on the Premises must be altered or removed to enable Mortgagor to comply with the foregoing provisions of this Article, Mortgagor shall not commence any such material alterations or removals without Mortgagee's prior approval of the need therefor and the plans and specifications pertaining thereto and after such approval, Mortgagor at its sole cost and expense, shall effect the alterations or removal so required and approved by Mortgagee; that Mortgagor shall not, by act or omission, permit any building or other improvement on land not subject to the lien of this Mortgage to rely on the Premises or any part thereof or any interest therein to fulfill any governmental or municipal requirement, and Mortgagor hereby assigns to Mortgagee any and all rights to give consent for all or any portion of the Premises or any interest therein to be so used and similarly, no building or other improvement on the Premises shall rely on any land not subject to the lien of this Mortgage or any interest therein to fulfill any governmental or municipal requirement; nor shall Mortgagor, by act or omission, impair the integrity of the Premises as zoning lots separate and apart from all other land and any such act or omission by Mortgagor shall be void; that Mortgagor will promptly repair, restore, replace, or rebuild as nearly as possible to the value, condition and character immediately prior to such damage or destruction any material part of the Premises, the buildings and improvements thereon and the Equipment now or hereafter subject to the lien of this Mortgage which may be damaged or destroyed by any casualty whatsoever or which may be affected by any proceeding of the character referred to in Article 14 and which have any material value; that the Mortgagor will complete and pay for, within a reasonable time, any structure at any time in the process of construction on the Premises; and that the Mortgagor will not initiate, join in, or consent to any change in any private restrictive covenant, zoning ordinance, or other public or private restrictions, limiting or affecting the uses which may be made of the Premises or any part thereof or the buildings or improvements thereon; that the Mortgagor will maintain,
10
clean, repair, police and adequately light parking areas within the Premises, together with any sidewalks, aisles, streets, driveways and sidewalk cuts and paved areas for ingress, egress and right-of-way to and from the adjacent public thoroughfares necessary or desirable for the use thereof; and Mortgagor will reserve and use all such parking areas solely and exclusively for the purpose of providing ingress, egress and parking facilities for automobiles and other passenger vehicles of Mortgagor or tenants or invitees of tenants of the Premises; and Mortgagor will not reduce, build upon, obstruct, redesignate or relocate any such parking areas, sidewalks, aisles, streets, driveways, sidewalk cuts or paved areas or right-of-way or lease or grant any rights to use the same to any other person except tenants and invitees of tenants of the Premises without the prior written consent of Mortgagee.
14.
Condemnation
. That notwithstanding any taking by condemnation or eminent domain, alteration of the grade of any street or other injury to or decrease in value of the Premises including any easement therein, or appurtenance thereto or severance of any part thereof, or any buildings or other improvements thereon by any public or quasi-public authority or corporation, the interest required by the Note shall be calculated on the entire principal sum secured until any such award or payment shall have been actually received by the Mortgagee and any reduction in the principal sum resulting from the application by the Mortgagee of such award or payment as hereinafter set forth shall be deemed to take effect only on the date of such receipt; that such award or payment may, at the option of the Mortgagee, be retained and applied by the Mortgagee toward payment of the monies secured by this Mortgage then most remotely to be paid, or be paid over wholly or in part to the Mortgagor or an escrowee of Mortgagee's choice for the purpose of altering, restoring or rebuilding any part of the Premises which may have been altered, damaged or destroyed as a result of any such taking, alteration of grade, or other injury to the Premises, or for any other purpose or object satisfactory to the Mortgagee, but the Mortgagee shall not be obligated to see to the application of any amount paid over to the Mortgagor; and that if prior to the receipt by the Mortgagee of such award or payment the Premises or any part thereof shall have been sold on foreclosure of this Mortgage, the Mortgagee shall have the right to receive said award or payment to the extent of any deficiency found to be due upon such sale, with legal interest thereon, whether or not a deficiency judgment on this Mortgage shall have been sought or recovered or denied, and of the reasonable counsel fees, costs and disbursements incurred by the Mortgagee in connection with the collection of such award or payment. Any and all awards or payment heretofore or hereafter made or to be made to Mortgagor and all subsequent owners of the Premises in connection with the foregoing are hereby assigned to Mortgagee by Mortgagor and Mortgagor hereby irrevocably constitutes and appoints Mortgagee as the true and lawful attorney in fact of Mortgagor with full power of substitution for Mortgagor and in its name, place and stead to collect and receive the proceeds of any such award granted by virtue of any such taking and to give proper receipts and acquittances therefor. Mortgagee shall have the right to intervene and participate in any proceeding for and in connection with any taking referred to in this Article; provided, however, that if such intervention shall not be permissible or permitted by the court, Mortgagor, at its expense, shall consult with Mortgagee, its attorney and experts and shall make all reasonable efforts to cooperate with them in any defense of such proceedings. Mortgagor shall not enter into any agreement for the taking of the Premises, or any part thereof, or for alteration of the grade of any street or other injury to or decrease in value of the Premises with any person or persons authorized to acquire the same by condemnation or eminent domain, unless Mortgagee shall have first consented thereto in writing.
11
15.
Copies of Leases and Facilities for Mortgagee's Inspection
. That on demand the Mortgagor will furnish to the Mortgagee executed counterparts of any and all leases of the Premises or any part thereof and the buildings and improvements thereon and provide Mortgagee with convenient facilities for the audit and verification of any statements required to be furnished by Mortgagor hereunder.
16.
Mortgagee's Right to Inspect
. That the Mortgagee and any persons authorized by the Mortgagee shall have the right to enter and inspect the Premises at all reasonable times; and that if, at any time after default by the Mortgagor in the performance of any of the terms, covenants or provisions of this Mortgage, the Note or the Other Loan Documents, the management or maintenance of the Premises shall be determined by the Mortgagee to be unsatisfactory, the Mortgagor shall employ, for the duration of such default, as managing agent of the Premises, any person or entity from time to time designated by the Mortgagee. Mortgagee reserves the right to charge Mortgagor a fee of $200.00, plus expenses, for each inspection by Mortgagee or its agent to confirm correction by Mortgagor of unsatisfactory conditions pertaining to Premises maintenance, management, state of repair and governmental compliance.
17.
Lease Approval Rights
. Mortgagor shall have the right during the term of the Loan to enter into leases and other rental arrangements with respect to the Premises in the ordinary course of its business, provided that Mortgage shall provide notice to Mortgagee promptly after entering into any such agreement.
18.
Mortgagee's Right to Enforce Remedies and Take Possession
. That the Mortgagee shall have the right from time to time to enforce any legal or equitable remedy against the Mortgagor and to sue for any sums whether interest, damages for failure to pay principal or any installment thereof, taxes, installments of principal, or any other sums required to be paid under the terms of this Mortgage, the Note, or any other instruments securing the Note, as the same become due, without regard to whether or not the principal sum secured or any other sums secured by the Note and Mortgage and other instruments shall be due and without prejudice to the right of the Mortgagee thereafter to enforce any remedy against the Mortgagor including an action of foreclosure, or any other action, for a default or defaults by the Mortgagor existing at the time such earlier action was commenced. Mortgagee shall be entitled to recover judgment against Mortgagor, any guarantor, surety or other person or entity liable for all or any portion of the indebtedness hereby secured either before or after or during the pendency of any proceedings for the enforcement of the terms, covenants and provisions of this Mortgage; and the right of Mortgagee to recover such judgment shall not be affected by any entry or sale hereunder or the exercise of any other right, power or remedy for the enforcement of the provisions of this Mortgage or the foreclosure of the lien hereof; and in the event of a sale of the Premises or any portion thereof and of the application of the proceeds of sale to the payment of the indebtedness hereby secured, Mortgagee shall be entitled to enforce payment of, and to receive all amounts then remaining due and unpaid upon, the Note, and to enforce payment of all other charges, payments and costs due under this Mortgage. In the event of proceedings against Mortgagor in insolvency or bankruptcy or any proceedings for Mortgagor's arrangement or reorganization or involving the liquidation of its assets, Mortgagee shall be entitled to prove the whole amount of principal and interest due upon the Note to the full amount thereof, and all other payments, charges and costs due under this Mortgage without deducting therefrom any proceeds obtained from the sale of the whole or any part of the Premises; provided, however, that in no case shall
12
Mortgagee receive a greater amount then such principal and interest and such other payments, charges and costs from the aggregate amount of the proceeds of the sale of the Premises and the distribution from the estate of Mortgagor. In any case in which under the provisions of this Mortgage, Mortgagee has a right to institute foreclosure proceedings, whether before or after the whole principal sum secured hereby is declared to be immediately due as aforesaid, or whether before or after the institution of legal proceedings to foreclose the lien hereof or before or after sale thereunder, forthwith, upon demand of Mortgagee, Mortgagor shall surrender to Mortgagee and Mortgagee shall be entitled to take actual possession of the Premises or any part thereof personally, or by its agents or attorneys and Mortgagee in its discretion may, with or without force and with or without process of law, enter upon and take and maintain possession of all or any part of the Premises, together with all documents, books, records, papers and accounts of Mortgagor, or then owner of the Premises including, without limitation, accounts holding tenant security deposits, relating thereto, and may exclude Mortgagor, its agents or servants, wholly therefrom and may as attorney in fact (and Mortgagor hereby so appoints Mortgagee with full power of substitution for Mortgagor and in its name, place and stead) or agent of Mortgagor, or in its own name as Mortgagee and under the powers herein granted, hold, operate, manage and control the Premises and conduct the business, if any, thereof, either personally or by its agents, contractors or nominees and with full power to use such measures, legal or equitable, as in its discretion or in the discretion of its successors or assigns may be deemed proper or necessary to enforce the payment or security of the avails, rents, issues and profits of the Premises, including actions for the recovery of rent, actions in forcible detainer and actions in distress for rent, with full power and authority to exercise each and every of the rights, privileges and powers herein granted at any and all times hereafter, without notice to Mortgagor, and with full power: (i) to cancel or terminate any lease or sublease for any cause or on any ground which would entitle Mortgagor to cancel the same; (ii) to elect to disaffirm (except Mortgagee may not disaffirm any lease it specifically approved) any lease or sublease made subsequent to this Mortgage or subordinated to the lien hereof; (iii) to make all necessary or proper repairs, decorating, renewals, replacements, alterations, additions, betterments and improvements to the Premises, including completion of construction in progress, as to it may deem judicious; (iv) to insure and reinsure the same and all risks incidental to Mortgagee's possession, operation and management thereof; (v) to employ watchmen to protect the Premises; (vi) to continue any and all outstanding contracts for the erection and completion of improvements to the Premises; (vii) to make and enter into any contracts and obligations wherever necessary in its own name, and to pay and discharge all debts, obligations and liabilities incurred thereby, all at the expense of Mortgagor; (viii) to receive all avails, rents, issues, profits and proceeds therefrom and to perform such other acts in connection with the management and operation of the Premises as Mortgagee, in its discretion, may deem proper; (ix) intentionally deleted; and (x) to extend or modify any then existing leases and make new leases, which extensions, modifications and new leases may provide for terms to expire, or for options to lessees to extend or renew terms to expire, beyond the maturity date of the indebtedness hereunder and beyond the date of the issuance of a deed or deeds to a purchaser or purchasers at a foreclosure sale, it being understood and agreed that any such leases, and the options or other such provisions to be contained therein, shall be binding upon Mortgagor and all persons whose interests in the Premises are subject to the lien hereof and upon the purchaser or purchasers at any foreclosure sale, notwithstanding any redemption from sale, discharge of the Mortgage indebtedness, satisfaction of any foreclosure decree or issuance of any certificate of sale or deed to any purchaser. Mortgagee shall not be obligated to perform
13
or discharge, nor does it hereby undertake to perform or discharge, any obligation, duty or liability under any leases, and Mortgagor shall and does hereby agree to defend, indemnify and hold Mortgagee harmless of and from any and all liability, loss or damage which it may or might incur under said leases or under or by reason of the assignment thereof and of and from any and all claims and demands whatsoever which may be asserted against it by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants or agreements contained in said leases. Should Mortgagee incur any such liability, loss or damage, under said leases or under or by reason of the assignment thereof, or in the defense of any claims or demands, the amount thereof, including costs, expenses and attorneys' fees, shall be secured hereby, and Mortgagor shall reimburse Mortgagee therefor immediately upon written demand. Mortgagee, in the exercise of the rights and powers herein conferred upon it, shall have full power to use and apply the avails, rents, issues and profits of the Premises to the payment of or on account of the following, in such order as Mortgagee may determine: (a) to the payment of the operating expenses of the Premises including cost of management and leasing thereof (which shall include reasonable compensation to Mortgagee and its agent or agents, if management be delegated to an agent or agents, and shall also include lease commissions and other compensation and expenses of seeking and procuring tenants and entering into leases), established claims for damages, if any, and premiums on insurance hereinabove authorized; (b) to the payment of taxes and special assessments now due or which may hereafter become due on the Premises; (c) to the payment of all repairs, decorating, renewals, replacements, alterations, additions, betterments, and improvements of the Premises, and of placing said property in such condition as will, in the judgment of Mortgagee, make it readily rentable; and (d) to the payment of any indebtedness secured hereby or any deficiency which may result from any foreclosure sale.
19.
Recognition of Payments and Tender of Payment After Acceleration
. That any payment made in accordance with the terms of this Mortgage by any person at any time liable for the payment of the whole or any part of the sums now or hereafter secured by this Mortgage, or by any subsequent owner of the Premises, or by any other person whose interest in the Premises might be prejudiced in the event of a failure to make such payment, or by any stockholder, officer or director of a corporation, or by any partner of a partnership, or by any member of a limited liability company which at any time may be liable for such payment or may own or have such an interest in the Premises, shall be deemed, as between the Mortgagee and all persons who at any time may be liable as aforesaid or may own the Premises, to have been made on behalf of all such persons. Upon default by Mortgagor and following the acceleration of maturity as aforesaid, a tender of payment of the amount necessary to satisfy the entire indebtedness secured hereby made at any time prior to foreclosure sale by Mortgagor, its successors or assigns shall constitute an evasion of any prohibition against prepayment, the absence of the right of prepayment, or the premium required in connection therewith, whichever the case may be at the time, and any tender of payment in full following default shall be deemed to be a voluntary prepayment hereunder and such voluntary prepayment to the extent permitted by law, will therefore include any prepayment premium set forth in the Note and will, to the extent permitted by law, include a premium of five percent (5%) of the principal sum, if tender is made during the period, including the entire term of the Note if prepayment in full is prohibited during the entire term of the Note, in which prepayment in full is prohibited. In case, after legal proceedings are instituted to foreclose the lien of this Mortgage, tender is made of the entire indebtedness due hereunder, Mortgagee shall be entitled to reimbursement for expenses incurred in connection
14
with such legal proceedings, including such expenditures as are enumerated in this Mortgage, or as otherwise permitted to be added to the indebtedness secured hereby under applicable law, and such expenses shall be so much additional indebtedness secured by this Mortgage, and no such suit or proceedings shall be dismissed or otherwise disposed of until such fees, expenses and charges shall have been paid in full.
20.
No Waiver of Strict Performance
. That any failure by the Mortgagee to insist upon the strict performance by the Mortgagor of any of the terms, covenants and provisions hereof shall not be deemed to be a waiver of any of the terms, covenants and provisions hereof, and the Mortgagee, notwithstanding any such failure, shall have the right thereafter to insist upon the strict performance by the Mortgagor of any and all of the terms, covenants and provisions of this Mortgage to be performed by the Mortgagor; that neither the Mortgagor nor any other person now or hereafter obligated for the payment of the whole or any part of the sums now or hereafter secured by this Mortgage shall be relieved of such obligation by reason of the failure of the Mortgagee to comply with any request of the Mortgagor or of any other person so obligated to take action to foreclose this Mortgage or otherwise enforce any of the terms, covenants and provisions of this Mortgage or of any obligations secured by this Mortgage, or by reason of the release, regardless of consideration, of the whole or any part of the security held for the indebtedness secured by this Mortgage, or by reason of any agreement or stipulation between any subsequent owner or owners of the Premises and the Mortgagee extending the time of payment or modifying the terms of the Note or Mortgage without first having obtained the consent of the Mortgagor or such other person, and in the latter event, the Mortgagor and all such other persons shall continue to be liable for and shall continue to make such payments according to the terms of any such agreement of extension or modification unless expressly released and discharged in writing by the Mortgagee; that regardless of consideration, and without the necessity for any notice to or consent by the holder of any subordinate lien on the Premises, the Mortgagee may release the obligation of anyone at any time liable for any of the indebtedness secured by this Mortgage or any part of the security held for the indebtedness and may extend the time of payment or otherwise modify the terms of the Note, this Mortgage, or any other instrument securing the Note, without, as to the security or the remainder thereof, in anyway impairing or affecting the lien of this Mortgage or the priority of such lien, as security for the payment of the indebtedness hereby secured as it may be so extended or modified, over any subordinate lien, including without limitation, the right of Mortgagee to amend, modify and supplement the terms of the Note, this Mortgage, or any other instrument securing the Note, and to vary the rate of interest and the method of computing the same, and to impose additional fees and other charges, and to extend the maturity of the indebtedness hereby secured, in each and every case without obtaining the consent of the holder of any subordinate lien and without the lien of this Mortgage losing its priority over the rights of any subordinate lien; that the holder of any subordinate lien shall have no right to terminate any lease affecting the Premises whether or not such lease be subordinate to this Mortgage; that the Mortgagee may resort for the payment of the indebtedness secured hereby to any other security therefor held by the Mortgagee in such order and manner as the Mortgagee may elect; that acceptance by Mortgagee of any payment which is less than payment in full of all amounts due and payable at the time of such payment shall not constitute a waiver of Mortgagee's right to exercise its option to declare the whole of the principal sum then remaining unpaid, together with all accrued and unpaid interest thereon, and all other sums due hereunder, immediately due and payable without notice, or the waiver of any other rights of the Mortgagee at that time or any subsequent time, nor nullify any prior
15
exercise of such option or such rights of Mortgagee without its written consent except and to the extent otherwise provided by law. Nothing in this Article contained shall be construed as waiving any provision of this Mortgage which provides, among other things, that it shall be an event of default if the Premises, buildings or improvements thereon, or any part thereof or interest therein, is conveyed, sold, transferred, leased, or encumbered except as may be expressly permitted hereunder; nor shall Mortgagee's receipt of any awards, proceeds or damages under the terms of this Mortgage operate to cure or waive default in the payment of sums secured by this Mortgage.
21.
Rescission of Election
. That acceleration of maturity, once made by Mortgagee, may, at the option of Mortgagee, be rescinded, and any proceedings brought to enforce any rights or remedies hereunder may, at Mortgagee's option, be discontinued or dismissed, whereupon, in either of such events, Mortgagor and Mortgagee shall be restored to their former positions, and the rights, remedies and power of Mortgagee shall continue as if such acceleration had not been made or such proceedings had not been commenced, as the case may be.
22.
Mortgagee's Right to Foreclose
. That when the indebtedness secured hereby shall become due whether by acceleration or otherwise, the Mortgagee shall have the right to foreclose the lien hereof; that in any suit to foreclose the lien hereof, there shall be allowed and included as additional indebtedness in the decree for sale all expenditures and expenses which may be paid or incurred by or on behalf of the Mortgagee for attorneys' fees and disbursements, appraisers' fees, outlays for documentary and expert evidence, stenographers' charges, publication costs and costs (which may be estimated as to items to be expended after entry of the decree) of procuring all such abstracts of title, title searches and examinations, guarantee policies, and similar data and assurances with respect to title as Mortgagee may deem to be necessary either to prosecute such suit or to evidence to bidders at any sale which may be had pursuant to such decree the true condition of the title to or the value of the Premises; that all such expenditures and expenses shall become so much additional indebtedness secured hereby and immediately due and payable, with interest thereon at the Default Rate when paid or incurred by the Mortgagee; and that the proceeds of any such foreclosure sale shall be applied (after paying all costs and expenses incident to the foreclosure proceedings) first on account of all unpaid items which under the terms hereof constitute secured indebtedness additional to that evidenced by the Note, with interest thereon as herein provided; second, to the payment of all interest remaining unpaid on the Note; third, to the payment of all principal remaining unpaid under the Note; fourth, to the extent permitted by law, the amount of any prepayment premium (if any) that would otherwise be due and owing if this Mortgage and the Note were paid at that time; and lastly any surplus, if any, shall be paid to the Mortgagor or to any other person entitled thereto. In the event of an insured loss after foreclosure proceedings have been instituted, the proceeds of any insurance policy or policies shall be used to pay the amount due in accordance with any decree of foreclosure that may be entered in any such proceedings, and the balance, if any, shall be paid as the court may direct. In the case of foreclosure of this Mortgage, the court, in its decree, may provide that the mortgagee's clause attached to each of the casualty insurance policies may be canceled and that the decree creditor may cause a new loss clause to be attached to each of said casualty insurance policies making the loss thereunder payable to said decree creditors. In the event of foreclosure sale, the Mortgagee is hereby authorized, without consent of the Mortgagor, to assign any and all insurance policies to the purchaser at the sale, or to take such other steps as the Mortgagee may deem advisable to cause the interest of such purchaser to be protected by any
16
of the insurance policies. Any sale or sales made under or by virtue of full or partial foreclosure of the lien of this Mortgage whether by virtue of judicial proceedings, judgment or decree of foreclosure and sale or otherwise, shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of Mortgagor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against Mortgagor and against any and all persons claiming or who may claim the same, or any part thereof from, through or under Mortgagor. Upon any sale made by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, any person, including Mortgagor and Mortgagee, may bid for and acquire the Premises or any part thereof or the Equipment or other personalty thereon or any part thereof; and in lieu of paying cash therefor, Mortgagee may make settlement for the purchase price by crediting upon the indebtedness hereby secured the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which the Mortgagee is authorized to deduct under this Mortgage; provided, however, that any such credit bid shall not affect the continuing liability of Mortgagor or any guarantor of the Note, this Mortgage or the Other Loan Documents for any deficiency remaining after application of such sale proceeds to the indebtedness secured hereby.
23.
Waiver of Redemption
. The Mortgagor hereby waives any and all rights of redemption from foreclosure, judgment of foreclosure and sale under any statute or under any order, judgment or decree of foreclosure of this Mortgage, on behalf of the Mortgagor and on behalf of each and every person acquiring any interest in or title to the Premises subsequent to the date of this Mortgage, it being the intent hereof that any and all rights of redemption of Mortgagor and all other persons, are and shall be deemed to be waived to the fullest extent permitted by applicable law.
24.
Waiver of Defense and Statutory Rights
. No action for the enforcement of the lien and security interests created by this Mortgage or of any provision hereof shall be subject to any defense which would not be good and available to the party interposing same in an action at law upon the Note. Mortgagor shall not and will not apply for or avail itself of any appraisement, valuation, stay, extension or exemption laws or any so-called "moratorium laws", now existing or hereafter enacted, in order to prevent or hinder the enforcement or foreclosure of the lien and security interests of this Mortgage, but hereby waives the benefit of such laws. Mortgagor, for itself and all who may claim by, through or under Mortgagor, waives any and all right to have the property and estates comprising the Premises or the Equipment marshaled upon any foreclosure of the lien and security interests hereof and agrees that any court having jurisdiction to foreclose such lien and security interests may order the Premises and Equipment sold in its entirety. Mortgagee shall have the right and option in any suit to foreclose the lien of this Mortgage to obtain an order of judgment of foreclosure and sale subject to the rights of any tenant or tenants of the Premises. The failure to join any tenant or tenants of the Premises as party defendants in any such suit or the failure of any such order or judgment to foreclose their rights shall not be asserted by Mortgagor as a defense in any suit instituted to collect the indebtedness secured hereby, or any part thereof or any deficiency remaining unpaid after foreclosure and sale of the Premises, any statute or rule of law at any time existing to the contrary notwithstanding.
17
25.
Joint and Several Liability
. That if the Mortgagor consists of more than one person, such Mortgagors shall be jointly and severally liable under any and all obligations, covenants and agreements of the Mortgagor contained herein.
26.
Mortgagee's Remedies Cumulative
. That the rights of the Mortgagee arising under the clauses and covenants contained in this Mortgage shall be separate, distinct and cumulative and none of them shall be in exclusion of the others; that no act of the Mortgagee shall be construed as an election to proceed under any one provision herein to the exclusion of any other provision, anything herein or otherwise to the contrary notwithstanding.
27.
Definitions
. That wherever used in this Mortgage unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, the word "Mortgagor" shall mean "Mortgagor or any subsequent owner or owners of the Premises", the word " Mortgagee " shall mean "Mortgagee or any subsequent holder or holders of this Mortgage", the word "Note" shall mean any and all "note or notes, or bond or bonds secured by this Mortgage", the word " person " shall mean "an individual, corporation, partnership or unincorporated association", and the word " Premises " shall include the real estate hereinbefore described, together with all buildings, improvements, Equipment, condemnation awards, insurance proceeds, and any other rights or property interests at any time made subject to the lien of this Mortgage by the terms hereof, and the expression herein of any one or more such terms individually or together with other such terms shall not be deemed an exclusion of any of the other such terms not then expressed; and pronouns of any gender shall include the other genders, and either the singular or plural shall include the other; and the words "terms", "provisions", "obligations", "conditions", "covenants", "clauses" and "agreements" are deemed to be used interchangeably herein and that the use herein of any one or more of them shall not be deemed an exclusion of the others not then expressed.
28.
Amendments
. This Mortgage, the Note and the other instruments securing the Note, cannot be changed except by an agreement in writing signed by Mortgagee and Mortgagor. Any person, firm or corporation taking a junior mortgage, or other lien upon the Premises or any interest therein, shall take such lien subject to the rights of the Mortgagee herein to amend, modify and supplement this Mortgage, the Note and the other instruments securing the Note, and to extend the maturity of the indebtedness hereby secured, in each and every case without obtaining the consent of the holder of such junior lien and without the lien of this Mortgage losing its priority over the rights of any such junior lien.
29.
Mortgagor Power and Authority
. Mortgagor (a) is a limited liability company, duly formed, validly existing and in good standing under the laws of the State of Georgia and has complied with all conditions prerequisite to its doing business in the State of Florida; (b) has the power and authority to own the Premises and to carry on its business as now being conducted; (c) is qualified to do business in the State of Florida; and (d) is in compliance with all laws, regulations, ordinances and orders of public authorities applicable to it.
30.
Business Loan/Non Usurious
. Mortgagor represents and warrants that the proceeds of the Note secured by this Mortgage will constitute a business loan. All agreements in this Mortgage, the Note and any Other Loan Document are expressly limited so that in no contingency or event whatsoever, whether by reason of advancement or acceleration of maturity
18
of the indebtedness secured hereby, or otherwise, shall the amount paid or agreed to be paid hereunder for the use, forbearance or detention of money exceed the highest lawful rate permitted under applicable usury law. If, from any circumstances whatsoever, fulfillment of any provision hereof, of the Note or of any Other Loan Document, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by law, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity and if, from any circumstance whatsoever, Mortgagee shall ever receive as interest an amount which would exceed the highest lawful rate, the receipt of such excess shall be deemed a mistake and shall be canceled automatically or, if theretofore paid, such excess shall be credited against the principal amount of the indebtedness secured hereby to which the same may lawfully be credited, and any portion of such excess not capable of being so credited shall be rebated to Mortgagor.
31.
Tax and Insurance Premium Escrows
. After the occurrence of an Event of Default under this Mortgage or the Other Loan Documents, Mortgagor will deposit with Mortgagee an amount equal to the accrued general tax liability of the Premises, based on the most recently ascertainable taxes, through the Maturity Date, or such lesser amount as Mortgagee may require, and an amount equal to the insurance premium for the insurance coverage required to be maintained hereunder, or such lesser amount as Mortgagee may require. Mortgagee shall not be obligated to pay interest on any such sums so held on account of taxes or insurance premiums and all such sums may be commingled with Mortgagee's other funds. All amounts paid pursuant to the provisions of this Article are hereby pledged as additional security for the indebtedness secured hereby. In the event of a default hereunder or under the Note or the Other Loan Documents, the Mortgagee may, at its option and without being required so to do, apply any such funds to the Mortgagor's obligations hereunder or under the Note or the Other Loan Documents in such order and manner as the Mortgagee may elect. When the indebtedness secured hereby has been fully paid and all obligations of the Mortgagor to the Mortgagee have been fully performed, all funds deposited pursuant to this Article which have not been previously expended for the purposes herein allowed shall be returned to the Mortgagor or the then owner of the Premises, without interest.
32.
Subrogation
. Notwithstanding the release of record of Senior Liens (as hereinafter defined) Mortgagee shall be subrogated to the rights and liens of all superior titles, vendors' liens, mechanics' liens, or liens, charges, encumbrances, rights and equities on the Premises having priority to the lien of this Mortgage (" Senior Liens "), to the extent that any obligation secured thereby is directly or indirectly paid or discharged with proceeds or disbursements or advances of the indebtedness hereby secured, whether made pursuant to the provisions hereof or of the Note or any document or instrument executed in connection with the indebtedness hereby secured.
33.
Financial Statements
. Upon written request, Mortgagor shall furnish Mortgagee as soon as practicable after the end of each month, and in any event within fifteen (15) days thereafter, duplicate copies of monthly statements of income and expense and a periodic balance sheet of Mortgagor as of the end of each month or period, as the case may be and to the extent typically prepared by Mortgagor, prepared in accordance with generally accepted accounting principles consistently applied and certified to by the managing general partner, or a financial officer of the beneficiary of Mortgagor. If Mortgagor shall fail to prepare and deliver any statements, reports or other items to be submitted hereunder, within the time provided, then
19
Mortgagee may have a certified public accountant, selected by Mortgagee, audit Mortgagor's records and prepare such statements which shall be conclusive on Mortgagor and Mortgagor shall pay the expenses of such an audit and preparation of such statements on demand, together with the interest at the Default Rate from the date of demand.
34.
Mortgagee's Right to Comply with Prior Liens
. In the event of default hereunder by Mortgagor, and in addition to any other rights and remedies available to Mortgagee, Mortgagee may, but need not, make any payment or perform any act herein required of Mortgagor in any form and manner deemed expedient, and may, but need not, make full or partial payments of principal or interest on other prior encumbrances, if any, and purchase, discharge, compromise or settle any tax lien or other prior lien or title or claim thereof, or redeem from any tax sale or forfeiture affecting the Premises or contest any tax or assessment. All moneys paid for any of the purposes herein authorized and all expenses paid or incurred in connection therewith, including attorneys' fees, and any other money advanced by Mortgagee to protect the Premises and the lien hereof, shall be so much additional indebtedness secured hereby, and shall become immediately due and payable without notice and with interest thereon at the Default Rate until paid. Inaction of Mortgagee shall never be considered as a waiver of any right accruing to it on account of any default on the part of Mortgagor.
35.
Mortgagor's Additional Duties to Maintain the Premises
. Mortgagor covenants and agrees to keep the buildings, improvements and Equipment on the Premises with any material value in good repair, pay all operating costs thereof and shall neither suffer nor commit any waste on or to the Premises, and if Mortgagor fails to make any such repairs or suffers or commits waste, Mortgagee may elect to make such repairs or eliminate such waste, and the cost thereof shall be so much additional indebtedness secured hereby, and shall become immediately due and payable without notice and with interest thereon at the Default Rate until paid. In addition, Mortgagor shall not suffer nor permit any mechanic's lien or other liens to attach to or be filed or recorded against the Premises, the same being deemed a default hereunder, unless Mortgagor shall in good faith and with due diligence, contest the same or the validity thereof by appropriate legal proceedings which shall have the effect of preventing the collection of such lien or liens so contested; provided that, pending any such legal proceedings Mortgagor shall give Mortgagee such security as may be deemed satisfactory to Mortgagee to insure payment of the amount of such lien or liens and all interest and penalties thereon. If, at any time during the continuance of such contest, the Premises or any part thereof is, in the judgment of Mortgagee, in danger of being forfeited or lost, Mortgagee may use such security for the payment of such lien or liens.
36.
Duty to Replace Fixtures and Equipment
. Mortgagor shall replace all broken glass with glass of the same size and quality as that broken, and will replace all damaged heating, plumbing, electrical and air-conditioning fixtures and other Equipment with other of equal quality and will keep the Premises, buildings and improvements thereon in clean and healthful condition according to all applicable governmental regulations and ordinances and the direction of the proper public officers pending final payment to Mortgagee. Mortgagor further agrees to promptly replace with items of equal quality, any and all items of personal property that wear out during the course of the term of this Mortgage. Mortgagor shall keep the Premises, buildings and improvements thereon free from any and all code violations and shall promptly correct or commence to correct with due diligence the same within thirty (30) days after notice of any such
20
violations. Mortgagor further agrees that any items used by Mortgagor in replacement of any of the foregoing items of personal property, fixtures or Equipment shall be new and shall be fully paid upon installation and shall not be purchased or leased under any title retention contract or agreement whatsoever. All such replacement items shall be subject to the lien of this Mortgage and Mortgagee shall have a security interest in all such replacement items.
37.
Hold Harmless
. Mortgagor covenants and agrees that it will defend, save and keep Mortgagee forever harmless and indemnified against and from any and all penalties, damages, liabilities, defenses, judgments, expenses and charges imposed for any violation of any laws or ordinances, whether occasioned by the neglect of Mortgagor or those holding under Mortgagor, and that Mortgagor will at all times defend, save and keep Mortgagee forever harmless and indemnified against and from any and all loss, cost, damage, liability, judgment and expense arising out of or from any accident or other occurrence on or about the Premises, causing injury to any person or property whomsoever or whatsoever, and will defend, save and keep Mortgagee forever harmless and indemnified against and from any and all claims and against and from any and all loss, cost, damage, liability, judgment and expense arising out of the failure of Mortgagor in any respect to comply with and perform any of the requirements and provisions of this Mortgage. In the event the Mortgagee suffers any loss, cost, damage, liability, judgment or expense as a result of the exercise by it of any of the rights and privileges accruing to it hereunder because of the Mortgagor's default hereunder or under the Note secured hereby or under the Other Loan Documents, then and in that event, Mortgagor shall be fully responsible for same and the same shall be immediately paid to the Mortgagee upon demand together with interest thereon at the Default Rate from the date on which same was incurred, and all such amounts shall be secured by the lien hereof.
38.
Tenant Security Deposits
. Mortgagor covenants and agrees to make prompt payment of any amount of security deposit, as the tenants of the Premises become entitled thereto, and hereby agrees to save and keep Mortgagee forever harmless and indemnified against any claim, judgment, liability or expense, including attorneys' fees, therefor made by any such tenants.
39.
Performance of Lessor's Duties and Compliance With Documents of Record
. Mortgagor covenants and agrees that it will faithfully observe and perform all obligations to be observed and performed by the lessor under all present leases and any future leases affecting the Premises, such present and future leases to include all residential and commercial leases and all laundry room and equipment leases, if any, and all service contracts and concession agreements. Mortgagor further covenants and agrees that Mortgagor will observe and perform all obligations to be observed and performed by the owner of the Premises under any document or instrument which may be from time to time of record and which may affect title to the Premises. In the event the Mortgagor for any reason fails to observe and perform any of such obligations, the Mortgagee may, but need not, perform same and the cost incurred by the Mortgagee in so doing shall constitute so much additional indebtedness secured hereby and shall become immediately due and payable without notice and with interest thereon at the Default Rate until paid.
40.
Assignment of Leases and Rents and Sales Contracts
. Mortgagor shall have the right to enter into leases and other agreements with regard to the development of the Premises without the prior consent of Mortgage, provided that Mortgagor shall promptly notify Mortgagee
21
after entering into any such agreement. T o further secure the indebtedness hereby secured, Mortgagor hereby sells, assigns and transfers unto Mortgagee all of the rents, leases, issues and profits now due and which may hereafter become due under or by virtue of any leases which may have been heretofore or may be hereafter made or agreed to by Mortgagor or the beneficiary or beneficiaries of Mortgagor or the agents of any of them or which may be made or agreed to by Mortgagee under the powers herein granted, it being the intention hereby to establish an absolute transfer and assignment of all such rents, leases, issues and profits thereunder, to Mortgagee. Mortgagor hereby irrevocably appoints Mortgagee its agent in its name, place and stead (with or without taking possession of the Premises as provided in this Mortgage) to rent, lease or let all or any portion of the Premises to any party or parties at such rental and upon such terms as said Mortgagee shall, in its discretion, determine, and to collect all of the rents, issues and profits arising from or accruing at any time hereafter, and all now due or that may hereafter become due under each and every of the leases, written or oral, or other tenancy existing, or which may hereafter exist on the Premises, with the same rights and powers and subject to the same immunities, exoneration of liability and rights of recourse and indemnity as Mortgagee would have upon taking possession pursuant to the provisions of this Mortgage. Mortgagor represents and agrees that no rent has been or will be paid by any person in possession of any portion of the Premises for more than one installment in advance and that the payment of none of the rents to accrue for any portion of said Premises has been or will be waived, released, reduced, discounted or otherwise discharged or compromised by Mortgagor. Mortgagor waives any rights of set off against any person in possession of any portion of the Premises. Mortgagor agrees that it will not assign any of the rents or profits of the Premises, except to Mortgagee or a purchaser or grantee of the Premises if so permitted by Mortgagee. Nothing herein contained shall be construed as constituting Mortgagee a mortgagee in possession in the absence of the taking of actual possession of the Premises by Mortgagee pursuant to the provisions of this Mortgage. In the exercise of the powers herein granted Mortgagee, no liability shall be asserted or enforced against Mortgagee, all such liability being expressly waived and released by Mortgagor. Mortgagor further agrees to assign and transfer to Mortgagee all future leases upon all or any part of the Premises and to execute and deliver, at the request of Mortgagee, all such further assurances and assignments in the Premises as Mortgagee shall from time to time require. Although it is the intention of the parties that the assignment contained in this Article shall be a present assignment, it is expressly understood and agreed, anything herein contained to the contrary notwithstanding, that Mortgagee shall not exercise any of the rights or powers conferred upon it by this Article until a default shall exist under this Mortgage and notice (if required) and the applicable grace periods (if any) shall have expired. From time to time, upon request Mortgagor will furnish Mortgagee with executed copies of each of the Leases. In the event Mortgagee requires that Mortgagor execute and record a separate collateral assignment of rents or separate assignments of any of the leases to Mortgagee, the terms and provisions of those assignments shall control in the event of a conflict between the terms of this Mortgage and the terms thereof.
41.
Security Agreement, UCC Financing Statements and Other Instruments
. This Mortgage, to the extent that it conveys or otherwise deals with personal property (tangible and intangible) or with items of personal property which are or may become fixtures, shall also be construed as a security agreement under the Uniform Commercial Code as in effect in the state in which the Premises are located, and this Mortgage constitutes a financing statement filed as a fixture filing in the Official Records of the County Recorder of the County in which the Premises
22
are located with respect to any and all fixtures included within the term "Equipment" as used herein and with respect to any other personal property that may now be or hereafter become such fixtures. At the request of Mortgagee, Mortgagor shall execute and deliver, in form and substance satisfactory to Mortgagee, a Security Agreement and Uniform Commercial Code Financing Statements, in multiple counterparts, covering the fixtures, chattels, and articles of personal property subject to the lien of this Mortgage. In the event Mortgagee requires that Mortgagor execute and record a separate Security Agreement and Uniform Commercial Code Financing Statements, the terms and provisions of those instruments shall control in the event of a conflict between the terms of this Mortgage and the terms thereof. Mortgagor shall do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered all such further acts, conveyances, notes, mortgages, security agreements, financing statements and assurances as Mortgagee shall require for accomplishing the purpose of this Mortgage. Without limitation of the foregoing, Mortgagor shall assign to Mortgagee, upon request, as further security for the indebtedness secured hereby, Mortgagor's interests in all agreements, contracts, licenses and permits affecting the Premises, such assignments to be made by instruments satisfactory to Mortgagee, but no such assignment shall be construed as a consent by the Mortgagee to any agreement, contract, license or permit or to impose upon Mortgagee any obligations with respect thereto.
42.
Litigation Expenses
. Mortgagor shall pay to Mortgagee all costs and expenses, including reasonable attorney's fees, incurred by Mortgagee in any action or proceeding to which Mortgagee may be made a party by reason of being a party to this Mortgage, and Mortgagor will pay to Mortgagee all costs and expenses, including reasonable attorney's fees, incurred by Mortgagee in enforcing any of the terms, covenants and provisions of this Mortgage or the Note or the Other Loan Documents and incurred in any action brought by Mortgagee against Mortgagor on account of the terms, covenants or provisions hereof or of the Note or the Other Loan Documents, and all such costs, expenses and reasonable attorney's fees may be included in and form a part of any judgment entered in any proceeding brought by Mortgagee against Mortgagor on or under this Mortgage.
43.
Late Payments-Mortgagee's Rights
. If Mortgagor is late in the making of any payment due under the Note secured hereby, Mortgagee shall have the right to increase the interest rate under the Note to the Default Rate until the default in payment is cured, charge a late payment fee equal to five percent (5%) of the delinquent payment and accelerate the principal balance and all accrued and unpaid interest due under the Note, all as provided in the Note.
44.
Continuation of Mortgagor's Obligations
. The obligations of Mortgagor under this Mortgage, and the Note it secures shall continue until the entire debt evidenced hereby and all other amounts that may become due hereunder, are paid, notwithstanding any action or actions of partial foreclosure which may be brought to recover any amount or amounts for installments of principal, interest, taxes, assessments, water rates, insurance premiums or other payments due and payable under the terms, covenants and provisions of this Mortgage.
2)
Due on Sale and Due on Further Encumbrance Provisions, Additional Causes for Acceleration . The entire principal sum together with accrued and unpaid interest thereon and any additional sums which this Mortgage secures, shall also become immediately due and payable, at the option of the Mortgagee (a) If the Premises, buildings and improvements thereon,
23
or any part thereof or any interest therein is conveyed, sold (including a sale on an installment basis or pursuant to so-called "articles of agreement"), transferred, leased (other than as permitted in the Construction Loan Agreement), encumbered or assigned in any manner whether voluntarily or involuntarily without the prior written consent of the Mortgagee; or (b) intentionally deleted; (c) With respect to Mortgagor in the event that any interest in Mortgagor is conveyed, sold, transferred, leased, encumbered, pledged as collateral or assigned, in any manner whether voluntarily or involuntarily without the prior written consent of the Mortgagee; or (d) If within ninety (90) days of the death, incompetency, or discharge of any party personally liable for payment of the Note secured hereby, whether as a maker or guarantor, there is not delivered to the Mortgagee an unconditional guaranty of the Note and this Mortgage prepared on a form approved by the Mortgagee, of a person whose financial reliability has been demonstrated to and approved by the Mortgagee; or (e) Mortgagor, or any member of Mortgagor, or any person, firm, partnership, venture (and in the case of a partnership or venture, a general partner or a venturer thereof), trust, limited liability company or corporation at any time guarantying all or any part of the indebtedness hereby secured (a " Guarantor ") becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature or makes an assignment for the benefit of creditors or applies for or consents to the appointment of a trustee, custodian or receiver for the major part of its property or such a trustee, custodian or receiver is appointed for Mortgagor, any member of Mortgagor, or any Guarantor or for the major part of the properties of any of them and is not discharged within forty-five (45) days after such appointment, or if bankruptcy, reorganization, arrangement, insolvency, readjustment, liquidation, dissolution or other proceedings for relief under any present or future bankruptcy law or laws or other statute, law or regulation for the relief of debtors are instituted by or against Mortgagor, any member of Mortgagor, or any Guarantor and if instituted against any such party are consented to or acquiesced in or are not dismissed within forty-five (45) days after such institution, or if Mortgagor, any member of Mortgagor, or any Guarantor takes any action to initiate or further any of the foregoing; or (f) Any event occurs or condition exists which is specified as an event of default in any separate assignment of leases and/or rents securing the Note or of any other instrument or document securing the Note or relating thereto; or (g) Any financial or other information submitted to Mortgagee by any Guarantor or submitted by Mortgagor, or any officers or members of Mortgagor, proves untrue in any material respect; or (h) The Premises are abandoned; or (i) Mortgagor or any officers or members of Mortgagor are dissolved; or any of the individual or individuals, entity or entities as of the date hereof comprising the managing member(s), controlling shareholder(s) or controlling member(s) of Mortgagor, cease to be managing member(s), controlling shareholder(s) or controlling member(s) other than by death or adjudicated incompetence; or (j) There shall be any change of the management agent or manager, or termination of the management contract for the Premises without Mortgagee's prior written consent; or (k) Mortgagor shall fail to maintain its existence or shall merge into or consolidate with any other corporation, firm, partnership, joint venture or limited liability company; convey, transfer, lease or otherwise dispose of all or substantially all of its property, assets or business; assume, guarantee or become primarily or contingently liable on any indebtedness or obligation of any other person, corporation, firm, partnership, joint venture or limited liability company, without prior written consent from Mortgagee.
46.
Future Advances
. This Mortgage is given to secure payment of the Note, whether the entire amount thereof shall have been advanced to the Mortgagor at the date hereof, or at a later date, or not at all, and to secure the payment and performance of all other liabilities and
24
obligations of Mortgagor under the Note or under any other loan documents made in connection with the Note or this Mortgage and any other amount of amounts that may be added to the indebtedness secured hereby under the terms of this Mortgage, all of which indebtedness being equally secured with and having the same priority as any amounts advanced at the date hereof. Pursuant to Section 697.04, Florida Statutes, it is agreed that any future advances made by Mortgagee to or for the benefit of Mortgagor from time to time under this Mortgage or other aforesaid loan documents within and whether or not such advances are obligatory or are made at the option of Mortgagee, or otherwise, made at any time from the date of this Mortgage, and all interest accruing thereon, shall be equally secured by this Mortgage and have the same priority as all amounts, if any, advanced as of the date hereof and be subject to all of the terms and provisions of this Mortgage with the proviso that (i) the aggregate amount of the indebtedness secured hereby together with all such additional sums advanced shall not exceed FORTY FOUR MILLION DOLLARS ($44,000,000.00), and (ii) such advances are made within twenty (20) years after the date of this Mortgage.
47.
Notices
. Any notice request or demand to be given hereunder shall be in writing, and shall be deemed to have been given when personally delivered, deposited for delivery with an overnight courier service such as Federal Express, or placed in the United States mail with proper registered or certified postage prepaid, return receipt requested, and in all cases addressed to the party concerned at the address shown below:
To Mortgagee: |
|
To Mortgagor: |
IA Orlando Sand, L.L.C. c/o Inland American Real Estate Trust, Inc. 2901 Butterfield Road Oak Brook, Illinois 60523 Attn: Roberta Matlin |
|
Fourth Quarter Properties 124, LLC 45 Ansley Drive Newnan, Georgia 30263 Attn: Stanley E. Thomas |
With a copy to: |
|
With a copy to: |
The Inland Real Estate Group, Inc. 2901 Butterfield Road Oak Brook, Illinois 60523 Attn: Robert Baum, Esq., General Counsel |
|
Jeffrey F. Montgomery
|
provided, however, that each of the foregoing addresses for notice may be changed from time to time by notice given to the other party, in the manner herein provided for.
48.
Successors and Assigns
. Whenever any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party and subsequent owners of the Premises; and all the terms, covenants and provisions in this Mortgage contained by or on behalf of Mortgagor, or by or on behalf of Mortgagee, shall bind and inure to the benefit of the respective successors and assigns of such parties, whether so expressed or not.
25
49.
Headings
. The headings in this instrument are for convenience of reference only and shall not limit or otherwise affect the meaning of any provision hereof.
50.
Assignment by Mortgagee
. This Mortgage may be assigned by the Mortgagee at any time and without notice to or prior approval of Mortgagor, its successors or assigns or grantees. The word "Mortgagee," when used herein, shall include the successors and assigns of the original Mortgagee named on the first page hereof, and the holder or holders, from time to time, of the Note. However, whenever the Note is sold and the purchaser assumes the obligations of the Mortgagee hereunder, each prior holder shall be automatically freed and relieved, on and after the date of such sale, of all liability with respect to the performance of each covenant and obligation of the Mortgagee hereunder thereafter to be performed, provided that any monies which are then held by the seller of the Note and in which the Mortgagor has an interest are paid or credited to the purchaser of the Note.
51.
Intentionally Omitted
.
52.
No Merger
. This Mortgage and the lien hereof shall not merge in fee simple title to the Premises, unless a contrary intent is ever manifested by Mortgagee as evidenced by an express statement to that effect in an appropriate document duly recorded. Therefore, it is hereby understood and agreed that should Mortgagee acquire any additional or other interests in or to the Premises or the ownership thereof, then this Mortgage and the lien hereof shall not merge in the fee simple title, toward the end that this Mortgage may be foreclosed as if owned by a stranger to the fee simple title.
53.
Jurisdiction
. This Mortgage and the Other Loan Documents shall be construed for all purposes and enforced in accordance with the laws of the State of Florida. If any term, covenant or provision of this Mortgage shall be held to be invalid, illegal, or unenforceable in any respect, this Mortgage shall be construed without such terms, conditions or provisions and remain in full force and effect. Without limiting the right of the Mortgagee hereof to bring any action or proceeding against the undersigned or against property of the undersigned arising out of or relating to this Mortgage (an " Action ") in the courts of other jurisdictions, the undersigned hereby irrevocably submits to the jurisdiction of any Florida state court sitting in Orange County, Florida, or federal court sitting in the Middle District of Florida; and the undersigned hereby irrevocably agrees that any Action may be heard and determined in any such state court or in either such Federal court. The undersigned hereby irrevocably waives, to the fullest extent possible, the defense of an inconvenient forum to the maintenance of any Action in any jurisdiction. The undersigned hereby irrevocably agrees that the summons and complaint or any process in any Action in any jurisdiction may be served on the undersigned by mailing to the address of the undersigned set forth herein or by hand delivery to a person of suitable age and discretion at the undersigned's address set forth herein. Such service will be complete on the date such process is so mailed or delivered, and the undersigned will have thirty days from such completion of service in which to respond in the manner provided by law. The undersigned may also be served in any other manner permitted by law, in which event the undersigned's time to respond shall be the time provided by law. Both the undersigned and the holder hereof hereby irrevocably waive all rights to trial by jury in any Action proceeding or counterclaim arising out or relating to this Mortgage, the Note and/or any other document executed in connection herewith or therewith.
26
54.
Hazardous Substances, Products and Wastes
. Subject to those matters disclosed in the environmental reports provided to Mortgagee by Mortgagor, Mortgagor shall cause the Premises to be at all times kept free of any and all substances, products, wastes and/or contaminants which may not lawfully be maintained on or in the Premises pursuant to any law, statute, ordinance, rule or regulation of any state, federal or other authority, whether presently existing or hereafter enacted or adopted, or the presence of which, in the reasonable estimation of the Mortgagee, is harmful or injurious to occupants and tenants of the Premises or others (such substances, products, wastes and/or contaminants being hereinafter called " Hazardous Substances "). In the event the Mortgagor fails at all times to keep the Premises free of any and all such Hazardous Substances, the Mortgagee may, but shall not be obligated to, enter upon the Premises and remove therefrom any and all Hazardous Substances, and the costs incurred by the Mortgagee in so doing shall be paid by the Mortgagor to the Mortgagee upon demand together with interest thereon at the Default Rate, and all such amounts, together with such interest, shall be secured by the lien hereof. The Mortgagor hereby grants to the Mortgagee, its agents, employees and independent contractors, and to its successors and assigns, an irrevocable easement and right of access over and upon the Premises to remove any Hazardous Substances therefrom and agrees to forever defend, indemnify, save and hold the Mortgagee, its agents, employees and independent contractors harmless from any and all claims, damages, liabilities, judgments, loss, costs and expenses, including attorney's fees, arising in connection therewith and, in addition, the Mortgagor agrees to forever defend, save, indemnify and hold the Mortgagee, its agents, employees and independent contractors harmless from any claims, damages, liabilities, judgments, costs and expenses, including attorney's fees, arising in any way in connection with or as a result of the existence at or in the Premises of any Hazardous Substances. If Mortgagee shall have a reasonable basis to believe that the provisions of this paragraph are being violated, then upon the Mortgagee's request, at any time and from time to time while this Mortgage is in effect, the Mortgagor agrees that it will provide, at the Mortgagor's sole cost and expense, an inspection or audit of the Premises prepared by an engineering or consulting firm approved by the Mortgagee indicating the presence or absence of Hazardous Substances on or in the Premises. If the Mortgagor fails to provide such inspection or audit within thirty (30) days of such request, the Mortgagee may obtain same and hereby grants to the Mortgagee and its employees, independent contractors and agents an easement over and right of access to the Premises for the purpose of conducting such inspection or audit and the cost thereof shall immediately upon demand be paid by the Mortgagor to the Mortgagee together with interest thereon at the Default Rate, and the same shall be deemed secured by the lien hereof. Mortgagor hereby covenants and agrees to defend, indemnify and save harmless Mortgagee, its officers, directors, employees, agents, attorneys, successors and assigns against and from any and all damages, losses, liabilities, obligations, claims, litigation, demands, defenses, judgments, suits, proceedings, fines, penalties, costs, disbursements and expenses (including without limitation attorneys' and experts' fees and expenses, clean-up costs, waste disposal costs and those costs, expenses, penalties and fines within the meaning of The Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.), of any kind or nature whatsoever which may at any time be imposed upon, incurred by or asserted or awarded against Mortgagee and arising from any violation or alleged violation of environmental laws, or environmental problems or other environmental matters, including without limitation matters arising out of any breach of Mortgagor's foregoing representations and warranties, whether any such matters arise before or
27
after delivery of this Mortgage, Mortgagee's taking possession of or operating any of the Premises or Equipment or foreclosure of this Mortgage (or delivery of a deed in lieu thereof or similar actions to the same effect).
55.
Mortgagee's Lien for Service Charge and Expenses
. At all times, regardless of whether any loan proceeds have been disbursed, this Mortgage secures (in addition to any loan proceeds disbursed from time to time) the payment of any and all loan commissions, service charges, liquidated damages, and all advances due to or incurred by Mortgagee, pursuant to the Note and the Other Loan Documents.
56.
Permitted Contests
. Mortgagor shall have the right to contest in good faith and with reasonable diligence the validity of any impositions, tax assessments, or mechanics' liens or claims upon furnishing (a) to the title insurance company approved by Mortgagee such security or indemnity as it may require to induce the title insurance company to issue its title insurance commitment or its mortgage title insurance policy insuring against all such claims or liens, in form satisfactory to Mortgagee and (b) to Mortgagee such other security with respect to such lien or claim as may be acceptable to Mortgagee.
57.
Intentionally Deleted
58.
Legal Construction .
i.
Mortgagor and Mortgage agree that, except as otherwise set forth below, the laws of the State of Florida shall govern the rights and duties of the parties hereto and the validity, construction, enforcement and interpretation of this Mortgage.
The parties agree that Mortgagee may enforce its rights under the Loan Documents, including, but not limited to, its rights to sue the undersigned or to collect any outstanding indebtedness, in accordance with applicable law.
B.
Nothing in this Mortgage, the Note or in any other agreement between the Mortgagor and the Mortgagee shall require the Mortgagor to pay, individually or together, or the Mortgagee to accept, interest in an amount which would subject the Mortgagee to any penalty under applicable law. In the event that the payment of any interest due hereunder or under the Note or any such other agreement would subject the Mortgagee to any penalty under applicable law, then ipso facto the obligations of the Mortgagor to make such payment shall be reduced to the highest rate authorized under applicable law.
59.
OFAC
. Mortgagor represents and covenants that it is not and will not become a person (individually, a Prohibited Person and collectively Prohibited Persons ) listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, U.S. Department of the Treasury (the OFAC List ) or otherwise subject to any other prohibitions or restrictions imposed by laws, regulations or executive orders, including Executive Order No. 13224, administered by OFAC (as may be amended from time to time, collectively the OFAC Rules ). Mortgagor represents and covenants that it also (i) is not and will not become owned or controlled by a Prohibited Person, (ii) is not acting and will not act for or on behalf of a Prohibited Person, (iii) is not otherwise associated with and will not become associated with a Prohibited Person, (iv) is not providing and will not provide any
28
material, financial or technological support for or financial or other service to or in support of acts of terrorism or a Prohibited Person. Mortgagor will not transfer any interest in Mortgagor to or enter into a Lease with any Prohibited Person. Mortgagor shall immediately notify Mortgagee if Mortgagor has actual knowledge (after commercially reasonable due diligence and inquiry) that any Guarantor or any member or beneficial owner of Mortgagor or Guarantor is or becomes a Prohibited Person or (A) is indicted on or (B) arraigned and held over on charges involving money laundering or predicate crimes to money laundering. Mortgagor will not enter into any lease or undertake any activities related to this Agreement in violation of the federal Bank Secrecy Act (as amended from time to time, the BSA ), 31 U.S.C. §5311, et seq. or any federal or state laws, including but not limited to 18 U.S.C. §§ 1956, 1957 and 1960, prohibiting money laundering and terrorist financing (as amended from time to time, collectively the Anti-Money Laundering Laws ). Mortgagor shall provide information as Mortgagee may require from time to time to permit Mortgagee to satisfy its obligations under the OFAC Rules and/or the Anti Money Laundering Laws. Mortgagor shall immediately notify Mortgagee if to Mortgagors actual knowledge (after commercially reasonable due diligence and inquiry) any Tenant becomes a Prohibited Person or (A) is convicted of, (B) pleads nolo contendere to, (C) is indicted on, or (D) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering. In addition to the foregoing, Mortgagor agrees to indemnify, defend and hold harmless Mortgagee for any actual Losses suffered or incurred (as applicable) by Mortgagee if Mortgagor does not company with this Section 4.1.36 or any of the provisions and requirements of the OFAC Rules, BSA and/or Anti Money Laundering Laws.
60.
Waiver of Jury Trial
A.
. MORTGAGOR AND MORTGAGEE HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE, THE NOTE OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY OR ANY EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER THIS MORTGAGE, THE NOTE OR THE LOAN DOCUMENTS OR IN ANY WAY RELATING TO THE LOAN OR THE PREMISES (INCLUDING, WITHOUT LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS MORTGAGE, THE NOTE OR ANY OF THE OTHER LOAN DOCUMENTS AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS MORTGAGE, THE NOTE OR ANY OF THE OTHER LOAN DOCUMENTS FRAUDULENTLY INDUCED OR ARE OTHERWISE VOID OR VOIDABLE); THIS WAIVER BEING A MATERIAL INDUCEMENT FOR MORTGAGEE TO ACCEPT THIS MORTGAGE.
29
IN WITNESS WHEREOF, Mortgagee caused this Mortgage to be executed and delivered as of the day and year first above written.
WITNESSES:
/s/ G. Lama Maddox Print Name: G. Lama Maddox
/s/ Deidra Willis_______________ Print Name: Deidra Willis |
Fourth Quarter Properties 124, LLC, a Georgia limited liability company
By: /s/ Stanley E. Thomas______ ___ Stanley E. Thomas Its: Sole Member
|
|
|
STATE OF Georgia |
) |
|
): SS |
COUNTY OF Coweta |
) |
The foregoing instrument was acknowledged before me on this 3 day of October, 2006, by Stanley E. Thomas, as sole member of Fourth Quarter Properties 124, LLC, a Georgia limited liability company, on behalf of said entities. He personally appeared before me, and is personally known to me or produced a current _________________________ as identification.
|
|
|
Notary:/s/ Lila M. Echols |
[NOTARIAL SEAL] |
Print Name: Lila M Echols |
|
Notary Public, State of Georgia |
|
My Commission expires: 4/11/2009 |
30
EXHIBIT "A"
From the Northeast corner of Section 31, Township 23 South, Range 29 East run South 00 degrees 14 minutes 20 seconds East 150.00 feet along the East boundary of the Northeast 1/4 of said Section 31 to a point on the south right-of-way line of State Road 482 (Sand Lake Road) as described in Official Records Book 223, Page 321 of the Public Records of Orange County, Florida; thence run South 89 degrees 32 minutes o7 seconds West 200.00; thence run South 00 degrees 14 minutes 20 seconds East 987.07 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the Northeast corner of that certain parcel of land described and recorded in Official Records Book 6983, Pages 2167 through 2172 of the Public Records of Orange County, Florida; thence along the Northerly boundary of said parcel of land with the following courses and distances, run North 89 degrees 54 minutes 59 minutes West 1144.66 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the beginning of a non-tangent curve, concave Northwesterly and having a radius of 1196.00 feet; thence from a tangent bearing of South 15 degrees 58 minutes 41 seconds West run Southwesterly 887.53 feet along the arc of said curve through a central angel of 42 degrees 31 minutes 05 seconds to a 4x4 concrete monument with disc stamped JWG LB 1 at the end of said curve; thence run South 58 degrees 29 minutes 46 seconds West 136.16 feet along a line 50.00 feet Southeast of and parallel with, when measured at right angles to the Southeasterly boundary of that certain Orange County Sewer Line Easement described and recorded in Official Records Book 3400, Page 1743 and Official Records Book 3406, Page 1334 and Official Records Book 3403, Page 495, Public Records of Orange County, Florida to a 4x4 concrete monument with disc stamped JWG LB 1; thence run North 89 degrees 54 minutes 59 seconds West 169.47 feet to the POINT OF BEGINNING; thence run North 89 degrees 54 minutes 59 seconds West 490.79 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP; thence leaving the aforesaid Northerly boundary, run North 00 degrees 11 minutes 03 seconds West 722.82 feet; thence run South 72 degrees 24 minutes 46 seconds East 213.71 feet to the beginning of a non-tangent curve concave Southwesterly and having a radius of 679.60 feet; thence from a tangent bearing of South 72 degrees 48 minutes 40 seconds East run Southeasterly 288.19 feet along the arc of said curve through a central angle of 24 degrees 17 minutes 49 seconds to the end of said curve and the beginning of a non-tangent curve concave Southwesterly and having a radius of 508.17 feet; thence from a tangent bearing of South 45 degrees 29 minutes 25 seconds East run Southeasterly 250.01 feet along the arc of said curve through a central angle of 28 degrees 11 minutes 19 seconds to the end of said curve and the beginning of a non-tangent curve concave Northwesterly and having a radius of 285.52 feet; thence from a tangent bearing of South 17 degrees 58 minutes 40 seconds East run Southwesterly 339.86 feet along the arc of said curve through a central angle of 68 degrees 11 minutes 58 seconds to the end of said curve and the Point of Beginning.
CONTAINING: 7.860 acres, more or less.
A-1
EXHIBIT 10.133
LOAN GUARANTY AGREEMENT
THIS LOAN GUARANTY AGREEMENT (the " Guaranty Agreement "), is made as of the 29th day of September, 2006, by STANLEY E. THOMAS and THOMAS ENTERPRISES, INC. (collectively, " Guarantor ") to IA Orlando Sand, L.L.C., a Delaware limited liability company (referred to herein as " Lender ").
W I T N E S S E T H:
WHEREAS, Fourth Quarter Properties 124, LLC, a Georgia limited liability company (the Borrower ), has requested from Lender a loan in the principal amount of Forty One Million Four Hundred Seventy Seven Thousand Sixty Two and 84/100 Dollars ($41,477,062.84) (the " Loan ") for the purpose of providing acquisition funding for that certain real estate located in the County of Orange, State of Florida, described on Exhibit "A" attached hereto and made a part hereof (the " Property "), and it will be of substantial economic benefit to the Guarantor for the Borrower to issue the Note and borrow the principal evidenced thereby, Guarantor expecting to receive, directly or indirectly, economic benefit from Borrower's acquisition and construction of the Property; and
WHEREAS, the Loan is to be evidenced by that certain Promissory Note dated as of even date herewith (the " Note ") in the principal amount of the Loan executed by Borrower and payable to the order of Lender and is to be secured by, inter alia, that certain First Mortgage and Security Agreement (the " Mortgage ") from Borrower to Lender, as mortgagee, which will encumber the Property and by certain other documents (the Note, the Mortgage and such other documents, as the same may from time to time be amended, being collectively referred to herein as the " Loan Documents "); and
WHEREAS, Lender is willing to extend the Loan only on the condition that Guarantor, irrevocably and unconditionally, fully guarantees to Lender the full and prompt payment when due of all principal, interest, default interest, late charges, fees, premiums and all other sums from time to time outstanding under the Loan Documents and the performance by Borrower of Borrower's obligations to duly, promptly and completely observe, perform and discharge each and every obligation, covenant and agreement contained in the Loan Documents. (All amounts from time to time outstanding under the Loan Documents, including, without limitation, principal, interest, default interest, late charges, fees, premiums and all other sums from time to time outstanding under the Loan Documents, are sometimes collectively referred to herein as the " Indebtedness "); and
WHEREAS, Guarantor is willing to irrevocably and unconditionally, fully guarantee the Indebtedness.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby covenants and agrees as follows:
1.
Guarantor hereby irrevocably, absolutely and unconditionally, fully guarantees to Lender: (a) the full and prompt payment when due, whether by lapse of time, declaration, acceleration or otherwise, and at all times thereafter, of any and all of the Indebtedness and the prompt payment to Lender of all costs and expenses (including attorneys' fees and disbursements) incurred by Lender in collection of the Indebtedness or the enforcement of this Guaranty Agreement against Guarantor; (b) the performance by Borrower of Borrower's obligation to duly, promptly and completely observe, perform and discharge each and every obligation, covenant and agreement contained in the Loan Documents; (c) any and all claims which may arise related to environmental issues affecting the Property, whether now existing or hereafter arising, and whether or not affecting the Property from adjacent or off-site sources; and (d) any costs, expenses and/or claims related to the existence of any munitions and/or ordinance on or about the Property. Guarantor agrees that if any of the Indebtedness is not paid according to the tenor thereof, whether by acceleration or otherwise, Guarantor shall immediately pay all of the Indebtedness as if the Indebtedness constituted the direct and primary obligation of Guarantor. Guarantor further agrees that if any obligation, covenant or agreement contained in any of the Loan Documents is not observed, performed or discharged as required by such instrument, Guarantor shall, observe, perform or discharge such obligation, covenant or agreement in like manner as if the same constituted the direct and primary obligation of Guarantor. Notwithstanding the satisfaction by Guarantor of any liability hereunder, Guarantor shall not have any right of subrogation, reimbursement or indemnity whatsoever or any right of recourse to or with respect to the assets or property of Borrower or to any collateral for the Loan unless and until Lender has received full payment of all principal, interest and other sums payable under the Loan. Guarantor understands and acknowledges that by virtue of this Guaranty it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding affecting Borrower, and, as an example and not by way of limitation, a subsequent modification of the Note or any of the other Loan Documents in any reorganization case concerning Borrower shall not affect the obligations of Guarantor hereunder.
2.
This Guaranty Agreement shall be in full force and effect continuously from the date hereof to and until the date (the " Termination Date ") on which the Note is repaid in full and any continuing liability of Guarantor pursuant to Paragraphs 5 and 29 of this Guaranty Agreement has been satisfied, whereupon this Guaranty Agreement shall terminate.
3.
Guarantor grants Lender, in Lender's sole and absolute discretion and without notice to Guarantor, the power and authority to deal in any lawful manner with the Indebtedness and, without limiting the generality of the foregoing, further power and authority, from time to time:
(a)
to renew, compromise, extend, accelerate or otherwise change the time or place of payment of or to otherwise change the terms of the Indebtedness or of any document relating thereto;
(b)
to modify or to waive any of the terms of any agreement with Borrower pertaining to the Indebtedness;
(c)
to take and hold security for the payment of the Indebtedness, and to exchange, enforce, waive or release any such security;
2
(d)
to direct the order or manner of sale of any such security as Lender in its discretion may determine; and/or
(e)
to grant any indulgence, forbearance, waiver or release to Borrower.
The liability of Guarantor shall not be terminated, affected, impaired or reduced in any way by any action taken by Lender under the foregoing provisions or any other provision hereof or by any delay, failure or refusal of Lender to exercise any right or remedy Lender may have against Borrower or any other person, including other guarantors, if any, liable for all or any part of the obligations guaranteed herein by Guarantor.
4.
Guarantor shall not have any right of recourse against Lender by reason of any action Lender may take or omit to take under the provisions of this Guaranty Agreement or under the provisions of any of the Loan Documents.
5.
Satisfaction by Guarantor of any liability hereunder incident to a particular default under the Note or under any of the other Loan Documents shall not discharge Guarantor except for the default satisfied, it being the intent hereof that this Guaranty Agreement and the obligations of Guarantor hereunder shall be continuing and irrevocable until the Termination Date. Further, if at any time all or any part of any payment received by Lender from Guarantor under or with respect to this Guaranty Agreement is or must be rescinded or returned for any reason whatsoever (including, but not limited to, the insolvency, bankruptcy or reorganization of Guarantor), then Guarantor's obligations hereunder shall, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous receipt of payment by Lender, and Guarantor's obligations hereunder shall continue to be effective or be reinstated, as the case may be, as to such payment, all as though such previous payment to Lender had never been made.
6.
Guarantor hereby waives notice of acceptance of this Guaranty Agreement by Lender, and this Guaranty Agreement shall immediately be binding upon Guarantor.
7.
To the extent permitted by law, Guarantor hereby waives and agrees not to assert or take advantage of: (a) any right to require Lender to proceed against Borrower or any other person or to proceed against or exhaust any security held by Lender at any time or to pursue any other remedy in Lender's power before proceeding against Guarantor hereunder; (b) the defense of the statute of limitations in any action hereunder or in any action for the collection of the Indebtedness or the performance of any obligation hereby guaranteed; (c) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other person or persons or the failure of Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other person or persons; (d) demand, presentment for payment, notice of non- payment, protest, notice of protest and all other notices of any kind, including, without limiting the generality of the foregoing, notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of Borrower, Lender, any endorser or creditor of Borrower or of Guarantor or of other guarantors or on the part of any other person whomsoever under this or any other instrument in connection with any obligation or evidence of indebtedness held by Lender as collateral or in connection with the Indebtedness hereby guaranteed; (e) any defense based upon an election of
3
remedies by Lender which destroys or otherwise impairs any or all of the subrogation rights, if any, of Guarantor, the right of Guarantor to proceed against Borrower or any other person for reimbursement, or both; (f) all duty or obligation on Lender's part to perfect, protect, retain or enforce any security for the payment of the Indebtedness; (g) any principle or provision of law, statutory or otherwise, which is or might be in conflict with the terms and provisions of this Guaranty Agreement; and (h) any duty on the part of Lender to disclose to Guarantor any facts Lender may now or hereafter know about Borrower, regardless of whether or not Lender has reason to believe that any such facts materially increase the risk beyond that which Guarantor intends to assume or has reason to believe that such facts are unknown to Guarantor or has a reasonable opportunity to communicate such facts to Guarantor, it being understood and agreed that Guarantor is fully responsible for being and keeping informed of the financial condition of Borrower and of any and all circumstances bearing on the risk that liability may be incurred by Guarantor hereunder.
8.
In addition to all liens and rights of setoff given to Lender by law against any property of Borrower or of Guarantor, Lender shall have a general lien on and security interest in and a right of setoff against all property of Guarantor now or hereafter in the physical possession of or on deposit with Lender, whether held in a general or special account, on deposit or for safekeeping or otherwise. Each such lien, security interest and right of setoff may be enforced or exercised without demand upon or notice to Guarantor at any time following the failure of performance by Guarantor hereunder, shall continue in full force unless specifically waived or released by Lender in writing and shall not be deemed waived by any conduct of Lender, by any failure of Lender to exercise any such right of setoff or to enforce any such lien or security interest or by any neglect or delay in so doing.
9.
With or without notice to Guarantor, Lender, in Lender's sole discretion and at any time and from time to time and in such manner and upon such terms as Lender deems fit, may: (a) apply any or all payments or recoveries from Borrower or from any other guarantor or endorser under any other instrument or realized from any security, in such manner and order of priority as Lender may determine, to any indebtedness of Borrower to Lender, whether or not such indebtedness is guaranteed hereby or is otherwise secured or is due at the time of such application; or (b) refund to Borrower any payment received by Lender upon the Indebtedness hereby guaranteed without affecting in any way Guarantor's obligation or liability hereunder for payment of the Indebtedness. Any recovery realized from any other guarantor under any other instrument shall be first credited upon that portion of the Indebtedness which exceeds the maximum liability of Guarantor, if any, hereunder.
10.
The amount of Guarantor's liability and all rights, powers and remedies of Lender hereunder shall be cumulative and not alternative and such rights, powers and remedies shall be in addition to all rights, powers and remedies given to Lender by law or under the Loan Documents. This Guaranty Agreement is in addition to and separate and apart from the guaranty of any other guarantor of the Indebtedness or of any other indebtedness or obligation.
11.
The liability of Guarantor under this Guaranty Agreement shall be an absolute, direct, immediate and unconditional guarantee of payment and not of collectibility. The obligations of Guarantor hereunder are independent of the obligations of Borrower and, in the event of any default hereunder, a separate action or actions may be brought and prosecuted
4
against Guarantor whether or not Borrower is joined therein or a separate action or actions are brought against Borrower. Lender may maintain successive actions for other defaults continuing beyond any applicable cure period. Lender's rights hereunder shall not be exhausted by its exercise of any of its rights or remedies or by any such action or by any number of successive actions. If Guarantor consists of two or more persons or entities, the obligations of each person or entity hereunder are joint and several obligations and Lender may maintain a separate action or actions against each, prosecute an action or actions against either or any of them without prosecuting an action or actions against the other or may prosecute an action or actions jointly against all persons and entities. The death or dissolution of any Guarantor shall not terminate this Guaranty Agreement as to any surviving Guarantor, and shall not terminate this Guaranty Agreement as to the estate of any deceased Guarantor.
12.
In the event of the dissolution, liquidation or insolvency (howsoever evidenced) of, or the institution of bankruptcy or receivership proceedings against or by the Borrower, or its beneficiary(ies), if any, or the inability of the Borrower or the beneficiary(ies) to pay debts as they mature, the Guarantor shall pay to Lender upon demand, the full amount which would be payable hereunder by the Guarantor as if all Indebtedness were then due and payable without regard as to whether or not any such events shall occur at a time when any of the Indebtedness may not then be due and payable. That upon the commencement of a voluntary or involuntary bankruptcy proceeding by or against Borrower, Guarantor will not seek or cause Borrower or any other person or entity to seek a supplemental stay or other relief, whether injunctive or otherwise, pursuant to 11 U.S.C. 105 or any other provision of the Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law, (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, to stay, interdict, condition, reduce or inhibit the ability of Lender to enforce any rights of Lender against Indemnitor or the collateral for the Loan by virtue of this Agreement or otherwise.
13.
Notwithstanding the fact that Borrower may be a trust, a corporation, a limited liability company, a joint venture or a partnership, Lender does not have to confirm or inquire into the powers of Borrower, its beneficiary(ies), its directors, officers, members, joint venturers, partners, associates or other agents acting or purporting to act on its behalf, Guarantor hereby representing that such powers exist, and monies in fact borrowed from Lender in connection with the Loan in the professed exercise of such powers shall be deemed to form a part of the liabilities guaranteed, even though the borrowing or obtaining of such monies is in excess of the powers of Borrower or of the beneficiary(ies), directors, officers, joint venturers, partners, associates or other agents thereof, or shall be in any way irregular or defective or informal.
14.
It is expressly understood that the obligations of Guarantor hereunder are an additional and cumulative benefit given to Lender for Lender's security and as an inducement for Lender to make the Loan and in order to induce any person or persons who may be and become the holder of the Note to accept the same.
15.
All payments hereunder shall be made in lawful money of the United States of America. No delay in making demand on Guarantor for satisfaction of its liabilities hereunder shall prejudice Lender's rights to enforce such liabilities.
5
16.
Guarantor hereby warrants and represents unto Lender that any and all balance sheets, net worth statements and other financial data which have heretofore been given or may hereafter be given to Lender with respect to Guarantor did or will at the time of such delivery present the financial condition of Guarantor in all material respects.
17.
Guarantor shall pay to Lender, without demand, reasonable attorneys' fees and disbursements and all costs and other expenses which Lender expends or incurs in collecting or compromising the Indebtedness or in enforcing this Guaranty Agreement against Guarantor whether or not suit is filed, including, without limitation, all costs, attorneys' fees and expenses incurred by Lender in connection with any insolvency, bankruptcy, reorganization, arrangement or other similar proceedings involving Borrower or Guarantor which in any way affect the exercise by Lender of its rights and remedies hereunder. Until paid to Lender, such attorneys' fees, costs and expenses shall bear interest at the default rate of interest described in the Note.
18.
Any provision of this Guaranty Agreement which is unenforceable, invalid or contrary to law, or the inclusion of which would affect the validity, legality or enforcement of this Guaranty Agreement shall be of no effect, and in such case, all the remaining terms and provisions of this Guaranty Agreement shall subsist and shall be fully effective according to the terms of this Guaranty Agreement, the same as though any such provision had not been included herein.
19.
No provision of this Guaranty Agreement or right of Lender hereunder can be waived nor can Guarantor be released from Guarantor's obligations hereunder except by a writing duly executed by Lender. This Guaranty Agreement may not be modified, amended, revised, revoked, terminated, changed or varied in any way whatsoever except by the express terms of a writing duly executed by Lender and Guarantor.
20.
When the context and construction so require, all words used in the singular herein shall be deemed to have been used in the plural, and the masculine shall include the feminine and neuter and vice versa. The word "person" as used herein shall include any individual, company, firm, association, partnership, corporation, trust or other legal entity of any kind whatsoever.
21.
This Guaranty Agreement is a general guaranty agreement and is assignable with any and/or all of the Indebtedness which it guarantees and when so assigned, Guarantor shall be bound as above to the assignee(s) without in any manner affecting Guarantor's liability hereunder. The delivery of the Note for value to any person shall, without more, constitute conclusive evidence of the acceptance hereof, and of the reliance hereon by each and every holder, from time to time, of the Note or any interest in the Indebtedness.
22.
The validity of this Guaranty Agreement and the obligations of Guarantor hereunder shall in no way be terminated, affected, impaired or reduced by reason of the conveyance, transfer, sale, assignment, exchange or lease of the Property, or any part thereof or any interest therein including the beneficial interest in any land trust, to any other person or by reason of the further encumbrancing of the Property or any part thereof (it being strictly understood, however, that the provisions of this paragraph are not deemed to be a waiver of any
6
restrictions of such acts contained in the Loan Documents, or to constitute consent to any such acts).
23.
This Guaranty Agreement, and each and every part hereof, shall be binding upon the Guarantor, and each of them, jointly and severally, and upon the heirs, administrators, legal representatives, successors and assigns of each of the Guarantor, and shall inure to the pro rata benefit of each and every future holder of the Note or any interest in the Indebtedness.
24.
This Guaranty Agreement shall be construed for all purposes and enforced in accordance with the laws of the State of Florida. Without limiting the right of the Lender to bring any action or proceeding against the undersigned or against property of the undersigned arising out of or relating to this Guaranty Agreement (an " Action ") in the courts of other jurisdictions, the undersigned hereby irrevocably submit to the jurisdiction of any Florida state court sitting in Orange County, Florida or federal court sitting in the Middle District of Florida; and the undersigned hereby irrevocably agree that any Action may be heard and determined in any such state court or in either such federal court. The undersigned hereby irrevocably waive any rights the undersigned may have to assert that such state courts or federal courts provide either an improper or inconvenient venue. The undersigned hereby irrevocably waive, to the fullest extent possible, the defense or assertion of any inconvenient forum to the maintenance of any Action in any jurisdiction. The undersigned hereby irrevocably agrees that the summons and complaint or any process in any Action in any jurisdiction may be served on the undersigned by mailing to the address of the undersigned set forth herein or by hand delivery to a person of suitable age and discretion at the undersigned's address set forth herein. Such service will be complete on the date such process is so mailed or delivered, and the undersigned will have thirty days from such completion of service in which to respond in the manner provided by law. The undersigned may also be served in any other manner permitted by law, in which event the undersigned's time to respond shall be the time provided by law. Each of the undersigned and Lender hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Guaranty Agreement.
25.
Any notice request or demand to be given hereunder shall be in writing, and shall be deemed to have been given when personally delivered, deposited for delivery with an overnight courier service such as Federal Express, or placed in the United States mail, with proper registered or certified postage prepaid, return receipt requested, addressed to the party concerned at the address shown below and shall be effective the date of mailing:
7
To Lender: IA Orlando Sand, L.L.C.
2901 Butterfield Road
with a copy to:
The Inland Real Estate Group, Inc.
|
To each Guarantor: Stanley E. Thomas 45 Ansley Drive Newnan, Georgia 30263
Thomas Enterprises, Inc. 45 Ansley Drive Newnan, Georgia 30263
|
provided, however, that each of the foregoing addresses for notice may be changed from time to time by notice given to the other party, in the manner herein provided for.
26.
This Guaranty Agreement shall constitute the entire agreement of Guarantor with Lender with respect to the subject matter hereof and no representation, understanding, promise or condition concerning the subject matter hereof shall be binding upon Lender unless expressed herein. This Guaranty Agreement may be executed in counterparts.
27.
Any non-recourse provisions contained in the Loan Documents are in no event to be construed as inconsistent with or contrary to the terms and provisions of this Guaranty Agreement and in the event of any inconsistency between said non-recourse provisions and the provisions of this Guaranty Agreement, the provisions of this Guaranty Agreement shall control.
28.
Notwithstanding any payments made by or for the account of the Guarantor pursuant to this Guaranty Agreement, Guarantor shall not be subrogated to any rights of Lender. Guarantor hereby waives all rights of subrogation, indemnity, contribution, exoneration, reimbursement or other claim which Guarantor now or may hereafter have or claim against Borrower or any other person liable in any way with respect to the Indebtedness.
29.
Subject to all of the other terms and provisions of this Guaranty Agreement, in the event of default by Borrower under the Loan Documents and the institution of foreclosure proceedings and/or security enforcement proceedings by Lender pursuant to the Loan Documents as a result of that default, Guarantor shall continue to be liable to Lender for the payment to Lender of the amount, if any, by which the Indebtedness at the time of the foreclosure or security enforcement sale by Lender shall exceed the actual net cash received by Lender from any party in connection with such foreclosure or security enforcement sale. The preceding sentence shall not in any event be construed to require Lender to refund to Guarantor any amounts which were paid by Guarantor pursuant to this Guaranty Agreement prior to the acceleration of the Indebtedness and which were properly due and payable by Guarantor at the time said payments were made.
8
30.
Pursuant to the terms of the Mortgage, Borrower must provide certain insurance coverages for the Property and other items in connection with the Loan. If the Borrower fails to do so, Lender may, at its option, obtain such insurance at the expense of the Borrower. The insurance purchased by Lender may, but need not, protect Borrower's interests. The coverage that Lender purchases may not pay any claim that Borrower makes or any claim that is made against Borrower in connection with the Premises. Borrower may later cancel any insurance purchased by Lender, but only after providing Lender with evidence that Borrower has obtained insurance as required by the Mortgage. If Lender purchases insurance for the Premises, Borrower will be responsible for the costs of that insurance, including interest as provided in the Mortgage and any other charges Lender may impose in connection with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance. The cost of the insurance shall be additional indebtedness evidenced by the Note and secured by the Loan Documents. The cost of the insurance may be more than the cost of such insurance Borrower may be able to obtain on its own.
9
IN WITNESS WHEREOF, each of the individuals comprising Guarantor has executed this Agreement as of the day and year first above written in the presence of the Notary Public who has acknowledged their signatures as more fully set forth below.
/s/ Stanley E. Thomas
STANLEY E. THOMAS
THOMAS ENTERPRISES, INC.
By: /s/ Stanley E. Thomas
By:____________________
Name: Stanley E. Thomas _
Title: Manager__________
10
STATE OF _ Georgia |
) |
|
):SS |
COUNTY OF Coweta |
) |
|
|
I, Crystal Clark , a Notary Public in and for the County and State aforesaid, do hereby certify that Stan Thomas, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act.
Given under my hand notarial seal this 28 day of September, 2006.
My commission expires:
3/22/2010 |
/s/ Crystal Clark Notary Public |
11
STATE OF Georgia |
) |
|
):SS |
COUNTY OF Coweta |
) |
|
|
I, Crystal Clark _, a Notary Public in and for the County and State aforesaid, do hereby certify that Stanley Thomas _, personally known to me to be the __________ of ______________, the ______ of Thomas Enterprises, Inc., same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act.
Given under my hand notarial seal this 28 day of September, 2006.
My commission expires:
3/22/2010 |
/s/ Crystal Clark Notary Public |
12
EXHIBIT A
From a 4x4 concrete monument with a 2 inch brass disc stamped RLS 1585 RLS 1819 at the Northwest corner of the Northwest 1/4 of Section 31, Township 23 South, Range 29 East, Orange County, Florida, run South 00 degrees 50 minutes 25 seconds East 160.01 feet along the West boundary of said Northwest 1/4 to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186 on the South right-of-way line of Sand Lake Road (State Road 482) as described and recorded in Official Records Book 235, Page 620, Public Records Of Orange County, Florida; thence run North 89 degrees 49 minutes 21 seconds East 1040.57 feet along said South right-of-way line to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP for the POINT OF BEGINNING; thence continue North 89 degrees 49 minutes 21 seconds East 1049.97 feet along said South right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 00 degrees 50 minutes 25 seconds West 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 49 minutes 21 seconds East 563.13 feet along the South right-of-way line of Sand Lake Road (State Road 482) as described and recorded in Official Records Book 223, Page 321, Public Records Of Orange County, Florida to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 00 degrees 11 minutes 03 seconds West 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 32 minutes 07 seconds East 400.01 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run South 00 degrees 11 minutes 03 seconds East 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 32 minutes 07 seconds East 2066.31 feet along said right-of-way line to a point on a line parallel with and 200.00 feet West of, when measured at right angles to, the East boundary of the Northeast 1/4 of the aforesaid Section 31, said point being a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run South 00 degrees 14 minutes 20 seconds East 987.07 feet along said parallel line to a 4x4 concrete monument with disc stamped JWG LB 1 at the Northeast corner of that certain parcel of land described and recorded in Official Records Book 6983, Pages 2167 through 2172 of the Public Records of Orange County, Florida; thence along the Northerly boundary of said parcel of land with the following courses and distances, run North 89 degrees 54 minutes 59 minutes West 1144.66 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the beginning of a non-tangent curve, concave Northwesterly and having a radius of 1196.00 feet; thence from a tangent bearing of South 15 degrees 58 minutes 41 seconds West run Southwesterly 887.53 feet along the arc of said curve through a central angle of 42 degrees 31 minutes 05 seconds to a 4x4 concrete monument with disc stamped JWG LB 1 at the end of said curve; thence run South 58 degrees 29 minutes 46 seconds West 136.16 feet along a line 50.00 feet Southeast of and parallel with, when measured at right angles to the Southeasterly boundary of that certain Orange County Sewer Line Easement described and recorded in Official Records Book 3400, Page 1743 and Official Records Book 3406, Page 1334 and Official Records Book 3403, Page 495, Public Records of Orange County, Florida to a 4x4 concrete monument with disc stamped JWG LB 1; thence run North 89 degrees 54 minutes 59 seconds West 660.26 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP; thence leaving the aforesaid Northerly boundary, run North 00 degrees 11 minutes 03 seconds West 852.08 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the beginning of a non-tangent curve concave Southerly and having a radius of 700.00 feet; thence from a tangent bearing of North 66 degrees 28 minutes 35 seconds West run Westerly 347.68 feet along the arc of said curve through a central angle of 28 degrees 27 minutes 28 seconds to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the end of said curve; thence run North 86 degrees 47 minutes 22 seconds West 220.59 feet; thence run South 82 degrees 51 minutes 29 seconds West 811.25 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the beginning of a non-tangent curve, concave Southwesterly and having a radius of 2100.00 feet; thence from a tangent bearing of North 04 degrees 01 minutes 10 seconds West run Northwesterly 939.70 feet along the arc of said curve through a central angle of 25 degrees 38 minutes 19 seconds to the Point of Beginning.
A-1
LESS AND EXCEPT:
From the Northeast corner of Section 31, Township 23 South, Range 29 East run South 00 degrees 14 minutes 20 seconds East 150.00 feet along the East boundary of the Northeast 1/4 of said Section 31 to a point on the south right-of-way line of State Road 482 (Sand Lake Road) as described in Official Records Book 223, Page 321 of the Public Records of Orange County, Florida; thence run South 89 degrees 32 minutes o7 seconds West 200.00; thence run South 00 degrees 14 minutes 20 seconds East 987.07 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the Northeast corner of that certain parcel of land described and recorded in Official Records Book 6983, Pages 2167 through 2172 of the Public Records of Orange County, Florida; thence along the Northerly boundary of said parcel of land with the following courses and distances, run North 89 degrees 54 minutes 59 minutes West 1144.66 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the beginning of a non-tangent curve, concave Northwesterly and having a radius of 1196.00 feet; thence from a tangent bearing of South 15 degrees 58 minutes 41 seconds West run Southwesterly 887.53 feet along the arc of said curve through a central angel of 42 degrees 31 minutes 05 seconds to a 4x4 concrete monument with disc stamped JWG LB 1 at the end of said curve; thence run South 58 degrees 29 minutes 46 seconds West 136.16 feet along a line 50.00 feet Southeast of and parallel with, when measured at right angles to the Southeasterly boundary of that certain Orange County Sewer Line Easement described and recorded in Official Records Book 3400, Page 1743 and Official Records Book 3406, Page 1334 and Official Records Book 3403, Page 495, Public Records of Orange County, Florida to a 4x4 concrete monument with disc stamped JWG LB 1; thence run North 89 degrees 54 minutes 59 seconds West 169.47 feet to the POINT OF BEGINNING; thence run North 89 degrees 54 minutes 59 seconds West 490.79 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP; thence leaving the aforesaid Northerly boundary, run North 00 degrees 11 minutes 03 seconds West 722.82 feet; thence run South 72 degrees 24 minutes 46 seconds East 213.71 feet to the beginning of a non-tangent curve concave Southwesterly and having a radius of 679.60 feet; thence from a tangent bearing of South 72 degrees 48 minutes 40 seconds East run Southeasterly 288.19 feet along the arc of said curve through a central angle of 24 degrees 17 minutes 49 seconds to the end of said curve and the beginning of a non-tangent curve concave Southwesterly and having a radius of 508.17 feet; thence from a tangent bearing of South 45 degrees 29 minutes 25 seconds East run Southeasterly 250.01 feet along the arc of said curve through a central angle of 28 degrees 11 minutes 19 seconds to the end of said curve and the beginning of a non-tangent curve concave Northwesterly and having a radius of 285.52 feet; thence from a tangent bearing of South 17 degrees 58 minutes 40 seconds East run Southwesterly 339.86 feet along the arc of said curve through a central angle of 68 degrees 11 minutes 58 seconds to the end of said curve and the Point of Beginning.
CONTAINING: 7.860 acres, more or less.
A-2
EXHIBIT 10.134
COLLATERAL ASSIGNMENT OF
AGREEMENTS AFFECTING REAL ESTATE
THIS COLLATERAL ASSIGNMENT, made as of the 29 th day of September 2006, by Fourth Quarter Properties 124, LLC, a Georgia limited liability company (hereinafter called " Assignor "), having an address of 45 Ansley Drive, Newnan, Georgia 30263 to IA Orlando Sand, L.L.C., a Delaware limited liability company (hereinafter called " Assignee "), having an address of 2901 Butterfield Road, Oak Brook, IL 60523.
BACKGROUND OF ASSIGNMENT
A.
Assignor is about to become the legal owner of a fee simple interest in certain real property located in Orange County, Florida, and described as set forth in Exhibit "A" attached hereto (the " Property ").
B.
This Collateral Assignment is made as additional security for the payment of a certain Promissory Note of even date herewith made by Assignor to Assignee, in the original principal sum of Forty One Million Four Hundred Seventy Seven Thousand Sixty Two and 84/100 Dollars ($41,477,062.84) (the " Note ") and the performance by Assignor of its obligations under a certain Mortgage and Security Agreement (the " Mortgage ") of even date herewith from Assignor to Assignee, given to secure payment of the Note and encumbering the Property, and various other loan and security documents sometimes collectively called the " Loan Documents ".
TERMS OF ASSIGNMENT
NOW, THEREFORE, in consideration of the Loan, and intending to be legally bound, Assignor does hereby covenant, agree, warrant, represent, assign, set over and transfer as set forth herein.
1.
The items which shall be the subject of this Collateral Assignment, and which are sometimes collectively referred to as " Additional Collateral " are as follows:
(a)
All licenses, permits, approvals, certificates and agreements with or from all boards, agencies, departments, governmental or otherwise, relating directly or indirectly to the ownership, use, operation and maintenance of the Property, or the construction of improvements on the Property, whether heretofore or hereafter issued or executed (collectively, the " Licenses "), such boards, agencies, departments, governmental or otherwise being hereinafter collectively referred to as " Governmental Authorities ".
(b)
All contracts, subcontracts, agreements, service agreements, warranties and purchase orders which have been or will be executed by or on behalf of Assignor, or which have been assigned to Assignor, in connection with the use, operation and maintenance of the Property, or the construction of improvements on the Property (collectively, the " Contracts "), and the parties with whom or to whom such Contracts have been or are given are hereinafter collectively referred to as the " Contractors ".
2.
Assignor hereby assigns, transfers and sets over unto Assignee all of its right, title and interest in and to the Additional Collateral and all the rights and benefits therefrom as security for the full, timely and faithful repayment by the Assignor of the Loan and performance by Assignor of all of its obligations under the Loan Documents.
3.
Until the occurrence of a default and/or an event of default under the Loan Documents, Assignor may retain, use and enjoy the benefits of the Additional Collateral. After the occurrence of a default and/or an event of default, as aforesaid, Assignee may enforce this Collateral Assignment. Any of the Governmental Authorities, Contractors or any other person requiring contact with the holder of the Additional Collateral may rely on the affidavit of an officer, agent or attorney of Assignee stating that there has been a default and/or an event of default for the purposes of allowing Assignee its rights in the Additional Collateral pursuant to this paragraph.
4.
Assignor agrees faithfully to observe and perform all of the obligations and agreements imposed upon Assignor under the Licenses and Contracts. From the date hereof, no Contract or License may be altered, amended, or canceled, and no new Contract may be entered into except in accordance with the Loan Documents.
5.
Assignee will not be deemed in any manner to have assumed any of the Additional Collateral, nor shall Assignee be liable to Governmental Authorities or Contractors by reason of any default by any party under the Licenses or Contracts. Assignor agrees to indemnify and to hold Assignee harmless of and from any and all liability, loss or damage which it may or might incur by reason of any claims or demands against it based on its alleged assumption of Assignor's duty and obligation to perform and discharge the terms, covenants and agreements in the Licenses and Contracts.
6.
a)
After the occurrence of a default and/or an event of default under the Loan Documents, Assignee may elect to exercise any and all of Assignor's rights and remedies under the Additional Collateral, without any interference or objection from Assignor, and Assignor shall cooperate in causing the Contractors to comply with all the terms and conditions of the Contracts.
(b)
If and to the extent permitted by law and the terms of the Additional Collateral, Assignee may, with or without entry upon the Property, at its option, take over and enjoy the benefits of the Additional Collateral, exercise Assignor's rights under the Additional Collateral, and perform all acts in the same manner and to the same extent as Assignor might do. In connection with any and all of the foregoing powers, and without limiting the same, Assignee may effect new Contracts and Licenses, cancel or surrender existing Contracts or Licenses, alter and amend the terms of and renew existing Contracts and Licenses, and make concessions to Governmental Authorities and Contractors. Assignor hereby releases any and all claims which it has or might have against Assignee arising out of such performance by Assignee except with respect to its willful misconduct.
7.
All of the foregoing powers herein granted Assignee shall be liberally construed. Assignee need not expend its own funds in the exercise of such power, but if it does, such amounts shall be considered as advances for and on behalf of Assignor secured by this Collateral
2
Assignment and also evidenced and secured by the Loan Documents. Any amounts so advanced shall bear interest at the then current rate prescribed in the Note.
8.
Assignor shall furnish to Assignee, upon Assignee's written request, a complete list of all Contracts and Licenses. Further, if requested, Assignor shall deliver to Assignee executed or certified copies of all Contracts and Licenses, and other written agreements, correspondence and memoranda between Assignor and Contractors and Governmental Authorities, setting forth the contractual and other arrangements between them. To the extent that Assignor does not have executed or certified copies of the foregoing in its possession, Assignor shall deliver copies of those of the foregoing which are in its possession with a certification that to Assignor's knowledge and belief, they are true and correct copies.
9.
Nothing herein contained shall be construed as making Assignee a mortgagee in possession, or as constituting a waiver or suspension by Assignee of its rights to enforce payment of the debts under the terms of the Loan Documents. Assignee is not the agent, partner, or joint venturer of Assignor or of any of the Contractors or Governmental Authorities.
10.
This Collateral Assignment may be enforced from time to time by Assignee at its discretion, with or without order of any court and with or without appointment of a receiver, as Assignee shall determine. Assignee may also cease at any time to enforce this Collateral Assignment. Any failure on the part of Assignee promptly to exercise any option hereby given or reserved shall not prevent the exercise of any such option at any time thereafter. Assignee may pursue and enforce any remedy or remedies accorded it herein independently of, in conjunction or concurrently with, or subsequent to its pursuit of enforcement of any remedy or remedies which it may have under the Loan Documents.
11.
Assignor warrants and represents:
(a)
That it has the right to execute and deliver this Collateral Assignment; and
(b)
That it has made no prior assignments of the Additional Collateral.
12.
When the context so requires, the singular shall include the plural and conversely, and use of any gender shall include all genders.
13.
It is understood and agreed that a full and complete satisfaction of the Mortgage shall operate as a full and complete satisfaction of all of the Assignee's rights and interests hereunder and that after the Mortgage has been fully satisfied, this instrument shall be void and of no further effect.
14.
Nothing contained herein shall be construed to modify or expand the authority of the Assignee to deal with or to further restrict the Assignor's ability to deal with the Additional Collateral or with Contractors and Governmental Authorities.
15.
Notwithstanding any provision herein to the contrary, this Collateral Assignment is intended to be an absolute assignment from Assignor to Assignee, and not merely the granting of a security interest. The Additional Collateral is hereby assigned absolutely by Assignor to Assignee; nevertheless, Assignor shall have the right to utilize the Additional Collateral until the occurrence of a default or an event of default under one or more of the Loan Documents.
3
16.
This Collateral Assignment applies to and binds the parties hereto and their respective heirs, administrators, executors, successors and assigns, as well as any subsequent owner of the Property and any assignee of the Mortgage referred to herein.
IN WITNESS WHEREOF, Assignor has duly executed this Collateral Assignment the day and year first above written.
|
Fourth Quarter Properties 124, LLC, a Georgia limited liability company
By: /s/ Stanley E. Thomas Name: Stanley E. Thomas Title: Manager |
STATE OF GA -
)
): SS
COUNTY OF Coweta
)
I, the undersigned, a Notary Public in and for the County and State aforesaid, do hereby certify that Stanley E. Thomas, as Manager of __________________________ the managing member of Fourth Quarter Properties 124, LLC, a Georgia limited liability company, personally known to me to be the same person whose name is subscribed to the foregoing instrument as such _____________ appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act, and as the free and voluntary act of said corporation and limited partnership, for the uses and purposes therein set forth.
Given under my hand notarial seal this 28th day of September, 2006.
Notary: /s/ Crystal Clark
[NOTARY SEAL]
Print Name: Crystal Clark
Notary Public, State of Georgia
My commission expires: 3/22/2010
4
EXHIBIT "A"
From a 4x4 concrete monument with a 2 inch brass disc stamped RLS 1585 RLS 1819 at the Northwest corner of the Northwest 1/4 of Section 31, Township 23 South, Range 29 East, Orange County, Florida, run South 00 degrees 50 minutes 25 seconds East 160.01 feet along the West boundary of said Northwest 1/4 to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186 on the South right-of-way line of Sand Lake Road (State Road 482) as described and recorded in Official Records Book 235, Page 620, Public Records Of Orange County, Florida; thence run North 89 degrees 49 minutes 21 seconds East 1040.57 feet along said South right-of-way line to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP for the POINT OF BEGINNING; thence continue North 89 degrees 49 minutes 21 seconds East 1049.97 feet along said South right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 00 degrees 50 minutes 25 seconds West 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 49 minutes 21 seconds East 563.13 feet along the South right-of-way line of Sand Lake Road (State Road 482) as described and recorded in Official Records Book 223, Page 321, Public Records Of Orange County, Florida to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 00 degrees 11 minutes 03 seconds West 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 32 minutes 07 seconds East 400.01 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run South 00 degrees 11 minutes 03 seconds East 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 32 minutes 07 seconds East 2066.31 feet along said right-of-way line to a point on a line parallel with and 200.00 feet West of, when measured at right angles to, the East boundary of the Northeast 1/4 of the aforesaid Section 31, said point being a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run South 00 degrees 14 minutes 20 seconds East 987.07 feet along said parallel line to a 4x4 concrete monument with disc stamped JWG LB 1 at the Northeast corner of that certain parcel of land described and recorded in Official Records Book 6983, Pages 2167 through 2172 of the Public Records of Orange County, Florida; thence along the Northerly boundary of said parcel of land with the following courses and distances, run North 89 degrees 54 minutes 59 minutes West 1144.66 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the beginning of a non-tangent curve, concave Northwesterly and having a radius of 1196.00 feet; thence from a tangent bearing of South 15 degrees 58 minutes 41 seconds West run Southwesterly 887.53 feet along the arc of said curve through a central angle of 42 degrees 31 minutes 05 seconds to a 4x4 concrete monument with disc stamped JWG LB 1 at the end of said curve; thence run South 58 degrees 29 minutes 46 seconds West 136.16 feet along a line 50.00 feet Southeast of and parallel with, when measured at right angles to the Southeasterly boundary of that certain Orange County Sewer Line Easement described and recorded in Official Records Book 3400, Page 1743 and Official Records Book 3406, Page 1334 and Official Records Book 3403, Page 495, Public Records of Orange County, Florida to a 4x4 concrete monument with disc stamped JWG LB 1; thence run North 89 degrees 54 minutes 59 seconds West 660.26 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP; thence leaving the aforesaid Northerly boundary, run North 00 degrees 11 minutes 03 seconds West 852.08 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the beginning of a non-tangent curve concave Southerly and having a radius of 700.00 feet; thence from a tangent bearing of North 66 degrees 28 minutes 35 seconds West run Westerly 347.68 feet along the arc of said curve through a central angle of 28 degrees 27 minutes 28 seconds to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the end of said curve; thence run North 86 degrees 47 minutes 22 seconds West 220.59 feet; thence run South 82 degrees 51 minutes 29 seconds West 811.25 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the beginning of a non-tangent curve, concave Southwesterly and having a radius of 2100.00 feet; thence from a tangent bearing of North 04 degrees 01 minutes 10 seconds West run Northwesterly 939.70 feet along the arc of said curve through a central angle of 25 degrees 38 minutes 19 seconds to the Point of Beginning.
A-1
LESS AND EXCEPT:
From the Northeast corner of Section 31, Township 23 South, Range 29 East run South 00 degrees 14 minutes 20 seconds East 150.00 feet along the East boundary of the Northeast 1/4 of said Section 31 to a point on the south right-of-way line of State Road 482 (Sand Lake Road) as described in Official Records Book 223, Page 321 of the Public Records of Orange County, Florida; thence run South 89 degrees 32 minutes o7 seconds West 200.00; thence run South 00 degrees 14 minutes 20 seconds East 987.07 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the Northeast corner of that certain parcel of land described and recorded in Official Records Book 6983, Pages 2167 through 2172 of the Public Records of Orange County, Florida; thence along the Northerly boundary of said parcel of land with the following courses and distances, run North 89 degrees 54 minutes 59 minutes West 1144.66 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the beginning of a non-tangent curve, concave Northwesterly and having a radius of 1196.00 feet; thence from a tangent bearing of South 15 degrees 58 minutes 41 seconds West run Southwesterly 887.53 feet along the arc of said curve through a central angel of 42 degrees 31 minutes 05 seconds to a 4x4 concrete monument with disc stamped JWG LB 1 at the end of said curve; thence run South 58 degrees 29 minutes 46 seconds West 136.16 feet along a line 50.00 feet Southeast of and parallel with, when measured at right angles to the Southeasterly boundary of that certain Orange County Sewer Line Easement described and recorded in Official Records Book 3400, Page 1743 and Official Records Book 3406, Page 1334 and Official Records Book 3403, Page 495, Public Records of Orange County, Florida to a 4x4 concrete monument with disc stamped JWG LB 1; thence run North 89 degrees 54 minutes 59 seconds West 169.47 feet to the POINT OF BEGINNING; thence run North 89 degrees 54 minutes 59 seconds West 490.79 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP; thence leaving the aforesaid Northerly boundary, run North 00 degrees 11 minutes 03 seconds West 722.82 feet; thence run South 72 degrees 24 minutes 46 seconds East 213.71 feet to the beginning of a non-tangent curve concave Southwesterly and having a radius of 679.60 feet; thence from a tangent bearing of South 72 degrees 48 minutes 40 seconds East run Southeasterly 288.19 feet along the arc of said curve through a central angle of 24 degrees 17 minutes 49 seconds to the end of said curve and the beginning of a non-tangent curve concave Southwesterly and having a radius of 508.17 feet; thence from a tangent bearing of South 45 degrees 29 minutes 25 seconds East run Southeasterly 250.01 feet along the arc of said curve through a central angle of 28 degrees 11 minutes 19 seconds to the end of said curve and the beginning of a non-tangent curve concave Northwesterly and having a radius of 285.52 feet; thence from a tangent bearing of South 17 degrees 58 minutes 40 seconds East run Southwesterly 339.86 feet along the arc of said curve through a central angle of 68 degrees 11 minutes 58 seconds to the end of said curve and the Point of Beginning.
CONTAINING: 7.860 acres, more or less.
A-2
EXHIBIT 10.135
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (the " Agreement ") is dated as of September 29th , 2006 among Fourth Quarter Properties 124, LLC, a Georgia limited liability company (" Borrower "), and STANLEY E. THOMAS and THOMAS ENTERPRISES, INC. (collectively, the " Guarantor ") (Borrower and Guarantor are individually and collectively referred to as " Indemnitors ") for the benefit of IA Orlando Sand, L.L.C., a Delaware limited liability company (" Lender ").
RECITALS
A.
Borrower is, or is about to become, the present legal owner of the real property legally described on Exhibit "A" attached hereto (the " Property ");
B.
Borrower has executed and delivered to Lender a certain Promissory Note (the " Note ") dated of even date herewith in the principal sum of $41,477,062.84, secured by a First Mortgage and Security Agreement (" Mortgage ") on the Property;
C.
Guarantor has executed a Loan Guaranty Agreement guaranteeing payment of the Note;
D.
The assumption by each Indemnitor of the obligations under this Agreement will result in a financial benefit to the Borrower and in a financial benefit to the Guarantor, thereby enhancing each Indemnitor's financial interest in the Property; and
E.
As a condition precedent to the execution of the Lender's funding of the Loan evidenced by the Note, Lender requires the execution of this Agreement.
NOW, THEREFORE, in order to induce Lender to fund the Loan evidenced by the Note, and in consideration of the matters described in the foregoing Recitals, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
Recitals
. The Recitals are incorporated herein by this reference.
2.
Definitions
. For purposes of this Agreement, " Hazardous Materials " means and includes those substances, including without limitation, asbestos or any substance containing asbestos and deemed hazardous under any Hazardous Material Law (defined below), petroleum or petroleum derived products, the group of organic compounds known as polychlorinated biphenyls, flammable explosives, radioactive materials, chemicals known to cause cancer or reproductive toxicity, pollutants, effluents, contaminants, emissions or related materials and any items included in the definition of hazardous or toxic waste, materials or substances under any Hazardous Material Law. " Hazardous Material Laws " collectively means and includes any present and future local, state and federal law relating to
the environment and environmental conditions, including without limitation, the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. 6901 et seq., the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. 9601-9657, as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. 6901, et seq., the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., the Clean Air Act, 42 U.S.C. 7401 et seq., the Clean Water Act, 33 U.S.C. 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. 2601-2629, the Safe Drinking Water Act, 42 U.S.C. 300f-300j et seq., and all the regulations, order, decrees now or thereafter promulgated thereunder.
3.
Indemnities .
(a)
Indemnitors hereby jointly and severally agree to unconditionally indemnify, defend, and hold Lender harmless against any loss, liability, damage, expense or claim arising under any Hazardous Material Law, and any other loss, liability, damage, expense or claim which may be incurred by or asserted against Lender directly or indirectly resulting from the presence of Hazardous Material on the Property (" Indemnity or Indemnities ").
(b)
Indemnitors shall pay any such loss, liability, damage, expense or claim prior to the entry of any final judgments or penalties against Lender which have been indemnified under this Agreement. In the event that such payment is not made, Lender, at its sole discretion, may proceed to file suit against Indemnitors to compel such payment.
(c)
Promptly following completion of any actions imposed upon Indemnitors under any Hazardous Material Law, Indemnitors shall obtain and deliver to Lender, an environmental report in form and substance acceptable to Lender from an environmental consultant acceptable to Lender, stating that all required action has been taken, and that upon completion of such action, the Property is, to the knowledge of such professional, then in compliance with the applicable Hazardous Material Laws.
4.
Duration of Indemnity
. The duration of the Indemnities hereunder shall be indefinite; provided however, that Indemnitors shall not indemnify Lender for any losses, liabilities, damages, injuries, expenses or costs related to or involving Hazardous Materials placed or disposed of on the Property after Lender acquires title to the Property through foreclosure or deed-in-lieu of foreclosure; so long as (a) in the case of payment of the Note, Borrower delivers to Lender, after payment of the principal, interest and all other amounts due under the Note, an environmental report in form and substance acceptable to Lender from an environmental consultant acceptable to Lender showing no violation of Hazardous Material Laws or the presence of any Hazardous Materials on the Property or (b) in the case of a default under the Note and the foreclosure of the mortgage or a deed by the Borrower in lieu of foreclosure, no notice of any
- 2 -
violation of the Hazardous Material Laws or the presence of any Hazardous Materials on the Property has been received by the Borrower from Lender within five years after such foreclosure or transfer (the " Cut-off Date "); provided that, if prior to the Cut-off Date, Lender has notified Indemnitors of any claim or demand which Lender has determined is or could become the subject of indemnification of Lender under the Agreement, then, to the maximum extent permitted by law, the Indemnities under this Agreement shall survive the Cut-off Date only as to such claim or demand of which Indemnitors have been so notified. Notwithstanding the above, the further liability of Indemnitors under this Agreement shall be limited to those Indemnities occurring during or prior to the Borrower's ownership of the Property and shall not be construed to impose liability on the Indemnitors for damages occurring after the date of foreclosure or sale or such earlier date if the Lender becomes a mortgagee in possession.
5.
Notices from Borrower
. Indemnitors shall promptly after obtaining knowledge thereof advise Lender in writing of (a) any governmental or regulatory actions instituted or threatened in writing under any Hazardous Material Law affecting the Property or any Indemnitor hereunder including, without limitation, any notice of inspection, abatement or noncompliance, (b) all claims made or threatened in writing by any third party against Borrower, any Indemnitors or the Property relating to any Hazardous Material or a violation of a Hazardous Material Law, and (c) Indemnitors' real property adjoining or in the vicinity of the Property which could subject Borrower or the Property to a claim under any Hazardous Material Law, or to any restrictions on ownership, occupancy, transferability or use of the Property under any Hazardous Material Law. Indemnitors shall deliver to Lender any documentation or records as Lender may reasonably request and which are susceptible of being obtained by Indemnitors without undue cost or expense and without the necessity for initiating legal proceedings to obtain the same.
6.
Notice of Claims Against Lender
. Lender agrees that it shall provide Indemnitors with written notice of any claim or demand which Lender has determined could give rise to a right of indemnification under this Agreement. Such notice shall be given within a reasonable time after Lender becomes, aware of facts and shall specify, to the best of Lender's knowledge, the facts giving rise to the alleged claim, and the amount to the extent determinable, of liability for which indemnity is asserted. Each Indemnitor agrees that in any action, suit or proceeding brought against Lender, Lender may be represented by counsel of its choice without affecting or otherwise impairing the Indemnities and, to the extent fees and disbursements of Lender's counsel are incurred in protecting Lender's interest, to pay such fees and disbursements. Lender agrees that it will not settle or otherwise compromise any such actions, suit or proceeding without the prior written consent of Indemnitors which consent shall not be unreasonably withheld. If, without obtaining the prior written consent in writing of all Indemnitors, Lender compromises or otherwise settle claims against which Lender is indemnified pursuant to this Agreement, whether or not legal proceedings have been commenced, any such compromise or settlement without the consent of all
- 3 -
Indemnitors shall not be binding upon Indemnitors; provided, however such compromise or settlement shall not vitiate or invalidate this Agreement. The Indemnitors also agree that they will not settle or compromise such action, suit or proceeding without Lender's prior written consent which consent shall not be unreasonably withheld.
7.
Payment of Lender's Expenses
. If Lender retains counsel or consultants for advice or other representation in any litigation, contest, dispute, suit or proceeding (whether instituted by Lender, Indemnitors, or any other party, including any governmental agency charged with enforcement of any Hazardous Material Law) in any way relating to this Agreement and the Indemnities described herein, or to enforce the Indemnities hereunder, then all of the reasonable attorneys fees arising from such services and all related expenses and court costs shall be payable by Indemnitors within 30 days of demand.
8.
Obligations Absolute and Waivers .
(a)
The obligations of Indemnitors hereunder shall remain in full force without regard to, and shall not be impaired by the following, any of which may be taken in such manner, upon such terms and at such time as Lender, in its sole discretion, deems advisable without the consent of, or notice to, Indemnitors, nor shall any of the following give Indemnitors any recourse or right of action against Lender: (i) any express or implied amendment, modification, renewal, addition, supplement, extension or acceleration of or to the Note, the Mortgage, all of the loan documents executed by Borrower or any other party in connection with the Loan and all environmental indemnity agreements executed by Borrower or any other party, including without limitation this Agreement (collectively the " Documents "); (ii) any exercise or non-exercise by Lender of any right or privilege under any of the Documents, (iii) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to any Indemnitors or Borrower, or any affiliate of Borrower or any guarantor, or any action taken with respect to this Agreement by any trustee or receiver, or by any court, in any such proceeding, whether or not Indemnitors shall have had notice or knowledge of any of the foregoing; (iv) any release, waiver or discharge of the Borrower or any endorser or guarantor from liability under any of the Documents or an Indemnitor's grant to Lender of a security, interest, lien or encumbrance in any of the Indemnitor's property; (v) any subordination, compromise, settlement, release (by operation of law or otherwise), discharge, compound, collection, or liquidation of any of the Documents or any collateral described in any of the Documents or otherwise, or any substitution with respect thereto; (vi) any assignment or other transfer of any of the Documents, in whole or in part; (vii) any acceptance of partial performance of any of the obligations of Borrower under the Documents; (viii) any consent to the transfer of any collateral
- 4 -
described in the Documents or otherwise; and (ix) any bid or purchase at any sale of the collateral described in the Documents or otherwise.
(b)
Indemnitors unconditionally waive any defense to the enforcement of this Agreement including, without limitation; (i) all presentments, demands, demands for performance, notices of nonperformance, protests, notices of protest, dishonor, nonpayment, partial payment, default and protest, notices of acceptance of this Agreement and all other notices and formalities to which the Indemnitor may be entitled, except as set forth herein; (ii) any right to require Lender to proceed against Borrower or any guarantor or to proceed against or exhaust any collateral described in the Documents or to pursue any other remedy whatsoever; (iii) the defense of any statute of limitations affecting the liability of Indemnitors hereunder, the liability of Borrower or any guarantor under the Documents, or the enforcement hereof, to the extent permitted by law; (iv) any defense arising by reason of any invalidity or unenforceability of any of the Documents or any disability of Borrower or any guarantor or of the manner in which Lender has exercised its remedies under the Documents; (v) any defense based upon an election of remedies by Lender including, without limitation any election to proceed by judicial or non judicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including but not limited to remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of Indemnitors or the rights of Indemnitors to proceed against Borrower or any guarantor for reimbursement, or both; (vi) any duty of Lender to advise Indemnitors of any information known to Lender regarding the financial condition of Borrower and all of the circumstances affecting Borrower's ability to perform its obligations to Lender, it being agreed that Indemnitors assume the responsibility for being and keeping informed regarding such condition or any such circumstances; (vii) any right of subrogation and any rights to enforce any remedy which Lender now has or may hereafter have against Borrower and any benefit of, and any right to participate in any security now or hereafter held by Lender, until all obligations under the Documents have been fully paid and performed; and (viii) to the extent permitted by law, any right to assert against Lender any legal or equitable defense, counterclaim, set off or crossclaim which any of them may now or at any time or times hereafter have against each other.
9.
No Waiver
. Indemnitor's obligations hereunder shall in no way be impaired, reduced or released by reason of Lender's omission or delay to exercise any right described herein or in connection with any notice (except for notices required of Lender pursuant to this Agreement), demand, warning or claim regarding violations of any Hazardous Material Laws governing the Property.
- 5 -
10.
Recourse
.
(a)
Each Indemnitor's liability hereunder shall not be subject to, limited by or affected in any way by any "non-recourse" provisions contained in the Note, the Mortgage or any other documents executed and delivered in connection with the Loan, if any. Indemnitors agree that the Indemnities are separate, independent of and in addition to Borrower's undertakings under the Note. Indemnitors further agree that a separate action may be brought to enforce the provisions of this Agreement which shall in no way be deemed to be an action on the Note, whether or not Lender would be entitled to a deficiency judgment following a judicial foreclosure or trustee's sale under the Mortgage.
(b)
Each Indemnitor waives any right to require that any action be brought by Lender against Borrower or any other person or that any other remedy under the Note or Mortgage be exercised. Lender may, at its option, proceed against any Indemnitor in the first instance to collect monies when due or to obtain performance under this Agreement, without first proceeding against the Borrower or any other Indemnitor and without first resorting to the Note and Mortgage or any other remedy under the Note and Mortgage.
(c)
Each Indemnitor authorizes any attorney-at-law (including an attorney for Lender) to appear for it in any court of record, in the county in which this Indemnity is executed or where each Indemnitor has its principal place of business (or resides), and waive the issuing and service of process and confess judgment against each Indemnitor in favor of the Lender for the amount then appearing due hereunder, together with costs of suit, and thereupon to waive all errors and all rights or appeal and stay of execution. Each Indemnitor agrees the Lender's attorney may confess judgment pursuant to the foregoing warrant of attorney. Each Indemnitor further agrees that the attorney confessing judgment pursuant to the foregoing warrant of attorney may receive a legal fee or other compensation from each such Indemnitor. Borrower further waives any conflict of interest in having an attorney for the Lender confess judgment.
11.
Successor and Assigns
. Subject to the provisions of paragraph 4, above, this Agreement and the Indemnities contained in this Agreement shall be continuing, irrevocable and binding on each of the Indemnitors and their respective successors and assigns, and this Agreement shall be binding upon and shall inure to the benefit of Lender and Lender's successors and assigns. The death or dissolution of any one or more of the Indemnitors, shall not affect this Agreement of any of each Indemnitor's obligations hereunder. It is agreed by the Indemnitors that their respective liabilities hereunder are not contingent on the signature of any other Indemnitor.
- 6 -
12.
Notices
. Any notices to be given hereunder, shall be in writing and shall be deemed to have been given when personally delivered, deposited for delivery with an overnight courier service such as Federal Express, or placed in United States Mail with proper registered or certified postage, prepaid, return receipt requested, and addressed as follows:
In the case of Borrower and each Indemnitor, to:
In the case of Lender, to:
IA Orlando Sand, L.L.C.,
2901 Butterfield Road
Oak Brook, Illinois 60523
Attn: Roberta Matlin
With a copy to:
The Inland Real Estate Group, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Attn: Robert Baum, Esq., General Counsel
or such other address(es) or addressee(s) as the party to be served with notice may have furnished to the other party in accordance with this paragraph.
13.
Entire Agreement
. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matters contained in this Agreement.
14.
Amendment and Waiver
. This Agreement may not be amended except by a writing signed by both parties. Observance of any term of this Agreement may be waived only with the written consent of the Lender.
- 7 -
15.
Governing Law
. This Agreement shall be construed for all purposes and enforced in accordance with the laws of the State of Florida. Without limiting the right of the Lender to bring any action or proceeding against the undersigned or against property of the undersigned arising out of or relating to this Agreement (an " Action ") in the courts of other jurisdictions, the undersigned hereby irrevocably submit to the jurisdiction of any Florida state court sitting in Orange County, Florida, or federal court sitting in the Middle District of Florida; and the undersigned hereby irrevocably agree that any Action may be heard and determined in any such state court or in either such federal court. The undersigned hereby irrevocably waive any rights it may have to assert that such state courts or federal courts provide either an improper or inconvenient venue. The undersigned hereby irrevocably waive, to the fullest extent possible, the defense or assertion of any inconvenient forum to the maintenance of any Action in any jurisdiction. The undersigned hereby irrevocably agrees that the summons and complaint or any process in any Action in any jurisdiction may be served on the undersigned by mailing to the address of the undersigned set forth herein or by hand delivery to a person of suitable age and discretion at the undersigned's address set forth herein. Such service will be complete on the date such process is so mailed or delivered, and the undersigned will have thirty days from such completion of service in which to respond in the manner provided by law. The undersigned may also be served in any other manner permitted by law, in which event the undersigned's time to respond shall be the time provided by law. Each of the undersigned and Lender hereby irrevocably waives all rights to trial by jury in any Action proceeding or counterclaim arising out of or relating to this Agreement.
16.
Counterparts
. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same agreement.
17.
Severability
. All provisions contained in this Agreement are severable and the invalidity or unenforceability of any provision shall not affect or impair the validity or enforceability of the remaining provisions of this Agreement.
18.
Headings
. The descriptive headings of the paragraphs of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
19.
Binding Agreement
. This Agreement shall be binding upon the Indemnitors and each of them, jointly and severally, and upon the heirs, administrators, legal representatives, successors and assigns of each Indemnitor, and shall inure to the pro rata benefit of each and every future holder of the Note or any interest in the indebtedness evidenced to the Note.
- 8 -
IN WITNESS WHEREOF, this Agreement has been executed as of the date first above written by the undersigned before the notary publics appearing on the following page acknowledging their respective signatures, after having read and understanding the language contained herein.
|
Fourth Quarter Properties 124, LLC, a Georgia limited liability company
By: By: /s/ Stanley E. Thomas Name: Stanley E. Thomas Title: Manager |
|
|
/s/ Stanley E. Thomas
STANLEY E. THOMAS, individually
THOMAS ENTERPRISES, INC.
BY: /s/ Stanley E. Thomas
By:______________________________
Name: Stanley E. Thomas
Title: President
- 9 -
STATE OF GA
)
): SS
COUNTY OF Coweta
)
I, the undersigned, a Notary Public in and for the County and State aforesaid, do hereby certify that Stanley Thomas , as Manager of ____________, the managing member of Fourth Quarter Properties 124, LLC, a Georgia limited liability company, personally known to me to be the same person whose name is subscribed to the foregoing instrument as such _________ appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act, and as the free and voluntary act of said corporation and limited partnership, for the uses and purposes therein set forth.
Given under my hand notarial seal this 28 day of September, 2006.
My commission expires:
3/22/2010 |
/s/ Crystal Clark Notary Public |
STATE OF GA _ |
) |
|
):SS |
COUNTY OF Coweta |
) |
|
|
I, Crystal Clark , a Notary Public in and for the County and State aforesaid, do hereby certify that Stan Thomas, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act, for the uses and purposes therein set forth.
Given under my hand notarial seal this 28 day of September, 2006.
My commission expires:
3/22/2010 |
/s/ Crystal Clark Notary Public |
- 10 -
STATE OF GA_ |
) |
|
):SS |
COUNTY OF Coweta |
) |
|
|
I, Crystal Clark , a Notary Public in and for the County and State aforesaid, do hereby certify that Stanley Thomas , personally known to me to be the __________ of Thomas Enterprises, Inc. and the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act, for the uses and purposes therein set forth.
Given under my hand notarial seal this 28 _ day of September, 2006.
My commission expires:
3/22/2010 |
/s/ Crystal Clark Notary Public |
- 11 -
Exhibit A
From a 4x4 concrete monument with a 2 inch brass disc stamped RLS 1585 RLS 1819 at the Northwest corner of the Northwest 1/4 of Section 31, Township 23 South, Range 29 East, Orange County, Florida, run South 00 degrees 50 minutes 25 seconds East 160.01 feet along the West boundary of said Northwest 1/4 to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186 on the South right-of-way line of Sand Lake Road (State Road 482) as described and recorded in Official Records Book 235, Page 620, Public Records Of Orange County, Florida; thence run North 89 degrees 49 minutes 21 seconds East 1040.57 feet along said South right-of-way line to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP for the POINT OF BEGINNING; thence continue North 89 degrees 49 minutes 21 seconds East 1049.97 feet along said South right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 00 degrees 50 minutes 25 seconds West 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 49 minutes 21 seconds East 563.13 feet along the South right-of-way line of Sand Lake Road (State Road 482) as described and recorded in Official Records Book 223, Page 321, Public Records Of Orange County, Florida to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 00 degrees 11 minutes 03 seconds West 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 32 minutes 07 seconds East 400.01 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run South 00 degrees 11 minutes 03 seconds East 10.00 feet along said right-of-way line to a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run North 89 degrees 32 minutes 07 seconds East 2066.31 feet along said right-of-way line to a point on a line parallel with and 200.00 feet West of, when measured at right angles to, the East boundary of the Northeast 1/4 of the aforesaid Section 31, said point being a 4x4 concrete monument with disc stamped LS1585 LS1819 LS3186; thence run South 00 degrees 14 minutes 20 seconds East 987.07 feet along said parallel line to a 4x4 concrete monument with disc stamped JWG LB 1 at the Northeast corner of that certain parcel of land described and recorded in Official Records Book 6983, Pages 2167 through 2172 of the Public Records of Orange County, Florida; thence along the Northerly boundary of said parcel of land with the following courses and distances, run North 89 degrees 54 minutes 59 minutes West 1144.66 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the beginning of a non-tangent curve, concave Northwesterly and having a radius of 1196.00 feet; thence from a tangent bearing of South 15 degrees 58 minutes 41 seconds West run Southwesterly 887.53 feet along the arc of said curve through a central angle of 42 degrees 31 minutes 05 seconds to a 4x4 concrete monument with disc stamped JWG LB 1 at the end of said curve; thence run South 58 degrees 29 minutes 46 seconds West 136.16 feet along a line 50.00 feet Southeast of and parallel with, when measured at right angles to the Southeasterly boundary of that certain Orange County Sewer Line Easement described and recorded in Official Records Book 3400, Page 1743 and Official Records Book 3406, Page 1334 and Official Records Book 3403, Page 495, Public Records of Orange County, Florida to a 4x4 concrete monument with disc stamped JWG LB 1; thence run North 89 degrees 54 minutes 59 seconds West 660.26 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP; thence leaving the aforesaid Northerly boundary, run North 00 degrees 11 minutes 03 seconds West 852.08 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the beginning of a non-tangent curve concave Southerly and having a radius of 700.00 feet; thence from a tangent bearing of North 66 degrees 28 minutes 35 seconds West run Westerly 347.68 feet along the arc of said curve through a central angle of 28 degrees 27 minutes 28 seconds to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the end of said curve; thence run North 86 degrees 47 minutes 22 seconds West 220.59 feet; thence run South 82 degrees 51 minutes 29 seconds West 811.25 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP at the beginning of a non-tangent curve, concave Southwesterly and having a radius of 2100.00 feet; thence from a tangent bearing of North 04 degrees 01 minutes 10 seconds West run Northwesterly 939.70 feet along the arc of said curve through a central angle of 25 degrees 38 minutes 19 seconds to the Point of Beginning.
- 12 -
LESS AND EXCEPT:
From the Northeast corner of Section 31, Township 23 South, Range 29 East run South 00 degrees 14 minutes 20 seconds East 150.00 feet along the East boundary of the Northeast 1/4 of said Section 31 to a point on the south right-of-way line of State Road 482 (Sand Lake Road) as described in Official Records Book 223, Page 321 of the Public Records of Orange County, Florida; thence run South 89 degrees 32 minutes o7 seconds West 200.00; thence run South 00 degrees 14 minutes 20 seconds East 987.07 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the Northeast corner of that certain parcel of land described and recorded in Official Records Book 6983, Pages 2167 through 2172 of the Public Records of Orange County, Florida; thence along the Northerly boundary of said parcel of land with the following courses and distances, run North 89 degrees 54 minutes 59 minutes West 1144.66 feet to a 4x4 concrete monument with disc stamped JWG LB 1 at the beginning of a non-tangent curve, concave Northwesterly and having a radius of 1196.00 feet; thence from a tangent bearing of South 15 degrees 58 minutes 41 seconds West run Southwesterly 887.53 feet along the arc of said curve through a central angel of 42 degrees 31 minutes 05 seconds to a 4x4 concrete monument with disc stamped JWG LB 1 at the end of said curve; thence run South 58 degrees 29 minutes 46 seconds West 136.16 feet along a line 50.00 feet Southeast of and parallel with, when measured at right angles to the Southeasterly boundary of that certain Orange County Sewer Line Easement described and recorded in Official Records Book 3400, Page 1743 and Official Records Book 3406, Page 1334 and Official Records Book 3403, Page 495, Public Records of Orange County, Florida to a 4x4 concrete monument with disc stamped JWG LB 1; thence run North 89 degrees 54 minutes 59 seconds West 169.47 feet to the POINT OF BEGINNING; thence run North 89 degrees 54 minutes 59 seconds West 490.79 feet to a 4x4 concrete monument with disc stamped JWG LB1 PRM PCP; thence leaving the aforesaid Northerly boundary, run North 00 degrees 11 minutes 03 seconds West 722.82 feet; thence run South 72 degrees 24 minutes 46 seconds East 213.71 feet to the beginning of a non-tangent curve concave Southwesterly and having a radius of 679.60 feet; thence from a tangent bearing of South 72 degrees 48 minutes 40 seconds East run Southeasterly 288.19 feet along the arc of said curve through a central angle of 24 degrees 17 minutes 49 seconds to the end of said curve and the beginning of a non-tangent curve concave Southwesterly and having a radius of 508.17 feet; thence from a tangent bearing of South 45 degrees 29 minutes 25 seconds East run Southeasterly 250.01 feet along the arc of said curve through a central angle of 28 degrees 11 minutes 19 seconds to the end of said curve and the beginning of a non-tangent curve concave Northwesterly and having a radius of 285.52 feet; thence from a tangent bearing of South 17 degrees 58 minutes 40 seconds East run Southwesterly 339.86 feet along the arc of said curve through a central angle of 68 degrees 11 minutes 58 seconds to the end of said curve and the Point of Beginning.
CONTAINING: 7.860 acres, more or less.
- 13 -
EXHIBIT 10.137
Minto (Delaware), LLC
c/o Minto Communities, LLC
4400 West Sample Road
Coconut Creek, FL 33073-3450
October 27, 2006
Minto Builders (Florida), Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase and Subscription Agreement, dated as of October 11, 2005 (the Purchase Agreement), by and among Minto Builders (Florida), Inc., a Florida corporation (the Company), Minto (Delaware), LLC, a Delaware limited liability company (Minto Delaware), Minto Holdings Inc., a Canadian corporation incorporated under the laws of Ontario (Minto Holdings), and Inland American Real Estate Trust, Inc., a Maryland corporation (the Purchaser). Reference is further made to the Companys Second Amended and Restated Articles of Incorporation, as amended (the Articles). The Purchase Agreement, together with the Articles and the Related Agreements (as defined in the Purchase Agreement), hereinafter shall be referred to as the Transaction Documents. Finally, references are further made to that certain letter dated November 21, 2005, from Minto Delaware to the Company (the First Side Letter) and that certain letter dated March 22, 2006, from Minto Delaware to the Company (the Second Side Letter and, together with the First Side Letter, the Side Letters).
Section 3.2.8(a) of the Articles requires the Company to maintain the amount of outstanding Indebtedness (as defined in the Articles) plus the Series A Liquidation Amount (as defined in the Articles) as a percentage of total assets (as more particularly set forth in the Articles) equal to 55% or less. The Side Letters set forth waivers from the requirements of Section 3.2.8(a) of the Articles until March 31, 2006 (with respect to the First Side Letter) and December 31, 2006 (with respect to the Second Side Letter). Minto Delaware desires to provide a permanent waiver to Section 3.2.8(a) of the Articles under the terms set forth below.
Minto Delaware, pursuant to Section 3.2.14 of the Articles (as holder of the Requisite Percentage (as defined in the Articles) of the shares of Series A Cumulative Preferred Stock), hereby waives the Companys obligation to comply with the covenants contained in Section 3.2.8(a) of the Articles at all times after December 31, 2006, as long as (i) the Purchaser, Inland Western and the Company are in compliance with all material terms of the Transaction Documents other than Section 3.2.8(a) of the Articles (as amended pursuant to the separate letter agreement from Minto Delaware and Minto Holdings addressed to the Company and the Purchaser of even date herewith, and any subsequent letter agreements or other agreements
Minto Builders (Florida), Inc.
October 27, 2006
Page 2
pursuant to which Minto Delaware and Minto Holdings (and any successors thereto) grant the Purchaser and/or the Company an applicable waiver or amendment to the Purchase Agreement or any other Transaction Document) and (ii) the Company would be in compliance with Section 3.2.8(a) of the Articles if the Adjusted Total Assets (as such term is used in the Articles) are equal to the sum of: (A) the Adjusted Total Assets (as calculated under the Articles) plus (B) the Companys cash and cash equivalents (including marketable securities). For purposes of the prior sentence: (1) cash and cash equivalents shall mean all demand deposits, money market accounts and investments in certificates of deposit and repurchase agreements purchased with a maturity of three months or less, at the date of purchase, and (2) marketable securities shall mean financial instruments and foreign currencies (such as notes, stock, preferred shares, bonds, debentures, options, futures, swaps, rights, warrants and other similar financial assets) which are actively traded on an established securities market, a secondary market or the substantial equivalent thereof. Minto Delaware shall not transfer any shares of Series A Cumulative Preferred Stock unless it requires the transferee to be bound by the terms of this letter.
Please sign this letter below to indicate your agreement to its terms.
Very truly yours,
Minto (Delaware), LLC
By:
/s/ Roger Greenberg
_________
Name: Roger Greenberg
Title: Chairman
By:
/s/ Eric McKinney
___________
Name: Eric McKinney
Title: Vice President
Acknowledged and Agreed:
Minto Builders (Florida), Inc.
By:
/s/ Lori J. Foust
___________
Name: Lori J. Foust
Title: Treasurer
1021764_1
EXHIBIT 10.138
Minto (Delaware), LLC
|
Minto Holdings, Inc
|
October 27 2006
Minto Builders (Florida), Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Inland American Real Estate Trust, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase and Subscription Agreement, dated as of October 11, 2005 (the Purchase Agreement), by and among Minto Builders (Florida), Inc., a Florida corporation (the Company), Minto (Delaware), LLC, a Delaware limited liability company (Minto Delaware), Minto Holdings Inc., a Canadian corporation incorporated under the laws of Ontario (Minto Holdings), and Inland American Real Estate Trust, Inc., a Maryland corporation (the Purchaser). Pursuant to Section 2.4 of the Purchase Agreement, the Purchaser is required to invest a total of $1,173,920,000 in the Company by December 31, 2006, and the Company is required to redeem all outstanding shares of Series C Cumulative Preferred Stock by no later than December 31, 2006.
Minto Delaware and Minto Holdings hereby agree that the first reference in Section 2.4 to December 31, 2006 (as described above) shall be amended to be March 31, 2007, and the second reference in Section 2.4 to December 31, 2006 (described above) shall be amended to January 31, 2007. Thus, the Purchaser is not required to invest a total of $1,173,920,000 in the Company until March 31, 2007, and the Company is not required to redeem all outstanding shares of Series C Cumulative Preferred Stock until January 31, 2007. This letter agreement shall serve as an amendment to the Purchase Agreement. Except as set forth herein, the Purchase Agreement shall remain in full force and effect.
Minto Builders (Florida), Inc.
Inland American Real Estate Trust, Inc.
October 27, 2006
Page 2
Please sign this letter below to indicate your agreement to its terms.
Very truly yours,
Minto (Delaware), LLC
By:
/s/ Roger Greenberg
_________
Name: Roger Greenberg
Title: Chairman
By:
/s/ Eric McKinney
___________
Name: Eric McKinney
Title: Vice President
Minto Holdings, Inc.
By:
/s/ Roger Greenberg
_________
Name: Roger Greenberg
Title: Chairman
By:
/s/ Eric McKinney
___________
Name: Eric McKinney
Title: Executive Vice President
Acknowledged and Agreed:
Minto Builders (Florida), Inc.
By:
/s/ Lori J. Foust
___________
Name: Lori J. Foust
Title: Treasurer
Inland American Real Estate Trust, Inc.
By:
/s/ Lori J. Foust
___________
Name: Lori J. Foust
Title: Treasurer
1022238_1
EXHIBIT 10.139
ARTICLES OF ASSOCIATION
OF
Oak Real Estate Association
Inland Real Estate Corporation (Midwest REIT), Inland Retail Real Estate Trust, Inc. (Eastern REIT), Inland Western Retail Real Estate Trust, Inc. (Western REIT), and Inland American Real Estate Trust, Inc. (American REIT) (collectively the Founding Members) do hereby associate themselves as a voluntary unincorporated association to be known as Oak Real Estate Association (the Association) as of the 29th day of September, 2006, and agree as follows:
1.
Formation of Association .
The Founding Members hereby form the Association as a Vermont unincorporated association in accordance with the terms of these Articles of Association.
2.
Name .
The name of the Association is Oak Real Estate Association.
3.
Purposes of the Association .
The Association is organized and shall be operated to provide support to its Members for risk management and insurance related issues in connection with the operation of Oak Property and Casualty LLC.
4.
Association Members .
(a) Eligibility . The Members of the Association shall include the four (4) Founding Members identified above. The Board of Directors shall be authorized to adopt and amend regulations concerning the eligibility standards of any new Members of the Association.
(b) Dues . All Members shall pay annual dues in such amounts that shall be determined from time to time by resolution of the Board of Directors. Dues paid to the Association become the property of the Association and any severable or individual interest of any Members terminates upon such payment. Renewal dues shall be payable on or before the beginning of the Members anniversary month after joining the Association.
(c) Membership Term . Membership shall automatically terminate when: (i) a Members risks are no longer reinsured by Oak Property and Casualty LLC, (ii) a Member fails to meet eligibility standards or membership obligations established by the Board of Directors, or (c) for other sufficient cause as determined by the Board of Directors. The Board of Directors shall be authorized to adopt and amend regulations concerning the cancellation of memberships and reinstatement of Members not in good standing. No Member shall have the right to assign, in whole or in part, its membership interest in the Association.
(d) Membership Rights . No Members, other than the Founding Members, shall have voting rights. Each of the Founding Members shall have one vote on all matters submitted for action by the Members. Except for the Founding Members, Members shall have no liability for capital assessments.
(e) Meetings . The Association shall not be required to hold an annual meeting of the Associations Members. Special meetings of the Associations Members may be called by the President, by the Board of Directors, or by not less than two Founding Members upon thirty (30) days written notice mailed or electronically transmitted to each Member of the Association stating the purpose or purposes of such meeting. The presence of representatives from each of the Founding Members shall constitute a quorum at any meeting of the Members. The affirmative vote of three-fourths of the Founding Members shall be required to approve any matter submitted for action by the Members.
5.
Principal Business Office .
The principal business office of the Association shall be located at Aon Insurance Managers (USA) Inc., 76 St. Paul Street, Burlington, Vermont, or at such other location as may hereafter from time to time be determined by the Founding Members.
6.
Registered Agent .
The name and address of the registered agent of the Association for service of process on the Association in the State of Vermont is the Association itself, at its principal business office address as identified above, to the attention of Peter A. Joy.
7.
Powers .
The Association shall have and may exercise all powers, rights and privileges available to an unincorporated association under the laws of Vermont, including but not limited to, the power:
(i) to continue its existence irrespective of the admission and withdrawal or termination of Members;
(ii) to purchase, lease, acquire, hold, improve, dispose of and otherwise deal in and with property of all kinds and any interest therein either in its own name or through a trustee for the use and benefit of its Members;
(iii) to enter into contracts, make investments, borrow money and incur liabilities;
(iv) to provide benefits to its Members consistent with its purposes;
(v) to employ agents and to compensate them for their services;
(vi) to make and alter rules for the regulation of its internal affairs not inconsistent with these Articles of Association; and
(vii) to do everything necessary and convenient for the accomplishment of its purposes and to do other things that are incidental to or connected with such purposes.
8.
Management of the Association .
(a) Board of Directors . Management of the Association shall be vested in a Board of Directors. All management decisions with respect to the Association shall be made by the affirmative vote of three-fourths of the Directors. The Board of Directors shall consist of four (4) individuals elected by the Founding Members. Each Director elected by the Founding Members shall serve until his or her earlier resignation, removal or death.
(b) Meetings of the Board of Directors . Meetings of the Board of Directors may be called by any of the Directors at such time and place as they may designate. Notice of each Directors meeting shall be sent by the President to each Director by mail, facsimile or electronic mail to the address or facsimile number, as the case may be, of each Director in the Associations records. Each Director shall have one vote on each matter considered by the Board of Directors. Meetings may be held by telephone or telecommunications in which all Directors participating may hear each other. Participating in such a meeting shall constitute presence in person at the meeting. The Board of Directors shall appoint an acting secretary to take minutes of each Directors and Members meeting.
(c) President . The Board of Directors shall elect a representative of a Founding Member to serve as the President of the Association. The President shall serve for a term of one year or until his or her earlier resignation, removal or death. The powers and duties of the President shall be determined by the Board of Directors. The President,
subject to the authority granted by the Board of Directors, has the authority to bind the Association.
(d) Removal . Any Director may be removed at any time, with or without cause, by the affirmative vote of three-fourths of the Founding Members. The Board of Directors may remove the President from office by three-fourths vote of the Directors.
(c) Vacancies . Vacancies on the Board of Directors may be filled by the Founding Members. Vacancies in the office of the President may be filled by the Board of Directors.
9.
Distributions .
The Association is organized as a not-for-profit association. No Member is entitled to receive any dividend or distribution of the net income of the Association except as otherwise provided in Section 10 of these Articles of Association.
10.
Dissolution .
The Association shall be dissolved and its affairs concluded upon the affirmative vote of three-fourths of the Founding Members taken at a Members meeting. In the event of dissolution, any funds or other assets of the Association shall be prorated and returned to the Members, then of record as Members, in proportion to the amount of dues and capital assessments paid by such Members to the Association.
11 .
Limited Liability .
Except as otherwise provided in the Act, the debts, obligations and liabilities of the Association, whether arising in tort, contract or otherwise, shall be the debts, obligations and liabilities solely of the Association, and no Member shall be obligated personally for any such debt, obligation or liability of the Association solely by reason of being a member in the Association.
12 .
Indemnification .
To the fullest extent permitted by law, the Association shall indemnify and hold harmless its Directors and President from loss, damage or claims arising out of the discharge of any duty or responsibility of such Directors or the President in their official capacity as such; provided, however, that any act or occurrence or omission was not caused by gross negligence or criminal misconduct. Any indemnification under this Section 12 shall be provided out of and to the extent of Association assets only, and no Member shall have personal liability on account thereof.
13.
Severability of Provisions.
Each provision of these Articles of Association shall be considered severable, and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of these Articles of Association that are valid, enforceable and legal.
14 .
Amendments .
These Articles of Association may not be amended except by the affirmative vote of three-fourths of the Founding Members at a meeting of the Members or by written agreement of all of the Founding Members.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed these Articles of Association as of the day and year first above written.
INLAND REAL ESTATE CORPORATION. (MIDWEST REIT)
/s/ Brett A. Brown ______
Authorized Representative
Vice President/Chief Financial Officer
Title
September 29, 2006
Date
INLAND RETAIL REAL ESTATE TRUST, INC. (EASTERN REIT)
/s/ James W. Kleifges _____
Authorized Representative
Vice President/Chief Financial Officer
Title
September 29, 2006 ______
Date
INLAND WESTERN RETAIL REAL ESTATE TRUST, INC. (WESTERN REIT)
/s/ Steven P. Grimes _____
Authorized Representative
President/Principal Financial Officer
Title
September 29, 2006 ______
Date
INLAND AMERICAN REAL ESTATE TRUST, INC. (AMERICAN REIT)
/s/ Lori J. Foust ____
Authorized Representative
Treasurer/Chief Financial Officer
Title
September 29, 2006 ______
Date
B03138-00001\Doc #: 5
EXHIBIT 10.140
OPERATING AGREEMENT
OF
OAK PROPERTY AND CASUALTY LLC
This Operating Agreement (Agreement) for Oak Property and Casualty LLC (the Company), is adopted and made effective as of the 1st day of October, 2006.
Background
The signatories to this document intend to form a limited liability company, to be named Oak Property and Casualty LLC, under the Vermont Limited Liability Company Act, 11 V.S.A. §§ 3001-3162 (the LLC Act), and subject to applicable provisions of 8 V.S.A., Chapter 141 (Captive Insurance Act) to engage in the business of insuring and reinsuring various types of risk and to carry on and conduct any other lawful business or activity permitted insurance companies under Vermont law.
SECTION 1. Definitions
The following terms shall have the following meanings for purposes of this Agreement:
Affiliate means, with respect to a specified Person, any Person that directly or indirectly controls, is controlled by, or is under common control with, the specified Person. As used in this definition, the term control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
Articles means the Articles of Organization as described in Section 2.1.
Board means the Board of Managers as described in Section 6.1.
Capital Contribution means the initial capital contribution referred to in Section 4.1 and any additional capital contributions made by a Member.
Code means the Internal Revenue Code of 1986, as amended, or any corresponding provision of any succeeding law.
Commissioner means the Commissioner of the Vermont Department of Banking, Insurance, Securities and Health Care Administration.
Covered Person means a Member, a Manager, an Officer, any Affiliate of a Member, a Manager or an Officer, any officers, managers, shareholders, partners, employees, representatives or agents of a Member, a Manager or an Officer, or their respective Affiliates, or any employee or agent of the Company or its Affiliates.
Effective Date shall have the meaning set forth in Section 2.1.
Manager means any person designated by the Member or Members as a manager of the Company within the meaning of the LLC Act.
Member or Members means each Person or Persons signing this Agreement and any Person who subsequently is admitted as a member of the Company, in its capacity as a member of the Company.
Membership Interest means a Members distributional interest in the Company, as defined in the LLC Act. A Membership Interest includes, without limitation, a Members share of the Profits and Losses of, and the right to receive Net Cash Flow and other distributions from the Company. The percentage Membership Interest of each Member is set forth on Exhibit A.
Net Cash Flow means the gross cash proceeds to the Company from all sources less the portion thereof used to pay or establish reserves for Company operating expenses, debt payments, capital improvements, replacements and contingencies, with the amount of all reserves being determined by the Board based on the anticipated requirements of all existing assets then owned by the Company or as provided in a budget approved by the Board.
Officers shall have the meaning set forth in Section 6.10.
Person or Persons means and includes an individual, corporation, partnership, association, limited liability company, trust, estate or other entity.
Profit and Loss mean for each taxable year of the Company (or other period for which Profit or Loss must be computed) the Companys taxable income or loss determined in accordance with the Code.
Successor means all Persons to whom all or any part of a Membership Interest is Transferred.
Transfer means, when used as a noun, any voluntary sale, hypothecation, pledge, assignment, attachment, or other transfer, and, when used as a verb, means voluntarily to sell, hypothecate, pledge, assign, or otherwise transfer.
SECTION 2. Formation of the Company
2
2.1
Effective Date of Agreement; Formation of the Company . This Agreement shall be effective on the date on which it is signed by a duly authorized representative of the Member (the Effective Date). The Member shall cause to be delivered to the Vermont Secretary of State for filing Articles of Organization (the Articles) for the Company.
2.2
Admission of Company as Party to Agreement . Promptly after the formation of the Company, an Officer of the Company shall sign this Agreement on behalf of the Company, and the Company shall become a party to this Agreement.
SECTION 3. N ame of Company; Purposes and Powers, etc.
3.1
Company Name, Purposes, etc . The business and affairs of the Company shall be conducted solely under the name set forth in the Articles, and the purposes, registered agent, registered office, duration and form of management of the Company shall be solely as set forth in that document.
3.2
Powers . The Company shall have all powers identified in the LLC Act and as further determined in the Captive Insurance Act.
3.3
Fiscal year . The fiscal year of the Company shall be the calendar year.
SECTION 4. Contributions and Distributions
4.1
Initial Capital Contribution . Upon the execution of this Agreement, the Members shall contribute to the Company the cash and/or property as may be required by the Commissioner as set forth on Exhibit A. Exhibit A may be amended by the Board from time to time without the consent of the Member or Members upon a Transfer or issuance of Membership Interests.
4.2
Initial Members Membership Interest . The Members shall have, own and hold one hundred percent (100%) of the Membership Interests in the Company in equal proportion.
4.3
Other Capital Contributions and Membership Interests . The Board may issue additional Membership Interests in the Company in exchange for Capital Contributions, in the sole discretion of the Board.
4.4
No Other Capital Contributions Required . Other than the Capital Contributions referred to in Sections 4.1 and 4.3, no Member shall be required to contribute any additional capital to the Company, subject to any obligation arising under Article V, Section 2 of the Membership Participation Agreement.
3
4.5
Loans . Any Member may, at any time, make or cause a loan to be made to the Company in any amount and on those terms upon which the Company and the Member agree.
4.6
Limitations Pertaining to Capital Contributions .
4.6.1
Return of Capital . Except as otherwise provided in this Agreement, no Member may withdraw any Capital Contribution or any money or other property from the Company without the written consent of the Board and the prior written approval of the Commissioner. Under circumstances requiring a return of any Capital Contributions, no Member shall have the right to receive property other than cash, unless otherwise specifically agreed to in writing by the Board at the time of such distribution.
4.6.2
No Interest or Salary . No Member shall receive any interest, salary or draw with, respect to its Capital Contributions or its capital account, and no Member shall receive any payments or fees for services rendered on behalf of the Company or otherwise whether in its capacity as a Member, independent contractor or agent, except as otherwise expressly provided in this Agreement or approved by the Board.
4.6.3
Liability of Members . Except as set forth in the LLC Act, no Member shall have any personal liability for the debts, obligations, liabilities, contracts or any other obligations of the Company, whether arising in contract, tort or otherwise, and no Member shall be required to loan any amounts to the Company. No Member shall have any personal liability for the repayment of the Capital Contributions or loans of any other Member.
4.6.4
No Third Party Rights. Nothing contained in this Agreement is intended or will be deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to require the Company or any Member to solicit or demand Capital Contributions from any other Member.
SECTION 5. Profit, Loss, and Distributions
5.1
Distributions of Net Cash Flow . Net Cash Flow of the Company shall be distributed to the Member or Members at such time and from time to time as the Board of the Company shall determine, subject to the prior written approval of the Commissioner.
5.2
Allocation of Profit or Loss . All Profit or Loss shall be allocated to the Member or Members in accordance with its or their Membership Interests.
5.3
Liquidation and Dissolution . If the Company is dissolved, the assets of the Company shall be distributed to the Member or Members in proportion to its or their Membership Interests after satisfaction of the creditors of the Company in accordance with applicable law.
4
SECTION 6.
Management of the Company; Certain Restrictions on Members; Certain Rights of Members; Member Meetings
6.1
Management of Company; Number of Managers . The management of the Company shall be vested in a board of managers (the Board or collectively, the Managers), the number of which shall range from three (3) to nine (9) and shall be determined by the Member or Members by written resolution. A person elected a Manager is by such election designated a Manager by the Member or Members, and thus the Company shall be manager-managed, for purposes of the LLC Act. At least one Manager shall be a resident of the State of Vermont. Except as otherwise reserved in this Agreement, all Company powers shall be exercised by, or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Board.
6.2
Election of Managers . Each Manager shall be appointed by the Member or Members to serve for a term of one year and until his or her successor is appointed, or until his or her earlier resignation or removal. Vacancies created by reason of an increase in the number of Managers during the course of the year may be filled as provided below. A Manager need not be a Member of the Company.
6.3
Quorum and Voting . Unless otherwise required by this Agreement, one-third of the total number of Managers shall constitute a quorum for the transaction of business. The vote of a majority of the Managers present at a meeting at which a quorum is present shall be the act of the Board.
6.4
Resignation . Any Manager may resign at any time by delivering a written resignation to the Board. Such resignation shall be effective at the date set forth in it, and if there is none, upon receipt.
6.5
Committees . The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, including an executive committee, from among the members of the whole Board. Each committee shall have at least two members. The Board may designate, as alternate members of any such committee, one or more Managers who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the whole Board which establishes it, shall have and may exercise the powers of the Board in the management of the business and affairs of the Company. Any Manager may be a member of more than one committee. The procedures to be followed by such committees with respect to notice, quorum, voting, action without meeting, and other such matters shall be the same as those specified for meetings of the Board.
6.6
Vacancies; Newly-Created Positions for Managers . Any vacancy occurring on the Board by reason of death, resignation, retirement or removal from office of any Manager, or an increase in the number of Managers, may be filled by majority vote of the remaining Managers, although less than a quorum. The Managers so chosen to fill any
5
such vacancy or newly-created position shall hold office until the appointment of their successors by resolution of the Member or Members.
6.7
Place, Time and Notice of Meetings . The Managers may hold their meetings in such place or places, within and without the State of Vermont and at such times as the Board may determine from time to time, provided, however, that at least one meeting each year shall be held in the State of Vermont. No formal notice of meetings to members of the Board shall be required. Oral notice of all meetings of the Board shall be sufficient, and shall be effective when communicated. If written notice is employed, it shall be deemed effective when received or on the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee. A Managers attendance at or participation in a meeting acts as a waiver of any deficiency in the notice to that Manager unless the Manager objects at the beginning of the meeting (or promptly upon the Managers arrival) and the Manager does not thereafter vote for or assent to action taken at the meeting. Notice of a later meeting need not be given to any Manager who attended a prior meeting at which such later meeting was duly called and the time, date, and place thereof noticed.
6.8
Telephone Meetings and Written Consents . Any action required or permitted to be taken at any meeting of the Board or committees thereof may be taken by telephone conference call or other communications equipment, between at least a quorum of the Managers, or may also be taken without a meeting if all members of the Board or committee, as the case may be, consent to such action in writing and the writing or writings are filed in the minute book of the Board or committee.
6.9
Removal of Managers. Any and all Managers may be removed with or without cause by resolution of the Member or Members.
6.10
Officers of the Company . The Board shall appoint a President, a Secretary and a Treasurer, none of whom need be managers. The Board may also appoint one or more Vice Presidents, none of whom need be managers. All Officers of the Company shall hold office at the pleasure of the Board. Any two or more offices, except those of President, Vice President or Secretary may, at the discretion of the Board, be held by the same person. The Board may, from time to time, appoint such other officers and agents with such powers and duties as the Board may prescribe.
6.11
Resignation and Removal . Any Officer of the Company may resign at any time by giving written notice of his or her resignation to the Company. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon receipt by the Company. Unless otherwise specified therein, the acceptance of any such resignation shall not be necessary to make it effective. Any Officer of the Company may be removed, either with or without cause, at any time, by the Board at any meeting thereof.
6
6.12
President . The President shall in general supervise and control all of the business and affairs of the Company. Unless the President is not a member of the Board, the President shall preside, or delegate the authority to preside, at all meetings of the Board and of the Members. The President shall perform all duties incident to the office of President and any other duties prescribed by the Board from time to time.
6.13
Vice President(s) . Each Vice President shall perform all such duties as from time to time may be assigned to him or her by the Board or the President. At the request of the President or in his or her absence or in the event of his or her inability or refusal to act, the Vice President, or if there shall be more than one, the Vice Presidents in the order determined by the Board (or if there be no such determination, then the Vice Presidents in the order of their election), shall perform the duties of the President, and, when so acting, shall have the powers of and be subject to the restrictions placed upon the President.
6.14
Treasurer . The Treasurer, subject to the direction and under the supervision of the Board, shall (a) have general charge of the financial concerns of the Company; (b) have care and custody of the funds and valuable papers of the Company; (c) have authority to endorse for deposit or collection all notes, checks, drafts and other obligations for the payment of money payable to the Company or to its order, and to accept drafts on behalf of the Company; (d) have authority to pay or cause to be paid all distributions or draws voted by the Board or the Member or Members; and (e) keep, or cause to be kept, accurate books of account, which shall be the property of the Company. If required by the Board, the Treasurer shall give the Company a bond in an amount and with a surety or sureties which are satisfactory to the Board for the faithful performance of the duties of the Treasurers office and for the restoration to the Company, in case of the Treasurers death, resignation, retirement or removal from office, of all books, papers, vouchers, moneys and other property of whatever kind in the Treasurers possession or control belonging to the Company.
6.15
Secretary . The Secretary shall keep an attested copy of this Agreement, with a reference on the margin to all amendments hereof. The Secretary shall also keep a record of the meetings of the Board. The Secretary shall (a) keep the minutes of the proceedings of the Members, the Board and committees of the Board in one or more books provided for that purpose; (b) see that all the notices are duly given in accordance with the provisions of this Agreement or as required by law; (c) be custodian of the Company records; (d) keep a register of the post office address of each Member, which shall be furnished to the Secretary by each Member; and (e) in general perform all other duties assigned from time to time by the President or by the Board.
6.16
Assistant Secretaries and Assistant Treasurers . The Assistant Secretaries and Assistant Treasurers, in general, shall perform the duties assigned to them by the Secretary or the Treasurer, respectively, or by the President or the Board. The Assistant
7
Treasurers shall, if required by the Board, give bonds for the faithful performance of their duties in amounts and with a surety or sureties which are satisfactory to the Board.
6.17
Other Powers and Duties . Each Officer shall have in addition to the duties and powers specifically set forth above, such duties and powers as the Board may from time to time delegate to such office.
6.18
Execution of Instruments . Deeds, transfers, assignments, contracts, leases, obligations, certificates and other instruments may be signed on behalf of the Company by any officer. In addition, the Board may from time to time direct the manner in which, and the person or persons by whom, any particular instrument or class of instruments may or shall be signed.
6.19
Officers as Agents . The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board, are agents of the Company for the purpose of the Companys business, and the actions of the Officers taken in accordance with such powers shall bind the Company. Deeds, transfers, assignments, contracts, leases, obligations, certificates and other instruments may be signed on behalf of the Company by any Officer. In addition, the Board may from time to time direct the manner in which, and the person or persons by whom, any particular instrument or class of instruments may or shall be signed.
S ECTION 7. Transfer of Membership Interests
7.1
Transfers Permitted . Any Member may Transfer all, or any portion of, its Membership Interest to one or more Successors, subject to the prior written approval of the Commissioner and the approval of the majority of the Members. If the necessary approval is not received from the Commissioner and the majority of the Members then the transfer may not take place and the insurance coverage provided to the Successors will be terminated within 90 days of the change in ownership of the Member to the Successor.
7.2
Successor as Member . In the event of any permitted Transfer of all or any part of a Membership Interest to a Successor, the Successor shall be admitted to the Company as a Member at such time as the Board determines (but not before the Successor has executed a counterpart to this Agreement), and the Company shall be continued without dissolution.
SECTION 8. Dissociation
8.1.
General Rule . A Member may be dissociated from the Company upon the occurrence of any one or more of the events specified in Section 3081, excluding subsection 3081(11), of the LLC Act. The Member may also be dissociated from the
8
Company if it fails to purchase insurance from the Company or whose insurance is non-renewed or cancelled by the Company.
8.2.
Effect of Dissociation . If a Member is dissociated from the Company pursuant to the provisions of Section 8.1 hereof or applicable provisions in the Membership Participation Agreement, the terms of the purchase of the dissociated Membership Interest shall be governed by Article V of the Membership Participation Agreement. .
In the event that a Member fails to purchase insurance from the Company for at least five (5) consecutive years, such Member shall pay to the Company, in the form of liquidated damages, an amount approved by the majority of the Members not greater than the pro-rated premium amounts based upon the last year of participation that would have been satisfied had the Member purchased insurance from the Company for five (5) consecutive policy years.
8.4.
Statement of Dissociation . Immediately upon the dissociation of any Member, the Managers will file a statement of dissociation in the office of the Vermont Secretary of State in accordance with Section 3094 of the LLC Act.
SECTION 9. Dissolution
9.1
The Company shall be dissolved only upon the occurrence of one or more of the following events:
(a)
Adoption of a resolution of the Member or Members that the Company be dissolved; or
(b)
An administrative or judicial decree of dissolution.
9.2
Procedure for Winding Up and Dissolution . If the Company is dissolved, the affairs of the Company shall be wound up. On winding up of the Company, the assets of the Company shall be distributed, first to creditors of the Company in satisfaction of the liabilities of the Company, and then to the Member or Members of the Company in proportion to their Membership Interests.
9.3
Filing of Articles of Termination . Upon the completion of the winding up of the Company, the Board or any member thereof (or such other Person or Persons as the LLC Act may require or permit) shall promptly file Articles of Termination with Vermont Secretary of State.
SECTION 10. Books and Records, Accounting and Tax Election
10.1
Bank Accounts . All funds of the Company shall be deposited in a bank account or accounts opened in the Companys name. The Board shall determine the
9
institution or institutions at which the accounts will be opened and maintained, the types of accounts, and the Persons who will have authority with respect to the accounts and the funds therein.
10.2
Books and Records . The Board shall keep or cause to be kept complete and accurate books and records of the Company including a proper and current capital account for each Member. The books and records shall comply with all applicable federal income tax regulations and with generally accepted accounting practices as applicable to limited liability companies. The Members shall have the right to inspect and copy (at their own expense) the Company books and records at the principal office of the Company during ordinary business hours for a proper purpose provided that they have provided written notice of their intention to inspect such books and records and a statement of the proper purpose for such inspection at least five (5) business days prior to such inspection.
10.3
Annual Accounting Period . The annual accounting period of the Company shall be its taxable year. The Companys taxable year shall be selected by the Board, subject to the requirements and limitations of the Code.
10.4
Annual Reports Relating to Tax Return Preparation . Within sixty (60) days after the close of the fiscal year of the Company, the Company shall prepare and deliver to the Members written reports which shall contain all information in possession of the Company that is reasonably necessary to enable the Members to prepare their federal income tax returns.
SECTION 11. Term and Termination
11.1
The term of this Agreement shall begin on the Effective Date and shall end upon the earlier of:
(a)
the date on which the Company ceases to exist under this Agreement or under other applicable law; or
(b)
the date on which the Member or Members resolve to terminate this Agreement; or
SECTION 12. Member and Manager Duties and Liabilities; Indemnification; Advancement of Expenses
12.1
Member Duties . Except as provided in this Agreement, a Member in its capacity as Member shall have no duty toward the Company.
12.2
Duty of Good Faith, etc. In carrying on the business and affairs of the Company, each Manager and Officer shall act in accordance with the standards set forth in 11 V.S.A. §§ 3059(b) through (d) inclusive and 3083(b)(3).
10
12.3
Liability for Violations of Duty of Care or Duty of Loyalty .
(i)
No Covered Person shall be liable to the Company or any other Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be in the best interests of the Company and within the scope of authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Persons gross negligence or willful misconduct.
(ii)
A Covered Person shall be fully protected in relying in good faith upon the records of the Company and such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Persons professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, Profits, Losses or Net Cash Flow or any other facts pertinent to the existence and amount of assets from which distributions to the Member or Members might properly be paid.
(iii)
To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, such Covered Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Covered Person.
12.4
Indemnification . To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered
11
Person by reason of gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 12.4 shall be provided out of and to the extent of Company assets only, and no Covered Person shall have any personal liability with respect to such indemnity.
12.5
Expenses . To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in Section 12.4 hereof.
12.6
Insurance . The Company may purchase and maintain insurance, to the extent and in such amounts as the Board shall, in its sole discretion, deem reasonable, on behalf of Covered Persons and such other Persons as the Board shall determine, against any liability that may be asserted against or expenses that may be incurred by any such Person in connection with the activities of the Company or such indemnities, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement. The Company may enter into indemnity contracts with Covered Persons and such other Persons as the Board shall determine and adopt written procedures pursuant to which arrangements are made for the advancement of expenses and the funding of obligations under Section 12.5 hereof and containing such other procedures regarding indemnification as are appropriate.
12.7
Outside Businesses . Any Member or Affiliate thereof may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Company, and the Company and the Members shall have no rights by virtue of this Agreement in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Company, shall not be deemed wrongful or improper. No Member or Affiliate thereof shall be obligated to present any particular investment opportunity to the Company even if such opportunity is of a character that, if presented to the Company, could be taken by the Company, and any Member or Affiliate thereof shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment opportunity.
12
SECTION 13. Miscellaneous Provisions
13.1
Incorporation of Articles . The Articles are hereby incorporated in this Agreement and made an integral part of it.
13.2
Amendments . This Agreement or the Articles may be amended only by resolution of the Member or Members.
13.3
Applicability of the LLC Act . Except as otherwise expressly provided in this Agreement and in the Articles, all provisions of the LLC Act as now in effect and as amended from time to time shall apply in the Agreement as if fully incorporated herein.
13.4
Governing law . This Agreement shall be deemed to have been made in the State of Vermont and the validity, enforceability, construction, interpretation and enforcement of this Agreement and the rights of the parties hereto shall be determined under, governed by and construed in accordance with the laws of the State of Vermont, without regard to the principles of conflicts of law.
13.5
Captions . Captions in this Agreement are for convenience only and shall be deemed irrelevant in construing its provisions.
13.6
Binding Provisions . This Agreement is binding upon, and inures to the benefit of, the parties hereto and their respective heirs, executors, administrators, personal and legal representatives, Successors, and permitted assigns.
13
IN WITNESS OF its acceptance of the above terms and conditions, the Member has duly signed and dated, and an Officer has duly countersigned on behalf of the Company, this Agreement as follows:
Inland Real Estate Corporation (Midwest REIT)
By:
/s/ Brett A. Brown __________
Date:
September 29, 2006
Its Duly Authorized Representative
Inland Retail Real Estate Trust, Inc. (Eastern REIT)
By:
James W. Kleifges ____________
Date:
September 29, 2006
Its Duly Authorized Officer
Inland Western Retail Real Estate Trust, Inc. (Western REIT)
By:
Steven P. Grimes __________
Date:
September 29, 2006
Its Duly Authorized Representative
Inland American Real Estate Trust, Inc. (American REIT)
By:
Lori J. Foust ________________
Date:
September 29, 2006
Its Duly Authorized Officer
14
Exhibit A
Member |
Member Interest |
Contribution |
Inland Real Estate Corporation (Midwest REIT) |
25% |
$187,500.00 |
Inland Retail Real Estate Trust, Inc. (Eastern REIT) |
25% |
$187,500.00 |
Inland Western Retail Real Estate Trust, Inc. (Western REIT) |
25% |
$187,500.00 |
Inland American Real Estate Trust, Inc. (American REIT) |
25% |
$187,500.00 |
B03167-00001\Doc #: 6
EXHIBIT 10.141
OAK PROPERTY AND CASUALTY LLC
MEMBERSHIP PARTICIPATION AGREEMENT
This Membership Participation Agreement (the Agreement) is made as of the 1 st day of October, 2006, by and among the undersigned participants (the Member or Members) and Oak Property and Casualty LLC, a Vermont captive insurance company, with a principal place of business at 76 St. Paul Street, Burlington, Vermont (the Company).
In consideration of the mutual covenants and agreements set forth herein, the parties agree as follows:
ARTICLE I
Limitation of Liability
Section 1. Limitation on Members Financial Liability.
(a)
In General . No Member, individual or organization shall have the authority to increase the undersigned Member's liability as set forth in this Agreement. The Members membership in the Company shall be regarded as membership in a limited liability company. Annually the Company will oversee the purchase of one or more insurance policies that will be acceptable to all Members. Portions of these insurance policies agreed upon by all Members will be funded or reimbursed by insurance policies purchased from the Company by the Members.
(b)
Payment of Non-Catastrophic Premium . For insurance policy years beginning as of October 1, 2006, and for each year thereafter, each Member shall pay a premium for the insurance policy(ies) based on a determination by the Companys third-party, independent, consulting actuary ( Actuary) of losses, loss reserves, loss expenses, and a proportional allocation of all associated costs for operating, managing, and maintaining the Company. Each Member agrees to pay its premium within thirty (30) days of receiving of an invoice from the Company. The actual loss experience of each Member will be reviewed by the Actuary and shall form the basis of their future premium contributions.
(c)
Non-Catastrophic Loss Sharing Among Members . Each Member acknowledges and agrees that, with respect to insurance policy years beginning October 1, 2006, and for each year thereafter, it shall share a portion of the losses and loss expenses, both paid and estimated to be paid in the future by the Actuary, that exceed the premium contribution of any other Member pursuant to a loss sharing formula determined by the
Actuary and approved by the Board of Directors, which may be amended from time to time. Under the current formula, the afore-described Members loss with respect to a policy year shall be shared among Members in proportion to their premium contribution as a percentage of the total premium contributions of all Members.
(d)
Catastrophic Deductible Funding . On a voluntary basis each Member may participate in funding for the loss retained under the deductible provision of its insurance policy that will be available in the event of a catastrophic occurrence as defined in the Named Windstorm or Earthquake section of the insurance policy.
(d.1)
Contribution . The contribution will be based on current catastrophic modeling formulas for determining exposure. The agreed upon funding level for that policy year will be divided amongst each participating Member according to its potential average annual loss as determined by the modeling process. The total of all contributions shall be known as the Catastrophic Deductible Fund.
(d.2)
Allocation of Deductible. Within ninety (90) days of the end of the policy year each Member participating in the catastrophic deductible funding shall submit to the Company a listing of any and all claims that fall within the catastrophic deductible. Each Member submitting a valid, accepted claim will be paid a percentage of the Catastrophic Deductible Fund equal to the value of their claims expressed as a percentage of the total value of all valid, accepted claims.
(d.3)
Catastrophic Limitation . The fund will not pay out more than the Catastrophic Deductible Fund. No additional contributions will be assessed each participating Member during the policy year.
Section 2. Rights to Participate in Governance and Business of the Company . The Member agrees that its rights to participate in the governance and business of the Company are limited to the provisions of the Operating Agreement of the Company, including the election or appointment of one or more directors and officers of the Company.
ARTICLE II
Representations and Warranties
Section 1. Representations and Warranties of Each Member . Each of the undersigned Members hereby represents and warrants to the other Members and to the Corporation that:
2
(a)
The Member has full power and authority, and has taken all necessary and proper action under its governing instruments and under applicable state law, to execute and deliver this Agreement and to consummate the transactions contemplated hereby.
(b)
This Agreement constitutes a valid and binding obligation of the Member, enforceable against it in accordance with its terms.
(c)
There are no actions pending or, to the best of its knowledge, threatened by or against the Member with respect to this Agreement to which such Member is a Party, or in connection with the transactions contemplated hereby.
(d)
To the best of its knowledge after diligent inquiry, all information supplied by the Member to the Company in connection with its application for membership, including but not limited to exposure information and loss data, is true and correct.
(e)
It has been provided with a true and correct copy of the Companys Business Plan, Articles of Organization and Operating Agreement as they currently exist. It has carefully considered and, to the extent Member believes such discussion necessary, discussed with its professional financial, legal and tax advisors the suitability of becoming a member of the Company.
(f)
It has such knowledge and experience in financial, insurance and business matters that it is capable of evaluating the merits and risks of becoming a Member of the Company and purchasing policies of insurance from the Company. In making such evaluation, it has not relied upon any representations or other information from the Company, other than as set forth in the Companys Business Plan, Articles of Organization, Operating Agreement and the insurance coverage proposal, including premium quotations and insurance policy provisions.
Section 2. Representations and Warranties of the Company . The Company hereby represents and warrants to each undersigned Member that:
(a)
It has full power and authority, and has taken all necessary and proper action under its governing documents and under applicable state law, to execute and deliver this Agreement and to consummate the transactions contemplated hereby.
(b)
This Agreement constitutes a valid and binding obligation of the Company, enforceable against it in accordance with its terms.
3
(c)
There are no actions pending or, to the best of its knowledge, threatened by or against the Company with respect to this Agreement to which the Company is a Party, or in connection with the transactions contemplated hereby, nor does the Company have reason to believe there is a valid basis for any such action.
(d)
To the best of its knowledge after diligent inquiry, all information supplied by the Company in connection with the application for membership is true and correct.
(e)
The Company will operate in a manner consistent with requirements imposed by Vermont law.
Section 3. Survival of Representations . All representations, warranties and agreements made in this Agreement or pursuant hereto shall survive the execution, delivery and termination hereof.
ARTICLE III
Acknowledgments
Section 1. Member Acknowledgments . The undersigned Member understands, acknowledges and agrees with the Company as follows:
(a)
To comply with all reasonable underwriting, claims management, risk management and loss control standards established by the Company, and shall take any and all actions required by the Company to address risk management, loss prevention and loss control objectives.
(b)
That its membership may be terminated as provided in the Companys Operating Agreement. Failure of any Member to obtain a policy of insurance as provided in this Agreement shall result in immediate termination of membership.
(c)
It acknowledges that it understands that it has read and agreed with the Business Plan as filed with the Vermont Department of Banking, Insurance, Securities and HealthCare Administration (BISHCA) and understands that there are certain risks inherent to insurance provided by a captive insurance company. These risks include, but are not limited to, reinsurer insolvency in which case the Company (but not the individual Members) would remain liable to the insured for the full amount of claims under the insurance policy and which would have a material adverse impact on the Company; guaranty funds are not available to protect policyholders in the event of an insolvency of the Company; risk of underwriting and investment losses could adversely impact the Companys financial ability to pay claims; and the Company is a captive insurer domicile in the state of
4
Vermont and is not subject to all of the regulatory requirements imposed on traditional insurers.
ARTICLE IV
Profit Participation in the Company
All policies issued by the Company will give each insured the right of Policyholder Dividends. The Policyholder Dividends formula, and the terms and timing of payment, as determined by the Actuary and approved by the Board of Managers, may be amended from time to time. The insureds right to a Policyholder Dividend will be based upon a rolling 3 year policy period such that the profit or loss of all three policy years is combined together. The incurred but not reported losses associated with each insurance policy will be included in the calculation of the profit or loss of each policy year. Any Policyholder Dividend declared by the Board of Managers shall not be distributed unless and until the Company obtains the prior written approval of the Vermont Department of Banking, Insurance, Securities and HealthCare Administration (BISHCA).
Policyholder Dividends declared by the Board of managers and approved by BISHCA shall be made to each Member who is a Member on the date the distribution was declared by the Board of Managers.
ARTICLE V
Termination of Members Participation in the Company
Section 1. Events of Termination . A Members Participation in this Agreement shall terminate upon notice of a Members intent to redeem its membership interest or upon cancellation or non-renewal of the Members insurance coverage through the Company, for any reason in accordance with the insurance policy issued by the Company (Terminating Member). Further, if a Member does not act in accordance with Article I, or other provisions of this Agreement or the Operating Agreement, then their membership may be terminated by a unanimous vote of the remaining Members and they shall be given ninety (90) days notice in which to secure other insurance coverage before the coverage provided by the Company shall be cancelled. Such a Member is referred to as a Terminated Member. Each Member agrees to purchase insurance maintain its membership interest for a minimum of five (5) consecutive years, or for a shorter period of time as determined by the Members. In the event that a Terminating Member fails to purchase insurance from the Company for at least five (5) consecutive years, such Terminating Member shall pay to the Company, in the form of liquidated damages, an amount approved by the majority of the Members not greater than the pro-rated premium amounts based upon the last year of participation that would have been satisfied had the Member purchased insurance from the Company for five (5) consecutive policy years. Effective with such termination the Terminating or Terminated Member will no longer be a current Member of the Company, but the Member agrees to continue to be bound by the
5
terms of this Agreement with respect to the disposition of the Members capital and surplus contribution as set forth herein.
Section 2. Post-Termination Disposition of Members Capital and Surplus . The Company will retain the balance of the Members capital and surplus contribution for a period of five (5) years after the close of the year in which the Member terminates its status as a current Member, or a for a shorter period of time as determined by the Members or Board of Managers. During such five (5) year period (or any shorter period), the Company will continue to calculate the underwriting profit or loss of all policy years in which the terminating Member participated including the inclusion of incurred but not reported losses. At the end of such five (5) year period (or any shorter period) the total premium will be added to, and the total loss including actuarially determined incurred but not reported reserves will be subtracted from, the Members capital and surplus and the balance if positive will be paid to the Member. The balance, if negative, will be assessed and must be paid by the terminating Member prior to its removal. Alternatively, the terminating Member may purchase an insurance policy, at its own expense, to protect the Company from any future loss, or the Member may enter into a contractual agreement which will move the responsibility for all future loss payment from the Company to the Member itself.
Section 3. No Return if a Violation of Law . Payment occasioned by termination of a Member is subject to prior approval by BISHCA and shall not be made if such payment would cause the capital and surplus to drop below the minimum required by 8 V.S.A. § 6004(a)(2). Any such proposed payment shall be deferred until such payment does not cause, or is not likely to cause, a violation of law as set forth in the prior sentence.
ARTICLE VI
Distribution of Assets Upon Liquidation.
Upon liquidation of the Company, its assets remaining after discharge of its liabilities and insurance policy obligations shall be distributed to the Members according to its percentage of financial interest in the Company.
ARTICLE VII
Effective Date of Agreement
Section 1. Effective Date . This Agreement shall be effective on the date on which: (a) this Agreement has been duly executed and delivered by the undersigned Member and by the Company, and (b) the undersigned Member has delivered its required surplus contribution to the Company.
Section 2. Term . This Agreement will remain in effect so long as the undersigned Member has in force policies of insurance from the Company and until the undersigned Member voluntarily withdraws its membership in the Company or its membership is
6
terminated. Following termination, expulsion or withdrawal, the Members right to vote as a Member shall terminate, but the Member shall remain bound by this Agreement.
Section 3. Additional Members . Subject to the requirements of the Companys Articles of Organization and Operating Agreement, additional eligible entities may become Members by signing an appropriate counterpart to this Agreement, as it may be amended from time to time, without the signatures of the other Members being required. The withdrawal of a Member from this Agreement, whether because such Party ceases to obtain insurance from the Company or otherwise, shall not invalidate or affect in any manner this Agreement with respect to the other Parties hereto.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the state of Vermont (without regard to Vermonts conflict of law principles).
Section 2. Notices . All notices and other communications hereunder shall be in writing and may be communicated by facsimile, electronic mail or other form of written or wire communication, or by mail or private carrier to each Party at its physical address, electronic mail address or facsimile number as it appears below, or at such other address for a Party as shall be specified by like notice. If notice is sent by electronic mail, such notice shall be effective upon the Companys receipt of electronic confirmation. If notice is sent by facsimile, such notice shall be effective on the date shown on the facsimile transmission receipt indicating that such facsimile was successfully transmitted. Written notice shall be deemed to be effective when mailed first class postpaid and correctly addressed to the Partys mailing address as it appears below, or at such other address for a Party as shall be specified by like notice.
If to the Company, to:
76 St. Paul Street
Suite 500
Burlington, VT 05401-4477
If to Member, to:
Inland Risk and Insurance Management Services, Inc.
2901 Butterfield Road
Oak Brook, IL 60523
Notices and communications delivered by certified or registered mail shall be deemed to have been given on the date entered on the return receipt.
Section 3. Amendments . This Agreement may be amended, modified or supplemented only by written agreement duly executed by all of the Parties hereto.
Section 4. Entire Agreement . This Agreement constitutes the entire agreement and understanding of the Parties hereto in respect of the subject matter contained herein.
7
Section 5. Severability . If any provision of this Agreement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
Section 6. Assignment . This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns, as the case may be; provided, however, that no Member may assign this Agreement in whole or in part, or any of its rights, duties, powers or privileges hereunder, without the prior written consent of the Company.
Section 7. No Waiver . The failure of either Party at any time to require the other Partys performance of any provision hereof shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or modification of the provision itself, or a waiver or modification of any other right under this Agreement.
Section 8. Article and Section Headings . The title headings of the respective Articles and Sections of this Agreement are included for convenience only and shall not otherwise be deemed to be a part of this Agreement or considered in its construction.
Section 9. Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF , the undersigned hereby executes this instrument this _____ day of _____________, 2006.
Inland Real Estate Corporation (Midwest REIT)
By: /s/ Brett A. Brown ___________
Date: September 29, 2006 ___
Its Duly Authorized Representative
Inland Retail Real Estate Trust, Inc. (Eastern REIT)
By:
/s/ James W. Kleifges ____
Date: September 29, 2006 ____
Its Duly Authorized Officer
8
Inland Western Retail Real Estate Trust, Inc. (Western REIT)
By:
/s/ Steven P. Grimes __________
Date: September 29, 2006 ____
Its Duly Authorized Representative
Inland American Real Estate Trust, Inc. (American REIT)
By:
/s/ Lori J. Foust _____________
Date: September 29, 2006 ____
Its Duly Authorized Officer
Oak Property and Casualty LLC
By:
/s/ Steven P. Grimes __________
Date: September 29, 2006 ____
Its Duly Authorized Officer
03167-00001\Doc #: 17