This
Mortgage was prepared by:
Rachael
Yurisich, Loan Processor
Black
Hills Community Bank, N.A.
840
Mount Rushmore Road
Rapid
City, SD 57701
(605)
343-2422
MORTGAGE
- COLLATERAL REAL ESTATE MORTGAGE
-
180 DAY REDEMPTION
MAXIMUM
LIEN. The lien of this Mortgage shall not exceed at any one time
$8,000,000.00.
THIS
MORTGAGE dated May 17, 2018, is made and executed between DLORAH,
Inc., A South Dakota Corporation, whose address is 5301 Mount
Rushmore Rd., Rapid City, SD 57701 ("Mortgagor", referred to below
as "Grantor") and Black Hills Community Bank, N.A., whose address
is 840 Mount Rushmore Road, Rapid City, SD 57701 ("Mortgagee",
referred to below as "Lender").
GRANT OF MORTGAGE. For valuable consideration,
Grantor mortgages to Lender
all of Grantor's right, title,
and interest in and to the following described real property,
together with all existing or subsequently erected or affixed
buildings, improvements and fixtures; all easements, rights of way,
and appurtenances; all water, water rights, watercourses and ditch
rights (including stock in utilities with ditch or irrigation
rights); and all other rights, royalties, and profits relating to
the real property, including without limitation all minerals, oil,
gas, geothermal and similar matters,
(the "Real Property") located in Pennington
County, State of South Dakota:
Lot
1 of Fairway Hills P.R.D. in the City of Rapid City, Pennington
County, South Dakota, as shown on the plat filed in Plat Book 14,
Page 259; EXCEPTING therefrom Lot H1 of said Lot 1, as shown on the
plat filed in Highway Plat Book 10, Page 20.
Lot
2 of Fairway Hills P.R.D. in the City of Rapid City, Pennington
County, South Dakota, as shown on the plat filed in Plat Book 15,
Page 215; EXCEPTING therefrom Lot H1 of said Lot 2, as shown on the
plat filed in Highway Plat Book 8, Page 7, and amended plat filed
in Highway Plat Book 8, Page 40.
Lot
30 of Fairway Hills P.R.D. in the City of Rapid City, Pennington
County, South Dakota, as shown on the plat filed in Plat Book 19,
Page 124.
Tract
G Revised, Tract H Revised and Lot 1 Revised of Tract I of
Arrowhead View Addition to the City of Rapid City, Pennington
County, South Dakota, as shown on the plat filed in Document No.
A201512192.
The
Real Property or its address is commonly known as Fairway Hills
Property & Doral Drive Property, Rapid City, SD 57702. The Real
Property tax identification numbers are 44028, 45592, 38049,
66563.
Grantor
presently assigns to Lender all of Grantor's right, title, and
interest in and to all present and future leases of the Property
and all Rents from the Property. In addition, Grantor grants to
Lender a Uniform Commercial Code security interest in the Personal
Property and Rents.
FUTURE ADVANCES.
In addition to the
Note, this Mortgage secures all future advances made by Lender to
Borrower whether or not the advances are made pursuant to a
commitment. Specifically, without limitation, this Mortgage
secures, in addition to the amounts specified in the Note, all
future amounts Lender in its discretion may loan to Borrower,
together with all interest thereon; however, in no event shall such
future advances (excluding interest) exceed in the aggregate
$8,000,000.00.
THE
PARTIES AGREE THAT THIS MORTGAGE CONSTITUTES A COLLATERAL REAL
ESTATE MORTGAGE PURSUANT TO SDCL 44-8-26.
THIS
MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY
INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A)
PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL
OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS
MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING
TERMS:
MORTGAGE TERM AND LIEN.
This Mortgage
shall, notwithstanding the fact that from time to time during the
term hereof no Indebtedness may be due from Borrower to Lender,
constitute a continuing lien against the Property for the amount
stated in this document. If at any time the Indebtedness due Lender
is zero dollars ($0.00), Lender shall, within ten (10) days after
receipt of written demand for satisfaction of this Mortgage by
Grantor, execute and record a satisfaction.
The original term of this Mortgage is five (5)
years from the date of filing unless such term is extended by the
filing of an Addendum to this Mortgage.
Any Addendum to this
Mortgage need be signed only by Lender. Upon the timely filing of
such an Addendum to this Mortgage, the effectiveness of this
Mortgage shall be continued for five (5) years after the date of
filing. This Mortgage shall lapse after the additional five (5)
year period unless another Addendum to this Mortgage is filed
continuing the effectiveness of this Mortgage prior to such lapse.
Succeeding Addendums to this Mortgage may be filed in the same
manner to continue the effectiveness of the lien of this
Mortgage.
GRANTOR'S REPRESENTATIONS AND
WARRANTIES.
Grantor warrants that: (a) this Mortgage is
executed at Borrower's request and not at the request of Lender;
(b) Grantor has the full power, right, and authority to enter into
this Mortgage and to hypothecate the Property; (c) the provisions
of this Mortgage do not conflict with, or result in a default under
any agreement or other instrument binding upon Grantor and do not
result in a violation of any law, regulation, court decree or order
applicable to Grantor; (d) Grantor has established adequate means
of obtaining from Borrower on a continuing basis information about
Borrower's financial condition; and (e) Lender has made no
representation to Grantor about Borrower (including without
limitation the creditworthiness of Borrower).
PAYMENT AND PERFORMANCE.
Except as
otherwise provided in this Mortgage, Borrower shall pay to Lender
all Indebtedness secured by this Mortgage as it becomes due, and
Borrower and Grantor shall strictly perform all Borrower's and
Grantor's obligations under this Mortgage.
POSSESSION AND MAINTENANCE OF THE
PROPERTY.
Borrower and Grantor agree that Borrower's and
Grantor's possession and use of the Property shall be governed by
the following provisions:
Possession and Use.
Until the occurrence
of an Event of Default, Grantor may (1) remain in possession and
control of the Property; (2) use, operate or manage the Property;
and (3) collect the Rents from the Property.
Duty to Maintain.
Grantor shall maintain
the Property in tenantable condition and promptly perform all
repairs, replacements, and maintenance necessary to preserve its
value.
Compliance With Environmental Laws.
Grantor represents and warrants to Lender that: (1) During the
period of Grantor's ownership of the Property, there has been no
use, generation, manufacture, storage, treatment, disposal, release
or threatened release of any Hazardous Substance by any person on,
under, about or from the Property; (2) Grantor has no knowledge of,
or reason to believe that there has been, except as previously
disclosed to and acknowledged by Lender in writing, (a) any breach
or violation of any Environmental Laws, (b) any use, generation,
manufacture, storage, treatment, disposal, release or threatened
release of any Hazardous Substance on, under, about or from the
Property by any prior owners or occupants of the Property, or (c)
any actual or threatened litigation or claims of any kind by any
person relating to such matters; and (3) Except as previously
disclosed to and acknowledged by Lender in writing, (a) neither
Grantor nor any tenant, contractor, agent or other authorized user
of the Property shall use, generate, manufacture, store, treat,
dispose of or release any Hazardous Substance on, under, about or
from the Property; and (b) any such activity shall be conducted in
compliance with all applicable federal, state, and local laws,
regulations and ordinances, including without limitation all
Environmental Laws. Grantor authorizes Lender and its agents to
enter upon the Property to make such inspections and tests, at
Grantor's expense, as Lender may deem appropriate to determine
compliance of the Property with this section of the Mortgage. Any
inspections or tests made by Lender shall be for Lender's purposes
only and shall not be construed to create any responsibility or
liability on the part of Lender to Grantor or to any other person.
The representations and warranties contained herein are based on
Grantor's due diligence in investigating the Property for Hazardous
Substances. Grantor hereby (1) releases and waives any future
claims against Lender for indemnity or contribution in the event
Grantor becomes liable for cleanup or other costs under any such
laws; and (2) agrees to indemnify, defend, and hold harmless Lender
against any and all claims, losses, liabilities, damages,
penalties, and expenses which Lender may directly or indirectly
sustain or suffer resulting from a breach of this section of the
Mortgage or as a consequence of any use, generation, manufacture,
storage, disposal, release or threatened release occurring prior to
Grantor's ownership or interest in the Property, whether or not the
same was or should have been known to Grantor. The provisions of
this section of the Mortgage, including the obligation to indemnify
and defend, shall survive the payment of the Indebtedness and the
satisfaction and reconveyance of the lien of this Mortgage and
shall not be affected by Lender's acquisition of any interest in
the Property, whether by foreclosure or otherwise.
Nuisance, Waste.
Grantor shall not
cause, conduct or permit any nuisance nor commit, permit, or suffer
any stripping of or waste on or to the Property or any portion of
the Property. Without limiting the generality of the foregoing,
Grantor will not remove, or grant to any other party the right to
remove, any timber, minerals (including oil and gas), coal, clay,
scoria, soil, gravel or rock products without Lender's prior
written consent.
Removal of Improvements.
Grantor shall
not demolish or remove any Improvements from the Real Property
without Lender's prior written consent. As a condition to the
removal of any Improvements, Lender may require Grantor to make
arrangements satisfactory to Lender to replace such Improvements
with Improvements of at least equal value.
Lender's Right to Enter.
Lender and
Lender's agents and representatives may enter upon the Real
Property at all reasonable times to attend to Lender's interests
and to inspect the Real Property for purposes of Grantor's
compliance with the terms and conditions of this
Mortgage.
Compliance with Governmental
Requirements.
Grantor shall promptly comply with all laws,
ordinances, and regulations, now or hereafter in effect, of all
governmental authorities applicable to the use or occupancy of the
Property, including without limitation, the Americans With
Disabilities Act. Grantor may contest in good faith any such law,
ordinance, or regulation and withhold compliance during any
proceeding, including appropriate appeals, so long as Grantor has
notified Lender in writing prior to doing so and so long as, in
Lender's sole opinion, Lender's interests in the Property are not
jeopardized. Lender may require Grantor to post adequate security
or a surety bond, reasonably satisfactory to Lender, to protect
Lender's interest.
Duty to Protect.
Grantor agrees neither
to abandon or leave unattended the Property. Grantor shall do all
other acts, in addition to those acts set forth above in this
section, which from the character and use of the Property are
reasonably necessary to protect and preserve the
Property.
TAXES AND LIENS.
The following
provisions relating to the taxes and liens on the Property are part
of this Mortgage:
Payment.
Grantor shall pay when due (and
in all events prior to delinquency) all taxes, payroll taxes,
special taxes, assessments, water charges and sewer service charges
levied against or on account of the Property, and shall pay when
due all valid and enforceable claims for work done on or for
services rendered or material furnished to the Property. Grantor
shall maintain the Property free of any liens having priority over
or equal to the interest of Lender under this Mortgage, except for
those liens specifically agreed to in writing by Lender, and except
for the lien of taxes and assessments not due as further specified
in the Right to Contest paragraph.
Right to Contest.
Grantor may withhold
payment of any tax, assessment, or claim in connection with a good
faith dispute over the obligation to pay, so long as Lender's
interest in the Property is not jeopardized. If a lien arises or is
filed as a result of nonpayment, Grantor shall within fifteen (15)
days after the lien arises or, if a lien is filed, within fifteen
(15) days after Grantor has notice of the filing, secure the
discharge of the lien, or if requested by Lender, deposit with
Lender cash or a sufficient corporate surety bond or other security
satisfactory to Lender in an amount sufficient to discharge the
lien plus any costs and attorneys' fees, or other charges that
could accrue as a result of a foreclosure or sale under the lien.
In any contest, Grantor shall defend itself and Lender and shall
satisfy any adverse judgment before enforcement against the
Property. Grantor shall name Lender as an additional obligee under
any surety bond furnished in the contest proceedings.
Evidence of Payment.
Grantor shall upon
demand furnish to Lender satisfactory evidence of payment of the
taxes or assessments and shall authorize the appropriate
governmental official to deliver to Lender at any time a written
statement of the taxes and assessments against the
Property.
Notice of Construction.
Grantor shall
notify Lender at least fifteen (15) days before any work is
commenced, any services are furnished, or any materials are
supplied to the Property, if any mechanic's lien, materialmen's
lien, or other lien could be asserted on account of the work,
services, or materials and the cost exceeds $25,000.00. Grantor
will upon request of Lender furnish to Lender advance assurances
satisfactory to Lender that Grantor can and will pay the cost of
such improvements.
PROPERTY DAMAGE INSURANCE.
The following
provisions relating to insuring the Property are a part of this
Mortgage:
Maintenance of Insurance.
Grantor shall
procure and maintain policies of fire insurance with standard
extended coverage endorsements on a replacement basis for the full
insurable value covering all Improvements on the Real Property in
an amount sufficient to avoid application of any coinsurance
clause, and with a standard mortgagee clause in favor of Lender.
Grantor shall also procure and maintain comprehensive general
liability insurance in such coverage amounts as Lender may request
with Lender being named as additional insureds in such liability
insurance policies. Additionally, Grantor shall maintain such other
insurance, including but not limited to hazard, business
interruption and boiler insurance as Lender may require. Policies
shall be written by such insurance companies and in such form as
may be reasonably acceptable to Lender. Grantor shall deliver to
Lender certificates of coverage from each insurer containing a
stipulation that coverage will not be cancelled or diminished
without a minimum of thirty (30) days' prior written notice to
Lender and not containing any disclaimer of the insurer's liability
for failure to give such notice. Each insurance policy also shall
include an endorsement providing that coverage in favor of Lender
will not be impaired in any way by any act, omission or default of
Grantor or any other person. The Real Property is or will be
located in an area designated by the Administrator of the Federal
Emergency Management Agency as a special flood hazard area. Grantor
agrees to obtain and maintain Federal Flood Insurance, if
available, for the full unpaid principal balance of the loan and
any prior liens on the property securing the loan, up to the
maximum policy limits set under the National Flood Insurance
Program, or as otherwise required by Lender, and to maintain such
insurance for the term of the loan.
Application of Proceeds.
Grantor shall
promptly notify Lender of any loss or damage to the Property if the
estimated cost of repair or replacement exceeds $2,000.00. Lender
may make proof of loss if Grantor fails to do so within fifteen
(15) days of the casualty. Whether or not Lender's security is
impaired, Lender may, at Lender's election, receive and retain the
proceeds of any insurance and apply the proceeds to the reduction
of the Indebtedness, payment of any lien affecting the Property, or
the restoration and repair of the Property. If Lender elects to
apply the proceeds to restoration and repair, Grantor shall repair
or replace the damaged or destroyed Improvements in a manner
satisfactory to Lender. Lender shall, upon satisfactory proof of
such expenditure, pay or reimburse Grantor from the proceeds for
the reasonable cost of repair or restoration if Grantor is not in
default under this Mortgage. Any proceeds which have not been
disbursed within 180 days after their receipt and which Lender has
not committed to the repair or restoration of the Property shall be
used first to pay any amount owing to Lender under this Mortgage,
then to pay accrued interest, and the remainder, if any, shall be
applied to the principal balance of the Indebtedness. If Lender
holds any proceeds after payment in full of the Indebtedness, such
proceeds shall be paid to Grantor as Grantor's interests may
appear.
Grantor's Report on Insurance.
Upon
request of Lender, however not more than once a year, Grantor shall
furnish to Lender a report on each existing policy of insurance
showing: (1) the name of the insurer; (2) the risks insured; (3)
the amount of the policy; (4) the property insured, the then
current replacement value of such property, and the manner of
determining that value; and (5) the expiration date of the policy.
Grantor shall, upon request of Lender, have an independent
appraiser satisfactory to Lender determine the cash value
replacement cost of the Property.
LENDER'S EXPENDITURES.
If any action or
proceeding is commenced that would materially affect Lender's
interest in the Property or if Grantor fails to comply with any
provision of this Mortgage or any Related Documents, including but
not limited to Grantor's failure to discharge or pay when due any
amounts Grantor is required to discharge or pay under this Mortgage
or any Related Documents, Lender on Grantor's behalf may (but shall
not be obligated to) take any action that Lender deems appropriate,
including but not limited to discharging or paying all taxes,
liens, security interests, encumbrances and other claims, at any
time levied or placed on the Property and paying all costs for
insuring, maintaining and preserving the Property. All such
expenditures incurred or paid by Lender for such purposes will then
bear interest at the rate charged under the Note from the date
incurred or paid by Lender to the date of repayment by Grantor. All
such expenses will become a part of the Indebtedness and, at
Lender's option, will (A) be payable on demand; (B) be added to the
balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term
of any applicable insurance policy; or (2) the remaining term of
the Note; or (C) be treated as a balloon payment which will be due
and payable at the Note's maturity. The Mortgage also will secure
payment of these amounts. Such right shall be in addition to all
other rights and remedies to which Lender may be entitled upon
Default.
WARRANTY; DEFENSE OF TITLE.
The
following provisions relating to ownership of the Property are a
part of this Mortgage:
Title.
Grantor warrants that: (a)
Grantor holds good and marketable title of record to the Property
in fee simple, free and clear of all liens and encumbrances other
than those set forth in the Real Property description or in any
title insurance policy, title report, or final title opinion issued
in favor of, and accepted by, Lender in connection with this
Mortgage, and (b) Grantor has the full right, power, and authority
to execute and deliver this Mortgage to Lender.
Defense of Title.
Subject to the
exception in the paragraph above, Grantor warrants and will forever
defend the title to the Property against the lawful claims of all
persons. In the event any action or proceeding is commenced that
questions Grantor's title or the interest of Lender under this
Mortgage, Grantor shall defend the action at Grantor's expense.
Grantor may be the nominal party in such proceeding, but Lender
shall be entitled to participate in the proceeding and to be
represented in the proceeding by counsel of Lender's own choice,
and Grantor will deliver, or cause to be delivered, to Lender such
instruments as Lender may request from time to time to permit such
participation.
Compliance With Laws.
Grantor warrants
that the Property and Grantor's use of the Property complies with
all existing applicable laws, ordinances, and regulations of
governmental authorities.
Survival of Representations and
Warranties.
All representations, warranties, and agreements
made by Grantor in this Mortgage shall survive the execution and
delivery of this Mortgage, shall be continuing in nature, and shall
remain in full force and effect until such time as Borrower's
Indebtedness shall be paid in full.
CONDEMNATION.
The following provisions
relating to condemnation proceedings are a part of this
Mortgage:
Proceedings.
If any proceeding in
condemnation is filed, Grantor shall promptly notify Lender in
writing, and Grantor shall promptly take such steps as may be
necessary to defend the action and obtain the award. Grantor may be
the nominal party in such proceeding, but Lender shall be entitled
to participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Grantor will deliver
or cause to be delivered to Lender such instruments and
documentation as may be requested by Lender from time to time to
permit such participation.
Application of Net Proceeds.
If all or
any part of the Property is condemned by eminent domain proceedings
or by any proceeding or purchase in lieu of condemnation, Lender
may at its election require that all or any portion of the net
proceeds of the award be applied to the Indebtedness or the repair
or restoration of the Property. The net proceeds of the award shall
mean the award after payment of all reasonable costs, expenses, and
attorneys' fees incurred by Lender in connection with the
condemnation.
IMPOSITION OF TAXES, FEES AND CHARGES BY
GOVERNMENTAL AUTHORITIES.
The following provisions relating
to governmental taxes, fees and charges are a part of this
Mortgage:
Current Taxes, Fees and Charges.
Upon
request by Lender, Grantor shall execute such documents in addition
to this Mortgage and take whatever other action is requested by
Lender to perfect and continue Lender's lien on the Real Property.
Grantor shall reimburse Lender for all taxes, as described below,
together with all expenses incurred in recording, perfecting or
continuing this Mortgage, including without limitation all taxes,
fees, documentary stamps, and other charges for recording or
registering this Mortgage.
Taxes.
The following shall constitute
taxes to which this section applies: (1) a specific tax upon this
type of Mortgage or upon all or any part of the Indebtedness
secured by this Mortgage; (2) a specific tax on Borrower which
Borrower is authorized or required to deduct from payments on the
Indebtedness secured by this type of Mortgage; (3) a tax on this
type of Mortgage chargeable against the Lender or the holder of the
Note; and (4) a specific tax on all or any portion of the
Indebtedness or on payments of principal and interest made by
Borrower.
Subsequent Taxes.
If any tax to which
this section applies is enacted subsequent to the date of this
Mortgage, this event shall have the same effect as an Event of
Default, and Lender may exercise any or all of its available
remedies for an Event of Default as provided below unless Grantor
either (1) pays the tax before it becomes delinquent, or (2)
contests the tax as provided above in the Taxes and Liens section
and deposits with Lender cash or a sufficient corporate surety bond
or other security satisfactory to Lender.
SECURITY AGREEMENT; FINANCING
STATEMENTS.
The following provisions relating to this
Mortgage as a security agreement are a part of this
Mortgage:
Security Agreement.
This instrument
shall constitute a Security Agreement to the extent any of the
Property constitutes fixtures, and Lender shall have all of the
rights of a secured party under the Uniform Commercial Code as
amended from time to time.
Security Interest.
Upon request by
Lender, Grantor shall take whatever action is requested by Lender
to perfect and continue Lender's security interest in the Rents and
Personal Property. In addition to recording this Mortgage in the
real property records, Lender may, at any time and without further
authorization from Grantor, file executed counterparts, copies or
reproductions of this Mortgage as a financing statement. Grantor
shall reimburse Lender for all expenses incurred in perfecting or
continuing this security interest. Upon default, Grantor shall not
remove, sever or detach the Personal Property from the Property.
Upon default, Grantor shall assemble any Personal Property not
affixed to the Property in a manner and at a place reasonably
convenient to Grantor and Lender and make it available to Lender
within three (3) days after receipt of written demand from Lender
to the extent permitted by applicable law.
Addresses.
The mailing addresses of
Grantor (debtor) and Lender (secured party) from which information
concerning the security interest granted by this Mortgage may be
obtained (each as required by the Uniform Commercial Code) are as
stated on the first page of this Mortgage.
FURTHER ASSURANCES.
The following
provisions relating to further assurances and attorney-in-fact are
a part of this Mortgage:
Further Assurances.
At any time, and
from time to time, upon request of Lender, Grantor will make,
execute and deliver, or will cause to be made, executed or
delivered, to Lender or to Lender's designee, and when requested by
Lender, cause to be filed, recorded, refiled, or rerecorded, as the
case may be, at such times and in such offices and places as Lender
may deem appropriate, any and all such mortgages, deeds of trust,
security deeds, security agreements, financing statements,
continuation statements, instruments of further assurance,
certificates, and other documents as may, in the sole opinion of
Lender, be necessary or desirable in order to effectuate, complete,
perfect, continue, or preserve (1) Borrower's and Grantor's
obligations under the Note, this Mortgage, and the Related
Documents, and (2) the liens and security interests created by this
Mortgage as first and prior liens on the Property, whether now
owned or hereafter acquired by Grantor. Unless prohibited by law or
Lender agrees to the contrary in writing, Grantor shall reimburse
Lender for all costs and expenses incurred in connection with the
matters referred to in this paragraph.
FULL PERFORMANCE.
If Borrower and
Grantor pay all the Indebtedness, including without limitation all
future advances, when due, and Grantor otherwise performs all the
obligations imposed upon Grantor under this Mortgage, Lender shall
execute and deliver to Grantor a suitable satisfaction of this
Mortgage and suitable statements of termination of any financing
statement on file evidencing Lender's security interest in the
Rents and the Personal Property. Grantor will pay, if permitted by
applicable law, any reasonable termination fee as determined by
Lender from time to time.
EVENTS OF DEFAULT.
Each of the
following, at Lender's option, shall constitute an Event of Default
under this Mortgage:
Payment Default.
Borrower fails to make
any payment when due under the Indebtedness.
Default on Other Payments.
Failure of
Grantor within the time required by this Mortgage to make any
payment for taxes or insurance, or any other payment necessary to
prevent filing of or to effect discharge of any lien.
Other Defaults.
Borrower or Grantor
fails to comply with or to perform any other term, obligation,
covenant or condition contained in this Mortgage or in any of the
Related Documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement
between Lender and Borrower or Grantor.
False Statements.
Any warranty,
representation or statement made or furnished to Lender by Borrower
or Grantor or on Borrower's or Grantor's behalf under this Mortgage
or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes
false or misleading at any time thereafter.
Defective Collateralization.
This
Mortgage or any of the Related Documents ceases to be in full force
and effect (including failure of any collateral document to create
a valid and perfected security interest or lien) at any time and
for any reason.
Insolvency.
The dissolution or
termination of Borrower's or Grantor's existence as a going
business, the insolvency of Borrower or Grantor, the appointment of
a receiver for any part of Borrower's or Grantor's property, any
assignment for the benefit of creditors, any type of creditor
workout, or the commencement of any proceeding under any bankruptcy
or insolvency laws by or against Borrower or Grantor.
Creditor or Forfeiture Proceedings.
Commencement of foreclosure or forfeiture proceedings, whether by
judicial proceeding, self-help, repossession or any other method,
by any creditor of Borrower or Grantor or by any governmental
agency against any property securing the Indebtedness. This
includes a garnishment of any of Borrower's or Grantor's accounts,
including deposit accounts, with Lender. However, this Event of
Default shall not apply if there is a good faith dispute by
Borrower or Grantor as to the validity or reasonableness of the
claim which is the basis of the creditor or forfeiture proceeding
and if Borrower or Grantor gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies
or a surety bond for the creditor or forfeiture proceeding, in an
amount determined by Lender, in its sole discretion, as being an
adequate reserve or bond for the dispute.
Breach of Other Agreement.
Any breach by
Borrower or Grantor under the terms of any other agreement between
Borrower or Grantor and Lender that is not remedied within any
grace period provided therein, including without limitation any
agreement concerning any indebtedness or other obligation of
Borrower or Grantor to Lender, whether existing now or
later.
Events Affecting Guarantor.
Any of the
preceding events occurs with respect to any guarantor, endorser,
surety, or accommodation party of any of the Indebtedness or any
guarantor, endorser, surety, or accommodation party dies or becomes
incompetent, or revokes or disputes the validity of, or liability
under, any Guaranty of the Indebtedness.
Adverse Change.
A material adverse
change occurs in Grantor's financial condition.
RIGHTS AND REMEDIES ON DEFAULT.
Upon the
occurrence of an Event of Default and at any time thereafter,
Lender, at Lender's option, may exercise any one or more of the
following rights and remedies, in addition to any other rights or
remedies provided by law, provided that any default in payment,
Lender shall give Grantor notice of default and shall not exercise
any remedies, unless the default in payment remains for 10 days
following mailing of such notice.
Accelerate Indebtedness.
Lender shall
have the right at its option without notice to Borrower or Grantor
to declare the entire Indebtedness immediately due and payable,
including any prepayment penalty that Borrower would be required to
pay.
UCC Remedies.
With respect to all or any
part of the Personal Property, Lender shall have all the rights and
remedies of a secured party under the Uniform Commercial
Code.
Collect Rents.
Grantor shall have the
right, prior to default or abandonment of the Property, to collect
and retain the Rents as they become due and payable. The assignment
of Rents contained in this Mortgage shall be effective until the
payment of all Indebtedness secured by this Mortgage, or in the
event of foreclosure, until the period of redemption expires.
Regardless of the extinguishment of the Indebtedness by a
foreclosure sale, this benefit shall continue for the benefit of
the purchaser at the foreclosure sale.
Appoint Receiver.
Lender shall have the
right to have a receiver appointed to take possession of all or any
part of the Property, with the power to protect and preserve the
Property, to operate the Property preceding foreclosure or sale,
and to collect the Rents from the Property and apply the proceeds,
over and above the cost of the receivership, against the
Indebtedness. The receiver may serve without bond if permitted by
law. Lender's right to the appointment of a receiver shall exist
whether or not the apparent value of the Property exceeds the
Indebtedness by a substantial amount. Employment by Lender shall
not disqualify a person from serving as a receiver.
Judicial Foreclosure.
Lender may obtain
a judicial decree foreclosing Grantor's interest in all or any part
of the Property.
Nonjudicial Sale.
If permitted by
applicable law, Lender may foreclose Grantor's interest in all or
in any part of the Personal Property or the Real Property by
non-judicial sale.
Deficiency Judgment.
If permitted by
applicable law, Lender may obtain a judgment for any deficiency
remaining in the Indebtedness due to Lender after application of
all amounts received from the exercise of the rights provided in
this section.
Redemption.
THE PARTIES AGREE THAT THE PROVISIONS OF THE
180-DAY REDEMPTION MORTGAGE ACT GOVERN THIS MORTGAGE. THIS SHALL
CONSTITUTE AND AUTHORIZE A POWER OF SALE UNDER THE PROVISIONS OF
SUCH ACT.
Grantor agrees that, in the event of a foreclosure
of this Mortgage by action, the holder of the certificate of sale
conducted as a result of the foreclosure may apply to the
appropriate court for a reduction of the redemption period if
Grantor has abandoned the Property. Grantor agrees that if, after
notice to the parties as the court may direct, the court finds that
the Property has been abandoned, then the redemption period may be
reduced to a period of not less than sixty (60) days from the date
of recording of the certificate of sale issued as a result of the
foreclosure of this Mortgage.
Tenancy at Sufferance.
If Grantor
remains in possession of the Property after the Property is sold as
provided above or Lender otherwise becomes entitled to possession
of the Property upon default of Borrower or Grantor, Grantor shall
become a tenant at sufferance of Lender or the purchaser of the
Property and shall, at Lender's option, either (1) pay a reasonable
rental for the use of the Property, or (2) vacate the Property
immediately upon the demand of Lender.
Other Remedies.
Lender shall have all
other rights and remedies provided in this Mortgage or the Note or
available at law or in equity.
Sale of the Property.
To the extent
permitted by applicable law, Borrower and Grantor hereby waive any
and all right to have the Property marshalled. In exercising its
rights and remedies, Lender shall be free to sell all or any part
of the Property together or separately, in one sale or by separate
sales. Lender shall be entitled to bid at any public sale on all or
any portion of the Property.
Notice of Sale.
Lender shall give
Grantor reasonable notice of the time and place of any public sale
of the Personal Property or of the time after which any private
sale or other intended disposition of the Personal Property is to
be made. Reasonable notice shall mean notice given at least ten
(10) days before the time of the sale or disposition. Any sale of
the Personal Property may be made in conjunction with any sale of
the Real Property.
Election of Remedies.
Election by Lender
to pursue any remedy shall not exclude pursuit of any other remedy,
and an election to make expenditures or to take action to perform
an obligation of Grantor under this Mortgage, after Grantor's
failure to perform, shall not affect Lender's right to declare a
default and exercise its remedies. Nothing under this Mortgage or
otherwise shall be construed so as to limit or restrict the rights
and remedies available to Lender following an Event of Default, or
in any way to limit or restrict the rights and ability of Lender to
proceed directly against Grantor and/or Borrower and/or against any
other co-maker, guarantor, surety or endorser and/or to proceed
against any other collateral directly or indirectly securing the
Indebtedness.
Attorneys' Fees; Expenses.
If Lender
institutes any suit or action to enforce any of the terms of this
Mortgage, Lender shall be entitled to recover such sum as the court
may adjudge reasonable as attorneys' fees at trial and upon any
appeal. Whether or not any court action is involved, and to the
extent not prohibited by law, all reasonable expenses Lender incurs
that in Lender's opinion are necessary at any time for the
protection of its interest or the enforcement of its rights shall
become a part of the Indebtedness payable on demand and shall bear
interest at the Note rate from the date of the expenditure until
repaid. Expenses covered by this paragraph include, without
limitation, however subject to any limits under applicable law,
Lender's attorneys' fees and Lender's legal expenses, whether or
not there is a lawsuit, including attorneys' fees and expenses for
bankruptcy proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated
post-judgment collection services, the cost of searching records,
obtaining title reports (including foreclosure reports), surveyors'
reports, and appraisal fees and title insurance, to the extent
permitted by applicable law. Grantor also will pay any court costs,
in addition to all other sums provided by law.
NOTICES.
Any notice required to be given
under this Mortgage, including without limitation any notice of
default and any notice of sale shall be given in writing, and shall
be effective when actually delivered, when actually received by
telefacsimile (unless otherwise required by law), when deposited
with a nationally recognized overnight courier, or, if mailed, when
deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown
near the beginning of this Mortgage. All copies of notices of
foreclosure from the holder of any lien which has priority over
this Mortgage shall be sent to Lender's address, as shown near the
beginning of this Mortgage. Any party may change its address for
notices under this Mortgage by giving formal written notice to the
other parties, specifying that the purpose of the notice is to
change the party's address. For notice purposes, Grantor agrees to
keep Lender informed at all times of Grantor's current address.
Unless otherwise provided or required by law, if there is more than
one Grantor, any notice given by Lender to any Grantor is deemed to
be notice given to all Grantors.
MISCELLANEOUS PROVISIONS.
The following
miscellaneous provisions are a part of this Mortgage:
Amendments.
This Mortgage, together with
any Related Documents, constitutes the entire understanding and
agreement of the parties as to the matters set forth in this
Mortgage. No alteration of or amendment to this Mortgage shall be
effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or
amendment.
Annual Reports.
If the Property is used
for purposes other than Grantor's residence, Grantor shall furnish
to Lender, upon request, a certified statement of net operating
income received from the Property during Grantor's previous fiscal
year in such form and detail as Lender shall require. "Net
operating income" shall mean all cash receipts from the Property
less all cash expenditures made in connection with the operation of
the Property.
Caption Headings.
Caption headings in
this Mortgage are for convenience purposes only and are not to be
used to interpret or define the provisions of this
Mortgage.
Governing
Law. This Mortgage will be governed by federal law applicable to
Lender and, to the extent not preempted by federal law, the laws of
the State of South Dakota without regard to its conflicts of law
provisions. This Mortgage has been accepted by Lender in the State
of South Dakota.
Choice of Venue.
If there is a lawsuit,
Grantor agrees upon Lender's request to submit to the jurisdiction
of the courts of Pennington County, State of South
Dakota.
Joint and Several Liability.
All
obligations of Borrower and Grantor under this Mortgage shall be
joint and several, and all references to Grantor shall mean each
and every Grantor, and all references to Borrower shall mean each
and every Borrower. This means that each Grantor signing below is
responsible for all obligations in this Mortgage. Where any one or
more of the parties is a corporation, partnership, limited
liability company or similar entity, it is not necessary for Lender
to inquire into the powers of any of the officers, directors,
partners, members, or other agents acting or purporting to act on
the entity's behalf, and any obligations made or created in
reliance upon the professed exercise of such powers shall be
guaranteed under this Mortgage.
No Waiver by Lender.
Lender shall not be
deemed to have waived any rights under this Mortgage unless such
waiver is given in writing and signed by Lender. No delay or
omission on the part of Lender in exercising any right shall
operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Mortgage shall not prejudice or
constitute a waiver of Lender's right otherwise to demand strict
compliance with that provision or any other provision of this
Mortgage. No prior waiver by Lender, nor any course of dealing
between Lender and Grantor, shall constitute a waiver of any of
Lender's rights or of any of Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Mortgage, the granting of such consent by Lender in any instance
shall not constitute continuing consent to subsequent instances
where such consent is required and in all cases such consent may be
granted or withheld in the sole discretion of Lender.
Severability.
If a court of competent
jurisdiction finds any provision of this Mortgage to be illegal,
invalid, or unenforceable as to any circumstance, that finding
shall not make the offending provision illegal, invalid, or
unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes
legal, valid and enforceable. If the offending provision cannot be
so modified, it shall be considered deleted from this Mortgage.
Unless otherwise required by law, the illegality, invalidity, or
unenforceability of any provision of this Mortgage shall not affect
the legality, validity or enforceability of any other provision of
this Mortgage.
Merger.
There shall be no merger of the
interest or estate created by this Mortgage with any other interest
or estate in the Property at any time held by or for the benefit of
Lender in any capacity, without the written consent of
Lender.
Successors and Assigns.
Subject to any
limitations stated in this Mortgage on transfer of Grantor's
interest, this Mortgage shall be binding upon and inure to the
benefit of the parties, their successors and assigns. If ownership
of the Property becomes vested in a person other than Grantor,
Lender, without notice to Grantor, may deal with Grantor's
successors with reference to this Mortgage and the Indebtedness by
way of forbearance or extension without releasing Grantor from the
obligations of this Mortgage or liability under the
Indebtedness.
Time is of the Essence.
Time is of the
essence in the performance of this Mortgage.
Waiver of Homestead Exemption.
Grantor
hereby releases and waives all rights and benefits of the homestead
exemption laws of the State of South Dakota as to all Indebtedness
secured by this Mortgage.
DEFINITIONS.
The following capitalized
words and terms shall have the following meanings when used in this
Mortgage. Unless specifically stated to the contrary, all
references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular
shall include the plural, and the plural shall include the
singular, as the context may require. Words and terms not otherwise
defined in this Mortgage shall have the meanings attributed to such
terms in the Uniform Commercial Code:
Borrower.
The word "Borrower" means
National American University Holdings, Inc.; and DLORAH, Inc. and
all their successors and assigns.
Default.
The word "Default" means the
Default set forth in this Mortgage in the section titled
"Default".
Environmental Laws.
The words
"Environmental Laws" mean any and all state, federal and local
statutes, regulations and ordinances relating to the protection of
human health or the environment, including without limitation the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.
("CERCLA"), the Superfund Amendments and Reauthorization Act of
1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or
other applicable state or federal laws, rules, or regulations
adopted pursuant thereto.
Event of Default.
The words "Event of
Default" mean any of the events of default set forth in this
Mortgage in the events of default section of this
Mortgage.
Grantor.
The word "Grantor" means
DLORAH, Inc.
Guaranty.
The word "Guaranty" means the
guaranty from guarantor, endorser, surety, or accommodation party
to Lender, including without limitation a guaranty of all or part
of the Note.
Hazardous Substances.
The words
"Hazardous Substances" mean materials that, because of their
quantity, concentration or physical, chemical or infectious
characteristics, may cause or pose a present or potential hazard to
human health or the environment when improperly used, treated,
stored, disposed of, generated, manufactured, transported or
otherwise handled. The words "Hazardous Substances" are used in
their very broadest sense and include without limitation any and
all hazardous or toxic substances, materials or waste as defined by
or listed under the Environmental Laws. The term "Hazardous
Substances" also includes, without limitation, petroleum and
petroleum by-products or any fraction thereof and
asbestos.
Improvements.
The word "Improvements"
means all existing and future improvements, buildings, structures,
mobile homes affixed on the Real Property, facilities, additions,
replacements and other construction on the Real
Property.
Indebtedness.
The word "Indebtedness"
means all principal, interest, and other amounts, costs and
expenses payable under the Note or Related Documents, together with
all renewals of, extensions of, modifications of, consolidations of
and substitutions for the Note or Related Documents and any amounts
expended or advanced by Lender to discharge Grantor's obligations
or expenses incurred by Lender to enforce Grantor's obligations
under this Mortgage, together with interest on such amounts as
provided in this Mortgage. Specifically, without limitation,
Indebtedness includes the future advances set forth in the Future
Advances provision of this Mortgage, together with all interest
thereon.
Lender.
The word "Lender" means Black
Hills Community Bank, N.A., its successors and
assigns.
Mortgage.
The word "Mortgage" means this
Mortgage between Grantor and Lender.
Note.
The word "Note" means the
promissory note dated May 17, 2018,
in the original principal amount of
$8,000,000.00
from Borrower to Lender, together with all
renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the promissory note or
agreement.
Personal Property.
The words "Personal
Property" mean all equipment, tools, and articles of personal
property, not affixed to the Real Property, used in connection with
the business conducted at or on the premises mortgaged herein,
wherever located..
Property.
The word "Property" means
collectively the Real Property and the Personal
Property.
Real Property.
The words "Real Property"
mean the real property, interests and rights, as further described
in this Mortgage.
Related Documents.
The words "Related
Documents" mean all promissory notes, credit agreements, loan
agreements, environmental agreements, guaranties, security
agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents,
whether now or hereafter existing, executed in connection with the
Indebtedness.
Rents.
The word "Rents" means all
present and future rents, revenues, income, issues, royalties,
profits, and other benefits derived from the Property.
GRANTOR
ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND
GRANTOR AGREES TO ITS TERMS.
GRANTOR:
DLORAH,
INC.
Dr.
Ronald L. Shape, President & CEO of DLORAH, Inc.
_________________________________________________________________
CORPORATE
ACKNOWLEDGMENT
|
STATE OF SOUTH DAKOTE
|
)
) SS
|
On this
17
th
day of
May
,
20
18
, before me,
the undersigned Notary Public, personally appeared
Dr. Ronald L. Shape, President & CEO of
DLORAH, Inc.,
and known to me to be an authorized agent of
the corporation that executed the Mortgage and acknowledged the
Mortgage to be the free and voluntary act and deed of the
corporation, by authority of its Bylaws or by resolution of its
board of directors, for the uses and purposes therein mentioned,
and on oath stated that he or she is authorized to execute this
Mortgage and in fact executed the Mortgage on behalf of the
corporation.
|
Notary Public in and for the State of
South Dakota
|
My commission expires February 3, 2023
|
______________________________________________________________
______________________________________________________________
LaserPro, Ver.
17.4.21.005 Copr. D+H USA Corporation 1997, 2018. All Rights
Reserved.
PROMISSORY
NOTE
|
Principal
|
Loan Date
|
Maturity
|
Loan No
|
Call / Coll
|
Account
|
Officer
|
Initials
|
|
$8,000,000.00
|
05-17-2018
|
05-17-2023
|
406592
|
4
/ 860
|
RLD
|
|
References in the
boxes above are for Lender's use only and do not limit the
applicability of this document to any particular loan or
item.
Any
item above containing "***" has been omitted due to text length
limitations.
|
Borrower:
|
National
American University Holdings, Inc.
DLORAH,
Inc.
5301
Mount Rushmore Road
Rapid
City, SD 57701
|
Lender:
|
Black Hills Community Bank, N.A.
Rapid City
840 Mount Rushmore Road
Rapid City, SD 57701
|
|
Principal
Amount: $8,000,000.00
|
Date of Note: May 17, 2018
|
PROMISE
TO PAY. National American University Holdings, Inc.; and DLORAH,
Inc. ("Borrower") jointly and severally promise to pay to Black
Hills Community Bank, N.A. ("Lender"), or order, in lawful money of
the United States of America, the principal amount of Eight Million
& 00/100 Dollars ($8,000,000.00), together with interest on the
unpaid principal balance from May 17, 2018, until paid in
full.
PAYMENT.
Borrower will pay this loan in accordance with the following
payment schedule, which calculates interest on the unpaid principal
balances as described in the "INTEREST CALCULATION METHOD"
paragraph using the interest rates described in this paragraph: 59
monthly consecutive interest payments, beginning June 17, 2018,
with interest calculated on the unpaid principal balances using an
interest rate of 4.000%; 4 annual consecutive principal payments of
$800,000.00 each, beginning May 17, 2019, during which interest
continues to accrue on the unpaid principal balances using an
interest rate of 4.000%; and one principal and interest payment of
$4,816,000.00 on May 17, 2023, with interest calculated on the
unpaid principal balances using an interest rate of 4.000%. This
estimated final payment is based on the assumption that all
payments will be made exactly as scheduled; the actual final
payment will be for all principal and accrued interest not yet
paid, together with any other unpaid amounts under this Note.
Notwithstanding the foregoing, the rate of interest accrual
described for the principal only payment stream applies only to the
extent that no other interest rate for any other payment stream
applies. Unless otherwise agreed or required by applicable law,
payments will be applied first to any accrued unpaid interest; then
to principal; then to any late charges; and then to any unpaid
collection costs. Borrower will pay Lender at Lender's address
shown above or at such other place as Lender may designate in
writing. All payments must be made in U.S. dollars and must be
received by Lender consistent with any written payment instructions
provided by Lender. If a payment is made consistent with Lender's
payment instructions but received after 4:00 PM Mountain Time,
Lender will credit Borrower's payment on the next business
day.
INTEREST
CALCULATION METHOD. Interest on this Note is computed on a 365/360
basis; that is, by applying the ratio of the interest rate over a
year of 360 days, multiplied by the outstanding principal balance,
multiplied by the actual number of days the principal balance is
outstanding. All interest payable under this Note is computed using
this method.
PREPAYMENT PENALTY; MINIMUM INTEREST
CHARGE.
Borrower agrees that all loan fees and other prepaid
finance charges are earned fully as of the date of the loan and
will not be subject to refund upon early payment (whether voluntary
or as a result of default), except as otherwise required by law. In
any event, even upon full prepayment of this Note, Borrower
understands that Lender is entitled to a
minimum interest charge of $75.00
.
Upon prepayment of this Note,
Lender is entitled to the following prepayment penalty: 1% if Note
is refinanced with proceeds derived from another lender.
Other than Borrower's obligation to pay any minimum interest charge
and prepayment penalty, Borrower may pay all or a portion of the
amount owed earlier than it is due. Early payments will not, unless
agreed to by Lender in writing, relieve Borrower of Borrower's
obligation to continue to make payments under the payment schedule.
Rather, early payments will reduce the principal balance due and
may result in Borrower's making fewer payments. Borrower agrees not
to send Lender payments marked "paid in full", "without recourse",
or similar language. If Borrower sends such a payment, Lender may
accept it without losing any of Lender's rights under this Note,
and Borrower will remain obligated to pay any further amount owed
to Lender.
All written
communications concerning disputed amounts, including any check or
other payment instrument that indicates that the payment
constitutes "payment in full" of the amount owed or that is
tendered with other conditions or limitations or as full
satisfaction of a disputed amount must be mailed or delivered to:
Black Hills Community Bank, N.A., 840 Mt Rushmore Road Rapid City,
SD 57701.
LATE CHARGE.
If a payment is 10 days or
more late, Borrower will be charged
5.000% of the regularly scheduled payment or
$15.00, whichever is greater.
INTEREST AFTER DEFAULT.
Upon default, at
Lender's option, and if permitted by applicable law, Lender may add
any unpaid accrued interest to principal and such sum will bear
interest therefrom until paid at the rate provided in this Note
(including any increased rate). Upon default, the interest rate on
this Note shall be increased by adding an additional 5.000
percentage point margin ("Default Rate Margin"). The Default Rate
Margin shall also apply to each succeeding interest rate change
that would have applied had there been no default. After maturity,
or after this Note would have matured had there been no default,
the Default Rate Margin will continue to apply to the final
interest rate described in this Note. However, in no event will the
interest rate exceed the maximum interest rate limitations under
applicable law.
DEFAULT.
Each of the following shall
constitute an event of default ("Event of Default") under this
Note:
Payment Default.
Borrower fails to make
any payment when due under this Note.
Other Defaults.
Borrower fails to comply
with or to perform any other term, obligation, covenant or
condition contained in this Note or in any of the related documents
or to comply with or to perform any term, obligation, covenant or
condition contained in any other agreement between Lender and
Borrower.
False Statements.
Any warranty,
representation or statement made or furnished to Lender by Borrower
or on Borrower's behalf under this Note or the related documents is
false or misleading in any material respect, either now or at the
time made or furnished or becomes false or misleading at any time
thereafter.
Insolvency.
The dissolution or
termination of Borrower's existence as a going business, the
insolvency of Borrower, the appointment of a receiver for any part
of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against
Borrower.
Creditor or Forfeiture Proceedings.
Commencement of foreclosure or forfeiture proceedings, whether by
judicial proceeding, self-help, repossession or any other method,
by any creditor of Borrower or by any governmental agency against
any collateral securing the loan. This includes a garnishment of
any of Borrower's accounts, including deposit accounts, with
Lender. However, this Event of Default shall not apply if there is
a good faith dispute by Borrower as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower gives Lender written notice
of the creditor or forfeiture proceeding and deposits with Lender
monies or a surety bond for the creditor or forfeiture proceeding,
in an amount determined by Lender, in its sole discretion, as being
an adequate reserve or bond for the dispute.
Events Affecting Guarantor.
Any of the
preceding events occurs with respect to any guarantor, endorser,
surety, or accommodation party of any of the indebtedness or any
guarantor, endorser, surety, or accommodation party dies or becomes
incompetent, or revokes or disputes the validity of, or liability
under, any guaranty of the indebtedness evidenced by this
Note.
Change In Ownership.
Any change in
ownership of twenty-five percent (25%) or more of the common stock
of Borrower.
Adverse Change.
A material adverse
change occurs in Borrower's financial condition, or Lender believes
the prospect of payment or performance of this Note is
impaired.
LENDER'S RIGHTS.
Upon default, Lender
may declare the entire unpaid principal balance under this Note and
all accrued unpaid interest immediately due if payment remains
unpaid for 10 days after notice of default.
ATTORNEYS' FEES; EXPENSES.
Lender may
hire or pay someone else to help collect this Note if Borrower does
not pay. Borrower will pay Lender that amount. This includes,
subject to any limits under applicable law, Lender's attorneys'
fees and Lender's legal expenses, whether or not there is a
lawsuit, including attorneys' fees, expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic
stay or injunction), and appeals. If not prohibited by applicable
law, Borrower also will pay any court costs, in addition to all
other sums provided by law.
GOVERNING
LAW. This Note will be governed by federal law applicable to Lender
and, to the extent not preempted by federal law, the laws of the
State of South Dakota without regard to its conflicts of law
provisions. This Note has been accepted by Lender in the State of
South Dakota.
CHOICE OF VENUE.
If there is a lawsuit,
Borrower agrees upon Lender's request to submit to the jurisdiction
of the courts of Pennington County, State of South
Dakota.
DISHONORED ITEM FEE.
Borrower will pay a
fee to Lender of $5.00 if Borrower makes a payment on Borrower's
loan and the check or preauthorized charge with which Borrower pays
is later dishonored.
RIGHT OF SETOFF.
To the extent permitted
by applicable law, Lender reserves a right of setoff in all
Borrower's accounts with Lender (whether checking, savings, or some
other account). This includes all accounts Borrower holds jointly
with someone else and all accounts Borrower may open in the future.
However, this does not include any IRA or Keogh accounts, or any
trust accounts for which setoff would be prohibited by law.
Borrower authorizes Lender, to the extent permitted by applicable
law, to charge or setoff all sums owing on the indebtedness against
any and all such accounts.
COLLATERAL.
Borrower acknowledges this
Note is secured by the following collateral described in the
security instruments listed herein:
(A) a
Mortgage dated May 17, 2018, to Lender on real property located in
Pennington County, State of South Dakota.
(B) an
Assignment of All Rents to Lender on real property located in
Pennington County, State of South Dakota.
(C)
certificates of deposit described in an Assignment of Deposit
Account dated May 17, 2018.
SUCCESSOR INTERESTS.
The terms of this
Note shall be binding upon Borrower, and upon Borrower's heirs,
personal representatives, successors and assigns, and shall inure
to the benefit of Lender and its successors and
assigns.
NOTIFY US OF INACCURATE INFORMATION WE REPORT
TO CONSUMER REPORTING AGENCIES.
Borrower may notify Lender
if Lender reports any inaccurate information about Borrower's
account(s) to a consumer reporting agency. Borrower's written
notice describing the specific inaccuracy(ies) should be sent to
Lender at the following address: Black Hills Community Bank, N.A.
840 Mt Rushmore Road Rapid City, SD 57701.
GENERAL PROVISIONS.
If any part of this
Note cannot be enforced, this fact will not affect the rest of the
Note. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Each Borrower
understands and agrees that, with or without notice to Borrower,
Lender may with respect to any other Borrower (a) make one or more
additional secured or unsecured loans or otherwise extend
additional credit; (b) alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for
payment or other terms of any indebtedness, including increases and
decreases of the rate of interest on the indebtedness; (c)
exchange, enforce, waive, subordinate, fail or decide not to
perfect, and release any security, with or without the substitution
of new collateral; (d) apply such security and direct the order or
manner of sale thereof, including without limitation, any
non-judicial sale permitted by the terms of the controlling
security agreements, as Lender in its discretion may determine; (e)
release, substitute, agree not to sue, or deal with any one or more
of Borrower's sureties, endorsers, or other guarantors on any terms
or in any manner Lender may choose; and (f) determine how, when and
what application of payments and credits shall be made on any other
indebtedness owing by such other Borrower. Borrower and any other
person who signs, guarantees or endorses this Note, to the extent
allowed by law, waive presentment, demand for payment, and notice
of dishonor. Upon any change in the terms of this Note, and unless
otherwise expressly stated in writing, no party who signs this
Note, whether as maker, guarantor, accommodation maker or endorser,
shall be released from liability. All such parties agree that
Lender may renew or extend (repeatedly and for any length of time)
this loan or release any party or guarantor or collateral; or
impair, fail to realize upon or perfect Lender's security interest
in the collateral; and take any other action deemed necessary by
Lender without the consent of or notice to anyone. All such parties
also agree that Lender may modify this loan without the consent of
or notice to anyone other than the party with whom the modification
is made. The obligations under this Note are joint and
several.
PRIOR
TO SIGNING THIS NOTE, EACH BORROWER READ AND UNDERSTOOD ALL THE
PROVISIONS OF THIS NOTE. EACH BORROWER AGREES TO THE TERMS OF THE
NOTE.
BORROWER
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY
NOTE.
BORROWER:
NATIONAL
AMERICAN UNIVERSITY HOLDINGS, INC.
Dr.
Ronald L. Shape, President & CEO of National American
University Holdings, Inc.
DLORAH,
INC.
Dr.
Ronald L. Shape, President & CEO of DLORAH, Inc.
LaserPro, Ver. 17.4.21.005 Copr. D+H USA
Corporation 1997, 2018. All Rights
Reserved.