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HomeMy WebLinkAbout20081201NUM PGS DOC TAX CK# FEES3S-SQPD~~S~ CK#~- CHG ACCT # RET FEES; CASH R.O.D. CK RECD RETURN ~ E (o ~ 1 Parcel 1: I~IIY~I~'~III~~~w~11VlM!IIW~I~~~ ~io ~C~p~P. Sic ~~ NUM ~~` ~ " ~ RD. COMP x ~J~~~B COMPARE --- CADAS --' AO ~ ADAMS COUNTY, NE INST. NO. ~~ '~ U ~' Date 3 - - 08 Time~~ REGISTER OF DEEDS That part of the Southeast Quarter, and the Southwest Quarter of Section 11, Township 7 North, Range 9 West of the 6t~' Principal Meridian, Adams County, Nebraska, excepting railroad right-of--way of the Burlington Northern Railroad Company and that part deeded for highway purposes, being more particularly described as follows: Commencing at the East Quarter corner. of Said Section 11, a''/z inch pipe found; thence westerly on an assumed bearing, N 89°50'32" W, on the Center line of said Section 11, 33.09 feet, to a Pourt of Intersection on the West right-of--way line of Country Road 9-1 West, also being the Point ofBeginning, a'h inch pipe set for property corner; thence southerly S 00°15'49" W, on the said West right-of--way line, 642.45 feet, to a Point of Intersection on the North right-of--way line of the Burlington Northern Railroad, a'/2 inch pipe set for property corner; thence westerly S$6°55'00"W, on the said South right-of-way line, 5251.01 feet, to a Point of Intersection on the East right-of--way line of Pawnee Avenue, a'/z inch pipe set for property conger; thence northerly N 00°08' 17" W, on the said East right-of--way line 939.33 feet, to a Point of Intersection on the Centerline of said Section 11, a''/2 inch pipe set for property corner; thence easterly 5.89°50'32"E, on the Centerline of said Section 11, 5248.65 feet, to the Point of Beginning. Parcel 2: That par of the Southeast Quarter and the Southwest Quarter of Section 11, Township 7 North, Range 9 West of the 6~~' Principal Meridian, Adams County, Nebraska, excepting railroad right-of--way of the Burlington Northern Railroad Company and that part deeded for highway purposes being more particularly described as follows: Commencing at the Southeast corner of said Section 11, a 1'/z inch disk found; thence westerly on an assumed bearing N 89°49'34"W, on the South line of the Southeast Quarter of said Section 11, 222.99 feet; thence northerly N 00°16' S2"E, 59.97 feet, to a Point of Intersection of the North right-of--way line of US Highway #6, also being the Point of Beginning, a''/z inch pipe set for property corner; thence westerly N 89°49'34"W, on the said North right-of--way line, 2425.64 feet, to a Point of Intersection on the East line of the Southwest Quarter of said Section 11, a PK nail set for property corner; thence westerly N 89°48' S 1 "W, on the North right-of--way line of US Highway #6, 2615.12 feet, to a Point of Intersection on the East right-of--way line of Pawnee Avenue, a''/z inch pipe set for property corner; thence northerly N 00°08' 17"W, on the said East right-of--way line, 1441.34 feet, to a Point of Intersection on the South right-of--way line of the Burlington Northern Railroad, a''/z inch pipe set for property corner; thence easterly N 86°55'00"E, on the said South railroad right-of--way line, 4282.66 feet, to a Point of Intersection on the said South railroad right-of--way line, a %2 inch pipe set for property confer; thence southerly S 03°05'00"E, on the said South railroad right-of--way line, 50.00 feet, to a Point of Intersection on the said South railroad right-of--way line, a''/2 inch pipe set for property corner; thence easterly N 86°55'00"E, on the said South railroad right-of--way line, 383.99 feet, to a Point of Intersection on the West line of the most westerly spur line of the Burlington Northern Railroad, a'/z inch pipe set for property conger, also being a point on a curve to the right, having a radius of 766.74 feet, an arc length of 833.74 feet, a central angle of 62°18'09', a chord length of 793.27 feet, and a chord bearing of S 29°08'48"E, to a Point of Intersection on the said West railroad right-of--way spur line, a''/2 inch pipe set for property corner; •~hence southerly S 00616'52"W, on the said West railroad right-of way spur line, 965.47 feet, to the Point ofBeginning. /Of 7 2oa~~~o~. NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. BankofAmerica ~%j MODIFICATION AGREEMENT THE STATE OF NEBRASKA § COUNTY OF ADAMS § The parties to this agreement ("Agreement") dated as of March ~, 2008 (the "Modification Date") are BANK OF AMERICA, N.A. ("Bank"), EQUALIZER MIDWEST, INC., a Nebraska corporation ("Borrower," whether one or more) and each other person who executes this Agreement as provided herein. For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 1. Background. Bank is the holder of the promissory note dated August 30, 2007 (the "Note"), executed by Borrower payable to the order of Bank in the original principal amount of $2,500,000.00, with a stated final maturity date (including all prior renewals or extensions, if any) of July 31, 2008. The Note, as it may have been renewed, extended, amended, or supplemented by orie or more documents, if any, dated before the Modification Date, is referred to as the "Note"; and the Note as modified by this Agreement is referred to as the "Modified Note." The security for payment of the Note includes (without limitation), the Deed of Trust dated August 3 1, 2007, executed by EQUALIZER MIDWEST, INC. as grantors (herein referred to as "Grantor," whether or not the same as Borrower), to Les Seiler, as Trustee, recorded as Instrument Number 20074230 in the records of Adams County, Nebraska. The Deed of Trust is, as it may have been renewed, extended, amended, or supplemented by one or more documents, if any, dated before the Modification Date, is referred to herein as the "Collateral Document," and reference is made to the Collateral Document and the recording thereof for all purposes. The Collateral Document covers the real and personal property (the "Property") therein described, subject to recorded partial releases, if any, executed by Bank or a prior owner of the Note. The security for the payment of the Note includes other obligations specified by Loan Documents as defined in the Loan Agreement dated January 31, 2007. 2. Modif cation; Note Principal Balance; Advance Limit. Borrower, Grantor and Bank agree to make changes, as specified below in this Agreement. The unpaid principal balance of the Note as of the Modification Date was $2,325,866.00. The Note, the Collateral Document, this Agreement, and any other document now or hereafter securing, guaranteeing or executed in connection with the loan MODIFICATION AGREEMENT 1 Rcvised3/2008 114 ModificationAgr-EqualizerMid-332008.doc EQuai.izER MIDWEST, INC. ~vf7 2008~.20i evidenced by the Note, as such documents may have been or may be herein or hereafter renewed, extended, amended or supplemented, are herein together called the "Loan Documents." Bank is entitled to the benefits of the Loan Documents. 3. Amendments to Note. The Note is hereby amended as follows: 3.1 The principal amount of the Promissory Note is increased from Two Million, Five Hundred Thousand and No/100 Dollars ($2,500,000.00) by Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00) to Three Million, Two Hundred Fifty Thousand andNo/100 Dollars ($3,250,000.00). 3.2 Paragraph 4, Line of Credit Feature, is amended in its entirety as follows: "4. Line of Credit Feature. Effective March l ~ , 2008, this Note constitutes a $3,250,000.00 line of credit under which Borrower may, from time to time (and provided that Borrower is not in default under any provision of this Note, any other documents executed in connection with this Note, or any other note or other loan documents now or hereafter executed in connection with any other obligation of Borrower to Lender), borrow (but not repay and thereafter reborrow) funds totaling, in the aggregate, up to such $3,250,000.00 amount. Any and all advances to Borrower under this Note shall occur at the sole discretion of Lender." 3.3 Paragraph 5, Payment Schedule, is amended in its entirety as follows: "5. Payment Schedule. All payments received hereunder shall be applied first to the payment of any expense or charges payable hereunder or under any other loan documents executed in connection with this Note,. then to interest due and payable, with the balance applied to principal, or in such other order as Lender shall determine at its option. The Borrower will pay interest on March 31, 2008, and then on the last day of each month thereafter until payment in full of any principal outstanding under this Note. The Borrower will repay principal in one installment on June 30, 2008 (the "Repayment Period"). In any event, on the last day of the Repayment Period, the Borrower will repay the remaining principal balance plus any interest then due. It is the intention of the Borrower and Lender for Lender to renew and extend the unpaid principal balance of this note on June 30, 2008, to renew and extend the unpaid principal .balance of the November 14, 2005 $1,500,000.00 Promissory Note, and to renew and extend the unpaid principal balance of the June 23, 2003 $1,750,000.00 Promissory Note into one Promissory Note on June 30, 2008, which shall require Borrower to repay the principal balance plus interest in 120 monthly installments of MODIFICATION AGREEMENT 114 ModificationAgr-EqualizerMid-332008.doc Revised 3/2008 EQU.+s.iz>;R MIDWEST, INC. ~o~ 7 principal plus interest. Lender's obligation to renew and extend the three notes is subject to Borrower's full and timely performance under this note and the Loan Agreement dated January 31, 2007, and only if Borrower is not in default under any of its obligations to Lender on June 30, 2008." 4. Amendments to Collateral Document. The Collateral Document is hereby amended as follows: 4.1 Paragraph 1.1, Certain Definitions and Reference Term, is amended in its entirety as follows: "l , l Certain Definitions and Reference Terms. In addition to other terms defined herein, each of the following terms shall have. the meaning assigned to it: "Grantor": EQUALIZER MIDWEST, INC., a Nebraska corporation, acting by and through its duly authorized officer and agent, R. DOUGLAS STEVENS, Chairman. "Lender": BANK OF AMERICA, N.A., a national banking association. "Promissory Note": Promissory Note dated August 31, 2007, as modified March % ~ , 2008, made by EQUALIZER MIDWEST, INC., a Nebraska corporation ("Borrower") payable to the order of Lender in the principal face amount of Three Million, Two Hundred Fifty Thousand Dollars and No Cents ($3,250,000.00), bearing interest as therein provided, containing a provision for the payment of a reasonable additional amount of attorneys' fees and finally maturing on July 30, 2018. "Trustee": LES SEILER, Seiler & Parker, P.C., L.L.O., Attorneys at Law, 726 Eastside Boulevard, Hastings, Nebraska 68901-1288, Bar Association No. 13759 or any successor or substitute appointed and designed as herein provided from time to time acting hereunder." 5. Representations and Warranties. When each of the Borrower and Grantor signs this Amendment, each of the Borrower and Grantor represents and warrants to the Bank that: (a) there is no event which is, or with notice or lapse of time or both would be, a default under the Note or any Loan Document except those events, if any, that have been disclosed in writing to the Bank or waived in writing by the Bank, (b) the representations and warranties in the Loan Documents are true as of the Modification Date as if made on the date of the Modification Date, (c) this Agreement does not conflict with any law, agreement, or obligation by which the Borrower or Grantor is bound, and (d) if the Borrower or Grantor is a business entity or a trust, this Agreement is within such entity's powers, has been duly authorized, and does not conflict with any of the such entity's organizational papers. 6. Costs and Expenses. To the extent not prohibited by applicable law, Borrower shall in each instance within five (5) days after request by Bank pay, or reimburse Bank for, all costs and expenses reasonably paid or incurred by Bank from time to time to one or rrlore third parties in connection with (i) MODIFICATION AGREEMENT e) Reviscd 3/2008 114 ModificationAgr-EqualizerMid-332008.doc EQuALiZExMIDWEST, INC. ,c~, of 7 2U48120J. the preparation and acceptance of this Agreement, (ii) the evaluation of, and protection of Bank's rights with respect to, the Property; and (iii) the creation, perfection or realization upon the Liens or the exercise of Bank's rights and remedies under the Loan Documents, such costs and expenses to include, without limitation, attorney's fees, premiums for title policy endorsements or for title policy(ies) if applicable, appraisal fees, fees and expenses of environmental inspections and other professional services and recording fees. Without limitation of the foregoing and to the extent not prohibited by applicable law, Bank may at its option order and obtain at Borrower's expense once in each calendar year an appraisal of the Property or any part thereof by a third party appraiser selected by Bank. 7. Obligors; Bindin~E(fect; Construction. The Modified Note is the joint and several obligation of each party named Borrower herein.. Borrower is sometimes called an "Obligor" herein. If Grantor(s) is/are other than Borrower and are signatories hereto, such party or parties are also herein called "Obligors," and each such party consents to this Agreement and ratifies and confirms its obligations under the Loan Documents, which obligations are not amended hereby unless specifically enumerated herein, Bank not being required, before enforcing the liability of any Obligor, to assert or exhaust its remedies against any other Obligor or against the Property or any other security. All provisions of the Note and the other Loan Documents remain in full force and effect as therein written, except as expressly modified by this Agreement. To the extent of any conflict between the Note (or any earlier modification of it) and this Agreement, this Agreement shall control. This Agreement binds and benefits the parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors and assigns (provided, that no party but Bank may assign its rights hereunder without Bank's prior written consent). The date or dates of the acknowledgments indicate the date(s) of execution of this Agreement but execution is as of the Modification Date, and for purposes of identification and reference the date of this Agreement is the Modification Date. This Agreement may be executed in several identical counterparts all of which shall constitute one and the same instrument. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS MODIFIED HEREBY, SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEBRASKA AND APPLICABLE UNITED STATES FEDERAL LAW. 8. Liens. By this Agreement, all liens, security interests, assignments, superior titles, rights, remedies, powers, equities and priorities securing the Note (collectively, the "Liens"), including but not limited to those under the Collateral Document, are hereby ratified and confirmed as valid, subsisting and continuing to secure the Modified Note. Nothing in this Agreement shall in any manner diminish, impair or extinguish any of the Liens or the Loan Documents or the debt evidenced by the Note or be construed as a novation in any respect. The Liens are not waived. 9. Certain Warranties and Covenants. Borrower warrants and represents to Bank that the indebtedness evidenced by the Modified Note is subject to no credit, charge, claim, or right of offset or deduction of any kind whatsoever; and, to the extent not prohibited by applicable law, Obligors release and discharge Bank and its parent corporations, subsidiaries and affiliates, and all past, present and future trustees under the Collateral Document, and its and their predecessors, successors, assigns, officers, managers, directors, shareholders, employees, agents, attorneys, heirs, and representatives, jointly and severally from any and all claims and causes of action, whether known or unknown and whether now existing or hereafter arising, that have at any time been owned or claimed, or that are hereafter owned or claimed, by Obligors or any of them (other than claims for funds, if any, now on deposit with Bank), and that arise out of any one or more circumstances or events that occurred prior to the time of execution of MODIFICATION AGREEMENT 4 Rcvised 3/2008 114 ModilicationAgr-EqualizerMid-332008.doc EQU,u,izea MIDwESr, INC. sof ~ ~oa8~~o~. this Agreement. The Loan Documents and the obligations thereunder are ratified and acknowledged as valid, subsisting and enforceable, subject to no offsets, claims or defenses. The execution of this Agreement by Bank is not intended nor shall it be construed as an actual or implied waiver o£ (a) any default under any Loan Document; (b) any requirement under any Loan Document except to the extent of the amendments specified in this Agreement; (c) any right to demand payment or accelerate maturity contained in any Loan Document; or (d) any rights Bank may have against any person not a party hereto. Obligors acknowledge that Bank has not committed or agreed, and is under no obligation, to refinance the Modified Note or to extend the maturity date of the Modified Note beyond that stated above. Grantor hereby represents and warrants that Grantor is the sole owner of the Property. 10. Release of Claims. In consideration for Bank's agreement to modify the Note, Obligor and Obligor's heirs, legal representatives, successors and assigns, do hereby release, discharge, and acquit Bank, its parent, subsidiary, and affiliate corporations, and their respective officers, directors, shareholders, agents, attorneys, and employees and their heirs, legal representatives, successors and assigns, and each of them, of and from any and all claims, demands, obligations, liabilities, indebtednesses, breaches of contract, breaches of duty or any relationship, acts, omissions, misfeasance, malfeasance, cause or causes of action, debts, controversies, promises, damages, costs, losses, and expenses, of whatever kind or nature, irrespective of how, why or by reason of what facts, whether heretofore, now existing or hereafter arising, or which could, might, or may be claimed to exist, of whatever kind, name or character, whether known or unknown, liquidated or unliquidated, which in any way arise out of, are connected with, or relate to the Note or the Loan Documents. This release covers, among other things, all claims of usury which may be asserted against Bank by reason of Bank's contracting for, charging or receiving interest on the loan evidenced by the Note prior to the execution of this Agreement in excess of that permitted under applicable law. 11. Final Agreement. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A) THIS DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY COMMITMENT LETTER, TERM SHEET OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH COMMITMENT LETTER, TERM SHEET OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO THE CONTRARY, (C) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS DOCUMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES. 12. Notice of Final Agreement. THIS WRITTEN AGREEMENT AND THE LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. MODIFICATION AGREEMENT FJ Rcviscd3/2008 ll4 Modifica[ionAgr-EqualizerMid-332008.doc EQUALIZER MIDNBST~ INC. (p Of 7 2oo~izo~. Executed to be effective as of the Modification Date. BANK: BORROWER and GRANTOR: BANK OF AMERICA, N.A. EQUALIZER MIDWEST, INC., a Nebraska corporation ,\ ~Gt.~! By: BY~ ~ ~~,,v W~ ~~ L~l. R. DOUG AS STEVENS, Chairman q f ~ TYP~NAMF~OF OFFICER \l Lam- 11 ems. c Q. ~~~~''kk\\ TYPE T[TLE OF OFFICER THE STATE OF ~~~y5 § COUNTY OF ~ ~~'~-~ § THIS INSTRUMENT was acknowledged before me on ~ ~~ PL,~. ~ `1 , 2008, by (~ , ~ ~ ,~ ,~ ~y,r ~~ ~ ~; •~ ~ J (~ ~ cc P~~c s~ n~-~t- of BANK OF AMERICA, N.A., a national banking association, on behalf of said bank. ~C"T;:X;a: Y:~' =o<µ°r °us~ GCSE 91lll~f-CIE STOREY /~j ~~ ~~~"'``~ , f~JOTARY PUBLIC ~1 Pq STAI"E OF TEXAS Notary Public, State of ~'~~ ~oF~ My Comm. Exp. 07-01-08 THE STATE OF TExAS § COUNTY OF MCLENNAN § THIS INSTRUMENT was acknowledged before me on ~,Gt2GV(. /¢ , 2008, by R. DOUGLAS STEVENS, Chairman of EQUALIZER MIDWEST, INC., a Nebraska corporation, on behalf of said corporation. „~• PAULETTE KOOP .~ NORAI1911~IIC=TAlE0F1EJIAf ~ co~nttlo~ txn~u: ° APRIL 26. 20'10 Notary Public, State of N braska MODIFICATION AGREEMENT 6 Revised 3/2008 114 ModificationAgr-EqualizerMid-332008.doc EQUALIZER MIDWEST, INC. df