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Deed of Trust and Security Agreement

 

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Title:

Deed of Trust and Security Agreement

Entities:

Agree Realty Corp.; Pepe & Hazard LLP

Date:

2004

Size:

Preview shows 10KB of 162KB total

Price:

$69

ID:

#270878

 

 

► Financing ► Security ► Deeds of Trust & Security Agreements
► Real Estate
► Services ► Legal

 

 

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Recorded at the Request of and                                     EXHIBIT 10.36

When Recorded Return to:

Pepe & Hazard LLP
225 Asylum Street - 22nd Floor
Hartford, CT 06103-4302
Attention: Adam F. Zweifler, Esq.

DEED OF TRUST AND SECURITY AGREEMENT

This DEED OF TRUST AND SECURITY AGREEMENT (the "MORTGAGE") is dated as
of the _____ day of October, 2003, by OMAHA STORE NO. 166 L.L.C., a Delaware
limited liability company ("BORROWER"), having its principal office at 31850
Northwestern Highway, Farmington Hills, Michigan 48334 to and in favor of
FIDELITY NATIONAL TITLE INSURANCE COMPANY, a California corporation, having an
address at 1901 North Roselle Road, Suite 650, Schaumberg, Illinois 60195 (the
"TRUSTEE"), as trustee for NATIONWIDE LIFE INSURANCE COMPANY, an Ohio
corporation, its successors and assigns ("LENDER"), having its principal office
at One Nationwide Plaza, Columbus, Ohio 43215-2220, Attention: Real Estate
Investment Department, 34T, or at such other place as Lender may from time to
time designate.

W I T N E S S E T H:

WHEREAS, Lender has made four loans of even date herewith in
the aggregate total original principal amount of Fifteen Million Dollars
($15,000,000.00) (the "AGGREGATE LOAN"). The Aggregate Loan is comprised of the
following loans of even date herewith: a loan from Lender to Borrower in the
original principal amount of $3,910,000.00 (this "LOAN"); a loan to ACMP
Germantown LLC, a Delaware limited liability company ("AGREE-MILESTONE"), in the
original principal amount of $3,310,000.00 (the "AGREE-MILESTONE LOAN"); a loan
to ACCP Maryland LLC, a Delaware limited liability company ("AGREE-COLUMBIA") in
the original principal amount of $3,520,000.00 (the "AGREE-COLUMBIA LOAN"); and
a loan to Oklahoma City Store No. 151 L.L.C., a Delaware limited liability
company ("OKLAHOMA CITY"), in the original principal amount of $4,260,000.00
(the "OKLAHOMA CITY LOAN") Agree-Milestone, Agree-Columbia and Oklahoma City are
hereinafter referred to collectively as the "AFFILIATED BORROWERS". The
Agree-Milestone Loan, the Agree-Columbia Loan and the Oklahoma City Loan are
hereinafter referred to generically as an "AFFILIATE LOAN" and collectively as
the "AFFILIATE LOANS";

Omaha, Nebraska

{PAGE}

WHEREAS, Borrower is justly indebted to Lender in the original
principal sum of Three Million Nine Hundred Ten Thousand and 00/100 Dollars
($3,910,000.00) with interest thereon, which Loan is evidenced and represented
by that certain Note of even date herewith (the "NOTE"), both principal and
interest being payable as therein provided, with the first payment on the Note
becoming due and payable on the date of disbursement and the term "Note" shall
include all other notes given in substitution, modification, increase, renewal
or extension of the original Note described herein, in whole or in part;

WHEREAS Borrower has guaranteed the payment and performance of the
obligations of the Affiliated Borrowers with respect to the Affiliate Loans
pursuant to the terms of that certain Cross-Default Guaranty Agreement of even
date herewith from Borrower, as guarantor, to Lender (the "BORROWER
CROSS-DEFAULT GUARANTY"); and

WHEREAS, Lender, as a condition precedent to the extension of credit
and the making of the Loan has required that Borrower provide Lender with
security for the repayment of the Loan as well as for the performance,
observance and discharge by Borrower of various terms, covenants, conditions and
agreements made by Borrower to, with, in favor of and for the benefit of Lender
with respect to the Loan and such security;

NOW THEREFORE, in consideration of and in order to secure the repayment
of the Loan evidenced and represented by the Note, together with interest on the
Loan, as well as the payment of all other sums of money secured hereby, as
hereinafter provided; to secure the observance, performance and discharge by
Borrower of all terms, covenants, conditions and agreements set forth in the
Note, this Mortgage and in the other Loan Documents (hereafter defined); in
order to charge the properties, interests and rights hereinafter described with
such payment, observance, performance and discharge; and in consideration of the
sum of one dollar paid by Lender to Borrower, and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged by
Borrower, Borrower does hereby grant, bargain, sell, convey, assign, transfer,
pledge, deliver, hypothecate, warrant and confirm unto Trustee, in trust, with
POWER OF SALE for the benefit of Lender forever, all of Borrower's right, title
and interest in and to the following described properties, including all rights,
interests, replacements, substitutions and additions thereto, therein or
therefore (collectively, the "MORTGAGED PROPERTY"):

(i) All that certain piece, parcel or tract of land or real
property of which Borrower is now seized and in actual or constructive
possession, situated in the City of Omaha, County of Douglas, and State of
Nebraska (the "STATE"), and being more particularly described on EXHIBIT A
attached hereto and by this reference made a part hereof (the "REAL PROPERTY");

(ii) All buildings, structures and other improvements of any kind,
nature or description now or hereafter erected, constructed, placed or located
upon the Real Property

Omaha, Nebraska

2
{PAGE}

(the "IMPROVEMENTS"), including, without limitation, any and all additions to,
substitutions for or replacements of such Improvements;

(iii) All minerals, royalties, gas rights, water, water rights,
water stock, flowers, shrubs, lawn plants, crops, trees, timber and other
emblements now or hereafter located on, under or above all or any part of the
Real Property;

(iv) All and singular, the tenements, hereditaments, strips and
gores, rights-of-way, easements, privileges, profits and other appurtenances now
or hereafter belonging or in any way appertaining to the Real Property,
including, without limitation, all right, title and interest of the Borrower in
any after-acquired right, title, interest, remainder or reversion in and to the
beds of any ways, streets, avenues, roads, alleys, passages and public places,
open or proposed, in front of, running through, adjoining or adjacent to the
Real Property (the "APPURTENANCES");

(v) Any and all leases, licenses, contracts, rents, license fees,
royalties, issues, revenues, profits, proceeds, deposits, income and other
benefits, including accounts receivable, termination fees, of, accruing to or
derived from the Real Property, Improvements and Appurtenances, and any business
or enterprise presently situated or hereafter operated thereon and therewith and
all of Borrower's right, title and interest under any and all lease guaranties,
letters of credit, and any other credit support furnished to Borrower in
connection with any of the foregoing (the "RENTS");

(vi) Any and all awards, payments or settlements, including
interest thereon, and the right to receive the same, as a result of: (a) the
exercise of the right of eminent domain; (b) the alteration of the grade of any
way, street, avenue, road, alley, passage or public place; (c) any other injury,
damage, casualty or claim relating to the taking of, or decrease in the value
of, the Real Property, Improvements or Appurtenances; or (d) proceeds of
insurance awards, to the extent of all amounts which may be secured by this
Mortgage at the date of any such award or payment including but not limited to
Reasonable Attorneys' Fees (as hereinafter defined), costs and disbursements
incurred by Lender in connection with the collection of such award or payment;

(vii) All fixtures, materials, equipment, machinery, apparatus,
appliances, and other property whatsoever now or hereafter attached to,
installed in, or used in connection with the buildings and other improvements
now erected or hereafter to be erected on said land, including, but not limited
to, furnaces, steam boilers, hot-water boilers, oil burners, pipes, radiators,
air-conditioning and sprinkler systems, gas and electric fixtures, carpets,
rugs, shades, awnings, screens, elevators, motors, dynamos, cabinets and all
other furnishings, tools, equipment and machinery, appliances, building
supplies, materials, and all fixtures, accessions and appurtenances thereto, and
all renewals or replacements of or substitutions for any of the foregoing, all

 

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