Exhibit 10.22
COMMERCIAL MORTGAGE, SECURITY AGREEMENT, FINANCING
STATEMENT AND ASSIGNMENT OF RENTS
A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY
ALLOW THE MORTGAGEE (ALSO CALLED THE "LENDER" HEREIN) TO TAKE THE MORTGAGED
PROPERTY (ALSO CALLED THE "PROPERTY" HEREIN) AND SELL IT WITHOUT GOING TO
COURT IN A FORECLOSURE ACTION UPON A DEFAULT BY THE MORTGAGOR (ALSO CALLED
THE "BORROWER" HEREIN) UNDER THIS MORTGAGE.
TOWER TECH, INC., an Oklahoma Corporation 11919 So. Interstate ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereafter called "Borrower')
FIRST UNITED BANK AND TRUST COMPANY, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(hereinafter called "Lender')
This COMMERCIAL MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT
OF RENTS (the "Mortgage" is made as of the 17th day of June, 1999, between the
Borrower as mortgagor and Lender as mortgagee.
DEFINITIONS. The following words shall have the following meanings when used in
this Mortgage. Terms not otherwise defined in this Mortgage shall have the
meanings attributed to such terms in the Oklahoma Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money of the United
States of America.
Mortgage. The words "Mortgage" mean this Mortgage among Borrower and Lender, and
includes without limitation all assignment and security interest provisions
relating to the Personal Property and Rents.
Fixtures. The word "Fixtures" means all building material, machinery, apparatus,
equipment, fittings, fixtures and personal property of every kind and nature
whatsoever, now in, part of, affixed to, delivered to or used in connection with
the buildings and improvements on the Real Property or hereafter acquired by the
Mortgagor and hereafter placed in, affixed to, delivered to or used in
connection which such buildings and improvements or any buildings hereinafter
constructed or placed upon the Real Property or any part thereof, including, but
without limiting the generality of the foregoing, all engines, furnaces,
boilers, stokers, pumps, heaters, tanks, dynamos, transformers, motors,
generators, fans, blowers, vents, switchboards, electrical equipment, heating,
plumbing, lifting and ventilating apparatus, air-cooling and air-conditioning
apparatus, water, gas and electrical fixtures, elevators, mail conveyors,
escalators, drapes, carpets, shades, awnings, screens, radiators, partitions,
ducts, shafts, pipes, conduits, lines and facilities of whatsoever nature for
air, gas, water, steam, electricity, waste sewage and for other utilities,
services and uses, compressors, vacuum cleaning systems, call systems, fire
prevention and extinguishing apparatus, kitchen equipment, cafeteria equipment,
all of which to the extent permitted by law are hereby understood and agreed to
be part and parcel of the Real Property and improvements thereon and
appropriated to the use and operation of the Real Property and said
improvements, and whether affixed or annexed or not, shall for the purposes of
this Mortgage be deemed constructively to be real estate and conveyed hereby,
excluding, however, readily movable trade fixtures not used or acquired for use
in connection with the operation of any such building or any part thereof,
readily movable office furniture, furnishings and equipment not so used or
acquired for use, and consumable supplies, whether or not affixed or annexed,
that have been or that may hereafter be placed in any building constructed upon
the Real Property or any part thereof.
Guarantor. The word "Guarantor" (individually and/or collectively, as the
context may require) means those persons, firms or entities, if any, designated
as Guarantor in the Related Documents.
Guaranty. The word "Guaranty" (individually and/or collectively, as the context
may require) means that or those instruments of guaranty, if any, now or
hereafter in effect, from Guarantor to Lender guaranteeing the repayment of all
or any part of the indebtedness.
Improvements. The word "Improvements" means and includes without limitation all
existing and future improvements, fixtures, buildings, structures, mobile homes
affixed on the Real Property, facilities, additions and other construction on
the Real Property.
Indebtedness. The word "Indebtedness" means: (a) the Note; (b) all principal and
earned interest and other sums required to be paid pursuant to the Note, this
Mortgage, and any other instruments related thereto; (c) all sums advanced or
costs or expenses incurred by Lender (whether by Lender directly or on Lenders
behalf by the Lender) which are made or incurred pursuant to or allowed by the
terms of this instrument, plus interest thereon at the same rate as provided in
the Note from the date paid until reimbursed; (d) other and additional notes,
debts, obligations, and liabilities of any kind and character of Borrower, now
and hereafter existing in favor of Lender regardless of whether such notes.
debts, obligations, and liabilities be direct or indirect, primary or secondary,
joint, several or joint and several, fixed or contingent and regardless of
whether such present or future notes, debts, obligations, and liabilities may,
prior to their acquisition by Lender, be or have been payable to or be or have
been in favor of some other person or have been acquired by Lender in a
transaction with one other than Lender, together with any and all renewals and
extensions of such notes, debts, obligations, and liabilities, or any part
thereof; and (e) all renewals and extensions of the above whether or not
Borrower executes any renewal or extension agreement. Note. The word "Note"
means the note dated June 17, 1999, in the principal amount of $253,000.00, from
Borrower to Lender, together with all renewals, extensions, modifications,
refinancings, and substitutions for the Note. The Note will mature on June 17,
2002.
Personal Property. The words "Personal Property" mean all equipment, and other
articles of personal property now or hereafter owned by Borrower, and now or
hereafter attached or affixed to the Real Property, and such other personal
property as may be described in this Mortgage: together with all accessions,
parts, additions to, replacements of, and substitutions for, any of such
property; and together with all proceeds (including without limitation all
insurance proceeds and refunds of premiums) from any sale or other disposition
of the Property.
Property. The word "Property" means collectively the Real Property and the
Personal Property (also called the "Mortgaged Property").
Real Property. The real property located in Cleveland County, Oklahoma described
in Exhibit "A" attached hereto and made a part hereof for all purposes, together
with all tenements, hereditaments, rights and appurtenances now or hereafter
belonging thereto, including, without limitation, any adjacent land or easements
rights or appurtenances acquired or created for the benefit of the Real Property
after the date hereof. SUBJECT TO all conditions, covenants, restrictions,
reservations and easements that appear of record. The Real Property address is
commonly known as 11919 So. Interstate 44 Service Road, Oklahoma City, Oklahoma.
Related Documents. The words "Related Documents" mean and include without
limitation all credit agreements, loan agreements, guaranties, security
agreements, mortgages, deeds of trust, and all other instruments 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, bonuses, production payments, royalties, profits, and other benefits
derived from the Property.
THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Borrower does hereby mortgage, pledge, grant, convey
and assign to Lender, with power of sale, the Property to secure to Lender the
payment of the Indebtedness and all amounts secured by this Mortgage as they
become due and except as otherwise provided, Borrower shall strictly and in a
timely manner, perform all of Borrowers obligations under the Indebtedness and
this Mortgage.
Borrower hereby absolutely assigns to Lender all of Borrowers right, title and
interest in and to all present and future leases of the Property and all Rents
from the Property. In addition, Borrower grants Lender a Uniform Commercial Code
security interest in the Rents and the Personal Property.
TO HAVE AND TO HOLD the Property unto the Lender, its successors and assigns,
forever.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower agrees that Borrower'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, Borrower may:
(a) remain in possession and control of the Property: (b) use, operate or manage
the Property: and (c) collect any Rents from the Property.
Duty to Maintain. Borrower shall maintain the Property in tenantable condition
and promptly perform all repairs, replacements. and maintenance necessary to
preserve its value.
Hazardous Substances. The terms "hazardous waste," "hazardous substance,"
"disposal," "release," and threatened release," as used in this Mortgage, shall
have the same meanings as set forth in 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 ("▇▇▇▇"), the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., the Resource Conservation and Recovery Act, 49 U.S.C.
Section 6901, et seq., or other applicable state or Federal laws, rules, or
regulations adopted pursuant to any of the foregoing. Borrower represents and
warrants to Lender that: (a) During the period of Borrowers ownership of the
Property, there has been no use, generation, manufacture, storage, treatment,
disposal, release or threatened release of any hazardous waste or substance by
any person on, under, or about the Property: (b) Borrower has no knowledge of,
or reason to believe that there has been, except as previously disclosed to and
acknowledged by Lender in writing, (i) any use, generation, manufacture,
storage, treatment, disposal, release, or threatened release of any hazardous
waste or substance by any prior owners or occupants of the Property or (ii) any
actual or threatened litigation or claims of any kind by any person relating to
such matters; (c) Except as previously disclosed to and acknowledged by Lender
in writing. (i) neither Borrower nor any tenant, contractor. agent or other
authorized user of the Property shall use, generate, manufacture, store, treat,
dispose of, or release any hazardous waste or substance on, under, or about the
Property and (ii) any such activity shall be conducted in compliance with all
applicable federal, state, and local laws, regulations and ordinances, including
without limitation those laws, regulations, and ordinances described above.
Borrower authorizes Lender and its agents to enter upon the Property to make
such inspections and tests 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 at Borrower's expense, shall be for Lenders
purposes only and shall not be construed to create any responsibility or
liability on the part of Lender to Borrower or to any other person. The
representations and warranties contained herein are based on Borrowers due
diligence in investigating the Property for hazardous waste. Borrower hereby (a)
releases and waives any future claims against Lender for indemnity or
contribution in the event Borrower becomes liable for cleanup or other costs
under any such laws, and (b) agrees to indemnify 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 Borrowers ownership or interest in the Property, whether or
not the same was or should have been known to Borrower. The provisions of this
section of the Mortgage including the obligation to indemnity, shall survive the
payment of the Indebtedness and the satisfaction and release of the lien of
this Mortgage and shall not be affected by Lenders acquisition of any interest
in the Property, whether by foreclosure or otherwise.
Nuisance, Waste. Borrower 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. Specifically without limitation, Borrower will not
remove, or grant to any other party the right to remove, any timber, minerals
(including oil and gas), soil, gravel or rock products without the prior written
consent of Lender. This restriction will not apply to rights and easements (such
as gas and oil) not owned by Borrower and of which Borrower has informed Lender
in writing prior to Borrowers signing of this Mortgage.
Removal of Improvements. Borrower shall not demolish or remove any Improvements
from the Real Property without the prior written consent of Lender. As a
condition to the removal of any Improvements, Lender may require Borrower to
make arrangements satisfactory to Lender to replace such Improvements with
Improvements of at least equal value.
Lenders Right to Enter. Lender and its agents and representatives may enter upon
the Real Property at all reasonable times to attend to Lenders interests and to
inspect the Property for purposes of Borrowers compliance with the terms and
conditions of this Mortgage.
Compliance with Governmental Requirements. Borrower 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.
Borrower may contest in good faith any such law, ordinance, or regulation and
withhold compliance during any proceeding, including appropriate appeals, so
long as Borrower has notified Lender in writing prior to doing so and so long as
Lenders interests in the Property are not jeopardized. Lender may require
Borrower to post adequate security or a surety bond, reasonably satisfactory to
Lender, to protect Lenders interest.
Duty to Protect. Borrower agrees neither to abandon nor leave unattended the
Property. Borrower 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.
DUE ON SALE - CONSENT BY LENDER. Lender may, at its option, declare immediately
due and payable all Indebtedness secured by this Mortgage upon the sale or
transfer, without the Lenders prior written consent, of all or any part of the
Real Property, or any interest in the Real Property. A "sale or transfer" means
the conveyance of Real Property or any right, title or interest therein; whether
legal or equitable; whether voluntary or involuntary; whether by outright sale,
deed, installment sale contract, land contract, contract for deed, leasehold
interest with a term greater than three (3) years, lease-option contract, or by
sale, assignment, or transfer of any beneficial interest in or to any land trust
holding title to the Real Property, or by any other method of conveyance of such
Real Property interest. If any Borrower is a corporation or partnership,
transfer also includes any change in ownership of more than twenty-five percent
(25%) of the voting stock or partnership interests, as the case may be, of
Borrower. However, this option shall not be exercised by Lender if such exercise
is prohibited by Federal law or by Oklahoma Law. A lease or conveyance by
Borrower to a corporation controlled by Borrower, an associated or affiliated
company, partnership or to an individual family member of the shareholders of
the Borrower, will not be deemed a violation of this paragraph, provided that
(i) Borrower and Guarantors remain liable for the loan; (ii) Lender is notified
in writing in advance of such transfer and provides prior written approval,
which approval shall not be unreasonably withheld; and (iii) all individuals who
become involved directly or indirectly in the ownership of the Property,
personally guarantee the Indebtedness.
TAXES AND LIENS. The following provisions relating to the taxes and liens on the
Property are a part of this Mortgage:
Payment Borrower shall pay when due (and in all events prior to delinquency) all
taxes, special taxes, assessments', charges (including water and sewer), fines
and impositions levied against or on account of the Property, and shall pay when
due all claims for work done on or for services rendered or material furnished
to the Property. Borrower shall maintain the Property free of all liens having
priority over or equal to the interest of Lender under this Mortgage, except for
the lien of taxes and assessments not due and except as otherwise provided in
this Mortgage.
Right to Contest. Borrower may withhold payment of any tax, assessment, or claim
in connection with a good faith dispute over the obligation to pay, so long as
Lenders interest in the Property is not jeopardized. If a lien arises or is
filed as a result of nonpayment, Borrower shall within fifteen (15) days after
the lien arises or, if a lien is filed, within fifteen (15) days after Borrower
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, Borrower shall
defend itself and Lender and shall satisfy any adverse judgment before
enforcement against the Property. Borrower shall name Lender as an additional
obligee under any surety bond furnished in the contest proceedings.
Evidence of Payment. Borrower 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. Borrower 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 $1,000.00. Borrower will upon request of Lender furnish to Lender
advance assurances satisfactory to Lender that Borrower 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. Borrower 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 and
all Personal Property in an amount sufficient to avoid application of any
coinsurance clause, and with a standard mortgagee clause in favor of Lender,
together with such other insurance, including but not limited to hazard,
liability, business interruption, and boiler insurance, as Lender may reasonably
require. Policies shall be written in form, amounts, coverages and basis
reasonably acceptable to Lender. Borrower MAY FURNISH THE REQUIRED INSURANCE
WHETHER THROUGH EXISTING POLICIES OWNED OR CONTROLLED BY BORROWER OR THROUGH
EQUIVALENT INSURANCE FROM ANY INSURANCE COMPANY AUTHORIZED TO TRANSACT BUSINESS
IN THE STATE OF OKLAHOMA. If Borrower fails to provide any required insurance or
fails to continue such insurance in force, Lender may, but shall not be required
to, do so at Borrowers expense, and the cost of the insurance will be added to
the Indebtedness. If any such insurance is procured by Lender at a rate or
charge not fixed or approved by the State Board of Insurance, Borrower will be
so notified, and Borrower will have the option for five (5) days of furnishing
equivalent insurance through any insurer authorized to transact business in
Oklahoma. Borrower, upon request of Lender, will deliver to Lender from time to
time the policies or certificates of insurance in form satisfactory to Lender,
including stipulations that coverages will not be cancelled or diminished
without at least ten (10) days' prior written notice to Lender.
Application of Proceeds. Borrower shall promptly notify Lender of any loss or
damage to the Property if the estimated cost of repair or replacement exceeds
$1,000.00. Lender may make proof of loss if Borrower fails to do so within
fifteen (15) days of the casualty. Whether or not Lender's security is impaired,
Lender may, at its election, 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, Borrower shall repair or replace the damaged or destroyed Property
in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of
such expenditure, pay or reimburse Borrower from the proceeds for the reasonable
cost of repair or restoration if Borrower 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 Borrower as
Borrower's interests may appear.
Unexpired Insurance at Sale. Any unexpired insurance shall inure to the benefit
of, and pass to, the purchaser of the Property covered by this Mortgage at any
sale held under the provisions of this Mortgage, or at any foreclosure sale of
such Property.
Borrower's Report on Insurance. Upon request of Lender, however not more than
once a year, Borrower shall furnish to Lender a report on each existing policy
of insurance showing: (a) the name of the insurer; (b) the risks insured; (c)
the amount of the policy; (d) the property insured, the then current replacement
value of such property. and the manner of determining that value; and (e) the
expiration date of the policy. Borrower shall, upon request of Lender, have an
independent appraiser satisfactory to Lender determine the cash value
replacement cost of the Property.
ESCROW FOR TAXES AND INSURANCE. At the request of Lender, Borrower shall create
a fund or reserve for the payment of all insurance premiums, taxes, and
assessments against the Property by paying to Lender contemporaneously with each
installment of principal and interest on the note a sum equal to the premiums
that will next become due and payable on the hazard insurance policies covering
the Property, or any part thereof, plus taxes and assessments next due on the
Property or any part thereof, as estimated by Lender, less all sums paid
previously to Lender, divided by the number of months to elapse before one month
prior to the date when such premiums. taxes, and assessments will become
delinquent, such sums to be held by Lender without interest, for the purpose of
paying such premiums, taxes, and assessments. Any excess reserve shall, at the
discretion of Lender therefor, be credited by Lender on subsequent payments to
be made on the Indebtedness, and any deficiency shall be paid by Borrower to
Lender on or before the date when such premiums, taxes, and assessments shall
become delinquent. Transfer of legal title to the Property shall automatically
transfer to the transferee title in all sums deposited under the provisions of
this Section.
FINANCIAL STATEMENTS. Borrower and each Guarantor of the Indebtedness, shall
furnish to Lender on an annual basis, balance sheets, income statements and cash
flow statements in such form and detail as Lender shall require.
APPRAISALS. Borrower shall furnish to Lender, upon request, such appraisals of
the Property as may be required of Lender under applicable State or Federal laws
and regulations issued pursuant thereto.
ANNUAL REPORTS. Borrower shall furnish to Lender, upon request, a certified
statement of Net Operating Income received from the Property during Borrowers
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 operations of the Property.
EXPENDITURES BY Lender. If Borrower fails to comply with any provision of this
Mortgage, or if any action or proceeding is commenced that would materially
affect Lender's interests in the Property, Lender on Borrower's behalf may, but
shall not be required to, take any action that Lender deems appropriate. Any
amount that Lender expends in so doing will bear interest at the Note rate from
the date incurred or paid by Lender to the date of repayment by Borrower. All
such expenses, 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 (i) the term of any applicable
insurance policy or (ii) 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. This
Mortgage also will secure payment of these amounts. The rights provided for in
this paragraph shall be in addition to any other rights or any remedies to which
Lender may be entitled on account of the default. Any such action by Lender
shall not be construed as curing the default so as to bar Lender from any remedy
that it otherwise would have had.
WARRANTY: DEFENSE OF TITLE. The following provisions relating to ownership of
the Property are a part of this Mortgage:
Title. Borrower warrants that: (a) Borrower holds good and marketable title of
record to the Property in fee simple, free and dear of all liens and
encumbrances other than those set forth herein or in any title insurance policy,
title report, or attorney's opinion issued in favor of, and accepted by Lender
in connection with this Mortgage: and (b) Borrower 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, Borrower
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 Borrower's title or the interest of Lender under this Mortgage,
Borrower shall defend the action at Borrower's expense. Borrower 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 Borrower 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. Borrower warrants that the Property and Borrower's use of
the Property complies with all existing applicable laws, ordinances, and
regulations of governmental authorities.
CONDEMNATION. The following provisions relating to proceedings in condemnation
are a part of this Mortgage:
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 necessarily
paid or incurred by Borrower or Lender in connection with the condemnation.
Proceedings. If any proceeding in condemnation is filed, Borrower shall promptly
notify Lender in writing, and Borrower shall promptly take such steps as may be
necessary to defend the action and obtain the award. Borrower 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 Borrower will deliver or cause to be delivered to Lender such instruments as
may be requested by it from time to time to permit such participation.
ASSIGNMENT OF RENTS. As additional security for the payment of the Indebtedness,
Borrower hereby absolutely assigns to Lender all Rents as defined above. Until
the occurrence of an Event of Default, Borrower is granted a license to collect
and retain the Rents; however, upon receipt from Lender of a notice that an
Event of Default exists under this Mortgage, Lender may terminate Borrower's
license. and then Lender, as Borrower's agent, may collect the Rents. In
addition, if the Property is vacant, Lender may rent or lease the Property.
Lender shall not be liable for its failure to rent the Property, to collect any
rents, or to exercise diligence in any matter relating to the Rents; Lender
shall be accountable only for Rents actually received. Lender neither has nor
assumes any obligation as lessor or landlord with respect to any occupant of the
Property. Rents so received shall be applied by Lender first to the remaining
unpaid balance of the Indebtedness, in such order or manner as Lender shall
elect, and the residue, if any, shall be paid to the person or persons legally
entitled to the residue.
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 or other personal property, and
Lender shall have all of the rights of a secured party under the Oklahoma
Uniform Commercial Code as amended from time to time.
Security Interest. Upon request by Lender, Borrower shall execute financing
statements and take whatever other action is requested by Lender to perfect and
continue Lender's security interest in the Property. In addition to recording
this Mortgage in the real property records, Lender may, at any time and without
further authorization from Borrower, file executed counterparts, copies or
reproductions of this Mortgage as a financing statement. Borrower shall
reimburse Lender for all expenses incurred in perfecting or continuing this
security interest. Upon default, Borrower shall assemble the Personal Property
in a manner and at a place reasonably convenient to Borrower and Lender and make
it available to Lender within three (3) days after receipt of written demand
from Lender.
Addresses. The mailing addresses of Borrower (debtor) and Lender (secured
party), from which information concerning the security interest granted by this
Mortgage may be obtained (each as required by the Oklahoma Uniform Commercial
Code), are as stated on the first page of this Mortgage.
FURTHER ASSURANCES; ATTORNEY-IN-FACT. 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,
Borrower 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: (a) the obligations of Borrower under the Note, this Mortgage, and the
Related Documents; and (b) the liens and security interests created by this
Mortgage as first and prior liens on the Property, whether now owned or
hereafter acquired by Borrower. Unless prohibited by law or agreed to the
contrary by Lender in writing, Borrower shall reimburse Lender for all costs and
expenses incurred in connection with the matters referred to in this paragraph.
Attorney-In-Fact. If Borrower fails to do any of the things referred to in the
preceding paragraph, Lender may do so for and in the name of Borrower and at
Borrower's expense. For such purposes, Borrower hereby irrevocably appoints
Lender as Borrower's attorney-in-fact for the purpose of making, executing,
delivering. filing, recording, and doing all other things as may be necessary or
desirable, in Lender's sole opinion, to accomplish the matters referred to in
the preceding paragraph.
FULL PERFORMANCE. If Borrower pays all the Indebtedness when due, and Otherwise
performs all the obligations imposed upon Borrower under this Mortgage, Lender
shall execute and deliver to Borrower a release of this Mortgage lien and
suitable statements of termination of any financing statement on file evidencing
Lender's security interest in the Rents and the Personal Property. Reasonable
costs for preparation of such release and statements of termination together
with any filing fees required by law shall be paid by Borrower, if permitted by
applicable law.
EVENTS OF DEFAULT. The following events shall constitute Events of Default.
Default. Default in the timely payment of any installment of principal and
interest of the Indebtedness or in the performance of any covenant or provision
of any Related Document.
Insolvency. Borrower, or any Guarantor, shall: (a) execute an assignment for the
benefit of creditors or take any action in furtherance thereof; or (b) admit in
writing his inability to pay his debts generally as they become due; or (c) as a
debtor, file a petition, case. proceeding, or other action pursuant to, or
voluntarily seek the benefit or benefits of any debtor relief law or take any
action in furtherance thereof; or (d) seek, acquiesce in, or suffer the
appointment of a receiver, trustee, or custodian of Borrower, any Guarantor, the
Property, in whole or in part, or any significant portion of other property
belonging to Borrower or any Guarantor that affects performance of the
Indebtedness; or (e) voluntarily become a party to any proceeding seeking to
effect a suspension or having the effect of suspending any of the rights of
Lender granted or referred to in the Related Documents or take any action in
furtherance thereof.
Bankruptcy. The filing of a petition, case, proceeding, or other action against
Borrower, or any Guarantor, as a debtor under any debtor relief law; or seeking
appointment of a receiver, trustee, or custodian of Borrower, or any Guarantor,
or of any property described in the Related Documents or any part thereof, or of
any significant portion of other property belonging to Borrower or any
Guarantor, that affects its ability to perform under the Indebtedness, or
seeking to effect a suspension or having the effect of suspending any of the
rights of Lender granted or referred to in the Related Documents, and: (a)
Borrower or any Guarantor admits. acquiesces in, or fails to contest the
material allegations thereof; or (b) the petition, case, proceeding, or other
action results in entry of an order for relief or order granting the relief
sought against Borrower or any Guarantor; or (c) the petition, case, proceeding,
or other action is not permanently dismissed on or before the earliest of trial
thereon or sixty (60) days next following the date of its filing.
Breaches. The discovery by Lender that any warranty, covenant. or representation
made to Lender by or on behalf of Borrower or any Guarantor is false,
misleading, erroneous, or breached in any material respect.
A default shall not be an Event of Default if the default is cured within ten
(10) days following the delivery of or the mailing of written notice from
Beneficiary to Borrower's most current address as reflected in Beneficiary's
business records specifying the existence of any such default. If such default
is not cured within the ten-(10) day period, the default shall be an Event of
Default without need of any further notice or action by Beneficiary.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any Event of Default, and
after giving any required statutory notice of default, including any notice
required under the laws of the State of Oklahoma, at any time thereafter,
Lender, at its option, may exercise any one or more of the following rights and
remedies, in addition to any other rights or remedies provided by law:
Accelerate Indebtedness. Lender may declare the unpaid principal balance of the
Indebtedness due and payable. In no event will Borrower be required to pay any
unearned Interest.
Foreclosure. In the event Lender elects to foreclose this Mortgage, then Lender,
at its option, may: (a) foreclose this Mortgage and sell the Property by a power
of sale (which power of sale is hereby granted by Borrower to Lender) pursuant
to the Oklahoma Power of Sale Mortgage Foreclosure Act or any successor statute
(the "Power of Sale Act"); (b) foreclose this Mortgage by judicial proceeding;
and/or (c) invoke any other remedies provided herein or in any other instrument
evidencing, guaranteeing, or securing payment of the sums secured hereby by or
otherwise provided by applicable law. Without limiting the generality of the
foregoing, Lender shall be entitled to seek specific performance and/or
injunctive relief (prohibitive or mandatory) with respect to the Borrower's
covenants and agreements contained in this Mortgage and the other documents
evidencing and securing the loan secured hereby, whether or not Lender elects to
accelerate the sums secured hereby.
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 Oklahoma
Uniform Commercial Code.
Lender's Power. Borrower hereby jointly and severally authorizes and empowers
Lender to sell all or any portion of the Property together or in lots or
parcels, as Lender may deem expedient, and to execute and deliver to the
purchaser or purchasers of such Property good and sufficient deeds of conveyance
of fee simple title, or of lesser estates, and bills of sale and assignments,
with covenants of general warranty made on behalf of Borrower. In no event shall
Lender be required to exhibit, present or display at any such sale any of the
Property to be sold at such sale. The Lender making such sale shall receive the
proceeds of the sale and shall apply the same as provided below. Payment of the
purchase price to Lender shall satisfy the liability of the purchaser at any
such sale of the Property, and such person shall not be bound to look after the
application of the proceeds.
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.
Tenancy at Sufferance. If Borrower 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, Borrower shall become a
tenant at sufferance of Lender or the purchaser of the Property and shall, at
Lenders option, either: (a) pay a reasonable rental for the use of the Property:
(b) vacate the Property immediately upon the demand of Lender; or (c) if such
tenants refuse to surrender possession of the Property upon demand, the
purchaser shall be entitled to institute and maintain the statutory action of
forcible entry and detainer and procure a writ of possession thereunder, and
Borrower expressly waives all damages sustained by reason thereof.
Appraisement and Sale of the Property. To the extent permitted by applicable
law, Borrower hereby waives any and all rights to have the Property marshalled.
In exercising its rights and remedies, the 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. Lender may convey all or any part of the Property to the
highest bidder for cash with a general warranty binding Borrower, subject to
prior liens and to other exceptions to the conveyance and warranty. Appraisement
of the Property is hereby waived or not waived at Lenders option, which shall be
exercised at the time judgment is entered in any foreclosure hereof or at any
time prior thereto. The affidavit of any person having knowledge of the facts to
the effect that proper notice as required by Oklahoma law was given shall be
prima facie evidence of the fact that such notice was in fact given. Recitals
and statements of fact in any notice or in any conveyance to the purchaser or
purchasers of the Property in any foreclosure sale under this Mortgage shall be
prima facie evidence of the truth of such facts, and all prerequisites and
requirements necessary to the validity of any such sale shall be presumed to
have been performed. Any sale under the powers granted by this Mortgage shall be
a perpetual bar against Borrower, Borrowers heirs, successors, assigns and legal
representatives.
Proceeds. Lender shall pay the proceeds of any sale of the Property: (a) first,
to the expenses of foreclosure, including reasonable fees or charges paid to the
Lender, including but not limited to fees for enforcing the lien, posting for
sale, selling, or releasing the Property: (b) then to Lender the full amount of
the Indebtedness; (c) then to any amount required by law to be paid before
payment to Borrower; and (d) the balance.
if any, to Borrower.
Waiver; Election of Remedies. A waiver by any party of a breach of a provision
of this Mortgage shall not constitute a waiver of or prejudice that party's
rights otherwise to demand strict compliance with that provision or any other
provision. Election by Lender to pursue any remedy provided in this Mortgage,
the Indebtedness, in any Related Document, or provided by law shall not exclude
pursuit of any other remedy, and an election to make expenditures or to take
action to perform an obligation of Borrower under this Mortgage after failure of
Borrower to perform shall not affect Lenders right to declare a default and to
exercise any of its remedies.
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 on any
appeal, whether or not any court action is involved, all reasonable expenses
incurred by Lender which in Lenders 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, be payable on demand and shall bear interest at the Note
rate from the date of expenditure until repaid. Expenses covered by this
paragraph include, without limitation, however subject to any limits under
applicable law, Lenders reasonable attorneys' fees whether or not there is a
lawsuit, including attorneys' fees 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,
environmental assessments, appraisal fees, title insurance. and fees for the
Lender, to the extent permitted by applicable law. Borrower will also pay any
court costs, in addition to all other sums provided by law. In the event of
foreclosure of this Mortgage, Lender shall be entitled to recover from Borrower
Lenders reasonable attorneys' fees and actual disbursements necessarily incurred
by Lender in pursuing such foreclosure.
POWERS AND OBLIGATIONS OF LENDER. The following provisions relating to the
powers and obligations of Lender are part of this Mortgage:
Powers of Lender. In addition to all powers of Lender arising as a matter of
law, Lender shall have the power to take the following actions with respect to
the Property upon the written request of Borrower: (a) join in preparing and
filing a map or plat of the Real Property. including the dedication of streets
or other rights to the public: (b) join in granting any easement or creating any
restriction on the Real Property: and (c) join in any subordination or other
agreement affecting this Mortgage or the interest of Lender under this Mortgage.
Obligations to Notify. Lender shall not be obligated to notify any other
lienholder of the Property of the commencement of a foreclosure proceeding or of
the commencement of any other action to which Lender may avail itself as a
remedy, except to the extent required by applicable law or by written agreement.
Foreclosure. In addition to the rights and remedies set forth above, with
respect to all or any part of the Property, the Lender shall have the right to
foreclose by notice and sale, and by judicial foreclosure, in either case in
accordance with and to the full extent provided by applicable law.
NOTICES TO BORROWER AND OTHER PARTIES. Any notice under this Mortgage shall be
in writing and shall be effective when actually delivered or, if mailed, shall
be deemed effective when deposited in the United States mail first class,
certified mail, postage prepaid. directed to the addresses 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, Borrower agrees to keep Lender informed at all times of Borrowers
current address.
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.
Applicable Law. This Mortgage has been delivered to Lender and accepted by
Lender in the State of Oklahoma. This Mortgage shall be governed by and
construed in accordance with the laws of the State of Oklahoma and applicable
Federal laws.
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.
Limitation of interest. All agreements between Borrower and Lender are expressly
limited so that in no contingency or event whatsoever whether by reason of
advancement of the proceeds of the Indebtedness, acceleration of maturity of the
Indebtedness hereof, or otherwise, shall the amount paid or agreed to be paid to
the Lender for the use, forbearance, or detention of the money to be advanced
hereunder exceed the highest rate permissible under the laws of the State of
Oklahoma and of the United States, (to the extent not preempted by Federal law,
if any) and any subsequent revisions repeals, or judicial interpretations
thereof, to the extent any of same are applicable hereto and thereto. If, from
any circumstance whatsoever, fulfillment of any provisions hereof or of the
Indebtedness or any other agreement referred to herein or therein shall, at the
time fulfillment of such provision be due, involve transcending the limit of
validity prescribed by law that a court of competent jurisdiction may deem
applicable hereto, then ipso facto the obligations to be fulfilled shall be
reduced to the limit of such validity, and if from any circumstance the Lender
shall ever receive as interest an amount which would be excessive interest, it
shall: (a) be applied to the reduction of the unpaid principal balance of the
Indebtedness: or (b) be refunded to Borrower and not to the payment of
interest. It is further agreed. without limitation of the foregoing, that all
calculations of the rate of interest contracted for, charged, or received on the
indebtedness evidenced or secured hereby that are made for the purpose of
determining whether such rate exceeds the maximum lawful contract rate, shall be
made, to the extent permitted by applicable law, by amortizing, prorating,
allocating, and spreading throughout the full stated term of the Indebtedness
so that such rate of interest on account of such Indebtedness, as so calculated,
is uniform throughout the term thereof. This provision shall control every other
provision of all agreements between Borrower and the Lender.
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.
Multiple Panties. All obligations of Borrower under this Mortgage shall be joint
and several, and all references to Borrower shall mean each and every Borrower.
This means that each of the persons signing below is responsible for all
obligations in this Mortgage. Where any one or more of the parties are
corporations or partnerships, it is not necessary for Lender to inquire into the
powers of any of the parties or of the officers, directors, partners, or agents
acting or purporting to act on their behalf.
Severability. If a court of competent jurisdiction finds any provision of this
Mortgage to be invalid or unenforceable as to any person or circumstance, such
finding shall not render that provision invalid or unenforceable as to any other
persons or circumstances. If feasible, any such offending provisions shall be
deemed to be modified to be within the limits of enforceability or validity;
however, if the offending provision cannot be so modified, it shall be stricken
and all other provisions of this Mortgage in all other respects shall remain
valid and enforceable.
Successors and Assigns. Subject to the limitations stated in this Mortgage on
transfer of Borrowers 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 Borrower, Lender, without notice
to Borrower, may deal with Borrowers successors with reference to this Mortgage
and the Indebtedness by way of forbearance or extension without releasing
Borrower 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.
Waivers and Consents. Lender shall not be deemed to have waived any rights under
this Mortgage (or under the Related Documents) unless such waiver is 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 any party of a provision of this Mortgage shall not constitute a waiver of or
prejudice the party's right otherwise to demand strict compliance with that
provision or any other provision. No prior waiver by Lender, nor any course of
dealing between Lender and Borrower, shall constitute a waiver of any of Lenders
rights or any of Borrowers obligations as to any future transactions, whenever
consent by Lender is required in 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.
ADDITIONAL PROVISIONS:
Proceeds. The Note hereby secured is given for the purpose of constructing
improvements on the Property, subject to the terms and conditions of the
Construction Loan Agreement of even date herewith. This is a "Construction
Mortgage" within the meaning of the Oklahoma Uniform Commercial Code.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND
BORROWER AGREES TO ITS TERMS.
EXECUTED this 17th day of June, 1999.
BORROWER:
TOWER TECH, INC., an Oklahoma Corporation
By:
ss/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Financial Officer
-----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
STATE OF OKLAHOMA
COUNTY OF OKLAHOMA
This investment was acknowledged before me on this ________ day of June, 1999,
by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Financial Officer of TOWER TECH, INC., an Oklahoma
Corporation, on behalf of said corporation.
NOTARY PUBLIC - STATE OF OKLAHOMA
Prepared in the Law Office of:
MUNSON, MUNSON, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Exhibit "A"
A part of the Southeast Quarter (SE/4) of Section Eleven (11), Township Ten (10)
North, Range Four (4) West of the Indian Meridian, Cleveland County, Oklahoma,
being more particularly described as follows:
Commencing at the Southeast Corner of said Southeast Quarter (SE/4);
Thence South 89(degree)42'04" West along the South line of said Southeast
Quarter (SE/4) a distance of l,780.60 feet;
Thence continuing South 89(degree)42'04" West along the South line a distance of
843.24 feet to the Southwest Corner of said Southeast Quarter (SE/4);
Thence North 00(degree)07'35" West on the West line of said Southeast Quarter
(SE/4) a distance of 1764.49 feet to a point 880.00 feet South of the Northwest
Corner of said Southeast Quarter (SE/4);
Thence North 89(degree)42'07" East parallel to and 880.00 feet South of the
North line of said Southeast Quarter (SE/4) a distance of 240.00 feet;
Thence South 00(degree)07'35" East and parallel with the West line of said
Southeast Quarter (SE/4) distance of 735.00 feet to the point of beginning;
Thence continuing South 00(degree)07'35" East a distance of 65.00 feet;
Thence South 14(degree)49'10" East a distance of 490.68 feet;
Thence North 89(degree)42'07" East and parallel with the North line of said
Southeast Quarter (SE/4) a distance of 360.55 feet;
Thence North 00(degree)07'35" West and parallel with the West line of said
Southeast Quarter (SE/4) a distance of 540.00 feet;
Thence South 89(degree)42'07" West and parallel with the North line of said
Southeast Quarter (SE/4) a distance of 485.00 feet to the point or place of
beginning.