DEED IN LIEU OF FORECLOSURE AGREEMENT
This Deed in Lieu of Foreclosure Agreement
("
Agreement") is made as of the ____ day of March, 2014, by
and among
STAR OF BETHLEHEM EVANGELICAL
LUTHERAN CHURCH, an Illinois religious corporation, formerly known as Bethlehem
Evangelical Lutheran Church, an Illinois religious corporation, of Savoy, IL ("
Borrower"),
and
WELS CHURCH EXTENSION FUND, INC.,
a Wisconsin corporation (“Lender”).
R E C I T A L S:
A.
Borrower is the owner of certain real estate
located in Champaign County, Illinois and legally described in
Exhibit
A-1 attached hereto (the "
Land”) and all improvements
situated thereon (the "
Improvements"). The Land and the
Improvements are hereinafter sometimes collectively referred to as the "
Real
Property". For purposes of this
Agreement, (i) "
Intangible Property" shall mean all
right, title and interest of Borrower in (a) all leases, subleases and
rental agreements, including
unapplied security deposits, affecting the Real Property (including
without limitation the Leases (as hereinafter defined)), (b)
to the
extent assignable, all current licenses
and permits affecting the Real Property, (c) all maintenance, service or
other agreements affecting the Real Property, (d)
to the extent assignable, any and all warranties and guaranties relating to the Real
Property, (e) any and all
refunds and prepayments
that are now due or hereafter become payable to Borrower under any agreements or contracts
relating to the Real Property and (f) all
rights of
Borrower if any,
in the name of the
Real Property and all telephone exchange numbers used at the Real Property by Borrower or any manager of the Real Property; and (ii) "
Personal
Property" shall mean the tangible personal property owned by Borrower located at the Real Property. The Real Property, Intangible Property and
Personal Property are collectively referred to as the "
Property".
B.
Lender originally loaned Borrower the sum of Four
Hundred Seventy-Five Thousand Four Hundred and No/100 Dollars ($475,400.00)
which amount was increased to Five Hundred Twenty-Five Thousand Four Hundred and
No/100 Dollars ($525,400.00) (the "
Loan"), which Loan is
evidenced, secured or otherwise governed, in part, by the following documents:
(1)
that
certain Mortgage Note dated December 3, 2008, made by Borrower and payable to
the order of Lender, as amended and restated in that certain Mortgage Note dated
June 11, 2009 (as so amended, modified and restated, the "Note");
(2)
that
certain Construction Mortgage – dated December 3, 2008, made by Borrower to
Lender, and recorded on December 26, 2008, in the Champaign County, Illinois
Recorder’s Office (the "Recorder’s Office") as Document No. 2008R31022
as amended by Mortgage Modification Agreement dated June 11, 2009, and recorded
in the Recorder's Office as Document No. 2009R19231, which Mortgage encumbers
the Property (as so amended, the "Mortgage"); and
The Note and Mortgage and all other documents which
evidence or secure the Loan are hereinafter collectively referred to as the
"Loan Documents."
C.
Lender
is the holder of the Note.
E.
Borrower
is in default with respect to the Loan and Lender, because Borrower has failed
to make payments when due resulting in Lender’s acceleration of the maturity of
the Loan, as a consequence thereof, Lender is entitled to exercise all of its
rights and remedies under the Loan Documents, including, without limitation,
the foreclosure of its mortgage lien and other liens on and security interests
in the Property.
F.
As a
consequence of the Existing
Default, Lender is entitled to exercise all of its rights and remedies under
the Loan Documents, including, without limitation, the foreclosure of the Mortgage and other liens on and security interests in
the Property.
H.
Lender has
agreed to accept the conveyance of the Property pursuant
to this Agreement in order to
avoid the necessity of litigation, foreclosure and the delays associated
therewith and Lender acknowledges
a direct benefit in this regard.
I.
The Borrower and Lender are of the good faith
opinion that the value of the Covenant
constitutes
fair consideration for the Property.
J.
The Borrower
and Lender have agreed to enter into this Agreement (and certain other
documents) to provide for the transfer to Lender (or its designee) of all of
the right, title and interest in and to the Property in lieu of the Borrower and
Lender incurring the time, expense and inconvenience involved in pursuing and
defending against a foreclosure action and a collection action by Lender in
enforcing its other remedies under the Loan Documents.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby mutually acknowledged, the parties
hereto hereby agree as follows:
1.
Incorporation of Recitals. The
foregoing Recitals are hereby incorporated into the body of this Agreement as
if fully set forth herein.
2.
Transfers; Consideration. The Borrower
agree to transfer to Lender or Lender's nominee or designee (any such nominee
or designee being hereafter referred to as a "Designee"), and Lender agrees to accept
or cause Designee to accept, all of the Borrower’s right, title and interest in
the Property free of any right of redemption or any other right
or interest of anyone other than Lender claiming by, under or through the Borrower, but such conveyance shall
be subject to the "Permitted Title Matters" (as hereinafter
defined), including, without limitation, the Loan Documents. Such transfer by the Borrower to
Lender shall occur at _:__ a.m./p.m. Chicago time on March __, 2014 (the "Closing
Date") at the offices of Lender’s counsel: Harrison & Held, LLP, 333 W. Wacker
Drive, Suite 1700, Chicago, IL 60606 (the "Title Company")
through delivery of such deed, bill of sale, assignments and other transfer
documents as Lender may reasonably require, in the forms attached hereto as Exhibit B (the "Conveyance Documents"). In addition, at Closing, the
parties hereto shall execute and deliver the other documents described in Exhibit C
attached hereto (the "Other Closing Documents") to facilitate
the transfer of the Property to Lender or Designee, as applicable, and to
otherwise more fully express the agreements of the parties relating to such
transfer (the Conveyance Documents are also listed on Exhibit C and, together with the Other Closing
Documents are referred to herein collectively as the "Closing Documents"). The
consideration given by Lender and/or received by the Borrower in connection
with the transfer of the Property by the Borrower to Lender or Designee, as
applicable, includes, without limitation, (a) the cost savings to the Borrower
of not having to engage in legal proceedings relating to the exercise of
remedies under the Loan Documents by Lender and (b) the Covenant to be
delivered to the Borrower by Lender. The consideration
received by the Lender in connection with the transfer of the Property from the
Borrower to Lender or
Designee, as applicable, includes, without limitation, the cost savings and the
savings of time, delay and inconvenience that would be involved in exercising
the remedies available to Lender under the Loan Documents.
3.
Closing. The
consummation of the transactions contemplated hereunder (the "Closing")
shall occur on the Closing Date; provided, however, that such
transactions shall not be deemed to be effective until (a) the deed (the
"Deed") conveying title to Lender or its designee has been
recorded with the Recorder, and (b) the Title Company has issued to Lender
or Designee, as applicable, an ALTA owner's title policy in such amount as is
determined by Lender insuring title to the Real Property in Lender and
Designee, with full extended coverage over the general exceptions, and
otherwise in form and substance satisfactory to Lender or Designee, as
applicable, subject only to the exceptions set forth in the Existing Loan
Policy and any other encumbrances expressly agreed to by Lender (collectively "Permitted Title Matters"). The cost of the escrow Closing and
the aforesaid owner's title policy shall be borne by the Lender. The Deed shall not be recorded unless and
until Lender has directed the title Company to do so.
4.
Deliveries; Representations, Warranties and
Covenants.
(a)
Prior to
the date hereof, the Borrower has made available or delivered to Lender and its
representatives, or if not already delivered, will make available and deliver
to Lender within three (3) days prior to Closing, true and correct copies of
the following to the extent within the possession or control of the Borrower:
(i)
All
documents evidencing the Permitted Title Matters;
(ii)
Copies of the most recent and prior years’ real
estate and other tax bills for the Real Property and all correspondence related
to any appeals or contests to reduce the said taxes;
(iii)
A list
of all tangible Personal Property owned by the Borrower and used in the
operation of the Real Property;
(iv)
All
plans and specifications for the Improvements on the Real Property.
(v)
All
essential data, correspondence, documents, agreements, waivers, notices,
applications and other records in respect
to the Real Property and relating to transactions with taxing
authorities, governmental agencies, utilities, vendors, tenants, and others
with whom Lender may be dealing subsequent to Closing;
(vi)
All
existing plats of survey and site plans for the Real Property; and
(vii)
All statements of income and expense for the
Real Property for the calendar year 2013 and for year to date 2014.
(b)
The Borrower
represents and warrants to Lender as of the date hereof as follows (which
representations and warranties shall be deemed to be re-made as of the Closing
Date):
(i)
This
Agreement and the Closing Documents to be executed by the Borrower has been
duly authorized, executed and delivered by the Borrower and are legal, valid
and binding obligations and are enforceable in accordance with their respective
terms, and do not violate any provisions of any agreement executed by or
otherwise affecting the Borrower or the Property.
(ii)
The
transfer of the Property is made voluntarily by the Borrower with no intent to
defraud any creditors of the Borrower.
The Borrower is fully represented by counsel in connection with the
negotiation of this Agreement, and the transactions contemplated hereunder are
the free and voluntary act of the Borrower and such actions were not made under
duress.
(iii)
Borrower has not received any written notice from any
governmental authority of any violation of any law, zoning ordinance, code or
regulation affecting the Property (collectively "Legal Requirements")
which has not heretofore been cured.
There are no actions, suits, proceedings, judgments, orders, decrees,
pending or outstanding, or to the
Borrower’s knowledge, threatened against the
Property, which could adversely affect (A) the validity or enforceability
of the transactions contemplated hereunder or (B) the Property.
(iv)
All financial and operating statements (the "Financial
Statements") furnished to Lender by the Borrower in connection with the
transactions described in this Agreement are true, complete and correct in all
material respects as of the date given and fairly present the financial posture
of the parties or property described therein as of the period therein described
and do not omit to state any material asset or liability, contingent or
otherwise, or any facts necessary thereto, the omission of which would be
materially misleading as of the date furnished to Lender.
(v)
The execution of this Agreement and the Closing Documents
and the performance of the provisions hereof and thereof will not violate or
result in any breach or violation of, or constitute a default under, any law or
court order or any agreement, indenture, mortgage, deed of trust, bank loan or
credit agreement or other instrument to which any of the Borrower is a party or by which he or it is bound.
(vi)
There
are no Service Agreements affecting the Property.
(vii)
There
are no obligations in connection with the Real Property of any so-called
"recapture agreement" involving refunds for sewer extension,
oversizing utility, lighting, roads or like expense or charge for work or
services done upon or relating to the Real Property.
(viii)
The Improvements on the Real Property have been constructed in compliance
with all permits therefor and all Legal Requirements, and with all covenants,
easements and restrictions affecting the Property, and all obligations of the Borrower
or the Property with regard to the Legal Requirements, covenants, easements and
restrictions contained in the Permitted Title Exceptions have been and are
being performed in a proper and timely manner.
(ix)
There
are no written leases or agreements granting any person or entity a right to
use, possess or purchase the Property or any portion thereof.
(x)
To
the best of Borrower’s knowledge, prior to and during Borrower’s ownership of
the Property, (i) no Hazardous Materials (as defined below) have been
located on the Property or have been released into the environment, or
discharged, placed or disposed of at, on or under the Property; (ii) no
underground storage tanks have been located on the Property; (iii) the Property
has never been used as a dump for waste material; and (iv) the Property
and its prior uses comply with, and at all times have complied with, any
applicable governmental law, regulation
or requirement relating to environmental and occupational health and
safety matters and Hazardous Materials.
The
term "Hazardous Materials" shall mean any substance, material, waste,
gas or particulate matter which is regulated by any local governmental
authority, the State of Illinois, or the United States Government, including
but not limited to, any material or substance which is (i) defined as a
"hazardous waste," "hazardous material," "hazardous
substance," "extremely hazardous waste," or "restricted
hazardous waste" under any provision of Illinois law; (ii) petroleum;
(iii) asbestos; (iv) polychlorinated biphenyl; (v) radioactive
material; (vi designated as a "hazardous substance" pursuant to
Section 311 of the Clean Water Act, 33 U.S.C. §1251 et seq. (33 U.S.C. §1317); (vii) defined as a "hazardous
waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. §6901 et seq.
(42 U.S.C. §6903); or (viii) defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §9601 et seq. (42 U.S.C. §9601).
The term "Environmental Laws" shall mean all statutes
specifically described in the foregoing sentence and all federal, state and
local environmental health and safety statutes, ordinances, codes, rules,
regulations, orders and decrees regulating, relating to or imposing liability
or standards concerning or in connection with Hazardous Materials..
(xi)
There are no taxes due and
payable to any federal, state or local authority with respect the Property
other than the 2013 real property taxes not yet due and payable and the 2014
real estate property taxes payable in 2015.
(xii)
That the amount of the
outstanding indebtedness owing by the Borrower to Lender under the Loan
Documents exceeds the current value of the Property.
(xiii)
There
are no employees of Borrower.
(xiv)
Borrower
has not contracted for any labor or materials which have not been fully paid
for or which may give rise to a lien, encumbrance or charge upon the Property.
(xv)
There are no construction contracts pertaining to the Property.
(xvi)
That since the title date of ____________, 2014,
in the report on title issued by Chicago Title Insurance Company as Order No.
____________, Borrower has not done or suffered to be done anything that could
in any way affect title to the Property and that as of the recording of the
deed transferring title to the Real Property to Lender, and only the Permitted
Title Matters will show on title as set forth in Paragraph 3 hereinabove.
The Borrower, and its
successors, heirs, executors, administrators and assigns, agree to indemnify,
defend and hold Lender and its affiliates, employees, directors, officers,
shareholders, attorneys, agents, successors and assigns (collectively, "Indemnitees")
harmless from and against all losses, costs, damages and expenses, including
reasonable attorneys' fees and court costs, suffered or incurred by any of such
Indemnitees as a result of or in connection with any material misrepresentation
or fraud pertaining to any of the representations and warranties of the Borrower
set forth herein or in any of the Closing Documents.
(c)
The Borrower hereby acknowledges, covenants and agrees as
follows:
Between the date of
this Agreement and the Closing, without the prior written consent of Lender,
the Borrower shall not:
(i) Enter into
or modify any contracts or agreements pertaining to the Property;
(ii) Enter into
any written or oral leases of all or any portion of the Property; and
(iii) Convey or remove from the Real Property, or
from any other location where so located, any of the Personal Property or
Intangible Property. Lender shall have
the right inspect the Real Property prior to Closing.
(d)
Lender
represents and warrants to the Borrower as
of the date hereof as follows (which
representations and warranties shall be deemed to be made as of the Closing
Date):
(i)
This
Agreement and the Closing Documents to be executed by Lender have been duly
authorized, executed and delivered by Lender and are legal, valid and binding
obligations and are enforceable in accordance with their respective terms, and
do not violate any provisions of any agreement executed by or otherwise
affecting Lender or the Property.
(ii)
Lender
is the sole holder of all rights and interests of the Lender in, to and under
the Loan Documents and such interest is held free and clear of liens and
encumbrances in favor of any other party and has not been assigned to any third
party.
5.
Statement of Intent; No
Merger. Lender and the Borrower expressly state that
it is their desire and intention that no merger or other termination or
extinguishment of titles, estates or other interests shall occur as a result of
any of the assignments, conveyances or other transfers contemplated hereunder
or under the Closing Documents, even though Lender will become the owner of the
Real Property.
6.
Covenant Not To Sue;
Release.
(a)
Upon full and complete satisfaction of all required
conditions to Closing set forth herein by all parties hereto and subject to the
provisions of Subparagraphs 6(c) and (d) below, Lender shall deliver the
Covenant to the Borrower on the Closing Date.
The Covenant shall be in the form of Exhibit D
attached hereto. The Covenant shall not
(i) constitute a release of or operate to release, satisfy or discharge
the indebtedness, obligations or liabilities evidenced or secured by the Loan
Documents or any of the liens, mortgages and security interests created
thereby, (ii) constitute a release or operate to release, satisfy or
discharge the indebtedness, obligations or liability owing by any other person
or entity, and Lender expressly retains any and all rights it may have against
all other persons or entities, (iii) render ineffective or unenforceable Lender's
right to foreclose the Mortgage or to pursue any of its other rights or
remedies under the Loan Documents in any manner except that Lender shall have
no right to pursue or obtain a deficiency and/or a personal judgment or award
against the Borrower or any Borrower Related Party (as such term is defined in
the Covenant), (iv) otherwise affect the provisions of the Loan Documents,
(v) render ineffective or unenforceable Lender's right to collect any
amounts due from any Borrower with respect to any obligation to Lender which is
not related to the Loan, or (vi) render ineffective or unenforceable Lender's
right to enforce the provisions of Paragraph 5 hereof.
(b)
The Borrower hereby releases and discharges Lender, and its
respective affiliates, employees, directors, officers, shareholders, attorneys,
agents, successors and assigns of and from any and all agreements,
representations, warranties, covenants, indemnities, actions, claims, demands,
damages, debts, losses, indebtedness, causes of action either at law or in
equity and obligations of whatever kind or nature, whether known or unknown,
direct or indirect, new or existing and all other duties and liabilities which
any of them may have under or in connection with the Loan Documents or the
Payment Obligations.
(c)
Notwithstanding
anything contained in this Agreement to the contrary, neither the Covenant nor
the release set forth in Subparagraph 6(b) above nor any of the other
provisions hereof nor any provision of applicable law shall be deemed to
release, discharge or otherwise affect:
(i) any of the agreements, representations, warranties, covenants,
indemnities or other duties, obligations or liabilities of the parties hereto
as set forth in or arising from the provisions of this Agreement or the Closing
Documents; and (ii) any of the Borrower’s environmental indemnification
provisions set forth in any Loan Documents, which expressly survive the
Closing, the foreclosure of the Mortgage or
any deed or other transfer in lieu of such foreclosure.
(d)
Notwithstanding anything contained herein to the contrary,
the Covenant shall be null and void if:
(i)
any suit, action, claim or proceeding (A) to enjoin,
rescind or otherwise set aside the transfer of all or any portion of the
Property to Lender or any other
transactions consummated pursuant to this Agreement or the Closing Documents,
(B) to challenge the validity or enforceability of the transfer of the
Property to Lender or any of such other
transactions or (C) which might otherwise adversely affect the validity or
enforceability of the transfer of the Property to Lender or any of such other transactions (any such
suit, action, claim or proceeding being hereinafter referred to as an "Adverse
Proceeding") has been or is commenced or made by or on behalf of the Borrower
or any of their respective successors or assigns; or
(ii)
any Adverse Proceeding has been or is commenced or made by
any person or entity other than the Borrower, Lender (a "Third Party")
and, as a result of such Adverse Proceeding, Lender is obligated to convey (or
reconvey, as the case may be) all or any portion of the Property to Borrower or
to a receiver, trustee or other party for the benefit of the Borrower or any of
their respective creditors; or
(iii)
any Adverse Proceeding has been or is commenced or made by
or on behalf of the Borrower or any of their respective successors or assigns
and, as a result of such Adverse Proceeding, Lender suffers any loss, cost,
damage or expense against which the Borrower fail to fully indemnify, defend
and hold, Lender and its respective successors and assigns harmless as required
under subparagraph 6(e) below; or
(iv)
for any reason, the transfer, conveyance, assignment and
sale of the Property (or any portion thereof) to Lender is avoided by a federal
or state bankruptcy trustee or other trustee, liquidator or administrator or is
held to be void by a court of competent jurisdiction or if for any other reason
Lender is required to reconvey the Property (or any portion thereof) to Borrower
or its successors or assigns or to a receiver, administrator, liquidator,
bankruptcy trustee or other trustee (the events described above are herein
referred to as "Bankruptcy Events" and any one of the
Bankruptcy Events is herein referred to as a "Bankruptcy Event");
or
(v)
The Borrower breach a material term of any of their
respective obligations under this Agreement.
(e)
The Borrower hereby agrees to indemnify, defend (with
counsel reasonably satisfactory to Lender) and hold, Lender and its successors
and assigns harmless from and against any and all losses, damages, claims,
liability, costs and expenses (including court costs and reasonable attorneys'
fees) that may be suffered or incurred by, or threatened against, Lender or its
successors or assigns as a result of or in connection with any Adverse
Proceedings commenced by or on behalf of the Borrower or any of its respective
successors or assigns.
7.
Obligations to Third Parties. The Borrower hereby acknowledges and agrees that the acceptance
by Lender of title to the Property pursuant to the terms of this Agreement
shall not create any obligations on the part of Lender to third parties which
have or may have claims of any kind whatsoever against any of the Borrower with
respect to the Property, and that Lender does not assume, or agree to
discharge, any liabilities pertaining to the Property which occurred or accrued
prior to the Closing Date except to the extent otherwise expressly set forth in
the Closing Documents. No person not a
party to this Agreement shall have any "third party beneficiary" or
other rights hereunder.
8.
Future Assurances. The Borrower hereby
acknowledges and agrees that it shall hereafter execute and deliver, or cause
to be executed and delivered, and do or cause to be done such further acts as
may reasonably be deemed by Lender to be necessary or desirable to carry out
and effectuate the intent of this Agreement and the Closing Documents provided
that no such document shall increase the obligations of any of the Borrower or
reduce any of the rights of the Borrower.
Lender agrees that it shall hereafter execute and deliver, or cause to
be executed and delivered, and do or cause to be done such further acts as may
reasonably be deemed by the Borrower to be necessary or desirable to carry out
and effectuate the intent of this Agreement and the Closing Documents.
9.
Cooperation of Borrower. From
and after the Closing, at Lender's request, Borrower shall cooperate with Lender
in providing information concerning the Property to Lender, if and to the
extent requested by Lender.
10.
Reinstatement. If
(a) any part of the transactions contemplated by this Agreement or the
Conveyance Documents is avoided by a judgment or order entered by a court of
competent jurisdiction or otherwise rendered void, (b) the Lender, the
Designee or either of their respective successors or assigns is required to
reconvey to Borrower or any of its creditors any part of the Property or other
property contemplated to be conveyed to Lender hereunder, or (c) any sum
applied to reduce the amounts owing to Lender under the Loan Documents is
recovered by any person or entity (including, without limitation, a trustee in
bankruptcy for the Borrower) from the Lender, then the obligations of the
Borrower under the Loan Documents shall continue or be reinstated (as
applicable) as if any sums or property recovered from the Lender or the
Designee, as applicable, had never been received by the Lender or the Designee,
as applicable.
11.
Cash Collateral; Relief From Stay. The Borrower hereby acknowledges and agrees that in the event that the
Property or any portion thereof shall ever become the subject of any bankruptcy
or insolvency estate, then the Lender shall immediately become entitled, among
other relief to which the Lender may be entitled under the Loan Documents, and
at law or in equity, to obtain upon ex parte application
therefore and without further notice or action of any kind, (i) an order
from the court prohibiting the use by the trustee in bankruptcy, or by the
Borrower as debtor-in-possession, of the Lender’s "cash collateral"
(as such term is defined in Section 363 of the Bankruptcy Code) in
connection with the Loan, and (ii) an order from the Court granting immediate
relief from the automatic stay pursuant to Section 362 of the Bankruptcy
Code so as to permit the Lender to exercise all of its rights and remedies
pursuant to this Agreement and the Loan Documents, and at law and in equity,
and the Borrower further acknowledges and agrees that the occurrence or
existence of any Default under this Agreement shall, in and of itself,
constitute "cause" for relief from the automatic stay pursuant to the
provisions of Section 362(d)(1) of the Federal Bankruptcy Code, 11 U.S.C.
§ 362(d)(1).
12.
Foreclosure.
Notwithstanding anything contained herein to the contrary, Lender may
institute, maintain and prosecute an action or actions to foreclose the
Mortgage or any other security interest granted under the Loan Documents, subject,
in all events to the Covenant. In the
event Lender institutes any such foreclosure action, Lender may join Borrower in
any such foreclosure action and Borrower shall not in any manner oppose Lender
in said action and shall cooperate with Lender in order to facilitate the
foreclosure of any junior lien, interest, or encumbrance. The Covenant shall not be deemed to release
or extinguish the indebtedness or obligations secured by the Mortgage;
provided, however, that Lender covenants and agrees not to attempt to collect
any judgment out of or against the assets of Borrower, other than Borrower’s
interest, if any, in the Property or any other collateral securing the
Loan. The agreements of the Lender
herein provide full and adequate consideration for each of the rights granted Lender
hereunder, including but not limited to delivery of this Agreement, each of the
Closing Documents and any other documents referenced in the foregoing
agreements and the waiver of any rights of redemption that Borrower may have
under applicable law.
13.
Default. The occurrence of a
default by Borrower hereunder or under any of the Closing Documents shall
constitute a default by Borrower under this Agreement (a "Default").
14.
Remedies. In the event of the
occurrence of a Default by the Borrower, Lender shall be entitled to exercise
any and all rights and remedies available at law or in equity. The Borrower acknowledges and agrees that
money damages may not be an adequate remedy for a breach by the Borrower of any
of their respective agreements, covenants, representations, warranties,
indemnities or other duties or obligations under this Agreement or the Closing
Documents and that Lender shall have the absolute right to the remedies of
injunctive relief and specific performance, both temporary and permanent,
without bond, to enforce the agreements, covenants, representations,
warranties, indemnities and other duties and obligations of the Borrower under
this Agreement and the Closing Documents, which relief shall be cumulative and
not exclusive of any right, remedy or relief otherwise available to Lender at
law or in equity. Lender acknowledges
and agrees that money damages may not be an adequate remedy for a breach by Lender
of its agreements, covenants, representations, warranties, indemnities or other
duties or obligations under this Agreement or the Closing Documents and that
the Borrower shall have the absolute right to the remedies of injunctive relief
and specific performance, both temporary and permanent, without bond, to enforce
the agreements, covenants, representations, warranties, indemnities and other
duties and obligations of Lender under this Agreement and the Closing
Documents, which relief shall be cumulative and not exclusive of any right,
remedy or relief otherwise available to the Borrower at law or in equity. In the event of a breach or default by Lender
of any of its agreements, covenants, representations, warranties, indemnities
or other duties or obligations hereunder or under any of the Closing Documents,
the Borrower shall be entitled to exercise any and all rights and remedies
available at law or in equity.
15.
Survival. The obligations and
liabilities of the parties hereunder and under the Closing Documents are
intended to survive the Closing and shall not be deemed to be merged into any
deed or any other document delivered in connection with the Closing.
16.
Applicable Law. This Agreement and
the Closing Documents shall be construed and enforced in all respects in
accordance with the laws of the State of Illinois, excluding its choice of law
rules.
17.
Time. Time is of the
essence of this Agreement.
18.
Entire Agreement. This Agreement, the
Closing Documents and the Covenant contain the entire agreement between the
parties relating to the transaction contemplated hereby, and all prior or
contemporaneous agreements, understandings, representations and statements,
oral or written, are merged herein.
19.
Joint and Several
Liability; Successors. This Agreement shall be binding on and inure
to the benefit of the parties hereto, and their respective heirs, legatees,
executors, estates, legal representatives, assigns and other successors. Lender shall have the right to assign their
rights, title, obligations, duties and interests in this Agreement and the
Closing Documents directly or indirectly to any other person or entity. None of the Borrower shall have the right to
assign their respective obligations, duties or liabilities arising in
connection with this Agreement or the Closing Documents directly or indirectly
without the prior written consent of Lender.
20.
Counterparts. This Agreement may
be executed in any number of counterparts and each of such counterparts shall,
for all purposes, be deemed to be an original, and all such counterparts shall
together constitute but one and the same agreement.
21.
Severability. If any provision of
this Agreement or the Closing Documents or the application thereof to any party
or circumstance shall be determined by any court of competent jurisdiction to
be invalid or unenforceable to any extent, the remainder of this Agreement and
the Closing Documents or the application of such provision to persons or
circumstances, other than those as to which it is determined invalid or
unenforceable, shall not be affected thereby, and each provision of this Agreement
and the Closing Documents shall be valid and shall be enforced to the fullest
extent permitted by law.
22.
Captions. The captions in this
Agreement are inserted only as a matter of convenience and for reference and in
no way define, limit or describe the scope of this Agreement or the scope or
content of any of its provisions.
23.
Attorneys' Fees. The parties to this
Agreement shall each be responsible for paying their own attorneys' fees and
other costs with respect to the negotiation of this Agreement and the
consummation of the transactions contemplated hereby. In the event that any dispute between the
parties hereto should result in any legal action or proceeding, the prevailing
party shall be reimbursed by the losing party for all reasonable costs and attorneys'
fees, including, but not limited to, attorneys' fees incurred in the course of
appeal.
24.
Notices. Any notice, request
or demand given or made under this Agreement or any of the Closing Documents
shall be in writing and shall be hand delivered or sent by Federal Express or
other reputable courier service or by postage prepaid registered or certified
mail, return receipt requested, and shall be deemed given (i) when
received at the following applicable addresses if hand delivered or if sent by
Federal Express or other reputable courier service, and (ii) five (5)
business days after being postmarked and addressed as follows if sent by
registered or certified mail, return receipt requested:
If to Borrower:
|
Attn: _________________________
Telephone:
Facsimile:
|
With copy to:
|
Attn: _________________________
Telephone:
Facsimile:
|
If to Lender:
|
WELS
CHURCH EXTENSION FUND, INC.
2929
N. Mayfair Road
Milwaukee,
WI 53222
Attn: Ronald Hillman
Telephone: (414) 256-3236
Facsimile:
|
With copy to:
|
Harrison & Held, LLP
333 W. Wacker Drive, Suite 1700
Chicago, IL 60606-1247
Attn: Brad
S. Gerber, Esq.
Telephone:
(312) 540-4965
Facsimile:
(312) 753-6131
|
Any addresses or names specified above may be changed by a notice
given by the party desiring the change to the other parties in accordance with
the foregoing provisions.
25.
Transfers Absolute; No
Duress.
(a)
The Borrower acknowledges and agrees that: (i) the
transfer of the Property to Lender is an absolute conveyance and transfer of
all of the right, title and interest of the Borrower in and to the Property in
fact as well as form and is not intended as a mortgage, trust conveyance, deed
of trust or security instrument of any kind; (ii) the consideration for
such transfer is legally adequate and provides a reasonably equivalent value
for such transfer; and (iii) the Borrower has no further interest
(including rights of redemption) or claims in or to the Property or to the
proceeds and profits which after the Closing Date may be derived therefrom, of
any kind whatsoever.
(b)
The transfer of the Property to Lender and the other acts
taken and to be taken by the Borrower pursuant to this Agreement and the
Closing Documents are being made at the request of Borrower and are the free
and voluntary acts of the Borrower, and that in executing and delivering this
Agreement and the Closing Documents and in directing the execution thereof, the
Borrower are not acting under a misapprehension as to the effect thereof, nor
under any duress, undue influence or misrepresentation by Lender. The Borrower acknowledge that they have been
represented by competent and experienced legal counsel in connection with the
negotiation of this Agreement.
26.
WAIVER OF RIGHT TO TRIAL BY
JURY. THE
BORROWER, IRREVOCABLY WAIVES ALL RIGHTS TO A JURY TRIAL IN ANY ACTION, SUIT,
PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR IN ANY WAY RELATING TO
THE PAYMENT OBLIGATIONS, THE MORTGAGE, ANY OF THE OTHER LOAN DOCUMENTS, ANY OR
ALL OF THE REAL AND PERSONAL PROPERTY COLLATERAL SECURING THE PAYMENT
OBLIGATIONS, OR ANY OF THE TRANSACTIONS WHICH ARE CONTEMPLATED BY THE LOAN
DOCUMENTS OR THIS AGREEMENT. THE JURY
TRIAL WAIVER CONTAINED IN THIS SECTION IS INTENDED TO APPLY, TO THE FULLEST
EXTENT PERMITTED BY LAW, TO ANY AND ALL DISPUTES AND CONTROVERSIES THAT ARISE
OUT OF OR IN ANY WAY RELATE TO ANY OR ALL OF THE MATTERS DESCRIBED IN THE
PRECEDING SENTENCE, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS OF ANY KIND.
THE WAIVER CONTAINED IN THIS SECTION SHALL APPLY TO ALL SUBSEQUENT
EXTENSIONS, RENEWALS, MODIFICATIONS AND REPLACEMENTS OF ANY OR ALL OF THE LOAN
DOCUMENTS. THIS AGREEMENT MAY BE FILED
WITH ANY COURT OF COMPETENT JURISDICTION AS THE BORROWER’S WRITTEN CONSENT TO
THE BORROWER’S WAIVER OF A JURY TRIAL.
THE BORROWER HAS INITIALED THIS SECTION BELOW TO INDICATE THEIR
AGREEMENT WITH THE JURY TRIAL WAIVER AND OTHER TERMS CONTAINED IN THIS SECTION.
BORROWER’S INITIALS:
__________ __________
27.
REVIEW BY BORROWER WITH INDEPENDENT COUNSEL. THE
BORROWER ACKNOWLEDGES AND AGREES THAT: (A) THE BORROWER HAS CAREFULLY READ
AND UNDERSTANDS ALL OF THE TERMS OF THIS AGREEMENT; (B) THE BORROWER HAS
EXECUTED THIS AGREEMENT FREELY AND VOLUNTARILY, AFTER HAVING CONSULTED WITH ITS
INDEPENDENT LEGAL COUNSEL AND AFTER HAVING HAD ALL OF THE TERMS OF THIS
AGREEMENT EXPLAINED TO IT BY ITS INDEPENDENT LEGAL COUNSEL; (C) THE
WAIVERS AND RELEASE CONTAINED IN THIS AGREEMENT ARE REASONABLE, NOT CONTRARY TO
PUBLIC POLICY OR LAW, AND HAVE BEEN INTENTIONALLY, INTELLIGENTLY, KNOWINGLY AND
VOLUNTARILY AGREED TO BY THE BORROWER; (D) THE WAIVERS AND RELEASE
CONTAINED IN THIS AGREEMENT HAVE BEEN AGREED TO BY THE BORROWER WITH FULL
KNOWLEDGE OF ITS SIGNIFICANCE AND CONSEQUENCES, INCLUDING FULL KNOWLEDGE OF THE
SPECIFIC NATURE OF ANY RIGHTS OR DEFENSES WHICH THE BORROWER HAS AGREED TO
WAIVE OR RELEASE PURSUANT TO THIS AGREEMENT; (E) THE BORROWER HAS HAD A
FULL AND ADEQUATE OPPORTUNITY TO NEGOTIATE THE TERMS CONTAINED IN THIS
AGREEMENT; (F) THE BORROWER IS EXPERIENCED IN AND FAMILIAR WITH
TRANSACTIONS OF THE TYPE EVIDENCED BY THIS AGREEMENT; AND (G) THE WAIVERS
AND RELEASE CONTAINED IN THIS AGREEMENT ARE MATERIAL INDUCEMENTS TO THE LENDER'S
EXECUTION OF THIS AGREEMENT, AND THE LENDER HAS RELIED ON SUCH WAIVERS AND
RELEASE IN ENTERING INTO THIS AGREEMENT AND WILL CONTINUE TO RELY ON SUCH
WAIVERS AND RELEASE IN ANY RELATED FUTURE DEALINGS WITH THE BORROWER.
[Remainder of Page
Intentionally Left Blank;
Signature Page
Follows]
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the day and year first above written.
BORROWER:
STAR OF BETHLEHEM EVANGELICAL LUTHERAN
CHURCH, an Illinois religious corporation
By:__________________________________
Name::_______________________________
Title:
________________________________
|
|
|
LENDER:
WELS CHURCH
EXTENSION FUND, INC., a Wisconsin corporation
By: _____________________________
Name: _____________________________
Title: _____________________________
|
SCHEDULE OF EXHIBITS
A - Legal
Description of Real Property
B - Form of
Conveyance Documents
C - List
of Closing Documents
D - Form
of Covenant Not To Sue
E - Schedule
of Personal Property
FORM OF CONVEYANCE
DOCUMENTS
SPECIAL WARRANTY
DEED
|
|
|
THIS INDENTURE, made this ___ day of March,
2014, between Star of Bethlehem Evangelical Lutheran Church, an Illinois
religious corporation ("Grantor"), party of the first part and WELS
CHURCH EXTENSION FUND, INC., a Wisconsin corporation ("Grantee"),
WITNESSETH, that the Grantor, for and in consideration of the sum of TEN AND
NO/100ths DOLLARS ($10.00) and good and other valuable consideration in hand
paid by the Grantee, the receipt whereof is hereby acknowledged, and pursuant
to authority of the Members of said company, by these presents does REMISE,
RELEASE, ALIEN AND CONVEY unto Grantee, and to its successors and assigns,
FOREVER, all the following described real property (the "Real
Property"), situated in the County of Champaign and State of Illinois,
to wit: (see legal description set
forth on Exhibit A
attached hereto).
|
|
Together with all
and singular the hereditaments and appurtenances thereunto belonging, or in
anywise appertaining, and the reversion and reversions, remainder and
remainders, rents, issues and profits thereof, and all the estate, right,
title, interest, claim or demand whatsoever, of Grantor, either in law or
equity, of, in and to the below described premises, with the hereditaments
and appurtenances: TO HAVE AND TO HOLD
the said Real Property as described on Exhibit
A attached hereto, with the appurtenances, unto Grantee, its successors
and assigns forever.
|
|
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And the said Grantor hereby expressly
waives and releases any and all right or benefit under and by virtue of any and
all statutes of the State of Illinois, providing for the exemption of
homesteads from the sale on execution or otherwise.
And
Grantor, for itself, and its successors, does covenant, promise and agree, to
and with the Grantee, its successors or assigns, that it has not done or
suffered to be done, anything whereby the said Real Property hereby granted
are, or may be, in any manner encumbered or charged, except as herein recited;
and that it WILL WARRANT AND DEFEND, the said Real Property, against all
persons lawfully claiming, or to claim the same, by through, or under it,
subject to: the matters set forth on Exhibit B
attached hereto and made a part hereof.
Permanent Real Property Index Number: 03-20-36-400-032
IN
WITNESS WHEREOF, said Grantor has caused its name to be signed to these
presents by its ______________, the day and year first above written.
Exempt under Provisions of
Paragraph (L) Section 31-45,
Property Tax Code.
Date:_____________________
_________________________
Grantor
|
|
GRANTOR:
STAR OF BETHLEHEM
EVANGELICAL LUTHERAN CHURCH, an Illinois religious corporation
By:_________________________________________
Name:_______________________________
Title:________________________________
|
STATE OF
ILLINOIS )
) ss. ACKNOWLEDGMENT
COUNTY OF
_______________________ )
I, the
undersigned, a Notary Public in and for said County, in the State aforesaid, do
hereby certify that ____________________________, personally known to be the
______________ of STAR OF BETHLEHEM EVANGELICAL LUTHERAN CHURCH, an Illinois religious
corporation, appeared before me this day in person and acknowledged that he/she
signed, sealed and delivered said instrument as his/her own fee and voluntary
act of said entity, for the uses and purposes therein set forth.
Witness my hand an Notarial Seal this ______
day of _________________, 201_.
_________________________________
Notary Public
WITNESS
MY HAND and Notarial Seal this ___ day of ____, 2014
This instrument was prepared by:
Harrison & Held, LLP
333 W. Wacker Drive
Suite 1700
Chicago, IL 60606
Attn.:
Brad S. Gerber
|
|
AFTER RECORDING MAIL TO:
Harrison & Held, LLP
333 W. Wacker Drive
Suite 1700
Chicago, IL 60606
Attn.:
Brad S. Gerber
|
SEND SUBSEQUENT TAX BILLS TO:
____________________________________
____________________________________
____________________________________
Attn: _______________________
|
EXHIBIT A
Legal Description
LOT
1 OF PRAIRIE FIELDS SOUTHEAST SUBDIVISION, AS PER PLAT RECORDED APRIL 5, 2004
AS DOCUMENT 2004R 09164, IN CHAMPAIGN COUNTY, ILLINOIS
Tax
Key Number: 03-20-36-400-032
EXHIBIT B
Permitted Exceptions
1. General Real Property taxes which are
not yet due and payable for calendar year 2013 and subsequent years.
2. The rights of all persons claiming by,
through or under Grantee.
3. Any liens, claims, encumbrances or
exceptions to title arising from or otherwise due to actions of Grantee.
4. Exception Numbers 7, 8, 9, 10, 11, 12,
13 and 14 contained on Schedule B of the title commitment issued by Lawyers
Title Insurance Company, Commitment Number 82307-78961977.
BILL OF SALE
This Bill of Sale ("Bill of Sale")
is made and executed as of __________, 2014 by STAR OF BETHLEHEM EVANGELICAL LUTHERAN CHURCH, an Illinois
religious corporation ("Grantor"), in favor of WELS CHURCH
EXTENSION FUND, INC., a Wisconsin corporation ("Grantee").
R
E C I T A L S:
A.
Pursuant
to the terms of that certain Deed in Lieu of Foreclosure Agreement (the "Agreement") dated
as of March __ 2014, by and among Grantor and Grantee, Grantor has,
concurrently with the execution of this Bill of Sale, conveyed to Grantee (as
Designee of Lender) all of Grantor's right, title and interest in and to
certain real property located in Sangamon County, Illinois, as more
particularly described in Exhibit A attached hereto and
incorporated herein by this reference (the "Real Property"). Capitalized terms not otherwise defined
herein shall have the meanings given to such terms in the Agreement.
B.
Grantor
desires, in conjunction with the conveyance of the Real Property by Grantor to
Grantee, to convey to Grantee all of the Personal Property (as defined herein).
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Grantor agrees as follows:
1.
Grantor
hereby grants, transfers, conveys and delivers to Grantee all of Grantor's
right, title and interest in and to all personal property of every kind and
description, whether now existing or later acquired, which now is, or which at
any later time may be, attached to, erected upon, situated in or upon, forming
a part of, appurtenant to, used or useful in the construction or operation of or
in connection with, or arising from the use or enjoyment of all or any part of,
or from any lease or agreement pertaining to, the Real Property (herein
collectively referred to as the "Personal Property"), including,
without limitation:
(a)
All of
the personal property listed on Exhibit B attached hereto;
(b)
All
fixtures and improvements located on the Real Property;
(c)
All
goods, materials, supplies, chattels, furniture, fixtures, equipment and
machinery now or later to be attached to, placed in or on, or used in connection
with the use, enjoyment, occupancy or operation of all or any part of the Real
Property, whether stored on the Real Property or elsewhere, including all
pumping plants, engines, pipes, ditches and flumes, and also all gas, electric,
cooking, heating, cooling, air conditioning, lighting, refrigeration and
plumbing fixtures and equipment; and
(d)
All
building materials, equipment, work in progress or other personal property of
any kind, whether stored on the Real Property or elsewhere, which have been or
later will be acquired for the purpose of being delivered to, incorporated into
or installed in or about the Real Property.
2.
Grantor
hereby represents and warrants that (i) it is the lawful owner of all of
the Personal Property and (ii) Grantor has the right to sell and transfer
the Personal Property to Grantee.
3.
At any
time or from time to time upon the request of Grantee, Grantor shall execute
such additional documents and instruments and shall do such additional acts and
things as Grantee may reasonably request in order to fully effectuate the
purposes of this Bill of Sale. Grantor
agrees to use reasonable efforts to cooperate with Grantee to secure to Grantee
all benefits of the Personal Property.
4.
In the
event that Grantor or Grantee shall bring any action or suit against the other
party by reason of any breach by the other party of any of the covenants,
conditions, representations, warranties, agreements or provisions contained in
this Bill of Sale on the part of the other party, the party in whose favor
final judgment shall be entered shall be entitled to recover from the other
party all costs and expenses of suit, including reasonable attorneys' fees as
awarded by a court of competent jurisdiction.
5.
The
provisions of this Bill of Sale shall be binding upon the successors and
assigns of Grantor, and shall inure to the benefit of the successors and
assigns of Grantee.
IN
WITNESS WHEREOF, Grantor has executed this Bill of Sale as of the date first
above written.
GRANTOR:
STAR OF
BETHLEHEM EVANGELICAL LUTHERAN CHURCH, an Illinois religious corporation
By:____________________________________________
Name:__________________________________
Title:____________________________________
EXHIBIT A
Legal Description of
Real Property
LOT
1 OF PRAIRIE FIELDS SOUTHEAST SUBDIVISION, AS PER PLAT RECORDED APRIL 5, 2004
AS DOCUMENT 2004R 09164, IN CHAMPAIGN COUNTY, ILLINOIS
Tax
Key Number: 03-20-36-400-032
EXHIBIT B
List of Personal
Property
ASSIGNMENT AND
ASSUMPTION OF
CONTRACTS AND INTANGIBLE PROPERTY
THIS
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND INTANGIBLE PROPERTY (this
"Assignment") is made as of _____________, 2014 by and between STAR OF BETHLEHEM EVANGELICAL LUTHERAN CHURCH,
an Illinois religious corporation ("Assignor"), and WELS
CHURCH EXTENSION FUND, INC., a Wisconsin corporation ("Assignee").
R
E C I T A L S:
A.
Pursuant
to the terms of that certain Deed in Lieu of Foreclosure Agreement (the
"Agreement") dated as of March __ 2014, by and between Assignor, and Assignee,
Assignor has concurrently with the execution of this Assignment conveyed to
Assignee (as Designee of Lender) all of Assignor's right, title and interest in
and to certain real property located in Champaign County, Illinois as more
particularly described in Exhibit A attached hereto and
incorporated herein by this reference (the "Real Property"). Capitalized terms not otherwise defined
herein shall have the meanings given to such terms in the Agreement.
B.
Assignor
desires, in conjunction with the conveyance of the Real Property by Assignor to
Assignee, to assign to Assignee all of Assignor's right, title and interest in
and to the Service Agreements listed on Exhibit B attached
hereto and the Intangible Property (as defined herein).
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor agrees as follows:
1.
Subject
to the provisions of the Agreement and any limitations set forth therein,
Assignor hereby quitclaims, assigns, transfers and conveys to Assignee,
pursuant to and in accordance with the terms of the Agreement, all of
Assignor's right, title and interest in and to the Service Agreements, if
any, and the Intangible Property, if any.
For purposes of this Assignment, the term "Intangible
Property" shall mean, collectively, the following pertaining to the
Property:
(a)
all
licenses and permits pertaining to the ownership or operation of the Real
Property, to the extent assignable;
(b)
All
rights to the payment of money, accounts, accounts receivable, reserves,
deferred payments, refunds (including without limitation any and all property
tax refunds now or hereafter made with respect to property taxes paid prior to
the date of this Assignment), cost savings, payments and deposits, whether now
or later to be received from third parties or deposited by Assignor with third
parties (including all utility deposits, refunds and reimbursements), contract
rights, development and use rights, governmental applications, architectural
and engineering plans, specifications and drawings, as-built drawings, ALTA
surveys, chattel paper, instruments, documents, notes, drafts and letters of
credit, which arise from or relate to construction on and ownership of the Real
Property;
(c)
All
condemnation or insurance awards or payments with respect to the Real Property,
and all causes of action and their proceeds for any damage or injury to the
Real Property, or the other property described above or any part of them, or
breach of warranty in connection with the construction of any improvements on
the Real Property, including causes of action arising in tort, contract, fraud
or concealment of a material fact;
(d)
All
books and records needed for the ownership or operation of the Real Property,
including computer-readable memory and any computer hardware or software
necessary to access and process such memory;
(e)
All
rights to the operating accounts pertaining to the Real Property to the extent
that funds remain in such operating accounts after payment of all expenses
incurred by Assignor in the ordinary course of owning and operating the Real
Property prior to the Closing Date; and
(f)
All
proceeds of, additions and accretions to, substitutions and replacements for,
and changes in any of the property described above, including all proceeds of
any voluntary or involuntary disposition or claim respecting any such property
(arising out of any judgment, condemnation or award, or otherwise arising) and
all goods, documents, general intangibles, chattel paper and accounts, wherever
located, acquired with cash proceeds of any of the foregoing or its proceeds.
2.
Assignee
does hereby assume and agree to perform all of Assignor's obligations under the
Service Agreements and the Intangible Property accruing on and after the
Closing Date.
3.
Assignor
hereby represents and warrants that there are no monetary defaults and, to the
best of Assignor's knowledge, no events which, with notice or the passage of
time or both would constitute a monetary default under any Service Agreement.
4.
Assignee
accepts the assignment of Assignor's right, title and interest in and to the
Service Agreement and Intangible Property as an "as is,"
"whereas" assignment, and Assignee acknowledges that except as
otherwise set forth in Section 3 above, such assignment is being made
without any representation or warranty, express or implied whatsoever.
5.
This
Assignment shall be binding upon and inure to the benefit of Assignor and
Assignee and their respective successors and assigns.
6.
At any
time or from time to time upon the request of the other party, such party shall
execute such additional documents and instruments and shall do such additional
acts and things as may reasonably be requested in order to fully effectuate the
purposes of this Assignment.
7.
In the
event that Assignor or Assignee shall bring any action or suit against the
other party by reason of any breach by the other party of any of the covenants,
conditions, representations, warranties, agreements or provisions contained in
this Assignment on the part of the other party, the party in whose favor final
judgment shall be entered shall be entitled to recover from the other party all
costs and expenses of suit, including reasonable attorneys' fees as awarded by
a court of competent jurisdiction.
8.
This
Assignment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
IN
WITNESS WHEREOF, Assignor and Assignee have each executed this Assignment as of
the date first written above.
ASSIGNOR:
STAR OF BETHLEHEM EVANGELICAL LUTHERAN
CHURCH, an Illinois religious corporation
By:__________________________________
Name::_______________________________
Title:
________________________________
|
|
|
ASSIGNEE:
WELS CHURCH
EXTENSION FUND, INC., a Wisconsin corporation
By: _____________________________
Name: _____________________________
Title: _____________________________
|
ASSIGNMENT AND ASSUMPTION OF
LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT AND
ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this “Assignment”) is made as of March
__, 2014 by and between STAR OF
BETHLEHEM EVANGELICAL LUTHERAN CHURCH, an Illinois religious corporation
("Assignor"), and WELS CHURCH EXTENSION FUND, INC., a Wisconsin
corporation ("Assignee").
R
E C I T A L S:
A.
Pursuant to the terms of that certain Deed in Lieu of Foreclosure Agreement (the “Agreement”) dated as of
____________, ____, by and among Assignor,
__________________________________________, and Assignee, Assignor has,
concurrently with the execution of this Assignment and Assumption of Leases and
Security Deposits, conveyed to Assignee all of Assignor’s right, title and
interest in and to certain real property located in ________________ County,
____________, as more particularly described in Exhibit “A”
attached hereto and incorporated herein by this reference (the “Real
Property”). Capitalized terms not
otherwise defined herein shall have the meanings given to such terms in the
Agreement.
Assignor desires, in conjunction with the
conveyance of the Real Property by Assignor to Assignee, to assign to Assignee
all of Assignor’s right, title and interest in and to the leases listed on Exhibit
“B” attached hereto.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor agrees as follows:
Subject to the provisions
of the Agreement and any limitations set forth therein, Assignor hereby
assigns, transfers and conveys to assignee, pursuant to and in accordance with
the terms of the Agreement, all of Assignor’s right, title and interest in and
to the following: (i) the Leases listed
on Exhibit B attached hereto; (ii) all of the rents, issues and
all other sums payable under the Leases (collectively, “Rents”), including all
such Rent accrued prior to the date of Closing but heretofore not paid to
Assignor or used to pay operating expenses; (iii) any cash security deposits
under the Leases (the “Security Deposits”) to the extent that same have not
been applied prior to the date hereof to delinquent sums or other amounts owing
under the respective Leases; and (iv) any guarantees of the obligations under
the Leases.
Assignee does hereby assume
and agree to perform all of Assignor’s obligations under the Leases first
accruing on and after the date of Closing.
Assignor hereby represents
and warrants that (i) it is the lessor under all of the Leases, (ii) Assignor’s
interest in the Leases and the Security Deposits is held free and clear of any
claims, liens, security interests or encumbrances of any nature whatsoever,
except those of Assignee under the Beltway Loan Documents, (iii) there are no
defaults and, to the best of Assignor’s knowledge, no events which, with notice
or the passage of time or both would constitute a monetary default under any of
the Leases, (iv) Assignor has the right to assign its rights and obligations
under the Leases to Assignee, and (v) Assignor will warrant and defend the same
against the claims and demands of any and all persons entitled whomsoever.
This Assignment shall be
binding upon and inure to the benefit of Assignor and Assignee and their
respective successors and assigns.
At any time or from time to
time upon the request of Assignee, Assignor shall execute such additional
documents and instruments and shall do such additional acts and things as
Assignee may reasonably request in order to fully effectuate the purposes of
this Assignment.
In the event that Assignor
or Assignee shall bring any action or suit against the other party by reason of
any breach by the other party of any of the covenants, conditions,
representations, warranties, agreements or provisions contained in this
Assignment on the part of the other party, the party in whose favor final
judgment shall be entered shall be entitled to recover from the other party all
costs and expenses of suit, including reasonable attorneys’ fees as awarded by
a court of competent jurisdiction.
This Assignment may be
executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, Assignor and Assignee have each
executed this Assignment as of the date first written above.
ASSIGNOR:
STAR OF
BETHLEHEM EVANGELICAL LUTHERAN CHURCH, an Illinois religious corporation
By:
Name:
Title:
ASSIGNEE:
WELS CHURCH EXTENSION FUND, INC., a Wisconsin
corporation
By:
Name:
Title:
THIS
COVENANT NOT TO SUE
is made as of this ____ day of _______________, 2014, by WELS CHURCH EXTENSION
FUND, INC., a Wisconsin corporation ("Lender") and STAR OF BETHLEHEM EVANGELICAL LUTHERAN CHURCH,
an Illinois religious corporation ("Borrower").
This
Covenant Not To Sue is being executed and delivered pursuant to that certain
Deed in Lieu of Foreclosure Agreement dated as of March __ 2014, by and among
the Lender and the Borrower ("Agreement"). Terms appearing as initially capitalized
terms and not expressly defined herein shall have the respective meanings given
them in the Agreement.
In
consideration of the mutual covenants and agreements contained herein and in
the Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and for the purposes stated in
the preceding paragraph, the Lender hereby agrees as follows:
1.
The Lender, for itself and its successors and
assigns (the "Covenantors"), for and in consideration of the
execution and delivery of the Agreement and the transfer of all of the right,
title and interest of the Borrower in and to the Property, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does hereby covenant and agree not to sue or commence, assert,
bring, file or continue in any court or other tribunal, in any jurisdiction,
any suit, action, litigation, complaint, counterclaim, cross-claim, cross-
complaint, third-party complaint or other pleading for any actions or causes of
action of every kind and nature whatsoever, whether fixed or contingent, known
or unknown, direct or indirect, and whether based on contract, tort, statute or
other legal or equitable theory of recovery ("Claim" or "Claims"),
which the Covenantors have had, have or hereafter may have against the Borrower,
or any of their respective heirs, legal representatives, successors or assigns
(collectively, the "BORROWER’S Related Parties"), with respect
to, or in any way arising from, related to or connected with, the Property, the
Payment Obligations or the Loan Documents, except as expressly set forth
herein.
2.
Notwithstanding
anything to the contrary set forth herein, this Covenant Not To Sue shall not
apply to, constitute a release of or operate to discharge or otherwise affect:
(i) any of the indebtedness, obligations or liabilities evidenced or
secured by the Loan Documents; (ii) any rights, Claims or causes of
action based on any breach of any of the covenants, agreements, warranties,
representations, duties, obligations or other liabilities of the Borrower as
set forth in or arising from the provisions of the Agreement or any of the
Closing Documents; (iii) any action brought by the Lender under the Loan
Documents, at law or in equity for the purpose of obtaining from Borrower title
to or easement or other rights in the Property or enforcing its other rights
and remedies under the Loan Documents, at law or in equity, where no monetary
or other Claims are asserted against the Borrower or any BORROWER’S Related
Parties; provided, however, that the Lender covenants and agrees not to assert
any Claim against the Borrower or any Borrower Related Party personally in
connection with the Loan Documents or the Property or to attempt to collect any
judgment out of or against the assets of the Borrower or any Borrower Related
Parties in connection with the Loan Documents or the Property, other than the BORROWER’S
interest in the Property (if any), except as otherwise expressly provided
herein; (iv) any action brought by the Lender to enforce the provisions of
or pursue collection of amounts due under the environmental indemnity
provisions set forth in the Loan Documents; if any, and (v) render
ineffective or unenforceable Lender’s right to collect any amounts due from any
Borrower with respect to any obligation to Lender which is not related to the
Loan Documents or the Payment Obligations.
3.
The
Covenantors further expressly warrant and represent that they have not sold,
granted, transferred or assigned or caused to be sold, granted, transferred or
assigned to any other person or entity any Claim which the Covenantors may have
against the Borrower or any Borrower Related Parties in connection with, or in
any way related to or arising out of, the Property, the Loan, the Loan
Documents or the Agreement.
4.
Notwithstanding
anything contained herein to the contrary, the Covenant shall be null and void
if:
(i)
any
Adverse Proceeding has been or is commenced or made by or on behalf of the Borrower,
the Borrower Related Parties or any of their respective successors or assigns;
or
(ii)
any
Adverse Proceeding has been or is commenced or made by a Third Party and, as a
result of such Adverse Proceeding, Lender is obligated to convey (or reconvey,
as the case may be) all or any portion of the Property to one or more of the Borrower
or to a receiver, trustee or other party for the benefit of the Borrower or any
of their respective creditors; or
(iii)
any
Adverse Proceeding has been or is commenced or made by the Borrower, the BORROWER’S
Related Parties or any of their respective successors or assigns and, as a
result of such Adverse Proceeding, the Lender suffers any loss, cost, damage or
expense against which the Borrower fail to fully indemnify, defend and hold the
Lender and their respective successors and assigns harmless as required under
the terms of the Agreement; or
(iv)
the Borrower
breach any of their respective obligations under the Agreement, including a
breach of their representation set forth in Section 4(b)(xvii) of the
Agreement.
5.
Notwithstanding
any other provision of this Covenant Not To Sue, if any of the transactions
contemplated by the Agreement are set aside or nullified by any federal or
state court in any proceeding whatsoever, then, at the election of the Lender,
this Covenant Not To Sue shall be of no force and effect. Upon any such election by the Lender, the
Covenantors shall have any and all rights and remedies available to them
pursuant to: (i) the Loan Documents, the Agreement or any documents
referred to in the Agreement or (ii) local, state and/or federal statute,
ordinance, order, rule or regulation, or common law (whether at law or in
equity) as if this Covenant Not To Sue had never been executed.
6.
In the
event of a conflict between any term or provision of the Agreement and any term
or provision of this Covenant Not To Sue, the term or provision of this
Covenant Not To Sue shall govern.
7.
The
undersigned represents and warrants that it has full power and authority to
execute this Covenant Not To Sue for and on behalf of the Lender and that this
Covenant Not To Sue is binding upon and enforceable against Lender in
accordance with its terms.
IN
WITNESS WHEREOF, this Covenant Not To Sue has been signed and delivered as of
the date first written above.
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LENDER:
WELS
CHURCH EXTENSION FUND, INC., a Wisconsin corporation
By:_______________________________________
Name:____________________________________
Title:______________________________________
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