Exhibit 4.2
Drafted by and when recorded
mail to:
Mark Ovington, Esq.
Stinson Morrison Hecker LLP
1201 Walnut Street, Suite 2900
Kansas City, Missouri 64106
MORTGAGE, SECURITY
AGREEMENT,
ASSIGNMENT OF LEASES AND
RENTS
AND FIXTURE FILING
(secures future advances and
future obligations, but Maximum Amount Secured, as defined in and
subject to the provisions of Section 1 below, equals
$19,700,000)
This Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Filing (the “
Mortgage ”) is given as of November 7, 2008, by
MGP INGREDIENTS, INC., a Kansas corporation formerly known as
Midwest Grain Products, Inc. and, before that, as Midwest
Solvents Company, Inc. and as successor by merger to Midwest
Grain Processing Equipment Company, Inc. (the “
Borrower ”), with an office located at Cray Business
Plaza, 100 Commercial Street, Atchison, Kansas 66002, to COMMERCE
BANK, N.A., a national banking association, as Agent for the Banks
from time to time party to the Credit Agreement referred to below
(in such capacity, the “ Agent ”), with an
office located at 1000 Walnut Street, Kansas City, Missouri
64105.
WHEREAS, Borrower is the owner of
the real property and improvements thereon legally described on
Exhibit A attached hereto;
WHEREAS, Borrower was formerly known
as Midwest Solvents Company, Inc. and acquired under such
former name Parcels 1 and 50 described on Exhibit A attached
hereto;
WHEREAS, Borrower was also formerly
known as Midwest Grain Products, Inc. and acquired under such
former name Parcels 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15,
16, 17, 27, 28, 29, 30, 31, 32, 33, 34, 37, 38, 39, 40, 42, 43, 44
and 48 described on Exhibit A attached hereto;
WHEREAS, Midwest Grain Processing
Equipment Company, Inc., also sometimes referred to as Midwest
Grain Processing Equipment Co., Inc. and Midwest Grain
Processing Equipment Company, acquired Parcels 18, 19, 20, 21, 22,
23, 25, 35 and 46 described on Exhibit A attached hereto under
the name Midwest Grain Processing Equipment Company, Inc., and
acquired Parcels 24, 26, 47 and 49 described on Exhibit A
attached hereto under the name Midwest Grain Processing Equipment
Co., Inc., and acquired Parcel 45 described on Exhibit A
attached hereto under the name Midwest Grain Processing Equipment
Company, in each case before Midwest Grain Processing Equipment
Company, Inc. was merged with and into Borrower, with Borrower
being the sole surviving entity;
WHEREAS, Borrower has incurred and
may hereafter incur indebtedness under the Credit Agreement, dated
as of May 5, 2008, among Borrower, certain other
borrower(s) thereunder (collectively, whether one or more, the
“ Other Borrower ”), Commerce Bank, N.A., as
Agent, Issuing Bank and Swingline Lender, and the Banks party
thereto, as amended by a First Amendment to Credit Agreement dated
as of September 3, 2008, a letter agreement dated
October 31, 2008, and a Second Amendment to Credit Agreement
dated on or about the date hereof (as so amended and as otherwise
amended, renewed, restated, replaced, consolidated or otherwise
modified from time to time, the “ Credit Agreement
”), pursuant to which the Banks have agreed or may elect, in
each case subject to the terms and conditions thereof and as of the
date hereof, to extend credit to or for the benefit of Borrower
and/or Other Borrower in an aggregate outstanding principal amount
not to exceed $55,000,000 at any time;
WHEREAS, Borrower’s and Other
Borrower’s obligations to the Banks under the Credit
Agreement are evidenced by the following promissory notes:
(a) an Amended and Restated Revolving Credit Note, dated on or
about September 3, 2008, from Borrower and Other Borrower, as
makers, to Commerce Bank, N.A., as payee, in the stated principal
amount of $21,175,000; (b) an Amended and Restated Revolving
Credit Note, dated on or about September 3, 2008, from
Borrower and Other Borrower, as makers, to BMO Capital Markets
Financing, Inc., as payee, in the stated principal amount of
$16,912,500; (c) an Amended and Restated Revolving Credit
Note, dated on or about September 3, 2008, from Borrower and
Other Borrower, as makers, to National City Bank, as payee, in the
stated principal amount of $16,912,500; and (d) a Swingline
Note, dated on or about May 5, 2008, from Borrower and Other
Borrower, as makers, to Commerce Bank, N.A., as payee, in the
stated principal amount of $5,000,000;
WHEREAS, the foregoing promissory
notes and any other promissory notes issued on or after the date
hereof under the Credit Agreement — whether payable to the
above specifically identified Banks or their respective permitted
assignees under the Credit Agreement or to other lenders who may
hereafter become Banks under the Credit Agreement or their
respective permitted assignees under the Credit Agreement —
as any of the foregoing may be amended, renewed, restated,
replaced, consolidated or otherwise modified from time to time, are
collectively referred to herein as the “ Notes ”
and are individually referred to herein as a “ Note
”;
WHEREAS, Borrower’s and Other
Borrower’s obligations under the Credit Agreement, the Notes,
this Mortgage and any other Credit Documents (as defined in the
Credit Agreement), whether monetary, nonmonetary, direct, indirect,
acquired, joint, several, joint and several, existing, future,
contingent or otherwise, and any replacements, renewals, extensions
and other modifications of any of the above, together with all
principal, premium, interest, fees, expenses and other amounts and
charges relating thereto, and any amounts expended by or on behalf
of Agent or any Bank for the protection and preservation of the
mortgage lien and security interest granted herein, are hereinafter
sometimes collectively called the “ Obligations
”; and
WHEREAS, any agreements, documents
or instruments evidencing, securing or otherwise relating to any of
the Obligations (including, without limitation, any of the Credit
Documents, as defined
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in the Credit Agreement), and any amendments,
restatements, replacements, consolidations and other modifications
of any of the foregoing are hereinafter sometimes collectively
called the “ Credit Documents .”
NOW, THEREFORE, to secure the full
and prompt payment and performance of the Obligations, Borrower
hereby mortgages and warrants to Agent, on behalf of the Banks, and
grants to Agent on behalf of the Banks, a security interest in, all
of Borrower’s right, title and interest in and to the
following property, whether such property or interest therein is
now owned or existing or hereafter acquired or arising
(collectively, the “ Property ”): (a) all
of the tracts, parcels or other units of land described in
Exhibit A attached hereto (the “ Premises
”); (b) all of the buildings, structures and other
improvements now or hereafter situated on the Premises, together
with any alterations, additions and improvements thereto and all
restorations and replacements thereof made from time to time
(collectively, the “ Building ”); (c) all
machinery, apparatus, equipment and fixtures of every kind and
nature whatsoever now or hereafter located in, on or about the
Building or upon the Premises, or attached to or used or usable in
connection with the operation or maintenance of the Premises or the
Building or in connection with any construction being conducted on
the Premises, including, but not limited to, all heating, lighting
and power equipment, engines, plumbing, electrical, mechanical,
refrigeration, ventilating and air-conditioning equipment and
apparatus, elevators, cranes, fittings, tools, ducts and
compressors (collectively, the “ Building Equipment
”), which Building Equipment shall, to the fullest extent
permitted by law, be deemed to constitute fixtures and part of the
real property encumbered by this Mortgage; (d) all easements,
tenements, hereditaments, appurtenances, rights and rights of way,
public or private, pertaining, belonging or otherwise relating to
the Premises or the Building; (e) all insurance proceeds and
any judgments, settlements, awards and other payments, including
interest thereon, which may be made in respect of the Property as a
result of damage to or destruction of the Property, the exercise of
the right of condemnation or eminent domain over any interest in
the Property, the closing of, or the alteration of the grade of,
any street on or adjoining the Premises, or any other injury to or
decrease in the value of the Property; (f) all franchises,
permits, licenses and other rights therein respecting the use,
occupation or operation of the Property or the activities conducted
thereon or thereabout; (g) all rents, income and other
benefits arising out of or otherwise related to the Property and
all leases on or affecting the Property, and any security deposits,
contract rights, general intangibles, actions, rights of action,
and unearned insurance premiums relating to such leases or the
Property; and (h) all accessions to, substitutes for, and all
modifications, replacements, renewals, products and proceeds of any
of the foregoing; provided, however, that the Property shall
not include any Excluded GE Equipment Collateral (as defined in the
Credit Agreement).
Borrower covenants, represents and
warrants to Agent as follows:
1.
Indebtedness Secured . This Mortgage has been given
and is intended to secure the full and prompt payment and
performance of the Obligations and constitutes a future advance
mortgage under K.S.A. §58-2336. This Mortgage secures
future advances from the Banks to Borrower or Other Borrower and
other future obligations of Borrower and/or Other Borrower to the
Banks and the Agent pursuant to the Credit Documents;
provided, however, that, notwithstanding anything to the
contrary in this Mortgage, (i) the maximum aggregate principal
balance secured hereby shall not exceed $19,700,000 (the “
Maximum Amount Secured ”) , and (ii) payments
made on account of the obligations secured hereby or any portion
thereof, whether in the ordinary course, as prepayments or
otherwise, shall not reduce the Maximum Amount Secured unless the
aggregate principal amount of obligations secured hereby is less
than the Maximum Amount Secured. The priority of the lien hereunder
securing such future advances and future obligations shall relate
back to the date this Mortgage was recorded. In addition, the
Mortgage shall secure unpaid balances of advances made by Agent or
any Bank with respect to the Property, for the payment of
Impositions, as hereinafter defined, insurance premiums and costs
incurred for the protection of the Property and any charges,
expenses and fees, including, without limitation,
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attorneys’ fees, which, by the terms
hereof, shall be added to and increase the Obligations.
Borrower agrees that all of the duties and obligations imposed on
it hereunder, whether absolute or contingent, due or to become due,
are for the reasonable protection of the lien of this
Mortgage. This Mortgage shall remain in full force and effect
with respect to all of the Property until all Obligations shall
have been paid and performed in full. If the Obligations are
paid and performed in accordance with the terms of the applicable
Credit Documents, including, without limitation, the observance of
all the agreements contained in this Mortgage, this Mortgage shall
be released at the expense of Borrower. Borrower acknowledges
that nothing in this Section 1 obligates Agent or any Bank to
make future advances to Borrower or any other Person.
2.
Title to Property and Other Representations and Warranties
. Borrower represents, warrants and covenants to Agent
that: (a) Borrower owns the Premises and the
improvements thereon in fee simple absolute and has good and
marketable title to the remainder of the Property; (b) the
Property is free of all liens, encumbrances, adverse claims and
other defects of title whatsoever, except for Permitted Liens (as
defined in the Credit Agreement) and the matters set forth on
Exhibit B hereto (collectively, together with Permitted Liens
as defined in the Credit Agreement, “ Permitted Liens
”); (c) Borrower does hereby and shall forever warrant
and defend its title to and interest in the Property (and the
validity and priority of the lien of this Mortgage) to Agent
against all claims and demands whatsoever of any Person;
(d) the Building presently on the Premises complies in all
material respects with all applicable zoning and building codes,
ordinances and regulations, and such compliance is based solely
upon Borrower’s owning the Property and not upon
Borrower’s title to or interest in any other property;
(e) any Building hereafter constructed on the Premises shall
comply in all material respects with all applicable zoning and
building codes, ordinances and regulations and shall lie wholly
within the boundaries of the Premises; (f) there are no
actions, suits or proceedings pending or, to Borrower’s
knowledge, threatened against or affecting the Property; and
(g) Borrower has the good and unrestricted right, full power
and lawful authority to subject the Property to this
Mortgage.
3.
Maintenance . Borrower shall maintain the Property in
good order, condition and repair, excepting ordinary wear and
tear. Borrower shall make, as and when the same shall become
necessary, all structural and non-structural repairs, whether
exterior or interior, ordinary or extraordinary, foreseen or
unforeseen. Borrower shall not commit or suffer any waste of
the Property. Borrower shall not construct any new or
additional buildings on the Premises without the prior written
consent of Agent, which consent shall not be unreasonably withheld
so long as no Default or Event of Default exists.
Notwithstanding the foregoing, if Borrower is required by
applicable law to undertake any such alterations to the Building or
the Building Equipment, Borrower may do so without obtaining
Agent’s consent thereto. In such event, Borrower shall
promptly give Agent written notice of any such legal requirement
and, prior to undertaking such alterations, shall notify Agent in
writing of any such alterations that Borrower proposes to
undertake. Agent and each of the Banks, and their respective
agents, contractors and representatives, may enter upon and inspect
the Property at all reasonable times until this Mortgage is
released. Without limiting the generality of the foregoing,
Agent, each of the Banks, and their respective agents, contractors
and representatives, may from time to time enter upon the Property
and conduct upon the Property inspections and tests to determine
the extent to which any hazardous substances, wastes or other
environmentally unsound materials have been placed or discharged
upon or otherwise affect the Property, all at the sole expense of
Borrower.
4.
Restoration . If any of the improvements or equipment
comprising the Property is damaged or destroyed, in whole or in
part, by fire or other casualty (whether or not covered by
insurance), or by any taking in condemnation proceedings or the
exercise of any right of eminent domain, Borrower shall promptly
restore, replace or rebuild the same to as nearly as possible the
value, quality and condition they were in immediately prior to such
fire or other casualty or taking, with such alterations or changes
as may be approved in writing by Agent, which approval shall not be
unreasonably withheld; provided,
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however, that Borrower shall be under no duty to so
restore, rebuild or replace such property to the extent that Agent
receives and applies any insurance, condemnation or similar
proceeds relating to such casualty to satisfy any part of the
Obligations. Borrower shall give prompt notice to Agent of
any material damage to the Property.
5.
Compliance with Laws; Use of Property . Borrower shall
comply in all material respects with all present and future laws,
statutes, ordinances, rules, regulations and other requirements
(including, without limitation, applicable zoning and building
requirements) of all governmental and quasi-governmental
authorities whatsoever having jurisdiction with respect to the
Property. Borrower shall promptly perform and observe all of
the terms, covenants and conditions of all instruments of record
affecting the Property, non-compliance with which may affect the
security of this Mortgage, or which shall impose any duty or
obligation upon Borrower or any tenant or other occupant of the
Premises, and Borrower shall do all things necessary to preserve
intact and unimpaired any and all easements, appurtenances and
other interests and rights in favor of or constituting any portion
of the Property. Borrower shall not use or permit the use of
the Property in any manner which would tend to impair the value of
the Property or materially increase the risk of fire or other
casualty.
6.
Impositions . Borrower shall pay when the same shall
become due and payable all real estate taxes, assessments, water
and sewer rates and charges, license fees and all other
governmental levies and charges of every kind and nature
whatsoever, general and special, ordinary and extraordinary,
foreseen and unforeseen, which shall be assessed, levied,
confirmed, imposed or become a lien upon or against the Property or
which shall become payable with respect thereto (collectively,
“ Impositions ”). Notwithstanding the
foregoing, Borrower may contest any Imposition by appropriate and
timely proceedings, provided that on or before the due date for
payment of such Imposition Borrower shall establish an escrow or
other provision for payment of such Imposition satisfactory to
Agent in an amount estimated by Agent to be adequate to pay such
Imposition and any interest or penalties that may result from its
nonpayment on the due date. In all such cases of contest,
Borrower shall pay the contested Imposition within 10 days after
the dismissal of said proceedings or the final and unappealable
determination of Borrower’s or the Property’s liability
therefor, as the case may be. So long as any Event of Default
exists, however, Borrower shall, upon demand by Agent, pay the
whole of any assessment for local improvement which may be payable
in installments, notwithstanding that such installments may not be
due and payable at the time of such demand by Agent. Borrower
shall deliver to Agent, within 10 days after the request of Agent
therefor, the original or a photocopy of the official receipt
evidencing such payment or other proof of payment satisfactory to
Agent.
7.
Insurance . (a) Borrower, at Borrower’s
sole expense, shall insure the Property for the benefit of Agent
against loss or damage thereto and shall keep in effect, for
Agent’s benefit, comprehensive general public liability
insurance against claims for bodily injury, death or property
damage. The policies of insurance required by this
Section shall be in companies, forms and amounts, and for such
periods and with such deductibles, as shall be customary for
property similar in use, location and condition to the Property,
and shall insure the respective interests of Borrower and
Agent. The insurance proceeds from all such policies of
insurance (other than the proceeds in respect of any liability
insurance policy) shall be payable to Agent pursuant to a
noncontributing first mortgagee endorsement satisfactory in form
and substance to Agent. Upon request by Agent, Borrower shall
promptly furnish evidence of satisfactory insurance on the Property
and that Borrower has complied with the other provisions of this
Section. In addition to the other policies of insurance
required hereunder, Borrower shall cause a title insurer reasonably
acceptable to Agent to insure, in favor of Agent, Borrower’s
ownership of, and Agent’s first priority lien on, the
Property, subject only to Permitted Liens, in an amount equal to
not less than $19,700,000 in such form, and with such affirmative
coverage and endorsements as Agent may reasonably
request.
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(b)
Borrower irrevocably makes, constitutes and appoints Agent (and all
officers, employees or agents designated by Agent) as
Borrower’s true and lawful attorney-in-fact and agent, with
full power of substitution, for the purpose of making and adjusting
claims the policies of insurance referred to herein, endorsing the
name of Borrower on any check, draft, instrument or other item or
payment for the proceeds of such policies of insurance and for
making all determinations and decisions with respect to such
policies of insurance or to pay any premium in whole or in part
relating thereto. Agent, without waiving or releasing any
obligation or default by Borrower hereunder, may (but shall be
under no obligation to do so) at any time maintain such action with
respect thereto which Agent deems advisable. All sums
disbursed by Agent in connection therewith, including
attorneys’ fees, court costs, expenses and other charges
relating thereto, shall be payable, on demand, by Borrower to Agent
and shall be additional Obligations hereunder secured by this
Mortgage. Notwithstanding the foregoing, so long as no
Default or Event of Default exists, Borrower may make and settle
any insurance claims relating to the Property provided that
Borrower first obtains Agent’s written consent thereto, which
consent shall not be unreasonably withheld.
(c)
All proceeds of the insurance obtained by Borrower hereunder (other
than those relating to any liability insurance policy), shall be
paid to Agent, and Agent may deduct from such proceeds any
expenses, including, without limitation, legal fees, incurred by
Agent in connection with adjusting and obtaining such proceeds (the
balance remaining after such deduction being hereinafter referred
to as the “ Net Insurance Proceeds ”). If an
Event Default exists at the time Agent receives the Net Insurance
Proceeds, Agent may apply the Net Insurance Proceeds in reduction
or satisfaction of all or any part of the Obligations, whether then
matured or not, in which event Borrower shall be relieved of its
obligation under Sections 3 and 4 above to maintain and restore the
Property relating to such proceeds to the extent that Agent so
applies the Net Insurance Proceeds. If no Event of Default
exits at such time (or if an Event of Default exists and Agent
elects not to apply the Net Insurance Proceeds as provided in the
previous sentence), Agent shall release the Net Insurance Proceeds
to Borrower; provided, however, that, if the amount of the
Net Insurance Proceeds exceeds $50,000, Agent may condition the
release of all or any part of the Net Insurance Proceeds on such
escrow or other disbursement conditions as Agent may reasonably
require to ensure that Borrower uses the Net Insurance Proceeds to
maintain and the restore the Property as required under this
Agreement and to ensure that the Property remains free of all
mechanics’ and other liens except for Permitted
Liens.
(d)
In the event of a foreclosure under this Mortgage, the purchaser of
the Property shall succeed to all of the rights of Borrower,
including any right to unearned premiums, in and to all policies of
insurance which Borrower is required to maintain under this
Section and to all proceeds of such insurance.
8.
Deposits for Impositions and Insurance . Upon notice
from Agent (which notice shall not be given unless an Event of
Default exists), Borrower shall deposit with Agent on the first day
of each month an amount equal to one-twelfth of (i) the
aggregate annual payments for the Impositions, and (ii) the
annual insurance premiums on the policies of insurance required to
be obtained and kept in force by Borrower under this
Mortgage. In addition, upon notice from Agent (which notice
shall not be given unless an Event of Default exists), Borrower
shall deposit with Agent such sum of money which, together with
such monthly installments, shall be sufficient to pay all the
Impositions and insurance premiums at least 30 days prior to the
due date thereof. If the amounts of any Impositions are not
ascertainable at the time any deposit is required to be made, the
deposit shall be made on the basis of the amounts of the
Impositions for the prior tax year and, upon the amounts of the
Impositions being fixed for the then current year, Borrower shall,
upon notice from Agent, deposit any deficiency with Agent. If
the amount of the insurance premiums is not ascertainable at the
time any deposit is required to be made, the deposit shall be made
on the basis of the amount of the insurance premiums for the prior
year of the policy or policies, and, upon the amount of the
insurance premiums being fixed for the then current year of
the
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policy or policies, Borrower shall, upon notice
from Agent, deposit any deficiency with Agent. If on a date
30 days prior to the due date for the payment of any of the
Impositions or the insurance premiums there shall be insufficient
funds on deposit with Agent to pay the same, Borrower shall, upon
notice from Agent, forthwith make a deposit with Agent in the
amount of such deficiency. The funds so deposited with Agent
shall be held by Agent without interest, and may be commingled with
other funds of Agent, and provided that an Event of Default exists,
such funds shall be applied in payment of the Impositions and
insurance premiums when due to the extent that Borrower shall have
deposited funds with Agent for such purpose. If an Event of
Default exists, the funds deposited with Agent may, at the option
of Agent, be retained and applied toward the payment of any or all
of the Obligations, but no such application shall be deemed to have
been made by operation of law or otherwise until actually made by
Agent. Borrower shall furnish Agent with a bill for each of
the Impositions and insurance premiums and such other documents
necessary for their payment at least 30 days prior to the date they
first become due. Upon an assignment of this Mortgage prior
to any default hereunder by Borrower, Agent shall have the right
and obligation to pay over the balance of such deposits in its
possession to the assignee, and thereupon Agent shall be completely
released from all liability with respect to such deposits and
Borrower shall look solely to the assignee in reference
thereto. The provisions of the preceding sentence shall apply
to each and every assignment or transfer of such deposits to a new
assignee.
9.
Condemnation . (a) Borrower shall give immediate
notice to Agent upon Borrower’s learning of (i) any
interest on the part of any Person possessing or who has expressed
the intention to possess the power of eminent domain to purchase or
otherwise acquire the Property, or (ii) the commencement of
any action or proceeding to take the Property by exercise of the
right of condemnation or eminent domain or of any action or
proceeding to close or to alter the grade of any street on or
adjoining the Premises. Agent may participate in any such
actions or proceedings in the name of Agent or, whenever necessary,
in the name of Borrower, and Borrower shall deliver to Agent such
instruments as Agent shall request to permit such
participation. Borrower shall not settle any such action or
proceeding, whether by voluntary sale, stipulation or otherwise, or
agree to accept any award or payment without the prior written
consent of Agent, which consent shall not be unreasonably withheld
so long as no Default or Event of Default exists. The total
of all amounts awarded or allowed with respect to all right, title
and interest in and to the Property or the portion or portions
thereof taken or affected by such condemnation or eminent domain
proceeding and any interest thereon (herein collectively called the
“ Award ”) is hereby assigned to and shall be
paid upon receipt thereof to Agent and the amount received shall be
retained and applied as provided in
Section 9(b) below.
(b)
If an Event of Default exists at the time Agent receives the Award,
Agent may apply the Award in reduction or satisfaction of all or
any part of the Obligations, whether then matured or not. If
no Event of Default exits at such time (or if an Event of Default
exists and Agent elects not to apply the Award as provided in the
previous sentence), Agent shall release the Award to Borrower;
provided, however, that, if the amount of the Award exceeds
$50,000, Agent may condition the release of all or any part of the
Award on such escrow or other disbursement conditions as Agent may
reasonably require to ensure that, in the case of a taking of all
or substantially all of the Property, Buyer acquires replacement
real property that is subject to a mortgage lien in favor of Agent
subject to no lien or other encumbrance other than Permitted Liens
and, in the case of any other taking, Borrower uses the Award to
restore the Property remaining after such taking and to ensure that
such Property remains free of all mechanics’ and other liens
except for Permitted Liens. In no event shall Agent be
required to release this Mortgage until the Obligations are fully
paid and performed nor shall Agent be required to release from the
lien of this Mortgage any portion of the Property so taken until
Agent receives the Award for the portion so taken.
10.
Assignment of Rents and Leases . (a) Borrower
hereby presently assigns to Agent all of Borrower’s right,
title and interest in and to any Leases, as defined hereinafter,
with respect to the
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Property, and all rents, issues and profits of
the Property. “ Lease ” means every lease
or occupancy agreement for the use or hire of all or any portion of
the Property which shall be in effect on the date hereof, or which
shall hereafter be entered into, and by which Borrower is a lessor
or the like, and any renewals, extensions or other modifications
thereof. Borrower grants to Agent, with or without Agent or
any other Person (including, without limitation, a receiver) taking
possession of the Property, the right to give notice to the tenants
of this assignment, to collect rents, issues and profits from the
tenants and to enter onto the Property for the purpose of
collecting the same and to let the Property and to apply such
rents, issues and profits, after payment of all charges and
expenses relating to the Property, to the Obligations. This
assignment shall be an absolute assignment, subject to the license
herein granted to Borrower and Borrower’s obligations
hereunder, and shall continue in effect until the Obligations are
fully paid and performed. Agent hereby grants a revocable
license to Borrower to collect and use such rents, issues and
profits; provided, however, that the foregoing license shall
be automatically revoked, without any action on Agent’s part,
upon the occurrence of an Event of Default. Notwithstanding
any law to the contrary, if there is an Event of Default, and if
there is any applicable law requiring Agent to take possession of
the Property (or some action equivalent thereto, such as securing
the appointment of a receiver) in order for Agent to
“perfect” or otherwise “activate” its
rights and remedies as set forth herein, then Borrower waives all
benefits of such laws and agrees that such laws shall be fully
satisfied, without any action on Agent’s part, solely by the
occurrence of such Event of Default. If, notwithstanding such
waiver by Borrower, such laws require the undertaking of some
affirmative act by Agent, Borrower agrees that such laws shall be
fully satisfied solely by Agent giving Borrower notice, written or
oral, that such Event of Default has occurred and that Agent
intends to enforce its rights in any Leases and/or any rents,
issues and profits assigned herein.
(b)
Borrower shall, from time to time upon request by Agent, execute,
acknowledge and deliver to Agent, in form and substance
satisfactory to Agent, separate assignments of any Leases in order
to further evidence the foregoing assignment. Agent shall not
be obligated to perform any obligation to be performed by Borrower
under any Lease or other agreement affecting the Property, and
Borrower hereby agrees to indemnify Agent for, and hold Agent
harmless from, any and all liability and expenses arising from any
such Lease or other agreement or any assignments thereof, and no
assignment of any such Lease or other agreement shall place the
responsibility for the control, care, management or repair of the
Property upon Agent, nor make Agent liable for any negligence or
other tortious conduct, whether by Agent or any other Person, with
respect to the management, operation, upkeep, repair or control of
the Property resulting in injury, death, property or other damage
or loss of any nature whatsoever.
(c)
Borrower shall not cancel, amend or otherwise modify the terms and
conditions of any Lease without obtaining Agent’s prior
consent; nor shall Borrower accept payments of rent or the like
more than one month in advance without obtaining Agent’s
prior consent.
(d)
Agent may exercise its rights from time to time under this
Section 10 without first commencing foreclosure proceedings
against the Property if it so elects. Any such election by
Agent to exercise its rights from time to time under this
Section 10 shall not prohibit Agent from simultaneously or
thereafter foreclosing upon the Property or exercising any other
rights available to Agent hereunder or at law.
11.
Agent’s Right to Perform Borrower’s Covenants
. If Borrower shall fail promptly and fully to pay, perform
or observe any of the Obligations, then Agent may, at its option,
but without any obligation to do so, and without waiving or
releasing Borrower from any of the Obligations, pay any Obligation
or perform any Obligation or take such other action as Agent deems
necessary or desirable in order to cause such Obligation to be
paid, performed or observed, as the case may be. Borrower
hereby grant