SUBORDINATE CONSTRUCTION/PERMANENT MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS, FINANCING STATEMENT AND FIXTURE FILING

Exhibit 10.49

 

 

SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE ONLY

 

 

SUBORDINATE CONSTRUCTION/PERMANENT MORTGAGE,

SECURITY AGREEMENT, ASSIGNMENT OF

LEASES AND RENTS, FINANCING STATEMENT

AND FIXTURE FILING

 

 

 

 

 

 

 

INDIANA BIO-ENERGY, LLC

Mortgagor

 

 

AND

 

 

 

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE

Mortgagee

 

 

 SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE ONLY

 

 

SUBORDINATE CONSTRUCTION/PERMANENT MORTGAGE,

SECURITY AGREEMENT, ASSIGNMENT OF

LEASES AND RENTS, FINANCING STATEMENT

AND FIXTURE FILING

 

 

 

 

 

 

 

INDIANA BIO-ENERGY, LLC

Mortgagor

 

 

AND

 

 

 

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE

Mortgagee

 

 

 

 

 

TABLE OF CONTENTS

 

 

 

i

 

SUBORDINATE CONSTRUCTION/PERMANENT MORTGAGE,

SECURITY AGREEMENT, ASSIGNMENT OF

LEASES AND RENTS, FINANCING STATEMENT

AND FIXTURE FILING

 

This SUBORDINATE CONSTRUCTION/PERMANENT MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS, FINANCING STATEMENT AND FIXTURE FILING is dated as of March 1, 2007 (as amended, amended and restated, supplemented or otherwise modified from time to time, this “Mortgage” ), and is made by INDIANA BIO-ENERGY, LLC, an Indiana limited liability company ( “Mortgagor” ), whose address is 969 North Main Street, P.O. Box 297, Bluffton, Indiana 46714, in favor of U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, a national banking association ( “Mortgagee” ), whose address is 10 West Market Street, Suite 1150, Indianapolis, Indiana 46204, Attention: Corporate Trust.

 

RECITALS

 

A.

Unless otherwise defined herein, all capitalized terms herein shall have the meanings ascribed to them in that certain Indenture of Trust by and between City of Bluffton, Indiana ( “Issuer” ) and Mortgagee dated of even date herewith (as the same may be modified or amended from time to time, the “Indenture“ ).

 

B.

Mortgagor is the owner and holder of fee simple title in and to that certain real estate located in Bluffton, Wells County, Indiana, as more fully described on Exhibit A (the “Land” ).

 

C.

Mortgagor desires to construct and operate a single 100 million gallons per year ethanol production facility and other amenities to be located on the Land (the “Facility” ).

 

D.

Mortgagor and Issuer have entered into the Loan Agreement dated as of even date herewith (the “Loan Agreement” ) providing for the issuance by Issuer of the $22,000,000 aggregate principal amount of City of Bluffton, Indiana Subordinate Solid Waste Disposal Facility Revenue Bonds, Series 2007A (Indiana Bio-Energy, LLC Ethanol Plant Project) (the “Bonds” ) for the purpose of loaning the proceeds thereof to Mortgagor in order to provide funds (i) to finance a portion of the costs of the Facility, (ii) to pay a portion of the interest accruing on the Bonds during construction thereof, (iii) to fund a debt service reserve fund for the Bonds and (iv) to pay certain costs of issuance relating to the Bonds. The payment obligations of Mortgagor under the Loan Agreement shall be collectively referred to in this Mortgage as the “Loan Payments.” The total principal amount secured by this Mortgage is $22,000,000.00, plus the amount of protective advances made by Mortgagee as provided for in this Mortgage or the Loan Agreement. The maximum principal amount secured by this Mortgage is $44,000,000.

 

E.

The Loan Payments are payable and to be performed in accordance with the terms of the Loan Agreement, with the entire unpaid balance of the Loan Payment to mature and be due and payable in full not later than September 1, 2019 (the “Maturity Date” ).

 

F.

Mortgagor has agreed to mortgage the Mortgaged Property ( as that term is defined below ) to Mortgagee to secure the Loan Obligations ( as that term is defined below ).

 

G.

The obligations secured by this Mortgage (the “Loan Obligations” ) are as follows:

 

(i)

the Loan Payments, including, without limitation, future advances made by Mortgagee to Mortgagor, Mortgagor’s obligations in respect of the due and punctual payment of principal and interest when and as due, whether by acceleration or otherwise and all fees, expenses, indemnities, reimbursements, guaranties and other obligations of Mortgagor under the Loan Payments, Loan Agreement and this Mortgage, in all cases whether now existing or hereafter arising or incurred;

 

(ii)

all other amounts payable by Mortgagor under the Loan Agreement or this Mortgage as the same now exist or may hereafter be amended; and

 

(iii)

all obligations of Mortgagor under this Mortgage, including, but not limited to, any protective advances advanced by Mortgagee under this Mortgage.

 

 

 

Pursuant to I.C. 32-29-1-10, the Loan Obligations include, and this Mortgage secures, future obligations and advances under the Loan Agreement and protective advances made under this Mortgage or the Loan Agreement and future modifications, extensions, conversions, and renewals of the Loan Obligations secured by this Mortgage.

 

NOW, THEREFORE, Mortgagor, in consideration of the issuance of the Bonds and the Issuer making such funds available to Mortgagor, intending to be legally bound and to secure the payment and performance of the Loan Obligations hereby irrevocably and unconditionally MORTGAGES and WARRANTS and collaterally assigns, collaterally transfers and pledges unto Mortgagee, its successors and assigns, forever, with right of entry and possession, and grants to Mortgagee, its successors and assigns, a Mortgage and security interest in the Land and any buildings, plants, facilities or improvements of any kind (collectively, the “Improvements” ), now existing or hereafter constructed or placed thereon, described in Exhibit A attached hereto and all mineral rights, hereditaments, easements and appurtenances thereto, along with the following (to the extent permitted by applicable law or the agreement, instrument or other documents creating the Mortgagor’s rights therein), all of which together with the Land is called the “Mortgaged Property” :

 

(a)

All and singular the tenements, hereditaments, easements, appurtenances, passages, rights of ingress and egress, licenses, permits, rights of use or occupancy, waters, water courses, repair in rights, mineral rights, sewer rights, rights in trade names, licenses, permits and contracts, and all other rights, liberties and privileges of any kind or character in any way now or hereafter appertaining to the Land or any Improvements thereon, including, but not limited to, homestead and any other claim at law or in equity as well as any after-acquired title, franchise or license and the reversion and reversions and remainder and remainders thereof;

 

(b)

The land lying within any street, alley, avenue, roadway, or right of way open or proposed or hereafter vacated in front of or adjoining the Land; and all right, title, and interest, if any, of Mortgagor in and to any strips and gores adjoining or used in connection with the Land;

 

(c)

All agreements, ground leases, grants of easements or rights of way, permits, declarations of easement, conditions or restrictions, disposition and development of agreements, planned unit development agreements, plats, subdivision plans, permits and approvals, and other documents affecting the Land and/or the Improvements;

 

2

 

(d)

All rights, title and interest of Mortgagor in any and all buildings and Improvements of every kind and description now or hereafter erected or placed on the Land and all materials intended for construction, reconstruction, alteration and repairs of such buildings and Improvements now or hereafter erected thereon, all of which materials shall be deemed included within the Mortgaged Property immediately upon the delivery thereof to the Mortgaged Property or upon any earlier acquisition thereof by Mortgagor, and all fixtures now or hereafter owned by Mortgagor and attached to or contained in and used or acquired for use in connection with the Mortgaged Property including, but not limited to, all heating, lighting, refrigerating, ventilating, air conditioning, air cooling, fire extinguishing, plumbing, cleaning, telephone, communications and power equipment, systems and apparatus; and all elevators, switchboards, motors, pumps, screens, awnings, floor coverings, cabinets, partitions, conduits, ducts and compressors; and all cranes and craneways, oil storage, sprinklers/fire protection and water service equipment; and also including any of such property stored on the Land or Improvements or in warehouses and intended to be used in connection with or incorporated into the Land or Improvements or for the pursuit of any other activity in which Mortgagor may be engaged on the Land or Improvements, and including without limitation all tools, cabinets, awnings, window shades, Venetian blinds, drapes and drapery rods, brackets, screens, carpeting and other window and floor coverings, decorative fixtures, plants, cleaning apparatus, and cleaning equipment, refrigeration equipment, generators, cables, telecommunication cables, antennas and systems, computers, software, books, supplies, kitchen equipment, appliances, tractors, lawn mowers, groundsweepers and tools, together with all substitutions, accessions, repairs, additions and replacements to any of the foregoing and all other items of furniture, furnishings, equipment and personal property owned by Mortgagor used or useful in the operation of the Mortgaged Property; and all renewals or replacements of all of the aforesaid property owned by Mortgagor or articles in substitution therefore, whether or not the same are or shall be attached to said buildings or Improvements in any manner; it being mutually agreed, intended and declared that all of the aforesaid property owned by Mortgagor and placed by it on the Land or Improvements or used or acquired for use in connection with the operation or maintenance of the Mortgaged Property shall, so far as permitted by law, be deemed to form a part and parcel of the Land for the purposes of this Mortgaged Land and covered by this Mortgage, and as to any of the property aforesaid which does not form a part and parcel of the Land or does not constitute a “fixture” (as such term is defined in the Uniform Commercial Code as in effect in the State of Indiana (the “UCC“ )), this Mortgage is hereby deemed to be, as well, a security agreement under the UCC for the purposes of creating hereby a security interest in such property which Mortgagor hereby grants to Mortgagee as secured party, and all inventory, office supplies, machinery, apparatus, systems and equipment used or useful in the production of ethanol at the Mortgaged Property, all as now owned or hereafter acquired by Mortgagor;

 

(e)

All Leases (as hereinafter defined) of the Land or Improvements or any part thereof, whether now existing or hereafter entered into (the “Leases”), and all rights, title and interest of Mortgagor thereunder, including cash and security deposits under any such Leases;

 

(f)

Any and all awards, payments or insurance proceeds, including interest and unearned premiums thereon, and the right to receive the same, which may be paid or payable with respect to the Land or Improvements for other properties described above as a result of: (i) the exercise of the right of eminent domain or action in lieu thereof; or (ii) the alteration of the grade of any streets; or (iii) any fire, casualty, accident, damage or other injury to or decrease in the value of Land or Improvements or other properties described above, to the extent of all amounts which may be secured by this Mortgage at the date of receipt of any such award or payment by Mortgagor or Mortgagee, and of the reasonable counsel fees, costs and disbursements incurred by Mortgagor or Mortgagee in connection with the collection of such award or payment. Mortgagor agrees to execute and deliver, from time to time, such further instruments as may be requested by Mortgagee to confirm such assignment to Mortgagee of any such award or payment;

 

3

 

(g)

All licenses, permits (including, but not limited to, building permits), authorizations, certificates, variances, consents, approvals and other approvals now or hereafter acquired pertaining to the Land or any Improvements thereon or which related to the construction of the Improvements and/or the use, occupancy, development, leasing, operation or servicing of the Land, including, but not limited to, air and water discharge permits, environmental permits and rights as is required for the production of ethanol, above-ground storage tank licenses and permits, and all estate, right, title and interest of Mortgagor in, to, under or delivered from all present or future development, construction, operation or use of the Land or any Improvements thereon;

 

(h)

All intangible personal property relating to the Land and/or Improvements, business records, claims for refunds or rebates of taxes, tax abatements, money, deposit accounts, accounts in general and payment intangibles;

 

(i)

Any and all water and water rights, minerals, oil, gas, or any rights thereto;

 

(j)

All plans, drawings, and specifications relating to the Mortgaged Property and the construction of the Improvements, all permits, consents, approvals, licenses, authorizations and other rights granted by, given by or obtained from any governmental entity with respect to the Mortgaged Property; and all other interests of any kind and character that Mortgagor now has or at any time hereafter acquires in and to the Mortgaged Property;

 

(k)

All studies, tests, investigations, and reports of any kind relating to the soils or conditions of the soils of the Land and the suitability of the soils for the construction of the Improvements, all mechanical or structural studies, grading plans, drainage studies, and plans and other similar studies, plans from drawings, or reports of any nature related to the construction of the Improvements;

 

(l)

All management contracts, service contracts, operating agreements, variances and permits relating to the Land and/or Improvements;

 

(m)

All after-acquired title to or remainder or reversion of any of the foregoing, all and any proceeds of any of the foregoing, all and any additions, accessions and extensions to, improvements of and substitutions and replacements of any of the foregoing and all additional lands, estates, interest, rights, or any other property acquired by Mortgagor after the date of this Mortgage, all without need for any additional Mortgage, assignment, pledge or conveyance to Mortgagee but Mortgagor will execute and deliver to Mortgagee upon Mortgagee’s request any documents or instruments to further effect or evidence the foregoing; and

 

(n)

The right in the case of foreclosure hereunder of the encumbered property for Mortgagee to take and use the same by which the buildings and all other Improvements situated on the Land or commonly known and the right to manage and operate said buildings under any such name and variance thereof;

 

Subject only to the Permitted Encumbrances (as herein defined) and to secure payment of the Loan Obligations.

 

The parties hereto intend the definition of Mortgaged Property to be broadly construed and in the case of doubt if any particular item is to be included in the definition of Mortgaged Property, the doubt should be resolved in favor of inclusion.

 

TO HAVE AND TO HOLD said Mortgaged Property, whether now owned or held or hereafter acquired, unto Mortgagee, its successors and assigns, forever pursuant to the provisions of this Mortgage.

 

4

 

IT IS HEREBY COVENANTED, DECLARED AND AGREED that the lien, security interest or estate created by this Mortgage to secure the payment of the Loan Obligations, both present and future, shall, except as set forth in Section 5.11 hereof, be first, prior and superior to any lien, security interest, reservation of title or other interest heretofore, contemporaneously or subsequently suffered or granted by Mortgagor, its legal representatives, successors or assigns, except only those, if any, expressly hereinafter referred to and that the Mortgaged Property is to be held, dealt with and disposed of by Mortgagee, upon and subject to the terms, covenants, conditions, uses and agreements set forth in this Mortgage.

 

PROVIDED ALWAYS, that upon the indefeasible payment in full in cash of the Loan Obligations and all other obligations to Mortgagee under the Loan Agreement and the observance and performance by Mortgagor of its covenants and agreements set forth herein and therein, then this Mortgage and the estate hereby and therein granted shall cease and be void and shall be terminated and released as provided herein below.

 

This Mortgage also constitutes a security agreement within the meaning of the UCC, with respect to all property described herein as to which a security interest may be granted and/or perfected pursuant to the UCC, and is intended to afford Mortgagee to the fullest extent allowed by law, the rights and remedies of a secured party under the Dec.

 

MORTGAGOR FURTHER agrees as follows:

 

ARTICLE I

AGREEMENTS

 

Section 1.1.

Performance of Loan Obligations; Incorporation by Reference. Subject to any applicable cure or grace periods as set forth in the Loan Documents, Mortgagor shall pay and perform the Loan Obligations. Time is of the essence hereof. All of the covenants, obligations, agreements, warranties and representations of Mortgagor contained in this Mortgage and the Loan Agreement and all of the terms and provisions thereof are hereby incorporated herein and made a part hereof by reference as if fully set forth herein.

 

Section 1.2.

Further Assurances. If Mortgagee requests, Mortgagor shall sign and deliver and cause to be recorded as Mortgagee shall direct any further mortgages, amendments or supplements to this Mortgage, instruments of further assurance, certificates and other documents as Mortgagee reasonably may consider necessary or desirable in order to attach, perfect, continue and preserve the Loan Obligations and Mortgagee’s rights, title, estate, liens and interests under the Loan Agreement and this Mortgage. Mortgagor further agrees to pay to Mortgagee, upon demand, all reasonable and necessary costs and expenses incurred by Mortgagee in connection with the preparation, execution, recording, filing and refiling of any such documents, including reasonable attorneys’ fees.

 

Section 1.3.

Sale, Transfer, Encumbrance. If Mortgagor sells, conveys, transfers or otherwise disposes of, or encumbers, any part of its interest in the Mortgaged Property, whether voluntarily, involuntarily or by operation of law (except for Permitted Encumbrances), without the prior written consent of Mortgagee, Mortgagee shall have the option to declare the Loan Obligations immediately due and payable immediately upon notice. Included within the foregoing actions requiring prior written consent of Mortgagee are: (a) sale by deed or contract for deed; (b) mortgaging or granting a lien on the Mortgaged Property (other than the Permitted Encumbrances); and (c) a change of control in 50% or more of the equity interest or voting power or control of Mortgagor. Mortgagor shall give notice of any proposed action effecting any of the foregoing to Mortgagee for Mortgagee’s consent at least thirty (30) days prior to taking such action. Mortgagor shall pay all reasonable costs and expenses incurred by Mortgagee in evaluating any such action. Mortgagee may condition its consent upon reasonable modification of the Loan Documents or payment of reasonable fees. No such action shall relieve Mortgagor from liability for the Loan Obligations as set forth herein. The consent by Mortgagee to any action shall not constitute a waiver of the necessity of such consent to any subsequent action.

 

5

 

Section 1.4.

Insurance. Mortgagor shall obtain, maintain and keep in full force and effect and shall furnish to Mortgagee copies of policies of insurance as described in, and meeting the requirements set forth in, the Loan Agreement. At least ten (10) days prior to the termination of any such coverage, Mortgagor shall provide Mortgagee with evidence satisfactory to Mortgagee that such coverage will be renewed or replaced upon termination with insurance that complies with the provisions of this Section and the Loan Agreement. Mortgagor, at its sole cost and expense, from time to time when Mortgagee shall so request, will provide Mortgagee with evidence in a form acceptable to Mortgagee, of the full insurable replacement cost of Mortgaged Property. All property and liability insurance policies maintained by Mortgagor pursuant to this Section and the Loan Agreement shall (a) include effective waivers by the insurer of all claims for insurance premiums against Mortgagee, and (b) provide that any losses shall be payable notwithstanding (i) any act of negligence by Mortgagor or Mortgagee, (ii) any foreclosure or other proceedings or notice of foreclosure sale relating to the Mortgaged Property, or (iii) any release from liability or waiver of subrogation rights granted by insured. In addition, all policies of casualty insurance shall contain standard noncontributory mortgagee loss payable clauses to Mortgagee, and the comprehensive general liability and other liability policies required in the Loan Agreement, including environmental pollution policies, shall name Mortgagee as an additional insured.

 

Section 1.5.

Taxes, Liens and Claims, Utilities. Mortgagor shall pay and discharge when due, or cause to be paid and discharged when due, all taxes, assessments and governmental charges and levies (collectively, “Impositions”) imposed upon or against the Mortgaged Property or the Rents (as hereinafter defined), or upon or against the Loan Obligations, or upon or against the interest of Mortgagee in the Mortgaged Property or the Loan Obligations, except Impositions measured by the income of Mortgagee. Mortgagor shall provide evidence of such payment at Mortgagee’s request. Mortgagor shall keep the Mortgaged Property free and clear of all liens (including, but not limited to, mechanics’ liens), encumbrances, easements, covenants, conditions, restrictions and reservations (collectively, “Encumbrances”) except those set forth in Exhibit B attached hereto and made a part hereof (the “Permitted Encumbrances “). Mortgagor shall pay or cause to be paid when due all charges or fees for utilities and services supplied to the Mortgaged Property. Notwithstanding anything to the contrary contained in this Section, Mortgagor shall not be required to pay or discharge any Imposition or Encumbrance so long as Mortgagor shall in good faith, and after giving notice to Mortgagee, contest the same by appropriate legal proceedings and otherwise in accordance with the requirements set forth in the Loan Agreement. If Mortgagor contests any Imposition or Encumbrance against the Mortgaged Property, Mortgagor shall provide such security to Mortgagee as Mortgagee shall reasonably require against loss or impairment of Mortgagor’s ownership of or Mortgagee’s lien on the Mortgaged Property and shall in any event pay such Imposition or Encumbrance before loss or impairment occurs.

 

Section 1.6.

Escrow Payments. If requested by Mortgagee after the occurrence and during the continuation of an Event of Default, Mortgagor shall deposit with Mortgagee monthly on the first day of each month the amount reasonably estimated by Mortgagee to be necessary to enable Mortgagee to pay, at least five (5) days before they become due, all Impositions against the Mortgaged Property and the premiums upon all insurance required hereby to be maintained with respect to the Mortgaged Property. All funds so deposited shall secure the Loan Obligations. Any such deposits shall be held by Mortgagee, or its nominee, in a non-interest bearing account and may be commingled with other funds. Such deposits shall be used to pay such Impositions and insurance premiums when due. Any excess sums so deposited shall be retained by Mortgagee and shall be applied to pay said items in the future, unless the Loan Obligations have been paid and performed in full, in which case all excess sums so paid shall be promptly refunded to Mortgagor. Upon the occurrence of an Event of Default, Mortgagee may apply any funds in said account against the Loan Obligations in such order as Mortgagee may determine.

 

6

 

Section 1.7.

Maintenance and Repair; Compliance with Laws. Mortgagor shall cause the Mortgaged Property to be operated, maintained and repaired in safe and good repair, working order and condition, reasonable wear and tear, insured casualty loss excepted; shall not commit or permit waste thereof; except as provided in the Loan Agreement, shall not remove, demolish or substantially alter the design or structural character of any Improvements without the prior written consent of Mortgagee; shall complete or cause to be completed forthwith any Improvements which are now or may hereafter be under construction upon the Land; shall materially comply or cause material compliance with all laws, statutes, ordinances and codes, and governmental rules, regulations and requirements, applicable to the Mortgaged Property or the manner of using or operating the same, and with any covenants, conditions, restrictions and reservations affecting the title to the Mortgaged Property, and with the terms of all insurance policies relating to the Mortgaged Property; and shall obtain and maintain in full force and effect all consents, permits and licenses necessary for the use and operation of the Mortgaged Property in Mortgagor’s business. Mortgagor shall obtain and maintain in full force and effect all certificates, licenses, permits and approvals that are required by law or necessary for the construction of the Improvements or the use, occupancy or operation of the Project. Subject to the provisions of this Mortgage with respect to insurance proceeds and condemnation awards, Mortgagor shall promptly repair, restore and rebuild any Improvements now or hereafter on the Mortgaged Property which may become damaged or destroyed, such Improvements to be of at least equal value and quality and of substantially the same character as prior to such damage or destruction.

 

Section 1.8.

Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.

 

(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the Landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than thirty (30) days in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.

 

(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease.

 

(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred.

 

(e) For purposes of this Mortgage, the following terms shall have the following meanings:

 

(i)

“Landlord” : Any person or party leasing to Tenant any part of the Mortgaged Property pursuant to a Lease.

 

(ii)

“Lease”: Any lease, occupancy agreement or other document or agreement, written or oral, permitting any Person to use or occupy any part of the Mortgaged Property.

 

(iii)

“Person”: Any natural person, corporation, partnership, limited partnership, limited liability company, joint venture, firm, association, trust, unincorporated organization, government or governmental agency or political subdivision or any other entity, whether acting in an individual, fiduciary or other capacity.

 

7

 

(iv)

“Tenant”: Any Person or party using or occupying any part of the Mortgaged Property pursuant to a Lease.

 

Section 1.9.

Indemnity. Mortgagor shall indemnify Mortgagee together with its successors and assigns and Mortgagee’s directors and officers (collectively the “Indemnified Parties”) against, and hold the Indemnified Parties harmless from, all losses, damages, suits, claims, judgments, penalties, fines, liabilities, costs and expenses by reason of, or on account of, or in connection with the construction, reconstruction or alteration of the Mortgaged Property during Mortgagor’s ownership thereof, or any accident, injury, death or damage to any person or property occurring in, on or about the Mortgaged Property during Mortgagor’s ownership thereof, or any street, drive, sidewalk, curb or passageway adjacent thereto, except to the extent that the same results from the willful misconduct or gross negligence of the Person or party seeking indemnification. The indemnity contained in this Section shall include costs of defense of any such claim asserted against an Indemnified Party, including reasonable attorneys’ fees. The indemnity contained in this Section shall survive payment and performance of the Loan Obligations and satisfaction and release of this Mortgage and any foreclosure thereof or acquisition of title by deed in lieu of foreclosure.

 

Section 1.10.

Assignment of Leases and Rents. (a) As additional security for the Loan Obligations secured by this Mortgage, Mortgagor does hereby bargain, sell, assign, transfer and set over unto Mortgagee all Leases and all the rents, fees, issues, profits, revenues, royalties and other income of any kind (“Rents”) which, whether before or after foreclosure, or during the full statutory period of redemption, if any, shall accrue and be owing for the use or occupation of the Mortgaged Property or any part thereof. So long as no Event of Default exists under this Mortgage, Mortgagor shall have a revocable license to collect, but not more than one (1) month in advance under any Lease, all Rents earned prior to default. This Mortgage constitutes an absolute, irrevocable, currently effective assignment of Rents and profits. Mortgagor hereby appoints Mortgagee Mortgagor’s true and lawful attorney-in-fact with full power of substitution to, upon the occurrence and during the continuation of an Event of Default, demand, collect and receive any and all Rents which may be or become due and payable by Tenants after the occurrence of any Event of Default, which appointment is coupled with an interest and is irrevocable. Upon the occurrence and during the continuation of an Event of Default, Mortgagee may, at its discretion, file any claim or take any action to collect and enforce the payment of Rents, either in Mortgagee’s name or Mortgagor’s name or otherwise. Tenants are hereby expressly authorized and directed by Mortgagor to pay to Mortgagee all Rents upon Mortgagee’s demand, and such Tenants are hereby expressly relieved of any and all duty, obligation or liability in respect of any Rents so paid to Mortgagee.

 

(b) If, at any time after an Event of Default hereunder and during the continuation thereof, in the sole discretion of Mortgagee, a receivership may be necessary to protect the Mortgaged Property or its Rents, whether before or after maturity of any Loan Payments and whether before or at the time of or after the institution of suit to collect such Loan Obligations, or to enforce this Mortgage, Mortgagee, as a matter of strict right and regardless of the value of the Mortgaged Property or the amounts due hereunder or secured hereby, or of the solvency of any party bound for the payment of such Loan Obligations, shall have the right to the