THIS MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this “ Mortgage ”) is made as of  August 14, 2009, by MGP Ingredients, Inc., a corporation duly organized and validly existing under the laws of the State of Kansas, authorized to do and conduct business in the State of Illinois and having an office at 100 Commercial Plaza, Atchison, Kansas 66002 Attn:  Timothy W. Newkirk, President, formerly known as Midwest Grain Products, Inc., a Kansas corporation (the “ Mortgagor ”), in favor of Central Illinois Light Company, and having an office at 300 Liberty Street, Peoria, Illinois 61602, Attention:  Stan E. Ogden, Vice President (the “ Mortgagee ”).

 

W I T N E S S E T H:

 

WHEREAS, Mortgagor and Mortgagee are parties to that certain Restructuring Agreement dated July 20, 2009 (the “Restructuring Agreement”), pursuant to which Mortgagor has executed and delivered to Mortgagee the Note, as defined therein, dated July 20, 2009 and in the principal amount of $11,614,197.19 (the “Note”); except as otherwise herein expressly provided, all capitalized terms not otherwise defined herein shall have the meaning provided in the Restructuring Agreement;

 

WHEREAS, as a condition to Mortgagee’s extension of credit to the Mortgagor pursuant to the Restructuring Agreement, Mortgagee has required that Mortgagor execute and deliver this Mortgage;

 

WHEREAS, all advances, indebtedness and obligations of Mortgagor arising and accruing under the Restructuring Agreement from time to time shall be secured by this Mortgage to the same extent as though advanced on the date hereof; and

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and FOR THE PURPOSE OF SECURING the following items (a) through (e) (collectively, the “ Obligations ”):

 

(a)           all payment and other obligations of Mortgagor arising under the Note, as the same may hereafter be amended;

 

(b)           the performance and payment of all covenants, agreements and obligations contained herein and in the Restructuring Agreement and all other monies secured hereby, including, without limitation, any and all sums expended by the Mortgagee pursuant to Section 1.06, together with interest thereon;

 

(c)           the performance and payment of all covenants, agreements and obligations arising under that certain Assignment of Income Tax Refunds and Proceeds dated July 20, 2009 from Mortgagor to Mortgagee (the “Assignment of Income Tax Refunds”);

 

(d)           all indebtedness and obligations arising pursuant this Mortgage and to any and all other agreements or assignments securing the Note; and

 

(e)           the payment of any sum or sums of money which may hereafter be payable by Mortgagor and the observance of all other obligations of Mortgagor to Mortgagee under the Restructuring Agreement, as the same may be amended or modified.

 

2

 

Mortgagor, for and in consideration of the debt hereinafter described and created, and of Ten Dollars and No Cents ($10.00) paid to Mortgagor by Mortgagee, the receipt of which is hereby acknowledged, hereby GRANTS, BARGAINS, REMISES, RELEASES, SELLS, CONVEYS and CONFIRMS to Mortgagee, its successors and assigns forever, all of Mortgagor’s estate, right, title and interest in, to and under, and grants to Mortgagee a security interest in, any and all of the following described property which is (except where the context otherwise requires) herein collectively called the “Property”, whether now owned or held or hereafter acquired, such term also referring to any part or parcel hereof:

 

(a)           all of the real estate and property legally described in Exhibit A attached hereto and by this reference made a part hereof, including any buildings or other improvements thereon (hereinafter called the “Real Estate”); and

 

(b)           all right, title and interest of Mortgagor, including any after-acquired title or reversion, in and to the beds of the ways, streets, avenues and alleys adjoining the Real Estate and in and to any strips, gaps or gores adjoining the Real Estate on all sides thereof; and

 

(c)           all of the tenements, hereditaments, easements, appurtenances, passages, waters, water rights, water courses, riparian rights and other rights, liberties and privileges thereof now or hereafter appertaining to the Real Estate, including any homestead or other claim at law or in equity, any after-acquired title, franchises, licenses, and any reversions and remainders thereof; and

 

(d)           Mortgagor’s interest in all buildings and improvements of every kind and description now or hereafter erected or placed on the Real Estate (the “Improvements”); all materials intended for construction, reconstruction, alterations and repairs of the Improvements (whether stored or located on site or stored off site), all of which materials shall be deemed to be included within the Property hereby conveyed immediately upon the delivery thereof to the Real Estate; all fixtures now or hereafter owned by Mortgagor and attached to or used in connection with Real Estate and Improvements (“Fixtures”), including but not limited to all furniture and furnishings, apparatus, machinery, motors, elevators, fittings, radiators, gas ranges, mechanical refrigerators, awnings, shades, screens, office equipment, blinds, carpeting and other furnishings, and all plumbing, beating, lighting, cooking, laundry, ventilating, refrigerating, incinerating, air conditioning, central energy and sprinkler equipment and fixtures and appurtenances thereto; and all renewals or replacements of any of the foregoing, whether or not the same are or shall be attached to the Improvements.  Notwithstanding anything herein to the contrary, Mortgagee shall not have a security interest in and to Mortgagor’s “equipment” as such term is defined in the Uniform Commercial Code for Illinois (the “Code”); and

 

(e)           all of the rents, issues, proceeds and profits accruing or to accrue from the Real Estate or arising from the use or enjoyment of all or any portion thereof or from any lease or agreement pertaining thereto; and all right, title and interest of Mortgagor in and to all leases of the Real Estate now or hereafter existing; including without limitation all deposits made thereunder to secure performance by the tenants of their obligations thereunder; and

 

(f)            all goodwill, trademarks, trade names, option rights, purchase contracts, books and records and general intangibles of Mortgagor relating to the Real Estate or the Improvements

 

3

 

including, without limitation, all rights of Mortgagor under or with respect to all accounts, contract rights, instruments, chattel paper and other rights of Mortgagor for payment of money for property sold, rented or lent, for services rendered, for money lent, or advances or deposits made, and any other intangible property of Mortgagor related to the Real Estate or the Improvements; and

 

(g)           all rights, including all copyrights, of Mortgagor to plans and specifications, designs, drawings and other matters prepared for any construction on or renovation or alteration of the Real Estate and Improvements; and

 

(h)           all licenses, permits, authorizations or approvals of any type or nature whatsoever, now owned or held or hereafter acquired which relate to the use, development or occupancy of the Real Estate; and

 

(i)            all proceeds (including claims or demands thereto) of the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims, including without limitation all proceeds of insurance (including unearned premiums) and condemnation awards including interest thereon.

 

TO HAVE AND TO HOLD the Property with all privileges and appurtenances thereunto belonging, to the Mortgagee and its successors and assigns, forever, upon the terms and conditions and for the uses hereinafter set forth;

 

PROVIDED ALWAYS, that if the principal of and interest on the Loans under the Restructuring Agreement and all of the other Obligations shall be paid in full, and the Mortgagor shall abide by and comply with each and every covenant contained herein and in the Restructuring Agreement, then this Mortgage and the lien and estate hereby granted shall cease, terminate and become void.

 

This Mortgage, the Note, the Restructuring Agreement, Assignment of Income Tax Refunds and any other instrument given to evidence or further secure the payment and performance of any Obligations are sometimes hereinafter collectively referred to as the “ Loan Instruments ”.

 

TO PROTECT THE SECURITY OF THIS MORTGAGE, THE MORTGAGOR HEREBY COVENANTS AND AGREES AS FOLLOWS:

 

ARTICLE 1
Particular Covenants and Agreements of the Mortgagor

 

Section 1.01           Title, Etc.

 

(a)           Mortgagor has full power and authority to execute this Mortgage and is lawfully seized of the Property in fee simple absolute and has good right and lawful authority to convey the same free and clear of all restrictions, encumbrances, and liens except those encumbrances, easements, reservations, and restrictions now of record and listed on Exhibit B attached hereto (the “Permitted Exceptions”).  Mortgagor shall keep the Property free from all liens and claims of every kind, whether statutory or otherwise, except for Permitted Exceptions.  Mortgagor will,

 

4

 

at its expense, warrant and defend all such title and the lien and security interest of this Mortgage against all claims and demands and will maintain and preserve such lien and security interest so long as all or any portion of the Obligations are outstanding.  Mortgagor agrees, at the request of Mortgagee, from time to time, to execute any further assurances of title and to provide Mortgagee with such evidence thereof as Mortgagee shall request.

 

Section 1.02           Further Assurances; Filing; Re-Filing; Etc.

 

(a)           Further Instruments .  To the extent permitted by and subject to applicable law, the Mortgagor shall execute, acknowledge and deliver, from time to time, such further instruments as the Mortgagee may reasonably require to accomplish the purposes of this Mortgage.

 

(b)           Filing and Re-Filing .  Subject to applicable law, the Mortgagor, immediately upon the execution and delivery of this Mortgage, and thereafter from time to time upon reasonable advance notice from Mortgagee, shall cause this Mortgage, any security agreement or mortgage supplemental hereto and each instrument of further assurance to be filed, registered or recorded and re-filed, re-registered or re-recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and perfect the lien or estate of this Mortgage upon the Property.

 

(c)           Fees and Expenses .  The Mortgagor shall pay all filing, registration and recording fees, all re-filing, re-registration and re-recording fees, and all expenses incident to the execution, filing, recording and acknowledgment of this Mortgage, any security agreement or mortgage supplemental hereto and any instrument of further assurance, and all Federal, state, county and municipal stamp taxes and other taxes, duties, imposts, assessments and charges arising out of or in connection with the execution, delivery, filing and recording of this Mortgage or any of the other Loan Instruments, any security agreement or mortgage supplemental hereto or any instruments of further assurance.

 

Section 1.03           Insurance; Foreclosure .  In the event of foreclosure of the lien of this Mortgage or other transfer of title or assignment of the Property in extinguishment, in whole or in part, of the Obligations, all right, title and interest of the Mortgagor in and to all policies of casualty insurance covering all or any part of the Property shall inure to the benefit of and pass to the successors in interest to the Mortgagor or the purchaser or grantee of the Property or any part thereof.

 

Section 1.04           Impositions .

 

(a)           Payment of Impositions .  The Mortgagor shall pay or cause to be paid, before any fine, penalty, interest or cost attaches thereto, all taxes, assessments, water and sewer rates, utility charges and all other governmental or non-governmental charges or levies now or hereafter assessed or levied against any part of the Property (including, without limitation, non-governmental levies or assessments such as maintenance charges, owner association dues or charges or fees, levies or charges resulting from covenants, conditions and restrictions affecting the Property) or upon the lien or estate of the Mortgagee therein (collectively, “ Impositions ”), as well as all claims for labor, materials or supplies that, if unpaid, will by law become a prior lien thereon, and within ten (10) days after request by the Mortgagee will exhibit receipts showing

 

5

 

payment of any of the foregoing; provided , however, that if by law any such Imposition may be paid in installments (whether or not interest shall accrue on the unpaid balance thereof), the Mortgagor may pay the same in installments (together with accrued interest on the unpaid balance thereof) as the same respectively become due, before any fine, penalty or cost attaches thereto.

 

(b)           Right to Contest Impositions .  Notwithstanding anything contained in Section 1.04(a) to the contrary, the Mortgagor at its expense may, after prior notice to the Mortgagee, contest the amount or validity or application, in whole or in part, of any Imposition or lien therefor or any claims of mechanics, materialmen, suppliers or vendors or lien thereof, and may withhold payment of the same pending such proceedings if permitted by law.

 

Section 1.05           Limitations of Use .  Subject to applicable law, the Mortgagor shall not initiate, join in or consent to any change in any private restrictive covenant, zoning ordinance or other public or private restrictions limiting or defining the uses that may be made of the Property and the Improvements or any part thereof that would have a material adverse effect on the value of the Property or the Improvements.  Except as otherwise permitted under the Loan Instruments, the Mortgagor shall comply in all material respects with the provisions of all leases, licenses, agreements and private covenants, conditions and restrictions that at any time are applicable to the Property.

 

Section 1.06           Actions to Protect Property .

 

(a)           If the Mortgagor shall fail to (a) effect the insurance required hereby, (b) make the payments required by Section 1.04 hereof, or (c) perform or observe any of its other covenants or agreements hereunder, the Mortgagee may, without obligation to do so, and upon notice to the Mortgagor (except in an emergency) effect or pay the same.  To the maximum extent permitted by law, all sums, including reasonable attorneys’ fees and disbursements, so expended or expended to sustain the lien or estate of this Mortgage or its priority, or to protect or enforce any of the rights hereunder, or to recover any of the Obligations, shall be a lien on the Property, shall be deemed to be added to the Obligations secured hereby, and shall be paid by the Mortgagor within ten (10) days after demand therefor, together with interest thereon at the Default Rate, as such term is defined in the Note.

 

(b)           Insurance .

 

(i)            Mortgagor, at Mortgagor’s sole expense, shall insure the Property for the benefit of Mortgagee against loss or damage thereto and shall keep in effect, for Mortgagee’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 interest of Mortgagor and Mortgagee.  The insurance proceeds from all such policies of insurance (other than the proceeds in respect of any liability insurance policy) shall be payable to Mortgagee pursuant to a noncontributing mortgagee endorsement satisfactory in form and substance to Mortgagee; except Mortgagee agrees that if such proceeds become payable, and so long

 

6

 

as there is no uncured Default that has taken place hereunder, Mortgagor shall have the right to apply for and receive such proceeds for the sole purpose of repairing, restoring or rebuilding the Property, so damaged or destroyed, and Mortgagor shall give to Mortgagee a complete report of all insurance proceeds expended, together with copies of invoices and other supporting information.  Upon execution of this Mortgage, Mortgagor shall promptly furnish evidence of satisfactory insurance on the Property and that Mortgagor has complied with the other provisions of this Section.  At least fifteen (15) days prior to the expiration of each such policy,  Mortgagor shall furnish Mortgagee with evidence satisfactory to Mortgagee of the payment of premium and the reissuance of a policy continuing insurance in force as required by this Mortgage.  In addition to the other policies of insurance required hereunder, Mortgagor shall cause a title insurer reasonably acceptable to Mortgagee to insure, in favor of Mortgagee, Mortgagor’s ownership of, and Mortgagee’s lien on, the Property, subject only to Permitted Exceptions, in an amount equal to not less than $11,614,197.19 in such form, and with such affirmative coverage and endorsements as Mortgagee may reasonably request.

 

(ii)           Mortgagor shall obtain flood insurance, in such total amount as Mortgagee may from time to time require, and Mortgagor shall otherwise comply with the National Flood Insurance Program as set forth in the said Flood Disaster Protection Act of 1973 or evidence satisfactory to Mortgagee that the Property is not in a federally designated flood plain zone or a “flood prone” area pursuant to the Flood Disaster Protection Act of 1973 (U.S.C.) or any amendments or supplements thereto.

 

(c)           The following is added pursuant to 815 ILCS 180/10:

 

UNLESS YOU PROVIDE US WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY YOUR AGREEMENTS WITH US, PURSUANT TO THE LOAN INSTRUMENTS, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT OUR INTERESTS IN THE PROPERTY.  THIS INSURANCE MAY, BUT NEED NOT, PROTECT YOUR INTERESTS.  THE COVERAGE THAT WE PURCHASE MAY NOT PAY ANY CLAIM THAT YOU MAKE OR ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION WITH THE PROPERTY.  YOU MAY LATER CANCEL ANY INSURANCE PURCHASED BY US, BUT ONLY AFTER PROVIDING US WITH EVIDENCE THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED BY THE LOAN INSTRUMENTS.  IF WE PURCHASE INSURANCE FOR THE PROPERTY, YOU WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES WE MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE.  THE COSTS OF THE INSURANCE MAY BE ADDED TO YOUR TOTAL

 

7

 

OUTSTANDING BALANCE OR OBLIGATION.  THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN.

 

Section 1.07           Condemnation

 

(a)           All compensation, proceeds and awards paid to or received by Mortgagor in any taking by eminent domain or conveyance in lieu thereof that may affect all or any part of or interest in the Property (whether permanently or temporarily), including severance and consequential damages and damages from a change in the grade of any street, are hereby assigned to Mortgagee subject to the terms hereof.  Mortgagor hereby appoints Mortgagee as its attorney-in-fact, coupled with an interest, to collect and receive the proceeds thereof and to give proper receipts therefor.  Mortgagor authorizes and empowers Mortgagee, as such attorney-in-fact, at Mortgagee’s option, on behalf of Mortgagor (notwithstanding the fact that the Obligations may not then be due and payable or that the Obligations are otherwise adequately secured), to adjust or join with Mortgagor in adjusting or compromising the claim for any such compensation, proceeds or awards.  After deducting all costs of collection, such compensation, proceeds and awards shall be applied, at the option of Mortgagee, as follows:  (i) as a credit upon any portion of the Obligations, as selected by Mortgagee; or (ii) to restoring the Improvements.  If Mortgagor is not then in default under any of the Loan Instruments, Mortgagee shall allow the proceeds to be applied as specified in alternative (ii) of the above sentence, with any excess proceeds remaining after restoration of the Improvements to be applied as specified in alternative (i).

 

(b)           In the event Mortgagee elects not to apply such compensation, proceeds or awards to the Obligations (or such application is not permitted above), Mortgagee shall release any such amounts in the same manner and under the same conditions as are specified above for the disbursement of insurance proceeds received in the event of casualty loss to the Property.

 

(c)           Mortgagor agrees to give Mortgagee immediate notice of the actual or threatened commencement of any such eminent domain proceeding, and agrees to promptly send to Mortgagee copies of any and all papers served or received by Mortgagor in connection with any such proceedings.  Mortgagor also agrees to make, execute and deliver to Mortgagee at any time or times, upon request, free, clear and discharged of any encumbrance of any kind whatsoever, any and all further assignments and/or other instruments which are deemed necessary by Mortgagee for the purpose of validly and sufficiently assigning to Mortgagee all such compensation, proceeds and awards to Mortgagee.

 

Section 1.08           Estoppel Certificates .  The Mortgagor, within five (5) days upon request in person or within ten (10) days upon request by mail, shall furnish the Mortgagee a written statement, duly acknowledged, of the amount of the Obligations then secured by this Mortgage and whether to their knowledge any offsets or defenses exist against any such Obligations.

 

8

 

Section 1.09           Indemnification; Subrogation; Waiver of Offset .

 

(a)           If Mortgagee is made a party defendant to any litigation concerning this Mortgage or the Property or any part thereof or interest therein, or the occupancy thereof by Mortgagor, then Mortgagor shall indemnify, defend and hold Mortgagee harmless from all liability by reason of said litigation, including reasonable attorneys’ fees and expenses incurred by Mortgagee in any such litigation, whether or not any such litigation is prosecuted to judgment.  If Mortgagee commences an action against Mortgagor to enforce any of the terms hereof or because of the breach by Mortgagor of any of the terms hereof, or for the recovery of any sum secured hereby, Mortgagor shall pay to Mortgagee, Mortgagee’s reasonable attorneys’ fees and expenses, and the right to such attorneys’ fees and expenses shall be deemed to have accrued on the commencement of such action, and shall be enforceable whether or not such action is prosecuted to judgment.  If Mortgagor breaches any term of this Mortgage, Mortgagee may employ an attorney or attorneys to protect its rights hereunder, and in the event of such employment following any breach by Mortgagor, Mortgagor shall pay Mortgagee reasonable attorneys’ fees and expenses incurred by Mortgagee, whether or not an action is actually commenced against Mortgagor by reason of breach;

 

(b)           Mortgagor waives any and all right to claim or recover against Mortgagee, its officers, employees, agents and representatives, for loss of or damage to Mortgagor, the Property, Mortgagor’s property or the property of others under Mortgagor’s control from any cause insured against or required to be insured against by the provisions of the Mortgage and Mortgagee waives any and all right to claim or recover against Mortgagor, its officers, employees, agents and representatives, for loss of or damage to Mortgagee, or Mortgagee’s property from any cause insured against or required to be insured against by the provisions of the Mortgage;

 

(c)           Except as otherwise provided herein or in any Loan Instruments, all sums payable by Mortgagor hereunder shall be paid without notice, demand, counterclaim, setoff, deduction or defense and without abatement, suspension, deferment, diminution or reduction, and the obligations and liabilities of Mortgagor hereunder shall in no way be released discharged or otherwise affected (except as expressly provided herein) by reason of:  (i) any damage to or destruction of or any condemnation or similar taking of the Property or any part thereof; (ii) any restriction or prevention of or interference with any use of the Property or any part thereof; (iii) any title defect or encumbrance or any eviction from the Property or the Improvements or any part thereof by title paramount or otherwise; (iv) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to Mortgagor, or any action taken with respect to this Mortgage by any trustee or receiver of Mortgagor, or by any court, in any such proceeding; (v) any claim which Mortgagor has or might have against Mortgagee; (vi) any default or failure on the part of Mortgagee to perform or comply with any of the terms hereof or of any other agreement with Mortgagor; or (vii) any other occurrence whatsoever, whether similar or dissimilar to the foregoing.

 

Section 1.10           Usury .  Mortgagor represents and agrees that the proceeds of the Loan Instruments will be used for the purposes specified in 815 ILCS 205/4 and that the Obligations constitute a business loan which comes within the purview of said 815 ILCS 205/4.

 

9

 

ARTICLE 2
Assignment of Rents, Issues and Profits

 

Section 2.01           Assignment of Rents, Issues and Profits .  The Mortgagor hereby assigns and transfers to the Mortgagee, FOR THE PURPOSE OF SECURING the Obligations, all rents, and hereby gives to and confers upon the Mortgagee the right, power and authority to collect the same.  The Mortgagor irrevocably appoints the Mortgagee its true and lawful attorney-in-fact, at its option at any time and from time to time following the occurrence and during the continuance of a Default, to demand, receive and enforce payment, to give receipts, releases and satisfactions, and to sue, in the name of the Mortgagor or otherwise, for rents and apply the same to the Obligations as provided in paragraph (a) of Section 4.03; provided , however, that the Mortgagor shall have the right to collect rents at any time prior to the occurrence of a Default (but not more than one month in advance, except in the case of security deposits).

 

Section 2.02           Collection Upon Default .  To the extent permitted by law, upon the occurrence of any Default, the Mortgagee may, at any time without notice, either in person, by agent or by a receiver appointed by a court, and without regard to the adequacy of any security for the Obligations or the solvency of the Mortgagor, enter upon and take possession of the Property, the Improvements and the Fixtures or any part thereof, in its own name, sue for or otherwise collect Rents including those past due and unpaid, and, apply the same, less costs and expenses of operation and collection, including attorneys’ fees and disbursements, to the payment of the Obligations as provided in paragraph (a) of Section 4.03, and in such order as the Mortgagee may determine.  The collection of Rents or the entering upon and taking possession of the Property, the Improvements or the Fixtures or any part thereof, or the application thereof as aforesaid, shall not cure or waive any Default or notice thereof or invalidate any act done in response to such Default or pursuant to notice thereof.

 

ARTICLE 3
Security Agreement

 

Section 3.01           Creation of Security Interest .  The Mortgagor hereby grants to the Mortgagee a security interest in the Fixtures for the purpose of securing the Obligations.  The Mortgagee shall have, in addition to all rights and remedies provided herein and in the other Loan Instruments, all the rights and remedies of a secured party under the Code.  A statement describing the portion of the Property comprising the fixtures hereby secured is set forth in the granting clauses of this Mortgage.  The Mortgagor represents and warrants to the Mortgagee that the Mortgagor is the owner of the Property, the employer identification number of the Mortgagor is 48-0531-200.

 

Section 3.02           Warranties, Representations and Covenants .  The Mortgagor hereby warrants, represents and covenants that:  (a) the Fixtures will be kept on or at the Property and the Mortgagor will not remove any Fixtures from the Property, except as permitted under the Loan Instruments and except such portions or items of the Fixtures that are consumed or worn out in ordinary usage, all of which shall be promptly replaced by the Mortgagor, except as otherwise expressly provided in the Loan Instruments, (b) all covenants and obligations of the Mortgagor contained herein relating to the Property shall be deemed to apply to the Fixtures whether or not expressly referred to herein and (c) this Mortgage constitutes a security agreement and “fixture filing” as those terms are used in the Code.  The Mortgagor is the “Debtor” and its name and mailing address are set forth on Page 1 hereof.  The Mortgagee is the “Secured Party” and its name and mailing address from which information relative to the security interest created

 

10

 

hereby are also set forth on Page 1 hereof and is authorized by Mortgagor, as the “Debtor” to file such financing statements in such public offices as Mortgagee deems necessary to perfect the security interests granted hereunder.  The information provided in this Section 3.02 is provided so that this Mortgage shall comply with the requirements of the Code for a mortgage instrument to be filed as a financing statement.

 

ARTICLE 4
Defaults; Remedies

 

Section 4.01           Defaults .  To the extent permitted by law, if any of the following events shall occur (a “ Default ”):  (i) a default or event of default under the Restructuring Agreement, the Note or any of the Loan Instruments, (ii) the failure of Mortgagor to pay the Obligations as said Obligations become due in accordance with the terms of the Restructuring Agreement, the Note or the Loan Instruments, (iii) failure by Mortgagor to punctually and fully perform and observe each term, covenant, agreement or condition contained in the Loan Instruments, including this Mortgage, (iv) a sale, transfer, conveyance, lease, contract for deed, or other disposition of all or any part of the Property, (v) title to the Property is or becomes unsatisfactory to the Mortgagee by reason of any lien, charge, encumbrance, title condition or exception, then the Obligations of the Mortgagor shall become due and payable, without presentment, demand, protest or other formalities of any kind, all of which have been waived pursuant to the Loan Instruments, (vi) Mortgagor files a petition in bankruptcy or, for an arrangement, or for reorganization pursuant to the federal Bankruptcy Code or any similar law, federal or state; files a petition or answer consenting to, or acquiescing in, a reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief, under any present or future statute, law or regulation; is adjudicated as a bankrupt; is determined to be insolvent by a decree of a court of competent jurisdiction; makes an assignment for the benefit of creditors; admits its inability to pay its debts generally as they become due; or consents to the appointment of a receiver or receivers of all or any part of its assets, (vii) the granting or entry of a final judgment, order or decree for the payment of money against Mortgagor, and Mortgagor’s failure to stay or discharge the same or cause it to be stayed or discharged within thirty (30) days after the date of a written notice from Mortgagee, if in the judgment of Mortgagee the granting or entry adversely affects Mortgagee’s security interest in the Property or Mortgagor’s ability to manage and operate the Property, or (viii) a default or event of default under that certain Mortgage, dated April 15, 2009, from Mortgagor to Exchange National Bank & Trust Co., (“Superior Lender”) recorded as Document number 200900008285 in the Records of the Tazewell County Recorder of Deeds records (&ld