Exhibit 4.1.7
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This Mortgage was prepared by and when recorded
should be mailed to:
Bryan Cave LLP
Attn: Trevor A. Jenkins
1200 Main Street, Suite 3500
Kansas City, Missouri 64105
Permanent Tax Identification Numbers described
herein:
10-10-09-200-001
10-10-09-200-010
04-10-04-400-002
Street Address of Property described
herein:
1301 South Front Street
Pekin, Illinois
Space above reserved for Recorder’s Use
Only
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THIS INSTRUMENT SHOULD BE FILED
AS A MORTGAGE
AND AS A FIXTURE FILING (with future advance clause)
THE NAME OF THE RECORD FEE SIMPLE OWNER OF THE PROPERTY IS:
MGP INGREDIENTS, INC., a Kansas corporation,
formerly known as Midwest Grain Products, Inc., a Kansas
corporation
THE FEIN# OF THE DEBTOR IS:
48-0531-200
MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING FUTURE
ADVANCES ARE SECURED HEREBY PURSUANT TO 735 ILCS 5/15-1302 TO THE
MAXIMUM
AMOUNT OF $25,000,000.
THIS LIMITATION DOES NOT INCLUDE INTEREST,
ATTORNEYS’ FEES, DISBURSEMENTS OR OTHER COSTS AND EXPENSES
WHICH MORTGAGEE MAY COLLECT PURSUANT TO THIS MORTGAGE (AS
DEFINED HEREIN), THE LOAN DOCUMENTS (AS DEFINED HEREIN) OR UNDER
APPLICABLE LAW. ˆ!
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THIS MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING (this “ Mortgage
”) is executed as of August 19, 2009, by MGP
INGREDIENTS, INC., a Kansas corporation (“ Mortgagor
”), to WELLS FARGO BANK, NATIONAL ASSOCIATION (“
Mortgagee ”).
ARTICLE I. MORTGAGE
1.1
Grant . For the purposes and upon the terms and
conditions in this Mortgage, Mortgagor irrevocably mortgages,
grants, conveys, assigns, bargains, sells, releases, aliens,
transfers and remises to Mortgagee and its successors and assigns
forever and hereby represents and warrants to Mortgagee with the
right of entry and possession, and grants to mortgagee and its
successors and assigns forever a continuing security interest in
and to, Mortgagor’s interest in: (a) all real property
located in Tazewell County, Illinois, and described on
Exhibit A attached hereto; (b) all easements,
rights-of-way and rights used in connection with or as a means of
access to any portion of said real property; (c) all
tenements, hereditaments and appurtenances thereof and thereto;
(d) all right, title and interest of Mortgagor, now owned or
hereafter acquired, in and to any land lying within the
right-of-way of any street, open or proposed, adjoining said real
property, and any and all sidewalks, alleys and strips and gores of
land adjacent to or used in connection with said real property;
(e) all buildings, improvements and landscaping now or
hereafter erected or located on said real property; (f) all
development rights, governmental or quasi-governmental licenses,
permits or approvals, zoning rights and other similar rights or
interests which relate to the development, use or operation of, or
that benefit or are appurtenant to, said real property;
(g) all mineral rights, oil and gas rights, air rights, water
or water rights, owned by Mortgagor, including without limitation,
all wells, canals, ditches and reservoirs of any nature and all
rights thereto, appurtenant to or associated with said real
property, whether decreed or undecreed, tributary or non-tributary,
surface or underground, appropriated or unappropriated, and all
shares of stock in any water, canal, ditch or reservoir company,
and all well permits, water service contracts, drainage rights and
other evidences of any such rights; (h) all, fixtures
(including, without limitation, all heating, air conditioning,
plumbing, lighting, communications and elevator fixtures) and
(i) all interest or estate which Mortgagor now has or may
hereafter acquire in said real property and all additions and
accretions thereto, and all awards or payments made for the taking
of all or any portion of said real property by eminent domain or
any proceeding or purchase in lieu thereof, or any damage to any
portion of said real property (collectively, the “ Subject
Property ”). The listing of specific rights or
property shall not be interpreted as a limitation of general
terms.
TO HAVE AND TO HOLD the Subject
Property unto Mortgagee, its successors and assigns forever, for
the purposes and uses set forth in this Mortgage, and Mortgagor
covenants with and warrants to Mortgagee that, at the execution and
delivery of this Mortgage, Mortgagor holds fee simple title to, or
if permitted in writing, a valid leasehold estate in, the Subject
Property and has a good and marketable indefeasible estate therein
and that the Subject Property is free from all encumbrances and
claim of any other person. Mortgagor does under this Mortgage
bind itself, its successors and assigns, to WARRANT AND FOREVER
DEFEND the Subject Property against all claims and demands
whatsoever, except as disclosed to Mortgagee prior to the date
hereof in a writing that refers to this warranty.
PROVIDED, HOWEVER, that if and when
Mortgagor has paid all of the Secured Obligations (defined below)
and performed and observed all of the agreements, terms,
conditions, provisions, and warranties relating to the Secured
Obligations, this Mortgage and the estate, right, and interest of
Mortgagee in and to the Subject Property shall cease and be
released at the cost of Mortgagor, but otherwise, shall remain in
full force and effect. Mortgagee shall be entitled to charge
a reasonable release fee.
1.2
Grant of Security Interest;
Security Agreement . This Mortgage is intended to be a
security agreement pursuant to the Illinois Uniform Commercial Code
(“ UCC ”) for any items of personal property
specified above as part of the Subject Property which, under
applicable law, may be subject to a security interest pursuant to
the Illinois Uniform Commercial Code and which are not herein
effectively
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made part of the real property, and Mortgagor
hereby grants Mortgagee a security interest in said personal
property, and in all additions thereto, substitutions therefor and
proceeds thereof, for the purpose of securing all indebtedness and
other obligations of Mortgagor now or hereafter secured by this
Mortgage, all of which shall be deemed part of the Subject
Property. Mortgagor authorizes the filing of financing and
continuation statements covering said personal property from time
to time and in such form as Mortgagee may require to perfect and
continue the perfection of Mortgagee’s lien or security
interest with respect to said personal property and all the Subject
Property. Mortgagor shall pay all costs of filing such
statements and renewals and releases thereof and shall pay all
reasonable costs and expenses of any record searches for financing
statements Mortgagee may reasonably require. Without the
prior written consent of Mortgagee, Mortgagor shall not create or
suffer to be created any other security interest in any part of
said Subject Property, including replacements and additions
thereto. Upon the occurrence of any default of Mortgagor
hereunder, Mortgagee shall have the rights and remedies of a
secured party under the UCC as well as all other rights and
remedies available at law or in equity, and, at Mortgagee’s
option, Mortgagee may also invoke the remedies provided in
Article V of this Mortgage as to such personal property
and all the portions of the Subject Property which are personal
property.
1.3
Fixture Filing
. Certain of the Subject
Property is or will become “fixtures” (as that term is
defined in the UCC) on the Subject Property. Upon recording
this Security Instrument in the real property records, this
Security Instrument shall be effective as a financing statement
filed as a fixture filing. In addition, a carbon,
photographic or other reproduction of this Security Instrument
and/or any financing statement relating hereto shall be sufficient
for filing and/or recording as a financing statement. The
filing of any other financing statement relating to any personal
property rights or interests described herein shall not be
construed to diminish any right or priority hereunder.
1.4
Address . The address of the Subject Property (if
known) is: 1301 South Front Street, Pekin, Illinois.
Neither the failure to designate an address nor any inaccuracy in
the address designated shall affect the validity or priority of the
lien of this Mortgage on the Subject Property as described on
Exhibit A . In the event of any conflict between
the provisions of Exhibit A and said address,
Exhibit A shall control.
1.5
Usury . Mortgagor represents and agrees that the
proceeds of the Loan Documents will be used for the purposes
specified in 815 ILCS 205/4 and that the Secured Obligations
constitute a business loan which comes within the purview of said
815 ILCS 205/4.
ARTICLE II. OBLIGATIONS
SECURED
2.1
Obligations Secured
. Mortgagor makes this grant
and assignment for the purpose of securing the following
obligations (each, a “Secured Obligation” and
collectively, the “Secured Obligations”):
(a)
payment to Mortgagee of all sums at
any time owing and performance of all other obligations arising
under or in connection with that certain promissory note (“
Note ”) dated as of July 21, 2009, in the
principal amount of Twenty Five Million and N0/100 Dollars
($25,000,000), with interest as provided therein, executed by
Mortgagor and payable to Mortgagee or its order, together with the
payment and performance of any other indebtedness or obligations
incurred in connection with the credit accommodation evidenced by
the Note, whether or not specifically referenced therein;
and
(b)
payment and performance of all
obligations of Mortgagor under this Mortgage, together with all
advances, payments or other expenditures made by Mortgagee as or
for the payment or performance of any such obligations of
Mortgagor; and
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(c)
payment and performance of all
obligations, if any, and the contracts under which they arise,
which any rider attached to and recorded with this Mortgage recites
are secured hereby; and
(d)
payment to Mortgagee of all
liability, whether liquidated or unliquidated, defined, contingent,
conditional or of any other nature whatsoever, and performance of
all other obligations, arising under any swap, derivative, foreign
exchange or hedge transaction or arrangement (or other similar
transaction or arrangement howsoever described or defined) at any
time entered into with Mortgagee in connection with any Secured
Obligation; and
(e)
payment and performance of all
future advances (whether obligatory or to be made at the option of
Mortgagee, or otherwise) made by Mortgagee, to the same extent as
if such future advances were made on the date of execution of this
Mortgage, and other obligations that the then record owner of the
Subject Property may agree to pay and/or perform (whether as
principal, surety or guarantor) for the benefit of Mortgagee, when
any such advance or other obligation is evidenced by a writing
which recites that it is secured by this Mortgage; and
(f)
all modifications, extensions and
renewals of any of the Secured Obligations (including without
limitation, (i) modifications, extensions or renewals at a
different rate of interest, or (ii) deferrals or accelerations
of the required principal payment dates or interest payment dates
or both, in whole or in part), however evidenced, whether or not
any such modification, extension or renewal is evidenced by a new
or additional promissory note or notes.
2.2
Obligations
. The term
“obligations” is used herein in its most comprehensive
sense and includes any and all advances, debts, obligations and
liabilities heretofore, now or hereafter made, incurred or created,
whether voluntary or involuntary and however arising, whether due
or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, joint or several, including without
limitation, all principal, interest, charges, including prepayment
charges and late charges, and loan fees at any time accruing or
assessed on any Secured Obligation.
2.3
Incorporation
. All terms of the Secured
Obligations are incorporated herein by this reference. All
persons who may have or acquire an interest in the Subject Property
are hereby deemed to have notice of the terms of the Secured
Obligations and to have notice, if provided therein, that:
(a) the Note or any other Secured Obligation may permit
borrowing, repayment and reborrowing; and (b) the rate
of interest on one or more of the Secured Obligations may vary from
time to time.
2.4
Maximum Secured Amount
. The maximum amount secured
by this Mortgage may decrease or increase from time to time, but
shall never exceed twice the aggregate amount of the Note and each
other instrument, agreement or obligation specifically described
herein or in any rider attached to and recorded with this Mortgage,
or otherwise incorporated herein by reference, including any of the
foregoing which is incorporated into this Mortgage by a
modification or similar document recorded subsequent to the date
hereof. The maximum amount secured by this Mortgage shall not
in any way imply that Mortgagee shall be obligated to advance any
amount at any time. Advances of disbursements made by
Mortgagee to protect the security, under the terms hereof, shall
not be deemed to be optional advances.
2.5
Future Advances
. Mortgagor acknowledges and
intends that any future advances, whenever hereafter made, shall be
a lien from the time this Mortgage is recorded, as provided in
Section 5/15-1302(b)(1) of the Illinois Mortgage
Foreclosure Law (the “ Mortgage Act ”), 735 ILCS
5/15-1101, et seq.,. That portion of the obligations which
comprises the principal amount then outstanding under the loans
constitutes indebtedness secured by a mortgage on real property,
pursuant to the terms and conditions of 205 ILCS 5/5d, Mortgagor
covenants and agrees that this Mortgage shall secure the payment of
all loans and advances made pursuant to the terms and provisions of
the Credit Agreement, the Note and the other Loan Documents whether
such loans and advances are made as of the date
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hereof or at any time in the future, and whether
such future advances are obligatory or are to be made at the option
of Mortgagee or otherwise (but not advances or loans made more than
20 years after the date hereof), to the same extent as if such
future advances were made on the date of the execution of this
Mortgage and although there may be no advances made at the time of
the execution of this Mortgage and although there may be no other
Secured Obligations outstanding at the time any advance is
made. The lien of this Mortgage shall be valid as to all
Secured Obligations, including future advances, from the time of
its filing of record in the office of the Recorder of Deeds of the
County in which the Subject Property is located. The total
amount of the Secured Obligations may increase or decrease from
time to time, but the total unpaid principal balance of the Secured
Obligations (including disbursements which Mortgagee may make under
this Mortgage or any other document or instrument evidencing or
securing the Secured Obligations) at any time outstanding may be
substantially less but shall not exceed the amount referred to in
Section 2.4 of this Mortgage. This Mortgage shall
be valid and shall have priority over all subsequent liens and
encumbrances, including statutory liens, except taxes and
assessments levied on the Subject Property, to the extent of the
maximum amount secured hereby.
2.6
Illinois Mortgage Foreclosure
Law . It is the
intention of Mortgagor and Mortgagee that the enforcement of the
terms and provisions of this Mortgage shall be accomplished in
accordance with the Mortgage Act and with respect to such Mortgage
Act, Mortgagor agrees and covenants that:
(a)
Mortgagor and
Mortgagee shall have the benefit of all of the provisions of the
Mortgage Act, including, to the extent provided by law, all
amendments thereto which may become effective from time to time
after the date hereof. In the event any provision of the
Mortgage Act which is specifically referred to herein may be
repealed, Mortgagee shall have the benefit of such provision as
most recently existing prior to such repeal, as though the same
were incorporated herein by express reference;
(b)
Wherever
provision is made in this Mortgage for insurance policies to bear
mortgagee clauses or other loss payable clauses or endorsements in
favor of Mortgagee, or to confer authority upon Mortgagee to settle
or participate in the settlement of losses under policies of
insurance or to hold and disburse or otherwise control use of
insurance proceeds, from and after the entry of judgment of
foreclosure, all such rights and powers of Mortgagee shall continue
in Mortgagee as judgment creditor or mortgagee until confirmation
of sale;
(c)
Except as varied
by a court of law, all advances, disbursements and expenditures
made or incurred by Mortgagee before and during a foreclosure, and
before and after judgment of foreclosure, and at any time prior to
sale, and, where applicable, after sale, and during the pendency of
any related proceedings, for the purpose of preserving or restoring
the Subject Property, preserving the lien of the Mortgage or the
priority thereof, or enforcing the Mortgage, in addition to those
otherwise authorized by this Mortgage or the other Loan Documents
or by the Mortgage Act (collectively “ Protective Advances ”), shall have the
benefit of all applicable provisions of the Mortgage Act. All
Protective Advances shall be so much additional indebtedness
secured by this Mortgage, and shall become immediately due and
payable without notice and with interest thereon from the date of
the advance until paid at the rate of interest payable after
default under the terms of the Credit Agreement. This
Mortgage shall be a lien for all Protective Advances as to
subsequent purchasers and judgment creditors from the time this
Mortgage is recorded pursuant to Subsection (b)(5) of
Section 5/15-1302 of the Mortgage Act;
(d)
In addition to
any provision of this Mortgage authorizing Mortgagee to take or be
placed in possession of the Subject Property, or for the
appointment of a receiver, Mortgagee shall have the right, in
accordance with Sections 5/15-1701 and 5/15-1702 of the Mortgage
Act, to be placed in possession of the Subject Property or at its
request to have a receiver appointed, and such receiver, or
Mortgagee, if and when placed in possession, shall have, in
addition to any other powers provided in this Mortgage, all rights,
powers, immunities, and duties as provided for in Sections
5/15-1701, 5/15-1703 and 5/15-1704 of the Mortgage Act;
and
(e)
Mortgagor
acknowledges that the Subject Property does not constitute
agricultural real estate, as said term is defined in
Section 5/15-1201 of the Mortgage Act or residential real
estate as
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defined in
Section 5/15-1219 of the Mortgage Act. As provided by
law and pursuant to Section 5/15-1601(b) of the Mortgage
Act, Mortgagor hereby waives any and all right of
redemption.
ARTICLE III. ASSIGNMENT OF
RENTS
3.1
Assignment
. For the purposes and upon
the terms and conditions set forth herein, Mortgagor irrevocably
assigns to Mortgagee all of Mortgagor’s right, title and
interest in, to and under all leases, licenses, rental agreements
and other agreements of any kind relating to the use or occupancy
of any of the Subject Property, whether existing as of the date
hereof or at any time hereafter entered into, together with all
guarantees of and security for any tenant’s or lessee’s
performance thereunder, and all amendments, extensions, renewals
and modifications thereto (each, a “ Lease ” and
collectively, the “ Leases ”), together with any
and all other rents, issues and profits of the Subject Property
(collectively, “ Rents ”). This assignment
shall not impose upon Mortgagee any duty to produce Rents from the
Subject Property, nor cause Mortgagee to be: (a) a
“mortgagee in possession” for any purpose;
(b) responsible for performing any of the obligations of the
lessor or landlord under any Lease; or (c) responsible for any
waste committed by any person or entity at any time in possession
of the Subject Property or any part thereof, or for any dangerous
or defective condition of the Subject Property, or for any
negligence in the management, upkeep, repair or control of the
Subject Property. This is an absolute assignment, not an
assignment for security only, and Mortgagee’s right to Rents
is not contingent upon and may be exercised without taking
possession of the Subject Property. Mortgagor agrees to
execute and deliver to Mortgagee, within five (5) days of
Mortgagee’s written request, such additional documents as
Mortgagee may reasonably request to further evidence the assignment
to Mortgagee of any and all Leases and Rents. Mortgagee, at
Mortgagee’s option and without notice, may notify any lessee
or tenant of this assignment of the Leases and Rents.
3.2
Protection of Security
. To protect the security of
this assignment, Mortgagor agrees:
(a)
At Mortgagor’s sole cost and
expense: (i) to perform each obligation to be performed
by the lessor or landlord under each Lease and to enforce or secure
the performance of each obligation to be performed by the lessee or
tenant under each Lease; (ii) not to modify any Lease in any
material respect, i.e. affecting the rent or other payments, length
of term, identity of tenant, or substantially affect the
landlord’s or tenant’s obligations thereunder; nor
accept surrender under or terminate the term of any Lease;
(iii) not to anticipate the Rents under any Lease; and
(iv) not to waive or release any lessee or tenant of or from
any Lease obligations. Mortgagor assigns to Mortgagee all of
Mortgagor’s right and power to modify the terms of any Lease
(except for nonmaterial modifications as described above), to
accept a surrender under or terminate the term of or anticipate the
Rents under any Lease, and to waive or release any lessee or tenant
of or from any Lease obligations, and any attempt on the part of
Mortgagor to exercise any such rights or powers without
Mortgagee’s prior written consent shall be a breach of the
terms hereof.
(b)
At Mortgagor’s sole cost and
expense, to defend any action in any manner connected with any
Lease or the obligations thereunder, and to pay all costs of
Mortgagee, including reasonable attorneys’ fees, in any such
action in which Mortgagee may appear.
(c)
That, should Mortgagor fail to do
any act required to be done by Mortgagor under a Lease, then
Mortgagee, but without obligation to do so and without notice to
Mortgagor and without releasing Mortgagor from any obligation
hereunder, may make or do the same in such manner and to such
extent as Mortgagee deems necessary to protect the security hereof,
and, in exercising such powers, Mortgagee may employ attorneys and
other agents, and Mortgagor shall pay necessary costs and
reasonable attorneys’ fees incurred by Mortgagee, or its
agents, in the exercise of the powers granted herein.
Mortgagor shall give prompt notice to Mortgagee of any material
default by any lessee or tenant under any Lease which continues
beyond a reasonable cure period, and of any notice of default
on
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the part of Mortgagor under any Lease received
from a lessee or tenant thereunder, which continues beyond a
reasonable cure period, together with an accurate and complete copy
thereof.
(d)
To pay to Mortgagee immediately upon
demand all sums expended under the authority hereof, including
reasonable attorneys’ fees, together with interest thereon at
the highest rate per annum payable under any Secured Obligation,
and the same, at Mortgagee’s option, may be added to any
Secured Obligation and shall be secured hereby.
3.3
License . Mortgagee confers upon Mortgagor a
license (“ License ”) to collect and retain the
Rents as, but not before, they come due and payable, until the
occurrence of any Default. Upon the occurrence of any
Default, the License shall be automatically revoked, and Mortgagee
may, at Mortgagee’s option and without notice, either in
person or by agent, with or without bringing any action, or by a
receiver to be appointed by a court: (a) enter, take
possession of, manage and operate the Subject Property or any part
thereof; (b) make, cancel, enforce or modify any Lease;
(c) obtain and evict tenants, fix or modify Rents, and do any
acts which Mortgagee deems proper to protect the security hereof;
and (d) either with or without taking possession of the
Subject Property, in its own name, sue for or otherwise collect and
receive all Rents, including those past due and unpaid, and apply
the same in accordance with the provisions of this Mortgage.
The entering and taking possession of the Subject Property, the
collection of Rents and the application thereof as aforesaid, shall
not cure or waive any Default, nor waive, modify or affect any
notice of default hereunder, nor invalidate any act done pursuant
to any such notice. The License shall not grant to Mortgagee
the right to possession, except as provided in this Mortgage.
Any indemnifications of Mortgagor in favor of Mortgagee hereunder
shall not extend to actions taken by Mortgagee with respect to the
Subject Property or the tenants or lessees after Mortgagee’s
revocation of the License contained herein.
ARTICLE IV. RIGHTS AND DUTIES OF THE
PARTIES
4.1
Title . Mortgagor warrants that, except as
disclosed to Mortgagee prior to the date hereof in a writing which
refers to this warranty, Mortgagor lawfully possesses and holds fee
simple title to, or if permitted by Mortgagee in writing, a
leasehold interest in, the Subject Property without limitation on
the right to encumber, as herein provided, and that this Mortgage
is a valid lien on the Subject Property and all of
Mortgagor’s interest therein.
4.2
Taxes and Assessments
. Subject to the right, if
any, of Mortgagor to contest payment of the following pursuant to
any other agreement between Mortgagor and Mortgagee, Mortgagor
shall pay prior to delinquency all taxes, assessments, levies and
charges imposed: (a) by any public or quasi-public authority
or utility company which are or which may become a lien upon or
cause a loss in value of the Subject Property or any interest
therein; or (b) by any public authority upon Mortgagee by
reason of its interest in any Secured Obligation or in the Subject
Property, or by reason of any payment made to Mortgagee pursuant to
any Secured Obligation; provided however, that Mortgagor shall have
no obligation to pay any income taxes of Mortgagee. Promptly
upon request by Mortgagee, Mortgagor shall furnish to Mortgagee
satisfactory evidence of the payment of all of the foregoing.
Mortgagee is hereby authorized to request and receive from the
responsible governmental and non-governmental personnel written
statements with respect to the accrual and payment of any of the
foregoing.
4.3
Performance of Secured
Obligations .
Mortgagor shall promptly pay and perform each Secured Obligation
when due.
4.4
Liens, Encumbrances and
Charges . Mortgagor
shall immediately discharge any lien on the Subject Property not
approved by Mortgagee in writing. The preceding sentence does
not apply to liens which are exceptions to the title of the Subject
Property and which are actually set forth in Title Commitment
No. NCS-406271 dated July 30, 2009, issued by First
American Title Insurance Company, nor liens arising hereafter for
ordinary real estate taxes and assessments. Except as
otherwise provided
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in any Secured Obligation or other agreement
with Mortgagee, Mortgagor shall pay when due all obligations
secured by or reducible to liens and encumbrances which shall now
or hereafter encumber the Subject Property, whether senior or
subordinate hereto, including without limitation, any
mechanics’ liens, although if Mortgagor feels that any
mechanic’s lien is filed in excess of the true amount owing
to the mechanic’s lien claimant, Mortgagor may (so long as
Mortgagor has not committed any Default hereunder) upon depositing
with Mortgagee an amount equal to such claim, contest the amount
and validity of such mechanic’s lien, and during the entire
period of such contest shall defend and indemnify Mortgagee against
any loss, cost or expense incurred by Mortgagee thereby, and
Mortgagor shall in any event pay the full amount of any final and
nonappealable judgment resulting from such mechanic’s lien at
least thirty (30) days before any sale or other execution resulting
from such judgment is scheduled to take place.
4.5
Insurance . Mortgagor shall insure the Subject
Property against loss or damage by fire and such other risks as
Mortgagee shall from time to time require. Mortgagor shall
carry public liability insurance, flood insurance as may be
required by applicable law and such other insurance as Mortgagee
may reasonably require and which is typical for commercial
properties in the vicinity of and of similar nature to the
Property, including without limitation, business interruption
insurance or loss of rental value insurance. Mortgagor shall
maintain all required insurance at Mortgagor’s expense, under
policies issued by companies and in form and substance reasonably
satisfactory to Mortgagee (Mortgagee hereby agrees that
mortgagor’s current insurers, of which Mortgagee has been
advised, are satisfactory). Mortgagee, by reason of
accepting, rejecting, approving or obtaining insurance, shall not
incur any liability for: (a) the existence, nonexistence, form
or legal sufficiency thereof; (b) the solvency of any insurer;
or (c) the payment of losses. All policies and
certificates of insurance shall name Mortgagee as an additional
loss payee, and shall provide that the insurance cannot be
terminated as to Mortgagee except upon a minimum of ten
(10) days’ prior written notice to Mortgagee.
Immediately upon any request by Mortgagee, Mortgagor shall deliver
to Mortgagee duplicates of the original copies of all such policies
or certificates, with receipts evidencing annual prepayment of the
premiums.
4.6
Tax and Insurance
Impounds . In the
event any Default occurs hereunder, and provided that a tax and
insurance impound is not then being implemented by the holder of a
mortgage on the Subject Property which is senior to the lien of
this Mortgage, then at any time thereafter upon written notice from
Mortgagee to Mortgagor,, Mortgagor shall, until all Secured
Obligations have been paid in full, pay to Mortgagee monthly,
annually or as otherwise directed by Mortgagee an amount estimated
by Mortgagee to be equal to: (a) all taxes, assessments,
levies and charges imposed by any public or quasi-public authority
or utility company which are or may become a lien upon the Subject
Property and will become due for the tax year during which such
payment is so directed; and (b) premiums for fire, other
hazard and mortgage insurance next due. If Mortgagee
determines that amounts paid by Mortgagor are insufficient for the
payment in full of such taxes, assessments, levies and/or insurance
premiums, Mortgagee shall notify Mortgagor of the increased amount
required for the payment thereof when due, and Mortgagor shall pay
to Mortgagee such additional amount within thirty (30) days after
notice from Mortgagee. All amounts s