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MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING FUTURE

Mortgage Agreement

MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING FUTURE | Document Parties: MGP INGREDIENTS INC | Bryan Cave LLP You are currently viewing:
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MGP INGREDIENTS INC | Bryan Cave LLP

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Title: MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING FUTURE
Governing Law: Illinois     Date: 9/11/2009
Industry: Food Processing     Law Firm: Bryan Cave     Sector: Consumer/Non-Cyclical

MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING FUTURE, Parties: mgp ingredients inc , bryan cave llp
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Exhibit 4.1.7

 

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

 

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


 
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