MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT
Exhibit 10.18
MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT
(“this Mortgage”) is made this 18 day of June 2007 between ONE EARTH ENERGY,
LLC, an Illinois limited liability company (“Mortgagor”), whose address is 0000 Xxxx 0xx
Xxxxxx, Xxxxxx Xxxx, XX 00000-0000, and FARMERS ENERGY ONE EARTH, LLC, an Ohio limited liability
company (“Mortgagee”), whose address is 0000 Xxxxxxxx Xxxx, Xxxxxx, XX 00000.
Preliminary Statement
Mortgagor is the owner of the Land (as herein after defined) and improvements thereon.
Pursuant to a Promissory Note of even date herewith (the “Note”), Mortgagor has borrowed up to Six
Million and 0/100 Dollars ($6,000,000) from Mortgagee.
NOW, THEREFORE, in consideration of the premises and to secure the payment, performance and
observance by Mortgagor of the Note and the obligations of Mortgagor as hereinafter provided,
Mortgagor does hereby GRANT, WITH MORTGAGE COVENANTS, TO MORTGAGEE, its successors and assigns
forever, all of Mortgagor’s estate, right, title and interest in, to and under the property
described in Paragraphs A through J below, all of which is referred to herein as the “Mortgaged
Property”, whether now owned or held or hereafter acquired:
A. Land. The real property described in Exhibit A attached hereto (the
“Land”).
B. Improvements. All buildings, structures and improvements, and all additions or
alterations thereto, now or hereafter erected on the Land, including but not limited to any
attachments, apparatus and other articles now or hereafter attached to such buildings,
structures and improvements (collectively, the “Improvements”).
C. Fixtures. All right, title and interest of Mortgagor in and to all
materials, supplies, equipment, apparatus, personal property, goods and other items, excluding
inventory and motor vehicles, now or hereafter attached to, installed in, located on or used in
connection with (temporarily or permanently) any of the Improvements or the Land, including but not
limited to, all partitions, window screens, shades, drapes and other window coverings, carpets,
rugs, and other floor coverings, furniture, furnishings, awnings, motors, engines, boilers,
furnaces, pipes, plumbing, sprinkler systems, fire prevention or extinguishing apparatus and
equipment, water tanks, light fixtures, communication systems, appliances, antennas, building
materials, landscaping, and all equipment, machinery, fixtures and fittings used in connection with
the generation, distribution, regulation, or metering of air, water, heat, electricity, fuel or
refrigeration or for ventilating or sanitary purposes or for the exclusion of vermin or insects or
for the removal of dust, refuse or garbage, it being intended and agreed that all such items be
conclusively deemed to be fixtures (collectively, “Fixtures”). The Land, the Improvements
and the Fixtures are sometimes hereafter referred to, collectively, as the “Property.”
D. Leases, Rents, etc. All leases, subleases, licenses, concessions or other
agreements now or hereafter in effect, which grant to a third party a possessory interest in, or
right to use, all or a portion of the Property (collectively, “Leases”), and the rents,
issues, profits, royalties, income and other benefits payable under all such Leases, including
without limitation, all security deposits, advance rentals and deposits or payments of a similar
nature, or otherwise arising from the use or enjoyment of all or any portion of the Property
(collectively, “Rents”). As long as no “Default” (as hereinafter defined) exists under
this Mortgage, the grant contained in this Paragraph D is subject to the right of Mortgagor to
collect and use the Rents from each lease (but not more than one month in advance).
E. Easements. Any and all easements, rights-of-way (including rights in any open or
proposed street), sidewalks, alleys, strips of land, waters, water rights and powers and shares of
stock evidencing the same and other rights, used in connection with the Property or as a means of
access thereto or which are otherwise of benefit thereto to the users thereof, and all tenements,
hereditament and appurtenances thereto.
F. Proceeds. All proceeds of the conversion of the Mortgaged Property, whether
voluntary or involuntary, into cash or liquidated claims, any and all awards (or claims for awards)
made for a taking by eminent domain, or by any event in lieu thereof, of all or any part of the
Mortgaged Property, including, without limitation, awards for severance damages, any proceeds (or
claims for proceeds) of casualty, liability or other insurance pertaining to the Mortgaged Property
or otherwise required hereunder and all refunds of real estate taxes and assessments with respect
to the Property (collectively, “Awards and Proceeds”).
G. Claims. Any claim or demand against anyone with respect to damage to the Mortgaged
Property, including without limitation, damage arising from any defect in the design or
construction of the Improvements or in the condition of the Property (collectively,
“Claims”).
H. Deposits. Deposits or security or advance payments made by or on behalf of
Mortgagor to others with respect to (a) insurance policies relating to the Mortgaged Property, (b)
utility services for the Mortgaged Property and (c) maintenance, repair or similar services for the
Mortgaged Property (collectively, “Deposits”).
I. Contract Rights and Permits. All management agreements, construction contracts,
architects’ agreements, payment and performance bonds, licenses, permits, certificates and other
contracts necessary or useful in connection with the ownership, use, enjoyment, occupancy,
management or operation of the Property (collectively, “Contract Rights”).
J. Additional Interests. All interests, estate or other claims, both in law and in
equity, which Mortgagor now has or may hereafter acquire in the Mortgaged Property or any part
thereof or any interest therein.
TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto Mortgagee, its
successors and assigns, to its own proper use and benefit forever, subject, however, to the terms
and conditions herein.
THIS MORTGAGE IS GIVEN TO SECURE:
(i) Payment of the indebtedness evidenced by the Note, including any extensions, renewals or
modifications thereof, all interest thereon at the interest rate from time to time applicable
thereunder (the “Interest Rate”), or, if applicable the default rate established thereunder
(the “Default Rate”), and all other sums payable pursuant thereto.
(ii) Payment, performance and observance of each obligation, covenant and agreement of
Mortgagor contained in the Note and in any and all security agreements, or other security
instruments executed now or hereafter by Mortgagor for the purpose of further evidencing or
securing all or part of the indebtedness secured by this Mortgage, or for the purpose of
supplementing or amending this Mortgage or any instrument secured hereby.
(iii) Payment of all sums advanced by Mortgagee hereunder or under the Note, with interest
thereon at the Interest Rate or, if applicable, the Default Rate.
If Mortgagor pays the principal and interest secured by this Mortgage, performs the other
obligations secured hereby and the conditions of this and any prior mortgage, pays all taxes and
assessments, maintains insurance against fire and other hazards, and does not commit or suffer
waste, then this Mortgage shall be void.
IT IS A FURTHER CONDITION OF THIS MORTGAGE, AND MORTGAGOR HEREBY FURTHER REPRESENTS, WARRANTS,
COVENANTS AND AGREES AS FOLLOWS:
1. PAYMENT OF NOTE. Mortgagor shall pay the principal of and interest on, and other sums due
under, the Note and pay all other monies and indebtedness secured by this Mortgage, in legal tender
of the United States, when and as the same become due, as provided
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thereby or hereby. Mortgagor
shall pay any taxes, except income taxes, imposed on Mortgagee by reason of its ownership of the
Note or this Mortgage.
2. TITLE. Mortgagor represents and warrants that it is the owner of good and marketable title
in fee simple to all of the Mortgaged Property, free and clear of all restrictions, encumbrances,
liens and claims whatsoever, excepting only the matters set forth on Exhibit B (the “Permitted
Exceptions”); and that Mortgagor, at its expense, will forever warrant and defend such title to
the Mortgaged Property and the lien and security interest of this Mortgage and the other loan
documents against all claims and demands of all persons and will maintain and preserve such lien
and security interest as long as all or any portion of the indebtedness evidenced by the Note, or
any other indebtedness secured hereby is outstanding, subject only to the Permitted Exceptions.
3. INSURANCE. Mortgagor shall obtain and at all times keep in force the following policies of
insurance:
3.1 Insurance against loss or damage to the Improvements and Fixtures by fire, lightning and
such perils as are at this time comprehended within the term “all risk,” and against any other
risks or hazards which Mortgagee shall require, in an amount acceptable to Mortgagee and which
shall be sufficient that Mortgagor will not be deemed a co-insurer. Such policies of insurance
shall contain the “replacement cost” endorsement.
3.2 Comprehensive public liability insurance for injuries to person, including death, and
property damage insurance including loss of use thereof, in an amount acceptable to Mortgagee.
3.3 During the course of any construction or repair of the Improvements and Fixtures on the
Land, builder’s completed value risk insurance against “all risks of physical loss,” including
collapse, in an amount reasonably satisfactory to Mortgagee.
3.4 Such other insurance in such form and in such amounts as may from time to time be
reasonably requested by Mortgagee. All insurance policies and renewals thereof shall be issued by
companies approved by Mortgagee as to financial standing according to such standards as may be
adopted from time to time by Mortgagee, for terms and in form and content reasonably acceptable to
Mortgagee, and shall include a standard mortgage clause in favor of and in form and content
acceptable to Mortgagee, and shall not be cancelable without at least 30 days prior written notice
to Mortgagee. Mortgagor will promptly furnish to Mortgagee the original policies of such insurance
or certificates thereof in a form reasonably satisfactory to Mortgagee showing that such policies
are in force and the premiums fully paid. Original policies or certificates of insurance replacing
expiring policies shall be furnished to Mortgagee at least 30 days before the date of each such
expiration. The delivery of the original insurance policies or certificates shall constitute an
assignment as additional security of all unearned premiums.
4. DAMAGE AND DESTRUCTION. In the event of loss, damage or destruction of all or
substantially all of the Mortgaged Property, Mortgagor will give immediate written notice to the
insurance carrier and to Mortgagee. Mortgagor hereby authorizes and
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empowers Mortgagee as
attorney-in-fact for Mortgagor to make proof of loss, to adjust and compromise any claim under
insurance policies, to appear in and prosecute any action arising from such insurance policies, to
collect and receive insurance proceeds, and to deduct therefrom Mortgagee’s expenses incurred in
the collection of such proceeds; provided however, that nothing contained herein shall require
Mortgagee to incur any expense or take any action hereunder. Mortgagor authorizes Mortgagee to
hold the balance of such proceeds and Mortgagee may, at its option, apply the proceeds held by it
to the payment of the sums secured by this Mortgage, whether or not then due, in such order and in
such amounts as Mortgagee may elect. If the insurance proceeds are applied to the payment of the
sums secured by this Mortgage, any such application of proceeds to principal shall not extend or
postpone the due dates of the monthly installments provided for in the Note or change the amounts
of such installments. If the Mortgaged Property is sold pursuant to this Mortgage or if Mortgagee
acquires title to the Mortgaged Property in lieu of foreclosure, Mortgagee shall have all of the
right, title and interest of Mortgagor in and to unearned insurance premiums allocable to the
Mortgaged Property and in and to the proceeds resulting from any damage to the Mortgaged Property
prior to such sale or acquisition.
5. INDEMNIFICATION. Mortgagor will protect, save harmless and indemnify Mortgagee from
and against any and all claims, liabilities, costs and expenses, of whatever nature, which may
arise or result, directly or indirectly, by reason of the use, occupation or operation of the
Mortgaged Property or any part thereof.
6. ENVIRONMENTAL.
(a) Mortgagor shall at all times during the term of this Mortgage comply with all applicable
federal, state, and local laws, regulations, administrative rulings, orders, ordinances, and the
like, pertaining to the protection of the environment, including but not limited to, those
regulating the handling and disposal of waste materials and further that during the term of this
Mortgage neither Mortgagor nor any agent or party acting at the direction or with the consent of
Mortgagor shall treat, store, or dispose of any “hazardous substance,” as defined in Section
101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980
(“CERCLA”), or petroleum (including crude oil or any fraction thereof) on the Mortgaged Property or
any other property owned by Mortgagor.
(b) Mortgagor shall fully and promptly pay, perform, discharge, defend, indemnify and hold
harmless Mortgagee from any and all claims, orders, demands, causes of action, proceedings,
judgments, or suits and all liabilities, losses, costs or expenses (including without limitation
technical consultant fees, court costs, expenses paid to third parties and reasonable legal fees)
and damages arising out of, or as a result of (i) any “release,” as defined in Section 101(22) of
CERCLA, of any “hazardous substance,” as defined in Section 101(14) of CERCLA, or petroleum
(including crude oil or any fraction thereof) discharged, deposited, dumped, spilled, leaked or
placed into or on the Mortgaged Property at any time either prior to or after the date Mortgagor
acquired title to the Mortgaged Property; (ii) any contamination of the Mortgaged Property’s soil
or groundwater or
damage to the environment and natural resources of the Mortgaged Property existing prior to
the time Mortgagor acquired title to the Mortgaged Property or the result of actions occurring
after Mortgagor acquired title to the Mortgaged Property, whether arising under CERCLA
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or other
existing statutes and regulations, or common law; and (iii) any toxic, explosive or otherwise
dangerous materials which have been buried beneath or concealed within the Mortgaged Property
either prior to or after Mortgagor acquired title to the Mortgaged Property.
(c) Mortgagor hereby irrevocably grants to Mortgagee the right, while this Mortgage is in
effect and not released, to enter upon the Mortgaged Property for the purpose of inspecting the
same and taking samples therefrom for testing, including but not limited to soil samples (both
surface and subsurface) and samples of materials contained in any of the Improvements. Mortgagor
shall pay for the reasonable cost of any reasonably necessary inspections and tests performed
pursuant to this Paragraph 6(c).
7. LIENS AND TAXES. Mortgagor will not suffer or permit any mechanics’, laborers’ or
materialmen’s liens, or claims of lien, to be filed or otherwise asserted against or to remain on
the Mortgaged Property for more than 30 days, and shall cause the same to be released and
discharged, or transferred to bond as permitted by law prior to the expiration of the 30 day
period. Mortgagor will pay, or cause to be paid, before they become delinquent, all taxes,
assessments, water and sewer rents, license fees, dues, charges and levies of any kind, general or
specific, imposed upon the Mortgaged Property or upon any part thereof or upon any interests of
Mortgagor or Mortgagee therein and will furnish Mortgagee upon request evidence satisfactory to
Mortgagee of the timely payment of same.
8. CHANGE IN LAW. In the event of the passage of any state, federal, municipal or other
governmental law, order, rule or regulation, subsequent to the date hereof, in any manner changing
or modifying the laws now in force governing the taxation of mortgages or debts secured by
mortgages, or the manner of collecting taxes so as to adversely affect Mortgagee, then Mortgagee
shall notify Mortgagor and Mortgagor shall promptly pay the amount of such tax to Mortgagee.
9. UTILITIES. Mortgagor shall pay when due all charges for utility services furnished to or
consumed on the Mortgaged Property or which may become a charge or lien against all or part of the
Mortgaged Property, and shall pay all other assessments or charges of a similar nature affecting
the Mortgaged Property whether or not such assessments or charges are liens thereon.
10. INSPECTION. Mortgagor agrees that Mortgagee shall have the right, after reasonable notice
to Mortgagor, to enter upon the Mortgaged Property from time to time during normal business hours
to inspect the condition of the Mortgaged Property.
11. FINANCIAL STATEMENTS. For so long as this Mortgage shall remain in effect Mortgagor shall
provide Mortgagee with (i) financial statements of Mortgagor, within 90 days of the end of its
fiscal year, which statements shall be reviewed or audited by an independent certified public
accountant or (ii) unaudited financial statements, if requested in writing by Mortgagee. All
statements delivered pursuant to this Section shall be prepared in accordance with
consistently applied accounting principles.
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12. MAINTENANCE AND REPAIR; ALTERATIONS. Mortgagor will, at all times, preserve and
keep the Mortgaged Property and every part and item thereof in good working order and condition and
will not permit or suffer any waste thereof, and will keep and maintain the grounds, sidewalks,
roads, parking and landscaped areas in good order and repair. Mortgagor will promptly repair,
restore, replace or rebuild, to substantially its former condition, any part of the Mortgaged
Property which may be damaged or destroyed by any casualty or cause whatsoever or which may be
affected by condemnation or alteration of the grade of any street or roadway. Mortgagor will not
permit or allow any demolition, removal or material alteration of the Mortgaged Property, or any
part thereof, without the prior written consent of Mortgagee. Mortgagor will, from time to time,
make all needed and proper repairs, betterments, renewals, replacements and improvements to the
Mortgaged Property, including (but not limited to) whenever any portion or item of the Mortgaged
Property shall be worn out or damaged or destroyed or shall have become obsolete, inefficient or
otherwise unfit for use; excepting, however, any items of a minor nature which Mortgagor
determines, in good faith, are not required for the operation of the Mortgaged Property. Any such
property which shall be replaced shall be replaced with other property of at least equal utility,
value and efficiency to that of the replaced property and shall be free from any security interest
or other lien or encumbrance and from any reservation of title, and by such replacement Mortgagor
shall be deemed to have subjected such property to the lien of this Mortgage.
13. COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS. Mortgagor will, at all times, comply with, or
cause to be complied with (a) all laws, ordinances and requirements of governmental authorities,
(b) all requirements of insurance rating and inspection bureaus, and (c) all restrictive covenants,
easements and other title exceptions relating to the Mortgaged Property or any part thereof.
14. DUE ON SALE OR ENCUMBRANCE. At the option of Mortgagee, the entire amount of the
indebtedness evidenced by the Note will become immediately due and payable:
(a) if Mortgagor shall transfer, or agree to transfer, in any manner, either
voluntarily or involuntarily, by operation of law or otherwise, all or any portion of the
Mortgaged Property, or any interest therein (including any air or development rights)
without, in any such case, the prior written consent of Mortgagee. Mortgagee may grant or
deny such consent in its sole discretion and, if consent should be given, any such transfer
shall be subject to this Mortgage and any other documents which evidence or secure the loan
secured hereby, and any such transferee shall assume all of Mortgagor’s obligations
hereunder and thereunder and agree to be bound by all provisions and perform all obligations
contained herein and therein. Consent to one such transfer shall not be deemed to be a
waiver of the right to require consent to future or successive transfers. As used herein
“transfer” shall include, without limitation, any sale, assignment, lease or conveyance
[except leases for occupancy subordinate to this Mortgage] and to all advances made and to
be made hereunder and, in the event Mortgagor is a partnership, joint venture, trust or
corporation, the sale, conveyance, transfer or other disposition of any interest therein; or
(b) if Mortgagor shall encumber, or agree to encumber, in any manner, either
voluntarily or involuntarily, by operation of law or otherwise, all or any portion of the
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Mortgaged Property, or any interest therein (including any air or development rights) or any
interest in Mortgagor without, in any such case, the prior written consent of Mortgagee.
Mortgagee may grant or deny such consent in its sole discretion and, if consent should be
given, any such encumbrance shall be subject to this Mortgage and any documents which
evidence or secure the loan secured hereby. Consent to one such encumbrance shall not be
deemed to be a waiver of the right to require consent to future or successive encumbrances.
As used herein “encumber” shall include, without limitation, the placing or permitting the
placing of any mortgage, deed of trust, assignment of rents or other security device.
15. EMINENT DOMAIN. Notwithstanding any taking by eminent domain, alteration of the
grade of any street or other injury to or decrease in value of the Mortgaged Property by any public
or quasi-public authority or corporation, Mortgagor shall continue to pay interest on the entire
principal sum secured hereby until any such award or payment shall have been actually received by
Mortgagee and any reduction in the principal sum resulting from the application by Mortgagee of
such award or payment as hereinafter set forth shall be deemed to take effect only on the date of
such receipt. Mortgagor hereby authorizes and empowers Mortgagee as attorney-in-fact for Mortgagor
to make proof of loss, to adjust and compromise any claim under the power of eminent domain, to
appear in and prosecute any action for condemnation awards or proceeds, and to deduct therefrom
Mortgagee’s expenses incurred in the collection of such awards and proceeds; provided, however,
that nothing contained herein shall require Mortgagee to incur any expense or take any action
hereunder. All such awards or proceeds shall, at the option of Mortgagee, be retained and applied
by Mortgagee toward payment of the monies secured by this Mortgage, whether or not then due, in
such order and in such amounts as Mortgagee may elect. If prior to the receipt by Mortgagee of
such award or payment the Mortgaged Property shall have been sold on foreclosure of this Mortgage,
Mortgagee shall have the right to receive the award or payment to the extent of any deficiency
resulting from such sale, together with legal interest thereon, and the reasonable attorneys’ fees,
costs and disbursements incurred by Mortgagee in connection with the collection of such award or
payment. Mortgagor hereby assigns its interests in any such award to Mortgagee.
16. SECURITY AGREEMENT. Mortgagor hereby grants to Mortgagee a security interest in Fixtures,
Awards and Proceeds, Claims, Rents, Deposits and Contract Rights and any portion of the Mortgaged
Property constituting personal property (collectively, the “Collateral”) for the purpose of
securing the obligations secured by this Mortgage. Mortgagee shall have all the rights of a
secured party under the Uniform Commercial Code as in effect from time to time in the State of
Illinois. It is the intention of the parties that Fixtures be treated as fixtures subject to the
real property lien of this Mortgage and that the Collateral be subject to all of the provisions of
this Mortgage. Nothing contained in this Section 16 nor the filing of any UCC-1 financing
statement in a location for filings with respect to personal property nor the execution of any
separate security agreement with respect to all or part of such property shall alter in any fashion
Mortgagee’s rights under this Mortgage or impair the real property lien of this Mortgage with
respect to any such property.
17. FEES AND EXPENSES. If Mortgagee incurs any costs and expenses (including attorneys’ fees)
in connection with any action or proceeding to sustain the lien of this Mortgage or its priority or
to enforce any of Mortgagee’s rights hereunder or to recover any
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indebtedness secured hereby, or
for any title examination or title insurance policy relating to title to the Mortgaged Property
required by Mortgagee, or in curing any default of Mortgagor under any lease, all such sums shall
be paid by Mortgagor on demand, together with interest thereon at the Default Rate from date of
payment by Mortgagee. To the maximum extent permitted by law, such sums shall be secured by this
Mortgage and shall be a lien on the Mortgaged Property prior to any right, title or interest
claimed upon the Mortgaged Property subordinate to the lien of this Mortgage.
18. RIGHT TO CURE. If Mortgagor defaults in any of the covenants or conditions as
provided for in the Note, this Mortgage, or any other loan document, Mortgagee may, at its option,
upon Mortgagor’s failure, without notice to Mortgagor, perform or cause to be performed (by making
advances or otherwise) any such covenant or condition, any amounts paid as a result thereof,
together with interest at the Default Rate from date of payment until paid, shall be immediately
due and payable by Mortgagor to Mortgagee, and until paid shall be added to and become part of the
indebtedness evidenced by the Note, shall be secured by this Mortgage, and shall be a lien on the
Mortgaged Property prior to any right, title or interest claimed in the Mortgaged Property
subordinate to the lien of this Mortgage. Such payments by Mortgagee shall not be deemed to relieve
Mortgagor from, or to be a cure of, any Default hereunder. The exercise by Mortgagee of the right
to make such payments shall be optional with Mortgagee, and Mortgagee shall not in any case be
liable to Mortgagor for a failure to exercise any such right.
19. DEFAULT. Any of the following occurrences or acts will constitute an event of
default (herein “Default”) under this Mortgage: (a) failure of Mortgagor to make any payment of
principal and/or interest within 10 days after the date when due under the Note; (b) failure by
Mortgagor to pay any other monetary amounts due under this Mortgage or any other loan document
within 30 days after the date on which such payment is due and payable; (c) failure of Mortgagor to
fully comply with, observe or perform any of the covenants or provisions of the Note, this Mortgage
or any other loan document or any other Transaction Document (as defined in the Note) and such
failure shall continue unremedied for 15 days after written notice thereof to Mortgagor specifying
the default; (d) the incorrectness or breach of any representation or warranty made by Mortgagor in
the Note, this Mortgage or any other loan document as of the date of this Mortgage and/or while any
of the indebtedness is unpaid; (e) the filing by Mortgagor of a petition in bankruptcy or for
relief under any law relating to the relief of debtors, readjustment of indebtedness,
reorganization, arrangement or extension, or the institution of any proceeding under any such law
by Mortgagor, or the filing or institution of any such petition or proceeding by or against
Mortgagor which is not dismissed within 45 days thereafter; (f) Mortgagor shall make, enter into or
consent to an assignment for the benefit of creditors; (g) if any governmental authority, or any
court at the instance thereof, shall take possession of any substantial part of the property of, or
assume control over, the affairs or operations of, or a receiver or trustee shall be appointed over
all or any substantial part of, or a writ or order of attachment or garnishment shall be issued or
made against any of the property of Mortgagor and any such action is not dismissed or discharged
within 30 days of its commencement; (h) Mortgagor admits in writing the inability to pay its debts
when due; (i) if it shall be illegal for Mortgagor to pay any tax referred to in Section 1 hereof
or Section 7 hereof or if the payment of such tax by Mortgagor would
result in the violation of applicable usury laws; (j) failure by Mortgagor to comply with
Sections 6 or 14 of this Mortgage; (k) final judgment for the payment of money shall be rendered
against Mortgagor and the same shall remain undischarged for a period of
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30 days during which
execution shall not be effectively stayed; (l) if there should occur any change in the use of the
Mortgaged Property without Mortgagee’s prior written consent; (m) if there should occur a default
which is not cured within the applicable grace period, if any, under any other mortgage, deed of
trust or lien of all or part of the Mortgaged Property regardless of whether any such other
mortgage, deed of trust or lien is prior or subordinate to this Mortgage; it being further agreed
by Mortgagor that an Event of Default hereunder shall constitute an Event of Default under any such
other mortgage or deed of trust held by Mortgagee; or (n) there shall occur any event which
constitutes an “event of default” under any instrument, agreement or evidence of indebtedness
relating to any obligation of Mortgagor in respect of indebtedness for borrowed money the effect of
which is to permit the holder or holders of such instrument, agreement or evidence of indebtedness,
or a trustee, agent or other representative on behalf of such holder or holders, to cause the
indebtedness for borrowed money evidenced thereby to become due and payable prior to its stated
maturity.
20. REMEDIES.
20.1 Acceleration. If a Default shall be continuing, Mortgagee may, at its option,
by notice to Mortgagor, declare the entire indebtedness evidenced by the Note, or otherwise secured
hereby, immediately due and payable.
20.2 Mortgagee’s Right to Enter and Take Possession, Operate and Apply Revenues. If
a Default shall be continuing, Mortgagor, upon demand of Mortgagee, shall forthwith surrender to
Mortgagee the actual possession, and if and to the extent permitted by law, Mortgagee itself, or by
such officers or agents as it may appoint, may enter and take possession, of all or any part of the
Mortgaged Property, and may exclude Mortgagor and its agents and employees wholly therefrom, and
may have joint access with Mortgagor to the books, papers and accounts of Mortgagor.
If Mortgagor shall, for any reason, fail to surrender or deliver any such Mortgaged Property
or any part thereof after such demand by Mortgagee, Mortgagee may obtain a judgment or decree
conferring on Mortgagee the right to immediate possession or requiring Mortgagor to deliver
immediate possession of all or part of such Mortgaged Property to Mortgagee, to the entry of which
judgment or decree Mortgagor hereby specifically consents. Mortgagor will pay to Mortgagee, upon
demand, all expenses of obtaining such judgment or decree and reasonable compensation to Mortgagee,
its attorneys and agents; and all such expenses and compensation shall, until paid, be secured by
the lien of this Mortgage.
Upon every such entering upon or taking of possession, Mortgagee may hold, store, use,
operate, manage and control the Mortgaged Property and conduct the business thereof, if any, and
from time to time (a) make all necessary and proper maintenance, repairs, renewals, replacements,
additions, betterments and improvements thereto and thereon and purchase or otherwise acquire
additional fixtures, personalty and other property; (b) insure or keep the Mortgaged Property
insured; (c) lease, manage and operate the Mortgaged Property and exercise all the rights and
powers of Mortgagor to the same extent as Mortgagor could in its own name or otherwise with
respect to the same; and (d) enter into any and all agreements with respect to the exercise by
others of any of the powers herein granted to Mortgagee, all as Mortgagee from time to
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time may
determine to be its best advantage. Mortgagee may collect and receive all Rents, of the same,
including those past due as well as those accruing thereafter, and, after deducting (i) all
expenses of taking, holding, managing and operating the Mortgaged Property (including compensation
for the services of all persons employed for such purposes); (ii) the cost of all such maintenance,
repairs, renewals, replacements, additions, betterments, improvements and purchases and
acquisitions; (iii) the cost of such insurance as Mortgagee may determine to pay; (iv) such taxes,
assessments, and other similar charges as Mortgagee may determine to pay; (v) other proper charges
upon the Mortgaged Property or any part thereof; and (vi) the reasonable compensation, expenses and
disbursements of the attorneys and agents of Mortgagee, shall apply the remainder of the monies and
proceeds so received by Mortgagee to the indebtedness evidenced by the Note or otherwise secured
hereby.
Mortgagee shall have no liability for any loss, damage, injury, cost or expense resulting from
any action or omission by it or its representatives which was taken or omitted in good faith.
20.3 Completion of Construction. If any Improvements are under construction
or not completed, Mortgagee shall have the right, upon the happening of any such Default, to enter
into possession of the Mortgaged Property and perform any and all work and labor necessary to
complete the Improvements substantially in accordance with the plans and specifications therefor
and employ watchmen to protect the Mortgaged Property and the Improvements; all sums expended by
Mortgagee for such purposes shall be deemed to have been paid to Mortgagor and secured by this
Mortgage. For this purpose, Mortgagor hereby constitutes and appoints Mortgagee its true and
lawful attorney-in-fact with full power of substitution to complete the Improvements in the name of
Mortgagor, and hereby empowers said attorney or attorneys as follows: to use any funds of
Mortgagor including any balance which may be held in escrow and any funds which may remain
unadvanced hereunder for the purpose of completing the Improvements in the manner called for by the
plans and specifications; to make such additions and changes and corrections in the plans and
specifications which shall be necessary or desirable to complete the Improvements as Mortgagee
deems necessary in its sole judgment and in substantially the manner contemplated by the plans and
specifications; to employ such contractors, subcontractors, agents, architects and inspectors as
shall be required for said purposes; to enforce or otherwise without limitation deal with any
bonding or insurance company under any policy required hereunder as Mortgagor might do in its own
behalf; to pay, settle or compromise all existing bills and claims which are or may be liens
against the Mortgaged Property, or which may be necessary or desirable for the timely completion of
the Improvements or the removal of liens and encumbrances; to execute all applications and
certificates in the name of Mortgagor which may be required by any construction contract respecting
the Improvements; to do any and every act with respect to the construction of the Improvements
which Mortgagor may do in its own behalf; and to prosecute and defend all actions or proceedings in
connection with the Improvements on the Mortgaged Property and to take such action and require such
performance as Mortgagee deems necessary. This power of attorney shall be deemed to be a power
coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have power to
prosecute and defend all actions or proceedings in connection with the construction of the
Improvements on the Property and to take such action and require such performance as is deemed
necessary.
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Mortgagee shall not be liable for any loss sustained by Mortgagor resulting from Mortgagee’s
failure to enforce the power of attorney granted herein or from any other act or omission of
Mortgagee in managing the Property. Nor shall Mortgagee be obligated to perform or discharge nor
does Mortgagee hereby undertake to perform or discharge any obligation, duty or liability with
respect to the construction or completion of the Improvements and Mortgagor shall indemnify
Mortgagee for, and hold Mortgagee harmless from, any and all liability, loss or damage which may or
might be incurred in the exercise or failure to exercise any of the rights granted to Mortgagee
under this Section or by reason of the assignment to Mortgagee of the construction contract,
architectural agreements, plans and specifications and other Contract Rights with respect to the
Property. Should Mortgagee incur any such liability or in defense of any claims or demands
relating thereto, the amount thereof, including costs, expenses and reasonable attorneys’ fees,
shall be secured hereby and Mortgagor shall reimburse Mortgagee therefor immediately upon demand.
It is further understood that this Section shall not operate to place responsibility upon Mortgagee
for the control, care, management or repair of the Property or for the carrying out the
construction of the Improvements; nor shall it operate to make Mortgagee responsible or liable for
any waste committed on the Property by the contractor or any other parties, or for any dangerous or
defective condition of the Property, or for any negligence in the management, upkeep, repair or
control of the Property resulting in loss or injury or death to any contractor, subcontractor,
licensee, invitee, employee, agent or stranger.
20.4 Receiver. If a Default shall be continuing, Mortgagee, upon application
to a court of competent jurisdiction, shall be entitled without notice and without regard to the
occupancy or value of any security for the indebtedness or the insolvency of any party bound for
its payment to the appointment of a receiver to take possession of and to operate the Mortgaged
Property and to collect and apply Rents thereof. The receiver shall have all of the rights and
powers to the fullest extent permitted by law. Mortgagor shall pay to Mortgagee upon demand all
expenses, including receiver’s fees, costs and agent’s compensation, incurred pursuant to the
provisions of this Paragraph; and all such expenses shall be secured by this Mortgage.
20.5 Mortgagee’s Power of Enforcement. If a Default shall have occurred and be
continuing Mortgagee may, either with or without entry or taking possession as hereinabove provided
or otherwise, proceed by suit or suits at law or in equity or by any other appropriate proceeding
or remedy (a) to enforce payment of the Note or the performance of any term of this Mortgage, (b)
to foreclose this Mortgage and to sell, as an entirety or in separate lots or parcels, the
Mortgaged Property, under the judgment or decree of a court or courts of competent jurisdiction,
and (c) to pursue any other right or remedy available to it, all as the Mortgagee shall deem most
effectual for such purposes. Mortgagee shall take action either by such proceedings or by the
exercise of its powers with respect to entry or taking possession, as Mortgagee may determine.
20.6 Leases. Mortgagee, at Mortgagee’s option, is authorized to foreclose this
Mortgage, subject to the rights of any tenants of the Mortgaged Property, and the failure to make
any such tenants parties defendant to any such foreclosure proceedings and to foreclose their
rights will not be, nor be asserted to be by Mortgagor, a defense to any proceedings instituted by
Mortgagee to collect the sums secured hereby, or any deficiency remaining unpaid after the
foreclosure sale of the Mortgaged Property.
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20.7 Delay or Omission no Waiver. No delay or omission of Mortgagee or of any holder
of the Note to exercise any right, power or remedy accruing upon any Default shall exhaust or
impair any such right, power or remedy or shall be construed to be a waiver of any such default, or
acquiescence therein; and every right, power and remedy given by this Mortgage to Mortgagee may be
exercised from time to time and as often as may be deemed expedient by Mortgagee.
20.8 No Waiver of One Default to Affect Another. No waiver of any Default shall be
effective unless made in writing by Mortgagee. No waiver of any Default hereunder shall extend to
or shall affect any subsequent or any other then existing Default or shall impair any rights,
powers or remedies consequent thereon.
20.9 Remedies Cumulative. No right, power or remedy conferred upon or
reserved to Mortgagee by this Mortgage is intended to be exclusive of any other right, power or
remedy, but each and every such right, power and remedy shall be cumulative and concurrent and
shall be in addition to any other right, power and remedy given hereunder or now or hereafter
existing at law or in equity or by statute.
20.10 Subrogation. Mortgagee hereby is subrogated to the claims and liens of all
parties whose claims or liens are discharged or paid with the proceeds of the indebtedness secured
by this Mortgage.
21. FURTHER ASSURANCES. Mortgagor will, at its own expense, within 15 days after request by
Mortgagee, do, execute, acknowledge and deliver all further acts, deeds, conveyances, transfers,
security interests, security agreements, financing statements, renewals, certificates, affidavits,
continuation statements and other documents and assurances necessary or proper to effectuate,
complete, or perfect, or to continue and preserve, the obligations of Mortgagor under the Note and
other loan documents and the lien and security interest provided for by this Mortgage in the
Mortgaged Property or any part thereof.
Upon any failure by Mortgagor to do so, Mortgagee may make, execute, record, file, re-record
and/or re-file any and all such mortgages, instruments, certificates and documents for and in the
name of Mortgagor, and Mortgagor hereby irrevocably appoints Mortgagee the agent and
attorney-in-fact of Mortgagor to do so.
22. CERTIFICATES. Mortgagor, upon request of Mortgagee, shall certify, by a writing duly
acknowledged to Mortgagee or to any proposed assignee of the Note, this Mortgage or any other loan
documents, the amount of the principal sum and interest and other indebtedness then owing on the
Note, this Mortgage and other loan documents, and whether any offsets or defenses exist against the
indebtedness secured hereby.
23. LEASES AFFECTING MORTGAGED PROPERTY. Mortgagor will comply with and observe its
obligations as landlord under all Leases affecting the Mortgaged Property or any part thereof so
long as the lessee under any of the Leases is not in default. Mortgagor will furnish Mortgagee with
a form of lease, which shall not be substantially modified without the prior
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written consent of
Mortgagee. All Leases shall be inferior and subordinate in all respects to the lien of this
Mortgage, and shall provide that lessees under such Leases, at Mortgagee’s option, shall
attorn to Mortgagee, its successors and assigns, in the event that this Mortgage is foreclosed and
the terms of each lease shall so provide.
24. NOTICES. Any provision in this Mortgage requiring or permitting notice or demand
or request shall be deemed satisfied by written notice personally served on Mortgagor or Mortgagee,
as the case may be, or as of the fifth day after being mailed by United States Postal Service,
registered or certified mail, return receipt requested, postage prepaid, addressed to the parties
at their address first listed above. Either party may, by notice to the other in the above manner,
specify a different address for notice purposes.
25. EXTENSIONS, RELEASES, MODIFICATIONS, RENEWALS, ETC. Without affecting the liability of
Mortgagor or any other person (except any person expressly released in writing) for payment of any
indebtedness secured hereby or for performance of any obligation contained herein or secured
hereby, and without affecting the rights of Mortgagee with respect to any security not expressly
released in writing, Mortgagee may, at any time and from time to time, either before or after the
maturity of the Note, and without notice or consent:
(a) Release any person liable for payment of all or any part of the indebtedness or for
performance of any obligation.
(b) Make any agreement extending the time or otherwise altering the terms of payment of all
or any part of the indebtedness, or modifying or waiving any obligation, or subordinating,
modifying or otherwise dealing with the lien or charge hereof.
(c) Exercise or refrain from exercising or waive any right Mortgagee may have.
(d) Accept additional security of any kind.
(e) Release, either partially or wholly, or otherwise deal with any property, real or
personal, securing the indebtedness, including all or any part of the property mortgaged hereby.
26. WAIVER OF RIGHTS. Mortgagor will not at any time insist upon, or plead, or in any
manner whatever claim or take any benefit or advantage of any stay or extension or moratorium law,
any exemption from execution or sale of the Mortgaged Property or any part thereof, wherever
enacted, now or at any time hereafter in force, which may affect the covenants and terms of
performance of this Mortgage, nor claim, take or insist upon any benefit or advantage of any law
now or hereafter in force providing for the valuation or appraisal of the Mortgaged Property, or
any part thereof, prior to any sale or sales thereof which may be made pursuant to any provision
herein, or pursuant to the decree, judgment or order of any court of competent jurisdiction; nor,
after any such sale or sales, claim or exercise any right under any statute heretofore or hereafter
enacted to redeem the property so sold or any part thereof and Mortgagor hereby expressly waives
all benefit or advantage of any such law or laws, and covenants not to hinder, delay or impede the
execution of any power herein granted or delegated to Mortgagee, but to suffer and permit the
execution of every
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power as though no such law or laws had been made or enacted. Mortgagor, for
itself and all who
may claim under it, waives, to the extent that it lawfully may, all right to have the
Mortgaged Property marshaled upon any foreclosure hereof.
27. TIME IS OF THE ESSENCE. Time is of the essence of this Mortgage.
28. ATTORNEYS’ FEES AND EXPENSES. Wherever provision is made herein for payment for
reasonable attorneys’ fees or expenses incurred by Mortgagee, such provision shall include, but not
be limited to, reasonable attorneys’ fees or expenses incurred in any and all judicial, bankruptcy,
reorganization, administrative, or other proceedings, including appellate proceedings, whether such
proceedings arise before or after entry of a final judgment.
29. ILLINOIS CONTRACT. This Mortgage shall be construed, interpreted, enforced and governed
by and in accordance with laws of the State of Illinois.
30. STATUTORY POWERS. Mortgagee is hereby authorized and empowered to do all things provided
to be done by a mortgagee under the laws of Illinois, and any present or future amendments or
supplements thereto, for the protection of Mortgagee’s interest in the Mortgaged Property.
31. CAPTIONS. The captions or headings of the provisions hereof are for convenience of
reference only and shall not define or limit the terms hereof. Whenever the singular or plural
member, masculine or feminine or neuter gender is used herein, it shall equally include the other.
32. AFTER-ACQUIRED PROPERTY. All property of every kind acquired by Mortgagor after
the date hereof which is required for the complete use and enjoyment of the Mortgaged Property and
which, by the terms hereof, is required to be subjected to the lien of this Mortgage, shall
immediately upon the acquisition thereof by Mortgagor, and without any further mortgage,
conveyance, assignment or transfer, become subject to the lien of this Mortgage. Nevertheless,
Mortgagor will do, execute, acknowledge and deliver each further act, conveyance, mortgage and
assurance as Mortgagee shall reasonably require for accomplishing such purposes.
33. SUPPLEMENTAL MORTGAGES. Mortgagor may from time to time grant mortgages on property other
than the property described herein as Mortgaged Property and such mortgages shall be supplemental
to this Mortgage and may encumber additional property to secure the Note and may subject such
additional property to the requirements, terms and conditions hereof.
34. BINDING EFFECT. The covenants herein contained shall bind, and the benefits shall inure
to, the respective successors and assigns of the parties hereto, and the term Mortgagee shall
include any payee of the Note or any transferee thereof whether by operation of law or otherwise.
35. SEVERABILITY. In the event that any provision or clause of this Mortgage, the Note or any
other loan document or any other Transaction Document conflicts with applicable
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law, such conflict
shall not affect other provisions of this Mortgage, the Note and the other loan
documents and the other Transaction Documents which can be given effect without the
conflicting provision, and to this end the provisions of this Mortgage, the Note and the other loan
documents and the other Transaction Documents are declared to be severable.
36. WAIVER OF JURY TRIAL. MORTGAGOR WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING RELATING TO THIS MORTGAGE, THE NOTE IT SECURES, THE LOAN DOCUMENTS OR ANY TRANSACTION
CONTEMPLATED HEREIN.
IN WITNESS WHEREOF, this Mortgage has been duly executed by Mortgagor as of the day and year
first above written.
| ONE EARTH ENERGY, LLC |
||||
| By: | /s/Xxxxx Xxxxx | |||
| Xxxxx Xxxxx, President | ||||
STATE OF ILLINOIS
|
) | |||||
| ) | SS: | |||||
COUNTY OF FORD
|
) |
The foregoing instrument was acknowledged before me this 18th day of June ,
2007 by Xxxxx Xxxxx, President of One Earth Energy, LLC, an Illinois limited liability company, on
behalf of the company.
| /s/Xxx X. Xxxxx | ||||
| Notary Public | ||||
This Instrument Prepared By:
|
[Notary Seal] | |
XXXXXXXXX, XXXXXX & XXXXX P.L.L.
|
“OFFICIAL SEAL” | |
0000 Xxxxxxxxxx Xxxxx, X.X.
|
XXX X. XXXXX | |
Xxxxxx, Xxxx 00000
|
NOTARY PUBLIC –STATE OF ILLINOIS | |
| MY COMMISSION EXPIRES: 04/05/10 |
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Exhibit A
Land
All that part of the South 1204.28 feet of the South Half of Section 3, Township 23 North, Range 7
East of the Third Principal Meridian, Ford County, Illinois, lying east of the Northerly Extension
of the East Line a tract of land conveyed to Ameren Energy Generating Company by Special Warranty
Deed recorded September 11, 2000, as Document No. 216254 in the Ford County Recorder’s Office, and
lying west of the Northerly Extension of the East line of the West 250 Feet of the Northeast
Quarter of Section 10, Township 23 North, Range 7 East of the Third Principal Meridian, Xxxxxx
City, County of Ford, State of Illinois.
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Exhibit B
Permitted Exceptions
| 1. | Taxes for the year 2005, payable in 2006, are in the sum of $2,719.00 and are shown paid. Permanent | |
| Tax Index No. 09-11-03-300-001. (SW1/4 3-23-7) | ||
| Taxes for the year 2005, payable in 2006 are in the sum of $1,366.30 and are shown paid. Permanent | ||
| Tax Index No. 09-11-03-400-001. (W1/2 SE 3-23-7) | ||
| 2. | Said premises are subject to taxes for the years 2006 and 2007. | |
| NOTE: Not yet due and payable. | ||
| 3. | Said premises lie within the boundaries of the Ford County Soil Conservation District. | |
| NOTE: There are no assessments due and/or payable in said Soil Conservation District. | ||
| 4. | Pursuant to the statutes of the State of Illinois concerning the recording by Surveyors of Monument Records, we find Monument Records recorded in the Recorder’s Office of Ford County, Illinois, which may be of benefit for future surveys of said premises, as follows: Documents Nos. 166547 and 216260. | |
| 5. | Said premises lie within the boundaries of the Xxxxx District Library and are subject to assessment thereby. | |
| NOTE: There are no assessments due and/or payable in said District Library. | ||
| 6. | Subject to the rights of One Earth Energy, L.L.C. to purchase said premises under the terms of an unrecorded Contract. | |
| 7. | Upon the mortgage of the land by One Earth Energy, L.L.C., then we should be furnished: |
a) Certification from the Illinois Secretary of State that the L.L.C. has properly filed its
Articles of Organization;
b) A copy of the Articles of Organization, together with any amendments thereto;
c) A copy of the Operating Agreement, if any, together with any amendments thereto;
d) A list of incumbent managers or of incumbent members if managers have not been appointed;
e) Certification that no event of dissolution has occurred;
| 8. | Rights or claims of parties in possession not shown of record. |
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| 9. | Questions of Survey; easements or claims of easements not shown of record. |
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