[Space Above This Line For Recording Data] _____________________________ CONSTRUCTION LOAN MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FINANCING STATEMENT
Exhibit 10.5
____________________________ [Space Above This Line For Recording Data] _____________________________
CONSTRUCTION LOAN MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS
AND FIXTURE FINANCING STATEMENT
ASSIGNMENT OF LEASES AND RENTS
AND FIXTURE FINANCING STATEMENT
THIS CONSTRUCTION LOAN MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND
FIXTURE FINANCING STATEMENT (“Mortgage”) is made as of September 20th, 2007, by ONE EARTH ENERGY,
LLC, an Illinois limited liability company (“Mortgagor”), whose address is 0000 Xxxx
0xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000-0000, in favor of FIRST NATIONAL BANK OF OMAHA,
a National Banking Association, in its capacity as the administrative agent and collateral agent
under the Loan Agreement (as herein defined) (“Mortgagee”), whose address is 0000 Xxxxx Xxxxxx,
Xxxx 0000, Xxxxx, Xxxxxxxx 00000-0000.
A. Mortgagor and Mortgagee have entered into that certain Construction Loan Agreement dated of
even date herewith (as the same may be modified, amended or restated from time to time, the “Loan
Agreement”), pursuant to which Mortgagee has extended to Mortgagor (i) a Construction Loan in the
maximum principal amount of $100,000,000.00 evidenced by a Construction Note of even date herewith,
(ii) a revolving line of credit in the maximum principal amount of $10,000,000.00 evidenced by a
Revolving Note of even date herewith, (iii) a promissory note of even date herewith supporting the
issuance, for the account of Mortgagor, of letters of credit up to a maximum amount outstanding of
$1,000,000.00 and (iv) Swap Contracts with an additional exposure to Mortgagee, with the
Construction Note available to be permanently financed by the Fixed Rate Note, Variable Rate Note
and Long Term Revolving Note (as such terms are defined in the Loan Agreement) all as more fully
described in the Loan Agreement. The foregoing financial accommodations and credit facilities
shall be collectively referred to in this Mortgage as the “Loans”. The total principal amount
secured by this Mortgage is $119,750,000.00, or so much thereof as may have been advanced and/or
readvanced now or in
the future at variable and/or fixed rates of interest to or for the benefit of the Mortgagee and
remains unpaid from time to time, plus the amount of any protective advances made by Mortgagee as
provided for in this Mortgage or any other Loan Document.
B. The Loans are payable and to be performed in accordance with the terms of the notes
evidencing the same and the Loan Agreement, with the entire unpaid balance of the Loans to mature
and be due and payable in full not later than July 31, 2014 (the “Maturity Date”), unless extended
by Mortgagor and Mortgagee.
C. Mortgagor has agreed to mortgage the Mortgaged Property (as herein defined) to Mortgagee to
secure the Loans and the Obligations (as defined below).
D. The obligations secured by this Mortgage (the “Obligations”) are as follows:
(i) the Loans, including without limitation, future advances made by Mortgagee to
Mortgagor, Mortgagor’s obligations in respect of the due and punctual payment of principal
and interest on the Loans when and as due, whether by acceleration or otherwise and all
fees, expenses, indemnities, reimbursements, guaranties and other obligations of Mortgagor
under the Loans, Loan Agreement and the other Loan Documents, in all cases whether now
existing or hereafter arising or incurred;
(ii) all other amounts payable by Mortgagor under the Loans, Loan Agreement or other
Loan Documents as the same now exist or may hereafter be amended; and
(iii) all obligations of Mortgagor under this Mortgage, including, but not limited to,
any protective advances advanced by Mortgagee under this Mortgage to protect and preserve
the Mortgaged Property and the lien and security interest created by this Mortgage.
The Obligations include, and this Mortgage secures, future obligations and advances under the
Loans and protective advances made under this Mortgage or the Loan Documents and future
modifications, extensions and renewals of the Loans and Obligations secured by this Mortgage. The
total amount of obligations and advances secured by this Mortgage may decrease or increase from
time to time, but at no time shall the total principal amount of obligations and advances secured
hereby, not including sums expended or incurred for the reasonable protection of the security
interest hereby created in the Mortgaged Property, exceed the sum of $119,750,000.00.
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A attached hereto and all mineral rights, hereditaments, easements and appurtenances
thereto (collectively the “Land”), along with all the following, all of which together with the
Land is called the “Mortgaged Property” in this Mortgage:
(a) All and singular the tenements, hereditaments, servitudes, easements,
appurtenances, passages, rights of ingress and egress, licenses, permits, development
rights, rights of use or occupancy, waters, water courses, all of Mortgagor’s rights and
interests under federal, state and local laws to all water and rights, permits or licenses
to use or discharge water, riparian rights, mineral rights, sewer rights, rights in trade
names, licenses, permits and contracts, and all other rights, liberties and privileges of
any kind or character in any way now or hereafter appertaining, relating or applicable to
the Land or any Improvements thereon, including but not limited to, homestead and any other
claim at law or in equity as well as any after-acquired title, franchise or license and the
reversion and reversions and remainder and remainders thereof;
(b) The land lying within any street, alley, avenue, roadway or right-of-way open or
proposed or hereafter vacated in front of or adjoining the Land; and all right, title and
interest, if any, of Mortgagor in and to any strips and gores adjoining or used in
connection with the Land;
(c) All agreements, ground leases, grants of easements or rights-of-way, permits,
declarations of easements, conditions or restrictions, disposition and development
agreements, planned unit development agreements, plats, subdivision plans, permits and
approvals, and all other documents affecting the Land and/or Improvements;
(d) All right, title and interest of Mortgagor in any and all buildings and
improvements of every kind and description now or hereafter erected or placed on the said
Land and all materials intended for construction, reconstruction, alteration and repairs of
such buildings and improvements now or hereafter erected thereon, all of which materials
shall be deemed to be included within the Mortgaged Property immediately upon the delivery
thereof to the Mortgaged Property or upon any earlier acquisition thereof by Mortgagor, and
all fixtures now or hereafter owned by Mortgagor and attached to or contained in and used or
acquired for use in connection with the Mortgaged Property including, but not limited to,
all heating, lighting, refrigerating, ventilating, air-conditioning, air-cooling, fire
extinguishing, plumbing, cleaning, telephone, communications and power equipment, systems
and apparatus; and all elevators, switchboards, motors, pumps, screens, awnings, floor
coverings, cabinets, partitions, conduits, ducts and compressors; and all cranes and
craneways, oil storage, sprinkler/fire protection and water service equipment; and also
including any of such property stored on the Land or Improvements or in warehouses and
intended to be used in connection with or incorporated into the Land or Improvements or for
the pursuit of any other activity in which Mortgagor may be engaged on the Land or
Improvements, and including without limitation all tools, cabinets, awnings, window shades,
venetian blinds, drapes and drapery rods and brackets, screens, carpeting and other window
and floor coverings, decorative fixtures, plants, cleaning apparatus, and cleaning
equipment, refrigeration equipment, generators, cables, telecommunication cables, antennas
and
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systems, computers, software, books, supplies, kitchen equipment, appliances, tractors, lawn
mowers, ground sweepers and tools, together with all substitutions, accessions, repairs,
additions and replacements to any of the foregoing and all other items of furniture,
furnishings, equipment and personal property owned by Mortgagor used or useful in the
operation of the Mortgaged Property, including, but not limited to, such equipment and
personal property used in the production of ethanol and the treatment and storage thereof
and in any byproducts; and all renewals or replacements of all of the aforesaid property
owned by Mortgagor or articles in substitution therefor, whether or not the same are or
shall be attached to said buildings or improvements in any manner; it being mutually agreed,
intended and declared that all the aforesaid property owned by Mortgagor and placed by it on
the Land or Improvements or used or acquired for use in connection with the operation or
maintenance of the Mortgaged Property shall, so far as permitted by law, be deemed to form a
part and parcel of the Land and for the purpose of this Mortgage to be Land and covered by
this Mortgage, and as to any of the property aforesaid which does not form a part and parcel
of the Land or does not constitute a “fixture” (as such term is defined in the UCC, defined
below) this Mortgage is hereby deemed to be, as well, a security agreement under the UCC for
the purpose of creating hereby a security interest in such property which Mortgagor hereby
grants to Mortgagee as secured party, and all inventory, office supplies, machinery,
apparatus, systems and equipment used or useful in the production of ethanol at the
Mortgaged Property, all as now owned or hereafter acquired by Mortgagor;
(e) All leases of the Land or Improvements or any part thereof, whether now existing or
hereafter entered into (the “Leases”), and all right, title and interest of Mortgagor
thereunder, including rents, cash and security deposits under any such Leases and all
guaranties of any Tenant’s obligations under any such Leases or other similar supports of a
Tenant’s obligations under a Lease;
(f) Any and all awards, payments or insurance proceeds, including interest and unearned
premiums thereon, and the right to receive the same, which may be paid or payable with
respect to the Land or Improvements or other properties described above as a result of: (1)
the exercise of the right of eminent domain or action in lieu thereof; or (2) the alteration
of the grade of any street; or (3) any fire, casualty, accident, damage or other injury to
or decrease in the value of the Land or Improvements or other properties described above, to
the extent of all amounts which may be secured by this Mortgage at the date of receipt of
any such award or payment by Mortgagor or Mortgagee, and of the reasonable counsel fees,
costs and disbursements incurred by Mortgagor or Mortgagee in connection with the collection
of such award, payment or proceeds. Mortgagor agrees to execute and deliver, from time to
time, such further instruments as may be requested by Mortgagee to confirm such assignment
to Mortgagee of any such award, payment or proceeds;
(g) All licenses, permits (including, but not limited to, building permits),
authorizations, certificates, variances, consents, approvals and other permits or licenses
now or hereafter acquired pertaining to the Land or any Improvements thereon or which relate
to the construction of the Improvements and/or the use, occupancy, development,
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leasing, operation or servicing of the Land, including, but not limited to air and water
discharge permits, environmental permits and licenses required for the production, storage
and/or transport of ethanol and its byproducts, above ground storage tank licenses and
permits, and all estate, right, title and interest of Mortgagor in, to, under or derived
from all present or future development, construction, operation or use of the Land or any
improvements thereon;
(h) All intangible personal property relating to the Land and/or Improvements, business
records, trade names, trademarks, service marks, logos, claims for refunds or rebates of
taxes, tax abatements, tax credits, money, deposit accounts, accounts and general and
payment intangibles;
(i) Any and all water and water rights, minerals, oil, gas, or any rights thereto;
(j) Together with all plans, drawings and specifications relating to the Mortgaged
Property and the construction of the Improvements, all permits, consents, approvals,
licenses, authorizations and other rights granted by, given by or obtained from any
governmental entity with respect to the Mortgaged Property; and all other interests of every
kind and character that Mortgagor now has or at any time hereafter acquires in and to the
Mortgaged Property;
(k) All studies, tests, investigations, and reports of any kind relating to the soils
or conditions of the soils of the Land and the suitability of the soils for the construction
of the Improvements, all mechanical or structural studies, grading plans, drainage studies,
and plans and other similar studies, plans, drawings, or reports of any nature relating to
the construction of the Improvements;
(l) All management contracts, service contracts, operating agreements, variances and
permits relating to the Land and/or Improvements;
(m) All after-acquired title to or remainder or reversion of any of the foregoing, all
and any proceeds of any of the foregoing, all and any additions, accessions and extensions
to, improvements of and substitutions and replacements of any of the foregoing and all
additional lands, estates, interests, rights, or other property acquired by Mortgagor after
the date of this Mortgage, all without need for any additional mortgage, assignment, pledge,
or conveyance to Mortgagee but Mortgagor will execute and deliver to Mortgagee upon
Mortgagee’s request any documents or instruments to further effect or evidence the
foregoing; and
(n) Together with the right in the case of foreclosure hereunder of the encumbered
property for Mortgagee to take and use the name by which the buildings and all other
improvements situated on the Land are commonly known and the right to manage and operate the
said buildings under any such name and variants thereof;
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Subject only to the Permitted Encumbrances (as herein defined) and to secure payment of the
Obligations.
The parties intend the definition of Mortgaged Property to be broadly construed and in the
case of doubt as to whether a particular item is to be included in the definition of Mortgaged
Property, the doubt shall be resolved in favor of inclusion.
TO HAVE AND TO HOLD the same, and all estate therein, together with all the rights, privileges
and appurtenances thereunto belonging, to the use and benefit of Mortgagee, its successors and
assigns, forever.
PROVIDED NEVERTHELESS, should the Obligations be paid and performed, then these presents will
be of no further force and effect, and this Mortgage shall be satisfied by Mortgagee, at the
expense of Mortgagor.
This Mortgage also constitutes a security agreement within the meaning of the Uniform
Commercial Code as in effect in the State of Illinois (the “UCC”), with respect to all property
described herein as to which a security interest may be granted and/or perfected pursuant to the
UCC, and is intended to afford Mortgagee, to the fullest extent allowed by law, the rights and
remedies of a secured party under the UCC.
MORTGAGOR FURTHER agrees as follows:
ARTICLE 1.
AGREEMENTS
AGREEMENTS
Section 1.1 Performance of Obligations; Incorporation by Reference. Mortgagor shall
pay and perform the Obligations when due. Time is of the essence hereof. All of the covenants,
obligations, agreements, warranties and representations of Mortgagor contained in this Agreement,
the Loan Agreement and the other Loan Documents and all of the terms and provisions thereof, are
hereby incorporated herein and made a part hereof by reference as if fully set forth herein.
Section 1.2 Further Assurances. If Mortgagee requests, Mortgagor shall sign and
deliver and cause to be recorded as Mortgagee shall direct any further mortgages, amendments of or
supplements to this Mortgage, instruments of further assurance, certificates and other documents
with respect to the Mortgaged Property as Mortgagee reasonably may consider necessary or desirable,
and shall do such acts reasonably required by Mortgagee, in order to attach, perfect, continue and
preserve the Obligations and Mortgagee’s rights, title, estate, liens and interests under the Loan
Documents. Mortgagor further agrees to pay to Mortgagee, upon demand, all costs and expenses
incurred by Mortgagee in connection with the preparation, execution, recording, filing and refiling
of any such documents, including reasonable attorneys’ fees.
Section 1.3 Sale, Transfer, Encumbrance. If Mortgagor sells, conveys, transfers or
otherwise disposes of, or encumbers, any part of its interest (legal or beneficial) in the
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Mortgaged Property, whether directly or indirectly, voluntarily, involuntarily or by operation
of law (except for Permitted Encumbrances) except as permitted by the Loan Agreement, without the
prior written consent of Mortgagee, Mortgagee shall have the option to declare the Obligations
immediately due and payable immediately upon notice. Included within the foregoing actions
requiring prior written consent of Mortgagee are: (a) sale of the Mortgaged Property by deed or
contract for deed; (b) mortgaging or granting a lien on the Mortgaged Property; and (c) except for
the issuance of membership interests of Mortgagor in connection with the current registered public
offering of Mortgagor, a change of control in 50% or more of the equity interest or voting power or
control of Mortgagor. Mortgagor shall give notice of any proposed action effecting any of the
foregoing to Mortgagee for Mortgagee’s consent at least thirty (30) days prior to taking such
action. Mortgagor shall pay all reasonable costs and expenses incurred by Mortgagee in evaluating
any such action. Mortgagee may condition its consent upon reasonable modification of the Loan
Documents or payment of reasonable fees. No such action shall relieve Mortgagor from liability for
the Obligations as set forth herein. The consent by Mortgagee to any action shall not constitute a
waiver of the necessity of such consent to any subsequent action.
Section 1.4 Insurance. Mortgagor shall obtain, maintain and keep in full force and
effect and shall furnish to Mortgagee copies of policies of insurance as described in, and meeting
the requirements set forth in, the Loan Agreement. At least ten (10) days prior to the termination
of any such coverage, Mortgagor shall provide Mortgagee with evidence satisfactory to Mortgagee
that such coverage will be renewed or replaced upon termination with insurance that complies with
the provisions of this Section and the Loan Agreement. Mortgagor, at its sole cost and expense,
from time to time when Mortgagee shall so request, will provide Mortgagee with evidence, in a form
acceptable to Mortgagee, of the full insurable replacement cost of the Mortgaged Property. All
property and liability insurance policies maintained by Mortgagor pursuant to this Section and the
Loan Agreement shall (i) include effective waivers by the insurer of all claims for insurance
premiums against Mortgagee, and (ii) provide that any losses shall be payable notwithstanding (a)
any act of negligence by Mortgagor or Mortgagee, (b) any foreclosure or other proceedings or notice
of foreclosure sale relating to the Mortgaged Property, or (c) any release from liability or waiver
of subrogation rights granted by the insured. In addition, all policies of casualty insurance
shall contain standard noncontributory mortgagee loss payable clauses to Mortgagee, and the
comprehensive general liability and other liability policies required in the Loan Agreement,
including environmental or pollution policies if so required, shall name Mortgagee as an additional
insured.
Section 1.5 Taxes, Liens and Claims, Utilities. Mortgagor shall pay and discharge
when due, or cause to be paid and discharged when due, all taxes, assessments and governmental
charges and levies (collectively “Impositions”) imposed upon or against the Mortgaged Property or
the Rents, or upon or against the Obligations, or upon or against the interest of Mortgagee in the
Mortgaged Property or the Obligations, except Impositions measured by the income of Mortgagee.
Mortgagor shall provide evidence of such payment at Mortgagee’s request. Mortgagor shall keep the
Mortgaged Property free and clear of all liens (including, but not limited to, mechanics’ liens),
encumbrances, easements, covenants, conditions, restrictions and reservations (collectively
“Liens”) except those set forth in Exhibit B attached hereto and made a part hereof (the
“Permitted Encumbrances”). Mortgagor shall pay or cause to be paid when due
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all charges or fees for utilities and services supplied to the Mortgaged Property.
Notwithstanding anything to the contrary contained in this Section, Mortgagor shall not be required
to pay or discharge any Imposition or Lien other than a mechanics’ lien so long as Mortgagor shall
in good faith, and after giving notice to Mortgagee, contest the same by appropriate legal
proceedings. If Mortgagor contests any Imposition or Lien against the Mortgaged Property,
Mortgagor shall provide such security to Mortgagee as Mortgagee shall reasonably require against
loss or impairment of Mortgagor’s ownership of or Mortgagee’s lien on the Mortgaged Property and
shall in any event pay such Imposition or Lien before loss or impairment occurs.
Section 1.6 Escrow Payments. If requested by Mortgagee after the occurrence of an
Event of Default, Mortgagor shall deposit with Mortgagee monthly on the first day of each month the
amount reasonably estimated by Mortgagee to be necessary to enable Mortgagee to pay, at least five
(5) days before they become due, all Impositions against the Mortgaged Property and the premiums
upon all insurance required hereby to be maintained with respect to the Mortgaged Property. All
funds so deposited shall secure the Obligations. Any such deposits shall be held by Mortgagee, or
its nominee, in a non-interest bearing account and may be commingled with other funds. Such
deposits shall be used to pay such Impositions and insurance premiums when due. Any excess sums so
deposited shall be retained by Mortgagee and shall be applied to pay said items in the future,
unless the Obligations have been paid and performed in full, in which case all excess sums so paid
shall be refunded to Mortgagor. Upon the occurrence of an Event of Default, Mortgagee may apply
any funds in said account against the Obligations in such order as Mortgagee may determine in
Mortgagee’s sole discretion.
Section 1.7 Maintenance and Repair; Compliance with Laws. Mortgagor shall cause the
Mortgaged Property to be operated, maintained and repaired in safe and good repair, working order
and condition, reasonable wear and tear excepted; shall not commit or permit waste thereof; except
as provided in any Loan Document, shall not remove, demolish or substantially alter the design or
structural character of any Improvements without the prior written consent of Mortgagee; shall
complete or cause to be completed forthwith any Improvements which are now or may hereafter be
under construction upon the Land; shall materially comply or cause material compliance with all
laws, statutes, ordinances and codes, and governmental rules, regulations, requirements and permits
and licenses, applicable to the Mortgaged Property or the manner of using or operating the same,
and with any covenants, conditions, restrictions and reservations affecting the title to the
Mortgaged Property, and with the terms of all insurance policies relating to the Mortgaged
Property; and shall obtain and maintain in full force and effect all consents, permits and licenses
necessary for the use and operation of the Mortgaged Property in Mortgagor’s business. Mortgagor
shall obtain and maintain in full force and effect all certificates, licenses, permits and
approvals that are required by law or necessary for the construction of the Improvements or the
use, occupancy or operation of the Project. Mortgagor shall promptly notify Mortgagee in writing of
the receipt by Mortgagor of any notice relating to the violation or allegation or claim of
violation of any applicable laws, licenses or permits and of the commencement or threatened
commencement of any proceedings or investigations which relate to compliance with applicable laws,
permits or licenses. Subject to the provisions of this Mortgage with respect to insurance proceeds
and condemnation awards, Mortgagor shall promptly repair, restore and rebuild any Improvements now
or hereafter on the Mortgaged
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Property which may become damaged or destroyed, such Improvements to be of at least equal
value and quality and of substantially the same character as prior to such damage or destruction.
Section 1.8 Leases.
(a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease
without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a
complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of
each proposed Lease requiring the consent of Mortgagee and with any information requested by
Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior
or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the
landlord under each Lease; not borrow against, pledge or further assign any rents or other payments
due thereunder; not permit the prepayment of any rents or other payments due for more than one (1)
month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by
its Lease, unless required to do so by the terms thereof and then only if such assignment does not
work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of
business, exercise sound business judgment with respect to such default, but may not discount,
compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or
terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee
becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform,
Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any
Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by
Mortgagee in remedying any such failure, together with interest thereon from the date incurred at
an annual rate equal to nine percent (9%) in excess of the one month LIBOR Rate (as set forth and
defined in the Loan Agreement).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
(i) “Lease”: Any lease, occupancy agreement or other document or agreement, written
or oral, permitting any Person to use or occupy any part of the Mortgaged Property.
(ii) “Person”: Any natural person, corporation, partnership, limited partnership,
limited liability company, joint venture, firm, association, trust, unincorporated organization,
government or governmental agency or political subdivision or any other entity, whether acting in
an individual, fiduciary or other capacity.
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(iii) “Tenant”: Any person or party using or occupying any part of the Mortgaged
Property pursuant to a Lease.
Section 1.9 Indemnity. Mortgagor shall reimburse, indemnify and defend Mortgagee and
its participants and their respective directors, officers, attorneys, agents and employees
(collectively the “Indemnified Parties”) against, and hold the Indemnified Parties harmless from,
all losses, damages, suits, claims, judgments, penalties, fines, liabilities, costs and expenses by
reason of, or on account of, or in connection with the construction, reconstruction or alteration
of the Mortgaged Property during Mortgagor’s ownership thereof, the use and operation of
Mortgagor’s business on the Land, Mortgagor’s failure to operate Mortgagor’s business on the
Mortgaged Property in compliance with all applicable laws and permits and licenses, Mortgagor’s
breach of Mortgagor’s obligations under this Mortgage, the Loan Agreement or any other Loan
Document, or any accident, injury, death or damage to any person or property occurring in, on or
about the Mortgaged Property during Mortgagor’s ownership thereof, or any street, drive, sidewalk,
curb or passageway adjacent thereto, except to the extent that the same results from the willful
misconduct or gross negligence of the person or party seeking indemnification. The indemnity
contained in this Section shall include costs of defense of any such claim asserted against an
Indemnified Party, including reasonable attorneys’ fees. The indemnity contained in this Section
shall survive payment and performance of the Obligations and satisfaction and release of this
Mortgage and any foreclosure thereof or acquisition of title by deed in lieu of foreclosure.
Notwithstanding the foregoing, Mortgagor’s liability hereunder shall terminate at such time as a
private or governmental plaintiff is barred by the applicable statute of limitations from bringing
a claim for the actions giving rise to Mortgagee’s claim for indemnification hereunder.
Section 1.10 Assignment of Leases and Rents.
(a) As additional security for the indebtedness secured by this Mortgage, Mortgagor does
hereby bargain, sell, assign, transfer and set over unto Mortgagee all Leases and all the rents,
fees, issues, profits, revenues, royalties and other income of any kind (“Rents”) which, whether
before or after foreclosure, or during the full statutory period of redemption, if any, shall
accrue and be owing for the use or occupation of the Mortgaged Property or any part thereof. So
long as no Event of Default exists under this Mortgage, Mortgagor shall have a revocable license to
collect, but not more than one (1) month in advance under any Lease, all Rents earned prior to
default. This Mortgage constitutes an absolute, irrevocable, currently effective assignment of
Rents and profits. Mortgagor hereby appoints Mortgagee as Mortgagor’s true and lawful
attorney-in-fact with full power of substitution to demand, collect and receive any and all Rents
which may be or become due and payable by Tenants after the occurrence of any Event of Default,
which appointment is coupled with an interest and is irrevocable. Mortgagee may, at its
discretion, file any claim or take any action to collect and enforce the payment of Rents, either
in Mortgagee’s name or Mortgagor’s name or otherwise. Tenants are hereby expressly authorized and
directed by Mortgagor to pay to Mortgagee all Rents upon Mortgagee’s demand, and such Tenants are
hereby expressly relieved of any and all duty, obligation or liability to Mortgagor in respect of
any Rents so paid to Mortgagee.
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(b) If, at any time after an Event of Default hereunder, in the sole discretion of Mortgagee,
a receivership may be necessary to protect the Mortgaged Property or its Rents, whether before or
after maturity of any Loan and whether before or at the time of or after the institution of suit to
collect such indebtedness, or to enforce this Mortgage, Mortgagee, as a matter of strict right and
regardless of the value of the Mortgaged Property or the amounts due hereunder or secured hereby,
or of the solvency of any party bound for the payment of such indebtedness, shall have the right to
the appointment of a receiver to take charge of, manage, preserve, protect, rent and operate the
Mortgaged Property, to collect the Rents thereof, to make all necessary and needful repairs, and to
pay all Impositions against the Mortgaged Property and all premiums for insurance thereon, and to
do such other acts as may by such court be authorized and directed, and after payment of the
expenses of the receivership and the management of the Mortgaged Property, to apply the net
proceeds of such receivership in reduction of the Obligations and indebtedness secured hereby or in
such other manner as the said court shall direct notwithstanding the fact that the amount owing
thereon may not then be due and payable or the said Obligations and indebtedness is otherwise
adequately secured. Such receivership shall, at the option of Mortgagee, continue until full
payment of all sums hereby secured or until title to the Mortgaged Property shall have passed by
sale under this Mortgage, or until terminated by the court.
(c) The reasonable costs and expenses (including any receiver’s fees and reasonable attorneys’
fees) incurred by Mortgagee pursuant to the powers herein contained shall be reimbursed by
Mortgagor to Mortgagee on demand as promptly as practicable, shall be secured hereby and shall bear
interest from the date incurred at an annual rate equal to nine percent (9%) in excess of the one
month LIBOR Rate (as set forth in the Loan Agreement). Unless otherwise required by the court,
Mortgagee shall not be liable to account to Mortgagor for any action taken pursuant hereto, other
than to account for any Rents, fees, issues, revenues, profits or proceeds actually received by
Mortgagee.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
Mortgagor represents and warrants to Mortgagor and covenants with Mortgagor as follows:
Section 2.1 Ownership, Liens, Compliance with Laws. Except for Permitted Encumbrances
and the Liens permitted by the Loan Agreement, Mortgagor owns the Mortgaged Property free from all
Liens, except the Permitted Encumbrances and has good and marketable fee simple title to the
Mortgaged Property. To the best of Mortgagor’s knowledge, all applicable zoning, environmental,
land use, subdivision, building, fire, safety and health laws, statutes, ordinances, codes, rules,
regulations and requirements affecting the Mortgaged Property permit the current use and occupancy
thereof and Mortgagor’s intended use and occupancy of the Mortgaged Property upon substantial
completion of the Project, and Mortgagor has obtained all consents, permits and licenses required
for such use and intended use. Mortgagor has examined and is familiar with all applicable
covenants, conditions, restrictions and reservations, and with all applicable laws, statutes,
ordinances, codes and governmental rules, regulations and
11
requirements affecting the Mortgaged Property, and to the best of Mortgagor’s knowledge, the
Mortgaged Property complies in all material respects with all of the foregoing.
Section 2.2 Use. The Mortgaged Property is not homestead property, a single or two
family dwelling, nor is it agricultural property or in agricultural use. The construction, use and
occupancy of the Project complies and will comply with all requirements of law and any Permitted
Encumbrance. No portion of any Improvements (other than parking and driveway areas if permitted by
the applicable easement) will be/are constructed over areas subject to easements. Neither the
zoning nor any of the right to construct or to use any Improvements will be/is to any extent
dependent upon or related to any real estate other than the Land; and all approvals, licenses,
permits, certifications, filings and other actions required by law with respect to the
construction, use, occupancy and operation of the Mortgaged Property, have been or will be
received.
Section 2.3 Utilities; Services. The Mortgaged Property is serviced by all necessary
public utilities, including, but not limited to, water, electricity, natural gas, telephone, storm
sewer and sanitary sewer, and all such utilities are operational and have sufficient capacity.
There is no contract or agreement providing for services to or maintenance of the Mortgaged
Property which cannot be cancelled upon 30 days’ or less notice. The Mortgaged Property has access
to all public streets and railroad spurs and tracks, and is benefited by all necessary easements,
to allow the operation of the Mortgaged Property by Mortgagor as an ethanol plant in the ordinary
course of business and in a prudent manner.
Section 2.4 Construction of the Improvements. Mortgagor has, or prior to commencement
of construction of any Improvements will have, received all requisite building permits and
approvals, all approvals and consents to the Plans and without limiting the generality of the
foregoing, complied with all requirements of law applicable to the construction of the Project.
Mortgagor shall promptly complete all Improvements in a good and workmanlike manner in accordance
with the Plans approved by Mortgagee and Mortgagor shall promptly pay when due all bills and costs
for labor, services, utilities and materials, and Mortgagor shall keep the Mortgaged Property free
from any liens or encumbrances of any nature except for this Mortgage, the Permitted Exceptions and
the liens and encumbrances permitted by the Loan Agreement.
Section 2.5 Business Purpose; Usury Exemption. Mortgagor hereby represents, or if
applicable Mortgagor has been advised by its beneficiaries, that the proceeds of the loan secured
by this Mortgage will be used for the purposes specified in 815 ILCS 205/4 and that the principal
obligation secured hereby constitutes a “business loan” that comes within the purview and operation
of that section
Section 2.6 Antiterrorism Regulations. Neither the Mortgagor, any affiliate of the
Mortgagor, nor any person owning an interest in either of the foregoing is a “Specially Designated
National” or a “Blocked Person” as those terms are defined in the Office of Foreign Asset Control
Regulations, 31 C.F.R. Part 500.
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Section 2.7 Prohibited Person Compliance. Mortgagor warrants, represents, and
covenants that neither Mortgagor, any guarantor, nor any of their respective affiliated entities is
or will be an entity or person (i) that is listed in the Annex to or is otherwise subject to the
provisions of Executive Order 13,224, issued on September 24, 2001 (EO13224); (ii) whose name
appears on the United States Treasury Department’s Office of Foreign Assets Control’s (OFAC) most
current list of “Specially Designated National and Blocked Persons,” (which list may be published
from time to time in various mediums including, but not limited to, the OFAC Web site,
xxx.xxxxx.xxx/xxxx/x00xxx.xxx); (iii) who commits, threatens to commit, or supports “terrorism,” as
that term is defined in EO13224; or (iv) who is otherwise affiliated with any entity or person
listed above (any and all parties or persons described in subparts i — iv are herein referred to as
a Prohibited Person). Mortgagor covenants and agrees that neither Mortgagor, nor any guarantor nor
any of their respective affiliated entities, will knowingly (i) conduct any business, nor engage in
any transaction or dealing, with any Prohibited Person, including but not limited to the making or
receiving of any contribution of funds, goods, or services to or for the benefit of a Prohibited
Person; or (ii) engage in or conspire to engage in any transaction that evades or avoids, has the
purpose of evading or avoiding, or attempts to violate any of the prohibitions set forth in
EO13,224. Mortgagor further covenants and agrees to deliver (from time to time) to Mortgagee any
such certification or other evidence as may be requested by Mortgagee in its sole and absolute
discretion, confirming that, to the best of Mortgagor’s knowledge, (i) neither Mortgagor nor any
guarantor is a Prohibited Person and (ii) neither Mortgagor nor any guarantor has engaged in any
business, transaction, or dealings with a Prohibited Person, including but not limited to the
making or receiving of any contribution of funds, goods, or services to or for the benefit of a
Prohibited Person.
ARTICLE 3.
CASUALTY; CONDEMNATION
CASUALTY; CONDEMNATION
Section 3.1 Casualty, Repair, Proof of Loss. If any portion of the Mortgaged Property
shall be damaged or destroyed by any cause (a “Casualty”), Mortgagor shall, subject to Section 3.2
below:
(a) give notice to the Mortgagee as promptly as practicable; and
(b) unless the Mortgagee has withheld Casualty proceeds during the twelve (12) months prior to
the latest maturity date of the Loans and insurance proceeds and other funds are not available to
Mortgagor, promptly commence and diligently pursue to completion (in accordance with plans and
specifications approved by Mortgagee) the restoration, repair and rebuilding of the Mortgaged
Property at least as nearly as possible to its value, condition and character immediately prior to
the Casualty; and
(c) if the Casualty is covered by insurance, immediately make proof of loss and to the extent
permitted by this Mortgage, collect all insurance proceeds, all such proceeds to be payable to
Mortgagee or as Mortgagee shall direct. If an Event of Default shall be in existence, or if
Mortgagor shall fail to provide notice to Mortgagee of filing proof of loss, or if Mortgagor shall
not be diligently proceeding, in Mortgagee’s reasonable opinion, to collect such insurance
proceeds, then Mortgagee may, but is not obligated to, make proof of loss, and is
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authorized, but is not obligated, to settle any claim with respect thereto, and to collect the
proceeds thereof.
Section 3.2 Use of Insurance Proceeds. Mortgagee shall make the net insurance
proceeds received by it (after reimbursement of Mortgagee’s reasonable out-of pocket costs of
collecting and disbursing the same) available to Mortgagor to pay the cost of restoration, repair
and rebuilding of the Mortgaged Property, subject to all of the following conditions precedent:
(a) There shall be no Event of Default in existence at the time of any disbursement of the
insurance proceeds;
(b) Mortgagee shall have determined, in its reasonable discretion, that the cost of
restoration, repair and rebuilding is and will be equal to or less than the amount of insurance
proceeds and other funds deposited by Mortgagor with Mortgagee for restoration and repair of the
Mortgaged Property;
(c) Mortgagee shall have determined, in its reasonable discretion, that the restoration,
repair and rebuilding can be completed in accordance with plans and specifications approved by
Mortgagee (such approval not to be unreasonably withheld), and in accordance with applicable laws,
codes, regulations and ordinances;
(d) All funds shall be disbursed, at Mortgagee’s option, in accordance with Mortgagee’s
customary disbursement procedures for construction loans;
(e) The Casualty results in damage of $1,000,000.00 or less; and
(f) The restoration, repair and rebuilding of the Mortgaged Property can be completed within
nine (9) months following the date of the Casualty, or such additional period of time as Mortgagee,
in its reasonable discretion, shall permit.
If any of these conditions shall not be satisfied, then Mortgagee shall have the right to either
use the insurance proceeds to prepay the Obligations or make such proceeds available for
restoration, repair and rebuilding of the Mortgaged Property. If any insurance proceeds shall
remain after completion of the restoration, repair and rebuilding of the Mortgaged Property, they
shall be disbursed to Mortgagor, or the Person legally entitled thereto, or at the Mortgagee’s
discretion, used to prepay the Obligations.
In the event such insurance proceeds are made available for restoration and repair by the
Mortgagee, Mortgagor shall pay all costs incurred by Mortgagee in connection with the application
of such insurance proceeds (including but not limited to reasonable costs incurred by Mortgagee,
and a title company or agent approved by Mortgagee in overseeing the disbursement of such insurance
proceeds), and the Improvements shall be restored or rebuilt so as to be of at least equal value
and substantially the same character as prior to such damage or destruction.
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Section 3.3 Condemnation. If any portion of the Mortgaged Property shall be taken,
condemned or acquired pursuant to exercise of the power of eminent domain or threat thereof (a
“Condemnation”), Mortgagor shall:
(a) give notice thereof to Mortgagee as promptly as practicable, and send a copy of each
document received by Mortgagor in connection with the Condemnation to Mortgagee promptly after
receipt; and
(b) diligently pursue any negotiation and prosecute any proceeding in connection with the
Condemnation at Mortgagor’s expense. If an Event of Default shall be in existence, or if
Mortgagor, in Mortgagee’s reasonable opinion, shall not be diligently negotiating or prosecuting
the claim, Mortgagee is authorized, but not required, to negotiate and prosecute the claim and
appear at any hearing for itself and on behalf of Mortgagor and to compromise or settle all
compensation for the Condemnation. Mortgagee shall not be liable to Mortgagor for any failure by
Mortgagee to collect or to exercise diligence in collecting any such compensation. Mortgagor shall
not compromise or settle any claim resulting from the Condemnation if such settlement shall result
in payment of more than $10,000 less than Mortgagee’s reasonable estimate of the damages therefrom.
All awards shall be paid to Mortgagee.
Section 3.4 Use of Condemnation Proceeds. Mortgagee shall make the net proceeds of
any Condemnation received by it (after reimbursement of Mortgagee’s out-of-pocket costs of
collecting and disbursing the same) available to Mortgagor for restoration, repair and rebuilding
of the Mortgaged Property, subject to all of the following conditions precedent:
(a) There shall be no Event of Default in existence at the time of any disbursement of the
condemnation proceeds;
(b) Mortgagee shall have determined, in its reasonable discretion, that the cost of
restoration, repair and rebuilding is and will be equal to or less than the amount of condemnation
proceeds and other funds deposited by Mortgagor with Mortgagee;
(c) Mortgagee shall have determined, in its reasonable discretion, that the restoration,
repair and rebuilding can be completed in accordance with plans and specifications approved by
Mortgagee (such approval not to be unreasonably withheld), in accordance with applicable laws,
codes, regulations and ordinances and in accordance with the terms, and within the time
requirements in order to prevent termination of any Lease;
(d) All funds shall be disbursed, at Mortgagee’s option, in accordance with Mortgagee’s
customary disbursement procedures for construction loans; and
(e) The condemnation or taking causes damage of $500,000.00 or less or requires restoration
which costs less than $500,000.00; and
(f) The restoration, repair and rebuilding of the Mortgaged Property can be completed within
nine (9) months of the date of the taking, or such additional period of time as Mortgagee, in its
reasonable discretion, shall permit.
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If any of these conditions shall not be satisfied, then Mortgagee shall have the right to either
use the condemnation award proceeds to prepay the Obligations or make such proceeds available for
restoration, repair and rebuilding of the Mortgaged Property. If any condemnation proceeds shall
remain after completion of the restoration, repair and rebuilding of the Mortgaged Property, they
shall be disbursed to Mortgagor, or to the Person legally entitled thereto, or at Mortgagee’s
discretion, used to prepay the Obligations.
ARTICLE 4.
DEFAULTS AND REMEDIES
DEFAULTS AND REMEDIES
Section 4.1 Events of Default. An Event of Default, as defined in the Loan Agreement
or any other Loan Document, shall constitute an Event of Default hereunder. In addition,
Mortgagor’s failure to perform, observe or comply with its obligations in this Mortgage shall be an
Event of Default.
Section 4.2 Remedies. Subject to any applicable notice and cure and/or grace periods
in the Loan Agreement after the occurrence and continuance of an Event of Default, Mortgagee shall
be entitled to invoke any and all of the rights and remedies described below, in addition to all
other rights and remedies available to Mortgagee under any Loan Document or available at law or in
equity. All of such rights and remedies shall be cumulative, and the exercise of any one or more
of them shall not constitute an election of remedies.
(a) Acceleration. Mortgagee may declare any or all of the Obligations to be due and
payable immediately. In addition, Mortgagee shall have no further obligation to make any Advances
under any Loan. If, while any insurance proceeds or condemnation awards are being held by
Mortgagee to reimburse Mortgagor for the cost of rebuilding or restoration of buildings or
improvements on the Mortgaged Property, Mortgagee shall accelerate the Obligations, then and in
such event, Mortgagee shall be entitled to apply all such insurance proceeds and condemnation
awards then held by it in reduction of the Obligations and any excess held by it over the amount of
Obligations then due hereunder shall be returned to Mortgagor or the Persons legally entitled
thereto without interest.
(b) Receiver. Mortgagee shall have the right to obtain a receiver in accordance with
applicable law at any time after an Event of Default which is continuing, whether or not an action
for foreclosure has been commenced. Any court having jurisdiction shall, at the request of
Mortgagee following an Event of Default which is continuing, appoint a receiver to take immediate
possession of the Mortgaged Property and to rent or operate the same as he may deem best for the
interest of all parties concerned, and unless otherwise required by the court, such receiver shall
be liable to account to the Mortgagor only for the net profits, after application of rents, issues
and profits upon the costs and expenses of the receivership and upon the Obligations.
Mortgagee shall have the right, at any time to advance money to the receiver to pay any part
or all of the items which the receiver should otherwise pay if cash were available from the
Mortgaged Property and sums so advanced, with interest at an annual rate equal to nine percent
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(9%) in excess of the one month LIBOR Rate shall be secured hereby, or if advanced during the
period of redemption shall be a part of the sum required to be paid to redeem from the sale.
(c) Entry. To the extent allowed by applicable law, Mortgagee, in person, by agent or
by court-appointed receiver, may enter, take possession of, manage and operate all or any part of
the Mortgaged Property, and may also do any and all other things in connection with those actions
that Mortgagee may in its sole discretion consider necessary and appropriate to protect the
security of this Mortgage. Such other things may include: taking and possessing all of
Mortgagor’s or the then owner’s books and records; entering into, enforcing, modifying or canceling
leases on such terms and conditions as Mortgagee may consider proper; obtaining and evicting
tenants; fixing or modifying Rents; collection and receiving any payment of money owing to
Mortgagee; terminating management agreements, contracts or agents/managers responsible for the
operation and/or property management of the Mortgaged Property; completing any unfinished
construction; and/or contracting for and making repairs and alterations. If Mortgagee so requests,
Mortgagor shall assemble all of the Mortgaged Property that has been removed from the Land and make
all of it available to Mortgagee at the site of the Land. Mortgagor hereby irrevocably constitutes
and appoints Mortgagee as Mortgagor’s attorney-in-fact to perform such acts and execute such
documents as Mortgagee in its sole discretion may consider to be appropriate in connection with
taking these measures, including endorsement of Mortgagor’s name on any instruments, such
appointment being coupled with an interest and irrevocable.
(d) Cure; Protection of Security. Mortgagee may cure any breach or default of
Mortgagor, and if it chooses to do so in connection with any such cure, Mortgagee may also entered
the Mortgaged Property and/or do any and all other things which it may in its sole reasonable
discretion consider necessary and appropriate to protect the security of this Mortgage. Any
reasonable amounts expended by Mortgagee under this Section 4.2(d) shall be secured by this
Mortgage and shall be payable upon demand and shall accrue interest at a variable per annum rate
equal to nine percent (9%) in excess of the one month LIBOR Rate until paid in full.
(e) Uniform Commercial Code Remedies. Mortgagee may exercise any or all of the
remedies granted to a secured party under the UCC.
(f) Foreclosure; Lawsuits. In the event that any provision in this Mortgage shall be
inconsistent with any provision of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1101
et seq. herein called the “Act”), the provisions of the Act shall take precedence
over the provisions of this Mortgage, but shall not invalidate or render unenforceable any other
provision of this Mortgage that can be construed in a manner consistent with the Act. If any
provision of this Mortgage shall grant to Mortgagee any rights or remedies upon an Event of Default
which are more limited than the rights that would otherwise be vested in Mortgagee under the Act in
the absence of said provision, Mortgagee shall be vested with the rights granted in the Act to the
full extent permitted by law. Without limiting the generality of the foregoing, all expenses
incurred by Mortgagee to the extent reimbursable under 735 ILCS 5/15-1510 and 735 ILCS 5/15-1512 of
the Act, whether incurred before or after any decree or judgment of foreclosure, and whether or not
enumerated in this Mortgage, shall be added to the Obligations.
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Mortgagee or its nominee may institute such mortgage foreclosure actions provided for by
Illinois law in accordance with applicable law and may bid and become the purchaser of all or any
part of the Mortgaged Property at any foreclosure or other sale hereunder, and the amount of
Mortgagee’s successful bid shall be credited on the Obligations. Without limiting the foregoing,
Mortgagee may proceed by a suit or suits in law or equity, whether for specific performance of any
covenant or agreement herein contained or contained in any of the other Loan Documents, or in aid
of the execution of any power herein or therein granted, or for any foreclosure under the judgment
or decree of any court of competent jurisdiction, or for damages, or to collect the indebtedness
secured hereby, or for the enforcement of any other appropriate legal, equitable, statutory or
contractual remedy.
(g) Other Remedies. Mortgagee may exercise all rights and remedies contained in any
other instrument, document, agreement or other writing heretofore, concurrently or in the future
executed by Mortgagor or any other Person or entity in favor of Mortgagee in connection with the
Obligations or any part thereof, without prejudice to the right of Mortgagee thereafter to enforce
any appropriate remedy against Mortgagor. Mortgagee shall have the right to pursue all remedies
afforded to a Mortgagee under applicable law, and shall have the benefit of all of the provisions
of such applicable law, including all amendments thereto which may become effective from time to
time after the date hereof. In the event any provision of such statutes which is specifically
referred to herein may be repealed, as allowed under applicable law, 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.
(h) Power of Sale for Personal Mortgaged Property. Under this power of sale,
Mortgagee shall have the discretionary right to cause some or all of the Mortgaged Property, which
constitutes personal property, to be sold or otherwise disposed of in any combination and in any
manner permitted by applicable law. For purposes of this power of sale, to the extent allowed by
applicable law, Mortgagee may elect to treat as personal property any Mortgaged Property which is
intangible or which can be severed from the Land or Improvements without causing structural damage.
If it chooses to do so, Mortgagee may dispose of any personal property, in any manner permitted by
Article 9 of the UCC, including any public or private sale, or in any manner permitted by any other
applicable law.
(i) Single or Multiple Foreclosure Sales. If the Mortgaged Property consists of more
than one lot, parcel or item of Mortgaged Property, Mortgagee may, in accordance with applicable
law:
(i) designate the order in which the lots, parcels and/or items shall be sold or disposed of
or offered for sale or disposition; and
(ii) elect to dispose of the lots, parcels and/or items through a single consolidated sale or
disposition to be held or made under or in connection with judicial proceedings, or by virtue of a
judgment and decree of foreclosure and sale, or pursuant to the power of sale contained herein; or
through two or more such sales or dispositions; or in any other manner Mortgagee may deem to be in
its best interests (any foreclosure sale or disposition as
18
permitted by the terms hereof is sometimes referred to herein as a “Foreclosure Sale;” and
any two or more such sales, “Foreclosure Sales”).
If it chooses to have more than one Foreclosure Sale, Mortgagee at its option may cause the
Foreclosure Sales to be held simultaneously or successively, on the same day, or on such different
days and at such different times and in such order as it may deem to be in its best interests. No
Foreclosure Sale shall terminate or affect the liens of this Mortgage on any part of the Mortgaged
Property which has not been sold, until the Obligations have been paid in full.
Section 4.3 Expenses of Exercising Rights Powers and Remedies. The reasonable
expenses (including any receiver’s fees, reasonable attorneys’ fees, appraisers’ fees,
environmental engineers’ and/or consultants’ fees, auctioneer’s fees and costs, costs incurred for
documentary and expert evidence, stenographers’ charges, publication costs, costs (which may be
estimated as to items to be expended after entry of the decree of foreclosure) of procuring all
abstracts of title, continuations of abstracts of title, title searches and examinations, UCC and
chattel lien searches, and similar data and assurances with respect to title as Mortgagee may deem
reasonably necessary either to prosecute any foreclosure action or to evidence to bidders at any
sale which may be had pursuant to any foreclosure decree the true condition of the title to or the
value of the Mortgaged Property) incurred by Mortgagee after the occurrence and continuance of any
Event of Default and/or in pursuing the rights, powers and remedies contained in this Mortgage
shall be immediately due and payable by Mortgagor, with interest thereon from the date incurred at
an annual rate equal to nine percent (9%) in excess of the one month LIBOR Rate and shall be added
to the indebtedness secured by this Mortgage.
Section 4.4 Restoration of Position. In case Mortgagee shall have proceeded to
enforce any right under this Mortgage by foreclosure, sale, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, then, and in every such case,
Mortgagor and Mortgagee shall be restored to their former positions and rights hereunder with
respect to the Mortgaged Property subject to the lien hereof, except as might otherwise be
determined by a final order of a court of competent jurisdiction.
Section 4.5 Marshalling. Mortgagor, for itself and on behalf of all Persons which may
claim under Mortgagor, hereby waives all requirements of law relating to the marshalling of assets,
if any, which would be applicable in connection with the enforcement by Mortgagee of its remedies
for an Event of Default hereunder, absent this waiver. Mortgagee shall not be required to sell or
realize upon any portion of the Mortgaged Property before selling or realizing upon any other
portion thereof.
Section 4.6 Waivers. No waiver of any provision hereof shall be implied from the
conduct of the parties. Any such waiver must be in writing and must be signed by the party against
which such waiver is sought to be enforced. The waiver or release of any breach of the provisions
set forth herein to be kept and performed shall not be a waiver or release of any preceding or
subsequent breach of the same or any other provision. No receipt of partial payment after
acceleration of the Obligations shall waive the acceleration. No payment by Mortgagor or receipt
by Mortgagee of a lesser amount than the full amount secured hereby shall be deemed to be other
than on account of the sums due and payable hereunder, nor shall any
19
endorsement or statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, and Mortgagee may accept any check or payment without prejudice
to Mortgagee’s right to recover the balance of such sums or to pursue any other remedy provided in
this Mortgage. The consent by Mortgagee to any matter or event requiring such consent shall not
constitute a waiver of the necessity for such consent to any subsequent matter or event.
Section 4.7 Mortgagee’s Right to Cure Defaults. If Mortgagor shall fail to comply
with any of the terms of this Mortgage with respect to the procuring of insurance, the payment of
taxes, assessments and other charges, the keeping of the Mortgaged Property in repair, or any other
term contained herein and such failure shall continue for a period of ten (10) days after notice of
such failure from Mortgagee, Mortgagee may make advances to perform the same without releasing any
of the Obligations. Mortgagor agrees to repay upon demand all sums so advanced and all sums
expended by Mortgagee in connection with such performance, including without limitation reasonable
attorneys’ fees, with interest at an annual rate equal to nine percent (9%) in excess of the one
month LIBOR Rate from the dates such advances are made until paid in full, and all sums so advanced
and/or expenses incurred, with interest, shall be secured hereby, but no such advance and/or
incurring of expense by Mortgagee, shall be deemed to relieve Mortgagor from any default hereunder,
or to release any of the Obligations.
Section 4.8 Collateral Protection Act. Pursuant to the requirements of the Illinois
Collateral Protection Act, the Mortgagor is hereby notified as follows: Unless the Mortgagor
provides the Mortgagee with evidence of the insurance coverage required by this Mortgage or any of
the other Loan Documents, Mortgagee may purchase insurance at the Mortgagor’s expense to protect
Mortgagee’s interests in the Mortgaged Property for the Obligations. This insurance may, but need
not protect the Mortgagor’s interests. The coverage the Mortgagee purchases may not pay any claim
that the Mortgagor makes or any claim that is made against the Mortgagor in connection with the
Mortgaged Property or any other collateral for the Obligations. The Mortgagor may later cancel any
insurance purchased by Mortgagee but only after providing Mortgagee with evidence that the
Mortgagor has obtained insurance as required by this Mortgage or any of the other Loan Documents.
If Mortgagee purchases insurance for the Mortgaged Property for the Obligations, the Mortgagor will
be responsible for the costs of that insurance, including interest and any other charges that
Mortgagee may lawfully impose in connection with the placement of the insurance, until the
effective date of the cancellation or expiration of the insurance. The costs of the insurance may
be added to the total outstanding Obligations. The costs of the insurance obtained by Mortgagee
may be more than the cost of insurance that the Mortgagor may be able to obtain on its own.
Section 4.9 Suits and Proceedings. Mortgagee shall have the power and authority, upon
prior notice to Mortgagor, to institute and maintain any suits and proceedings as Mortgagee may
deem advisable to (i) prevent any impairment of the Mortgaged Property by any act which may be
unlawful or by any violation of this Mortgage, (ii) preserve or protect its interest in the
Mortgaged Property, or (iii) restrain the enforcement of or compliance with any legislation or
other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if,
in the sole opinion of Mortgagee, the enforcement of or compliance with such enactment, rule or
order might impair the security hereunder or be prejudicial to Mortgagee’s interest.
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ARTICLE 5.
MISCELLANEOUS
MISCELLANEOUS
Section 5.1 Binding Effect; Survival; Number; Gender. This Mortgage shall be binding
on and inure to the benefit of the parties hereto, and their respective heirs, legal
representatives, successors and assigns. All agreements, representations and warranties contained
herein or otherwise heretofore made by Mortgagor to Mortgagee shall survive the execution and
delivery hereof. The singular of all terms used herein shall include the plural, the plural shall
include the singular, and the use of any gender herein shall include all other genders, where the
context so requires or permits.
Section 5.2 Severability. The unenforceability or invalidity of any provision of this
Mortgage as to any person or circumstance shall not render that provision unenforceable or invalid
as to any other person or circumstance.
Section 5.3 Notices. Any notice or other communication to any party in connection
with this Mortgage shall be in writing and shall be sent by manual delivery, facsimile
transmission, overnight courier or United States mail (postage prepaid) addressed to such party at
the address specified below, or at such other address as such party shall have specified to the
other party hereto in writing. All periods of notice shall be measured from the date of delivery
thereof if manually delivered, from the date of sending thereof if sent by facsimile transmission,
from the first business day after the date of sending if sent by overnight courier, or from four
(4) days after the date of mailing if mailed. Notices shall be given to or made upon the
respective parties hereto at their respective addresses set forth below:
| If to Mortgagee: | First National Bank of Omaha | |||
| 1620 Dodge Street, Stop 1050 | ||||
| Omaha, Nebraska 68197-1050 | ||||
| Attn: Xxxxxx Xxxxxx | ||||
| Fax No.: (000) 000-0000 | ||||
| If to Mortgagor: | One Earth Energy, LLC | |||
| 0000 Xxxx 0xx Xxxxxx | ||||
| Xxxxxx Xxxx, Xxxxxxxx 00000-0000 | ||||
| Attn: Xxxxx Xxxxx | ||||
| Fax No.: (217) 784 — 8949 |
Either party may change its address for notices by a notice given pursuant to this Section.
Section 5.4 Applicable Law. This Mortgage shall be construed and enforceable in
accordance with, and be governed by, the laws of the State of Illinois, without giving effect to
conflict of laws or principles thereof.
Section 5.5 Waiver of Reinstatement and Other Rights. Mortgagor acknowledges that the
transaction of which this Mortgage is a part is a transaction which does not include either
21
agricultural real estate as defined in 735 ILCS 5/15-1201 of the Act, or residential real
estate (as defined in 735 ILCS 15/1219 of the Act), and to the full extent permitted by law, hereby
voluntarily and knowingly waives its rights to reinstatement and redemption as allowed under 735
ILCS 5/15-1601 of the Act, and to the full extent permitted by law, waives the benefits of all
present and future valuation, appraisement, homestead, exemption, stay, extension or redemption,
right to notice of election to accelerate the Obligations, and moratorium laws under any state or
federal law.
Section 5.6 Waiver of Jury Trial. Mortgagor and Mortgagee each irrevocably waives any
and all right to trial by jury in any legal proceeding arising out of or relating to this Mortgage
or the transactions contemplated hereby.
Section 5.7 Effect. This Mortgage is in addition and not in substitution for any
other guarantees, covenants, obligations or other rights now or hereafter held by Mortgagee from
any other person or entity in connection with the Obligations.
Section 5.8 Assignability. Mortgagee shall have the right to assign this Mortgage, in
whole or in part, or sell participation interests herein, to any Person obtaining an interest in
the Loans.
Section 5.9 Headings. Headings of the Sections of this Mortgage are inserted for
convenience only and shall not be deemed to constitute a part hereof.
Section 5.10 Fixture Filing. This instrument shall be deemed to be a Fixture Filing
within the meaning of the UCC, and for such purpose, the following information is given:
| (a) | Name and address of Debtor: | One Earth Energy, LLC | ||||
| 0000 Xxxx 0xx Xxxxxx | ||||||
| Xxxxxx Xxxx, Xxxxxxxx 00000-0000 | ||||||
| XXX | ||||||
| (b) | Type of Organization: | Limited liability company | ||||
| (c) | Jurisdiction of Organization: | Illinois | ||||
| (d) | Organizational I.D. No.: | 01686828 | ||||
| (e) | Name and address of Secured | First National Bank of Omaha | ||||
| Party: | 1620 Dodge Street, Stop 1050 | |||||
| Xxxxx, Xxxxxxxx 00000-0000 | ||||||
| XXX | ||||||
| (f) | Description of the collateral: | See granting clause above |
22
| (g) | Description of real estate to which the collateral is attached or upon which it is or will be located: | See Exhibit A hereto. |
Some of the above-described collateral is or is to become fixtures upon the above-described real
estate, and this Fixture Filing is to be filed for record in the public real estate records.
Mortgagor is the owner of the Land and Improvements.
Section 5.11 Estoppel Certificate. At any time and from time to time, within ten (10)
Business Days after receipt from Mortgagee of a written request therefor, Mortgagor shall prepare,
execute and deliver to Mortgagee, and/or any other party which Mortgagee may designate, an estoppel
certificate stating: (a) the amount of the unpaid principal balance and accrued interest secured
by this Mortgage on the date thereof; (b) the date upon which the last payment secured by this
Mortgage was made and the date the next payment secured by this Mortgage is due; and (c) that the
provisions of the Loan Agreement, this Mortgage and the other Loan Documents described in said
request have not been materially amended or changed in any manner, that there are no material
defaults or Events of Default then existing under the terms of the Loan Agreement, this Mortgage or
the other Loan Documents described in said request, and that Mortgagor has no defenses, claims or
offsets against full enforcement hereof and thereof according to the terms hereof and thereof, or
listing and describing any such amendments, changes, defaults, events of default, defenses, claims
or offsets which do exist.
Section 5.12 Definitions. Capitalized terms not otherwise defined in this Mortgage
shall have the meaning given to such terms in the Loan Agreement.
ARTICLE 6.
ENVIRONMENTAL
ENVIRONMENTAL
Section 6.1 Environmental Matters; Notice; Indemnity. Mortgagor covenants and agrees
as follows:
(a) For purposes of this Mortgage, the following definitions shall apply:
(i) The term “Environmental Law” means and includes any federal, state or local law, statute,
regulation or ordinance pertaining to health, industrial hygiene or the environmental or ecological
conditions on, under or about the Mortgaged Property, including without limitation each of the
following (and their respective successor provisions): the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. sections 9601 et seq.
(“CERCLA”); the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. sections 6901
et seq. (“RCRA”); the Federal Hazardous Materials Transportation Act, as amended, 49 U.S.C.
sections 1801 et seq.; the Toxic Substance Control Act, as amended, 15 U.S.C. sections 2601
et seq.; the Clean Air Act, as amended, 42 U.S.C. sections 1857 et seq.; the
Federal Water Pollution Control Act, as amended, 33 U.S.C. sections 1251 et seq.; and the
rules, regulations and ordinances of the U.S. Environmental Protection
23
Agency and of all other federal, state, county and municipal agencies, boards, commissions and
other governmental bodies and officers having jurisdiction over the Mortgaged Property or the use
or operation of the Mortgaged Property.
(ii) The term “Hazardous Substance” means and includes: (1) those substances included within
the definitions of “hazardous substances”, “hazardous materials, hazardous waste”, “pollutants”,
“toxic substances” or “solid waste” in any Environmental Law; (2) those substances listed in the
U.S. Department of Transportation Table or amendments thereto (49 CFR 172.101) or by the U.S.
Environmental Protection Agency (or any successor agency) as hazardous substances (40 CFR Part 302
and any amendments thereto); (3) those other substances, materials and wastes which are or become,
regulated under any applicable federal, state or local law, regulation or ordinance or by any
federal, state or local governmental agency, board, commission or other governmental body, or which
are or become classified as hazardous or toxic by any such law, regulation or ordinance; and (4)
any material, waste or substance which is any of the following: (A) asbestos; (B) polychlorinated
biphenyl; (C) designated or listed as a “hazardous substance” pursuant to section 311 or section
307 of the Clean Water Act (33 U.S.C. sections 1251 et ); (D) explosive; (E) radioactive;
(F) a petroleum product; or (G) infectious waste. Notwithstanding anything to the contrary herein,
the term “Hazardous Substance” shall not include commercially sold products otherwise within the
definition of the term “Hazardous Substance”, but (X) which are used or disposed of by Mortgagor or
used or sold by tenants of the Mortgaged Property in the ordinary course of their respective
businesses, (Y) the presence of which product is not prohibited by applicable Environmental Law,
and (Z) the use and disposal of which are in all respects in accordance with applicable
Environmental Law.
(iii) The term “Enforcement or Remedial Action” means and includes any action taken by any
person or entity in an attempt or asserted attempt to enforce, to achieve compliance with, or to
collect or impose assessments, penalties, fines, or other sanctions provided by, any Environmental
Law.
(iv) The term “Environmental Liability” means and includes any claim, demand, obligation,
cause of action, accusation, allegation, order, violation, damage (including consequential damage),
injury, judgment, assessment, penalty, fine, cost of Enforcement or Remedial Action, or any other
cost or expense whatsoever, including actual, reasonable attorneys’ fees and disbursements,
resulting from or arising out of the violation or alleged violation of any Environmental Law, any
Enforcement or Remedial Action, or any alleged exposure of any person or property to any Hazardous
Substance.
(b) Mortgagor, its successors and assigns, after reasonable inquiry, covenants, warrants and
represents that, to the best of its knowledge, except as disclosed in the environmental studies
identified in Exhibit C attached hereto and incorporated herein by reference:
(i) No Hazardous Substances have been or shall be discharged, disbursed, released, stored,
treated, generated, disposed of, or allowed to escape or migrate, or shall threaten to be injected,
emptied, poured, leached, or spilled on or from the Mortgaged Property.
24
(ii) No asbestos or asbestos-containing materials have been or will be installed, used,
incorporated into, placed on, or disposed of on the Mortgaged Property.
(iii) No polychlorinated biphenyls (“PCBs”) are or will be located on or in the Mortgaged
Property, in the form of electrical transformers, fluorescent light fixtures with ballasts, cooling
oils, or any other device.
(iv) No investigation, administrative order, consent order and agreement, litigation,
settlement, lien or encumbrance with respect to Hazardous Substances is proposed, threatened,
anticipated or in existence with respect to the Mortgaged Property.
(v) The Mortgaged Property and Mortgagor’s operations at the Mortgaged Property are in
compliance with all applicable Environmental Laws including without limitation any, state and local
statutes, laws and regulations and all permits and licenses issued for the operation of the
Mortgaged Property. No notice has been served on Mortgagor, or any subsidiary of Mortgagor, from
any entity, government body, or individual claiming any violation of any law, regulation, ordinance
or code, or requiring compliance with any law, regulation, ordinance or code, or demanding payment
or contribution for environmental damage or injury to natural resources. Copies of any such notices
received subsequent to the date hereof shall be forwarded to Mortgagee within three (3) days of
their receipt.
(vi) Mortgagor has no knowledge of the release or threat of release of any Hazardous
Substances from any property adjoining or in the immediate vicinity of the Mortgaged Property.
(vii) No portion of the Mortgaged Property is a wetland or other water of the United States
subject to jurisdiction under Section 404 of the Clean Water Act (33 U.S.C. § 1344) or any
comparable state statute or local ordinance or regulation defining or protecting wetlands or other
special aquatic areas.
(viii) There are no concentrations of radon or other radioactive gases or materials in any
buildings or structures on the Mortgaged Property that exceed background ambient air levels.
(ix) To the best of Mortgagor’s knowledge, there have been no complaints of illness or
sickness alleged to result from conditions inside any buildings or structures on the Mortgaged
Property.
(c) Mortgagor will give prompt written notice to Mortgagee of:
(i) any proceeding, known investigation or inquiry commenced by any governmental authority
with respect to the presence of any Hazardous Substance on, under or about the Mortgaged Property
or the migration thereof to or from adjoining property;
25
(ii) all claims made or threatened by any individual or entity against Mortgagor or the
Mortgaged Property relating to any loss or injury allegedly resulting from any Hazardous Substance;
(iii) the discovery by Mortgagor of any occurrence or condition on any real property adjoining
or in the vicinity of the Mortgaged Property which might cause the Mortgaged Property or any part
thereof to be subject to any restriction on the ownership, occupancy, transferability or use of the
Mortgaged Property under any Environmental Law; and
(iv) any notice from any governmental authority alleging or claiming the violation of or
non-compliance with any permit or license relating to Mortgagor’s operations on the Mortgaged
Property, or the revocation, or threatened revocation, of any such permit or license relating or
necessary to the operation of the Mortgagor’s business on the Mortgaged Property.
(d) Mortgagee shall have the right and privilege to: (i) join in and participate in, as a
party if it so elects, any one or more legal proceedings or actions initiated with respect to the
Mortgaged Property; and to (ii) have all costs and expenses thereof (including without limitation
Mortgagee’s reasonable attorneys’ fees and costs) paid by Mortgagor. In addition, Mortgagee and any
other Person designated by Mortgagee shall have the right, but not the obligation, to enter upon
the Mortgaged Property at any reasonable time to assess any and all aspects of the environmental
condition of the Mortgaged Property and its use, including, but not limited to, conducting any
environmental assessment or audit (the scope of which shall be determined by Mortgagee in its sole
discretion) and taking samples of air, soil, groundwater or other water, building materials, and
conducting invasive testing. Mortgagor shall cooperate with and provide access to Mortgagee or any
Person designated by Mortgagee.
(e) Mortgagor agrees to protect, defend, reimburse, indemnify and hold harmless Mortgagee, its
directors, officers, employees, agents, contractors, sub-contractors, licensees, invitees,
participants, successors and assigns, from and against any Environmental Liability and any and all
claims, demands, judgments, settlements, damages, actions, causes of action, injuries,
administrative orders, consent agreements and orders, liabilities, losses, penalties, costs,
including but not limited to any cleanup costs, remediation costs and response costs, and all
expenses of any kind whatsoever including reasonable attorneys’ fees and expenses, including but
not limited to those arising out of loss of life, injury to persons, property or business or damage
to natural resources in connection with the activities of Mortgagor, or parties in a contractual
relationship with Mortgagor, and any of them, the foregoing being collectively referred to as
“Claims”, which:
(i) arise out of the actual, alleged or threatened migration, spill, leaching, pouring,
emptying, injection, discharge, dispersal, release, storage, treatment, generation, disposal or
escape of any Hazardous Substances onto or from the Mortgaged Property; or
(ii) actually or allegedly arise out of, in connection with the Mortgaged Property, the use,
specification or inclusion of any product, material or process containing
26
Hazardous Substances, the failure to detect the existence or proportion of Hazardous
Substances in the soil, air, surface water or ground water, or the performance of or failure to
perform the abatement of any Hazardous Substances source or the replacement or removal of any soil,
water, surface water or ground water containing any Hazardous Substances; or
(iii) arise out of the breach of any covenant, warranty or representation contained in any
statement or other information given by Mortgagor to Mortgagee relating to environmental matters;
or
(iv) arise out of any Enforcement or Remedial Action or any judicial or administrative action
brought pursuant to any Environmental Law; or
(v) The violation of or non-compliance with any permits or licenses required in connection
with the operation of the Project.
Mortgagor, its successors and assigns, shall bear, pay and discharge when and as the same
become due and payable, any and all such judgments or claims for damages, penalties or otherwise
against Mortgagee described in this subparagraph (e), shall hold Mortgagee harmless for those
judgments or claims, and shall assume the burden and expense of defending all suits, administrative
proceedings, and negotiations of any description with any and all persons, political subdivisions
or government agencies arising out of any of the occurrences set forth in this subparagraph (e).
Mortgagor’s indemnifications and representations made herein shall survive any termination or
expiration of the documents evidencing or securing the Loans and/or the repayment of the
indebtedness evidenced by the Loans, including, but not limited to, any foreclosure on this
Mortgage or acceptance of a deed in lieu of foreclosure. Notwithstanding the foregoing,
Mortgagor’s liability hereunder shall terminate at such time as a private or governmental plaintiff
is barred by the applicable statute of limitations from bringing a claim for the actions giving
rise to Mortgagee’s claim for indemnification hereunder.
(f) If any investigation, site monitoring, containment, cleanup, removal, restoration or other
remedial work of any kind or nature (the “Remedial Work”) is reasonably necessary (in the case of
an operation and maintenance program or similar monitoring or preventative programs) or necessary,
both as determined by an independent environmental consultant selected by Mortgagee under any
applicable federal, state or local law, regulation or ordinance, or under any judicial or
administrative order or judgment, or by any governmental person, board, commission or agency,
because of or in connection with the current or future presence or release of a Hazardous Substance
into the air, soil, groundwater, or surface water at, on, about, under or within the Mortgaged
Property or any portion thereof, Mortgagor shall within thirty (30) days after written demand by
Mortgagee for the performance (or within such shorter time as may be required under applicable law,
regulation, ordinance, order or agreement), commence and thereafter diligently prosecute to
completion all such Remedial Work to the extent required by law. All Remedial Work shall be
performed by contractors approved in advance by Mortgagee (which approval in each case shall not be
unreasonably withheld or delayed) and under the supervision of a consulting engineer approved in
advance by Mortgagee.
27
All costs and expenses of such Remedial Work (including without limitation the reasonable fees
and expenses of Mortgagee’s counsel) incurred in connection with monitoring or review of the
Remedial Work shall be paid by Mortgagor. If Mortgagor shall fail or neglect to timely commence or
cause to be commenced, or shall fail to diligently prosecute to completion, such Remedial Work,
Mortgagee may (but shall not be required to) cause such Remedial Work to be performed; and all
costs and expenses thereof, or incurred in connection therewith (including, without limitation, the
reasonable fees and expenses of Mortgagee’s counsel), shall be paid by Mortgagor to Mortgagee
forthwith after demand and shall be a part of the Indebtedness.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY
THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS
WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY
ANOTHER WRITTEN AGREEMENT.
| MORTGAGOR: | ||||||||
| ONE EARTH ENERGY, LLC, an Illinois limited liability company |
||||||||
| By: | /s/ Xxxxx Xxxxx | |||||||
| Name: | Xxxxx Xxxxx | |||||||
| Title: | President | |||||||
Prepared by and Return to:
Xxxxx X. Xxxxxxx
28
Xxxxxxx Xxxxxxxx Xxxxxx LLP
0000 Xxxxxx Xx., Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
0000 Xxxxxx Xx., Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
29
CERTIFICATE OF ACKNOWLEDGMENT
STATE OF ILLINOIS
|
) | |||||
| ) | ss. | |||||
COUNTY OF WINNEBAGO
|
) |
Before me, a Notary Public in and for said County and State, personally appeared Xxxxxx Xxxxx,
known to me to be the President of One Earth Energy, LLC, an Illinois limited liability company,
and acknowledged the execution of the foregoing Construction Loan Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Financing Statement for and on behalf of such limited
liability company.
| /s/ Xxxxx Xxxxxxxx
|
||||
| Xxxxx Xxxxxxxx | ||||
| Notary Public-Printed Name | ||||
| Date: September 20, 2007 |
My commission expires:
9-23-09
My County of Residence: Winnebago County, Illinois
30
EXHIBIT A
LEGAL DESCRIPTION
LEGAL DESCRIPTION
Parcel 1:
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 of 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,
situated in the City of Xxxxxx, County of Ford and State of Illinois.
Said Parcel 1 contains 34.00 acres, more or less.
Said Parcel 1 contains 34.00 acres, more or less.
Parcel 2:
A part of the Northwest Quarter of Section 10, Township 23 North, Range 7 East of the Third
Principal Meridian, Xxxxxx City, Ford County, Illinois, more particularly described as follows:
Beginning at the Northeast Corner of Lot 4 in the First Addition to Jordan Industrial Park
Subdivision in the City of Xxxxxx City, Illinois, according to the Plat recorded as Document No.
205053 in the Ford County Recorder’s Office. From said Point of Beginning, thence west 1146.34
feet along the North Line of said Lot 4 to the Northwest Corner thereof; thence north 543.85 feet
along the East Right-of-Way line of Jordan Drive according to the Dedication thereof recorded as
Document No. 212435 in said Recorder’s Office which forms an angle to the left of 90°00’00” with
the last described course; thence east 20.00 feet along said Right-of-Way Line which forms an angle
to the left of 89°39’36” with the last described course; thence north 30.00 feet along said
Right-of-Way Line which forms an angle to the left of 270°20’24” with the last described course to
the Southwest Corner of Parcel 4 conveyed to Ameren Energy Generating Company by Warranty Deed
recorded as Document No. 235733 in said Recorder’s Office; thence east 150.65 feet along the South
Line of said Parcel 4 which forms an angle to the left of 89°39’36” with the last described course
to the Southeast Corner thereof; thence north 580.00 feet along the East Line of said Parcel 4 and
the East Line of a Tract of Land conveyed by Special Warranty Deed recorded as Document No. 216254
in said Recorder’s Office, which lines form an angle to the left of 269°57’50” with the last
described course to the Northeast Corner of said Tract, said Northeast Corner being on the North
Line of the Northwest Quarter of said Section 10; thence east 979.71 feet along said North Line
which forms an angle to the left of 90°02’10” with the last described course to the Northeast
Corner of the Northwest Quarter of said Section 10; thence south 1147.04 feet along the East Line
of the Northwest Quarter of said Section 10 which forms an angle to the left of 89°57’15; with the
last described course to the Point of Beginning, situated in the County of Ford and State of
Illinois, containing 28.07 acres, more or less.
Parcel 3:
Lot 4 in the First Addition to Jordan Industrial Park Subdivision in the City of Xxxxxx, Ford
County, Illinois, according to the Plat recorded as Document No. 205053 in the Ford County
Recorder’s Office excepting (Exception No. 1) therefrom the East 100 Feet of even width thereof and
also excepting (Exception No. 2) the following described tract: A part of Lot 4 in the First
Addition to Jordan Industrial Park Subdivision in the City of Xxxxxx City, Ford County, Illinois
according to the Plat recorded as Document No. 205053 in the Ford County Recorder’s Office, more
particularly described as follows: Beginning at a point on the North Line of said Lot 4 lying
100.00 feet west of the Northeast Corner thereof, said point being the Northwest Corner of a Tract
of Land conveyed to Xxxxxxx Line Railroad according to the Deed recorded as Document No. 217701 in
said Recorder’s Office. From said Point of Beginning, thence west 551.97 feet along the North Line
of said Lot 4 to the point of intersection with the Northerly Extension of the West Line of Lot 3
in said First Addition; thence south 599.81 feet along said Northerly Extension which forms an
angle to the right of 90°56’03” with the last described course to the Northwest Corner of said Lot
3 being a point on the South Line of said Lot 4; thence east 557.71 feet along the South Line of
said Lot 4 which forms an angle to the right of 89°03’55” with the last described course to a point
lying 100.00 feet west of the Southeast Corner of said Lot 4, said point being the Southwest Corner
of said Tract conveyed by Document No. 217701; thence north 599.74 feet along the West Line of said
Tract which forms an angle to the right of 90°23’11” with the last described course to the Point of
Beginning, situated in the County of Ford and State of Illinois.
Said Parcel 3 contains 7.85 acres, more or less.
Parcel 4:
A part of a Tract of Land conveyed by Warranty Deed recorded January 27, 2005 as Document No.
231777 in the Ford County Recorder’s Office being a part of Lot 4 in the First Addition to Jordan
Industrial Park Subdivision in the City of Xxxxxx City, Ford County, Illinois, according to the
Plant recorded as Document No. 205053 in the Ford County Recorder’s Office, more particularly
described as follows: Beginning at a point on the North Line of said Lot 4 lying 100.00 feet west
of the Northeast Corner thereof, said point being the Northwest Corner of a Tract of Land conveyed
to Xxxxxxx Line Railroad according to the Deed recorded as Document No. 217701 in said Recorder’s
Office. From said Point of Beginning, thence west 551.97 feet along the North Line of said Lot 4
to the point of intersection with the Northerly Extension of the West Line of Lot 3 in said First
Addition; thence south 599.81 feet along said Northerly Extension which forms an angle to the right
of 90°56’03” with the last described course to the Northwest Corner of said Lot 3 being a point on
the South Line of said Lot 4: thence east 60.00 feet along the South Line of said Lot 4 which forms
an angle to the right of 89°03’55” with the last described course; thence north 200.00 feet along a
line which is parallel with the West Line of said Tract conveyed by Document No. 217701 and which
forms an angle to the right of 90°23’11” with the last described course; thence east 497.71 feet
along a line which is parallel with the South Line of said Lot 4 and which forms an angle to the
right of 269°36’49” with the last described course to a point on the West Line of said Tract
conveyed by Document No. 217701 lying 200.00 feet north of the Southwest corner thereof; thence
North 399.74 feet along the West Line of said Tract which forms an angle to the right of 90°23’11”
with the last described course to the Point of Beginning, containing 5.35 acres, more or less.
Parcel 5:
All that part of the West 250 Feet of the Northeast Quarter of Section 10, Township 23 North, Range
7 East of the Third Principal Meridian, situated in the City of Xxxxxx, County of Ford and State of
Illinois, lying north of the North Line of a tract of land conveyed to Alliance Grain Company by
Warranty Deed recorded October 2, 2000, as Document No. 216478 in the Ford County Recorder’s
Office.
Said Parcel 5 contains 10.02 acres, more or less.
Parcel 6:
All that part of the North 100 Feet of the Northeast Quarter of Section 10, Township 23 North,
Range 7 East of the Third Principal Meridian, Xxxxxx City, Ford County, Illinois, lying west of the
Centerline of Drummer Creek and East of the East Line of a tract of land conveyed to One Earth
Energy, LLC by Warranty Deed recorded May 2, 2007, as Document No. 238795 in the Recorder’s Office
of Ford County, Illinois, situated in the County of Ford and State of Illinois.
Said Parcel 6 contains 4.84 acres, more or less.
EXHIBIT B
PERMITTED ENCUMBRANCES
PERMITTED ENCUMBRANCES
None.
EXHIBIT C
ENVIRONMENTAL STUDIES
ENVIRONMENTAL STUDIES
PHASE I ENVIRONMENTAL SITE ASSESSMENT DATED MARCH 30, 2006 PREPARED BY TERRACON CONSULTANTS, INC.