EXHIBIT 10.5
ILLINOIS MORTGAGE
THIS ILLINOIS MORTGAGE (the "Mortgage"), dated as of the 27th day of
November, 1996, is from Alliance Farms Cooperative Association, a Colorado
cooperative association, whose address is c/o Farmland Industries, Inc., 0000
Xxxxx Xxx Xxxxxxxxxx, X.X. Xxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000-0000,
Attention: Xxxxx Xxxxxx, Dept. 122 ("Mortgagor"), to Farmland Industries, Inc.,
a Kansas corporation, whose address is 0000 Xxxxx Xxx Xxxxxxxxxx, X.X. Xxx
0000, Xxxxxx Xxxx, Xxxxxxxx 00000-0000, Attention: Xxxx Xxxxxx, Dept. 189 (the
"Mortgagee");
GRANTING CLAUSE:
Mortgagor, in consideration of the debt hereinafter mentioned and
created, and the sum of Ten Dollars ($10.00) and other good and valuable
considerations to it paid by Mortgagee, the receipt and sufficiency of which are
hereby acknowledged, does by these presents MORTGAGE AND WARRANT to Mortgagee
all of that real property, legally described on Exhibit A hereto (the "Land"),
and all air space above the surface of the Land, with the tenements,
hereditaments, appurtenances, privileges, easements, franchises, rights,
appendages and immunities thereunto belonging or appertaining (said property,
rights and interests being hereinafter called the "Mortgaged Property")
TO HAVE AND TO HOLD the Mortgaged Property to Mortgagee, its
successors and assigns, in accordance with the provisions contained herein.
NOW, THEREFORE, the condition of this Mortgage is such that if
Mortgagor shall well and truly pay and perform the Secured Obligations (as
hereinafter defined), and shall perform, comply with and abide by each and every
of the agreements, conditions and covenants contained and set forth in this
Mortgage, the Note (as hereinafter defined), and the Loan Documents (as
hereinafter defined), then this Mortgage shall be released, without warranty, in
compliance with Illinois law.
AND, Mortgagor does hereby covenant and agree as follows:
ARTICLE ONE: SECURED OBLIGATIONS
This Mortgage is given to secure the payment of indebtedness in the
aggregate principal sum of One Million Three Hundred Sixty Thousand Dollars
($1,360,000), according to the terms of the Promissory Note, dated of even date
herewith, made by Mortgagor to the order of Mortgagee (the "Note"), and the
terms of any and all other instruments, agreements and documents now or
hereafter evidencing, securing or otherwise relating to the indebtedness
evidenced by the Note (the ALoan Documents@), and the performance and discharge
of each and every obligation of Mortgagor now or hereafter set forth in the Note
and the Loan Documents (the "Secured Obligations").
ARTICLE TWO: GENERAL COVENANTS, REPRESENTATIONS AND WARRANTIES
2.1 Payment and Performance. Mortgagor covenants and agrees to pay
and perform the Secured Obligations and to perform, comply with and abide by
each and every one of the agreements, conditions and covenants contained and set
forth in this Mortgage, the Note and the Loan Documents.
2.2 Title to Mortgaged Property. Mortgagor covenants, agrees and
warrants that it has good and marketable fee simple title to the Mortgaged
Property, free and clear of liens and encumbrances, and that Mortgagor has good
right and lawful authority to mortgage and convey the same in the manner and
form herein set forth.
2.3 Representations and Warranties. As a material inducement to
Mortgagee to enter into the transaction evidenced by the Note and the Loan
Documents, Mortgagor hereby unconditionally represents and warrants that (a)
there are no actions, suits or proceedings of a material nature pending or, to
the knowledge of Mortgagor, threatened against or affecting the Mortgagor or the
Mortgaged Property, or involving the validity or enforceability of this
Mortgage, the Note or the Loan Documents, or the priority of the lien and
security interest created by this Mortgage; and (b) no event has occurred
(including specifically Mortgagor's execution of the Mortgage and its
consummation of the transaction evidenced thereby) which will violate, be in
conflict with, result in the breach of or constitute (with due notice or lapse
of time or both) a default under any statute, regulation, rule, order or
limitation, or any mortgage, deed of trust, lease, contract, bylaws, articles of
incorporation, articles of partnership, partnership certificate or agreement,
declaration of trust or other agreement or document to which Mortgagor is a
party or by which Mortgagor or any of the Mortgaged Property may be bound or
affected, or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever on the Mortgaged Property other than the
liens and security interests created by, or otherwise permitted by, this
Mortgage.
ARTICLE THREE: TRANSFERS, ENCUMBRANCES AND LIENS
3.1 Sale or Transfer. If, at any time prior to the release of this
Mortgage of record, Mortgagor shall terminate its existence, liquidate or
dissolve, or shall sell all or substantially all of its assets, the same shall,
unless made with Mortgagee's prior written consent, be deemed an unauthorized
assignment, and shall constitute a Default under this Mortgage.
3.2 Claims Against Mortgaged Property. Mortgagor will pay, from time
to time when the same shall become due, all claims and demands of mechanics,
materialmen, laborers and others which, if unpaid, might result in, or permit
the creation of, a lien on the Mortgaged Property or any part thereof, or on the
revenues, rents, issues, income and profits arising therefrom, whether paramount
or subordinate to this Mortgage, and in general will do or cause to be done
everything necessary so that the first lien of this Mortgage shall be fully
preserved, at the cost of Mortgagor, without expense to Mortgagee.
Notwithstanding the foregoing, Mortgagor shall have the right to contest in good
faith any such liens, claims and demands by appropriate proceedings timely
commenced and diligently conducted.
ARTICLE FOUR: TAXES AND PUBLIC CHARGES
Mortgagor, from time to time when the same shall become due and
payable, will pay and discharge all taxes of every kind and nature (including
real and personal property taxes and income, franchise, withholding, profits and
gross receipts taxes), all general and special assessments, levies, permits,
inspection and license fees, all water and sewer rents and charges, and all
other public charges, whether of a like or different nature, imposed upon or
assessed against Mortgagor or the Mortgaged Property or any part thereof or upon
the revenues, rents, issues, income and profits of the Mortgaged Property, or
arising in respect of the occupancy, use or possession thereof. Mortgagor will,
within five (5) days of receipt of a written request from Mortgagee, deliver
receipts evidencing the payment of all such taxes, assessments, levies, fees,
rents and other public charges imposed or assessed against Mortgagor or the
Mortgaged Property or the revenues, rents, issues, income or profits thereof.
ARTICLE FIVE: INSURANCE
Mortgagor shall, at its sole cost and expense, but for the benefit of
Mortgagee and Mortgagor, maintain comprehensive general liability insurance
against claims for personal injury, death or property damage occurring upon, in
or about the Mortgaged Property, which insurance shall afford protection of not
less than $1,000,000 with respect to injury or death to a single person, of not
less than $1,000,000 with respect to injuries or deaths from any one accident,
and of not less than $1,000,000 with respect to property damage.
ARTICLE SIX: CONDEMNATION
If all or any part of the Mortgaged Property hereunder be taken or
damaged by the exercise of the power of eminent domain, Mortgagor may contest
the same in good faith so long as there is no Default under this Mortgage, the
Note or the Loan Documents, but the award for any property so taken is hereby
assigned to Mortgagee, and Mortgagee, upon such award becoming final, is hereby
authorized, in the name of Mortgagor, to execute and deliver acquaintances for,
and release of, any such award and to collect and apply the proceeds to the
payment of the Secured Obligations (such application to be to such portions of
the Secured Obligations, and in such order, as Mortgagee may elect), whether
matured or unmatured, and the remainder, if any, shall be paid to Mortgagor or
such other party or parties as may be legally entitled thereto. In the event of
a partial condemnation, Mortgagor covenants and agrees to commence promptly the
restoration and repair of the remaining Mortgaged Property to as nearly as
possible the same condition as existed prior to such taking, and to prosecute
diligently such restoration and repair to completion. Mortgagor will submit
plans for such restoration and repair to Mortgagee for Mortgagee's written
approval prior to the commencement of such restoration and repair.
ARTICLE SEVEN: DEFAULT AND REMEDIES
7.1 Default. Failure of Mortgagor to comply with any of the
covenants and requirements of this Mortgage, within thirty (30) days after
receipt of written notification thereof, or with any of the covenants and
requirements of the Note or the Loan Documents within the time period specified
therein (including any applicable cure period), shall constitute a "Default"
hereunder.
7.2 Remedies Upon a Default. At any time after a Default has
occurred, the whole of the Note shall become due at Mortgagee's option forthwith
or thereafter at the continuing option of Mortgagee, and this Mortgage shall
remain in force, and Mortgagee may exercise any right, power or remedy permitted
to it by law or by contract, and in particular, without limiting the generality
of the foregoing, Mortgagee shall have the absolute right, at its option and
election, to pursue one or more of the following rights:
(a) Mortgagee shall be entitled thereupon or thereafter without
notice or demand, to the extent permitted by the laws of the State of
Illinois, (i) to institute suit at law or in equity to enforce the
rights of Mortgagee and (ii) to enforce, at Mortgagee's continuing
option, payment of all sums secured hereby by action at law or by suit
in equity to foreclose this Mortgage, either or both, concurrently or
otherwise; and one action or suit shall not xxxxx or be a bar to or
waiver of Mortgagee's right to institute or maintain the other,
provided Mortgagee shall have only one payment and satisfaction of the
Secured Obligations;
(b) Mortgagee shall have the right from time to time to take
action to recover any portion of the Secured Obligations, as the same
becomes due, without regard to whether or not any other portion of the
Secured Obligations shall be due, and without prejudice to the right
of Mortgagee thereafter to bring an action of foreclosure, or any
other action, with respect to any Default existing at the time such
earlier action was commenced.
7.3 Right of Mortgagee to Credit Sale. Upon any sale or sales made
hereunder, Mortgagee may bid for and acquire the Mortgaged Property or any part
thereof and, in lieu of paying cash therefor, may make settlement for the
purchase price by crediting upon the Secured Obligations the net sales price
after deducting therefrom the expenses of sale and the cost of the action and
any other sums which Mortgagee is authorized to deduct under this Mortgage, and,
in such event, this Mortgage, the Note, the Loan Documents and any other
evidence of Secured Obligations may be presented to the person or persons
conducting the sale in order that the amount so used or applied may be credited
upon the Secured Obligations as having been paid.
7.4 Entry by Mortgagee. During the continuance of any Default,
Mortgagee personally, or by its agents or attorneys, may enter into and upon and
take possession of all or any part of the Mortgaged Property, and each and every
part thereof, and may exclude Mortgagor, its agents and servants wholly
therefrom and, having and holding the same, may use, occupy and control the
Mortgaged Property or any part thereof, either personally or by its
superintendents, managers, agents, servants, attorneys or receivers.
7.5 Remedies Cumulative. No remedy conferred upon or reserved to
Mortgagee herein or in the Note or the Loan Documents is intended to be
exclusive of any other remedy or remedies, and each and every such remedy shall
be cumulative and shall be in addition to every remedy given to Mortgagee or now
or hereafter existing at law or in equity or by statute. No delay or omission
by Mortgagee in the exercise of any right or power accruing upon any Default
shall impair any such right or power, or shall be construed to be a waiver of
any such Default or any acquiescence therein; and every power and remedy given
in this Mortgage, the Note, or the Loan Documents, to Mortgagee may be exercised
from time to time as often as may be deemed expedient by Mortgagee. Nothing in
this Mortgage, the Note, or the Loan Documents shall affect the obligation of
Mortgagor to pay the Secured Obligations in the manner and at the time and place
therein respectively expressed. In the event of foreclosure, Mortgagor shall be
fully liable for any deficiency.
7.6 No Waiver. Any failure by Mortgagee to insist upon the strict
performance by Mortgagor of any of the terms and provisions of this Mortgage,
the Note, or the Loan Documents shall not be deemed to be a waiver of any of the
terms and provisions of this Mortgage, the Note, or the Loan Documents, and
Mortgagee, notwithstanding any such failure, shall have the right thereafter to
insist upon the strict performance by Mortgagor of any and all of the terms and
provisions of this Mortgage, the Note or the Loan Documents to be performed by
Mortgagor; and Mortgagee may resort for the payment of the Secured Obligations
to the Mortgaged Property or to any other security therefor held by Mortgagee in
such order and manner as Mortgagee may elect.
7.7 Waiver of Redemption and Other Rights. To the extent permitted
by the laws of the State of Illinois, Mortgagor will not at any time (a) insist
upon, or plead, or in any manner whatever claim or take any benefit or advantage
of, any stay or extension or moratorium law, any exemption from execution or
sale of the Mortgaged Property or any part thereof, wherever enacted, now or at
any time hereafter in force, which may affect the covenants and terms of
performance of this Mortgage, nor (b) claim, take or insist upon any benefit or
advantage of any law now or hereafter in force providing for the valuation or
appraisal of the Mortgaged Property, or any part thereof, prior to any sale or
sales thereof which may be made pursuant to any provision herein, or pursuant to
the decree, judgment or order of any court of competent jurisdiction, nor (c)
after any such sale or sales, claim or exercise any right under any laws
wherever enacted, now or at any time hereafter in force, to redeem the property
so sold or any part thereof. Mortgagor, to the extent permitted by the laws of
the State of Illinois, hereby expressly waives all benefit or advantage of any
such law or laws, and covenants not to hinder, delay or impede the execution of
any power herein granted or delegated to Mortgagee, but to suffer and permit the
execution of every power as though no such law or laws had been made or enacted.
ARTICLE EIGHT: MISCELLANEOUS
8.1 Protection of Mortgagee's Security. Mortgagee may, at its
option, after prior notice is given to Mortgagor by Mortgagee if feasible in
Mortgagee=s reasonable judgment under the circumstances, and without waiving its
right to accelerate the Secured Obligations or any part thereof and to foreclose
the same, pay either before or after delinquency any or all of those certain
obligations required by the terms hereof to be paid by Mortgagor for the
protection of the Mortgage security or for the collection of any of the Secured
Obligations if not paid by Mortgagor at least two (2) days prior to the due date
thereof. The good faith decision of Mortgagee upon any question of fact,
necessity or expediency shall be binding on Mortgagor. All sums so advanced or
paid by Mortgagee shall become Secured Obligations and become an integral part
thereof, subject in all respects to the terms, conditions and covenants of this
Mortgage, as fully and to the same extent as though a part of the original
indebtedness evidenced by the Note and secured by this Mortgage, excepting,
however, that said sums shall be repaid to Mortgagee upon demand by Mortgagee to
Mortgagor for said payment.
8.2 Successors and Assigns. All of the grants, covenants, terms,
provisions and conditions herein shall run with the Mortgaged Property, shall,
subject to the provisions of Section 4 of this Mortgage, apply to and bind the
successors and assigns of Mortgagor, and shall inure to the benefit of the
successors and assigns of Mortgagor and Mortgagee.
8.3 Notices. Except as may otherwise be required by applicable law,
all notices, approvals, waivers, consents, demands, requests and declarations
given or required to be given by either party hereto to the other party shall be
in writing and shall be deemed to have been effectively given when delivered
personally or sent by United States certified or registered mail, return receipt
requested, postage prepaid, to the Mortgagor or the Mortgagee, as the case may
be, at their respective address set forth in the preamble of this Mortgage,
and/or to such other (or additional) address(es) requested by a notice given in
accordance with this Section.
8.4 Corrections and Future Acts. Mortgagor will, upon the reasonable
request of Mortgagee, promptly correct any defect, error, or omission which may
be discovered in the contents of this Mortgage or in the execution or
acknowledgment hereof, and will execute, acknowledge, and deliver such further
instruments and do such further acts as may be necessary or as may be reasonably
requested by Mortgagee to carry out more effectively the purposes of this
Mortgage, to subject to the lien and security interest hereby created any of
Mortgagor's properties, rights, or interest covered or intended to be covered
hereby, and to perfect and maintain such lien and security interest.
8.5 Governing Law. This Mortgage shall be governed by and enforced
according to the laws of the State of Illinois, without reference to the
conflicts of laws principles thereof.
8.6 Severability. If any provision or clause of this Mortgage shall
be held or deemed to be or shall, in fact, be inoperative, invalid or
unenforceable as applied in any particular case or in all cases because it
conflicts with any provisions of any constitution or statute or rule of public
policy, or for any other reason, such determination shall not affect in any way
any other provision or clause herein which can be given effect without the
inoperative, invalid or unenforceable provision or clause.
8.7 Amendments. No alteration or amendment of this Mortgage shall be
effective unless in writing signed by the parties sought to be charged or bound
thereby.
8.8 Counterparts. This Mortgage may be executed in multiple copies,
each of which when so executed and acknowledged shall be deemed to be an
original.
IN WITNESS WHEREOF, Mortgagor has executed and delivered this Mortgage
as of the day and year first above written.
ALLIANCE FARMS COOPERATIVE ASSOCIATION, a Colorado
cooperative association
By:
Name:
Title:
MORTGAGOR
STATE OF )
) SS.
COUNTY OF )
I, the undersigned, a Notary Public, in and for said County, in the State
aforesaid, do hereby certify, that , personally known to
me to be the of said corporation, whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that as an officer of the corporation, he signed and delivered the said
instrument, pursuant to the authority given by the Board of Directors of said
corporation, as their free and voluntary act, and as the free and voluntary act
and deed of said corporation, for the uses and purposes therein set forth.
Given under my hand and notarial seal, this day of
, 1996.
NOTARY PUBLIC
EXHIBIT A: THE LAND
A tract of land located in Xxxxxxx 0, Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx of the
Third Principal Meridian located in Xxxxx County, Illinois and more
particularly described as follows:
Commencing at the Southeast corner of the Northeast Quarter of said
Section 1, thence in a northerly direction along the east section line
of Section 1, a distance of 1,970 feet to a point, thence westerly
parallel with the South line of said Section 1, a distance of 1,000
feet to a point, thence southerly parallel with the east line of said
Section 1, a distance of 1,970 feet to the South line of the Northeast
Quarter of said Section 1, thence easterly along said quarter section
line a distance of 1,000 feet to the point of beginning, containing
45.25 acres, more or less.
