MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
Exhibit 4.3
Drafted by
and when recorded
mail
to:
Xxxx
Xxxxxxxx, Esq.
Xxxxxxx
Xxxxxxxx Xxxxxx LLP
0000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx
Xxxx, Xxxxxxxx 00000
MORTGAGE,
SECURITY AGREEMENT,
ASSIGNMENT
OF LEASES AND RENTS
AND
FIXTURE FILING
(secures
future advances and future obligations, but Maximum Amount Secured, as defined
in and subject to the provisions of Section 1 below, equals
$300,000)
This
Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing
(the "Mortgage") is given
as of November 7, 2008, by MGP INGREDIENTS, INC., a Kansas corporation (the
"Borrower"),
with an office located at Cray Business Plaza, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxx 00000, to COMMERCE BANK, N.A., a national banking association, as Agent
for the Banks from time to time party to the Credit Agreement referred to below
(in such capacity, the "Agent"), with an
office located at 0000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000.
WHEREAS,
Borrower is the owner of the real property and improvements thereon legally
described on Exhibit A attached hereto;
WHEREAS,
Borrower has incurred and may hereafter incur indebtedness under the Credit
Agreement, dated as of May 5, 2008, among Borrower, certain other borrower(s)
thereunder (collectively, whether one or more, the "Other Borrower"),
Commerce Bank, N.A., as Agent, Issuing Bank and Swingline Lender, and the Banks
party thereto, as amended by a First Amendment to Credit Agreement dated as of
September 3, 2008, a letter agreement dated October 31, 2008, and a
Second Amendment to Credit Agreement dated on or about the date hereof (as so
amended and as otherwise amended, renewed, restated, replaced, consolidated or
otherwise modified from time to time, the "Credit Agreement"),
pursuant to which the Banks have agreed or may elect, in each case subject to
the terms and conditions thereof and as of the date hereof, to extend credit to
or for the benefit of Borrower and/or Other Borrower in an aggregate outstanding
principal amount not to exceed $55,000,000 at any time;
WHEREAS,
Borrower's and Other Borrower's obligations to the Banks under the Credit
Agreement are evidenced by the following promissory notes: (a) an Amended and
Restated Revolving Credit Note, dated on or about September 3, 2008, from
Borrower and Other Borrower, as makers, to Commerce Bank, N.A., as payee, in the
stated principal amount of $21,175,000; (b) an Amended and Restated Revolving
Credit Note, dated on or about September 3, 2008, from Borrower and Other
Borrower, as makers, to BMO Capital Markets Financing, Inc., as payee, in the
stated principal amount of $16,912,500; (c) an Amended and Restated Revolving
Credit Note, dated on or about September 3, 2008, from Borrower and Other
Borrower, as makers, to National City Bank, as payee, in the stated principal
amount of $16,912,500; and (d) a Swingline Note, dated on or about May 5, 2008,
from Borrower and Other Borrower, as makers, to Commerce Bank, N.A., as payee,
in the stated principal amount of $5,000,000;
WHEREAS,
the foregoing promissory notes and any other promissory notes issued on or after
the date hereof under the Credit Agreement – whether payable to the above
specifically identified Banks or their respective permitted assignees under the
Credit Agreement or to other lenders who may hereafter become Banks under the
Credit Agreement or their respective permitted assignees under the Credit
Agreement – as any of the foregoing may be amended, renewed, restated, replaced,
consolidated or otherwise modified from time to time, are collectively referred
to herein as the "Notes" and are
individually referred to herein as a "Note";
WHEREAS,
Borrower's and Other Borrower's obligations under the Credit Agreement, the
Notes, this Mortgage and any other Credit Documents (as defined in the Credit
Agreement), whether monetary, nonmonetary, direct, indirect, acquired, joint,
several, joint and several, existing, future, contingent or otherwise, and any
replacements, renewals, extensions and other modifications of any of the above,
together with all principal, premium, interest, fees, expenses and other amounts
and charges relating thereto, and any amounts expended by or on behalf of Agent
or any Bank for the protection and preservation of the mortgage lien and
security interest granted herein, are hereinafter sometimes collectively called
the "Obligations";
and
WHEREAS,
any agreements, documents or instruments evidencing, securing or otherwise
relating to any of the Obligations (including, without limitation, any of the
Credit Documents, as defined in the Credit Agreement), and any amendments,
restatements, replacements, consolidations and other modifications of any of the
foregoing are hereinafter sometimes collectively called the "Credit
Documents."
NOW,
THEREFORE, to secure the full and prompt payment and performance of the
Obligations, Borrower hereby mortgages and warrants to Agent, on behalf of the
Banks, and grants to Agent on behalf of the Banks, a security interest in, all
of Borrower's right, title and interest in and to the following property,
whether such property or interest therein is now owned or existing or hereafter
acquired or arising (collectively, the "Property"): (a) all
of the tracts, parcels or other units of land described in Exhibit A attached
hereto (the "Premises"); (b) all
of the buildings, structures and other improvements now or hereafter situated on
the Premises, together with any alterations, additions and improvements thereto
and all restorations and replacements thereof made from time to time
(collectively, the "Building"); (c) all
machinery, apparatus, equipment and fixtures of every kind and nature whatsoever
now or hereafter located in, on or about the Building or upon the Premises, or
attached to or used or usable in connection with the operation or maintenance of
the Premises or the Building or in connection with any construction being
conducted on the Premises, including, but not limited to, all heating, lighting
and power equipment, engines, plumbing, electrical, mechanical, refrigeration,
ventilating and air-conditioning equipment and apparatus, elevators, cranes,
fittings, tools, ducts and compressors (collectively, the "Building Equipment"),
which Building Equipment shall, to the fullest extent permitted by law, be
deemed to constitute fixtures and part of the real property encumbered by this
Mortgage; (d)
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all
easements, tenements, hereditaments, appurtenances, rights and rights of way,
public or private, pertaining, belonging or otherwise relating to the Premises
or the Building; (e) all insurance proceeds and any judgments, settlements,
awards and other payments, including interest thereon, which may be made in
respect of the Property as a result of damage to or destruction of the Property,
the exercise of the right of condemnation or eminent domain over any interest in
the Property, the closing of, or the alteration of the grade of, any street on
or adjoining the Premises, or any other injury to or decrease in the value of
the Property; (f) all franchises, permits, licenses and other rights therein
respecting the use, occupation or operation of the Property or the activities
conducted thereon or thereabout; (g) all rents, income and other benefits
arising out of or otherwise related to the Property and all leases on or
affecting the Property, and any security deposits, contract rights, general
intangibles, actions, rights of action, and unearned insurance premiums relating
to such leases or the Property; and (h) all accessions to, substitutes for, and
all modifications, replacements, renewals, products and proceeds of any of the
foregoing; provided,
however, that the Property shall not include any Excluded GE Equipment
Collateral (as defined in the Credit Agreement).
Borrower
covenants, represents and warrants to Agent as follows:
1. Indebtedness
Secured. This Mortgage has been given and is intended to
secure the full and prompt payment and performance of the Obligations and
constitutes a future advance mortgage under K.S.A. §58-2336. This
Mortgage secures future advances from the Banks to Borrower or Other Borrower
and other future obligations of Borrower and/or Other Borrower to the Banks and
the Agent pursuant to the Credit Documents; provided,
however, that,
notwithstanding anything to the contrary in this Mortgage, (i) the maximum
aggregate principal balance secured hereby shall not exceed $300,000 (the
"Maximum
Amount Secured"),
and (ii) payments made on account of the obligations secured hereby or any
portion thereof, whether in the ordinary course, as prepayments or otherwise,
shall not reduce the Maximum Amount Secured unless the aggregate principal
amount of obligations secured hereby is less than the Maximum Amount Secured.
The priority of the lien hereunder securing such future advances and future
obligations shall relate back to the date this Mortgage was
recorded. In addition, the Mortgage shall secure unpaid balances of
advances made by Agent or any Bank with respect to the Property, for the payment
of Impositions, as hereinafter defined, insurance premiums and costs incurred
for the protection of the Property and any charges, expenses and fees,
including, without limitation, attorneys' fees, which, by the terms hereof,
shall be added to and increase the Obligations. Borrower agrees that
all of the duties and obligations imposed on it hereunder, whether absolute or
contingent, due or to become due, are for the reasonable protection of the lien
of this Mortgage. This Mortgage shall remain in full force and effect
with respect to all of the Property until all Obligations shall have been paid
and performed in full. If the Obligations are paid and performed in
accordance with the terms of the applicable Credit Documents, including, without
limitation, the observance of all the agreements contained in this Mortgage,
this Mortgage shall be released at the expense of Borrower. Borrower
acknowledges that nothing in this Section 1 obligates Agent or any Bank to make
future advances to Borrower or any other Person.
2. Title to Property and Other
Representations and Warranties. Borrower represents, warrants
and covenants to Agent that: (a) Borrower owns the Premises and the
improvements thereon in fee simple absolute and has good and marketable title to
the remainder of the Property; (b) the Property is free of all liens,
encumbrances, adverse claims and other defects of title whatsoever, except for
Permitted Liens (as defined in the Credit Agreement) and the matters set forth
on Exhibit B hereto (collectively, together with Permitted Liens as defined in
the Credit Agreement, "Permitted Liens");
(c) Borrower does hereby and shall forever warrant and defend its title to and
interest in the Property (and the validity and priority of the lien of this
Mortgage) to Agent against all claims and demands whatsoever of any Person; (d)
the Building presently on the Premises complies in all material respects with
all applicable zoning and building codes, ordinances and regulations, and such
compliance is based solely upon Borrower's owning
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the
Property and not upon Borrower's title to or interest in any other property; (e)
any Building hereafter constructed on the Premises shall comply in all material
respects with all applicable zoning and building codes, ordinances and
regulations and shall lie wholly within the boundaries of the Premises; (f)
there are no actions, suits or proceedings pending or, to Borrower's knowledge,
threatened against or affecting the Property; and (g) Borrower has the good and
unrestricted right, full power and lawful authority to subject the Property to
this Mortgage.
3. Maintenance. Borrower
shall maintain the Property in good order, condition and repair, excepting
ordinary wear and tear. Borrower shall make, as and when the same
shall become necessary, all structural and non-structural repairs, whether
exterior or interior, ordinary or extraordinary, foreseen or
unforeseen. Borrower shall not commit or suffer any waste of the
Property. Borrower shall not construct any new or additional
buildings on the Premises without the prior written consent of Agent, which
consent shall not be unreasonably withheld so long as no Default or Event of
Default exists. Notwithstanding the foregoing, if Borrower is
required by applicable law to undertake any such alterations to the Building or
the Building Equipment, Borrower may do so without obtaining Agent's consent
thereto. In such event, Borrower shall promptly give Agent written
notice of any such legal requirement and, prior to undertaking such alterations,
shall notify Agent in writing of any such alterations that Borrower proposes to
undertake. Agent and each of the Banks, and their respective agents,
contractors and representatives, may enter upon and inspect the Property at all
reasonable times until this Mortgage is released. Without limiting
the generality of the foregoing, Agent, each of the Banks, and their respective
agents, contractors and representatives, may from time to time enter upon the
Property and conduct upon the Property inspections and tests to determine the
extent to which any hazardous substances, wastes or other environmentally
unsound materials have been placed or discharged upon or otherwise affect the
Property, all at the sole expense of Borrower.
4. Restoration. If
any of the improvements or equipment comprising the Property is damaged or
destroyed, in whole or in part, by fire or other casualty (whether or not
covered by insurance), or by any taking in condemnation proceedings or the
exercise of any right of eminent domain, Borrower shall promptly restore,
replace or rebuild the same to as nearly as possible the value, quality and
condition they were in immediately prior to such fire or other casualty or
taking, with such alterations or changes as may be approved in writing by Agent,
which approval shall not be unreasonably withheld; provided, however, that
Borrower shall be under no duty to so restore, rebuild or replace such property
to the extent that Agent receives and applies any insurance, condemnation or
similar proceeds relating to such casualty to satisfy any part of the
Obligations. Borrower shall give prompt notice to Agent of any
material damage to the Property.
5. Compliance with Laws; Use of
Property. Borrower shall comply in all material respects with
all present and future laws, statutes, ordinances, rules, regulations and other
requirements (including, without limitation, applicable zoning and building
requirements) of all governmental and quasi-governmental authorities whatsoever
having jurisdiction with respect to the Property. Borrower shall
promptly perform and observe all of the terms, covenants and conditions of all
instruments of record affecting the Property, non-compliance with which may
affect the security of this Mortgage, or which shall impose any duty or
obligation upon Borrower or any tenant or other occupant of the Premises, and
Borrower shall do all things necessary to preserve intact and unimpaired any and
all easements, appurtenances and other interests and rights in favor of or
constituting any portion of the Property. Borrower shall not use or
permit the use of the Property in any manner which would tend to impair the
value of the Property or materially increase the risk of fire or other
casualty.
6. Impositions. Borrower
shall pay when the same shall become due and payable all real estate taxes,
assessments, water and sewer rates and charges, license fees and all other
governmental levies and charges of every kind and nature whatsoever, general and
special, ordinary and extraordinary,
4
foreseen
and unforeseen, which shall be assessed, levied, confirmed, imposed or become a
lien upon or against the Property or which shall become payable with respect
thereto (collectively, "Impositions"). Notwithstanding
the foregoing, Borrower may contest any Imposition by appropriate and timely
proceedings, provided that on or before the due date for payment of such
Imposition Borrower shall establish an escrow or other provision for payment of
such Imposition satisfactory to Agent in an amount estimated by Agent to be
adequate to pay such Imposition and any interest or penalties that may result
from its nonpayment on the due date. In all such cases of contest,
Borrower shall pay the contested Imposition within 10 days after the dismissal
of said proceedings or the final and unappealable determination of Borrower's or
the Property's liability therefor, as the case may be. So long as any
Event of Default exists, however, Borrower shall, upon demand by Agent, pay the
whole of any assessment for local improvement which may be payable in
installments, notwithstanding that such installments may not be due and payable
at the time of such demand by Agent. Borrower shall deliver to Agent,
within 10 days after the request of Agent therefor, the original or a photocopy
of the official receipt evidencing such payment or other proof of payment
satisfactory to Agent.
7. Insurance. (a) Borrower,
at Borrower's sole expense, shall insure the Property for the benefit of Agent
against loss or damage thereto and shall keep in effect, for Agent's benefit,
comprehensive general public liability insurance against claims for bodily
injury, death or property damage. The policies of insurance required
by this Section shall be in companies, forms and amounts, and for such periods
and with such deductibles, as shall be customary for property similar in use,
location and condition to the Property, and shall insure the respective
interests of Borrower and Agent. The insurance proceeds from all such
policies of insurance (other than the proceeds in respect of any liability
insurance policy) shall be payable to Agent pursuant to a noncontributing first
mortgagee endorsement satisfactory in form and substance to
Agent. Upon request by Agent, Borrower shall promptly furnish
evidence of satisfactory insurance on the Property and that Borrower has
complied with the other provisions of this Section. In addition to
the other policies of insurance required hereunder, Borrower shall cause a title
insurer reasonably acceptable to Agent to insure, in favor of Agent, Borrower's
ownership of, and Agent's first priority lien on, the Property, subject only to
Permitted Liens, in an amount equal to not less than $300,000 in such form, and
with such affirmative coverage and endorsements as Agent may reasonably
request.
(b) Borrower
irrevocably makes, constitutes and appoints Agent (and all officers, employees
or agents designated by Agent) as Borrower's true and lawful attorney-in-fact
and agent, with full power of substitution, for the purpose of making and
adjusting claims the policies of insurance referred to herein, endorsing the
name of Borrower on any check, draft, instrument or other item or payment for
the proceeds of such policies of insurance and for making all determinations and
decisions with respect to such policies of insurance or to pay any premium in
whole or in part relating thereto. Agent, without waiving or
releasing any obligation or default by Borrower hereunder, may (but shall be
under no obligation to do so) at any time maintain such action with respect
thereto which Agent deems advisable. All sums disbursed by Agent in
connection therewith, including attorneys' fees, court costs, expenses and other
charges relating thereto, shall be payable, on demand, by Borrower to Agent and
shall be additional Obligations hereunder secured by this
Mortgage. Notwithstanding the foregoing, so long as no Default or
Event of Default exists, Borrower may make and settle any insurance claims
relating to the Property provided that Borrower first obtains Agent's written
consent thereto, which consent shall not be unreasonably withheld.
(c) All
proceeds of the insurance obtained by Borrower hereunder (other than those
relating to any liability insurance policy), shall be paid to Agent, and Agent
may deduct from such proceeds any expenses, including, without limitation, legal
fees, incurred by Agent in connection with adjusting and obtaining such proceeds
(the balance remaining after such deduction being hereinafter referred to as the
"Net Insurance
Proceeds"). If an Event Default exists at the time Agent receives the
Net
5
Insurance
Proceeds, Agent may apply the Net Insurance Proceeds in reduction or
satisfaction of all or any part of the Obligations, whether then matured or not,
in which event Borrower shall be relieved of its obligation under Sections 3 and
4 above to maintain and restore the Property relating to such proceeds to the
extent that Agent so applies the Net Insurance Proceeds. If no Event
of Default exits at such time (or if an Event of Default exists and Agent elects
not to apply the Net Insurance Proceeds as provided in the previous sentence),
Agent shall release the Net Insurance Proceeds to Borrower; provided, however, that, if
the amount of the Net Insurance Proceeds exceeds $50,000, Agent may condition
the release of all or any part of the Net Insurance Proceeds on such escrow or
other disbursement conditions as Agent may reasonably require to ensure that
Borrower uses the Net Insurance Proceeds to maintain and the restore the
Property as required under this Agreement and to ensure that the Property
remains free of all mechanics' and other liens except for Permitted
Liens.
(d) In
the event of a foreclosure under this Mortgage, the purchaser of the Property
shall succeed to all of the rights of Borrower, including any right to unearned
premiums, in and to all policies of insurance which Borrower is required to
maintain under this Section and to all proceeds of such insurance.
8.
Deposits for
Impositions and Insurance. Upon notice from Agent (which
notice shall not be given unless an Event of Default exists), Borrower shall
deposit with Agent on the first day of each month an amount equal to one-twelfth
of (i) the aggregate annual payments for the Impositions, and (ii) the annual
insurance premiums on the policies of insurance required to be obtained and kept
in force by Borrower under this Mortgage. In addition, upon notice
from Agent (which notice shall not be given unless an Event of Default exists),
Borrower shall deposit with Agent such sum of money which, together with such
monthly installments, shall be sufficient to pay all the Impositions and
insurance premiums at least 30 days prior to the due date thereof. If
the amounts of any Impositions are not ascertainable at the time any deposit is
required to be made, the deposit shall be made on the basis of the amounts of
the Impositions for the prior tax year and, upon the amounts of the Impositions
being fixed for the then current year, Borrower shall, upon notice from Agent,
deposit any deficiency with Agent. If the amount of the insurance
premiums is not ascertainable at the time any deposit is required to be made,
the deposit shall be made on the basis of the amount of the insurance premiums
for the prior year of the policy or policies, and, upon the amount of the
insurance premiums being fixed for the then current year of the policy or
policies, Borrower shall, upon notice from Agent, deposit any deficiency with
Agent. If on a date 30 days prior to the due date for the payment of
any of the Impositions or the insurance premiums there shall be insufficient
funds on deposit with Agent to pay the same, Borrower shall, upon notice from
Agent, forthwith make a deposit with Agent in the amount of such
deficiency. The funds so deposited with Agent shall be held by Agent
without interest, and may be commingled with other funds of Agent, and provided
that an Event of Default exists, such funds shall be applied in payment of the
Impositions and insurance premiums when due to the extent that Borrower shall
have deposited funds with Agent for such purpose. If an Event of
Default exists, the funds deposited with Agent may, at the option of Agent, be
retained and applied toward the payment of any or all of the Obligations, but no
such application shall be deemed to have been made by operation of law or
otherwise until actually made by Agent. Borrower shall furnish Agent
with a xxxx for each of the Impositions and insurance premiums and such other
documents necessary for their payment at least 30 days prior to the date they
first become due. Upon an assignment of this Mortgage prior to any
default hereunder by Borrower, Agent shall have the right and obligation to pay
over the balance of such deposits in its possession to the assignee, and
thereupon Agent shall be completely released from all liability with respect to
such deposits and Borrower shall look solely to the assignee in reference
thereto. The provisions of the preceding sentence shall apply to each
and every assignment or transfer of such deposits to a new
assignee.
9. Condemnation. (a) Borrower
shall give immediate notice to Agent upon Borrower's learning of (i) any
interest on the part of any Person possessing or who has expressed the intention
to
6
possess
the power of eminent domain to purchase or otherwise acquire the Property, or
(ii) the commencement of any action or proceeding to take the Property by
exercise of the right of condemnation or eminent domain or of any action or
proceeding to close or to alter the grade of any street on or adjoining the
Premises. Agent may participate in any such actions or proceedings in
the name of Agent or, whenever necessary, in the name of Borrower, and Borrower
shall deliver to Agent such instruments as Agent shall request to permit such
participation. Borrower shall not settle any such action or
proceeding, whether by voluntary sale, stipulation or otherwise, or agree to
accept any award or payment without the prior written consent of Agent, which
consent shall not be unreasonably withheld so long as no Default or Event of
Default exists. The total of all amounts awarded or allowed with
respect to all right, title and interest in and to the Property or the portion
or portions thereof taken or affected by such condemnation or eminent domain
proceeding and any interest thereon (herein collectively called the "Award") is hereby
assigned to and shall be paid upon receipt thereof to Agent and the amount
received shall be retained and applied as provided in Section 9(b)
below.
(b) If
an Event of Default exists at the time Agent receives the Award, Agent may apply
the Award in reduction or satisfaction of all or any part of the Obligations,
whether then matured or not. If no Event of Default exits at such
time (or if an Event of Default exists and Agent elects not to apply the Award
as provided in the previous sentence), Agent shall release the Award to
Borrower; provided,
however, that, if the amount of the Award exceeds $50,000, Agent may
condition the release of all or any part of the Award on such escrow or other
disbursement conditions as Agent may reasonably require to ensure that, in the
case of a taking of all or substantially all of the Property, Buyer acquires
replacement real property that is subject to a mortgage lien in favor of Agent
subject to no lien or other encumbrance other than Permitted Liens and, in the
case of any other taking, Borrower uses the Award to restore the Property
remaining after such taking and to ensure that such Property remains free of all
mechanics' and other liens except for Permitted Liens. In no event
shall Agent be required to release this Mortgage until the Obligations are fully
paid and performed nor shall Agent be required to release from the lien of this
Mortgage any portion of the Property so taken until Agent receives the Award for
the portion so taken.
10. Assignment of Rents and
Leases. (a) Borrower hereby presently assigns to
Agent all of Borrower's right, title and interest in and to any Leases, as
defined hereinafter, with respect to the Property, and all rents, issues and
profits of the Property. "Lease" means every
lease or occupancy agreement for the use or hire of all or any portion of the
Property which shall be in effect on the date hereof, or which shall hereafter
be entered into, and by which Borrower is a lessor or the like, and any
renewals, extensions or other modifications thereof. Borrower grants
to Agent, with or without Agent or any other Person (including, without
limitation, a receiver) taking possession of the Property, the right to give
notice to the tenants of this assignment, to collect rents, issues and profits
from the tenants and to enter onto the Property for the purpose of collecting
the same and to let the Property and to apply such rents, issues and profits,
after payment of all charges and expenses relating to the Property, to the
Obligations. This assignment shall be an absolute assignment, subject
to the license herein granted to Borrower and Borrower's obligations hereunder,
and shall continue in effect until the Obligations are fully paid and
performed. Agent hereby grants a revocable license to Borrower to
collect and use such rents, issues and profits; provided, however, that the
foregoing license shall be automatically revoked, without any action on Agent's
part, upon the occurrence of an Event of Default. Notwithstanding any
law to the contrary, if there is an Event of Default, and if there is any
applicable law requiring Agent to take possession of the Property (or some
action equivalent thereto, such as securing the appointment of a receiver) in
order for Agent to "perfect" or otherwise "activate" its rights and remedies as
set forth herein, then Borrower waives all benefits of such laws and agrees that
such laws shall be fully satisfied, without any action on Agent's part, solely
by the occurrence of such Event of Default. If, notwithstanding such
waiver by Borrower, such laws require the undertaking of some affirmative act by
Agent, Borrower agrees that such laws shall be fully satisfied solely by Agent
giving Borrower notice, written or oral, that such
7
Event of
Default has occurred and that Agent intends to enforce its rights in any Leases
and/or any rents, issues and profits assigned herein.
(b) Borrower
shall, from time to time upon request by Agent, execute, acknowledge and deliver
to Agent, in form and substance satisfactory to Agent, separate assignments of
any Leases in order to further evidence the foregoing
assignment. Agent shall not be obligated to perform any obligation to
be performed by Borrower under any Lease or other agreement affecting the
Property, and Borrower hereby agrees to indemnify Agent for, and hold Agent
harmless from, any and all liability and expenses arising from any such Lease or
other agreement or any assignments thereof, and no assignment of any such Lease
or other agreement shall place the responsibility for the control, care,
management or repair of the Property upon Agent, nor make Agent liable for any
negligence or other tortious conduct, whether by Agent or any other Person, with
respect to the management, operation, upkeep, repair or control of the Property
resulting in injury, death, property or other damage or loss of any nature
whatsoever.
(c) Borrower
shall not cancel, amend or otherwise modify the terms and conditions of any
Lease without obtaining Agent's prior consent; nor shall Borrower accept
payments of rent or the like more than one month in advance without obtaining
Agent's prior consent.
(d) Agent
may exercise its rights from time to time under this Section 10 without first
commencing foreclosure proceedings against the Property if it so
elects. Any such election by Agent to exercise its rights from time
to time under this Section 10 shall not prohibit Agent from simultaneously or
thereafter foreclosing upon the Property or exercising any other rights
available to Agent hereunder or at law.
11. Agent's Right to Perform
Borrower's Covenants. If Borrower shall fail promptly and
fully to pay, perform or observe any of the Obligations, then Agent may, at its
option, but without any obligation to do so, and without waiving or releasing
Borrower from any of the Obligations, pay any Obligation or perform any
Obligation or take such other action as Agent deems necessary or desirable in
order to cause such Obligation to be paid, performed or observed, as the case
may be. Borrower hereby grants to Agent, and agrees that Agent shall
have, the absolute and immediate right to enter in and upon the Property to such
extent and as often as Agent, in its discretion, deems necessary or desirable
for such purpose. Agent may pay and expend such sums of money as
Agent, in its discretion, deems necessary for any such purpose, and Borrower
hereby agrees to pay to Agent, on demand, all such sums so paid or expended by
Agent, together with interest thereon from the date of each such payment or
expenditure at the rate (the "Default Rate") which
is the lesser of (i) the default rate of interest specified in Section 3.1(b) of
the Credit Agreement (or, if there any more than one such default rate, the
highest default rate), or (ii) the maximum interest rate permitted by
law. Any interest paid under this Section in excess of the maximum
interest rate permitted by law shall be deemed payment in reduction of the
principal amount of the Obligations and the excess, if any, shall be refunded to
Borrower without interest. All sums so paid or expended by Agent, and
the interest thereon, shall be added to the Obligations and shall be secured by
the lien of this Mortgage.
12. No Claims Against
Agent. Nothing contained in this Mortgage shall constitute any
consent or request by Agent, expressed or implied, for the performance of any
labor or services or the furnishing of any materials or other property in
respect of the Property, or be construed to permit the making of any claim
against Agent in respect of labor or services or the furnishing of any materials
or other property or any claim that any lien based on the performance of such
labor or services or the furnishing of any such materials or other property is
prior to the lien of this Mortgage.
8
13. Liens. This
Mortgage is and shall be maintained as a valid first mortgage lien on the
Property subject only to Permitted Liens. Borrower shall not,
directly or indirectly, create or suffer or permit to be created, or to stand,
against the Property or against the rents, issues and profits therefrom, any
lien, charge, mortgage, deed of trust, adverse claim or other encumbrance other
than Permitted Liens; provided, however, that
nothing contained in this Section shall require Borrower to pay any real estate
taxes or other Impositions prior to the time when same are required to be paid
under this Mortgage. Borrower shall keep and maintain the Property
free from all liens of Persons supplying labor or materials relating to the
construction, alteration, modification or repair of the Property. In
no event shall Borrower do or permit to be done, or omit to do or permit the
omission of, any act or thing where such act or omission may impair the security
of this Mortgage.
14. Security Agreement; Fixture
Filing. Borrower, as debtor, grants to Agent on behalf of the Banks, as
secured party, as further security for the Obligations, a security interest in
all existing and future fixtures and all proceeds of the
foregoing. This Mortgage shall be effective as a fixture filing and a
financing statement for purposes of Article 9 of the Uniform Commercial Code as
in effect in the State of Kansas.
15. Default. The
Obligations shall become immediately due and payable in full at the option of
Agent upon the occurrence of any one or more of the following (an "Event of
Default"): (a) the occurrence of an Event of Default, as
defined in the Credit Agreement; (b) Borrower shall fail to pay any Imposition
on or before the date such Imposition may be paid without any penalty, interest
or other premium; (c) Borrower shall fail to pay timely any premiums for
insurance required under Section 7 or Borrower shall fail to reimburse Agent on
demand for premiums paid by it on the insurance required under Section 7; (d)
Borrower shall directly or indirectly create, suffer or permit to be created or
to stand against the Property or against the rents, issues and profits
therefrom, any lien, security interest, charge, mortgage, deed of trust or other
encumbrance not expressly permitted herein or in the Credit Agreement without in
each instance obtaining Agent's prior written consent thereto; (e) Borrower's
default in the observance or performance of any other covenant of Borrower
hereunder (other than a covenant the performance or observance of which is
specifically referred to elsewhere in this Section 15), which default is not
cured within 30 days after Agent gives Borrower notice thereof; (f) Borrower
shall sell, convey, alienate, assign or otherwise transfer the Property, or any
part thereof or interest therein, in any manner, whether voluntary, involuntary,
by operation of law or otherwise, or Borrower shall enter into any agreement,
written or oral, to so sell, convey, alienate, assign or otherwise transfer the
Property, or any part thereof or interest therein; (g) there shall occur a
default or an event of default under any other deed of trust, mortgage or like
real property security instrument which encumbers the Property, or under any
document evidencing any obligation secured thereby, or any foreclosure or
similar proceeding shall commence with respect to the Property; (h) Borrower
shall deliver to Agent any notice terminating or purporting to terminate, or
Borrower shall take any other action to terminate or purporting to terminate,
the operation of this Mortgage as security for any future advances or future
obligations; or (i) the filing of any action to condemn, acquire by eminent
domain or otherwise take any part of the Premises or Building which, in Agent's
determination, materially and adversely affects the use or intended use of the
Property as a whole or otherwise materially and adversely affects Borrower's
business prospects.
16. Notice Upon Acceleration;
Application of Payments. Whenever Agent in this Mortgage or in
the other Credit Documents is given the option to accelerate the maturity of all
or part of the Obligations, Agent may, to the extent permitted by law, do so
without presentment, protest, notice to or demand upon
Borrower. Agent shall have the sole and exclusive right, and Borrower
irrevocably waives any right, to direct or redirect the application of any
monies received by Agent on account of the Obligations (whether such monies are
received before or after the occurrence of an Event of Default, in the ordinary
course of affairs, by acceleration, maturity or otherwise) against the
Obligations in such
9
manner as
Agent may deem advisable, from time to time, notwithstanding any entry by Agent
upon any of its books and records.
17. Appointment of
Receiver. If an Event of Default exists, or if any action
shall be commenced to foreclose this Mortgage, without obligation to do so,
Agent, to the extent permitted by applicable law, may apply for the appointment
of a receiver of the rents, issues and profits of the Property without notice or
demand, and shall be entitled to the appointment of such receiver as a matter of
right, without consideration of the value of the Property as security for the
amounts due to Agent or the solvency of any Person liable for the payment of
such amounts.
18. Foreclosure. If
an Event of Default exists, Agent may, to the extent permitted by law, institute
an action of judicial foreclosure, or take such other action as the law may
allow, at law or in equity, to enforce this Mortgage and to realize upon the
Property or any other security which is herein or elsewhere provided for, and to
proceed to final judgment and execution for the entire unpaid balance of the
Obligations at the rate stipulated herein or in the Credit Agreement or the
other Credit Documents, as the case may be, to the date of default, and
thereafter at the Default Rate, together with, to the extent permitted by
applicable law, all other sums secured by this Mortgage, all costs of suit, and
interest at the Default Rate on any judgment obtained by Agent from and after
the date of any judicial sale of the Property (which may be sold in one parcel
or part or in such parcels or parts, manner or order as Agent shall elect) until
actual payment is made to Agent on the full amount due Agent. Agent
may foreclose or otherwise realize upon one parcel or any other part of the
Property, on one or more occasions, without releasing this Mortgage or
precluding the further foreclosure or other realization hereunder of any other
parcels or parts of the Property not so foreclosed or realized
upon. Failure to join or to provide notice to tenants or any other
Persons as defendants or otherwise in any foreclosure action or suit shall not
constitute a defense to such foreclosure or other action. Upon any
foreclosure sale, whether by virtue of judicial proceedings or otherwise, Agent
or any Bank may bid and purchase the Property or any part thereof or interest
therein, and upon compliance with the terms of the sale, may hold, retain,
possess and dispose of the same in its own absolute right, without further
accountability.
19. Possession of
Property. To the extent permitted by applicable law, if an
Event of Default exits, Agent and its agents, designees or assigns are
authorized to (i) take possession of the Property, with or without legal
action; (ii) lease the Property; (iii) collect all rents, issues and
profits therefrom, with or without taking possession of the Property; and (iv)
after deducting all costs of collection and administration expenses, apply the
net rents, issues and profits to the payment of Impositions, insurance premiums
and all other carrying charges (including, but not limited to, agents'
compensation and fees and costs of counsel and receivers) and to the
maintenance, repair or restoration of the Property, or on account and in
reduction of the Obligations, in such order and amounts as Agent, in Agent's
sole discretion, may elect. Agent shall be liable to account only for
rents, issues and profits actually received by it.
20. Waivers. To
the extent permitted by applicable law, Borrower hereby irrevocably waives and
releases: (i) any right of redemption after the date of any sale
of the Property upon foreclosure, whether statutory or otherwise, in respect of
the Property now or hereafter in force (irrespective of whether Agent or any
other Person purchases the Property at such foreclosure); (ii) the benefit of
any and all valuation and appraisement laws now or hereafter in force;
(iii) all exemption laws whatsoever and all moratoriums, extensions or stay
laws or rules, or orders of court in the nature of either of them, now or
hereafter in force; and (iv) any right to have the Property marshaled upon
any foreclosure of this Mortgage.
21. Expenses of
Agent. To the extent permitted by applicable law, all costs
and expenses paid or incurred by Agent and/or any of the Banks, including,
without limitation, attorneys' fees, in any action, proceeding or dispute of any
kind in which Agent and/or any of the Banks is made a party or
10
appears as
a plaintiff or defendant, affecting Agent, any of the Banks, this Mortgage, the
other Credit Documents and/or the Property, including, but not limited to, the
enforcement of this Mortgage, any condemnation action involving the Property,
any action to protect the security hereof, or any case or proceeding under Title
11 of the United States Code shall be added to and included in the Obligations
and shall be secured by this Mortgage and, upon demand, shall be immediately due
from Borrower. Without limiting the generality of the foregoing, if this
Mortgage shall be foreclosed, or if any of the other Credit Documents are placed
in the hands of an attorney for collection or is collected through any court,
including any bankruptcy court, Borrower, to the extent permitted by applicable
law, shall pay to Agent the attorneys' fees, court costs, disbursements and
other costs incurred (irrespective of whether litigation is commenced in
pursuance thereof) in collecting or attempting to collect the Obligations or
enforcing or defending Agent's rights hereunder, or under the other Credit
Documents, or under any other collateral securing the Obligations, and all
allowances provided by law, to the extent allowed by the laws of the state in
which the Property is located, or any state in which any of such other
collateral for the Obligations is situated, or other applicable
law. All of Borrower's obligations under this Section shall survive
the foreclosure, release or other termination of this Mortgage, the satisfaction
of the other Obligations secured hereby, and any merger of this Mortgage into
any judgment or the like, whether pursuant to foreclosure or
otherwise.
22. Discontinuance of
Action. Agent may from time to time, to the extent permitted
by applicable law, take action to recover any sums, whether interest, principal
or any other obligation or sums, required to be paid under this Mortgage or the
other Credit Documents, as the same become due, without prejudice to the right
of Agent thereafter to bring an action of foreclosure, or any other action, for
a default existing when such earlier action was commenced. If Agent
shall have proceeded to enforce any right under this Mortgage or the other
Credit Documents, and such proceedings shall have been discontinued or abandoned
for any reason, then in every such case Borrower and Agent shall be restored to
their former positions and the rights, remedies and powers of all parties hereto
shall continue as if no such proceedings had been taken.
23. Taxes. Upon
passage after the date of this Mortgage of any law of the United States, the
State of Kansas or any other governmental entity which deducts from the value of
real property, for purposes of taxation, any indebtedness secured by mortgages
or which changes in any way the laws for the taxation of mortgages or debts
secured by mortgages for State or local purposes or the manner of the collection
of any such taxes, and which imposes a tax, either directly or indirectly, on
this Mortgage or all or any part of the sum secured hereby or the interest
thereon, Agent may declare the whole of the Obligations and the interest accrued
thereon, due on a date to be specified by not less than 30 days' written notice
to Borrower; provided,
however, that such declaration shall be ineffective if Borrower is
permitted by law to pay such tax in addition to all other payments required
hereunder, without any penalty or charge thereby accruing to Agent, and if
Borrower pays such tax within such 30 day period. Borrower shall pay
any taxes except income taxes imposed on Agent or any Bank relating to this
Mortgage.
24.
Recording and Other
Fees; Further Assurances. Borrower shall pay all recording and
filing fees, all recording taxes and all other costs and expenses in connection
with the preparation, execution and recordation and other manner of perfection
of this Mortgage and any other Credit Documents – including, without limitation,
all mortgage registration fees payable under K.S.A. §79-3102 and/or other
applicable law – and shall reimburse Agent on demand for all costs and expenses
of any kind incurred by or on behalf of Agent in connection
therewith. Borrower agrees to execute and deliver promptly such
instruments and other documents, and promptly to take such action or promptly
refrain from taking such action, as Agent may request, from time to time, to
evidence, create, perfect, continue or otherwise assure Agent of the real and
personal property security interests granted, or purported to be granted, to or
for the benefit of Agent hereunder and all other rights and benefits granted, or
purported to be granted, to or for the benefit of Agent hereunder; all at the
sole cost and expense of Borrower. Without
11
limiting
the generality of the foregoing, Borrower shall, at any time on request of
Agent, execute or cause to be executed and shall deliver financing statements,
continuation statements, security agreements, or the like, in respect of any
Property and Borrower shall pay all filing fees, including, without limitation,
fees for filing continuation statements, in connection with such financing
statements.
25. No
Waiver. Any failure by Agent to insist upon the strict
performance by Borrower of any of the Obligations shall not be deemed to be a
waiver of any of such Obligations, and Agent, notwithstanding any such failure,
may thereafter insist upon the strict performance by Borrower of any and all of
the Obligations.
26. No
Release. Borrower and any other Person now or hereafter
obligated for the payment or performance of all or any part of the Obligations
shall not be released from paying and performing such Obligations and the lien
of this Mortgage shall not be affected by reason of (i) the failure of Agent to
comply with any request of Borrower, or of any other Person so obligated, to
take action to foreclose this Mortgage or otherwise enforce any of the
provisions of this Mortgage or of any of the Obligations secured by this
Mortgage; (ii) the release, regardless of consideration, of the obligations of
any Person or Persons liable for payment or performance of the Obligations or
any part thereof; or (iii) any agreement or stipulation extending the time
of payment or modifying the terms of any of the Credit Documents and in the
event of such agreement or stipulation, Borrower and all such other Persons
shall continue to be liable under such Credit Documents, as amended by such
agreement or stipulation, unless expressly released and discharged in writing by
Agent.
27. Release of
Collateral. Agent may release or partially release, regardless
of consideration, the obligation of any Person liable for payment of any of the
Obligations secured hereby, or may release any part of the Property or any other
collateral now or hereafter given to secure the payment of the Obligations or
any part thereof, without impairing, reducing or otherwise affecting the
obligations of Borrower under the Credit Agreement or any other Credit
Documents, the remainder of the security of this Mortgage or the priority of the
rights created by this Mortgage.
28. Rights
Cumulative. The rights and remedies provided for in this
Mortgage, or which Agent may have otherwise, at law or in equity, shall be
distinct, separate and cumulative and shall not be deemed to be inconsistent
with each other, and none of them, whether or not exercised by Agent, shall be
deemed to be in exclusion of any other, and, to the extent permitted by law, any
two or more of all such rights and remedies may be exercised at the same
time.
29. Severability. If
any term or provision of this Mortgage or the application thereof to any Person
or circumstance shall to any extent be invalid or unenforceable, the remainder
of this Mortgage, or the application of such term or provision to Persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Mortgage shall be
valid and enforceable to the fullest extent permitted by law. If any
payments (including, without limitation, any interest payments) required to be
made hereunder or under the other Credit Documents shall be in excess of the
amounts allowed by law, the amounts of such payments shall be reduced to the
maximum amounts allowed by law. Furthermore, all rights, powers and
remedies provided in this Mortgage may be exercised only to the extent that the
exercise thereof does not violate any applicable provisions of law and are
intended to be modified to the extent necessary to comply with applicable law
and are intended to be limited to the extent necessary so that they will not
render this Mortgage invalid, unenforceable or not entitled to be recorded,
registered or filed under the provisions of any applicable law.
12
30. Notices. All
notices, demands, consents, approvals and requests given or required to be given
by any party hereto to any other party hereto shall be in writing and shall be
given in accordance with the terms and provisions of the Credit
Agreement.
31. Indemnification Against
Liabilities. Borrower shall protect, indemnify, hold harmless
and defend Agent and the Banks from and against any and all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses
(including, without limitation, attorneys' fees and expenses) imposed upon
incurred by or asserted against Agent or any of the Banks by reason of
(a) ownership of an interest in the Property, (b) any accident or
injury to or death of Persons or loss of or damage to or loss of the use of
property occurring on or about the Property, or the adjoining sidewalks, curbs,
vaults and vault spaces, if any, streets, alleys or ways, (c) any use,
non-use or condition of the Property, or the adjoining sidewalks, curbs, vaults
and vault spaces, if any, streets, alleys or ways, (d) any failure on the
part of Borrower to perform or comply with any of the terms of this Mortgage or
the other Credit Documents, (e) performance of any labor or services or the
furnishing of any materials or other property in respect of the Property made or
suffered to be made by or on behalf of Borrower, (f) any acts or omissions
on the part of Borrower or any of its agents, contractors, lessees, licensees or
invitees, or (g) any work in connection with any alterations, changes, new
construction or demolition of the Property; in each case irrespective of whether
any such liabilities, obligations, claims, damages, penalties, causes of
actions, costs or expenses are, caused by, or otherwise arise out of, in whole
or in part, Agent's or any Bank's negligence or other tortious conduct (other
than any gross negligence or willful misconduct by Agent of any Bank), whether
active or passive. Borrower will pay and hold Agent and the Banks
harmless against any and all liability with respect to any intangible personal
property tax or similar imposition of the state in which the Property is located
or any subdivision or authority thereof now or hereafter in effect, to the
extent that the same may be payable by Agent or any Bank in respect of this
Mortgage, the other Credit Documents or the Obligations. All amounts
payable to Agent or any Bank under this Section shall be payable on demand and
shall be deemed Obligations secured by this Mortgage. If any action,
suit or proceeding is brought against Agent or any Bank by reason of any such
occurrence, Borrower, upon request of Agent will, at Borrower's expense, resist
and defend such action, suit or proceeding or cause the same to be resisted or
defended by counsel designated by Borrower and approved by Agent. All
of Borrower's obligations under this Section shall survive the foreclosure,
release or other termination of this Mortgage and the satisfaction of the
Obligations, and any merger of this Mortgage into any judgment or the like,
whether pursuant to foreclosure or otherwise.
32. Environment. (a) Borrower
shall comply with all applicable laws (whether statutory, common law or
otherwise), rules, regulations, orders, permits, licenses, ordinances, judgments
or decrees of all governmental authorities (whether federal, state, local or
otherwise), including, without limitation, all laws regarding public health or
welfare, environmental protection, water or air pollution, composition of
products, underground storage tanks, toxic substances or chemicals, solid and
special wastes, hazardous wastes, substances, material or chemicals, waste,
used, or recycled oil, asbestos, occupational health and safety, nuisances,
trespass, and negligence.
(b) Neither
Agent nor any Bank shall assume or be deemed to assume any responsibility,
liability, or obligation with respect to compliance with any federal, state, or
local environmental law, rule, regulation, order, permit, license, ordinance,
judgment or decree; provided,
however, that in the event of the imposition or assumption for any reason
whatsoever of any such responsibility, liability, or obligation, Borrower agrees
to indemnify and hold Agent and the Banks harmless from and against any and all
claims, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements, of any kind or nature
whatsoever, including without limitation, attorneys' and experts' fees, which
may be imposed on, incurred by or asserted against it in any way relating to or
arising from the Obligations, this Mortgage, the other Credit Documents and/or
the Property. All of Borrower's obligations under this Section shall
survive the foreclosure, release or other
13
termination
of this Mortgage and the satisfaction of the Obligations, and any merger of this
Mortgage into any judgment or the like, whether pursuant to foreclosure or
otherwise.
33. Certain
Definitions. The following terms shall, for purposes of this
Mortgage, have the respective meanings herein specified unless the context
otherwise requires: (a) "Agent" means the
Agent herein named and any subsequent mortgagee under this Mortgage, and its,
his, her or their respective successors, assigns, heirs and personal
representatives. (b) "Bank" means each Bank
referred to in the Credit Agreement and, subject to the terms and provisions of
the Credit Agreement, its successors and assigns, and likewise includes, except
if otherwise provided in the Credit Agreement, any swing line lender, letter of
credit issuer, swap provider or other credit or financial service provider for
whom, pursuant to the terms of the Credit Agreement, Agent is to act as
collateral agent or the like. (c) "Borrower" means the
Borrower herein named and any subsequent owner or owners of the Property and
its, his, her or their respective successors, assigns, heirs and personal
representatives. (d) "Building" means all
of the Building described herein including any part
thereof. (e) "Building Equipment"
means all of the Building Equipment described herein including any part
thereof. (f) "Person" means an
individual, corporation, partnership, trust, unincorporated organization or
government, or any agency or political subdivision thereof, or any other legal
entity. (g) "Premises" means all
of the Premises described herein including any part
thereof. (h) "Property" means all
of the Property described herein including any part thereof.
34. Successors and
Assigns. The terms, covenants and provisions of this Mortgage
shall apply to and be binding upon Borrower and all subsequent owners and other
Persons who have an interest in the Property, and shall inure to benefit of
Agent, the successors and assigns of Agent, and all subsequent holders of this
Mortgage, but the provisions of this Section shall not be construed to modify
the provisions of Section 15(g).
35. Related
Obligations. If and to the extent the Credit Agreement at any
time authorizes Agent to act as a collateral agent or the like for the benefit
of any Bank or any affiliate of any Bank that may issue interest rate swaps or
other hedging instruments to or for the benefit of Borrower, the Obligations
secured hereby shall include Borrower's existing and future obligations with
respect to any such interest rate swaps and/or other hedging
instruments.
36. Miscellaneous.
Borrower further agrees as follows: (a) This Mortgage
cannot be changed, waived, discharged or terminated orally but only by an
agreement in writing, signed by the party against whom enforcement of the
change, waiver, discharge or termination is
sought. (b) This Mortgage shall be construed without
regard to any presumption or rule requiring construction against the party
causing such instrument or any portion thereof to be
drafted. (c) All terms and words used in this Mortgage,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may
require. (d) If there shall be more than one Borrower, the
representations, warranties, covenants and other obligations of Borrower
hereunder shall be the joint and several representations, warranties, covenants
and other obligations of each and every Borrower. Whenever the terms
of this Mortgage prohibit Borrower from doing or permitting to be done, whether
voluntarily or otherwise, any act or event, any such negative covenants shall
apply to each and every Borrower and the failure of any one Borrower in respect
thereof shall be deemed a default of such negative covenant notwithstanding that
any other Borrower may not be in default of such negative
covenant. (e) The Section headings in this Mortgage and
any index at the beginning of this Mortgage are for convenience of reference
only and shall not limit or otherwise affect any of the terms
hereof. (f) All covenants contained herein shall run with
the Property until the Obligations have been fully paid and
performed. (g) Time is of the essence in the payment and
performance by Borrower of the Obligations. (h) This
Mortgage shall be governed by the laws of the State of Kansas, without regard to
any choice of law rule thereof which gives effect to the laws of any other
jurisdiction.
14
IN WITNESS WHEREOF, this Mortgage has
been duly executed by Borrower and delivered to Agent as of the day and year
first above written.
MGP
INGREDIENTS, INC., a Kansas corporation
By: /s/
Xxxxxx Xxxxxxxxx
Name:
Xxxxxx Xxxxxxxxx
Title:
V.P. Finance & CFO
15
STATE
OF Kansas )
)
SS.
COUNTY OF
Xxxxxxxx)
The
foregoing instrument was acknowledged before me on November 7, 2008, by Xxxxxx
Xxxxxxxxx, as VP Finance & CFO of MGP INGREDIENTS, INC., a
Kansas corporation, on behalf of the corporation.
/s/ Xxxxx
X. Xxxxx
Notary
Public
[Seal]
My
Commission expires: /1-/3/2010
16
Exhibit
A
(legal
description of Premises)
A tract of
land located in the Northeast Quarter of the Southeast Quarter of Section 34,
Township 6 South, Range 11 East of the 6th P.M. in Pottawatomie County, Kansas,
more particularly described as follows: Commencing at the point of
intersection of the center line of the Union Pacific Railroad Company main
tract, as located in August 1988 with the East Right-of-Way line of Xxxxxxx
Street, a public street; thence along the East Right-of-Way line of said Xxxxxxx
Street South 394.00 feet to the Northwest corner of the Xxxxxx Xxxxxxxxx tract
as described on Page 144 of Book 164 at the Pottawatomie County Register of
Deeds; thence along the Northerly line or extended Northerly line of the said
Fairbanks tract and the Northerly line of the Onaga Area Community Center Fund
tract as described on Page 355 of Book 228 at the Pottawatomie County Register
of Deeds, being the Southerly line of the Onaga Waterworks Tract, S 82° 52' 25"
E, 280.00 feet to the point of beginning, being corner 1, marked by a 1/2" iron
bar; said corner 1 being the Southeast corner of the said Onaga City Waterworks
Tract; thence continuing along the Northerly line of said Onaga Area Community
Center Fund Tract, S 82° 52' 25" E, 35.54 feet to the Northeast corner of the
said Onaga Area Community Center Fund Tract, being corner 2, marked by a 1/2"
iron bar; thence along the Easterly line of the said Onaga Area Community Center
Fund Tract, being parallel to and 214.00 feet perpendicular from the Easterly
line of the said Fairbanks Tract South 382.01 feet to the Northerly Right-of-Way
line of a public road, known as the Xxxx Xxxxxxx Road, being corner 3 marked by
a 1/2" iron bar; thence traversing along the Northerly Right-of-Way line of said
Xxxx Xxxxxxx Road the following three courses:
(1) S 64°
27' 15" E, 312.76 feet to corner 4, marked by a 1/2" iron bar;
(2) on a
curve to the left with a radius of 640.87 feet an arc length of 209.85 feet,
chord of said curve bears S 73° 50' 04" E, 208.91 feet to corner 5, marked by a
1/2" iron bar;
(3) S 83°
12' 53" E, 123.97 feet to the Southwesterly Right-of-Way line of the Union
Pacific Railroad Company, being corner 6, marked by a 1/2" iron bar, said corner
6 being 740.27 feet S 0° 11' 13" W, 387.41 feet N 89° 48' 47" W from the East
Quarter of said Section 34; thence along the Southwesterly Right-of-Way line of
the Union Pacific Railroad Company on a curve to the left with a radius of
3762.74 feet (chord definition) an arc length of 936.82 feet, chord of said
curve bears N 43° 19' 52" W, 934.40 feet to corner 7, marked by a 1/2" iron bar,
said corner 7 being on the Easterly line of the said Onaga City Waterworks
tract; thence along the Easterly line of the said Onaga City Waterworks tract
South 85.58 feet to the point of beginning.
Exhibit
B
(Permitted
Liens)
1. Taxes
and assessments for the calendar year 2008 and subsequent years, provided that
payment of such taxes and assessments is not
delinquent.
