Exhibit 4.5.4
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Return To:
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Union State Bank of
Everest DBA Bank of Atchison USB
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701 Kansas Avenue
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Prepared By:
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Donald E. Ball
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State
of Kansas
Space
Above This Line For Recording Data
REAL
ESTATE MORTGAGE
(With Future
Advance Clause)
1. DATE
AND PARTIES. The date of this Mortgage (Security
Instrument) is March 31, 2009 and the parties, their addresses end tax
identification numbers, if required, are as follows:
MORTGAGOR:
MGP
INGREDIENTS, INC. a Kansas Corporation
1300 Main
Street PO Box 130
Atchison,
KS 66002
o If
checked, refer to the attached Addendum incorporated herein, for additional
Mortgagors, their signatures and acknowledgments.
LENDER:
Union
State Bank of Everest DBA. Bank of Atchison USB, organized and existing under
the laws of Kansas
701
Kansas Avenue
Atchison,
KS 66002
Taxpayer
ID #: 48-0456400
2. CONVEYANCE. For good and valuable consideration, the
receipt and sufficiency of which is acknowledged, and to secure the Secured
Debt (defined below) and Mortgagor’s performance under this Security
Instrument, Mortgagor grants, bargains, conveys, mortgages and warrants to
Lender the following described property:
See
schedule “A”
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KANSAS -
AGRICULTURAL/COMMERCIAL REAL ESTATE SECURITY INSTRUMENT
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(NOT FOR FNMA, FHLMC,
FHA OR VA USE, AND NOT FOR CONSUMER PURPOSES)
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 © 1993, 2001 Bankers Systems, Inc., St.
Cloud, MN Form AGCO-RESI-K9 11/25/2003
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13615 CV (1/04) BOA92260
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GOTO(00167c00)
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Book
553 Page 100
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1
Book: 571
Page: 783
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The property is located
in
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Atchison
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at
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(County)
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, Kansas
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(Address)
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(City)
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(Zip Code)
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Together with all
rights, easements, appurtenances, royalties, mineral rights, oil and gas
rights, crops, timber, all diversion payments or third party payments made to
crop producers, all water and riparian rights, wells, ditches, reservoirs, and
water stock and all existing and future improvements, structures, fixtures, and
replacements that may now, or at any time in the future, be part of the real
estate described above (all referred to as “Property”).
3. MAXIMUM
OBLIGATION LIMIT. The total principal amount secured by this
Security Instrument at any one time shall not exceed $ 1,500,000.00. This limitation of amount does not include
interest and other fees and charges validly made pursuant to this Security
Instrument. Also, this limitation doss
not apply to advances made under the terms of this Security Instrument to
protect Lender’s security and to perform any of the covenants contained in this
Security Instrument. The limitation is
for the purposes set forth in K.S.A. § 9-1101, § 58-2336 and § 79-3102.
4. SECURED
DEBT AND FUTURE ADVANCES. The term “Secured Debt” is defined as
follows:
A. Debt
Incurred under the terms of all promissory note(s), contract(s), guaranty(ies)
or other evidence of debt described below and all their extensions, renewals,
modifications or substitutions. (When referencing the debts below it is suggested
that you include items such as borrowers’ names, note amounts, interest rates,
maturity dates, etc.)
Universal Note dated March 31,2009
in the amount of $1,500,000.00 and any other extensions of credit in the future
which reference this mortgage.
B. All
future advances from Lender to Mortgagor or other future obligations of
Mortgagor to Lender under any promissory note, contract, guaranty, or other
evidence of debt existing now or executed after this Security Instrument
whether or not this Security Instrument is specifically referenced, or such
future advances or future obligations are incurred for any purpose that was
related or unrelated to the purpose of the Security Instrument. If more than one person signs this Security
Instrument, each Mortgagor agrees that this Security Instrument will secure all
future advances and future obligations that are given to or incurred by any one
or more Mortgagor, or any one or more Mortgagor and others. All future advances and other future
obligations are secured by this Security Instrument even though all or part may
not yet be advanced. All future advances
and other future obligations are secured as if made on the date of this
Security Instrument. Nothing in this
Security Instrument shall constitute a commitment to make additional or future
loans or advances in any amount. Any
such commitment must be agreed to in a separate writing.
C. All
obligations Mortgagor owes to Lender, which now exist or may later arise, to
the extent not prohibited by law, including, but not limited to, liabilities
for overdrafts relating to any deposit account agreement between Mortgagor and
Lender.
D. All
additional sums advanced and expenses incurred by Lender for insuring,
preserving or otherwise protecting the Property and its value and any other
sums advanced and expenses incurred by Lender under the terms of this Security
Instrument.
This Security Instrument
will not secure any other debt if Lender fails to give any required notice of
the right of rescission.
5. PAYMENTS. Mortgagor agrees that all payments under the
Secured Debt will be paid when due and in accordance with the terms of the
Secured Debt and this Security Instrument.
6. WARRANTY
OF TITLE. Mortgagor warrants that Mortgagor is or will
be lawfully seized of the estate conveyed by this Security Instrument and has
the right to grant, bargain, convey, sell, mortgage and warrant the
Property. Mortgagor also warrants that
the Property is unencumbered, except for encumbrances of record.
7. PRIOR
SECURITY INTERESTS. With regard to any other mortgage, deed of
trust, security agreement or other lien document that created a prior security
interest or encumbrance on the Property, Mortgagor agrees:
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Page: 784
A. To
make all payments when due and to perform or comply with all covenants.
B. To
promptly deliver to Lender any notices that Mortgagor receives from the holder.
C. Not
to allow any modification or extension of, nor to request any future advances
under any note or agreement secured by the lien document without Lender’s prior
written consent.
8. CLAIMS
AGAINST TITLE. Mortgagor will pay all taxes, assessments,
liens, encumbrances, lease payments, ground rents, utilities, and other charges
relating to the Property, when due.
Lender may require Mortgagor to provide to Lender copies of all notices
that such amounts are due and the receipts evidencing Mortgagor’s payment. Mortgagor will defend title to the Property
against any claims that would impair the lien of this Security Instrument. Mortgagor agrees to assign to Lender, as
requested by Lender, any rights, claims or defenses Mortgagor may have against
parties who supply labor or materials to maintain or improve the Property.
9. DUE ON
SALE OR ENCUMBRANCE. Lender may, at its option, declare the entire
balance of the Secured Debt to be immediately due and payable upon the creation
of, or contract for the creation of, any lien, encumbrance, transfer or sale of
all or any part of the Property. This
right is subject to the restrictions imposed by federal law (12 C.F,R. 591), as
applicable. This covenant shall run with
the Property and shall remain in effect until the Secured Debt is paid in full
and this Security Instrument is released.
10. [INTENTIONALLY
DELETED]
11. ENTITY
WARRANTIES AND REPRESENTATIONS. If Mortgagor is an entity other than a
natural person (such as a corporation or other organization), Mortgagor makes
to Lender the following warranties and representations which shall continue as
long as the Secured Debt remains outstanding:
A. Mortgagor
is duly organized and validly existing in Mortgagor’s state of incorporation or
organization. Mortgagor is in good
standing in all states in which Mortgagor transacts business. Mortgagor has the power and authority to own
the Property and to carry on its business as now being conducted and, as
applicable, is qualified to do so in each state in which Mortgagor operates.
B. The
execution, delivery and performance of this Security Instrument by Mortgagor
and the obligations evidenced by the Secured Debt are within the power of
Mortgagor, have been duly authorized, have received all necessary governmental
approval, and will not violate any provision of law, or order of court or
governmental agency.
C. Other
than previously disclosed in writing to Lender, Mortgagor has not changed its
name within the last ten years and has not used any other trade or fictitious
name. Without Lender’s prior written
consent, Mortgagor does not and will not use any other name and will preserve
its existing name, trade names and franchises until the Secured Debt is
satisfied.
12. PROPERTY
CONDITION, ALTERATIONS AND INSPECTION. Mortgagor will keep the Property in good
condition and make all repairs that are reasonably necessary. Mortgagor shall not commit or allow any
waste, impairment, or deterioration of the Property. Mortgagor will keep the Property free of
noxious weeds and grasses. Mortgagor
agrees that the nature of the occupancy and use will not substantially change
without Lender’s prior written consent.
Mortgagor will not permit any change in any license, restrictive
covenant or easement without Lender’s prior written consent. Mortgagor will notify Lender of all demands,
proceedings, claims, and actions against Mortgagor, and of any loss or damage
to the Property.
No portion of the
Property will be removed, demolished or materially altered without Lender’s
prior written consent except that Mortgagor has the right to remove items of
personal property comprising a part of the Property that become worn or
obsolete, provided that such personal property is replaced with other personal
property at least equal in value to the replaced personal property, free from
any title retention device, security agreement or other encumbrance. Such replacement of personal property will be
deemed subject to the security interest created by this Security
instrument. Mortgagor shall not partition
or subdivide the Property without Lender’s prior written consent.
Lender or Lender’s agents
may, at Lender’s option, enter the Property at any reasonable time for the
purpose of inspecting the Property.
Lender shall give Mortgagor notice at the time of or before an
inspection specifying a reasonable purpose for the inspection. Any inspection of the Property shall be
entirely for Lender’s benefit and Mortgagor will in no way rely on Lender’s
inspection.
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Page: 785
13. AUTHORITY
TO PERFORM. if Mortgagor falls to perform any duty or any
of the covenants contained in this Security instrument, Lender may, without
notice, perform or cause them to be performed.
Mortgagor appoints Lender as attorney in fact to sign Mortgagor’s name
or pay any amount necessary for performance.
Lender’s right to perform for Mortgagor shall not create an obligation
to perform, and Lender’s failure to perform will not preclude Lender from
exercising any of Lender’s other rights under the law or this Security
Instrument. If any construction on the
Property is discontinued or not carried on in a reasonable manner, Lender may
take all steps necessary to protect Lender’s security interest in the Property,
including completion of the construction.
14. ASSIGNMENT
OF LEASES AND RENTS. Mortgagor assigns, grants, bargains, conveys,
mortgages and warrants to Lender as additional security all the right, title
and interest in the following (Property).
A. Existing
or future leases, subleases, licenses, guaranties and any other written or
verbal agreements for the use and occupancy of the Property, including but not
limited to, any extensions, renewals, modifications or replacements (Leases).
B. Rents,
issues and profits, including but not limited to, security deposits, minimum
rents, percentage rents, additional rents, common area maintenance charges,
parking charges, real estate taxes, other applicable taxes, insurance premium
contributions, liquidated damages following default, cancellation premiums, “loss
of rents” insurance, guest receipts, revenues, royalties, proceeds, bonuses,
accounts, contract rights, general intangibles, and all rights and claims which
Mortgagor may have that in any way pertain to or are on account of the use or
occupancy of the whole or any part of the Property (Rents).
In the event any item
listed as Leases or Rents is determined to be personal property, this
Assignment will also be regarded as a security agreement.
Mortgagor will promptly
provide Lender with copies of the Leases and will certify these Leases are true
and correct copies. The existing Leases
will be provided on execution of the Assignment, and all future Leases and any
other information with respect to these Leases will be provided immediately
after they are executed. Mortgagor may
collect, receive, enjoy end use the Rents so long as Mortgagor is not in
default. Mortgagor will not collect in
advance any Rents due in future lease periods, unless Mortgagor first obtains
Lender’s written consent. Upon default,
Mortgagor will receive any Rents in trust for Lender end Mortgagor will not
commingle the Rents with any other funds.
When Lender so directs, Mortgagor will endorse and deliver any payments
of Rents from the Property to Lender.
Amounts collected will be applied at Lender’s discretion to the Secured
Debts, the costs of managing, protecting and preserving the Property, and other
necessary expenses. Mortgagor agrees
that this Security Instrument is immediately effective between Mortgagor and
Lender and effective as to third parties on the recording of this Assignment.
As long as this
Assignment is in effect, Mortgagor warrants and represents that no default
exists under the Leases, and the parties subject to the Leases have not
violated any applicable law on leases, licenses and landlords and tenants. Mortgagor, at its sole cost and expense, will
keep, observe and perform, and require all other parties to the Leases to
comply with the Leases and any applicable law.
If Mortgagor or any party to the Lease defaults or fails to observe any
applicable law, Mortgagor will promptly notify Lender. If Mortgagor neglects or refuses to enforce
compliance with the terms of the Leases, then Lender may, at Lender’s option,
enforce compliance.
Mortgagor will not
sublet, modify, extend, cancel, or otherwise alter the Leases, or accept the
surrender of the Property covered by the Leases (unless the Leases so require)
without Lender’s consent. Mortgagor will
not assign, compromise, subordinate or encumber the Leases and Rents without
Lender’s prior written consent. Lender
does not assume or become liable for the Property’s maintenance, depreciation,
or other losses or damages when Lender acts to manage, protect or preserve the
Property, except for losses and damages due to Lender’s gross negligence or
intentional torts. Otherwise, Mortgagor
will indemnify Lender and hold Lender harmless for all liability, loss or
damage that Lender may incur when Lender opts to exercise any of its remedies
against any party obligated under the Leases.
15. LEASEHOLDS;
CONDOMINIUMS; PLANNED UNIT DEVELOPMENTS. Mortgagor agrees to comply with the
provisions of any lease if this Security Instrument is on a leasehold. If the Property includes a unit in a
condominium or a planned unit development, Mortgagor will perform all of Mortgagor’s
duties under the covenants, by-laws, or regulations of the condominium or
planned unit development.
16. DEFAULT. Mortgagor will be in default if any of the
following occur or within five (5) days thereafter:
A. Any
party obligated on the Secured Debt falls to make payment when due;
B. A
breach of any term or covenant in this Security Instrument or any other
document executed for the purpose of creating, securing or guarantying the
Secured Debt which is not cured within any grace period provided;
C. The
making or furnishing of any verbal or written representation, statement or
warranty to Lender that is false or incorrect in any material respect by
Mortgagor or any person or entity obligated on the Secured Debt;
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Page: 786
D. The
death, dissolution, or insolvency of, appointment of a receiver for, or
application of any debtor relief law to, Mortgagor or any other person or
entity obligated on the Secured Debt;
E. A
good faith belief by Lender at any time that the prospect of any payment is
impaired or the value of the Property is impaired;
F. A
material adverse change in Mortgagor’s business including which Lender in its
opinion believes impairs the value of the Property or repayment of the Secured
Debt; or
G. Any
loan proceeds are used for a purpose that will contribute to excessive erosion
of highly erodible land or to the conversion of wetlands to produce an
agricultural commodity, as further explained in 7 C.F.R. Part 1940, Subpart G, Exhibit
M.
17. REMEDIES
ON DEFAULT. In some Instances, federal and state law will
require Lender to provide Mortgagor with notice of the right to cure or other
notices and may establish time schedules for foreclosure actions. Subject to these limitations, if any, Lender
may accelerate the Secured Debt and foreclose this Security Instrument in a
manner provided by law if Mortgagor is in default.
At the Option of Lender,
all or any part of the agreed fees and charges, accrued interest and principal
shall become immediately due and payable, after giving notice if required by
law, upon the occurrence of a default or anytime thereafter. In addition, Lender shall be entitled to all
the remedies provided by law, the terms of the Secured Debt, this Security
Instrument and any related documents.
All remedies are distinct, cumulative and not exclusive, and the Lender
is entitled to all remedies provided at law or equity, whether or not expressly
set forth. The acceptance by Lender of
any sum in payment or partial payment on the Secured Debt after the balance is
due or is accelerated or after foreclosure proceedings are filed shall not
constitute a waiver of Lender’s right to require complete cure of any existing
default. By not exercising any remedy on
Mortgagor’s default, Lender does not waive Lender’s right to later consider the
event a default if it continues or happens again.
18. EXPENSES;
ADVANCES ON COVENANTS; ATTORNEYS’ FEES; COLLECTION COSTS. Except when prohibited by law, Mortgagor
agrees to pay all of Lender’s expenses if Mortgagor breaches any covenant in
this Security Instrument. Mortgagor will
also pay on demand any amount incurred by Lender for insuring, inspecting,
preserving or otherwise protecting the Property and Lender’s security
Interest. These expenses will bear
interest from the date of the payment until paid in full at the highest
interest rate in effect as provided in the terms of the Secured Debt. Mortgagor agrees to pay all reasonable costs
and expenses incurred by Lender in collecting, enforcing or protecting Lender’s
rights and remedies under this Security Instrument. This amount may include, but is not limited
to, collection agency fees or attorneys’ fees, but not both, and other legal
costs end expenses incurred by Lender in exercising any remedy under this loan
or under the law, for all persons other than salaried employees of Lender. This Security instrument shall remain in
effect until released.
19. ENVIRONMENTAL
LAWS AND HAZARDOUS SUBSTANCES. As used in this section, (1) Environmental
Law means, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA, 42 U.S.C. 9601 et seq.), all other
federal, state and local laws, regulations, ordinances, court orders, attorney
general opinions or interpretive letters concerning the public health, safety,
welfare, environment or a hazardous substance; and (2) Hazardous Substance
means any toxic, radioactive or hazardous materiel, waste, pollutant or
contaminant which has characteristics which render the substance dangerous or
potentially dangerous to the public health, safety, welfare or
environment. The term includes, without
limitation, any substances defined as “hazardous material,” “toxic substances,”
“hazardous waste,” “hazardous substance” or “regulated substance” under any
Environmental Law.
Mortgagor represents,
warrants and agrees that except as disclosed in a Phase I report provided to
Lender:
A. Except
as previously disclosed and acknowledged in writing to Lender, no Hazardous
Substance has been, is, or will be located, transported, manufactured, treated,
refined, or handled by any person on, under or about the Property, except in
the ordinary course of business and in strict compliance with all applicable
Environmental Law.
B. Except
as previously disclosed and acknowledged in writing to Lender, Mortgagor has
not and will not cause, contribute to, or permit the release of any Hazardous
Substance on the Property.
C. Mortgagor
will immediately notify Lender if (1) a release or threatened release of
Hazardous Substance occurs on, under or about the Property or migrates or
threatens to migrate from nearby property; or (2) there is a violation of any
Environmental Law concerning the Property.
In such an event, Mortgagor will take all necessary remedial action in
accordance with Environmental Law.
D. Except
as previously disclosed and acknowledged in writing to Lender, Mortgagor has no
knowledge of or reason to believe there is any pending or threatened investigation, claim,
or proceeding of any kind relating to
(1) any Hazardous
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Substance located on,
under or about the Property; or (2) any violation by Mortgagor or any tenant of
any Environmental Law. Mortgagor will
immediately notify Lender in writing as soon as Mortgagor has reason to believe
there is any such pending or threatened investigation, claim, or proceeding. In such an event, Lender has the right, but
not the obligation, to participate in any such proceeding including the right
to receive copies of any documents relating to such proceedings.
E. Except
as previously disclosed and acknowledged in writing to Lender, Mortgagor and
every tenant have been, are and shall remain in full compliance with any
applicable Environmental Law.
F. Except
as previously disclosed and acknowledged in writing to Lender, there are no
underground storage tanks, private dumps or open wells located on or under the
Property and no such tank, dump or well will be added unless Lender first
consents in writing.
G. Mortgagor
will regularly inspect the Property, monitor the activities and operations on
the Property, and confirm that all permits, licenses or approvals required by
any applicable Environmental Law are obtained and complied with.
H. Mortgagor
will permit, or cause any tenant to permit, Lender or Lender’s agent to enter
and inspect the Property and review all records at any reasonable time to
determine (1) the existence, location and nature of any Hazardous Substance on,
under or about the Property; (2) the existence, location, nature, and magnitude
of any Hazardous Substance that has been released on, under or about the
Property; or (3) whether or not Mortgagor and any tenant are in compliance with
applicable Environmental Law.
I. Upon
Lender’s request and at any time, Mortgagor agrees, at Mortgagor’s expense, to
engage a qualified environmental engineer to prepare an environmental audit of
the Property and to submit the results of such audit to Lender. The choice of the environmental engineer who
will perform such audit is subject to Lender’s approval.
J. Lender
has the right, but not the obligation, to perform any of Mortgagor’s
obligations under this section at Mortgagor’s expense.
K. As
a consequence of any breach of any representation, warranty or promise made in
this section, (1) Mortgagor will indemnify and hold Lender and Lender’s
successors or assigns harmless from and against all losses, claims, demands,
liabilities, damages, cleanup, response and remediation costs, penalties and
expenses, including without limitation all costs of litigation and attorneys’
fees, which Lender and Lender’s successors or assigns may sustain; and (2) at
Lender’s discretion, Lender may release this Security Instrument and in return
Mortgagor will provide Lender with collateral of at least equal value to the
Property secured by this Security Instrument without prejudice to any of Lender’s
rights under this Security Instrument.
L. Notwithstanding
any of the language contained in this Security Instrument to the contrary, the
terms of this section shall survive any foreclosure or satisfaction of this
Security Instrument regardless of any passage of title to Lender or any
disposition by Lender of any or all of the Property. Any claims and defenses to the contrary are
hereby waived.
20. CONDEMNATION. Mortgagor will give Lender prompt notice of
any pending or threatened action, by private or public entities to purchase or
take any or all of the Property through condemnation, eminent domain, or any
other means. Mortgagor authorizes Lender
to intervene in Mortgagor’s name in any of the above described actions or
claims. Mortgagor assigns to Lender the
proceeds of any award or claim for damages connected with a condemnation or
other taking of all or any part of the Property. Such proceeds shall be considered payments
and will be applied as provided in this Security Instrument. This assignment of proceeds is subject to the
terms of any prior mortgage, deed of trust, security agreement or other lien
document.
21. INSURANCE. Mortgagor agrees to maintain insurance as
follows:
A. Mortgagor
shall keep the Property insured against loss by fire, flood, theft and other
hazards and risks reasonably associated with the Property due to its type and
location. This insurance shall be
maintained in the amounts and for the periods that Lender requires. What Lender requires pursuant to the preceding
two sentences can change during the term of the Secured Debt. The insurance carrier providing the insurance
shall be chosen by Mortgagor subject to Lender’s approval, which shall not be
unreasonably withheld. If Mortgagor
fails to maintain the coverage described above, Lender may, at Lender’s option,
obtain coverage to protect Lender’s rights in the Property according to the
terms of this Security Instrument.
All insurance policies
and renewals shall be acceptable to Lender and shall include a standard “mortgage
clause” and, where applicable, “loss payee clause.” Mortgagor shall immediately notify Lender of
cancellation or termination of the Insurance.
Lender shall have the right to hold the policies and renewals. If Lender requires, Mortgagor shall
immediately give to Lender all receipts of paid premiums and renewal notices. Upon loss, Mortgagor shall give immediate
notice to the insurance carrier and Lender.
Lender may make proof of loss if not made immediately by Mortgagor.
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Unless
otherwise agreed in writing, all insurance proceeds shall be applied to
restoration or repair of the Property or to the Secured Debt, whether or not
then due, at Lender’s option. Any
application of proceeds to principal shall not extend or postpone the due date
of scheduled payment nor change the amount of any payment. Any excess will be paid to the
Mortgagor. If the Property is acquired
by Lender, Mortgagor’s right to any insurance policies and proceeds resulting
from damage to the Property before the acquisition shall pass to Lender to the
extent of the Secured Debt immediately before the acquisition.
B. Mortgagor agrees to maintain
comprehensive general liability insurance naming Lender as an additional
insured in an amount acceptable to Lender, insuring against claim, arising from
any accident or occurrence in or on the Property.
C. Mortgagor agrees to maintain rental loss
or business interruption insurance, as required by Lender, in an amount equal
to at least coverage of one year’s debt service, and required escrow account
deposits (if agreed to separately in writing), under a form of policy
acceptable to Lender.
22. ESCROW FOR TAXES AND
INSURANCE. Unless otherwise provided in a separate
agreement, Mortgagor will not be required to pay to Lender funds for taxes and
insurance in escrow.
23. FINANCIAL REPORTS AND
ADDITIONAL DOCUMENTS. Mortgagor will provide to Lender upon
request, any financial statement or information Lender may deem reasonably
necessary. Mortgagor agrees to sign,
deliver, and file any additional documents or certifications that Lender may
consider necessary to perfect, continue, and preserve Mortgagor’s obligations
under this Security Instrument and Lender’s lien status on the Property.
24. JOINT AND INDIVIDUAL
LIABILITY; CO-SIGNERS; SUCCESSORS AND ASSIGNS BOUND.
All duties under this Security Instrument are joint and individual. If Mortgagor signs this Security Instrument
but does not sign an evidence of debt, Mortgagor does so only to mortgage Mortgagor’s
interest in the Property to secure payment of the Secured Debt and Mortgagor
does not agree to be personally liable on the Secured Debt. If this Security Instrument secures a
guaranty between Lender and Mortgagor, Mortgagor agrees to waive any rights
that may prevent Lender from bringing any action or claim against Mortgagor or
any party indebted under the obligation.
These rights may include, but are not limited to, any anti-deficiency or
one-action laws. Mortgagor agrees that
Lender and any party to this Security Instrument may extend, modify or make any
change in the terms of this Security Instrument or any evidence of debt without
Mortgagor’s consent. Such a change will
not release Mortgagor from the terms of this Security Instrument. The duties and benefits of this Security
Instrument shall bind and benefit the successors and assigns of Mortgagor and
Lender.
25. APPLICABLE LAW;
SEVERABILITY; INTERPRETATION. This
Security Instrument is governed by the laws of the jurisdiction in which Lender
is located, except to the extent otherwise required by the laws of the
jurisdiction where the Property is located.
This Security Instrument is complete and fully integrated. This Security Instrument may not be amended
or modified by oral agreement. Any
section in this Security Instrument, attachments, or any agreement related to
the Secured Debt that conflicts with applicable law will not be effective,
unless that law expressly or impliedly permits the variations by written
agreement. If any section of this
Security Instrument cannot be enforced according to its terms, that section
will be severed and will not affect the enforceability of the remainder of this
Security Instrument. Whenever used, the
singular shall include the plural and the plural the singular. The captions and headings of the sections of
this Security Instrument are for convenience only and are not to be used to
interpret or define the terms of this Security Instrument. Time is of the essence in this Security
Instrument.
26. NOTICE.
Unless otherwise required by law, any notice shall be given by
delivering it or by mailing it by first class mall to the appropriate party’s
address on page 1 of this Security Instrument, or to any other address
designated in writing. Notice to one
mortgagor will be deemed to be notice to all mortgagors.
27. WAIVERS.
Except to the extent prohibited by law, Mortgagor waives all
appraisement, homestead exemption, and redemption rights relating to the
Property. However, the waiver of
redemption is not applicable to that portion of the Property that covers
agricultural land or a single or two-family dwelling owned by or held in trust
for a natural parson.
28. U.C.C. PROVISIONS.
If checked, the following are applicable to, but do not limit, this
Security Instrument:
o Construction Loan. This Security Instrument secures an
obligation incurred for the construction of an improvement on the Property.
x Fixture Filing. Mortgagor grants to Lender a security
interest in all goods that Mortgagor owns now or in the future and that are or
will become fixtures related to the Property.
7
BOOK: 571 Page: 789
o Crops; Timber; Minerals; Rents,
Issues and Profits. Mortgagor
grants to Lender a security interest in all crops, timber and minerals located
on the Property as well as all rents, issues, and profits of them including,
but not limited to, all Conservation Reserve Program (CRP) and Payment in Kind
(PIK) payments and similar governmental programs (all of which shall also be
included in the term “Property”).
o Personal Property. Mortgagor grants to Lender a security
interest in all personal property located on or connected with the Property,
including all farm products, inventory, equipment, accounts, documents,
instruments, chattel paper, general intangibles, and all other items of
personal property Mortgagor owns now or in the future and that are used or
useful in the construction, ownership, operation, management, or maintenance of
the Property (all of which shall also be included in the term “Property”). The term “personal property” specifically
excludes that property described as “household goods” secured in connection
with a “consumer” loan as those terms are defined in applicable federal
regulations governing unfair and deceptive credit practices.
o Filing As Financing Statement. Mortgagor agrees and acknowledges that this
Security Instrument also suffices as a financing statement and any carbon,
photographic or other reproduction may be filed of record for purposes of Article 9
of the Uniform Commercial Code.
29. OTHER TERMS.
If checked, the following are applicable to this Security Instrument:
o Line of Credit. The Secured Debt includes a revolving line of
credit provision. Although the Secured
Debt may be reduced to a zero balance, this Security Instrument will remain in
affect until released.
o Agricultural Property. Mortgagor covenants and warrants that the
Property will be used principally for agricultural or farming purposes and that
Mortgagor is an individual or entity allowed to own agricultural land as
specified by law.
o Purchase Money Mortgage. The Secured Debt includes money which is used
in whole or in part to purchase the Property.
o Separate Assignment. The Mortgagor has executed or will execute a
separate assignment of leases and rents.
If the separate assignment of leases and rents is properly executed and
recorded, then the separate assignment will supersede this Security Instrument’s
“Assignment of Leases and Rents” section.
o Additional Terms.
30. WAIVER OF JURY TRIAL.
To the extent not prohibited by law, Mortgagor and Lender knowingly and
intentionally waive the right, which the party may have, to a trial by jury
with respect to any litigation arising from the Secured Debt, or any other
agreement executed in conjunction with the Evidence of Debt and this
Mortgage. Mortgagor and Lender each
acknowledge that this section has either been brought to the attention of each
party’s legal counsel or that each party had the opportunity to do so.
8
Book: 571 Page: 790
SIGNATURES: By signing below, Mortgagor agrees to the
terms and covenants contained in this Security Instrument and in any
attachments. Mortgagor also acknowledges
receipt of a copy of this Security Instrument on the date stated on page 1.
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Entity
Name:
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MGP
INGREDIENTS, INC.
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Entity
Name:
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/s/ Timothy Wl Newkirk
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(Signature)
Timothy W. Newkirk, Pres. & CEO
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(Date)
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(Signature)
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(Date)
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(Signature)
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(Date)
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(Signature)
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(Date)
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ACKNOWLEDGMENT:
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STATE
OF ,
COUNTY OF )
ss.
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(Individual)
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This
Instrument was acknowledged before me this
day of
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by
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My
commission expires:
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(Notary Public)
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STATE
OF KANSAS, COUNTY OF ATCHISON) ss.
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(Business or Entity Acknowledgment)
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This
Instrument was acknowledged before me this 31st day of March 2009 by Timothy
W. Newkirk, President & CEO (Title(s)) of MGP
INGREDIENTS, INC. (Name of Business or Entity) a Kansas Corporation on behalf of the business or entity.
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My
commission expires: 9-1-12
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/s/ Donald E. Bell
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(Notary Public)
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9
Book: 571 Page: 791
LEGAL
DESCRIPTION
SCHEDULE “A”
MARCH 31, 2009
Tract
1: The North One Hundred Ten feet (N.
110') of Lots Eleven (11) to Twenty-one (21) inclusive, in Block Thirty-Two
(32), L.C. Challiss Addition to the City of Atchison, Atchison County, Kansas,
According to the Plat thereof on file and of record in the office of the
register of deeds of said Atchison County, including the following portions of
vacated street adjacent thereto, viz.: The
vacated South Eleven and One half feet (S. 11 1/2') of Main Street from the
center of 11th street to the East line of Lot Eleven (11) in said Block and the
vacated portion of 11th Street from Main Street to the South line of said 110'
foot strip.
Tract
2: The North One Hundred Ten feet (N.
110') of Lots One (1) to Twenty-four (24), inclusive, in Block Forty-one
(41), L. C. Challiss Addition to the City of Atchison, Atchison County, Kansas,
According to the Plat thereof on file and of record in the office of the
register of deeds of said Atchison County, including the following portions of
vacated streets and alleys adjacent thereto, viz: The vacated alley from Main Street to the
South line of said 110 foot strip between Lots Nineteen (19) and Twenty (20) in
said Block Forty-One (41), the vacated South Eleven and One-half (11 1/2) feet
of Main Street from the center of 11th Street to the Center of 12th Street, The
vacated West half of 11th Street from Main Street to the South line of said 110
foot strip and the vacated East half of 12th Street from Main Street to the
South line of said 110 foot strip.
Tract
3: 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 track, as located in August 1988 with the
East Right-of-Way line of Leonard Street, a public street; thence along the
East Right-of-Way line of said Leonard Street South 394.00 feet to the
Northwest corner of the Kermit Fairbanks 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 John Selbach Road, being corner 3 marked by a 1/2" iron bar; thence traversing
along the Northerly Right-of-Way line of said John Selbach 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 8, marked by a 1/2" iron bar, said corner 6 being 740.27 feet S0°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 938.82 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.
