Exhibit 4.8.2
State of Kanasa, Atchison
County SS
Marlene Wagner, Register of
Deeds
Book: 571 Page: 615-47
MORTGAGE , ASSIGNMENT OF LEASES,
SECURITY AGREEMENT
AND FIXTURE FILING FINANCING STATEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES, SECURITY AGREEMENT AND FIXTURE
FILING FINANCING STATEMENT made this 27 day of March,
2009, by MGP INGREDIENTS, INC., a Kansas
corporation, whose address is c/o Cray Business Plaza, 100 Commercial Street,
Atchison, Kansas 66002 (the “Mortgagor”), to
the CLOUD L. CRAY, JR. TRUST under
agreement dated October 25, 1983, whose address is 20045 266th Road,
Atchison, Kansas 66002 (the “Mortgagee”).
1. Granting of Property. Mortgagor, for and in consideration of the
debt and trust hereinafter described and created, and of ten Dollars and No
Cents ($10.00) paid to Mortgagor by Mortgagee, the receipt of which is hereby
acknowledged, hereby GRANTS, BARGAINS, REMISES, RELEASES, SELLS, CONVEYS and
CONFIRMS to Mortgagee, its successors and assigns forever, all of Mortgagor’s
estate, right, title and interest in, to and under, and grants to Mortgagee a
security interest in, any and all of the following described property which is
(except where the context otherwise requires) herein collectively called the “Property”, whether now owned or held or
hereafter acquired, such term also referring to any part or parcel hereof:
(a) all of the real estate and
property legally described in Exhibit “a”
attached hereto and by this reference made a part hereof (hereinafter called
the “Real Estate”); and
(b) all right, title and
interest of Mortgagor, including any after-acquired title or reversion, in and
to the beds of the ways, streets, avenues and alleys adjoining the Real Estate
and in and to any strips, gaps or gores adjoining the Real Estate on all sides
thereof; and
(c) all of the tenements,
hereditaments, easements, appurtenances, passages, waters, water rights, water
courses, riparian rights and other rights, liberties and privileges thereof now
or hereafter appertaining to the Real Estate, including any homestead or other
claim at law or in equity, any after-acquired title, franchises, licenses, and
any reversions and remainders thereof; and
(d) Mortgagor’s interest in all
buildings and improvements of every kind and description now or hereafter
erected or placed on the Real Estate (the “Improvements”);
all materials intended for construction, reconstruction, alterations and
repairs of the Improvements (whether stored or located on site or stored off
site), all of which materials shall be deemed to be included within the
Property hereby conveyed immediately upon the delivery thereof to the Real
Estate; all fixtures and articles of personal property now or hereafter owned
by Mortgagor and attached to or used in connection with Real Estate and Improvements
(and the lessee’s interest in any personal property leased by Mortgagor from
third parties), including but not limited to all furniture and furnishings,
apparatus, machinery, motors, elevators, fittings, radiators, gas ranges,
mechanical refrigerators, awnings, shades, screens, office equipment, blinds,
carpeting and other furnishings, and all plumbing, heating, lighting, cooking,
laundry, ventilating, refrigerating, incinerating, air conditioning, central
energy and sprinkler equipment and fixtures and appurtenances thereto; and all
renewals or replacements of any of the foregoing, whether or not the same are
or shall be attached to the Improvements; except that the foregoing shall not
include any trade fixtures, personal property or moveable equipment owned by
tenants occupying any part of the Property.
All of such personal property to be deemed to be real property and be a
part of the realty. This Mortgage is
hereby deemed to be as well a security agreement as well as a mortgage for the
purpose of creating hereby a security interest in the personal property
securing the indebtedness (hereafter defined in Section 3) for the benefit
of the Mortgagee; and
(e) all of the rents, issues,
proceeds and profits accruing or to accrue from the Real Estate or arising from
the use or enjoyment of all or any portion thereof or from any lease or
agreement pertaining thereto; and all right, title and interest of Mortgagor in
and to all leases of the Real Estate now or hereafter existing; including
without limitation all deposits made thereunder to secure performance by the
tenants of their obligations thereunder; and
(f) all goodwill, trademarks,
trade names, option rights, purchase contracts, books and records and general
intangibles of Mortgagor relating to the Real Estate or the Improvements
including, without limitation, all rights of Mortgagor under or with respect to
all accounts, contract rights, instruments, chattel paper and other rights of
Mortgagor for payment of money for property sold, rented or lent, for services
rendered, for money lent, or advances or deposits made, and any other
intangible property of Mortgagor related to the Real Estate or the
Improvements; and
(g) all rights, including all
copyrights, of Mortgagor to plans and specifications, designs, drawings and
other matters prepared for any construction on or renovation or alteration of
the Real Estate and Improvements; and
(h) all proceeds (including
claims or demands thereto) of the conversion, voluntary or involuntary, of any
of the foregoing into cash or liquidated claims, including without limitation
all proceeds of insurance (including unearned premiums) and condemnation awards
including interest thereon,
subject, however, to liens securing that certain Credit Agreement dated
as of May 5, 2008 (as amended from time to time), by and among Mortgagor,
commerce Bank, N.A., as Agent, Issuing Bank and Swingline Lender, and the
financial institutions party thereto, including that certain
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mortgage dated November 7, 2008 and recorded December 12,
2008 from Mortgagor to Commerce Bank, N.a., recorded under recording no. 41241,
in Book 560 at Page 19.
2. Security for Promissory Note; indebtedness. This Mortgage secures the payment of (a) the
Subordinated Secured Promissory Note (“Note”)
from Mortgagor to Mortgagee, dated this same date, in the original principal
amount of two Million and No/100 Dollars ($2,000,000.00); (b) all
indebtedness and obligations arising under the provisions of this Mortgage; (c) all
indebtedness and obligations arising pursuant to and any and all other
agreements or assignments securing the Note (hereinafter collectively the “Loan Documents”); (d) all indebtedness
and obligations arising pursuant to any instrument evidencing the advance of
additional sums at Mortgagee’s sole option, by Mortgagee to Mortgagor; (e) any
and all renewals or extensions of any such item of indebtedness or obligation
or any part thereof; (f) any future advances which may be made by Mortgagee
to Mortgagor, whether made to protect the security or otherwise, and whether or
not evidenced by additional promissory note or other evidences of indebtedness
(but nothing in this Mortgage shall be interpreted to require Mortgagee to make
any future advances); and (g) all interest due on all of the same (all of
the above are hereinafter collectively the “indebtedness”,
which term shall also include any part or portion thereof). Nothing in this Mortgage shall be construed
to obligate Mortgagee to make any renewals or additional loans or advances.
3. Warranty of Title.
Mortgagor warrants to Mortgagee good title to the Property and warrants
and agrees that the same is free from all liens except as set forth in Section 1
above; that Mortgagor has good and legal right, power and authority to so
convey the Property to Mortgagee; that Mortgagor and its successors in interest
will forever warrant and defend the title of the Property as represented above
and the estate and priority of this Mortgage against the lawful claims and
demands of all persons whomsoever claiming through Mortgagor; and that
Mortgagor will execute, acknowledge and deliver all and every such further
assurances to the Mortgagee of the title to all the Property. All of these covenants shall run with the
land.
4. Payment of the Note and indebtedness. Mortgagor agrees to pay promptly the
principal of and all interest on the Note and other indebtedness at the times
and in the manner provided in the Note and the other Loan Documents.
5. Maintenance and Repairs; Compliance with Laws.
(a) Mortgagor shall
(i) not permit, commit or suffer to exist any waste, impairment or
deterioration of the Property (except normal wear and tear); (ii) keep and
maintain the Property and every part thereof and the fixtures, machinery and
appurtenances in working condition; (iii) effect such repairs and make all
needed and proper replacements so that the Improvements, fixtures, equipment,
goods, machinery and appurtenances will at all times be in working condition; (iv) make
such repairs as Mortgagee may reasonably require so that the Property is in
working condition; (v) fully comply with all statutes, laws, ordinances,
regulations, requirements, orders or decrees relating to Property enacted or
imposed by any federal, state or municipal authority, including courts and
administrative agencies of competent jurisdiction; (vi) observe and fully
comply with all conditions and requirements necessary to preserve and extend
any and all rights, licenses, permits (including but not limited to zoning
variances, special
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exceptions and nonconforming uses),
privileges, franchises and concessions which are applicable to the Property or
which have been granted to or contracted for by Mortgagor in connection with
any existing or presently contemplated use of the Property; and (vii) permit
Mortgagee or its agents, at all reasonable times, to enter upon and inspect the
Property, subject to the rights of tenants.
(b) Mortgagee shall
have the right, at any time and from time to time, to engage an independent
party to determine whether the Property is being maintained so that it is in
working condition. If the maintenance is
determined to be inadequate, such party shall determine the estimated cost of
such repairs and replacements as are necessary to place the Property in working
condition, and Mortgagor shall promptly perform the repairs and
replacements. Mortgagor acknowledges
that upon such a determination the security of this Mortgage will be impaired
to the extent of the estimated cost of such repairs and replacements. In such event, Mortgagor shall also reimburse
Mortgagee for the reasonable costs of such inspection, and the same shall be a
part of the indebtedness secured hereby.
If the independent party determines the Property is in working
condition, then the inspection shall be at Mortgagee’s expense.
6. Taxes. Mortgagor
agrees to:
(a) pay, before
delinquency and before any penalty for nonpayment attaches thereto, all taxes,
assessments, water rates, sewer rentals and other governmental, municipal or
public dues, charges, fines or impositions which are or may be levied against
the Property or any part thereof; to deliver to Mortgagee, at least ten (10) days
before delinquency, receipted bills evidencing payment therefor; or to pay, in
full, under protest and in the manner provided by statute, any tax, assessment,
rate, rental, charge, fine or imposition which Mortgagor may desire to contest;
and
(b) if the state
where the Property is located enacts any law imposing in any manner a tax upon
this Mortgage, Mortgagor shall immediately pay the indebtedness in full, except
that this provision will not apply in the event Mortgagor lawfully pays in full
any such tax or assessment; and
(c) keep the
Property free from statutory liens of every kind.
7. Casualty insurance.
(a) Mortgagor
agrees to keep the Improvements insured against loss or damage by, or abatement
of rental income resulting from, fire and such other hazards, casualties and
contingencies (including, but not limited to, vandalism, malicious mischief and
so-called “all risk” coverage, if available at a reasonable premium) in such
amounts as may reasonably be required by Mortgagee. Mortgagor will pay promptly when due any
premiums on such insurance. All such
insurance shall be carried with companies approved by Mortgagor and lawfully
operating in the state where the Property is located. The policies and renewals thereof or
certificates respecting such policies and renewals shall be deposited with and
held by Mortgagee, shall evidence full payment of the premiums therefor, and
shall (i) name Mortgagee
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as an additional insured, with a separation
of insureds clause, sometimes also called a “severability of insureds” or “cross
liability” clause; and shall include (ii) an agreed amount endorsement; (iii) a
replacement cost endorsement; (iv) an inflation guard endorsement; and (v) a
standard waiver of subrogation endorsement, if available, all in form
acceptable to Mortgagee. Mortgagor shall
not carry separate insurance, concurrent in kind or form and contributing in
the event of loss with any insurance required hereunder, unless Mortgagee is
included as a mortgagee thereunder pursuant to the type of clause described in
clause (i) above. All policies
shall provide for at least thirty (30) days’ advance written notice to
Mortgagee prior to any cancellation or material modification thereof.
(b) In the event of
a change in ownership of or occupancy of the Property (except for ordinary
changes in tenant occupancy), Mortgagor shall immediately deliver notice by
mail to all insurers.
(c) In the event of
a loss to the Property exceeding $500,000 in damage amount, Mortgagor will give
immediate notice to Mortgagee, whereupon Mortgagee may at its option assume the
right to settle and adjust any such claim under such policies without consent
of Mortgagor (although Mortgagee will endeavor to contact Mortgagor and obtain
Mortgagor’s consent to any such settlement or adjustment). Mortgagee shall notify Mortgagor of whether
it elects to take action within twenty (20) days after Mortgagee receives
Mortgagor’s notice. If Mortgagee sends
Mortgagor no such notification, then Mortgagor shall be allowed to adjust the
loss itself, with Mortgagee reserving the later right to take over the process
if it so elects. After deducting all
costs of collection, the proceeds of any insurance shall be applied, at the option
of Mortgagee, as follows: (i) as a credit upon any portion of the
indebtedness, as selected by Mortgagee; or (ii) to restoring the
Improvements, at the direction of Mortgagor.
If Mortgagor is not then in default under any of the Loan Documents,
Mortgagee shall allow the proceeds to be applied as specified in alternative (ii) of
the above sentence, with any excess proceeds remaining after restoration of the
Improvements to be applied as specified in alternative (i).
(d) In the event
Mortgagee elects to allow insurance proceeds to be disbursed for restoration of
the Improvements (or such disbursement is required above), the insurance
proceeds shall be paid to Mortgagee for Mortgagee to hold and disburse in
accordance with this Section. Mortgagor
shall provide Mortgagee with a good faith estimate by a third party of the
costs of completing the work. If the
estimated cost of completing the work exceeds the amount of insurance proceeds,
then Mortgagor shall deposit with Mortgagee additional funds from Mortgagor or
other sources which shall be sufficient to make up the difference. The insurance proceeds shall be disbursed by
Mortgagee from time to time upon the Mortgagee being furnished with (i) satisfactory
evidence that the insurance proceeds, together with any additional funds which
may be provided by Mortgagor, continue to constitute sufficient amounts to
fully pay the estimated costs of completion of such work; and (ii) such
architect’s certificates, waivers of lien, contractor’ s sworn statements and
such other evidences of costs and of payment as the Mortgagee may reasonably
require and approve. Mortgagee may, in
any event, require that all plans and specifications for such restoration,
repair, replacement and rebuilding be submitted to and approved by the
Mortgagee prior to commencement of work.
No payment made prior to the final completion of the work shall exceed
ninety percent (90%) of the cost of the work performed. Funds other than proceeds of insurance shall
be disbursed prior to disbursement of
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insurance proceeds. Any insurance proceeds and other funds paid
over to the Mortgagee to be applied to the work shall be invested for the
account of the Mortgagor, in an interest bearing account with Mortgagee (or another
account or which shall be mutually satisfactory to both Mortgagee and
Mortgagor), and the interest earned on such account or instrument shall be held
in such account and applied in the same manner as the principal.
(e) In the event of
a foreclosure of this Mortgage or other transfer of title to the Property
extinguishing the indebtedness or the lien of this Mortgage, all right, title
and interest of Mortgagor in and to any insurance policies then in force shall
pass to and are hereby assigned by Mortgagor to the purchaser or grantee.
8. Public Liability insurance. Mortgagor agrees to carry and maintain
liability and indemnity insurance, including without limitation water damage
insurance and the so-called assumed and contractual liability coverage, in
forms, in such amounts and with such insurers as may be reasonably required
from time to time by Mortgagee.
Certificates of such insurance, evidencing full payment of the premiums,
shall be deposited with Mortgagee and shall contain provisions for thirty (30)
days’ written notice to Mortgagee prior to any cancellation or modification of
the policies.
9. Alterations, Removal and Demolition.
No Improvements shall be altered, except in the ordinary course of
business, or removed or demolished and no fixtures, equipment or appliances on,
in or about the Improvements having an aggregate value in excess of $50,000
shall be shall severed or removed, except in the ordinary course of business,
or sold or mortgaged, without the prior written consent of Mortgagee, which
shall not be unreasonably withheld. In
the event all or any part of the fixtures, appliances equipment or other goods
are demolished or destroyed, Mortgagor shall promptly replace the same with
similar fixtures and appliances at least equal in quality and condition to
those replaced, free from any security interest in or any encumbrance thereon
or reservation of title thereto except as noted in paragraph 1 (however, if any
such items were originally leased or encumbered, the replacements may be so
leased or encumbered).
10. Mechanic’s Liens.
(a) Mortgagor will
keep the Property free from any mechanic’s liens, other statutory liens or
claims, and any other claims of all persons supplying labor or materials which
enter into the construction, alteration, repair or replacement of any and all
Improvements.
(a) Notwithstanding
the above provisions, Mortgagor shall have the right to contest any such lien
or claim of any person supplying such labor or materials. However, within thirty (30) days after the
filing of any mechanic’s lien or other statutory claim which Mortgagor may
desire to contest, Mortgagor shall furnish Mortgagee with cash, a bond (in
statutory form or such other form as Mortgagee may find reasonably
satisfactory), an irrevocable unconditional letter of credit in favor of
Mortgagee, or other security as Mortgagee may find reasonably satisfactory, in
an amount equal to one and one half times the amount of such lien. Mortgagee may also require an endorsement to
its mortgagee policy of title insurance insuring over such lien. Any such
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contest shall not otherwise create or result
in a failure on the part of Mortgagor to comply with the terms, provisions and
conditions hereof.
(b) Mortgagor shall
in any event, including under the circumstances described in the above
subsection, pay in full any such mechanic’s lien or other statutory lien or
claim prior to any foreclosure of the same or other event which would
jeopardize Mortgagor ‘s title to the Property or the lien of this Mortgage.
11. Documentary Stamps. If at any time the United States government,
or any other governmental authority, requires internal revenue or other
documentary stamps hereon or on the Note or any of the other Loan Documents, or
requires payment of an interest equalization tax upon all or any part of the
indebtedness, then the indebtedness shall be and become due and payable at the
election of Mortgagee ninety (90) days after Mortgagee mails a notice of such
election to Mortgagor. However,
Mortgagee shall have no such election and the Note and this Mortgage shall
remain in effect if Mortgagor lawfully may pay for such stamps or such tax and
does in fact pay such tax when the same is due and payable. Mortgagor further agrees to deliver to Mortgagee,
at any time upon written demand, evidence of citizenship and such other
evidence as may be required by any government agency having jurisdiction, in
order to determine whether the obligation secured hereby is subject to or
exempt from any such tax.
12. Indemnification of Mortgagee Against Costs. Mortgagor agrees to save Mortgagee harmless
from all costs and expenses, including reasonable attorneys’ fees and expenses
and all costs of a title search and preparation of a survey, incurred by reason
of any action, suit, proceeding, hearing, motion or application before any
court or administrative body (including an action to foreclose or to collect
the indebtedness) in and to which Mortgagee may be or become a party by reason
of this Mortgage, including but not limited to condemnation, bankruptcy,
probate and administration proceedings, as well as any other of the foregoing
in which a proof of claim is by law required to be filed or in which it becomes
necessary to defend or uphold the terms of this Mortgage. All funds paid or expended by Mortgagee in
that regard, together with interest thereon from date of such payment at the
rate set forth in the Note, shall be a part of the indebtedness and shall upon
notice to Mortgagor be immediately due and payable by Mortgagor to the
Mortgagee. Any amounts not paid within
ten (10) days after a statement therefor has been sent to Mortgagor, shall
earn interest at the Default Rate stated in the Note, until the same is paid.
13. Eminent Domain.
(a) All compensation,
proceeds and awards paid to or received by Mortgagor in any taking by eminent
domain or conveyance in lieu thereof that may affect all or any part of or
interest in the Property (whether permanently or temporarily), including
severance and consequential damages and damages from a change in the grade of
any street, are hereby assigned to Mortgagee subject to the terms hereof. Mortgagor hereby appoints Mortgagee as its
attorney-in-fact, coupled with an interest, to collect and receive the proceeds
thereof and to give proper receipts therefor.
Mortgagor authorizes and empowers Mortgagee, as such attorney-in-fact,
at Mortgagee’s option, on behalf of Mortgagor (notwithstanding the fact that
the indebtedness may not then be due and payable or that the indebtedness is
otherwise adequately
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secured), to adjust or join with Mortgagor in
adjusting or compromising the claim for any such compensation, proceeds or
awards. After deducting all costs of
collection, such compensation, proceeds and awards shall be applied, at the
option of Mortgagee, as follows: (i) as
a credit upon any portion of the indebtedness, as selected by Mortgagee; or (ii) to
restoring the Improvements, at the direction of Mortgagor. If Mortgagor is not then in default under any
of the Loan Documents, Mortgagee shall allow the proceeds to be applied as
specified in alternative (ii) of the above sentence, with any excess
proceeds remaining after restoration of the Improvements to be applied as specified
in alternative (i).
(b) In the event
Mortgagee elects not to apply such compensation, proceeds or awards to the
indebtedness (or such application is not permitted above), Mortgagee shall
release any such amounts in the same manner and under the same conditions as
are specified above for the disbursement of insurance proceeds received in the
event of casualty loss to the Property.
(c) Mortgagor
agrees to give Mortgagee immediate notice of the actual or threatened
commencement of any such eminent domain proceeding, and agrees to promptly send
to Mortgagee copies of any and all papers served or received by Mortgagor in
connection with any such proceedings.
Mortgagor also agrees to make, execute and deliver to Mortgagee at any
time or times, upon request, free, clear and discharged of any encumbrance of
any kind whatsoever, any and all further assignments and/or other instruments
which are deemed necessary by Mortgagee for the purpose of validly and
sufficiently assigning to Mortgagee all such compensation, proceeds and awards
to Mortgagee.
14. Advances by Mortgagee to Protect Security.
(a) Upon default by
Mortgagor in performance of any of the terms, covenants or conditions in this
Mortgage, or upon a default of any party obligated under the Note or other Loan
Documents in the performance of any terms, covenants or conditions in such
documents, Mortgagee may, at its option and whether or not it elects to declare
the indebtedness due and payable, pay such amounts and take such actions as
Mortgagee may deem necessary or appropriate to cure the default or protect the
value of the security for the Note.
Mortgagee may take such actions and make such payments without the same
being a waiver of any other remedy. In
connection with any such advance, Mortgagee, at its option, may and is hereby
authorized to obtain a report of title prepared by a title insurance company,
the cost of which shall be paid by Mortgagor upon demand. Any amounts so paid by Mortgagee, all costs
incurred by Mortgagee under the authorizations contained in this Section, and
any other costs, charges or expenses incurred by Mortgagee in the protection of
the Property, with interest at the Default Rate stated in the Note, shall be
payable by Mortgagor to Mortgagee upon notice, and shall be additional
indebtedness secured by this Mortgage.
(b) In making any
payment authorized above relating to taxes, assessments, water rates, sewer
rentals and other governmental or municipal charges, fines, impositions or
liens, Mortgagee may rely upon any bill, statement or estimate procured from
the appropriate public office without inquiry into the accuracy of the bill,
statement or estimate, and without inquiring into the validity of any tax,
assessment, sale, forfeiture, tax lien or title or claim
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thereof.
Mortgagee, in making such a payment relating to any apparent or
threatened adverse title, lien, statement of lien, encumbrance, claim or
charge, shall be the sole judge of the legality or validity of same.
(c) Notwithstanding
the above provisions, in the event that Mortgagee wishes to pay under authority
of this Section, any lien, charge
or other such amount, Mortgagee shall give to Mortgagor at least ten (10) days’
notice prior to making any such advances, except in the case of emergency or
where the prior conduct of Mortgagor indicates that there is not a reasonable
possibility that Mortgagor would respond to the notice. If Mortgagor, after receiving such notice, (i) advises
Mortgagee in writing within five (5) days after the date of the notice of
Mortgagor’s intent to contest its obligation to pay the liens, charges or other
amounts which Mortgagee proposes to pay; and (ii) Mortgagor furnishes
Mortgagee with cash, a bond, an irrevocable unconditional letter of credit or
other security satisfactory to Mortgagee in an amount equal to one and one-half
times the amount of such contested lien or charge, then in such event Mortgagee
shall not advance payment of such contested amounts. In any event, if Mortgagor contests the
payment of such amounts, the amounts shall be paid prior to any foreclosure of
the lien or charge and prior to any other event which would jeopardize
Mortgagor’s title to the Property or the lien of this Mortgage.
15. Mortgage Subordinate at Option of Mortgagee. At the sole option of Mortgagee, this
Mortgage shall become subject and subordinate, in whole or in part, to any or
all leases of all or any part of the Property, upon the execution and recording
by Mortgagee of a unilateral declaration to that effect. The subordination shall apply only with
respect to the leases specifically described by Mortgagee, shall not apply to
other interests in the Property, and specifically shall not apply to the
priority of this Mortgage over or any judgment liens, mechanic’s liens, tax
liens or other liens or charges affecting the Property after the date
hereof. In addition, the subordination
to such leases shall in no manner apply with respect to Mortgagee’s entitlement
to any insurance proceeds or any payments, awards or compensation made in any
eminent domain or condemnation proceedings or any payment received as a result
of a conveyance in lieu of condemnation.
16. Proceeds Subrogated. If any indebtedness advanced by Mortgagee to
Mortgagor is used, directly or indirectly, to pay off, discharge or satisfy, in
whole or in part, any prior lien or encumbrance upon the Property or any part
thereof, then Mortgagee shall be subrogated to any security held by the holder
of such other lien or encumbrance, notwithstanding any release of the same from
the public records.
17. Partial Releases by Mortgagee. Mortgagee, without notice to Mortgagor,
without regard to the consideration, if any, paid therefor, and notwithstanding
the existence at that time of any inferior deeds of trust or other liens on the
Property, may release any part of the Property or other security described in
the Loan Documents and may release any person liable for any indebtedness
without in any way affecting the priority of this Mortgage, to the full extent
of the remaining indebtedness, on the remainder of the Property. Mortgagee may also agree with any party
obligated for the indebtedness or having any interest in the Property or other
security for the indebtedness to extend the time for payment of any part or all
of the indebtedness or to modify the terms for the payment thereof, or take
additional security for the payment of the
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indebtedness. No such action or agreement will release or
impair the lien or effect of this Mortgage or bar Mortgagee from exercising any
right, power or privilege granted in this Mortgage or in any of the other Loan
Documents, in the event of any default or any subsequent default.
18. Usury. Nothing
contained in this Mortgage or the other Loan Documents shall be construed or
shall so operate either presently or prospectively to require Mortgagor to pay
interest at a rate greater than the rate which is now lawful for transactions
of this kind in the state identified on the first page, or require Mortgagor to
make any payment or do any act contrary to law.
If the interest rate exceeds any applicable law relating to interest,
then this Mortgage and the Loan Documents shall be interpreted and construed to
require payment of interest only to the extent of such maximum lawful rate, not
to exceed the rate set forth in the Note or in this Mortgage, where applicable.
19. Actions and Proceedings. Mortgagee shall have the right (but not the
obligation) to appear in and defend any proceeding or action with respect to
the Property, and to bring any action or proceeding respecting the Property as
Mortgagee reasonably deems advisable, either in its own name or in the name of
and on behalf of Mortgagor.
20. Sale of Property
(a) Mortgagor
understands that Mortgagee, in making the loan evidenced by the Note, is
relying to a material extent upon the business expertise and net worth of
Mortgagor and upon its continuing interest in the Property. Accordingly,
Mortgagor shall not, without Mortgagee’s prior written consent (which
Mortgagee may withhold in its sole and unfettered discretion), either directly
or indirectly, voluntarily or involuntarily:
(i) sell, assign,
transfer, convey, or dispose of the Property, by installment sale contract or
otherwise, or grant any option for the purchase of the Property or any part
thereof;
(ii) lease the
Property, other than individual tenant leases granted in the ordinary course of
business, or lease the Property (whether or not in the ordinary course of
business) with an option to purchase;
(iv) further
encumber the Property, voluntarily or involuntarily, or by operation of law, or
allow to exist against the Property any lien, mortgage, deed of trust, or other
financial encumbrance; or
(v) create or allow
the creation of any lien or security interest in any personal property,
fixtures or equipment included within the Property, except as referred to in
paragraph 1.
(b) Any action described
in the above subsection shall be an Event of Default hereunder (as hereafter
defined), for which Mortgagee will be entitled to its remedies for default,
10
as provided herein. The word “Property”
as used herein shall have the full meaning earlier given, and specifically
shall include any parts or portions of the Property.
(c) Whether or not
Mortgagee’s consent has been obtained, Mortgagor shall give immediate written
notice to Mortgagee of any conveyance, transfer or change of ownership of the
Property or of any interest described in this Section.
21. Notices. Any notice required or permitted to be given
hereunder must be in writing and given (a) by depositing same in the
United States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested; (b) by delivering
the same in person to such party; (c) by transmitting a facsimile copy to
the correct facsimile phone number of the intended recipient; or (d) by
depositing the same into the custody of a nationally recognized overnight
delivery service addressed to the party to be notified. In the event of mailing, notices shall be
deemed effective three (3) days after posting; in the event of overnight
delivery, notices shall be deemed effective on the next business day following
deposit with the delivery service; in the event of personal service or
facsimile transmissions, notices shall be deemed effective when delivered. For purposes of notice, the addresses of the
parties shall be as set forth on the first page of this Mortgage. From time to time either party may designate
another or additional addresses for all purposes of this Mortgage by giving the
other party no less than ten (10) days’ advance notice of such change of
address in accordance with the notice provisions hereof.
22. Assignment of Leases, Rents and Profits.
(a) Subject to any
prior liens of lenders referred to in paragraph 1,Mortgagor hereby assigns,
transfers and conveys to Mortgagee, as primary security for repayment of the
Note and satisfaction of Mortgagor’s obligations under the Loan Documents, all
right, title and interest of Mortgagor in and to all leases affecting the
Property, including any occupancy or residency agreements or assisted living or
care agreements (all of the above are collectively the “Leases”) and all rents, income, receipts,
revenues, issues and profits from or due or arising out of the Property.
(b) Mortgagor (i) will
not execute any further assignment of any of its right, title or interest in
any Leases, rents, contracts and profits; (ii) will enforce the
performance and observance of the substantial and material covenants and
obligations of the tenants under any Leases; (iii) will not, except where
Mortgagor is the landlord and the tenant is in default thereunder, terminate or
consent to the cancellation or surrender of any Lease now existing or hereafter
to be made (except that any such Lease may be cancelled if promptly after the
cancellation Mortgagor as landlord enters into a new Lease with a new tenant
having a credit standing, in the reasonable judgment of Mortgagee, at least
equivalent to that of the tenant whose Lease was cancelled, on terms not less
favorable to Mortgagor than those contained in the cancelled Lease); (iv) will
not modify any such Lease where Mortgagor is the landlord to shorten the
unexpired Lease term decrease the amount of the rent and other charges payable
by the tenant thereunder; (v) will not accept prepayments of any
installments of rent to become due under any of Leases in excess of one month,
except prepayments in the nature of security for the performance of the lessees’
obligations thereunder; (vi) will not in any other manner impair the
11
value of the Property or the
security of this Mortgage; (vii) will observe and perform each and every
term to be observed or performed by Mortgagor pursuant to the terms of any
agreement or recorded instrument affecting or pertaining to the Property; and (viii) will
not permit any Lease to be subordinated to any deed of trust which is
subordinate to this Mortgage.
23. Restrictions and Other Private Property Interests.
(a) Mortgagor
represents and warrants that to the best of Mortgagor’s knowledge neither this
Mortgage, the Property, nor the contemplated use of the Improvements,
constitute a breach of, or a violation of, any covenants, conditions, easements
or restrictions, whether of record or not, affecting or binding upon the Property,
or alternatively that such breach or violation has been approved or waived by
all parties required by law to so approve or waive such breach or
violation. Mortgagor covenants and
agrees that it will take all action necessary to prevent any such breach or
violation from hereafter occurring, and defend and indemnify Mortgagee from any
consequences of such a breach or violation.
(b) Mortgagor shall
at all times faithfully and timely perform or cause to be performed all of the
terms, covenants and conditions on Mortgagor’s part to be performed, which are
contained in any restriction, agreement, easement, permit or other document
affecting the Property. Mortgagor
covenants and agrees that it will not waive or modify any of the material terms
of any of the restrictions, agreements, easements, permits or other
instruments, or the rights or easements created thereby, or cancel or surrender
same, or release or discharge any party thereunder or person bound thereby of
or from terms, covenants or conditions thereof, or permit the release or
discharge of any party thereunder, without the prior written consent of
Mortgagee. Mortgagor shall take all
necessary action to enforce the performance of all of the obligations of the
other parties to and the persons bound by such restrictions, agreements,
easements, or permits, or other documents.
(c) Mortgagor will
promptly send to Mortgagee copies of all notices, advices, demands, requests,
consents, statements, approvals, disapprovals, authorizations, determinations,
satisfactions, waivers, designations, refusals, confirmations or denials which
it shall give or receive under any of the aforesaid agreements, easements,
permits and other documents.
24. Changes in Zoning.
Mortgagor covenants not to initiate, join in, or consent to any change
in any zoning ordinance, private restrictive covenants, or other public or
private restriction changing, limiting or restricting the uses which may be
made of the Property, without the prior written consent of Mortgagee in each instance,
which consent shall not be unreasonably withheld if such change is not
inconsistent with the current use of the Property and does not in Mortgagee’s
sole judgment diminish the security for the indebtedness.
25. Covenants to Run with Land. All covenants contained in this Mortgage
shall run with the land until this Mortgage is released of record.
26. Default and Remedies.
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(a) Each of the
following occurrences shall be a default hereunder (an “Event of Default”):
(i) Failure of
Mortgagor to make any payment of interest or principal on the Note when the
same is due, whether at maturity or by acceleration or otherwise.
(ii) Failure of
Mortgagor within ten (10) days after the date of a written notice from
Mortgagee of such breach, to promptly and completely observe and perform each
and every other obligation, covenant and agreement contained in the Note, in
the Mortgage, or in any of the other Loan Documents. If the breach is intrinsically incapable of
being cured within such time, then in such case the breach shall constitute an
Event of Default only if Mortgagor does not (1) commence actions to cure
the breach within ten (10) days after the date of Mortgagee’s notice and (2) diligently
pursue the cure to completion thereafter.
Nothing in the preceding sentence, however shall be interpreted to
require Mortgagee to send a notice with regard to satisfaction by Mortgagor of
any requirements set forth herein pertaining to insurance or taxes.
(iii) Failure of
Mortgagor to promptly and completely observe and perform all of the terms,
covenants and conditions to be observed or performed by Mortgagor under any of
the other Loan Documents beyond the applicable grace periods specified therein,
if any.
(iv) A trustee,
receiver or liquidator of the Property or of Mortgagor is appointed by order of
a court of competent jurisdiction and the appointment is not withdrawn or the
party dismissed within thirty days of the date of the appointment.
(v) The filing by
any of the creditors of Mortgagor of a petition in bankruptcy against Mortgagor
or for the reorganization of Mortgagor pursuant to the Federal Bankruptcy Code
or any similar law, federal or state, and the same is not discharged within
sixty (60) days after the date of filing thereof.
(vi) Mortgagor takes
or permits any of the following actions: (1) files a petition in
bankruptcy or, for an arrangement, or for reorganization pursuant to the
federal Bankruptcy Code or any similar law, federal or state; (2) files a
petition or answer consenting to, or acquiescing in, a reorganization,
arrangement, adjustment, composition, liquidation, dissolution or similar
relief, under any present or future statute, law or regulation; (3) is
adjudicated as a bankrupt; (4) is determined to be insolvent by a decree
of a court of competent jurisdiction; (5) makes an assignment for the
benefit of creditors; (6) admits its inability to pay its debts generally
as they become due; or (7) consents to the appointment of a receiver or
receivers of all or any part of its assets.
(vii) The granting or
entry of a final judgment, order or decree for the payment of money against
Mortgagor, and Mortgagor’s failure to stay or discharge the same or cause it to
be stayed or discharged within thirty days after the date of a written notice
from Mortgagee, if in the judgment of Mortgagee the granting or entry adversely
affects Mortgagee’s security interest in the Property or Mortgagor’s ability to
manage and operate the Property.
13
(viii) The
continuation of a default (after the expiration of any applicable grace period)
under any security or loan document evidencing or securing any junior financing
to which Mortgagee has previously given its consent.
(ix) The
continuation of a default (after the expiration of any applicable grace period)
under any security or loan document evidencing or securing any senior financing
to which Mortgagee has previously given its consent.
(b) During any time
an Event of Default exists, Mortgagor will pay to Mortgagee, upon written
demand by Mortgagee, the entire principal of the Note then outstanding, and all
accrued and unpaid interest thereon, and any other amounts payable hereunder or
under any of the Loan Documents, and also interest at the default rate on the
then unpaid principal of the Note and on all amounts Mortgagor is required to
pay pursuant to any provision of this Mortgage or any of the Loan
Documents. In addition thereto,
Mortgagor shall pay such further amounts as shall be sufficient to cover the
reasonable costs and expenses of collection.
in the event Mortgagor fails to pay such amounts upon such demand,
Mortgagee shall be entitled and empowered, subject to the limitations, if any,
set forth herein, to institute such action or proceedings at law or in equity
as may be necessary or desirable to Mortgagee for the collection of the amounts
due, and may prosecute any such action or proceedings to judgment or final
decree. Mortgagee may enforce any such
judgment or final decree against Mortgagor and collect, out of the property of
Mortgagor wherever situated, as well as out of the Property in any manner
provided by law, monies adjudged or decreed to be payable.
(c) Mortgagee shall
be entitled to recover judgment against Mortgagor before, after or during any
proceedings for the foreclosure of this Mortgage, and the right of Mortgagee to
recover such judgment shall not be affected by any entry or sale hereunder, or
by the exercise of any other right, power or remedy for the enforcement of
Mortgagee’s remedies under this Mortgage. In case of proceedings against
Mortgagor in insolvency or bankruptcy, or any proceedings for Mortgagor’s
reorganization or involving the liquidation of Mortgagor’s assets, then
Mortgagee shall be entitled to prove the whole amount of principal and interest
due upon the Note and other indebtedness to the full amount thereof, without
deducting therefrom any proceeds obtained from the sale of the whole or any
part of the Property. However, in no
case shall Mortgagee receive from the aggregate amount of the proceeds of the
sale of the Property and the proceeds of any other actions a greater amount
than the amount of the indebtedness due from Mortgagor, including all
principal, interest, and reimbursements which constitute parts of the
indebtedness.
(d) During all
times during which an Event of Default exists, Lender shall have the following
rights and remedies:
(i) Lender may
declare the entire principal amount of the Note then outstanding, together with
accrued and unpaid interest thereon, and all other items of indebtedness
hereunder, to be due and payable immediately, even if the same are not then due
and payable.
14
(ii) Regardless of
whether Lender accelerates the indebtedness as authorized above, Lender in
person or by agent may (1) enter upon, take possession of, manage and
operate the Property; (2) make or enforce (or if the same be subject to
modification or cancellation, modify or cancel) any or all of the Leases and
Contracts (the capitalized terms as used in this Section shall have the same
meanings as such terms are used in the Assignment of Leases, Rents and Profits
recorded simultaneously herewith) upon such terms or conditions as Lender deems
proper; (3) sign new Leases and Contracts in the name of Lender or
Borrower, evict existing tenants, and fix or modify rents and payments under
Contracts; (4) make repairs and alterations and do any acts which Lender
deems proper to protect the security hereof; (5) without taking
possession, in its own name or in the name of Borrower, sue for or otherwise
collect and receive the Rents and Profits, including those past due and
unpaid. During the time of Lender’s
actions as permitted herein, Lender shall collect the Rents and Profits of the
Property and apply the same, less the costs and expenses of operation and
collection (including reasonable attorneys’ fees and expenses), to the
indebtedness, in such order as Lender may determine.
(iii) Upon request of
Lender, Borrower shall assemble and make available to Lender at the Real Estate
any of the Property which has been removed from the Real Estate. The entering upon and taking possession of
the Property, the collection of any Rents and Profits, and the application of
the same as provided herein, shall not operate to cure or waive any default
previously or subsequently occurring, or affect any notice of default delivered
by Lender hereunder, or invalidate any act done pursuant to any such notice.
(iv) Notwithstanding
possession of the Property by Lender or a receiver, and the collection, receipt
and application of Rents and Profits as described above, Lender shall be
entitled to exercise every right contained in this Mortgage or by law upon or
after the occurrence of a default. Any
of the actions described herein may be taken by Lender either in person or by
agent, with or without bringing any action, and may be taken regardless of
whether any notice of default or election to sell has been given hereunder, and
without regard to the adequacy of the security for the indebtedness.
(v) Lender shall be
entitled to the appointment of a receiver by a court having jurisdiction, who
shall be entitled without notice to take possession of and protect the Property,
operate the same, collect the Rents and Profits therefrom, and otherwise
exercise any rights or authority granted to Lender in this Mortgage. Lender’s right to the appointment of a
receiver shall continue regardless of the value of the Property as security for
the indebtedness or the solvency of any person or corporation liable for the
payment of such amount, and shall exist to the full extent provided by
law. Notwithstanding the appointment of
any receiver, liquidator or trustee for Borrower, or of any of its property, or
of the Property, Lender shall be entitled to retain possession and control of
all Property now or hereafter held under this Mortgage, including, but not
limited to, the Rents and Profits.
(vi) Lender may, at
its option, bring an action in any court of competent jurisdiction to foreclose
this instrument or to enforce any of the covenants and agreements hereof.
15
(vii) Lender may, at
its option, cause this Mortgage to be foreclosed in the manner prescribed by
law.
(viii) All of the remedies of
Lender hereunder or otherwise provided by law shall be concurrent and
cumulative, and may be exercised together or independently. Expenses incurred by Lender, including
reasonable attorneys’ fees and expenses, shall be additions to the indebtedness
secured hereby. The rights and powers in
this Section shall be irrevocable and shall continue after sale hereunder
if Borrower continues to have any redemption rights with respect to the
Property (to the extent redemption rights are permitted hereunder).
(ix) The failure of
Lender to exercise its right to accelerate the maturity of the indebtedness or
to exercise any remedies hereunder in any one or more instances, or acceptance
by Lender of partial payments, shall not constitute a waiver of any default or
extend or affect the grace period, if any, provided herein. Lender shall continue to have all of its
remedies as long as an Event of Default exists.
Acceleration of maturity, once claimed hereunder by Lender, may, at the
option of Lender, be rescinded by written acknowledgment to that effect to
Borrower by Lender, but the tender and acceptance of partial payments alone
shall not in any way affect or rescind such acceleration of maturity, nor extend
or affect the grace period, if any.
(x) No recovery of
any judgment by Lender and no levy of an execution under any judgment upon the
Property shall affect, in any manner or to any extent, the lien of this
Mortgage upon the Property, and any liens, rights, powers and remedies of
Lender shall continue unimpaired as before.
(xi) In exercising
the remedies herein described or taking any of the actions which are authorized
herein, Lender will be acting solely and exclusively as agent for Borrower in
attempting to realize the maximum return from the Property and in attempting to
obtain payment to Lender of the amounts which Lender is to receive pursuant to
the Note. The parties acknowledge that
in so doing, Lender will not be or be deemed to be an “owner” or “operator” of
the Property under any environmental statute, law, regulation or ordinance, and
will not be assuming any obligations of Borrower to fully comply with all such
statutes, laws, regulations or ordinances, as more particularly described in
this Mortgage. Borrower will
specifically defend and indemnify Lender against any such liability, cost, loss
or expense.
(xii) Should Lender
cause any of the Property to be sold as personal property, Lender may dispose
of any part thereof in any manner now or hereafter permitted by the Uniform
Commercial Code of the state of Illinois or in accordance with any other remedy
provided by law. Any such disposition
may be conducted by an employee or agent of Lender. Both Borrower and Lender shall be eligible to
purchase any part or all of such property at any such disposition. Any such disposition may be either public or
private as Lender may so elect, subject to the provisions of the Uniform
Commercial Code of Illinois. Expenses of
retaking, holding, preparing for sale, selling or the like shall include Lender’s
reasonable attorneys’ fees and legal expenses.
Upon such default Borrower, upon demand of Lender, shall assemble such
personal property and make it available to Lender at the Real Estate, which
Borrower and Lender agree is a place which is deemed reasonably convenient to
them. Lender shall give Borrower at
16
least five (5) days’
prior written notice of the time and place of any public sale or other disposition
of such property, or of the time at or after which any private sale or any
other intended disposition is to be made, and if such notice is sent to
Borrower in the manner notices are sent herein, it shall be deemed to
constitute reasonable notice to Borrower.
(xiii) Should there be
a foreclosure sale of the Property or any part thereof which is real property
or which Lender has elected to treat as real property, the Lender shall receive
the proceeds of said sale out of which Lender shall pay (a) the costs and
expenses of foreclosing this Mortgage, and a reasonable attorneys’ fee; (b) to
the Borrower, its endorsees or assigns, upon the usual vouchers therefor, any
money required to be paid by Borrower under this Mortgage including, without
limitation, money advanced for ground rents, taxes, insurance, repairs,
judgments upon statutory lien claims and any other advances hereunder and
interest thereon at the Default Rate as defined in the Note; (c) the
amount unpaid on the Note, together with the interest accrued thereon at the
Default Rate, and all charges provided for herein; (d) all the other
amounts secured by this Mortgage and (e) the balance of such proceeds, if
any, shall be paid to the Borrower. The
purchaser at any foreclosure sale shall not be obliged to look to the
application of the proceeds thereof. If
the Lender, at its option, shall set aside any declared acceleration of
maturity of the Note, the terms and provisions therein stated and the
covenants, terms and conditions in the Note and this Mortgage shall revive and
continue with the same force and effect as if such acceleration had not
occurred.
(xiv) The purchaser at any
foreclosure sale hereunder may disaffirm any easement granted or rental or
lease contract made in violation of any provision of this Mortgage, and may
take immediate possession of the Property free from, and despite the terms
of, such grant of easement and rental or
lease contract.
(xv) Borrower hereby
expressly waives any right which it may have to direct the order in which any
of the Property shall be sold in the event of any sale or sales pursuant
hereto.
(xvi) To the extent
permitted by law with respect to the indebtedness or any renewals or extensions
thereof, Borrower waives and renounces any and all homestead and exemption
rights; the benefit of all valuation and appraisement privileges; any rights
under stay or redemption statutes; and any moratoriums under or by virtue of
the constitution and laws of the state where the Property is located or of the
United States now existing or hereafter enacted.
27. Environmental Representations and Warranties of Mortgagor.
(a) Mortgagor
covenants, represents and warrants to Mortgagee that to its actual knowledge:
(i) The Property is
not being used to refine, produce, store, handle, transfer, process or
transport Hazardous Material or any pollutant or contaminate as those terms are
defined above or in the Comprehensive Environmental Response Compensation and
Liability Act (CERCLA), 42 U.S.C.A. § 9601 (14);
17
(ii) Mortgagor shall
not in the future use all or any part of the Property for the purpose of
refining, producing, storing, handling, transferring, processing, or
transporting any pollutants or contaminates or any Hazardous Material or
petroleum products in any manner which would result in a release or threatened
release which could require response under applicable Environmental
Regulations, nor shall Mortgagor permit or suffer any other party to use all or
any part of its Property for any purpose forbidden herein.
(iii) No violation of
any Environmental Regulations now exists regarding the Property.
(b) As used herein,
the term “Hazardous Material” means
any radioactive, hazardous, or toxic substance,
material, waste, chemical, or similar item, the presence of which on the
Property, or the discharge, emission, release, or threat of release of which on
or from the Property, is prohibited or otherwise regulated by any laws,
ordinances, statutes, codes, rules, regulations, orders, and decrees of the
United States, the State of , and all local or governmental or regulatory
authorities exercising jurisdiction over Mortgagor or the Property, or which
require special handling in collection, storage, treatment, or disposal by any
such laws or requirements. The term
Hazardous Material includes, but is not limited to, any material, substance,
waste or similar item which is now or hereafter defined as a hazardous
material, substance or term of similar meaning under the laws of the State of ,
the Federal Water Pollution Control Act (33 U.S.C. Section 1317), the
Federal Resource Conservation and Recovery Act (RCRA) (42 U.S.C. Section 6901,
et seq.), the Federal
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
and (SARA) (42 U.S.C. Section 9601, et seq.),
any rules or regulations adopted by any administrative agency, including,
but not limited to, the Environmental Protection Agency, the Department of
Transportation, and any similar state or local agency having jurisdiction over
the Property or the Hazardous Material, whether or not such rules and
regulations have the force of law. The term “Environmental
Regulations” as used herein means any federal, state or local laws,
statutes, codes, ordinances, regulations, requirements or rules relating
to any environmental matters, including the removal, handling, and disposal of
hazardous or toxic waste materials.
28. Environmental Covenants of Mortgagor.
(a) Mortgagor shall
furnish to the United States Environmental Protection Agency or any lawful authority
all information lawfully requested by them with respect to the operations of
the Property. However, nothing herein
shall operate to prevent Mortgagor from contesting any such information request
by all lawful means.
(b) Mortgagor shall
operate its business on the Property in a careful and prudent manner, and shall
require the tenants or occupants to avoid and prevent any “release,” as defined
in CERCLA § 9601 (22), of any Hazardous Material on or about the Property into
any waters or onto any lands, or air unless such release or disposal is
pursuant to and in compliance with all applicable Environmental Regulations.
18
(c) Mortgagor shall
give written notice to Mortgagee immediately upon Mortgagor’s acquiring
knowledge of the presence of any Hazardous Material on the Property or of any
Hazardous Material contamination thereon, with a full description thereof.
(d) Mortgagor shall
immediately advise Mortgagee in writing of any notices received by Mortgagor or
its agents, contractors, authorized representatives and employees, alleging
that the Property contains Hazardous Material or contamination thereof, or that
a violation or potential violation of any Environmental Regulation laws,
ordinances, rules or regulations exists on or at the Property, or because
of actions by Mortgagor, any tenants, or the agents of the same.
(e) Mortgagor shall
immediately advise Mortgagee in writing of all claims made or threatened by any
third party against Mortgagor, its agents, contractors, authorized
representatives and employees, or the Property relating to damage,
contribution, cost recovery compensation, loss or injury resulting from any
Hazardous Material pertaining to the Property.
(f) Mortgagor shall
immediately advise Mortgagee in writing upon Mortgagor’s acquiring knowledge of
any discovery by Mortgagor’s agents, contractors, authorized representatives or
employees, of any occurrence or condition on the Property or on any real
property adjoining or in the vicinity of the Property which does or could cause
the Property to contain Hazardous Material or otherwise be in violation of any
Environmental Regulations, or cause the Property to be subject to any
restrictions on the ownership, occupancy, transferability or use thereof under
any Environmental Regulations.
(g) At any time,
and from time to time, during the term of this Mortgage, Mortgagee may notify
Mortgagor in writing that it desires a site assessment or environmental audit (“Audit”) of the Property to be made. At any time thereafter Mortgagor shall cause
such an Audit to be made of the Property at Mortgagor’s sole expense. Such Audit(s) shall be performed in a
manner reasonably calculated to confirm and verify compliance with the
provisions of this Mortgage. Mortgagor
covenants to reasonably cooperate with the persons conducting the Audit to
allow entry and reasonable access to all portions of the Property for the
purpose of the Audit, to supply the auditors with all available historical and
operational information regarding the Property as may reasonably be requested
by the auditors, and to make available for meetings with the auditors
appropriate personnel and tenants having knowledge of the matters relevant to
the Audit. Mortgagor covenants to comply,
at its own cost and expense, with all recommendations contained in the Audit,
including any recommendation for additional testing and studies to detect the
presence of Hazardous Material, or to otherwise confirm and verify Mortgagor’s
compliance with the provisions of this Mortgage, to the extent required by
Mortgagee.
29. Mortgagor’s Obligations to Remedy Environmental Matters.
(a) In the event
any local governmental authority, any state or the federal government, or any
agency of either, including, but not
limited to, the United States Environmental Protection Agency, notifies
Mortgagor that an investigation is being or will be conducted regarding the
Property or that any “removal” or “remedial action” (as these terms are
19
defined in 42 U.S.C. §§ 9601
(23) and (24) (or successor legislation), or any clean-up operations of any
kind or nature are necessary to be performed on the Property, or in the event
any of such authorities commence, perform or complete any clean-up operation,
then Mortgagor shall notify Mortgagee thereof and the Mortgagor shall have the
right to contest, by any lawful means, (a) the determination of such
governmental authority that such clean-up operation is necessary, (b) the
means or methods of clean-up proposed, ordered or undertaken by such
governmental authority, (c) the extent of the clean-up proposed, ordered
or undertaken by such governmental authority, or (d) any other matter
respecting or relating to the clean-up proposed, ordered or undertaken by such
governmental authority. However, prior
to Mortgagor’s commencement of such contest Mortgagor shall notify Mortgagee of
its intent to contest such items, and Mortgagee shall determine whether such
contest may cause sufficient risk to either the environment or the impairment
of the Property. Mortgagor may proceed
with such contest pending Mortgagee’s determination, but if Mortgagee
determines that it is necessary to insure the protection of environment or the
Property during such contest, Mortgagor shall provide to Mortgagee an amount
sufficient to perform and complete the work, and to reimburse Mortgagee for any
clean-up operations which has been or may be required to be performed. These funds shall be held in an interest bearing
escrow account, with the interest to be accumulated in the account until the
work is completed. In lieu of such a
cash deposit, the Mortgagor may provide a bond satisfactory to Mortgagee, or
other security as Mortgagee may find satisfactory.
(b) Mortgagor shall
also have the right to seek contribution, indemnity or any other legal right,
remedy or recourse which Mortgagor has or may have against any party except
Mortgagee or its officers, agents or employees.
Upon the entry of any final, nonappealable judgment (or the execution of
a consent decree or other agreement between Mortgagor and such governmental
authority) requiring Mortgagor to perform any clean-up operation on the
Property, or in the event Mortgagor does not contest the clean-up ordered or
undertaken by such governmental authority, then Mortgagor shall begin the
clean-up operation and notify Mortgagee of the same, within five (5) days
after (i) Mortgagor’s receipt of notice from such governmental authority
that such clean-up is required, (ii) the commencement of such clean-up
operation by such governmental authority, whichever is earlier, or (iii) the
time periods set forth in the judgment, consent decree or other agreement. Mortgagor shall promptly do the following as
appropriate:
(c) begin
performance of the clean-up operation;
(d) cooperate with
any governmental authority conducting any clean-up operation and reimburse said
authority for the cost thereof if required by law to do so; and
(e) fully reimburse
any other party in accordance with said final nonappealable judgment for any
clean up operation performed as required by law and obtain a release from such
party and furnish Mortgagee a copy of such release.
(f) If Mortgagor
fails to remove any Hazardous Material or otherwise comply with the
Environmental Regulations, Mortgagee may, after notice to Mortgagor and the
expiration of any cure period provided in this Mortgage, declare an Event of
Default of this Mortgage and do whatever is necessary to either eliminate such
Hazardous Material from the
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Property or otherwise cause
compliance with the Environmental Regulations, in addition to exercising the
other remedies of Mortgagee hereunder for a breach of this Mortgage. All losses, costs, damages, claims, and
expenses incurred by Mortgagee on account of Mortgagor’s failure to perform the
obligations described in this Mortgage shall be immediately due and payable
with interest thereon at the
Default Rate specified in the Note.
(g) Mortgagor
acknowledges that in the event any Hazardous Material is removed from the
Property by either Mortgagor or by Mortgagee, the Environmental Protection
Agency Generatory Identification Number used on the waste manifest such
Hazardous Material shall be in the name of the Mortgagor, or Mortgagor’s agent
(other than Mortgagee), shall assume all of Mortgagee’s potential and actual
liability for the removal and disposal of such Hazardous Material. Mortgagor shall give and hereby grants to
Mortgagee, its agents and employees access to the Property, and hereby
specifically grants the Mortgagee a license, effective upon expiration of the
applicable cure period, if any, to remove such materials in order to comply
with Environmental Regulations.
Notwithstanding the foregoing, Mortgagor shall not be in default
hereunder, and the Mortgagee shall not have the right to accelerate the
indebtedness, so long as Mortgagor commences the clean-up operation within the
time periods set forth above and thereafter diligently prosecutes such clean-up
operation to completion.
(h) In exercising
any of the remedies provided herein or taking any of the actions which are
authorized herein, Mortgagee will be acting solely and exclusively as agent for
Mortgagor in attempting to realize the maximum return from the Property and in
attempting to obtain payment to Mortgagee of the amounts which Mortgagee is to
receive pursuant to the Note. the
parties acknowledge that in so doing, Mortgagee will not be or be deemed to be
an “owner” or “operator” of the Property under any Environmental Regulation,
and will not be assuming any obligations of Mortgagor to fully comply with the
Environmental Regulations. Mortgagor
will specifically defend and indemnify Mortgagee against any such liability, cost,
loss or expense.
30. Environmental indemnification. Mortgagor hereby agrees to defend, indemnify
and hold Mortgagee (including its successors, assigns, employees, contractors,
agents, officers and directors) harmless from, any and all actions, loss,
liability, damage, cost or expense occasioned by, resulting from, or consequent
to any Hazardous Material or Hazardous Material contamination on the Property;
any releases or discharges of Hazardous Material from the Property; any
manufacturing, treating, storing, maintaining, holding, handling, transporting,
spilling, leaking or dumping of Hazardous Material on, from or at the Property;
any other violation of Hazardous Material laws, ordinances, rules and
regulations; any claim or assertion that any Hazardous Material or Hazardous
Material contamination is located on the Property; any claim that any such
activities or violations have been, or are being, engaged in on the Property;
or any other failure or alleged failure of Mortgagor, Mortgagor’s agents, contractors,
authorized representatives or employees, the Property, to comply with the
provisions of this Agreement. This
indemnity shall be enforceable notwithstanding any attempts by Mortgagor to
exercise due diligence in ascertaining whether or not any of the events
outlined above affect the Property. The
loss, liability, damage, cost, or expense which is covered by this indemnity
shall include, without limitation, all foreseeable consequential damages; the
costs of any required or necessary repair, cleanup or detoxification of the
Property, including the soil and ground water thereof, and the preparation and
implementation of any closure, remedial or other required plans;
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damage to any natural
resources; and all reasonable costs and expenses incurred by Mortgagee in
connection with the above, including but not limited to attorneys’ and
consultants’ fees. It is the intent of
Mortgagor and Mortgagee that Mortgagee shall have no liability or responsibility
for damage or injury to human health, the environment or natural resources
caused by, for abatement and/or clean-up of, or otherwise with respect to
Hazardous Material by virtue of the interest of Mortgagee in the Property
created hereby, or as the result of Mortgagee exercising any of its remedies
hereunder, including but not limited to Mortgagee’s becoming the owner of the
Property by foreclosure or conveyance in lieu of foreclosure. Any amounts covered by the foregoing
indemnification shall be added to the indebtedness otherwise secured by the
Mortgage and shall bear interest from the date incurred at the Default Rate as defined in the Note,
and shall be payable on demand and be a part of the indebtedness secured
hereby. Such expenses shall be reimbursed
by Mortgagor to Mortgagee as and when such expenses are incurred, and Mortgagee
shall not be required to wait until such losses, costs, damages, liabilities or
expenses have been reduced to judgment.
31. Uniform Commercial Code Security Agreement. This Mortgage is intended to be a security
agreement pursuant to the Uniform Commercial Code for any of the items
specified above as part of the Property which, under applicable law, may be
subject to a security interest pursuant to the Uniform Commercial Code, and
Mortgagor hereby grants Mortgagee a security interest in said items. Borrower agrees that Mortgagee may file this
Mortgage, or a reproduction thereof, in the real estate records or other
appropriate index, as a financing statement for any of the items specified
above as part of the Property, and Mortgagor hereby authorizes Mortgagee to do
so. Any reproduction of this Mortgage or
of any other security agreement or financing statement shall be sufficient as a
financing statement. In addition, Mortgagor
hereby authorizes Mortgagee to prepare and file any and all financing
statements, as well as extensions, renewals and amendments thereof, and
reproductions of this Mortgage in such form as Mortgagee may require, to
perfect a security interest with respect to said items in any public offices or
records as Mortgagee may determine.
Borrower shall pay all costs of filing such financing statements and any
extensions, renewals, amendments and releases thereof, and shall pay all
reasonable costs and expenses of any record searches for financing statements
which Mortgagee may reasonably require.
Without the prior written consent of Mortgagee, Mortgagor shall not
create or suffer to be created pursuant to the Uniform Commercial Code any
other security interest in said items, including replacements and additions
thereto. Upon Mortgagor’s breach of any
covenant or agreement of Mortgagor contained in this Mortgage including the
covenants to pay when due all sums secured by this Mortgage, Mortgagee shall
have the remedies of a secured party under the Uniform Commercial Code and, at
Mortgagee’s option, may also invoke the remedies provided in this Mortgage as
to such items. In exercising any of said
remedies, Mortgagee may proceed against the items of real property and any
items of personal property specified above as part of the Property separately
or together and in any order whatsoever, without in any way affecting the
availability of Mortgagee’s remedies under the Uniform Commercial Code or of
the remedies provided in this Mortgage.
32. Merger. There shall
be no merger of this Mortgage or any other document securing the Note with the
fee estate of the Real Estate by reason of the fact that the same party may
hold or acquire, directly or indirectly, the Note, this Mortgage or any other
document securing the Note and at the same time be the owner of the fee estate
of the Property or thereafter
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acquire the fee estate of
the Real Estate, or by reason of the fact that the same party may hold or
acquire, directly or indirectly, the fee estate of the Real Estate and at the
same time be the owner and holder of the Note, this Mortgage or any other
instruments securing the Note or thereafter acquire the Note, this Mortgage or
any other instrument securing the Note.
33. Miscellaneous.
(a) In the event of
a conflict between the terms, covenants and conditions of this Mortgage and
those of any other Loan Document, the terms, covenants and conditions of the
document which shall enlarge the interest of Mortgagee in the Property, afford
the Mortgagee greater financial security in the Property and/or assure payment
of the indebtedness in full, shall control.
(b) The headings
and captions of various paragraphs of this Mortgage are for convenience only
and are not to be construed as defining or limiting, in any way, the scope or
intent of the provisions hereof.
(c) In the event
any one or more of the provisions contained in this Mortgage or in the Note or
in the Loan Documents shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Mortgage or Note or other Loan
Document, but this Mortgage or Note or other Loan Document shall be construed
as if such invalid, illegal or unenforceable provision had never been contained
herein or therein.
(d) This Mortgage,
and the rights of enforcement hereunder shall, without regard to the place of
contract or payment, be construed and enforced according to the laws of the
state where the Property is located.
(e) Time is of the
essence of this Mortgage, and the waiver of the options or obligations secured
hereby shall not at any time thereafter be held to be an abandonment of such
rights. Notice of the exercise of any
option granted to Mortgagee herein, or in the Note, is not required to be
given, except as otherwise provided herein.
(f) The covenants
herein contained are joint and several and shall bind, and the benefits and
advantages thereof shall also inure to the benefit of, the respective
successors and assigns of the parties.
(g) Whenever used,
the singular number shall include the plural, the plural the singular and the
use of any gender shall include all genders.
34. Loss of Note. In the event
the Note is mutilated, destroyed, lost or stolen, Mortgagor shall deliver to
Mortgagee in substitution therefor a new promissory note containing the same
terms and conditions as the Note, with a notation thereon of the unpaid principal
and accrued but unpaid interest.
Mortgagor shall be furnished with reasonably satisfactory evidence of
the mutilation, destruction, loss or theft of the Note, and also such security
of indemnity as may be reasonably requested by Mortgagor.
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35. Waiver of Trial by Jury. To the extent permitted by law, Mortgagor and
Mortgagee hereby waive trial by jury in any action, proceeding or counterclaim
brought by either party against the other on any matter arising out of or in
any way connected with this Mortgage, and any other loan or security document
given in connection herewith, the relationship of Mortgagor and Mortgagee, or
Mortgagor’s use and occupancy of the Property.
NOW,
THEREFORE, if the Note and the interest thereon and the indebtedness be paid
when due and the said agreements be faithfully performed as aforesaid, then
these presents, including the lease hereinabove set forth, shall cease and be
void, and the Property shall be released at the cost of the Mortgagor.
IN
WITNESS WHEREOF, the undersigned has executed this Mortgage or caused this
Mortgage to be executed by their duly authorized representatives the day and
year first above written.
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Mortgagor:
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MGP INGREDIENTS, INC., a Kansas
corporation
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By:
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/s/ Timothy W. Newkirk
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Print Name: Timothy W. Newkirk
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Print Title: President & CEO
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STATE OF KANSAS
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) ss.
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COUNTY OF ATCHISON
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BE IT REMEMBERED, that on this 27th day of March,
2009, before me the undersigned, a Notary Public in and for said County and
State, personally appearedTimothy W. Newkirk, to me personally known, who being
by me duly sworn, did say that he is the President & CEO of MGP
ingredients, inc., a Kansas corporation, that said instrument was signed on
behalf of said corporation, and said Timothy W.l newkirk acknowledged said
instrument to be the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal at my office in Atchison, Kansas, the day and year
last above written.
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/s/ Marta L Myers
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Notary Public in and for said County and State
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Marta L. Myers
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(Type, print or stamp the Notary’s name.)
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My
Commission Expires:
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Exhibit “a”
Legal
Description of Atchison, Kansas Property
Mortgage
from MGP ingredients, inc. to Cloud L. Cray, Jr.
Parcel 1:
[Intentionally omitted]
Parcel 2:
[Intentionally omitted]
Parcel 3:
West Thirty-Five feet (35’) of Lot Three (3), Block
twenty and one-half(20½), in West Atchison, an addition to the City of
Atchison.
Parcel 4:
the West Half of Lot two (2), in Block twenty and
one-half(20½), in West Atchison, an addition to the City of Atchison.
Parcel 5:
Lot One (1) and the East Half of Lot two (2),
in Block twenty and one-half(20½), in West Atchison, an addition to the City of
Atchison.
Parcel 6:
the East Thirty-Eight and Three-Fourths feet (E38.75’)
of Lot Three (3), Block twenty and one-half(20½), in that part of the City of
Atchison known and designated as West Atchison.
Parcel 7:
the East one-half(E½) of Lot Four (4), Block twenty
and one-half(20½) in West Atchison, an addition to the City of Atchison.
Parcel 8:
the West one-half(W½) of Lot Four (4), Block twenty
and one-half(20½), in West Atchison, an addition to the City of Atchison.
26
Parcel 9:
Lot Five (5) in Block twenty and one-half(20½),
in West Atchison, an addition to the City of Atchison.
Parcel 10:
the South Thirty feet (30’) of Lot six (6), Block
twenty, West Atchison, an addition to the City of Atchison.
Parcel 11:
the North Ninety feet of Lot six, in Block twenty in
West Atchison, an addition to the City of Atchison, Kansas, together with the
West vacated Thirty feet of Roberts Street, which abut on the East of said
North Ninety feet of Lot six.
Parcel 12:
the East (E) Forty (40) feet of Lot Seven (7),
in Block twenty (Blk 20), in West Atchison (WA), an addition to the City of
Atchison, Atchison County, Kansas.
Parcel 13:
the West Thirty-Three and Three-Fourths feet (33¾)
of Lot Seven (7), the East Eleven and One-Fourth feet (11¼’) of Lot Eight (8),
Block twenty (20), West Atchison, an addition to the CITY of Atchison.
Parcel 14:
the East Thirty feet (30’) of the West sixty-two and
one-half feet (62½’) of Lot Eight (8), Block twenty (20), West Atchison, an
addition to the City of Atchison.
Parcel 15:
All of the West Thirty-two and one-half feet (32-½’)
of Lot Eight (8), Block twenty (20), West Atchison, an addition to the City of
Atchison, Atchison County, Kansas.
Parcel 16:
the East Forty-Seven feet (47’) of Lot ten (10),
Block twenty (20), West Atchison, an addition to the City of Atchison.
Parcel 17:
North Thirty feet (30’) of the South sixty feet (60’)
of Lot six (6), Block twenty (20), West Atchison, an addition to the City of
Atchison.
27
Parcel 18:
the East Fifty-Eight feet (E 58’) of Lot Eight (8),
Block twenty and one-half(20-½), in West Atchison, an addition to the City of
Atchison.
Parcel 19:
the East (E) Seventy-Three and One-Third (73
1/3 RD) feet of Lot Seven (LT 7), and the West (W) Fifty-two (52) feet of
Lot Eight (LT 8), Block twenty and one-half(20 ½) in West Atchison, an addition
to the City of Atchison, Atchison County, Kansas.
Parcel 20:
the East Three feet (E 3’) and Nine inches (9”) of
Lot six (6) and the West Thirty-six feet (W 36’) and Eight inches (8”) of
Lot Seven (7), all in Block twenty and one-half(20 ½) in West Atchison, an
addition to the City of Atchison.
Parcel 21:
the West Eighty-Five feet (W 85’) of Lot six (LT 6),
in Block twenty and one-half(BLK 20 ½), in West Atchison, an addition to the
City of Atchison.
Parcel 22:
Lot Eleven (LT 11) and the West (W) Thirty (30)
feet of vacated Roberts Street, all in Block twenty (Blk 20), in West Atchison,
an addition to the City of Atchison, Kansas.
Parcel 23:
Tract No. 1
Lots 1 to 16, both inclusive, Block 21½, West
Atchison, an addition to the City of Atchison, Kansas, together with all
adjacent tracts out of the streets and alleys adjoining said Lots heretofore
acquired, by reversion, upon the vacation of said streets and alleys.
Tract No. 2
Lots 9, 10 and 11, Block 21, West Atchison, an
addition to the City of Atchison, Kansas, and the West 30 feet of vacated
Roberts Street East of and adjoining said Lot 11, except the following
described tract:
Beginning at a point 14 feet East of the Southeast
corner of said Lot 11; thence East 16 feet to the center line of Roberts Street
(now vacated); thence North along said center line 30 feet; thence
southwesterly 34 feet to the point of beginning, together with all adjacent
tracts out of the streets and alleys adjoining the tract above described
heretofore acquired, by reversion, upon the vacation of said streets and
alleys.
28
Tract No. 3
Lot 6, Block 21, West Atchison, an addition to the
City of Atchison, Kansas, and the West 30 feet of vacated Roberts Street East
of and adjoining said Lot, except the following described tract:
Beginning at the Northwest corner of said Lot 6;
thence East along the North line of said Lot and the Easterly continuation
thereof 100 feet; thence South 100 feet; thence West 100 feet to a point on the
West line of said Lot 6; thence North 100 feet to the point of beginning. Together with all adjacent tracts out of the
streets and alleys adjoining the tract above described heretofore acquired, by
reversion, upon the vacation of said streets and alleys.
Tract No. 4
Lots 1 to 8, both inclusive, Block 50, L.C. Challiss
Addition, an addition to the City of Atchison, Kansas, together with all
adjacent tracts out of the streets and alleys adjoining said lots heretofore
acquired, by reversion, upon the vacation of said streets and alleys.
Tract No. 5
All that part of Block 28, John Roberts’ Third
Addition, now vacated, together with a portion of Utah Avenue adjacent thereto,
now vacated, in West Atchison, an addition to the City of Atchison, Kansas, described
as follows:
Beginning at the point on the South line of Utah
Avenue (now vacated) approximately 165 feet West of the Northeast Corner of
said Block 28, measured along the North line of said Block (said point being 9
feet Northwesterly of, measured at right angles to, the center line of the
Missouri Pacific Railroad Co. Track No. 17-137); thence Southwesterly
along a line making a Southwest angle of 54°14’ with said North line of said
Block 28 a distance of 70 feet to a point (said point being 9 feet
Northwesterly of, measured at right angles to, the center line of said Track
17-137); thence Northwesterly at right angles to the last described course 10
feet to a point (said point being 9 feet Northwesterly of, measured at right
angles to, the center line of the Missouri Pacific Railroad Co. Track No. 17-138);
thence Southwesterly along a line turning an angle of 82°53’ to the left of the
last described course 80 feet to a point (said point being 9 feet Northwesterly
of, measured at right angles to, the center line of said Track No. 17-138);
thence Southwesterly along a line turning an angle of 10°03’ to the right of
the last described course 67.5 feet to a point (said point being 9 feet
Northwesterly of, measured at right angles to, the center line of said Track No. 17-138);
thence Southwesterly along a line turning an angle of 9°32’ to the right of the
last described course 67.5 feet to a point (said point being 9 feet
Northwesterly of, measured at right angles to, the center line of said Track No. 17-138);
thence Southwesterly along a line turning an angle of 5°32’ to the right of the
last described course 67.5 feet to a point (said point being 9 feet
Northwesterly of, measured at right angles to, the center line of said Track No. 17-138);
thence Southwesterly along a line turning an angle of 5° to the right of the
last described course 136 feet, more or less, to a point on the West line of
said Block 28 (said point being 9 feet Northwesterly of, measured at right
angles to, the center line of said Track No. 17-138); thence Northwesterly
along the West line of said Block 28 and the extension thereof 285 feet, more
or
29
less, to the center line of vacated Utah Avenue;
thence East along the center line of vacated Utah Avenue 445 feet, thence
Southwesterly along a line turning an angle of 114°18’ to the right of the last
described course 44.6 feet, more or less, to the point of beginning.
Parcel 24:
Lot 8, in Block 21, and that part of the City of
Atchison usually known and designated as West Atchison, an Addition to the City
of Atchison, Kansas, Atchison County, Kansas.
Parcel 25:
The North One Hundred feet (N 100’) of Lot Seven
(7), in Block twenty-One (21), in West Atchison, an Addition to the City of Atchison.
Parcel 26:
The South (S) Fifty (50) feet of Lot Seven (Lt
7), Block Twenty-One (Blk 21), in West Atchison (WA), an Addition to the City
of Atchison, Atchison County, Kansas, according to the Recorded Plat Thereof.
Parcel 27:
The East Fifty-Six feet (56’) of Lot Twenty (20), in
Block Twenty-Two (22), in West Atchison, an Addition to the City of Atchison.
Parcel 28:
The East twenty-six feet ten inches (26’10”) of Lot
Seventeen (17), Block Twenty-Two (22), West Atchison, an Addition to the City
of Atchison.
Parcel 29:
The North Eighty-Seven and one-half feet (N 87 1/2’)
of Lots One (1) and Two (2), in Block Twenty-Two (22), in West Atchison.
Parcel 30:
The South sixty-two and one-half feet (62½’) of Lot
One (1) and the South sixty-two and one-half feet (62½’) of Lot Two (2),
Except the West twenty-five feet (25’) of said Lot Two (2), all in Block
Twenty-Two (22), in West Atchison, an Addition to the City of Atchison.
Parcel 31:
[Intentionally omitted]
30
Parcel 32:
[Intentionally Omitted]
Parcel 33:
Intentionally Omitted]
Parcel 34:
The South Fifty feet (S. 50’) of Lots Thirty-six
(36), Thirty-Seven (37), Thirty-Eight (38) and Thirty-Nine (39), in Block
Thirty-Nine (39), in L.C. Challiss, an Addition to the City of Atchison.
Parcel 35
All of Lots Twenty-Five (25) and Twenty-Six (26) and
the West 0.50 feet of Lot Twenty-Seven (27), in Block Forty (40), in L.C.
Challiss Addition to the City of Atchison, Atchison County, Kansas.
Parcel 36:
The South 76 feet of Lots One (1) and Two (2),
in Block Forty (40), in L.C. Challis Addition, an Addition to the City of
Atchison, Atchison County, Kansas.
Parcel 37:
Lots Fifteen (15) and Sixteen (16), in Block Forty
(40), L.C. Challiss Addition, an Addition to the City of Atchison.
Parcel 38:
Lot Seventeen (17), and the East Ten (10) feet
of Lot Eighteen (18), Block Forty (40) in the L.C. Challis Addition to the City
of Atchison.
Parcel 39:
Lot Nineteen (19) and the West Fifteen feet (W. 15’)
of Lot Eighteen (18), in Block Forty (40), in L.C. Challiss Addition to the
City of Atchison.
Parcel 40:
All of Lots 35 to 38 inclusive, in Block 40, L.C.
Challiss Addition to the City of Atchison, Atchison County, Kansas , Except
that part of the same that is South of the most Northwesterly right of way line
of the Missouri Pacific Railroad Co. and running through said Lots in Block 40,
L.C. Challiss Addition.
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Parcel 41:
The South 76 feet of Lots One (1) and Two (2),
in Block Forty (40), in L.C. Challis Addition, an Addition to the City of
Atchison, Atchison County, Kansas.
Parcel 42:
All of Lots 39 and 40 of Block 40 of the L.C.
Challis Addition to the City of Atchison, Atchison County, Kansas, and all
those portions of Lots 31, 32, 33, 34, 35, 36, 37 and 38 of said Block 40 that
Lie Southeasterly and Easterly of the Southeasterly line of that certain strip
of land described in General Warranty Deed dated October 14, 1929, from
Missouri Pacific Railroad Company to Pillsbury Flour Mills Company, identified
in the Missouri Pacific Railroad Deed Records as Document No. 1600306
#3-2.
Also the North 30 feet of Lot 42 of Block 40 of the
L.C. Challis Addition to the City of Atchison, Atchison County, Kansas.
Parcel 43:
Lots Five, Six, Seven, Eight, Nine and Ten (5, 6, 7,
8, 9 and 10), Block Forty-Three (43), in L.C. Challiss Addition to the City of
Atchison, except that part thereof described as follows;
Commencing at the Southwest Corner of said Lot Ten
(10), Block Forty-Three (43), L.C. Challiss Addition, thence East along the
South line of Lots Ten (10) to Five (5), inclusive to the Southeast Corner
of said Lot Five (5), Block Forty-Three (43), L.C. Challiss Addition, thence
North along the East line of said Lot Five (5), a distance of Seventy-Five and
six-tenths (75.6) feet, thence Southwest to the place of beginning. and all of
Lots Eleven, Twelve, Thirteen, Fourteen and Fifteen (11, 12, 13, 14 and 15),
Block Forty-Three (43), L.C. Challiss Addition to the City of Atchison.
Parcel 44:
Lots One (1) through Sixteen (16), inclusive,
and Lot Twenty-Two (22), in Block Forty-Eight (48), in L.C. Challiss’ Addition
to the City of Atchison, Atchison County, Kansas; and
A Tract in the Southeast Quarter (SE ¼) of the
Northwest Quarter (NW ¼) of Section One (1), Township Six (6), Range
Twenty (20), described as follows:
Beginning at a point in the West line of Thirteenth
Street in the City of Atchison, 320 feet Northwardly from the intersection of
said West line with the East and West center line of said Section 1,
thence Southwardly along said West line 15 feet more or less to a point in the
Northwesterly line of a tract of land condemned by the City of Atchison
pursuant to Ordinance No. 3966, Report of Condemnation being recorded in
Book 234, Page 523, of the Register of Deeds’ Office for Atchison County,
thence Southwestwardly along said Northwesterly line to a point in the
prolongation Southerly of the East line of Fourteenth Street, thence
Northwardly along said prolongation 390’ more or less to an intersection with
the Southeasterly line of property of the Atchison, Topeka and Santa Fe Railway
Company, thence Northeastwardly along said Southeasterly line 610 feet more or
less to a point in the West line of Thirteenth Street vacated Under Ordinance No. 3192
Dated May 24, 1915, thence Eastwardly by a straight line at
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right angles to said West line of Thirteenth Street
30 feet to the center line of said Thirteenth Street vacated, thence
Southwardly along said center line 400 feet more or less to the Southerly line
of that part of Thirteenth Street vacated under said Ordinance, thence
Westwardly along said Southerly line 30 feet to the point of beginning, Containing
5.85 acres more or less.
Parcel 45:
Lots One and Two (1 & 2) and the North
Sixty-Five feet (N 65’) and the East Half (E ½) of the South Eighty-Five feet
(S 85’) of Lot Three (3) in Block Fifty-One (51), in L.C. Challiss
Addition to the City of Atchison.
Parcel 46:
Lots Thirteen and Fourteen (Lts 13 & 14),
Block Fifty-One (Blk 51), in L.C. Challiss’ Addition to the City of Atchison,
Atchison County, Kansas.
Parcel 47:
All of Lots twenty Three (23) and twenty Four (24),
in Block Fifty-One (51) in that part of the City of Atchison known and
designated as L.C. Challiss Addition.
Parcel 48:
Lots Nineteen (19) , Twenty (20) , Twenty-One (21)
and Twenty-Two (22), Block Fifty-One (51), L.C. Challiss Addition to the City
of Atchison, Atchison County, Kansas.
Parcel 49:
Lots Fifteen (15), sixteen (16), Seventeen (17) and
Eighteen (18), Block Fifty-One (51) in L.C. Challiss Addition to the City of
Atchison.
Parcel 50:
[Intentionally Omitted]
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