EXHIBIT 10.20
After recording, please return to:
Xxxxxxx Coie LLP
ATTN: Xxxxxx X. Xxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
MORTGAGE
THIS MORTGAGE (the "Mortgage") is made this 17th day of June, 2004, between
TSL Acquisition Corp., a Delaware corporation ("Mortgagor"), whose current
address is c/o AMCON Distributing Company, Attention: Chief Financial
Officer, 0000 Xxxxxxxxx Xxxx, Xxxxx, Xxxxxxxx 00000-0000, and Trinity Springs
Ltd., an Idaho limited liability company ("Trinity"), whose current address
is Attention: Xxxx Xxxxxx, 000 Xxxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000.
Contemporaneous herewith, the Mortgagor is executing and delivering to
Trinity (a) a Promissory Note in the original principal amount of FIVE
HUNDRED THOUSAND DOLLARS ($500,000) (the "Three Year Note"), (b) a Promissory
Note in the original principal amount of TWO MILLION EIGHT HUNDRED TWENTY
EIGHT THOUSAND FOUR HUNDRED FORTY AND 00/100 DOLLARS ($2,828,440.00) (the
"Ten Year Note"), and shall deliver (c) an executed Asset Purchase Agreement
(the "Purchase Agreement") dated as of April 24, 2004, among Mortgagor,
Trinity and AMCON Distributing Company, a Delaware corporation, the parent of
Mortgagor, pursuant to which, in Section 11.1 of the Purchase Agreement,
Mortgagor has agreed to make certain royalty payments to Trinity (the "Water
Royalty"). To secure the payment of the Three Year Note, the Ten Year Note
and the Water Royalty, and in consideration for Trinity's execution, delivery
and performance of the Purchase Agreement, Mortgagor is executing and
delivering to Trinity (x) this Mortgage to grant Trinity a security interest
in the Property, as defined below, and (y) a security agreement (the
"Security Agreement").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Mortgagor and Trinity agree as
follows:
1. Defined Terms. All capitalized terms used but not otherwise defined
herein shall have the meaning set forth in the Purchase Agreement.
2. Grant of Security Interest. Mortgagor, for good and valuable
consideration, does by these presents grant, bargain, sell, transfer, pledge
and convey unto Trinity, and to Trinity's successors and assigns forever,
Mortgagor's right, title and interest in and to all that certain real
property situate in Xxxxxx County, State of Idaho (the "Property"), and
particularly described in Exhibit A, attached hereto and incorporated herein
by reference, together with the tenements, hereditaments and appurtenances
thereto belonging or in any way appertaining, including but not limited to
all timber, mineral, geothermal and water rights pertaining thereto, and
specifically the water rights identified on Exhibit B, attached hereto and
incorporated herein by reference.
2.1 Assignment of Leases and Rents. Mortgagor absolutely and
unconditionally assigns to Trinity all of Mortgagor's right, title and
interest in and to all rents, issues and profits from the Property; it being
intended by Mortgagor that this assignment constitutes a present, absolute
assignment and not an assignment for additional security only. Nevertheless,
subject to the terms of this Mortgage, Trinity grants to Mortgagor a
revocable license to collect and receive all rents, issues and profits.
3. Security for Obligations. This grant is intended as a Mortgage to
secure the payment and performance of all present and future obligations of
the Mortgagor to Trinity under the Three Year Note, the Ten Year Note and the
Water Royalty, together with any amounts expended by or on behalf of Trinity
for the protection, preservation and collection of the security interest
granted herein by the Mortgagor to Trinity, including, without limitation,
reasonable attorneys fees (collectively the "Obligations").
4. Representations and Covenants. Mortgagor hereby represents, warrants
and covenants to Trinity that: (a) Mortgagor shall own the Property free and
clear of any lien, security interest, claim or encumbrance, except for (i)
any lien, security interest, claim or encumbrance on the Property that
existed prior to the Closing of the transaction contemplated in the Purchase
Agreement, (ii) the security interest granted by this Mortgage, (iii) any
subordinate lien or subordinate security interest hereafter created by
Mortgagor, (iv) any purchase money security interest in property hereafter
acquired by Mortgagor and (v) the Permitted Encumbrances, as defined in the
Purchase Agreement; (b) Mortgagor will notify Trinity in writing at least
thirty (30) days prior to any change in Mortgagor's name, address or form of
entity; (c) Mortgagor will not sell or offer to sell, assign, lease or
otherwise dispose of any material portion of the Property without Trinity's
prior written consent, not to be unreasonably withheld or delayed; (d)
Mortgagor will keep the Property at all times in a condition of repair, at
least as good as presently exists, reasonable wear and tear excepted, will
not remove or demolish any building thereon and will complete or restore
promptly and in good and workmanlike manner any building which may be
constructed, damaged or destroyed thereon; (e) Mortgagor will provide,
maintain and deliver to Trinity evidence of fire insurance satisfactory to
and with loss payable to Trinity. The amount collected under any fire or
other insurance policy will be released to Mortgagor provided all such
proceeds are used solely to rebuild or reconstruct the improvements that were
damaged or destroyed; (f) Mortgagor will pay, prior to becoming delinquent,
all taxes and assessments affecting the Property.
5. Further Assurances. The Mortgagor agrees that from time to time, at
the sole expense of the Mortgagor, the Mortgagor shall promptly execute and
deliver all further instruments and documents, and take all further action,
that may be necessary or desirable, or that Trinity may reasonably request,
in order to perfect and protect any security interest granted or purported to
be granted hereby or to enable Trinity to exercise and enforce its rights and
remedies hereunder with respect to the Property. Without limiting the
generality of the foregoing, the Mortgagor shall execute and file such
financing or continuation statements, or amendments thereto, as Trinity may
request, and shall execute a security agreement or any other document
reasonably requested by Trinity to perfect Trinity's first priority security
interest in the Water Rights which is the subject of the Water Royalty.
6. Trinity's Duties. The powers conferred on Trinity hereunder are
solely to protect its interest in the Property and shall not impose any duty
upon it to exercise any such powers. Trinity shall have no duty as to the
Property or as to the taking of any necessary steps to preserve rights
against other parties or any other rights pertaining to the Property.
7. Events of Default. The occurrence of any one (1) or more of the
following events shall constitute an event of default ("Event of Default")
hereunder:
a. An "Event of Default" as described in the Three Year Note;
b. An "Event of Default" as described in the Ten Year Note; or
c. Mortgagor shall fail to pay any installment when due of the Water
Royalty pursuant to Section 11.1 of the Purchase Agreement and such failure
shall continue for a period of five (5) days after Trinity provides written
notice of such failure to Mortgagor; provided, however, that in the event any
amount of the Water Royalty is subject to any bona fide dispute, an Event of
Default hereunder shall not occur unless Mortgagor fails to pay the amount of
the Water Royalty that is not in dispute when originally due (subject to the
five (5) day notice and right to cure period) or fails to pay the disputed
amount finally adjudicated to be due by a court of competent jurisdiction
from which no further appeal may be effected, and such payment is not made
within twenty (20) days after the judgment of such court becomes final and no
longer subject to appeal; or
d. Any other default under this Mortgage, which default is not cured
within thirty (30) days after written notice from Trinity to Mortgagor.
8. Remedies. If any Event of Default shall have occurred:
a. Trinity may immediately enter upon the Property, to foreclose,
sell or dispose of the Property according to law, and from the money arising
from such sale, retain the principal and interest which shall then be due on
any of the Obligations, together with the costs and charges of foreclosure
suit, including reasonable attorneys' fees, and also the amounts of all
payments of taxes, assessments, encumbrances or insurance as may have been
made by Trinity, its successors or assigns, with interest on the same, paying
the surplus of the purchase money, if any, to Mortgagor, its successors or
assigns.
b. Trinity may immediately revoke the license granted the Mortgagor
under subsection 2.1 and Trinity may forthwith collect all rents, issues and
profits.
c. Trinity may pursue such other remedies as Trinity may have under
applicable law.
d. All rights and remedies of Trinity after a default shall be
cumulative. No waiver by Trinity of any default will waive any other default
or the same default on a different occasion.
e. Mortgagor hereby authorizes and empowers Trinity, and appoints
Trinity as attorney in fact of Mortgagor, which authorization, power and
appointment, being coupled with an interest, is irrevocable until payment of
all Obligations, at any time after a default, in Trinity's sole and absolute
discretion, to: (a) request, in Mortgagor's name, Trinity's name or the name
of a third party, confirmation from any account Mortgagor or party obligated
under or with respect to the Property of the amount shown by the accounts, or
any other matter stated therein, (b) endorse in Mortgagor's name and to
collect any chattel paper, checks, notes, drafts, instruments or other items
of payment tendered to or received by Trinity in payment of any account or
other obligation owing to Mortgagor with respect to the Property, (c) notify,
either in Mortgagor's name or Trinity's name, and/or to require Mortgagor to
notify, any account Mortgagor or other person obligated under or in respect
of the Property, of the fact of Trinity's lien thereon and of the grant of
this Mortgage thereof to Trinity, and (d) demand, collect, surrender, release
or exchange all or any part of the Property or any amounts due thereunder or
with respect thereto, or compromise or extend or renew for any period
(whether or not longer than the initial period) any and all sums which are
now or may hereafter become due or owing upon or with respect to any of the
Property, or enforce, by suit or otherwise, payment or performance of any of
the Property either in Trinity's own name or in the name of Mortgagor. Under
no circumstances shall Trinity be under any duty to act in regard to any of
the foregoing matters and nothing herein shall be deemed an assignment to, or
assumption by, Trinity of any obligations or liabilities under or with
respect to the Property, all of which obligations and liabilities shall
remain Mortgagor's sole responsibility.
9. Indemnity and Expenses.
a. The Mortgagor agrees to indemnify Trinity from and against any and
all claims, losses and liabilities arising out of or relating to this
Mortgage and/or any of the Obligations (including, without limitation,
enforcement of this Mortgage and Trinity's exercise of its rights and
remedies hereunder).
b. The Mortgagor shall upon demand pay to Trinity the amount of any
and all expenses, including, without limitation, the fees and disbursements
of its counsel and of any experts and agents, which Trinity may incur
following an Event of Default in connection with (a) the administration of
this Mortgage, (b) the custody, preservation, use of, or the sale of,
collection from, or other realization upon, any of the Property, (c) the
exercise or enforcement of any of the rights of Trinity hereunder, or (d) the
failure by the Mortgagor to perform or observe any of the provisions hereof.
All such fees, expenses and disbursements shall be deemed Obligations that
are secured by this Mortgage.
10. Notice. All notices, requests and demands to or upon a party hereto
shall be given in writing at the addresses set forth above and in accordance
with the notices provisions set forth in the Purchase Agreement.
11. Governing Law. This Mortgage shall be governed by and construed in
accordance with the internal laws of the state where the Property is located
without giving effect to any choice of law rules thereto.
12. Miscellaneous. No amendment or waiver of any provision of this
Mortgage nor consent to any departure by the Mortgagor herefrom, shall in any
event be effective unless the same shall be in writing and signed by the
party against whom enforcement of such amendment, waiver or consent is
sought, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. The
paragraph and section headings herein are solely for convenience and shall
not be deemed to limit or otherwise affect the meaning or construction of any
part of this Mortgage. This document shall be construed without regard to
any presumption or rule requiring construction against the party causing such
document or any portion thereof to be drafted. If any provision or
provisions of this Mortgage shall be unlawful, then such provision or
provisions shall be null and void, but the remainder of the Mortgage shall
remain in full force and effect and be binding on the parties. If either
party institutes any suit or action to enforce any of the terms of this
Mortgage, the prevailing party shall be entitled to recover such sum as the
court may adjudge reasonable as attorney fees and costs.
[End of Text]
IN WITNESS WHEREOF, this Mortgage has been executed the day and year first
above written.
MORTGAGOR: TSL ACQUISITION CORP.,
a Delaware corporation
By: Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board and
Chief Executive Officer
STATE OF )
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) ss.
County of )
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On this day of , in the year of 2004, before me, a Notary Public
in and for said State, personally appeared , known
or identified to me to be the of TSL Acquisition
Corp., the Delaware corporation that executed the instrument or the person
who executed the instrument on behalf of said corporation, and acknowledged
to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
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Notary Public for
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Residing at
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My Commission expires
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Exhibit A
Legal Description of Property
