Prepared by: Xxxxxxxx, Xxxxxxx & Xxxxxx, P.C
Address: 000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
One hundred eighty day redemption MORTGAGE
AND SECURITY AGREEMENT
THIS ONE HUNDRED EIGHTY DAY REDEMPTION MORTGAGE AND SECURITY AGREEMENT
(this "Mortgage") is made as of December 21, 2004, by and between
AMCON Distributing Company, a Delaware corporation, having an address
at 0000 Xxxxxxxxx Xxxx, Xxxxx, Xxxxxxxx 00000 (the "Borrower"), in
favor of GOLD BANK, a Kansas banking corporation, having an address at
000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 (the "Lender").
RECITALS:
A. Borrower has delivered to Lender the following promissory notes
(collectively, the "Notes"):
1. A certain Term Real Estate Promissory Note (Real Estate Term Note)
of even date herewith in the maximum principal amount of up to Nine
Hundred Eighty-Four Thousand AND NO/100 DOLLARS ($984,000.00), with
interest as therein specified, due December 31, 2009, if not sooner
paid.
2. A certain Term Equipment Promissory Note (Equipment Term Note) of
even date herewith in the maximum principal amount of up to Four
Hundred Eighty Thousand AND NO/100 DOLLARS ($480,000.00), with
interest as therein specified, due March 1, 2010, if not sooner paid.
The Notes, the Mortgage, the Security Agreement between Borrower and
Lender of even date herewith ("Security Agreement"), the Environmental
Indemnity Agreement executed by Borrower in favor of Lender of even
date herewith ("Environmental Indemnity Agreement") and any and all
other documents executed in connection therewith shall be referred to
herein as the "Loan Documents".
B. Borrower is delivering this Mortgage to secure the payment of the
Indebtedness (hereinafter defined) including future advances and
future obligations pursuant to South Dakota law.
C. THE PARTIES AGREE THAT THE PROVISIONS OF THE ONE HUNDRED EIGHTY
DAY REDEMPTION MORTGAGE ACT GOVERN THIS MORTGAGE.
NOW, THEREFORE, Borrower for legally sufficient consideration, the
receipt and sufficiency of which is hereby acknowledged, executes and
delivers this Mortgage to secure the payment of the following
indebtedness and obligations (collectively, the "Indebtedness"):
(A) The payment of the principal, interest and premium, if any, on
the Notes according to their tenor and effect;
(B) All other sums due to Lender (including all sums advanced by
Lender) hereunder or under any other instrument securing the Notes;
and
(C) All other future advances of Lender to Borrower and all other
future obligations of Borrower to Lender.
GRANTING CLAUSE
To secure the payment of the Indebtedness, Borrower hereby grants,
bargains, sells, conveys, assigns, grants a security interest in,
mortgages and warrants unto Lender and to its successors and assigns
forever, the following described property (real and personal)
(collectively, the "Mortgaged Property"):
1. All of the real estate described in "Exhibit A" attached hereto
and incorporated herein by reference, all tenements and hereditaments
thereunto appertaining and all after acquired interests of every kind
and nature therein, which real estate (the "Premises") is situated in
the County of Xxxxxxxxxx, State of South Dakota, together with all
buildings, structures, fixtures, appurtenances and improvements
thereon situate or which may hereafter be erected or placed thereon,
all remainders and reversions in the Premises, all right, title and
interest of Borrower in and to all xxxxxxx, xxxxx, xxxxxxxxxx, xxxxxxx
or other public thoroughfares in front of and adjoining the Premises,
including all easements, licenses and rights-of-way thereunto
appurtenant, attached or belonging, and also all right, title and
interest of Borrower in and to all strips and gores of land adjacent
to the Premises; and
2. All engines, machinery, apparatus, equipment, furniture and
furnishings now or hereafter located upon and used or furnished in
connection with the letting or operation of said Premises (including,
without limitation, all heating, lighting, ventilating, cooling,
refrigeration and water supply apparatus and fixtures, ovens,
furnaces, vent hoods and fans, bathtubs, sinks, water closets, basins,
air conditioning units, pipes, faucets, mantels, refrigerators
(mechanical or otherwise) dishwashers, disposals, stoves, ranges,
clothes washers and dryers, shades, awnings, screens, blinds, rugs,
carpets, mirrors, lamps, draperies, elevators, escalators, curtains,
hangings, pictures, kitchen cabinets, sprinklers, alarm and monitoring
systems, door opening and closing equipment, all equipment for the
removal of dust, debris, snow, refuse or garbage, but excluding
personal property owned by tenants and not by Borrower), and all
replacements thereof; and
3. All rents, royalties, profits, revenues, incomes and other
benefits of and from the property subject or required to be subject to
the lien of this Mortgage, and all of the estate, right, title, and
interest of every nature whatsoever of the Borrower in and to the same
and every part and parcel thereof; and
4. All right, title and interest of Borrower in and to all leases,
occupancy and rental agreements covering the Premises and the
buildings, improvements and structures thereon, or any portion
thereof, now or hereafter existing or entered into and all right,
title and interest of Borrower thereunder, including, without
limitation, all cash or security deposits, advance rentals and
deposits or payments of a similar nature; and
5. All right, title and interest of Borrower in and to the following,
including the right to receive the same, to-wit:
(a) All proceeds of insurance paid or payable as a result of damage
to or destruction of the property described above; and
(b) Any and all awards or payments, including interest thereon, which
may be made with respect to the property described above as a result
of: (i) the exercise of the right of eminent domain; (ii) the
alteration of the grade of any streets or roads; and (iii) any other
damage or injury to or decrease in the value of the property described
above;
in each such instance to the extent of all amounts which may be
secured by this Mortgage on the date of receipt by the Lender of any
such insurance proceeds, awards or payments, and to the extent of the
reasonable counsel fees (to the extent not prohibited by law), costs
and disbursements incurred by the Lender in connection with the
collection of any such insurance proceeds, award or payment.
ARTICLE I
PARTICULAR COVENANTS OF BORROWER
Borrower covenants and agrees as follows:
1.01 PAYMENT OF INDEBTEDNESS.
That it will pay the Indebtedness in full as provided herein and in
the Notes and the other Loan Documents and will perform and keep all
the covenants and agreements in this Mortgage and in all other
instruments securing payment of the Indebtedness. The Indebtedness
shall not be prepaid except to the extent permitted by the terms of
the Notes or the Loan Documents.
1.02 TITLE AND LIEN.
That at the delivery hereof, it is the lawful owner of the Mortgaged
Property and is seized of a good and indefeasible estate of
inheritance therein, free and clear of all liens and encumbrances,
that it has full power to subject the same to the lien hereof and that
it will warrant and defend the title thereto forever against the
claims and demands of all persons whomsoever.
That the lien created by this Mortgage is a first and prior lien on
the Mortgaged Property and that it will keep the Mortgaged Property
free from all lien claims of every kind and will protect and defend
the title and possession thereof so that this Mortgage shall be and
remain a first lien thereon until the Indebtedness is fully paid, or
if foreclosure sale be had hereunder so that the purchaser at the said
sale shall acquire good title in fee simple to the Mortgaged Property
free and clear of all liens and encumbrances.
1.03 FURTHER ASSURANCES.
That it will, at its expense, do all such further acts and execute,
acknowledge, deliver and record financing and continuation statements
and all such further instruments as Lender shall require to:
(a) Continue, preserve and maintain this Mortgage as a valid and
subsisting first lien and prior security interest upon the Mortgaged
Property enforceable in accordance with the terms and provisions of
this Mortgage;
(b) Preserve and maintain the rights created by any other instruments
securing the payment of the Indebtedness; and
(c) Preserve and maintain the priority of this Mortgage and all such
other instruments securing the payment of the Indebtedness and the
record notice thereof so that no rights or liens of others shall gain
parity with or priority over this Mortgage and the other instruments
securing the payment of the Indebtedness.
1.04 TAXES, ASSESSMENTS AND UTILITIES.
That it will forthwith pay all taxes, assessments, water and sewer
charges and public charges, general and special, of every nature, now
existing against the Mortgaged Property, and pay before delinquent all
taxes, assessments, water and sewer charges and public charges,
general and special of every nature hereafter levied or assessed
thereon. In the event of the enactment after the date hereof of any
Federal law or law of the State of South Dakota deducting from the
value of land for the purpose of taxation, any lien thereon, or
changing in any way the laws now in force for the taxation of deeds of
trust or mortgages or debts secured by deeds of trust or mortgages, or
the manner of the collection of any such taxes, so as to affect this
Mortgage or the Indebtedness, then, in such case the whole of the
unpaid principal sum secured by this Mortgage, together with the
interest accrued thereon, shall, at the option of the Lender, without
notice to any party, become immediately due and payable; provided,
however, Lender agrees that it will not exercise such option to so
declare such indebtedness to be immediately due and payable if
Borrower shall pay before the same shall be delinquent any tax,
imposition or assessment imposed by any such law resulting in Lender
having to bear directly or indirectly the whole or any part of any
tax, imposition or assessment imposed upon or with respect to the
Mortgaged Property or this Mortgage or the lien created hereby.
Borrower will pay (or cause to be paid) before delinquent all charges
for gas, electricity, water, sewer or other public utility services
furnished to the Mortgaged Property.
In the event Borrower shall fail to pay any of the foregoing before
delinquent, Lender may (but shall not be obligated to) pay the same
and any interest and penalties thereon and the sums so advanced with
all costs and expenses thereof shall be secured hereby in accordance
with the provisions hereof.
1.05 INSURANCE.
That it will keep the improvements now or hereafter on the Premises
and the personal property, if any, included in the Mortgaged Property
insured against loss or damage by fire and the hazards or perils
covered by the extended coverage endorsement, boiler explosion,
vandalism, malicious mischief and against such other casualties or
hazards as may be required by Lender, including loss of rental income,
all in companies, amounts, manner and form satisfactory to Lender so
long as any of the Indebtedness remains unpaid, and will keep the
originals of all such policies of insurance (the "Fire and Extended
Coverage Policies") of whatever nature constantly assigned, pledged
and delivered to Lender with a noncontributory mortgage endorsement
making losses payable to Lender with the premiums thereon fully paid.
The Fire and Extended Coverage Policies are hereby subjected to the
lien of this Mortgage. All Fire and Extended Coverage Policies shall
provide that the coverage evidenced thereby shall not be terminated or
modified without thirty (30) days' prior written notice to Lender.
Renewals of all Fire and Extended Coverage Policies shall be delivered
to Lender at least thirty (30) days prior to the expiration of such
policies. For further securing the payment thereof, Borrower hereby
confers upon Lender the full right and power to settle and compromise
all losses covered by the Fire and Extended Coverage Policies in
excess of $15,000.00, together with the full right and power to
demand, receive and receipt for all monies becoming payable
thereunder, the same to apply, at the option of Lender toward the
payment of the Indebtedness or the repair, restoration or rebuilding
of the Mortgaged Property without affecting the lien of this Mortgage
for the full amount of the Indebtedness before such damage or payment
to Lender took place; and in the event of foreclosure hereunder, all
right, title and interest of Borrower in and to the Fire and Extended
Coverage Policies shall, at the option of the purchaser, pass to the
purchaser at said foreclosure sale and Borrower shall receive credit
in the amount of the applicable refund, if any. Notwithstanding
anything to the contrary contained in this Section, insurance proceeds
payable as a result of any damage to the Mortgaged Property in the
amount of $15,000.00 or less for a single occurrence shall be paid to
Borrower and Borrower shall restore, repair or replace the Mortgaged
Property so damaged in accordance with the provisions of this
Mortgage.
Borrower shall annually, so long as any of the Indebtedness remains
unpaid, at least thirty (30) days prior to any applicable expiration
dates, furnish Lender with receipts showing that the premiums for all
Fire and Extended Coverage Policies have been paid in full for the
next succeeding year. In the event Borrower shall for any reason fail
to: (a) keep any of the Fire and Extended Coverage Policies in effect
with the premiums fully paid; (b) keep the Fire and Extended Coverage
Policies (including renewals thereof) duly assigned and delivered to
Lender; and ) deliver certificates evidencing the renewals of the
Fire and Extended Coverage Policies to Lender; all as above provided,
Lender may (but shall not be obligated to) effect any such insurance
paying the costs and expenses thereof and shall be secured for the
sums so advanced in accordance with the provisions of this Mortgage.
1.06 MONTHLY TAX AND INSURANCE DEPOSITS.
Borrower will, at the option of Lender, at the time of each monthly
payment required by the Notes, deposit with Lender an amount estimated
by Lender to be sufficient to enable Lender to pay at least thirty
(30) days before they become due:
(a) All taxes, assessments, and other similar charges against the
Mortgaged Property; and
(b) Yearly premiums to keep in force the insurance coverage required
herein;
all of which funds shall be held by Lender for the benefit of Borrower
without any obligation of Lender to pay interest thereon and shall be
used and applied by Lender for the purposes and in the manner
prescribed in this Section. In paying such items Lender may rely upon
any tax xxxx, notice of assessment or premium notice furnished to
Lender without further obligation to inquire into the validity or
accuracy of such items. Upon demand of Lender, Borrower will deliver
to Lender such additional monies as are necessary to make up any
deficiency in the amount necessary to enable the Lender to pay the
foregoing items. In the event of a default by Borrower in the
performance of any of the terms, covenants or conditions contained
herein or in the evidence of the Indebtedness, Lender may apply on the
Indebtedness, in such manner as Lender shall determine, any funds of
Borrower then in Lender's possession under this Section. A waiver by
Lender of Lender's rights under this Section for any period of time or
for Borrower or any of Borrower's successors in title shall not
constitute a waiver of the provisions of this Section and Lender may
on one or more occasions exercise its rights hereunder unless such
waiver by Lender shall be in writing and shall specifically provide
that Lender waives all of its rights under this Section for the entire
term of this Mortgage. To the extent Borrower satisfies its
obligations under this Section to deposit with Lender the amounts as
herein above provided, Borrower shall be relieved of any further
obligation to pay taxes, assessments and other similar charges against
the Mortgaged Property and to pay the annual premiums to keep the
required insurance in force as required hereby.
1.07 MAINTENANCE OF IMPROVEMENTS - COMPLIANCE WITH LAWS.
Borrower will:
(a) Keep the Mortgaged Property in good order and repair, and will
not commit or suffer waste thereon, nor remove, raze or demolish any
of the improvements located on the Premises without the prior written
consent of Lender, nor do or permit to be done any act whereby the
Mortgaged Property shall become less valuable;
(b) Perform and comply promptly with, and cause the Mortgaged
Property to be maintained, used and operated in accordance with, any
and all (i) present and future laws, ordinances, rules, regulations
and requirements of every duly constituted governmental or quasi-
governmental authority or agency having jurisdiction over Borrower or
the Mortgaged Property, including without limitation, all applicable
federal, state and local laws pertaining to air and water quality,
hazardous materials, hazardous waste, waste disposal, air emissions
and other environmental matters, all zoning and other land use
matters, and rules, regulations and ordinances of the United States
Environmental Protection Agency and all other applicable federal,
state and local agencies and bureaus; (ii) similarly applicable
orders, rules and regulations of any regulatory, licensing,
accrediting, insurance underwriting or rating organization or other
body exercising similar functions; (iii) similarly applicable duties
or obligations of any kind imposed under any covenant, condition,
agreement or easement, public or private; and (iv) policies of
insurance at any time in force with respect to the Mortgaged Property.
If Borrower receives any notice that Borrower or the Mortgaged
Property is in default under or is not in compliance with any of the
foregoing, or notice of any proceeding initiated under or with respect
to any of the foregoing, Borrower will promptly furnish a copy of such
notice to Lender; and
(c) Maintain and keep in full force and effect all licenses, permits
and consents necessary or required by any such governmental authority
or agency.
Borrower hereby represents and warrants that, neither Borrower nor, to
the best of Borrower's knowledge, any other person or entity used,
generated, stored or disposed of, on, under or about the Mortgaged
Property any hazardous waste, toxic substances or related materials
(hereafter referred to as "Hazardous Materials") (except for cleaning
solvents and other materials commonly used in the conduct of
Borrower's business in full compliance with all applicable laws). For
the purposes of this Mortgage, Hazardous Materials shall include, but
shall not be limited to, any substance, material, or waste which is or
becomes regulated by any State or local government authority or the
United States Government. The term "Hazardous Materials" includes,
without limitation, any material or substance which is listed in the
United States Department of Transportation Hazardous Materials Table
(49 C.F.R. s 172.101) or which is included within the definition of a
"hazardous substance", as that term is defined under the Comprehensive
Environmental Response Compensation and Liability Act [42 U.S.C. s
9601(14)], as the same may be amended from time to time ("CERCLA").
Further, Borrower agrees that it will not permit the storage of any
toxic materials or Hazardous Materials in, on or around the Mortgaged
Property now or at any future time (except for cleaning solvents and
other materials commonly used in the conduct of Borrower's business in
full compliance with all applicable laws) and will indemnify and hold
Lender harmless from and against any loss, liability, cost, expense or
action(s) which may result in connection with Hazardous Materials or
toxic material(s) as they relate to the Mortgaged Property.
Borrower's foregoing indemnity is independent of, and shall not be
measured or affected by: (i) any amounts at any time owing under the
Notes or the other Loan Documents; (ii) the sufficiency or
insufficiency of any collateral (including, without limitation, the
Premises) given to Lender to secure repayment of the Indebtedness;
(iii) any obligations of Borrower under the Notes or the other Loan
Documents; (iv) the consideration given by Lender or any other party
in order to acquire the Premises or any portion thereof; (v) the
modification, expiration or termination of any of the Notes or the
other Loan Documents; or (vi) the discharge or repayment in full of
the Indebtedness (including, without limitation, by amounts paid or
credit bid at a foreclosure sale or by discharge in connection with a
deed in lieu of foreclosure). Borrower's obligations hereunder shall
survive any transfer of title to all or any part of the Premises in
connection with a foreclosure of this Mortgage, including, without
limitation, a sale pursuant to judicial decree or power of sale,
judicial consent foreclosure or by deed in lieu of such foreclosure.
Lender's rights under this Section shall be in addition to any other
rights and remedies under any other document or instrument now or
hereafter executed by Borrower, or at law or in equity (including,
without limitation, any right of reimbursement or contribution
pursuant to CERCLA or any other law related to Hazardous Materials),
and shall not in any way be deemed a waiver of any such rights. All
obligations of Borrower hereunder shall be payable on demand, and
shall bear interest from the date of such demand at a per annum
interest rate equal to the default rate of interest calculated as
specified in the Loan Documents, whether or not any of the other Loan
Documents are then in effect.
If at any time it is determined that there are any toxic materials or
Hazardous Materials located on the Mortgaged Property (other than
cleaning solvents and other materials commonly used in the conduct of
Borrower's business in full compliance with all applicable laws),
Borrower shall diligently commence and continue to take such action,
at its sole expense, as is necessary to comply with all environmental
and safety requirements pertaining to the generation, transportation,
use and disposal of such materials. Failure of Borrower to comply
with all environmental and safety requirements of federal, state or
local laws, statutes, ordinances or regulations, rules, court or
administrative orders or decrees, or private agreements, shall
constitute and be a default under this Mortgage and Lender, in lieu of
foreclosure, shall have the option to require specific performance of
Borrower's obligations hereunder.
Borrower hereby acknowledges and agrees that Lender has not
participated, and shall not participate, in the management of Borrower
and that any indicia of ownership which Lender may have in and to the
Mortgaged Property by virtue of this Mortgage (and the rights granted
to Lender herein) is primarily to protect Lender's security interest
and lien in and to the Mortgaged Property.
If Borrower shall fail to comply with this Section, Lender may effect
any needed repairs or alterations, maintain utility services and
obtain security protection for the Mortgaged Property if the same is
abandoned or vacant, obtain necessary licenses, permits and consents
and take any other action Lender deems necessary to cause the
Mortgaged Property to be in full compliance with this Section. In
each such instance, Lender may (but shall not be obligated to) pay the
costs and expenses thereof and shall be secured hereby for the sums so
advanced.
1.08 PROTECTION OF MORTGAGES PROPERTY AND RIGHTS.
Lender shall have the right and power to institute and maintain or
defend or intervene in such suits and proceedings as it may reasonably
and in good xxxxx xxxx necessary to:
(a) Prevent any impairment of the Mortgaged Property by any acts
which may be unlawful or constitute a violation of this Mortgage;
(b) Enforce, defend, preserve or protect its interest (including the
priority of the lien created hereby) in and to the Mortgaged Property
and the income, royalties, revenue, rents, profits and other benefits
arising therefrom and its rights and remedies under this Mortgage;
(c) Restrain the enforcement of or compliance with any legislation or
other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or
compliance with such enactment, rule or order would substantially
impair the security hereunder or be substantially prejudicial to the
interest of the Lender; and
(d) Defend, preserve or protect its interests should Lender become a
party to any suit or proceeding by reason of this Mortgage.
All of Lender's costs and expenses (including attorneys' fees to the
extent now or hereafter not prohibited by law) incurred in any such
actions shall be secured hereby and be paid by Borrower on demand as
provided herein.
1.09 ADVANCES SECURED.
If Borrower shall fail to perform its obligations under this Mortgage
and if Lender shall advance its funds to ensure performance of such
obligations or if Lender shall advance sums for or in connection with
any suit or proceeding referred to herein, then the sums so advanced
by Lender, together with the costs and expenses of effecting the same,
shall be payable on demand with interest, at the default rate of
interest specified in the Real Estate Term Note, from the date of
payment. All sums advanced by Lender pursuant to the provisions of
the Mortgage and the costs and expenses thereof with interest from the
date of the advance at the default rate of interest specified in the
Real Estate Term Note shall be added to and become a part of the
indebtedness of Borrower until paid and the repayment thereof shall be
secured by this Mortgage with the same priority and in the same manner
as the Indebtedness.
1.10 DAMAGE TO MORTGAGED PROPERTY.
If all or any part of the Mortgaged Property shall be damaged by fire
or other casualty, Borrower will promptly restore the Mortgaged
Property to the equivalent of its original condition, regardless of
whether or not there shall be any insurance proceeds therefor;
provided, however, if Lender shall elect to apply the insurance
proceeds to the payment of the Indebtedness, Borrower shall not be
obligated to restore the Mortgaged Property. If a part of the
Mortgaged Property shall be physically damaged through condemnation,
the Borrower will promptly restore, repair or alter the remaining
property in a manner satisfactory to Lender.
1.11 INSPECTIONS.
Lender is hereby authorized to enter upon and inspect the Mortgaged
Property at any time during normal business hours during the life of
this Mortgage and for such purposes is hereby granted an easement to
enter upon and inspect the Mortgaged Property.
1.12 REPLACEMENTS - ALTERATIONS.
That none of the improvements, fixtures, apparatus, equipment and
personal property, except personal property and trade fixtures owned
by tenants, now or hereafter owned or leased by Borrower and now or
hereafter attached to or located upon and used or furnished in
connection with the operation or letting of the Mortgaged Property or
any part thereof shall be removed unless replaced with similar
property of equal or greater value and no building or other
improvement now or hereafter on the Premises shall be materially
structurally altered without the prior written consent of Lender.
1.13 DEMOLITION - EMINENT DOMAIN - INJURY OR DAMAGE.
Upon the actual or threatened waste, demolition or removal of any of
the improvements now or hereafter on the Mortgaged Property or the
condemnation or other taking (including without limiting the
generality of the foregoing, changes of grades of streets or roads)
under the power of eminent domain of all or any part of the Mortgaged
Property or upon any other damage or injury to or any decrease in the
value of the Mortgaged Property, the entire Indebtedness shall, at the
option of Lender, without notice, become immediately due and payable.
Borrower hereby assigns to Lender as additional security for the
Indebtedness, all awards in any and all such proceedings, including
all awards or payments for injury or damage to or any decrease in the
value of the Mortgaged Property, which may, at the option of Lender,
be applied on the Indebtedness after first deducting the costs and
expenses of Lender (including attorneys' fees to the extent now or
hereafter not prohibited by law) incurred in such proceedings and any
balance of such monies then remaining shall be paid to Borrower.
Borrower will give notice of any such proceedings or event to Lender
and Lender may intervene therein for the protection of its interest in
the Mortgaged Property. Borrower will execute and deliver to Lender
from time to time such further instruments as may be requested by
Lender to confirm such assignment to Lender of any such award or
payment.
1.14 RENT ASSIGNMENT.
That the income, rents and profits and rental value of the Mortgaged
Property and any and all present or future leases and rental and
occupancy agreements are hereby pledged and assigned to Lender as
additional security for the payment of the Indebtedness; provided,
however, until a default or defaults in any of the terms, covenants
and conditions of this Mortgage or of the Notes or any of the Loan
Documents, Borrower shall be suffered and permitted to use and enjoy
the Mortgaged Property and to receive when due, but not more than one
(1) month in advance except upon written approval of Lender, the
income, rents and profits and rental value thereof.
In the event and during the continuance of any default or defaults,
Lender, at its option and without notice, shall have full power and
authority to do and perform any one or more of the following, to-wit:
(a) To take possession of the Mortgaged Property and to operate and
maintain the same with full power and authority to lease the whole or
any part thereof and to collect the income, rents and profits
therefrom;
(b) To institute and carry on all actions and proceedings deemed
necessary for the recovery of possession or the protection of all or
any portion of the Mortgaged Property, and to institute and prosecute
all actions and proceedings for the collection of income, rents and
rental value then due and unpaid and thereafter to become due;
(c) To make repairs, improvements, alterations or additions deemed
necessary;
(d) To pay the costs and expenses (including, to the extent now or
hereafter not prohibited by law, attorneys' fees if one be employed),
of any or all of the foregoing out of the income, rents and profits
received, and to apply the balance toward the cost of discharging the
obligations imposed upon Borrower by this Mortgage and the
Indebtedness; and
(e) Lender shall in addition be entitled to have a receiver appointed
by a court of proper jurisdiction to perform any and all of the
foregoing functions.
The foregoing powers and authorities shall be operative whether or not
foreclosure proceedings have been initiated and shall remain in effect
after sale and during redemption periods, if any. Upon or after
default or defaults in any of the terms, covenants or conditions of
this Mortgage, or the Notes or any other Loan Documents, Lender, in
addition to the foregoing, at its option and without notice, shall
have full right, power and authority to enter upon the Mortgaged
Property and to collect the income, rents and profits hereby assigned
with or without taking actual possession of the Mortgaged Property or
any equivalent action.
1.15 FINANCIAL STATEMENTS.
Borrower, at its expense, shall furnish to Lender all financial
statements and other information required to be provided under the
terms of the Loan Documents.
1.16 LEASES AFFECTING MORTGAGED PROPERTY.
Borrower will not enter into any lease or other agreement for
possession or use of the Mortgaged Property without the prior written
consent of Lender, which consent shall not be unreasonably withheld.
If Borrower is permitted to enter into any lease or other agreement
affecting the Mortgaged Property, Borrower will comply with and
observe its obligations as landlord under all such leases and other
agreements affecting all or any part of the Mortgaged Property.
Borrower will furnish Lender with executed copies of all such leases
(together with all amendments, modifications, addenda and additions
thereof or thereto). Borrower will not, without the prior written
consent of the Lender, reduce the amount of rent due under, extend the
term of, accept surrender of or terminate, either orally or in
writing, any lease or tenancy now existing upon the Mortgaged Property
nor will Borrower waive performance of the obligations of the tenants
thereunder nor permit an assignment or sublease without the prior
written consent of Lender unless the same shall be expressly permitted
by the terms of the lease. Borrower will not accept payment of rent
for more than one (1) month in advance without the prior written
consent of Lender. If requested by Lender, Borrower will separately
assign to Lender, as additional security, any and all such leases
whether now existing or hereafter created, including, without
limitation, all rents, royalties, issues and profits of the Mortgaged
Property from time to time accruing.
At the request of Lender, Borrower will enter into appropriate
agreements that will effect the subordination of this Mortgage to any
present or future leases of all or any part of the Mortgaged Property.
1.17 NO FURTHER ASSIGNMENTS OF LEASES - RENTS.
Borrower will make no assignment of leases, income, rents, profits or
rental value of the Mortgaged Property for any present or future debts
or obligations other than those secured by this Mortgage.
1.18 LEASES - FORECLOSURE.
In the event of a default under this Mortgage, Lender, at Lender's
option, is authorized to foreclose this Mortgage subject to the rights
of any tenants of the Mortgaged Property, and the failure to make any
such tenants parties defendant to any such foreclosure proceeding and
to foreclose their rights will not be, nor be asserted to be by the
Borrower, a defense to any proceedings instituted by the Lender to
collect the Indebtedness or any deficiency remaining unpaid after the
foreclosure sale of the Mortgaged Property.
1.19 MAXIMUM INTEREST.
No provision of this Mortgage, the Notes or any of the other Loan
Documents shall require the payment or permit the collection of
interest in excess of the maximum amount not prohibited by law. If
any such excess interest is provided for, or shall be adjudicated to
be so provided for, in this Mortgage, in the Notes or in any other
Loan Documents, neither Borrower nor its successors in title shall be
obligated to pay such excess interest and the right to demand the
payment of any such excess interest is waived. This provision shall
control any other provision of this Mortgage, the Notes, and the other
Loan Documents. Any such excess interest paid by Borrower shall
automatically be treated as a permitted additional prepayment of
principal, but no premium for such prepayment shall be charged to
Borrower.
1.20 SECURITY AGREEMENT.
This Mortgage constitutes a Security Agreement between Borrower, as
debtor, and Lender, as secured party, with respect to that portion of
the Mortgaged Property, if any, which shall be subject to the Uniform
Commercial Code.
1.21 WAIVER OF REDEMPTION.
In the event of a default by Borrower in the performance of the
obligations imposed upon it by the terms of this Mortgage, the Notes
or the other Loan Documents, neither Borrower nor anyone claiming
through or under it shall or will set up, claim or seek to take
advantage of any stay, extension or redemption laws or redemption
periods or grace periods now or hereafter in force and affecting the
Mortgaged Property in order to prevent or hinder enforcement,
foreclosure, sale, confirmation of sale, or conveyance of the
Mortgaged Property upon foreclosure or the final and absolute putting
in possession thereof immediately after any such sale of the purchaser
or purchasers thereat, and Borrower, for itself and its successors in
title, to the full extent that it may lawfully do so for itself and
its successors in title, hereby waives the benefit of all such laws.
1.22 TRANSFER OR FURTHER ENCUMBRANCE OF MORTGAGED PROPERTY.
In the event that the Borrower sells, assigns, transfers, conveys or
otherwise alienates or further mortgages or encumbers the Mortgaged
Property or any part thereof or interest therein whether legal or
equitable, and whether voluntarily or involuntarily or by operation of
law, without in each such instance the prior written consent of
Lender, which consent may be withheld for any reason, Lender may elect
to (a) declare a default hereunder, (b) declare the total outstanding
Indebtedness, together with interest thereon and premium, if any, at
once due, payable and collectible, and/or (c) exercise any and all
rights and remedies available to Lender by this Mortgage, the Notes,
or any of the other Loan Documents, notice of such election being
expressly waived.
1.23 USE OF MORTGAGED PROPERTY.
Borrower shall operate the Mortgaged Property at all times in
accordance with all applicable laws.
ARTICLE II
DEFEASANCE - DEFAULTS
Borrower covenants and agrees with Lender as follows:
2.01 DEFEASANCE.
If the Indebtedness be paid when due and the covenants and agreements
in this Mortgage, the Notes, and all other Loan Documents be
faithfully kept and performed, then these presents shall be null and
void and the Mortgaged Property shall be released from the lien hereof
at the cost of Borrower.
2.02 DEFAULTS.
Upon the occurrence of an Event of Default (as defined in the Security
Agreement and the Loan Documents), this Mortgage shall stay in force
and during the continuance of any such Event of Default:
(a) Lender may declare the entire Indebtedness (including, without
limitation, unpaid principal, accrued and unpaid interest and
premiums, if any) to be due and payable immediately, and upon any such
declaration the same shall be immediately due and payable;
(b) Lender shall be entitled to foreclose this Mortgage and shall be
entitled to a judgment for the Indebtedness, including all attorney
fees, costs and expenses of enforcing the same, to the extent now or
hereafter not prohibited by law, and shall be entitled to a decree for
the sale of the Mortgaged Property in satisfaction of said judgment
foreclosing all of the rights and equities of Borrower in and to the
Mortgaged Property, as well as all persons claiming under Borrower and
at which sale appraisement of the Mortgaged Property, the marshalling
of assets and all benefits of the Exemption and Stay Laws of the State
of South Dakota are hereby expressly waived by Borrower;
(c) Lender shall continue to have the optional rights to exercise any
or all other powers, rights and remedies given Lender by this
Mortgage, including, but not by way of limitation, the right to pay
taxes, assessments, insurance and the cost of repairs and the like
given to it herein and the repayment of all such funds with interest
thereon as herein provided shall be secured by this Mortgage;
(d) Lender shall have all the rights and remedies of a secured party
under the Uniform Commercial Code; and
(e) Lender shall have, in addition to the foregoing, all rights and
remedies given by law and equity, including the right to have a
receiver appointed for the Mortgaged Property who shall take immediate
possession of the Mortgaged Property, preserve, maintain, manage,
operate and lease the Mortgaged Property and collect all income, rents
and profits therefrom. All income, rents and profits so collected by
such receiver, after first deducting therefrom all costs and expenses
incurred by the receiver in the performance of his rights, duties and
powers as receiver (including the fees of such receiver), shall be
applied to the obligations imposed upon Borrower pursuant to this
Mortgage, the Notes, the Loan Documents or any other Transaction
Document. Any receiver or receivers so appointed shall have such
rights, duties and powers as the court making the appointment shall
confer, which shall include, but not by way of limitation, all of the
rights and powers which Lender is authorized to exercise hereunder.
Lender shall be entitled to such appointment of a receiver for the
Mortgaged Property as a matter of right and if requested by Lender,
Borrower shall consent to the appointment of such receiver. If the
income, rents and profits collected by such receiver from the
Mortgaged Property are not sufficient to pay all costs and expenses
incurred by the receiver in the performance of his rights, duties and
powers as receiver (including the fees of the receiver), Lender may
pay such costs and expenses and the sums so advanced by Lender,
together with interest thereon at the default rate of interest
described in the Loan Documents, shall be immediately due and payable
by Borrower to Lender, shall constitute a part of the indebtedness due
Lender under this Mortgage and shall be secured by this Mortgage.
(f) In the case of a foreclosure by action, the holder of the
certificate of sale may apply to the court for a reduction of the
redemption period if the Mortgaged Property has been abandoned by
Borrower. If, after notice to the parties as the court directs, the
court finds the Mortgaged Property has been abandoned, the redemption
period may be reduced to not less than sixty (60) days from the date
of the recording of the certificate of sale.
Each and every remedy available to Lender pursuant to this Mortgage
shall be cumulative and shall be in addition to every other remedy
available to Lender hereunder, under the Notes, or any of the other
Loan Documents or now or hereafter existing at law or in equity or by
statute. No delay or omission of Lender to exercise any right or
power accruing upon any Event of Default shall impair any such right
or power or shall be construed to be a waiver of any such Event of
Default or any acquiescence therein and every right, power or remedy
given by this Mortgage or now or hereafter existing at law or in
equity or by statute may be exercised from time to time and as often
as may be deemed expedient by Lender.
MISCELLANEOUS
Borrower covenants and agrees with Lender as follows:
3.01 NO WAIVER OF PROVISIONS. No failure by Lender to insist upon
the strict performance of any covenant, agreement, term or condition
of this Mortgage or to exercise any right or remedy consequent upon a
breach thereof, and no acceptance of full or partial payment on the
Indebtedness during the continuance of any such breach, shall
constitute a waiver of any such breach or of such covenant, agreement,
term or condition. No covenant, agreement, term or condition of this
Mortgage to be performed or complied with by Borrower, and no breach
thereof, shall be waived, altered or modified except by an instrument
executed by Lender. No waiver of any breach shall affect or alter
this Mortgage, but each and every covenant, agreement, term and
condition of this Mortgage shall continue in full force and effect
with respect to any other then existing or subsequent breach thereof.
3.02 EXTENSIONS.
That any extension of the time for payment of the Indebtedness,
release of security or any modification of this Mortgage, any of the
Notes, or any of the other Loan Documents granted to any future owner
of the Mortgaged Property, shall not relieve Borrower from liability
to pay the Indebtedness nor release Borrower or any other party or
entity liable for the Indebtedness and Borrower does hereby waive
presentment, demand for payment, protest, notice of nonpayment and
notice of protest.
3.03 POWERS NOT EXHAUSTED.
No right or power given to Lender by this instrument shall be
exhausted by the exercise thereof on one or more occasions, but the
same shall be a continuing right or power during the entire term of
this Mortgage and may be exercised from time to time in accordance
with the provisions of this instrument.
3.04 COVENANTS RUN WITH LAND.
The covenants and agreements herein contained shall run with the land
and shall bind and inure to the benefit of the respective heirs,
executors, administrators, legal representatives, successors and
assigns of the parties hereto.
3.05 SUBROGATION.
Lender before a sale hereunder, and the purchaser at the sale
hereunder, shall be subrogated to the lien of any prior encumbrance or
vendor's lien, if any, on the Mortgaged Property paid out of the money
secured by this Mortgage, whether or not such prior lien or
encumbrance has been released of record.
3.06 SUCCESSORS AND ASSIGNS, ETC.
Whenever the singular or plural number, or masculine, feminine or
neuter gender is used herein, it shall equally include the other, and
every mention of the Lender or Borrower shall include the heirs,
executors, legal representatives, administrators, successors and
assigns of the party so designated. If more than one party or entity
is designated as "Borrower" herein, each such party or entity shall be
jointly and severally liable for the performance and observance of all
the covenants, conditions and agreements of this Mortgage to be
performed and observed by Borrower. The terms "Mortgage", "Notes",
"Security Agreement", "Environmental Indemnity Agreement" and "Loan
Documents" shall include all amendments, modifications and supplements
thereto.
3.07 INVALID PROVISIONS TO AFFECT NO OTHERS.
If any one or more of the covenants, agreements, terms or provisions
contained in this Mortgage, in the Notes or in any of the other Loan
Documents shall be invalid, illegal or unenforceable in any respect,
the validity of the remaining covenants, agreements, terms or
provisions contained herein, in the Notes and in the Loan Documents
shall be in no way affected, prejudiced, limited or impaired thereby.
3.08 NOTICE.
All notices to be given pursuant to this Mortgage shall be sufficient
if given in accordance with the terms of the other Loan Documents.
3.09 HEADINGS.
The headings of the Sections of this Mortgage are for convenience of
reference only, are not to be considered a part hereof, and shall not
limit or otherwise affect any of the terms hereof or the
interpretation hereof.
3.10 GOVERNING LAW.
This Mortgage shall be construed according to and shall be governed by
South Dakota law.
IN WITNESS WHEREOF, Borrower has executed these presents as of the day
and year first above written.
AMCON Distributing Company
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name (print): Xxxxxxx X. Xxxxx
---------------------------
Title: VP and CFO
---------------------------
STATE OF NEBRASKA
ss.
COUNTY OF XXXXXXX
This instrument was acknowledged before me on DECEMBER 21, 2004, by
Xxxxxxx X. Xxxxx, as VP and CFO of AMCON DISTRIBUTING COMPANY
a foreign corporation.
Notary Public in and for said County and State
My Appointment Expires: February 7, 2005
/s/ Xxx Xxxxx
-----------------
EXHIBIT A
Legal Description
Lot 1R in Block Two (2), Rushmore Regional Industrial Park, City of
Rapid City, as shown by the plat recorded in Book 16 of plats on page
107 in the office of the Register of Deeds, Xxxxxxxxxx County, South
Dakota.
