HomeMy WebLinkAbout#5173 Kencor Ethnic Foods RESOLUTION NO 5173
RESOLUTION APPROVING A REVOLVING LOAN TO
KENCOR ETHNIC FOODS, INC.
WHEREAS, Kencor Ethnic Foods, Inc. has applied for a Revolving Loan through the
City of Canton's Revolving Loan Committee and also through the City of Canton;
WHEREAS, the City of Canton Revolving Loan Committee recommended approval of
the requested loan and entry into a Promissory Installment Note Agreement with Kencor Ethnic
Foods, Inc.;
WHEREAS, the City of Canton has determined it is necessary and in the best interest of
the City of Canton to enter into a Promissory Installment Note with Kencor Ethnic Foods, Inc.,
set forth in Exhibit A attached hereto and incorporated herein.
NOW THEREFORE BE IT RESOLVED BE IT RESOLVED BY THE CITY
COUNCIL OF THE CITY OF CANTON, FULTON COUNTY, ILLINOIS, AS FOLLOWS:
I. That the Promissory Installment Note, Personal Guaranty, Security Agreement and
UCC Agreement attached hereto and incorporated herein as Exhibit A are hereby
approved by the City of Canton City Council;
2. That the Mayor of the City of Canton, Illinois, is hereby authorized and directed to
execute said documents on behalf of the City of Canton.
3. That this Resolution shall be in full force and effect immediately upon its passage by
the City Council of the City of Canton, Fulton County, Illinois, and approved by the
Mayor thereof.
PASSED by the City Council of the City of Canton, Illinois,at a regular meeting this 20`h day of
November, 2018, upon a roll call vote as follows:
AYES: Alderman Ryan Mayhew,Justin Nelson, John Lovell, Craig West, Angela Hale,
Tad Putrich, Angela Lingenfelter, Quin Mayhew
NAYS: None
ABSENT: None
APPR(tp: ��
n . . I )
Kent A. c owell, Mayor
ATTEST.
Diana Pavley, City Clerk
i
PROMISSORY NOTE
Borrower: Kencor Ethnic Foods, Inc. Lender: CITY OF CANTON,A MUNICIPAL
2 Enterprise Lane CORPORATION
Canton, IL 61520 2 N.MAIN STREET
CANTON,IL 61520
309-647-0065
Principal Amount: $ 40,000.00 Date of Note: December 18,2018
PROMISE TO PAY. KENCOR ETHNIC FOODS, INC. ("Borrower") promises to pay to
CITY OF CANTON, A MUNICIPAL CORPORATION, ("Lender"), or order, in lawful
money of the United States of America, the principal amount of FORTY THOUSAND
Dollars ($40,000.00), together with interest on the unpaid principal balance from January
1, 2019, calculated as described in the "INTEREST CALCULATION METHOD"
paragraph using an interest rate of 5%, until paid in full. The interest rate may change
under the terms and conditions of the "INTEREST AFTER DEFAULT" section. This note
shall mature on December 1,2028.
PAYMENT. Borrower will pay this loan over a ten (10) year period with 120 payments.
For the first six months interest only shall be paid in the amount of$166.67. Thereafter,
and for the remaining 114 payments, Borrower shall pay $441.50 each payment.
Borrower's first payment is due, and all subsequent payments are due on the same day of
each month after that. Borrower's final payment will be due on, and will be for all
principal and all accrued interest not yet paid. Payments include principal and interest.
Unless otherwise agreed or required by applicable law, payments will be applied first to
any accrued unpaid interest; then to principal; then to any unpaid collection costs; and
then to any late charges. Borrower will pay Lender at Lender's address shown above or at
such other place as lender may designate in writing. Attached hereto is the Amortization
Schedule detailing said payments.
INTEREST CALCULATION METHOD. Interest on this Note is computed on a 365/360
basis; that is, by applying the ratio of the interest rate over a year of 360 days, multiplied
by the outstanding principal balance, multiplied by the actual number of days the principal
balance is outstanding. All interest payable under this Note is computed using this method.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier
than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower
of Borrower's obligation to continue to make payments under the payment schedule. Rather,
Page 1 of 5
early payments will reduce the principal balance due and may result in Borrower's making fewer
payments. Borrower agrees not to send Lender payments marked "paid in full", "without
recourse", or similar language. If Borrower sends such a payment, Lender may accept it without
losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any
further amount owed to Lender. All written communications concerning disputed amounts,
including any check or other payment instrument that indicates that the payment
constitutes "payment in full" of the amount owed or that is tendered with other conditions
or limitations or as full satisfaction of a disputed amount must be mailed or delivered to:
CITY OF CANTON, 2 N. MAIN STREET, CANTON,IL 61520.
LATE CHARGE: If a payment is 10 days or more late, Borrower will be charged 20% of the
regularly scheduled payment or$35.00, whichever is greater.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity,
the interest rate on this Note shall be increased by 5.000 percentage points. However, in no event
will the interest rate exceed the maximum interest rate limitations under applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event of Default")
under this Note:
Payment Default. Borrower fails to make any payment when due under this Note.
Other Defaults. Borrower fails to comply with or to perform any other term, obligation,
covenant or condition contained in this Note or in any of the related documents or to comply
with or to perform any term, obligation, covenant or condition in any other agreement between
Lender and Borrower.
Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension
of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of
any other creditor or person that may materially affect any of Borrower's property or Borrower's
ability to repay this Note or perform Borrower's obligations under this Note or any of the related
documents.
False Statements. Any warranty, representation or statement made or famished to Lender by
Borrower or on Borrower's behalf under this Note or the related documents is false or
misleading in any material respect either now or at the time made or furnished or becomes false
or misleading at any time thereafter.
Death or Insolvency. The death of Borrower or the dissolution or termination of Borrower's
existence as a going business, the insolvency of Borrower, the appointment of a receiver for any
part of Borrower's property, any assignment for the benefit of creditors, any type of creditor
workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by
or against Borrower.
Credit or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings,
whether by judicial proceeding, self-help, repossession or any other method, by any creditor of
Page 2 of 5
Borrower or by any governmental agency against any collateral securing the loan. This includes
a garnishment of any of Borrower's accounts, including deposit accounts with Lender. However,
this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity
or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if
Borrower gives lender written notice of the creditor or forfeiture proceeding and deposits with
Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor,
endorser, surety, or accommodation party of any of the indebtedness or any guarantor, endorser,
surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity
of, or liability under, any guaranty of the indebtedness evidenced by this Note.
Adverse Change. A material adverse change occurs in Borrower's financial condition, or
Lender believes the prospect of payment or performance of this Note is impaired.
Insecurity. Lender in good faith believes itself insecure.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal balance
under this Note and all accrued unpaid interest immediately due, and then Borrower will pay that
amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this
Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to
any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether
or not there is a lawsuit, including attorneys' fees, expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction), and appeals. If not
prohibited by applicable law, Borrower also will pay any court costs, in addition to all other
sums provided by law.
GOVERNING LAW. This Note shall be governed, construed and interpreted by, through
and under the Laws of the State of Illinois. This Note has been accepted by Lender in the
State of Illinois.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to submit
and resolve all matters related hereto to the jurisdiction of the courts of FULTON County, State
of Illinois.
CONFESSION OF JUDGMENT. Borrower hereby irrevocably authorizes and empowers any
attorney-at-law to appear in any court of record and to confess judgment against Borrower for
the unpaid amount of this Note as evidenced by an affidavit signed by an officer of Lender
setting forth the amount then due, attorneys' fees plus costs of suit, and to release all errors, and
waive all rights of appeal. If a copy of this Note, verified by an affidavit, shall have been filed in
the proceeding, it will not be necessary to file the original as a warrant of attorney. Borrower
Page 3 of 5
waives the right to any stay of execution and the benefit of all exemption laws now or hereafter
in effect. No single exercise of the foregoing warrant and power to confess judgment will be
deemed to exhaust the power, whether or not any such exercise shall be held by any court to be
invalid, voidable, or void; but the power will continue undiminished and may be exercised from
time to time as Lender may elect until all amounts owing on this Note have been paid in full.
Borrower hereby waives and releases any and all claims or causes of action which Borrower
might have against any attorney acting under the terms of authority which Borrower has granted
herein arising out of or connected with the confession of judgment hereunder.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of$20.00 if Borrower makes a
payment on Borrower's loan and the check or preauthorized charge with which Borrower pays is
later dishonored.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of
setoff in all Borrower's accounts with Lender (whether checking, savings, or some other
account). This includes all accounts Borrower holds jointly with someone else and all accounts
Borrower may open in the future. However this does not include any IRA or Keogh accounts, or
any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender, to
the extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness
against any and all accounts, and, at Lender's option,to administratively freeze all such accounts
to allow Lender to protect Lender's charge and setoff rights provided in this paragraph.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon
Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit
of Lender and its successors and assigns.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER
REPORTING AGENCIES. Borrower may notify Lender if Lender reports any inaccurate
information about Borrower's account(s) to a consumer reporting agency. Borrower's written
notice describing the specific inaccuracy(ies) should be sent to Lender at the following address:
CITY OF CANTON, 2 N. MAIN STREET, CANTON, IL 61520.
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will not affect
the rest of the Note. Lender may delay or forgo enforcing any of its rights or remedies under this
Note without losing them. Borrower and any other person who signs, guarantees or endorses this
Note, to the extent allowed by law, waive presentment, demand for payment, and notice of
dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in
writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender may renew or
extend (repeatedly and for any length of time) this loan or release any party or guarantor or
Page 4 of 5
collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and
take any other action deemed necessary by Lender without the consent of or notice to anyone.
All such parties also agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made. The obligations under this
Note are joint and several.
ILLINOIS INSURANCE NOTICE. Unless Borrower provides Lender with evidence of the
insurance coverage required by Borrower's agreement with Lender, Lender may purchase
insurance at Borrower's expense to protect Lender's interest in the collateral. This
insurance may, but need not, protect Borrower's interests. The coverage that Lender
purchases may not pay any claim that Borrower makes or any claim that is made against
Borrower in connection with the collateral. Borrower may later cancel any insurance
purchased by Lender, but only after providing Lender with evidence that Borrower has
obtained insurance as required by their agreement. If Lender purchases insurance for the
collateral, Borrower will be responsible for the costs of that insurance, including interest
and any other charges Lender may impose in connection with the placement of the
insurance, until the effective date of the cancellation or expiration of the insurance. The
costs of the insurance may be added to Borrower's total outstanding balance or obligation.
The costs of the insurance may be more than the cost of insurance Borrower may be able to
obtain on Borrower's own.
PRIOR TO SIGNING THIS NOTE, BOROWER READ AND UNDERSTOOD ALL THE
PROVISIONS OF THIS NOTE. BORROWERS AGREES TO THE TERMS OF THIS
NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS
PROMISSORY NOTE.
BORROWER:
KENCOR ETHNIC FOODS C.
By.
MO M. ENOWMBITANG, Posident
By:
JEA . ENOWMBITANG, Vice President
Page 5 of 5
8 1
Tx:4004
8 06 2 8 1
242
1983953
RETURN TO:
CITY OF CANTON,A MUNICIPAL CORPORATION 3AMES I. NELSON
COUNTY CLERK&RECORDER
2 N. MAIN STREET FULTON COUNTY,IL
CANTON, IL 61520 RECORDED ON
01/02/2019 09:31 AM
RECORDING FEE 67.00
GAGES: IS
FOR RECORDER'S USE ONLY
This Mortgage prepared by:
City of Canton,a Municipal Corporation
2 N. Main Street
Canton, IL 61520
MORTGAGE
MAXIMUM LIEN. At no time shall the principal amount of Indebtedness secured by the
Mortgage, not including sums advanced to protect the security of the Mortgage, exceed the
note amount of$40,000.00
THIS MORTGAGE dated December 18, 2018 is made and executed between KENCOR
ETHNIC FOODS, INC. (referred to below as "Grantor") and CITY OF CANTON, A
MUNICIPAL CORPORATION, whose address is 2 N. MAIN STREET, CANTON, IL
61520 (referred to below as "Lender").
GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages, warrants, and
conveys to Lender all of Grantor's right, title, and interest in and to the following described real
property, together with all existing or subsequently erected or affixed buildings, improvements
and fixtures; all easements, rights of way, and appurtenances; all water, water rights,
MORTGAGE
(Continued)
watercourses and ditch rights (including stock in utilities with ditch or irrigation rights); and all
other rights, royalties, and profits relating to the real property, including without limitation all
minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Fulton
County, State of Illinois:
TRACT
Part of Lot Number Two (2) of the Enterprise Industrial District pursuant to the Subdivision Plat
thereof filed in the Fulton County (Illinois) Recorder's Office on October 26, 1984, as
Instrument Number 84-8960, and being more particularly described as follows: Commencing at
the Northwest comer of said Lot Number 2; thence running East along the North line of said Lot
Number 2 a distance of 217.80 feet to an iron pin; thence, running South a distance of 200.02
feet to an iron pin set in the South line of said Lot Number 2; thence , running West along the
South line of said Lot Number 2 a distance of 217.80 feet to an iron pin (being also the
Southwest comer of said Lot); thence running North along the West line of said Lot Number 2 a
distance of 200.02 feet to the Point of Beginning, situated in Fulton County, Illinois.
PIN: 09-08-29-402-002
Property Address: 2 Enterprise Lane, Canton, Illinois 61520
TRACTII
Lot Number Three (3) of the Enterprise Industrial District pursuant to the Subdivision Plat
thereof filed in the Fulton County (Illinois) Recorder's Office on October 26, 1984, as
Instrument Number 84-8960, all being situated in the City of Canton, County of Fulton and State
of Illinois.
PIN: 09-08-29-402-004
Property Address: 3 Enterprise Lane, Canton, Illinois 61520
Grantor presently assigns to lender all of the Grantor's right, title, and interest in and to all
present and future leases of the Property and all Rents from the Property. In addition, Grantor
grants to lender a Uniform Commercial Code security interest in the Personal Property and
Rents.
THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE
SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO
SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF
ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS,
AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE
FOLLOWING TERMS:
Page 2 of 18
MORTGAGE
(Continued)
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Grantor
shall pay to Lender all amounts secured by this Mortgage as they become due and shall strictly
perform all of Grantor's obligations under this Mortgage.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's
possession and use of the Property shall be governed by the following provisions:
Possession and Use. Until the occurrence of an Event of Default, Grantor may
(1)remain in possession and control of the Property; (2) use, operate or manage the
Property; and (3) collect the Rents from the Property.
Duty to Maintain. Grantor shall maintain the Property in tenantable condition
and promptly perform all repairs, replacements, and maintenance necessary to preserve
its value.
Compliance With Environmental Laws. Grantor represents and warrants to
Lender that: (1) During the period of Grantor's ownership of the Property,there has been
no use, generation, manufacture, storage, treatment, disposal, release or threatened
release of any Hazardous Substance by any person on, under, about or from the Property;
(2) Grantor has no knowledge of or reason to believe that there has been, except as
previously disclosed to and acknowledged by Lender in writing, and (a) any breach or
violation of any Environmental Laws, (b) any use, generation, manufacture, storage,
treatment, disposal, release or threatened release of any Hazardous Substance on, under,
about or from the Property by any prior owners or occupants of the Property, or (c) any
actual or threatened litigation or claims of any kind by any person relating to such
matters; and (3) Except as previously disclosed to and acknowledged by Lender in
writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of
the Property shall use, generate, manufacture, store, treat, dispose of or release any
Hazardous Substance on, under, about or from the Property; and (b) any such activity
shall be conducted in compliance with all applicable federal, state, and local laws,
regulations and ordinances, including without limitation all Environmental Laws.
Grantor authorizes Lender and its agents to enter upon the Property to make such
inspections and tests, at Grantor's expense, as lender may deem appropriate to determine
compliance of the Property with this section of the Mortgage. Any inspections or tests
made by Lender shall be for Lender's purposes only and shall not be construed to create
any responsibility or liability on the part of the Lender to Grantor or to any other person.
The representations and warranties contained herein are based on Grantor's due diligence
in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and
waives any future claims against Lender for indemnity or contribution in the event
Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to
indemnify, defend, and hold harmless Lender against any and all claims, losses,
liabilities, damages, penalties, and expenses which Lender may directly or indirectly
Page 3 of 18
MORTGAGE
(Continued)
sustain or suffer resulting from a breach of this section of the Mortgage or as a
consequence of any use, generation, manufacture, storage, disposal, release or threatened
release occurring prior to Grantor's ownership or interest in the Property, whether or not
the same was or should have been known to Grantor. The provisions of this section of
the Mortgage, including the obligation to indemnify and defend, shall survive the
payment of the indebtedness and the satisfaction and the reconveyance of the lien of this
Mortgage and shall not be affected by Lender's acquisition of any interest in the
Property, whether by foreclosure or otherwise.
Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit,
permit, or suffer any stripping of or waste on or to the Property or any portion of the
Property. Without limiting the generality of the foregoing, Grantor will not remove, or
grant to any other party the right to remove, any timber, minerals (including oil and gas),
coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent.
Removal of Improvements. Grantor shall not demolish or remove any Improvements
from the Real Property without Lender's prior written consent. As a condition to the
removal of any Improvements, Lender may require Grantor to make arrangements,
satisfactory to Lender to replace such improvements with improvements of at least equal
value.
Lender's Right to Enter. Lender and Lender's agents and representatives may enter
upon the Real Property at all reasonable times to attend to lender's interests and to
inspect the Real Property for purposes of Grantor's compliance with the terms and
conditions of this Mortgage.
Compliance with Governmental Requirements. Grantor shall promptly comply with
all laws, ordinances, and regulations, now or hereafter in effect, of all governmental
authorities applicable to the use or occupancy of the Property, including without
limitation, the Americans With Disabilities Act. Grantor may contest in good faith any
such law, ordinance or regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Grantor has notified Lender in writing prior to
doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are
not jeopardized. Lender may require Grantor to post adequate security or a surety bond,
reasonable satisfactory to Lender, to protect Lender's interest.
Duty to Protect. Grantor agrees neither to abandon nor leave unattended the Property.
Grantor shall do all other acts in addition to those acts set forth above in this section,
which from the character and use of the Property are reasonably necessary to protect and
preserve the Property.
Page 4 of IS
MORTGAGE
(Continued)
DUE ON SALE- CONSENT BY LENDER Lender may, at lender's option, declare
immediately due and payable all sums secured by this Mortgage upon the sale or transfer,
without Lender's prior written consent, of all or any part of the Real Property, or any interest in
the Real Property. A "sale or transfer" means the conveyance of Real Property or any right, title
or interest in the Real Property; whether legal, beneficial or equitable; whether voluntary or
involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for
deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale,
assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real
Property, or by any other method of conveyance of an interest in the Real Property. However,
this option shall not be exercised by Lender if such exercise is prohibited by federal law or by
Illinois law.
TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property
are part of this Mortgage:
Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes,
payroll taxes, special taxes, assessments, water charges and sewer service charges levied
against or on account of the Property, and shall pay when due all claims for work done on
or for services rendered or material furnished to the Property. Grantor shall maintain the
Property free of any liens having priority over or equal to the interest of Lender under this
Mortgage, except for those liens specifically agreed to in writing by Lender, and except
for the lien of taxes and assessments not due as further specified in the Right to Contest
paragraph.
Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in
connection with a good faith dispute over the obligation to pay, so long as Lender's
interest in the Property is not jeopardized. If a lien arises or is filed as a result of
nonpayment, Grantor shall within fifteen (15) days after the lien arises, or, if a lien is
filed, within fifteen (15) days after Grantor has notice of the filing, secure the discharge
of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate
surety bond or other security satisfactory to Lender in an amount sufficient to discharge
the lien plus any costs and attorneys' fees, or other charges that could accrue as a result of
a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender
and shall satisfy any adverse judgment before enforcement against the Property. Grantor
shall time Lender as an addition obligee under any surety bond furnished in the contest
proceedings.
Evidence of Payment. Grantor shall upon demand fumish to Lender satisfactory
evidence of payment of the taxes or assessments and shall authorize the appropriate
governmental official to deliver to Lender at any time a written statement of the taxes and
assessments against the Property.
Page 5 of 18
MORTGAGE
(Continued)
Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any
work is commenced, any services are furnished, or any materials are supplied to the
Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on
account of the work, services, or materials. Grantor will upon request of Lender furnish
to Lender advance assurances satisfactory to lender that Grantor can and will pay the cost
of such improvements.
PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the
Property are a part of this Mortgage:
Maintenance of Insurance. Grantor shall procure and maintain policies of fire
insurance with standard extended coverage endorsements on a replacement basis for the
full insurable value covering all improvements on the Real Property in an amount
sufficient to avoid application of any coinsurance clause, and with a standard mortgagee
clause in favor of Lender. Grantor shall procure and maintain comprehensive general
liability insurance in such coverage amounts as lender may request with Lender being
named as additional insureds in such liability insurance policies. Additionally, Grantor
shall maintain such other insurance, including but not limited to hazard, business
interruption and boiler insurance as Lender may require. Policies shall be written by such
insurance companies and in such form as may be reasonably acceptable to Lender.
Grantor shall deliver to Lender certificates of coverage from each insurer containing a
stipulation that coverage will not be cancelled or diminished without a minimum of thirty
(30) days' prior written notice to Lender and not containing any disclaimer of the
insurer's liability for failure to give such notice. Each insurance policy also shall include
an endorsement providing that coverage in favor of Lender will not be impaired in any
way by and act, omission or default of Grantor or any other person. Should the Real
Property be located in an area designated by the Administrator of the Federal Emergency
Management Agency as a special flood hazard area, Grantor agrees to obtain and
maintain Federal Flood Insurance, if available, for the full unpaid principal balance of the
loan and any prior liens on the property securing the loan, up to the maximum policy
limits set under the National Flood Insurance Program, or as otherwise required by
Lender, and to maintain such insurance for the term of the loan.
Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to
the Property. Lender may make proof of loss if Grantor fails to do so within fifteen (15)
days of the casualty. Whether or not Lender's security is impaired, Lender may, at
Lender's election, receive and retain the proceeds of any insurance and apply the
proceeds to the reduction of the indebtedness, payment of any lien affecting the Property,
or the restoration and repair of the Property. If Lender elects to apply the proceeds to
restoration and repair, Grantor shall repair or replace the damaged or destroyed
Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof
of such expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost
Page 6 of 18
MORTGAGE
(Continued)
of repair or restoration if Grantor is not in default under this Mortgage. Any proceeds
which have not been disbursed within 180 days after their receipt and which Lender has
not committed to the repair or restoration of the Property shall be used first to pay any
amount owing to Lender under this Mortgage, then to pay accrued interest, and the
remainder, if any, shall be applied to the principal balance of the Indebtedness. If lender
holds any proceeds after payment in full of the indebtedness, such proceeds shall be paid
to Grantor as Grantor's interests may appear.
LENDER'S EXPENDITURES. In any action or proceeding is commenced that would
materially affect Lender's interest in the Property or if Grantor fails to comply with any
provision of this Mortgage or any Related Documents, including but not limited to Grantor's
failure to discharge or pay when due any amounts Grantor is required to discharge or pay under
this Mortgage or any Related Documents, Lender on Grantor's behalf may (but shall not be
obligated to) take any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any
time levied or placed on the Property and paying all costs for insuring, maintaining and
preserving the Property. All such expenditures incurred or paid by Lender for such purposes will
then bear interest at the rate charged under the Note from the date incurred or paid by Lender to
the date of repayment by Grantor. All such expenses will become part of the indebtedness and,
at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Note and
be apportioned among and be payable with any installment payments to become due during
either (1) the temr of any applicable insurance policy; or (2) the remaining term of the Note; or
(C) be treated as a balloon payment which will be due and payable at the Note's maturity. The
Mortgage also will secure payment of these amounts. Such right shall be in addition to all other
rights and remedies to which Lender may be entitled upon Default.
WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the
Property are a part of the Mortgage:
Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the
Property in fee simple, free and clear of all liens and encumbrances other than those set
forth in the Real Property description or in any title insurance policy, title report, or final
title opinion issued in favor of, and accepted by, Lender in connection with this
Mortgage, and (b) Grantor has the full right, power, and authority to execute and deliver
this Mortgage to Lender.
Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and
will forever defend the title to the Property against the lawful claims of all persons. In
the event any action or proceeding is commenced that questions Grantor's title or the
interest of Lender under this Mortgage, Grantor shall defend the action at Grantor's
expense. Grantor may be the nominal party in such proceeding, but Lender shall be
entitled to participate in the proceeding and to be represented in the proceeding by
counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, to
Page 7 of 18
MORTGAGE
(Continued)
Lender such instruments as Lender may request from time to time to permit such
participation.
Compliance With Laws. Grantor warrants that the Property and Grantor's use of the
Property complies with all existing applicable laws, ordinances, and regulations of
governmental authorities.
Survival of Representations of Warranties. All representations, warranties, and
agreements made by Grantor in this Mortgage shall survive the execution and delivery of
this Mortgage, shall be continuing in nature, and shall remain in full force and effect until
such time as Grantor's Indebtedness shall be paid in full.
CONDEMNATION. The following provisions relating to condemnation proceedings are a part
of this Mortgage:
Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify
Lender in writing, and Grantor shall promptly take such steps as may be necessary to
defend the action and obtain the award. Grantor may be the nominal party in such
proceeding, but the Lender shall be entitled to participate in the proceeding and to be
represented in the proceeding by counsel of its own choice, and Grantor will deliver or
cause to be delivered to Lender such instruments and documentation as may be requested
by Lender from time to time to permit such participation.
Application of Net Proceeds. If all or any part of the Property is condemned by eminent
domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender
may at its election require that all or any portion of the net proceeds of the award be
applied to the Indebtedness or the repair or restoration of the Property. The net proceeds
of the award shall mean the award after payment of all reasonable costs, expenses, and
attorneys' fees incurred by Lender in connection with the condemnation.
IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL
AUTHORITES. The following provisions relating to governmental taxes, fees and charges are
a part of this Mortgage:
Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such
documents in addition to this Mortgage and take whatever other action is requested by
Lender to perfect and continue Lender's lien on the Real Property. Grantor shall
reimburse Lender for all taxes, as described below, together with all expenses incurred in
recording, perfecting or continuing this Mortgage, including without limitation all taxes,
fees, documentary stamps,and other charges for recording or registering this Mortgage.
Taxes. The following shall constitute taxes to which this section applies: (1) a specific
tax upon this type of Mortgage or upon all or any part of the Indebtedness secured by this
Mortgage: (2) a specific tax on Grantor which Grantor is authorized or required to
deduct from payments on the Indebtedness secured by this type of Mortgage; (3) a tax
on this type of Mortgage chargeable against the Lender or the holder of the Note; and
(4) a specific tax on all or any portion of the Indebtedness or on payments of principal
and interest made by Grantor.
Page 8 of 18
MORTGAGE
(Continued)
Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the
date of this Mortgage, this event shall have the same effect as an Event of Default, and
Lender may exercise any or all of its available remedies for an Event of Default as
provided below unless Grantor either (1) pays the tax before it becomes delinquent, or
(2) contests the tax as provided above in the Taxes and Liens section and deposits with
Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender.
SECURITY AGREEMENT: FINANCING STATEMENTS. The following provisions
relating to this Mortgage as a security agreement are a part of this Mortgage:
Security Agreement. This instrument shall constitute a Security Agreement to the
extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a
secured party under the Uniform Commercial Code as amended from time to time.
Security Interest. Upon request by Lender, Grantor shall take whatever action is
requested by Lender to perfect and continue Lender's security interest in the Rents and
Personal Property. In addition to recording this Mortgage in the real property records,
Lender may, at any time and without further authorization from Grantor, file executed
counterparts, copies or reproductions of this Mortgage as a financing statement. Grantor
shall reimburse Lender for all expenses incurred in perfecting or continuing this security
interest. Upon default, Grantor shall not remove, sever or detach the Personal Property
from the Property. Upon default, Grantor shall assemble any Personal Property not
affixed to the Property in a manner and at a place reasonable convenient to Grantor and
Lender and make it available to Lender within three (3) days after receipt of written
demand from lender to the extent permitted by applicable law.
Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) from
which information concerning the security interest granted by this Mortgage may be
obtained (each as required by the Uniform Commercial Code) are as stated on the first
page of this Mortgage.
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to
further assurances and attorney-in-fact are a part of this Mortgage:
Further Assurances. At any time, and from time to time, upon request of lender,
Grantor will make, execute and deliver, or will cause to be made, executed or delivered,
to lender or to Lender's designee, and when requested by Lender, cause to be filed,
recorded, refilled, or rerecorded, as the case may be, at such times and in such offices and
places as Lender may deem appropriate, any and all such mortgages, deeds, or trust,
security deeds, security agreements, financing statements, continuation statements,
instruments of further assurance, certificates, and other documents as may, in the sole
opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect,
continue, or preserve (1) Grantor's obligations under the Note, this Mortgage, and the
Related Documents, and (2) the liens and security interests created by this Mortgage as
first and prior liens on the Property, whether now owned or hereafter acquired by
Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor
Page 9 of 19
MORTGAGE
(Continued)
shall reimburse Lender for all costs and expenses incurred in connection with the matters
referred to in this paragraph.
Attorney-in-Fact. If Grantor fails to do any of the things referred to in the preceding
paragraph, Lender may do so for and in the name of the Grantor and at Grantor's
expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor's
attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and
doing all other things as may be necessary or desirable, in Lender's sole opinion, to
accomplish the matters referred to in the preceding paragraph.
FULL PERFORMANCE. If Grantor pays all of the Indebtedness when due, and otherwise
performs all the obligations imposed upon Grantor under this Mortgage, Lender shall execute
and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of
termination of any financing statement on file evidencing Lender's security interest in the Rents
and the Personal Property. Grantor will pay, if permitted by applicable law, any reasonable
termination fee as determined by Lender from time to time.
REINSTATEMENT OF SECURITY INTEREST. If payment is made by Grantor, whether
voluntarily or otherwise, or by guarantor or by any third party,on the Indebtedness and thereafter
Lender is forced to remit the amount of that payment (A) to Grantor's trustee in bankruptcy or
to any similar person under any federal or state bankruptcy law or law for the relief of debtors,
(B) by reason of any judgment, decree or order of any court or administrative body having
jurisdiction over Lender or any of Lender's property, or (C) by reason of any settlement or
compromise of any claim made by Lender with any claimant (including without limitation
Grantor), the Indebtedness shall be considered unpaid for the purpose of enforcement of this
Mortgage and this Mortgage shall continue to be effective or shall be reinstated, as the case may
be notwithstanding any cancellation of this Mortgage or of any note or other instrument or
agreement evidencing the Indebtedness and the Property will continue to secure the amount
repaid or recovered to the same extent as if that amount never had been originally received by
Lender, and Grantor shall be bound by any judgment, decree, order, settlement or compromise
relating to the Indebtedness or to this Mortgage.
EVENTS OF DEFAULT. Each of the following, at Lender's option, shall constitute an Event
of Default under this Mortgage:
Payment Default. Grantor fails to make any payment when due under the Indebtedness.
Default on Other Payments. Failure of Grantor within the time required by this
Mortgage to make any payment for taxes or insurance, or any other payment necessary to
prevent filing of or to effect discharge of any lien.
Other Defaults. Grantor fails to comply with or to perform any other term, obligation,
covenant or condition contained in this Mortgage or in any of the Related Documents or
to comply with or to perform any term, obligation, covenant or condition contained in
any other agreement between Lender and Grantor.
Page 10 of 18
MORTGAGE
(Continued)
Default in Favor of Third Parties. Should Grantor default under any loan, extension of
credit, security agreement, purchase or sales agreement, or any other agreement, in favor
of any other creditor or person that may materially affect any of Grantor's property or
Grantor's ability to repay the Indebtedness or Grantor's ability to perform Grantor's
obligations under this Mortgage or any of the Related Documents.
False Statements. Any warranty, representation or statement made or famished to
Lender by Grantor or on Grantor's behalf under this Mortgage or the Related Documents
is false or misleading in any material respect, either now or at the time made or famished
or becomes false or misleading at any time thereafter.
Defective Collateralization. This Mortgage or any of the Related Documents ceases to
be in full force and effect (including failure of any collateral document to create a valid
and perfected security interest or lien)at any time and for any reason.
Death or Insolvency. The death of Grantor, the insolvency of Grantor, the appointment
of a receiver for any part of Grantor's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any proceeding under
any bankruptcy or insolvency laws by or against Grantor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any other method,
by any creditor or Grantor or by any governmental agency against any property securing
the indebtedness. This includes a garnishment of any of Grantor's accounts, including
deposit accounts with Lender. However, this Event of Default shall not apply if there is a
good faith dispute by Grantor as to the validity or reasonableness of the claim which is
the basis of the creditor or forfeiture proceeding and if Grantor gives Lender written
notice of the creditor forfeiture proceeding and deposits with Lender monies or a surety
bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its
sole discretion, as being an adequate reserve or bond for the dispute.
Breach of Other Agreement. Any breach by Grantor under the terms of any other
agreement between Grantor and Lender that is not remedied within any grace period
provided therein, including without limitation any agreement concerning any
indebtedness or other obligation of Grantor to Lender, whether existing now or later.
Events Affecting Guarantor. Any of the preceding events occurs with respect to any
guarantor, endorser, surety, or accommodation party of any of the indebtedness or any
guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or
revokes or disputes the validity of,or liability under, any Guaranty of the indebtedness.
Adverse Change. A material adverse change occurs in Grantor's financial condition, or
Lender believes the prospect of payment or performance of the Indebtedness is impaired.
Insecurity. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and
at any time thereafter, Lender, at Lender's option, may exercise any one or more of the following
rights and remedies, in addition to any other rights or remedies provided by law:
Page 11 of 18
MORTGAGE
(Continued)
Accelerate Indebtedness. Lender shall have the right at its option without notice to
Grantor to declare the entire Indebtedness immediately due and payable, including any
prepayment penalty that Grantor would be required to pay.
UCC Remedies. With respect to all or any part of the Personal Property, Lender shall
have all the rights and remedies of a secured party under the Uniform Commercial Code.
Collect Rents. Lender shall have the right, without notice to Grantor, to take possession
of the Property and collect the Rents, including amounts past due and unpaid, and apply
the net proceeds, over and above Lender's casts, against the Indebtedness. In furtherance
of this right, Lender may require any tenant or other user of the Property to make
payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then
Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse
instruments received in payment thereof in the name of Grantor and to negotiate the same
and collect the proceeds. Payments by tenants or other users to Lender in response to
Lender's demand shall satisfy the obligations for which the payments are made, whether
or not any proper grounds for the demand existed. Lender may exercise its rights under
this subparagraph either in person,by agent, or through a receiver.
Mortgagee in Possession. Lender shall have the right to be placed as mortgagee in
possession or to have a receiver appointed to take possession of all or any part of the
Property, with the power to protect and preserve the Property, to operate the Property
preceding foreclosure or sale, and to collect the Rents from the Property and apply the
proceeds, over and above the cost of the receivership, against the Indebtedness. The
mortgagee in possession or receiver may serve without bond if permitted by law.
Lender's right to the appointment of a receiver shall exist whether or not the apparent
value of the Property exceeds the Indebtedness by a substantial amount. Employment by
lender shall not disqualify a person from serving as a receiver.
Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest
in all or any part of the Property.
Deficiency Judgment. If permitted by applicable law, Lender may obtain ajudgment for
any deficiency remaining in the Indebtedness due to Lender after application of all
amounts received from the exercise of the rights provided in this section.
Other Remedies. Lender shall have all other rights and remedies provided in this
Mortgage or the Note or available at law or in equity.
Sale of the Property. To the extent permitted by applicable law, Grantor hereby waives
any and all right to have the Property marshalled. In exercising its rights and remedies,
Lender shall be free to sell all or any part of the Property together or separately, in one
sale or by separate sales. Lender shall be entitles to bid at any public sale on all or any
portion of the Property.
Notice of Sale. Lender shall give Grantor reasonable notice of the time and place of any
public sale of the Personal Property or of the time after which any private sale or other
intended disposition of the Personal Property is to be made. Reasonable notice shall
Page 12 of 18
MORTGAGE
(Continued)
mean notice given at least ten (10) days before the time of the sale or disposition. Any
sale of the Personal Property may be made in conjunction with any sale of the Real
Property.
Election of Remedies. Election by Lender to pursue any remedy shall not exclude
pursuit of any other remedy, and an election to make expenditures or to take action to
perform an obligation of Grantor under this Mortgage, after Grantor's failure to perform,
shall not affect Lender's right to declare a default and exercise its remedies. Nothing
under this Mortgage or otherwise shall be construed so as to limit or restrict the rights and
remedies available to Lender following an Event of Default, or in any way to limit or
restrict the rights and ability of Lender to proceed directly against Grantor and/or against
any other co-maker, guarantor, surety or endorser and/or to proceed against any other
collateral directly or indirectly securing the Indebtedness.
Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the
terms of this Mortgage, lender shall be entitled to recover such sum as the court may
adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any
court action is involved, and to the extent not prohibited by law, all reasonable expenses
Lender incurs that in Lender's opinion are necessary at any time for the protection of its
interest or the enforcement of its rights shall become a part of the Indebtedness payable
on demand and shall bear interest at the Note rate from the date of the expenditure until
repaid. Expenses covered by this paragraph include, without limitation, however subject
to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses,
whether or not there is a lawsuit, including attorneys' fees and expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services, the cost of searching
records, obtaining title reports (including foreclosure reports), surveyors' reports, and
appraisal fees and title insurance, to the extent permitted by applicable law. Grantor also
will pay any court costs, in addition to all other sums provided by law.
NOTICES. Any notice required to be given under this Mortgage, including without limitation
any notice of default and any notice of sale shall be given in writing, and shall be effective when
actually delivered, when actually received by telefscsimile (unless otherwise required by law),
when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in
the United States mail, as first class, certified or registered mail postage prepaid, directed to the
addresses shown near the beginning of this Mortgage. All copies of notices of foreclosure from
the holder of any lien which has priority over this Mortgage shall be sent to Lender's address, as
shown new the beginning of this Mortgage. Any party may change its address for notices under
this Mortgage by giving formal written notice to the other parties, specifying that the purpose of
the notice is to change the party's address. For notice purposes, Grantor agrees to keep Lender
informed at all times of Grantor's current address. Unless otherwise provided or required by
Page 13 of 18
MORTGAGE
(Continued)
law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to
be notice given to all Grantors.
MISCELLANEIOUS PROVISIONS. The following miscellaneous provisions are a part of
this Mortgage:
Amendments. This Mortgage, together with any Related Documents, constitutes the
entire understanding and agreement of the parties as to the matters set forth in this
Mortgage. No alteration of or amendment to this Mortgage shall be effective unless
given in writing and signed by the party or parties sought to be charged or bound by the
alteration or amendment.
Annual Reports. If the Property is used for purposes other than Grantor's residence,
Grantor shall furnish to Lender, upon request, a certified statement of net operating
income received from the Property during Grantor's previous fiscal year in such form and
detail as Lender shall require. "Net operating income" shall mean all cash receipts from
the Property less all cash expenditures made in connection with the operation of the
Property.
Caption Headings. Caption headings in this Mortgage are for convenience purposes
only and are not to be used to interpret or define the provisions of this Mortgage.
Governing Law. This Mortgage will be governed by federal law applicable to
Lender and, to the extent not preempted by federal law, the laws of the State of
Illinois without regard to its conflicts of law provisions. This Mortgage has been
accepted by Lender in the State of Illinois.
Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit
to the jurisdiction of the courts of FULTON County, State of Illinois.
No Waiver by Lender. Lender shall not be deemed to have waived any rights under this
Mortgage unless such waiver is given in writing and signed by Lender. No delay or
omission on the part of Lender in exercising any right shall operate as a waiver of such
right or any other right. A waiver by Lender of a provision of this Mortgage shall not
prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance
with that provision or any other provision of this Mortgage. No prior waiver by Lender,
nor any course of dealing between Lender and Grantor, shall constitute a waiver of any of
Lender's rights or of any of Grantor's obligations as to any future transactions.
Whenever the consent of Lender is required under this Mortgage, the granting of such
consent by Lender in any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
Severability. If a court of competent jurisdiction finds any provision of this Mortgage to
be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make
the offending provision illegal, invalid, or unenforceable as to any other circumstance. If
feasible, the offending provision shall be considered modified so that it becomes legal,
Page 14 of 18
MORTGAGE
(Continued)
valid and enforceable. If the offending provision cannot be so modified, it shall be
considered deleted from this Mortgage. Unless otherwise required by law, the illegality,
invalidity, or unenforceability of any provision of this Mortgage shall not affect the
legality, validity or enforceability of any other provision of this Mortgage.
Merger. There shall be no merger of the interest or estate created by this Mortgage with
any other interest or estate in the Property at any time held by or for the benefit of Lender
in any capacity, without the written consent of Lender.
Successors and Assigns. Subject to any limitations stated in this Mortgage on transfer of
Grantor's interest, this Mortgage shall be binding upon and inure to the benefit of the
parties, their successors and assigns. If ownership of the Property becomes vested in a
person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's
successors with reference to this Mortgage and the Indebtedness by way of forbearance
or extension without releasing Grantor from the obligations of this Mortgage or liability
under the Indebtedness.
Time is of the Essence. Time is of the essence in the performance of this Mortgage.
Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and
benefits of the homestead exemption laws of the State of Illinois as to all Indebtedness
secured by this Mortgage.
DEFINITIONS. The following capitalized words and terms shall have the following meanings
when used in this Mortgage. Unless specifically stated to the contrary, all references to dollar
amounts shall mean amounts in lawful money of the United States of America. Words and terms
used in the singular shall include the plural, and the plural shall include the singular, as the
context may require. Words and the terms not otherwise defined in this Mortgage shall have the
meanings attributed to such terms in the Uniform Commercial Code:
Borrower. The word `Borrower" means ICENCOR ETHNIC FOODS, INC. and
includes all co-signers and co-makers signing the Note and all their successors and
assigns.
Default. The word "Default" means the Default set forth in this Mortgage in the section
titled"Default".
Environmental Laws. The words`Environmental Laws"mean any and all state, federal
and local statues, regulations and ordinances relating to the protection of human health of
the environment, including without limitation the Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601,
et seq. ("CEFCLS"), the Superfund Amendments and Reauthorization Act of 1986, Pub.
L.No. 99-499 ("SARA"), the Hazardous Materials Transportation Act,49 U.S.C. Section
1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et
seq., or other applicable state or federal laws, rules, or regulations adopted pursuant
thereto.
Page 15 of 18
MORTGAGE
(Continued)
Event of Default. The words "Event of Default" mean any of the events of default set
forth in this Mortgage in the events of default section of this Mortgage.
Grantor. The word"Grantor"means KENCOR ETHNIC FOODS,INC.
Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety,
or accommodation party to Lender, including without limitation a guaranty of all or part
of the Note.
Hazardous Substances. The words "Hazardous Substances" mean materials that,
because of their quantity, concentration, or physical, chemical or infectious
characteristics, may cause or pose a present or potential hazard to human health or the
environment when improperly used, treated, stored, disposed of, generated,
manufactured, transported or otherwise handled. The words "Hazardous Substances" are
used in their very broadest sense and include without limitation any and all hazardous or
toxic substances, materials or waste as defined by or listed under the Environmental
Laws. The term "Hazardous Substances" also includes, without limitation, petroleum
and petroleum by-products or any fraction thereof and asbestos.
Improvements. The word"Improvements" means all existing and future improvements,
buildings, structures, mobile homes affixed on the Real Property, facilities, additions,
replacements and other construction on the Real Property.
Indebtedness. The word "Indebtedness" means all principal, interest, and other
amounts, costs and expenses payable under the Note or Related Documents, together with
all renewals of, extensions of, modifications of, consolidations of and substitutions for
the Note or Related Documents and any amounts expended or advanced by Lender to
discharge Grantor's obligations or expenses incurred by Lender to enforce Grantor's
obligations under this Mortgage, together with interest on such amounts as provided in
this Mortgage.
Leader. The word "Lender" means THE CITY OF CANTON, A MUNICIPAL
CORPORATION, its successors and assigns.
Mortgage. The word"Mortgage" means this Mortgage between Grantor and Lender.
Note. The word "Note" means the promissory note dated December 18, 2018, in the
original principal amount of $40,000.00 from Grantor to Lender, together with all
renewals of, extensions of, modifications of, refinancing of, consolidations of, and
substitutions for the promissory note or agreement. The interest rate on the Note is 5%
based on a year of 360 days. The Note is payable over a ten (10) year period with 120
payments. For the first six months interest only shall be paid in the amount of$166.67.
Thereafter, and for the remaining 114 payments, Borrower shall pay $441.50 each
payment.
Personal Property. The words "Personal Property" mean all equipment, fixtures, and
other articles of personal property now or hereafter owned by Grantor, and now or
hereafter attached or affixed to the Real Property; together with all accessions, parts, and
additions to, all replacements of, and all substitutions for, any of such property; and
Page 16 of 18
MORTGAGE
(Continued)
together with all proceeds (including without limitation all insurance proceeds and
refunds of premiums) from any sale or other disposition of the Property.
Property. The word "Property" means collectively the Real Property and the Personal
Property.
Real Property. The words "Real Property" mean the real property, interests and rights,
as further described in this Mortgage.
Related Documents. The words "Related Documents"mean all promissory notes, credit
agreements, loan agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection
with the Indebtedness.
Rents. The word "Rents" means all present and future rents, revenues, income, issues,
royalties,profits, and other benefits derived from the Property.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
MORTGAGE,AND GRANTOR AGREES TO ITS TERMS.
GRANTOR:
KENCOR ETHNIC FOODS, INC.
By:
MO M. ENOWMBITANG, Pres'
By: IVB
JEA M. ENOWMBITANG, Vice President
INDIVIDUAL ACKNOWLEDGMENT
STATE OF ILLINOIS )
) SS
COUNTY OF FULTON )
On this day before me, the undersigned Notary Public, personally appeared MORGAN M.
ENOWMBITANG, to me known to be the individual described in and who executed the Commercial
Guaranty, and acknowledged that he or she signed the Guaranty as his or her free and voluntary act and
deed, for the uses and purposes therein mentioned.
Page 17 of 18
MORTGAGE
(Continued)
Given and my h `d�a/n/d fficial seal this 18th day of December,201/8.
By / Residing at Aak,IG.. Jif
Notary Public in and for the State of Illinois.
My commission expires OFFICIALSEAL;
Id1ehlC—LIC"'VTRN100'X f I
6'MY CO PUBLIC-STATE OF ILLINOIS
PdY COMfdIS510N EXPIRES 12/16119
STATE OF ILLINOIS )
) SS
COUNTY OF FULTON )
On this day before me, the undersigned Notary Public, personally appeared JEAN M. ENOWMBITANG,
to me known to be the individual described in and who executed the Commercial Guaranty, and
acknowledged that he or she signed the Guaranty as his or her free and voluntary act and deed, for the uses
and purposes therein mentioned.
1
Given der my, and hnd off, ial seal this 18th day of December. 2018.
/
By Residing at
Notary Public in and for the State of Illinois.
OFFICIAL SEAL
My commission expires ^ ,d
NOTP.RV PU6LIC STATE OP
Y ILLINOIS
EXPIRES
COMMISSION I 12116/19
Page 18 of 18
COMMERCIAL SECURITY AGREEMENT
Grantor: Kencor Ethnic Foods, Inc. Lender: CITY OF CANTON,A MUNICH-AL
2 Enterprise Lane CORPORATION
Canton,IL 61520 2 N.MAIN STREET
CANTON,IL 61520
309-647-0065
THIS COMMERCIAL SECURITY AGREEMENT dated December 18, 2018 is made and
executed between KENCOR ETHNIC FOODS, INC. ("Grantor") and CITY OF
CANTON,A MUNICIPAL CORPORATION ("Lender").
GRANT OF SECURITY INTEREST. For valuable consideration, Grantor grants to
Lender a security interest in the Collateral to secure the Indebtedness and agrees that
Lender shall have the rights stated in this Agreement with respect to the Collateral, in
addition to all other rights which Lender may have by law.
COLLATERAL DESCRIPTION. The word "Collateral" as used in this Agreement means the
following described property in which Grantor is giving to Lender a security interest for the
payment of the Indebtedness and performance of all other obligations under the Note and this
Agreement:
All inventory, equipment, accounts receivables,existing now or hereinafter acquired;
In addition,the word"Collateral"also includes the following:
(A) All accessions, attachments, accessories, replacements of and additions to any of the
collateral described herein,whether added now or later.
(B) All products and produce of any of the property described in this Collateral section.
(C) All accounts, general intangibles, instruments, rents, monies, payments, and all other
rights, arising out of a sale, lease, consignment or other disposition of any of the property
described in this Collateral section.
(D) All proceeds (including insurance proceeds) from the sale, destruction, loss, or other
disposition of any of the property described in this Collateral section, and sums due from
a third party who has damaged or destroyed the Collateral or from that party's insurer,
whether due to judgment, settlement or other process.
(E) All records and data relating to any of the property described in this Collateral
section, whether in the form of a writing, photograph, microfilm, microfische, or
electronic media, together with all of the Grantor's right, title, and interest in and to all
2
computer software required to utilize, create, maintain, and process any such records or
data on electronic media.
GRANTOR'S REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE
COLLATERAL. With respect to the Collateral, Grantor represents and promises to Lender
that:
Perfection of Security Interest. Grantor agrees to take whatever actions are requested
by Lender to perfect and continue Lender's security interest in the Collateral. Upon
request of Lender, Grantor will deliver to Lender any and all of the documents
evidencing or constituting the Collateral and Grantor will note Lender's interest upon any
and all chattel paper and instruments if not delivered to Lender for possession by Lender.
Notices to Lender. Grantor will promptly notify Lender in writing at Lender's address
shown above (or such other addresses as Lender may designate from time to time) prior
to any (1) change in Grantor's name; (2) change in Grantor's assumed business names
(s); (3) change in the authorized signer(s); (4) change in Grantor's principal office
address; (5) change in Grantor's principal residence; (6) conversion of Grantor to a
new or different type of business entity; or (7) change in any other aspect of Grantor that
directly in indirectly relates to any agreements between Grantor and Lender. No change
in Grantor's name or principal residence will take effect until after Lender has received
notice.
No Violation. The execution and delivery of this Agreement will not violate any law or
agreement governing Grantor or to which Grantor is a party.
Enforceability of Collateral. To the extent the Collateral consists of accounts, chattel
paper, or general intangibles, as defined by the Uniform Commercial Code, the Collateral
is enforceable in accordance with its terms, is genuine, and fully complies with all
applicable laws and regulations concerning form, content and manner of preparation and
execution, and all persons appearing to be obligated on the Collateral have authority and
capacity to contract and are in fact obligated as they appear to be on the Collateral. There
shall be no setoffs or counterclaims against any of the Collateral, and no agreement shall
have been made under which any deductions or discounts may be claimed concerning the
Collateral except those disclosed to Lender in writing.
Location of the Collateral. Except for vehicles, and except otherwise in the ordinary
course of Grantor's business, Grantor agrees to keep the Collateral at Grantor's address
shown above or at such other locations as are acceptable to Lender. If the Collateral is a
vehicle, Grantor will keep the Collateral at those addresses except for routine travel.
Upon Lender's request, Grantor will deliver to Lender in form satisfactory to Lender a
schedule of real properties and Collateral locations relating to Grantor's operations,
including without limitation the following: (1) all real property Grantor owns or is
purchasing; (2) all real property Grantor is renting or leasing; (3) all storage facilities
2
3
Grantor owns, rents, leases, or uses; and (4) all other properties where Collateral is or
may be located.
Removal of the Collateral. Except in the ordinary course of Grantor's business, Grantor
shall not remove the Collateral from its existing location without Lender's prior written
consent. To the extent that the Collateral consists of vehicles, or other titled property,
Grantor shall not take or permit any action which would require application for
certificates of title for the vehicles outside the State of Illinois, without Lender's prior
written consent. Grantor shall, whenever requested, advise Lender of the exact location
of the Collateral.
Transactions Involving Collateral. Except for inventory sold or accounts collected in
the ordinary course of Grantor's business, or as otherwise provided for in this Agreement,
Grantor shall not sell, offer to sell, or otherwise transfer or dispose of the Collateral.
Grantor shall not pledge, mortgage, encumber or otherwise permit the Collateral to be
subject to any lien, security interest, encumbrance, or charge, other than the security
interest provided for in this Agreement, without the prior written consent of Lender. This
includes security interests even if junior in right to the security interests granted under
this Agreement. Unless waived by Lender, all proceeds from any disposition of the
Collateral (for whatever reason) shall be held in trust for Lender and shall not be
commingled with any other funds; provided however, this requirement shall not
constitute consent by Lender to any sale or other disposition. Upon receipt, Grantor shall
immediately deliver any such proceeds to Lender.
Title. Grantor represents and warrants to Lender that Grantor holds good and marketable
title to the Collateral, free and clear of all liens and encumbrances except for the lien of
this Agreement. No financing statement covering any of the Collateral is on file in any
public office other than those which reflect the security interest created by this
Agreement, or to which Lender has specifically consented. Grantor shall defend
Lender's rights in the Collateral against the claims and demands of all other persons.
Repairs and Maintenance. Grantor agrees to keep and maintain, and to cause others to
keep and maintain, the Collateral in good order, repair and condition at all times while
this Agreement remains in effect. Grantor further agrees to pay when due all claims for
work done on, or services rendered or material furnished in connection with the
Collateral so that no lien or encumbrance may ever attach to or be filed against the
Collateral.
Inspection of Collateral. Lender and Lender's designated representatives and agents
shall have the right at all reasonable times to examine and inspect the Collateral wherever
located.
Taxes, Assessments, and Liens. Grantor will pay when due all taxes, assessments and
liens upon the Collateral, its use or operation, upon the Agreement, upon any promissory
note or notes evidencing the Indebtedness, or upon any of the other Related Documents.
Grantor may withhold any such payment or may elect to contest any lien if Grantor is in
3
4
good faith conducting an appropriate proceeding to contest the obligation to pay and so
long as Lender's interest in the Collateral is not jeopardized in Lender's sole opinion. If
the Collateral is subjected to a lien which is not discharged within fifteen (15) days,
Grantor shall deposit with Lender cash, a sufficient corporate surety bond or other
security satisfactory to Lender in an amount adequate to provide for the discharge of the
lien plus any interest, costs, attorneys' fees or other charges that could accrue as a result
of foreclosure or sale of the Collateral. In any contest Grantor shall defend itself and
Lender and shall satisfy any final adverse judgment before enforcement against the
Collateral. Grantor shall name Lender as an additional oblige under any surety bond
furnished in the contest proceedings. Grantor further agrees to famish Lender with
evidence that such taxes, assessments, and governmental and other charges have been
paid in full and in a timely manner. Grantor may withhold any such payment or may
elect to contest any lien if Grantor is in good faith conducting an appropriate proceeding
to contest the obligation to pay and so long as Lender's interest in the Collateral is not
jeopardized.
Compliance with Governmental Requirements. Grantor shall comply promptly with
all laws, ordinances, rules and regulations of all governmental authorities, now or
hereafter in effect, applicable to the ownership, production, disposition, or use of the
Collateral, including all laws or regulations relating to the undue erosion of highly-
erodible land or relating to the conversation of wetlands for the production of an
agricultural product or commodity. Grantor may contest in good faith any such law,
ordinance or regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as lender's interest in the Collateral, in Lender's opinion, is
notjeopardized.
Hazardous Substances. Grantor represents and warrants that the collateral never has
been, and never will be so long as this Agreement remains a lien on the Collateral, used
in violation of any Environmental Laws or for the generation, manufacture, storage,
transportation, treatment, disposal, release or threatened release of any hazardous
Substance. The representations and warranties contained herein are based on Grantor's
due diligence in investigating the Collateral for Hazardous Substances. Grantor hereby
(1) releases and waives any future claims against Lender for indemnity or contribution in
the event Grantor becomes liable for cleanup or other costs under any Environmental
Laws, and (2) agrees to indemnify, defend, and hold harmless Lender against any and all
claims and losses resulting from a breach of this provision of this Agreement. This
obligation to indemnify and defend shall survive the payment of the Indebtedness and the
satisfaction of this Agreement.
Maintenance of Casualty Insurance. Grantor shall procure and maintain all risks
insurance, including without limitation fire, theft and liability coverage together with
such other insurance as lender may require with respect to the Collateral, in form,
amounts, coverages and basis reasonable acceptable to Lender and issued by a company
4
5
or companies reasonable acceptable to Lender. Grantor, upon request of Lender, will
deliver to Lender from time to time the policies or certificates of insurance in form
satisfactory to Lender, including stipulations that coverages will not be cancelled or
diminished without at least thirty (30) days' prior written notice to Lender and not
including any disclaimer of the insurer's liability for failure to give such a notice. Each
insurance policy also shall include an endorsement providing that coverage in favor of
Lender will not be impaired in any way by any act, omission or default of Grantor or any
other person. In connection with all policies covering assets in which Lender holds or is
offered a security interest, Grantor will provide Lender with such loss payable or other
endorsements as Lender may require. If Grantor at any time fails to obtain or maintain
any insurance as required under this Agreement, Lender may (but shall not be obligated
to) obtain such insurance as Lender deems appropriate, including if Lender so chooses
"single interest insurance", which will cover only Lender's interest in the Collateral.
Application of Insurance Proceeds. Grantor shall promptly notify Lender of any loss or
damage to the Collateral, whether or not such casualty or loss is covered by insurance.
Lender may make proof of loss if Grantor fails to do so within fifteen (15) days of the
casualty. All proceeds of any insurance on the Collateral, including accrued proceeds
thereon, shall be held by Lender as part of the Collateral. If Lender consents to repair or
replacement of the damaged or destroyed Collateral, Lender shall, upon satisfactory proof
of expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost of
repair or restoration. If Lender does not consent to repair or replacement of the
Collateral, Lender shall retain a sufficient amount of the proceeds to pay all of the
Indebtedness, and shall pay the balance to Grantor. Any proceeds which have not been
disbursed within six (6) months after their receipt and which Grantor has not committed
to the repair or restoration of the Collateral shall be used to prepay the Indebtedness.
Insurance Reserves. Lender may require Grantor to maintain with Lender reserves for
payment of insurance premiums, which reserves shall be created by monthly payments
from Grantor of a sum estimated by Lender to be sufficient to produce, at least fifteen
(15) days before the premium due date, amounts at least equal to the insurance premiums
to be paid. If fifteen (15) days before payment is due, the reserve funds are insufficient;
Grantor shall upon demand pay any deficiency to Lender. The reserve funds shall be
held by Lender as a general deposit and shall constitute a non-interest-bearing account
which Lender may satisfy by payment of the insurance premiums required to be paid by
Grantor as they become due. Lender does not hold the reserve funds in trust for Grantor,
and Lender is not the agent of Grantor for payment of the insurance premiums required to
be paid by Grantor. The responsibility for the payment of premiums shall remain
Grantor's sole responsibility.
Insurance Reports. Grantor, upon request of Lender, shall furnish to Lender reports on
each existing policy of insurance showing such information as lender may reasonably
request including the following (1) the time of the insurer; (2) the risks insured; (3)
5
6
the amount of the policy; (4) the property insured; (5) the then current value on the
basis of which insurance has been obtained and the manner of determining that value;
and (6) the expiration date of the policy. In addition, Grantor shall upon request by
Lender (however not more often than annually) have an independent appraiser
satisfactory to Lender determine, as applicable, the cash value or replacement cost of the
Collateral.
Financing Statements. Grantor authorizes Lender to file a UCC financing statement, or
alternatively, a copy of this Agreement to perfect Lender's security interest. At Lender's
request, Grantor additionally agrees to sign all other documents that are necessary to
perfect, protect, and continue Lender's security interest in the Property. This includes
making sure Lender is shown as the first and only security interest holder on the title
covering the Property. Grantor will pay all filing fees, title transfer fees, and other fees
and costs involved unless prohibited by law or unless Lender is required by law to pay
such fees and costs. Grantor irrevocably appoints lender to execute documents necessary
to transfer title if there is a default. Lender may file a copy of this Agreement as a
financing statement. Grantor will promptly notify Lender of any change to Grantor's
name or the time of any individual Grantor, any individual who is a partner for a
Grantor, and any individual who is a trustee or settler or trustor for a Grantor under this
Agreement. Grantor will also promptly notify Lender of any change to the name that
appears on the most recently issued, unexpired driver's license or state-issued
identification card, any expiration of the most recently issued driver's license or state-
issued identification card for Grantor or any individual for whom Grantor is required to
provide notice regarding name changes.
GRANTOR'S RIGHT TO POSSESSION. Until default, Grantor may have possession of the
tangible personal property and beneficial use of all the Collateral and may use it in any lawful
manner not inconsistent with this Agreement or the Related Documents, provided that Grantor's
right to possession and beneficial use shall not apply to any Collateral where possession of the
Collateral by Lender is required by law to perfect Lender's security interest in such Collateral. If
Lender at any time has possession of any Collateral, whether before or after an Event of Default,
Lender shall be deemed to have exercised reasonable care in the custody and preservation of the
Collateral if Lender takes such action for that purpose as Grantor shall request or as Lender, in
Lender's sole discretion, shall deem appropriate under the circumstances, but failure to honor
any request by Grantor shall not of itself be deemed to be a failure to exercise reasonable cue.
Lender shall not be required to take any steps necessary to preserve any rights in the Collateral
against prior parties, nor to protect, preserve or maintain any security interest given to secure the
Indebtedness.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Grantor fails to comply with any
6
7
provision of this Agreement or any Related Documents, including but limited to Grantor's failure
to discharge or pay when due any amounts Grantor is required to discharge or pay under this
Agreement or any Related Documents, Lender on Grantor's behalf may (but shall not be
obligated to) take any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any
time levied or placed on the Collateral and paying all costs for insuring, maintaining and
preserving the Collateral. All such expenditures incurred or paid by lender for such purposes
will then bear interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a part of the
Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to the
balance of the Note and be apportioned among and be payable with any installment payments to
become due during either (1) the term of any applicable insurance policy; or (2) the remaining
tern of the Note; or (C) be treated as a balloon payment which will be due and payable at the
Note's maturity. The Agreement also will secure payment of these amounts. Such right shall be
in addition to all other rights and remedies to which Lender may be entitled upon Default.
REINSTATEMENT OF SECURITY INTEREST. If payment is made by Grantor, whether
voluntarily or otherwise, or by guarantor or by any third party,on the Indebtedness and thereafter
Lender is forced to remit the amount of that payment(A)to Grantor's trustee in bankruptcy or to
any similar person under any federal or state bankruptcy law or law for the relief of debtors, (B)
by reason of any judgment, decree or order of any court or administrative body having
jurisdiction over Lender or any of Lender's property, or (C) by reason of any settlement or
compromise of any claim made by Lender with any claimant (including without limitation
Grantor), the Indebtedness shall be considered unpaid for the purpose of enforcement of this
Agreement and this Agreement shall continue to be effective or shall be reinstated, as the case
may be, notwithstanding any cancellation of this Agreement or of any note or other instrument or
agreement evidencing the Indebtedness and the Collateral will continue to secure the amount
repaid or recovered to the same extent as if that amount never had been originally received by
Lender, and Grantor shall be bound by any judgment, decree, order, settlement or compromise
relating to the Indebtedness or to this Agreement.
DEFAULT. Each of the following shall constitute an Event of Default under this Agreement:
Payment Default. Grantor fails to make any payment when due under the Indebtedness.
Other Defaults. Grantor fails to comply with or to perform any other term, obligation,
covenant or condition contained in the Agreement or in any of the Related Documents or
to comply with or to perform any term, obligation, covenant or condition contained in
any other agreement between Lender and Grantor.
Default in Favor of Third Parties. Grantor defaults under any loan, extension or credit,
security agreement, purchase or sales agreement, or any other agreement, in favor of any
7
8
other creditor or person that may materially affect any of Grantor's property or ability to
perform Grantor's obligations under this Agreement or any of the Related Documents.
False Statements. Any warranty, representation or statement made or furnished to
Lender by Grantor or on Grantor's behalf under this Agreement or the Related
Documents is false or misleading in any material respect, either now or at the time made
or furnished or becomes false or misleading at any time thereafter.
Defective Collateralization. This Agreement or any of the Related Documents ceases to
be in full force and effect (including failure of any collateral document to create a valid
and perfected security interest or lien)at any time and for any reason.
Death or insolvency. The death of Grantor, the insolvency of Grantor, the appointment
of a receiver for any part of Grantor's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any proceeding under
any bankruptcy or insolvency laws by or against Grantor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceedings, self-help, repossession or any other
method, by any creditor of Grantor or by any governmental agency against any collateral
securing the Indebtedness. This includes a garnishment of any of Grantor's accounts,
including deposit accounts with Lender. However, this Event of Default shall not apply
if there is a good faith dispute by Grantor as to the validity or reasonableness of the claim
which is the basis of the monies or a surety bond for the creditor or forfeiture proceeding
in an amount determined by Lender, in its sole discretion, as being an adequate reserve or
bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect to any
guarantor, endorser, surety or accommodation party of any of the Indebtedness or
guarantor, endorser, surety, or accommodation party dies or becomes incompetent or
revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness.
Adverse Change. A material adverse change occurs in Grantor's financial condition, or
Lender believes the prospect of payment or performance of the Indebtedness is impaired.
Insecurity. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If any Event of Default occurs under this
Agreement, at any time thereafter, lender shall have all the rights of a secured party under the
Illinois Commercial Code. In addition and without limitation, Lender may exercise any one or
more of the following rights and remedies:
Accelerate Indebtedness. Lender may declare the entire Indebtedness, including any
prepayment penalty which Grantor would be required to pay, immediately due and
payable, without notice of any kind to Grantor.
Assemble Collateral. Lender may require Grantor to deliver to Lender all or any portion
of the Collateral and any and all certificates of title and other documents relating to the
Collateral. Lender may require Grantor to assemble the Collateral and make it available
8
9
to Lender at a place to be designated by Lender. Lender also shall have full power to
enter upon the property of Grantor to take possession of and remove the Collateral. If the
Collateral contains other goods not covered by this Agreement at the time of
repossession, Grantor agrees Lender may take such other goods, provided that Lender
makes reasonable efforts to return them to Grantor after repossession.
Sell the Collateral. Lender shall have full power to sell, lease, transfer, or otherwise
deal with the Collateral or proceeds thereof in Lender's own name or that of Grantor.
Lender may sell the Collateral at public auction or private sale. Unless the Collateral
threatens to decline speedily in value or is of a type customarily sold on a recognized
market, Lender will give Grantor, and other persons as required by law, reasonable notice
of the time and place of any public sale, or the time after which any private sale or any
other disposition of the Collateral is to be made. However,no notice need be provided to
any person who, after Event of Default occurs, enters into and authenticates an agreement
waiving that person's right to notification of sale. The requirements of reasonable notice
shall be met if such notice is given at least twenty-one (21) days before the time of the
sale or disposition. All expenses relating to the disposition of the Collateral, including
without limitation the expenses of retaking, holding, insuring, preparing for sale and
selling the Collateral, shall become a part of the Indebtedness secured by this Agreement
and shall be payable on demand, with interest at the Note rate from date of expenditure
until repaid.
Mortgage in Possession. Lender shall have the right to be placed as mortgagee in
possession or to have a receiver appointed to take possession of all or any part of the
Collateral, with the power to protect and preserve the Collateral, to operate the Collateral
preceding foreclosure or sale, and to collect the Rents from the Collateral and apply the
proceeds, over and above the cost of the receivership, against the Indebtedness. The
mortgagee in possession or receiver may serve without bond if permitted by law.
Lender's right to the appointment of a receiver shall exist whether or not the apparent
value of the Collateral exceeds the Indebtedness by a substantial amount. Employment
by Lender shall not disqualify a person from serving as a receiver.
Collect Revenue, Apply Accounts. Lender, either itself or through a receiver, may
collect the payments, rents, and revenues from the Collateral. Lender may at any time in
Lender's discretion transfer any Collateral into Lender's own name or that of Lender's
nominee and receive payments, rents, income, and revenues therefrom and hold the same
as security for the Indebtedness or apply it to payment of the Indebtedness in such order
of preference as lender may determine. Insofar as the Collateral consists of accounts,
general intangibles, insurance policies, instruments, chattel paper, chooses in action, or
similar property, Lender may demand, collect, receipt for, settle, compromise, adjust, sue
for, foreclose, or realize on the Collateral as Lender may determine, whether or not
Indebtedness or Collateral is then due. for these purposes, Lender may, on behalf of and
in the name of Grantor, receive, open and dispose of mail addressed to Grantor; change
9
10
any address to which mail and payments are to be sent; and endorse notes, checks, drafts,
money orders, documents of title, instruments and items pertaining to payment, shipment,
or storage of any Collateral. To facilitate collection, Lender may notify account debtors
and obligors on any Collateral to make payments directly to Lender.
Obtain Deficiency. If lender chooses to sell any or all of the Collateral, lender may
obtain a judgment against Grantor for any deficiency remaining on the Indebtedness due
to Lender after application of all amounts received from the exercise of the rights
provided in this Agreement. Grantor shall be liable for a deficiency even if the
transaction described in this subsection is a sale of accounts or chattel paper.
Other Rights and Remedies. Lender shall have all the rights and remedies of a secured
creditor under the provisions of the Uniform Commercial Code, as may be amended from
time to time. In addition, Lender shall have and may exercise any and all other rights and
remedies it may have available at law, in equity,or otherwise.
Election of Remedies. Except as may be prohibited by applicable law, all of Lender's
rights and remedies, whether evidenced by this Agreement,the Related Documents, or by
any other writing, shall be cumulative and may be exercised singularly or concurrently.
Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy,
and an election to make expenditures or to take action to perform an obligation of
Grantor under this Agreement, after Grantor's failure to perform, shall not affect
Lender's right to declare a default and exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this
Agreement:
Amendments. This Agreement, together with any Related Documents, constitutes the
entire understanding and agreement of the parties as to the matters set forth in this
Agreement. No alteration of or amendment to this Agreement shall be effective unless
given in writing and signed by the party or parties sought to be charged or bound by the
alteration or amendment.
Attorneys' Fees: Expenses. Grantor agrees to pay upon demand all of Lender's costs
and expenses, including Lender's attorneys' fees and Lender's legal expenses, incurred
in connection with the enforcement of this Agreement. Lender may hire or pay someone
else to help enforce this Agreement, and Grantor shall pay the costs and expenses of
such enforcement. Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses
for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection services. Grantor also
shall pay all court costs and such additional fees as may be directed by the court.
Caption Headings. Caption headings in this Agreement are for convenience purposes
only and are not to be used to interpret or define the provisions of this Agreement.
10
11
Governing Law. This Agreement shall be governed, construed and interpreted by,
through and under the Laws of the State of Illinois. This Agreement has been
accepted by Lender in the State of Illinois.
Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit
and to resolve all matters related hereto to the jurisdiction of the courts of FULTON
County, State of Illinois.
No Waiver by Lender. Lender shall not be deemed to have waived any rights under
this Agreement unless such waiver is given in writing and signed by Lender. No delay
or omission on the part of Lender in exercising any right shall operate as a waiver of
such right or any other right. A waiver by Lender of a provision of this Agreement shall
not prejudice or constitute a waiver of Lender's right otherwise to demand strict
compliance with that provision or any other provision of this Agreement No prior
waiver by Lender, nor any course of dealing between Lender and Grantor, shall
constitute a waiver of any of Lender's rights or of any of Grantor's obligations as to any
future transactions. Whenever the consent of Lender is required under this Agreement,
the granting of such consent by Lender in any instance shall not constitute continuing
consent to subsequent instances where such consent is required and in all cases such
consent may be granted or withheld in the sole discretion of Lender.
Notices. Any notice required to be given under this Agreement shall be given in
writing, and shall be effective when actually delivered, when actually received by
telefacsimile (unless otherwise required by law), when deposited with a nationally
recognized overnight courier or, if mailed, when deposited in the United States mail, as
first class, certified or registered mail postage prepaid, directed to the addresses shown
near the beginning of this Agreement. Any party may change its address under this
Agreement by giving formal written notice to the other parties, specifying that the
purpose of the notice is to change the party's address. For notice purposes, Grantor
agrees to keep Lender informed at all times of Grantor's current address. Unless
otherwise provided or required by law, if there is more than one Grantor, any notice
given by Lender to any Grantor is deemed to he notice given to all Grantors.
Power of Attorney. Grantor hereby appoints Lender as Grantor's irrevocable attorney-
in-fact for the purpose of executing any documents necessary to perfect, amend, or to
continue the security interest granted in this Agreement or to demand termination of
filings of other secured parties. Lender may at any time, and without further
authorization from Grantor, file a carbon, photographic or other reproduction of any
financing statement or of this Agreement for use as a financing statement. Grantor will
reimburse Lender for all expenses for the perfection and the continuation of the
perfection of Lender's security interest in the Collateral.
Severability. If a court of competent jurisdiction finds any provision of this Agreement
to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not
make the offending provision illegal, invalid, or unenforceable as to any other
11
12
circumstance. If feasible, the offending provision shall be considered modified so that it
becomes legal, valid and enforceable. If the offending provision cannot be so modified,
it shall be considered deleted from this Agreement. Unless otherwise required by law,
the illegality, invalidity, or unenforceability of any provision of this Agreement shall not
affect the legality,validity or enforceability of any other provision of this Agreement.
Successors and Assigns. Subject to any limitations stated in this Agreement on transfer
of Grantor's interest, this Agreement shall be binding upon and inure to the benefit of
the parties, their successors and assigns. If ownership of the Collateral becomes vested
in a person other than Grantor, Lender, without notice to Grantor, may deal with
Grantor's successors with reference to this Agreement and the Indebtedness by way of
forbearance or extension without releasing Grantor from the obligations of this
Agreement or liability under the Indebtedness.
Survival of Representations and Warranties. All representations, warranties, and
agreements made by Grantor in this Agreement shall survive the execution and delivery
of this Agreement, shall be continuing in nature, and shall remain in full force and effect
until such time as Grantor's Indebtedness shall be paid in full.
Time is of the Essence. Time is of the essence in the performance of this Agreement.
DEFINITIONS. The following capitalized words and terms shall have the following meanings
when used in this Agreement. Unless specifically stated to the contrary, all referenced to dollar
amounts shall mean amounts in lawful money of the United States of America. Words and terms
used in the singular shall include the plural, and the plural shall include the singular, as the
context may require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code:
Agreement. The word "Agreement"means this Commercial Security Agreement, as this
Commercial Security Agreement may be modified from time to time, together with all
exhibits and schedules attached to this Commercial Security Agreement from time to
time.
Borrower. The word `Borrower" means KENCOR ETHNIC FOODS, INC. and
includes all co-signers and co-makers signing the Note and all their successors and
assigns.
Collateral. The word "Collateral" means all of Grantor's right, title, and interest in and
to all the Collateral as described in the Collateral Description section of this Agreement.
Default. The word"Default" means the Default set forth in this Agreement in the section
titled"Default".
Environmental Laws. The words "Environmental Laws" means any and all state,
federal and local statutes, regulations and ordinances relating to the protection of human
health or the environment, including without limitation the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Seciton9601, et seq. ("CERCLS"), the Superf nid Amendments, and
12
13
Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA'), the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws,
rules,or regulations adopted pursuant thereto.
Event of Default. The words "Event of Default" mean any of the events of default set
forth in this Agreement in the default section of this Agreement.
Grantor. The word"Grantor"means KENCOR ETHNIC FOODS, INC.
Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety,
or accommodation party to Lender, including without limitation a guaranty of all or part
of the Note.
Hazardous Substances. The words "Hazardous Substances" mean materials that,
because of their quantity, concentration or physical, chemical or infectious
characteristics, may cause or pose a present or potential hazard to human health or the
environment when improperly used, treated, stored, disposed of, generated,
manufactured, transported or otherwise handled. The words "Hazardous Substances" are
used in their very broadest sense and include without limitation any and all hazardous or
toxic substances, materials or waste as defined by or listed under the Environmental
Laws. The term "Hazardous Substances" also includes, without limitation, petroleum
and petroleum by-products or any fraction thereof and asbestos.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced by the Note
or Related Documents, including all principal and interest together with all other
indebtedness and costs and expenses for which Grantor is responsible under this
Agreement or under any of the Related Documents.
Lender. The word "Lender" means CITY OF CANTON, A MUNICIPAL
CORPORATION, its successors and assigns.
Note. The word "Note" means the Note dated December 18, 20189 and executed by
KENCOR ETHNIC FOODS, INC. in the principal amount of $ 40,000.00, together
with all renewals of, extensions of, modifications of, refinancing of, consolidations of,
and substitutions for the note or credit agreement.
Property. The word "Property" means all of the Grantor's right, title and interest in and
to all the Property as described in the"Collateral Description" section of this Agreement.
Related Documents. The words "Related Documents"mean all promissory notes, credit
agreements, loan agreements, environmental agreement, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection
with the Indebtedness.
Rents. The word "Rents" means all present and future rents, revenues, income, issues,
royalties, profits, and other benefits derived from the Property.
13
14
GRANTOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS
COMMERCIAL SECURITY AGREEMENT AND AGREES TO ITS TERMS. THIS
AGREEMENT IS DATED DECEMBER 18,2018.
GRANTOR:
KENCOR ETHNIC FOODS, INC.
By:
MOR A I. ENOWMBITANG, Pres, I
y:
M. ENOWMBITANG,Vice President
14
REVOLVING LOAN GUARANTY
Guarantor: MORGAN M. ENOWMBITANG Lender: CITY OF CANTON
906 E. Chicory Lane 2 North Main Street
Lake Villa,IL 60046 Canton,IL 61520
CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE: For good and
valuable consideration, Guarantor absolutely and unconditionally guarantees full and punctual
payment and satisfaction of the Indebtedness of Guarantor to Lender, and the performance and
discharge of all Guarantor's obligations under the Promissory Note and the Related Documents.
This is a guaranty of payment and performance and not of collection, so Lender can enforce this
Guaranty against Guarantor even when Lender has not exhausted Lender's remedies against
anyone else obligated to pay the indebtedness or against any collateral securing the indebtedness,
this Guaranty or any other guaranty of the indebtedness. Guarantor will make any payments to
Lender or its order, on demand, in legal tender of the United States of America, in same-day
funds, without set-off or deduction or counterclaim, and will otherwise perform Guarantor's
obligations under the Note and Related Documents. Under this Guaranty, Guarantor's liability is
unlimited and Guarantor's obligations are continuing.
INDEBTEDNESS. The word "indebtedness"as used in this Guaranty means all of the principal
amount outstanding from time to time and at any one or more times, accrued unpaid interest
thereon and all collection costs and legal expenses related thereto permitted by law, attorneys'
fee, arising from any and all debts, liabilities and obligations of every nature or form, now
existing or hereafter arising or acquired, that Guarantor individually or collectively or
interchangeably with other, owes or will owe Lender. "Indebtedness" includes, without
limitation, loans, advances, debts, overdraft indebtedness, credit card indebtedness, lease
obligations, liabilities and obligations under any interest rate protection agreements or foreign
currency exchange agreements or commodity price protection agreements, other obligations, and
liabilities of Guarantor, and any present or future judgments against Guarantor, future advances,
loans or transactions that renew, extend, modify, refinance, consolidate or substitute these debts,
liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due
by their terms or acceleration; absolute or contingent; liquidated or unliquidated; determined or
undetermined; direct or indirect; primary or secondary in nature or arising from a guaranty or
surety; secured or unsecured; joint or several orjoint and several; evidenced by a negotiable or
non-negotiable instrument or writing; originated by Lender or another or others; barred or
unenforceable against Guarantor for any reason whatsoever; for any transactions that may be
voidable for any reason (such as infancy, insanity, ultra vires or otherwise); and originated then
reduced or extinguished and then afterwards increased or reinstated.
If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from
the Guarantor, Lender's rights under all guaranties shall be cumulative. This Guaranty shall not
(unless specifically provided below to the contrary) affect or invalidate any such other
guaranties. Guarantor's liability will be Guarantor's aggregate liability under the terms of this
Guaranty and any such other unterminated guaranties.
CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH
GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT,
PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF GUARANTOR TO
LENDER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN
AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE
INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S
OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING
AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE
OUTSTANDING INDEBTEDNESS MAY BE A ZERO BALANCE FROM TIME TO TIME.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or to Guarantor,
and will continue in full force until all the indebtedness incurred or contracted before receipt by
Lender of any notice of revocation shall have been fully and finally paid and satisfied and all
Guarantor's other obligations under this Guaranty shall have been performed in full. If
Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's
written notice of revocation must be mailed to Lender, by certified mail, at Lender's address
listed above or such other place as Lender may designate in writing. Written revocation of this
Guaranty will apply only to new indebtedness created after actual receipt by Lender of
Guarantor's written revocation. For this purpose and without limitation, the term "new
indebtedness" does not include the indebtedness which at the time of notice of revocation is
contingent, unliquidated, undetermined or not due and which later becomes absolute, liquidated,
determined or due. For this purpose and without limitation, "new indebtedness" does not include
all or part of the indebtedness that is: incurred by Guarantor prior to revocation; incurred under a
commitment that became binding before revocation; any renewals, extensions, substitutions, and
modifications of the indebtedness. This Guaranty shall bind Guarantor's estate as to the
indebtedness created both before and after Guarantor's death or incapacity, regardless of lender's
actual notice of Guarantor's death. Subject to the foregoing, Guarantor's executor or
administrator or other legal representative may terminate this Guaranty in the same manner in
which Guarantor might have terminated it and with the same effect. Release of any other
guarantor or termination of any other guaranty of the indebtedness shall not affect the liability of
Guarantor under this Guaranty. A revocation Lender receives from any one or more Guarantors
shall not affect the liability of any remaining Guarantors under this Guaranty. It is anticipated
2
that fluctuations may occur in the aggregate amount of the indebtedness covered by this
guaranty, and the Guarantor specifically acknowledges and agrees that reductions in the
amount of the indebtedness, even to zero dollars ($0.00), shall not constitute a termination
of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs,
successors and assigns so long as any of the indebtedness remains unpaid and even though
the indebtedness may from time to time be zero dollars ($0.00).
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either
before or after any revocation hereof, without notice or demand and without lessening
Guarantor's liability under this Guaranty, from time to time: (A) prior to revocation as set
forth above, to make one or more additional secured or unsecured loans to Guarantor, to lease
equipment or other goods to Guarantor, or otherwise to extend additional credit to Guarantor;
(B) to alter, compromise, renew, extend, accelerate, or otherwise change one or more times the
time for payment or other terms of the indebtedness or any part of the indebtedness, including
increases and decreases of the rate of interest on the indebtedness; extensions may be repeated
and may be for longer than the original loan tern; (C) to take and hold security for the payment
of this Guaranty or the indebtedness, and exchange, enforce, waive, subordinate, fail or decide
not to perfect, and release any such security, with or without the substitution of new collateral;
(D) to release, substitute, agree not to sue, or deal with any one or more of Guarantor's sureties,
endorsers, or other guarantors on any terns or in any manner lender may choose; (E) to
determine how, when and what application of payments and credits shall be made on the
indebtedness; (F) to apply such security and direct the order or manner of sale thereof,
including without limitation, any nonjudicial sale permitted by the terns of the controlling
security agreement or deed of trust, as Lender in its discretion my determine; (G) to sell,
transfer, assign or grant participations in all or any part of the indebtedness; and (H)to assign or
transfer this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants to Lender that (A) no representations or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this Guaranty; (B) this
Guaranty is executed at Guarantor's request and not at the request of Lender; (C) Guarantor has
full power, right and authority to enter into this Guaranty; (D) the provisions of the Guaranty do
not conflict with or result in a default under any agreement or other instrument binding upon
Guarantor and do not result in a violation of any law, regulation, court decree or order applicable
to Guarantor; (E) Guarantor has not and will not, without the prior written consent of lender,
sell, lease, assign, encumber, hypothecate,transfer, or otherwise dispose of all or substantially all
of Guarantor's assets, or any interest therein; (F) upon Lender's request, Guarantor will provide
to Lender financial and credit information in form acceptable to Lender, and all such financial
information which currently has been and all future financial information which will be provided
to Lender is and will be true and correct in all material respects and fairly present Guarantor's
3
financial condition as of the dates the financial information is provided; (G) no material adverse
change has occurred in Guarantor's financial condition since the date of the most recent financial
statements provided to Lender and no event has occurred which may materially adversely affect
Guarantor's financial condition; (H) no litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against Guarantor is pending or
threatened; (1) Lender has made no representation to Guarantor as to the creditworthiness of
Guarantor; and (J) Guarantor has established adequate means of obtaining from Guarantor on a
continuing basis information regarding Guarantor's financial condition. Guarantor agrees to
keep adequately informed from such means of any facts, events,or circumstances which might in
any way affect Guarantor's risks under this Guaranty, and Guarantor further agrees that absent a
request for information, Lender shall have no obligation to disclose to Guarantor any information
or documents acquired by Lender in the course of its relationship with Guarantor.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law. Guarantor waives any
right to require Lender (A) to continue lending money or to extend other credit to Guarantor;
(B) to make any presentment, protest, demand, or notice of any kind, including notice of any
nonpayment of the indebtedness or of any nonpayment related to any collateral, or notice of any
action or nonaction on the part of Guarantor, Lender, any surety, endorser, or other guarantor in
connection with the indebtedness or in connection with the creation of new or additional loans or
obligations; (C) to resort for payment or to proceed directly or at once against any person,
including Guarantor or any other guarantor; (D) to proceed directly against or exhaust any
collateral held by Lender from Guarantor, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal property security
held by Lender from Guarantor or to comply with any other applicable provisions of the Uniform
Commercial Code; (F) to pursue any other remedy within Lender's power; or (G) to commit
any act or omission of any kind,or at any time, with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses based on suretyship or impairment of
collateral including, but not limited to, any rights or defenses arising by reason of (A) any
"one action" or "anti-deficiency" law or any other law which may prevent lender from bringing
any action, including a claim for deficiency, against Guarantor, before or after lender's
commencement or completion of any foreclosure action, either judicially or by exercise of a
power of sale; (B) any election of remedies by lender which destroys or otherwise adversely
affects Guarantor's subrogation rights or Guarantor's rights to proceed against Guarantor for
reimbursement, including without limitation, any loss of rights. guarantor may suffer by reason
of any law limiting, qualifying, or discharging the indebtedness; (C) any disability or other
defense of Guarantor, of any other guarantor, or of any other person, or by reason of the
cessation of Guarantor's liability from any cause whatsoever, other than payment in full in legal
tender, of the indebtedness; (D) any right to claim discharge of the indebtedness on the basis of
unjustified impairment of any collateral for the indebtedness; (E) any statute of limitations, if at
4
any time any action or suit brought by Lender against Guarantor is commenced, there is
outstanding indebtedness which is not bared by any applicable statute of limitations; or (F) any
defenses given to guarantors at law or in equity other than actual payment and performance of
the indebtedness. If payment is made by Guarantor, whether voluntarily or otherwise, or by any
third party, on the indebtedness and thereafter Lender is forced to remit the amount of the
payment to Guarantor's trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, the indebtedness shall be considered unpaid for
the purpose of the enforcement of this guaranty.
Guarantor further waives and agrees not to assert or claim at any time any deductions to the
amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand,
recoupment or similar right, whether such claim, demand or right may be asserted by the
Guarantor, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor
warrants and agrees that each of the waivers set forth above is made with Guarantor's full
knowledge of its significance and consequences and that, under the circumstances, the waivers
are reasonable and not contrary to public policy or law. If any such waiver is determined to be
contrary to any applicable law or public policy, such waiver shall be effective only to the extent
permitted by law or public policy.
SUBORDINATION OF GUARANTOR'S DEBTS TO GUARANTOR. Guarantor agrees
that the indebtedness, whether now existing or hereafter created, shall be superior to any claim
that Guarantor may now have or hereafter acquire against Guarantor, whether or not Guarantor
becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have
against Guarantor, upon any account whatsoever, to any claim that Lender may now or hereafter
have against Guarantor. In the event of insolvency and consequent liquidation of the assets of
Guarantor, through bankruptcy, by an assignment for the benefit of creditors, by voluntary
liquidation, or otherwise, the assets of Guarantor applicable to the payment of the claims of both
Lender and Guarantor shall be paid to Lender and shall be first applied by Lender to the
indebtedness. Guarantor does hereby assign to lender all claims which it may have or acquire
against Guarantor or against any assignee or trustee in bankruptcy of Guarantor; provided
however, that such assignment shall be effective only for the purpose of assuring to lender full
payment in legal tender of the indebtedness. If Lender so requests, any notes or credit
agreements now or hereafter evidencing any debts or obligations of Guarantor to Guarantor shall
be marked with a legend that the same are subject to this Guaranty and shall be delivered to
Lender. Guarantor agrees, and lender is hereby authorized, in the name of Guarantor, from time
to time to file financing statements and continuation statements and to execute documents and to
take such other actions as Lender deems necessary or appropriate to perfect, preserve and
enforce its rights under this Guaranty.
5
CONFESSION OF JUDGMENT. Guarantor hereby irrevocably authorizes and empowers any
attomey-at-law to appear in any court of record and to confess judgment against Guarantor for
the unpaid amount of this guaranty as evidenced by an affidavit signed by an officer of Lender
setting forth the amount then due, attorneys' fees plus costs of suit, and to release all errors, and
waive all rights of appeal. If a copy of this Guaranty, verified by an affidavit, shall have been
filed in the proceeding, it will not be necessary to file the original as a warrant of attorney.
Guarantor waives the right to any stay of execution and the benefit of all exemption laws now or
hereafter in effect. No single exercise of the foregoing warrant and power to confess judgment
will be deemed to exhaust the power, whether or not any such exercise shall be held by any court
to be invalid, voidable, or void; but the power will continue undiminished and may be exercised
from time to time as lender may elect until all amounts owing on this Guaranty have been paid in
full. Guarantor hereby waives and releases any and all claims or causes of action which
Guarantor might have against any attorney acting under the terms of authority which Guarantor
has granted herein arising out of or connected with the confession of judgment hereunder.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this
Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this Guaranty. No
alteration of or amendment to this Guaranty shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration or amendment.
Attorney's Fee: Expenses. Guarantor agrees to pay upon demand all of Lender's costs and
expenses, including Lender's attorney's fees and Lender's legal expenses, incurred in connection
with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this
Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. costs and
expenses include Lender's attorneys' fees and legal expenses whether or not there is a law suit,
including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), appeals, and any anticipated post judgment
collection services. Guarantor also shall pay all court costs and such additional fees as may be
directed by the court.
Caption Headings. Caption headings in this Guaranty are for convenience purposes only and
are not to be used to interpret or define the provisions of this Guaranty.
Governing Law. This Guaranty will be governed by federal law applicable to Lender and,
to the extent not preempted by federal law, the laws of the State of Illinois without regard
to its conflicts of law provisions.
Choice of Venue. If there is a lawsuit, Guarantor agrees upon lender's request to submit to the
jurisdiction of the courts of FULTON County, State of Illinois and resolve all matters related
hereto in the courts of FULTON County.
6
Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of
this Guaranty; Guarantor has had the opportunity to be advised by Guarantor's attorney with
respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parole evidence
is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds
Lender harmless from all losses, claims, damages, and costs (including Lender's attorneys' fees)
suffered or incurred by Lender as a result of any breach by Guarantor of the warranties,
representations and agreements of this paragraph.
Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words
used in this Guaranty in the singular shall be deemed to have been used in the plural where the
context and construction so require; and where there is more than one Borrower named in the
Guaranty or when this Guaranty is executed by more than one Guarantor, the words `Borrower"
and "Guarantor" respectively shall mean all and any one or more of them. The words
"Guarantor," "Borrower," and "Lender" include the heirs, successors, assigns, and transferees of
each of them. If a court finds that any provision of this Guaranty is not valid or should not be
enforced, that fact by itself will not mean that the rest of this Guaranty will not be valid or
enforced. Therefore, a court will enforce the rest of the provisions of this Guaranty even if a
provision of this Guaranty may be found to be invalid or unenforceable. If any one or more of
Guarantor or Guarantor are corporations, partnerships, limited liability companies or similar
entities, it is not necessary for Lender to inquire into the powers of Guarantor or Guarantor or of
the officers, directors, partners, managers, or other agents acting or purporting to act on their
behalf, and any indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed under this Guaranty.
Notices. Any notice required to be given under this Guaranty shall be given in writing, and,
except for revocation notices by Guarantor, shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law), when deposited with a
nationally recognized overnight courier, or, if mailed, when deposited in the United States mail,
as first class, certified or registered mail postage prepaid, directed to the addresses shown near
the beginning of this Guaranty. All revocation notices by Guarantor shall be in writing and shall
be effective upon delivery to lender as provided in the section of this Guaranty entitled
"DURATION OF GUARANTY." Any party may change its address for notices under this
Guaranty by giving formal written notice to the other parties, specifying that the purpose of the
notice is to change the party's address. For notice purposes, Guarantor agrees to keep Lender
informed at all times of Guarantor's current address. Unless otherwise provided or required by
law, if there is more than one Guarantor, any notice given by Lender to any Guarantor is deemed
to be notice given to all Guarantors.
No Waiver by Lender. Lender shall not be deemed to have waived any rights under this
Guaranty unless such waiver is given in writing and signed by Lender. No delay or omission on
the part of lender in exercising any right shall operate as a waiver of such right or any other right.
A waiver by Lender of a provision of this Guaranty shall not prejudice or constitute a waiver of
Lender's right otherwise to demand strict compliance with that provision or any other provision
7
of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and
Guarantor, shall constitute a waiver of any of Lender's rights or of any of Guarantor's
obligations as to any future transactions. Whenever the consent of Lender is required under this
Guaranty, the granting of such consent by Lender in any instance shall not constitute continuing
consent to subsequent instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
Successors and Assigns. Subject to any limitations stated in this Guaranty on transfer of
Guarantor's interest, this Guaranty shall be binding upon and inure to the benefit of the parties,
their successors and assigns.
DEFINITIONS. The following capitalized words and terms shall have the following meanings
when used in this Guaranty. Unless specifically stated to the contrary, all references to dollar
amounts shall mean amounts in lawful money of the United States of America. Words and terms
used in the singular shall include the plural, and the plural shall include the singular, as the
context may require. Words and terms not otherwise defined in the Guaranty shall have the
meanings attributed to such terms in the Uniform Commercial Code:
Borrower. The word `Borrower" means KENCOR ETHNIC FOODS, INC. and includes all
co-signers and co-makers signing the Promissory Note for $40,0000.00 and all their successors
and assigns.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without
limitation MORGAN M. ENOWMBITANG, and in each case, any signer's successors and
assigns.
Guaranty. The word"Guaranty" means this guaranty from Guarantor to Lender.
Indebtedness. The word "Indebtedness" means Guarantor's indebtedness to Lender as more
particularly described in this Guaranty.
Lender. The word"Lender'means CITY OF CANTON, its successors and assigns.
Note. The word "Note" means and includes without limitation all of Borrower's promissory
notes and/or credit agreements evidencing Borrower's loan obligations in favor of Lender,
together with all renewals of, extensions of, modifications of, refinancing of, consolidations of
and substitutions for promissory notes or credit agreements.
Related Documents. The words "Related Documents" mean all promissory notes, credit
agreements, loan agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the
indebtedness.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE
PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION,
8
EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE
UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO
LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN
THE MANNER SET FORTH IN THE SECTION TITLED "DURATION OF
GUARANTY". NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO
MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED DECEMBER
18,2018.
GUARANTOR:
X L-' ORGAN M. ENOWMBITANG
INDIVIDUAL ACKNOWLEDGMENT
STATE OF ILLINOIS )
) SS
COUNTY OF FULTON )
On this day before me, the undersigned Notary Public, personally appeared MORGAN M.
ENOWMBITANG, to me known to be the individual described in and who executed the Commercial
Guaranty, and acknowledged that he or she signed the Guaranty as his or her free and voluntary act and
deed, for the uses and purposes th rein mentioned.
Given u er my and nd off ial seal this 18th day of December 2018.
By Residing at .`-
Notary Public in and for the State of Illinois.
My commission expires
OFFICIAL SEAL
NICHOLAS N TINSMAN
NOTARY PUBLIC '",III ILLINOIS
MV COMMISSION EXPIRES12116119
n^^^^n^nti+nn�...+. M^.nti..,,
9
REVOLVING LOAN GUARANTY
Guarantor: JEAN M. ENOWMBITANG Lender: CITY OF CANTON
906 E. Chicory Lane 2 North Main Street
Lake Villa, IL 60046 Canton, IL 61520
CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE: For good and
valuable consideration, Guarantor absolutely and unconditionally guarantees full and punctual
payment and satisfaction of the Indebtedness of Guarantor to Lender, and the performance and
discharge of all Guarantor's obligations under the Promissory Note and the Related Documents.
This is a guaranty of payment and performance and not of collection, so Lender can enforce this
Guaranty against Guarantor even when Lender has not exhausted Lender's remedies against
anyone else obligated to pay the indebtedness or against any collateral securing the indebtedness,
this Guaranty or any other guaranty of the indebtedness. Guarantor will make any payments to
Lender or its order, on demand, in legal tender of the United States of America, in same-day
funds, without set-off or deduction or counterclaim, and will otherwise perform Guarantor's
obligations under the Note and Related Documents. Under this Guaranty, Guarantor's liability is
unlimited and Guarantor's obligations are continuing.
INDEBTEDNESS. The word "indebtedness"as used in this Guaranty means all of the principal
amount outstanding from time to time and at any one or more times, accrued unpaid interest
thereon and all collection costs and legal expenses related thereto permitted by law, attorneys'
fee, arising from any and all debts, liabilities and obligations of every nature or form, now
existing or hereafter arising or acquired, that Guarantor individually or collectively or
interchangeably with other, owes or will owe Lender. "Indebtedness" includes, without
limitation, loans, advances, debts, overdraft indebtedness, credit card indebtedness, lease
obligations, liabilities and obligations under any interest rate protection agreements or foreign
currency exchange agreements or commodity price protection agreements, other obligations, and
liabilities of Guarantor, and any present or future judgments against Guarantor, future advances,
loans or transactions that renew, extend, modify, refinance, consolidate or substitute these debts,
liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due
by their terms or acceleration; absolute or contingent; liquidated or unliquidated; determined or
undetermined; direct or indirect; primary or secondary in nature or arising from a guaranty or
surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or
non-negotiable instrument or writing; originated by Lender or another or others; barred or
unenforceable against Guarantor for any reason whatsoever; for any transactions that may be
voidable for any reason (such as infancy, insanity, ultra vires or otherwise); and originated then
reduced or extinguished and then afterwards increased or reinstated.
If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from
the Guarantor, Lender's rights under all guaranties shall be cumulative. This Guaranty shall not
(unless specifically provided below to the contrary) affect or invalidate any such other
guaranties. Guarantor's liability will be Guarantor's aggregate liability under the terms of this
Guaranty and any such other unterminated guaranties.
CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH
GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT,
PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF GUARANTOR TO
LENDER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN
AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE
INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S
OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING
AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE
OUTSTANDING INDEBTEDNESS MAY BE A ZERO BALANCE FROM TIME TO TIME.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or to Guarantor,
and will continue in full force until all the indebtedness incurred or contracted before receipt by
Lender of any notice of revocation shall have been fully and finally paid and satisfied and all
Guarantor's other obligations under this Guaranty shall have been performed in full. If
Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's
written notice of revocation must be mailed to Lender, by certified mail, at Lender's address
listed above or such other place as Lender may designate in writing. Written revocation of this
Guaranty will apply only to new indebtedness created after actual receipt by Lender of
Guarantor's written revocation. For this purpose and without limitation, the term "new
indebtedness" does not include the indebtedness which at the time of notice of revocation is
contingent, unliquidated, undetermined or not due and which later becomes absolute, liquidated,
determined or due. For this purpose and without limitation, "new indebtedness"does not include
all or part of the indebtedness that is: incurred by Guarantor prior to revocation; incurred under a
commitment that became binding before revocation; any renewals, extensions, substitutions, and
modifications of the indebtedness. This Guaranty shall bind Guarantor's estate as to the
indebtedness created both before and after Guarantor's death or incapacity,regardless of lender's
actual notice of Guarantor's death. Subject to the foregoing, Guarantor's executor or
administrator or other legal representative may terminate this Guaranty in the same manner in
which Guarantor might have terminated it and with the same effect. Release of any other
guarantor or termination of any other guaranty of the indebtedness shall not affect the liability of
Guarantor under this Guaranty. A revocation Lender receives from any one or more Guarantors
shall not affect the liability of any remaining Guarantors under this Guaranty. It is anticipated
2
that fluctuations may occur in the aggregate amount of the indebtedness covered by this
guaranty, and the Guarantor specifically acknowledges and agrees that reductions in the
amount of the indebtedness, even to zero dollars ($0.00), shall not constitute a termination
of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs,
successors and assigns so long as any of the indebtedness remains unpaid and even though
the indebtedness may from time to time be zero dollars($0.00).
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either
before or after any revocation hereof, without notice or demand and without lessening
Guarantor's liability under this Guaranty, from time to time: (A) prior to revocation as set
forth above, to make one or more additional secured or unsecured loans to Guarantor, to lease
equipment or other goods to Guarantor, or otherwise to extend additional credit to Guarantor;
(B) to alter, compromise, renew, extend, accelerate, or otherwise change one or more times the
time for payment or other terms of the indebtedness or any part of the indebtedness, including
increases and decreases of the rate of interest on the indebtedness; extensions may be repeated
and may be for longer than the original loan term; (C) to take and hold security for the payment
of this Guaranty or the indebtedness, and exchange, enforce, waive, subordinate, fail or decide
not to perfect, and release any such security, with or without the substitution of new collateral;
(D) to release, substitute, agree not to sue, or deal with any one or more of Guarantor's sureties,
endorsers, or other guarantors on any terms or in any manner lender may choose; (E) to
determine how, when and what application of payments and credits shall be made on the
indebtedness; (F) to apply such security and direct the order or manner of sale thereof,
including without limitation, any nonjudicial sale permitted by the terns of the controlling
security agreement or deed of trust, as Lender in its discretion my determine; (G) to sell,
transfer, assign or grant participations in all or any part of the indebtedness; and (H) to assign or
transfer this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants to Lender that (A) no representations or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this Guaranty; (B) this
Guaranty is executed at Guarantor's request and not at the request of Lender; (C) Guarantor has
full power, right and authority to enter into this Guaranty; (D) the provisions of the Guaranty do
not conflict with or result in a default under any agreement or other instrument binding upon
Guarantor and do not result in a violation of any law, regulation, court decree or order applicable
to Guarantor, (E) Guarantor has not and will not, without the prior written consent of lender,
sell, lease, assign, encumber, hypothecate,transfer, or otherwise dispose of all or substantially all
of Guarantor's assets, or any interest therein; (F) upon Lender's request, Guarantor will provide
to Lender financial and credit information in form acceptable to Lender, and all such financial
information which currently has been and all future financial information which will be provided
to Lender is and will be true and correct in all material respects and fairly present Guarantor's
3
financial condition as of the dates the financial information is provided; (G) no material adverse
change has occurred in Guarantor's financial condition since the date of the most recent financial
statements provided to Lender and no event has occurred which may materially adversely affect
Guarantor's financial condition; (H) no litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against Guarantor is pending or
threatened; (1) Lender has made no representation to Guarantor as to the creditworthiness of
Guarantor; and (J) Guarantor has established adequate means of obtaining from Guarantor on a
continuing basis information regarding Guarantor's financial condition. Guarantor agrees to
keep adequately informed from such means of any facts,events, or circumstances which might in
any way affect Guarantor's risks under this Guaranty, and Guarantor further agrees that absent a
request for information, Lender shall have no obligation to disclose to Guarantor any information
or documents acquired by Lender in the course of its relationship with Guarantor.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law. Guarantor waives any
right to require Lender (A) to continue lending money or to extend other credit to Guarantor;
(B) to make any presentment, protest, demand, or notice of any kind, including notice of any
nonpayment of the indebtedness or of any nonpayment related to any collateral, or notice of any
action or nonaction on the part of Guarantor, Lender, any surety, endorser, or other guarantor in
connection with the indebtedness or in connection with the creation of new or additional loans or
obligations; (C) to resort for payment or to proceed directly or at once against any person,
including Guarantor or any other guarantor; (D) to proceed directly against or exhaust any
collateral held by Lender from Guarantor, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal property security
held by Lender from Guarantor or to comply with any other applicable provisions of the Uniform
Commercial Code; (F) to pursue any other remedy within Lender's power; or (G) to commit
any act or omission of any kind, or at any time,with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses based on suretyship or impairment of
collateral including, but not limited to, any rights or defenses arising by reason of (A) any
"one action" or "anti-deficiency" law or any other law which may prevent lender from bringing
any action, including a claim for deficiency, against Guarantor, before or after lender's
commencement or completion of any foreclosure action, either judicially or by exercise of a
power of sale; (B) any election of remedies by lender which destroys or otherwise adversely
affects Guarantor's subrogation rights or Guarantor's rights to proceed against Guarantor for
reimbursement, including without limitation, any loss of rights. guarantor may suffer by reason
of any law limiting, qualifying, or discharging the indebtedness; (C) any disability or other
defense of Guarantor, of any other guarantor, or of any other person, or by reason of the
cessation of Guarantor's liability from any cause whatsoever, other than payment in full in legal
tender, of the indebtedness; (D) any right to claim discharge of the indebtedness on the basis of
unjustified impairment of any collateral for the indebtedness; (E) any statute of limitations, if at
4
any time any action or suit brought by Lender against Guarantor is commenced, there is
outstanding indebtedness which is not bared by any applicable statute of limitations; or (F) any
defenses given to guarantors at law or in equity other than actual payment and performance of
the indebtedness. If payment is made by Guarantor, whether voluntarily or otherwise, or by any
third party, on the indebtedness and thereafter Lender is forced to remit the amount of the
payment to Guarantor's trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, the indebtedness shall be considered unpaid for
the purpose of the enforcement of this guaranty.
Guarantor further waives and agrees not to assert or claim at any time any deductions to the
amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand,
recoupment or similar right, whether such claim, demand or right may be asserted by the
Guarantor,the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor
warrants and agrees that each of the waivers set forth above is made with Guarantor's full
knowledge of its significance and consequences and that, under the circumstances, the waivers
are reasonable and not contrary to public policy or law. If any such waiver is determined to be
contrary to any applicable law or public policy, such waiver shall be effective only to the extent
permitted by law or public policy.
SUBORDINATION OF GUARANTOR'S DEBTS TO GUARANTOR. Guarantor agrees
that the indebtedness, whether now existing or hereafter created, shall be superior to any claim
that Guarantor may now have or hereafter acquire against Guarantor, whether or not Guarantor
becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have
against Guarantor, upon any account whatsoever, to any claim that Lender may now or hereafter
have against Guarantor. In the event of insolvency and consequent liquidation of the assets of
Guarantor, through bankruptcy, by an assignment for the benefit of creditors, by voluntary
liquidation, or otherwise, the assets of Guarantor applicable to the payment of the claims of both
Lender and Guarantor shall be paid to Lender and shall be first applied by Lender to the
indebtedness. Guarantor does hereby assign to lender all claims which it may have or acquire
against Guarantor or against any assignee or trustee in bankruptcy of Guarantor; provided
however, that such assignment shall be effective only for the purpose of assuring to lender full
payment in legal tender of the indebtedness. If Lender so requests, any notes or credit
agreements now or hereafter evidencing any debts or obligations of Guarantor to Guarantor shall
be marked with a legend that the same are subject to this Guaranty and shall be delivered to
Lender. Guarantor agrees, and lender is hereby authorized, in the time of Guarantor, from time
to time to file financing statements and continuation statements and to execute documents and to
take such other actions as Lender deems necessary or appropriate to perfect, preserve and
enforce its rights under this Guaranty.
5
CONFESSION OF JUDGMENT. Guarantor hereby irrevocably authorizes and empowers any
attomey-at-law to appear in any court of record and to confess judgment against Guarantor for
the unpaid amount of this guaranty as evidenced by an affidavit signed by an officer of Lender
setting forth the amount then due, attorneys' fees plus costs of suit, and to release all errors, and
waive all rights of appeal. If a copy of this Guaranty, verified by an affidavit, shall have been
filed in the proceeding, it will not be necessary to file the original as a warrant of attorney.
Guarantor waives the right to any stay of execution and the benefit of all exemption laws now or
hereafter in effect. No single exercise of the foregoing warrant and power to confess judgment
will be deemed to exhaust the power, whether or not any such exercise shall be held by any court
to be invalid, voidable, or void; but the power will continue undiminished and may be exercised
from time to time as lender may elect until all amounts owing on this Guaranty have been paid in
full. Guarantor hereby waives and releases any and all claims or causes of action which
Guarantor might have against any attorney acting under the terms of authority which Guarantor
has granted herein arising out of or connected with the confession ofjudgment hereunder.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this
Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this Guaranty. No
alteration of or amendment to this Guaranty shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration or amendment.
Attorney's Fee: Expenses. Guarantor agrees to pay upon demand all of Lender's costs and
expenses, including Lender's attorney's fees and Lender's legal expenses, incurred in connection
with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this
Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. costs and
expenses include Lender's attorneys' fees and legal expenses whether or not there is a law suit,
including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. Guarantor also shall pay all court costs and such additional fees as may be
directed by the court.
Caption Headings. Caption headings in this Guaranty are for convenience purposes only and
are not to be used to interpret or define the provisions of this Guaranty.
Governing Law. This Guaranty will be governed by federal law applicable to Lender and,
to the extent not preempted by federal law, the laws of the State of Illinois without regard
to its conflicts of law provisions.
Choice of Venue. If there is a lawsuit, Guarantor agrees upon lender's request to submit to the
jurisdiction of the courts of FULTON County, State of Illinois and resolve all matters related
hereto in the courts of FULTON County.
6
Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of
this Guaranty; Guarantor has had the opportunity to be advised by Guarantor's attorney with
respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parole evidence
is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds
Lender harmless from all losses, claims, damages, and costs (including Lender's attorneys' fees)
suffered or incurred by Lender as a result of any breach by Guarantor of the warranties,
representations and agreements of this paragraph.
Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words
used in this Guaranty in the singular shall be deemed to have been used in the plural where the
context and construction so require; and where there is more than one Borrower named in the
Guaranty or when this Guaranty is executed by more than one Guarantor, the words `Borrower"
and "Guarantor" respectively shall mean all and any one or more of them. The words
"Guarantor," `Borrower," and "Lender" include the heirs, successors, assigns, and transferees of
each of them. If a court finds that any provision of this Guaranty is not valid or should not be
enforced, that fact by itself will not mean that the rest of this Guaranty will not be valid or
enforced. Therefore, a court will enforce the rest of the provisions of this Guaranty even if a
provision of this Guaranty may be found to be invalid or unenforceable. If any one or more of
Guarantor or Guarantor are corporations, partnerships, limited liability companies or similar
entities, it is not necessary for Lender to inquire into the powers of Guarantor or Guarantor or of
the officers, directors, partners, managers, or other agents acting or purporting to act on their
behalf, and any indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed under this Guaranty.
Notices. Any notice required to be given under this Guaranty shall be given in writing, and,
except for revocation notices by Guarantor, shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law), when deposited with a
nationally recognized overnight courier, or, if mailed, when deposited in the United States mail,
as first class, certified or registered mail postage prepaid, directed to the addresses shown near
the beginning of this Guaranty. All revocation notices by Guarantor shall be in writing and shall
be effective upon delivery to lender as provided in the section of this Guaranty entitled
"DURATION OF GUARANTY." Any party may change its address for notices under this
Guaranty by giving formal written notice to the other parties, specifying that the purpose of the
notice is to change the party's address. For notice purposes, Guarantor agrees to keep Lender
informed at all times of Guarantor's current address. Unless otherwise provided or required by
law, if there is more than one Guarantor, any notice given by Lender to any Guarantor is deemed
to be notice given to all Guarantors.
No Waiver by Lender. Lender shall not be deemed to have waived any rights under this
Guaranty unless such waiver is given in writing and signed by Lender. No delay or omission on
the part of tender in exercising any right shall operate as a waiver of such right or any other right.
A waiver by Lender of a provision of this Guaranty shall not prejudice or constitute a waiver of
Lender's right otherwise to demand strict compliance with that provision or any other provision
7
of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and
Guarantor, shall constitute a waiver of any of Lender's rights or of any of Guarantor's
obligations as to any future transactions. Whenever the consent of Lender is required under this
Guaranty, the granting of such consent by Lender in any instance shall not constitute continuing
consent to subsequent instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
Successors and Assigns. Subject to any limitations stated in this Guaranty on transfer of
Guarantor's interest, this Guaranty shall be binding upon and inure to the benefit of the parties,
their successors and assigns.
DEFINITIONS. The following capitalized words and terms shall have the following meanings
when used in this Guaranty. Unless specifically stated to the contrary, all references to dollar
amounts shall mean amounts in lawful money of the United States of America. Words and terms
used in the singular shall include the plural, and the plural shall include the singular, as the
context may require. Words and terms not otherwise defined in the Guaranty shall have the
meanings attributed to such terns in the Uniform Commercial Code:
Borrower. The word "Borrower" means KENCOR ETHNIC FOODS, INC. and includes all
co-signers and co-makers signing the Promissory Note for $40,0000.00 and all their successors
and assigns.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without
limitation JEAN M. ENOWMBITANG, and in each case, any signer's successors and assigns.
Guaranty. The word"Guaranty"means this guaranty from Guarantor to Lender.
Indebtedness. The word "Indebtedness" means Guarantor's indebtedness to Lender as more
particularly described in this Guaranty.
Lender. The word"Lender"means CITY OF CANTON, its successors and assigns.
Note. The word "Note" means and includes without limitation all of Borrower's promissory
notes and/or credit agreements evidencing Borrower's loan obligations in favor of Lender,
together with all renewals of, extensions of, modifications of, refinancing of, consolidations of
and substitutions for promissory notes or credit agreements.
Related Documents. The words "Related Documents" mean all promissory notes, credit
agreements, loan agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the
indebtedness.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE
PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION,
EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE
8
UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO
LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN
THE MANNER SET FORTH IN THE SECTION TITLED "DURATION OF
GUARANTY". NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO
MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED DECEMBER
18,2018.
GUARANTOR:
/^�
X I I
'OfAN M. ENOWMBITANG
INDIVIDUAL ACKNOWLEDGMENT
STATE OF ILLINOIS )
) SS
COUNTY OF FULTON )
On this day before me, the undersigned Notary Public, personally appeared JEAN M. ENOWMBITANG,
to me known to be the individual described in and who executed the Commercial Guaranty, and
acknowledged that he or she signed the Guaranty as his or her free and voluntary act and deed, for the uses
and purposes therein mentioned.
Given u er, m and ad o cial seal this 18th day of December,2/0-18.
By Residing atJr�FL� 6
Notary Public in and for the State of Illinois.
My commission expires
E
IAL SEAL S N TINSMAN-STATE OF II1fN01SN EXPIRES.1111619
^"""nrHn.,v..�..j
9