**Exhibit10.19**

 

**MORTGAGEANDSECURITY AGREEMENTANDFIXTURE FINANCING STATEMENT**

 

THIS INDENTURE, made this 26th day of February, 2004, by andbetween UNITED WISCONSIN GRAIN PRODUCERS, LLC, a Wisconsin limited liabilitycompany, having its principal office at 100 Richland Street, Friesland,Wisconsin, 53935 (“Mortgagor”), and AGSTAR FINANCIAL SERVICES, PCA, a UnitedStates instrumentality, having its address at 1921 Premier Drive, Mankato,Minnesota, 56002 (“Mortgagee”).

 

**WITNESSETH:**

 

That Mortgagor is justly obligated to Mortgagee pursuant to thatcertain Construction and Revolving Loan Agreement dated as of the date hereofand executed by and between Mortgagor and Mortgagee (as the same may from timeto time be amended, modified, extended, renewed or restated, the “LoanAgreement”) and that certain Promissory Note of Mortgagor dated the datehereof and payable to the order of Mortgagee in the original principal amountof Thirty Three Million Twenty-Four Thousand Twenty and 00/100 Dollars($33,024,020.00) (as the same may from time to time be amended, modified,extended, renewed or restated, the “Note”) and does hereby GRANT,BARGAIN, SELL, MORTGAGE, WARRANT AND CONVEY unto Mortgagee, its successors andassigns, forever, all that tract or parcel of land situated in the County ofColumbia, and State of Wisconsin, described in Exhibit A attached hereto and bythis reference made a part hereof (the “Land”);

 

TOGETHER with all of the buildings and improvements of every kind anddescription now or hereafter located on the Land (the “Improvements”);

 

TOGETHER with all of the following property, rights and interests (theLand, the Improvements and such property, rights and interests beingcollectively called the “Premises”):

 

(a)                                  Mortgagor’sright, title and interest, including all mineral and water rights as well asany after-acquired title or reversion, in and to the beds of the ways, roads,streets, avenues and alleys adjoining the Land; and

 

(b)                                 alland singular the tenements, hereditaments, easements, appurtenances, passages,waters, water rights, water courses, riparian rights, other rights, libertiesand privileges thereof or in any way now or hereafter appertaining thereto,including homestead and any other claim at law or in equity as well as anyafter-acquired title, franchise or license and the reversion and reversions andremainder and remainders thereof; and

 

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(c)                                  allrents, issues, proceeds and profits accruing and to accrue from the Premises;and

 

(d)                                 allmaterials intended for construction, reconstruction, alteration and repair ofthe Improvements, all of which materials shall be deemed to be included withinthe Premises immediately upon the delivery thereof to the Premises and allfixtures and articles of personal property now or hereafter owned by Mortgagorand attached to or contained in and used in connection with the Premises,including, but not limited to, all Accounts and other rights to payment whetheror not earned by performance, and including, but not limited to, payment forproperty or services sold, leased, rented, licensed or assigned; Goods; FarmProducts; Chattel Paper; Inventory; Equipment; Instruments; InvestmentProperty; Documents; Deposit Accounts; Money; Letter-of-Credit Rights; GeneralIntangibles; Payment Intangibles; Software; Supporting Obligations; allpayments, rights to payment whether or not earned by performance, accounts,general intangibles and benefits, including, but not limited to, payments inkind, deficiency payments, letters of entitlement, storage payments, emergencyassistance, diversion payments, production flexibility contracts, contractreserve payments, ethanol incentive funds, bioenergy programs, under or fromany preexisting, current or future federal or state government program and, tothe extent not included in the foregoing as original collateral, the proceedsand products of the foregoing; and all renewals or replacements thereof orarticles in substitution therefor, whether or not the same are or shall beattached to the Improvements in any manner; it being mutually agreed that allthe aforesaid property owned by Mortgagor and placed by it on the Premisesshall, so far as permitted by law, be deemed to be affixed to the realty,security for the said indebtedness and covered by this Mortgage.  All capitalized terms in thissection are given the meaning attributed to them in the Uniform CommercialCode, as enacted in Wisconsin.

 

(e)                                  Allproceeds of any insurance payable to Mortgagor and all subsequent owners of thePremises as a result of the damage or destruction thereto.

 

(f)                                    Togetherwith all awards and other compensation hereafter paid to Mortgagor and allsubsequent owners of the Premises for any taking by eminent domain orcondemnation, either permanent or temporary, of all or any part of the Premisesor any easement or appurtenance thereof, including severance and consequentialdamages and change in grade of streets, and any conveyance by private sale inlieu thereof.

 

This Mortgage shall also constitute a security agreement as defined inthe Uniform Commercial Code with respect to (and the Mortgagor hereby grantsMortgagee a security interest in) all personal property and fixtures owned byMortgagor and included in the Premises. The Mortgagor will pay to Mortgagee, on demand, the amount of any andall reasonable costs and expenses (including reasonable attorneys’ fees andlegal expenses) paid or incurred by Mortgagee in connection with the exerciseof any right or remedy referred to in this paragraph.  As to those items of collateral described in this Mortgage thatare or are to become fixtures, it is intended that THIS MORTGAGE SHALL BEEFFECTIVE AS A FINANCING STATEMENT FILED AS A FIXTURE FILING from the date ofits filing in the real estate records of the County where the

 

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Premises aresituated.  The name of the record ownerof the Premises is the Mortgagor set forth in page one of this Mortgage.  Information concerning the security interestcreated by this instrument may be obtained from Mortgagee, as secured party, atits address as set forth in page one of this Mortgage.  The address of the Mortgagor, as debtor, isas set forth in page one to this Mortgage. The Mortgagor’s federal identification number is 39-2032455.  This document covers goods which are or areto become fixtures.  Upon the occurrenceof a default, the giving of any required notice and the expiration of anyapplicable grace or cure period, Mortgagee may, at its option, sell orotherwise dispose of such personal property and fixtures by public or privateproceedings, separate from or together with the sale of the Premises, inaccordance with the provisions of the Wisconsin Uniform Commercial Code, andMortgagee may with respect to such fixtures or personal property, exercise anyother rights or remedies of a secured party under the Wisconsin UniformCommercial Code.  Unless such personalproperty and/or fixtures are perishable or threatens to decline speedily invalue or are of a type customarily sold on a recognized market, Mortgagee shallgive Mortgagor at least ten (10) days prior written notice of the time andplace of any public sale of such fixtures or personal property or otherintended disposition thereof.  Uponoccurrence of any event of default, the Mortgagee reserves the option, pursuantto the appropriate provisions of the Wisconsin Uniform Commercial Code toproceed with respect to such personal property and/or fixtures as part of thePremises in accordance with its rights and remedies with respect to thePremises, in which event the default provisions of the Wisconsin UniformCommercial Code shall not apply.

 

TO HAVE AND TO HOLD the same unto Mortgagee and its successors andassigns forever.

 

AND MORTGAGOR COVENANTS AND WARRANTS that Mortgagor is lawfully seizedof an indefeasible estate in fee simple of the Premises; that the same is freefrom all encumbrances and liens whatsoever, except the “Permitted Exceptions”identified on Exhibit B hereto, that Mortgagor has good and legal right, powerand authority to so convey the same and that Mortgagor and its successors andassigns in interest will forever WARRANT AND DEFEND the title of the Premisesand the lien and priority of this Mortgage against the lawful claims anddemands of all persons whomsoever, subject to the Permitted Exceptions; andthat Mortgagor will execute, acknowledge and deliver all and every such furtherassurances unto Mortgagee of the title to all and singular the Premises herebyconveyed and intended so to be, or which Mortgagor may be or shall becomehereinafter bound so to do.  All suchcovenants and warranties shall run with the land solely for the benefit ofMortgagee, its successors and assigns.

 

PROVIDED, NEVERTHELESS, that if Mortgagor shall well and truly pay toMortgagee, or order, the principal sum of THIRTY-THREE MILLION TWENTY-FOURTHOUSAND TWENTY and 00/100THS ($33,024,020.00) DOLLARS or such amount advancedto Mortgagor pursuant to the Loan Agreement, the Note, and any futureobligations of Mortgagor to Mortgagee under the Loan Agreement, the Note, orpursuant to other notes, contracts, guaranties or other evidences ofindebtedness or obligations now or hereafter executed by Mortgagor with or infavor of Mortgagee (which Loan Agreement, Note and other evidences ofindebtedness or obligations are hereinafter collectively referred to as the“Loan Documents”) with interest on such principal sum pursuant to the LoanDocuments at the rate specified in the Loan Documents.

 

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The indebtednesspursuant to the Loan Documents mature not later than July 1, 2010.  The provisions of the Loan Documents areincorporated herein by reference.

 

AND PROVIDED, that if Mortgagor shall fully perform all of the terms,covenants, conditions and warranties of this Mortgage, then this indenture isto be NULL AND VOID and shall be released of record at the expense ofMortgagor, OTHERWISE to remain in full force and effect.

 

MORTGAGOR FURTHER COVENANTS AND AGREES AS FOLLOWS:

 

1.                                       Topay promptly the principal of, premium, if any, and interest, fixed, contingentor otherwise, on the indebtedness evidenced by the Loan Documents together withall other sums arising under the Loan Documents and this Mortgage and securedhereby, at the times and in the manner herein and in the Loan Documentsprovided.

 

2.                                       Tokeep the Premises free from statutory liens of every kind; to pay, (except whenpayment for all such items has been made under Paragraph 3 hereof) beforedelinquent and before any interest or penalty for non-payment attaches thereto,all taxes, assessments, water rates, sewer rentals and other governmentalcharges, fines, or impositions of every nature and to whomever assessed thatmay now or hereafter be levied or assessed upon the Premises or any partthereof, or upon the rents, issues, income or profits thereof, whether any orall said taxes, assessments, water rates, sewer rentals or charges, fines orimpositions be levied directly or indirectly or as excise taxes or incometaxes; at Mortgagee’s request, to deliver to Mortgagee, at least ten (10) daysbefore delinquent, receipted bills evidencing payment therefor; to pay in full,under protest in the manner provided by statute, any tax, assessment, rate,rental, fine, imposition or charge aforesaid which Mortgagor may desire to contest;and in the event of the passage, after the date of this Mortgage, of any law ofthe State of Wisconsin, deducting from the value of land for the purpose oftaxation, any lien thereon or changing in any way the laws for the taxation ofmortgages or debts secured by mortgage for state or local purposes, or themanner of the collection of any such taxes, so as to impose a tax, or upon therendition of any Court of competent jurisdiction of a decision that anyundertaking by Mortgagor as in this paragraph or elsewhere in this Mortgageprovided is legally inoperative, then the principal indebtedness together withaccrued interest and all other sums due hereunder (but not including anyprepayment premium) and under the Loan Documents will be due and payable at theelection of Mortgagee thirty (30) days’ after written notice to the Mortgagor,of such election, provided, however, said option and right shall be unavailingand the Loan Documents and Mortgage shall remain in effect as though said lawhad not been enacted, if, notwithstanding such law, Mortgagor lawfully may payany such tax or taxes assessment, rate, rental, fine, imposition or charge toor for Mortgagee and does in fact pay same when payable.  An assessment which is payable ininstallments at the application of Mortgagor or any lessee of the Premisesshall nevertheless, for the purpose of this paragraph, be deemed due andpayable in its entirety on the day the first installment becomes due andpayable or a lien unless Mortgagee agrees that such assessment may be paid ininstallments, which agreement shall not be unreasonably withheld.  Except when payment has been made underParagraph 3 hereof, at the request of Mortgagee, Mortgagor shall deliver toMortgagee receipted bills evidencing payment of such installments at

 

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least ten (10)days before delinquent.  In the event ofa default under this Mortgage, including a default under the foregoing,Mortgagee shall have the option, in addition to its other remedies, to requirethe Mortgagor to pay immediately the outstanding balance of any assessmentsbeing paid in installments.

 

3.                                       Tokeep the Improvements insured against loss or damage resulting from fire,windstorm and other hazards, casualties and contingencies in an amount equal tothe replacement cost thereof, and to pay promptly, when due, any premiums onsuch insurance.  All insurance policiesshall be in such form and with such endorsements as shall be reasonablyacceptable to Mortgagee and shall be carried in companies approved by Mortgageeand policies and renewals, marked ‘Paid’ or Certificates of Insurance, shall bedelivered to Mortgagee at least ten (10) days before the expiration of the oldpolicies and shall have attached thereto standard non-contributing mortgageeclause (in favor of and entitling Mortgagee to collect any and all of theproceeds payable under all such insurance) as well as standard waiver ofsubrogation endorsement, all to be in form acceptable to Mortgagee.  In the event of a change in ownership oroccupancy of the Premises immediate notice thereof by mail shall be deliveredby Mortgagee to all insurers and in the event of loss, Mortgagor will giveimmediate notice by mail to Mortgagee. Except for losses in an annual aggregate amount of $50,000 or less,which Mortgagor shall handle directly, the Mortgagor hereby authorizesMortgagee, at Mortgagee’s option, to collect, adjust and compromise any lossesunder any of the insurance aforesaid and after deducting costs of collection toapply the proceeds at its option as follows: (1)  As a credit upon any portionas selected by Mortgagee, of the indebtedness secured hereby, or (2) Torestoring the improvements in which event Mortgagee shall not be obligated tosee the proper application thereof nor shall the amount so released or used bedeemed a payment on any indebtedness secured hereby, or (3) To deliver same tothe owner of the Premises.  In the eventof foreclosure of this Mortgage, or other transfer of title to the Premises inextinguishment of the indebtedness secured hereby, all right, title andinterest of Mortgagor in and to any insurance policies then in force shall passto the purchaser or grantee of the Premises. Mortgagor shall not carry separate insurance, concurrent in kind or formand contributing, in the event of loss, with any insurance policies requiredhereunder.  Mortgagor shall at all timesbe in compliance with the terms and provisions of all insurance policiesrequired hereunder or in fact maintained by Mortgagor with respect to thePremises whether or not required hereunder.

 

That notwithstanding any provisions herein to the contrary and inparticular the foregoing provisions of this Section 3, in the event of anysuch loss or damage as therein described to the improvements upon the Premises,it is hereby understood, covenanted and agreed that the Mortgagee shall makethe proceeds received under any such insurance policies as therein describedavailable for the restoration of the improvements so damaged, subject to thefollowing conditions:  (a) thatMortgagor is not then in default under any of the terms, covenants andconditions hereof; (b) that Mortgagee shall first be given satisfactory proofthat such improvements have been fully restored or that by the expenditure ofsuch money will be fully restored, free and clear of all liens, except as tothe lien of this Mortgage; (c) that in the event such proceeds shall beinsufficient to restore or rebuild the said improvements, Mortgagor shalldeposit promptly with Mortgagee funds which, together with the insuranceproceeds, shall be sufficient to restore and rebuild the said Premises; (d)that in the event Mortgagor shall fail

 

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within areasonable time, subject to delays beyond its control, to restore or rebuildthe said improvements, then Mortgagee, at its option, may restore or rebuildthe said improvements for or on behalf of the Mortgagor and for such purposemay do all necessary acts; and (e) that the excess of said insurance proceedsabove the amount necessary to complete such restoration shall be applied ashereinbefore provided as a credit upon any portion as selected by Mortgagee, ofthe indebtedness secured hereby.  In theevent any of the said conditions are not or cannot be satisfied, then thealternate disposition of such insurance proceeds as provided above in thisSection 3 shall again become applicable.

 

Under no circumstances shall Mortgagee become personally obligated totake any action to restore or rebuild the said Improvements.  In the event of foreclosure of thisMortgage, or other transfer of title to the Premises in extinguishment of theindebtedness secured hereby, all right, title and interest of the Mortgagor, inand to any insurance policies then in force, and to the proceeds of any suchpolicies, shall pass to the purchaser or grantee.

 

4.                                       Tocarry and maintain such liability and indemnity insurance (including, butwithout limitation, water damage and the so-called assumed and contractual liabilitycoverage) as may reasonably be required from time to time by Mortgagee informs, amounts and with companies satisfactory to Mortgagee.  Such insurance policies shall name Mortgageeas an additional insured.  Certificatesof such insurance, premiums prepaid, shall be deposited with Mortgagee andshall contain provision for thirty (30) days’ notice to Mortgagee prior to anycancellation thereof.

 

5.                                       Thatnone of the Improvements shall be materially altered, removed or demolished norshall any fixtures, appliances or articles of personal property on, in or aboutthe Improvements be severed, removed, sold or mortgaged, without the consent ofMortgagee which may be withheld in Mortgagee’s sole discretion except that suchconsent of Mortgagee shall not be required in the case of:  (i) the severance, removal or sale of anyfixtures, chattels or articles of personal property, provided that they arepromptly replaced by similar fixtures, chattels and articles of personalproperty, at least equal in quality and condition as those replaced, free fromany security interest in or encumbrance thereon or reservation of titlethereto; and (ii) alterations, removals or demolitions done for the purpose ofmaking improvements done in the ordinary course of operating the Premises asincome producing property provided that any such alteration, removal ordemolition costs less than $50,000; to permit, commit or suffer no waste,impairment or deterioration of the Premises or any part thereof; to keep andmaintain the Premises and every part thereof in thorough repair and condition;to effect such repairs as Mortgagee may reasonably require and from time totime to make all needful and proper replacements so that the Premises will, atall times, be in good condition, fit and proper for the respective purposes forwhich they were originally erected or installed; to comply with all statutes,orders, requirements or decrees relating to the Premises by any federal, stateor municipal authority; to observe and comply with all conditions andrequirements necessary to preserve and extend any and all rights, licenses,permits (including but not limited to zoning variances, special exceptions andnon-conforming uses), privileges, franchises and concessions which areapplicable to the Premises or which have been granted to or contracted for byMortgagor in connection with any existing or presently contemplated use of thePremises; and to permit Mortgagee or its agents, at all reasonable times,

 

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to enter upon andinspect the Premises; provided that such inspections shall not unreasonablydisrupt Mortgagor’s business operations.

 

6.                                       Tosave Mortgagee harmless from all reasonable costs and expenses, includingreasonable attorneys’ fees, and costs of a title search, continuation ofabstract and preparation of survey, incurred by reason of any action, suit,proceeding, hearing, motion or application before any court or administrativebody (excepting an action to foreclose or to collect the debt secured hereby)in and to which Mortgagee may be or become a party by reason hereof, includingbut not limited to condemnation, bankruptcy and administrative proceedings, aswell as any other of the foregoing wherein proof of claim is by law required tobe filed or in which it becomes necessary to defend or uphold the terms of andthe lien created by this Mortgage, and all money paid or expended by Mortgageein that regard, together with interest thereon from date of such payment at therate set forth in the Loan Documents shall be so much additional indebtednesssecured hereby and shall be immediately and without notice due and payable byMortgagor.

 

7.                                       ThatMortgagor will give Mortgagee immediate written notice of the actual orthreatened commencement of any proceedings under eminent domain affecting allor any part of the Premises or any easement therein or appurtenance thereof,including severance and consequential damage and change in grade of streets,and will deliver to Mortgagee copies of any and all papers served in connectionwith any such proceedings.  Mortgagorfurther covenants and agrees to make, execute and deliver to Mortgagee, at anytime or times upon request, free, clear and discharged of any encumbrances ofany kind whatsoever, any and all further assignments and/or other instrumentsdeemed necessary by Mortgagee for the purpose of validly and sufficientlyassigning all awards and other compensation heretofore and hereafter to be madeto Mortgagor (including the assignment of any award from the United StatesGovernment at any time after the allowance of the claim therefor, theascertainment of the amount thereof and the issuance of the warrant for paymentthereof) for any taking, either permanent or temporary, under any suchproceedings.

 

Mortgagor further agrees that should the Premises or any part thereof,including any easement or appurtenance thereof, be taken or damaged,permanently or temporarily, by reason of any public improvement or condemnationproceedings, including severance and consequential damage and change in gradeof streets, or damage by earthquake or in any other manner, Mortgagee shall beentitled to any compensation, award, payment or relief therefor and Mortgagordoes hereby appoint Mortgagee its attorney-in-fact, coupled with an interest,and authorizes, directs and empowers such attorney, at the option of theattorney on behalf of the Mortgagor, its successors or assigns, to commence,appear in and prosecute, in its own name, any action or proceedings, to adjustor compromise any claim therefor and to collect and receive proceeds thereof,and to give proper receipts and acquittances therefor and after deductingexpenses of collection, to apply the net proceeds as a credit on any portion,as selected by Mortgagee, of the indebtedness secured hereby notwithstandingthe fact that the amount owing thereon may not then be due and payablehereunder or that the indebtedness is otherwise adequately secured, provided,however, that no prepayment premium shall be due in connection with any netproceeds applied to the indebtedness.

 

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8.                                       ThatMortgagor within five (5) business days upon request by mail, will furnish awritten statement duly acknowledged confirming the amount of the outstandingprincipal balance set forth in the Loan Documents and all interest accruedthereon and all other amounts due upon this Mortgage and whether any offsets ordefenses exist against the mortgage debt.

 

9.                                       Thatupon default by Mortgagor in the performance or observance of any of the terms,covenants, conditions or warranties herein or in the Loan Documents contained,after any notice required by the terms of the Loan Documents and the expirationof any applicable cure or grace period, Mortgagee may, at its option, andwhether electing to declare the whole indebtedness due and payable or not,perform the same without waiver of any other remedy, and any amount paid oradvanced by Mortgagee in connection therewith or any other reasonable costs,charges or expenses incurred in the protection of the Premises and themaintenance of this lien including reasonable attorneys’ fees, with interestthereon, at the rate set forth in the Loan Documents shall be repayable by theMortgagor without demand and shall be an additional lien upon the Premisesprior to any right, title, interest or claim attaching or accruing subsequentto the lien of this Mortgage and shall be secured by and collectible as a partof this Mortgage.

 

10.                                 Thatupon any default by Mortgagor in the payment of the principal sum securedhereby or of any installment thereof, or of interest thereon, as they severallybecome due, or any default, in the performance or observance of any other term,covenant or condition in this Mortgage or in the Loan Documents or in anyinstrument now or hereafter evidencing or securing said debt, and thecontinuance of any such default after the giving of any required notice and theexpiration of any applicable grace period provided in Paragraph 32 of thisMortgage, then in any or either of said events, the whole indebtedness securedhereby together with accrued interest and all other sums due hereunder or underthe Loan Documents, shall, at the option of Mortgagee, become immediately dueand payable together with interest at the rate set forth in the Loan Documentsand together with reasonable attorneys’ fees and without relief from valuationor appraisement laws, and thereupon, or at any time during the existence of anysuch default, Mortgagee may exercise with respect to all personal property andfixtures which are a part of the Premises, all the rights and remedies accordedupon default to a secured party under the Uniform Commercial Code as in effectin the State of Wisconsin, and may proceed to foreclose this Mortgage by judicialproceedings, anything hereinbefore or in said Loan Documents contained to thecontrary notwithstanding, and any failure to exercise said option shall notconstitute a waiver of the right to exercise the same at any other time.  Mortgagee may become the purchaser at anysuch foreclosure sale, and for the purpose of making settlement or payment ofthe purchase price, shall be entitled to use the Loan Documents and any claimsfor interest accrued and unpaid thereon, together with all other sums, with interest,advanced and unpaid hereunder, and all statutory charges for such foreclosure,including maximum attorney’s fees allowed by law in order that there may becredited as paid on the purchase price the sums then due under the LoanDocuments including principal and interest thereon and all other sums, withinterest, advanced and unpaid hereunder, and all charges and expenses of suchforeclosure including attorneys’ fees allowed by law.

 

11.                                 Thatupon default by Mortgagor as aforesaid, and the election of acceleration byMortgagee as aforesaid, Mortgagee may, at its option, and subject to the noticeprovisions of this

 

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Mortgage, collectthe whole amount due and payable in a suit at law or by foreclosure of thisMortgage by action or by the exercise of any other remedy available at law orequity, and Mortgagee may sell the property at public sale and give deeds ofconveyance to the purchasers pursuant to applicable Wisconsin statutes, and mayapply the proceeds of any public sale to pay all amounts then due on thisMortgage, including principal, interest, and the amount of any taxes,assessments and insurance premiums and any other sum which may then be dueMortgagee,  and also to pay all costsand expenses of any such foreclosure sale, including but not limited toattorney fees, costs of continuation of abstract, examination of title andtitle insurance, all of which costs, expenses and fees Mortgagor agrees to pay.

 

12.                                 Thatin case of foreclosure of this Mortgage in any court of law or equity, whetheror not any order or decree shall have been entered therein, and to the extentpermitted by law, a reasonable sum as aforesaid shall be allowed for attorneys’fees of the plaintiff in such proceeding, for stenographers’ fees and for allmoneys expended for documentary evidence and the cost of a complete abstract oftitle and title report for the purpose of such foreclosure, such sums to besecured by the lien hereunder; and, to the extent permitted by law, there shallbe included in any judgment or decree foreclosing this Mortgage and be paid outof said rents, issues and profits from the Premises or the proceeds of any salemade in pursuance of any such judgment or decree:  (1) all reasonable costs and expenses of such suit or suits,advertising, sale and conveyance, including reasonable attorneys’, solicitors’and stenographers’ fees, outlays for documentary evidence and the cost of saidabstract, examination of title and title report; (2) all moneys advanced byMortgagee, if any, for any purpose authorized in this Mortgage, with interestas herein provided; (3) all the accrued interest and Default Interest remainingunpaid on the indebtedness hereby secured; (4) any acceleration premium thenarising; and (5) all the said principal money remaining unpaid.  The overplus of the proceeds, if any, shallbe paid to the said Mortgagor, or as the court may direct.

 

13.                                 Thatin case of any foreclosure sale of the Premises, the same may be sold in one ormore parcels.  Mortgagor, for Mortgagorand all who may claim through or under Mortgagor, waives any and all right tohave the Premises marshaled upon foreclosure of the lien hereof and agrees thatany court having jurisdiction to foreclose such lien may order the Premisessold as an entirety.  Mortgagor agreesthat to the extent permitted by law, this Mortgage may be foreclosed byMortgagee at Mortgagee’s option, pursuant to the provisions ofSection 846.101, 846.102 and/or 846.103 of the Wisconsin statutes or anysuccessor thereof.

 

14.                                 Thatthe failure of Mortgagee to exercise the option for acceleration of maturityand/or foreclosure following any default as aforesaid or to exercise any otheroption granted to Mortgagee hereunder in any one or more instances, or the acceptanceby Mortgagee of partial payments hereunder shall not constitute a waiver of anysuch default, but such option shall remain continuously in force.  Acceleration of maturity, once claimedhereunder by Mortgagee, may, at the option of Mortgagee, be rescinded bywritten acknowledgment to that effect by Mortgagee, but the tender andacceptance of partial payments alone shall not in any way affect or rescindsuch acceleration of maturity.

 

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15.                                 Thatin the event of foreclosure of this Mortgage, Mortgagor does hereby authorizeand empower Mortgagee, its successors and assigns:  (a) to pay all taxes, special assessments, assessments, waterrates, sewer rentals and other governmental charges of every kind and naturethat may then have been or that thereafter during the period of redemption fromsale under such foreclosure may be levied or assessed upon the Premises or anypart thereof; (b) to keep the Improvements insured and to pay the premiumstherefor as required hereunder during the period of redemption from the saleunder such foreclosure; and (c) to keep the Premises in thorough repair asrequired hereunder during the period of redemption of the sale from suchforeclosure, and any amount so paid or advanced by Mortgagee under theauthority of this paragraph, together with interest thereon at the rate setforth in the Loan Documents, shall be an additional lien upon the Premisesprior to any right, title, interest or claim thereon attaching or accruing subsequentto the lien of this Mortgage and shall be secured by and collectible as part ofthe within Mortgage.

 

16.                                 Thatat the option of Mortgagee, this Mortgage shall become subject and subordinate,in whole or in part (but not with respect to priority of entitlement to anyinsurance proceeds, award in condemnation or any intervening judgment lien) toany and all leases of all or any part of the Premises upon the execution andrecording in the offices of the County Recorder in and for Columbia County,Wisconsin, by Mortgagee of a unilateral declaration to that effect.

 

17.                                 Thatthe rights and remedies herein provided are cumulative and Mortgagee mayrecover judgment thereon, issue execution therefor, and resort to every otherright or remedy available at law or in equity, without first exhausting andwithout affecting or impairing the security or any right or remedy afforded bythis Mortgage and no enumeration of special rights or powers by any provisionsof this Mortgage shall be construed to limit any grant of general rights orpowers, or to take away or limit any and all rights granted to or vested inMortgagee by virtue of the laws of Wisconsin.

 

18.                                 TheMortgagor hereby waives, to the extent permitted by law, the benefits of allvaluation, appraisement, homestead, exemption, stay and moratorium laws, now inforce or which may hereafter become laws.

 

19.                                 ThatMortgagee, without notice, and without regard to the consideration, if any,paid therefor, and notwithstanding the existence at that time of any inferiorliens thereon, may release any part of the security described herein or anyperson liable for any indebtedness secured hereby without in any way affectingthe priority of the lien of this Mortgage, to the full extent of theindebtedness remaining unpaid hereunder upon any part of the security notexpressly released and may agree with any party obligated on said indebtednessor having any interest in the security described herein to extend the time forpayment of any part or all of the indebtedness secured hereby.  Such agreement shall not, in any way,release or impair the lien hereof, but shall extend the lien hereof as againstthe title of all parties having any interest in said security which interest issubject to said lien.

 

20.                                 Inthe event Mortgagee (a) releases, as aforesaid, any part of the securitydescribed herein or any person liable for any indebtedness secured hereby, (b)grants an extension of time

 

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of any payments ofthe debt secured hereby; (c) takes other or additional security for the paymentthereof; (d) waives or fails to exercise any right granted herein or in theLoan Documents, said act or omission shall not release the Mortgagor,subsequent purchasers of the Premises or any part thereof, or makers orsureties of this Mortgage or of the Loan Documents, under any covenant of thisMortgage or of the Loan Documents, nor preclude Mortgagee from exercising anyright, power or privilege herein granted or intended to be granted in the eventof any other default then made or any subsequent default.

 

21.                                 Thatnothing herein contained nor any transaction related thereto shall be construedor so operate as to require the Mortgagor to make any payment or to do any actcontrary to law; that if any clauses or provisions herein contained operate orwould prospectively operate to invalidate this Mortgage in whole or in partthen such clauses and provisions only shall be held for naught, as though notherein contained, and the remainder of this Mortgage shall remain operative andin full force and effect.  All notices,approvals, consents, requests and other communications required to be givenhereunder shall be in writing and mailed, faxed, or delivered at the addressesset forth below, or at such other address as such party may specify by writtennotice to the other parties hereto:

 
| If to the  Mortgagor: |   | United Wisconsin  Grain Producers, LLC                      |
|-----------------------|--------|-------------------------------------------------------------|
|                  |   | 100 Richland  Street                                        |
|                  |   | P.O. Box 247                                                |
|                  |   | Friesland,  WI  53935                                  |
|                  |   | Telephone:  (920) 348-5016                             |
|                  |   | Fax:  (920) 348-5009                                   |
|                  |   | Attention:  President                                  |
|                  |   |                                                        |
| With a copy to:       |   | Thomas D.  Johnson                                          |
|                  |   | Brown Winick  Graves Gross Baskerville and Schoenebaum, PLC |
|                  |   | 666 Grand  Avenue, Suite 2000                               |
|                  |   | Des Moines, Iowa  50309                                     |
|                  |   | Facsimile: (515)  242-2488                                  |
|                  |   |                                                        |
| If to the  Mortgagee: |   | AgStar Financial  Services, PCA                             |
|                  |   | 1921 Premier  Drive                                         |
|                  |   | P.O. Box 4249                                               |
|                  |   | Mankato, MN  56002-4249                                     |
|                  |   | Telephone: (507)  386-4242                                  |
|                  |   | Facsimile: (507)  344-5088                                  |
|                  |   | Attention: Mark  Schmidt                                    |

 

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| With copy to: |   | Phillip L. Kunkel                 |
|---------------|--------|-----------------------------------|
|          |   | Gray Plant Mooty                  |
|          |   | 1010 West St.  Germain, Suite 600 |
|          |   | St. Cloud,  MN  56301        |
|          |   | Facsimile: (320)  252-4482        |

 

All such noticesand communications shall have been duly given and shall be effective:  (a) when delivered; (b) when transmitted viafacsimile to the number set forth above; (c) the business day following the dayon which the same has been delivered prepaid (or pursuant to an invoicearrangement) to a reputable national overnight air courier service; or (d) thethird business day following the day on which the same is sent by certified orregistered mail, postage prepaid.  Anyconfirmation sent by the Mortgagee or Mortgagor to a Borrower of any borrowingunder this Agreement shall, in the absence of manifest error, be conclusive andbinding for all purposes

 

22.                                 Thatthe Premises herein mortgaged being located in the State of Wisconsin, thisMortgage and the rights and indebtedness hereby secured shall, without regardto the place of contract or payment, be construed and enforced according to theinternal laws of the State of Wisconsin.

 

23.                                 Mortgagoragrees that upon or any time after the occurrence and continuance beyond anyapplicable cure period of a default hereunder or during the pendency of anyaction to foreclose this Mortgage, Mortgagee, shall upon application to thecircuit court where the Premises or any part thereof is located by an actionseparate from the foreclosure or in the foreclosure action (it being understoodand agreed that the existence of a foreclosure is not a prerequisite to anyaction for a receiver hereunder), be entitled to the appointment of a receiverfor the rents, profits and all other income of every kind which shall accrueand be owing for the use or occupation of the Premises or any part thereof.  Mortgagee shall be entitled to theappointment of a receiver without regard to waste, adequacy of the security orsolvency of Mortgagor or without the requirement of posting of any bond orsecurity and without regard to the then value of the Premises.  The Mortgagee hereunder or any holder of theLoan Documents may be appointed as the receiver.  The receiver, who shall be an experienced property manager, shallcollect (until the indebtedness secured hereby is paid in full and, in the caseof a foreclosure action, during the entire redemption period) the rents,profits and all other income of every kind, manage the Premises so to preventwaste, execute leases within or beyond the period of the receivership ifapproved by the court and apply all rents, profits and other income collectedby the receiver to the following in such order as may be designated byMortgagee: 

 

A.                                   Tothe payment of all reasonable fees of the receiver, if any, approved by thecourt;

 

B.                                     Tothe repayment of tenant security deposits, with interest thereon, if requiredby applicable statutes;

 

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C.                                     Tothe payment when due of, delinquent or current, real estate taxes or specialassessments with respect to the Premises, or the periodic escrow for thepayment of the same;

 

D.                                    Tothe payment when due of premiums for insurance of the type required hereby, orthe periodic escrow for payment of the same, if any;

 

E.                                      Tothe payment of expenses for normal maintenance of the Premises; and

 

F.                                      Ifreceived prior to any foreclosure sale of the said Premises, to Mortgagee forpayment of the indebtedness secured by this Mortgage, but no such payment madeafter acceleration of the indebtedness shall affect such acceleration.

 

 

As provided in applicable statutes, Mortgagee shall have the right atany time and without limitation to advance money to the receiver to pay anypart of or all of the items which the receiver should otherwise pay if cashwere available from the Premises and sums so advanced with interest at the rateprovided in the Loan Documents, shall be secured hereby, or if advanced duringthe period of redemption, shall be a part of the sum required to be paid toredeem from the sale.

 

Upon the occurrence and continuation of a default beyond any applicablecure period, Mortgagor for itself and any subsequent owner of the Premiseshereby waives any and all defenses to the application for a receiver and herebyspecifically consents to such appointment upon notice but nothing hereincontained is to be construed to deprive the holder of this Mortgage of anyother right, remedy or privilege it may have under the law to have a receiverappointed.  The provision for theappointment of a receiver and the assignment of such rents, issues and profitsis an express condition upon which the loan hereby secured is made.  The rights and remedies herein provided forshall be deemed to be cumulative and in addition to, and not in limitation of,those provided by law, and if there be no receiver so appointed, Mortgagee mayproceed to collect the rents, issues and profits from the Premises.

 

24.                                 Thatin the event of the sale or transfer by operation of law, or otherwise, of allor any part of the Premises, Mortgagee is hereby authorized and empowered todeal with such vendee or transferee with reference to the Premises, or the debtsecured hereby, or with reference to any of the terms or conditions hereof, asfully and to the same extent as it might with Mortgagor, without in any wayreleasing or discharging Mortgagor from its liability or undertaking hereunder.

 

25.                                 Mortgagorshall maintain and keep in full force and effect its legal existence, its rightto carry on its business, and all franchises, rights and privileges heretoforeor hereafter granted to or for Mortgagor, and shall file within the prescribedtime any and all franchise tax reports and any other tax reports or returns,and pay all such taxes when due and payable all in compliance with theprovisions of any present or future law.

 

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26.                                 Mortgagorrepresents and warrants that on the date on which this Mortgage is executed anddelivered, neither it, this Mortgage, nor the Premises, nor the contemplateduse of the Improvements on the Premises are in violation of any easements, covenantsand whether restrictions of record or not, affecting or binding on thePremises.  Mortgagor further covenantsthat Mortgagor shall at all times faithfully and timely perform or cause to beperformed all of the terms, covenants and conditions, on Mortgagor’s part to beperformed, contained in any agreements, easements, permits or other instrumentsaffecting the Premises.  Mortgagorcovenants and agrees that it will not waive or modify any of the terms of anyof such agreements, easements, permits or other instruments or the rights oreasements created thereby or cancel or surrender same or release or dischargeany party thereunder or person bound thereby of or from any of the terms,covenants or conditions thereof or permit the release or discharge of any partythereunder in a manner that adversely affects mortgagee’s security, without, ineach instance, the prior written consent of Mortgagee.  Mortgagor shall take all necessary action toeffect the performance of all of the obligations of the other parties to andthe persons bound by the said agreements, easements, permits and otherinstruments.

 

Mortgagor will promptly give to Mortgagee copies of all notices,advices, demands, requests, consents, statements, approvals, disapprovals,authorizations, determinations, satisfactions, waivers, designations, refusals,confirmations or denials which it shall give or receive under any of theaforesaid agreements, easements, permits and other instruments to the extentany of the foregoing adversely affect Mortgagee’s security.

 

27.                                 Mortgagorhereby represents and warrants that:

 

(a)                                  thePremises and the operations presently conducted thereon are not in materialviolation of any zoning ordinances, building codes or Environmental Laws (ashereinafter defined) ;

 

(b)                                 neitherMortgagor nor to the knowledge of Mortgagor, after due inquiry, any otherperson or entity has ever caused or permitted any hazardous substance to beplaced, held, located, generated, treated or disposed of, on, under or at thePremises except in conformance with applicable law;

 

(c)                                  Mortgagorhas not received any notice from any governmental agency that the Premises andthe operations presently conducted thereon are the subject of any pending orthreatened investigation, inquiry or proceeding under any Environmental Laws;

 

(d)                                 neitherMortgagor, nor to the knowledge of Mortgagor, after due inquiry, any otherperson, has ever caused or permitted any asbestos to be located on thePremises;

 

(e)                                  toMortgagor’s knowledge, after due inquiry, no hazardous substance has evermigrated in, on, about or under the Premises;

 

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(f)                                    Mortgagorhas no knowledge of any use of the Premises by any prior owner which violatedany applicable Environmental Laws; and

 

(g)                                 Mortgagorhas duly obtained or secured all necessary permits, licenses, and othergovernmental authorizations either necessary or appropriate under EnvironmentalLaws for the construction and operation of the Project.

 

28.                                 Mortgagorhereby covenants and agrees that:

 

(a)                                  itsown use of the Premises and the operations and activities conducted thereonwill at all times be in compliance with all Environmental Laws and that it willexercise its best efforts to secure compliance by other users of the Premiseswith all Environmental Laws;

 

(b)                                 Mortgagorwill not cause or permit any hazardous substance ever to be generated, handled,used, stored treated or placed on, under or at, or to escape, leak, seep, spillor be discharged, emitted or released from, the Premises or any part thereof,except in compliance with Environmental Laws, provided, however,that Mortgagor may store reasonable quantities of chemicals, cleansers andother materials reasonably required for maintenance and operation of thePremises provided the same are properly stored, are used in the ordinary courseof business, and in compliance with all applicable laws and provided, however,that Mortgagor may engage in the manufacturing, processing, storage,transportation and production of ethanol, including all ingredients andbyproducts in compliance with applicable laws;

 

(c)                                  theuse of the Premises by Mortgagor of the Premises will not result in theunlawful release or presence of any hazardous substance or solid waste in, onor under the Premises and Mortgagor will exercise its best efforts to assurethat the use of the Premises by any tenant, licensee or other occupant will notresult in the unlawful release or presence of any hazardous substance or solidwaste in, on or under the Premises;

 

(d)                                 Mortgagorshall give immediate notice to the Mortgagee of any violation, or receipt ofany notice or complaint of any violation or alleged violation, of anyEnvironmental Laws.  Mortgagor will, atthe Mortgagor’s expense, furnish Mortgagee with any and all environmentalreports, tests, analyses, and studies reasonably requested by Mortgagee todetermine whether the Premises has been or is being used for the handling,generation, disposal, storage, or transportation of any hazardous substances,and whether the Premises and all activities conducted thereon are in compliancewith all Environmental Laws.

 

(e)                                  Mortgagee,its agents and representatives, may from time to time make periodic inspectionsof the Premises and in connection therewith may make

 

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such tests of the air, soil, groundwater, and building materials, asMortgagee, its agents and representatives, shall reasonably deem necessary,provided, however, such inspections shall not unreasonably disrupt Mortgagor’sbusiness operations; and

 

(f)                                    Mortgagorshall use its best efforts to cause any and all tenants, licensees and otheroccupants of the Premises to conduct their respective businesses and uses ofthe Premises so as to comply in all respects with Environmental Laws.

 

For purposes of section 27 and this section28, the term“Environmental Laws” shall mean and include any and all laws, statutes,ordinances, rules, regulations, orders, or determinations of any governmentalauthority pertaining to health or to the environment, and relating to thePremises, including without limitation, the Clean Air Act, as amended, theComprehensive Environmental Response, Compensation and Liability act of 1980,as amended by the Superfund Amendments and Reauthorization Act of 1986(“SARA”), and as may be further amended (collectively “CERCLA”), the FederalWater Pollution Control Act Amendments, the Occupational Safety Health Act of1970, as amended, the Resource Conservation and Recovery Act of 1976, asamended (“RCRA”), the Hazardous Materials Transportation Act of 1975, asamended, the Safe Drinking Water Act, as amended, and the Toxic SubstancesControl Act, as amended.  Likewise, theterms “hazardous substance” and “Release” shall have the meanings specified inCERCLA and the terms “solid waste” and “disposal” (or “disposed”) shall havethe meanings specified in RCRA; provided, however, in the eventeither CERCLA or RCRA is amended so as to broaden the meaning of any termdefined therein, such broader meaning shall apply subsequent to the effectivedate of such amendment, and provided further that, to the extent thelaws of the state in which the mortgaged premises is located establish ameaning for “hazardous substance,” “release,” “solid waste” or “disposal” whichis broader than that specified in either CERCLA or RCRA, such broader meaningshall apply with regard to the Premises.

 

29.                                 Mortgagorcovenants and warrants that the Premises are and will be the subject of validlyissued and outstanding permits and that the Premises are (and Mortgagorcovenants that they will remain) permitted by and are consistent with any andall zoning, ecological, environmental and use restrictions and all othergovernmental laws, rules and regulations applicable to the Premises and Mortgagoragrees that these covenants and warranties shall be fully accurate and in forcecontinually hereafter for so long as the indebtedness secured hereby is unpaid.

 

30.                                 Mortgagorcovenants not to initiate, join in, or consent to any change in any zoning ordinance,private restrictive covenants or other public or private restriction changing,limiting or restricting the uses which may be made of the Premises or any partthereof, without the prior written consent of Mortgagee in each instance.  Without limiting the generality of theforegoing, (a) Mortgagor shall not by act or omission permit all or any part ofthe Premises to be availed of any municipal or governmental requirements forthe construction or maintenance of any building or other improvements on premisesnot part of the Premises, and (b) Mortgagor

 

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shall not by actor omission impair the integrity of the Premises as a parcel separate and apartfrom all other premises not subject to this Mortgage.  Any attempt by Mortgagor to take any action which would violateany of the foregoing provisions of this paragraph 30 shall be void.

 

31.                                 Notwithstandinganything herein or in the Loan Documents secured hereby to the contrary, it ishereby agreed that in no event shall the amount paid, or agreed to be paid, toMortgagee as interest pursuant to the terms of the Loan Documents exceed thehighest lawful rate permissible under applicable usury laws if any.  If Mortgagee would, but for the operation ofthis paragraph, ever receive as interest an amount which would exceed thehighest lawful rate, such amount which would be excessive interest shall beapplied to the reduction of the unpaid principal balance due hereunder and notto the payment of interest.

 

Mortgagor covenants and agrees that the indebtedness secured by thisMortgage and the proceeds of such indebtedness are for business purposes only.

 

Mortgagor hereby represents and warrants that no portion of thePremises is homestead property of Mortgagor.

 

32.                                 That(a) if default be made in the payment of the principal sum secured hereby or ofany installment thereof, or of interest thereon, or of any other sum duehereunder, under the Loan Documents or in any other document, instrument, oragreement now or hereafter evidencing or securing said debt as they severallybecome due and such default shall continue uncured for ten (10) days beyond thedue date thereof; (b) if default be made in the performance or observance ofany other term, covenant, or condition in this Mortgage or in the LoanDocuments or in any other document, instrument or agreement now or hereafterevidencing or securing said debt and such default shall continue uncured for aperiod of ten (10) days after notice to Mortgagor unless such default is ofsuch nature as cannot be cured within such ten (10) day period but can be curedduring a longer period and Mortgagor has initiated action to cure such defaultand diligently pursues the curing of such default, in which case, such ten (10)day period shall be extended for a time that is reasonably necessary to curesuch default; (c) if default be made in any payment or performance due underthe Loan Documents, this Mortgage or any other document, instrument oragreement now or hereafter evidencing or securing said debt and it is expresslystated herein or therein that there is no applicable grace period; (d) ifproceedings be instituted for the foreclosure or collection of any mortgage,judgment or lien prior or subordinate to the lien of this Mortgage materiallyaffecting the Premises; (e) if Mortgagor shall make a general assignment forthe benefit of creditors, or shall file a voluntary petition in bankruptcy, orshall be adjudicated a bankrupt or insolvent, or shall file any petition oranswer seeking, consenting to, or acquiescing in, reorganization, arrangement,adjustment, composition, liquidation, dissolution or similar relief, under anypresent or future statute, law or regulation relating to bankruptcy,insolvency, reorganization or relief of debtors or if Mortgagor shall file ananswer admitting or shall fail to deny the material allegations of a petitionagainst Mortgagor seeking any such relief shall not have been dismissed withinsixty (60) days after the commencement thereof; or (f) if a trustee, receiveror liquidator of Mortgagor or any substantial part of its properties or assetsshall be appointed with the consent or acquiescence of Mortgagor or if any suchappointment, if not so consented to or acquiesced in, shall remain unvacated or

 

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unstayed for anaggregate of sixty (60) days: then at such time, or upon the happening of anysuch event, or at any time thereafter unless cured to Mortgagee’s satisfaction,as the case may be, the entire principal sum secured hereby, together withaccrued interest or any portion thereof as selected by Mortgagee and all othersums due hereunder, under the Loan Documents and any other document, instrumentor agreement now or hereafter evidencing or securing the indebtedness, shall,at the option of Mortgagee, become immediately due and payable and shallthereupon be collectible by exercise of any remedy available under thisMortgage or any other document given as additional security for theindebtedness secured hereby as fully and completely as if all of the said sumsof money were originally stipulated to be paid on such day, anything in saidLoan Documents or in this Mortgage to the contrary notwithstanding, withreasonable attorneys’ fees and other reasonable costs and charges and withoutrelief from valuation or appraisement laws. In addition, such principal sum and all such other sums shall bearinterest from the date of such default until paid at the rate provided in theLoan Documents, such interest to be paid on demand.  The remedies provided under this paragraph shall be in additionto and not a limitation on any other rights or remedies contained in thisMortgage or available as a result of any default by Mortgagor hereunder.  Thereupon, or at any time during theexistence of any such default, Mortgagee may proceed to foreclose thisMortgage, anything herein or in said Loan Documents contained to the contrarynotwithstanding, including a partial foreclosure.  Any failure of Mortgagee to exercise any option which Mortgageemay have hereunder, under the documents and instruments evidencing and securingthe debt, or at law or in equity, shall not constitute a waiver of the right toexercise the same at any other time.

 

33.                                 Thatall covenants hereof shall run with the land solely for the benefit ofMortgagor and its successors and assigns.

 

34.                                 Thatthis Mortgage and the rights and indebtedness hereby secured, without regard tothe place of contract or payments, be construed and enforced according to the lawsof the State of Wisconsin.

 

35.                                 ThatMortgagor will do, execute, acknowledge and deliver such further reasonableacts, deeds, conveyances, transfers and assurances necessary or proper, in thereasonable judgment of Mortgagee, for the better assuring, conveying,mortgaging, assigning and confirming unto the Mortgagee all property mortgagedhereby.

 

36.                                 Eachright, power and remedy herein conferred upon Mortgagee is cumulative and inaddition to every other right, power or remedy, existing or implied, given nowor hereafter existing at law or in equity, except as specifically restrictedherein and each and every right, power and remedy herein set forth or otherwiseso existing may be exercised from time to time as often and in such order asmay be deemed expedient by Mortgagee, and the exercise or the beginning of theexercise of one right, power or remedy shall not be a waiver of the right toexercise at the same time or thereafter any other right, power or remedy; andno delay or omission of Mortgagee in the exercise of any right, power or remedyaccruing hereunder or arising otherwise shall impair any such right, power orremedy, or be construed to be a waiver of any default or acquiescence therein.

 

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37.                                 Nothing in this Mortgage shall be construed as constituting the Mortgagee amortgagee in possession.

 

38.                                 Mortgagorand mortgagee have had a full opportunity to review this agreement and haveeither consulted with their own attorneys regarding the terms of this agreementor specifically waived the right to do so. If there is ever a dispute regarding any provision of this agreement,the parties agree that this agreement shall not be construed against eitherMortgagor or Mortgagee or the preparer thereof.  

 

39.                                 Theunenforceability or invalidity of any provision or provisions hereof shall notrender any other provision or provisions herein contained unenforceable orinvalid.

 

40.                                 ThisMortgage shall not be modified or amended unless such modification or amendmentis in writing and signed by both parties hereto. 

 

41.                                 ThisMortgage is the entire understanding and agreement of the parties hereto withrespect to the subject matter hereof and supersedes all prior oral or writtenagreements regarding the subject matter hereof, except that nothing hereinshall supersede the Loan Documents, and to the extent that this Mortgage isinconsistent with such Loan Documents, the Loan Documents shall be controlling.

 

IT IS SPECIFICALLY AGREED that time is of the essence of this contractand that the waiver of the options, or obligations secured hereby, shall not,at any time thereafter, be held to be abandonment of such rights.  Except as provided by applicable law, noticeof the exercise of any option granted to Mortgagee herein, or in the LoanDocuments secured hereby, is not required to be given.

 

ALL OF THE COVENANTS herein contained shall bind, and the benefits andadvantages thereof shall also inure to the respective heirs, executors,administrators, successors and assigns of the parties hereto.  Whenever used, the singular number shallinclude the plural, the plural the singular and the use of any gender shallinclude all genders.

 

[SIGNATURE PAGE ONFOLLOWING PAGE]

 

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SIGNATURE PAGE TO

 

**MORTGAGEANDSECURITY AGREEMENTANDFIXTURE FINANCING STATEMENT**

 

IN WITNESS WHEREOF, the Mortgagor has signed and delivered this writingthe day and year first above written.

 
|   | UNITED WISCONSIN  GRAIN PRODUCERS, LLC |
|--------|----------------------------------------|
|   |                                   |
|   | */s/  Kevin Roche*                     |   |
|   | By Kevin Roche                         |
|   | Its President                          |

 
| STATE OF  WISCONSIN | )     |
|---------------------|-------|
|                | ) ss. |
| COUNTY OF  COLUMBIA | )     |

 

On this 26th day of February, 2004, before me, a NotaryPublic within and for said County, personally appeared Kevin Roche, to mepersonally known, who, being by me duly sworn did say that he is the Presidentof UNITED WISCONSIN GRAIN PRODUCERS, LLC, the limited liability company namedas Mortgagor in the foregoing instrument, and that he signed said instrument onbehalf of said limited liability company and as the free act and deed of saidlimited liability company.

 

 
|   | */s/  Cynthia K. Blau*                                                                                                            |
|--------|-----------------------------------------------------------------------------------------------------------------------------------|
|   | Print Name                                                                                                                        | Cynthia K. Blau |   |
|   | Notary  Public,                County,  Wisconsin |
|   | My Commission  [Expires]                                                                                                          | 11-27-05 |   |
|        |                                                                                                                                   |  |  |  |  |

 

This instrumentwas drafted by and after recording should be returned to:

 

JAMES W. FLORY

WILEY, COLBERT,NURSENG,  CRAY, HERRELL & FLORY, S.C.

21 SOUTH BARSTOWSTREET

P.O. BOX 629

EAU CLAIRE,  WI 54702-0629

 

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**EXHIBIT A**

 

**Legal Description**

 

Lot 1 of CertifiedSurvey Map No. 4050, recorded in the Columbia County Register of Deeds Office,In volume 28 of Certified Survey Maps, page 44, as Document No. 697073, in theTown of Randolph, Columbia County, Wisconsin, EXCEPT land described in Volume187 of Deeds, page 374.

 

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**EXHIBIT B**

 

**Permitted Encumbrances**

 

None.

 

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