Return to: Xxxxxxxx Xxxxx, Esq.
Husch Xxxxxxxxx Xxxxxxx LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
DEED OF TRUST
THIS DEED OF TRUST ("Deed of Trust"), is made this _____ day of April,
2008, by and among NEDAK Ethanol, LLC, ("Trustor" also known as "Borrower"), a
Nebraska limited liability company, whose mailing address is XX Xxx #000,
Xxxxxxxx, XX 00000, Lawyers Title Insurance Corporation, a Nebraska corporation
("Trustee"), whose mailing address is 00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, and Delta T Corporation ("Beneficiary" also known as
"Lender"), a Virginia corporation whose mailing address is 000 Xxxxxx Xxxx Xxxx,
Xxxxxxxxxxxx, XX 00000.
FOR VALUABLE CONSIDERATION, Trustor irrevocably transfers, conveys,
mortgages and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit
and security of Beneficiary, under and subject to the terms and conditions of
this Deed of Trust, the real property, located in the County of Xxxx, State of
Nebraska, and described as follows (the "Real Estate"):
See attached exhibit "A"
TOGETHER WITH, all buildings, fixtures and improvements upon the Real
Estate, whether now or hereafter existing, all rights-of-way, easements, rents,
issues, profits, income, leases, tenements, hereditaments, privileges and
appurtenances belonging, used or enjoyed in connection with the Real Estate, or
any part thereof (subject, however, to the right, power and authority of Trustor
to collect and apply such rents, issues, profits and income as they become due
and payable, so long as no default exists hereunder) and all proceeds of
conversion, voluntary or involuntary, of any of the foregoing into cash or
liquidated claims, including without limitation, proceeds of insurance and
condemnation awards, all of which collectively is hereunder referred to as the
"Trust Estate."
FOR THE PURPOSE OF SECURING:
Payment of indebtedness in the principal amount of FIVE MILLION DOLLARS
($5,000,000), as evidenced by that certain promissory note dated April __, 2008
(the "Note") with a maturity date as set forth therein, executed by Trustor,
which has been delivered and is payable to the order of Beneficiary, and which
by this reference is made part of this Deed of Trust.
This Deed of Trust, the Note, and any other instrument given to evidence or
further secure the payment and performance of any past, current or future
obligations secured hereby are referred to collectively as the "Loan
Instruments."
TO PROTECT THE SECURITY OF THIS DEED OF TRUST:
1. PAYMENT OF INDEBTEDNESS. Trustor shall pay when due the principal on the
Note, and all other charges, fees and all other sums as provided in the Loan
Instruments.
2. ACTIONS AFFECTING TRUST ESTATE. Trustor shall appear in and contest any
action or proceeding purporting to or which may in fact adversely affect title
to the Trust Estate or the security or priority hereof or the rights or powers
of Beneficiary or Trustee; and Trustor shall indemnify Trustee and Beneficiary
from all costs and expenses, including cost of evidence of title and attorneys'
fees, incurred by Trustee and Beneficiary in any such action or proceeding in
which Beneficiary or Trustee may appear.
Trustor shall pay all real estate taxes and assessments levied on the Real
Estate, including any tax levied on the debt secured hereby, when they become
due and payable and before they become delinquent. Trustor shall pay and
promptly discharge, at Trustor's cost and expense, all such liens, encumbrances
and charges imposed upon the Trust Estate, or any part thereof or interest
therein. If Trustor shall fail to discharge or pay promptly any such tax,
assessment, lien, encumbrance or charge, such failure shall be considered an
Event of Default and Beneficiary shall be entitled to all the remedies provided
under this Deed of Trust or available at law or equity. If Trustor shall fail to
discharge any such tax, assessment, lien, encumbrance or charge, then, in
addition to any other right or remedy of Beneficiary, Beneficiary may, but shall
not be obligated to, discharge the same, either by paying the amount claimed to
be due, or by procuring the discharge of such lien by depositing in court a bond
in the amount claimed or otherwise giving security for such claim, or in such
manner as is or may be prescribed by law. Any such payment shall be payable
immediately upon written demand and shall bear interest from the date of
disbursement until paid at the maximum amount allowed under state law.
The Trustor will promptly comply with all present and future laws,
ordinances, rules and regulations of any governmental authority affecting the
Trust Estate or any part thereof. This shall apply to any improvements upon the
Trust Estate as well as the operation of any business upon the Trust Estate.
3. EMINENT DOMAIN. Should the Trust Estate, or any part thereof or interest
therein, be taken or damaged by reason of any taking by right of eminent domain,
condemnation proceeding ("Condemnation"), or in any other manner including deed
in lieu of Condemnation, or should Trustor receive any notice or other
information regarding such proceeding, Trustor shall give prompt written notice
thereof to Beneficiary. All such compensation, awards, damages, rights or action
and proceeds awarded to Trustor (the "Proceeds") are hereby assigned to
Beneficiary, and Trustor agrees to execute such further assignments of the
Proceeds as Beneficiary or Trustee may require. The Proceeds shall, at the
option of the Trustor, be applied against the costs of restoring the Trust
Estate or against the unpaid principal balance of the Note.
4. REPRESENTATIONS. Trustor covenants and warrants with Beneficiary, its
successors and assigns, that Trustor owns the Trust Estate free from any prior
lien or encumbrance (except such permitted exceptions as expressly designated in
Exhibit "B" attached hereto), that this Deed of Trust is and will remain a valid
and enforceable first lien on the Trust Estate, that Trustor will preserve such
title and will forever warrant and defend the same to the Beneficiary and will
forever warrant and defend the validity and priority of the lien hereof against
the claims of all persons and claimants whomsoever. The foregoing warranties
shall survive the exercise of the power of sale as herein conferred, as well as
the foreclosure of the Deed of Trust, and shall run with the land. Trustor will
make such further assurance or assurances to perfect its title to the Trust
Estate as may be reasonably required by Beneficiary. Trustor hereby relinquishes
all right of dower and homestead in and to the Trust Estate.
5. TRUSTEE'S DUTIES. Trustor acknowledges that: (a) the duties and
obligations of Trustee shall be determined solely by the express provisions of
this Deed of Trust and Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth herein, and no implied
covenants or obligations shall be imposed upon Trustee; (b) no provision of this
Deed of Trust shall require Trustee to expend or risk its own funds, or
otherwise incur any financial obligation in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
grounds for believing that the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it; (c) Trustee may
consult with counsel of its own choosing and the advice of such counsel shall be
full and complete authorization and protection in the respect of any action
taken or suffered by it hereunder in good faith and in reliance thereon; (d)
Trustee shall not be
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liable for any action taken by it in good faith and reasonably believed by it to
be authorized or within the discretion or rights of powers conferred upon it by
this Deed of Trust.
6. APPOINTMENT OF SUCCESSOR TRUSTEE. Beneficiary may, from time to time, by
written instrument executed and acknowledged by Beneficiary, mailed to Trustor
and recorded in the County in which the Trust Estate is located, and by
otherwise complying with the provisions of the applicable law of the State of
Nebraska, substitute a successor or successors to the Trustee named herein or
acting hereunder.
7. SUCCESSORS AND ASSIGNS. This Deed of Trust applies to, inures to the
benefit of and binds all parties hereto, their heirs, legatees, devisees,
personal representatives, successors and assigns. The term "Beneficiary" shall
mean the owner and holder of the Note, whether or not specifically named as
Beneficiary herein.
8. INSPECTIONS. Beneficiary, or its agents, representatives or workmen are
authorized to enter at any reasonable time upon or in any part of the Trust
Estate for the purpose of inspecting the same and for the purpose of performing
any of the acts it is authorized to perform under the terms of the Loan
Instruments.
9. EVENTS OF DEFAULT. Any of the following events shall be deemed an Event
of Default under this Deed of Trust:
(a) Trustor shall have failed to make payment of principal or any
other sum secured by this Deed of Trust or required to be paid under the
terms hereof when due;
(b) There has occurred a breach of or default under any term,
covenant, agreement, condition, provision, representation or warranty
contained in any of the Loan Instruments;
(c) Trustor shall have sold, transferred, conveyed, assigned or
encumbered the Trust Estate or any part thereof or any interest therein,
whether outright, by deed, land contract, lease with purchase option,
mortgage, judgment, or otherwise, without the prior written consent of
Beneficiary; or
(d) The warranty of title as made herein, or any other representation
or warranty made by the Trustor in any financial statements or reports
submitted to Beneficiary shall be breached, false or materially misleading.
10. ACCELERATION UPON DEFAULT, ADDITIONAL REMEDIES. Should an Event of
Default occur, Beneficiary may declare all indebtedness secured hereby to be
immediately due and payable and the same shall thereupon become due and payable
without any presentment, demand, protest or notice of any kind. Thereafter
Beneficiary may:
(a) Either in person or by agent, with or without bringing any action
or proceeding, or by a receiver appointed by a Court and without regard to
the adequacy of its security, enter upon and take possession of the Trust
Estate, or any part thereof, in its own name or in the name of Trustee, and
do any acts which it deems necessary or desirable to preserve the value,
marketability or rentability of the Trust Estate, or any part thereof or
interest therein, increase the income therefrom or protect the security
hereof and with or without taking possession of the Trust Estate, xxx for
or otherwise collect the rents, issues and profits thereof, including those
past due and unpaid, and apply the same, less costs and expenses of
operation and collection, including attorney's fees, upon any indebtedness
secured hereby, all in such order as Beneficiary may determine. The
entering upon and taking possession of the Trust Estate, the collection of
such rents, issues and profits and the application thereof as described
above, shall not cure or waive any default or notice of default hereunder
or invalidate any act done in response to such default or pursuant to such
notice of default and, notwithstanding the continuance in possession of the
Trust Estate or the collection, receipt and application of rents, issues or
profits, Trustee or Beneficiary shall be entitled to exercise every right
provided for in any of the Loan Instruments or by law upon occurrence of
any Event of Default, including the right to exercise the Power of Sale;
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(b) Commence an action to foreclose this Deed of Trust as a mortgage,
to seek deficiency on the indebtedness after the foreclosure without any
limitation otherwise applicable under the Nebraska Trust Deeds Act, to
appoint a receiver, and to otherwise specifically enforce any of the
covenants or provisions hereof;
(c) Deliver to Trustee a written declaration of default and demand for
sale, and a written notice of default and election to cause Trustor's
interest in the Trust Estate to be sold under the Power of Sale contained
herein, which notice Trustee shall cause to be duly filed for record in the
appropriate Official Records of the County in which the Trust Estate is
located, all to the extent required by applicable law;
(d) Pay such sums as it deems necessary to protect the Trust Estate
and cure any default of the Trustor; and
(e) Exercise all rights and remedies available to it at law, in equity
or under the Nebraska Trust Deeds Act.
11. FORECLOSURE BY POWER OF SALE. Should Beneficiary elect to foreclose by
exercise of the Power of Sale herein contained, Beneficiary shall notify Trustee
and shall deposit with Trustee this Deed of Trust and the Note and such receipts
or other evidence of expenditures made and secured hereby as Trustee may
require.
(a) Upon receipt of such notice from Beneficiary, Trustee shall cause
to be recorded, published and delivered to Trustor such Notice of Default
and Notice of Sale as then required by law and by this Deed of Trust.
Trustee shall, without demand on Trustor, after such time as may then be
required by law and after recordation of such Notice of Default and after
Notice of Sale having been given as required by law, sell the Trust Estate
at the time and place of sale fixed by it in such Notice of Sale, either as
a whole, or in separate lots, parcels or items as Trustee shall deem
expedient, and in such order as it may determine, at public auction to the
highest bidder for cash in lawful money of the United States, or certified
check, payable at the time of sale. Trustee shall deliver to such purchaser
or purchasers thereof its good and sufficient trustee's deed conveying the
property so sold, but without any covenant or warranty, express or implied.
The recitals in such deed of any matters or facts shall be conclusive proof
of the truthfulness thereof. Any person, including, without limitation,
Trustor, Trustee or Beneficiary, may purchase at such sale. Trustor hereby
covenants to forever warrant and defend the title of such purchaser or
purchasers of any of the Trust Estate so conveyed as if Trustor had
conveyed the same to such purchaser(s) by general warranty deed.
(b) As may be permitted by law, after deducting all costs, fees and
expenses of Trustee and of this Trust incurred in connection with any such
default or sale or foreclosure or all of them, including attorney's fees
and costs of evidence of title in connection with sale, and a Trustee's
fee, Trustee shall apply the proceeds of sale to payment of (i) all sums
expended under the terms hereof, not then repaid, with accrued interest at
the default rate provided in the Note, (ii) all other sums then secured
hereby, and (iii) the remainder, if any, to the person or persons legally
entitled thereto. The Trustee's fee shall equal 2% of the outstanding
principal balance of the Note, plus attorney's fees incurred by the Trustee
in connection with performing its duties under this Deed of Trust.
(c) Trustee may in the manner provided by law postpone sale of all or
any portion of the Trust Estate.
12. REMEDIES NOT EXCLUSIVE. Trustee and Beneficiary, and each of them,
shall be entitled to enforce payment and performance of any indebtedness or
obligations secured hereby and to exercise all rights and powers under this Deed
of Trust or under any Loan Instrument or other agreement or any laws now or
hereafter in force, notwithstanding some or all of such indebtedness and
obligations secured hereby may now or hereafter be otherwise secured, whether by
mortgage, deed of trust, pledge, lien, assignment or otherwise. Neither the
acceptance of this Deed of Trust nor its enforcement, whether by court action or
pursuant to the power of sale or other powers herein contained, shall prejudice
or in any manner affect Trustee's or Beneficiary's right to realize
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upon or enforce any other security now or hereafter held by Trustee or
Beneficiary, it being agreed that Trustee and Beneficiary, and each of them,
shall be entitled to enforce this Deed of Trust and any other security now or
hereafter held by Beneficiary or Trustee in such order and manner as they or
either of them may in their absolute discretion determine. No remedy herein
conferred upon or reserved to Trustee or Beneficiary is intended to be exclusive
of any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. Every power or remedy
given by any of the Loan Instruments to Trustee or Beneficiary is independent
and either of them may pursue inconsistent remedies. Nothing herein shall be
construed as prohibiting Beneficiary from seeking a deficiency judgment against
the Trustor to the extent such action is permitted by law.
13. TRANSFER OF THE PROPERTY; ASSUMPTION. If all or any part of the Trust
Estate or interest therein is sold, transferred or otherwise conveyed by
Trustor, including any transfer by operation of law, without Beneficiary's prior
written consent, excluding:
(a) A transfer by devise or descent upon the death of the Trustor; or
(b) The grant of any leasehold interest not otherwise contrary to the
terms hereof;
such action shall give rise to a right of acceleration under this Deed of Trust
and the Loan Instruments and Beneficiary may, at Beneficiary's option, declare
all sums secured by this Deed of Trust to be immediately due and payable, or
cause the Trustee to file a notice of default if all such sums are not paid
within thirty (30) days of notice of acceleration. Beneficiary shall have waived
such option to accelerate if, prior to the sale, transfer or conveyance,
Beneficiary and the person to whom the property is to be sold or transferred
reach agreement in writing that the credit of such person is satisfactory to
Beneficiary. This provision shall not be construed as imposing on Beneficiary an
obligation or duty to reach such an agreement or to give consent to a sale,
transfer or other conveyance, and Beneficiary shall have the right to withhold
approval for any reason in Beneficiary's sole discretion.
14. REQUEST FOR NOTICE. Trustor hereby requests a copy of any notice of
default or notice of sale hereunder be mailed to it at the address set forth in
the first paragraph of this Deed of Trust.
15. GOVERNING LAW AND NON-WAIVER. This Deed of Trust shall be governed by
the laws of the State of Nebraska. In the event that any provision or clause of
any of the Loan Instruments conflicts with applicable laws, such conflicts shall
not affect other provisions of such Loan Instruments which can be given effect
without the conflicting provision, and to this end the provisions of the Loan
Instruments are declared to be severable. This instrument can be waived,
changed, discharged or terminated only by an instrument in writing signed by the
party against whom enforcement of any waiver, change, discharge or termination
is sought.
The acceptance by Beneficiary of any sum after the same is due shall not
constitute a waiver of the right either to request prompt payment, when due, of
all other sums hereby secured or to declare a default as herein provided. The
acceptance by Beneficiary of any sum in an amount less than the sum then due
shall be deemed an acceptance on account only and upon condition that it shall
not constitute a waiver of the obligation of Trustor to timely pay the entire
sum then due, and Trustor's failure to pay the entire sum then due shall be and
continue to be a default notwithstanding such acceptance of such amount on
account, as aforesaid, and Beneficiary or Trustee shall be at all times
thereafter and until the entire sum then due shall have been paid, and
notwithstanding the acceptance by Beneficiary thereafter of further sums on
account, or otherwise, entitled to exercise all rights in this instrument
conferred upon them, or either of them, upon the occurrence of a default, and
the right to proceed with a sale under any notice of default and notice of sale
shall in no way be impaired, whether any of such amounts are received prior or
subsequent to such notice. Consent by Beneficiary to any transaction or action
of Trustor which is subject to consent or approval of Beneficiary hereunder
shall not be deemed a waiver of the right to require such consent or approval to
future or successive transactions or actions.
16. RECONVEYANCE BY TRUSTEE. Upon satisfaction of all of Trustor's
obligations under the Loan Instruments, and upon written request of Beneficiary
stating that all sums secured hereby have been paid, and upon surrender of this
Deed of Trust and the Note to Trustee for cancellation and upon payment by
Trustor of Trustee's fees, Trustee shall reconvey to Trustor, or the person or
persons legally entitled thereto, without warranty,
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any portion of the Trust Estate then held hereunder. The recitals in such
reconveyance of any matters or facts shall be conclusive proof of the
truthfulness thereof. The grantee in any reconveyance may be described as "the
person or persons legally entitled thereto."
17. NOTICES. Whenever Beneficiary, Trustor or Trustee shall desire to give
or serve any notice, demand, request or other communication with respect to this
Deed of Trust, each such notice, demand, request or other communication shall be
in writing and shall be effective only if the same is delivered by personal
service or mailed by certified mail, postage prepaid, addressed to the address
set forth at the beginning of this Deed of Trust or at such other address as a
party may designate for itself by notice to the other parties hereto given in
like manner. If Trustor consists of more than one person, one notice sent to
both Trustors at the address designated for them in this Deed of Trust shall be
deemed to be good and sufficient notice given to both Trustors, regardless of
whether either of them subsequently asserts or proves that it did not actually
receive such notice.
18. ADDITIONAL PROVISIONS.
a. This Deed of Trust shall at all times be subordinate to any
indebtedness concerning the Trust Estate granted to AgCountry
(formerly known as "Farm Credit Services of Grand Forks"), and
any deeds of trust, mortgages, security instruments, or other
loan instruments granted therewith.
b. Trustor shall maintain fire, hazard, personal liability and any
other insurance reasonably requested by Beneficiary upon the Real
Estate. Trustor shall promptly pay all premiums for such
insurance when due. Trustor shall not cancel such insurance
without at least ten (10) days written notice to Beneficiary
[signatures and acknowledgments appear on following page]
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IN WITNESS WHEREOF, Borrower has executed this Deed of Trust on the date first
above written.
BORROWER:
NEDAK Ethanol, LLC
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
---------------------------------
Its: Pres & Gen Mngr.
---------------------------------
STATE OF NEBRASKA )
) SS.
COUNTY OF XXXX ))
The foregoing Deed of Trust was acknowledged before me on this ___ day
of April, 2008 by Xxxxxx Xxxxxxxxx, the President & Gen. Mngr. of NEDAK
Ethanol, LLC, on behalf of said limited liability company.
/s/ Xxxxx. X. Xxxxxxx
----------------------------------
Notary Public
My commission expires:
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EXHIBIT "A"
Beginning at the southwest corner of the NE 1/4 of Section 4, T29N, R14W of
the 6th P.M. in Xxxx County, Nebraska, and assuming the west line of said NE 1/4
has a bearing of S 00(degree)04'33" E, thence N 89(degree)33'18"E along the
south line of said NE 1/4, 1,312.51 feet; thence N 00(degree)59'49"W, 694.43
feet; thence N 89(degree)00'11" E, 539.97 feet; thence N 00(degree)59'49" W,
635.59 feet, to the southwesterly right-of-way line of the Cowboy Trail; thence
N 51(degree)52'31" W along said southwest right-of-way, 732.65 feet; thence S
38(degree)07'29" W, 200.00 feet; thence N 51(degree)52'31" W, 200.00 feet;
thence N 38(degree)07'29" E, 200.00 feet, to said southwest right-of-way line of
Cowboy Trail; thence S 89(degree)54'11" W, 1,073.08 feet, to a point 25.0 feet
east of said west line of the NE 1/4 of Section 4; thence N 00(degree)04'33" W,
parallel with said west line, 776.67 feet, to the north line of said NE 1/4;
thence S 89(degree)16'37" W along said north line, 25.00 feet, to the N 1/4
corner of said Section 4; thence S 89(degree)32'36" W along the north line of
the NW 1/4 of said Section 4, 35.05 feet; thence S 00(degree)04'33" E, parallel
with said west line of the NE 1/4, 2,699.74 feet, to the south line of said NW
1/4; thence N 89(degree)32'57" E along said south line, 35.05 feet, to the point
of beginning
And a tract of land located in the NW 1/4 of Section 4, T29N, R14W of the
6th P.M. in Xxxx County, Nebraska, described as follows:
Beginning at a point on the south line of said NW 1/4 and 35.05 feet west
of the southeast corner of said NW 1/4, and assuming the south line to have a
bearing of S 89(degree)30'01" W; thence N 00(degree)04'33" W and parallel with
the east line of said NW 1/4, 200 feet; thence S 89(degree)30'01" W and parallel
with the south line of the said NW 1/4, 900 feet; thence S 00(degree)04'33" E to
a point on the south line of said NW 1/4, 200 feet; thence N 89(degree)30'01" E
on the south line of said NW 1/4, 900 feet, to the point of beginning.
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EXHIBIT "B"
Permitted Exceptions
1. Real estate taxes and assessments for the years 2007, and subsequent years
not yet due and payable.
2. Right of Way Permit and Easement to Niobrara Valley Electric Membership
Corporation filed December 29, 1977 in book 54, Page 659 of the Miscellaneous
records of Xxxx County, Nebraska, granting right of way to construct, operate
and maintain electric transmission equipment located on property described as
the North Half of Section 4-29-14 and a transmission line to run approximately
1/2 mile East & West on approximately the 34 foot line South of the North
Section line of Said Section.
3. Right of Way Permit and Easement to Niobrara Valley Electric Membership
Corporation filed November 7, 1994 in Book 72, Page 140 of the records of said
county granting the right of way for construction, operation and maintenance of
electric transmission equipment located on the Northeast Quarter of Section
4-29-14.
4. Agreement for Electric Service to Niobrara Valley Electric Membership
Corporation recorded November 7, 1994 in Book 72, Page 141, making available
electric service to operate the irrigation system located on property described
as the Northeast Quarter of Section 4-29-14.
5. Permanent Road Access Easement from NEDAK Ethanol, LLC to Nebraska Public
Power District dated January 23, 2007 recorded 12-12-07 in Book 84, Page 707.
6. The following matters disclosed in that certain Survey made by Xxxxxxx &
Associates Inc. dated February 9, 2007 as Job No. 123.086L.
Gravel drive along the west line of the land,
Power line along the west line of the land, and
Telephone equipment along the south line of the land.
7. Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture
Financing Statement made and entered into as of February 14, 2007 by and between
NEDAK Ethanol, LLC to and in favor of LAWYERS TITLE INSURANCE CORPORATION, a
Nebraska corporation, as Trustee, for the benefit of FARM CREDIT SERVICES OF
GRAND FORKS, FLCA filed 2-16-2007 in Book 318, at Page 48 of the records of Xxxx
County, Nebraska.
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