PREPARED BY AND UPON RECORDATION RETURN TO: Bryan Cave LLP
PREPARED
BY AND UPON
RECORDATION
RETURN TO:
Xxxxx
Xxxx LLP
0000
Xxxx Xxxxxx, Xxxxx 0000
Kansas
City, Missouri 64105
Attention:
Xxxxxx X. Xxx
(space
above reserved for Recorder’s use)
MISSOURI
LEASEHOLD DEED OF TRUST,
ASSIGNMENT
OF RENTS AND SECURITY AGREEMENT
a
Missouri limited liability company,
as
Grantor
to
XXXXXX
X. XXXXXXX,
as
Trustee
for
the benefit of
STATE
BANK OF XXXXXX,
as
Grantee (Agent)
Dated
as of June 5, 2008
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Location:
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Xxxxxxx
County, Missouri
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Grantee’s
|
|
|
Address:
|
000
Xxxx Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx X.
Xxxxxxx
|
|
Legal
|
|
|
Description:
|
See
Exhibit A attached
hereto
|
THIS
AGREEMENT SECURES AMONG OTHER THINGS FUTURE ADVANCES AND OBLIGATIONS AND IS
TO
BE GOVERNED BY THE PROVISIONS OF SECTION 443.055 OF THE MISSOURI REVISED
STATUTES. THE TOTAL PRINCIPAL AMOUNT OF OBLIGATIONS THAT MAY BE SECURED
HEREUNDER IS $3,590,000.
MISSOURI
LEASEHOLD DEED OF TRUST,
ASSIGNMENT
OF RENTS AND
SECURITY
AGREEMENT
THIS
MISSOURI LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
(“Deed
of Trust”)
is
made and executed as of the second day of June, 2008, by SHOW
ME ETHANOL, LLC,
a
Missouri limited liability company, whose address is 000 Xxxx Xxxx, X.X. Box
158, Richmond, Missouri 64085 (“Grantor”),
XXXXXX
X. XXXXXXX,
a
Missouri resident, with an address of c/o Xxxxx Xxxx LLP, 0000 Xxxx Xxxxxx,
Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000 (the
“Trustee”),
for
the benefit of STATE
BANK OF SLATER,
with an
address of 000 Xxxx Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx X.
Xxxxxxx, as agent (in such capacities and together with any successors in such
capacities, “Agent”)
for
the lending institutions (collectively, whether one or more, the “Lender”),
from
time to time a party to the Loan and Security Agreement (as defined
below).
A. Debt.
Grantor
has executed various 9% Subordinated Secured Promissory Notes Due June 4, 2010
(collectively, whether one or more, the “Note”)
evidencing an aggregate loan in the amount of $3,590,000.00 by the Lender to
Grantor, pursuant to the terms contained in that certain Loan and Security
Agreement, dated June 5, 2008 (“Loan
and Security Agreement”).
Each
Note is more fully described on Exhibit
B
attached
hereto and incorporated herein. A condition to such loan is the granting of
this
Deed of Trust by Grantor as security for the obligations of Grantor under the
Note. The Note, this Deed of Trust, the Loan and Security Agreement and all
other instruments and documents evidencing, securing or relating to the
indebtedness evidenced by the Note are referred to herein as the “Loan
Documents.”
The
execution and delivery of the Note, this Deed of Trust and the other Loan
Documents to which Grantor is a party is a condition precedent to Lender making
the loans to Grantor evidenced by the Note.
X. Xxxxx.
Grantor, in consideration of the debt and trust herein described, and the sum
of
Ten Dollars ($10.00) and other good and valuable consideration to it paid by
the
Lender and Agent, the receipt and sufficiency of which are hereby acknowledged,
does by these presents GRANT,
BARGAIN AND SELL, CONVEY AND CONFIRM unto
the
Trustee all of Grantor’s right, title and interest in that certain leasehold
estate which is evidenced by that certain Lease Agreement, by and between
Xxxxxxx County, Missouri, a third class township and political subdivision
of
the State of Missouri, as grantor/lessor thereunder, and Grantor, as
grantee/lessee thereunder, (collectively, the “Lease”),
which
affects the property located in Xxxxxxx County, Missouri, whether now owned
or
acquired in the future, and described on Exhibit
A
attached
to and incorporated into this Deed of Trust by this reference, for the use
and
benefit of Agent.
TOGETHER
WITH all
the
improvements now or in the future erected on the property, and all tenements,
hereditaments and appurtenances belonging or appertaining to such property
and
improvements, all fixtures, furnishings, equipment, appliances, machinery and
other personal property now or in the future located on or used in connection
with such property and all easements, leases, rents, profits, insurance and
condemnation proceeds, royalties, mineral, oil and gas rights and profits,
water
rights and water stock now or in the future becoming a part of or relating
to
such property, and all replacements, substitutions, additions to and proceeds
and products of the foregoing. All of the property, real, personal or mixed,
described in this paragraph is referred to in this Deed of Trust as the
“Mortgaged
Property.”
C. TO
HAVE AND TO HOLD the
Mortgaged Property unto the Trustee, and its successors and assigns, in
accordance with the provisions contained herein, for the use and benefit of
Agent.
D. NOW,
THEREFORE,
if
Grantor pays and performs its obligations under the Note and the other Loan
Documents and complies with each and every agreement, condition and covenant
contained and set forth in this Deed of Trust, the Note and all related
documents, then this Deed of Trust will be released, without warranty, at the
request and cost of Grantor.
E. Secured
Obligations.
This
Deed of Trust secures to Agent: (a) the repayment of all obligations evidenced
by the Note, including interest; (b) the payment of all other sums now or in
the
future advanced by Xxxxxx and Agent under the Note, this Deed of Trust or the
other Loan Documents, and the performance of all future obligations of Grantor
to Lender and Agent under the Loan Documents, provided that at no time will
the
total principal amount secured by this Deed of Trust, not including sums
advanced to protect the security of this Deed of Trust, or for any other
purposes specified in Section 443.055 of the Revised Statutes of Missouri,
as
amended, exceed the principal sum stated on the face of this Deed of Trust;
and
(c) the payment and performance of Grantor’s other covenants, agreements and
obligations under the Note, this Deed of Trust and under the other Loan
Documents (all referred to as the “Secured
Obligations”).
F. Representations,
Covenants and Warranties.
Grantor
represents, covenants, and warrants:
(a) that
the
Lease is in full force and effect and has not been modified or amended in any
manner whatsoever;
(b) that
there are no defaults under the Lease, and no event has occurred, that, with
the
giving of notice, the passage of time, or both, would constitute a default
under
the Lease;
(c) that
all
rents, additional rents, and other sums due and payable under the Lease have
been paid in full to the extent they were payable before the date of this Deed
of Trust;
(d) that
neither Grantor nor the landlord under the Lease has commenced any action or
given or received any notice for the purpose of terminating the
Lease;
(e) that
the
interest of the tenant under the Lease is vested in the Grantor;
(f) the
quiet
and peaceful possession of Xxxxxx and Agent;
(g) that
the
Grantor will defend the leasehold estate created by the Lease for the entire
remainder of the term set forth in the Lease, against all and every person
or
persons lawfully claiming, or who may claim the same or any part of the Lease,
subject only to the payment of the rents reserved in the Lease and to the
performance and observance of all the terms, covenants, conditions and
warranties of the Lease, subject in each case to the permitted encumbrances
(the
“Permitted
Encumbrances”)
set
forth on Exhibit
B.
2
G. Assignment
of Leases and Rents.
Grantor
hereby assigns to Agent all leases and other agreements, written or oral, now
in
existence or hereafter arising for the use or occupancy of all or any portion
of
the Mortgaged Property, and all the rents, issues, and profits of all or any
part of the Mortgaged Property and all funds received by Grantor for any use,
sale, or lease of all or any part of the Mortgaged Property, as further security
for the payment and performance of the Secured Obligations, and Grantor grants
to Agent the right to enter upon and to take possession of the Mortgaged
Property and every part thereof for the purpose of collecting the same and
to
let the Mortgaged Property or any part thereof, and to apply the rents, issues,
and profits, after payment of all necessary charges and expenses, on account
of
the Loan Documents. This assignment and grant will continue in effect until
this
Deed of Trust is released. Notwithstanding the foregoing, Grantor will have
the
right, under a license now granted by Agent to Grantor, to collect and receive
said rents, issues, and profits until the occurrence of an Event of Default
(as
defined below); and Grantor agrees to use such rents, issues, and profits in
payment of principal, interest and other obligations becoming due under the
Loan
Documents and in payment of taxes, assessments, sewer rates, water rents, and
carrying charges becoming due against the Mortgaged Property, but such right
of
Grantor will be revoked automatically upon the occurrence of an Event of
Default. Grantor will not, without the written consent of Agent, receive or
collect rent from any tenant of all or any part of the Mortgaged Property for
a
period of more than one month in advance, and if an Event of Default occurs,
Grantor will pay monthly in advance to Agent, or to any receiver appointed
to
collect such rents, issues, and profits, the higher of the fair and reasonable
rental value or the rent reserved in any written lease for the use and
occupation of the Mortgaged Property or of such part of the Mortgaged Property
as may be in the possession of Grantor, and upon default in any such payment
will, at the option of Agent, vacate and surrender the possession of the
Mortgaged Property to Agent or to such receiver, and if Grantor fails to do
so,
Grantor may be evicted by summary proceedings. Upon demand, Grantor will execute
and deliver to Agent such further assignments and other documents and
instruments as Agent may deem advisable to carry out or evidence the assignment
set forth in this section.
H. Security
Agreement.
This
Deed of Trust, in addition to being a lien on real estate, also is a security
agreement by and between Grantor, as debtor, and Agent, as secured party, with
respect to all of the Mortgaged Property which is personal property (the
“Personal
Property”),
and
this Deed of Trust creates and grants to Agent a first lien and security
interest in all Personal Property (subject only to the Permitted Encumbrances)
until the Secured Obligations are paid in full. Grantor hereby grants to Agent
a
security interest in all of the Personal Property as security for the payment
and performance of the Secured Obligations. Upon the occurrence of any Event
of
Default, Agent will have all the rights and remedies of a secured party under
the Uniform Commercial Code and any other applicable laws. This Deed of Trust
will also constitute a Uniform Commercial Code financing statement for purposes
of perfecting Agent’s interest in the Personal Property and fixtures described
herein.
GRANTOR
AND AGENT FURTHER COVENANT AND AGREE AS FOLLOWS:
1. Payment
and Performance of Obligations.
Grantor
must promptly pay and perform when due all of the Secured
Obligations.
2. Claims
Against Mortgaged Property.
Grantor
will pay, from time to time when the same become due, all claims and demands
of
mechanics, materialmen, laborers, and others which, if unpaid, might result
in,
or permit the creation of, a lien on all or any part of the Mortgaged Property,
whether prior or subordinate to this Deed of Trust, or on the revenues, rents,
issues, income, and profits arising from the Mortgaged Property, and in general
will do or cause to be done everything necessary so that the priority of this
Deed of Trust will be fully preserved, at the cost of Grantor, without expense
to Lender or Agent. Agent at its option may be subrogated for further security
to the lien of any prior encumbrance, mechanic’s lien, or vendor’s lien on the
Mortgaged Property paid out of the proceeds of the Note, even though the same
be
released of record.
3. Reserved.
3
4. Preservation
and Maintenance of Mortgaged Property.
Grantor
covenants and agrees not to permit or commit any waste on or of the Mortgaged
Property and to maintain the Mortgaged Property at all times in a state of
good
repair and condition; to comply with, or cause to be complied with, all
statutes, ordinances, and requirements of any governmental or other authority
relating to the Mortgaged Property; and to do or permit to be done to the
Mortgaged Property nothing that will alter or change the use and character
of
the Mortgaged Property or in any way impair or weaken the security of this
Deed
of Trust or otherwise diminish the value of the Mortgaged Property. In case
of
the refusal, neglect, or inability of Grantor to repair and maintain the
Mortgaged Property, Agent may, at its option, make such repairs or cause repairs
to be made, and advance money to do so.
5. Taxes
and Public Charges.
Grantor
will pay and discharge, before delinquency, all taxes (including real and
personal property taxes and income, franchise, withholding, profits, and gross
receipts taxes); all general and special assessments, levies, permits,
inspection, and license fees; all water and sewer rents and charges; and all
other public charges, whether of a like or different nature, imposed upon or
assessed against Grantor or all or any part of the Mortgaged Property or upon
the revenues, rents, issues, income, and profits of the Mortgaged Property
or
arising in respect of the occupancy, use, or possession of the Mortgaged
Property. Grantor will, upon the request of Agent, deliver to Agent receipts
evidencing the payment of all such taxes, assessments, and other public
charges.
6. Insurance.
(a) Grantor
agrees to maintain in force at all times (i) comprehensive, general liability
insurance, including premises, operations, and products liability, with limits
and deductibles satisfactory to Agent; and (ii) “all risk” property insurance,
including, without limitation, fire, windstorm, explosion, such other risks
usually insured against by owners of like properties, and such other coverages
as Agent may from time to time require on the Mortgaged Property, in an amount
equal to the full replacement cost of the portion of the Mortgaged Property
constituting improvements and Personal Property and must be sufficient to
prevent the application of coinsurance provisions, and with only such
deductibles as Agent may approve. If any of the Mortgaged Property is designated
as a flood prone or a flood risk area, as defined by the Flood Disaster
Protection Act of 1973, as amended, Grantor will maintain flood insurance in
an
amount and with such deductibles to be determined by Agent from time to time,
and also must comply with any additional requirements of the National Flood
Insurance Program as set forth in said Act. Grantor must maintain in force
at
all times workers’ compensation insurance respecting all employees of Grantor as
required by law.
(b) All
such
insurance must be written by companies, on forms and with endorsements all
satisfactory to Agent, all with satisfactory loss-payable and standard
non-contribution mortgagee clauses attached in favor of Agent (or, in case
of a
foreclosure sale, in favor of the owner of the certificate of sale). Grantor
must promptly deliver to Agent a certificate of insurance on all policies and
endorsements, and all renewals. All such policies must provide for, among other
things, thirty (30) days’ prior written notice to Agent of their expiration or
any cancellation or modification. Not less than ten (10) days prior to the
expiration of any such policy, a certified copy of an appropriate renewal policy
must be delivered to Agent.
7. Escrows.
Upon an
Event of Default, Agent may require that a sum equal to 1/12th
of the
total estimated amount of the current year’s taxes and assessments against the
Mortgaged Property and estimated insurance premiums for insurance coverages
required to be provided by Grantor be paid monthly in advance to Agent on the
first day of each month. If the fund created by such payments exceeds the actual
amount of taxes, assessments and premiums, the excess will be credited to
Grantor and applied to future taxes, assessments and premiums, or to interest
or
principal, as Agent may elect. The waiving of such monthly payments at any
time
will not bar Agent from later requiring Grantor to make such payments. No
interest will be paid by Agent on any of such funds. The funds provided for
in
this Section are solely for the added protection of Agent and entail no
responsibility on Agent’s part beyond the allowing of due credit, without
interest, for the sums actually received by it. Upon any assignment of this
Deed
of Trust by Agent, any funds on hand will be turned over to the assignee and
any
responsibility of Agent with respect to such funds will
terminate.
4
8. Condemnation.
If all
or any part of the Mortgaged Property is taken or damaged by the exercise of
the
power of eminent domain, Grantor may contest the same in good faith so long
as
Grantor is not in default under any of the Loan Documents, but the award for
any
property so taken is hereby assigned to Agent, and Agent, upon such award
becoming final, is authorized, in the name of Grantor or Agent, as appropriate,
to execute and deliver acquittances for, and release of, any such award and
to
collect and apply the proceeds, after the payment of all of Agent’s and Xxxxxx’s
expenses in connection with such proceedings (including attorneys’ fees), to the
payment of the Secured Obligations (such application to be in such order as
Agent may elect), and the remainder, if any, will be paid to
Grantor.
9. Casualty
Loss.
If any
of the Mortgaged Property is destroyed or damaged by fire or any other cause,
whether insured or uninsured, and if such damage is Substantial Damage, Grantor
will, at Agent’s option, either (i) restore or rebuild the damaged Mortgaged
Property or (ii) apply any insurance or other proceeds to the payment of the
Secured Obligations. If any damage occurs that is not Substantial Damage,
Grantor must promptly restore or rebuild the damaged Mortgaged Property so
that
it is at least of equal value and substantially the same character as prior
to
the damage or destruction. If Agent elects to require Grantor to rebuild the
damaged Mortgaged Property or if such damage is not Substantial Damage, then
Agent will make any insurance or other proceeds that have been paid to Agent
available to Grantor in accordance with such reasonable disbursement procedures
as Agent may impose. Any surplus that remains out of the insurance proceeds
after payment of such cost of rebuilding or restoration may, at the option
of
Agent, (i) be applied on account of the Secured Obligations or such portion
as
Agent will determine, in such order of maturity as Agent may determine, but
without any change in the amount of the monthly payments due under the Note,
or
(ii) be paid to Grantor. If the Mortgaged Property is acquired by Agent or,
as
the result of a foreclosure, by anyone else, Grantor’s right to any insurance
policies and proceeds resulting from damage to the Mortgaged Property prior
to
the acquisition will pass to Agent or the other party, as the case may
be.
10. Protection
of Agent’s Security.
Agent
may, at its option, and without waiving its right to accelerate the Secured
Obligations and to foreclose this Deed of Trust, pay either before or after
default any or all of those certain obligations required by the terms of this
Deed of Trust to be paid by Grantor for the protection of the Deed of Trust
security or for the collection of any of the Secured Obligations or may bring
or
intervene in any legal proceeding for the protection of the Deed of Trust
security. All sums so advanced, paid or expended by Agent or Lender (including,
to the extent permitted by law, attorneys’ fees and expenses) will become part
of the Secured Obligations, and will bear interest from the date thereof at
the
interest rates set forth in the Note, and become an integral part of the Secured
Obligations, subject in all respects to the terms, conditions, and covenants
of
the Loan Documents, as fully and to the same extent as though a part of the
original indebtedness evidenced by the Note and secured by this Deed of Trust,
except that such sums will be repaid to Agent upon demand.
11. Inspection.
Agent
or its agent may enter upon and inspect the Mortgaged Property at reasonable
times upon reasonable notice.
12. Grantor
Not Released; Forbearance by Agent Not a Waiver.
Extension of the time for payment of the sums secured by this Deed of Trust
granted by Agent to Grantor or any successor in interest will not operate to
release Grantor or Xxxxxxx’s successors in interest from liability under this
Deed of Trust. Agent will not be required to commence proceedings against any
successor in interest or refuse to extend time for payment of the sums secured
by this Deed of Trust by reason of any demand made by the original Grantor
or
Xxxxxxx’s successors in interest. Any forbearance by Agent in exercising any
right or remedy will not be a waiver of or preclude the exercise of any right
or
remedy.
5
13. Loan
Charges.
In no
event will the total of all amounts payable under the Loan Documents, whether
of
interest or of other charges which may or might be characterized as interest,
exceed the maximum rate or amount permitted to be charged under applicable
law.
If Agent receives any payment that is or would be in excess of the interest
or
other charge permitted to be charged under applicable law, the portion of the
payment which is in excess of the permissible amount will have been, and will
be
deemed to have been, a payment in reduction of the principal balance of the
Note, or, if such portions exceed the unpaid principal balances, the excess
will
be refunded to Grantor.
14. Reserved.
15. Notices.
All
notices or other communications required or permitted to be given pursuant
to
the provisions of this Deed of Trust will be deemed to have been duly given
or
made: if by hand, immediately upon delivery; if by telex, immediately upon
confirmation of receipt; if by express mail or any other public, semi-public,
or
private overnight delivery service, one (1) day after dispatch; and if mailed
by
certified mail, postage prepaid and return receipt requested, three (3) days
after deposit in the mail. All such notices and communications will be given
to
the parties at their respective addresses set forth in this Deed of Trust,
or to
such other addresses as either party may designate by notice in accordance
with
the terms of this section.
16. Governing
Law; Severability; Conformity.
This
Deed of Trust will be governed by the law of Missouri (the “State”).
In
the event that any provision or clause of the Loan Documents conflicts with
applicable law, such conflict will not affect other provisions of the Loan
Documents which can be given effect without the conflicting provision. To this
end, the provisions of the Loan Documents are declared to be severable. To
the
extent Missouri law may now or hereafter impose requirements or set limitations
on Xxxxxx’s or Agent’s rights under the Loan Documents, the Loan Documents will
be conformed to comply in all respects to the law as it may from time to time
be
amended.
17. Events
of Default.
Each of
the following will constitute an “Event of Default” under this Deed of Trust:
(a) failure of Grantor to make any payment of principal or interest or any
other
amount due under the Loan Documents, when the same become due and payable,
whether at maturity, or by acceleration as provided in the Loan Documents;
(b)
failure of Grantor to make any payment when due (including any applicable notice
or grace periods) in accordance with the terms of any prior or subordinate
mortgage or deed of trust or the notes secured thereby, or failure to perform
any of the other terms, covenants and conditions of any prior or subordinate
mortgage or deed of trust, or the notes secured thereby, on or before the date
for such performance (including any applicable cure or grace periods); (c)
failure of Grantor to observe or perform any nonmonetary covenant or agreement
contained in the Loan Documents; (d) failure of Grantor to observe or perform
any other obligation to, or covenant or agreement with Agent on or before the
date for such performance (including any applicable cure or grace periods);
(e)
appointment of a receiver, trustee or liquidator (or other similar official)
of
Grantor or of the Mortgaged Property or any portion thereof in any proceeding
or
by any federal or state officer or agency and such appointee is not discharged
within sixty (60) days after such appointment or Grantor’s consent to such
appointment; (f) Grantor files a petition in bankruptcy or for reorganization
or
for an arrangement under state law, now or hereafter in effect, or Grantor
makes
an assignment for the benefit of its creditors, or admits in writing its
inability to pay its debts generally as they become due, or suspends payment
of
obligations or takes any action in furtherance of any of the foregoing; (g)
a
petition or claim of involuntary bankruptcy is filed against Grantor under
the
Bankruptcy Code or any similar federal or state law, now or hereafter in effect,
and (1) Grantor consents to such filing, or (2) fails to obtain a final order
dismissing such petition or claim within thirty (30) days after the such filing;
or (h) Grantor gives any notice pursuant to Section 443.055 of the Revised
Statutes of Missouri, as amended, or otherwise by which Grantor elects to
terminate the operation of this Deed of Trust as security for future advances
or
future obligations made or incurred after the date Agent receives such notice,
or Grantor takes any other action for the purpose of limiting or attempting
to
limit the operation of this Deed of Trust as such security. Grantor
acknowledges, represents and warrants that this Deed of Trust is collateral
for
a loan given in a business transaction, as contemplated by Section 443.055(10)
of the Revised Statutes of Missouri, as amended.
6
18. Remedies.
At any
time after an Event of Default has occurred, the whole of the obligations set
forth in the Loan and Security Agreement and the other Secured Obligations
will
become due at Agent’s option immediately or at any time thereafter at the
continuing option of Agent, and this Deed of Trust will remain in force, and
Agent may exercise any right, power or remedy permitted to it by law or by
contract, and in particular, without limiting the generality of the foregoing,
Agent will have the absolute right, at its option, to pursue one or more of
the
following remedies:
(a) Agent
will be entitled, immediately or thereafter, without notice or demand, to the
extent permitted by the laws of the State, (i) to institute suit to enforce
the
rights of Agent and (ii) to enforce, at Agent’s continuing option, payment of
all Secured Obligations by action to foreclose this Deed of Trust, either or
both, concurrently or otherwise; and one action or suit will not xxxxx or be
a
bar to or waiver of the Agent’s right to institute or maintain the other,
provided that Agent will have only one payment and satisfaction of the Secured
Obligations.
(b) Agent
will have the right from time to time to take action to recover any sums,
whether interest, principal or any installment of either, or any other sums
required to be paid under the Loan Documents, as the same become due, without
regard to whether or not the principal sum secured or any other Secured
Obligations will be due, and without prejudice to the right of Agent thereafter
to bring an action of foreclosure, or any other action, or commence foreclosure
proceedings under the power of sale, for a default or Event of Default by
Grantor existing at the time such earlier action was commenced.
(c) The
Trustee may proceed to sell all or any part of the Mortgaged Property, at public
vendue, to the highest bidder, at the customary place in the county in which
the
Mortgaged Property is located, for cash, first giving the public notice required
by law of the time, terms and place of sale, and of the property to be sold;
and
upon such sale will execute and deliver a deed of conveyance of the property
sold to the purchaser or purchasers of the property, and any statement or
recital of fact in such deed in relation to the nonpayment of indebtedness
hereby secured, existence of the indebtedness so secured, notice of
advertisement, sale, receipt of money, and the happening of any of the events
by
which any successor trustee became successor as herein provided, will be prima
facie evidence of the truth of such statement or recital; and the Trustee will
receive the proceeds of such sale, and the Trustee covenants faithfully to
perform the trust herein created. Until a sale is held hereunder, the Trustee
hereby lets the Mortgaged Property to Grantor upon the following terms and
conditions: Grantor, and any and all persons claiming or possessing the
Mortgaged Property, and any part thereof, by, through, or under it will pay
rent
therefor at the rate of one cent per month, payable monthly upon demand and
will
surrender peaceable possession of the Mortgaged Property and any and every
part
thereof to the Trustee, any of its successors or assigns, or purchasers thereof,
without notice or demand therefor, upon the occurrence of any Event of
Default.
(d) Any
court
of competent jurisdiction may, at any time or times, either before or after
a
foreclosure sale, without notice and without requiring bond, without regard
to
the solvency or insolvency of any person liable for payment of the Secured
Obligations, and without regard to whether Agent has exercised or is exercising
any other available remedy, appoint, as a matter of strict right and as an
admitted equity, a receiver for the benefit of Agent, with power to collect
the
rents, issues, and profits of the Mortgaged Property, due and to become due.
These provisions for the appointment of a receiver and assignment of rents
are
an express condition upon which the loan to Grantor and the financial
accommodations to Grantor have been made. The receiver, out of such rents,
issues, and profits when collected, may pay all attorneys’ fees and expenses;
may pay all costs and operating expenses incurred in the management and
operation of the Mortgaged Property; may pay and secure the release of prior
or
coordinate liens, if any; may pay taxes, assessments, water and other utility
charges, and insurance premiums, then due or thereafter accruing; may make
and
pay for any repairs to the Mortgaged Property deemed advisable to Agent; and
may
pay all or any part of the Secured Obligations then due and payable, or other
sums secured hereby or any deficiency decree entered in any foreclosure
proceedings or otherwise as Agent may direct, all in such order of application
as Agent may direct.
7
(e) Agent
will have all the rights and remedies of a secured party under the Uniform
Commercial Code and any other applicable laws. Agent may appoint or delegate
any
one or more persons as agent to perform any act or acts necessary or incident
to
any sale held by Agent, including the sending of notices and the conduct of
the
sale, but in the name and on behalf of Agent. Further, Agent may proceed as
set
forth in Section 9-604 of the Uniform Commercial Code which provides that if
a
security agreement covers both real and personal property, as is the case
herein, Agent may proceed against only the personal property or proceed against
both the real and personal property in accordance with the rights and remedies
in respect of the real property, in which case the provisions of the Uniform
Commercial Code do not apply. Agent is hereby authorized to direct the Trustee
to foreclose the personal property in accordance with the real property rights
and remedies as set forth herein.
(f) Agent
may
exercise any and all other remedies available at law or in equity.
19. Substitute
Trustee.
Agent,
at its option, may from time to time remove Trustee and appoint a successor
trustee to any Trustee appointed hereunder by an instrument recorded in the
county in which this Deed of Trust is recorded. Without conveyance of the
Mortgaged Property, the successor trustee will succeed to all the title, power
and duties conferred upon Trustee herein and by applicable law.
20. Lender
in Possession.
Upon
any default with respect to the Secured Obligations or upon abandonment of
the
Mortgaged Property by Grantor, Agent (in person, by agent or by judicially
appointed receiver) will be entitled, at Agent’s option, to enter upon, take
possession of and manage the Mortgaged Property and to collect the rents of
the
Mortgaged Property, including those past due. Any rents collected by Agent
or
the receiver will be applied first to payment of the costs of management of
the
Mortgaged Property and collection of rents, including, but not limited to,
receiver’s fees, premiums on receiver’s bonds and reasonable attorneys’ fees,
and then to the Secured Obligations.
21. Costs
and Expenses.
Xxxxxxx
agrees to pay all fees and charges incurred in the procuring and making of
this
Deed of Trust or in the perfection of the lien and security interests created
by
this Deed of Trust. Xxxxxxx further agrees to pay each and all of the costs,
charges and expenses, including, to the extent permitted by law, attorneys’ fees
and abstract and title insurance costs, reasonably incurred or paid at any
time
by Agent because of the failure of Grantor to perform, comply with, and abide
by
each and every of the agreements, conditions, and covenants of any of the Loan
Documents.
8
22. Waivers.
To the
extent permitted by law, Xxxxxxx agrees not at any time to insist upon, plead,
claim or take any benefit or advantage, in any way whatsoever, whether now
or in
the future, of any of the following: (a) any law providing for the valuation
or
appraisal of all or any part of the Mortgaged Property prior to or after any
sale or sales made pursuant to this Deed of Trust, or pursuant to the decree,
judgment, or order of any court of competent jurisdiction; or (b) any right
under any statute to redeem all or any part of the property so sold. Grantor
wholly waives, for Grantor and those who claim under Grantor (a) all rights
and
periods of redemption provided under Missouri law, and (b) all right to have
the
Mortgaged Property or any other assets which secure the Secured Obligations
marshaled upon any foreclosure under this Deed of Trust.
23. Successors
and Assigns; Joint and Several Liability.
The
covenants and agreements of this Deed of Trust will benefit the Agent and
Agent’s successors and assigns. Grantor’s covenants and agreements are joint and
several.
(Remainder
of this page intentionally left blank)
9
BY
SIGNING BELOW,
Xxxxxxx
accepts and agrees to the terms and covenants contained in this Deed of
Trust.
|
GRANTOR:
|
|
|
a
Missouri limited liability company
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
ACKNOWLEDGMENT
STATE
OF
____________ )
)
ss.
COUNTY
OF
__________ )
On
this,
the _____ day of __________________ in the year 2008, before me,
____________________, a Notary Public in and for said state, personally appeared
_____________________, Manager of Show Me Ethanol, LLC, a Missouri limited
liability company, known to me to be the person who executed the within
instrument in behalf of said limited liability company and acknowledged to
me
that he/she executed the same for the purposes therein stated.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my notorial seat at
my
office in ______________________________, ________________________, the day
and
year last above written.
|
Notary
Public in and for
|
|
said
County and State
|
My
commission expires:
(The
Notary Public must type or print his/her name immediately beneath his/her
signature)
S-1
EXHIBIT
A
The
following real estate located in Xxxxxxx County, Missouri:
That
portion of the North half of Section 35, Township 53 North of the base line,
Range 23 West of the Fifth Principal Meridian, Xxxxxxx County, Missouri,
described as follows: Beginning at a point on the East line of the Northwest
Quarter in said Section 35 that is North 01°50’28”
East, 70.82 feet from the center of said Section 35, said point being on the
Northerly right of way line of Missouri Highway 24; thence Westerly along a
curve to the right, having a radius of 1597.02 feet, though a central angle
of
12°15’59”,
an arc length of 341.90 feet along said R.O.W. line; thence North 87°48’53”
West, 43.20 feet along said R.O.W. line; thence North 02°11’07”
East, 5.00 feet along said R.O.W. line; thence North 87°48’53”
West, 99.87 feet along said R.O.W. line; thence North 00°28’54”
West, 482.81 feet; thence South 83°30’24”
West, 677.88 feet; thence North 07°56’29”
West, 255.90 feet; thence North 81°47’56”
East, 346.62 feet; thence North 49°30’21”
East, 62.47 feet; thence North 13°53’07”
East, 378.24 feet; thence North 23°25’30”
East, 129.10 feet; thence North 07°49’59”
West, 208.97 feet; thence South 74°43’16”
East, 333.68 feet; thence South 76°58’57”
East, 108.16 feet; thence North 89°54’09”
East, 169.98 feet; thence North 75°36’56”
East, 302.17 feet; thence South 47°13’25”
East, 294.66 feet; thence South 15°58’29”
West, 876.92 feet; thence North 77°34’13”
West, 164.41 feet to the West line of the Northeast Quarter in said Section
35;
thence South 01°50’28”
West, 384.70 feet along said West line and along said East line to the point
of
beginning.
A-1
EXHIBIT
B
DESCRIPTION
OF NOTES
| 1. |
9%
Subordinated Secured Promissory Notes Due June 1 2010, dated June
2, 2008,
executed by Show Me Ethanol, LLC, a Missouri limited liability company
to
the following Lenders in the following
amounts:
|
|
Xxxxxx
Farms, Inc.
|
$
|
20,000
|
||
|
Xxxx
Living Trust
|
$
|
40,000
|
||
|
Xxxxxx
and Xxxxxxx Xxxx
|
$
|
30,000
|
||
|
Xxxxxxx
and Xxxxxxx Xxxxxx
|
$
|
20,000
|
||
|
Xxx
and Xxxxxx Xxxxxxxxxx
|
$
|
20,000
|
||
|
Central
Missouri BioFuels, LLC
|
$
|
75,000
|
||
|
Xxxxxx
X. Xxxxx
|
$
|
30,000
|
||
|
Xxxxx
and Xxxxx Xxxxxx
|
$
|
50,000
|
||
|
Xxxxx
X. Xxxxxx
|
$
|
100,000
|
||
|
Xxxxx
X. and Xxxxxxx X. Xxxxxxx
|
$
|
30,000
|
||
|
Xxxx
X. and Xxxx X. Xxxxx
|
$
|
40,000
|
||
|
Xxxxxx
Xxxxxxxxx
|
$
|
50,000
|
||
|
Xxxxx
and Xxxxxx Xxxxxxxxx
|
$
|
50,000
|
||
|
Xxxxxxx
X. Xxxxxxxxx Trust
|
$
|
40,000
|
||
|
Farmers
Grain Terminal, LLC
|
$
|
500,000
|
||
|
Xxxxxx
X. Xxxxxxxx Trust
|
$
|
250,000
|
||
|
Xxxx
Enterprises, Inc.
|
$
|
25,000
|
||
|
Xxxx
Family Investments, LP
|
$
|
25,000
|
||
|
Xxxxx
X. Xxxx
|
$
|
20,000
|
||
|
Xxxxx
and Xxxx Xxxxxx Xxxxx, LP
|
$
|
50,000
|
||
|
Xxxxxxx
X. Xxxxxx
|
$
|
20,000
|
||
|
Jefferson
City Oil Co.
|
$
|
300,000
|
||
|
Xxxx
Xxxxx
|
$
|
20,000
|
||
|
XX
and Xxxxxxxx Xxxxxxx
|
$
|
50,000
|
||
|
Xxxx
Xxxxxxx Revocable Trust
|
$
|
40,000
|
||
|
Xxxxx
Farms Inc.
|
$
|
30,000
|
||
|
Xxxxxxx
and Xxxxxxx Xxxxx
|
$
|
25,000
|
||
|
Xxxx
X. Xxxxxx
|
$
|
20,000
|
||
|
Xxxxxx
X. XxXxxxxxx
|
$
|
125,000
|
||
|
Xxxxxx
Xxxxx Farms, Inc.
|
$
|
30,000
|
||
|
Xxxxxx
Xxxx
|
$
|
20,000
|
||
|
Xxxxxx
Xxxxx
|
$
|
25,000
|
||
|
Xxx
Xxxxxxx County Grain Growers, Inc.
|
$
|
1,000,000
|
||
|
Xxx
Xxxx and Loan Company
|
$
|
100,000
|
||
|
Xxxxx
Brothers, LLC
|
$
|
150,000
|
||
|
Xxxx
and Xxxxxxx Xxxxxxxx
|
$
|
25,000
|
||
|
Xxxx
and Xxxxx Xxxxx
|
$
|
25,000
|
||
|
Xxxxxxx
Xxxx
|
$
|
20,000
|
||
|
Xxxxx
Xxxxxxx Revocable Trust
|
$
|
100,000
|
B-1
EXHIBIT
C
PERMITTED
ENCUMBRANCES
|
1.
|
General
taxes for State/County for the year 2008 and all subsequent years,
and
special assessments due or payable
therewith.
|
|
2.
|
Lease
Agreement, between Xxxxxxx County, Missouri, as lessor, and Show
Me
Ethanol, LLC, as lessee, as evidenced by a Memorandum of
Lease.
|
|
3.
|
Deed
of Trust and Security Agreement, by Show Me Ethanol, LLC, to Husch
Trustee, Inc., a trustee for FCS Financial, PCA, as administrative
agent,
dated March 1, 2007, filed March 19, 2007, in Book 720, Page 957,
in the
Recorder’s Office located in Xxxxxxx County, Missouri (“Record’s
Office”).
|
|
4.
|
Assignment
of Leases and Rents, by Show Me Ethanol, LLC, to FCS Financial, PCA,
as
administrative agent, filed March 19, 2007, in Book 720, Page 984
in the
Record’s Office.
|
|
5.
|
Other
encumbrances as provided in the title
commitment.
|
B-2
