EXHIBIT 10.21
COLORADO DEED OF TRUST
THIS DEED OF TRUST is made and entered into this 5th day of November, 1997,
by and between Alliance Farms Cooperative Association, a Colorado cooperative
corporation, whose address is 000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxxxxxx, 00000,
hereinafter referred to as Borrower, and the Public Trustee of the County of
Yuma, State of Colorado, hereinafter referred to as Trustee, and Farmland
Industries, Inc., a Kansas cooperative corporation, whose address is X.X. Xxx
0000, Xxxxxx Xxxx, Xxxxxxxx 00000, hereinafter referred to as Lender.
WITNESSETH: that Borrower, in consideration of the debt and trust
hereinafter mentioned and created, and the sum of One Dollar to Borrower paid by
Trustee, the receipt of which is hereby acknowledged, does by these presents
grant, bargain, sell and convey unto Trustee all of, and grant a security
interest unto Trustee in all of the real estate, chattels, property, rights,
privileges and franchises situated in the County of Yuma in the State of
Colorado, which is legally described on Exhibit A attached hereto, and
incorporated herein by this reference, together with all rights, privileges,
easements, appurtenances, royalties, mineral, oil and gas rights and profits,
water, water rights and irrigation and drainage rights of every kind and
description, however evidenced or manifested, water stock and unharvested crops
thereunto attaching or belonging (whether now existing or hereafter arising);
and the rents, issues and profits thereof; and all buildings and improvements
now erected, or hereafter to be erected, upon said premises; and all
condemnation or eminent domain awards, compensations, settlements or other
payments payable as respects said premises (all of the aforesaid herein
sometimes referred to as the "Mortgaged Premises"). To have and to hold in
trust, nevertheless that in case of default of this Deed of Trust, the Note, as
hereinafter defined, or any other Loan Documents, as hereinafter defined, the
beneficiary hereunder or the legal holder of the indebtedness secured hereby may
declare a violation of any of the covenants herein contained and elect to
advertise said property for sale and demand such sale, then, upon filing notice
of such election and demand for sale with the Trustee, who shall upon receipt of
such notice of election and demand for sale cause a copy of the same to be
recorded in the recorder's office of the county in which said real estate is
situated, it shall and may be lawful for the Trustee to sell and dispose of the
same at public auction at the door of the Court House in the County of Yuma,
State of Colorado, for the highest and best price the same will bring in cash,
four weeks' public notice having been previously given of the time and place of
such sale, by advertisement, weekly, in some newspaper of general circulation
at that time published in said County of Yuma, State of Colorado.
IN TRUST, HOWEVER, for the following purposes:
WHEREAS, Borrower, being justly indebted to Lender in the principal sum of
One Million Three Hundred Sixty Thousand and NO/100 Dollars ($1,360,000.00) for
money borrowed, has executed and delivered to Lender one certain promissory note
(said note or other obligation referred to above is hereinafter called the
"Note") bearing even date herewith.
AND WHEREAS, Borrower further agrees with Lender as follows:
I. To pay all taxes and assessments of every kind or nature upon the
Mortgaged Premises, when the same are by law due and payable. Upon receipt by
Lender, Borrower will immediately deliver to Lender a paid receipt evidencing
payment of said taxes and assessments.
II. To immediately procure, maintain, pay all premiums on, and keep in the
possession of Lender without lapse, policies of insurance in companies
acceptable to Lender. Said polices shall be against fire and the other risks
covered by the broadest available form of extended coverage insurance, in an
amount equal to 100% of the full replacement cost of the Mortgage Premises,
covering the Mortgaged Premises, and shall be maintained until the Note is paid
in full. Said policies shall have mortgage clauses attached thereto making
loss, if any, payable to Lender, as its interest may appear. In the event of
loss, Borrower shall give immediate notice to Lender and Lender is hereby
authorized to make proofs of loss if the same are not made promptly by Borrower.
Said insurance companies are hereby authorized to make payments for such loss
directly to Lender, and the proceeds of such insurance, or any part thereof, may
be applied by Lender, at is option, either to the reduction of the Note, or to
the restoration or repair of the damaged property. In the event of foreclosure
of this Deed of Trust, or in the event transfer of title to the Mortgaged
Premises in extinguishment of the Note, all right, title and interest of
Borrower in and to the insurance policies then in force shall pass to the
purchaser or grantee, as the case may be. Borrower will deliver to Lender,
concurrently with the execution of this Deed of Trust, a certificate of
insurance evidencing insurance complying with the requirements of this Deed of
Trust in effect, and Borrower shall deliver to Lender replacement certificates
prior to the expiration of any insurance policy. Each policy of insurance shall
provide that it cannot be canceled, terminated or amended except upon thirty
(30) days prior written notice to Lender.
III. To keep and maintain the buildings and other improvements now or hereafter
a part of the Mortgaged Premises in good condition and repair at all times, and
not suffer waste or permit a nuisance thereon or perform any work thereon which
will materially lessen the value of the Mortgaged Premises.
IV. To keep the Mortgaged Premises free from all statutory or other lien
claims of every kind.
V. To comply with all building, zoning and other laws, ordinances or
regulations and to comply with the terms of any easements, restrictions, home
association or other agreements to which the title to the Mortgaged Premises is
or may be subject.
VI. That if Borrower sells, assigns, contracts to sell, leases or otherwise
conveys away the Mortgaged Premises or any part thereof or interest therein, or
if title to the Mortgaged Premises becomes vested in any other person or
persons, then Lender may, at its option, declare the Note as immediately due and
payable.
VII. That in the event of any default or failure to perform by Borrower as
respects any of its duties or obligations hereunder, Lender may, but shall not
be obligated to, cure such defaults or failures, and any sums or amounts
expended by Lender in so doing shall bear interest at the rate provided in the
Note, be payable on demand or, at Lender's option, be added to the principal of
the Note and be secured hereby.
VIII. That this Deed of Trust shall secure all of the debt due at any time under
the Note or hereunder, including but not limited to late charges and other
amounts required to be paid by the Note or hereunder.
IX. To pay all and singular the costs, charges, and expenses, including
attorneys' fees and expenses, abstract and/or title insurance costs and
expenses, publication fees and court costs and litigation expenses, incurred or
paid at any time by Lender because of the failure of Borrower to perform the
terms hereof or the exercise by Lender of any of its rights hereunder.
X. To pay all recording costs, real estate transfer taxes, expenses or other
similar costs incurred in connection with the execution or recording of this
Deed of Trust.
XI. To pay and comply with all of the terms and provisions of the Note and this
Deed of Trust.
XII. To pay when due all indebtedness secured by, and to perform when due all
covenants and agreements under, any mortgages or other liens which have or may
attain priority over the lien of this Deed of Trust.
XIII.That in the event that (a) an order for relief shall be entered with
respect to Borrower under the United States Bankruptcy Code, or (b) Borrower
proposes or enters into an arrangement with any of its creditors or makes an
assignment for the benefit of creditors, or (c) a receiver is appointed for
Borrower or for the Mortgaged Premises or any part thereof and not removed in
thirty (30) days, or (d) Borrower files a petition or institutes proceedings in
bankruptcy or is adjudicated a bankrupt under any state law for the relief of
debtors or under the bankruptcy laws of the United States, then, or any other
time thereafter, the whole of the aforesaid indebtedness and all other sums
secured by this Deed of Trust and any other agreement given pursuant hereto
shall become due and payable at once at the option of Lender and Lender shall be
entitled to declare this Deed of Trust to be in default and to have all remedies
provided hereunder.
XIV. That in the event of default in the performance of any of the terms,
conditions or provisions of the Note or this Deed of Trust, Lender shall be
entitled to the immediate possession of the Mortgaged Premises, together with
all rents, issues and profits to be derived therefrom until the indebtedness
secured is fully paid. In addition to such remedy, after the happening of any
default and during the continuance thereof, or upon the commencement of any
proceedings to foreclose this Deed of Trust, or to enforce the specific
performance hereof, or in aid thereof, or upon the commencement of any other
judicial proceedings to enforce any right of Lender hereunder, Lender shall be
entitled, as a matter of strict right, if Lender shall so elect, without the
giving of notice to any party and without regard to the adequacy or inadequacy
of any security for the indebtedness represented by the Note and any advances
made by Lender hereunder or the solvency or insolvency of Borrower, either
before or after declaring the unpaid principal of the Note to be due and
payable, to the appointment of a receiver for the Mortgaged Premises.
XV. That the covenants, conditions and terms herein contained shall bind and
the benefits and advantages shall inure to the heirs, legal representatives,
successors and assigns of Borrower and the successors and assigns of Lender.
Whenever employed herein and where the context requires, the singular term and
the related pronoun shall include the plural, and the masculine gender shall
include the feminine and neuter, and vice versa.
XVI. That if all or any part of the Mortgaged Premises be taken or damaged by
the exercise of this power of eminent domain, Borrower may contest the same in
good faith so long as Borrower is not in default in any payment of the Note, but
the award for any property so taken is hereby assigned to Lender, its heirs,
successors or assigns, and Lender, its heirs, successors or assigns, upon such
award becoming final, is hereby authorized, in the name of Borrower, to execute
and deliver acquittances for, and release of, any such award and to collect and
apply the proceeds to the payment of all indebtedness hereby secured including
both principal and interest, whether mature or unmatured (such application to be
in such order and to such portion of the secured indebtedness as Lender may
elect), and the remainder, if any, shall be paid to those legally entitled
thereto.
XVII. Borrower covenants, agrees and warrants that Borrower has good and clear
title to the Mortgaged Premises, free and clear of liens and encumbrances, and
that Borrower has good right and lawful authority to mortgage, convey and grant
a security interest respecting the same in the manner and form herein set forth.
NOW, if the Note and the interest thereon be paid when due, and the
agreements set forth in the Note and this Deed of Trust be faithfully performed
as aforesaid, then these presents, shall be void, and the property hereinbefore
conveyed shall be released at the cost of Borrower; but if default be made in
the payment of the Note or any part thereof, or in the faithful performance of
any of said agreements set forth in the Note or this Deed of Trust, then Lender
hereunder or the legal holder of the indebtedness secured hereby may declare a
violation of any of the covenants herein contained and exercise its power of
sale and demand that Trustee sell and dispose of the same at public auction at
the door of the Court House in the County of Yuma, State of Colorado. Trustee
shall receive the proceeds of such sale, out of which he shall pay: first the
cost and expense of executing this trust, including publication fees, mailing
charges, title charges, attorneys' fees of Lender and/or Trustee and lawful
compensation to Trustee for his services; next, he shall repay any money paid by
Lender in accordance with the terms of this Deed of Trust, with interest
thereon, as above provided; next, the amount unpaid on the Note, together with
interest accrued thereon, and all overdue payments and charges provided for in
the Note or this Deed of Trust, and the remainder, if any, shall be paid to such
parties as may be entitled thereto.
And Trustee covenants faithfully to perform the trust herein created.
And Trustee hereby lets the Mortgaged Premises to Borrower until a sale be
had under the foregoing provision therefor, upon the following terms and
conditions: Borrower, and every and all persons claiming or possessing the
Mortgage Premises, and any part thereof, by, through or under Borrower, shall
pay rent therefor during said term at the rate of one cent per month payable
monthly upon demand and shall and will surrender peaceable possession of the
Mortgaged Premises, and any and every part thereof, sold under the provisions
hereof, to Trustee, his successors, assignees or purchasers thereof under such
sale, within ten days after making of such sale, without notice or demand
therefor.
The rights and remedies granted to Lender in this Deed of Trust shall not
be exclusive but shall be in addition to all other rights and remedies at law or
in equity. Without limiting the generality of the foregoing, Lender shall at
all times have the right, at Lender's option, to enforce Lender's rights
hereunder by legal or equitable court action. In the event of foreclosure
Borrower shall be fully liable for any deficiency.
The failure of Lender to assert any of its rights hereunder at any time
shall not be construed as a waiver of its right to assert the same at any later
time, and to insist upon and enforce strict compliance with all the terms and
provisions of the Note and of this Deed of Trust. Notice of the exercise of any
option granted herein to Lender shall not be required. Lender may resort for
the payment and performance of the obligations secured by this Deed of Trust to
any other security therefor held by Lender in such order and manner as Lender
may elect.
To the extent permitted by law, Borrower waives any and all rights of
redemption.
IN WITNESS WHEREOF, Borrower has caused this Deed of Trust to be executed
as of the day and year first above written.
BORROWER:
Alliance Farms Cooperative Association, a Colorado
cooperative corporation
By:
Printed Name:
Title:
CORPORATION ACKNOWLEDGMENT
STATE OF MISSOURI)
) SS.
COUNTY OF CLAY )
On this 7th day of November, 1997, before me, Xxxxx X. Xxxxx, a Notary
Public in and for said State, personally appeared Xxxxx Xxxxxxx, to me
personally known, who being by me duly sworn did say that he is the Vice
President of Alliance Farms Cooperative Association, a Colorado cooperative
corporation, and that said instrument was signed on behalf of said corporation
by authority of its Board of Directors, and said Xxxxx Xxxxxxx acknowledged said
instrument to be the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in Kansas City, Missouri, the day and year last above written.
Printed Name: Xxxxx X. Xxxxx
Notary Public in and for said State
Commissioned in Xxxxxxx County
My commission expires:
EXHIBIT A
(Legal Description)
A parcel of land in the Southwest Quarter (SW1/4) of Section 8, Township 1
South, Range 47 West of the Sixth Principal Meridian, Yuma County, Colorado,
said parcel being more particularly described as follows:
Commencing at the Southwest corner of said Section 8; thence North
89.54'40" East along the South line of said Section 8 a distance of 1536.8 feet
to the true point of beginning; thence North 0.51'30" West a distance of 1612.0
feet; thence North 89.54'40" East a distance of 1081.0 feet to a point on the
East line of said SW1/4; thence South 0.51'30" East along the East line of said
SW1/4 a distance of 1612.0 feet to the Southeast corner of said SW1/4; thence
South 89.54'40" West along the South line of said Section 8 a distance of 1081.0
feet to the point of beginning and containing 40.00 acres, more or less, subject
to a county road right-of-way along the South line of said Section 8.
