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PREPARED BY AND UPON
RECORDATION RETURN TO:
Bryan Cave LLP
1200 Main Street, Suite 3500
Kansas City, Missouri 64105
Attention: Dennis M. Alt
(space above reserved for Recorder’s
use)
MISSOURI LEASEHOLD DEED OF TRUST,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
SHOW ME ETHANOL, LLC,
a Missouri limited liability company,
as Grantor
to
THOMAS F. KREAMER,
as Trustee
for the benefit of
STATE BANK OF SLATER,
as Grantee (Agent)
Dated as of June 5, 2008
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Location:
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Carroll County, Missouri
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Grantee’s
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Address:
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201 West Maple Street, Slater, MO 65349, Attention: William L.
Summers
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Legal
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Description:
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See Exhibit A attached hereto
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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 807 West
Main, P.O. Box 158, Richmond, Missouri 64085 (“
Grantor ”),
THOMAS F. KREAMER ,
a Missouri resident, with an address of c/o Bryan Cave LLP, 1200
Main Street, Suite 3500, Kansas City, Missouri 64105
(the
“
Trustee ”),
for the benefit of
STATE BANK OF SLATER ,
with an address of 201 West Maple Street, Slater, MO 65349,
Attention: William L. Summers, 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.
B.
Grant .
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 Carroll 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 Carroll 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 Lender
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 Lender 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 .
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 .
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
1/12
th 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
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