First Lien Deed of Trust Assignment of Leases and Rents, Security Agreement and Fixture Filing Statement by Fleischmanns Vinegar Company, Inc., as grantor, to the trustee names therein for the benefit of BNP Paribas (Cerritos, California)

(Space above for recorder’s use)



1.Title of Document:First Lien Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing Statement

2.Date of Document:April 5, 2018

3.Grantor/Borrower:Fleischmann’s Vinegar Company, Inc.

4.Grantor’s Address:12604 Hiddencreek Way, Suite A, Cerritos, CA  90703



5.Grantee/Lender:BNP Paribas

6.Grantee’s Address:787 Seventh Avenue, New York, New York 10019



7.Legal Description:The legal description of the property is set out in Exhibit A attached hereto.









RECORDING REQUESTED BY AND

WHEN RECORDED DELIVER TO:



Latham & Watkins LLP
355 S. Grand Avenue, Suite 100

Los Angeles, California 90071-1560
Attn:  Kim N. A. Boras, Esq.

THIS FIRST LIEN DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING STATEMENT SECURES FUTURE ADVANCES AND FUTURE OBLIGATIONS AND IS TO BE GOVERNED BY SECTION 443.055, REVISED STATUTES OF MISSOURI. $1,000,000,000 IS THE TOTAL PRINCIPAL AMOUNT OF ALL OBLIGATIONS WHICH ARE SECURED HEREBY. 



THIS FIRST LIEN DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING STATEMENT CONTAINS AFTER ACQUIRED PROPERTY PROVISIONS AND COVERS GOODS WHICH ARE OR ARE TO BECOME FIXTURES, AND IS EFFECTIVE AS A FINANCING STATEMENT FILED AS A FIXTURE FILING, AND IS TO BE FILED IN THE REAL ESTATE RECORDS.

FIRST LIEN DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING STATEMENT

THIS FIRST LIEN DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING STATEMENT (this “Deed of Trust”) is made as of April 5, 2018, by and among Fleischmann’s Vinegar Company, Inc., a Delaware corporation (together with its successors and permitted assigns, “Grantor”), having an address at 12604 Hiddencreek Way, Suite A, Cerritos, California  90703, to Steven M. Leigh (“Trustee”), having an address at 1044 Main St., Suite 900 Kansas City, MO 64105, for the benefit of BNP PARIBAS (“BNPP”), as Agent (as hereinafter defined), having an address at 787 Seventh Avenue, New York, New York 10019 (BNPP, in such capacity, together with its successors and assigns, “Beneficiary”).

RECITALS

.  NOW, THEREFORE, in consideration of (A) Ten Dollars ($10.00) in hand paid, the receipt and sufficiency of which are hereby acknowledged, and (B) the foregoing Recitals, for the purpose of securing the complete and timely performance and payment of all present and future indebtedness, liabilities and obligations which the Grantor has from time to time incurred or may

incur or be liable to the Lenders and the Agent (each, a “Secured Party”, collectively, the “Secured Parties”) under or in connection with the Obligations Secured, THE GRANTOR HEREBY GRANTS, BARGAINS, SELLS, CONVEYS AND CONFIRMS TO TRUSTEE AND HEREBY ASSIGNS AND SETS OVER TO TRUSTEE, IN TRUST WITH POWER OF SALE FOR THE USE AND BENEFIT OF AGENT, AND GRANTS AGENT (for the benefit of the Secured Parties) A SECURITY INTEREST IN the real estate legally described in Exhibit A hereto (the “Land”) in Christian County (the “County”), Missouri (the “State”); together (i) with all right, title and interest, if any, that the Grantor may now have or hereafter acquire in and to all improvements, buildings and structures of every nature whatsoever now or hereafter located on the Land; and (ii) all air rights, water rights and powers, development rights or credits, zoning rights or other similar rights or interests that benefit or are appurtenant to the Land (all of the foregoing, including the Land, the “Premises”);

TOGETHER WITH all right, title and interest, if any, including any after-acquired right, title and interest, and including any right of use or occupancy, that the Grantor may now have or hereafter acquire in and to any of the following related to the Land:  (a) all easements, rights of way or gores of land or any lands occupied by streets, ways, alleys, passages, sewer rights, water courses and public places, and any other interests in property constituting appurtenances to the Premises, or that hereafter shall in any way belong, relate or be appurtenant thereto; (b) all licenses, authorizations, certificates, variances, consents, approvals and other permits now or hereafter relating to the Real Property (as defined below), excluding any of the foregoing items that cannot be transferred or encumbered by the Grantor without causing a default thereunder or a termination thereof; (c) all hereditaments, gas, oil and minerals (with the right to extract, sever and remove such gas, oil and minerals) located in, on or under the Premises; (d) all split or division rights with respect to the Land and easements of every nature whatsoever; and (e) all other rights and privileges thereunto belonging or appertaining and all extensions, additions, improvements, betterments, renewals, substitutions and replacements to or of any of the rights and interests described in clauses (a), (b), (c) and (d) above (all of the foregoing, the “Property Rights”);

TOGETHER WITH all right, title and interest, if any, including any after-acquired right, title and interest, and including any right of use or occupancy, that the Grantor may now possess or hereafter acquire in and to all fixtures and appurtenances of every nature whatsoever now or hereafter located in or on, or attached to, or used or intended to be used in connection with (or with the operation of), the Premises, including (a) all apparatus, machinery and equipment of the Grantor (to the extent that any of the foregoing constitute “fixtures” under applicable law); and (b) all extensions, additions, improvements, betterments, renewals, substitutions and replacements to or of any of the foregoing (all items listed in the foregoing clauses (a) and (b), the “Fixtures”).  Grantor and Agent agree that the Premises and all of the Property Rights and Fixtures owned by the Grantor (collectively the “Real Property”) shall, so far as permitted by law, be deemed to form a part and parcel of the Land and for the purpose of this Deed of Trust to be real estate and covered by this Deed of Trust; and

TOGETHER WITH all the estate, right, title and interest, if any, of the Grantor in and to (i) all judgments, insurance proceeds, awards of damages and settlements resulting from condemnation proceedings or the taking of the Real Property, or any part thereof, under the power of eminent domain or for any damage (whether caused by such taking or otherwise) to the Real Property, or any part thereof, or to any rights appurtenant thereto, and all proceeds of any sale or

other disposition of the Real Property or any part thereof (it being understood that, except as otherwise provided herein or in the Loan Agreement, the Grantor is hereby authorized to collect and receive such awards and proceeds and to give proper receipts and acquittance therefor, and to apply the same as provided herein); (ii) all contract rights, general intangibles, actions and rights in action relating to the Real Property, including all rights to insurance proceeds and unearned premiums arising from or relating to damage to the Real Property; (iii) all plans and specifications, designs, drawings and other information, materials and matters heretofore or hereafter prepared relating to the Real Property; and (iv) all proceeds, products, replacements, additions, substitutions, renewals and accessions of and to the Real Property (the rights and interests described in this paragraph, the “Intangibles”).

The Grantor (i) pledges and assigns to the Agent from and after the date of the effectiveness hereof (including any period of redemption), primarily and on a parity with the Real Property, and not secondarily, all rents, issues and profits of the Real Property and all rents, issues, profits, revenues, royalties, bonuses, rights and benefits due, payable or accruing (including all deposits of money as advance rent, for security, as earnest money or as down payment for the purchase of all or any part of the Real Property) under any and all present and future leases, contracts or other agreements relative to the ownership or occupancy of all or any portion of the Real Property (all of the foregoing, the “Rents”), and (ii) except to the extent such a transfer or assignment is not permitted by the terms thereof, transfers and assigns to Agent all such leases, contracts and agreements (including all the Grantor’s rights under any contract for the sale of any portion of the Mortgaged Property and all revenues and royalties under any oil, gas and mineral lease relating to the Real Property) (collectively the “Leases”); provided however, that subject to the terms of the Loan Agreement, so long as no Event of Default has occurred and is continuing, a license is hereby given to Grantor to collect and use such Rents.

All of the property described above, including the Land, the Premises, the Property Rights, the Fixtures, the Real Property, the Intangibles, the Rents and the Leases, is called the “Mortgaged Property”).

Nothing herein contained shall be construed as constituting the Agent a mortgagee-in­possession in the absence of the taking of title and/or possession of the Mortgaged Property by the Agent.  Nothing contained in this Deed of Trust shall be construed as imposing on the Agent any obligation of any lessor under any Lease of the Mortgaged Property in the absence of an explicit assumption thereof by the Agent.  In the exercise of the powers herein granted the Agent, prior to Agent taking title to or possession of the Mortgaged Property, no liability shall be asserted or enforced against the Agent, all such liability being expressly waived and released by the Grantor, except for any such liability arising on account of the Agent’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order.

TO HAVE AND TO HOLD the Mortgaged Property, and all other properties, rights and privileges hereby conveyed or assigned, or intended so to be, unto the Trustee and the Agent, their respective beneficiaries, successors and assigns, forever for the uses and purposes herein set forth.  Except to the extent such a release or waiver is not permitted by applicable law, the Grantor hereby releases and waives all rights of redemption or reinstatement, if any, under and by virtue of any of the laws of the State, and the Grantor hereby covenants, represents and warrants that, at the time of the execution and delivery of this Deed of Trust, (a) the Grantor has good and marketable fee

simple title to the Mortgaged Property, with lawful authority to grant, remise, release, alien, convey, mortgage and warrant the Mortgaged Property, (b) the title to the Mortgaged Property is free and clear of all encumbrances, except the Permitted Liens and (c) except for the Permitted Liens, the Grantor will forever defend the Mortgaged Property against all claims in derogation of the foregoing.

.  The Agent and the Grantor further agree that if any of the property herein mortgaged is of a nature so that a security interest therein can be created and perfected under the Uniform Commercial Code in effect in the State (the “Code”), this Deed of Trust shall constitute a security agreement, fixture filing and financing statement, and for that purpose, the following information is set forth:

.  To the extent permitted by law, (i) all of the Fixtures are or are to become fixtures on the Land, and (ii) this instrument, upon recording or registration in the real estate records of the proper office, shall constitute a “fixture-filing” within the meaning of Sections 9-604 and 9-502 of the Code as in effect on the date hereof.  Subject to the terms and conditions of the Loan Agreement, the remedies for any violation of the covenants, terms and conditions of the agreements herein contained shall be as prescribed herein, in any other Loan Document, or by general law, or, as to that part of the security in which a security interest may be perfected under the Code, by the specific statutory consequences now or hereafter enacted and specified in the Code, all at the election of the Required Lenders.

Grantor warrants, represents, and covenants to Beneficiary and the Lenders as follows:

.  Grantor shall preserve and protect the first priority lien of this Deed of Trust.  If any lien or security interest other than a Permitted Lien is asserted against the Mortgaged Property, Grantor shall promptly, and at its expense, (a) give Beneficiary a detailed written notice of such lien or security interest (including origin, amount and other terms), and (b)(i) pay the underlying claim in full or take such other action so as to cause it to be released or (ii) contest the same in compliance with the requirements of the Loan Agreement (including, if applicable, any requirement to provide a bond or other security satisfactory to Beneficiary).

.  Without limiting any provision of the Loan Agreement, the Grantor agrees that, if the government of the United States or any department, agency or bureau thereof or if the State or any of its subdivisions having jurisdiction shall at any time require documentary stamps to be affixed to this Deed of Trust or shall levy, assess or charge any tax, assessment or imposition upon this Deed of Trust or the credit or indebtedness secured hereby or the interest of any Secured Party in the Premises or upon any Secured Party by reason of or as holder of any of  the foregoing then, the Grantor shall pay for such documentary stamps in the required amount and deliver them to the Agent or pay (or reimburse the Agent for) such taxes, assessments or impositions.  The Grantor agrees to provide to the Agent, at any time upon request, official receipts showing payment of all taxes, assessments and charges that the Grantor is required or elects to pay under this Section.  The Grantor agrees to indemnify each Secured Party against liability on account of such documentary stamps, taxes, assessments or impositions, whether such liability arises before or after payment of the Obligations Secured and regardless of whether this Deed of Trust shall have been released.

.  All future lessees under any Lease made after the date of recording of this Deed of Trust shall, at the direction of the Required Lenders (or at the Agent’s option) and without any further documentation, attorn to the Agent as lessor if for any reason the Agent becomes lessor thereunder,

and, upon demand after an Event of Default has occurred and is continuing, pay rent to the Agent, and the Agent shall not be responsible under such Lease for matters arising prior to the Agent becoming lessor thereunder; provided that the Agent shall not become lessor or obligated as lessor under any such Leases unless and until it shall have been directed by the Required Lenders to do so, or it shall elect in writing to do so.

.  The Grantor agrees that it shall not (a) permit the public to use any portion of the Real Property in any manner that could reasonably be expected to impair the Grantor’s title to such property, or to make possible any claim of easement  by prescription or of implied dedication to public use, provided Grantor has actual knowledge of such use; (b) institute or acquiesce in any proceeding to change the zoning classification of the Real Property, nor shall the Grantor change the use of the Mortgaged Property in any material way, without the consent of the Required Lenders, which consent shall not be unreasonably withheld; and (c) permit any material legal or economic waste to occur with respect to the Mortgaged Property.

.  Subject to Section 10.1 of the Loan Agreement, the Grantor shall, at its sole expense, obtain for, deliver to, assign to and maintain for the benefit of the Agent, until the Obligations Secured are paid in full, insurance policies relating to the Mortgaged Property as specified in the Loan Agreement. Prior to an Event of Default, use of insurance proceeds shall be governed by Sections 10.1 and 6.2.3 of the Loan Agreement.  Each such policy shall name the Agent as additional insured or loss payee, as applicable, under a standard mortgage endorsement.  If an Event of Default exists and is continuing, and the Agent has given notice to the Grantor that the Agent intends to exercise its rights under this Section 3.5, then the Agent shall be entitled to (a) adjust any casualty loss and (b) apply the proceeds thereof as provided in Section 4.2 of this Deed of Trust.

.  The Grantor covenants and agrees to pay before delinquent all real property taxes, assessments, ground rent, if any, water and sewer rents, fees and charges, levies, permit, inspection and license fees and other dues, charges or impositions, including all charges and license fees for the use of vaults, chutes and similar areas adjoining the Land, maintenance and similar charges and charges for utility services, in each instance whether now or in the future, directly or indirectly, levied, assessed or imposed on the Premises or the Grantor and whether levied, assessed or imposed as excise, privilege or property taxes; provided that the foregoing shall not require the Grantor to pay any of the foregoing so long as it shall contest the validity thereof in good faith by appropriate proceedings and shall set aside on its books adequate reserves with respect thereto in accordance with GAAP and so long as neither the Mortgaged Property nor any part thereof or interest therein shall be in reasonable danger of being sold, forfeited, terminated, cancelled or lost.

.  Subject to the terms of the Loan Agreement, the Grantor assigns to the Agent, as additional security, all awards of damage resulting from condemnation proceedings or the taking

of or injury to the Real Property for public use “Eminent Domain Proceedings”).  If an Event of Default exists and is continuing and the Agent has given notice to the Grantor that the Agent intends to exercise its rights under this Section 3.7, then the Agent shall be entitled to (a) participate in and/or direct (at the sole discretion of the Required Lenders any Eminent Domain Proceedings and (b) apply the proceeds thereof as provided in Section 4.2 of this Deed of Trust.

.  Subject to the provisions of the Loan Agreement, upon the occurrence and during the continuance of an Event of Default, including a failure to perform or observe any of the covenants set forth in this Deed of Trust that is not cured within any applicable cure period, in addition to any rights and remedies provided for in the Loan Agreement or other Loan Document, if and to the extent permitted by applicable law, the following provisions shall apply:

Trustee shall deliver to the purchaser at the sale, within a reasonable time after the sale, a Trustee’s deed conveying the Mortgaged Property so sold without any covenant or warranty, express or implied.  The recitals in Trustee’s deed shall be prima facie evidence of the truth of the statements made therein.

.  Subject to the requirements of applicable law, the proceeds or avails of any trustee or foreclosure sale and all moneys received by Agent pursuant to any right given or action taken under the provisions of this Deed of Trust shall be applied as follows:

The Grantor shall remain liable for any deficiency to the extent provided in the documents that create the Obligations Secured.

.  No remedy or right of the Agent shall be exclusive of, but shall be in addition to, every other remedy or right now or hereafter existing at  law or in equity.  No delay in the exercise or omission to exercise any remedy or right available during the existence of any Event of Default shall impair any  such remedy or right or be construed to be a waiver of such Event of Default or acquiescence therein, nor shall it affect any subsequent Event of Default of the same or different nature.  To the extent permitted by applicable law, every such remedy or right may be exercised concurrently or independently and when and as often as may be deemed expedient by the Agent.

.  If more than one property,  lot or parcel is covered by this Deed of Trust, and this Deed of Trust is foreclosed upon or judgment is entered upon any Obligations Secured, (or, in the case of a trustee’s sale, shall  have  met  the statutory requirements thereof with respect to such

collateral), execution may be made upon any one or more of the properties, lots or parcels and not upon the others, or upon all of such properties or parcels, either together or  separately, and at different times or at the same time, and execution sales or sales by advertisement may likewise be conducted separately or concurrently, in each case at the election of the Required Lenders.

.  In the event of a foreclosure of this Deed of Trust or any other mortgage or trust deed securing the Obligations Secured, the Obligations Secured then due shall, at the option of the Required Lenders, not be merged into any decree of foreclosure entered by the court, and the Trustee or Agent may concurrently or subsequently seek to foreclose one or more mortgages or deeds of trust that also secure the Obligations Secured.

.  All notices and other communications hereunder shall be in writing and shall be given in the manner, within the time periods and to the applicable address identified in the Loan Agreement.

.  This Deed of Trust shall be construed, governed and enforced in accordance with the laws of the State (without regard to the conflict of law provisions).  Wherever possible, each provision of this Deed of Trust shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Deed of Trust shall be prohibited by or invalid under applicable law, such provision shall be effective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Deed of Trust.

.  Upon full payment and performance of all the Obligations Secured, or upon satisfaction of the conditions set forth in the Loan Agreement for release of the Mortgaged Property from this Deed of Trust, then the Agent shall, promptly upon request of the Grantor, request the Trustee to reconvey the Mortgaged Property and shall surrender this Deed of Trust and evidence of satisfaction of the Obligations Secured to the Trustee. Trustee shall reconvey the Mortgaged Property without warranty to the person or persons legally entitled thereto.

.  This Deed of Trust shall be binding upon the parties hereto and upon the successors, assigns and vendees of the Grantor and shall inure to the benefit of the parties hereto and their respective successors and assigns; all references herein to the Grantor and to the Agent shall be deemed to include their respective successors and assigns.  The Grantor’s successors and assigns shall include, without limitation, a receiver, trustee or debtor in possession of or for the Grantor. Wherever used herein, the singular number shall include the plural, the plural shall include the

singular, and the use of any gender shall be applicable to all genders. The Secured Parties shall be third party beneficiaries of the Grantor’s representations, warranties, covenants and agreements hereunder.

.  The Grantor agrees, to the full extent permitted by law, that neither the Grantor nor anyone claiming through or under it shall set up, claim or seek to take advantage of any appraisement, valuation, stay, homestead or extension law, whether now or hereafter in force, in order to prevent or hinder the enforcement or foreclosure of this Deed of Trust or the absolute sale of the Mortgaged Property or the final and absolute putting into possession thereof, immediately after such sale, of the purchaser thereof; and the Grantor, for itself and all who may at any time claim through or under it, hereby waives, to the full extent that it may lawfully so do, the benefit of all such laws and any right to have the assets comprising the Mortgaged Property marshaled upon any foreclosure of the encumbrance hereof and agrees that the Agent or any court having jurisdiction to foreclose such encumbrance may sell the Mortgaged Property in part or as an entirety.  To the fullest extent permitted by law, the Grantor irrevocably waives all statutory or other rights of redemption from sale under any order or decree of foreclosure of this Deed of Trust, on its own behalf and on behalf of each and every person acquiring any interest in or title to the Mortgaged Property subsequent to the date hereof.  The Grantor further waives, to the fullest extent it may lawfully do so, all statutory and other rights in its favor, limiting concurrent actions to foreclose this Deed of Trust and the exercise of other rights with respect to the Obligations Secured, including any right vested in the Grantor or any affiliate to limit the right of the Agent to pursue or commence concurrent actions against the Grantor or any such affiliate or any property owned by any one or more of them.  Grantor further waives, to the extent permitted by applicable law, all errors and imperfections in any proceedings instituted by Agent or Trustee under this Deed of Trust and all notices of any Event of Default (except as may be provided for under the terms of this Deed of Trust) or of Agent’s or Trustee’s election to exercise or its actual exercise of any right, remedy or recourse provided for under this Deed of Trust.

.  Notwithstanding anything in this Deed of Trust to the contrary, in the event of a conflict or inconsistency between this Deed of Trust and the Loan Agreement, the provisions of the Loan Agreement will govern.  To the extent any provision of this Deed of Trust specifies performance according to standards established by the Loan Agreement, then such specification shall mean the performance that would be required by the Borrower were the Borrower the owner of the Mortgaged Property and the Grantor hereunder.  Notwithstanding anything to the contrary contained herein, the lien and security interest granted to Beneficiary pursuant to this Deed of Trust and the exercise of any right or remedy by Beneficiary hereunder are subject to the provisions of the Term Loan Intercreditor Agreement.  In the event of any conflict or inconsistency between the terms and provisions of the Term Loan Intercreditor Agreement and the terms and provisions of this Deed of Trust, the terms and provisions of the Term Loan Intercreditor Agreement shall govern and control.

.  Any and all future advances (subject to the limitations on the principal amount of Obligations Secured elsewhere contained in this Deed of Trust) under this Deed of Trust and the Loan Agreement or other Loan Documents shall have the same priority as if the future advance was made on the date that this Deed of Trust was recorded. This Deed of Trust shall secure the Obligations Secured, whenever incurred, such Obligations Secured to be due at the times provided in the Loan Agreement. Notice is hereby given that the Obligations Secured may increase as a result of any defaults hereunder by Grantor due to, for example, and without limitation, unpaid interest or late charges, unpaid taxes or insurance premiums which the Agent elects to advance, defaults under leases that the Agent elects to cure, attorney fees or costs incurred in enforcing the Loan Documents or other expenses incurred by the Agent in protecting the Collateral, the security of this Deed of Trust or the Agent’s rights and interests.

.  Neither this Deed of Trust nor any term hereof may be changed, waived, discharged or terminated orally, or by any action or inaction, but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought.  To the extent permitted by law, any agreement hereafter made by the Grantor and the Agent relating to this Deed of Trust shall be superior to the rights of the holder of any intervening lien or encumbrance.

.

. Time is of the essence with respect to the provisions of this Deed of Trust.

.  The parties hereto have participated jointly in the negotiation and drafting of this Deed of Trust.  In the event an ambiguity or question of intent or interpretation arises, this Deed of Trust shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Deed of Trust.

. After the occurrence of an Event of Default, or in any situation where the Agent or the Required Lenders reasonably determine that the Grantor’s action is not protective of the interest of the Agent in the Mortgaged Property, Agent shall have the right to appear in and defend any legal proceeding brought regarding the Mortgaged Property and to bring any legal proceeding, in the name and on behalf of the Grantor or in the Agent’s name, that the Required Lenders, in their sole discretion, determine is necessary to be brought to protect the Secured Parties’  interest in the Mortgaged Property, as long as Agent provided Grantor fifteen (15) days prior written notice of its intent to bring such proceeding, except in the event of an emergency, in which case no prior notice shall be required (but Agent shall promptly thereafter notify Grantor of the bringing of such proceeding).  Nothing herein is intended to prohibit Grantor from bringing or defending any suit relating to the Mortgaged Property.

. Notwithstanding anything to the contrary contained in this Deed of Trust, this Deed of Trust is only intended as security for the Obligations Secured and the Secured Parties shall not be obligated to perform or discharge, and do not hereby undertake to perform or discharge, any obligation, duty or liability of the Grantor with respect to any of the Mortgaged Property.  Unless and until a Secured Party takes title or possession of the Mortgaged Property, either through foreclosure, the taking of a deed in lieu thereof or otherwise, no Secured Party shall be responsible or liable for the control, care, management or repair of the Mortgaged Property or for any negligence in the management, operation, upkeep, repair or control of the Mortgaged Property resulting in loss or injury or death to any licensee, employee, tenant or stranger or other person.  The Grantor agrees to indemnify and hold harmless the Secured Parties from and against all loss, cost and liability incurred by the Grantor in connection with any of the foregoing that are not the responsibility of the Secured Parties in accordance with this Section; provided that the Grantor shall not be liable for such indemnification to any Secured Party to the extent that resulting from such Secured Party’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order.

.  Grantor unconditionally agrees to forever indemnify, defend and hold harmless, and covenants not to sue for any claim for contribution against, each Secured Party and their respective directors, officers, employees, trustees, agents, financial advisors, consultants, affiliates and controlling persons (each such person, an “Indemnitee”) for any damages, costs, loss or expense, including response, remedial or removal costs and all fees and disbursements of counsel for any such Indemnitee, arising out of any of the following:  (i) any presence, release, threatened release or disposal of any Hazardous Material by Grantor or any subsidiary of Grantor or otherwise occurring on or with respect to the Mortgaged Property, (ii) the operation or violation of any Environmental Law by Grantor or any subsidiary of Grantor or otherwise occurring on or with respect to the Mortgaged Property, (iii) any claim for personal injury, property damage related to Grantor or any subsidiary of Grantor or otherwise occurring on or with respect to the Mortgaged Property, (iv) any claim for actual or threatened injury to, destruction of or loss of natural resources in connection with Grantor or any subsidiary of Grantor or otherwise occurring on or with respect to the Mortgaged Property and (v) the inaccuracy or breach of any environmental representation, warranty or covenant by Grantor  made herein or in any other Loan Document evidencing or securing any obligation  under the Loan Documents or setting forth terms and conditions applicable thereto or otherwise relating thereto.  The foregoing indemnity shall survive the termination of this Deed of Trust and shall remain in force beyond the expiration of any applicable statute of limitations and payment or satisfaction in full of any single claim thereunder.

.  The Obligations Secured include obligations that bear interest at rates that vary from time to time, as provided in the Loan Agreement and the other documents relating to the Obligations Secured.

.  IMPORTANT:  READ BEFORE SIGNING.  THE TERMS OF THIS DEED OF TRUST SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE.  NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS DEED OF TRUST MAY BE LEGALLY ENFORCED.  YOU MAY CHANGE THE TERMS OF THIS DEED OF TRUST ONLY BY ANOTHER WRITTEN AGREEMENT.  THIS NOTICE IS ALSO EFFECTIVE WITH RESPECT TO ALL OTHER CREDIT AGREEMENTS BETWEEN THE PARTIES HERETO.

.  Notwithstanding any other provision of this Deed of Trust or any other Loan Document, the liability of the Grantor hereunder shall not exceed the maximum amount of liability that the Grantor can incur without rendering this Deed of Trust void or voidable under any applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount (and, to the extent necessary to comply with the foregoing under any applicable law, the Obligations Secured shall be reduced to such maximum amount).

.  Trustee shall not be liable for any error of judgment or act done by Trustee in good faith, or be otherwise responsible or accountable under any circumstances whatsoever, except for Trustee’s gross negligence or willful misconduct.  Trustee shall not be personally liable in case of entry by him, or anyone entering by virtue of the powers herein granted him, upon the Mortgaged Property for debts contracted or liability or damages incurred in the management or operation of the Mortgaged Property.  Trustee shall have the right to rely on any instrument, document or signature authorizing or supporting any action taken or proposed to be taken by him hereunder, believed by him in good faith to be genuine.  Trustee shall be entitled to reimbursement for expenses incurred by him in the performance of his duties hereunder and to reasonable compensation for such of his services hereunder as shall be rendered.  Grantor will, from time to time, pay the compensation due to Trustee hereunder and reimburse Trustee for, and save him harmless against, any and all liability and expenses which may be incurred by him in the performance of his duties.

.  All moneys received by Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated in any manner from any other moneys (except to the extent required by law), and Trustee shall be under no liability for interest on any moneys received by her  hereunder.

.  Trustee may resign by the giving of notice of such resignation in writing to Agent. If Trustee shall die, resign or become disqualified from acting in the execution of this trust or shall fail or refuse to execute the same when requested by Agent so to do, or if, for any reason, Agent shall prefer to appoint a substitute trustee to act instead of the forenamed Trustee, Agent shall have full power to appoint a substitute trustee and, if preferred, several substitute trustees in succession who shall succeed to all the estate, rights, powers and duties of the forenamed Trustee.  Agent may, from time to time, by a written instrument executed and acknowledged by Agent, mailed to Grantor and recorded in the County in which the Real Property is located and by otherwise complying with the provisions of the applicable law of the State, substitute a successor or successors to the Trustee named herein or acting hereunder.

.  Any new Trustee appointed pursuant to any of the provisions hereof shall, without any further act, deed or conveyance, become vested with all the estate, properties, rights, powers and trusts of its, her or his predecessor in the rights hereunder with like effect as if originally named as Trustee herein; but nevertheless, upon the written request of Agent or of the successor Trustee, the Trustee ceasing to act shall execute and deliver an instrument transferring to such successor Trustee, upon the trusts herein expressed, all the estates, properties, rights, powers and trusts of

the Trustee so ceasing to act, and shall duly assign, transfer and deliver any of the property and moneys held by such Trustee to the successor Trustee so appointed in its, her or his place.

.  The following notice is given pursuant to Section 432.047 of the Missouri Revised Statutes:

“Oral or unexecuted agreements or commitments to loan money, extend credit or to forbear from enforcing repayment of a debt including promises to extend or renew such debt are not enforceable, regardless of the legal theory upon which it is based that is in any way related to the credit agreement. To protect you (borrower(s)) and us (creditor) from misunderstanding or disappointment, any agreements we reach covering such matters are contained in this writing, which is the complete and exclusive statement of the agreement between us, except as we may later agree in writing to modify it.”

.    Pursuant to Section 427.120 of the Missouri Revised Statutes, Grantor acknowledges receipt of the following:

“Unless you provide evidence of the insurance coverage required by your agreement with us, we may purchase insurance at your expense to protect our interests in your collateral.  This insurance may, but need not, protect your interests.  The coverage that we purchase may not pay any claim that you make or any claim that is made against you in connection with the collateral.  You may later cancel any insurance purchased by us, but only after providing evidence that you have obtained insurance as required by our agreement.  If we purchase insurance for the collateral, you will be responsible for the costs of that insurance, including the insurance premium, interest and any other charges we may impose in connection with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance.  The costs of the insurance may be added to your total outstanding balance or obligation.  The costs of the insurance may be more than the cost of insurance you may be able to obtain on your own.”

.    Grantor reserves possession of the Premises as a tenant at will of Trustee, at a rental of One Dollar ($1.00) per month payable on demand, until an Event of Default shall have occurred, whereupon Grantor (i) shall pay monthly in advance to Beneficiary the fair and reasonable rental value, which amount shall be determined by Beneficiary in Beneficiary’s reasonable judgment, for the use and occupation of the Premises, and (ii) upon demand of Trustee, shall deliver possession of the Premises to Trustee or the purchaser at any Trustee’s sale hereunder. Trustee or any such

purchaser may institute summary or other proceedings in such event to recover possession of the Premises.

.    After the occurrence of an Event of Default and at the request of Agent, Trustee shall proceed to sell the Mortgaged Property, either in mass, in parcels or in any other part or parts thereof, in Agent’s sole determination, and in such order as Agent may determine in Agent’s sole determination, at public vendue, to the highest bidder for cash or other property at a front door (to be designated by Trustee), at the customary place in the county where the Mortgaged Property is located, or at such other place designated by Trustee as may be permitted by law; first giving lawful notice of the time, terms and place of sale, and a description of the Mortgaged Property to be sold, as provided by the law of the State of Missouri then in effect. Trustee may postpone the sale of all or any portion of the Mortgaged Property by public announcement at such time and place of sale (or by any other means permitted by law) and from time to time thereafter may postpone such sale by public announcement at the time and place fixed by the preceding public announcement (or by any other means permitted by law).  Agent may foreclose or otherwise realize upon, and Trustee may sell, one parcel or any other part or parts of the Mortgaged Property, on one or more occasions, without releasing this Deed of Trust, or precluding the further foreclosure or other realization hereunder of any other parcels or other parts of the Mortgaged Property not so foreclosed or realized upon.  Agent or any assignee hereof shall have the right to bid at and become purchaser at any foreclosure sale, applying against the purchase price all or a part of any Obligations Secured then due and owing.  It is agreed that Trustee shall not be disqualified from acting as trustee hereunder or from performing any of the duties of the trustee, or from exercising the rights, powers and remedies herein granted, by reason of the fact that Trustee is an attorney, agent, officer, employee or stockholder of Agent or is otherwise affiliated with Agent in any respect.  Upon any trustee’s sale, Trustee shall execute and deliver a deed or deeds of conveyance of the Mortgaged Property sold to the purchasers thereof, and any statement or recital of fact in such deed shall be prima facie evidence of the truth of such statement or recital, and Trustee shall receive the proceeds of such sale, out of which Trustee shall pay the following amounts in the following order of payment: first, the costs and expenses of selling the Mortgaged Property including, without limitation, publication, survey, title and abstract costs and other expenses, and compensation to Trustee and to any attorneys employed by Trustee, Agent or Lenders for their services and expenses; second, to Agent or Lenders, upon the usual vouchers therefor, all monies paid for insurance, taxes, lien claims, and any other costs and expense advanced or incurred by Agent or Lenders to preserve or protect the Mortgaged Property, and interest on any of the foregoing to the extent permitted herein and allowed under applicable law; third, to Agent or Lenders, the amount of the outstanding Obligations Secured together with the interest thereon; fourth, the remainder of such proceeds, if any, shall be paid to the party or parties legally entitled thereto.

.    In the event of any inconsistencies between the terms and conditions of this Section 7 and the other provisions of this Deed of Trust, the terms and conditions of this Section 7 shall be controlling.

[SIGNATURE PAGE FOLLOWS]





IN WITNESS WHEREOF, Grantor has on the date set forth in the acknowledgement hereto, effective as of the date first above written, caused this instrument to be duly EXECUTED AND DELIVERED by authority duly given.





STATE OF NEBRASKA)

) ss.:

COUNTY OF DOUGLAS)



Personally appeared before me, the undersigned authority in and for the said county and state, on this 29th day of March, 2018, within my jurisdiction, the within named Michelle Mapes, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed in the above and foregoing instrument and acknowledged that she executed the same in her representative capacity, and that by her signature on the instrument, and as the act and deed of the person or entity upon behalf of which she acted, executed the above and foregoing instrument, after first having been duly authorized so to do.

/s/ Ronda Alcala

Notary Public



My commission expires:

 
9/29/20



EXHIBIT A

Legal Description

Tract 1: Commencing at the Northeast corner of the Northwest Quarter (NW¼) of the Southwest Quarter (SW¼) of Section Thirteen (13), Township Twenty-Seven (27), Range Twenty-Two (22), Christian County, Missouri; thence West 305 feet; thence South 401.6 feet for a true point of beginning; thence continuing South 125 feet; thence West 110.5 feet; thence South 95.4 feet; thence West 555.5 feet; thence North 622 feet; thence East 136 feet; thence South 277 feet; thence East 420 feet; thence South 124.6 feet; thence East 110 feet to the point of beginning, all in Christian County, Missouri, subject to any part thereof taken, deeded or used for road or highway purposes.



LESS AND EXCEPT: An irregular shaped parcel of land being a part of the that land described in the Christian County, Missouri Recorder’s Office, Book 160 at page 604, Tract IV, more particularly described as follows: Commencing at the Northeast Corner of the Northwest Quarter of the Southwest Quarter of Section 13, Township 27 North, Range 22 West; thence North 88 degrees 53 minutes 34 seconds West, 835.00 feet; thence South 1 degrees 39 minutes 46 seconds West, 28.56 feet; to the South right-of-way of State Route 14, for a point of beginning; thence South 1 degrees 39 minutes 46 seconds West, 248.44 feet; thence South 88 degrees 53 minutes 34 seconds East, 263.30 feet; thence South 1 degrees 06 minutes 26 seconds West, 125.00 feet; thence North 88 degrees 53 minutes 34 seconds West, 114.52 feet; thence South 1 degrees 39 minutes 46 seconds West, 220.04 feet; thence North 88 degrees 53 minutes 34 seconds West, 286.00 feet; thence North 1 degrees 39 minutes 46 seconds East, 595.21 feet; to the aforementioned South right-of-way of State Route 14; thence South 88 degrees 09 minutes 54 seconds East, 136.00 feet, to the point of beginning. All lying in the Northwest Quarter of the Southwest Quarter of Section 13, Township 27 North, Range 22 West, City of Nixa, Christian County, Missouri. Less and except any part taken, deeded or used for roads or road right of ways. Bearings based on true North as determined by solar observation. Conditions and monuments are as shown on Anderson Engineering, Inc. drawing number WB 103-314, revised November 14, 1988. Subject to encroachment. Commencing at the Northeast Corner of the Northwest Quarter of the Southwest Quarter of Section 13, Township 27 North, Range 22 West; thence North 88 degrees 53 minutes 34 seconds West, 305.00 feet, thence South 1 degrees 39 minutes 46 seconds West, 257.00 feet, thence South 88 degrees 53 minutes 34 seconds West, 110.00 feet; thence South 1 degrees 39 minutes 46 seconds West, 20 feet for a point of beginning. Thence South 88 degrees 53 minutes 34 seconds West 51.8 feet, thence South 01 feet, thence North 88 degrees 53 minutes 34 seconds East approximately 51.8 feet; thence North 1.40 feet, as depicted on Anderson Engineering, Inc. drawing number WB 103-314 dated May 7, 1987.



Tract 2: Commencing at the Northeast corner of the Northwest Quarter (NW¼) of the Southwest Quarter (SW¼) of Section Thirteen (13), Township Twenty-Seven (27), Range Twenty-Two (22), Christian County, Missouri; thence West 25 feet; thence South 294 feet for a true point of beginning; thence continuing South 50 feet; thence West 100 feet; thence South 149 feet; thence West 150 feet; thence North 199 feet; thence East 250 feet to the point of beginning, all in Christian County, Missouri, subject to any par thereof taken, deeded or used for road or highway purposes.



Tract 3: Commencing at the Northeast corner of the Northwest Quarter (NW¼) of the Southwest Quarter (SW¼) of Section Thirteen (13), Township Twenty-Seven (27), Range Twenty-Two (22), in Christian County, Missouri; thence West 25 feet; thence South 277 feet for a true point of beginning; thence continuing South 9 feet; thence West 100 feet; thence North 9 feet; thence East 100 feet to the point of beginning, same being part of Lot 2011 in the Village of Nixa, Christian County, Missouri, subject to any part thereof taken, deeded or used for road or highway purposes.



Tract 4: All that part of the NW1/4 of the SW1/4 of Section 13, Township 27, Range 22, described as follows: From the Northeast Corner of said subdivision West 305 feet and South 37 rods 11½ feet for a point of beginning; thence West 110½ feet, thence North 95.4 feet, thence East 110½ feet, thence South 95.4 feet to the point of beginning, in Christian County, Missouri.



Tract 5: All of a part of the Northwest Quarter (NW1/4) of the Southwest Quarter (SW1/4) of Section 13, Township 27, Range 22 bounded and described as follows: From the Northeast Corner of said subdivision South 493 feet and West 193 feet for a point of beginning; thence West 82 feet, thence South 123 feet, thence East 82 feet, thence North 123 feet to the point of beginning, Christian County, Missouri.



Tract 6: All of Lot 1 Final Plat of Out of Sight Subdivision, a Subdivision in the City of Nixa, Christian County, Missouri, according to the recorded plat thereof filed in Book H, Page 695.