EXHIBIT 10.103
MISSOURI FUTURE ADVANCE
DEED OF TRUST AND SECURITY AGREEMENT
THIS DEED OF TRUST SECURES FUTURE ADVANCES
AND ALSO SECURES ALL OTHER FUTURE
OBLIGATIONS OF GRANTOR TO LENDER WHICH ARE
CONTRACTUAL IN NATURE. THE TOTAL PRINCIPAL
AMOUNT OF THE OBLIGATIONS WHICH MAY BE
SECURED HEREBY IS $1,360,000. THIS DEED OF
TRUST IS GOVERNED BY SECTION 443.055 X.X.XX.
THIS DEED OF TRUST is made this 29th day of July,
1996, among the Grantor, SYSTEMS & SERVICES
TECHNOLOGIES, INC., a Delaware corporation, (herein
"Grantor"), 0000 Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxx 00000,
the Trustee, XXXXX X. XXXX (herein "Trustee"), and the
Beneficiary, COMMERCE BANK, N.A., a national banking
association, organized and existing under the laws of the United
States of America, whose address is 0000 Xxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000 (herein "Lender").
GRANTOR, in consideration of the indebtedness herein
recited and the trust herein created, irrevocably grants, bargains,
sells, conveys and confirms to Trustee, in trust, with power of
sale, all of the hereinafter described properties, rights and
interest, whether now owned or hereafter acquired (said
properties, rights and interests, together with any additions hereto
that may be subject to the lien of this instrument by means of
supplements hereto being hereinafter called the "Mortgaged
Property"), and in so far as the Mortgaged Property consists of
equipment, accounts, accounts receivable, contract rights, general
intangibles, inventory, fixtures, proceeds of collateral or any
other personal property of any kind or character, Grantor hereby
grants to Lender a security interest in all of Grantor's right, title
and interest therein (all said personal property being hereinafter
sometimes referred to as the "Personal Property Collateral")
namely:
1. The land as further described in Schedule 1 hereto
(the "Land"), and all air space above the surface of the Land,
with the tenements, hereditament, appurtenances, privileges,
easements, franchises, rights, appendages and immunities
thereunto belonging or appertaining.
2. All buildings, improvements and fixtures, and all
other property constituting real property or real estate under the
laws of Missouri, now located, or hereafter erected, upon the
Land (the "Improvements"), including the property constituting
real property or real estate described in Schedule 1 hereto, and
all right, title and interest of Grantor, now owned or hereafter
acquired, in and to (a) any and all strips and gores of land
adjacent to or used in connection with the Land, (b) all land
upon which any such buildings or improvements may now or
hereafter encroach, (c) the land within the streets, roads and
alleys adjoining all such real property, and (d) all and singular
and tenements, hereditament, appurtenances, privileges,
easements, franchises, rights, appendages and immunities
whatsoever belonging to or in any wise appertaining to all such
real property.
3. Any and all fixtures, appliances, machinery and
equipment of any nature whatsoever, and other articles of
property (real, personal or mixed), at any time now or hereafter
acquired, which is (i) attached to or situated in or upon the Land
or other real estate described above or the Improvements with
the intention of being attached to the Mortgaged Property, Land
or Improvements, (ii) used or intended to be used in connection
with the Land or such other real estate if said property is or shall
be affixed thereto, (iii) or financed in whole or in part with the
proceeds of the Loan, including, without limiting the generality
of the foregoing, (a) all building materials, fixtures, building
machinery and building equipment delivered on site to the real
estate during the course of, or in connection with, any
construction of any Improvements, (b) all carpeting, air
conditioners, heating units, ranges, stoves, ovens, disposals, and
dishwashers, and (c) all heating, lighting, refrigeration, plumbing,
electrical lighting, ventilating, incinerating, water heating,
cooking, security, air conditioning and energy management
equipment, (but excluding any furniture, fixtures, equipment,
appliances and equipment not owned by Grantor.
4. Any and all building materials and equipment of
Grantor which is intended to be installed in or on the Mortgaged
Property, Land or Improvements.
5. Any and all water and water rights, ditches and ditch
rights, reservoirs and reservoir rights, stock or interests in water,
irrigation or ditch companies, royalties, minerals, oil and gas
rights, and lease or leasehold interests owned by Grantor, now or
hereafter used or useful in connection with, appurtenant to or
related to the Land or other Mortgaged Property or any part
thereof.
6. All leases of the Land or other Mortgaged Property or
any part thereof, whether now existing or hereafter entered into,
and all right, title and interest of Grantor thereunder, including
cash and securities deposited under said leases.
7. All licenses, permits (including building permits),
authorizations or approvals of any type or nature whatsoever,
now owned or held or hereafter acquired, which relate to the use,
development or occupancy of the Land or other Mortgaged
Property or any part thereof.
8. All insurance proceeds and condemnation awards
relating to the Land or other Mortgaged Property or any part
thereof, and any escrow accounts established pursuant to Article
5 of this Deed of Trust.
9. All rents from, all issues, uses, profits, proceeds and
products of, all replacements and substitutions for, and other
rights and interests now or hereafter belonging to, any of the
foregoing.
10. All other estates, easements, franchises, interest,
licenses, rights, titles, powers or privileges of every kind and
character which Grantor now has or may hereafter acquire in and
to the property and interests described above, including without
limitation: (a) all present or future estates, easements, franchises,
interests, leaseholds, licenses, rights, titles, powers and privileges
of Grantor in and to all easements, air rights and other rights-of-
way in connection with the property and interests described
above or any part thereof or as a means of ingress to, or egress
from, the Land or the Improvements or any part thereof, (b) all
present or future estates, easements, franchises, interests,
leaseholds, licenses, rights, titles, powers, and privileges of
Grantor in and to the Land or the Improvements or any part
thereof, (c) all present or future estates, easements, franchises,
interests, leaseholds, licenses, rights, titles, powers, and
privileges, if any, of Grantor, either at law or in equity, in
possession or in expectancy, in and to the real property or air
space, as the case may be, lying in, under, or over the streets,
highways, roads, alleys, ways, sidewalks, skywalks, tunnels, or
avenues, open or proposed, in front of, above, over, under,
through, or adjoining, the Land, and in and to any strips or gores
of real property adjoining the Land, and (d) all present or future
estates, easements, franchises, interests, leaseholds, licenses,
development rights or credits, air rights, solar rights, water, water
rights (whether riparian, appropriative time, or otherwise, and
whether or not appurtenant), water, irrigation or ditch stock
interests, rights, titles, powers, and privileges appurtenant, or
incident to, the Land or the Improvements.
11. Any and all proceeds of any and all of the foregoing
(including, without limitation, payment of proceeds that
constitute property of the types described in paragraphs 3, 4 or 5
above).
TO HAVE AND TO HOLD the Mortgaged Property unto
the Trustee forever, and possession of the Mortgaged Property is
now delivered unto the Trustee, in trust, however, for the
purposes set forth herein.
ARTICLE ONE
SECURED OBLIGATIONS
1.1. Obligations Secured. This Deed of Trust is given to
secure the payment and performance of the following
indebtedness and obligations ("Secured Obligations"), in such
order as Lender may elect:
(a) Payment of present and future indebtedness of
Grantor to Lender whether evidenced by promissory
notes, guaranties or other evidences of indebtedness and
any and all amendments, extensions, modifications,
substitutions, replacements or renewals thereof (all of
which are hereinafter referred to as "Note"), now or
hereafter executed by Grantor, which on their face
contain a statement that they are secured hereby, and the
performance and discharge of each and every obligation
of Grantor set forth in the Note and related documents;
(b) Payment of and the performance and discharge of
each and every obligation of Grantor under that Loan
Agreement, dated the date hereof, by and between
Grantor and Lender ("Loan Agreement"); and
(c) Payment of and the performance and discharge of
each and every obligation of Grantor as provided herein
and in all other agreements of Grantor with Lender,
including without Limitation the Assignment of Rents and
Leases (hereinafter collectively called the "Loan
Documents").
1.2. No Commitment. The specification of a maximum
amount which may be secured hereby is intended solely to
comply with the statutory requirements governing future advance
deeds of trust and shall not be construed as evidence of a
commitment to loan such amount to Grantor, nor shall it limit
the extent of personal liability under any Note. In the event the
Note is in excess of the maximum amount recited above, this
Deed of Trust shall secure the Note to the extent of said amount,
without reduction, until the Note is satisfied in full. Neither the
existence nor priority of this Deed of Trust shall be adversely
affected if at any time prior to the expiration of this Deed of
Trust there are no Secured Obligations or the Secured
Obligations are reduced to nothing.
ARTICLE TWO
GENERAL COVENANTS, REPRESENTATIONS
AND WARRANTIES
2.1. Payment and Performance. Grantor covenants and
agrees to pay and perform each of the Secured Obligations and
to perform, comply with and abide by each and every of the
agreements, conditions and covenants contained and set forth in
this Deed of Trust, the Note, the Loan Agreement and each of
the other Loan Documents.
2.2. Title to Mortgaged Property. Grantor covenants,
agrees and warrants that it has good and marketable fee simple
title to the Mortgaged Property, free and clear of liens and
encumbrances, except for the permitted encumbrances (as set
forth in Schedule 2 hereto) (the "Permitted Encumbrances"), and
that Grantor has good right and lawful authority to Deed of Trust
and convey the same in the manner and form herein set forth.
ARTICLE THREE
MAINTENANCE, ALTERATIONS AND ADDITIONS
3.1. Maintenance of Mortgaged Property; Compliance
with Laws. Grantor covenants and agrees to permit, commit or
suffer no waste and to maintain the improvements on 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. In case of the refusal, neglect or inability of Grantor to
repair and maintain said property, Lender may, at its option,
upon not less than five (5) days prior written notice to Grantor,
make such repairs or cause the same to be made, and advance
monies in that behalf.
3.2. Alterations and Additions. No building or other
property now or hereafter covered by the lien of this Deed of
Trust shall be removed, demolished or materially altered without
the prior written consent of Lender, and no addition to or
structural changes will be made to the Improvements without the
prior written approval of Lender., provided, alterations may be
made in accordance with the Loan Agreement. No fixtures will
be installed on the Mortgaged Property subject to vendor's lien
or other lien, and shall any such fixtures be hereafter installed
the lien of this instrument shall immediately attach and be prior
and superior to liens or claims of others thereon.
ARTICLE FOUR
TRANSFERS, ENCUMBRANCES AND LIENS
4.1. Sale or Transfer of Mortgaged Property. Grantor
agrees that no assignment (by operation of law or otherwise),
sale or contract to sell, transfer, mortgage, conveyance or lease
(except as permitted in the Loan Agreement) shall be made by
Grantor of the Mortgaged Property or any part thereof or any
right, title or interest therein (including, without limitation, any
oil, gas or other mineral interest) without first obtaining the prior
written consent of Lender; provided, however, notwithstanding
the foregoing, upon prior written notice to Lender, Grantor may
make such an assignment, sale or transfer to the Guarantor (as
defined in the Loan Agreement) or any wholly owned subsidiary
of Guarantor, but such assignment, sale or transfer shall be
without release of liability of Grantor.
4.2. Claims Against Mortgaged Property. Grantor will
pay, from time to time when the same shall 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 the Mortgaged Property, whether paramount or
subordinate to this Deed of Trust or any part thereof, or on the
revenues, rents, issues, income and profits arising therefrom and
in general will do or cause to be done everything necessary so
that the lien of this Deed of Trust shall be fully preserved, at the
cost of Grantor, without expense to Lender; provided however,
Grantor shall have the right to contest such claims.
4.3. Subrogation. Lender at its option shall be
subrogated for further security to the lien of any prior
encumbrance, mechanic's or vendor's lien on the Mortgaged
Property paid out of the proceeds of the loan hereby secured,
even though the same be released of record.
ARTICLE FIVE
TAXES AND PUBLIC CHARGES
5.1. Taxes and Public Charges. Grantor, from time to
time when the same shall become due and payable, will pay and
discharge all taxes of every kind and nature (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 it or the Mortgaged Property or any part thereof or upon
the revenues, rents, issues, income and profits of the Mortgaged
Property or arising in respect of the occupancy, use or possession
thereof. Grantor will, upon the request of Lender, deliver to
Lender receipts evidencing the payment of all such taxes,
assessments, levies, fees, rents and other public charges imposed
or assessed against it or the Mortgaged Property or the revenues,
rents, issues, income or profits thereof. Upon demand by
Lender, at any time after the occurrence of an Event of Default
(as hereinafter defined) or at any time if amounts due hereunder
or under any of the other Loan Documents remain outstanding in
excess of thirty (30) days (whether or not subsequently paid),
Grantor agrees to pay to Lender monthly one-twelfth (1/12) of
the estimated amount of the foregoing taxes, assessments and
charges and any balance which shall be required to pay the taxes,
assessments and charges when due. These payments shall be
held in trust by Lender, will not bear interest, and shall be
applied for the payment of the foregoing when due.
ARTICLE SIX
INSURANCE
6.1. Insurance. Grantor will keep the Mortgaged
Property insured and shall maintain such other insurance as is
required under the terms of the Loan Agreement.
6.2. Evidence of Insurance. Grantor shall deliver and
keep in Lender's possession at all times originals of all insurance
policies required hereunder and shall deliver renewals of all such
policies to Lender at least ten (10) days prior to any expiration
or termination thereof. In the event that renewals of policies are
not delivered to Lender ten (10) days or more before the
termination or expiration of the existing policy or policies,
Grantor authorizes Lender to act for it and procure at Grantor's
expense the necessary insurance coverage and agrees to keep
insurance so written in force until its expiration date.
6.3. Insurers and Cancellation. All insurance maintained
pursuant to the terms of this Deed of Trust shall be issued by
insurers of recognized responsibility which are qualified to do
business in the State. Each such policy of insurance shall
provide that it shall not be canceled or terminated for any reason
or modified or amended in any manner so as to reduce the scope
or amount of coverage or increase the deductible amount except
upon thirty (30) days' prior written notice to Lender.
6.4. Casualty. In the event of any casualty, Grantor will
give immediate notice by mail to Lender, and will commence
proof of loss with the casualty insurer. Lender reserves the right
to direct and approve all proof of loss and claims procedures. If
proof of loss is not made promptly by Grantor, Lender is
authorized by Grantor to do so. Each insurance company
concerned is hereby authorized and directed to make payment for
such loss directly to Lender and not to Grantor and Lender
jointly. The insurance proceeds shall be applied, at Lender's
option, either (a) to the reduction of the Secured Obligations (in
such order as Lender determines), principal or interest, whether
matured or unmatured, but only if an Event of Default (as
hereinafter defined) has occurred, or (b) to the restoration and
repair of the damaged Mortgaged Property provided that (i)
Grantor and Lender agree that such restoration and repair is
economically feasible and reasonable, (ii) Grantor and Lender
agree that Lender's security will not be lessened or impaired
thereby, (iii) no Event of Default has occurred and is continuing
and (iv) Grantor and Lender agree that the proceeds shall be
adequate to pay all estimated costs of restoration and repair or
Grantor shall deposit with Lender sums sufficient, in Lender's
opinion, when added to such proceeds, to pay all such estimated
costs. If such proceeds are to be applied to restoration and
repair, Grantor covenants and agrees to promptly commence the
restoration and repair of such damaged Mortgaged Property to as
nearly as possible the same condition as existed prior to such
casualty, except as otherwise approved in writing by Lender, and
to diligently prosecute such restoration and repair to completion,
paying all costs thereof that the insurance proceeds and other
sums deposited by Grantor with Lender may be insufficient to
pay. If at any time or times Lender determines, in Lender's sole
discretion, that the proceeds and such sums deposited by Grantor
may be insufficient to pay in full all estimated costs of
restoration and repair, Grantor shall on demand deposit with
Lender such additional sums as Lender deems necessary to pay
all such estimated costs. Grantor will submit plans and design
and construction contracts for such restoration and repair to
Lender for Lender's prior written approval. The proceeds of
insurance and any sums deposited by Grantor with Lender as
aforesaid shall be held by Lender and disbursed in payment of
the costs of such restoration and repair in accordance with such
procedures and subject to such conditions as Lender shall
require. Any proceeds of insurance in excess of the costs of
restoration and repair shall, at the option of Lender, be applied to
the reduction of the Secured Obligations or paid to the person
legally entitled thereto.
6.5. Rights to Insurance After Foreclosure. In the event
of foreclosure of this Deed of Trust, or other transfer of title in
full or partial satisfaction of the Secured Obligations or any part
thereof, all right, title and interest of Grantor in and to any
insurance policies then in force, and any proceeds thereof, shall
pass to the purchaser or transferee, and Grantor shall not be
entitled to unearned premiums.
ARTICLE SEVEN
CONDEMNATION
7.1. Condemnation. If all or any part of the Mortgaged
Property hereunder be taken or damaged by the exercise of the
power of eminent domain, Grantor may contest the same in good
faith so long as there is not an Event of Default, the award for
any property so taken is hereby assigned to Lender, and Lender,
upon such award becoming final, is hereby authorized, in the
name of Grantor, to execute and deliver acquittances for, and
release of, any such award and to collect the proceeds. If any
part of the Mortgaged Property shall be so taken or damaged,
and such award shall be, at Lender's sole option, either (a)
applied to the reduction of the Secured Obligations (in such
order as Lender determines), principal or interest, whether
matured or unmatured, or (b) (i) if Grantor and Lender agree
that the tenant under the Lease can reasonably continue to
conduct its business on the Mortgaged Property substantially as
conducted prior to the taking or damage, (ii) if Lender
determines, in its sole discretion, that its security will not be
lessened or impaired, (iii) no Event of Default has occurred and
is continuing, and (iv) Lender determines, in its sole discretion,
that the award shall be adequate to pay all estimated costs of
restoration, replacement and repair or Grantor shall deposit with
Lender sums sufficient, in Lender's sole opinion, when added to
such award, to pay all such estimated costs, then such award
shall be used to restore, replace and repair the taken or damaged
Mortgaged Property. If such award is to be applied to
restoration, replacement and repair, Grantor covenants and agrees
to promptly commence the restoration, replacement and repair of
the taken or damaged Mortgaged Property and to diligently
prosecute such restoration, replacement and repair to completion,
paying all costs thereof that the award and other sums deposited
by Grantor with Lender may be insufficient to pay. If at any
time or times Lender determines, in Lender's sole discretion, that
the award and such sums deposited by Grantor may be
insufficient to pay in full all estimated costs of restoration,
replacement and repair, Grantor shall on demand deposit with
Lender such additional sums as Lender deems necessary to pay
all such estimated costs. Grantor will submit plans and design
and construction and other contracts for such restoration,
replacement and repair to Lender for Lender's prior written
approval. The award and any sums deposited by Grantor with
Lender as aforesaid shall be held by Lender and disbursed in
payment of the costs of such restoration, replacement and repair
in accordance with such procedures and subject to such
conditions as Lender shall require. Any portion of the award in
excess of the costs of restoration, replacement and repair shall, at
the option of Lender, be applied to the reduction of the Secured
Obligations or paid to the person legally entitled thereto.
ARTICLE EIGHT
SECURITY AGREEMENT
8.1. Security Agreement. This Deed of Trust, in
addition to being a lien on real estate, is also a security
agreement by and upon all Personal Property Collateral,
including without limitation any collateral listed on any schedule
of collateral attached hereto, and creates a valid security interest
in and lien on all Personal Property Collateral to secure the
payment and performance of the Secured Obligations.
8.2. Remedies of Lender with Respect to Personal
Property Collateral. Upon the occurrence of any Event of
Default, Lender will have all rights and remedies granted by law,
and particularly by the Uniform Commercial Code, including,
without limitation, the right to take possession of all Personal
Property Collateral, and for this purpose Lender may enter upon
any premises on which any or all of the Personal Property
Collateral is situated and take possession of and operate the
Personal Property Collateral (or any portion thereof) or remove it
therefrom. Lender may require Grantor to assemble the Personal
Property Collateral or any part thereof and make it available to
Lender at a place to be designated by Lender which is
reasonably convenient to all parties. Unless the Personal
Property Collateral or any part thereof is perishable or threatens
to decline speedily in value or is of a type customarily sold on a
recognized market, Lender will give Grantor reasonable notice of
the time and place of any public sale or of the time after which
any private sale or other disposition of such Personal Property
Collateral is to be made. This requirement of sending reasonable
notice will be met if the notice is given to Grantor as herein
provided at least five (5) days before the time of the sale or
disposition.
8.3. Remedies of Lender with Respect to Fixtures
Constituting a Part of the Mortgaged Property. Upon the
occurrence of an Event of Default, Lender may elect, with regard
to the fixtures constituting a part of the Mortgaged Property, to
proceed under this Deed of Trust or to exercise such rights as are
provided by the Uniform Commercial Code of Missouri.
ARTICLE NINE
DEFAULT AND REMEDIES
9.1. Events of Default. Any Event of Default as defined
in the Loan Agreement shall constitute an "Event of Default"
hereunder.
9.2. Remedies Upon Default. At any time after an Event
of Default has occurred, the Secured Obligations shall become
due at Lender's option forthwith or thereafter at the continuing
option of Lender, and this Deed of Trust shall remain in force,
and Lender may exercise any right, power or remedy hereunder
or under the Note or Loan Agreement or otherwise permitted to
it by law or by contract, and in particular, without limiting the
generality of the foregoing, Lender shall have the absolute right,
at its option and election, to pursue one or more of the following
rights:
(a) The Trustee, or his successor appointed as hereinafter
provided, may proceed to sell the Mortgaged Property
hereinabove described and any and every part thereof at public
vendue, to the highest bidder for cash, at the east front door of
the Circuit Court House of Xxxxxxxx County, in St. Xxxxxx,
Missouri, after giving at least twenty (20) days public notice of
the time, terms and place of sale, and the property to be sold, by
advertisement in some newspaper printed and published in said
county, or after giving notice for the minimum period and in the
manner provided by statute for such sales at the time of such
notice; and upon such sale shall execute and deliver deed(s)
conveying the Mortgaged Property so sold to the purchaser(s)
thereof, and any statement or recital of fact in any such deed(s)
shall be prima facie evidence of the truth of such statement or
recital, and said Trustee, or his successors in said trust, shall
receive the proceeds of said sale, out of which he shall pay in
the following order: (1) Costs and expenses of executing the trust
created and evidenced hereby, including the usual and reasonable
compensation to the Trustee, his agents and attorneys, for all
services rendered in connection with the trust estate and the sale
thereof; (2) Any past due and accrued, unpaid interest on the
Secured Obligations; (3) All unpaid Secured Obligations (in such
order as Lender determines; and (4) The remainder of such
proceeds of sale, if any, after the satisfaction in full of all
expenses and the Secured Obligations, to the Grantor or to those
lawfully entitled to receive any such remainder. The Trustee
may postpone the sale of all or any parcel of the Mortgaged
Property to a different date or time by public announcement at
the time and place set forth in the notice published.
(b) Lender shall 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 terms of this Deed of Trust, the Note, the Loan Agreement
or any of the other Loan Documents, as the same become due,
without regard to whether or not the principal sum secured, or
any other sums secured, by this Deed of Trust shall be due, and
without prejudice to the right of Lender thereafter to institute
foreclosure, or any other action, for any Event or Events of
Default existing at the time such earlier action was commenced.
9.3. Multiple Foreclosures. Lender shall have the option
to proceed with foreclosure in satisfaction of any part of the
Secured Obligations without declaring the whole of the Secured
Obligations as immediately matured, and such foreclosure may
be made subject to the unmatured part of the Secured
Obligations, and it is agreed that such foreclosure, if so made,
shall not in any manner affect the unmatured part of the Secured
Obligations, but as to such unmatured part this Deed of Trust, as
well as the other Loan Documents, shall remain in full force and
effect just as though no foreclosure had been made. Several
foreclosures may be made without exhausting the right of
foreclosures for any unmatured part of the Secured Obligations,
it being the purpose to provide for a foreclosure of the security
for any matured portion of the Secured Obligations without
exhausting the power of foreclosure respecting Mortgaged
Property for any other part of the Secured Obligations. The
power of sale conferred herein shall survive until all of the
Mortgaged Property has been conveyed by the Trustee or his
successor free from defects. When necessary to effect the
purpose of this Deed of Trust, the power of sale shall be
construed to enable successive sales of the Mortgaged Property
or any parcel thereof.
9.4. Entry by Lender. During the continuance of any
Event of Default, Lender personally, or by its agents or
attorneys, may enter into and upon all or any part of the
Mortgaged Property, and each and every part thereof, and may
exclude Grantor, its agents and servants wholly therefrom and,
having and holding the same, may use, occupy and control the
Mortgaged Property, either personally or by its superintendents,
manager, agents, servants, attorneys or receivers; and upon every
such entry, Lender at the expense of the Mortgaged Property, or
Grantor, from time to time, either by purchase, repairs or
construction, may maintain and restore the Mortgaged Property,
thereof it shall become possessed as aforesaid, may complete the
construction or development of any improvements and in the
course of such completion may make such changes in the
contemplated improvements as it may deem desirable and may
insure the same; and likewise, from time to time, at the expense
of the Mortgaged Property, or Grantor, Lender may make all
necessary or proper repairs, renewals and replacements and such
useful alterations, additions, betterments and improvements
thereto and thereon as may seem advisable to Lender; and in
every such case Lender shall have the right to manage and
operate the Mortgaged Property and exercise all rights and
powers of Grantor with respect thereto either in the name of
Grantor or otherwise as it shall deem best; and Lender shall be
entitled to collect and receive all earnings, revenues, rents,
issues, profits and income of the Mortgaged Property and every
part thereof; and after deducting the expenses of conducting the
business thereof and of all maintenance, repairs, renewals,
replacements, alterations, betterments and improvements and
amounts necessary to pay for taxes, assessments, insurance and
prior or other proper charges upon the Mortgaged Property, or
any part thereof, as well as just and reasonable compensation for
the services of Lender and for all attorneys, counsel, agents,
clerks, servants and other employees by it properly engaged and
employed, Lender shall apply the monies arising as aforesaid, to
the payment of the Secured Obligations.
9.5. Appointment of Receiver. Upon the occurrence of
any Event of Default, Lender shall be entitled without notice to
Grantor to apply at any time to a court having jurisdiction
thereof for the appointment of a receiver of the Mortgaged
Property or any part thereof and of all rents, incomes, profits,
issues and revenues thereof, from whatever source derived; and
thereupon it is hereby expressly covenanted and agreed that the
court shall forthwith appoint such receiver with the usual powers
and duties of receivers in like cases; and said appointments shall
be made by the court ex parte as a matter of strict right to
Lender, and without reference to the adequacy or inadequacy of
the value of the Mortgaged Property, or to the solvency or
insolvency of Grantor or any party defendant to such suit.
Grantor hereby specifically waives the right to object to the
appointment of a receiver as aforesaid and hereby expressly
consents that such appointment shall be made ex parte and
without notice to Grantor as an admitted equity and as a matter
of absolute right to Lender. In order to maintain and preserve
the Mortgaged Property and to prevent waste and impairment of
its security, Lender may, at its option, advance monies to the
appointed receiver and all such sums advanced shall become
Secured Obligations and shall bear interest from the date of such
advance at the Default Rate (as specified and defined in the Loan
Agreement).
9.6. Remedies Cumulative. No remedy conferred upon
or reserved to Lender herein or in the Loan Agreement or any of
the other Loan Documents is intended to be exclusive of any
other remedy or remedies, and each and every such remedy shall
be cumulative and shall be in addition to every remedy given to
Lender or now or hereafter existing at law or in equity or by
statute. No delay or omission of Lender to exercise any right or
power accruing upon any Event of Default herein or in the Loan
Agreement or any default under the other Loan Documents shall
impair any such right or power, or shall be construed to be a
waiver of any such default or any acquiescence therein; and
every power and remedy given by this Deed of Trust or in the
Loan Agreement or any of the other Loan Documents to Lender
may be exercised from time to time as often as may be deemed
expedient by Lender. Nothing in this Deed of Trust or in the
Loan Agreement or in any of the other Loan Documents shall
affect the obligation of Grantor to pay its obligations under the
Note and the Loan Agreement in the manner and at the time and
place therein respectively expressed. In the event of foreclosure,
Grantor shall be fully liable for any deficiency.
9.7. No Waiver. Any failure by Lender to insist upon
the strict performance by Grantor of any of the terms and
provisions of this Deed of Trust, the Loan Agreement or the
other Loan Documents shall not be deemed to be a waiver of
any of the terms and provisions hereof, or of the Loan
Agreement or the other Loan Documents, and Lender,
notwithstanding any such failure, shall have the right thereafter
to insist upon the strict performance by Grantor of any and all
the terms and provisions of this Deed of Trust or of the Loan
Agreement or the other Loan Documents to be performed by
Grantor; and Lender may resort for the payment of the Secured
Obligations to the Mortgaged Property or to any other security
therefor held by Lender in such order and manner as Lender may
elect.
9.8. Attornment by Tenant. In the event the Mortgaged
Property or any part thereof is hereafter occupied by a tenant
under a lease, and in the event of any foreclosure hereunder,
such tenant shall, unless otherwise agreed in writing to by
Lender, at the option of the purchaser of the Mortgaged
Property, either (i) immediately surrender possession of the
Mortgaged Property to such purchaser or (ii) agree to attorn to
and to execute an agreement reasonably satisfactory to such
purchaser, which agreement shall recognize such purchaser as the
landlord under such lease.
9.9. Waiver of Redemption and Other Rights. To the
extent permitted by the laws of Missouri, Grantor will not at any
time insist upon, or plead, or in any manner whatever claim or
take any benefit or advantage of, any stay or extension or
moratorium law, any exemption from execution or sale of the
Mortgaged Property or any part thereof, wherever enacted, now
or at any time hereafter in force, which may affect the covenants
and terms of performance of this Deed of Trust, nor claim, take
or insist upon any benefit or advantage of any law now or
hereafter in force providing for the valuation or appraisal of the
Mortgaged Property, or any part thereof, prior to any sale or
sales thereof which may be made pursuant to any provision
herein, or pursuant to the decree, judgment or order of any court
of competent jurisdiction; nor, after any such sale or sales, claim
or exercise any right under any statute heretofore or hereafter
enacted, by any governmental authority or otherwise, to redeem
the property so sold or any part thereof; and Grantor hereby
expressly waives all benefit or advantage of any such law or
laws, and covenants not to hinder, delay or impede the execution
of any power herein granted or delegated to Lender, but to suffer
and permit the execution of every as though no such law or laws
had been made or enacted. Without limiting the generality of
the foregoing, to the extent legally permissible, Grantor waives
all rights of redemption, whether at equity or law, with respect to
the Mortgaged Property. Grantor, for itself and all who claim
under it, waives, to the extent that it lawfully may, all right to
have the Mortgaged Property, or any other assets which secure
the indebtedness hereby secured, marshaled upon any foreclosure
hereof.
9.10. Trustee. Although the Trustee or any successor in
trust hereunder may be or become an agent of, officer of,
attorney for or otherwise connected with the Lender or any
subsequent owner or holder of any Note, such Trustee may act
hereunder and any such owner or holder, including the Lender,
may bid for and purchase any property sold hereunder, as if such
Trustee were entirely disinterested. If publication of notice of
sale hereunder be withdrawn by request of the Grantor, all
expenses of the Trustee with a fee for his attorney in preparation
and publication of such notice shall be paid by Grantor on
demand, and the power of sale granted herein shall in no way be
affected.
ARTICLE TEN
ENVIRONMENTAL COVENANTS
10.1. Definitions. "Hazardous Substances" means and
includes all hazardous and toxic substances (including without
limitation petroleum and petroleum products), pesticides,
infectious wastes, wastes or materials, any pollutants or
contaminants (including, without limitation, PCBs, asbestos and
raw materials which include hazardous constituents), or any other
similar substances, or materials which are included under or
regulated by any now existing or hereafter enacted or
promulgated local, state or federal law, statute, ordinance, rule or
regulation pertaining to environmental protection, regulation,
contamination or clean-up, toxic waste, underground storage
tanks and hazardous substance or material handling, treatment,
storage, use or disposal, including without limitation the
Comprehensive Environmental Response Compensation and
Liability Act ("CERCLA"), the Resource Conservation and
Recovery Act ("RCRA"), state lien or environmental clean-up
statutes, all as exist from time to time (all such laws, statutes,
ordinances, rules and regulations being referred to collectively as
"Environmental Laws").
10.2. Hazardous Substances. Grantor represents and
warrants, after diligent inspection of the Mortgaged Property,
that the Mortgaged Property has never been used as either a
sanitary landfill or as a disposal site for Hazardous Substances
and no Hazardous Substances or underground storage tanks have
been deposited or are located in, under or upon the Mortgaged
Property and no part of the Mortgaged Property is presently
contaminated by Hazardous Substances.
10.3. Adjacent Property. To Grantor's knowledge, no
parcel adjacent to the Mortgaged Property has ever been used as
either a sanitary landfill or as a disposal site for Hazardous
Substances, and no Hazardous Substances or underground storage
tanks have been deposited or are located in, under or upon any
parcel adjacent to the Mortgaged Property and no part of any
parcel adjacent to the Mortgaged Property is presently
contaminated by Hazardous Substances.
10.4. Representation and Warranties. Grantor represents
and warrants that it has not received and does not have actual
notice of any violation or claimed or threatened violation of any
Environmental Laws. Grantor agrees to notify Lender of any
such notice within five (5) business days of receipt. Grantor
hereby covenants and agrees to comply with, operate and at all
times use, keep and maintain the Mortgaged Property and every
part thereof (whether or not such property constitutes a facility,
as defined in CERCLA) in conformance with all Environmental
Laws. Without limiting the generality of the foregoing, Grantor
will not use, generate, treat, store, dispose of or otherwise
introduce any Hazardous Substance into, under or on the
Mortgaged Property or any part thereof nor cause, suffer, allow
or permit anyone else to do so except in accordance with
Environmental Laws.
10.5. Default. Upon any Event of Default, Lender shall
have the right to inspect the Mortgaged Property and, if the
Event of Default is not remedied within thirty (30) days, the
option to obtain an environmental assessment(s) of the
Mortgaged Property. This Deed of Trust also secures the
reasonable cost of such an environmental assessments(s), and all
money so paid, with interest thereon from the date of such
payment at a rate equivalent to the Default Rate (as defined and
specified in the Loan Agreement), shall be a Secured Obligation,
and shall be repaid by Grantor on demand. Grantor agrees that
Lender shall not be responsible for liability caused by the
presence or release of Hazardous Substances during such
inspection and/or an environmental assessment(s), and Grantor
agrees to indemnify and hold Lender harmless from and against
any and all such liability.
10.6. Indemnification. Grantor covenants and agrees to
indemnify and hold Lender, it affiliates, agents, servants and
employees harmless from and against any or all liability, loss,
injury, damage, liens or cost (including reasonable attorney's
fees) whatsoever caused by or relating to any violation or
claimed violation of any of the foregoing representations,
warranties or covenants or any Environmental Laws which
relates to the Mortgaged Property. This indemnification
provision shall survive the satisfaction or release of the lien
hereof, foreclosure, or transfer of title by deed in lieu of
foreclosure or otherwise.
ARTICLE ELEVEN
MISCELLANEOUS
11.1. Protection of Lender's Security. Lender may, at its
option and without waiving its right to accelerate the Secured
Obligations and to foreclose the same, pay either before or after
delinquency any or all of those certain obligations required by
the terms hereof to be paid by Grantor for the protection of the
Deed of Trust or for the collection of any of the Secured
Obligations. All sums so advanced or paid by Lender shall
become Secured Obligations and shall bear interest from the date
thereof at the default rate (as specified and defined in the Loan
Agreement) and become an integral part thereof, subject in all
respects to the terms, conditions and covenants of the Loan
Agreement, and this Deed of Trust, as fully and to the same
extent as though a part of the original indebtedness evidenced by
the Note and the Loan Agreement and secured by this Deed of
Trust, excepting, however, that said sums shall be repaid to
Lender upon demand by Lender to Grantor for said payment.
11.2. Costs and Expenses. Grantor 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 interest
hereof, including without limitation fees and expenses relating to
the examination of title to the Mortgaged Property; title
insurance premiums, costs and expenses; surveys; recording,
documentary, transfer, registration or similar fees or taxes;
revenue stamps; architects' and engineers' services; and
attorneys' fees. Grantor further agrees to pay all and singular
costs, charges and expenses, including attorneys' fees and
abstract costs, reasonably incurred or paid at any time by Lender
because of the failure of Grantor to perform, comply with, and
abide by each and every of the agreements, conditions and
covenants of the Loan Agreement, this Deed of Trust, or any of
the other Loan Documents.
11.3. Successors and Assigns. All of the grants,
covenants, terms, provisions and conditions herein shall run with
the Land and bind and inure to the benefit of, the successors and
assigns of Grantor and the successors and assigns of Lender.
11.4. Grantor's Certificate. Grantor will, within ten (10)
days after the request of Lender, furnish a written statement of
the amount owing on the Secured Obligations. Such statement
shall also include such other certifications as Lender may
require.
11.5. Notices. Except as otherwise provided by
applicable law, all notices, certificates or other communications
hereunder shall be in writing and shall be given as provided for
notices given under the Loan Agreement.
11.6. Corrections and Future Acts. Grantor will, upon
request of Lender, promptly correct any defect, error, or
omission which may be discovered in the contents of this Deed
of Trust or in the execution or acknowledgment hereof, and will
execute, acknowledge, and deliver such further instruments and
do such further acts as may be necessary or as may be
reasonably requested by Lender to carry out more effectively the
purpose of this Deed of Trust, to subject to the lien and security
interest hereby created any of Grantor's properties, rights, or
interest covered or intended to be covered hereby, and to perfect
and maintain such lien and security interest.
11.7. Indemnification. Grantor shall indemnify, defend,
hold harmless and reimburse Lender for any liability, damage, or
expense, including attorneys' fees and amounts paid in
settlement, which Lender may incur or sustain in the execution
of this Deed of Trust or in the doing of any act which it is
required or permitted to do by the terms hereof or by law, and
shall be reimbursed therefor in accordance with the provisions of
Section 11.1. However, Grantor shall not be obligated to
indemnify, defend, hold harmless and reimburse Lender from
any such liabilities, damages or expenses to the extent such are
attributable to the gross negligence or willful misconduct of
Lender or any of its agents, contractors or employees.
11.8. Governing Law. This Deed of Trust shall be
construed according to Missouri law, without reference to the
conflicts of laws principles thereof.
11.9. Severability. If any provision or clause of this
Deed of Trust shall be held or deemed to be or shall, in fact, be
inoperative, invalid or unenforceable as applied in any particular
case or in all cases because it conflicts with any provisions of
any constitution or statute or rule of public policy, or for any
other reason, such determination shall not affect in any way any
other provision or clause herein which can be given effect
without the inoperative, invalid or unenforceable provision or
clause.
11.10. Amendments. No alteration or amendment of this
Deed of Trust shall be effective unless in writing signed by the
parties sought to be charged or bound thereby.
11.11. After-Acquired Property. All rights, title and
interest of Grantor in and to all improvements, betterments,
renewals, substitutes and replacements of and all additions and
appurtenances to, the Mortgaged Property hereafter acquired,
constructed, assembled or placed by Grantor on the Mortgaged
Property, and all conversions of the security constituted thereby,
and any other or additional interest in or to the Mortgaged
Property hereafter acquired by Grantor, immediately upon such
acquisition, construction, assembly, placement or conversion, as
the case may be, and in each such case without any further
mortgage, grant, conveyance or assignment or other act of
Grantor, shall become subject to the lien of this Deed of Trust as
fully and completely, and with the same effect, as though now
owned by Grantor and specifically described in the Granting
Clause hereof.
11.12. Tenancy. By the execution and delivery hereof,
Grantor becomes tenant of the Trustee and any successor in trust
hereunder until a foreclosure sale be held as hereinafter provided
for, at a rental of one cent per month, payable monthly in
advance on demand, upon the condition that he Grantor and all
persons claiming or occupying the Mortgaged Property through
or under Grantor, shall pay said monthly rental on demand and
surrender peaceable possession of the entire Mortgaged Property
to the Trustee or any successor in trust as Trustee hereunder, or
to the purchaser at any foreclosure sale hereunder, within ten
days after such sale and without any notice or demand for such
possession.
11.13. Successor Trustee. The Lender shall have the
right and power successively to remove the above named Trustee
or any successor Trustee and to appoint in writing
(acknowledged and recorded) a successor to such Trustee, which
successor shall succeed to the title and to all of the rights and
powers of the original Trustee.
11.14. Effective Date. The dating of this Deed of Trust
is intended as and for the convenient identification of this Deed
of Trust and is not intended to indicate that this Deed of Trust
was executed and delivered on said date, this Deed of Trust
being executed on the date set forth in the acknowledgment
hereto. This Deed of Trust shall become effective
simultaneously with the effectiveness of the Loan Agreement as
provided for therein.
IN WITNESS WHEREOF, Grantor has duly executed
this Deed of Trust.
SYSTEMS &
SERVICES TECHNOLOGY,
INC., a Delaware corporation
By:_______________________________
Name:___________________________
Title:_____________________________
STATE OF MISSOURI }
} ss.
COUNTY OF XXXXXXX }
On this 29th day of July, 1996, before me personally
appeared ______________________, to me personally know,
who, being by me duly sworn, did say that he is the ______ of
Systems & Services Technologies, Inc., a Delaware corporation,
that the said instrument was signed on behalf of said corporation
by consent of its Board of Directors and that said
___________________ acknowledged said instrument to be the
free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my
hand and affixed my official seal in the County and State
aforesaid, the day and year first above written.
_________________________________
Notary Public
in and for said County and
State
My Commission Expires:
EXHIBIT A
LEGAL DESCRIPTION
A tract of land located in the Southeast Quarter (SE 1/4) of the
Northeast Quarter (NE 1/4) of Section 23, Township 57 North,
Range 35 West, lying West of the West right-of-way of
Interstate Route 29 and North of the North right-of-way of
Xxxxxxx Road, St. Xxxxxx, Xxxxxxxx County, Missouri, more
particularly described as follows: Beginning at a point on the
West line of the Southeast Quarter (SE 1/4) of the Northeast
Quarter (NE 1/4) of Section 23, Township 57 North, Range 35
West, on the North right-of-way line of Xxxxxxx Road, said point
being 33.2 feet North of the Southwest corner of said Southeast
Quarter (SE 1/4) of the Northeast Quarter (NE 1/4); thence
North 84 degrees 57' 55" East along the North right-of-way line
of Xxxxxxx Road for a distance of 373.49 feet; thence continuing
along said North right-of-way South 89 degrees 56' 50" East for
a distance of 199.81 feet; thence continuing along said North
right-of-way South 88 degrees 43' 06" East for a distance of
35.01 feet; thence North 25 degrees 37' 28" East along the
Westerly right-of-way of the access road for a distance of 269.25
feet to the West right-of-way of Interstate 29; thence North 00
degrees 11'56" East along said West right-of-way line along a
cure to the left having a radius of 9549.3 feet of an arc length of
358.42 feet; thence South 89 degrees 59' 55" West for a distance
of 721.60 feet to the West line of the Southeast Quarter (SE 1/4)
of the Northeast Quarter (NE 1/4); thence South 00 degrees 10'
00" East along said West line for a distance of 929.36 feet to the
point of beginning. All in Xxxxxxxx County, Missouri and
subject to all public and private roads and easements.
RED20/2051
