FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT
Exhibit 10.28
(The above space is reserved for Recorder’s Certification.)
FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT
THIS FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT SECURES FUTURE ADVANCES AND FUTURE
OBLIGATIONS AND SHALL BE GOVERNED BY SECTION 443.055 X.X.XX., AS AMENDED. THE TOTAL PRINCIPAL
AMOUNT OF THE PRESENT AND FUTURE ADVANCES AND OBLIGATIONS WHICH MAY BE SECURED HEREBY IS
$2,645,000.
THE REAL PROPERTY ENCUMBERED BY THIS FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT IS
LEGALLY DESCRIBED ON PAGE 2 HEREOF.
THIS FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT (this “Deed of Trust”) is dated as of
this 1st day of September, 2002, by and between SYNERGETICS DEVELOPMENT COMPANY, L.L.C., a Missouri
limited liability company (hereinafter called “Grantor”) having a mailing address of 00 Xxxxxx
Xxxxx, X’Xxxxxx, Xxxxxxxx 00000, and Xxxxxx Xxxxxxxx, as trustee (“Trustee”) having a mailing
address of 0 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, and THE INDUSTRIAL DEVELOPMENT AUTHORITY OF
ST. XXXXXXX COUNTY, MISSOURI, a public corporation as beneficiary (“Beneficiary”) having a mailing
address of 0000 Xxx Xxxxxx Xxxx Xxxxx, Xx. Xxxxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, Grantor is justly indebted to Beneficiary, as evidenced by that promissory note of
Grantor dated as of September 1, 2002 (the “Note”), which Note is in the principal amount of
$2,645,000, provides for interest as therein set forth, and has a stated final maturity date of
September 1, 2002; and
WHEREAS, said Note was executed and delivered pursuant to that Loan Agreement dated as of
September 1, 2002 (the “Loan Agreement”) by and between the Beneficiary and the Grantor;
WHEREAS, Grantor is now or hereafter may become otherwise obligated or indebted to
Beneficiary, and Beneficiary may make future advances to Grantor, and Grantor may incur future
obligations to Beneficiary, whether pursuant to the Note or the Loan Agreement, as specified above
(which Note and Loan Agreement are collectively herein called the “Debt Instruments”); and
WHEREAS, the parties intend that this Deed of Trust shall secure the payment of and
obligations under the Note, as specified above, all obligations of the Grantor under the Loan
Agreement, all obligations of Grantor under this Deed of Trust, and any and all other present and
future indebtedness (principal, interest, fees and other amounts), liabilities and obligations of
Grantor to Beneficiary arising under the Note, the Loan Agreement or any other Debt Instruments,
including any and all amendments, modifications, extensions or renewals thereof, whether now
existing or made or incurred after the date of execution of this Deed of Trust, in the maximum
principal amount (exclusive of sums spent for the reasonable protection of the security of this
Deed of Trust, if any), of $2,645,000 (collectively, the “Indebtedness”);
NOW, THEREFORE, as security for the Indebtedness, and in consideration thereof, and the sum of
Ten Dollars ($10.00) in hand paid, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor by these presents does hereby GRANT, BARGAIN
AND SELL, MORTGAGE, WARRANT, CONVEY AND CONFIRM, ASSIGN, TRANSFER AND SET OVER unto Trustee, his
successors and assigns, IN TRUST, forever, the following described real estate, chattels real,
personal property and other properties, interests and rights, whether now owned or hereafter
acquired by Grantor (collectively, the “Mortgaged Property”) situated in the County of St. Xxxxxxx,
State of Missouri, to-wit:
Xxx 0X-0 xx X’XXXXXX XXXXXXXXX XXXXXX SUBDIVISION OF LOT 7A, as per plat thereof recorded in Plat
Book 38 page 147 of the St. Xxxxxxx County Records.
HAVING a street address of Lot 7A1 of O’Fallon Corporate Center, O’Xxxxxx, Xxxxxxxx 00000; and
TOGETHER with (1) all buildings, improvements and structures at any time, now or hereafter,
erected, situated or placed thereon; (2) all rights, privileges, easements, rights of way,
franchises, tenements, hereditaments, appendages and appurtenances thereunto belonging or in
anywise appertaining; (3) all right, title, interest and estate of Grantor in and to streets,
roads, ways, sidewalks, curbs, alleys and areas adjoining said real estate and portions thereof,
private or public, and whether vacated by law or ordinance (conditionally or otherwise); (4) all
rents, revenues, royalties, income, issues and profits, which are hereby specifically assigned,
transferred and pledged primarily and on a parity with said real estate; (5) all fixtures and
personal property now or at any time hereafter annexed, affixed or attached to said real estate
and/or the buildings, improvements or structures thereon and all replacements, additions and
substitutions thereof or thereto, including (but not limited to) all apparatus, appliances,
machinery, equipment and articles used to supply or provide, or in connection with, heat, gas,
air-conditioning, plumbing, water, lighting, power, elevator, sewerage, cleaning, refrigeration,
cooling, ventilation and sprinkler systems, all water heaters, ranges, stoves, dishwashers and
disposals, all window shades, drapes and drapery equipment and apparatus, all carpeting, tile and
floor coverings, all fire prevention and extinguishing apparatus, all security and access control
apparatus, and all trees, plants and landscaping; (6) except for Permitted Encumbrances (as defined
in the Loan Agreement), all other personal property, whether now owned or hereafter acquired by
Grantor, and used or intended to be used in the possession, occupation or enjoyment thereof, and
all replacements, additions and substitutions thereof and thereto, including (but not limited to)
all furniture, furnishings and equipment, all appliances, all shelving and storage apparatus, all
construction goods and materials whether or not the same have been incorporated into the buildings
or improvements thereon, and all tools, supplies and equipment used in connection with
construction, repair, maintenance, janitorial or groundskeeping services thereon or therefor; (7)
all existing and hereafter created or acquired accounts, contract rights and general intangibles
arising from or relating in any manner to the foregoing or the development or operation thereof;
(8) all books, records, reports, tests, surveys, plans, specifications, permits, licenses and
documents of any kind or nature relating to the foregoing or the development or operation thereof;
and (9) all products and proceeds of any of the foregoing, including, without limitation, insurance
proceeds.
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TO HAVE AND TO HOLD the Mortgaged Property and every part thereof unto Trustee, his successors
and assigns, forever, IN TRUST, nevertheless, to secure the payment of the Indebtedness and the
performance and observance by Grantor of every covenant and condition herein contained.
Representations and Warranties. Grantor hereby represents and warrants to Trustee and Beneficiary:
(i) that it is lawfully seized and possessed of a good and indefeasible title and estate in fee
simple to the Mortgaged Property, and Grantor will forever warrant and defend the title to the
Mortgaged Property and every part thereof unto Trustee and Beneficiary against the claims and
demands of all persons whomsoever; (ii) that the Mortgaged Property and every part thereof is free
and clear of any and all liens, encumbrances and charges of every kind and character, including
liens of general and special taxes and assessments, excepting taxes for the current year which are
not yet due, excepting the lien of this Deed of Trust, and excepting any easements, rights of way
or restrictions of record shown as special exceptions in any title insurance policy insuring this
Deed of Trust; (iii) Grantor has inspected the Mortgaged Property and has researched and
investigated the prior uses of the Mortgaged Property and all adjoining properties and, except as
disclosed in the Phase I Environmental Site Assessment prepared by SDI Engineering, Inc. prior to
the date of execution of this Deed of Trust, no Regulated Substances exist on, in, under or about
the Mortgaged Property or, to the best of Grantor’s knowledge, on any adjoining property; (iv) to
the best of Grantor’s knowledge, the Mortgaged Property has never been used as a waste disposal
site for any Regulated Substances, as a storage site for petroleum products or chemicals, or as a
manufacturing site; (v) to the best of Grantor’s knowledge, no improvements or structures on the
Mortgaged Property contain asbestos or asbestos containing materials (whether or not the same is
friable); (vi) to the best of Grantor’s knowledge, there are not now nor have there ever been any
underground storage tanks on the Mortgaged Property; (vii) Grantor will not allow any person now or
hereafter occupying the Mortgaged Property to bring Regulated Substances onto the Mortgaged
Property or to process or store or dispose of such substances on the Mortgaged Property, except in
the ordinary course of Grantor’s current business and in complete compliance with all applicable
laws and regulations; (viii) Grantor has checked with the applicable federal, state and local
environmental protection offices, and with the local fire department, and there are no complaints
on file or records or investigations or matters pending in said offices or departments alleging,
concerning or indicating the presence or suspected presence, now or at any time in the past, of
Regulated Substances on, in, under or about the Mortgaged Property, and neither the Mortgaged
Property nor the properties adjacent thereto are identified or contained on any listing of actual,
suspected or potential hazardous waste sites; and (ix) shall either remove, close or maintain all
monitoring xxxxx on the Mortgaged Property. The term “Regulated Substance” as used in this Deed of
Trust shall mean those materials and substances defined as hazardous substances in 42 U.S.C. §
9601(14) and all other wastes and substances, now or hereafter defined as hazardous, toxic,
dangerous, or otherwise regulated under any international, federal, state or local laws, rules or
regulations pertaining to environmental pollution, contamination, protection, or waste management,
treatment, storage, handling or disposal, and any other materials or substances, the exposure to
which is prohibited, limited or regulated by any governmental authority or which does or could pose
a hazard to the health or safety of the occupants of the Mortgaged Property or the owners and/or
occupants of any property adjacent thereto, including (but not limited to) explosives, radioactive
materials, asbestos, polychlorinated biphenyls (PCB’s), petroleum products and radon gas.
Covenants. Grantor hereby expressly covenants and agrees with Trustee and Beneficiary that:
| (1) | Payment of Obligations. Grantor will duly pay the Indebtedness secured hereby and all interest thereon, as and when the same shall become due and payable, according to the terms thereof. | |
| (2) | Due on Sale or Encumbrance. Grantor will not, without the prior written consent of Beneficiary, transfer, convey or otherwise part with title to any of the Mortgaged Property, or any portion thereof or ownership interest therein, or create or permit or allow to exist or |
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| to be created any mortgage, deed of trust, pledge or other lien or encumbrance on any of the Mortgaged Property, other than this Deed of Trust and any other mortgages, deeds of trust and pledges in favor of Union Planters Bank, N.A. or any affiliate of Union Planters Bank, N.A., and Grantor will not suffer or permit any mechanic’s or materialmen’s lien or any other lien of any nature whatsoever to attach to any of the Mortgaged Property or to remain outstanding against the same or any part thereof. |
| (3) | Insurance. Grantor shall at all times at the cost and expense of Grantor keep all of the Mortgaged Property of an insurable nature constantly insured against loss or damage as required by Section 5.5 of the Loan Agreement. Grantor shall at all times also maintain at the cost and expense of Grantor comprehensive general liability insurance in such coverage amounts as are required by Section 5.5 of the Loan Agreement. All insurance moneys received on account of any loss or damage to the Mortgaged Property, after deducting therefrom the reasonable charges and expenses paid or incurred in connection with the collection and disbursement of said moneys, may be used and applied as provided in the Loan Agreement. In the event of loss or damage to the Mortgaged Property, Grantor shall give immediate written notice to the insurance carrier and to Beneficiary. Grantor hereby grants to Trustee and Beneficiary acting jointly or severally, full power and authority to make proof of loss under any and all insurance policies, either in the name of Grantor, or in the name or names of Trustee or Beneficiary, and to adjust, settle, collect and receipt for all insurance, and to endorse for and in behalf and in the name of Grantor any check, draft or other instrument received therefor, and to collect the proceeds thereof, and also, if an event of default shall occur hereunder, to collect and receipt for any unearned premiums and to apply same on the Indebtedness secured hereby in such order and manner as Beneficiary may elect. In the event of foreclosure sale, any and all insurance policies may be assigned without consent of Grantor, and Grantor authorizes Trustee or Beneficiary to assign said policies to the purchaser or purchasers at such foreclosure sale, or if Beneficiary so elects, Trustee or Beneficiary may collect any unearned premiums and apply the same on the Indebtedness secured hereby in such order and manner as Beneficiary may elect. | |
| (4) | Indemnity. Grantor will protect, indemnify, defend and hold harmless Trustee and Beneficiary from and against any and all claims, causes of action, suits, liabilities, damages, losses, costs and expenses (including attorneys’ fees), of whatever nature, which may arise or result, directly or indirectly by reason of the use or occupation of the Mortgaged Property or any part thereof or any failure by Grantor to comply with the covenants contained herein. | |
| (5) | Repairs. Grantor will at all times keep and maintain the Mortgaged Property and every part thereof in good order, repair and condition, without any liability of Trustee or Beneficiary to any person for damage for failure to repair or for any other cause, and Grantor will promptly make all needed and proper repairs, restorations, renewals and replacements thereof, so that at all times the value of the Mortgaged Property and every part thereof shall be fully preserved and maintained, and Grantor will not cause or permit any waste on or of the Mortgaged Property or otherwise allow the Mortgaged Property, or any part thereof, to depreciate in value by any act or neglect. | |
| (6) | Compliance. Grantor will not use or suffer or permit to be used the Mortgaged Property or any part thereof in any manner inconsistent with the rights of Trustee or Beneficiary hereunder, or in violation of the provisions of any insurance policy or any rules or regulations of insurance underwriters, and will comply with, and maintain, use and cause the Mortgaged Property to at all times be in compliance with all laws, ordinances, rules, |
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| regulations, orders and directions of any legislative, executive, administrative or judicial body, officer or department applicable to the Mortgaged Property or to the uses or purposes thereof. | ||
| (7) | Condemnation. In the event the Mortgaged Property, or any part thereof, be taken through condemnation Proceedings or by virtue of the exercise of the right of eminent domain or pursuant to governmental action, any and all amounts awarded in any such condemnation proceeding for the taking of the Mortgaged Property, or any part thereof, shall be paid to UMB Bank, N.A., as Trustee (the “Indenture Trustee”) under that certain Indenture of Trust dated as of September 1, 2002 (the “Indenture”) by and between the Beneficiary and the Indenture Trustee, and applied as provided in the Loan Agreement. | |
| (8) | Damage by Third Parties. In the event any part of the Mortgaged Property shall be destroyed or damaged by any party or from any cause whereby Grantor becomes entitled to indemnity or recovery therefor from any third person or persons, all of such sum or sums so due from any such third person or persons shall be paid to the Indenture Trustee and applied as provided in the Loan Agreement. | |
| (9) | Taxes. Grantor hereby covenants and agrees to pay any and all taxes, assessments, liens and other charges that may be levied or assessed against the Mortgaged Property, or any part thereof, prior to the time the same shall become delinquent, and Grantor shall promptly provide Beneficiary with proof of payment thereof. | |
| (10) | Environmental Compliance. Grantor shall at its expense comply and maintain the Mortgaged Property in compliance with any and all national, state, local, judicial or other laws, rules, regulations and orders applicable to the Mortgaged Property with respect to the investigation, remediation, monitoring, release, handling, storage, transportation, discharge and/or removal of Regulated Substances (collectively, “Environmental Laws”), pay immediately when due the cost of removal of any such Regulated Substance which may be located on, in, under or about the Mortgaged Property, and keep the Mortgaged Property free of any lien imposed pursuant to any such Environmental Law. In the event Grantor fails to do so, after notice to Grantor and the expiration of one-half of any cure period permitted under applicable law, rule, regulation or executive order, Beneficiary may declare an event of default to have occurred under this Deed of Trust and cause the Mortgaged Property to be freed from and decontaminated of the Regulated Substance or take or cause to be taken any other action with respect to any such Regulated Substance or the Mortgaged Property to protect its interest therein. Grantor shall give Beneficiary immediate written notice of any environmental enforcement action or any investigation with respect to the existence or potential existence of any Regulated Substance instituted or threatened with respect to the Mortgaged Property. Grantor shall also give Beneficiary immediate written notice of any condition or occurrence on the Mortgaged Property which constitutes a violation of any Environmental Law or would justify a demand for removal or remediation under any Environmental Law. Grantor hereby grants to Beneficiary, its agents and employees access to the Mortgaged Property and the right to (but in no case shall Beneficiary be in any way obligated or required to) remove any Regulated Substance on, in, under or about the Mortgaged Property in violation of the Environmental Laws and to perform such investigation and/or remediation thereon, all at Grantor’s expense and as Beneficiary shall see fit if Grantor fails to do so within a reasonable period of time after written demand therefor from the Beneficiary. Grantor agrees to protect, indemnify, defend and hold harmless Trustee and Beneficiary to the fullest extent allowed by law, from and against all claims, demands, causes of action, suits, losses, damages (including, without |
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| limitation, punitive damages), violations of any Environmental Law, environmental response and clean-up costs, fines, penalties and expenses (including, without limitation, reasonable counsel fees, cost and expenses incurred in investigating and defending against the assertion of such liabilities), of any nature whatsoever, which may be sustained, suffered or incurred by Trustee and/or Beneficiary based upon, or in connection with, or relating to, (i) the ownership or operation of the Mortgaged Property and all activities relating thereto, (ii) any knowing or material misrepresentation or material breach of warranty by Grantor, (iii) any compliance with or investigation, action or proceeding under or violations of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (as amended) or any other Environmental Law, (iv) the presence, remediation, clean-up or removal of any Regulated Substance or evaluation or investigation of any release or threat of release of any Regulated Substance, (v) any loss of or damage to natural resources, including damages to air, surface or ground water, soil and biota, and (vi) any private or governmental suits or court or administrative orders or injunctions relating in any way to any Regulated Substances on, in, under or about the Mortgaged Property, or emanating therefrom. The specific indemnity and covenants contained in this paragraph are in addition to and shall not be construed to narrow or in any way restrict the application of the other indemnities and covenants contained in this Deed of Trust, notwithstanding any overlap in coverage. |
| (11) | Change In Taxation Laws. In the event of the enactment after the date hereof of any law of the State of Missouri or the United States of America imposing a specific tax on notes, bonds, or other evidences of indebtedness or obligations secured by a mortgage or deed of trust on real estate, or in the event the laws now in force relating to taxes on notes, mortgages, bonds, or other evidences of indebtedness or obligations secured by mortgage or deed of trust shall be in any manner changed, or in case such a tax shall be assessed under any existing law, as the result of which Trustee or Beneficiary may become chargeable with the payment of any such taxes, then and in any such event, Grantor covenants and agrees to pay to Trustee or Beneficiary, within thirty (30) days after written notice thereof, the amount of any such tax; provided that if Trustee or Beneficiary shall be required by law to pay any such tax, all moneys so expended shall be due on demand, bear interest at the highest rate set forth in the Debt Instruments (or if no rate is specified, at the maximum lawful rate) and shall be secured hereby. In the event Grantor shall fail to pay or cause to be paid or to reimburse Trustee or Beneficiary for advances as aforesaid to pay any such tax or taxes, or if by such law it should be illegal for Grantor to pay any such tax or taxes, then all of the Indebtedness secured hereby shall, at the option of Beneficiary, become immediately due and payable without further notice, anything herein or in the evidences of any indebtedness or other obligations secured by this Deed of Trust to the contrary notwithstanding; provided, however, that Grantor shall not be required to pay any such tax in excess of an amount which when added to the interest paid by Grantor on the Indebtedness would exceed the maximum lawful rate allowed in the State of Missouri. | |
| (12) | Inspections. Beneficiary, or its agents, representatives or workmen, are authorized to enter at any reasonable time upon or in any part of the Mortgaged Property for the purpose of inspecting the same and/or for the purpose of performing any of the acts it is authorized to perform hereunder. | |
| (13) | Title Disputes. Should the Trustee or Beneficiary be made defendant in any suit involving the title to any of the Mortgaged Property, or involving the validity or priority of the lien of this Deed of Trust, then it is agreed that in every such case an attorneys’ fee in a reasonable amount shall be fixed by the court in which said suit may be pending, and may be adjudged |
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| in favor of the attorney or attorneys of record representing said parties, which fee shall be adjudged against the Grantor, on motion made therein therefor as a part of the costs of such proceedings, and that such reasonable costs and expenses of said parties, shall also be fixed and adjudged as costs therein by the court, and it is agreed that all such fees, costs and expenses of every such proceeding shall be adjudged against said Grantor (if not charged against a party other than the Trustee or the Beneficiary, their successors and assigns), and when so adjudged shall be secured by this Deed of Trust. | ||
| (14) | Cure Payments. If Grantor shall fail to pay any tax, assessment, lien or other charge levied or assessed against the Mortgaged Property, or any part thereof, or shall fail to keep and perform any of the covenants and conditions herein contained, Trustee or Beneficiary, shall be privileged, but shall not be obligated, to pay any such tax, assessment, lien, rent or other charge, to redeem such property from any sale or foreclosure for taxes or assessments or liens, to effect and pay for insurance required hereunder, to perform or pay for any other obligations, and to make such other disbursements as are necessary or advisable in the opinion of Trustee or Beneficiary to cure any default of Grantor hereunder or protect the lien or the rights of Trustee and Beneficiary hereunder; any and all such sums of money advanced for such purposes by Trustee or Beneficiary shall be deemed additional Indebtedness secured by this Deed of Trust and shall be payable on demand with interest accruing from the time so advanced at the highest rate per annum set forth under the Debt Instruments (or if no rate is specified, at the maximum lawful rate), and failure on the part of Grantor to repay the amounts so advanced on demand shall constitute an event of default hereunder; provided, however, nothing herein contained shall be construed as requiring Trustee or Beneficiary to effect such insurance or to advance or expend money or take any action for any of the purposes aforesaid. | |
| (15) | Rent Assignment. This instrument is intended to create an absolute and present assignment to Beneficiary of the items of Mortgaged Property constituting rents, revenues, royalties, income, issues and profits, and not merely the passing of a security interest; provided, that so long as no event of default exists hereunder, Grantor shall have the right and license to collect said rents, revenues royalties, income, issues and profits as the same shall accrue. | |
| (16) | Security Agreement. This instrument is intended to be a security agreement pursuant to the Uniform Commercial Code for any of the items specified as part of the Mortgaged Property which, under applicable law, may be subject to a security interest pursuant to the Uniform Commercial Code, and Grantor hereby grants Beneficiary a security interest in said items, whether now owned or hereafter acquired, and including all products and proceeds of said items. Grantor agrees that Beneficiary may file this instrument, or a reproduction thereof, in the real estate records or other appropriate index, as a financing statement for any of the items specified as part of the Mortgaged Property. Any reproduction of this instrument or of any other security agreement or financing statement shall be sufficient as a financing statement. In addition, Grantor agrees to execute and deliver to Beneficiary, upon Beneficiary’s request, any financing statements, as well as extensions, renewals and amendments thereof, and reproductions of this instrument, in such form as Beneficiary may require to perfect a security interest with respect to said items. Grantor shall pay all costs of filing such financing statements and any extensions, renewals and amendments thereof, and shall pay all reasonable costs and expenses of any record searches for financing statements Beneficiary may reasonably require. Without the prior written consent of Beneficiary, Grantor shall not create or suffer to be created pursuant to the Uniform Commercial Code any other security interest in said items, including |
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| replacements and additions thereto. Upon the occurrence of an event of default as hereinafter provided, Beneficiary shall have the remedies of a secured party under the Uniform Commercial Code and, at Beneficiary’s option, may also invoke the remedies as otherwise provided in this instrument. In exercising any of said remedies, Beneficiary may proceed against the items of real property and any items of personal property specified as part of the Mortgaged Property separately or together and in any order whatsoever, without in any way affecting the availability of Beneficiary’s remedies under the Uniform Commercial Code or of the remedies otherwise provided in this instrument. |
Events of Default; Remedies. If an event of default as specifically set forth herein shall occur,
or in the event any one or more of the following events shall occur (an “event of default”): (a)
If default shall be made in the payment of any of the Indebtedness secured hereby, or any interest
thereon, within fifteen days of the date as and when the same shall become due and payable, whether
by reason of demand, acceleration or otherwise; (b) If default shall be made by Grantor in the due
performance or observance of any covenant, agreement or condition herein contained or required to
be performed or observed by Grantor and such default shall continue for a period of thirty (30)
days after the date of the mailing of a written notice addressed to Grantor at the address
hereinabove set forth, or to such other address as may be designated by Grantor in written notice
delivered to Beneficiary during which time such default is neither cured by Grantor nor waived in
writing by Beneficiary, provided that, if the failure stated in the notice cannot be corrected
within said 30-day period, Beneficiary may, with Bondowner Consent (as defined in that certain
Indenture of Trust dated as of September 1, 2002 by and between Beneficiary and UMB Bank, N.A., as
Trustee), consent in writing to an extension of such time prior to its expiration if corrective
action is instituted by Grantor within the 30-day period and diligently pursued to completion; (c)
If any representation or warranty of Grantor contained herein shall prove to be in any material
respect incorrect or if there shall be any breach of any such representation or warranty; (d) If
the Mortgaged Property or any portion thereof or ownership interest therein is sold, transferred,
assigned or in any manner conveyed without the prior written consent of Beneficiary; (e) If a
default or event of default shall occur under or within the meaning of any other deed of trust or
mortgage covering any of the Mortgaged Property; or (f) If any event of default shall occur under
or within the meaning of the Loan Agreement or under any agreement, document or instrument
(including any guaranty) evidencing or securing any of the Indebtedness secured hereby; (g) If
pursuant to § 443.055 X.X.Xx., as amended, Grantor shall notify Beneficiary of Grantor’s election
to terminate the operation of this Deed of Trust as security for future advances or future
obligations;
THEN, AND IN EACH AND EVERY SUCH EVENT: (1) All of the Indebtedness then outstanding and unpaid
and all accrued and unpaid interest thereon shall, at the option of Beneficiary, become and be due
and payable immediately, anything in the Note or any other Debt Instrument evidencing any of the
Indebtedness or in this Deed of Trust to the contrary notwithstanding; (2) Upon demand of Trustee
or Beneficiary, Grantor shall forthwith surrender to Beneficiary the actual possession of all of
the Mortgaged Property and it shall be lawful (whether or not Grantor has so surrendered
possession) for Beneficiary, either personally or by agents or attorneys, forthwith to enter into
or upon the Mortgaged Property and to exclude Grantor, the agents and servants of Grantor, and all
parties claiming by, through or under Grantor, wholly therefrom, and Beneficiary shall thereupon be
solely and exclusively entitled to possession of said Mortgaged Property and every part thereof,
and to use, operate, manage and control the same, either personally or by managers, agents,
servants or attorneys, to the fullest extent authorized by law; and upon every such entry, the
Beneficiary may, from time to time, at the expense of Grantor, make all necessary and proper
repairs and replacements to the Mortgaged Property as Beneficiary in its discretion sees fit, and
any amounts so expended shall be due on demand, bear interest at the post-maturity rate set forth
in the Note and shall be secured hereby; (3) may make demand for and collect and receive all rents
and income from Mortgaged Property, including rents and income accrued but unpaid prior to the date
of such default, and the receipt of Beneficiary therefor shall be binding on Grantor with respect
to the amount so paid. All sums of
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money received by Beneficiary from rents and income, after
deducting therefrom the reasonable charges and expenses paid or incurred in connection with the
collection and disbursement thereof, shall be applied to the payment of the Indebtedness secured
hereby in such order and manner as specified in the Indenture. Any lessee of the Mortgaged
Property, or any part thereof, shall be fully protected in relying and acting upon the written
statement of Beneficiary to the effect that this Deed of Trust is in default and that Beneficiary
is entitled to receive the rents and income hereunder, notwithstanding any notice to or knowledge
of said lessee to the contrary. Such lessee shall have no duty to determine that any sum paid to
Beneficiary hereunder is properly applied by Beneficiary; (4) Trustee, at the request of
Beneficiary, shall proceed to sell, either by himself or by agent or attorney, the Mortgaged
Property or any part(s) thereof at public vendue or outcry at the customary place to the highest
bidder for cash after first giving notice as required by the statutes of the State of Missouri and
upon such sale Trustee shall receive the proceeds of such sale and shall execute and deliver deed
or deeds or other instruments of conveyance, assignment and transfer to the property sold, to the
purchaser or purchasers thereof; and (5) Trustee and/or Beneficiary may proceed by suit or suits at
law or in equity to enforce the Indebtedness secured hereby and/or to foreclose this Deed of Trust
and in such event Trustee shall be entitled to a reasonable fee for his services and Trustee and
Beneficiary shall be entitled to a reasonable fee for the services of their attorneys and agents,
and for all expenses, costs and outlays. Upon or at any time after the filing of any suit to
foreclose the lien hereof, Beneficiary shall be entitled as a matter of right to the appointment of
a receiver of the Mortgaged Property, either before or after sale, without notice and without
regard to the solvency or insolvency of Grantor at the time of the application for such receiver,
and without regard to the solvency or insolvency of Grantor at the time of the application for such
receiver, and without regard to the then value of the Mortgaged Property, and Trustee, or
Beneficiary, may be appointed as such receiver. Such receiver shall have full power to collect the
rents, issues and profits from the Mortgaged Property and all other powers necessary or incidental
for the protection, possession, control, management and operation of the Mortgaged Property.
In any sale or sales made by Trustee under the power herein granted, or upon any sale or sales
under or by virtue of any judicial proceedings: (i) the whole of the Mortgaged Property, real,
personal and mixed, may be sold in one parcel as an entirety, or the Mortgaged Property may be sold
in separate parcels as may be determined by Trustee in his discretion; (ii) all recitals contained
in any deed or other instrument of conveyance, assignment or transfer made and delivered by Trustee
in pursuance of the powers granted and conferred herein, shall be prima facie evidence of the facts
therein set forth; (iii) such sale or sales shall operate to divest Grantor of all right, title,
interest, claim and demand, either at law or in equity, under statute or otherwise, in and to the
Mortgaged Property and every part thereof so sold and shall be a perpetual bar, both in law or
equity, against Grantor and any and all persons claiming or to claim from, through or under
Grantor; and (iv) Beneficiary may bid for and purchase the Mortgaged Property or any part thereof
and may make payment therefor by presenting to Trustee the Note secured hereby or the other
evidences of the Indebtedness secured hereby so that there may be endorsed as paid thereon the
amount of such bid which is to be applied to the payment of the Indebtedness secured hereby as
herein provided. Each time it shall become necessary to insert an advertisement of foreclosure,
and sale is not had, Trustee shall be entitled to receive the sum of One Hundred Dollars ($100.00)
for services and the amount of all advertising charges from Grantor, all of which shall be further
secured hereby. Upon the foreclosure and/or sale of the Mortgaged Property, or any part thereof,
the proceeds of such sale or sales shall be applied as follows: First, to the cost and expense of
executing this trust, including reasonable compensation of Trustee and reasonable attorneys’ fees
and expenses, outlays for documentary stamps, cost of procuring title insurance commitments,
continuing abstracts, title searches or examinations reasonably necessary or proper; next, to the
payment of any and all advances made by Trustee or Beneficiary, with interest thereon as
hereinabove provided; next, to the payment of the balance of the Indebtedness secured hereby, with
interest thereon as therein provided; and any surplus thereafter shall be paid to Grantor or any
other party legally entitled thereto; provided that in the event the net proceeds of such sale or
sales shall not be sufficient to pay in full the Indebtedness secured hereby, Grantor hereby
promises and agrees to pay any deficiency thereon on demand with interest.
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Grantor shall not apply for or avail itself of any appraisement, valuation, redemption, stay,
extension or exemption laws, or any so-called “moratorium laws”, now existing or hereafter enacted,
in order to prevent or hinder the enforcement or foreclosure of this Deed of Trust, and hereby
waives the benefit of such laws. Grantor, for itself, its successors and assigns, hereby wholly
waives the period of redemption and any right of redemption provided under any existing or future
law in the event of a foreclosure of this Deed of Trust. Grantor, for itself and all who may claim
through or under it, hereby waives any and all right to have the property and estates comprising
the Mortgaged Property marshalled
upon any foreclosure of the lien hereof and hereby agrees that any court having jurisdiction to
foreclose such lien may order the Mortgaged Property sold as an entirety. Grantor hereby waives
any order or decree of foreclosure, pursuant to the rights herein granted, on behalf of the
Grantor, and each and every person acquiring any interest in or title to the Mortgaged Property,
subsequent to the date of this Deed of Trust, and on behalf of all other persons to the extent
permitted by applicable law.
The Trustee may resign at any time by written instrument to that effect delivered to
Beneficiary. Beneficiary shall be entitled to remove, at any time and from time to time, including
any time before, during or after the commencement or completion of any foreclosure proceeding, the
Trustee. In case of the death, removal, resignation, refusal to act or otherwise being unable to
act of the Trustee, Beneficiary shall be entitled to select and appoint a successor Trustee
hereunder by an instrument duly executed, acknowledged and recorded in the manner and form for
conveyances of real estate in the State of Missouri, which recording may occur before, during or
after the commencement or completion of any foreclosure proceeding, and any such successor Trustee
shall thereupon succeed to Trustee as Trustee hereunder and to all of the rights, powers, duties,
obligations and estate of said Trustee as if specifically named herein, provided no defect or
irregularity in the resignation or removal of said Trustee or in the appointment of a successor
Trustee or in the execution and recording of such instrument shall affect the validity of said
resignation, removal or appointment or any act or thing done by such successor Trustee pursuant
thereto. Additionally, whether the recording of the successor Trustee instrument takes place
before, during or after the commencement or completion of any foreclosure proceeding shall have no
effect upon the validity of said proceeding. Trustee shall not be disqualified from acting as
Trustee hereunder or from performing any of the duties of Trustee, or from exercising the rights,
powers and remedies herein granted, by reason of the fact that Trustee is an officer, employee or
stockholder of the Indenture Trustee, or is interested, directly or indirectly, as the holder of
the Note or other Indebtedness secured hereby, Grantor hereby expressly consenting to Trustee
acting as Trustee irrespective of the fact that Trustee might be otherwise disqualified for any of
the foregoing reasons, and that any interest which Trustee or any successor shall have or may
acquire in the Indebtedness secured hereby, or the Mortgaged Property, shall neither interfere with
nor prevent his acting as Trustee or from purchasing said property at said sale or sales, and all
parties waive any objection to Trustee having or acquiring any such interest in the Indebtedness or
Mortgaged Property and continuing to act as Trustee. Trustee covenants faithfully to perform and
fulfill the trust herein created, but shall be liable, however, only for gross negligence or
willful misconduct as determined by a court of competent jurisdiction.
No remedy herein conferred upon or reserved to Trustee or Beneficiary is intended to be
exclusive of any other remedy, but every remedy herein provided shall be cumulative, and shall be
in addition to every other remedy given hereunder or now or hereafter existing at law or in equity,
or by statute; and every power and remedy given by this Deed of Trust to Trustee or to Beneficiary
may be exercised from time to time and as often as may be deemed expedient. No delay or omission
by Trustee or by Beneficiary to exercise any right or power arising from any default shall impair
any such right or power or shall be construed to be a waiver of any default or an acquiescence
therein. In case Trustee shall have proceeded to enforce any right under this Deed of Trust by
foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned
because of waiver or for any other reason, or shall have been determined adversely, then, and in
such and every such case, Grantor and Trustee shall severally and
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respectively be restored to their
former positions and rights hereunder in respect of the Mortgaged Property, and all rights,
remedies and powers of Trustee shall continue as though no such proceedings had been taken. If any
additional sum or sums shall become due and owing, by Grantor to Beneficiary, pursuant to the
provisions hereof, the affidavit of Beneficiary shall be sufficient evidence of the fact that such
additional sums are secured hereby in the amount set forth in such affidavit.
General Provisions. This Deed of Trust and all provisions hereof shall extend to and be binding
upon Grantor and all parties claiming by, through or under Grantor. All covenants and agreements
of Grantor herein shall be joint and several. Grantor acknowledges and agrees that all expenses
and amounts expended
by Trustee and/or Beneficiary or owed to Trustee or Beneficiary under any indemnity in this Deed of
Trust, shall be due as and when incurred, bear interest at the highest rate set forth in the Debt
Instruments (or if no rate is specified, at the maximum lawful rate) and shall constitute
Indebtedness secured hereby, and all indemnities contained in this Deed of Trust shall apply
notwithstanding any negligent conduct or omission of Beneficiary or Trustee (except to the extent
of gross negligence or willful misconduct on the part of Beneficiary or Trustee), are in addition
to any legal liability or responsibility Grantor otherwise has, and shall survive the foreclosure
of this Deed of Trust and the payment of the obligations secured hereunder. The unenforceability
or invalidity of any provision or provisions of this Deed of Trust shall not render any other
provision or provisions herein contained unenforceable or invalid. The term “Beneficiary” shall be
deemed to mean and include the endorsee(s), transferee(s) or the holder(s) at the time being of the
Debt Instruments and/or any of the other Indebtedness secured hereby, and the successors and
assigns of Beneficiary, and the term “Trustee” shall be deemed to mean and include any successors
of the Trustee in the trust hereby created; and the covenants and agreements shall bind and inure
to the benefit of the heirs, executors, personal representatives, successors and assigns of Grantor
and the successors in trust of the Trustee and the endorsee(s), transferee(s), successors and
assigns of Beneficiary. All of the grants, covenants, terms, agreements, provisions and conditions
herein contained shall run with the land. Time is of the essence of all Grantor’s obligations
hereunder. The captions or headings used herein are for the convenience of. the parties and are
not a part of this Deed of Trust. To the extent that proceeds of the Indebtedness secured hereby
or advances under this Deed of Trust are used to pay any outstanding lien, charge or prior
encumbrance against the Mortgaged Property, Beneficiary is hereby subrogated to any and all rights
and liens held by any owner or holder of such outstanding liens, charges and prior encumbrances,
irrespective of whether said liens, charges or encumbrances are released. Trustee hereby lets the
Mortgaged Property to Grantor and assigns until this Deed of Trust be released and satisfied, or
until default be made under the covenants and agreements hereof, upon the following terms, to-wit:
Grantor and all persons claiming or possessing said Mortgaged Property or any part thereof, shall
pay rent therefor during said term at one cent per month, payable on demand, and shall and will
surrender peaceful possession of said premises, and every part thereof, to Trustee immediately upon
such default, and without notice or demand therefor, provided that nothing in this Deed of Trust
shall be construed to prevent the Beneficiary from having and taking every legal means to enforce
payment of the Indebtedness secured hereby, without having first enforced this Deed of Trust;
provided, further that if Grantor shall well and truly pay or cause to be paid to Beneficiary the
Indebtedness secured hereby as and when the same shall become due and payable and this Deed of
Trust is no longer intended to secure future advances and future obligations under Section 443.055
X.X.Xx., as amended, then this trust shall cease and be void and the Mortgaged Property
hereinbefore conveyed shall be released at the cost of Grantor, otherwise to remain in full force
and effect. To the extent that Beneficiary receives any payment on accoun
t of the Indebtedness and
any such payment(s) or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside, subordinated and/or required to be repaid to a trustee, receiver or any
other party under any bankruptcy act, state or federal law, common law or equitable cause, then, to
the extent of such payment(s) received, the Indebtedness or part thereof intended to be satisfied
and any and all liens, security interests, mortgages and/or other encumbrances upon or pertaining
to any assets of Grantor and theretofore created and/or existing in favor of Beneficiary as
security for the payment of such Indebtedness shall be revived and continue in full force and
effect, as if such payment(s) had not been received by Beneficiary and applied on account of the
Indebtedness.
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Loan Agreement to Prevail. In the event of any conflict between the provisions of this Deed of
Trust and the Loan Agreement, the provisions of the Loan Agreement shall prevail.
Entire Agreement. ORAL 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. TO PROTECT THE GRANTOR AND THE BENEFICIARY FROM MISUNDERSTANDING OR DISAPPOINTMENT,
ANY AGREEMENTS THE GRANTOR AND THE BENEFICIARY REACH COVERING SUCH MATTERS ARE CONTAINED IN
THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE
BENEFICIARY AND THE GRANTOR, EXCEPT AS THE BENEFICIARY AND THE GRANTOR MAY LATER AGREE IN WRITING
TO MODIFY IT.
IN WITNESS WHEREOF, Grantor has executed this Future Advance Deed of Trust and Security
Agreement the day and year first above written.
Grantor:
| SYNERGETICS DEVELOPMENT COMPANY, L.L.C. |
||||
| By /s/ Xxxx X. Xxxxx, MANAGER | ||||
| Name: | ||||
| Title: | Manager | |||
STATE OF MISSOURI |
) | |
| ) | SS. | |
COUNTY OF ST. XXXXXXX |
) |
On this 19th day of September, 2002, before me appeared Xxxx X.
Xxxxx, to me personally known, who, being by me duly sworn, did say that he/she is a member
of Synergetics Development Company, L.L.C., a Missouri limited liability company and that said
instrument was signed in behalf of said limited liability company by authority of its members; and
said Manager acknowledged said instrument to be the free act and deed of said limited
liability company.
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.
| (SEAL) [SEAL] | /s/ Xxxxxxx X. Xxxxxx | |||
| Notary Public | ||||
My term expires .
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