MISSOURI FUTURE ADVANCE DEED OF TRUST
AND SECURITY AGREEMENT
SECURING FUTURE ADVANCES AND
FUTURE OBLIGATIONS NOT TO
EXCEED $5,000,000.00 PURSUANT
TO SECTION 443.055 RSMo.
This Missouri Future Advance Deed of Trust and Security Agreement
(hereinafter referred to as "Deed of Trust") entered into this 16th day of
October, 1997, by K-V Pharmaceutical Company, a Delaware corporation
(hereinafter referred to as "Grantor," whether one or more), whose address for
notice hereunder is 0000 Xxxxx Xxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000 to
Xxxxxxxx X. Xxxxx, Hillsboro Title Company, Xxxxxxx 00 xxx 0xx Xxxxxx,
Xxxxxxxxx, XX 00000 ("Trustee"), as trustee for the benefit of LaSalle National
Bank, a national banking association, having a principal office at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Beneficiary").
W I T N E S S E T H:
THIS DEED OF TRUST SECURES FUTURE ADVANCES OR OBLIGATIONS
PURSUANT TO R.S. MO. SECTION 443.055
WHEREAS, Grantor has executed and delivered to Beneficiary a
Reimbursement Agreement effective as of even date herewith (hereinafter as
originally executed and as amended, modified or supplemented from time to time,
the "Reimbursement Agreement"). Capitalized terms used herein and not otherwise
defined shall have the meaning given thereto in the Reimbursement Agreement.
ARTICLE I
DEFINITIONS
I.1 As used herein, the following terms shall have the following
meanings:
(a) Affiliate: As to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person and, if such Person is an individual, any
member of the immediate family (including parents, spouse and children)
of such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any
Person who is controlled by any such member of trust. As used in this
definition, "control" (including, with correlative meanings,
"controlled by" and "under common control with") shall mean possession,
directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or
partnership or other ownership interest, by contract or otherwise).
(b) Beneficiary: LaSalle National Bank, and the subsequent
party or parties, from time to time, to the Reimbursement Agreement.
(c) Debtor Relief Laws: The term Debtor Relief Laws shall mean
any applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, insolvency, reorganization, or similar laws affecting
the rights or remedies of creditors generally, as in effect from time
to time.
(d) Event of Default: Any happening or occurrence described in
Article VI herein.
(e) Escrowed Sums: The amounts paid by Grantor to Beneficiary
pursuant to paragraph 11.14 hereof to be held by Beneficiary in a fund
for the payment of Impositions and insurance premiums.
(f) Financial Statements: The balance sheets, profit and loss
statements, reconciliations of capital and surplus, changes in cash
flow, schedules of sources and applications of funds, and other
financial information of Grantor or the Guarantors heretofore furnished
to Beneficiary or required to be furnished to Beneficiary under the
terms of this Deed of Trust or any other of the Security Documents from
time to time, which statements shall be prepared in accordance with
generally accepted accounting principles consistently applied or such
other form as shall be reasonably acceptable to Beneficiary and shall
be certified by Grantor or the Guarantors, as appropriate.
(g) Fixtures: All materials, supplies, equipment, apparatus
and other items now or hereafter attached to, installed on or in the
Land or the Improvements, or which in some fashion are deemed to be
fixtures to the Land or Improvements under the laws of the State of
Missouri, other than those owned by tenants under any lease. The term
"Fixture" shall include, without limitation, all items of Personalty to
the extent that the same may be deemed fixtures under applicable law.
(h) Governmental Authority: Any and all courts, boards,
agencies, commissions, offices or authorities of any nature whatsoever
for any governmental xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx, xxxxxxxxx,
xxxx or otherwise) whether now or hereafter in existence.
(i) Governmental Requirements: The term Governmental
Requirements shall mean all statutes, laws, ordinances, orders, writs,
injunctions, decrees, rules and regulations of any Governmental
Authority applicable to Grantor, the Mortgaged Property or the
Improvements.
(j) Grantor: The above defined Grantor and any and all
subsequent record or equitable owners of the Mortgaged Property.
(k) Impositions: All real estate and personal property taxes;
water, gas, sewer, electricity and other utility rates and charges;
charges imposed pursuant to any subdivision, planned unit development
or condominium declaration or restrictions; charges for any easement,
license or agreement maintained for the benefit of the Mortgaged
Property, and all other taxes, charges and assessments and any
interest, costs or penalties with respect thereto of any kind and
nature whatsoever which at any time prior to or after the execution
hereof may be assessed, levied or imposed upon the Mortgaged Property
or the ownership, use, occupancy or enjoyment thereof by entities with
the legal right or authority to so assess, levy or impose.
(l) Improvements: Any and all buildings, structures, open
parking areas and other improvements, and any and all accessions,
additions, replacements, substitutions or alterations thereof or
appurtenances thereto, now or at any time hereafter situated, placed or
constructed upon the Land or any part thereof.
(m) Indebtedness: The principal of, including future advances
of said principal amount, interest on and all other amounts and
payments due under or secured by the Reimbursement Agreement and the
other Security Documents, together with all funds hereafter advanced by
Beneficiary to or for the benefit of Grantor (including, without
limiting the generality of the foregoing, advances to protect the
security of and costs of enforcement under the Reimbursement Agreement,
this Deed of Trust or the other Security Documents), and all other
indebtedness of whatever kind or character, direct or indirect,
absolute or contingent, owing or which may hereafter become owing by
Grantor to Beneficiary, whether such indebtedness is evidenced by note,
open account, overdraft, endorsement, surety agreement, guaranty or
otherwise, it being contemplated that Grantor may hereafter become
indebted to Beneficiary in further sum or sums including, without
limitation, the obligation of the Grantor to reimburse the Beneficiary
with interest for all amounts paid by the Beneficiary on account of the
Beneficiary's letter of credit (the "Letter of Credit") in the original
principal amount of Two Million Six Hundred Thousand and 00/100
($2,600,000.00) for the account of Grantor and for the benefit of Xxxx
Xxxxx Bank, a bank with its principal office in St. Louis Missouri, as
trustee under an Indenture of Trust (the "Trust Indenture") between
such trustee and the Industrial Development Authority of the County of
St. Louis, Missouri (the "Issuer") dated as of November 1, 1989,
pursuant to which were issued the Issuer's Private Activity Refunding
and Revenue Bonds Series 1989(F) (K-V Pharmaceutical Company Project).
The total principal amount of Indebtedness secured by this Deed of
Trust, excluding accrued interest (whether or not added to principal)
and costs, fees and charges and further excluding advances described in
subsection 3 of Section 443.055 X.X.Xx. (as the same may be amended
from time to time) and advances by Beneficiary for other purposes
authorized by this Deed of Trust shall not exceed Five Million and
00/100 Dollars ($5,000,000.00).
(n) Land: The real estate or any interest therein described on
Exhibit "A" attached hereto and made a part hereof, together with all
Improvements and fixtures and all rights, titles and interests
appurtenant thereto.
(o) Leases: All of the right, title and interest of Grantor in
and to any and all Real Estate Leases and all leases, subleases,
licenses, concessions or other agreements (written or verbal, now or
hereafter in effect) which grant Grantor an interest in the Personalty.
(p) Legal Requirements: (i) Any and all present and future
judicial decisions, statutes, rulings, rules, regulations, permits,
certificates or ordinances of any Governmental Authority in any way
applicable to Grantor or the Mortgaged Property, including but not
limited to those respecting the ownership, use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction thereof,
(ii) Grantor's presently or subsequently effective by-laws and articles
of incorporation, or any instruments establishing any partnership,
limited partnership, joint venture, trust or other form of business
association (if either, both or all by any of same), (iii) any and all
Leases and other contracts (written or oral) of any nature to which
Grantor may be bound and (iv) any and all restrictions, reservations,
conditions, easements or other covenants or agreements of record
affecting the Mortgaged Property.
(q) Mortgaged Property: The Land, Improvements, Fixtures,
Personalty, Leases and Rents, together with:
(i) all rights, privileges, tenements, hereditaments,
rights-of-way, easements, appendages and appurtenances in
anywise appertaining thereto, and all right, title and
interest of Grantor in and to any streets, ways, alleys,
strips or gores of land adjoining the Land or any part therein
or thereof;
(ii) all betterments, accessions, additions,
appurtenances, substitutions, replacements and revisions
thereof and thereto and all reversions and remainders therein;
(iii) all other interest of every kind and character
which Grantor now has or at anytime hereafter acquires in and
to the above-described real and personal property and all
property which is used in connection therewith, including
rights of ingress and egress, easements, licenses, and all
reversionary rights or interests of Grantor with respect to
such property. In the event the estate of Grantor in and to
any of the Land and Improvements is a leasehold estate, this
conveyance shall include and the lien, security interest and
assignment created hereby shall encumber and extend to all
other, further or additional title, estates, interest or
rights which may exist now or at any time be acquired by
Grantor in or to the property demised under the lease creating
such leasehold estate and including Grantor's rights, if any,
to purchase the property demised under such lease and, if fee
simple title to any of such property shall ever become vested
in Grantor, such fee simple interest shall be encumbered by
this Mortgage in the same manner as if Grantor had fee simple
title to such property as of the date of execution hereof; and
(iv) any and all other security and collateral of any
nature whatsoever, now or hereafter given for the repayment of
the Indebtedness or the performance and discharge of the
Obligations.
As used in this Deed of Trust, the term "Mortgaged Property" is
expressly defined as meaning all or, where the context permits or
requires, any portion of the above and all or, where the context
permits or requires, any interest therein.
(r) Obligations: Any and all of the covenants, warranties,
representations and other obligations (other than to repay the
Indebtedness) made or undertaken by Grantor to Beneficiary, Trustee or
others as set forth in the Security Documents, and/or any other
documents or instruments executed in connection with the Indebtedness.
(s) Permitted Encumbrances: The outstanding liens, easements,
building lines, restrictions, security interests and other matters (if
any) as set forth on Exhibit "B" attached hereto and made a part
hereof, if any, existing financing statements, if any, not required to
be released by Beneficiary of even date herewith and to the extent
permitted pursuant to Section 5.4 of this Deed of Trust, (i) the rights
of the lessors under any Leases other than Real Estate Leases wherein
Grantor is the lessee, (ii) purchase money security interests in
Personalty, and (iii) any financing statements evidencing the
foregoing.
(t) Person: An individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization, government or any agency or political subdivision
thereof, or any other form of entity.
(u) Personalty: All of the right, title and interest of
Grantor in and to all tangible and intangible personal property which
is now or becomes attached to, installed on or placed on or used on or
in connection with or which is acquired for such attachment,
installation, placement or use, or which arises out of the development,
improvement, financing, leasing, sale, operation or use of the Land,
Improvements, Fixtures or other goods located on the Land or
Improvements, and with respect to all of the foregoing, whether now
owned or at any time hereafter acquired, including, but not limited to:
(i) all furnishings, building materials, supplies,
machines, engines, boilers, stokers, pumps, fans, vents,
blowers, dynamos, furnaces, elevators, ducts, shafts, pipes,
furniture, cabinets, shades, blinds, screens; plumbing,
heating, air conditioning, lighting, lifting, ventilating,
refrigerating, cooking, medical, laundry and incinerating
equipment; partitions, drapes, carpets, rugs and other floor
coverings, awnings; call and sprinkler systems, fire
prevention and extinguishing apparatus and equipment, water
tanks, swimming pools, compressors, vacuum cleaning systems;
disposals, dishwashers, ranges, ovens, kitchen equipment,
cafeteria equipment and recreational equipment, to the extent
the same constitutes real property in the state in which the
Mortgaged Property is located;
(ii) all items relating to the design, development,
operation, management and use of the Land, the Improvements
and the Fixtures, including, but not limited to: (w) all names
under which or by which the Land, the Improvements and the
Fixtures, may at any time be owned and operated under, any
such names or any variant thereof, and all goodwill in any way
relating to the Land, the Improvements and the Fixtures; (x)
all permits, licenses, authorizations, variances, trademarks,
service marks, trade names, symbols, land use entitlements,
approvals, consents, clearances, and rights obtained from
governmental agencies issued or obtained in connection with
the Land, the Improvements and the Fixtures; and (y) to the
extent allowed or permitted, all permits, licenses, approvals,
consents, authorizations, franchises and agreements issued or
obtained in connection with the use, occupation or operation
of the Land, the Improvements and the Fixtures; and
(iii) all evidence of ownership of any part of the
Land, the Improvements, and the Fixtures that is owned by
Grantor in common with others, including all water stock
relating to the Land, if any, and all documents or rights of
membership in any owners' or members' association or similar
group having responsibility for managing or operating any part
of the Land;
(iv) any and all construction, development,
financing, guaranty, indemnity, maintenance, management,
service, supply and warranty agreements, commitments,
contracts, subcontracts, insurance policies and the proceeds
therefrom, licenses and bonds now or anytime hereafter arising
from construction on the Land or the use or enjoyment of the
Land and the Improvements including, without limitation,
maintenance agreements, service contracts and all contracts
and agreements for the operation, management and leasing of
the Land and/or the Improvements;
(v) all water, water stock, water capacity or other
water rights, licenses, permits, warranties, irrigation
rights, oil and gas rights, minerals, crops and timber, and
wastewater and storm drainage discharge capacity attributable
or allowable to all or any portion of the Land, the
Improvements;
(vi) all rights, titles and interests in and to all
of the plans, specifications, drawings, surveys, maps and
plats, including, but not limited to, plot plans, foundation
plans, floor plans, elevations, framing plans, cross-sections
of walls, mechanical plans, electrical plans and architectural
and engineering studies and analyses heretofore or hereafter
prepared by any architect or engineer in respect to the Land,
Improvements or Fixtures;
(vii) all of Grantor's right, title and interest in
and to any award, remuneration, settlement of compensation
heretofore made or hereafter to be made by any Governmental
Authority to Grantor, including those for any vacation of,
change of grade in, any streets affecting the Land or the
Improvements;
(viii) all of Grantor's right, title and interest in
and to all proceeds arising from or by virtue of the sale,
lease or other disposal of all or any part of the Mortgaged
Property (consent to same not granted or to be implied
hereby); and, all proceeds (including premium refunds) payable
or to be payable under each policy of insurance relating to
the Mortgaged Property; and
(ix) all additions, accessions, accessories,
amendments, modifications, extensions, renewals and
enlargements, and additions to, substitutions for the products
thereof, and all proceeds, whether cash proceeds or noncash
proceeds, and including insurance and condemnation proceeds,
received when any of the foregoing property described in (i)
through (ix) above (or the proceeds thereof) is sold,
exchanged, leased, licensed, or otherwise disposed of, whether
voluntarily or involuntarily or when earlier received.
Notwithstanding any of the foregoing to the contrary, accounts
receivables for medical services rendered in connection with the
operation of a hospital on the Land are specifically excluded from, and
not covered by the term "Personalty."
(v) Real Estate Leases: All of the lessor's right, title and
interest in and to any and all leases, subleases, licenses, concessions
or other agreements (written or verbal, now or hereafter in effect)
which grant a possessory interest in and to, or the right to extract,
mine, reside in, sell or use the Land, Improvements or Fixtures.
(w) Rents: All of the rents, revenues, income, proceeds,
royalties, profits and other benefits paid or payable for using,
leasing, licensing, possessing, operating from or in, residing in,
selling, mining, extracting or otherwise enjoying or using the
Mortgaged Property.
(x) Security Documents: The Reimbursement Agreement, the
Security Agreement, this Deed of Trust, the Letter of Credit, the
Assignment of Rents and Leases and any and all other documents now or
hereafter executed by Grantor or any other person or party to evidence
or secure the payment of the Indebtedness or the performance and
discharge of the Obligations, as same may be amended.
(y) Trustee: Xxxxxxxx X. Xxxxx, Hillsboro Title Company,
Xxxxxxx 00 xxx 0xx Xxxxxx, Xxxxxxxxx, XX 00000 and any other successor
trustee hereunder.
ARTICLE II
XXXXX
XX.1 For and in consideration of ten dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and for the further consideration of the uses, purposes and trusts
hereinafter set forth, and to secure the punctual payment by Grantor when due,
whether at stated maturity, by acceleration or otherwise of the Indebtedness and
the performance and observance of the Obligations, Grantor has and does hereby
grant, bargain, sell, mortgage, warrant, convey, remise, release, assign,
transfer, grant a security interest in, set over, deliver and confirm unto
Trustee (and, where the nature of any of the following property requires a grant
directly to Beneficiary to create a valid and enforceable security interest,
unto Beneficiary) and his (or its) substitutes, successors and assigns upon the
terms and conditions of this Deed of Trust, with power of sale as provided
herein, all of the estate, right, title and interest of Grantor in, to and under
or derived from the Mortgaged Property whether now owned or hereafter acquired,
including the products and proceeds thereof and additions and accessions
thereto.
ARTICLE III
WARRANTIES AND REPRESENTATIONS
Grantor hereby unconditionally warrants and represents to Beneficiary
as of the date hereof as follows:
III.1 Organization and Power: (a) That Grantor is duly organized, and
validly existing under the laws of the State of Delaware, all in accordance with
applicable Legal Requirements, and the articles of incorporation and by-laws of
Grantor are in full force and effect and have not been amended or changed except
as previously disclosed to Beneficiary in writing; (b) no proceeding is pending,
planned or threatened for the dissolution or annulment of Grantor; (c) all
licenses, filing fees, income and other taxes due and payable by Grantor have
been paid in full; (d) all conditions prerequisite to Grantor doing business in
Missouri have been done; (e) Grantor is in good standing in Delaware and
Missouri; and (f) Grantor has all requisite power and authority to own, lease,
operate and encumber the Mortgaged Property.
III.2 Validity of Documents: The execution, delivery and performance by
Grantor of the Security Documents and the borrowing evidenced by the
Reimbursement Agreement are within Grantor's powers and have been duly
authorized by Grantors and all other requisite corporate action; (b) have
received all (if any) requisite prior governmental approval in order to be
legally binding and enforceable in accordance with the terms thereof; and (c)
will not violate, be in conflict with, result in a breach of or constitute (with
due notice or lapse of time, or both) a default under, any Legal Requirement or
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon Grantor's property or assets, except as contemplated by
the provisions of the Security Documents. The Security Documents constitute
legal, valid and binding obligations of Grantor obligated under the terms of the
Security Documents in accordance with their respective terms, and Grantor has
full and lawful authority to bargain, grant, sell, mortgage, assign, transfer
and convey all of the Mortgaged Property as set forth herein.
III.3 Information: All information, reports, papers and data given to
Beneficiary with respect to Grantor or the Mortgaged Property (excluding any
projections or forecasts) are accurate, complete and correct in all material
respects as of the date hereof and to the best knowledge of Grantor, do not omit
any fact the inclusion of which is necessary to prevent the facts contained
therein from being materially misleading.
III.4 Title to Mortgaged Property and Lien of this Instrument: Grantor
has good and indefeasible title in fee simple to the Land described on Exhibit
"A" attached hereto, and good and indefeasible title to the Improvements, the
Fixtures and Personalty, Leases and Rents, free and clear of any liens, charges,
encumbrances, security interests and adverse claims whatsoever except the
Permitted Encumbrances. This Deed of Trust constitutes a valid, subsisting,
first lien deed of trust on the Land, the Improvements, the Fixtures and a
valid, subsisting first security interest in and to the Personalty, all in
accordance with the terms hereof.
III.5 Taxes and Other Payments: Grantor has filed all federal, state,
county, municipal and city income and other tax returns required to have been
filed by it and has paid all taxes which have become due pursuant to such
returns or pursuant to any assessments received by Grantor, and Grantor does not
know of any basis for any additional assessment in respect of any such taxes.
Grantor has paid or will pay in full in a commercially reasonable time and
manner all sums owing or claimed for labor, material, supplies, personal
property (whether or not constituting a Fixture hereunder) and services of every
kind and character used, furnished or installed in the Mortgaged Property which
Grantor is obligated to pay.
III.6 Litigation: There are no actions, suits or proceedings pending
or, to the knowledge of Grantor, threatened against or affecting the Mortgaged
Property or involving the validity or enforceability of this Deed of Trust or
the priority of the lien and security interest hereof, and no event has occurred
(including specifically Grantor's execution of the Security Documents and its
consummation of the loan represented thereby) which will violate, be in conflict
with, result in the breach of or constitute (with due notice or lapse of time,
or both) a default under, any Legal Requirement or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of Grantor's property other than the lien and security interest created by the
Security Documents.
III.7 The Financial Statements: To the best of Grantor's knowledge the
Financial Statements are true, correct, and complete as of the dates specified
therein and fully and accurately present in all material respects the financial
condition of Grantor as of the date thereof. No material adverse change has
occurred in the financial condition of Grantor since the date of the most recent
Financial Statements delivered to Beneficiary.
III.8 Utilities: All utility services in such capacities as are
necessary for the Mortgaged Property and the operation thereof for their
intended purpose are available to the Mortgaged Property and the operation
thereof for their intended purpose, including water supply, storm and sanitary
sewer facilities, gas, electric and telephone facilities.
III.9 Streets and Parking: All xxxxxxx xxxxx, xxxxxxx, xxxxx, xxx/xx
highways necessary for the full utilization of the Improvements for their
intended purposes have been completed or the necessary rights-of-way therefor
have either been acquired by the appropriate Governmental Authority or have been
dedicated to the public use and accepted by such Governmental Authority.
III.10 Permits: All zoning, utility, building, health and operating
permits (if any) required for the operation of the Improvements have been
obtained and copies of same shall be delivered to Beneficiary.
ARTICLE IV
AFFIRMATIVE COVENANTS
Grantor hereby unconditionally covenants and agrees with Beneficiary as
follows:
IV.1 Payment and Performance: Grantor will pay the Indebtedness as and
when called for in the Security Documents and will perform all of the
Obligations in full and on or before the dates they are to be performed.
IV.2 Existence: Grantor will preserve and keep in full force and effect
its existence, rights, franchises and trade names.
IV.3 Compliance with Legal Requirements: Grantor will promptly and
faithfully comply with, conform to and obey all present and future Legal
Requirements whether or not same shall necessitate structural changes in,
improvements to, or interfere with the use or enjoyment of, the Mortgaged
Property.
IV.4 Payment of Impositions: Subject to the provisions of paragraph
11.14 herein, Grantor will pay and discharge, or cause to be paid and
discharged, the Impositions not later than the earlier of the date same becomes
delinquent, or the day any fine, penalty, interest or cost may be added thereto
or imposed or the day any lien may be filed for the nonpayment thereof (if such
day is used to determine the due date of the respective item); provided,
however, that Grantor may, if permitted by law and pursuant to an agreement with
the taxing entity, pay the Impositions in installments whether or not interest
shall accrue on the unpaid balance of such Impositions. Grantor may in good
faith, in lieu of paying such Impositions as they become due and payable, by
appropriate proceedings, contest the validity thereof. During such contest
Grantor shall not be deemed in default hereunder because of such nonpayment if,
in the case of a contest involving an amount in excess of $100,000, prior to
delinquency of the asserted tax or assessment, Grantor furnishes Beneficiary an
indemnity bond, conditioned that such tax or assessment with interest, cost and
penalties be paid as herein stipulated, secured by a deposit in cash or security
acceptable to Beneficiary or with surety acceptable to Beneficiary, in the
amount of the tax or assessment being contested by Grantor and a reasonable
additional sum to pay all possible costs, interest and penalties imposed or
incurred in connection therewith. Upon conclusion of such contest Grantor shall
promptly pay any amount adjudged by a court of competent jurisdiction to be due,
with all costs, penalties and interest thereon prior to the date such judgment
becomes final or any writ or order is issued under which the Mortgaged Property
may be sold pursuant to such judgment.
IV.5 Repair: Grantor will keep or cause the Mortgaged Property to be
kept in good order and condition consistent with its existing condition,
reasonable wear and tear excepted, and presenting a good appearance and will
make or cause tenants of the Mortgaged Property to make all repairs,
replacements, renewals, additions, betterments, improvements and alterations
thereof and thereto, interior and exterior, structural and nonstructural,
ordinary and extraordinary, foreseen and unforeseen, which are necessary or
reasonably appropriate to keep same in such order and condition, reasonable wear
and tear excepted. Grantor will also use its reasonable efforts to prevent any
act or occurrence which might impair the value or usefulness of the Mortgaged
Property for its intended usages as set forth in any plans and specifications
for the Improvements submitted to Beneficiary or in the Security Documents. In
instances where repairs, replacements, renewals, additions, betterments,
improvements or alterations are required in and to the Mortgaged Property on an
emergency basis to prevent loss, damage, waste or destruction thereof, Grantor
shall proceed to construct same, or cause same to be constructed,
notwithstanding anything to the contrary contained in paragraph 5.2 hereinbelow;
provided, however, that in instances where such emergency measures are to be
taken, Grantor will promptly notify Beneficiary in writing of the commencement
of such emergency measures and, when same are completed, the completion date and
the measures actually taken.
IV.6 Insurance: Grantor shall obtain and maintain insurance upon and
relating to the Mortgaged Property providing the following described insurance
coverage:
(a) Casualty. Fire and casualty insurance insuring against
personal injury and death, loss by fire and such other hazards,
casualties and contingencies (including but not limited to fire,
lightning, hail, windstorm, explosion, malicious mischief, vandalism
and rent loss or business interruption insurance covering loss of
Rents) as are covered by extended coverage policies in effect where the
Land is located and such other risks as may be specified by Beneficiary
from time to time, all in such amounts and with such insurers of
recognized responsibility as are acceptable to Beneficiary; provided,
however, that absent written direction from Beneficiary, such insurance
shall be in an amount not less than the full insurable replacement
value of the Mortgaged Property with no co-insurance liability.
(b) Flood. If, and to the extent that the Mortgaged Property
is located within an area that has been or is hereafter designated or
identified as an area having special flood hazards by the Secretary of
Housing and Urban Development or by such other official as shall from
time to time be authorized by federal or state law to make such
designation pursuant to the National Flood Insurance Act of 1968, as
such act may from time to time be amended and in effect, or pursuant to
any other national or state program of flood insurance, Grantor shall
carry flood insurance with respect to the Mortgaged Property in amounts
not less than the maximum limit of coverage then available with respect
to the Mortgaged Property pursuant to any and all national and state
flood insurance programs with respect to the Mortgaged Property or the
amount of the Indebtedness, whichever is less.
(c) Boiler and Machinery. Boiler and machinery insurance
covering loss or damage to all portions of the Mortgaged Property
comprised of air conditioning and heating systems, other pressure
vessels, machinery, boilers or high pressure piping in an amount and
containing terms acceptable to Beneficiary.
(d) Liability Insurance. Commercial general liability,
automobile liability, worker's compensation, employer liability and
broad form umbrella or excess liability insurance policies against
claims for bodily injury, death or property damage in an amount and
containing terms acceptable to Beneficiary.
Each insurance policy issued in connection with the Mortgaged Property
shall provide, by way of endorsements, riders or otherwise, that proceeds will
be payable to Beneficiary as its interest may appear. All renewal and substitute
policies of insurance or certified copies thereof shall be delivered at the
office of Beneficiary, premiums paid, at least thirty (30) days before
termination of policies theretofore delivered to Beneficiary. If proof of
renewal or re-issuance of any insurance policy required hereunder has not been
received by Beneficiary at least thirty (30) days prior to the expiration of an
existing policy, and Beneficiary gives at least ten (10) days written notice to
Grantor or, if such policy will expire within said ten (10) day period, then
such lesser notice prior to the expiration of the policy as Beneficiary may
reasonably give, Beneficiary shall have the right, but not the obligation, to
make premium payments, at Grantor's expense, to prevent any cancellation,
endorsement, alteration or reissuance, and such payments shall be accepted by
the insurer to prevent same. All such payments by Beneficiary shall be part of
the Indebtedness secured hereby and payable on demand.
IV.7 Restoration Following Casualty: If any act or occurrence of any
kind or nature (including any casualty for which insurance was not obtained or
obtainable) shall result in damage to or loss or destruction of the Mortgaged
Property, Grantor will give notice thereof to Beneficiary. In case of loss in
which the cost of the restoration, repair or replacement (hereinafter referred
to as the "Work") of the Mortgaged Property estimated by Beneficiary shall not
exceed $1,000,000.00 then such proceeds may be used for the prosecution of the
Work in the manner hereinafter provided. If the cost of the Work estimated by
Beneficiary shall exceed $1,000,000.00, Beneficiary, at its option, shall be
entitled to receive and retain the proceeds of the insurance policies, applying
the same upon the Indebtedness; however, if such repairs are essential to
Grantor's ongoing business and the repayment of the Indebtedness, Beneficiary
shall be reasonable in determining whether or not to make such funds available
to pay the cost of the Work. Notwithstanding anything herein to the contrary if
any loss shall occur at anytime when Grantor shall be in default in the
performance of this covenant, Beneficiary shall be entitled to the benefit of
all insurance policies held by or for any Grantor, to the extent as if same had
been made payable to Beneficiary; and upon foreclosure hereunder, Beneficiary
shall become the owner of any insurance proceeds paid or to be paid under said
policies and shall promptly apply such proceeds to reduce the Indebtedness. In
the event Beneficiary elects to make such insurance proceeds available to
Grantor for such purpose, Grantor will promptly and at Grantor's sole cost and
expense and regardless of whether the insurance proceeds (if any) shall be
sufficient for the purpose, commence and continue diligently to completion to
restore, repair, replace and rebuild the Mortgaged Property as nearly as
possible to its value, condition and character immediately prior to such damage,
loss or destruction. In the event insurance proceeds are not made available to
Grantor to restore, repair, replace or rebuild the Mortgaged Property as
aforesaid, Grantor shall not be obligated to perform such work but shall clean
up any damaged areas in a commercially reasonable manner at Grantor's sole cost
and expense.
If the proceeds of the insurance described in Paragraph 4.6 hereinabove
are to be used for the prosecution of the Work, such proceeds shall be paid out
by Beneficiary from time to time to Grantor (or, at the option of Beneficiary,
jointly to Grantor and the persons furnishing labor and/or material incident to
such restoration, repair or replacement or directly to such persons) as the Work
progresses, subject to the following conditions if the cost of the Work exceeds
$100,000.00: (a) an architect or engineer, approved by Beneficiary, shall be
retained by Grantor (at Grantor's expense) and charged with the supervision of
the Work and Grantor shall have prepared, submitted to Beneficiary and secured
Beneficiary's written approval of the plans and specifications for such Work
which shall not be unreasonably withheld or delayed; (b) each request for
payment by Grantor shall be made on ten (10) days prior written notice to
Beneficiary and shall be accompanied by a certificate executed by the architect
or engineer supervising the Work stating, among such other matters as may be
reasonably required by Beneficiary that: (i) all of the Work completed has been
done in compliance with the approved plans and specifications; (ii) the sum
requested is justly required to reimburse Grantor for payments by Grantor to, or
is justly due to, the contractor, subcontractors, materialmen, laborers,
engineers, architects or other persons rendering services or materials for the
Work (giving a brief description of such services and materials); (iii) when
added to all sums previously paid out by Grantor, the sum requested does not
exceed the value of the Work done to the date of such certificate: and (iv) the
amount of insurance proceeds remaining in the hands of Beneficiary plus any
funds deposited with Beneficiary or demonstrated to be available for such
purpose in accordance with subparagraph (f) below, will be sufficient on
completion of the Work to pay for the same in full (giving in such reasonable
detail as the Beneficiary may require an estimate of the cost of such
completion); (c) each request shall be accompanied by waivers of lien
satisfactory in form and substance to Beneficiary covering that part of the Work
completed prior to that part of the Work for which payment or reimbursement is
being requested and by a search prepared by a title company or licensed
abstracter or by other evidence satisfactory to Beneficiary that there has not
been filed with respect to the Mortgaged Property any mechanic's lien or other
lien, affidavit or instrument asserting any lien or any lien rights with respect
to the Mortgaged Property; (d) there has not occurred any Event of Default (as
herein defined) since the hazard, casualty or contingency giving rise to payment
of the insurance proceeds occurred; (e) in the case of the request for the final
disbursement, such request is accompanied by a copy of any Certificate of
Occupancy or other certificate required by any Legal Requirement to render
occupancy of the damaged portion of the Mortgaged Property lawful; and (f) if,
in Beneficiary's reasonable judgment, the amount of such insurance proceeds will
not be sufficient to complete the Work (which determination may be made prior to
or during the performance of the Work), Grantor shall deposit with Beneficiary,
immediately upon a request therefor, or, demonstrate to Beneficiary's reasonable
satisfaction that Grantor has funds available for such purpose in Grantor's
possession (in which event such funds will be the first funds expended to pay
for the Work) an amount of money which when added to such insurance proceeds
will be sufficient, in Beneficiary's reasonable judgment, to complete the Work.
If, upon completion of the Work, any portion of the insurance proceeds has not
been disbursed to Grantor (or one or more of the other aforesaid persons)
incident thereto, Beneficiary shall disburse such balance to Grantor. Nothing
herein shall be interpreted to prohibit Beneficiary from (y) withholding from
each such disbursement ten percent (10%) (or such greater amount, if permitted
or required by any Legal Requirement) of the amount otherwise herein provided to
be disbursed, and then continuing to withhold such sum until the time permitted
for perfecting liens against the Mortgaged Property has expired, at which time
the amount withheld shall be disbursed to Grantor (or to Grantor and/or any
person or persons furnishing labor and/or material for the Work or directly to
such persons), or (z) applying at any time the whole or any part of such
insurance proceeds to the curing of any Event of Default.
IV.8 Leases and Rents: Except in the ordinary course of Grantor's
business (which shall generally include current market conditions at such
location when such events occur), Grantor shall (a) with respect to any proposed
Real Estate Lease, not execute any Real Estate Lease without the prior written
consent of Beneficiary (and which Real Estate Lease shall be only for the
occupancy by the tenant thereunder); (b) not discount any rent payable under any
Real Estate Lease or modify or vary, surrender or terminate, either orally or in
writing, any Real Estate Lease resulting in terms less favorable to Grantor than
those existing as of the date hereof; (c) not cancel any Real Estate Lease
affecting the Mortgaged Property or any part thereof; (d) not voluntarily
terminate, cancel, waive, modify or amend its rights or the obligations of any
party under any of the Real Estate Leases or (e) use all reasonable efforts to
maintain each of the Real Estate Leases in full force and effect during the full
term hereof. With respect to the Real Estate Leases, Grantor shall (i) not
collect any rent payable for a period of more than one (1) month in advance
(except that Grantor may collect the first month's rent at one time prior to the
lease commencement date); (ii) not further assign its interest in, to or under
any Real Estate Lease or the rents payable under any Real Estate Lease and from
the Mortgaged Property to any person or entity; (iii) duly and punctually
perform and comply with any and all representations, warranties, covenants and
agreements expressed as binding upon it under each of the Real Estate Leases;
and (iv) appear and/or defend any action or proceeding involving Grantor arising
under or in any manner connected with any of the Real Estate Leases. Grantor has
executed and delivered to Beneficiary an Assignment of Leases and Rents of even
date herewith granting Beneficiary certain rights with respect to the Mortgaged
Property including, without limiting the generality of the foregoing, the right
to collect Rents directly from the tenants under the Real Estate Leases.
IV.9 Inspection: Grantor will permit Trustee and Beneficiary and their
agents, representatives and employees to inspect the Mortgaged Property during
reasonable business hours, provided such inspection does not unreasonably
interfere with the conduct of business by tenants occupying the Mortgaged
Property. Trustee and Beneficiary will notify Grantor prior to any inspection.
IV.10 Defense of Title: If the title of Trustee to, or the interest of
Beneficiary in, the Mortgaged Property hereby conveyed, or any part thereof,
shall be endangered or shall be attached, directly or indirectly, and in the
event the title insurance company issuing Beneficiary a title insurance policy
is either not defending against such claim or, in Beneficiary's reasonable
opinion, not adequately defending against such claim, Grantor shall, at
Grantor's expense, take all necessary and proper steps for the defense of such
title or interest, including the employment of counsel, the prosecution or
defense of litigation and the compromise or discharge of claims made against
such title or interest in the Mortgaged Property. Grantor will indemnify and
hold Beneficiary harmless from and against any and all loss, cost, damage,
liability or expense (including all court costs and attorneys' fees) incurred by
Beneficiary in protecting its interests hereunder in such an event. In the event
Beneficiary, in Beneficiary's sole discretion, is not satisfied with Grantor's
actions in such regard, Grantor hereby authorizes Beneficiary, at Grantor's
expense, to take all necessary and proper steps for the defense of such title or
interest, including the employment of counsel, the prosecution or defense of
litigation and the compromise or discharge of claims made against such title or
interest in the Mortgaged Property. All such payments by Beneficiary shall be
part of the Indebtedness secured hereby and be payable on demand.
IV.11 Future Impositions: At any time any law shall be enacted imposing
or authorizing the imposition of any tax upon this Deed of Trust or upon any
rights, titles, liens or security interests created hereby or upon the Letter of
Credit, or any part thereof, upon Beneficiary's written request, Grantor shall
immediately pay all such taxes; provided that, in the alternative, upon
Beneficiary's written request, Grantor may, in the event of the enactment of
such a law, and must if it is unlawful for Grantor to pay such taxes, prepay the
amounts due under the Reimbursement Agreement in full within sixty (60) days
after demand therefor by Beneficiary.
IV.12 Estoppel Certificates. Grantor shall, upon request, promptly
furnish, at any time and from time to time a written statement or affidavit, in
such form as may be reasonably required by Beneficiary, stating the amount of
the unpaid balance of funds advanced pursuant to the Letter of Credit.
IV.13 Financial Statements and Reports: Grantor will maintain full and
accurate books of account and other records reflecting the results of its
operations and will furnish or cause to be furnished to Beneficiary those
Financial Statements required pursuant to the Reimbursement Agreement.
ARTICLE V
NEGATIVE COVENANTS
Grantor hereby covenants and agrees with Beneficiary that, until the
entire Indebtedness shall have been paid in full and all of the Obligations
which are then subject to performance and discharge shall have been fully
performed and discharged:
V.1 Use Violations: Grantor will not use, maintain, operate or occupy,
or allow the use, maintenance, operation or occupancy of the Mortgaged Property
in any manner which (a) violates any Legal Requirement, including, without
limitation, Legal Requirements with respect to the disposal of medical waste
products, (b) may be dangerous unless safeguarded as required by law, or (c)
constitutes a public or private nuisance.
V.2 Alterations: Grantor (i) will not commit or permit any waste (as
such term is defined at common law) of the Mortgaged Property and (ii) will not
(subject to the provisions of paragraph 4.5 and 4.7 herein), without the prior
written consent of Beneficiary, make or permit to be made any alterations or
additions to the Mortgaged Property which materially and adversely affect the
structural portions of any Improvements, the exterior side or common areas of
any Improvements, or any areas visible from the exterior or common areas of the
Improvements.
V.3 Replacement of Fixtures and Personalty: Grantor will not, without
the prior written consent of Beneficiary, permit any of the Fixtures or
Personalty to be removed at any time from the Land or Improvements (i) except in
the ordinary course of Grantor's business in a manner that does not materially
adversely affect Grantor's business operations or (ii) unless the removed item
is obsolete, removed temporarily for maintenance and repair or, if removed
permanently, is replaced by an article of equal suitability and value, owned by
Grantor, free and clear of any lien or security interest except such as may be
first approved in writing by Beneficiary.
V.4 No Further Encumbrances: Grantor will not, without the prior
written consent of Beneficiary, create, place, suffer or permit to be created or
placed or, through any act or failure to act, acquiesce in the placing of or
allow to remain, any mortgage, pledge, lien (statutory, constitutional or
contractual), security interest, encumbrance or charge on, or conditional sale
or other title retention agreement, regardless of whether same are expressly
subordinate to the liens of the Security Documents, with respect to the
Mortgaged Property, other than (i) the Permitted Encumbrances, and (ii) leases
of Personalty or Fixtures used on the Mortgaged Property which according to
generally accepted accounting principles consistently applied are capital leases
("Capital Leases"), purchase money security interests in Personalty and Fixtures
used on the Mortgaged Property and leases, which are not Capital Leases, of
Personalty and Fixtures used on the Mortgaged Property, provided that the
liability for the Personalty and Fixtures so leased and so subject to security
interests does not exceed $1,500,000.00, or such greater amount as Beneficiary
may agree to in writing. The foregoing shall not limit the right of tenants
under Real Estate Leases to install removable fixtures subject to security
interests on the Mortgaged Property which can be removed without damage to the
Mortgaged Property and which pursuant to the Real Estate Leases and the written
consent of Grantor obtained prior to installation shall remain the property of
such tenants and shall not be considered part of the Mortgaged Property.
V.5 Zoning; Title Matters: Grantor will not, without Beneficiary's
express prior written consent, (A) initiate or support any zoning
reclassification of the Mortgaged Property or seek any variance under existing
zoning ordinances applicable thereto; (B) modify, amend or supplement any
Permitted Encumbrances; (C) impose any restrictive covenants or any other
encumbrance upon the Mortgaged Property, execute or file any subdivision plat
affecting the Mortgaged Property or consent to the annexation of the Mortgaged
Property to any municipality; or (D) permit or offer the Mortgaged Property to
be used by the public or any person in such manner as might make possible a
claim of adverse usage or possession or of any implied dedication or easement by
prescription.
ARTICLE VI
EVENTS OF DEFAULT
VI.1 Default: Any one or more of the following events shall constitute
an "Event of Default" hereunder and under the Security Documents:
(a) A failure to pay when and as the same shall become due and
payable, whether by maturity or otherwise, any interest, principal or
other amounts required to be paid hereunder or under any of the
Security Documents; which default continues for a period of ten (10)
days after Beneficiary delivers written notice of such failure to
Grantor; provided, however, Beneficiary shall only be obligated to
deliver two such notices within any calendar year and if Beneficiary
has delivered two written notices of prior failures to Grantor within a
calendar year, Beneficiary shall not be obligated to deliver any
additional written notices of subsequent failures within the calendar
year after the two written notices of the prior failures and an Event
of Default shall be deemed to occur automatically upon the subsequent
failure within the calendar year to pay any such sum within ten (10)
days of the date same is due and payable without any notice to Grantor;
(b) Default in the due observance or performance of any of the
terms, covenants or conditions contained in this Deed of Trust or the
Reimbursement Agreement or any of the Security Documents (except for a
default described in subparagraph (a) above) which default continues
for a period of thirty (30) days after Beneficiary delivers written
notice of such default to Grantor;
(c) Any representation or warranty made by Grantor or a
Guarantor to Beneficiary in any of the Security Documents or any
certificate or document furnished to Beneficiary in connection with the
funds advanced pursuant to the Letter of Credit or in furtherance of
the requirements of this Deed of Trust or of any other Security
Document shall be incorrect in any material respect at the time when
made or at the time when reaffirmed or deemed reaffirmed by the terms
of any Security Document;
(d) Subject to Grantor's rights to contest, as set forth in
Section 4.4 hereof, a failure by Grantor to pay or cause to be paid,
before any fine, penalty, interest or cost may be added thereto, all
franchise taxes and charges, and other governmental charges, general
and special, ordinary and extraordinary, unforeseen as well as
foreseen, of any kind and nature whatsoever, in an amount in excess of
$100,000, including but not limited to, assessments for public
improvements or benefits which are assessed, levied, confirmed, imposed
or become a lien upon the Mortgaged Property or any part thereof or
become payable during the term of the Reimbursement Agreement, which
default continues for a period of thirty (30) days after Beneficiary
delivers written notice thereof to Grantor;
(e) Grantor sells, leases (other than leases approved in
writing by Beneficiary), exchanges, assigns, conveys or otherwise
disposes of the Land, Improvements, or Real Estate Leases or any
interest therein, or enters into a written agreement to do so, or
grants or permits to exist any other mortgage, deed of trust or other
lien, charge or encumbrance against the Land, Improvements, or Real
Estate Leases, whether superior or inferior to this Deed of Trust;
(f) Except as permitted in accordance with Section 5.3 or
Section 5.4 above, Grantor sells, leases, exchanges, assigns, conveys
or otherwise disposes of any portion of the Mortgaged Property, other
than the Land, Improvements or Real Estate Leases or any interest
thereon covered by Section 6.1(e) hereof, or enters into a written
agreement to do so, or grants or permits to exist any other lien,
charge or encumbrance against such property, whether superior or
inferior to the liens and security interests in this Deed of Trust, and
such default continues for a period of thirty (30) days after written
notice thereof to Grantor;
(h) Grantor shall be in Default (as that term is defined in
the Reimbursement Agreement);
(i) A receiver, liquidator or trustee of Grantor, a Guarantor
or of the Mortgaged Property or of any substantial portion of the
properties of any of them, shall be appointed and shall not be removed
within thirty (30) days;
(j) A petition in bankruptcy or for reorganization or for
protection under any Debtor Relief Laws shall have been filed against
Grantor, or a Guarantor and the same is not withdrawn, dismissed,
canceled or terminated within sixty (60) days;
(k) Grantor or a Guarantor makes an assignment for the benefit
of creditors or files or consents to the filing of a petition in
bankruptcy or for protection under any Debtor Relief Laws or commences
or consents to the commencement of any proceeding under the Federal
Bankruptcy Code or any other federal or state law, now or hereafter in
effect, relating to the reorganization of Grantor, or a Guarantor or
the arrangement or rearrangement or readjustment of the debts of
Grantor or a Guarantor or having the effect of enjoining or staying the
exercise of rights or remedies by creditors, it being understood that
the filing against any such entity of such a petition by a partner of
such entity, shall be deemed to be a filing with the consent of such
entity;
(l) There is an attachment or sequestration of or relating to
a portion of the Mortgaged Property with a value of more than $500,000
and the same is not promptly discharged within thirty (30) days;
(m) Grantor ceases to do business or terminates its business
of owning and operating a warehouse and general offices on the Land for
any reason whatsoever;
(n) A material default occurs under any other agreement that
Grantor or any Guarantor has with Beneficiary, and such default
continues beyond any applicable grace period and for a period of thirty
(30) days after Beneficiary delivers written notice of such default to
Grantor;
(o) Any suit is filed against Grantor which, if adversely
determined, could substantially impair the ability of Grantor to
perform each and every one of its obligations under and by virtue of
the Security Documents, and Grantor fails to answer such suit and
diligently prosecute the defense of such suit;
(p) Grantor shall default or breach any material Governmental
Requirements pertaining to the Mortgaged Property, and such default
continues for a period of thirty (30) days after Beneficiary delivers
written notice of such default to Grantor;
(q) Grantor shall be in default under the terms of any
document evidencing or securing payment of a debt in excess of $100,000
secured by any lien or security interest on the Mortgaged Property or
Improvements (without implying Beneficiary's consent to the existence,
placing, creating or permitting of any lien or security interest) and
such default continues for a period of thirty (30) days after delivery
of written notice thereof from Beneficiary to Grantor;
(r) The dissolution of Grantor without the immediate
reconstitution of Grantor in a manner so that Beneficiary's rights
hereunder, and Grantor's operations are not materially adversely
affected; and
(s) Any substantial damage to or destruction of the
Improvements shall occur and insurance proceeds (together with other
funds available for such purpose, including funds of Grantor) shall
not, in the reasonable opinion of Beneficiary, be sufficient to restore
or repair the Improvements and pay all extra cost to be incurred such
as additional interest, or if insurance proceeds shall not be paid
within one hundred twenty (120) days after the date of such casualty,
or if Grantor shall fail to promptly commence repair or restoration of
the Improvements and/or thereafter not diligently complete such repair
and restoration within a reasonable time any of which continue for a
period of thirty (30) days after written notice of such default from
Beneficiary to Grantor.
As used in this Section 6.1, the term control as used with respect to
any person or entity shall mean the possession of the power to direct the
management and policies of such entity.
ARTICLE VII
DEFAULT AND FORECLOSURE
VII.1 Remedies: If an Event of Default shall occur and shall continue,
Beneficiary may, at Beneficiary's election and by and through Trustee or
otherwise, exercise any or all of the following rights, remedies and recourses:
(a) Acceleration and Future Advances: Declare the entire
Indebtedness, Principal Balance (defined hereby as meaning the then
unpaid principal balance on the funds advanced under the Letter of
Credit), the accrued interest and any other accrued but unpaid interest
thereon, court costs, and attorney's fees hereunder immediately due and
payable, without (except as specifically set forth herein) notice,
presentment, protest, notice of intent to accelerate, notice of
acceleration, demand or action of any nature whatsoever (each of which
hereby is expressly waived by Grantor), whereupon the same shall become
immediately due and payable. Additionally, Beneficiary shall not be
required to make any further advances under the Letter of Credit or
other Security Documents upon the occurrence of an Event of Default or
an event which, with the giving of notice or passing of time, would
constitute an Event of Default.
(b) Entry on Mortgaged Property: To the extent permitted by
law, with prior notice to Grantor, enter upon the Mortgaged Property
and take exclusive possession thereof and of all books, records and
accounts relating thereto without being guilty of trespass. If Grantor
remains in possession of all or any part of the Mortgaged Property
after an Event of Default and without Beneficiary's prior written
consent thereto, Beneficiary may, without notice to Grantor, invoke any
and all legal remedies to dispossess Grantor, including specifically
one or more actions for forcible entry and detainer, trespass to try
title and writ of restitution. Nothing contained in the foregoing
sentence shall, however, be construed to impose any greater obligation
or any prerequisites to acquiring possession of the Mortgaged Property
after an Event of Default than would have existed in the absence of
such sentence.
(c) Operation of Mortgaged Property: Hold, lease, manage,
operate or otherwise use or permit the use of the Mortgaged Property,
either itself or by other persons, firms or entities, in such manner,
for such time and upon such other terms as Beneficiary may deem to be
prudent and reasonable under the circumstances (making such repairs,
alterations, additions and improvements thereto and taking any and all
other action with reference thereto, from time to time, as Beneficiary
shall deem necessary or desirable) and apply all Rents and other
amounts collected by Trustee in connection therewith in accordance with
the provisions of paragraph 7.4 herein.
(d) Foreclosure and Sale: Upon the acceleration of the
Indebtedness, or at any time thereafter, the Trustee, or his successor
or substitute as hereinafter provided, at the request of Beneficiary,
may enforce this trust and execute the power of sale herein granted in
accordance with applicable law. After advertising the time, place and
terms of the sale of the Mortgaged Property and mailing notices to such
parties and in such form as may then be required by law, and otherwise
complying with applicable laws affecting foreclosure by exercise of the
power of sale granted herein, the Trustee shall sell the Mortgaged
Property at public auction in accordance with such advertisement and
notices at the time and place specified therein, to the highest bidder
for cash, selling all of the Mortgaged Property as an entirety or in
such parcels as the Trustee may elect, and make due conveyance to the
purchaser or purchasers. The recitals in the conveyance to the
purchaser or purchasers shall be full and conclusive evidence of the
truth of the matters therein stated, all prerequisites to said sale
shall be presumed to have been performed in accordance with law, and
such sale and conveyance shall be conclusive against Grantor, its
heirs, successors and assigns.
(e) Trustee or Receiver: Upon, or at any time after,
commencement of foreclosure of the lien and security interest provided
for herein or any legal proceedings hereunder, make application to a
court of competent jurisdiction, as a matter of strict right and
without notice to Grantor or regard to the adequacy of the Mortgaged
Property for the repayment of the Indebtedness, for appointment of a
receiver of the Mortgaged Property, and Grantor does hereby irrevocably
consent to such appointment. Any such receiver shall have all the usual
powers and duties of receivers in similar cases, including the full
power to rent, maintain and otherwise operate the Mortgaged Property
upon such terms as may be approved by the court, and shall apply such
Rents in accordance with the provisions of paragraph 7.4 herein.
(f) Other: Exercise any and all other rights, remedies and
recourses granted under the Security Documents or now or hereafter
existing in equity, at law, by virtue of statute or otherwise,
including, without limiting the generality of the foregoing:
(i) to the extent permitted by law, institute a
proceeding or proceedings, judicial or otherwise, for the
complete foreclosure of this Deed of Trust as a mortgage or
otherwise under any applicable provision of law, in addition
to the statutory power of sale and all other rights and
remedies hereunder;
(ii) institute a proceeding or proceedings for the
partial foreclosure of this Deed of Trust under any applicable
provision of law for the portion of the Indebtedness then due
and payable, subject to the lien of this Deed of Trust
continuing unimpaired and without loss of priority to secure
the balance of the Indebtedness not then due and payable;
(iii) to the extent permitted by applicable law, sell
the Mortgaged Property, and all estate, right, title interest,
claim and demand of Grantor therein, and all right of
redemption thereof, at one or more sales, as an entirety or in
parcels, with such elements of real and/or personal property
(and, to the extent permitted by applicable law, Beneficiary
may elect to deem all of the Mortgaged Property to be real
property for the purposes thereof), and at such time and place
and upon such terms as it may deem expedient, or as may be
required by applicable law, and in the event of a sale, by
foreclosure or otherwise, of less than all of the Mortgaged
Property, this Deed of Trust shall continue as a lien and
security interest on the remaining portion of the Mortgaged
Property;
(iv) institute an action, suit or proceeding in
equity for the specific performance of any of the provisions
contained in the Reimbursement Agreement, this Deed of Trust
or any other of the Security Documents;
(v) xxx and recover a judgment on the Indebtedness as
the same become due and payable, or on account of any default
or defaults by Grantor under the Reimbursement Agreement, this
Deed of Trust or any other of the Security Documents;
(vi) release any portion of the Mortgaged Property
for such consideration as Beneficiary may reasonably require,
without, as to the remainder of the Mortgaged Property, in any
way impairing or affecting the lien or priority of this Deed
of Trust, or improving the position of any subordinate
lienholder with respect thereto, except to the extent that the
Indebtedness shall have been reduced by the actual monetary
consideration, if any, received by Beneficiary for such
release, and may accept by assignment, pledge or otherwise any
other property in place thereof as Beneficiary may require
without being accountable for so doing to any other lienor;
and/or
(vii) take all actions permitted under the Uniform
Commercial Code of the state in which the Mortgaged Property
is located.
If Beneficiary exercises any of the rights or remedies set forth
herein, Beneficiary shall not be deemed to have entered upon or taken possession
of the Mortgaged Property except upon the exercise of its option to do so,
evidenced by its demand and overt act for such purposes, nor shall Beneficiary
be deemed a mortgagee in possession by reason of such entry or taking
possession. Beneficiary will not be liable to account for any action taken
pursuant to any such exercise other than for rents actually received, nor be
liable for any loss sustained by Grantor resulting from any failure to let the
Mortgaged Property, nor from any other act or omission of Beneficiary, except to
the extent such loss is caused by the willful misconduct or gross negligence of
Beneficiary. Grantor hereby consents to, ratifies and confirms the exercise by
Beneficiary of said rights and remedies and appoints Beneficiary as Grantor's
attorney-in-fact, which appointment shall be deemed to be coupled with an
interest and is irrevocable for such purposes.
VII.2 Expenses: In any proceeding, judicial or otherwise, to foreclose
this Deed of Trust or enforce any other remedy of Beneficiary under the
Reimbursement Agreement, this Deed of Trust or any other Security Documents,
there shall be allowed and included as an addition to and a part of the
Indebtedness in the decree for sale or other judgment or decree all reasonable
expenditures and expenses, including attorneys' fees and court costs, which may
be paid or incurred in connection with the exercise by Beneficiary of any of its
rights and remedies and the same shall be secured by this Deed of Trust.
VII.3 Rights Pertaining to Sales: The following provisions shall, to
the extent permitted by law, apply to any sale or sales of all or any portion of
the Mortgaged Property under or by virtue of this Deed of Trust, whether under
the power of sale herein granted or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale:
(A) Trustee may conduct any number of sales from time to time. The
power of sale shall not be exhausted by any one or more of such sales as to any
part of the Mortgaged Property that have not been sold, or by any sale that is
not completed or is defective until the Indebtedness shall have been paid in
full.
(B) Any sale may be postponed or adjourned by public announcement at
the time and place appointed for such sale or for such postponed or adjourned
sale, and sale may be completed at the time and place so announced without
further notice.
(C) After each sale, Trustee, his successors and assigns or an officer
of any court empowered to do so, shall, as required by law, execute and deliver
to the purchaser or purchasers at such sale a good and sufficient instrument or
instruments granting, conveying, and assigning the property and rights sold and
shall receive the proceeds of such sale or sales and apply the same as herein
provided. Beneficiary is hereby appointed the true and lawful attorney-in-fact
of Grantor, which appointment is irrevocable and shall be deemed to be coupled
with an interest, in Grantor's name and stead, to make all necessary
conveyances, assignments, transfers and deliveries of the property and rights so
sold, and for that purpose Beneficiary may execute all necessary instruments to
accomplish the same, and may substitute one or more persons with like power, and
Grantor hereby ratifies and confirms all that said attorney or such substitute
or substitutes shall lawfully do by virtue thereof. Nevertheless, Grantor, if
requested by Beneficiary, shall ratify and confirm any such sale or sales by
executing and delivering to Beneficiary or such purchaser or purchasers, as
applicable, all such instruments as may be advisable, in Beneficiary's judgment,
for the purposes designated in such request.
(D) Any and all statements of fact or other recitals made in any of the
instruments referred to in Subsection (C) of this Section given by Beneficiary
concerning nonpayment of the Indebtedness, occurrence of any Event of Default,
any declaration by Beneficiary that all or any of the Indebtedness is due and
payable, any request to sell, any representation that notice of time, place and
terms of sale and property or rights to be sold was duly given, or that any
other act or thing was duly done by Beneficiary, shall be taken as prima facie
evidence of the truth of the facts so stated and recited.
(E) The receipt of Trustee for the purchase money paid at any such
sale, or the receipt of any other person authorized to give the same, shall be
sufficient discharge therefor to any purchaser of any property or rights sold as
aforesaid, and no purchaser, or its representatives, grantees or assigns, after
paying such purchase price and receiving such receipt, shall be bound to see to
the application of such purchase price or any part thereof upon or for any trust
or purchase of this Deed of Trust or, in any manner whatsoever, be answerable
for any loss, misapplication or nonapplication of any such purchase money, or
part thereof, or be bound to inquire as to the authorization, necessity,
expediency or regularity of any such sale.
(F) Any such sale or sales shall operate to divest all of the estate,
right, title, interest, claim and demand whatsoever, whether at law or in
equity, of Grantor in and to the properties and rights so sold, and shall be a
perpetual bar both at law and in equity against Grantor and any and all persons
claiming or who may claim the same, or any part thereof, by, through or under
Grantor to the fullest extent permitted by applicable law.
(G) Upon any such sale or sales, Beneficiary may bid for and acquire
the Mortgaged Property and, in lieu of paying cash therefor, may make settlement
for the purchase price by crediting against the Indebtedness the amount of the
bid made therefor, after deducting therefrom the expenses of the sale, the cost
of any enforcement proceeding hereunder and any other sum which Beneficiary is
authorized to charge to Grantor under the terms of this Deed of Trust, to the
extent necessary to satisfy such bid.
(H) In the event that Grantor, or any person claiming by, through or
under Grantor, shall transfer or refuse or fail to surrender possession of the
Mortgaged Property after any sale thereof, then Grantor or such person shall be
deemed a tenant at sufferance of the purchaser at such sale, subject to eviction
by means of unlawful detainer proceedings or other appropriate proceedings, and
to any other right or remedy available hereunder or under applicable law.
(I) Upon any such sale, it shall not be necessary for Trustee,
Beneficiary or any public officer acting under execution or order of court to
have present or constructively in its possession any or all of the Mortgaged
Property.
(J) In the event of any sale referred to in this Section, all of the
Indebtedness, if not previously due and payable, immediately thereupon shall,
notwithstanding anything to the contrary in the Reimbursement Agreement, this
Deed of Trust or any other Security Documents, become due and payable.
(K) This instrument shall be effective as a mortgage. If a foreclosure
hereunder shall be commenced by Trustee, Beneficiary may, at any time before the
sale of the Mortgaged Property, direct the Trustee to abandon the sale, and may
institute suit for the collection of the Indebtedness and for the foreclosure of
this Deed of Trust. If Beneficiary shall institute suit for the collection of
the Indebtedness, and for the foreclosure of this Deed of Trust, Beneficiary may
at any time before the entry of final judgment in said suit dismiss the same and
direct the Trustee to sell the Mortgaged Property in accordance with the
provisions of this Deed of Trust. Beneficiary may pursue its rights and remedies
against any guarantor or other party liable for any of the Indebtedness in such
a suit for foreclosure or by separate suit, whether or not the Trustee is also
pursuing a sale under the terms hereof.
VII.4 Application of Proceeds: The purchase money, proceeds or avails
of any sale, together with any other sums which may be held by Beneficiary
hereunder, whether under the provisions of this Article or otherwise, shall,
except as herein expressly provided to the contrary, be applied as follows:
FIRST: To the payment of the costs and expenses of any such sale,
including the commission or statutory fee payable to Trustee, compensation to
Beneficiary, its agents and counsel, and all other liabilities and advances made
or incurred by Beneficiary or Trustee hereunder, together with interest thereon
as provided herein, and all taxes, assessments and other charges, except any
taxes, assessments or other charges subject to which the Mortgaged Property
shall have been sold.
SECOND: Ratably, to the payment in full of the Indebtedness (including
principal, interest, and other sums owed in such order as Beneficiary may
elect).
THIRD: To the extent permitted by applicable law, to be set aside by
Beneficiary as adequate security in its judgment for the payment of sums which
would have been paid by application under clauses First and Second above to
Beneficiary, arising out of an obligation or liability with respect to which
Grantor has agreed to indemnify it, but which sums are not yet due and payable
or liquidated;
FOURTH: The surplus, if any, to whomsoever may be lawfully entitled
thereto.
VII.5 Additional Remedial Provisions: (A) No right or remedy herein
conferred upon or reserved to Beneficiary is intended to be exclusive of any
other right or remedy, and each and every such right or remedy shall be
cumulative and continuing, shall be in addition to every other right or remedy
given under the Reimbursement Agreement, this Deed of Trust or any other of the
Security Documents or now or hereafter existing at law or in equity, and may be
exercised from time to time and as often as may be deemed expedient by
Beneficiary.
(B) No delay or omission by Beneficiary to exercise any right or remedy
hereunder upon an Event of Default shall impair such exercise, or be construed
to be a waiver of any such Event of Default or an acquiescence therein.
(C) The failure, refusal or waiver by Beneficiary of its right to
assert any right or remedy hereunder upon any Event of Default or other
occurrence shall not be construed as waiving such right or remedy upon any other
or subsequent Event of Default or other occurrence.
(D) Beneficiary shall not have any obligation to pursue any rights or
remedies it may have under any other agreement, the Reimbursement Agreement or
any other of the Security Documents prior to pursuing its rights or remedies
under the Reimbursement Agreement, this Deed of Trust or any other of the
Security Documents.
(E) No recovery of any judgment by Beneficiary and no levy of an
execution upon the Mortgaged Property or any other property of Grantor shall
affect, in any manner or to any extent, the lien and security interest of this
Deed of Trust upon the Mortgaged Property, and any liens, rights, powers and
remedies shall continue unimpaired as before.
(F) Beneficiary may resort to any security given by this Deed of Trust
or any other security now given or hereafter existing to secure the
Indebtedness, in whole or in part, in such portions and in such order as it may,
in its discretion, elect, and no such election shall be construed as a waiver of
any of the liens, rights or benefits granted hereunder.
(G) Nothing in the Reimbursement Agreement, this Deed of Trust or any
other of the Security Documents shall be deemed a waiver or a cure of such Event
of Default, and acceptance of any payment less than any amount then due shall be
deemed an acceptance on account only.
(H) In the event that Beneficiary shall have proceeded to enforce any
right or remedy hereunder by foreclosure, sale, entry or otherwise, and such
proceeding shall be discontinued, abandoned, defectively performed or completed
or determined adversely to Beneficiary for any reason, then Grantor and
Beneficiary shall be restored to their former positions and rights hereunder
with respect to the Mortgaged Property, subject to the lien hereof.
VII.6 Waiver of Rights and Defenses: To the full extent Grantor may do
so, Grantor agrees with Beneficiary as follows:
(A) Grantor hereby waives and will not at any time insist on, plead,
claim or take the benefit or advantage of any statute or rule of law now or
hereafter in force providing for any appraisement, valuation, stay, extension,
moratorium or redemption, or of any statute of limitations, and Grantor, for
itself and its successors and assigns, and for any and all persons ever claiming
an interest in the Mortgaged Property, hereby waives and releases all rights of
redemption, valuation, appraisement, notice of intention to mature or declare
due the whole of the Indebtedness, and all rights to a marshaling of the assets
of Grantor, including the Mortgaged Property, or to a sale in inverse order of
alienation, in the event of foreclosure of the liens and security interests
created hereunder.
(B) Grantor hereby waives and shall not have or assert the matters set
forth in subsection (A) of this Section, or to any other matters whatsoever to
defeat, reduce or affect any of the rights or remedies of Beneficiary hereunder,
including sale of the Mortgaged Property for the collection of the Indebtedness
and the payment of the Indebtedness out of the proceeds of sale of the Mortgaged
Property in preference to any other person.
(C) If any statute or rule of law referred to in this Section and now
in force, of which Grantor or any of its successors of assigns and such other
persons claiming any interest in the Mortgaged Property might take advantage
despite this Section, shall hereafter be repealed or cease to be in force, such
statute or rule of law shall not thereafter be deemed to preclude the
application of this Section.
(D) Grantor shall not be relieved of its obligation to pay the
Indebtedness or perform the Obligations at the time and in the manner provided
in the Reimbursement Agreement, this Deed of Trust or any other of the Security
Documents, nor shall the lien, security interest or priority of this Deed of
Trust or any other of the Security Documents be impaired by any of the following
actions, nonactions or indulgences by Beneficiary:
(i) any failure or refusal by Beneficiary to comply with any
request by Grantor, or to consent to any action by Grantor, or to take
any action to foreclose this Deed of Trust or otherwise enforce any of
the provisions of this Deed of Trust or any other of the Security
Documents;
(ii) any release, regardless of consideration, of the whole or
any part of the Mortgaged Property or any other security for the
Indebtedness, or any person liable for payment of the Indebtedness;
(iii) any waiver by Beneficiary of compliance by Grantor with
any provision of the Reimbursement Agreement, this Deed of Trust or any
other of the Security Documents, or consent by Beneficiary to the
performance by Grantor of any action which would otherwise be
prohibited hereunder or thereunder, or to the failure by Grantor to
take any action which would otherwise be required hereunder or
thereunder; and
(iv) any agreement or stipulation, with or without Grantor's
consent, between Beneficiary and any subsequent owner or owners of the
Mortgaged Property or any other security for the Indebtedness,
renewing, extending or modifying the time of payment or the terms of
the Reimbursement Agreement, this Deed of Trust or any other of the
Security Documents (including a modification of any interest rate), and
in any such event Grantor shall continue to be obligated to pay the
Indebtedness at the time and in the manner provided in the
Reimbursement Agreement, this Deed of Trust and the other of the
Security Documents as so renewed, extended or modified, unless
expressly released and discharged by Beneficiary.
ARTICLE VIII
CONDEMNATION
VIII.1 Application of Proceeds: If the Mortgaged Property or any part
thereof, shall be condemned or otherwise taken for public or quasi-public use
under the power of eminent domain, or be transferred in lieu thereof, all
damages or other amounts awarded for the taking, or injury to, the Mortgaged
Property (the "Award") shall be paid to Beneficiary. To enforce its rights
hereunder, Beneficiary shall be entitled to participate in any condemnation
proceedings and to be represented therein by counsel of its own choice, and
Grantor will deliver, or cause to be delivered, to Beneficiary such instruments
as may be requested by it from time to time to permit such participation.
In case of a taking in which the cost of the restoration, repair or
replacement (hereinafter referred to as the "Restoration") of the Mortgaged
Property estimated by Beneficiary shall not exceed $1,000,000 then such Award
may be used for the prosecution of the Restoration in the manner hereinafter
provided. If the cost of the Restoration estimated by Beneficiary shall exceed
$1,000,000, Beneficiary, at its option, shall be entitled to receive and retain
the Award, applying the same upon the Indebtedness. In the event Beneficiary
elects to make such Award available to Grantor for such purpose, Grantor will
(if such work is necessary to the continued operation of the Mortgaged Property
as determined by Beneficiary in its reasonable discretion) promptly and at
Grantor's sole cost and expense and regardless of whether the Award (if any)
shall be sufficient for the purpose, commence and continue diligently to
completion to restore, repair, replace and rebuild the Mortgaged Property as
nearly as possible to its value, condition and character immediately prior to
such taking subject to the conditions and restrictions applicable to Grantor's
use of insurance proceeds contained in the second paragraph of Section 4.7
above.
In the event the Award exceeds the cost of any work to restore, repair,
replace and rebuild the Mortgaged Property, following completion of such work
Beneficiary shall apply such excess to the Indebtedness or, pay such excess to
Grantor if Grantor furnishes Beneficiary with an appraisal acceptable to
Beneficiary concluding that the appraised value of the Mortgaged Property
following such taking and work is at least two times the sum of (i) the
outstanding balance of the funds advanced pursuant to the Letter of Credit and
(ii) the remaining amount which Beneficiary may be obligated to advance under
the Letter of Credit pursuant to the Reimbursement Agreement.
ARTICLE IX
SECURITY AGREEMENT
IX.1 Security Interest: This Deed of Trust shall be construed as a Deed
of Trust on real property, and it shall also constitute and serve as a security
agreement on personal property within the meaning of, and shall constitute until
the grant of this Deed of Trust shall terminate as provided in Article II
hereof, a first and prior pledge and assignment and a first and prior security
interest under the Missouri Uniform Commercial Code as to the property within
the scope thereof and situated in the State of Missouri with respect to the
Personalty, Fixtures, Leases and Rents subject to the Permitted Encumbrances.
Grantor has granted, bargained, conveyed, assigned, transferred and set over,
and by these presents does grant, bargain, convey, assign, transfer and set over
unto Beneficiary a first and prior security interest in and to all of Grantor's
right, title and interest in, to and under the Personalty, Leases and Rents, to
secure the full and timely payment of the Indebtedness and the full and timely
performance and discharge of the Obligations. Upon an Event of Default, Grantor
shall gather all of the Mortgaged Property which is Personalty at a location
designated by Beneficiary for sale pursuant to the terms hereof.
IX.2 Financing Statements: Grantor shall execute and deliver to
Beneficiary, in form and substance satisfactory to Beneficiary, such financing
statements and such further assurances as Beneficiary may, from time to time,
consider reasonably necessary to create, perfect and preserve Beneficiary's
security interest herein granted, and Beneficiary may cause such statements and
assurances to be recorded and filed at such times and places as may be required
or permitted by law to so create, perfect and preserve such security interest.
Pursuant to the Missouri Uniform Commercial Code this Deed of Trust shall be
effective as a Financing Statement filed as a fixture filing from the date of
its filing for record covering the Fixtures and Personalty. The addresses of
Grantor, as Debtor, and Beneficiary, as Secured Party, are as set forth herein.
The above described goods are or are to become fixtures related to the Land and
Improvements of which Grantor is record title owner.
IX.3 Uniform Commercial Code Remedies: Trustee and Beneficiary shall
have all the rights, remedies and recourses with respect to the Personalty,
Fixtures, Leases and Rents afforded a secured party by the aforesaid Missouri
Uniform Commercial Code in addition to, and not in limitation of, the other
rights, remedies and recourses afforded by the Security Documents and at law.
IX.4 No Obligation of Trustee or Beneficiary: The assignment and
security interest herein granted shall not be deemed or construed to constitute
Trustee or Beneficiary as a trustee in possession of the Mortgaged Property, to
obligate Trustee or Beneficiary to operate the Mortgaged Property or attempt to
do the same, or take any action, incur expenses or perform or discharge any
obligation, duty or liability whatsoever under any of the Leases or otherwise.
ARTICLE X
CONCERNING THE TRUSTEE
X.1 No Liability: Trustee shall not be liable for any error or judgment
or act done by Trustee or be otherwise responsible or accountable except for
Trustee's gross negligence or willful misconduct. Trustee shall not be
personally liable in case of entry by him or anyone acting by virtue of the
powers herein granted him upon the Mortgaged Property for debts contracted or
liability or damages incurred in the management or operation of the Mortgaged
Property. Trustee shall have the right to rely on any instrument, document or
signature authorizing or supporting any action taken or proposed to be taken by
him hereunder or believed by him in good faith to be genuine. Trustee shall be
entitled to reimbursement for expenses incurred by him in the performance of his
duties hereunder.
X.2 Retention of Monies: All monies received by Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated in any manner from any other
monies (except to the extent required by law), and Trustee shall be under no
liability for interest on any monies received by him hereunder.
X.3 Successor Trustee: Trustee may resign by the giving of notice of
such resignation in writing to Beneficiary. If trustee shall die, resign or
become disqualified from acting in the execution of this Trust or shall fail or
refuse to exercise the same when requested by Beneficiary so to do or if for any
reason and without cause Beneficiary shall prefer to appoint a substitute
trustee to act instead of the original Trustee named herein, or any prior
successor or substitute trustee, Beneficiary shall have full power to appoint a
substitute trustee and, if preferred, several substitute trustees in succession
who shall succeed to all the estate, rights, powers and duties of the aforenamed
Trustee. If any notice of a foreclosure sale hereunder has been sent or
published, or is being published, when such appointment of a successor or
substitute Trustee is made, the successor or substitute Trustee may complete
said sale at the time and place designated in such notice without the necessity
of sending or publishing further notice.
X.4 Succession Instruments: Any new Trustee appointed pursuant to any
of the provisions hereof shall, without any further act, deed or conveyance,
become vested with all the estates, properties, rights, powers and trusts of its
or his predecessor in the rights hereunder with like effect as if originally
named as Trustee herein; but, nevertheless, upon the written request of
Beneficiary or his successor trustee, Trustee ceasing to act shall execute and
deliver an instrument transferring to such successor trustee, upon the trust
herein expressed, all the estates, properties, rights, powers and trusts of
Trustee so ceasing to act, and shall duly assign, transfer and deliver any of
the property and monies held by Trustee to the successor trustee so appointed in
its or his place.
X.5 Performance of Duties by Agents: Trustee may authorize one or more
parties to act on his behalf to perform the ministerial functions required of
him hereunder, including, without limitation, the transmittal and posting of any
notices.
ARTICLE XI
MISCELLANEOUS
XI.1 Survival of Obligations: Each and all of the Obligations shall
survive the execution and delivery of the Security Documents and the
consummation of the loan called for therein and shall continue in full force and
effect until the Indebtedness shall have been paid in full.
XI.2 Further Assurances: Grantor, upon the request of Trustee or
Beneficiary, will execute, acknowledge, deliver and record and/or file such
further instruments and do such further acts as may reasonably be necessary,
desirable or proper to carry out more effectively the purposes of the Security
Documents, to subject to the liens and security interests thereof any property
intended by the terms thereof to be covered thereby, including, specifically,
without limitation, any renewals, additions, substitutions, replacements or
appurtenances to the Mortgaged Property, and to complete, execute, record and
file any document or instrument necessary to place third parties on notice of
the liens and security interests granted under the Security Documents. Grantor
hereby irrevocably appoints Trustee and Beneficiary as its agents to execute and
deliver all such instruments and additionally to record and file any of the same
as may be necessary.
XI.3 Recording and Filing: Grantor will cause the Security Documents
and all amendments and supplements thereto and substitutions therefor to be
recorded, filed, re-recorded and refiled in such manner and in such places as
Trustee or Beneficiary shall reasonably request and will pay all such recording,
filing, re-recording and refiling taxes, fees and other charges.
XI.4 Notices: Any notice, request or other communication required or
permitted to be given hereunder may be given and shall conclusively be deemed
and considered to have been given and received upon the deposit thereof, in
writing, in the U.S. Mails, certified mail, return receipt requested, postage
prepaid, and addressed to the party to receive such notice at the address set
forth below or such address elected in writing by the party to receive such
notice; but actual notice however given or received, shall always be effective.
The last preceding sentence shall not be construed in anywise to effect or
impair the waiver of notice or demand to or upon Grantor in any situation or for
any reason (except as otherwise specifically provided).
If to Grantor: K-V Pharmaceutical Company
0000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
with copy to: Gallop, Xxxxxxx & Xxxxxx, X.X.
Interco Corporate Tower
000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
If to Beneficiary: LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Chip Schroederwith Vedder, Price, Xxxxxxx & Kammholz
copy to: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
XI.5 No Waiver: Any failure by Trustee or Beneficiary to insist, or any
election by Trustee or Beneficiary not to insist, upon strict performance by
Grantor of any of the terms, provisions or conditions of the Security Documents
shall not be deemed to be a waiver of the same or of any other term, provision
or condition thereof, and Trustee or Beneficiary shall have the right at any
time or times thereafter to insist upon strict performance by Grantor of any and
all of such terms, provisions and conditions.
XI.6 Beneficiary's Right to Pay Indebtedness and Pay Obligations: If an
Event of Default shall occur and be continuing under any of the Security
Documents, then at any time thereafter and without further notice to or demand
upon Grantor or any other party, without waiving or releasing any other right,
remedy or recourse Beneficiary may have because of the same, Beneficiary may
(but shall not be obligated to) make such payment or perform such act for the
account of and at the expense of Grantor and shall have the right to enter upon
the Mortgaged Property for such purpose and to take all such action thereon with
respect to the Mortgaged Property as it may deem necessary or appropriate.
Grantor shall be obligated to repay Beneficiary for all sums advanced by it
pursuant to this Paragraph 11.6 and shall indemnify and hold Beneficiary
harmless from and against any and all loss, cost, expense, liability, damage and
claims and causes of action, including reasonable attorney's fees, incurred or
accruing by any acts performed by Beneficiary pursuant to the provisions of this
Paragraph 11.6 or by reason of any other provision of the Security Documents.
All sums paid by Beneficiary pursuant to this Paragraph 11.6 and all other sums
expended by Beneficiary to which it shall be entitled to be indemnified,
together with interest thereon at the "Default Rate" as defined in the
Reimbursement Agreement from the date of such payment or expenditure, shall
constitute additions to the Indebtedness and Obligations, shall be secured by
the Security Documents and shall be paid by Grantor to Beneficiary upon demand.
XI.7 Covenants Running with the Land: All obligations contained in the
Security Documents are intended by the parties to be and shall be construed as
covenants running with the Mortgaged Property.
XI.8 Successors and Assigns: All of the terms of the Security Documents
shall apply to, be binding upon and inure to the benefit of the parties thereto,
their respective successors, assigns, heirs and legal representatives and all
other persons claiming by, through or under them.
XI.9 Severability: The Security Documents are intended to be performed
in accordance with, and only to the extent permitted by, all applicable Legal
Requirements. If any provision of any of the Security Documents or the
application thereof to any person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable, neither the remainder of the instrument
in which such provision is contained nor the application of such provision to
other persons or circumstances or other instruments referred to hereinabove
shall be affected thereby, but rather the same shall be enforced to the greatest
extent permitted by law.
XI.10 Usury: All agreements in the Reimbursement Agreement and all
other Security Documents are expressly limited so that in no contingency or
event whatsoever, whether by reason of acceleration of maturity of the
Indebtedness or otherwise, shall the amount agreed to be paid hereunder for the
use, forbearance or detention of money exceed the highest lawful rate permitted
under applicable usury laws. If, from any circumstances whatsoever, fulfillment
of any provision of the Reimbursement Agreement, this Deed of Trust or any other
of the Security Documents at the time performance of such provision shall be
due, shall involve exceeding any usury limit prescribed by law which a court of
competent jurisdiction may deem applicable hereto, then, ipso facto, the
obligations to be fulfilled shall be reduced to allow compliance with such
limit, and if, from any circumstance whatsoever, Beneficiary shall ever receive
as interest an amount which would exceed the highest lawful rate, the receipt of
such excess shall be deemed a mistake and shall be canceled automatically or, if
theretofore paid, such excess shall be credited against the principal amount of
the Indebtedness to which the same may lawfully be credited, and any portion of
such excess not capable of being so credited shall be refunded immediately to
Grantor. Grantor hereby affirms that the Indebtedness was obtained, and the
proceeds thereof have been and shall be used, solely for business purposes.
XI.11 Entire Agreement and Modification: The Security Documents contain
the entire agreements between the parties relating to the subject matter hereof
and thereof, and all prior agreements relative thereto which are not contained
herein or therein are terminated. The Security Documents may be amended,
revised, waived, discharged, released or terminated only by a written instrument
or instruments executed by the party against which enforcement of the amendment,
revision, waiver, discharge, release or termination is asserted. Any alleged
amendment, revision, waiver, discharge, release or termination which is not so
documented shall not be effective as to any party.
XI.12 Counterparts: This Deed of Trust may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute but one instrument.
XI.13 Headings and General Application: The article, paragraph and
subparagraph entitlements hereof are inserted for convenience or reference only
and shall in no way affect, modify or define, or be used in construing, the text
of such article, paragraph or subparagraph. If the context requires, words used
in the singular shall be read as including the plural, and pronouns of any
gender shall include all genders.
XI.14 Impositions and Insurance Escrow: To implement the provisions of
Paragraphs 4.4 and 4.6 hereof, upon the occurrence of an Event of Default,
Grantor, at Beneficiary's request, shall pay to Beneficiary in advance, as and
when directed by Beneficiary and as escrowed sums, an amount equal to the sums
of: (a) monthly, an amount reasonably determined by Beneficiary to be equal to
the amount which, when added to the other monthly payments to be made prior to
the due date of the annual Impositions, shall be sufficient to pay the annual
Impositions (estimated wherever necessary) to become due for the tax year during
which such payment is so directed; and (b) monthly, an amount reasonably
determined by Beneficiary to be equal to the amount which, when added to the
other monthly payments to be made prior to the due date of the insurance
premiums, shall be sufficient to pay the insurance premiums for the same year
for those insurance policies as are required hereunder. If Beneficiary
determines that any amounts theretofore paid by Grantor are insufficient for the
payment in full of such Impositions and insurance premiums, Beneficiary shall
notify Grantor of the increased amounts required to provide a sufficient fund,
whereupon Grantor shall pay to Beneficiary within thirty (30) days thereafter
the additional amount so stated in Beneficiary's notice. The escrowed sums may
be held by Beneficiary in non-interest bearing accounts and may be commingled
with Beneficiary's other funds. Upon assignment of this Deed of Trust,
Beneficiary shall have the right to pay over the balance of the escrowed sums
then in its possession to its assignee, whereupon Beneficiary and its Trustee
shall then become completely released from all liability with respect thereto.
Upon payment of the Indebtedness and Obligations, or at such earlier time that
Beneficiary may elect, the balance of the escrowed sums in its possession may be
paid over to Grantor, and no other party shall have any right or claim thereto.
If the Event of Default shall be cured by Grantor, the escrowed sums must be
repaid to Grantor in sufficient time to allow Grantor to satisfy Grantor's
obligations under the Security Documents to pay the Impositions and the required
insurance premiums or may be paid by Beneficiary directly to the Governmental
Authority and the insurance company entitled thereto. If an Event of Default
shall have occurred or be continuing hereunder, and Beneficiary has accelerated
the termination date of the Reimbursement Agreement as provided for herein,
Beneficiary shall have the additional option of crediting the full amount of the
escrowed sums against the Indebtedness. Notwithstanding anything to the contrary
contained in this Paragraph 11.14 or elsewhere in this Deed of Trust,
Beneficiary hereby reserves the right to waive the payment by Grantor to
Beneficiary of the escrowed sums and, in the event Beneficiary does so waive
such payment, it shall be without prejudice to Beneficiary's right to insist, at
any subsequent time or times, that such payments be made in accordance herewith.
XI.15 Sole Benefit: This instrument and the other Security Documents
have been executed for the sole benefit of Grantor and Beneficiary and the
heirs, successors, assigns and legal representatives of Beneficiary. No other
party shall have rights thereunder nor be entitled to assume that the parties
thereto will insist upon strict performance of their mutual obligations
hereunder, any of which may be waived from time to time. Grantor shall have no
right to assign any of their rights under the Security Documents to any party
whatsoever, including the right to receive advances under the Letter of Credit
or otherwise.
XI.16 Subrogation: If any or all of the proceeds of the Indebtedness or
the Obligations have been used to extinguish, extend or renew any indebtedness
heretofore existing against the Mortgaged Property or to satisfy any
indebtedness or obligation secured by a lien or encumbrance of any kind
(including liens securing the payment of any Impositions), such proceeds have
been advanced by Beneficiary at Grantor's request, and, to the extent of such
funds so used, the Indebtedness and Obligations in this Deed of Trust shall be
subrogated to and extend to all of the liens and titles heretofore existing
against the Mortgaged Property to secure the indebtedness or obligation so
extinguished, paid, extended or renewed, and the former liens and titles, if
any, shall not be waived, but rather shall be continued in full force and effect
and in favor of Beneficiary and shall be merged with the lien and security for
the repayment of the Indebtedness and satisfaction of the Obligations.
XI.17 Business or Commercial Purpose: Grantor warrants that the
extension of credit evidenced by the Letter of Credit secured hereby is solely
for business or commercial purposes, other than agricultural purposes. Grantor
further warrants that the credit transaction evidenced by the Reimbursement
Agreement is specifically exempted under Regulation Z issued by the Board of
Governors of the Federal Reserve System and Title I (Consumer Credit Cost
Disclosure) of the Consumer Credit Protection Act and that no disclosures are
required to be given under such regulations and federal laws in connection with
the above transaction.
XI.18 JURISDICTION AND VENUE: GRANTOR HEREBY AGREES THAT ALL ACTIONS OR
PROCEEDINGS INITIATED BY GRANTOR AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
DEED OF TRUST OR THE OTHER SECURITY DOCUMENTS SHALL BE LITIGATED IN THE SUPERIOR
COURT OF MISSOURI, ST. LOUIS COUNTY DIVISION, OR THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MISSOURI OR, IF BENEFICIARY INITIATES SUCH ACTION, IN
ADDITION TO THE FOREGOING COURTS ANY COURT IN WHICH BENEFICIARY SHALL INITIATE
SUCH ACTION, TO THE EXTENT SUCH COURT HAS JURISDICTION. GRANTOR HEREBY EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED BY BENEFICIARY IN ANY OF SUCH COURTS AND HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN,
AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS
MAY BE MADE BY ACTUAL DELIVERY OR REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, ADDRESSED TO GRANTOR AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT
HEREIN. GRANTOR WAIVES ANY CLAIM THAT ST. LOUIS, MISSOURI OR THE DISTRICT OF
MISSOURI IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE.
SHOULD GRANTOR, AFTER BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS,
COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY
LAW AFTER THE MAILING THEREOF, GRANTOR SHALL BE DEEMED IN DEFAULT AND AN ORDER
AND/OR JUDGMENT MAY BE ENTERED BY BENEFICIARY AGAINST GRANTOR AS DEMANDED OR
PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS, PROVIDED, HOWEVER,
BENEFICIARY MAY NOT SEEK A DEFAULT JUDGMENT FOR AT LEAST THIRTY (30) DAYS AFTER
THE DATE OF PROOF OF SERVICE. THE EXCLUSIVE CHOICE OF FORUM FOR GRANTOR SET
FORTH HEREIN SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT, BY BENEFICIARY, OF
ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING, BY BENEFICIARY, OF ANY
ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND GRANTOR
HEREBY WAIVES THE RIGHT TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
XI.19 WAIVER OF RIGHT TO JURY TRIAL: BENEFICIARY AND GRANTOR
ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS DEED OF
TRUST OR ANY OF THE OTHER SECURITY DOCUMENTS OR WITH RESPECT TO THE TRANSACTION
CONTEMPLATED THEREBY WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES AND,
THEREFORE, THE PARTIES AGREE THAT ANY LAWSUIT ARISING OUT OF ANY SUCH
CONTROVERSY SHALL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE
SITTING WITHOUT A JURY.
XI.20 APPLICABLE LAW: THIS DEED OF TRUST AND THE OTHER SECURITY
DOCUMENTS SHALL BE DEEMED TO HAVE BEEN, DELIVERED AND ACCEPTED IN, AND THIS DEED
OF TRUST, AND THE OTHER SECURITY DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE INTERNAL LAWS AND DECISIONS OF, THE STATE OF MISSOURI
(WITHOUT REGARD FOR ITS CONFLICTS OF LAW PRINCIPLES), THE STATE IN WHICH
BENEFICIARY'S PRINCIPAL PLACE OF BUSINESS IS LOCATED, AND BY EXECUTION HEREOF
GRANTOR AND BY ACCEPTANCE HEREOF, BENEFICIARY, EACH AGREE THAT SUCH LAWS AND
DECISIONS OF THE STATE OF MISSOURI SHALL GOVERN THIS DEED OF TRUST AND THE OTHER
SECURITY DOCUMENTS, NOTWITHSTANDING THE FACT THAT THERE MAY BE OTHER
JURISDICTIONS WHICH MAY BEAR A REASONABLE RELATIONSHIP TO THE TRANSACTIONS
CONTEMPLATED HEREBY; PROVIDED, HOWEVER, THAT WITH RESPECT TO THE PROCEDURAL AND
SUBSTANTIVE MATTERS RELATING ONLY TO THE CREATION, VALIDITY, PERFECTION AND
ENFORCEMENT BY BENEFICIARY OF ITS RIGHTS AND REMEDIES AGAINST ANY REAL OR
PERSONAL PROPERTY COLLATERAL LOCATED IN ANY STATE OTHER THAN MISSOURI, SUCH
MATTERS SHALL BE GOVERNED BY THE LAWS OF THE STATE IN WHICH SUCH PROPERTY IS
LOCATED.
XI.21 TENANCY OF GRANTOR: GRANTOR HEREBY RESERVES POSSESSION OF THE
LAND, IMPROVEMENTS AND FIXTURES AND AGREES TO LEASE THE SAME AS TENANT OF THE
TRUSTEE AT A RENTAL OF ONE CENT PER MONTH, PAYABLE ON DEMAND, UNTIL AN EVENT OF
DEFAULT SHALL OCCUR HEREUNDER, WHEREUPON GRANTOR SHALL DELIVER POSSESSION OF THE
LAND, IMPROVEMENTS AND FIXTURES TO THE TRUSTEE OR THE PURCHASER AT ANY
FORECLOSURE OR TRUSTEE'S SALE HEREUNDER.
Executed as of the date first above written.
K-V Pharmaceutical Company, a Delaware
corporation
By:
Name:
Title:
THE STATE OF )
)
COUNTY OF )
On this ______ day of October, 1997, before me appeared
_________________________, to me personally known, who being by me duly sworn,
did say that he is the _______________ of K-V Pharmaceutical Company, a Delaware
corporation and that said instrument was signed in behalf of said company by
authority of its Board of Directors and said _______________ acknowledged said
instrument to be the free act and deed of said company.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal the day and year last above written.
----------------------------------------
Notary Public
My Commission Expires:
------------------------
Exhibit "A"
PROPERTY DESCRIPTION
Lot 2 of WESTPORT INDUSTRIAL SUBDIVISION FIRST ADDITION, according to
the plat thereof, recorded in Book 106, page 12 in the St. Louis County
Recorder's Office.
Exhibit "B"
PERMITTED ENCUMBRANCES
1. All assessments and taxes for the year 1997 and all subsequent years
for the County of St. Louis and City of Maryland Heights.
2. Building lines and easements established by the plat recorded in
Plat Book 106 page 12, and covenants and restrictions, including a provision for
Subdivision Assessments, contained in the instrument recorded in Book 4997 page
13.
3. Terms, conditions, covenants and provisions contained in Declaration
creating West Port Industrial Community Association recorded in Book 4997 page
13.
4. Terms, conditions, restrictions and assessments contained in sewer
contract recorded in Book 4885 page 463.
5. Easement granted to Fee Fee Trunk Sewer, Inc., by instrument
recorded in Book 4981 page 379.
6. Easement granted to The St. Louis County Water Company by instrument
recorded in Book 5955 page 271.
7. Easement granted to Southwestern Xxxx Telephone Company by
instrument recorded in Book 6011 page 252.
8. Easement granted to Union Electric Company according to instrument
recorded in Book 6091 page 240, as partially released according to instrument
recorded in Book 7299 page 2494 of the St. Louis County Records.
9. Easement granted to Union Electric Company by instrument recorded in
Book 8881 page 1786.
