HomeMy WebLinkAbout1351 Consent to Secure Additional Construction Financing for Argo Innovation Park Lot 6, LLC BILL NO. 2014-084 ORDINANCE NO. 35
AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY OF CONSENTS TO
VARIOUS LOAN DOCUMENTS TO ALLOW THE TENANTS UNDER THE CHAPTER 100
LEASE WITH THE CITY TO SECURE ADDITIONAL CONSTRUCTION FINANCING FOR THE
ARGO INNOVATION PARK LOT 6, L.L.C. INDUSTRIAL DEVELOPMENT PROJECT
WHEREAS, pursuant to that certain Lease Agreement between the City of Riverside,
Missouri ("City") and Argo Innovation Park Lot 6, L.L.C. ("Argo"), authorized by Ordinance No.
1319 on June 3, 2014, such Lease Agreement being dated June 1, 2014 (the "Lease"), the City
leases to Argo and HIDGS Associates, LLC (°HIDGS", and together with Argo, "Tenant") all of
Lot 6, ARGO INNOVATION PARK, a subdivision in Riverside, Platte County, Missouri,
according to the recorded plat thereof, together with the improvements located thereon (the
"Project"); and
WHEREAS, Tutera Investments, L.L.C. ("Tutera") is the holder of that certain Future
Advance Deed of Trust and Security Agreement dated May 1, 2014 executed by Argo and filed
for record with the Recorder of Deeds, Platte County, Missouri, on May 9, 2014, as Instrument
No. 2014004766 (as amended, the "Deed of Trust"); and
WHEREAS, Tutera and Valley View State Bank ("Valley View") desire to advance loan
proceeds to Tenant and Tenant desires that such loans be made to further the construction of
the Project; and
WHEREAS, in order to advance such construction loan proceeds to Tenant, Tutera and
Valley View require security for such loans; and
WHEREAS, as contemplated by Section 13.1(a) of the Lease, Tenant may assign,
transfer, encumber, or dispose of its interest in the Lease upon receiving the City's consent and
upon Tenant's compliance with certain conditions described thereunder; and
WHEREAS, Tutera desires to assign its interest in the Deed of Trust to Valley View
pursuant to that certain Assignment of Future Advance Deed of Trust and Security Agreement
attached hereto and incorporated herein as Exhibit A (the "Deed of Trust Assignment"); and
WHEREAS, Argo and Valley View then desire to further amend the Deed of Trust
pursuant to that certain Second Amendment of Future Advance Deed of Trust and Security
Agreement attached hereto and incorporated herein as Exhibit B (the "Second Amendment");
and
WHEREAS, Argo desires to grant that certain Future Advance Leasehold Deed of Trust
and Security Agreement attached hereto and incorporated herein as Exhibit C (the "Leasehold
Deed of Trust") to Michael F. Flanagan, L.L.C., as trustee for the benefit of Tutera, whereby
Argo will subject its interest in the Mortgaged Property (as defined therein) to the lien of the
Leasehold Deed of Trust; and
WHEREAS, Tenant desires to assign its tenancy rights under the Lease to Valley View
pursuant to that certain Collateral Assignment of Tenant Rights attached hereto and
incorporated herein as Exhibit D (the "Collateral Assignment'; and together with the Deed of
WA 6138544.1
Trust Assignment, the Second Amendment, and the Leasehold Deed of Trust, the "Loan
Documents'); and
WHEREAS, the Board of Aldermen find it to be in the best interests of the City in order
to further the objectives of industrial and economic development of the City, and the terms and
conditions of the Lease, as well as in furtherance of the objective to protect the health, safety,
and welfare of the businesses and citizens of the City, to execute and deliver the City's
consents to the Loan Documents as set forth herein.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS:
SECTION 1 - BEST INTEREST OF THE CITY TO APPROVE LOAN DOCUMENTS. In
order to further the objectives of industrial and economic development of the City, and the terms
and conditions of the Lease, as well as in furtherance of the objective to protect the health,
safety, and welfare of the businesses and citizens of the City, the Loan Documents attached
hereto as Exhibits A-D and incorporated herein are hereby approved.
SECTION 2 -AUTHORITY GRANTED. The City hereby authorizes the Mayor of the City
to execute and deliver the City's consent pages to the Loan Documents, consistent with the
terms of this Ordinance and Missouri law, and hereby authorizes the Mayor, the City
Administrator, Special Counsel to the City and other appropriate City officials to take any and all
actions as may be deemed necessary or convenient to carry out and comply with the intent of
this Ordinance and to execute and deliver for and on behalf of the City all certificates,
instruments, agreements and other documents, as may be necessary or convenient to perform
all matters herein authorized.
SECTION 3 - EFFECTIVE DATE. This Ordinance shall be in full force and effect from
and after its passage and approval.
BE IT REMEMBERED that the above was read two times by heading only, PASSED AND
APPROVED by a majority of the Board of Aldermen and APPROVED by the Mayor of the City
of Riverside, Missouri, this 7t' day of October, 2014.
• ' KatMeen L. Rose, Ma or
ATTR
Robin.Llttrall, City clerk ••'
Approved as to form:
Spe r Fane Britt & Browne LLP
Sp cial unsel to the City
by Joe B nar
2 WA 6138544.1
EXHIBIT A
ASSIGNMENT OF FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT
3
WA 6138544.1
Title of Document: Assignment of Future Advance Deed of Trust and Security Agreement
Date of Document: 12014
Grantor(Assignor): Tutera Investments, L.L.C.
7611 State Line Road, Suite 301
Kansas City, MO 64114
Grantee (Assignee): Valley View State Bank
7500 W. 95th Street
Overland Park, Kansas 66212
Legal Description: See Exhibit A attached hereto
Reference Instruments: Instrument No. 2014004766, Book 1227 at Page 804
Instrument No. 2014007974, Book 1231 at Page 3
This instrument was prepared by
and return a recorded copy to:
Deutons US LLP
4520 Main Street, Suite 1100
Kansas City, Missouri 64111
Attention: Traci O. Peterson
ASSIGNMENT OF FUTURE ADVANCE DEED OF TRUST
AND SECURITY AGREEMENT
THIS ASSIGNMENT OF FUTURE ADVANCE DEED OF TRUST AND
SECURITY AGREEMENT ("Assignment") is made and entered into as of the _ day of
' 2014, by and between Tutera Investments, L.L.C., a Missouri limited
liability company ("Assignor") and Valley View State Bank, a Kansas banking corporation
("Assignee")
WITNESSETH:
That for good and valuable consideration, Assignor does hereby assign, sell, convey, set
over and deliver to Assignee all of Assignor's right, title and interest into and to that certain
Future Advance Deed of Trust and Security Agreement dated May 1, 2014 executed by Argo
Innovation Park Lot 6, L.L.C., a Missouri limited liability company ("Borrower"), in which
Assignor is named as beneficiary, and filed for record in the Recorder of Deeds, Platte County,
Missouri ("Recorder of Deeds") on May 9, 2014 as Instrument No. 2014004766, as amended by
First Amendment to Future Advance Deed of Trust and Security Agreement dated July 11, 2014,
executed by Borrower and Assignor, and filed for record in the Recorder of Deeds on July 23,
2014 as Instrument No. 2014007974 (collectively, the "Deed of Trust"), and together with all of
Assignor's right, title and interest in and to the real property described on Exhibit A hereto,
which Deed of Trust secures the indebtedness evidenced by that certain Promissory Note, dated
May 1, 2014, executed by Borrower in favor of Assignor, as amended by that certain first
Amendment to Promissory Note dated July 11, 2014, executed by Borrower and Assignor, which
Promissory Note has been assigned by Assignor to Assignee by Allonge dated of even date
herewith.
[Remainder of page intentionally left blank]
2
IN WITNESS WHEREOF, this Assignment has been duly executed as of the day and
year first above written.
TUTERA INVESTMENTS, L.L.C.,
a Missouri limited liability company
By:
Printed Name: Joseph C. Tutera
Title: Manager
ACKNOWLEDGMENT
STATE OF MISSOURI )
ss.
COUNTY OF JACKSON )
On this day of 2014, before me personally appeared Joseph C. Tutera,
the Manager of Tutera Investments, L.L.C., a Missouri limited liability company, and
acknowledged to me that he executed the same in his authorized capacity for and on behalf of
said limited liability company.
Given under my hand and official seal on , 2014.
[SEAL]
Notary Public
Name:
My Commission Expires:
3
20803058W 3\8269 7\V-3
CONSENT AND ACKNOWLEDGMENT OF CITY
City of Riverside, Missouri hereby acknowledges and consents to the execution and
delivery of this Assignment of Future Advance Deed of Trust and Security Agreement and
confirms that such Deed of Trust as assigned remains as a first lien on the fee interest of the
Property.
CITY OF RIVERSIDE, MISSOURI
By: k�&a&_,'
Name: Kathleen L. Rose
(Seal) s Title: Mayor
ATT _.- '
By::=mak ;
Name: e Ltxji�!(
Title: City?Clark
r �
STATE OF MISSOURI )
�[ )
COUNTY OF ��ck d l C� ) ss.
On this day before me appeared Kathleen L. Rose, to me personally known, who, being
by me duly sworn did say that she is the Mayor of the City of Riverside, Missouri, a political
subdivision and body corporate organized and existing under the laws of the State of Missouri,
and that the foregoing instrument was signed for the purposes therein contained on behalf of said
City of Riverside, Missouri by authority of its Board of Aldermen, and Mayor Rose
acknowledged said instrument to be the free act and deed of said City of Riverside, Missouri.
Given under my hand and official seal on (�)r 7 , 2014.
ROBIN.L.UTTRELL
[SE ] Notary,Public-Notary Seal
Com
t Mian Clay County
.
Coinmisaion_s 11360631
Mj Commission Expire►Mk 6,2016 Notary Publ'
Name: —Ko ' �r , L . 'QG��
My Commission Expires:
4
20 030580003k8269 AV-3
CONSENT OF TRUSTEE
Security Bank of Kansas City, as trustee, hereby acknowledges and consents to the
execution and delivery of this Assignment of Future Advance Deed of Trust and Security
Agreement.
SECURITY BANK OF KANSAS CITY
By:
Name:
Title:
STATE OF MISSOURI )
ss.
COUNTY OF )
On this day before me appeared to me personally known, who, being
by me duly sworn did say that he is the of Security Bank of Kansas
City, a Kansas banking corporation, as trustee (the "Trustee") and that said instrument was
signed on behalf of said Trustee and by authority of the Trustee, and said person acknowledged
said instrument to be the free act and deed of the Trustee.
Given under my hand and official seal on 2014.
[SEAL]
Notary Public
Name:
My Commission Expires:
5
20003058WOOTBM96 AVJ
CONSENT OF BONDHOLDER
Argo Innovation Park Lot 6, L.L.C., as holder of the Bonds, hereby acknowledges and
consents to the execution and delivery of this Assignment of Deed of Trust and Security
Agreement.
ARGO INNOVATION PARK LOT 6, L.L.C.,
a Missouri limited liability company
By:
Name: Joseph C. Tutera
Title: Manager
STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
On this day of 2014, before me personally appeared Joseph C. Tutera,
the Manager of Tutera Investments, L.L.C., a Missouri limited liability company, and
acknowledged to me that he executed the same in his authorized capacity for and on behalf of
said limited liability company.
Given under my hand and official seal on 2014.
[SEAL]
Notary Public
Name:
My Commission Expires:
6
2"3058b00Tffi W7ZVJ
EXHIBIT A
(Legal Description)
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2W3058WW3\8M 77\V-3
EXHIBIT B
SECOND AMENDMENT OF FUTURE ADVANCE DEED OF TRUST AND SECURITY
AGREEMENT
4 WA 6138544.1
(Space above reserved for Recorder of Deeds)
Title(s) of Document: SECOND AMENDMENT OF FUTURE ADVANCE DEED OF
TRUST AND SECURITY AGREEMENT
Date of Document: 2014
Grantor/Borrower: ARGO INNOVATION PARK LOT 6, L.L.C.,
a Missouri limited liability company
Grantor's Address: 7611 State Line Road
Kansas City, MO 64114
Grantee/Lender: VALLEY VIEW STATE BANK
Grantee's Address: 7500 W. 95th Street
Overland Park, KS 66212
Legal Description: See Exhibit A and Exhibit A-I
References: Instrument No. 2014004766 in Book 1227 at Page 804
Instrument No. 2014007974 in Book 1234 at Page 3
Instrument No. in Book_at Page
This instrument was prepared by and
after recording should be returned to:
Deutons US LLP
4520 Main Street, Suite 1100
Kansas City,Missouri 64111
Attn: Traci O. Peterson
SECOND AMENDMENT OF FUTURE DEED OF TRUST
AND SECURITY AGREEMENT
This SECOND AMENDMENT OF FUTURE ADVANCE DEED OF TRUST AND
SECURITY AGREEMENT (hereinafter referred to as the "Amendment"), effective as of
, 2014, is executed by ARGO INNOVATION PARK LOT 6, L.L.C., a Missouri
limited liability company (the "Borrower"), VALLEY VIEW STATE BANK (the "Lender"),
CITY OF RIVERSIDE, MISSOURI (the "City"), SECURITY BANK OF KANSAS CITY
("Bond Trustee").
WHEREAS, Borrower granted a certain Future Deed of Trust and Security Agreement
dated as of May 1, 2014, recorded in the office of the Platte County, Missouri Recorder of Deeds
(the "Record's Office") on May 9, 2014 as Instrument Number 2014004766, as amended by that
certain First Amendment to Future Advance Deed of Trust and Security Agreement dated July
11, 2014, recorded in the Record's Office on July 23, 2014 as Instrument Number 2014007974
(collectively, the "Deed of Trust"), encumbering the real property described therein and set
forth in Exhibit A attached hereto (the "Property"), to Tutera Investments, L.L.C., a Missouri
limited liability company (the "Prior Lender")to secure a certain Promissory Note dated May 1,
2014, as amended and modified (the "Original Note") made by Borrower payable to Prior
Lender, together with all obligations, debts and liabilities of Borrower to Prior Lender, future
advances made by Prior Lender to Borrower, and all other secured obligations more particularly
described therein.
WHEREAS, the City thereafter issued its $18,730,000.00 (Aggregate Maximum
Principal Amount) City of Riverside Taxable Industrial Revenue Bonds (Argo Innovation Park
Lot 6, L.L.C. Project) Series 2014 (the "Bonds"), pursuant to a Trust Indenture dated as of June
1, 2014 (the "Indenture") between the City and the Bond Trustee, and is using the proceeds of
the Bonds, which are held by Borrower, for the purpose of(a) acquiring the Property, (b) leasing
the Property and improvements thereon to Borrower and HIDGS Associates, LLC, a Missouri
limited liability company, for the construction of an approximately 275,5000 square foot
industrial facility (the "Project") upon the Property, and (c) paying a portion of the costs and
issuing the Bonds.
WHEREAS, the City leased the Project to the Borrower pursuant to a Lease Agreement
dated as of June 1, 2014 (the "Lease Agreement") between the Borrower and the City, and the
Borrower and the City filed for recorded a Memorandum of Lease Agreement dated June 1,
2014, which was recorded on June 5, 2014 as Instrument No. 2014005908 in the Records Office.
WHEREAS, Prior Lender assigned all of its right, title and interest in the Deed of Trust
and the Original Note to Lender pursuant to that certain Assignment of Future Advance Deed of
Trust and Security Agreement and Allonge each dated as of even date herewith.
WHEREAS, pursuant to that certain Construction Loan Agreement of even date herewith
between Borrower and Lender (the "Loan Agreement") Lender has agreed, among other things,
to loan to Borrower $6,500,000.00 as evidenced by that certain Amended and Restated
Promissory Note dated of even date herewith made by Borrower payable to the order of Lender
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in the principal amount of$6,500,000.00 (the "Amended Note"), which Amended Note is to be
secured by the Deed of Trust, among other collateral.
WHEREAS, in connection with the Loan Agreement, the parties desire to amend the
Deed of Trust on the terms and conditions set forth below.
WHEREAS, the City and the Bond Trustee have no objection to the amendment of the
Deed of Trust and have agreed to execute whatever documents may be reasonably necessary to
accomplish such amendments.
NOW THEREFORE, for and in consideration of the mutual promises of the parties, and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower and Lender do hereby agree as follows:
1. Recitals. The foregoing recitals are hereby incorporated into this Amendment as
if fully set forth herein. Terms used herein which are not otherwise defined shall have the
meanings assigned to them in the Deed of Trust.
2. Future Advances. A statutory statement regarding Future Advances shall be set
forth on page 2 of the Deed of Trust (the first page after the cover page) and shall state the
following:
"THIS DEED OF TRUST SECURES FUTURE ADVANCES AND FUTURE
OBLIGATIONS AS PERMITTED BY §443.055 OF THE REVISED
STATUTES OF MISSOURI, AS IT MAY BE AMENDED FROM TIME TO
TIME. THIS DEED OF TRUST IS GOVERNED BY SAID §443.055. THE
FACE AMOUNT SECURED BY THIS DEED OF TRUST IS $6,500,000.00,
PLUS INTEREST AND OTHER OBLIGATIONS AS PROVIDED HEREIN
AND PERMITTED BY RSMO §443.055."
3. Loan. The defined term "Loan" as set forth in the Deed of Trust shall mean the
loan extended by Lender to Borrower in the stated sum of$6,500,000.00 pursuant to the terms of
the Construction Loan Agreement dated , 2014 between Lender and Borrower.
4. Note. The defined term "Note" as set forth in the Deed of Trust shall mean the
Amended and Restated Promissory Note dated as of , 2014 between Borrower and
Lender, as it may be amended and modified from time to time.
5. Premises. The reference on Page 2 of the Deed of Trust to 'Belton, Cass County,
Missouri" shall be deleted and replaced with 'Riverside, Platte County, Missouri".
6. Trustee. Michael F. Flanagan, L.L.C. is hereby removed as Trustee under the
Deed of Trust and the following party is appointed as the successor Trustee thereunder:
Tyler Page
c/o Dentons US LLP
4520 Main Street, Suite 1100
3
826067AVJ
Kansas City, MO 64111
7. Exhibit A and Exhibit A-1. Exhibit A attached to the Deed of Trust is hereby
amended to add the real property legally described on Exhibit A-1 attached hereto (the "New
Parcel). Borrower hereby irrevocably grants, bargain, sells, conveys and assigns to the Trustee
(as defined in the Deed of Trust), in trust, all of Borrower's present and hereafter acquired
interest in and to the New Parcel, together with Borrower's rights, privileges, royalties and
easements relating thereto,with appurtenances.
8. Exhibit B. Exhibit B as attached to the Deed of Trust is hereby deleted in its
entirety and the following new Exhibit B shall be attached thereto.
9. Morteaeed Property. The following new Section (h) is inserted onto Page 4 of
the Deed of Trust:"
"(h) All leases, subleases, licenses and other agreements granting others the
right to use or occupy all or any part of the Premises together with all
restatements, renewals, extensions, amendments and supplements thereto
("Leases"), now existing or hereafter entered into, and whether entered
before or after the filing by or against Grantor of any petition for relief
under any applicable State or Federal Bankruptcy Code (individually and
collectively, the "Bankruptcy Code"), and all of Borrower's right, title and
interest in the Leases, including, without limitation (i) all guarantees,
letters of credit and any other credit support given by any tenant or
guarantor in connection therewith, (ii) all cash, notes, or security deposited
thereunder to secure the performance by the tenants of their obligations
thereunder, (iii) all claims and rights to the payment of damages and other
claims arising from any rejection by a tenant of its Lease under any
applicable State or Federal Bankruptcy Code, (iv) all of the landlord's
rights in casualty or condemnation proceeds of a tenant in respect of the
leased premises, (v) all rents, ground rents, additional rents, revenues,
termination and similar payments, issues and profits (including all oil and
gas or other mineral royalties and bonuses) from the Premises,
(collectively (i) through (v) are the "Rents"), whether paid or accruing
before or after the filing by or against Borrower of any petition for relief
under any applicable State or Federal Bankruptcy Code, (vi) all
termination fees, including, but not limited to, the Termination Fee as
defined in that certain Lease Agreement dated May 1, 2014 between
Grantor and Martinrea Riverside LLC, as amended and modified, (vii) all
proceeds or streams of payment from the sale or other disposition of the
Leases or disposition of any Rents, and (vii) the right to receive and apply
the Rents to the payment of the Indebtedness and to do all other things
Grantor or a lessor is or may become entitled to do under the Leases or
with respect to the Rents."
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10. Deed of Trust Section 427.120 Notice. The following notice is given to comply
with Section 427.120 of the Revised Statutes of Missouri and is inserted into the Deed of Trust
as a new Section 1.05 (d):
"(d) UNLESS YOU PROVIDE EVIDENCE OF THE INSURANCE
COVERAGE REQUIRED BY THIS DEED OF TRUST TO
BENEFICIARY, BENEFICIARY MAY PURCHASE INSURANCE AT
GRANTOR'S EXPENSE TO PROTECT BENEFICIARY'S
INTERESTS IN GRANTOR'S COLLATERAL. THIS INSURANCE
MAY, BUT NEED NOT, PROTECT GRANTOR'S INTERESTS. THE
COVERAGE THAT BENEFICIARY PURCHASES MAY NOT PAY
ANY CLAIM THAT GRANTOR MAKES OR ANY CLAIM THAT IS
MADE AGAINST GRANTOR IN CONNECTION GRANTOR'S
COLLATERAL. GRANTOR MAY LATER CANCEL ANY
INSURANCE PURCHASED BY BENEFICIARY, BUT ONLY AFTER
PROVIDING EVIDENCE THAT GRANTOR HAS OBTAINED
INSURANCE AS REQUIRED BY THIS DEED OF TRUST. IF
BENEFICIARY PURCHASES INSURANCE FOR THE
COLLATERAL, GRANTOR WILL BE RESPONSIBLE FOR THE
COSTS OF THAT INSURANCE, INCLUDING THE INSURANCE
PREMIUM, INTEREST AND ANY OTHER CHARGES WE MAY
IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE
INSURANCE, UNTIL THE EFFECTIVE DATE OF THE
CANCELLATION OR EXPIRATION OF THE INSURANCE. THE
COSTS OF THE INSURANCE MAY BE ADDED TO GRANTOR'S
TOTAL OUTSTANDING BALANCE OR OBLIGATION
HEREUNDER AND UNDER THE CONSTRUCTION LOAN
DOCUMENTS. THE COSTS OF THE INSURANCE MAY BE MORE
THAN THE COST OF INSURANCE GRANTOR MAY BE ABLE TO
OBTAIN ON ITS OWN."
11. Assianment of Leases and Rents. Section 1.15 is hereby deleted in its entirety
and the following new Section 1.15 is inserted there:
"1.15 Assignment of Leases and Rents.
(a) Grantor irrevocably assigns to Beneficiary all of Grantor's
right, title and interest in, to and under all present and future Leases and
Rents. This is a present and absolute assignment, not an assignment for
security purposes only, and Beneficiary's right to the Leases and Rents is
not contingent upon, and may be exercised without possession of, the
Mortgaged Property.
(b) Beneficiary confers upon Grantor a revocable license
("License") to collect and retain the Rents as they become due and
payable, until the occurrence of an Event of Default. Upon an Event of
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Default, the License shall be automatically revoked and Beneficiary may
collect and apply the Rents pursuant to the terms hereof without notice and
without taking possession of the Mortgaged Property. All Rents thereafter
collected by Grantor shall be held by Grantor as trustee under a
constructive trust for the benefit of Beneficiary. Grantor hereby
irrevocably authorizes and directs the tenants under the Leases to rely
upon and comply with any notice or demand by Beneficiary for the
payment to Beneficiary of any rental or other sums that may at any time
become due under the Leases, or for the performance of any of the
tenants' undertakings under the Leases, and the tenants shall have no right
or duty to inquire as to whether any Event of Default has actually occurred
or is then existing. Grantor hereby relieves the tenants from any liability
to Grantor by reason of relying upon and complying with any such notice
or demand by Beneficiary. Beneficiary may apply, in its sole discretion,
any Rents so collected by Beneficiary against any Obligation or any other
obligation of Grantor or any other person or entity, under any document or
instrument related to or executed in connection with the Loan Documents,
whether existing on the date hereof or hereafter arising. Collection of any
Rents by Beneficiary shall not cure or waive any Event of Default or
notice of Event of Default or invalidate any acts done pursuant to such
notice. If and when no Event of Default exists, Beneficiary shall re-confer
the License upon Grantor until the occurrence of another Event of Default.
(c) The foregoing irrevocable assignment shall not cause
Beneficiary to be: (a) a mortgagee in possession; (b) responsible or liable
for the control, care, management or repair of the Mortgaged Property or
for performing any of the terms, agreements, undertakings, obligations,
representations, warranties, covenants and conditions of the Leases; (c)
responsible or liable for any waste committed on the Mortgaged Property
by the tenants under any of the Leases or by any other parties; for any
dangerous or defective condition of the Mortgaged Property; or for any
negligence in the management, upkeep, repair or control of the Mortgaged
Property resulting in loss or injury or death to any tenant, licensee,
employee, invitee or other person; or (d) responsible for or impose upon
Beneficiary any duty to produce rents or profits. Beneficiary shall not
directly or indirectly be liable to Grantor or any other person as a
consequence of. (e) the exercise or failure to exercise any of the rights,
remedies or powers granted to Beneficiary hereunder; or (f) the failure or
refusal of Beneficiary to perform or discharge any obligation, duty or
liability of Grantor arising under the Leases.
(d) Grantor shall at Grantor's sole cost and expense: (a)perform
the obligations of landlord contained in the Leases and use reasonable
efforts to enforce performance by the tenants of the obligations of the
tenants contained in the Leases; (b)use reasonable efforts to keep the
Mortgaged Property leased at all times to tenants that Grantor reasonably
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and in good faith believes are creditworthy at rents not less than the fair
market rental value (including, but not limited to, free or discounted rents
to the extent the market so requires); (c) promptly upon Beneficiary's
request, deliver to Beneficiary a copy of each requested Lease and all
amendments thereto and waivers thereof, and (d) promptly upon
Beneficiary's request, execute and record any additional assignments to
Beneficiary of landlord's interest in any Lease in form and substance
satisfactory to Beneficiary. Unless consented to in writing by Beneficiary
or otherwise permitted by any provision of the Loan Documents, Grantor
shall not: (i) grant any tenant under any Lease any option, right of first
refusal or other right to purchase all or any portion of the Mortgaged
Property under any circumstances; or (ii) execute any other assignment of
landlord's interest in any of the Leases. Any such attempted action in
violation of the provisions of this Section shall be null and void.
(e) Within 30 days after request by Beneficiary, Grantor shall
deliver to Beneficiary and to any party designated by Beneficiary, estoppel
certificates relating to any commercial Leases executed by Grantor and by
each of the tenants, in form and substance acceptable to Beneficiary;
provided, however, if any tenant shall fail or refuse to so execute and
deliver any such estoppel certificate upon request, Grantor shall use
reasonable efforts to cause such tenant to execute and deliver such
estoppel certificate but such tenant's continued failure or refusal to do so,
despite Grantor's reasonable efforts, shall not constitute a default by
Grantor under this Section.
(f) Beneficiary may at any time and from time to time by specific
written instrument intended for the purpose unilaterally subordinate the
lien of this Deed of Trust to any Lease, without joinder or consent of, or
notice to, Grantor, any tenant or any other person. Notice is hereby given
to each tenant under a Lease of such right to subordinate. No
subordination referred to in this Section shall constitute a subordination to
any lien or other encumbrance, whenever arising, or improve the right of
any junior lienholder. Nothing herein shall be construed as subordinating
this Deed of Trust to any Lease."
12. Notices. The notice addresses for Beneficiary and Trustee set forth in Section
3.06 are hereby deleted in their entirety and the following inserted in lieu there:
Beneficiary: Valley View State Bank
7500 W. 95th Street
Overland Park, Kansas 66212
Attention: Leo Harris
Trustee: Tyler Page
c/o Dentons US LLP
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92693 MV4
4520 Main Street, Suite 1100
Kansas City, MO 64111
13. Effect of Amendment. This Amendment shall be deemed to form a part of the
Loan Documents. This Amendment shall not prejudice any present or future rights, remedies or
powers belonging or accruing to Lender under the Loan Documents, nor impair the lien of the
Deed of Trust.
14. No Effect on Liens or Priority. Nothing in this Amendment shall in any way
release, diminish or affect the first position lien of the Deed of Trust or any liens created by, or
the agreements or covenants contained in, the Loan Documents or the first lien priority of any
such liens,except as expressly provided herein,. Borrower agrees that the Loan Documents shall
secure all other sums that may be advanced in the future by the Lender pursuant to the terms of
the Loan Documents.
15. Loan Documents. Any reference herein or in the Loan Documents to any Loan
Document or to the Loan Documents will mean the Loan Document or Loan Documents, as
amended by this Amendment.
16. General. This Amendment is binding upon and will inure to the benefit of the
parties and their respective successors and assigns. This Amendment may be executed in any
number of counterparts, each of which, when so executed and delivered, shall be an original, but
such counterparts shall together constitute one and the same instrument.
17. No Other Modifications. Except as expressly set forth herein, all of the terms
and conditions of the Deed of Trust, and all of the other Loan Documents shall remain
unmodified and in full force and effect and Borrower hereby confirms and ratifies all such
documents and will perform and comply with the terms and conditions thereof, as modified and
mended hereby.
[signatures on the following pages]
8
9269367AVA
IN WITNESS WHEREOF, this Amendment has been executed by the parties hereto in
multiple counterparts and is effective as of the date and year first above written.
BORROWER:
ARGO INNOVATION PARK LOT 6,L.L.C.,
a Missouri limited liability company
By:
Name: Joseph C. Tutera
Title: Manager
STATE OF MISSOURI )
ss.
COUNTY OF JACKSON )
On this day before me Joseph C. Tutera, to me personally known, who, being by me duly
sworn did say that he is the Manager of Argo Innovation Park Lot 6, L.L.C., a Missouri limited
liability company, and that said instrument was signed on behalf of said Missouri limited liability
company by lawful and proper authority, and said person acknowledged said instrument to be the
free act and deed of said Missouri limited liability company.
Given under my hand and official seal on 2014.
[SEAL]
Notary Public
Name:
My Commission Expires:
9
M936 w e
LENDER:
VALLEY VIEW STATE BANK
By:
Name:
Title:
STATE OF )
ss.
COUNTY OF )
On this day before me appeared to me personally known, who, being
by me duly sworn did say that he is the of Valley View State Bank, a
Kansas banking corporation, and that said instrument was signed on behalf of said Kansas
banking corporation by lawful and proper authority, and said person acknowledged said
instrument to be the free act and deed of said Kansas banking corporation.
Given under my hand and official seal on 2014.
[SEAL]
Notary Public
Name:
My Commission Expires:
10
82693MV4
CONSENT AND ACKNOWLEDGMENT OF CITY
City of Riverside, Missouri hereby acknowledges and consents to the execution and
delivery of this Second Amendment to Deed of Trust and Security Agreement and confirms that
such Deed of Trust as amended remains as a first lien on the fee interest of the Property.
CITY OF RIVERSIDE, MISSOURI
� • , l D
By:
Kathleen L. Rose, Mayor
(Seal)
ATTES -
By: o c
Name:
Title: City Clerk
STATE OF ji ssou r2� )
ss.
COUNTY OF T app )
On this day before me appeared Kathleen L. Rose, to me personally known, who, being
by me duly sworn did say that she is the Mayor of the City of Riverside, Missouri, a political
subdivision and body corporate organized and existing under the laws of the State of Missouri,
and that the foregoing instrument was signed for the purposes therein contained on behalf of said
City of Riverside, Missouri by authority of its Board of Aldermen, and Mayor Rose
acknowledged said instrument to be the free act and deed of said City of Riverside, Missouri.
jive�j,iitlder4ny'hand and official seal on - , 2014.
v .
A J
[SEAT,]
a ,
w * Notary Public
w
o Name:
c�
My Commission Expires: Q(
11
82693602\V4
CONSENT OF TRUSTEE
Security Bank of Kansas City, as trustee, hereby acknowledges and consents to the
execution and delivery of this Second Amendment to Deed of Trust and Security Agreement.
SECURITY BANK OF KANSAS CITY
By:
Name:
Title:
STATE OF )
ss.
COUNTY OF )
On this day before me appeared , to me personally known, who, being
by me duly sworn did say that he is the of Security Bank of Kansas
City, a Kansas banking corporation, as trustee (the "Trustee") and that said instrument was
signed on behalf of said Trustee and by authority of the Trustee, and said person acknowledged
said instrument to be the free act and deed of the Trustee.
Given under my hand and official seal on 12014.
[SEAL]
Notary Public
Name:
My Commission Expires:
12
8260672\V4
CONSENT OF BONDHOLDER
Argo Innovation Park Lot 6, L.L.C., as holder of the Bonds, hereby acknowledges and
consents to the execution and delivery of this Second Amendment to Deed of Trust and Security
Agreement.
ARGO INNOVATION PARK LOT 6,L.L.C.,
a Missouri limited liability company
By:
Joseph C. Tutera
Title: Manager
STATE OF MISSOURI )
ss.
COUNTY OF JACKSON )
On this day before me appeared Joseph C. Tutera, to me personally known, who, being
by me duly sworn did say that he is the Manager of Argo Innovation Park Lot 6, L.L.C., a
Missouri limited liability company, and that said instrument was signed on behalf of said
Missouri limited liability company by lawful and proper authority, and said person
acknowledged said instrument to be the free act and deed of said Missouri limited liability
company.
Given under my hand and official seal on 12014.
[SEAL]
Notary Public
Name:
My Commission Expires:
13
82M67ZV4
EXHIBIT A
LEGAL DESCRIPTION
14
820367MV4
EXHIBIT A-1
NEW PARCEL LEGAL DESCRIPTION
15
SM936nwr
EXHIBIT B
Security Documents
Borrower: Argo Innovation Park Lot 6, L.L.C.
Lender: Valley View State Bank
1. Amended and Restated Promissory Note dated , 2014 executed and
delivered by Borrower to Lender.
2. Deed of Trust and Security Agreement dated May 1, 2014, delivered Borrower to
Prior Lender, as amended by First Amendment to Future Advance Deed of Trust
and Security Agreement, dated July 11, 2014, between Borrower and Prior
Lender, as assigned by Assignment of Future Advance Deed of Trust and Security
Agreement, dated , 2014, between Prior Lender and Lender, as
amended by Second Amendment to Future Advance Deed of Trust and Security
Agreement, dated , 2014, between Borrower and Lender.
3. Bond Pledge and Security Agreement dated , 2014 executed and
delivered by Borrower to Lender.
4. Any other loan documents executed by Borrower in favor of Lender in connection
with the Loan.
16
$2M672\Vi
EXHIBIT C
FUTURE ADVANCE LEASEHOLD DEED OF TRUST AND SECURITY AGREEMENT
5 WA 6138544.1
(Space above reserved for Recorder of Deeds certification)
Prepared by: Michael F. Flanagan, Esq.
7611 State Line Road, Suite 303
Kansas City, Missouri 64114
Title of Document: Future Advance Leasehold Deed of Trust and Security Agreement
Date of Document: September 1, 2014
Grantor: Argo Innovation Park Lot 6, L.L.C.
Trustee: Michael F. Flanagan, L.L.C.
Beneficiary: Tutera Investments,L.L.C.
Mailing Address: Tutera Investments,L.L.C.
7611 State Line Road, Suite 301
Kansas City, MO 64114
Legal Description: See Exhibit"A" attached hereto
FUTURE ADVANCE LEASEHOLD DEED OF TRUST
AND SECURITY AGREEMENT
(This Future Advance Leasehold Deed of Trust contemplates
future advances and is governed by RSMo.§443.055)
THIS FUTURE ADVANCE LEASEHOLD DEED OF TRUST AND SECURITY
AGREEMENT (the"Deed of Trust") is made as of September 1, 2014 by and between ARGO
INNOVATION PARK LOT 6, L.L.C., a Missouri limited liability company (the "Grantor"),
whose address for notice purposes is 7611 State Line Road, Suite 301, Kansas City, Missouri
64114, and MICHAEL F. FLANAGAN, L.L.C. (the "Trustee"), whose address for notice
purposes is 7611 State Line Road, Suite 303, Kansas City, Missouri 64114, for the benefit of
TUTERA INVESTMENTS, L.L.C., a Missouri limited liability company (the "Beneficiary"),
whose address for notice purposes is 7611 State Line Road, Suite 301, Kansas City, Missouri
64114.
WITNESSETH:
A. The City of Riverside, Missouri, a political subdivision and body corporate
organized and existing under the laws of the State of Missouri (the "City"), issued the
$18,730,000 (Aggregate Maximum Principal Amount) City of Riverside Taxable Industrial
Revenue Bonds (Argo Innovation Park Lot 6, L.L.C. Project) Series 2014 (the "Bonds"),
pursuant to a Trust Indenture dated as of June 1, 2014 (the "Indenture") between the City and
Security Bank of Kansas City, a Kansas banking corporation, as trustee (the "Trustee"), the
proceeds of which are being used to construct an approximately 275,500 square foot industrial
facility (the "Project') upon certain real property located in Riverside, Platte County, Missouri
which is legally described on Exhibit "A" attached hereto and incorporated herein by reference
(the "Real Property").
B. The City is leasing the Real Property and the Project (collectively, the
"Premises") to Grantor pursuant to a Lease Agreement dated as of June 1, 2014 (the "Riverside
Lease Agreement')between Grantor and the City.
C. In addition to the Bonds,the construction of the Project is being financed with the
proceeds of a loan in the amount of up to $6,500,000 which Valley View State Bank ("Valley
View") has agreed to make to Grantor pursuant to a Promissory Note dated May 1, 2014, as
amended and restated from time to time (the "Valley View Note"), the repayment of which is
secured by a Deed of Trust dated as of May 1, 2014, as amended and restated from time to time
(the "Valley View Deed of Trust') which was recorded on May 9, 2014 as Instrument No.
2014004766 in Book 1227 at Page 804 in the Office of the Recorder of Deeds for Platte County,
Missouri.
D. In addition to the Bonds and the Valley View Note, the construction of the Project
is being financed with the proceeds of a loan in the amount of up to $12,000,000 (the "Loan")
which Beneficiary has agreed to make to Grantor pursuant to that certain Promissory Note of
even date herewith (the "Note") between Grantor and Beneficiary, in and by which said Note,
Grantor promises to pay the said sums and interest at the rate or rates as provided in said Note.
The maturity date of the Note is December 31, 2020 (the "Maturity Date"). All such payments
on account of the Indebtedness (as such term is hereinafter defined) evidenced by the Note shall
be first applied as set forth in the Note and all of said principal and interest shall be payable at
such place as the holder of the Note may from time to time in writing appoint, and in the absence
of such appointment, then at the address hereinbefore specified; and
E. Grantor, in order to induce Beneficiary to make the aforementioned Loan, has
agreed to and by these presents does hereby execute this Deed of Trust and hereby subjects the
Mortgaged Property (as hereinafter defined)to the lien of this Deed of Trust.
AGREEMENT:
NOW THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars
($10.00) in hand paid, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and also in consideration of the debt hereinbefore mentioned,
and as security for the debt hereinbefore mentioned, Grantor does hereby irrevocably GRANT,
BARGAIN, SELL, ALIEN, REMISE, RELEASE, CONVEY, ASSIGN AND CONFIRM
unto Trustee, it's successors and assigns, with power of sale, all of Grantor's leasehold estate,
right, title and interest in, to and under and grants a security interest in the Riverside Lease and
the Premises, and in any and all of the following property whether now owned or held or
hereafter acquired:
(a) All and singular the reversions or remainders in and to said Riverside
Lease and Premises and the tenements, hereditaments, easements, rights-of-way or use,
rights (including alley, drainage, crop, timber, logging and cutting, agricultural,
horticultural, mineral, water, oil and gas rights),privileges, royalties and appurtenances to
said Premises, now or hereafter belonging or in any way appertaining thereto, including
any such right, title, interest in, to or under any agreement or right granting, conveying or
creating, for the benefit of said Premises, any easement, right or license in any way
affecting other property and in, to or under any streets, ways, alleys, vaults, gores or
strips of land adjoining said Premises or any parcel thereof, or in or to the air space over
said Premises, all rights of ingress and egress by motor vehicles to parking facilities on or
with said Premises, and all claims or demands of Grantor, either at law or in equity, in
possession or expectancy, of, in or to the same.
(b) All buildings, structures, facilities and other improvements now or
hereafter located on the Premises, and all building material, building equipment and
fixtures of every kind and nature now or hereafter owned by Grantor and located on the
Premises or attached to, contained in, or used in any such buildings, structures, facilities
or other improvements (such fixtures collectively called the "Fixtures"), and all
appurtenances and additions thereto and betterments, renewals, substitutions and
replacements thereof, owned by Grantor or in which Grantor has or shall acquire an
interest(all of the foregoing hereinafter collectively called the"Improvements").
(c) All chattels and articles of personal property, and all appurtenances and
additions thereto and betterments, renewals, substitutions and replacements thereof, of
every character and wherever situated, now or hereafter owned, constructed or acquired
by Grantor or in which Grantor has or shall acquire an ownership interest, which is in any
2
way belonging, relating or appertaining to, or located on the Premises herein described or
the buildings and Improvements now erected or to be erected thereon, or used or intended
to be used in connection with the Premises, which is used in the operation of the
buildings and Improvements, situated thereon, or placed on any part thereof, though not
attached thereto (all of the foregoing hereinafter collectively called the "Equipment").
Without limitation, Grantor hereby grants to Beneficiary (if applicable) a security interest
in and to all of Grantor's present and future Equipment, and Beneficiary shall have, in
addition to all rights and remedies provided in the Security Documents, all of the rights
and remedies of a "secured party" under the Uniform Commercial Code of the State of
Missouri. Equipment shall include any and all fixtures, appliances, machinery and
equipment of any nature whatsoever, partitions, screens, awnings, shades, blinds, curtains
and other articles of personal property at any time now or hereafter installed in, attached
to or situated in or upon the Premises or the Improvements, whether or not the personal
property is or shall be affixed thereto, all to the extent owned by Grantor, including,
without limiting the generality of the foregoing, all plants, f imaces, incinerating and
power equipment, boilers, machinery, engines, stokers, pumps, heaters, tanks,
compressors, dynamos, motors, electrical transformers, fittings, siding, pipe, pipe
connections, conduits, ducts, partitions, communication systems, storm and screen
windows, doors, furniture, furnishings, elevators and motors, built-in filing cabinets,
shelves, water coolers, signs, tools, switchboards and all equipment, appliances and
apparatus of every kind and description now or hereafter affixed or attached to or
contained within and used or procured for use in connection with said buildings or
improvements for heating necessary for operation, cooling, lighting, plumbing, lifting,
cleaning, fire extinguishing and preventing, communication, ventilating, sprinkling,
irrigating, refrigerating or air conditioning, or for providing water, gas, electricity or other
services or for general operation of the buildings and Improvements, or the plan or
business situate or operated thereon. Such security interest shall extend to and include as
well as any and all proceeds of such fixtures and personal property and any and all
subsequently acquired fixtures and personal property by way of replacement, substitution,
addition or otherwise, all materials and work in process and the proceeds thereof.
(d) All now owned and hereafter acquired accounts, contract rights, chattel
paper, general intangibles (including, but not limited to, all of Grantor's now existing or
hereafter arising tax and duty refunds, prepaid expenses, all now owned or hereafter
acquired patents, patent applications, trademarks, trademark applications, copyrights,
copyright applications, tradenames and tradestyles, license agreements, customer lists,
blueprints, drawings and specifications relative to the rendering of services or the sale or
manufacture of goods), documents and instruments, whether now owned or hereafter
acquired by Grantor; Grantor's interest in the goods represented by all accounts and all
returned, reclaimed or repossessed goods with respect thereto; all contracts and rights of
Grantor for the sale of its shares; all of Grantor's present and future rights as an unpaid
vendor including stoppage in transit, replevin or reclamation; all additional amounts now
or hereafter due to Grantor from any account debtor and all construction funds
irrespective of whether such additional amounts have been specifically assigned to
Beneficiary; all guarantees, mortgages on real and personal property, letters of credit,
trust receipts, bankers' acceptances, choses in action or other agreements or property
securing or relating to any of the items referred to above; all monies, deposits, securities,
3
bank accounts, instruments, credits and other property now or hereafter held by
Beneficiary or any other entity which at any time participates in Beneficiary's financing
of Grantor; all licenses, permits, franchises, certificates and other rights, privileges and
documents obtained in connection with or necessary in the operation of the Premises
and/or the Improvements; all plans and specifications, architectural contracts,
construction contracts, all leases with respect to any part of the Premises and/or the
Improvements, and all rents, income, revenues, royalties, bonuses, accounts, issues and
profits arising out of the operation of the Premises and/or the Improvements; and all
rights and remedies of Grantor under or in connection with such collateral. There is also
transferred, set over and assigned hereby by Grantor to Beneficiary, its successors and
assigns, all leases and use agreements of machinery, equipment and other personal
property of Grantor in the categories hereinabove set forth, under which Grantor is the
lessee of, or entitled to use, such items, and Grantor agrees to execute and deliver to
Beneficiary specific separate assignments to Beneficiary of such leases and agreements
when requested by Beneficiary; but nothing herein constitutes Beneficiary's consent to
any financing of any fixtures or personal property, and nothing herein shall obligate
Beneficiary to perform any obligations of Grantor under any such leases or agreements
unless it so chooses, which obligations Grantor hereby covenants and agrees to well and
punctually perform; and
(e) All now owned and hereafter acquired inventory, including, without
limitation all raw materials, supplies, work-in-process, finished and semifinished
inventory of whatever kind or nature; and all labels and other devices, names and marks
affixed or to be affixed thereto for purposes of selling or identifying the same or the
seller, manufacturer or licensor thereof, and all right, title and interest of Grantor therein
or thereto, wherever located, whether now owned or hereafter acquired by Grantor;
(i) all of Grantor's books and records relating to any of the above
whether presently existing or hereafter arising including without limitation, all
tapes, cards, computer programs, computer data and software in possession or
control of Grantor or any computer services bureau; and
(ii) any and all products and proceeds of the foregoing in any form,
including without limitation any claims by Grantor against third-parties for loss,
damage or destruction of any or all of the foregoing and all insurance proceeds
relating to all of the above.
(f) All unearned premiums, accrued, accruing or to accrue under insurance
policies now or hereafter obtained by Grantor, all proceeds of the conversion, voluntary
or involuntary, of any of the property described in these GRANTING CLAUSES into
cash or other liquidated claims, including proceeds of hazard, title and other insurance,
and all judgments, damages, awards, settlements and compensation (including interest
thereon) heretofore or hereafter made to the present and all subsequent owners of the
Premises, the Improvements, the Equipment and/or any other property or rights
encumbered or conveyed hereby for any injury to or decrease in the value thereof for any
reason, or by any governmental or other lawful authority for the taking by eminent
4
domain, condemnation or otherwise of all or any part thereof, including awards for any
change of grade or streets.
(g) The collateral listed in these GRANTING CLAUSES and any monies on
deposit for the payment of real estate taxes, insurance premiums or special assessments
against the Premises and all proceeds paid for damage done to the collateral described in
these GRANTING CLAUSES or in or on the Premises and all proceeds of any award or
claim for damages for any of the collateral described in these GRANTING CLAUSES or
in or on the Premises taken or damaged under the power of eminent domain or by
condemnation and all rents, issues and profits of and from the Premises and all leases or
subleases of the Premises.
The items set forth in the GRANTING CLAUSES above are sometimes hereinafter separately
referred to as "Collateral". THIS DEED OF TRUST IS A SECURITY AGREEMENT WITH
RESPECT TO THE COLLATERAL; AND TO THE EXTENT THAT THE COLLATERAL
ARE GOODS WHICH ARE, OR ARE TO BECOME, FIXTURES, THIS DEED OF TRUST IS
RECORDED AS A FIXTURE FILING, WITH GRANTOR AS THE DEBTOR AND
BENEFICIARY AS THE SECURED PARTY. The Riverside Lease, the Premises and the
Collateral are sometimes collectively referred to as the "Mortgaged Property."
Grantor makes the foregoing grant to Trustee to hold the Premises in trust for the benefit of
Beneficiary and for the purposes and upon the terms and conditions hereinafter set forth.
TO HAVE AND TO HOLD the same, together with all the privileges and
appurtenances thereunto belonging: In trust nevertheless, in case of default by Grantor
hereunder, then upon notice and demand to the extent provided herein, or required by law, to
foreclose this Deed of Trust, and to sell and dispose of the Mortgaged Property (or any part
thereof) and all the right, title and interest of Grantor therein in the manner as may then be
provided by law and to issue, execute and deliver its certificate of purchase, trustee's deed or
certificate of redemption all as then may be provided herein and by law. The sale or sales and
said deed or deeds so made shall be a perpetual bar, both in law and equity, against Grantor and
all other persons claiming the Mortgaged Property or any part hereof by, from, through or under
Grantor.
IN TRUST HOWEVER, FOR THE PURPOSE OF SECURING, unto Beneficiary, its
successors and assigns in such order of priority as Beneficiary may elect:
(1) All indebtedness and obligations arising pursuant to the provisions of this
Deed of Trust, the Note as it may be renewed, extended or amended from time to time,
plus all interest thereon and other sums due pursuant thereto;
(2) All indebtedness and obligations arising pursuant to the Loan, including but
not limited to the mortgages, deeds of trust, assignments and security agreements more
fully described on Exhibit `B" attached hereto and incorporated herein and any other
security agreements, assignments, deeds of trust, mortgages or other agreements securing
the Note, regardless of whether any of the same encumber or pertain to the Mortgaged
Property;
5
(3) Any and all additional advances made by Beneficiary to protect or preserve
the Premises or the security created hereby on the Premises, or for taxes, assessments or
insurance premiums as hereafter provided, or for performance of any of Grantor's
obligations hereunder, or for any other purpose provided herein (whether or not the
original Grantor remains the owner of the Premises at the time of such advances),
provided, however, nothing hereunder shall be deemed to obligate Beneficiary to make
any such advances;
(4) All indebtedness and obligations arising pursuant to any instrument
evidencing the advance of additional sums by Beneficiary to Grantor; and
(5) Any and all renewals or extensions of and substitutions for any of the above
referenced indebtedness or obligations, or any part thereof.
The word "Indebtedness", as used herein, shall mean all of the indebtedness, obligations
and liabilities described or referred to in clauses (1) through (5) above inclusive, and the term
"Security Documents" shall collectively refer to all agreements evidencing or securing the
Indebtedness including, but not limited to, those described on Exhibit"B".
PROVIDED, HOWEVER, that if Grantor shall pay or cause to be paid to the holder(s)
of the Note the principal and interest, and all other charges to become due thereupon at the time
and in the manner stipulated therein, and shall pay or cause to be paid all other sums payable
hereunder and all Indebtedness hereby secured, then, in such case, the estate, right, title and
interest of Trustee and Beneficiary in the Mortgaged Property shall cease, determine and become
void, and upon proof being given to the satisfaction of Trustee and Beneficiary that the Note,
together with interest, and all other charges due thereon has been paid or satisfied, and upon
payment of all fees, costs, charges, expenses and liabilities chargeable or incurred or to be
incurred by Trustee, and of any other sums as herein provided, Trustee or Beneficiary, as the
case may be, shall, upon receipt of the written request of Grantor and at Grantor's expense (to
the extent permitted by law)cancel, release and discharge this Deed of Trust.
Article One
Grantor covenants, acknowledges and agrees to and for the benefit of Trustee and
Beneficiary:
1.01 Title.
(a) Grantor warrants that it has good and marketable title to a leasehold estate in
the Premises pursuant to the Riverside Lease and has good and marketable title to the
Collateral, subject to no liens, charges or encumbrances except the Valley View Deed of
Trust and the Permitted Exceptions (as hereinafter defined), that Grantor has full power
and authority to mortgage and convey the Mortgaged Property in the manner and form
herein done or intended hereafter to be done; that this Deed of Trust is and shall remain a
valid and enforceable second lien on the Premises and the Collateral subject only to those
exceptions to title described in the mortgagee's title insurance policy issued in
conjunction with the Loan (hereinafter called the "Permitted Exceptions"); that Grantor
6
and its successors and assigns shall warrant and defend the same and the priority of this
lien forever against the lawful claims and demands of all persons whomsoever, and that
this covenant shall not be extinguished by any foreclosure hereof but shall run with the
land.
(b) Grantor has and shall maintain title to the Collateral including any additions
or replacements thereto free of all security interests, liens and encumbrances, other than
the security interest hereunder and other than as disclosed to and accepted by Beneficiary
in writing, and has good right to subject the Collateral to the security interest hereunder.
(c) Grantor shall, at the cost of Grantor, and without expense to Trustee or
Beneficiary, execute, acknowledge and deliver all and every such further acts, deeds,
conveyances, deeds of trust, assignments, notices of assignments, transfers and
assurances as Beneficiary or Trustee shall from time to time reasonably require, for the
better assuring, conveying, assigning, transferring and confirming unto Trustee or
Beneficiary the Premises, the Collateral and the rights hereby conveyed or assigned or
intended now or hereafter so to be, or which Grantor may be or may hereafter become
bound to convey or assign to Trustee or Beneficiary, or for carrying out the intention of
facilitating the performance of the terms of this Deed of Trust, or for filing, registering or
recording this Deed of Trust and, on demand, shall execute and deliver, and hereby
authorizes Trustee and Beneficiary to execute in the name of Grantor to the extent it may
lawfully do so, one or more financing statements, chattel mortgages or comparable
security instruments, to evidence more effectively the lien hereof upon the Collateral.
(d) Grantor forthwith upon the execution and delivery of this Deed of Trust and
thereafter from time to time, upon the written request of Beneficiary, shall cause this
Deed of Trust, and any security instrument creating a lien or evidencing the lien hereof
upon the Collateral and each instrument of further assurance to be filed, registered or
recorded in such manner and in such places as may be required by any present or future
law in order to publish notice of and fully to protect the lien hereof upon, and the interest
of Trustee and Beneficiary in the Mortgaged Property, any and all at said Grantor's
expense.
(e) Grantor shall pay all fees and expenses incident to the preparation, execution
and acknowledgment of this Deed of Trust or any of the documents related thereto,
including any mortgage registration tax or similar charge, the premium for an ALTA
lender's title insurance policy and all other charges arising out of or in connection with
the execution and delivery of the Note,this Deed of Trust, any deed of trust supplemental
hereto, any security instrument with respect to the Collateral, any Security Document or
any instrument of further assurance.
(f) Grantor shall do all things reasonably necessary to preserve and keep in full
force and effect its existence, its franchises, rights and privileges as a legal entity under
the laws of the state of its formation and shall comply with all regulations, rules,
ordinances, statutes, orders and decrees of any governmental authority or court applicable
to Grantor or to the Premises or any part thereof.
7
(g) Grantor shall abide by any and all covenants and restrictions affecting the
Premises, and pay when due any assessments pursuant thereto.
1.02 Payment of Note and Reserves.
(a) Grantor shall promptly and punctually pay all principal and interest as
provided in the Note, together with any late charges, prepayment premium, and all other
sums to become due in respect to the Note, according to the true intent and meaning
thereof. Upon written request of Beneficiary following an Event of Default (as
hereinafter defined), Grantor shall also pay to Beneficiary, together with and in addition
to the monthly payments of principal and interest payable under the terms of the Note
secured hereby, on the date set forth therein for the making of monthly payments, until
said Note is fully paid, a sum, as estimated by Beneficiary equal to the taxes and special
assessments next due on the Premises covered by this Deed of Trust, plus the premiums
that will next become due and payable on insurance policies as may be required
hereunder, Grantor agreeing to deliver promptly to Beneficiary all bills and notices
thereof, less all sums already paid therefor, divided by the number of months to elapse
before one (1) month prior to the date when such premiums, taxes and special
assessments will become delinquent, such sums to be held by Beneficiary to pay said
premiums, taxes and special assessments. Such payments, hereinafter referred to as
"Reserves", are to be held with an allowance of interest or dividend to Grantor, shall be
kept separate and apart from other funds of Beneficiary and shall be deemed trust funds
held for the benefit of Grantor. All payments mentioned in this paragraph and all
payments to be made under the Note secured hereby shall be added together and the
aggregate amount thereof shall be applied by Beneficiary to the following items in such
order as Beneficiary shall elect: (i) taxes, special assessments, insurance premiums; (ii)
interest, late charges and prepayment premiums on the Note secured hereby; and (iii)
amortization of the principal of said Note.
(b) Upon assignment of the Deed of Trust by Beneficiary, any Reserves on hand
shall be turned over to the assignee and any responsibility of Beneficiary with respect
thereto shall terminate.
(c) If the total of the Reserves shall exceed the amount of payments actually
applied by Beneficiary, such excess may be credited by Beneficiary on subsequent
payments to be made by Grantor or, at the option of Beneficiary, refunded to Grantor or
its successors in interest as may appear on the records of Beneficiary. If, however, the
Reserves shall not be sufficient to pay the sums required when the same shall become due
and payable, Grantor shall immediately deposit with Beneficiary the full amount of any
such deficiency. If there shall be a default under any of the provisions of this Deed of
Trust, the Note, or any Security Document, Beneficiary may apply at any time, the
balance of the Reserves, against such sums due and payable under the Note or under any
instrument constituting additional security for said Note.
1.03 Care of the Premises. Grantor shall keep the Premises in good operating order,
repair and condition and shall not commit or permit any waste thereof. Grantor shall make all
repairs, replacements, renewals, additions and improvements and complete and restore promptly
8
and in good workmanlike manner any building or improvements which may be constructed,
damaged, or destroyed thereon, and pay when due all costs incurred therefor. Except in the
ordinary course of business, Grantor shall not remove from the Premises or demolish any of the
Collateral conveyed hereby, nor demolish or materially alter the Mortgaged Property without the
prior written consent of Beneficiary. Grantor shall permit Beneficiary or its agents the
opportunity to inspect the Premises, including the interior of any structures, at any reasonable
time upon reasonable notice.
1.04 Compliance with Laws. Grantor shall comply and shall cause all tenants to comply
with all laws, ordinances, regulations, covenants, conditions and restrictions affecting said
Mortgaged Property or the operation thereof, and shall pay all fees or charges of any kind in
connection therewith. Grantor will perform and comply promptly with (and cause all tenants to
comply with), and cause the Mortgaged Property to be maintained, used and operated in
accordance with, any and all (a) present and future laws, ordinances, rules, regulations and
requirements of every duly constituted governmental or quasi-governmental authority or agency
applicable to Grantor or the Mortgaged Property including, without limitation, all applicable
federal, state and local laws pertaining to air and water quality, hazardous waste, waste disposal,
air emissions and other environmental matters, all zoning and other land use matters, and rules,
regulations and ordinances of the United States Environmental Protection Agency and all other
applicable federal, state and local agencies and bureaus; (b) similarly applicable duties or
obligations of any kind imposed under any Permitted Exceptions, or otherwise by law, covenant,
condition, agreement or easement, public or private; and (d) policies of insurance at any time in
force with respect to the Mortgaged Property. If Grantor receives any notice that Grantor or the
Mortgaged Property is in default under or is not in compliance with any of the foregoing, or
receives notice of any proceeding initiated under or with respect to any of the foregoing, Grantor
will promptly furnish a copy of such notice to Beneficiary.
Grantor hereby represents and warrants it has obtained, or will require any tenants to
obtain, all required licenses, permits, franchise agreements and other necessary agreements to
operate the Mortgaged Property as contemplated by the Note, Grantor agrees to provide
Beneficiary with written notice of any suspension, revocation, termination or default under any
such agreements or any threatened suspension, revocation, termination or default thereunder.
Grantor hereby represents and warrants that except as permitted by and in compliance
with local, state and Federal laws, neither Grantor or to the best of Grantor's knowledge any
tenant of the Mortgaged Property nor, to the best of Grantor's knowledge, any previous owner of
the Mortgaged Property, or any adjoining property, used, generated, stored, manufactured, or
disposed of, on, under or surrounding the Mortgaged Property any hazardous waste, toxic
substances or related materials (hereafter referred to as "Hazardous Materials"). For the
purposes of this Deed of Trust, Hazardous Materials shall include, but shall not be limited to, any
substance, material or waste which is or becomes regulated by any State or Local government
authority or the United States Government. The term "Hazardous Materials" includes, without
limitation, any material or substance which is listed in the United States Department of
Transportation Hazardous Materials Table (49 CFR 172.101) as amended from time to time.
Further, Grantor agrees that, except as permitted by and in compliance with local, state and
federal laws, it will not permit the use, generation, manufacture, disposal or storage of any toxic
and/or Hazardous Materials in, on and/or around the Premises now or at any future time and will
9
indemnify and hold Beneficiary harmless from and against any loss, liability, cost, expense or
action(s) which may result in connection with Hazardous Materials and/or toxic material(s) as
they relate to the Premises; provided, however, this indemnity shall not apply to any liability or
loss to the extent such liability or loss was caused by the negligence or misconduct of the
Beneficiary. The foregoing indemnification shall survive repayment of the Indebtedness and the
foreclosure, deed in lieu of foreclosure, release or assignment of this Deed of Trust.
If at any time it is determined that there are any toxic and/or Hazardous Materials located
on the subject Premises, Grantor shall diligently commence to take such action, at its sole
expense, to comply with all environmental requirements pertaining to such materials. Failure of
Grantor to comply with all environmental requirements of federal, state or local law, statute,
ordinance or regulation, rule, court or administrative order or decree, or private agreement, or to
keep the Mortgaged Property free of any lien imposed pursuant to such laws, rules, regulations,
shall constitute and be a default or an Event of Default under this Deed of Trust.
Grantor shall not initiate, join in or consent to any change in any private restrictive
covenant, zoning ordinance, easement or other public or private restrictions limiting or defining
the uses which may be made of the Premises, or any part thereof, without giving Beneficiary
twenty (20) days prior written notice.
1.05 Insurance.
(a) Grantor shall cause all buildings, improvements and personal property now
or hereafter situated on said Premises insured on a so-called "all risk" or comprehensive
basis, in an amount not less than the full replacement cost of the Mortgaged Property. In
addition, Grantor shall cause such other insurance to be obtained as may be reasonably
required by Beneficiary, including, without limitation(i)rent loss or business interruption
insurance in an amount at least sufficient to cover debt service and property expenses for
a period of twelve (12) months, and (ii) flood and earthquake insurance whenever in the
opinion of Beneficiary such protection is necessary. Grantor shall also provide liability
insurance with such limits for personal injury and death and property damage as
Beneficiary may reasonably require.
(b) All policies of insurance to be famished hereunder shall be in forms,
companies and amounts satisfactory to Beneficiary and shall name Beneficiary as an
additional insured and a mortgagee thereunder, including a provision requiring that the
coverage evidenced thereby shall not be terminated or materially modified without thirty
(30) days' prior written notice to and approval by Beneficiary. Grantor shall deliver
original policies or binding certificates of insurance, including additional and renewal
policies (or binding certificates), to Beneficiary, and, in the case of insurance about to
expire, shall deliver original renewal policies or binding certificates of insurance not less
than ten (10) days prior to their respective dates of expiration. Grantor shall promptly
notify Beneficiary of any loss whether covered by insurance or not.
(c) If Grantor fails to carry any insurance required to be carried by Grantor
under the terms of this Deed of Trust, Beneficiary at its option may procure and maintain
10
such insurance and Grantor will promptly reimburse Beneficiary for any premiums paid
by Beneficiary for such insurance.
1.06 Casual . Grantor shall promptly notify Beneficiary of any loss whether covered
by insurance or not and will commence proof of loss with the casualty insurer. Beneficiary
reserves the right to direct and approve all proof of loss and claims procedures. If proof of loss is
not made promptly by Grantor, Beneficiary is authorized by Grantor to do so. In case of loss or
damage by fire or other casualty, Beneficiary is authorized (i) to settle and adjust any claim
under insurance policies which insure against such risks, or (ii) to allow Grantor to agree with
the insurance company or companies on the amount to be paid in regard to such loss. In either
case, Beneficiary is authorized to collect and receipt for any such insurance money. Such
insurance proceeds may, at the option of Beneficiary, be applied in the reduction of the
Indebtedness secured hereby, whether due or not, or be held by Beneficiary and used to
reimburse Grantor for the cost of the rebuilding or restoration of buildings or improvements on
said Premises. If, for any reason, Beneficiary elects to make said proceeds available to
reimburse Grantor for the cost of the rebuilding or restoration of the buildings or improvements
on said Premises, such proceeds shall be made available during the course of restoration, in the
manner and under the conditions that Beneficiary may in its reasonable discretion require,
including without limitation, (i) Beneficiary's approval of plans and specifications of such work
and approval of the contractors and subcontractors performing such work prior to the time such
work is commenced, (ii) Grantor's delivery of suitable completion or performance bonds and
builder's All Risk insurance, (iii) delivery of suitable lien waivers and title insurance
endorsements; (iv) Grantor's satisfaction of Beneficiary's other normal and customary
construction loan requirements; (v) acknowledgment that no insurer claims any rights of
participation and/or assignment of rights with respect to the Indebtedness secured hereby; and
(vi)the buildings and improvements shall be so restored or rebuilt so as to be of at least equal
value and substantially the same character as prior to such damage or destruction. If the
proceeds are made available by Beneficiary to reimburse Grantor for the cost of said rebuilding
or restoration, any surplus which may remain out of said insurance proceeds after payment of
such cost of rebuilding or restoration shall, at the option of Beneficiary, be applied on account of
the Indebtedness secured hereby or be paid to Grantor. If Beneficiary exercises its option to
apply such proceeds to the reduction of the Indebtedness secured hereby, the same shall be done
without prepayment penalty. Anything in this Deed of Trust to the contrary notwithstanding, if
any of the improvements now or hereafter on the Premises are damaged or destroyed by fire or
other insured casualty or are taken pursuant to eminent domain proceedings (hereinafter
collectively referred to as "Casualty"), and: (a)Grantor is not in default under this Deed of
Trust, the Note or any Security Document, (b)the insurance or condemnation proceeds plus
additional monies made available by Grantor, are sufficient to restore or reconstruct such
improvements, (c)the restoration or reconstruction of the improvements is economically feasible
in the reasonable judgment of Beneficiary, and (d)the Casualty occurs with at least twelve (12)
months remaining in the term of the Loan, the insurance or condemnation proceeds received by
Beneficiary shall be disbursed by Beneficiary to Grantor for the restoration or reconstruction of
the improvements subject to and in accordance with such procedures and conditions as are set
forth in Section 1.06 hereof.
1.07 Condemnation. Grantor, immediately upon obtaining knowledge of the institution
of any proceeding for the condemnation of the Mortgaged Property or any portion thereof, shall
I1
notify Beneficiary of the pendency thereof. Grantor hereby assigns, transfers and sets over unto
Beneficiary all compensation, rights of action, the entire proceeds of any award and any claim
for damages for any of the Mortgaged Property taken or damaged under the power of eminent
domain or by condemnation or by sale in lieu thereof. Grantor may, at its option, commence,
appear in and prosecute, in its own name, any action or proceeding, or make any compromise or
settlement, in connection with such condemnation, taking under the power of eminent domain or
sale in lieu thereof. Beneficiary, at its option, may elect to apply the proceeds of the award upon
or in reduction of the Indebtedness secured hereby, whether due or not, or hold said proceeds
without any allowance of interest and make available for restoration or rebuilding of the
Premises. In the event that Beneficiary elects to make said proceeds available to reimburse
Grantor for the cost of the rebuilding or restoration of the buildings or improvements on said
Premises, such proceeds shall be made available in the manner and under the conditions
provided under Section 1.06 hereinabove. If the proceeds are made available by Beneficiary to
reimburse Grantor for the cost of said rebuilding or restoration, any surplus which may remain
out of said award after payment of such cost of rebuilding or restoration shall at the option of
Beneficiary be applied on account of the Indebtedness secured hereby or be paid to Grantor.
Grantor agrees to execute such further assignments of any compensation, award, damages, right
of action and proceeds, as Beneficiary may reasonably require. If Beneficiary exercises its
option to apply such proceeds to the reduction of the Indebtedness secured hereby, then said
prepayment shall be done without penalty.
1.08 Liens and Encumbrances. Grantor shall not, without Beneficiary's prior express
written consent, which shall not be unreasonably withheld, permit the creation of any liens or
encumbrances on the Premises other than the lien of the Valley View Deed of Trust, the lien of
this Deed of Trust and other Security Documents, and shall pay when due all obligations, lawful
claims or demands of any person which, if unpaid, might result in, or permit the creation of, a
lien or encumbrance on the Mortgaged Property or on the rents, issues, income and profits
arising therefrom, whether such lien would be senior or subordinate hereto, including, but
without limiting the generality of the foregoing, all claims of mechanics, materialmen, laborers
and others for work or labor performed, or materials or supplies furnished in connection with any
work of demolition, alteration, improvement of or construction upon the Mortgaged Property,
and Grantor will do or cause to be done everything necessary so that the lien of this Deed of
Trust shall be fully preserved, at the cost of Grantor, without expense to Beneficiary.
1.09 Taxes and Assessments. Grantor shall pay in full when due, and in any event
before any penalty or interest attaches, all general taxes and assessments, special taxes, special
assessments, water charges, sewer service charges and all other charges against the Mortgaged
Property and shall furnish to Beneficiary official receipts evidencing the payment thereof.
1.10 Indemnification. Grantor shall appear in and defend any suit, action or proceeding
that might in any way and in the reasonable judgment of Beneficiary affect the value of the
Mortgaged Property, the priority of this Deed of Trust or the rights and powers of Beneficiary or
Trustee in the Mortgaged Property. Grantor shall, at all times, indemnify, hold harmless and
reimburse Beneficiary for any and all loss, damage, expense or cost, including cost of evidence
of title and reasonable attorneys' fees to the extent permitted by law, arising out of or incurred in
connection with any such suit, action or proceeding, and the sum of such expenditures shall be
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secured by this Deed of Trust and shall bear interest at the rate(s) provided in the Note and shall
be due and payable on demand.
1.11 Chance of Title or Additional Financine.
(a) In order to induce Beneficiary to make the Loan, evidenced by the Note,
Grantor agrees that if the Mortgaged Property or any part thereof or interest therein is
sold, assigned, transferred, conveyed, further mortgaged, encumbered or otherwise
alienated (including by Contract for Deed or Installment Sale) (hereinafter "Transfers"),
whether voluntarily or involuntarily or by operation of law, or that if the management of
the Mortgaged Property is changed, in either or any case without the prior written consent
of Beneficiary, Beneficiary, at its option, may declare the Note secured hereby and all
other Indebtedness to be forthwith due and payable. If and to the extent allowable by
law, Beneficiary may condition its consent to transfer upon an increase in the interest rate
of the Note. If the interest rate is so increased, the monthly installment payment will be
increased accordingly, and either Grantor or the new owner will pay all legal and other
fees and expenses incurred due to the necessity of amending the existing loan documents.
(b) A change in the legal or equitable title of the Mortgaged Property, or any
part thereof, or in the beneficial ownership of the Mortgaged Property, whether or not of
record and whether or not for consideration, or sale or other disposition of partnership
interest in grantor shall be deemed a Transfer of an interest in the Premises.
(c) In the event ownership of the Mortgaged Property, or any part thereof,
becomes vested in a person or persons other than Grantor, without the prior written
approval of Beneficiary, which shall not be unreasonably withheld, Beneficiary may,
after giving reasonable notice to Grantor, waive such default and deal with such
successor or successors in interest with reference to this Deed of Trust and the Note in the
same manner as with Grantor, without in any way releasing, discharging or otherwise
affecting the liability of Grantor hereunder, or the Indebtedness hereby secured. No sale
of the Mortgaged Property, no forbearance on the part of Beneficiary, no extension of the
time for the payment of the Indebtedness or any change in the terms thereof consented to
by Beneficiary shall in any way whatsoever operate to release, discharge, modify, change
or affect the original liability of Grantor herein, either in whole or in part, nor shall the
full force and effect of this lien be altered thereby. Any deed conveying the Premises, or
any part thereof, shall, at Beneficiary's option, provide that the grantee thereunder
assumes all of Grantor's obligations under this Deed of Trust, the Note and all other
instruments or agreements evidencing or securing the repayment of the Indebtedness. In
the event such deed shall not contain such assumption language, the grantee under such
deed shall nevertheless be deemed to have assumed such obligations by acquiring the
Premises, the Collateral or any portion thereof, encumbered by this Deed of Trust.
(d) Grantor shall not voluntarily, involuntarily or by operation of law sell,
assign, transfer or otherwise dispose of the Collateral or any interest therein and shall not
otherwise do or permit anything to be done or occur that may impair the Collateral as
security hereunder except so long as this Deed of Trust and the Security Agreement are
not in default, Grantor shall be permitted to sell or otherwise dispose of the Collateral
13
when worn out, inadequate, unserviceable or unnecessary for use in the operation of the
Mortgaged Property in the conduct of the business of Grantor, upon replacing the same or
substituting for the same other Collateral at least equal in value to the initial value of that
disposed of and in such a manner so that said Collateral shall be subject to the security
interest created hereby and so that the security interest of Beneficiary hereunder shall be a
first priority security interest in said Collateral.
1.12 Advances; Protection of Security. Should Grantor fail to make any payment or
fail to perform any covenant as herein provided, Beneficiary (but without obligation so to do and
without releasing Grantor from any obligation hereof) may: make or do the same in the manner
and to such extent as Beneficiary may deem necessary to protect the security hereof, Beneficiary
being authorized to enter upon the Premises for such purposes; commence, appear in and defend
any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary; pay, purchase, contest or compromise any encumbrance, charge or lien which in the
reasonable judgment of Beneficiary is prior or superior hereto and, Grantor shall be liable for
reasonable attorneys' fees and expenses incurred by Beneficiary in connection therewith. Any
expenditure in connection herewith shall constitute an advance hereunder and shall bear interest
at the rate of interest provided in the Note.
1.13 Financial Statements and Records. Grantor shall keep and maintain, or shall cause
to be kept and maintained, at Grantor's cost and expense, proper and accurate books, records and
accounts reflecting all items of income and expense in connection with the operation of the
Mortgaged Property. Beneficiary and Beneficiary's agents, accountants and attorneys shall have
the right from time to time upon reasonable prior notice and at all times during normal business
hours upon to examine such books, records and accounts at the office of Grantor or such other
person or entity maintaining such books, records or accounts and to make copies or extracts
thereof as Beneficiary deems reasonably necessary and to discuss Grantor's affairs, finances and
accounts with Grantor, at such reasonable times as may be requested by Beneficiary. Grantor
shall deliver to Beneficiary, within sixty (60) days after the end of each fiscal year, an unaudited
balance sheet of Grantor and the related statements of income and retained earnings for such
fiscal year, all in reasonable detail and certified as complete and correct by Grantor's principal
financial or accounting officer. Grantor shall further provide Beneficiary, on a quarterly basis,
with such interim balance sheet and profit and loss statements as Beneficiary may reasonably
require, which statements shall cover such additional financial matters as Beneficiary may
reasonably request, and shall be certified by Grantor's principal financial or accounting officer.
All of the foregoing financial statements shall fairly and accurately present the financial
condition of the subject thereof In the event that Grantor shall refuse or fail to furnish any
statement as aforedescribed, or in the event such statement shall be inaccurate or false, or in the
event of failure of Grantor to permit Beneficiary or its representatives to inspect the Premises or
the said books and records, such acts of Grantor shall be a default hereunder and Beneficiary
may proceed in accordance with the rights and remedies afforded it under the provisions hereof.
1.14 Time. Grantor agrees that time is of the essence hereof in connection with all
obligations of Grantor herein or in the Note, the Security Documents or any other instruments
constituting additional security for said Note.
14
1.15 Assignment of Rents and Leases. Grantor absolutely and unconditionally assigns
to Beneficiary the rents, issues and profits of the Mortgaged Property as further security for the
payment of the Indebtedness and Grantor grants to Beneficiary the right to enter the Mortgaged
Property for the purpose of collecting the same and to let the Mortgaged Property or any part
thereof, and to apply said rents, issues and profits, after payment of all necessary charges and
expenses, on account of the Indebtedness. This assignment is absolute and effective as of the
date hereof and shall continue in effect until the Indebtedness is fully paid; provided, however,
so long as Grantor is not in default hereunder, Beneficiary hereby waives the right to enter the
Premises for the purpose of collecting said rents, issues and profits, and Grantor shall be entitled
to collect, receive and use said rents, issues and profits, until the occurrence of one or more
Events of Default. Upon and during the continuance of any Event of Default, the right of
Grantor to collect, receive and use said rents, issues and profits, shall be revoked forthwith.
Grantor shall, from time to time after request by Beneficiary, execute, acknowledge and deliver
to Beneficiary, in form reasonably satisfactory to Beneficiary, separate assignments effectuating
the foregoing. Beneficiary shall not be obligated to perform or discharge any obligation or duty
to be performed or discharged by Grantor under any lease or other agreement affecting all or any
part of the Mortgaged Property, and Grantor hereby agrees to indemnify Beneficiary for and hold
it harmless from, any and all liability arising from any such lease or other agreement or any
assignments thereof; provided, however, this indemnity shall not apply to any liability or loss to
the extent such liability or loss was caused by the negligence or misconduct of the Beneficiary.
1.16 SecurityAgreement. It is the intention of the parties hereto that this instrument
shall constitute a Security Agreement within the meaning of the Uniform Commercial Code as
enacted in the State of Missouri (the "Uniform Commercial Code") with respect to the Collateral
and fixtures comprising a part of the Mortgaged Property, and that a security interest shall attach
thereto for the benefit of Beneficiary to further secure the Indebtedness and Grantor hereby
grants a security interest to Beneficiary in the Collateral. Grantor hereby authorizes Beneficiary
to file financing and continuation statements with respect to such Collateral in which Grantor has
a mortgageable interest, without the signature of Grantor whenever lawful, and upon request,
Grantor shall promptly execute financing and continuation statements in form satisfactory to
Beneficiary to further evidence and secure Beneficiary's interest in such Collateral, and shall pay
all filing fees in connection therewith. In the event of the occurrence of one or more defaults or
an Event of Default, Beneficiary, pursuant to the applicable provision of the Uniform
Commercial Code, shall have the option of proceeding as to both real and personal property in
accordance with its rights and remedies in respect of the real property, in which event,the default
provisions of the Uniform Commercial Code shall not apply. The parties agree that in the event
Beneficiary elects to proceed with respect to Collateral constituting personalty or fixtures
separately from the real property, the giving of five (5) days' notice by Beneficiary, designating
the place and time of any public sale or the time after which any private sale or other intended
disposition of such collateral is to be made, shall be deemed to be reasonable notice thereof and
Grantor waives any other notice with respect thereto. In addition, any sale of the Collateral may
be made without having the Collateral present at the sale.
15
Article Two
Default and Remedies
2.01 Events of Default: The occurrence of any of the following (time being of the
essence) shall be deemed to be an Event of Default or default hereunder and, at the option of
Beneficiary, a default under the Note and any Security Document (hereinafter"Event of Default'
or"Default'):
(a) Failure to make any payment when due in accordance with the terms of
the Note secured hereby, this Deed of Trust, or any Security Document, or the Valley
View Note or Valley View Deed of Trust.
(b) Failure to perform or breach of any of the other terms, covenants and
conditions in the Note secured hereby, this Deed of Trust, or any of the Security
Documents, the Valley View Note or Valley View Deed of Trust, or any other instrument
constituting additional security for the Loan and such default shall continue for a period
of thirty (30) days after delivery of written notice of such default from Beneficiary to
Grantor, or if such default is not capable of being cured within said period (but is capable
of being cured), Grantor has substantially commenced to cure said default and Grantor
diligently pursues completion of cure of the default, Grantor shall be granted an
additional reasonable period of time to so cure said default; Provided, however, no notice
or cure periods shall be applicable to a breach of the provisions of Section 1.11 hereof.
(c) Breach of or misrepresentation of any warranties or representations given
by Grantor to Beneficiary herein, in the Note, or in any Security Document including, but
not limited to any financial statements given to Beneficiary as an inducement to make the
Loan.
(d) Should Grantor, or any guarantor of the Note secured hereby, or any
successors and assigns thereof, including without limitation the then current owners of
any interest in the Mortgaged Property:
(i) file a petition under the Federal Bankruptcy Code or any similar
law, state or federal, whether now or hereafter existing (hereafter referred to
as a"Bankruptcy Proceeding"); or
(ii) file any answer admitting insolvency or inability to pay its debts;
or
(iii) be the subject of any petition of involuntary Bankruptcy, which
remains undismissed for a period of sixty(60) days; or
(iv) be the subject of an order for relief against it in any Bankruptcy
Proceeding; or
16
(v) have a custodian or trustee or receiver appointed for or have any
court take jurisdiction of its property, or the major part thereof, in any involuntary
proceeding for the purpose of reorganization, arrangement, dissolution, or
liquidation; or
(vi) make an assignment for the benefit of its creditors; or
(vii) admit in writing its inability to pay its debts generally as they
become due; or
(viii) consent to an appointment of custodian or receiver or trustee of all
of its property, or the major part thereof.
(e) The occurrence of any material change in Grantor which Beneficiary
determines, in its commercially reasonable discretion, will have a material adverse effect
on the Loan, the Premises, the Collateral, the other security for the Loan, or Grantor's
ability to perform its obligations under the Note, or any Security Document.
(f) Should the lien of this Deed of Trust fail to be a second lien,junior only to
the Valley View Deed of Trust and the statutory liens granted to secure payment of any
real property taxes or other assessments made against the Mortgaged Property.
2.02 Remedies.
(a) Upon and during the continuance of any such Event of Default,
Beneficiary may declare the entire principal of the Note then outstanding (if not then due
and payable), and all accrued and unpaid interest thereon, all prepayment premium
payable thereunder and all other Indebtedness to be due and payable immediately, and
upon any such declaration the principal of the Note and said accrued and unpaid interest,
prepayment premium, if any, and other charges shall become and be immediately due and
payable, anything in the Note, any Security Document or in this Deed of Trust to the
contrary notwithstanding.
(b) Upon and during the continuance of any such Event of Default, or in the
event Beneficiary shall deem it reasonably necessary or proper to protect or conserve the
security of the Indebtedness, Beneficiary or Trustee personally, or by their agents or
attorneys, may enter into and upon all or any part of the Mortgaged Property, and each
and every part thereof, and may exclude Grantor, its agents and servants wholly
therefrom; and having and holding the same, may use, operate, manage and control the
Mortgaged Property and conduct the business thereof, either personally or by their
superintendents, managers, agents, servants, attorneys or receivers; and upon every such
entry, Beneficiary at the expense of Grantor, from time to time, either by purchase,
repairs or construction may maintain and restore the Mortgaged Property, may complete
the construction of the improvements and in the course of such completion may make
such changes in the contemplated improvements as it may deem reasonably necessary
and may insure the same; and likewise, from time to time, at the expense of Grantor,
Beneficiary may make all reasonably necessary or proper repairs, renewals and
replacements; and in every such case Beneficiary shall have the right to manage and
17
operate the Mortgaged Property and to carry on the business thereof and exercise all
rights and powers of Grantor with respect thereto either in the name of Grantor or
otherwise as it shall deem best; and Beneficiary shall be entitled to collect and receive all
earnings, revenues, rents, issues, profits and income of the Mortgaged Property and every
part thereof, all of which shall constitute property of Beneficiary; and after deducting the
reasonable expenses of conducting the business thereof and of all maintenance, repairs,
renewals, replacements, alterations, additions, betterments and improvements and
amounts necessary to pay for taxes, assessments, insurance and other charges upon the
Mortgaged Property or any part thereof, as well as just and reasonable compensation for
the services of Beneficiary and for all attorneys, counsel, agents, clerks, servants and
other employees by it properly engaged and employed, to the extent permitted by law,
Beneficiary shall apply the moneys arising as aforesaid, first, to the payment of the
interest and the principal of the Note, when and as the same shall become payable, and
second, to the payment of any other sums required to be paid by Grantor under the Note
and this Deed of Trust. If Grantor shall for any reason fail to surrender or deliver the
Mortgaged Property or any part thereof after such demand by Beneficiary, Beneficiary
may obtain a judgment or decree conferring upon Beneficiary the right to immediate
possession or requiring Grantor to deliver immediate possession of the Premises to
Beneficiary. In the event that all such interest, deposits and principal installments and
other sums due under any of the terms, covenants, conditions and agreements of this
Deed of Trust, shall have been paid and all Events of Default cured and satisfied, and as a
result thereof, Beneficiary surrenders possession of the Premises to Grantor, the same
right of taking possession shall exist if any subsequent Event of Default shall occur.
(c) Upon and after any such Event of Default, Beneficiary or Trustee (as
applicable), with or without entry, personally or by its agents or attorneys, insofar as
applicable, may:
(i) sell the Mortgaged Property hereinbefore described and any and every
part thereof, either in mass or in parcels, at public vendue to the highest bidder for
cash at the place customary for foreclosure sales in the county and state where the
Mortgaged Property is located, first giving notice of such sale (as prescribed by
statute) in a newspaper of common circulation published in said County, and
delivering a copy of said notice to Grantor and any person who has filed a request
for notice, by United States mail, postage prepaid, certified or registered, return
receipt requested, delivered to addressee only; and upon such sale, execute and
deliver a deed or deeds conveying all estate, right, title and interest, claim and
demand therein, and right of redemption thereof, at one or more sales as an entity
or in parcels;
(ii) institute proceedings for the complete or partial foreclosure of this
Deed of Trust; or
(iii) Beneficiary, upon application to a court of competent jurisdiction,
shall be entitled as a matter of strict right without regard to the sufficiency or
value of any security for the Indebtedness secured hereby or the solvency of any
parry bound for its payment, to the appointment of a receiver to take possession of
18
and to operate the Mortgaged Property and to collect and apply the income, rents,
issues, profits, and revenues thereof. The receiver shall have all of the rights and
powers permitted under the laws of the state within which the Mortgaged Property
is located. Grantor shall pay to Beneficiary upon demand all reasonable expenses,
including reasonable receiver's fees, attorneys' fees, costs, and agent's
compensation, incurred pursuant to the provisions of this paragraph, to the extent
permitted by law; and all such expenses shall be secured by this Deed of Trust;
and/or
(iv) take such steps to protect and enforce its rights whether by action, suit
or proceeding in equity or at law for the specific performance of any covenant,
condition or agreement in the Note or in this Deed of Trust, or in aid of the
execution of any power herein granted, or for any foreclosure hereunder, or for
the enforcement of any other appropriate legal or equitable remedy or otherwise
as Beneficiary shall elect.
(d) Trustee may adjourn from time to time any sale by it to be made under or
by virtue of this Deed of Trust by announcement at the time and place appointed for such
sale, or for such adjourned sale or sales; and except as otherwise provided by any
applicable provision of law, Trustee, without further notice or publication, may make
such sale at the time and place to which the same shall be so adjourned.
(e) Upon the completion of any sale or sales made by Trustee, under or by
virtue of this Section, Trustee, or an officer of any court empowered to do so, shall
execute and deliver to the accepted purchaser or purchasers a good and sufficient
instrument, or good and sufficient instruments, conveying, assigning and transferring all
estate, right, title and interest in and to the property and rights sold. Trustee is hereby
appointed the true and irrevocable lawful attorney of Grantor, in its name and stead, to
make all necessary conveyances, assignments, transfers and deliveries of the Premises
and rights so sold and for that purpose Trustee may execute all necessary instruments of
conveyance, assignment and transfer, and may substitute one or more persons with like
power, Grantor hereby ratifying and confirming all that its said attorney or such substitute
or substitutes shall lawfully do by virtue hereof. This power of attorney shall be deemed
to be a power coupled with an interest and not subject to revocation. Any such sale or
sales made under or by virtue of this Section whether made under the power of sale
herein granted or under or by virtue of judicial proceedings or of a judgment or decree of
foreclosure and sale, shall operate to divest all 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.
(f) In the event of any sale made under or by virtue of this Section, the entire
principal of, and interest on, the Note, if not previously due and payable, and all other
sums required to be paid by Grantor pursuant to this Deed of Trust, immediately
thereupon shall, anything in the Note, any Security Document or in this Deed of Trust to
the contrary notwithstanding, become due and payable.
19
(g) The purchase money proceeds or avails of any sale made under or by
virtue of this Section, together with any other sums which then may be held by Trustee
under the provisions of this Section or otherwise, shall be applied as follows:
First To the payment of the costs and expenses of such sale, including
reasonable compensation to Trustee and/or Beneficiary, their agents and
attorneys, title insurance premiums, and of any judicial proceedings
wherein the same may be made, and of all expenses, liabilities and
advances made or incurred by Beneficiary under this Deed of Trust,
together with interest at the Default Rate provided in the Note.
Second To the payment of any other sums required to be paid by Grantor pursuant
to any provisions of this Deed of Trust, or of the Note.
Third To the payment of the whole amount then due, owing or unpaid upon the
Note for principal and interest, with interest on the unpaid principal and
accrued interest at the rate(s) specified in the Note, from and after the
happening of any Event of Default described herein from the due date of
any such payment of principal until the same is paid.
Fourth To the payment of the surplus, if any, to whomsoever may be lawfully
entitled to receive the same.
(h) Upon any sale made under or by virtue of this Section, whether made
under the power of sale herein granted or under or by virtue of judicial proceedings or of
a judgment or decree of foreclosure and sale, Beneficiary may bid for and acquire the
Mortgaged Property or any part thereof and in lieu of paying cash therefor may make
settlement for the purchase price by crediting upon the Indebtedness of Grantor secured
by this Deed of Trust the net sales price after deducting therefrom the expenses of the
sale and the cost of the action and any other sums which Beneficiary is authorized to
deduct under this Deed of Trust. Beneficiary, upon so acquiring the Mortgaged Property,
or any part thereof, shall be entitled to hold, lease, rent, operate, manage and sell the
same in any manner provided by applicable laws.
(i) Beneficiary, at Beneficiary's option, is authorized to foreclose this Deed
of Trust subject to the rights of any tenants of the Premises, and the failure to make any
such tenants parties defendants to any such foreclosure proceeding and to foreclose their
rights will not be, nor be asserted by Grantor as a defense to any proceedings instituted
by Beneficiary to collect the sums secured hereby.
0) Trustee hereby lets the Mortgaged Property to Grantor until a sale is held
under the foregoing provisions therefor, or until a default or defaults in any of the terms,
covenants, and conditions of this Deed of Trust, the Note, or any of the Security
Documents upon the following terms and conditions, to-wit: Grantor and every and all
persons claiming or possessing the Mortgaged Property, or any part thereof, by, through,
or under Grantor shall pay rent therefor during said term at the rate of one cent per
month, payable monthly upon demand, and shall surrender immediate peaceable
20
possession of the Mortgaged Property (and any and every part thereof) sold under the
provisions of this Deed of Trust to the purchaser thereof under such sale, without notice
or demand therefor, and shall and will at once, without notice, surrender up possession of
the Mortgaged Property and every part thereof in the event Beneficiary shall take charge
and enter as hereinbefore provided.
Article Three
Miscellaneous Terms and Conditions
3.01 Leases. In the event Trustee shall institute judicial proceedings to foreclose the
lien hereof, and shall be appointed as a Beneficiary in possession of the Mortgaged Property,
Trustee or Beneficiary during such time as it shall be Beneficiary in possession of the Mortgaged
Property pursuant to an order or decree entered in such judicial proceedings, shall have, and
Grantor hereby gives and grants to Trustee and/or Beneficiary, the right, power and authority to
make and enter into leases of the Mortgaged Property or the portions thereof for such rents and
for such periods of occupancy and upon such conditions and provisions as such mortgagee in
possession may deem desirable, and Grantor expressly acknowledges and agrees that the term of
any such lease may extend beyond the date of any sale of the Mortgaged Property pursuant to a
decree rendered in such judicial proceedings; it being the intention of Grantor that while Trustee
or Beneficiary is a Mortgagee in possession of the Mortgaged Property pursuant to an order or
decree entered in such judicial proceedings, such Trustee or Beneficiary shall be deemed to be
and shall be the attorney-in-fact of Grantor for the purpose of making and entering into leases of
parts or portions of the Mortgaged Property for the rents and upon the terms, conditions and
provisions deemed desirable to Trustee or Beneficiary and with like effect as if such leases had
been made by Grantor as the owner in fee simple of the Premises free and clear of any conditions
or limitations established by this Deed of Trust. The power and authority hereby given and
granted by Grantor to Trustee or Beneficiary shall be deemed to be coupled with an interest and
shall not be revocable by Grantor.
3.02 Partial Release, Modification, Extension, Etc. Without affecting the liability of
any other person for the payment of any Indebtedness herein mentioned(including Grantor
should it convey said Mortgaged Property) and without affecting the priority of the lien hereof
upon any property not released, Beneficiary may, without notice, release any person so liable,
extend the maturity or modify the terms of any such obligation, or grant other indulgences,
release or reconvey or cause to be released or reconveyed at any time all or any part of the
Mortgaged Property described herein, take or release any other security or make compromises or
other arrangements with debtors. Beneficiary may also accept additional security, either
concurrently herewith or hereafter, and sell same or otherwise realize thereon before,
concurrently with, or after sale hereunder. Beneficiary may also accept additional security,
either concurrently herewith or hereafter, and sell same or otherwise realize thereon before,
concurrently with, or after sale hereunder.
3.03 Non-Waiver.
(a) By accepting payment of any sum secured hereby after its due date or
altered performance of any obligation secured hereby, Beneficiary shall not waive its
21
right against any person obligated directly or indirectly hereunder or with respect to any
Indebtedness hereby secured, either to require prompt payment when due of all other
sums so secured or to take remedy for failure to make such prompt payment or full
performance. No exercise of any right or remedy by Beneficiary hereunder shall
constitute a waiver of any other right or remedy herein contained or provided by law.
(b) No delay or omission of Beneficiary or Trustee in the exercise of any right,
power or remedy accruing hereunder or arising otherwise shall impair any such right,
power or remedy, or be construed to be a waiver of any default or acquiescence therein.
(c) Receipts of rents, awards, and any other monies or evidences thereof,
pursuant to the provisions of this Deed of Trust and any disposition of the same by
Beneficiary shall not constitute a waiver of the right of foreclosure by Beneficiary in the
Event of Default or failure of performance by Grantor of any covenant or agreement
contained herein or in the Note secured hereby.
3.04 Severability. If any term of this Deed of Trust or any Security Document, or the
application thereof to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Deed of Trust, or the application of such tern to persons or
circumstances other than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this Deed of Trust shall be valid and enforceable to the fullest extent
permitted by law.
3.05 Successors in Interest. This Deed of Trust applies to, inures to the benefit of, and
is binding not only on the parties hereto, but also on their successors and permitted assigns. The
term "Beneficiary" shall mean the holder(s) and owner(s), including pledgees, of the Note
secured hereby, whether or not named as Beneficiary herein.
3.06 Notices. Except as otherwise required by law, all notices to be given pursuant to
this Deed of Trust shall be sufficient if delivered personally, sent by national overnight delivery
service or mailed postage prepaid, certified or registered mail, return receipt requested, to the
addresses of the parties hereto provided below, or to such other address as a party may request in
writing. Any time period provided in the giving of any notice hereunder shall commence upon
the earlier of receipt or the date such notice is deposited in the mail or with an overnight courier.
22
Grantor: Argo Innovation Park Lot 6, L.L.C.
7611 State Line, Suite 301
Kansas City, Missouri 64114
Attn: Joseph C. Tutera, Manager
Beneficiary: Tutera Investments, L.L.C.
7611 State Line, Suite 301
Kansas City, Missouri 64114
Attn: Joseph C. Tutera, Manager
Trustee: Michael F. Flanagan, Esq.
Michael F. Flanagan, L.L.C.
7611 State Line, Suite 303
Kansas City, Missouri 64114
3.07 Integration; Modifications. This Deed of Trust, the Note, and the Security
Documents contain all of the agreements of Beneficiary and Grantor and supersede any and all
prior discussions and/or agreements relative thereto. This Deed of Trust may not be amended,
modified or changed nor shall any waiver of any provision hereof be effective, except only by an
instrument in writing and signed by the party against whom enforcement of any waiver,
amendment, change,modification or discharge is sought.
3.08 Governing Law. This Deed of Trust shall be construed according to and governed
by the laws of the State of Missouri.
3.9. Substitute Trustee. If Trustee shall die or become disqualified from acting in the
execution of this trust, or be absent from the country or shall fail or refuse to execute the same
when requested by Beneficiary to do so; or if, for any reason, Beneficiary shall prefer to appoint
a substitute Trustee to act instead of Trustee named herein, Beneficiary shall have full power to
appoint, by recorded, written instrument, or other manner as provided by applicable law, a
substitute Trustee, and, if necessary, several substitute Trustees in succession, who shall succeed
to all the estate, rights, powers and duties of the original Trustee named herein. Such
appointment is executed in its behalf by any officer of such corporation, such appointment shall
be conclusively presumed to be executed with authority and shall be valid and sufficient without
proof of any action by the board of directors or any superior officer of the corporation.
3.10. Business Loan. Grantor covenants and agrees that the Indebtedness secured by this
Deed of Trust, and the proceeds of such Indebtedness, are of business purposes only within the
meaning and scope of V.A.M.S. §§ 408.015 and 408.035.
3.11. Late Charge. The Note secured hereby requires the payment of a late charge in the
event any installment of principal and/or interest due thereunder and/or any escrow fund
payment for taxes or insurance due hereunder shall become overdue. Said late charges shall be
Indebtedness secured hereby.
3.12. Grantor Covenant. Grantor covenants and warrants that the Note, this Deed of
Trust, and other instruments securing the Note or relating to the loan evidenced by the Note are
23
valid, binding and enforceable in accordance with their terms, subject to insolvency laws and
principles of equity, and that the execution and delivery of said instruments and the performance
by Grantor of Grantor's obligations thereunder do not and will not contravene any law or
regulation, nor shall they violate or contravene the provisions of any real estate contract,
mortgage, deed of trust, joint venture or partnership agreement, banking agreement, credit
agreement nor any other agreement, nor any judgment, order or decree affecting Grantor or the
Premises or to which Grantor may be bound.
3.13. General Construction. Whenever used in this Deed of Trust and unless expressly
provided otherwise: (a) use of the singular includes the plural, and vice versa; (b) use of gender
includes all genders; (c) use of the term "include" is always without limitation; (d) use of the
words "should", "must", and "will" has the same legal effect as the use of the word "shall'; (e)
the term"days"means consecutive calendar days except that, if the expiration of any time period
measured in days occurs on a Saturday, Sunday, or Legal Holiday, such expiration automatically
will be extended to the next day that is not a Saturday, Sunday or Legal Holiday; (f) "person"
means any natural person or artificial entity having legal capacity; (g) the term "Deed of Trust"
includes any and all amendments, modifications, extensions, renewals, replacements,
substitutions and consolidations now or hereafter made, individually and collectively; (h) the
term "Security Documents" means written documents which secure the payment or other
performance of the obligations from time to time evidenced by the Note or this Deed of Trust;
and (i) "dollars" or "$" means the currency of the United States of America. All payments to
Beneficiary pursuant to any provision of this Deed of Trust must be made by legal tender of the
United States of America. For purposes of determining the accrual of interest pursuant to any
provision of this Deed of Trust, interest shall be based on a 365-day year, actual days elapsed.
Mortgagee, at any time by reasonable prior notice, may require that any payment will be deemed
"made", "paid" or "received" to or by Beneficiary only when reduced to immediately available
funds in such bank account as Beneficiary reasonably may designate for such purpose within the
United States of America or, if made by legal tender, on the next succeeding banking day
following receipt, unless sooner utilized by, or deposited to the credit of, Beneficiary. Part and
paragraph headings and subheadings are for indexing purposes only and are not to be used to
interpret, construe, apply or enforce the substantive provisions of this Deed of Trust.
3.14. Usury. No provision of the Note secured hereby or of this Deed of Trust, any
Security Document issued in conjunction herewith shall be deemed to require payment or permit
the collection of interest in excess of the maximum permitted by the applicable law. If any
excess of interest in such respect is provided in said Note, this Deed of Trust, or any Security
Documents, the provisions of this Section shall govern and no party obligated for the
Indebtedness secured hereby shall be obligated to pay the amount of such interest to the extent
that it is in excess of the amount permitted by law. If it is adjudicated that the fee or other charge
related to the Loan is interest, such fee or other charge so adjudicated to be interest shall be
considered as interest for the life of the Loan commencing from the date hereof and extending to
the due date of the Note secured hereby or any extension of such due date.
3.15. Regulation G. Grantor warrants that the proceeds of the Note secured hereby will
not be used for the purchase of registered equity securities within the purview of Regulation G
issued by the Board of Governors of the Federal Reserve System.
24
3.16. Waiver of Statutory and Other Rights. To the extent permitted by law, Grantor
shall not, and will not, apply for or avail itself of and hereby expressly waives for itself and its
successors and assigns, of any appraisement, valuation, stay, homestead exemption, extension or
exemption laws, any so-called "Moratorium Laws", all rights to redeem, periods of redemption
and equity of redemption now existing or hereafter enacted, and all other laws enacted in order to
prevent or hinder the enforcement or foreclosure of this Deed of Trust. Grantor, for itself and all
who may claim through or under it, expressly waives any and all right to have the property and
estates comprising the Mortgaged Property marshaled upon any foreclosure of the lien hereof
and agree that any court having jurisdiction to foreclose such lien may order the Mortgaged
Property sold as an entirety.
3.17. Expenses. Grantor shall, to the extent permitted by law, pay or reimburse
Beneficiary, upon demand therefor, for all reasonable attorneys' fees, costs and expenses
incurred by Beneficiary in any suit, action, legal proceeding or dispute of any kind in which
Beneficiary is made a party or appears as a party plaintiff or defendant, affecting the
Indebtedness, this Deed of Trust, or the interest created herein, or the Mortgaged Property,
including, without limitation, any foreclosure proceedings, any condemnation action involving
the Premises, any federal bankruptcy proceeding or state insolvency proceeding involving the
priorities or rights of creditors, any action to protect the security hereof, or any action or
proceeding commenced by governmental authority with respect to the storage, disposal or clean-
up of toxic or Hazardous Materials on the Premises; and such amounts paid by Beneficiary shall
be added to the Indebtedness secured by the lien of this Deed of Trust and shall bear interest
from and after the date paid, at the Default Rate in effect under the Note.
3.18. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
AND ACKNOWLEDGING THAT THE CONSEQUENCES OF SAID WAIVER ARE FULLY
UNDERSTOOD, GRANTOR HEREBY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY
JURY, THE RIGHT TO INTERPOSE ANY DEFENSE BASED UPON ANY STATUTE OF
LIMITATIONS, ANY CLAIM OF LACHES AND ANY SET-OFF OR COUNTERCLAIM OF
ANY NATURE OR DESCRIPTION IN ANY ACTION OR PROCEEDING INSTITUTED
AGAINST GRANTOR OR ANY OTHER PERSON LIABLE ON THE NOTE.
[Balance page intentionally left blank. Signature page follows]
25
IN WITNESS WHEREOF, the undersigned has caused this Future Advance Leasehold
Deed of Trust and Security Agreement to be executed and delivered as of the date first above
written.
GRANTOR:
ARGO INNOVATION PARK LOT 6, L.L.C.,
a Missouri limited liability company
By:
Joseph C. Tutera
Its: Manager
STATE OF MISSOURI )
ss.
COUNTY OF JACKSON )
On this _ day of 2014, to me personally known, appeared
Joseph C. Tutera who, being by me duly sworn did say that he is the Manager of Argo Innovation
Park Lot 6, L.L.C., a Missouri limited liability company, and that said instrument was signed and
delivered in behalf of said limited liability company by authority of its members, and said Joseph
C. Tutera acknowledged said instrument to be the free act and deed of said limited liability
company acting with full power and authority to so bind the limited liability company.
In Testimony Whereof, I have hereunto set my hand and affixed my official seal the day
and year first above written.
NOTARY PUBLIC
My Commission Expires:
[SEAL]
26
CONSENT OF CITY
City of Riverside, Missouri hereby acknowledges and consents to the execution and
delivery of this Future Advance Leasehold Deed of Trust and Security Agreement.
CITY:
CITY OF RIVERSIDE, /MIIISS_S_O�UR�I
1I f l By: V�K�
Honorable Kathleen L. Rose
4TTF,ST:, r
e
By,
,Rybin•Littrell, ity Clerk
ACKNOWLEDGMENT
STATE OF MISSOURI )
ss:
COUNTY OF PLATTE )
On this � day of Dci, 2014, before me, personally appeared the Honorable
Kathleen L. Rose to me personally known, who being by me duly sworn, did say that she is the
Mayor of the City of Riverside, Missouri, a fourth-class city duly organized and validly existing
under the laws of the State of Missouri, and that the foregoing instrument was signed for the
purposes therein contained on behalf of said City of Riverside, Missouri by authority of its Board
of Aldermen, and Mayor Rose acknowledged said instrument to be the free act and deed of said
City of Riverside, Missouri.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the
day and year last above written.
1109111 L.UTTHELL
Notary.Pablio-Netary Seal Notary Public
Stat of mt*w i.any County
co"W"Ion. 1,1.60631 �` L L' -N ze l I
My Commlli81e8 MIr 8,2015 11J
n Printed Name
My Commission Expires:
27
CONSENT OF VALLEY VIEW
Valley View State Bank hereby acknowledges and consents to the execution and delivery
of this Future Advance Leasehold Deed of Trust and Security Agreement.
VALLEY VIEW:
VALLEY VIEW STATE BANK,
a Kansas state banking corporation
By:
Leo D. Harris
Its: Senior Vice President
ACKNOWLEDGMENT
STATE OF )
) ss.
COUNTY OF )
On this day of 2014, before me, appeared Leo D. Harris, to me
personally known, who being duly sworn, did say that he is a Senior Vice President of Valley
View Stat Bank, a Kansas state banking corporation (the "Bank") and that the foregoing
instrument was signed for the purposes therein contained on behalf of the Bank and by authority
of the Bank; and he further acknowledged said instrument to be the free act and deed of the
Bank.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public
Printed Name
My Commission Expires:
28
CONSENT OF TRUSTEE
Security Bank of Kansas City, as trustee, hereby acknowledges and consents to the
execution and delivery of this Future Advance Leasehold Deed of Trust and Security Agreement.
TRUSTEE:
SECURITY BANK OF KANSAS CITY,
a Kansas banking corporation
By:
Its:
ACKNOWLEDGMENT
STATE OF )
) SS.
COUNTY OF )
On this day of 2014, before me, appeared
to me personally known, who being duly swom, did say that he/she is a
of Security Bank of Kansas City, a Kansas banking corporation, as trustee (the "Trustee") and
that the foregoing instrument was signed for the purposes therein contained on behalf of the
Trustee and by authority of the Trustee; and he/she further acknowledged said instrument to be
the free act and deed of the Trustee.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the
day and year last above written.
Notary Public
Printed Name
My Commission Expires:
29
CONSENT OF BONDHOLDER
Argo Innovation Park Lot 6, L.L.C., as the holder of the Bonds, hereby acknowledges and
consents to the execution and delivery of this Future Advance Leasehold Deed of Trust and
Security Agreement.
BONDHOLDER:
ARGO INNOVATION PARK LOT 6,L.L.C.,
a Missouri limited liability company
By:
Joseph C. Tutera
Its: Manager
ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
On this day of 2014, before me, appeared Joseph C. Tutera, to me
personally known, who being duly sworn, did say that he is the Manager of Argo Innovation
Park Lot 6, L.L.C., a Missouri limited liability company (the "Company") and that the foregoing
instrument was signed for the purposes therein contained on behalf of the Company and by
authority of the Company; and he further acknowledged said instrument to be the free act and
deed of the Company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public
Printed Name
My Commission Expires:
30
Exhibit "A"
Legal Description
Lot 6, ARGO INNOVATION PARK, a subdivision in Riverside, Platte County, Missouri,
according to the recorded Plat thereof.
Exhibit`B"
Security Documents
Borrower: Argo Innovation Park Lot 6,L.L.C.
Lender: Tutera Investments,L.L.C.
1. Promissory Note dated of even date executed and delivered by Borrower and
Lender.
2. Future Advance Leasehold Deed of Trust and Security Agreement executed and
delivered by Borrower to Lender.
EXHIBIT D
COLLATERAL ASSIGNMENT OF TENANT RIGHTS
6 WA 6138544.1
Title of Document: Collateral Assignment of Tenant Rights
Date of Document: 2014
Grantor(Assignor): Argo Innovation Park Lot 6, L.L.C.
7611 State Line Road, Suite 301
Kansas City, MO 64114
and
HIDGS Associates, LLC
c/o Block Real Estate Services
700 W. 47th Street, Suite 200
Kansas City, Missouri 64112
Grantee(Assignee): Valley View State Bank
7500 W. 95th Street
Overland Park, Kansas 66212
Legal Description: See Exhibit A attached hereto
Reference Instruments: Instrument No. 2014004766, Book 1227 at Page 804
Instrument No. 2014007974, Book 1231 at Page 3
This instrument was prepared by
and return a recorded copy to:
Dentons US LLP
4520 Main Street, Suite 1100
Kansas City, Missouri 64111
Attention: Kevin Bird,Esq.
1
COLLATERAL ASSIGNMENT OF TENANT RIGHTS
THIS COLLATERAL ASSIGNMENT OF TENANT RIGHTS (this"Agreement") is
made as of 2014, by and between ARGO INNOVATION PARK LOT 6, L.L.C,
a Missouri limited liability company, having an address at 7611 State Line Road, Suite 301,
Kansas City, Missouri 64114 ('Borrower"), and HIDGS ASSOCIATES, LLC, a Missouri
limited liability company, having an address at c/o Block Real Estate Services, 700 W. 47th
Street, Suite 200, Kansas City, Missouri 64112 ("HIDGS" and, individually and collectively
with Borrower, "Assignor"), as assignor, and VALLEY VIEW STATE BANK, a Kansas
banking corporation, having an address of 7500 W. 95th Street, Overland Park, KS 66212
(together with its successors and assigns,"Lender'), as assignee and secured party.
RECITALS:
A. Pursuant to that certain Construction Loan Agreement of even date herewith
between Borrower and Lender (as the same may be modified or amended, the "Loan
Agreement') Lender has agreed to make a loan to Borrower in the amount of$6,500,000.00 (the
"Loan") to finance the construction of certain Improvements by Borrower on the real property
described on Exhibit A attached hereto (the "Property").
B. The Loan is evidenced by that certain Amended and Restated Promissory Note
dated of even date herewith made by Borrower payable to the order of Lender in the principal
amount of$6,500,000.00 (as the same may be modified or amended, the"Note"), and is secured
by among other documents that certain Future Advance Deed of Trust and Security Agreement
dated as of May 1, 2014, recorded in the office of the Platte County, Missouri Recorder of Deeds
(the "Records Office") on May 9, 2014 as Instrument Number 2014004766, as amended by that
certain First Amendment to Future Advance Deed of Trust and Security Agreement dated July
11, 2014, recorded in the Records Office on July 23, 2014 as Instrument Number 2014007974,
as assigned to Lender by that certain Assignment of Future Advance Deed of Trust and Security
Agreement of even date herewith, and as further amended by that certain Second Amendment to
Future Advance Deed of Trust and Security Agreement of even date herewith (as amended and
assigned, and as may be further modified, amended or extended, the "Security Instrument'),
which encumbers the Property. The Note, Security Instrument, this Agreement, and all other
documents evidencing or securing the Loan, as hereinafter defined, are collectively referred to
herein as the "Loan Documents".
C. The City of Riverside, Missouri (the "City") has, with respect to the Property,
issued its $18,730,000.00 (Aggregate Maximum Principal Amount) City of Riverside Taxable
Industrial Revenue bonds (Argo Innovation Park Lot 6, L.L.C. Project) Series 2014 (the
'Bonds"), pursuant to a Trust Indenture dated as of June 1, 2014 (the "Indenture") between the
City and Security Bank of Kansas City (the 'Bond Trustee"), and is using the proceeds of the
Bonds, which are held by Borrower, for the purpose of(a) acquiring the Property, (b) leasing the
Property and improvements thereon to Assignor for the construction of an approximately
275,500 square foot industrial facility(the "Project') upon the Property, and (c)paying a portion
of the costs of issuing the Bonds.
2
D. In connection with the issuance of the Bonds,the City has leased the Property and
the Project to the Borrower pursuant to a Lease Agreement dated as of June 1, 2014 (the "Lease
Agreement") between the Borrower and the City, and the Borrower and the City have filed for
record a Memorandum of Lease Agreement dated June 1, 2014, which was recorded on June 5,
2014 as Instrument No. 2014005908 in the Records Office.
E. Pursuant to that certain Assignment and Assumption of Lease Agreement dated as
of August 14, 2014 (the "HIDGS Assignment"), Borrower has assigned to HIDGS, and HIDGS
has accepted such assignment and assumed, a ninety-nine percent (99.0%) tenant in common
interest in Borrower's right, title and interest as lessee under the Lease Agreement, and, as of the
date hereof, Borrower holds a one percent (1.01/6) tenant in common interests as lessee under the
Lease Agreement and HIDGS holds a ninety-nine percent (99.0%) tenant in common interest as
lessee under the Lease Agreement (all such lessee tenant in common interests are collectively
referred to herein as the "Tenancy Rights").
F. As a condition to Lender's agreement to enter into the Loan evidenced by the
Note, Lender has required that (i) Borrower and HIDGS assign to Lender all of the Tenancy
Rights in and under the Lease Agreement, including without limitation all rights of termination,
rights of first refusal, options to extend, options to purchase and other rights of Borrower and
HIDGS as lessee under the Lease Agreement, and (ii) Borrower and HIDGS agree to the
payment of any amounts due to the lessee under the Lease Agreement to Lender to be applied by
Lender towards payment of the obligations under the Loan Documents.
AGREEMENTS
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and in consideration of Lender's agreement to make the
Loan to Borrower, Lender and Borrower agree as follows.
1. Terms Defined. Capitalized terms used in this Agreement and not specifically
defined in this Agreement have the meaning provided in the Loan Documents.
2. Assignment of Lease Agreement. Borrower and HIDGS do hereby
unconditionally transfer, collaterally assign, set over to, pledge and grant a security interest in
any and all right, title and interest of Borrower and/or HIDGS in, to and under the Lease
Agreement to and for the benefit of Lender to secure Borrower's obligations under the Note and
the Loan Documents (the "Obligations"). This Assignment is absolute and effective
immediately. Notwithstanding the foregoing, until Borrower is in default (after expiration of
applicable notice and cure periods, if any) under the terns and conditions of the Note, this
Agreement or any of the other Loan Documents, Borrower and HIDGS are granted a license to
and may retain and enjoy all rights, title and privileges under the Lease Agreement, subject to the
provisions hereof.
3. Grant of Security Interest in Payments to Lessee. As security for the full and
timely payment of the Obligations hereunder and under the Note and the Loan Documents, and
for the full and timely performance of all covenants and obligations of Borrower under each of
the Loan Documents, Borrower and HIDGS hereby pledge, assign and grant Lender a security
3
interest in and to any and all amounts due and payable to either Borrower or HIDGS as lessee
under the Lease Agreement.
4. Representations and Warranties of Borrower. Borrower represents and
warrants to Lender that:
(a) Borrower has not executed any prior assignment of any of its rights
assigned hereby or granted a prior lien upon or security interest in the Tenancy Rights or
the Lease Agreement, and the Tenancy Rights and Lease Agreement are not subject to
any other lien, charge or encumbrance;
(b) The Lease Agreement has not been terminated, assigned, supplemented,
amended or modified and the Lease Agreement is in full force and effect and enforceable
in accordance with its terms;
(c) Borrower has full right, power and authority to execute this Agreement
and perform the covenants contained herein;
(d) There are no present defaults by any party to the Lease Agreement; and
(e) Borrower has not done anything that might prevent Lender from or limit
Lender in operating under any of the provisions hereof.
5. Representations and Warranties of HIDGS. HIDGS represents and wan-ants to
Lender that:
(a) HIDGS has not executed any prior assignment of any of its rights assigned
hereby or granted a prior lien upon or security interest in the Tenancy Rights or the Lease
Agreement, and to its knowledge the interest of HIDGS in the Tenancy Rights and Lease
Agreement are not subject to any other lien, charge or encumbrance;
(b) To the knowledge of HIDGS, the Lease Agreement has not been
terminated, assigned, supplemented,amended or modified;
(c) HIDGS has full right, power and authority to execute this Agreement and
perform the covenants contained herein;
(d) HIDGS has no knowledge of any default by any party to the Lease
Agreement; and
6. Covenants of Borrower. Until all of the Obligations are satisfied in full and this
Agreement has terminated in accordance with its terms, Borrower shall:
(a) comply with all the requirements, terms and conditions of the Lease
Agreement, and satisfy, perform and observe all its covenants and obligations under the
Lease Agreement;
4
(b) promptly deliver to Lender copies of all written notices, and promptly give
Lender written notice of any other notices received by it, with respect to the Lease
Agreement;
(c) at any time, and from time to time, upon the written request of Lender,
execute and deliver such further documents and do such further acts and things as Lender
may reasonably request to effect the purposes hereof and more perfectly assure and
protect Lender's interest in the Tenancy Rights and the Lease Agreement and to cause
payment of any amounts otherwise payable or distributable to Borrower or HIDGS under
the Lease Agreement(the "Lease Proceeds")to be made directly to Lender;
(d) not create, incur, or permit to exist any assignment,pledge,mortgage, lien,
charge, encumbrance or any security interest whatsoever in, on or with respect to the
Tenancy Rights or Lease Agreement,other than that created hereby;
(e) not permit any levy or attachment to be made against the Property or any
portion thereof,
(f) not permit any financing statement (except in favor of Lender as secured
party) to be on file with respect to any of the Tenancy Rights or Lease Agreement;
(g) not assign, sell, lease or otherwise dispose of any of the Tenancy Rights or
the Lease Agreement;
(h) not, except upon the prior written consent of Lender, enter into any
agreement modifying, amending or supplementing the Lease Agreement; and
(i) not settle or compromise any claim arising under the Lease Agreement or
with respect to any Lease Proceeds, without Lender's prior written consent.
7. Covenants of HIDGS. Until all of the Obligations are satisfied in full and this
Agreement has terminated in accordance with its terms,HIDGS shall:
(a) promptly deliver to Lender copies of all written notices, and promptly give
Lender written notice of any other notices received by it, with respect to the Lease
Agreement;
(b) at any time, and from time to time, upon the written request of Lender,
execute and deliver such further documents and do such further acts and things as Lender
may reasonably request to effect the purposes hereof and more perfectly assure and
protect Lender's interest in the Tenancy Rights and the Lease Agreement and to cause
Lease Proceeds payable or distributable to HIDGS under the Lease Agreement to be
made directly to Lender;
(c) not create, incur, or permit to exist any collateral assignment, pledge,
mortgage, lien, charge, encumbrance or any security interest whatsoever in, on or with
respect to the Tenancy Rights or Lease Agreement, other than that created hereby;
5
(d) not permit any levy or attachment to be made against the Property or any
portion thereof;
(e) not permit any financing statement (except in favor of Lender as secured
party) to be on file with respect to HIDGS's interest in any of the Tenancy Rights or
Lease Agreement;
(f) not assign, sell, lease or otherwise dispose of any of the Tenancy Rights or
the Lease Agreement without the prior written consent of Lender, not to be unreasonably
withheld, conditioned or delayed;
(g) not, except upon the prior written consent of Lender, not to be
unreasonably withheld, conditioned or delayed, enter into any agreement modifying,
amending or supplementing the Lease Agreement; and
(h) not settle or compromise any claim arising under the Lease Agreement or
with respect to any Lease Proceeds, without Lender's prior written consent, not to be
unreasonably withheld, conditioned or delayed.
8. Direct Payment of Lease Proceeds. Borrower and HIDGS hereby agree and
direct that all Lease Proceeds paid or distributed to or on account of Borrower or HIDGS after
the date of this Agreement shall be paid directly to Lender.
9. Lender Not Liable. Notwithstanding the assignment herein made, and
notwithstanding anything herein or in the Lease Agreement seemingly to the contrary:
(a) Borrower shall remain liable under the Lease Agreement to perform all of
Borrower's and HIDGS's obligations thereunder in accordance with and pursuant to the
terms and provisions thereof, and
(b) Lender shall have no duty, obligation or liability under the Lease
Agreement by reason of or arising out of this Agreement or the assignment herein made,
nor shall Lender be required or obligated in any manner to perform or fulfill any
obligations of Borrower or HIDGS under or pursuant to the Lease Agreement, it being
understood that this Agreement is executed as security for Loan and neither Lender nor
its successors or assigns shall be deemed to have assumed the Lease Agreement, or any
obligation, duty or liability of any of the parties thereunder.
10. Perfection of Security Interests. Borrower and HIDGS hereby authorize Lender
to file one or more financing statements describing the Tenancy Rights and the Lease
Agreement, and any amendments that do not add collateral, with or without the signature of, or
authentication by, Borrower or HIDGS.
11. Riehts of Secured Party. In addition to all rights and remedies given to Lender
by the terms of this Agreement, the Note or any of the other Loan Documents, Lender shall have
all the rights and remedies of a secured party under the Uniform Commercial Code, as in effect
on the date of this Agreement and as the same may be amended from time to time hereafter, of
the State of Missouri (the "Code").
6
12. Additional Agreements. To further induce Lender to make the Loan and enter
into this Agreement, each of Borrower and HIDGS represents and warrants to, and covenants
with Lender that:
(a) On the date of this Agreement, each of Borrower and HIDGS is a
"registered organization" as defined in the Code, namely, a limited liability company,
organized and existing under the laws of the State of Missouri; that Borrower's
organizational ID number issued by the State of Missouri is LC1392600, and HIDGS's
organizational ID number issued by the State of Missouri is LC001412090;
(b) At all times during the term of this Agreement, Borrower and HIDGS
shall each maintain its existence as a limited liability company, organized and existing
under the laws of the State of Missouri; and, without prior written consent of Lender, not
to be unreasonably withheld, conditioned or delayed, shall not, in one transaction or a
series of related transactions, merge into or consolidate with any other entity, or sell all or
substantially all of its assets,nor change the state of its organization;
(c) Neither Borrower nor HIDGS shall change its legal name without
providing Lender with 30 days' prior written notice;
(d) Borrower and HIDGS shall at all times during the term of this Agreement
keep and maintain its chief executive office at its address as set forth on the first page of
this Agreement, and at no other location without the prior written consent of Lender, not
to be unreasonably withheld, conditioned or delayed; and
(e) The current location of all negotiable documents, goods, instruments,
money, or tangible chattel paper included in the Tenancy Rights and Lease Agreement is
at the address of Borrower set forth on the first page of this Agreement.
13. Control. Borrower and HIDGS shall cooperate with Lender in enabling Lender
to obtain control as the concept of "control" is used in the Code with respect to any of the
Tenancy Rights, the Lease Agreement or Lease Proceeds, a security interest in which may be
perfected by control.
14. Indemnification. Borrower agrees to indemnify Lender against and hold it
harmless from any and all liability, loss or damage that it may or might incur under the Lease
Agreement or under or by reason of this Agreement and of and from any and all claims and
demands whatsoever which may be asserted against it by reason of any alleged obligation or
undertaking on its part to perform or discharge any of the terms of the Lease Agreement except
as may be due to Lender's willful or grossly negligent actions; should Lender incur any liability,
loss or damage under the Lease Agreement or under or by reason of this Agreement not due to
Lender's willful or grossly negligent actions, the amount thereof, including costs, expenses and
reasonable attorneys' fees, together with interest thereon at the Default Rate provided in the
Note, shall be secured hereby, and Borrower and Guarantors shall reimburse Lender therefor
immediately upon demand.
15. Further Assurances. Borrower and Guarantors (as defined in the Loan
Agreement) shall faithfully preserve and protect Lender's security interest in the Tenancy Rights,
7
the Lease Agreement and the Lease Proceeds from time to time owned by it and shall, at its own
cost and expense, cause said security interest to be perfected and continue perfected so long as
the Obligations or any portion thereof is outstanding and unpaid, and for such purpose Borrower
and HIDGS shall from time to time at the request of Lender file or record, or cause to be filed or
recorded, such instruments, documents and notices, including without limitation financing
statements and continuation statements, as Lender may reasonably deem necessary or advisable
from time to time in order to perfect and continue perfected said security interest. Borrower and
HIDGS shall do all such other acts and things and shall execute and/or authenticate and deliver
all such other notices and documents, including without limitation further security agreements,
pledges, assignments and notices, as Lender may reasonably deem necessary or advisable from
time to time in order to perfect and preserve the priority of such security interest as a first priority
security interest in the Tenancy Rights, the Lease Agreement and the Lease Proceeds,prior to the
rights of all other persons therein or thereto. Lender, its officers, authorized agents and
employees, are hereby irrevocably appointed attorneys in fact of Borrower and HIDGS, with full
power of substitution, to do all acts and things that Lender may deem necessary or advisable to
preserve, prefect and continue the perfection of Lender's security interest in the Tenancy Rights
and the Lease Agreement and the payment of the Lease Proceeds to Lender, such power is
irrevocable and coupled with an interest.
16. Remedies. Upon the occurrence of any default by Borrower or HIDGS in the
performance of any of its obligations under the Lease Agreement, this Agreement or any Event
of Default under the Loan Documents (collectively an "Event of Default") that is not cured
within any applicable time period that may be allowed by the Lease Agreement or Loan
Documents, as applicable, Lender shall be entitled to exercise all of the remedies with respect to
the Tenancy Rights, the Lease Agreement and the Lease Proceeds that are provided to it under
the Code, other applicable law, in equity or in this Agreement, and specifically, without
limitation of the foregoing, shall have rights:
(a) to disburse amounts as Lender shall consider necessary or appropriate to
perform any obligations under the Lease Agreement or to preserve any of Borrower's or
HIDGS's rights thereunder;
(c) comply with all obligations of Borrower and HIDGS under the Lease
Agreement as Lender may consider necessary or appropriate and generally do, execute
and perform any other act, matter or thing whatsoever that, in the reasonable opinion of
Lender, ought to be done, executed and performed in connection with the Lease
Agreement, as fully as Borrower and HIDGS could do in such situation;
(d) to notify the City, Bond Trustee or any other party from whom Lease
Proceeds may be due to make payment or otherwise render performance to or for the
benefit of the Lender;
(e) to enforce the obligations of the City and exercise the rights of Borrower
and HIDGS with respect to the obligations of the City to make payment or otherwise
render performance to Borrower and HIDGS under the Lease Agreement;
8
(f) in Lender's discretion, to sell Lender's interest in the Tenancy Rights, the
Lease Agreement and the Lease Proceeds or any part thereof at public or private sale
without notice or advertisement, except the Notice before Disposition required by Section
9-611 of the Code (to be given after the occurrence of the Event of Default but not less
than 10 days prior to any such public or private sale), provided sale must be to the same
entity that holds all other interest of Lender in the Property; and
(g) subject to compliance with Section 9-620 of the Code, to accept the Lease
Proceeds in full or partial satisfaction of the Loan, in Lender's sole discretion.
The proceeds of any sale of Lender's interest in the Tenancy Rights, the Lease Agreement and
the Lease Proceeds shall be applied as provided in Section 9-615 of the Code, including without
limitation, to the payment of reasonable attorney's fees and legal expenses, filing fees and related
expenses. The cash proceeds of collection or enforcement pursuant to Section 9-607 of the Code
shall be applied as provided in Section 9-608 of the Code, including without limitation, to the
payment of reasonable attorney's fees and legal expenses, filing fees and related expenses. No
delay on the part of Lender in the exercise of any right or remedy shall operate as a waiver
thereof, and no single or partial exercise by Lender of any right or remedy shall preclude other or
further exercise thereof or the exercise of any other right or remedy. The rights and remedies
exercised by Lender under this Agreement are in addition to any other rights and remedies
afforded Lender under the Loan Documents, and Lender shall be entitled to exercise such rights
as Lender in its sole discretion deems advisable. Anything to the contrary in this Agreement
notwithstanding, the Lender shall not take any action that will be in violation of the Lease
Agreement or any action that may cause a default under the Lease Agreement.
17. Assembly of Collateral. Upon the occurrence of any Event of Default, Borrower
and HIDGS shall promptly upon demand by Lender assemble all business records relating to the
Property and the Lease Agreement (the "Business Records") and make it available to Lender at
a place or places to be designated by Lender that shall be reasonably convenient to Borrower,
HIDGS and Lender. The right of Lender under this Section to have the Business Records
assembled and made available to it is of the essence of this Agreement and Lender may, at its
election, enforce such right by a bill in equity for injunctive relief or specific performance.
18. Riaht of Setoff If an Event of Default shall occur and the Note or any portion
thereof shall be due and payable, the holder of the Note shall have the right, in addition to all
other rights and remedies available to it, to set off against the unpaid balance of the Note (and
any other indebtedness then due from Borrower to such party) any debt owing to Borrower by
such holder, including without limitation any funds in any deposit account now or hereafter
maintained by Borrower with such holder.
19. Termination; Successors and Assigns. Upon payment and performance in full
of the Obligations, this Agreement shall terminate and be of no further force and effect and
Lender shall thereupon terminate its security interest in the Tenancy Rights, the Lease
Agreement and the Lease Proceeds. Until such time, however, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns.
9
20. Severability. If any provision of this Agreement shall for any reason be held
invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision
hereof, but this Agreement shall be construed as if such invalid or unenforceable provision had
never been contained herein.
21. Miscellaneous. No failure or delay on the part of Lender in exercising any right,
remedy, power or privilege hereunder shall operate as a waiver thereof or of any other right,
remedy, power or privilege of Lender; nor shall any single or partial exercise of any such right,
remedy, power or privilege preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights and remedies of Lender under this
Agreement are cumulative and not exclusive of any rights or remedies that it may otherwise
have.
22. Notices. Any notice or consent that may be given hereunder shall be given in
accordance with the provisions of the Security Instrument.
23. Choice of Law. This Agreement shall be a contract made under, governed by and
construed in accordance with, the internal laws (without giving effect to any conflict of laws
rules that might otherwise require reference to the laws of any other jurisdiction) of the State of
Missouri.
24. Consent to In Personam Jurisdiction. Borrower hereby agrees that, by
execution and delivery of this Agreement, Borrower has submitted itself to the jurisdiction of the
State of Missouri and its respective courts.
25. Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts shall together constitute
but one and the same Agreement. Receipt of an executed signature page to this Agreement by
facsimile or other electronic transmission shall constitute effective delivery thereof. Electronic
records of executed Loan Documents maintained by Lender shall be deemed to be originals
thereof.
26. Waiver of Trial by Jury. TO THE FULLEST EXTENT PERMITTED BY
LAW, AND AS SEPARATELY BARGAINED-FOR CONSIDERATION TO LENDER,
BORROWER AND HIDGS HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF
OR OTHERWISE RELATING TO ANY OF THE LOAN DOCUMENTS, THE
OBLIGATIONS, THE COLLATERAL, OR LENDER'S CONDUCT IN RESPECT OF ANY
OF THE FOREGOING. TO EFFECTUATE THE FOREGOING, LENDER IS HEREBY
GRANTED AN IRREVOCABLE POWER OF ATTORNEY TO FILE, AS ATTORNEY-IN-
FACT FOR BORROWER AND HIDGS, A COPY OF THIS AGREEMENT IN ANY COURT,
AND THE COPY OF THIS AGREEMENT SO FILED SHALL CONCLUSIVELY BE
DEEMED TO CONSTITUTE BORROWER'S AND HIDGS'S WAIVER OF TRIAL BY JURY
IN ANY PROCEEDING ARISING OUT OF OR OTHERWISE RELATING TO ANY OF THE
LOAN DOCUMENTS, THE OBLIGATIONS, THE COLLATERAL OR LENDER'S
CONDUCT IN RESPECT OF ANY OF THE FOREGOING.
10
27. Non-Recourse. All rights, claims and remedies of Lender against HIDGS are
without recourse and Lender agrees to look solely to the interest of HIDGS in the Lease
Agreement and Tenancy Rights for any recovery against HIDGS hereunder or with respect to
this Agreement and Lender waives any other claims or rights against HIDGS, its members,
manager, officers, directors and trustees.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, the parties hereto, each hereunto duly authorized, have
caused this Collateral Assignment of Tenant Rights to be executed as of the day and year first
above written.
Borrower:
ARGO INNOVATION PARK LOT 6,L.L.C,
a Missouri limited liability company
By:
Name: Joseph C. Tutera
Title: Manager
STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
On this day of 2014, before me personally appeared Joseph C. Tutera,
the Manager of Argo Innovation Park Lot 6, L.L.C., a Missouri limited liability company, and
acknowledged to me that he executed the same in his authorized capacity for and on behalf of
said limited liability company.
Given under my hand and official seal on 2014.
[SEAL]
Notary Public
Name:
My Commission Expires:
[Signatures Continue on Following Page]
12
HIDGS•
HIDGS ASSOCIATES, LLC,
a Missouri limited liability company
By: BK Properties, LLC,
a Missouri limited liability company
Its: Manager
By:
Kenneth G. Block, Trustee of the Kenneth G. Block
Trust dated January 11, 1991, as amended
STATE OF ) ss.
COUNTY OF
On this day before me appeared Kenneth G. Block, to me personally known, who, being by me
duly sworn did say that he is the Trustee of the Kenneth G. Block Trust dated January 11, 1991,
as amended, the Manager of BK Properties, LLC, the Manager of HIDGS Associates, LLC and
that said instrument was signed on behalf of said limited liability company by lawful and proper
authority, and said person acknowledged said instrument to be the free act and deed of said
limited liability company.
Given under my hand and official seal on 12014.
[SEAL]
Notary Public
Name:
My Commission Expires:
[Signatures Continue on Following Page]
13
Lender:
VALLEY VIEW STATE BANK
By:
Name:
Title:
STATE OF )
ss.
COUNTY OF )
On this day before me appeared to me personally known, who, being
by me duly sworn did say that he is the of Valley View State Bank, a
Kansas banking corporation, and that said instrument was signed on behalf of said Kansas
banking corporation by lawful and proper authority, and said person acknowledged said
instrument to be the free act and deed of said Kansas banking corporation.
Given under my hand and official seal on 2014.
[SEAL]
Notary Public
Name:
My Commission Expires:
14
CONSENT OF CITY
The City of Riverside, Missouri hereby acknowledges and consents to the execution and
delivery of the foregoing Collateral Assignment of Tenant Rights and agrees that, upon the
exercise of Lender's rights and remedies thereunder, the City shall recognize Lender (or its
assignee) as the Tenant under the Lease Agreement. The City hereby represents, warrants and
confirms to Lender that to the City's actual knowledge without inquiry or investigation, (i) except
for the HIDGS Assignment, the Lease Agreement has not been terminated, assigned,
supplemented, amended or modified and the Lease Agreement is in full force and effect and
enforceable in accordance with its terms; and (ii)there are no present defaults by any party to the
Lease Agreement. Capitalized terms used in this Consent and not specifically defined herein
have the meaning provided in the foregoing Collateral Assignment of Tenant Rights.
CITY OF RIVERSIDE,MISSOURI
1 t
• Honorable Kathleen L. Rose, Mayor
: (Setd) Title: Mayor
r 4 TEST:
� 1 a
1
Name � 1
Title: C ry'C)6&
STATE OF MISSOURI )
) ss.
COUNTY OF• Gjfe )
On this day before me appeared Kathleen L. Rose, to me personally known, who, being
by me duly sworn did say that she is the Mayor of the City of Riverside, Missouri, a political
subdivision and body corporate organized and existing under the laws of the State of Missouri,
and that the foregoing instrument was signed for the purposes therein contained on behalf of said
City of Riverside, Missouri by authority of its Board of Aldermen, and Mayor Rose
acknowledged said instrument to be the free act and deed of said City of Riverside, Missouri.
Given under my hand and official seal on CZ . 2014.
Ro81N L.i1TTRELL —
[SE ] Notary Public-Notary Soal
State of Missouri,Cloy CQAAV �G�
Commission at 11"MI
My Commission Expires Mir 8,2015. Notary Public
Wi
Name:
My Commission Expires:
15
CONSENT OF BOND TRUSTEE
Security Bank of Kansas City, as Bond Trustee, hereby acknowledges and consents to the
execution and delivery of the foregoing Collateral Assignment of Tenant Rights and agrees that,
upon the exercise of Lender's rights and remedies thereunder, the Bond Trustee shall recognize
Lender(or its assignee) as the Tenant under the Lease Agreement. Capitalized terms used in this
Consent and not specifically defined herein have the meaning provided in the foregoing
Collateral Assignment of Tenant Rights.
SECURITY BANK OF KANSAS CITY
By:
Name:
Title:
STATE OF MISSOURI )
ss.
COUNTY OF )
On this day before me appeared to me personally known, who, being
by me duly swom did say that he is the of Security Bank of Kansas
City, a Kansas banking corporation, as trustee (the "Trustee") and that said instrument was
signed on behalf of said Trustee and by authority of the Trustee, and said person acknowledged
said instrument to be the free act and deed of the Trustee.
Given under my hand and official seal on 2014.
[SEAL]
Notary Public
Name:
My Commission Expires:
16
CONSENT OF BONDHOLDER
Argo Innovation Park Lot 6, L.L.C., as holder of the Bonds, hereby acknowledges and
consents to the execution and delivery of the foregoing Collateral Assignment of Tenant Rights
and agrees that, upon the exercise of Lender's rights and remedies thereunder, the Bond Trustee
shall recognize Lender (or its assignee) as the Tenant under the Lease Agreement. Capitalized
terms used in this Consent and not specifically defined herein have the meaning provided in the
foregoing Collateral Assignment of Tenant Rights.
ARGO INNOVATION PARK LOT 6,L.L.C.,
a Missouri limited liability company
By:
Joseph C. Tutera
Title: Manager
STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
On this day of 2014, before me personally appeared Joseph C. Tutera,
the Manager of Tutera Investments, L.L.C., a Missouri limited liability company, and
acknowledged to me that he executed the same in his authorized capacity for and on behalf of
said limited liability company.
Given under my hand and official seal on 12014.
[SEAL]
Notary Public
Name:
My Commission Expires:
17
EXHIBIT A
LEGAL DESCRIPTION
18
ARGO INNOVATION PARK LOT 6, L.L.C.
7611 STATE LINE ROAD, SUITE 301
KANSAS CITY, MISSOURI 64114
(816) 444-0900
EXECUTIVE SUMMARY
September 19, 2014
HIDGS TRANSACTION
Argo Innovation Park Lot 6, L.L.C. ("Argo") and Martinrea Riverside LLC("Martinrea")
are parties to that certain Lease Agreement dated as of May 1, 2014 (the "Martinrea Lease"), as
well as that certain Work Letter Agreement, as amended from time to time (collectively, the
"Work Letter Agreement"). Argo is constructing an approximately 275,560 square foot building
upon the real estate leased by Landlord from the City of Riverside, Missouri (the "City") in
accordance with the Chapter 100 Bonds.
Argo previously informed the City of Argo's intention to sell the Premises to HIDGS
Associates, LLC ("HIDGS") (an entity owned and controlled by Kenneth G. Block) through a
two (2)part sale which will take place as follows:
(a) The sale of a ninety-nine percent (99%) tenant in common interest to HIDGS in
accordance with the Assignment and Assumption of Lease Agreement (City of Riverside
Lease) that Argo, HIDGS, the City and Security Bank (as Bond Trustee) previously
executed and which is being held in escrow by the title company pending closing, which
is anticipated to close in the near future; and
(b) The sale of the remaining one percent (1%) tenant in common interest to HIDGS
which will close once Martinrea has taken possession of the premises under the Martinrea
Lease.
Argo is not assigning any of Argo's interest in the Martinrea Lease, Work Letter
Agreement or Crossland Construction Company, Inc. contract to HIDGS in connection with
Argo's sale of a ninety-nine percent (99%) tenant in common interest to HIDGS. Rather, the
Martinrea Lease, Work Letter Agreement and Crossland Construction Company, Inc. contract
will not be assigned by Argo to HIDGS until Argo closes on the sale of its remaining one percent
(1%)tenant in common interest to HIDGS, which is not set to occur until sometime after Tenant
has accepted and taken possession of the Premises and the Chapter 100 bonds have been retired.
Argo will remain actively involved in overseeing the construction of the building by
Crossland Construction Company, Inc. until the building has been completed in accordance with
the Martinrea Lease and Work Letter Agreement, and Martinrea has accepted and taken
possession of the Premises.
September 19, 2014
Page 2
VALLEY VIEW STATE BANK LOAN
The acquisition of the real property and the initial costs to construct the Project were
financed with the proceeds of a loan in the amount of up to $3,500,000 which Tutera
Investments, L.L.C. ("Tutera") made to Argo pursuant to a promissory note dated May 1, 2014
(the "Tutera Note"), the repayment of which is secured by a Deed of Trust dated as of May 1,
2014 (the "Tutera Deed of Trust") which was recorded on May 9, 2014 as Instrument No.
2014004766 in Book 1227 at Page 804 in the Office of the Recorder of Deeds for Platte County,
Missouri.
Following the acquisition of the real property, the City issued its $18,730,000 (Aggregate
Maximum Principal Amount) City of Riverside Taxable Industrial Revenue Bonds (Argo
Innovation Park Lot 6, L.L.C. Project) Series 2014 (the "Chapter 100 Bonds"), pursuant to a
Trust Indenture dated as of June 1, 2014 (the "Indenture") between the City and Security Bank of
Kansas City, a Kansas banking corporation, as trustee (the "Trustee"). In conjunction with the
issuance of the Chapter 100 Bonds, Argo transferred fee title to the real property to the City, who
in turn leased the real property and improvement back to Argo pursuant to that certain Lease
Agreement dated as of June 1, 2014 between Argo and the City.
Following the issuance of the Chapter 100 Bonds, Tutera agreed to increase the amount
of the Tutera Loan from $3,500,000 to $16,050,000 to provide Argo with the funds needed to
complete the construction of the project. The Tutera Deed of Trust was amended to increase the
amount to $16,050,000, which amendment was approved by the City and Trustee and thereafter
recorded.
Recently Argo has secured a commitment from Valley View State Bank to provided Argo
with a loan in the amount of$6,500,000 to finance the costs to complete the project. Under the
terms of the Valley View loan, Tutera must loan Argo the first $12,000,000 in proceeds required
to purchase the real property and construct the project, at which time Valley View will loan up
the next $6,500,000 to complete the project. It is anticipated that $18,500,000 should be more
than sufficient to complete the project.
However, because title to the real property is held by the City under the Chapter 100 bond
structure, Valley View requested that Tutera sell and transfer the $16,500,000 loan, including the
previously recorded Tutera Deed of Trust, to Valley View, who would then amend the terms of
that loan to reflect the terms of the Valley View loan, including amendment the $16,500,000
Deed of Trust to reduce it to $6,500,000. This request was made by Valley View as it preferred
to not take a Leasehold Deed of Trust from Argo to secure its $6,500,000 loan (which is all that
Argo could currently grant).
In conjunction with the sale and modification of the Tutera. Loan by Valley View, Tutera
has agreed to loan Argo the sum of$12,000,000 to fulfill the requirements under the Valley View
Loan. The new Tutera loan will be secured by a Leasehold Deed of Trust which will be junior
and subordinate to the Valley View Deed of Trust that pre-dates the Chapter 100 Bonds and was
granted against fee title to the property. It is anticipated that the closing of the Valley View loan
and new Tutera loan will occur next week. Both of these loans will be repaid in full and the
deeds of trust released upon the sale of the remaining one percent (1%) tenant in common
interest by Argo to HIDGS as described above.