Poca, WV
Xxxxxx County
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A CREDIT LINE DEED OF TRUST, SECURITY AGREEMENT AND
ASSIGNMENT OF LEASES AND RENTS
From
RITE AID OF WEST VIRGINIA, INC.
TO
XXXX X. XXXXXXX
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx (Xxxxxxxx Xxxxxx)
Xxxx Xxxxxxxx
an individual
as Trustee
for the benefit of
CITICORP USA, INC.,
as SENIOR COLLATERAL AGENT FOR
THE BENEFIT OF THE SENIOR SECURED PARTIES
as BENEFICIARY
Dated: June 27, 2001
Premises: West Virginia Distribution Xxxxxx
Xxxx Xxxxxx Xxxxxxxxxx Xxxx
Xxxx, XX 00000.
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TABLE OF CONTENTS
Page
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ARTICLE I
Representations, Warranties and Covenants
of Grantor
SECTION 1.01. Title ................................................... 9
SECTION 1.02. Senior Credit Agreement; Senior
Subsidiary Guarantee Agreement;
Certain Amounts....................................... 10
SECTION 1.03. Payment of Taxes, Liens and
Charges .............................................. 11
SECTION 1.04. Payment of Closing Costs ................................ 12
SECTION 1.05. Plans; Alterations and Waste;
Repairs .............................................. 13
SECTION 1.06. Insurance ............................................... 13
SECTION 1.07. Casualty; Condemnation/Eminent
Domain ............................................... 13
SECTION 1.08. Assignment of Leases and Rents .......................... 14
SECTION 1.09. Restrictions on Transfers and
Encumbrances ......................................... 15
SECTION 1.10. Security Agreement ...................................... 15
SECTION 1.11. Filing and Recording .................................... 16
SECTION 1.12. Further Assurances ...................................... 16
SECTION 1.13. Additions to Trust Property ............................. 17
SECTION 1.14. No Claims Against Trustee or
Beneficiary .......................................... 17
SECTION 1.15. Fixture Filing .......................................... 18
SECTION 1.16. Notice Regarding Special Flood
Hazards .............................................. 18
ARTICLE II
Defaults and Remedies
SECTION 2.01. Events of Default ....................................... 18
SECTION 2.02. Demand for Payment ...................................... 18
SECTION 2.03. Rights To Take Possession, Operate and
Apply Revenues ....................................... 19
SECTION 2.04. Right To Cure Grantor's Failure to
Perform .............................................. 20
SECTION 2.05. Right to a Receiver ..................................... 20
SECTION 2.06. Foreclosure and Sale .................................... 21
SECTION 2.07. Other Remedies .......................................... 22
SECTION 2.08. Application of Sale Proceeds and
Rents ................................................ 22
SECTION 2.09. Grantor as Tenant Holding Over .......................... 23
SECTION 2.10. Waiver of Appraisement, Valuation, Stay,
Extension and Redemption Laws ........................ 23
SECTION 2.11. Discontinuance of Proceedings ........................... 24
SECTION 2.12. Suits To Protect the Trust
Property ............................................. 24
SECTION 2.13. Filing Proofs of Claim .................................. 24
SECTION 2.14. Possession by Trustee or Beneficiary .................... 25
SECTION 2.15. Waiver .................................................. 25
SECTION 2.16. Remedies Cumulative ..................................... 26
ARTICLE III
Miscellaneous
SECTION 3.01. Partial Invalidity ...................................... 26
SECTION 3.02. Notices ................................................. 26
SECTION 3.03. Successors and Assigns .................................. 26
SECTION 3.04. Satisfaction and Cancelation. ........................... 26
SECTION 3.05. Definitions ............................................. 27
SECTION 3.06. Multisite Real Estate Transaction ....................... 28
ARTICLE IV
Particular Provisions
SECTION 4.01. Applicable Law; Certain Particular
Provisions ........................................... 29
SECTION 4.02. Trustee's Powers and Liabilities ........................ 29
Exhibit A Description of Land
Exhibit B Premises Located in a Special Flood Hazard
Area
Appendix A Local Law Provisions
Appendix B Definitions Annex
THIS CREDIT LINE DEED OF TRUST, SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS dated as of June 27, 2001
(this "Deed of Trust"), by RITE AID OF WEST VIRGINIA, INC., a
West Virginia corporation, having an office at 00 Xxxxxx Xxxx,
Xxxx Xxxx, Xxxxxxxxxxxx 00000 (the "Grantor"), to XXXX X.
XXXXXXX, having an office at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx, as trustee ("Trustee") for the
benefit of CITICORP USA, INC., a Delaware corporation, having
an office at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (the
"Beneficiary") as Senior Collateral Agent for the benefit of
the Senior Secured Parties;
W I T N E S S E T H T H A T:
Capitalized terms used but not defined in this Deed of Trust have the
meanings given to them in the Definitions Annex annexed hereto as Appendix B.
Reference is made to the Senior Credit Agreement dated as of even date
herewith (as amended, replaced or refinanced from time to time, the "Senior
Credit Agreement"), among Rite Aid Corporation, a Delaware corporation (the
"Borrower"), the banks from time to time party thereto, Citicorp USA, Inc., as
Senior Administrative Agent and Senior Collateral Agent and The Chase Manhattan
Bank, Credit Suisse First Boston and Fleet Retail Finance, Inc. as Syndication
Agents.
Pursuant to the terms of, and subject to the conditions specified in,
the Senior Credit Agreement, (i) the Senior Banks have agreed to make certain
term and revolving loans to the Borrower, (ii) one or more Senior Banks (the
"Swingline Banks") have agreed to make swingline loans to the Borrower on an
uncommitted basis (the "Swingline Loans" - together with the loans referenced
in clause (i), above, the "Senior Loans") and (iii) one or more Senior Banks
(the "Issuing Banks") have agreed to issue letters of credit (the "Letters of
Credit") for the account of the Borrower.
Grantor is a wholly owned subsidiary of the Borrower and will derive
substantial benefit from the making of the Senior Loans by the Senior Banks and
the issuance of the Letters of Credit by the Issuing Banks. In order to induce
the Senior Banks to make the Senior Loans and the Issuing Banks to issue Letters
of Credit, the Grantor has agreed to guarantee, the due and punctual payment of
the Senior Bank Obligations and the 10.5% Note Obligations (together, the
"Senior
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Obligations") pursuant to the terms of the senior subsidiary guarantee agreement
dated as of even date herewith (the "Senior Subsidiary Guarantee Agreement")
made by Grantor and certain other Subsidiaries of Borrower (each, a "Subsidiary
Guarantor") in favor of Beneficiary in its capacity as Senior Collateral Agent
for the benefit of the Senior Bank Parties and the 10.5% Note Parties (together,
the "Senior Secured Parties").
The sum of the principal amount of the Senior Loans and the Letters of
Credit from time to time outstanding and secured hereby shall not exceed
$1,900,000,000.
The obligations of the Senior Banks to make Senior Loans and of the
Issuing Banks to issue Letters of Credit are conditioned upon, among other
things, the execution and delivery by the Grantor of this Deed of Trust in the
form hereof to secure the guarantee of the Senior Obligations contained in the
Senior Subsidiary Guarantee Agreement.
Pursuant to the requirements of the Senior Credit Agreement and the
Senior Subsidiary Guarantee Agreement, the Grantor therefore grants this Deed of
Trust to create a lien on and a security interest in the Trust Property (as
defined herein) to secure the payment and performance of the Senior Obligations.
The Senior Credit Agreement also requires the granting by other Subsidiary
Guarantors of mortgages, deeds of trust and deeds to secure debt (the "Other
Mortgages") that create liens on and security interests in certain parcels of
real property and related fixtures (each, a "Trust Property") other than the
Trust Property to secure the payment and performance of the Senior Obligations.
Granting Clauses
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and in order to
secure the due and punctual payment and performance of the Senior Obligations
for the benefit of the Senior Secured Parties, Grantor hereby grants, conveys,
mortgages, assigns and pledges to the TRUSTEE, IN TRUST FOREVER, with power of
sale, for the benefit of the Beneficiary and its successors, a security interest
in, all the following described property (the "Trust Property") whether now
owned or held or hereafter acquired:
(1) the land more particularly described on Exhibit A hereto
(the "Land"), together with all rights appurtenant thereto which may,
by their terms or as a matter of law, be conveyed or assigned along
with the
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Land, including the easements over certain other adjoining land granted
by any easement agreements, covenant or restrictive agreements and all
air rights, mineral rights, water rights, oil and gas rights and
development rights, if any, relating thereto, and also together with
all of the other easements, rights, privileges, interests,
hereditaments and appurtenances thereunto belonging or in any way
appertaining and all of the estate, right, title, interest, claim or
demand whatsoever of Grantor therein and in the streets and ways
adjacent thereto, either in law or in equity, in possession or
expectancy, now or hereafter acquired (the "Premises");
(2) all buildings, improvements, structures, paving, parking
areas, walkways and landscaping now or hereafter erected or located
upon the Land, and all fixtures of every kind and type affixed to the
Premises or attached to or forming part of any structures, buildings or
improvements and replacements thereof now or hereafter erected or
located upon the Land (the "Improvements");
(3) all apparatus, appliances, building materials, equipment,
fittings, machinery and other articles of tangible personal property of
every kind and nature, and replacements thereof, owned by Grantor and
now or at any time hereafter affixed to the Improvements or the
Premises, including all pumps, tanks, machinery, apparatus equipment,
lifts (including fire sprinklers and alarm systems, fire prevention or
control systems, cleaning rigs, air conditioning, heating, boilers,
refrigerating, electronic monitoring, water, loading, unloading,
lighting, power, sanitation, waste removal, communications, partitions,
lighting fixtures, freezers, refrigerators, walk-in coolers, signs
(indoor and outdoor), and all other items of tangible personal property
of any kind affixed to the Improvements or the Premises, it being
understood that the enumeration of any specific articles of property
shall in no way result in or be held to exclude any items of property
not specifically mentioned (the property referred to in this
subparagraph (3), the "Fixtures");
(4) all general intangibles owned by Grantor and relating to
design, development, operation, management and use of the Premises or
the Improvements, all certificates of occupancy, zoning variances,
building, use or other permits, approvals, authorizations and consents
obtained from and all materials prepared for filing or filed with any
governmental agency in
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connection with the development, use, operation or management of the
Premises and Improvements, all construction, service, engineering,
consulting, leasing, architectural and other similar contracts
concerning the design, construction, management, operation, occupancy
and/or use of the Premises and Improvements, all architectural
drawings, plans, specifications, soil tests, feasibility studies,
appraisals, environmental studies, engineering reports and similar
materials relating to any portion of or all of the Premises and
Improvements, and all payment and performance bonds or warranties or
guarantees relating to the Premises or the Improvements, all to the
extent assignable (the "Permits, Plans and Warranties");
(5) all now or hereafter existing leases or licenses (under
which Grantor is landlord or licensor) and subleases (under which
Grantor is sublandlord), concession, management, mineral or other
agreements of a similar kind that permit the use or occupancy of the
Premises or the Improvements for any purpose in return for any payment,
or the extraction or taking of any gas, oil, water or other minerals
from the Premises in return for payment of any fee, rent or royalty
(collectively, "Leases"), and all agreements or contracts for the sale
or other disposition of all or any part of the Premises or the
Improvements, now or hereafter entered into by Grantor, together with
all charges, fees, income, issues, profits, receipts, rents, revenues
or royalties payable thereunder ("Rents");
(6) all real estate tax refunds and all proceeds of the
conversion, voluntary or involuntary, of any of the Trust Property into
cash or liquidated claims ("Proceeds"), including Proceeds of insurance
maintained by the Grantor and condemnation awards, any awards that may
become due by reason of the taking by eminent domain or any transfer in
lieu thereof of the whole or any part of the Premises or Improvements
or any rights appurtenant thereto, and any awards for change of grade
of streets, together with any and all moneys now or hereafter on
deposit for the payment of real estate taxes, assessments or common
area charges levied against the Trust Property, unearned premiums on
policies of fire and other insurance maintained by the Grantor covering
any interest in the Trust Property or required by the Senior Credit
Agreement; and
(7) all extensions, improvements, betterments, renewals,
substitutes and replacements of and all
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additions and appurtenances to, the Land, the Premises, the
Improvements, the Fixtures, the Permits, Plans and Warranties and the
Leases, hereinafter acquired by or released to the Grantor or
constructed, assembled or placed by the Grantor on the Land, the
Premises or the Improvements, and all conversions of the security
constituted thereby, immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case may be,
and in each such case, without any further mortgage, deed of trust,
conveyance, assignment or other act by the Grantor, all of which shall
become subject to the lien of this Deed of Trust as fully and
completely, and with the same effect, as though now owned by the
Grantor and specifically described herein.
TO HAVE AND TO HOLD the Trust Property unto the Trustee, its successors
and assigns, for the ratable benefit of the Senior Secured Parties, forever,
subject only to the Permitted Encumbrances (as hereinafter defined) and to
satisfaction and cancelation as provided in Section 3.04, IN TRUST
NEVERTHELESS, upon the terms and trust herein set forth for the benefit and
security of the Beneficiary.
ARTICLE I
Representations, Warranties and Covenants of Grantor
Grantor agrees, covenants, represents and/or warrants as follows:
SECTION 1.01. Title. (a) Grantor has good and marketable title to:
(i) an indefeasible fee estate in the Land and Improvements; and
(ii) all of the Fixtures;
subject only to (A) liens, pledges, charges and other encumbrances which are
identified in Section 4.15(a) of the Senior Credit Agreement and (B) minor
defects in title that do not interfere with the ability of Grantor or any other
subsidiary of the Borrower to conduct its business as presently conducted or to
utilize the Trust Property for its intended purpose (collectively, the
"Permitted Encumbrances")
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(b) There are no Leases affecting the Land or the Improvements except
as disclosed in the Senior Credit Agreement.
(c) Grantor is not obligated under, and the Trust Property is not bound
by or subject to, any right, of first refusal, option or other contractual right
to sell, assign or otherwise dispose of any Trust Property or any interest
therein.
(d) The granting of this Deed of Trust is within Grantor's corporate
powers and has been duly authorized by all necessary corporate, and, if
required, stockholder action. This Deed of Trust has been duly executed and
delivered by Grantor and constitutes a legal, valid and binding obligation of
Grantor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(e) This Deed of Trust, when duly recorded in the appropriate public
records and when financing statements are duly filed in the appropriate public
records, will create a valid, perfected and enforceable first-priority lien upon
and security interest in all the Trust Property subject only to Permitted
Encumbrances. As of the date hereof, there are no defenses or offsets to this
Deed of Trust that will be asserted by Grantor or its affiliates (or any third
party defense or offset now known to Grantor or its affiliates) or to any of the
Senior Obligations secured hereby for so long as any portion of the Senior
Obligations remains outstanding. Grantor will forever warrant and defend its
title to the Trust Property, the rights of Trustee and/or Beneficiary therein
under this Deed of Trust and the validity and priority of the lien of this Deed
of Trust against the claims of all persons and parties except those having
rights under Permitted Encumbrances, to the extent of those rights.
SECTION 1.02. Senior Credit Agreement; Senior Subsidiary Guarantee
Agreement; Certain Amounts. (a) This Deed of Trust is given pursuant to the
Senior Credit Agreement and the Senior Subsidiary Guarantee Agreement. Each and
every term and provision of the Senior Credit Agreement and the Senior
Subsidiary Guarantee Agreement (excluding the governing law provisions thereof),
including the rights, remedies, obligations, covenants, conditions, agreements,
indemnities, representations and warranties of the parties thereto shall be
considered as if a part of this Deed of Trust
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(b) If Trustee or Beneficiary exercises any of their rights or remedies
under this Deed of Trust, or if any actions or proceedings (including any
bankruptcy, insolvency or reorganization proceedings) are commenced in which
Trustee or Beneficiary is made a party and is obliged to defend or uphold or
enforce this Deed of Trust or the rights of Trustee or Beneficiary hereunder or
the terms of any Lease, or if a condemnation proceeding is instituted affecting
the Trust Property, Grantor will pay all reasonable sums, including reasonable
attorneys' fees and disbursements, incurred by Trustee or Beneficiary related to
the exercise of any remedy or right of Trustee or Beneficiary pursuant hereto
and the reasonable expenses of any such action or proceeding together with all
statutory or other costs, disbursements and allowances, interest thereon from
the date of demand for payment thereof at the lesser of (i) the rate specified
in Section 2.07(b) of the Senior Credit Agreement and (ii) the rate which,
together with all fees, charges and other amounts which are treated as interest
on such amounts under applicable law, constitutes the maximum lawful rate which
may be contracted for, charged, taken, received or reserved by Beneficiary in
accordance with applicable law (the "Default Interest Rate"), and such sums
and the interest thereon shall, to the extent permissible by law, be a lien on
the Trust Property prior to any right, title to, interest in or claim upon the
Trust Property attaching or accruing subsequent to the recording of this Deed of
Trust and shall be secured by this Deed of Trust to the extent permitted by law.
Any payment of amounts due under this Deed of Trust not made on or before the
due date for such payments shall accrue interest daily without notice from the
due date until paid at the Default Interest Rate, and such interest at the
Default Interest Rate shall be paid by Grantor to Beneficiary within 10 days
after Grantor's receipt of notice from the Beneficiary that it is due.
SECTION 1.03. Payment of Taxes, Liens and Charges. (a) Except to the
extent they are being contested in the manner permitted by the Senior Credit
Agreement, Grantor will pay and discharge from time to time prior to the time
when the same shall become delinquent, and before any interest or penalty
accrues thereon or attaches thereto, (i) all taxes and assessments (general and
special), water and sewer rents and/or charges, public or private impositions,
levies, dues, permit, inspection and license fees, vault charges, service
charges, public or private common area charges or maintenance charges, utility
charges of every kind and nature which may become liens on the Trust Property
with priority over the lien of this Deed of Trust and (ii) all other material
public or private charges, whether created or evidenced by recorded or
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unrecorded documents or of a like or different nature, imposed upon or assessed
against the Trust Property or any part thereof or upon the Rents from the Trust
Property or arising in respect of the occupancy, use, operation or possession
thereof.
(b) In the event of the passage of any state, Federal, municipal or
other governmental law, order, rule or regulation subsequent to the date hereof
(i) deducting from the value of real property for the purpose of taxation any
lien or encumbrance thereon or in any manner changing or modifying the laws now
in force governing the taxation of this Deed of Trust or debts secured by
mortgages or deeds of trust (other than laws governing income, franchise and
similar taxes generally) or the manner of collecting taxes thereon and (ii)
imposing a tax to be paid by Beneficiary, either directly or indirectly, on this
Deed of Trust or any of the Senior Loan Documents, or requiring an amount of
taxes to be withheld or deducted therefrom, Grantor will promptly notify
Beneficiary of such event. In such event (A) Grantor shall at the request of
Beneficiary, execute an instrument or agreement which obligates Grantor to make
such additional payments as may be necessary to place Grantor and the Senior
Secured Parties in the same economic position they would have been in with
respect to the Senior Loans and other Senior Obligations if such law, order,
rule or regulation had not been passed and (B) Grantor shall make such
additional payments.
(c) At any time that an Event of Default (as hereinafter defined) shall
occur and be continuing, or if required by any law applicable to Grantor or to
Beneficiary, Beneficiary shall have the right to direct Grantor to make an
initial deposit on account of real estate taxes and assessments, insurance
premiums and common area charges, levied against or payable in respect of the
Trust Property in advance and thereafter on a quarterly basis, each such deposit
to be equal to one-quarter of any such annual charges estimated in a reasonable
manner by Beneficiary in order to accumulate with Beneficiary sufficient funds
to pay such taxes, assessments, insurance premiums and charges. Any such
deposits held by Beneficiary shall be returned to Grantor within 30 days after
this Deed of Trust is released or satisfied as provided in Section 3.04.
SECTION 1.04. Payment of Closing Costs. Grantor shall pay all
reasonable costs incurred by or on behalf of the Beneficiary in connection with,
relating to or arising out of the preparation, execution and recording of this
Deed of Trust, including title company charges, inspection costs, recording fees
and taxes, attorneys', engineers' and
12
consultants' fees and disbursements and all other, similar expenses of every
kind.
SECTION 1.05. Plans; Alterations and Waste; Repairs. (a) To the extent
the same exist on the date hereof or are obtained in connection with future
permitted alterations, Grantor shall maintain a complete set of final plans,
specifications, blueprints and drawings for the Trust Property either at the
Trust Property or in a particular office at the headquarters of Grantor to which
Beneficiary shall have access upon reasonable advance notice and at reasonable
times.
(b) Grantor shall not:
(i) demolish or remove all or any material portion of the Improvements;
(ii) commit any waste on the Trust Property or make any alterations to
the Trust Property which would materially diminish the utility of Trust Property
in the conduct of the business of the Grantor or its affiliates as conducted
thereon on the date hereof;
(iii) change the use of the Trust Property or take any other action
with respect to the Trust Property if it would materially increase the risk of
fire or any other hazard or violate the terms of any insurance policy required
by Section 1.06 hereof;
without the consent of the Beneficiary in each instance, such consent not to be
unreasonably withheld or delayed.
(c) Grantor will keep and maintain the Improvements and the Fixtures in
good repair, working order and condition, reasonable wear and tear excepted.
SECTION 1.06. Insurance. Grantor will purchase and maintain liability
insurance, insurance on the Improvements and Fixtures and other insurance in
accordance with the terms of the Senior Credit Agreement.
SECTION 1.07. Casualty; Condemnation/Eminent Domain. Grantor shall give
Beneficiary prompt written notice of any casualty or other damage to the Trust
Property or any proceeding for the taking of the Trust Property or any portion
thereof or interest therein under power of eminent domain or by condemnation or
any similar proceeding. The proceeds received by or on behalf of the Grantor in
respect of any such casualty, damage or taking shall
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constitute trust funds held by the Grantor for the benefit of the Senior Secured
Parties to be applied to in accordance with the terms of the Senior Credit
Agreement.
SECTION 1.08. Assignment of Leases and Rents. (a) Grantor hereby
irrevocably and absolutely grants, transfers and assigns all of its right title
and interest in all Leases, together with any and all extensions and renewals
thereof for purposes of securing and discharging the performance by Grantor of
the Senior Obligations. Grantor has not assigned or executed any assignment of,
and will not assign or execute any assignment of, any other Lease or their
respective Rents to anyone other than Beneficiary.
(b) Without Beneficiary's prior written consent, which shall not be
unreasonably withheld or delayed, Grantor will not enter into, modify, amend,
terminate or consent to the cancelation or surrender of any Lease.
(c) Subject to Section 1.08(d), Grantor has assigned and transferred to
Beneficiary all of Grantor's right, title and interest in and to the Rents now
or hereafter arising from each Lease heretofore or hereafter made or agreed to
by Grantor, it being intended that this assignment establish, subject to Section
1.08(d), an absolute transfer and assignment of all Rents and all Leases to
Trustee for the benefit of the Beneficiary and not merely to grant a security
interest therein. Subject to Section 1.08(d), Beneficiary may in Grantor's name
and stead (with or without first taking possession of any of the Trust Property
personally or by receiver as provided herein) operate the Trust Property and
rent, lease or let all or any portion of any of the Trust Property to any party
or parties at such rental and upon such terms as Beneficiary shall, in its sole
discretion, determine, and may collect and have the benefit of all of said Rents
arising from or accruing at any time thereafter or that may thereafter become
due under any Lease.
(d) So long as an Event of Default shall not have occurred and be
continuing, Beneficiary will not exercise any of its rights under Section
1.08(c), and Grantor shall receive and collect the Rents accruing under any
Lease; but after the happening and during the continuance of any Event of
Default, Beneficiary may, at its option, receive and collect all Rents and enter
upon the Premises and Improvements through its officers, agents, employees or
attorneys for such purpose and for the operation and maintenance thereof.
Grantor hereby irrevocably authorizes and directs each tenant, if any, and each
successor, if any, to the interest of any tenant under any Lease, respectively,
to
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rely upon any notice of a claimed Event of Default sent by Beneficiary to any
such tenant or any of such tenant's successors in interest, and thereafter to
pay Rents to Beneficiary without any obligation or right to inquire as to
whether an Event of Default actually exists and even if some notice to the
contrary is received from the Grantor, who shall have no right or claim against
any such tenant or successor in interest for any such Rents so paid to
Beneficiary. Each tenant or any of such tenant's successors in interest from
whom Beneficiary or any officer, agent, attorney or employee of Beneficiary
shall have collected any Rents, shall be authorized to pay Rents to Grantor only
after such tenant or any of their successors in interest shall have received
written notice from Beneficiary that the Event of Default is no longer
continuing, unless and until a further notice of an Event of Default is given by
Beneficiary to such tenant or any of its successors in interest.
(e) Beneficiary will not become a mortgagee in possession so long as it
does not enter or take actual possession of the Trust Property. In addition,
Beneficiary shall not be responsible or liable for performing any of the
obligations of the landlord under any Lease, for any waste by any tenant, or
others, for any dangerous or defective conditions of any of the Trust Property,
for negligence in the management, upkeep, repair or control of any of the Trust
Property or any other act or omission by any other person.
(f) Grantor shall furnish to Beneficiary, within 45 days after a
request by Beneficiary to do so (but no more frequently than twice annually), a
written statement containing the names of all tenants, subtenants and
concessionaires of the Premises or Improvements, the terms of any Lease, the
space occupied and the rentals or license fees payable thereunder.
SECTION 1.09. Restrictions on Transfers and Encumbrances. Except as
expressly permitted by the Senior Credit Agreement or this Deed of Trust,
Grantor shall not directly or indirectly sell, convey, alienate, assign, lease,
sublease, license, mortgage, pledge, encumber or otherwise transfer, create,
consent to or suffer the creation of any lien, charges or any form of
encumbrance upon any interest in or any part of the Trust Property, or be
divested of its title to the Trust Property or any interest therein in any
manner or way, whether voluntarily or involuntarily (other than resulting from a
condemnation), or engage in any common, cooperative, joint, time-sharing or
other congregate ownership of all or part thereof.
SECTION 1.10. Security Agreement. This Deed of Trust is both a mortgage
of real property and a
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grant of a security interest in personal property, and shall constitute and
serve as a "Security Agreement" within the meaning of the uniform commercial
code as adopted in the state wherein the Premises are located ("UCC"). Grantor
has hereby granted unto Beneficiary a security interest in and to all the Trust
Property described in this Deed of Trust that is not real property, and
simultaneously with the recording of this Deed of Trust, Grantor has filed or
will file UCC financing statements, and will file continuation statements
prior to the lapse thereof, at the appropriate offices in the state in which the
Premises are located to perfect the security interest granted by this Deed of
Trust in all the Trust Property that is not real property. Grantor hereby
appoints Beneficiary as its true and lawful attorney-in-fact and agent, for
Grantor and in its name, place and stead, in any and all capacities, to execute
any document and to file the same in the appropriate offices (to the extent it
may lawfully do so), and to perform each and every act and thing reasonably
requisite and necessary to be done to perfect the security interest contemplated
by the preceding sentence. Beneficiary shall have all rights with respect to the
part of the Trust Property that is the subject of a security interest afforded
by the UCC in addition to, but not in limitation of, the other rights afforded
Beneficiary hereunder and under the Security Agreement.
SECTION 1.11. Filing and Recording. Grantor will cause this Deed of
Trust, any other security instrument creating a security interest in or
evidencing the lien hereof upon the Trust Property 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 security interest
of Beneficiary in, the Trust Property. Grantor will pay all filing, registration
and recording fees, all Federal, state, county and municipal recording,
documentary or intangible taxes and other taxes, duties, imposts, assessments
and charges, and all reasonable expenses incidental to or arising out of or in
connection with the execution, delivery and recording of this Deed of Trust, any
mortgage supplemental hereto, any security instrument with respect to the
Fixtures or any instrument of further assurance.
SECTION 1.12. Further Assurances. Upon demand by Beneficiary, Grantor
will, at the cost of Grantor and without expense to Beneficiary, do, execute,
acknowledge and deliver all such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, transfers and assurances as
16
Beneficiary shall from time to time reasonably require for the better conveying,
assigning, transferring and confirming unto Beneficiary the property and 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 Beneficiary,
or for carrying out the intention or facilitating the performance of the terms
of this Deed of Trust, or for filing, registering or recording this Deed of
Trust, and on demand, Grantor will also execute and deliver and hereby appoints
Beneficiary as its true and lawful attorney-in-fact and agent, for Grantor and
in its name, place and stead, in any and all capacities, to execute and file to
the extent it may lawfully do so, one or more financing statements, chattel
mortgages or comparable security instruments reasonably requested by Beneficiary
to evidence more effectively the lien hereof upon the Fixtures and to perform
each and every act and thing requisite and necessary to be done to accomplish
the same.
SECTION 1.13. Additions to Trust Property. All right, title and
interest of Grantor in and to all extensions, improvements, betterments,
renewals, substitutes and replacements of, and all additions and appurtenances
to, the Trust Property hereafter acquired by or released to Grantor or
constructed, assembled or placed by Grantor upon the Premises or the
Improvements, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement
or conversion, as the case may be, and in each such case without any further
mortgage, conveyance, assignment or other act by Grantor, shall become subject
to the lien and security interest of this Deed of Trust as fully and completely
and with the same effect as though now owned by Grantor and specifically
described in the grant of the Trust Property above, but at any and all times
Grantor will execute and deliver to Beneficiary any and all such further
assurances, mortgages, conveyances or assignments thereof as Beneficiary may
reasonably require for the purpose of expressly and specifically subjecting the
same to the lien and security interest of this Deed of Trust.
SECTION 1.14. No Claims Against Trustee or Beneficiary. Nothing
contained in this Deed of Trust shall constitute any consent or request by
Beneficiary (or Trustee), express or implied, for the performance of any labor
or services or the furnishing of any materials or other property in respect of
the Trust Property or any part thereof, nor as giving Grantor any right, power
or authority to contract for or permit the performance of any labor or services
or the furnishing of any materials or other property in such fashion as would
permit the making of any claim against Beneficiary (or Trustee) in respect
thereof.
17
SECTION 1.15. Fixture Filing. Certain portions of the Trust Property
are or will become "fixtures" (as that term is defined in the UCC) on the Land,
and this Deed of Trust, upon being filed for record in the real estate records
of the county wherein such fixtures are situated, shall operate also as a
financing statement filed as a fixture filing in accordance with the applicable
provisions of said UCC upon such portions of the Trust Property that are or
become fixtures. The addresses of the Grantor, as debtor, and Beneficiary , as
secured party, are set forth in the first page of this Deed of Trust.
SECTION 1.16. Notice Regarding Special Flood Hazard s. Beneficiary has
informed Grantor, and Grantor hereby acknowledges that it realizes, that the
Premises listed on Exhibit B is in an area identified by the Director of the
Federal Emergency Management Agency as a "special flood hazard area" described
in 12 C.F.R. ss.22.2, and Grantor hereby acknowledges that it has received,
prior to the making of the Senior Loans and the incurrence of indebtedness
constituting part of the Senior Obligations, the notice regarding Federal
disaster relief assistance referred to in the Appendix to 12 C.F.R. Part 22.
ARTICLE II
Defaults and Remedies
SECTION 2.01. Events of Default. Any event of default under the Senior
Credit Agreement (as such term is defined therein, an "Event of Default")
shall constitute an Event of Default under this Deed of Trust.
SECTION 2.02. Demand for Payment. If an Event of Default shall occur
and be continuing, then, without protest, demand or notice of Beneficiary,
Grantor will pay to Beneficiary all amounts due hereunder and under the Senior
Credit Agreement and such further amount as shall be sufficient to cover the
costs and expenses of collection, including attorneys' fees, disbursements and
expenses incurred by Beneficiary, and Beneficiary shall be entitled and
empowered to institute an action or proceedings at law or in equity for the
collection of the sums so due and unpaid, to prosecute any such action or
proceedings to judgment or final decree, to enforce any such judgment or final
decree against Grantor and to collect, in any manner provided by law, all moneys
adjudged or decreed to be payable.
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SECTION 2.03. Rights To Take Possession, Operate and Apply Revenues.
(a) If an Event of Default shall occur and be continuing, Grantor shall, upon
demand of Beneficiary, forthwith surrender to Beneficiary actual possession of
the Trust Property and, if and to the extent not prohibited by applicable law,
Beneficiary itself, or by such officers or agents as it may appoint, may then
enter and take possession of all the Trust Property without the appointment of a
receiver or an application therefor, and exclude Grantor and its agents and
employees wholly therefrom.
(b) If Grantor shall for any reason fail to surrender or deliver the
Trust Property or any part thereof after such demand by Beneficiary, Beneficiary
may to the extent not prohibited by applicable law, obtain a judgment or decree
conferring upon Beneficiary the right to immediate possession or requiring
Grantor to deliver immediate possession of the Trust Property to Beneficiary, to
the entry of which judgment or decree Grantor hereby specifically consents.
Grantor will pay to Beneficiary, upon demand, all reasonable expenses of
obtaining such judgment or decree, including reasonable compensation to
Beneficiary's attorneys and agents with interest thereon at the Default Interest
Rate; and all such expenses and compensation shall, until paid, be secured by
this Deed of Trust.
(c) Upon every such entry or taking of possession, Beneficiary may, to
the extent not prohibited by applicable law, hold, store, use, operate, manage
and control the Trust Property, conduct the business thereof and, from time to
time, (i) make all necessary and proper maintenance, repairs, renewals,
replacements, additions, betterments and improvements thereto and thereon, (ii)
purchase or otherwise acquire additional fixtures, personalty and other
property, (iii) insure or keep the Trust Property insured, (iv) manage and
operate the Trust Property and exercise all the rights and powers of Grantor to
the same extent as Grantor could in its own name or otherwise with respect to
the same, or (v) enter into any and all agreements with respect to the exercise
by others of any of the powers herein granted Beneficiary, all as may from time
to time be directed or determined by Beneficiary to be in its best interest and
Grantor hereby appoints Beneficiary as its true and lawful attorney-in-fact and
agent, for Grantor and in its name, place and stead, in any and all capacities,
to perform any of the foregoing acts. Beneficiary may collect and receive all
the Rents, issues, profits and revenues from the Trust Property, including those
past due as well as those accruing thereafter, and, after deducting (i) all
expenses of taking, holding, managing and operating the Trust Property
(including compensation for the services of
19
all persons employed for such purposes), (ii) the costs of all such maintenance,
repairs, renewals, replacements, additions, betterments, improvements, purchases
and acquisitions, (iii) the costs of insurance, (iv) such taxes, assessments and
other similar charges as Beneficiary may at its option pay, (v) other proper
charges upon the Trust Property or any part thereof and (vi) the compensation,
expenses and disbursements of the attorneys and agents of Beneficiary,
Beneficiary shall apply the remainder of the moneys and proceeds so received as
provided in Section 2.08.
(d) Whenever, before any sale of the Trust Property under Section 2.06,
all Senior Obligations that are then due shall have been paid and all Events of
Default fully cured, Beneficiary will surrender possession of the Trust Property
back to Grantor, its successors or assigns. The same right of taking possession
shall, however, arise again if any subsequent Event of Default shall occur and
be continuing.
SECTION 2.04. Right To Cure Grantor's Failure to Perform. Should
Grantor fail in the payment, performance or observance of any term, covenant or
condition set forth in this Deed of Trust or the Senior Credit Agreement (with
respect to the Trust Property) for 10 days after notice of such failure from
Beneficiary (in the case of a monetary default) or 20 days after notice of such
failure from Beneficiary (in the case of a non-monetary default), Beneficiary
may pay, perform or observe the same, and all payments made or costs or expenses
incurred by Beneficiary in connection therewith shall be secured hereby and
shall be repaid by Grantor to Beneficiary with interest thereon at the Default
Interest Rate from the date incurred within 10 days after demand made by
Beneficiary. Beneficiary shall be the judge using reasonable discretion of the
necessity for any such actions and of the amounts to be paid. Beneficiary is
hereby empowered to enter and to authorize others to enter upon the Premises or
the Improvements or any part thereof for the purpose of performing or observing
any such defaulted term, covenant or condition without having any obligation to
so perform or observe and without thereby becoming liable to Grantor, to any
person in possession holding under Grantor or to any other person.
SECTION 2.05. Right to a Receiver. If an Event of Default shall occur
and be continuing, Beneficiary, upon application to a court of competent
jurisdiction, shall be entitled as a matter of right to the appointment of a
receiver (which may be Beneficiary or an employee of Beneficiary or Trustee) to
take possession of and to operate the Trust Property and to collect and apply
the Rents. The receiver
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shall have all of the rights and powers permitted under the laws of the state
wherein the Trust Property is located. Grantor shall pay to Beneficiary upon
demand all reasonable expenses, including receiver's fees, reasonable attorney's
fees and disbursements, costs and agent's compensation incurred pursuant to the
provisions of this Section 2.05; and all such expenses shall be secured by this
Deed of Trust and shall be, without demand, immediately repaid by Grantor to
Beneficiary with interest thereon at the Default Interest Rate.
SECTION 2.06. Foreclosure and Sale. (a) If an Event of Default shall
occur and be continuing, Beneficiary may elect to sell the Trust Property or any
part of the Trust Property by exercise of the power of foreclosure or of sale
granted to Beneficiary and/or Trustee by applicable law or this Deed of Trust.
In such case, Beneficiary or Trustee may commence a civil action to foreclose
this Deed of Trust, or it may proceed and sell the Trust Property to satisfy any
Senior Obligation. Trustee or Beneficiary or an officer appointed by a judgment
of foreclosure to sell the Trust Property, may sell all or such parts of the
Trust Property as may be chosen by Trustee or Beneficiary at the time and place
of sale fixed by it in a notice of sale, either as a whole or in separate lots,
parcels or items as Trustee or Beneficiary shall deem expedient, and in such
order as it may determine, at public auction to the highest bidder. Trustee or
Beneficiary or an officer appointed by a judgment of foreclosure to sell the
Trust Property may postpone any foreclosure or other sale of all or any portion
of the Trust Property by public announcement at such time and place of sale,
and from time to time thereafter may postpone such sale by public announcement
or subsequently noticed sale. Without further notice, Trustee or Beneficiary or
an officer appointed to sell the Trust Property may make such sale at the time
fixed by the last postponement, or may, in its discretion, give a new notice of
sale. Any person, including Grantor or Trustee or Beneficiary or any designee or
affiliate thereof, may purchase at such sale.
(b) The Trust Property may be sold subject to unpaid taxes and
Permitted Encumbrances, and, after deducting all costs, fees and expenses of
Trustee or Beneficiary (including costs of evidence of title in connection with
the sale), Trustee or Beneficiary or an officer that makes any sale shall apply
the proceeds of sale in the manner set forth in Section 2.08.
(c) Any foreclosure or other sale of less than the whole of the Trust
Property or any defective or irregular sale made hereunder shall not exhaust the
power of foreclosure or of
21
sale provided for herein; and subsequent sales may be made hereunder until the
Senior Obligations have been satisfied, or the entirety of the Trust Property
has been sold.
(d) If an Event of Default shall occur and be continuing, Beneficiary
may instead of, or in addition to, exercising the rights described in Section
2.06(a) above and either with or without entry or taking possession as herein
permitted, proceed by a suit or suits in law or in equity or by any other
appropriate proceeding or remedy (i) to specifically enforce payment of some or
all of the Senior Obligations, or the performance of any term, covenant,
condition or agreement of this Deed of Trust or any other Senior Loan Document
or any other right, or (ii) to pursue any other remedy available to Beneficiary,
all as Beneficiary shall determine most effectual for such purposes.
SECTION 2.07. Other Remedies. (a) In case an Event of Default shall
occur and be continuing, Beneficiary may also exercise, to the extent not
prohibited by law, any or all of the remedies available to a secured party under
the UCC.
(b) In connection with a sale of the Trust Property or any Fixtures and
the application of the proceeds of sale as provided in Section 2.08, Beneficiary
shall be entitled to enforce payment of and to receive up to the principal
amount of the Senior Obligations, plus all other charges, payments and costs due
under this Deed of Trust, and to recover a deficiency judgment for any portion
of the aggregate principal amount of the Senior Obligations remaining unpaid,
with interest.
SECTION 2.08. Application of Sale Proceeds and Rents. After any
foreclosure sale of all or any portion of the Trust Property, Beneficiary shall
receive and apply the proceeds of the sale together with any Rents that may have
been collected and any other sums that may then be held by Trustee or
Beneficiary under this Deed of Trust as follows:
FIRST, to the payment of the costs and expenses of such sale,
including compensation to Trustee's and Beneficiary's attorneys and
agents, and of any judicial proceedings wherein the same may be made,
and of all expenses, liabilities and advances made or incurred by
Trustee and Beneficiary under this Deed of Trust, together with
interest at the Default Interest Rate on all advances made by Trustee
and Beneficiary, including all taxes, assessments (or other charges)
(except any taxes, assessments or other charges subject to which the
Trust Property shall have been sold) and the cost of
22
removing any liens or encumbrances (except any liens or encumbrances subject to
which the Trust Property was sold);
SECOND, to the Beneficiary for the distribution to the Senior
Secured Parties for the satisfaction of the Senior Obligations owed to
the Senior Secured Parties; and
THIRD, to the holder of any subordinate mortgage, deed of
trust or deed to secure debt encumbering the Trust Property entitled to
receive such proceeds; and
FOURTH, to the Grantor, its successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Beneficiary shall have absolute discretion as to the time of application of
any such proceeds, moneys or balances in accordance with this Deed of Trust. In
the event of any inconsistency between this Section 2.08 and the Collateral
Trust and Intercreditor Agreement, the Collateral Trust and Intercreditor
Agreement shall control. Nothing in this Deed of Trust shall be interpreted to
make the Trustee or Beneficiary an agent of the Second Priority Debt Parties.
Upon any sale of the Trust Property by the Trustee or Beneficiary (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Trustee or Beneficiary or of the officer making the sale
shall be a sufficient discharge to the purchaser or purchasers of the Trust
Property so sold and such purchaser or purchasers shall not be obligated to see
to the application of any part of the purchase money paid over to the Trustee or
Beneficiary or such officer or be answerable in any way for the misapplication
thereof.
SECTION 2.09. Grantor as Tenant Holding Over. If Grantor remains in
possession of any of the Trust Property after any foreclosure sale by Trustee or
Beneficiary, at Beneficiary's election Grantor shall be deemed a tenant holding
over and shall forthwith surrender possession to the purchaser or purchasers at
such sale or be summarily dispossessed or evicted according to provisions of law
applicable to tenants holding over.
SECTION 2.10. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Grantor waives, to the extent not prohibited by law, (i) the
benefit of all laws now existing or that hereafter may be enacted (x) providing
for any appraisement or valuation of any portion of the Trust
23
Property and/or (y) in any way extending the time for the enforcement or the
collection of amounts due under any of the Senior Obligations or creating or
extending a period of redemption from any sale made in collecting said debt or
any other amounts due Beneficiary, (ii) any right to at any time insist upon,
plead, claim or take the benefit or advantage of any law now or hereafter in
force providing for any homestead exemption, stay, statute of limitations,
extension or redemption, or sale of the Trust Property as separate tracts, units
or estates or as a single parcel in the event of foreclosure or notice of
deficiency, and (iii) all rights of redemption, valuation, appraisement, stay of
execution, notice of election to mature or declare due the whole of or each of
the Senior Obligations and marshaling in the event of foreclosure of this Deed
of Trust.
SECTION 2.11. Discontinuance of Proceedings. In case Trustee or
Beneficiary shall proceed to enforce any right, power or remedy under this Deed
of Trust by foreclosure, entry or otherwise, and such proceedings shall be
discontinued or abandoned for any reason, or shall be determined adversely to
Trustee or Beneficiary, then and in every such case Grantor and Trustee and
Beneficiary shall be restored to their former positions and rights hereunder,
and all rights, powers and remedies of Trustee and Beneficiary shall continue as
if no such proceeding had been taken.
SECTION 2.12. Suits To Protect the Trust Property. Beneficiary shall
have power (a) to institute and maintain suits and proceedings to prevent any
impairment of the Trust Property by any acts that may be unlawful or in
violation of this Deed of Trust, (b) to preserve or protect its interest in the
Trust Property and in the Rents arising therefrom and (c) to restrain the
enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of or compliance with such enactment, rule or order would impair
the security or be prejudicial to the interest of Beneficiary hereunder.
SECTION 2.13. Filing Proofs of Claim. In case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Grantor, Beneficiary shall, to the extent permitted
by law, be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have the claims of Beneficiary allowed in
such proceedings for the Senior Obligations secured by this Deed of Trust at the
date of the institution of such proceedings and for any interest accrued, late
charges and additional interest or other amounts
24
due or that may become due and payable hereunder after such date.
SECTION 2.14. Possession by Beneficiary. Notwithstanding the
appointment of any receiver, liquidator or trustee of Grantor, any of its
property or the Trust Property, Beneficiary shall be entitled, to the extent not
prohibited by law, to remain in possession and control of all parts of the Trust
Property now or hereafter granted under this Deed of Trust to Beneficiary in
accordance with the terms hereof and applicable law.
SECTION 2.15. Waiver. (a) No delay or failure by Beneficiary to
exercise any right, power or remedy accruing upon any breach or Event of Default
shall exhaust or impair any such right, power or remedy or be construed to be a
waiver of any such breach or Event of Default or acquiescence therein; and every
right, power and remedy given by this Deed of Trust to Beneficiary may be
exercised from time to time and as often as may be deemed expedient by
Beneficiary. No consent or waiver by Beneficiary to or of any breach or Event of
Default by Grantor in the performance of the Senior Obligations shall be deemed
or construed to be a consent or waiver to or of any other breach or Event of
Default in the performance of the same or of any other Senior Obligations by
Grantor hereunder. No failure on the part of Beneficiary to complain of any act
or failure to act or to declare an Event of Default, irrespective of how long
such failure continues, shall constitute a waiver by Beneficiary of its rights
hereunder or impair any rights, powers or remedies consequent on any future
Event of Default by Grantor.
(b) Even if Beneficiary (i) grants some forbearance or an extension of
time for the payment of any sums secured hereby, (ii) takes other or additional
security for the payment of any sums secured hereby, (iii) waives or does not
exercise some right granted herein or under the Senior Loan Documents, (iv)
releases a part of the Trust Property from this Deed of Trust, (v) agrees to
change some of the terms, covenants, conditions or agreements of any of the
Senior Loan Documents, (vi) consents to the filing of a map, plat or replat
affecting the Premises, (vii) consents to the granting of an easement or other
right affecting the Premises or (viii) makes or consents to an agreement
subordinating Beneficiary's lien on the Trust Property hereunder; no such act or
omission shall preclude Beneficiary from exercising any other right, power or
privilege herein granted or intended to be granted in the event of any breach or
Event of Default then made or of any subsequent default; nor, except as
otherwise expressly provided in an instrument executed by Beneficiary,
25
shall this Deed of Trust be altered thereby. In the event of the sale or
transfer by operation of law or otherwise of all or part of the Trust Property,
Beneficiary is hereby authorized and empowered to deal with any vendee or
transferee with reference to the Trust Property secured hereby, or with
reference to any of the terms, covenants, conditions or agreements hereof, as
fully and to the same extent as it might deal with the original parties hereto
and without in any way releasing or discharging any liabilities, obligations or
undertakings.
SECTION 2.16. Remedies Cumulative. No right, power or remedy conferred
upon or reserved to Trustee or Beneficiary by this Deed of Trust is intended to
be exclusive of any other right, power or remedy, and each and every such right,
power and remedy shall be cumulative and concurrent and in addition to any other
right, power and remedy given hereunder or now or hereafter existing at law or
in equity or by statute.
ARTICLE III
Miscellaneous
SECTION 3.01. Partial Invalidity. In the event any one or more of the
provisions contained in this Deed of Trust shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such validity, illegality or
unenforceability shall, at the option of Beneficiary, not affect any other
provision of this Deed of Trust, and this Deed of Trust shall be construed as if
such invalid, illegal or unenforceable provision had never been contained herein
or therein.
SECTION 3.02. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and given to Grantor in accordance
with the terms of the Senior Credit Agreement at the address set forth on the
first page of this Deed of Trust and to the Beneficiary as provided in the
Senior Credit Agreement.
SECTION 3.03. Successors and Assigns. All of the grants, covenants,
terms, provisions and conditions herein shall run with the Premises and the
Improvements and shall apply to, bind and inure to, the benefit of the permitted
successors and assigns of Grantor and the successors and assigns of Beneficiary.
SECTION 3.04. Satisfaction and Cancelation. (a) The conveyance to
Trustee or Beneficiary of the Trust Property as
26
security created and consummated by this Deed of Trust shall be null and void
when all the Senior Obligations have been indefeasibly paid in full in
accordance with the terms of the Senior Loan Documents and the Banks have no
further commitment to make Senior Loans under the Senior Credit Agreement, no
Letters of Credit are outstanding and the Issuing Bank has no further obligation
to issue Letters of Credit under the Senior Credit Agreement.
(b) Upon a sale or financing by Grantor of all or any portion of the
Trust Property that is permitted by the Senior Credit Agreement and the
application of the Net Proceeds of such sale or financing in accordance with the
Senior Credit Agreement, the lien of this Deed of Trust shall be released from
the applicable portion of the Trust Property. Grantor shall give the Beneficiary
reasonable written notice of any sale or financing of the Trust Property prior
to the closing of such sale or financing.
(c) In connection with any termination or release pursuant to paragraph
(a), the Deed of Trust shall be marked "satisfied" by the Beneficiary, and this
Deed of Trust shall be canceled of record at the request and at the expense of
the Grantor. Beneficiary shall execute any documents reasonably requested by
Grantor to accomplish the foregoing or to accomplish any release contemplated by
this Section 3.04 and Grantor will pay all costs and expenses, including
reasonable attorneys' fees, disbursements and other charges, incurred by
Beneficiary in connection with the preparation and execution of such documents.
SECTION 3.05. Definitions. As used in this Deed of Trust, the singular
shall include the plural as the context requires and the following words and
phrases shall have the following meanings: (a) "including" shall mean
"including but not limited to"; (b) "provisions" shall mean "provisions,
terms, covenants and/or conditions"; (c) "lien" shall mean "lien, charge,
encumbrance, security interest, mortgage or deed of trust"; (d) "obligation"
shall mean "obligation, duty, covenant and/or condition"; (e) "Trustee" shall
mean "Trustee, for the benefit of the Beneficiary and in accordance with the
Credit Agreement,"; and (f) "any of the Trust Property" shall mean "the Trust
Property or any part thereof or interest therein". Any act that Trustee or
Beneficiary is permitted to perform hereunder may be performed at any time and
from time to time by Trustee or Beneficiary or any person or entity designated
by Beneficiary. Any act that is prohibited to Grantor hereunder is also
prohibited to all lessees of any of the Trust Property, except to the extent
that a Lease executed prior to the date hereof expressly permits such act
without
27
the consent of the Grantor or the holder of any mortgage. Each appointment of
Beneficiary as attorney-in-fact for Grantor under this Deed of Trust is
irrevocable, with power of substitution and coupled with an interest. Subject to
the express provisions to the contrary contained in this Deed of Trust,
Beneficiary has the right to refuse to grant its consent, approval or acceptance
or to indicate its satisfaction, in its sole discretion, whenever such
consent, approval, acceptance or satisfaction is required hereunder. To the
extent that this Deed of Trust provides that any particular consent, approval,
acceptance or satisfaction is subject to the terms of the Senior Credit
Agreement, it shall be granted or withheld as provided in the Senior Credit
Agreement.
SECTION 3.06. Multisite Real Estate Transaction. Grantor acknowledges
that this Deed of Trust is one of a number of Other Mortgages that secure the
Senior Obligations. Grantor agrees that the lien of this Deed of Trust shall be
absolute and unconditional and shall not in any manner be affected or impaired
by any acts or omissions whatsoever of Beneficiary, and without limiting the
generality of the foregoing, the lien hereof shall not be impaired by any
acceptance by the Beneficiary of any security for or guarantees of any of the
Senior Obligations hereby secured, or by any failure, neglect or omission on the
part of Beneficiary to realize upon or protect any Senior Obligation or
indebtedness hereby secured or any collateral security therefor including the
Other Mortgages and other Senior Loan Documents. The lien hereof shall not in
any manner be impaired or affected by any release (except as to the property
released), sale, pledge, surrender, compromise, settlement, renewal, extension,
indulgence, alteration, changing, modification or disposition of any of the
Senior Obligations secured or of any of the collateral security therefor,
including the Other Mortgages and other Senior Loan Documents or of any
guarantee thereof, and Beneficiary may at its discretion foreclose, exercise any
power of sale, or exercise any other remedy available to it under any or all of
the Other Mortgages and other Senior Loan Documents without first exercising or
enforcing any of its rights and remedies hereunder. Such exercise of
Beneficiary's rights and remedies under any or all of the Other Mortgages and
other Senior Loan Documents shall not in any manner impair the indebtedness
hereby secured or the lien of this Deed of Trust and any exercise of the rights
or remedies of Beneficiary hereunder shall not impair the lien of any of the
Other Mortgages and other Senior Loan Documents or any of Beneficiary's rights
and remedies thereunder. Grantor specifically consents and agrees that
Beneficiary may exercise its rights and remedies hereunder and under the Other
28
Mortgages and other Senior Loan Documents separately or concurrently and in any
order that it may deem appropriate and waives any rights of subrogation.
ARTICLE IV
Particular Provisions
This Deed of Trust is subject to the following provisions relating to
the particular laws of the state wherein the Premises are located:
SECTION 4.01. Applicable Law; Certain Particular Provisions. This Deed
of Trust shall be governed by and construed in accordance with the internal law
of the State in which the Trust Property is located without regard to principles
of conflicts of laws and Grantor and Beneficiary agree to submit to jurisdiction
and the laying of venue for any suit on this Deed of Trust in such state, except
that the internal laws of the State of New York (without regard to principles of
conflicts of laws) shall govern (i) those terms and conditions contained in the
Senior Credit Agreement and/or the Senior Subsidiary Guarantee Agreement which
are incorporated by reference herein and (ii) the resolution of issues arising
under the Senior Credit Agreement and/or the Senior Subsidiary Guarantee
Agreement to the extent that such resolution is necessary to the interpretation
of this Deed of Trust. The terms and provisions set forth in Appendix A attached
hereto are hereby incorporated by reference as though fully set forth herein. In
the event of any conflict between the terms and provisions contained in the body
of this Deed of Trust and the terms and provisions set forth in Appendix A, the
terms and provisions set forth in Appendix A shall govern and control.
SECTION 4.02 Trustee's Powers and Liabilities. (a) Trustee, by
acceptance hereof, covenants faithfully to perform and fulfill the trusts herein
created, being liable, however, only for gross negligence, bad faith or wilful
misconduct, and hereby waives any statutory fee and agrees to accept reasonable
compensation, in lieu thereof, for any services rendered by it in accordance
with the terms hereof. All authorities, powers and discretions given in this
Deed of Trust to Trustee and/or Beneficiary may be exercised by either, without
the other, with the same effect as if exercised jointly.
(b) Trustee may resign at any time upon giving 30 days' notice in
writing to Grantor and to Beneficiary.
29
(c) Beneficiary may remove Trustee at any time or from time to time and
select a successor trustee. In the event of the death, removal, resignation,
refusal to act, inability to act or absence of Trustee from the state in which
the premises are located, or in its sole discretion for any reason whatsoever,
Beneficiary may, upon notice to the Grantor and without specifying the reason
therefor and without applying to any court, select and appoint a successor
trustee, and all powers, rights, duties and authority of the former trustee, as
aforesaid, shall thereupon become vested in such successor. Such substitute
trustee shall not be required to give bond for the faithful performance of his
duties unless required by Beneficiary. Such substitute trustee shall be
appointed by written instrument duly recorded in the county where the Land is
located. Grantor hereby ratifies and confirms any and all acts that the herein
named Trustee, or his successor or successors in this trust, shall do lawfully
by virtue hereof. Grantor hereby agrees, on behalf of itself and its heirs,
executors, administrators and assigns, that the recitals contained in any deed
or deeds executed in due form by any Trustee or substitute trustee, acting under
the provisions of this instrument, shall be prima facie evidence of the facts
recited, and that it shall not be necessary to prove in any court, otherwise
than by such recitals, the existence of the facts essential to authorize the
execution and delivery of such deed or deeds and the passing of title thereby.
(d) Trustee shall not be required to see that this Deed of Trust is
recorded, nor liable for its validity or its priority as a first deed of trust,
or otherwise, nor shall Trustee be answerable or responsible for performance or
observance of the covenants and agreements imposed upon Grantor or Beneficiary
by this Deed of Trust or any other agreement. Trustee, as well as Beneficiary,
shall have authority in their respective discretion to employ agents and
attorneys in the execution of this trust and to protect the interest of the
Beneficiary hereunder, and to the extent permitted by law they shall be
compensated and all expenses relating to the employment of such agents and/or
attorneys, including expenses of litigations, shall be paid out of the proceeds
of the sale of the Trust Property conveyed hereby should a sale be had, but if
no such sale be had, all sums so paid out shall be recoverable to the extent
permitted by law by all remedies at law or in equity.
(e) At any time, or from time to time, without liability therefor and
with 10 days' prior written notice to Grantor, upon written request of
Beneficiary and without affecting the effect of this Deed of Trust upon the
remainder of the Trust Property, Trustee may (i) reconvey any part of the Trust
30
Property, (ii) consent in writing to the making of any map or plat thereof, so
long as Grantor has consented thereto, (iii) join in granting any easement
thereon, so long as Grantor has consented thereto, or (iv) join in any extension
agreement or any agreement subordinating the lien or charge hereof.
[The balance of this page intentionally left blank.]
31
IN WITNESS WHEREOF, this Deed of Trust has been duly authorized and has
been executed and delivered by Grantor on the date first written above.
RITE AID OF WEST VIRGINIA, INC.,
a West Virginia corporation,
by: _________________________
Name:
Title:
Attest:
by: ____________________________
Name:
Title:
32
[NEED LOCAL FORM OF ACKNOWLEDGMENT]
Exhibit A
to Deed of Trust
Description of Land
All that certain tract or parcel of land, together with the appurtenances
thereunto belonging or appertaining, situate near Rock Branch (Creek) in
Pocatalico District, Xxxxxx County, West Virginia, being all of Parcels 4, 5 and
6 of the "Rock Branch Regional Industrial Park" and being 23.4949 acres, more or
less, shown on a map prepared by Xxxxxx, Needles, Xxxxxx & Bergendoff (HNTB),
signed by X. X. Xxxxx, Professional Engineer, dated October 7, 1977, and revised
November 10, 1977, and entitled "Map Showing a Parcel of Land Owned by Xxxxxx
County Development Authority to be Conveyed to Rite Aid of West Virginia, Inc.
Situate Pocatalico District Xxxxxx County West Virginia" Scale 1" = 100', which
map is attached hereto and made a part hereof, said parcel being more
particularly bounded and described as follows:
BEGINNING at a concrete monument in the South right-of-way line of State Route
35/15 (Xxxxxx Road) point being 25 feet left of centerline station 18 + 19.43 of
West Virginia Department of Highways Project APL 9376 (001) point also being in
the East right-of-way of a railroad spur; thence leaving said railroad and with
the South line of Route 35/15, S. 77(degrees) 19' 19" E. for 119.43 feet to a
concrete right-of-way marker, point being 25 feet left of centerline station 17
+ 00; thence continuing with said right-of-way, N. 12(degrees) 40' 41" E. for
5.00 feet to a concrete right-of-way marker, point being 20 feet left of
centerline station 17 + 00; thence continuing with the South right-of-way line
of Route 35/15, S. 77(degrees) 19' 19" E. for 550.00 feet to a concrete monument
20 feet left of centerline station 11 + 50; thence continuing with said
right-of-way line, S. 67(degrees) 23' 45" E. for 203.04 feet to a point 55 feet
left of centerline station 9 + 00; thence continuing with said right-of-way, S.
68(degrees) 13' 54" E. for 50.64 feet to a point 63 feet left of centerline
station 9 + 00; thence again with said south right-of-way line, S. 77(degrees)
19' 19" E. for 33.01 feet to a point in the line of X. X. Xxxxxxxx, point being
63 feet left of centerline station 8 + 66.99, point also being S. 14(degrees)
37' 26" W. 41.88 feet from a copperweld pin in the bank of Route 35/15; thence
leaving the right-of-way line of Route 35/15 and with X. X. Xxxxxxxx line, S.
14(degrees) 37' 26" W. for 141.56 feet to a 1-1/2 inch steel pin on the East
bank of Rock Branch Creek (formerly Xxxxxxxxx Creek), point being the common
corner of
X. X. Xxxxxxxx and X. X. Xxxxxxxx; thence leave Xxxxxxxx and with Xxxxxxxx line,
S. 13(degrees) 54' 14" W. for 75.87 feet to a point on the bank of said creek,
point being the common corner to X. X. Xxxxxxxx and Guy and Xxxx Xxxx; thence
leave Xxxxxxxx and with the Xxxx line, S. 13(degrees) 34' 00" W. for 74.13 feet
to a point on Rock Branch Creek; thence continuing with the Xxxx line, S.
30(degrees) 11' 00" W. for 80.97 feet to a point on said creek, common corner to
Xxxx and Audis and Xxxxx Xxxxxx; thence leaving Xxxx and with the Xxxxxx line,
S. 28(degrees) 08' 26" W. for 200.00 feet to a 1/2 inch iron pin on the West
bank of Rock Branch Creek, point being the common corner to Xxxxxx and Xxxx and
Xxxxxxx Xxxxxxxx; thence leave Xxxxxx and with Xxxxxxxx'x line, S. 28(degrees)
08' 26" W. for 75.18 feet to a concrete monument, common corner to Xxxxxxxx and
Parcel 3 of Rock Branch Industrial Park; thence leaving Xxxxxxxx and with the
dividing line of Parcels 3 and 6 of said Park, S. 35(degrees) 55' 21" W. for
602.16 feet to a set 1/2 inch reinforcing rod in the North line of Xxxxxxxx
Drive, point being 37.5 feet from centerline; thence leave Parcel 3 and with the
north line of said Drive, and with a curve having a radius of 801.44 feet, chord
of said curve being N. 69(degrees) 27' 14" W. for 113.44 feet to a copperweld
pin 37.5 feet left of P. C. Station 20 + 82.24 of Xxxxxxxx Drive; thence
continuing with a line 37.5 feet north of and parallel with said centerline, N.
73(degrees) 30' 44" W. for 534.13 feet to a set 1/2 inch reinforcing rod 37.5
feet North of centerline of Xxxxxxxx Drive and also being in the East line of a
railroad right-of-way, being 12.5 feet from the centerline of said railroad;
thence leaving Xxxxxxxx Drive and with the East line of said railroad, N.
14(degrees) 25' 32" E. for 1174.70 feet to the place of beginning.
Street Address:
Xxxx Xxxxxx Xxxxxxxxxx Xxxx
Xxxx, XX 00000.
Exhibit B
to Deed of Trust
Premises Located in a
Special Flood Hazard Area
None.
Appendix A
to Deed of Trust
Local Law Provisions
Appendix B
to Deed of Trust
Definitions Annex
================================================================================
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE
A CREDIT LINE DEED OF TRUST, SECURITY AGREEMENT AND
ASSIGNMENT OF LEASES AND RENTS
From
THRIFTY PAYLESS, INC.
TO
FIRST AMERICAN TITLE COMPANY LOS ANGELES
for the benefit of
CITICORP USA, INC.,
as SENIOR COLLATERAL AGENT FOR
THE BENEFIT OF THE SENIOR SECURED PARTIES
as BENEFICIARY
Dated: as of June 27, 2001
Premises: Woodland Distribution Center
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Yolo County
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
Representations, Warranties and Covenants
of Grantor
SECTION 1.01. Title ..................................................... 9
SECTION 1.02. Senior Credit Agreement; Senior
Subsidiary Guarantee Agreement;
Certain Amounts......................................... 10
SECTION 1.03. Payment of Taxes, Liens and
Charges ................................................ 11
SECTION 1.04. Payment of Closing Costs .................................. 12
SECTION 1.05. Plans; Alterations and Waste;
Repairs ................................................ 13
SECTION 1.06. Insurance ................................................. 13
SECTION 1.07. Casualty; Condemnation/Eminent
Domain ................................................. 13
SECTION 1.08. Assignment of Leases and Rents ............................ 14
SECTION 1.09. Restrictions on Transfers and
Encumbrances ........................................... 15
SECTION 1.10. Security Agreement ........................................ 15
SECTION 1.11. Filing and Recording ...................................... 16
SECTION 1.12. Further Assurances ........................................ 16
SECTION 1.13. Additions to Trust Property ............................... 17
SECTION 1.14. No Claims Against Trustee or
Beneficiary ............................................ 17
SECTION 1.15. Fixture Filing ............................................ 18
SECTION 1.16. Notice Regarding Special Flood
Hazards ................................................ 18
ARTICLE II
Defaults and Remedies
SECTION 2.01. Events of Default ......................................... 18
SECTION 2.02. Demand for Payment ........................................ 18
SECTION 2.03. Rights To Take Possession, Operate and
Apply Revenues ......................................... 19
SECTION 2.04. Right To Cure Grantor's Failure to
Perform ................................................ 20
SECTION 2.05. Right to a Receiver ....................................... 20
SECTION 2.06. Foreclosure and Sale ...................................... 21
SECTION 2.07. Other Remedies ............................................ 22
SECTION 2.08. Application of Sale Proceeds and
Rents .................................................. 22
SECTION 2.09. Grantor as Tenant Holding Over ............................ 23
SECTION 2.10. Waiver of Appraisement, Valuation, Stay,
Extension and Redemption Laws .......................... 23
SECTION 2.11. Discontinuance of Proceedings ............................. 24
SECTION 2.12. Suits To Protect the Trust
Property ............................................... 24
SECTION 2.13. Filing Proofs of Claim .................................... 24
SECTION 2.14. Possession by Trustee or Beneficiary ...................... 25
SECTION 2.15. Waiver .................................................... 25
SECTION 2.16. Remedies Cumulative ....................................... 26
ARTICLE III
Miscellaneous
SECTION 3.01. Partial Invalidity ........................................ 26
SECTION 3.02. Notices ................................................... 26
SECTION 3.03. Successors and Assigns .................................... 26
SECTION 3.04. Satisfaction and Cancelation. ............................. 26
SECTION 3.05. Definitions ............................................... 27
SECTION 3.06. Multisite Real Estate Transaction ......................... 28
ARTICLE IV
Particular Provisions
SECTION 4.01. Applicable Law; Certain Particular
Provisions ............................................. 29
SECTION 4.02. Trustee's Powers and Liabilities .......................... 29
Exhibit A Description of Land
Exhibit B Premises Located in a Special Flood Hazard
Area
Appendix A Local Law Provisions
Appendix B Definitions Annex
THIS CREDIT LINE DEED OF TRUST, SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS dated as of June 27, 2001
(this "Deed of Trust"), by THRIFTY PAYLESS, INC., a California
corporation, having an office at 00 Xxxxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxxxx 00000 (the "Grantor"), to FIRST AMERICAN TITLE
COMPANY LOS ANGELES, having an office at 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx, XX 00000, as trustee ("Trustee") for the
benefit of CITICORP USA, INC., a Delaware corporation, having
an office at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (the
"Beneficiary") as Senior Collateral Agent for the benefit of
the Senior Secured Parties;
W I T N E S S E T H T H A T:
Capitalized terms used but not defined in this Deed of Trust have the
meanings given to them in the Definitions Annex annexed hereto as Appendix B.
Reference is made to the Senior Credit Agreement dated as of even date
herewith (as amended, replaced or refinanced from time to time, the "Senior
Credit Agreement"), among Rite Aid Corporation, a Delaware corporation (the
"Borrower"), the banks from time to time party thereto, Citicorp USA, Inc., as
Senior Administrative Agent and Senior Collateral Agent and The Chase Manhattan
Bank, Credit Suisse First Boston and Fleet Retail Finance, Inc. as Syndication
Agents.
Pursuant to the terms of, and subject to the conditions specified in,
the Senior Credit Agreement, (i) the Senior Banks have agreed to make certain
term and revolving loans to the Borrower, (ii) one or more Senior Banks (the
"Swingline Banks") have agreed to make swingline loans to the Borrower on an
uncommitted basis (the "Swingline Loans" - together with the loans referenced
in clause (i), above, the "Senior Loans") and (iii) one or more Senior Banks
(the "Issuing Banks") have agreed to issue letters of credit (the "Letters of
Credit") for the account of the Borrower.
Grantor is a wholly owned subsidiary of the Borrower and will derive
substantial benefit from the making of the Senior Loans by the Senior Banks and
the issuance of the Letters of Credit by the Issuing Banks. In order to induce
the Senior Banks to make the Senior Loans and the Issuing Banks to issue Letters
of Credit, the Grantor has agreed to guarantee, the due and punctual payment of
the Senior Bank Obligations and the 10.5% Note Obligations (together, the
"Senior
5
Obligations") pursuant to the terms of the senior subsidiary guarantee agreement
dated as of even date herewith (the "Senior Subsidiary Guarantee Agreement")
made by Grantor and certain other Subsidiaries of Borrower (each, a "Subsidiary
Guarantor") in favor of Beneficiary in its capacity as Senior Collateral Agent
for the benefit of the Senior Bank Parties and the 10.5% Note Parties (together,
the "Senior Secured Parties").
The sum of the principal amount of the Senior Loans and the Letters of
Credit from time to time outstanding and secured hereby shall not exceed
$1,900,000,000.
The obligations of the Senior Banks to make Senior Loans and of the
Issuing Banks to issue Letters of Credit are conditioned upon, among other
things, the execution and delivery by the Grantor of this Deed of Trust in the
form hereof to secure the guarantee of the Senior Obligations contained in the
Senior Subsidiary Guarantee Agreement.
Pursuant to the requirements of the Senior Credit Agreement and the
Senior Subsidiary Guarantee Agreement, the Grantor therefore grants this Deed of
Trust to create a lien on and a security interest in the Trust Property (as
defined herein) to secure the payment and performance of the Senior Obligations.
The Senior Credit Agreement also requires the granting by other Subsidiary
Guarantors of mortgages, deeds of trust and deeds to secure debt (the "Other
Mortgages") that create liens on and security interests in certain parcels of
real property and related fixtures (each, a "Trust Property") other than the
Trust Property to secure the payment and performance of the Senior Obligations.
Granting Clauses
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and in order to
secure the due and punctual payment and performance of the Senior Obligations
for the benefit of the Senior Secured Parties, Grantor hereby grants, conveys,
mortgages, assigns and pledges to the TRUSTEE, IN TRUST FOREVER, with power of
sale, for the benefit of the Beneficiary and its successors, a security interest
in, all the following described property (the "Trust Property") whether now
owned or held or hereafter acquired:
(1) the land more particularly described on Exhibit A hereto
(the "Land"), together with all rights appurtenant thereto which may,
by their terms or as a matter of law, be conveyed or assigned along
with the
6
Land, including the easements over certain other adjoining land granted
by any easement agreements, covenant or restrictive agreements and all
air rights, mineral rights, water rights, oil and gas rights and
development rights, if any, relating thereto, and also together with
all of the other easements, rights, privileges, interests,
hereditaments and appurtenances thereunto belonging or in any way
appertaining and all of the estate, right, title, interest, claim or
demand whatsoever of Grantor therein and in the streets and ways
adjacent thereto, either in law or in equity, in possession or
expectancy, now or hereafter acquired (the "Premises");
(2) all buildings, improvements, structures, paving, parking
areas, walkways and landscaping now or hereafter erected or located
upon the Land, and all fixtures of every kind and type affixed to the
Premises or attached to or forming part of any structures, buildings or
improvements and replacements thereof now or hereafter erected or
located upon the Land (the "Improvements");
(3) all apparatus, appliances, building materials, equipment,
fittings, machinery and other articles of tangible personal property of
every kind and nature, and replacements thereof, owned by Grantor and
now or at any time hereafter affixed to the Improvements or the
Premises, including all pumps, tanks, machinery, apparatus equipment,
lifts (including fire sprinklers and alarm systems, fire prevention or
control systems, cleaning rigs, air conditioning, heating, boilers,
refrigerating, electronic monitoring, water, loading, unloading,
lighting, power, sanitation, waste removal, communications, partitions,
lighting fixtures, freezers, refrigerators, walk-in coolers, signs
(indoor and outdoor), and all other items of tangible personal property
of any kind affixed to the Improvements or the Premises, it being
understood that the enumeration of any specific articles of property
shall in no way result in or be held to exclude any items of property
not specifically mentioned (the property referred to in this
subparagraph (3), the "Fixtures");
(4) all general intangibles owned by Grantor and relating to
design, development, operation, management and use of the Premises or
the Improvements, all certificates of occupancy, zoning variances,
building, use or other permits, approvals, authorizations and consents
obtained from and all materials prepared for filing or filed with any
governmental agency in
7
connection with the development, use, operation or management of the
Premises and Improvements, all construction, service, engineering,
consulting, leasing, architectural and other similar contracts
concerning the design, construction, management, operation, occupancy
and/or use of the Premises and Improvements, all architectural
drawings, plans, specifications, soil tests, feasibility studies,
appraisals, environmental studies, engineering reports and similar
materials relating to any portion of or all of the Premises and
Improvements, and all payment and performance bonds or warranties or
guarantees relating to the Premises or the Improvements, all to the
extent assignable (the "Permits, Plans and Warranties");
(5) all now or hereafter existing leases or licenses (under
which Grantor is landlord or licensor) and subleases (under which
Grantor is sublandlord), concession, management, mineral or other
agreements of a similar kind that permit the use or occupancy of the
Premises or the Improvements for any purpose in return for any payment,
or the extraction or taking of any gas, oil, water or other minerals
from the Premises in return for payment of any fee, rent or royalty
(collectively, "Leases"), and all agreements or contracts for the
sale or other disposition of all or any part of the Premises or the
Improvements, now or hereafter entered into by Grantor, together with
all charges, fees, income, issues, profits, receipts, rents, revenues
or royalties payable thereunder ("Rents");
(6) all real estate tax refunds and all proceeds of the
conversion, voluntary or involuntary, of any of the Trust Property into
cash or liquidated claims ("Proceeds"), including Proceeds of
insurance maintained by the Grantor and condemnation awards, any awards
that may become due by reason of the taking by eminent domain or any
transfer in lieu thereof of the whole or any part of the Premises or
Improvements or any rights appurtenant thereto, and any awards for
change of grade of streets, together with any and all moneys now or
hereafter on deposit for the payment of real estate taxes, assessments
or common area charges levied against the Trust Property, unearned
premiums on policies of fire and other insurance maintained by the
Grantor covering any interest in the Trust Property or required by the
Senior Credit Agreement; and
(7) all extensions, improvements, betterments, renewals,
substitutes and replacements of and all
8
additions and appurtenances to, the Land, the Premises, the
Improvements, the Fixtures, the Permits, Plans and Warranties and the
Leases, hereinafter acquired by or released to the Grantor or
constructed, assembled or placed by the Grantor on the Land, the
Premises or the Improvements, and all conversions of the security
constituted thereby, immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case may be,
and in each such case, without any further mortgage, deed of trust,
conveyance, assignment or other act by the Grantor, all of which shall
become subject to the lien of this Deed of Trust as fully and
completely, and with the same effect, as though now owned by the
Grantor and specifically described herein.
TO HAVE AND TO HOLD the Trust Property unto the Trustee, its successors
and assigns, for the ratable benefit of the Senior Secured Parties, forever,
subject only to the Permitted Encumbrances (as hereinafter defined) and to
satisfaction and cancelation as provided in Section 3.04, IN TRUST
NEVERTHELESS, upon the terms and trust herein set forth for the benefit and
security of the Beneficiary.
ARTICLE I
Representations, Warranties and Covenants of Grantor
Grantor agrees, covenants, represents and/or warrants as follows:
SECTION 1.01. Title. (a) Grantor has good and marketable title to:
(i) an indefeasible fee estate in the Land and Improvements; and
(ii) all of the Fixtures;
subject only to (A) liens, pledges, charges and other encumbrances which are
identified in Section 4.15(a) of the Senior Credit Agreement and (B) minor
defects in title that do not interfere with the ability of Grantor or any other
subsidiary of the Borrower to conduct its business as presently conducted or to
utilize the Trust Property for its intended purpose (collectively, the
"Permitted Encumbrances").
9
(b) There are no Leases affecting the Land or the Improvements except
as disclosed in the Senior Credit Agreement.
(c) Grantor is not obligated under, and the Trust Property is not bound
by or subject to, any right, of first refusal, option or other contractual right
to sell, assign or otherwise dispose of any Trust Property or any interest
therein.
(d) The granting of this Deed of Trust is within Grantor's corporate
powers and has been duly authorized by all necessary corporate, and, if
required, stockholder action. This Deed of Trust has been duly executed and
delivered by Grantor and constitutes a legal, valid and binding obligation of
Grantor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(e) This Deed of Trust, when duly recorded in the appropriate public
records and when financing statements are duly filed in the appropriate public
records, will create a valid, perfected and enforceable first-priority lien upon
and security interest in all the Trust Property subject only to Permitted
Encumbrances. As of the date hereof, there are no defenses or offsets to this
Deed of Trust that will be asserted by Grantor or its affiliates (or any third
party defense or offset now known to Grantor or its affiliates) or to any of the
Senior Obligations secured hereby for so long as any portion of the Senior
Obligations remains outstanding. Grantor will forever warrant and defend its
title to the Trust Property, the rights of Trustee and/or Beneficiary therein
under this Deed of Trust and the validity and priority of the lien of this Deed
of Trust against the claims of all persons and parties except those having
rights under Permitted Encumbrances, to the extent of those rights.
SECTION 1.02. Senior Credit Agreement; Senior Subsidiary Guarantee
Agreement; Certain Amounts. (a) This Deed of Trust is given pursuant to the
Senior Credit Agreement and the Senior Subsidiary Guarantee Agreement. Each and
every term and provision of the Senior Credit Agreement and the Senior
Subsidiary Guarantee Agreement (excluding the governing law provisions thereof),
including the rights, remedies, obligations, covenants, conditions, agreements,
indemnities, representations and warranties of the parties thereto shall be
considered as if a part of this Deed of Trust.
10
(b) If Trustee or Beneficiary exercises any of its rights or remedies
under this Deed of Trust, or if any actions or proceedings (including any
bankruptcy, insolvency or reorganization proceedings) are commenced in which
Trustee or Beneficiary is made a party and is obliged to defend or uphold or
enforce this Deed of Trust or the rights of Trustee or Beneficiary hereunder or
the terms of any Lease, or if a condemnation proceeding is instituted affecting
the Trust Property, Grantor will pay all reasonable sums, including reasonable
attorneys' fees and disbursements, incurred by Trustee or Beneficiary related to
the exercise of any remedy or right of Trustee or Beneficiary pursuant hereto
and the reasonable expenses of any such action or proceeding together with all
statutory or other costs, disbursements and allowances, interest thereon from
the date of demand for payment thereof at the lesser of (i) the rate specified
in Section 2.07(b) of the Senior Credit Agreement and (ii) the rate which,
together with all fees, charges and other amounts which are treated as interest
on such amounts under applicable law, constitutes the maximum lawful rate which
may be contracted for, charged, taken, received or reserved by Beneficiary in
accordance with applicable law (the "Default Interest Rate"), and such sums
and the interest thereon shall, to the extent permissible by law, be a lien on
the Trust Property prior to any right, title to, interest in or claim upon the
Trust Property attaching or accruing subsequent to the recording of this Deed of
Trust and shall be secured by this Deed of Trust to the extent permitted by law.
Any payment of amounts due under this Deed of Trust not made on or before the
due date for such payments shall accrue interest daily without notice from the
due date until paid at the Default Interest Rate, and such interest at the
Default Interest Rate shall be paid by Grantor to Beneficiary within 10 days
after Grantor's receipt of notice from the Beneficiary that it is due.
SECTION 1.03. Payment of Taxes, Liens and Charges. (a) Except to the
extent they are being contested in the manner permitted by the Senior Credit
Agreement, Grantor will pay and discharge from time to time prior to the time
when the same shall become delinquent, and before any interest or penalty
accrues thereon or attaches thereto, (i) all taxes and assessments (general and
special), water and sewer rents and/or charges, public or private impositions,
levies, dues, permit, inspection and license fees, vault charges, service
charges, public or private common area charges or maintenance charges, utility
charges of every kind and nature which may become liens on the Trust Property
with priority over the lien of this Deed of Trust and (ii) all other material
public or private charges, whether created or evidenced by recorded or
11
unrecorded documents or of a like or different nature, imposed upon or assessed
against the Trust Property or any part thereof or upon the Rents from the Trust
Property or arising in respect of the occupancy, use, operation or possession
thereof.
(b) In the event of the passage of any state, Federal, municipal or
other governmental law, order, rule or regulation subsequent to the date hereof
(i) deducting from the value of real property for the purpose of taxation any
lien or encumbrance thereon or in any manner changing or modifying the laws now
in force governing the taxation of this Deed of Trust or debts secured by
mortgages or deeds of trust (other than laws governing income, franchise and
similar taxes generally) or the manner of collecting taxes thereon and (ii)
imposing a tax to be paid by Beneficiary, either directly or indirectly, on this
Deed of Trust or any of the Senior Loan Documents, or requiring an amount of
taxes to be withheld or deducted therefrom, Grantor will promptly notify
Beneficiary of such event. In such event (A) Grantor shall at the request of
Beneficiary, execute an instrument or agreement which obligates Grantor to make
such additional payments as may be necessary to place Grantor and the Senior
Secured Parties in the same economic position they would have been in with
respect to the Senior Loans and other Senior Obligations if such law, order,
rule or regulation had not been passed and (B) Grantor shall make such
additional payments.
(c) At any time that an Event of Default (as hereinafter defined) shall
occur and be continuing, or if required by any law applicable to Grantor or to
Beneficiary, Beneficiary shall have the right to direct Grantor to make an
initial deposit on account of real estate taxes and assessments, insurance
premiums and common area charges, levied against or payable in respect of the
Trust Property in advance and thereafter on a quarterly basis, each such deposit
to be equal to one-quarter of any such annual charges estimated in a reasonable
manner by Beneficiary in order to accumulate with Beneficiary sufficient funds
to pay such taxes, assessments, insurance premiums and charges. Any such
deposits held by Beneficiary shall be returned to Grantor within 30 days after
this Deed of Trust is released or satisfied as provided in Section 3.04.
SECTION 1.04. Payment of Closing Costs. Grantor shall pay all
reasonable costs incurred by or on behalf of the Beneficiary in connection with,
relating to or arising out of the preparation, execution and recording of this
Deed of Trust, including title company charges, inspection costs, recording fees
and taxes, attorneys', engineers' and
12
consultants' fees and disbursements and all other, similar expenses of every
kind.
SECTION 1.05. Plans; Alterations and Waste; Repairs. (a) To the extent
the same exist on the date hereof or are obtained in connection with future
permitted alterations, Grantor shall maintain a complete set of final plans,
specifications, blueprints and drawings for the Trust Property either at the
Trust Property or in a particular office at the headquarters of Grantor to which
Beneficiary shall have access upon reasonable advance notice and at reasonable
times.
(b) Grantor shall not:
(i) demolish or remove all or any material portion of the Improvements;
(ii) commit any waste on the Trust Property or make any alterations to
the Trust Property which would materially diminish the utility of Trust Property
in the conduct of the business of the Grantor or its affiliates as conducted
thereon on the date hereof;
(iii) change the use of the Trust Property or take any other action
with respect to the Trust Property if it would materially increase the risk of
fire or any other hazard or violate the terms of any insurance policy required
by Section 1.06 hereof;
without the consent of the Beneficiary in each instance, such consent not to be
unreasonably withheld or delayed.
(c) Grantor will keep and maintain the Improvements and the Fixtures in
good repair, working order and condition, reasonable wear and tear excepted.
SECTION 1.06. Insurance. Grantor will purchase and maintain liability
insurance, insurance on the Improvements and Fixtures and other insurance in
accordance with the terms of the Senior Credit Agreement.
SECTION 1.07. Casualty; Condemnation/Eminent Domain. Grantor shall give
Beneficiary prompt written notice of any casualty or other damage to the Trust
Property or any proceeding for the taking of the Trust Property or any portion
thereof or interest therein under power of eminent domain or by condemnation or
any similar proceeding. The proceeds received by or on behalf of the Grantor in
respect of any such casualty, damage or taking shall constitute trust funds held
by the Grantor for the benefit of the Senior Secured Parties
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to be applied to in accordance with the terms of the Senior Credit Agreement.
SECTION 1.08. Assignment of Leases and Rents. (a) Grantor hereby
irrevocably and absolutely grants, transfers and assigns all of its right title
and interest in all Leases, together with any and all extensions and renewals
thereof for purposes of securing and discharging the performance by Grantor of
the Senior Obligations. Grantor has not assigned or executed any assignment of,
and will not assign or execute any assignment of, any other Lease or their
respective Rents to anyone other than Beneficiary.
(b) Without Beneficiary's prior written consent, which shall not be
unreasonably withheld or delayed, Grantor will not enter into, modify, amend,
terminate or consent to the cancelation or surrender of any Lease.
(c) Subject to Section 1.08(d), Grantor has assigned and transferred to
Beneficiary all of Grantor's right, title and interest in and to the Rents now
or hereafter arising from each Lease heretofore or hereafter made or agreed to
by Grantor, it being intended that this assignment establish, subject to Section
1.08(d), an absolute transfer and assignment of all Rents and all Leases to
Trustee for the benefit of the Beneficiary and not merely to grant a security
interest therein. Subject to Section 1.08(d), Beneficiary may in Grantor's name
and stead (with or without first taking possession of any of the Trust Property
personally or by receiver as provided herein) operate the Trust Property and
rent, lease or let all or any portion of any of the Trust Property to any party
or parties at such rental and upon such terms as Beneficiary shall, in its sole
discretion, determine, and may collect and have the benefit of all of said Rents
arising from or accruing at any time thereafter or that may thereafter become
due under any Lease.
(d) So long as an Event of Default shall not have occurred and be
continuing, Beneficiary will not exercise any of its rights under Section
1.08(c), and Grantor shall receive and collect the Rents accruing under any
Lease; but after the happening and during the continuance of any Event of
Default, Beneficiary may, at its option, receive and collect all Rents and enter
upon the Premises and Improvements through its officers, agents, employees or
attorneys for such purpose and for the operation and maintenance thereof.
Grantor hereby irrevocably authorizes and directs each tenant, if any, and each
successor, if any, to the interest of any tenant under any Lease, respectively,
to rely upon any notice of a claimed Event of Default sent by Beneficiary to any
such tenant or any
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of such tenant's successors in interest, and thereafter to pay Rents to
Beneficiary without any obligation or right to inquire as to whether an Event of
Default actually exists and even if some notice to the contrary is received from
the Grantor, who shall have no right or claim against any such tenant or
successor in interest for any such Rents so paid to Beneficiary. Each tenant or
any of such tenant's successors in interest from whom Beneficiary or any
officer, agent, attorney or employee of Beneficiary shall have collected any
Rents, shall be authorized to pay Rents to Grantor only after such tenant or any
of their successors in interest shall have received written notice from
Beneficiary that the Event of Default is no longer continuing, unless and until
a further notice of an Event of Default is given by Beneficiary to such tenant
or any of its successors in interest.
(e) Beneficiary will not become a mortgagee in possession so long as it
does not enter or take actual possession of the Trust Property. In addition,
Beneficiary shall not be responsible or liable for performing any of the
obligations of the landlord under any Lease, for any waste by any tenant, or
others, for any dangerous or defective conditions of any of the Trust Property,
for negligence in the management, upkeep, repair or control of any of the Trust
Property or any other act or omission by any other person.
(f) Grantor shall furnish to Beneficiary, within 45 days after a
request by Beneficiary to do so (but no more frequently than twice annually), a
written statement containing the names of all tenants, subtenants and
concessionaires of the Premises or Improvements, the terms of any Lease, the
space occupied and the rentals or license fees payable thereunder.
SECTION 1.09. Restrictions on Transfers and Encumbrances. Except as
expressly permitted by the Senior Credit Agreement or this Deed of Trust,
Grantor shall not directly or indirectly sell, convey, alienate, assign, lease,
sublease, license, mortgage, pledge, encumber or otherwise transfer, create,
consent to or suffer the creation of any lien, charges or any form of
encumbrance upon any interest in or any part of the Trust Property, or be
divested of its title to the Trust Property or any interest therein in any
manner or way, whether voluntarily or involuntarily (other than resulting from a
condemnation), or engage in any common, cooperative, joint, time-sharing or
other congregate ownership of all or part thereof.
SECTION 1.10. Security Agreement. This Deed of Trust is both a mortgage
of real property and a
grant of a security
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interest in personal property, and shall constitute and serve as a "Security
Agreement" within the meaning of the uniform commercial code as adopted in the
state wherein the Premises are located ("UCC"). Grantor has hereby granted unto
Beneficiary a security interest in and to all the Trust Property described in
this Deed of Trust that is not real property, and simultaneously with the
recording of this Deed of Trust, Grantor has filed or will file UCC financing
statements, and will file continuation statements prior to the lapse thereof,
at the appropriate offices in the state in which the Premises are located to
perfect the security interest granted by this Deed of Trust in all the Trust
Property that is not real property. Grantor hereby appoints Beneficiary as its
true and lawful attorney-in-fact and agent, for Grantor and in its name, place
and stead, in any and all capacities, to execute any document and to file the
same in the appropriate offices (to the extent it may lawfully do so), and to
perform each and every act and thing reasonably requisite and necessary to be
done to perfect the security interest contemplated by the preceding sentence.
Beneficiary shall have all rights with respect to the part of the Trust Property
that is the subject of a security interest afforded by the UCC in addition to,
but not in limitation of, the other rights afforded Beneficiary hereunder and
under the Security Agreement.
SECTION 1.11. Filing and Recording. Grantor will cause this Deed of
Trust, any other security instrument creating a security interest in or
evidencing the lien hereof upon the Trust Property 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 security interest
of Beneficiary in, the Trust Property. Grantor will pay all filing, registration
and recording fees, all Federal, state, county and municipal recording,
documentary or intangible taxes and other taxes, duties, imposts, assessments
and charges, and all reasonable expenses incidental to or arising out of or in
connection with the execution, delivery and recording of this Deed of Trust, any
mortgage supplemental hereto, any security instrument with respect to the
Fixtures or any instrument of further assurance.
SECTION 1.12. Further Assurances. Upon demand by Beneficiary, Grantor
will, at the cost of Grantor and without expense to Beneficiary, do, execute,
acknowledge and deliver all such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, transfers and assurances as Beneficiary
shall from time to time reasonably require for
16
the better conveying, assigning, transferring and confirming unto Beneficiary
the property and 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 Beneficiary, or for carrying out the intention or facilitating the
performance of the terms of this Deed of Trust, or for filing, registering or
recording this Deed of Trust, and on demand, Grantor will also execute and
deliver and hereby appoints Beneficiary as its true and lawful attorney-in-fact
and agent, for Grantor and in its name, place and stead, in any and all
capacities, to execute and file to the extent it may lawfully do so, one or more
financing statements, chattel mortgages or comparable security instruments
reasonably requested by Beneficiary to evidence more effectively the lien hereof
upon the Fixtures and to perform each and every act and thing requisite and
necessary to be done to accomplish the same.
SECTION 1.13. Additions to Trust Property. All right, title and
interest of Grantor in and to all extensions, improvements, betterments,
renewals, substitutes and replacements of, and all additions and appurtenances
to, the Trust Property hereafter acquired by or released to Grantor or
constructed, assembled or placed by Grantor upon the Premises or the
Improvements, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement
or conversion, as the case may be, and in each such case without any further
mortgage, conveyance, assignment or other act by Grantor, shall become subject
to the lien and security interest of this Deed of Trust as fully and completely
and with the same effect as though now owned by Grantor and specifically
described in the grant of the Trust Property above, but at any and all times
Grantor will execute and deliver to Beneficiary any and all such further
assurances, mortgages, conveyances or assignments thereof as Beneficiary may
reasonably require for the purpose of expressly and specifically subjecting the
same to the lien and security interest of this Deed of Trust.
SECTION 1.14. No Claims Against Trustee or Beneficiary. Nothing
contained in this Deed of Trust shall constitute any consent or request by
Beneficiary (or Trustee), express or implied, for the performance of any labor
or services or the furnishing of any materials or other property in respect of
the Trust Property or any part thereof, nor as giving Grantor any right, power
or authority to contract for or permit the performance of any labor or services
or the furnishing of any materials or other property in such fashion as would
permit the making of any claim against Beneficiary (or Trustee) in respect
thereof.
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SECTION 1.15. Fixture Filing. Certain portions of the Trust Property
are or will become "fixtures" (as that term is defined in the UCC) on the Land,
and this Deed of Trust, upon being filed for record in the real estate records
of the county wherein such fixtures are situated, shall operate also as a
financing statement filed as a fixture filing in accordance with the applicable
provisions of said UCC upon such portions of the Trust Property that are or
become fixtures. The addresses of the Grantor, as debtor, and Beneficiary, as
secured party, are set forth in the first page of this Deed of Trust.
SECTION 1.16. Notice Regarding Special Flood Hazard s. Beneficiary has
informed Grantor, and Grantor hereby acknowledges that it realizes, that the
Premises listed on Exhibit B is in an area identified by the Director of the
Federal Emergency Management Agency as a "special flood hazard area" described
in 12 C.F.R. ss.22.2, and Grantor hereby acknowledges that it has received,
prior to the making of the Senior Loans and the incurrence of indebtedness
constituting part of the Senior Obligations, the notice regarding Federal
disaster relief assistance referred to in the Appendix to 12 C.F.R. Part 22.
ARTICLE II
Defaults and Remedies
SECTION 2.01. Events of Default. Any event of default under the Senior
Credit Agreement (as such term is defined therein, an "Event of Default")
shall constitute an Event of Default under this Deed of Trust.
SECTION 2.02. Demand for Payment. If an Event of Default shall occur
and be continuing, then, without protest, demand or notice of Beneficiary,
Grantor will pay to Beneficiary all amounts due hereunder and under the Senior
Credit Agreement and such further amount as shall be sufficient to cover the
costs and expenses of collection, including attorneys' fees, disbursements and
expenses incurred by Beneficiary, and Beneficiary shall be entitled and
empowered to institute an action or proceedings at law or in equity for the
collection of the sums so due and unpaid, to prosecute any such action or
proceedings to judgment or final decree, to enforce any such judgment or final
decree against Grantor and to collect, in any manner provided by law, all moneys
adjudged or decreed to be payable.
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SECTION 2.03. Rights To Take Possession, Operate and Apply Revenues.
(a) If an Event of Default shall occur and be continuing, Grantor shall, upon
demand of Beneficiary, forthwith surrender to Beneficiary actual possession of
the Trust Property and, if and to the extent not prohibited by applicable law,
Beneficiary itself, or by such officers or agents as it may appoint, may then
enter and take possession of all the Trust Property without the appointment of a
receiver or an application therefor, and exclude Grantor and its agents and
employees wholly therefrom.
(b) If Grantor shall for any reason fail to surrender or deliver the
Trust Property or any part thereof after such demand by Beneficiary, Beneficiary
may to the extent not prohibited by applicable law, obtain a judgment or decree
conferring upon Beneficiary the right to immediate possession or requiring
Grantor to deliver immediate possession of the Trust Property to Beneficiary, to
the entry of which judgment or decree Grantor hereby specifically consents.
Grantor will pay to Beneficiary, upon demand, all reasonable expenses of
obtaining such judgment or decree, including reasonable compensation to
Beneficiary's attorneys and agents with interest thereon at the Default Interest
Rate; and all such expenses and compensation shall, until paid, be secured by
this Deed of Trust.
(c) Upon every such entry or taking of possession, Beneficiary may, to
the extent not prohibited by applicable law, hold, store, use, operate, manage
and control the Trust Property, conduct the business thereof and, from time to
time, (i) make all necessary and proper maintenance, repairs, renewals,
replacements, additions, betterments and improvements thereto and thereon, (ii)
purchase or otherwise acquire additional fixtures, personalty and other
property, (iii) insure or keep the Trust Property insured, (iv) manage and
operate the Trust Property and exercise all the rights and powers of Grantor to
the same extent as Grantor could in its own name or otherwise with respect to
the same, or (v) enter into any and all agreements with respect to the exercise
by others of any of the powers herein granted Beneficiary, all as may from time
to time be directed or determined by Beneficiary to be in its best interest and
Grantor hereby appoints Beneficiary as its true and lawful attorney-in-fact and
agent, for Grantor and in its name, place and stead, in any and all capacities,
to perform any of the foregoing acts. Beneficiary may collect and receive all
the Rents, issues, profits and revenues from the Trust Property, including those
past due as well as those accruing thereafter, and, after deducting (i) all
expenses of taking, holding, managing and operating the Trust Property
(including compensation for the services of
19
all persons employed for such purposes), (ii) the costs of all such maintenance,
repairs, renewals, replacements, additions, betterments, improvements, purchases
and acquisitions, (iii) the costs of insurance, (iv) such taxes, assessments and
other similar charges as Beneficiary may at its option pay, (v) other proper
charges upon the Trust Property or any part thereof and (vi) the compensation,
expenses and disbursements of the attorneys and agents of Beneficiary,
Beneficiary shall apply the remainder of the moneys and proceeds so received as
provided in Section 2.08.
(d) Whenever, before any sale of the Trust Property under Section 2.06,
all Senior Obligations that are then due shall have been paid and all Events of
Default fully cured, Beneficiary will surrender possession of the Trust Property
back to Grantor, its successors or assigns. The same right of taking possession
shall, however, arise again if any subsequent Event of Default shall occur and
be continuing.
SECTION 2.04. Right To Cure Grantor's Failure to Perform. Should
Grantor fail in the payment, performance or observance of any term, covenant or
condition set forth in this Deed of Trust or the Senior Credit Agreement (with
respect to the Trust Property) for 10 days after notice of such failure from
Beneficiary (in the case of a monetary default) or 20 days after notice of such
failure from Beneficiary (in the case of a non-monetary default), Beneficiary
may pay, perform or observe the same, and all payments made or costs or expenses
incurred by Beneficiary in connection therewith shall be secured hereby and
shall be repaid by Grantor to Beneficiary with interest thereon at the Default
Interest Rate from the date incurred within 10 days after demand made by
Beneficiary. Beneficiary shall be the judge using reasonable discretion of the
necessity for any such actions and of the amounts to be paid. Beneficiary is
hereby empowered to enter and to authorize others to enter upon the Premises or
the Improvements or any part thereof for the purpose of performing or observing
any such defaulted term, covenant or condition without having any obligation to
so perform or observe and without thereby becoming liable to Grantor, to any
person in possession holding under Grantor or to any other person.
SECTION 2.05. Right to a Receiver. If an Event of Default shall occur
and be continuing, Beneficiary, upon application to a court of competent
jurisdiction, shall be entitled as a matter of right to the appointment of a
receiver (which may be Beneficiary or an employee of Beneficiary or Trustee) to
take possession of and to operate the Trust Property and to collect and apply
the Rents. The receiver
20
shall have all of the rights and powers permitted under the laws of the state
wherein the Trust Property is located. Grantor shall pay to Beneficiary upon
demand all reasonable expenses, including receiver's fees, reasonable attorney's
fees and disbursements, costs and agent's compensation incurred pursuant to the
provisions of this Section 2.05; and all such expenses shall be secured by this
Deed of Trust and shall be, without demand, immediately repaid by Grantor to
Beneficiary with interest thereon at the Default Interest Rate.
SECTION 2.06. Foreclosure and Sale. (a) If an Event of Default shall
occur and be continuing, Beneficiary may elect to sell the Trust Property or any
part of the Trust Property by exercise of the power of foreclosure or of sale
granted to Beneficiary and/or Trustee by applicable law or this Deed of Trust.
In such case, Beneficiary or Trustee may commence a civil action to foreclose
this Deed of Trust, or it may proceed and sell the Trust Property to satisfy any
Senior Obligation. Trustee or Beneficiary or an officer appointed by a judgment
of foreclosure to sell the Trust Property, may sell all or such parts of the
Trust Property as may be chosen by Trustee or Beneficiary at the time and place
of sale fixed by it in a notice of sale, either as a whole or in separate lots,
parcels or items as Trustee or Beneficiary shall deem expedient, and in such
order as it may determine, at public auction to the highest bidder. Trustee or
Beneficiary or an officer appointed by a judgment of foreclosure to sell the
Trust Property may postpone any foreclosure or other sale of all or any portion
of the Trust Property by public announcement at such time and place of sale,
and from time to time thereafter may postpone such sale by public announcement
or subsequently noticed sale. Without further notice, Trustee or Beneficiary or
an officer appointed to sell the Trust Property may make such sale at the time
fixed by the last postponement, or may, in its discretion, give a new notice of
sale. Any person, including Grantor or Trustee or Beneficiary or any designee or
affiliate thereof, may purchase at such sale.
(b) The Trust Property may be sold subject to unpaid taxes and
Permitted Encumbrances, and, after deducting all costs, fees and expenses of
Trustee or Beneficiary (including costs of evidence of title in connection with
the sale), Trustee or Beneficiary or an officer that makes any sale shall apply
the proceeds of sale in the manner set forth in Section 2.08.
(c) Any foreclosure or other sale of less than the whole of the Trust
Property or any defective or irregular sale made hereunder shall not exhaust the
power of foreclosure or of
21
sale provided for herein; and subsequent sales may be made hereunder until the
Senior Obligations have been satisfied, or the entirety of the Trust Property
has been sold.
(d) If an Event of Default shall occur and be continuing, Beneficiary
may instead of, or in addition to, exercising the rights described in Section
2.06(a) above and either with or without entry or taking possession as herein
permitted, proceed by a suit or suits in law or in equity or by any other
appropriate proceeding or remedy (i) to specifically enforce payment of some or
all of the Senior Obligations, or the performance of any term, covenant,
condition or agreement of this Deed of Trust or any other Senior Loan Document
or any other right, or (ii) to pursue any other remedy available to Beneficiary,
all as Beneficiary shall determine most effectual for such purposes.
SECTION 2.07. Other Remedies. (a) In case an Event of Default shall
occur and be continuing, Beneficiary may also exercise, to the extent not
prohibited by law, any or all of the remedies available to a secured party under
the UCC.
(b) In connection with a sale of the Trust Property or any Fixtures and
the application of the proceeds of sale as provided in Section 2.08, Beneficiary
shall be entitled to enforce payment of and to receive up to the principal
amount of the Senior Obligations, plus all other charges, payments and costs due
under this Deed of Trust, and to recover a deficiency judgment for any portion
of the aggregate principal amount of the Senior Obligations remaining unpaid,
with interest.
SECTION 2.08. Application of Sale Proceeds and Rents. After any
foreclosure sale of all or any portion of the Trust Property, Beneficiary shall
receive and apply the proceeds of the sale together with any Rents that may have
been collected and any other sums that may then be held by Trustee or
Beneficiary under this Deed of Trust as follows:
FIRST, to the payment of the costs and expenses of such sale,
including compensation to Trustee's and Beneficiary's attorneys and
agents, and of any judicial proceedings wherein the same may be made,
and of all expenses, liabilities and advances made or incurred by
Trustee and Beneficiary under this Deed of Trust, together with
interest at the Default Interest Rate on all advances made by Trustee
and Beneficiary, including all taxes, assessments (or other charges)
(except any taxes, assessments or other charges subject to which the
Trust Property shall have been sold) and the cost of
22
removing any liens or encumbrances (except any liens or encumbrances
subject to which the Trust Property was sold);
SECOND, to the Beneficiary for the distribution to the Senior
Secured Parties for the satisfaction of the Senior Obligations owed to
the Senior Secured Parties; and
THIRD, to the holder of any subordinate mortgage, deed of
trust or deed to secure debt encumbering the Trust Property entitled to
receive such proceeds; and
FOURTH, to the Grantor, its successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Beneficiary shall have absolute discretion as to the time of application of
any such proceeds, moneys or balances in accordance with this Deed of Trust. In
the event of any inconsistency between this Section 2.08 and the Collateral
Trust and Intercreditor Agreement, the Collateral Trust and Intercreditor
Agreement shall control. Nothing in this Deed of Trust shall be interpreted to
make the Trustee or Beneficiary an agent of the Second Priority Debt Parties.
Upon any sale of the Trust Property by the Trustee or Beneficiary (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Trustee or Beneficiary or of the officer making the sale
shall be a sufficient discharge to the purchaser or purchasers of the Trust
Property so sold and such purchaser or purchasers shall not be obligated to see
to the application of any part of the purchase money paid over to the Trustee or
Beneficiary or such officer or be answerable in any way for the misapplication
thereof.
SECTION 2.09. Grantor as Tenant Holding Over. If Grantor remains in
possession of any of the Trust Property after any foreclosure sale by Trustee or
Beneficiary, at Beneficiary's election Grantor shall be deemed a tenant holding
over and shall forthwith surrender possession to the purchaser or purchasers at
such sale or be summarily dispossessed or evicted according to provisions of law
applicable to tenants holding over.
SECTION 2.10. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Grantor waives, to the extent not prohibited by law, (i) the
benefit of all laws now existing or that hereafter may be enacted (x) providing
for any appraisement or valuation of any portion of the Trust
23
Property and/or (y) in any way extending the time for the enforcement or the
collection of amounts due under any of the Senior Obligations or creating or
extending a period of redemption from any sale made in collecting said debt or
any other amounts due Beneficiary, (ii) any right to at any time insist upon,
plead, claim or take the benefit or advantage of any law now or hereafter in
force providing for any homestead exemption, stay, statute of limitations,
extension or redemption, or sale of the Trust Property as separate tracts, units
or estates or as a single parcel in the event of foreclosure or notice of
deficiency, and (iii) all rights of redemption, valuation, appraisement, stay of
execution, notice of election to mature or declare due the whole of or each of
the Senior Obligations and marshaling in the event of foreclosure of this Deed
of Trust.
SECTION 2.11. Discontinuance of Proceedings. In case Trustee or
Beneficiary shall proceed to enforce any right, power or remedy under this Deed
of Trust by foreclosure, entry or otherwise, and such proceedings shall be
discontinued or abandoned for any reason, or shall be determined adversely to
Trustee or Beneficiary, then and in every such case Grantor and Trustee and
Beneficiary shall be restored to their former positions and rights hereunder,
and all rights, powers and remedies of Trustee and Beneficiary shall continue as
if no such proceeding had been taken.
SECTION 2.12. Suits To Protect the Trust Property. Beneficiary shall
have power (a) to institute and maintain suits and proceedings to prevent any
impairment of the Trust Property by any acts that may be unlawful or in
violation of this Deed of Trust, (b) to preserve or protect its interest in the
Trust Property and in the Rents arising therefrom and (c) to restrain the
enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of or compliance with such enactment, rule or order would impair
the security or be prejudicial to the interest of Beneficiary hereunder.
SECTION 2.13. Filing Proofs of Claim. In case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Grantor, Beneficiary shall, to the extent permitted
by law, be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have the claims of Beneficiary allowed in
such proceedings for the Senior Obligations secured by this Deed of Trust at the
date of the institution of such proceedings and for any interest accrued, late
charges and additional interest or other amounts
24
due or that may become due and payable hereunder after such date.
SECTION 2.14. Possession by Beneficiary. Notwithstanding the
appointment of any receiver, liquidator or trustee of Grantor, any of its
property or the Trust Property, Beneficiary shall be entitled, to the extent not
prohibited by law, to remain in possession and control of all parts of the Trust
Property now or hereafter granted under this Deed of Trust to Beneficiary in
accordance with the terms hereof and applicable law.
SECTION 2.15. Waiver. (a) No delay or failure by Beneficiary to
exercise any right, power or remedy accruing upon any breach or Event of Default
shall exhaust or impair any such right, power or remedy or be construed to be a
waiver of any such breach or Event of Default or acquiescence therein; and every
right, power and remedy given by this Deed of Trust to Beneficiary may be
exercised from time to time and as often as may be deemed expedient by
Beneficiary. No consent or waiver by Beneficiary to or of any breach or Event of
Default by Grantor in the performance of the Senior Obligations shall be deemed
or construed to be a consent or waiver to or of any other breach or Event of
Default in the performance of the same or of any other Senior Obligations by
Grantor hereunder. No failure on the part of Beneficiary to complain of any act
or failure to act or to declare an Event of Default, irrespective of how long
such failure continues, shall constitute a waiver by Beneficiary of its rights
hereunder or impair any rights, powers or remedies consequent on any future
Event of Default by Grantor.
(b) Even if Beneficiary (i) grants some forbearance or an extension of
time for the payment of any sums secured hereby, (ii) takes other or additional
security for the payment of any sums secured hereby, (iii) waives or does not
exercise some right granted herein or under the Senior Loan Documents, (iv)
releases a part of the Trust Property from this Deed of Trust, (v) agrees to
change some of the terms, covenants, conditions or agreements of any of the
Senior Loan Documents, (vi) consents to the filing of a map, plat or replat
affecting the Premises, (vii) consents to the granting of an easement or other
right affecting the Premises or (viii) makes or consents to an agreement
subordinating Beneficiary's lien on the Trust Property hereunder; no such act or
omission shall preclude Beneficiary from exercising any other right, power or
privilege herein granted or intended to be granted in the event of any breach or
Event of Default then made or of any subsequent default; nor, except as
otherwise expressly provided in an instrument executed by Beneficiary,
25
shall this Deed of Trust be altered thereby. In the event of the sale or
transfer by operation of law or otherwise of all or part of the Trust Property,
Beneficiary is hereby authorized and empowered to deal with any vendee or
transferee with reference to the Trust Property secured hereby, or with
reference to any of the terms, covenants, conditions or agreements hereof, as
fully and to the same extent as it might deal with the original parties hereto
and without in any way releasing or discharging any liabilities, obligations or
undertakings.
SECTION 2.16. Remedies Cumulative. No right, power or remedy conferred
upon or reserved to Trustee or Beneficiary by this Deed of Trust is intended to
be exclusive of any other right, power or remedy, and each and every such right,
power and remedy shall be cumulative and concurrent and in addition to any other
right, power and remedy given hereunder or now or hereafter existing at law or
in equity or by statute.
ARTICLE III
Miscellaneous
SECTION 3.01. Partial Invalidity. In the event any one or more of the
provisions contained in this Deed of Trust shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such validity, illegality or
unenforceability shall, at the option of Beneficiary, not affect any other
provision of this Deed of Trust, and this Deed of Trust shall be construed as if
such invalid, illegal or unenforceable provision had never been contained herein
or therein.
SECTION 3.02. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and given to Grantor in accordance
with the terms of the Senior Credit Agreement at the address set forth on the
first page of this Deed of Trust and to the Beneficiary as provided in the
Senior Credit Agreement.
SECTION 3.03. Successors and Assigns. All of the grants, covenants,
terms, provisions and conditions herein shall run with the Premises and the
Improvements and shall apply to, bind and inure to, the benefit of the permitted
successors and assigns of Grantor and the successors and assigns of Beneficiary.
SECTION 3.04. Satisfaction and Cancelation. (a) The conveyance to
Trustee or Beneficiary of the Trust Property as
26
security created and consummated by this Deed of Trust shall be null and void
when all the Senior Obligations have been indefeasibly paid in full in
accordance with the terms of the Senior Loan Documents and the Banks have no
further commitment to make Senior Loans under the Senior Credit Agreement, no
Letters of Credit are outstanding and the Issuing Bank has no further obligation
to issue Letters of Credit under the Senior Credit Agreement.
(b) Upon a sale or financing by Grantor of all or any portion of the
Trust Property that is permitted by the Senior Credit Agreement and the
application of the Net Proceeds of such sale or financing in accordance with the
Senior Credit Agreement, the lien of this Deed of Trust shall be released from
the applicable portion of the Trust Property. Grantor shall give the Beneficiary
reasonable written notice of any sale or financing of the Trust Property prior
to the closing of such sale or financing.
(c) In connection with any termination or release pursuant to paragraph
(a), the Deed of Trust shall be marked "satisfied" by the Beneficiary, and this
Deed of Trust shall be canceled of record at the request and at the expense of
the Grantor. Beneficiary shall execute any documents reasonably requested by
Grantor to accomplish the foregoing or to accomplish any release contemplated by
this Section 3.04 and Grantor will pay all costs and expenses, including
reasonable attorneys' fees, disbursements and other charges, incurred by
Beneficiary in connection with the preparation and execution of such documents.
SECTION 3.05. Definitions. As used in this Deed of Trust, the singular
shall include the plural as the context requires and the following words and
phrases shall have the following meanings: (a) "including" shall mean
"including but not limited to"; (b) "provisions" shall mean "provisions,
terms, covenants and/or conditions"; (c) "lien" shall mean "lien, charge,
encumbrance, security interest, mortgage or deed of trust"; (d) "obligation"
shall mean "obligation, duty, covenant and/or condition"; (e) "Trustee" shall
mean "Trustee, for the benefit of the Beneficiary and in accordance with the
Credit Agreement,"; and (f) "any of the Trust Property" shall mean "the Trust
Property or any part thereof or interest therein". Any act that Trustee or
Beneficiary is permitted to perform hereunder may be performed at any time and
from time to time by Trustee or Beneficiary or any person or entity designated
by Beneficiary. Any act that is prohibited to Grantor hereunder is also
prohibited to all lessees of any of the Trust Property, except to the extent
that a Lease executed prior to the date hereof expressly permits such act
without
27
the consent of the Grantor or the holder of any mortgage. Each appointment of
Beneficiary as attorney-in-fact for Grantor under this Deed of Trust is
irrevocable, with power of substitution and coupled with an interest. Subject to
the express provisions to the contrary contained in this Deed of Trust,
Beneficiary has the right to refuse to grant its consent, approval or acceptance
or to indicate its satisfaction, in its sole discretion, whenever such
consent, approval, acceptance or satisfaction is required hereunder. To the
extent that this Deed of Trust provides that any particular consent, approval,
acceptance or satisfaction is subject to the terms of the Senior Credit
Agreement, it shall be granted or withheld as provided in the Senior Credit
Agreement.
SECTION 3.06. Multisite Real Estate Transaction. Grantor acknowledges
that this Deed of Trust is one of a number of Other Mortgages that secure the
Senior Obligations. Grantor agrees that the lien of this Deed of Trust shall be
absolute and unconditional and shall not in any manner be affected or impaired
by any acts or omissions whatsoever of Beneficiary, and without limiting the
generality of the foregoing, the lien hereof shall not be impaired by any
acceptance by the Beneficiary of any security for or guarantees of any of the
Senior Obligations hereby secured, or by any failure, neglect or omission on the
part of Beneficiary to realize upon or protect any Senior Obligation or
indebtedness hereby secured or any collateral security therefor including the
Other Mortgages and other Senior Loan Documents. The lien hereof shall not in
any manner be impaired or affected by any release (except as to the property
released), sale, pledge, surrender, compromise, settlement, renewal, extension,
indulgence, alteration, changing, modification or disposition of any of the
Senior Obligations secured or of any of the collateral security therefor,
including the Other Mortgages and other Senior Loan Documents or of any
guarantee thereof, and Beneficiary may at its discretion foreclose, exercise any
power of sale, or exercise any other remedy available to it under any or all of
the Other Mortgages and other Senior Loan Documents without first exercising or
enforcing any of its rights and remedies hereunder. Such exercise of
Beneficiary's rights and remedies under any or all of the Other Mortgages and
other Senior Loan Documents shall not in any manner impair the indebtedness
hereby secured or the lien of this Deed of Trust and any exercise of the rights
or remedies of Beneficiary hereunder shall not impair the lien of any of the
Other Mortgages and other Senior Loan Documents or any of Beneficiary's rights
and remedies thereunder. Grantor specifically consents and agrees that
Beneficiary may exercise its rights and remedies hereunder and under the Other
28
Mortgages and other Senior Loan Documents separately or concurrently and in any
order that it may deem appropriate and waives any rights of subrogation.
ARTICLE IV
Particular Provisions
This Deed of Trust is subject to the following provisions relating to
the particular laws of the state wherein the Premises are located:
SECTION 4.01. Applicable Law; Certain Particular Provisions. This Deed
of Trust shall be governed by and construed in accordance with the internal law
of the State in which the Trust Property is located without regard to principles
of conflicts of laws and Grantor and Beneficiary agree to submit to jurisdiction
and the laying of venue for any suit on this Deed of Trust in such state, except
that the internal laws of the State of New York (without regard to principles of
conflicts of laws) shall govern (i) those terms and conditions contained in the
Senior Credit Agreement and/or the Senior Subsidiary Guarantee Agreement which
are incorporated by reference herein and (ii) the resolution of issues arising
under the Senior Credit Agreement and/or the Senior Subsidiary Guarantee
Agreement to the extent that such resolution is necessary to the interpretation
of this Deed of Trust. The terms and provisions set forth in Appendix A attached
hereto are hereby incorporated by reference as though fully set forth herein. In
the event of any conflict between the terms and provisions contained in the body
of this Deed of Trust and the terms and provisions set forth in Appendix A, the
terms and provisions set forth in Appendix A shall govern and control.
SECTION 4.02 Trustee's Powers and Liabilities. (a) Trustee, by
acceptance hereof, covenants faithfully to perform and fulfill the trusts herein
created, being liable, however, only for gross negligence, bad faith or wilful
misconduct, and hereby waives any statutory fee and agrees to accept reasonable
compensation, in lieu thereof, for any services rendered by it in accordance
with the terms hereof. All authorities, powers and discretions given in this
Deed of Trust to Trustee and/or Beneficiary may be exercised by either, without
the other, with the same effect as if exercised jointly.
(b) Trustee may resign at any time upon giving 30 days' notice in
writing to Grantor and to Beneficiary.
29
(c) Beneficiary may remove Trustee at any time or from time to time and
select a successor trustee. In the event of the death, removal, resignation,
refusal to act, inability to act or absence of Trustee from the state in which
the premises are located, or in its sole discretion for any reason whatsoever,
Beneficiary may, upon notice to the Grantor and without specifying the reason
therefor and without applying to any court, select and appoint a successor
trustee, and all powers, rights, duties and authority of the former trustee, as
aforesaid, shall thereupon become vested in such successor. Such substitute
trustee shall not be required to give bond for the faithful performance of his
duties unless required by Beneficiary. Such substitute trustee shall be
appointed by written instrument duly recorded in the county where the Land is
located. Grantor hereby ratifies and confirms any and all acts that the herein
named Trustee, or his successor or successors in this trust, shall do lawfully
by virtue hereof. Grantor hereby agrees, on behalf of itself and its heirs,
executors, administrators and assigns, that the recitals contained in any deed
or deeds executed in due form by any Trustee or substitute trustee, acting under
the provisions of this instrument, shall be prima facie evidence of the facts
recited, and that it shall not be necessary to prove in any court, otherwise
than by such recitals, the existence of the facts essential to authorize the
execution and delivery of such deed or deeds and the passing of title thereby.
(d) Trustee shall not be required to see that this Deed of Trust is
recorded, nor liable for its validity or its priority as a first deed of trust,
or otherwise, nor shall Trustee be answerable or responsible for performance or
observance of the covenants and agreements imposed upon Grantor or Beneficiary
by this Deed of Trust or any other agreement. Trustee, as well as Beneficiary,
shall have authority in their respective discretion to employ agents and
attorneys in the execution of this trust and to protect the interest of the
Beneficiary hereunder, and to the extent permitted by law they shall be
compensated and all expenses relating to the employment of such agents and/or
attorneys, including expenses of litigations, shall be paid out of the proceeds
of the sale of the Trust Property conveyed hereby should a sale be had, but if
no such sale be had, all sums so paid out shall be recoverable to the extent
permitted by law by all remedies at law or in equity.
(e) At any time, or from time to time, without liability therefor and
with 10 days' prior written notice to Grantor, upon written request of
Beneficiary and without affecting the effect of this Deed of Trust upon the
remainder of the Trust Property, Trustee may (i) reconvey any part of the Trust
30
Property, (ii) consent in writing to the making of any map or plat thereof, so
long as Grantor has consented thereto, (iii) join in granting any easement
thereon, so long as Grantor has consented thereto, or (iv) join in any extension
agreement or any agreement subordinating the lien or charge hereof.
[The balance of this page intentionally left blank.]
31
IN WITNESS WHEREOF, this Deed of Trust has been duly authorized and has
been executed and delivered by Grantor on the date first written above.
THRIFTY PAYLESS, INC., a
California corporation
by: _________________________
Name:
Title:
Attest:
by: ____________________________
Name:
Title:
32
[NEED LOCAL FORM OF ACKNOWLEDGMENT]
Exhibit A
to Deed of Trust
Description of Land
All that real property situated in the County of Yolo, State of California,
described as follows:
PARCEL ONE:
That portion of the Northwest 1/4 of Section 27, Township 10 North, Range 2
East, M.D.B. & M., according to the official plat thereof, lying Easterly of the
following described line:
Beginning at a point on the North line of said Northwest 1/4, distant thereon
South 89(degrees) 53' 36" East 990.00 feet from the Northwest corner of said
Northwest 1/4; running thence South 0(degrees) 23' 45" West, parallel with the
West line of said Section 27, 2640 feet, more or less, to the South line of said
Northwest 1/4 of Section 27.
Excepting therefrom, that portion thereof lying Easterly of the following
described line:
Beginning at a point on the North line of said Northwest 1/4, distant thereon
North 89(degrees) 53' 36" West 476.80 feet from the Northeast corner of said
Northwest 1/4; running thence South 0(degrees) 25' 11" West 2642.78 feet to the
South line of said Northwest 1/4 of Section 27.
PARCEL TWO:
A right of way for road purposes, described as follows:
Beginning at a point on the North line of Section 27, Township 10 North, Range 2
East, M.D.B. & M., according to the official plat thereof, distant South
89(degrees) 53' 36" East 990 feet from the Northwest corner of said Section 27;
running thence South 0(degrees) 23' 45" West, parallel with the West line of
said Section 27, 1300 feet; thence North 89(degrees) 53' 36" West 30 feet;
thence North 0(degrees) 23' 45" East 1300 feet to a point on the North line of
said Section 27; thence South 89(degrees) 53' 36" East 30 feet to the point of
beginning.
Street Address:
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Exhibit B to
Deed of Trust
Premises Located in a
Special Flood Hazard Area
None.
Appendix A
to Deed of Trust
Local Law Provisions
Appendix B
to Deed of Trust
Definitions Annex
