EXHIBIT 4.18
DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES
AND SECURITY AGREEMENT
from
REVLON CONSUMER PRODUCTS CORPORATION,
Grantor
to
FIRST AMERICAN TITLE INSURANCE COMPANY,
Trustee
for the use and benefit of
WILMINGTON TRUST COMPANY, AS COLLATERAL AGENT
for holders of the Note Obligations,
Beneficiary
(COLLATERAL IS OR INCLUDES FIXTURES)
DATED AS OF NOVEMBER 30, 2001
This Deed of Trust has been prepared by and
after recording, please return to:
Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇, Esq.
North Carolina
(COLLATERAL IS OR INCLUDES FIXTURES)
DEED OF TRUST, ASSIGNMENT OF RENTS
AND LEASES AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES AND
SECURITY AGREEMENT, dated as of November 30, 2001, is made by Revlon Consumer
Products Corporation, a Delaware corporation ("Grantor"), whose address is c/o
Revlon, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Vice
President and Deputy General Counsel, to First American Title Insurance Company,
a North Carolina corporation ("Trustee"), whose address is ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, for the use and benefit of
Wilmington Trust Company, whose address is ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as collateral agent for holders of the Note
Obligations (in such capacity, "Beneficiary", which term shall be deemed to
include the successors and assigns of Beneficiary). References to this "Deed of
Trust" shall mean this instrument and any and all renewals, modifications,
amendments, supplements, extensions, consolidations, substitutions, spreaders
and replacements of this instrument.
Background
Grantor and Beneficiary, as trustee (in such capacity, the
"Indenture Trustee"), are parties to the Indenture dated November 26, 2001 (as
amended, supplemented or otherwise modified from time to time, the "Indenture")
among the Grantor, the Guarantors identified on the signature pages thereto and
the Trustee, providing for the issuance of Grantor's 12% Senior Secured Notes
Due 2005 (the "Notes"); and
A. Grantor is party to the Second Amended and Restated Credit
Agreement dated as of the date hereof (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Grantor, the local
borrowing subsidiaries party thereto, the financial institutions party thereto,
JPMorgan Chase Bank ("Chase"), as administrative agent (in such capacity, the
"Bank Agent"), the other agents party thereto and the arranger party thereto;
and
B. (i) To secure the Bank Obligations (as defined in the
Collateral Agency Agreement referred to herein), Grantor has granted to the
Administrative Agent (as defined in the Collateral Agency Agreement), for the
benefit of the holders of the Bank Obligations, a first priority security
interest in the Trust Property (the "First Deed Lien"), and (ii) to secure the
Note Obligations (as defined in the Collateral Agency Agreement), the Grantor
now intends hereby to grant to Beneficiary, for the benefit of the holders of
the Note Obligations (as defined in the Collateral Agency Agreement), a second
priority security interest in the Trust Property (it being understood that the
relative rights and priorities of the grantees in respect of the Trust Property
are governed by the Collateral Agency Agreement); and
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C. Grantor (i) is the owner of the fee simple estate in the
parcel(s) of real property described on Schedule A attached hereto (the "Land")
and (ii) owns the buildings, improvements, structures and fixtures now or
subsequently located on the Land (the "Improvements"; the Land and the
Improvements being collectively referred to as the "Real Estate").
Granting Clauses
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees that to secure the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Note Obligations;
GRANTOR HEREBY CONVEYS TO TRUSTEE AND HEREBY GRANTS, ASSIGNS, TRANSFERS AND SETS
OVER TO TRUSTEE, IN TRUST WITH POWER OF SALE FOR THE USE AND BENEFIT OF
BENEFICIARY, AND GRANTS BENEFICIARY AND TRUSTEE A SECURITY INTEREST IN:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever
of Grantor, in possession or expectancy, in and to the Real Estate or any part
thereof;
(C) all right, title and interest of Grantor in, to and under
all easements, rights of way, gores of land, streets, ways, alleys, passages,
sewer rights, waters, water courses, water and riparian rights, development
rights, air rights, mineral rights and all estates, rights, titles, interests,
privileges, licenses, tenements, hereditaments and appurtenances belonging,
relating or appertaining to the Real Estate, and any reversions, remainders,
rents, issues, profits and revenue thereof and all land lying in the bed of any
street, road or avenue, in front of or adjoining the Real Estate to the center
line thereof;
(D) all of the fixtures, chattels, business machines,
machinery, apparatus, equipment, furnishings, fittings and articles of personal
property of every kind and nature whatsoever, and all appurtenances and
additions thereto and substitutions or replacements thereof (together with, in
each case, attachments, components, parts and accessories) currently owned or
subsequently acquired by Grantor and now or subsequently attached to, or
contained in or used in any way in connection with any operation or letting of
the Real Estate, including but without limiting the generality of the foregoing,
all screens, awnings, shades, blinds, curtains, draperies, artwork, carpets,
rugs, storm doors and windows, furniture and furnishings, heating, electrical,
and mechanical equipment, lighting, switchboards, plumbing, ventilating, air
conditioning and air-cooling apparatus, refrigerating, and incinerating
equipment, escalators, elevators, loading and unloading equipment and systems,
stoves, ranges, laundry equipment, cleaning systems (including window cleaning
apparatus), telephones, communication systems (including satellite dishes and
antennae), sprinkler systems, televisions, computers, and other fire prevention
and extinguishing apparatus and materials, security systems, motors, engines,
machinery, pipes, pumps, tanks, conduits, appliances, fittings and fixtures of
every kind and description (all of the foregoing in this paragraph (D) being
referred to as the "Equipment");
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(E) all right, title and interest of Grantor in and to all
substitutes and replacements of, and all additions and improvements to, the Real
Estate and the Equipment, subsequently acquired by or released to Grantor or
constructed, assembled or placed by Grantor on the Real Estate, immediately upon
such acquisition, release, construction, assembling or placement, including,
without limitation, any and all building materials whether stored at the Real
Estate or offsite, and, in each such case, without any further mortgage,
conveyance, assignment or other act by Grantor;
(F) all right, title and interest of Grantor in, to and under
all leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or occupancy of
the Real Estate or the Equipment or any part thereof, now existing or
subsequently entered into by Grantor and whether written or oral and all
guarantees of any of the foregoing (collectively, as any of the foregoing may be
amended, restated, extended, renewed or modified from time to time, the
"Leases") and all rights of Grantor in respect of cash and securities deposited
thereunder and the right to receive and collect the revenues, income, rents,
issues and profits thereof, together with all other rents and royalties arising
from the use and enjoyment of the Trust Property (hereinafter defined)
(collectively, the "Rents");
(G) all books and records relating to or used in connection
with the operation of the Real Estate or the Equipment or any part thereof;
(H) all unearned premiums under insurance policies now or
subsequently obtained by Grantor relating to the Real Estate or Equipment and
Grantor's interest in and to all proceeds of any such insurance policies
(including title insurance policies) including the right to collect and receive
such proceeds, subject to the provisions relating to insurance generally set
forth below; and all awards and other compensation, including the interest
payable thereon and the right to collect and receive the same, made to the
present or any subsequent owner of the Real Estate or Equipment for the taking
by eminent domain, condemnation or otherwise, of all or any part of the Real
Estate or any easement or other right therein;
(I) all right, title and interest of Grantor in and to (i) all
contracts from time to time executed by Grantor or any manager or agent on its
behalf relating to the ownership, construction, maintenance, repair, operation
or occupancy of the Real Estate or Equipment or any part thereof, or to the sale
or financing of the Real Estate or any part thereof, and all agreements relating
to the purchase or lease of any portion of the Real Estate or any property which
is adjacent or peripheral to the Real Estate, together with the right to
exercise such options and all leases of Equipment (collectively, the
"Contracts"), (ii) all consents, licenses, building permits, certificates of
occupancy and other governmental approvals relating to construction, completion,
occupancy, use or operation of the Real Estate or any part thereof
(collectively, the "Permits") and (iii) all drawings, plans, specifications and
similar or related items relating to the Real Estate (collectively, the
"Plans");
(J) any and all monies now or subsequently on deposit for the
payment of real estate taxes or special assessments against the Real Estate or
for the payment of premiums on insurance policies covering the foregoing
property or otherwise on deposit with or held by Beneficiary as provided in this
Deed of Trust;
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(K) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now
owned or held or subsequently acquired by Grantor and described in the foregoing
clauses (A) through (E) are collectively referred to as the "Premises", and
those described in the foregoing clauses (A) through (K) are collectively
referred to as the "Trust Property").
TO HAVE AND TO HOLD the Trust Property and the rights and
privileges hereby granted unto Beneficiary, its successors and assigns for the
uses and purposes set forth, until the Note Obligations are paid and performed
in full.
Collateral Agency Agreement Controls; Priority
Notwithstanding anything to the contrary contained in this
Deed of Trust but subject to the next sentence of this paragraph, all of the
rights and obligations of the parties hereto set forth herein are subject to the
terms of the Collateral Agency Agreement, which shall be controlling. Without
limiting the generality of the foregoing, the rights of Beneficiary and the
holders of the Note Obligations set forth herein relating to (i) the release of
or realization upon Trust Property that is subject to Liens granted under the
First Lien Documents, (ii) amendments to or waivers in respect of this Deed of
Trust or any other Note Obligation Document, (iii) the exercise of remedies with
respect to Trust Property that is subject to Liens granted under the First Lien
Documents, (iv) the right to receive, hold and apply Proceeds that are subject
to Liens granted under the First Lien Documents and (v) all other matters
addressed herein are granted subject to, and shall be exercised in accordance
with, the terms of the Collateral Agency Agreement. The terms of this paragraph
shall not prevent Beneficiary from taking such actions or reasonably requesting
the Grantor to take such actions as are necessary to perfect or maintain the
perfection of Beneficiary's security interest in the Trust Property, nor shall
such terms mitigate the Grantor's obligations hereunder to take such actions,
provide such information and deliver such documents, instruments and
certificates as may be necessary to perfect or maintain the perfection of such
security interest. Notwithstanding anything to the contrary contained in this
Deed of Trust, all proceeds of the Trust Property, including without limitation
insurance proceeds, received by the Controlling Collateral Agent pursuant to the
provisions of this Deed of Trust shall be held and applied by the Collateral
Agent in accordance with the provisions of the Collateral Agency Agreement. This
Deed of Trust shall constitute a second deed of trust. The security interest
granted pursuant to this Deed of Trust shall constitute a second priority
security interest in the Trust Property in favor of Beneficiary for the benefit
of the holders of the Note Obligations.
Definitions
(a) The following terms shall have the following
meanings:
"Actionable Event": as defined in the Collateral
Agency Agreement.
"Administrative Agent": as defined in the Collateral
Agency Agreement.
"Bank Agent": as defined in the Recitals hereto.
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"Bank Obligations": as defined in the Collateral
Agency Agreement.
"Beneficiary": Wilmington Trust Company and any
successors thereof appointed in accordance with the terms of the
Collateral Agency Agreement, in each case as collateral agent for the
holders of the Note Obligations.
"Code": as defined in Section 21(a).
"Collateral Account": as defined in the Collateral
Agency Agreement.
"Collateral Agency Agreement": the Amended and
Restated Collateral Agency Agreement, dated as of May 30, 1997 and as
further amended and restated as of the date hereof, among the Grantor,
the Bank Agent, the Administrative Agent, the Indenture Trustee and
Beneficiary, as the same may be amended, supplemented or otherwise
modified from time to time.
"Controlling Collateral Agent": at all times prior to
the First Deed Lien Termination Date, the Administrative Agent and,
thereafter, Beneficiary.
"Deed of Trust": this Deed of Trust, as the same may
be amended, modified or otherwise supplemented from time to time.
"Default Rate": as defined in Exhibit A to the
Indenture.
"First Deed Lien": as defined in the recitals hereto.
"First Deed Lien Termination Date": either (a) the
date on which the First Deed Lien is released in accordance with the
terms of the Collateral Agency Agreement or (b) the date on which all
Bank Obligations are Fully Satisfied (as defined in the Collateral
Agency Agreement), whichever shall first occur; provided, however, that
if a First Lien Termination Date is deemed not to have occurred under
Section 5.2(f) of the Collateral Agency Agreement, any First Deed Lien
Termination Date that has occurred shall likewise be deemed not to have
occurred, and such event shall be governed by the terms and provisions
of Section 5.2(f) of the Collateral Agency Agreement.
"First Lien Documents": as defined in the Collateral
Agency Agreement.
"First Lien Termination Date": as defined in the
Collateral Agency Agreement.
"Governmental Authority": as defined in Section 3
hereof.
"Legal Requirement": as defined in Section 3 hereof.
"Liens": as defined in the Indenture.
"Material Adverse Effect": a material adverse effect
upon (i) the business, condition (financial or otherwise), operations,
performance, properties or
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prospects of (A) Revlon, Inc. or (B) the Grantor and its Subsidiaries
taken as a whole or (ii) the ability of Grantor and its Subsidiaries
taken as a whole to perform the obligations of Grantor under the Note
Obligation Documents.
"Note Obligation Documents": as defined in the
Collateral Agency Agreement.
"Note Obligations": as defined in the Collateral
Agency Agreement.
"Notice of an Actionable Event": as defined in the
Collateral Agency Agreement.
"Permitted Liens": as defined in the Indenture.
"Person": as defined in the Indenture.
"Requirement of Law": the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of a Grantor, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon a Grantor or any
of its material property or to which such Grantor or any of its
material property is subject.
"Secured Obligations": as defined in the Collateral
Agency Agreement.
"Subsidiary": as defined in the Indenture.
"Trust Property": as defined in the Granting Clauses.
(b) Other Definitional Provisions. (i) The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this Deed of
Trust shall refer to this Deed of Trust as a whole and not to any particular
provision of this Deed of Trust, and section and paragraph references are to
this Deed of Trust unless otherwise specified.
(ii) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
Terms and Conditions
Grantor further represents, warrants, covenants and agrees
with Trustee and Beneficiary as follows:
1. Warranty of Title. Grantor warrants that Grantor has good,
marketable title to the Real Estate in fee simple and good title to the rest of
the Trust Property, subject only to the matters that are set forth in Schedule B
of the title insurance policy or policies being issued to Beneficiary to insure
the lien of this Deed of Trust (the "Permitted Exceptions") and to Permitted
Liens and Grantor shall warrant, defend and preserve such title and the rights
granted by this Deed of Trust with respect thereto against all claims of all
persons and entities. Grantor further warrants that it has the right to grant
this Deed of Trust.
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2. Payment of Note Obligations. Grantor shall pay and perform
the Note Obligations.
3. Requirements. (a) Grantor shall promptly comply with, or
cause to be complied with, and conform to all present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements, and irrespective of the nature of the work to be done, of each of
the United States of America, any State and any municipality, local government
or other political subdivision thereof and any agency, department, bureau,
board, commission or other instrumentality of any of them, now existing or
subsequently created (collectively, "Governmental Authority") which has
jurisdiction over the Trust Property and all covenants, restrictions and
conditions now or later of record, in each of the foregoing cases which may be
applicable to any of the Trust Property, or to the use, manner of use,
occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of any of the Trust Property. All present and future laws,
statutes, codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements of every Governmental Authority applicable to Grantor or to any of
the Trust Property and all covenants, restrictions, and conditions which now or
later may be applicable to any of the Trust Property are collectively referred
to as the "Legal Requirements". Grantor shall have the right, at Grantor's sole
cost and expense, to contest or object to the validity of any Legal Requirements
by appropriate legal proceedings, but such right shall not be deemed or
construed in any way as relieving, modifying or extending Grantor's covenants to
comply therewith as provided in this Section 3(a), provided, that Grantor has
given prior written notice to Beneficiary of Grantor's intent so to contest and
provided, further that, (i) Grantor shall demonstrate to the Controlling
Collateral Agent's reasonable satisfaction that the legal proceedings shall
operate conclusively to prevent the sale or forfeiture of the Trust Property, or
any part thereof, for failure to comply with such Legal Requirements prior to
final determination of such proceedings; (ii) if during such contest a lien or
cloud of title shall exist with respect to any of the Trust Property, Grantor
shall provide the Controlling Collateral Agent with good and sufficient bond or
other security reasonably satisfactory to the Controlling Collateral Agent in an
amount equal to the aforesaid lien or cloud of title, or if the amount thereof
is uncertain, in an amount reasonably satisfactory to the Controlling Collateral
Agent, and (iii) Beneficiary shall not be subject either to civil or criminal
liability for any failure by Beneficiary to comply with such Legal Requirements
during the pendency of such contest.
(b) From and after the date of this Deed of Trust, Grantor
shall not by act or omission permit any building or other improvement on any
premises not subject to this Deed of Trust to rely on the Premises or any part
thereof or any interest therein to fulfill any Legal Requirement, and Grantor
hereby assigns to the Controlling Collateral Agent any and all rights to give
consent for all or any portion of the Premises or any interest therein to be so
used. Grantor shall not by act or omission impair the integrity of any of the
Real Estate as a parcel separate and apart from all other premises. Grantor
represents that each parcel of the Real Estate constitutes a legal lot, in
compliance with all subdivision laws and similar Legal Requirements. Any act or
omission by Grantor which would result in a violation of any of the provisions
of this subsection shall be void.
4. Payment of Taxes and Other Impositions. (a) Promptly when
due, Grantor shall pay and discharge all taxes relating to the ownership and use
of the Real Estate (including, without limitation, all real and personal
property, transfer and gains taxes), all charges for any
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easement or agreement maintained for the benefit of any of the Trust Property,
all general and special assessments, levies, permits, inspection and license
fees, all water and sewer rents and charges and all other public charges even if
unforeseen or extraordinary, imposed upon or assessed against or which may
become a lien on any of the Trust Property, or arising in respect of the
occupancy, use or possession thereof, together with any penalties or interest on
any of the foregoing (all of the foregoing are collectively referred to as the
"Impositions"). Upon request by Beneficiary, Grantor shall deliver to
Beneficiary (i) original or copies of receipted bills and cancelled checks
evidencing payment of such Imposition if it is a real estate tax or other public
charge and (ii) evidence reasonably acceptable to Beneficiary showing the
payment of any other such Imposition. If by law any Imposition, at Grantor's
option, may be paid in installments (whether or not interest shall accrue on the
unpaid balance of such Imposition), Grantor may elect to pay such Imposition in
such installments and shall be responsible for the payment of such installments
with interest, if any.
(b) Except as set forth in paragraph (d) below, nothing herein
shall affect any right or remedy of the Trustee or Beneficiary under this Deed
of Trust or otherwise, without notice or demand to Grantor, to pay any
Imposition after the date such Imposition (or installments thereof, if Grantor
elected to pay in installments as above provided) shall have become due, and to
add to the Note Obligations the amount so paid, together with interest from the
time of payment at the Default Rate. Any sums paid by Beneficiary in discharge
of any Impositions shall be (i) a charge on the Premises secured hereby prior to
any right or title to, interest in, or claim upon the Premises subordinate to
the lien of this Deed of Trust, and (ii) payable on demand by Grantor to
Beneficiary, together with interest at the Default Rate as set forth above.
(c) Grantor shall not claim, demand or be entitled to receive
any credit or credits toward the satisfaction of this Deed of Trust or on any
interest payable thereon for any taxes assessed against the Trust Property or
any part thereof, and shall not claim any deduction from the taxable value of
the Trust Property by reason of this Deed of Trust.
(d) Subject to the terms of the Indenture, Grantor shall have
the right before any delinquency occurs to contest or object in good faith to
the amount or validity of any Imposition by appropriate legal proceedings, but
such right shall not be deemed or construed in any way as relieving, modifying,
or extending Grantor's covenant to pay any such Imposition at the time and in
the manner provided in this Section unless (x) (i) Grantor has given prior
written notice to the Controlling Collateral Agent of Grantor's intent so to
contest or object to an Imposition, (ii) Grantor shall demonstrate to the
Controlling Collateral Agent's reasonable satisfaction that the legal
proceedings shall operate conclusively to prevent the sale of the Trust
Property, or any part thereof, to satisfy such Imposition prior to final
determination of such proceedings and (iii) Grantor shall furnish a good and
sufficient bond or surety or other security reasonably satisfactory to the
Controlling Collateral Agent in the amount of the Impositions which are being
contested plus any interest and penalty which may be imposed thereon and which
could become a charge against the Real Estate or any part of the Trust Property
or (y) such Imposition is of a type that is permitted under subsection 4.04 of
the Indenture.
(e) At any time after a Notice of an Actionable Event has been
given and remains outstanding, the Controlling Collateral Agent shall be
entitled to require Grantor to pay
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monthly in advance to the Controlling Collateral Agent, on behalf of the holders
of the Secured Obligations (or, if Beneficiary is the Controlling Collateral
Agent, the Note Obligations), the equivalent of 1/12th of the estimated annual
Impositions. The Controlling Collateral Agent may commingle such funds with its
own funds and Grantor shall not be entitled to interest thereon.
5. Insurance. (a) Grantor shall maintain or cause to be
maintained on all of the Premises:
(i) property insurance against loss or damage by fire,
lightning, windstorm, hail, water damage, earthquake and by such other
further risks and hazards as now are or subsequently may be covered by
an "all risk" policy or a fire policy covering "special" causes of loss
commonly maintained by businesses similar to Grantor. Grantor shall use
its best efforts to obtain building ordinance law endorsements in the
policy. The policy limits shall be automatically reinstated after each
loss except for such coverages, as flood or earthquake, which are
sublimited;
(ii) comprehensive general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language of such endorsement), covering all claims for personal injury,
bodily injury or death, or property damage occurring on, in or about
the Premises in an amount not less than $10,000,000 combined single
limit with respect to personal injury and property damage relating to
any one occurrence plus such excess limits as the Controlling
Collateral Agent shall reasonably request from time to time;
(iii) when and to the extent reasonably required by the
Controlling Collateral Agent, insurance against loss or damage by any
other risk commonly insured against by persons occupying or using like
properties in the locality or localities in which the Real Estate is
situated;
(iv) insurance against business interruption, if applicable,
in amounts reasonably satisfactory to the Controlling Collateral Agent;
(v) during the course of any construction or repair of
Improvements, comprehensive general liability insurance (including
coverage for elevators and escalators, if any) under a policy including
the "broad form CGL endorsement" (or which incorporates the language of
such endorsement). The policy shall include coverage for independent
contractors and completed operations. The completed operations coverage
shall stay in effect for two years after construction of any
Improvements has been completed. The policy shall provide coverage on
an occurrence basis against claims for personal injury, including,
without limitation, bodily injury, death or property damage occurring
on, in or about the Premises and the adjoining streets, sidewalks and
passageways, such insurance to afford immediate minimum protection to a
combined single limit of not less than $10,000,000 with respect to
personal injury, bodily injury or death to any one or more persons or
damage to property;
(vi) during the course of any construction or repair of the
Improvements, workers' compensation insurance (including employer's
liability insurance) for all
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employees of Grantor engaged on or with respect to the Premises in such
amounts as are established by law;
(vii) during the course of any construction, addition,
alteration or repair of the Improvements, builder's risk completed
value form insurance or other insurance providing the same coverage
against "all risks of physical loss," including collapse, water damage,
flood and earthquake and transit coverage, during construction or
repairs of the Improvements, with deductible reasonably approved by the
Controlling Collateral Agent, covering the total value of work
performed and equipment, supplies and materials furnished (with an
appropriate limit for soft costs in the case of construction);
(viii) boiler and machinery property insurance covering
pressure vessels, air tanks, boilers, machinery, pressure piping,
heating, air conditioning and elevator equipment and escalator
equipment, provided the Improvements contain equipment of such nature
in such amounts as are normal and usual for a business of similar size
and complexity as Grantor;
(ix) if any portion of the Premises are located in an area
identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, flood insurance in an
amount which is available and reasonably satisfactory to the
Controlling Collateral Agent, but in no event less than the maximum
limit of coverage available under the National Flood Insurance Act of
1968, as amended; and
(x) such other insurance in such amounts as the Controlling
Collateral Agent may reasonably request from time to time.
Each insurance policy (other than flood insurance written under the National
Flood Insurance Act of 1968, as amended, in which case to the extent available)
shall (i) provide that it shall not be cancelled, non-renewed or materially
amended without 10-days prior written notice to the Controlling Collateral
Agent, and (ii) with respect to all property insurance, provide for deductibles
not to exceed $500,000, contain a "Replacement Cost Endorsement" without any
deduction made for depreciation and with no co-insurance penalty (or attaching
an agreed amount endorsement reasonably satisfactory to the Controlling
Collateral Agent), with loss payable to the Administrative Agent, for the
benefit of the holders of the Bank Obligations, and Beneficiary, for the benefit
of the holders of the Note Obligations, as their interests may appear (modified,
if necessary, and to the extent available under such policy, to provide that
proceeds in the amount of replacement cost may be retained by the Controlling
Collateral Agent, for the benefit of the holders of the Secured Obligations (of,
if Beneficiary is the Controlling Collateral Agent, the Note Obligations),
without the obligation to rebuild) when a Notice of Actionable Event has been
given and is outstanding; if no Notice of Actionable Event has been given and is
outstanding, with loss in excess of $1,000,000 payable to the Administrative
Agent, for the benefit of the holders of the Bank Obligations, and Beneficiary,
for the benefit of the holders of the Note Obligations, as their interests may
appear (modified, if necessary, to provide that proceeds shall be applied by the
Controlling Collateral Agent toward the cost of rebuilding the Improvements),
without contribution, under a "standard" or "New York" mortgagee clause
reasonably acceptable to the Controlling Collateral Agent and be written by
insurance companies having an A.M. Best Company, Inc. rating of A or higher and
a financial size category of not less
11
than X, or otherwise as approved by the Controlling Collateral Agent. Liability
insurance policies shall name the Administrative Agent, for the benefit of the
holders of the Bank Obligations, and Beneficiary, for the benefit of the holders
of the Note Obligations (and Trustee, if Trustee shall so request), as
additional insureds as their interests may appear, and contain a waiver of
subrogation against the Administrative Agent and Beneficiary (and Trustee, if
Trustee shall so request); all such policies shall indemnify and hold the
Administrative Agent and Beneficiary (and Trustee, if Trustee shall so request)
harmless from all liability claims occurring on, in or about the Premises and
the adjoining streets, sidewalks and passageways. Each policy shall expressly
provide that any proceeds which are payable solely to Beneficiary shall be paid
by check payable to the order of Beneficiary only and requiring the endorsement
of Beneficiary only. If any required insurance shall expire, be withdrawn,
become void by breach of any condition thereof by Grantor or by any lessee of
any part of the Trust Property or become void or unsafe by reason of the failure
or impairment of the capital of any insurer, or if for any other reasonable
reason whatsoever such insurance shall become unsatisfactory to the Controlling
Collateral Agent, Grantor shall promptly obtain new or additional insurance
reasonably satisfactory to the Controlling Collateral Agent. Grantor shall not
take out any separate or additional insurance which is contributing in the event
of loss unless it is properly endorsed and otherwise reasonably satisfactory to
the Controlling Collateral Agent in all respects.
(b) Grantor shall deliver to Beneficiary an original of each
insurance policy required to be maintained, or a certificate of such insurance
reasonably acceptable to Beneficiary, together with a copy of the declaration
page for each such policy. Grantor shall (i) pay as they become due all premiums
for such insurance and (ii) not later than 15 days prior to the expiration of
each policy to be furnished pursuant to the provisions of this Section, deliver
a renewed policy or policies, or certificates of insurance, or duplicate
original or originals thereof, and, if requested by Beneficiary, accompanied by
evidence of payment satisfactory to Beneficiary with standard non-contributory
mortgage clauses in favor of and acceptable to Beneficiary. Upon request of
Beneficiary, Grantor shall use its best efforts to cause its insurance
underwriter or broker to certify to Beneficiary in writing that all the
requirements of this Deed of Trust governing insurance have been satisfied.
(c) If Grantor is in default of its obligations to insure or
deliver any such prepaid policy or policies or insurance certificate, then the
Controlling Collateral Agent, at its option and without notice, may effect such
insurance from year to year, and pay the premium or premiums therefor, and
Grantor shall pay to the Controlling Collateral Agent on demand such premium or
premiums so paid by the Controlling Collateral Agent with interest from the time
of payment at the Default Rate and the same shall be deemed to be secured by
this Deed of Trust and shall be collectible in the same manner as the Note
Obligations secured by this Deed of Trust.
(d) Grantor shall increase the amount of property insurance
required to equal 100% replacement cost pursuant to the provisions of this
Section at the time of each renewal of each policy (but not later than 12 months
from the date of this Deed of Trust and each successive 12 month period to occur
thereafter) by using the ▇.▇. ▇▇▇▇▇ Building Index or similar index used by
Grantor's insurance carriers to determine whether there shall have been an
increase in the replacement value since the most recent adjustment and, if there
shall have been such an increase, the amount of insurance required shall be
adjusted accordingly.
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(e) Grantor promptly shall comply with and conform to (i) all
provisions of each such insurance policy, and (ii) all requirements of the
insurers applicable to Grantor or to any of the Trust Property or to the use,
manner of use, occupancy, possession, operation, maintenance, alteration or
repair of any of the Trust Property. Grantor shall not use or permit the use of
the Trust Property in any manner which would permit any insurer to cancel any
insurance policy or void coverage required to be maintained by this Deed of
Trust.
(f) If the Trust Property, or any part thereof, shall be
destroyed or damaged by fire or any other casualty, whether insured or
uninsured, or in the event any material claim is made against Grantor for any
personal injury, bodily injury or property damage incurred on or about the Real
Estate, Grantor shall promptly give notice thereof to Beneficiary. If no Notice
of Actionable Event has been given and is outstanding, but subject to the
Collateral Agency Agreement, Grantor shall have the right to adjust such loss,
and the insurance proceeds relating to such loss shall be paid over to Grantor;
provided that Grantor shall, promptly after any such damage, repair all such
damage regardless of whether any insurance proceeds have been received or
whether such proceeds, if received, are sufficient to pay for the costs of
repair. If a Notice of Actionable Event has been given and is outstanding, then
Grantor authorizes and empowers the Controlling Collateral Agent, on behalf of
the holders of the Secured Obligations (or, if Beneficiary is the Controlling
Collateral Agent, the Note Obligations), at the Controlling Collateral Agent's
option and in the Controlling Collateral Agent's sole discretion, as
attorney-in-fact for Grantor, to make proof of loss, to appear in and prosecute
any action arising from any policy, to collect and receive insurance proceeds
and to deduct therefrom the Controlling Collateral Agent's expenses incurred in
the collection process. Each insurance company concerned is hereby authorized
and directed to make payment for such loss in excess of $500,000 directly to the
Controlling Collateral Agent. The Controlling Collateral Agent shall have the
right to require Grantor to repair or restore the Trust Property, and Grantor
hereby designates the Controlling Collateral Agent as its attorney-in-fact for
the purpose of making any election required or permitted under any insurance
policy relating to repair or restoration. The insurance proceeds or any part
thereof received by the Controlling Collateral Agent may be applied by the
Controlling Collateral Agent toward reimbursement of all costs and expenses of
the Controlling Collateral Agent in collecting such proceeds, and the balance,
at the Controlling Collateral Agent's option in its sole and absolute discretion
if a Notice of Actionable Event has been given and is outstanding, to the
payment of the Secured Obligations (or, if Beneficiary is the Controlling
Collateral Agent, the Note Obligations), to fulfill any of the Secured
Obligations (or, if Beneficiary is the Controlling Collateral Agent, the Note
Obligations), to the restoration or repair of the property damaged, or released
to Grantor. In the event the Controlling Collateral Agent elects to release such
proceeds to Grantor, Grantor shall be obligated to use such proceeds to restore
or repair the Trust Property. If no Notice of Actionable Event has been given
and is outstanding, then the insurance proceeds or any part thereof received by
the Controlling Collateral Agent shall be applied by the Controlling Collateral
Agent toward reimbursement of all costs and expenses of the Controlling
Collateral Agent in collecting such proceeds and the balance, if any, shall be
applied in accordance with the Collateral Agency Agreement.
(g) Upon written notice to Grantor, the Controlling Collateral
Agent after a Notice of Actionable Event has been given and remains outstanding
shall be entitled to require Grantor to pay monthly in advance to the
Controlling Collateral Agent, on behalf of the holders of the Secured
Obligations (or, if Beneficiary is the Controlling Collateral Agent, the Note
13
Obligations), the equivalent of 1/12th of the estimated annual premiums due on
such insurance. The Controlling Collateral Agent may commingle such funds with
its own funds and Grantor shall not be entitled to interest thereon.
(h) Grantor may maintain insurance required under this Deed of
Trust by means of one or more blanket insurance policies maintained by Grantor;
provided, however, that the protection afforded under any such blanket policy
shall be no less than that which would have been afforded under a separate
policy or policies relating only to the Trust Property.
6. Restrictions on Liens and Encumbrances. Except for the lien
of this Deed of Trust, Permitted Exceptions and Permitted Liens, Grantor shall
not further mortgage, nor otherwise encumber the Trust Property nor create or
suffer to exist any lien, charge or encumbrance on the Trust Property, or any
part thereof, whether superior or subordinate to this Deed of Trust and whether
recourse or non-recourse.
7. Transfer Restrictions. Grantor shall not, directly or
indirectly, sell, transfer, convey or assign all or any portion of, or any
interest in, the Trust Property, whether legal or equitable, by outright sale,
deed, installment sale contract, land contract, contract for deed, leasehold
interest, lease option, contract or any other method of conveyance of real
property interests in violation of the terms of the Indenture.
8. Maintenance; No Alteration; Inspection; Utilities. (a)
Grantor shall maintain or cause to be maintained all the Improvements in good
condition and repair and shall not commit or suffer any waste of the
Improvements. Grantor shall repair, restore, replace or rebuild promptly any
part of the Premises which may be damaged or destroyed by any casualty
whatsoever. The Improvements shall not be demolished or materially altered, nor
any material additions built, without the prior written consent of the
Controlling Collateral Agent which consent shall not be unreasonably withheld.
(b) The Controlling Collateral Agent and any persons
authorized by the Controlling Collateral Agent shall have the right, upon
reasonable advance notice to Grantor and at reasonable times, to enter and
inspect the Premises and the right to inspect all work done, labor performed and
materials furnished in and about the Improvements and the right to inspect and
make copies of all books, contracts and records of Grantor relating to the Trust
Property.
(c) Grantor shall pay or cause to be paid when due all utility
charges which are incurred for gas, electricity, water or sewer services
furnished to the Premises and all other assessments or charges of a similar
nature, whether public or private, affecting the Premises or any portion
thereof, whether or not such assessments or charges are liens thereon.
9. Condemnation/Eminent Domain. Promptly upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Trust Property, or any portion thereof, Grantor will notify Beneficiary of the
pendency of such proceedings. Grantor authorizes the Controlling Collateral
Agent, on behalf of the holders of the Secured Obligations (or, if Beneficiary
is the Controlling Collateral Agent, the Note Obligations), at the Controlling
Collateral Agent's option and in the Controlling Collateral Agent's sole
discretion, to commence, appear in and participate, in the Controlling
Collateral Agent's or Grantor's name, in any action
14
or proceeding relating to any condemnation of the Trust Property, or any portion
thereof. If the Controlling Collateral Agent elects not to participate in such
condemnation proceeding, then Grantor shall, at its expense, diligently
prosecute any such proceeding and shall consult with the Controlling Collateral
Agent, its attorneys and experts and cooperate with them in any defense of any
such proceedings. All awards and proceeds of condemnation shall be assigned to
the Controlling Collateral Agent to be applied in the same manner as insurance
proceeds, as provided above, and Grantor agrees to execute any such assignments
of all such awards as the Controlling Collateral Agent may reasonably request.
10. Restoration. If the Controlling Collateral Agent is
required to release funds to Grantor for restoration of the Trust Property or
otherwise elects to release such funds to Grantor for such restoration, then
such restoration shall be performed only in accordance with the following
conditions:
(i) prior to the commencement of any restoration, the plans
and specifications for such restoration, and the budgeted costs, shall
be submitted to and approved by the Controlling Collateral Agent;
(ii) prior to making any advance of restoration funds, the
Controlling Collateral Agent shall be satisfied that the remaining
restoration funds together with funds available to Grantor for such
restoration are sufficient to complete the restoration and to pay all
related expenses, including real estate taxes on the Premises, during
restoration;
(iii) at the time of any disbursement of the restoration
funds, (A) no Event of Default (hereinafter defined) shall have
occurred and be continuing, (B) no mechanics' or materialmen's liens
shall have been filed and remain undischarged, except those discharged
by the disbursement of the requested restoration funds and (C) a
satisfactory bring-down or continuation of title insurance on the
Premises shall be delivered to Beneficiary;
(iv) disbursements shall be made from time to time in an
amount not exceeding the cost of the work completed since the last
disbursement, upon receipt of satisfactory evidence of the stage of
completion and of performance of the work in a good and workmanlike
manner and in accordance with the contracts, plans and specifications
acceptable to the Controlling Collateral Agent ;
(v) with respect to each advance of restoration funds, the
Controlling Collateral Agent may retain 10% of the amount of such
advance as a holdback until the restoration is fully completed;
(vi) the restoration funds shall bear no interest;
(vii) the Controlling Collateral Agent may impose such other
conditions as are customarily imposed by construction lenders; and
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(viii) any restoration funds remaining after payment of the
cost of the work shall be retained by the Controlling Collateral Agent
and shall be applied by the Controlling Collateral Agent, in accordance
with the provisions of the Collateral Agency Agreement.
11. Leases. (a) Grantor shall not (i) execute an assignment or
pledge of any Lease relating to all or any portion of the Trust Property other
than in favor of the Controlling Collateral Agent, on behalf of the holders of
the Secured Obligations (or, if Beneficiary is the Controlling Collateral Agent,
the Note Obligations), or (ii) without the prior written consent of the
Controlling Collateral Agent, which Consent shall not be deemed effective with
respect to any Lease the execution or existence of which would violate the
provisions of the Indenture, execute or permit to exist any Lease.
(b) As to any Lease consented to by the Controlling Collateral
Agent, Grantor shall:
(i) promptly perform all of the provisions of the Lease on the
part of the lessor thereunder to be performed;
(ii) promptly enforce all of the provisions of the Lease on
the part of the lessee thereunder to be performed;
(iii) appear in and defend any action or proceeding arising
under or in any manner connected with the Lease or the obligations of
Grantor as lessor or of the lessee thereunder;
(iv) exercise, within 5 days after a request by the
Controlling Collateral Agent, any right to request from the lessee a
certificate with respect to the status thereof;
(v) simultaneously deliver to Beneficiary copies of any
notices of default which Grantor may at any time forward to or receive
from the lessee;
(vi) promptly deliver to Beneficiary a fully executed
counterpart of the Lease; and
(vii) promptly deliver to Beneficiary, upon Beneficiary's
request, an assignment of Grantor's interest under such Lease, provided
that, if the First Deed Lien Termination Date has not occurred, such
delivery shall be required only if the Grantor assigns such lease, on a
first priority basis, to the Administrative Agent.
(c) Grantor shall deliver to Beneficiary, within 10 days after
a written request by Beneficiary, a written statement, certified by Grantor as
being true, correct and complete, containing the names of all lessees and other
occupants of the Trust Property, the terms of all Leases and the spaces occupied
and rentals payable thereunder, and a list of all Leases which are then in
default, including the nature and magnitude of the default.
(d) All Leases entered into by Grantor after the date hereof,
if any, and all rights of any lessees thereunder shall be subject and
subordinate in all respects to the lien and provisions of this Deed of Trust
unless (i) the Controlling Collateral Agent shall otherwise elect
16
in writing in respect of both the First Deed Lien and the lien of this Deed of
Trust and (ii) such election does not violate the Indenture.
(e) As to any Lease now in existence or subsequently consented
to by the Controlling Collateral Agent, Grantor shall not accept a surrender or
terminate, cancel, rescind, supplement, alter, revise, modify or amend such
Lease or permit any such action to be taken nor shall Grantor accept the payment
of rent more than 30 days in advance of its due date.
(f) In the event of the enforcement by the Controlling
Collateral Agent of any remedy under this Deed of Trust, the lessee under each
Lease shall, if requested by the Controlling Collateral Agent or any other
person succeeding to the interest of the Controlling Collateral Agent as a
result of such enforcement, attorn to the Controlling Collateral Agent or to
such person and shall recognize the Controlling Collateral Agent or such
successor in interest as lessor under the Lease without change in the provisions
thereof; provided however, that the Controlling Collateral Agent or such
successor in interest shall not be: (i) bound by any payment of an installment
of rent or additional rent which may have been made more than 30 days before the
due date of such installment; (ii) bound by any amendment or modification to the
Lease made without the consent of the Controlling Collateral Agent (which
consent shall not be unreasonably withheld) or such successor in interest; (iii)
liable for any previous act or omission of Grantor (or its predecessors in
interest); (iv) responsible for any monies owing by Grantor to the credit of
such lessee or subject to any credits, offsets, claims, counterclaims, demands
or defenses which the lessee may have against Grantor (or its predecessors in
interest); (v) bound by any covenant to undertake or complete any construction
of the Premises or any portion thereof; or (vi) obligated to make any payment to
such lessee other than any security deposit actually delivered to the
Controlling Collateral Agent or such successor in interest. Each lessee or other
occupant, upon request by the Controlling Collateral Agent or such successor in
interest, shall execute and deliver an instrument or instruments confirming such
attornment. In addition, Grantor agrees that each Lease entered into after the
date of this Deed of Trust shall include language to the effect of subsections
(d)-(f) of this Section; provided that the provisions of such subsections shall
be self-operative and any failure of any Lease to include such language shall
not impair the binding effect of such provisions on any lessee under such Lease.
12. Further Assurances/Estoppel Certificates. To further
assure Beneficiary's rights under this Deed of Trust, Grantor agrees promptly
upon written request of Beneficiary to do any act or execute any additional
documents (including, but not limited to, security agreements on any personalty
included or to be included in the Trust Property and a separate assignment of
each Lease in recordable form) as may be reasonably required by Beneficiary to
confirm the rights or benefits conferred on Beneficiary by this Deed of Trust.
13. Grantor's Existence, etc. Grantor represents and warrants
that Grantor is a duly organized and validly existing corporation or general or
limited partnership, as the case may be, in good standing, and this Deed of
Trust has been executed by a duly authorized partner or officer thereof, as
applicable. This Deed of Trust constitutes the legal, valid and binding
obligation of Grantor, enforceable against Grantor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
17
14. Hazardous Materials. The existence of, and Grantor's
obligations with respect to, any Hazardous Materials (hereinafter defined) which
may exist at the Premises shall be as provided in this Article 14.
(a) Definitions. For the purposes of this Article 14, the
following terms will have the meanings set forth below:
"Hazardous Materials" shall mean any hazardous materials,
hazardous wastes, hazardous or toxic substances, defined or regulated as such in
or under any Environmental Law (hereinafter defined), including without
limitation asbestos, Petroleum Products (hereinafter defined)and material
exhibiting the characteristics of ignitability, corrosivity, reactivity or
extraction procedure toxicity, as such terms are defined in connection with
hazardous materials or hazardous wastes or hazardous or toxic substances in any
Environmental Law;
"Environmental Laws" shall mean any and all federal, national,
state, provincial, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees or requirements of any Governmental
Authority within or outside of the United States regulating, relating to or
imposing liability or standards of conduct concerning any Hazardous Materials or
environmental protection, as now or may at any time hereafter be in effect,
including, without limitation, the Clean Water Act, also known as the Federal
Water Pollution Control Act, 33 U.S.C.ss.1251 et seq., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C.ss.136 et seq., the Surface Mining
Control and Reclamation Act, 30 U.S.C.ss.1201 et seq., the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.ss.9601 et seq.
(as amended by the Superfund Amendment and Reauthorization Act of 1986, Public
Law 99-499, 100 Stat. 1613), the Emergency Planning and Community Right to Know
Act, 42 U.S.C.ss.1101 et seq., the Resource Conservation and Recovery Act, 42
U.S.C.ss.6901 et seq., the Safe Drinking Water Act, 42 U.S.C.ss.300F et seq.,
the Toxic Substances Control Act, 15 U.S.C.ss.2601 et seq., together, in each
case, with each amendment thereto, and the regulations adopted and publications
promulgated thereunder and all substitutions therefor;
"Petroleum Products" shall mean gasoline, diesel fuel, motor
oil, waste or used oil, heating oil, kerosene and any other petroleum products,
including crude oil or any fraction thereof.
(b) Covenants. Grantor will, and will cause each of its
Subsidiaries to:
(i) Comply with and require compliance by all tenants and
subtenants, if any, with all Environmental Laws and obtain and comply
in all material respects with and maintain, and require that all
tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, registrations or permits required by Environmental
Laws, except to the extent that the failure to do so would not be
reasonably likely to have a Material Adverse Effect;
(ii) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all Governmental
Authorities respecting Environmental Laws, except (i) to the extent
that
18
the failure to perform any of the obligations contained in this clause
(b) would not be reasonably likely to have a material adverse effect or
(ii) to the extent that such obligations are being contested in good
faith by appropriate proceedings and the pendency of such proceedings
would not be reasonably likely to have a material adverse effect; and
(iii) Defend, indemnify and hold harmless Beneficiary and its
respective employees, agents, officers and directors, from and against
any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of or noncompliance with any Environmental
Laws by Grantor or any of its Subsidiaries, or any orders, requirements
or demands of Governmental Authorities related thereto, including
without limitation reasonable attorney and consultant fees,
investigation and laboratory fees, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification
therefor.
15. Reserved.
16. Remedies. (a) If a Notice of an Actionable Event has been
given and remains outstanding, the Controlling Collateral Agent may immediately
take such action, without notice or demand, as it deems advisable to protect and
enforce the rights of the holders of the Secured Obligations (or, if Beneficiary
is the Controlling Collateral Agent, the Note Obligations) against Grantor and
in and to the Trust Property, including, but not limited to, the following
actions, each of which may be pursued concurrently or otherwise, at such time
and in such manner as the Controlling Collateral Agent may determine, in its
sole discretion, without impairing or otherwise affecting the other rights and
remedies of the Controlling Collateral Agent :
(i) The Controlling Collateral Agent may elect to foreclose
under power of sale, in which case it shall be lawful for, and the duty
of, Trustee, upon receipt by Trustee of a written declaration of
default and demand for sale by the Controlling Collateral Agent, to
sell (and, in case of any default of any purchaser, resell) the Trust
Property, in whole or in part or parcels (without regard to the right
of any party to a marshalling of assets, Grantor hereby expressly
waiving any such right), such sale in whole or in part or parcels to be
determined by Trustee in his sole discretion (Grantor hereby expressly
consenting thereto), at public venue to the highest bidder for cash at
the door of the Court House then customarily employed for that purpose
in the county where the Real Estate is located, after having given such
notice of hearing as to commencement of foreclosure proceedings and
having obtained such findings or leave of Court as may then be required
by law and then having given such notice of the time and place of sale
and a description of the property to be sold and by advertisement
published as is provided by the laws of the State of North Carolina
then in effect, and by such other methods, if any, as the Controlling
Collateral Agent may deem desirable or as may be required or permitted
by applicable law. The Trustee shall receive the proceeds of such sale
and, after retaining a reasonable commission for his services, together
with reasonable attorneys fees incurred by the Trustee in such
proceeding, apply such proceeds to the cost of sale, including, but
19
not limited to, costs of collection, taxes, assessments, costs of
recording, service fees and incidental expenditures, the Secured
Obligations (or, if Beneficiary is the Controlling Agent, the Note
Obligations) secured hereby and advancements and other sums expended by
the Controlling Collateral Agent according to the provisions hereof and
otherwise as required by the then existing law relating to
foreclosures. If permitted by the then existing law relating
foreclosures, the Trustee may sell and convey the Trust Property under
the power aforesaid, although the Trustee has been, may now be or may
hereafter be attorney or agent or employee of the Controlling
Collateral Agent with respect to the Secured Obligations (or, if
Beneficiary is the Controlling Collateral Agent, the Note Obligations)
or with respect to any matter or business whatsoever. If permitted by
the then existing law relating to foreclosures, Trustee may adjourn
from time to time any sale by him to be made under or by virtue or this
Deed of Trust by announcement at the time and place appointed for such
sale or for such adjourned sale or sales; and, except as otherwise
provided by any applicable provision of law, Trustee, without further
notice or publication, except for any notice or publication as may be
required by the then existing law, may make such sale at the time and
place to which the same shall be adjourned.
(ii) The Controlling Collateral Agent may, to the extent
permitted by applicable law, (A) institute and maintain an action of
judicial foreclosure against all or any part of the Trust Property, (B)
institute and maintain an action on the Secured Obligations (or, if
Beneficiary is the Controlling Collateral Agent, the Note Obligations),
or (C) take such other action at law or in equity for the enforcement
of this Deed of Trust or the Secured Obligations (or, if Beneficiary is
the Controlling Collateral Agent, the Note Obligations) as the law may
allow. The Controlling Collateral Agent may proceed in any such action
to final judgment and execution thereon for all sums due hereunder,
together with interest thereon at the Default Rate and all costs of
suit, including, without limitation, reasonable attorneys' fees and
disbursements. Interest at the Default Rate shall be due on any
judgment obtained by Beneficiary from the date of judgment until actual
payment is made of the full amount of the judgment.
(iii) The Controlling Collateral Agent may personally, or by
its agents, attorneys and employees and without regard to the adequacy
or inadequacy of the Trust Property or any other collateral as security
for the Secured Obligations (or, if Beneficiary is the Controlling
Collateral Agent, the Note Obligations) enter into and upon the Trust
Property and each and every part thereof and exclude Grantor and its
agents and employees therefrom without liability for trespass, damage
or otherwise (Grantor hereby agreeing to surrender possession of the
Trust Property to the Controlling Collateral Agent upon demand at any
such time) and use, operate, manage, maintain and control the Trust
Property and every part thereof. Following such entry and taking of
possession, the Controlling Collateral Agent shall be entitled, without
limitation, (x) to lease all or any part or parts of the Trust Property
for such periods of time and upon such conditions as the Controlling
Collateral Agent may, in its discretion, deem proper, (y) to enforce,
cancel or modify any Lease and (z) generally to execute, do and perform
any other act, deed, matter or thing concerning the Trust Property as
the Controlling Collateral Agent shall deem appropriate as fully as
Grantor might do.
20
(b) The Controlling Collateral Agent, in any action to
foreclose this Deed of Trust in a judicial procedure or in connection with the
exercise of any non-judicial power of sale by Trustee, shall be entitled to the
appointment of a receiver. In case of a trustee's sale or foreclosure sale, the
Real Estate may be sold, at the Controlling Collateral Agent's election, in one
parcel or in more than one parcel and the Controlling Collateral Agent is
specifically empowered (without being required to do so, and in its sole and
absolute discretion) to cause successive sales of portions of the Trust Property
to be held.
(c) Upon completion of any sale or sales made by Trustee under
or by virtue of this Deed of Trust and upon satisfaction of any up-set bid
period required by law, Trustee shall execute and deliver to the purchaser or
purchasers at such sale or sales a good and sufficient instrument, or good and
sufficient instruments, conveying, assigning and transferring all estate, right,
title and interest of the Trustee in and to the property and rights sold. Any
such sale or sales made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, shall operate to divest all the estate, right, title, interest, claim and
demand whatsoever, whether at law or in equity, of Grantor in and to the
properties and rights to be sold, and shall be a perpetual bar both at law and
in equity, of Grantor and against any and all persons claiming or who may claim
the same, or any part thereof from, through or under Grantor. The purchaser at
any foreclosure sale hereunder may disaffirm any easement granted or Lease made
in violation of any provision of this Deed of Trust, and may take immediate
possession of the Trust Property free from, and despite the terms of, such grant
of easement or rental or lease agreement.
(d) In the event of any breach of any of the covenants,
agreements, terms or conditions contained in this Deed of Trust, but subject to
the provisions of the Collateral Agency Agreement, Beneficiary or Trustee shall
be entitled to enjoin such breach and obtain specific performance of any
covenant, agreement, term or condition and Beneficiary and Trustee shall have
the right to invoke any equitable right or remedy as though other remedies were
not provided for in this Deed of Trust.
17. Right of Beneficiary to Credit Sale. Upon the occurrence
of any sale made under this Deed of Trust, whether made under the power of sale
or by virtue of judicial proceedings or of a judgment or decree of foreclosure
and sale, Beneficiary may bid for and acquire the Trust Property or any part
thereof. In lieu of paying cash therefor, Beneficiary may make settlement for
the purchase price by crediting (in accordance with the provisions of the
Collateral Agency Agreement) upon the Note Obligations the net sales price after
deducting therefrom the expenses of sale and the cost of the action and any
other sums which Beneficiary is authorized to deduct under this Deed of Trust.
In such event, this Deed of Trust and the other Note Obligation Documents and
documents evidencing expenditures secured hereby may be presented to the person
or persons conducting the sale in order that the amount so used or applied may
be credited upon the Note Obligations as having been paid.
18. 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
willful negligence or misconduct, and
21
hereby waives any statutory fee and agrees to accept reasonable compensation, in
lieu thereof, for any services rendered by Trustee in accordance with the terms
hereof.
(b) Trustee, may resign at any time upon giving thirty (30)
days' notice in writing to Grantor and to the Controlling Collateral Agent.
(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 of Trustee, or absence from the
State of North Carolina of Trustee, or in its sole discretion for any reason
whatsoever the Beneficiary, without notice and without specifying the reason
therefor and without applying to any court, may 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 the Beneficiary. Such substitute trustee shall be
appointed by written instrument duly recorded in the county where the Real
Estate is located. Grantor hereby ratifies and confirms any and all acts which
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 of 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 be liable for its validity or its priority as a second
deed of trust, or otherwise, nor shall Trustee be answerable or responsible for
performance of 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 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 litigation, 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 shall be recoverable to the extent permitted by
law by all remedies at law or in equity by which the Indebtedness may be
recovered.
(e) At any time, or from time to time, without liability
therefor and without notice, 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 Property, (ii) consent
in writing to the making of any map or plat thereof, (iii) join in granting any
easement thereon, or (iv) join in any extension agreement or any agreement
subordinating the lien or charge hereof.
19. Appointment of Receiver. If a Notice of an Actionable
Event has been given and remains outstanding, the Controlling Collateral Agent
as a matter of right and without notice to Grantor, unless otherwise required by
applicable law, and without regard to the adequacy or inadequacy of the Trust
Property or any other collateral as security for Secured
22
Obligations (or, if Beneficiary is the Controlling Collateral Agent, the Note
Obligations) or the interest of Grantor therein, shall have the right to apply
to any court having jurisdiction to appoint a receiver or receivers or other
manager of the Trust Property, without requiring the posting of a surety bond
unless the same is required by applicable law and without reference to the
adequacy or inadequacy of the value of the Trust Property or the solvency or
insolvency of Grantor or any other party obligated for payment of all or any
part of Secured Obligations (or, if Beneficiary is the Controlling Collateral
Agent, the Note Obligations), and whether or not waste has occurred with respect
to the Trust Property. Grantor hereby irrevocably consents to such appointment
and waives notice of any application therefor (except as may be required by
law). Any such receiver or receivers shall have all the usual powers and duties
of receivers in like or similar cases and all the powers and duties of the
Controlling Collateral Agent in case of entry as provided in this Deed of Trust,
including, without limitation and to the extent permitted by law, the right to
enter into leases of all or any part of the Trust Property, and shall continue
as such and exercise all such powers until the date of confirmation of sale of
the Trust Property unless such receivership is sooner terminated.
20. Extension, Release, etc. (a) Without affecting the
encumbrance or charge of this Deed of Trust upon any portion of the Trust
Property not then or theretofore released as security for the Note Obligations,
Beneficiary may, from time to time and without notice, agree to (i) release any
person liable for the Note Obligations, (ii) extend the maturity or alter any of
the terms of the Note Obligations or any guaranty thereof, (iii) grant other
indulgences, (iv) release or reconvey, or cause to be released or reconveyed at
any time at Beneficiary's option any parcel, portion or all of the Trust
Property, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make compositions or other arrangements
with debtors in relation thereto. If at any time this Deed of Trust shall secure
less than all of the Note Obligations, it is expressly agreed that any
repayments of the Note Obligations shall not reduce the amount of the
encumbrance of this Deed of Trust until the encumbrance amount shall equal the
principal amount of the Note Obligations outstanding.
(b) No recovery of any judgment by the Controlling Collateral
Agent and no levy of an execution under any judgment upon the Trust Property or
upon any other property of Grantor shall affect the encumbrance of this Deed of
Trust or any liens, rights, powers or remedies of the Controlling Collateral
Agent, Beneficiary or Trustee hereunder, and such liens, rights, powers and
remedies shall continue unimpaired.
(c) If the Controlling Collateral Agent shall have the right
to foreclose this Deed of Trust or to direct the Trustee to exercise its power
of sale, Grantor authorizes the Controlling Collateral Agent at its option to
foreclose the lien of this Deed of Trust (or direct the Trustee to sell the
Trust Property, as the case may be) subject to the rights of any tenants of the
Trust Property. The failure to make any such tenants parties defendant to any
such foreclosure proceeding and to foreclose their rights, or to provide notice
to such tenants as required in any statutory procedure governing a sale of the
Trust Property by Trustee, or to terminate such tenant's rights in such sale
will not be asserted by Grantor as a defense to any proceeding instituted by the
Controlling Collateral Agent or Beneficiary to collect the Note Obligations or
to foreclose this Deed of Trust.
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(d) Unless expressly provided otherwise, in the event that
Beneficiary's interest in this Deed of Trust and title to the Trust Property or
any estate therein shall become vested in the same person or entity, this Deed
of Trust shall not merge in such title but shall continue as a valid charge on
the Trust Property for the amount secured hereby.
21. Security Agreement under Uniform Commercial Code. (a) It
is the intention of the parties hereto that this Deed of Trust shall constitute
a Security Agreement within the meaning of the Uniform Commercial Code (the
"Code") of the State in which the Trust Property is located. If a Notice of
Actionable Event has been given and remains outstanding, then in addition to
having any other right or remedy available at law or in equity, the Controlling
Collateral Agent shall have the option of either (i) proceeding under the Code
and exercising such rights and remedies as may be provided to a secured party by
the Code with respect to all or any portion of the Trust Property which is
personal property (including, without limitation, taking possession of and
selling such property) or (ii) treating such property as real property and
proceeding with respect to both the real and personal property constituting the
Trust Property in accordance with the Controlling Collateral Agent's rights,
powers and remedies with respect to the real property (in which event the
default provisions of the Code shall not apply). If the Controlling Collateral
Agent shall elect to proceed under the Code, then ten days' notice of sale of
the personal property shall be deemed reasonable notice and the reasonable
expenses of retaking, holding, preparing for sale, selling and the like incurred
by the Controlling Collateral Agent shall include, but not be limited to,
reasonable attorneys' fees and legal expenses. At the Controlling Collateral
Agent's request, Grantor shall assemble the personal property and make it
available to the Controlling Collateral Agent at a place designated by the
Controlling Collateral Agent which is reasonably convenient to both parties.
(b) Grantor and Beneficiary agree, to the extent permitted by
law, that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this Deed of
Trust upon recording or registration in the real estate records of the proper
office shall constitute a financing statement filed as a "fixture filing" within
the meaning of Sections 9-334 and 9-502 of the Code; (iii) Grantor is the record
owner of the Real Estate; and (iv) the addresses of Grantor and Beneficiary are
as set forth on the first page of this Deed of Trust.
(c) Grantor, upon reasonable request by Beneficiary from time
to time, shall execute, acknowledge and deliver to Beneficiary one or more
separate security agreements, in form reasonably satisfactory to Beneficiary,
covering all or any part of the Trust Property and will further execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any financing statement, affidavit, continuation statement or certificate or
other document as Beneficiary may reasonably request in order to perfect,
preserve, maintain, continue or extend the security interest under and the
priority of this Deed of Trust and such security instrument. Grantor further
agrees to pay to Beneficiary on demand all reasonable costs and expenses
incurred by Beneficiary in connection with the preparation, execution,
recording, filing and re-filing of any such document and all reasonable costs
and expenses of any record searches for financing statements Beneficiary shall
reasonably require. Grantor shall from time to time on request of Beneficiary,
deliver to Beneficiary an inventory in reasonable detail of any of the Trust
Property which constitutes personal property. If Grantor shall fail to furnish
any financing or continuation statement within 10 days after request by
Beneficiary, then pursuant to the
24
provisions of the Code, Grantor hereby authorizes Beneficiary, without the
signature of Grantor, to execute and file any such financing and continuation
statements. The filing of any financing or continuation statements in the
records relating to personal property or chattels shall not be construed as in
any way impairing the right of Beneficiary to proceed against any personal
property encumbered by this Deed of Trust as real property, as set forth above.
22. Assignment of Rents. Subject to Permitted Liens, Grantor
hereby absolutely and unconditionally assigns, transfers, conveys and sets over
to Beneficiary, the Rents as further security for the payment and performance of
the Note Obligations, and Grantor grants to Beneficiary the right, after the
First Deed Lien Termination Date, to enter the Trust Property for the purpose of
collecting the same and to let the Trust Property or any part thereof, and to
apply the Rents on account of the Note Obligations. The foregoing assignment and
grant is present and absolute and shall continue in effect until the Note
Obligations are paid and performed in full, but Beneficiary and Trustee hereby
waive the right to enter the Trust Property for the purpose of collecting the
Rents and Grantor shall be entitled to collect, receive, use and retain the
Rents except during any period when a Notice of Actionable Event has been given
and remains outstanding; such right of Grantor to collect, receive, use and
retain the Rents may be revoked by Beneficiary upon the occurrence and during
any period when a Notice of Actionable Event has been given and remains
outstanding; by giving not less than five days' written notice of such
revocation to Grantor; in the event such notice is given, Grantor shall, after
the First Deed Lien Termination Date, pay over to Beneficiary, or to any
receiver appointed to collect the Rents, any lease security deposits, and shall
pay monthly in advance to Beneficiary, or to any such receiver, the fair and
reasonable rental value as determined by Beneficiary for the use and occupancy
of the Trust Property or of such part thereof as may be in the possession of
Grantor or any affiliate of Grantor, and upon default in any such payment
Grantor and any such affiliate will vacate and, after the First Deed Lien
Termination Date, surrender the possession of the Trust Property to Beneficiary
or to such receiver, and in default thereof may be evicted by summary
proceedings or otherwise. Grantor shall not accept prepayments of installments
of Rent to become due for a period of more than one month in advance (except for
security deposits and estimated payments of percentage rent, if any).
23. Trust Funds. All lease security deposits of the Real
Estate shall be treated as trust funds not to be commingled with any other funds
of Grantor. Within 10 days after request by the Controlling Collateral Agent,
Grantor shall furnish Beneficiary reasonably satisfactory evidence of compliance
with this subsection, together with a statement of all lease security deposits
by lessees and copies of all Leases not previously delivered to the Controlling
Collateral Agent, which statement shall be certified by Grantor.
24. Additional Rights. The holder of any subordinate lien or
subordinate deed of trust on the Trust Property shall have no right to terminate
any Lease whether or not such Lease is subordinate to this Deed of Trust nor
shall any holder of any subordinate lien or subordinate deed of trust join any
tenant under any Lease in any trustee's sale or action to foreclose the lien or
modify, interfere with, disturb or terminate the rights of any tenant under any
Lease. By recordation of this Deed of Trust all subordinate lienholders and the
trustees and beneficiaries under subordinate deeds of trust are subject to and
notified of this provision, and any action taken by any such lienholder or
trustee or beneficiary contrary to this provision shall be null and void. If a
Notice of Actionable Event has been given and remains outstanding,
25
Beneficiary may, in its sole discretion and without regard to the adequacy of
its security under this Deed of Trust, apply all or any part of any amounts on
deposit with Beneficiary under this Deed of Trust against all or any part of the
Note Obligations in accordance with the provisions of the Collateral Agency
Agreement. Any such application shall not be construed to cure or waive any
Actionable Event or invalidate any act taken by Beneficiary on account of such
Actionable Event.
25. Changes in Method of Taxation. In the event of the passage
after the date hereof of any law of any Governmental Authority deducting from
the value of the Premises for the purposes of taxation of any lien or deed of
trust thereon, or changing in any way the laws for the taxation of mortgages or
deeds of trust or debts secured thereby for federal, state or local purposes, or
the manner of collection of any such taxes, and imposing a tax, either directly
or indirectly, on mortgages or deeds of trust or debts secured thereby, the
holder of this Deed of Trust shall have the right to declare the Note
Obligations due on a date to be specified by not less than 30 days' written
notice to be given to Grantor unless within such 30 day period the Grantor shall
assume as a Note Obligation the payment of any tax so imposed until the Note
Obligations shall have been paid in full and such assumption shall be permitted
by law.
26. Notices. All notices, requests, demands and other
communications hereunder to be effective shall be in writing or by telecopy and
unless otherwise expressly provided herein, shall be deemed to have been
sufficiently given or served when presented by hand or when deposited in the
mail by certified or return receipt requested mail, postage prepaid, or in the
case of telecopy notice, when sent, addressed to Grantor at the address given on
the first page of this Deed of Trust, to Beneficiary at the address given on the
first page of this Deed of Trust and to Trustee at the address given on the
first page of this Deed of Trust. Any party may change its address by notice to
the other party. If any party other than Grantor shall be entitled to receive
copies of notices, demands or approvals, failure of Beneficiary or Trustee to
send such copies shall not impair the effectiveness of any notice sent to
Grantor.
27. Amendments and Modifications. This Deed of Trust may not
be changed or terminated orally, but may be waived, altered, modified or amended
only in accordance with the terms of the Indenture and the Collateral Agency
Agreement. Without limiting the generality of the foregoing, amendments, waivers
and consents effected in respect of certain provisions of the First Lien
Documents shall, upon their effectiveness but only to the extent provided in the
Collateral Agency Agreement, apply with equal force to the comparable provisions
of this Deed of Trust and become effective with respect thereto without the
consent of or any other action on the part of any Person.
28. 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 invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding anything to the contrary contained in this Deed of
Trust or in any provisions of any document evidencing the Note Obligations, the
obligations of Grantor and of any other obligor in respect of the Note
Obligations shall be subject to the limitation that Beneficiary shall not
charge, take or receive, nor shall Grantor or any other
26
obligor be obligated to pay to Beneficiary, any amounts constituting interest in
excess of the maximum rate permitted by law.
29. Grantor's Waiver of Rights. To the fullest extent
permitted by law, Grantor waives the benefit of all laws now existing or that
may subsequently be enacted providing for (i) any appraisement before sale of
any portion of the Trust Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Trust Property from attachment, levy or sale under execution or
exemption from civil process. To the full extent Grantor may do so, Grantor
agrees that Grantor will not at any time insist upon, plead, claim or take the
benefit or advantage of any law now or hereafter in force providing for any
appraisement, valuation, stay, exemption, extension or redemption, or requiring
foreclosure of this Deed of Trust before exercising any other remedy granted
hereunder and Grantor, for Grantor and its successors and assigns, and for any
and all persons ever claiming any interest in the Trust Property, to the extent
permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of the secured indebtedness and marshalling in the event
of exercise by Trustee or Beneficiary of the power of sale or other rights
hereby created.
30. Remedies Not Exclusive. Beneficiary and Trustee shall be
entitled to enforce payment and performance of the Note Obligations and to
exercise all rights and powers under this Deed of Trust, any other Note
Obligation Document, or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Note Obligations may now or hereafter be
otherwise secured, whether by deed of trust, mortgage, security agreement,
pledge, lien, assignment or otherwise. Neither the acceptance of this Deed of
Trust nor its enforcement, shall prejudice or in any manner affect Beneficiary's
or Trustee's right to realize upon or enforce any other security now or
hereafter held by Beneficiary or Trustee, it being agreed that Beneficiary and
Trustee shall be entitled to enforce this Deed of Trust and any other security
now or hereafter held by Beneficiary or Trustee in such order and manner as
Beneficiary may determine in its absolute discretion, subject to the provisions
of the Collateral Agency Agreement. No remedy herein conferred upon or reserved
to Trustee or Beneficiary is intended to be exclusive of any other remedy herein
or by law provided or permitted, but each shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute. Every power or remedy given by any document
evidencing the Note Obligations to Beneficiary or Trustee or to which either may
otherwise be entitled, may be exercised, concurrently or independently, from
time to time and as often as may be deemed expedient by Beneficiary or Trustee,
as the case may be. In no event shall Beneficiary or Trustee, in the exercise of
the remedies provided in this Deed of Trust (including, without limitation, in
connection with the assignment of Rents, or the appointment of a receiver and
the entry of such receiver on to all or any part of the Trust Property), be
deemed a "mortgagee in possession," and neither Beneficiary nor Trustee shall in
any way be made liable for any act, either of commission or omission, in
connection with the exercise of such remedies, except for their own bad faith,
gross negligence or willful misconduct.
31. Multiple Security. If (a) the Premises shall consist of
one or more parcels, whether or not contiguous and whether or not located in the
same county, or (b) in addition to this Deed of Trust, Beneficiary shall now or
hereafter hold or be the beneficiary of one or more
27
additional mortgages, liens, deeds of trust or other security (directly or
indirectly) for the Note Obligations upon other property in the State in which
the Premises are located (whether or not such property is owned by Grantor or by
others) or (c) both the circumstances described in clauses (a) and (b) shall be
true, then to the fullest extent permitted by law, Beneficiary may, at its
election, after the First Deed Lien Termination Date, commence or consolidate in
a single trustee's sale or foreclosure action all trustee's sale or foreclosure
proceedings against all such collateral securing the Note Obligations (including
the Trust Property), which action may be brought or consolidated in the courts
of, or sale conducted in, any county in which any of such collateral is located.
Grantor acknowledges that the right to maintain a consolidated trustee's sale or
foreclosure action is a specific inducement to Beneficiary, on behalf of the
holders of the Note Obligations, to enter into the transactions contemplated by
the Indenture, and Grantor expressly and irrevocably waives any objections to
the commencement or consolidation of the foreclosure proceedings in a single
action and any objections to the laying of venue or based on the grounds of
forum non conveniens which it may now or hereafter have. Grantor further agrees
that if Trustee or Beneficiary shall be prosecuting one or more foreclosure or
other proceedings against a portion of the Trust Property or against any
collateral other than the Trust Property, which collateral directly or
indirectly secures the Note Obligations, or if Beneficiary shall have obtained a
judgment of foreclosure and sale or similar judgment against such collateral
(or, in the case of a trustee's sale, shall have met the statutory requirements
therefor with respect to such collateral), then, whether or not such proceedings
are being maintained or judgments were obtained in or outside the State in which
the Premises are located, Beneficiary may commence or continue any trustee's
sale or foreclosure proceedings and exercise its other remedies granted in this
Deed of Trust against all or any part of the Trust Property in accordance with
the provisions of the Collateral Agency Agreement and Grantor waives any
objections to the commencement or continuation of a foreclosure of this Deed of
Trust or exercise of any other remedies hereunder based on such other
proceedings or judgments, and waives any right to seek to dismiss, stay, remove,
transfer or consolidate either any action under this Deed of Trust or such other
proceedings on such basis. The commencement or continuation of proceedings to
sell the Trust Property in a trustee's sale, to foreclose this Deed of Trust or
the exercise of any other rights hereunder or the recovery of any judgment by
Beneficiary or the occurrence of any sale by the Trustee in any such proceedings
shall not prejudice, limit or preclude Beneficiary's right in accordance with
the provisions of the Collateral Agency Agreement to commence or continue one or
more trustee's sales, foreclosure or other proceedings or obtain a judgment
against (or, in the case of a trustee's sale, to meet the statutory requirements
for, any such sale of) any other collateral (either in or outside the State in
which the Real Estate is located) which directly or indirectly secures the Note
Obligations, and Grantor expressly waives any objections to the commencement of,
continuation of, or entry of a judgment in such other sales or proceedings or
exercise of any remedies in such sales or proceedings based upon any action or
judgment connected to this Deed of Trust, and Grantor also waives any right to
seek to dismiss, stay, remove, transfer or consolidate either such other sales
or proceedings or any sale or action under this Deed of Trust on such basis. It
is expressly understood and agreed that to the fullest extent permitted by law
but in accordance with the provisions of the Collateral Agency Agreement,
Beneficiary may, at its election, cause the sale of all collateral which is the
subject of a single trustee's sale or foreclosure action at either a single sale
or at multiple sales conducted simultaneously and take such other measures as
are appropriate in order to effect the agreement
28
of the parties to dispose of and administer all collateral securing the
Indebtedness (directly or indirectly) in the most economical and least
time-consuming manner.
32. Expenses; Indemnification. (a) Grantor shall pay or
reimburse Trustee and Beneficiary for all reasonable expenses incurred by
Beneficiary or Trustee before and after the date of this Deed of Trust with
respect to any and all transactions contemplated by this Deed of Trust including
without limitation, the preparation of any document reasonably required
hereunder or any amendment, modification, restatement or supplement to this Deed
of Trust, the delivery of any consent, non-disturbance agreement or similar
document in connection with this Deed of Trust or the enforcement of any of
Beneficiary's or Trustee's rights. Such expenses shall include, without
limitation, all title and conveyancing charges, recording and filing fees and
taxes, mortgage taxes, intangible personal property taxes, escrow fees, revenue
and tax stamp expenses, insurance premiums (including title insurance premiums),
title search and title rundown charges, brokerage commissions, finders' fees,
placement fees, court costs, surveyors', photographers', appraisers',
architects', engineers', consulting professional's, accountants' and attorneys'
fees and disbursements. Grantor acknowledges that from time to time Grantor may
receive statements for such expenses, including without limitation attorneys'
fees and disbursements. Grantor shall pay such statements promptly upon receipt.
(b) If (i) any sale (or any prerequisite to a sale), action or
proceeding shall be commenced by Beneficiary or Trustee (including but not
limited to any sale of the Trust Property, or any action to foreclose this Deed
of Trust or to collect the Indebtedness), or any action or proceeding is
commenced to which Beneficiary or Trustee is made a party, or in which it
becomes necessary to defend or uphold the rights granted by this Deed of Trust
(including, without limitation, any proceeding or other action relating to the
bankruptcy, insolvency or reorganization of any Guarantor), or in which
Beneficiary or Trustee is served with any legal process, discovery notice or
subpoena and (ii) in each of the foregoing instances such action or proceeding
in any manner relates to or arises out of this Deed of Trust or Beneficiary's
lending to Grantor or any of the transactions contemplated by this Deed of
Trust, then Grantor will promptly reimburse or pay to Beneficiary and Trustee
all of the reasonable expenses which have been or may be incurred by Beneficiary
and Trustee, respectively, with respect to the foregoing (including reasonable
counsel fees and disbursements), together with interest thereon at the Default
Rate, and any such sum and the interest thereon shall be included in the Note
Obligations and have the full benefit of this Deed of Trust, prior to any right,
or title to, interest in or claim upon the Trust Property attaching or accruing
to this Deed of Trust, and shall be deemed to be secured by this Deed of Trust.
In any action or proceeding to sell the Trust Property, to foreclose this Deed
of Trust, or to recover or collect the Note Obligations, the provisions of law
respecting the recovering of costs, disbursements and allowances shall prevail
unaffected by this covenant.
(c) Grantor shall indemnify and hold harmless each of
Beneficiary and Trustee and each of their respective affiliates, and the
respective directors, officers, agents and employees of each of Beneficiary and
Trustee and each of their respective affiliates from and against all claims,
damages, losses and liabilities (including, without limitation, reasonable
attorneys' fees and expenses) arising out of or based upon any matter related to
this Deed of Trust, the Trust Property or the occupancy, ownership, maintenance
or management of the Trust Property by Grantor, including, without limitation,
any claims based on the alleged acts or omissions of any employee or agent of
Grantor, other than any such claims, damages, losses and
29
liabilities arising from the gross negligence, willful misconduct or bad faith
thereof. This indemnification shall be in addition to any other liability which
Grantor may otherwise have to Beneficiary or Trustee.
33. Successors and Assigns. All covenants of Grantor contained
in this Deed of Trust are imposed solely and exclusively for the benefit of
Beneficiary and Trustee and their respective successors and assigns, and no
other person or entity shall have standing to require compliance with such
covenants or be deemed, under any circumstances, to be a beneficiary of such
covenants, any or all of which may be freely waived in whole or in part by
Beneficiary or Trustee at any time if in the sole discretion of either of them
such waiver is deemed advisable. All such covenants of Grantor shall run with
the land and bind Grantor, the successors and assigns of Grantor (and each of
them) and all subsequent owners, encumbrancers and tenants of the Trust
Property, and shall inure to the benefit of the Controlling Collateral Agent,
Beneficiary, Trustee and their respective successors and assigns. Without
limiting the generality of the foregoing, any successor to Trustee appointed by
Beneficiary shall succeed to all rights of Trustee as if such successor had been
originally named as Trustee hereunder. The word "Grantor" shall be construed as
if it read "Grantors" whenever the sense of this Deed of Trust so requires and
if there shall be more than one Grantor, the obligations of Grantors shall be
joint and several.
34. No Waivers, etc. Any failure by Beneficiary to insist upon
the strict performance by Grantor of any of the terms and provisions of this
Deed of Trust shall not be deemed to be a waiver of any of the terms and
provisions hereof, and Beneficiary or Trustee, notwithstanding any such failure,
shall have the right thereafter to insist upon the strict performance by Grantor
of any and all of the terms and provisions of this Deed of Trust to be performed
by Grantor. Beneficiary may release, regardless of consideration and without the
necessity for any notice to or consent by the beneficiary of any subordinate
deed of trust or the holder of any subordinate lien on the Trust Property, any
part of the security held for the obligations secured by this Deed of Trust
without, as to the remainder of the security, in anywise impairing or affecting
this Deed of Trust or the priority of this Deed of Trust over any subordinate
lien or deed of trust.
35. Authority of Beneficiary. Grantor acknowledges that the
rights and responsibilities of Beneficiary under this Deed of Trust with respect
to any action taken by Beneficiary or the exercise or non-exercise by
Beneficiary of any right or remedy provided for herein or resulting or arising
out of this Deed of Trust shall, as between Beneficiary and the holders of the
Note Obligations, be governed by the Indenture, but, as between Beneficiary and
Grantor, Beneficiary shall be conclusively presumed to be acting with full and
valid authority so to act or refrain from acting, and Grantor shall be under no
obligation or entitlement to make any inquiry respecting such authority.
36. Governing Law, etc. This Deed of Trust shall be governed
by and construed in accordance with the laws of the State in which the Premises
are located, except that Grantor expressly acknowledges that by their respective
terms the Indenture and the Notes shall be governed and construed in accordance
with the laws of the State of New York, without regard to principles of conflict
of law, and for purposes of consistency, Grantor agrees that in any in personam
proceeding related to this Deed of Trust the rights of the parties to this Deed
of Trust
30
shall also be governed by and construed in accordance with the laws of the State
of New York governing contracts made and to be performed in that State, without
regard to principles of conflict of law.
37. Waiver of Trial by Jury. Grantor, Trustee and Beneficiary
each hereby irrevocably and unconditionally waive trial by jury in any action,
claim, suit or proceeding relating to this Deed of Trust and for any
counterclaim brought therein.
38. Certain Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Deed of Trust shall be used interchangeably in singular or plural form
and the word "Grantor" shall mean "each Grantor or any subsequent owner or
owners of the Trust Property or any part thereof or interest therein," the word
"Beneficiary" shall mean "Beneficiary or any subsequent collateral agent for the
holders of the Note Obligations pursuant to the Collateral Agency Agreement,"
the word "Trustee" shall mean "Trustee and any successor trustee hereunder," the
words "Controlling Collateral Agent" shall mean "Controlling Collateral Agent
and any subsequent collateral agent for the holders of the Secured Obligations,"
the word "person" shall include any individual, corporation, partnership, trust,
unincorporated association, government, governmental authority, or other entity,
and the words "Trust Property" shall include any portion of the Trust Property
or interest therein. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa. The
captions in this Deed of Trust are for convenience or reference only and in no
way limit or amplify the provisions hereof.
39. Receipt of Copy. Grantor acknowledges that it has received
a true copy of this Deed of Trust.
40. Release of Trust Property and Termination. Trust Property
shall be released from the Lien created hereby, and this Deed of Trust and all
obligations of Beneficiary and Grantor hereunder shall terminate, in accordance
with the provisions of Sections 8 and 10.6 of the Collateral Agency Agreement.
31
IN WITNESS WHEREOF, Grantor has caused this instrument to be
signed in its corporate name by its duly authorized officer by authority of its
Board of Directors on November 29, 2001, to be effective the day and year first
above written.
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, the undersigned, a Notary Public of the state and county
aforesaid, certify that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ personally came before me this day and
acknowledged that he is Vice President of REVLON CONSUMER PRODUCTS CORPORATION,
a corporation, and that (s)he, in that capacity, being authorized to do so,
executed the foregoing on behalf of the corporation.
WITNESS my hand and Notarial Seal this 29th day of November,
2001.
[NOTARY SEAL]
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Notary Public
My Commission Expires:
----------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in New York County
Commission Expires June 3, 2002
Schedule A
Description of the Premises
[Attach Legal Description of all parcels]
2
SCHEDULE A
All that certain tract or parcel of land lying and being in Granville County,
North Carolina and being more particularly described as follows:
Tract 1:
BEGINNING at a steel axle shaft set on a buried iron pipe in the North margin of
the right-of-way of U.S. Highway 158, the southeast corner of property now or
formerly owned by C. C. Speed, and run thence with Speed's line, North
10(degree)40'45" East 349.92 feet to an iron pipe, and North 79(degree)17'08"
West 425.00 feet to an axle marking the southeast corner of the property of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; thence with the eastern property line of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇(▇▇▇▇▇▇)▇▇'▇▇" ▇▇▇▇ 768.84 feet to an iron pipe, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇'▇
northeast corner; thence by new lines across the lands of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, III, et al., Trustees, North 07(degree)12'46" West 329.19 feet to a
steel axle, North 79(degree)46'45" East 500.73 feet to a steel axle, North
10(degree)13'15" West 30.00 feet to a steel axle, and North 79(degree)46'45"
East 1340.00 feet to a steel axle in the West property line of the ▇▇▇▇▇▇
Estate; thence with the West property line of the ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇(▇▇▇▇▇▇)▇▇'▇▇" ▇▇▇▇ 1890.00 feet to a steel axle set in the North margin of
the right-of-way of U.S. Highway 158; thence with the North Margin of the
right-of-way of U.S. Highway 58, South 72(degree)54'26" West 220.03 feet to an
iron pin, South 80(degree)35'12" West 259.95 feet to an iron pin, South
88(degree)28'12" West 251.14 feet to an iron pin, North 83(degree)19'59" West
272.10 feet to an iron pin, North 79(degree)20'10" West 91.00 feet to a steel
axle, South 10(degree)39'53" West 50.00 feet to a steel axle, and North
79(degree)20'08" West 574.10 feet to the point and place of BEGINNING,
containing 73.677 acres, more or less, according to plat and survey made by
Precision Surveys, Inc., and being that portion of the property shown on plat
recorded in Plat Book 8, Page 25, which lies outside of the right-of-way of U.S.
Highway 158.
Tract 2:
BEGINNING at a steel axle shaft set on a buried iron pipe in the North margin of
U.S. Highway 158, said Beginning point being the southeast corner of the
property now or formerly owned by C. C. Speed (said Beginning point being also
the identical Beginning point for Tract 1 above described), and run thence from
said Beginning point within the right-of-way of U.S. Highway 158, South
10(degree)40'45" West 50.00 feet to a point in the centerline of the paved
portion of ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇; thence along and with the centerline of the paved
portion of U.S. ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇)▇▇'▇▇" ▇▇▇▇ 574.11 feet to a point,
South 79(degree)20'10" East 94.49 feet to a point, South 83(degree)19'59" East
282.75 feet to a point, North 88(degree)28'12" East 265.20 feet to a point,
North 80(degree)35'12" East 273.55 feet to a point, and North 72(degree)54'15"
East 154.26 feet to a point in the center of the paved portion of U.S. Highway
158 near its intersection with N.C.S.R. #1602; thence continuing within the
right-of-way of U.S. Highway 158, North 10(degree)13'15" West 100.72 feet to a
point in the North margin of the right-of-way of U.S. Highway 158; thence with
the North margin of the right-of-way of U.S. Highway 158, South 72(degree)54'26"
West 159.60 feet to an iron pin, South 80(degree)35'12" West 259.95 feet to an
iron pin, South 88(degree)28'12" West 251.14 feet to an iron pin, North
83(degree)19'59" West 272.10 feet to an iron pin, North 79(degree)20'10" West
91.00 feet to a steel axle, South 10(degree)39'53" West 50.00 feet to a steel
axle, and North 79(degree)20'08" West 574.10 feet to the point and place of
BEGINNING, containing 3.074 acres, more or less, according to
3
plat and survey made by Precision Surveys, Inc., and being that portion of the
property shown on plat recorded in Plat Book 8, Page 25, Granville County
Registry, which lies within the right-of-way of U.S. Highway 158.
Tract 3:
BEGINNING at an iron pin set located in the northeast corner of property now or
formerly Max Factor Oxford Properties Company (DB 240, Page 331; PB 8, Page 25);
said iron pin set being in the western margin of the right-of-way of N.C.S.R.
1195 and being North 65(degree)57'42" West 3628.88 feet from N.C. Grid Station
"PASS" (NAD 27 Grid Coordinates, N=933,655.061', and E=2,134,544.882'); and from
said beginning along the northern margin of properties now or formerly Max
Factor Oxford Properties Company and along the northern margin of a 30 foot Wake
Electric Membership Cooperation Easement South 79(degree)46'45" West 1270.10
feet to an existing iron pin; thence South 10(degree)20'47" East 30.00 feet to
an existing iron pin; thence South 79(degree)46'39" West 500.73 feet to an
existing iron pin in the northeast corner of Lot 2; thence along the northern
margin of Lot 2 South 78(degree)51'30" West 979.47 feet to an iron pin set in
the east bank of Fishing Creek; thence along the meandering of Fishing Creek
along a traverse line along the east bank of Fishing Creek as follows: North
51(degree)52'12" West 61.62 feet to an iron pin set, North 79(degree)23'07" West
108.96 feet to an iron pin set, and North 26(degree)36'42" West 105.46 feet to
an iron pin set; thence along the meandering of the east prong of Fishing Creek
along traverse lines as follows: North 63(degree)09'50" East 46.29 feet to an
iron pin set, North 11(degree)21'32" West 81.35 feet to an iron pin set, North
14(degree)40'34" East 204.72 feet to an iron pin set, North 19(degree)15'47"
East 173.29 feet to an iron pin set, North 49(degree)10'08" East 88.76 feet to
an iron pin set, North 81(degree)21'29" East 80.47 feet to an iron pin set,
South 88(degree)53'22" East 442.66 feet to an iron pin set, South
68(degree)35'06" East 97.23 feet to an iron pin set, North 46(degree)37'28" East
75.27 feet to an iron pin set, North 35(degree)09'31" East 400.70 feet to an
iron pin set, and North 36(degree)58'08" East 287.41 feet to an iron pin set in
the line now or formerly ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, et al (DB 265, Page 228) Tract 7 (PB
3, Page 86); thence along the southern margin of Easton, et al, South
89(degree)15'23" East 1299.58 feet to an iron pin set located in the western
margin of the right-of-way of N.C.S.R. 1195; thence along the western margin of
the right-of-way of N.C.S.R. 1195 as follows: South 16(degree)30'10" East 22.05
feet to a right-of-way disk, South 34(degree)46'33" East 342.98 feet to a
right-of-way disk and along a curve bearing South 17(degree)47'40" East 416.83
feet, A= 417.22 feet and R= 2799.79 feet to the point and place of beginning,
containing 49.559 acres, computed to the centerline of Fishing Creek and the
east prong of Fishing Creek which are the actual property lines and being
designated as Tract 1 as per plat and survey of Precision Surveys, Inc., dated
January 30, 1995. For further reference see Deed Book 156, Page 594, Granville
County Registry.
THE FOREGOING THREE DESCRIPTIONS OF TRACTS 1, 2 AND 3 ARE ALSO MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEING all the property conveyed by Max Factor & Co., a Delaware Corporation to
Max Factor Oxford Properties Co., a Delaware Corporation as recorded in Deed
Book 240 Page 331 (see plat recorded in Map Book 8 Page 25), saving and
excepting the property conveyed by Almay, Inc., a North Carolina Corporation to
the Department of Transportation, an agency of the state of North Carolina in
Deed Book 585 Page 751. Also all the property conveyed by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, III, et al to Revlon Consumer Products Corporation, a Delaware
Corporation in Deed Book 666 Page 541 (see plat recorded in Map Book 17 Page
25), said property lying in Salem
4
Township, Granville County, North Carolina. BEGINNING for the same at an
existing iron pipe (EIP), said EIP being on the western right of way of U.S.
Route 158 Oxford Loop, said EIP also being located S 84(degree)27'02" W 3040.53
feet from the North Carolina Geodetic Survey Station "PASS", thence with the
said western right of way; S 21(degree)22'28" W 138.68 feet to an EIP on the
northern right of way of U.S. Route 158 Business, thence with said northern
right of way; N 72(degree)11'07" E 114.20 feet to a point, thence leaving said
right of way S 10(degree)11'31" E 100.72 feet to a point on the centerline of
U.S. Route 158 Business, thence along said centerline; S 72(degree)55'59" W
154.26 feet to a point, thence; S 80(degree)36'56" W 273.55 feet to a point,
thence; S 88(degree)29'56" W 266.20 feet to a point, thence; N 83(degree)17'15"
W 282.75 feet to a point, thence; N 79(degree)18'26" W 94.49 feet to a point,
thence; N 79(degree)18'00" W 573.54 feet to a point, thence; leaving said
centerline; N 10(degree)40'12" E 50.00 feet to an EIP on the northerly right of
way of U.S. Route 158 Business, thence along the line of ▇▇▇▇ ▇. Speed, III and
N/F ▇▇▇▇▇▇ Speed N 10(degree)40'12" E 350.05 feet to an EIP, thence continuing
along the line of Speed and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Deed Book 661 Page 597); N
79(degree)17'07" W 424.86 feet to an EIP at the common corner of said ▇▇▇▇▇▇▇
property, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Deed Book 208 Page 816) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(Deed Book 557 Page 393), thence with the said ▇▇▇▇▇▇▇ line; N 07(degree)13'14"
W 768.91 feet to an EIP marking the common corner of said ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ (Deed Book 666 Page 550, Map Book 17 Page 25) property, thence; with
said ▇▇▇▇▇▇▇ property; N 07(degree)10'03" W 329.16 feet to an EIP, thence; S
78(degree)52'43" W 979.41 feet to an EIP on the eastern bank of Fishing Creek,
thence leaving said ▇▇▇▇▇▇▇ property and following a traverse line on the
easterly and southerly bank of Fishing Creek and the East Prong of Fishing Creek
and the properties of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. (Deed Book 800 Page 321) and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, et al (Deed Book 265 Page 228, Map Book 3 Page 86); N
51(degree)50'28" W 61.62 feet to a point, thence; N 79(degree)21'23" W 108.96
feet to a point, thence; N 26(degree)34'58" W 105.46 feet to a point, thence; N
63(degree)11'34" E 46.29 feet to a point, thence; N 11(degree)19'48" W 81.35
feet to a point, thence; N 14(degree)42'18" E 204.72 feet to a point, thence; N
19(degree)17'31" E 173.29 feet to a point, thence; N 49(degree)11'52" E 88.76
feet to a point, thence; N 81(degree)23'13" E 80.47 feet to a point, thence; S
88(degree)51'38" E 442.66 feet to a point, thence; S 68(degree)33'22" E 97.23
feet to a point, thence; N 46(degree)39'12" E 75.27 feet to a point, thence; N
35(degree)09'56" E 400.60 feet to an EIP, thence; N 36(degree)59'25" E 287.42
feet to an EIP on the easterly bank of the East Prong of Fishing Creek, said EIP
also in the line of said Easton property, thence with the said Easton property;
S 89(degree)13'39" E 1299.52 feet to an EIP on the western right of way of U.S.
Route 158 Oxford Loop, thence with said western right of way; S 16(degree)38'02"
E 21.99 feet to an EIP, thence ; S 34(degree)43'52" E 342.93 feet to an EIP,
thence; along a curve deflecting to the right having a radius of 2799.79 feet,
an arc length of 477.91 feet and a chord bearing and chord of S 17(degree)10'11"
E 477.33 feet to an EIP, thence; S 05(degree)03'26" E 201.09 feet to an EIP,
thence; S 23(degree)10'33" E 111.24 feet to an EIP, thence; S 10(degree)09'54" E
799.99 feet to an EIP, thence; S 08(degree)51'55" E 200.06 feet to an EIP,
thence; S 03(degree)04'54" W 154.06 feet to an EIP, thence; S 10(degree)09'52" E
275.00 feet to the point of BEGINNING, containing 122.9627 acres of land as
computed to the centerline of the said creeks. Bearings are referenced to North
Carolina Grid, North American Datum 1983.
