EXHIBIT 10.3
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Hunton & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Suite 4100
Atlanta, Georgia 30308
Attn: X. Xxxxxx Xxxxxxxx, III
--------------------------------------------------------------------------------
SPACE ABOVE LINE FOR RECORDER'S USE
DEED OF TRUST, ASSIGNMENT OF RENTS
AND LEASES AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES AND SECURITY
AGREEMENT (this "Deed of Trust"), dated as of October 17, 2001, is made by CIDCO
INCORPORATED, a Delaware corporation whose address is 000 Xxxxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxxxxxxxxx 00000 ("Grantor"), to FIDELITY NATIONAL TITLE COMPANY
whose address is 0000 Xxxxx 0xx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 ("Trustee"),
for the use and benefit of EARTHLINK, INC., a Delaware corporation, whose
address is 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx X., Xxxxxxx, Xxxxxxx 00000
("Beneficiary"), and is executed pursuant to the Advance Agreement dated as of
the date of this Deed of Trust (such Advance Agreement, as it may from time to
time be supplemented, modified and amended, being referred to in this Deed of
Trust as the "Agreement"), the provisions of which are incorporated in this Deed
of Trust by reference. Capitalized terms used in this Deed of Trust and not
otherwise defined herein are used with the meanings set forth in the Agreement.
1. Grant in Trust and Security Agreement. FOR VALUABLE CONSIDERATION,
GRANTOR IRREVOCABLY GRANTS, TRANSFERS, MORTGAGES AND ASSIGNS TO TRUSTEE, IN
TRUST, WITH THE POWER OF SALE AND RIGHT OF ENTRY AND POSSESSION, IN THE
FOLLOWING PROPERTY (THE "TRUST PROPERTY"), SUBJECT ONLY TO THE PERMITTED PRIOR
EXCEPTIONS:
(a) the real property described in Exhibit "A" attached to this
Deed of Trust and incorporated in this Deed of Trust by reference (the
"Land");
(b) all buildings, structures and other improvements now or in the
future located or to be constructed on the Land (the "Improvements");
(c) all tenements, hereditaments, appurtenances, privileges and
other rights and interests now or in the future benefitting or
otherwise relating to the Land or the Improvements, including
easements, rights-of-way, development rights, mineral rights,
-1-
water rights and water stock (the "Appurtenances," and together with
the Land and the Improvements, the "Real Property");
(d) subject to the assignment to Beneficiary set forth in Section
3.8 below, all leases of the Trust Property ("Leases") and all rents,
issues, income, revenues, royalties and profits now or in the future
payable with respect to or otherwise derived from the Real Property or
the ownership, use, management, operation, leasing or occupancy of the
Real Property, including those past due and unpaid (the "Rents");
(e) all present and future right, title and interest of Grantor in
and to all inventory, equipment, fixtures and other goods (as those
terms are defined in the California Uniform Commercial Code (the
"UCC"), and whether existing now or in the future) now or in the future
located at, upon or about, or affixed or attached to or installed in,
the Real Property, or used or to be used in connection with or
otherwise relating to the Real Property or the ownership, use,
development, construction, maintenance, management, operation,
marketing, leasing or occupancy of the Real Property, including
furniture, furnishings, machinery, appliances, building materials and
supplies, generators, boilers, furnaces, water tanks, heating,
ventilating and air conditioning equipment and all other types of
tangible personal property of any kind or nature, and all accessories,
additions, attachments, parts, proceeds, products, repairs,
replacements and substitutions of or to any of such property (the
"Goods," and together with the Real Property, the "Property"); and
(f) all present and future right, title and interest of Grantor in
and to all accounts, general intangibles, chattel paper, deposit
accounts, money, instruments and documents (as those terms are defined
in the UCC) and all other agreements, obligations, rights and written
materials (in each case whether existing now or in the future) now or
in the future relating to or otherwise arising in connection with or
derived from the Property or any other part of the Trust Property or
the ownership, use, development, construction, maintenance, management,
operation, marketing, leasing, occupancy, sale or financing of the
Property or any other part of the Trust Property, including (i)
permits, approvals and other governmental authorizations, (ii)
improvement plans and specifications and architectural drawings, (iii)
agreements with contractors, subcontractors, suppliers, project
managers and supervisors, designers, architects, engineers, sales
agents, leasing agents, consultants and property managers, (iv) to the
extent assignable, takeout, refinancing and permanent loan commitments,
(v) to the extent assignable, warranties, guaranties, indemnities and
insurance policies (including insurance policies obtained in accordance
with the Agreement), together with insurance payments and unearned
insurance premiums, (vi) claims, demands, awards, settlements and other
payments arising or resulting from or otherwise relating to any
insurance or any loss or destruction of, injury or damage to, trespass
on or taking, condemnation (or conveyance in lieu of condemnation) or
public use of any of the Property, (vii) any cash collateral account
maintained pursuant to any of the Loan Documents, and any amounts
deposited by Grantor with Beneficiary which are to be held in any such
cash collateral account, (viii) leases, rental agreements, license
agreements, service and maintenance agreements, purchase and sale
agreements and purchase options, together with advance payments,
security deposits and other amounts paid to or deposited with Grantor
under any such
-2-
agreements, (ix) reserves, deposits, bonds, deferred payments, refunds,
rebates, discounts, cost savings, escrow proceeds, sale proceeds and
other rights to the payment of money, trade names, trademarks, goodwill
and all other types of intangible personal property of any kind or
nature, and (x) all supplements, modifications, amendments, renewals,
extensions, proceeds, replacements and substitutions of or to any of
such property (the "Intangibles," and together with the Appurtenances
and the Rents, the "Rights").
Grantor further grants to Beneficiary, pursuant to the UCC, a security
interest in all present and future right, title and interest of Grantor in and
to all Goods and Intangibles in which a security interest may be created under
the UCC (the "Personal Property").
TO HAVE AND TO HOLD the Trust Property and the rights and privileges
hereby granted onto Trustee, its successors and assigns for the uses and
purposes set forth, until the Secured Obligations are fully paid and performed,
or as otherwise provided below, at which time this Deed of Trust shall be void
and Beneficiary shall, at the request of Grantor, execute and deliver to Grantor
a release of this Deed of Trust.
2. Secured. This Deed of Trust is given for the purpose of securing
payment and performance of the following (the "Secured Obligations"): (a) all
present and future indebtedness incurred by Grantor under the Agreement in the
face principal amount of up to $5,000,000, including principal, interest and all
other amounts payable under the terms of the above-described Debt, (b) all
present and future obligations of Grantor under this Deed of Trust; (c) all
other present and future obligations of Grantor to Beneficiary under the
Agreement, the Security Agreement between the Grantor and Beneficiary dated on
or about the date hereof and all other agreements and instruments related
thereto (collectively, "Loan Documents"); and (d) all additional present and
future obligations of Grantor to Beneficiary under any other mortgage, deed of
trust, deed to secure debt, agreement or instrument (whether existing now or in
the future) securing the Debt under the Agreement; in each case as such
indebtedness and other obligations may from time to time be supplemented,
modified, amended, renewed and extended, whether evidenced by new or additional
documents or resulting in a change in the interest rate on any indebtedness or
otherwise.
3. Grantor's Covenants. To protect the security of this Deed of Trust,
Xxxxxxx agrees as follows:
3.1. Payment and Performance of Secured Obligations. Grantor shall pay
and perform all Secured Obligations in accordance with the respective terms of
such Secured Obligations, whether evidenced by or arising under this Deed of
Trust, the Note, any of the other Loan Documents or otherwise.
3.2. Maintenance of Trust Property. Unless Beneficiary otherwise
consents in writing, Grantor shall (a) keep the Property in good condition and
repair, repair or restore any part of the Real Property that may be injured,
damaged or destroyed, and in each case pay when due all valid claims for labor,
service, equipment and material and any other costs incurred in connection with
any such action, except that Grantor shall not be required to pay any such claim
or cost which is being actively contested in good faith by appropriate
proceedings, (b) not remove, demolish or materially alter any Improvements, (c)
not commit or permit any waste of
-3-
any part of the Real Property, (d) not permit or consent to any restriction that
would prevent or otherwise impair the use or development of the Real Property
for the purposes contemplated by the Agreement, (e) comply in all material
respects with all laws and other requirements, and not commit or permit any
material violation of any laws or other requirements, which affect any part of
the Trust Property or require any alterations or improvements to be made to any
part of the Real Property, (f) take such action from time to time as may be
reasonably necessary or appropriate, or as Beneficiary may reasonably require,
to protect the physical security of the Real Property, (g) except as otherwise
permitted by the Agreement, not part with possession of or abandon any part of
the Trust Property or cause or permit any interest in any part of the Trust
Property to be sold, transferred, leased, encumbered, released, relinquished,
terminated or otherwise disposed of (whether voluntarily, by operation of law or
otherwise), and (h) take all other action which may be reasonably necessary or
appropriate to preserve, maintain and protect the Trust Property, including the
enforcement or performance of any rights or obligations of Grantor or any
conditions with respect to any Rights.
Without limitation on any obligations of Grantor under the preceding
paragraph, in the event that (i) all or a substantial or material portion of the
Real Property is injured, damaged or destroyed by fire or other casualty, or
(ii) any of the Real Property is damaged, destroyed or lost and any Damage
Proceeds (as defined in Section 3.3) are payable as a result of such occurrence
and the cost of the repair, restoration or replacement is reasonably expected to
exceed $100,000.00 or (iii) any part (but less than all) of the Real Property is
condemned, seized or appropriated by any governmental agency (or conveyed, with
Beneficiary's consent, in lieu of any such action), the following additional
provisions shall apply:
(A) within 30 days (or such longer period as Beneficiary may
approve in writing) after the date of such injury, damage, destruction,
loss or other event, Grantor shall deliver to Beneficiary, in form and
substance reasonably satisfactory to Beneficiary: (1) a written plan
for the repair, restoration or replacement of the Real Property (any
such repair, restoration or replacement being referred to as a
"Restoration"), including the estimated cost of the Restoration and
time of completion, (2) if requested by Beneficiary, a copy of the
plans and specifications for the Restoration, and (3) such other
Documents and information relating to the Restoration as Beneficiary
may reasonably request;
(B) if and to the extent required by Beneficiary, any contracts
entered into by Grantor with architects, contractors, subcontractors or
suppliers in connection with the Restoration shall be in form and
substance and with a Person reasonably satisfactory to Beneficiary;
(C) the Restoration shall be conducted in accordance with such
procedures and requirements as Beneficiary may reasonably specify, and
shall be in substantial conformity with the applicable plans and
specifications and the plan referred to in paragraph (A) above and in
compliance in all material respects with all applicable laws and other
requirements;
(D) if Beneficiary reasonably determines at any time that any
available Damage Proceeds that Beneficiary may be required to release
to Grantor for the Restoration pursuant to Section 3.3 are or may be
insufficient to pay for all costs of
-4-
completing the Restoration, then Grantor shall deposit with
Beneficiary, on demand, an amount deemed reasonably necessary by
Beneficiary to cover such insufficiency (any such amount to be held and
disbursed by Beneficiary in accordance with paragraph (E) below); and
(E) any Damage Proceeds that Beneficiary may be required to
release to Grantor for the Restoration pursuant to Section 3.3,
together with any amounts deposited by Grantor with Beneficiary
pursuant to paragraph (D) above, shall be held by Beneficiary in a cash
collateral account (over which Beneficiary shall have sole and
exclusive control and right of withdrawal), shall be used solely to pay
the cost of the Restoration and shall be disbursed in accordance with
such terms, conditions and procedures as Beneficiary may reasonably
require (including compliance by Grantor with the provisions of
paragraphs (A) through (D) above), provided that (1) Beneficiary shall
have no obligation to disburse any such amounts if an Event of Default
has occurred and is continuing, and (2) if the amount of any such
Damage Proceeds received by Beneficiary exceeds the cost of completing
the Restoration, the excess may be applied by Beneficiary to the
Secured Obligations in such order and manner as Beneficiary may
determine or, at the option of Beneficiary, may be released to Grantor.
Any application or release of Damage Proceeds or additional amounts
deposited with Beneficiary pursuant to paragraph (D) above (whether under this
Section 3.2 or Section 3.3) shall not cure or waive any Event of Default or
notice of default or invalidate any act done pursuant to such notice.
Notwithstanding anything to the contrary contained in this Section 3.2,
so long as no Event of Default has occurred and is continuing, the Beneficiary
shall not take any action or require Grantor to take any action or prevent
Grantor from taking any action pursuant to this Section 3.2 that violates a
Lease so long as there is no default under such Lease.
3.3. Insurance; Condemnation and Damage Claims. Grantor shall maintain
fire and other insurance on the Real Property to the extent required by the
Agreement. All proceeds of any claim, demand, award, settlement or other payment
arising or resulting from or otherwise relating to any such insurance or any
loss or destruction of, injury or damage to, trespass on or taking, condemnation
(or conveyance in lieu of condemnation) or public use of any of the Real
Property (a "Damage Claim") are assigned and shall be payable and delivered to
Beneficiary (any such proceeds of any Damage Claim being referred to in this
Deed of Trust as "Damage Proceeds"); provided, however, that so long as no Event
of Default has occurred and is continuing, if the Damage Proceeds are less than
$100,000.00, Beneficiary shall pay over and deliver such Damage Proceeds to
Grantor for the Restoration of the Property subject to the provisions of Section
3.2, except that Beneficiary shall not be required to release such Damage
Proceeds (and may apply such Damage Proceeds to the Secured Obligations as set
forth above) to the extent that such Damage Proceeds relate to any condemnation,
seizure or other appropriation by any Governmental Agency of all of the Real
Property (including Damage Proceeds payable in lieu of any such action), and
Grantor shall use the Damage Proceeds for restoration as provided herein.
Grantor shall take all action reasonably necessary or required by Beneficiary in
order to protect Xxxxxxx's and Beneficiary's rights and interests with respect
to any Damage Claim, including the commencement of, appearance in and
prosecution of any
-5-
appropriate action or other proceeding, and Beneficiary may in its discretion
participate in any such action or proceeding at the expense of Grantor.
So long as no Event of Default has occurred and is continuing, Grantor
may settle, compromise or adjust any Damage Claim with the prior written consent
of Beneficiary (which shall not be unreasonably withheld, conditioned or
delayed). Upon the occurrence and during the continuance of any Event of
Default, Beneficiary shall have the sole right to settle, compromise or adjust
any Damage Claim in such manner as Beneficiary may determine, and for this
purpose Beneficiary may, in its own name or in the name of Grantor, take such
action as Beneficiary deems appropriate to realize on any such Damage Claim. In
either case, all Damage Proceeds payable in connection with any such Damage
Claim shall be delivered directly to Beneficiary as provided in the preceding
paragraph.
Any Damage Proceeds received by Beneficiary may be applied by
Beneficiary in payment of the Secured Obligations in such order and manner as
Beneficiary may determine; provided, however, that so long as no Event of
Default has occurred and is continuing, Beneficiary shall release such Damage
Proceeds to Grantor for the Restoration of the Real Property in the manner set
forth in Section 3.2, except that Beneficiary shall not be required to release
such Damage Proceeds (and may apply such Damage Proceeds to the Secured
Obligations as set forth above) to the extent that such Damage Proceeds relate
to any condemnation, seizure or other appropriation by any Governmental Agency
of all of the Real Property (including Damage Proceeds payable in lieu of any
such action), or if Beneficiary has reasonably determined that the Restoration
of the Property is not economically practicable or is not likely to be completed
prior to the Maturity Date.
3.4. Liens and Taxes. Subject to the right of Grantor to contest any
such payments in accordance with the terms of the Agreement, Grantor shall (a)
pay, prior to delinquency, all Taxes which are or may become a Lien affecting
any part of the Trust Property and not give its express consent or affirmative
vote to any Special Taxes which affect or may affect any of the Trust Property
without first obtaining Beneficiary's prior written consent, such consent not to
be unreasonably withheld, delayed or conditioned (but shall not be required to
contest the imposition of Special Taxes), (b) keep the Trust Property free and
clear of all Liens and Rights of Others, subject only to Permitted Exceptions
and Permitted Transfers, (c) diligently post and record notice of
nonresponsibility where appropriate, and (d) pay and perform when due all other
obligations secured by or constituting a Lien affecting any part of the Trust
Property, except that the Grantor shall not be required to pay or perform any
such Taxes, Liens or other obligations which arc being actively contested in
good faith by appropriate proceedings, provided that the Grantor has posted such
security for the payment or performance of such Taxes, Liens or other
obligations as any Governmental Agency may require, or, to the extent such
Taxes, Liens or other obligations exceed $50,000 in the aggregate, the
Beneficiary may reasonably require (not to exceed 100% of the potential
liability thereunder) and, by reason of nonpayment, none of the Collateral or
any Lien or other interest of the Beneficiary under this Deed of Trust or any of
the other Loan Documents is prejudiced or in danger of being sold, foreclosed or
otherwise lost or forfeited, and provided further that if any action or other
proceeding is instituted to enforce any Lien against any of the Collateral, the
Grantor shall immediately make such payments, obtain such surety bonds and/or
take such other action as the Beneficiary may reasonably require in order to
release such Lien.
-6-
3.5. Actions. Grantor shall appear in and defend any claim or any
action or other proceeding purporting to affect title or other interests
relating to any part of the Trust Property, the security of this Deed of Trust
or the rights or powers of Beneficiary or Trustee, and give Beneficiary and
Trustee prompt written notice of any such claim, action or proceeding.
Beneficiary may, at the expense of Grantor, appear in and defend any such claim,
action or proceeding and any claim, action or other proceeding asserted or
brought against Beneficiary in connection with or relating to any part of the
Trust Property or this Deed of Trust, and the Grantor shall take or cause to be
taken such further action and execute and deliver or cause to be executed and
delivered such further documents as Beneficiary or Trustee may, from time to
time, reasonably require to maintain, perfect, protect, assure and confirm the
Beneficiary's and Trustee's rights and interests (including rights and interests
in the Trust Property), the Grantor's Obligations and the interest of the
parties under this Deed of Trust.
3.6. Action By Beneficiary. If Grantor fails to perform any of its
obligations under Section 3.3 and 3.4 of this Deed of Trust, Beneficiary or
Trustee may, but without any obligation to do so and without notice to or demand
upon Grantor (except that Beneficiary or Trustee shall give Grantor fifteen (15)
business days notice if either believe such notice shall not impair their
interests hereunder) and without releasing Grantor from any obligations under
this Deed of Trust, and at the expense of Grantor: (a) perform such obligations
in such manner and to such extent and make such payments and take such other
action as Beneficiary or Trustee may deem necessary in order to protect the
security of this Deed of Trust, Beneficiary or Trustee being authorized to enter
upon the Real Property for such purposes, (b) appear in and defend any claim or
any action or other proceeding purporting to affect the priority of the Lien of
this Deed of Trust, the security of this Deed of Trust or the rights or powers
of Beneficiary or Trustee hereunder, and (c) pay, purchase, contest or
compromise any Lien or Right of Others which in the reasonable judgment of
Beneficiary or Trustee is or appears to be or may for any reason become prior or
superior to this Deed of Trust unless Grantor is actively contesting the same in
good faith by appropriate proceedings. If Beneficiary or Trustee shall elect to
pay any such Lien or Right of Others or any Taxes which are or may become a Lien
affecting any part of the Trust Property or make any other payments to protect
the security of this Deed of Trust, Beneficiary or Trustee may do so without
inquiring into the validity or enforceability of any apparent or threatened
Lien, Right of Others or Taxes, and may pay any such Taxes in reliance on
information from the appropriate taxing authority or public office without
further inquiry.
3.7. Obligations With Respect to Trust Property. Beneficiary and
Trustee shall be under no obligation to preserve, maintain or protect the Trust
Property or any of Grantor's rights or interests in the Trust Property, or make
or give any presentments, demands for performance, protests, notices of
nonperformance, protest or dishonor or other notices of any kind in connection
with any Rights, or take any other action with respect to any other matters
relating to the Trust Property. Beneficiary does not assume and shall have no
liability for, and shall not be obligated to perform, any of Grantor's
obligations with respect to any Rights or any other matters relating to the
Trust Property, and nothing contained in this Deed of Trust shall release
Grantor from any such obligations.
3.8. Assignment of Leases and Rents. Grantor irrevocably grants,
transfers and assigns to Beneficiary, during the continuance of this Deed of
Trust, all of Grantor's right, title and interest in and to the Leases and Rents
as further security for the payment and performance
-7-
of the Secured Obligations, and Grantor grants to Beneficiary the right 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 Secured
Obligations. The foregoing assignment and grant is present and absolute and
shall continue in effect until the Loan is paid in full or as otherwise provided
in the Agreement, but Beneficiary hereby waives 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 until the occurrence of an Event
of Default under this Deed of Trust; such right of Grantor to collect, receive,
use and retain the Rents may be revoked by Beneficiary upon the occurrence of
any Event of Default under this Deed of Trust by giving not less than five (5)
days written notice of such revocation to Grantor; in the event such notice is
given, Grantor shall 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 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 leases
specifically identified to Beneficiary, security deposits and estimated payments
of percentage rent, if any).
3.9. Default. Upon the occurrence of any Event of Default: (a) Grantor
shall be in default under this Deed of Trust, and upon acceleration of the
maturity of any Secured Obligations in accordance with the terms of the
Agreement, all Secured Obligations shall immediately become due and payable
without further notice to Grantor; (b) upon demand by Beneficiary, Grantor shall
pay to Beneficiary, in addition to all other payments specifically required
under the Loan Documents, in monthly installments, at the times and in the
amounts required by Beneficiary from time to time, sums which when cumulated
will be sufficient to pay one month prior to the time the same become
delinquent, all Taxes which are or may become a Lien affecting the Trust
Property and the premiums for any policies of insurance to be obtained under the
Agreement (all such payments to be held in a cash collateral account over which
Beneficiary shall have sole and exclusive control and right of withdrawal); and
(c) Beneficiary may, without notice to or demand upon Grantor, which are
expressly waived by Grantor (except for notices or demands otherwise required by
applicable laws to the extent not effectively waived by Grantor and any notices
or demands specified below), and without releasing Grantor from any of its
Obligations, exercise any one or more of the following Remedies as Beneficiary
may determine:
(i) Enter upon and take possession of the Trust Property or any
part thereof, with or without legal action, and do any acts which it
deems necessary or desirable to preserve the value, marketability or
rentability of the Trust Property, or any part thereof or the value of
this Deed of Trust (including, without limitation, entering into new
leases of all or any part of the Trust Property) and, with or without
taking possession of the Trust Property, sue for or otherwise collect
the rents, issues and profits thereof, including those past due and
unpaid, and apply the same, less costs and expenses of operation and
collection including reasonable attorneys' fees, upon the Indebtedness,
all in such order as Beneficiary may determine. The entering upon and
taking possession of the Trust
-8-
Property, the collection of such rents, issues and profits and the
application thereof as aforesaid, shall not cure or waive any default
or notice of default hereunder or invalidate any act done in response
to such default or pursuant to such notice of default and,
notwithstanding the continuance in possession of the Trust Property or
the collection, receipt and application of rents, issues or profits,
Beneficiary shall be entitled to exercise every right provided for in
any of the Loan Documents or by law.
(ii) Bring an action in any court of competent jurisdiction to
foreclose this Deed of Trust or to enforce any of the covenants, terms
or conditions hereof and Beneficiary shall have the right to specific
performance, injunction and any other equitable right or remedy as
though other remedies were not provided in this Deed of Trust.
(iii) Elect to cause the Trust Property or any part thereof to be
sold as follows, Grantor hereby expressly waiving any right which it
may have to direct the order in which any of the Trust Property may be
sold:
(a) Beneficiary may proceed as if all of the Trust Property
were real property, in accordance with subparagraph (c) below, or
Beneficiary may elect to treat any of the Trust Property which
consists of personal property separate and apart from the sale of
real property, the remainder of the Trust Property being treated
as real property,
(b) Beneficiary may cause any such sale or other disposition
to be conducted immediately following the expiration of any grace
period, if any, herein provided or Beneficiary may delay any such
sale or other disposition for such period of time as Beneficiary
deems to be in its best interest. Should Beneficiary desire that
more than one such sale or other disposition be conducted,
Beneficiary may, at its option, cause the same to be conducted
simultaneously, or successively on the same day, or at such
different days or times and in such order as Beneficiary may deem
to be in its best interest;
(c) Should Beneficiary elect to sell the Trust Property upon
which Beneficiary elects to proceed under the laws governing
foreclosure of or sales pursuant to Deeds of Trust, Beneficiary or
Trustee shall give such notice of default and election to sell as
may then be required by law. Thereafter, upon the expiration of
such time and the giving of such notice of sale as may then be
required by law, Trustee, at the time and place specified by the
notice of sale, shall sell such Trust Property, or any portion
thereof specified by Beneficiary, at public auction to the highest
bidder for cash in lawful money of the United States, subject,
however, to the Beneficiary's credit bid rights as provided below.
Trustee may, and upon request of Beneficiary shall, from time to
time, postpone the sale by public announcement thereof at the time
and place noticed therefor. If the Trust Property consists of
several lots or parcels, Beneficiary may elect to sell the Trust
Property either as a whole or in separate lots or parcels. If
Beneficiary elects to sell in separate lots or parcels,
Beneficiary may designate the order in which such lots or parcels
shall be offered for sale or sold. Any person, including
-9-
Grantor, Trustee or Beneficiary, may purchase at the sale. Upon
any sale, Trustee shall execute and deliver to the purchaser or
purchasers a deed or deeds conveying the property so sold, but
without any covenant or warranty whatsoever, express or implied,
whereupon such purchaser or purchasers shall be let into immediate
possession;
(d) In the event of a sale or other disposition of any such
property, or any part thereof, and the execution of a deed or
other conveyance pursuant thereto, the recitals therein of facts,
such as an Event of Default, the giving of notice of default and
notice of sale, demand that such sale should be made, postponement
of sale, terms of sale, sale, purchase, payments of purchase
money, and any other fact affecting the regularity or validity of
such sale or disposition shall be conclusive proof of the truth of
such facts; and any such deed or conveyance shall be conclusive
against all persons as to such facts recited therein; and
(e) Beneficiary and/or Trustee shall apply the proceeds of any
sale or disposition hereunder in the order provided below in this
Deed of Trust.
(iv) institute an action, suit or proceeding in equity for the
specific performance of any covenant, condition or agreement contained
herein, in the Agreement or the other Loan Documents;
(v) apply for the appointment of a receiver, liquidator or
conservator of the Trust Property, without notice and without regard
for the adequacy of the security for the Secured Obligations and
without regard for the solvency of the Grantor, any Guarantor or of any
Person, firm or other entity liable for the payment of the Secured
Obligations;
(vi) enforce Beneficiary's interest in the Leases and Rents and
enter into or upon the Trust Property, either personally or by its
agents, nominees or attorneys and dispossess Grantor and its agents and
servants therefrom, and thereupon Beneficiary may (A) use, operate,
manage, control, insure, maintain, repair, restore and otherwise deal
with all and every part of the Trust Property and conduct the business
thereat; (B) complete any construction on the Trust Property in such
manner and form as Beneficiary deems advisable; (C) make alterations,
additions, renewals, replacements and improvements to or on the Trust
Property; (D) exercise all rights and powers of Grantor with respect to
the Trust Property, whether in the name of Grantor or otherwise,
including, without limitation, the right to make, cancel, enforce or
modify Leases, obtain and evict lessees, and demand, sue for, collect
and receive all earnings, revenues, rents, issues profits and other
income of the Trust Property and every part thereof; and (E) apply the
receipts from the Trust Property to the payment of the Secured
Obligations, after deducting therefrom all expenses (including
reasonable attorneys' fees and disbursements) incurred in connection
with the aforesaid operations and all amounts necessary to pay the
taxes, assessments, insurance and other charges in connection with the
Trust Property, as well as just and reasonable compensation for the
services of Beneficiary, its counsel, agents and employees; and
-10-
(vii) pursue such other rights and remedies as may be available at
law or in equity or under the UCC.
In the event of a sale, by foreclosure or otherwise, of less than all
of the Trust Property, this Deed of Trust shall continue as a lien on the
remaining portion of the Trust Property.
All proceeds of collection, sale or other liquidation of the Trust
Property shall be applied first to all costs, fees, expenses and other amounts
(including interest) payable by Grantor under Section 3.10 of this Deed of Trust
and to all other Secured Obligations not otherwise repaid in such order and
manner as Beneficiary may determine, and the remainder, if any, to the person or
persons legally entitled thereto.
Each of the Remedies provided in this Deed of Trust is cumulative and
not exclusive of, and shall not prejudice, any other Remedy provided in this
Deed of Trust or by applicable laws or under any other Loan Document. Each
Remedy may be exercised from time to time as often as deemed necessary by
Beneficiary (or Trustee), and in such order and manner as Beneficiary (or
Trustee) may determine. This Deed of Trust is independent of any other security
for the Secured Obligations, and upon the occurrence of an Event of Default,
Beneficiary (or Trustee) may proceed in the enforcement of this Deed of Trust
independently of any other Remedy that Beneficiary (or Trustee) may at any time
hold with respect to the Trust Property or the Secured Obligations or any other
security. Grantor, for itself and for any other person claiming by or through
Grantor, waives, to the fullest extent permitted by applicable Laws, all rights
to require a marshalling of assets by Beneficiary (or Trustee) or to require
Beneficiary (or Trustee) to first resort to any particular portion of the Trust
Property or any other security (whether such portion shall have been retained or
conveyed by Grantor) before resorting to any other portion, and all rights of
redemption, stay and appraisal.
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 or under or by virtue of Section 2924
et. seq. of the California Civil Code, 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 upon the sums secured by
this Deed of Trust 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, the Agreement, 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 as having been paid.
3.10. Trustee's Powers and Liabilities.
(a) Powers of Trustee. At any time during an Event of Default,
without liability therefor and without notice, upon the written request of
Beneficiary and presentation of the Note and this Deed of Trust for endorsement,
without affecting the personal liability of any person for the payment of the
indebtedness secured hereby, and without affecting the lien of this Deed of
Trust upon the Trust Property for the full amount of all amounts secured hereby,
Trustee may (i) reconvey all or any part of the Trust Property, (ii) consent to
the making of any map or plat thereof, (iii) join in granting any easement
thereon or in creating any covenants or conditions
-11-
restricting use or occupancy thereof, or (iv) join in any extension agreement or
in any agreement subordinating the lien or charge hereof.
(b) Reconveyance. Upon written request of Xxxxxxxxxxx stating that
all sums secured hereby have been paid, and upon surrender of this Deed of Trust
to Trustee for cancellation and retention, and upon payment of its fees, Trustee
shall reconvey, without warranty, the property then held hereunder. The recitals
in any such reconveyance of any matters or facts shall be conclusive proof of
the truth thereof.
(c) Compensation and Indemnification of Trustee. Trustee shall be
entitled to reasonable compensation for all services rendered or expenses
incurred in the administration or execution of the trusts hereby created and
Grantor hereby agrees to pay the same. Trustee shall be indemnified, held
harmless and reimbursed by Grantor for any liability, damage or expense,
including reasonable attorneys' fees and amounts paid in settlement, which
Trustee may incur or sustain in connection with this Deed of Trust or in the
doing of any act which Trustee is required or permitted to do by the terms
hereof or by law.
(d) Substitute Trustees. Beneficiary may substitute the Trustee
hereunder in any manner now or hereafter provided by law, or in lieu thereof,
Beneficiary may from time to time, by an instrument in writing, substitute a
successor or successors to any Trustee named herein or acting hereunder, which
instrument, executed and acknowledged by Beneficiary and recorded in the office
of the recorder of the county or counties where the Trust Property is situated,
shall be conclusive proof of proper substitution of such successor Trustee or
Trustees, who shall thereupon, and without conveyance from the predecessor
Trustee, succeed to all its title, estate, rights, powers and duties. Such
instrument must contain the name of the original Grantor, Trustee and
Beneficiary hereunder, the book and page where this Deed of Trust is recorded,
the legal description of the Land and the name and address of the new Trustee.
(e) Acceptance by Trustee. The acceptance by Trustee of this trust
shall be evidenced when this Deed of Trust, duly executed and acknowledged, is
made a public record as provided by law.
(f) Trust Irrevocable; No Offset. The trust created hereby is
irrevocable by Grantor. No offset or claim that Grantor now or may in the future
have against Beneficiary shall relieve Grantor from paying installments or
performing any other obligation herein or secured hereby.
(g) Corrections. Grantor will, upon request of Beneficiary or
Trustee, promptly correct any defect, error or omission which may be discovered
in the contents of this Deed of Trust or in the execution or acknowledgment
hereof, and will execute, acknowledge and deliver such further instruments and
do such further acts as may be necessary or as may be reasonably requested by
Beneficiary or Trustee to carry out more effectively the purposes of this Deed
of Trust, to subject to the lien and security interests hereby created any of
Grantor's properties, rights or interest covered or intended to be covered
hereby, and to perfect and maintain such lien and security interest.
-12-
3.11. Costs, Fees and Expenses. Grantor shall pay, on demand, all
reasonable costs, fees, expenses, advances, charges, losses and liabilities of
Beneficiary under or in connection with this Deed of Trust or the enforcement
of, or the exercise of any Remedy or any other action taken by Beneficiary
under, this Deed of Trust or the collection of the Secured Obligations, in each
case including (a) reconveyance and foreclosure fees of Beneficiary, (b) costs
and expenses of Beneficiary or any receiver appointed under this Deed of Trust
in connection with the operation, maintenance, management, protection,
preservation, collection, sale or other liquidation of the Trust Property or
foreclosure of this Deed of Trust, (c) advances made by Beneficiary to complete
or partially construct all or any part of any construction which may have
commenced on the Land or otherwise to protect the security of this Deed of
Trust, (d) cost of evidence of title, and (e) the actual, reasonable fees and
disbursements of Beneficiary's legal counsel and other out-of-pocket expenses,
together with interest on all such amounts until paid at the applicable interest
rate under the Note.
3.12. Late Payments. By accepting payment of any part of the Secured
Obligations after its due date, Beneficiary does not waive its right either to
require prompt payment when due of all other Secured Obligations or to declare a
default for failure to so pay.
3.13. Remedies of Grantor. In the event that a claim or adjudication is
made that Beneficiary has acted unreasonably or unreasonably delayed acting in
any case where by law or under the Agreement, this Deed of Trust or the other
Loan Documents, it has an obligation to act reasonably or promptly, Beneficiary
shall not be liable for any monetary damages, and Xxxxxxx's remedies shall be
limited to injunctive relief or declaratory judgment.
3.14. Attorney-in-Fact. Grantor appoints Beneficiary as Xxxxxxx's
attorney-in-fact, with full authority in the place of Grantor and in the name of
Grantor or Beneficiary, to take such action and execute such documents as
Beneficiary may reasonably deem necessary or advisable in connection with the
exercise of any Remedies or any other action taken by Beneficiary under this
Deed of Trust after the occurrence and during the continuance of an Event of
Default.
3.15. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Beneficiary 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 the Secured 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, and 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 Beneficiary 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.
-13-
3.16. 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 of California.
If an Event of Default shall occur under this Deed of Trust, then
in addition to having any other right or remedy available at law
or in equity, Beneficiary 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
Beneficiary's rights, powers and remedies with respect to the real
property (in which event the default provisions of the Code shall
not apply). If Beneficiary shall elect to proceed under the Code,
then five 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
Beneficiary shall include, but not be limited to, attorneys' fees
and legal expenses. At Beneficiary's request, Grantor shall
assemble the personal property and make it available to
Beneficiary at a place designated by Beneficiary 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 the
applicable provision 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 the Deed of
Trust.
(C) Grantor, upon 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 Xxxxxxxxxxx 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. If Grantor shall fail to furnish any financing or
continuation statement within 10 days after request by
Beneficiary, then pursuant to the 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.
-14-
(D) Grantor agrees that this Deed of Trust covers certain goods and
materials which are or are to become related to or affixed on the
Real Estate, and therefore constitutes a "fixture filing" with
respect to such goods and materials. To the extent permitted by
applicable law, Xxxxxxx agrees that the filing of this Deed of
Trust in the relevant real estate records in which the Trust
Property is located shall operate as a fixture filing with respect
to all goods and materials constituting a part of the Trust
Property. For such purpose, the following information is set
forth:
(A) Name and Address of Grantor:
CIDCO INCORPORATED
000 Xxxxxxxx Xxxxxx
Morgan Hill, CA 95037
(B) Name and Address of Beneficiary:
EarthLink, Inc.
0000 Xxxxxxxxx Xx., 0 Xxxxx
Atlanta, GA 30309
3.17. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to be sufficiently given or
served when delivered in accordance with the provisions of the Agreement.
3.18. 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 Secured Obligations or the creation or
extension of a period of redemption form 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,
Xxxxxxx 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, xxxxxx xxxxxx and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of the Secured Obligations and marshalling in the event of
exercise by the Trustee or Beneficiary.
-15-
3.19. Governing Law, etc. This deed of trust shall be governed by and
construed in accordance with the laws of the State of California, except that
grantor expressly acknowledges that by its terms the note and the loan agreement
shall be governed and construed in accordance with the laws of the State of
Georgia, 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 shall also be
governed by and construed in accordance with the laws of the State of Georgia
governing contracts made and to be performed in that State, without regard to
principles of conflict of law.
3.20. Waiver of Trial by Jury. Xxxxxxx 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. Grantor hereby waives all rights to interpose any counterclaim in any
suit brought by Beneficiary hereunder and all rights to have any such suit
consolidated with any separate suit, action or proceeding.
3.21. Successors and Assigns. This Deed of Trust applies to and shall
be binding on and inure to the benefit of all parties to this Deed of Trust and
their respective successors and assigns.
3.22. Acceptance. Notice of acceptance of this Deed of Trust by
Beneficiary is waived by Grantor.
3.23. Request for Notice. Grantor requests that a copy of any notice of
default and a copy of any notice of sale be mailed to Grantor at Grantor's
address set forth above.
3.24. Request for Notice. In accordance with California Civil Code
Section 2924b, a request is hereby made by Grantor that a copy of any notice of
default and a copy of any notice of sale under this Deed of Trust be mailed to
Grantor at Grantor's address set forth in the first paragraph of this Deed of
Trust.
(SIGNATURES APPEAR ON FOLLOWING PAGE)
-16-
BORROWER:
CIDCO INCORPORATED
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name:
Title:
Signed, sealed and delivered in our
presence:
--------------------------------------
By:
--------------------------------------
By:
-17-
ACKNOWLEDGMENT
State of California )
) ss.
County of Santa Xxxxx )
On October 17, 2001 before me personally appeared Xxxx Xxxxxx Xxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and acknowledged
to me that he/she executed the same in his/her authorized capacity as the
Officer OF Cidco Incorporated, Grantor, and that by his/her signature on the
instrument of the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ Xxxxxx Xxxxxx-Xxxx
--------------------------------------
(SEAL)
Exhibit A
Real property situated in the State of California, City of Xxxxxx Xxxx, County
of Santa Xxxxx described as follows: Parcel 12, as shown on the parcel Map filed
August 27, 1986, in Book 564, pages 21 and 22, Records of Santa Xxxxx County.
