COVER
EXHIBIT D-4
FORM OF AMENDED AND RESTATED DEED OF TRUST
State: Site No(s).:
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AMENDED AND RESTATED DEED OF TRUST,
LEASEHOLD DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
Trustor: PAYLESS CASHWAYS, INC.
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Beneficiary: CANADIAN IMPERIAL BANK OF COMMERCE,
as Coordinating and Collateral Agent
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Trustee:
Deed of Trust
Amount: $500,000,000
Date: December 2, 1997
Premises:
Record and SHOOK, HARDY & BACON L.L.P.
Return to: 0000 Xxxx Xx., Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxx, Esq.
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AMENDED AND RESTATED DEED OF TRUST, LEASEHOLD DEED OF TRUST, SECURITY
AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING, dated as of
December 2, 1997, by and among PAYLESS CASHWAYS, INC., a Delaware corporation,
having an office at 0000 Xxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("Trustor"),
_______________________, a _____________ having an office at ____
_______________________ ("Trustee"), and CANADIAN IMPERIAL BANK OF COMMERCE, as
Coordinating and Collateral Agent under the Agreement (as hereinafter defined),
having an office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Beneficiary").
DEFINITIONS
Trustor and Beneficiary agree that all capitalized terms used but not
defined herein are defined in or by reference to the Agreement and shall have
the same meanings herein as therein. Trustor and Beneficiary further agree that,
unless the context otherwise specifies or requires, the following terms shall
have the meanings herein specified, such definitions to be applicable equally to
the singular and the plural forms of such terms.
"Agreement" means that certain Amended and Restated Credit Agreement dated
as of December 2, 1997, by and among Trustor, the signatory Lenders thereto, the
Underwriters, U.S. Bank National Association, as a Fronting Bank, and Canadian
Imperial Bank of Commerce, as a Fronting Bank and as Coordinating and Collateral
Agent for the Lenders, the Fronting Banks, the Underwriters and the other
Secured Parties, together with any future amendments, amendments and
restatements, extensions, modifications or supplements thereto or thereof.
"Bankruptcy Case" means In re Payless Cashways, Inc., Case No. 97-50543 in
the Bankruptcy Court.
"Bankruptcy Code" means 11 U.S.C. ss.101 et seq.
"Bankruptcy Court" means the United States Bankruptcy Court for the Western
District of Missouri.
"Bankruptcy Reorganization Plan" means Payless' plan of reorganization in
the Bankruptcy Case, as confirmed by the Bankruptcy Court.
"Deed of Trust" means this Deed of Trust, Leasehold Deed of Trust, Security
Agreement, Assignment of Leases and Rents and Fixture Filing together with any
future amendments, amendments and restatements, extensions, modifications or
supplements hereto or hereof.
"Deed of Trust Amount" means an aggregate principal amount outstanding at
any time not to exceed $500,000,000.
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"Default" means Default, as that term is defined in the Agreement.
"Default Rate" means the rate of interest specified in Section 2.8(a) of
the Agreement.
"DIP Agent" means the DIP Agent, as that term is defined in the Agreement.
"DIP Credit Agreement" means the Revolving Credit Agreement, dated as of
July 21, 1997, among Payless, as a Debtor-in-Possession, the Lenders, the
Underwriters and the Fronting Banks party thereto and Canadian Imperial Bank of
Commerce, as Coordinating and Collateral Agent, together with any amendments,
amendments and restatements, extensions, modifications or supplements thereto or
thereof prior to the date of the Agreement.
"DIP Obligations" means the DIP Obligations, as that term is defined in the
Agreement.
"Event of Default" means the events and circumstances described as such in
Article II hereof.
"Fixtures" means all of Trustor's right, title and interest in all
furniture, furnishings, partitions, screens, awnings, venetian blinds, window
shades, draperies, carpeting, pipes, ducts, conduits, dynamos, motors, engines,
compressors, generators, boilers, stokers, furnaces, pumps, tanks, elevators,
escalators, vacuum cleaning systems, call systems, switchboards, sprinkler
systems, fire prevention and extinguishing apparatus, refrigerating, air
conditioning, heating, dishwashing, plumbing, ventilating, gas, steam,
electrical and lighting fittings and fixtures, licenses or permits of any kind
and all building materials, equipment and goods now or hereafter delivered to
the Premises (hereinafter defined) and intended to be installed therein, and all
other machinery, fixtures, tools, implements, apparatus, appliances, equipment,
goods, facilities and other personal property of similar character in which
Trustor now has, or at any time hereafter acquires, an interest and which are
now or hereafter affixed or attached to, or used in connection with the
enjoyment, occupancy and/or operation of, all or any portion of the Premises,
together with all renewals, replacements and substitutions thereof and additions
and accessions thereto and the proceeds of all of the foregoing items.
"Fronting Banks" means the Fronting Banks, as that term is defined in the
Agreement.
"Improvements" means all buildings, structures and other improvements
presently existing or hereafter constructed on the land described in Exhibit A
attached hereto.
"Lease" has the meaning ascribed to such term in Section 3.01 hereof.
"Leasehold" has the meaning ascribed to such term in paragraph "F" of the
Granting Clause, below.
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"Leasehold Interest" has the meaning ascribed to such term in paragraph "F"
of the Granting Clause, below.
"Lenders" means the Lenders, as that term is defined in the Agreement.
"Lessee" has the meaning ascribed to such term in Section 3.01 hereof.
"LoanDocuments" means the Loan Documents, as that term is defined in the
Agreement.
"Loans" means the Loans, as that term is defined in the Agreement.
"Mortgaged Property" has the meaning ascribed to such term in the Granting
Clause, below.
"Notes" means the Notes, as that term is defined in the Agreement.
"Payless" means Payless Cashways, Inc., an Iowa corporation.
"Post-Petition Mortgage Liens" has the meaning ascribed to such term in the
fifth WHEREAS clause, below.
"Pre-Petition Agent" means the Pre-Petition Agent, as that term is defined
in the Agreement.
"Pre-Petition Credit Agreement" means the Amended and Restated Credit
Agreement dated as of October 3, 1996, by and among Payless, the lenders
signatory thereto, Canadian Imperial Bank of Commerce, as letter of credit bank
and as administrative and collateral agent, and The Bank of Nova Scotia,
NationsBank of Texas, N.A. and Bank of America National Trust and Savings, as
co-agents, together with any amendments, amendments and restatements,
extensions, modifications or supplements thereto or thereof prior to the date of
the Agreement.
"Pre-Petition Deed of Trust" has the meaning ascribed to such term in the
third WHEREAS clause, below.
"Pre-Petition Obligations" means the Pre-Petition Obligations, as that term
is defined in the Agreement.
"Premises" means the land described in Exhibit A annexed hereto, together
with the Improvements thereon or to be constructed thereon or therein, and all
of the easements, rights, privileges and appurtenances thereunto belonging or in
anywise appertaining thereto including, but not limited to, all of the estate,
right, title, interest, claim or demand whatsoever of Trustor therein and in and
to the strips and gores, streets and ways adjacent thereto, whether in law or in
equity, in
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possession or expectancy, now or hereafter acquired and also any other realty,
Leaseholds (hereinafter defined), or Fixtures encompassed by the term "Mortgaged
Property", elsewhere herein defined.
"Rents" has the meaning ascribed to such term in Section 3.01 hereof.
"Secured Obligations" has the meaning ascribed to such term in the
paragraph entitled "Secured Obligations" below.
"Secured Parties" means Secured Parties, as that term is defined in the
Agreement.
"Underwriters" means Underwriters, as that term is defined in the
Agreement.
W I T N E S S E T H :
WHEREAS, on July 21, 1997, Payless filed a voluntary petition of bankruptcy
under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court; and
WHEREAS, prior to the commencement of the Bankruptcy Case, Payless was
obligated to certain of the Lenders pursuant to, among other things, the
Pre-Petition Credit Agreement; and
WHEREAS, Payless' obligations under the Pre-Petition Credit Agreement and
the other Credit Documents (as defined in the Pre-Petition Credit Agreement)
were secured by, among other things, the following real property security
instruments (individually and collectively, the "Pre-Petition Deed of Trust"):
(a) the Deed of Trust, Leasehold Deed of Trust, Security Agreement and
Assignment of Leases and Rents, dated as of October 3, 1996, from Payless,
as trustor, to the trustee named therein, for the benefit of Canadian
Imperial Bank of Commerce, as administrative and collateral agent under the
Pre-Petition Credit Agreement, as beneficiary, and recorded __________,
1996, at Book ___, Page ____ of the real property records of _________
County, ___________; and
(b) the Deed of Trust, Leasehold Deed of Trust, Security Agreement and
Assignment of Leases and Rents, dated as of October 3, 1996, from Payless,
as trustor, to the trustee named therein, for the benefit of Canadian
Imperial Bank of Commerce, as administrative and collateral agent under the
Pre-Petition Credit Agreement, as beneficiary, and recorded __________,
1996, at Book ___, Page ____ of the real property records of _________
County, ___________; and
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(c) the Deed of Trust, Leasehold Deed of Trust, Security Agreement and
Assignment of Leases and Rents, dated as of October 3, 1996, from Payless,
as trustor, to the trustee named therein, for the benefit of Canadian
Imperial Bank of Commerce, as administrative and collateral agent under the
Pre-Petition Credit Agreement, as beneficiary, and recorded __________,
1996, at Book ___, Page ____ of the real property records of _________
County, ___________; and
(d) the Deed of Trust, Leasehold Deed of Trust, Security Agreement and
Assignment of Leases and Rents, dated as of October 3, 1996, from Payless,
as trustor, to the trustee named therein, for the benefit of Canadian
Imperial Bank of Commerce, as administrative and collateral agent under the
Pre-Petition Credit Agreement, as beneficiary, and recorded __________,
1996, at Book ___, Page ____ of the real property records of _________
County, ___________; and
WHEREAS, during the Bankruptcy Case, Payless became obligated to certain of
the Lenders pursuant to the DIP Credit Agreement; and
WHEREAS, pursuant to the orders of the Bankruptcy Court entered on July 21,
1997 and August 20, 1997 in the Bankruptcy Case, the DIP Agent and the
Pre-Petition Agent were granted liens (the "Post-Petition Mortgage Liens") on
the Mortgaged Property to secure the Pre-Petition Obligations and the DIP
Obligations; and
WHEREAS, as contemplated by Payless' Bankruptcy Reorganization Plan,
Payless has merged with and into Trustor, with Trustor being the sole surviving
entity; and
WHEREAS, Canadian Imperial Bank of Commerce, the Coordinating and
Collateral Agent under the Agreement and this Deed of Trust, is the same legal
entity as Canadian Imperial Bank of Commerce, New York Agency, the
administrative and collateral agent under the Pre-Petition Credit Agreement and
the Pre-Petition Deed of Trust; and
WHEREAS, pursuant to the terms of the Bankruptcy Reorganization Plan and
the Agreement, the parties have agreed to amend and restate the Pre-Petition
Deed of Trust pursuant to this Deed of Trust in order, among other things, (i)
to reflect the merger of Payless into Trustor, (ii) to secure various
obligations of Trustor (as Payless' successor) in respect of the Pre-Petition
Obligations and the DIP Obligations, and (iii) without duplication, to secure
all obligations, whether now existing or hereafter incurred or arising, of
Trustor under the Agreement, the Notes and/or the other Loan Documents,
including, without limitation, the Secured Obligations; in each case as more
particularly set forth in the Agreement and this Deed of Trust; and
WHEREAS, Trustor is the actual, record and beneficial owner of the Premises
or owns an actual beneficial interest therein; and
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WHEREAS, Trustor has agreed pursuant to the terms of the Agreement, the
Notes, and/or the other Loan Documents evidencing the Secured Obligations to be
liable for the Secured Obligations; and
WHEREAS, the parties intend that the Secured Obligations shall be secured
by this Deed of Trust;
GRANTING CLAUSE
NOW, THEREFORE, Trustor, in consideration of the premises, and in order to
secure the payment in full of the Deed of Trust Amount, the Secured Obligations,
all interest due thereon and all other costs and expenses and other amounts due
hereunder and in respect of the Secured Obligations, and the performance and
discharge of all the provisions hereof, of the Secured Obligations and all other
Loan Documents, hereby gives, grants, bargains, sells, conveys, pledges and
grants a security interest to Trustee in trust, with power of sale for the
benefit of Beneficiary, all of Trustor's estate, right, title and interest in,
to and under any and all of the following described property whether now owned
or hereafter acquired (all such properties being collectively referred to as the
"Mortgaged Property"):
A. All Trustor's right, title and interest in and to the Premises and all
right, title and interest of Trustor in and to the Improvements on the Premises
or to be constructed thereon and all Fixtures now or hereafter situated in, on
or about, or affixed or attached to the Improvements or the Premises or any
building, structure or other improvement now or hereafter standing, constructed
or placed upon or within the Premises, and all and singular the tenements,
hereditaments, easements, rights-of-way or use, rights, privileges and
appurtenances to the Premises, now or hereafter belonging or in anywise
appertaining thereto, including, without limitation, any such right, title,
interest, claim and demand in, to and under any agreement granting, conveying or
creating, for the benefit of the Premises, any easement, right or license in any
way affecting other property and in, to and under any streets, ways, alleys,
vaults, gores or strips of land adjoining the Premises, or any parcel thereof,
and all claims or demands either in law or in equity, in possession or
expectancy, of, in and to the Premises.
B. All right, title and interest of Trustor in and to all awards heretofore
made or hereafter to be made for the taking by eminent domain of the whole or
any part of the above described premises, or any estate or easement therein,
including any awards for change of grade of streets, all of which awards are
hereby assigned to Trustee and Beneficiary, which Trustee and Beneficiary are
hereby authorized to collect (unless provided otherwise in the Agreement) and
receive the proceeds of such awards and to give proper receipts and acquittances
therefor and Trustee and Beneficiary shall have the right and option to apply
such excess towards the payment of any sum owing on account of this Deed of
Trust and the Secured Obligations secured thereby, notwithstanding the fact that
such sum may not then be due and payable.
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C. The Fixtures and the products and proceeds thereof.
D. All present and future leases, subleases and licenses and any guarantees
thereof, rents, issues and profits and additional rents now or at any time
hereafter covering or affecting all or any portion of the Mortgaged Property and
all proceeds of, and all privileges and appurtenances belonging or in any way
appertaining to, the Mortgaged Property, or any part thereof, and all other
property subjected or required to be subjected to the lien and/or security
interest of or conveyed pursuant to the terms of this Deed of Trust, including,
without limitation, all of the income, revenues, earnings, rents, maintenance
payments, tolls, issues, awards (including, without limitation, condemnation
awards and insurance proceeds), products and profits thereof, which income,
revenues, earnings, rents, maintenance payments, tolls, issues, awards, products
and profits are hereby expressly assigned with the right to take and collect the
same upon the terms hereinafter set forth; and all the estate, right, title,
interest and claim whatsoever, at law and in equity, which Trustor now has or
may hereafter acquire in and to the aforementioned property and every part
thereof; provided, that so long as no Event of Default (as hereinafter defined)
shall have occurred and be continuing, all such income, revenues, earnings,
rents, maintenance payments, tolls, issues, awards, products and profits shall
remain with and under the control of Trustor except as otherwise expressly
provided herein or in any other written agreement between Trustor and
Beneficiary.
E. All right, title and interest of Trustor in and to all agreements, or
contracts, now or hereafter entered into for the sale, leasing, brokerage,
development, construction, renovation, management, maintenance and/or operation
of the Premises (or any part thereof), including all moneys due and to become
due thereunder, and all permits, licenses, bonds, insurance policies, plans and
specifications relative to the construction and/or operation of the Improvements
upon the Mortgaged Property.
F. All right, title and interest (including, without limitation, all
present and future rights to possession and use, and all present and future
options and other rights to renew and to purchase) of Trustor, as lessee or
sublessee, under any leases, subleases, licenses, occupancy agreements or
concessions now in effect or to be entered into hereafter (collectively, the
"Leasehold Instruments") whereby Trustor has any right to the use, possession or
occupancy of the Premises or any part thereof (collectively, the "Leaseholds").
G. All of Trustor's claims and rights to the payment of damages arising
from any rejection of a Leasehold or a Lease under or pursuant to the Bankruptcy
Code.
H. All of Trustor's rights and remedies at any time arising under or
pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. ss.365(h),
including, without limitation, all of Trustor's rights to remain in possession
of the Premises.
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I. Any other property and rights which are, by the provisions of the
Agreement or any other Loan Document, required to be subject to the lien hereof
or conveyed pursuant to the terms hereof, and any additional property and rights
that may from time to time hereafter by installation in or on the Mortgaged
Property, or by writing of any kind, or otherwise, be subjected to the lien
hereof by Trustor or by anyone on its behalf.
J. All proceeds of the conversion, voluntary or involuntary, of any of the
foregoing into cash or liquidated claims, including, without limitation,
proceeds of insurance and condemnation awards, and all right, title and interest
of Trustor in and to all unearned premiums accrued, accruing and to accrue under
any or all insurance policies obtained by Trustor.
TO HAVE AND TO HOLD the Mortgaged Property, unto Trustee for the benefit of
Beneficiary and its successors and assigns, upon the terms, provisions and
conditions herein set forth, forever, and Trustor does hereby bind itself and
its successors, legal representatives, and assigns to warrant and forever defend
all and singular the Mortgaged Property unto Beneficiary and Trustee and their
successors and assigns, against every person whomsoever lawfully claiming or to
claim the same or any part thereof.
IN TRUST, to secure the payment and performance of the Secured Obligations,
whereupon this Deed of Trust shall cease and be void and the Mortgaged Property
shall be released at the cost of Trustor.
SECURED OBLIGATIONS
This Deed of Trust, and all rights, titles, interests, liens, security
interests, powers, privileges and remedies created hereby or arising hereunder
or by virtue hereof, are given to secure the payment and performance of all
indebtedness, obligations and liabilities arising under the Notes, the
Agreement, this Deed of Trust and any other Loan Document, and any renewals,
extensions, amendments, amendments and restatements, supplements or
modifications thereof or thereto, howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, now or hereafter existing or
due or to become due, and any and all fees, costs or expenses incurred by
Beneficiary or the other Secured Parties or Trustee, including, but not limited
to, interest accruing at the then applicable rate provided in the Agreement
after the maturity of the Loans and interest accruing at the then applicable
rate provided in the Agreement or other applicable agreement after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Trustor on the Loans and on
all other obligations of the Trustor to the Secured Parties, taxes, recording
expenses and attorneys' fees in connection with the execution and delivery of
any of the aforesaid and the consummation of the transactions contemplated
thereby, the administration thereof, and, after Default, the administration and
collection thereof, all costs incurred of whatever nature by Beneficiary and
Trustee in the exercise of any rights hereunder or under any Loan Document and
all other amounts payable by Trustor under this Deed of Trust (all
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of the foregoing indebtedness, obligations and liabilities being referred to
herein as the "Secured Obligations").
ARTICLE I
PARTICULAR WARRANTIES, REPRESENTATIONS
AND COVENANTS OF TRUSTOR
Section 1.01 Warranties and Representations. Trustor hereby warrants and
represents as follows:
(a) Trustor is the actual, record and beneficial owner of the Premises
and holder of a good and marketable title to an indefeasible leasehold estate in
the Leaseholds or owns an actual beneficial interest therein and fee estate in
the rest of the Mortgaged Property, subject only to such exceptions to title as
are listed in the title policy insuring the lien of this Deed of Trust and
approved by Beneficiary as permitted exceptions. Trustor is the owner of all of
the remaining Mortgaged Property; Trustor will own the Fixtures free and clear
of liens and claims except those in favor of Beneficiary; and this Deed of Trust
is and will remain a valid and enforceable first lien on the Mortgaged Property
subject only to the permitted exceptions referred to above.
(b) Trustor has full power and lawful authority to convey, pledge and
encumber the Mortgaged Property in the manner and form herein done or intended
hereafter to be done. Trustor will preserve such title, and will forever warrant
and defend the validity and priority of the lien hereof, against the claims of
all persons and parties whomsoever.
(c) Except as otherwise specified in the Title Policy (as defined in
the Agreement) or in the Survey (as defined in the Agreement), the Premises is
not located in an area identified by the Secretary of Housing and Urban
Development as an area having special flood hazards or if it so located, flood
insurance acceptable to Beneficiary has been obtained.
Section 1.02 Further Assurances. Trustor will, at its sole expense, do,
execute, acknowledge and deliver every further act, deed, conveyance, mortgage,
assignment, notice of assignment, transfer or assurance as Beneficiary shall
from time to time reasonably require, for the better assuring, conveying,
assigning, transferring and confirming unto Beneficiary the property and rights
hereby conveyed, mortgaged or assigned or intended now or hereafter so to be, or
which Trustor may be or may hereafter become bound to convey, mortgage or assign
to Trustee or Beneficiary or for carrying out the intention or facilitating the
performance of the terms of this Deed of Trust, and for filing, registering or
recording this Deed of Trust and, on demand, will execute and deliver, and
hereby authorizes Beneficiary or Trustee to execute in the name of Trustor to
the extent it may lawfully do so, one or more financing statements, chattel
mortgages or comparable security instruments, and renewals thereof, to evidence
more effectively the lien hereof upon the Fixtures.
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Section 1.03 Filings, Recordings and Payments. (a) Trustor forthwith upon
the execution of this Deed of Trust, and thereafter from time to time, will, at
its expense, cause this Deed of Trust and any security instrument creating a
lien or evidencing the lien hereof upon the Fixtures and each instrument of
further assurance to be filed, registered or recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien hereof upon, and the interest of Trustee
and Beneficiary in, the Mortgaged Property.
(b) Trustor will pay all taxes, filing, registration and recording
fees, and all expenses incident to the execution and acknowledgment of this Deed
of Trust, any supplemental deed of trust, any other Loan Document, and any
security instrument with respect to the Fixtures, and any instrument of further
assurance, and all federal, state, county and municipal stamp taxes and other
taxes, duties, imposts, assessments and charges arising out of or in connection
with the execution and delivery of the Agreement, this Deed of Trust, any
supplemental deed of trust, any other Loan Document, any security instrument
with respect to the Fixtures or any instrument or further assurance, other than
income, franchise or other similar taxes imposed on Beneficiary in respect of
income derived by Beneficiary under the Secured Obligations.
Section 1.04 Payment of Sums Due. Trustor will punctually pay the principal
and interest and all other sums to become due in respect of the Agreement and
any other Loan Document at the time and place and in the manner specified in the
Agreement and any other Loan Document, according to the true intent and meaning
thereof and without offset, counterclaim, defense or cause of action of any kind
whatsoever, and without deduction or credit for any amount payable for taxes,
all in immediately available funds in Dollars.
Section 1.05 After Acquired Property. All right, title and interest of
Trustor in and to all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and appurtenances to, the
Mortgaged Property, hereafter acquired by or released to Trustor or constructed,
assembled or placed by Trustor on the Premises, and all conversions of the
security constituted thereby, immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case may be, and in
each such case, without any further mortgage, conveyance, assignment or other
act by Trustor, shall become subject to the lien of this Deed of Trust as fully
and completely, and with the same effect, as though now owned by Trustor and
specifically described in the granting clauses hereof, but at any and all times
Trustor will execute and deliver to Beneficiary any and all such further
assurances, mortgages, deeds of trust, conveyances or assignments thereof as
Beneficiary may reasonably require for the purpose of expressing and
specifically subjecting the same to the lien of this Deed of Trust.
Section 1.06 Taxes, Fees and Other Charges. (a) Trustor, from time to time
when the same shall become due, and prior to the date of imposition of interest
or penalty (except as otherwise permitted in the Agreement), will pay and
discharge, or cause to be paid and discharged, all taxes of every kind and
nature (including real and personal property taxes and income, franchise,
withhold-
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ing, transfer or recordation taxes, profits and gross receipt taxes), all
general and special assessments, levies, permits, inspection and license fees,
all water and sewer rents and charges, and all other public charges, whether of
a like or different nature, imposed upon or assessed against it or the Mortgaged
Property or any part thereof or upon the revenues, rents, issues, income and
profits of the Premises or arising in respect of the occupancy, use or
possession thereof. Trustor will, at any time upon request by Beneficiary,
promptly deliver to Beneficiary receipts evidencing the payment of same.
Upon the occurrence of an Event of Default under the Agreement, Beneficiary
may, at any time and from time to time, at its option, to be exercised by
written notice to Trustor, require the deposit by Trustor at the time of each
payment of an installment of interest or principal under the Agreement of an
additional amount sufficient to discharge the obligations under this subsection
(a) when they become due. The determination of the amount so payable and of the
fractional part thereof to be deposited with Beneficiary, so that the aggregate
of such deposit shall be sufficient for this purpose, shall be made by
Beneficiary in its sole discretion. Such amounts shall be held by Beneficiary
without interest in an account acceptable to Beneficiary and applied to the
payment of the obligations in respect to which such amounts were deposited or,
at the option of Beneficiary and subject to applicable law, to the payment of
the Secured Obligations in such order or priority as Beneficiary shall determine
consistent with the Agreement, on or before the respective dates on which the
same or any of them would become delinquent. If one month prior to the due date
of any of the obligations under this subsection (a) the amounts then on deposit
therefor shall be insufficient for the payment of such obligations in full,
Trustor within ten (10) days after demand shall deposit the amount of the
deficiency with Beneficiary. Nothing herein contained shall be deemed to affect
any right or remedy of Beneficiary under the provisions of this Deed of Trust or
of any statute or rule of law to pay any such amount and to add the amount so
paid together with interest at the Default Rate to the indebtedness hereby
secured.
(b) Except as otherwise permitted in the Agreement, Trustor will pay,
from time to time when the same shall become due, all lawful claims and demands
of mechanics, materialmen, laborers, and others which, if unpaid, might result
in, or permit the creation of, a lien on the Mortgaged Property or any part
thereof, or on the revenues, rents, issues, income and profits arising therefrom
and in general will do or cause to be done everything necessary so that the lien
hereof shall be fully preserved, at the cost of Trustor, without expense to
Beneficiary.
Section 1.07 Intentionally Deleted.
Section 1.08 Insurance. (a) Trustor agrees to at all times provide,
maintain and keep in force the policies of insurance required to the maintained
pursuant to the terms of the Agreement.
(b) In the event Trustor fails to provide, maintain, keep in force or
deliver and furnish to Beneficiary the policies of insurance required by the
Agreement or this Deed of Trust, Beneficiary
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may procure such insurance or single-interest insurance for such risks covering
Beneficiary's interest, and Trustor will pay all premiums thereon promptly upon
demand by Beneficiary, and until such payment is made by Trustor the amount of
all such premiums, together with interest thereon at the Default Rate shall be
secured by this Deed of Trust.
(c) After the happening of any casualty to the Mortgaged Property or
any part thereof, Trustor shall give prompt written notice thereof to
Beneficiary, and Beneficiary may make proof of loss if not made promptly by
Trustor. In the event of such loss or damage, all proceeds of insurance shall be
payable in the manner provided for in the Agreement. Unless otherwise provided
in the Agreement, nothing herein contained shall be deemed to excuse Trustor
from repairing or maintaining the Premises as provided in Section 1.12 hereof or
restoring all damage or destruction to the Mortgaged Property, regardless of
whether or not there are insurance proceeds available or whether any such
proceeds are sufficient in amount, and the application or release by Beneficiary
of any insurance proceeds shall not cure or waive any Default or notice of
Default under this Deed of Trust or invalidate any act done pursuant to such
notice. Any monies received as payment for loss under any insurance shall be
applied pursuant to the terms of the Agreement.
(d) In the event of foreclosure of this Deed of Trust or other
transfer of title or assignment of the Premises in extinguishment, in whole or
in part, of the debt secured hereby, all right, title and interest of Trustor in
and to all policies of insurance required by this Section 1.08 shall inure to
the benefit of and pass to the successor in interest to Trustor or the purchaser
or grantee of the Premises.
(e) Trustor shall not take out separate insurance concurrent in form
or contributing in the event of loss with that required to be maintained under
this Section 1.08, unless Beneficiary has approved the insurance company and the
form and content of the insurance policy, including, without limitation, the
naming thereon of Beneficiary as a named insured with loss payable to
Beneficiary under a standard mortgagee endorsement of the character above
described and the inclusion of a provision therein obligating said insurance
company to provide Beneficiary with notice thirty (30) days prior to
cancellation, lapse or amendment of any policy. Trustor shall immediately notify
Beneficiary whenever any such separate insurance is taken out and shall promptly
deliver to Beneficiary the policy or policies of such insurance.
(f) Beneficiary may at any time following the occurrence of an Event
of Default under the Agreement, at its option, to be exercised by written notice
to Trustor, require the deposit by Trustor, at the time of each payment of an
installment of interest or principal under the Agreement, of an additional
amount sufficient to discharge the obligations under this Section 1.08 when they
become due. The determination of the amount so payable and of the fractional
part thereof to be deposited with Beneficiary with each installment, so that the
aggregate of such deposit shall be sufficient for this purpose, shall be made by
Beneficiary in its sole discretion. Such amounts shall be held by Beneficiary
without interest in an account acceptable to Beneficiary and applied to the
payment of the obligations in respect of which such amounts were deposited on or
before the respective
13
dates on which the same or any of them would become delinquent or, at the option
of Beneficiary, to the payment of the Secured Obligations in such order or
priority as Beneficiary shall determine consistent with the Agreement. If one
month prior to the due date of any of the aforementioned obligations the amounts
then on deposit therefor shall be insufficient for the payment of such
obligations in full, Trustor within five (5) days after demand shall deposit the
amount of the deficiency with Beneficiary. Nothing herein contained shall be
deemed to affect any right or remedy of Beneficiary under the provisions of this
Deed of Trust or of any statute or rule of law to pay any such amount and to add
the amount so paid together with interest at the Default Rate to the
indebtedness hereby secured.
Section 1.09 Condemnation. (a) In the event the Mortgaged Property or any
part thereof or interest therein, shall be taken or damaged by eminent domain,
alteration of the grade of any street, or there shall occur any other injury to
or decrease in the value of the Mortgaged Property, by reason of any public or
quasi-public improvement or condemnation proceeding, or in any other similar
manner ("Condemnation"), or should Trustor receive any notice or other
information regarding such Condemnation or a proposed Condemnation, Trustor
shall give prompt written notice thereof to Beneficiary.
(b) All compensation, awards and other payments or relief payable as a
result of any such Condemnation, shall be payable in the manner provided for in
the Agreement. All such compensation, awards, damages, rights of action and
proceeds awarded to Trustor (the "Proceeds") are hereby assigned to Beneficiary
and Trustor agrees to execute such further assignments of the Proceeds as
Beneficiary may require. Beneficiary shall be under no obligation to question
the amount of any such award or compensation and may accept the same in the
amount paid. All Proceeds may be applied either against the Secured Obligations
(in such order and priority as Beneficiary shall determine consistent with the
Agreement) or to restore the Premises, at the discretion of Beneficiary, except
as may be otherwise provided in the Agreement.
(c) Unless otherwise provided in the Agreement, nothing herein
contained shall be deemed to excuse Trustor from repairing or maintaining the
Premises as provided in Section 1.12 hereof or restoring all damage or
destruction to the Mortgaged Property, regardless of whether or not there are
proceeds available or whether any such Proceeds are sufficient in amount, and
the application or release by Beneficiary of any Proceeds shall not cure or
waive any Default or notice of Default under this Deed of Trust or invalidate
any act done pursuant to such notice.
(d) Receipt by Beneficiary and application in reduction of
indebtedness of any Proceeds less than the full amount of the then outstanding
Secured Obligations shall not defer, alter or modify Trustor's obligation to
continue to pay the regular installments of principal, interest on the
outstanding principal balance and other charges owed in respect of the Secured
Obligations and herein.
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(e) If prior to the receipt of the Proceeds by Beneficiary the
condemned Premises shall have been sold on foreclosure of this Deed of Trust,
Beneficiary shall, nevertheless, have the right to receive the Proceeds and to
retain, for its own account, (i) an amount equal to the counsel fees, costs and
disbursements incurred by Beneficiary in connection with collection of the
Proceeds and not repaid by Trustor and (ii) the full amount of all such
Proceeds, if Beneficiary is the successful purchaser at the foreclosure sale, to
the extent of amounts owed in respect of the Secured Obligations.
Section 1.10 Beneficiary's Performance of Trustor's Obligations. If Trustor
shall fail to perform any of the covenants contained herein or any covenant
contained in the Agreement or any other Loan Document, Beneficiary may, but
shall not be obligated to, make advances and/or disbursements to perform the
same. Trustor will repay on demand all sums so advanced and/or disbursed with
interest at the Default Rate from the date of making such advance and/or
disbursement until such sums have been repaid and all sums so advanced and/or
disbursed, together with interest thereon at the Default Rate, shall be a lien
upon the Mortgaged Property and shall be secured hereby. The provisions of this
Section 1.10 shall not prevent any default in the observance of any covenant
contained herein or with respect to the Secured Obligations or in any other Loan
Document from constituting an Event of Default.
Section 1.11 Financial Records. Trustor will provide the financial
statements to Beneficiary required pursuant to the terms of the Agreement.
Section 1.12 Waste and Maintenance. Trustor will not threaten, commit,
permit or suffer any waste to occur on or to the Mortgaged Property or any part
thereof or alter or demolish the Mortgaged Property or any part thereof in any
manner or make any change in its use (except as provided in the Agreement) or
any change which will in any way increase any fire or other hazards arising out
of construction or operation of the Mortgaged Property. Trustor will, at all
times, maintain the Mortgaged Property as required pursuant to the terms of the
Agreement.
Section 1.13 Enforcement Expenses. Except where inconsistent with the laws
of the state in which the Mortgaged Property is located, Trustor agrees that if
any action or proceeding be commenced, including an action to foreclose this
Deed of Trust or to collect the indebtedness hereby secured, to which action or
proceeding Beneficiary is made a party by reason of the execution of this Deed
of Trust or the other Loan Documents, or in which it becomes necessary to defend
or uphold the lien of this Deed of Trust, all sums paid by Beneficiary for the
expense of any litigation to prosecute or defend or participate in the
transaction and the rights and liens created hereby (including reasonable
attorneys' fees) shall be paid by Trustor together with interest thereon from
date of payment by Beneficiary at the Default Rate. All such sums paid and the
interest thereon shall be immediately due and payable, shall be a lien upon the
Mortgaged Property, and shall be secured hereby as shall be all such sums
incurred in connection with enforcement by Beneficiary of its rights hereunder
or under any other Loan Document.
15
Section 1.14 Defense of Beneficiary's Interests. If the interest of
Beneficiary in the Mortgaged Property or any part thereof or the lien or
security interest of this Deed of Trust thereon shall be attacked, directly or
indirectly, or if legal proceedings shall be instituted against Trustee, Trustor
or Beneficiary with respect thereto or against Trustor, Trustor upon its
learning thereof, will promptly give written notice thereof to Beneficiary and
Trustor will, at Trustor's cost and expense, exert itself diligently to cure, or
will cause to be cured, any defect that may have developed or be claimed to
exist, and will take all necessary and proper steps for the protection and
defense thereof and will take, or will cause to be taken, such action as is
appropriate to the defense of any such legal proceedings, including, but not
limited to, the employment of counsel and the prosecution and defense of
litigation.
Section 1.15 No Impairment of Security. In no event shall Trustor do or
permit to be done, or omit to do or permit the omission of, any act or thing,
the doing, or omission, of which would materially impair the security of this
Deed of Trust or materially impair the value of the Mortgaged Property or any
part thereof.
Section 1.16 Restrictions on Transfers and Mortgages. Unless otherwise
permitted pursuant to the terms of the Agreement, Trustor will not directly or
indirectly, by transfer, mortgage, conveyance, or sale of an interest in Trustor
permit, do or suffer the assignment, lease, transfer, sale, conveyance or
encumbrance of the Mortgaged Property, or any part thereof or any interest
therein, without the express prior written consent of Beneficiary unless
otherwise permitted pursuant to the terms of the Agreement. While the Secured
Obligations are outstanding, neither the structure nor the ownership of Trustor
may be changed without the express prior written consent of Beneficiary unless
otherwise permitted pursuant to the terms of the Agreement.
Section 1.17 Beneficiary's Defense. Beneficiary or Trustee may appear in
and defend any action or proceeding at law or in equity or in bankruptcy
purporting to affect the Premises or the security hereof or the rights and
powers of Beneficiary or Trustee, and any appellate proceedings, and in such
event Trustor shall pay all of Beneficiary's and Trustee's costs, charges and
expenses, including cost of evidence of title and attorneys' fees incurred in
such action or proceeding. All costs, charges and expenses so incurred, together
with interest thereon at the Default Rate from the date of payment of same by
Beneficiary or Trustee as aforesaid, shall be secured by the lien of this Deed
of Trust and shall be due and payable upon demand.
Section 1.18 Environmental Compliance. Trustor will perform and comply
promptly with, and cause the Premises to be maintained, used and operated in
accordance with, all applicable federal, state and local laws pertaining to air
and water quality, hazardous waste, waste disposal, air emissions and other
environmental matters, as set forth in the Agreement.
Section 1.19 Zoning Changes. Trustor will not consent to, join in, permit
or allow any change in the zoning laws or ordinances relating to or affecting
the Premises which could reasonably
16
be expected to materially adversely affect the Premises and will promptly notify
Beneficiary of any changes to the zoning laws.
Section 1.20 Grant of Security Interest. Trustor, as further security for
the payment of said indebtedness and in addition to all the rights and remedies
otherwise available to Beneficiary or Trustee under this Deed of Trust and the
other Loan Documents, grants to Beneficiary and Trustee a security interest,
under the Uniform Commercial Code as now in effect in the state where all or any
of the Fixtures are located, in and to the Fixtures, and all proceeds thereof.
Upon an Event of Default, Beneficiary and Trustee shall have, in addition to all
the other rights and remedies allowed by law, the rights and remedies of a
secured party under the Uniform Commercial Code as in effect at that time.
Trustor further agrees that the security interest created hereby also secures
all expenses of Beneficiary and Trustee (including reasonable expenses for legal
services of every kind, and cost of any insurance, and payment of taxes or other
charges) incurred in or incidental to, the custody, care, sale or collection of,
or realization upon, any of the property secured hereby or in any way relating
to the enforcement or protection of the rights of Beneficiary or Trustee
hereunder, together with interest thereon at the Default Rate until paid.
Section 1.21 Compliance with Laws and ADA Compliance.
(a) Trustor warrants and covenants that the Premises are and will
continue to be substantially in compliance with all applicable local, county,
state and federal laws and regulations and all building, housing and fire codes,
rules and regulations.
(b) Without limiting the provisions of subsection (a) of this Section
1.21: (i) Trustor represents and warrants to Beneficiary that Trustor is
substantially in compliance with the Americans with Disabilities Act of 1990 (42
U.S.C.A. sec. 12101 et. seq.), as the same may be amended from time to time (the
"ADA") and all other federal, state and local laws pertaining to the
accessibility of the Premises by persons with disabilities (the ADA and such
other laws are, collectively, the "Accessibility Laws"); (ii) Trustor covenants
to ensure that the Premises will at all times substantially comply with all
applicable Accessibility Laws and, upon the request of Beneficiary, Trustor will
conduct such surveys of the Premises as Beneficiary shall require to ascertain
such compliance; (iii) Trustor will maintain accurate records of all
expenditures made in connection with any alterations to the Premises and will
deliver copies thereof to Beneficiary upon Beneficiary's request; and (iv)
Trustor shall defend, indemnify and hold harmless Beneficiary, its employees,
agents, officers and directors, attorneys, and any parent or affiliate of
Beneficiary, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, cost or expenses of whatever kind or nature,
known or unknown, contingent or otherwise, arising out or in any way related to
any violations of the Accessibility Laws (including, without limitation, any
costs incurred by Beneficiary in complying with any Accessibility Laws). Neither
payment of the indebtedness secured hereby nor foreclosure shall operate as a
discharge of Trustor's obligations under this subsection (b). In the event
Trustor tenders a deed in lieu of foreclosure, Trustor shall deliver the
Premises to Beneficiary
17
(or its designee) substantially free of any violations of the Accessibility
Laws. In the event Trustor does not timely perform any of the above obligations,
Beneficiary after 30 days notice to Trustor may perform said obligations at the
expense of Trustor and Trustor shall, upon written demand from Beneficiary,
reimburse Beneficiary for all costs, including attorneys' fees and out-of-pocket
expenses, and all liabilities incurred by Beneficiary by reason of the
foregoing, with interest thereon at the Default Rate from the date of such
payment by Beneficiary to the date of repayment. Until paid, said costs and
expenses shall be secured by this Deed of Trust.
Section 1.22 Other Multistate Mortgages. The indebtedness secured in part
by this Deed of Trust is secured by mortgages and/or deeds of trust encumbering
and conveying lands and other property and/or leasehold interests therein in
other states as more particularly described in the Agreement, all of which
mortgages and/or deeds of trust, including this instrument, being hereafter
referred to as "the mortgage instruments."
It is understood and agreed that all of the properties of all kinds
conveyed or encumbered by the mortgage instruments are security for the Secured
Obligations without allocation of any one or more of the parcels or portions
thereof to any portion of the Secured Obligations less than the whole amount
thereof unless so stated in said mortgage instruments.
It is specifically covenanted and agreed that Beneficiary or Trustee may
proceed, at the same or at different times, to foreclose said mortgage
instruments, or any of them, by any proceedings appropriate in the state where
any of the land lies, and that no event of enforcement taking place in any state
including, without limiting the generality of the foregoing, any pending
foreclosure, judgment or decree of the foreclosure, foreclosure sale, rents
received, possession taken, deficiency judgment or decree, or judgment taken on
the Secured Obligations, shall in any way stay, preclude or bar enforcement of
the mortgage instruments or any of them in any other state, and that Beneficiary
or Trustee may pursue any or all its remedies to the maximum extent permitted by
state law until all of the Secured Obligations now or hereafter secured by any
or all of the mortgage instruments has been paid and discharged in full.
Neither Trustor, nor any person claiming under Trustor, shall have or enjoy
any right to marshaling of assets, all such right being hereby expressly waived
as to Trustor and all persons claiming under it, including junior lienors. No
release of personal liability of any person whatever and no release of any
portion of the property now or hereafter subject to the lien of any of the
mortgage instruments shall have any effect whatever by way of impairment or
disturbance of the lien or priority of any of said mortgage instruments. Any
foreclosure or other appropriate remedy brought in any of the states aforesaid
may be brought and prosecuted as to any part of the mortgaged security, wherever
located, without regard to the fact that foreclosure proceedings or other
appropriate remedies have or have not been instituted elsewhere on any other
land subject to the lien of said mortgage instruments or any of them.
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Section 1.23 Leasehold and Leasehold Instruments.
(a) Trustor covenants and agrees to faithfully comply with and perform
all of its obligations under the Leasehold Instruments and to promptly cure any
default by it under the Leasehold Instruments.
(b) Trustor may modify, amend or terminate any Leasehold Instrument
without the prior written consent provided such action is consistent with the
terms of the Agreement.
(c) Trustor will promptly give Beneficiary a copy of any default
notice given to Trustor with respect to any Leasehold Instrument.
ARTICLE II
EVENTS OF DEFAULT AND REMEDIES
Section 2.01 Events of Default. The following shall constitute defaults
hereunder and, after the giving of notice and the passage of time, if any, as
provided herein, shall constitute "Events of Default" hereunder:
(a) If Trustor shall fail to pay when due any Secured Obligation after
the passage of any applicable notice or grace period, if any; or
(b) If an Event of Default, as defined in the Agreement, shall occur
under the Agreement.
Section 2.02 Beneficiary's Remedies. (a) During the continuance of any
Event of Default, Beneficiary, without notice or presentment, each of which are
hereby waived by Trustor, may, subject to the provisions of the Agreement,
declare the entire principal of the Secured Obligations then outstanding and all
accrued and unpaid interest thereon and all other amounts owing in respect
thereof (if not then due and payable, whether by acceleration or otherwise), to
be due and payable immediately, and upon any such declaration the principal of
the Secured Obligations and said accrued and unpaid interest shall become and be
immediately due and payable, anything in the instruments evidencing the Secured
Obligations or in this Deed of Trust to the contrary notwithstanding;
(b) During the continuance of any Event of Default, Beneficiary or
Trustee may enter into and upon all or any part of the Premises, and, having and
holding the same, may use, operate, manage and control the Mortgaged Property or
any part thereof and conduct the business thereof, either personally or by its
superintendents, managers, agents, servants, attorneys or receivers; and
likewise, from time to time, at the expense of Trustor, Beneficiary and/or
Trustee may make all necessary or proper repairs, renewals and replacements and
such useful alterations, addi-
19
tions, betterments and improvements thereto and thereon as to it may deem
advisable in its sole judgment; and in every such case Beneficiary and/or
Trustee shall have the right to manage and operate the Mortgaged Property and to
carry on the business thereof and exercise all rights and powers of Trustor with
respect thereto either in the name of Trustor or otherwise as Beneficiary or
Trustee shall deem best; and Beneficiary or Trustee shall be entitled, with or
without entering into or upon the Premises, to collect and receive all gross
receipts, earnings, revenues, rents, maintenance payments, issues, profits and
income of the Mortgaged Property and every part thereof, all of which shall for
all purposes constitute property of Beneficiary; and, after deducting the
expenses of conducting the business thereof and of all maintenance, repairs,
renewals, replacement, alterations, additions, betterments and improvements and
amounts necessary to pay taxes, assessments, insurance and prior or other proper
charges upon the Mortgaged Property or any part thereof, as well as just and
reasonable compensation for the services of Beneficiary and/or Trustee and for
all attorneys, counsel, agents, clerks, servants and other employees by it
properly engaged and employed, Beneficiary may apply the moneys arising as
aforesaid in such manner and at such times as Beneficiary shall determine in its
discretion consistent with the Agreement to the payment of the Secured
Obligations and the interest thereon, when and as the same shall become payable
and/or to the payment of any other sums required to be paid by Trustor under
this Deed of Trust;
(c) During the continuance of any such Event of Default, Trustor
covenants and agrees as follows:
(1) Trustee or Beneficiary may, with or without entry, personally or
by their agents or attorneys, insofar as applicable, sell the Mortgaged Property
or any part thereof and pursuant to the procedures provided by law, and all
estate, right, title, interest, claim and demand therein, and right of
redemption thereof, at one or more sales as an entity or in parcels, and at such
time and place upon such terms and after such notice thereof as may be required
or permitted by law; or
(2) Trustee or Beneficiary may institute an action of mortgage
foreclosure or institute other proceedings according to law for the foreclosure
hereof, and may prosecute the same to judgment, execution and sale for the
collection of the Secured Obligations secured hereby, and all interest with
respect thereto, together with all taxes and insurance premiums advanced by
Beneficiary or Trustee and other sums payable by Trustor hereunder, and all
fees, costs and expenses of such proceedings, including attorneys' fees and
expenses; or
(3) Trustee or Beneficiary may, if default be made in the payment of
any part of the Secured Obligations, proceed with foreclosure of the liens
evidenced hereby in satisfaction of such item either through the courts or by
conducting the sale as herein provided, and proceed with foreclosure of the
security interest created hereby, all without declaring the whole of the Secured
Obligations due, and provided that if sale of the Mortgaged Property, or any
portion thereof, is made because of default in payment of a part of the Secured
Obligations, such sale may be made subject to the unmatured part of the Secured
Obligations, but as to such unmatured part of the Secured
20
Obligations (and it is agreed that such sale, if so made, shall not in any
manner affect the unmatured part of the Secured Obligations) this Deed of Trust
shall remain in full force and effect just as though no sale had been made under
the provisions of this paragraph. And it is further agreed that several sales
may be made hereunder without exhausting the right of sale for any unmatured
part of the Secured Obligations, it being the purpose to provide for a
foreclosure and sale of the Mortgaged Property, or any part thereof, for any
matured portion of the Secured Obligations without exhausting the power to
foreclose and to sell the Mortgaged Property, or any part thereof, for any other
part of the Secured Obligations whether matured at the time or subsequently
maturing; or
(4) Trustee or Beneficiary may take such steps to protect and enforce
its rights whether by action, suit or proceeding in equity or at law for the
specific performance of any covenant, condition or agreement in the Loan
Documents or in aid of the execution of any power herein granted, or for any
foreclosure hereunder, or for the enforcement of any other appropriate legal or
equitable remedy or otherwise as Beneficiary or Trustee shall elect; or
(5) Beneficiary or Trustee may exercise in respect of the Mortgaged
Property consisting of Fixtures, all of the rights and remedies available to a
secured party upon default under the applicable provisions of the Uniform
Commercial Code as then in effect in the state where the Mortgaged Property is
located; or
(6) Beneficiary or Trustee may apply any proceeds or amounts held in
escrow pursuant to the terms of this Deed of Trust to payment of any part of the
Secured Obligations in such order of priority as Beneficiary may determine
consistent with the Agreement; or
(7) Any sale as aforesaid may be subject to such existing tenancies as
Beneficiary, in its sole discretion, may elect.
Section 2.03 Sale, Foreclosure, etc. (a) Beneficiary or Trustee may adjourn
from time to time any sale by it to be made under or by virtue of this Deed of
Trust by announcement at the time and place appointed for such sale or for such
adjourned sale or sales; and, except as otherwise provided by any applicable
provision of law, Beneficiary or Trustee, without further notice or publication,
may make such sale at the time and place to which the same shall be so
adjourned.
(b) Upon the completion of any sale or sales made by Beneficiary or
Trustee under or by virtue of this Article II, Beneficiary or Trustee, or any
officer of any court empowered to do so, shall execute and deliver to the
accepted purchaser or purchasers a good and sufficient instrument, or good and
sufficient instruments, conveying, assigning and transferring all estate, right,
title and interest in and to the properties, interests and rights sold.
Beneficiary and Trustee are each hereby irrevocably appointed the true and
lawful attorney of Trustor, in its name and stead, to make all the necessary
conveyances, assignments, transfers and deliveries of any part of the Mortgaged
Property and rights so sold, and for that purpose Beneficiary or Trustee may
execute all necessary
21
instruments of conveyance, assignment and transfer and may substitute one or
more persons with like power, Trustor hereby ratifying and confirming all that
its said attorney or such substitute or substitutes shall lawfully do by virtue
hereof. Nevertheless, Trustor, if so requested by Beneficiary or Trustee, shall
ratify and confirm any such sale or sales by executing and delivering to
Beneficiary or Trustee or to such purchaser or purchasers all such instruments
as may be advisable, in the reasonable judgment of Beneficiary or Trustee, for
the purpose and as may be designated in such request.
(c) Upon any sale, whether under the power of sale hereby given or by
virtue of judicial proceedings, it shall not be necessary for Beneficiary or
Trustee, or any public officer acting under execution or order of court, to have
present or constructive possession of any of the Mortgaged Property.
(d) The recitals contained in any conveyance made by Beneficiary or
Trustee to any purchaser at any sale made pursuant hereto or under applicable
law shall be full evidence of the matters therein stated, and all prerequisites
to such sale shall be presumed to have been satisfied and performed.
(e) Any such sale or sales made under or by virtue of this Deed of
Trust, whether under the power of sale hereby granted and conferred, or under or
by virtue of any judicial proceedings, shall operate to divest all right, title,
interest, claim and demand whatsoever, either by law or in equity, of Trustor in
and to the premises and property sold, and shall be a perpetual bar, both at law
and in equity, against Trustor, its successors and assigns, and against any and
all persons or entities claiming the premises and property sold, or any part
thereof, from through or under Trustor and its successors or assigns.
(f) The receipt given by Beneficiary or Trustee for the purchase money
paid at any such sale, or the receipt given by any other person authorized to
receive the same, shall be sufficient discharge therefor to any purchaser of the
property, or any part thereof, sold as aforesaid, and no such purchaser, or his
representatives, grantees or assigns, after paying such purchase money and
receiving such receipt, shall be bound (i) to see to the application of such
purchase money or any part thereof upon or for any trust or purpose of this Deed
of Trust, (ii) by the misapplication or nonapplication of any such purchase
money, or any part thereof, or (iii) to inquire as to the authorization,
necessity, expediency or regularity of any such sale.
(g) In case the liens or security interests hereunder, or by the
exercise of any other right or power, shall be foreclosed by Beneficiary's or
Trustee's sale or by other judicial or non-judicial action, the purchaser at any
such sale shall receive, as an incident to its ownership, immediate possession
of the property purchased, and if Trustor or Trustor's successors shall hold
possession of said property, or any part thereof, subsequent to foreclosure,
Trustor or Trustor's successors shall be considered as tenants at sufferance of
the purchaser at foreclosure sale, and
22
anyone occupying the property after demand made for possession thereof shall be
guilty of forcible detainer and shall be subject to eviction and removal,
forcible or otherwise, with or without process of law, and all damages by reason
thereof are hereby expressly waived.
(h) In the event a foreclosure hereunder shall be commenced by
Beneficiary or Trustee, Beneficiary or Trustee may at any time before the sale
abandon the suit, and may then institute suit for the collection of the Secured
Obligations and for the foreclosure of the liens and security interest hereof.
If Beneficiary or Trustee should institute a suit for the collection of the
Secured Obligations and for a foreclosure of the liens and security interest
hereof, it may at any time before the entry of a final judgment in said suit
dismiss the same and proceed to sell the Mortgaged Property, or any part
thereof, in accordance with provisions of this Deed of Trust.
(i) Any reasonable expenses incurred by Beneficiary or Trustee in
prosecuting, resetting or settling the claim of Beneficiary shall become an
additional Secured Obligation of Trustor hereunder.
(j) In the event of any sale made under or by virtue of this Article
II (whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale), the
entire principal of, and interest on, the Secured Obligations, if not previously
due and payable, and all other sums required to be paid by Trustor pursuant to
this Deed of Trust, immediately thereupon shall, anything in the Secured
Obligations or in this Deed of Trust to the contrary notwithstanding, become due
and payable.
(k) The purchase money proceeds or avails of any sale made under or by
virtue of this Article II, together with any other sums which then may be held
by Beneficiary under this Deed of Trust, whether under the provisions of this
Article II or otherwise, shall be applied in accordance with the laws of the
state where the Mortgaged Property is located, and to the extent not
inconsistent, first to the payment of the costs and expenses of such sale,
including reasonable compensation to Beneficiary or Trustee and their agents and
counsel, second to the payment of the amounts due and owing under or in respect
of the Secured Obligations for principal and interest and any other amounts
including (without limitation) any other sums required to be paid by Trustor
pursuant to any provision of this Deed of Trust or any other Loan Document, with
interest at the Default Rate from and after the happening of any Event of
Default in the order set forth in Section 7.2 of the Agreement, all with
interest at the Default Rate from the date such sums were or are required to be
paid under this Deed of Trust, and third to the payment of the surplus, if any,
to whomsoever may be lawfully entitled to receive the same.
(l) Upon any sale made under or by virtue of this Article II, whether
made under the power of sale herein granted or under or by virtue of judicial
proceedings or of a judgment or decree of foreclosure and sale, Beneficiary and
any other Secured Party or Trustee may bid for and acquire the Mortgaged
Property or any part thereof and Beneficiary and any other Secured Party in lieu
of
23
paying cash therefor may make settlement for the purchase price by crediting
some or all of the indebtedness of Trustor secured by this Deed of Trust owing
to such Secured Party (or, in the case of Beneficiary, owing to all Secured
Parties) the net sales price after deducting therefrom the expenses of the sale
and the costs of the action and any other sums which Beneficiary or Trustee is
authorized to deduct under this Deed of Trust.
Section 2.04 Payments, Judgment, etc. (a) In case an Event of Default under
the Agreement and the acceleration of the obligations thereunder shall have
occurred, then Trustor will in accordance with the Agreement pay to Beneficiary
the whole amount which then shall have become due and payable on the Secured
Obligations, whether for principal and interest or both or otherwise, as the
case may be, which interest shall then accrue at the Default Rate on the then
unpaid principal of or other amounts constituting the Secured Obligations, and
the sums required to be paid by Trustor pursuant to any provision of this Deed
of Trust, and in addition thereto such further amount as shall be sufficient to
cover the costs and expenses of collection, including compensation to
Beneficiary and/or Trustee, their agents and counsel and any expenses incurred
by Beneficiary or Trustee hereunder. In the event Trustor shall fail forthwith
to pay such amounts upon demand, Beneficiary and/or Trustee shall be entitled
and empowered to institute such action or proceedings at law or in equity as may
be advised by its counsel for the collection of the sums so due and unpaid, and
may prosecute any such action or proceedings to judgment or final decree.
(b) Beneficiary and/or Trustee shall be entitled to recover judgment
as aforesaid either before or after or during the pendency of any proceedings
for the enforcement of the provisions of this Deed of Trust and the right of
Beneficiary and/or Trustee to recover such judgment shall not be affected by any
entry or sale hereunder, or by the exercise of any other right, power or remedy
for the enforcement of the provisions of this Deed of Trust or the foreclosure
of the lien hereof; and in the event of a sale of the Mortgaged Property or any
part thereof and of the application of the proceeds of sale, as provided in this
Deed of Trust, to the payment of the indebtedness hereby secured, Beneficiary
and/or Trustee shall be entitled to enforce payment of, and to receive all
amounts then remaining due and unpaid upon, the Secured Obligations, and to
enforce payment of all other charges, payments and costs due under this Deed of
Trust and shall be entitled to recover judgment for any portion of the debt
remaining unpaid, with interest thereon at the Default Rate. In case of
proceedings against Trustor in insolvency or bankruptcy or any proceedings for
its reorganization or involving the liquidation of its assets, then Beneficiary
and/or Trustee shall be entitled to prove the whole amount of principal and
interest due upon the Secured Obligations to the full amount thereof, and all
other payments, charges and costs due under this Deed of Trust without deducting
therefrom any proceeds obtained from the sale of the whole or any part of the
Mortgaged Property.
(c) No recovery of any judgment by Beneficiary or Trustee and no levy
of an execution under any judgment upon the Mortgaged Property or upon any other
property of Trustor shall affect, in any manner or to any extent, the lien of
this Deed of Trust upon the Mortgaged
24
Property or any part thereof, or any liens, rights, powers or remedies of
Beneficiary or Trustee hereunder, but such liens, rights, powers and remedies of
Beneficiary or Trustee shall continue unimpaired as before.
(d) Any moneys thus collected by Beneficiary or Trustee under this
Section 2.04 shall be applied by Beneficiary in accordance with the provisions
of paragraph (k) of Section 2.03.
Section 2.05 Receiver, Waiver. After the happening of any Event of Default
and immediately upon the commencement of any action, suit or other legal
proceedings by Beneficiary or Trustee to obtain judgment for the principal of,
or interest on, and any other amounts constituting the Secured Obligations,
including (without limitation) all other sums required to be paid by Trustor
pursuant to any provision of this Deed of Trust or of any nature in aid of the
enforcement of the Secured Obligations or of this Deed of Trust, Trustor will
(a) waive the issuance and service of process and submit to a voluntary
appearance in such action, suit or proceeding and (b) if required by Beneficiary
or Trustee, consent to the appointment of a receiver or receivers of the
Mortgaged Property or any part thereof and of all the earnings, revenues, rents,
maintenance payments, issues, profits and income thereof in accordance with
Section 2.11 hereof. After the happening of any Event of Default and during its
continuance, or upon the commencement of any proceedings to foreclose this Deed
of Trust or to enforce the specific performance hereof or in aid thereof or upon
the commencement of any other judicial proceeding to enforce any right of
Beneficiary or Trustee, Beneficiary or Trustee shall be entitled, as a matter of
right, if it shall so elect, without the giving of notice to any other party and
without regard to the adequacy or inadequacy of any security for the Deed of
Trust indebtedness, forthwith either before or after declaring the unpaid
principal of the Secured Obligations to be due and payable, to the appointment
of such a receiver or receivers.
Section 2.06 Beneficiary's Possession. Notwithstanding the appointment of
any receiver, liquidator or trustee of Trustor or of any of its property, or of
the Mortgaged Property or any part thereof, Beneficiary and Trustee shall be
entitled to retain possession and control of the Mortgaged Property.
Section 2.07 Remedies Cumulative. No remedy herein conferred upon or
reserved to Beneficiary or Trustee is intended to be exclusive of any other
remedy or remedies which Beneficiary or Trustee may be entitled to exercise
against Trustor and each and every such remedy shall be cumulative, and shall be
in addition to every other remedy given hereunder or in the Agreement or in any
other Loan Document now or hereafter existing at law or in equity or by statute.
No delay by or omission of Beneficiary or Trustee to exercise any right or power
shall be construed to be a waiver of any Event of Default or any acquiescence
therein; and every power and remedy given in this Deed of Trust or in the
Agreement or in any other Loan Document to Beneficiary or Trustee may be
exercised from time to time as often as may be deemed expedient by Beneficiary
or Trustee. The resort to any remedy provided hereunder or in the Agreement or
in any other Loan Document or provided by law or at equity shall not prevent the
concurrent or subsequent
25
employment of any other appropriate remedy or remedies against Trustor. By the
acceptance of payment of principal of or interest on or any other amount due in
respect of any of the Secured Obligations after its due date, Beneficiary and
Trustee do not waive the right either to require prompt payment when due of all
other amounts secured hereby or to regard as an Event of Default the failure to
pay any other such amounts. Nothing in this Deed of Trust or in the Agreement or
in any instrument evidencing the Secured Obligations shall affect the obligation
of Trustor to pay (i) the principal of, and interest on, the Secured Obligations
in the manner and at the time and place therein or in the Agreement expressed or
(ii) the other Secured Obligations in the manner and at the time herein
expressed.
Section 2.08 Agreement by Trustor. Trustor will not at any time insist
upon, or plead, or in any manner whatever claim or take any benefit or advantage
of any stay or extension or moratorium law, any exemption from execution or sale
of the Mortgaged Property or any part thereof, wherever enacted, now or at any
time hereafter in force, which may affect the covenants and terms of performance
of this Deed of Trust or any other Loan Document, or claim, take or insist upon
any benefit or advantage of any law now or hereafter in force providing for the
valuation or appraisal of the Mortgaged Property, or any part thereof, prior to
any sale or sales thereof which may be made pursuant to any provision herein, or
pursuant to the decree, judgment or order of any court of competent
jurisdiction, or, after any such sale or sales, claim or exercise any right
under any statute heretofore or hereafter enacted to redeem the property so sold
or any part thereof; and Trustor hereby expressly waives all benefit or
advantage of any such law or laws and covenants not to hinder, delay or impede
the execution of any power herein granted or delegated to Beneficiary or
Trustee, but to suffer and permit the execution of every power as though no such
law or laws had been made or enacted. Trustor, waives, to the extent that it
lawfully may, all right to have the Mortgaged Property or any part thereof
marshaled upon any foreclosure hereof.
Section 2.09 Use and Occupancy Payments. During the continuance of any
Event of Default and pending the exercise by Beneficiary and Trustee of their
rights to exclude Trustor from all or any part of the Premises, unless Trustor
is legally entitled to continue possession of the Premises, Trustor agrees to
pay to Beneficiary the fair and reasonable rental value, which amount shall be
determined by the Beneficiary in its reasonable judgement, for the use and
occupancy of the Premises or any portion thereof which are in its possession for
such period and, upon default of any such payment, will vacate and surrender
possession of the Premises to Beneficiary or Trustee or to a receiver, if any,
and in default thereof may be evicted by any summary action or proceeding for
the recovery of possession of the Premises for non-payment of rent, however
designated. Any payments received under this Section 2.09 by Beneficiary shall
be applied in accordance with Section 2.03(k) of this Deed of Trust.
Section 2.10 Beneficiary's Right to Purchase. In case of any sale under the
foregoing provisions of this Article II, whether made under the power of sale
hereby given or pursuant to judicial proceedings, Beneficiary or Trustee may bid
for and purchase any property, and may make
26
payment therefor as hereinafter set forth or as set forth in Section 2.03(l)
above, and, upon compliance with the terms of said sale, may hold, retain and
dispose of such property without further accountability therefor. For the
purpose of making settlement or payment for the property or properties
purchased, Beneficiary and Trustee shall be entitled to use and apply such of
the Secured Obligations held by it or the other Secured Parties, including
(without limitation) any accrued and unpaid interest thereon, as it may elect,
or as may be otherwise provided for in Section 2.03(l) above.
Section 2.11 Appointment of Receiver. Upon application of Beneficiary or
Trustee to any court of competent jurisdiction, if any Event of Default shall
have occurred and so long as it shall be continuing, to the extent permitted by
law, a receiver may be appointed to take possession of and to operate, maintain,
develop and manage the Mortgaged Property or any part thereof. In every case
when a receiver of the whole or any part of the Mortgaged Property shall be
appointed under this Section 2.11 or otherwise, the net income and profits of
the Mortgaged Property shall, subject to the order of any court of competent
jurisdiction, be paid over to, and shall be received by, Beneficiary or Trustee
to be applied as provided in Section 2.03(k) hereof.
Section 2.12 No Waiver. Beneficiary and/or Trustee may resort to any
security given by this Deed of Trust or to any other security now existing or
hereafter given to secure the payment of any of the Secured Obligations secured
hereby, in whole or in part, and in such portions and in such order as may seem
best to Beneficiary or Trustee in its reasonable discretion, and any such action
shall not in any way be considered as a waiver of any of the rights, benefits,
liens or security interest created by this Deed of Trust.
ARTICLE III
ASSIGNMENT OF LEASES AND RENTS
Section 3.01 Lease Related Definitions. As used in this Deed of Trust: (a)
"Lease" means any lease, sublease, or other similar agreement, now or hereafter
existing, under the terms of which any person other than Trustor has or acquires
any right to occupancy or use of the Mortgaged Property, or any part thereof, or
interest therein; (b) "Lessee" means the lessee, sublessee, licensee, tenant or
other person having the right to occupy or use all or any part of the Mortgaged
Property under a Lease; and (c) "Rent" means the rents, additional rents and
other consideration payable to Trustor by the Lessee under the terms of a Lease.
Whenever reference is made in this Deed of Trust to a lease, license, lessee,
licensee, tenancy or tenant, such reference shall be deemed to include a
sublease, sublessee, license, licensee, subtenancy or subtenant, as the case may
be.
Section 3.02 Assignment of Leases and Rents. Trustor hereby assigns to
Beneficiary and to Trustee for the benefit of Beneficiary all Leases, together
with all Rents payable under the Leases, now or at any time hereafter existing,
such assignment being upon the following terms: (a) until receipt from
Beneficiary of notice of the occurrence of an Event of Default, each Lessee may
pay
27
rent directly to Trustor, (b) upon receipt from Beneficiary of notice that an
Event of Default exists, each Lessee shall, and is hereby authorized and
directed to, pay directly to Beneficiary or Trustee (as therein specified) all
Rent thereafter accruing, and the receipt of such Rent by Beneficiary or Trustee
shall be a release of such Lessee to the extent of all amounts so paid, (c) Rent
so received by Beneficiary or Trustee shall be applied by Beneficiary or Trustee
first to the expenses, if any, of collection and then in accordance with Article
II hereof, (d) without impairing its rights hereunder, Beneficiary or Trustee
may, at its option, at any time and from time to time, release to Trustor Rent
so received by Beneficiary or Trustee, or any part thereof, (e) Beneficiary and
Trustee shall not be liable for their failure to collect, or their failure to
exercise diligence in the collection of, Rent, but shall be accountable only for
Rent that they shall actually receive. As among Beneficiary, Trustee, Trustor
and any person claiming through or under Trustor, the assignment contained in
this Section 3.02 is intended to be absolute, unconditional and presently
effective, and the provisions of subsection 3.02(a) are intended for the benefit
of each Lessee and shall never inure to the benefit of Trustor or any person
claiming through or under Trustor. It shall never be necessary for Beneficiary
or Trustee to institute legal proceedings of any kind whatsoever to enforce the
provisions of this Section 3.02. Notwithstanding anything herein to the
contrary, Trustor may collect such Rent until such time as an Event of Default
shall occur hereunder.
Section 3.03 Beneficiary's Consent. Nothing in this Article III shall ever
be construed as (a) allowing any Lease without Beneficiary's prior written
consent unless otherwise permitted under the Agreement, or (b) subordinating
this Deed of Trust to any Lease.
Section 3.04 Lease Related Covenants. Trustor covenants to: (a) upon demand
by Beneficiary, assign to Beneficiary or Trustee, by separate instrument in form
and substance satisfactory to Beneficiary, any and all Leases, and/or all Rents
payable thereunder, including, but not limited to, any Lease which is now in
existence or which may be executed after the date hereof; (b) not accept from
any Lessee, nor permit any Lessee to pay, Rent for more than one month in
advance except for payment in the nature of security for performance of Lessee's
obligations unless otherwise provided for in the Lease; (c) comply with the
terms and provisions of each Lease including, without limitation, the payment of
all sums required to be paid by Trustor or which any Lessor has an option to pay
under any Lease in order to prevent any reduction in or offset against any Rent
payable under any Lease or any default thereunder; (d) not amend, extend,
cancel, abridge, or otherwise modify, or accept surrender of, or renew, any
Lease without the written consent of Beneficiary other than in the ordinary
course of business, (e) not assign, transfer or mortgage any Lease without the
written consent of Beneficiary; (f) not assign, transfer, pledge or mortgage any
Rent; (g) not waive, excuse, release or condone any nonperformance of any
covenant of any Lease by any Lessee other than in the ordinary course of
business; (h) give to Beneficiary and Trustee duplicate notice of each material
default by each Lessee; (i) on all Leases executed after the date hereof, cause
each Lessee to agree (and each Lessee under each Lease executed after the date
hereof does so agree) to give to Beneficiary and Trustee written notice of each
and every material default by Trustor under its Lease and not exercise any
remedies under such Lease unless Beneficiary or Trustee fails to cure such
28
material default within a reasonable period after Beneficiary and Trustee have
received such notice; provided, that Beneficiary or Trustee shall never have any
obligation or duty to cure any such material default; (j) enforce its rights
with regard to all Leases in the ordinary course of business; and (k) not enter
into any Lease affecting the Mortgaged Property or any part thereof unless
otherwise permitted under the Agreement without the prior approval of
Beneficiary.
Section 3.05 Beneficiary Not Liable. Beneficiary and/or Trustee shall not
be obligated to perform or discharge, nor does it hereby undertake to perform or
discharge, any obligation, duty or liability under any Lease, or under or by
reason of this assignment, and Trustor shall and does hereby agree to indemnify
and to hold Beneficiary and Trustee harmless from and against any and all
liability, loss or damage which Beneficiary or Trustee may or might incur under
any Lease or under or by reason of this assignment and from and against any and
all claims and demands whatsoever which may be asserted against Beneficiary or
Trustee by reason of any alleged obligations or undertakings on its part to
perform or discharge any of the terms, covenants or agreements contained in any
Lease. Should Beneficiary or Trustee incur any such liability, loss or damage
under any Lease or under or by reason of this assignment, or in the defense of
any such claims or demands, the amount thereof, including all costs, expenses
and attorneys' fees, shall be secured hereby and constitute part of the Secured
Obligations, and Trustor shall reimburse Beneficiary therefore immediately upon
demand, and upon the failure of Trustor to do so, Beneficiary may declare all
sums secured by this Deed of Trust immediately due and payable.
Section 3.06 Estoppel Certificates. On all Leases executed after the date
hereof, all Leases shall provide for the giving by the Lessee of certificates
with respect to the status of such Leases, and Trustor shall exercise its right
to request such certificates within ten (10) days of any demand therefor by
Beneficiary. Trustor shall furnish to Beneficiary or Trustee, within ten (10)
days after a request by Beneficiary or Trustee to do so, an executed counterpart
of all Leases.
Section 3.07 Lease Approval Requirements. On all Leases executed after the
date hereof, all Leases and Lessees of the Premises, or any part thereof, must
be acceptable to and approved by Beneficiary unless otherwise provided under the
Agreement; and all Lessees shall execute such estoppel certificates,
subordinations, attornments and other agreements as Beneficiary may require.
Under no circumstances shall Beneficiary or Trustee be liable for any obligation
to pay any leasing commission, brokerage fee or similar fee or charge in
connection with any Lease nor shall Beneficiary or Trustee be obligated to
complete any Improvements for the benefit of any Lessee.
ARTICLE IV
MISCELLANEOUS
Section 4.01 Benefit of Beneficiary. All of the grants, covenants, terms,
provisions and conditions of this Deed of Trust shall run with the land and
shall apply to, bind and inure to the
29
benefit of the successors and assigns of the respective parties hereto;
provided, that Trustor may not assign its obligations hereunder without the
prior written consent of Beneficiary.
Section 4.02 Savings Clause. 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, at the option of Beneficiary, not affect any other
provision of this Deed of Trust but this Deed of Trust shall be construed as if
such invalid, illegal or unenforceable provision had never been contained herein
or therein.
Section 4.03 Notices. All notices hereunder shall be given pursuant to the
terms of Section 9.1 of the Agreement, and supplementing such provisions,
notices required to be given to Trustee shall be given at Trustee's address set
forth herein.
Section 4.04 Governing Law. This Deed of Trust shall, without regard to
place of contract or payment, be construed and enforced according to the laws of
the state where the Mortgaged Property is located, all without regard to
principles of conflict of laws.
Section 4.05 No Change. Neither this Deed of Trust nor any provision hereof
may be changed, waived, discharged or terminated, except by an instrument in
writing, signed by Beneficiary and Trustor.
Section 4.06 Security Agreement and Fixture Filing. This Deed of Trust
shall be deemed to be a security agreement and fixture filing pursuant to the
Uniform Commercial Code of the state where the Mortgaged Property is located.
Section 4.07 No Usury. In the event that Beneficiary, in enforcing its
rights hereunder, determines that charges and fees incurred in connection with
the Secured Obligations may, under the applicable usury laws, cause the interest
rate herein to exceed the maximum allowed by law, then such interest shall be
recalculated and any excess over the maximum interest permitted by said laws
shall be credited to the then principal outstanding balance to reduce said
balance by that amount. It is the intent of the parties hereto that Trustor
under no circumstances shall be required to pay, nor shall Beneficiary be
entitled to collect, any interest which is in excess of the maximum legal rate
permitted under the applicable usury laws.
Section 4.08 Effect of Partial Release. No release of any part of the
Mortgaged Property or of any other property conveyed to secure the Secured
Obligations shall in any way alter, vary or diminish the force, effect or lien
or security interest of this Deed of Trust on the Mortgaged Property or portion
thereof remaining subject to the lien and security interest created hereby.
Section 4.09 Beneficiary's Dealing with Successors and Lessees. In the
event Trustor or any of Trustor's successors conveys or leases without the prior
approval of Beneficiary (except as
30
otherwise permitted herein or in the Agreement) any interest in the Mortgaged
Property, or any part thereof, to any other party, Beneficiary and Trustee may
deal with any owner or lessee of any part of the Mortgaged Property with
reference to this Deed of Trust and to the Secured Obligations, either by
forbearance on the part of Beneficiary or release of all or any part of the
Mortgaged Property or of any other property securing payment of any Secured
Obligations, without in any way modifying or affecting Beneficiary's and
Trustee's rights, remedies, liens or security interests hereunder (including the
right to exercise any one or more of the remedies described or referred to in
Article I, Article II, Article III or Article IV hereof in the event such
conveyance is made in contravention of the provisions of this Deed of Trust) or
the liability of Trustor or any other party liable for the payment of the
Secured Obligations, in whole or in part. This shall not be construed to allow
any such conveyance or leasing by Trustor, except as permitted herein or in the
Agreement.
Section 4.10 No Waiver by Beneficiary. All options and rights of election
herein provided for the benefit of Beneficiary and/or Trustee are continuing,
and the failure to exercise any such option or right or election upon a
particular default or breach or upon any subsequent default or breach shall not
be construed as waiving the right to exercise such option or election at any
later date. By the acceptance of payment of principal or interest after its due
date, Beneficiary and/or Trustee does not waive the right either to require
prompt payment when due of all other amounts secured hereby or to regard as an
Event of Default the failure to pay any other such amounts. No exercise of the
rights and powers herein granted and no delay or omission in the exercise of
such rights and powers shall be held to exhaust the same or be construed as a
waiver thereof, and every such right and power may be exercised at any time and
from time to time. All grants, covenants, terms and conditions hereof shall bind
Trustor and all successive owners of the Premises.
Section 4.11 Headings Descriptive. The headings of the several sections and
subsections of this Deed of Trust are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of this Deed
of Trust.
SECTION 4.12 WAIVER OF TRIAL BY JURY. THE TRUSTOR, TRUSTEE AND BENEFICIARY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING
OUT OF OR IN ANY WAY CONNECTED TO THIS DEED OF TRUST.
Section 4.13 Indemnification. The Trustor agrees to pay, and to save,
indemnify and keep the Beneficiary and its respective directors, officers,
employees, attorneys, experts, and agents harmless from, any and all
liabilities, costs and expenses (including, without limitation, legal fees and
expenses), losses or damages (i) with respect to, or resulting from, any delay
in paying, any and all excise, sales or other taxes which may be payable or
determined to be payable with respect to any of the Mortgaged Property, (ii)
with respect to, or resulting from, any delay in complying with any requirement
of law applicable to any of the Mortgaged Property or (iii) in connection with
any of the transactions contemplated by this Deed of Trust, including the fees
and disbursements of counsel
31
and of any other experts, which Beneficiary or its respective directors,
officers, employees, attorneys, experts or agents may incur in connection with
(w) the administration or enforcement of this Deed of Trust, including such
expenses as are incurred to preserve the value of the Mortgaged Property and the
validity, perfection, rank and value of any liens granted hereunder, (x) the
collection, sale or other disposition of any of the Mortgaged Property, (y) the
exercise by the Beneficiary of any of the rights conferred upon it hereunder or
(z) any Default or Event of Default, but excluding any such liabilities, costs
and expenses, losses or damages incurred solely by reason of the gross
negligence or willful misconduct of the party seeking to be indemnified as
determined by a final order or judgment of a court of competent jurisdiction.
Any amount due hereunder which is not paid on demand shall bear interest at
a rate equal to the Default Rate and shall be a lien upon the Mortgaged Property
and shall be secured hereby.
The agreements of the Trustor contained in this Section 4.13 shall survive
the payment and performance of the Secured Obligations and the termination of
the liens and security interests granted hereby. All of the Trustor's
obligations to indemnify Beneficiary and its directors, officers, employees,
attorneys, experts and agents hereunder shall (without duplication) be in
addition to, and shall not limit in any way, the Trustor's indemnification
obligations contained in the Agreement or in any other Loan Document.
Section 4.14 Advances under the Agreement. It is understood and agreed that
the funds to be advanced under this Deed of Trust are to be advanced subject to
and in accordance with the provisions of the Agreement and the other Loan
Documents, and that all sums advanced thereunder or hereunder are included
within the Secured Obligations secured hereby.
Section 4.15 Limitation of Trustee's Liability. Trustee shall be protected
in acting upon any notice, request, consent, demand, statement, note or other
paper or document believed by Trustee to be genuine and to have been signed by
the party or parties purporting to sign the same. Trustee shall not be liable
for any error of judgment, nor for any act done or step taken or omitted, nor
for any mistakes of law or fact, nor for anything which Trustee may do or
refrain from doing in good faith, nor generally shall Trustee have any
accountability hereunder except for willful misconduct or gross negligence.
Trustee may act hereunder and may sell or otherwise dispose of the Mortgaged
Property or any part thereof as herein provided, although Trustee has been, may
now or may hereafter be, attorneys, officers, agents or employees of
Beneficiary, in respect of any matter of business whatsoever. Beneficiary and
Trustee shall not be liable for any loss to any chattels in their possession,
provided that they shall use reasonable care with respect thereto; and any such
loss shall not diminish the debt due.
Section 4.16 Substitution of Trustee. Beneficiary shall have, and is hereby
granted with warranty of further assurances, the irrevocable power to remove a
Trustee or successor Trustee and to appoint a substitute Trustee or Trustees
hereunder (including, in case of death or refusal to act of
32
a Trustee or Trustees or their nonacceptance of, or dissatisfaction with,
Trustee, absence or any other reason), to appoint a new or replacement
substitute Trustee or Trustees, to be exercised at any time without notice and
without specifying any reason therefor, by filing for record in the office where
this instrument is recorded a Deed of Appointment or Notice of Substitution of
Trustee. The power of appointment of a successor Trustee or Trustees may be
exercised as often as and whenever Beneficiary may choose, and the exercise of
the power of appointment, no matter how often, shall not be an exhaustion
thereof. Upon the recordation of such Deed or Deeds of Appointment or Notice or
Notices of Substitution of Trustee, Trustee or Trustees so appointed shall
thereupon, without any further act or deed of conveyance, become fully vested
with identically the same title and estate in and to the Mortgaged Property and
with all the rights, powers, trusts and duties of their, his or its predecessor
in the trust hereunder with like effect as if originally named as Trustee or as
one of Trustees hereunder. Whenever in this Deed of Trust reference is made to
Trustee, it shall be construed to mean Trustee or Trustees for the time being,
whether original or successors or successor in trust; and all title, estate,
rights, powers, trusts and duties hereunder given or appertaining to or
devolving upon Trustee shall be in each of Trustees so that any action hereunder
or purporting to be hereunder of any one of the original or any successor
Trustee shall for purposes be considered to be, and as effective as, the action
of all Trustees.
Section 4.17 Particular State Provisions. There is attached hereto and made
a part hereof Exhibit B containing additional provisions that are necessary or
appropriate under the laws of the state in which the Mortgaged Property is
located or pursuant to the provisions of any permitted property liens.
ARTICLE V
AMENDMENT AND RESTATEMENT
Section 5.01 Pre-Petition Deed of Trust. This Deed of Trust amends and
restates in its entirety the Pre-Petition Deed of Trust to which this Deed of
Trust relates and the Post-Petition Mortgage Liens; provided, however, that, to
the fullest extent permitted by law, (a) the priority of all liens, security
interests and other encumbrances evidenced hereby or arising hereunder shall
relate back to the date and time the Pre-Petition Deed of Trust to which this
Deed of Trust relates was recorded, or to such earlier date and time as
permitted by applicable law; (b) nothing herein shall impair the creation,
attachment, perfection or priority of the liens, security interests and other
encumbrances evidenced by or arising under the Pre-Petition Deed of Trust to
which this Deed of Trust relates or the Post-Petition Mortgage Liens; and (c)
nothing herein shall constitute a novation or discharge of the obligations
secured by the Pre-Petition Deed of Trust to which this Deed of Trust relates or
the Post-Petition Mortgage Liens.
33
IN WITNESS WHEREOF, this Deed of Trust has been duly executed by Trustor
and Beneficiary as of the day and year first above written.
TRUSTOR:
PAYLESS CASHWAYS, INC.
By:
--------------------------------
Name:
Title:
BENEFICIARY:
CANADIAN IMPERIAL BANK OF COMMERCE,
as Coordinating and Collateral Agent
By:
--------------------------------
Name:
Title:
34
EXHIBIT A
(DESCRIPTION OF LAND)
35
EXHIBIT B
(LOCAL LAW PROVISIONS)
