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Exhibit 4.5
Record and Return to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. XxXxxxxx, Esq.
===============================================================================
DEED OF TRUST,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT, FINANCING STATEMENT
AND FIXTURE FILING
dated as of April 2, 2001
from
CENTURY ALUMINUM OF WEST VIRGINIA, INC.
the Grantor,
to
XXXXXXX X. XXXXXXXX,
the Trustee
for the benefit of
WILMINGTON TRUST COMPANY,
as Collateral Agent,
the Beneficiary
Property:
Xxxxxxx County, West Virginia
===============================================================================
THIS INSTRUMENT IS FOR COMMERCIAL PURPOSES AND CONTAINS AFTER-ACQUIRED PROPERTY
PROVISIONS AND SECURES, INTER ALIA, OBLIGATIONS WHICH PROVIDE FOR AN INCREASING
RATE OF INTEREST.
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TABLE OF CONTENTS
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PAGE
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PREAMBLE.................................................................................... 1
RECITALS.................................................................................... 1
GRANTING CLAUSES............................................................................ 2
GRANTING CLAUSE I. Land .............................................................. 2
GRANTING CLAUSE II. Improvements ...................................................... 3
GRANTING CLAUSE III. Equipment ......................................................... 3
GRANTING CLAUSE IV. Appurtenant Rights ................................................ 4
GRANTING CLAUSE V. Agreements ........................................................ 4
GRANTING CLAUSE VI. Leases ............................................................ 4
GRANTING CLAUSE VII. Rents, Issues and Profits ......................................... 4
GRANTING CLAUSE VIII. Permits ........................................................... 5
GRANTING CLAUSE IX. Deposits .......................................................... 5
GRANTING CLAUSE X. Proceeds and Awards ............................................... 5
GRANTING CLAUSE XI. Further Property .................................................. 6
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.01. Definitions............................................................. 6
SECTION 1.02. Interpretation.......................................................... 12
SECTION 1.03. Resolution of Drafting Ambiguities...................................... 13
ARTICLE 2
CERTAIN WARRANTIES AND COVENANTS OF THE GRANTOR
SECTION 2.01. Title and Authority..................................................... 13
SECTION 2.02. Secured Obligations..................................................... 14
SECTION 2.03. Impositions............................................................. 14
SECTION 2.04. Legal and Insurance Requirements........................................ 14
SECTION 2.05. Status and Care of the Property......................................... 15
SECTION 2.06. Permitted Contests...................................................... 16
SECTION 2.07. Other Instruments....................................................... 17
SECTION 2.08. Liens................................................................... 17
SECTION 2.09. Transfer................................................................ 17
ARTICLE 3
INSURANCE, CASUALTY AND CONDEMNATION
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SECTION 3.01. Insurance............................................................... 18
SECTION 3.02. Casualty................................................................ 19
SECTION 3.03. Insurance Claims and Proceeds........................................... 19
SECTION 3.04. Condemnation............................................................ 19
SECTION 3.05. Condemnation Proceedings and Awards..................................... 20
ARTICLE 4
INCREASED COSTS AND INDEMNIFICATION
SECTION 4.01. Increased Costs......................................................... 20
SECTION 4.02. Indemnification......................................................... 21
ARTICLE 5
DEFAULTS, REMEDIES AND RIGHTS
SECTION 5.01. Events of Default....................................................... 21
SECTION 5.02. Remedies................................................................ 22
SECTION 5.03. Waivers by the Grantor.................................................. 26
SECTION 5.04. Jurisdiction and Process................................................ 26
SECTION 5.05. Sales................................................................... 27
SECTION 5.06. Proceeds................................................................ 29
SECTION 5.07. Assignment of Leases.................................................... 30
SECTION 5.08. Dealing with the Trust Property......................................... 31
SECTION 5.09. Right of Entry.......................................................... 31
SECTION 5.10. Right to Perform Obligations............................................ 31
SECTION 5.11. Concerning the Beneficiary.............................................. 31
ARTICLE 6
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 6.01. Security Agreement...................................................... 32
SECTION 6.02. Fixture Filing.......................................................... 33
SECTION 6.03 Further Assurances; General Covenants.................................. 33
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Trustee................................................................. 35
SECTION 7.02. Release of Trust Property............................................... 37
SECTION 7.03. Notices................................................................. 37
Exhibit A Description of the Land
Schedule I Initial Holders of Secured Obligations
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THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT,
FINANCING STATEMENT AND FIXTURE FILING (this "DEED OF TRUST") is dated as of
April 2, 2001 by CENTURY ALUMINUM OF WEST VIRGINIA, INC., a Delaware
corporation, having an address at X.X. Xxx 00, Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
(the "GRANTOR"), to XXXXXXX X. XXXXXXXX, as trustee, whose residence is in
Kanawha County, West Virginia (the "TRUSTEE") for the benefit of WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as Collateral Agent for itself
and the holders of the Notes (hereinafter defined), having its principal address
at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
(the "BENEFICIARY").
WITNESSETH:(1)
RECITALS
A. Indenture. Reference is hereby made to the Indenture dated as of
April 2, 2001 (the "INDENTURE"), among Century Aluminum Company (the "COMPANY"),
the Guarantors (including the Grantor) party thereto and Wilmington Trust
Company, as Indenture Trustee. Pursuant to the Indenture, the Company has issued
$325,000,000 principal amount of its 11 3/4% Senior Secured First Mortgage Notes
due 2008 (together with any Exchange Notes issued therefor as provided in the
Indenture, the "NOTES").
B. Note Guaranties. Pursuant to the Note Guaranties contained in the
Indenture (the "NOTE GUARANTIES"), each Guarantor (including the Grantor) has
guaranteed the payment by the Company of principal of, premium, if any, and
interest on, and all other amounts payable under, the Notes and the Indenture.
C. Deed of Trust. The Lien of this Deed of Trust is being granted to
secure payment, performance and observance of the following indebtedness,
liabilities and obligations, whether now or hereafter owed or owing, hereinafter
referred to collectively as the "SECURED OBLIGATIONS":
(i) the prompt and complete payment of (a) all obligations
(whether in existence on the date hereof or arising afterwards,
absolute or contingent, direct or indirect) of the Grantor under its
Note Guaranty, including for or in respect of principal (when due, upon
acceleration, upon redemption, upon mandatory repayment or repurchase
pursuant to a mandatory offer to
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(1) Capitalized terms are defined in, or by reference in, Section 1.01.
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purchase, or otherwise), premium, interest, including additional
interest under the Registration Rights Agreement, penalties, fees,
indemnification, reimbursement and other amounts payable and
liabilities with respect to such obligations, including all interest
accrued or accruing after the commencement of any bankruptcy,
insolvency or reorganization or similar case or proceeding at the
contract rate (including any contract rate applicable upon default)
specified in the Credit Documents, whether or not the claim for such
interest is allowed as a claim in such case or proceeding; (b) all
amounts payable by the Grantor hereunder (including advances made to
protect the Trust Property and the Liens created hereby); and (c) any
amendments, restatements, renewals, extensions or modifications of any
of the foregoing; and
(ii) performance and observance of each other term, covenant,
agreement, requirement, condition and provision to be performed or
observed by the Grantor under the Indenture or this Deed of Trust.
GRANTING CLAUSES
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, for the purpose of securing the due and punctual payment,
performance and observance of the Secured Obligations and intending to be bound
hereby, the Grantor does hereby GRANT (WITH DEED OF TRUST COVENANTS), BARGAIN,
SELL, CONVEY, ASSIGN, TRANSFER AND WARRANT to the Trustee, and its successors as
trustee, IN TRUST for the benefit of the Beneficiary upon the provisions of this
Deed of Trust, with power of sale and right of entry as hereinafter provided,
and (to the extent covered by the UCC) does hereby GRANT AND WARRANT to the
Beneficiary, and its successors as Collateral Agent, a continuing security
interest in, all of the property and rights described in the following Granting
Clauses other than the Excluded Property (all of which property and rights,
other than the Excluded Property, are collectively called the "TRUST PROPERTY"),
to wit:
GRANTING CLAUSE I.
Land. All estate, right, title and interest of the Mortgagor in, to,
under or derived from the lots, pieces, tracts or parcels of land located in the
County of Xxxxxxx, the State of West Virginia, more particularly described in
Exhibit A (the "LAND").
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GRANTING CLAUSE II.
Improvements. All estate, right, title and interest of the Grantor in,
to, under or derived from all buildings, structures, facilities and other
improvements of every kind and description now or hereafter located on the Land,
including pot lines, cast houses, power substations, paste plant, alumina silo,
rodding shop and water treatment and pollution control facilities, and all
parking areas, roads, driveways, walks, fences, walls, berms, recreation
facilities, drainage facilities, lighting facilities and other site
improvements, all water, sanitary and storm sewer, drainage, electricity, steam,
gas, telephone and other utility equipment and facilities, all plumbing,
lighting, heating, ventilating, air-conditioning, refrigerating, incinerating,
compacting, fire protection and sprinkler, surveillance and security, vacuum
cleaning, public address and communications equipment and systems, screens,
awnings, floor coverings, partitions, elevators, escalators, motors, machinery,
pipes, fittings and other items of equipment and personal property of every kind
and description now or hereafter located on the Land or attached to the
Improvements which by the nature of their location thereon or attachment thereto
are real property under applicable law; and including all materials intended for
the construction, reconstruction, repair, replacement, alteration, addition or
improvement of or to such buildings, equipment, fixtures, structures and
improvements, all of which materials shall be deemed to be part of the Trust
Property immediately upon delivery thereof on the Land and to be part of the
improvements immediately upon their incorporation therein (the foregoing being
collectively the "IMPROVEMENTS").
GRANTING CLAUSE III.
Equipment. All estate, right, title and interest of the Grantor in, to,
under or derived from all component parts of the Improvements, fixtures,
chattels and articles of personal property owned by the Grantor or in which the
Grantor has or shall acquire an interest, wherever situated, and now or
hereafter located on, attached to or contained in the Land and the Improvements,
whether or not attached thereto which are not real property under applicable
law, including all pot lines, partitions, screens, awnings, shades, blinds,
curtains, draperies, carpets, rugs, furniture and furnishings, heating,
lighting, plumbing, ventilating, air conditioning, refrigerating, gas, steam,
electrical, incinerating, compacting, water treatment, pollution control, and
paste plants, systems, fixtures and equipment, anode bake ovens, elevators,
stoves, ranges, other kitchen and laundry appliances, vacuum and other cleaning
systems, call systems, switchboards, sprinkler systems and other fire
prevention, alarm and extinguishing apparatus and materials, motors, machinery,
pipes, conduits, dynamos, engines, compressors, generators, boilers, stokers,
furnaces, pumps, trunks, ducts, appliances, equipment, utensils, tools,
implements, fittings and fixtures (all of the foregoing being hereinafter
collectively called the "EQUIPMENT"; and the Land
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with the Improvements thereon and the Equipment therein being collectively
called the "PROPERTY").
GRANTING CLAUSE IV.
Appurtenant Rights. All estate, right, title and interest of the
Grantor in, to, under or derived from all tenements, hereditaments and
appurtenances now or hereafter relating to the Property; the streets, roads,
sidewalks and alleys abutting the Property; all strips and gores within or
adjoining the Land; all land in the bed of any body of water adjacent to the
Land; all land adjoining the Land created by artificial means or by accretion;
all air space and rights to use air space above the Land; all development or
similar rights appurtenant to the Land; all rights of ingress and egress now or
hereafter appertaining to the Property; all easements, servitudes, rights, ways,
privileges and rights of way now or hereafter appertaining to the Property; and
all royalties and other rights appertaining to the use and enjoyment of the
Property, including alley, party walls, support, drainage, crop, timber,
agricultural, horticultural, oil, gas and other mineral, water stock, riparian
and other water rights.
GRANTING CLAUSE V.
Agreements. All estate, right, title and interest of the Mortgagor in,
to, under or and derived from all Insurance Policies (including all unearned
premiums and dividends thereunder), guarantees and warranties relating to the
Property and all supply and service contracts for water treatment, pollution
control or for water, sanitary and storm sewer, drainage, electricity, steam,
gas, telephone and other utilities relating to the Property (the foregoing being
collectively called the "AGREEMENTS").
GRANTING CLAUSE VI.
Leases. All estate, right, title and interest of the Grantor in, to,
under and derived from all Leases now or hereafter in effect, whether or not of
record, for the use or occupancy of all or any part of the Property.
GRANTING CLAUSE VII.
Rents, Issues and Profits. All estate, right, title and interest of the
Grantor in, to, under or derived from all rents, royalties, issues, profits,
receipts, revenue, income and other benefits now or hereafter accruing with
respect to the Property, including all rents and other sums now or hereafter
payable pursuant to the Leases; all other sums now or hereafter payable with
respect to the use, occupancy, management, operation or control of the Property;
and all other claims, rights and remedies now or hereafter belonging or accruing
with respect to the Property, including fixed,
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additional and percentage rents, occupancy charges, security deposits, parking,
maintenance, common area, tax, insurance, utility and service charges and
contributions (whether collected under the Leases or otherwise), proceeds of
sale of electricity, gas, heating, air-conditioning and other utilities and
services (whether collected under the Leases or otherwise), and deficiency rents
and liquidated damages following default or cancellation (the foregoing rents
and other sums described in this Granting Clause being collectively called the
"RENTS"), all of which the Grantor hereby irrevocably directs be paid to the
Beneficiary, subject to the license granted to the Grantor pursuant to Section
5.07(b), to be held, applied and disbursed as provided in this Deed of Trust.
GRANTING CLAUSE VIII.
Permits. All estate, right, title and interest of the Grantor in, to,
under or derived from all licenses, authorizations, certificates, variances,
consents, approvals and other permits now or hereafter appertaining to the
Property (the foregoing being collectively called the "PERMITS").
GRANTING CLAUSE IX.
Deposits. All estate, right, title and interest of the Grantor in, to,
under or derived from all amounts deposited with the Beneficiary under the
Credit Documents, including all Insurance Proceeds and Awards, including such
proceeds and awards as are deposited in the Cash Collateral Account, and
including all notes, certificates of deposit, securities and other investments
relating thereto and all interest, dividends and other income thereon, proceeds
thereof and rights relating thereto (the foregoing being collectively called the
"DEPOSITS").
GRANTING CLAUSE X.
Proceeds and Awards. All estate, right, title and interest of the
Grantor in, to, under or derived from all proceeds of any sale, transfer,
financing, refinancing or conversion into cash or liquidated claims, whether
voluntary or involuntary, of any of the Trust Property, including all Insurance
Proceeds and Awards, and all rights, dividends and other claims of any kind
whatsoever (including damage, secured, unsecured, priority and bankruptcy
claims) now or hereafter relating to any of the Trust Property, all of which the
Grantor hereby irrevocably directs be paid to the Beneficiary to the extent
provided hereunder or under any other Credit Document, to be held, applied and
disbursed as provided in this Deed of Trust.
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GRANTING CLAUSE XI.
Further Property. All estate, right, title and interest of the Grantor
in, to, under or derived from the Trust Property hereafter acquired by the
Grantor, and all right, title and interest of the Grantor in, to, under or
derived from all extensions, improvements, betterments, renewals, substitutions
and replacements of, and additions and appurtenances to, any of the Trust
Property hereafter acquired by or released to the Grantor or constructed or
located on, or attached to, the Property, in each case, immediately upon such
acquisition, release, construction, location or attachment, without any further
conveyance, mortgage, assignment or other act by the Grantor; and all estate,
right, title and interest of the Grantor in, to, under or derived from any other
property and rights which are, by the provisions of the Credit Documents,
required to be subjected to the Lien hereof; and all estate, right, title and
interest of the Grantor in, to, under or derived from all other property and
rights which are by any instrument or otherwise subjected to the Lien hereof by
the Grantor or by anyone acting on its behalf.
TO HAVE AND TO HOLD the Trust Property, together with all estate,
right, title and interest of the Grantor and anyone claiming by, through or
under the Grantor in, to, under or derived from the Trust Property and all
rights and appurtenances relating thereto, unto the Trustee and its successors
and assigns, as Trustee hereunder, forever, under and subject to the terms of
the Indenture and this Deed of Trust for the benefit of the Beneficiary,
forever.
PROVIDED ALWAYS that this Deed of Trust is upon the express condition
that the Trust Property shall be released from the Lien of this Deed of Trust in
full in the manner and at the time provided in Section 7.02.
THE GRANTOR ADDITIONALLY COVENANTS AND AGREES WITH
THE BENEFICIARY AS FOLLOWS:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.01. Definitions. (a) As used herein, the following terms
shall have the following meanings:
"AGREEMENTS" is defined in Granting Clause V.
"AWARDS" means, at any time, all awards or payments paid or payable by
reason of any Condemnation, including all amounts paid or payable with respect
to
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any Transfer in lieu or anticipation of Condemnation or any agreement with any
condemning authority which has been made in settlement of in connection with any
proceeding relating to a Condemnation.
"BENEFICIARY" is defined in the Preamble.
"CASH COLLATERAL ACCOUNT" is defined in the Pledge and Security
Agreement.
"CASUALTY" means any damage to, or destruction of, the Property.
"COLLATERAL AGENT" is defined in the Indenture.
"COMPANY" is defined in the recitals.
"CREDIT AGREEMENT" is defined in the Indenture.
"CREDIT DOCUMENTS"means the Indenture, the Notes, the Registration
Rights Agreement, and the Security Documents.
"CONDEMNATION" means any condemnation or other taking or temporary or
permanent requisition of any Property, any interest therein or right appurtenant
thereto, or any change of grade affecting any Property, as the result of the
exercise of any right of condemnation or eminent domain. A Transfer in lieu or
anticipation of Condemnation shall be deemed to be a Condemnation.
"DEED OF TRUST" is defined in the Preamble.
"DEFAULT" is defined in the Indenture.
"DEPOSITS" is defined in Granting Clause IX.
"ENVIRONMENTAL LAWS" means any federal, state, local or foreign law
(including common law), treaty, judicial decision, regulation, rule, judgment,
order, decree, injunction, permit, or governmental restriction or requirement,
or any agreement with any governmental authority or other third party, whether
now or hereafter in effect, relating to human health and safety, the environment
or to pollutants, contaminants, wastes or chemicals or any toxic, radioactive,
ignitable, corrosive, reactive or otherwise hazardous substances, wastes or
materials.
"EQUIPMENT" is defined in Granting Clause III.
"EVENT OF DEFAULT" is defined in the Indenture.
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"EXCLUDED PROPERTY" means all "inventory", equipment constituting
"mobile goods", and "accounts" as such quoted terms are defined or otherwise
described in the UCC.
"GRANTOR" is defined in the Preamble.
"GUARANTOR" is defined in the Indenture.
"HAZARDOUS SUBSTANCES" means any pollutant, contaminant, waste or
chemical or any toxic, radioactive, ignitable, corrosive, reactive or otherwise
hazardous substance, waste or material, or any substance, waste or material
having any constituent elements displaying any of the foregoing characteristics,
including, without limitation, petroleum, its derivatives, by-products and other
hydrocarbons, and any substance, waste or material regulated under any
Environmental Law.
"IMPOSITIONS" means all taxes (including real estate taxes and sales
and use taxes), assessments (including all assessments for public improvements
or benefits, whether or not commenced or completed prior to the date hereof),
water, sewer or other rents, rates and charges, excises, levies, license fees,
permit fees, inspection fees and other authorization fees and other charges, in
each case whether general or special, ordinary or extraordinary, foreseen or
unforeseen, of every character (including all interest and penalties thereon),
which at any time may be assessed, levied, confirmed or imposed on or in respect
of, or be a Lien upon, (i) the Property, any other Trust Property or any
interest therein, (ii) any occupancy, use or possession of, or activity
conducted on, the Property, (iii) the Rents from the Property or the use or
occupancy thereof, or (iv) the Secured Obligations or the Security Documents,
but excluding income, excess profits, franchise, capital stock, estate,
inheritance, succession, gift or similar taxes of the Grantor, the Beneficiary
or any other Secured Party, except to the extent that such taxes of the Grantor,
the Beneficiary or any other Secured Party are imposed in whole or in part in
lieu of, or as a substitute for, any taxes which are or would otherwise be
Impositions.
"IMPROVEMENTS" is defined in Granting Clause II.
"INDENTURE" is defined in the Recitals.
"INDENTURE TRUSTEE" means the "Trustee" as defined in the Indenture.
"INSURANCE POLICIES" means the insurance policies and coverages
required to be maintained by the Mortgagor with respect to the Property pursuant
to this Deed of Trust.
"INSURANCE PREMIUMS" means all premiums for the Insurance Policies.
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"INSURANCE PROCEEDS" means, at any time, all insurance proceeds or
payments to which the Grantor may be or become entitled by reason of any
Casualty under the Insurance Policies maintained by the Grantor pursuant to the
Indenture with respect to the Property plus (i) the amounts of any deductibles
under such Insurance Policies; (ii) if the Grantor fails to maintain any of such
Insurance Policies, the amounts which would have been available with respect to
such Casualty had the Grantor maintained such Insurance Policies; and (iii) all
insurance proceeds and payments to which the Grantor may be or become entitled
by reason of any Casualty under any other insurance policies or coverages
maintained by the Grantor with respect to the Property.
"INSURANCE REQUIREMENTS" means all provisions of the Insurance
Policies, all requirements of the issuer of any of the Insurance Policies and
all orders, rules, regulations and any other requirements of the National Board
of Fire Underwriters (or any other body exercising similar functions) binding
upon the Grantor or applicable to the Property, any adjoining vaults, sidewalks,
parking areas or driveways or any use or condition thereof.
"LAND" is defined in Granting Clause I.
"LEASE" means any lease, tenancy, subtenancy, license, franchise,
concession or other occupancy agreement relating to the Property, together with
any guarantee of the obligations of the landlord or the tenant thereunder, or
any occupancy or right to possession under any federal or state bankruptcy code
in the event of the rejection of any Lease by the landlord or its trustee
pursuant to said code; "LANDLORD" means the landlord, sublandlord, lessor,
sublessor, franchisor or other grantor of a right of occupancy under a Lease and
any guarantor of its obligations thereunder; and "TENANT" means the tenant,
subtenant, lessee, sublessee, licensee, franchisee, concessionaire or other
occupant under a Lease and any guarantor of its obligations thereunder.
"LEGAL REQUIREMENTS" means all provisions of the Permitted
Encumbrances, all provisions of the Permits and all applicable laws (including
any Environmental Laws), statutes, codes, acts, ordinances, orders, judgments,
decrees, injunctions, rules, regulations, directions and requirements of, and
agreements with, governmental bodies, agencies or officials, now or hereafter
applicable to the Property, or any use or condition thereof.
"LIEN" is defined in the Indenture.
"NATIONAL FLOOD INSURANCE PROGRAM" means the National Flood Insurance
Act of 1968 and the Flood Disaster Protection Act of 1973 (42 U.S.C. Sections
4001, et seq.)
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"NOTE GUARANTIES" is defined in the Recitals..
"NOTES" is defined in the Recitals.
"OFFICERS' CERTIFICATE" is defined in the Indenture.
"OPINION OF COUNSEL" is defined in the Indenture.
"PERMITS" is defined in Granting Clause VIII.
"PERMITTED ENCUMBRANCES" is defined in the Indenture.
"PERSON" is defined in the Indenture.
"PLEDGE AND SECURITY AGREEMENT" is defined in the Indenture.
"PLEDGED EQUIPMENT" is defined in Section 6.03(f).
"POST-DEFAULT RATE" means the interest rate owed on any overdue
payments of principal or interest on the Notes as provided in each Note.
"PROPERTY" is defined in Granting Clause II.
"RECEIVER" is defined in Section 5.02(a)(iv).
"REGISTRATION RIGHTS AGREEMENT" is defined in the Indenture.
"RENTS" is defined in Granting Clause VII.
"RESTORATION" means the restoration, repair, replacement or rebuilding
of the Property after a Casualty or Condemnation and "RESTORE" means to restore,
repair, replace or rebuild the Property after a Casualty or Condemnation, in
each case as nearly as possible to its value and condition immediately prior to
such Casualty or Condemnation.
"REVISED ARTICLE 9" means revised Article 9 of the Uniform Commercial
Code as set forth in the 1998 Official Text thereof; provided that, when used
with respect to any jurisdiction on or after the date when revised Article 9
(with or without local changes therein) first becomes effective in such
jurisdiction, "Revised Article 9" refers to Article 9 as in effect in such
jurisdiction from time to time.
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"REVISED UCC" means (i) before the UCC Revision Date, the Uniform
Commercial Code as set forth in the 1998 Official Text thereof and (ii) on and
after the UCC Revision Date, the UCC.
"SECURED OBLIGATIONS" is defined in the Recitals.
"SECURED PARTIES" means the (i) the Beneficiary, (ii) the Indenture
Trustee, and (iii) the holders from time to time of the Notes. At the time of
the execution and delivery of this Deed of Trust, the beneficial owners of the
Secured Obligations and their respective addresses are as set forth on Schedule
I attached hereto.
"SECURITY DOCUMENTS" is defined in the Indenture.
"TRANSFER" means, when used as a noun, any sale, conveyance,
assignment, lease or other transfer and, when used as a verb, to sell, convey,
assign, lease or otherwise transfer, in each case (i) whether voluntary or
involuntary, (ii) whether direct or indirect and (iii) including any agreement
providing for a Transfer or granting any right or option providing for a
Transfer.
"TRUST INDENTURE ACT" is defined in the Indenture.
"TRUST PROPERTY" is defined in the Granting Clauses.
"TRUSTEE" is defined in the Preamble.
"UNAVOIDABLE DELAYS" means delays due to acts of God, fire, flood,
earthquake, explosion or other Casualty, inability to procure or shortage of
labor, equipment, facilities, sources of energy (including electricity, steam,
gas or gasoline), materials or supplies, failure of transportation, strikes,
lockouts, action of labor unions, Condemnation, litigation relating to Legal
Requirements, inability to obtain Permits or other causes beyond the control of
the Grantor, provided that lack of funds shall not be deemed to be a cause
beyond the control of the Grantor.
"UCC" means the Uniform Commercial Code as in effect in the State in
which the Land and Improvements are located provided that if by reason of
mandatory provisions of law, the perfection or the effect of perfection or non-
perfection of the Lien on any Trust Property is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State in which the
Land and Improvements are located, "UCC" means the Uniform Commercial Code as in
effect in such jurisdictions for purposes of the provisions hereof relating to
such perfection or effect of perfection or non-perfection.
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"UCC REVISION DATE" means the date when Revised Article 9 first becomes
effective in the State in which the Land and Improvements are located; provided
that, if perfection or the effect of perfection or non-perfection or the
priority of any Lien on any Trust Property is governed by the Uniform Commercial
Code as in effect in a jurisdiction other than the State in which the Land and
Improvements are located, "UCC Revision Date" means the date when Revised
Article 9 first becomes effective in such other jurisdiction for purposes of the
provisions hereof relating to such perfection, effect of perfection or
non-perfection or priority. Such provisions often refer to the relevant date as
the "applicable UCC Revision Date".
(b) In this Deed of Trust, unless otherwise specified, references to
this Deed of Trust, Agreements, Material Agreements, Leases, Permits, Indenture,
Notes, Credit Documents, and Security Documents include all amendments,
supplements, consolidations, replacements, restatements, extensions, renewals
and other modifications thereof, in whole or in part.
SECTION 1.02. Interpretation. In this Deed of Trust, unless otherwise
specified, (i) singular words include the plural and plural words include the
singular; (ii) words which include a number of constituent parts, things or
elements, including the terms Leases, Improvements, Land, Secured Obligations,
Property and Trust Property, shall be construed as referring separately to each
constituent part, thing or element thereof, as well as to all of such
constituent parts, things or elements as a whole; (iii) words importing any
gender include the other genders; (iv) references to any Person include such
Person's successors and assigns and in the case of an individual, the word
"SUCCESSORS" includes such Person's heirs, devisees, legatees, executors,
administrators and personal representatives; (v) references to any statute or
other law include all applicable rules, regulations and orders adopted or made
thereunder and all statutes or other laws amending, consolidating or replacing
the statute or law referred to; (vi) the words "CONSENT", "APPROVE" and "AGREE",
and derivations thereof or words of similar import, mean the prior written
consent, approval or agreement of the Person in question; (vii) the words
"include" and "including", and words of similar import, shall be deemed to be
followed by the words "without limitation"; (viii) the words "HERETO", "HEREIN",
"HEREOF" and "HEREUNDER", and words of similar import, refer to this Deed of
Trust in its entirety; (ix) references to Articles, Sections, Schedules,
Exhibits, subsections, paragraphs and clauses are to the Articles, Sections,
Schedules, Exhibits, subsections, paragraphs and clauses of this Deed of Trust;
(x) the Schedules and Exhibits to this Deed of Trust are incorporated herein by
reference; (xi) the titles and headings of Articles, Sections, Schedules,
Exhibits, subsections, paragraphs and clauses are inserted as a matter of
convenience and shall not affect the construction of this Deed of Trust; (xii)
all obligations of the Grantor hereunder shall be satisfied by the Grantor at
the Grantor's sole cost and expense; and (xiii) all rights and powers granted to
the Beneficiary or the Trustee hereunder shall be deemed to be coupled with an
interest and be irrevocable.
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SECTION 1.03. Resolution of Drafting Ambiguities. The Grantor
acknowledges that it was represented by counsel in connection with this Deed of
Trust, that it and its counsel reviewed and participated in the preparation and
negotiation of this Deed of Trust and that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party or the
Beneficiary shall not be employed in the interpretation of this Deed of Trust.
ARTICLE 2
CERTAIN WARRANTIES AND COVENANTS OF THE GRANTOR
SECTION 2.01. Title and Authority. (a) The Grantor represents and
warrants that (i) the Grantor is the owner of the fee simple interest in the
Land and the Improvements thereon, and the owner of the Equipment therein and
all other items constituting the Trust Property, in each case free and clear of
all Liens other than the Permitted Encumbrances; (ii) the execution, delivery
and performance by the Grantor of this Deed of Trust are within the Grantor's
power, have been duly authorized by all necessary action, require no action by
or in respect of, or filing with, any governmental body, agency or official
(except for the recording or filing of this Deed of Trust) and do not
contravene, or constitute a default under, any provision of applicable law, the
Certificate of Incorporation or by-laws of the Grantor or any agreement,
judgment, injunction, order, decree or other instrument binding upon the Grantor
or relating to the Property or result in the creation or imposition of any Lien
on any asset of the Grantor (other than the Lien of this Deed of Trust); (iii)
this Deed of Trust constitutes a valid and binding agreement of the Grantor,
enforceable against the Grantor in accordance with its terms, except as (x) the
enforceability may be limited by bankruptcy, insolvency or similar laws now or
hereafter in effect relating to or affecting creditor's rights or remedies
generally and (y) the availability of equitable remedies may be limited by
equitable principles of general applicability; and (iv ) the Lien of this Deed
of Trust for the ratable benefit of the Secured Parties will constitute a valid
and perfected first-priority Lien on the Trust Properties securing the Secured
Obligations, enforceable as such against all creditors of the Grantor (and any
Persons purporting to purchase any of the Trust Property from the Grantor),
subject to no Liens other than Permitted Encumbrances in existence on the date
thereof.
(b) The Grantor shall (i) cause the representations and warranties in
Section 2.01(a) to be true and correct in each and every respect; and (ii)
forever preserve, protect, warrant and defend (A) its estate, right, title and
interest in and to the Trust Property, (B) the validity, enforceability and
priority of the Lien of this Deed of Trust on the Trust Property, and (C) the
right, title and interest of the Beneficiary, the Trustee and any purchaser at
any sale of the Trust Property
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hereunder or relating hereto, in each case against all other Liens and claims
whatsoever, subject only to the Permitted Encumbrances.
(c) The Grantor shall (i) promptly correct any material defect or
error which may be discovered in this Deed of Trust or any financing statement
or other document relating hereto; and (ii) promptly execute, acknowledge,
deliver, record and re-record, register and re-register, and file and re-file
this Deed of Trust and any financing statements or other documents which the
Trustee may reasonably require from time to time (all in form and substance
satisfactory to the Trustee) in order (A) to effectuate, complete, perfect,
continue or preserve the Lien of this Deed of Trust as a first Lien on the Trust
Property, whether now owned or hereafter acquired, subject only to the Permitted
Encumbrances, or (B) to effectuate, complete, perfect, continue or preserve any
right, power or privilege granted or intended to be granted to the Beneficiary
or the Trustee.
SECTION 2.02. Secured Obligations. The Grantor shall duly and
punctually pay, perform and observe the Secured Obligations.
SECTION 2.03. Impositions. The Grantor shall (i) subject to Section
2.06, duly and punctually pay all Impositions prior to the delinquency date
thereof; (ii) subject to Section 2.06, duly and punctually file all returns and
other statements required to be filed with respect to any Imposition; (iii)
promptly notify the Beneficiary of the receipt by the Grantor of any notice of
default in the payment of any Imposition or in the filing of any return or other
statement relating to any Imposition and simultaneously furnish to the
Beneficiary a copy of such notice of default; and (iv) upon reasonable request,
promptly deliver to the Beneficiary (A) a certificate of the Grantor evidencing
that the Grantor has complied with the provisions of this Section 2.03,
accompanied to the extent required by copies of official receipts evidencing the
payment of the Impositions, and (B) such other information and documents with
respect to the matters referred to in this Section as the Beneficiary shall
reasonably request.
SECTION 2.04. Legal and Insurance Requirements. (a) The Grantor
represents and warrants that (i) the Property and the use and operation thereof
materially comply with all Legal Requirements and Insurance Requirements; (ii)
there is no default under any Legal Requirement or Insurance Requirement which
would have a material adverse effect on the Property; and (iii) the execution,
delivery and performance of this Deed of Trust will not materially contravene
any provision of or constitute a material default under any Legal Requirement or
Insurance Requirement.
(b) The Grantor shall (i) subject to Section 2.06, duly and punctually
comply in all material respects with all Legal Requirements and Insurance
Requirements; (ii) procure, maintain and, subject to Section 2.06, duly and
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punctually comply in all material respects with all Permits required for any
construction, reconstruction, repair, alteration, addition, improvement,
maintenance, management, use and operation of the Property; (iii) promptly
notify the Beneficiary of the receipt by the Grantor of any notice of default
regarding any Legal Requirement or Insurance Requirement or any reasonably
likely or actual termination of any Permit or Insurance Policy and furnish to
the Beneficiary a copy of such notice of default or termination; (iv) promptly
after obtaining knowledge thereof notify the Beneficiary of any condition which,
with or without the giving of notice or the passage of time or both, would
constitute a default regarding any Legal Requirement or Insurance Requirement or
a termination of any Permit or Insurance Policy and the action being taken to
remedy such condition; (v) upon request, promptly furnish to the Beneficiary a
copy of any Permit obtained by the Grantor with respect to the Property after
the date hereof; and (vi) upon reasonable request, promptly deliver to the
Beneficiary (A) a certificate of the Grantor evidencing that the Grantor has
complied with the provisions of this Section, and (B) such other information and
documents with respect to the matters referred to in this Section as the
Beneficiary shall reasonably request.
SECTION 2.05. Status and Care of the Property. (a) The Grantor
represents and warrants that (i) the Property is served by all necessary water
treatment and pollution control facilities and all necessary water, sanitary and
storm sewer, drainage, electric, steam, gas, telephone and other utility
facilities which facilities have capacities which are generally sufficient to
serve the current and anticipated future use and occupancy of the Property as
presently constructed; (ii) the Property has legal access to all streets or
roads necessary for the operation of the Property, which have been fully
completed and properly dedicated, accepted or otherwise legally constructed as a
public street or road (including, as appropriate, access over properly-granted,
perpetual, private rights of way or easements) sufficient to serve the current
and anticipated future use and operation of the Property as presently
constructed; and (iii) either the Property is not located in an area designated
as "flood prone" (as defined under the regulations adopted under the National
Flood Insurance Program or, to the extent the Property is located (in whole or
part) in an area designated as "flood prone", the Grantor shall maintain in full
force and effect flood insurance under the National Flood Insurance Program, to
the extent and in the amounts required by applicable law.
(b) The Grantor (i) shall not cause or permit the Property to be
misused, wasted, disfigured or damaged in any material manner or (except,
subject to the provisions of this Section, for reasonable wear and tear) to
deteriorate in any material manner; (ii) shall operate and maintain the
Property, or cause the same to be operated and maintained, in good order, repair
and condition; (iii) shall promptly make, or cause to be made, all repairs,
replacements, renewals, restorations, alterations, additions and improvements of
and to the Property, whether interior or exterior, structural or nonstructural,
foreseen or unforeseen, or necessary or appropriate to
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keep the Property in good order, repair and condition, all of which repairs,
replacements, renewals and restorations shall be equal in quality to or better
than the Property as of the date hereof; (iv) shall do or cause others to do all
shoring of the Property, including the foundations and walls thereof, and to
take all other actions necessary or appropriate for the preservation and safety
thereof by reason of or in connection with any excavation or other construction
operation on the Property, whether or not the Grantor shall be required by any
Legal Requirement to take such action or be liable for failure to do so; (v)
shall not initiate or affirmatively support any change in the applicable zoning
adversely affecting the Property, seek any variance (or any change in any
variance) under the zoning adversely affecting the Property, execute or file any
subdivision or other plat or map adversely affecting the Property or consent to
any of the foregoing; (vi) shall, promptly after receiving notice or obtaining
knowledge of any proposed or threatened change in the zoning adversely affecting
the Property which would result in the current use of such Property being a
non-conforming use, notify the Beneficiary thereof and diligently contest the
same by any action or proceeding deemed reasonably appropriate by the Grantor or
reasonably requested by the Beneficiary; and (vii) upon reasonable request,
shall promptly deliver to the Beneficiary (A) a certificate of the Grantor
evidencing that the Grantor has complied with the provisions of this Section and
(B) such other information and documents with respect to the matters referred to
in this Section as the Beneficiary shall reasonably request.
SECTION 2.06. Permitted Contests. The Grantor may contest, by
appropriate proceedings conducted in good faith and with due diligence, any
Legal Requirement, any Insurance Requirement, any Imposition or Lien therefor on
the Trust Property or any interest therein, or any Lien of any laborer,
mechanic, materialman, supplier or vendor on the Trust Property or any interest
therein, provided that (i) if the matter being contested affects or relates to a
material portion of the Trust Property, prior notice of the contest is given to
the Beneficiary; (ii) no material Trust Property is in danger of being sold,
forfeited or lost while such proceedings are pending; (iii) the Beneficiary and
the other Secured Parties are not in danger of any criminal or material civil
penalty or any other liability for failure to comply therewith and no material
Trust Property is subject to the imposition of any Lien as a result of such
failure which is not properly contested pursuant to this Section 2.06; (iv) in
the case of any Insurance Requirement, no Insurance Policy or coverage is in
danger of being forfeited or lost while such proceedings are pending; and (v) in
the case of (A) any Lien of a laborer, mechanic, materialman, supplier or
vendor, or (B) any Imposition or Lien therefor, such proceedings suspend the
foreclosure of such Lien or any other collection thereof from the Trust Property
and all interests therein. Upon reasonable request, the Grantor shall promptly
deliver to the Beneficiary (x) a certificate of the Grantor describing in detail
satisfactory to the Beneficiary the contests pending as of the date thereof and
evidencing that the Grantor has complied with the provisions of this Section
with respect thereto and (y) such other information and documents with
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respect to the contests conducted pursuant to this Section as the Beneficiary
shall reasonably request.
SECTION 2.07. Other Instruments. (a) The Grantor shall execute,
acknowledge and deliver, from time to time, such further instruments as Trustee
may reasonably require to accomplish the purposes of this Deed of Trust.
(b) The Grantor, immediately upon the execution and delivery of this
Deed of Trust and thereafter from time to time, shall cause this Deed of Trust,
any mortgage supplemental hereto and each instrument of further assurance to be
filed, registered or recorded and refiled, re-registered or re-recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice, and perfect the lien, of this Deed of Trust upon the
Trust Property.
(c) The Grantor shall pay all filing, registration and recording fees,
all refiling, re-registration and re-recording fees and all expenses incident to
the execution and acknowledgment of this Deed of Trust, any mortgage
supplemental hereto 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 Indenture, the Notes, this Deed of Trust, the other Security
Documents, any deed of trust supplemental hereto or any instruments of further
assurance.
SECTION 2.08. Liens. The Grantor shall not create or permit to be
created or to remain, and shall, subject to Section 2.06, immediately discharge
or cause to be discharged, any Lien on the Trust Property, in each case (i)
whether voluntarily or involuntarily created, and (ii) whether or not
subordinated hereto, except Permitted Encumbrances and the Lien of this Deed of
Trust. The provisions of this Section 2.08 shall apply to each and every Lien
(other than Permitted Encumbrances) on the Trust Property, regardless of whether
or not a consent to, or waiver of a right to consent to, any other Lien thereon
has been previously obtained in accordance with the terms of the Credit
Documents.
SECTION 2.09. Transfer. The Grantor shall not Transfer, or suffer any
Transfer of, the Trust Property or any part thereof or interest therein, except
as permitted by Section 11.02 of the Indenture. The provisions of this Section
2.09 shall apply to each and every Transfer of the Trust Property or any
interest therein, regardless of whether or not a consent to, or waiver of a
right to consent to, any other Transfer thereof has been previously obtained in
accordance with the terms of the Credit Documents.
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ARTICLE 3
INSURANCE, CASUALTY AND CONDEMNATION
SECTION 3.01. Insurance. (a) The Grantor shall maintain in full force
and effect insurance policies with respect to the Property as required by
Section 4.05 of the Indenture. The physical damage insurance maintained with
respect to the Property shall (i) bear the New York standard non-contributory
mortgage endorsement (or equivalent thereto) in favor of the Beneficiary and
(ii) provide that all property losses incurred against shall be adjusted by the
Grantor, subject to the Beneficiary's rights pursuant to Section 3.03. The
public liability insurance maintained with respect to the Property shall name
the Beneficiary and the other Secured Parties as additional insureds. All
insurance maintained by the Grantor with respect to the Property shall provide
that no cancellation or material change thereof shall be effective until at
least thirty (30) days after receipt by the Beneficiary of written notice
thereof; and all losses shall be payable notwithstanding any foreclosure or
other action or proceeding taken pursuant to this Deed of Trust.
(b) The Grantor shall furnish to the Beneficiary from time to
time not later than fifteen (15) days prior to the expiration date of each
policy required to be maintained by the Grantor hereunder, an insurance
certificate or certificates executed by the insurer or its authorized agent with
respect to the new or extended policy. If the Grantor fails to maintain the
Insurance Policies required to be maintained under this Section, the Beneficiary
shall have the right to obtain such Insurance Policies or pay the premiums
therefor. If the Beneficiary obtains such Insurance Policies or pays the premium
therefor, upon demand, the Grantor shall reimburse the Beneficiary for its
expenses in connection therewith, together with interest thereon at the Post-
Default Rate.
(c) The Grantor may effect such coverage under subsection (a) of this
Section under blanket insurance policies covering the other properties of the
Company, provided that (i) any such blanket insurance policy shall specify
therein, or the insurer under such policy shall certify to the Beneficiary, (A)
the maximum amount of the total insurance afforded by the blanket policy
allocated to the Property; and (B) any sublimits in such blanket policy
applicable to the Property, which sublimits shall not be less than the amounts
required pursuant to this Section; (ii) any such blanket insurance policy shall
comply in all respects with the other provisions of this Section; and (iii) the
protection afforded under any such blanket insurance policy shall be no less
than that which would have been afforded under a separate policy relating only
to the policy.
(d) The Grantor shall not maintain additional or separate insurance
concurrent in form or contributing in the event of loss with the insurance
required under this Section, unless the Beneficiary and the other Secured
Parties are included in such policies as loss payees or additional insureds.
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SECTION 3.02. Casualty. (a) The Grantor represents and warrants that,
as of the date hereof, there is no Casualty materially affecting the Property.
(b) In the event of any Casualty, the Grantor shall (i) promptly give
notice thereof to the Beneficiary in the form of an Officers' Certificate,
describing in detail reasonably satisfactory to the Beneficiary the nature and
extent of such Casualty, the work required to Restore the Property affected
thereby and the Grantor's best estimate of the cost of such Restoration,
itemized in detail reasonably satisfactory to the Beneficiary; and (ii)
immediately take such action as may be reasonably necessary or appropriate to
preserve the undamaged portion of such Property and to protect against personal
injury or property damage. In the event of any Casualty, Grantor shall promptly
commence and diligently pursue to completion, or cause to be commenced and
diligently pursued to completion, the Restoration of such Property, subject to
Unavoidable Delays, whether or not the Insurance Proceeds with respect to such
Casualty available to the Grantor to pay the cost of Restoration are sufficient,
provided that, pursuant to Section 11.03 of the Indenture and subject to Section
3.03 below, the Beneficiary shall make available to Grantor any Insurance
Proceeds held by the Beneficiary.
SECTION 3.03. Insurance Claims and Proceeds. In the event of any
Casualty, (i) the Grantor shall promptly make proof of loss under the applicable
Insurance Policies and diligently pursue to conclusion its claim for the
Insurance Proceeds payable thereunder and any suit, action or other proceeding
necessary or appropriate to obtain payment of such Insurance Proceeds; (ii) if
an Event of Default is continuing, the Grantor shall have no right to settle,
and shall not settle, any such claim or proceeding without the consent of the
Beneficiary, which consent shall not be unreasonably withheld or delayed; and
(iii) upon receipt of Insurance Proceeds aggregating $2,500,000 or more, the
Grantor shall promptly pay the Insurance Proceeds with respect to any Casualty
to the Beneficiary for deposit in the Cash Collateral Account (except as
provided in Section 11.03 of the Indenture) to be held, applied and disbursed in
accordance with Sections 11.02 and 11.03 of the Indenture.
SECTION 3.04. Condemnation. (a) The Grantor represents and warrants
that, as of the date hereof, (i) there is no Condemnation affecting any
Property, (ii) there are no negotiations or proceedings which might result in
such a Condemnation, and (iii) to the knowledge of the Grantor, no such
Condemnation is proposed or threatened.
(b) In the event of any material Condemnation or the commencement of
any negotiation or proceeding which might result in a material Condemnation, or
in the event of any proposed or threatened material Condemnation, the Grantor
shall promptly after receiving notice or obtaining knowledge thereof give notice
thereof to the Beneficiary in the form of an Officers' Certificate, describing
in detail reasonably satisfactory to the Beneficiary the nature and extent of
such
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Condemnation, negotiation or proceeding, the action which the Grantor intends to
take with respect thereto, the work required to Restore the Property affected by
such Condemnation and the Grantor's best estimate of the cost of such
Restoration. In the event of any such Condemnation, whether or not the Awards
with respect to such Condemnation available to the Grantor to pay the cost of
Restoration are sufficient for that purpose, the Grantor shall promptly commence
and diligently pursue to completion the Restoration of the Property affected by
such Condemnation, subject to Unavoidable Delays, provided that, pursuant to
Section 11.03 of the Indenture and subject to Section 3.05 below, the
Beneficiary shall make available to Grantor any Awards held by the Beneficiary.
SECTION 3.05. Condemnation Proceedings and Awards. In the event of any
Condemnation or the commencement of any negotiation or proceeding which might
result in a Condemnation, or in the event of any proposed or threatened
Condemnation, (i) the Grantor shall, promptly after receiving notice or
obtaining knowledge thereof, do all things deemed necessary or appropriate by
the Grantor or reasonably requested by the Beneficiary to preserve the Grantor's
interest in such Property and promptly make claim for Awards payable with
respect thereto and diligently pursue to conclusion such claim for such Awards
and any suit, action or other proceeding necessary or appropriate to obtain
payment thereof; (ii) if an Event of Default is continuing, the Grantor shall
have no right to settle, and shall not settle, any such claim, negotiation or
proceeding without the consent of the Beneficiary, which consent shall not be
unreasonably withheld or delayed; and (iii) upon receipt of Awards aggregating
$2,500,000 or more, the Grantor, shall promptly pay the Awards with respect to
such Condemnation to the Beneficiary for deposit in the Cash Collateral Account,
(except as provided in Section 11.03 of the Indenture) to be held, applied and
disbursed in accordance with Sections 11.02 and 11.03 of the Indenture.
ARTICLE 4
INCREASED COSTS AND INDEMNIFICATION
SECTION 4.01. Increased Costs. In the event of the enactment after the
date hereof of any applicable law deducting from the value of the Property for
the purpose of taxation any Lien thereon or changing in any way the applicable
law for the taxation of mortgages, deeds of trust or other Liens or obligations
secured thereby, or the manner of collection of such taxes, so as to affect this
Deed of Trust, the Secured Obligations, the Beneficiary or any other Secured
Party, upon demand by the Trustee, to the extent permitted under applicable law,
the Grantor shall pay or reimburse the Beneficiary or such Secured Party, for
all taxes, assessments or other charges which the Beneficiary or such Secured
Party is obligated to pay as a result thereof.
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SECTION 4.02. Indemnification. The Grantor shall indemnify each of the
Trustee, the Beneficiary, and the other Secured Parties (collectively, the
"INDEMNITEES") against, and hold each Indemnitee harmless from, any and all
losses, claims, liabilities and related expenses, including the reasonable and
duly documented fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (a) the Trustee's or the Beneficiary's
exercise pursuant to the terms of this Deed of Trust of any of its rights and
remedies hereunder upon the default, or failure to perform as required
hereunder, of the Grantor; (b) any accident, injury to or death of persons or
loss of or damage to property occurring in, on or about the Trust Property or
any part thereof or on the adjoining sidewalks, curbs, adjacent property or
adjacent parking areas, street or ways; (c) any failure on the part of the
Grantor to perform or comply with any of the terms of this Deed of Trust; (d)
the performance of any labor or services or the furnishing of any materials or
other property in respect of the Trust Property or any part thereof; or (e) any
other conduct or misconduct of the Grantor, any lessee of any of the Trust
Property, or any of their respective agents, contractors, subcontractors,
servants, employees, licensees or invitees; provided, however, that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and unappealable judgment to have
resulted, except as otherwise required under the Trust Indenture Act, from the
gross negligence or willful misconduct of such Indemnitee. Any amount payable
under this Section 4.02 will be deemed a demand obligation and will bear
interest at the Post-Default Rate from the date of such demand through the date
paid. The obligations of the Grantor under this Section, in respect of periods
prior to the release of this Deed of Trust, shall survive the release of this
Deed of Trust.
ARTICLE 5
DEFAULTS, REMEDIES AND RIGHTS
SECTION 5.01. Events of Default. (a) subject to Section 6.02 of the
Indenture, any Event of Default under the Indenture shall constitute an Event of
Default hereunder.
(b) All notice and cure periods provided in the Indenture and the
other Credit Documents shall run concurrently with any notice or cure periods
provided under applicable law.
SECTION 5.02. Remedies. (a) Subject to Section 6.02 of the Indenture,
if an Event of Default is continuing, the Beneficiary or the Trustee is hereby
authorized and empowered, at its option, and without affecting the lien hereby
created or the
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priority of said lien or any right of the Beneficiary hereunder, to declare,
without further notice, all Secured Obligations to be immediately due and
payable, whether or not such Event of Default is thereafter remedied by Grantor.
Upon such acceleration, all Secured Obligations shall bear interest thereon at
the Post-Default Rate, and the Beneficiary or the Trustee may immediately
proceed to foreclose this Deed of Trust and/or exercise any right, power or
remedy provided by any of the Credit Documents, including the following remedies
and rights, subject to mandatory provisions of applicable law, whether or not
the maturity of the Secured Obligations has been accelerated, to wit:
(i) to institute a proceeding or proceedings, by
advertisement, judicial process or otherwise as provided under
applicable law, for the complete or partial foreclosure of this Deed of
Trust or the complete or partial sale of the Trust Property under the
power of sale hereunder or under any applicable provision of law; or
(ii) to sell the Trust Property, and all estate, right, title,
interest, claim and demand of the Grantor therein and thereto, and all
rights of redemption thereof, at one or more sales, as an entirety or
in parcels, with such elements of real or personal property, at such
time and place and upon such terms as the Beneficiary may deem
expedient or as may be required under applicable law, and in the event
of a sale hereunder or under any applicable provision of law of less
than all of the Trust Property, this Deed of Trust shall continue as a
Lien on the remaining Trust Property; or
(iii) to institute a suit, action or proceeding for the
specific performance of any of the provisions of the Security
Documents; or
(iv) to apply for the appointment of a receiver, supervisor,
trustee, liquidator, conservator or other custodian (a "RECEIVER") of
the Trust Property, to be appointed, to the fullest extent permitted by
law, as a matter of right and without regard to, or the necessity to
disprove, the adequacy of the security for the Secured Obligations or
the solvency of the Company, the Grantor or any other Guarantor, and
the Grantor hereby, to the full extent permitted by applicable law,
irrevocably waives such necessity and consents to such appointment,
said appointee to be vested with the fullest powers permitted under
applicable law, including to the extent permitted under applicable law
those under clause (v) of this subsection 5.02(a); or
(v) to enter upon the Property, by the Beneficiary or a
Receiver (as the case may be as the Person exercising the rights under
this clause), and, to the extent permitted by law, exclude the Grantor
and its managers, employees, contractors, agents and other
representatives therefrom in accordance with applicable law, without
liability for trespass, damages or
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otherwise, and take possession of all other Trust Property and all
books, records and accounts of the Grantor relating thereto, and upon
demand the Grantor shall surrender possession of the Property, the
other Trust Property and such books, records and accounts to the Person
exercising the rights under this clause after the occurrence of any
Event of Default; and having and holding the same, the Person
exercising the rights under this clause may use, operate, manage,
preserve, control and otherwise deal therewith and conduct the business
thereof, either personally or by its managers, employees, contractors,
agents or other representatives, without interference from the Grantor
or its managers, employees, contractors, agents and other
representatives; and, upon each such entry and from time to time
thereafter, at the expense of the Grantor and the Trust Property,
without interference by the Grantor or its managers, employees,
contractors, agents and other representatives, the Person exercising
the rights under this clause may, as such Person deems expedient, (A)
insure or reinsure the Property, (B) make all necessary or proper
repairs, renewals, replacements, alterations, additions, betterments
and improvements to the Property and (C) in such Person's own name or,
at the option of such Person, in the Grantor's name, exercise all
rights, powers and privileges of the Grantor with respect to the Trust
Property including the right to enter into Leases with respect to the
Property, including Leases extending beyond the time of possession by
the Person exercising the rights under this clause; and the Person
exercising the rights under this clause shall not be liable to account
for any action taken hereunder, other than for Rents actually received
by such Person, and shall not be liable for any loss sustained by the
Grantor resulting from any failure to let the Property or from any
other act or omission of such Person, except to the extent such loss is
caused, unless otherwise required under the Trust Indenture Act, by
such Person's own willful misconduct or gross negligence; in exercising
the rights under this Section 5.02(a)(v), the Beneficiary acknowledges
that the agent under the Credit Agreement and its agent or
representatives, upon notice to the Beneficiary, may enter upon the
Property to inspect, remove or take possession of inventory securing
the obligations under the Credit Agreement and may conduct a public or
private sale of such inventory at the Property provided any such entry
or other activities should not damage or diminish the value of the
Trust Property or interfere with the operation of the same; or
(vi) with or, to the fullest extent permitted by law, without
entry upon the Property, in the name of the Beneficiary or a Receiver
(as required by law and as the case may be as the Person exercising the
rights under this clause) or, at such Person's option, in the name of
the Grantor, to collect, receive, xxx for and recover all Rents and
proceeds of or derived from the Trust Property, and after deducting
therefrom all costs, expenses and liabilities of every character
reasonably incurred by the Person exercising the rights under this
clause in collecting the same and in using, operating,
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managing, preserving and controlling the Trust Property and otherwise
in exercising the rights under clause (v) of this subsection 5.02(a) or
any other rights hereunder, including all amounts necessary to pay the
Impositions, the Rents, Insurance Premiums and other costs, expenses
and liabilities relating to the Property, as well as compensation for
the services of such Person and its managers, employees, contractors,
agents or other representatives, to apply the remainder as provided in
Section 5.06; or
(vii) to take any action with respect to any Trust Property
permitted under the UCC; or
(viii) to take any other action, or pursue any other remedy or
right, as the Beneficiary or the Trustee may have under applicable law,
and the Grantor does hereby grant the same to the Beneficiary or the
Trustee; or
(ix) at any time after the exercise by the Beneficiary of the
option to declare the Secured Obligations to be immediately due and payable, the
Trustee, upon the written request of the Beneficiary; shall foreclose upon and
sell the Trust Property (or any part or parts thereof) to satisfy the Secured
Obligations at public auction at the front door of the courthouse of the county
(or any county if more than one) in the State of West Virginia in which the
Property is located, for cash in hand on the day of sale, after first giving
notice of such sale by publishing such notice in a qualified newspaper of
general circulation published in said county, or if there be no such newspaper
in a qualified newspaper of general circulation published in said county, once a
week for two successive weeks preceding the day of sale, and except as otherwise
provided herein, no other notice of such sale shall be required.
(b) (i) No remedy or right hereunder or under any other Credit
Document shall be exclusive of any other remedy or right, but each
remedy or right hereunder or under any other Credit Document shall be
in addition to, and not in limitation of, any other remedy or right
hereunder, under any other Credit Document or now or hereafter existing
at law or in equity under applicable law.
(ii) Every remedy or right hereunder, under any other Credit
Document or under applicable law may be exercised concurrently or
independently and whenever and as often as deemed appropriate by the
Trustee to the extent permitted by applicable law.
(c) (i) No failure to exercise or delay in exercising any
remedy or right hereunder, under any other Credit Document or under
applicable law shall be construed as a waiver of any Default or other
occurrence hereunder or under any other Credit Document.
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(ii) No waiver of, failure to exercise or delay in exercising
any remedy or right hereunder, under any other Credit Document or under
applicable law upon any Default or other occurrence hereunder or under
any other Credit Document shall be construed as a waiver of, or
otherwise limit the exercise of, such remedy or right upon any other or
subsequent Default or other occurrence hereunder or under any other
Credit Document.
(iii) No single or partial exercise of any remedy or right
hereunder, under any other Credit Document or under applicable law upon
any Default or other occurrence hereunder or under any other Credit
Document shall preclude or otherwise limit the exercise of any other
remedy or right hereunder, under any other Credit Document or under
applicable law upon such Default or occurrence or upon any other or
subsequent Default or other occurrence hereunder or under any other
Credit Document.
(iv) The acceptance by the Beneficiary, Trustee or any Secured
Party of any payment less than the amount of the Secured Obligation in
question shall be deemed to be an acceptance on account only and shall
not be construed as a waiver of any Default hereunder or under any
other Credit Document with respect thereto.
(v) The acceptance by the Beneficiary, Trustee or any Secured
Party of any payment of, or on account of, any Secured Obligation shall
not be deemed to be a waiver of any Default or other occurrence
hereunder or under any other Credit Document with respect to any other
Secured Obligation.
(d) In the event that the Beneficiary or the Trustee has proceeded to
enforce any remedy or right hereunder or with respect hereto by foreclosure,
sale, entry or otherwise, it may compromise, discontinue or abandon such
proceeding for any reason without notice to the Grantor or any other Person;
and, in the event that any such proceeding shall be discontinued, abandoned or
determined adversely for any reason, the Grantor, the Beneficiary and the
Trustee shall retain and be restored to their former positions and rights
hereunder with respect to the Trust Property, subject to the Lien hereof except
to the extent any such adverse determination specifically provides to the
contrary.
(e) For the purpose of carrying out any provisions of Section
5.02(a)(v), 5.02(a)(vi), 5.05, 5.07, or 5.10 or any other provision hereunder
authorizing the Beneficiary or the Trustee or any other Person to perform any
action on behalf of the Grantor, the Grantor hereby irrevocably appoints the
Beneficiary or the Trustee or a Receiver appointed pursuant to Section
5.02(a)(iv) or such other Person (as the case may be as the Person appointed
under this subsection) as the attorney-in-fact of the Grantor (with a power to
substitute any other Person in its place as such attorney-in-fact) to act in the
name of the Grantor or, at the option of the Person
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appointed to act under this subsection, in such Person's own name, to take the
action authorized under Section 5.02(a)(v), 502.(a)(vi), 5.05, 5.07, or 5.10 or
such other provision, and to execute, acknowledge and deliver any document in
connection therewith or to take any other action incidental thereto, as the
Person appointed to act under this subsection shall deem appropriate in its
discretion; and the Grantor hereby irrevocably authorizes and directs any other
Person to act on behalf of the foregoing appointment and upon a certificate of
the Person appointed to act under this subsection that such Person is authorized
to act under this subsection.
(f) The Beneficiary shall give the Grantor at least ten days' prior
written notice of the time and place of any public sale of personal property
separately from the real property, or the time after which any such private sale
or other intended disposition thereof will be made. The Beneficiary and the
Grantor agree that such notice constitutes "reasonable notification" within the
meaning of UCC Section 9- 504(3). After the UCC Revision Date, any such notice
shall contain the information specified in Revised UCC Section 9-613, be
authenticated (as defined in the Revised UCC) and be sent to the parties
required to be notified pursuant to Revised UCC Section 9-611(c); provided that,
if the Beneficiary fails to comply with this sentence in any respect, its
liability for such failure shall be limited to the liability (if any) imposed on
it as a matter of law under the UCC.
SECTION 5.03. Waivers by the Grantor. To the extent permitted under
applicable law, the Grantor shall not assert, and hereby irrevocably waives, any
right or defense the Grantor may have under any statute or rule of law or equity
now or hereafter in effect relating to (i) appraisement, valuation, homestead,
exemption, extension, moratorium, stay, redemption, marshalling of the Trust
Property or the other assets of the Grantor, sale of the Trust Property in any
order or notice of deficiency or intention to accelerate any Secured Obligation;
(ii) impairment of any right of subrogation or reimbursement; (iii) any
requirement that at any time any action must be taken against any other Person,
any portion of the Trust Property or any other asset of the Grantor or any other
Person; (iv) any provision barring or limiting the right of the Trustee to sell
any Trust Property after any other sale of any other Trust Property or any other
action against the Grantor or any other Person; (v) any provision barring or
limiting the recovery by the Beneficiary of a deficiency after any sale of the
Trust Property; or (vi) any other provision of applicable law (including any
provision relating to decedents' estates) which might defeat, limit or adversely
affect any right or remedy of the Beneficiary, the Trustee or the holders of the
Secured Obligations under or with respect to this Deed of Trust or the other
Security Documents.
SECTION 5.04. Jurisdiction and Process. (a) To the extent permitted
under applicable law, in any suit, action or proceeding arising out of or
relating to this Deed of Trust or any other Security Document as it relates to
any Trust Property, the Grantor irrevocably consents to the jurisdiction of any
state or federal court sitting
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in the State in which the Property is located and irrevocably waives any defense
or objection which it may now or hereafter have to the jurisdiction of such
court over the venue of such court for or the convenience of such court as the
forum for any such suit, action or proceeding.
(b) Nothing in this Section shall affect the right of the Beneficiary
or the Trustee to bring any suit, action or proceeding arising out of or
relating to this Deed of Trust or any other Security Document in any court
having jurisdiction under the provisions of any other Security Document or
applicable law or to serve any process, notice of sale or other notice in any
manner permitted by any other Security Document or applicable law.
SECTION 5.05. Sales. Except as otherwise provided herein, to the
fullest extent permitted under applicable law, at the election of the
Beneficiary, the following provisions shall apply to any sale of the Trust
Property hereunder, whether made pursuant to the power of sale hereunder, any
judicial proceeding or any judgment or decree of foreclosure or sale or
otherwise:
(a) To the extent permitted by law, any sale may be conducted
by the Beneficiary or the Trustee or by an agent appointed to act on
behalf of such party and the appointment need not be recorded. The
power of sale hereunder or with respect hereto shall not be exhausted
by any sale as to any part or parcel of the Trust Property which is not
sold, unless and until the Secured Obligations shall have been paid in
full, and shall not be exhausted or impaired by any sale which is not
completed or is defective. Any sale may be as a whole or in part or
parcels and, to the fullest extent permitted by law, the Grantor hereby
waives its right to direct the order in which the Trust Property or any
part or parcel thereof is sold.
(b) To the extent permitted by law, any sale may be postponed
or adjourned by public announcement at the time and place appointed for
such sale or for such postponed or adjourned sale without further
notice.
(c) After each sale, the Person conducting such sale shall
execute and deliver to the purchaser or purchasers at such sale a good
and sufficient instrument or instruments granting, conveying, assigning
and transferring all right, title and interest of the Grantor in and to
the Trust Property sold and shall receive the proceeds of such sale and
apply the same as provided in Section 5.06. The Grantor hereby
irrevocably appoints the Person conducting such sale as the
attorney-in-fact of the Grantor (with full power to substitute any
other Person in its place as such attorney-in-fact) to act in the name
of the Grantor or, at the option of the Person conducting such sale, in
such Person's own name, to make without warranty by such Person any
conveyance, assignment, transfer or delivery of the Trust Property
sold, and to execute,
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acknowledge and deliver any instrument of conveyance, assignment,
transfer or delivery or other document in connection therewith or to
take any other action incidental thereto, as the Person conducting such
sale shall deem appropriate in its discretion; and the Grantor hereby
irrevocably authorizes and directs any other Person to act upon the
foregoing appointment and a certificate of the Person conducting such
sale that such Person is authorized to act hereunder. Nevertheless,
upon the request of such attorney-in-fact the Grantor shall promptly
execute, acknowledge and deliver any documentation which such
attorney-in-fact may reasonably require for the purpose of ratifying,
confirming or effectuating the powers granted hereby or any such
conveyance, assignment, transfer or delivery by such attorney-in-fact.
Any statement of fact or other recital made in any instrument referred
to in this Section 5.05(c) given by the Person conducting any sale as
to the nonpayment of any Secured Obligation, the occurrence of any
Event of Default, the amount of the Secured Obligations due and
payable, the notice of the time, place and terms of sale and of the
Trust Property to be sold having been duly given, the refusal, failure
or inability of the Beneficiary to act, the appointment of any
substitute or successor beneficiary, any other act or thing having been
duly done by Grantor, the Beneficiary, the Trustee or any other such
Person, shall be taken as conclusive and binding, absent manifest
error, against all other Persons as evidence of the truth of the facts
so stated or recited.
(d) The receipt of the Person conducting any sale for the
purchase money paid at any such sale shall be sufficient discharge
therefor to any purchaser of any Trust Property sold, and no such
purchaser, or its representatives, grantees or assigns, after paying
such purchase price and receiving such receipt, shall be bound to see
to the application of such purchase price or any part thereof upon or
for any trust or purpose of this Deed of Trust or, in any manner
whatsoever, be answerable for any loss, misapplication or
nonapplication of any such purchase money or be bound to inquire as to
the authorization, necessity, expediency or regularity of such sale.
(e) Subject to mandatory provisions of applicable law, any
sale shall operate to divest all of the estate, right, title, interest,
claim and demand whatsoever, whether at law or in equity, of the
Grantor in and to the Trust Property sold, and shall be a perpetual bar
both at law and in equity against the Grantor and any and all Persons
claiming such Trust Property or any interest therein by, through or
under the Grantor.
(f) Notwithstanding any provision herein to the contrary, at
any sale, the Beneficiary may bid for and acquire the Trust Property
sold and, in lieu of paying cash therefor, may make settlement for the
purchase price by
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causing the Secured Parties to credit against the Secured Obligations,
including the expenses of the sale and the cost of any enforcement
proceeding hereunder, the amount of the bid made therefor to the extent
necessary to satisfy such bid.
(g) In the event that the Grantor or any Person claiming by,
through or under the Grantor shall transfer or fail to surrender
possession of the Trust Property after any sale thereof, then, to the
extent permitted by law, the Grantor or such Person shall be deemed a
tenant at sufferance of the purchaser at such sale, subject to eviction
by means of summary process for possession of land, or subject to any
other right or remedy available hereunder or under applicable law.
(h) Upon any sale, it shall not be necessary for the Person
conducting such sale to have any Trust Property being sold present or
constructively in its possession.
(i) In the event that a foreclosure hereunder shall be
commenced by the Beneficiary or the Trustee, the Beneficiary may at any
time before the sale abandon the sale, and may institute suit for the
collection of the Secured Obligations or for the foreclosure of this
Deed of Trust; or in the event that the Beneficiary or the Trustee
should institute a suit for collection of the Secured Obligations or
the foreclosure of this Deed of Trust, the Beneficiary may at any time
before the entry of final judgment in said suit dismiss the same and
sell the Trust Property in accordance with the provisions of this Deed
of Trust.
SECTION 5.06. Proceeds. Except as otherwise provided herein and in the
Indenture or required under applicable law, the proceeds of any sale of the
Trust Property hereunder, whether made pursuant to the power of sale hereunder,
any judicial proceeding or any judgment or decree of foreclosure or sale or
otherwise shall be applied and paid as follows:
(a) First: to the payment of all expenses of such sale, including
compensation the Beneficiary or the Trustee or such other Person conducting such
sale, the cost of title searches, foreclosure certificates, title commitments or
abstracts, and attorneys' fees and expenses incurred by such Person, together
with interest on any such expenses paid by such Person at the Post-Default Rate
from the date paid by such Person through the date repaid to such Person;
(b) Second: to the payment of the expenses and other amounts payable
under Sections 4.02 and 5.10; and
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(c) Third: to the Beneficiary for deposit in the Cash Collateral
Account, to be held, applied and disbursed in accordance with Section 6.10 of
the Indenture.
SECTION 5.07. Assignment of Leases. (a) Subject to Section 5.07(d)
below, the assignments of the Leases and the Rents under Granting Clauses VI and
VII are and shall be present, absolute and irrevocable assignments by the
Grantor to the Trustee and, subject to the license to the Grantor under Section
5.07(b), the Beneficiary or a Receiver appointed pursuant to Section 5.02(a)(iv)
(as the case may be as the Person exercising the rights under this Section)
shall have the absolute, immediate and continuing right to collect and receive
all Rents now or hereafter, including during any period of redemption, accruing
with respect to the Property. At the request of the Beneficiary or such
Receiver, the Grantor shall promptly execute, acknowledge, deliver, record,
register and file any additional general assignment of the Leases or specific
assignment of any Lease which the Beneficiary or such Receiver may reasonably
require from time to time (all in form and substance satisfactory to the
Beneficiary or such Receiver) to effectuate, complete, perfect, continue or
preserve the assignments of the Leases and the Rents under Granting Clauses VI
and VII.
(b) As long as no Event of Default is continuing, the Grantor shall
have the right under a license granted hereby, subject to Section 5.05(c), to
collect all Rents upon, but not prior to thirty (30) days before, the due date
thereof.
(c) If an Event of Default is continuing, the Beneficiary or a
Receiver appointed pursuant to Section 5.02(a)(iv) (as the case may be as the
Person exercising the rights under this Section) shall have the right to
terminate the license granted under Section 5.07(b) by notice to the Grantor and
to exercise the rights and remedies provided under Section 5.07(a), under
Sections 5.02(a)(v) and (vi) or under applicable law. If an Event of Default is
continuing, upon demand by the Person exercising the rights under this Section,
the Grantor shall promptly pay to such Person all Security Deposits under the
Leases and all Rents allocable to any period after the occurrence of such Event
of Default. Subject to Sections 5.02(a)(v) and (vi) and any applicable
requirement of law, any Rents received hereunder by the Person exercising the
rights under this Section shall be promptly paid to the Beneficiary, and any
Rents received hereunder by the Beneficiary shall be deposited in the Cash
Collateral Account, to be held, applied and disbursed as provided in the Pledge
and Security Agreement and the Indenture, provided that, subject to Sections
5.02(a)(v) and (vi) and any applicable requirement of law, any Security Deposits
actually received by such Person shall be promptly paid to the Beneficiary, and
any Security Deposits actually received by the Beneficiary shall be held,
applied and disbursed as provided in the applicable Leases and applicable law.
(d) Nothing herein shall be construed to be an assumption by the
Person exercising the rights under this Section, or to otherwise make such
Person liable for
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the performance, of any of the obligations of the Grantor under the Leases,
provided that such Person shall be accountable as provided in Section 5.07(c)
for any Rents or Security Deposits actually received by such Person.
SECTION 5.08. Dealing with the Trust Property. Subject to Section 7.02,
the Beneficiary shall have the right to release any portion of the Trust
Property to or at the request of the Grantor, for such consideration as the
Beneficiary may require without, as to the remainder of the Trust Property, in
any way impairing or affecting the Lien or priority of this Deed of Trust, or
improving the position of any subordinate lienholder with respect thereto,
except to the extent that the Secured Obligations shall have been reduced by any
actual monetary consideration received for such release and applied to the
Secured Obligations, and may accept by assignment, pledge or otherwise any other
property in place thereof as the Beneficiary may require without being
accountable therefor to any other lienholder.
SECTION 5.09. Right of Entry. The Beneficiary or the Trustee (as the
case may be as the Person exercising the rights under this Section) and the
representatives of such Person shall have the right, (i) without prior notice if
an Event of Default is continuing or such entry is necessary in the reasonable
opinion of the Beneficiary to preserve the Beneficiary's rights under this Deed
of Trust or with respect to the Trust Property, or (ii) after reasonable notice
and subject to reasonable rules and procedures for safety and security
established by the Grantor if no Event of Default is continuing, to enter upon
the Property at all reasonable times, as often as such Person may reasonably
require, to inspect the Trust Property or, subject to the provisions hereof, to
exercise any right, power or remedy of such Person hereunder, provided that any
Person so entering the Property shall not unreasonably interfere with the
ordinary conduct of Grantor's business, and provided further that no such entry
on the Property for the purpose of performing obligations under Section 5.10 or
any other purpose shall be construed to be (x) possession of the Property by
such Person or to constitute such Person as a Beneficiary, trustee or mortgagee
in possession, unless such Person exercises its right to take possession of the
Property under Section 5.02(a)(v), or (y) a cure of any Default or waiver of any
Default or Secured Obligation.
SECTION 5.10. Right to Perform Obligations. If the Grantor fails to pay
or perform any obligation of the Grantor hereunder or under any other Security
Document, the Beneficiary or the Trustee and the representatives of such Person
shall have the right, (i) without notice if an Event of Default is continuing or
such payment or performance is necessary in the reasonable opinion of the
Beneficiary to preserve the Beneficiary's rights under this Deed of Trust or
with respect to the Trust Property, or (ii) after reasonable notice if no Event
of Default is continuing, to pay or perform such obligation, provided that no
such payment or performance shall be construed to be a cure of any Default or
waiver of any Default or Secured Obligation. If, pursuant to the terms of this
Deed of Trust, the Beneficiary shall make any
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payment on behalf of the Grantor, the amount so paid shall be reimbursable by
the Grantor immediately upon such payment together with interest accrued thereon
at the Post-Default Rate to the date of reimbursement. The obligation of the
Grantor to reimburse the Beneficiary for such payment, as well as interest
accrued thereon, shall be part of the Secured Obligations and shall be secured
by this Deed of Trust.
SECTION 5.11. Concerning the Beneficiary. (a) The provisions of Article
7 of the Indenture with respect to the Indenture Trustee shall inure to the
benefit of the Beneficiary in respect of this Deed of Trust as if incorporated
herein and shall be binding upon the parties to the Indenture and the holders of
the Notes in such respect. In furtherance and not in derogation of the rights,
privileges and immunities of the Beneficiary therein set forth:
(i) The Beneficiary is authorized to take all such action as
is provided to be taken by it as Beneficiary hereunder and all other
action reasonably incidental thereto. As to any matters not expressly
provided for herein (including the timing and methods of realization
upon the Trust Property), the Beneficiary shall act or refrain from
acting in accordance with written instructions from the Indenture
Trustee or the holders of a majority in principal amount of the Notes
or, in the absence of such instructions, in accordance with its
discretion.
(ii) The Beneficiary shall not be responsible for the
existence, genuineness or value of any of the Trust Property or for the
validity, perfection, priority or enforceability of the Lien of this
Deed of Trust on any of the Trust Property, whether impaired by
operation of law or by reason of any action or omission to act on its
part hereunder. The Beneficiary shall have no duty to ascertain or
inquire as to the performance or observance of any of the terms of this
Deed of Trust by the Grantor.
(b) At any time or times, in order to comply with any legal
requirement in any jurisdiction, the Beneficiary may appoint another bank or
trust company or one or more other persons, either to act as co-agent or
co-agents, jointly with the Beneficiary, or to act, in accordance with the
provisions of this Deed of Trust, as separate agent or agents on behalf of the
Secured Parties with such power and authority as may be necessary for the
effectual operation of the provisions hereof and may be specified in the
instrument of appointment (which may, in the discretion of the Beneficiary,
include provisions for the protection of such co-agent or separate agent similar
to the provisions of Section 5.11).
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ARTICLE 6
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 6.01. Security Agreement. To the extent that the Trust Property
includes personal property or items of personal property which are or are to
become fixtures under applicable law, this Deed of Trust shall also be construed
as a Security Agreement under the UCC; and, if an Event of Default is
continuing, the Beneficiary shall be entitled with respect to such personal
property to all remedies available under the UCC and all other remedies
available under applicable law. Without limiting the foregoing, if an Event of
Default is continuing, any personal property may, at the Beneficiary's option,
(i) be sold hereunder, (ii) be sold pursuant to the UCC or (iii) be dealt with
by the Beneficiary in any other manner permitted under applicable law. The
Trustee may require the Grantor to assemble the personal property and make it
available to the Beneficiary at a place to be designated by the Beneficiary. If
an Event of Default is continuing, the Beneficiary shall be the attorney-in-fact
of the Grantor with respect to any and all matters pertaining to the personal
property with full power and authority to give instructions with respect to the
collection and remittance of payments, to endorse checks, to enforce the rights
and remedies of the Grantor and to execute on behalf of the Grantor and in
Grantor's name any instruction, agreement or other writing required therefor.
The Grantor acknowledges and agrees that a disposition of the personal property
in accordance with the Beneficiary's rights and remedies in respect to the
Property as heretofore provided is a commercially reasonable disposition
thereof.
SECTION 6.02. Fixture Filing. To the extent that the Trust Property
includes items of personal property which are or are to become fixtures under
applicable law, and to the extent permitted under applicable law, the filing of
this Deed of Trust in the real estate records of the county in which such Trust
Property is located shall also operate from the time of filing as a fixture
filing with respect to such Trust Property, and the following information is
applicable for the purpose of such fixture filing, to wit:
(a) Name and Address of the debtor:
Century Aluminum of West Virginia, Inc.
X.X. Xxx 00
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
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(b) Name and Address of the secured party:
Wilmington Trust Company, as Collateral Agent
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
(c) This document covers goods or items of personal property
which are or are to become fixtures upon the Land and Improvements.
(d) The name of the record owners of the Land and Improvements
on which such fixtures are or are to be located is Century Aluminum of
West Virginia, Inc.
SECTION 6.03. Further Assurances; General Covenants. The Grantor
covenants as follows: (a) The Grantor will execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices as may be necessary, as are required by applicable law, or as the
Beneficiary may reasonably request, in order to perfect and preserve the Lien
granted or purported to be granted by this Deed of Trust.
(b) To the extent permitted by applicable law, the Grantor authorizes
the Beneficiary to execute and file such financing statements or continuation
statements without the Grantor's signature appearing thereon. The Beneficiary
will provide a copy of any such financing statement to the Grantor upon its
filing. The Grantor agrees that a carbon, photographic, photostatic or other
reproduction of this Deed of Trust or of a financing statement is sufficient as
a financing statement. The Grantor constitutes the Beneficiary its
attorney-in-fact to execute and file all filings required or so requested for
the foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; and such power, being coupled with an interest, shall be irrevocable
until all the Liens terminate pursuant to Section 7.02. The Grantor will pay the
costs of, or incidental to, any recording or filing of any financing or
continuation statements or other documents recorded or filed pursuant hereto.
(c) The Grantor will not (i) change its name or corporate structure
(including its jurisdiction of organization), (ii) change its location
(determined as provided in Revised UCC Section 9-307) or (iii) become bound, as
provided in Revised UCC Section 9-203(d) or otherwise, by a security agreement
entered into by another Person, unless it shall have given the Beneficiary prior
notice thereof and delivered an Opinion of Counsel with respect thereto in
accordance with Section 6.03(e).
(d) Before the applicable UCC Revision Date, the Grantor will not
change the location of its chief executive office or chief place of business or
the locations
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where it keeps or holds any Trust Property, unless it shall have given the
Beneficiary prior notice thereof and delivered an Opinion of Counsel with
respect thereto in accordance with Section 6.03(e). It will not in any event
change the location of any Trust Property owned by it if such change would cause
the Lien on such Trust Property to lapse or cease to be perfected.
(e) At least 30 days before it takes any action contemplated by
Section 6.03(c) or 6.03(d), the Grantor will, at its expense, cause to be
delivered to the Beneficiary an Opinion of Counsel, in form and substance
satisfactory to the Beneficiary, to the effect that (i) all financing statements
and amendments or supplements thereto, continuation statements and other
documents required to be filed or recorded in order to perfect and protect the
Liens against all creditors of and purchasers from the Grantor after it takes
such action (except any continuation statements specified in such Opinion of
Counsel that are to be filed more than six months after the date thereof) have
been filed or recorded in each office necessary for such purpose, (ii) all fees
and taxes, if any, payable in connection with such filings or recordations have
been paid in full and (iii) such action will not materially adversely impair the
perfection or priority of the Lien on any Trust Property after it takes such
action or the accuracy of the Grantor's representations and warranties herein
relating to such Trust Property.
(f) The Grantor covenants that it will (i) on or prior to the date
hereof, in the case of Equipment now owned by it that is part of the Collateral
and which constitute goods in which a security interest is perfected by a
notation on the certificate of title or similar evidence of the ownership of
such goods ("PLEDGED EQUIPMENT"), and (ii) within 10 days after it acquires any
other Pledged Equipment, deliver to the Beneficiary any and all certificates of
title, applications for title or similar evidence of ownership of such Equipment
and will cause the Beneficiary to be named as lienholder on any such certificate
of title or other evidence of ownership. The Grantor will promptly inform the
Beneficiary of any additions to or deletions from its Pledged Equipment and will
not permit any of its Pledged Equipment to become a fixture to real estate or an
accession to any personal property that is not, in either case, included in the
Trust Property.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Trustee. (a) The Grantor hereby irrevocably appoints the
Trustee to act in that capacity hereunder and the Trustee hereby accepts such
appointment. The Grantor hereby irrevocably ratifies and confirms all acts which
the Trustee shall lawfully take in accordance with the provisions hereof.
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(b) The Trustee may, at its option, resign as trustee hereunder by
notice given to the Beneficiary, and such resignation shall be effective on the
earlier to occur of (i) the date which is thirty (30) days after the date on
which the Trustee gives such notice to the Beneficiary or (ii) the date on which
a successor trustee is appointed by the Beneficiary and accepts such
appointment.
(c) The Beneficiary may, at its option, with or without cause or
notice, remove the Trustee, appoint a successor trustee or appoint an additional
trustee or trustees (including a separate trustee for each jurisdiction in which
the Trust Property is located) hereunder by an instrument in writing executed
and acknowledged by the Beneficiary in compliance with the laws of the State of
West Virginia and accepted by such successor or additional trustee and recorded,
registered or filed in the real estate records of the jurisdiction in which the
Trust Property affected by such instrument is located; and, thereupon, without
further act, deed or conveyance, such substitute or additional trustee shall be
fully vested with all estate, right, title and interest of its predecessor or
co-trustee in, to, under or derived from the Trust Property and all rights,
powers, privileges and obligations of such predecessor or co-trustee, with the
same effect as if such successor or additional trustee had originally been named
as trustee or co-trustee hereunder. The execution, acknowledgment and recording,
registration or filing of such an instrument shall be conclusive evidence
against the Grantor and all other Persons of the proper removal of the Trustee
and substitution or addition of the successor or additional trustee; and, if the
Beneficiary or such successor or additional trustee is a corporation, the
execution and acknowledgment by an officer of such corporation shall be
conclusive evidence against all other Persons of the due authorization,
execution and delivery thereof by such corporation.
(d) Notwithstanding anything herein to the contrary, the Trustee shall
not exercise or waive the exercise of any of its rights, powers or remedies
hereunder or otherwise act or refrain from acting hereunder unless directed to
do so by the Beneficiary, and the Trustee shall exercise or waive the exercise
of any of its rights, powers or remedies hereunder and otherwise act or refrain
from acting when and in the manner directed by the Beneficiary, provided that
the Trustee (i) shall not be required to follow any direction of the Beneficiary
if the Trustee has been advised by counsel that such action would violate
applicable law, (ii) shall not be required to expend or risk its own funds or
otherwise incur any financial liability in connection with such action if it has
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
(iii) shall be entitled to exercise its rights under subsection (e) of this
Section without such direction by the Beneficiary.
(e) The Trustee shall be entitled to receive, and the Grantor shall
pay, reasonable and customary compensation to the Trustee for its services
rendered hereunder after any Default and reimbursement to the Trustee for its
expenses
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(including reasonable attorneys' fees and expenses) in connection herewith or
the exercise of any right, power or remedy hereunder.
(f) The Trustee shall not be liable with respect to any act taken or
omitted by it in good faith in accordance with any direction of the Beneficiary.
Except for willful misconduct or gross negligence, the Trustee shall not be
liable (i) in acting upon any direction, demand, request, notice, statement or
other document reasonably believed by it in good faith to be genuine and
delivered by the Person empowered to do so, (ii) for any error in judgment or
mistake of fact or law in good faith, or (iii) for any action taken or omitted
by it in accordance with the provisions of this Deed of Trust. The Trustee shall
not be responsible to see to the recording, registration or filing of this Deed
of Trust or any financing statement relating hereto in any jurisdiction or for
the payment of any fees, charges or taxes in connection therewith. No co-trustee
hereunder shall be liable for any act or omission of any other co-trustee.
(g) All moneys received by the Trustee hereunder shall be held by the
Trustee in trust for the purposes for which such moneys were received; and,
except as provided herein or under mandatory provisions of applicable law, the
Trustee need not segregate such moneys from any other moneys and shall have no
liability to pay interest thereon, except such interest as it may actually earn
thereon.
(h) The Trustee is hereby authorized to act by agent or attorney in the
execution of this trust, and it shall not be necessary for the Trustee to be
present in person at any foreclosure sale.
SECTION 7.02. Release of Trust Property. (a) This Deed of
Trust shall cease, terminate and thereafter be of no further force or effect
(except as provided in Section 4.02 hereof) in the event all of the Secured
Obligations shall have been paid in full and the Grantor shall have performed
and observed all of the covenants, obligations and conditions to be performed by
the Grantor pursuant to the Credit Documents. Upon such termination and at the
Grantor's request and expense, the Beneficiary shall execute and deliver to the
Grantor an instrument, in proper form for recording, without warranty, releasing
the Lien of this Deed of Trust on the Trust Property.
(b) Any termination or release required or permitted under this Section
7.02 or under the Indenture shall be at the Grantor's request and expense and
either in the statutory form or in a form reasonably satisfactory to the
Beneficiary.
SECTION 7.03. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
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(i) if to the Grantor:
Century Aluminum of West Virginia, Inc.
X.X. Xxx 00
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
(ii) if to the Beneficiary:
Wilmington Trust Company, as Collateral Agent
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Department
(iii) if to the Trustee:
Xxxxxxx X. Xxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
Notwithstanding any provision herein to the contrary, a copy of any notice of
trustee's sale under this Deed of Trust shall be served on the Grantor by
certified mail, return receipt requested, directed to the Grantor at the above
address of the Grantor or such other address given the Beneficiary in writing by
the Grantor subsequent to the execution and delivery of this Deed of Trust. A
copy of any notice of trustee's sale under this Deed of Trust shall be served by
certified mail, return receipt requested, at least twenty (20) days prior to the
sale, upon any subordinate lienholder who has previously notified the
Beneficiary by certified mail of the existence of the subordinate lien. Any
notice of subordinate lien pursuant to West Virginia Code Section 38-1-4 shall
be mailed to the above mailing address of the Beneficiary. Nothing in this
Section 7.03 shall be construed to permit the Grantor to grant a subordinate
lien upon the Trust Property contrary to the provisions of the Indenture.
SECTION 7.04. Amendments in Writing. No provision of this Deed of Trust
shall be modified, waived or terminated, and no consent to any departure by the
Grantor from any provision of this Deed of Trust shall be effective, unless the
same shall be by an instrument in writing, signed by the Grantor and the
Beneficiary in compliance with all the terms and provisions of the Indenture.
Any such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
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SECTION 7.05. Severability. All rights, powers and remedies provided in
this Deed of Trust may be exercised only to the extent that the exercise thereof
does not violate applicable law, and all the provisions of this Deed of Trust
are intended to be subject to all mandatory provisions of applicable law and to
be limited to the extent necessary so that they will not render this Deed of
Trust illegal, invalid, unenforceable or not entitled to be recorded, registered
or filed under applicable law. If any provision of this Deed of Trust or the
application thereof to any Person or circumstance shall, to any extent, be
illegal, invalid or unenforceable, or cause this Deed of Trust not to be
entitled to be recorded, registered or filed, the remaining provisions of this
Deed of Trust or the application of such provision to other Persons or
circumstances shall not be affected thereby, and each provision of this Deed of
Trust shall be valid and be enforced to the fullest extent permitted under
applicable law.
SECTION 7.06. Binding Effect. (a) The provisions of this Deed of Trust
shall be binding upon and inure to the benefit of each of the parties hereto and
their respective successors and assigns; and all references herein to the
"Grantor" and the "Beneficiary" shall include the respective successors and
assigns of such parties, and all references to the "Trustee" shall include any
successor or additional Trustees appointed under Section 7.01.
(b) To the fullest extent permitted under applicable law, the
provisions of this Deed of Trust binding upon the Grantor shall be deemed to be
covenants which run with the land.
(c) Nothing in this Section shall be construed to permit the Grantor
to Transfer or xxxxx x Xxxx upon the Trust Property contrary to the provisions
of the Indenture.
SECTION 7.07. GOVERNING LAW. THIS DEED OF TRUST SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE LAND AND
IMPROVEMENTS ARE LOCATED, EXCEPT AS OTHERWISE REQUIRED BY MANDATORY PROVISIONS
OF LAW AND EXCEPT TO THE EXTENT THAT REMEDIES PROVIDED BY THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE WHERE THE LAND AND IMPROVEMENTS ARE LOCATED
ARE GOVERNED BY THE LAWS OF SUCH JURISDICTION.
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IN WITNESS WHEREOF, the Grantor has executed and delivered this Deed of
Trust as of the day first set forth above.
Grantor:
[corporate seal] CENTURY ALUMINUM OF WEST
VIRGINIA, INC., a Delaware
Corporation
By:
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice Pres. & Treasurer
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00
XXXXX XX XXX XXXX,
XXXXXX XX XXX XXXX, to-wit
The foregoing instrument was acknowledged before me this 30th day of
March, 2001, by Xxxxxx X. Xxxxxxxxx, the Vice President and Treasurer of CENTURY
ALUMINUM OF WEST VIRGINIA, INC., a Delaware corporation, on behalf of said
corporation.
My commission expires __________________________
[SEAL] _______________________
Notary Public
This instrument was prepared by Xxxxx X. XxXxxxxx, Esq., Xxxxx Xxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 in consultation with counsel
in West Virginia.
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SCHEDULE I
Names and Addresses of Secured Parties
Beneficiary:
Wilmington Trust Company, as Collateral Agent
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Indenture Trustee:
Wilmington Trust Company, as Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Initial Noteholders:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fleet Securities, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
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