EXHIBIT 10.3
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Xxxxxx, Xxx, Xxxxx & Xxxxxxxxx, L.L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Gates Grainger, Esq.
APN: 123-23-000-001, 123-14-000-002, Ptn. 123-23-000-003 & 123-26-101-001
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Space above this line for Recorder's Use
DEED OF TRUST, ASSIGNMENT OF RENTS
AND FIXTURE FILING
[ ] If this box is checked, this document is a
CONSTRUCTION TRUST DEED securing a construction loan.
[NOTICE: THE OBLIGATIONS SECURED HEREBY PROVIDE THE PERIODIC
INCREASES AND/OR DECREASES IN THE APPLICABLE INTEREST RATE.
NOTICE: THE OBLIGATIONS SECURED HEREBY INCLUDE REVOLVING CREDIT
OBLIGATIONS WHICH PERMIT BORROWING, REPAYMENT AND REBORROWING.]
This Deed of Trust is made as of January 12, 2000, by LAS VEGAS
INDUSTRIAL PARK, LLC, a Nevada limited liability company, as trustor
("Trustor"), to NATIONAL TITLE CO., as trustee ("Trustee"), for the benefit of
LAS VEGAS MOTOR SPEEDWAY, LLC, a Nevada limited liability company, as
beneficiary ("Beneficiary").
1. GRANT IN TRUST.
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1.1 The Property. For the purpose of securing payment and
performance of the Secured Obligations defined in Section 2 below, Trustor
hereby irrevocably and unconditionally grants, conveys, transfers and assigns to
Trustee, in trust for the benefit of Beneficiary, with power of sale and right
of entry and possession, all estate, right, title and interest which Trustor now
has or may later acquire in the following property (collectively, the
"Property"):
(a) The real property located in the County of Xxxxx, State of
Nevada, as described in EXHIBIT A hereto;
(b) All buildings, structures, improvements, fixtures and
appurtenances now or hereafter placed on such real property, and all
apparatus and equipment now or hereafter attached in any manner to the
real property or any
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building on the real property, including all pumping plants, engines,
pipes, ditches and flumes, and also all gas, electric, cooking, heating,
cooling, air conditioning, lighting, refrigeration and plumbing fixtures
and equipment, all of which shall be considered to the fullest extent of
the law to be real property for purposes of this Deed of Trust;
(c) All easements and rights of way appurtenant to such real
property; all crops (growing or to be grown on such real property); all
standing timber upon such real property; all development rights or credits
and air rights; all water and water rights (whether riparian,
appropriative, or otherwise, and whether or not appurtenant to such real
property) and shares of stock pertaining to such water or water rights,
ownership of which affect such real property; all minerals, oil, gas, and
other hydrocarbon substances and rights thereto in, on, under, or upon
such real property;
(d) All existing and future leases, subleases, subtenancies,
licenses, occupancy agreements and concessions relating to the use and
enjoyment of all or any part of such real property, and any and all
guaranties and other agreements relating to or made in connection with any
of the foregoing;
(e) All proceeds, including all claims to and demands for
them, of the voluntary or involuntary conversion of any of the real
property, buildings or the other property described above into cash or
liquidated claims, including proceeds of all present and future fire,
hazard or casualty insurance policies and all condemnation awards or
payments now or later to be made by any public body or decree by any court
of competent jurisdiction for any taking or in connection with any
condemnation or eminent domain proceeding, and all causes of action and
their proceeds for any breach of warranty, misrepresentation, damage or
injury to, or defect in, the real property, buildings or the other
property described above or any part of them; and
(f) All proceeds of, additions and accretions to,
substitutions and replacements for, and changes in any of the property
described above.
1.2 Fixture Filing. This Deed of Trust constitutes a financing
statement filed as a fixture filing under NRS 104.9402(6) of the Nevada Uniform
Commercial Code covering any Property which now is or later may become a fixture
attached to the real property described in Paragraph 1.1(a) or any building
located thereon.
2. THE SECURED OBLIGATIONS.
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2.1 Purpose of Securing. Trustor makes the grant, conveyance,
transfer and assignment set forth in Section 1 for the purpose of securing the
following obligations (the "Secured Obligations") in any order of priority that
Beneficiary may choose:
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(a) Payment of all obligations of Las Vegas Industrial Park,
LLC ("Obligor") to Beneficiary arising under the instrument(s) or
agreement(s) described below (the "Debt Instrument"):
[X] a promissory note dated of even date, payable by Xxxxxxx as
maker in the stated principal amount of Thirteen Million Three
Hundred Thousand Dollars ($13,300,000.00) to the order of
Beneficiary.
[ ] a certain _____________________________ Agreement dated as
of ______________, 2000, between Obligor and Beneficiary which
provides for extensions of credit in a principal amount not
exceeding _________________ Dollars ($_________).
[ ] a certain ________________________________ Guaranty dated
______________, 2000, in the principal amount of
_____________________ Dollars ($__________) given by Obligor
to Beneficiary in support of the obligations of
__________________ to Beneficiary.
[ ] Describe ______________________________________________
_____________________________________________________.
This Deed of Trust also secures payment of all obligations of
Obligor under the Debt Instrument which arise after the Debt
Instrument is extended, renewed, modified or amended pursuant to any
written agreement between Obligor and Beneficiary, and all
obligations of Obligor under any successor agreement or instrument
which restates and supersedes the Debt Instrument in its entirety.
(b) Payment and performance of all obligations of
Trustor under this Deed of Trust; and
(c) Payment and performance of all future advances and
other obligations that Trustor (or any successor in interest to
Trustor) or Obligor (if different from Trustor) may agree to pay
and/or perform (whether as principal, surety or guarantor) to or for
the benefit of Beneficiary, when a writing signed by Trustor (or any
successor in interest to Trustor) evidences said parties' agreement
that such advance or obligation be secured by this Deed of Trust.
This Deed of Trust does not secure any obligation which expressly states that it
is unsecured, whether contained in the foregoing Debt Instrument or in any other
document, agreement or instrument.
2.2 Terms of Secured Obligations. All persons who may have or
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acquire an interest in all or any part of the Property will be considered to
have notice of, and will be bound by, the terms of the Debt Instrument described
in Paragraph 2.1(a) and each other agreement or instrument made or entered into
in connection with each of the Secured Obligations. The Debt Instrument, among
other things, provides for the following:
[ ] a revolving line of credit to Obligor pursuant to which
Obligor may borrow, repay extensions of credit, and re-borrow
amounts which have been repaid. The unpaid balance of the
revolving line of credit may at certain times be zero. A zero
balance does not affect Beneficiary's agreement to make
further extensions of credit under the Debt Instrument.
Beneficiary's interest under this Deed of Trust will remain in
full force and effect notwithstanding a zero balance under the
revolving line of credit.
[X] an interest rate which may vary from time to time on one or
more of the obligations arising under the Debt Instrument.
3. ASSIGNMENT OF RENTS.
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3.1 Assignment. Trustor hereby irrevocably, absolutely, presently
and unconditionally assigns to Beneficiary all rents, royalties, issues,
profits, revenue, income and proceeds of the Property, whether now due, past due
or to become due, including all prepaid rents and security deposits
(collectively, the "Rents"), and confers upon Beneficiary the right to collect
such Rents with or without taking possession of the Property. In the event that
anyone establishes and exercises any right to develop, bore for or mine for any
water, gas, oil or mineral on or under the surface of the Property, any sums
that may become due and payable to Trustor as bonus or royalty payments, and any
damages or other compensation payable to Trustor in connection with the exercise
of any such rights, shall also be considered Rents assigned under this
Paragraph. This is an absolute assignment, not an assignment for security only.
3.2 Grant of License. Notwithstanding the provisions of Paragraph
3.1, Beneficiary hereby confers upon Trustor a license ("License") to collect
and retain the Rents as they become due and payable, so long as no Event of
Default, as defined in Paragraph 5.2, shall exist and be continuing. If an Event
of Default has occurred and is continuing, Beneficiary shall have the right,
which it may choose to exercise in its sole discretion, to terminate this
License without notice to or demand upon Trustor, and without regard to the
adequacy of the security for the Secured Obligations.
4. RIGHTS AND DUTIES OF THE PARTIES
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4.1 Representations and Warranties. Trustor represents and warrants
that Trustor lawfully possesses and holds fee simple title to all of the
Property, unless Trustor's present interest in the Property is described in
EXHIBIT A as a leasehold interest, in which case Trustor lawfully possesses and
holds a leasehold interest in the Property as stated
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in EXHIBIT A.
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4.2 Taxes, Assessments, Liens and Encumbrances. Trustor shall pay
prior to delinquency all taxes, levies, charges and assessments, including
assessments on appurtenant water stock, imposed by any public or quasi-public
authority or utility company which are (or if not paid, may become) a lien on
all or part of the Property or any interest in it, or which may cause any
decrease in the value of the Property or any part of it. Trustor shall
immediately discharge any lien on the Property which Beneficiary has not
consented to in writing, and shall also pay when due each obligation secured by
or reducible to a lien, charge or encumbrance which now or hereafter encumbers
or appears to encumber all or part of the Property, whether the lien, charge or
encumbrance is or would be senior or subordinate to this Deed of Trust.
4.3 Damages and Insurance and Condemnation Proceeds.
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(a) Trustor hereby absolutely and irrevocably assigns to
Beneficiary, and authorizes the payor to pay to Beneficiary, the following
claims, causes of action, awards, payments and rights to payment
(collectively, the "Claims"):
(i) all awards of damages and all other compensation
payable directly or indirectly because of a condemnation, proposed
condemnation or taking for public or private use which affects all
or part of the Property or any interest in it;
(ii) all other awards, claims and causes of action,
arising out of any breach of warranty or misrepresentation affecting
all or any part of the Property, or for damage or injury to, or
defect in, or decrease in value of all or part of the Property or
any interest in it;
(iii) all proceeds of any insurance policies payable
because of loss sustained to all or part of the Property; and
(iv) all interest which may accrue on any of the
foregoing.
(b) Trustor shall immediately notify Beneficiary in writing
if:
(i) any damage occurs or any injury or loss is sustained
to all or part of the Property, or any action or proceeding relating
to any such damage, injury or loss is commenced; or
(ii) any offer is made, or any action or proceeding is
commenced, which relates to any actual or proposed condemnation or
taking of all or part of the Property.
If Beneficiary chooses to do so, it may in its own name appear in or
prosecute any
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action or proceeding to enforce any cause of action based on breach of
warranty or misrepresentation, or for damage or injury to, defect in, or
decrease in value of all or part of the Property, and it may make any
compromise or settlement of the action or proceeding. Beneficiary, if it
so chooses, may participate in any action or proceeding relating to
condemnation or taking of all or part of the Property, and may join
Trustor in adjusting any loss covered by insurance.
(c) All proceeds of the Claims assigned to Beneficiary under
this Paragraph shall be paid to Beneficiary. In each instance, Beneficiary
shall apply those proceeds first toward reimbursement of all of
Beneficiary's costs and expenses of recovering the proceeds, including
attorneys' fees. Trustor further authorizes Beneficiary, at Beneficiary's
option and in Beneficiary's sole discretion, and regardless of whether
there is any impairment of the Property, (i) to apply the balance of such
proceeds, or any portion of them, to pay or prepay some or all of the
Secured Obligations in such order or proportion as Beneficiary may
determine, or (ii) to hold the balance of such proceeds, or any portion of
them, in a non-interest- bearing account to be used for the cost of
reconstruction, repair or alteration of the Property, or (iii) to release
the balance of such proceeds, or any portion of them, to Trustor. If any
proceeds are released to Trustor, neither Beneficiary nor Trustee shall be
obligated to see to, approve or supervise the proper application of such
proceeds. If the proceeds are held by Beneficiary to be used to reimburse
Trustor for the costs of restoration and repair of the Property, the
Property shall be restored to the equivalent of its original condition, or
such other condition as Beneficiary may approve in writing. Beneficiary
may, at Beneficiary's option, condition disbursement of the proceeds on
Beneficiary's approval of such plans and specifications prepared by an
architect satisfactory to Beneficiary, contractor's cost estimates,
architect's certificates, waivers of liens, sworn statements of mechanics
and materialmen, and such other evidence of costs, percentage of
completion of construction, application of payments, and satisfaction of
liens as Beneficiary may reasonably require.
4.4 Insurance. Trustor shall provide and maintain in force at all
times all risk property damage insurance on the Property and such other type of
insurance on the Property as may be required by Beneficiary in its reasonable
judgment. At Beneficiary's request, Trustor shall provide Beneficiary with a
counterpart original of any policy, together with a certificate of insurance
setting forth the coverage, the limits of liability, the carrier, the policy
number and the expiration date. Each such policy of insurance shall be in an
amount, for a term, and in form and content satisfactory to Beneficiary, and
shall be written only by companies approved by Beneficiary. In addition, each
policy of hazard insurance shall include a Form 438BFU or equivalent loss
payable endorsement in favor of Beneficiary.
4.5 Maintenance and Preservation of Property.
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(a) Trustor shall keep the Property in good condition and
repair and shall not commit or allow waste of the Property. Trustor shall
not remove or
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demolish the Property or any part of it, or alter, restore or add to the
Property, or initiate or allow any change in any zoning or other land use
classification which affects the Property or any part of it, except with
Beneficiary's express prior written consent in each instance.
(b) If all or part of the Property becomes damaged or
destroyed, Trustor shall promptly and completely repair and/or restore the
Property in a good and workmanlike manner in accordance with sound
building practices, regardless of whether or not Beneficiary agrees to
disburse insurance proceeds or other sums to pay costs of the work of
repair or reconstruction under Paragraph 4.3.
(c) Trustor shall not commit or allow any act upon or use of
the Property which would violate any applicable law or order of any
governmental authority, whether now existing or later to be enacted and
whether foreseen or unforeseen, or any public or private covenant,
condition, restriction or equitable servitude affecting the Property.
Trustor shall not bring or keep any article on the Property or cause or
allow any condition to exist on it, if that could invalidate or would be
prohibited by any insurance coverage required to be maintained by Trustor
on the Property or any part of it under this Deed of Trust.
(d) If Trustor's interest in the Property is a leasehold
interest, Trustor shall observe and perform all obligations of Trustor
under any lease or leases and shall refrain from taking any actions
prohibited by any lease or leases. Trustor shall preserve and protect the
leasehold estate and its value.
(e) If the Property is agricultural, Trustor shall farm the
Property in a good and husbandlike manner. Trustor shall keep all trees,
vines and crops on the Property properly cultivated, irrigated,
fertilized, sprayed and fumigated, and shall replace all dead or
unproductive trees or vines with new ones. Trustor shall prepare for
harvest, harvest, remove and sell any crops growing on the Property.
Trustor shall keep all buildings, fences, ditches, canals, xxxxx and other
farming improvements on the Property in first class condition, order and
repair.
(f) Trustor shall perform all other acts which from the
character or use of the Property may be reasonably necessary to maintain
and preserve its value.
4.6 Releases, Extensions, Modifications and Additional Security.
Without affecting the personal liability of any person, including Trustor (or
Obligor, if different from Trustor), for the payment of the Secured Obligations
or the lien of this Deed of Trust on the remainder of the Property for the
unpaid amount of the Secured Obligations, Beneficiary and Trustee are
respectively empowered as follows:
(a) Beneficiary may from time to time and without notice:
(i) release any person liable for payment of any
Secured
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Obligation;
(ii) extend the time for payment, or otherwise alter
the terms of payment, of any Secured Obligation;
(iii) accept additional real or personal property of any
kind as security for any Secured Obligation, whether evidenced by
deeds of trust, mortgages, security agreements or any other
instruments of security; or
(iv) alter, substitute or release any property securing
the Secured Obligations.
(b) Trustee may perform any of the following acts when
requested to do so by Beneficiary in writing:
(i) consent to the making of any plat or map of the
Property or any part of it;
(ii) join in granting any easement or creating any
restriction affecting the Property;
(iii) join in any subordination or other agreement
affecting this Deed of Trust or the lien of it; or
(iv) reconvey the Property or any part of it without any
warranty.
4.7 Reconveyance. When all of the Secured Obligations have been paid
in full and no further commitment to extend credit continues, Trustee shall
reconvey the Property, or so much of it as is then held under this Deed of
Trust, without warranty to the person or persons legally entitled to it. In the
reconveyance, the grantee may be described as "the person or persons legally
entitled thereto," and the recitals of any matters or facts shall be conclusive
proof of their truthfulness. Neither Beneficiary nor Trustee shall have any duty
to determine the rights of persons claiming to be rightful grantees of any
reconveyance.
4.8 Compensation and Reimbursement of Costs and Expenses.
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(a) Trustor agrees to pay fees in the maximum amounts legally
permitted, or reasonable fees as may be charged by Beneficiary and Trustee
when the law provides no maximum limit, for any services that Beneficiary
or Trustee may render in connection with this Deed of Trust, including
Beneficiary's providing a statement of the Secured Obligations or
Trustee's rendering of services in connection with a reconveyance. Trustor
shall also pay or reimburse all of Beneficiary's and Trustee's costs and
expenses which may be incurred in rendering
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any such services.
(b) Trustor further agrees to pay or reimburse Beneficiary for
all costs, expenses and other advances which may be incurred or made by
Beneficiary or Trustee to protect or preserve the Property or to enforce
any terms of this Deed of Trust, including the exercise of any rights or
remedies afforded to Beneficiary or Trustee or both of them under
Paragraph 5.3, whether any lawsuit is filed or not, or in defending any
action or proceeding arising under or relating to this Deed of Trust,
including attorneys' fees and other legal costs, costs of any sale of the
Property and any cost of evidence of title.
(c) Trustor shall pay all obligations arising under this
Paragraph immediately upon demand by Trustee or Beneficiary. Each such
obligation shall be added to, and considered to be part of, the principal
of the Secured Obligations, and shall bear interest from the date the
obligation arises at the rate provided in any instrument or agreement
evidencing the Secured Obligations. If more than one rate of interest is
applicable to the Secured Obligations, the highest rate shall be used for
purposes hereof. If the instrument or agreement evidencing the Secured
Obligations does not state a rate of interest, interest shall accrue at
the rate of ten percent (10%) per annum.
4.9 Exculpation and Indemnification.
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(a) Beneficiary shall not be directly or indirectly liable to
Trustor or any other person as a consequence of any of the following:
(i) Beneficiary's exercise of or failure to exercise any
rights, remedies or powers granted to it in this Deed of Trust;
(ii) Beneficiary's failure or refusal to perform or
discharge any obligation or liability of Trustor under any agreement
related to the Property or under this Deed of Trust;
(iii) Beneficiary's failure to produce Rents from the
Property or to perform any of the obligations of the lessor under
any lease covering the Property;
(iv) any waste committed by lessees of the Property or
any other parties, or any dangerous or defective condition of the
Property; or
(v) any loss sustained by Trustor or any third party
resulting from any act or omission of Beneficiary in operating or
managing the Property upon exercise of the rights or remedies
afforded Beneficiary under Paragraph 5.3, unless the loss is caused
by the wilful misconduct and bad faith of Beneficiary.
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Trustor hereby expressly waives and releases all liability of the types
described above, and agrees that no such liability shall be asserted
against or imposed upon Beneficiary.
(b) Trustor agrees to indemnify Trustee and Beneficiary
against and hold them harmless from all losses, damages, liabilities,
claims, causes of action, judgments, court costs, attorneys' fees and
other legal expenses, cost of evidence of title, cost of evidence of
value, and other costs and expenses which either may suffer or incur in
performing any act required or permitted by this Deed of Trust or by law
or because of any failure of Trustor to perform any of its obligations.
This agreement by Trustor to indemnify Trustee and Beneficiary shall
survive the release and cancellation of any or all of the Secured
Obligations and the full or partial release and/or reconveyance of this
Deed of Trust.
4.10 Defense and Notice of Claims and Actions. At Trustor's sole
expense, Trustor shall protect, preserve and defend the Property and title to
and right of possession of the Property, and the security of this Deed of Trust
and the rights and powers of Beneficiary and Trustee created under it, against
all adverse claims. Trustor shall give Beneficiary and Trustee prompt notice in
writing if any claim is asserted which does or could affect any of these
matters, or if any action or proceeding is commenced which alleges or relates to
any such claim.
4.11 Substitution of Trustee. From time to time, Beneficiary may
substitute a successor to any Trustee named in or acting under this Deed of
Trust in any manner now or later to be provided at law, or by a written
instrument executed and acknowledged by Beneficiary and recorded in the office
of the recorder of the county where the Property is situated. Any such
instrument shall be conclusive proof of the proper substitution of the successor
Trustee, who shall automatically upon recordation of the instrument succeed to
all estate, title, rights, powers and duties of the predecessor Trustee, without
conveyance from it.
4.12 Site Visits, Observation and Testing. Beneficiary shall have
the right at any reasonable time to enter and visit the Property for the
purposes of performing appraisals, observing the Property, taking and removing
soil or groundwater samples, and conducting tests on any part of the Property.
Beneficiary shall have no duty, however, to visit or observe the Property or to
conduct tests, and no site visit, observation or testing by Beneficiary shall
impose any liability on Beneficiary. In no event shall any site visit,
observation or testing by Beneficiary be a representation that Hazardous
Substances are or are not present in, on or under the Property, or that there
has been or shall be compliance with any law, regulation or ordinance pertaining
to Hazardous Substances or any other applicable governmental law. Neither
Trustor nor any other party is entitled to rely on any site visit, observation
or testing by Beneficiary. Beneficiary owes no duty of care to protect Trustor
or any other party against, or to inform Trustor or any other party of, any
Hazardous Substances or any other adverse condition affecting the Property.
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Beneficiary shall give Trustor reasonable notice before entering the Property.
Beneficiary shall make reasonable efforts to avoid interfering with Trustor's
use of the Property in exercising any rights provided in this Paragraph. For
purposes of this Paragraph, "Hazardous Substance" means any substance, material
or waste which is or becomes designated, classified or regulated as being
"toxic" or "hazardous" or which is or become similarly designated, classified or
regulated under any federal, state or local law, regulation or ordinance.
4.13 Impound Account. At the request of Beneficiary, Trustor will
monthly pay to Beneficiary an amount equal to one-twelfth (1/12th) of the annual
costs of taxes and assessments on the Property plus the estimated next insurance
premiums on policies of insurance required under Paragraph 4.4 of this Deed of
Trust divided by the number of months between the date of computation and the
date the insurance premiums are due. Beneficiary may release the amounts paid
under this Paragraph to Trustor for payment by Trustor of such taxes,
assessments and insurance premiums, or Beneficiary may use such amounts to
itself pay such taxes, assessments and insurance premiums, at Beneficiary's
option.
5. ACCELERATING TRANSFERS, DEFAULT AND REMEDIES.
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5.1 Accelerating Transfers
----------------------
(a) "Accelerating Transfer" means any sale, contract to sell,
conveyance, encumbrance, lease, or other transfer, whether voluntary,
involuntary, by operation of law or otherwise, of all or any material part
of the Property or any interest in it, including any transfer or exercise
of any right to drill for or to extract any water (other than for
Trustor's own use), oil, gas or other hydrocarbon substances or any
mineral of any kind on or under the surface of the Property. If Trustor is
a corporation, "Accelerating Transfer" also means any transfer or
transfers of shares possessing, in the aggregate, more than fifty percent
(50%) of the voting power. If Trustor is a partnership, "Accelerating
Transfer" also means withdrawal or removal of any general partner,
dissolution of the partnership under Nevada law, or any transfer or
transfers of, in the aggregate, more than fifty percent (50%) of the
partnership interests. If Trustor is a limited liability company,
"Accelerating Transfer" also means withdrawal or removal of any manager,
dissolution of the limited liability company under Nevada law, or any
transfer or transfers of, in the aggregate, more than fifty percent (50%)
of the membership interests.
(b) Trustor agrees that Trustor shall not make any
Accelerating Transfer, unless the transfer is preceded by Beneficiary's
express written consent to the particular transaction and transferee.
Beneficiary may withhold such consent in its sole discretion. If any
Accelerating Transfer occurs, Beneficiary in its sole discretion may
declare all of the Secured Obligations to be immediately due and payable,
and Beneficiary and Trustee may invoke any rights and remedies provided
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by Paragraph 5.3 of this Deed of Trust.
5.2 Events of Default. The occurrence of any one or more of the
following events, at the option of Beneficiary, shall constitute an event of
default ("Event of Default") under this Deed of Trust:
(a) Obligor fails to make any payment, when due, under the
Debt Instrument (after giving effect to any applicable grace period), or
any other default occurs under and as defined in the Debt Instrument or in
any other instrument or agreement evidencing any of the Secured
Obligations and such default continues beyond any applicable cure period;
(b) Trustor fails to make any payment or perform any
obligation which arises under this Deed of Trust;
(c) Any representation or warranty made in connection with
this Deed of Trust or the Secured Obligations proves to have been false or
misleading in any material respect when made; or
(d) Any default occurs under any other deed of trust on all or
any part of the Property, or under any obligation secured by such deed of
trust, whether such deed of trust is prior to or subordinate to this Deed
of Trust.
5.3 Remedies. At any time after the occurrence of an Event of
Default, Beneficiary and Trustee shall be entitled to invoke any and all of the
rights and remedies described below, as well as any other rights and remedies
authorized by law. All of such rights and remedies shall be cumulative, and the
exercise of any one or more of them shall not constitute an election of
remedies.
(a) Beneficiary may declare any or all of the Secured
Obligations to be due and payable immediately.
(b) Beneficiary may apply to any court of competent
jurisdiction for, and obtain appointment of, a receiver for the Property.
(c) Beneficiary, in person, by agent or by court-appointed
receiver, may enter, take possession of, manage and operate all or any
part of the Property, and in its own name or in the name of Trustor sue
for or otherwise collect any and all Rents, including those that are past
due, and may also do any and all other things in connection with those
actions that Beneficiary may in its sole discretion consider necessary and
appropriate to protect the security of this Deed of Trust. Such other
things may include: entering into, enforcing, modifying, or canceling
leases on such terms and conditions as Beneficiary may consider proper;
obtaining and evicting tenants; fixing or modifying Rents; completing any
unfinished construction; contracting for and making repairs and
alterations; performing such
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acts of cultivation or irrigation as necessary to conserve the value of
the Property; and preparing for harvest, harvesting and selling any crops
that may be growing on the property. Trustor hereby irrevocably
constitutes and appoints Beneficiary as its attorney-in-fact to perform
such acts and execute such documents as Beneficiary in its sole discretion
may consider to be appropriate in connection with taking these measures,
including endorsement of Trustor's name on any instruments. Trustor agrees
to deliver to Beneficiary all books and records pertaining to the
Property, including computer-readable memory and any computer hardware or
software necessary to access or process such memory, as may reasonably be
requested by Beneficiary in order to enable Beneficiary to exercise its
rights under this Paragraph.
(d) Either Beneficiary or Trustee may cure any breach or
default of Trustor, and if it chooses to do so in connection with any such
cure, Beneficiary or Trustee may also enter the Property and/or do any and
all other things which it may in its sole discretion consider necessary
and appropriate to protect the security of this Deed of Trust. Such other
things may include: appearing in and/or defending any action or proceeding
which purports to affect the security of, or the rights or powers of
Beneficiary or Trustee under, this Deed of Trust; paying, purchasing,
contesting or compromising any encumbrance, charge, lien or claim of lien
which in Beneficiary's or Trustee's sole judgment is or may be senior in
priority to this Deed of Trust, such judgment of Beneficiary or Trustee to
be conclusive as among the parties to this Deed of Trust; obtaining
insurance and/or paying any premiums or charges for insurance required to
be carried under this Deed of Trust; otherwise caring for and protecting
any and all of the Property; and/or employing counsel, accountants,
contractors and other appropriate persons to assist Beneficiary or
Trustee. Beneficiary and Trustee may take any of the actions permitted
hereunder either with or without giving notice to any person.
(e) Beneficiary may bring an action in any court of competent
jurisdiction to foreclose this instrument or to obtain specific
enforcement of any of the covenants or agreements of this Deed of Trust.
(f) Beneficiary may cause the Property to be sold by Trustee
as permitted by applicable law. Before any such trustee's sale,
Beneficiary or Trustee shall give such notice of default and election to
sell as may then be required by law. When all time periods then legally
mandated have expired, and after such notice of sale as may then be
legally required has been given, Trustee shall sell the Property, either
as a whole or in separate parcels, and in such order as Trustee may
determine, at a public auction to be held at the time and place specified
in the notice of sale. Neither Trustee nor Beneficiary shall have any
obligation to make demand on Trustor before any trustee's sale. From time
to time in accordance with then applicable law, Trustee may, and in any
event at Beneficiary's request shall, postpone any trustee's sale by
public announcement at the time and place noticed for that sale. At any
trustee's sale, Trustee shall sell to the highest bidder at public auction
for cash in lawful money of the United States. Any person, including
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Trustor, Trustee or Beneficiary, may purchase at the trustee's sale.
Trustee shall execute and deliver to the purchaser(s) a deed or deeds
conveying the property being sold without any covenant or warranty
whatsoever, express or implied. The recitals in any such deed of any
matters or facts, including any facts bearing upon the regularity or
validity of any trustee's sale, shall be conclusive proof of their
truthfulness. Any such deed shall be conclusive against all persons as to
the facts recited in it.
5.4 Application of Sale Proceeds and Rents.
--------------------------------------
(a) Beneficiary and Trustee shall apply the proceeds of any
sale of the Property in the following manner: first, to pay the portion of
the Secured Obligations attributable to the costs, fees and expenses of
the sale, including costs of evidence of title in connection with the
sale; and, second, to pay all other Secured Obligations in any order and
proportions as Beneficiary in its sole discretion may choose. The
remainder, if any, shall be remitted to the person or persons entitled
thereto.
(b) Beneficiary shall apply any and all Rents collected by it,
and any and all sums other than proceeds of any sale of the Property which
Beneficiary may receive or collect under Paragraph 5.3, in the following
manner: first, to pay the portion of the Secured Obligations attributable
to the costs and expenses of operation and collection that may be incurred
by Trustee, Beneficiary or any receiver; and, second, to pay all other
Secured Obligations in any order and proportions as Beneficiary in its
sole discretion may choose. The remainder, if any, shall be remitted to
the person or persons entitled thereto. Beneficiary shall have no
liability for any funds which it does not actually receive.
6. MISCELLANEOUS PROVISIONS
------------------------
6.1 No Waiver or Cure.
-----------------
(a) Each waiver by Beneficiary or Trustee must be in writing,
and no waiver shall be construed as a continuing waiver. No waiver shall
be implied from any delay or failure by Beneficiary or Trustee to take
action on account of any default of Trustor. Consent by Beneficiary or
Trustee to any act or omission by Trustor shall not be construed as a
consent to any other or subsequent act or omission or to waive the
requirement for Beneficiary's or Trustee's consent to be obtained in any
future or other instance.
(b) If any of the events described below occurs, that event
alone shall not cure or waive any breach, Event of Default or notice of
default under this Deed of Trust or invalidate any act performed pursuant
to any such default or notice; or nullify the effect of any notice of
default or sale (unless all Secured Obligations then due have been paid
and performed); or impair the security of this Deed of Trust; or
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prejudice Beneficiary, Trustee or any receiver in the exercise of any
right or remedy afforded any of them under this Deed of Trust; or be
construed as an affirmation by Beneficiary of any tenancy, lease or
option, or a subordination of the lien of this Deed of Trust:
(i) Beneficiary, its agent or a receiver takes
possession of all or any part of the Property;
(ii) Beneficiary collects and applies Rents, either with
or without taking possession of all or any part of the Property;
(iii) Beneficiary receives and applies to any Secured
Obligation proceeds of any Property, including any proceeds of
insurance policies, condemnation awards, or other claims, property
or rights assigned to Beneficiary under this Deed of Trust;
(iv) Beneficiary makes a site visit, observes the
Property and/or conducts tests thereon;
(v) Beneficiary receives any sums under this Deed of
Trust or any proceeds of any collateral held for any of the Secured
Obligations, and applies them to one or more Secured Obligations;
(vi) Beneficiary, Trustee or any receiver performs any
act which it is empowered or authorized to perform under this Deed
of Trust or invokes any right or remedy provided under this Deed of
Trust.
6.2 Powers of Beneficiary and Trustee.
---------------------------------
(a) Trustee shall have no obligation to perform any act which
it is empowered to perform under this Deed of Trust unless it is requested
to do so in writing and is reasonably indemnified against loss, cost,
liability and expense.
(b) Beneficiary may take any of the actions permitted under
Paragraphs 5.3(b) and/or 5.3(c) regardless of the adequacy of the security
for the Secured Obligations, or whether any or all of the Secured
Obligations have been declared to be immediately due and payable, or
whether notice of default and election to sell has been given under this
Deed of Trust.
(c) From time to time, Beneficiary or Trustee may apply to any
court of competent jurisdiction for aid and direction in executing the
trust and enforcing the rights and remedies created under this Deed of
Trust. Beneficiary or Trustee may from time to time obtain orders or
decrees directing, confirming or approving acts in executing this trust
and enforcing these rights and remedies.
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6.3 Nonborrower Trustor.
-------------------
(a) If any Trustor ("Nonborrower Trustor") is not the Obligor
under the Debt Instrument described in Paragraph 2.1(a), such Nonborrower
Trustor authorizes Beneficiary to perform any of the following acts at any
time, all without notice to Nonborrower Trustor and without affecting
Beneficiary's rights or Nonborrower Trustor's obligations under this Deed
of Trust:
(i) Beneficiary may alter any terms of the Debt
Instrument or any part of it, including renewing, compromising,
extending or accelerating, or otherwise changing the time for
payment of, or increasing or decreasing the rate of interest on, the
Debt Instrument or any part of it;
(ii) Beneficiary may take and hold security for the Debt
Instrument, accept additional or substituted security for the Debt
Instrument, and subordinate, exchange, enforce, waive, release,
compromise, fail to perfect, sell or otherwise dispose of any such
security;
(iii) Beneficiary may apply any security now or later
held for the Debt Instrument in any order that Beneficiary in its
sole discretion may choose, and may direct the order and manner of
any sale of all or any part of it and bid at any such sale;
(iv) Beneficiary may release Obligor of its liability
for the Debt Instrument or any part of it; and
(v) Beneficiary may substitute, add or release any one
or more guarantors or endorsers of the Debt Instrument.
(b) Nonborrower Trustor waives:
(i) Any right it may have to require Beneficiary to
proceed against Obligor, proceed against or exhaust any security
held from Obligor, or pursue any other remedy in Beneficiary's power
to pursue;
(ii) Any defense based on any legal disability of
Obligor, any discharge or limitation of the liability of Obligor to
Beneficiary, whether consensual or arising by operation of law or
any bankruptcy, reorganization, receivership, insolvency, or
debtor-relief proceeding, or from any other cause, or any claim that
Nonborrower Trustor's obligations exceed or are more burdensome than
those of Obligor;
(iii) All presentments, demands for performance, notices
of nonperformance, protests, notices of protest, notices of
dishonor, notices of acceptance of this Deed of Trust and of the
existence, creation, or incurring
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of new or additional indebtedness of Obligor, and demands and
notices of every kind;
(iv) Any defense based on or arising out of any defense
that Obligor may have to the payment or performance of the Debt
Instrument or any part of it; and
(v) All rights of subrogation, reimbursement,
indemnification and contribution (contractual, statutory or
otherwise), including any claim or right of subrogation under the
Bankruptcy Code (Title 11 of the U.S. Code) or any successor
statute, all rights to enforce any remedy that the Beneficiary may
have against Obligor, and all rights to participate in any security
now or later to be held by Beneficiary for the Debt Instrument.
(c) Nonborrower Trustor assumes full responsibility for
keeping informed of Xxxxxxx's financial condition and business operations
and all other circumstances affecting Obligor's ability to pay and perform
its obligations to Beneficiary, and agrees that Beneficiary shall have no
duty to disclose to Nonborrower Trustor any information which Beneficiary
may receive about Obligor's financial condition, business operations, or
any other circumstances bearing on its ability to perform.
(d) For purposes of this Paragraph 6.3, all references to the
Debt Instrument shall also include any instrument or agreement executed by
Obligor subsequent to the date of this Deed of Trust which is secured by
this Deed of Trust in accordance with the provisions of Paragraph 2.1(c).
6.4 Merger. No merger shall occur as a result of Beneficiary's
acquiring any other estate in or any other lien on the Property unless
Beneficiary consents to a merger in writing.
6.5 Joint and Several Liability. If Trustor consists of more than
one person, each shall be jointly and severally liable for the faithful
performance of all of Trustor's obligations under this Deed of Trust.
6.6 Applicable Law. This Deed of Trust shall be governed by Nevada
law.
6.7 Successors in Interest. The terms, covenants and conditions of
this Deed of Trust shall be binding upon and inure to the benefit of the heirs,
successors and assigns of the parties. However, this Paragraph does not waive
the provisions of Paragraph 5.1.
6.8 Interpretation. Whenever the context requires, all words used in
the singular will be construed to have been used in the plural, and vice versa,
and each gender will include any other gender. The captions of the sections of
this Deed of Trust are for
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convenience only and do not define or limit any terms or provisions. The word
"include(s)" means "include(s), without limitation," and the word "including"
means "including, but not limited to." The word "obligations" is used in its
broadest and most comprehensive sense, and includes all primary, secondary,
direct, indirect, fixed and contingent obligations. It further includes all
principal, interest, prepayment charges, late charges, loan fees and any other
fees and charges accruing or assessed at any time, as well as all obligations to
perform acts or satisfy conditions. No listing of specific instances, items or
matters in any way limits the scope or generality of any language of this Deed
of Trust. The Exhibits to this Deed of Trust are hereby incorporated in this
Deed of Trust. "NRS" means Nevada Revised Statutes, and references to particular
sections of NRS includes any amendment or recodification of such section.
6.9 In-House Counsel Fees. Whenever Trustor is obligated to pay or
reimburse Beneficiary or Trustee for any attorneys' fees, those fees shall
include the allocated costs for services of in-house counsel.
6.10 Waiver of Marshaling. Trustor waives all rights, legal and
equitable, it may now or hereafter have to require marshaling of assets or to
direct the order in which any of the Property will be sold in the event of any
sale under this Deed of Trust, including any rights provided by NRS 100.040 and
100.050. Each successor and assign of Trustor, including any holder of a lien
subordinate to this Deed of Trust, by acceptance of its interest or lien agrees
that it shall be bound by the above waiver, as if it had given the waiver
itself.
6.11 Severability. If any provision of this Deed of Trust should be
held unenforceable or void, that provision shall be deemed severable from the
remaining provisions and in no way affect the validity of this Deed of Trust
except that if such provision relates to the payment of any monetary sum, then
Beneficiary may, at its option, declare all Secured Obligations immediately due
and payable.
6.12 Notices. Trustor hereby requests that a copy of notice of
default and notice of sale be mailed to it at the address set forth below. That
address is also the mailing address of Trustor as debtor under the Nevada
Uniform Commercial Code. Beneficiary's address given below is the address for
Beneficiary as secured party under the Nevada Uniform Commercial Code.
6.13 Incorporation of Certain Nevada Covenants. The following
covenants, Nos. 1, 2 (an amount equal to the full replacement value), 3, 4 (the
default rate provided for in the Debt Instrument), 6, 7 (a reasonable), 8 and 9
of NRS 107.030, are hereby adopted and made a part of this Deed of Trust,
provided, that with respect to covenant Nos. 1, 2, 3, and 4 in the event of any
conflict between such covenants and the Debt Instrument or the other provisions
of this Deed of Trust, the Debt Instrument or such other provisions shall
prevail. Upon any Event of Default by Trustor hereunder, Beneficiary may (a)
declare all sums secured immediately due and payable without demand or notice
and/or (b) have a receiver appointed as a matter of right without regard to the
sufficiency
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of the Property or any other security or guaranty and without any showing as
required by NRS 107.100. All remedies provided in this Deed of Trust are
distinct and cumulative to any other right or remedy under this Deed of Trust or
afforded by law or equity and may be exercised concurrently, independently or
successively. A sale of Property conducted pursuant to Covenants Nos. 6, 7 and 8
of NRS 107.030 may be conducted either as to the whole of the Property or in
separate parcels and in such order as Beneficiary or Trustee may determine.
[ ] If this box is checked, ________________________________________________
signs as Trustor solely for the purpose of subjecting any potential
community property interest in the Property to this Deed of Trust.
Addresses for Notices: LAS VEGAS INDUSTRIAL PARK, LLC, a Nevada
limited liability company
P.O. Box 18747
Charlotte, NC 28218 By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
----------------------
Title: Manager
----------------------
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STATE OF NC
------
COUNTY OF Union
-------
This instrument was acknowledged before me on Jan. 12, 2000 by Xxxxxxx X.
Xxxxxx as Manager of LAS VEGAS INDUSTRIAL PARK, LLC, a Nevada limited liability
company.
s/ Xxxxx Xxxxx
------------------------------------
Notary Public
My commission expires: 8-12-03
--------------
[NOTARY SEAL]
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