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[California]
Recording requested by, and when
recorded, please return to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
a partnership which includes
professional corporations
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx Xxxxxx Xxxxx, Esq.
THIS INSTRUMENT IS TO BE INDEXED IN THE OFFICE OF THE LOS ANGELES COUNTY RECORDS
AS BOTH A DEED OF TRUST AND A FIXTURE FILING
DEED OF TRUST, ASSIGNMENT OF
RENTS AND LEASES, SECURITY
AGREEMENT AND FIXTURE FILING
from
TELEX COMMUNICATIONS, INC., Grantor
to
CHICAGO TITLE INSURANCE COMPANY, Trustee
for the use and
benefit of
THE CHASE MANHATTAN BANK, as Administrative Agent, Beneficiary
DATED AS OF FEBRUARY 2, 1998
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[California]
DEED OF TRUST, ASSIGNMENT OF RENTS
AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT AND FIXTURE FILING, dated as of February 2, 1998, is made by TELEX
COMMUNICATIONS, INC., a Delaware corporation, formerly known as EV
International, Inc. ("Grantor"), whose address is 0000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxx, XX 00000, to CHICAGO TITLE INSURANCE COMPANY, a Missouri
corporation, ("Trustee") whose address is 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxx, XX 00000, for the use and benefit of THE CHASE MANHATTAN BANK, a New
York banking corporation whose address is 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as Administrative Agent (in such capacity, "Beneficiary") for the several
banks and other financial institutions (the "Lenders") from time to time parties
to the Credit Agreement dated as of May 6, 1997 among GST Acquisition Corp.,
Xxxxxx Xxxxxxx Senior Funding, Inc. ("Xxxxxx Xxxxxxx") and Beneficiary, as
amended by Amendment No. 1 dated as of February 2, 1998 (the "Amendment") among
Grantor, Xxxxxx Xxxxxxx and Beneficiary (as the same may be further amended,
supplemented, waived or otherwise modified from time to time the "Credit
Agreement"). References to this "Deed of Trust" shall mean this instrument and
any and all renewals, modifications, amendments, supplements, extensions,
consolidations, substitutions, spreaders and replacements of this instrument.
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned thereto in the Credit Agreement.
Background
A. Pursuant to an Exchange Agreement, dated as of January 30, 1998
(together with all other documents delivered in connection therewith, the
"Telex/EVI Merger Documents"), EV International, Inc. ("EVI") and Telex
Communications, Inc., a Delaware corporation, have effectuated a merger of Telex
Communications, Inc. with and into EVI, with EVI continuing as the surviving
corporation, in the process changing its name to Telex Communications, Inc.
B. Grantor is the owner of the parcel(s) of real property described
on Schedule A attached hereto (such real property, together with all of the
buildings, improvements, structures and fixtures now or subsequently located
thereon (the "Improvements"), being collectively referred to as the "Real
Estate").
C. Pursuant to the terms of the Credit Agreement, the Lenders have
agreed, among other things, to make the Loans and the Issuing Lender has agreed
to issue, and the L/C Participants have agreed to acquire undivided
participating interests in, the Letter(s) of Credit for the account of the
Borrower upon the terms and subject to
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the conditions set forth in the Credit Agreement which conditions include the
grant by Grantor to Beneficiary of a first lien upon and perfected security
interest in, among other things, all estate, right, title and interest of
Grantor in and to the Real Estate pursuant to the terms hereof.
D. It is a condition precedent to the effectiveness of the Amendment
that Grantor executes and delivers this Deed of Trust.
Granting Clauses
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Grantor agrees that to secure:
(a) the repayment of principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans (as they may be evidenced by the Notes from time to
time) and all other obligations (including the Reimbursement Obligations)
and liabilities of Grantor to Beneficiary, the Issuing Lender and the
Lenders, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred, which may arise under, out
of, or in connection with, the Credit Agreement, the Loans, the Letters of
Credit, the Security Documents, any Guarantee Obligation of Grantor as to
which any Lender is a beneficiary, any Permitted Hedging Arrangement with
any Lender or any banking affiliate of any Lender (whether entered into
directly, or guaranteed by Grantor), the Guarantee and Collateral
Agreement dated as of May 6, 1997 between Telex Communications, Inc.,
Telex Communications Group, Inc., TCI Holdings Corp. and Beneficiary (the
"Guarantee") or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees, charges and disbursements of
counsel to the Administrative Agent, the Issuing Lender or any Lender that
are required to be paid by any Loan Party pursuant to the Credit
Agreement) (the items set forth above being referred to collectively as
the "Indebtedness"); and
(b) the performance of all covenants, agreements, obligations and
liabilities of Grantor (the "Obligations") under or pursuant to the
provisions of
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the Credit Agreement, the Loans, this Deed of Trust, the Guarantee, any
other document securing payment of the Indebtedness (the "Security
Documents") and any amendments, supplements, extensions, renewals,
restatements, replacements or modifications of any of the foregoing (the
Credit Agreement, the Loans, the Letters of Credit, this Deed of Trust,
the Guarantee and all other documents and instruments from time to time
evidencing, securing or guaranteeing the payment of the Indebtedness or
the performance of the Obligations, as any of the same may be amended,
supplemented, extended, renewed, restated, replaced or modified from time
to time, are collectively referred to as the "Loan Documents");
GRANTOR HEREBY IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO TRUSTEE, IN TRUST,
WITH POWER OF SALE, THE FOLLOWING:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever of
Grantor, in possession or expectancy, in and to the Real Estate or any
part thereof;
(C) all right, title and interest of Grantor in, to and under all
easements, rights of way, gores of land, streets, ways, alleys, passages,
sewer rights, waters, water courses, water and riparian rights,
development rights, air rights, mineral rights and all estates, rights,
titles, interests, privileges, licenses, tenements, hereditaments and
appurtenances belonging, relating or appertaining to the Real Estate, and
any reversions, remainders, rents, issues, profits and revenue thereof and
all land lying in the bed of any street, road or avenue, in front of or
adjoining the Real Estate to the center line thereof;
(D) all right, title and interest of Grantor in and to all of the
fixtures, chattels, business machines, machinery, apparatus, equipment,
furnishings, fittings and articles of personal property of every kind and
nature whatsoever, and all appurtenances and additions thereto and
substitutions or replacements thereof (together with, in each case,
attachments, components, parts and accessories) currently owned or
subsequently acquired by Grantor and now or subsequently attached to, or
contained in or used or usable in any way in connection with any operation
or letting of the Real Estate, including but without limiting the
generality of the foregoing, all screens, awnings, shades, blinds,
curtains, draperies, artwork, carpets, rugs, storm doors and windows,
furniture and furnishings, heating, electrical, and mechanical equipment,
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lighting, switchboards, plumbing, ventilating, air conditioning and
air-cooling apparatus, refrigerating, and incinerating equipment,
escalators, elevators, loading and unloading equipment and systems,
stoves, ranges, laundry equipment, cleaning systems (including window
cleaning apparatus), telephones, communication systems (including
satellite dishes and antennae), televisions, computers, sprinkler systems
and other fire prevention and extinguishing apparatus and materials,
security systems, motors, engines, machinery, pipes, pumps, tanks,
conduits, appliances, fittings and fixtures of every kind and description
(all of the foregoing in this paragraph (D) being referred to as the
"Equipment");
(E) all right, title and interest of Grantor in and to all
substitutes and replacements of, and all additions and improvements to,
the Real Estate and the Equipment, subsequently acquired by or released to
Grantor or constructed, assembled or placed by Grantor on the Real Estate,
immediately upon such acquisition, release, construction, assembling or
placement, including, without limitation, any and all building materials
to be used by Grantor whether stored at the Real Estate or offsite, and,
in each such case, without any further mortgage, conveyance, assignment or
other act by Grantor;
(F) all right, title and interest of Grantor in, to and under all
leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or occupancy
of the Real Estate or the Equipment or any part thereof, now existing or
subsequently entered into by Grantor and whether written or oral and all
guarantees of any of the foregoing (collectively, as any of the foregoing
may be amended, restated, extended, renewed or modified from time to time,
the "Leases"), and all rights of Grantor in respect of cash and securities
deposited thereunder and the right to receive and collect the revenues,
income, rents, issues and profits thereof, together with all other rents,
royalties, issues, profits, revenue, income and other benefits arising
from the use and enjoyment of the Trust Property (as defined below)
(collectively, the "Rents");
(G) all books and records relating to or used in connection with the
operation of the Real Estate or the Equipment or any part thereof;
(H) all right, title and interest of Grantor, to the extent
assignable, in and to (i) all unearned premiums under insurance policies
now or subsequently obtained by Grantor relating to the Real Estate or
Equipment, (ii) any such insurance policies, (iii) all proceeds of any
such insurance policies (including
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title insurance policies) including the right to collect and receive such
proceeds, subject to the provisions relating to insurance generally set
forth below, and (iv) all awards and other compensation, including the
interest payable thereon and the right to collect and receive the same,
made to the present or any subsequent owner of the Real Estate or
Equipment for the taking by eminent domain, condemnation or otherwise, of
all or any part of the Real Estate or any easement or other right therein,
subject to the provisions relating to condemnation awards generally set
forth below;
(I) all right, title and interest of Grantor, to the extent
assignable, in and to (i) all contracts from time to time executed by
Grantor or any manager or agent on its behalf relating to the ownership,
construction, maintenance, repair, operation, occupancy, sale or financing
of the Real Estate or Equipment or any part thereof and all agreements
relating to the purchase or lease of any portion of the Real Estate or any
property which is adjacent or peripheral to the Real Estate, together with
the right to exercise such options (collectively, the "Contracts"), (ii)
all consents, licenses, building permits, certificates of occupancy and
other governmental approvals relating to construction, completion,
occupancy, use or operation of the Real Estate or any part thereof
(collectively, the "Permits") and (iii) all drawings, plans,
specifications and similar or related items relating to the Real Estate
(collectively, the "Plans");
(J) any and all monies now or subsequently on deposit for the
payment of real estate taxes or special assessments against the Real
Estate or for the payment of premiums on insurance policies covering the
foregoing property or otherwise on deposit with or held by Beneficiary as
provided in this Deed of Trust;
(K) all accounts and revenues arising from the operation of the
Improvements; and
(L) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now owned or
held or subsequently acquired by Grantor and described in the foregoing clauses
(A) through (E) are collectively referred to as the "Premises", and those
described in the foregoing clauses (A) through (L) are collectively referred to
as the "Trust Property").
TO HAVE AND TO HOLD the Trust Property and the rights and privileges
hereby granted unto Trustee, its successors and assigns for the uses and
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purposes set forth, until the Indebtedness is fully paid and the Obligations
fully performed or as otherwise expressly provided in the Section of this Deed
of Trust entitled "Reconveyance of Deed of Trust".
Terms and Conditions
Grantor further represents, warrants, covenants and agrees with
Trustee and Beneficiary as follows:
1. Warranty of Title. Grantor warrants that Grantor has good title
to the Real Estate in fee simple and good title to the rest of the Trust
Property, subject only to the matters that are set forth in Schedule B of the
title insurance policy or policies being issued to Beneficiary to insure the
lien of this Deed of Trust and Liens expressly permitted under the Credit
Agreement (collectively, the "Permitted Exceptions") and Grantor shall warrant,
defend and preserve such title and the rights granted by this Deed of Trust with
respect thereto against all claims of all persons and entities. Grantor further
warrants that it has the right to grant this Deed of Trust.
2. Payment of Indebtedness. Grantor shall pay the Indebtedness at
the times and places and in the manner specified in the Credit Agreement and
shall perform all the Obligations.
3. Requirements. (a) Grantor shall promptly comply with, or cause to
be complied with, and conform to all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, rules, regulations and requirements, and
irrespective of the nature of the work to be done, of each of the United States
of America, any State and any municipality, local government or other political
subdivision thereof and any agency, department, bureau, board, commission or
other instrumentality of any of them, now existing or subsequently created
(collectively, "Governmental Authority") which has jurisdiction over the Trust
Property and all covenants, restrictions and conditions now or later of record
which may be applicable to any of the Trust Property, or to the use, manner of
use, occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of any of the Trust Property, except to the extent that failure
to comply therewith, in the aggregate, would not reasonably be expected to have
a Material Adverse Effect. All present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, rules, regulations and requirements of
every Governmental Authority applicable to Grantor or to any of the Trust
Property and all covenants, restrictions, and conditions which now or later may
be applicable to any of the Trust Property are collectively referred to as the
"Legal Requirements".
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(b) From and after the date of this Deed of Trust, except as
expressly permitted under the Credit Agreement or herein, Grantor shall not by
act or omission permit, other than Permitted Exceptions, any building or other
improvement on any premises not subject to this Deed of Trust to rely on the
Premises or any part thereof or any interest therein to fulfill any Legal
Requirement, and Grantor hereby assigns to Beneficiary any and all rights to
give consent for all or any portion of the Premises or any interest therein to
be so used. Grantor shall not by act or omission impair the integrity of any of
the Real Estate as a single zoning lot separate and apart from all other
premises. Grantor represents that each parcel of the Real Estate constitutes a
legally subdivided lot, in compliance with all subdivision laws and similar
Legal Requirements, except to the extent that failure to comply therewith, in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect. Any act or omission by Grantor which would result in a violation of any
of the provisions of this subsection shall be void.
4. Payment of Taxes and Other Impositions. (a) Except as expressly
permitted under the Credit Agreement, Grantor, prior to delinquency, shall pay
and discharge all taxes of every kind and nature (including, without limitation,
all real and personal property, income, franchise, withholding, transfer, gains,
profits and gross receipts taxes), all charges for any easement or agreement
maintained for the benefit of any of the Trust Property, all general and special
assessments, levies, permits, inspection and license fees, all water and sewer
rents and charges and all other public charges even if unforeseen or
extraordinary, imposed upon or assessed against or which may become a lien on
any of the Trust Property, or arising in respect of the occupancy, use or
possession thereof, together with any penalties or interest on any of the
foregoing (all of the foregoing are collectively referred to as the
"Impositions"). Grantor shall within 30 days after the request of Beneficiary
deliver to Beneficiary (i) original or copies of receipted bills and cancelled
checks or other evidence of payment of such Imposition if it is a real estate
tax or other public charge and (ii) evidence acceptable to Beneficiary in its
reasonable discretion showing the payment of any other such Imposition. If by
law any Imposition, at Grantor's option, may be paid in installments (whether or
not interest shall accrue on the unpaid balance of such Imposition), Grantor may
elect to pay such Imposition in such installments and shall be responsible for
the payment of such installments with interest, if any.
(b) Nothing herein shall affect any right or remedy of Trustee or
Beneficiary under this Deed of Trust or otherwise, without notice or demand to
Grantor, to pay any Imposition after the date such Imposition shall have become
delinquent, and to add to the Indebtedness the amount so paid, together with
interest from the time of payment at the rate of interest described in paragraph
4.1(c) of the
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Credit Agreement (the "Default Rate"). Any sums paid by Trustee or Beneficiary
in discharge of any Impositions shall be (i) a charge on the Premises secured
hereby prior to any right or title to, interest in, or claim upon the Premises
subordinate to the lien of this Deed of Trust, and (ii) payable on demand by
Grantor to Trustee or Beneficiary, as the case may be, together with interest at
the Default Rate as set forth above.
(c) Grantor shall not claim, demand or be entitled to receive any
credit or credits toward the satisfaction of this Deed of Trust or on any
interest payable thereon for any taxes assessed against the Trust Property or
any part thereof, and shall not claim any deduction from the taxable value of
the Trust Property by reason of this Deed of Trust.
(d) Grantor shall have the right pursuant to subsection 7.3 of the
Credit Agreement to contest in good faith to the amount or validity of any
Imposition by appropriate proceedings diligently conducted with reserves in
conformity with GAAP, provided that Grantor shall demonstrate to Beneficiary's
reasonable satisfaction that such proceedings shall operate conclusively to
prevent the sale of the Trust Property, or any part thereof, to satisfy such
Imposition prior to final determination of such proceedings.
(e) Upon written notice to Grantor, Beneficiary during the
continuance of an Event of Default (as defined below) shall be entitled to
require Grantor to pay monthly in advance to Beneficiary the equivalent of
1/12th of the estimated annual Impositions. Beneficiary may commingle such funds
with its own funds but Grantor shall be entitled to interest thereon at a rate
mutually agreed upon by Grantor and Beneficiary.
5. Insurance. (a) Grantor shall maintain or cause to be maintained
on all of the Premises:
(i) property insurance against loss or damage by fire, lightning,
windstorm, tornado, water damage, flood, earthquake and by such other
further risks and hazards as now are or subsequently may be covered by an
"all risk" policy or a fire policy covering "special" causes of loss
(provided, however, that the maintenance of insurance against earthquake,
windstorm, flood and freeze risks shall be subject to availability of such
insurance coverage on commercially reasonable terms). The policy shall
include building ordinance law endorsements and the policy limits shall be
automatically reinstated after each loss (other than with respect to flood
and earthquake coverage which shall be reinstated on a commercially
reasonable basis);
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(ii) commercial general liability insurance under a policy including
the "broad form CGL endorsement" (or which incorporates the language or
similar language of such endorsement), covering all claims for personal
injury, bodily injury or death, or property damage, subject to standard
policy terms, conditions and exclusions, occurring on, in or about the
Premises in an amount not less than $10,000,000 combined single limit with
respect to personal injury, bodily injury or death, or property damage,
relating to any one occurrence plus such excess limits as Beneficiary
shall reasonably request from time to time;
(iii) when and to the extent reasonably required by Beneficiary,
insurance against loss or damage by any other risk commonly insured
against by persons occupying or using like properties in the locality or
localities in which the Real Estate is situated;
(iv) during the course of any construction or repair of
Improvements, commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), (including coverage for
elevators and escalators, if any). The policy shall include coverage for
independent contractors and completed operations. The completed operations
coverage shall stay in effect for two years after construction of any
Improvements has been completed. The policy shall provide coverage on an
occurrence basis against claims for personal injury, including, without
limitation, bodily injury and death, and property damage resulting from
Grantor's negligence or other behavior for which Grantor may be adjudged
tortiously liable, subject to standard policy terms, conditions and
exclusions, occurring on, in or about the Premises and the adjoining
streets, sidewalks and passageways, such insurance to afford immediate
minimum protection to a limit of not less than that reasonably required by
Beneficiary with respect to personal injury, bodily injury or death to any
one or more persons or damage to property;
(v) during the course of any construction or repair of the
Improvements, workers' compensation insurance (including employer's
liability insurance) for all employees of Grantor engaged on or with
respect to the Premises in such amounts no less than the limits
established by law or in the case of employer's liability insurance, no
less than $500,000, provided that Grantor may self-insure any or all
workers' compensation liabilities;
(vi) during the course of any construction, addition, alteration or
repair of the Improvements, builder's risk completed value property
insurance
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form against "all risks of physical loss" (subject to standard policy
exclusions), including collapse, water damage, flood and earthquake and
transit coverage, during construction or repairs of the Improvements, with
deductible approved by Beneficiary in its reasonable discretion, in
reporting form, covering the total replacement value of work performed and
equipment, supplies and materials furnished (with an appropriate limit for
soft costs in the case of construction); provided, however, that the
maintenance of insurance against earthquake and flood risks shall be
subject to availability of such insurance coverage on commercially
reasonable terms;
(vii) boiler and machinery property insurance covering pressure
vessels, air tanks, boilers, machinery, pressure piping, heating, air
conditioning and elevator equipment and escalator equipment, provided the
Improvements contain equipment of such nature, in such amounts as are
reasonably satisfactory to Beneficiary but not less than the lesser of
$1,000,000 or 10% of the value of the Improvements;
(viii) if any portion of the Premises are located in an area
identified in the Federal Register as having special flood hazards by the
Secretary of Housing and Urban Development or other applicable agency,
flood insurance covering any parcel of the Trust Property which contains
improvements in an amount satisfactory to Beneficiary in its reasonable
discretion, but in no event less than the maximum limit of coverage
available with respect to the particular type of property under the
National Flood Insurance Act of 1968, as amended and with a term ending
not later than the maturity of the Indebtedness and Beneficiary shall
receive confirmation that Grantor has received the notice required
pursuant to Section 208.8(e)(3) of Regulation H of the Board of Governors
of The Federal Reserve System; and
(ix) such other insurance in such amounts as Beneficiary may
reasonably request from time to time.
Each insurance policy (other than flood insurance written under the National
Flood Insurance Act of 1968, as amended, in which case to the extent available)
shall (i) provide that it shall not be cancelled, non-renewed or, in the case of
property and boiler and machinery insurance, materially amended without 30-days'
prior written notice to Beneficiary, (ii) with respect to all property
insurance, subject to availability on commercially reasonable terms, provide for
deductibles not to exceed $250,000, other than with respect to (a) flood,
freeze, windstorm and earthquake perils for which deductibles shall not exceed
the greater of $500,000 or 5% of values at risk per
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location involved in loss and (b) boiler and machinery coverage for which
deductibles shall not exceed the greater of $500,000 or five times 100% of the
daily time element value, contain a "Replacement Cost Endorsement" without any
deduction made for depreciation and with no co-insurance penalty (or attaching
an agreed amount endorsement satisfactory to Beneficiary in its reasonable
discretion), with loss payable solely to Beneficiary (modified, if necessary and
to the extent available under such policy, to provide that proceeds in the
amount of replacement cost may be retained by Beneficiary without the obligation
to rebuild) as its interest may appear, without contribution, under a "standard"
or "New York" mortgagee clause acceptable to Beneficiary in its reasonable
discretion and be written by insurance companies having an A.M. Best Company,
Inc. rating of A- or higher and a financial size category of not less than VII,
or otherwise as approved by Beneficiary in its reasonable discretion and (iii)
contain a "manuscript" endorsement providing that Grantor may not unilaterally
cancel such policy without Beneficiary's prior written consent. Liability
insurance policies shall name Beneficiary as an additional insured and contain a
waiver of subrogation against Beneficiary; all such policies shall indemnify and
hold Beneficiary harmless from all liability claims occurring on, in or about
the Premises and the adjoining streets, sidewalks and passageways, subject to
standard policy terms, conditions and exclusions. The amounts of each insurance
policy and the form of each such policy shall at all times be satisfactory to
Beneficiary in its reasonable discretion. Each policy shall expressly provide
that any proceeds which are payable to Beneficiary shall be paid by check
payable to the order of Beneficiary only and requiring the endorsement of
Beneficiary only. If any required insurance shall expire, be withdrawn, become
void by breach of any condition thereof by Grantor or by any lessee of any part
of the Trust Property or become void or unsafe by reason of the failure or
impairment of the capital of any insurer, Grantor shall immediately obtain new
or additional insurance satisfactory to Beneficiary in its reasonable
discretion. Grantor shall not take out any separate or additional insurance
which is contributing in the event of loss unless it is properly endorsed and
otherwise satisfactory to Beneficiary in all respects in its reasonable
discretion.
(b) Grantor shall deliver to Beneficiary an original of each
insurance policy required to be maintained, or a certificate of such insurance
acceptable to Beneficiary in its reasonable discretion, together with a copy of
the declaration page for each such policy. Grantor shall (i) pay as they become
due all premiums for such insurance, (ii) not later than seven days prior to the
expiration of each policy to be furnished pursuant to the provisions of this
Section, deliver a renewed policy or policies, or certificates of insurance
acceptable to Beneficiary, in its reasonable discretion, or duplicate original
or originals thereof. Upon the reasonable request of Beneficiary, Grantor shall
cause its insurance underwriter or broker to certify to
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Beneficiary in writing that all the requirements of this Deed of Trust governing
insurance have been satisfied.
(c) If Grantor is in default of its obligations to insure or deliver
any such policy or policies, or certificates of insurance acceptable to
Beneficiary, in its reasonable discretion, then Beneficiary, at its option and
without notice, may effect such insurance from year to year, and pay the premium
or premiums therefor, and Grantor shall pay to Beneficiary on demand such
premium or premiums so paid by Beneficiary with interest from the time of
payment at the Default Rate and the same shall be deemed to be secured by this
Deed of Trust and shall be collectible in the same manner as the Indebtedness
secured by this Deed of Trust.
(d) Grantor shall increase the amount of property insurance required
to equal 100% replacement cost pursuant to the provisions of this Section at the
time of each renewal of each policy (but not later than 12 months from the date
of this Deed of Trust and each successive 12 month period to occur thereafter)
by using the Xxxxxx & Swift Building Cost Index to determine whether there shall
have been an increase in the replacement value since the most recent adjustment
and, if there shall have been such an increase, the amount of insurance required
shall be adjusted accordingly.
(e) Grantor promptly shall in all material respects comply with and
conform to (i) all provisions of each such insurance policy, and (ii) all
requirements of the insurers applicable to Grantor or to any of the Trust
Property or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration or repair of any of the Trust Property. Grantor shall
not use or permit the use of the Trust Property in any manner which would permit
any insurer to cancel any insurance policy or void coverage required to be
maintained by this Deed of Trust.
(f) (i) If the Trust Property, or any part thereof, shall be
destroyed or damaged by fire or any other casualty, whether insured or
uninsured, or in the event any claim is made against Grantor for any
personal injury, bodily injury or property damage incurred on or about the
Premises, Grantor shall promptly give notice thereof to Beneficiary.
(ii) If the Trust Property is damaged by fire or other casualty and
the cost to repair such damage is less than $1,000,000, then provided that
no Event of Default shall have occurred and be continuing, Grantor shall
have the right to adjust such loss, and the insurance proceeds relating to
such loss may be paid over to Grantor; provided that Grantor shall,
promptly after any such damage, repair such damage to the extent required
by subsection 7.5 of the Credit
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Agreement regardless of whether any insurance proceeds have been received
or whether such proceeds, if received, are sufficient to pay for the costs
of repair.
(iii) If the Trust Property is damaged by fire or other casualty,
and the cost to repair such damage exceeds the limit in Section 5(f)(ii)
above, or if an Event of Default shall have occurred and be continuing,
then Grantor authorizes and empowers Beneficiary, at Beneficiary's option
and in Beneficiary's reasonable discretion, as attorney-in-fact for
Grantor, to make proof of loss, to adjust and compromise any claim under
any insurance policy, to appear in and prosecute any action arising from
any policy, to collect and receive insurance proceeds and to deduct
therefrom Beneficiary's reasonable expenses incurred in the collection
process. Each insurance company concerned is hereby authorized and
directed to make payment for such loss directly to Beneficiary.
Beneficiary shall have the right to require Grantor to repair or restore
the Trust Property to the extent required by subsection 7.5 of the Credit
Agreement, and Grantor hereby designates Beneficiary as its
attorney-in-fact for the purpose of making any election required or
permitted under any insurance policy relating to such repair or
restoration. The insurance proceeds or any part thereof received by
Beneficiary may be applied by Beneficiary toward reimbursement of all
reasonable costs and expenses of Beneficiary in collecting such proceeds,
and the balance, at Beneficiary's option in its sole and absolute
discretion, to the principal (to the installments in inverse order of
maturity, if payable in installments) and interest due or to become due
under the Notes, the Credit Agreement or the other Loan Documents, to
fulfill any other Obligation of Grantor, to the restoration or repair of
the property damaged, or released to Grantor. Application by Beneficiary
of any insurance proceeds toward the last maturing installments of
principal and interest due or to become due on the Loans shall not excuse
Grantor from making any regularly scheduled payments due thereunder, nor
shall such application extend or reduce the amount of such payments. In
the event Beneficiary elects to release such proceeds to Grantor, Grantor
shall be obligated to use such proceeds to restore or repair the Trust
Property to the extent required by subsection 7.5 of the Credit Agreement.
(g) In the event of foreclosure of this Deed of Trust or other
transfer of title to the Trust Property in extinguishment of the Indebtedness,
all right, title and interest of Grantor in and to any insurance policies then
in force, to the extent assignable or transferable, shall pass to the purchaser
or grantee and Grantor hereby appoints Beneficiary its attorney-in-fact, in
Grantor's name, to assign and transfer all such policies and proceeds to such
purchaser or grantee.
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(h) Upon written notice to Grantor, Beneficiary, during the
continuance of an Event of Default, shall be entitled to require Grantor to pay
monthly in advance to Beneficiary the equivalent of 1/12th of the estimated
annual premiums due on such insurance. Beneficiary may commingle such funds with
its own funds but Grantor shall be entitled to interest thereon at a rate
mutually agreed upon by Grantor and Beneficiary.
(i) Grantor may maintain insurance required under this Deed of Trust
by means of one or more blanket insurance policies maintained by Grantor;
provided, however, that (A) any such policy shall specify, or Grantor shall
furnish to Beneficiary a written statement from the insurer so specifying, the
maximum amount of the total insurance afforded by such blanket policy that is
allocated to the Premises and the other Trust Property and any sublimits and
aggregates in such blanket policy applicable to the Premises and the other Trust
Property, (B) each such blanket policy shall include an endorsement providing
that, in the event of a loss resulting from an insured peril, insurance proceeds
shall be allocated to the Trust Property in an amount equal to the coverages
required to be maintained by Grantor as provided above (subject to applicable
sublimits and aggregates) and (C) the protection afforded under any such blanket
policy shall be no less than that which would have been afforded under a
separate policy or policies relating only to the Trust Property (subject to
applicable sublimits and aggregates).
6. Restrictions on Liens and Encumbrances. Except for the lien of
this Deed of Trust and the Permitted Exceptions and except as otherwise
permitted pursuant to the terms of the Credit Agreement, Grantor shall not
further mortgage, nor otherwise encumber the Trust Property nor create or suffer
to exist any lien, charge or encumbrance on the Trust Property, or any part
thereof, whether superior or subordinate to the lien of this Deed of Trust and
whether recourse or non-recourse.
7. Due on Sale and Other Transfer Restrictions. Except as may be
otherwise expressly permitted under the Credit Agreement, Grantor shall not
sell, transfer, convey or assign all or any portion of, or any interest in, the
Trust Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a) Grantor
shall maintain or cause to be maintained all the Improvements in good condition
and repair and shall not commit or suffer any waste of the Improvements. To the
extent required under subsection 7.5 of the Credit Agreement, Grantor shall
repair, restore, replace or rebuild promptly any part of the Premises which may
be damaged or destroyed by any casualty whatsoever to a condition substantially
equivalent to its condition prior to the damage or destruction. Except as
permitted by the Credit
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Agreement, the Improvements shall not be demolished or materially altered, nor
any material additions built, without the prior written consent of Beneficiary,
provided that Grantor may make alterations or additions without the consent of
Beneficiary that do not materially reduce the value of the Trust Property.
(b) Beneficiary and any persons authorized by Beneficiary shall,
upon reasonable notice and at any reasonable time, have the right to enter and
inspect the Premises and the right to inspect all work done, labor performed and
materials furnished in and about the Improvements and the right to inspect and
make copies, to the extent reasonable, of all books, contracts and records of
Grantor relating to the Trust Property.
(c) Except as permitted under subsection 7.3 of the Credit
Agreement, Grantor shall pay or cause to be paid prior to delinquency, all
utility charges which are incurred for gas, electricity, water or sewer services
furnished to the Premises and all other assessments or charges of a similar
nature, whether public or private, affecting the Premises or any portion
thereof, whether or not such assessments or charges are liens thereon.
9. Condemnation/Eminent Domain. Promptly upon obtaining knowledge of
the institution of any proceedings for the condemnation of the Trust Property,
or any portion thereof, Grantor will notify Beneficiary of the pendency of such
proceedings. Grantor authorizes Beneficiary, at Beneficiary's option and in
Beneficiary's reasonable discretion, as attorney-in-fact for Grantor, to
commence, appear in and prosecute, in Beneficiary's or Grantor's name, any
action or proceeding relating to any condemnation of the Trust Property, or any
portion thereof, and to settle or compromise any claim in connection with such
condemnation upon the occurrence and during the continuance of an Event of
Default. If Beneficiary elects not to participate in such condemnation
proceeding, then Grantor shall, at its expense, diligently prosecute any such
proceeding and shall consult with Beneficiary, its attorneys and experts and
cooperate with them in any defense of any such proceedings. All awards and
proceeds of condemnation shall be applied in the same manner as insurance
proceeds, and to the extent such awards and proceeds exceed $1,000,000 and no
Event of Default shall have occurred and be continuing, such awards and proceeds
shall be assigned to Beneficiary to be applied in the same manner as insurance
proceeds, as provided above in subsection 5(f)(iii) above, and Grantor agrees to
execute any such assignments of all such awards as Beneficiary may request.
10. Restoration. If Beneficiary elects or is required hereunder to
release funds to Grantor for restoration of any of the Trust Property, then such
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restoration shall be performed in accordance with such conditions as Beneficiary
shall impose in its reasonable discretion, and as are customarily imposed by
construction lenders.
11. Leases. (a) Grantor shall not (i) execute an assignment or
pledge of any Lease relating to all or any portion of the Trust Property other
than in favor of Beneficiary, or (ii) without the prior written consent of
Beneficiary, which consent shall not be unreasonably withheld or delayed,
execute or permit to exist any Lease of any of the Trust Property, except for
Permitted Exceptions and except as may be otherwise expressly permitted under
the Credit Agreement.
(b) As to any Lease consented to by Beneficiary under subsection
11(a) above, Grantor shall:
(i) promptly perform in all material respects all of the provisions
of the Lease on the part of the lessor thereunder to be performed;
(ii) promptly enforce all of the material provisions of the Lease on
the part of the lessee thereunder to be performed;
(iii) appear in and defend any action or proceeding arising under or
in any manner connected with the Lease or the obligations of Grantor as
lessor or of the lessee thereunder;
(iv) exercise, within 5 business days after a reasonable request by
Beneficiary, any right to request from the lessee a certificate with
respect to the status thereof;
(v) promptly deliver to Beneficiary copies of any notices of default
which Grantor may at any time forward to or receive from the lessee;
(vi) promptly deliver to Beneficiary a fully executed counterpart of
the Lease; and
(vii) promptly deliver to Beneficiary, upon Beneficiary's reasonable
request, if permitted under such Lease, an assignment of the Grantor's
interest under such Lease.
(c) Grantor shall deliver to Beneficiary, within 10 business days
after a reasonable request by Beneficiary, a written statement, certified by
Grantor as being
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true, correct and complete, containing the names of all lessees and other
occupants of the Trust Property, the terms of all Leases and the spaces occupied
and rentals payable thereunder, and a list of all Leases which are then in
default, including the nature and magnitude of the default; such statement shall
be accompanied by such other information as Beneficiary may reasonably request.
(d) All Leases entered into by Grantor after the date hereof, if
any, and all rights of any lessees thereunder shall be subject and subordinate
in all respects to the lien and provisions of this Deed of Trust unless
Beneficiary shall otherwise elect in writing.
(e) In the event of the enforcement by Beneficiary of any remedy
under this Deed of Trust, the lessee under each Lease shall, if requested by
Beneficiary or any other person succeeding to the interest of Beneficiary as a
result of such enforcement, and if provided, at such lessee's request, with a
nondisturbance agreement from Beneficiary or such person, attorn to Beneficiary
or to such person and shall recognize Beneficiary or such successor in interest
as lessor under the Lease without change in the provisions thereof; provided
however, that Beneficiary or such successor in interest shall not be: (i) bound
by any payment of an installment of rent or additional rent which may have been
made more than 30 days before the due date of such installment; (ii) bound by
any amendment or modification to the Lease made without the consent of
Beneficiary or such successor in interest; (iii) liable for any previous act or
omission of Grantor (or its predecessors in interest); (iv) responsible for any
monies owing by Grantor to the credit of such lessee or subject to any credits,
offsets, claims, counterclaims, demands or defenses which the lessee may have
against Grantor (or its predecessors in interest); (v) bound by any covenant to
undertake or complete any construction of the Premises or any portion thereof;
or (vi) obligated to make any payment to such lessee other than any security
deposit actually delivered to Beneficiary or such successor in interest. Each
lessee or other occupant, upon request by Beneficiary or such successor in
interest, shall execute and deliver an instrument or instruments confirming such
attornment. In addition, Grantor agrees that each Lease entered into after the
date of this Deed of Trust shall include language to the effect of subsections
(d)-(e) of this Section and language to the effect that if any act or omission
of Grantor would give any lessee under such Lease the right, immediately or
after lapse of a period of time, to cancel or terminate such Lease, or to xxxxx
or offset against the payment of rent or to claim a partial or total eviction,
such lessee shall not exercise such right until it has given written notice of
such act or omission to Beneficiary and until a reasonable period for remedying
such act or omission shall have elapsed following the giving of such notice
without a remedy being effected; provided that the provisions of such
subsections shall be self-operative and any failure of any Lease to
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include such language shall not impair the binding effect of such provisions on
any lessee under such Lease.
12. Further Assurances/Estoppel Certificates. To further assure
Beneficiary's and Trustee's rights under this Deed of Trust, Grantor agrees upon
demand of Beneficiary or Trustee to do any act or execute any additional
documents (including, but not limited to, security agreements on any personalty
included or to be included in the Trust Property and a separate assignment of
each Lease in recordable form) as may be reasonably required by Beneficiary or
Trustee to confirm the rights or benefits conferred on Beneficiary or Trustee by
this Deed of Trust.
13. Beneficiary's Right to Perform. If Grantor fails to perform any
of the covenants or agreements of Grantor, Beneficiary or Trustee, without
waiving or releasing Grantor from any obligation or default under this Deed of
Trust, may, at any time (but shall be under no obligation to) pay or perform the
same, and the amount or cost thereof, with interest at the Default Rate, shall
immediately be due from Grantor to Beneficiary or Trustee (as the case may be)
and the same shall be secured by this Deed of Trust and shall be an encumbrance
on the Trust Property prior to any right, title to, interest in or claim upon
the Trust Property attaching subsequent to the date of this Deed of Trust. No
payment or advance of money by Beneficiary or Trustee under this Section shall
be deemed or construed to cure Grantor's default or waive any right or remedy of
Beneficiary or Trustee.
14. Events of Default. The occurrence of an Event of Default under
the Credit Agreement shall constitute an Event of Default hereunder.
15. Remedies. (a) Upon the occurrence of any Event of Default, in
addition to any other rights and remedies Beneficiary may have pursuant to the
Loan Documents, or as provided by law, and without limitation, the Indebtedness
and all other amounts payable with respect to the Loans, the Letters of Credit,
the Credit Agreement, this Deed of Trust and the other Security Documents shall
become due and payable as provided in the Credit Agreement. Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived. In addition, upon the
occurrence of any Event of Default, Beneficiary may immediately take such
action, without notice or demand, as it deems advisable to protect and enforce
its rights against Grantor and in and to the Trust Property, including, but not
limited to, the following actions, each of which may be pursued concurrently or
otherwise, at such time and in such manner as Beneficiary may determine, in its
sole discretion, without impairing or otherwise affecting the other rights and
remedies of Beneficiary:
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(i) Enter upon and take possession of the Trust Property or any part
thereof, with or without legal action, and do any acts which it deems necessary
or desirable to preserve the value, marketability or rentability of the Trust
Property, or any part thereof or the value of this Deed of Trust (including,
without limitation, entering into new leases of all or any part of the Trust
Property) and, with or without taking possession of the Trust Property, xxx for
or otherwise collect the rents, issues and profits thereof, including those past
due and unpaid, and apply the same, less costs and expenses of operation and
collection including reasonable attorneys' fees, upon the Indebtedness, all in
such order as Beneficiary may determine. The entering upon and taking possession
of the Trust Property, the collection of such rents, issues and profits and the
application thereof as aforesaid, shall not cure or waive any default or notice
of default hereunder or invalidate any act done in response to such default or
pursuant to such notice of default and, notwithstanding the continuance in
possession of the Trust Property or the collection, receipt and application of
rents, issues or profits, Beneficiary shall be entitled to exercise every right
provided for in any of the Loan Documents or by law.
(ii) Bring an action in any court of competent jurisdiction to
foreclose this Deed of Trust or to enforce any of the covenants, terms or
conditions hereof and Beneficiary shall have the right to specific performance,
injunction and any other equitable right or remedy as though other remedies were
not provided in this Deed of Trust.
(iii) Elect to cause the Trust Property or any part thereof to be
sold as follows, Grantor hereby expressly waiving any right which it may have to
direct the order in which any of the Trust Property may be sold:
(a) Beneficiary may proceed as if all of the Trust Property were
real property, in accordance with subparagraph (c) below, or Beneficiary
may elect to treat any of the Trust Property which consists of personal
property, in accordance with the Section of this Deed of Trust entitled
"Security Agreement Under Uniform Commercial Code", separate and apart
from the sale of real property, the remainder of the Trust Property being
treated as real property;
(b) Beneficiary may cause any such sale or other disposition to be
conducted immediately following the expiration of any grace period, if
any, herein provided or Beneficiary may delay any such sale or other
disposition for such period of time as Beneficiary deems to be in its best
interest. Should Beneficiary desire that more than one such sale or other
disposition be conducted, Beneficiary may, at its option, cause the same
to be conducted
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simultaneously, or successively on the same day, or at such different days
or times and in such order as Beneficiary may deem to be in its best
interest;
(c) Should Beneficiary elect to sell the Trust Property upon which
Beneficiary elects to proceed under the laws governing foreclosure of or
sales pursuant to Deeds of Trust, Beneficiary or Trustee shall give such
notice of default and election to sell as may then be required by law.
Thereafter, upon the expiration of such time and the giving of such notice
of sale as may then be required by law, Trustee, at the time and place
specified by the notice of sale, shall sell such Trust Property, or any
portion thereof specified by Beneficiary, at public auction to the highest
bidder for cash in lawful money of the United States, subject, however, to
the provisions of the Section of this Deed of Trust entitled "Right of
Beneficiary to Credit Sale". Trustee may, and upon request of Beneficiary
shall, from time to time, postpone the sale by public announcement thereof
at the time and place noticed therefor. If the Trust Property consists of
several lots or parcels, Beneficiary may elect to sell the Trust Property
either as a whole or in separate lots or parcels. If Beneficiary elects to
sell in separate lots or parcels, Beneficiary may designate the order in
which such lots or parcels shall be offered for sale or sold. Any person,
including Grantor, Trustee or Beneficiary, may purchase at the sale. Upon
any sale, Trustee shall execute and deliver to the purchaser or purchasers
a deed or deeds conveying the property so sold, but without any covenant
or warranty whatsoever, express or implied, whereupon such purchaser or
purchasers shall be let into immediate possession;
(d) In the event of a sale or other disposition of any such
property, or any part thereof, and the execution of a deed or other
conveyance pursuant thereto, the recitals therein of facts, such as an
Event of Default, the giving of notice of default and notice of sale,
demand that such sale should be made, postponement of sale, terms of sale,
sale, purchase, payments of purchase money, and any other fact affecting
the regularity or validity of such sale or disposition shall be conclusive
proof of the truth of such facts; and any such deed or conveyance shall be
conclusive against all persons as to such facts recited therein;
(e) Beneficiary and/or Trustee shall apply the proceeds of any sale
or disposition hereunder in the order as provided in the Section of this
Deed of Trust entitled "Sale of the Properties, Application of Proceeds";
and
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(iv) Exercise all other rights and remedies provided herein, in the
other Loan Documents or otherwise available at law or equity.
16. Sale of the Properties; Application of Proceeds. (a) Subject to
the requirements of applicable law, the proceeds or avails of any foreclosure
sale and all moneys received by Beneficiary pursuant to any right given or
action taken under the provisions of this Deed of Trust shall be applied as
follows:
First: To the payment of the costs and expenses of any such sale or
other enforcement proceedings in accordance with the terms hereof and of
any judicial proceeding wherein the same may be made, and in addition
thereto, reasonable compensation to Beneficiary, its agents and counsel,
and all actual out of pocket expenses, advances, liabilities and sums made
or furnished or incurred by Beneficiary or the holder of this Deed of
Trust under this Deed of Trust and the other Loan Documents, together with
interest at the Default Rate (or such lesser amount as may be the maximum
amount permitted by law), and all taxes, assessments or other charges,
except any taxes, assessments or other charges subject to which the Trust
Property shall have been sold;
Second: To the payment of the aggregate amount when due, owing and
unpaid (whether by acceleration or otherwise) upon the Indebtedness for
principal and interest; and in case such proceeds shall be insufficient to
pay in full the whole aggregate amount so due and unpaid, then first, to
the payment of all amounts of interest at the time due and payable on the
Indebtedness, without preference or priority of any installment of
interest over any other installment of interest, and with payment of
interest on the Notes and other instruments evidencing the Indebtedness
being applied pro rata based on the amount of interest then due pursuant
to the Notes, the Credit Agreement and other instrument evidencing the
Indebtedness, and second, to the payment of all amounts of principal, with
payment of principal due under the Notes, the Credit Agreement and other
instruments evidencing the Indebtedness being applied pro rata based on
the amount of principal due under the Notes, the Credit Agreement and
other instrument evidencing the Indebtedness; all such payments of
principal and interest to be made ratably to the holders entitled thereto.
Third: To the payment of any other sums required to be paid by
Grantor pursuant to any provision of this Deed of Trust, or any other Loan
Document.
Fourth: To the payment of the surplus, if any, to whomsoever may be
lawfully entitled to receive the same.
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17. Trustee's Powers and Liabilities.
(a) Powers of Trustee. At any time or from time to time, without
liability therefor and without notice, upon the written request of Beneficiary
and presentation of the Notes and the other instruments evidencing the
indebtedness and this Deed of Trust for endorsement, without affecting the
personal liability of any person for the payment of the indebtedness secured
hereby, and without affecting the lien of this Deed of Trust upon the Trust
Property for the full amount of all amounts secured hereby, Trustee may (i)
reconvey all or any part of the Trust Property, (ii) consent to the making of
any map or plat thereof, (iii) join in granting any easement thereon or in
creating any covenants or conditions restricting use or occupancy thereof, or
(iv) join in any extension agreement or in any agreement subordinating the lien
or charge hereof.
(b) Reconveyance. Upon written request of Beneficiary stating that
all sums secured hereby have been paid, and upon surrender of this Deed of Trust
and the Notes and the other instruments evidencing the Indebtedness to Trustee
for cancellation and retention, and upon payment of its fees, Trustee shall
reconvey, without warranty, the property then held hereunder. The recitals in
any such reconveyance of any matters or facts shall be conclusive proof of the
truth thereof. The grantee in such reconveyance may be described as "the person
or persons legally entitled thereto."
(c) Trustee Notice. Trustee is not obligated to notify any party
hereto of any pending sale under any other deed of trust or of any action or
proceeding in which Grantor, Beneficiary or Trustee shall be a party, unless
brought by Trustee.
(d) Compensation and Indemnification of Trustee. Trustee shall be
entitled to reasonable compensation for all services rendered or expenses
incurred in the administration or execution of the trusts hereby created and
Grantor hereby agrees to pay the same. Trustee shall be indemnified, held
harmless and reimbursed by Grantor for any liability, damage or expense,
including reasonable attorneys' fees and amounts paid in settlement, which
Trustee may incur or sustain in connection with this Deed of Trust or in the
doing of any act which Trustee is required or permitted to do by the terms
hereof or by law.
(e) Substitute Trustees. Beneficiary may substitute the Trustee
hereunder in any manner now or hereafter provided by law, or in lieu thereof,
Beneficiary may from time to time, by an instrument in writing, substitute a
successor or successors to any Trustee named herein or acting hereunder, which
instrument, executed and acknowledged by Beneficiary and recorded in the office
of the recorder of
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the county or counties where the Trust Property is situated, shall be conclusive
proof of proper substitution of such successor Trustee or Trustees, who shall
thereupon, and without conveyance from the predecessor Trustee, succeed to all
its title, estate, rights, powers and duties. Such instrument must contain the
name of the original Grantor, Trustee and Beneficiary hereunder, the book and
page where this Deed of Trust is recorded, the legal description of the Land and
the name and address of the new Trustee.
(f) Acceptance by Trustee. The acceptance by Trustee of this trust
shall be evidenced when this Deed of Trust, duly executed and acknowledged, is
made a public record as provided by law.
(g) Trust Irrevocable; No Offset. The trust created hereby is
irrevocable by Grantor. No offset or claim that Grantor now or may in the future
have against Beneficiary shall relieve Grantor from paying installments or
performing any other obligation herein or secured hereby.
(h) Corrections. Grantor will, upon request of Beneficiary or
Trustee, promptly correct any defect, error or omission which may be discovered
in the contents of this Deed of Trust or in the execution or acknowledgment
hereof, and will execute, acknowledge and deliver such further instruments and
do such further acts as may be necessary or as may be reasonably requested by
Beneficiary or Trustee to carry out more effectively the purposes of this Deed
of Trust, to subject to the lien and security interests hereby created any of
Grantor's properties, rights or interest covered or intended to be covered
hereby, and to perfect and maintain such lien and security interest.
18. Request for Notice. In accordance with California Civil Code
Section 2924b, a request is hereby made by Grantor that a copy of any notice of
default and a copy of any notice of sale under this Deed of Trust be mailed to
Grantor at Grantor's address set forth in the first paragraph of this Deed of
Trust.
19. Successor Grantor. In the event ownership of the Trust Property
or any portion thereof becomes vested in a person other than the Grantor herein
named, Beneficiary may, without notice to the Grantor herein named, whether or
not Beneficiary has given written consent to such change in ownership, deal with
such successor or successors in interest with reference to this Deed of Trust
and the Indebtedness and the Obligations, and in the same manner as with the
Grantor herein named, without in any way vitiating or discharging Grantor's
liability hereunder or under the Indebtedness and the Obligations.
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20. Right of Beneficiary to Credit Sale. Upon the occurrence of any
sale made under this Deed of Trust, whether made under the power of sale or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, Beneficiary may bid for and acquire the Trust Property or any part
thereof. In lieu of paying cash therefor, Beneficiary may make settlement for
the purchase price by crediting upon the Indebtedness or other sums secured by
this Deed of Trust the net sales price after deducting therefrom the expenses of
sale and the cost of the action and any other sums which Beneficiary is
authorized to deduct under this Deed of Trust. In such event, this Deed of
Trust, the Notes and other instruments evidencing the Indebtedness and any and
all documents evidencing expenditures secured hereby may be presented to the
person or persons conducting the sale in order that the amount so used or
applied may be credited upon the Indebtedness as having been paid.
21. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Beneficiary as a matter of right and without notice
to Grantor, unless otherwise required by applicable law, and without regard to
the adequacy or inadequacy of the Trust Property or any other collateral as
security for the Indebtedness and Obligations or the interest of Grantor
therein, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers or other manager of the Trust Property, without
requiring the posting of a surety bond and without reference to the adequacy or
inadequacy of the value of the Trust Property or the solvency or insolvency of
Grantor or any other party obligated for payment of all or any part of the
Indebtedness, and whether or not waste has occurred with respect to the Trust
Property. Grantor hereby irrevocably consents to such appointment and waives
notice of any application therefor (except as may be required by law). Any such
receiver or receivers or other manager shall have all the usual powers and
duties of receivers in like or similar cases and all the powers and duties of
Beneficiary in case of entry as provided in this Deed of Trust, including,
without limitation and to the extent permitted by law, the right to enter into
leases of all or any part of the Trust Property, and shall continue as such and
exercise all such powers until the date of confirmation of sale of the Trust
Property unless such receivership is sooner terminated.
22. Extension, Release, etc. (a) Without affecting the encumbrance
or charge of this Deed of Trust upon any portion of the Trust Property not then
or theretofore released as security for the full amount of the Indebtedness,
Beneficiary may, from time to time and without notice, agree to (i) release any
person liable for the Indebtedness, (ii) extend the maturity or alter any of the
terms of the Indebtedness or any guaranty thereof, (iii) grant other
indulgences, (iv) release or reconvey, or cause to be released or reconveyed at
any time at Beneficiary's option any parcel, portion or all of the Trust
Property, (v) take or release any other or additional security for any
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obligation herein mentioned, or (vi) make compositions or other arrangements
with debtors in relation thereto. If at any time this Deed of Trust shall secure
less than all of the principal amount of the Indebtedness, it is expressly
agreed that any repayments of the principal amount of the Indebtedness shall not
reduce the amount of the encumbrance of this Deed of Trust until the encumbrance
amount shall equal the principal amount of the Indebtedness outstanding.
(b) No recovery of any judgment by Beneficiary and no levy of an
execution under any judgment upon the Trust Property or upon any other property
of Grantor shall affect the encumbrance of this Deed of Trust or any liens,
rights, powers or remedies of Beneficiary or Trustee hereunder, and such liens,
rights, powers and remedies shall continue unimpaired.
(c) If Beneficiary shall have the right to foreclose this Deed of
Trust or to direct the Trustee to exercise its power of sale, Grantor authorizes
Beneficiary at its option to foreclose the lien of this Deed of Trust (or direct
the Trustee to sell the Trust Property, as the case may be) subject to the
rights of any tenants of the Trust Property. The failure to make any such
tenants parties defendant to any such foreclosure proceeding and to foreclose
their rights, or to provide notice to such tenants as required in any statutory
procedure governing a sale of the Trust Property by Trustee, or to terminate
such tenant's rights in such sale will not be asserted by Grantor as a defense
to any proceeding instituted by Beneficiary to collect the Indebtedness or to
foreclose this Deed of Trust.
(d) Unless expressly provided otherwise, in the event that
Beneficiary's interest in this Deed of Trust and title to the Trust Property or
any estate therein shall become vested in the same person or entity, this Deed
of Trust shall not merge in such title but shall continue as a valid charge on
the Trust Property for the amount secured hereby.
23. Security Agreement under Uniform Commercial Code. (a) It is the
intention of the parties hereto that this Deed of Trust shall constitute a
Security Agreement within the meaning of the Uniform Commercial Code (the
"Code") of the State in which the Trust Property is located, and Grantor hereby
grants a security interest in all of the personal property of Grantor described
in the Granting Clauses of this Deed of Trust. If an Event of Default shall
occur under this Deed of Trust, then in addition to having any other right or
remedy available at law or in equity, Beneficiary shall have the option of
either (i) proceeding under the Code and exercising such rights and remedies as
may be provided to a secured party by the Code with respect to all or any
portion of the Trust Property which is personal property (including, without
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limitation, taking possession of and selling such property) or (ii) treating
such property as real property and proceeding with respect to both the real and
personal property constituting the Trust Property in accordance with
Beneficiary's rights, powers and remedies with respect to the real property (in
which event the default provisions of the Code shall not apply). If Beneficiary
shall elect to proceed under the Code, then five days' notice of sale of the
personal property shall be deemed reasonable notice and the reasonable expenses
of retaking, holding, preparing for sale, selling and the like incurred by
Beneficiary shall include, but not be limited to, reasonable attorneys' fees and
legal expenses. At Beneficiary's request, during the continuance of an Event of
Default, Grantor shall assemble the personal property and make it available to
Beneficiary at a place designated by Beneficiary which is reasonably convenient
to both parties.
(b) Grantor and Beneficiary agree, to the extent permitted by law,
that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this Deed of
Trust upon recording or registration in the real estate records of the proper
office shall constitute a financing statement filed as a "fixture filing" within
the meaning of Sections 9-313 and 9-402 of the Code; (iii) Grantor is the record
owner of the Real Estate; and (iv) the addresses of Grantor and Beneficiary are
as set forth on the first page of this Deed of Trust.
(c) Grantor, upon request by Beneficiary from time to time, shall
execute, acknowledge and deliver to Beneficiary one or more separate security
agreements, in form satisfactory to Beneficiary in its reasonable discretion,
covering all or any part of the Trust Property and will further execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any financing statement, affidavit, continuation statement or certificate or
other document as Beneficiary may request in order to perfect, preserve,
maintain, continue or extend the security interest under and the priority of
this Deed of Trust and such security instrument. Grantor further agrees to pay
to Beneficiary on demand all reasonable costs and expenses incurred by
Beneficiary in connection with the preparation, execution, recording, filing and
refiling of any such document and all reasonable costs and expenses of any
record searches for financing statements Beneficiary shall reasonably require.
If Grantor shall fail to furnish any financing or continuation statement within
10 days after request by Beneficiary, then pursuant to the provisions of the
Code, Grantor hereby authorizes Beneficiary, without the signature of Grantor,
to execute and file any such financing and continuation statements. The filing
of any financing or continuation statements in the records relating to personal
property or chattels shall not be construed as in any way impairing the right of
Beneficiary to proceed against any personal property encumbered by this Deed of
Trust as real property, as set forth above.
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24. Assignment of Rents. Grantor hereby absolutely and
unconditionally assigns, transfers, conveys and sets over to Beneficiary, the
Rents as further security for the payment of the Indebtedness and performance of
the Obligations, and Grantor grants to Beneficiary the night to enter the Trust
Property for the purpose of collecting the same and to let the Trust Property or
any part thereof and to apply the Rents on account of the Indebtedness. The
foregoing assignment and grant is present and absolute and shall continue in
effect until the Indebtedness is paid in full, but Beneficiary and Trustee
hereby waive the right to enter the Trust Property for the purpose of collecting
the Rents, letting the Trust Property or any part thereof or applying the Rents
and Grantor shall be entitled to collect, receive, use and retain the Rents
until the occurrence of an Event of Default under this Deed of Trust; such right
of Grantor to collect, receive, use and retain the Rents may be revoked by
Beneficiary upon the occurrence of any Event of Default under this Deed of Trust
by giving not less than five days' written notice of such revocation to Grantor;
in the event such notice is given, Grantor shall pay over to Beneficiary, or to
any receiver appointed to collect the Rents, any lease security deposits, and
shall pay monthly in advance to Beneficiary, or to any such receiver, the fair
and reasonable rental value as determined by Beneficiary for the use and
occupancy of the Trust Property or of such part thereof as may be in the
possession of Grantor or any affiliate of Grantor, and upon default in any such
payment Grantor and any such affiliate will vacate and surrender the possession
of the Trust Property to Beneficiary or to such receiver, and in default thereof
may be evicted by summary proceedings or otherwise. Grantor shall not accept
prepayments of installments of Rent to become due for a period of more than one
month in advance (except for security deposits and estimated payments of
percentage rent, if any).
25. Trust Funds. All lease security deposits of the Real Estate
shall be treated as trust funds not to be commingled with any other funds of
Grantor. Within 10 days after request by Beneficiary, Grantor shall furnish
Beneficiary satisfactory evidence of compliance with this subsection, together
with a statement of all lease security deposits by lessees and copies of all
Leases not previously delivered to Beneficiary under which such security
deposits are held, which statement shall be certified by Grantor.
26. Additional Rights. The holder of any subordinate lien or
subordinate deed of trust on the Trust Property shall have no right to terminate
any Lease whether or not such Lease is subordinate to this Deed of Trust nor
shall any holder of any subordinate lien or subordinate deed of trust join any
tenant under any Lease in any trustee's sale or action to foreclose the lien or
modify, interfere with, disturb or terminate the rights of any tenant under any
Lease. By recordation of this
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Deed of Trust all subordinate lienholders and the trustees and beneficiaries
under subordinate deeds of trust are subject to and notified of this provision,
and any action taken by any such lienholder or trustee or beneficiary contrary
to this provision shall be null and void. Upon the occurrence of any Event of
Default, Beneficiary may, in its sole discretion and without regard to the
adequacy of its security under this Deed of Trust, apply all or any part of any
amounts on deposit with Beneficiary under this Deed of Trust against all or any
part of the Indebtedness. Any such application shall not be construed to cure or
waive any Default or Event of Default or invalidate any act taken by Beneficiary
on account of such Default or Event of Default.
27. Changes in Method of Taxation. In the event of the passage after
the date hereof of any law of any Governmental Authority deducting from the
value of the Premises for the purposes of taxation any lien or deed of trust
thereon, or changing in any way the laws for the taxation of mortgages or deeds
of trust or debts secured thereby for federal, state or local purposes, or the
manner of collection of any such taxes, and imposing a tax, either directly or
indirectly, on mortgages or deeds of trust or debts secured thereby, the holder
of this Deed of Trust shall have the right to declare the Indebtedness due on a
date to be specified by not less than 30 days' written notice to be given to
Grantor unless within such 30-day period Grantor shall assume as an Obligation
hereunder the payment of any tax so imposed until full payment of the
Indebtedness and such assumption shall be permitted by law.
28. Notices. All notices, requests, demands and other communications
hereunder shall be deemed to have been sufficiently given or served when served
in the same manner as set forth for notices in the Credit Agreement. The
Trustee's address for notices shall be the Trustee's address given on the first
page of this Deed of Trust.
29. No Oral Modification. This Deed of Trust may not be changed or
terminated orally. Any agreement made by Grantor and Beneficiary after the date
of this Deed of Trust relating to this Deed of Trust shall be superior to the
rights of the holder of any intervening or subordinate deed of trust, lien or
encumbrance. Trustee's execution of any written agreement between Grantor and
Beneficiary shall not be required for the effectiveness thereof as between
Grantor and Beneficiary.
30. Partial Invalidity. In the event any one or more of the
provisions contained in this Deed of Trust shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary
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anything contained in this Deed of Trust or in any provisions of the
Indebtedness or Loan Documents, the obligations of Grantor and of any other
obligor under the Indebtedness or Loan Documents shall be subject to the
limitation that Beneficiary shall not charge, take or receive, nor shall Grantor
or any other obligor be obligated to pay to Beneficiary, any amounts
constituting interest in excess of the maximum rate permitted by law to be
charged by Beneficiary.
31. Grantor's Waiver of Rights. To the fullest extent permitted by
law, Grantor waives the benefit of all laws now existing or that may
subsequently be enacted providing for (i) any appraisement before sale of any
portion of the Trust Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Trust Property from attachment, levy or sale under execution or
exemption from civil process. To the full extent Grantor may do so, Grantor
agrees that Grantor will not at any time insist upon, plead, claim or take the
benefit or advantage of any law now or hereafter in force providing for any
appraisement, valuation, stay, exemption, extension or redemption, or requiring
foreclosure of this Deed of Trust before exercising any other remedy granted
hereunder and Grantor, for Grantor and its successors and assigns, and for any
and all persons ever claiming any interest in the Trust Property, to the extent
permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of the secured indebtedness and marshalling in the event
of exercise by Trustee or Beneficiary of the power of sale or other rights
hereby created.
32. Remedies Not Exclusive. Beneficiary and Trustee shall be
entitled to enforce payment of the Indebtedness and performance of the
Obligations and to exercise all rights and powers under this Deed of Trust or
under any of the other Loan Documents or other agreement or any laws now or
hereafter in force, notwithstanding some or all of the Indebtedness and
Obligations may now or hereafter be otherwise secured, whether by deed of trust,
mortgage, security agreement, pledge, lien, assignment or otherwise. Neither the
acceptance of this Deed of Trust nor its enforcement, shall prejudice or in any
manner affect Beneficiary's or Trustee's right to realize upon or enforce any
other security now or hereafter held by Beneficiary or Trustee, it being agreed
that Beneficiary and Trustee shall be entitled to enforce this Deed of Trust and
any other security now or hereafter held by Beneficiary or Trustee in such order
and manner as Beneficiary may determine in its absolute discretion. No remedy
herein conferred upon or reserved to Trustee or Beneficiary is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each
shall be cumulative and shall be in addition to every other remedy given
hereunder or now
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or hereafter existing at law or in equity or by statute. Every power or remedy
given by any of the Loan Documents to Beneficiary or Trustee or to which either
may otherwise be entitled, may be exercised, concurrently or independently, from
time to time and as often as may be deemed expedient by Beneficiary or Trustee,
as the case may be. In no event shall Beneficiary or Trustee, in the exercise of
the remedies provided in this Deed of Trust (including, without limitation, in
connection with the assignment of Rents, or the appointment of a receiver and
the entry of such receiver on to all or any part of the Trust Property), be
deemed a "mortgagee in possession," and neither Beneficiary nor Trustee shall in
any way be made liable for any act, either of commission or omission, in
connection with the exercise of such remedies.
33. Multiple Security. If (a) the Premises shall consist of one or
more parcels, whether or not contiguous and whether or not located in the same
county, or (b) in addition to this Deed of Trust, Beneficiary shall now or
hereafter hold or be the beneficiary of one or more additional mortgages, liens,
deeds of trust or other security (directly or indirectly) for the Indebtedness
upon other property in the State in which the Premises are located (whether or
not such property is owned by Grantor or by others) or (c) both the
circumstances described in clauses (a) and (b) shall be true, then to the
fullest extent permitted by law, Beneficiary may, at its election, commence or
consolidate in a single trustee's sale or foreclosure action all trustee's sale
or foreclosure proceedings against all such collateral securing the Indebtedness
(including the Trust Property), which action may be brought or consolidated in
the courts of, or sale conducted in, any county in which any of such collateral
is located. Grantor acknowledges that the right to maintain a consolidated
trustee's sale or foreclosure action is a specific inducement to Beneficiary to
extend the Indebtedness, and Grantor expressly and irrevocably waives any
objections to the commencement or consolidation of the foreclosure proceedings
in a single action and any objections to the laying of venue or based on the
grounds of forum non conveniens which it may now or hereafter have. Grantor
further agrees that if Trustee or Beneficiary shall be prosecuting one or more
foreclosure or other proceedings against a portion of the Trust Property or
against any collateral other than the Trust Property, which collateral directly
or indirectly secures the Indebtedness, or if Beneficiary shall have obtained a
judgment of foreclosure and sale or similar judgment against such collateral
(or, in the case of a trustee's sale, shall have met the statutory requirements
therefor with respect to such collateral), then, whether or not such proceedings
are being maintained or judgments were obtained in or outside the State in which
the Premises are located, Beneficiary may commence or continue any trustee's
sale or foreclosure proceedings and exercise its other remedies granted in this
Deed of Trust against all or any part of the Trust Property and Grantor waives
any objections to the commencement or continuation of a foreclosure of this Deed
of Trust or exercise of any other remedies hereunder based on
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such other proceedings or judgments, and waives any right to seek to dismiss,
stay, remove, transfer or consolidate either any action under this Deed of Trust
or such other proceedings on such basis. The commencement or continuation of
proceedings to sell the Trust Property in a trustee's sale, to foreclose this
Deed of Trust or the exercise of any other rights hereunder or the recovery of
any judgment by Beneficiary or the occurrence of any sale by the Trustee in any
such proceedings shall not prejudice, limit or preclude Beneficiary's right to
commence or continue one or more trustee's sales, foreclosure or other
proceedings or obtain a judgment against (or, in the case of a trustee's sale,
to meet the statutory requirements for, any such sale of) any other collateral
(either in or outside the State in which the Real Estate is located) which
directly or indirectly secures the Indebtedness, and Grantor expressly waives
any objections to the commencement of, continuation of, or entry of a judgment
in such other sales or proceedings or exercise of any remedies in such sales or
proceedings based upon any action or judgment connected to this Deed of Trust,
and Grantor also waives any right to seek to dismiss, stay, remove, transfer or
consolidate either such other sales or proceedings or any sale or action under
this Deed of Trust on such basis. It is expressly understood and agreed that to
the fullest extent permitted by law, Beneficiary may, at its election, cause the
sale of all collateral which is the subject of a single trustee's sale or
foreclosure action at either a single sale or at multiple sales conducted
simultaneously and take such other measures as are appropriate in order to
effect the agreement of the parties to dispose of and administer all collateral
securing the Indebtedness (directly or indirectly) in the most economical and
least time-consuming manner.
34. Successors and Assigns. All covenants of Grantor contained in
this Deed of Trust are imposed solely and exclusively for the benefit of
Beneficiary and Trustee and their respective successors and assigns, and no
other person or entity shall have standing to require compliance with such
covenants or be deemed, under any circumstances, to be a beneficiary of such
covenants, any or all of which may be freely waived in whole or in part by
Beneficiary or Trustee at any time if in the sole discretion of either of them
such waiver is deemed advisable. All such covenants of Grantor shall run with
the land and bind Grantor, the successors and assigns of Grantor (and each of
them) and all subsequent owners, encumbrancers and tenants of the Trust
Property, and shall inure to the benefit of Beneficiary, Trustee and their
respective successors and assigns. Without limiting the generality of the
foregoing, any successor to Trustee appointed by Beneficiary shall succeed to
all rights of Trustee as if such successor had been originally named as Trustee
hereunder. The word "Grantor" shall be construed as if it read "Grantors"
whenever the sense of this Deed of Trust so requires and if there shall be more
than one Grantor, the obligations of the Grantors shall be joint and several.
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35. No Waivers, etc. Any failure by Beneficiary to insist upon the
strict performance by Grantor of any of the terms and provisions of this Deed of
Trust shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Beneficiary or Trustee, notwithstanding any such failure, shall have
the right thereafter to insist upon the strict performance by Grantor of any and
all of the terms and provisions of this Deed of Trust to be performed by
Grantor. Beneficiary may release, regardless of consideration and without the
necessity for any notice to or consent by the beneficiary of any subordinate
deed of trust or the holder of any subordinate lien on the Trust Property, any
part of the security held for the obligations secured by this Deed of Trust
without, as to the remainder of the security, in anywise impairing or affecting
this Deed of Trust or the priority of this Deed of Trust over any subordinate
lien or deed of trust.
36. Governing Law, etc. This Deed of Trust shall be governed by and
construed in accordance with the laws of the State in which the Premises are
located, except that Grantor expressly acknowledges that by its terms the Credit
Agreement shall be governed and construed in accordance with the laws of the
State of New York, without regard to principles of conflict of law, and for
purposes of consistency, Grantor agrees that in any in personam proceeding
related to this Deed of Trust the rights of the parties to this Deed of Trust
shall also be governed by and construed in accordance with the laws of the State
of New York governing contracts made and to be performed in that State, without
regard to principles of conflict of law.
37. Waiver of Trial by Jury. Grantor, Trustee and Beneficiary each
hereby irrevocably and unconditionally waive trial by jury in any action, claim,
suit or proceeding relating to this Deed of Trust and for any counterclaim
brought therein.
38. Certain Definitions. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Deed of Trust shall be used interchangeably in singular or plural form and
the word "Grantor" shall mean "each Grantor or any subsequent owner or owners of
the Trust Property or any part thereof or interest therein," the word
"Beneficiary" shall mean "Beneficiary or any successor Administrative Agent,"
the word "Trustee" shall mean "Trustee and any successor trustee hereunder," the
word "Notes" shall mean "the notes that may from time to time be given pursuant
to the terms of the Credit Agreement or any other evidence of indebtedness
secured by this Deed of Trust," the word "person" shall include any individual,
corporation, partnership, trust, unincorporated association, government,
governmental authority, or other entity, and the words "Trust Property" shall
include any portion of the Trust Property or interest therein. Whenever the
context may require, any pronouns used herein shall include the corresponding
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masculine, feminine or neuter forms, and the singular form of nouns and pronouns
shall include the plural and vice versa. The captions in this Deed of Trust are
for convenience of reference only and in no way limit or amplify the provisions
hereof.
39. Reconveyance of Deed Of Trust. Upon payment in full of the
Indebtedness, the termination of all Commitments under the Credit Agreement
secured hereby and the compliance with the Obligations then required to be
complied with, Beneficiary shall release the encumbrance of this Deed of Trust.
If any of the Trust Property shall be sold, transferred or otherwise disposed of
by Grantor in a transaction expressly permitted by the Credit Agreement, then
Beneficiary shall execute and deliver, and shall cause Trustee to execute and
deliver to Grantor (at the sole cost and expense of Grantor) all releases,
reconveyances or other documents reasonably necessary or desirable for the
release of such Trust Property from the encumbrance of this Deed of Trust.
40. Conflict With Credit Agreement. In the event of any conflict or
inconsistency between the terms and provisions of this Deed of Trust and the
terms and provisions of the Credit Agreement, the terms and provisions of the
Credit Agreement shall govern, other than with respect to the Section of this
Deed of Trust captioned "Governing Law, etc.". By their execution of the Credit
Agreement, each Lender hereby agrees that it shall not have the right to
institute any suit for enforcement of Notes or any other Indebtedness secured by
this Deed of Trust or any other Security Document, if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would, under
applicable law, result in the surrender, impairment, waiver or loss of the Lien
of this Deed of Trust or any other Security Document or impede or delay the
enforcement of the Lien of this Deed of Trust or any other Security Document.
41. Receipt of Copy. Grantor acknowledges that it has received a
true copy of this Deed of Trust.
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This Deed of Trust has been duly executed by Grantor as of the date
first above written.
Signed, sealed and TELEX COMMUNICATIONS, INC.
delivered in our
presence: By:
--------------------------
Name:
Title:
------------------------------
Name:
------------------------------
Name:
00
XXXXX XX XXXXXXXXX )
: ss.:
COUNTY OF DAKOTA )
On this 2nd day of February in the year 1998 before me,
____________________, a Notary Public of said State, duly commissioned and
sworn, personally appeared ________________, personally known to me (or proved
to me on the basis of satisfactory evidence __________________) to be the person
who executed the within instrument as president (or secretary) or on behalf of
the corporation therein and acknowledged to me that such corporation executed
the same.
In Witness Whereof, I have hereunto set my hand and affixed by
official seal the day and year in this certificate first above written.
------------------------
Notary Public
[Notarial Stamp]
37
CERTIFICATION PURSUANT TO CALIFORNIA GOVERNMENT CODE 27361.7:
I certify under penalty of perjury that the notary seal on the document to which
this statement is attached reads as follows:
Name of Notary: __________________________________________
Date Commission Expires: _________________________________
County where qualification
or bond is filed: ________________________________________
Place of execution: ______________________________________
Signature: _______________________________________________
Print name:
38
SCHEDULE A
XXX 0 XX XXXXX XX. 00000, XX THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1055 PAGES 37 TO 39 INCLUSIVE
OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT AN UNDIVIDED ONE-HALF OF ALL OIL, GAS, MINERALS AND HYDROCARBON
SUBSTANCES IN AND UNDER SAID LAND, AS RESERVED IN DEED RECORDED IN BOOK 18773
PAGE 102, OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED ONE-HALF OF ALL OIL, GAS, MINERALS AND HYDROCARBON
SUBSTANCES UNDER SAID LAND, AS RESERVED BY XXXXXXXX X. XXXXXX, A MARRIED WOMAN,
IN DEED RECORDED JULY 7, 1955 IN BOOK 48272 PAGE 384, OFFICIAL RECORDS.
