COLLATERAL TRUST AGREEMENT
dated as of April 29, 1997
between
ROSE'S STORES, INC.,
and
X.X. XXXXXXX & ASSOCIATES, INC.,
as Trustee
PAGE
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS . . . . . . . . . . . . . . . . .- 4 -
SECTION 1.01 Certain Defined Terms. . . . . . . . . .- 4 -
SECTION 1.02 Certain References . . . . . . . . . . .- 8 -
ARTICLE 2. ACCEPTANCE OF TRUST; EXECUTION AND DELIVERY
OF TRADE VENDOR DOCUMENTS AND
INTERCREDITOR AGREEMENT . . . . . . . . . . .- 9 -
SECTION 2.01 Acceptance of Trust. . . . . . . . . . .- 9 -
SECTION 2.02 Execution and Delivery of Trade
Vendor Documents . . . . . . . . . . . .- 9 -
SECTION 2.03 Execution and Delivery of
Intercreditor Agreement. . . . . . . . .- 9 -
ARTICLE 3. INTENTIONALLY OMITTED . . . . . . . . . . . .- 9 -
ARTICLE 4. DEFAULT NOTICE; REMEDIES. . . . . . . . . . .- 9 -
SECTION 4.01 Default Notice . . . . . . . . . . . . .- 9 -
SECTION 4.02 Action Upon Receipt of Default Notice. .- 9 -
SECTION 4.03 Remedies Generally . . . . . . . . . . - 10 -
SECTION 4.04 Appointment of a Receiver. . . . . . . - 11 -
SECTION 4.05 Exercise of Powers . . . . . . . . . . - 11 -
SECTION 4.06 Remedies Not Exclusive . . . . . . . . - 11 -
SECTION 4.07 Limitation on Rights and Remedies
in Respect of Security . . . . . . . . - 12 -
SECTION 4.08 Right to Initiate Judicial
Proceedings, Etc.. . . . . . . . . . . - 12 -
SECTION 4.09 Limitation on Trustee's Duties in
Respect of Security. . . . . . . . . . - 12 -
SECTION 4.10 Limitation by Law. . . . . . . . . . . - 13 -
ARTICLE 5. DIRECTION BY TRADE COMMITTEE. . . . . . . . - 13 -
SECTION 5.01 Direction by Trade Committee . . . . . - 13 -
ARTICLE 6. INTENTIONALLY OMITTED . . . . . . . . . . . - 14 -
ARTICLE 7. NOTICE TO TRADE VENDORS . . . . . . . . . . - 14 -
SECTION 7.01 Notice to Trade Vendors . . . . . . . . - 14 -
ARTICLE 8. PROCEEDS ACCOUNT. . . . . . . . . . . . . . - 15 -
SECTION 8.01 The Proceeds Account . . . . . . . . . - 15 -
SECTION 8.02 Control of Proceeds Account. . . . . . - 15 -
SECTION 8.03 Investment of Funds Deposited
in Proceeds Account. . . . . . . . . . - 15 -
ARTICLE 9. APPLICATION OF PROCEEDS . . . . . . . . . . - 16 -
SECTION 9.01 Application of Proceeds. . . . . . . . - 16 -
SECTION 9.02 Distribution of Proceeds . . . . . . . - 16 -
ARTICLE 10. ABSOLUTE RIGHTS OF TRADE VENDORS. . . . . . - 17 -
SECTION 10.01 Absolute Rights of Trade Vendors . . . - 17 -
ARTICLE 11. AGREEMENTS WITH THE TRUSTEE
AND THE MORTGAGE TRUSTEE. . . . . . . . . . - 18 -
SECTION 11.01 (a) Information as to Trade Vendors . - 18 -
(b) Confidentiality . . . . . . . . . - 18 -
SECTION 11.02 Compensation and Expenses. . . . . . . - 19 -
SECTION 11.03 Stamp and Other Similar Taxes. . . . . - 19 -
SECTION 11.04 Filing Fees, Excise Taxes, Etc.. . . . - 19 -
SECTION 11.05 Indemnification. . . . . . . . . . . . - 20 -
SECTION 11.06 Further Assurances . . . . . . . . . . - 20 -
SECTION 11.07 Notification of Event of Default
Under Loan Agreement . . . . . . . . . - 21 -
ARTICLE 12. THE TRUSTEE . . . . . . . . . . . . . . . . - 22 -
SECTION 12.01 Exculpatory Provisions . . . . . . . . - 22 -
SECTION 12.02 Delegation of Duties . . . . . . . . . - 22 -
SECTION 12.03 Reliance by Trustee. . . . . . . . . . - 22 -
SECTION 12.04 Limitations on Duties of the Trustee . - 23 -
SECTION 12.05 Moneys to Be Held in Trust . . . . . . - 24 -
SECTION 12.06 Resignation and Removal of Trustee . . - 24 -
SECTION 12.07 Trustee Appointed Attorney-in-Fact . . - 25 -
SECTION 12.08 Reasonable Care. . . . . . . . . . . . - 26 -
ARTICLE 13. MISCELLANEOUS . . . . . . . . . . . . . . . - 26 -
SECTION 13.01 Amendment or Waiver. . . . . . . . . . - 26 -
SECTION 13.02 Intercreditor and
Subordination Agreements . . . . . . . - 26 -
SECTION 13.03 Notices. . . . . . . . . . . . . . . . - 26 -
SECTION 13.04 Headings . . . . . . . . . . . . . . . - 27 -
SECTION 13.05 Severability . . . . . . . . . . . . . - 27 -
SECTION 13.06 Claims Against Trustee . . . . . . . . - 27 -
SECTION 13.07 Binding Effect . . . . . . . . . . . . - 28 -
SECTION 13.08 Governing Law. . . . . . . . . . . . . - 28 -
SECTION 13.09 Counterparts . . . . . . . . . . . . . - 28 -
SECTION 13.10 Termination. . . . . . . . . . . . . . - 28 -
PAGE
EXHIBITS
EXHIBIT A Default Notice
EXHIBIT B Individual Trade Vendor Notice
EXHIBIT C Public Trade Vendor Notice
PAGE
COLLATERAL TRUST AGREEMENT
This COLLATERAL TRUST AGREEMENT (as amended, amended and
restated, supplemented or otherwise modified from time to time in
accordance with the terms hereof, this "Agreement") is dated as of
April 29, 1997 and is entered into between Rose's Stores, Inc., a
Delaware corporation, with an xxxxxx xx X.X. Xxxxxxx #0 Xxxxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Company") and X.X. Xxxxxxx
& Associates, Inc., a New York corporation, with an office at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as trustee (the
"Trustee"). This Agreement amends and restates in its entirety the
Letter of Credit and Mortgage Trust Agreement between the Company
and the Trustee, dated May 8, 1995, as amended. Initially
capitalized terms used and not otherwise defined herein shall have
the meanings set forth in Article 1 hereof.
RECITALS
A. On September 5, 1993 the Company filed a voluntary
petition for relief under Chapter 11 of the Bankruptcy Code with
the United States Bankruptcy Court for the Eastern District of
North Carolina (the "Bankruptcy Court").
B. On December 14, 1994 the Bankruptcy Court entered
an order confirming the Company's First Amended Joint Plan of
Reorganization dated October 4, 1994 (as so confirmed, and as
modified and restated by the Company's Modified and Restated First
Amended Joint Plan of Reorganization, dated April 19, 1995 which
was confirmed pursuant to an order of the Bankruptcy Court dated
April 24, 1995, the "Plan").
C. On April 28, 1995 the Company entered into a
Revolving Credit Agreement with The First National Bank of Boston
("FNBB") and The CIT Group/Business Credit, Inc., as facility
agents, FNBB, as administrative agent, and the lending institutions
parties thereto, (as amended, amended and restated, supplemented
or otherwise modified from time to time, "FNBB Credit Agreement"),
pursuant to which such lenders made financial accommodations to the
Company to facilitate consummation of the Plan and provide working
capital to the Company.
D. On May 21, 1996, the Company, as Borrower, entered
into a Loan and Security Agreement with Foothill Capital
Corporation ("Foothill"), as Agent, PPM Financing, Inc. as Co-
Agent, and the financial institutions name therein, as Lenders (as
amended, amended and restated, supplemented or otherwise modified
from time to time the "Foothill Loan Agreement") pursuant to which
all indebtedness of the Company to FNBB and the other lenders under
the FNBB Credit Agreement was paid in full.
E. It is important to the success of the Company's
business that the Company's Trade Vendors extend terms to the
Company and deliver goods needed by the Company to successfully
operate its business.
F. To induce the Trade Vendors to continue to extend
terms to the Company and to continue to deliver to the Company the
goods it needed to successfully operate its business the Company,
as security for the Trade Obligations and the other Obligations,
(i) caused Foothill to cause the issuance of a standby letter of
credit, dated May 22, 1996 (as amended, amended and restated,
supplemented, renewed, replaced or otherwise modified from time to
time, the "Trade Vendor L/C"), in the face amount of $5,000,000 in
favor of the Trustee, as beneficiary, in trust for, and for the
benefit of, the Trade Vendors, which expires on April 29, 1997 and
(ii) granted to Xxxx X. Xxxxxxxx, as substitute trustee (the
"Mortgage Trustee"), for the benefit of the Trustee, as
beneficiary, the Second Deed of Trust, Assignment of Rents and
Security Agreement, dated as of May 8, 1995, in the maximum
principal amount of $15,000,000, with respect to all of the
interests of the Company in the Henderson Property, subject and
subordinate to the Senior Mortgage, dated May 21, 1996, granted by
the Company to Xxxxx X. Xxxxxxxxxxx, as trustee, for the benefit
of the Lenders under the Foothill Loan Agreement, (such Second Deed
of Trust granted for the benefit of the Trustee, as amended,
amended and restated, supplemented or otherwise modified from time
to time, the "Mortgage", as hereinafter further defined). The
Henderson Property is hereinafter sometimes referred to as the
"Mortgaged Property".
G. As further inducement to the Trade Vendors to
continue to extend terms to the Company and to continue to deliver
to the Company the goods it needs to operate its business, and in
lieu of the Trade Vendor L/C which expires on April 29, 1997, the
Company, as security for prompt payment and performance the Trade
Obligations and the other Obligations, has executed and delivered
to the Trustee the Security Agreements pursuant to which the
Company has granted to the Trustee, for the benefit of the Trade
Vendors, liens upon and security interests in certain of the
Company's personal property and fixtures as more fully described
in the Security Agreements (the "Collateral") subject and
subordinate to the liens of the Agent therein. The Collateral and
the Mortgaged Property are referred to collectively as the
"Security".
H. The rights and remedies of the Trustee in respect
of the Security Agreements, the Mortgage and the other Security
Documents are subject in all respects to the terms of the
Intercreditor Agreement, dated as of the date hereof, as amended,
amended and restated, supplemented or otherwise modified from time
to time, the "Intercreditor Agreement") and the Subordination
Agreement, dated as of May 21, 1996, as amended, amended and
restated, supplemented or otherwise modified from time to time, the
"Subordination Agreement") between Foothill, as Agent for itself
and the other Lenders under the Loan Agreement, and the Trustee,
respectively.
I. This Agreement is intended to establish a trust
under which (i) the Security Documents, (ii) all cash and non-cash
proceeds of the Security (the "Proceeds") and (iii) the Proceeds
Account, (the right, title and interest of the Trustee in and to
the Security Documents, the Security, the Proceeds and the Proceeds
Account being herein collectively referred to as the "Trust
Estate") will be held by the Trustee in trust for, and for the
benefit of, the Trade Vendors who have not been paid in full for
goods heretofore delivered and hereafter delivered to the Company.
J. This Agreement is further intended to set forth the
terms and conditions upon which the Trust Estate will be
administered by the Trustee, the rights and remedies of the Trade
Vendors with respect to the Trust Estate and certain other related
matters.
DECLARATION OF TRUST
NOW, THEREFORE, in order to induce the Trade Vendors to
deliver goods to the Company and to provide security for payment
of the obligations the Company has heretofore incurred and
hereafter incurs to the Trade Vendors in the amount of the unpaid
invoiced cost of goods delivered to the Company by the Trade
Vendors as shown from time to time on the books and records of the
Company (the "Trade Obligations"), and in consideration of the
premises and the mutual agreements set forth herein, the Company
hereby confirms that it has caused the Trade Vendor Documents to
be executed and delivered to the Trustee, and the Trustee does
hereby declare that it holds and will hold the Trade Vendor
Documents as trustee in trust under this Agreement, and the Company
does hereby consent thereto.
TO HAVE AND TO HOLD, the Trust Estate unto the Trustee
and its successors in trust under this Agreement and its assigns
and the assigns of its successors in trust forever or until
terminated in accordance with the terms hereof;
IN TRUST NEVERTHELESS, under and subject to the terms and
conditions set forth herein for the benefit of the Trade Vendors
and for the enforcement of the payment of the Trade Obligations,
and for the performance of and compliance with the covenants and
conditions of this Agreement, the Note, the Security Documents and
the Mortgage.
ARTICLE 1.
DEFINITIONS
SECTION 01 Certain Defined Terms. The following
terms shall have the following meanings as used herein (such
meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Agent" has the meaning set forth in the Foothill Loan
Agreement.
"Agreement" has the meaning set forth in the preamble
to this Agreement.
"Authorized Officer" means the Chairman, the President,
any Vice President, the Secretary or the Treasurer of a Person or
any other officer designated as an "Authorized Officer" by the
Board of Directors (or equivalent governing body) of such Person
and shall include, with respect to the Trade Committee, the counsel
to the Trade Committee.
"Bankruptcy Code" means Title 11 of the United States
Code, 11 U.S.C. Sections 101 et seq., as amended.
"Bankruptcy Court" has the meaning set forth in
Paragraph A of the Recitals to this Agreement.
"Business Day" means a day other than a Saturday, Sunday
or other day on which national banks are required or authorized by
law to close.
"Collateral" has the meaning set forth in Paragraph G
of the Recitals to this Agreement.
"Company" has the meaning set forth in the preamble to
this Agreement.
"Default Notice" has the meaning set forth in
Section 4.01.
"Event of Default" means an "Event of Default" under and
as defined in any of the Security Documents.
"FNBB" has the meaning set forth in Paragraph C of the
Recitals to this Agreement.
"FNBB Credit Agreement" has the meaning set forth in
Paragraph C of the Recitals to this Agreement.
"Foothill Loan Agreement" has the meaning set forth in
Paragraph D of the Recitals of this Agreement.
"General Security Agreement" means the General Security
Agreement, dated as of the date hereof, executed by the Company,
as debtor, in favor of Trustee, as secured party, as the same may
hereafter be amended, amended and restated, supplemented or
otherwise modified from time to time.
"Henderson Property" means the Company's warehouse
distribution center, corporate offices, data processing center and
graphics production center located in Henderson, North Carolina.
"Individual Trade Vendor Notice" has the meaning set
forth in Section 7.01.
"Intellectual Property Security Agreement" means the
Intellectual Property Security Agreement, dated as of the date
hereof, between the Company and the Trustee, as amended, amended
and restated, supplemented or otherwise modified from time to time.
"Intercreditor Agreement" has the meaning set forth in
Paragraph H of the Recitals to this Agreement.
"Intercreditor and Subordination Agreements" means,
collectively, the Intercreditor Agreement and the Subordination
Agreement.
"Lenders" has the meanings set forth in the Foothill
Loan Agreement.
"Mortgage" has the meaning set forth in Paragraph F of
the Recitals to this Agreement, as recorded in Book 749, at Page
499 with the Xxxxx County Registry of Deeds, as amended by the
First Amendment to Second Deed of Trust, Assignment of Rents and
Security Agreement, dated as of April 29, 1996, recorded on May 24,
1996 at Book 771, at Page 53 with the Xxxxx County Registry of
Deeds, as further amended by the Second Amendment to Second Deed
of Trsut and as amended, amended and restated, supplemented or
otherwise modified from time to time.
"Mortgaged Property" has the meaning set forth in
Paragraph F of the Recitals to this Agreement.
"Mortgage Trustee" has the meaning set forth in
Paragraph F of the Recitals to this Agreement.
"Note" means the Second Amended and Restated Trade Debt
Note, dated the date hereof, in the maximum principal amount of
$15,000,000 made by the Company to the Trustee.
"Obligations" means, at any time, all obligations,
liabilities or indebtedness, whether matured or unmatured, of the
Company evidenced or arising out of this Agreement, the Note or any
of the Security Documents, whether principal, interest, fees or
expenses, including without limitation, the Trade Obligations, the
fees and expenses of the Trustee and the Mortgage Trustee and the
expenses of the Trade Committee, including the fees and
disbursements of counsel to the Trustee, counsel to the Mortgage
Trustee and counsel to the Trade Committee and any indemnity
obligations of the Company to the Trustee, the Mortgage Trustee or
the Trade Committee.
"Permitted Investments" means (a) marketable securities
issued or directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality thereof having
maturities of not more than three months from the date of
acquisition, (b) time deposits and certificates of deposit of, or
money market or similar accounts with, any domestic commercial bank
of recognized standing having capital and surplus in excess of U.S.
$100,000,000 and a Xxxxx Bank Watch Rating of C or better, with
maturities of not more than three months from the date of
acquisition, (c) commercial paper rated at least A-1 or the
equivalent thereof by Standard & Poor's Corporation or at least P-
1 on the equivalent thereof by Xxxxx'x Investors Service, Inc. and
in each case maturing within three months after the date of
acquisition, (d) repurchase obligations with a term of not more
than thirty days for underlying securities of the types described
in clauses (a), (b) and (c) entered into with any bank meeting the
qualifications specified in clause (b) above or with a securities
dealer acceptable to the Trustee.
"Person" means an individual, a partnership, a
corporation, a business trust, a joint stock company, a limited
liability company, a trust, an unincorporated association, a joint
venture, a governmental entity or another entity of whatever
nature.
"Plan" has the meaning set forth in Paragraph B of the
Recitals to this Agreement.
"Proceeds" has the meaning set forth in Paragraph I of
the Recitals to this Agreement.
"Proceeds Account" has the meaning set forth in
Section 8.01.
"Public Trade Vendor Notice" has the meaning set forth
in Section 7.01.
"Second Amendment to Deed of Trust" means the Second
Amendment to Deed of Trust, Assignment of Rents and Security
Agreement, dated as of the date hereof, by and among the Company,
the Mortgage Trustee and the Trustee, as Beneficiary.
"Second Amendment to Subordination Agreement" means the
Second Amendment, dated the date hereof, to the Subordination
Agreement.
"Security" has the meaning set forth in Paragraph G of
the Recitals to this Agreement and includes all property and assets
of the Company, now existing or hereafter acquired, and all cash
and non-cash proceeds thereof, in respect of which any lien,
mortgage security interest or other encumbrance in favor of the
Trustee is granted or created under any, Security Document,
including, without limitation the Security Agreements and the
Mortgage.
"Security Agreements" means, collectively, the General
Security Agreement and the Intellectual Property Security
Agreement.
"Security Documents" means, collectively, the General
Security Agreement, the Intellectual Property Security Agreement,
the Mortgage, all UCC-1 financing statements now or hereafter
executed by the Company, as debtor, in favor of the Trustee or the
Mortgage Trustee, as secured party, and all other documents and
agreements at any time executed with or in favor of the Trustee or
the Mortgage Trustee as security for the Obligations, as the same
may now exist or may hereafter be amended, amended and restated,
supplemented or otherwise modified.
"Senior Headquarters Mortgage" means the Future Advance
Deed of Trust, Assignment of Rents and Security Agreement, dated
as of May 21, 1996, executed by the Company, as grantor, to Xxxxx
X. Xxxxxxxxxxx, as trustee for the benefit of the Banks (as defined
therein), as beneficiary, recorded on May 24, 1996 in Book 771, at
Page 93 in the Xxxxx County Registry of Deeds encumbering a portion
of the Mortgaged Property identified as Parcels 1 though 12 on
Exhibit "A" thereto.
"Senior Indebtedness" has the meaning set forth in the
Subordination Agreement.
"Senior Mortgage" means, collectively, the Senior
Headquarters Mortgage and the Senior Warehouse Mortgage.
"Senior Warehouse Mortgage" means the Future Advance
Deed of Trust, Assignment of Rents and Security Agreement, dated
as of May 21, 1996, executed by the Company, as grantor to Xxxxx
X. Xxxxxxxxxxx, as trustee, for the benefit of the Banks (as
defined therein), as beneficiary, recorded on May 24, 1996 in Book
771, at Page 131 encumbering a portion of the Mortgaged Property
identified as Parcel 13 on Exhibit "A" thereto in the Xxxxx County
Registry of Deeds.
"Subordination Agreement" has the meaning set forth in
Paragraph H of the Recitals to this Agreement.
"Trade Committee" means the Post-Effective Date Trade
Committee under and as defined in the Plan.
"Trade Obligations" has the meaning set forth in the
Declaration of Trust made in the Recitals to this Agreement.
"Trade Vendor" means trade vendors of the Company who
have extended or who hereafter extend terms to the Company for
goods delivered to the Company, other than on consignment.
"Trade Vendor Documents" means the Note, the Mortgage,
the Security Agreement, the Intellectual Property Security
Agreement and the other Security Documents.
"Trade Vendor Information" has the meaning set forth in
Section 11.01.
"Trade Vendor L/C" has the meaning set forth in
Paragraph F of the Recitals to this Agreement.
"Trade Vendor Payable Amount" has the meaning set forth
in Section 7.01.
"Trust Estate" has the meaning set forth in Paragraph G
of the Recitals to this Agreement.
"Trustee" has the meaning set forth in the preamble to
this Agreement.
SECTION 02 Certain References. The words "hereof",
"herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement and section, schedule
and exhibit references are to this Agreement unless otherwise
specified. References to Persons include their respective
permitted successors and assigns or, in the case of governmental
Persons, Persons succeeding to the relevant functions of such
Persons.
ARTICLE 2.
ACCEPTANCE OF TRUST; EXECUTION AND DELIVERY
OF TRADE VENDOR DOCUMENTS AND INTERCREDITOR AGREEMENT
SECTION 01 Acceptance of Trust. The Trustee, for
itself and its successors, hereby accepts the trust created by this
Agreement upon the terms and conditions hereof. Further, the
Trustee, for itself and its successors, does hereby declare that
it will hold the Trust Estate for the benefit of the Trade Vendors
upon the trusts herein set forth.
SECTION 02 Execution and Delivery of Trade Vendor
Documents. On or about the date thereof the Company has executed
in favor of and delivered to the Trustee, for the benefit of the
Trade Vendors, the Note, the General Security Agreement, the
Intellectual Property Security Agreement and the Second Amendment
to Deed of Trust.
SECTION 03 Execution and Delivery of Intercreditor
Agreement. On or about the date hereof, the Trustee has executed
and delivered to the Agent the Intercreditor Agreement in the form
approved by, and as directed, by the Trade Committee.
ARTICLE 3.
INTENTIONALLY OMITTED
ARTICLE 4.
DEFAULT NOTICE; REMEDIES
SECTION 01 Default Notice. If an Event of Default
shall have occurred, the Trade Committee shall have the right to
deliver to the Trustee at any time, at its option, an irrevocable
written notice ("Default Notice"), substantially in the form
attached hereto as Exhibit A, stating that an Event of Default has
occurred and directing the Trustee to take, and cause the Mortgage
Trustee to take, such action as therein requested by the Trade
Committee with respect to the Security Documents and the Security
(which action may include, without limitation, subject to the terms
and conditions of the Intercreditor and Subordination Agreements,
the institution of any remedies provided by any of the Security
Documents, by law or by this Agreement).
SECTION 02 Action Upon Receipt of Default Notice.
Upon receipt of a Default Notice (or at such later time as shall
be the first time when such action is not prohibited to be taken
by the Intercreditor Agreement or the Subordination Agreement),
the Trustee shall promptly take, and cause the Mortgage Trustee to
promptly take, such action as is requested by the Trade Committee
in such Default Notice or any notice supplemental thereto
authorized, or as the Trustee shall deem this necessary or
appropriate in its sole discretion, to collect the then unpaid
Obligations.
SECTION 03 Remedies Generally. (a) The Company
hereby irrevocably constitutes and appoints each of the Trustee
and the Mortgage Trustee and any officer or agent of either of them
with full power of substitution, as its true and lawful attorney-
in-fact with full power and authority in the name of the Company
or its own name, from time to time in the Trustee's and Mortgage
Trustee's discretion, after action by the Trustee and Mortgage
Trustee is not prohibited by the Intercreditor Agreement or the
Subordination Agreement, for the purpose of carrying out the terms
of the Security Documents, to take any and all appropriate action
and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes hereof and
thereof and, without limiting the generality of the foregoing,
hereby gives each of the Trustee and the Mortgage Trustee the power
and right on behalf of the Company, without notice to or assent by
the Company, to do (to the extent permitted under the Security
Documents) the following:
(i) to ask for, demand, xxx for, collect,
receive and give acquittance for any and all moneys due
or to become due upon or by virtue hereof and thereof,
(ii) to receive, take, endorse, assign and
deliver any and all checks, notes, drafts, acceptances,
documents and other negotiable and non-negotiable
instruments and chattel paper taken or received by the
Trustee or Mortgage Trustee in connection herewith and
therewith,
(iii) to commence, file, prosecute, defend,
settle, compromise or adjust any claim, suit, action or
proceeding with respect hereto and thereto or in
connection herewith and therewith,
(iv) to sell, transfer, assign, lease or rent
all or any portion of or otherwise deal in or with the
Security or any part thereof as fully and effectually as
if the Trustee or the Mortgage Trustee, as the case may
be, was the absolute owner thereof,
(v) to make demands, give consents and
releases or partial releases, and to exercise any other
rights contemplated or permitted by the Security
Documents, and
(vi) to do, at its option and at the expense
and for the account of the Company, at any time and from
time to time, all acts and things which it deems
necessary to protect or preserve the Security and to
realize upon the Security.
SECTION 04 Appointment of a Receiver. If a receiver
of the Mortgaged Property or other Security shall be appointed in
judicial proceedings, the Mortgage Trustee or the Trustee, as the
case may be, may be appointed as such receiver. Notwithstanding
the appointment of a receiver, the Mortgage Trustee or the Trustee,
as the case may be, shall be entitled to retain possession and
