THE MAXIMUM AGGREGATE AMOUNT OF PRINCIPAL TO BE SECURED AT ANY
ONE TIME UNDER THIS DEED OF TRUST IS $4,172,416.00.
DEED OF TRUST
from
AMERICAN BUILDINGS COMPANY, Grantor
to
FIDELITY NATIONAL TITLE INSURANCE COMPANY, Trustee
for the use and
benefit of
CANADIAN IMPERIAL BANK OF COMMERCE, Beneficiary
DATED AS OF DECEMBER 4, 1997
After recording, please return to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
a partnership which includes
professional corporations
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx X. Xxxx, Esq.
[Virginia - Fee]
DEED OF TRUST
-------------
THIS DEED OF TRUST, dated as of December 4, 1997 is made by AMERICAN
BUILDINGS COMPANY, a Delaware corporation ("Grantor"), whose address is 0000
Xxxxx Xxxxx Xxxx, Xxxxxx, Xxxxxxx 00000, to Fidelity National Title Insurance
Company of New York, a New York corporation having an office at 0000X Xxxxxxxx
Xxxxxxx, Xxxx Xxxxx, Xxxxxxxx 00000 ("Trustee"), for the benefit and use of
CANADIAN IMPERIAL BANK OF COMMERCE, as administrative agent for the Lenders
referred to below (in such capacity, "Beneficiary"), whose address is 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. 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.
Background
----------
X. Xxxxxxx has entered into the Credit Agreement dated as of December
4, 1997 (as the same may be amended, supplemented or otherwise modified from
time to time, the "Credit Agreement") with the several banks and other financial
institutions from time to time parties thereto (the "Lenders") and Beneficiary.
Capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Credit Agreement. References in this Deed of Trust to
the "Default Rate" shall mean the interest rate provided for in Section 2.12(c)
of the Credit Agreement for Base Rate Loans that are overdue.
X. Xxxxxxx is the owner of the parcel(s) of real property described on
Exhibit A attached (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 and conditions of the Credit Agreement, the
Beneficiary and the Lenders are and will be making Loans to the Grantor and
providing Letters of Credit on behalf of the Grantor.
D. The obligations of the Lenders to make the Loans and to issue
Letters of Credit are conditioned upon, among other things, the execution and
delivery by Grantor of this Deed of Trust.
Granting Clauses
----------------
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Xxxxxxx agrees that to secure:
(a) payment of the Obligations; and
(b) the performance and observance of each obligation, term, covenant
and
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condition to be performed or observed by Grantor (the
"Performance Obligations") under, in connection with or pursuant
to the provisions of the Credit Agreement, any Notes, the Letters
of Credit, the Guarantee and Collateral Agreement, this Deed of
Trust and any of the other Security Documents or any of the other
Loan Documents;
GRANTOR HEREBY GRANTS TO TRUSTEE A LIEN UPON AND A SECURITY INTEREST IN, AND
HEREBY CONVEYS, GRANTS, ASSIGNS, TRANSFERS AND SETS OVER TO BENEFICIARY AND
TRUSTEE WITH DEED OF TRUST COVENANTS:
(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 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,
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 whether
stored at the Real Estate or offsite, and, in each such case, without any
further
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Deed of Trust, conveyance, assignment or other act by Xxxxxxx;
(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 unearned premiums under insurance policies now or subsequently
obtained by Grantor relating to the Real Estate or Equipment and Grantor's
interest in and to all proceeds of any such insurance policies (including
title insurance policies) including the right to collect and receive such
proceeds, subject to the provisions relating to insurance generally set
forth below; and 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;
(H) 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 (H) 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
purposes set forth, until the Obligations are fully paid and the Performance
Obligations fully performed.
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, or a valid leasehold interest
in, its other Trust Property, subject only to the matters that are set forth in
Schedule B of the title insurance policy being issued to Grantee to insure the
lien of this Deed of Trust and Section 7.3 of the Credit Agreement (the
"Permitted Exceptions") and Grantor shall warrant, defend and preserve such
title and the lien of the Deed of Trust thereon against all claims of all
persons and entities. Subject only to the Permitted Exceptions, Grantor further
warrants that it has the right to encumber the Trust Property under this Deed of
Trust.
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2. Payment of Indebtedness. Grantor shall pay the Obligations at the
times and places and in the manner specified in the Credit Agreement and shall
perform all the Performance Obligations.
3. Restrictions on Liens and Encumbrances. Except for the lien of this
Deed of Trust, and except as expressly permitted under the Credit Agreement,
Grantor shall not further deed, nor otherwise encumber the Trust Property nor
create any lien, charge or encumbrance on the Trust Property, or any part
thereof.
4. Due on Sale and Other Transfer Restrictions. Except as 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.
5. Insurance. (a) Grantor will maintain, with financially sound and
reputable companies, insurance policies (i) insuring the Inventory, Equipment
and Vehicles against loss by fire, explosion, theft and such other casualties as
may be reasonably satisfactory to Beneficiary and (ii) insuring such Grantor,
Beneficiary and the Lenders against liability for personal injury and property
damage relating to such Inventory, Equipment and Vehicles, such policies to be
in such form and amounts and having such coverage as may be reasonably
satisfactory to Beneficiary and the Lenders.
(b) All such insurance shall (i) provide that no cancellation, material
reduction in amount or material reduction in coverage thereof shall be effective
until at least 30 days after receipt by Beneficiary of written notice thereof,
(ii) name Beneficiary as insured party or loss payee, (iii) if reasonably
requested by Beneficiary, include a breach of warranty clause and (iv) be
reasonably satisfactory in all other respects to Beneficiary.
(c) Grantor shall deliver to Beneficiary and the Lenders a report of a
reputable insurance broker with respect to such insurance during the month of
November in each calendar year and such supplemental reports with respect
thereto as Beneficiary may from time to time reasonably request.
6. Hazardous Material. Section 4.17 of the Credit Agreement is
incorporated herein by this reference; provided, however, that all references to
"Properties" shall only mean the "Premises," and all references to "Borrower or
any of its Subsidiaries" shall only mean "Mortgagor."
7. Events of Default. The occurrence of an Event of Default under the
Credit Agreement shall constitute an Event of Default hereunder.
8. Remedies. (a) 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:
5
(i) Beneficiary may, to the extent permitted by applicable law, direct
the Trustee to (A) institute and maintain an action of Deed of Trust
foreclosure against all or any part of the Trust Property, (B) institute
and maintain an action on the Obligations, (C) sell all or part of the
Trust Property at one or more public or private sales and at such times and
places upon such terms as Beneficiary may specify in the notice of sale to
be given to Grantor or as may be required by law (Grantor expressly
granting to Beneficiary the power of sale, which power of sale shall not be
exhausted by one or more such sales, but shall continue unimpaired until
all of the Trust Property shall have been sold or the Obligations and the
Performance Obligations shall have been fully paid and performed), or (D)
take such other action at law or in equity for the enforcement of this Deed
of Trust or any of the Loan Documents as the law may allow. Beneficiary may
proceed in any such action to final judgment and execution thereon for all
sums due hereunder, together with interest thereon at the Default Rate and
all costs of suit, including, without limitation, attorneys' fees and
disbursements. Interest at the Default Rate shall be due on any judgment
obtained by Beneficiary from the date of judgment until actual payment is
made of the full amount of the judgment.
(ii) Beneficiary may personally, or by its Trustee, agents, attorneys
and employees and without regard to the adequacy or inadequacy of the Trust
Property or any other collateral as security for the Obligations and
Performance Obligations enter into and upon the Trust Property and each and
every part thereof and exclude Grantor and its agents and employees
therefrom without liability for trespass, damage or otherwise (Grantor
hereby agreeing to surrender possession of the Trust Property to
Beneficiary upon demand at any such time) and use, operate, manage,
maintain and control the Trust Property and every part thereof. Following
such entry and taking of possession, Trustee shall be entitled, without
limitation, (x) to lease all or any part or parts of the Trust Property for
such periods of time and upon such conditions as Beneficiary may, in its
discretion, deem proper, (y) to enforce, cancel or modify any Lease and (z)
generally to execute, do and perform any other act, deed, matter or thing
concerning the Trust Property as Beneficiary shall deem appropriate as
fully as Grantor might do.
(b) The holder of this Deed of Trust, in any action to foreclose it,
shall be entitled to the appointment of a receiver. In case of a foreclosure
sale, the Real Estate may be sold, at Trustee's election, in one parcel or in
more than one parcel and Beneficiary is specifically empowered, (without being
required to do so, and in its sole and absolute discretion) to cause successive
sales of portions of the Deed of Trust Property to be held.
(c) In the event of any breach of any of the covenants, agreements,
terms or conditions contained in this Deed of Trust, any breach of the statutory
condition upon which this Deed of Trust is made, Beneficiary or Trustee shall be
entitled to enjoin such breach and obtain specific performance of any covenant,
agreement, term or condition and Beneficiary and Trustee shall have the right to
invoke any equitable right or remedy as though other remedies were not provided
for in this Deed of Trust.
9. 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
6
make settlement for the purchase price by crediting upon the Obligations 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.
10. Appointment of Receiver. If an Event of Default shall have occurred
and be continuing or upon any breach of the statutory condition upon which this
Deed of Trust is made, 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 Obligations and Performance 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, and
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 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.
11. Extension, Release, etc. (a) Without affecting the lien 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 Obligations,
Beneficiary may, from time to time and without notice, agree to (i) release any
person liable for the Obligations, (ii) extend the maturity or alter any of the
terms of the Obligations 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 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 Obligations, it is expressly agreed that any repayments
of the principal amount of the Obligations shall not reduce the amount of the
lien of this Deed of Trust until the lien amount shall equal the principal
amount of the Obligations outstanding.
(b) No recovery of any judgment by Xxxxxxxxxxx and no levy of an
execution under any judgment upon the Trust Property or upon any other property
of Grantor shall affect the lien of this Deed of Trust or any liens, rights,
powers or remedies of Beneficiary hereunder, and such liens, rights, powers and
remedies shall continue unimpaired.
(c) If Beneficiary shall have the right to foreclose this Deed of
Trust, Grantor authorizes Beneficiary at its option to foreclose the lien of
this Deed of Trust 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 will not be asserted by Grantor as a
defense to any proceeding instituted by Beneficiary to collect the Obligations
or to foreclose the lien of this Deed of Trust.
(d) Unless expressly provided otherwise, in the event that ownership of
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 lien
7
on the Trust Property for the amount secured hereby.
12. 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 of Virginia. 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 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 ten 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, attorneys' fees and legal expenses. At Beneficiary's
request, 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, 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. Xxxxxxx further agrees to pay to Beneficiary on demand all costs and
expenses incurred by Beneficiary in connection with the preparation, execution,
recording, filing and re-filing of any such document and all costs and expenses
of any record searches for financing statements Beneficiary shall 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.
13. Assignment of Rents. Grantor hereby assigns to Trustee, for the
benefit of Beneficiary, the Rents as further security for the payment of the
Obligations and performance of
8
the Performance Obligations, and Grantor grants to Trustee and Beneficiary the
right 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 Obligations. The foregoing assignment and grant is present and absolute and
shall continue in effect until the Obligations are paid in full, but Beneficiary
and Trustee hereby waive the right to enter the Trust Property for the purpose
of collecting 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).
14. Notices. All notices, requests, demands and other communications
hereunder shall be given in accordance with the provisions of subsection 10.2 of
the Credit Agreement to Grantor, Trustee and Beneficiary as specified therein.
15. No Oral Modification. This Deed of Trust may not be amended,
supplemented or otherwise modified except in accordance with the provisions of
subsection 7.15 of the Credit Agreement. 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
lien or encumbrance.
16. 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 anything contained in this Deed of
Trust or in any provisions of the Obligations or Loan Documents, the obligations
of Grantor and of any other obligor under the Obligations 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.
17. 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 Obligations 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, Xxxxxxx agrees that Grantor
will not at
9
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.
18. Remedies Not Exclusive. Beneficiary and Trustee shall be entitled
to enforce payment of the Obligations and performance of the Performance
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 Obligations and
Performance Obligations may now or hereafter be otherwise secured, whether by
deed of trust, 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
Beneficiary or Trustee 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 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 it 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, in the exercise of the remedies provided in this Deed
of Trust (including, without limitation, in connection with the assignment of
Rents to Beneficiary, 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 "Beneficiary
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.
19. 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 one or more additional deeds of trust, liens, deeds of trust or
other security (directly or indirectly) for the Obligations upon other property
in the State of Virginia (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 foreclosure action all foreclosure
proceedings against all such collateral securing the Obligations (including the
Trust Property), which action may be brought or consolidated in the courts of
any county in which any of such collateral is located. Grantor acknowledges that
the right to maintain a consolidated foreclosure action is a specific inducement
to Beneficiary to extend the Obligations, 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 Beneficiary or Trustee shall be prosecuting one
or more foreclosure
10
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 Obligations, or if Beneficiary shall have obtained a
judgment of foreclosure and sale or similar judgment against such collateral,
then, whether or not such proceedings are being maintained or judgments were
obtained in or outside the State of Virginia, Beneficiary may commence or
continue 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 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. Neither the commencement nor continuation of
proceedings to foreclose this Deed of Trust nor the exercise of any other rights
hereunder nor the recovery of any judgment by Beneficiary in any such
proceedings shall prejudice, limit or preclude Beneficiary's right to commence
or continue one or more foreclosure or other proceedings or obtain a judgment
against any other collateral (either in or outside the State of Virginia) which
directly or indirectly secures the Obligations, and Grantor expressly waives any
objections to the commencement of, continuation of, or entry of a judgment in
such other proceedings or exercise of any remedies in such 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 proceedings or any 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 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 Obligations (directly or
indirectly) in the most economical and least time-consuming manner.
20. 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 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 its sole discretion it deems such waiver 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 successors and assigns. 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.
21. 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
Xxxxxxx. Beneficiary may release, regardless of consideration and without the
necessity for any notice to or consent by 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 any wise
impairing or affecting the lien of this Deed of Trust or the
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priority of such lien over any subordinate lien.
22. Governing Law, etc. This Deed of Trust shall be governed by and
construed in accordance with the laws of the State of Virginia, except that
Grantor expressly acknowledges that by its terms the Credit Agreement and any
obligation arising thereunder 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.
23. 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 agent for the Lenders,"
the word "Trustee" shall mean "Trustee and any successor trustee hereunder," the
word "Notes" or "Guarantee and Collateral Agreement" shall include any other
evidence of indebtedness secured by this Deed of Trust," 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 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 or reference only and in no way limit or
amplify the provisions hereof.
24. Reconveyance by Trustee. Upon written request of Beneficiary
stating that all sums secured hereby have been paid, and upon payment by Grantor
of Trustee's fees, Trustee shall reconvey to Grantor, or the person or persons
legally entitled thereto, without warranty, any portion of the Trust Property
then held hereunder. The recitals in such reconveyance of any matters or facts
shall be conclusive proof of the truthfulness thereof. The grantee in any
reconveyance may be described as "the person or persons legally entitled
thereto."
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This Deed of Trust has been duly executed by Grantor on the date first
above written.
AMERICAN BUILDINGS COMPANY
By: /s/ X. XXXXXXX XXXXXXXX, XX.
----------------------------
X. Xxxxxxx Xxxxxxxx, Xx.
Executive Vice President and
Chief Financial Officer
[Corporate Seal]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
I, a Notary Public, in and for said county and state, hereby certify
that X. Xxxxxxx Xxxxxxxx, Xx., whose name as Executive Vice President and Chief
Financial Officer of American Buildings Company, a Delaware corporation, is
signed to the foregoing instrument, and who is known to me, acknowledged before
me on this day that, being informed of the contents of the instrument, he, as
officer and with full authority, executed the same voluntarily for and as the
act of said corporation.
Given under my hand and official seal on this __th day of December,
1997.
---------------------------
Notary Public
[Notarial Stamp]
Schedule A
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Description of the Premises
[Attach Legal Description of all parcels]
