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EXHIBIT 10(q)
TENNESSEE
Prepared 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: Xxxxx X. Xxxxxxxx, Esq.
DEED OF TRUST, ASSIGNMENT OF RENTS
AND LEASES AND SECURITY AGREEMENT
from
EV INTERNATIONAL, INC., Grantor
to
XXX X. XXXX, XX., Trustee
for the use and
benefit of
THE CHASE MANHATTAN BANK, as Administrative Agent, Beneficiary
DATED AS OF FEBRUARY 10, 1997
MAXIMUM PRINCIPAL INDEBTEDNESS FOR TENNESSEE
RECORDING TAX PURPOSES IS $15,000.00.
SEE ATTACHED AFFIDAVIT
This instrument covers property which has become so affixed to real property as
to become fixtures and constitutes a fixture filing under Section 47-9-402 of
the Tennessee Code Annotated.
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NEWPORT, TENNESSEE
DEED OF TRUST, ASSIGNMENT OF RENTS
AND LEASES AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES AND SECURITY
AGREEMENT, dated as of February 10, 1997 is made by EV INTERNATIONAL, INC., a
Delaware corporation, as successor by merger and name change to Gulton
Industries, Inc. ("GRANTOR"), whose address is 000 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000, to XXX X. XXXX, XX., a resident of Davidson County, Tennessee,
("TRUSTEE") whose address is 000 Xxxxx Xx., Xxxxx 0000, Xxxxxxxxx, 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 February 10, 1997, (as the same may be amended,
supplemented, waived or otherwise modified from time to time the "SENIOR SECURED
CREDIT AGREEMENT") among Gulton Acquisition Corp., a Delaware corporation
("BORROWER"), the Lenders and Beneficiary. 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 Senior Secured
Credit Agreement.
Background
A. Gulton Holdings Corp., a Delaware corporation which, on or after
the Effective Date, will be renamed EVI Audio Holding, Inc. ("HOLDINGS") and
Borrower, its direct Wholly Owned Subsidiary, were newly formed companies
organized by an investor group led by Greenwich Street Capital Partners, Inc., a
Delaware corporation ("GSCP").
B. Borrower acquired Gulton Industries Inc., a Delaware corporation
("GII") which was a subsidiary of Xxxx XX Industries, Inc. ("XXXX XX") through
the purchase from Xxxx XX and Xxxx XX PLC of the capital stock of GII (the
"ACQUISITION") pursuant to the Stock Purchase Agreement, dated as of December
12,
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1996, by and among Xxxx XX, Xxxx XX PLC and Borrower (as amended, supplemented,
waived or otherwise modified from time to time in accordance with the Senior
Secured Credit Agreement, the "STOCK PURCHASE AGREEMENT").
C. Borrower merged with and into GII (the "FIRST MERGER"), and GII
as surviving corporation of the First Merger merged (the "SECOND MERGER"; the
First Merger together with the Second Merger, the "MERGERS") with and into
Electro-Voice, Incorporated, a Delaware corporation and a Wholly Owned
Subsidiary of GII, which was thereupon renamed EV International, Inc.
D. In order to (i) finance a portion of the Acquisition
Consideration, (ii) refinance a portion of the existing indebtedness of GII and
its subsidiaries, (iii) pay certain fees, taxes and expenses related to (x) the
Acquisition and the financing thereof and (y) the refinancing of such existing
indebtedness of GII and its subsidiaries and (iv) finance the working capital
and other business requirements of Grantor and its subsidiaries following the
consummation of the Acquisition and the Merger, Acquisition Co. has requested
that the Lenders make the Loans and issue and participate in the Letters of
Credit in accordance with the terms of the Senior Secured Credit Agreement.
E. 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").
F. Pursuant to the terms of the Senior Secured Credit Agreement, the
Lenders have agreed, among other things, to make the Loans in the maximum
principal amount of $60,000,000, having a maturity date of August 10, 2002, 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 the conditions set forth
in the Senior Secured 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.
G. Grantor is the successor by merger to Borrower, and it is to the
advantage and benefit of Grantor that the Lenders make the Loans to Borrower.
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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 Senior Secured 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 February 10, 1997 between Grantor,
Holdings 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 Senior Secured 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 the Senior Secured 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 Senior Secured 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
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amended, supplemented, extended, renewed, restated, replaced or modified
from time to time, are collectively referred to as the "LOAN DOCUMENTS");
GRANTOR HEREBY CONVEYS TO TRUSTEE AND HEREBY GRANTS, SELLS, BARGAINS, CONFIRMS,
ASSIGNS, TRANSFERS AND SETS OVER TO TRUSTEE, WITH POWER OF SALE FOR THE USE AND
BENEFIT OF BENEFICIARY, AND GRANTS BENEFICIARY, INSOFAR AS ANY PROPERTY
CONSTITUTES PERSONAL PROPERTY, A SECURITY INTEREST IN:
(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,
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
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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 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
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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
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 "Release of Deed of Trust".
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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 Senior
Secured 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 Senior Secured 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".
(b) From and after the date of this Deed of Trust, except as
expressly permitted under the Senior Secured Credit Agreement or herein, Grantor
shall not by
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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 Senior Secured 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 Senior Secured 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
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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
Senior Secured 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 form
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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 Senior
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Secured Credit 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 Senior
Secured 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 Senior Secured 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
Senior Secured 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
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appoints Beneficiary its attorney-in-fact, in Grantor's name, to assign and
transfer all such policies and proceeds to such purchaser or grantee.
(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 Senior Secured 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. Beneficiary has not consented and will not
consent to any contract or to any work or to the furnishing of any materials
which might be deemed to create a lien or liens superior to the lien of this
instrument, either under Section 00-00-000 of the Tennessee Code Annotated, or
otherwise.
7. Due on Sale and Other Transfer Restrictions. Except as may be
otherwise expressly permitted under the Senior Secured Credit Agreement, Grantor
shall not sell, transfer, convey or assign all or any portion of, or any
interest in, the Trust Property.
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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 Senior Secured 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 Senior Secured Credit 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 Senior Secured
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
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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
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 Senior Secured 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
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(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 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
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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 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 Senior Secured 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 Senior Secured Credit Agreement, this Deed of Trust and the other Security
Documents shall become due and payable as provided in the Senior Secured 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
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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:
(i) Beneficiary may elect to cause the Trust Property or any part
thereof to be sold as follows: The Trustee, his successor or substitute,
is authorized and empowered and it shall be his special duty at the
request of Beneficiary to enter and take possession of the Trust Property,
and before or after such entry to advertise the sale of the Trust Property
for 20 days by 3 weekly notices in some newspaper published in the county
where such sale is to be made and to sell the Trust Property or any part
thereof situated in the State of Tennessee at the courthouse door of any
county in the State of Tennessee in which any part of the Trust Property
is situated, at public vendue to the highest bidder for cash between the
hours of 10 o'clock A.M. and 4 o'clock P.M. of the day fixed in the
notice. Said sale shall be free from equity of redemption, statutory right
of redemption, homestead, dower, and all other rights and exemptions of
every kind, all of which are hereby waived, and the Trustee shall execute
a conveyance to the Purchaser and deliver possession to the Purchaser,
which Grantor binds itself shall be given without obstruction, hindrance
or delay. Any sale made by the Trustee hereunder may be as an entirety or
in such parcels or parts as Beneficiary may request, and any sale may be
adjourned by announcement at the time and place appointed for such sale
without further notice except as may be required by law. The sale by the
Trustee of less than the whole of the Trust Property shall not exhaust the
power of sale herein granted, and the Trustee is specifically empowered to
make successive sale or sales under such power until the whole of the
Trust Property shall be sold; and, if the proceeds of such sale of less
then the whole of the Trust Property shall be less than the aggregate of
the Indebtedness secured hereby and the expense of executing this trust as
provided herein, this Deed of Trust and the lien hereof shall remain in
full force and effect as to the unsold portion of the Trust Property just
as though no sale had been made; provided, however, that Grantor shall
never have any right to require the sale of less than the whole of the
Mortgaged Property but Beneficiary shall have the right, at its sole
election, to request the Trustee to sell less than the whole of the Trust
Property. After each sale, the Trustee shall make to the purchaser or
purchasers at such sale good and sufficient conveyances, conveying the
property so sold to the purchaser or purchasers with general warranty of
title as then possessed by the Trustee, and
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after each sale the Trustee shall receive the proceeds of said sale or
sales and apply the same as herein provided. The power of sale granted
herein shall not be exhausted by any sale held hereunder by the Trustee or
his substitute or successor, and such power of sale may be exercised from
time to time and as many times as the Beneficiary may deem necessary until
all the Trust Property has been duly sold and all secured indebtedness has
been fully paid. In the event any sale hereunder is not completed or is
defective in the opinion of the Beneficiary, such sale shall not exhaust
the power of sale hereunder and the Beneficiary shall have the right to
cause a subsequent sale or sales to be made hereunder. Any and all
statements of fact or other recitals made in any deed or deeds given by
the Trustee or any successor or substitute appointed hereunder as to
nonpayment of the Indebtedness or as to the occurrence of any default, or
as to Beneficiary having declared all such indebtedness to be due and
payable, or as to the request to sell, or as to notice of time, place and
terms of sale and the properties to be sold having been duly given, or as
to the refusal, failure or inability to act of the Trustee or any
substitute or successor, or as to the appointment of any substitute or
successor, shall be taken as prima facie evidence of the truth of the
facts so stated and recited. The Trustee, his successor or substitute, may
appoint or delegate any one or more persons as agent to perform any act or
acts necessary or incident to any sale held by the Trustee, including the
posting of notices and the conduct of sale, but in the name and on behalf
of the Trustee, his successor or substitute. In the event a foreclosure
hereunder shall be commenced by the Trustee, or his substitute or
successor, Beneficiary may at any time before the sale of the Trust
Property direct the said Trustee to abandon the sale, and may then
institute suit for the collection of the Notes or any other evidence of
the Indebtedness and the other Indebtedness and Obligations secured
hereby, and for the foreclosure of the lien of this Deed of Trust. It is
agreed that if Beneficiary should institute a suit for the collection of
the Notes or any other evidence of the Indebtedness and/or any other
secured Indebtedness and for the foreclosure of the lien of this Deed of
Trust, Beneficiary may at any time before the entry of a final judgment in
said suit dismiss the same, and require the Trustee, his substitute or
successor to sell the property in accordance with the provisions of this
Deed of Trust.
(ii) Beneficiary may, to the extent permitted by applicable law, (A)
institute and maintain an action of judicial foreclosure against all or
any part of the Trust Property, (B) institute and maintain an action on
the Notes, the Senior Secured Credit Agreement or the other Security
Documents, or (C) 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
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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, reasonable 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.
(iii) Beneficiary may personally, or by its agents, attorneys and
employees and without regard to the adequacy or inadequacy of the Trust
Property or any other collateral as security for the Indebtedness and
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, Beneficiary 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) Beneficiary, in any action to foreclose this Deed of Trust in a
judicial procedure or in connection with the exercise of any non-judicial power
of sale by Trustee, shall be entitled to the appointment of a receiver. In case
of a trustee's sale or foreclosure sale, the Real Estate may be sold, at
Beneficiary'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 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, and notwithstanding to the
contrary any exculpatory or non-recourse language which may be contained herein,
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.
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16. 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.
17. 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 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.
18. 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.
19. Trustee's Powers (and Liabilities). (a) Beneficiary may
substitute, for any reason whatsoever, a successor Trustee or successor Trustees
for the Trustee hereunder from time to time by an instrument in writing in any
manner now or hereafter provided by law. Such right of substitution may be
exercised at any time and more than once for so long as any part of the
Indebtedness and Obligations remains unpaid. Such writing, upon recordation,
shall be conclusive proof of proper substitution of each 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 hereunder.
The making of oath and giving bond by Trustee or any successor Trustee is hereby
expressly waived by Grantor. The Trustee may sell and
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convey said property under the power set out herein, to any person, firm or
corporation, although said Trustee has been, may now be or may hereafter be
attorney for or agent of Beneficiary.
(b) 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, or other evidence of the Indebtedness, and this Deed of Trust for
endorsement, without affecting the liability of any person for the payment of
the indebtedness secured hereby, and without affecting the lien of the Deed of
Trust upon the Trust Property for the full amount of all amounts secured hereby,
upon Beneficiary's request Trustee may (i) release 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.
20. 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. 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, 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
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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.
21. Assignment of Rents. Grantor hereby assigns to Trustee, for the
benefit of Beneficiary, the Rents as further security for the payment of the
Indebtedness and performance of the 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 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
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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).
22. 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.
23. 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 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.
24. 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
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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.
25. 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 Senior Secured Credit
Agreement. The Trustee's address for notices shall be the Trustee's address
given on the first page of this Deed of Trust.
26. 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.
27. 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 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 or loan charges in excess of the
maximum rate or amount permitted by law to be charged by Beneficiary.
28. 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
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30
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.
29. 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 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.
30. 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
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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 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,
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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.
31. 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.
32. 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.
33. 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 Senior
Secured Credit
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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.
34. 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.
35. 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 Senior Secured 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 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.
36. Reconveyance of Deed Of Trust. Upon payment in full of the
Indebtedness, the termination of all Commitments under the Senior Secured 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 Senior
Secured 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.
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37. Conflict With Senior Secured 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 Senior Secured Credit Agreement, the
terms and provisions of the Senior Secured 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 Senior Secured 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.
38. Receipt of Copy. Grantor acknowledges that it has received a
true copy of this Deed of Trust.
39. Notice Pursuant to Section 00-00-000 of Tennessee Code
Annotated. This Deed of Trust secures future advances which are "obligatory
advances" as defined in the aforesaid statute. This Deed of Trust is for
commercial purposes as defined in said statute.
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This Deed of Trust has been duly executed by Grantor as of the date
first above written.
Signed, sealed and EV INTERNATIONAL, INC.
delivered in our
presence: By: /s/ XXXXXXXXX X. VANDEN BEUKEL
--------------------------------
Name: Xxxxxxxxx X. Vanden Beukel
Title: Vice President, Secretary
and Treasurer
/s/ XXXXXX XXXXXXX
----------------------------
Name: Xxxxxx Xxxxxxx
/s/ XXXX XXXXX
----------------------------
Name: Xxxx Xxxxx
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
Personally appeared before me, Xxxxxxxxx X. Vanden Beukel, with whom
I am personally acquainted (or proved to me on the basis of satisfactory
evidence) and who, upon oath, acknowledged herself to be the V.P., Secretary and
Treasurer of EV INTERNATIONAL, INC., the within named bargainor, a Delaware
corporation, and that he as such V.P., Secretary and Treasurer, being authorized
so to do, executed the foregoing instrument for the purposes therein contained
by signing the name of the corporation by himself as such V.P., Secretary and
Treasurer.
WITNESS my hand and seal at office this 10th day of February, 1997.
/s/ XXXXX X. XXXXXXX
-------------------------
Notary Public
My commission expires:
June 3, 1998
___________________________
(embossed seal) XXXXX X. XXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires June 3, 1998
37
000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx County
(Page 1 of 2)
Schedule A
Situated in District No. Six (6) of Xxxxx County, Tennessee, bounded on the West
by Xxxxx County Farm, on the North by State Rural Road Project No. 8-2540-(4) as
shown by State Road Plans dated 1957 & 1958 in State File "Y" Div. 12,
Nashville, Tennessee, on the East by Xxxxx, XxXxxx and the Chemetron
Corporation, on the South by the Chemetron Corporation and the Xxxxx County
Farm, and more particularly described as follows:
BEGINNING at an iron pin in the southern right-of-way line of the aforementioned
highway at the intersection of the eastern right-of-way line of a proposed 50
foot street leading in a south easterly direction and running thence with said
highway and a curve to the right with a center line radius of 1041.74 feet and a
southern right-of-way radius of 1011.74 feet for an arc distance of 450.00 feet
the chord of which bears North 54 deg. 01 min. 29 seconds East a distance of
446.30 feet to a concrete right-of-way post located 30 feet south of highway
center line station P. T. 54+37.8; thence South 23 deg. 14 min. 00 seconds East
10.0 feet to a concrete right-of-way post 40.0 feet south of center line station
P. T. 54+37.8; thence North 66 deg. 46 min. East with the southern right-of-way
of said highway 254.1 feet to a concrete right-of-way post 40 feet south of the
center line station P. C. 56+91.9; thence with a curve to the left with a radius
of 1185.92 for an arc distance of 318.86 feet the chord of which bears North 59
deg. 03 min. 51 seconds East a distance of 317.90 feet to a concrete
right-of-way post opposite center line station 60 + 00; thence South 38 deg. 38
min. 18 seconds East 15.0 feet to a concrete right-of-way post opposite center
line station 60 + 00 and 55 feet south easterly thereof; thence continuing with
a curve to the left whose radius is 1200.92 feet through an arc of 262.00 feet
the chord of which bears North 45 deg. 06 min. 42 seconds East for a distance of
261.48 feet to a right-of-way post opposite center line station 62 + 50; thence
South 51 deg. 08 min. 18 seconds East 45.0 feet to a concrete right-of-way post
100.00 feet south easterly of aforesaid center line station; thence continuing
with a curve to the left whose radius is 1245.92 feet for an arc distance of
262.97 feet the chord of which bears North 32 deg. 48 min. 51 seconds East a
distance of 262.54 feet to a concrete right-of-way post 100.00 feet
southeasterly of center line station P. T. 64 + 91.9 feet; thence North 63 deg.
14 min. 00 seconds West 60.0 feet to a concrete right-of-way post 40 feet from
center line station P. T. 64 + 91.9 feet; thence parallel with the center line
of said highway and 40.0 feet therefrom North 26 deg. 46 min. 00 seconds East
135.5 feet to an iron pipe in said line and corner to Xxxxx XxXxxx; thence South
70 deg. 57 min. East with the old line 546.8 feet to a concrete post corner No.
4 to the Chemetron Corporation; thence with
38
000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx County
(Page 2 of 2)
the eastern margin of an old road and the Chemetron Corporation line five calls
as follows: South 10 deg. 03 min. East 366.7 feet to a concrete post corner No.
5; thence South 57 deg. 36 min. West 49.3 feet to a concrete post corner No. 6;
thence South 77 deg. 45 min. West 49.35 feet to a concrete post corner No. 7;
thence North 89 deg. 58 min. West 198.1 feet to a concrete post corner No. 8;
thence North 84 deg. 00 min. West 197.0 feet to a concrete post corner No. 9;
thence leaving the margin of the old road and continuing with the Chemetron
Corporation line two courses and distances as follows: South 52 deg. 15 min.
West 621.8 feet to a concrete post corner No. 10; thence South 25 deg. 45 min.
West passing a meander corner on the north bank of Sinking Creek at 109.0 feet
and continuing to the center line of said creek; thence up the center line of
the creek as it meanders as follows by meander line as run from aforesaid
meander corner on the North bank of the creek, South 44 deg. 35 min. West 244.3
feet to a stake on north bank of creek; thence South 51 deg. 44 min. West 155.6
feet to a stake; thence South 35 deg. 48 min. West 180.6 feet passing the center
of a 48 inch sycamore tree about 12 feet to an iron pipe set on the north bank
of Sinking Creek about 15 feet Northwest of the center line of the creek and on
the eastern margin of a proposed 50 foot street; thence with the remaining
County Farm lands and the eastern margin of said proposed street North 44 deg.
04 min. West 580.0 feet to an iron pin the Beginning corner, containing eighteen
and one-half (18 1/2) acres, more or less.
BEING the same premises conveyed to Gulton Industries, Inc. by deed from
The Industrial Development Board of the County of Xxxxx, Tennessee, dated
October 31, 1984, of record in the Register's Office of Xxxxx County,
Tennessee, in W.D. Book 217 at Pages 262-265.
