EXHIBIT 4.119
Prepared by and mail to:
CONFORMED COPY
Xxxxxxxx Chance US LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
DALLAS COUNTY, TEXAS
DEED OF TRUST, ASSIGNMENT OF LEASES,
SECURITY AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING
THIS DEED OF TRUST (this "Instrument") entered into as of the
15th day of May, 2003 but effective as of the 19th day of May, 2003 by MARCONI
COMMUNICATIONS, INC., a Delaware corporation ("Trustor"), having an address at
c/o Marconi Corporation plc, Xxx Xxxxxx Xxxxxx, Xxxxxx X0X 0XX Xxxxxx Xxxxxxx,
to XXXX XXXXXXXXX ("Trustee"), having an address at 0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx Xxxxxx, Xxxxx 00000, for the use and benefit of THE
LAW DEBENTURE TRUST CORPORATION p.l.c., a public limited company organized under
the laws of England and Wales, as Security Trustee for the Secured Creditors (as
defined in the Intercreditor Agreement) (together with any co-trustee, co-agent
or other entity that may be appointed after the date hereof pursuant to clause
16 of the Intercreditor Agreement (as defined below)) ("Beneficiary") under the
Security Trust and Intercreditor Deed dated the date hereof and made among
Marconi Corporation plc as Issuer; Beneficiary; the persons listed in Schedule 1
thereto as Guarantors; Law Debenture Trust Company of New York as Senior Note
Trustee; JPMorgan Chase Bank as Junior Note Trustee; HSBC Bank plc as New
Bonding Facility Agent; The Bank of New York as Depositary, Paying Agent and
Registrar; the persons listed in Part A Schedule 2 thereto as Intra-Group
Creditors; the persons listed in Part B Schedule 2 thereto as Intra-Group
Borrowers and the persons listed in Schedule 3 thereto as New Bonding Facility
Banks (as amended, modified or supplemented from time to time, the
"Intercreditor Agreement"), having an address at Xxxxx Xxxxx, 000 Xxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx. Capitalized terms used herein without
definition shall have the respective meanings assigned to such terms in the
Intercreditor Agreement.
W I T N E S S E T H:
WHEREAS, Trustor is a United States wholly-owned subsidiary of
Marconi Corporation, plc (the "Issuer"), which is the Issuer under the
Indentures, the Notes and the New Bonding Facility Agreement;
WHEREAS, as of the date hereof and in favor of Beneficiary,
Trustor has entered into a Guarantee of the Senior Notes and Senior Note
Indenture, a Guarantee of the Junior Notes and the Junior Note Indenture and a
Composite Guarantee of certain other obligations under the Relevant Documents,
including the New Bonding Facility Agreement (collectively, the "Guarantees"),
pursuant to which Trustor has agreed to guarantee the "Guaranteed Obligations"
(as such term is defined in each of the Guarantees) and has agreed to secure the
Guaranteed Obligations and other obligations;
WHEREAS, Trustor has received substantial benefit from the
Secured Obligations (as defined below) secured hereby, which consist of, among
other things, term notes and a revolving bonding
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facility, made in the aggregate principal amount of up to One Billion Two
Hundred Eighty-Four Million Nine Hundred Twenty-Five Thousand and No/100 Dollars
(U.S. $1,284,925,000.00) with a maturity date of October 31, 2008; and
WHEREAS, Beneficiary and the Secured Creditors have required
that Trustor execute and deliver this Instrument (i) in order to secure the
prompt and complete payment, observance and performance of all of the Secured
Obligations (as defined below) and (ii) as a condition precedent to Beneficiary
and the Secured Creditors entering into the Relevant Documents.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
GRANTING CLAUSE
To secure the payment and the performance and discharge of the
Secured Obligations (as hereinafter defined), and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged and
confessed, Trustor has GRANTED, BARGAINED, SOLD, WARRANTED, MORTGAGED, ASSIGNED,
TRANSFERRED and CONVEYED, and by these presents does GRANT, BARGAIN, SELL,
WARRANT, MORTGAGE, ASSIGN, TRANSFER and CONVEY unto Trustee, in trust for the
use and benefit of Beneficiary, with power of sale and right of entry and
possession, all of Trustor's present and future estate, right, title and
interest in and to the Mortgaged Property (as hereinafter defined) now owned, or
hereafter acquired by Trustor, including the following described real estate in
Dallas County, Texas (the "State"):
See Exhibit A attached hereto and by this reference made a
part hereof which real estate (the "Land"), together with all right, title and
interest, if any, which Trustor may now have or hereafter acquire in and to all
improvements, buildings and structures thereon of every nature whatsoever, is
herein called the "Premises."
TOGETHER WITH all right, title and interest, if any, including
any after-acquired right, title and interest, and including any right of use or
occupancy, which Trustor may now have or hereafter acquire in and to (a) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, air rights, development rights, water courses,
water rights and powers, and public places adjoining said Land, and any other
interests in property constituting appurtenances to the Premises, or which
hereafter shall in any way belong, relate or be appurtenant thereto and (b) all
hereditaments, gas, oil, minerals (with the right to extract, sever and remove
such gas, oil and minerals), and easements, of every nature whatsoever, located
in or on the Premises and all other rights and privileges thereunto belonging or
appertaining and all extensions, additions, improvements, betterments, renewals,
substitutions and replacements to, or of any rights and interests described in
subparagraph (a) above and this subparagraph (b) (hereinafter collectively
called the "Property Rights").
TOGETHER WITH all xxxxxxxxxx xxxxx, xxxxxxx and development
rights hereafter acquired by Trustor for use in connection with and the
development of the Land, the Premises or the Property Rights and all additional
lands and estates therein which may, from time to time, by supplemental deed of
trust or otherwise, be expressly made subject to the lien of this Instrument.
TOGETHER WITH all right, title and interest, if any, including
any after-acquired right, title and interest which Trustor may now or hereafter
acquire in and to fixtures and appurtenances of every nature whatsoever now or
hereafter located in, on or attached to, and used or intended to be used in
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connection with, or with the operation of, the Premises, including, but not
limited to, (a) all apparatus, machinery, and equipment of Trustor; (b) all
extensions, additions, improvements, betterments, renewals, substitutions, and
replacements to or of any of the foregoing (the items described in the foregoing
(a) and (b) being the "Fixtures"); and (c) all personal property and equipment
of every nature whatsoever now or hereafter located in or on the Premises,
including, but not limited to, (i) all screens, window shades, blinds,
wainscoting, storm doors and windows, floor coverings, and awnings of Trustor;
(ii) all apparatus, machinery, equipment and appliances of Trustor not included
as Fixtures; (iii) all items of furniture, furnishings, and personal property of
Trustor; and (iv) all extensions, additions, improvements, betterments,
renewals, substitutions, and replacements to or of any of the foregoing
(i)-(iii) (the items described in the foregoing (i)-(iv) and any other personal
property referred to in this paragraph being the "Personal Property") and in and
to the proceeds of the Personal Property. It is mutually agreed, intended and
declared that the Premises and all of the Property Rights and Fixtures owned by
Trustor (referred to collectively herein as the "Real Property") shall, so far
as permitted by law, be deemed to form a part and parcel of the Land and for the
purpose of this Instrument to be real estate and covered by this Instrument. It
is also agreed that if any of the property herein conveyed is of a nature so
that a security interest therein can be perfected under Article 9 of the Uniform
Commercial Code as enacted by the State ("UCC"), this Instrument shall
constitute a security agreement, fixture filing and financing statement, and
Trustor agrees to execute, deliver and file or refile any financing statement,
continuation statement, or other instruments Beneficiary may require from time
to time to perfect or renew such security interest under the UCC. To the extent
permitted by law, (x) all of the Fixtures are or are to become fixtures on the
Land; and (y) this Instrument shall be effective as a financing statement filed
as a fixture filing with respect to all fixtures included within the Mortgaged
Property and is to be filed for record in the real estate records in the Office
of the County Clerk where the Mortgaged Property (including said Fixtures) is
situated, in accordance with Section 9.502 and other applicable provisions of
the Texas Business and Commercial Code, as amended from time to time. This
Instrument shall also be effective as a financing statement covering minerals or
the like (including oil and gas) and accounts subject to Subsection (e) of
Section 9.103 of the Texas Business and Commerce Code, as amended, and is to be
filed for record in the real estate records of the county where the Mortgaged
Property is situated. The mailing address of Trustor and the address of
Beneficiary from which information concerning the security interest may be
obtained are set forth above. Subject to the terms and conditions of the
Intercreditor Agreement, the remedies for any violation of the covenants, terms
and conditions of the agreements herein contained shall be as prescribed herein
or by general law, or, as to that part of the security in which a security
interest may be perfected under the UCC, by the specific statutory consequences
now or hereafter enacted and specified in the UCC, all at Beneficiary's sole
election.
TOGETHER WITH all the estate, right, title and interest of
Trustor, in and to all (i) judgments, insurance proceeds, unearned premiums,
awards of damages and settlements, and any interest thereon, resulting from
condemnation proceedings or the taking of the Real Property, or any part
thereof, under the power of eminent domain or for any damage (whether caused by
such taking or otherwise) to the Real Property, the Personal Property or any
part thereof, or to any rights appurtenant thereto, and all proceeds of any
sales or other dispositions of the Real Property, the Personal Property or any
part thereof; and (subject to the terms of the Intercreditor Agreement)
Beneficiary is hereby authorized to collect and receive said awards and proceeds
and to give proper receipts and acquittances therefor, and to apply the same as
provided in the Intercreditor Agreement; (ii) contract rights, general
intangibles, actions and rights in action, relating to the Real Property or the
Personal Property, including, without limitation, all rights to insurance
proceeds and unearned premiums arising from or relating to damage to the Real
Property or the Personal Property; and (iii) proceeds, products, replacements,
additions, substitutions, renewals and accessions of and to the Real Property or
the Personal Property. (The rights and interests described in this paragraph
shall hereinafter be collectively called the "Intangibles.")
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TOGETHER WITH all the rents, issues and profits of the Real
Property and all rents, issues, profits, revenues, royalties, bonuses, rights
and benefits due, including all rents, revenues, bonus money, royalties, rights
and benefits accruing to Trustor under all present and future oil, gas and
mineral leases located on any portion of the Mortgaged Property, payable or
accruing (including all deposits of money as advance rent, for security or as
xxxxxxx money or as downpayment for the purchase of all or any part of the Real
Property or the Personal Property) (the "Rents") under any and all Leases (as
defined below).
As additional security for the Secured Obligations, Trustor
does hereby pledge and assign to Beneficiary from and after the date hereof
(including any period of redemption), primarily and on a parity with said real
estate, and not secondarily, any and all present and future leases, contracts or
other agreements relating to the ownership of the Real Property or the Personal
Property or to the occupancy of all or any portion of the Real Property and,
except to the extent such a transfer or assignment is not permitted by the terms
thereof (and a consent to the transfer or assignment has not been obtained),
does hereby transfer and assign to Beneficiary all such leases, contracts and
agreements (including all Trustor's rights (x) under any contracts for the sale
of any portion of the Mortgaged Property (as hereinafter defined) and (y) to all
revenues and royalties under any oil, gas and mineral leases relating to the
Real Property) (the "Leases"). Trustor further agrees to execute and deliver
such assignments of leases or assignments of land sale contracts as Beneficiary
may from time to time request solely for the purpose of creating, protecting,
perfecting or maintaining an enforceable lien thereon and an enforceable and
valid assignment of Leases. Upon the occurrence of a Trigger Event, (i) Trustor
agrees, upon demand, to deliver to Beneficiary all of the Leases with such
additional assignments thereof as Beneficiary may request and agrees that
Beneficiary may assume the management of the Real Property, including taking
control of the Leases (provided that such assumption of management shall be done
solely to the extent necessary to collect the Rents in the event of a Material
Default), and (ii) Trustor hereby authorizes and directs all tenants, purchasers
or other persons occupying or otherwise acquiring any interest in any part of
the Real Property to pay the Rents due under the Leases to Beneficiary upon
request of Beneficiary. Trustor hereby appoints Beneficiary as its true and
lawful attorney-in-fact to manage said property and to control the Leases, with
full power to bring suit for collection of the Rents and possession of the Real
Property (provided that such possession shall be taken solely to the extent
necessary to collect such Rents in the event of a Material Default), giving and
granting unto said Beneficiary and unto its agent or attorney full power coupled
with an interest and authority to do and perform all and every act and thing
whatsoever requisite and necessary to be done in the protection of the security
hereby conveyed; provided, however, that (i) this power of attorney and
assignment of Leases shall not be construed as an obligation upon said
Beneficiary to make or cause to be made any repairs that may be needful or
necessary, and (ii) Beneficiary agrees that so long as no Trigger Event shall
have occurred, Beneficiary shall permit Trustor to perform the aforementioned
management responsibilities. Upon Beneficiary's receipt of the Rents, at
Beneficiary's option, it may: (i) pay charges for collection hereunder, costs of
necessary repairs and other costs requisite and necessary during the continuance
of this power of attorney and assignment of Rents, (ii) pay general and special
taxes, insurance premiums, and, thereafter, (iii) distribute the balance of the
Rents pursuant to the provisions of the Intercreditor Agreement. This power of
attorney and assignment of Leases shall be irrevocable until this Instrument
shall have been satisfied and released of record and the releasing or
reconveyance of this Instrument shall act as a revocation of this power of
attorney and assignment of Leases. Subject to Beneficiary's grant to Trustor of
the collection and use of the Rents set forth above, Beneficiary shall have and
hereby expressly reserves the right and privilege (but assumes no obligation) to
demand, collect, xxx for, receive and recover the Rents, or any part thereof,
now existing or hereafter made, and apply the same in accordance with the
provisions of the Intercreditor Agreement. Notwithstanding anything to the
contrary herein, this power of attorney and assignment of Leases shall be
subject and subordinate to Beneficiary's rights set forth in that certain
Assignment of Rents dated of even date herewith, and if there is any conflict
between
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the terms of this Instrument and the terms of such Assignment of Rents the terms
of such Assignment of Rents shall control. For purposes of this Instrument, a
"Trigger Event" shall mean (i) an Enforcement Event or (ii) a "Material Default"
which for purposes of this Instrument shall mean any event that is (A) an
Insolvency Event which is also an Event of Default or (B) any Event of Default
that the Instructing Trustee notifies and instructs Beneficiary to act in
response to pursuant to the Intercreditor Agreement. Notwithstanding anything
herein, upon an Enforcement Event, Beneficiary shall have the absolute right and
option to exercise any and all rights and remedies provided for in this
Instrument and available at law or in equity.
All of the property described above, and each item of property
herein described, and all other rights of Trustor in and to such items of
property, not limited to, but including, the Land, the Premises, the Property
Rights, the Fixtures, the Real Property, the Personal Property, the Intangibles,
the Rents and the Leases, is herein collectively referred to as the "Mortgaged
Property". As used herein, "Secured Obligations" means all present and future
indebtedness, liabilities and obligations (for the avoidance of doubt, including
any liabilities and obligations that have been cash-collateralized by Trustor),
at any time of Trustor under the Relevant Documents (including this Instrument),
including any liability in respect of any further advances, if any, made under
the Relevant Documents, both actual and contingent (and whether incurred solely
or jointly or in any other capacity) together with any of the following matters
relating to or arising in respect of those liabilities and obligations: (1) any
refinancing, novation, deferral or extension; (2) any obligation relating to any
increase in the amount of such obligations; (3) any claim for damages or
restitution; and (4) any claim as a result of any recovery by Trustor of a
payment or discharge, or non-allowability, on the grounds of preference; and any
amounts that would be included in any of the above but for any discharge,
non-provability or unenforceability of those amounts in any insolvency or other
proceedings (including interest accruing after the commencement of any
insolvency or other proceedings).
Nothing herein contained shall be construed as constituting
Beneficiary or any of its Delegates and any of the Secured Creditors a
mortgagee-in-possession in the absence of the taking of actual possession of the
Mortgaged Property by Beneficiary or any of its Delegates or any of the Secured
Creditors. Nothing contained in this Instrument shall be construed as imposing
on Beneficiary any of the obligations of the lessor under any lease of the
Mortgaged Property in the absence of an explicit assumption thereof by
Beneficiary. In the exercise of the powers herein granted Beneficiary, no
liability shall be asserted or enforced against Beneficiary, all such liability
being expressly waived and released by Trustor.
TO HAVE AND TO HOLD the Mortgaged Property, properties, rights
and privileges hereby conveyed or assigned, or intended so to be, unto Trustee,
its successors and assigns, for the benefit of Beneficiary, its successors and
assigns, forever upon the trusts, terms and conditions and for the uses and
purposes herein set forth. The conveyance of the Mortgaged Property provided for
herein is made upon this special trust. If the Secured Obligations are paid and
performed in full and completely as and when due in accordance with their
respective terms, the conveyance provided for herein shall be released upon
satisfaction of the conditions set forth in Section 5.3 of the Intercreditor
Agreement and shall thereafter be null and void and may be canceled of record at
the request and cost of Trustor and title shall revest as provided by law. If,
however, a Trigger Event shall have occurred, then Beneficiary shall be entitled
to invoke the remedies in the granting clause above in connection with the
assignment of Leases and Rents, and if an Enforcement Event shall have occurred,
then Beneficiary shall, in addition to all other rights and remedies at law or
equity provided, be entitled to invoke the remedies provided for in Section 4.02
below including without limitation the right to foreclose this Instrument by
judicial proceedings or, at Beneficiary's election, the right to demand that
Trustee foreclose this Instrument
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through exercise of the power of sale herein granted to Trustee, and upon such
demand by Beneficiary, Trustee shall have the right and the duty to foreclose
this Instrument as herein provided.
The following provisions shall also constitute an integral
part of this Instrument:
ARTICLE I
[Reserved]
ARTICLE II
COVENANTS OF TRUSTOR
Section 2.01. [Reserved]
Section 2.02. Leases Affecting the Real Property. All future
lessees under any Lease of the Real Property, or any part thereof, made after
the date of recording of this Instrument shall, at Beneficiary's option and
without any further documentation, attorn to Beneficiary as lessor if for any
reason Beneficiary becomes lessor thereunder, and, thereafter, upon demand, to
pay Rent to Beneficiary, and Beneficiary shall not be responsible under such
Lease for matters arising prior to Beneficiary becoming lessor thereunder. In
respect of each Lease which may be entered into on or after the date hereof, the
lien and estate, as well as the provisions, terms and conditions of each Lease
shall in all respects be subordinate and junior to the lien of this Instrument.
Section 2.03. Further Assurances. Trustor, at its sole cost and
expense, shall (i) upon request of Beneficiary promptly correct any defect or
error which may be discovered in this Instrument or any financing statement or
other document relating hereto solely to the extent necessary to create,
effectuate, complete, perfect, continue or preserve the lien of this Instrument
on the Mortgaged Property, and (ii) promptly execute, acknowledge, deliver,
record and re-record, register and re-register, and file and re-file this
Instrument, any amendment to this Instrument and any financing statements or
other documents which Beneficiary may request in writing from time to time (all
in form and substance reasonably satisfactory to Beneficiary) in order (A) to
create, effectuate, complete, perfect, continue or preserve the lien of this
Instrument as a first priority lien on the Mortgaged Property, whether now owned
or hereafter acquired, subject only to the matters set forth on Exhibit B
attached hereto and made a part hereof and except for the Permitted Liens (as
defined in the Indentures), or (B) to create, effectuate, complete, perfect,
continue, preserve or validate any right, power or privilege granted or intended
to be granted to Beneficiary hereunder or otherwise accomplish the purposes of
this Instrument. To the extent permitted by law and to the extent that Trustor
fails to do so as required hereunder, Trustor hereby authorizes Beneficiary to
file financing statements or continuation statements covering the Mortgaged
Property.
Section 2.04. Casualty Proceeds. Trustor hereby assigns to
Beneficiary, as additional security, all proceeds or awards of damage resulting
from a casualty event or condemnation proceedings or the taking of or injury to
the Real Property for public use. All such proceeds or awards paid to
Beneficiary hereunder shall be applied in accordance with the Indentures.
Section 2.05. Inspections. Trustor hereby authorizes Beneficiary,
its agents, employees and representatives, upon reasonable prior written notice
to Trustor (except in an emergency or following the occurrence of any Trigger
Event, in which case notice shall not be required) to visit and inspect the
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Mortgaged Property or any portion(s) thereof, all at such reasonable times and
as often as Beneficiary may reasonably request.
Section 2.06. Indemnity. Trustor hereby indemnifies Beneficiary or
any person designated by it and keep Beneficiary or such person designated by it
indemnified against any and all costs, claims and liabilities which it may incur
as a result of anything done by it as an attorney-in-fact for Trustor in the
proper exercise of any of the powers conferred, or purported to be conferred,
thereon by this Instrument unless such cost, claim or liability arises as a
result of the negligence or wilful misconduct of Beneficiary or such person
designated by it. For clarification purposes, the indemnity set forth in this
Section 2.06 shall apply solely in those instances where Beneficiary or a
Delegate acts as an attorney-in-fact for Trustor for purposes of this
Instrument.
Section 2.07. After Acquired Property Interests. All right, title
and interest of Trustor in and to all of the Mortgaged Property, hereafter
acquired by Trustor ("After Acquired Property Interests"), immediately upon such
acquisition, without any further mortgage, conveyance, assignment or other act
by Trustor, shall become subject to the lien of this Instrument as fully and
completely, and with the same effect, as though owned by Trustor on the date
hereof and specifically described in the granting clauses hereof. Trustor shall
execute and deliver to Beneficiary all such other deeds of trust or mortgages
and other agreements as Beneficiary may require for the purpose of expressly and
specifically subjecting such After Acquired Property Interests to the lien of
this Instrument. Trustor hereby irrevocably authorizes and appoints Beneficiary
as the agent and attorney-in-fact of Trustor to execute all such documents and
instruments on behalf of Trustor, which appointment shall be irrevocable and
coupled with an interest, if Trustor fails or refuses to do so within ten (10)
days after written request therefor by Beneficiary.
Section 2.08. Expenses and Costs. Trustor shall, from time to time
and promptly on demand by Beneficiary reimburse to Beneficiary all costs and
expenses (including legal fees) on a full indemnity basis incurred by
Beneficiary and any Delegate in connection with:
1. the execution, release and discharge of this Instrument and
the security created hereby or intended to be created hereby
in respect of the Mortgaged Property and the completion of the
transactions and perfection of the security contemplated in
this Instrument or forming part of the security created hereby
or intended to be created hereby in respect of the Mortgaged
Property;
2. the actual or contemplated exercise, preservation and/or
enforcement of any of the rights, powers and remedies of, or
the performance of the duties and obligations of, Beneficiary
or any Delegate, or any amendment or waiver in respect of this
Instrument;
3. the foreclosure (whether judicial or by power of sale) of any
Mortgaged Property; and
4. the preservation and/or enforcement of the security created
hereby or intended to be created hereby in respect of the
Mortgaged Property,
which shall carry interest from the date of such demand until so reimbursed at
the rate and on the basis as mentioned in Clause 18.4 of the Intercreditor
Agreement.
Section 2.09. Taxes. Trustor shall pay, promptly on demand of
Beneficiary all stamp, registration, notarial and other similar taxes or fees
paid or payable by Beneficiary in connection with any action taken or
contemplated by or on behalf of Beneficiary for perfecting, maintaining,
enforcing, releasing, cancelling, reassigning or resolving any doubt concerning,
or for any other purpose in relation
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to this Instrument, any amendment thereto, any transfer and/or assignment of the
rights and/or obligations under the same or the security created hereby or
intended to be created hereby in respect of the Mortgaged Property and shall,
from time to time, indemnify Beneficiary promptly on demand against any
liabilities, costs, claims and expenses resulting from any failure to pay by
Trustor or any delay by Trustor in paying any such taxes or fees.
ARTICLE III
BENEFICIARY'S RIGHTS
Section 3.01. Performance of Trustor's Obligations. Trustor agrees
that, upon the occurrence of an Enforcement Event, Beneficiary may, but need
not, make any payment or perform any act hereinbefore required of Trustor, in
any form and manner deemed expedient. By way of illustration and not in
limitation of the foregoing, Beneficiary may, but need not, (i) make full or
partial payments of insurance premiums which are unpaid by Trustor, coordinate
liens or encumbrances, if any, (ii) purchase, discharge, compromise or settle
any tax lien or any other lien, encumbrance, suit, proceeding, title or claim
thereof, or (iii) redeem all or any part of the Premises from any tax or
assessment. All moneys paid for any of the purposes herein authorized and all
other moneys advanced by Beneficiary to protect the Mortgaged Property and the
lien hereof shall be additional Secured Obligations and shall become immediately
due and payable without notice and shall bear interest thereon at the rate set
forth in Clause 18.4 of the Intercreditor Agreement until paid to Beneficiary in
full. In making any payment hereby authorized relating to taxes, assessments or
prior or coordinate liens or encumbrances, Beneficiary shall be the sole judge
of the legality, validity and priority thereof and of the amount necessary to be
paid in satisfaction thereof.
ARTICLE IV
REMEDIES & RIGHTS
Section 4.01. Remedies of Beneficiary; Power of Sale. Upon the
occurrence of an Enforcement Event, Beneficiary may, without notice to or demand
upon Trustor, declare this Instrument to be in default, and, in addition to all
other rights and remedies at law or in equity available to Beneficiary or as
otherwise provided for in the Intercreditor Agreement or the Indentures, to the
extent permitted by applicable law, the following provisions shall apply:
(a) Upon the occurrence of an Enforcement Event, it shall
thereupon be the duty of Trustee, or his successor or substitute, as hereinafter
provided, to enforce this trust at the request of the Beneficiary (which request
shall be presumed) and to sell the Mortgaged Property with or without first
having taken possession of the same and in whole or in part, as the acting
Trustee may elect (all rights to a marshalling of assets of Trustor being
expressly waived hereby), in compliance with the applicable requirements, at the
time of the sale, of Section 51.002 of the Texas Property Code as amended or
superceded from time to time. Such sale shall be made to the highest bidder for
cash at public auction at the County Courthouse of any County in which the
Mortgaged Property is situated, in the area of such courthouse designated for
real property foreclosure sales in accordance with applicable law (or in the
absence of any such designation, in the area set forth in the notice of sale
hereinafter described) on the first Tuesday of any month between the hours of
10:00 A.M. and 4:00 P.M. (commencing no earlier than such time as may be
designated in the hereinafter described notice of sale), after giving notice of
the time, place and terms of sale and the Mortgaged Property to be sold by (i)
the acting Trustee or any person chosen by him filing a copy of the notice
thereof in the office of the County Clerk of each County where the Mortgaged
Property is situated and by posting or causing to be posted written or printed
notice thereof
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at least twenty-one (21) days preceding the date of said sale at the County
Courthouse door of each County, and (ii) Beneficiary or any person chosen by it,
at least twenty-one (21) days preceding the date of said sale, serving written
notice of such proposed sale by certified mail on each debtor obligated to pay
the Secured Obligations evidenced by the Notes according to the records of
Beneficiary. Service of such notice to each debtor shall be completed upon
deposit of the notice enclosed in a postpaid wrapper, properly addressed to each
debtor at the most recent address as shown by the records of Beneficiary, in a
post office or official depository under the care and custody of the United
States Postal Service. The affidavit of any person having knowledge of the facts
to the effect that such service was completed shall be prima facie evidence of
the fact of service. After such sale, the acting Trustee shall make due
conveyance with special warranty to the purchaser or purchasers and Trustor
binds itself, its heirs, assigns, executors, administrators, successors and
legal representatives to warrant and forever defend the title of such purchaser
or purchasers, claiming by, through, or under grantor but not otherwise. Any
abstract of title to the Mortgaged Property furnished in connection with the
loan secured by this Instrument shall be delivered by Trustee and become the
property of the purchaser at said sale.
(b) Upon the occurrence of an Enforcement Event, the
Beneficiary shall have the right and option to proceed with foreclosure in
satisfaction of such item or items by directing Trustee, or his successor or
substitute as hereinafter provided, to proceed as if under a full foreclosure,
conducting the sale as herein provided, and without declaring the whole Secured
Obligations due, and provided that if sale is made because of an occurrence of
an Enforcement Event as hereinabove mentioned, such sale may be made subject to
the unmatured part of the Relevant Documents and the Secured Obligations secured
hereby, and it is agreed that such sale, if so made, shall not in any manner
affect any other obligation or obligations secured hereby, but as to such other
obligations this Instrument and the liens created hereby shall remain in full
force and effect just as though no sale had been made under the provisions of
this Section 4.01(a). It is further agreed that several sales may be made
hereunder without exhausting the right of sale for any other breach of any of
the obligations secured hereby, it being the purpose to provide for a
foreclosure and sale of the Mortgaged Property for any matured portion of any of
the Secured Obligations secured hereby or other items provided for herein
without exhausting the power to foreclose and to sell the Mortgaged Property for
any other part of the Secured Obligations secured hereby whether matured at the
time or subsequently maturing.
(c) Subject to the terms and provisions of the
Intercreditor Agreement, the proceeds from any such sale shall be applied by the
acting Trustee as follows:
FIRST: To the payment of all expenses of
advertising, selling and conveying
the Mortgaged Property, including a
reasonable commission to the acting
Trustee.
SECOND: To the payment to Beneficiary of
all unpaid Secured Obligations,
including accrued interest to the
date of sale, in such priority and
proportions as Beneficiary in its
discretion shall deem proper.
THIRD: The balance, if any, shall be paid
to Trustor.
(d) The acting Trustee hereunder shall have the right to
sell the Mortgaged Property in whole or in part and in such parcels and order as
he may determine, and the right of sale hereunder shall not be exhausted by one
or more sales, but successive sales may be had until all of the Mortgaged
Property have been legally sold. In the event any sale hereunder is not
completed or is defective in the opinion of Beneficiary, such sale shall not
exhaust the power of sale hereunder, and Beneficiary shall have the right to
cause a subsequent sale or sales to be made by Trustee or any successor or
substitute Trustee. Likewise, Beneficiary may become the purchaser at any such
sale if it is the highest bidder, and shall
9
have the right, after paying or accounting for all costs of said sale or sales,
to credit the amount of the bid upon the amount of the Secured Obligations
owing, in lieu of cash payment. The purchaser or purchasers at foreclosure shall
have the right to affirm or disaffirm any Lease.
(e) It shall not be necessary for the acting Trustee to
have constructively in his possession any part of the real or personal property
covered by this Instrument, and the title and right of possession of the
Mortgaged Property shall pass to the purchaser or purchasers at any sale
hereunder as fully as if the same had been actually present and delivered.
Likewise, on foreclosure of this Instrument whether by power of sale herein
contained or otherwise, Trustor or any person claiming any part of the Mortgaged
Property by, through or under Trustor, shall not be entitled to a marshalling of
assets or a sale in inverse order of alienation.
(f) The recitals and statements of fact contained in any
notice or in any conveyance to the purchaser or purchasers at any sale hereunder
shall be prima facie evidence of the truth of such facts, and all prerequisites
and requirements necessary to the validity of any such sale shall be presumed to
have been performed.
(g) Any sale under the powers granted by this Instrument
shall be a perpetual bar against Trustor, its heirs, successors, assigns and
legal representatives.
(h) In the event of a foreclosure under the powers
granted by this Instrument, Trustor, and all other persons in possession of any
part of the Mortgaged Property shall be deemed tenants at will of the purchaser
at such foreclosure sale and shall be liable for a reasonable rental for the use
of the Mortgaged Property; and if any such tenants refuse to surrender
possession of the Mortgaged Property upon demand, the purchaser shall be
entitled to institute and maintain the statutory action of forcible entry and
detainer and procure a writ of possession thereunder, and Trustor expressly
waives all damages sustained by reason thereof.
(i) To the extent Section 51.003 of the Texas Property
Code, or any amendment thereto or judicial interpretation thereof, requires that
the "fair market value" of the Mortgaged Property shall be determined as of the
foreclosure date in order to enforce a deficiency against Trustor or any other
party liable for the repayment of the Secured Obligations, the term "fair market
value" shall include those matters required by law and shall also include the
additional factors as follows:
(i) The Mortgaged Property is to be valued "AS
IS, WHERE IS" and "WITH ALL FAULTS" and there shall be no assumption of
restoration of or refurbishment of the Mortgaged Property after the date of
foreclosure;
(ii) There shall be an assumption of a prompt
resale of the Mortgaged Property for an all cash sales price by the purchaser at
the foreclosure so that no extensive holding period should be factored into the
determination of "fair market value" of the Mortgaged Property;
(iii) An offset to the fair market value of the
Mortgaged Property, as determined hereunder, shall be made by deducting from
such value the reasonable estimated closing costs relating to the sale of the
Mortgaged Property including but not limited to brokerage commissions, title
policy expenses, tax prorations, escrow fees, and other common charges which are
incurred by a seller of real property similar to the Mortgaged Property; and
10
(iv) After consideration of the factors required
by law and those required above (including the addition of any income to be
generated by the Mortgaged Property), an additional discount factor shall be
calculated based upon the estimated time it will take to effectuate a sale of
the Mortgaged Property so that the "fair market value" as so determined is
discounted to be as of the date of the foreclosure of the Mortgaged Property.
Section 4.02. Application of the Rents or Proceeds from Foreclosure
or Sale. The Rents and the proceeds of any sale (whether through a foreclosure
proceeding or Beneficiary's exercise of the power of sale) shall be distributed
and applied in accordance with the terms of the Intercreditor Agreement. Subject
to the terms and provisions of the Intercreditor Agreement, there shall be
allowed (and included in the decree for sale in the event of a foreclosure by
judicial action) to be paid out of the Rents or the proceeds of such foreclosure
proceeding and/or sale:
(a) Secured Obligations. All of the Secured Obligations
and other sums secured hereby which then remain unpaid;
(b) Other Advances. All other items advanced or paid by
Beneficiary pursuant to this Instrument, with interest thereon at the rate set
forth in Clause 18.4 of the Intercreditor Agreement from the date of
advancement; and
(c) Costs, Fees and Other Expenses. All court costs,
reasonable in-house and outside attorneys' and paralegals' fees and expenses,
costs of environmental surveys and guard or other security services, appraiser's
fees, advertising costs, notice expenses, expenditures for documentary and
expert evidence, stenographer's charges, publication costs, and costs (which may
be estimated as to items to be expended after entry of the decree) of procuring
all abstracts of title, title searches and examinations, title guarantees, title
insurance policies, surveys, and similar data with respect to title which
Beneficiary may deem necessary. All such expenses shall become additional
Secured Obligations and be immediately due and payable, with interest thereon at
the rate set forth in Clause 18.4 of the Intercreditor Agreement, when paid or
incurred by Beneficiary or Trustee in connection with any proceedings,
including, but not limited to, probate and bankruptcy proceedings, to which
Beneficiary or Trustee shall be a party, either as plaintiff, claimant or
defendant, by reason of this Instrument or any indebtedness hereby secured or in
connection with the preparations for the commencement of any suit for the
foreclosure, whether or not actually commenced, or sale under the power of sale
herein granted.
Section 4.03. Cumulative Remedies; Delay or Omission Not a Waiver.
Each remedy or right of Beneficiary shall not be exclusive of, but shall be in
addition to, every other remedy or right now or hereafter existing at law or in
equity. No delay in the exercise or omission to exercise any remedy or right
accruing on the occurrence or existence of any Material Default or Enforcement
Event shall impair any such remedy or right or be construed to be a waiver of
any such Material Default or Enforcement Event or acquiescence therein, nor
shall it affect any subsequent Material Default or Enforcement Event of the same
or different nature. Every such remedy or right may be exercised concurrently or
independently and when and as often as may be deemed expedient by Beneficiary.
The acceptance by Beneficiary, any successor administrative agent or any secured
party of any payment less than the amount of the Secured Obligation in question
shall be deemed to be an acceptance on account only and shall not be construed
as a waiver of any Material Default or Enforcement Event with respect thereto,
and the acceptance by Beneficiary, any successor administrative agent or any
secured party of any payment of, or on account of, any Secured Obligation shall
not be deemed to be a waiver of any Material Default or Enforcement Event other
occurrence hereunder or under any Relevant Documents with respect to any other
Secured Obligation. If Beneficiary has proceeded to enforce any remedy or right
hereunder or with respect hereto by foreclosure, sale, entry or otherwise, it
may compromise, discontinue or abandon such
11
proceeding for any reason without notice to Trustor or any other party (except
any other agent, the Secured Creditors or the other secured parties to the
extent required by any Relevant Documents); and, if any such proceeding shall be
discontinued, abandoned or determined adversely for any reason, Trustor and
Beneficiary shall retain and be restored to their former positions and rights
hereunder with respect to the Mortgaged Property, subject to the lien hereof
except to the extent any such adverse determination specifically provides to the
contrary.
Section 4.04. Beneficiary's Remedies against Multiple Parcels. If
more than one property, lot or parcel is covered by this Instrument, and if this
Instrument is foreclosed upon, or judgment is entered upon any Secured
Obligations, or if Trustee effects a trustee's sale under power of sale,
execution may be made upon or Trustee may effect a trustee's sale against any
one or more of the properties, lots or parcels and not upon the others, or upon
all of such properties or parcels, either together or separately, and at
different times or at the same time, and execution sales or trustee's sale
herein granted may likewise be conducted separately or concurrently, in each
case at Beneficiary's election.
Section 4.05. No Merger. In the event of a foreclosure of this
Instrument or any other mortgage or deed of trust securing the Secured
Obligations, the Secured Obligations then due to the Beneficiary shall not be
merged into any decree of foreclosure entered by the court, and Beneficiary may
concurrently or subsequently seek to foreclose one or more other deeds of trust
which also secure said Secured Obligations.
Section 4.06. Waivers by Trustor. To the fullest extent permitted
under applicable law, Trustor shall not assert, and hereby irrevocably waives,
any right or defense Trustor may have under any statute or rule of law or equity
now or hereafter in effect relating to (a) homestead exemption, extension,
moratorium, stay, redemption, marshaling of the Mortgaged Property or the other
assets of Trustor, sale of the Mortgaged Property in any order or notice of
deficiency or intention to accelerate any Secured Obligation, (b) impairment of
any right of subrogation or reimbursement, (c) any requirement that at any time
any action must be taken against any other party, any portion of the Mortgaged
Property or any other asset of Trustor or any other party, (d) any provision
barring or limiting the right of Beneficiary to sell any Mortgaged Property
after any other sale of any other Mortgaged Property or any other action against
Trustor or any other party, (e) any provision barring or limiting the recovery
by Beneficiary of a deficiency after any sale of the Mortgaged Property, (f) any
other provision of applicable law which shall defeat, limit or adversely affect
any right or remedy of Beneficiary or any secured party under or with respect to
this Instrument or any other Relevant Documents as it relates to any Mortgaged
Property, (g) the right of Beneficiary to foreclose this Instrument in its own
name on behalf of all of the secured parties by judicial action as the real
party in interest without the necessity of joining any secured party, or (h) the
Guarantees, including, without limitation, notice of existence, creation or
incurring of any new or additional indebtedness or obligation or of any action
or non-action on the part of Trustor or the Issuer, Beneficiary or any Secured
Creditor or on the part of any person whomsoever under the Intercreditor
Agreement, this Instrument or any of the other Relevant Documents in connection
with any obligation or evidence of indebtedness held by Beneficiary, as Security
Trustee for the Secured Creditors, or held by any of the Secured Creditors.
Appraisement of the Premises is hereby expressly waived, at the option of
Beneficiary, which such option shall be executed prior to the time any judgment
is tendered at foreclosure.
Section 4.07. Jurisdiction and Process. (a) To the extent permitted
under applicable law, in any suit, action or proceeding arising out of or
relating to this Instrument or any other Relevant Documents insofar and only
insofar as it relates to any Mortgaged Property, Trustor (i) irrevocably
consents to the non-exclusive jurisdiction of any state or federal court sitting
in which the Premises is located and irrevocably waives any defense or objection
which it may now or hereafter have to the jurisdiction of
12
such court or the venue of such court or the convenience of such court as the
forum for any such suit, action or proceeding, and (ii) irrevocably consents to
the service of (A) any process in accordance with applicable law in any such
suit, action or proceeding, or (B) any notice relating to any sale, or the
exercise of any other remedy by Beneficiary hereunder by mailing a copy of such
process or notice by United States registered or certified mail, postage
prepaid, return receipt requested to Trustor at its address specified in or
pursuant to Section 5.01; such service to be effective in accordance with
applicable law.
(b) Nothing in this Section shall affect the right of
Beneficiary to bring any suit, action or proceeding arising out of or relating
to this Instrument, or any other Relevant Documents in any court having
jurisdiction under the provisions therein or applicable law or to serve any
process, notice of sale or other notice in any manner permitted by this
Instrument, the other Relevant Documents or applicable law.
Section 4.08. Concerning Beneficiary. (a) Beneficiary is authorized
to take all such action as is provided to be taken by it as Beneficiary
hereunder and all such other action incidental thereto, subject to the terms and
provisions of the Intercreditor Agreement. As to any matters not expressly
provided for herein (including the timing and methods of realization upon the
Mortgaged Property), Beneficiary shall, in addition, act or refrain from acting
in accordance with the terms and provisions of the Intercreditor Agreement.
Beneficiary shall not be responsible for the existence, genuineness or value of
any of the Mortgaged Property or for the validity, perfection, priority or
enforceability of the lien of this Instrument on any of the Mortgaged Property,
whether impaired by operation of law or by reason of any action or omission to
act on its part hereunder. Beneficiary shall have the right, but shall have no
duty, to ascertain or inquire as to the performance or observance of any of the
terms of this Instrument by Trustor.
(b) Beneficiary may, at any time, delegate by power of
attorney or otherwise to any person(s) or entity(ies) the ability to exercise
any or all of the rights, powers and discretions vested in it by this Instrument
or appoint any person or entity to act as additional Beneficiary or as
co-trustee for the purpose of this Instrument, in accordance with and subject to
the terms of Clause 16 of the Intercreditor Agreement.
(c) In the event that Beneficiary acts as Trustor's
attorney in fact or otherwise as its agent as provided for under this
Instrument, Trustor shall ratify and confirm all things done and all documents
executed by Beneficiary in the exercise or purported exercise of all or any of
such powers or acts.
ARTICLE V
MISCELLANEOUS
Section 5.01. Notices. Except as otherwise provided herein, all
communication required or permitted to be given in connection with this
Instrument shall be in writing, and shall be given or served in the manner and
to the address, and deemed received, as provided in clause 20 of the
Intercreditor Agreement. All communications to Trustee shall be sent to Trustee
at:
13
if to Trustee:
Xxxx Xxxxxxxxx
c/o First American Title Insurance Company
0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Trustee shall, from time to time, have the right to specify as the proper
addressee and/or address for the purposes of this Instrument any other party or
address in the United States upon giving five (5) days prior written notice in
the manner herein prescribed. Trustor's mailing address, as set forth in the
opening paragraph hereof or as changed pursuant to the provision hereof, is true
and correct.
Section 5.02. Extension of Payments and Other Modifications.
Trustor agrees that, without affecting the liability of any person for payment
of the Secured Obligations or affecting the lien of this Instrument upon the
Mortgaged Property or any part thereof (other than persons or property
explicitly released as a result of the exercise by Beneficiary or Trustee of
their rights and privileges hereunder), Beneficiary may (without obligation), at
any time and from time to time, on request of Trustor made in accordance with
the terms and provisions of the Intercreditor Agreement, without notice to any
person liable for payment of any Secured Obligations or to any other person or
entity, extend the time, or agree to alter or amend the terms of payment of such
Secured Obligations; provided, however, that such actions of Beneficiary are
expressly limited by the terms and provisions of the Intercreditor Agreement.
Trustor further agrees that any part of the security herein described may be
released with or without consideration without affecting the remainder of the
Secured Obligations, the remainder of the security or the lien of this
Instrument.
Section 5.03. Governing Law. Trustor agrees that this Instrument is
to be construed, governed and enforced in accordance with the laws of the State.
Wherever possible, each provision of this Instrument shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Instrument shall be prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Instrument.
Section 5.04. Satisfaction of Mortgage. Upon satisfaction of the
conditions set forth in Section 5.3 of the Intercreditor Agreement, this
conveyance or lien shall be null and void and, upon demand therefor following
such satisfaction, a satisfaction of mortgage or reconveyance of the Mortgaged
Property and any other documents required to release the lien of this Instrument
shall promptly be provided by Beneficiary to Trustor, at Trustor's sole expense,
without recourse to, or any representation or warranty by, the Beneficiary or
any of its nominees.
Section 5.05. Successors and Assigns Included in Parties. This
Instrument shall be binding upon Trustor and upon the successors, assigns and
vendees of Trustor and shall inure to the benefit of Beneficiary's successors
and assigns and any principals it represents as agent; all references herein to
Trustor and to Beneficiary or Trustee shall be deemed to include their
successors and assigns and, as to Beneficiary, any principals it represents as
agent. Trustor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor in possession of or for Trustor. Wherever used, the
singular number shall include the plural, the plural shall include the singular,
and the use of any gender shall be applicable to all genders.
14
Section 5.06. Waiver of Appraisement, Valuation, Stay, Extension
and Redemption Laws. Trustor agrees, to the full extent permitted by law, that
in case of an Enforcement Event, neither Trustor nor anyone claiming through or
under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, or extension laws now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of this Instrument or
the absolute sale of the Mortgaged Property or the final and absolute putting
into possession thereof, immediately after such sale, of the purchaser thereat,
and Trustor, for itself and all who may at any time claim through or under it,
hereby waives, to the full extent that it may lawfully so do, the benefit of all
such laws, and any and all right to have the assets comprising the Mortgaged
Property marshalled upon any foreclosure of the lien hereof and agrees that
Trustee, or any court having jurisdiction to foreclose such lien may sell the
Mortgaged Property in part or as an entirety. Trustor represents that it has
been authorized to, and Trustor does hereby waive to the full extent permitted
by law any and all statutory or other rights of redemption from sale under power
of sale or from sale under any order or decree of foreclosure of this
Instrument, on its own behalf and on behalf of each and every person acquiring
any interest in or title to the Mortgaged Property subsequent to the date
hereof.
Section 5.07. Interpretation with Other Documents. Notwithstanding
anything in this Instrument to the contrary, (a) in the event of a conflict or
inconsistency between this Instrument and the provisions of the Intercreditor
Agreement, the provisions of the Intercreditor Agreement shall govern, and (b)
the exercise of any right or remedy by Beneficiary under this Instrument shall
be done in accordance with and is subject to the terms and provisions of the
Intercreditor Agreement.
Section 5.08. Future Advances. The parties hereto intend that, in
addition to any other debt or obligation secured hereby, this Instrument shall
secure unpaid balances of loan advances and other extensions of credit made
after this Instrument is delivered to the appropriate recording offices of the
State, whether such advances or extensions of credit made are obligatory or
otherwise, and such future advances or extensions of credit shall be secured to
the same extent as if such advances or extensions of credit were made on the
date hereof, although there may be no advance or extensions of credit made at
the time of the execution hereof and although there may be no indebtedness
outstanding at the time any advance or extension of credit is made. Such unpaid
balances of loan advances and other extensions of credit may or may not be
evidenced by notes executed pursuant to the applicable Relevant Documents.
Section 5.09. Usury Savings. It is the intention of the parties
hereto to conform strictly to applicable usury laws. Accordingly, if the
transactions contemplated hereby would be usurious under any such applicable
law, then, and in that event, notwithstanding anything to the contrary in this
Instrument, the Notes, the Indentures, the other Relevant Documents, and any
other instrument or agreement entered into in connection therewith, whether now
existing or hereafter arising and whether written or oral, it is agreed as
follows:
(a) the aggregate of all interest and any other charges
constituting interest or adjudicated as constituting interest and that is
contracted for, charged or received under the Notes, the New Bonding Facility
Agreement, or any other Relevant Document, or under any of the aforesaid
instruments or agreements or otherwise in connection with the Notes, the New
Bonding Facility Agreement, or any other Relevant Document (whether designated
as interest, fees, late charges, payments or otherwise) shall under no
circumstances exceed the maximum amount of interest permitted by any applicable
usury law and any excess shall be cancelled automatically and, if theretofore
paid, shall be credited on the Notes, the New Banking Facility Agreement and all
the other obligations under the other Relevant Documents by Beneficiary in
accordance with the Intercreditor Agreement (or, if the Notes, the New Banking
Facility Agreement and all other obligations under the Relevant Document have
been paid in full, refunded by the Secured Creditors to Trustor); and
15
(b) in the event that the maturity of the Secured
Obligations is accelerated by reason of an Enforcement Event, then such
consideration that constitutes interest may never include more than the maximum
rate of interest permitted by any such applicable law computed from the dates of
each advance of the loan proceeds outstanding until payment. If from any
circumstance Beneficiary shall ever receive interest or any other charges
constituting interest or adjudicated as constituting interest, the amount, if
any, which would exceed the maximum rate of interest permitted by applicable
usury law shall be applied to the reduction of the principal amount owing on the
Notes, the New Bonding Facility Agreement and under the other Relevant Documents
or on account of any other principal indebtedness Trustor and the Issuer under
the Relevant Documents, and not to the payment of interest; or if such excessive
interest exceeds the unpaid balance of the principal and such other
indebtedness, the amount of such excessive interest that exceeds the unpaid
principal and such other indebtedness shall be refunded to Trustor by the
Secured Creditors.
All sums paid or agreed to be paid to Beneficiary for the use,
forbearance or detention of the indebtedness evidenced hereby shall, to the
extent permitted by applicable law and the Intercreditor Agreement, be
amortized, prorated, allocated and spread throughout the full term of such
indebtedness so that the rate or amount of interest on account of any such
indebtedness does not exceed the applicable usury ceiling.
Section 5.10. Invalid Provisions to Affect No Others. In the event
that any of the covenants, agreements, terms or provisions contained in this
Instrument shall be invalid, illegal or unenforceable in any respect, the
validity of the remaining covenants, agreements, terms or provisions contained
herein or in any other Relevant Documents shall not be in any way affected,
prejudiced or disturbed thereby. In the event that the application of any of the
covenants, agreements, terms or provisions of this Instrument is held to be
invalid, illegal or unenforceable, those covenants, agreements, terms and
provisions shall not be in any way affected, prejudiced or disturbed when
otherwise applied.
Section 5.11. Changes. Neither this Instrument nor any term hereof
may be changed, waived, discharged or terminated orally, or by any action or
inaction, but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. To the
extent permitted by law, any agreement hereafter made by Trustor and Trustee or
Beneficiary relating to this Instrument shall be superior to the rights of the
holder of any intervening lien or encumbrance.
Section 5.12. Marshalling of Assets. Notice is hereby given that no
holder of any mortgage, lien or other encumbrance affecting all or a part of the
Mortgaged Property which is inferior to the lien of this Instrument shall have
any right to require Beneficiary to marshal assets.
Section 5.13. Trustee's Rights Regarding the Mortgaged Property. At
any time or from time to time, without liability therefor and without notice,
upon written request of Beneficiary, payment of its fees and presentation of
this Instrument without affecting the liability of any person for the payment of
the Secured Obligations, Trustee may (a) consent to the making of any map or
plot of the Land, (b) join in granting any easement or creating any restriction
thereon, (c) join in any subordination or other agreement, affecting this
Instrument or the lien or charge thereof, or (d) reconvey or release from the
lien of this Instrument, without warranty, all or any part of the Mortgaged
Property.
Section 5.14. Time of Essence. Time is of the essence with respect
to the provisions of this Instrument.
Section 5.15. Appointment of Successor Trustee. At the option of
Beneficiary, with or without any reason, and from time to time, a successor or
substitute trustee may be appointed by Beneficiary or
16
any successor in ownership of any indebtedness secured hereby, without any
formality other than a designation in writing of a successor or substitute
trustee, who shall, without conveyance from Trustee predecessor, thereupon
become vested with and succeed to all the title, estate, powers and duties given
to Trustee herein named, the same as if the successor or substitute trustee had
been named original Trustee herein; and such right to appoint a successor or
substitute trustee shall exist as often and whenever Beneficiary desires. An
instrument, executed by Beneficiary and duly acknowledged and recorded in the
office of the recorder of the county or counties where the Mortgaged Property is
situated, shall be conclusive proof of proper substitution of such successor
trustee or trustees. Said instrument should contain the name of the original
Trustor, Trustee and Beneficiary hereunder, the recording information where this
Instrument is recorded and the name and address of the new trustee.
Section 5.16. Relevant Documents Revisions. In this Instrument,
references to this Instrument or to easement agreements, Leases, the
Intercreditor Agreement, and any other Relevant Documents include all
amendments, supplements, consolidations, replacements, restatements, extensions,
renewals and other modifications, to the extent applicable, and any refinancings
and refundings thereof, in whole or in part.
Section 5.17. WAIVER OF JURY TRIAL. TRUSTOR AND BENEFICIARY
EXPRESSLY AND VOLUNTARILY WAIVE ANY AND ALL RIGHTS, WHETHER ARISING UNDER THE
UNITED STATES OR ANY STATE CONSTITUTION, ANY RULES OF CIVIL PROCEDURE, COMMON
LAW OR OTHERWISE, TO DEMAND A TRIAL BY JURY IN ANY ACTION, LAWSUIT, PROCEEDING,
COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF,
THIS INSTRUMENT OR THE OTHER RELEVANT DOCUMENTS, ANY AGREEMENTS ARISING UNDER OR
RELATING TO THIS INSTRUMENT, ANY MORTGAGED PROPERTY SECURING THE SECURED
OBLIGATIONS, OR THE DEALINGS OR RELATIONSHIPS BETWEEN TRUSTOR AND BENEFICIARY.
NEITHER TRUSTOR NOR BENEFICIARY, INCLUDING ANY ASSIGNEE OR SUCCESSOR OF TRUSTOR
OR BENEFICIARY, SHALL SEEK A JURY TRIAL IN ANY SUCH ACTION. NEITHER TRUSTOR NOR
BENEFICIARY SHALL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION WHEN
A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL BE SUBJECT
TO NO EXCEPTIONS. NEITHER TRUSTOR NOR BENEFICIARY HAS IN ANY WAY AGREED WITH OR
REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
Section 5.18. Reduction of Secured Amount. In the event that the
maximum principal amount secured by this Instrument is less than the aggregate
Secured Obligations then the amount secured hereby shall be reduced only by the
last and final sums that Trustor repays with respect to the Secured Obligations
and shall not be reduced by any intervening repayments of the Secured
Obligations. So long as the balance of the Secured Obligations exceeds the
amount secured hereby, any payments of the Secured Obligations shall not be
deemed to be applied against, or to reduce, the portion of the Secured
Obligations secured by this Instrument. Such payments shall instead be deemed to
reduce only such portions of the Secured Obligations as are secured by deeds of
trust or mortgages encumbering real property located outside the State which
secure the entire Secured Obligations (except to the extent, if any, that
specific deeds of trust or mortgages in such states contain specific limitations
on the amount secured).
Section 5.19. FINAL AGREEMENT. THIS DEED OF TRUST REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES HEREIN AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
17
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES. THE NOTICE GIVEN UNDER THIS PARAGRAPH IS PURSUANT TO SECTION 26.02
OF THE TEXAS BUSINESS AND COMMERCE CODE.
[SIGNATURE PAGE FOLLOWS]
18
IN WITNESS WHEREOF, this Instrument is executed as of the day
and year first above written by the person or persons identified below on behalf
of Trustor (and said person or persons hereby represent that they possess full
power and authority to execute this Instrument).
TRUSTOR:
Attest: MARCONI COMMUNICATIONS, INC.
a Delaware corporation
By: __________________________________ By: __________________________________
Name: XXXXX X. XXXXXX Name: XXXXXXXX X. XXXXXXX
Title: ASSISTANT SECRETARY Title: AUTHORIZED SIGNATORY
19
STATE OF ILLINOIS )
:
DU PAGE COUNTY )
I, XXXXXX X. XXXXXXX a Notary Public for said County and
State, hereby certify that Xxxxxxxx X. Xxxxxxx personally appeared before me
this day and acknowledged that she is an Authorized Signatory of MARCONI
COMMUNICATIONS, INC., a Delaware corporation, and that, by authority duly given
and as an act of the corporation, the foregoing instrument was signed by its
Authorized Signatory and attested by XXXXX X. XXXXXX as its Assistant Secretary.
Witness my hand and official seal, this 15TH day of May, 2003.
Notary Public XXXXXX X. XXXXXXX
My commission expires: 5/19/03
[Notarial Seal/Stamp]
(OFFICIAL SEAL XXXXXX X. XXXXXXX)
20
EXHIBIT A
Intersection of Freeport Parkway and Sterling Road
Irving, Texas
Dallas County, Texas
Legal Description of the Premises
Being Lot 4R2, in Block A, of DFW FREEPORT ADDITION, an Addition to the City of
Irving, Texas, according to the Map thereof recorded in Volume 2000229, Page
506, of the Map Records of Dallas County, Texas.
A-1
EXHIBIT B
Permitted Title Exceptions
1. Shortages in Area.
2. Standby fees, taxes and assessments by any taxing authority for the year
2003, and subsequent years; but not those taxes or assessments for prior
years because of an exemption granted to a previous owner of the property
under Section 11.13, Texas Tax Code, or because of improvements not
assessed for a previous tax year.
3. Restrictive covenants recorded in Volume 79212, Page 2965, Deed Records of
Dallas County, Texas. Together with Supplements recorded in Volume 81169,
Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, recorded in Volume 81202,
Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and amendments recorded in
Volume 82129, Page 999, Deed Records, Dallas County, Texas, Volume 82215,
Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, Volume 84106, Page 4294,
Deed Records, Xxxxxx Xxxxxx, Xxxxx, Xxxxxx 00000, Page 000, Xxxx Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxx. Volume 97106, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxx. As affected by Waivers recorded in Volume 84025, Page 0000, Xxxx
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx and Volume 84025, Page 0000, Xxxx Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxx.
4. Easement granted by Xxxx Investment Corporation to the City of Irving,
filed 5/20/1980, recorded in Volume 80101, Page 1966, Deed Records of
Dallas County, Texas, and as shown on survey of Xxxxxxx X. Xxxxxxx, Xx.,
Inc. Consulting Engineers, certified to by G. Xxxxxxx Xxxxx, R.P.L.S.
#4111, dated 7/28/2000, last revised 11/16/2000.
5. Terms and conditions of Ordinance No. 71-100, entitled Airport Zoning
Ordinance of the Dallas-Fort Worth Regional Airport, filed September 2,
1982, recorded in Volume 82173, Page 178, Deed Records of Dallas County,
Texas. As noted on survey of Xxxxxxx X. Xxxxxxx Xx., Inc. Consulting
Engineers, certified to by G. Xxxxxxx Xxxxx, R.P.L.S. #4111, dated
7/28/2000, revised 11/16/2000.
6. Thirty foot building setback line, fifteen foot utility easement, fifty
foot building setback line and thirty seven and one-half foot drainage and
underground utility easement as shown on the plat recorded in Volume
2000229, Page 506, Map Records of Dallas County, Texas. As shown on survey
of Xxxxxxx X. Xxxxxxx Xx., Inc. Consulting Engineers, certified to by G.
Xxxxxxx Xxxxx, R.P.L.S. #4111, dated 7/28/2000, revised 11/16/2000.
7. Terms, provisions, conditions, obligations, assessments and liens contained
in instrument recorded in Volume 79212, Page 2965, Deed Records of Dallas
County, Texas, which states that assessment liens are subordinate to
purchase money liens. Together with Supplements recorded in Volume 81169,
Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, recorded in Volume 81202,
Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and Amendments recorded in
Volume 82129, Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, recorded in
Volume 82215, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, recorded in
Volume 84106, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, recorded in
Volume 95157, Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, recorded in
Volume 97106, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
8. Consequences, if any, of the encroachment of the asphalt parking over the
southwest property line, as shown on survey of Xxxxxxx X. Xxxxxxx Xx., Inc.
Consulting Engineers, certified to by G. Xxxxxxx Xxxxx, R.P.L.S. #4111,
dated 7/28/2000, revised 11/16/2000.
B-1
9. Assignment of Rents dated May ___, 2003 and effective May 19, 2003 by
Marconi Communications, Inc. to The Law Debenture Trust Corporation p.l.c.,
a public limited company organized under the laws of England and Wales
(together with any co-trustee, co-agent or other entity appointed pursuant
to Clause 16 of the Intercreditor Agreement (as defined in the insured
mortgage), in its capacity as security trustee for the "Secured Creditors"
(as defined in the Intercreditor Agreement), their successors and/or
assigns as their interests may appear, to be recorded in Dallas County.
10. UCC Financing Statement from Marconi Communications, Inc., as debtor, to
The Law Debenture Trust Corporation p.l.c., as security trustee, to be
filed in Dallas County.
B-2
