Exhibit 10.3
Assessors Parcel # 00-000-00
Mail Tax Bills To:
TREX Company, LLC
000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
DEED OF TRUST,
SECURITY AGREEMENT
AND
ASSIGNMENT OF LEASES AND RENTS
Granted By
TREX COMPANY, LLC
-----------------
a Delaware limited liability company
(for purposes of recording, the "Trustor")
To
WESTERN TITLE COMPANY, INC.
(for purposes of recording, the "Trustee")
Trustee
Securing
FIRST UNION NATIONAL BANK,
-------------------------
A National Banking Association
(for purposes of recording, the "Grantee")
This Document was Prepared By: Dated September 30, 2001
Xxxxx X. Tower
Xxxxx Xxxx LLP
0000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
TO FILING OFFICER, AFTER RECORDATION RETURN TO:
Xxxxx X. Tower
XXXXX XXXX LLP
0000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
To Be Recorded In the Land
Records Offices of the City
Of Lyon County, Nevada.
DEED OF TRUST,
SECURITY AGREEMENT
AND
ASSIGNMENT OF LEASES AND RENTS
Granted By
TREX COMPANY, llc
A DELAWARE LIMITED LIABILITY COMPANY
To
WESTERN TITLE COMPANY, INC.
A NEVADA CORPORATION
Trustee
DEFINITIONS
As used throughout this Deed of Trust, the following terms shall have the
following meanings:
"Act" shall have the meaning as set forth in Section 1.16 of this Deed of
Trust;
"Beneficiary" shall mean First Union National Bank, a National Banking
Association, its successors and assigns;
"Clerk's Office" shall mean collectively the land records of Lyon County,
Nevada.
"Code" shall mean the Nevada Revised Statutes, as amended and now enacted;
"Credit Agreement" shall mean that certain Second Amended and Restated
Credit Agreement between Trustor, Trex Company, Inc. and Beneficiary dated as of
the date hereof;
"Deed of Trust" shall mean this deed of trust, security agreement and
assignment of leases and rents granted by the Trustor to the Trustees;
"Easement" shall have the meaning as set forth in Section 7.1 of this Deed
of Trust;
"Event of Default" shall mean, individually, and "Events of Default" shall
mean, collectively, those items as listed in Article III of this Deed of Trust,
which shall entitle the Trustees or the Beneficiary to exercise all rights and
remedies provided in Article IV of this Deed of Trust;
"Hazard" shall have the meaning as set forth in Section 1.16 of this Deed
of Trust;
"Improvements" shall mean all buildings, structures, improvements and
replacements, now or hereafter existing on or to be erected upon the Land and
any and all landscaping and related amenities and facilities;
"Land" shall mean all that parcel of land situated in Lyon County, Nevada,
as more particularly described on Exhibit "A" attached to this Deed of Trust and
made a part thereof;
"Leases" shall have the meaning as set forth in Section 6.1 of this Deed
of Trust;
"Loan" shall mean the financing extended by the Beneficiary to the Trustor
and Trex Company, Inc. as more particularly described in the Credit Agreement
and evidenced by the Promissory Note;
"Loan Documents" shall mean the Promissory Note, the Deed of Trust, the
Credit Agreement and such other documents and writings executed and delivered by
Trustor and such other signatory parties to the Beneficiary, evidencing,
securing or otherwise documenting the terms and conditions of the Loan, as the
Promissory Note, the Deed of Trust, and such other documents may be amended,
modified, replaced or amended and restated in their entirety in the future;
"Obligations" shall have the meaning as set forth in the granting clause
of this Deed of Trust;
"Personalty" shall have the meaning as set forth in the granting clause of
this Deed of Trust;
"Promissory Note" shall mean collectively, the term note in the original
principal amount of $3,780,000, the term note in the original principal amount
of $1,035,000, the term note in the original principal amount of $5,940,000; the
term note in the original principal amount of $58,000,000 and the revolving note
in the maximum principal amount of $17,000,000 between Trustor and Trex Company,
Inc., as Borrower, and Beneficiary, all dated as of the date hereof;
"Real Property" shall mean the Land and the Improvements;
"Rent" shall have the meaning as set forth in Section 6.1 of this Deed of
Trust;
"Secured Property" shall have the meaning as set forth in the granting
clause of this Deed of Trust;
"Trustees" shall mean Western Title Company, Inc..
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DEED OF TRUST,
SECURITY AGREEMENT
AND
ASSIGNMENT OF LEASES AND RENTS
THIS DEED OF TRUST, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
(the "Deed of Trust") is made and granted as of the 30th day of September, 2001,
by TREX COMPANY, LLC, a Delaware limited liability company, with an address of
000 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000 (the "Trustor"), to Western
Title Company, Inc. (Trustee"), for the benefit of Beneficiary.
RECITALS
A. The Trustor holds fee simple title to the Land and conveys its fee
simple interest in the Land and other Secured Property, as provided further
herein as security for the payment and performance of all obligations of the
Trustor secured by this Deed of Trust
B. In addition to the Promissory Note and this Deed of Trust, the Loan is
further evidenced by the other Loan Documents, as such Loan Documents may be
amended, modified, replaced or amended and restated in their entirety in the
future.
GRANT
NOW, THEREFORE, in consideration of the premises, and to secure: (a) the
payment of the principal, interest, and other sums due on the Promissory Note,
this Deed of Trust, and any other Loan Document, and any and all other
indebtedness of the Trustor to the Beneficiary, whether now existing or
hereinafter incurred, as well as all future advances, as and when due, (b) the
observance and performance of all of the terms, conditions, agreements, and
provisions of the Promissory Note, this Deed of Trust, and all other Loan
Documents, including the repayment of all sums advanced, to be advanced, or
which may be advanced by the Beneficiary pursuant to or under authorizations
contained in this Deed of Trust, even if and to the extent such sums may exceed
the face amount of the Promissory Note, this Deed of Trust and any other Loan
Document, and (c) any and all other future indebtedness of Trustor to
Beneficiary (collectively, the "Obligations"), the Trustor grants, pledges,
assigns, transfers, and conveys to the Trustees, in trust, with power of sale,
all that lot of ground situated and lying in Lyon County, Nevada and more
particularly described on Exhibit "A" attached hereto and made a part hereof;
TOGETHER WITH any additional or other interest in the Land that the
Trustor may hereafter acquire; and
TOGETHER WITH all of the Trustor's right, title and interest in and to all
Improvements; and
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TOGETHER WITH all of the Trustor's right, title and interest in and to all
plant, equipment, apparatus, machinery, fittings, appliances, furniture,
furnishings, fixtures and other chattels and personal property and replacements
thereof, owned by the Trustor and now or at any time hereafter affixed or
attached to, incorporated in, placed upon, or in any way used in connection with
the current or future utilization, enjoyment, occupation, or operation of the
Real Property including by way of example and not by way of limitation, all
lighting, heating, ventilating, air conditioning, incinerating, sprinkling,
laundry, lifting and plumbing fixtures and equipment, water and power systems,
loading and unloading equipment, burglar alarms and security systems, fire
prevention and fire extinguishing systems and equipment, engines, boilers,
ranges, refrigerators, stoves, furnaces, oil burners or units, communication
systems and equipment, dynamos, transformers, motors, tanks, electrical
equipment, elevators, escalators, cabinets, partitions, ducts, compressors,
switchboards, storm and screen windows and doors, pictures, awnings and shades,
sign and shrubbery as well as all building and construction materials and
supplies of every kind, nature and description owned by the Trustor and located
on, at, or about the Real Property, whether or not yet incorporated into any
building, structure, or improvement, or located elsewhere and not as yet
delivered to the Real Property, which are intended to be used for the purpose of
erecting, renovating, restoring, or repairing any building, structure, or
improvement on the Real Property, including by way of example and not by way of
limitation, all steel, iron, concrete, sheet rock and plaster board, screws,
paint, plaster, plastics, insulation, fiberglass, wood and wood products, glass,
bricks, mortar, masonry, pipes, wiring, linoleum and tile and other floor and
wall coverings, roofing and roofing materials, framing and molding
(collectively, the "Personalty"), as to all of which the Trustor grants and
conveys to the Beneficiary a continuing security interest under the Nevada
Uniform Commercial Code, as amended, as well as in any and all proceeds and
products thereof and all substitutions, renewals and replacements thereof,
whether now owned or hereafter acquired, for so long as such items are or remain
personal property and not fixtures and permanent additions to the Real Property;
and
TOGETHER WITH all contracts, plans, and specifications, surveys and
surveyor's reports, engineer's reports, diagrams and drawings, all licenses,
permits and approvals and applications therefor from governmental authorities,
deposits, service contracts, books, records, reports, accounting records,
invoices, change orders, correspondence, diagrams, drawings, schematics, sales
and promotional literature and forms, advertising materials and the like,
wherever located and whenever created, compiled, or made with respect to the
construction of the Improvements upon the Land and the leasing of space in the
completed Improvements, and the Trustor hereby grants to the Beneficiary a
continuing security interest under the Nevada Uniform Commercial Code in and to
all of the same, and the proceeds, including insurance proceeds, and products
thereof, and in all substitutions, renewals, and replacements thereof, now
existing or hereafter acquired; and
TOGETHER WITH a security interest to Beneficiary, which is hereby granted
by the Trustor, in all amounts that may be owing at any time and from time to
time by the Beneficiary to the Trustor in any capacity, including, but not
limited to, any balance or share belonging to the
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Trustor in any deposit or other account with the Beneficiary, which accounts
shall specifically include the escrow accounts that may be established in
accordance with the terms of this Deed of Trust with regard to real property
taxes, insurance payments, security deposits, and the like; and
TOGETHER WITH all easements, rights, privileges, and appurtenances
thereunto belonging or in any way appertaining, and all of the right, title,
interest, estate, or claim of the Trustor in or to the streets, ways, alleys,
and waters adjoining or adjacent to the Real Property, whether now existing or
hereafter acquired; and
TOGETHER WITH all mineral rights, and mining rights, as well as all
minerals, dirt, sand, gravel, pebbles, stones, rocks, soil and the like
(including oil and gas) which have not been extracted from the Land; and
TOGETHER WITH all rights, benefits, profits, rents, and monies payable
under, by reason of, or with respect to any restrictive covenants, easements,
agreements applicable to adjoining lands, or contracts of sale with respect
thereto with the right to collect any sums of money at any time payable to the
Trustor in consequence of such rights and benefits, including the release,
modification, or amendment thereof, for application to sums then due and owing
the Beneficiary under the Promissory Note, this Deed of Trust or any other Loan
Document and to utilize any collection or enforcement rights or remedies to
collect the same available to the Trustor under law, as to all of which, and the
proceeds and products thereof, the Trustor hereby grants a continuing security
interest therein and thereto unto the Beneficiary; and
TOGETHER WITH: (a) all of the proceeds of the voluntary or involuntary
conversion of the aforementioned property or any part of the aforementioned
property into cash or liquidated claims, whether by way of condemnation, insured
casualty, judgment or otherwise, as well as a security interest which is hereby
granted to the Beneficiary in the same; (b) all rents, profits, and benefits,
including any deposits of tenants to secure payment of the same and performance
of the terms and conditions of any oral or written lease, with respect to the
leasing of all or any portion of the Real Property, with the right to collect
such rents, profits, and benefits at any time for application to sums then due
and owing the Beneficiary under the Promissory Note, this Deed of Trust or any
other Loan Document, and to utilize any collection or enforcement rights or
remedies available to the Trustor under law or any written lease, but without
any duty or obligation to perform on behalf of the Trustor any of the Trustor's
duties or obligations to any lessee; and (c) a security interest in all revenues
and profits, accounts receivable and contract rights, including any deposits of
purchasers to secure payment of the contract price and performance of the terms
and conditions of any contract of sale for the Real Property, with the right to
collect the same at any time for application to sums then due and owing the
Beneficiary under the Promissory Note, this Deed of Trust or any other Loan
Document and to utilize any collection or enforcement rights or remedies
available to the Trustor under law or any contract of sale, but without any duty
or obligation, to perform on behalf of the Trustor any of the Trustor's duties
or obligations to any purchase of the Real Property;
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TO HAVE AND TO HOLD all of the aforementioned property (collectively, the
"Secured Property") to the Trustees, and the Trustees' successors and assigns,
in trust with power of sale to the Trustees to secure the Obligations provided
that, so long as no Event of Default shall have occurred, the Trustor shall have
the license to possess and enjoy the Secured Property, and to receive the rents,
issues and profits therefrom, subject, however, to the provisions of the Loan
Documents; and further provided, that if all of the Obligations are fully paid
and satisfied and performed and/or observed, then the lien of this Deed of Trust
shall be released by the Beneficiary and the Trustees, and the Trustees shall
then, upon the written request of the Trustor, release, terminate, and reconvey
the Secured Property to the Trustor at the sole cost and expense of the Trustor.
ARTICLE I
COVENANTS AND AGREEMENTS OF THE TRUSTOR
1.1. Repayment. The Trustor shall pay all indebtedness secured by this
Deed of Trust, together with interest thereon and any penalty, fee, charge,
deposit, escrow or assessment, at the times and in the manner and amounts set
forth in the Promissory Note and other Loan Documents.
1.2. Performance. The Trustor shall perform and observe all duties,
obligations, and requirements and shall comply in all respects with the terms,
covenants, conditions, representations and warranties of the Promissory Note,
this Deed of Trust and all other Loan Documents.
1.3. Taxes and Expenses. The Trustor shall pay and discharge, when and as
the same come due, before penalty or premium attaches, all taxes of every kind
and nature, real and personal, all general and special assessments and levies,
all water, sewer and other utility charges, rents, and assessments and any and
all other public charges, dues, levies, impositions, or assessments of a like or
different nature, imposed upon or assessed against the Secured Property or the
rents, issues, income or profits thereof, which are or may become liens against
the same, as well as any ground rent to which the Real Property may be subject,
and the Trustor will not permit to exist any lien or security interest therefor
other than: (a) liens for taxes, assessments, levies, fees, rents, ground rents,
and public charges not yet delinquent or which are being contested in good
faith; and (b) liens and security interests which the Beneficiary has
specifically and in writing consented to the existence of and with respect to
which the Trustor has paid currently all sums secured thereby. The Trustor will,
upon the request of the Trustees or the Beneficiary, deliver to the Trustees or
the Beneficiary receipts evidencing the payment of all such taxes, assessments,
levies, fees, rents, ground rents, and public charges imposed upon or assessed
against the Secured Property (provided, however, that Trustor may withhold any
such payment if Trustor contests in good faith the validity of such payment, and
may continue to withhold such payment pending the resolution of the dispute so
long as Beneficiary is provided with adequate security, as reasonably determined
by Beneficiary, for the payment of the withheld amount and any potentially
applicable interest and penalties and such contest does not in the
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reasonable opinion of Beneficiary put the Secured Property or any portion
thereof at risk of any tax lien foreclosure), or the revenues, rents, issues,
income, or profits thereof, as well as the payment of all superior liens and
security interests with respect to which the Beneficiary may have consented.
1.4. Insurance. The Trustor shall obtain and shall at all times during the
term hereof maintain the following insurance coverages:
1.4.1. Casualty Insurance. The Trustor shall keep any Improvements
constructed on the Land and Personalty thereon insured against loss by fire
casualty, and such other hazards and contingencies, including but not limited to
lightning, hail, windstorm, explosion, malicious mischief and vandalism, as are
covered by extended coverage policies in effect in the area where the Land is
located and such other risks as may be reasonably specified by the Beneficiary
from time to time, all for the benefit of the Beneficiary; provided that, during
any period of construction, restoration or reconstruction of the Improvements,
the Trustor shall provide in lieu of such insurance, builders' risk or a similar
type of insurance in the amount of the full replacement cost of the Improvements
and the equipment. Such insurance shall be written on policy forms and by Lloyds
of London or an insurance company lawfully operating in the jurisdiction in
which the Real Property is located with a rating of "A-" or better according to
A.M. Best Co. Insurance Guide and reasonably satisfactory to the Beneficiary,
shall be in an amount equal to the lesser of the outstanding principal balance
of the Obligations or the full insurable replacement cost of any such
Improvements and Personalty, but in any event shall be in an amount sufficient
to prevent co-insurance liability, shall name the Beneficiary as a mortgagee and
sole loss payee and shall be endorsed such that the losses thereunder shall be
payable to the Beneficiary and not to the Trustor and the Beneficiary or the
Trustees, jointly. The policy or policies of such insurance shall include a
replacement cost or restoration endorsement and a waiver of subrogation
endorsement reasonably satisfactory to the Beneficiary. Original certificates or
at Beneficiary's request, originals or certified true copies, of the policy or
policies of such insurance and all renewals thereof shall be delivered to and
retained by the Beneficiary, and the Trustor shall provide the Beneficiary with
receipts evidencing the payment of all premiums due on such policies and the
renewals thereof on or prior to the renewal or expiration date thereof. All
policies required hereby shall provide and shall bear an endorsement that the
insurer shall endeavor to notify Beneficiary not less than ten (10) days prior
to any cancellation, termination, endorsement or material amendment (i.e.
reduction in coverage). The Trustor shall give the Beneficiary prompt notice of
any loss covered by such insurance, and, the Beneficiary shall have the right to
adjust and compromise such loss, to collect, receive and receipt the proceeds of
insurance for such loss and to endorse the Trustor's name upon any check in
payment thereof and, for such purposes the Trustor hereby constitutes and
appoints the Beneficiary as its attorney in fact with the power of attorney
granted hereby deemed to be coupled with an interest and irrevocable. All monies
received as payment for a loss covered by an insurance policy shall be paid over
to the Beneficiary, as its interests may appear. The Beneficiary shall, after
deducting the reasonable expenses incurred in the collection of the proceeds of
any insurance, make the remainder of such proceeds available to the Trustor for
the payment of charges or expenses actually incurred by the Trustor in the
restoration, reconstruction, repair, renovation or
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replacement of the affected Improvements and Personalty, provided that: (i) the
Beneficiary has approved the plans and specifications for the repair or
restoration of the damaged portion of the Improvements and Personalty, the
contract for such repair or restoration and the contractor that will perform the
same, (ii) the Trustor has deposited with the Beneficiary (or if permitted by
the Beneficiary, has made provision satisfactory to the Beneficiary for the
payment of) any amounts required for such repair or restoration which exceed the
available insurance proceeds, (iii) no Event of Default, or event that with the
passage of time would constitute an Event of Default, has occurred and is
continuing under the Loan Documents, (iv) the repair or restoration of the
Improvements and Personalty reasonably can be completed before the maturity date
of the Loan, and (v) the tenants will continue to pay rent without abatement (or
the proceeds of business interruption insurance will be adequate in the
Beneficiary's judgment to offset any such abatement of rent), otherwise, such
proceeds shall be applied in payment of the Obligations.
1.4.2. Liability and Worker's Compensation Insurance. The Trustor
shall obtain and maintain public liability and property damage insurance in such
amounts, with such insurance companies, and upon policy forms acceptable to and
reasonably approved by the Beneficiary, naming the Beneficiary as an additional
insured. Additionally, if Trustor has any employees, the Trustor shall obtain
and maintain worker's compensation insurance in such amounts, with an insurance
company, and in a form acceptable to and approved by the Beneficiary. The
Trustor shall supply to the Beneficiary a copy of the aforesaid liability
insurance policies and receipts evidencing the payment of premiums due thereon
or, alternatively, certificates from the insurance company certifying to the
existence of the policies, summarizing the terms of the policies, and indicating
the payment of premiums due thereon. Each of the policies specified herein shall
provide that the insurer shall endeavor to provide Beneficiary with ten (10)
days prior notice of any material modification (i.e. reduction in coverage) or
cancellation.
1.4.3. Rental Loss Interruption Insurance. The Trustor shall also
carry and maintain rental interruption insurance on the Trust Property in the
same manner and under the same conditions as provided in 1.4.1 covering debt
service, real estate taxes and insurance premiums for a period of at least
twelve (12) months.
1.4.4. Flood Insurance. In the event that all or any portion of the
Real Property currently or at any time in the future is determined to be located
in a specially designated flood hazard area by the Secretary of Housing and
Urban Development or the Director of the Federal Emergency Management Agency,
pursuant to the provisions of the National Flood Insurance Act of 1968, or the
Flood Disaster Protection Act of 1973, as amended, the Trustor shall obtain and
maintain flood hazard insurance in the full insurable value of the Improvements
or any portion of the Real Property located within such area, or the full amount
of flood insurance available, naming the Beneficiary as sole loss payee and
complying with all applicable provisions of Section 1.4.1. hereof. The Trustor
shall be required to provide flood hazard insurance as described, unless the
Trustor's insurance broker or surveyor certifies to the Beneficiary in writing
that the Real Property is not in a flood hazard area. The proceeds of any loss
payable under a
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flood insurance policy shall be applied, at the option of the Beneficiary, as
set forth in Section 1.4.1. above with respect to casualty insurance proceeds.
1.4.5. Separate Insurance. The Trustor may not take out separate
insurance concurrent in form or contributing in the event of loss with that
required to be maintained hereunder unless the Beneficiary is included thereon
as a named insured with losses payable to the Beneficiary as above provided. The
Trustor shall immediately notify the Beneficiary whenever any such separate
insurance is taken out and shall promptly deliver to the Beneficiary
certificates, or if requested by Beneficiary the policy or policies, of such
insurance.
1.5. Advancements. If the Trustor should fail to perform any of the
covenants contained in this Deed of Trust, or to protect or preserve the Secured
Property or the status and priority of the lien and security interest of this
Deed of Trust, the Beneficiary may, but shall not be obligated to, make advances
to perform the same on behalf of the Trustor or to protect or preserve the
Secured Property or the status and priority of the lien and security interest of
this Deed of Trust, and all sums so advanced shall immediately upon advancement
become a lien and security interest upon the Secured Property and shall be
secured by this Deed of Trust. For the purposes of taking any and all acts as
set forth in this Section 1.5., the Trustor hereby constitutes and appoints the
Beneficiary as its attorney in fact and the power of attorney granted hereby
shall be deemed to be coupled with an interest and irrevocable. The Trustor,
will repay on demand all sums so advanced on the Trustor's behalf, plus any
expenses or costs incurred by the Trustees or the Beneficiary, including
reasonable attorneys fees, with interest thereon at the highest rate of interest
permitted under the Promissory Note. The provisions of this Section shall not be
construed to prevent the institution of foreclosure or other rights and remedies
of the Trustees upon the occurrence of an Event of Default hereunder.
1.6. Condition and Use of Improvements. The Trustor will not commit any
waste on the Secured Property or make any change in the use of the Secured
Property which will in any way increase any ordinary fire or other hazard
insurance risk arising out of the construction of improvements on or operation
of the Secured Property or at any time abandon the Secured Property. The Trustor
will at all times maintain and keep the Secured Property in good operating order
and condition, ordinary wear and tear excepted, and will promptly make, from
time to time, all repairs, renewals, replacements, additions, and improvements
to so maintain the Secured Property. The Trustor will comply with all statutes,
ordinances, rules, regulations, or laws affecting the Secured Property or the
use thereof. The Improvements shall not be removed, demolished or substantially
altered, nor shall any material Personalty be removed therefrom, without the
prior written consent of the Trustees or the Beneficiary, which consent shall
not be unreasonably withheld, conditioned or delayed, except that no consent
shall be required where appropriate replacements, free of superior title, liens,
security interests, or claims, and of a value at least equal to the value of the
Personalty removed, are immediately made. Upon receipt of written notice the
Trustor will permit the Trustees or the Beneficiary, or their agents or
employees, at all reasonable times to enter and inspect the Secured Property.
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1.7. Title to Real Property; Liens. The Trustor has as of the date hereof,
and shall maintain at all times during the term of this Deed of Trust, good and
marketable title to the Secured Property free and clear of any and all liens,
charges, restrictions, encumbrances, security interests and adverse claims
whatsoever, excepting any liens, charges, restrictions, encumbrances or security
interests which: (a) are set forth in the title insurance policy issued in favor
of, and approved by, the Beneficiary with respect to the Secured Property; (b)
are expressly permitted by the provisions of this Deed of Trust or any of the
other Loan Documents; (c) are granted to the Beneficiary; or (d) are consented
to in writing by the Beneficiary.
1.8. Transfer or Encumbrance; Change of Control. Except as may be
permitted under the Credit Agreement, title to all or any portion of the Secured
Property may not be acquired by any person, individual, partnership, or
corporation by voluntary or involuntary conveyance, transfer, grant or
assignment, by operation of law, or in any other manner, nor shall the Secured
Property become encumbered or charged with a lien or security interest of any
kind or variety, excepting the mortgages or deeds of trust disclosed in writing
to and approved in writing by the Beneficiary, and other "Permitted Liens" as
defined in the Credit Agreement, whether voluntary or involuntary, including any
mechanic's or materialmen's lien or judgment lien, senior, junior, or of equal
priority to the lien and security interest of this Deed of Trust, without the
prior written consent of the Trustees or the Beneficiary. A conveyance,
transfer, grant, or assignment of, or a pledge, encumbrance, or creation of a
lien or security interest in any interest in the Trustor, whether or not a
conveyance, transfer, grant, or assignment of or a pledge, encumbrance, or
creation of a lien or security interest in the membership interests in Trustor
is with respect to all or only a part of the total number of outstanding
membership interests, shall be considered to be a transfer or encumbrance of the
Secured Property and subject to the provisions of this Section. Except as
consented to by the Beneficiary in writing, control and management of the
Secured Property shall be vested as presently owned by the Trustor and may not
be transferred, assigned or conveyed to or acquired by any person. The contrary
notwithstanding, in the event the ownership of the Secured Property becomes
vested in a person, individual, partnership, or corporation or limited liability
company other than the Trustor, the Trustees or the Beneficiary may, without
notice to the Trustor, deal with such successor or successors in interest with
reference to this Deed of Trust and the indebtedness secured by it in the same
manner as with the Trustor, and any extension of the time of the indebtedness or
any other modifications of the terms of the indebtedness at the instance of the
then owner of the Secured Property shall not relieve the Trustor of the
Trustor's liability on the Promissory Note hereby secured or from the
performance of any of the covenants and agreements contained herein or any of
the covenants, terms, conditions, provisions, representations, or warranties
contained in the Loan Documents, whether the extension or modification be made
with or without the consent of the Trustor; provided Trustor shall not be bound
by modifications made without its consent.
1.9. Condemnation. The Trustor, within seven business days of obtaining
knowledge of the institution of any proceedings for the taking or condemnation
of the Secured Property or any portion thereof, or any interest therein or right
accruing thereto, will notify the Trustees and the Beneficiary of the pendency
of such proceedings, describing in detail the nature and extent of such taking
or condemnation. The Trustees or the Beneficiary may participate in any such
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proceedings and the Trustor from time to time will deliver to the Trustees or
the Beneficiary all instruments requested by them to permit such participation.
Until the occurrence of an Event of Default, the Trustees or Beneficiary shall
not participate in any hearings without the presence of Trustor nor shall the
Trustees or the Beneficiary accept or negotiate the amount of any such award
without the Trustor's written consent. The Trustees or the Beneficiary shall be
under no obligation to question the amount of any such award or compensation and
may accept the same in the amount in which the same shall be paid. In any such
condemnation proceedings, the Trustees or the Beneficiary may be represented by
counsel selected by them and the Trustor shall pay, the reasonable attorneys'
fees incurred by them at the Trustor's sole expense. The proceeds of any award
or compensation so received shall be, and hereby are, assigned by the Trustor to
the Beneficiary, shall be payable to the Beneficiary and, if less than a
substantial portion of the Secured Property is damaged, taken or transferred in
a condemnation, or if the Beneficiary does not elect to accelerate the Loan as a
consequence of such condemnation, then the Beneficiary may require the Trustor
to repair, restore or replace the Secured Property or the affected portion
thereof as nearly as practical to its condition immediately before the
condemnation, and in such event any net proceeds of the condemnation will be
applied to the costs of such repair, restoration or replacement. The term
"substantial portion" as used above and further herein means so much of the
Secured Property as will have, in the Beneficiary's opinion, a material effect
on the use and occupancy of the Secured Property or on the ability of the
Trustor to make required payments of principal and interest on the Promissory
Note.
1.10. Future Advances. The Beneficiary may make future advances to the
Trustor and may advance or readvance funds to the Trustor and all such future
advances and readvances shall be fully secured by the lien and security interest
of this Deed of Trust.
1.11. Status. Except as otherwise permitted under the Credit Agreement,
the Trustor shall maintain in full force and effect the Trustor's status as a
validly existing limited liability companies under the laws of the State of
Delaware and the Commonwealth of Virginia and all rights and privileges incident
thereto.
1.12. Estoppel Certificate. The Trustor shall, upon written notice,
deliver within ten (10) days of the giving of such notice, a written statement,
duly acknowledged, setting forth the amount of principal, interest, penalty, and
other charges or assessments due the Beneficiary as of the notice date and
whether any offsets or defenses are known to exist against any of the same.
1.13. Compliance with Laws; Restrictive Covenants. The Trustor shall
comply with all applicable rules and regulations of the federal, state, and
local governmental authorities having jurisdiction over the Secured Property;
the Trustor shall also comply with all restrictions, covenants, easements and
other limitations on the use of the Secured Property contained in documents of
public record.
1.14. Preservation of Lien. The Trustor shall take all reasonable steps
and do all things necessary, convenient, or proper, to establish, protect,
preserve, and maintain the priority and
11
status of the lien and security interest in the Secured Property established or
intended to be established by this Deed of Trust.
1.15. Further Assurances. In addition to the acts recited herein and
contemplated to be performed, executed and/or delivered by the Trustor, the
Trustor hereby agrees at any time and from time to time to perform, execute
and/or deliver to the Beneficiary upon request, any and all such further acts,
additional instruments, or further assurances as may be reasonably necessary or
proper to: (i) promptly correct any defect, error or omission which may be
discovered in this Deed of Trust or any other Loan Document, and execute any and
all additional documents, as may be requested by the Beneficiary to correct such
defect, error or omission; (ii) assure the Beneficiary a valid second priority
lien and second priority perfected security interest in the Secured Property;
(iii) create, perfect, preserve, maintain and protect the liens and security
interests created or intended to be created hereby; and (iv) provide the rights
and remedies to Beneficiary granted or provided for herein. The Trustor shall,
upon ten (10) business days written notice from the Beneficiary, execute and
deliver such additional deeds of trust, supplemental deeds of trust, financing
statements, continuation statements or other instruments and documents which may
be reasonably required from time to time by the Beneficiary to provide the
further assurances as above set forth. If the Trustor fails, within such ten
(10) business day period to execute and deliver to the Beneficiary such required
further assurances, the Trustor shall thereupon automatically and irrevocably
have appointed and constitute and appoint the Beneficiary as the Trustor's
attorney in fact for the purpose of executing such required further assurances,
the power of attorney hereby given being a power of attorney coupled with an
interest and irrevocable.
1.16. Environmental Protection. The Trustor represents and warrants that:
(i) the Trustor has no knowledge of any discharge, spillage, uncontrolled loss,
seepage or filtration of oil, petroleum or chemical liquids or solids, liquid or
gaseous products or any hazardous waste or hazardous substance (the "Hazard"),
as those terms are used in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C ss.ss.9601 et seq., as amended
by the Superfund Amendments and Reauthorization Act of 1986; the Resource
Conservation and Recovery Act of 1976. (the Solid Waste Disposal Act or RCRA),
42 U.S.C. ss.ss.6901 et seq., as amended; the Toxic Substance Control Act (TSCA)
15 U.S.C. ss.ss.2601 et seq., or in any other federal, state or local law
governing hazardous substances, as such laws may be amended from time to time,
(collectively, the "Act"), at, upon, under or within the Secured Property; and
(ii) the Trustor has not caused or permitted to occur and shall use its best
efforts not to permit to exist, any condition which may cause or constitute a
Hazard at, upon, under or within the Secured Property. The term "Hazard"
includes but is not limited to asbestos, polychlorinated biphenyl (PCBs) and
lead based paints.
1.16.1. The Trustor further represents and warrants that (i) neither
the Trustor nor, to the best of its knowledge, any other party, is or will be
involved in operations upon the Secured Property, which operations could lead to
(a) the imposition of liability on the Trustor or on any other subsequent or
former owner of the Secured Property under the Act; or (b) the creation of a
lien on the Secured Property under the Act or under any similar laws or
regulations;
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and (ii) the Trustor has not permitted, and will not permit, any tenant or
occupant of the Secured Property to engage in any activity that could impose
liability under the Act on such tenant or occupant, on the Trustor or on any
other owner of any of the Secured Property.
1.16.2. The Trustor has complied, and shall comply, in all material
respects with the requirements of the Act and related regulations and with all
similar laws and regulations and shall notify the Beneficiary immediately in the
event of any Hazard or the discovery of any Hazard at, upon, under or within the
Secured Property. The Trustor shall promptly forward to the Beneficiary copies
of all orders, notices, permits, applications or other communications and
reports in connection with any Hazard or the presence of any Hazard or any other
matters relating to the Act or any similar laws or regulations, as they may
affect the Secured Property.
1.16.3. Promptly upon the written request of the Beneficiary from
time to time, when the Beneficiary has a reasonable basis for believing a
violation of the Act may have occurred, the Trustor shall provide to the
Beneficiary, at the Trustor's expense, an environmental site assessment or
environmental audit report, prepared by an environmental engineering firm
acceptable in the reasonable opinion of the Beneficiary, to assess with a
reasonable degree of certainty the presence or absence of any Hazard and the
potential costs in connection with abatement, cleanup or removal of any Hazard
found on, under, at or within the Secured Property.
1.16.4. The Trustor shall defend and indemnify the Beneficiary and
hold the Beneficiary harmless from and against all actual loss, liability,
damage and expense, including reasonable attorneys' fees, suffered or incurred
by the Beneficiary, whether as holder of this Deed of Trust, as mortgagee in
possession, or as successor-in-interest to Trustor by foreclosure deed or deed
in lieu of foreclosure, under or on account of the Act or any similar laws or
regulations, including the assertion of any lien thereunder: (i) with respect to
any Hazard, or the presence of any Hazard affecting the Secured Property whether
or not the same originates or emanates from the Secured Property, including any
loss of value of the Secured Property as a result of the foregoing so long as no
such loss, liability, damage and expense is attributable to any Hazard resulting
from actions on the part of the Trustees or Beneficiary; and (ii) with respect
to any other matter affecting the Secured Property within the jurisdiction of
the Environmental Protection Agency, any other federal agency, or any state or
local environmental agency. The Trustor's obligations under this Section shall
arise upon the discovery of the presence of any Hazard under the Act, whether or
not the Environmental Protection Agency, any other federal agency or any state
or local environmental agency has taken or threatened any action in connection
with the presence of any Hazard. The Trustor's obligations under this Section
shall not extend to those matters specified in (i) and (ii) above if such
matters arose subsequent to the Release Date as defined in the Credit Agreement.
1.16.5. In the event of any Hazard, or the presence of any hazardous
substance affecting the Secured Property, whether or not the same originates or
emanates from the Secured Property or any contiguous real estate, and if the
Trustor shall fail to comply with any of the requirements of the Act or related
regulations or any other environmental law or regulation within the time
established by any regulatory agency, the Beneficiary may at its election, but
13
without the obligation to do so: (i) give such notices and/or cause such work to
be performed at the Secured Property; and/or (ii) take any and all other actions
as the Beneficiary shall reasonably deem necessary or advisable in order to
xxxxx the Hazard, remove the hazardous substance or cure the Trustor's
noncompliance. Any amounts so paid by the Beneficiary pursuant to this Section,
together with interest thereon at the highest rate of interest permitted under
the Promissory Note from the date of written notice of invoice to Trustor by the
Beneficiary, shall be immediately due and payable by the Trustor to the
Beneficiary upon demand and until paid shall be added to and become a part of
the indebtedness under the Loan Documents and shall be secured by this Deed of
Trust.
1.16.6. The provisions of this Section 1.16. are for the benefit of
the Beneficiary only and cannot be assigned to any other party, whatsoever,
except by assignment of the Promissory Note and the Loan Documents by the
current Beneficiary to a successor lender.
1.17. Right of Entry. The Trustor hereby grants to the Beneficiary and the
Beneficiary's agents and representatives, the right, upon twenty-four (24) hours
prior written request, to enter into and upon all or any part of the Secured
Property, subject to the rights of tenants under the Leases, for such purposes
as the Beneficiary deems reasonably necessary to protect the value of the
Secured Property, at any time and from time to time during normal operating
hours, regardless of whether or not the Trustor is in default hereunder or under
any other Loan Document.
1.18. Management of Property. Trustor will not enter into a management
agreement with any other party, or otherwise permit any other party to manage
the operation or leasing of the Property without Beneficiary's prior written
consent.
ARTICLE II
TRUSTOR'S WARRANTIES AND REPRESENTATIONS
2.1. Authority. The Trustor has full right, power, and authority to
execute this Deed of Trust. The Trustor has and will continue to have full power
and lawful authority to encumber and convey the Secured Property as provided
herein, and this Deed of Trust is and will continue to remain a valid and
enforceable lien and security interest upon the Secured Property.
2.2. Title. The Trustor owns for its own account, and not as agent or
trustee for another, good and marketable fee simple title to the Secured
Property free and clear of any lien and security interest and any other
encumbrance, easement, or restriction whatsoever not approved by the
Beneficiary.
2.3. Permits. All permits, licenses, certificates, approvals, easements,
and agreements that are necessary for the construction of the Improvements for
the intended use and occupancy
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of the Real Property have been obtained and are in full force and effect, and
there are no violations or claimed violations thereof.
2.4. Compliance with Law. The Real Property and the intended use and
occupancy thereof do not violate any flood plain, building, zoning, or any other
laws, ordinances, rules, and regulations.
2.5. Flood Plain. Any Improvements will not be located in an area
identified by the Secretary of Housing and Urban Development or a successor
thereto as an area having special flood hazards pursuant to the terms of the
National Flood Insurance Act of 1968, or the Flood Disaster Protection Act of
1973, as amended, or any successor law; or if any improvements are located in
such an area, the Trustor will obtain and maintain the insurance for such
Improvements as specified in Section 1.4.3. of this Deed of Trust.
2.6. Validity of Loan Documents. The Trustor hereby represents and
warrants that: (a) The execution, delivery and performance by the Trustor of the
Promissory Note and the other Loan Documents: (i) are within the legal powers of
the Trustor, (ii) have been duly authorized by all requisite action, (iii) have
received all necessary governmental approval, and (iv) will not violate any
provision of law, any order of any court or other agency of government, the
articles of incorporation or bylaws of the Trustor (if the Trustor is a
corporation), the limited partnership agreement or certificate of limited
partnership of the Trustor (if the Trustor is a limited partnership), the
articles of organization, certificate of organization or operating agreement of
the Trustor (if the Trustor is a limited liability company) or any indenture,
agreement or other instrument to which the Trustor is a party or by which it or
any of its property is bound, or be in conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of its property or assets, except as contemplated by the provisions of the Loan
Documents; and (b) the Promissory Note and the other Loan Documents, when
executed and delivered by the Trustor, will constitute the legal, valid and
binding obligations of the Trustor and other obligors named therein, if any,
enforceable in accordance with their respective terms.
2.7. Taxes. The Trustor: (a) has filed all federal, state and local tax
returns and other reports which the Trustor is required by law to file prior to
the date hereof and which are material to the conduct of the business of the
Trustor; (b) has paid or caused to be paid all taxes, assessments and other
governmental charges that are due and payable prior to the date hereof except
those being contested in good faith; and (c) has made adequate provision for the
payment of such taxes, assessments or other charges accruing but not yet
payable.
2.8. Litigation. Except as disclosed in the Credit Agreement, there is not
now pending against or affecting the Trustor or the Secured Property, nor, to
the knowledge of the Trustor, is there threatened, any action, suit or
proceeding at law or in equity or by or before any administrative agency which
could reasonably be expected to have a Material Adverse Effect (as defined in
the Credit Agreement).
15
2.9. Other Information. All other information, reports, financial
statements, papers and data given to the Beneficiary with respect to the Trustor
or the Secured Property or to others obligated under the terms of the Loan
Documents are accurate and correct in all material respects and complete insofar
as completeness may be necessary to give the Beneficiary a true and accurate
knowledge of the subject matter.
ARTICLE III
EVENTS OF DEFAULT
The following shall constitute events of default (individually an "Event
of Default" and collectively "Events of Default") under this Deed of Trust and
shall entitle the Trustees or the Beneficiary to exercise all rights and
remedies provided in Article IV:
3.1. Default under Credit Agreement. Any Event of Default under the Credit
Agreement, after the expiration of all applicable notice and cure periods as
that term is defined in the Credit Agreement.
3.2. Failure to Perform. A failure to perform or observe, or a default
under, any of the terms, covenants, conditions, agreements or provisions of this
Deed of Trust.
3.3. Failure to Perform Under Other Loan Documents. A failure to perform
or observe, or a default under any of the terms, covenants, conditions and
provisions of the Promissory Note or any other Loan Document, after the
expiration of all applicable notice and cure periods.
3.4. Failure of Warranty or Representation. The failure of any warranty or
representation set forth in this Deed of Trust to be true and accurate in all
material respects on the date hereof.
3.5. Material Adverse Change in Use of Property. A change in any rule,
statute, law or ordinance, whether at the local, state or federal level,
effecting the use of the Secured Property, which change results in a material
adverse change in the permitted use of the Secured Property.
3.6. Cross Default. The default by the Trustor under any obligation or
indebtedness to the Beneficiary, whether now existing or hereafter arising,
which default is not cured within any applicable cure or grace period.
3.7. Transfer of Property. There being, without the prior written consent
of the Beneficiary, a transfer of any of the Secured Property or an interest in
the Trustor in violation of Section 1.8 of this Deed of Trust, including but not
limited to the Trustor selling or transferring the Secured Property or any
portion thereof or granting a security interest in the Secured Property or
otherwise encumbering the same.
16
3.8. Condemnation. If all or any substantial portion (as defined in
Section 1.9 above) of the Secured Property is damaged, taken or transferred
under, or in lieu of the exercise of, the power of eminent domain.
3.9. Default Under Permitted Liens. The default under any document or
instrument creating a lien or security interest in the Secured Property, whether
senior, junior, or of equal priority to the lien and security interest of this
Deed of Trust which default is not cured within any applicable cure or grace
period.
ARTICLE IV
RIGHTS AND REMEDIES
Upon the occurrence of any Event of Default, the Trustees or the
Beneficiary may, at their option and without notice or demand, accelerate and
declare immediately due and payable all sums due on or by reason of the
Promissory Note, this Deed of Trust or any other Loan Document, this Deed of
Trust being and is subject to call upon default, and the Trustees or the
Beneficiary may take possession of all or any portion of the Secured Property
and sell the same at auction as provided below and may, with or without
declaring the aforementioned sums immediately due and payable and with or
without foreclosing, exercise any other right or remedy provided for herein or
in the Promissory Note, any other Loan Document or applicable law, including,
but not at its option, limited to the following:
4.1. Foreclosure; Sale of Secured Property.
(a) Time is of the essence hereof. Upon the occurrence of an Event
of Default, Beneficiary may, at its option and in its sole and absolute
discretion, deliver to the Trustee written declaration of default and demand for
sale and of written Notice of Breach and Election to Sell (this term is
interchangeable with Notice of Default and Election to Sell) to cause the
Property to be sold to satisfy the obligations hereof, which Notice the Trustee
shall cause to be filed for record. Beneficiary also may deposit with the
Trustee, the Promissory Note and all documents evidencing expenditures secured
hereby.
(b) After the lapse of such time as may then be required by law
following the recordation of said Notice of Breach and Election to Sell, and
notice of sale having been given as then required by law, the Trustee without
demand on Trustor, shall sell the Property at the time and place fixed by it in
said notice, either as a whole or in separate parcels, and in such order as it
may determine, at public auction to the highest bidder, for cash in lawful money
of the United States payable at the time of sale. The Trustee may, for any cause
it deems expedient, postpone the sale of all or any portion of the Property
until it shall be completed and, in every case, notice of postponement shall be
given by public announcement thereof at the time and place last appointed for
the sale and from time to time thereafter the Trustee may postpone such sale by
public announcement at the time fixed by the preceding postponement. The Trustee
shall execute and deliver to the purchaser its Trustee's Deed conveying the
Property so sold but without any
17
covenant or warranty, express or implied. The recitals in the Trustee's Deed of
any matters or facts shall be conclusive proof of the truthfulness thereof. Any
person, including Beneficiary, may bid at the sale.
After deducting all costs, fees and expenses of the Trustee and of this Trust,
including the cost of any evidence of title procured in connection with such
sale, the Trustee shall apply the proceeds of sale to the payment of: (1) all
sums expended under the terms hereof, not then repaid, with accrued interest at
the Default Rate; (2) all other sums then secured hereby; and (3) the remainder,
if any, to the person or persons legally entitled thereto.
(c) If an Event of Default shall have occurred, Beneficiary may,
either with or without entry or taking possession as hereinafter provided or
otherwise, and without regard to whether or not the Obligations and other sums
secured hereby shall be due and without prejudice to the right of Beneficiary
thereafter to bring an action or proceeding to foreclose or any other action for
any default existing at the time such earlier action was commenced, proceed by
any appropriate action or proceeding: (A) to enforce payment of the Promissory
Note or the performance of any term hereof or any other right; (B) to foreclose
this Deed of Trust in the manner provided by law for the foreclosure of deeds of
trusts on real property and to sell, as an entirety or in separate lots or
parcels, the Property pursuant to the laws of the State of Nevada or under the
judgment or decree of a court or courts of competent jurisdiction and
Beneficiary shall be entitled to recover in any such proceeding all costs and
expenses incident thereto, including reasonable attorneys' fees in such amount
as shall be awarded by the court; and (C) to pursue any other remedy available
to it at law or in equity. Beneficiary shall take action either by such
proceedings or by the exercise of its powers with respect to entry or taking
possession, or both, as Beneficiary may determine. Any sale of the Property
pursuant to this Section 6.5 shall be referred to as a "Foreclosure Sale".
4.2. [Intentionally deleted]
4.3. Right to Enter, Take, Possess and Operate. The Trustees, the
Beneficiary or their agents or attorneys:
(a) If an Event of Default shall have occurred, (i) Trustor upon
demand of Beneficiary, shall forthwith surrender to Beneficiary the actual
possession and, to the extent permitted by law, Beneficiary itself, or such
officers or agents as it may appoint, may enter, and take possession of all of
the Property or any part thereof, and may exclude Trustor and its agents and
employees wholly therefrom and may have joint access with Trustor to the books,
papers and accounts of Trustor; and (ii) Trustor will pay monthly in advance to
Beneficiary on Beneficiary's entry into possession, or to any receiver appointed
to collect Rents of the Property the fair and reasonable rental value for the
use and occupation of such part of the Property as may be in possession of
Trustor and upon default in any such payment will vacate and surrender
possession of such part of the Property to Beneficiary or to such receiver and,
in default thereof, Trustor may be evicted by summary proceedings or otherwise.
18
(b) If Trustor shall for any reason fail to surrender or deliver the
Property or any part. thereof after Beneficiary's demand, Beneficiary may obtain
a judgment or decree conferring on Beneficiary or the Trustee the right to
immediate possession or requiring Trustor to deliver immediate possession of all
or part of the Property to Beneficiary or the Trustee and Trustor hereby
specifically consents to the entry of such judgment or decree. Trustor shall pay
to Beneficiary or the Trustee, upon demand, all costs and expenses of obtaining
such judgment or decree and reasonable compensation to Beneficiary or the
Trustee, their attorneys and agents, and all such costs, expenses and
compensation shall, until paid, be secured by the lien of this Deed of Trust.
(c) Upon every such entering upon or taking of possession, the
Beneficiary or the Trustee may hold, store, use, operate, manage and control the
Property and conduct the business thereof, and, from time to time in its sole
and absolute discretion:
(i) make all necessary and proper maintenance, repairs, renewals,
replacements, additions, betterments and Improvements thereto and thereon
and purchase or otherwise acquire additional fixtures, personality and
other property;
(ii) insure or keep the Property insured;
(iii) manage and operate the Property and exercise all the rights
and powers of Trustor in its name or otherwise with respect to the same;
(iv) Enter into agreements with others to exercise the powers herein
granted the Beneficiary or the Trustee, all as Beneficiary or the Trustee
from time to time may determine; and Beneficiary or the Trustee may
collect and receive all the Rents thereof, including those past due as
well as those accruing thereafter; enforce any and all Lease provisions,
and shall apply the monies so received by the Beneficiary or the Trustee
in such priority as Beneficiary may determine to (1) the payment of
interest and principal due and payable on the Promissory Note; (2) the
cost of insurance, taxes, assessments and other proper charges upon the
Property or any part thereof; (3) the reasonable out-of-pocket
compensation, expenses and disbursements of the agents, attorneys and
other representatives of Beneficiary or the Trustee; and (4) any other
charges or costs required to be paid by Trustor under the terms hereof.
Beneficiary or Trustee shall surrender possession of the Property to
Trustor only when all that is due upon such interest and principal, tax and
insurance deposits, and all amounts under any of the terms of this Deed of
Trust, shall have been paid and all defaults fully cured. The same right of
taking possession, however, shall exist if any subsequent Event of Default shall
occur and be continuing.
4.4 Purchase by Beneficiary. Upon any such foreclosure sale, Beneficiary
may bid for and purchase the Property and, upon compliance with the terms of
sale, may hold, retain and possess and dispose of such property in its own
absolute right without further accountability.
19
4.5 Application of Obligations Towards Purchase Price. Upon any such
foreclosure sale, Beneficiary may, if permitted by law, and after allowing for
costs and expenses of the sale, compensation and other charges in paying the
purchase price, apply any portion of or all of the Obligation and other sums due
to Beneficiary under the Promissory Note, the Credit Agreement, this Deed of
Trust or any other instrument or document securing the Promissory Note or
otherwise heretofore or hereafter executed in connection with the Obligation
hereunder, in lieu of cash, the amount which shall, upon distribution of the net
proceeds of such sale, be payable thereon.
4.6 Waiver of Appraisement, Valuation, Stay, Extension and Redemption
Laws. Trustor agrees to the full extent permitted by law that in case of a
default on its part hereunder, 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, extension or redemption laws now or hereafter in
force in order to prevent or hinder the enforcement or foreclosure of this Deed
of Trust or the absolute sale of the Property or the final and absolute putting
into possession thereof, immediately after such sale, of the purchasers thereof,
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 Property
marshaled upon any foreclosure of the lien hereof and agrees that the Trustee or
any court having jurisdiction to foreclose such lien may sell the Property in
part or as an entirety.
4.7 Receiver. If an Event of Default shall have occurred, Beneficiary, to
the extent permitted by law and without regard to the value, adequacy or
occupancy of the security for the Obligations and other sums secured hereby,
shall be entitled as a matter of right, if it so elects, to the appointment of a
receiver to enter upon and take possession of the Property and to collect all
Rents, enforce any Lease provisions and other benefits thereof and apply the
same as the court may direct, and such receiver may be appointed by any court of
competent jurisdiction by ex parte application and without notice of hearing,
such notice of hearing being hereby expressly waived. The expenses, including
receiver's fees, attorneys' fees, costs and agent's compensation, incurred
pursuant to the powers herein contained, shall be secured by this Deed of Trust.
The right to enter and take possession of and to manage and operate the Property
and to collect all Rents, enforce any Lease provisions and other benefits
thereof whether by a receiver or otherwise, shall be cumulative to any other
right or remedy hereunder or afforded by law and may be exercised concurrently
therewith or independently thereof. Beneficiary shall be liable to account only
for such Rents and other benefits actually received by Beneficiary, whether
received pursuant to this paragraph or paragraph 6.6. Notwithstanding the
appointment of any receiver or other custodian, Beneficiary shall be entitled as
pledgee to the possession and control of any cash, deposits, and instruments at
the time held by, or payable or deliverable under the terms of this Deed of
Trust to Beneficiary.
4.8 Suits to Protect the Property. Beneficiary shall have the power and
authority, but shall have no obligation, to institute and maintain any suits and
proceedings as Beneficiary may deem advisable (a) to prevent any impairment of
the Property by any acts which may be unlawful or any violation of this Deed of
Trust; (b) to preserve or protect its interest in the Property; and
20
(c) to restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
might impair the security hereunder or be otherwise prejudicial to Beneficiary's
interest.
4.9 Proofs of Claim. In the case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding affecting Trustor or any guarantor of any of Trustor's
obligations, its creditors or its property, Beneficiary, to the extent permitted
by law, shall be entitled to file such proofs of claim or other documents as may
be necessary or advisable in order to have its claims allowed in such
proceedings for the entire Obligation due and payable by Trustor under the
Promissory Note, the Credit Agreement, this Deed of Trust and any other
instrument or document securing the Promissory Note, or otherwise heretofore or
hereafter executed in connection with the Obligation hereunder, at the date of
the institution of such proceedings, and for any additional amounts which may
become due and payable by Trustor after such date.
(a) may, prior to or subsequent to the institution of any
foreclosure proceedings, enter into and upon all or any part of the
Secured Property, and each and every part thereof, and may exclude the
Trustor and its agents and servants therefrom and may use, operate, manage
and control the Secured Property and conduct the business thereon, either
personally or by their superintendents, managers, agents, servants,
attorneys or receivers; and
(b) may, upon every such entry, at the expense of the Trustor
and the Secured Property, maintain, repair and restore the Secured
Property and may complete the construction of any Improvements, and in the
course of such completion may make such changes in the contemplated
Improvements as it may deem desirable and may insure the same; and
likewise, from time to time, at the expense of the Trustor and the Secured
Property, the Beneficiary may make all necessary or proper repairs,
renewals and replacements and such useful alterations, additions,
betterments and improvements thereto and thereon as to it may seem
advisable; and
(c) shall in every such entry have the right to manage and
operate the Secured Property and to carry on the business thereof, take
possession of all books, records and accounts relating thereto and
exercise all rights and powers of the Trustor with respect thereto either
in the name of the Trustor or otherwise as it shall deem best without
interference from the Trustor; and the Beneficiary shall be entitled to
collect and receive all Rent pursuant to Article VI hereof, and after
deducting the costs, liabilities and expenses of conducting the business
thereof and of all maintenance, repairs, renewals, replacements,
alterations, additions, betterments and improvements and amounts necessary
to pay for taxes, assessments, insurance and prior or other proper charges
upon the Secured Property or any part thereof, as well as just and
reasonable compensation for the services of the Beneficiary and for all
attorneys, counsel, agents, clerks, servants and other employees arising
as aforesaid, first, to the payment of sums due under the
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Promissory Note in the order of application as set forth therein, when and
as the same shall become payable in accordance with the terms thereof, and
second, to the payment of any other sums required to be paid by the
Trustor under this Deed of Trust and any other Loan Document, as the
Beneficiary may elect; and
(d) may incur costs, expenses and liabilities of every
character in managing, operating, maintaining, protecting or preserving
the Secured Property, which, if not paid out of Rents shall constitute a
demand obligation owing by Trustor and shall draw interest from the date
of expenditure until paid at the highest rate of interest permitted under
the Promissory Note, and shall constitute a portion of the obligations
secured hereby. If necessary to obtain the possession provided for above,
the Trustees or the Beneficiary, as the case may be, may invoke any and
all legal remedies to dispossess Trustor. In connection with any action
taken by the Beneficiary pursuant to this Section 4, the Beneficiary shall
not be liable for any loss sustained by Trustor resulting from any failure
to rent the Secured Property, or any part thereof, or from any other act
or omission of the Beneficiary in managing the Secured Property unless
such loss is caused by the gross negligence, willful misconduct or bad
faith of the Beneficiary in managing the Secured Property. Subject to the
foregoing the Trustor shall and does hereby agree to indemnify the
Beneficiary for, and to hold the Beneficiary harmless from, any and all
liability, loss or damage which may or might be incurred under or by
reason of this instrument or the exercise of rights or remedies hereunder
and from any and all claims and demands whatsoever which may be asserted
against the Beneficiary by reason of any alleged obligations or
undertakings on its part to perform or discharge any obligations of the
Trustor. Should the Beneficiary incur any such liability under or by
reason of this instrument or the exercise of rights or remedies hereunder
or in defense of any such claims or demands, the amount, thereof,
including costs, expenses and reasonable attorneys fees, shall be secured
hereby. This Section 4.4. shall not operate to place responsibility upon
the Beneficiary for the control, care, management or repair of the Secured
Property, nor shall it operate to make the Beneficiary responsible or
liable for any waste committed on the Secured Property by the tenants or
by any other parties or for any dangerous negligence in the management,
upkeep, repair or control of the Secured Property resulting in loss or
injury or death to any tenant, licensee, employee or person.
4.10. Waivers of the Trustor. The Trustor waives, and agrees not to at any
time insist upon, plead, or in any manner whatsoever claim or take any benefit
or advantage of, any stay or extension or moratorium law, any exemption from
execution of sale of the Secured Property or any part thereof, wherever enacted,
now or at any time hereafter in force, which may affect the covenants and terms
of performance of this Deed of Trust. The Trustor additionally waives, and
agrees not to claim, take, or insist upon any benefit or advantage of any law
now or hereafter in force providing for the valuation or appraisal of the
Secured Property, or any part thereof, prior to any sale or sales thereof which
may be made pursuant to any provisions herein, or pursuant to the decree,
judgment, or order of any court of competent jurisdiction. The Trustor also
waives any right under any statute heretofore or hereafter enacted to redeem the
property so sold or any part thereof and the Trustor hereby covenants not to
hinder, delay or impede the execution of any
22
power herein granted or delegated to the Trustees. The Trustor further waives,
to the extent that the Trustor lawfully may, all right to have the Secured
Property marshaled upon any foreclosure under this Deed of Trust.
4.11. Uniform Commercial Code. The Beneficiary, or the Trustees acting on
behalf of the Beneficiary, may exercise all rights and remedies of a secured
creditor under the Nevada Uniform Commercial Code, as amended, with respect to
any part of the Secured Property constituting personal property and subject to
the secured interest created by this Deed of Trust, including the right to take
possession of the aforementioned personal property without the use of judicial
process and the right to require the Trustor to assemble the same at the Real
Property or such other place as the Beneficiary or Trustees may notify the
Trustor. Any disposition of so much of the Secured Property as may constitute
personal property and subject to the security interest created by this Deed of
Trust shall be considered commercially reasonable if made pursuant to a public
sale which is advertised at least twice in a newspaper of local circulation in
the community where the Real Property is located. Any notice required by the
Nevada Uniform Commercial Code to be given to the Trustor shall be considered
reasonable and properly given if given by written notice at least ten (10) days
prior to the date of any scheduled public sale.
4.12. Right of Setoff. The Beneficiary may setoff any amounts or sums in
any account or represented by any certificate with the Beneficiary in the name
of the Trustor or in which the Trustor has an interest therein.
4.13. Remedies and Cumulative Rights. The rights and remedies provided in
this Article IV shall be nonexclusive and shall be in addition to all other
remedies and rights available under any other Loan Document or applicable law.
All rights and remedies available upon an Event of Default shall be cumulative
and the exercise of any one or more of the available rights and remedies shall
not be considered as or result in a waiver of any other right or remedy and any
particular right or remedy may be exercised in conjunction with any or all other
rights and remedies provided hereunder or under any other Loan Document.
ARTICLE V
SECURITY AGREEMENT
5.1 This Deed of Trust shall be effective as a financing statement filed
as a fixture filing from the date of the recording hereof in accordance with
Nevada Revised Statutes ("NRS") 104.9502. In connection therewith, the addresses
of the Trustor as debtor ("Debtor") and Beneficiary as secured party ("Secured
Party") are as set forth in 7.16 hereof. The foregoing address of Beneficiary,
as the Secured Party, is also the address from which information concerning the
security interest may be obtained by any interested party.
(a) The property subject to this fixture filing is described in the
granting clause above.
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(b) Portions of the property subject to this fixture filing as
identified in (a) above are or are to become fixtures related to the real estate
described on Exhibit A to this Deed of Trust.
(c) Secured Party is: FIRST UNION NATIONAL BANK
(d) Debtor is: TREX COMPANY LLC
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5.2. Financing Statements. If required by Beneficiary, the Trustor
shall execute and deliver to the Beneficiary, in form and substance
satisfactory to the Beneficiary, such financing statements and such
further assurances as the Beneficiary may, from time to time, consider
reasonably necessary to create, perfect and preserve the Beneficiary,
security interest herein granted, and the Beneficiary may cause such
statements and assurances to be recorded and filed at such times and
places as may be required or permitted by law to so create, perfect and
preserve such security interest. The addresses of the Trustor, as debtor,
and the Beneficiary, as secured party, are as set forth herein.
ARTICLE VI
ASSIGNMENT OF LEASES AND RENTS
6.1. Assignment of Leases and Rents. In the event all or any portion of
the Real Property currently or at any time hereafter is leased to any person or
persons for any period or term, independent of the duration thereof, the Trustor
hereby absolutely, irrevocably and unconditionally assigns to the Beneficiary
any and all such leases (the "Leases"), including all extensions and renewals
thereof, and all rents and other payments and benefits (the "Rent") due the
Trustor as a result of the Leases as security for the repayment of the Loan.
This assignment shall be effective immediately, and shall be subject only to the
license as set forth in Section 6.2. herein.
6.2. Collection of Rent. So long as there exists no Event of Default, the
Trustor shall have a license to collect all Rent directly. All such Rent
collected by the Trustor pursuant to this license shall be held by the Trustor
in trust for the Beneficiary, and may be used by the Trustor only for such
purposes as approved by the Beneficiary. Such license shall automatically
terminate upon the occurrence of any Event of Default. In the event of the
termination of the license, should the Beneficiary wish to collect the Rent
assigned to the Beneficiary directly, the Beneficiary shall mail to the Trustor,
and may mail to the Trustor's lessees at their addresses as reflected in the
records of the Beneficiary, a written notice of such election. Such an election
to collect the Rent directly may be made by the Beneficiary at any time and from
time to time following the occurrence and during the continuance of an Event of
Default, and may be made with one or more lessees or successor lessees of the
Trustor following the occurrence of an Event of Default so long as any of the
Obligations remain outstanding and unsatisfied.
6.3. Termination of Assignment. All rights of the Beneficiary to an
assignment of leases and rents shall cease immediately upon full satisfaction of
the Trustor's obligations under the Loan Documents. The execution and
recordation among the land records of a release of the Deed of Trust shall
automatically, and without the execution or recordation among the land records
of a specific and separate release or reassignment by the Beneficiary, be a
release and reassignment to the Trustor of this assignment of leases and rents.
6.4. Beneficiary Has All Rights of Trustor Under Leases. After an election
to collect Rent has been made by the Beneficiary as provided in Section 6.2.
hereof, the Beneficiary shall
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have all rights and privileges of the Trustor, either as provided in any written
lease document between the Trustor and the Trustor's lessee or as provided by
law, to collect Rent due and payable by a lessee as a result of the lessee's use
of all or any portion of the Secured Property. The Beneficiary shall have no
obligation to enforce the Beneficiary's rights and remedies for the collection
of Rent in the name of or on behalf of the Trustor and may do so directly in the
Beneficiary's own name. The Beneficiary shall, however, have no obligation or
duty to enforce payment or collection of Rent and shall be chargeable only with
such Rent as may actually be received.
6.5. Beneficiary Has No Obligation to Perform Trustor's Obligations Under
Lease. The Beneficiary shall have no obligation to the Trustor or to the
Trustor's lessee to perform the Trustor's obligations under any Lease. The
Trustor agrees to indemnify and hold the Beneficiary harmless (including payment
of the Beneficiary's attorneys' fees) from any attempts by any lessee of the
Trustor to force or compel the Beneficiary to meet the Trustor's obligations to
a lessee of the Secured Property under any Lease. The Trustor further covenants
and agrees to meet and fulfill all of the Trustor's obligations to any lessee of
the Land under any Lease, even if the Beneficiary has exercised the
Beneficiary's election to collect Rent directly.
6.6. Consent of Trustor; Right to Approve Leases. The Trustor further
agrees to supply the Beneficiary the standard form of Lease and rent roll and,
on request, with copies of all written lease agreements and the names and
mailing addresses of all lessees. The Beneficiary during the term of this Deed
of Trust shall have the right to approve all Leases. Any lease of the Secured
Property not in conformance with the form of lease and rent roll approved by the
Beneficiary and not otherwise approved by the Beneficiary shall constitute an
Event of Default hereunder without notice or grace period. All Leases shall be
subordinate to the lien of the Deed of Trust and shall specifically so provide
in the lease document.
6.7. No Further Assignments; Recordation; Beneficiary Not Mortgagee in
Possession. The Trustor may not make any further rent or lease assignments
regarding the Secured Property while this Assignment is in full force and
effect. Nothing contained herein shall be deemed to constitute the Beneficiary,
or the Trustees, as mortgagee, or trustees, in possession.
6.8. No Advance Collection of Rent. Except as otherwise approved in
writing by the Beneficiary, the Trustor agrees not to collect any Rent from any
lessee more than thirty (30) days in advance of its due date under any Lease;
furthermore, the Beneficiary shall not be bound by any payment of rent in
advance of more than thirty (30) days.
6.9. No Modification of Leases. The Trustor shall not cancel, amend, or
modify the provisions of any Lease, or grant any concessions under any Lease,
without the Beneficiary's prior written consent; furthermore, the Beneficiary
shall not be bound by any such modification or amendment to any Lease without
the Beneficiary's prior written consent. The Trustor will take all steps which
may be reasonably required to preserve and maintain any lessee's liability under
the lessee's Lease and the enforceability thereof and will advise the
Beneficiary of any
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defense or claim or alleged defense or claim of nonliability, whether in whole
or in part, by any lessee coming to the Trustor's attention.
6.10. Security Deposits. In the event the Trustor has collected any
security deposits with respect to any Leases, the Trustor assigns to the
Beneficiary such security deposits to the extent of the Trustor's rights
therein.
6.11. Assignment of Guaranties. The Trustor assigns to the Beneficiary any
and all rights which the Trustor may have to collect Rents from any person who
has guarantied the rental or other obligations under any Lease.
6.12. Trustors and Guarantors May Rely on This Assignment. The Trustor
irrevocably authorizes all lessees and guarantors to rely upon and comply with
any notice or demand by the Beneficiary for payment to the Beneficiary of any
Rents or for performance of any obligation under any Lease and the Trustor
releases and discharges all lessees and guarantors from any and all liability to
the Trustor for so complying. All lessees and guarantors shall have no duty to
inquire as to whether any default by the Trustor under this Deed of Trust or any
Loan Document has occurred or is existing.
6.13 Assignment Applies to All Leases; Right to Specific Assignment. This
assignment of leases and rents shall apply to each and every Lease of all or any
portion of the Real Property now existing or hereafter executed by the Trustor,
and any guaranties thereof. The Beneficiary may, however, if it so elects,
require a specific assignment agreement to be executed by the Trustor with
respect to any such Lease.
ARTICLE VII
EASEMENT FOR ENVIRONMENTAL INSPECTION
7.1. Grant of Easement. The Trustor hereby grants and conveys to the
Trustees and the Beneficiary an easement for the term of this Deed of Trust (the
"Easement") to enter on and upon the Real Property, upon reasonable advance
notice to the Trustor, in order to conduct audits, inspections and tests,
including subsurface exploration and testing, as the Trustees or the
Beneficiary, in their reasonable discretion, deem necessary, convenient, or
proper to determine whether the ownership, use, and operation of the Real
Property comply with federal, state, and local environmental laws and
regulations. The Trustees or the Beneficiary, or their designees, shall be
permitted to inspect and copy any or all of the Trustor's records relating to
environmental matters and to enter all buildings or facilities of the Trustor
during reasonable business hours for such purpose. In confirmation of the
Trustees' or the Beneficiary's right to inspect and copy all of the Trustor's
records relating to environmental matters and to secure the Trustor's
obligations to the Trustees or the Beneficiary in connection with the Loan and
under this Easement, the Trustor hereby grants to the Trustees or the
Beneficiary a continuing security interest in and to all of the Trustor's
existing and future records with respect to environmental matters, whether or
not located at the Real Property or elsewhere, whether or not in the
27
possession of the Trustor or some third party (including any federal, state, or
local agency or instrumentality), and whether or not written, photographic, or
computerized, and the proceeds and products hereof. To the extent that any
permission of the Trustor is required by any third party in order for such third
party to disclose any information regarding the Real Property and environmental
matters to the Trustees or the Beneficiary, the Trustor specifically grants such
permission and directs such third party to disclose such information to the
Trustees or the Beneficiary, or their designee. The Trustees or the Beneficiary,
or their designated agent, may interview any or all of the Trustor's agents and
employees regarding environmental matters, including any consultants or experts
retained by the Trustor, all of whom are directed to discuss environmental
issues fully and openly with the Trustees or the Beneficiary or their designated
agent and to provide such information as may be requested. Subject to the
provisions of Section 1.16.3 hereof, all of the costs and expenses incurred by
the Trustees or the Beneficiary with respect to the audits, inspections, and
tests, which the Trustees or the Beneficiary may conduct, including the fees of
the engineers, laboratories, and contractors, shall be paid by the Trustor. The
Trustees or the Beneficiary may, but shall not be required to, advance such
costs and expenses on behalf of the Trustor. All sums so advanced shall bear
interest at the then current rate of interest under the Promissory Note and
shall be secured by this Deed of Trust.
7.2 Duration and Defeasance. This Easement shall exist and continue until
all sums owed by the Trustor to the Beneficiary in connection with the Loan have
been repaid in full and this Deed of Trust has been released of record. Such a
release of this Deed of Trust shall terminate this Easement.
7.3. Enforcement. The Trustor acknowledges that no adequate remedy at law
exists for a violation of this Easement and agrees that the Trustees or the
Beneficiary shall have the right to enforce the Easement by equitable writ or
decree, including temporary and preliminary injunctive relief. In the event the
Trustees or the Beneficiary are required to enforce their rights regarding the
Easement, the Trustor shall pay all of their costs and expenses resulting from
such enforcement, including all attorneys' fees incurred by the Trustees or the
Beneficiary.
7.4. Assignability. This Easement shall be assignable and shall be
considered assigned to whomever holds the indebtedness secured by this Deed of
Trust.
7.5. Revocability. This Easement is irrevocable and may not be revoked by
the Trustor.
7.6. Trustees and Beneficiary Not Mortgagee in Possession. The exercise of
the rights granted under this Article shall not constitute the Trustees or the
Beneficiary as a mortgagee in possession with respect to the Real Property.
7.7. Construction and Intention. This Easement is intended to be and shall
be construed as an interest in the Real Property and as an easement in gross. It
is not intended to be a personal right of the Trustees or the Beneficiary or a
mere license. This Easement shall be eliminated automatically upon and
contemporaneously with the termination and release of this Deed of
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Trust.
ARTICLE VIII
MISCELLANEOUS
8.1. Substitute or Successor Trustees. The irrevocable power to remove and
substitute one or more of the Trustees named herein or substituted therefor is
expressly given to the Beneficiary and may be exercised at any time, from time
to time, without notice and without specifying any reason, by filing for record
among the land records where this Deed of Trust is recorded a deed of
appointment, and upon the filing of such deed of appointment all of the title
and estate, powers, rights, and duties of the Trustee or the Trustees thus
superseded shall terminate and shall be vested in the successor Trustee or the
Trustees. The Trustor, the Beneficiary and the Trustees, their substitutes and
successors, expressly waive notice of the exercise of this power, the giving of
bond by any Trustee, and any requirement for application to any court for
removal, substitution or appointment of a Trustee hereunder. In addition, the
act of any one (1) Trustee, whether such Trustee is a sole acting Trustee or
whether there is more than one (1) acting Trustee, shall be sufficient and
effective for all purposes set forth herein and any person may rely upon any
document or instrument executed and delivered by one (1) Trustee, to the same
extent as though the document had been executed by all of the Trustees.
8.2. Warranties of Title. The Trustor warrants: (i) generally title to the
Secured Property; (ii) that it has good and marketable title to the Secured
Property except as otherwise permitted hereby; and (iii) that it will during the
term of this Deed of Trust so warrant and defend the same and the validity and
priority of the lien and security interest of this Deed of Trust to the Trustees
and the Beneficiary against the claims of any and all other persons claiming by
or through the Trustor. The Trustor further warrants that the Trustor will
execute such other and further assurances as may be required by the Trustees or
the Beneficiary from time to time.
8.3. Joint and Several Liability. If there exists more than one (1) person
described by the term "Trustor," all liabilities and obligations of all such
persons under this Deed of Trust shall be joint and several liabilities and
obligations.
8.4. Waivers. The Trustor and the Beneficiary may at any time or from time
to time waive any or all rights accruing to each of them, respectively, under
this Deed of Trust or any other Loan Document, but any waiver by the Trustor or
the Beneficiary, respectively, at any time or from time to time shall not
constitute, unless specifically so expressed by the Trustor or Beneficiary in
writing, a future waiver of performance.
8.5. No Third Party Beneficiary Rights. No person not a party to this Deed
of Trust shall have any benefit hereunder nor have third party beneficiary
rights as a result of this Deed of Trust or any other Loan Document, nor shall
any person be entitled to rely on any actions or inactions of the Beneficiary or
the Trustees, all of which are done for the sole benefit and protection of the
Beneficiary.
29
8.6. Continuing Obligation of the Trustor. The terms, conditions and
covenants set forth herein and in the other Loan Documents shall survive closing
and shall constitute the continuing joint and several obligations of the Trustor
during the term of the Loan Documents.
8.7. Binding Obligation. This Deed of Trust shall be binding upon the
parties and their successors and assigns.
8.8. Final Agreement. This Deed of Trust and the Loan Documents contain
the final and entire agreement and understanding of the parties, and any terms
and conditions not set forth in this Deed of Trust or the Loan Documents are not
a part of this Deed of Trust and the understanding of the parties hereof.
8.9. Amendment. This Deed of Trust may be amended or altered only by a
writing signed by the party to be bound by the amendment, change or alteration.
8.10. Photocopies Sufficient. A xerox, photographic, or other reproduction
of this Deed of Trust shall be sufficient as a financing statement.
8.11. Notices. Any notice required or permitted by or in connection with
this Deed of Trust shall be in writing and made by hand delivery, by wire, by
facsimile transmission, by overnight courier service for next day delivery, or
by certified mail, return receipt requested, postage prepaid, addressed to the
respective party at the appropriate address set forth below or to such other
address as may be hereafter specified by written notice by any party, and shall
be considered given as of the date of hand delivery, wire or facsimile
transmission (or on the next business day if the date of wire or facsimile
transmission is not a business day), as of the date specified for delivery if by
overnight courier service or as of two (2) days following the date of mailing,
as the case may be. Rejection or other refusal to accept or the inability to
deliver because of a changed address of which no notice was given shall not
invalidate the effectiveness of any notice, demand, request or other
communication.
30
If to the Beneficiary or to the Trustees:
First Union National Bank
000 Xxxxx Xxxxxxx Xxxxxx, XX-5
One First Union -- 0xx Xxxxx
Xxxxxxxxx, XX 00000-0760
Attn: Xxxxxxx Xxxxxxx
Fax No.: (000) 000-0000
With a Copy to:
XXXXX XXXX LLP
Suite 800
Bank of America Center
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-3500
Attn: Fiona Tower, Esquire
Fax No.: (000) 000-0000
If to the Trustor:
TREX Company, LLC
000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: President
Fax No.: (000) 000-0000
With a Copies to:
TREX Company, LLC
000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxx, Esquire, Vice President and General Counsel
Fax No.: (000) 000-0000
and
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esquire
Fax No.: (000) 000-0000
31
8.13. Choice of Law. The laws of the State of Nevada shall govern the
rights and obligations of the parties to this Deed of Trust and the
interpretation and construction and enforceability thereof and any and all
issues relating to the transactions contemplated herein. The Trustor expressly
acknowledges the execution and delivery of this Deed of Trust within the
geographic boundaries of the State of Nevada.
8.14. Incorporation By Reference. The terms, conditions, and provisions of
the Promissory Note and all other Loan Documents are incorporated by reference
in this Deed of Trust to the same extent as if set forth in full in this Deed of
Trust. Should any of the terms, conditions, and provisions of the Promissory
Note or any other Loan Document conflict with the terms, conditions, or
provisions of this Deed of Trust, the Trustees or the Beneficiary shall select
which of the terms, covenants, and conditions shall govern and control.
8.15. Terminology. The term "Trustor" shall include the personal
representatives, successors, and assigns of the Trustor or the Trustors; the
term "Trustee" or "Trustees" shall include the successors and assigns of the
Trustee or the Trustees and any substitute or successor Trustee or Trustees; the
term "Beneficiary" shall include the successors and assigns of the individual,
individuals, partnership, limited liability company or corporation holding the
beneficial interest in the Promissory Note secured by this Deed of Trust; the
use of the singular shall include the plural, and the plural may refer only to
the singular; and the use of any gender shall be applicable to all genders.
8.16. Invalidity. If any provision or part of any provision contained in
this Deed of Trust shall be found for any reason to be illegal, invalid or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions or the remaining part of any effective
provisions of this Deed of Trust and this Deed of Trust shall be construed as if
such invalid, illegal, or unenforceable provision or part thereof had never been
contained herein, but only to the extent of its invalidity, illegality, or
unenforceability.
8.17. WAIVER OF JURY TRIAL. THE TRUSTOR WAIVES THE RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE LOAN OR THIS
DEED OF TRUST. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY
THE TRUSTOR AND THE TRUSTOR ACKNOWLEDGES THAT NEITHER THE BENEFICIARY NOR ANY
PERSON ACTING ON BEHALF OF THE BENEFICIARY HAS MADE ANY REPRESENTATIONS OF FACT
TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS
EFFECT. THE TRUSTOR FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS
HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS DEED OF TRUST AND
ALL OTHER LOAN DOCUMENTS AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL. THE TRUSTOR FURTHER ACKNOWLEDGES THAT IT HAS
READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS
32
WAIVER PROVISION AND AS EVIDENCE OF THIS FACT SIGNS THIS DEED OF TRUST BELOW.
[Balance of Page Left Intentionally Blank. Signatures to Follow]
33
IN WITNESS WHEREOF, the Trustor has executed this Deed of Trust
under seal on the date first written above with the specific intention that this
Deed of Trust constitute an instrument under seal.
TRUSTOR:
TREX COMPANY, LLC, a Delaware limited
liability company
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:Executive Vice President, Chief
Financial Officer, Treasurer
ACKNOWLEDGMENT
STATE OF VIRGINIA, COUNTY OF XXXXXXXXX, TO WIT:
I HEREBY CERTIFY, that on this 9th day of November, 2001, before me, the
subscriber, a Notary Public of the State aforesaid, personally appeared Xxxxxxx
X. Xxxxxxx known to me, or satisfactorily proven to be, the person whose name is
subscribed to the within instrument, and who acknowledged himself to be the
Executive Vice President, Chief Financial Officer and Treasurer of Trex Company,
LLC, a Delaware limited liability company, and he acknowledged that he executed
the foregoing instrument for the purposes therein contained and he acknowledged
the same to be the lawful act and deed of the aforesaid limited liability
company.
AS WITNESS my hand and Notarial Seal the day and year first above written.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------------
NOTARY PUBLIC
My Commission Expires: December 31, 2004
34
EXHIBIT A
LAND DESCRIPTION
All that certain real property situate in the County of Lyon, State of
Nevada, described as follows:
A parcel of land located within sections 0 & 0, Xxxxxxxx 00 Xxxxx, Xxxxx
00 Xxxx, X.X.X.& M., described as follows:
Beginning at the Southeast corner of Parcel 2 as shown on Record of
Survey Map File no. 193018, said point being located South 12(0) 39'
12" West a distance of 1839.06 feet from the East 1/4 corner of said
Section 7; thence North 10(0) 21' 00" West a distance of 1026.73 feet
to the Northeast corner of said Parcel 2; thence North 73(0) 18' 04"
West a distance of 1744.19 feet; thence South 43(0) 26' 07" East a
distance of 71.78 feet; thence South 46(0) 33' 53" West a distance of
300.74 feet; thence along a tangent circular curve to the left with a
radius of 500.00 feet and a central angle of 66(0) 09' 53" an arc
length of 577.40 feet; thence South 19(0) 36' 00" East a distance of
567.96 feet; thence South 70(0) 24' 00" West a distance of 92.77 feet;
thence along a tangent circular curve to the right with a radius of
828.77 feet and a central angle of 07(0) 16' 49" an arc length of
105.31 feet; thence South 77(0) 40' 50" West a distance of 100.00
feet; thence along a tangent circular curve to the right with a radius
of 2160.00 feet and a central angle of 11(0) 43' 10" an arc length of
441.81 feet; thence South 89(0) 24' 00" West a distance of 132.36
feet; thence along a tangent circular curve to the left with a radius
of 2830.00 feet and a central angle of 09(0) 45' 00" an arc length of
481.58 feet; thence South 79(0) 39' 00" West a distance of 45.45 feet
to the point of beginning.
NOTE: (NRS 111.312): The above metes and bounds description appeared previously
in that certain XXXXX, BARGAIN AND SALE DEED, recorded in the Office of the
County Recorder of LYON County, Nevada on December 7, 1998, as Document No.
226990, of Official Records.
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