1
Exhibit 4.12
Prepared by Xxxxxx Xxxxx, Esq.
[North Carolina]
DEED OF TRUST, ASSIGNMENT OF RENT
& SECURITY AGREEMENT
from
DAY INTERNATIONAL, INC., Grantor
to
XXXXXX X. XXXXXX, Trustee
for the use and
benefit of
SOCIETE GENERALE, as Administrative Agent, Beneficiary
(COLLATERAL IS OR INCLUDES FIXTURES)
DATED AS OF JANUARY 16, 1997
After recording, please return to:
XXXXXXX XXXXXXX & XXXXXXXX
a partnership which includes
professional corporations
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx X. Xxxxx, Esq.
2
[North Carolina]
This DEED OF TRUST, dated as of January 16, 1997 is made by
DAY INTERNATIONAL, INC., a Delaware corporation ("Grantor"), whose address is
000 Xxxx Xxxxx Xxxxxx, Xxxxxx, Xxxx 00000, to XXXXXX X. XXXXXX ("Trustee") whose
address is c/o First American Title Insurance Company, 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, for the use and benefit of SOCIETE GENERALE,
whose address is 1221 Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
Administrative Agent (in such capacity, "Beneficiary") for the several banks and
other financial institutions (the "Lenders") from time to time parties to the
Senior Secured Credit Agreement dated as January 16, 1997, (as the same may be
amended, supplemented, waived or otherwise modified from time to time the
"Credit Agreement") among Societe Generale Securities Corporation, as Arranger,
Beneficiary, the Lenders, and Day International Group, Inc. (the "Borrower").
References to this Deed of Trust shall mean this instrument and any and all
renewals, modifications, amendments, supplements, extensions, consolidations,
substitutions, spreaders and replacements of this instrument. Capitalized terms
used and not otherwise defined herein shall have the meanings assigned thereto
in the Credit Agreement.
Background
A. Grantor is the owner of the parcel(s) of real property
described on Schedule A attached hereto (such real property, together with all
of the buildings, improvements, structures and fixtures now or subsequently
located thereon (the "Improvements"), being collectively referred to as the
"Real Estate").
B. Pursuant to the terms of the Credit Agreement, the Lenders
have agreed among other things, to make the Loans and the Issuing Lender
has agreed to issue, and the L/C Participants have agreed to acquire, undivided
participating interests in the Letters of Credit for the account of the Borrower
upon the terms and subject to the conditions set forth in the Credit Agreement,
which conditions include the grant by Grantor to Beneficiary of all estate,
right, title and interest of Grantor in and to the Real Estate pursuant to the
terms hereof.
C. It is a condition precedent to the agreement of each Lender
to make Loans and issue Letters of Credit under the Credit Agreement that
Grantor executes and delivers this Deed of Trust. Grantor, a subsidiary of
Borrower, will receive substantial direct and indirect benefit from the
extensions of credit made to Borrower pursuant to the Credit Agreement.
Granting Clauses
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees that to secure:
3
(a) the repayment of principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans
and Reimbursement Obligations and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether
or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans (as they may be evidenced by the Notes from
time to time) and all other obligations (including the Reimbursement
Obligations) and liabilities of Grantor to Beneficiary, the Issuing
Lender and the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Credit
Agreement, the Loans, the Letters of Credit, the Security Documents,
any Guarantee Obligation of Grantor as to which any Lender is a
beneficiary, any Permitted Hedging Arrangement with any Lender or any
banking affiliate of any Lender (whether entered into directly, or
guaranteed by Grantor), the Guarantee and Collateral Agreement dated as
of the date hereof between Grantor, Holdings and Beneficiary (the
"Guarantee") or any other document made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all fees, charges and
disbursements of counsel to the Administrative Agent, the Issuing
Lender or any Lender that are required to be paid by any Loan Party
pursuant to the Credit Agreement) (the items set forth above being
referred to collectively as the "Indebtedness"); and
(b) the performance of all covenants, agreements, obligations
and liabilities of Grantor (the "Obligations") under or pursuant to the
provisions of the Credit Agreement, the Loans, this Deed of Trust, the
Guarantee, any other document securing payment of the Indebtedness (the
"Security Documents") and any amendments, supplements, extensions,
renewals, restatements, replacements or modifications of any of the
foregoing (the Credit Agreement, the Loans, the Letters of Credit, this
Deed of Trust, the Guarantee and all other documents and instruments
from time to time evidencing, securing or guaranteeing the payment of
the Indebtedness or the performance of the Obligations, as any of the
same may be amended, supplemented, extended, renewed, restated,
replaced or modified from time to time, are collectively referred to as
the "Loan Documents");
GRANTOR HEREBY CONVEYS TO TRUSTEE AND HEREBY GRANTS, ASSIGNS, TRANSFERS AND SETS
OVER TO TRUSTEE, IN TRUST WITH POWER OF SALE FOR THE USE AND BENEFIT OF
BENEFICIARY, AND GRANTS BENEFICIARY AND TRUSTEE A SECURITY INTEREST IN:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever
of Grantor, in possession or expectancy, in and to the Real Estate or
any part thereof;
4
29
(C) all right, title and interest of Grantor in, to and under
all easements, rights of way, gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water and riparian
rights, development rights, air rights, mineral rights and all estates,
rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to
the Real Estate, and any reversions, remainders, rents, issues, profits
and revenue thereof and all land lying in the bed of any street, road
or avenue, in front of or adjoining the Real Estate to the center line
thereof;
(D) all right, title and interest of Grantor in and to all of
the fixtures, chattels, business machines, machinery, apparatus,
equipment, furnishings, fittings and articles of personal property of
every kind and nature whatsoever, and all appurtenances and additions
thereto and substitutions or replacements thereof (together with, in
each case, attachments, components, parts and accessories) currently
owned or subsequently acquired by Grantor and now or subsequently
attached to, or contained in or used or usable in any way in connection
with any operation or letting of the Real Estate, including but without
limiting the generality of the foregoing, all screens, awnings, shades,
blinds, curtains, draperies, artwork, carpets, rugs, storm doors and
windows, furniture and furnishings, heating, electrical, and mechanical
equipment, lighting, switchboards, plumbing, ventilating, air
conditioning and air-cooling apparatus, refrigerating, and incinerating
equipment, escalators, elevators, loading and unloading equipment and
systems, stoves, ranges, laundry equipment, cleaning systems (including
window cleaning apparatus), telephones, communication systems
(including satellite dishes and antennae), televisions, computers,
sprinkler systems and other fire prevention and extinguishing apparatus
and materials, security systems, motors, engines, machinery, pipes,
pumps, tanks, conduits, appliances, fittings and fixtures of every kind
and description (all of the foregoing in this paragraph (D) being
referred to as the "Equipment");
(E) all right, title and interest of Grantor in and to all
substitutes and replacements of, and all additions and improvements to,
the Real Estate and the Equipment, subsequently acquired by or released
to Grantor or constructed, assembled or placed by Grantor on the Real
Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials to be used by Grantor whether stored at the Real
Estate or offsite, and, in each such case, without any further
mortgage, conveyance, assignment or other act by Grantor;
(F) all right, title and interest of Grantor in, to and under
all leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or
occupancy of the Real Estate or the Equipment or any part thereof, now
existing or subsequently entered into by Grantor and whether written or
oral and all guarantees of any of the foregoing (collectively, as any
of the foregoing may be amended, restated, extended, renewed or
modified from time to time, the "Leases"), and all rights of Grantor in
respect of cash and securities deposited thereunder and the right to
receive and collect the revenues, income, rents,
5
30
issues and profits thereof, together with all other rents, royalties,
issues, profits, revenue, income and other benefits arising from the
use and enjoyment of the Trust Property (as defined below)
(collectively, the "Rents");
(G) all books and records relating to or used in connection
with the operation of the Real Estate or the Equipment or any part
thereof;
(H) all right, title and interest of Grantor, to the extent
assignable, in and to (i) all unearned premiums under insurance
policies now or subsequently obtained by Grantor relating to the Real
Estate or Equipment, (ii) any such insurance policies, (iii) all
proceeds of any such insurance policies (including title insurance
policies) including the right to collect and receive such proceeds,
subject to the provisions relating to insurance generally set forth
below, and (iv) all awards and other compensation, including the
interest payable thereon and the right to collect and receive the same,
made to the present or any subsequent owner of the Real Estate or
Equipment for the taking by eminent domain, condemnation or otherwise,
of all or any part of the Real Estate or any easement or other right
therein, subject to the provisions relating to condemnation awards
generally set forth below;
(I) all right, title and interest of Grantor, to the extent
assignable, in and to (i) all contracts from time to time executed by
Grantor or any manager or agent on its behalf relating to the
ownership, construction, maintenance, repair, operation, occupancy,
sale or financing of the Real Estate or Equipment or any part thereof
and all agreements relating to the purchase or lease of any portion of
the Real Estate or any property which is adjacent or peripheral to the
Real Estate, together with the right to exercise such options
(collectively, the "Contracts"), (ii) all consents, licenses, building
permits, certificates of occupancy and other governmental approvals
relating to construction, completion, occupancy, use or operation of
the Real Estate or any part thereof (collectively, the "Permits") and
(iii) all drawings, plans, specifications and similar or related items
relating to the Real Estate (collectively, the "Plans");
(J) any and all monies now or subsequently on deposit for the
payment of real estate taxes or special assessments against the Real
Estate or for the payment of premiums on insurance policies covering
the foregoing property or otherwise on deposit with or held by
Beneficiary as provided in this Deed of Trust ;
(K) all accounts and revenues arising from the operation of
the Improvements; and
(L) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now
owned or held or subsequently acquired by Grantor and described in the foregoing
clauses (A) through (E) are collectively referred to as the "Premises", and
those described in the foregoing clauses (A) through (L) are collectively
referred to as the "Trust Property").
6
31
TO HAVE AND TO HOLD the Trust Property and the rights and
privileges hereby granted unto Trustee, its successors and assigns for the uses
and purposes set forth, until the Indebtedness is fully paid and the Obligations
fully performed or as otherwise expressly provided in the Section of this Deed
of Trust entitled "Reconveyance of Deed of Trust".
Terms and Conditions
Grantor further represents, warrants, covenants and agrees
with Beneficiary as follows:
1. Warranty of Title. Grantor warrants that Grantor has good
title to the Real Estate in fee simple and good title to the rest of the Trust
Property, subject only to the matters that are set forth in Schedule B of the
title insurance policy or policies being issued to Beneficiary to insure this
Deed of Trust and any Liens expressly permitted under the Credit Agreement
(collectively, the "Permitted Exceptions") and Grantor shall warrant, defend and
preserve such title and the rights granted by this Deed of Trust thereon against
all claims of all persons and entities. Grantor further warrants that it has the
right to grant this Deed of Trust.
2. Payment of Indebtedness. Grantor shall pay the Indebtedness
at the times and places and in the manner specified in the Credit Agreement and
shall perform all the Obligations.
3. Requirements.
(a) Grantor shall promptly comply with, or cause to be
complied with, and conform to all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, rules, regulations and requirements, and
irrespective of the nature of the work to be done, of each of the United States
of America, any State and any municipality, local government or other political
subdivision thereof and any agency, department, bureau, board, commission or
other instrumentality of any of them, now existing or subsequently created
(collectively, "Governmental Authority") which has jurisdiction over the Trust
Property and all covenants, restrictions and conditions now or later of record
which may be applicable to any of the Trust Property, or to the use, manner of
use, occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of any of the Trust Property, except to the extent that failure
to comply therewith, in the aggregate, would not reasonably be expected to have
a Material Adverse Effect. All present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, rules, regulations and requirements of
every Governmental Authority applicable to Grantor or to any of the Trust
Property and all covenants, restrictions, and conditions which now or later may
be applicable to any of the Trust Property are collectively referred to as the
"Legal Requirements".
(b) From and after the date of this Deed of Trust, except as
expressly permitted under the Credit Agreement or herein, Grantor shall not by
act or omission permit, other than Permitted Exceptions, any building or other
improvement on any premises not
7
32
subject to this Deed of Trust to rely on the Premises or any part thereof or any
interest therein to fulfill any Legal Requirement, and Grantor hereby assigns to
Beneficiary any and all rights to give consent for all or any portion of the
Premises or any interest therein to be so used. Grantor shall not by act or
omission impair the integrity of any of the Real Estate as a single zoning lot
separate and apart from all other premises. Grantor represents that each parcel
of the Real Estate constitutes a legally subdivided lot, in compliance with all
subdivision laws and similar Legal Requirements, except to the extent that
failure to comply therewith, in the aggregate, would not reasonably be expected
to have a Material Adverse Effect. Any act or omission by Grantor which would
result in a violation of any of the provisions of this subsection shall be void.
4. Payment of Taxes and Other Impositions. (a) Except as
expressly permitted under the Credit Agreement, Grantor, prior to delinquency,
shall pay and discharge all taxes of every kind and nature (including, without
limitation, all real and personal property, income, franchise, withholding,
transfer, gains, profits and gross receipts taxes), all charges for any easement
or agreement maintained for the benefit of any of the Trust Property, all
general and special assessments, levies, permits, inspection and license fees,
all water and sewer rents and charges and all other public charges even if
unforeseen or extraordinary, imposed upon or assessed against or which may
become a lien on any of the Trust Property, or arising in respect of the
occupancy, use or possession thereof, together with any penalties or interest on
any of the foregoing (all of the foregoing are collectively referred to as the
"Impositions"). Grantor shall within 30 days after the request of Beneficiary
deliver to Beneficiary (i) original or copies of receipted bills and cancelled
checks or other evidence of payment of such Imposition if it is a real estate
tax or other public charge and (ii) evidence acceptable to Beneficiary in its
reasonable discretion showing the payment of any other such Imposition. If by
law any Imposition, at Grantor's option, may be paid in installments (whether or
not interest shall accrue on the unpaid balance of such Imposition), Grantor may
elect to pay such Imposition in such installments and shall be responsible for
the payment of such installments with interest, if any.
(b) Nothing herein shall affect any right or remedy of
Beneficiary under this Deed of Trust or otherwise, without notice or demand to
Grantor, to pay any Imposition after the date such Imposition shall have become
delinquent, and to add to the Indebtedness the amount so paid, together with
interest from the time of payment at the rate of interest described in
subsection 2.15(c) of the Credit Agreement (the "Default Rate"). Any sums paid
by Beneficiary in discharge of any Impositions shall be (i) a charge on the
Premises secured hereby prior to any right or title to, interest in, or claim
upon the Premises subordinate to the lien of this Deed of Trust, and (ii)
payable on demand by Grantor to Beneficiary together with interest at the
Default Rate as set forth above.
(c) Grantor shall not claim, demand or be entitled to receive
any credit or credits toward the satisfaction of this Deed of Trust or on any
interest payable thereon for any taxes assessed against the Trust Property or
any part thereof, and shall not claim any deduction from the taxable value of
the Trust Property by reason of this Deed of Trust.
8
33
(d) Grantor shall have the right pursuant to subsection 7.3 of
the Credit Agreement to contest in good faith to the amount or validity of any
Imposition by appropriate proceedings diligently conducted with reserves in
conformity with GAAP, provided that Grantor shall demonstrate to Beneficiary's
reasonable satisfaction that such proceedings shall operate conclusively to
prevent the sale of the Trust Property, or any part thereof, to satisfy such
Imposition prior to final determination of such proceedings.
(e) Upon written notice to Grantor, Beneficiary during the
continuance of an Event of Default (as defined below) shall be entitled to
require Grantor to pay monthly in advance to Beneficiary the equivalent of
1/12th of the estimated annual Impositions. Beneficiary may commingle such funds
with its own funds but Grantor shall be entitled to interest thereon at a rate
mutually agreed upon by Grantor and Beneficiary.
5. Insurance. (a) Grantor shall maintain or cause to be
maintained on all of the Premises:
(i) property insurance against loss or damage by fire,
lightning, windstorm, tornado, water damage, flood, earthquake and by
such other further risks and hazards as now are or subsequently may be
covered by an "all risk" policy or a fire policy covering "special"
causes of loss (provided, however, that the maintenance of insurance
against earthquake, windstorm, flood and freeze risks shall be subject
to availability of such insurance coverage on commercially reasonable
terms). The policy shall include building ordinance law endorsements
and the policy limits shall be automatically reinstated after each loss
(other than with respect to flood and earthquake coverage which shall
be reinstated on a commercially reasonable basis);
(ii) commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), covering all claims
for personal injury, bodily injury or death, or property damage,
subject to standard policy terms, conditions and exclusions, occurring
on, in or about the Premises in an amount not less than $10,000,000
combined single limit with respect to personal injury, bodily injury or
death, or property damage relating to any one occurrence plus such
excess limits as Beneficiary shall reasonably request from time to
time;
(iii) when and to the extent reasonably required by
Beneficiary, insurance against loss or damage by any other risk
commonly insured against by persons occupying or using like properties
in the locality or localities in which the Real Estate is situated;
(iv) during the course of any construction or repair of
Improvements, commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), (including coverage
for elevators and escalators, if any). The policy shall include
coverage for independent contractors and completed operations. The
completed operations coverage shall stay in effect for two years after
construction of any Improvements has been completed. The policy shall
provide coverage on
9
34
an occurrence basis against claims for personal injury, including,
without limitation, bodily injury, and death, and property damage
resulting from Grantor's negligence or other behavior for which Grantor
may be adjudged tortiously liable, subject to standard policy terms,
conditions and exclusions, occurring on, in or about the Premises and
the adjoining streets, sidewalks and passageways, such insurance to
afford immediate minimum protection to a limit of not less than that
reasonably required by Beneficiary with respect to personal injury,
bodily injury or death to any one or more persons or damage to
property;
(v) during the course of any construction or repair of the
Improvements, workers' compensation insurance (including employer's
liability insurance) for all employees of Grantor engaged on or with
respect to the Premises in such amounts no less than the limits
established by law, or in the case of employer's liability insurance,
no less than $500,000, provided that Grantor may self-insure any or all
workers' compensation liabilities;
(vi) during the course of any construction, addition, alteration or
repair of the Improvements, builder's risk completed value property
insurance form against "all risks of physical loss" (subject to
standard policy exclusions), including collapse, water damage, flood
and earthquake and transit coverage, during construction or repairs of
the Improvements, with deductible approved by Beneficiary in its
reasonable discretion, in reporting form, covering the total
replacement value of work performed and equipment, supplies and
materials furnished (with an appropriate limit for soft costs in the
case of construction); provided, however, that the maintenance of
insurance against earthquake and flood risks shall be subject to
availability of such insurance coverage on commercially reasonable
terms;
(vii) boiler and machinery property insurance covering pressure
vessels, air tanks, boilers, machinery, pressure piping, heating, air
conditioning and elevator equipment and escalator equipment, provided
the Improvements contain equipment of such nature, in such amounts as
are reasonably satisfactory to Beneficiary but not less than the lesser
of $1,000,000 or 10% of the value of the Improvements;
(viii) if any portion of the Premises are located in an area
identified in the Federal Register as having special flood hazards by
the Secretary of Housing and Urban Development or other applicable
agency, flood insurance covering any parcel of the Trust Property which
contains improvements in an amount satisfactory to Beneficiary in its
reasonable discretion, but in no event less than the maximum limit of
coverage available with respect to the particular type of property
under the National Flood Insurance Act of 1968, as amended and with a
term ending not later than the maturity of the Indebtedness and
Beneficiary shall receive confirmation that Grantor has received the
notice required pursuant to Section 208.8(e)(3) of Regulation H of the
Board of Governors of The Federal Reserve System; and
(ix) such other insurance in such amounts as Beneficiary may
reasonably request from time to time.
10
35
Each insurance policy (other than flood insurance written under the National
Flood Insurance Act of 1968, as amended, in which case to the extent available)
shall (i) provide that it shall not be cancelled, non-renewed or, in the case of
property and boiler and machinery insurance, materially amended without 30-days'
prior written notice to Beneficiary, (ii) with respect to all property
insurance, subject to availability on commercially reasonable terms, provide for
deductibles not to exceed $250,000, other than with respect to (a) flood,
freeze, windstorm and earthquake perils for which deductibles shall not exceed
the greater of $500,000 or 5% of values at risk per location involved in loss
and (b) boiler and machinery coverage for which deductibles shall not exceed the
greater of $500,000 or five times 100% of the daily time element value, contain
a "Replacement Cost Endorsement" without any deduction made for depreciation and
with no co-insurance penalty (or attaching an agreed amount endorsement
satisfactory to Beneficiary in its reasonable discretion), with loss payable
solely to Beneficiary (modified, if necessary and to the extent available under
such policy, to provide that proceeds in the amount of replacement cost may be
retained by Beneficiary without the obligation to rebuild) as its interest may
appear, without contribution, under a "standard" or "New York" mortgagee clause
acceptable to Beneficiary in its reasonable discretion and be written by
insurance companies having an A.M. Best Company, Inc. rating of A- or higher and
a financial size category of not less than VII, or otherwise as approved by
Beneficiary in its reasonable discretion and (iii) contain a "manuscript"
endorsement providing that Grantor may not unilaterally cancel such policy
without Beneficiary's prior written consent. Liability insurance policies shall
name Beneficiary as an additional insured and contain a waiver of subrogation
against Beneficiary; all such policies shall indemnify and hold Beneficiary
harmless from all liability claims occurring on, in or about the Premises and
the adjoining streets, sidewalks and passageways, subject to standard policy
terms, conditions and exclusions. The amounts of each insurance policy and the
form of each such policy shall at all times be satisfactory to Beneficiary in
its reasonable discretion. Each policy shall expressly provide that any proceeds
which are payable to Beneficiary shall be paid by check payable to the order of
Beneficiary only and requiring the endorsement of Beneficiary only. If any
required insurance shall expire, be withdrawn, become void by breach of any
condition thereof by Grantor or by any lessee of any part of the Trust Property
or become void or unsafe by reason of the failure or impairment of the capital
of any insurer, Grantor shall immediately obtain new or additional insurance
satisfactory to Beneficiary in its reasonable discretion. Grantor shall not take
out any separate or additional insurance which is contributing in the event of
loss unless it is properly endorsed and otherwise satisfactory to Beneficiary in
all respects in its reasonable discretion.
(b) Grantor shall deliver to Beneficiary an original of each
insurance policy required to be maintained, or a certificate of such insurance
acceptable to Beneficiary in its reasonable discretion, together with a copy of
the declaration page for each such policy. Grantor shall (i) pay as they become
due all premiums for such insurance, (ii) not later than seven days prior to the
expiration of each policy to be furnished pursuant to the provisions of this
Section, deliver a renewed policy or policies, or certificates of insurance
acceptable to Beneficiary, in its reasonable discretion, or duplicate original
or originals thereof. Upon the reasonable request of Beneficiary, Grantor shall
cause its insurance underwriter or broker to certify to Beneficiary in writing
that all the requirements of this Deed of Trust governing insurance have been
satisfied.
11
36
(c) If Grantor is in default of its obligations to insure or
deliver any such policy or policies, or certificates of insurance acceptable to
Beneficiary, in its reasonable discretion, then Beneficiary, at its option and
without notice, may effect such insurance from year to year, and pay the premium
or premiums therefor, and Grantor shall pay to Beneficiary on demand such
premium or premiums so paid by Beneficiary with interest from the time of
payment at the Default Rate and the same shall be deemed to be secured by this
Deed of Trust and shall be collectible in the same manner as the Indebtedness
secured by this Deed of Trust.
(d) Grantor shall increase the amount of property insurance
required to equal 100% replacement cost pursuant to the provisions of this
Section at the time of each renewal of each policy (but not later than 12 months
from the date of this Deed of Trust and each successive 12 month period to occur
thereafter) by using the Xxxxxx & Swift Building Cost Index to determine whether
there shall have been an increase in the replacement value since the most recent
adjustment and, if there shall have been such an increase, the amount of
insurance required shall be adjusted accordingly.
(e) Grantor promptly shall in all material respects comply
with and conform to (i) all provisions of each such insurance policy, and (ii)
all requirements of the insurers applicable to Grantor or to any of the Trust
Property or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration or repair of any of the Trust Property. Grantor shall
not use or permit the use of the Trust Property in any manner which would permit
any insurer to cancel any insurance policy or void coverage required to be
maintained by this Deed of Trust.
(f) (i) If the Trust Property, or any part thereof, shall be
destroyed or damaged by fire or any other casualty, whether insured or
uninsured, or in the event any claim is made against Grantor for any
personal injury, bodily injury or property damage incurred on or about
the Premises, Grantor shall promptly give notice thereof to
Beneficiary.
(ii) If the Trust Property is damaged by fire or other
casualty and the cost to repair such damage is less than $1,000,000,
then provided that no Event of Default shall have occurred and be
continuing, Grantor shall have the right to adjust such loss, and the
insurance proceeds relating to such loss may be paid over to Grantor;
provided that Grantor shall, promptly after any such damage, repair
such damage to the extent required by subsection 6.5 of the Credit
Agreement regardless of whether any insurance proceeds have been
received or whether such proceeds, if received, are sufficient to pay
for the costs of repair.
(iii) If the Trust Property is damaged by fire or other
casualty, and the cost to repair such damage exceeds the limit in
Section 5(f)(ii) above, or if an Event of Default shall have occurred
and be continuing, then Grantor authorizes and empowers Beneficiary, at
Beneficiary's option and in Beneficiary's reasonable discretion, as
attorney-in-fact for Grantor, to make proof of loss, to adjust and
compromise any claim under any insurance policy, to appear in and
prosecute any action arising from
12
37
any policy, to collect and receive insurance proceeds and to deduct
therefrom Beneficiary's reasonable expenses incurred in the collection
process. Each insurance company concerned is hereby authorized and
directed to make payment for such loss directly to Beneficiary.
Beneficiary shall have the right to require Grantor to repair or
restore the Trust Property to the extent required by subsection 6.5 of
the Credit Agreement, and Grantor hereby designates Beneficiary as its
attorney-in-fact for the purpose of making any election required or
permitted under any insurance policy relating to such repair or
restoration. The insurance proceeds or any part thereof received by
Beneficiary may be applied by Beneficiary toward reimbursement of all
reasonable costs and expenses of Beneficiary in collecting such
proceeds, and the balance, at Beneficiary's option in its sole and
absolute discretion, to the principal (to the installments in inverse
order of maturity, if payable in installments) and interest due or to
become due under the Notes, the Credit Agreement or the other Loan
Documents, to fulfill any other Obligation of Grantor, to the
restoration or repair of the property damaged, or released to Grantor.
Application by Beneficiary of any insurance proceeds toward the last
maturing installments of principal and interest due or to become due on
the Loans shall not excuse Grantor from making any regularly scheduled
payments due thereunder, nor shall such application extend or reduce
the amount of such payments. In the event Beneficiary elects to release
such proceeds to Grantor, Grantor shall be obligated to use such
proceeds to restore or repair the Trust Property to the extent required
by subsection 6.5 of the Credit Agreement.
(g) In the event of foreclosure of this Deed of Trust or other
transfer of title to the Trust Property in extinguishment of the Indebtedness,
all right, title and interest of Grantor in and to any insurance policies then
in force, to the extent assignable or transferable, shall pass to the purchaser
or grantee and Grantor hereby appoints Beneficiary its attorney-in-fact, in
Grantor's name, to assign and transfer all such policies and proceeds to such
purchaser or grantee.
(h) Upon written notice to Grantor, Beneficiary, during the
continuance of an Event of Default, shall be entitled to require Grantor to pay
monthly in advance to Beneficiary the equivalent of 1/12th of the estimated
annual premiums due on such insurance. Beneficiary may commingle such funds with
its own funds but Grantor shall be entitled to interest thereon at a rate
mutually agreed upon by Grantor and Beneficiary.
(i) Grantor may maintain insurance required under this Deed of
Trust by means of one or more blanket insurance policies maintained by Grantor;
provided, however, that (A) any such policy shall specify, or Grantor shall
furnish to Beneficiary a written statement from the insurer so specifying, the
maximum amount of the total insurance afforded by such blanket policy that is
allocated to the Premises and the other Trust Property and any sublimits and
aggregates in such blanket policy applicable to the Premises and the other Trust
Property, (B) each such blanket policy shall include an endorsement providing
that, in the event of a loss resulting from an insured peril, insurance proceeds
shall be allocated to the Trust Property in an amount equal to the coverages
required to be maintained by Grantor as provided above (subject to applicable
sublimits and aggregates) and (C) the protection afforded under any such blanket
policy shall be no less than that which would have been
13
38
afforded under a separate policy or policies relating only to the Trust Property
(subject to applicable sublimits and aggregates).
6. Restrictions on Liens and Encumbrances. Except for the lien
of this Deed of Trust and the Permitted Exceptions and except as otherwise
permitted pursuant to the terms of the Credit Agreement, Grantor shall not
further encumber the Trust Property nor create or suffer to exist any lien,
charge or encumbrance on the Trust Property, or any part thereof, whether
superior or subordinate to this Deed of Trust and whether recourse or
non-recourse.
7. Due on Sale and Other Transfer Restrictions. Except as may
be otherwise expressly permitted under the Credit Agreement, Grantor shall not
sell, transfer, convey or assign all or any portion of, or any interest in, the
Trust Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a)
Grantor shall maintain or cause to be maintained all the Improvements in good
condition and repair and shall not commit or suffer any waste of the
Improvements. To the extent required under subsection 6.5 of the Credit
Agreement, Grantor shall repair, restore, replace or rebuild promptly any part
of the Premises which may be damaged or destroyed by any casualty whatsoever to
a condition substantially equivalent to its condition prior to the damage or
destruction. Except as permitted by the Credit Agreement, the Improvements shall
not be demolished or materially altered, nor any material additions built,
without the prior written consent of Beneficiary, provided that Grantor may make
alterations or additions without the consent of Beneficiary that do not
materially reduce the value of the Trust Property.
(b) Beneficiary and any persons authorized by Beneficiary
shall, upon reasonable notice and at any reasonable time, have the right to
enter and inspect the Premises and the right to inspect all work done, labor
performed and materials furnished in and about the Improvements and the right to
inspect and make copies, to the extent reasonable, of all books, contracts and
records of Grantor relating to the Trust Property.
(c) Except as permitted under subsection 6.3 of the Credit
Agreement, Grantor shall pay or cause to be paid prior to delinquency, all
utility charges which are incurred for gas, electricity, water or sewer services
furnished to the Premises and all other assessments or charges of a similar
nature, whether public or private, affecting the Premises or any portion
thereof, whether or not such assessments or charges are liens thereon.
9. Condemnation/Eminent Domain. Promptly upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Trust Property, or any portion thereof, Grantor will notify Beneficiary of the
pendency of such proceedings. Grantor authorizes Beneficiary, at Beneficiary's
option and in Beneficiary's reasonable discretion, as attorney-in-fact for
Grantor, to commence, appear in and prosecute, in Beneficiary's or Grantor's
name, any action or proceeding relating to any condemnation of the Trust
Property, or any portion thereof, and to settle or compromise any claim in
connection with such condemnation upon the occurrence and during the continuance
of an Event of Default. If Beneficiary elects not to participate in such
condemnation proceeding, then Grantor shall, at its expense, diligently
prosecute any such proceeding and shall consult with Beneficiary, its
14
39
attorneys and experts and cooperate with them in any defense of any such
proceedings. All awards and proceeds of condemnation shall be applied in the
same manner as insurance proceeds, and to the extent such awards and proceeds
exceed $1,000,000 and no Event of Default shall have occurred and be continuing,
such awards and proceeds shall be assigned to Beneficiary to be applied in the
same manner as insurance proceeds, as provided above in subsection 5(f)(iii)
above, and Grantor agrees to execute any such assignments of all such awards as
Beneficiary may request.
10. Restoration. If Beneficiary elects or is required
hereunder to release funds to Grantor for restoration of any of the Trust
Property, then such restoration shall be performed in accordance with such
conditions as Beneficiary shall impose in its reasonable discretion, and as are
customarily imposed by construction lenders.
11. Leases. (a) Grantor shall not (i) execute an assignment or
pledge of any Lease relating to all or any portion of the Trust Property other
than in favor of Beneficiary, or (ii) without the prior written consent of
Beneficiary, which consent shall not be unreasonably withheld or delayed,
execute or permit to exist any Lease of any of the Trust Property, except for
Permitted Exceptions and except as may be otherwise expressly permitted under
the Credit Agreement.
(b) As to any Lease consented to by Beneficiary under
subsection 11(a) above, Grantor shall:
(i) promptly perform in all material respects all of the
provisions of the Lease on the part of the lessor thereunder to be
performed;
(ii) promptly enforce all of the material provisions of the
Lease on the part of the lessee thereunder to be performed;
(iii) appear in and defend any action or proceeding arising
under or in any manner connected with the Lease or the obligations of
Grantor as lessor or of the lessee thereunder;
(iv) exercise, within 5 business days after a reasonable
request by Beneficiary, any right to request from the lessee a
certificate with respect to the status thereof;
(v) promptly deliver to Beneficiary copies of any notices of
default which Grantor may at any time forward to or receive from the
lessee;
(vi) promptly deliver to Beneficiary a fully executed
counterpart of the Lease; and
(vii) promptly deliver to Beneficiary, upon Beneficiary's
reasonable request, if permitted under such Lease, an assignment of the
Grantor's interest under such Lease.
15
40
(c) Grantor shall deliver to Beneficiary, within 10 business
days after a reasonable request by Beneficiary, a written statement, certified
by Grantor as being true, correct and complete, containing the names of all
lessees and other occupants of the Trust Property, the terms of all Leases and
the spaces occupied and rentals payable thereunder, and a list of all Leases
which are then in default, including the nature and magnitude of the default;
such statement shall be accompanied by such other information as Beneficiary may
reasonably request.
(d) All Leases entered into by Grantor after the date hereof,
if any, and all rights of any lessees thereunder shall be subject and
subordinate in all respects to the lien and provisions of this Deed of Trust
unless Beneficiary shall otherwise elect in writing.
(e) In the event of the enforcement by Beneficiary of any
remedy under this Deed of Trust the lessee under each Lease shall, if requested
by Beneficiary or any other person succeeding to the interest of Beneficiary as
a result of such enforcement, and if provided, at such lessee's request, with a
nondisturbance agreement from Beneficiary or such person, attorn to Beneficiary
or to such person and shall recognize Beneficiary or such successor in interest
as lessor under the Lease without change in the provisions thereof; provided
however, that Beneficiary or such successor in interest shall not be: (i) bound
by any payment of an installment of rent or additional rent which may have been
made more than 30 days before the due date of such installment; (ii) bound by
any amendment or modification to the Lease made without the consent of
Beneficiary or such successor in interest; (iii) liable for any previous act or
omission of Grantor (or its predecessors in interest); (iv) responsible for any
monies owing by Grantor to the credit of such lessee or subject to any credits,
offsets, claims, counterclaims, demands or defenses which the lessee may have
against Grantor (or its predecessors in interest); (v) bound by any covenant to
undertake or complete any construction of the Premises or any portion thereof;
or (vi) obligated to make any payment to such lessee other than any security
deposit actually delivered to Beneficiary or such successor in interest. Each
lessee or other occupant, upon request by Beneficiary or such successor in
interest, shall execute and deliver an instrument or instruments confirming such
attornment. In addition, Grantor agrees that each Lease entered into after the
date of this Deed of Trust shall include language to the effect of subsections
(d) and (e) of this Deed of Trust Section and language to the effect that if any
act or omission of Grantor would give any lessee under such Lease the right,
immediately or after lapse of a period of time, to cancel or terminate such
Lease, or to xxxxx or offset against the payment of rent or to claim a partial
or total eviction, such lessee shall not exercise such right until it has given
written notice of such act or omission to Beneficiary and until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice without a remedy being effected; provided that the
provisions of such subsections shall be self-operative and any failure of any
Lease to include such language shall not impair the binding effect of such
provisions on any lessee under such Lease.
12. Further Assurances/Estoppel Certificates. To further
assure Beneficiary's rights under this Deed of Trust, Grantor agrees upon demand
of Beneficiary to do any act or execute any additional documents (including, but
not limited to, security agreements on any personalty included or to be included
in the Trust Property and a separate assignment of each
16
41
Lease in recordable form) as may be reasonably required by Beneficiary to
confirm the rights or benefits conferred on Beneficiary by this Deed of Trust.
13. Beneficiary's Right to Perform. If Grantor fails to
perform any of the covenants or agreements of Grantor, Beneficiary, without
waiving or releasing Grantor from any obligation or default under this Deed of
Trust, may, at any time (but shall be under no obligation to) pay or perform the
same, and the amount or cost thereof, with interest at the Default Rate, shall
immediately be due from Grantor to Beneficiary and the same shall be secured by
this Deed of Trust and shall be an encumbrance on the Trust Property prior to
any right, title to, interest in or claim upon the Trust Property attaching
subsequent to the date of this Deed of Trust. No payment or advance of money by
Beneficiary under this Section shall be deemed or construed to cure Grantor's
default or waive any right or remedy of Beneficiary.
14. Events of Default. The occurrence of an Event of Default
under the Credit Agreement shall constitute an Event of Default hereunder.
15. Remedies. (a) Upon the occurrence of any Event of Default,
in addition to any other rights and remedies Beneficiary may have pursuant to
the Loan Documents, or as provided by law, and without limitation, the
Indebtedness and all other amounts payable with respect to the Loans, the
Letters of Credit, the Credit Agreement, this Deed of Trust and the other
Security Documents shall become due and payable as provided in the Credit
Agreement. Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
In addition, upon the occurrence of any Event of Default, Beneficiary may
immediately take such action, without notice or demand, as it deems advisable to
protect and enforce its rights against Grantor and in and to the Trust Property,
including, but not limited to, the following actions, each of which may be
pursued concurrently or otherwise, at such time and in such manner as
Beneficiary may determine, in its sole discretion, without impairing or
otherwise affecting the other rights and remedies of Beneficiary:
(i) Beneficiary may direct Trustee to exercise Trustee's power
of sale with respect to the Trust Property, or any part thereof, in a
non-judicial procedure as permitted by applicable law. If Beneficiary
elects to exercise its power of sale with respect to the Real Estate
and Equipment, or any part thereof, Trustee shall record a notice of
default in each county in which any part of such Real Estate and
Equipment is located and shall mail copies of such notice in the manner
prescribed by applicable law. After the time required by applicable
law, Trustee shall give public notice of the sale to the persons and in
the manner prescribed by applicable law. Trustee, without demand on
Grantor, shall sell such Real Estate and Equipment at public auction to
the highest bidder at the time and place and under the terms designated
in the notice of sale in one or more parcels and in any order Trustee
determines. Trustee may postpone sale of all or any parcel of the Trust
Property in accordance with the provisions of applicable law. Trustee,
Beneficiary, or their designee, may purchase at any such sale. Upon
receipt of the price bid, Trustee shall deliver to the purchaser a
Trustee's deed conveying the Real Estate and Equipment that are sold.
The recitals in
17
42
the deed of compliance with applicable law shall be prima facie
evidence of such compliance and conclusive evidence thereof in favor of
bona fide purchasers and encumbrancers for value and without notice.
(ii) Beneficiary may, to the extent permitted by applicable
law, (A) institute and maintain an action of judicial foreclosure
against all or any part of the Trust Property (as described below), (B)
institute and maintain an action on the Notes, the Credit Agreement or
the other Security Documents, (C) direct the Trustee to sell all or
part of the Trust Property, or (D) take such other action at law or in
equity for the enforcement of this Deed of Trust or any of the Loan
Documents as the law may allow. Beneficiary may proceed in any such
action to final judgment and execution thereon for all sums due
hereunder, together with interest thereon at the Default Rate and all
costs of suit, including, without limitation, reasonable attorneys'
fees and disbursements. Interest at the Default Rate shall be due on
any judgment obtained by Beneficiary from the date of judgment until
actual payment is made of the full amount of the judgment.
(iii) Beneficiary may personally, or by its agents, attorneys
and employees and without regard to the adequacy or inadequacy of the
Trust Property or any other collateral as security for the Indebtedness
and Obligations enter into and upon the Trust Property and each and
every part thereof and exclude Grantor and its agents and employees
therefrom without liability for trespass, damage or otherwise (Grantor
hereby agreeing to surrender possession of the Trust Property to
Beneficiary upon demand at any such time) and use, operate, manage,
maintain and control the Trust Property and every part thereof.
Following such entry and taking of possession, Beneficiary shall be
entitled, without limitation, (x) to lease all or any part or parts of
the Trust Property for such periods of time and upon such conditions as
Beneficiary may, in its discretion, deem proper, (y) to enforce, cancel
or modify any Lease and (z) generally to execute, do and perform any
other act, deed, matter or thing concerning the Trust Property as
Beneficiary shall deem appropriate as fully as Grantor might do.
Grantor acknowledges that it has been advised that Beneficiary
recognizes the value of the security covered hereby is inextricably intertwined
with the effectiveness of the management, maintenance and general operation of
the Trust Property, and that Beneficiary would not extend the Indebtedness
secured hereby unless it could be assured that Trustee would have the right to
take possession of the Trust Property in order to manage or to control
management thereof, and to enjoy the income, rents and profits therefrom,
immediately upon default by Grantor hereunder, notwithstanding that foreclosure
proceedings may not have been instituted, or are pending, or the redemption
period may not have expired. Accordingly, Grantor hereby knowingly,
intelligently and voluntarily waives all right to possession of the Trust
Property from and after the occurrence of an Event of Default hereunder, upon
demand for possession by Beneficiary, and Grantor agrees not to assert any
objection or defense to Beneficiary's request or petition to a court for
possession. The rights hereby conferred upon Beneficiary have been agreed upon
prior to any default by Grantor hereunder and the exercise by Beneficiary of any
such rights shall not be deemed to put Beneficiary in the status of a "mortgagee
in possession". Grantor acknowledges that this provision is material to this
18
43
transaction and that Beneficiary would not extend the Indebtedness secured
hereby but for this paragraph.
(b) The holder of this Deed of Trust, in any action to
foreclose it, shall be entitled to the appointment of a receiver. In case of a
foreclosure sale, the Real Estate may be sold, at Beneficiary's election, in one
parcel or in more than one parcel and if in more than one parcel the same may be
divided as Beneficiary may elect and Beneficiary is specifically empowered,
(without being required to do so, and in its sole and absolute discretion) to
cause successive sales of portions of the Trust Property to be held. At the
election of Beneficiary, the Trust Property may be offered first in parcels and
then as a whole, the offer producing the highest price for the entire property
offered to prevail. Grantor hereby waives any right to require any such sale to
be made in parcels or any right to select such parcels.
(c) In the event of any breach of any of the covenants,
agreements, terms or conditions contained in this Deed of Trust, and
notwithstanding to the contrary any exculpatory or non-recourse language which
may be contained herein, Beneficiary shall be entitled to enjoin such breach and
obtain specific performance of any covenant, agreement, term or condition and
Beneficiary shall have the right to invoke any equitable right or remedy as
though other such rights and remedies were provided for in this Deed of Trust.
(d) In the event of a default because of the existence of any
lien upon the Trust Property, Beneficiary shall have the right (without being
obligated to do so or to continue to do so), without notice to Grantor, to
advance on and for the account of Grantor such sums as Beneficiary in its sole
discretion deems necessary to cure such default or to induce the holder of any
such lien to forbear from exercising its rights thereunder. Notwithstanding
anything herein to the contrary, the repayment of all such advances, with
interest thereon at the Default Rate from the date of each such advance, shall
be immediately due and payable without demand.
16. Right of Beneficiary to Credit Sale. Upon the occurrence
of any sale made under this Deed of Trust, whether made under the power of sale
or by virtue of judicial proceedings or of a judgment or decree of foreclosure
and sale, Beneficiary may bid for and acquire the Trust Property or any part
thereof. In lieu of paying cash therefor, Beneficiary may make settlement for
the purchase price by crediting upon the Indebtedness or other sums secured by
this Deed of Trust the net sales price after deducting therefrom the expenses of
sale and the cost of the action and any other sums which Beneficiary is
authorized to deduct under this Deed of Trust. In such event, this Deed of
Trust, the Notes and other instruments evidencing the Indebtedness and any and
all documents evidencing expenditures secured hereby may be presented to the
person or persons conducting the sale in order that the amount so used or
applied may be credited upon the Indebtedness as having been paid.
17. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Beneficiary as a matter of right and without notice
to Grantor, unless otherwise required by applicable law, and without regard to
the adequacy or inadequacy of the Trust Property or any other collateral as
security for the Indebtedness and Obligations or
19
44
the interest of Grantor therein, shall have the right to apply to any court
having jurisdiction to appoint a receiver or receivers or other manager of the
Trust Property, without requiring the posting of a surety bond and without
reference to the adequacy or inadequacy of the value of the Trust Property or
the solvency or insolvency of Grantor or any other party obligated for payment
of all or any part of the Indebtedness, and whether or not waste has occurred
with respect to the Trust Property. Grantor hereby irrevocably consents to
such appointment and waives notice of any application therefor (except as may
be required by law). Any such receiver or receivers shall have all the usual
powers and duties of receivers in like or similar cases and all the powers and
duties of Beneficiary in case of entry as provided in this Deed of Trust,
including, without limitation and to the extent permitted by law, the right to
enter into leases of all or any part of the Trust Property, and shall continue
as such and exercise all such powers until the date of confirmation of sale of
the Trust Property unless such receivership is sooner terminated.
18. Extension, Release, etc. (a) Without affecting the charge
of this Deed of Trust upon any portion of the Trust Property not then or
theretofore released as security for the full amount of the Indebtedness,
Beneficiary may, from time to time and without notice, agree to (i) release any
person liable for the Indebtedness, (ii) extend the maturity or alter any of the
terms of the Indebtedness or any guaranty thereof, (iii) grant other
indulgences, (iv) release or reconvey, or cause to be released or reconveyed at
any time at Beneficiary's option any parcel, portion or all of the Trust
Property, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make compositions or other arrangements
with debtors in relation thereto. If at any time this Deed of Trust shall secure
less than all of the principal amount of the Indebtedness, it is expressly
agreed that any repayments of the principal amount of the Indebtedness shall not
reduce the amount of the encumbrance of this Deed of Trust until the encumbrance
amount shall equal the principal amount of the Indebtedness outstanding.
(b) No recovery of any judgment by Beneficiary and no levy of
an execution under any judgment upon the Trust Property or upon any other
property of Grantor shall affect the encumbrance of this or any liens, rights,
powers or remedies of Beneficiary hereunder, and such liens, rights, powers and
remedies shall continue unimpaired.
(c) If Beneficiary shall have the right to foreclose this Deed
of Trust, Grantor authorizes Beneficiary at its option to foreclose the lien of
this Deed of Trust subject to the rights of any tenants of the Trust Property.
The failure to make any such tenants parties defendant to any such foreclosure
proceeding and to foreclose their rights will not be asserted by Grantor as a
defense to any proceeding instituted by Beneficiary to collect the Indebtedness
or to foreclose this Deed of Trust.
(d) Unless expressly provided otherwise, in the event that
ownership of this Deed of Trust and title to the Trust Property or any estate
therein shall become vested in the same person or entity, this Deed of Trust
shall not merge in such title but shall continue as a valid charge on the Trust
Property for the amount secured hereby.
20
45
19. Security Agreement under Uniform Commercial Code. (a) It
is the intention of the parties hereto that this Deed of Trust shall constitute
a Security Agreement within the meaning of the Uniform Commercial Code (the
"CODE") of the State in which the Trust Property is located. If an Event of
Default shall occur under this Deed of Trust, then in addition to having any
other right or remedy available at law or in equity, Beneficiary shall have the
option of either (i) proceeding under the Code and exercising such rights and
remedies as may be provided to a secured party by the Code with respect to all
or any portion of the Trust Property which is personal property (including,
without limitation, taking possession of and selling such property) or (ii)
treating such property as real property and proceeding with respect to both the
real and personal property constituting the Trust Property; or in accordance
with Beneficiary's rights, powers and remedies with respect to the real property
(in which event the default provisions of the Code shall not apply). If
Beneficiary shall elect to proceed under the Code, then five days' notice of
sale of the personal property shall be deemed reasonable notice and the
reasonable expenses of retaking, holding, preparing for sale, selling and the
like incurred by Beneficiary shall include, but not be limited to, reasonable
attorneys' fees and legal expenses. At Beneficiary's request, during the
continuance of an Event of Default, Grantor shall assemble the personal property
and make it available to Beneficiary at a place designated by Beneficiary which
is reasonably convenient to both parties.
(b) Grantor and Beneficiary agree, to the extent permitted by
law, that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this Deed of
Trust upon recording or registration in the real estate records of the proper
office shall constitute a financing statement filed as a "fixture filing" within
the meaning of Sections 9-313 and 9-402 of the Code; (iii) Grantor is the record
owner of the Real Estate; (iv) the mailing addresses of Grantor and Beneficiary
are as set forth on the first page of this Deed of Trust; (v) Grantor's federal
tax identification number is 00-0000000 and (vi) Beneficiary's federal tax
identification number is 00-0000000. In addition, for purposes of Article 9 of
the Uniform Commercial Code, (i) Grantor is the "debtor", (ii) Beneficiary is
the "secured party" and (iii) information concerning the security interest
created hereby may be obtained from Beneficiary at its address on the first page
of this Deed of Trust.
(c) Grantor, upon request by Beneficiary from time to time,
shall execute, acknowledge and deliver to Beneficiary one or more separate
security agreements, in form satisfactory to Beneficiary in its reasonable
discretion, covering all or any part of the Trust Property and will further
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, any financing statement, affidavit, continuation statement or
certificate or other document as Beneficiary may request in order to perfect,
preserve, maintain, continue or extend the security interest under and the
priority of this Deed of Trust and such security instrument. Grantor further
agrees to pay to Beneficiary on demand all reasonable costs and expenses
incurred by Beneficiary in connection with the preparation, execution,
recording, filing and re-filing of any such document and all reasonable costs
and expenses of any record searches for financing statements Beneficiary shall
reasonably require. If Grantor shall fail to furnish any financing or
continuation statement within 10 days after request by Beneficiary, then
pursuant to the provisions of the Code, Grantor hereby authorizes
21
46
Beneficiary, without the signature of Grantor, to execute and file any such
financing and continuation statements. The filing of any financing or
continuation statements in the records relating to personal property or chattels
shall not be construed as in any way impairing the right of Beneficiary to
proceed against any personal property encumbered by this Deed of Trust as real
property, as set forth above.
20. Assignment of Rents. Grantor hereby absolutely and
unconditionally assigns, transfers, conveys and sets over to Beneficiary, the
Rents as further security for the payment of the Indebtedness and performance of
the Obligations, and Grantor grants to Beneficiary the right to enter the Trust
Property for the purpose of collecting the same and to let the Trust Property or
any part thereof and to apply the Rents on account of the Indebtedness. The
foregoing assignment and grant is present and absolute and shall continue in
effect until the Indebtedness is paid in full, but Beneficiary hereby waives the
right to enter the Trust Property for the purpose of collecting the Rents,
letting the Trust Property or any part thereof or applying the Rents and Grantor
shall be entitled to collect, receive, use and retain the Rents until the
occurrence of an Event of Default under this Deed of Trust; such right of
Grantor to collect, receive, use and retain the Rents may be revoked by
Beneficiary upon the occurrence of any Event of Default under this Deed of Trust
by giving not less than five days' written notice of such revocation to Grantor;
in the event such notice is given, Grantor shall pay over to Beneficiary, or to
any receiver appointed to collect the Rents, any lease security deposits, and
shall pay monthly in advance to Beneficiary, or to any such receiver, the fair
and reasonable rental value as determined by Beneficiary for the use and
occupancy of the Trust Property or of such part thereof as may be in the
possession of Grantor or any affiliate of Grantor, and upon default in any such
payment Grantor and any such affiliate will vacate and surrender the possession
of the Trust Property to Beneficiary or to such receiver, and in default thereof
may be evicted by summary proceedings or otherwise. Grantor shall not accept
prepayments of installments of Rent to become due for a period of more than one
month in advance (except for security deposits and estimated payments of
percentage rent, if any).
21. Trust Funds. All lease security deposits of the Real
Estate shall be treated as trust funds not to be commingled with any other funds
of Grantor. Within 10 days after request by Beneficiary, Grantor shall furnish
Beneficiary satisfactory evidence of compliance with this subsection, together
with a statement of all lease security deposits by lessees and copies of all
Leases not previously delivered to Beneficiary under which such security
deposits are held, which statement shall be certified by Grantor.
22. Additional Rights. The holder of any subordinate lien or
subordinate deed of trust on the Trust Property shall have no right to terminate
any Lease whether or not such Lease is subordinate to this Deed of Trust nor
shall any holder of any subordinate lien or subordinate mortgage join any tenant
under any Lease in any action to foreclose the lien or modify, interfere with,
disturb or terminate the rights of any tenant under any Lease. By recordation of
this Deed of Trust all subordinate lienholders under subordinate mortgages are
subject to and notified of this provision, and any action taken by any such
lienholder or mortgagee contrary to this provision shall be null and void. Upon
the occurrence of any Event of Default, Beneficiary may, in its sole discretion
and without regard to the adequacy
22
47
of its security under this Deed of Trust, apply all or any part of any amounts
on deposit with Beneficiary under this Deed of Trust against all or any part of
the Indebtedness. Any such application shall not be construed to cure or waive
any Default or Event of Default or invalidate any act taken by Beneficiary on
account of such Default or Event of Default.
23. Changes in Method of Taxation. In the event of the passage
after the date hereof of any law of any Governmental Authority deducting from
the value of the Premises for the purposes of taxation any lien or mortgage
thereon, or changing in any way the laws for the taxation of mortgages or deeds
of trust or debts secured thereby for federal, state or local purposes, or the
manner of collection of any such taxes, and imposing a tax, either directly or
indirectly, on mortgages or deeds of trust or debts secured thereby, the holder
of this Deed of Trust shall have the right to declare the Indebtedness due on a
date to be specified by not less than 30 days' written notice to be given to
Grantor unless within such 30-day period Grantor shall assume as an Obligation
hereunder the payment of any tax so imposed until full payment of the
Indebtedness and such assumption shall be permitted by law.
24. Notices. Grantor and Beneficiary hereby request that a
copy of any notice of default and a copy of any notice of sale hereunder shall
be mailed to each of them at the addresses set forth herein.
25. No Oral Modification. This Deed of Trust may not be
changed or terminated orally. Any agreement made by Grantor and Beneficiary
after the date of this Deed of Trust relating to this Deed of Trust shall be
superior to the rights of the holder of any intervening or subordinate mortgage,
lien or encumbrance. Grantor's execution of any written agreement between
Grantor and Beneficiary shall not be required for the effectiveness thereof as
between Grantor and Beneficiary.
26. Partial Invalidity. In the event any one or more of the
provisions contained in this Deed of Trust shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary anything contained in this Deed of
Trust or in any provisions of the Indebtedness or Loan Documents, the
obligations of Grantor and of any other obligor under the Indebtedness or Loan
Documents shall be subject to the limitation that Beneficiary shall not charge,
take or receive, nor shall Grantor or any other obligor be obligated to pay to
Beneficiary, any amounts constituting interest in excess of the maximum rate
permitted by law to be charged by Beneficiary.
27. Grantor's Waiver of Rights. To the fullest extent
permitted by law, Grantor waives the benefit of all laws now existing or that
may subsequently be enacted providing for (i) any appraisement before sale of
any portion of the Trust Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Trust Property from attachment, levy or sale under execution or
exemption from civil process. To the full extent Grantor may do so, Grantor
agrees that Grantor will not
23
48
at any time insist upon, plead, claim or take the benefit or advantage of any
law now or hereafter in force providing for any appraisement, valuation, stay,
exemption, extension or redemption, or requiring foreclosure of this Deed of
Trust before exercising any other remedy granted hereunder and Grantor, for
Grantor and its successors and assigns, and for any and all persons ever
claiming any interest in the Trust Property, to the extent permitted by law,
hereby waives and releases all rights of redemption, valuation, appraisement,
stay of execution, notice of election to mature or declare due the whole of the
secured indebtedness and marshalling in the event of foreclosure of the liens
hereby created.
28. Remedies Not Exclusive. Beneficiary shall be entitled to
enforce payment of the Indebtedness and performance of the Obligations and to
exercise all rights and powers under this Deed of Trust or under any of the
other Loan Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Indebtedness and Obligations may now or
hereafter be otherwise secured, whether by deed of trust, mortgage, security
agreement, pledge, lien, assignment or otherwise. Neither the acceptance of this
Deed of Trust nor its enforcement, shall prejudice or in any manner affect
Beneficiary's right to realize upon or enforce any other security now or
hereafter held by Beneficiary, it being agreed that Beneficiary shall be
entitled to enforce this Deed of Trust and any other security now or hereafter
held by Beneficiary in such order and manner as Beneficiary may determine in its
absolute discretion. No remedy herein conferred upon or reserved to Beneficiary
is intended to be exclusive of any other remedy herein or by law provided or
permitted, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by any of the Loan Documents to Beneficiary
or to which either may otherwise be entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
Beneficiary. In no event shall Beneficiary, in the exercise of the remedies
provided in this Deed of Trust (including, without limitation, in connection
with the assignment of Rents, or the appointment of a receiver and the entry of
such receiver on to all or any part of the Trust Property), be deemed a
"mortgagee in possession," and Beneficiary shall not in any way be made liable
for any act, either of commission or omission, in connection with the exercise
of such remedies.
29. Multiple Security. If (a) the Premises shall consist of
one or more parcels, whether or not contiguous and whether or not located in the
same county, or (b) in addition to this Deed of Trust, Beneficiary shall now or
hereafter hold or be the mortgagee of one or more additional mortgages, liens,
deeds of trust or other security (directly or indirectly) for the Indebtedness
upon other property in the State in which the Premises are located (whether or
not such property is owned by Grantor or by others) or (c) both the
circumstances described in clauses (a) and (b) shall be true, then to the
fullest extent permitted by law, Beneficiary may, at its election, commence or
consolidate in a single foreclosure action all foreclosure proceedings against
all such collateral securing the Indebtedness (including the Trust Property),
which action may be brought or consolidated in the courts of any county in which
any of such collateral is located. Grantor acknowledges that the right to
maintain a consolidated foreclosure action is a specific inducement to
Beneficiary to extend the Indebtedness, and Grantor expressly and irrevocably
waives any objections to the commencement or consolidation of the foreclosure
proceedings in a single action and any
24
49
objections to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have. Grantor further agrees that if
Beneficiary shall be prosecuting one or more foreclosure or other proceedings
against a portion of the Trust Property or against any collateral other than the
Trust Property, which collateral directly or indirectly secures the
Indebtedness, or if Beneficiary shall have obtained a judgment of foreclosure or
similar judgment against such collateral, then, whether or not such proceedings
are being maintained or judgments were obtained in or outside the State in which
the Premises are located, Beneficiary may commence or continue any foreclosure
proceedings and exercise its other remedies granted in this Deed of Trust
against all or any part of the Trust Property and Grantor waives any objections
to the commencement or continuation of a foreclosure of this Deed of Trust or
exercise of any other remedies hereunder based on such other proceedings or
judgments, and waives any right to seek to dismiss, stay, remove, transfer or
consolidate either any action under this Deed of Trust or such other proceedings
on such basis. Neither the commencement nor continuation of proceedings to
foreclose this Deed of Trust nor the exercise of any other rights hereunder nor
the recovery of any judgment by Beneficiary in any such proceedings shall
prejudice, limit or preclude Beneficiary's right to commence or continue one or
more foreclosure or other proceedings or obtain a judgment against any other
collateral (either in or outside the State in which the Real Estate is located)
which directly or indirectly secures the Indebtedness, and Grantor expressly
waives any objections to the commencement of, continuation of, or entry of a
judgment in such other proceedings or exercise of any remedies in such
proceedings based upon any action or judgment connected to this Deed of Trust,
and Grantor also waives any right to seek to dismiss, stay, remove, transfer or
consolidate either such other proceedings or any sale or action under this Deed
of Trust on such basis. It is expressly understood and agreed that to the
fullest extent permitted by law, Beneficiary may, at its election, cause the
sale of all collateral which is the subject of a single foreclosure action at
either a single sale or at multiple sales conducted simultaneously and take such
other measures as are appropriate in order to effect the agreement of the
parties to dispose of and administer all collateral securing the Indebtedness
(directly or indirectly) in the most economical and least time-consuming manner.
30. Successors and Assigns. All covenants of Grantor contained
in this Deed of Trust are imposed solely and exclusively for the benefit of
Beneficiary and its respective successors and assigns, and no other person or
entity shall have standing to require compliance with such covenants or be
deemed, under any circumstances, to be a beneficiary of such covenants, any or
all of which may be freely waived in whole or in part by Beneficiary at any time
if in its sole discretion such waiver is deemed advisable. All such covenants of
Grantor shall run with the land and bind Grantor, the successors and assigns of
Grantor (and each of them) and all subsequent owners, encumbrancers and tenants
of the Trust Property, and shall inure to the benefit of Beneficiary, and its
respective successors and assigns. The word "Grantor" shall be construed as if
it read "Grantors" whenever the sense of this Deed of Trust so requires and if
there shall be more than one Grantor, the obligations of the Grantors shall be
joint and several.
31. No Waivers, etc. Any failure by Beneficiary to insist upon
the strict performance by Grantor of any of the terms and provisions of this
Deed of Trust shall not be deemed to be a waiver of any of the terms and
provisions hereof, and Beneficiary,
25
50
notwithstanding any such failure, shall have the right thereafter to insist upon
the strict performance by Grantor of any and all of the terms and provisions of
this Deed of Trust to be performed by Grantor. Beneficiary may release,
regardless of consideration and without the necessity for any notice to or
consent by the mortgagee of any subordinate mortgage or the holder of any
subordinate lien on the Trust Property, any part of the security held for the
obligations secured by this Deed of Trust without, as to the remainder of the
security, in anywise impairing or affecting the lien of this Deed of Trust or
the priority of such lien over any subordinate lien or mortgage.
32. Governing Law, etc. This Deed of Trust shall be governed
by and construed in accordance with the laws of the State in which the Premises
are located, except that Grantor expressly acknowledges that by its terms the
Credit Agreement shall be governed and construed in accordance with the laws of
the State of New York, without regard to principles of conflict of law, and for
purposes of consistency, Grantor agrees that in any in personam proceeding
related to this Deed of Trust the rights of the parties to this Deed of Trust
shall also be governed by and construed in accordance with the laws of the State
of New York governing contracts made and to be performed in that State, without
regard to principles of conflict of law.
33. Waiver of Trial by Jury. Grantor and Beneficiary each
hereby irrevocably and unconditionally waive trial by jury in any action, claim,
suit or proceeding relating to this Deed of Trust and for any counterclaim
brought therein.
34. Certain Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Deed of Trust shall be used interchangeably in singular or plural form
and the word "Grantor" shall mean "each Grantor or any subsequent owner or
owners of the Trust Property or any part thereof or interest therein," the word
"Beneficiary" shall mean "Beneficiary or any successor Administrative Agent,"
the word "Notes" shall mean "the notes that may from time to time be given
pursuant to the terms of the Credit Agreement or any other evidence of
indebtedness secured by this Deed of Trust" the word "person" shall include any
individual, corporation, partnership, trust, unincorporated association,
government, governmental authority, or other entity, and the words "Trust
Property" shall include any portion of the Trust Property or interest therein.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa. The captions in this
Deed of Trust are for convenience or reference only and in no way limit or
amplify the provisions hereof.
35. Reconveyance of Deed of Trust. Upon payment in full of the
Indebtedness, the termination of all Commitments under the Credit Agreement
secured hereby and the compliance with the Obligations then required to be
complied with, Beneficiary shall direct the Trustee to execute and deliver the
encumbrance of this Deed of Trust. If any of the Trust Property shall be sold,
transferred or otherwise disposed of by Grantor in a transaction expressly
permitted by the Credit Agreement, then Beneficiary shall execute and deliver to
Grantor (at the sole cost and expense of Grantor) all releases, reconveyances or
other
26
51
documents reasonably necessary or desirable for the release of such Trust
Property from the encumbrance of this Deed of Trust.
36. Conflict with Credit Agreement. In the event of any
conflict or inconsistency between the terms and provisions of this Deed of Trust
and the terms and provisions of the Credit Agreement, the terms and provisions
of the Credit Agreement shall govern, other than with respect to the Section of
this Deed of Trust captioned "Governing Law, etc.". By their execution of the
Credit Agreement, each Lender hereby agrees that it shall not have the right to
institute any suit for enforcement of Notes or any other Indebtedness secured by
this Deed of Trust or any other Security Document, if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would, under
applicable law, result in the surrender, impairment, waiver or loss of the Lien
of this Deed of Trust or any other Security Document or impede or delay the
enforcement of the Lien of this Deed of Trust or any other Security Document.
37. Revolving Credit Loans. A portion of the Indebtedness
secured by this Deed of Trust is a revolving line of credit under which
advances, payments and readvances may be made from time to time.
38. Successor Trustee. Beneficiary shall have the right to
appoint a substitute, or a successor trustee, to act as Trustee hereunder by
written designation. Such right shall extend to the appointment of other
successor and substitute trustees successively until the Indebtedness hereby
secured has been paid in full or until the Trust Property is sold hereunder, and
each substitute and successor trustee shall succeed to all the rights and powers
of the original Trustee named herein.
27
52
This Deed of Trust has been duly executed by Grantor on the
date first above written.
DAY INTERNATIONAL, INC.
By: _______________________________
Name:
Title:
ATTEST:
__________________________________
Name:
Title:
00
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
I, ___________ , a Notary Public of the County and State
aforesaid, certify that ___________________ personally came before me this day
and acknowledged that he (or she) is ______________________ of DAY
INTERNATIONAL, INC., a Delaware corporation, and that by authority duly given
and as the act of the corporation, the foregoing instrument was signed in its
name by ____________________ , its ______________ , sealed with its corporate
seal and attested by himself (or herself) as its __________________________ .
Witness my hand and official stamp or seal, this ____ day of January, 1998.
______________________________
Notary Public
My commission expires:
29
Schedule A
Buncombe County, North Carolina
Beginning at a point, said point being at the intersection of the center lines
of Xxxxx Bridge Road and old Shoals Road, said point also being located Xxxxx
00x00'00" Xxxx 133.34 feet; Xxxxx 00x00'00" Xxxx 340.25 feet; Xxxxx 00x00'00"
Xxxx 914.53 feet; Xxxxx 00x00'00" Xxxx 61.82 feet; Xxxxx 00x00'00" Xxxx 62.65
feet; Xxxxx 00x00'00" Xxxx 68.95 feet; Xxxxx 00x00'00" Xxxx 153.60 feet; Xxxxx
00x00'00" Xxxx 181.74 feet; Xxxxx 00x00'00" Xxxx 56.20 feet; Xxxxx 00x00'00"
Xxxx 75.00 feet; Xxxxx 00x00'00" Xxxx 104.55 feet from the beginning corner of
Tract 1 as set forth and described in Deed recorded in deed Book 1440, at page
175, of the Buncombe County public Registry, reference to which is hereby made,
and runs thence from said beginning point and following Xxxxx Xxxxxx Xxxx Xxxxx
00x00'00" Xxxx 104.88 feet; thence North 85o49'00" East 75.00 feet; thence
North 71o36'59" East 56.20 feet; thence North 40o56'00" East 161.74 feet;
thence North 33o38'00" East 153.60 feet; thence North 37o26'00" East 68.95
feet; thence North 50o39'00" East 82.85 feet; thence Xxxxx 00x00'00" Xxxx 61.82
feet; thence north 68o25'00" East 12.98 feet; thence leaving Xxxxx Xxxxxx Xxxx
Xxxxx 00x00'00" Xxxx 953.50 feet to an iron pipe; thence Xxxxx 00x00'00" Xxxx
670.81 feet to an iron pipe at the northeast corner of the property of Carolina
Power & Light Company recorded in Deed Book 1508, page 262; thence with the
north and west lines of said Carolina Power & Light tract South 58o39'57" West
233.68 feet to a concrete monument and Xxxxx 00x00'00" Xxxx 342.14 to a point
in Old Shools Road: thence with Xxx Xxxxxx Xxxx Xxxxx 00x00'00" Xxxx 181.37
feet; thence north 74o30'00" West 100.00 feet; thence North 70o32'00" West
260.00 feet; thence North 51o05'00" West 100.00 feet; thence North 43o07'00"
West 300.00 feet; thence North 47o15'00" West 300.00 feet; thence North
36o17'00" West 50.00 feet; thence North 16o41'00" West 50.00 feet; thence North
10o26'00" West 140.00 feet; thence North 18o30'00" West 100.00 feet; thence
North 21o12'00" West 52.66 feet; thence North 22o60'47" West 100.99 feet;
thence North 25o33'00" West 307.85 feet to the place of beginning. Continuing
28.09 acres more or less, and being a portion of the 30 acre tract shown on a
survey of the property of Naige Company dated June 30, 1987, by Xxxxxxx X.
Xxxxx, R.L.S., and being a portion of that property described in a deed from
Naige Company to Day International Corporation, dated July 9, 1987, and
recorded in Deed Book 1483, page 436. Buncombe County Registry.
TOGETHER WITH the drainage easement as set forth in Deed Book 1837, page 181.
