Exhibit 10.6
______________________________________________________________________________
THIS SPACE FOR RECORDER'S USE ONLY
Date: November 13, 2003
RECORDING REQUESTED BY:
Xxxx Xxxxxxxx, Esq.
AND WHEN RECORDED MAIL TO:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND
FIXTURE FILING
grantor: X'Xxxxxxxx Industries, INC., a delaware corporation
GRANTEE AND BENEFICIARY: THE BANK OF NEW YORK
GRANTEE MAILING ADDRESS: 000 XXXXXXX XXXXXX, 0XX XXXXX XXXX
XXX XXXX, XXX XXXX 00000
TRUSTEE: TITLE INSURERS AGENCY, INC.
LEGAL DESCRIPTION: SEE EXHIBIT "A" ATTACHED HERETO
DEED REFERENCE (IF APPLICABLE): N/A
______________________________________________________________________________
iii
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS............................................................................................5
1.1 Defined Terms...................................................................................5
1.2 Intentionally Omitted...........................................................................7
1.3 Indenture and UCC Definitions...................................................................8
ARTICLE II. GENERAL COVENANTS AND PROVISIONS......................................................................8
2.1 Grantor Performance of Note Documents...........................................................8
2.2 General Representations, Covenants and Warranties...............................................8
2.3 Intentionally Deleted...........................................................................8
2.4 Insurance; Application of Insurance Proceeds; Application of Eminent Domain Proceeds............8
2.5 Assignment of Rents.............................................................................9
2.6 Indemnification.................................................................................9
2.7 Beneficiary Assumes No Secured Obligations......................................................9
2.8 Further Assurances; Recording of Deed of Trust.................................................10
2.9 Acts of Grantor................................................................................10
2.10 After-Acquired Property........................................................................11
2.11 Reasonable Use and Occupancy...................................................................11
2.12 Hazardous Substances...........................................................................11
2.13 Site...........................................................................................11
2.14 Attorney-In-Fact...............................................................................12
2.15 Beneficiary May Perform; No Obligation.........................................................12
2.16 Security Agreement.............................................................................12
ARTICLE III. REMEDIES............................................................................................13
3.1 Acceleration of Maturity.......................................................................13
3.2 Protective Advances............................................................................14
3.3 Institution of Equity Proceedings..............................................................14
3.4 Beneficiary's Power of Enforcement.............................................................14
3.5 Beneficiary's Right to Enter and Take Possession, Operate and Apply Income.....................15
3.6 Separate Sales.................................................................................16
3.7 Receiver.......................................................................................16
3.8 Suits to Protect the Trust Estate..............................................................17
3.9 Proofs of Claim................................................................................17
3.10 Grantor to Pay Amounts Secured Hereby on Any Default in Payment; Application of Monies
by Beneficiary.................................................................................17
3.11 Delay or Omission; No Waiver...................................................................18
3.12 No Waiver of One Default to Affect Another.....................................................18
3.13 Discontinuance of Proceedings; Position of Parties Restored....................................19
3.14 Remedies Cumulative............................................................................19
3.15 Foreclosure; Expenses of Litigation............................................................19
3.16 Deficiency Judgments...........................................................................20
3.17 Exculpation of Beneficiary.....................................................................20
ARTICLE IV. RIGHTS AND RESPONSIBILITIES OF TRUSTEE; OTHER PROVISIONS RELATING TO TRUSTEE.........................20
4.1 Exercise of Remedies by Trustee................................................................20
4.2 Rights and Privileges of Trustee...............................................................21
4.3 Resignation or Replacement of Trustee..........................................................21
4.4 Authority of Beneficiary.......................................................................21
4.5 Effect of Appointment of Successor Trustee.....................................................21
4.6 Confirmation of Transfer and Succession........................................................22
4.7 Exculpation....................................................................................22
4.8 Endorsement and Execution of Documents.........................................................22
4.9 Multiple Trustees..............................................................................22
4.10 No Required Action.............................................................................22
4.11 Terms of Trustee's Acceptance..................................................................23
4.12 Intercreditor Agreement........................................................................23
ARTICLE V. GENERAL...............................................................................................23
5.1 Discharge......................................................................................23
5.2 Application of Proceeds........................................................................23
5.3 Extension, Rearrangement or Renewal of Secured Obligations.....................................24
5.4 Forcible Detainer..............................................................................24
5.5 Waiver of Stay or Extension....................................................................24
5.6 Application of Payments........................................................................24
5.7 Amendments; Etc................................................................................25
5.8 Renewal; Etc...................................................................................25
5.9 Future Advances................................................................................25
5.10 Compliance With Usury Law......................................................................25
5.11 Notices........................................................................................26
5.12 Severability...................................................................................26
5.13 Survival of Provisions.........................................................................26
5.14 Successions or Assignments.....................................................................26
5.15 Headings Descriptive...........................................................................27
5.16 Entire Agreement...............................................................................27
5.17 Counterparts...................................................................................27
5.18 Governing Law..................................................................................27
5.19 Waiver of Jury Trial...........................................................................27
5.20 Third Party Rights.............................................................................27
5.21 Certain Definitions............................................................................28
EXHIBITS
Exhibit A - Description of Premises
2
This DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING, dated as of
November 13, 2003 (as amended, amended and restated, supplemented or otherwise modified from time to time, this
"Deed of Trust") by X'XXXXXXXX INDUSTRIES, INC, a corporation formed under the laws of the State of Delaware
("Grantor"), whose address is 0000 Xxxx Xxxxxx, Xxxxx, XX 00000, to Title Insurers Agency, Inc., as trustee
("Trustee"), whose address is 000 X. Xxxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000, for the benefit of The Bank of
New York, as trustee under the Indenture referred to below and as beneficiary for itself and the Holders under
the Indenture (in such capacity, together with its successors and assigns, "Beneficiary"), whose address is 000
Xxxxxxx Xxxxxx-0X, Xxx Xxxx, XX 00000 for each of the Holders.
RECITALS
A........The Holders have agreed to extend certain financial accommodations to the Grantor
pursuant to the Indenture (as hereinafter defined) in an aggregate principal amount not to exceed $100,000,000,
as evidenced by those certain 10.63% Senior Secured Notes due 2008, dated September 29, 2003, executed by Grantor
(collectively, the "Notes"). The terms of the Notes are governed by that certain Indenture, dated as of
September 29, 2003 (said Indenture, together with all amendments, supplements, modifications and replacements
thereof, being referred to in this Mortgage as the "Indenture"), by and among Grantor, Beneficiary and each of
the guarantors party thereto. All capitalized terms used herein and not defined herein shall have the meanings
ascribed to them in the Indenture. The terms and provisions of the Indenture are hereby incorporated by
reference in this Deed of Trust.
B........This Deed of Trust is given to secure the Obligation under the Indenture including and
without limitation repayment of the Notes.
C........As set forth more fully below, Grantor intends to secure its payment and performance
of its obligations under the Indenture with the Trust Estate (as defined below), along with various other items
of personal and real property owned by Grantor.
Agreement
NOW, THEREFORE, to secure the prompt and complete payment when and as due and payable of all of
the Obligations and liabilities of Grantor to Beneficiary and the Holders, (collectively, the "Secured Parties"),
arising out of or in connection with the Indenture and the obligations of Grantor set forth herein (collectively,
the "Secured Obligations") and pursuant to the Indenture executed by Grantor in favor of Beneficiary, and in
consideration of the covenants herein contained and in the Indenture, Grantor, intending to be legally bound,
does hereby grant, bargain, sell, convey, warrant, assign, transfer, mortgage, pledge, set over and confirm unto
Trustee in trust for Beneficiary, with power of sale, as set forth in this Deed of Trust, for the benefit of
Beneficiary and the other Secured Parties, all of Grantor's estate, right, title, interest, property, claim and
demand, now or hereafter arising, in and to the following property and rights (collectively, the "Trust Estate"):
(a) The interest of Grantor in and to the lands and premises more particularly described
in Exhibit A (the "Premises"), together with all tenements, hereditaments and appurtenances thereto, and
also Grantor's rights in and to (i) any land lying within the right-of-way of any streets, open or
proposed, adjoining the same, (ii) any easements, natural gas pipelines, rights-of-way and rights used
in connection therewith or as a means of access thereto, all easements for ingress and egress and
easements for water and sewage pipelines, running in favor of Grantor, or appurtenant to the Premises,
(collectively, the "Easements"), (iii) any and all sidewalks, alleys, strips and gores of land adjacent
thereto or used in connection therewith and (iv) all water and water rights, ditches and ditch rights,
stock or interest in irrigation companies or districts (the Premises, the Easements and all of the
foregoing being hereinafter collectively referred to as the "Site");
(b) all buildings, structures, fixtures and other improvements now or hereafter erected on
the Site owned by Grantor, (collectively, the "Improvements");
(c) all machinery, apparatus, equipment, fittings, fixtures, boilers, turbines and other
articles of personal property, including all goods and all goods which become fixtures, now owned or
hereafter acquired by Grantor and now or hereafter located on, attached to or used in the operation of
or in connection with the Site and/or the Improvements, and all replacements thereof, additions thereto
and substitutions therefor, to the fullest extent permitted by applicable law (collectively, the
"Equipment");
(d) all raw materials, work in process and other materials used or consumed in the
construction of, or now or hereafter located on or used in connection with, the Site, the Improvements
and the Equipment, (including fuel and fuel deposits, now or hereafter located on the Site or elsewhere
or otherwise owned by Grantor) (together with the Equipment, the "Tangible Collateral");
(e) all rights, powers, privileges and other benefits of Grantor (to the extent
assignable) now or hereafter obtained by Grantor from any Governmental Authority, including Permits
issued in the name of Grantor, governmental actions relating to the ownership, operation, management and
use of the Site, the Improvements and the Equipment, and any improvements, modifications or additions
thereto;
(f) all the lands and interests in lands, tenements and hereditaments hereafter acquired
by Grantor in connection with or appurtenant to the Site, including all leases, subleases, lettings,
occupancy agreements, tenancies and licenses by Grantor as landlord of the Trust Estate or any part
thereof now or hereafter entered into, and all amendments, extensions, renewals and guarantees thereof,
and all security therefor (collectively, the "Leases") and all income, rents, rent equivalents, issues,
profits, revenues (including all oil and gas or other mineral royalties and bonuses), deposits and other
benefits from the Site and the Improvements (including all receivables and other obligations now
existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other
grant of the right of the use and occupancy of property or rendering of services by Grantor or any
operator or manager of the Trust Estate or the commercial space located in the Improvements or acquired
from others) (collectively, the "Rents") and all proceeds from the sale or other disposition of the
Leases and the right to receive and apply the Rents to the payment of the Secured Obligations;
(g) any and all other property in connection with or appurtenant to the Site that may from
time to time, by delivery or by writing of any kind, be subjected to the lien hereof by Grantor or by
anyone on its behalf or with its consent, or which may come into the possession or be subject to the
control of Trustee or Beneficiary pursuant to this Deed of Trust, being hereby collaterally assigned to
Beneficiary and subjected or added to the lien or estate created by this Deed of Trust forthwith upon
the acquisition thereof by Grantor, as fully as if such property were now owned by Grantor and were
specifically described in this Deed of Trust and subjected to the lien and security interest hereof; and
Trustee and Beneficiary are hereby authorized to receive any and all such property as and for additional
security hereunder;
(h) all the remainder or remainders, reversion or reversions, rents, revenues, issues,
profits, royalties, income and other benefits derived from any of the foregoing, all of which are hereby
assigned to Beneficiary, who is hereby authorized to collect and receive the same, to give proper
receipts and acquittances therefor and to apply the same in accordance with the provisions of this Deed
of Trust;
(i) all Proceeds, including all proceeds, products, offspring, rents, profits or receipts,
in whatever form, arising from the Trust Estate, including (i) cash, instruments and other property
received, receivable or otherwise distributed in respect of or in exchange for any or all of the Trust
Estate, (ii) the collection, sale, lease, sublease, concession, exchange, assignment, licensing or other
disposition of, or realization upon, any item or portion of the Trust Estate (including all claims of
Grantor against third parties for loss of, damage to, destruction of, or for proceeds payable under, or
unearned premiums with respect to, policies of insurance in respect of, any of the Trust Estate now
existing or hereafter arising), (iii) any and all proceeds of any insurance, indemnity, warranty or
Indenture payable to Grantor from time to time with respect to any of the Trust Estate, (iv) any and all
payments (in any form whatsoever) made or due and payable to Grantor from time to time in connection
with the requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Trust
Estate by any Governmental Authority (or any person acting under color of Governmental Authority) and
(v) any and all other amounts from time to time paid or payable under or in connection with any of the
Trust Estate;
(j) to the extent assignable, all agreements to which Grantor is a party or which are
assigned to Grantor in any management agreement or any other document and which are executed in
connection with the construction, operation and management of the Improvements located on the Trust
Estate (including agreements for the sale, lease or exchange of goods or other property and/or the
performance of services by it, in each case whether now in existence or hereafter arising or acquired)
as any such agreements have been or may be from time to time amended, supplemented or otherwise modified;
(k) to the extent assignable, all general intangibles, now owned or hereafter acquired by
Grantor, including (i) all obligations or indebtedness owing to Grantor from whatever source arising,
(ii) all unearned premiums accrued or to accrue under all insurance policies for the Trust Estate
obtained by Grantor, all proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or liquidated claims (including proceeds of insurance, condemnation awards, and all rights of
Grantor to refunds of real estate taxes and assessments), (iii) all royalties and license fees and (iv)
all rights or claims in respect of refunds for taxes paid;
(l) all instruments, chattel paper or letters of credit, evidencing, representing, arising
from or existing in respect of, relating to, securing or otherwise supporting the payment of, any of the
Trust Estate (including promissory notes, drafts, bills of exchange and trade acceptances) and chattel
paper obtained by Grantor in connection with the Trust Estate (including all ledger sheets, computer
records and printouts, databases, programs, books of account and files of Grantor relating thereto) and
such notes or other obligations of indebtedness owing to Grantor from whatever source arising, in each
case now owned or hereafter acquired by Grantor and relating to the Trust Estate;
(m) all inventory, whether now or hereafter existing or acquired, all documents
representing the same and all Proceeds and products of the same, including all goods, merchandise, raw
materials, work in process and other personal property, wherever located, now or hereafter owned or held
by Grantor for manufacture, processing, the providing of services or sale, use or consumption in the
operation of the Trust Estate (including fuel, supplies and similar items and all substances commingled
therewith or added thereto) and rights and claims of Grantor against anyone who may store or acquire the
same for the account of Grantor, or from whom Grantor may purchase the same; and
(n) to the extent assignable, all Permits used in connection with the ownership,
operation, use or occupancy of the Trust Estate, but excluding any of the Permits which by their terms
or by operation of law prohibit or do not allow assignment or which would become void solely by virtue
of a security interest being granted therein.
TO HAVE AND TO HOLD said Trust Estate, whether now owned or held or hereafter acquired, unto
Trustee for the benefit of Beneficiary, its successors and assigns, pursuant to the provisions of this Deed of
Trust.
IT IS HEREBY COVENANTED, DECLARED AND AGREED that the lien, security interest or estate created
by this Deed of Trust to secure the payment of the Secured Obligations, both present and future, shall be first,
prior and superior to any Lien, security interest, reservation of title or other interest heretofore,
contemporaneously or subsequently suffered or granted by Grantor, its legal representatives, successors or
assigns, except only those, if any, expressly hereinafter referred to and that the Trust Estate is to be held,
dealt with and disposed of by Beneficiary, upon and subject to the terms, covenants, conditions, uses and
agreements set forth in this Deed of Trust.
PROVIDED ALWAYS, that upon the indefeasible payment in full in cash of the Secured Obligations,
then this Deed of Trust and the estate hereby and therein granted shall cease and be void and shall be reconveyed
as provided herein below.
ARTICLE I.
DEFINITIONS
1.1 Defined Terms. The following terms (whether or not underscored) when used in this Deed of Trust,
including its preamble and recitals, shall have the following meanings:
"Beneficiary" has the meaning given in the preamble to this Deed of Trust.
"Company" has the meaning given in the recitals to this Deed of Trust.
"Default Rate" shall mean the default interest rate described in the second paragraph of
Section 4.01 of the Indenture.
"Easements" has the meaning given in the granting clause to this Deed of Trust.
"Environmental Claim" means any and all liabilities, losses, administrative, regulatory or
judicial actions, suits, demands, decrees, claims, liens, judgments, warning notices, notices of
noncompliance or violation, investigations, proceedings, removal or remedial actions or orders, or
damages (foreseeable and unforeseeable, including consequential and punitive damages), penalties, fees,
out-of-pocket costs, expenses, disbursements, attorneys' and/or consultants' fees, relating in any way
to any Hazardous Substance Law or any Permit issued under any such Hazardous Substance Law (hereafter
"Claims"), including (a) any and all Claims by Governmental Authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any applicable Hazardous Substance
Law, and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from Hazardous Substances or arising from alleged
injury or threat of injury to health, safety or the environment.
"Equipment" has the meaning given in the granting clause to this Deed of Trust.
"Governmental Authority" means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a foreign entity or government.
"Governmental Rule" means any law, rule, regulation, ordinance, order, code interpretation,
treaty, judgment, decree, directive, guidelines, policy or similar form of decision of any Governmental
Authority.
"Grantor" has the meaning given in the preamble to this Deed of Trust.
"Hazardous Substances" means (statutory acronyms and abbreviations having the meaning given
them in the definition of "Hazardous Substances Laws") substances defined as "hazardous substances," "pollutants"
or "contaminants" in Section 101 of the CERCLA; those substances defined as "hazardous waste," "hazardous
materials" or "regulated substances" by the RCRA; those substances designated as a "hazardous substance" pursuant
to Section 311 of the CWA; those substances defined as "hazardous materials" in Section 103 of the HMTA; those
substances regulated as a hazardous chemical substance or mixture or as an imminently hazardous chemical
substance or mixture pursuant to Sections 6 or 7 of the TSCA; those substances defined as "contaminants" by
Section 1401 of the SDWA, if present in excess of permissible levels; those substances regulated by the Oil
Pollution Act; those substances defined as a pesticide pursuant to Section 2(u) of the FIFRA; those substances
defined as a source, special nuclear or by-product material by Section 11 of the AEA; those substances defined as
"residual radioactive material" by Section 101 of the UMTRCA; those substances defined as "toxic materials" or
"harmful physical agents" pursuant to Section 6 of the OSHA; those substances defined as hazardous wastes in 40
C.F.R. Part 261.3; those substances defined as hazardous waste constituents in 40 C.F.R. Part 260.10,
specifically including Appendix VII and VIII of Subpart D of 40 C.F.R. Part 261; those substances designated as
hazardous substances in 40 C.F.R. Parts 116.4 and 302.4; those substances defined as hazardous substances or
hazardous materials in 49 C.F.R. Part 171.8; those substances regulated as hazardous materials, hazardous
substances, or toxic substances in 40 C.F.R. Part 1910; any chemical, material, toxin, pollutant, or waste
regulated by or in any other Hazardous Substances Laws; and in the regulations adopted and publications
promulgated pursuant to said laws, whether or not such regulations or publications are specifically referenced
herein.
"Hazardous Substances Law" means any of:
(a)......the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended (42 U.S.C. Section 9601 et seq.) ("CERCLA");
(b)......the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.) ("Clean Water
Act" or "CWA");
(c)......the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA");
(d)......the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) ("AEA");
(e)......the Clean Air Act (42 U.S.C. Section 7401 et seq.) ("CAA");
(f)......the Emergency Planning and Community Right to Know Act (42 U.S.C. Section 11001 et
seq.) ("EPCRA");
(g)......the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.)
("FIFRA");
(h)......the Oil Pollution Act of 1990 (33 U.S.C.A. Section 2701 et seq.);
(i)......the Safe Drinking Water Act (42 U.S.C. Sections 300f et seq.) ("SDWA");
(j)......the Surface Mining Control and Reclamation Act of 1974 (30 U.S.C. Sections 1201 et
seq.) ("SMCRA");
(k)......the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.) ("TSCA");
(l)......the Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.) ("HMTA");
(m)......the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. Section 7901 et
seq.) ("UMTRCA");
(n)......the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.) ("OSHA"); and
(o) all other Federal, state and local Governmental Rules which govern Hazardous
Substances, and the regulations adopted and publications promulgated pursuant to all such foregoing laws.
"Indenture" has the meaning given in the recitals to this Deed of Trust.
"Improvements" has the meaning given in the granting clause to this Deed of Trust.
"Leases" has the meaning given in the granting clause to this Deed of Trust.
"Premises" has the meaning given in the granting clause to this Deed of Trust.
"Rents" has the meaning given in the granting clause to this Deed of Trust.
"Secured Obligations" has the meaning given in the granting clause to this Deed of Trust.
"Secured Party" shall mean the Holders from time to time of any Note Obligations.
"Site" has the meaning given in the granting clause to this Deed of Trust.
"Tangible Collateral" has the meaning given in the granting clause to this Deed of Trust.
"Trust Estate" has the meaning given in the granting clause to this Deed of Trust.
"Trustee" has the meaning given in the preamble to this Deed of Trust.
"UCC" means the Uniform Commercial Code as the same may, from time to time, be in effect in the
State of Missouri.
"UCC Collateral" has the meaning given in Section 2.18.1 to this Deed of Trust.
1.2 Intentionally Omitted.
1.3 Indenture and UCC Definitions. Unless otherwise defined herein or unless the context otherwise
requires, terms used in this Deed of Trust (whether or not underscored or capitalized), including its preamble
and recitals, have the meanings provided in the Indenture or, if not defined therein, the UCC.
ARTICLE II.
GENERAL COVENANTS AND PROVISIONS
2.1 Grantor Performance of Note Documents. Grantor shall perform, observe and comply with each and every
provision hereof, and with each and every provision contained in the Note Documents to which it is a party
(insofar as any such provision applies to Grantor) and shall promptly pay to Beneficiary, when payment shall
become due under the Indenture, any and all amounts payable pursuant thereto and all other sums required to be
paid by Grantor under this Deed of Trust and the other Note Documents to which it is a party at the time and in
the manner provided in such Note Documents.
2.2 General Representations, Covenants and Warranties. Grantor represents and warrants, as of the date
hereof, and covenants that:
(a) Grantor has good and marketable title to the Site and the Improvements, free and clear of
all encumbrances except those Permitted Liens which are applicable to grantor and that it has the right
to hold, occupy and enjoy its interest in the Premises and has the power and lawful authority to grant,
bargain, sell, convey, warrant, assign, transfer, mortgage, pledge, set over and confirm the same as
provided herein as permitted by Section 3.5;
(b) all costs arising from construction of any Improvements, the performance of any labor and
the purchase of all Tangible Collateral and Improvements have been or shall be paid when due, subject to
the right of Company or Grantor to contest the date on which such amounts are due pursuant to the
Indenture, as applicable; and
(c) this Deed of Trust is a valid and enforceable first lien on and security interest in the
Trust Estate, subject only to those Permitted Liens which are applicable to Grantor, and Grantor shall
forever warrant, defend and preserve such title and the validity and priority of the Deed of Trust and
shall forever warrant and defend the same to Beneficiary and Trustee against the claims of all persons
whomsoever.
2.3 Intentionally Deleted.
2.4 Insurance; Application of Insurance Proceeds; Application of Eminent Domain Proceeds.
2.4.1 Grantor shall at its sole expense obtain for, deliver to, assign and maintain for the benefit of
Beneficiary, during the term of this Deed of Trust, insurance policies insuring the Site and liability insurance
policies, all in accordance with the requirements of the Note Documents. Grantor shall pay promptly when due any
premiums on such insurance policies and on any renewals thereof. In the event of the foreclosure of this Deed of
Trust or any other transfer of the Premises in extinguishment of the indebtedness and other sums secured hereby,
all right, title and interest of Grantor in and to all casualty insurance policies, and renewals thereof then in
force, shall pass to the purchaser or grantee in connection therewith; provided that Grantor's obligations shall
be reduced accordingly.
2.4.2 All insurance proceeds and all Eminent Domain Proceeds shall be paid and/or shall be applied in
accordance with the provisions of the Note Documents, including the applicable provisions of the Depository
Agreement.
2.5 Assignment of Rents. Grantor unconditionally and absolutely assigns to Beneficiary all of Grantor's
right, title and interest in and to all Leases and all Rents. This is an absolute assignment to Beneficiary and
not an assignment as security for the performance of the obligations of Grantor under the Note Documents to which
it is a party, or any other obligation. Subject to the provisions set forth herein, Beneficiary shall have the
right, power and authority to: (a) notify any person that the Leases have been assigned to Beneficiary and that
all rents and other obligations are to be paid directly to Beneficiary, whether or not Beneficiary has commenced
or completed foreclosure or taken possession of the Premises; (b) settle compromise, release, extend the time of
payment of, and make allowances, adjustments and discounts of any rents or other obligations under the Leases;
(c) enforce payment of rents and other rights under the Leases, prosecute any action or proceeding, and defend
against any claim with respect to rents and Leases; (d) enter upon, take possession of and operate the Premises,
lease all or any part of the Premises; (e) and/or perform any and all obligations of Grantor under the Leases and
exercise any and all rights of Grantor therein contained to the full extent of Grantor's rights and obligations
thereunder, with or without the bringing of any action or the appointment of a receiver; provided, however, that
Grantor shall have a revocable license to exercise these rights to the exclusions of Beneficiary until the
occurrence of an Event of Default. At Beneficiary's request, Grantor shall deliver a copy of this Deed of Trust
to each tenant under a Lease. Grantor irrevocably directs any tenant, without any requirement for notice to or
consent by Grantor, to comply with all demands of Beneficiary under this Section 2.5 and to turn over to
Beneficiary on demand all rents which it receives. Beneficiary shall have the right, but not the obligation, to
use and apply all rents received hereunder in such order and such manner as Beneficiary may reasonably determine
in accordance with the Note Documents. Notwithstanding that this is an absolute assignment of the rents and
Leases and not merely the collateral assignment of, or the grant of a lien or security interest in the rents and
Leases, Beneficiary grants to Grantor a revocable license to collect and receive the rents and to retain, use and
enjoy such rents. Such license may be revoked by Beneficiary only upon the occurrence of any Event of Default.
Grantor shall apply any rents which it receives to the payments due under the Secured Obligations, taxes,
assessments, water charges, sewer rents and other governmental charges levied, assessed or imposed against the
Premises, insurance premiums, and other obligations of lessor under the Leases before using such proceeds for any
other purpose.
2.6 Indemnification. Grantor shall indemnify Beneficiary in accordance with the applicable provisions of
the Indenture and the other Note Documents to which it is party.
2.7 Beneficiary Assumes No Secured Obligations. It is expressly agreed that, anything herein contained to
the contrary notwithstanding, Grantor shall remain obligated under all agreements which are included in the
definition of "Trust Estate" and shall perform all of its obligations thereunder in accordance with the
provisions thereof, and neither Beneficiary nor any of the other Secured Parties shall have any obligation or
liability with respect to such obligations of Grantor, nor shall Beneficiary or any of the other Secured Parties
be required or obligated in any manner to perform or fulfill any obligations or duties of Grantor under such
agreements, or to make any payment or to make any inquiry as to the nature or sufficiency of any payment received
by it, or to present or file any claim or take any action to collect or enforce the payment of any amounts which
have been assigned to Beneficiary hereunder or to which Beneficiary or the other Secured Parties may be entitled
at any time or times.
2.8 Further Assurances; Recording of Deed of Trust. Grantor shall, from time to time, at its expense,
promptly execute and deliver all further instruments and documents, and take all further action, that may be
necessary, in order to perfect and continue the lien and security interest granted hereby and to enable
Beneficiary to obtain the full benefits of the lien and security interest granted or intended to be granted
hereby. Grantor shall keep the Trust Estate free and clear of all Liens other than Permitted Liens.
2.8.1 Without limiting the generality of the foregoing, Grantor shall execute and record or file this Deed of
Trust and each amendment hereto, and such financing or continuation statements, or amendments thereto, and such
other instruments, endorsements or notices, as may be necessary in order to perfect and preserve the lien and
security interest granted or purported to be granted hereby. Grantor hereby authorizes Beneficiary to file one
or more financing statements or continuation statements, and amendments thereto, relative to all or any part of
the Trust Estate necessary to preserve or protect the lien and security interest granted hereby without the
signature of Grantor where permitted by law.
2.8.2 Grantor shall pay all filing, registration and recording fees and all refiling, re-registration and
re-recording fees, and all reasonable expenses incident to the execution and acknowledgment of this Deed of
Trust, any assurance, and all federal, state, county and municipal stamp taxes and other taxes, duties, imports,
assessments and charges arising out of or in connection with the execution and delivery of this Deed of Trust,
any agreement supplemental hereto, any financing statements, and any instruments of further assurance.
2.8.3 Grantor shall, promptly upon request, provide to Beneficiary all information and evidence it may
reasonably request concerning the Trust Estate to enable Beneficiary to administer or enforce the provisions of
this Deed of Trust.
2.8.4 Grantor will take all actions within its power to obtain like title to and the right to pledge any other
property at any time hereafter pledged by it to Beneficiary as part of the Trust Estate hereunder.
2.9 Acts of Grantor. Except as provided in or permitted by the Note Documents, Grantor hereby represents
and warrants that it has not mortgaged, hypothecated, assigned or pledged and hereby covenants that it will not
mortgage, hypothecate, assign or pledge, so long as this Deed of Trust shall remain in effect, any of its right,
title or interest in and to the Trust Estate or any part thereof or any interest in Grantor, to anyone other than
Beneficiary.
2.10 After-Acquired Property. Any and all of the Trust Estate which is hereafter acquired shall immediately,
without any further conveyance, assignment or act on the part of Grantor or Beneficiary, become and be subject to
the lien and security interest of this Deed of Trust as fully and completely as though specifically described
herein, but nothing contained in this Section 2.10 shall be deemed to modify or change the obligations of Grantor
under Sections 2.8 and 2.9 hereof. If and whenever from time to time Grantor shall hereafter acquire any real
property or interest therein which constitutes or is intended to constitute part of the Trust Estate hereunder,
Grantor shall promptly give notice thereof to Beneficiary and Grantor shall forthwith execute, acknowledge and
deliver to Beneficiary a supplement to this Deed of Trust, in form and substance reasonably satisfactory to
Beneficiary, subjecting the property so acquired to the lien of this Deed of Trust. At the same time, Grantor
shall deliver to Beneficiary an endorsement to the lender's policy of title insurance issued to Beneficiary
insuring the lien of this Deed of Trust which shall insure to Beneficiary, in form and substance reasonably
satisfactory to Beneficiary, that the lien of this Deed of Trust as insured under such title insurance policy
encumbers such later acquired property and that Grantor's title to such property meets all of the applicable
requirements of the Note Documents with respect to title to Grantor's real property.
2.11 Reasonable Use and Occupancy. In addition to the rights which Beneficiary may have herein, upon the
occurrence of any Event of Default which shall remain uncured, Beneficiary, at its option, may require Grantor to
pay monthly in advance to Beneficiary, or any receiver appointed to collect the rents, the fair and reasonable
rental value for the use and occupation of such part of the Trust Estate as may continued to be occupied by
Grantor or may require Grantor to vacate and surrender possession of the Trust Estate to Beneficiary or to such
receiver and, in default thereof, Grantor may be evicted by summary proceedings or otherwise.
2.12 Hazardous Substances. Grantor and the Trust Estate shall comply with all provisions of the Note
Documents relating to Environmental Claims and Hazardous Substances.
2.13 Site.
2.13.1 Grantor shall observe all applicable covenants, easements and other restrictions of record with respect
to the Site, the Easements or to any other part of the Trust Estate, in all material respects.
2.13.2 Grantor shall maintain all rights-of-way, easements, grants, privileges, licenses, certificates,
permits, entitlements, and franchises reasonably necessary for the use of the Trust Estate and will not, without
the prior consent of Beneficiary, which consent shall not be unreasonably withheld, consent to any public
restriction (including any zoning ordinance) or private restriction as to the use of the Trust Estate.
2.13.3 Grantor shall not, without the prior written consent of Beneficiary which consent shall not be
unreasonably withheld, or as provided in the Indenture, permit any of the fixtures or personalty to be removed at
any time from the Premises or Improvements, except in accordance with the express provisions of the Indenture or
unless Grantor shall replace said removed fixtures or personalty with fixtures or personalty, as the case may be,
of comparable quality.
2.13.4 Grantor shall permit Trustee and Beneficiary, and their respective agents, representatives and
employees, upon reasonable prior notice to Grantor, to inspect the Trust Estate during business hours as provided
in the Indenture, provided that such inspections shall not unreasonably interfere with the construction,
operation, maintenance, start-up or testing of the Trust Estate.
2.14 Attorney-In-Fact. Grantor hereby constitutes and appoints Beneficiary, acting for and on behalf of
itself and the other Secured Parties and each successor or assign of Grantor and the other Secured Parties, the
true and lawful attorney-in-fact of Grantor, with full power and authority in the place and stead of Grantor,
Beneficiary or otherwise to enforce all rights interests and remedies of Grantor with respect to the collateral,
including the right to:
(a) ask, demand, collect, receive, receipt for and xxx for any and all rents, income and other sums which
are assigned hereunder with full power to endorse the name of Grantor on all instruments given in payment or in
part payment thereof; and
(b) settle, adjust or compromise any claims thereunder as fully as Grantor itself could do and in its
discretion file any claim or take any action or proceeding, either in its own name or in the name of Grantor or
otherwise, which Beneficiary may deem necessary or appropriate to protect and preserve the right, title and
interest of Beneficiary in and to such rents, income and other sums and the security intended to be afforded
hereby;
provided, however, that Beneficiary shall not exercise the rights set forth in the immediately preceding
subparagraphs (a) and (b) unless an Event of Default has occurred and is continuing. This power of attorney is a
power coupled with an interest and shall be irrevocable.
2.15 Beneficiary May Perform; No Obligation. Upon the occurrence and during the continuation of an Event of
Default, then Beneficiary, among its other rights and remedies, shall have the right, but not the obligation, to
pay, observe or perform the same, in whole or in part, and with such modifications as Beneficiary reasonably
shall deem advisable. To the extent provided in the Note Documents, all sums, including reasonable attorneys
fees, so expended or incurred by Beneficiary by reason of the occurrence of such Event of Default, or by reason
of the bankruptcy or insolvency of Grantor, as well as, without limitation, sums expended or incurred to sustain
the lien or estate of this Deed of Trust or its priority, or to protect or enforce any rights of Beneficiary
hereunder, or to recover any of the Secured Obligations, or for repairs, maintenance, alterations, replacements
or improvements thereto or for the protection thereof, or for real estate taxes or other governmental assessments
or charges against any part of the Trust Estate, or premiums for insurance of the Trust Estate, shall be entitled
to the benefit of the lien on the Trust Estate as of the date of the recording of this Deed of Trust, shall be
deemed to be added to and be part of the Secured Obligations secured hereby, and shall be repaid by Grantor as
provided in the Note Documents.
2.16 Security Agreement.
2.16.1 This Deed of Trust shall also be a security agreement between Grantor and Beneficiary covering that
portion of the Trust Estate constituting personal property or fixtures (collectively, the "UCC Collateral")
governed by the UCC as the same may be more specifically set forth in any financing statement delivered in
connection with this Deed of Trust, and as further security for the payment and performance of the Secured
Obligations, Grantor hereby grants to Beneficiary a security interest in such portion of the Trust Estate to the
full extent that the Trust Estate may be subject to the UCC. In addition to Beneficiary's other rights
hereunder, Beneficiary shall have all rights of a secured party under the UCC. Grantor shall execute and deliver
to Beneficiary all financing statements and such further assurances to establish, create, perfect (to the extent
the same can be achieved by the filing of a financing statement) and maintain the validity and priority of
Beneficiary's security interests, and Grantor shall bear all costs thereof, including all UCC searches. Except
as otherwise provided in the Note Documents, if Beneficiary should dispose of any of the Trust Estate comprising
the UCC Collateral pursuant to the UCC, ten days' prior written notice by Beneficiary to Grantor shall be deemed
to be reasonable notice; provided, however, Beneficiary may dispose of such property in accordance with the
foreclosure procedures of this Deed of Trust in lieu of proceeding under the UCC. Beneficiary may, but shall not
be obligated to, from time to time execute and deliver at Grantor's expense, all continuation statements,
termination statements, amendments, partial releases, or other instruments relating to all financing statements
by and between Grantor and Beneficiary which are reasonably necessary to establish, create, perfect (to the
extent the same can be achieved by the filing of a financing statement) and maintain the validity and priority of
Beneficiary's security interests in the UCC Collateral or release such liens, as the case may be. Except as
otherwise provided in the Note Documents, upon the occurrence and during the continuation of an Event of Default,
(a) Beneficiary, in addition to any other rights and remedies which it may have, may exercise immediately and
without demand to the extent permitted by law, any and all rights and remedies granted to a secured party under
the UCC including, without limiting the generality of the foregoing, the right to take possession of the UCC
Collateral or any part thereof, and to take such other measures as Beneficiary may deem reasonably necessary for
the care, protection and preservation of such collateral and (b) upon request or demand of Beneficiary, Grantor
shall at its expense, assemble the UCC Collateral and make it available to Beneficiary at a convenient place
acceptable to Beneficiary. Grantor shall pay to Beneficiary on demand, any and all reasonable expenses,
including reasonable attorneys' fees and disbursements incurred or paid by Beneficiary in protecting the interest
in the UCC Collateral and in enforcing the rights hereunder with respect to such UCC Collateral.
2.16.2 Grantor and the Beneficiary agree, to the extent permitted by law, that: (i) 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 9-334 and 9-502 of the UCC; (ii) all or a part of the
Trust Estate are or are to become fixtures; and (iii) the addresses of Grantor and Beneficiary are as set forth
on the first page of this Deed of Trust.
ARTICLE III.
REMEDIES
3.1 Acceleration of Maturity. Upon the occurrence and during the continuation of an Event of Default,
Beneficiary may declare the Secured Obligations to be due and payable immediately, and upon such declaration such
principal and interest and other sums shall immediately become due and payable without demand, presentment,
notice or other requirements of any kind (all of which Grantor waives).
3.2 Protective Advances. Upon the occurrence and during the continuation of an Event of Default, then
without thereby limiting Beneficiary's other rights or remedies, waiving or releasing any of Grantor's
obligations, or imposing any obligation on Beneficiary, Beneficiary may either advance any amount owing or
perform any or all actions that Beneficiary considers necessary or appropriate (acting reasonably) to cure such
Event of Default. All such advances shall constitute "Protective Advances" and shall, until repaid, be secured
by this Deed of Trust. No sums advanced or performance rendered by Beneficiary shall cure, or be deemed a waiver
of, any Event of Default.
3.3 Institution of Equity Proceedings. Upon the occurrence and during the continuation of an Event of
Default, Beneficiary may institute an action, suit or proceeding in equity for specific performance of this Deed
of Trust, the Indenture or any other Note Document, all of which shall be specifically enforceable by injunction
or other equitable remedy.
3.4 Beneficiary's Power of Enforcement.
3.4.1 Upon the occurrence and during the continuation of an Event of Default, Beneficiary shall be entitled,
at its option and in its sole and absolute discretion, to prepare and record on its own behalf, or to deliver to
Trustee for recording, if appropriate, written declaration of default and demand for sale and written notice of
breach and election to sell (or other statutory notice) to cause the Trust Estate to be sold to satisfy the
Secured Obligations, and in the case of delivery to Trustee, Trustee shall cause said notice to be filed for
record.
3.4.2 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, Trustee without demand
on Grantor, shall be permitted to sell the Trust Estate or any portion thereof 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, of cash in lawful money of the United States payable at the time of sale. Trustee
may, for any cause it deems expedient, postpone the sale of all or any portion of said Trust Estate 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 Trustee may postpone such sale by
public announcement at the time fixed by the preceding postponement; provided, however, that Trustee shall give
Grantor notice of such postponement to the extent required by law. Trustee shall execute and deliver to the
purchaser its deed, xxxx of sale, or other instrument conveying said property so sold, but without any covenant
or warranty, express or implied. The recitals in such instrument of conveyance of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person, including Beneficiary, may bid at the sale.
3.4.3 After deducting all reasonable costs, fees and expenses of Trustee and of this Deed of Trust, including
costs of evidence of title and reasonable attorneys' fees of Trustee or Beneficiary in connection with a sale,
Trustee shall apply the proceeds of such sale as follows or as otherwise required by applicable law: to payment
of all sums expended under the terms hereof not then repaid, with accrued interest at the Default Rate if any,
then to the payment of all other sums then secured hereby and the remainder, if any, to the person or persons
legally entitled thereto.
3.4.4 Upon the occurrence and during the continuation of any Event of Default, Beneficiary may, either with or
without entry or taking possession of the Trust Estate, and without regard to whether or not the indebtedness 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 Event of Default existing at the time such earlier
action was commenced, proceed by any appropriate action or proceeding: (a) to enforce payment of the Secured
Obligations, to the extent permitted by law, or the performance of any term hereof or any other right; (b) to
foreclose this Deed of Trust in any manner provided by law for the foreclosure of mortgages or deeds of trust on
real property and to sell, as an entirety or in separate lots or parcels, the Trust Estate or any portion thereof
pursuant to the laws of the State of Missouri 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 reasonable costs and
expenses incident thereto, including reasonable attorneys' fees in such amount as shall be awarded by the court;
(c) to exercise any or all of the rights and remedies available to it under the Note Documents; and (d) to pursue
any other remedy available to it. 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.
3.4.5 The remedies described in this Section 3.4 may be exercised with respect to all or any portion of the
Tangible Collateral, either simultaneously with the sale of any real property encumbered hereby or independent
thereof. Beneficiary shall at any time be permitted to proceed with respect to all or any portion of the
Tangible Collateral in any manner permitted by the UCC. Grantor agrees that Beneficiary's inclusion of all or
any portion of the Tangible Collateral in a sale or other remedy exercised with respect to the real property
encumbered hereby, as permitted by the UCC, is a commercially reasonable disposition of such property.
3.4.6....The remedies described in this Section 3.4 shall be limited by applicable law.
3.5 Beneficiary's Right to Enter and Take Possession, Operate and Apply Income.
3.5.1 Upon the occurrence and during the continuation of an Event of Default, Grantor, upon demand of
Beneficiary, shall forthwith surrender to Beneficiary the actual possession and, if and to the extent permitted
by law, Beneficiary itself, or by such officers or agents as it may appoint, may enter and take possession of all
the Trust Estate including the Tangible Collateral, without liability for trespass, damages or otherwise, and may
exclude Grantor and its agents and employees wholly therefrom and may have joint access with Grantor to the
books, papers and accounts of Grantor.
3.5.2 If an Event of Default has occurred and is continuing and Grantor shall for any reason fail to surrender
or deliver the Trust Estate, including the Tangible Collateral or any part thereof, after Beneficiary's demand,
Beneficiary may obtain a judgment or decree conferring on Beneficiary or Trustee the right to immediate
possession or requiring Grantor to deliver immediate possession of all or part of such property to Beneficiary or
Trustee and Grantor hereby specifically consents to the entry of such judgment or decree. Grantor shall pay to
Beneficiary or Trustee, upon demand, all reasonable costs and expenses of obtaining such judgment or decree, and
all such costs and expenses shall, until paid, be secured by the lien of this Deed of Trust.
3.5.3 Upon every such entering upon or taking of possession, Beneficiary or Trustee may hold, store, use,
operate, manage and control the Trust Estate and conduct the business thereof, and, from time to time in its sole
and absolute discretion and without being under any duty to so act:
(a) make all necessary and proper maintenance, repairs, renewals and replacements thereto and thereon, and
all necessary additions, betterments and improvements thereto and thereon and purchase or otherwise acquire
fixtures, personalty and other property in connection therewith;
(b) insure or keep the Trust Estate insured;
(c) manage and operate the Trust Estate and exercise all the rights and xxxxxx of Grantor in their name or
otherwise with respect to the same;
(d) enter into agreements with others to exercise the powers herein granted Beneficiary or Trustee, all as
Beneficiary or Trustee from time to time reasonably may determine; and shall apply the monies so received by
Beneficiary or Trustee in such priority as provided by the Note Documents to (i) the payment of interest and
principal due and payable to the Beneficiary, (ii) the deposits for taxes and assessments and insurance premiums
due, (iii) the cost of insurance, taxes, assessments and other proper charges upon the Trust Estate or any part
thereof; (iv) the reasonable expenses and disbursements of the agents, attorneys and other representatives of
Beneficiary or Trustee as allowed under this Deed of Trust; and (v) any other charges or costs required to be
paid by Grantor under the terms of the Note Documents; and
(e) rent or sublet the Trust Estate or any portion thereof for any purpose permitted by this Deed of Trust.
3.5.4 Beneficiary or Trustee shall surrender possession of the Trust Estate, including Tangible Collateral, to
Grantor (a) as may be required by law or court order, or (b) when all amounts under any of the terms of the Note
Documents, including this Deed of Trust, shall have been paid current and all Company Events of Default have been
cured or waived. The same right of taking possession, however, shall exist if any subsequent Event of Default
shall occur and be continuing.
3.6 Separate Sales. Upon the occurrence and continuance of an Event of Default, to the extent permitted by
law or Governmental Rule, the Trust Estate may be sold in one or more parcels and in such manner and order as
Trustee, in its sole discretion, may elect, it being expressly understood and agreed that the right of sale
arising out of any Event of Default shall not be exhausted by any one or more sales.
3.7 Receiver. Upon the occurrence and during the continuation of an Event of Default, Beneficiary, to the
extent permitted by law, and without regard to the value, adequacy or occupancy of the security for the
indebtedness 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 Trust Estate and to collect all earnings,
revenues and receipts and apply the same as the court may direct, and such receiver may be appointed by any court
of competent jurisdiction upon application by Beneficiary. To the extent permitted by law or Governmental Rule,
Beneficiary may have a receiver appointed without notice to Grantor or any third party, and Beneficiary may waive
any requirement that the receiver post a bond. To the extent permitted by law or Governmental Rule, Beneficiary
shall have the power to designate and select the Person who shall serve as the receiver and to negotiate all
terms and conditions under which such receiver shall serve. To the extent permitted by law or Governmental Rule,
any receiver appointed on Beneficiary's behalf may be an Affiliate of Beneficiary. The reasonable expenses,
including receiver's fees, reasonable attorneys' fees and costs, 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
Trust Estate and to collect all earnings, revenues and receipts, whether by a receiver or otherwise, shall be
cumulative to any other right or remedy available to Beneficiary under this Deed of Trust, the other Note
Documents or otherwise available to Beneficiary and may be exercised concurrently therewith or independently
thereof, but such rights shall be exercised in a manner which is otherwise in accordance with and consistent with
the Note Documents. Beneficiary shall be liable to account only for such earnings, revenues and receipts
(including security deposits) actually received by Beneficiary, whether received pursuant to this section or any
other provision hereof. Notwithstanding the appointment of any receiver or other custodian, Beneficiary shall be
entitled as pledgee to the possession and control of any cash, deposits, or instruments at the time held by, or
payable or deliverable under the terms of this Deed of Trust to, Beneficiary.
3.8 Suits to Protect the Trust Estate. Upon the occurrence and continuance of an Event of Default,
Beneficiary shall have the power and authority to institute and maintain any suits and proceedings as
Beneficiary, in its sole and absolute discretion, may deem advisable (acting reasonably) (a) to prevent any
impairment of the Trust Estate by any acts which may be unlawful or in violation of this Deed of Trust, (b) to
preserve or protect its interest in the Trust Estate, or (c) to restrain the enforcement of or compliance with
any legislation or other Legal requirement 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 prejudicial to
Beneficiary's interest.
3.9 Proofs of Claim. In the case of any receivership, insolvency, reorganization, arrangement, adjustment,
composition or other judicial proceedings affecting Grantor, any Affiliate or any guarantor, co-maker or endorser
of any of Grantor'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 it may deem be necessary or advisable in
order to have its claims allowed in such proceedings for the entire amount due and payable by Grantor under the
Note Documents, at the date of the institution of such proceedings, and for any additional amounts which may
become due and payable by Grantor after such date.
3.10 Grantor to Pay Amounts Secured Hereby on Any Default in Payment; Application of Monies by Beneficiary.
(a) In case of a foreclosure sale of all or any part of the Trust Estate and of the application of the
proceeds of sale to the payment of the sums secured hereby, to the extent permitted by law, Beneficiary shall be
entitled to enforce payment from Grantor of any additional amounts then remaining due and unpaid hereunder or
under the Indenture or any other Note Document to which it is a party and to recover judgment against Grantor for
any portion thereof remaining unpaid, with interest at the Default Rate.
(b) Grantor hereby agrees to the extent permitted by law, that no recovery of any such judgment by
Beneficiary or other action by Beneficiary and no attachment or levy of any execution upon any of the Trust
Estate or any other property shall in any way affect the Lien and security interest of this Deed of Trust upon
the Trust Estate or any part thereof or any Lien, rights, powers or remedies of Beneficiary hereunder, but such
Lien, rights, powers and remedies shall continue unimpaired as before.
3.11 Delay or Omission; No Waiver. No delay or omission of Beneficiary or the other Secured Parties to
exercise any right, power or remedy upon any Event of Default shall exhaust or impair any such right, power or
remedy or shall be construed to waive any such Event of Default or to constitute acquiescence therein. Every
right, power and remedy given to Beneficiary whether contained herein or in the other Note Documents or
otherwise available to Beneficiary may be exercised from time to time and as often as may be deemed expedient by
Beneficiary.
3.12 No Waiver of One Default to Affect Another. No waiver of any Event of Default hereunder shall extend to
or affect any subsequent or any other Event of Default then existing, or impair any rights, powers or remedies
consequent thereon. If Beneficiary (a) grants forbearance or an extension of time for the payment of any sums
secured hereby; (b) takes other or additional security for the payment thereof; (c) waives or does not exercise
any right granted in this Deed of Trust or any other Note Document; (d) releases any part of the Trust Estate
from the lien or security interest of this Deed of Trust or any other instrument securing the Secured
Obligations; (e) consents to the filing of any map, plat or replat of the Premises; (f) consents to the granting
of any easement on the Premises; or (g) makes or consents to any agreement changing the terms of this Deed of
Trust or any other Note Document subordinating the lien or any charge hereof, no such act or omission shall
release, discharge, modify, change or affect the liability under this Deed of Trust or any other Note Document or
otherwise of Grantor, or any subsequent purchaser of the Trust Estate or any part thereof or any maker,
co-signer, surety or guarantor with respect to any other matters not addressed by such act or omission. No such
act or omission shall preclude Beneficiary from exercising any right, power or privilege herein granted or
intended to be granted in case of any Event of Default then existing or of any subsequent Company Event of
Default, nor, except as otherwise expressly provided in an instrument or instruments executed by Beneficiary,
shall the lien or security interest of this Deed of Trust be altered thereby, except to the extent expressly
provided in such acts or omissions. In the event of the sale or transfer by operation of law or otherwise of all
or any part of the Trust Estate, Beneficiary, without notice to any person, firm or corporation, is hereby
authorized and empowered to deal with any such vendee or transferee with reference to the Trust Estate or the
indebtedness secured hereby, or with reference to any of the terms or conditions hereof, as fully and to the same
extent as it might deal with the original parties hereto and without in any way releasing or discharging any of
the liabilities or undertakings hereunder, or waiving its right to declare such sale or transfer an Event of
Default as provided herein. Notwithstanding anything to the contrary contained in this Deed of Trust or any
other Note Document, (i) in the case of any non-monetary Event of Default, Beneficiary may continue to accept
payments due hereunder without thereby waiving the existence of such or any other Event of Default and (ii) in
the case of any monetary Event of Default, Beneficiary may accept partial payments of any sums due hereunder
without thereby waiving the existence of such Event of Default if the partial payment is not sufficient to
completely cure such Event of Default. Notwithstanding the foregoing, in the event of a conflict between this
Section 3.12 and the Indenture, the terms of the Indenture shall control.
3.13 Discontinuance of Proceedings; Position of Parties Restored. If Beneficiary shall have proceeded to
enforce any right or remedy under this Deed of Trust by foreclosure, entry of judgment or otherwise and such
proceedings shall have been discontinued or abandoned for any reason, or such proceedings shall have resulted in
a final determination adverse to Beneficiary, then and in every such case Grantor and Beneficiary shall be
restored to their former positions and rights hereunder, and all rights, powers and remedies of Beneficiary shall
continue as if no such proceedings had occurred or had been taken, except in the case of a final, unappealable
judgment from a court of competent jurisdiction that the Secured Obligations and all other obligations of Grantor
under the Note Documents to which it is a party have been paid and discharged in full.
3.14 Remedies Cumulative. No right, power or remedy, including remedies with respect to any security for the
Secured Obligations, conferred upon or reserved to Beneficiary by this Deed of Trust or any other Note Document
is exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or under
any other Note Document, now or hereafter existing at law, in equity or by statute, and Beneficiary shall be
entitled to resort to such rights, powers, remedies or security as Beneficiary shall in its sole and absolute
discretion deem advisable (reasonably exercised).
3.15 Foreclosure; Expenses of Litigation. If Trustee forecloses, reasonable attorneys' fees for services in
the supervision of said foreclosure proceeding shall be allowed to Trustee and Beneficiary as part of the
foreclosure costs. In the event of foreclosure of the lien hereof, there shall be allowed and included as
additional indebtedness all reasonable expenditures and expenses which may be paid or incurred by or on behalf of
Beneficiary for attorneys' fees, appraiser's fees, outlays for documentary and expert evidence, stenographers'
charges, publication costs, and costs (which may be estimated as to items to be expended after foreclosure sale
or entry of the decree) of procuring all such abstracts of title, title searches and examinations, title
insurance policies and Indentures, and similar data and assurances with respect to title as Beneficiary may deem
reasonably necessary either to prosecute such suit or to evidence to a bidder at any sale which may be had
pursuant to such decree the true condition of the title to or the value of the Trust Estate or any portion
thereof. All expenditures and expenses of the nature in this section mentioned, and such expenses and fees as
may be incurred in the protection of the Trust Estate and the maintenance of the lien and security interest of
this Deed of Trust, including the reasonable fees of any attorney employed by Beneficiary in any litigation or
proceeding affecting this Deed of Trust or any other Note Document, the Trust Estate or any portion thereof,
including civil, probate, appellate and bankruptcy proceedings, or in preparation for the commencement or defense
of any proceeding or threatened suit or proceeding, shall be immediately due and payable by Grantor, with
interest thereon at the Default Rate, and shall be secured by this Deed of Trust.
3.16 Deficiency Judgments. Recourse against Grantor, Company and their respective Affiliates, members,
partners, stockholders, officers, directors and employees under this Deed of Trust shall be limited to the extent
provided in the Indenture. Subject to the Indenture, if after foreclosure of this Deed of Trust or Trustee's
sale hereunder, there shall remain any deficiency with respect to any amounts payable under the Note Documents,
including hereunder, or any amounts secured hereby, and Beneficiary shall institute any proceedings to recover
such deficiency or deficiencies, all such amounts shall continue to bear interest at the Default Rate. Subject
to the Indenture, Grantor waives any defense to Beneficiary's recovery against Grantor of any deficiency after
any foreclosure sale of the Trust Estate. Subject to the Indenture, to the extent permitted by law, Grantor
expressly waives any defense or benefits that may be derived from any statute granting Grantor any defense to any
such recovery by Beneficiary. Subject to the Indenture, in addition, Beneficiary and Trustee shall be entitled to
recovery of all of their reasonable costs and expenditures (including any court imposed costs) in connection with
such proceedings, including their reasonable attorneys' fees, appraisal fees and the other costs, fees and
expenditures referred to in Section 3.15 above. This provision shall survive any foreclosure or sale of the
Trust Estate, any portion thereof and/or the extinguishment of the lien hereof.
3.17 Exculpation of Beneficiary. The acceptance by Beneficiary of the assignment contained herein with all
of the rights, powers, privileges and authority created hereby shall not, prior to entry upon and taking
possession of the Trust Estate by Beneficiary, be deemed or construed to make Beneficiary a "mortgagee in
possession"; nor thereafter or at any time or in any event obligate Beneficiary to appear in or defend any action
or proceeding relating to the Trust Estate, nor shall Beneficiary, prior to such entry and taking, be liable in
any way for any injury or damage to person or property sustained by any Person in or about the Trust Estate,
except to the extent caused by the gross negligence or willful misconduct of Beneficiary.
ARTICLE IV.
RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE
Notwithstanding anything to the contrary in this Deed of Trust, Grantor and Beneficiary agree
as follows.
4.1 Exercise of Remedies by Trustee. To the extent that this Deed of Trust or applicable law authorizes or
empowers Beneficiary to exercise any remedies set forth in Article III hereof or otherwise, or perform any acts
in connection therewith, Trustee (but not to the exclusion of Beneficiary unless so required under the law of the
State of Missouri) shall have the power to exercise any or all such remedies, and to perform any acts provided
for in this Deed of Trust in connection therewith, all for the benefit of Beneficiary and on Beneficiary's behalf
in accordance with applicable law of the State of Missouri. In connection therewith, Trustee: (a) shall not
exercise, or waive the exercise of, any of Beneficiary's remedies (other than any rights or Trustee to any
indemnity or reimbursement), except at Beneficiary's request, and (b) shall exercise, or waive the exercise of,
any or all of Beneficiary's remedies at Beneficiary's request, and in accordance with Beneficiary's directions as
to the manner of such exercise or waiver. Trustee may, however, decline to follow Beneficiary's request or
direction if Trustee shall be advised by counsel that the action or proceeding, or manner thereof, so directed
may not lawfully be taken or waived.
4.2 Rights and Privileges of Trustee. To the extent that this Deed of Trust requires Grantor to reimburse
Beneficiary for any expenditures Beneficiary may incur, Trustee shall be entitled to the same rights to
reimbursement of expenses as Beneficiary, subject to such limitations and conditions as would apply in the case
of Beneficiary. To the extent that this Deed of Trust negates or limits Beneficiary's liability as to any
matter, Trustee shall be entitled to the same negation or limitation of liability. To the extent that Grantor,
pursuant to this Deed of Trust, appoints Beneficiary as Grantor's attorney in fact for any purpose, Beneficiary
or (when so instructed by Beneficiary) Trustee shall be entitled to act on Grantor's behalf without joinder or
confirmation by the other.
4.3 Resignation or Replacement of Trustee. Trustee may resign by an instrument in writing addressed to
Beneficiary, and Trustee may be removed at any time with or without cause (i.e., in Beneficiary's sole and
absolute discretion) by an instrument in writing executed by Beneficiary. In case of the death, resignation,
removal or disqualification of Trustee or if for any reason Beneficiary shall deem it desirable to appoint a
substitute, successor or replacement Trustee to act instead of Trustee originally named (or in place of any
substitute, successor or replacement Trustee), then Beneficiary shall have the right and is hereby authorized and
empowered to appoint a successor, substitute or replacement Trustee, and, if preferred, several substitute
trustees in succession, without any formality other than appointment and designation in writing executed by
Beneficiary, which instrument shall be recorded if required by the law of the State of Missouri. The law of the
State of Missouri shall govern the qualifications of any Trustee. The authority conferred upon Trustee by this
Deed of Trust shall automatically extend to any and all other successor, substitute and replacement Trustee(s)
successively until the Secured Obligations have been paid in full or the Trust Estate has been sold hereunder or
released in accordance with the provisions of the Note Documents. Beneficiary's written appointment and
designation of any Trustee shall be full evidence of Beneficiary's right and authority to make the same and of
all facts therein recited. No confirmation, authorization, approval or other action by Grantor shall be required
in connection with any resignation or other replacement of Trustee.
4.4 Authority of Beneficiary. If Beneficiary is a banking corporation, state banking corporation or a
national banking association and the instrument of appointment of any successor or replacement Trustee is
executed on Beneficiary's behalf by an officer of such corporation, state banking corporation or national banking
association, then such appointment may be executed by any authorized officer or agent of Beneficiary and such
appointment shall be conclusively presumed to be executed with authority and shall be valid and sufficient
without proof of any action by the board of directors or any superior officer of Beneficiary.
4.5 Effect of Appointment of Successor Trustee. Upon the appointment and designation of any successor,
substitute or replacement Trustee, Trustee's entire estate and title in the Trust Estate shall vest in the
designated successor, substitute or replacement Trustee. Such successor, substitute or replacement Trustee shall
thereupon succeed to and shall hold, possess and execute all the rights, powers, privileges, immunities and
duties herein conferred upon Trustee. All references herein to Trustee shall be deemed to refer to Trustee
(including any successor or substitute appointed and designated as herein provided) from time to time acting
hereunder.
4.6 Confirmation of Transfer and Succession. Any new Trustee appointed pursuant to any of the provisions
hereof shall, without any further act, deed or conveyance, become vested with all the estates, properties,
rights, powers and trusts of his predecessor in the rights hereunder with like effect as if originally named as
Trustee herein; but nevertheless, upon the written request of Beneficiary or of any successor, substitute or
replacement Trustee, any former Trustee ceasing to act shall execute and deliver an instrument transferring to
such successor, substitute or replacement Trustee all of the right, title, estate and interest in the Trust
Estate of Trustee so ceasing to act, together with all the rights, powers, privileges, immunities and duties
herein conferred upon Trustee, and shall duly assign, transfer and deliver all properties and moneys held by said
Trustee hereunder to said successor, substitute or replacement Trustee.
4.7 Exculpation. Trustee shall not be liable for any error of judgment or act done by Trustee in good
faith, or otherwise be responsible or accountable under any circumstances whatsoever, except for Trustee's gross
negligence, willful misconduct or knowing violation of law. Trustee shall not be personally liable in case of
entry by him, or anyone entering by virtue of the powers herein granted him, upon the Trust Estate for debts
contracted or liability or damages incurred in the management or operation of the Trust Estate. Trustee shall
have the right to rely on any instrument, document or signature authorizing or supporting any action taken or
proposed to be taken by it hereunder, believed by it in good faith to be genuine. All moneys received by Trustee
shall, until used or applied as herein provided, be held in trust for the purposes for which they were received,
but need not be segregated in any manner from any other moneys (except to the extent required by law). Trustee
shall be under no liability for interest on any moneys received by it hereunder.
4.8 Endorsement and Execution of Documents. Upon Beneficiary's written request, Trustee shall, without
liability or notice to Grantor, execute, consent to, or join in any instrument or agreement in connection with or
necessary to effectuate the purposes of the Note Documents. Grantor hereby irrevocably designates Trustee as its
attorney in fact to execute, acknowledge and deliver, on Grantor's behalf and in Grantor's name, all instruments
or agreements reasonably necessary to implement any provision(s) of this Deed of Trust or to further perfect the
lien created by this Deed of Trust on the Trust Estate. This power of attorney shall be deemed to be coupled
with an interest and shall survive any disability of Grantor.
4.9 Multiple Trustees. If Beneficiary appoints multiple trustees, then any Trustee, individually, may
exercise all powers granted to Trustee under this instrument, without the need for action by any other Trustee(s).
4.10 No Required Action. Trustee shall not be required to take any action under this Deed of Trust or to
institute, appear in or defend any action, suit or other proceeding in connection therewith where in his opinion
such action will be likely to involve him in expense or liability, unless requested so to do by a written
instrument signed by Beneficiary and, if Trustee so requests, unless Trustee is tendered security and indemnity
satisfactory to him against any and all costs, expense and liabilities arising therefrom. Trustee shall not be
responsible for the execution, acknowledgment or validity of the Note Documents, or for the proper authorization
thereof, or for the sufficiency of the lien and security interest purported to be created hereby, and makes no
representation in respect thereof or in respect of the rights, remedies and recourses of Beneficiary.
4.11 Terms of Trustee's Acceptance. Trustee accepts the trust created by this Deed of Trust upon the
following terms and conditions:
(a) Trustee may exercise any of its powers through appointment of attorney(s) in fact or agents;
(b) Trustee shall be under no obligation to take any action upon any Event of Default unless furnished
security or indemnity, in form satisfactory to Trustee, against costs, expenses, and liabilities that Trustee may
incur;
(c) Grantor shall reimburse Trustee, as part of the Secured Obligations secured hereunder, for all
reasonable disbursements and expenses (including reasonable legal fees and expenses) incurred by reason of or
arising from an Event of Default and as provided for in this Deed of Trust; and
(d)......upon the indefeasible payment in full in cash of the Secured Obligations, this Deed of
Trust shall cease, terminate and thereafter be of no further force or effect and Trustee shall release this
Deed of Trust without charge to Grantor. Grantor shall pay all costs of recordation, if any.
4.12 Intercreditor Agreement. Reference is made to that certain Intercreditor Agreement, dated as of
September 29, 2003, by and among General Electric Capital Corporation, The Bank of New York, X'Xxxxxxxx
Industries, Inc., X'Xxxxxxxx Furniture Factory Outlet, Inc. and X'Xxxxxxxx Industries, Virginia, in their various
respective capacities as set forth therein (the "Intercreditor Agreement"), the rights, benefits and priorities
afforded under this Deed of Trust shall be governed and controlled by the provisions of the Intercreditor
Agreement, as the same may be amended, restated, supplemented or otherwise modified, renewed or replaced from
time to time.
ARTICLE V.
GENERAL
5.1 Discharge. Upon the indefeasible payment in full in cash of the Secured Obligations, (a) this Deed of
Trust shall cease and terminate and this Deed of Trust and the lien and security interest created hereby shall be
of no further force and effect, (b) Grantor shall be released from the covenants, agreements and obligations of
Grantor contained in this Deed of Trust and all right, title and interest in and to the Trust Estate shall revert
to Grantor and (c) Beneficiary and Trustee, at the request and the expense of Grantor, shall promptly execute a
deed of reconveyance and such other documents as may be reasonably necessary to evidence the discharge and
satisfaction of this Deed of Trust and the release of Grantor from its obligations hereunder.
5.2 Application of Proceeds. Upon the occurrence and during the continuation of an Event of Default, the
proceeds of any sale of, or other realization upon, all or any part of the Trust Estate shall be applied in
accordance with the applicable provisions of the Indenture. Company shall remain liable for any deficiency.
5.3 Extension, Rearrangement or Renewal of Secured Obligations. It is expressly agreed that any of the
Secured Obligations at any time secured hereby may be from time to time extended for any period, or with the
consent of Grantor rearranged or renewed, and that any part of the security herein described, or any other
security for the Secured Obligations, may be waived or released, without altering, varying or diminishing the
force, effect or lien or security interest of this Deed of Trust; and the lien and security interest granted by
this Deed of Trust shall continue as a prior lien and security interest on all of the Trust Estate not expressly
so released, until the Secured Obligations are fully paid and this Deed of Trust is terminated in accordance with
the provisions hereof; and no other security now existing or hereafter taken to secure the payment of the Secured
Obligations or any part thereof or the performance of any obligation or liability of Grantor whatever shall in
any manner impair or affect the security given by this Deed of Trust; and all security for the payment of the
Secured Obligations or any part thereof and the performance of any obligation or liability shall be taken,
considered and held as cumulative.
5.4 Forcible Detainer. Grantor agrees for itself and all Persons claiming by, through or under it, that
subsequent to foreclosure hereunder in accordance with this Deed of Trust and applicable law if Grantor shall
hold possession of the Trust Estate or any part thereof, Grantor or the Persons so holding possession shall be
guilty of trespass; and any such tenant failing or refusing to surrender possession upon demand shall be guilty
of forcible detainer and shall be liable to such purchasers for reasonable rental on said premises, and shall be
subject to eviction and removal in accordance with law.
5.5 Waiver of Stay or Extension. To the extent permitted to be waived by law, Grantor shall not at any time
insist upon or plead or in any manner whatever claim the benefit or advantage of any stay, extension or
moratorium law now or at any time hereafter in force in any locality where the Trust Estate or any part thereof
may or shall be situated, nor shall Grantor claim any benefit or advantage from any law now or hereafter in force
providing for the valuation or appraisement of the Trust Estate or any part thereof prior to any sale thereof to
be made pursuant to any provision of this Deed of Trust or to a decree of any court of competent jurisdiction,
nor after any such sale shall Grantor claim or exercise any right conferred by any law now or at any time
hereafter in force to redeem the Trust Estate so sold or any part thereof; and Grantor hereby expressly waives
all benefit or advantage of any such law or laws and the appraisement of the Trust Estate or any part thereof,
and covenants that Grantor shall not hinder or delay the execution of any power herein granted and delegated to
Beneficiary but that Grantor shall permit the execution of every such power as though no such law had been made.
5.6 Application of Payments. In the event that any part of the Secured Obligations cannot lawfully be
secured hereby, or in the event that the lien and security interest hereof cannot be lawfully enforced to pay any
part of the Secured Obligations, or in the event that the lien or security interest created by this Deed of Trust
shall be invalid or unenforceable as to any part of the Secured Obligations, then all payments on the Secured
Obligations shall be deemed to have been first applied to the complete payment and liquidation of that part of
the Secured Obligations which is not secured by this Deed of Trust and the unsecured portion of the Secured
Obligations shall be completely paid and liquidated prior to the payment and liquidation of the remaining secured
portion of the Secured Obligations.
5.7 Amendments; Etc. This Deed of Trust may not be amended, modified or supplemented, except in a writing
signed by each of the parties hereto and otherwise in accordance with the provisions of Article 9 of the
Indenture.
5.8 Renewal; Etc. Beneficiary may at any time and from time to time renew or extend this Deed of Trust, or
alter or modify the same in any way, or waive any of the terms, covenants or conditions hereof in whole or in
part and may release any portion of the Trust Estate or any other security, and grant such extensions and
indulgences in relation to the Secured Obligations as Beneficiary may determine, without the consent of any
junior lienor or encumbrancer and without any obligation to give notice of any kind thereto and without in any
manner affecting the priority of the lien and security interest hereof on any part of the Trust Estate; provided
that nothing in this Section 5.8 shall grant Beneficiary the right to alter or modify the Deed of Trust without
the consent of the Grantor unless otherwise specifically permitted in this Deed of Trust.
5.9 Future Advances. This Deed of Trust secures future advances and also secures all other future
obligations of Grantor to Beneficiary which are contractual in nature. It is understood and agreed that this
Deed of Trust secures Grantor's Indenture of present and future advances made pursuant to the Indenture and that
the lien of Grantor's Indenture of such future advances shall relate to the date of this Deed of Trust. The total
principal amount of the obligations which may be secured hereby is $150,000,000. This Deed of Trust is governed
by section 443.055 X.X.Xx.
5.10 Compliance With Usury Law. The Note Documents are intended to be performed in accordance with, and only
to the extent permitted by, all applicable Governmental Rules. It is expressly stipulated and agreed to be the
intent of Grantor and Beneficiary at all times to comply with the applicable Missouri law governing the maximum
rate or amount of interest payable on or in connection with the Secured Obligations (or applicable United States
federal law to the extent that it permits Beneficiary to contract for, charge, take, reserve or receive a greater
amount of interest than under Missouri law). If the applicable law is ever judicially interpreted so as to
render usurious any amount called for under the Note Documents, or contracted for, charged, taken, reserved or
received with respect to the financial accommodations evidenced by the Note Documents or if acceleration of the
maturity of the Secured Obligations or if any prepayment by Grantor results in Grantor having paid any interest
in excess of that permitted by law, then it is Grantor's and Beneficiary's express intent that all excess amounts
theretofore collected by Beneficiary be credited on the principal balance due under the Note Documents (or, if
the Note Documents have been or would thereby be paid in full, refunded to Grantor), and the provisions of the
Note Documents immediately be deemed reformed and the amounts thereafter collectible thereunder reduced, without
the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit
the recovery of the fullest amount otherwise called for hereunder and thereunder. The right to accelerate
maturity of Secured Obligations does not include the right to accelerate any interest which has not otherwise
accrued on the date of such acceleration, and Beneficiary does not intend to collect any unearned interest in the
event of acceleration. All sums paid or agreed to be paid to Beneficiary for the use, forbearance or retention
of the Secured Obligations shall, to the extent permitted by applicable law, be amortized, prorated, allocated
and spread throughout the full term of the Secured Obligations until payment in full so that the rate or amount
of interest on account of the Secured Obligations does not exceed the applicable usury ceiling.
5.11 Notices. All notices required or permitted under the terms and provisions hereof shall be in writing
and any such notice shall be effective if given in accordance with the provisions of Section 14.02 of the
Indenture and, if to Grantor, shall be given at the following address:
X'Xxxxxxxx Industries, Inc.
0000 Xxxx Xxxxxx
Xxxxx, XX 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
All notices to Trustee required or permitted hereunder shall be deemed given when given in the
manner prescribed in Section 14.02 of the Indenture to the following address:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxx
Xxx Xxxx, XX 00000
Attn: Corporate Trust Administration
Facsimile No.: (000) 000-0000/5707
5.12 Severability. The provisions of this Deed of Trust are severable, and if any clause or provision shall
be held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in such jurisdiction and shall not
in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision of this
Agreement in any jurisdiction.
5.13 Survival of Provisions. All agreements, representations and warranties made herein shall survive the
execution and delivery of this Deed of Trust and the Indenture and the making of the Loans and extensions of
credit thereunder. Notwithstanding anything in this Deed of Trust or implied by law to the contrary, the
agreements, representations and warranties of Grantor set forth herein shall terminate only upon the indefeasible
payment in full in cash of the Secured Obligations.
5.14 Successions or Assignments.
5.14.1 This Deed of Trust shall inure to the benefit of the successors or assigns of the Secured Parties who
shall have, to the extent of their interest, the rights of the Secured Parties hereunder; provided, however, that
the rights of the Secured Parties hereunder, if any be retained by them, shall have priority over and be senior
to the rights of its successors or assigns unless Beneficiary shall otherwise elect.
5.14.2 This Deed of Trust is binding upon Grantor and its successors and assigns. Grantor is not entitled to
assign its obligations hereunder to any other person without the written consent of Beneficiary, and any
purported assignment in violation of this provision shall be void.
5.15 Headings Descriptive. Article and Section headings have been inserted in this Deed of Trust as a matter
of convenience for reference only and it is agreed that such article and section headings are not a part of this
Deed of Trust and shall not be used in the interpretation of any provision of this Deed of Trust.
5.16 Entire Agreement. This Deed of Trust, together with any other agreement executed in connection
herewith, is intended by the parties as a final expression of their agreement and is intended as a complete and
exclusive statement of the terms and conditions thereof.
5.17 Counterparts. This Deed of Trust and any amendments, waivers, consents or supplements hereto or in
connection herewith may be executed in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages are physically attached to the same
document.
5.18 Governing Law. This Deed of Trust, including all matters of construction, validity, performance and the
creation, validity, enforcement or priority of the lien of, and security interests created by, this Deed of Trust
in or upon the Trust Estate shall be governed by the laws of the State of Missouri, without reference to
conflicts of law, except as required by mandatory provisions of law and except to the extent that the validity or
perfection of the lien and security interest hereunder, or remedies hereunder, in respect of any portion of the
Trust Estate are governed by the laws of a jurisdiction other than the State of Missouri.
5.19 Waiver of Jury Trial. GRANTOR, TRUSTEE AND BENEFICIARY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS DEED OF TRUST OR ANY OTHER NOTE DOCUMENT, OR ANY COURSE OR CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF GRANTOR, TRUSTEE, OR BENEFICIARY. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS DEED OF TRUST.
5.20 Third Party Rights. Nothing in this Deed of Trust, expressed or implied, is intended or shall be
construed to confer upon, or give to any Person, other than Grantor, Trustee, Beneficiary and the Secured
Parties, any security, rights, remedies or claims, legal or equitable, under or by reason hereof, or any covenant
or condition hereof; and this Deed of Trust and the covenants and agreements herein contained are and shall be
held to be for the sole and exclusive benefit of Grantor, Trustee, Beneficiary and the Secured Parties.
5.21 Certain Definitions. The words "include," "including" and words of similar import shall be interpreted
as if followed by the words "without limitation" except where the context otherwise indicates.
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S-1
(Harquahala Deed of Trust)
IN WITNESS WHEREOF, Grantor, by its officers duly authorized, intending to be legally bound,
has caused this Deed of Trust to be duly executed and delivered as of the date first above written.
X'XXXXXXXX INDUSTRIES INC.
a Delaware corporation
By: /S/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
STATE OF MISSOURI )
: ss.:
COUNTY OF XXXXXX )
On this 12th day of November, 2003 before me appeared Xxxxxxx X. Xxxxx, to me personally known,
who, being by me duly sworn did say that he is the Senior Vice President and Chief Financial Officer of
X'Xxxxxxxx Industries, Inc., and that the seal affixed to foregoing instrument is the corporate seal of
said corporation and that said instrument was signed and sealed in behalf of said corporation by
authority of its board of directors and said Xxxxxxx X. Xxxxx acknowledged said instrument to be the
free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal at my office in
Xxxxxx County, Missouri, the day and year last written above.
/S/ Xxxxx X. Xxxx
Notary Public
My commission expires: 4/26/05
[NOTARY SEAL]
