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Exhibit 10(m)
[California]
Recording requested by, and when recorded, please return to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
a partnership which includes
professional corporations
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxx X. Xxxxxxxx, Esq.
THIS INSTRUMENT IS TO BE INDEXED IN THE OFFICE OF THE LOS ANGELES COUNTY RECORDS
AS BOTH A DEED OF TRUST AND A FIXTURE FILING
DEED OF TRUST, ASSIGNMENT OF
RENTS AND LEASES, SECURITY
AGREEMENT AND FIXTURE FILING
from
EV INTERNATIONAL, INC., Grantor
to
CHICAGO TITLE INSURANCE COMPANY, Trustee
for the use and
benefit of
THE CHASE MANHATTAN BANK, as Administrative Agent, Beneficiary
DATED AS OF FEBRUARY 10, 1997
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[California]
DEED OF TRUST, ASSIGNMENT OF RENTS
AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT AND FIXTURE FILING, dated as of February 10, 1997 is made by EV
INTERNATIONAL, INC., a Delaware corporation, as successor by merger and name
change to LFE Corporation ("GRANTOR"), whose address is 000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000, to CHICAGO TITLE INSURANCE COMPANY, a California
corporation, ("TRUSTEE") whose address is 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxx, XX 00000 for the use and benefit of THE CHASE MANHATTAN BANK, a New
York banking corporation whose address is 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as Administrative Agent (in such capacity, "BENEFICIARY") for the several
banks and other financial institutions (the "LENDERS") from time to time parties
to the Credit Agreement dated as of February 10, 1997, (as the same may be
amended, supplemented, waived or otherwise modified from time to time the
"SENIOR SECURED CREDIT AGREEMENT") among Gulton Acquisition Corp., a Delaware
corporation ("BORROWER"), the Lenders and Beneficiary. References to this "Deed
of Trust" shall mean this instrument and any and all renewals, modifications,
amendments, supplements, extensions, consolidations, substitutions, spreaders
and replacements of this instrument. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned thereto in the Senior Secured
Credit Agreement.
Background
A. Gulton Holdings Corp., a Delaware corporation which, on or
after the Effective Date, will be renamed EVI Audio Holding, Inc. ("HOLDINGS")
and Borrower, its direct Wholly Owned Subsidiary, are newly formed companies
organized by an investor group led by Greenwich Street Capital Partners, Inc., a
Delaware corporation ("GSCP").
B. Borrower acquired Gulton Industries Inc., a Delaware
corporation ("GII") which was a subsidiary of Xxxx XX Industries, Inc. ("XXXX
XX") through the purchase from Xxxx XX and Xxxx XX PLC of the capital stock of
GII (the
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"ACQUISITION") pursuant to the Stock Purchase Agreement, dated as of December
12, 1996, by and among Xxxx XX, Xxxx XX PLC and Borrower (as amended,
supplemented, waived or otherwise modified from time to time in accordance with
the Senior Secured Credit Agreement, the "STOCK PURCHASE AGREEMENT").
C. Borrower merged with and into GII (the "FIRST MERGER"), and
GII as surviving corporation of the First Merger merged (the "SECOND MERGER";
the First Merger together with the Second Merger, the "MERGERS") with and into
Electro- Voice, Incorporated, a Delaware corporation and a Wholly Owned
Subsidiary of GII, which was thereupon renamed EV International, Inc.
D. In order to (i) finance a portion of the Acquisition
Consideration, (ii) refinance a portion of the existing indebtedness of GII and
its subsidiaries, (iii) pay certain fees, taxes and expenses related to (x) the
Acquisition and the financing thereof and (y) the refinancing of such existing
indebtedness of GII and its subsidiaries and (iv) finance the working capital
and other business requirements of Grantor and its subsidiaries following the
consummation of the Acquisition and the Merger, Acquisition Co. has requested
that the Lenders make the Loans and issue and participate in the Letters of
Credit in accordance with the terms of the Senior Secured Credit Agreement.
E. Grantor is the owner of the parcel(s) of real property
described on Schedule A attached hereto (such real property, together with all
of the buildings, improvements, structures and fixtures now or subsequently
located thereon (the "IMPROVEMENTS"), being collectively referred to as the
"REAL ESTATE").
F. Pursuant to the terms of the Senior Secured Credit
Agreement, the Lenders have agreed, among other things, to make the Loans and
the Issuing Lender has agreed to issue, and the L/C Participants have agreed to
acquire undivided participating interests in, the Letter(s) of Credit for the
account of the Borrower upon the terms and subject to the conditions set forth
in the Senior Secured Credit Agreement which conditions include the grant by
Grantor to Beneficiary of a first lien upon and perfected security interest in,
among other things, all estate, right, title and interest of Grantor in and to
the Real Estate pursuant to the terms hereof.
G. Grantor is the successor by merger to Borrower, and it is
to the advantage and benefit of Grantor that the Lenders make the Loans to
Borrower.
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Granting Clauses
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees that to secure:
(a) the repayment of principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans
and Reimbursement Obligations and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether
or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans (as they may be evidenced by the Notes from
time to time) and all other obligations (including the Reimbursement
Obligations) and liabilities of Grantor to Beneficiary, the Issuing
Lender and the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Senior
Secured Credit Agreement, the Loans, the Letters of Credit, the
Security Documents, any Guarantee Obligation of Grantor as to which any
Lender is a beneficiary, any Permitted Hedging Arrangement with any
Lender or any banking affiliate of any Lender (whether entered into
directly, or guaranteed, by Grantor), the Guarantee and Collateral
Agreement dated as of February 10, 1997 between Grantor, Holdings and
Beneficiary (the "GUARANTEE") or any other document made, delivered or
given in connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees,
charges and disbursements of counsel to the Administrative Agent, the
Issuing Lender or any Lender that are required to be paid by any Loan
Party pursuant to the Senior Secured Credit Agreement) (the items set
forth above being referred to collectively as the "INDEBTEDNESS"); and
(b) the performance of all covenants, agreements, obligations
and liabilities of Grantor (the "OBLIGATIONS") under or pursuant to the
provisions of the Senior Secured Credit Agreement, the Loans, this Deed
of Trust, the Guarantee, any other document securing payment of the
Indebtedness (the "SECURITY DOCUMENTS") and any amendments,
supplements, extensions, renewals, restatements, replacements or
modifications of any of the foregoing (the Senior Secured Credit
Agreement, the Loans, the Letters of Credit, this Deed of Trust, the
Guarantee and all other documents and instruments from time to time
evidencing, securing or guaranteeing the payment of the Indebtedness or
the performance of the Obligations, as any of the same may be
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amended, supplemented, extended, renewed, restated, replaced or
modified from time to time, are collectively referred to as the "LOAN
DOCUMENTS");
GRANTOR HEREBY IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO TRUSTEE, IN TRUST,
WITH POWER OF SALE, THE FOLLOWING:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever
of Grantor, in possession or expectancy, in and to the Real Estate or
any part thereof;
(C) all right, title and interest of Grantor in, to and under
all easements, rights of way, gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water and riparian
rights, development rights, air rights, mineral rights and all estates,
rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to
the Real Estate, and any reversions, remainders, rents, issues, profits
and revenue thereof and all land lying in the bed of any street, road
or avenue, in front of or adjoining the Real Estate to the center line
thereof;
(D) all right, title and interest of Grantor in and to all of
the fixtures, chattels, business machines, machinery, apparatus,
equipment, furnishings, fittings and articles of personal property of
every kind and nature whatsoever, and all appurtenances and additions
thereto and substitutions or replacements thereof (together with, in
each case, attachments, components, parts and accessories) currently
owned or subsequently acquired by Grantor and now or subsequently
attached to, or contained in or used or usable in any way in connection
with any operation or letting of the Real Estate, including but without
limiting the generality of the foregoing, all screens, awnings, shades,
blinds, curtains, draperies, artwork, carpets, rugs, storm doors and
windows, furniture and furnishings, heating, electrical, and mechanical
equipment, lighting, switchboards, plumbing, ventilating, air
conditioning and air-cooling apparatus, refrigerating, and incinerating
equipment, escalators, elevators, loading and unloading equipment and
systems, stoves, ranges, laundry equipment, cleaning systems (including
window cleaning apparatus), telephones, communication systems
(including satellite dishes and antennae), televisions, computers,
sprinkler systems and other fire prevention and extinguishing apparatus
and materials, security systems, motors, engines, machinery, pipes,
pumps, tanks, conduits, appliances, fittings and fixtures of
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every kind and description (all of the foregoing in this paragraph (D)
being referred to as the "EQUIPMENT");
(E) all right, title and interest of Grantor in and to all
substitutes and replacements of, and all additions and improvements to,
the Real Estate and the Equipment, subsequently acquired by or released
to Grantor or constructed, assembled or placed by Grantor on the Real
Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials to be used by Grantor whether stored at the Real
Estate or offsite, and, in each such case, without any further
mortgage, conveyance, assignment or other act by Grantor;
(F) all right, title and interest of Grantor in, to and under
all leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or
occupancy of the Real Estate or the Equipment or any part thereof, now
existing or subsequently entered into by Grantor and whether written or
oral and all guarantees of any of the foregoing (collectively, as any
of the foregoing may be amended, restated, extended, renewed or
modified from time to time, the "LEASES"), and all rights of Grantor in
respect of cash and securities deposited thereunder and the right to
receive and collect the revenues, income, rents, issues and profits
thereof, together with all other rents, royalties, issues, profits,
revenue, income and other benefits arising from the use and enjoyment
of the Trust Property (as defined below) (collectively, the "RENTS");
(G) all books and records relating to or used in connection
with the operation of the Real Estate or the Equipment or any part
thereof;
(H) all right, title and interest of Grantor, to the extent
assignable, in and to (i) all unearned premiums under insurance
policies now or subsequently obtained by Grantor relating to the Real
Estate or Equipment, (ii) any such insurance policies, (iii) all
proceeds of any such insurance policies (including title insurance
policies) including the right to collect and receive such proceeds,
subject to the provisions relating to insurance generally set forth
below, and (iv) all awards and other compensation, including the
interest payable thereon and the right to collect and receive the same,
made to the present or any subsequent owner of the Real Estate or
Equipment for the taking by eminent domain, condemnation or otherwise,
of all or any part of the Real Estate or any easement or other right
therein, subject to the provisions relating to condemnation awards
generally set forth below;
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(I) all right, title and interest of Grantor, to the extent
assignable, in and to (i) all contracts from time to time executed by
Grantor or any manager or agent on its behalf relating to the
ownership, construction, maintenance, repair, operation, occupancy,
sale or financing of the Real Estate or Equipment or any part thereof
and all agreements relating to the purchase or lease of any portion of
the Real Estate or any property which is adjacent or peripheral to the
Real Estate, together with the right to exercise such options
(collectively, the "CONTRACTS"), (ii) all consents, licenses, building
permits, certificates of occupancy and other governmental approvals
relating to construction, completion, occupancy, use or operation of
the Real Estate or any part thereof (collectively, the "PERMITS") and
(iii) all drawings, plans, specifications and similar or related items
relating to the Real Estate (collectively, the "PLANS");
(J) any and all monies now or subsequently on deposit for the
payment of real estate taxes or special assessments against the Real
Estate or for the payment of premiums on insurance policies covering
the foregoing property or otherwise on deposit with or held by
Beneficiary as provided in this Deed of Trust;
(K) all accounts and revenues arising from the operation of
the Improvements; and
(L) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now
owned or held or subsequently acquired by Grantor and described in the foregoing
clauses (A) through (E) are collectively referred to as the "PREMISES", and
those described in the foregoing clauses (A) through (L) are collectively
referred to as the "TRUST PROPERTY").
TO HAVE AND TO HOLD the Trust Property and the rights and
privileges hereby granted unto Trustee, its successors and assigns for the uses
and purposes set forth, until the Indebtedness is fully paid and the Obligations
fully performed or as otherwise expressly provided in the Section of this Deed
of Trust entitled "Release of Deed of Trust".
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Terms and Conditions
Grantor further represents, warrants, covenants and agrees
with Trustee and Beneficiary as follows:
1. Warranty of Title. Grantor warrants that Grantor has good
title to the Real Estate in fee simple and good title to the rest of the Trust
Property, subject only to the matters that are set forth in Schedule B of the
title insurance policy or policies being issued to Beneficiary to insure the
lien of this Deed of Trust and Liens expressly permitted under the Senior
Secured Credit Agreement (collectively, the "PERMITTED EXCEPTIONS") and Grantor
shall warrant, defend and preserve such title and the rights granted by this
Deed of Trust with respect thereto against all claims of all persons and
entities. Grantor further warrants that it has the right to grant this Deed of
Trust.
2. Payment of Indebtedness. Grantor shall pay the Indebtedness
at the times and places and in the manner specified in the Senior Secured Credit
Agreement and shall perform all the Obligations.
3. Requirements. (a) Grantor shall promptly comply with, or
cause to be complied with, and conform to all present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements, and irrespective of the nature of the work to be done, of each of
the United States of America, any State and any municipality, local government
or other political subdivision thereof and any agency, department, bureau,
board, commission or other instrumentality of any of them, now existing or
subsequently created (collectively, "GOVERNMENTAL AUTHORITY") which has
jurisdiction over the Trust Property and all covenants, restrictions and
conditions now or later of record which may be applicable to any of the Trust
Property, or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration, repair or reconstruction of any of the Trust Property,
except to the extent that failure to comply therewith, in the aggregate, would
not reasonably be expected to have a Material Adverse Effect. All present and
future laws, statutes, codes, ordinances, orders, judgments, decrees, rules,
regulations and requirements of every Governmental Authority applicable to
Grantor or to any of the Trust Property and all covenants, restrictions, and
conditions which now or later may be applicable to any of the Trust Property are
collectively referred to as the "LEGAL REQUIREMENTS".
(b) From and after the date of this Deed of Trust, except as
expressly permitted under the Senior Secured Credit Agreement or herein, Grantor
shall not by
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act or omission permit, other than Permitted Exceptions, any building or other
improvement on any premises not subject to this Deed of Trust to rely on the
Premises or any part thereof or any interest therein to fulfill any Legal
Requirement, and Grantor hereby assigns to Beneficiary any and all rights to
give consent for all or any portion of the Premises or any interest therein to
be so used. Grantor shall not by act or omission impair the integrity of any of
the Real Estate as a single zoning lot separate and apart from all other
premises. Grantor represents that each parcel of the Real Estate constitutes a
legally subdivided lot, in compliance with all subdivision laws and similar
Legal Requirements, except to the extent that failure to comply therewith, in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect. Any act or omission by Grantor which would result in a violation of any
of the provisions of this subsection shall be void.
4. Payment of Taxes and Other Impositions. (a) Except as
expressly permitted under the Senior Secured Credit Agreement, Grantor, prior to
delinquency, shall pay and discharge all taxes of every kind and nature
(including, without limitation, all real and personal property, income,
franchise, withholding, transfer, gains, profits and gross receipts taxes), all
charges for any easement or agreement maintained for the benefit of any of the
Trust Property, all general and special assessments, levies, permits, inspection
and license fees, all water and sewer rents and charges and all other public
charges even if unforeseen or extraordinary, imposed upon or assessed against or
which may become a lien on any of the Trust Property, or arising in respect of
the occupancy, use or possession thereof, together with any penalties or
interest on any of the foregoing (all of the foregoing are collectively referred
to as the "IMPOSITIONS"). Grantor shall within 30 days after the request of
Beneficiary deliver to Beneficiary (i) original or copies of receipted bills and
cancelled checks or other evidence of payment of such Imposition if it is a real
estate tax or other public charge and (ii) evidence acceptable to Beneficiary in
its reasonable discretion showing the payment of any other such Imposition. If
by law any Imposition, at Grantor's option, may be paid in installments (whether
or not interest shall accrue on the unpaid balance of such Imposition), Grantor
may elect to pay such Imposition in such installments and shall be responsible
for the payment of such installments with interest, if any.
(b) Nothing herein shall affect any right or remedy of Trustee
or Beneficiary under this Deed of Trust or otherwise, without notice or demand
to Grantor, to pay any Imposition after the date such Imposition shall have
become delinquent, and to add to the Indebtedness the amount so paid, together
with interest from the time of payment at the rate of interest described in
paragraph 4.1(c) of the Senior Secured Credit Agreement (the "DEFAULT RATE").
Any sums paid by Trustee or Beneficiary in discharge of any Impositions shall be
(i) a charge on the Premises
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secured hereby prior to any right or title to, interest in, or claim upon the
Premises subordinate to the lien of this Deed of Trust, and (ii) payable on
demand by Grantor to Trustee or Beneficiary, as the case may be, together with
interest at the Default Rate as set forth above.
(c) Grantor shall not claim, demand or be entitled to receive
any credit or credits toward the satisfaction of this Deed of Trust or on any
interest payable thereon for any taxes assessed against the Trust Property or
any part thereof, and shall not claim any deduction from the taxable value of
the Trust Property by reason of this Deed of Trust.
(d) Grantor shall have the right pursuant to subsection 7.3 of
the Senior Secured Credit Agreement to contest in good faith to the amount or
validity of any Imposition by appropriate proceedings diligently conducted with
reserves in conformity with GAAP, provided that Grantor shall demonstrate to
Beneficiary's reasonable satisfaction that such proceedings shall operate
conclusively to prevent the sale of the Trust Property, or any part thereof, to
satisfy such Imposition prior to final determination of such proceedings.
(e) Upon written notice to Grantor, Beneficiary during the
continuance of an Event of Default (as defined below) shall be entitled to
require Grantor to pay monthly in advance to Beneficiary the equivalent of
1/12th of the estimated annual Impositions. Beneficiary may commingle such funds
with its own funds but Grantor shall be entitled to interest thereon at a rate
mutually agreed upon by Grantor and Beneficiary.
5. Insurance. (a) Grantor shall maintain or cause to be
maintained on all of the Premises:
(i) property insurance against loss or damage by fire,
lightning, windstorm, tornado, water damage, flood, earthquake and by
such other further risks and hazards as now are or subsequently may be
covered by an "all risk" policy or a fire policy covering "special"
causes of loss (provided, however, that the maintenance of insurance
against earthquake, windstorm, flood and freeze risks shall be subject
to availability of such insurance coverage on commercially reasonable
terms). The policy shall include building ordinance law endorsements
and the policy limits shall be automatically reinstated after each loss
(other than with respect to flood and earthquake coverage which shall
be reinstated on a commercially reasonable basis);
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(ii) commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), covering all claims
for personal injury, bodily injury or death, or property damage,
subject to standard policy terms, conditions and exclusions, occurring
on, in or about the Premises in an amount not less than $10,000,000
combined single limit with respect to personal injury, bodily injury or
death, or property damage, relating to any one occurrence plus such
excess limits as Beneficiary shall reasonably request from time to
time;
(iii) when and to the extent reasonably required by
Beneficiary, insurance against loss or damage by any other risk
commonly insured against by persons occupying or using like properties
in the locality or localities in which the Real Estate is situated;
(iv) during the course of any construction or repair of
Improvements, commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), (including coverage
for elevators and escalators, if any). The policy shall include
coverage for independent contractors and completed operations. The
completed operations coverage shall stay in effect for two years after
construction of any Improvements has been completed. The policy shall
provide coverage on an occurrence basis against claims for personal
injury, including, without limitation, bodily injury and death, and
property damage resulting from Grantor's negligence or other behavior
for which Grantor may be adjudged tortiously liable, subject to
standard policy terms, conditions and exclusions, occurring on, in or
about the Premises and the adjoining streets, sidewalks and
passageways, such insurance to afford immediate minimum protection to a
limit of not less than that reasonably required by Beneficiary with
respect to personal injury, bodily injury or death to any one or more
persons or damage to property;
(v) during the course of any construction or repair of the
Improvements, workers' compensation insurance (including employer's
liability insurance) for all employees of Grantor engaged on or with
respect to the Premises in such amounts no less than the limits
established by law or in the case of employer's liability insurance, no
less than $500,000, provided that Grantor may self-insure any or all
workers' compensation liabilities;
(vi) during the course of any construction, addition,
alteration or repair of the Improvements, builder's risk completed
value property insurance form
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against "all risks of physical loss" (subject to standard policy
exclusions), including collapse, water damage, flood and earthquake and
transit coverage, during construction or repairs of the Improvements,
with deductible approved by Beneficiary in its reasonable discretion,
in reporting form, covering the total replacement value of work
performed and equipment, supplies and materials furnished (with an
appropriate limit for soft costs in the case of construction);
provided, however, that the maintenance of insurance against earthquake
and flood risks shall be subject to availability of such insurance
coverage on commercially reasonable terms;
(vii) boiler and machinery property insurance covering
pressure vessels, air tanks, boilers, machinery, pressure piping,
heating, air conditioning and elevator equipment and escalator
equipment, provided the Improvements contain equipment of such nature,
in such amounts as are reasonably satisfactory to Beneficiary but not
less than the lesser of $1,000,000 or 10% of the value of the
Improvements;
(viii) if any portion of the Premises are located in an area
identified in the Federal Register as having special flood hazards by
the Secretary of Housing and Urban Development or other applicable
agency, flood insurance covering any parcel of the Trust Property which
contains improvements in an amount satisfactory to Beneficiary in its
reasonable discretion, but in no event less than the maximum limit of
coverage available with respect to the particular type of property
under the National Flood Insurance Act of 1968, as amended and with a
term ending not later than the maturity of the Indebtedness and
Beneficiary shall receive confirmation that Grantor has received the
notice required pursuant to Section 208.8(e)(3) of Regulation H of the
Board of Governors of The Federal Reserve System; and
(ix) such other insurance in such amounts as Beneficiary may
reasonably request from time to time.
Each insurance policy (other than flood insurance written under the National
Flood Insurance Act of 1968, as amended, in which case to the extent available)
shall (i) provide that it shall not be cancelled, non-renewed or, in the case of
property and boiler and machinery insurance, materially amended without 30-days'
prior written notice to Beneficiary, (ii) with respect to all property
insurance, subject to availability on commercially reasonable terms, provide for
deductibles not to exceed $250,000, other than with respect to (a) flood,
freeze, windstorm and earthquake perils for which deductibles shall not exceed
the greater of $500,000 or 5% of values at risk per
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location involved in loss and (b) boiler and machinery coverage for which
deductibles shall not exceed the greater of $500,000 or five times 100% of the
daily time element value, contain a "Replacement Cost Endorsement" without any
deduction made for depreciation and with no co-insurance penalty (or attaching
an agreed amount endorsement satisfactory to Beneficiary in its reasonable
discretion), with loss payable solely to Beneficiary (modified, if necessary and
to the extent available under such policy, to provide that proceeds in the
amount of replacement cost may be retained by Beneficiary without the obligation
to rebuild) as its interest may appear, without contribution, under a "standard"
or "New York" mortgagee clause acceptable to Beneficiary in its reasonable
discretion and be written by insurance companies having an A.M. Best Company,
Inc. rating of A- or higher and a financial size category of not less than VII,
or otherwise as approved by Beneficiary in its reasonable discretion and (iii)
contain a "manuscript" endorsement providing that Grantor may not unilaterally
cancel such policy without Beneficiary's prior written consent. Liability
insurance policies shall name Beneficiary as an additional insured and contain a
waiver of subrogation against Beneficiary; all such policies shall indemnify and
hold Beneficiary harmless from all liability claims occurring on, in or about
the Premises and the adjoining streets, sidewalks and passageways, subject to
standard policy terms, conditions and exclusions. The amounts of each insurance
policy and the form of each such policy shall at all times be satisfactory to
Beneficiary in its reasonable discretion. Each policy shall expressly provide
that any proceeds which are payable to Beneficiary shall be paid by check
payable to the order of Beneficiary only and requiring the endorsement of
Beneficiary only. If any required insurance shall expire, be withdrawn, become
void by breach of any condition thereof by Grantor or by any lessee of any part
of the Trust Property or become void or unsafe by reason of the failure or
impairment of the capital of any insurer, Grantor shall immediately obtain new
or additional insurance satisfactory to Beneficiary in its reasonable
discretion. Grantor shall not take out any separate or additional insurance
which is contributing in the event of loss unless it is properly endorsed and
otherwise satisfactory to Beneficiary in all respects in its reasonable
discretion.
(b) Grantor shall deliver to Beneficiary an original of each
insurance policy required to be maintained, or a certificate of such insurance
acceptable to Beneficiary in its reasonable discretion, together with a copy of
the declaration page for each such policy. Grantor shall (i) pay as they become
due all premiums for such insurance, (ii) not later than seven days prior to the
expiration of each policy to be furnished pursuant to the provisions of this
Section, deliver a renewed policy or policies, or certificates of insurance
acceptable to Beneficiary, in its reasonable discretion, or duplicate original
or originals thereof. Upon the reasonable request of Beneficiary, Grantor shall
cause its insurance underwriter or broker to certify to
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Beneficiary in writing that all the requirements of this Deed of Trust governing
insurance have been satisfied.
(c) If Grantor is in default of its obligations to insure or
deliver any such policy or policies, or certificates of insurance acceptable to
Beneficiary, in its reasonable discretion, then Beneficiary, at its option and
without notice, may effect such insurance from year to year, and pay the premium
or premiums therefor, and Grantor shall pay to Beneficiary on demand such
premium or premiums so paid by Beneficiary with interest from the time of
payment at the Default Rate and the same shall be deemed to be secured by this
Deed of Trust and shall be collectible in the same manner as the Indebtedness
secured by this Deed of Trust.
(d) Grantor shall increase the amount of property insurance
required to equal 100% replacement cost pursuant to the provisions of this
Section at the time of each renewal of each policy (but not later than 12 months
from the date of this Deed of Trust and each successive 12 month period to occur
thereafter) by using the Xxxxxx & Swift Building Cost Index to determine whether
there shall have been an increase in the replacement value since the most recent
adjustment and, if there shall have been such an increase, the amount of
insurance required shall be adjusted accordingly.
(e) Grantor promptly shall in all material respects comply
with and conform to (i) all provisions of each such insurance policy, and (ii)
all requirements of the insurers applicable to Grantor or to any of the Trust
Property or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration or repair of any of the Trust Property. Grantor shall
not use or permit the use of the Trust Property in any manner which would permit
any insurer to cancel any insurance policy or void coverage required to be
maintained by this Deed of Trust.
(f) (i) If the Trust Property, or any part thereof, shall be
destroyed or damaged by fire or any other casualty, whether insured or
uninsured, or in the event any claim is made against Grantor for any
personal injury, bodily injury or property damage incurred on or about
the Premises, Grantor shall promptly give notice thereof to
Beneficiary.
(ii) If the Trust Property is damaged by fire or other
casualty and the cost to repair such damage is less than $1,000,000,
then provided that no Event of Default shall have occurred and be
continuing, Grantor shall have the right to adjust such loss, and the
insurance proceeds relating to such loss may be paid over to Grantor;
provided that Grantor shall, promptly after any such damage, repair
such damage to the extent required by subsection 7.5 of the Senior
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Secured Credit Agreement regardless of whether any insurance proceeds
have been received or whether such proceeds, if received, are
sufficient to pay for the costs of repair.
(iii) If the Trust Property is damaged by fire or other
casualty, and the cost to repair such damage exceeds the limit in
Section 5(f)(ii) above, or if an Event of Default shall have occurred
and be continuing, then Grantor authorizes and empowers Beneficiary, at
Beneficiary's option and in Beneficiary's reasonable discretion, as
attorney-in-fact for Grantor, to make proof of loss, to adjust and
compromise any claim under any insurance policy, to appear in and
prosecute any action arising from any policy, to collect and receive
insurance proceeds and to deduct therefrom Beneficiary's reasonable
expenses incurred in the collection process. Each insurance company
concerned is hereby authorized and directed to make payment for such
loss directly to Beneficiary. Beneficiary shall have the right to
require Grantor to repair or restore the Trust Property to the extent
required by subsection 7.5 of the Senior Secured Credit Agreement, and
Grantor hereby designates Beneficiary as its attorney-in-fact for the
purpose of making any election required or permitted under any
insurance policy relating to such repair or restoration. The insurance
proceeds or any part thereof received by Beneficiary may be applied by
Beneficiary toward reimbursement of all reasonable costs and expenses
of Beneficiary in collecting such proceeds, and the balance, at
Beneficiary's option in its sole and absolute discretion, to the
principal (to the installments in inverse order of maturity, if payable
in installments) and interest due or to become due under the Notes, the
Senior Secured Credit Agreement or the other Loan Documents, to fulfill
any other Obligation of Grantor, to the restoration or repair of the
property damaged, or released to Grantor. Application by Beneficiary of
any insurance proceeds toward the last maturing installments of
principal and interest due or to become due on the Loans shall not
excuse Grantor from making any regularly scheduled payments due
thereunder, nor shall such application extend or reduce the amount of
such payments. In the event Beneficiary elects to release such proceeds
to Grantor, Grantor shall be obligated to use such proceeds to restore
or repair the Trust Property to the extent required by subsection 7.5
of the Senior Secured Credit Agreement.
(g) In the event of foreclosure of this Deed of Trust or other
transfer of title to the Trust Property in extinguishment of the Indebtedness,
all right, title and interest of Grantor in and to any insurance policies then
in force, to the extent assignable or transferable, shall pass to the purchaser
or grantee and Grantor hereby
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appoints Beneficiary its attorney-in-fact, in Grantor's name, to assign and
transfer all such policies and proceeds to such purchaser or grantee.
(h) Upon written notice to Grantor, Beneficiary, during the
continuance of an Event of Default, shall be entitled to require Grantor to pay
monthly in advance to Beneficiary the equivalent of 1/12th of the estimated
annual premiums due on such insurance. Beneficiary may commingle such funds with
its own funds but Grantor shall be entitled to interest thereon at a rate
mutually agreed upon by Grantor and Beneficiary.
(i) Grantor may maintain insurance required under this Deed of
Trust by means of one or more blanket insurance policies maintained by Grantor;
provided, however, that (A) any such policy shall specify, or Grantor shall
furnish to Beneficiary a written statement from the insurer so specifying, the
maximum amount of the total insurance afforded by such blanket policy that is
allocated to the Premises and the other Trust Property and any sublimits and
aggregates in such blanket policy applicable to the Premises and the other Trust
Property, (B) each such blanket policy shall include an endorsement providing
that, in the event of a loss resulting from an insured peril, insurance proceeds
shall be allocated to the Trust Property in an amount equal to the coverages
required to be maintained by Grantor as provided above (subject to applicable
sublimits and aggregates) and (C) the protection afforded under any such blanket
policy shall be no less than that which would have been afforded under a
separate policy or policies relating only to the Trust Property (subject to
applicable sublimits and aggregates).
6. Restrictions on Liens and Encumbrances. Except for the lien
of this Deed of Trust and the Permitted Exceptions and except as otherwise
permitted pursuant to the terms of the Senior Secured Credit Agreement, Grantor
shall not further mortgage, nor otherwise encumber the Trust Property nor create
or suffer to exist any lien, charge or encumbrance on the Trust Property, or any
part thereof, whether superior or subordinate to the lien of this Deed of Trust
and whether recourse or non-recourse.
7. Due on Sale and Other Transfer Restrictions. Except as may
be otherwise expressly permitted under the Senior Secured Credit Agreement,
Grantor shall not sell, transfer, convey or assign all or any portion of, or any
interest in, the Trust Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a)
Grantor shall maintain or cause to be maintained all the Improvements in good
condition and repair
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and shall not commit or suffer any waste of the Improvements. To the extent
required under subsection 7.5 of the Senior Secured Credit Agreement, Grantor
shall repair, restore, replace or rebuild promptly any part of the Premises
which may be damaged or destroyed by any casualty whatsoever to a condition
substantially equivalent to its condition prior to the damage or destruction.
Except as permitted by the Senior Secured Credit Agreement, the Improvements
shall not be demolished or materially altered, nor any material additions built,
without the prior written consent of Beneficiary, provided that Grantor may make
alterations or additions without the consent of Beneficiary that do not
materially reduce the value of the Trust Property.
(b) Beneficiary and any persons authorized by Beneficiary
shall, upon reasonable notice and at any reasonable time, have the right to
enter and inspect the Premises and the right to inspect all work done, labor
performed and materials furnished in and about the Improvements and the right to
inspect and make copies, to the extent reasonable, of all books, contracts and
records of Grantor relating to the Trust Property.
(c) Except as permitted under subsection 7.3 of the Senior
Secured Credit Agreement, Grantor shall pay or cause to be paid prior to
delinquency, all utility charges which are incurred for gas, electricity, water
or sewer services furnished to the Premises and all other assessments or charges
of a similar nature, whether public or private, affecting the Premises or any
portion thereof, whether or not such assessments or charges are liens thereon.
9. Condemnation/Eminent Domain. Promptly upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Trust Property, or any portion thereof, Grantor will notify Beneficiary of the
pendency of such proceedings. Grantor authorizes Beneficiary, at Beneficiary's
option and in Beneficiary's reasonable discretion, as attorney-in-fact for
Grantor, to commence, appear in and prosecute, in Beneficiary's or Grantor's
name, any action or proceeding relating to any condemnation of the Trust
Property, or any portion thereof, and to settle or compromise any claim in
connection with such condemnation upon the occurrence and during the continuance
of an Event of Default. If Beneficiary elects not to participate in such
condemnation proceeding, then Grantor shall, at its expense, diligently
prosecute any such proceeding and shall consult with Beneficiary, its attorneys
and experts and cooperate with them in any defense of any such proceedings. All
awards and proceeds of condemnation shall be applied in the same manner as
insurance proceeds, and to the extent such awards and proceeds exceed $1,000,000
and no Event of Default shall have occurred and be continuing, such awards and
proceeds shall be assigned to Beneficiary to be applied in the same manner as
insurance
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proceeds, as provided above in subsection 5(f)(iii) above, and Grantor agrees to
execute any such assignments of all such awards as Beneficiary may request.
10. Restoration. If Beneficiary elects or is required
hereunder to release funds to Grantor for restoration of any of the Trust
Property, then such restoration shall be performed in accordance with such
conditions as Beneficiary shall impose in its reasonable discretion, and as are
customarily imposed by construction lenders.
11. Leases. (a) Grantor shall not (i) execute an assignment or
pledge of any Lease relating to all or any portion of the Trust Property other
than in favor of Beneficiary, or (ii) without the prior written consent of
Beneficiary, which consent shall not be unreasonably withheld or delayed,
execute or permit to exist any Lease of any of the Trust Property, except for
Permitted Exceptions and except as may be otherwise expressly permitted under
the Senior Secured Credit Agreement.
(b) As to any Lease consented to by Beneficiary under
subsection 11(a) above, Grantor shall:
(i) promptly perform in all material respects all of the
provisions of the Lease on the part of the lessor thereunder to be
performed;
(ii) promptly enforce all of the material provisions of the
Lease on the part of the lessee thereunder to be performed;
(iii) appear in and defend any action or proceeding arising
under or in any manner connected with the Lease or the obligations of
Grantor as lessor or of the lessee thereunder;
(iv) exercise, within 5 business days after a reasonable
request by Beneficiary, any right to request from the lessee a
certificate with respect to the status thereof;
(v) promptly deliver to Beneficiary copies of any notices of
default which Grantor may at any time forward to or receive from the
lessee;
(vi) promptly deliver to Beneficiary a fully executed
counterpart of the Lease; and
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(vii) promptly deliver to Beneficiary, upon Beneficiary's
reasonable request, if permitted under such Lease, an assignment of the
Grantor's interest under such Lease.
(c) Grantor shall deliver to Beneficiary, within 10 business
days after a reasonable request by Beneficiary, a written statement, certified
by Grantor as being true, correct and complete, containing the names of all
lessees and other occupants of the Trust Property, the terms of all Leases and
the spaces occupied and rentals payable thereunder, and a list of all Leases
which are then in default, including the nature and magnitude of the default;
such statement shall be accompanied by such other information as Beneficiary may
reasonably request.
(d) All Leases entered into by Grantor after the date hereof,
if any, and all rights of any lessees thereunder shall be subject and
subordinate in all respects to the lien and provisions of this Deed of Trust
unless Beneficiary shall otherwise elect in writing.
(e) In the event of the enforcement by Beneficiary of any
remedy under this Deed of Trust, the lessee under each Lease shall, if requested
by Beneficiary or any other person succeeding to the interest of Beneficiary as
a result of such enforcement, and if provided, at such lessee's request, with a
nondisturbance agreement from Beneficiary or such person, attorn to Beneficiary
or to such person and shall recognize Beneficiary or such successor in interest
as lessor under the Lease without change in the provisions thereof; provided
however, that Beneficiary or such successor in interest shall not be: (i) bound
by any payment of an installment of rent or additional rent which may have been
made more than 30 days before the due date of such installment; (ii) bound by
any amendment or modification to the Lease made without the consent of
Beneficiary or such successor in interest; (iii) liable for any previous act or
omission of Grantor (or its predecessors in interest); (iv) responsible for any
monies owing by Grantor to the credit of such lessee or subject to any credits,
offsets, claims, counterclaims, demands or defenses which the lessee may have
against Grantor (or its predecessors in interest); (v) bound by any covenant to
undertake or complete any construction of the Premises or any portion thereof;
or (vi) obligated to make any payment to such lessee other than any security
deposit actually delivered to Beneficiary or such successor in interest. Each
lessee or other occupant, upon request by Beneficiary or such successor in
interest, shall execute and deliver an instrument or instruments confirming such
attornment. In addition, Grantor agrees that each Lease entered into after the
date of this Deed of Trust shall include language to the effect of subsections
(d)-(e) of this Section and language to the effect that if any act or omission
of Grantor would give any lessee under such Lease the right, immediately or
after lapse
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of a period of time, to cancel or terminate such Lease, or to xxxxx or offset
against the payment of rent or to claim a partial or total eviction, such lessee
shall not exercise such right until it has given written notice of such act or
omission to Beneficiary and until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notice without a remedy
being effected; provided that the provisions of such subsections shall be
self-operative and any failure of any Lease to include such language shall not
impair the binding effect of such provisions on any lessee under such Lease.
12. Further Assurances/Estoppel Certificates. To further
assure Beneficiary's and Trustee's rights under this Deed of Trust, Grantor
agrees upon demand of Beneficiary or Trustee to do any act or execute any
additional documents (including, but not limited to, security agreements on any
personalty included or to be included in the Trust Property and a separate
assignment of each Lease in recordable form) as may be reasonably required by
Beneficiary or Trustee to confirm the rights or benefits conferred on
Beneficiary or Trustee by this Deed of Trust.
13. Beneficiary's Right to Perform. If Grantor fails to
perform any of the covenants or agreements of Grantor, Beneficiary or Trustee,
without waiving or releasing Grantor from any obligation or default under this
Deed of Trust, may, at any time (but shall be under no obligation to) pay or
perform the same, and the amount or cost thereof, with interest at the Default
Rate, shall immediately be due from Grantor to Beneficiary or Trustee (as the
case may be) and the same shall be secured by this Deed of Trust and shall be an
encumbrance on the Trust Property prior to any right, title to, interest in or
claim upon the Trust Property attaching subsequent to the date of this Deed of
Trust. No payment or advance of money by Beneficiary or Trustee under this
Section shall be deemed or construed to cure Grantor's default or waive any
right or remedy of Beneficiary or Trustee.
14. Events of Default. The occurrence of an Event of Default
under the Senior Secured Credit Agreement shall constitute an Event of Default
hereunder.
15. Remedies. (a) Upon the occurrence of any Event of Default,
in addition to any other rights and remedies Beneficiary may have pursuant to
the Loan Documents, or as provided by law, and without limitation, the
Indebtedness and all other amounts payable with respect to the Loans, the
Letters of Credit, the Senior Secured Credit Agreement, this Deed of Trust and
the other Security Documents shall become due and payable as provided in the
Senior Secured Credit Agreement. Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived. In addition, upon the occurrence of
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any Event of Default, Beneficiary may immediately take such action, without
notice or demand, as it deems advisable to protect and enforce its rights
against Grantor and in and to the Trust Property, including, but not limited to,
the following actions, each of which may be pursued concurrently or otherwise,
at such time and in such manner as Beneficiary may determine, in its sole
discretion, without impairing or otherwise affecting the other rights and
remedies of Beneficiary:
(i) Enter upon and take possession of the Trust Property or
any part thereof, with or without legal action, and do any acts which it deems
necessary or desirable to preserve the value, marketability or rentability of
the Trust Property, or any part thereof or the value of this Deed of Trust
(including, without limitation, entering into new leases of all or any part of
the Trust Property) and, with or without taking possession of the Trust
Property, xxx for or otherwise collect the rents, issues and profits thereof,
including those past due and unpaid, and apply the same, less costs and expenses
of operation and collection including reasonable attorneys' fees, upon the
Indebtedness, all in such order as Beneficiary may determine. The entering upon
and taking possession of the Trust Property, the collection of such rents,
issues and profits and the application thereof as aforesaid, shall not cure or
waive any default or notice of default hereunder or invalidate any act done in
response to such default or pursuant to such notice of default and,
notwithstanding the continuance in possession of the Trust Property or the
collection, receipt and application of rents, issues or profits, Beneficiary
shall be entitled to exercise every right provided for in any of the Loan
Documents or by law.
(ii) Bring an action in any court of competent jurisdiction to
foreclose this Deed of Trust or to enforce any of the covenants, terms or
conditions hereof and Beneficiary shall have the right to specific performance,
injunction and any other equitable right or remedy as though other remedies were
not provided in this Deed of Trust.
(iii) Elect to cause the Trust Property or any part thereof to
be sold as follows, Grantor hereby expressly waiving any right which it may have
to direct the order in which any of the Trust Property may be sold:
(a) Beneficiary may proceed as if all of the Trust Property
were real property, in accordance with subparagraph (c) below, or
Beneficiary may elect to treat any of the Trust Property which consists
of personal property, in accordance with the Section of this Deed of
Trust entitled "Security Agreement Under Uniform Commercial Code",
separate and apart from the sale of real property, the remainder of the
Trust Property being treated as real property;
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(b) Beneficiary may cause any such sale or other disposition
to be conducted immediately following the expiration of any grace
period, if any, herein provided or Beneficiary may delay any such sale
or other disposition for such period of time as Beneficiary deems to be
in its best interest. Should Beneficiary desire that more than one such
sale or other disposition be conducted, Beneficiary may, at its option,
cause the same to be conducted simultaneously, or successively on the
same day, or at such different days or times and in such order as
Beneficiary may deem to be in its best interest;
(c) Should Beneficiary elect to sell the Trust Property upon
which Beneficiary elects to proceed under the laws governing
foreclosure of or sales pursuant to Deeds of Trust, Beneficiary or
Trustee shall give such notice of default and election to sell as may
then be required by law. Thereafter, upon the expiration of such time
and the giving of such notice of sale as may then be required by law,
Trustee, at the time and place specified by the notice of sale, shall
sell such Trust Property, or any portion thereof specified by
Beneficiary, at public auction to the highest bidder for cash in lawful
money of the United States, subject, however, to the provisions of the
Section of this Deed of Trust entitled "Right of Beneficiary to Credit
Sale". Trustee may, and upon request of Beneficiary shall, from time to
time, postpone the sale by public announcement thereof at the time and
place noticed therefor. If the Trust Property consists of several lots
or parcels, Beneficiary may elect to sell the Trust Property either as
a whole or in separate lots or parcels. If Beneficiary elects to sell
in separate lots or parcels, Beneficiary may designate the order in
which such lots or parcels shall be offered for sale or sold. Any
person, including Grantor, Trustee or Beneficiary, may purchase at the
sale. Upon any sale, Trustee shall execute and deliver to the purchaser
or purchasers a deed or deeds conveying the property so sold, but
without any covenant or warranty whatsoever, express or implied,
whereupon such purchaser or purchasers shall be let into immediate
possession;
(d) In the event of a sale or other disposition of any such
property, or any part thereof, and the execution of a deed or other
conveyance pursuant thereto, the recitals therein of facts, such as an
Event of Default, the giving of notice of default and notice of sale,
demand that such sale should be made, postponement of sale, terms of
sale, sale, purchase, payments of purchase money, and any other fact
affecting the regularity or validity of such sale or disposition shall
be conclusive proof of the truth of such facts; and any such deed or
conveyance shall be conclusive against all persons as to such facts
recited therein;
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(e) Beneficiary and/or Trustee shall apply the proceeds of any
sale or disposition hereunder in the order as provided in the Section
of this Deed of Trust entitled "Sale of the Properties; Application of
Proceeds"; and
(iv) Exercise all other rights and remedies provided herein,
in the other Loan Documents or otherwise available at law or equity.
16. Sale of the Properties; Application of Proceeds. (a)
Subject to the requirements of applicable law, the proceeds or avails of any
foreclosure sale and all moneys received by Beneficiary pursuant to any right
given or action taken under the provisions of this Deed of Trust shall be
applied as follows:
First: To the payment of the costs and expenses of any such
sale or other enforcement proceedings in accordance with the terms
hereof and of any judicial proceeding wherein the same may be made, and
in addition thereto, reasonable compensation to Beneficiary, its agents
and counsel, and all actual out of pocket expenses, advances,
liabilities and sums made or furnished or incurred by Beneficiary or
the holder of this Deed of Trust under this Deed of Trust and the other
Loan Documents, together with interest at the Default Rate (or such
lesser amount as may be the maximum amount permitted by law), and all
taxes, assessments or other charges, except any taxes, assessments or
other charges subject to which the Trust Property shall have been sold;
Second: To the payment of the aggregate amount when due, owing
and unpaid (whether by acceleration or otherwise) upon the Indebtedness
for principal and interest; and in case such proceeds shall be
insufficient to pay in full the whole aggregate amount so due and
unpaid, then first, to the payment of all amounts of interest at the
time due and payable on the Indebtedness, without preference or
priority of any installment of interest over any other installment of
interest, and with payment of interest on the Notes and other
instruments evidencing the Indebtedness being applied pro rata based on
the amount of interest then due pursuant to the Notes, the Senior
Secured Credit Agreement and other instrument evidencing the
Indebtedness, and second, to the payment of all amounts of principal,
with payment of principal due under the Notes, the Senior Secured
Credit Agreement and other instruments evidencing the Indebtedness
being applied pro rata based on the amount of principal due under the
Notes, the Senior Secured Credit Agreement and other instrument
evidencing the Indebtedness; all such payments of principal and
interest to be made ratably to the holders entitled thereto.
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Third: To the payment of any other sums required to be paid by
Grantor pursuant to any provision of this Deed of Trust, or any other
Loan Document.
Fourth: To the payment of the surplus, if any, to whomsoever
may be lawfully entitled to receive the same.
17. Trustee's Powers and Liabilities.
(a) Powers of Trustee. At any time or from time to time,
without liability therefor and without notice, upon the written request of
Beneficiary and presentation of the Notes and the other instruments evidencing
the indebtedness and this Deed of Trust for endorsement, without affecting the
personal liability of any person for the payment of the indebtedness secured
hereby, and without affecting the lien of this Deed of Trust upon the Trust
Property for the full amount of all amounts secured hereby, Trustee may (i)
reconvey all or any part of the Trust Property, (ii) consent to the making of
any map or plat thereof, (iii) join in granting any easement thereon or in
creating any covenants or conditions restricting use or occupancy thereof, or
(iv) join in any extension agreement or in any agreement subordinating the lien
or charge hereof.
(b) Reconveyance. Upon written request of Beneficiary stating
that all sums secured hereby have been paid, and upon surrender of this Deed of
Trust and the Notes and the other instruments evidencing the Indebtedness to
Trustee for cancellation and retention, and upon payment of its fees, Trustee
shall reconvey, without warranty, the property then held hereunder. The recitals
in any such reconveyance of any matters or facts shall be conclusive proof of
the truth thereof. The grantee in such reconveyance may be described as "the
person or persons legally entitled thereto."
(c) Trustee Notice. Trustee is not obligated to notify any
party hereto of any pending sale under any other deed of trust or of any action
or proceeding in which Grantor, Beneficiary or Trustee shall be a party, unless
brought by Trustee.
(d) Compensation and Indemnification of Trustee. Trustee shall
be entitled to reasonable compensation for all services rendered or expenses
incurred in the administration or execution of the trusts hereby created and
Grantor hereby agrees to pay the same. Trustee shall be indemnified, held
harmless and reimbursed by Grantor for any liability, damage or expense,
including reasonable attorneys' fees and amounts paid in settlement, which
Trustee may incur or sustain in connection with this Deed of Trust or in the
doing of any act which Trustee is required or permitted to do by the terms
hereof or by law.
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(e) Substitute Trustees. Beneficiary may substitute the
Trustee hereunder in any manner now or hereafter provided by law, or in lieu
thereof, Beneficiary may from time to time, by an instrument in writing,
substitute a successor or successors to any Trustee named herein or acting
hereunder, which instrument, executed and acknowledged by Beneficiary and
recorded in the office of the recorder of the county or counties where the Trust
Property is situated, shall be conclusive proof of proper substitution of such
successor Trustee or Trustees, who shall thereupon, and without conveyance from
the predecessor Trustee, succeed to all its title, estate, rights, powers and
duties. Such instrument must contain the name of the original Grantor, Trustee
and Beneficiary hereunder, the book and page where this Deed of Trust is
recorded, the legal description of the Land and the name and address of the new
Trustee.
(f) Acceptance by Trustee. The acceptance by Trustee of this
trust shall be evidenced when this Deed of Trust, duly executed and
acknowledged, is made a public record as provided by law.
(g) Trust Irrevocable; No Offset. The trust created hereby is
irrevocable by Grantor. No offset or claim that Grantor now or may in the future
have against Beneficiary shall relieve Grantor from paying installments or
performing any other obligation herein or secured hereby.
(h) Corrections. Grantor will, upon request of Beneficiary or
Trustee, promptly correct any defect, error or omission which may be discovered
in the contents of this Deed of Trust or in the execution or acknowledgement
hereof, and will execute, acknowledge and deliver such further instruments and
do such further acts as may be necessary or as may be reasonably requested by
Beneficiary or Trustee to carry out more effectively the purposes of this Deed
of Trust, to subject to the lien and security interests hereby created any of
Grantor's properties, rights or interest covered or intended to be covered
hereby, and to perfect and maintain such lien and security interest.
18. Request for Notice. In accordance with California Civil
Code Section 2924b, a request is hereby made by Grantor that a copy of any
notice of default and a copy of any notice of sale under this Deed of Trust be
mailed to Grantor at Grantor's address set forth in the first paragraph of this
Deed of Trust.
19. Successor Grantor. In the event ownership of the Trust
Property or any portion thereof becomes vested in a person other than the
Grantor herein named, Beneficiary may, without notice to the Grantor herein
named, whether or not
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Beneficiary has given written consent to such change in ownership, deal with
such successor or successors in interest with reference to this Deed of Trust
and the Indebtedness and the Obligations, and in the same manner as with the
Grantor herein named, without in any way vitiating or discharging Grantor's
liability hereunder or under the Indebtedness and the Obligations.
20. Right of Beneficiary to Credit Sale. Upon the occurrence
of any sale made under this Deed of Trust, whether made under the power of sale
or by virtue of judicial proceedings or of a judgment or decree of foreclosure
and sale, Beneficiary may bid for and acquire the Trust Property or any part
thereof. In lieu of paying cash therefor, Beneficiary may make settlement for
the purchase price by crediting upon the Indebtedness or other sums secured by
this Deed of Trust the net sales price after deducting therefrom the expenses of
sale and the cost of the action and any other sums which Beneficiary is
authorized to deduct under this Deed of Trust. In such event, this Deed of
Trust, the Notes and other instruments evidencing the Indebtedness and any and
all documents evidencing expenditures secured hereby may be presented to the
person or persons conducting the sale in order that the amount so used or
applied may be credited upon the Indebtedness as having been paid.
21. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Beneficiary as a matter of right and without notice
to Grantor, unless otherwise required by applicable law, and without regard to
the adequacy or inadequacy of the Trust Property or any other collateral as
security for the Indebtedness and Obligations or the interest of Grantor
therein, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers or other manager of the Trust Property, without
requiring the posting of a surety bond and without reference to the adequacy or
inadequacy of the value of the Trust Property or the solvency or insolvency of
Grantor or any other party obligated for payment of all or any part of the
Indebtedness, and whether or not waste has occurred with respect to the Trust
Property. Grantor hereby irrevocably consents to such appointment and waives
notice of any application therefor (except as may be required by law). Any such
receiver or receivers shall have all the usual powers and duties of receivers in
like or similar cases and all the powers and duties of Beneficiary in case of
entry as provided in this Deed of Trust, including, without limitation and to
the extent permitted by law, the right to enter into leases of all or any part
of the Trust Property, and shall continue as such and exercise all such powers
until the date of confirmation of sale of the Trust Property unless such
receivership is sooner terminated.
22. Extension, Release, etc. (a) Without affecting the
encumbrance or charge of this Deed of Trust upon any portion of the Trust
Property not then or
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theretofore released as security for the full amount of the Indebtedness,
Beneficiary may, from time to time and without notice, agree to (i) release any
person liable for the Indebtedness, (ii) extend the maturity or alter any of the
terms of the Indebtedness or any guaranty thereof, (iii) grant other
indulgences, (iv) release or reconvey, or cause to be released or reconveyed at
any time at Beneficiary's option any parcel, portion or all of the Trust
Property, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make compositions or other arrangements
with debtors in relation thereto. If at any time this Deed of Trust shall secure
less than all of the principal amount of the Indebtedness, it is expressly
agreed that any repayments of the principal amount of the Indebtedness shall not
reduce the amount of the encumbrance of this Deed of Trust until the encumbrance
amount shall equal the principal amount of the Indebtedness outstanding.
(b) No recovery of any judgment by Beneficiary and no levy of
an execution under any judgment upon the Trust Property or upon any other
property of Grantor shall affect the encumbrance of this Deed of Trust or any
liens, rights, powers or remedies of Beneficiary or Trustee hereunder, and such
liens, rights, powers and remedies shall continue unimpaired.
(c) If Beneficiary shall have the right to foreclose this Deed
of Trust or to direct the Trustee to exercise its power of sale, Grantor
authorizes Beneficiary at its option to foreclose the lien of this Deed of Trust
(or direct the Trustee to sell the Trust Property, as the case may be) subject
to the rights of any tenants of the Trust Property. The failure to make any such
tenants parties defendant to any such foreclosure proceeding and to foreclose
their rights, or to provide notice to such tenants as required in any statutory
procedure governing a sale of the Trust Property by Trustee, or to terminate
such tenant's rights in such sale will not be asserted by Grantor as a defense
to any proceeding instituted by Beneficiary to collect the Indebtedness or to
foreclose this Deed of Trust.
(d) Unless expressly provided otherwise, in the event that
Beneficiary's interest in this Deed of Trust and title to the Trust Property or
any estate therein shall become vested in the same person or entity, this Deed
of Trust shall not merge in such title but shall continue as a valid charge on
the Trust Property for the amount secured hereby.
23. Security Agreement under Uniform Commercial Code. (a) It
is the intention of the parties hereto that this Deed of Trust shall constitute
a Security Agreement within the meaning of the Uniform Commercial Code (the
"CODE") of the State in which the Trust Property is located, and Grantor hereby
grants a security
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interest in all of the personal property of Grantor described in the Granting
Clauses of this Deed of Trust. If an Event of Default shall occur under this
Deed of Trust, then in addition to having any other right or remedy available at
law or in equity, Beneficiary shall have the option of either (i) proceeding
under the Code and exercising such rights and remedies as may be provided to a
secured party by the Code with respect to all or any portion of the Trust
Property which is personal property (including, without limitation, taking
possession of and selling such property) or (ii) treating such property as real
property and proceeding with respect to both the real and personal property
constituting the Trust Property in accordance with Beneficiary's rights, powers
and remedies with respect to the real property (in which event the default
provisions of the Code shall not apply). If Beneficiary shall elect to proceed
under the Code, then five days' notice of sale of the personal property shall be
deemed reasonable notice and the reasonable expenses of retaking, holding,
preparing for sale, selling and the like incurred by Beneficiary shall include,
but not be limited to, reasonable attorneys' fees and legal expenses. At
Beneficiary's request, during the continuance of an Event of Default, Grantor
shall assemble the personal property and make it available to Beneficiary at a
place designated by Beneficiary which is reasonably convenient to both parties.
(b) Grantor and Beneficiary agree, to the extent permitted by
law, that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this Deed of
Trust upon recording or registration in the real estate records of the proper
office shall constitute a financing statement filed as a "fixture filing" within
the meaning of Sections 9-313 and 9-402 of the Code; (iii) Grantor is the record
owner of the Real Estate; and (iv) the addresses of Grantor and Beneficiary are
as set forth on the first page of this Deed of Trust.
(c) Grantor, upon request by Beneficiary from time to time,
shall execute, acknowledge and deliver to Beneficiary one or more separate
security agreements, in form satisfactory to Beneficiary in its reasonable
discretion, covering all or any part of the Trust Property and will further
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, any financing statement, affidavit, continuation statement or
certificate or other document as Beneficiary may request in order to perfect,
preserve, maintain, continue or extend the security interest under and the
priority of this Deed of Trust and such security instrument. Grantor further
agrees to pay to Beneficiary on demand all reasonable costs and expenses
incurred by Beneficiary in connection with the preparation, execution,
recording, filing and refiling of any such document and all reasonable costs and
expenses of any record searches for financing statements Beneficiary shall
reasonably require. If Grantor shall fail to furnish any financing or
continuation statement within 10 days after request by
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Beneficiary, then pursuant to the provisions of the Code, Grantor hereby
authorizes Beneficiary, without the signature of Grantor, to execute and file
any such financing and continuation statements. The filing of any financing or
continuation statements in the records relating to personal property or chattels
shall not be construed as in any way impairing the right of Beneficiary to
proceed against any personal property encumbered by this Deed of Trust as real
property, as set forth above.
24. Assignment of Rents. Grantor hereby absolutely and
unconditionally assigns, transfers, conveys and sets over to Beneficiary, the
Rents as further security for the payment of the Indebtedness and performance of
the Obligations, and Grantor grants to Beneficiary the right to enter the Trust
Property for the purpose of collecting the same and to let the Trust Property or
any part thereof and to apply the Rents on account of the Indebtedness. The
foregoing assignment and grant is present and absolute and shall continue in
effect until the Indebtedness is paid in full, but Beneficiary and Trustee
hereby waive the right to enter the Trust Property for the purpose of collecting
the Rents, letting the Trust Property or any part thereof or applying the Rents
and Grantor shall be entitled to collect, receive, use and retain the Rents
until the occurrence of an Event of Default under this Deed of Trust; such right
of Grantor to collect, receive, use and retain the Rents may be revoked by
Beneficiary upon the occurrence of any Event of Default under this Deed of Trust
by giving not less than five days' written notice of such revocation to Grantor;
in the event such notice is given, Grantor shall pay over to Beneficiary, or to
any receiver appointed to collect the Rents, any lease security deposits, and
shall pay monthly in advance to Beneficiary, or to any such receiver, the fair
and reasonable rental value as determined by Beneficiary for the use and
occupancy of the Trust Property or of such part thereof as may be in the
possession of Grantor or any affiliate of Grantor, and upon default in any such
payment Grantor and any such affiliate will vacate and surrender the possession
of the Trust Property to Beneficiary or to such receiver, and in default thereof
may be evicted by summary proceedings or otherwise. Grantor shall not accept
prepayments of installments of Rent to become due for a period of more than one
month in advance (except for security deposits and estimated payments of
percentage rent, if any).
25. Trust Funds. All lease security deposits of the Real
Estate shall be treated as trust funds not to be commingled with any other funds
of Grantor. Within 10 days after request by Beneficiary, Grantor shall furnish
Beneficiary satisfactory evidence of compliance with this subsection, together
with a statement of all lease security deposits by lessees and copies of all
Leases not previously delivered to Beneficiary under which such security
deposits are held, which statement shall be certified by Grantor.
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26. Additional Rights. The holder of any subordinate lien or
subordinate deed of trust on the Trust Property shall have no right to terminate
any Lease whether or not such Lease is subordinate to this Deed of Trust nor
shall any holder of any subordinate lien or subordinate deed of trust join any
tenant under any Lease in any trustee's sale or action to foreclose the lien or
modify, interfere with, disturb or terminate the rights of any tenant under any
Lease. By recordation of this Deed of Trust all subordinate lienholders and the
trustees and beneficiaries under subordinate deeds of trust are subject to and
notified of this provision, and any action taken by any such lienholder or
trustee or beneficiary contrary to this provision shall be null and void. Upon
the occurrence of any Event of Default, Beneficiary may, in its sole discretion
and without regard to the adequacy of its security under this Deed of Trust,
apply all or any part of any amounts on deposit with Beneficiary under this Deed
of Trust against all or any part of the Indebtedness. Any such application shall
not be construed to cure or waive any Default or Event of Default or invalidate
any act taken by Beneficiary on account of such Default or Event of Default.
27. Changes in Method of Taxation. In the event of the passage
after the date hereof of any law of any Governmental Authority deducting from
the value of the Premises for the purposes of taxation any lien or deed of trust
thereon, or changing in any way the laws for the taxation of mortgages or deeds
of trust or debts secured thereby for federal, state or local purposes, or the
manner of collection of any such taxes, and imposing a tax, either directly or
indirectly, on mortgages or deeds of trust or debts secured thereby, the holder
of this Deed of Trust shall have the right to declare the Indebtedness due on a
date to be specified by not less than 30 days' written notice to be given to
Grantor unless within such 30-day period Grantor shall assume as an Obligation
hereunder the payment of any tax so imposed until full payment of the
Indebtedness and such assumption shall be permitted by law.
28. Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been sufficiently given or
served when served in the same manner as set forth for notices in the Senior
Secured Credit Agreement. The Trustee's address for notices shall be the
Trustee's address given on the first page of this Deed of Trust.
29. No Oral Modification. This Deed of Trust may not be
changed or terminated orally. Any agreement made by Grantor and Beneficiary
after the date of this Deed of Trust relating to this Deed of Trust shall be
superior to the rights of the holder of any intervening or subordinate deed of
trust, lien or encumbrance. Trustee's execution of any written agreement between
Grantor and Beneficiary shall not be required for the effectiveness thereof as
between Grantor and Beneficiary.
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30. Partial Invalidity. In the event any one or more of the
provisions contained in this Deed of Trust shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary anything contained in this Deed of
Trust or in any provisions of the Indebtedness or Loan Documents, the
obligations of Grantor and of any other obligor under the Indebtedness or Loan
Documents shall be subject to the limitation that Beneficiary shall not charge,
take or receive, nor shall Grantor or any other obligor be obligated to pay to
Beneficiary, any amounts constituting interest in excess of the maximum rate
permitted by law to be charged by Beneficiary.
31. Grantor's Waiver of Rights. To the fullest extent
permitted by law, Grantor waives the benefit of all laws now existing or that
may subsequently be enacted providing for (i) any appraisement before sale of
any portion of the Trust Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Trust Property from attachment, levy or sale under execution or
exemption from civil process. To the full extent Grantor may do so, Grantor
agrees that Grantor will not at any time insist upon, plead, claim or take the
benefit or advantage of any law now or hereafter in force providing for any
appraisement, valuation, stay, exemption, extension or redemption, or requiring
foreclosure of this Deed of Trust before exercising any other remedy granted
hereunder and Grantor, for Grantor and its successors and assigns, and for any
and all persons ever claiming any interest in the Trust Property, to the extent
permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of the secured indebtedness and marshalling in the event
of exercise by Trustee or Beneficiary of the power of sale or other rights
hereby created.
32. Remedies Not Exclusive. Beneficiary and Trustee shall be
entitled to enforce payment of the Indebtedness and performance of the
Obligations and to exercise all rights and powers under this Deed of Trust or
under any of the other Loan Documents or other agreement or any laws now or
hereafter in force, notwithstanding some or all of the Indebtedness and
Obligations may now or hereafter be otherwise secured, whether by deed of trust,
mortgage, security agreement, pledge, lien, assignment or otherwise. Neither the
acceptance of this Deed of Trust nor its enforcement, shall prejudice or in any
manner affect Beneficiary's or Trustee's right to realize upon or enforce any
other security now or hereafter held by Beneficiary or Trustee, it being agreed
that Beneficiary and Trustee shall be entitled to enforce this
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Deed of Trust and any other security now or hereafter held by Beneficiary or
Trustee in such order and manner as Beneficiary may determine in its absolute
discretion. No remedy herein conferred upon or reserved to Trustee or
Beneficiary is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the Loan Documents
to Beneficiary or Trustee or to which either may otherwise be entitled, may be
exercised, concurrently or independently, from time to time and as often as may
be deemed expedient by Beneficiary or Trustee, as the case may be. In no event
shall Beneficiary or Trustee, in the exercise of the remedies provided in this
Deed of Trust (including, without limitation, in connection with the assignment
of Rents, or the appointment of a receiver and the entry of such receiver on to
all or any part of the Trust Property), be deemed a "mortgagee in possession,"
and neither Beneficiary nor Trustee shall in any way be made liable for any act,
either of commission or omission, in connection with the exercise of such
remedies.
33. Multiple Security. If (a) the Premises shall consist of
one or more parcels, whether or not contiguous and whether or not located in the
same county, or (b) in addition to this Deed of Trust, Beneficiary shall now or
hereafter hold or be the beneficiary of one or more additional mortgages, liens,
deeds of trust or other security (directly or indirectly) for the Indebtedness
upon other property in the State in which the Premises are located (whether or
not such property is owned by Grantor or by others) or (c) both the
circumstances described in clauses (a) and (b) shall be true, then to the
fullest extent permitted by law, Beneficiary may, at its election, commence or
consolidate in a single trustee's sale or foreclosure action all trustee's sale
or foreclosure proceedings against all such collateral securing the Indebtedness
(including the Trust Property), which action may be brought or consolidated in
the courts of, or sale conducted in, any county in which any of such collateral
is located. Grantor acknowledges that the right to maintain a consolidated
trustee's sale or foreclosure action is a specific inducement to Beneficiary to
extend the Indebtedness, and Grantor expressly and irrevocably waives any
objections to the commencement or consolidation of the foreclosure proceedings
in a single action and any objections to the laying of venue or based on the
grounds of forum non conveniens which it may now or hereafter have. Grantor
further agrees that if Trustee or Beneficiary shall be prosecuting one or more
foreclosure or other proceedings against a portion of the Trust Property or
against any collateral other than the Trust Property, which collateral directly
or indirectly secures the Indebtedness, or if Beneficiary shall have obtained a
judgment of foreclosure and sale or similar judgment against such collateral
(or, in the case of a trustee's sale, shall have met the statutory requirements
therefor with respect to such collateral), then, whether or not such proceedings
are being maintained or judgments
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were obtained in or outside the State in which the Premises are located,
Beneficiary may commence or continue any trustee's sale or foreclosure
proceedings and exercise its other remedies granted in this Deed of Trust
against all or any part of the Trust Property and Grantor waives any objections
to the commencement or continuation of a foreclosure of this Deed of Trust or
exercise of any other remedies hereunder based on such other proceedings or
judgments, and waives any right to seek to dismiss, stay, remove, transfer or
consolidate either any action under this Deed of Trust or such other proceedings
on such basis. The commencement or continuation of proceedings to sell the Trust
Property in a trustee's sale, to foreclose this Deed of Trust or the exercise of
any other rights hereunder or the recovery of any judgment by Beneficiary or the
occurrence of any sale by the Trustee in any such proceedings shall not
prejudice, limit or preclude Beneficiary's right to commence or continue one or
more trustee's sales, foreclosure or other proceedings or obtain a judgment
against (or, in the case of a trustee's sale, to meet the statutory requirements
for, any such sale of) any other collateral (either in or outside the State in
which the Real Estate is located) which directly or indirectly secures the
Indebtedness, and Grantor expressly waives any objections to the commencement
of, continuation of, or entry of a judgment in such other sales or proceedings
or exercise of any remedies in such sales or proceedings based upon any action
or judgment connected to this Deed of Trust, and Grantor also waives any right
to seek to dismiss, stay, remove, transfer or consolidate either such other
sales or proceedings or any sale or action under this Deed of Trust on such
basis. It is expressly understood and agreed that to the fullest extent
permitted by law, Beneficiary may, at its election, cause the sale of all
collateral which is the subject of a single trustee's sale or foreclosure action
at either a single sale or at multiple sales conducted simultaneously and take
such other measures as are appropriate in order to effect the agreement of the
parties to dispose of and administer all collateral securing the Indebtedness
(directly or indirectly) in the most economical and least time-consuming manner.
34. Successors and Assigns. All covenants of Grantor contained
in this Deed of Trust are imposed solely and exclusively for the benefit of
Beneficiary and Trustee and their respective successors and assigns, and no
other person or entity shall have standing to require compliance with such
covenants or be deemed, under any circumstances, to be a beneficiary of such
covenants, any or all of which may be freely waived in whole or in part by
Beneficiary or Trustee at any time if in the sole discretion of either of them
such waiver is deemed advisable. All such covenants of Grantor shall run with
the land and bind Grantor, the successors and assigns of Grantor (and each of
them) and all subsequent owners, encumbrancers and tenants of the Trust
Property, and shall inure to the benefit of Beneficiary, Trustee and their
respective successors and assigns. Without limiting the generality of the
foregoing, any successor
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to Trustee appointed by Beneficiary shall succeed to all rights of Trustee as if
such successor had been originally named as Trustee hereunder. The word
"Grantor" shall be construed as if it read "Grantors" whenever the sense of this
Deed of Trust so requires and if there shall be more than one Grantor, the
obligations of the Grantors shall be joint and several.
35. No Waivers, etc. Any failure by Beneficiary to insist upon
the strict performance by Grantor of any of the terms and provisions of this
Deed of Trust shall not be deemed to be a waiver of any of the terms and
provisions hereof, and Beneficiary or Trustee, notwithstanding any such failure,
shall have the right thereafter to insist upon the strict performance by Grantor
of any and all of the terms and provisions of this Deed of Trust to be performed
by Grantor. Beneficiary may release, regardless of consideration and without the
necessity for any notice to or consent by the beneficiary of any subordinate
deed of trust or the holder of any subordinate lien on the Trust Property, any
part of the security held for the obligations secured by this Deed of Trust
without, as to the remainder of the security, in anywise impairing or affecting
this Deed of Trust or the priority of this Deed of Trust over any subordinate
lien or deed of trust.
36. Governing Law, etc. This Deed of Trust shall be governed
by and construed in accordance with the laws of the State in which the Premises
are located, except that Grantor expressly acknowledges that by its terms the
Senior Secured Credit Agreement shall be governed and construed in accordance
with the laws of the State of New York, without regard to principles of conflict
of law, and for purposes of consistency, Grantor agrees that in any in personam
proceeding related to this Deed of Trust the rights of the parties to this Deed
of Trust shall also be governed by and construed in accordance with the laws of
the State of New York governing contracts made and to be performed in that
State, without regard to principles of conflict of law.
37. Waiver of Trial by Jury. Grantor, Trustee and Beneficiary
each hereby irrevocably and unconditionally waive trial by jury in any action,
claim, suit or proceeding relating to this Deed of Trust and for any
counterclaim brought therein.
38. Certain Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Deed of Trust shall be used interchangeably in singular or plural form
and the word "Grantor" shall mean "each Grantor or any subsequent owner or
owners of the Trust Property or any part thereof or interest therein," the word
"Beneficiary" shall mean "Beneficiary or any successor Administrative Agent,"
the word "Trustee" shall mean "Trustee and any successor trustee hereunder," the
word "Notes" shall mean "the notes that may from
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time to time be given pursuant to the terms of the Senior Secured Credit
Agreement or any other evidence of indebtedness secured by this Deed of Trust,"
the word "person" shall include any individual, corporation, partnership, trust,
unincorporated association, government, governmental authority, or other entity,
and the words "Trust Property" shall include any portion of the Trust Property
or interest therein. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa. The
captions in this Deed of Trust are for convenience or reference only and in no
way limit or amplify the provisions hereof.
39. Reconveyance of Deed Of Trust. Upon payment in full of the
Indebtedness, the termination of all Commitments under the Senior Secured Credit
Agreement secured hereby and the compliance with the Obligations then required
to be complied with, Beneficiary shall release the encumbrance of this Deed of
Trust. If any of the Trust Property shall be sold, transferred or otherwise
disposed of by Grantor in a transaction expressly permitted by the Senior
Secured Credit Agreement, then Beneficiary shall execute and deliver, and shall
cause Trustee to execute and deliver to Grantor (at the sole cost and expense of
Grantor) all releases, reconveyances or other documents reasonably necessary or
desirable for the release of such Trust Property from the encumbrance of this
Deed of Trust.
40. Conflict With Senior Secured Credit Agreement. In the
event of any conflict or inconsistency between the terms and provisions of this
Deed of Trust and the terms and provisions of the Senior Secured Credit
Agreement, the terms and provisions of the Senior Secured Credit Agreement shall
govern, other than with respect to the Section of this Deed of Trust captioned
"Governing Law, etc.". By their execution of the Senior Secured Credit
Agreement, each Lender hereby agrees that it shall not have the right to
institute any suit for enforcement of Notes or any other Indebtedness secured by
this Deed of Trust or any other Security Document, if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would, under
applicable law, result in the surrender, impairment, waiver or loss of the Lien
of this Deed of Trust or any other Security Document or impede or delay the
enforcement of the Lien of this Deed of Trust or any other Security Document.
41. Receipt of Copy. Grantor acknowledges that it has received
a true copy of this Deed of Trust.
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This Deed of Trust has been duly executed by Grantor as of the
date first above written.
Signed, sealed and EV INTERNATIONAL, INC.
delivered in our
presence: By: /s/ XXXXXXXXX X. VANDEN BEUKEL
-------------------------------------
Name: Xxxxxxxxx X. Vanden Beukel
Title: Vice President, Secretary and
Treasurer
/s/ XXXXXX XXXXXXX
---------------------------
Name: Xxxxxx Xxxxxxx
/s/ XXXX XXXXX
---------------------------
Name: Xxxx Xxxxx
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 10th day of February in the year 1997 before me, Xxxxx
Xxxxxxx, a Notary Public of said State, duly commissioned and sworn, personally
appeared Xxxxxxxxx X. Vanden Beukel, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person who executed the within
instrument as vice president, secretary and treasurer, or on behalf of the
corporation therein and acknowledged to me that such corporation executed the
same.
In Witness Whereof, I have hereunto set my hand and affixed by
official seal the day and year in this certificate first above written.
/s/ XXXXX X. XXXXXXX
-----------------------------------------
Notary Public
[Notarial Stamp]
XXXXX X. XXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires June 3, 1998
38
CERTIFICATION PURSUANT TO CALIFORNIA GOVERNMENT CODE 27361.7:
I certify under penalty of perjury that the notary seal and stamp on the
document to which this statement is attached reads as follows:
Name of Notary: Xxxxx X. Xxxxxxx
---------------------------------
Date Commission Expires: June 3, 1998
-----------------------
County where qualification
or bond is filed: New York County, New York
------------------------------
Place of execution: New York County, New York
----------------------------
Signature: /s/ XXXXX X. XXXXXXX
-------------------------------------
Print Name: Xxxxx X. Xxxxxxx
39
0000 Xxxxxxxx Xxxx.
Xxx Xxxxxx, XX 00000
Los Angeles County
Schedule A
Legal Description
XXX 0 XX XXXXX 00000, IN THE CITY OF LOS ANGELES, IN THE COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 868 PAGES 18 AND 19 OF MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
