EXHIBIT 10.14
COLLATERAL IS OR INCLUDES FIXTURES
XXXXX XX XXXXX XXXXXXXX
XXXXXX XX XXXXXXX XXX XXXXXX OF NORTHAMPTON
DEED OF TRUST AND SECURITY AGREEMENT
BY AND AMONG
PANDA-XXXXXXXX, L.P. (doing business in the State of North
Carolina as Panda-Xxxxxxxx, Limited Partnership),
Grantor,
XXXX X. XXXXX,
the Trustee,
AND
FLEET NATIONAL BANK, AS COLLATERAL AGENT,
the Beneficiary
Dated: As of July 30, 1996
Drawn by and mail to: Xxxxxxx Xxxxxx, Esq.
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
TABLE OF CONTENTS
ARTICLE I THE OBLIGATIONS 6
1.1 Loan 6
1.2 Use of Loan Funds 7
1.3 Definition of Terms 7
1.4 Obligations Secured 7
ARTICLE II GRANTOR'S COVENANTS, REPRESENTATIONS AND
AGREEMENTS 7
2.1 Title to Property 7
2.4 Taxes and Fees 7
2.5 Reimbursement 8
2.6 Additional Documents 8
2.7 Hold Harmless 8
2.8 Recording and Filing 9
2.9 Payment of Fees 9
2.10 Leases and Other Agreements 9
2.11 Prepayment of Rent 10
2.12 Maintenance and Modification of Mortgaged Property 10
2.13 Identity of Grantor 10
2.14 Compliance with Law 10
2.15 Inspection 11
2.16 Release and Waivers 11
2.17 Insurance 11
2.18 Eminent Domain 12
2.19 No Hazardous Material 11
2.21 Ground Lease 12
2.22 Estoppel Certificate 14
ARTICLE III ASSIGNMENT OF RENTS AND LEASES 15
3.1 Assignment of Rents, Profits, Etc 15
3.2 Assignment of Subleases 15
3.3 Warranties Concerning Subleases and Rents 16
3.4 Grantor's Covenants of Performance 16
3.5 Prior Approval for Actions Affecting Subleases 16
3.6 Rejection of Leases 17
3.7 Beneficiary in Possession 17
3.8 Appointment of Attorney 17
3.9 Indemnification 18
3.10 Records 18
3.11 Merger 18
3.12 Right to Rely 18
ARTICLE IV EVENTS OF DEFAULT 18
4.1 Events of Default 18
4.2 Trust Indenture; Intercreditor Agreement 18
4.3 Encroachments 18
ARTICLE V FORECLOSURE 19
5.1 Foreclosure 19
5.2 Power of Sale 19
5.3 Proceeds of Sale 19
5.4 Trustees Fee 20
ARTICLE VI ADDITIONAL RIGHTS AND REMEDIES
OF THE BENEFICIARY 20
6.1 Rights Upon an Event of Default 20
6.2 Appointment of Receiver 21
6.3 Environmental Investigation and Assessment 21
6.4 Waivers 21
ARTICLE VII GENERAL CONDITIONS 21
7.1 Substitution of Trustee 21
7.2 Terms 22
7.3 Notices 22
7.4 Greater Estate 22
7.5 Imposition of Tax 23
7.6 Invalidation of Provisions 23
7.7 Headings 23
7.8 Governing Law 23
7.9 Controlling Agreement 23
DEED OF TRUST AND SECURITY AGREEMENT
COLLATERAL IS OR INCLUDES FIXTURES
This DEED OF TRUST AND SECURITY AGREEMENT (the "Deed of
Trust") is made and entered into as of the 30th day of July,
1996, by and among PANDA-ROSEMARY, L.P., a Delaware limited
partnership, doing business in the State of North Carolina as
Panda-Xxxxxxxx, Limited Partnership ("Grantor"), XXXX X. XXXXX,
an individual residing in Mecklenburg County, North Carolina (the
"Trustee"), and FLEET NATIONAL BANK, a national banking
association organized and existing under the laws of the United
States of America, as collateral agent (together with its
successors and assigns, the "Beneficiary") for the benefit of the
Secured Parties (as defined in the Trust Indenture referred to
below).
W I T N E S S E T H:
WHEREAS, Grantor is the owner of the fee estate in and
to the parcel of real property described on Exhibit A attached
hereto (the "Fee Premises");
WHEREAS, Grantor is also the owner of a leasehold
estate in the parcel of real property described on Exhibit B
attached hereto (the "Leasehold Premises") pursuant to that
certain Real Property Lease and Easement Agreement, dated as of
June 9, 1989, between The Xxxx Company, as lessor, and Panda -
Xxxxxxxx Corporation, as lessee (the "Original Ground Lease"),
which Original Ground Lease was recorded on June 13, 1989 in Book
1452, page 205, Halifax County Registry, and which Original
Ground Lease was amended pursuant to (i) First Amendment to Real
Property Lease and Easement Agreement, dated as of October 1,
1989, between The Xxxx Company and Panda - Xxxxxxxx Corporation
and recorded on October 27, 1989 in Book 1461, page 475, Halifax
County Registry, (ii) Second Amendment to Real Property Lease and
Easement Agreement, dated as of January 31, 1990, between The
Xxxx Company and Panda - Xxxxxxxx Corporation and recorded on
March 26, 1990 in Book 1472, page 465, Halifax County Registry
and (iii) Third Amendment to Real Property Lease and Easement
Agreement, dated as of March 15, 1996, between The Xxxx Company
and Grantor and recorded on May 1,1996 in Book 1670, page 16,
Halifax County Registry (the Original Ground Lease, as so
amended, and as the same may hereafter be modified, amended or
extended, being referred to as the "Ground Lease");
WHEREAS, Grantor is also the holder of certain easement
interests created pursuant to the Ground Lease (the "Ground Lease
Easements"), as more particularly described therein;
WHEREAS, Grantor is, additionally, the holder of
certain easements or rights of encroachment more particularly
described in Exhibit C attached hereto (the "Separately Granted
Easements", and, together with the Ground Lease Easements, the
"Easements");
WHEREAS, the interests of Panda - Xxxxxxxx Corporation
in and to the Ground Lease, the leasehold estate created thereby,
the Ground Lease Easements created thereunder and the Separately
Granted Easements were acquired by Grantor pursuant to that
certain (i) Leasehold and Real Property Assignment and Assumption
Agreement, dated January 6, 1992, between Panda - Xxxxxxxx
Corporation and Grantor, recorded on January 6, 1992 in Book
1520, page 564, Halifax County Registry and on January 6, 1992 in
Book 681, page 243, Northampton County Registry and (ii) Real
Property Assignment and Assumption Agreement, dated July 30,
1996, between Panda - Xxxxxxxx Corporation and Grantor, intended
to be duly recorded in the Halifax County Registry;
WHEREAS, Grantor is the legal and beneficial owner of
all of the shares of common stock issued by Panda-Xxxxxxxx
Funding Corporation, a Delaware corporation (the "Company");
WHEREAS, the Company, Grantor and Fleet National Bank,
as trustee (the "Indenture Trustee"), are parties to that certain
Trust Indenture, dated as of July 30, 1996 (as the same may be
amended, modified or supplemented, the "Trust Indenture"),
providing for the issuance by the Company of certain debt
securities (the "Bonds");
WHEREAS, Grantor has made that certain Partnership
Guaranty, dated the date hereof (as the same may be amended,
modified or supplemented, the "Partnership Guaranty"), in favor
of the Indenture Trustee to guaranty the performance by the
Company of its obligations under the Bonds and the Trust
Indenture;
WHEREAS, the Company and Grantor are parties to that
certain Loan Agreement, dated as of the date hereof (as the same
may be amended, modified or supplemented, the "Company Loan
Agreement"), pursuant to which the Company has loaned the
proceeds of the Bonds to Grantor;
WHEREAS, the Company and the Beneficiary are parties to
that certain Pledge and Security Agreement, dated the date
hereof, pursuant to which the Company has assigned to the
Beneficiary, and created a security interest in, all of its
right, title and interest in, to and under the Company Loan
Agreement and the related promissory note;
WHEREAS, in order to satisfy certain requirements of
Grantor under the Project Agreements (as defined in the Trust
Indenture), Grantor may incur indebtedness as permitted under the
Trust Indenture in connection with the issuance of letters of
credit by Bayerische Vereinsbank AG, NationsBank of Texas, N.A.,
or other Credit Banks (as defined in the Trust Indenture)
pursuant to a Credit Bank Reimbursement Agreement (as defined in
the Trust Indenture);
WHEREAS, Grantor may incur indebtedness as permitted
under the Trust Indenture in the form of working capital loans
made by the Credit Banks under a Credit Bank Working Capital
Agreement (as defined in the Trust Indenture);
WHEREAS, Grantor may also incur additional debt, as
permitted under the Trust Indenture, either directly or
indirectly through the Company, to finance certain modifications
and enhancements to the Project in the future ("Additional
Permitted Debt", as that term is defined in the Trust Indenture)
and may enter into interest rate protection agreements in
connection with the Additional Permitted Debt of Grantor;
WHEREAS, the Grantor shall receive direct and indirect
financial and other benefits from the issuance of the Bonds by
the Company pursuant to the Trust Indenture and the incurrence of
any indebtedness pursuant to any Credit Bank Reimbursement
Agreement, any Credit Bank Working Capital Agreement, and the
documents relating to any Additional Permitted Debt or interest
rate protection transactions;
WHEREAS, the Company, Grantor, Bayerische Vereinsbank
AG, the Indenture Trustee, Fleet National Bank, as depositary
agent, and the Beneficiary are parties to that certain Collateral
Agency and Intercreditor Agreement, dated as of the date hereof
(the "Intercreditor Agreement"), providing for the Beneficiary to
act as collateral agent for the Secured Parties (as defined in
the Trust Indenture); and
WHEREAS, the Beneficiary and the Secured Parties are
willing to enter into the transactions contemplated by, among
other things, the Trust Indenture and the Credit Bank Documents
(as defined in the Trust Indenture) only upon the condition,
among others, that the Grantor executes and delivers this Deed of
Trust to secure the Obligations (as hereinafter defined);
NOW THEREFORE, Grantor, in consideration of the
foregoing premises, the indebtedness herein recited and in
further consideration of the sum of ten dollars ($10.00) and
other valuable consideration paid by the Trustee to Grantor, the
receipt and sufficiency of which is hereby acknowledged,
irrevocably gives, grants, bargains, sells, transfers, assigns
and conveys to the Trustee and the Trustee's heirs, successors
and assigns, in trust, with power of sale for the benefit and
security of the Beneficiary, all of the following described land,
real property interests, buildings, leasehold interests,
easements, improvements, fixtures, furniture, appliances and
other tangible or intangible personal property:
(a) (i) All of Grantor's right, title and interest
in, to and under the Ground Lease;
(ii) All of Grantor's leasehold estate and
occupancy rights in and to the Leasehold Premises and all of
Grantor's interest, whether now existing or hereafter
arising, contingent or non-contingent, in and to the
Easements, and in and to any and all other easements,
appurtenances, servitudes, covenants and other rights or
licenses benefiting the Leasehold Premises or the Fee
Premises (the "Other Easements");
(iii) All of Grantor's right, title and interest in
and to the Fee Premises (the Fee Premises, the Leasehold
Premises and the lands covered by the Easements and Other
Easements being hereinafter collectively referred to as the
"Premises"); and
(b) All of Grantor's right, title and interest in and
to all buildings and improvements of every kind and
description now or hereafter erected or placed on the
Premises including, without limitation, the Facility and all
transformers, breakers, lines, poles, guy wires, anchors and
any other equipment and materials associated with the
Interconnection Facilities (as defined in the Ground Lease)
(collectively, the "Improvements") and all materials
intended for construction, reconstruction, alteration and
repair of such Improvements now or hereafter erected
thereon, all of which materials shall be deemed to be
included within the premises hereby conveyed immediately
upon the delivery thereof to the aforesaid Premises, and all
fixtures and articles of personal property now or hereafter
owned by Grantor and attached to or contained in and used in
connection with the aforesaid Premises and Improvements
including, without limitation, all furniture, furnishings,
apparatus, machinery, equipment, motors, elevators,
fittings, radiators, ranges, refrigerators, awnings, shades,
screens, blinds, carpeting, office equipment and other
furnishings and all plumbing, heating, lighting, cooking,
laundry, ventilating, refrigerating, incinerating, air
conditioning and sprinkler equipment, telephone systems,
televisions, television systems, computer systems and
fixtures and appurtenances thereto and all renewals or
replacements thereof or articles in substitution thereof,
whether or not the same are or shall be attached to the
Premises and Improvements in any manner (collectively, the
"Tangible Personalty"). It is intended that this Deed of
Trust shall be effective as a financing statement filed as a
fixture filing from the date of its filing for record in the
real estate records of each county in which the Mortgaged
Property is situated. Information concerning the security
interest created by this instrument may be obtained from the
Beneficiary, as secured party, at the address of the
Beneficiary stated herein, and the mailing address of
Grantor, as debtor, is as stated herein;
And, as additional security for said indebtedness,
Grantor hereby assigns to the Beneficiary the Rents (as such term
is defined in Section 3.1 hereof) and the rights described in
Sections 2.21(i) and (j) hereof.
As additional collateral and further security for the
indebtedness, Grantor does hereby assign to the Beneficiary and
grants to the Beneficiary a security interest in all of the
right, title and interest of Grantor in and to any and all leases
(including equipment leases), subleases, rental agreements,
management contracts, franchise agreements, construction
contracts, architects' contracts, technical services agreements,
licenses and permits now or hereafter affecting the Mortgaged
Property (collectively, the "Intangible Personalty") or any part
thereof, and Grantor agrees to execute and deliver to the
Beneficiary such additional instruments, in form and substance
reasonably satisfactory to the Beneficiary, as may hereafter be
requested by the Beneficiary to evidence and confirm said
assignment; provided, that acceptance of any such assignment
shall not be construed as a consent by the Beneficiary to any
lease, sublease, rental agreement, management contract, franchise
agreement, construction contract, technical services agreement or
other contract, license or permit, or to impose upon the
Beneficiary any obligation with respect thereto.
TO HAVE AND TO HOLD the same, together with all rights,
privileges, hereditaments, easements and appurtenances thereunto
belonging, subject to the Permitted Encumbrances (as such term is
defined in Section 2.1 hereof), to the Trustee and the Trustee's
heirs, successors and assigns to secure the indebtedness herein
recited and upon the trusts and for the uses and purposes
hereinafter set out and, upon this special trust: that should
the indebtedness secured hereby be paid according to the tenor
and effect thereof when the same shall be due and payable and
should Grantor timely and fully discharge its obligations secured
hereby in accordance with their respective terms, and comply with
all the covenants, terms and conditions of this Deed of Trust,
then this conveyance of the Premises, Improvements, Tangible
Personalty and Intangible Personalty (collectively referred to as
the "Mortgaged Property") shall be null and void and may be
cancelled of record at the request and at the expense of Grantor.
With respect to the Tangible Personalty not affixed to
the aforesaid Premises and conveyed herein and the Intangible
Personalty, this Deed of Trust shall be considered to be a
security agreement which creates a security interest in such
items for the benefit of the Beneficiary. In that regard,
Grantor grants to the Beneficiary all of the rights and remedies
of a secured party under the North Carolina Uniform Commercial
Code. This Deed of Trust secures a refinance of an obligation
incurred for the construction of an improvement on the land and
as such constitutes a mortgage "given to refinance a construction
mortgage" under Section 25-9-313, North Carolina General
Statutes.
Grantor, the Trustee and the Beneficiary covenant,
represent and agree as follows:
ARTICLE I
THE OBLIGATIONS
1.1 Loan. The indebtedness secured by this Deed of
Trust consists of (x) the loan in the principal amount of ONE
HUNDRED ELEVEN MILLION FOUR HUNDRED THOUSAND and no/100 dollars
($111,400,000.00) (the "Loan") from the Company to Grantor and
(y) (i) all obligations of Grantor or the Company to the
Beneficiary, the Depositary Agent or the Secured Parties now or
hereafter existing under the Trust Indenture, the Partnership
Notes, any Additional Permitted Debt, any Credit Bank Working
Capital Agreement, any Credit Bank Reimbursement Agreement, any
Interest Rate Protection Agreement, this Deed of Trust or the
Collateral Documents, whether for principal, interest (including,
without limitation, interest accruing following the filing by or
against Grantor or the Company of a bankruptcy petition, whether
or not allowed as a claim in a bankruptcy proceeding), fees,
indemnification, expenses or otherwise, and (ii) all other
liabilities, obligations, covenants and duties owing to the
Beneficiary, the Depositary Agent or the Secured Parties, from or
by Grantor or the Company of any kind or nature, present or
future, whether or not evidenced by any note, guaranty or other
instrument, arising under or in connection with the Trust
Indenture, each Partnership Guaranty, the Partnership Notes, any
Additional Permitted Debt, any Credit Bank Working Capital
Agreement, any Credit Bank Reimbursement Agreement, any Interest
Rate Protection Agreement, this Deed of Trust or the Collateral
Documents, whether or not for the payment of money, whether
direct or indirect (including those acquired by assignment),
joint or several, absolute or contingent, liquidated or
unliquidated, due or to become due, now existing or hereafter
arising, renewed or restructured, whether or not from time to
time decreased or extinguished and later increased, created or
incurred, and including, without limitation, all indebtedness of
Grantor or the Company under any instrument now or hereafter
evidencing or securing any of the foregoing and however acquired
(all such indebtedness, collectively, the "Obligations").
1.2 Use of Loan Funds. The proceeds of the Loan shall
be used to (a) refinance certain of Grantor's outstanding
indebtedness, (b) fund a debt service reserve fund, (c) pay
certain transaction costs in connection with the Loan and other
related transactions described in the Trust Indenture and (d)
partially fund the redemption of a limited partnership interest
in the Grantor held or owned by Ford Motor Credit Company.
1.3 Definition of Terms. All terms capitalized in
this Deed of Trust but not defined in this Deed of Trust shall
have the meanings ascribed to those terms in the Intercreditor
Agreement (or in the Trust Indenture and included in the
Intercreditor Agreement).
1.4 Obligations Secured. This Deed of Trust secures
the payment and performance in full when due, whether at stated
maturity, by acceleration or otherwise (including the payment of
amounts which would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. 362(a)), of all Obligations now or hereafter existing.
The amount of present advance secured by this Deed of Trust is
ONE HUNDRED ELEVEN MILLION FOUR HUNDRED THOUSAND and no/100
dollars ($111,400,000.00), and the maximum principal amount which
may be secured hereby at any one time is ONE HUNDRED TWENTY-FIVE
MILLION and no/100 dollars ($125,000,000.00). All future
obligations shall be incurred within fifteen years of the date of
this agreement. Disbursements secured hereby shall not be
required to be evidenced by a "written instrument or notation" as
described in Section 45-68(2) of the North Carolina General
Statutes, it being the intent of the parties that the
requirements of Section 45-68(2) for a "written instrument or
notation" for each advance shall not be applicable to
disbursements made under the Loan Agreement. This paragraph is
intended to be in conformance with the provisions of Article 7 of
Chapter 45 of the North Carolina General Statutes.
ARTICLE II
GRANTOR'S COVENANTS, REPRESENTATIONS AND AGREEMENTS
2.1 Title to Property. Grantor represents and
warrants that it is seised of the Mortgaged Property and has the
right to convey the same, that title to the Mortgaged Property is
marketable and free and clear of all encumbrances except for the
matters shown on the attached Exhibit D (the "Permitted
Encumbrances"), and that it shall warrant and defend such title
against the claims of all persons or parties except for the
Permitted Encumbrances. As to the Rents and the Intangible
Personalty, Grantor represents and warrants that it has title to
such property, that it has the right to convey such property, and
that it shall warrant and defend the title to such property
against the claims of all persons or parties.
2.2 Taxes and Fees. Grantor shall pay before they
become delinquent all taxes, general and special assessments,
insurance premiums, permit fees, inspection fees, license fees,
water and sewer charges, franchise fees and equipment rents
against it or the Mortgaged Property, and Grantor, immediately
upon request of the Beneficiary, shall submit to the Beneficiary
receipts evidencing said payments, and if Grantor fails to pay
such taxes, assessments, premiums, fees, charges or rents, the
Beneficiary may pay them, together with all costs and penalties
thereon, at Grantor's expense; provided, that Grantor may in good
faith, in lieu of paying such taxes, assessments, premiums and
fees before they become delinquent and payable, by appropriate
proceedings, contest the validity thereof as provided in the
Trust Indenture.
2.3 Reimbursement. Grantor agrees that if it shall
fail to pay when due any tax, assessment or charge levied or
assessed against the Mortgaged Property or any utility charge,
whether public or private, or any insurance premium or if it
shall fail to procure the insurance coverage and deliver the
insurance certificates required hereunder, or if it shall fail to
pay any other charge, fee or other payment described in Section
2.2, 2.6, 2.7, 2.8 or 3.9 or in the acquisition or maintenance of
such insurance as may be required or desirable, then the
Beneficiary, at its option, may pay or procure the same. Grantor
shall reimburse the Beneficiary upon demand for any sums of money
paid by the Beneficiary pursuant to this Section and all such
sums shall be a part of the Obligations and shall be secured
hereby.
2.4 Additional Documents. Grantor agrees to execute
and deliver or cause to be executed and delivered to the
Beneficiary, concurrently with the execution of this Deed of
Trust and upon the request of the Beneficiary from time to time
hereafter, all financing statements, consents and other documents
reasonably required to perfect and maintain the security interest
created hereby. Grantor hereby irrevocably (as long as the
Obligations remain unpaid) makes, constitutes and appoints the
Beneficiary as the true and lawful attorney of Grantor to sign
the name of Grantor on any financing statement, continuation of
financing statement or similar document required to perfect or
continue such security interest.
2.5 Hold Harmless. Without in any way limiting
Grantor's obligations under the Trust Indenture, Grantor hereby
agrees to defend, at its own cost and expense, indemnify and hold
the Beneficiary and the Trustee harmless from, any proceeding or
claim, except those based solely on the gross negligence or
willful misconduct of the Beneficiary or the Trustee, affecting
the Mortgaged Property. All costs and expenses incurred by the
Beneficiary or the Trustee in protecting its interest hereunder,
including all court costs and reasonable attorneys' fees, shall
be borne by Grantor and any such amounts paid by the Beneficiary
or the Trustee shall be due and payable from Grantor to the
Beneficiary or the Trustee upon written demand, shall be a part
of the Obligations and shall be secured hereby. To the extent
this paragraph is in conflict with, or inconsistent with, any
provision in the Trust Indenture, the Trust Indenture shall
govern and control. The provisions of this paragraph shall
survive the payment in full of the Obligations and the release of
this Deed of Trust as to events occurring and causes of action
arising before such payment and release.
2.6 Recording and Filing. Grantor shall cause this
instrument and all amendments, supplements and extensions thereto
and substitutions therefor and financing statements relating
thereto to be recorded, filed, re-recorded and re-filed in such
manner and in such places as the Beneficiary shall reasonably
request, and shall pay all such recording, filing, re-recording
and re-filing fees, title insurance premiums and other charges.
2.7 Payment of Fees. Grantor shall pay all appraisal
fees, inspection fees, recording and filing fees, taxes,
brokerage fees and commissions, abstract fees, title policy fees,
survey fees, uniform commercial code search fees, escrow fees,
reasonable attorneys' fees actually incurred and all other costs
and expenses of every character reasonably incurred by Grantor or
the Beneficiary in connection with the execution and delivery of
this Deed of Trust or otherwise attributable to Grantor as owner
of the Mortgaged Property, and shall reimburse, indemnify and
hold harmless the Beneficiary for all such costs and expenses
reasonably incurred by it.
2.8 Leases and Other Agreements. Without first
obtaining on each occasion the written approval of the
Beneficiary, which approval shall not be unreasonably withheld or
delayed, Grantor shall not, except as expressly permitted by the
Trust Indenture, cancel, surrender or modify or permit the
cancellation of any lease (including any equipment lease), rental
agreement, management contract, franchise agreement, construction
contract, technical services agreement or other contract, license
or permit now or hereafter affecting the Mortgaged Property, or
modify any of said instruments, or accept or permit to be made,
any prepayment of any installment or rent or fees thereunder
except to the extent permitted in Section 2.9 hereof. Except as
expressly permitted by the Trust Indenture, Grantor shall
faithfully keep and perform, or cause to be kept and performed,
all of the covenants, conditions and agreements contained in each
of said instruments, now or hereafter existing, on the part of
Grantor to be kept and performed (including performance of all
covenants to be performed under any and all leases of the
Mortgaged Property or any part thereof) and shall at all times do
all things necessary and appropriate to compel performance by
each other party to said instruments of all obligations,
covenants and agreements by such other party to be performed
thereunder. Upon demand Grantor shall furnish the Beneficiary
with copies of any lease of the Mortgaged Property or any part
thereof or any other instrument or agreement described in this
Section.
2.9 Prepayment of Rent. Grantor, with respect to the
Subleases (hereinafter defined), shall not accept any prepayment
of rent or installments of rent for more than one month in
advance without the prior written consent of the Beneficiary.
2.10 Maintenance and Modification of Mortgaged
Property. The Trustee and the Beneficiary shall not be under any
obligation to operate, maintain or repair the Mortgaged Property.
Grantor shall abstain from and shall not permit the commission of
waste in or about the Mortgaged Property and, except as provided
in the Trust Indenture, shall maintain the Mortgaged Property in
good condition and repair, reasonable wear and tear excepted
until payment and performance of the Obligations. Grantor may
make, also at its own expense, from time to time any additions,
modifications or improvements to the Mortgaged Property in
accordance with the terms of the Trust Indenture. All such
additions, modifications and improvements so made by Grantor
within the boundaries of the Premises shall become a part of the
Mortgaged Property.
2.11 Identity of Grantor. Grantor hereby acknowledges
to the Beneficiary that (i) the identity of Grantor and the
expertise available to Grantor were and continue to be material
circumstances upon which the Beneficiary has relied in connection
with, and which constitute valuable consideration to the
Beneficiary for, the entering into by the Beneficiary of the
transactions described in the Trust Indenture and (ii) any change
in such identity or expertise could materially impair or
jeopardize the security for the payment of the Obligations.
Grantor therefore covenants and agrees with the Beneficiary that
Grantor shall not sell, transfer, convey, mortgage, encumber,
lease or otherwise dispose of the Mortgaged Property, the Rents
or the Intangible Personalty or any part thereof or any interest
therein or engage in subordinate financing with respect thereto
during the term of this Deed of Trust without the prior written
consent of the Beneficiary except as provided in the Trust
Indenture.
2.12 Compliance with Law. The Mortgaged Property, and
the use thereof by Grantor, shall comply in all material respects
with all laws, rules, ordinances, building codes, regulations,
covenants, conditions, restrictions, orders and decrees of any
governmental authority or court applicable to Grantor, or the
Mortgaged Property and its use, and Grantor shall pay all fees or
charges of any kind in connection therewith. Grantor shall not
use or occupy or allow the use or occupancy of the Mortgaged
Property in any manner which violates any applicable law, rule,
regulation or order or which constitutes a public or private
nuisance or which makes void, voidable or cancellable any
insurance then in force with respect thereto. Grantor shall not
cause or permit the lien of this Deed of Trust to be impaired in
any way.
2.13 Inspection. Grantor shall permit the Beneficiary
(and others as permitted by the Trust Indenture) at all
reasonable times to enter and pass through or over the Mortgaged
Property for the purpose of inspecting the same or the Facility.
2.14 Release and Waivers. Grantor agrees that no
release by the Beneficiary of any of Grantor's successors in
title from liability on the Obligations, no release by the
Beneficiary of any portion of the Mortgaged Property, the Rents
or the Intangible Personalty, no subordination of lien, no
forbearance on the part of the Beneficiary to collect on the
Obligations, or any part thereof, no waiver of any right granted
or remedy available to the Beneficiary and no action taken or not
taken by the Beneficiary shall in any way diminish Grantor's
obligation to the Beneficiary or have the effect of releasing
Grantor, or any successor to Grantor, from full responsibility to
the Beneficiary for the complete discharge of the Trust Indenture
or any other Project Document.
2.15 Insurance. Grantor shall maintain insurance on
the Mortgaged Property against such risks, in such amounts, with
such companies and in such form as required by the Trust
Indenture. In case of loss, the Beneficiary shall be entitled to
receive and retain the proceeds of the insurance policies and
apply the same as provided in the Trust Indenture. If any loss
shall occur at any time when Grantor shall be in default in the
performance of this covenant, the Beneficiary shall be entitled
to the benefit of all insurance held by or for Grantor, to the
same extent as if it had been made payable to the Beneficiary,
and upon foreclosure hereunder the Beneficiary shall become the
owner thereof.
2.16 Eminent Domain. Except as may be required by
applicable law, all proceeds of any condemnation, eminent domain
or similar taking, whether by public, quasi-public or private
entity, shall be distributed according to the Trust Indenture.
2.17 No Hazardous Material. Grantor shall not cause
or permit any chemical, pollutant, contaminant, waste, toxic
substance, petroleum or petroleum product (hereafter "Hazardous
Material") to be brought upon, stored or used in or about the
Mortgaged Property except for such Hazardous Material as is
necessary to Grantor's operation of the Facility. Any Hazardous
Material permitted on the Mortgaged Property and all containers
therefor shall be used, stored and disposed of in a manner that
complies with all Laws applicable to such Hazardous Material.
Grantor shall not discharge, leak or emit, or permit to be
discharged, leaked or emitted, any Hazardous Material into the
environment where such discharge, leak or emission is in
violation of any Environmental Law, could materially adversely
affect the Mortgaged Property or Grantor's use thereof, could
impose a material liability on Grantor or the Beneficiary or
could jeopardize the interest of the Beneficiary in the Mortgaged
Property under the Collateral Documents.
2.18 Ground Lease. Grantor represents, warrants,
covenants and agrees as follows:
(a) The Ground Lease is in full force and
effect, unmodified by any writing or otherwise, except as
indicated herein;
(b) All rent, additional rent and/or other
charges reserved in or payable under the Ground Lease have
been paid to the extent they are payable on or before the
date hereof;
(c) Grantor enjoys the quiet and peaceful
possession of the Leasehold Premises;
(d) Grantor is not in default under any of the
terms of the Ground Lease and there are no circumstances
which, with the passage of time or the giving of notice or
both, would constitute a default under the Ground Lease;
(e) To the best knowledge of Grantor, the
landlord under the Ground Lease is not in default under any
of the terms of the Ground Lease on its part to be observed
or performed;
(f) Grantor has delivered to the Beneficiary a
true, accurate and complete copy of the Ground Lease and all
amendments, modifications and supplements thereto;
(g) Grantor shall promptly and faithfully pay
all rent and other sums due and payable under the Ground
Lease and shall observe, perform and otherwise comply with
all the terms, covenants and provisions of the Ground Lease
(including, without limitation, the giving of notice to the
landlord under the Ground Lease regarding the nature and
existence of the lien of this Deed of Trust and the identity
of the Beneficiary) on Grantor's part to be paid, observed,
performed and complied with, at periods or within the times
to cure provided therein;
(h) Grantor shall not do, permit, suffer or
refrain from doing anything as a result of which there could
be a default under or breach of any of the terms, covenants
or provisions of the Ground Lease or which could constitute
grounds for termination of the Ground Lease and shall do all
things necessary to preserve and keep unimpaired its rights,
powers and privileges under the Ground Lease and to prevent
any termination of the Ground Lease;
(i) Grantor shall not terminate (including a
termination pursuant to the express provisions thereof),
cancel, surrender (including, without limitation, any
election by Grantor not to remain in possession of the
property demised by the Ground Lease in case the Ground
Lease shall be rejected, terminated or annulled by any
trustee appointed for the landlord's assets in debtor relief
proceedings), modify, elect any option, including, without
limitation, any option not to continue the Ground Lease for
a renewal term, amend or in any way alter or permit the
alteration of any of the terms, covenants or provisions of
the Ground Lease, or suffer to exist any such termination or
alteration, without the prior written consent of the
Beneficiary, all of such rights being hereby assigned to the
Beneficiary as further collateral security for the
Obligations secured hereby, and any action taken by Grantor
in violation of such agreement shall be null and void and of
no force or effect whatsoever;
(j) Grantor shall not waive, excuse or
discharge any of the obligations and agreements of the
landlord under the Ground Lease or subordinate or consent to
the subordination of the Ground Lease to any mortgage or
deed of trust on any party's interest in the property
demised by the Ground Lease or consent to any restriction,
covenant or agreement affecting the leasehold estate created
by the Ground Lease without the prior written consent of the
Beneficiary, which consent shall be given only in the
reasonable discretion of the Beneficiary, all of such rights
being hereby assigned to the Beneficiary as further
collateral security for the Obligations secured hereby, so
that any action taken by Grantor in violation of such
agreement shall be null and void and of no force or effect
whatsoever and Grantor shall enforce the obligations of the
landlord under the Ground Lease to the end that Grantor may
enjoy all of the rights granted to it under the Ground
Lease;
(k) Grantor shall immediately notify the
Beneficiary, in writing, of any default by Grantor in the
observance or performance of any of the terms, covenants and
conditions to be observed or performed by Grantor under the
Ground Lease or of any notice of any such default received
by Grantor under the Ground Lease or other notice asserting
lack of compliance with the Ground Lease, or any notice from
any party of termination or purported termination thereof,
without giving effect to any grace periods or times to cure,
and shall promptly deliver to the Beneficiary copies of each
such notice of default or notice of termination and all
other notices, communications, plans, specifications and
other similar instruments received or delivered by Grantor
in connection with the Ground Lease; and
(l) Grantor shall furnish to the Beneficiary
such information and evidence as the Beneficiary may
reasonably require concerning the due observance,
performance and compliance with the terms, covenants and
provisions of the Ground Lease.
In the event of any default in the observance or
performance of any of the terms, covenants or conditions to be
observed or performed under the Ground Lease, the Beneficiary
may, at its option and without notice and without any obligation
so to do, cause the default or defaults to be remedied and
otherwise exercise any and all of the rights of Grantor under the
Ground Lease in the name of and on behalf of Grantor.
So long as the Obligations shall remain unpaid, unless
the Beneficiary shall otherwise consent, the fee title and the
leasehold estate in the property demised by the Ground Lease
shall not merge but shall always be kept separate and distinct,
notwithstanding the union of said estates in any of the landlord
under the Ground Lease, the Beneficiary, Grantor or any third
party, whether by purchase or otherwise.
2.19 Estoppel Certificate. Grantor, within ten (10)
days after the written request by the Beneficiary and at
Grantor's expense, shall furnish the Beneficiary or such other
person or persons as the Beneficiary shall designate with a
statement, duly acknowledged and certified, (i) setting forth the
amount of the indebtedness which Grantor acknowledges to be due
on the Obligations and under this Deed of Trust and the defenses,
offsets or counterclaims thereto claimed or asserted by Grantor,
if any (and, if there are any defenses, offsets or counterclaims,
setting them forth in reasonable detail and describing the basis
therefor in reasonable detail), (ii) setting forth any
obligations to be paid or performed hereunder and the then state
of facts relative to the condition of the Mortgaged Property,
and/or (iii) stating that the Ground Lease is unmodified since
the date of this Deed of Trust and in full force and effect and
that Grantor has no defenses, offsets or counterclaims against
its obligations under the Ground Lease (or, if there have been
any modifications, that the same is in full force and effect as
modified and stating the modifications and, if there are any
defenses, offsets or counterclaims, setting them forth in
reasonable detail), the dates to which the rent and other charges
under the Ground Lease have been paid and a statement that the
landlord is not in default thereunder (or if in default, the
nature of such default, in reasonable detail). In the event that
Grantor fails to give the Beneficiary satisfactory evidence of
the payment of all basic rent, additional rent and other charges
required to be paid by Grantor under the Ground Lease within said
10-day period, the Beneficiary may require Grantor to pay to the
Beneficiary, together with and in addition to any installments of
principal and interest required to be paid under the Trust
Indenture, a sum equal to all basic rent, additional rent and
other charges next due under the Ground Lease at least five (5)
Business Days prior to the date on which such amounts shall be
due and payable, which sums, to the extent received, shall be
held without interest and applied by the Beneficiary to the
payment of such basic rent, additional rent and other charges, as
the same become due and payable.
ARTICLE III
ASSIGNMENT OF RENTS AND LEASES
3.1 Assignment of Rents, Profits, Etc. All of the
rents, royalties, bonuses, issues, profits, revenue, income and
other benefits derived from the Mortgaged Property or arising
from the use or enjoyment of any portion thereof or from any
sublease or agreement pertaining thereto and liquidated damages
following default under such subleases, and all proceeds payable
under any policy of insurance covering loss of rents resulting
from untenantability caused by damage to any part of the
Mortgaged Property, together with any and all rights that Grantor
may have against any tenant under such subleases or any
subtenants or occupants of any part of the Mortgaged Property
(the "Rents"), are hereby absolutely and unconditionally assigned
to the Beneficiary to be applied by the Beneficiary in payment of
the Obligations. Notwithstanding any provision of this Deed of
Trust or any other Project Document which might be construed to
the contrary, the assignment in this paragraph is an absolute
assignment and not merely a security interest. However, the
Beneficiary's rights as to the assignment shall be exercised only
upon the occurrence of an Event of Default (as defined in Section
4.1 hereof). Prior to an Event of Default, Grantor shall have a
license to collect and receive all Rents as trustee for the
benefit of the Beneficiary and Grantor and Grantor shall apply
the funds so collected first to the payment of the Obligations as
the same become due in such manner as the Beneficiary elects and
thereafter to the account of Grantor.
3.2 Assignment of Subleases. Grantor hereby assigns
to the Beneficiary all existing and future leases, including
subleases thereof, and any and all extensions, renewals,
modifications and replacements thereof, upon any part of the
Mortgaged Property (the "Subleases"). Grantor hereby further
assigns to the Beneficiary all guaranties of tenants' performance
under the Subleases. Prior to an Event of Default, Grantor shall
have the right, without joinder of the Beneficiary, to enforce
the Subleases, unless the Beneficiary directs otherwise.
3.3 Warranties Concerning Subleases and Rents.
Grantor represents and warrants that:
(a) Grantor has good title to the Subleases and
Rents hereby assigned, if any, and authority to assign such
Subleases and Rents, and no other person or entity has any
right, title or interest therein;
(b) All existing Subleases are valid,
unmodified and in full force and effect, except as indicated
herein, and no default exists thereunder;
(c) Except as provided herein, no Rents have
been or shall be assigned, mortgaged or pledged;
(d) No Rents have been or shall be waived,
released, discounted, set off or compromised; and
(e) Except as indicated in the Subleases,
Grantor has not received any funds or deposits from any
tenant for which credit has not already been made on account
of accrued Rents.
3.4 Grantor's Covenants of Performance. Grantor
covenants to:
(a) Perform all of its obligations under the
Subleases and give prompt notice to the Beneficiary of any
failure to do so;
(b) Give immediate notice to the Beneficiary of
any notice Grantor receives from any tenant or subtenant
under any Subleases, specifying any claimed default by any
party under such Subleases;
(c) Enforce the tenant's obligations under the
Subleases;
(d) Defend, at Grantor's expense, any
proceeding pertaining to the Subleases, including, if the
Beneficiary so requests, any such proceeding to which the
Beneficiary is a party; and
(e) Neither create nor permit any encumbrance
upon its interest as sublessor of the Subleases, except this
Deed of Trust and any other encumbrances permitted by this
Deed of Trust, the Trust Indenture or the other Project
Documents.
3.5 Prior Approval for Actions Affecting Subleases.
Grantor shall not without the prior written consent of the
Beneficiary:
(a) Receive or collect Rents more than one
month in advance;
(b) Encumber or assign future Rents;
(c) Waive or release any obligation of any
tenant under the Subleases;
(d) Cancel, terminate or modify any of the
Subleases, cause or permit any cancellation, termination or
surrender of any of the Subleases, or commence any
proceeding for dispossession of any tenant under any of the
Subleases;
(e) Renew or extend any of the Subleases,
except pursuant to terms in existing Subleases;
(f) Permit any assignment of the Subleases or
any subletting thereunder; or
(g) Enter into any Sublease.
3.6 Rejection of Leases. Grantor agrees that no
settlement for damages for termination of any of the Subleases
under the Bankruptcy Code, or under any other federal, state or
local statute, shall be made without the prior written consent of
the Beneficiary, and any check in payment of such damages shall
be made payable to both Grantor and the Beneficiary. Grantor
hereby assigns any such payment to the Beneficiary to be applied
to the Obligations in accordance with the terms of the Trust
Indenture and agrees to endorse any check for such payment to the
order of the Beneficiary.
3.7 Beneficiary in Possession. The Beneficiary's
acceptance of this assignment shall not, prior to entry upon and
taking possession of the Mortgaged Property by the Beneficiary,
be deemed to constitute the Beneficiary a "mortgagee in
possession" nor obligate the Beneficiary to appear in or defend
any proceeding relating to any of the Subleases or to the
Mortgaged Property, to take any action hereunder, expend any
money, incur any expenses or perform any obligation for any
deposits delivered to Grantor by any lessee and not delivered to
the Beneficiary. The Beneficiary shall not be liable for any
injury or damage to person or property in or about the Mortgaged
Property.
3.8 Appointment of Attorney. Grantor hereby appoints
the Beneficiary its attorney-in-fact, coupled with an interest,
empowering the Beneficiary to subordinate any Subleases to this
Deed of Trust.
3.9 Indemnification. Without limiting Grantor's
obligations under Section 2.5 hereof and in addition to such
obligations, unless attributable solely to the gross negligence
or willful misconduct of the Beneficiary, Grantor hereby agrees
to indemnify and hold the Beneficiary harmless from all
liability, damage or expense incurred by the Beneficiary from any
claims under the Subleases, including, without limitation, claims
by tenants for security deposits or for rental payments more than
one (1) month in advance and not delivered to the Beneficiary.
All amounts indemnified against hereunder, including reasonable
attorneys' fees, if paid by the Beneficiary, shall be payable by
Grantor immediately upon demand and shall be secured hereby. To
the extent this paragraph is in conflict with, or inconsistent
with, any provision in the Trust Indenture, the Trust Indenture
shall govern and control.
3.10 Records. Upon written request by the
Beneficiary, Grantor shall deliver to the Beneficiary executed
originals (or certified copies) of all Subleases and copies of
all records relating thereto.
3.11 Merger. There shall be no merger of the
leasehold estates created by the Subleases with the leasehold
estate created by the Ground Lease without the prior written
consent of the Beneficiary.
3.12 Right to Rely. Grantor hereby authorizes and
directs the tenants under the Subleases to pay Rents to the
Beneficiary upon written demand by the Beneficiary without
further consent of Grantor, and the tenants may rely upon any
written statement delivered by the Beneficiary to the tenants.
Any such payment to the Beneficiary shall constitute payment to
Grantor under the Subleases.
ARTICLE IV
EVENTS OF DEFAULT
4.1 Events of Default. An "Event of Default" shall be
the occurrence or existence of any of the events or conditions
described in the subsequent sections of this Article IV.
4.2 Trust Indenture; Intercreditor Agreement. The
occurrence of an "Event of Default", as defined in the Trust
Indenture, or a "Trigger Event", as defined in the Intercreditor
Agreement, shall constitute an Event of Default hereunder.
4.3 Encroachments. The appearance on any survey
required under the Trust Indenture of easements or encroachments
which have occurred without the prior written approval of the
Beneficiary. The Beneficiary acknowledges that the Permitted
Encumbrances have occurred with the prior written approval of the
Beneficiary.
ARTICLE V
FORECLOSURE
5.1 Foreclosure. Upon the occurrence and during the
continuance of any Event of Default (including, without
limitation, the failure to pay the Obligations in full at any
stated or accelerated maturity), then, in addition to any other
rights or remedies which the Beneficiary, the Indenture Trustee
or the Secured Parties may have under this Deed of Trust, the
other Project Documents or applicable law, the Beneficiary may
direct the Trustee to foreclose the lien of this Deed of Trust
pursuant to the power of sale hereby granted or by judicial
proceeding.
5.2 Power of Sale. The Trustee is hereby granted a
power of sale and may sell the Mortgaged Property (together with
the Rents and Intangible Personalty), at public auction for cash,
or such part or parts thereof or interests therein as the
Beneficiary may select, after first having given such notice of
hearing as to commencement of foreclosure proceedings and
obtained such findings or leave of court as then may be required
by North Carolina law, and then having given such notice and
advertised the time and place of such sale in such manner as then
may be provided by North Carolina law, and upon such sale and any
resale and upon compliance with the North Carolina law then
relating to foreclosure proceedings, to convey title to the
purchaser. The Beneficiary shall be entitled to bid for the
Mortgaged Property at such sale. In the event the Trustee is
prohibited from foreclosing the lien of this Deed of Trust by
exercising the power of sale granted herein under the provisions
of Article 2A of Chapter 45, North Carolina General Statutes, as
amended from time to time, the Trustee may proceed to foreclose
under the judicial sale provisions of Article 29A of Chapter 1,
North Carolina General Statutes. Each legal, equitable or
contractual right, power or remedy of the Trustee now or
hereafter provided herein or by statute or otherwise shall be
cumulative and concurrent and shall be in addition to every other
right, power and remedy, and the exercise or beginning of the
exercise by the Trustee of any one or more of such rights, powers
and remedies shall not preclude the simultaneous or later
exercise of any or all such other rights, powers and remedies.
5.3 Proceeds of Sale. Following a foreclosure sale
and expiration of the time for submitting any upset bid, the
Trustee shall deliver to the purchaser the Trustee's assignment
of lease and/or xxxx of sale conveying the property so sold
without any covenant or warranty, expressed or implied. The
recitals in the Trustee's assignment of lease and/or xxxx of sale
shall be prima facie evidence of the statements made therein.
The Trustee shall apply the proceeds of such sale pursuant to
Section 45-21.31, North Carolina General Statutes.
5.4 Trustee's Fee. If a foreclosure proceeding is
commenced by the Trustee but terminated prior to its completion,
the Trustee's fee shall be reasonable but (a) not more than the
lesser of one percent (1%) of the Obligations or ten thousand
dollars ($10,000.000) if the termination occurs prior to the
foreclosure hearing and (b) not more than the lesser of two
percent (2%) of the Obligations or ten thousand dollars
($10,000.00) if the termination occurs after the foreclosure
hearing.
ARTICLE VI
ADDITIONAL RIGHTS AND REMEDIES OF THE BENEFICIARY
6.1 Rights Upon an Event of Default. Upon the
occurrence of an Event of Default, the Beneficiary, immediately
and without additional notice and without liability therefor to
Grantor, except for its own gross negligence or willful
misconduct, shall have the right (in addition to its rights under
the other Project Documents and any other right or remedy of the
Beneficiary), but not the obligation, to do or cause to be done
any or all of the following: (a) take physical possession of the
Mortgaged Property; (b) exercise its right to collect the Rents;
(c) enter into contracts for the completion, repair and
maintenance of the Improvements; (d) expend the Loan or other
funds and any rents, income and profits derived from the
Mortgaged Property for payment of any taxes, insurance premiums,
assessments and charges for the completion, repair and
maintenance of the Improvements, the preservation of the lien of
this Deed of Trust and the satisfaction and fulfillment of any
liabilities or obligations of Grantor arising out of or in any
way connected with the construction of the Improvements, whether
or not such liabilities and obligations in any way affect, or may
affect, the lien of this Deed of Trust; (e) enter into leases
demising the Mortgaged Property or any part thereof; (f) take
such steps to protect and enforce the specific performance of any
covenant, condition or agreement in this Deed of Trust, the Trust
Indenture or the other Project Documents or to aid the execution
of any power herein granted; and (g) generally, supervise, manage
and contract with reference to the Mortgaged Property as if the
Beneficiary were the equitable owner of the Mortgaged Property.
Notwithstanding the occurrence of an Event of Default or
acceleration of the Obligations, the Beneficiary shall continue
to have the right, but not the obligation, to pay money, whether
or not Loan funds, for the purposes described in Sections 2.2,
2.5 and 2.7 and in the maintenance or acquisition of required or
desirable insurance coverage, and all such sums and interest
thereon shall be added to the Obligations and shall be secured
hereby. Grantor also agrees that any of the foregoing rights and
remedies of the Beneficiary may be exercised at any time
independently of the exercise of any other such rights and
remedies and the Beneficiary may continue to exercise any or all
such rights and remedies until the Event(s) of Default of Grantor
are cured with the consent of the Beneficiary or until
foreclosure and the conveyance of the Mortgaged Property to the
high bidder or until the Obligations are otherwise satisfied or
paid in full.
6.2 Appointment of Receiver. Upon the occurrence of
an Event of Default, Grantor agrees that the Beneficiary shall be
entitled, without additional notice and without regard to the
adequacy of any security for the Obligations or the solvency of
any party bound for its payment, to seek the appointment of a
receiver to take possession of and to operate the Mortgaged
Property, and to collect the rents, issues, profits and income
therefrom, all expenses of which shall be added to the
Obligations and secured hereby. If such receiver should be
appointed or if there should be a sale of the Mortgaged Property,
as provided herein, Grantor or any person in possession of the
Mortgaged Property as tenant or otherwise shall become a tenant
at will of the receiver or of the purchaser and may be removed by
a writ of ejectment, summary ejectment or other lawful remedy.
6.3 Environmental Investigation and Assessment. Upon
the occurrence of an Event of Default, Grantor agrees that the
Beneficiary shall be entitled, without additional notice, to
cause an environmental investigation and assessment to be
performed for the purpose of determining whether there exists on
the Mortgaged Property any environmental condition which could
result in any liability to the owner or occupier of such
property.
6.4 Waivers. No waiver of any Event of Default shall
at any time thereafter be held to be a waiver of any right of the
Beneficiary stated anywhere in this Deed of Trust, the Trust
Indenture or any other Project Document, nor shall any waiver of
a prior Event of Default operate to waive any subsequent Event(s)
of Default. All remedies provided in this Deed of Trust, in the
Trust Indenture and in the other Project Documents are cumulative
and may, at the election of the Beneficiary, be exercised
alternatively, successively or in any manner and are in addition
to any other rights provided by law.
ARTICLE VII
GENERAL CONDITIONS
7.1 Substitution of Trustee. If, for any reason, with
or without cause, the Beneficiary shall elect to substitute for
the Trustee (or for any successor to the Trustee), the
Beneficiary shall have the right to appoint successor Trustee(s)
by duly acknowledged written instruments recorded in the Public
Registries of Halifax County and Northampton County, North
Carolina, and each new Trustee immediately upon recordation of
the instrument so appointing him or her shall become successor in
title to the Mortgaged Property for the uses and purposes of this
Deed of Trust, with all the powers, duties and obligations
conferred on the Trustee in the same manner and to the same
effect as though he or she were named herein as the Trustee.
7.2 Terms. The singular used herein shall be deemed
to include the plural; the masculine deemed to include the
feminine and neuter; and the named parties deemed to include
their permitted successors and assigns.
7.3 Notices. Any request, demand, authorization,
direction, notice, consent, waiver or other document provided or
permitted by this Deed of Trust to be made upon, given or
furnished to, or filed with,
(a) the Beneficiary shall be sufficient for every
purpose hereunder if made, given, furnished or filed in
writing to or with the Beneficiary at its Corporate
Trust Xxxxxx xx Xxxxxxxxx Xxxxx Xxxxxxxxxxxxxx,
XXX00000, 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000,
Ref.: Panda-Xxxxxxxx 1996, or telecopied to such
Corporate Trust Office at (000) 000-0000, or at any
other address or telecopy number as may be designated
by the Beneficiary to the other parties hereto, or
(b) Grantor shall be sufficient for every purpose
hereunder if in writing and mailed by registered or
certified mail with return receipt requested and
postage prepaid, to Grantor addressed to it at its
principal office at 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, or telecopied to such
principal office at (000) 000-0000, Attention: Chief
Financial Officer, or at any other address or telecopy
number previously furnished in writing to the other
parties hereto, or
(c) the Trustee shall be sufficient for every
purpose hereunder if in writing and mailed by
registered or certified mail with return receipt
requested and postage prepaid, to the Trustee addressed
to it at its office at Xxxxxxx Xxxxxxxxx Xxxxxxx &
Xxxxxxx, L.L.P., NationsBank Corporate Center, 000 X.
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, or telecopied to such principal office at
(000) 000-0000, or at any other address or telecopy
number previously furnished in writing to the other
parties hereto.
7.4 Greater Estate. In the event that Grantor is the
owner of a leasehold estate with respect to any portion of the
Mortgaged Property and, prior to the satisfaction of the
Obligations and the cancellation of this Deed of Trust of record,
Grantor obtains a fee estate in such portion of the Mortgaged
Property, Grantor shall immediately execute and deliver to the
Beneficiary in recordable form a deed of trust or such other
instrument as the Beneficiary may reasonably require to subject
such portion of the Mortgaged Property to the terms, provisions
and conditions of this Deed of Trust.
7.5 Imposition of Tax. In the event of the passage of
any state, federal, municipal or other governmental law, order,
rule or regulation, in any manner changing or modifying the laws
now in force governing the taxation of debts secured by deeds of
trust or the manner of collecting taxes so as to affect adversely
the Beneficiary, Grantor shall promptly pay any such tax on or
before the due date thereof.
7.6 Invalidation of Provisions. .Invalidation of any
one or more of the provisions of this Deed of Trust shall not
invalidate or affect in any way any of the other provisions
hereof, which shall remain in full force and effect.
7.7 Headings. The captions and headings herein are
inserted only as a matter of convenience and for reference and in
no way define, limit or describe the scope of this Deed of Trust
or the intent of any provision hereof.
7.8 GOVERNING LAW. THIS DEED OF TRUST SHALL BE
GOVERNED BY, ENFORCED AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NORTH CAROLINA AND THE LAWS OF THE UNITED STATES
APPLICABLE TO TRANSACTIONS IN THE STATE OF NORTH CAROLINA. THE
PARTIES HERETO AGREE THAT THE FOREGOING IS "BOLD-FACE" TYPE.
7.9 Controlling Agreement. Except as otherwise
provided in this Deed of Trust and except as otherwise provided
in the Trust Indenture or any other Project Document by specific
reference to the applicable provisions of this Deed of Trust, if
any provision in this Deed of Trust is in conflict with or
inconsistent with any provision in the Trust Indenture or any
Project Document, the provision in the Trust Indenture or such
Project Document, as the case may be, shall govern and control.
IN WITNESS WHEREOF, Grantor has caused this Deed of
Trust to be executed under seal by its duly authorized
representatives as of the above written date.
GRANTOR:
PANDA-XXXXXXXX, L.P.
(doing business in the
State of North Carolina
as Panda-Xxxxxxxx,
Limited Partnership) [SEAL]
ATTEST: By: PANDA - XXXXXXXX CORPORATION,
its general partner
By:
Name: Xxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Title: Chairman of the Board
President and Chief
Executive Officer
[CORPORATE SEAL]
STATE OF NEW YORK)
:ss:
COUNTY OF NEW YORK)
I, the undersigned Notary Public of the aforesaid State
and County, certify that Xxx X. Xxxxxxxxxx personally came before
me this day and acknowledged that s/he is the Assistant Secretary of
PANDA - XXXXXXXX CORPORATION, a Delaware corporation, the general
partner of PANDA-ROSEMARY, L.P., a Delaware limited partnership
(doing business in the State of North Carolina as Panda-Xxxxxxxx
Limited Partnership), and that, by authority duly given and as
the act of said corporation, the foregoing instrument was
executed in its name by its President, sealed with its
corporate seal, and attested by him/herself, as its
Assistant Secretary, all as the act of said limited partnership.
Witness my hand and notorial seal this the 31st day of
July, 1996.
Xxxxxx X. Xxxxx
Notary Public
No. 00-0000000
[SEAL]
My Commission Expires: 8/31/97
EXHIBIT A
(Description of the Fee Premises)
That certain tract or parcel of land lying and being situate
in Xxxxxxxx Xxxx Xxxxxxxx, Xxxxxxxxxxx Xxxxxx, Xxxxx
Xxxxxxxx, and more particularly described as follows:
BEGINNING at a point marked by a found one-inch iron pipe
located on the South edge of the right of way for NC.
Highway 48, said point also being the Northwest corner of
that certain 20.34 acre tract now or formerly owned by
Columbia Gas Transmission Corporation by Deed recorded in
Book 661, page 101, Northampton County Registry; THENCE
from said Beginning point and along the edge of the right of
way for NC. Highway 48, S 87 degrees 16' 36" E, 205.2 feet to a
point marked by a set one-half inch iron rod; THENCE
turning S 10 degrees 53' 15" W 283.7 feet to a point marked by a
set one-half inch iron rod; THENCE turning N 77 degrees 50' 27" W
208.8 feet to a point marked by a set one-half inch iron
rod; THENCE turning N 12 degrees 10' 00" E 250.0 feet to the point
of Beginning, and containing 1.26 acres, more or less, as
shown in survey by Xxxxx X. Xxxxxx, R.L.S., dated July 9,
1996, entitled "Panda-Xxxxxxxx Limited Partnership, Pleasant
Hill Station."
EXHIBIT B
(Description of the Leasehold Premises)
TRACT NO. 1
That certain tract or parcel of land lying and being situate
in the City of Roanoke Rapids, Halifax County, North
Carolina, and more particularly described as follows:
BEGINNING at a point located at the intersection of the
Northern edge of the 60 foot right of way for Xxxx 00xx
Xxxxxx and the Western edge of a 20 foot right of way for an
alley, said Beginning point being marked by a chiseled "X"
on a concrete slab; THENCE from said Beginning point N 63 degrees
30' W 219.78 feet to a railroad spike on the Eastern edge of
a 55 foot right of way for the spur track of CSX
Transportation, Inc.; THENCE along said 55 foot right of
way the following courses and distances: N 2 degrees 34' 31" E
364.30 feet, N 2 degrees 47' 00" E 100.00 feet, N 4 degrees 54' 00" E
50.00 feet, and N 7 degrees 11' 30" E 50.00 feet, N 9 degrees 33' 00" E
49.00 feet, and N 10 degrees 46' 10" E 36.26 feet to an iron pipe
located on the Southern edge of (undeveloped) 00xx Xxxxxx;
THENCE along the Southern edge of (undeveloped) 00xx Xxxxxx
right of way S 63 degrees 30' E 466.77 feet to an iron pipe located
at the intersection of the Southern edge of (undeveloped)
00xx Xxxxxx and the Western edge of the right of way for the
20 foot alley previously referred to herein; THENCE along
the Western edge of the 20 foot right of way for said alley
S 26 degrees 30' W 600.00 feet to the point of Beginning and
containing 4.83 acres, more or less, and being the property
shown on survey by Xxxxx X. Xxxxxx, R.L.S., dated January 8,
1992, and last updated July 10, 1996, entitled "Plat showing
Property Leased to Panda-Xxxxxxxx Limited Partnership."
TRACT NO. 2
That certain tract or parcel of land lying and being situate
in the City of Roanoke Rapids, Halifax County, North
Carolina, and more particularly described as follows:
BEGINNING at the Northwest corner of the intersection of
right of way for Xxxxxxx Xxxxxx xxx Xxxx 00xx Xxxxxx;
THENCE N 63 degrees 30' W 379.78 feet along the North right of way
line of Xxxx 00xx Xxxxxx to a railroad spike on the East
right of way line of CSX Transportation, Inc.; THENCE along
the Eastern right of way line of CSX Transportation, Inc. N
2 degrees 34' 31" E 364.30 feet to a point; THENCE in a Westerly
direction across the railroad right of way N 70 degrees 27' 11" W
85.68 feet to a point on the Western right of way line of
CSX Transportation, Inc., the same being the point of
Beginning for the tract of land hereinafter described;
THENCE along the Western right of way line of CSX
Transportation, Inc. S 23 degrees 16' 53" W 61.32 feet and S 30 degrees
11' 32" W 49.15 feet and S 34 degrees 14' 33" W 48.53 feet and S
38 degrees 48' 23" W 14.93 feet to an iron pipe at the Southeast
corner of the property herein described; THENCE a new made
line through the lands of the Xxxx Company parallel with and
150 feet North of 13th Street, N 63 degrees 30' 00" W 160.90 feet
to an iron pipe; THENCE another new made line through lands
of the Xxxx Company N 26 degrees 30' 00" E 175.00 feet to an iron
pipe; THENCE another new made line through lands of the
Xxxx Company S 67 degrees 49' 23" E 167.91 feet to an iron pipe on
the West right of way line of CSX Transportation, Inc.;
THENCE along and with the West right of way of CSX
Transportation, Inc. S 15 degrees 18' 14" W 15.00 feet to the point
of Beginning. Said tract of land containing 0.71 acres,
more or less, and being the property shown on survey by
Xxxxx X. Xxxxxx, R.L.S., dated January 8, 1992, and last
updated July 10, 1996, entitled "Plat showing Property
Leased to Panda-Xxxxxxxx Limited Partnership."
