EXHIBIT 10.8
Recording Requested By INDEXING INSTRUCTIONS:
And When Recorded Mail To: To the Chancery Clerk
of ▇▇▇ County, ▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Otterbourg, Steindler, Houston & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
REF: File #▇▇▇▇▇.▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇
[THIS SPACE RESERVED FOR RECORDER'S USE]
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND
LEASES AND FIXTURE FILING (MISSISSIPPI)
by and from
▇▇▇▇▇▇▇ FABRICS, INC.,
"GRANTOR"
to
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
"TRUSTEE"
for the benefit of
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS AGENT, IN SUCH CAPACITY
"SECURED PARTY"
executed on June 27, 2005 but effective as of June 29, 2005
(the "Effective Date")
THIS DEED OF TRUST IS PRESENTED FOR RECORDING IN ▇▇▇ COUNTY, MISSISSIPPI. THE
SECURED PARTY DESIRES THIS FIXTURE FILING TO BE INDEXED AGAINST THE RECORD OWNER
OF THE REAL ESTATE DESCRIBED HEREIN.
NOTE TO CLERK. This Deed of Trust secures any and all present and future
obligations of the Borrowers (including Grantor) under the Loan Agreement in the
aggregate principal amount of $110,000,000 executed and delivered outside the
State of Mississippi, which is due and payable on that date which is five (5)
years after the Effective Date hereof (unless sooner terminated pursuant to the
terms of the Loan Agreement) (the "Termination Date").
THIS DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT, FIXTURE FILING AND
FINANCING STATEMENT (as the same may from time to time be extended, spread,
split, consolidated, modified, restated and renewed, this "DEED OF TRUST")
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executed on June 27, 2005 but effective as of June 29, 2005 by ▇▇▇▇▇▇▇ FABRICS,
INC., a Delaware corporation, having its principal office located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("GRANTOR"), to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, having his
principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in his
capacity as Trustee for the benefit of WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association, in its capacity as Agent (together with any
successor agent appointed in accordance with the Loan Agreement (as hereinafter
defined), "AGENT") for the Lenders (as hereinafter defined) having an address at
Heritage Square II, Suite 1050, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (Agent,
together with its successors and assigns, "SECURED PARTY").
W I T N E S S E T H:
WHEREAS, Grantor and certain of its affiliates ("BORROWERS") and Guarantors (as
named in the Loan Agreement) have entered into that certain Loan and Security
Agreement, dated as of the Effective Date (such Loan and Security Agreement, as
it may be amended, modified, supplemented or amended and restated from time to
time, being the "LOAN AGREEMENT", a copy of which may be examined at reasonable
times at the office of Agent by persons who do or will hold an interest in the
Land (as hereinafter defined) or the Improvements (as hereinafter defined)),
with the Lenders (as defined therein) named therein, Wachovia Bank, National
Association as the issuer (in such capacity, the "ISSUING BANK") of certain
Letters of Credit (as defined therein) (such Lenders, the Issuing Bank and any
other Secured Parties that may now or hereafter be identified as Secured Parties
under the Loan Agreement being collectively the "LENDERS" and individually a
"LENDER"), Agent and Wachovia Capital Markets, LLC, as the sole lead arranger
and sole bookrunner; and
WHEREAS, pursuant to the Loan Agreement and subject to the terms and conditions
therein set forth, the Lenders have agreed to make Revolving Loans and to issue
certain Letters of Credit (as each such term is defined in the Loan Agreement)
from time to time from the date hereof until the Termination Date in the
aggregate amount not to exceed at any time $110,000,000, excluding advances made
to protect the lien of this Deed of Trust; and
WHEREAS, Borrowers (including Grantor) have agreed that, as a condition
precedent to the making of the Revolving Loans and the issuance of the Letters
of Credit, Grantor will further secure such indebtedness by the execution and
delivery of this Deed of Trust; and
WHEREAS, it has been agreed that the payment and performance of the Secured
Obligations (as hereinafter defined) shall be secured by a deed of trust,
assignment of rents, security agreement, fixture filing and financing statement,
as applicable, with respect to certain property as hereinafter identified;
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, to
secure the punctual payment by Grantor when due, whether at stated maturity, by
acceleration or otherwise, of the Secured Obligations and the performance and
observance of all other covenants, obligations and liabilities of Grantor under
this Deed of Trust, as the same may be extended, modified or renewed or
repledged, Grantor does hereby grant, bargain, sell, warrant, convey,
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alien, remise, release, assign, transfer, set over, deliver, confirm and convey
unto the Trustee, as trustee for the benefit of Secured Party, upon the terms
and conditions of this Deed of Trust, with power of sale and right of entry as
provided hereinbelow, each and all of the real properties described in the
Granting Clauses herein (which, together with all other property located therein
or described in the Granting Clauses herein, is hereinafter collectively called
the "TRUST PROPERTY").
GRANTING CLAUSES
All the estate, right, title and interest of Grantor in, to and under, or
derived from, its interest in the plots, pieces and parcels of land more
particularly described in Exhibit A hereto (the "LAND");
TOGETHER with the interests in the tenements, hereditaments, appurtenances and
all the estates and rights of Grantor in and to the Land;
TOGETHER with all of its interest in the buildings and improvements now or
hereafter located on the Land (hereinafter collectively referred to as the
"IMPROVEMENTS") and all of its right, title and interest, if any, of Grantor in
and to the streets, roads, sidewalks and alleys abutting the Land, and strips
and gores within or adjoining the Land, the air space and right to use said air
space above the Land and any transferable development or similar rights
appurtenant thereto, all rights of ingress and egress by motor vehicles to
parking facilities on or within the Land, all easements now or hereafter
affecting the Land, royalties and all rights appertaining to the use and
enjoyment of the Land, including alley, drainage, mineral, water, oil and gas
rights;
TOGETHER with all furniture, fixtures, equipment and other tangible property,
and all appurtenances and additions thereto and substitutions or replacements
thereof owned by Grantor and now or hereafter attached to the Premises (as
hereinafter defined) (hereinafter collectively referred to as the "FIXTURES");
TOGETHER with all property, tangible and intangible, and all additions thereto
and substitutions or replacements thereof owned by Grantor and now or
hereinafter contained in, or used in connection with the Premises or placed on
or in any part thereof though not attached thereto, to the extent the same
constitutes real property in the state in which the Trust Property is located
(all of the foregoing, including the items hereinafter enumerated, collectively
referred to as the "EQUIPMENT"), including all removable window and floor
coverings, furniture and furnishings, heating, lighting, plumbing, ventilating,
air conditioning, refrigerating, incinerating and elevator plants, cooking
facilities, vacuum cleaning systems, call systems, sprinkler systems and other
fire prevention and extinguishing apparatus and materials, motors, machinery,
pipes, appliances, equipment, fittings, fixtures and articles of personal
property now or hereafter attached to or used in or about the premises which are
or may be used in or related to the planning, development, financing, or
operation thereof (the Land, together with the Improvements and the Equipment,
are hereinafter collectively referred to as the "PREMISES");
TOGETHER with all leases, subleases, lettings and licenses of, and all other
contracts, bonds and agreements affecting the Premises or any part thereof now
or hereafter entered into, and all amendments, modifications, supplements,
additions, extensions and renewals thereof (all of the
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foregoing hereinafter collectively referred to as the "LEASES"), and all right,
title and interest of Grantor thereunder, including cash and securities
deposited thereunder (as down payments, security deposits or otherwise), the
right to receive and collect the rents, security deposits, income, fees,
proceeds, earnings, royalties, revenues, issues and profits payable thereunder
and the rights to enforce, whether at law or in equity or by any other means,
all provisions and options thereof or thereunder (all of the foregoing
hereinafter collectively referred to as the "RENTS") and the right to apply the
same to the payment and performance of the Secured Obligations;
TOGETHER with all rights (including, without limitation, trade marks, trade
names and symbols), dividends and/or claims of any kind whatsoever arising from
or used in connection with the Premises (including damage, secured, unsecured,
lien, priority and administration claims); together with the right to take any
action or file any papers or process in any court of competent jurisdiction,
which may in the opinion of Secured Party be necessary to preserve, protect, or
enforce such rights or claims, including the filing of any proof of claim in any
insolvency proceeding under any state, Federal or other laws and any rights,
claims or awards accruing to or to be paid to Grantor in its capacity as
landlord under any Lease (all of the foregoing hereinafter collectively referred
to as "RIGHTS AND CLAIMS");
TOGETHER with all other agreements, rights, written materials and intangible
personal property (whether now or in the future existing) arising in connection
with, derived from or otherwise relating to the Trust Property or any portion
thereof or the ownership, development, construction, use, management, operation,
occupancy, lease, sale or financing of the Trust Property or any portion
thereof, including: (i) permits, approvals, consents and other authorizations;
(ii) improvement plans and specifications and architectural drawings; (iii)
agreements with contractors, subcontractors and suppliers; (iv) warranties and
guaranties and (v) escrow proceeds, reserves, deposits, bonds, deferred
payments, refunds, rebates, discounts, cost savings and leases (all of the
foregoing hereinafter collectively referred to as "AGREEMENTS AND INTANGIBLES");
TOGETHER with all unearned premiums, accrued, accruing or to accrue under
insurance policies now or hereafter obtained by Grantor and relating to the
Premises and all proceeds of the conversion, voluntary or involuntary, of the
Premises into cash or liquidated claims, including proceeds of hazard and title
insurance and all awards and compensation heretofore and hereafter made to the
present and all subsequent owners of the Premises by any governmental or other
lawful authorities for the taking by eminent domain, condemnation or otherwise,
of all or any part of the Premises or any easement therein, including awards for
any change of grade of streets (collectively, "AWARDS"); and
TOGETHER with all right, title and interest of Grantor in and to all extensions,
improvements, betterments, renewals, substitutes and replacements of, and all
additions and appurtenances to, any of the foregoing hereafter acquired by, or
released to, Grantor or constructed, assembled or placed by Grantor on the
Premises and all conversions of the security constituted thereby, immediately
upon such acquisition, release, construction, assemblage, placement or
conversion, as the case may be, and in each such case, without any further deed
of trust, conveyance, assignment or other act by Grantor, all of which shall
become subject to the lien of this Deed of
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Trust as fully and completely, and with the same effect, as though now owned by
Grantor and specifically described herein,
GRANTOR HEREBY GRANTS TO TRUSTEE, AS TRUSTEE FOR THE BENEFIT OF THE
SECURED PARTY, ITS SUCCESSOR AND/OR ASSIGNS, a security interest in all
fixtures, rights in action and personal property described herein. This Deed of
Trust is a self-operative security agreement with respect to such property, even
though Grantor agrees to execute and deliver on demand such other security
agreements, financing statements and other instruments as Secured Party may
request in order to perfect its security interest or to impose the lien hereof
more specifically upon any of such property.
Without the necessity of any further act of Grantor or Trustee or Secured
Party, the lien of and security interest created by this Deed of Trust
automatically will extend to and include (i) any and all renewals, replacements,
substitutions, accessions, proceeds, products, additions or after-acquired
property for or to the Trust Property, and (ii) any and all monies, proceeds and
other property that from time to time, either by delivery to Grantor or by any
instrument (including this Deed of Trust), may be subjected to such lien and
security interest by Grantor or by anyone on behalf of Grantor, or with the
consent of Grantor, or which otherwise may come into the possession or otherwise
be subjected to the control of Trustee or Secured Party or Grantor pursuant to
this Deed of Trust or any associated financing agreement.
The Property and all of the foregoing items are collectively referred to as
either the "Property" or the "Trust Property".
TO HAVE AND TO HOLD the Trust Property unto Secured Party and its successors and
assigns, forever.
ARTICLE I
Certain Definitions
SECTION 1.01. Certain Definitions. Capitalized terms used herein and
not defined herein shall have the meanings given them in the Loan Agreement. As
used herein, the following terms shall have the meanings set forth opposite them
below:
"ACTION" has the meaning set forth in Section 8.10.
"AGENCY DOCUMENTS" has the meaning set forth in Section 8.13.
"AGENT" has the meaning set forth in the Preamble.
"AGREEMENTS AND INTANGIBLES" has the meaning set forth in the
Granting Clauses.
"AWARDS" has the meaning set forth in the Granting Clauses..
"BORROWERS" has the meaning set forth in the Recitals.
"DEED OF TRUST" has the meaning set forth in the Preamble.
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"DEFAULT RATE" has the meaning set forth in Section 3.04.
"EFFECTIVE DATE" has the meaning set forth in the Recitals.
"EQUIPMENT" has the meaning set forth in the Granting Clauses.
"FIXTURES" has the meaning set forth in the Granting Clauses.
"GRANTOR" has the meaning set forth in the Preamble.
"IMPOSITIONS" has the meaning set forth in Section 3.06.
"IMPROVEMENTS" has the meaning set forth in the Granting Clauses.
"ISSUING BANK" has the meaning set forth in the Recitals.
"LAND" has the meaning set forth in the Granting Clauses.
"LENDER" has the meaning set forth in the Recitals.
"LEASES" has the meaning set forth in the Granting Clauses.
"LOAN AGREEMENT" has the meaning set forth in the Recitals.
"MAXIMUM AMOUNT" has the meaning set forth in Section 2.02.
"NOTICE" has the meaning set forth in Section 8.03.
"PERMITTED LIENS AND CLAIMS" will mean those matters that are
Encumbrances pursuant to paragraph 9.8 of the Loan Agreement.
"PREMISES" has the meaning set forth in the Granting Clauses.
"RENTS" has the meaning set forth in the Granting Clauses.
"RIGHTS AND CLAIMS" has the meaning set forth in the Granting
Clauses.
"SECURED OBLIGATIONS" has the meaning set forth in Section 2.01.
"SECURED PARTY" has the meaning set forth in the Preamble.
"TERMINATION DATE" has the meaning set forth in the Recitals.
"TRUST PROPERTY" has the meaning set forth in the Recitals.
"UCC" has the meaning set forth in Section 6.02.
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ARTICLE II
Obligations Secured; Future Advances
SECTION 2.01. Obligations Secured This Deed of Trust is given for
the purpose of securing any and all present and future obligations of the
Grantor under the Loan Agreement and the other Financing Agreements, including,
without limitation, the Grantor's obligation under the Loan Agreement to pay the
Secured Obligations, which include, but not limited to the payment of all
obligations of every kind and character now or hereafter existing, whether
matured or unmatured, contingent or liquidated of Borrowers under the Loan
Agreement and the other Financing Agreements, including, without limitation, the
sum of all (a) principal, interest and other amounts owing under or evidenced or
secured by the Financing Agreements, (b) principal, interest, future or
additional advances and other amounts which may hereafter be loaned by Secured
Party or the other Secured Parties under or in connection with the Loan
Agreement or any of the other Financing Agreements for any purpose, whether
evidenced by a promissory note or other instrument which, by its terms, is
secured hereby, (c) obligations, indebtedness and liabilities of any nature now
or hereafter existing under or arising in connection with the Letters of Credit
and reimbursement obligations in respect thereof, together with interest and
other amounts payable with respect thereto, and all other indebtedness,
obligations, extensions of credit and other liabilities now or hereafter
existing of any kind of Grantor to Secured Party or any of the other Secured
Parties under documents which recite that they are intended to be secured by
this Deed of Trust and (d) the other Obligations (as such term is defined in the
Loan Agreement). The Loan Agreement contains a revolving credit facility which
permits Borrowers (including Grantor) to borrow certain principal amounts, repay
all or a portion of such principal amounts, and reborrow amounts previously paid
to the Lenders, all upon satisfaction of certain conditions stated in the Loan
Agreement. This Deed of Trust secures, among other things, all advances and
readvances under the revolving credit feature of the Loan Agreement. All of the
obligations described in this Section are collectively referred to as the
"SECURED OBLIGATIONS".
SECTION 2.02. Future Advances; Maximum Principal Amount; Limitation
on Secured Party's Recovery. It is agreed that this Deed of Trust shall also
secure such future or additional advances as may be made by Secured Party or any
of the other Secured Parties at its/their option to Borrowers for any purpose,
provided that all such advances are to be made within 20 years from the date of
this Deed of Trust, and provided further that the total amount of Secured
Obligations secured by this Deed of Trust may decrease or increase from time to
time, but the total unpaid Secured Obligations secured by this Deed of Trust at
any one time shall not exceed the maximum principal amount of $110,000,000 (the
"SECURED AMOUNT"), plus interest, and any disbursements made for the payment of
taxes, levies or insurance on the Trust Property with interest on such
disbursements.
SECTION 2.03. Reserved
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ARTICLE III
Representations, Warranties and Covenants of Grantor
SECTION 3.01. Payment of Secured Obligations. Grantor shall
punctually pay when due, and timely perform, the Secured Obligations, and will
perform and observe all of its obligations under the Financing Agreements.
SECTION 3.02. Warranty of Title. Grantor warrants that (a) it has
good and marketable title to the Trust Property subject only to the Permitted
Liens and Claims; (b) the Permitted Liens and Claims do not and are not
reasonably expected to materially adversely affect the use or operation of the
Premises for their present uses, or the value of the Premises on the date
hereof; (c) Grantor has and will continue to have full power and lawful
authority to encumber and convey the Trust Property as provided herein, subject
only to Permitted Liens and Claims; and (d) this Deed of Trust is and will
continue to remain a valid and enforceable first Deed of Trust lien on and
security interest in the Trust Property, subject only to Permitted Liens and
Claims. Grantor further covenants that it will preserve such title and will
forever warrant and defend the title to the Trust Property unto Secured Party
against all lawful claims whatsoever and will forever warrant and defend the
validity, enforceability and priority of the lien of this Deed of Trust against
the claims of all Persons whomsoever.
SECTION 3.03. Use. Grantor will use the Premises for substantially
the same use as in effect as of the date hereof and for no other use unless
consented to in writing by Secured Party.
SECTION 3.04. Insurance.
(a) Coverage. Grantor shall maintain (i) property insurance insuring
the Improvements now or hereafter constituting a part of the Trust Property
against damage by fire and the other hazards covered by a standard all-risk,
extended coverage insurance policy for one hundred percent (100%) of the "Full
Replacement Cost" thereof (which, unless Secured Party shall otherwise agree in
writing, shall mean the full repair and replacement value thereof without
reduction for depreciation or co-insurance), (ii) business interruption or
rental insurance in an amount adequate to cover continuing expenses during any
period of repairs or restoration which amount shall at least be equal to twelve
months' anticipated gross income from the Premises, and (iii) Commercial General
Liability Insurance in respect of the operation of the Trust Property as
required by the Financing Agreements. In addition, Secured Party may upon
instruction of the Required Lenders require Grantor to carry such other
insurance on the Trust Property in such amounts as may from time to time
reasonably be required by Secured Party, against insurable casualties including,
without limitation, the following types of insurance: flood (including surface
waters) if the Trust Property is located in an area identified by the Secretary
of Housing and Urban Development or any other official having jurisdiction as
having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968 and the Flood Disaster
Protection Act of 1973 (as the foregoing may be modified or amended and any
successor acts thereto), in an amount at least equal to the full repair and
replacement value of the Trust Property or the maximum limit of coverage
available under such Act in respect of the Improvements, whichever is less;
automobile; Builder's Risk; sinkhole;
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earthquake; boiler and machinery; all in amounts adequate to cover repair and
replacement expenses; and contingent liability in connection with any loss
arising from the fact that any Improvement is deemed to be non-conforming
property, which at the time are commonly insured against in the case of
properties similarly situated, due regard being given to the site and the type
of the building, and the construction, location, utilities and occupancy or any
replacements or substitutions therefor.
(b) Policy Requirements. All liability insurance policies required
pursuant to Section 3.04(a) shall name Secured Party as an additional insured
thereunder, and all other insurance policies required pursuant to Section
3.04(a), to the extent reasonably possible, or otherwise maintained by Grantor
shall name Secured Party as the Secured Party under New York long form
non-contributory endorsements. All such insurance policies and endorsements
shall be fully paid or paid pursuant to an installment program offered to
Grantor by the insurer or its broker/agent, provided that the installments are
paid on or before the due date thereof so that all required insurance coverage
is maintained without interruption. All insurance policies required to be
maintained by Grantor shall contain such provisions and expiration dates, and be
in such form and issued by such insurance companies qualified and licensed to do
business in the jurisdiction in which the Trust Property is located, as may be
reasonably acceptable to Secured Party. All insurance companies issuing
insurance for the Trust Property on behalf of Grantor shall have a Best
Insurance Guide Rating of A/XI (or its equivalent in the worldwide market) or
better. Any coverage required to be maintained pursuant to this Section 3.04 may
be maintained under a blanket insurance policy provided that (i) the limits of
coverage applicable to each building are not less than the respective amounts
specified in Section 3.04(a), and (ii) such policy otherwise satisfies the
requirements of this Section 3.04. Each policy required to be maintained by
Grantor shall provide that such policy may not be cancelled or materially
changed except upon not less than thirty (30) days' prior written notice to
Secured Party of the intention of non-renewal, cancellation or material change
and that no act or thing done by Grantor shall invalidate the policy as against
Secured Party. In the event Grantor fails to maintain insurance in compliance
with this Section 3.04 or, in the event that a notice of non-renewal,
cancellation or material change is given to Secured Party, as aforesaid, and
within ten (10) days after the delivery of such notice Grantor shall fail to
deliver to Secured Party evidence of the purchase of a substitute policy of
insurance or a renewal of the existing policy of insurance, Secured Party may,
after ten (10) days' notice to Grantor (or, if the policy in question shall
sooner expire or be terminated, on or after the day before the date of such
expiration or termination) but shall not be obligated to, obtain such insurance
and pay the premium therefor and Grantor shall, on demand, reimburse Secured
Party for all sums, advances and reasonable expenses incurred in connection
therewith, together with interest thereon at the rate of interest applicable
under the Loan Agreement upon the occurrence of an Event of Default (the
"DEFAULT RATE") from the date such amounts are advanced until the same are paid
to Secured Party.
(c) No Separate Insurance. Grantor shall not carry separate or
additional insurance concurrent in form or contributing, in the event of loss,
with that required hereunder unless endorsed in favor of Secured Party as loss
payee or additional insured, as applicable, and otherwise acceptable to Secured
Party in all respects.
(d) Transfer of Title. In the event of foreclosure of this Deed of
Trust or other transfer of title or assignment of the Premises in
extinguishment, in whole or in part, of the
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Secured Obligations, all right, title and interest of Grantor in and to all
policies of insurance required under this Section 3.04 or otherwise then in
force with respect to the Premises and all proceeds payable thereunder and
unearned premiums thereon shall immediately vest in the purchaser or other
transferee of the Premises.
(e) Delivery of Policies. Grantor covenants that it has delivered to
Secured Party, and shall, from time to time as may be requested by Secured
Party, deliver to Secured Party, the policies of insurance (or, if such policies
are not yet available, unconditional binders to issue the same), or certificates
thereof, that may be requested by Secured Party to confirm that the insurance
required under the terms of the Financing Agreements is in place and in full
force and effect.
SECTION 3.05. Liens and Liabilities.
(a) Discharge of Liens. Grantor will pay, bond or otherwise
discharge, from time to time when the same shall become due, all claims and
demands of mechanics, materialmen, laborers and others which, if unpaid, might
result in, or permit the creation of, a lien on the Premises.
(b) Creation of Liens. Grantor will not, without Secured Party's
consent, create, place or permit to be created or placed or allow to remain, and
shall discharge and release within 10 days after the placing thereof, any deed
of trust, trust deed, voluntary or involuntary lien, security interest or other
encumbrance against or covering the Premises, other than Permitted Liens and
Claims, whether or not subordinate hereto.
(c) No Consent. Nothing in this Deed of Trust shall be deemed or
construed in any way as constituting the consent or request by Secured Party,
express or implied, to any contractor, subcontractor, laborer, mechanic or
materialman for the performance of any labor or the furnishing of any material
for any improvement, construction, alteration or repair of the Premises. Grantor
further agrees that Secured Party does not stand in any fiduciary relationship
to Grantor.
SECTION 3.06. Taxes and Other Charges.
(a) Taxes on the Premises. Grantor will promptly pay when due prior
to delinquency and before any penalty or interest may be added thereto, all
taxes, assessments, vault, water and sewer rents, rates, charges and
assessments, levies, permits, inspection and license fees and other governmental
and quasi-governmental charges and any penalties or interest for non-payment
thereof, heretofore or hereafter imposed which may become a lien upon the Trust
Property ("IMPOSITIONS"). Grantor will also pay any penalty, interest or cost
for non-payment of Impositions which may become due and payable.
(b) Increased Costs. In the event of the enactment after the date
hereof of any law deducting from the value of the Trust Property for the purpose
of taxation any lien or security interest thereon, or changing in any way the
laws for the taxation of mortgages, deeds of trust or other liens or debts
secured thereby, or the manner of collection of such taxes, so as to affect this
Deed of Trust, the Secured Obligations, Secured Party or the holders of the
Secured
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Obligations, then, and in such event, Grantor shall, on demand, pay to Secured
Party or such holder, or reimburse Secured Party or such holder for payment of,
all taxes, assessments, charges or liens for which Secured Party or such holder
is or may be liable as a result thereof, provided that if any such payment or
reimbursement shall be unlawful or would constitute usury or render the Secured
Obligations wholly or partially usurious under applicable law, then Secured
Party may, at its option, declare the Secured Obligations immediately due and
payable or require Grantor to pay or reimburse Secured Party for payment of the
lawful and non-usurious portion thereof.
SECTION 3.07. Damage and Destruction.
(a) Grantor's Obligations. In the event of any damage to or loss or
destruction of the Premises, Grantor shall (i) promptly notify Secured Party of
such event, if such event would give rise to a claim under the insurance
policies required to be maintained by Grantor pursuant to Section 3.04, (ii)
take such steps as shall be necessary to preserve any undamaged portion of the
Premises and (iii) except as otherwise instructed by Secured Party or as
otherwise provided in Section 3.07(d) below, regardless of whether the insurance
proceeds, if any, shall be sufficient for the purpose or shall be otherwise
applied by Secured Party as provided herein, promptly commence and diligently
pursue to completion the restoration, replacement and rebuilding of the Premises
to the condition of the Premises affected thereby immediately prior to such
damage, loss or destruction.
(b) Secured Party's Rights; Application of Proceeds. In the event
that any portion of the Premises is so damaged, destroyed or lost, and such
damage, destruction or loss is covered, in whole or in part, by insurance
required by Section 3.04, then (i) Secured Party may, but shall not be obligated
to, make proof of loss if not made promptly by Grantor and is hereby authorized
and empowered by Grantor to settle, adjust or compromise any claims for damage,
destruction or loss thereunder, (ii) each insurance company concerned is hereby
authorized and directed to make payment therefor directly to Secured Party, and
(iii) Secured Party shall have the right to apply the insurance proceeds, first,
to reimburse Secured Party and the holders of the Secured Obligations for all
costs and expenses, including adjustors' and attorneys' fees and disbursements,
incurred in connection with the collection of such proceeds, and, second, the
remainder of such proceeds shall be applied, at Secured Party's option, in
accordance with the instructions of the Required Lenders, in payment (without
premium or penalty) of all or any part of the Secured Obligations, in the order
and manner determined by Secured Party (provided that to the extent that any
portion of the Secured Obligations shall remain outstanding after such
application, such unpaid portion of the Secured Obligations shall continue in
full force and effect and Grantor shall not be excused from the payment
thereof), or to the cure of any then current default hereunder, or to the
restoration, replacement or rebuilding, in whole or in part, of the portion of
the Premises so damaged, destroyed or lost, provided that any insurance proceeds
held by Secured Party to be applied to the restoration, replacement or
rebuilding of the Premises shall be so held without payment or allowance of
interest thereon and shall be paid out from time to time upon compliance by
Grantor with such provisions and requirements as may reasonably be imposed by
Secured Party. In the event that Grantor shall have received or possess all or
any portion of the insurance proceeds, Grantor, upon demand from Secured Party,
shall pay to Secured Party an amount equal to the amount so received by Grantor,
to be applied as Secured Party shall have the right pursuant to this Section
3.07(b). Notwithstanding anything herein or at
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law or in equity to the contrary, no insurance proceeds or payments in lieu
thereof paid to Secured Party shall be deemed trust funds, and Secured Party
shall be entitled to dispose of such proceeds as provided in this Section 3.07.
(c) Reserved.
(d) Reserved.
(e) Effect on the Secured Obligations. Notwithstanding any loss,
damage or destruction referred to in this Section 3.07, Grantor shall continue
to pay and perform the Secured Obligations as provided herein. Any reduction in
the Secured Obligations resulting from such application shall be deemed to take
effect only on the date of receipt by Secured Party of such insurance proceeds
and application against the Secured Obligations, provided that if prior to the
receipt by Secured Party of such insurance proceeds the Trust Property shall
have been sold on foreclosure of this Deed of Trust, or shall have been
transferred by deed in lieu of foreclosure of this Deed of Trust, Secured Party
shall have the right to receive the same to the extent of any deficiency found
to be due upon such sale, with legal interest thereon together with attorneys'
fees and disbursements incurred by Secured Party in connection with the
collection thereof.
SECTION 3.08. Condemnation.(a) Grantor's Obligations; Proceedings.
Grantor, promptly upon obtaining knowledge of any pending or threatened
institution of any proceedings for the condemnation of the Premises, or of any
right of eminent domain which would materially adversely affect the use and
operation of the Premises as required hereunder, will notify Secured Party of
the threat or pendency thereof. If an Event of Default shall have occurred and
be continuing, Trustee or Secured Party may participate in any such proceedings,
and Grantor from time to time will execute and deliver to Trustee or Secured
Party all instruments requested by Trustee or Secured Party or as may be
required to permit such participation. Grantor shall, at its expense, diligently
prosecute any such proceedings, and, if an Event of Default shall have occurred
and be continuing, (i) shall deliver to Trustee or Secured Party copies of all
papers served in connection therewith and shall consult and cooperate with
Trustee or Secured Party, its attorneys and agents, in the carrying on and
defense of any such proceedings and (ii) shall not settle any such proceeding
without Trustee or Secured Party's consent.
(b) Secured Party's Rights; Application of Awards. Secured Party
shall have the right to apply any Awards first, to reimburse Trustee or Secured
Party and the holders of the Secured Obligations for all costs and expenses,
including appraiser and attorneys' fees and disbursements, incurred in
connection with the collection of such proceeds, and, second, the remainder of
such Awards shall be applied, at Secured Party's option, in accordance with the
instructions of the Required Lenders, in payment (without premium or penalty) of
all or any part of the Secured Obligations, in the order and manner determined
by Secured Party (provided that to the extent that any portion of the Secured
Obligations shall remain outstanding after such application, such unpaid portion
of the Secured Obligations shall continue in full force and effect and Grantor
shall not be excused from the payment thereof), or to the cure of any then
current default hereunder, or to the restoration, replacement or rebuilding, in
whole or in part, of the portion of the Premises so taken or condemned provided
that any Awards held by Secured Party
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to be applied to the restoration, replacement or rebuilding of the Premises
shall be so held without payment or allowance of interest thereon and shall be
paid out from time to time upon compliance by Grantor with such provisions and
requirements as may reasonably be imposed by Secured Party. In the event that
Grantor shall have received all or any portion of such Awards, Grantor, upon
demand from Secured Party, shall pay to Secured Party an amount equal to the
amount so received by Grantor, to be applied as Secured Party shall have the
right pursuant to this Section 3.08(b). Notwithstanding anything herein or at
law or in equity to the contrary, none of the Awards paid to Secured Party under
this Section 3.08 shall be deemed trust funds and Secured Party shall be
entitled to dispose of the same as provided in this Section 3.08.
(c) Reserved.
(d) Reserved.
(e) Effect on the Secured Obligations. Notwithstanding any
condemnation, taking or other proceeding referred to in this Section 3.08,
Grantor shall continue to pay and perform the Secured Obligations as provided
herein. Any reduction in the Secured Obligations resulting from such application
shall be deemed to take effect only on the date of receipt by Secured Party of
such Awards and application against the Secured Obligations, provided that if
prior to the receipt by Secured Party of such Awards the Trust Property shall
have been sold on foreclosure of this Deed of Trust, or shall have been
transferred by deed in lieu of foreclosure of this Deed of Trust, Secured Party
shall have the right to receive the same to the extent of any deficiency found
to be due upon such sale, with legal interest thereon together with attorneys'
fees and disbursements incurred by Secured Party in connection with the
collection thereof.
SECTION 3.09. Notice Limiting Amount. Grantor covenants that it will
not, without the prior written consent of Secured Party, file of record any
notice limiting the maximum principal amount secured by this Deed of Trust.
SECTION 3.10. Permits. Grantor has and will maintain in full force
and effect all necessary certificates, licenses, authorizations, registrations,
permits and/or approvals necessary for the operation, use and occupancy of the
Premises in a commercially reasonable manner, and the conduct of Grantor's
business at the Premises and, promptly upon request by Secured Party, Grantor
shall deliver to Secured Party copies of all of the same.
SECTION 3.11. Further Assurances. Grantor shall:
(a) at Grantor's sole cost and expense and at the request of Secured
Party, (i) promptly correct any defect or error which may be discovered in the
contents of this Deed of Trust or in its execution, acknowledgment or
recordation and (ii) promptly do, execute, acknowledge and deliver any and all
such further acts, deeds, conveyances, mortgages, deeds of trust, trust deeds,
assignments, estoppel certificates, notices of assignment, transfers,
certificates, assurances and other instruments that may be necessary or
desirable or that Secured Party may reasonably request from time to time in
order to carry out more effectively the purposes of this Deed of Trust, to
subject to the lien and security interest hereby created any of Grantor's
properties, rights or interests covered or now or hereafter intended to be
covered hereby, to perfect and maintain such lien and security interest hereby
created against the Trust Property or
13
such land or property adjacent to, contiguous with or necessary or related to or
used in connection with the Land, and to better assure, convey, grant, assign,
transfer and confirm unto Secured Party the rights granted or now or hereafter
intended to be granted to Secured Party hereunder or under any other instrument
executed in connection with this Deed of Trust or which Grantor may be or become
bound to convey, Deed of Trust or assign to Secured Party in order to carry out
the intention or facilitate the performance of the provisions of this Deed of
Trust; and
(b) at the request of Secured Party, promptly record and re-record,
file and refile and register and re-register this Deed of Trust, any financing
or continuation statements and every other instrument in addition or
supplemental to any thereof that shall be required by any present or future law
in order to perfect and maintain the validity, effectiveness and priority of
this Deed of Trust and the lien and security interest intended to be created
hereby, or to subject after-acquired property of Grantor to such lien and
security interest, in such manner and places and within such times as may be
necessary to accomplish such purposes and to preserve and protect the rights and
remedies of Secured Party. Upon any failure by Grantor to do so after request by
Secured Party, Secured Party may make, execute, record, file, re-record or
refile any and all such mortgages, instruments, certificates and documents for
and in the name of Grantor, and Grantor hereby irrevocably appoints Secured
Party the agent and attorney-in-fact of Grantor to do so, which appointment is
irrevocable and coupled with an interest and will terminate upon the
satisfaction of record of this Deed of Trust. Grantor will furnish to Secured
Party evidence satisfactory to Secured Party of every such recording, filing or
registration. Secured Party may, at Grantor's sole expense, file copies or
reproductions of this instrument as financing statements at any time and from
time to time at Secured Party's option without further authorization from
Grantor.
SECTION 3.12. Leases.(a) Assignment. Grantor hereby absolutely,
presently and irrevocably bargains, sells, transfers, assigns and sets over to
Secured Party all of its right, title and interest in and to the Leases and the
Rents payable thereunder and all rights of Grantor thereunder and any and all
deposits held as security under the Leases, whether before or after foreclosure
or during the full period of redemption, if any, and shall, upon demand, deliver
to Secured Party an executed counterpart of each Lease. The assignment of the
Leases and Rents, and of the aforesaid rights with respect thereto, is intended
to be and is an absolute present assignment from Grantor to Secured Party and
not merely the passing of an additional security interest only. Such assignment
and grant shall continue in effect until the Secured Obligations are paid, the
execution of this Deed of Trust constituting and evidencing the irrevocable
consent of Grantor to the entry upon and taking possession of the Premises by
Secured Party pursuant to such grant, whether foreclosure has been instituted or
not and without applying for a receiver. Until the occurrence of an Event of
Default hereunder, Grantor shall have a revocable license to collect and receive
the Rents and agrees to hold the same in trust. Such right of Grantor to collect
and receive Rents shall be automatically revoked upon the occurrence of an Event
of Default and thereafter Secured Party shall have the right and authority to
exercise any of the rights or remedies referred to or set forth in Article VI.
In addition, upon such an Event of Default, Grantor shall promptly pay to
Secured Party (i) all rent prepayments and security or other deposits paid to
Grantor pursuant to any Lease assigned hereunder and (ii) all charges for
services or facilities or for escalations which were paid pursuant to any such
Lease to the extent allocable to any period from and after such Event of
Default. Nothing contained in this Section 3.12(a) shall be construed to bind
Secured Party to the performance of any of the
14
covenants, conditions or provisions contained in any Lease or otherwise to
impose any obligation on Secured Party (including any liability under the
covenant of quiet enjoyment contained in any Lease or under any applicable law
in the event that any tenant shall have been joined as a party defendant in any
action to foreclose this Deed of Trust and shall have been barred and foreclosed
thereby of all right, title and interest and equity of redemption in the
Premises), except that Secured Party shall be accountable for any money actually
received pursuant to such assignment. Grantor hereby further grants to Secured
Party the right to notify the tenant under any Lease of the assignment thereof
and, after the occurrence of an Event of Default hereunder (i) to demand that
the tenant under any Lease pay all amounts due thereunder directly to Secured
Party, (ii) to enter upon and take possession of the Premises for the purpose of
collecting the Rents, (iii) to dispossess by the usual summary proceedings any
tenant defaulting in the payment thereof, (iv) to let the Premises, or any part
thereof, and (v) to apply the Rents, after payment of all necessary charges and
expenses, on account of the Secured Obligations.
(b) Grantor's Obligation to Pay Rent. If Grantor is not required to
surrender possession of the Premises hereunder in the event of any Event of
Default, Grantor will pay monthly in advance to Secured Party, on its entry into
possession pursuant to Article VI, or to any receiver appointed to collect the
Rents, the fair and reasonable rental value for the use and occupancy of the
Premises or such part thereof as may be in the possession of Grantor. Upon a
default in any such payment, Grantor will vacate and surrender such possession
to Secured Party or such receiver, and, in default thereof, may be evicted by
summary or any other available proceedings or actions.
SECTION 3.13. No Other Real Property. Except for the land and public
street and sidewalks adjacent thereto, Grantor does not use or occupy any other
material real property in connection with the operation, occupancy, and
management of the Premises. The Land includes all of the interests in real
property used or proposed to be used in connection with the operation of the
Premises.
ARTICLE IV
Protective Advances; Expenses
SECTION 4.01. Protective Advances and Disbursements. Grantor agrees
that, if Grantor shall default in any of its obligations hereunder, then Secured
Party shall have the right in its sole discretion without notice to Grantor to
advance all or any part of amounts owing or to perform any or all required
actions. No such advance or performance shall be deemed to have cured such
default by Grantor or any Event of Default with respect thereto. All sums
advanced and all expenses incurred by Secured Party in connection with such
advances or actions, and all other sums advanced or expenses incurred by Secured
Party hereunder or under applicable law (whether required or optional and
whether indemnified hereunder or not) shall be part of the Secured Obligations,
shall bear interest at the Default Rate and shall be secured by this Deed of
Trust. Grantor hereby appoints Secured Party its true and lawful
attorney-in-fact to make the payments and effect the performance contemplated by
the aforesaid provisions in the name and on behalf of Grantor. This appointment,
being coupled with an interest and with full power of
15
substitution, shall be irrevocable until all of the Secured Obligations shall be
fully satisfied, paid and performed and Secured Party shall have no further
Secured Obligations.
SECTION 4.02. Other Expenses. Grantor will pay or, on demand,
reimburse Secured Party or any holder of the Secured Obligations for the payment
of any and all costs or expenses (including attorneys' fees and disbursements)
incurred in connection with (a) any default or Event of Default by Grantor
hereunder, (b) the exercise or enforcement by or on behalf of Secured Party or
any holder of the Secured Obligations of any of its rights or of Grantor's
obligations under the Financing Agreements or (c) the granting, administration,
enforcement and closing of the transactions contemplated hereunder.
SECTION 4.03. Interest After Default. If any payment due hereunder
or under the other Financing Agreements is not paid in full when due, whether by
acceleration or otherwise, then the same shall bear interest hereunder at the
Default Rate, and such interest shall be added to and become a part of the
Secured Obligations and shall be secured hereby.
ARTICLE V
[Intentionally Omitted]
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. The occurrence of an "Event of
Default" under the Loan Agreement shall be an Event of Default hereunder and
upon acceleration of the indebtedness evidenced by the Loan Agreement, all
Secured Obligations shall immediately become due and payable without further
notice to Grantor.
SECTION 6.02. Remedies. Upon the occurrence and during the
continuation of any one or more Events of Default, Secured Party may, in
addition to any rights or remedies available to it hereunder or under the other
Financing Agreements and to the extent permitted by applicable law, take such
action personally or by its agents or attorneys, with or without entry, and
without notice, demand, presentment or protest (each and all of which are hereby
waived), as it deems necessary or advisable to protect and enforce its rights
and remedies against Grantor and in and to the Trust Property, including, to the
extent permitted by applicable law, the following actions, each of which may be
pursued concurrently or otherwise, at such time and in such order as Secured
Party may determine, in its sole discretion, without impairing or otherwise
affecting its other rights or remedies:
(a) institute a proceeding or proceedings, judicial or otherwise,
for the complete or partial foreclosure of this Deed of Trust under any
applicable provision of law; or
(b) authorize Trustee, as Trustee for the benefit of Secured Party,
to sell the Trust Property, and all estate, right, title, interest, claim and
demand of Grantor therein, and all rights of redemption thereof, to the maximum
extent permitted by the laws of Mississippi, at one
16
or more sales, as an entirety or in parcels, with such elements of real and/or
personal property, and at such time and place and upon such terms as it may deem
expedient, or as may be required by applicable law, and in the event of a sale,
by foreclosure or otherwise, of less than all of the Trust Property, this Deed
of Trust shall continue as a lien on and security interest in the remaining
portion of the Trust Property; Grantor waives the provisions of Section 89-1-55
of the Mississippi Code of 1972 as amended, if any, as far as this section
restricts the right of Trustee to offer at sale more than 160 acres at a time,
and Trustee may offer the Trust Property herein conveyed as a whole regardless
of how it is described; if the Trust Property is situated in two or more
counties, or in two judicial districts of the same county, Trustee shall have
the full power to select which county or judicial district, the sale of the
Trust Property is to be made and Trustee's selection shall be binding upon
Grantor and Secured Party; or
(c) institute an action, suit or proceeding in equity for the
specific performance of any of the provisions contained in the Financing
Agreements; or
(d) make application to a court of competent jurisdiction for, and
obtain from such court as a matter of strict right and without notice to Grantor
or regard to the adequacy of the Trust Property for the repayment of the
Indebtedness, the appointment of a receiver of the Trust Property, and Grantor
irrevocably consents to such appointment; or
(e) to the maximum extent permitted by the laws of Mississippi,
enter upon the Premises, and exclude Grantor and its agents and servants wholly
therefrom, without liability for trespass, damages or otherwise, and take
possession of all books, records and accounts relating thereto and all other
Trust Property, and Grantor agrees to surrender possession of the Trust Property
and of such books, records and accounts to Secured Party on demand after the
happening of any Event of Default; and having and holding the same may use,
operate, manage, preserve, control and otherwise deal therewith and conduct the
business thereof, either personally or by its superintendents, managers, agents,
servants, attorneys or receivers, without interference from Grantor, including,
without limitation, (i) entering into such contracts and taking such other
action as Secured Party deems appropriate to complete any construction on the
Land, and in connection with any such action Secured Party may modify plans and
specifications as Secured Party deems appropriate; (ii) making, cancelling,
enforcing or modifying Leases; (iii) obtaining and evicting tenants; (iv) fixing
or modifying Rents; (v) conducting the business of Grantor in its own name or in
the name of Grantor; (vi) using any and all of Grantor's properties and
facilities relating to the Premises; (vii) dealing with Grantor's creditors,
debtors, tenants, lessees, agents, employees and other Persons having any
relationship whatsoever with Grantor, and (viii) altering or amending any
contracts between them, in any manner Secured Party may determine; and upon each
such entry and from time to time thereafter may, at the expense of Grantor and
the Trust Property, without interference by Grantor and as Secured Party may
deem advisable, (x) insure or reinsure the Premises, (y) make all necessary or
proper repairs, renewals, replacements, alterations, additions, betterments and
improvements thereto and thereon and (z) in every such case in connection with
the foregoing have the right to exercise all rights and powers of Grantor with
respect to the Trust Property, either in Grantor's name or otherwise; or
(f) with or without entrance upon the Premises, collect, receive,
▇▇▇ for and recover in its own name all Rents and cash collateral derived from
the Trust Property, and after deducting therefrom all costs, expenses and
liabilities of every character incurred by Secured
17
Party in collecting the same and in using, operating, managing, preserving and
controlling the Trust Property, and otherwise in exercising Secured Party's
rights under Section 6.02(e), including all amounts necessary to pay
Impositions, insurance premiums and other charges in connection with the
Premises, as well as compensation for the services of Secured Party and its
respective attorneys, agents and employees, to apply the remainder as provided
in Section 6.05; or
(g) release any portion of the Trust Property for such consideration
as Secured Party may require without, as to the remainder of the Trust Property,
in any way impairing or affecting the lien or priority of this Deed of Trust, or
improving the position of any subordinate lienholder with respect thereto,
except to the extent that the Secured Obligations shall have been reduced by the
actual monetary consideration, if any, received by Secured Party for such
release and applied to the Secured Obligations, and may accept by assignment,
pledge or otherwise any other property in place thereof as Secured Party may
require without being accountable for so doing to any other lienholder; or
(h) take all actions permitted under the Uniform Commercial Code in
effect in the jurisdiction in which the Trust Property is located (the "UCC");
or
(i) exercise all other rights, remedies and recourses granted under
the Financing Agreements or otherwise available at law or in equity.
In the event that Secured Party shall exercise any of the rights or
remedies set forth in Sections 6.02(e) or 6.02(f), Secured Party shall not be
deemed to have entered upon or taken possession of the Trust Property except
upon the exercise of its option to do so, evidenced by its demand and overt act
for such purpose under any applicable provision of law. Secured Party shall not
become a Secured Party-in-possession so long as it does not enter or take actual
possession of the Trust Property. Secured Party shall not be liable to account
for any action taken pursuant to any such exercise other than for Rents actually
received by Secured Party, nor liable for any loss sustained by Grantor
resulting from any failure to let the Premises, or from any other act or
omission of Secured Party except to the extent such loss is caused by the
willful misconduct or bad faith of Secured Party.
SECTION 6.03. Rights Pertaining to Sales. Subject to the provisions
or other requirements of law and except as otherwise provided herein, the
following provisions shall apply to any sale or sales of all or any portion of
the Trust Property under or by virtue of this Article VI, whether made under the
power of sale herein granted or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale:
(a) To the maximum extent permitted under the laws of Mississippi,
Trustee, as Trustee for the benefit of Secured Party, may conduct any number of
sales from time to time. The power of sale set forth in Section 6.02(b) shall
not be exhausted by any one or more such sales as to any part of the Trust
Property which shall not have been sold, nor by any sale which is not completed
or is defective in Secured Party's opinion, until the Secured Obligations shall
have been paid in full.
18
(b) To the maximum extent permitted under the laws of Mississippi,
any sale may be postponed or adjourned by public announcement at the time and
place appointed for such sale or for such postponed or adjourned sale without
further notice. Without limiting the foregoing, if Secured Party shall have
proceeded to enforce any right or remedy under this Deed of Trust by receiver,
entry or otherwise, and such proceedings have been discontinued or abandoned for
any such reason or shall have been determined adversely to Secured Party, then
in every such case Grantor and Secured Party shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of Secured
Party shall continue as if no such proceeding had been taken.
(c) After each sale, Trustee, as Trustee for the benefit of Secured
Party, or an officer of any court empowered to do so shall execute and deliver
to the purchaser or purchasers at such sale a good and sufficient instrument or
instruments granting, conveying, assigning and transferring all right, title and
interest of Grantor in and to the property and rights sold and shall receive the
proceeds of such sale or sales and apply the same as herein provided. Secured
Party is hereby appointed the true and lawful attorney-in-fact of Grantor, which
appointment is irrevocable and shall be deemed to be coupled with an interest,
in Grantor's name and stead, to make all necessary conveyances, assignments,
transfers and deliveries of the property and rights so sold, and for that
purpose Trustee or Secured Party may execute all necessary instruments of
conveyance, assignment, transfer and delivery, and may substitute one or more
Persons with like power, Grantor hereby ratifying and confirming all that such
attorney or such substitute or substitutes shall lawfully do by virtue thereof.
Nevertheless, Grantor, if requested by Trustee or Secured Party, shall ratify
and confirm any such sale or sales by executing and delivering to Trustee or
Secured Party or such purchaser or purchasers all such instruments as may be
advisable, in Trustee or Secured Party's judgment, for the purposes as may be
designated in such request.
(d) Any and all statements of fact or other recitals made in any of
the instruments referred to in Section 6.03(c) given by Secured Party as to
nonpayment of the Secured Obligations, or as to the occurrence of any Event of
Default, or as to Secured Party having declared all or any of the Secured
Obligations to be due and payable, or as to the request to sell, or as to notice
of time, place and terms of sale and of the property or rights to be sold having
been duly given, or as to any other act or thing having been duly done by
Grantor, Trustee or Secured Party shall be taken as conclusive and binding
against all Persons as to evidence of the truth of the facts so stated and
recited. Trustee, as Trustee for the benefit of Secured Party, may appoint or
delegate any one or more Persons as agent to perform any act or acts necessary
or incident to any sale so held, including the posting of notices and the
conduct of sale.
(e) The receipt of Secured Party for the purchase money paid at any
such sale, or the receipt of any other Person authorized to receive the same,
shall be sufficient discharge therefor to any purchaser of any property or
rights sold as aforesaid, and no such purchaser, or its representatives,
grantees or assigns, after paying such purchase price and receiving such
receipt, shall be bound to see to the application of such purchase price or any
part thereof upon or for any trust or purpose of this Deed of Trust or, in any
manner whatsoever, be answerable for any loss, misapplication or nonapplication
of any such purchase money, or part thereof, or be bound to inquire as to the
authorization, necessity, expediency or regularity of any such sale.
19
(f) Any such sale or sales shall operate to divest all of the
estate, right, title, interest, claim and demand whatsoever, whether at law or
in equity, of Grantor in and to the properties and rights so sold, and shall be
a perpetual bar both at law and in equity against Grantor and any and all
persons claiming or who may claim the same, or any part thereof or any interest
therein, by, through or under Grantor to the fullest extent permitted by
applicable law.
(g) Upon any such sale or sales, Secured Party may bid for and
acquire the Trust Property and, in lieu of paying cash therefor, may make
settlement for the purchase price by crediting against the Secured Obligations
the amount of the bid made therefor, after deducting therefrom the expenses of
the sale, the cost of any enforcement proceeding hereunder, the costs, fees, and
expenses and any other sums which Secured Party is authorized to deduct under
the terms hereof, to the extent necessary to satisfy such bid.
(h) In the event that Grantor, or any Person claiming by, through or
under Grantor, shall transfer or refuse or fail to surrender possession of the
Trust Property after any sale thereof, then Grantor, or such Person, shall be
deemed a tenant at sufferance of the purchaser at such sale, subject to eviction
by means of forcible entry and unlawful detainer proceedings, or subject to any
other right or remedy available hereunder or under applicable law.
(i) Upon any such sale, it shall not be necessary for Secured Party
or any public officer acting under execution or order of court to have present
or constructively in its possession any of the Trust Property.
(j) In the event a foreclosure hereunder shall be commenced by
Trustee, as Trustee for the benefit of Secured Party, Secured Party may at any
time before the sale of the Trust Property, instruct Trustee to abandon the
sale, and Secured Party may institute suit for the collection of the Secured
Obligations and for the foreclosure of this Deed of Trust, or in the event that
Secured Party should institute a suit for collection of the Secured Obligations,
and for the foreclosure of this Deed of Trust, Secured Party may at any time
before the entry of final judgment in said suit dismiss the same and require
Trustee, as Trustee for the benefit of Secured Party, to sell the Trust Property
in accordance with the provisions of this Deed of Trust.
SECTION 6.04. Expenses. In any proceeding, judicial or otherwise, to
foreclose this Deed of Trust or enforce any other remedy of Secured Party under
the Financing Agreements, there shall be allowed and included as an addition to
and a part of the Secured Obligations in the decree for sale or other judgment
or decree all expenditures and expenses which may be paid or incurred in
connection with the exercise by Secured Party of any of its rights and remedies
provided or referred to in Section 6.02, or any comparable provision of any
other Financing Agreement, together with interest thereon at the rate or rates
provided in the Loan Agreement, and the same shall be part of the Secured
Obligations and shall be secured by this Deed of Trust.
SECTION 6.05. Application of Proceeds. The purchase money, proceeds
or avails of any sale referred to in Section 6.02, together with any other sums
which may be held by Secured Party hereunder, whether under the provisions of
this Article VI or otherwise, shall, except as herein expressly provided to the
contrary, be applied as follows:
20
First: To the payment of the costs and expenses of any such sale,
including compensation to Secured Party, its agents and counsel, and of any
judicial proceeding wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by Secured Party hereunder, together
with interest thereon as provided herein, and all Impositions and other charges,
except any Impositions or other charges subject to which the Trust Property
shall have been sold.
Second: To the payment in full of the monetary Secured Obligations
(including principal, interest, premium and fees) in such order as Secured Party
may elect.
Third: To the payment of any other sums secured hereunder or
required to be paid by Grantor pursuant to any provision of the Financing
Agreements.
Fourth: To the extent permitted by applicable law, to be set aside
by Secured Party as adequate security in its judgment for the payment of sums
which would have been paid by application under clauses First through Third
above to Secured Party, arising out of an obligation or liability with respect
to which Grantor has agreed to indemnify Secured Party, but which sums are not
yet due and payable or liquidated.
Fifth: To the payment of any withholding tax requirements of the
Foreign Investment in Real Property Tax Act of 1980, as amended.
Sixth: To the payment of the surplus, if any, to whomsoever may be
lawfully entitled to receive the same.
SECTION 6.06. Additional Provisions as to Remedies.
(a) No delay or omission by Trustee or Secured Party to exercise any
right or remedy hereunder upon any default or Event of Default shall impair such
exercise, or be construed to be a waiver of any such default or Event of
Default.
(b) The failure, refusal or waiver (by consent, waiver or otherwise)
of Secured Party to assert any right or remedy hereunder upon any default or
Event of Default or other occurrence shall not be construed as waiving such
right or remedy upon any other or subsequent default or Event of Default or
other occurrence.
(c) Secured Party shall have no obligation to pursue any rights or
remedies it may have under any other agreement prior to pursuing its rights or
remedies hereunder or under the other Financing Agreements.
(d) Acceptance of any payment after the occurrence of any default or
Event of Default shall not be deemed a waiver or a cure of such default or Event
of Default, and acceptance of any payment less than any amount then due shall be
deemed an acceptance on account only.
(e) In the event that Secured Party shall have proceeded to enforce
any right or remedy hereunder by foreclosure, sale, entry or otherwise, and such
proceeding shall be discontinued, abandoned or determined adversely for any
reason, then Grantor and Secured Party
21
shall be restored to their former positions and rights hereunder with respect to
the Trust Property, subject to the lien hereof.
(f) Each right of Secured Party provided for in this Deed of Trust
shall be cumulative and shall be in addition to every other right provided for
in this Deed of Trust or now or hereafter existing at law or in equity, by
statute or otherwise, and the exercise by Secured Party of any one or more of
such rights shall not preclude the simultaneous or later exercise by Secured
Party of any other such right.
SECTION 6.07. Waiver of Rights and Defenses. To the full extent
Grantor may lawfully do so, Grantor agrees with Secured Party as follows:
(a) Grantor will not, at any time, insist on, plead, claim or
take the benefit or advantage of any statute or rule of law now or
hereafter in force providing for any appraisement, valuation, stay,
extension, moratorium, redemption or reinstatement, or of any statute of
limitations, and Grantor, for itself and its heirs, devisees,
representatives, successors and assigns, and for any and all Persons ever
claiming an interest in the Trust Property (other than Secured Party),
hereby, to the extent permitted by applicable law, waives and releases all
rights of redemption, reinstatement, valuation, appraisement, and notice
of intention to mature or declare due the whole of the Secured Obligations
and all rights to a marshaling of the assets of Grantor, including the
Trust Property, or to a sale in inverse order of alienation, in the event
of foreclosure of the liens and security interests created hereunder.
(b) Grantor shall not have or assert any right under any
statute or rule of law pertaining to any of the matters set forth in
Section 6.07(a), to the administration of estates of decedents or to any
other matters whatsoever to defeat, reduce or affect any of the rights or
remedies of Secured Party hereunder, including the rights of Secured Party
hereunder to a sale of the Trust Property for the collection of the
Secured Obligations without any prior or different resort for collection,
or to the payment of the Secured Obligations out of the proceeds of sale
of the Trust Property in preference to any other Person.
(c) If any statute or rule of law referred to in this Section
6.07 and now in force, of which Grantor or any of its representatives,
successors or assigns and such other Persons claiming any interest in the
Property might take advantage despite this Section 6.07, shall hereafter
be repealed or cease to be in force, such statute or rule of law shall not
thereafter be deemed to preclude the application of this Section 6.07.
(d) Grantor shall not be relieved of its obligation to pay the
Secured Obligations at the time and in the manner provided in the
Financing Agreements, nor shall the lien or priority of this Deed of Trust
or any other Financing Agreement be impaired by any of the following
actions, non-actions or indulgences by Secured Party, each of which
actions, non-actions or indulgences Secured Party may, in its discretion,
take or refrain from taking:
22
(i) any failure or refusal by Secured Party to comply
with any request by Grantor (A) to consent to any action by Grantor
or (B) to take any action to foreclose this Deed of Trust or
otherwise enforce any of the provisions of the Financing Agreements;
(ii) any release, regardless of consideration, of the
whole or any part of the Property or any other security for the
Secured Obligations, or any Person liable for payment of the Secured
Obligations;
(iii) any waiver by Secured Party of compliance by
Grantor with any provision of the Financing Agreements, or consent
by Secured Party to the performance by Grantor of any action which
would otherwise be prohibited thereunder, or to the failure by
Grantor to take any action which would otherwise be required
thereunder; and
(iv) any agreement or stipulation between Secured Party
and Grantor, or, with or without Grantor's consent, between Secured
Party and any subsequent owner or owners of the Trust Property or
any other security for the Secured Obligations, renewing, extending
or modifying the time of payment or the terms of the Financing
Agreements (including a modification of any interest rate), and in
any such event Grantor shall continue to be obligated to pay the
Secured Obligations at the time and in the manner provided in the
Financing Agreements, as so renewed, extended or modified, unless
expressly released and discharged by Secured Party.
(e) Regardless of consideration, and without the necessity for any
notice to or consent by the holder of any subordinate lien, encumbrance, right,
title or interest in or to the Trust Property, Secured Party may release any
Person at any time liable for the payment of the Secured Obligations or any
portion thereof or any part of the security held for the Secured Obligations and
may extend the time of payment or otherwise modify the terms of the Financing
Agreements, including a modification of the interest rates payable on the
principal balance of the Borrowings without in any manner impairing or affecting
this Deed of Trust or the lien thereof or the priority of this Deed of Trust, as
so extended and modified, as security for the Secured Obligations over any such
subordinate lien, encumbrance, right, title or interest. Secured Party may
resort for the payment of the Secured Obligations to any other security held by
Secured Party or any of the other Secured Parties in such order and manner as
Secured Party, in its discretion, may elect. Secured Party may take or cause to
be taken action to recover the Secured Obligations, or any portion thereof, or
to enforce any provision of the Financing Agreements without prejudice to the
right of Secured Party thereafter to foreclose or cause to be foreclosed this
Deed of Trust. Secured Party shall not be limited exclusively to the rights and
remedies herein stated but shall be entitled to every additional right and
remedy now or hereafter afforded by law or equity. The rights of Secured Party
under this Deed of Trust shall be separate, distinct and cumulative and none
shall be given effect to the exclusion of the others. No act of Secured Party
shall be construed as an election to proceed under any one provision herein to
the exclusion of any other provision.
23
(f) Grantor hereby waives any defense to the recovery by Secured
Party hereunder against Grantor or the Trust Property of any deficiency after a
nonjudicial sale. Without limiting the foregoing, Grantor waives any defense
arising out of any such nonjudicial sale even though such sale operates to
impair or extinguish any right of reimbursement or subrogation or any other
right or remedy of Grantor against Borrower or any subsidiary of Borrower or
against any collateral security.
ARTICLE VII
Release of Lien
SECTION 7.01. Release of Lien. If all of the Secured Obligations
shall be fully satisfied, paid and performed, all Commitments shall be
terminated and no Letters of Credit shall be outstanding, then and in that event
only all rights and obligations hereunder shall terminate. In such event Secured
Party shall, at the request of Grantor and at Grantor's expense, deliver to
Grantor, in recordable form, all such documents as shall be necessary to release
the Trust Property from the liens, security interests, conveyances and
assignments created or evidenced hereby. In addition, to the extent transfers
are permitted under the Loan Agreement, Secured Party shall release the lien of
this Deed of Trust if the Premises is being transferred in accordance with the
Loan Agreement.
ARTICLE VIII
Additional Provisions
SECTION 8.01. Provisions as to Payments. To the extent that any part
of the Secured Obligations is used to pay indebtedness secured by any Permitted
Liens and Claims or other outstanding lien, security interest, charge or prior
encumbrance against the Trust Property or to pay in whole or in part the
purchase price therefor, Secured Party shall be subrogated to any and all
rights, security interests and liens held by any owner or holder of the same,
whether or not the same are released. Grantor agrees that, in consideration of
such payment by Secured Party, effective upon such payment Grantor shall and
hereby does waive and release all demands, defenses and causes of action for
offsets and payments with respect to the same.
SECTION 8.02. Severability. If all or any portion of any provision
of this Deed of Trust or any other Financing Agreements shall be held to be
invalid, illegal or unenforceable in any respect or in any jurisdiction, then
such invalidity, illegality or unenforceability shall not affect any other
provision hereof or thereof, and such provision shall be limited and construed
in such jurisdiction as if such invalid, illegal or unenforceable provision or
portion thereof were not contained herein or therein.
SECTION 8.03. Notices. Any notice, demand, consent, approval,
direction, agreement or other communication (any "NOTICE") required or permitted
hereunder shall be in writing and shall be validly given if delivered in
accordance with Section 13.3 of the Loan Agreement to the parties hereto at the
addresses set forth above.
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SECTION 8.04. Right to Deal. In the event that ownership of the
Trust Property becomes vested in a Person other than Grantor, Secured Party may,
without notice to Grantor, deal with such successor or successors in interest
with reference to this Deed of Trust or the Secured Obligations in the same
manner as with Grantor, without in any way vitiating or discharging Grantor's
liability hereunder or for the payment of the Secured Obligations or being
deemed to have consented to such vesting.
SECTION 8.05. Continuation of Lease
(a) Upon the foreclosure of the lien created hereby on the Trust
Property, as herein provided, any Leases then existing shall not be destroyed or
terminated as a result of such foreclosure unless Secured Party or any purchaser
at a foreclosure sale shall so elect by notice to the lessee in question.
(b) If both the lessor's and the lessee's interest under any Lease
which constitutes a part of the Premises shall at any time become vested in any
one Person, this Deed of Trust and the lien and security interest created hereby
shall not be destroyed or terminated by the application of the doctrine of
merger and, in such event, Secured Party shall continue to have and enjoy all of
the rights and privileges of Secured Party hereunder as to each separate estate.
SECTION 8.06. Applicable Law. The provisions of this Deed of Trust
regarding the creation, perfection and enforcement of the liens and security
interests herein granted shall be governed by and construed under the laws of
the state in which the Trust Property is located. All other provisions of this
Deed of Trust shall be governed by the laws of the State of New York (including,
without limitation, Section 5-1401 of the General Obligations Law of the State
of New York), without regard to conflicts of laws principles.
SECTION 8.07. Sole Discretion of Secured Party.
(a) Whenever Secured Party's judgment, consent or approval is
required hereunder for any matter, or either shall have an option or election
hereunder, such judgment, the decision whether or not to consent to or approve
the same or the exercise of such option or election shall be in the sole
discretion of Secured Party.
(b) Notwithstanding anything contained herein to the contrary, in
the event that Secured Party fails or refuses to grant consent or approval when
required hereunder for any matter, the parties agree that the remedy of specific
performance shall be the sole remedy of Grantor with respect to such actions and
Grantor hereby waives all claims for damages with respect thereto.
SECTION 8.08. Provisions as to Covenants and Agreements. All of
Grantor's covenants and agreements hereunder shall run with the Land and time is
of the essence with respect thereto.
SECTION 8.09. Matters to be in Writing. This Deed of Trust cannot be
altered, amended, modified, terminated, waived, released or discharged except in
a writing signed by the party against whom enforcement is sought.
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SECTION 8.10. Submission to Jurisdiction. Without limiting the right
of Secured Party to bring any action or proceeding against the undersigned or
its property arising out of or relating to the Secured Obligations (an "ACTION")
in the courts of other jurisdictions, Grantor hereby irrevocably submits to the
jurisdiction of the state court or Federal court in the jurisdiction in which
the Trust Property is located, and Grantor hereby irrevocably agrees that any
Action may be heard and determined in such state or federal court. Grantor
hereby irrevocably waives, to the fullest extent that it may effectively do so,
the defense of an inconvenient forum to the maintenance of any Action in such
jurisdiction. Grantor hereby irrevocably agrees that the summons and complaint
or any other process in any Action in any jurisdiction may be served by mailing
to its address set forth herein or by hand delivery to a person of suitable age
and discretion at any such address. Such service will be complete on the date
such process is so mailed or delivered.
SECTION 8.11. Construction of Provisions. The following rules of
construction shall be applicable for all purposes of this Deed of Trust and all
documents or instruments supplemental hereto, unless the context otherwise
requires:
(a) All references herein to numbered Articles or Sections or to
lettered Exhibits are references to the Articles and Sections hereof and the
Exhibits annexed to this Deed of Trust, unless expressly otherwise designated in
context. All Article, Section and Exhibit captions herein are used for reference
only and in no way limit or describe the scope or intent of, or in any way
affect, this Deed of Trust.
(b) The terms "include", "including" and similar terms shall be
construed as if followed by the phrase "without being limited to".
(c) The terms "Land", "Improvements", "Equipment", "Trust Property"
and "Premises" shall be construed as if followed by the phrase "or any part
thereof".
(d) The term "Secured Obligations" shall be construed as if followed
by the phrase "or any other sums secured hereby, or any part thereof".
(e) Words of masculine, feminine or neuter gender shall mean and
include the correlative words of the other genders, and words importing the
singular number shall mean and include the plural number, and vice versa.
(f) The term "provisions", when used with respect hereto or to any
other document or instrument, shall be construed as if preceded by the phrase
"terms, covenants, agreements, requirements, conditions and/or".
(g) The cover page of and all recitals set forth in, and all
Exhibits to, this Deed of Trust are hereby incorporated in this Deed of Trust.
(h) All obligations of Grantor hereunder shall be performed and
satisfied by or on behalf of Grantor at Grantor's sole cost and expense.
26
(i) The term "lease" shall mean "tenancy, subtenancy, lease or
sublease", the term "lessor" shall mean "landlord, sublandlord, lessor and
sublessor" and the term "lessee" shall mean "tenant, subtenant, lessee and
sublessee".
(j) No inference in favor of or against any party shall be drawn
from the fact that such party has drafted any portion hereof.
SECTION 8.12. Successors and Assigns. The provisions hereof shall be
binding upon Grantor and the heirs, devisees, representatives, successors and
permitted assigns of Grantor, including successors in interest of Grantor in and
to all or any part of the Trust Property, and shall inure to the benefit of
Secured Party, the holders of the Secured Obligations and their respective
heirs, successors, legal representatives, substitutes and assigns. Where two or
more Persons have executed this Deed of Trust, the obligations of such Persons
shall be joint and several.
SECTION 8.13. Agency.
(a) Agent has been appointed to act as Agent hereunder by the
Lenders. Agent shall have the right hereunder to make demands, to give notices,
to exercise or refrain from exercising any rights, and to take or refrain from
taking any action (including, without limitation, the release or substitution of
the Trust Property) in accordance with the terms of the Loan Agreement, any
related agency agreement among Agent and the Lenders (collectively, as amended,
supplemented or otherwise modified or replaced from time to time, the "AGENCY
DOCUMENTS") and this Deed of Trust. Grantor and all other Persons shall be
entitled to rely on releases, waivers, consents, approvals, notifications and
other acts of Agent, without inquiry into the existence of required consents or
approvals of the Lenders therefor.
(b) Secured Party shall at all times be the same Person that is
Agent under the Agency Documents. Written notice of resignation by Agent
pursuant to the Agency Documents shall also constitute notice of resignation as
Agent under this Deed of Trust. Removal of Agent pursuant to any provision of
the Agency Documents shall also constitute removal as Agent under this Deed of
Trust. Appointment of a successor Agent pursuant to the Agency Documents shall
also constitute appointment of a successor Agent under this Deed of Trust. Upon
the acceptance of any appointment as Agent by a successor Agent under the Agency
Documents, that successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring or removed
Agent as the Secured Party under this Deed of Trust, and the retiring or removed
Agent shall promptly (i) assign and transfer to such successor Agent all of its
right, title and interest in and to this Deed of Trust and the Trust Property,
and (ii) execute and deliver to such successor Agent such assignments and
amendments and take such other actions, as may be necessary or appropriate in
connection with the assignment to such successor Agent of the liens and security
interests created hereunder, whereupon such retiring or removed Agent shall be
discharged from its duties and obligations under this Deed of Trust. After any
retiring or removed Agent's resignation or removal hereunder as Agent, the
provisions of this Deed of Trust and the Agency Documents shall inure to its
benefit as to any actions taken or omitted to be taken by it under this Deed of
Trust while it was the Agent hereunder.
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(c) The provisions of Article 12 of the Loan Agreement shall inure
to the benefit of Agent in respect of this Deed of Trust and shall be binding
upon Grantor and Secured Party in such respect.
SECTION 8.14. Inconsistencies Among Financing Agreements. In the
event that a valid and enforceable security interest has been created in any of
the Trust Property under the terms of the Loan Agreement and the terms of the
Loan Agreement are inconsistent with the terms of this Deed of Trust, then with
respect to such Trust Property, the terms of the Loan Agreement shall be
controlling in the case of Equipment and proceeds of insurance policies and the
terms of this Deed of Trust shall be controlling in all other cases. With
respect to any other Financing Agreement, in the event of a conflict between the
provisions hereof and the provisions of such other Financing Agreement as they
relate to the Trust Property, the provisions of this Deed of Trust shall
control.
SECTION 8.15. No Merger. The assignments by Grantor in favor of
Secured Party herein contained and the obligations of Grantor hereunder to (a)
maintain the insurance required to be maintained by Grantor hereunder and to pay
all premiums in respect thereof, (b) to pay all Impositions, (c) reimburse
Secured Party for all sums expended by Secured Party pursuant to this Deed of
Trust to protect the lien of this Deed of Trust and to prevent waste to the
Trust Property and (d) to pay interest at the Default Rate on the aforementioned
sums from the date due until paid in full shall not be merged into any judgment
of foreclosure and shall survive any such judgment.
SECTION 8.16. WAIVER OF JURY TRIAL. GRANTOR (BY ITS EXECUTION AND
DELIVERY HEREOF) AND SECURED PARTY (BY ITS ACCEPTANCE HEREOF) DO EACH HEREBY
KNOWINGLY, VOLUNTARILY, UNCONDITIONALLY, IRREVOCABLY AND INTENTIONALLY FOREVER
WAIVE THE RIGHT TO A TRIAL BY JURY IN EVERY JURISDICTION IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY GRANTOR OR SECURED PARTY AGAINST THE OTHER
OR THEIR RESPECTIVE SUCCESSOR OR ASSIGNS IN RESPECT OF ANY MATTER ARISING OUT
OF, UNDER OR CONNECTED WITH (INCLUDING, WITHOUT LIMITATION, ANY ACTION TO
RESCIND OR CANCEL THIS DEED OF TRUST OR THE OBLIGATIONS SECURED HEREBY, AND ANY
CLAIMS ASSERTING THAT THE SECURED OBLIGATIONS WERE FRAUDULENTLY INDUCED OR
OTHERWISE VOID OR VOIDABLE) IN ANY MANNER WHATSOEVER THIS DEED OF TRUST, THE
TRUST PROPERTY, OR ANY OF THE OTHER FINANCING AGREEMENTS, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PERSON OR ANY EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER THE
FINANCING AGREEMENTS. THIS WAIVER OF THE RIGHT TO A JURY TRIAL IS A MATERIAL
INDUCEMENT FOR THE LENDERS TO ADVANCE THE SUMS AND EXTEND THE CREDIT SECURED
HEREBY.
SECTION 8.17 SUCCESSOR TRUSTEE. Secured Party may at any time,
without giving formal notice to the original or any successor Trustee, or to
Grantor, and without regard to the willingness or inability of any such Trustee
to execute this trust, appoint another person or succession of persons to act as
Trustee, and such appointee in the execution of this
28
trust shall have all the powers vested in and obligations imposed upon Trustee.
Should Secured Party be a corporation, then any officer thereof may make such
appointment.
ARTICLE IX
Security Agreement
SECTION 9.01. Security Interest. This Deed of Trust constitutes a
"security agreement" on personal property within the meaning of the UCC and
other applicable law and with respect to the Equipment, Fixtures, Leases, Rents,
Rights and Claims, Agreements and Intangibles, Awards and all proceeds of the
foregoing. To this end, and pursuant to the Financing Order, Grantor grants to
Secured Party a first and prior security interest in the Equipment, Fixtures,
Leases, Rents, Rights and Claims, Agreements and Intangibles, Awards, all
proceeds thereof and all other Trust Property which is personal property
(excluding in each case any Excluded Property), subject only to Permitted Liens
and Claims, to secure the payment and performance of the Secured Obligations,
and agrees that Secured Party shall have all the rights and remedies of a
secured party under the UCC with respect to such property. Any notice of sale,
disposition or other intended action by Secured Party with respect to the
Equipment, Fixtures, Leases, Rents, Rights and Claims, Agreements and
Intangibles, Awards, and any proceeds thereof sent to Grantor at least five (5)
days prior to any action under the UCC shall constitute reasonable notice to
Grantor.
SECTION 9.02. Financing Statements. Grantor hereby irrevocably
authorizes Secured Party to cause UCC financing statements and any such other
documents and instruments to be recorded and filed in form and substance
satisfactory to Secured Party, such documents and instruments as Secured Party
may, from time to time, reasonably consider necessary to create, perfect and
preserve Secured Party's security interest hereunder, at such times and places
as may be required or permitted by law to so create, perfect and preserve such
security interest. Grantor's jurisdiction of organization is the State of
Mississippi. After the date hereof, Grantor shall not change its name, type of
organization, organizational identification number (if any), jurisdiction of
organization or location without giving at least thirty (30) days' prior written
notice to Secured Party.
ARTICLE X
Fixture Filing
SECTION 10.01. Fixture Filing. A portion of the Trust Property is or
is to become fixtures upon the Premises. Grantor covenants and agrees that the
filing of this Deed of Trust in the real estate records of the county in which
the Trust Property is located shall also operate from the time of filing as a
fixture filing with respect to all goods constituting part of the Trust Property
which are or are to become fixtures related to the real estate described herein.
For such purpose, the following information is set forth:
(a) Name and Address of Debtor:
29
▇▇▇▇▇▇▇ Fabrics, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) Name and Address of Secured Party:
Wachovia Bank, National Association, as agent for the Lenders
Heritage Square II, Suite 1050
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(c) This document covers goods which are or are to become fixtures.
(d) The record owner of the fee interests in the Land is Grantor.
Grantor represents and warrants that the employer identification
number of Grantor is ▇▇-▇▇▇▇▇▇▇ and the organizational identification number of
Grantor is 2118546.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT INTENTIONALLY BLANK]
30
IN WITNESS WHEREOF, the undersigned has executed this Deed of Trust as of
the day first set forth above.
GRANTOR:
Signed, sealed and delivered
In the presence of:
▇▇▇▇▇▇▇ FABRICS, INC., a Delaware
corporation.
_____________________________ By: _________________________________
Name: _______________________ Name: __________________________
Title: __________________________
_____________________________
Name: _______________________ By: _________________________________
Name: __________________________
Title: __________________________
STATE OF MISSISSIPPI )
) ss.:
COUNTY OF ▇▇▇ )
PERSONALLY APPEARED before me, the undersigned authority in and for the
aforesaid county and state, on this ______ day of June, 2005, within my
jurisdiction, the within named ________________________ and
______________________________________________, who acknowledged that [he/she]
is ___________________ and [he/she] is ___________________, respectively, of
▇▇▇▇▇▇▇ Fabrics, Inc., a Delaware corporation, and that for and on behalf of the
corporation, and as its act and deed, they executed the above and foregoing
instrument after first having been duly authorized by the corporation so to do.
______________________
NOTARY PUBLIC
My commission expires:
Schedule of Exhibits
Exhibit A: Description of the Land
31
EXHIBIT A
Description of the Land
Tract No.1
Commencing at the Northeast corner of the Southwest Quarter of ▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, Mississippi. Thence North 00 degrees
02 minutes 36 seconds West 37.06 feet; thence South 89 degrees 32 minutes 59
seconds West 1411.89 feet to the centerline of U.S. ▇▇▇▇▇▇▇ ▇▇. ▇▇; thence South
89 degrees 32 minutes 42 seconds West 199.06 feet, to the West line of the ▇▇▇
County right-of-way, for a Point of Beginning. Thence South 02 degrees 18
minutes 15 seconds West along the West line of a right of way deeded to ▇▇▇
County 647.50 feet to the North right of way of One Fashion Way; thence North 88
degrees 22 minutes 05 seconds West along said North line 951.00 feet to the East
right of way of ▇▇▇ County Road No. 911; thence North 00 degrees 36 minutes 44
seconds East along said East line 170.63 feet to a right of way marker; thence
South 86 degrees 13 minutes 10 seconds East 248.98 feet to an iron pin; thence
North 00 degrees 08 minutes 37 seconds West along an old fence 449.00 feet to an
iron pin; thence South 88 degrees 32 minutes 01 seconds East along an old fence
and the South line of the CDF property 392.75 feet to an iron pin; thence North
84 degrees 28 minutes 08 seconds East along said line 272.04 feet to an iron
pin; thence North 89 degrees 32 minutes 10 seconds East along said line 64.12
feet to the Point of Beginning, and containing 11.111 acres. Lying and being in
the East half of Section 10, Township 7 South, Range 6 East, ▇▇▇ County,
Mississippi.
Tract No.2
Commencing at the Northeast corner of the Southwest Quarter of ▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, Mississippi. Thence North 00 degrees
02 minutes 36 seconds West 37.06 feet; thence South 89 degrees 32 minutes 59
seconds West 1411.89 feet to the centerline of U.S. ▇▇▇▇▇▇▇ ▇▇. ▇▇; thence South
89 degrees 32 minutes 42 seconds West 199.06 feet to the West line of the ▇▇▇
County right-of-way; thence South 02 degrees 18 minutes 15 seconds West along
the West line of a right of way deeded to ▇▇▇ County 747.51 feet to the South
right of way of One Fashion Way, for a Point of Beginning. Thence South 02
degrees 18 minutes 15 seconds West along said West line 339.50 feet to an iron
pin; thence South 88 degrees 08 minutes 43 seconds East 20.00 feet to an iron
pin; thence South 02 degrees 18 minutes 15 seconds West along said West line
906.53 feet to an iron pin; thence South 88 degrees 08 minutes 43 seconds East
30.00 feet to a right of way marker; thence South 00 degrees 44 minutes 05
seconds East along the West right of way of U.S. Highway No. 45, a distance of
600.75 feet to an iron pin; thence South 02 degrees 07 minutes 40 seconds West
along said West line 120.00 feet to an iron pin; thence South 22 degrees 49
minutes 10 seconds West along said West line 451.44 feet to a right of way
marker; thence South 72 degrees 03 minutes 18 seconds West along said West line
108.98 feet to a right of way marker; thence South 71 degrees 10 minutes 56
seconds West along the ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇, a distance of
466.61
feet to an iron pin; thence South 69 degrees 39 minutes 17 seconds West along
said line 249.55 feet to the East right of way of ▇▇▇ County Road No. 911;
thence North 01 degrees 04 minutes 46 seconds East along said East line 671.86
feet to an iron pin; thence North 00 degrees 16 minutes 14 seconds West along
said East line 648.46 feet to an iron pin; thence North 00 degrees 57 minutes 11
seconds West along said East line 966.10 feet to a right of way marker; thence
North 01 degrees 27 minutes 53 seconds East along said East line 395.19 feet to
an iron pin, on the South right of way of One Fashion Way; thence South 88
degrees 22 minutes 05 seconds East along said South line 948.05 feet to the
Point of Beginning, and containing 53.385 acres. Lying and being in the
Southwest Quarter of Section 10, and the Northwest Quarter of Section ▇▇,
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇.