Exhibit 10.7
RECORDING REQUESTED BY AND
WHEN RECORDED, RETURN TO:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
===================================================================================================================
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND
FIXTURE FILING
(THIS IS A CREDIT LINE DEED OF TRUST)
by
▇'▇▇▇▇▇▇▇▇ Industries - VIRGINIA, INC.,
a Virginia corporation
(Grantor)
to
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ESQ.
(Trustee)
for the benefit of
THE BANK OF NEW YORK
and
GENERAL ELECTRIC CAPITAL CORPORATION
(collectively, Beneficiary)
Dated as of November 13, 2003
===================================================================================================================
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS............................................................................................6
1.1 Defined Terms...................................................................................6
ARTICLE II. GENERAL COVENANTS AND PROVISIONS.....................................................................10
2.1 Grantor Performance of Note Documents and Loan Documents.......................................10
2.2 General Representations, Covenants and Warranties..............................................10
2.3 Intentionally Deleted..........................................................................11
2.4 Insurance; Application of Insurance Proceeds; Application of Eminent Domain Proceeds...........11
2.5 Assignment of Rents............................................................................11
2.6 Indemnification................................................................................12
2.7 Beneficiary Assumes No Secured Obligations.....................................................12
2.8 Further Assurances; Recording of Deed of Trust.................................................13
2.9 Acts of Grantor................................................................................13
2.10 After-Acquired Property........................................................................13
2.11 Reasonable Use and Occupancy...................................................................14
2.12 Hazardous Substances...........................................................................14
2.13 Site...........................................................................................14
2.14 Attorney-In-Fact...............................................................................15
2.15 Beneficiary May Perform; No Obligation.........................................................15
2.16 Security Agreement.............................................................................15
ARTICLE III. REMEDIES............................................................................................17
3.1 Acceleration of Maturity.......................................................................17
3.2 Protective Advances............................................................................17
3.3 Institution of Equity Proceedings..............................................................17
3.4 Beneficiary's Power of Enforcement.............................................................17
3.5 Beneficiary's Right to Enter and Take Possession, Operate and Apply Income.....................18
3.6 Separate Sales.................................................................................20
3.7 Receiver.......................................................................................20
3.8 Suits to Protect the Trust Estate..............................................................20
3.9 Proofs of Claim................................................................................21
3.10 Grantor to Pay Amounts Secured Hereby on Any Default in Payment; Application of Monies
by Beneficiary.................................................................................21
3.11 Delay or Omission; No Waiver...................................................................21
3.12 No Waiver of One Default to Affect Another.....................................................22
3.13 Discontinuance of Proceedings; Position of Parties Restored....................................22
3.14 Remedies Cumulative............................................................................23
3.15 Interest After Event of Default................................................................23
3.16 Foreclosure; Expenses of Litigation............................................................23
3.17 Deficiency Judgments...........................................................................24
3.18 Exculpation of Beneficiary.....................................................................24
ARTICLE IV. RIGHTS AND RESPONSIBILITIES OF TRUSTEE; OTHER PROVISIONS RELATING TO TRUSTEE.........................24
4.1 Exercise of Remedies by Trustee................................................................24
4.2 Rights and Privileges of Trustee...............................................................25
4.3 Resignation or Replacement of Trustee..........................................................25
4.4 Authority of Beneficiary.......................................................................25
4.5 Effect of Appointment of Successor Trustee.....................................................26
4.6 Confirmation of Transfer and Succession........................................................26
4.7 Exculpation....................................................................................26
4.8 Endorsement and Execution of Documents.........................................................26
4.9 Multiple Trustees..............................................................................27
4.10 No Required Action.............................................................................27
4.11 Terms of Trustee's Acceptance..................................................................27
4.12 Intercreditor Agreement........................................................................28
ARTICLE V. GENERAL...............................................................................................28
5.1 Discharge......................................................................................28
5.2 Application of Proceeds........................................................................28
5.3 Extension, Rearrangement or Renewal of Secured Obligations.....................................28
5.4 Forcible Detainer..............................................................................29
5.5 Waiver of Stay or Extension....................................................................29
5.6 Application of Payments........................................................................29
5.7 Amendments; Etc................................................................................30
5.8 ▇▇▇▇▇▇▇; Etc...................................................................................30
5.9 Future Advances................................................................................30
5.10 Compliance With Usury Law......................................................................30
5.11 Notices........................................................................................31
5.12 Severability...................................................................................32
5.13 Survival of Provisions.........................................................................32
5.14 Successions or Assignments.....................................................................32
5.15 Headings Descriptive...........................................................................33
5.16 Entire Agreement...............................................................................33
5.17 Counterparts...................................................................................33
5.18 Governing Law..................................................................................33
5.19 Waiver of Jury Trial...........................................................................33
5.20 Third Party Rights.............................................................................34
5.21 Certain Definitions............................................................................34
EXHIBITS
Exhibit A - Description of Premises
This DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING, dated as of
November 13, 2003 (as amended, amended and restated, supplemented or otherwise modified from time to time, this
"Deed of Trust") by ▇'▇▇▇▇▇▇▇▇ INDUSTRIES - VIRGINIA, INC, a corporation formed under the laws of the Commonwealth
of Virginia ("Grantor"), whose address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., as
trustee ("Trustee"), a resident of Henrico County, VA, whose address is ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Three ▇▇▇▇▇ Center,
Suite 1206, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, for the benefit of the Beneficiary (as hereinafter
defined).
NOTICE: THE FOLLOWING IS PROVIDED SOLELY TO COMPLY WITH THE PROVISIONS OF SECTION 55-58.2 OF
THE CODE OF VIRGINIA OF 1950, AS AMENDED.
THIS IS A CREDIT LINE DEED OF TRUST.
The name of the trustee for the noteholders secured hereby is The Bank of New York (in such
capacity, together with its successors and assigns, "BNY"). The address to which communications to the trustee
for the noteholders are to be sent is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Division. The name of the agent for the lenders secured hereby is General Electric Capital Corporation (in such
capacity, together with its successors and assigns, "GECC"). The address to which communications to the agent
for the lenders are to be sent is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇'▇▇▇▇▇▇▇▇
Account Officer. The maximum aggregate amount of principal to be secured hereby at any time is Fourteen Million,
Seven Hundred and Forty Thousand Dollars ($14,740,000).
RECITALS
A........Grantor has unconditionally guaranteed, to the extent set forth in and otherwise
subject to the Indenture (as hereinafter defined), (a) the due and punctual payment of the principal of, premium
and Additional Interest (as defined in the Indenture), if any, and interest on, the Notes (as defined in the
Indenture), whether at maturity, by acceleration, redemption or otherwise, (b) the due and punctual payment of
interest on overdue principal of and interest on the Notes and (c) the due and punctual performance of all other
obligations of the Company (as hereinafter defined) to the Holders (as defined in the Indenture) or the trustee
all in accordance with the terms of the Indenture (the "BNY Obligations"). As used herein, "Indenture" means that
certain Indenture dated September 29, 2003 by and among ▇'▇▇▇▇▇▇▇▇ Industries, Inc. (the "Company"), the
Guarantors party thereto and The Bank of New York as trustee and the other parties thereto.
B........Holders have agreed to extend certain financial accommodations in accordance with the
Indenture, but in each case only upon the condition, among others, that Grantor secure its obligations under the
Guarantee (as defined in the Indenture) with various items of real and personal property owned by Grantor.
C........Grantor has agreed to execute this Deed of Trust as Grantor will derive substantial
direct and indirect benefits from the financial accommodations made to Company by Holders from time to time
pursuant to the Indenture.
D........Grantor, ▇'▇▇▇▇▇▇▇▇ Furniture Factory Outlet, Inc. ("▇'▇▇▇▇▇▇▇▇ Furniture"), the
Company (collectively, "Borrowers"), certain other subsidiaries and/or affiliates of Borrowers, Lenders (as
defined in the Credit Agreement (as hereinafter defined)) and GECC, in its various capacities set forth therein,
have entered into that certain Credit Agreement dated as of September 29, 2003 (as the same may be amended or
restated from time to time, the "Credit Agreement"), pursuant to which, and subject to the terms and conditions
set forth therein, GECC and the other Lenders have agreed to make Loans (as defined in the Credit Agreement) to
Borrowers pursuant to certain revolving credit facilities made available to Borrowers in accordance with
Section 1 of the Credit Agreement, the proceeds of which would be used to fund the repayment of certain
indebtedness of Borrowers, to provide working capital financing for Borrowers and to provide funds for other
general corporate purposes of Borrowers.
E........This Deed of Trust is given to secure the BNY Obligations and the Obligations (as
defined in the Credit Agreement) under the Credit Agreement (the "GECC Obligations").
F........As set forth more fully below, Grantor intends to secure its payment and performance
of the BNY Obligations and the GECC Obligations with the Trust Estate (as defined below), along with various
other items of personal and real property owned by Grantor.
Agreement
NOW, THEREFORE, to secure the prompt and complete payment when and as due and payable of all of
the BNY Obligations, the GECC Obligations and the other liabilities of Grantor and the other Borrowers to
Beneficiary, the Holders and the other Lenders (collectively, the "Secured Parties"), arising out of or in
connection with the Guarantee, the Credit Agreement and the obligations of Grantor set forth herein subject to
the following limitation (collectively, the "Secured Obligations"); provided, however, that (i) the amount of the
Secured Obligations shall not exceed the Maximum Secured Amount (as hereinafter defined), and (ii) the rights and
remedies of GECC hereunder, advances made by GECC in connection herewith, and the liens, security interests or
charges created hereby in favor of GECC are and shall continue to be subject and subordinate to the rights and
remedies of BNY hereunder, advances made by BNY in connection herewith, and the liens, security interests or
other charges created hereby and in favor of BNY, and in consideration of the covenants contained herein, in the
Guarantee and in the Credit Agreement, Grantor, intending to be legally bound, does hereby grant, bargain, sell,
convey, warrant, assign, transfer, mortgage, pledge, set over and confirm unto Trustee in trust for Beneficiary,
with power of sale, as set forth in this Deed of Trust, for the benefit of Beneficiary and the other Secured
Parties, all of Grantor's estate, right, title, interest, property, claim and demand, now or hereafter arising,
in and to the following property and rights (collectively, the "Trust Estate"):
(a) The interest of Grantor in and to the lands and premises more particularly described
in Exhibit A (the "Premises"), together with all tenements, hereditaments and appurtenances thereto, and
also Grantor's rights in and to (i) any land lying within the right-of-way of any streets, open or
proposed, adjoining the same, (ii) any easements, natural gas pipelines, rights-of-way and rights used
in connection therewith or as a means of access thereto, all easements for ingress and egress and
easements for water and sewage pipelines, running in favor of Grantor, or appurtenant to the Premises,
(collectively, the "Easements"), (iii) any and all sidewalks, alleys, strips and gores of land adjacent
thereto or used in connection therewith and (iv) all water and water rights, ditches and ditch rights,
stock or interest in irrigation companies or districts (the Premises, the Easements and all of the
foregoing being hereinafter collectively referred to as the "Site");
(b) all buildings, structures, fixtures and other improvements now or hereafter erected on
the Site owned by Grantor (collectively, the "Improvements");
(c) all machinery, apparatus, equipment, fittings, fixtures, boilers, turbines and other
articles of personal property, including all goods and all goods which become fixtures, now owned or
hereafter acquired by Grantor and now or hereafter located on, attached to or used in the operation of
or in connection with the Site and/or the Improvements, and all replacements thereof, additions thereto
and substitutions therefor, to the fullest extent permitted by applicable law (collectively, the
"Equipment");
(d) all raw materials, work in process and other materials used or consumed in the
construction of, or now or hereafter located on or used in connection with, the Site, the Improvements
and the Equipment, (including fuel and fuel deposits, now or hereafter located on the Site or elsewhere
or otherwise owned by Grantor) (together with the Equipment, the "Tangible Collateral");
(e) all rights, powers, privileges and other benefits of Grantor (to the extent
assignable) now or hereafter obtained by Grantor from any Governmental Authority, including permits
issued in the name of Grantor, governmental actions/ relating to the ownership, operation, management
and use of the Site, the Improvements and the Equipment, and any improvements, modifications or
additions thereto;
(f) all the lands and interests in lands, tenements and hereditaments hereafter acquired
by Grantor in connection with or appurtenant to the Site, including all leases, subleases, lettings,
occupancy agreements, tenancies and licenses by Grantor as landlord of the Trust Estate or any part
thereof now or hereafter entered into, and all amendments, extensions, renewals and guarantees thereof,
and all security therefor (collectively, the "Leases") and all income, rents, rent equivalents, issues,
profits, revenues (including all oil and gas or other mineral royalties and bonuses), deposits and other
benefits from the Site and the Improvements (including all receivables and other obligations now
existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other
grant of the right of the use and occupancy of property or rendering of services by Grantor or any
operator or manager of the Trust Estate or the commercial space located in the Improvements or acquired
from others) (collectively, the "Rents") and all proceeds from the sale or other disposition of the
Leases and the right to receive and apply the Rents to the payment of the Secured Obligations;
(g) any and all other property in connection with or appurtenant to the Site that may from
time to time, by delivery or by writing of any kind, be subjected to the lien hereof by Grantor or by
anyone on its behalf or with its consent, or which may come into the possession or be subject to the
control of Trustee or Beneficiary pursuant to this Deed of Trust, being hereby collaterally assigned to
Beneficiary and subjected or added to the lien or estate created by this Deed of Trust forthwith upon
the acquisition thereof by ▇▇▇▇▇▇▇, as fully as if such property were now owned by Grantor and were
specifically described in this Deed of Trust and subjected to the lien and security interest hereof; and
Trustee and Beneficiary are hereby authorized to receive any and all such property as and for additional
security hereunder;
(h) all the remainder or remainders, reversion or reversions, rents, revenues, issues,
profits, royalties, income and other benefits derived from any of the foregoing, all of which are hereby
assigned to Beneficiary, who is hereby authorized to collect and receive the same, to give proper
receipts and acquittances therefor and to apply the same in accordance with the provisions of this Deed
of Trust;
(i) all proceeds, products, offspring, rents, profits or receipts, in whatever form,
arising from the Trust Estate, including (i) cash, instruments and other property received, receivable
or otherwise distributed in respect of or in exchange for any or all of the Trust Estate, (ii) the
collection, sale, lease, sublease, concession, exchange, assignment, licensing or other disposition of,
or realization upon, any item or portion of the Trust Estate (including all claims of Grantor against
third parties for loss of, damage to, destruction of, or for proceeds payable under, or unearned
premiums with respect to, policies of insurance in respect of, any of the Trust Estate now existing or
hereafter arising), (iii) any and all proceeds of any insurance, indemnity, warranty or Guarantee
payable to Grantor from time to time with respect to any of the Trust Estate, (iv) any and all payments
(in any form whatsoever) made or due and payable to Grantor from time to time in connection with the
requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Trust Estate by
any Governmental Authority (or any person acting under color of Governmental Authority) and (v) any and
all other amounts from time to time paid or payable under or in connection with any of the Trust Estate;
(j) to the extent assignable, all agreements to which Grantor is a party or which are
assigned to Grantor in any management agreement or any other document and which are executed in
connection with the construction, operation and management of the Improvements located on the Trust
Estate (including agreements for the sale, lease or exchange of goods or other property and/or the
performance of services by it, in each case whether now in existence or hereafter arising or acquired)
as any such agreements have been or may be from time to time amended, supplemented or otherwise modified;
(k) to the extent assignable, all general intangibles, now owned or hereafter acquired by
Grantor, including (i) all obligations or indebtedness owing to Grantor from whatever source arising,
(ii) all unearned premiums accrued or to accrue under all insurance policies for the Trust Estate
obtained by Grantor, all proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or liquidated claims (including proceeds of insurance, condemnation awards, and all rights of
Grantor to refunds of real estate taxes and assessments), (iii) all royalties and license fees and (iv)
all rights or claims in respect of refunds for taxes paid;
(l) all instruments, chattel paper or letters of credit, evidencing, representing, arising
from or existing in respect of, relating to, securing or otherwise supporting the payment of, any of the
Trust Estate (including promissory notes, drafts, bills of exchange and trade acceptances) and chattel
paper obtained by Grantor in connection with the Trust Estate (including all ledger sheets, computer
records and printouts, databases, programs, books of account and files of Grantor relating thereto) and
such notes or other obligations of indebtedness owing to Grantor from whatever source arising, in each
case now owned or hereafter acquired by Grantor and relating to the Trust Estate;
(m) all inventory, whether now or hereafter existing or acquired, all documents
representing the same and all proceeds and products of the same, including all goods, merchandise, raw
materials, work in process and other personal property, wherever located, now or hereafter owned or held
by Grantor for manufacture, processing, the providing of services or sale, use or consumption in the
operation of the Trust Estate (including fuel, supplies and similar items and all substances commingled
therewith or added thereto) and rights and claims of Grantor against anyone who may store or acquire the
same for the account of Grantor, or from whom Grantor may purchase the same; and
(n) to the extent assignable, all permits used in connection with the ownership,
operation, use or occupancy of the Trust Estate, but excluding any of the permits which by their terms
or by operation of law prohibit or do not allow assignment or which would become void solely by virtue
of a security interest being granted therein.
TO HAVE AND TO HOLD said Trust Estate, whether now owned or held or hereafter acquired, unto
Trustee for the benefit of Beneficiary, its successors and assigns, pursuant to the provisions of this Deed of
Trust.
IT IS HEREBY COVENANTED, DECLARED AND AGREED that the lien, security interest or estate created
by this Deed of Trust to secure the payment of the Secured Obligations, both present and future, shall be first,
prior and superior to any lien, security interest, reservation of title or other interest heretofore,
contemporaneously or subsequently suffered or granted by Grantor, its legal representatives, successors or
assigns, except only those, if any, expressly hereinafter referred to or for Permitted Liens (as defined in the
Indenture) or Permitted Encumbrances (as defined in the Credit Agreement) and that the Trust Estate is to be
held, dealt with and disposed of by Beneficiary, upon and subject to the terms, covenants, conditions, uses and
agreements set forth in this Deed of Trust.
PROVIDED ALWAYS, that upon the indefeasible payment in full in cash of the Secured Obligations,
then this Deed of Trust and the estate hereby and therein granted shall cease and be void and shall be reconveyed
as provided herein below.
ARTICLE I.
DEFINITIONS
1.1 Defined Terms. The following terms (whether or not underscored) when used in this Deed of Trust,
including its preamble and recitals, shall have the following meanings:
"Beneficiary" means BNY, as trustee under the Indenture and as beneficiary for itself and the
Holders under the Indenture in such capacity, together with its successors and assigns, for so long as
any of the BNY Obligations remain outstanding; GECC, for itself, as Lender, and as agent for the other
Lenders under the Credit Agreement in such capacity, together with its successors and assigns, for so
long as any of the GECC Obligations remain outstanding; or BNY and GECC, so long as any of the BNY
Obligations and any of the GECC Obligations remain outstanding.
"BNY" has the meaning given in the paragraph immediately preceding the recitals to this Deed of
Trust.
"BNY Obligations" has the meaning given in the recitals to this Deed of Trust.
"Borrowers" has the meaning given in the recitals to this Deed of Trust.
"Company" has the meaning given in the recitals to this Deed of Trust.
"Credit Agreement" has the meaning given in the recitals to this Deed of Trust.
"Default Rate" shall mean the default interest rate described in the second paragraph of
Section 4.01 of the Indenture and/or Section 1.2(d) of the Credit Agreement, as the case may be.
"Easements" has the meaning given in the granting clause to this Deed of Trust.
"Equipment" has the meaning given in the granting clause to this Deed of Trust.
"Environmental Claim" means any and all liabilities, losses, administrative, regulatory or
judicial actions, suits, demands, decrees, claims, liens, judgments, warning notices, notices of
noncompliance or violation, investigations, proceedings, removal or remedial actions or orders, or
damages (foreseeable and unforeseeable, including consequential and punitive damages), penalties, fees,
out-of-pocket costs, expenses, disbursements, attorneys' and/or consultants' fees, relating in any way
to any Hazardous Substance Law or any Permit issued under any such Hazardous Substance Law (hereafter
"Claims"), including (a) any and all Claims by Governmental Authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any applicable Hazardous Substance
Law, and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from Hazardous Substances or arising from alleged
injury or threat of injury to health, safety or the environment.
"Event of Default" means an Event of Default under the Indenture or any other Note Documents
(as defined in the Indenture), so long as any of the BNY Obligations remain outstanding, and an Event of
Default under the Credit Agreement or any other Loan Documents (as defined in the Credit Agreement), so
long as any of the GECC Obligations remain outstanding.
"GECC" has the meaning given in the paragraph immediately preceding the recitals to this Deed
of Trust.
"GECC Obligations" has the meaning given in the recitals to this Deed of Trust.
"Governmental Authority" means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a foreign entity or government.
"Governmental Rule" means any law, rule, regulation, ordinance, order, code interpretation,
treaty, judgment, decree, directive, guidelines, policy or similar form of decision of any Governmental
Authority.
"Grantor" has the meaning given in the preamble to this Deed of Trust.
"Guarantee" has the meaning given in the recitals to this Deed of Trust.
"Hazardous Substances" means (statutory acronyms and abbreviations having the meaning given
them in the definition of "Hazardous Substances Laws") substances defined as "hazardous substances,"
"pollutants" or "contaminants" in Section 101 of the CERCLA; those substances defined as "hazardous
waste," "hazardous materials" or "regulated substances" by the RCRA; those substances designated as a
"hazardous substance" pursuant to Section 311 of the CWA; those substances defined as "hazardous
materials" in Section 103 of the HMTA; those substances regulated as a hazardous chemical substance or
mixture or as an imminently hazardous chemical substance or mixture pursuant to Sections 6 or 7 of the
TSCA; those substances defined as "contaminants" by Section 1401 of the SDWA, if present in excess of
permissible levels; those substances regulated by the Oil Pollution Act; those substances defined as a
pesticide pursuant to Section 2(u) of the FIFRA; those substances defined as a source, special nuclear
or by-product material by Section 11 of the AEA; those substances defined as "residual radioactive
material" by Section 101 of the UMTRCA; those substances defined as "toxic materials" or "harmful
physical agents" pursuant to Section 6 of the OSHA; those substances defined as hazardous wastes in 40
C.F.R. Part 261.3; those substances defined as hazardous waste constituents in 40 C.F.R. Part 260.10,
specifically including Appendix VII and VIII of Subpart D of 40 C.F.R. Part 261; those substances
designated as hazardous substances in 40 C.F.R. Parts 116.4 and 302.4; those substances defined as
hazardous substances or hazardous materials in 49 C.F.R. Part 171.8; those substances regulated as
hazardous materials, hazardous substances, or toxic substances in 40 C.F.R. Part 1910; any chemical,
material, toxin, pollutant, or waste regulated by or in any other Hazardous Substances Laws; and in the
regulations adopted and publications promulgated pursuant to said laws, whether or not such regulations
or publications are specifically referenced herein.
"Hazardous Substances Law" means any of:
(a)......the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended (42 U.S.C. Section 9601 et seq.) ("CERCLA");
(b)......the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.) ("Clean Water
Act" or "CWA");
(c)......the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA");
(d)......the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) ("AEA");
(e)......the Clean Air Act (42 U.S.C. Section 7401 et seq.) ("CAA");
(f)......the Emergency Planning and Community Right to Know Act (42 U.S.C. Section 11001 et
seq.) ("EPCRA");
(g)......the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.)
("FIFRA");
(h)......the Oil Pollution Act of 1990 (33 U.S.C.A. Section 2701 et seq.);
(i)......the Safe Drinking Water Act (42 U.S.C. Sections 300f et seq.) ("SDWA");
(j)......the Surface Mining Control and Reclamation Act of 1974 (30 U.S.C. Sections 1201 et
seq.) ("SMCRA");
(k)......the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.) ("TSCA");
(l)......the Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.) ("HMTA");
(m)......the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. Section 7901 et
seq.) ("UMTRCA");
(n)......the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.) ("OSHA"); and
(o)......all other Federal, state and local Governmental Rules which govern Hazardous
Substances, and the regulations adopted and publications promulgated pursuant to all such foregoing laws.
"Improvements" has the meaning given in the granting clause to this Deed of Trust.
"Indenture" has the meaning given in the recitals to this Deed of Trust.
"Leases" has the meaning given in the granting clause to this Deed of Trust.
"Maximum Secured Amount" shall mean a principal amount not to exceed in the aggregate at any
one time outstanding Fourteen Million, Seven Hundred and Forty Thousand Dollars ($14,740,000), plus
interest thereon, fees due with respect to any such indebtedness, and all costs of collection with
respect thereto, including, without limitation, any costs and expenses incurred by the Trustee or the
Beneficiary in connection with the enforcement of this Deed of Trust.
"Premises" has the meaning given in the granting clause to this Deed of Trust.
"Rents" has the meaning given in the granting clause to this Deed of Trust.
"Secured Obligations" has the meaning given in the granting clause to this Deed of Trust.
"Secured Parties" has the meaning given in the granting clause to this Deed of Trust.
"Site" has the meaning given in the granting clause to this Deed of Trust.
"Tangible Collateral" has the meaning given in the granting clause to this Deed of Trust.
"Trust Estate" has the meaning given in the granting clause to this Deed of Trust.
"Trustee" has the meaning given in the preamble to this Deed of Trust.
"UCC" means the Uniform Commercial Code as the same may, from time to time, be in effect in the
Commonwealth of Virginia.
"UCC Collateral" has the meaning given in Section 2.16.1 to this Deed of Trust.
ARTICLE II.
GENERAL COVENANTS AND PROVISIONS
2.1 Grantor Performance of Note Documents and Loan Documents. Grantor shall perform, observe and comply
with each and every provision hereof, and with each and every provision contained in the Note Documents and the
Loan Documents to which it is a party (insofar as any such provision applies to Grantor) and shall promptly pay
to Beneficiary, when payment shall become due under the Guarantee and/or the Credit Agreement and any and all
amounts payable pursuant thereto and all other sums required to be paid by Grantor under this Deed of Trust and
the other Note Documents and Loan Documents to which it is a party at the time and in the manner provided in such
Note Documents and Loan Documents.
2.2 General Representations, Covenants and Warranties. Grantor represents and warrants, as of the date
hereof, and covenants that:
(a) Grantor has good and marketable title to the Site and the Improvements, free and clear of
all encumbrances except those Permitted Liens and Permitted Encumbrances which are applicable to Grantor
and that it has the right to hold, occupy and enjoy its interest in the Premises and has the power and
lawful authority to grant, bargain, sell, convey, warrant, assign, transfer, mortgage, pledge, set over
and confirm the same as provided herein as permitted by Section 3.5 hereof;
(b) all costs arising from construction of any Improvements, the performance of any labor and
the purchase of all Tangible Collateral and Improvements have been or shall be paid when due, subject to
the right of Company or Grantor to contest the date on which such amounts are due pursuant to the
Indenture, the Guarantee or the Credit Agreement, as applicable; and
(c) this Deed of Trust is a valid and enforceable first lien on and security interest in the
Trust Estate, subject only to those Permitted Liens and Permitted Encumbrances which are applicable to
Grantor, and Grantor shall forever warrant, defend and preserve such title and the validity and priority
of the Deed of Trust and shall forever warrant and defend the same to Beneficiary and Trustee against
the claims of all persons whomsoever.
2.3 Intentionally Deleted.
2.4 Insurance; Application of Insurance Proceeds; Application of Eminent Domain Proceeds.
2.4.1 Grantor shall at its sole expense obtain for, deliver to, assign and maintain for the benefit of
Beneficiary, during the term of this Deed of Trust, insurance policies insuring the Site and liability insurance
policies, all in accordance with the requirements of the Note Documents and the Loan Documents. Grantor shall
pay promptly when due any premiums on such insurance policies and on any renewals thereof. In the event of the
foreclosure of this Deed of Trust or any other transfer of the Premises in extinguishment of the indebtedness and
other sums secured hereby, all right, title and interest of Grantor in and to all casualty insurance policies,
and renewals thereof then in force, shall pass to the purchaser or grantee in connection therewith; provided that
Grantor's obligations shall be reduced accordingly.
2.4.2 All insurance proceeds and all eminent domain proceeds shall be paid and/or shall be applied in
accordance with the provisions of the Note Documents and the Loan Documents.
2.5 Assignment of Rents. Grantor unconditionally and absolutely assigns to Beneficiary all of Grantor's
right, title and interest in and to all Leases and all Rents. This is an absolute assignment to Beneficiary and
not an assignment as security for the performance of the obligations of Grantor under the Note Documents and the
Loan Documents to which it is a party, or any other obligation. Subject to the provisions set forth herein,
Beneficiary shall have the right, power and authority to: (a) notify any person that the Leases have been
assigned to Beneficiary and that all Rents and other obligations are to be paid directly to Beneficiary, whether
or not Beneficiary has commenced or completed foreclosure or taken possession of the Premises; (b) settle
compromise, release, extend the time of payment of, and make allowances, adjustments and discounts of any Rents
or other obligations under the Leases; (c) enforce payment of Rents and other rights under the Leases, prosecute
any action or proceeding, and defend against any claim with respect to rents and Leases; (d) enter upon, take
possession of and operate the Premises, lease all or any part of the Premises; (e) and/or perform any and all
obligations of Grantor under the Leases and exercise any and all rights of Grantor therein contained to the full
extent of Grantor's rights and obligations thereunder, with or without the bringing of any action or the
appointment of a receiver; provided, however, that Grantor shall have a revocable license to exercise these
rights to the exclusions of Beneficiary until the occurrence of an Event of Default. At Beneficiary's request,
Grantor shall deliver a copy of this Deed of Trust to each tenant under a Lease. Grantor irrevocably directs any
tenant, without any requirement for notice to or consent by Grantor, to comply with all demands of Beneficiary
under this Section 2.5 and to turn over to Beneficiary on demand all Rents which it receives. Beneficiary shall
have the right, but not the obligation, to use and apply all Rents received hereunder in such order and such
manner as Beneficiary may reasonably determine in accordance with the Note Documents and the Loan Documents.
Notwithstanding that this is an absolute assignment of the Rents and Leases and not merely the collateral
assignment of, or the grant of a lien or security interest in the Rents and Leases, Beneficiary grants to Grantor
a revocable license to collect and receive the Rents and to retain, use and enjoy such Rents. Such license may
be revoked by Beneficiary only upon the occurrence of any Event of Default. Grantor shall apply any Rents which
it receives to the payments due under and/or the payment of the Secured Obligations, taxes, assessments, water
charges, sewer rents and other governmental charges levied, assessed or imposed against the Premises, insurance
premiums, and other obligations of lessor under the Leases before using such proceeds for any other purpose.
2.6 Indemnification. Grantor shall indemnify Beneficiary in accordance with the applicable provisions of
the Guarantee and the other Note Documents and the Credit Agreement and the other Loan Documents to which it is
party.
2.7 Beneficiary Assumes No Secured Obligations. It is expressly agreed that, anything herein contained to
the contrary notwithstanding, Grantor shall remain obligated under all agreements which are included in the
definition of "Trust Estate" and shall perform all of its obligations thereunder in accordance with the
provisions thereof, and neither Beneficiary nor any of the other Secured Parties shall have any obligation or
liability with respect to such obligations of Grantor, nor shall Beneficiary or any of the other Secured Parties
be required or obligated in any manner to perform or fulfill any obligations or duties of Grantor under such
agreements, or to make any payment or to make any inquiry as to the nature or sufficiency of any payment received
by it, or to present or file any claim or take any action to collect or enforce the payment of any amounts which
have been assigned to Beneficiary hereunder or to which Beneficiary or the other Secured Parties may be entitled
at any time or times.
2.8 Further Assurances; Recording of Deed of Trust. Grantor shall, from time to time, at its expense,
promptly execute and deliver all further instruments and documents, and take all further action, that may be
necessary, in order to perfect and continue the lien and security interest granted hereby and to enable
Beneficiary to obtain the full benefits of the lien and security interest granted or intended to be granted
hereby. Grantor shall keep the Trust Estate free and clear of all Liens, other than Permitted Liens and
Permitted Encumbrances.
2.8.1 Without limiting the generality of the foregoing, Grantor shall execute and record or file this Deed of
Trust and each amendment hereto, and such financing or continuation statements, or amendments thereto, and such
other instruments, endorsements or notices, as may be necessary, in order to perfect and preserve the lien and
security interest granted or purported to be granted hereby. Grantor hereby authorizes Beneficiary to file one
or more financing statements or continuation statements, and amendments thereto, relative to all or any part of
the Trust Estate necessary to preserve or protect the lien and security interest granted hereby without the
signature of Grantor where permitted by law.
2.8.2 Grantor shall pay all filing, registration and recording fees and all refiling, re-registration and
re-recording fees, and all reasonable expenses incident to the execution and acknowledgment of this Deed of
Trust, any assurance, and all federal, state, county and municipal stamp taxes and other taxes, duties, imports,
assessments and charges arising out of or in connection with the execution and delivery of this Deed of Trust,
any agreement supplemental hereto, any financing statements, and any instruments of further assurance.
2.8.3 Grantor shall, promptly upon request, provide to Beneficiary all information and evidence it may
reasonably request concerning the Trust Estate to enable Beneficiary to administer or enforce the provisions of
this Deed of Trust.
2.8.4 Grantor will take all actions within its power to obtain like title to and the right to pledge any other
property at any time hereafter pledged by it to Beneficiary as part of the Trust Estate hereunder.
2.9 Acts of Grantor. Except as provided in or permitted by the Note Documents and the Loan Documents,
Grantor hereby represents and warrants that it has not mortgaged, hypothecated, assigned or pledged and hereby
covenants that it will not mortgage, hypothecate, assign or pledge, so long as this Deed of Trust shall remain in
effect, any of its right, title or interest in and to the Trust Estate or any part thereof or any interest in
Grantor, to anyone other than Beneficiary.
2.10 After-Acquired Property. Any and all of the Trust Estate which is hereafter acquired shall immediately,
without any further conveyance, assignment or act on the part of Grantor or Beneficiary, become and be subject to
the lien and security interest of this Deed of Trust as fully and completely as though specifically described
herein, but nothing contained in this Section 2.10 shall be deemed to modify or change the obligations of Grantor
under Sections 2.8 and 2.9 hereof. If and whenever from time to time Grantor shall hereafter acquire any real
property or interest therein which constitutes or is intended to constitute part of the Trust Estate hereunder,
Grantor shall promptly give notice thereof to Beneficiary and Grantor shall forthwith execute, acknowledge and
deliver to Beneficiary a supplement to this Deed of Trust, in form and substance reasonably satisfactory to
Beneficiary, subjecting the property so acquired to the lien of this Deed of Trust. At the same time, Grantor
shall deliver to Beneficiary an endorsement to the lender's policy of title insurance issued to Beneficiary
insuring the lien of this Deed of Trust which shall insure to Beneficiary, in form and substance satisfactory to
Beneficiary, that the lien of this Deed of Trust as insured under such title insurance policy encumbers such
later acquired property and that Grantor's title to such property meets all of the applicable requirements of the
Note Documents and the Loan Documents with respect to title to Grantor's real property.
2.11 Reasonable Use and Occupancy. In addition to the rights which Beneficiary may have herein, upon the
occurrence of any Event of Default which shall remain uncured, Beneficiary, at its option, may require Grantor to
pay monthly in advance to Beneficiary, or any receiver appointed to collect the rents, the fair and reasonable
rental value for the use and occupation of such part of the Trust Estate as may continue to be occupied by
Grantor or may require Grantor to vacate and surrender possession of the Trust Estate to Beneficiary or to such
receiver and, in default thereof, Grantor may be evicted by summary proceedings or otherwise.
2.12 Hazardous Substances. Grantor and the Trust Estate shall comply with all provisions of the Note
Documents and the Loan Documents relating to Environmental Claims and Hazardous Substances.
2.13 Site
2.13.1 Grantor shall observe all applicable covenants, easements and other restrictions of record with respect
to the Site, the Easements or to any other part of the Trust Estate, in all material respects.
2.13.2 Grantor shall maintain all rights-of-way, easements, grants, privileges, licenses, certificates,
permits, entitlements, and franchises reasonably necessary for the use of the Trust Estate and will not, without
the prior consent of Beneficiary, which consent shall not be unreasonably withheld, consent to any public
restriction (including any zoning ordinance) or private restriction as to the use of the Trust Estate.
2.13.3 Grantor shall not, without the prior written consent of Beneficiary, which consent shall not be
unreasonably withheld, permit any of the fixtures or personalty to be removed at any time from the Premises or
Improvements, except in accordance with the express provisions of the Indenture or the Credit Agreement or unless
Grantor shall replace said removed fixtures or personalty with fixtures or personalty, as the case may be, of
comparable quality.
2.13.4 Grantor shall permit Trustee and Beneficiary, and their respective agents, representatives and
employees, upon reasonable prior notice to Grantor, to inspect the Trust Estate during business hours as provided
in the Guarantee or the Credit Agreement, provided that such inspections shall not unreasonably interfere with
the construction, operation, maintenance, start-up or testing of the Trust Estate.
2.14 Attorney-In-Fact. Grantor hereby constitutes and appoints Beneficiary, acting for and on behalf of
itself and the other Secured Parties and each successor or assign of Grantor and the other Secured Parties, the
true and lawful attorney-in-fact of Grantor, with full power and authority in the place and stead of Grantor,
Beneficiary or otherwise to enforce all rights interests and remedies of Grantor with respect to the collateral,
including the right to:
(a)......ask, demand, collect, receive, receipt for and sue for any and all rents, income and
other sums which are assigned hereunder with full power to endorse the name of Grantor on all instruments given
in payment or in part payment thereof; and
(b)......settle, adjust or compromise any claims thereunder as fully as Grantor itself could do
and in its discretion file any claim or take any action or proceeding, either in its own name or in the name of
Grantor or otherwise, which Beneficiary may deem necessary or appropriate to protect and preserve the right,
title and interest of Beneficiary in and to such rents, income and other sums and the security intended to be
afforded hereby;
provided, however, that Beneficiary shall not exercise the rights set forth in the immediately preceding
subparagraphs (a) and (b) unless an Event of Default has occurred and is continuing. This power of attorney is a
power coupled with an interest and shall be irrevocable.
2.15 Beneficiary May Perform; No Obligation. Upon the occurrence and during the continuation of an Event of
Default, then Beneficiary, among its other rights and remedies, shall have the right, but not the obligation, to
pay, observe or perform the same, in whole or in part, and with such modifications as Beneficiary reasonably
shall deem advisable. To the extent provided in the Note Documents and the Loan Documents, all sums, including
reasonable attorneys fees, so expended or incurred by Beneficiary by reason of the occurrence of such Event of
Default, or by reason of the bankruptcy or insolvency of Grantor, as well as, without limitation, sums expended
or incurred to sustain the lien or estate of this Deed of Trust or its priority, or to protect or enforce any
rights of Beneficiary hereunder, or to recover any of the Secured Obligations, or for repairs, maintenance,
alterations, replacements or improvements thereto or for the protection thereof, or for real estate taxes or
other governmental assessments or charges against any part of the Trust Estate, or premiums for insurance of the
Trust Estate, shall be entitled to the benefit of the lien on the Trust Estate as of the date of the recording of
this Deed of Trust, shall be deemed to be added to and be part of the Secured Obligations secured hereby, and
shall be repaid by Grantor as provided in the Note Documents and the Loan Documents.
2.16 Security Agreement.
2.16.1 This Deed of Trust shall also be a security agreement between Grantor and Beneficiary covering that
portion of the Trust Estate constituting personal property or fixtures (collectively, the "UCC Collateral")
governed by the UCC as the same may be more specifically set forth in any financing statement delivered in
connection with this Deed of Trust, and as further security for the payment and performance of the Secured
Obligations, Grantor hereby grants to Beneficiary a security interest in such portion of the Trust Estate to the
full extent that the Trust Estate may be subject to the UCC. In addition to Beneficiary's other rights
hereunder, Beneficiary shall have all rights of a secured party under the UCC. Grantor shall execute and deliver
to Beneficiary all financing statements and such further assurances to establish, create, perfect (to the extent
the same can be achieved by the filing of a financing statement) and maintain the validity and priority of
Beneficiary's security interests, and Grantor shall bear all reasonable costs thereof, including all UCC
searches. Except as otherwise provided in the Note Documents and the Loan Documents, if Beneficiary should
dispose of any of the Trust Estate comprising the UCC Collateral pursuant to the UCC, ten days' prior written
notice by Beneficiary to Grantor shall be deemed to be reasonable notice; provided, however, Beneficiary may
dispose of such property in accordance with the foreclosure procedures of this Deed of Trust in lieu of
proceeding under the UCC. Beneficiary may, but shall not be obligated, from time to time execute and deliver at
Grantor's expense, all continuation statements, termination statements, amendments, partial releases, or other
instruments relating to all financing statements by and between Grantor and Beneficiary which are reasonably
necessary to establish, create, perfect (to the extent the same can be achieved by the filing of a financing
statement) and maintain the validity and priority of Beneficiary's security interests in the UCC Collateral or
release such liens as the case may be. Except as otherwise provided in the Note Documents and the Loan
Documents, upon the occurrence and during the continuation of an Event of Default, (a) Beneficiary, in addition
to any other rights and remedies which it may have, may exercise immediately and without demand to the extent
permitted by law, any and all rights and remedies granted to a secured party under the UCC including, without
limiting the generality of the foregoing, the right to take possession of the UCC Collateral or any part thereof,
and to take such other measures as Beneficiary may deem reasonably necessary for the care, protection and
preservation of such collateral and (b) upon request or demand of Beneficiary, Grantor shall at its expense,
assemble the UCC Collateral and make it available to Beneficiary at a convenient place acceptable to
Beneficiary. Grantor shall pay to Beneficiary on demand, any and all reasonable expenses, including reasonable
attorneys' fees and disbursements incurred or paid by Beneficiary in protecting the interest in the UCC
Collateral and in enforcing the rights hereunder with respect to such UCC Collateral.
2.16.2 Grantor and the Beneficiary agree, to the extent permitted by law, that: (i) this Deed of Trust upon
recording or registration in the real estate records of the proper office shall constitute a financing statement
filed as a "fixture filing" within the meaning of Sections 9A-334 and 9A-502 of the UCC; (ii) all or a part of
the Trust Estate are or are to become fixtures; and (iii) the addresses of Grantor and Beneficiary are as set
forth on the first page of this Deed of Trust. Further, Grantor authorizes Beneficiary to file financing
statements in Halifax County, Virginia and such other jurisdictions as Beneficiary may require in order to
perfect and provide notice of the liens and security interest created hereunder.
ARTICLE III.
REMEDIES
3.1 Acceleration of Maturity. Upon the occurrence and during the continuation of an Event of Default,
Beneficiary may declare the then outstanding Secured Obligations to be due and payable immediately, and upon such
declaration such principal and interest and other sums shall immediately become due and payable without demand,
presentment, notice or other requirements of any kind (all of which Grantor waives).
3.2 Protective Advances. Upon the occurrence and during the continuation of an Event of Default, then
without thereby limiting Beneficiary's other rights or remedies, waiving or releasing any of Grantor's
obligations, or imposing any obligation on Beneficiary, Beneficiary may either advance any amount owing or
perform any or all actions that Beneficiary considers necessary or appropriate (acting reasonably) to cure such
Event of Default. All such advances shall constitute "Protective Advances" and shall, until repaid, be secured
by this Deed of Trust. No sums advanced or performance rendered by Beneficiary shall cure, or be deemed a waiver
of any Event of Default.
3.3 Institution of Equity Proceedings. Upon the occurrence and during the continuation of an Event of
Default, Beneficiary may institute an action, suit or proceeding in equity for specific performance of this Deed
of Trust, the Guarantee or any other Note Document and the Credit Agreement or any other Loan Document, all of
which shall be specifically enforceable by injunction or other equitable remedy.
3.4 Beneficiary's Power of Enforcement.
3.4.1 Upon the occurrence and during the continuation of an Event of Default, Beneficiary shall be entitled,
at its option and in its sole and absolute discretion, to prepare and record on its own behalf, or to deliver to
Trustee for recording, if appropriate, written declaration of default and demand for sale and written notice of
breach and election to sell (or other statutory notice) to cause the Trust Estate to be sold to satisfy the then
outstanding Secured Obligations, and in the case of delivery to Trustee, Trustee shall cause said notice to be
filed for record.
3.4.2 After the lapse of such time as may then be required by law following the recordation of said notice of
breach and election to sell, and notice of sale having been given as then required by law, Trustee without demand
on Grantor, shall be permitted to sell the Trust Estate or any portion thereof at the time and place fixed by it
in said notice, either as a whole or in separate parcels, and in such order as it may determine, at public
auction to the highest bidder, of cash in lawful money of the United States payable at the time of sale. Trustee
may, for any cause it deems expedient, postpone the sale of all or any portion of said Trust Estate until it
shall be completed and, in every case, notice of postponement shall be given by public announcement thereof at
the time and place last appointed for the sale and from time to time thereafter Trustee may postpone such sale by
public announcement at the time fixed by the preceding postponement; provided, however, that Trustee shall give
Grantor notice of such postponement to the extent required by law. Trustee shall execute and deliver to the
purchaser its deed, bill of sale, or other instrument conveying said property so sold, but without any covenant
or warranty, express or implied. The recitals in such instrument of conveyance of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person, including Beneficiary, may bid at the sale.
3.4.3 After deducting all reasonable costs, fees and expenses of Trustee and of this Deed of Trust, including
costs of evidence of title and reasonable attorneys' fees of Trustee or Beneficiary in connection with a sale,
Trustee shall apply the proceeds of such sale as follows or as otherwise required by applicable law: to payment
of all sums expended under the terms hereof not then repaid, with accrued interest at the Default Rate, if any,
then to the payment of all other sums then secured hereby and the remainder, if any, to the person or persons
legally entitled thereto.
3.4.4 Upon the occurrence and during the continuation of any Event of Default, Beneficiary may, either with or
without entry or taking possession of the Trust Estate, and without regard to whether or not the indebtedness and
other sums secured hereby shall be due and without prejudice to the right of Beneficiary thereafter to bring an
action or proceeding to foreclose or any other action for any Event of Default existing at the time such earlier
action was commenced, proceed by any appropriate action or proceeding: (a) to enforce payment of the Secured
Obligations, to the extent permitted by law, or the performance of any term hereof or any other right; (b) to
foreclose this Deed of Trust in any manner provided by law for the foreclosure of mortgages or deeds of trust on
real property and to sell, as an entirety or in separate lots or parcels, the Trust Estate or any portion thereof
pursuant to the laws of the Commonwealth of Virginia or under the judgment or decree of a court or courts of
competent jurisdiction, and Beneficiary shall be entitled to recover in any such proceeding all reasonable costs
and expenses incident thereto, including reasonable attorneys' fees in such amount as shall be awarded by the
court; (c) to exercise any or all of the rights and remedies available to it under the Note Documents and/or the
Loan Documents; and (d) to pursue any other remedy available to it. Beneficiary shall take action either by such
proceedings or by the exercise of its powers with respect to entry or taking possession, or both, as Beneficiary
may determine.
3.4.5 The remedies described in this Section 3.4 may be exercised with respect to all or any portion of the
Tangible Collateral, either simultaneously with the sale of any real property encumbered hereby or independent
thereof. Beneficiary shall at any time be permitted to proceed with respect to all or any portion of the
Tangible Collateral in any manner permitted by the UCC. ▇▇▇▇▇▇▇ agrees that Beneficiary's inclusion of all or
any portion of the Tangible Collateral in a sale or other remedy exercised with respect to the real property
encumbered hereby, as permitted by the UCC, is a commercially reasonable disposition of such property.
3.5 Beneficiary's Right to Enter and Take Possession, Operate and Apply Income.
3.5.1 Upon the occurrence and during the continuation of an Event of Default, Grantor, upon demand of
Beneficiary, shall forthwith surrender to Beneficiary the actual possession and, if and to the extent permitted
by law, Beneficiary itself, or by such officers or agents as it may appoint, may enter and take possession of all
the Trust Estate including the Tangible Collateral, without liability for trespass, damages or otherwise, and may
exclude Grantor and its agents and employees wholly therefrom and may have joint access with Grantor to the
books, papers and accounts of Grantor.
3.5.2 If an Event of Default has occurred and is continuing and Grantor shall for any reason fail to surrender
or deliver the Trust Estate, including the Tangible Collateral or any part thereof, after Beneficiary's demand,
Beneficiary may obtain a judgment or decree conferring on Beneficiary or Trustee the right to immediate
possession or requiring Grantor to deliver immediate possession of all or part of such property to Beneficiary or
Trustee and Grantor hereby specifically consents to the entry of such judgment or decree. Grantor shall pay to
Beneficiary or Trustee, upon demand, all reasonable costs and expenses of obtaining such judgment or decree, all
such costs and expenses shall, until paid, be secured by the lien of this Deed of Trust.
3.5.3 Upon every such entering upon or taking of possession, Beneficiary or Trustee may hold, store, use,
operate, manage and control the Trust Estate and conduct the business thereof, and, from time to time in its sole
and absolute discretion and without being under any duty to so act:
(a)......make all necessary and proper maintenance, repairs, renewals and replacements thereto
and thereon, and all necessary additions, betterments and improvements thereto and thereon and purchase or
otherwise acquire fixtures, personalty and other property in connection therewith;
(b)......insure or keep the Trust Estate insured;
(c)......manage and operate the Trust Estate and exercise all the rights and ▇▇▇▇▇▇ of Grantor
in their name or otherwise with respect to the same;
(d)......enter into agreements with others to exercise the powers herein granted Beneficiary or
Trustee, all as Beneficiary or Trustee from time to time reasonably may determine; and shall apply the monies so
received by Beneficiary or Trustee in such priority as provided by the Note Documents and/or the Loan Documents
to (i) the payment of interest and principal due and payable to the Beneficiary, (ii) the deposits for taxes and
assessments and insurance premiums due, (iii) the cost of insurance, taxes, assessments and other proper charges
upon the Trust Estate or any part thereof; (iv) the reasonable expenses and disbursements of the agents,
attorneys and other representatives of Beneficiary or Trustee as allowed under this Deed of Trust; and (v) any
other charges or costs required to be paid by Grantor under the terms of the Note Documents and/or the Loan
Documents; and
(e)......rent or sublet the Trust Estate or any portion thereof for any purpose permitted by
this Deed of Trust.
3.5.4 Beneficiary or Trustee shall surrender possession of the Trust Estate, including Tangible Collateral, to
Grantor (a) as may be required by law or court order, or (b) when all amounts under any of the terms of the Note
Documents and/or the Loan Documents, including this Deed of Trust, shall have been paid current and all Events of
Default have been cured or waived. The same right of taking possession, however, shall exist if any subsequent
Event of Default shall occur and be continuing.
3.6 Separate Sales. Upon the occurrence and continuance of an Event of Default, to the extent permitted by
law or Governmental Rule, the Trust Estate may be sold in one or more parcels and in such manner and order as
Trustee, in its sole discretion, may elect, it being expressly understood and agreed that the right of sale
arising out of any Event of Default shall not be exhausted by any one or more sales.
3.7 Receiver. Upon the occurrence and during the continuation of an Event of Default, Beneficiary, to the
extent permitted by law, and without regard to the value, adequacy or occupancy of the security for the
indebtedness and other sums secured hereby, shall be entitled as a matter of right if it so elects to the
appointment of a receiver to enter upon and take possession of the Trust Estate and to collect all earnings,
revenues and receipts and apply the same as the court may direct, and such receiver may be appointed by any court
of competent jurisdiction upon application by Beneficiary. To the extent permitted by law or Governmental Rule,
Beneficiary may have a receiver appointed without notice to Grantor or any third party, and Beneficiary may waive
any requirement that the receiver post a bond. To the extent permitted by law or Governmental Rule, Beneficiary
shall have the power to designate and select the Person who shall serve as the receiver and to negotiate all
terms and conditions under which such receiver shall serve. To the extent permitted by law or Governmental Rule,
any receiver appointed on Beneficiary's behalf may be an affiliate of Beneficiary. The reasonable expenses,
including receiver's fees, reasonable attorneys' fees and costs, incurred pursuant to the powers herein contained
shall be secured by this Deed of Trust. The right to enter and take possession of and to manage and operate the
Trust Estate and to collect all earnings, revenues and receipts, whether by a receiver or otherwise, shall be
cumulative to any other right or remedy available to Beneficiary under this Deed of Trust, the other Note
Documents and/or the Loan Documents or otherwise available to Beneficiary and may be exercised concurrently
therewith or independently thereof, but such rights shall be exercised in a manner which is otherwise in
accordance with and consistent with the Note Documents and/or the Loan Documents. Beneficiary shall be liable to
account only for such earnings, revenues and receipts (including security deposits) actually received by
Beneficiary, whether received pursuant to this section or any other provision hereof. Notwithstanding the
appointment of any receiver or other custodian, Beneficiary shall be entitled as pledgee to the possession and
control of any cash, deposits, or instruments at the time held by, or payable or deliverable under the terms of
this Deed of Trust to, Beneficiary.
3.8 Suits to Protect the Trust Estate. Upon the occurrence and continuance of an Event of Default,
Beneficiary shall have the power and authority to institute and maintain any suits and proceedings as
Beneficiary, in its sole and absolute discretion, may deem advisable (acting reasonably) (a) to prevent any
impairment of the Trust Estate by any acts which may be unlawful or in violation of this Deed of Trust, (b) to
preserve or protect its interest in the Trust Estate, or (c) to restrain the enforcement of or compliance with
any legislation or other legal requirement that may be unconstitutional or otherwise invalid, if the enforcement
of or compliance with such enactment, rule or order might impair the security hereunder or be prejudicial to
Beneficiary's interest.
3.9 Proofs of Claim. In the case of any receivership, insolvency, reorganization, arrangement, adjustment,
composition or other judicial proceedings affecting Grantor, any affiliate or any guarantor, co-maker or endorser
of any of Grantor's obligations, its creditors or its property, Beneficiary, to the extent permitted by law,
shall be entitled to file such proofs of claim or other documents as it may deem be necessary or advisable in
order to have its claims allowed in such proceedings for the entire amount due and payable by Grantor under the
Note Documents and/or the Loan Documents, at the date of the institution of such proceedings, and for any
additional amounts which may become due and payable by Grantor after such date.
3.10 Grantor to Pay Amounts Secured Hereby on Any Default in Payment; Application of Monies by Beneficiary.
(a) In case of a foreclosure sale of all or any part of the Trust Estate and of the application of the
proceeds of sale to the payment of the sums secured hereby, to the extent permitted by law, Beneficiary shall be
entitled to enforce payment from Grantor of any additional amounts then remaining due and unpaid hereunder or
under the Guarantee or any other Note Document and/or the Credit Agreement or any other Loan Document to which it
is a party and to recover judgment against Grantor for any portion thereof remaining unpaid, with interest at the
Default Rate.
(b) Grantor hereby agrees to the extent permitted by law, that no recovery of any such judgment by
Beneficiary or other action by Beneficiary and no attachment or levy of any execution upon any of the Trust
Estate or any other property shall in any way affect the Lien and security interest of this Deed of Trust upon
the Trust Estate or any part thereof or any Lien, rights, powers or remedies of Beneficiary hereunder, but such
Lien, rights, powers and remedies shall continue unimpaired as before.
3.11 Delay or Omission; No Waiver. No delay or omission of Beneficiary or the other Secured Parties to
exercise any right, power or remedy upon any Event of Default shall exhaust or impair any such right, power or
remedy or shall be construed to waive any such Event of Default or to constitute acquiescence therein. Every
right, power and remedy given to Beneficiary whether contained herein or in the other Note Documents and/or
other Loan Documents or otherwise available to Beneficiary may be exercised from time to time and as often as may
be deemed expedient by Beneficiary.
3.12 No Waiver of One Default to Affect Another. No waiver of any Event of Default hereunder shall extend to
or affect any subsequent or any other Event of Default then existing, or impair any rights, powers or remedies
consequent thereon. If Beneficiary (a) grants forbearance or an extension of time for the payment of any sums
secured hereby; (b) takes other or additional security for the payment thereof; (c) waives or does not exercise
any right granted in this Deed of Trust, any other Note Document or any other Loan Document; (d) releases any
part of the Trust Estate from the lien or security interest of this Deed of Trust or any other instrument
securing the Secured Obligations; (e) consents to the filing of any map, plat or replat of the Premises; (f)
consents to the granting of any easement on the Premises; or (g) makes or consents to any agreement changing the
terms of this Deed of Trust, any other Note Document or any other Loan Document, subordinating the lien or any
charge hereof, no such act or omission shall release, discharge, modify, change or affect the liability under
this Deed of Trust, any other Note Document or any other Loan Document, or otherwise of Grantor, or any
subsequent purchaser of the Trust Estate or any part thereof or any maker, co-signer, surety or guarantor with
respect to any other matters not addressed by such act or omission. No such act or omission shall preclude
Beneficiary from exercising any right, power or privilege herein granted or intended to be granted in case of any
Event of Default then existing or of any subsequent Event of Default, nor, except as otherwise expressly
provided in an instrument or instruments executed by Beneficiary, shall the lien or security interest of this
Deed of Trust be altered thereby, except to the extent expressly provided in such acts or omissions. In the
event of the sale or transfer by operation of law or otherwise of all or any part of the Trust Estate,
Beneficiary, without notice to any person, firm or corporation, is hereby authorized and empowered to deal with
any such vendee or transferee with reference to the Trust Estate or the indebtedness secured hereby, or with
reference to any of the terms or conditions hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any of the liabilities or undertakings
hereunder, or waiving its right to declare such sale or transfer an Event of Default as provided herein.
Notwithstanding anything to the contrary contained in this Deed of Trust, any other Note Document or any other
Loan Document, (i) in the case of any non-monetary Event of Default, Beneficiary may continue to accept payments
due hereunder without thereby waiving the existence of such or any other Event of Default and (ii) in the case of
any monetary Event of Default, Beneficiary may accept partial payments of any sums due hereunder without thereby
waiving the existence of such Event of Default if the partial payment is not sufficient to completely cure such
Event of Default. Notwithstanding the foregoing, in the event of a conflict between this Section 3.12 and the
terms of the Indenture or the Credit Agreement, the terms of the Indenture shall control so long as any of the
BNY Obligations remain outstanding and the terms of the Credit Agreement shall control so long as any of the GECC
Obligations remain outstanding; provided further, however, that in the event of a conflict between the terms of
the Indenture and the terms of the Credit Agreement, the terms of the Indenture shall control so long as any of
the BNY Obligations remain outstanding.
3.13 Discontinuance of Proceedings; Position of Parties Restored. If Beneficiary shall have proceeded to
enforce any right or remedy under this Deed of Trust by foreclosure, entry of judgment or otherwise and such
proceedings shall have been discontinued or abandoned for any reason, or such proceedings shall have resulted in
a final determination adverse to Beneficiary, then and in every such case Grantor and Beneficiary shall be
restored to their former positions and rights hereunder, and all rights, powers and remedies of Beneficiary shall
continue as if no such proceedings had occurred or had been taken, except in the case of a final, unappealable
judgment from a court of competent jurisdiction that the Secured Obligations and all other obligations of Grantor
under the Note Documents and Loan Documents to which it is a party have been paid and discharged in full.
3.14 Remedies Cumulative. No right, power or remedy, including remedies with respect to any security for the
Secured Obligations, conferred upon or reserved to Beneficiary by this Deed of Trust, any other Note Document or
any other Loan Document is exclusive of any other right, power or remedy, but each and every such right, power
and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given
hereunder, under any other Note Document or any other Loan Document, now or hereafter existing at law, in equity
or by statute, and Beneficiary shall be entitled to resort to such rights, powers, remedies or security as
Beneficiary shall in its sole and absolute discretion deem advisable (reasonably exercised).
3.15 Interest After Event of Default. Subject to the provisions of the Credit Agreement, if an Event of
Default shall have occurred under the Credit Agreement and shall be continuing, all sums due GECC which remain
outstanding and unpaid under the Loan Documents, including this Deed of Trust, shall, at GECC's option, bear
interest at the Default Rate until such Event of Default has been cured. ▇▇▇▇▇▇▇'s obligation to pay such
interest shall be secured by this Deed of Trust.
3.16 Foreclosure; Expenses of Litigation. If Trustee forecloses, reasonable attorneys' fees for services in
the supervision of said foreclosure proceeding shall be allowed to Trustee and Beneficiary as part of the
foreclosure costs. In the event of foreclosure of the lien hereof, there shall be allowed and included as
additional indebtedness all reasonable expenditures and expenses which may be paid or incurred by or on behalf of
Beneficiary for attorneys' fees, appraiser's fees, outlays for documentary and expert evidence, stenographers'
charges, publication costs, and costs (which may be estimated as to items to be expended after foreclosure sale
or entry of the decree) of procuring all such abstracts of title, title searches and examinations, title
insurance policies and endorsements, and similar data and assurances with respect to title as Beneficiary may
deem reasonably necessary either to prosecute such suit or to evidence to a bidder at any sale which may be had
pursuant to such decree the true condition of the title to or the value of the Trust Estate or any portion
thereof. All expenditures and expenses of the nature in this section mentioned, and such expenses and fees as
may be incurred in the protection of the Trust Estate and the maintenance of the lien and security interest of
this Deed of Trust, including the reasonable fees of any attorney employed by Beneficiary in any litigation or
proceeding affecting this Deed of Trust, any other Note Document or any other Loan Document, the Trust Estate or
any portion thereof, including civil, probate, appellate and bankruptcy proceedings, or in preparation for the
commencement or defense of any proceeding or threatened suit or proceeding, shall be immediately due and payable
by Grantor (and if in connection with an Event of Default under the Credit Agreement, with interest thereon at
the Default Rate) and shall be secured by this Deed of Trust.
3.17 Deficiency Judgments. Recourse against Grantor, Company, the other Borrowers and their respective
affiliates, members, partners, stockholders, officers, directors and employees under this Deed of Trust shall be
limited to the extent provided in the Indenture and the Credit Agreement. Subject to the Indenture and the
Credit Agreement, if after foreclosure of this Deed of Trust or Trustee's sale hereunder, there shall remain any
deficiency with respect to any amounts payable under the Note Documents or the Loan Documents, including
hereunder, or any amounts secured hereby, and Beneficiary shall institute any proceedings to recover such
deficiency or deficiencies, all such amounts shall continue to bear interest at the Default Rate. Subject to the
Indenture and the Credit Agreement, Grantor waives any defense to Beneficiary's recovery against Grantor of any
deficiency after any foreclosure sale of the Trust Estate. Subject to the Indenture and the Credit Agreement, to
the extent permitted by law, Grantor expressly waives any defense or benefits that may be derived from any
statute granting Grantor any defense to any such recovery by Beneficiary. Subject to the Indenture and the Credit
Agreement, in addition, Beneficiary and Trustee shall be entitled to recovery of all of their reasonable costs
and expenditures (including any court imposed costs) in connection with such proceedings, including their
reasonable attorneys' fees, appraisal fees and the other costs, fees and expenditures referred to in Section 3.16
above. This provision shall survive any foreclosure or sale of the Trust Estate, any portion thereof and/or the
extinguishment of the lien hereof.
3.18 Exculpation of Beneficiary. The acceptance by Beneficiary of the assignment contained herein with all
of the rights, powers, privileges and authority created hereby shall not, prior to entry upon and taking
possession of the Trust Estate by Beneficiary, be deemed or construed to make Beneficiary a "mortgagee in
possession"; nor thereafter or at any time or in any event obligate Beneficiary to appear in or defend any action
or proceeding relating to the Trust Estate, nor shall Beneficiary, prior to such entry and taking, be liable in
any way for any injury or damage to person or property sustained by any Person in or about the Trust Estate,
except to the extent caused by the gross negligence or willful misconduct of Beneficiary.
ARTICLE IV.
RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE
Notwithstanding anything to the contrary in this Deed of Trust, Grantor and Beneficiary agree
as follows.
4.1 Exercise of Remedies by Trustee. To the extent that this Deed of Trust or applicable law authorizes or
empowers Beneficiary to exercise any remedies set forth in Article III hereof or otherwise, or perform any acts
in connection therewith, Trustee (but not to the exclusion of Beneficiary unless so required under the law of the
Commonwealth of Virginia) shall have the power to exercise any or all such remedies, and to perform any acts
provided for in this Deed of Trust in connection therewith, all for the benefit of Beneficiary and on
Beneficiary's behalf in accordance with applicable law of the Commonwealth of Virginia. In connection therewith,
Trustee: (a) shall not exercise, or waive the exercise of, any of Beneficiary's remedies (other than any rights
or Trustee to any indemnity or reimbursement), except at Beneficiary's request, and (b) shall exercise, or waive
the exercise of, any or all of Beneficiary's remedies at Beneficiary's request, and in accordance with
Beneficiary's directions as to the manner of such exercise or waiver. Trustee may, however, decline to follow
Beneficiary's request or direction if Trustee shall be advised by counsel that the action or proceeding, or
manner thereof, so directed may not lawfully be taken or waived.
4.2 Rights and Privileges of Trustee. To the extent that this Deed of Trust requires Grantor to reimburse
Beneficiary for any expenditures Beneficiary may incur, Trustee shall be entitled to the same rights to
reimbursement of expenses as Beneficiary, subject to such limitations and conditions as would apply in the case
of Beneficiary. To the extent that this Deed of Trust negates or limits Beneficiary's liability as to any
matter, Trustee shall be entitled to the same negation or limitation of liability. To the extent that Grantor,
pursuant to this Deed of Trust, appoints Beneficiary as ▇▇▇▇▇▇▇'s attorney in fact for any purpose, Beneficiary
or (when so instructed by Beneficiary) Trustee shall be entitled to act on ▇▇▇▇▇▇▇'s behalf without joinder or
confirmation by the other.
4.3 Resignation or Replacement of Trustee. Trustee may resign by an instrument in writing addressed to
Beneficiary, and Trustee may be removed at any time with or without cause (i.e., in Beneficiary's sole and
absolute discretion) by an instrument in writing executed by Beneficiary. In case of the death, resignation,
removal or disqualification of Trustee or if for any reason Beneficiary shall deem it desirable to appoint a
substitute, successor or replacement Trustee to act instead of Trustee originally named (or in place of any
substitute, successor or replacement Trustee), then Beneficiary shall have the right and is hereby authorized and
empowered to appoint a successor, substitute or replacement Trustee, and, if preferred, several substitute
trustees in succession, without any formality other than appointment and designation in writing executed by
Beneficiary, which instrument shall be recorded if required by the law of the Commonwealth of Virginia. The law
of the Commonwealth of Virginia shall govern the qualifications of any Trustee. The authority conferred upon
Trustee by this Deed of Trust shall automatically extend to any and all other successor, substitute and
replacement Trustee(s) successively until the Secured Obligations have been paid in full or the Trust Estate has
been sold hereunder or released in accordance with the provisions of the Note Documents and the Loan Documents.
Beneficiary's written appointment and designation of any Trustee shall be full evidence of Beneficiary's right
and authority to make the same and of all facts therein recited. No confirmation, authorization, approval or
other action by Grantor shall be required in connection with any resignation or other replacement of Trustee.
4.4 Authority of Beneficiary. If Beneficiary is a banking corporation, state banking corporation or a
national banking association and the instrument of appointment of any successor or replacement Trustee is
executed on Beneficiary's behalf by an officer of such corporation, state banking corporation or national banking
association, then such appointment may be executed by any authorized officer or agent of Beneficiary and such
appointment shall be conclusively presumed to be executed with authority and shall be valid and sufficient
without proof of any action by the board of directors or any superior officer of Beneficiary.
4.5 Effect of Appointment of Successor Trustee. Upon the appointment and designation of any successor,
substitute or replacement Trustee, Trustee's entire estate and title in the Trust Estate shall vest in the
designated successor, substitute or replacement Trustee. Such successor, substitute or replacement Trustee shall
thereupon succeed to and shall hold, possess and execute all the rights, powers, privileges, immunities and
duties herein conferred upon Trustee. All references herein to Trustee shall be deemed to refer to Trustee
(including any successor or substitute appointed and designated as herein provided) from time to time acting
hereunder.
4.6 Confirmation of Transfer and Succession. Any new Trustee appointed pursuant to any of the provisions
hereof shall, without any further act, deed or conveyance, become vested with all the estates, properties,
rights, powers and trusts of his predecessor in the rights hereunder with like effect as if originally named as
Trustee herein; but nevertheless, upon the written request of Beneficiary or of any successor, substitute or
replacement Trustee, any former Trustee ceasing to act shall execute and deliver an instrument transferring to
such successor, substitute or replacement Trustee all of the right, title, estate and interest in the Trust
Estate of Trustee so ceasing to act, together with all the rights, powers, privileges, immunities and duties
herein conferred upon Trustee, and shall duly assign, transfer and deliver all properties and moneys held by said
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to said successor, substitute or replacement Trustee.
4.7 Exculpation. Trustee shall not be liable for any error of judgment or act done by Trustee in good
faith, or otherwise be responsible or accountable under any circumstances whatsoever, except for Trustee's gross
negligence, willful misconduct or knowing violation of law. Trustee shall not be personally liable in case of
entry by him, or anyone entering by virtue of the powers herein granted him, upon the Trust Estate for debts
contracted or liability or damages incurred in the management or operation of the Trust Estate. Trustee shall
have the right to rely on any instrument, document or signature authorizing or supporting any action taken or
proposed to be taken by it hereunder, believed by it in good faith to be genuine. All moneys received by Trustee
shall, until used or applied as herein provided, be held in trust for the purposes for which they were received,
but need not be segregated in any manner from any other moneys (except to the extent required by law). Trustee
shall be under no liability for interest on any moneys received by it hereunder.
4.8 Endorsement and Execution of Documents. Upon Beneficiary's written request, Trustee shall, without
liability or notice to Grantor, execute, consent to, or join in any instrument or agreement in connection with or
necessary to effectuate the purposes of the Note Documents and the Loan Documents. Grantor hereby irrevocably
designates Trustee as its attorney in fact to execute, acknowledge and deliver, on ▇▇▇▇▇▇▇'s behalf and in
Grantor's name, all instruments or agreements reasonably necessary to implement any provision(s) of this Deed of
Trust or to further perfect the lien created by this Deed of Trust on the Trust Estate. This power of attorney
shall be deemed to be coupled with an interest and shall survive any disability of Grantor.
4.9 Multiple Trustees. If Beneficiary appoints multiple trustees, then any Trustee, individually, may
exercise all powers granted to Trustee under this instrument, without the need for action by any other Trustee(s).
4.10 No Required Action. Trustee shall not be required to take any action under this Deed of Trust or to
institute, appear in or defend any action, suit or other proceeding in connection therewith where in his opinion
such action will be likely to involve him in expense or liability, unless requested so to do by a written
instrument signed by Beneficiary and, if Trustee so requests, unless Trustee is tendered security and indemnity
satisfactory to him against any and all costs, expense and liabilities arising therefrom. Trustee shall not be
responsible for the execution, acknowledgment or validity of the Note Documents and the Loan Documents, or for
the proper authorization thereof, or for the sufficiency of the lien and security interest purported to be
created hereby, and makes no representation in respect thereof or in respect of the rights, remedies and
recourses of Beneficiary.
4.11 Terms of Trustee's Acceptance. Trustee accepts the trust created by this Deed of Trust upon the
following terms and conditions:
(a) Trustee may exercise any of its powers through appointment of attorney(s) in fact or agents;
(b) Trustee shall be under no obligation to take any action upon any Event of Default unless furnished
security or indemnity, in form satisfactory to Trustee, against costs, expenses, and liabilities that Trustee may
incur;
(c) Grantor shall reimburse Trustee, as part of the Secured Obligations secured hereunder, for all
reasonable disbursements and expenses (including reasonable legal fees and expenses) incurred by reason of or
arising from an Event of Default and as provided for in this Deed of Trust; and
(d) upon the indefeasible payment in full in cash of the Secured Obligations, this Deed of Trust shall cease
and terminate and thereafter be of no further force or effect and Trustee shall release this Deed of Trust
without charge to Grantor. Grantor shall pay all costs of recordation, if any.
(e) Trustee may consult with counsel of its selection with respect to any questions relating to its duties
and responsibilities and the advice or opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
4.12 Intercreditor Agreement. Reference is made to that certain Intercreditor Agreement, dated as of
September 29, 2003, by and among GECC, BNY, the Company, ▇'▇▇▇▇▇▇▇▇ Furniture and Grantor, in their various
respective capacities as set forth therein (the "Intercreditor Agreement"). Notwithstanding anything contained
in this Deed of Trust to the contrary, the rights, benefits and priorities afforded under this Deed of Trust, as
between BNY and GECC, shall be governed and controlled by the provisions of the Intercreditor Agreement, as the
same may be amended, restated, supplemented or otherwise modified, renewed or replaced from time to time,
including, and without limitation, the enforcement of the rights and remedies afforded the Trustee and
Beneficiary under this Deed of Trust.
ARTICLE V.
GENERAL
5.1 Discharge. Upon the indefeasible payment in full in cash of the Secured Obligations, (a) this Deed of
Trust shall cease and terminate and this Deed of Trust and the lien and security interest created hereby shall be
of no further force and effect, (b) Grantor shall be released from the covenants, agreements and obligations of
Grantor contained in this Deed of Trust and all right, title and interest in and to the Trust Estate shall revert
to Grantor (c) Beneficiary and Trustee, shall promptly execute a deed of reconveyance and such other documents as
may be reasonably necessary to evidence the discharge and satisfaction of this Deed of Trust and the release of
Grantor from its obligations hereunder.
5.2 Application of Proceeds. Upon the occurrence and during the continuation of an Event of Default, the
proceeds of any sale of, or other realization upon, all or any part of the Trust Estate shall be applied in
accordance with the applicable provisions of the Indenture, the Credit Agreement or as otherwise required by
applicable law. Company and/or the other Borrowers shall remain liable for any deficiency.
5.3 Extension, Rearrangement or Renewal of Secured Obligations. It is expressly agreed that any of the
Secured Obligations at any time secured hereby may be from time to time extended for any period, or with the
consent of Grantor rearranged or renewed, and that any part of the security herein described, or any other
security for the Secured Obligations, may be waived or released, without altering, varying or diminishing the
force, effect or lien or security interest of this Deed of Trust; and the lien and security interest granted by
this Deed of Trust shall continue as a prior lien and security interest on all of the Trust Estate not expressly
so released, until the Secured Obligations are fully paid and this Deed of Trust is terminated in accordance with
the provisions hereof; and no other security now existing or hereafter taken to secure the payment of the Secured
Obligations or any part thereof or the performance of any obligation or liability of Grantor whatever shall in
any manner impair or affect the security given by this Deed of Trust; and all security for the payment of the
Secured Obligations or any part thereof and the performance of any obligation or liability shall be taken,
considered and held as cumulative.
5.4 Forcible Detainer. Grantor agrees for itself and all Persons (as defined in the Indenture and the
Credit Agreement) claiming by, through or under it, that subsequent to foreclosure hereunder in accordance with
this Deed of Trust and applicable law if Grantor shall hold possession of the Trust Estate or any part thereof,
Grantor or the Persons so holding possession shall be guilty of trespass; and any such tenant failing or refusing
to surrender possession upon demand shall be guilty of forcible detainer and shall be liable to such purchasers
for reasonable rental on said premises, and shall be subject to eviction and removal in accordance with law.
5.5 Waiver of Stay or Extension. To the extent permitted to be waived by law, Grantor shall not at any time
insist upon or plead or in any manner whatever claim the benefit or advantage of any stay, extension or
moratorium law now or at any time hereafter in force in any locality where the Trust Estate or any part thereof
may or shall be situated, nor shall Grantor claim any benefit or advantage from any law now or hereafter in force
providing for the valuation or appraisement of the Trust Estate or any part thereof prior to any sale thereof to
be made pursuant to any provision of this Deed of Trust or to a decree of any court of competent jurisdiction,
nor after any such sale shall Grantor claim or exercise any right conferred by any law now or at any time
hereafter in force to redeem the Trust Estate so sold or any part thereof; and Grantor hereby expressly waives
all benefit or advantage of any such law or laws and the appraisement of the Trust Estate or any part thereof,
and covenants that Grantor shall not hinder or delay the execution of any power herein granted and delegated to
Beneficiary but that Grantor shall permit the execution of every such power as though no such law had been made.
5.6 Application of Payments. In the event that any part of the Secured Obligations cannot lawfully be
secured hereby, or in the event that the lien and security interest hereof cannot be lawfully enforced to pay any
part of the Secured Obligations, or in the event that the lien or security interest created by this Deed of Trust
shall be invalid or unenforceable as to any part of the Secured Obligations, then all payments on the Secured
Obligations shall be deemed to have been first applied to the complete payment and liquidation of that part of
the Secured Obligations which is not secured by this Deed of Trust and the unsecured portion of the Secured
Obligations shall be completely paid and liquidated prior to the payment and liquidation of the remaining secured
portion of the Secured Obligations.
5.7 Amendments; Etc. This Deed of Trust may not be amended, modified or supplemented, except in a writing
signed by each of the parties hereto and otherwise in accordance with the provisions of Article 9 of the
Indenture and Section 9.2 of the Credit Agreement.
5.8 Renewal; Etc. Beneficiary may at any time and from time to time renew or extend this Deed of Trust, or
alter or modify the same in any way, or waive any of the terms, covenants or conditions hereof in whole or in
part and may release any portion of the Trust Estate or any other security, and grant such extensions and
indulgences in relation to the Secured Obligations as Beneficiary may determine, without the consent of any
junior lienor or encumbrancer and without any obligation to give notice of any kind thereto and without in any
manner affecting the priority of the lien and security interest hereof on any part of the Trust Estate; provided
that nothing in this Section 5.8 shall grant Beneficiary the right to alter or modify the Deed of Trust without
the consent of the Grantor unless otherwise specifically permitted in this Deed of Trust.
5.9 Future Advances. This Deed of Trust is executed and delivered to secure, among other things, ▇▇▇▇▇▇▇'s
Guarantee of future advances under the Indenture. It is understood and agreed that this Deed of Trust secures
Grantor's Guarantee of present and future advances made pursuant to the Indenture and present and future advances
made pursuant to the Credit Agreement and that the lien of such future advances shall relate to the date of this
Deed of Trust.
5.10 Compliance With Usury Law. The Note Documents and the Loan Documents are intended to be performed in
accordance with, and only to the extent permitted by, all applicable Governmental Rules. It is expressly
stipulated and agreed to be the intent of Grantor and Beneficiary at all times to comply with the applicable
Virginia law governing the maximum rate or amount of interest payable on or in connection with the Secured
Obligations (or applicable United States federal law to the extent that it permits Beneficiary to contract for,
charge, take, reserve or receive a greater amount of interest than under Virginia law). If the applicable law is
ever judicially interpreted so as to render usurious any amount called for under the Note Documents and the Loan
Documents, or contracted for, charged, taken, reserved or received with respect to the extension of credit
evidenced by the Note Documents and the Loan Documents or if acceleration of the maturity of the Secured
Obligations or if any prepayment by Grantor results in Grantor having paid any interest in excess of that
permitted by law, then it is Grantor's and Beneficiary's express intent that all excess amounts theretofore
collected by Beneficiary be credited on the principal balance due under the Note Documents and the Loan Documents
(or, if the Note Documents and the Loan Documents have been or would thereby be paid in full, refunded to
Grantor), and the provisions of the Note Documents and the Loan Documents immediately be deemed reformed and the
amounts thereafter collectible thereunder reduced, without the necessity of the execution of any new document, so
as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for
hereunder and thereunder. The right to accelerate maturity of Secured Obligations does not include the right to
accelerate any interest which has not otherwise accrued on the date of such acceleration, and Beneficiary does
not intend to collect any unearned interest in the event of acceleration. All sums paid or agreed to be paid to
Beneficiary for the use, forbearance or retention of the Secured Obligations shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full term of the Secured Obligations
until payment in full so that the rate or amount of interest on account of the Secured Obligations does not
exceed the applicable usury ceiling.
5.11 Notices. All notices required or permitted under the terms and provisions hereof shall be in writing
and any such notice shall be effective if given in accordance with the provisions of Section 14.02 of the
Indenture and Section 9.3 of the Credit Agreement and, if to Grantor, shall be given at the following address:
▇'▇▇▇▇▇▇▇▇ Industries - Virginia, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and, if to BNY, shall be given at the following address:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇/5707
and, if to GECC, shall be given at the following address:
General Electric Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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Attn: ▇'▇▇▇▇▇▇▇▇ Account Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
General Electric Capital Corporation
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-5100
ATTN: Corporate Counsel
Corporate Financial Services - Global Sponsor Finance
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
General Electric Capital Corporation
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ATTN: Corporate Counsel
Corporate Financial Services - Global Sponsor Finance
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All notices to Trustee required or permitted hereunder shall be deemed given when given in the
manner prescribed in Section 14.02 of the Indenture and Section 9.3 of the Credit Agreement to the following
address:
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Three ▇▇▇▇▇ Center, Suite 1206,
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
5.12 Severability. The provisions of this Deed of Trust are severable, and if any clause or provision shall
be held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in such jurisdiction and shall not
in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision of this
Deed of Trust in any jurisdiction.
5.13 Survival of Provisions. All agreements, representations and warranties made herein shall survive the
execution and delivery of this Deed of Trust, the Indenture and the Credit Agreement and the making of the Loans
and extensions of credit thereunder. Notwithstanding anything in this Deed of Trust or implied by law to the
contrary, the agreements, representations and warranties of Grantor set forth herein shall terminate only upon
the indefeasible payment in full in cash of the Secured Obligations.
5.14 Successions or Assignments.
5.14.1 This Deed of Trust shall inure to the benefit of the successors or assigns of the Secured Parties who
shall have, to the extent of their interest, the rights of the Secured Parties hereunder; provided, however, that
the rights of the Secured Parties hereunder, if any be retained by them, shall have priority over and be senior
to the rights of its successors or assigns unless Beneficiary shall otherwise elect.
5.14.2 This Deed of Trust is binding upon Grantor and its successors and assigns. Grantor is not entitled to
assign its obligations hereunder to any other person without the written consent of Beneficiary, and any
purported assignment in violation of this provision shall be void.
5.15 Headings Descriptive. Article and Section headings have been inserted in this Deed of Trust as a matter
of convenience for reference only and it is agreed that such article and section headings are not a part of this
Deed of Trust and shall not be used in the interpretation of any provision of this Deed of Trust.
5.16 Entire Agreement. This Deed of Trust, together with any other agreement executed in connection
herewith, is intended by the parties as a final expression of their agreement and is intended as a complete and
exclusive statement of the terms and conditions thereof.
5.17 Counterparts. This Deed of Trust and any amendments, waivers, consents or supplements hereto or in
connection herewith may be executed in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages are physically attached to the same
document.
5.18 Governing Law. This Deed of Trust, including all matters of construction, validity, performance and the
creation, validity, enforcement or priority of the lien of, and security interests created by, this Deed of Trust
in or upon the Trust Estate shall be governed by the laws of the Commonwealth of Virginia, without reference to
conflicts of law, except as required by mandatory provisions of law and except to the extent that the validity or
perfection of the lien and security interest hereunder, or remedies hereunder, in respect of any portion of the
Trust Estate are governed by the laws of a jurisdiction other than the Commonwealth of Virginia.
5.19 Waiver of Jury Trial. GRANTOR, TRUSTEE AND BENEFICIARY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS DEED OF TRUST OR ANY OTHER NOTE DOCUMENT, LOAN DOCUMENT OR ANY COURSE OR
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF GRANTOR, TRUSTEE, OR
BENEFICIARY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS DEED OF TRUST.
5.20 Third Party Rights. Nothing in this Deed of Trust, expressed or implied, is intended or shall be
construed to confer upon, or give to any Person, other than Grantor, Trustee, Beneficiary and the Secured
Parties, any security, rights, remedies or claims, legal or equitable, under or by reason hereof, or any covenant
or condition hereof; and this Deed of Trust and the covenants and agreements herein contained are and shall be
held to be for the sole and exclusive benefit of Grantor, Trustee, Beneficiary and the Secured Parties.
5.21 Certain Definitions. The words "include," "including" and words of similar import shall be interpreted
as if followed by the words "without limitation" except where the context otherwise indicates.
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IN WITNESS WHEREOF, Grantor, by its officers duly authorized, intending to be legally bound,
has caused this Deed of Trust to be duly executed and delivered as of the date first above written.
▇'▇▇▇▇▇▇▇▇ INDUSTRIES - VIRGINIA, INC.
a Virginia corporation
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and Chief Financial
Officer
STATE OF MISSOURI )
: ss.:
COUNTY OF ▇▇▇▇▇▇ )
I HEREBY CERTIFY, that on this 12th day of November, 2003, before me, the undersigned notary, personally appeared
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the Senior Vice President and Chief Financial Officer of ▇'▇▇▇▇▇▇▇▇ Industries - Virginia, Inc.
and acknowledged the foregoing instrument before me on behalf of Trustor.
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇
Notary Public
My commission expires: 4/26/05
[NOTARY SEAL]