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Exhibit 10(ll)
TENNESSEE
Prepared by, and when recorded, please return to:
▇▇▇▇▇▇▇ Teacher & ▇▇▇▇▇▇▇▇
a partnership which includes
professional corporations
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
DEED OF TRUST, ASSIGNMENT OF RENTS
AND LEASES AND SECURITY AGREEMENT
from
TELEX COMMUNICATIONS, INC., Grantor
to
▇▇▇ ▇. ▇▇▇▇, ▇▇., Trustee
for the use and
benefit of
THE CHASE MANHATTAN BANK, as Administrative Agent, Beneficiary
DATED AS OF FEBRUARY 2, 1998
MAXIMUM PRINCIPAL INDEBTEDNESS FOR TENNESSEE
RECORDING TAX PURPOSES IS $15,000,000
SEE ATTACHED AFFIDAVIT
This instrument covers property which has become so affixed to real
property as to become fixtures and constitutes a fixture filing under
Section 47-9-402 of the Tennessee Code Annotated.
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TENNESSEE
DEED OF TRUST, ASSIGNMENT OF RENTS
AND LEASES AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES AND
SECURITY AGREEMENT, dated as of February 2, 1998, is made by TELEX
COMMUNICATIONS, INC., a Delaware corporation, formerly known as EV
International, Inc. ("GRANTOR"), whose address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ to ▇▇▇ ▇. ▇▇▇▇, ▇▇., a resident of Davidson County,
Tennessee, ("TRUSTEE"), for the use and benefit of THE CHASE MANHATTAN BANK, a
New York banking corporation whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, as Administrative Agent (in such capacity, "BENEFICIARY") for the
several banks and other financial institutions (the "LENDERS") from time to time
parties to the Credit Agreement dated as of May 6, 1997 among GST Acquisition
Corp., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") and Beneficiary,
as amended by Amendment No. 1 dated as of February 2, 1998 (the "AMENDMENT")
among Grantor, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Beneficiary (as the same may be further
amended, supplemented, waived or otherwise modified from time to time the
"CREDIT AGREEMENT"). References to this "Deed of Trust" shall mean this
instrument and any and all renewals, modifications, amendments, supplements,
extensions, consolidations, substitutions, spreaders and replacements of this
instrument. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned thereto in the Credit Agreement.
Background
A. Pursuant to an Exchange Agreement, dated as of January 30,
1998 (together with all other documents delivered in connection therewith, the
"TELEX/EVI MERGER DOCUMENTS"), EVI and Telex Communications, Inc., a Delaware
corporation, have effectuated a merger of Telex Communications, Inc. with and
into EV International, Inc. ("EVI"), with EVI continuing as the surviving
corporation, in the process changing its name to Telex Communications, Inc.
B. Grantor is the owner of the parcel(s) of real property
described on Schedule A attached hereto (such real property, together with all
of the buildings, improvements, structures and fixtures now or subsequently
located thereon (the "IMPROVEMENTS"), being collectively referred to as the
"REAL ESTATE").
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C. Pursuant to the terms of the Credit Agreement, the Lenders
have agreed, among other things, to make the Loans in the maximum principal
amount not to exceed $150,000,000, having a maturity date of December 31, 2004,
and the Issuing Lender has agreed to issue, and the L/C Participants have agreed
to acquire undivided participating interests in, the Letter(s) of Credit for the
account of the Borrower upon the terms and subject to the conditions set forth
in the Credit Agreement which conditions include the grant by Grantor to
Beneficiary of a first lien upon and perfected security interest in, among other
things, all estate, right, title and interest of Grantor in and to the Real
Estate pursuant to the terms hereof.
D. It is a condition precedent to the effectiveness of the
Amendment that Grantor executes and delivers this Deed of Trust.
Granting Clauses
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees that to secured:
(a) the repayment of principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans
and Reimbursement Obligations and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether
or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans (as they may be evidenced by the Notes from
time to time) and all other obligations (including the Reimbursement
Obligations) and liabilities of Grantor to Beneficiary the Issuing
Lender and the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Credit
Agreement, the Loans, the Letters of Credit, the Security Documents,
any Guarantee Obligation of Grantor as to which any Lender is a
beneficiary, any Permitted Hedging Arrangement with any Lender or any
banking affiliate of any Lender (whether entered into directly, or
guaranteed by Grantor), the Guarantee and Collateral Agreement dated as
of May 6, 1997 between Telex Communications, Inc., Telex Communications
Group, TCI Holdings Corp. and Beneficiary (the "GUARANTEE") or any
other document made, delivered or given in connection therewith, in
each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees charges and disbursements of
counsel to the Administrative Agent, the Issuing Lender or any Lender
that are required to be paid by any Loan Party pursuant to the Credit
Agreement) (the items set forth above being referred to collectively as
the "INDEBTEDNESS"); and
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(b) the performance of all covenants, agreements, obligations
and liabilities of Grantor (the "OBLIGATIONS") under or pursuant to the
provisions of the Credit Agreement, the Loans, this Mortgage, the
Guarantee, any other document securing payment of the Indebtedness (the
"SECURITY DOCUMENTS") and any amendments, supplements, extensions,
renewals, restatements, replacements or modifications of any of the
foregoing (the Credit Agreement the Loans, the Letters of Credit, this
Mortgage, the Guarantee and all other documents and instruments from
time to time evidencing, securing or guaranteeing the payment of the
Indebtedness or the performance of the Obligations, as any of the same
may be amended, supplemented, extended, renewed, restated, replaced or
modified from time to time, are collectively referred to as the "LOAN
DOCUMENTS");
GRANTOR HEREBY CONVEYS TO TRUSTEE AND HEREBY GRANTS, SELLS, BARGAINS, CONFIRMS,
ASSIGNS, TRANSFERS AND SETS OVER TO TRUSTEE, WITH POWER OF SALE FOR THE USE AND
BENEFIT OF BENEFICIARY, AND GRANTS BENEFICIARY, INSOFAR AS ANY PROPERTY
CONSTITUTES PERSONAL PROPERTY, A SECURITY INTEREST IN:
(A) the Real Estate;
(B) all the estate, night, title, claim or demand whatsoever
of Grantor, in possession or expectancy, in and to the Real Estate or
any part thereof,
(C) all night, title and interest of Grantor in, to and under
all easements, rights of way, gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water and riparian
rights, development rights, air rights, mineral rights and all estates,
rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to
the Real Estate, and any reversions, remainders, rents, issues, profits
and revenue thereof and all land lying in the bed of any street, road
or avenue, in front of or adjoining the Real Estate to the center line
thereof,
(D) all right, title and interest of Grantor in and to all of
the fixtures, chattels, business machines, machinery, apparatus,
equipment, furnishings, fittings and articles of personal property of
every kind and nature whatsoever, and all appurtenances and additions
thereto and substitutions or replacements thereof (together with, in
each case, attachments, components, parts and accessories) currently
owned or subsequently acquired by Grantor and now or subsequently
attached to, or contained in or used or usable in any way in connection
with any operation or letting of the Real Estate, including but
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without limiting the generality of the foregoing, all screens, awnings,
shades, blinds, curtains, draperies, artwork, carpets, rugs, storm
doors and windows, furniture and furnishings, heating, electrical, and
mechanical equipment, lighting, switchboards, plumbing, ventilating,
air conditioning and air-cooling apparatus, refrigerating, and
incinerating equipment, escalators, elevators, loading and unloading
equipment and systems, stoves, ranges, laundry equipment, cleaning
systems (including window cleaning apparatus), telephones,
communication systems (including satellite dishes and antennae),
televisions, computers, sprinkler systems and other fire prevention and
extinguishing apparatus and materials, security systems, motors,
engines, machinery, pipes, pumps, tanks, conduits, appliances, fittings
and fixtures of every kind and description (all of the forgoing in this
paragraph (D) being referred to as the "EQUIPMENT");
(E) all right, title and interest of Grantor in and to all
substitutes and replacements of, and all additions and improvements to,
the Real Estate and the Equipment, subsequently acquired by or released
to Grantor or constructed, assembled or placed by Grantor on the Real
Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials to be used by Grantor whether stored at the Real
Estate or offsite, and, in each such case, without any further
mortgage, conveyance, assignment or other act by Grantor;
(F) all right, title and interest of Grantor in, to and under
all leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or
occupancy of the Real Estate or the Equipment or any part thereof, now
existing or subsequently entered into by Grantor and whether written or
oral and all guarantees of any of the foregoing (collectively, as any
of the foregoing may be amended, restated, extended, renewed or
modified from time to time, the "LEASES"), and all rights of Grantor in
respect of cash and securities deposited thereunder and the right to
receive and collect the revenues, income, rents, issues and profits
thereof, together with all other rents, royalties, issues, profits,
revenue, income and other benefits arising from the use and enjoyment
of the Trust Property (as defined below) (collectively, the "RENTS");
(G) all books and records relating to or used in connection
with the operation of the Real Estate or the Equipment or an part
thereof.
(H) all right, title and interest of Grantor, to the extent
assignable, in and to (i) all unearned premiums under insurance
policies now or subsequently obtained by Grantor relating to the Real
Estate or Equipment, (ii) any such
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insurance policies, (iii) all proceeds of any such insurance policies
(including title insurance policies), including the right to collect
and receive such proceeds, subject to the provisions relating to
insurance generally set forth below, and (iv) all awards and other
compensation, including the interest payable thereon and the right to
collect and the same, made to the present or any subsequent owner of
the Real Estate or Equipment for the taking by eminent domain,
condemnation or otherwise, of all or any part of the Real Estate or any
easement or other right therein, subject to the provisions relating to
condemnation awards generally, set forth below;
(I) all right, title and interest of Grantor, to the extent
assignable, in and to (i) all contracts from time to time executed by
Grantor or any manager or agent on its behalf relating to the
ownership, construction, maintenance, repair, operation, occupancy,
sale or financing of the Real Estate or Equipment or any part thereof
and all agreements relating to the purchase or lease of any portion of
the Real Estate or any property which is adjacent or peripheral to the
Real Estate, together with the right to exercise such options
(collectively, the "CONTRACTS"), (ii) all consents, licenses, building
permits, certificates of occupancy and other governmental approvals
relating to construction, completion, occupancy, use or operation of
the Real Estate or any part thereof (collectively, the "PERMITS") and
(iii) all drawings, plans, specifications and similar or related items
relating to the Real Estate (collectively, the "PLANS");
(J) any and all monies now or subsequently on deposit for the
payment of real estate taxes or special assessments against the Real
Estate or for the payment of premiums on insurance policies covering
the foregoing property or otherwise on deposit with or held by
Beneficiary as provided in this Deed of Trust;
(K) all accounts and revenues arising from the operation of
the improvements; and
(L) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now
owned or held or subsequently acquired by Grantor and described in the foregoing
clauses (A) through (E) are collectively referred to as the "PREMISES", and
those described in the foregoing clauses (A) through (L) are collectively
referred to as the "TRUST PROPERTY").
TO HAVE AND TO HOLD the Trust Property and the rights and
privileges hereby granted unto Trustee, its successors and assigns for the uses
and purposes set forth, until the Indebtedness is fully paid and the Obligations
fully
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performed or as otherwise expressly provided in the Section of this Deed of
Trust entitled "Reconveyance of Deed of Trust".
Terms and Conditions
Grantor further represents, warrants, covenants and agrees
with Trustee and Beneficiary as follows:
1. Warranty of Title. Grantor warrants that Grantor has good
title to the Real Estate in fee simple and good title to the rest of the Trust
Property, subject only to the matters that are set forth in Schedule B of the
title insurance policy or policies being issued to Beneficiary to insure the
lien of this Deed of Trust and Liens expressly permitted under the Credit
Agreement (collectively, the "PERMITTED EXCEPTIONS") and Grantor shall warrant,
defend and preserve such title and the rights granted by this Deed of Trust with
respect thereto against all claims of all persons and entities. Grantor further
warrants that it has the right to grant this Deed of Trust.
2. Payment of Indebtedness. Grantor shall pay the Indebtedness
at the times and places and in the manner specified in the Credit Agreement and
shall perform all the Obligations.
3. Requirements. (a) Grantor shall promptly comply with, or
cause to be complied with, and conform to all present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements, and irrespective of the nature of the work to be done, of each of
the United States of America, any State and any municipality, local government
or other political subdivision thereof and any agency, department, bureau,
board, commission or other instrumentality of any of them, now existing or
subsequently created (collectively, "GOVERNMENTAL AUTHORITY") which has
jurisdiction over the Trust Property and all covenants, restrictions and
conditions now or later of record which may be applicable to any of the Trust
Property, or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration, repair or reconstruction of any of the Trust Property,
except to the extent that failure to comply therewith, in the aggregate, would
not reasonably be expected to have a Material Adverse Effect. All present and
future laws, statutes, codes, ordinances, orders, judgments, decrees, rules,
regulations and requirements of every Governmental Authority applicable to
Grantor or to any of the Trust Property and all covenants, restrictions, and
conditions which now or later ▇▇▇▇ be applicable to any of the Trust Property
are collectively referred to as the "LEGAL REQUIREMENTS".
(b) From and after the date of this Deed of Trust, except as
expressly permitted under the Credit Agreement or herein, Grantor shall, not by
act or omission
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permit, other than Permitted Exceptions, any building or other improvement on
any premises not subject to this Deed of Trust to rely on the Premises or any
part thereof or any interest therein to fulfill any Legal Requirement, and
Grantor hereby assigns to Beneficiary any and all rights to give consent for all
or any portion of the Premises or any interest therein to be so used. Grantor
shall not by act or omission impair the integrity of any of the Real Estate as a
single zoning lot separate and apart from all other premises. Grantor represents
that each parcel of the Real Estate constitutes a legally subdivided lot, in
compliance with all subdivision laws and similar Legal Requirements, except to
the extent that failure to comply therewith, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect. Any act or omission by
Grantor which will result in a violation of any of the provisions of this
subsection shall be void.
4. Payment of Taxes and Other Impositions. (a) Except as
expressly permitted under the Credit Agreement, Grantor, prior to delinquency,
shall pay and discharge all taxes of every kind and nature (including, without
limitation, all real and personal property, income, franchise, withholding,
transfer gains, profits and gross receipts taxes), all charges for any easement
or agreement maintained for the benefit of any of the Trust Property, all
general and special assessments, levies, permits, inspection and license fees,
all water and sewer rents and charges and all other public charges even if
unforeseen or extraordinary, imposed upon or assessed against or which may
become a lien on any of the Trust Property, or arising in respect of the
occupancy, use or possession thereof, together with any penalties or interest on
any of the foregoing (all of the foregoing are collectively referred to as the
"IMPOSITIONS"). Grantor shall within 30 days after the request of Beneficiary
deliver to Beneficiary (i) original or copies of receipted bills and cancelled
checks or other evidence of payment of such Imposition if it is a real estate
tax or other public charge and (ii) evidence acceptable to Beneficiary in its
reasonable discretion showing the payment of any other such Imposition. If by
law any Imposition, at Grantor's option, may be paid in installments (whether or
not interest shall accrue on the unpaid balance of such Imposition), Grantor may
elect to pay such Imposition in such installments and shall be responsible for
the payment of such installments with interest, if any.
(b) Nothing herein shall affect any right or remedy of Trustee
or Beneficiary under this Deed of Trust or otherwise, without notice or demand
to Grantor, to pay any Imposition after the date such Imposition shall have
become delinquent, and to add to the Indebtedness the amount so paid, together
with interest from the time of payment at the rate of interest described in
paragraph 4.1(c) of the Credit Agreement (the "DEFAULT RATE"). Any sums paid by
Trustee or Beneficiary in discharge of any Impositions shall be (i) a charge on
the Premises secured hereby prior to any right of title to interest in, or claim
upon the Premises subordinate to the lien of
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this Deed of Trust, and (ii) payable on demand by Grantor to Trustee or
Beneficiary, as the case may be, together with Interest at the Default Rate as
set forth above.
(c) Grantor shall not claim, demand or be entitled to receive
any credit or credits toward the satisfaction of this Deed of Trust or on any
interest payable thereon for any taxes assessed against the Trust Property or
any part thereof, and shall not claim any deduction from the taxable value of
the Trust Property by reason of this Deed of Trust.
(d) Grantor shall have the right pursuant to subsection 7.3 of
the Credit Agreement to contest in good faith to the amount or validity of any
Imposition by appropriate proceedings diligently conducted with reserves in
conformity with GAAP, provided that Grantor shall demonstrate to Beneficiary's
reasonable satisfaction that such proceedings shall operate conclusively to
prevent the sale of the Trust Property or any part thereof, to satisfy such
Imposition prior to final determination of such proceedings.
(e) Upon written notice to Grantor, Beneficiary during the
continuance of an Event of Default (as defined below) shall be entitled to
require Grantor to pay monthly in advance to Beneficiary the equivalent of
1/12th of the estimated annual Impositions. Beneficiary may commingle such funds
with its own funds but Grantor shall be entitled to interest thereon at a rate
mutually agreed upon by Grantor and Beneficiary.
5. Insurance. (a) Grantor shall maintain or cause to be
maintained on all of the Premises:
(i) property insurance against loss or damage by fire,
lightning, windstorm, tornado, water damage, flood, earthquake and by
such other further risks and hazards as now are or subsequently may be
covered by an "all risk" policy or a fire policy covering "special"
causes of loss (provided, however, that the maintenance of insurance
against earthquake, windstorm, flood and freeze risks shall be subject
to availability of such insurance coverage on commercially reasonable
terms). The policy shall include building ordinance law endorsements
and the policy limits shall be automatically reinstated after each loss
(other than with respect to flood and earthquake coverage which shall
be reinstated on a commercially reasonable basis),
(ii) commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), covering all claims
for personal injury, bodily injury or death, or property damage,
subject to standard policy terms,
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conditions and exclusions, occurring on, in or about the Premises in an
amount not less than $10,000,000 combined single limit with respect to
personal injury, bodily injury or death, or property damage, relating
to any one occurrence plus such excess limits as Beneficiary shall
reasonably request from time to time
(iii) when and to the extent reasonably required by
Beneficiary, insurance against loss or damage by any other risk
commonly insured against by persons occupying or using like properties
in the locality or localities in which the Real Estate is situated;
(iv) during the course of any construction or repair of
Improvements, commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), (including coverage
for elevators and escalators, if any). The policy shall include
coverage for independent contractors and completed operations. The
completed operations coverage shall stay in effect for two years after
construction of any Improvements has been completed. The policy shall
provide coverage on an occurrence basis against claims for personal
injury, including, without notation, bodily injury and death, and
property damage resulting from Grantor's negligence or other behavior
for which Grantor may be adjudged tortiously liable, subject to
standard policy terms, conditions and exclusions, occurring on, in or
about the Premises and the adjoining streets, sidewalks and
passageways, such insurance to afford immediate minimum protection to a
limit of not less than that reasonably required by Beneficiary with
respect to personal injury, bodily injury or death to any one or more
persons or damage to property;
(v) during the course of any construction or repair of the
Improvements, workers' compensation insurance (including employer's
liability insurance) for all employees of Grantor engaged on or with
respect to the Premises in such amounts no less than the limits
established by law or in the case of employer's liability insurance, no
less than $500,000, provided that Grantor may self-insure any or all
workers' compensation liabilities;
(vi) during the course of any construction, addition,
alteration or repair of the Improvements, builder's risk completed
value property insurance form against "all risks of physical loss"
(subject to standard policy exclusions), including collapse, water
damage, flood and earthquake and transit coverage, during construction
or repairs of the Improvements, with deductible approved by Beneficiary
in its reasonable discretion, in reporting form, covering the total
replacement value of work performed and equipment, supplies and
materials furnished (with an appropriate limit for soft costs in the
case of construction);
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provided, however, that the maintenance of insurance against earthquake
and flood risks shall be subject to availability of such insurance
coverage on commercially reasonable terms,
(vii) boiler and machinery property insurance covering
pressure vessels, air tanks, boilers, machinery, pressure piping,
heating, air conditioning and elevator equipment and escalator
equipment, provided the Improvements contain equipment of such nature,
in such amounts as are reasonably satisfactory to Beneficiary but not
less than the lesser of $1,000,000 or 10% of the value of the
Improvements;
(viii) if any portion of the Premises are located in an area
identified in the Federal Register as having special flood hazards by
the Secretary of Housing and Urban Development or other applicable
agency, flood insurance covering any parcel of the Trust Property which
contains improvements in an amount satisfactory to Beneficiary in its
reasonable discretion, but in no event less than the maximum limit of
coverage available with respect to the particular type of property
under the National Flood Insurance Act of 1968, as amended and with a
term ending not later than the maturity of the Indebtedness and
Beneficiary shall receive confirmation that Grantor has received the
notice required pursuant to Section 208.8(e)(3) of Regulation H of the
Board of Governors of The Federal Reserve System; and
(ix) such other insurance in such amounts as Beneficiary may
reasonably request from time to time.
Each insurance policy (other than flood insurance written under the National
Flood Insurance Act of 1968, as amended, in which case to the extent available)
shall (i) provide that it shall not be cancelled, non-renewed or, in the case of
property and boiler and machinery insurance, materially amended without 30-days'
prior written notice to Beneficiary, (ii) with respect to all property
insurance, subject to availability on commercially reasonable terms, provide for
deductibles not to exceed $250,000, other than with respect to (a) flood,
freeze, windstorm and earthquake perils for which deductibles shall not exceed
the greater of $500,000 or 5% of values at risk per location involved in loss
and (b) boiler and machinery coverage for which deductibles shall not exceed the
greater of $500,000 or five times 100% of the daily time element value, contain
a "Replacement Cost Endorsement" without any deduction made for depreciation and
with no co-insurance penalty (or attaching an agreed amount endorsement
satisfactory to Beneficiary in its reasonable discretion), with loss payable
solely to Beneficiary (modified, if necessary and to the extent available under
such policy, to provide that proceeds in the amount of replacement cost may be
retained by Beneficiary without the obligation to rebuild) as its interest may
appear, without
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contribution, under a "standard" or "New York" mortgagee clause acceptable to
Beneficiary in its reasonable discretion and be written by insurance companies
having an A.M. Best Company, Inc. rating of A- or higher and a financial size
category of not less than VII, or otherwise as approved by Beneficiary in its
reasonable discretion and (iii) contain a "manuscript" endorsement providing
that Grantor may not unilaterally cancel such policy without Beneficiary's prior
written consent. Liability insurance policies shall name Beneficiary as an
additional insured and contain a waiver of subrogation against Beneficiary; all
such policies shall indemnify and hold Beneficiary harmless from all liability
claims occurring on, in or about the Premises and the adjoining streets,
sidewalks and passageways, subject to standard policy terms, conditions and
exclusions. The amounts of each insurance policy and the form of each such
policy shall at all times be satisfactory to Beneficiary in its reasonable
discretion. Each policy shall expressly provide that any proceeds which are
payable to Beneficiary shall be paid by check payable to the order of
Beneficiary only and requiring the endorsement of Beneficiary only. If any
required insurance shall expire, be withdrawn, become void by breach of any
condition thereof by Grantor or by any lessee of any part of the Trust Property
or become void or unsafe by reason of the failure or impairment of the capital
of any insurer, Grantor shall immediately obtain new or additional insurance
satisfactory to Beneficiary in its reasonable discretion. Grantor shall not take
out any separate or additional insurance which is contributing in the event of
loss unless it is properly endorsed and otherwise satisfactory to Beneficiary in
all respects in its reasonable discretion.
(b) Grantor shall deliver to Beneficiary an original of each
insurance policy required to be maintained, or a certificate of such insurance
acceptable to Beneficiary in its reasonable discretion, together with a copy of
the declaration page for each such policy. Grantor shall (i) pay as they become
due all premiums for such insurance, (ii) not later than seven days prior to the
expiration of each policy to be furnished pursuant to the provisions of this
Section, deliver a renewed policy or policies, or certificates of insurance
acceptable to Beneficiary, in its reasonable discretion, or duplicate original
or originals thereof. Upon the reasonable request of Beneficiary, Grantor shall
cause its insurance underwriter or broker to certify to Beneficiary in writing
that all the requirements of this Deed of Trust governing insurance have been
satisfied.
(c) If Grantor is in default of its obligations to insure or
deliver any such policy or policies, or certificates of insurance acceptable to
Beneficiary, in its reasonable discretion, then Beneficiary, at its option and
without notice, may effect such insurance from year to year, and pay the premium
or premiums therefor, and Grantor shall pay to Beneficiary on demand such
premium or premiums so paid by Beneficiary with interest from the time of
payment at the Default Rate and the same
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shall be deemed to be secured by this Deed of Trust and shall be collectible in
the same manner as the Indebtedness secured by this Deed of Trust.
(d) Grantor shall increase the amount of property insurance
required to equal 100% replacement cost pursuant to the provisions of this
Section at the time of each renewal of each policy (but not later than 12 months
from the date of this Deed of Trust and each successive 12 month period to occur
thereafter) by using the ▇▇▇▇▇▇ & Swift Building Cost Index to determine whether
there shall have been an increase in the replacement value since the most recent
adjustment and, if there shall have been such an increase, the amount of
insurance required shall be adjusted accordingly.
(e) Grantor promptly shall in all material respects comply
with and conform to (i) all provisions of each such insurance policy, and (ii)
all requirements of the insurers applicable to Grantor or to any of the Trust
Property or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration or repair of any of the Trust Property. Grantor shall
not use or permit the use of the Trust Property in any manner which would permit
any insurer to cancel any Insurance policy or void coverage required to be
maintained by this Deed of Trust.
(f) (i) If the Trust Property, or any part thereof, shall be
destroyed or damaged by fire or any other casualty, whether insured or
uninsured, or in the event any claim is made against Grantor for any
personal injury, bodily injury or property damage incurred on or about
the Premises, Grantor shall promptly give notice thereof to
Beneficiary.
(ii) If the Trust Property is damaged by fire or other
casualty and the cost to repair such damage is less than $1,000,000,
then provided that no Event of Default shall have occurred and be
continuing, Grantor shall have the right to adjust such loss, and the
insurance proceeds relating to such loss mal be paid over to Grantor;
provided that Grantor shall, promptly after any such damage, repair
such damage to the extent required by subsection 7.5 of the Credit
Agreement regardless of whether any insurance proceeds have been
received or whether such proceeds, if received, are sufficient to pay
for the costs of repair.
(iii) If the Trust Property is damaged by fire or other
casualty, and the cost to repair such damage exceeds the limit in
Section 5(f)(ii) above, or if an Event of Default shall have occurred
and be continuing, then Grantor authorizes and empowers Beneficiary, at
Beneficiary's option and in Beneficiary's reasonable discretion, as
attorney-in-fact for Grantor, to make proof of loss, to adjust and
compromise any claim under any insurance policy, to appear in and
prosecute any action arising from any policy, to collect and receive
insurance proceeds and to deduct therefrom Beneficiary's reasonable
expenses incurred in
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the collection process. Each insurance company concerned is hereby
authorized and directed to make payment for such loss directly to
Beneficiary. Beneficiary shall have the night to require Grantor to
repair or restore the Trust Property to the extent required by
subsection 7.5 of the Credit Agreement, and Grantor hereby designates
Beneficiary as its attorney-in-fact for the purpose of making any
election required or permitted under any insurance policy relating to
such repair or restoration. The insurance proceeds or any part thereof
received by Beneficiary may be applied by Beneficiary toward
reimbursement of all reasonable costs and expenses of Beneficiary in
collecting such proceeds, and the balance, at Beneficiary's option in
its sole and absolute discretion, to the principal (to the installments
in inverse order of maturity, if payable in installments) and interest
due or to become due under the Notes, the Credit Agreement or the other
Loan Documents, to fulfill any other Obligation of Grantor, to the
restoration or repair of the property damaged, or released to Grantor.
Application by Beneficiary of any insurance proceeds toward the last
maturing installments of principal and interest due or to become due on
the Loans shall not excuse Grantor from making any regularly scheduled
payments due thereunder, nor shall such application extend or reduce
the amount of such payments. In the event Beneficiary elects to release
such proceeds to Grantor, Grantor shall be obligated to use such
proceeds to restore or repair the Trust Property to the extent required
by subsection 7.5 of the Credit Agreement.
(g) In the event of foreclosure of this Deed of Trust or other
transfer of title to the Trust Property in extinguishment of the Indebtedness,
all right, title and interest of Grantor in and to any insurance policies then
in force, to the extent assignable or transferable, shall pass to the purchaser
or grantee and Grantor hereby appoints Beneficiary its attorney-in-fact, in
Grantor's name, to assign and transfer all such policies and proceeds to such
purchaser or grantee.
(h) Upon written notice to Grantor, Beneficiary, during the
continuance of an Event of Default, shall be entitled to require Grantor to pay
monthly in advance to Beneficiary the equivalent of 1/12th of the estimated
annual premiums due on such insurance. Beneficiary may commingle such funds with
its own funds but Grantor shall be entitled to interest thereon at a rate
mutually agreed upon by Grantor and Beneficiary.
(i) Grantor may maintain insurance required under this Deed of
Trust by means of one or more blanket insurance policies maintained by Grantor;
provided, however, that (A) any such policy shall specify, or Grantor shall
furnish to Beneficiary a written statement from the insurer to specifying, the
maximum amount of the total insurance afforded by such blanket policy that is
allocated to the Premises and the other Trust Property and any sublimits and
aggregates in such blanket policy applicable to the
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Premises and the other Trust Property (B) each such blanket policy shall include
an indorsement providing that, in the event of a loss resulting from an insured
peril, insurance proceeds shall be allocated to the Trust Property in an amount
equal to the coverages required to be maintained by Grantor as provided above
(subject to applicable sublimits and aggregates) and (C) the protection afforded
under any such blanket policy shall be no less than that which would have been
afforded under a separate policy or policies relating only to the Trust Property
(subject to applicable sublimits and aggregates).
6. Restrictions on Liens and Encumbrances. Except for the lien
of this Deed of Trust and the Permitted Exceptions and except as otherwise
permitted pursuant to the terms of the Credit Agreement, Grantor shall not
further mortgage, nor otherwise encumber the Trust Property nor create or suffer
to exist any lien, charge or encumbrance on the Trust Property, or any part
thereof, whether superior or subordinate to the Lien of this Deed of Trust and
whether recourse or non-recourse. Beneficiary has not consented and will not
consent to any contract or to any work or to the furnishing of any materials
which might be deemed to create a lien or liens superior to the lien of this
instrument, either under Section ▇▇-▇▇-▇▇▇ of the Tennessee Code Annotated, or
otherwise.
7. Due on Sale and Other Transfer Restrictions. Except as may
be otherwise expressly permitted under the Credit Agreement, Grantor shall not
sell, transfer, convey or assign all or any portion of, or any interest in, the
Trust Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a)
Grantor shall maintain or cause to be maintained all the Improvements in good
condition and repair and shall not commit or suffer any waste of the
Improvements. To the extent required under subsection 7.5 of the Credit
Agreement, Grantor shall repair, restore, replace or rebuild promptly any part
of the Premises which may be damaged or destroyed by any casualty whatsoever to
a condition substantially equivalent to its condition prior to the damage or
destruction. Except as permitted by the Credit Agreement, the Improvements shall
not be demolished or materially altered, nor any material additions built,
without the prior written consent of Beneficiary, provided that Grantor may make
alterations or additions without the consent of Beneficiary that do not
materially reduce the value of the Trust Property.
(b) Beneficiary and any persons authorized by Beneficiary
shall, upon reasonable notice and at any reasonable time, have the right to
enter and inspect the Premises and the right to inspect all work done, labor
performed and materials furnished in and about the improvements and the right to
inspect and make copies, to
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the extent reasonable, of all books, contracts and records of Grantor relating
to the Trust Property.
(c) Except as permitted under subsection 7.3 of the Credit
Agreement,
Grantor shall Pay or cause to be paid prior to delinquency, all utility charges
which are incurred for gas, electricity, water or sewer services furnished to
the Premise and all other assessments or charges of a similar nature, whether
public or private, affecting the Premises or any portion thereof, whether or not
such assessments or charges are liens thereon.
9. Condemnation/Eminent Domain. Promptly upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Trust Property, or any portion thereof, Grantor will notify Beneficiary of the
pendency of such proceedings. Grantor authorizes Beneficiary, at Beneficiary's
option and in Beneficiary's reasonable discretion, as attorney-in-fact for
Grantor, to commence, appear in and prosecute, in Beneficiary's or Grantor's
name, any action or proceeding relating to any condemnation of the Trust
Property, or any portion thereof, and to settle or compromise any claim in
connection with such condemnation upon the occurrence and during the continuance
of an Event of Default. If Beneficiary elects not to participate in such
condemnation proceeding, then Grantor shall, at its expense, diligently
prosecute any such proceeding and shall consult with Beneficiary, its attorneys
and experts and cooperate with them in any defense of any such proceedings. All
awards and proceeds of condemnation shall be applied in the same manner as
insurance proceeds, and to the extent such awards and proceeds exceed $1,000,000
and no Event of Default shall have occurred and be continuing, such awards and
proceeds shall be assigned to Beneficiary to be applied in the same manner as
insurance proceeds, as provided above in subsection 5(f)(iii) above, and Grantor
agrees to execute any such assignment of all such awards as Beneficiary may
request.
10. Restoration. If Beneficiary elects or is required
hereunder to release funds to Grantor for restoration of any of the Trust
Property, then such restoration shall be performed in accordance with such
conditions as Beneficiary shall impose in its reasonable discretion, and as are
customarily imposed by construction lenders.
11. Leases. (a) Grantor shall not (i) execute an assignment or
pledge of any Lease relating to all or any portion of the Trust Property other
than in favor of Beneficiary, or (ii) without the prior written consent of
Beneficiary, which consent shall not be unreasonably withheld or delayed,
execute or permit to exist any Lease of any of the Trust Property, except for
Permitted Exceptions and except as may be otherwise expressly permitted under
the Credit Agreement.
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(b) As to any Lease consented to by Beneficiary under
subsection 11(a) above, Grantor shall:
(i) promptly perform in all material respects all of the
provisions of the Lease on the part of the lessor thereunder to be
performed
(ii) promptly enforce all of the material provisions of the
Lease on the part of the lessee thereunder to be performed;
(iii) appear in and defend any action or proceeding arising
under or in any manner connected with the Lease or the obligation, of
Grantor as lessor or the lessee thereunder;
(iv) exercise, within 5 business days after a reasonable
request by Beneficiary, any right from the Lessee a certificate with
respect to the status thereof;
(v) promptly deliver to Beneficiary copies of any notices of
default which Grantor may at any time forward to or receive from the
lessee;
(vi) promptly deliver to Beneficiary a fully executed
counterpart of the Lease; and
(vii) promptly deliver to Beneficiary, upon Beneficiary's
reasonable request, if permitted under such Lease, an assignment of the
Grantor's interest under such Lease.
(c) Grantor shall deliver to Beneficiary, within 10 business
days after a reasonable request by Beneficiary, a written statement, certified
by Grantor as being true, correct and complete, containing the names of all
lessees and other occupants of the Trust Property, the terms of all Leases and
the spaces occupied and rentals payable thereunder, and a list of all Leases
which are then in default, including the nature and magnitude of the default;
such statement shall be accompanied by such other information as Beneficiary may
reasonably request.
(d) All Leases entered into by Grantor after the date hereof,
if any, and all rights of any lessees thereunder shall be subject and
subordinate in all respects to the lien and provisions of this Deed of Trust
unless Beneficiary shall otherwise elect in writing.
(e) In the event of the enforcement by Beneficiary of any
remedy under this Deed of Trust, the lessee under each Lease shall, if requested
by Beneficiary or
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any other person succeeding to the interest of Beneficiary as a result of such
enforcement, and if provided, at such lessee's request, with a nondisturbance
agreement from Beneficiary or such person, attorn to Beneficiary or to such
person and shall recognize Beneficiary or such successor in interest as lessor
under the Lease without charge in the provisions hereof; provided however, that
Beneficiary or such successor in interest shall not be: (i) bound by any payment
of an installment of rent or additional rent which may have been made more than
30 days before the due date of such installment; (ii) bound by any amendment or
modification to the Lease made without the consent of Beneficiary or such
successor in interest; (iii) liable for any previous act or omission of Grantor
(or its predecessors in interest); (iv) responsible for any monies owing by
Grantor to the credit of such lessee or subject to any credits, offsets, claims,
counterclaims, demands or defenses which the lessee may have against Grantor (or
its predecessors in interest); (v) bound by any covenant to undertake or
complete any construction of the Premises or any portion thereof; or (vi)
obligated to make any payment to such lessee other than any security deposit
actually delivered to Beneficiary or such successor in interest. Each lessee or
other occupant, upon request by Beneficiary or such successor in interest, shall
execute and deliver an instrument or instruments confirming such attornment. In
addition, Grantor agrees that each Lease entered into after the date of this
Deed of Trust shall include language to the effect of subsections (d)-(e) of
this Section and language to the effect that if any act or omission of Grantor
would give any lessee under such Lease the right, immediately or after lapse of
a period of time, to cancel or terminate such Lease, or to ▇▇▇▇▇ or offset
against the payment of rent or to claim a partial or total eviction, such lessee
shall not exercise such right until it has given written notice of such act or
omission to Beneficiary and until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notice without a remedy
being effected; provided that the provisions of such subsections shall be
self-operative and any failure of any Lease to include such language shall not
impair the binding effect of such provisions on any lessee under such Lease.
12. Further Assurances/Estoppel Certificates. To further
assure Beneficiary's and Trustee's rights under this Deed of Trust, Grantor
agrees upon demand of Beneficiary or Trustee to do any act or execute any
additional documents (including, but not limited to, security agreements on any
personalty included or to be included in the Trust Property and a separate
assignment of each Lease in recordable form) as may be reasonably required by
Beneficiary or Trustee to confirm the rights or benefits conferred on
Beneficiary or Trustee by this Deed of Trust.
13. Beneficiary's Right to Perform. If Grantor fails to
perform any of the covenants or agreements of Grantor, Beneficiary or Trustee,
without waiving or releasing Grantor from any obligation or default under this
Deed of Trust, may, at any time (but shall be under no obligation to) pay or
perform the same, and the amount or
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cost thereof, with interest at the Default Rate, shall immediately be due from
Grantor to Beneficiary or Trustee (as the case may be) and the same shall be
secured by this Deed of Trust and shall be an encumbrance on the Trust Property
prior to any right, title to, interest in or claim upon the Trust Property
attaching subsequent to the date of this Deed of Trust. No payment or advance of
money by Beneficiary or Trustee under this Section shall be deemed or construed
to cure Grantor's default or waive any right or remedy of Beneficiary or
Trustee.
14. Events of Default. The occurrence of an Event of Default
under the Credit Agreement shall constitute an Event of Default hereunder.
15. Remedies. (a) Upon the occurrence of any Event of Default,
in addition to any other rights and remedies Beneficiary may have pursuant to
the Loan Documents, or as provided by law, and without limitation, the
Indebtedness ind all other amounts payable with respect to the Loans, the
Letters of Credit, the Credit Agreement, this Deed of Trust and the other
Security Documents shall become due and payable as provided in the Credit
Agreement. Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
In addition, upon the occurrence of any Event of Default, Beneficiary may
immediately take such action, without notice or demand, as it deems advisable to
protect and enforce its rights against Grantor and in and to the Trust Property,
including, but not limited to, the following actions, each of which may be
pursued concurrently or otherwise, at such time and in such manner as
Beneficiary may determine, in its sole discretion, without impairing or
otherwise affecting the other rights and remedies of Beneficiary:
(i) Beneficiary may elect to cause the Trust Property or any
part thereof to be sold as follows: The Trustee, his successor or
substitute, is authorized and empowered and it shall be his special
duty at the request of Beneficiary to enter and take possession of the
Trust Property, and before or after such entry to advertise the sale of
weekly notices in some newspaper published in the Trust Property for 20
days by 3 weekly notices in some newspaper published in the county
where such sale is to be made and to sell the Trust Property or any
part thereof situated in the State of Tennessee at the courthouse door
of any county in the State of Tennessee in which any part of the Trust
Property is situated, at public vendue to the highest bidder for cash
between the hours of 10 o'clock A.M. and 4 o'clock P.M. of the day
fixed in the notice. Said sale shall be free from equity of redemption,
statutory right of redemption, homestead, dower, and all other rights
and exemptions of every kind, all of which are hereby waived, and the
Trustee shall execute a conveyance to the Purchaser and deliver
possession to the Purchaser, which Grantor binds itself shall be given
without obstruction, hindrance or delay. Any sale made by the Trustee
hereunder may
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be as an entirety or in such parcels or parts as Beneficiary may
request, and any sale may be adjourned by announcement at the time and
place appointed for such sale without further notice except as may be
required by law. The sale by the Trustee of less than the whole of the
Trust Property shall not exhaust the power of sale herein granted, and
the Trustee is specifically empowered to make successive sale or sales
under such power until the whole of the Trust Property shall be sold;
and, if the proceeds of such sale of less then the whole of the Trust
Property shall be less than the aggregate of the Indebtedness secured
hereby and the expense of executing this trust as provided herein, this
Deed of Trust and the lien hereof shall remain in full force and effect
as to the unsold portion of the Trust Property just as though no sale
had been made; provided however, that Grantor shall never have any
right to require the sale of less than the whole of the Mortgaged
Property but Beneficiary shall have the right, at its sole election, to
request the Trustee to sell less than the whole of the Trust Property.
After each sale, the Trustee shall make to the purchaser or purchasers
at such sale good and sufficient conveyances, conveying the property so
sold to the purchaser or purchasers with general warranty of title as
then possessed by the Trustee, and after each sale the Trustee shall
receive the proceeds of said sale or sales and apply the same as herein
provided. The power of sale granted herein shall not be exhausted by
any sale held hereunder by the Trustee or his substitute or successor,
and such power of sale may be exercised from time to time and as many
times as the Beneficiary may deem necessary until all the Trust
Property has been duly sold and all secured indebtedness has been fully
paid. In the event any sale hereunder is not completed or is defective
in the opinion of the Beneficiary, such sale shall not exhaust the
power of sale hereunder and the Beneficiary shall have the right to
cause a subsequent sale or sales to be made hereunder. Any and all
statements of fact or other recitals made in any deed or deeds given by
the Trustee or any successor or substitute appointed hereunder as to
nonpayment of the Indebtedness or as to the occurrence of any default,
or as to Beneficiary having declared all such indebtedness to be due
and payable, or as to the request to sell, or as to notice of time,
place and terms of sale and the properties to be sold having been duly
given, or as to the refusal, failure or inability to act of the Trustee
or any substitute or successor or as to the appointment of any
substitute or successor, shall be taken as prima facie evidence of the
truth of the facts so stated and recited. The Trustee, his successor or
substitute, may appoint or delegate any one or more persons as agent to
perform any act or acts necessary or incident to any sale held by the
Trustee, including the posting of notices and the conduct of sale, but
in the name and on behalf of the Trustee, his successor or substitute.
In the event a foreclosure hereunder shall be commenced by the Trustee,
or his substitute or successor, Beneficiary may at any time before the
sale of the Trust Property direct the said Trustee to abandon the sale,
and may then institute suit
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for the collection of the Notes or any other evidence of the
Indebtedness and the other Indebtedness and Obligations secured hereby,
and for the foreclosure of the lien of this Deed of Trust. It is agreed
that if Beneficiary should institute a suit for the collection of the
Notes or any other evidence of the Indebtedness and/or any other
secured Indebtedness and for the foreclosure of the lien of this Deed
of Trust, Beneficiary may at any time before the entry of a final
judgment in said suit dismiss the same, and require the Trustee, his
substitute or successor to sell the property in accordance with the
provisions of this Deed of Trust.
(ii) Beneficiary may, to the extent permitted by applicable
law, (A) institute and maintain an action of judicial foreclosure
against all or any part of the Trust Property, (B) institute and
maintain an action on the Notes, the Credit Agreement or the other
Security Documents, or (C) take such other action at law or in equity
for the enforcement of this Deed of Trust or any of the Loan Documents
as the law may allow. Beneficiary may proceed in any such action to
final judgment and execution thereon for all sums due hereunder,
together with interest thereon at the Default Rate and all costs of
suit, including, without limitations reasonable attorneys' fees and
disbursements. Interest at the Default Rate shall be due on any
judgment obtained by Beneficiary from the date of judgment until actual
payment is made of the full amount of the judgment.
(iii) Beneficiary may personally, or by its agents, attorneys
and employees and without regard to the adequacy or inadequacy of the
Trust Property or any other collateral as security for the Indebtedness
and Obligations enter into and upon the Trust Property and each and
every part thereof and exclude Grantor and its agents and employees
therefrom without liability for trespass, damage or otherwise (Grantor
hereby agreeing to surrender possession of the Trust Property to
Beneficiary upon demand at any such time) and use, operate, manage,
maintain and control the Trust Property and every part thereof.
Following such entry and taking of possession, Beneficiary shall be
entitled, without limitation, (x) to lease all or any part or parts of
the Trust Property for such periods of time and upon such conditions as
Beneficiary may, in its discretion, deem proper, (y) to enforce, cancel
or modify any Lease and (z) generally to execute, do and perform any
other act, deed, matter or thing concerning the Trust Property as
Beneficiary shall deem appropriate as fully as Grantor might do.
(b) Beneficiary, in any action to foreclose this Deed of Trust
in a judicial procedure or in connection with the exercise of an non-judicial
power of sale by Trustee, shall be entitled to the appointment of a receiver. In
case of a trustee's sale or foreclosure sale, the Real Estate may be sold, at
Beneficiary's election, in one parcel or in more than one parcel and Beneficiary
is specifically empowered (without being
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required to do so, and in its sole and absolute discretion) to cause successive
sales of portions of the Trust Property to be held.
(c) In the event of any breach of any of the covenants,
agreements, terms or conditions contained in this Deed of Trust, and
notwithstanding to the contrary any exculpatory or non-recourse language which
may be contained herein, Beneficiary or Trustee shall be entitled to enjoin such
breach and obtain specific performance of any covenant, agreement, term or
condition and Beneficiary and Trustee shall have the right to invoke any
equitable right or remedy as though other remedies were not provided for in this
Deed of Trust.
16. Right of Beneficiary to Credit Sale. Upon the occurrence
of any sale made under this Deed of Trust, whether made under the power of sale
or by virtue of judicial proceedings or of a judgment or decree of foreclosure
and sale, Beneficiary may bid for and acquire the Trust Property or any part
thereof. In lieu of paying cash therefor, Beneficiary may make settlement for
the purchase price by crediting upon the Indebtedness or other sums secured by
this Deed of Trust the net sales price after deducting therefrom the expenses of
sale and the cost of the action and any other sums which Beneficiary is
authorized to deduct under this Deed of Trust. In such event, this Deed of
Trust, the Notes and other instruments evidencing the Indebtedness and any and
all documents evidencing expenditures secured hereby may be presented to the
person or persons conducting the sale in order that the amount so used or
applied may be credited upon the Indebtedness as having been paid.
17. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Beneficiary as a matter of right and without notice
to Grantor, unless otherwise required by applicable law, and without regard to
the adequacy or inadequacy of the Trust Property or any other collateral as
security for the Indebtedness and Obligations or the interest of Grantor
therein, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers or other manager of the Trust Property, without
requiring the posting of a surety bond and without reference to the adequacy or
inadequacy of the value of the Trust Property or the solvency or insolvency of
Grantor or any other party obligated for payment of all or any part of the
Indebtedness, and whether or not waste has occurred with respect to the Trust
Property. Grantor hereby irrevocably consents to such appointment and waives
notice of any application therefor (except as may be required by law). Any such
receiver or receivers or other manager shall have all the usual powers and
duties of receivers in like or similar cases and all the powers and duties of
Beneficiary in case of entry as provided in this Deed of Trust including,
without limitation and to the extent permitted by law, the right to enter into
leases of all or any part of the Trust Property, and shall continue as such and
exercise all such powers until the date of confirmation of sale of the Trust
Property unless such receivership is sooner terminated.
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18. Extension, Release, etc. (a) Without affecting the
encumbrance or charge of this Deed of Trust upon any portion of the Trust
Property, not then or theretofore released as security for the full amount of
the Indebtedness, Beneficiary may, from time to time and without notice, agree
to (i) release any person liable for the Indebtedness, (ii) extend the maturity
or alter any of the terms of the Indebtedness or any guaranty thereof, (iii)
grant other indulgences, (iv) release or reconvey, or cause to be released or
reconveyed at any time at Beneficiary's option any parcel, portion or all of the
Trust Property, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make other arrangements with debtors in
relation thereto. If at any time this Deed of Trust shall secure less than all
of the principal amount of the Indebtedness, it is expressly agreed that any
repayments of the principal amount of the Indebtedness shall not reduce the
amount of the encumbrance of this Deed of Trust until the encumbrance amount
shall equal the principal amount of the Indebtedness outstanding.
(b) No recovery of any judgment by Beneficiary and no levy of
an execution under any judgment upon the Trust Property or upon any other
property of Grantor shall affect the encumbrance of this Deed of Trust or any
liens, rights, powers or remedies of Beneficiary or Trustee hereunder, and such
liens, rights powers and remedies shall continue unimpaired.
(c) If Beneficiary shall have the right to foreclose this Deed
of Trust or to direct the Trustee to exercise its power of sale, Grantor
authorizes Beneficiary at its option to foreclose the lien of this Deed of Trust
(or direct the Trustee to sell the Trust Property, as the case may be) subject
to the rights of any tenants of the Trust Property. The failure to make any such
tenants parties defendant to any such foreclosure proceeding and to foreclose
their rights, or to provide notice to such tenants as required in any statutory
procedure governing a sale of the Trust Property by Trustee, or to terminate
such tenant's rights in such sale will not be asserted by Grantor as a defense
to any proceeding instituted by Beneficiary to collect the Indebtedness or to
foreclose this Deed of Trust.
(d) Unless expressly provided otherwise, in the event that
Beneficiary's interest in this Deed of Trust and title to the Trust Property or
any estate therein shall become vested in the same person or entity, this Deed
of Trust shall not merge in such title but shall continue as a valid charge on
the Trust Property for the amount secured hereby.
19. Trustee's Powers (and Liabilities). (a) Beneficiary may
substitute, for any reason whatsoever, a successor Trustee or successor Trustees
for the Trustee hereunder from time to time by an instrument in writing in any
manner now or hereafter provided by law. Such right of substitution may be
exercised at any time and
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more than once for so long as any part of the Indebtedness and Obligations
remains unpaid. Such writing, upon recordation, shall be conclusive proof of
proper substitution of each such successor Trustee or Trustees, who shall
thereupon and without conveyance from the predecessor Trustee, succeed to all
its title, estate, rights, powers and duties hereunder. The making of oath and
giving bond by Trustee or any successor Trustee is hereby expressly waived by
Grantor. The Trustee may sell and convey said property under the power set out
herein, to any person, firm or corporation, although said Trustee has been, may
now be or may hereafter be attorney for or agent of Beneficiary charge hereof.
(b) At any time or from time to time, without liability
therefor, and without notice, upon the written request of Beneficiary and
presentation of the Notes, affecting the liability of any person for the payment
of the Indebtedness, and this Deed of Trust for endorsement, without affecting
the lien of the Deed of Trust upon the Trust Property for the full amount of all
amounts secured hereby, upon Beneficiary's request Trustee may (i) release all
or any part of the Trust Property, (ii) consent to the making of any map or plat
thereof, (iii) join in granting any easement thereon or in creating any
covenants or conditions restricting use or occupancy thereof, or (iv) join in
any extension agreement or in any agreement subordinating the lien or charge
hereof.
20. Security Agreement under Uniform Commercial Code. (a) It
is the intention of the parties hereto that this Deed of Trust shall constitute
a Security Agreement within the meaning of the Uniform Commercial Code (the
"CODE") of the State in which the Trust Property is located. If an Event of
Default shall occur under this Deed of Trust, then in addition to having any
other right or remedy available at law or in equity, Beneficiary shall have the
option of either (i) proceeding under the Code and exercising such rights and
remedies as may be provided to a secured party by the Code with respect to all
or any portion of the Trust Property which is personal property (including,
without limitation, taking possession of and selling such property) or (ii)
treating such property as real property and proceeding with respect to both the
real and personal property constituting the Trust Property in accordance with
Beneficiary's rights, powers and remedies with respect to the real property (in
which event the default provisions of the Code shall not apply). If Beneficiary
shall elect to proceed under the Code, then ten days' notice of sale of the
personal property shall be deemed reasonable notice and the reasonable expenses
of retaking, holding, preparing for sale, selling and the like incurred by
Beneficiary shall include, but not be limited to, reasonable attorneys' fees and
legal expenses. At Beneficiary's request, during the continuance of an Event of
Default, Grantor shall assemble the personal property and make it available to
Beneficiary at a place designated by Beneficiary, which is reasonably convenient
to both parties.
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(b) Grantor and Beneficiary agree, to the extent permitted by
law, that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this Deed of
Trust upon recording or registration in the real estate records of the proper
office shall constitute a financing statement filed as a "fixture filing" within
the meaning of Sections 9-313 and 9-402 of the Code; (iii) Grantor is the record
owner of the Real Estate; and (iv) the addresses of Grantor and Beneficiary are
as set forth on the first page of this Deed of Trust.
(c) Grantor, upon request by Beneficiary from time to time,
shall execute, acknowledge and deliver to Beneficiary one or more separate
security agreements, in form satisfactory to Beneficiary in its reasonable
discretion, covering all or any part of the Trust Property and will further
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, any financing statement, affidavit, continuation statement or
certificate or other document as Beneficiary may request in order to perfect,
preserve, maintain, continue or extend the security interest tinder and the
priority of this Deed of Trust and such security instrument. Grantor further
agrees to pay to Beneficiary on demand all reasonable costs and expenses
incurred by Beneficiary in connection with the preparation, execution,
recording, filing and refiling of any such document and all reasonable costs and
expenses of any record searches for financing statements Beneficiary shall
reasonably require. If Grantor shall fail to furnish any financing or
continuation statement within 10 days after request by Beneficiary, then
pursuant to the provisions of the Code, Grantor hereby authorizes Beneficiary,
without the signature of Grantor, to execute and file any such financing and
continuation statements. The filing of any financing or continuation statements
in the records relating to personal property or chattels shall not be construed
as in any way impairing the right of Beneficiary to proceed against any personal
property encumbered by this Deed of Trust as real property, as set forth above.
21. Assignment of Rents. Grantor hereby assigns to Trustee,
for the benefit of Beneficiary, the Rents as further security for the payment of
the Indebtedness and performance of the Obligations, and Grantor grants to
Trustee and Beneficiary the right to enter the Trust Property for the purpose of
collecting the same and to let the Trust Property or any part thereof and to
apply the Rents on account of the Indebtedness. The foregoing assignment and
grant is present and absolute and shall continue in effect until the
Indebtedness is paid in full, but Beneficiary and Trustee hereby waive the right
to enter the Trust Property for the purpose of collecting the Rents, letting the
Trust Property or any part thereof or applying the Rents and Grantor shall be
entitled to collect, receive, use and retain the Rents until the occurrence of
an Event of Default under this Deed of Trust; such right of Grantor to collect,
receive, use and retain the Rents may be revoked by Beneficiary upon the
occurrence of any Event of Default under this Deed of Trust by giving not less
than five days' written notice of such revocation to Grantor; in the event such
notice is given, Grantor shall pay over to
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Beneficiary, or to any receiver appointed to collect the Rents, any lease
security deposits, and shall pay monthly in advance to Beneficiary, or to any
such receiver, the fair and reasonable rental value as determined by Beneficiary
for the use and occupancy of the Trust Property or of such part thereof as may
be in the possession of Grantor or any affiliate of Grantor, and upon default in
any such payment Grantor and any such affiliate will vacate and surrender the
possession of the Trust Property to Beneficiary or to such receiver, and in
default thereof may be evicted by summary proceedings or otherwise. Grantor
shall not accept prepayments of installments of Rent to become due for a period
of more than one month in advance (except for security deposits and estimated
payments of percentage rent, if any).
22. Trust Funds. All lease security deposits of the Real
Estate shall be treated as trust funds not to be commingled with any other funds
of Grantor. Within 10 days after request by Beneficiary, Grantor shall furnish
Beneficiary satisfactory evidence of compliance with this subsection, together
with a statement of all lease security deposits by lessees and copies of all
Leases not previously delivered to Beneficiary under which such security
deposits are held, which statement shall be certified by Grantor.
23. Additional Rights. The holder of any subordinate lien or
subordinate deed of trust on the Trust Property shall have no right to terminate
any Lease whether or not such Lease is subordinate to this Deed of Trust nor
shall any holder of any subordinate lien or subordinate deed of trust join any
tenant under any Lease in any trustee's sale or action to foreclose the lien or
modify, interfere with, disturb or terminate the rights of any tenant under any
Lease. By recordation of this Deed of Trust all subordinate lienholders and the
trustees and beneficiaries under subordinate deeds of trust are subject to and
notified of this provision, and any action taken by any such lienholder or
trustee or beneficiary contrary to this provision shall be null and void. Upon
the occurrence of any Event of Default, Beneficiary may, in its sole discretion
and without regard to the adequacy of its security under this Deed of Trust,
apply all or any part of any amounts on deposit with Beneficiary under this Deed
of Trust against all or any part of the Indebtedness. Any such application shall
not be construed to cure or waive any Default or Event of Default or invalidate
any act taken by Beneficiary on account of such Default or Event of Default.
24. Changes in Method of Taxation. In the event of the passage
after the date hereof of any law of any Governmental Authority deducting from
the value of the Premises for the purposes of taxation any lien or deed of trust
thereon, or changing in any way the laws for the taxation of mortgages or deeds
of trust or debts secured thereby for federal, state or local purposes, or the
manner of collection of any such taxes, and imposing a tax, either directly or
indirectly, on mortgages or deeds of trust or debts secured thereby, the holder
of this Deed of Trust shall have the right to declare
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the Indebtedness due on a date to be specified by not less than 30 days' written
notice to be given to Grantor unless within such 30-day period Grantor shall
assign as an Obligation hereunder the payment of any tax so imposed until full
payment of the Indebtedness and such assumption shall be permitted by law.
25. Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been sufficiently given or
served when served in the same manner as set forth for notices in the Credit
Agreement. The Trustee's address for notices shall be the Trustee's address
given on the first page of this Deed of Trust.
26. No Oral Modification. This Deed of Trust may not be
changed or terminated orally. Any agreement made by Grantor and Beneficiary
after the date of this Deed of Trust relating to this Deed of Trust shall be
superior to the rights of the holder of any intervening or subordinate deed of
trust, lien or encumbrance. Trustee's execution of any written agreement between
Grantor and Beneficiary shall not be required for the effectiveness thereof as
between Grantor and Beneficiary.
27. Partial Invalidity. In the event any one or more of the
provisions contained in this Deed of Trust shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary anything contained in this Deed of
Trust or in any provisions of the Indebtedness or Loan Documents, the
obligations of Grantor and of any other obligor under the Indebtedness or Loan
Documents shall be subject to the limitation that Beneficiary shall not charge,
take or receive, nor shall Grantor or any other obligor be obligated to pay to
Beneficiary, any amounts constituting interest or loan charges in excess of the
maximum rate or amount permitted by law to be charged by Beneficiary.
28. Grantor's Waiver of Rights. To the fullest extent
permitted by law, Grantor waives the benefit of all laws now existing or that
may subsequently be enacted providing for (i) any appraisement before sale of
any portion of the Trust Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Trust Property from attachment, levy or sale under execution or
exemption from civil process. To the full extent Grantor may do so, Grantor
agrees that Grantor will not at any time insist upon, plead, claim or take the
benefit or advantage of any law now or hereafter in force providing for any
appraisement, valuation, stay, exemption, extension or redemption, or requiring
foreclosure of this Deed of Trust before exercising any other remedy granted
hereunder and Grantor, for Grantor and its successors and assigns, and for any
and all persons ever claiming any interest in the Trust Property, to the extent
permitted by law, hereby
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waives and releases all rights of redemption, valuation, appraisement, stay of
execution, notice of election to mature or declare due the whole of the secured
indebtedness and marshalling in the event of exercise by Trustee or Beneficiary
of the power of sale or other rights hereby created.
29. Remedies Not Exclusive. Beneficiary and Trustee shall be
entitled to enforce payment of the Indebtedness and performance of the
Obligations and to exercise all rights and powers under this Deed of Trust or
under any of the other Loan Documents or other agreement or any laws now or
hereafter in force, notwithstanding some or all of the Indebtedness and
Obligations may now or hereafter be otherwise secured, whether by deed of trust,
mortgage, security agreement, pledge, lien, assignment or otherwise. Neither the
acceptance of this Deed of Trust nor its enforcement, shall prejudice or in any
manner affect Beneficiary's or Trustee's right to realize upon or enforce any
other security now or hereafter held by Beneficiary or Trustee, it being agreed
that Beneficiary and Trustee shall be entitled to enforce this Deed of Trust and
any other security now or hereafter held by Beneficiary or Trustee in such order
and manner as Beneficiary may determine in its absolute discretion. No remedy
herein conferred upon or reserved to Trustee or Beneficiary is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. Every
power or remedy given by any of the Loan Documents to Beneficiary or Trustee or
to which either may otherwise be entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
Beneficiary or Trustee, as the case may be. In no event shall Beneficiary or
Trustee, in the exercise of the remedies provided in this Deed of Trust
(including, without limitation, in connection with the assignment of Rents, or
the appointment of a receiver and the entry of such receiver on to all of any
part of the Trust Property), be deemed a "mortgagee in possession," and neither
Beneficiary nor Trustee shall in any way be made liable for any act, either of
commission or omission, in connection with the exercise of such remedies.
30. Multiple Security. If (a) the Premises shall consist of
one or more parcels, whether or not contiguous and whether or not located in the
same county, or (b) in addition to this Deed of Trust, Beneficiary shall now or
hereafter hold or be the beneficiary of one or more additional mortgages, liens,
deeds of trust or other security (directly or indirectly) for the Indebtedness
upon other property in the State in which the Premises are located (whether or
not such property is owned by Grantor or by others) or (c) both the
circumstances described in clauses (a) and (b) shall be true, then to the
fullest extent permitted by law, Beneficiary may, at its election, commence or
consolidate in a single trustee's sale or foreclosure action all trustee's sale
or foreclosure proceedings against all such collateral securing the Indebtedness
(including the Trust Property), which action may be brought or consolidated in
the courts of, or
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sale conducted in, any county in which any of such collateral is located.
Grantor acknowledges that the right to maintain a consolidated trustee's sale or
foreclosure action is a specific inducement to Beneficiary to extend the
Indebtedness, and Grantor expressly and irrevocably waives any objections to the
commencement or consolidation of the foreclosure proceedings in a single action
and any objections to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have. Grantor further agrees that if
Trustee or Beneficiary shall be prosecuting one or more foreclosure or other
proceedings against a portion of the Trust Property or against any collateral
other than the Trust Property, which collateral directly or indirectly secures
the Indebtedness, or if Beneficiary shall have obtained a judgment of
foreclosure and sale or similar judgment against such collateral (or, in the
case of a trustee's sale, shall have met the statutory requirements therefor
with respect to such collateral), then, whether or not such proceedings are
being maintained or judgments were obtained in or outside the State in which the
Premises are located, Beneficiary may commence or continue any trustee's sale or
foreclosure proceedings and exercise its other remedies granted in this Deed of
Trust against all or any part of the Trust Property and Grantor waives any
objections to the commencement or continuation of a foreclosure of this Deed of
Trust or exercise of any other remedies hereunder based on such other
proceedings or judgments, and waives any right to seek to dismiss, stay, remove,
transfer or consolidate either any action under this Deed of Trust or such other
proceedings on such basis. The commencement or continuation of proceedings to
sell the Trust Property in a trustee's sale, to foreclose this Deed of Trust or
the exercise of any other rights hereunder or the recovery of any judgment by
Beneficiary or the occurrence of any sale by the Trustee in any such proceedings
shall not prejudice, limit or preclude Beneficiary's right to commence or
continue one or more trustee's sales, foreclosure or other proceedings or obtain
a judgment against (or, in the case of a trustee's sale, to meet the statutory
requirements for, any such sale of) any other collateral (either in or outside
the State in which the Real Estate is located) which directly or indirectly
secures the Indebtedness, and Grantor expressly waives any objections to the
commencement of, continuation of, or entry of a judgment in such other sales or
proceedings or exercise of any remedies in such sales or proceedings based upon
any action or judgment connected to this Deed of Trust, and Grantor also waives
any right to seek to dismiss, stay, remove, transfer or consolidate either such
other sales or proceedings or any sale or action under this Deed of Trust on
such basis. It is expressly understood and agreed that to the fullest extent
permitted by law, Beneficiary may, at its election, cause the sale of all
collateral which is the subject of a single trustee's sale or foreclosure action
at either a single sale or at multiple sales conducted simultaneously and take
such other measures as are appropriate in order to effect the agreement of the
parties to dispose of and administer all collateral securing the Indebtedness
(directly or indirectly) in the most economical and least time-consuming manner.
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31. Successors and Assigns. All covenants of Grantor contained
in this Deed of Trust are imposed solely and exclusively for the benefit of
Beneficiary and Trustee and their respective successors and assigns, and no
other person or entity shall have standing to require compliance with such
covenants or be deemed, under any circumstances, to be a beneficiary of such
covenants, any or all of which may be freely waived in whole or in part by
Beneficiary or Trustee at any time if in the sole discretion of either of them
such waiver is deemed advisable. All such covenants of Grantor shall run with
the land and bind Grantor, the successors and assigns of Grantor (and each of
them) and all subsequent owners, encumbrancers and tenants of the Trust
Property, and shall inure to the benefit of Beneficiary, Trustee and their
respective successors and assigns. Without limiting the generality of the
foregoing, any successor to Trustee appointed by Beneficiary shall succeed to
all rights of Trustee as if such successor had been originally named as Trustee
hereunder. The word "Grantor" shall be construed as if it read "Grantors"
whenever the sense of this Deed of Trust so requires and if there shall be more
than one Grantor, the obligations of the Grantors shall be joint and several.
32. No Waivers, etc. Any failure by Beneficiary to insist upon
the strict performance by Grantor of any of the terms and provisions of this
Deed of Trust shall not be deemed to be a waiver of any of the terms and
provisions hereof, and Beneficiary or Trustee, notwithstanding any such failure,
shall have the right thereafter to insist upon the strict performance by Grantor
of any and all of the terms and provisions of this Deed of Trust to be performed
by Grantor. Beneficiary may release, regardless of consideration and without the
necessity for any notice to or consent by the beneficiary of any subordinate
deed of trust or the holder of any subordinate lien on the Trust Property, any
part of the security held for the obligations secured by this Deed of Trust
without, as to the remainder of the security, in anywise impairing or affecting
this Deed of Trust or the priority of this Deed of Trust over any subordinate
lien or deed of trust.
33. Governing, Law, etc. This Deed of Trust shall be governed
by and construed in accordance with the laws of the State in which the Premises
are located, except that Grantor expressly acknowledges that by its terms the
Credit Agreement shall be governed and construed in accordance with the laws of
the State of New York, without regard to principles of conflict of law, and for
purposes of consistency, Grantor agrees that in any in personam proceeding
related to this Deed of Trust the rights of the parties to this Deed of Trust
shall also be governed by and construed in accordance with the laws of the State
of New York governing contracts made and to be performed in that State, without
regard to principles of conflict of law.
34. WAIVER OF TRIAL BY JURY. GRANTOR, TRUSTEE AND
BENEFICIARY EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY
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WAIVE TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT OR PROCEEDING RELATING TO THIS
DEED OF TRUST AND FOR ANY COUNTERCLAIM BROUGHT THEREIN.
35. Certain Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Deed of Trust shall be used interchangeably in singular or plural form
and the word "Grantor" shall mean "each Grantor or any subsequent owner or
owners of the Trust Property or any part thereof or interest therein," the word
"Beneficiary" shall mean "Beneficiary or any successor Administrative Agent,"
the word "Trustee" shall mean "Trustee and any successor trustee hereunder," the
word "Notes" shall mean "the notes that may from time to time be given pursuant
to the terms of the Credit Agreement or any other evidence of indebtedness
secured by this Deed of Trust," the word "person" shall include any individual,
corporation, partnership, trust, unincorporated association, government,
governmental authority, or other entity, and the words "Trust Property" shall
include any portion of the Trust Property or interest therein. Whenever the
context may require, any pronouns used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns and pronouns
shall include the plural and vice versa. The captions in this Deed of Trust are
for convenience or reference only and in no way limit or amplify the provisions
hereof.
36. Reconveyance of Deed Of Trust. Upon payment in full of the
Indebtedness, the termination of all Commitments under the Credit Agreement
secured hereby and the compliance with the Obligations then required to be
complied with, Beneficiary shall release the encumbrance of this Deed of Trust.
If any of the Trust Property shall be sold, transferred or otherwise disposed of
by Grantor in a transaction expressly permitted by the Credit Agreement, then
Beneficiary shall execute and deliver, and shall cause Trustee to execute and
deliver to Grantor (at the sole cost and expense of Grantor) all releases,
reconveyances or other documents reasonably necessary or desirable for the
release of such Trust Property from the encumbrance of this Deed of Trust.
37. Conflict With Credit Agreement. In the event of any
conflict or inconsistency between the terms and provisions of this Deed of Trust
and the terms and provisions of the Credit Agreement, the terms and provisions
of the Credit Agreement shall govern, other than with respect to the Section of
this Deed of Trust captioned "Governing Law, etc.". By their execution of the
Credit Agreement, each Lender hereby agrees that it shall not have the right to
institute any suit for enforcement of Notes or any other Indebtedness secured by
this Deed of Trust or any other Security Document, if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would, under
applicable law, result in the surrender, impairment, waiver or loss of the Lien
of this Deed of Trust or any other Security Document or
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impede or delay the enforcement of the Lien of this Deed of Trust or any other
Security Document.
38. Receipt of Copy. Grantor acknowledges that it has received
a true copy of this Deed of Trust.
39. Notice Pursuant to Section ▇▇-▇▇-▇▇▇ of Tennessee Code
Annotated. This Deed of Trust secures future advances which are "obligatory
advances" as defined in the aforesaid statute. This Deed of Trust is for
commercial purposes as defined in said statute.
This Deed of Trust has been duly executed by Grantor as of the
date first above written.
Signed, sealed and TELEX COMMUNICATIONS, INC.
delivered in our
presence: By:_______________________________
Name:
Title:
___________________________________
Name:
___________________________________
Name:
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STATE OF MINNESOTA )
: ss.:
COUNTY OF DAKOTA )
Personally appeared before
me,_____________________________________, with whom I am personally acquainted
(or proved to me on the basis of satisfactory evidence) and who, upon oath,
acknowledged himself to be the_____________________of TELEX COMMUNICATIONS,
INC., the within named bargainor, a Delaware corporation, and that he as such
____________________________, being authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as such_______________________.
WITNESS my hand and seal at office this ___ day of February,
1998.
__________________________
Notary Public
My commission expires:
____________________________
(embossed seal)
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▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ County
(page 1 of 2)
SCHEDULE A
Situated in District No. Six (6) of ▇▇▇▇▇ County, Tennessee, bounded on the West
by ▇▇▇▇▇ County Farm, on the North by State Rural Road Project No. 8-2540-(4) as
shown by State Road Plans dated 1957 & 1958 in State File "Y" Div. 12,
Nashville, Tennessee, on the East by ▇▇▇▇▇, ▇▇▇▇▇▇ and the Chemetron
Corporation, on the South by the Chemetron Corporation and the ▇▇▇▇▇ County
Farm, and more particularly described as follows:
BEGINNING at an iron pin in the southern right-of-way line of the aforementioned
highway at the intersection of the eastern right-of-way line of a proposed 50
foot street leading in a south easterly direction and running thence with said
highway and a curve to the right with a center line radius of 1041.74 feet and a
southern right-of-way radius of 1011.74 feet for an arc distance of 450.00 feet
the chord of which bears North 54 deg. 01 min. 29 seconds East a distance of
446.30 feet to a concrete right-of-way post located 30 feet south of highway
center line station P. T. 54+37.8; thence South 23 deg. 14 min. 00 seconds Est
10.0 feet to a concrete right-of-way post 40.0 feet south of center line station
P.T. 54+37.8; thence North 66 deg. 46 min. East with the southern right-of-way
of said highway 254.1 feet to a concrete right-of-way post 40 feet south of the
center line station P. C. 56+91.9; thence with a curve to the left with a radius
of 1185.92 for an arc distance of 318.86 feet the chord of which bears North 59
deg. 03 min. 51 seconds East a distance of 317.90 feet to a concrete
right-of-way post opposite center line station 60 + 00; thence South 38 deg. 38
min. 18 seconds East 15.0 feet to a concrete right-of-way post opposite center
line station 60 + 00 and 55 feet south easterly thereof; thence continuing with
a curve to the left whose radius is 1200.92 feet through an arc of 262.00 feet
the chord of which bears North 45 deg. 06 min. 42 seconds East for a distance of
261.48 feet to a right-of-way post opposite center line station 62 + 50; thence
South 51 deg. 08 min. 18 seconds East 45.0 feet to a concrete right-of-way post
100.00 feet south easterly of aforesaid center line station; thence continuing
with a curve to the left whose radius is 1245.92 feet for an arc distance of
262.97 feet the chord of which bears North 32 deg. 48 min. 51 seconds East a
distance of 262.54 feet to a concrete right-of-way post 100.00 feet
southeasterly of center line station P. T. 64 + 91.9 feet; thence North 63 deg.
14 min. 00 seconds West 60.0 feet to a concrete right-of-way post 40 feet from
center line station P. T. 64+ 91.9 feet; thence parallel with the center line of
said highway and 40.0 feet therefrom North 26 deg. 46 min. 00 seconds East 135.5
feet to an iron pipe in said line and corner to ▇▇▇▇▇ ▇▇▇▇▇▇; thence South 70
deg. 57 min. East with the old line 546.8 feet to a concrete post corner No. 4
to the Chemetron Corporation; thence with the eastern
35
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ County
(page 2 of 2)
margin of an old road and the Chemetron Corporation line five calls as follows:
South 10 deg. 03 min. East 366.7 feet to a concrete post corner No. 5; thence
South 57 deg. 36 min. West 49.3 feet to a concrete post corner No. 6; thence
South 77 deg. 45 min. West 49.35 feet to a concrete post corner No. 7; thence
North 89 deg. 58 min. West 198.1 feet to a concrete post corner No. 8; thence
North 84. deg. 00 mi. West 197.0 feet to a concrete post corner No. 9; thence
leaving the margin of the old road and continuing with the Chemetron Corporation
line two courses and distances as follows: South 52 deg. 15 min. West 621.8 feet
to a concrete post corner No. 10; thence South 25 deg. 45 min. West passing a
meander corner on the north bank of Sinking Creek at 109.0 feet and continuing
to the center line of said creek; thence up the center line of the creek as it
meanders as follows by meander line as run from aforesaid meander corner on the
North bank of the creek, South 44 deg. 35 min. West 244.3 feet to a stake on
north bank of creek; thence South 51 deg. 44 min. West 155.6 feet to a stake;
thence South 35 deg. 48 min. West 180.6 feet passing the center of a 48 inch
sycamore tree about 12 feet to an iron pipe set on the north bank of Sinking
Creek about 15 feet Northwest of the center line of the creek and on the eastern
margin of a proposed 50 foot street; thence with the remaining County Farm lands
and the eastern margin of said proposed street North 44 deg. 04 min. West 580.0
feet to an iron pin the Beginning corner, containing eighteen and one-half (18
1/2) acres, more or less.