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EXHIBIT 10.3.1.h
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DEED OF TRUST, ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT
From
TELXON CORPORATION
a Delaware Corporation
whose address is
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▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
to
FIRST AMERICAN TITLE INSURANCE COMPANY,
a California Corporation
whose address is
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▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
as Trustee for the benefit of
THE BANK OF NEW YORK, a New York State Banking
Association, as Agent for the Lenders, the Issuer and the Swing Line Lender
whose address is:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Location of Premises:
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Record and Return to:
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
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DEED OF TRUST, ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT (this "DEED OF TRUST"), dated
as of March 26, 1999, is made by TELXON CORPORATION, a Delaware corporation,
having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ (the
"BORROWER") to FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation
(the "TRUSTEE"), for the benefit of THE BANK OF NEW YORK (the "BENEFICIARY"), as
Agent (the "AGENT") for the Lenders, the Issuer and The Swing Line Lender (each
as defined in the Credit Agreement as hereinafter defined) under the Credit
Agreement (as hereinafter defined).
RECITALS:
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A. The Borrower is justly indebted to the Beneficiary, as
Agent, pursuant to the terms and conditions of that certain Credit Agreement
dated as of March 8, 1996 by and among Borrower, the Lenders from time to time
party thereto, and the Bank of New York, as Issuer, Swing Line Lender and Agent,
as amended by Amendment No. 1, dated as of August 6, 1996, Amendment No. 2,
dated as of December 16, 1996, Amendment No. 3, dated as of December 12, 1997,
Waiver and Agreement, dated as of December 29, 1998, Waiver Extension and
Agreement dated as of February 12, 1999, and Second Waiver Extension and
Amendment No. 4, (the "SECOND WAIVER AGREEMENT") dated of even date herewith (as
the same may hereafter be amended, modified, supplemented or waived from time to
time the "CREDIT AGREEMENT");
B. As a condition of the Beneficiary executing and delivering
the Second Waiver Agreement, the Beneficiary has required that the Borrower
execute this Deed of Trust to secure the Obligations (as defined in the Credit
Agreement) of the Borrower under the Credit Agreement.
C. All of the property described under 1 through 4 below is
herein collectively called the "REAL PROPERTY COLLATERAL," which together with
all of the property described under 5 through 9 below (the "PERSONAL PROPERTY
COLLATERAL") is herein collectively called the "MORTGAGED PROPERTY."
(1) The lands and premises described in EXHIBIT A (and all
hereafter acquired estate, right, title and interest of the Borrower in
and to any and all other lands and premises), together with all and
singular the tenements, hereditaments, easements, rights of way and
appurtenances now or hereafter thereunto belonging or now or hereafter
in
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anywise appertaining and also all estate, right, title and interest of
the Borrower in and to the same and in and to the streets, ways,
sidewalks, alleys and areas now or hereafter adjacent thereto or now or
hereafter used in connection therewith (collectively, the "Land");
(2) All buildings and other improvements now or hereafter
erected on the Land (collectively, the "IMPROVEMENTS");
(3) Any and all reversions and remainders of the Land and/or
the Improvements and all estate, right, title and interest now owned or
hereafter acquired by the Borrower in and to any and all present and
future leases, subleases, occupancy agreements and similar arrangements
(and all renewals, modifications, and extensions thereof) in connection
with the Land, the Improvements and/or the Personal Property
(collectively, the "SPACE LEASES") and all rents, revenues, issues,
income and profits payable thereunder or otherwise in connection with
the Land, the Improvements and/or the Personal Property;
(4) All mineral, water, oil and gas rights and privileges and
royalties pertaining to the Land.
(5) All estate, right, title and interest now owned or
hereafter acquired by the Borrower in and to all fixtures, fittings,
appliances, apparatus, equipment, goods, machinery, furnishings,
furniture and other personal property (whether tangible or intangible)
and any and all replacements thereof and additions thereto, now or
hereafter affixed or attached to, placed upon or used or usable in
connection with the Land and/or the Improvements (collectively, the
"PERSONAL PROPERTY");
(6) All estate, right, title and interest now owned or
hereafter acquired by the Borrower in and to all proceeds of the
insurance required to be maintained under PARAGRAPH 7 and all awards
heretofore or hereafter made with respect to the Land, the Improvements
and/or the Personal Property as the result of the exercise of the power
of eminent domain, including, without limitation, any awards for
changes of the grades of streets and/or as the result of any other
damage to the Land, the Improvements and/or the Personal Property for
which compensation shall be given by any governmental authority (a
"TAKING"), all of which are hereby assigned to the Beneficiary who is
hereby authorized to collect and receive the proceeds thereof and to
give proper receipts and acquittances therefor, and to apply the same
in accordance with this Deed of Trust;
(7) Any and all air rights, development rights, zoning rights
and other similar rights or interests which benefit or are appurtenant
to the Land and/or the Improvements and any and all proceeds arising
therefrom;
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(8) All estate, right, title and interest now owned or
hereafter acquired by the Borrower in and to any and all present and
future licenses, authorizations, consents, approvals, permits, grants
and franchises (including without limitation those set forth in EXHIBIT
B attached hereto) which are necessary or desirable in connection with
the use, occupancy, construction, maintenance, repair, replacement,
restoration, operation, management or ownership of the Land, the
Improvements and/or the Personal Property (collectively, the
"PERMITS"); and
(9) All estate, right, title and interest now owned or
hereafter acquired by the Borrower in and to any and all present and
future agreements, contracts, documents, guaranties, warranties,
instruments, certificates and indentures (including, without
limitation, those agreements, if any, set forth in EXHIBIT C attached
hereto) in connection with the use, occupancy, maintenance, repair,
replacement, restoration, operation, management or ownership of the
Land, the Improvements and/or the Personal Property (collectively, the
"OPERATING AGREEMENTS").
GRANTING CLAUSE
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NOW, THEREFORE, in consideration of $10.00 and other good and
valuable consideration, the receipt whereof is hereby acknowledged, and in order
to secure the following (collectively, the "OBLIGATIONS"): (a) the payment of
all moneys payable pursuant to or in connection with the Credit Agreement, (b)
the payment of all other moneys required to be paid by any of the other Loan
Documents (as defined in the Credit Agreement) including without limitation the
payment of all moneys due under certain Notes (as defined in the Credit
Agreement) in the current aggregate principal sum of up to SIXTY MILLION DOLLARS
($60,000,000.00) bearing interest as therein stipulated and having a maturity
date of March 8, 2001, and (c) the performance and observance of the covenants
and agreements contained in the Credit Agreement and any of the other Loan
Documents, the Borrower does hereby irrevocably:
▇. ▇▇▇▇▇, bargain, sell, assign, transfer and convey the Real
Property Collateral, whether now owned or hereafter acquired, to the Trustee, IN
TRUST, WITH POWER OF SALE AND RIGHT OF ENTRY AND POSSESSION, pursuant to this
Deed of Trust and applicable law, for the benefit of the Beneficiary, subject to
the rights of the Beneficiary under the assignment made in PARAGRAPH B below;
TO HAVE AND TO HOLD the Real Property Collateral to the
Trustee and the Trustee's successors and assigns forever, subject to all of the
terms, conditions, covenants and agreements herein set forth, for the security
and benefit of Beneficiary and its successors and assigns.
B. Assign and transfer to the Beneficiary all of the Rents (as
hereinafter defined); and
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C. Pledge, assign, transfer and grant to the Beneficiary, a
lien on and a security interest in, all of the Borrower's right, title and
interest, whether now owned or hereafter acquired, in, to and under the Personal
Property Collateral.
TO HAVE AND TO HOLD unto the Beneficiary forever.
PROVIDED ALWAYS, that if the Borrower shall pay in full the
Obligations according to the terms of this Deed of Trust, the Credit Agreement
and the other Loan Documents and abide by and comply with each and every
covenant and agreement set forth in this Deed of Trust, this Credit Agreement
and the other Loan Documents, then this Deed of Trust and the estate hereby
granted shall cease, terminate and become void.
AND the Borrower hereby covenants with the Beneficiary as
follows:
1. PAYMENT OF THE OBLIGATIONS. The Borrower shall (a) pay the
Obligations according to the terms of this Deed of Trust, the Credit Agreement
and the other Loan Documents and (b) abide by and comply with each and every
covenant and agreement set forth in this Deed of Trust, the Credit Agreement and
the other Loan Documents. The Borrower acknowledges that as of the date hereof
it has no offsets, defenses or counterclaims with respect to the Obligations.
2. TITLE. The Borrower shall forever warrant, maintain,
preserve and defend the title to the Mortgaged Property, the lien of and
security interest created by this Deed of Trust and the Beneficiary's first lien
on and first security interest in the Mortgaged Property against the claims and
demands of all Persons whomsoever.
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants as follows:
(a) the Borrower is lawfully seized and possessed of
good and marketable title to an indefeasible fee simple estate
in and to the Real Property Collateral, subject to no
mortgage, lien, charge, encumbrance, lease, sublease, other
matters of title or adverse item, except the Permitted
Encumbrances (as hereinafter defined); no improvements on
adjoining property encroach upon the Land and none of the
Improvements encroach upon adjoining property or easement
areas; and to the best of Borrower's knowledge there are no
existing violations of any easements, covenants or
restrictions encumbering the Real Property Collateral (or
events which with notice or the passage of time, or both,
would constitute a violation);
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(b) the Borrower has good title to the Mortgaged
Property (other than the Real Property Collateral), subject to
no lien, charge, encumbrance or other matter other than the
Permitted Encumbrances;
(c) upon the execution of this Deed of Trust, the
Beneficiary will have a valid and enforceable first mortgage
lien on and/or a valid enforceable first security interest in
all of the Borrower's rights, property and interests included
in the Mortgaged Property;
(d) the Mortgaged Property and the use, occupancy,
maintenance, repair, replacement, restoration, operation,
management and ownership thereof comply with all Legal
Requirements (as hereinafter defined) including without
limitation all zoning, building code, land use and similar
land regulation requirements and a validly issued permanent
certificate of occupancy for the existing Improvements dated *
and bearing certificate number * has been issued and is in
effect (a true and complete copy of which Borrower has or
shall cause to be delivered to the Beneficiary);
(e) there has been no use, discharge, distribution,
generation, manufacture, refinement, transportation,
treatment, storage, handling, disposition, transfer,
production, processing, presence, release or threatened
release of any Hazardous Substance (as hereinafter defined)
on, over, under, from, at, in and/or about the Mortgaged
Property and the Borrower has not received any notice of a
violation of any Environmental Law (as hereinafter defined),
except as set forth in any Phase I enviornmental report
prepared on behalf of the Agent;
(f) there has been no use, occupancy, maintenance,
repair, replacement, restoration, operation, management or
ownership of the Mortgaged Property (or any portion thereof)
in violation of any Environmental Law;
(g) there is no (i) pending condemnation, labor
dispute or administrative agency investigation or litigation
concerning the Improvements and (ii) no material casualty,
structural defect or other adverse physical condition which
materially and adversely would affect the Improvements and the
business conducted in connection therewith and to the best of
Borrower's knowledge, no such condemnation, labor dispute or
administrative agency investigation or litigation, casualty,
structural defect or other adverse physical condition is
threatened or threatening;
(h) the Permits set forth in Exhibit B constitute the
only Permits necessary for the use, occupancy, maintenance,
repair, replacement, restoration, operation, management and
ownership of the Mortgaged Property; the Permits have been
validly issued and are in full force and effect; there are no
actions,
* 5-26-94 #93065019 ▇▇▇▇ ▇▇▇▇▇▇▇
* 11-5-93 #93048297 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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litigations, proceedings, claims or investigations pending,
contemplated or threatened with respect to any of the Permits;
(i) the Operating Agreements, if any, set forth in
EXHIBIT C constitute the only Operating Agreements (i)
affecting the Mortgaged Property and (ii) necessary for the
use, occupancy, maintenance, repair, replacement, restoration,
operation, management and ownership of the Mortgaged Property;
no event of default or event which with notice or the passage
of time or both would constitute such an event of default is
existing under any of the Permits or Operating Agreements;
(j) all roads and utilities (including, without
limitation, roadways, driveways, walkways, sidewalks, water,
oil, gas, telephone, sewer and electricity) which are
necessary or desirable for the use, occupancy, maintenance,
repair, replacement, restoration, operation, management and
ownership of the Mortgaged Property (and all portions thereof)
(i) have been connected and completed, (ii) are available for
use and (iii) enter the Land directly through adjoining public
streets and do not pass through private land;
(k) neither the Mortgaged Property nor any portion
thereof has been (i) taken by or transferred in lieu of
condemnation, eminent domain or similar proceedings and there
are no pending or threatened condemnation, eminent domain or
similar proceedings with respect to the Mortgaged Property or
(ii) damaged or destroyed by any casualty or other event;
(l) except for the Space Leases set forth in EXHIBIT
D, the Mortgaged Property is vacant of tenants and free of
Space Leases;
(m) the Borrower has not requested, applied for or
given its consent to, and has no knowledge of, any pending
zoning change or variance with respect to the Mortgaged
Property or any property adjoining the Land;
(n) the Land and the Improvements are assessed as a
separate tax lot and no part of the Land or the Improvements
is a part of any other tax lot;
(o) the Borrower does not owe any monies to any
contractor, supplier or materialman for labor or materials
performed, rendered or supplied in connection with the
Mortgaged Property for which such Person could claim a lien
against the Mortgaged Property;
(p) there are no incinerators, septic tanks,
underground storage tanks, PCB-containing equipment,
asbestos-containing material, formaldehyde insulators or
cesspools on, under, at, in and/or about the Mortgaged
Property, and all waste
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is discharged from the Mortgaged Property into a public
sanitary sewer system in accordance with all Legal
Requirements;
(q) the Mortgaged Property is an independent unit
which does not rely on any drainage, sewer, access or other
facilities located on any property not included in the
Mortgaged Property: (i) to fulfill any Legal Requirement, (ii)
for structural support, (iii) to furnish to the Mortgaged
Property any building systems or utilities or (iv) to fulfill
the requirements of any agreement affecting the Mortgaged
Property;
(r) no building or other improvement not included in
the Mortgaged Property relies on any part of the Mortgaged
Property: (i) to fulfill any Legal Requirement, (ii) for
structural support or (iii) for the furnishing to such
building or improvement of any building systems or utilities;
4. CERTAIN DEFINITIONS. The following terms shall have the
meanings herein specified: "PERMITTED ENCUMBRANCES" means this Deed of Trust and
those matters listed in EXHIBIT E attached hereto. "PERSON" means any
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock company, company, trust, unincorporated organization,
entity or government (or any authority, agency or political subdivision
thereof). Capitalized terms used herein and not defined herein shall have the
meanings given to such terms in the Credit Agreement both before and after the
termination of the Credit Agreement. Terms defined herein shall apply equally in
the singular and plural forms.
5. FURTHER ASSURANCES; PAYMENTS. (a) The Borrower shall
execute, acknowledge and deliver, from time to time within 10 days after demand
therefor, such further instruments as the Beneficiary may require to accomplish
the purposes of this Deed of Trust, the Credit Agreement or any other Loan
Document(or any portion thereof) (collectively, the "FURTHER INSTRUMENTS"). If
the Borrower shall fail to execute, acknowledge or deliver any Further
Instrument, the Beneficiary shall be and is hereby irrevocably appointed the
agent and attorney-in-fact of the Borrower (which power is coupled with an
interest) to execute, acknowledge and deliver such Further Instrument.
(b) The Borrower immediately upon the execution,
acknowledgment and delivery of this Deed of Trust, and thereafter from time to
time within 10 days after demand therefor, shall cause this Deed of Trust and
each Further Instrument to be filed, registered and/or recorded, and refiled,
reregistered and/or rerecorded in such manner and in such places as may be
required by any present or future Legal Requirement in order to (i) publish
notice of and/or (ii) perfect the lien and estate of this Deed of Trust in and
to the Mortgaged Property. The Borrower shall pay to the Beneficiary all costs
and expenses (including, without limitation, filing, registration and recording
taxes, fees, charges, duties, stamps and imposts) related to such filing,
registration and/or recording.
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(c) The Borrower shall pay: (i) all filing, registration and
recording taxes, fees and charges, all refiling, reregistration and rerecording
taxes, fees and charges and all other costs and expenses in connection with: (1)
the execution, delivery, acknowledgment and/or recordation of this Deed of
Trust, any of the other Loan Documents and each Further Instrument and/or (2)
the transactions contemplated hereby (including, without limitation, title
insurance premiums, title examination charges and legal, consulting,
engineering, appraisal, survey and inspection fees, expenses and disbursements)
and (ii) all federal, state, county and municipal stamps, taxes, duties,
imposts, assessments and charges in connection with the execution, delivery,
acknowledgment and/or recordation of this Deed of Trust, any of the other Loan
Documents and each Further Instrument.
6. CREATION OF OTHER LIENS. The Borrower shall not create or
suffer to be created any pledges, mortgages, liens, charges, encumbrances,
condominium documentation or other matters of title upon the Mortgaged Property
prior to, on a parity with or subordinate to the lien of this Deed of Trust,
provided, that the Borrower may enter into a deed of trust with Bank One (as
defined in the Credit Agreement) in form satisfactory to the Agent, which shall
be subordinate in all respects to the security interest and lien granted to the
Agent hereunder and shall be subject to the terms and conditions of the
Intercreditor Agreement (as defined in the Credit Agreement).
7. INSURANCE. (a) The Borrower shall cause the Improvements
and the Personal Property to be kept insured for the benefit of the Beneficiary
(i) against loss or damage under an "all risk" type of casualty insurance policy
(including, without limitation, loss or damage by fire, lightning, windstorm,
hail, explosion, aircraft, vehicles, vandalism and malicious mischief and
smoke), (ii) (if the Land or any portion thereof is located in an area
identified by the Secretary of Housing and Urban Development as an area having
special flood hazards and in which flood insurance has been made available under
the National Flood Insurance Act of 1968 or otherwise) against flood risks,
(iii) (as, when and to the extent required by the Beneficiary and within 10 days
after request therefor by the Beneficiary ) against any other risk insured
against from time to time under good insurance practices by Persons operating
and/or owning like properties in the locality of the Land, and (iv) against such
other risks as may be included in the broad form of extended coverage insurance
from time to time available. All such insurance shall be in an amount
satisfactory to the Beneficiary, and in any event not less than 100% of Full
Replacement Cost (as hereinafter defined). "FULL REPLACEMENT COST" means the
actual replacement cost of the Improvements and the Personal Property (excluding
foundations, footings and excavation costs) without deduction for physical
depreciation. Full Replacement Cost shall be determined at the request of the
Beneficiary (but not more frequently than once in any twelve month period). Such
determination shall be made by an architect, appraiser, appraisal company or one
of the insurers selected by the Beneficiary and the cost thereof shall be
promptly paid by the Borrower. Each insurance policy in effect pursuant to this
PARAGRAPH 7(a) shall contain a "replacement cost endorsement", and losses
thereunder shall be payable to the Beneficiary pursuant to a standard mortgagee
endorsement, without contribution, substantially equivalent to the standard
mortgagee endorsement (a "MORTGAGEE ENDORSEMENT") in the state
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where the Land is located. The Borrower shall promptly notify the Beneficiary of
any loss in connection with the Improvements and/or the Personal Property. The
Beneficiary shall have the right to join the Borrower in adjusting any loss
covered by any insurance policy in effect pursuant to this PARAGRAPH 7(a) if
such loss is in excess of $10,000. The Borrower shall not take out separate
insurance (and shall not permit the same to be taken out) in connection with the
Improvements and/or the Personal Property concurrent in form or contributing in
the event of loss with that required by this Deed of Trust unless losses
thereunder shall be payable to the Mortgagee pursuant to a Mortgagee
Endorsement.
(b) The Borrower shall maintain insurance against claims for
bodily injury and property damage occurring on, in and/or about the Land, the
Improvements and the adjoining streets under a policy of commercial general
liability insurance, with such limits as may be reasonably required by the
Beneficiary from time to time, and in any event not less than $3,000,000 per
occurrence for bodily injury and property damage combined. Each insurance policy
in effect pursuant to this PARAGRAPH 7(b) shall name the Beneficiary (and other
Persons designated by the Beneficiary) as an additional insured.
(c) If there exist any boilers at the Land and/or at the
Improvements, the Borrower shall maintain boiler insurance, with such limits as
may be required by the Beneficiary from time to time. Each insurance policy in
effect pursuant to this PARAGRAPH 7(c) shall contain a "replacement cost
endorsement", and losses thereunder shall be payable to the Beneficiary. The
Beneficiary shall have the right to join the Borrower in adjusting any loss
covered by such insurance policy if such loss in excess of $7,500.
(d) The Borrower shall maintain workmen's compensation
insurance, with such limits as may be required by the Legal Requirements from
time to time.
(e) Upon the execution and delivery of this Deed of Trust and
thereafter not less than 30 days prior to the expiration date of each insurance
policy then in effect pursuant to PARAGRAPH 7 (a), (b), (c) or (d), the Borrower
shall deliver to the Beneficiary an original of such insurance policy (or a
certificate thereof, such certificate shall be in form and substance acceptable
to the Beneficiary and shall be duly executed by the insurance company issuing
the relevant insurance policy) or a renewal insurance policy (or a certificate
thereof, such certificate shall be in form and substance acceptable to the
Beneficiary and shall be duly executed by the insurance company issuing the
relevant insurance policy), as the case may be, bearing a notation evidencing
payment of the premium therefor and accompanied by other proof of payment
satisfactory to the Beneficiary. Each such insurance policy shall (i) be written
by a company or companies having an A.M. Best rating of A or better in a
financial category of VII or better and be otherwise satisfactory to the
Beneficiary in form and substance and (ii) not be terminated, cancelled,
surrendered, modified, amended or supplemented without at least 30 days' prior
written notice thereof to the Beneficiary.
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(f) The Beneficiary shall retain and apply any net insurance
proceeds received by it for loss or damage under any insurance policy in effect
pursuant to PARAGRAPH 7(a) or 7(c) at the option of the Beneficiary, to the
prepayment of the Obligations (notwithstanding the fact that the same may not
then be due and payable) or to the reimbursement of the Borrower for the costs
paid by the Borrower in connection with the repair, replacement or restoration
of the Improvements and the Personal Property, except that net insurance
proceeds of less than $25,000 shall be applied by the Beneficiary to repair,
replacement and/or restoration. The Borrower hereby (i) grants, bargains, sells,
conveys, warrants, assigns, transfers, pledges, sets over and confirms unto the
Beneficiary and (ii) grants the Beneficiary a security interest in, such net
insurance proceeds. Such net insurance proceeds shall be (1) collateral security
for the Obligations and (2) subject to disbursement solely by the Beneficiary
pursuant to this Deed of Trust.
(g) If, pursuant to PARAGRAPH 7(f), the Beneficiary shall
elect to apply any net insurance proceeds received by it to the reimbursement of
the Borrower for the costs paid by the Borrower in connection with the repair,
replacement and restoration of the Improvements and the Personal Property, such
net insurance proceeds shall be retained by the Beneficiary and shall be
disbursed by the Beneficiary from time to time as such repair, replacement and
restoration progresses. Each such disbursement shall be made upon request by the
Borrower and upon compliance by the Borrower with any conditions the Beneficiary
shall reasonably require.
8. IMPOSITIONS. The Borrower shall (i) pay, before any fine,
penalty, interest or cost for non-payment attaches thereto, all taxes,
assessments, water and sewer rates and all other governmental charges and/or
levies now or hereafter assessed and/or levied against the Mortgaged Property
(or any portion thereof) or upon the lien or estate of this Deed of Trust
therein (collectively, the "IMPOSITIONS"), as well as all claims for labor,
materials and/or, supplies which, if unpaid, might by law become a lien thereon
and (ii) within 10 days after request therefor by the Beneficiary, exhibit
evidence reasonably satisfactory to the Beneficiary showing payment of the
Impositions. The Borrower shall not be entitled to any credit against interest
or any other amount payable in connection with this Deed of Trust by virtue of
the payment by the Borrower of the Impositions.
9. CONDITION OF THE MORTGAGED PROPERTY. The Borrower shall (a)
not permit the Mortgaged Property (or any portion thereof) to be removed,
demolished or altered, (b) maintain the Mortgaged Property in good repair,
working order and condition, (c), notwithstanding anything to the contrary
contained herein, repair, replace and restore the Improvements and the Personal
Property now or hereafter damaged or destroyed by any casualty or other event
(whether or not insured against and insurable) or affected by any Taking so
that, when repaired, replaced and restored, the same shall be (i) at least equal
in quality, usefulness and value as the Improvements and the Personal Property
which existed immediately prior to such casualty, event or Taking, as the case
may be and (ii) of the same type and character as the type and character of the
Improvements and the Personal Property existing on the date of this Deed of
Trust and (d) perform any and all construction, equipping, alteration, repair,
replacement
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and/or restoration in a good and workmanlike manner, free and clear of all
mortgages, liens, charges, encumbrances and other matters of title (except for,
in the case of the Improvements, the Permitted Encumbrances).
10. COMPLIANCE WITH LEGAL REQUIREMENTS; HAZARDOUS SUBSTANCES.
(a) The Borrower shall comply with (i) all present and future statutes, laws,
ordinances, codes, orders, writs, injunctions, decrees, rules, regulations,
judgments, restrictions, licenses, authorizations, consents, approvals, permits,
grants and franchises of all foreign, federal, state, county and municipal
governments and the authorities, agencies, departments, commissions, boards,
courts and officers thereof (including, without limitation, all Environmental
Laws), (ii) the present and future requirements of the Board of Fire
Underwriters (or any other organization exercising similar functions), (iii) all
requirements of the insurance policies required to be maintained pursuant to
this Deed of Trust and (iv) all present and future covenants, conditions and
restrictions (including, without limitation, the Permitted Encumbrances)
(collectively, the "LEGAL REQUIREMENTS"). The Borrower shall indemnify, defend
and hold harmless the Beneficiary (and the affiliates, employees, agents,
contractors, officers and directors of the Beneficiary) from and against any and
all loss, cost, liability, expense, claim, suit, demand and judgment (including,
without limitation, attorneys' fees and disbursements) (1) in any way related to
any violation of and/or failure to comply with any Legal Requirement (including,
without limitation, CERCLA [as hereinafter defined], RCRA [as hereinafter
defined] and any other Environmental Law), (2) imposed upon the Borrower and/or
the Beneficiary by any Legal Requirement (including, without limitation, CERCLA,
RCRA and any other Environmental Law), (3) in any way related to the use,
discharge, distribution, generation, manufacture, refinement, transportation,
treatment, storage, handling, disposition, transfer, production, processing,
presence, release and/or threatened release on, over, under, from, at, in and/or
about the Mortgaged Property of any Hazardous Substance (whether caused by the
action, inaction and/or omission of the Borrower or of any other Person), (4) in
any way related to any personal injury (including, without limitation, wrongful
death) and/or property damage (real or personal) arising out of and/or in any
way related to such Hazardous Substance, (5) in any way related to any lawsuit
instituted or threatened, settlement reached and/or government order relating to
such Hazardous Substance and/or (6) in any way related to any violation of any
reasonable policies and/or requirements of the Beneficiary which are based upon
or in any way related to such Hazardous Substance. In case any action and/or
proceeding is brought against the Beneficiary in connection with any Legal
Requirement, the Borrower shall, upon notice from the Beneficiary, defend the
same by counsel satisfactory to the Beneficiary. The Borrower shall promptly pay
the cost of such defense. The foregoing indemnity shall survive the repayment in
full of the Obligations. "ENVIRONMENTAL LAWS" means all Legal Requirements in
connection with the environment, the use, discharge, distribution, generation,
manufacture, refinement, transportation, treatment, storage, handling,
disposition, transfer, production, processing, presence, release and/or
threatened release of any industrial, toxic, hazardous, dangerous and/or
environmental waste, contaminant, material, substance, pollutant and/or chemical
(including, without limitation, any Hazardous Substance), including, without
limitation, (A) the Comprehensive Environmental Response, Compensation and
Liability Act (as amended and/or supplemented from time to time,
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"CERCLA"), (B) the Resource Conservation and Recovery Act (as amended and/or
supplemented from time to time, "RCRA"), (C) the Federal Clean Water Act (as
amended and/or supplemented from time to time, the "WATER ACT") and (D) the
Emergency Planning and Community Right to Know Act, as amended and/or
supplemented from time to time. "HAZARDOUS SUBSTANCES" means (aa) the substances
included within the definitions of "hazardous substances", "hazardous
materials", "toxic substances" and/or "solid waste" in (y) CERCLA, RCRA and/or
the Hazardous Materials Transportation Act, as amended and/or supplemented from
time to time and (z) the regulations promulgated pursuant to any or all of the
foregoing, (bb) the substances listed (y) in the United States Department of
Transportation Table (49 C.F.R. ss.ss.172.101 - 172.102), as amended and/or
supplemented from time to time and/or (z) at any time and from time to time by
the Environmental Protection Agency (or any successor thereto) as hazardous
substances (40 C.F.R. ss.ss.302.1 - 302.7), (cc) any waste, contaminant,
material, substance, pollutant and/or chemical which is or becomes regulated or
defined as toxic, hazardous and/or dangerous under any other Legal Requirement
(including, without limitation, any other Environmental Law) and (dd) any waste,
contaminant, material, substance, pollutant and/or chemical which is (s) radon,
(t) petroleum, (u) asbestos, (iv) polychlorinated biphenyls, (w) designated as a
"hazardous substance" pursuant to the Water Act, (x) listed pursuant to ss.307
of the Water Act, (y) flammable and/or explosive and/or (z) radioactive.
(b) The Borrower shall keep or cause the Mortgaged Property to
be kept free of Hazardous Substances. Without limiting the generality of the
foregoing, the Borrower shall not cause or permit (whether by the action,
inaction or omission of the Borrower or of any other Person) the use, discharge,
distribution, generation, manufacture, refinement, transportation, treatment,
storage, handling, disposition, transfer, production, processing, presence,
release or threatened release of any Hazardous Substance on, over, under, from,
at, in and/or about the Mortgaged Property (or any portion thereof). In the
event that this Deed of Trust is foreclosed or the Borrower tenders a deed in
lieu of foreclosure, the Borrower shall deliver the Mortgaged Property free of
any and all Hazardous Substances.
11. LIMITATIONS OF USE. The Borrower shall not initiate, join
in or consent to any change in any private restrictive covenant, zoning
ordinance or other public or private restriction limiting the uses which may be
made of any portion of the Land and/or the Improvements.
12. ESTOPPEL CERTIFICATES. The Borrower shall, within 10 days
after request therefor, deliver to the Beneficiary a certificate, duly executed
and acknowledged by the Borrower, (a) setting forth the amount due on this Deed
of Trust, (b) stating whether any offsets, defenses and/or counterclaims exist
in connection with the Obligations and (c) addressing such other matters in
connection with the other Loan Documents as the Beneficiary may reasonably
request.
13. ACTIONS BY THE BENEFICIARY TO PROTECT THE MORTGAGED
PROPERTY; ETC. If the Borrower shall fail to (a) effect the insurance required
under PARAGRAPH 7, (b) make the payments
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required under PARAGRAPH 8, (c) make any other payment required under the Credit
Agreement, this Deed of Trust or any other Loan Document or (d) comply with any
other term or covenant of any Loan Document, the Beneficiary may effect, pay or
cure the same, as the case may be. All sums, including, without limitation,
attorneys' fees and disbursements, so incurred by the Beneficiary or incurred by
the Beneficiary (i) to sustain the lien or estate of this Deed of Trust or its
priority (including, without limitation, the sums specified in PARAGRAPH 28),
(ii) to protect or enforce any of the Beneficiary's rights under this Credit
Agreement, this Deed of Trust or any Loan Document, or (iii) to recover or
collect the Obligations, shall be a lien on the Mortgaged Property, shall be
deemed secured by this Deed of Trust and shall be paid to the Beneficiary by the
Borrower within 10 days after demand therefor (together with interest thereon at
the Default Rate (as defined in the Credit Agreement), from the date the same
was incurred to the date of the full payment thereof). In any action and/or
proceeding to foreclose this Deed of Trust and/or to recover and/or collect the
Obligations (or any portion thereof), the provisions of law respecting the
recovery of costs, disbursements and/or allowances shall prevail unaffected by
this covenant.
14. ASSIGNMENT OF LEASES.
(a) Pursuant to the assignment made by the Borrower in
PARAGRAPH B of the Granting Clause of this Deed of Trust, Borrower hereby
conveys, transfers and assigns to Beneficiary all Space Leases and the rents,
revenues, issues, income or profits therefrom ("RENTS"). This assignment shall
continue in effect until the satisfaction in full of the Obligations and this
Deed of Trust is canceled or discharged of record; however, so long as no
Default exists, Borrower shall have a license to collect, and may retain, use
and enjoy the Rents as they become due, but not prior to accrual. Such license
granted to Borrower shall be immediately revoked without further notice or
demand upon the occurrence of a Default. The Borrower irrevocably appoints the
Beneficiary its true and lawful attorney-in-fact, at any time and from time to
time following the occurrence and during the continuance of a Default, to
demand, receive and enforce payment, to give receipts, releases and
satisfactions, and to ▇▇▇, in the name of the Borrower or otherwise, for the
Rents and apply the same to the Obligations. The foregoing assignment of Rents
is intended to be an absolute assignment from the Borrower to the beneficiary
and not merely the passing of a security interest. The Rents are assigned
absolutely by the Borrower to the Beneficiary for the benefit of the Beneficiary
subject only to the terms of this Deed of Trust.
(b) The Borrower shall not execute or deliver or permit the
execution or delivery of any Space Lease without the prior consent of the
Beneficiary. The Borrower shall (a) perform and observe or cause to be performed
and observed all covenants and agreements required to be performed or observed
by the lessor under each Space Lease and (b) enforce the performance and
observance of all covenants and agreements required to be performed or observed
by the lessee under each Space Lease. The Borrower shall not (i) assign or
permit the assignment of any Space Lease or the Rents to any Person other than
to the Beneficiary, (ii) accept or permit the acceptance of a prepayment of rent
under any Space Lease in excess of rent for one month, (iii) terminate, cancel
or permit a surrender, termination or cancellation of any
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Space Lease, (iv) permit the assignment of the lessee's interest under any Space
Lease or permit the subletting of the space demised by any Space Lease or (v)
modify, amend or supplement or permit the modification, amendment or supplement
of any Space Lease.
(c) To the extent permitted by law, upon the occurrence of any
Default, the Beneficiary, at any time without notice, either in person, by agent
or by a receiver appointed by a court, and without regard to the adequacy of any
security for the Obligations secured hereby, may enter upon and take possession
of the Mortgaged Property, or any part thereof, in its own name, ▇▇▇ for or
otherwise collect the Rents including those past due and unpaid, and apply the
same, less costs and expenses of operation and collection, (including attorney's
fees and disbursements), to the payment of the Obligations secured hereby, and
in such order as the Beneficiary may determine. The collection of the Rents or
the entering upon and taking possession of the Mortgaged Property or any part
thereof, or the application thereof as aforesaid, shall not cure or waive any
Default or notice thereof or invalidate any act done in response to such Default
or pursuant to notice thereof. The Beneficiary is hereby absolved from all
liability for failure to enforce collection of any Rents, and from all other
responsibility in connection therewith.
(d) Nothing in this Deed of Trust shall be deemed to make the
Beneficiary a "mortgagee-in-possession" or otherwise be construed to create a
delegation to or assumption by the Beneficiary of the duties and obligations of
the Borrower under any agreement or contract relating to the Mortgaged Property
or any portion thereof, and all of the parties to any such contract shall
continue to look to the Borrower for performance of all covenants and other
obligations and the satisfaction of all representations and warranties of the
Borrower thereunder, notwithstanding the assignment of Rents herein made or the
exercise by the Beneficiary, prior to foreclosure, of any of its rights
hereunder or under applicable law.
15. DISPOSITION OF THE MORTGAGED PROPERTY; ETC. (a) The
Borrower shall not (whether voluntarily, involuntarily, by operation of law or
otherwise) sell, convey, transfer or otherwise dispose of or suffer any other
Person to sell, convey, transfer or otherwise dispose of all or any part of the
Mortgaged Property or any interest therein. A sale, conveyance, transfer or
other disposition of the Mortgaged Property shall include, without limitation
(i) any direct or indirect sale, conveyance, transfer or other disposition of
all or any part of the Mortgaged Property or any interest therein, (ii) the
execution of any lease for (a) the Mortgaged Property (or any portion
thereof)(other than the Improvements) and/or (b) space in the Improvements
covering space (in the aggregate) in excess of 2,000 square feet and (iii) any
assignment, encumbrance, pledge, grant of security interest, conditional sale or
title retention agreement in connection with the Personal Property.
(b) No interest (whether legal, beneficial or otherwise) in
the Borrower or in any Person (at any tier) directly or indirectly owning any
interest (whether legal, beneficial or otherwise) in the Borrower shall be
pledged, encumbered, sold, conveyed, transferred or otherwise disposed of
(whether voluntarily, involuntarily, by operation of law or otherwise). The
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Borrower shall not, without the prior consent of the Beneficiary, issue any
additional stock or other equity interest.
(c) Notwithstanding anything to the contrary contained in
PARAGRAPH 15(A), the Borrower shall have the right, at any time and from time to
time, to remove and dispose of any of the Personal Property which is obsolete or
no longer useful in the use, occupancy, maintenance, repair, replacement,
restoration, operation, management and ownership of the Improvements, provided
that the Borrower promptly replaces the same with other Personal Property which
is (i) owned by the Borrower free of all mortgages, liens, charges, encumbrances
and other matters of title and (ii) at least equal in quality, usefulness and
value in connection with the use, occupancy, maintenance, repair, replacement,
restoration, operation, management and ownership of the Improvements as the
Personal Property that was removed and disposed of.
16. INTEREST AFTER A TAKING; AWARDS. The Beneficiary shall
have the right to join the Borrower in adjusting and compromising any and all
awards in connection with any Taking. All such awards shall be paid to the
Beneficiary and shall be applied by the Beneficiary to the payment of the
Obligations (notwithstanding the fact that the same may not then be due and
payable).
17. ADDITIONAL COVENANTS.
(a) The Borrower shall not assign or permit the assignment of
any of the Permits to any Person other than the Beneficiary.
(b) The Borrower shall not terminate, cancel or permit a
surrender, termination or cancellation of any of the Permits or Permitted
Encumbrances benefitting the Mortgaged Property.
(c) The Borrower shall not modify, amend or supplement or
permit the modification, amendment or supplement of any of the Permits or
Permitted Encumbrances benefitting the Mortgaged Property.
(d) The Borrower shall keep the Permits in full force and
effect.
(e) The Borrower shall promptly notify the Beneficiary of the
commencement and/or existence of any action, litigation, proceeding, claim
and/or investigation against any of the Borrower's property (including, without
limitation, the Mortgaged Property) or the Borrower.
(f) The Borrower shall deliver to the Beneficiary (a),
promptly after the Borrower knows or has reason to know that any Default (as
hereinafter defined) has occurred, a notice of such Default, describing the same
in reasonable detail and (b), promptly after the Borrower knows or has reason to
know that any event has occurred or failed to occur which with
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notice and/or the lapse of time could became a Default, a notice of such events,
describing the same in reasonable detail.
18. DEFAULTS. If any one of the following defaults (a
"DEFAULT") shall occur and be continuing:
(a) The occurrence of any default under the Credit
Agreement or any other Loan Document or the breach of any of the terms
or provisions of the Credit Agreement or any Loan Document, which
default or breach continues beyond any period of grace, if any therein
provided;
(b) The breach by the Borrower of any of the terms or
provisions of this Deed of Trust;
thereupon, the Beneficiary may declare the Obligations to be immediately due and
payable from the Borrower, whereupon the same shall become immediately due and
payable without presentment, demand, notice of dishonor, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Borrower.
19. REMEDIES; ETC. (a) If a Default shall have occurred and be
continuing, the Beneficiary may exercise all remedies set forth in the Credit
Agreement and other Loan Documents, and the Beneficiary shall have all other
rights and remedies of a mortgagee of a mortgage or beneficiary of a deed of
trust (the power of sale permitted and provided by applicable statute including
without limitation Texas Property Code, Section 51.002, or any successor
statute, being hereby expressly granted by the Borrower to the Trustee and the
Beneficiary) with respect to any or all of the Mortgaged Property, and to the
extent permitted by law, personally or, to the extent permitted by law, by
agents, with or without entry, the Beneficiary shall have the right and power to
(or on its behalf, instruct the Trustee to):
(i) sell the Mortgaged Property (or any
portion thereof) to the highest bidder at public
auction at a sale or sales held at such place and
time and upon such notice or otherwise in such manner
as may be required by law, or in the absence of any
such requirement, as the Beneficiary may deem
appropriate and from time to time adjourn such sale
by announcement at the time and place specified for
such sale or for such adjourned sale or sales without
further notice, except such as may be required by
law;
(ii) proceed to protect and enforce its
rights under the Credit Agreement or any of the other
Loan Documents by suit for specific performance of
any covenant herein contained or contained in the
Credit Agreement or any of the other Loan Documents,
or in aid of the execution of any power herein
granted or granted in the Credit Agreement or any of
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the other Loan Documents, or for the foreclosure of
this Deed of Trust and the sale of the Mortgaged
Property (or any portion thereof) under the judgment
or decree of a court of competent jurisdiction, or
for the enforcement of any other right as the
Beneficiary shall deem most effectual for such
purpose; and
(iii) enter upon and take immediate
possession of the real property included in the
Mortgaged Property or any part thereof, to exclude
the Borrower therefrom, to hold, use, operate, manage
and control the real property included in the
Mortgaged Property, to make all such repairs,
replacements, alterations, additions and improvements
to the Mortgaged Property or any part thereof as the
Beneficiary may deem proper, and to demand, collect
and retain the Rents as provided in paragraph 14
hereof.
(b) In any action to foreclose this Deed of Trust, the Beneficiary, to
the extent permitted by law, shall be entitled as a matter of right to the
appointment of a receiver of the Mortgaged Property and/or of the rents,
revenues, issues, income and/or profits thereof, without notice or demand, and
without regard to the adequacy of the security for the Obligations or the
solvency of the Borrower.
(c) The Borrower, in the event of any Default, shall pay monthly in
advance to the Beneficiary or to any receiver appointed at the request of the
Beneficiary to collect the rents, revenues, issues, income and/or profits of the
Mortgaged Property, the fair and reasonable rental value for the use and
occupancy of the Mortgaged Property or of such portion thereof as may be in the
possession of the Borrower. Upon default in the payment thereof, the Borrower
shall vacate and surrender possession of the Mortgaged Property or such portion
to the Beneficiary or to such receiver, and upon a failure so to do may be
evicted by summary proceedings.
(d) In any sale under any provision of this Deed of Trust or pursuant
to any judgment or decree of court, the Mortgaged Property, to the extent
permitted by law, may be sold in one or more parcels, or as an entirety, and in
such order as the Beneficiary may elect, without regard to the right of the
Borrower or any Person claiming under the Borrower to the marshaling of assets.
The purchaser at such sale shall take title to the property so sold free and
discharged of the estate of the Borrower therein, the purchaser being hereby
discharged from all liability to see to the application of the purchase money.
Any Person, including, without limitation, the Beneficiary, may purchase at any
such sale.
(e) The Borrower shall indemnify, defend and hold harmless the
Beneficiary (and the affiliates, employees, agents, contractors, officers and
directors of the Beneficiary) from and against any and all loss, cost,
liability, expense, claim, suit,
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demand and judgment (including, without limitation, attorneys' fees and
disbursements) in any way related to any action, litigation, proceeding, claim,
investigation, demand, defense or assertion based on, grounded upon or resulting
from any alleged or actual breach of any representation, warranty or
certification made by the Borrower in any of the other Loan Documents, and in
case any action and/or proceeding is brought against the Beneficiary in
connection with any such breach, the Borrower shall, upon notice from the
Beneficiary, defend the same by counsel satisfactory to the Beneficiary. The
Borrower shall promptly pay the cost of such defense.
20. APPLICATION OF PROCEEDS. The proceeds of any sale made
either under the power of sale hereby given or under a judgment, order or decree
made in any action to foreclose or to enforce this Deed of Trust shall be
applied:
(a) first to the payment of (i) all costs and expenses of such
sale, including, without limitation, attorneys' fees and disbursements
in the court of original jurisdiction and in any appellate proceedings
and (ii) all charges, expenses and advances incurred or paid by the
Beneficiary in order to protect the lien or estate of this Deed of
Trust or the security afforded thereby;
(b) then to the payment of the Obligations (in such order and
priority as the Beneficiary shall determine); and
(c) any surplus remaining to be paid to the Borrower or to
whosoever may be lawfully entitled to receive the same.
21. NO JOINT VENTURE OR PARTNERSHIP. The relationship between
the Borrower and the Beneficiary created hereby is strictly of debtor/creditor
and nothing contained herein or in any other Loan Document shall be deemed or
construed to create a joint venture or partnership between the Borrower and the
Beneficiary.
22. WAIVERS BY THE BORROWER. The Borrower hereby waives, to
the fullest extent permitted by law, (a) any and all rights and equities of
redemption from sale under the power of sale created under this Deed of Trust
and from sale under any judgment, order or decree of foreclosure of this Deed of
Trust and all notice or notices of seizure and (b) the benefit of any and all
exemption, valuation, appraisement, marshalling, stay and extension rights now
or hereafter in force.
23. NO WAIVER. No failure to exercise, and no delay in
exercising, and no course of dealing with respect to, any power, remedy or right
under this Deed of Trust, the Credit Agreement or any of the other Loan
Documents by the Beneficiary shall operate as a waiver thereof, nor shall any
single or partial exercise by the Beneficiary of any power, remedy or right
under this Deed of Trust, the Credit Agreement or any of the other Loan
Documents preclude any other or further exercise thereof or the exercise of any
other power, remedy or right. Each of the
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remedies provided herein are cumulative and not exclusive of any remedies
provided by (a) law or (b) the Credit Agreement or (c) any of the other Loan
Documents.
24. POWERS OF THE BENEFICIARY. The Beneficiary shall have the
right, at any time and from time to time, to renew or to extend this Deed of
Trust, or to alter or modify the same in any way, or to waive any of the terms,
covenants or conditions hereof in whole or in part and shall have the right to
release any portion of the Mortgaged Property or any other security, and to
grant such extensions or indulgences in relation to the Obligations as the
Beneficiary may determine without the consent of any junior lienor and without
any obligation to give notice of any kind thereto and without in any manner
affecting the priority or the lien hereof on any portion of the Mortgaged
Property.
25. SUCCESSOR TRUSTEE; TRUSTEE'S POWERS; RECONVEYANCE BY
TRUSTEE.
(a) The Trustee may resign in writing addressed to the
Beneficiary or be removed at any time with or without cause by an instrument in
writing duly executed by the Beneficiary. In case of the death, resignation or
removal of the Trustee, a successor to the Trustee may be appointed by the
Beneficiary without formality other than an appointment and designation in
writing unless otherwise required by applicable law. Such appointment and
designation will be full evidence of the right and authority to make the same
and of all facts therein recited, and upon the making of any such appointment
and designation, this Deed of Trust will vest in the named successor trustee all
the right, title and interest of the Trustee in all of the Mortgaged Property,
and said successor will thereupon succeed to all the rights, powers, privileges,
immunities and duties hereby conferred upon the Trustee.
(b) At any time, or from time to time without liability
therefor and without notice, upon written request of the Beneficiary and
presentation of this Deed of Trust, and without affecting the personal liability
of any person for payment of the indebtedness secured hereby or the effect of
this Deed of Trust upon the remainder of the Mortgaged Property, the Trustee may
(a) reconvey any part of the Mortgaged Property, (b) consent in writing to the
making of any map or plat thereof, (c) join in granting any easement thereon, or
(d) join in any extension agreement or any agreement subordinating the lien or
charge hereof.
(c) Upon written request of the Beneficiary stating that all
sums secured hereby have been paid, and upon surrender of this Deed of Trust to
the Trustee for cancellation and retention and upon payment by the Borrower of
the Trustee's fees, the Trustee shall reconvey to the Borrower, or to the person
or persons legally entitled thereto, without warranty, any portion of the Real
Property Collateral then held hereunder. The recitals in such reconveyance of
any matters or facts shall be conclusive proof of the truthfulness thereof. The
grantee in any reconveyance may be described as "the person or persons legally
entitled thereto."
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26. NOTICES. All notices, demands, consents, statements,
requests, approvals and other communications hereunder (collectively, "NOTICES")
shall be in writing. All notices shall be given in the manner provided in the
Credit Agreement.
27. AMENDMENTS; ETC. This Deed of Trust cannot be terminated,
cancelled, modified, amended, supplemented, waived or discharged except by an
instrument in writing, duly acknowledged in form for recording, signed by the
party against whom enforcement of such modification, charge or discharge is
sought.
28. SECURITY AGREEMENT; FIXTURE FILING. This Deed of Trust
shall be a security agreement and "fixture filing" under Article 9 of the
Uniform Commercial Code as adopted by the State of Texas, as amended and/or
supplemented from time to time. The Borrower irrevocably authorizes the
Beneficiary to execute, in the Borrower's name, and to file any financing
statement or continuation statement which the Deed of Trust deems necessary or
advisable to preserve or maintain the priority of the lien hereof or to extend
the effectiveness thereof, and the Borrower shall pay to the Beneficiary,
pursuant to PARAGRAPH 13, any costs from time to time incurred by the
Beneficiary for filing any such statement under such Code or under any other
laws. After an event of Default occurs, Beneficiary may require Borrower to
assemble the Personal Property Collateral and make it available to Beneficiary
at a reasonably convenient place Beneficiary designates. Borrower authorizes
each obligor on any Personal Property Collateral to make payment and performance
to Beneficiary upon Beneficiary's demand, and payment or performance to
Beneficiary will discharge the obligor's duty as if it had been rendered to
Borrower, even if Borrower notifies the obligor that payment or performance
should not be made to Beneficiary. Except for the safe custody of any Personal
Property Collateral in its possession and accounting for money actually received
by it, Beneficiary has no duty as to any Personal Property Collateral, including
the duty to preserve rights against prior parties. Written notice to Borrower
mailed 10 days prior to public or private sale is reasonable notice.
29. SUCCESSORS AND ASSIGNS. The provisions of this Deed of
Trust (including, without limitation, the indemnities set forth in PARAGRAPH 10)
shall run with the Land and shall bind the Borrower, its successors and assigns,
and all subsequent encumbrances, tenants and subtenants of the Mortgaged
Property (or any portion thereof), and shall inure to the benefit of the
Beneficiary, its successors and assigns, and (notwithstanding anything to the
contrary contained in any of the other Loan Documents) such indemnities shall
survive the foreclosure of this Deed of Trust and repayment in full of the
Obligations.
30. SEVERABILITY/CAPTIONS. If any provision of this Deed of
Trust or the application thereof to any Person or circumstance shall, to any
extent, be illegal, invalid and/or unenforceable, the remainder of this Deed of
Trust or the application of such provision to Persons or circumstances other
than those as to which it is illegal, invalid and/or unenforceable, as the case
may be, shall not be affected, and each provision of this Deed of Trust shall be
legal, valid and enforceable to the extent permitted by law. The illegality,
invalidity and/or unenforceability of any provision of this Deed of Trust in any
jurisdiction shall not affect the
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legality, validity and/or enforceability thereof in any other jurisdiction. The
captions or headings at the beginning of each paragraph hereof are for the
convenience of the parties and are not part of this Deed of Trust.
31. INVALIDITY OF CERTAIN PROVISIONS. If the lien or estate of
this Deed of Trust is invalid or unenforceable as to any part of the
Obligations, the unsecured or partially secured portion of such indebtedness
shall be paid completely prior to the payment of the remaining and secured or
partially secured portion thereof, and all payments made on such indebtedness,
whether voluntary or under foreclosure or other enforcement action or procedure,
shall be considered to have been paid on and applied first to the full payment
of that portion thereof that is not secured or fully secured by the lien or
estate of this Deed of Trust.
32. MERGER / CONFLICTS. This Deed of Trust, the Credit
Agreement and the other Loan Documents constitute the entire understanding
between the Borrower and the Beneficiary with respect to the transactions
contemplated by this Deed of Trust, and any and all other agreements,
understandings and statements (oral or written) between the Borrower and the
Beneficiary in connection therewith are merged into this Deed of Trust and the
other Loan Documents. In case of any conflict or inconsistency between any
provision of this Deed of Trust, the Credit Agreement or any other Loan
Document, the provision which is more protective or more favorable to the
Beneficiary shall control.
33. FAIR MARKET VALUE FOR CALCULATING DEFICIENCIES. If
Beneficiary sues Borrower, any other party obligated on the Debt or any
guarantor of any Debt to collect any deficiency owing after foreclosure of the
Mortgaged Property, "fair market value" of the Mortgaged Property under Sections
51.003, 51.004 and 51.005 of the Texas Property Code (as amended from time to
time) (the "Deficiency Statutes") will be determined as follows:
(a) Any valuation of the Mortgaged Property will be based on
"as is" condition on the foreclosure date, without any assumption or expectation
that the Mortgaged Property will be repaired or improved in any manner before a
resale of the Mortgaged Property after foreclosure.
(b) Any valuation will assume that the foreclosure purchaser
desires resale of the Mortgaged Property for cash promptly (but no later than
twelve months) following the foreclosure sale.
(c) All reasonable closing costs customarily borne by the
seller in a commercial real estate transaction, including brokerage commissions,
title insurance, a survey of the Mortgaged Property, tax prorations, attorney's
fees, and marketing costs, will be deducted from the gross fair market value of
the Mortgaged Property.
(d) Any valuation will further discount the gross fair market
value of the Mortgaged Property to account for any estimated holding costs
associated with maintaining the
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Mortgaged Property pending sale, including utilities expenses, property
management fees, taxes and assessments, and other maintenance expenses.
(e) Any expert opinion testimony given or considered in
connection with a determination of the fair market value of the Mortgaged
Property must be given by persons who have at least five years experience in
appraising property similar to the Mortgaged Property and who have conducted and
prepared a complete written appraisal of the Mortgaged Property taking into
consideration the factors set forth above.
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IN WITNESS WHEREOF, the Borrower has duly executed and delivered this
Deed of Trust as of the day and year first above written.
TELXON CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
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ACKNOWLEDGMENT
State of Ohio
County of Summit
This instrument was acknowledged before me on the 26 day of March, 1999 by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ , SENIOR VICE PRESIDENT of Telxon Corporation, a DELAWARE
corporation on behalf of said corporation.
/S/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Notary Public, State of OHIO
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Attorney
NOTARY PUBLIC - STATE OF OHIO
My Commission Has No Expiration Date
Name and Mailing Address Name and Mailing Address
of Trustee: of Beneficiary:
First American Title Insurance Company The Bank of New York
1500 Dairy Ashford ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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