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State ________ Site No. ________
EXHIBIT G-2
FORM OF DEED OF TRUST
DEED OF TRUST, LEASEHOLD DEED OF TRUST,
SECURITY AGREEMENT AND ASSIGNMENT
OF LEASES AND RENTS
Trustor: PAYLESS CASHWAYS, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Beneficiary: CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY,
as Administrative Agent and
Collateral Agent,
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Trustee:
Deed of Trust
Amount:
Date: October 3, 1996
Premises:
Record and ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
Return to: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
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DEED OF TRUST, LEASEHOLD DEED OF TRUST, SECURITY AGREEMENT AND
ASSIGNMENT OF LEASES AND RENTS, dated as of the 3rd day of October, 1996, by
and among PAYLESS CASHWAYS, INC., an Iowa corporation, having an office at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Trustor"), _________________
("Trustee") and CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY, as
Administrative Agent and Collateral Agent under the Agreement (as
hereinafter defined), having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Beneficiary").
DEFINITIONS
Trustor and Beneficiary agree that all capitalized terms used but
not defined herein are defined in or by reference to the Agreement and shall
have the same meanings herein as therein. Trustor and Beneficiary further
agree that, unless the context otherwise specifies or requires, the
following terms shall have the meanings herein specified, such definitions
to be applicable equally to the singular and the plural forms of such terms.
"Agreement" means that certain Amended and Restated Credit
Agreement dated on or about the date hereof by and among Payless Cashways,
Inc., the signatory Lenders thereto, Canadian Imperial Bank of Commerce, as
Letter of Credit Bank, Canadian Imperial Bank of Commerce, New York Agency,
as Administrative Agent and Collateral Agent, and The Bank of Nova Scotia,
Nationsbank of Texas, N.A., and Bank of America National Trust and Savings
Association as Co-Agents, together with any future amendments, amendments
and restatements, extensions, modifications or supplements thereto or
thereof.
"Deed of Trust" means this Deed of Trust, Leasehold Deed of Trust,
Security Agreement and Assignment of Leases and Rents together with any
future amendments, modifications or supplements hereto or hereof.
"Deed of Trust Amount" means the principal sum of $500,000,000.
"Default" means Default, as that term is defined in the Agreement.
"Default Rate" means the rate of interest specified in Subsection
2.5(a) of the Agreement.
"Event of Default" means the events and circumstances described as
such in Article II hereof.
"Fixtures" means all of Trustor's right, title and in-
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terest in all furniture, furnishings, partitions, screens, awnings, venetian
blinds, window shades, draperies, carpeting, pipes, ducts, conduits,
dynamos, motors, engines, compressors, generators, boilers, stokers,
furnaces, pumps, tanks, elevators, escalators, vacuum cleaning systems, call
systems, switchboards, sprinkler systems, fire prevention and extinguishing
apparatus, refrigerating, air conditioning, heating, dishwashing, plumbing,
ventilating, gas, steam, electrical and lighting fittings and fixtures,
licenses or permits of any kind and all building materials, equipment and
goods now or hereafter delivered to the Premises (hereinafter defined) and
intended to be installed therein, and all other machinery, fixtures, tools,
implements, apparatus, appliances, equipment, goods, facilities and other
personal property of similar character in which Trustor now has, or at any
time hereafter acquires, an interest and which are now or hereafter affixed
or attached to, or used in connection with the enjoyment, occupancy and/or
operation of, all or any portion of the Premises, together with all
renewals, replacements and substitutions thereof and additions and
accessions thereto and the proceeds of all of the foregoing items.
"Improvements" means all buildings, structures and other
improvements presently existing or hereafter constructed on the land
described in Exhibit A attached hereto.
"Lease" has the meaning ascribed to such term in Section 3.01
hereof.
"Leasehold" has the meaning ascribed to such term in paragraph "F"
of the Granting Clause, below.
"Leasehold Interest" has the meaning ascribed to such term in
paragraph "F" of the Granting Clause, below.
"Lessee" has the meaning ascribed to such term in Section 3.01
hereof.
"Loan Documents" means the Credit Documents, as that term is
defined in the Agreement.
"Loans" means the Loans, as that term is defined in the Agreement.
"Mortgaged Property" has the meaning ascribed to such term in the
Granting Clause, below.
"Notes" means the Notes, as that term is defined in the Agreement.
"Premises" means the land described in Exhibit A annexed hereto,
together with the Improvements thereon or to be constructed thereon or
therein, and all of the easements, rights,
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privileges and appurtenances thereunto belonging or in anywise appertaining
thereto including, but not limited to, all of the estate, right, title,
interest, claim or demand whatsoever of Trustor therein and in and to the
strips and gores, streets and ways adjacent thereto, whether in law or in
equity, in possession or expectancy, now or hereafter acquired and also any
other realty, Leaseholds (hereinafter defined), or Fixtures encompassed by
the term "Mortgaged Property", elsewhere herein defined.
"Rents" has the meaning ascribed to such term in Section 3.01
hereof.
"Secured Obligations" has the meaning ascribed to such term in the
paragraph entitled "Secured Obligations" below.
"Secured Parties" means Secured Parties, as that term is defined in
the Agreement.
W I T N E S S E T H :
WHEREAS, Trustor is the actual, record and beneficial owner of the
Premises or owns an actual beneficial interest therein;
WHEREAS, Trustor has agreed pursuant to the terms of the Agreement,
the Notes, and/or the other Loan Documents evidencing the Secured
Obligations to be liable for the Secured Obligations; and
WHEREAS, the parties intend that the Secured Obligations shall be
secured by this Deed of Trust.
GRANTING CLAUSE
NOW, THEREFORE, Trustor, in consideration of the premises, and in
order to secure the payment in full of the Deed of Trust Amount, the Secured
Obligations, all interest due thereon and all other costs and expenses and
other amounts due hereunder and in respect of the Secured Obligations, and
the performance and discharge of all the provisions hereof, of the Secured
Obligations and all other Loan Documents, hereby gives, grants, bargains,
sells, conveys, pledges and grants a security interest to Trustee in trust,
with power of sale for the benefit of Beneficiary, all of Trustor's estate,
right, title and interest in, to and under any and all of the following
described property whether now owned or hereafter acquired (all such
properties being collectively referred to as the "Mortgaged Property"):
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A. All Trustor's right, title and interest in and to the Premises
and all right, title and interest of Trustor in and to the Improvements on
the Premises or to be constructed thereon and all Fixtures now or hereafter
situated in, on or about, or affixed or attached to the Improvements or the
Premises or any building, structure or other improvement now or hereafter
standing, constructed or placed upon or within the Premises, and all and
singular the tenements, hereditaments, easements, rights-of-way or use,
rights, privileges and appurtenances to the Premises, now or hereafter
belonging or in anywise appertaining thereto, including, without limitation,
any such right, title, interest, claim and demand in, to and under any
agreement granting, conveying or creating, for the benefit of the Premises,
any easement, right or license in any way affecting other property and in,
to and under any streets, ways, alleys, vaults, gores or strips of land
adjoining the Premises, or any parcel thereof, and all claims or demands
either in law or in equity, in possession or expectancy, of, in and to the
Premises.
B. All right, title and interest of Trustor in and to all awards
heretofore made or hereafter to be made for the taking by eminent domain of
the whole or any part of the above described premises, or any estate or
easement therein, including any awards for change of grade of streets, all
of which awards are hereby assigned to Trustee and Beneficiary, which
Trustee and Beneficiary are hereby authorized to collect (unless provided
otherwise in the Agreement) and receive the proceeds of such awards and to
give proper receipts and acquittances therefor and Trustee and Beneficiary
shall have the right and option to apply such excess towards the payment of
any sum owing on account of this Deed of Trust and the Secured Obligations
secured thereby, notwithstanding the fact that such sum may not then be due
and payable.
C. The Fixtures and the products and proceeds thereof.
D. All present and future leases, subleases and licenses and any
guarantees thereof, rents, issues and profits and additional rents now or at
any time hereafter covering or affecting all or any portion of the Mortgaged
Property and all proceeds of, and all privileges and appurtenances belonging
or in any way appertaining to, the Mortgaged Property, or any part thereof,
and all other property subjected or required to be subjected to the lien
and/or security interest of or conveyed pursuant to the terms of this Deed
of Trust, including, without limitation, all of the income, revenues,
earnings, rents, maintenance payments, tolls, issues, awards (including,
without limitation, condemnation awards and insurance proceeds), products
and profits thereof, which income, revenues, earnings, rents, maintenance
payments, tolls, issues, awards, products and profits are hereby expressly
assigned with the right to take and collect the same upon the terms
hereinafter set forth;
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and all the estate, right, title, interest and claim whatsoever, at law and
in equity, which Trustor now has or may hereafter acquire in and to the
aforementioned property and every part thereof; provided, that so long as no
Event of Default (as hereinafter defined) shall have occurred and be
continuing, all such income, revenues, earnings, rents, maintenance
payments, tolls, issues, awards, products and profits shall remain with and
under the control of Trustor except as otherwise expressly provided herein
or in any other written agreement between Trustor and Beneficiary.
E. All right, title and interest of Trustor in and to all
agreements, or contracts, now or hereafter entered into for the sale,
leasing, brokerage, development, construction, renovation, management,
maintenance and/or operation of the Premises (or any part thereof),
including all moneys due and to become due thereunder, and all permits,
licenses, bonds, insurance policies, plans and specifications relative to
the construction and/or operation of the Improvements upon the Mortgaged
Property.
F. All right, title and interest (including, without limitation,
all present and future rights to possession and use, and all present and
future options and other rights to renew and to purchase) of Trustor, as
lessee or sublessee, under any leases, subleases, licenses, occupancy
agreements or concessions now in effect or to be entered into hereafter
(collectively, the "Leasehold Instruments") whereby Trustor has any right to
the use, possession or occupancy of the Premises or any part thereof
(collectively, the "Leaseholds").
G. All of Trustor's claims and rights to the payment of damages
arising from any rejection of a Leasehold or a Lease under or pursuant to
the Bankruptcy Code, 11 U.S.C. ss.101 et seq. (the "Bankruptcy Code").
H. All of Trustor's rights and remedies at any time arising under
or pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C.
ss.365(h), including, without limitation, all of Trustor's rights to remain
in possession of the Premises.
I. Any other property and rights which are, by the provisions of
the Agreement or any other Loan Document, required to be subject to the lien
hereof or conveyed pursuant to the terms hereof, and any additional property
and rights that may from time to time hereafter by installation in or on the
Mortgaged Property, or by writing of any kind, or otherwise, be subjected to
the lien hereof by Trustor or by anyone on its behalf.
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J. All proceeds of the conversion, voluntary or involuntary, of any
of the foregoing into cash or liquidated claims, including, without
limitation, proceeds of insurance and condemnation awards, and all right,
title and interest of Trustor in and to all unearned premiums accrued,
accruing and to accrue under any or all insurance policies obtained by
Trustor.
TO HAVE AND TO HOLD the Mortgaged Property, unto Trustee for the
benefit of Beneficiary and its successors and assigns, upon the terms,
provisions and conditions herein set forth, forever, and Trustor does hereby
bind itself and its successors, legal representatives, and assigns to
warrant and forever defend all and singular the Mortgaged Property unto
Beneficiary and Trustee and their successors and assigns, against every
person whomsoever lawfully claiming or to claim the same or any part
thereof.
IN TRUST, to secure the payment and performance of the Secured
Obligations, whereupon this Deed of Trust shall cease and be void and the
Mortgaged Property shall be released at the cost of Trustor.
SECURED OBLIGATIONS
This Deed of Trust, and all rights, titles, interests, liens,
security interests, powers, privileges and remedies created hereby or
arising hereunder or by virtue hereof, are given to secure the payment and
performance of the all indebtednesses, obligations and liabilities arising
under the Notes, the Agreement, this Deed of Trust and any other Loan
Document, and any renewals, extensions, amendments, amendments and
restatements, supplements or modifications thereof or thereto, howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing or due or to become due, and any and
all fees, costs or expenses incurred by Beneficiary or Trustee, including,
but not limited to, interest accruing at the then applicable rate provided
in the Agreement after the maturity of the Loans and interest accruing at
the then applicable rate provided in the Agreement or other applicable
agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the Trustor on the Loans and on all other obligations of the Trustor to
the Secured Parties, taxes, recording expenses and attorneys' fees in
connection with the execution and delivery of any of the aforesaid and the
consummation of the transactions contemplated thereby, the administration
thereof, and, after default, the administration and collection thereof, all
costs incurred of whatever nature by Beneficiary and Trustee in the exercise
of any rights hereunder or under any Loan Document and all other amounts
payable by Trustor under this Deed of Trust (all of the
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foregoing indebtedness, obligations and liabilities being referred to herein
as the "Secured Obligations").
ARTICLE I
PARTICULAR WARRANTIES, REPRESENTATIONS
AND COVENANTS OF TRUSTOR
Section 1.01 Warranties and Representations. Trustor hereby
warrants and represents as follows:
(a) Trustor is the actual, record and beneficial owner of
the Premises and holder of a good and marketable title to an indefeasible
leasehold estate in the Leaseholds or owns an actual beneficial interest
therein and Fee estate in the rest of the Mortgaged Property, subject only
to such exceptions to title as are listed in the title policy insuring the
lien of this Deed of Trust and approved by Beneficiary as permitted
exceptions. Trustor is the owner of all of the remaining Mortgaged Property;
Trustor will own the Fixtures free and clear of liens and claims except
those in favor of Beneficiary; and this Deed of Trust is and will remain a
valid and enforceable first lien on the Mortgaged Property subject only to
the permitted exceptions referred to above.
(b) Trustor has full power and lawful authority to convey,
pledge and encumber the Mortgaged Property in the manner and form herein
done or intended hereafter to be done. Trustor will preserve such title, and
will forever warrant and defend the validity and priority of the lien
hereof, against the claims of all persons and parties whomsoever.
(c) Except as otherwise specified in the Title Policy (as
defined in the Agreement) or in the Survey (as defined in the Agreement),
the Premises is not located in an area identified by the Secretary of
Housing and Urban Development as an area having special flood hazards or if
it so located, flood insurance acceptable to Beneficiary has been obtained.
Section 1.02 Further Assurances. Trustor will, at its sole expense,
do, execute, acknowledge and deliver every further act, deed, conveyance,
mortgage, assignment, notice of assignment, transfer or assurance as
Beneficiary shall from time to time reasonably require, for the better
assuring, conveying, assigning, transferring and confirming unto Beneficiary
the property and rights hereby conveyed, mortgaged or assigned or intended
now or hereafter so to be, or which Trustor may be or may hereafter become
bound to convey, mortgage or assign to Trustee or Beneficiary or for
carrying out the intention or facilitating the performance of the terms of
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this Deed of Trust, and for filing, registering or recording this Deed of
Trust and, on demand, will execute and deliver, and hereby authorizes
Beneficiary or Trustee to execute in the name of Trustor to the extent it
may lawfully do so, one or more financing statements, chattel mortgages or
comparable security instruments, and renewals thereof, to evidence more
effectively the lien hereof upon the Fixtures.
Section 1.03 Filings, Recordings and Payments. (a) Trustor
forthwith upon the execution of this Deed of Trust, and thereafter from time
to time, will, at its expense, cause this Deed of Trust and any security
instrument creating a lien or evidencing the lien hereof upon the Fixtures
and each instrument of further assurance to be filed, registered or recorded
in such manner and in such places as may be required by any present or
future law in order to publish notice of and fully to protect the lien
hereof upon, and the interest of Trustee and Beneficiary in, the Mortgaged
Property.
(b) Trustor will pay all taxes, filing, registration and
recording fees, and all expenses incident to the execution and
acknowledgment of this Deed of Trust, any supplemental deed of trust, any
other Loan Document, and any security instrument with respect to the
Fixtures, and any instrument of further assurance, and all federal, state,
county and municipal stamp taxes and other taxes, duties, imposts,
assessments and charges arising out of or in connection with the execution
and delivery of the Agreement, this Deed of Trust, any supplemental deed of
trust, any other Loan Document, any security instrument with respect to the
Fixtures or any instrument or further assurance, other than income,
franchise or other similar taxes imposed on Beneficiary in respect of income
derived by Beneficiary under the Secured Obligations.
Section 1.04 Payment of Sums Due. Trustor will punctually pay the
principal and interest and all other sums to become due in respect of the
Agreement and any other Loan Document at the time and place and in the
manner specified in the Agreement and any other Loan Document, according to
the true intent and meaning thereof and without offset, counterclaim,
defense or cause of action of any kind whatsoever, and without deduction or
credit for any amount payable for taxes, all in immediately available funds
in Dollars.
Section 1.05 After Acquired Property. All right, title and interest
of Trustor in and to all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and appurtenances to, the
Mortgaged Property, hereafter acquired by or released to Trustor or
constructed, assembled or placed by Trustor on the Premises, and all
conversions of the security constituted thereby, immediately upon such
acquisition, release, construction, assembling, placement or conversion, as
the case may be, and in each such case,
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without any further mortgage, conveyance, assignment or other act by
Trustor, shall become subject to the lien of this Deed of Trust as fully and
completely, and with the same effect, as though now owned by Trustor and
specifically described in the granting clauses hereof, but at any and all
times Trustor will execute and deliver to Beneficiary any and all such
further assurances, mortgages, deeds of trust, conveyances or assignments
thereof as Beneficiary may reasonably require for the purpose of expressing
and specifically subjecting the same to the lien of this Deed of Trust.
Section 1.06 Taxes, Fees and Other Charges. (a) Trustor, from time
to time when the same shall become due, and prior to the date of imposition
of interest or penalty (except as otherwise permitted in the Agreement),
will pay and discharge, or cause to be paid and discharged, all taxes of
every kind and nature (including real and personal property taxes and
income, franchise, withholding, transfer or recordation taxes, profits and
gross receipt taxes), all general and special assessments, levies, permits,
inspection and license fees, all water and sewer rents and charges, and all
other public charges, whether of a like or different nature, imposed upon or
assessed against it or the Mortgaged Property or any part thereof or upon
the revenues, rents, issues, income and profits of the Premises or arising
in respect of the occupancy, use or possession thereof. Trustor will, at any
time upon request by Beneficiary, promptly deliver to Beneficiary receipts
evidencing the payment of same.
Upon the occurrence of an Event of Default under the Agreement,
Beneficiary may, at any time and from time to time, at its option, to be
exercised by written notice to Trustor, require the deposit by Trustor at
the time of each payment of an installment of interest or principal under
the Agreement of an additional amount sufficient to discharge the
obligations under this subsection (a) when they become due. The
determination of the amount so payable and of the fractional part thereof to
be deposited with Beneficiary, so that the aggregate of such deposit shall
be sufficient for this purpose, shall be made by Beneficiary in its sole
discretion. Such amounts shall be held by Beneficiary without interest in an
account acceptable to Beneficiary and applied to the payment of the
obligations in respect to which such amounts were deposited or, at the
option of Beneficiary and subject to applicable law, to the payment of the
Secured Obligations in such order or priority as Beneficiary shall determine
consistent with the Agreement, on or before the respective dates on which
the same or any of them would become delinquent. If one month prior to the
due date of any of the obligations under this subsection (a) the amounts
then on deposit therefor shall be insufficient for the payment of such
obligations in full, Trustor within ten (10) days after demand shall deposit
the amount of the
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deficiency with Beneficiary. Nothing herein contained shall be deemed to
affect any right or remedy of Beneficiary under the provisions of this Deed
of Trust or of any statute or rule of law to pay any such amount and to add
the amount so paid together with interest at the Default Rate to the
indebtedness hereby secured.
(b) Except as otherwise permitted in the Agreement,
Trustor will pay, from time to time when the same shall become due, all
lawful claims and demands of mechanics, materialmen, laborers, and others
which, if unpaid, might result in, or permit the creation of, a lien on the
Mortgaged Property or any part thereof, or on the revenues, rents, issues,
income and profits arising therefrom and in general will do or cause to be
done everything necessary so that the lien hereof shall be fully preserved,
at the cost of Trustor, without expense to Beneficiary.
Section 1.07 Intentionally Deleted.
Section 1.08 Insurance. (a) Trustor agrees to at all times provide,
maintain and keep in force the policies of insurance required to the
maintained pursuant to the terms of the Agreement.
(b) In the event Trustor fails to provide, maintain, keep
in force or deliver and furnish to Beneficiary the policies of insurance
required by the Agreement or this Deed of Trust, Beneficiary may procure
such insurance or single-interest insurance for such risks covering
Beneficiary's interest, and Trustor will pay all premiums thereon promptly
upon demand by Beneficiary, and until such payment is made by Trustor the
amount of all such premiums, together with interest thereon at the Default
Rate shall be secured by this Deed of Trust.
(c) After the happening of any casualty to the Mortgaged
Property or any part thereof, Trustor shall give prompt written notice
thereof to Beneficiary, and Beneficiary may make proof of loss if not made
promptly by Trustor. In the event of such loss or damage, all proceeds of
insurance shall be payable in the manner provided for in the Agreement.
Unless otherwise provided in the Agreement, nothing herein contained shall
be deemed to excuse Trustor from repairing or maintaining the Premises as
provided in Section 1.12 hereof or restoring all damage or destruction to
the Mortgaged Property, regardless of whether or not there are insurance
proceeds available or whether any such proceeds are sufficient in amount,
and the application or release by Beneficiary of any insurance proceeds
shall not cure or waive any default or notice of default under this Deed of
Trust or invalidate any act done pursuant to such notice. Any monies
received as payment for loss under any insurance shall be applied pursuant
to the terms of the
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Agreement.
(d) In the event of foreclosure of this Deed of Trust or
other transfer of title or assignment of the Premises in extinguishment, in
whole or in part, of the debt secured hereby, all right, title and interest
of Trustor in and to all policies of insurance required by this Section 1.08
shall inure to the benefit of and pass to the successor in interest to
Trustor or the purchaser or grantee of the Premises.
(e) Beneficiary may at any time following the occurrence
of an Event of Default under the Agreement, at its option, to be exercised
by written notice to Trustor, require the deposit by Trustor, at the time of
each payment of an installment of interest or principal under the Agreement,
of an additional amount sufficient to discharge the obligations under this
Section 1.08 when they become due. The determination of the amount so
payable and of the fractional part thereof to be deposited with Beneficiary
with each installment, so that the aggregate of such deposit shall be
sufficient for this purpose, shall be made by Beneficiary in its sole
discretion. Such amounts shall be held by Beneficiary without interest in an
account acceptable to Beneficiary and applied to the payment of the
obligations in respect of which such amounts were deposited on or before the
respective dates on which the same or any of them would become delinquent
or, at the option of Beneficiary, to the payment of the Secured Obligations
in such order or priority as Beneficiary shall determine consistent with the
Agreement. If one month prior to the due date of any of the aforementioned
obligations the amounts then on deposit therefor shall be insufficient for
the payment of such obligations in full, Trustor within five (5) days after
demand shall deposit the amount of the deficiency with Beneficiary. Nothing
herein contained shall be deemed to affect any right or remedy of
Beneficiary under the provisions of this Deed of Trust or of any statute or
rule of law to pay any such amount and to add the amount so paid together
with interest at the Default Rate to the indebtedness hereby secured.
Section 1.09 Condemnation. (a) In the event the Mortgaged Property
or any part thereof or interest therein, shall be taken or damaged by
eminent domain, alteration of the grade of any street, or there shall occur
any other injury to or decrease in the value of the Mortgaged Property, by
reason of any public or quasi-public improvement or condemnation proceeding,
or in any other similar manner ("Condemnation"), or should Trustor receive
any notice or other information regarding such Condemnation or a proposed
Condemnation, Trustor shall give prompt written notice thereof to
Beneficiary.
(b) All compensation, awards and other payments or
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relief payable as a result of any such Condemnation, shall be payable in the
manner provided for in the Agreement. All such compensation, awards,
damages, rights of action and proceeds awarded to Trustor (the "Proceeds")
are hereby assigned to Beneficiary and Trustor agrees to execute such
further assignments of the Proceeds as Beneficiary may require. Beneficiary
shall be under no obligation to question the amount of any such award or
compensation and may accept the same in the amount paid. All Proceeds may be
applied either against the Secured Obligations (in such order and priority
as Beneficiary shall determine consistent with the Agreement) or to restore
the Premises, at the discretion of Beneficiary, except as may be otherwise
provided in the Agreement.
(c) Unless otherwise provided in the Agreement, nothing
herein contained shall be deemed to excuse Trustor from repairing or
maintaining the Premises as provided in Section 1.12 hereof or restoring all
damage or destruction to the Mortgaged Property, regardless of whether or
not there are proceeds available or whether any such Proceeds are sufficient
in amount, and the application or release by Beneficiary of any Proceeds
shall not cure or waive any default or notice of default under this Deed of
Trust or invalidate any act done pursuant to such notice.
(d) Receipt by Beneficiary and application in reduction of
indebtedness of any Proceeds less than the full amount of the then
outstanding Secured Obligations shall not defer, alter or modify Trustor's
obligation to continue to pay the regular installments of principal,
interest on the outstanding principal balance and other charges specified in
the Secured Obligations and herein.
(e) If prior to the receipt of the Proceeds by Beneficiary
the condemned Premises shall have been sold on foreclosure of this Deed of
Trust, Beneficiary shall, nevertheless, have the right to receive the
Proceeds and to retain, for its own account, (i) an amount equal to the
counsel fees, costs and disbursements incurred by Beneficiary in connection
with collection of the Proceeds and not repaid by Trustor and (ii) the full
amount of all such Proceeds, if Beneficiary is the successful purchaser at
the foreclosure sale, to the extent of amounts owed under the Secured
Obligations or hereunder.
Section 1.10 Beneficiary's Performance of Trustor's Obligations. If
Trustor shall fail to perform any of the covenants contained herein or any
covenant contained in the Agreement or any other Loan Document, Beneficiary
may, but shall not be obligated to, make advances and/or disbursements to
perform the same. Trustor will repay on demand all sums so advanced and/or
disbursed with interest at the Default Rate from the date of making such
advance and/or disbursement until such sums have been repaid and all sums so
advanced and/or
14
disbursed, together with interest thereon at the Default Rate, shall be a
lien upon the Mortgaged Property and shall be secured hereby. The provisions
of this Section 1.10 shall not prevent any default in the observance of any
covenant contained herein or in the Secured Obligations or any other Loan
Document from constituting an Event of Default.
Section 1.11 Financial Records. Trustor will provide the financial
statements to Beneficiary required pursuant to the terms of the Agreement.
Section 1.12 Waste and Maintenance. Trustor will not threaten,
commit, permit or suffer any waste to occur on or to the Mortgaged Property
or any part thereof or alter or demolish the Mortgaged Property or any part
thereof in any manner or make any change in its use (except as provided in
the Agreement) or any change which will in any way increase any fire or
other hazards arising out of construction or operation of the Mortgaged
Property. Trustor will, at all times, maintain the Mortgaged Property as
required pursuant to the terms of the Agreement.
Section 1.13 Enforcement Expenses. Except where inconsistent with
the laws of the state in which the Mortgaged Property is located, Trustor
agrees that if any action or proceeding be commenced, including an action to
foreclose this Deed of Trust or to collect the indebtedness hereby secured,
to which action or proceeding Beneficiary is made a party by reason of the
execution of this Deed of Trust or the Secured Obligations which it secures,
or in which it becomes necessary to defend or uphold the lien of this Deed
of Trust, all sums paid by Beneficiary for the expense of any litigation to
prosecute or defend the transaction and the rights and liens created hereby
(including reasonable attorneys' fees) shall be paid by Trustor together
with interest thereon from date of payment by Beneficiary at the Default
Rate. All such sums paid and the interest thereon shall be immediately due
and payable, shall be a lien upon the Mortgaged Property, and shall be
secured hereby as shall be all such sums incurred in connection with
enforcement by Beneficiary of its rights hereunder or under any other Loan
Document.
Section 1.14 Defense of Beneficiary's Interests. If the interest of
Beneficiary in the Mortgaged Property or any part thereof or the lien or
security interest of this Deed of Trust thereon shall be attacked, directly
or indirectly, or if legal proceedings shall be instituted against Trustee,
Trustor or Beneficiary with respect thereto or against Trustor, Trustor upon
its learning thereof, will promptly give written notice thereof to
Beneficiary and Trustor will, at Trustor's cost and expense, exert itself
diligently to cure, or will cause to be
15
cured, any defect that may have developed or be claimed to exist, and will
take all necessary and proper steps for the protection and defense thereof
and will take, or will cause to be taken, such action as is appropriate to
the defense of any such legal proceedings, including, but not limited to,
the employment of counsel and the prosecution and defense of litigation.
Section 1.15 No Impairment of Security. In no event shall Trustor
do or permit to be done, or omit to do or permit the omission of, any act or
thing, the doing, or omission, of which would materially impair the security
of this Deed of Trust or materially impair the value of the Mortgaged
Property or any part thereof.
Section 1.16 Restrictions on Transfers and Mortgages. Unless
otherwise permitted pursuant to the terms of the Agreement, Trustor will not
directly or indirectly, by transfer, mortgage, conveyance, or sale of an
interest in Trustor permit, do or suffer the assignment, lease, transfer,
sale, conveyance or encumbrance of the Mortgaged Property, or any part
thereof or any interest therein, without the express prior written consent
of Beneficiary unless otherwise permitted pursuant to the terms of the
Agreement. While the Secured Obligations are outstanding, neither the
structure nor the ownership of Trustor may be changed without the express
prior written consent of Beneficiary unless otherwise permitted pursuant to
the terms of the Agreement.
Section 1.17 Beneficiary's Defense. Beneficiary or Trustee may
appear in and defend any action or proceeding at law or in equity or in
bankruptcy purporting to affect the Premises or the security hereof or the
rights and powers of Beneficiary or Trustee, and any appellate proceedings,
and in such event Trustor shall pay all of Beneficiary's and Trustee's
costs, charges and expenses, including cost of evidence of title and
attorneys' fees incurred in such action or proceeding. All costs, charges
and expenses so incurred, together with interest thereon at the Default Rate
from the date of payment of same by Beneficiary or Trustee as aforesaid,
shall be secured by the lien of this Deed of Trust and shall be due and
payable upon demand.
Section 1.18 Environmental Compliance. Trustor will perform and
comply promptly with, and cause the Premises to be maintained, used and
operated in accordance with, all applicable federal, state and local laws
pertaining to air and water quality, hazardous waste, waste disposal, air
emissions and other environmental matters, as set forth in the Agreement.
Section 1.19 Zoning Changes. Trustor will not consent to, join in,
permit or allow any change in the zoning laws or
16
ordinances relating to or affecting the Premises which could reasonably be
expected to materially adversely affect the Premises and will promptly
notify Beneficiary of any changes to the zoning laws.
Section 1.20 Grant of Security Interest. Trustor, as further
security for the payment of said indebtedness and in addition to all the
rights and remedies otherwise available to Beneficiary or Trustee under this
Deed of Trust and the other Loan Documents, grants to Beneficiary and
Trustee a security interest, under the Uniform Commercial Code as in effect
in the state where all or any of the Fixtures are located, in and to the
Fixtures, and all proceeds thereof. Upon an Event of Default, Beneficiary
and Trustee shall have, in addition to all the other rights and remedies
allowed by law, the rights and remedies of a secured party under the Uniform
Commercial Code as in effect at that time. Trustor further agrees that the
security interest created hereby also secures all expenses of Beneficiary
and Trustee (including reasonable expenses for legal services of every kind,
and cost of any insurance, and payment of taxes or other charges) incurred
in or incidental to, the custody, care, sale or collection of, or
realization upon, any of the property secured hereby or in any way relating
to the enforcement or protection of the rights of Beneficiary or Trustee
hereunder, together with interest thereon at the Default Rate until paid.
Section 1.21 Compliance with Laws and ADA Compliance.
(a) Trustor warrants and covenants that the Premises are
and will continue to be substantially in compliance with all applicable
local, county, state and federal laws and regulations and all building,
housing and fire codes, rules and regulations.
(b) Without limiting the provisions of subsection (a) of
this Section 1.25: (i) Trustor represents and warrants to Beneficiary that
Trustor is substantially in compliance with the Americans with Disabilities
Act of 1990 (42 U.S.C.A. sec. 12101 et. seq.), as the same may be amended
from time to time (the "ADA") and all other federal, state and local laws
pertaining to the accessibility of the Premises by persons with disabilities
(the ADA and such other laws are, collectively, the "Accessibility Laws");
(ii) Trustor covenants to ensure that the Premises will at all times
substantially comply with all applicable Accessibility Laws and, upon the
request of Beneficiary, Trustor will conduct such surveys of the Premises as
Beneficiary shall require to ascertain such compliance; (iii) Trustor will
maintain accurate records of all expenditures made in connection with any
alterations to the Premises and will deliver copies thereof to Beneficiary
upon
17
Beneficiary's request; and (iv) Trustor shall defend, indemnify and hold
harmless Beneficiary, its employees, agents, officers and directors, and any
parent or affiliate of Beneficiary, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, cost or expenses of
whatever kind or nature, known or unknown, contingent or otherwise, arising
out or in any way related to any violations of the Accessibility Laws
(including, without limitation, any costs incurred by Beneficiary in
complying with any Accessibility Laws). Neither payment of the indebtedness
secured hereby nor foreclosure shall operate as a discharge of Trustor's
obligations under this subsection (b). In the event Trustor tenders a deed
in lieu of foreclosure, Trustor shall deliver the Premises to Beneficiary
(or its designee) substantially free of any violations of the Accessibility
Laws. In the event Trustor does not timely perform any of the above
obligations, Beneficiary after 30 days notice to Trustor may perform said
obligations at the expense of Trustor and Trustor shall, upon written demand
from Beneficiary, reimburse Beneficiary for all costs, including attorney's
fees and out-of-pocket expenses, and all liabilities incurred by Beneficiary
by reason of the foregoing, with interest thereon at the Default Rate from
the date of such payment by Beneficiary to the date of repayment. Until
paid, said costs and expenses shall be secured by this Deed of Trust.
Section 1.22 Other Multistate Mortgages. The indebtedness secured
in part by this Deed of Trust is secured by mortgages and/or deeds of trust
encumbering and conveying lands and other property and/or leasehold
interests therein in other states as more particularly described in the
Agreement, all of which mortgages and/or deeds of trust, including this
instrument, being hereafter referred to as "the mortgage instruments."
It is understood and agreed that all of the properties of all kinds
conveyed or encumbered by the mortgage instruments are security for the
Secured Obligations without allocation of any one or more of the parcels or
portions thereof to any portion of the Secured Obligations less than the
whole amount thereof unless so stated in said mortgage instruments.
It is specifically covenanted and agreed that Beneficiary or
Trustee may proceed, at the same or at different times, to foreclose said
mortgage instruments, or any of them, by any proceedings appropriate in the
state where any of the land lies, and that no event of enforcement taking
place in any state including, without limiting the generality of the
foregoing, any pending foreclosure, judgment or decree of the foreclosure,
foreclosure sale, rents received, possession taken, deficiency judgment or
decree, or judgment taken on the Secured Obligations, shall in any way stay,
preclude or bar enforcement of the mortgage instruments or any of them in
any
18
other state, and that Beneficiary or Trustee may pursue any or all its
remedies to the maximum extent permitted by state law until all of the
Secured Obligations now or hereafter secured by any or all of the mortgage
instruments has been paid and discharged in full.
Neither Trustor, nor any person claiming under Trustor, shall have
or enjoy any right to marshalling of assets, all such right being hereby
expressly waived as to Trustor and all persons claiming under it, including
junior lienors. No release of personal liability of any person whatever and
no release of any portion of the property now or hereafter subject to the
lien of any of the mortgage instruments shall have any effect whatever by
way of impairment or disturbance of the lien or priority of any of said
mortgage instruments. Any foreclosure or other appropriate remedy brought in
any of the states aforesaid may be brought and prosecuted as to any part of
the mortgaged security, wherever located, without regard to the fact that
foreclosure proceedings or other appropriate remedies have or have not been
instituted elsewhere on any other land subject to the lien of said mortgage
instruments or any of them.
Section 1.23 Leasehold and Leasehold Instruments.
(a) Trustor covenants and agrees to faithfully comply with
and perform all of its obligations under the Leasehold Instruments and to
promptly cure any default by it under the Leasehold Instruments.
(b) Trustor may modify, amend or terminate any Leasehold
Instrument without the prior written consent provided such action is
consistent with the terms of the Agreement.
(c) Trustor will promptly give Beneficiary a copy of any
default notice given to Trustor with respect to any Leasehold Instrument.
ARTICLE II
EVENTS OF DEFAULT AND REMEDIES
Section 2.01 Events of Default. The following shall constitute
defaults hereunder and, after the giving of notice and the passage of time,
if any, as provided herein, shall constitute "Events of Default" hereunder:
(a) if Trustor shall fail to pay when due any Secured
Obligation after the passage of any applicable notice or
19
grace period, if any; or
(b) If an Event of Default, as defined in the Agreement,
shall occur under the Agreement.
Section 2.02 Beneficiary's Remedies. (a) During the continuance of
any Event of Default, Beneficiary, without notice or presentment, each of
which are hereby waived by Trustor, may, subject to the provisions of the
Agreement, declare the entire principal of the Secured Obligations then
outstanding and all accrued and unpaid interest thereon and all other
amounts owing in respect thereof (if not then due and payable, whether by
acceleration or otherwise), to be due and payable immediately, and upon any
such declaration the principal of the Secured Obligations and said accrued
and unpaid interest shall become and be immediately due and payable,
anything in the instruments evidencing the Secured Obligations or in this
Deed of Trust to the contrary notwithstanding;
(b) During the continuance of any Event of Default,
Beneficiary or Trustee may enter into and upon all or any part of the
Premises, and, having and holding the same, may use, operate, manage and
control the Mortgaged Property or any part thereof and conduct the business
thereof, either personally or by its superintendents, managers, agents,
servants, attorneys or receivers; and likewise, from time to time, at the
expense of Trustor, Beneficiary and/or Trustee may make all necessary or
proper repairs, renewals and replacements and such useful alterations,
additions, betterments and improvements thereto and thereon as to it may
deem advisable in its sole judgment; and in every such case Beneficiary
and/or Trustee shall have the right to manage and operate the Mortgaged
Property and to carry on the business thereof and exercise all rights and
powers of Trustor with respect thereto either in the name of Trustor or
otherwise as Beneficiary or Trustee shall deem best; and Beneficiary or
Trustee shall be entitled, with or without entering into or upon the
Premises, to collect and receive all gross receipts, earnings, revenues,
rents, maintenance payments, issues, profits and income of the Mortgaged
Property and every part thereof, all of which shall for all purposes
constitute property of Beneficiary; and, after deducting the expenses of
conducting the business thereof and of all maintenance, repairs, renewals,
replacement, alterations, additions, betterments and improvements and
amounts necessary to pay taxes, assessments, insurance and prior or other
proper charges upon the Mortgaged Property or any part thereof, as well as
just and reasonable compensation for the services of Beneficiary and/or
Trustee and for all attorneys, counsel, agents, clerks, servants and other
employees by it properly engaged and employed, Beneficiary may apply the
moneys arising as aforesaid in such manner and at such times as Beneficiary
shall determine in its discretion consistent with the Agreement to the
payment of the Secured Obligations and the interest
20
thereon, when and as the same shall become payable and/or to the payment of
any other sums required to be paid by Trustor under this Deed of Trust;
(c) During the continuance of any such Event of Default,
Trustor covenants and agrees as follows:
(1) Trustee or Beneficiary may, with or without entry,
personally or by their agents or attorneys, insofar as applicable,
sell the Mortgaged Property or any part thereof and pursuant to the
procedures provided by law, and all estate, right, title, interest,
claim and demand therein, and right of redemption thereof, at one
or more sales as an entity or in parcels, and at such time and
place upon such terms and after such notice thereof as may be
required or permitted by law; or
(2) Trustee or Beneficiary may institute an action of
mortgage foreclosure or institute other proceedings according to
law for the foreclosure hereof, and may prosecute the same to
judgment, execution and sale for the collection of the Secured
Obligations secured hereby, and all interest with respect thereto,
together with all taxes and insurance premiums advanced by
Beneficiary or Trustee and other sums payable by Trustor hereunder,
and all fees, costs and expenses of such proceedings, including
attorneys' fees and expenses; or
(3) Trustee or Beneficiary may, if default be made in the
payment of any part of the Secured Obligations, proceed with
foreclosure of the liens evidenced hereby in satisfaction of such
item either through the courts or by conducting the sale as herein
provided, and proceed with foreclosure of the security interest
created hereby, all without declaring the whole of the Secured
Obligations due, and provided that if sale of the Mortgaged
Property, or any portion thereof, is made because of default in
payment of a part of the Secured Obligations, such sale may be made
subject to the unmatured part of the Secured Obligations, but as to
such unmatured part of the Secured Obligations (and it is agreed
that such sale, if so made, shall not in any manner affect the
unmatured part of the Secured Obligations) this Deed of Trust shall
remain in full force and effect just as though no sale had been
made under the provisions of this paragraph. And it is further
agreed that several sales may be
21
made hereunder without exhausting the right of sale for any
unmatured part of the Secured Obligations, it being the purpose to
provide for a foreclosure and sale of the Mortgaged Property, or
any part thereof, for any matured portion of the Secured
Obligations without exhausting the power to foreclose and to sell
the Mortgaged Property, or any part thereof, for any other part of
the Secured Obligations whether matured at the time or
subsequently maturing; or
(4) Trustee or Beneficiary may take such steps to protect
and enforce its rights whether by action, suit or proceeding in
equity or at law for the specific performance of any covenant,
condition or agreement in the Loan Documents or in aid of the
execution of any power herein granted, or for any foreclosure
hereunder, or for the enforcement of any other appropriate legal or
equitable remedy or otherwise as Beneficiary or Trustee shall
elect; or
(5) Beneficiary or Trustee may exercise in respect of the
Mortgaged Property consisting of Fixtures, all of the rights and
remedies available to a secured party upon default under the
applicable provisions of the Uniform Commercial Code in effect in
the state where the Mortgaged Property is located; or
(6) Beneficiary or Trustee may apply any proceeds or
amounts held in escrow pursuant to the terms of this Deed of Trust
to payment of any part of the Secured Obligations in such order of
priority as Beneficiary may determine consistent with the
Agreement; or
(7) Any sale as aforesaid may be subject to such existing
tenancies as Beneficiary, in its sole discretion, may elect.
Section 2.03 Sale, Foreclosure, etc. (a) Beneficiary or Trustee may
adjourn from time to time any sale by it to be made under or by virtue of
this Deed of Trust by announcement at the time and place appointed for such
sale or for such adjourned sale or sales; and, except as otherwise provided
by any applicable provision of law, Beneficiary or Trustee, without further
notice or publication, may make such sale at the time and place to which the
same shall be so adjourned.
(b) Upon the completion of any sale or sales made by
Beneficiary or Trustee under or by virtue of this Article II, Beneficiary or
Trustee, or any officer of any court empowered
22
to do so, shall execute and deliver to the accepted purchaser or purchasers
a good and sufficient instrument, or good and sufficient instruments,
conveying, assigning and transferring all estate, right, title and interest
in and to the properties, interests and rights sold. Beneficiary and Trustee
are each hereby irrevocably appointed the true and lawful attorney of
Trustor, in its name and stead, to make all the necessary conveyances,
assignments, transfers and deliveries of any part of the Mortgaged Property
and rights so sold, and for that purpose Beneficiary or Trustee may execute
all necessary instruments of conveyance, assignment and transfer and may
substitute one or more persons with like power, Trustor hereby ratifying and
confirming all that its said attorney or such substitute or substitutes
shall lawfully do by virtue hereof. Nevertheless, Trustor, if so requested
by Beneficiary or Trustee, shall ratify and confirm any such sale or sales
by executing and delivering to Beneficiary or Trustee or to such purchaser
or purchasers all such instruments as may be advisable, in the reasonable
judgment of Beneficiary or Trustee, for the purpose and as may be designated
in such request.
(c) Upon any sale, whether under the power of sale hereby
given or by virtue of judicial proceedings, it shall not be necessary for
Beneficiary or Trustee, or any public officer acting under execution or
order of court, to have present or constructive possession of any of the
Mortgaged Property.
(d) The recitals contained in any conveyance made by
Beneficiary or Trustee to any purchaser at any sale made pursuant hereto or
under applicable law shall be full evidence of the matters therein stated,
and all prerequisites to such sale shall be presumed to have been satisfied
and performed.
(e) Any such sale or sales made under or by virtue of this
Deed of Trust, whether under the power of sale hereby granted and conferred,
or under or by virtue of any judicial proceedings, shall operate to divest
all right, title, interest, claim and demand whatsoever, either by law or in
equity, of Trustor in and to the premises and property sold, and shall be a
perpetual bar, both at law and in equity, against Trustor, its successors
and assigns, and against any and all persons or entities claiming the
premises and property sold, or any part thereof, from through or under
Trustor and its successors or assigns.
(f) The receipt given by Beneficiary or Trustee for the
purchase money paid at any such sale, or the receipt given by any other
person authorized to receive the same, shall be sufficient discharge
therefor to any purchaser of the property, or any part thereof, sold as
aforesaid, and no such purchaser, or his representatives, grantees or
assigns, after paying such
23
purchase money and receiving such receipt, shall be bound (i) to see to the
application of such purchase money or any part thereof upon or for any trust
or purpose of this Deed of Trust, (ii) by the misapplication or
nonapplication of any such purchase money, or any part thereof, or (iii) to
inquire as to the authorization, necessity, expediency or regularity of any
such sale.
(g) In case the liens or security interests hereunder, or
by the exercise of any other right or power, shall be foreclosed by
Beneficiary's or Trustee's sale or by other judicial or non-judicial action,
the purchaser at any such sale shall receive, as an incident to its
ownership, immediate possession of the property purchased, and if Trustor or
Trustor's successors shall hold possession of said property, or any part
thereof, subsequent to foreclosure, Trustor or Trustor's successors shall be
considered as tenants at sufferance of the purchaser at foreclosure sale,
and anyone occupying the property after demand made for possession thereof
shall be guilty of forcible detainer and shall be subject to eviction and
removal, forcible or otherwise, with or without process of law, and all
damages by reason thereof are hereby expressly waived.
(h) In the event a foreclosure hereunder shall be
commenced by Beneficiary or Trustee, Beneficiary or Trustee may at any time
before the sale abandon the suit, and may then institute suit for the
collection of the Secured Obligations and for the foreclosure of the liens
and security interest hereof. If Beneficiary or Trustee should institute a
suit for the collection of the Secured Obligations and for a foreclosure of
the liens and security interest hereof, it may at any time before the entry
of a final judgment in said suit dismiss the same and proceed to sell the
Mortgaged Property, or any part thereof, in accordance with provisions of
this Deed of Trust.
(i) Any reasonable expenses incurred by Beneficiary or
Trustee in prosecuting, resetting or settling the claim of Beneficiary shall
become an additional Secured Obligation of Trustor hereunder.
(j) In the event of any sale made under or by virtue of
this Article II (whether made under the power of sale herein granted or
under or by virtue of judicial proceedings or of a judgment or decree of
foreclosure and sale), the entire principal of, and interest on, the Secured
Obligations, if not previously due and payable, and all other sums required
to be paid by Trustor pursuant to this Deed of Trust, immediately thereupon
shall, anything in the Secured Obligations or in this Deed of Trust to the
contrary notwithstanding, become due and payable.
(k) The purchase money proceeds or avails of any
24
sale made under or by virtue of this Article II, together with any other
sums which then may be held by Beneficiary under this Deed of Trust, whether
under the provisions of this Article II or otherwise, shall be applied in
accordance with the laws of the state where the Mortgaged Property is
located, and to the extent not inconsistent, first to the payment of the
costs and expenses of such sale, including reasonable compensation to
Beneficiary or Trustee and their agents and counsel, second to the payment
of the amounts due and owing under or in respect of the Secured Obligations
for principal and interest and any other amounts including (without
limitation) any other sums required to be paid by Trustor pursuant to any
provision of this Deed of Trust or any other Loan Document, with interest at
the Default Rate from and after the happening of any Event of Default in the
order set forth in Section 9.2(a) of the Agreement, all with interest at the
Default Rate from the date such sums were or are required to be paid under
this Deed of Trust, and third to the payment of the surplus, if any, to
whomsoever may be lawfully entitled to receive the same.
(l) Upon any sale made under or by virtue of this Article
II, whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, Beneficiary and any other Secured Party or Trustee may bid for and
acquire the Mortgaged Property or any part thereof and Beneficiary and any
other Secured Party (other than the Merchandise Letter of Credit Bank, as
that term is defined in the Agreement) in lieu of paying cash therefor may
make settlement for the purchase price by crediting some or all of the
indebtedness of Trustor secured by this Deed of Trust owing to such Secured
Party (or, in the case of Beneficiary, owing to all Secured Parties) the net
sales price after deducting therefrom the expenses of the sale and the costs
of the action and any other sums which Beneficiary or Trustee is authorized
to deduct under this Deed of Trust.
Section 2.04 Payments, Judgment, etc. (a) In case an Event
of Default under the Agreement and the acceleration of the obligations
thereunder shall have occurred, then Trustor will in accordance with the
Agreement pay to Beneficiary the whole amount which then shall have become
due and payable on the Secured Obligations, whether for principal and
interest or both or otherwise, as the case may be, which interest shall then
accrue at the Default Rate on the then unpaid principal of or other amounts
constituting the Secured Obligations, and the sums re quired to be paid by
Trustor pursuant to any provision of this Deed of Trust, and in addition
thereto such further amount as shall be suf ficient to cover the costs and
expenses of collection, including com pensation to Beneficiary and/or
Trustee, their agents and counsel and any expenses incurred by Beneficiary
or Trustee hereunder. In
25
the event Trustor shall fail forthwith to pay such amounts upon demand,
Beneficiary and/or Trustee shall be entitled and empowered to institute such
action or proceedings at law or in equity as may be advised by its counsel
for the collection of the sums so due and unpaid, and may prosecute any such
action or proceedings to judgment or final decree.
(b) Beneficiary and/or Trustee shall be entitled to
recover judgment as aforesaid either before or after or during the pendency
of any proceedings for the enforcement of the provisions of this Deed of
Trust and the right of Beneficiary and/or Trustee to recover such judgment
shall not be affected by any entry or sale hereunder, or by the exercise of
any other right, power or remedy for the enforcement of the provisions of
this Deed of Trust or the foreclosure of the lien hereof; and in the event
of a sale of the Mortgaged Property or any part thereof and of the
application of the proceeds of sale, as provided in this Deed of Trust, to
the payment of the indebtedness hereby secured, Beneficiary and/or Trustee
shall be entitled to enforce payment of, and to receive all amounts then
remaining due and unpaid upon, the Secured Obligations, and to enforce
payment of all other charges, payments and costs due under this Deed of
Trust and shall be entitled to recover judgment for any portion of the debt
remaining unpaid, with interest thereon at the Default Rate. In case of
proceedings against Trustor in insolvency or bankruptcy or any proceedings
for its reorganization or involving the liquidation of its assets, then
Beneficiary and/or Trustee shall be entitled to prove the whole amount of
principal and interest due upon the Secured Obligations to the full amount
thereof, and all other payments, charges and costs due under this Deed of
Trust without deducting therefrom any proceeds obtained from the sale of the
whole or any part of the Mortgaged Property.
(c) No recovery of any judgment by Beneficiary or Trustee
and no levy of an execution under any judgment upon the Mortgaged Property
or upon any other property of Trustor shall affect, in any manner or to any
extent, the lien of this Deed of Trust upon the Mortgaged Property or any
part thereof, or any liens, rights, powers or remedies of Beneficiary or
Trustee hereunder, but such liens, rights, powers and remedies of
Beneficiary or Trustee shall continue unimpaired as before.
(d) Any moneys thus collected by Beneficiary or Trustee
under this Section 2.04 shall be applied by Beneficiary in accordance with
the provisions of paragraph (k) of Section 2.03.
Section 2.05 Receiver, Waiver. After the happening of any Event of
Default and immediately upon the commencement of any action, suit or other
legal proceedings by Beneficiary or Trustee to obtain judgment for the
principal of, or interest on, and any other amounts constituting the Secured
Obligations, including (without limitation) all other sums required to be
26
paid by Trustor pursuant to any provision of this Deed of Trust or of any
nature in aid of the enforcement of the Secured Obligations or of this Deed
of Trust, Trustor will (a) waive the issuance and service of process and
submit to a voluntary appearance in such action, suit or proceeding and (b)
if required by Beneficiary or Trustee, consent to the appointment of a
receiver or receivers of the Mortgaged Property or any part thereof and of
all the earnings, revenues, rents, maintenance payments, issues, profits and
income thereof in accordance with Section 2.11 hereof. After the happening
of any Event of Default and during its continuance, or upon the commencement
of any proceedings to foreclose this Deed of Trust or to enforce the
specific performance hereof or in aid thereof or upon the commencement of
any other judicial proceeding to enforce any right of Beneficiary or
Trustee, Beneficiary or Trustee shall be entitled, as a matter of right, if
it shall so elect, without the giving of notice to any other party and
without regard to the adequacy or inadequacy of any security for the Deed of
Trust indebtedness, forthwith either before or after declaring the unpaid
principal of the Secured Obligations to be due and payable, to the
appointment of such a receiver or receivers.
Section 2.06 Beneficiary's Possession. Notwithstanding the
appointment of any receiver, liquidator or trustee of Trustor or of any of
its property, or of the Mortgaged Property or any part thereof, Beneficiary
and Trustee shall be entitled to retain possession and control of the
Mortgaged Property.
Section 2.07 Remedies Cumulative. No remedy herein conferred upon
or reserved to Beneficiary or Trustee is intended to be exclusive of any
other remedy or remedies which Beneficiary or Trustee may be entitled to
exercise against Trustor and each and every such remedy shall be cumulative,
and shall be in addition to every other remedy given hereunder or in the
Agreement or in any other Loan Document now or hereafter existing at law or
in equity or by statute. No delay by or omission of Beneficiary or Trustee
to exercise any right or power shall be construed to be a waiver of any
Event of Default or any acquiescence therein; and every power and remedy
given in this Deed of Trust or in the Agreement or in any other Loan
Document to Beneficiary or Trustee may be exercised from time to time as
often as may be deemed expedient by Beneficiary or Trustee. The resort to
any remedy provided hereunder or in the Agreement or in any other Loan
Document or provided by law or at equity shall not prevent the concurrent or
subsequent employment of any other appropriate remedy or remedies against
Trustor. By the acceptance of payment of principal of or interest on or any
other amount due in respect of any of the Secured Obligations after its due
date, Beneficiary and Trustee do not waive the right either to require
prompt payment when
27
due of all other amounts secured hereby or to regard as an Event of Default
the failure to pay any other such amounts. Nothing in this Deed of Trust or
in the Agreement or in any instrument evidencing the Secured Obligations
shall affect the obligation of Trustor to pay (i) the principal of, and
interest on, the Secured Obligations in the manner and at the time and place
therein or in the Agreement expressed or (ii) the other Secured Obligations
in the manner and at the time herein expressed.
Section 2.08 Agreement by Trustor. Trustor will not at any time
insist upon, or plead, or in any manner whatever claim or take any benefit
or advantage of any stay or extension or moratorium law, any exemption from
execution or sale of the Mortgaged Property or any part thereof, wherever
enacted, now or at any time hereafter in force, which may affect the
covenants and terms of performance of this Deed of Trust or any other Loan
Document, or claim, take or insist upon any benefit or advantage of any law
now or hereafter in force providing for the valuation or appraisal of the
Mortgaged Property, or any part thereof, prior to any sale or sales thereof
which may be made pursuant to any provision herein, or pursuant to the
decree, judgment or order of any court of competent jurisdiction, or, after
any such sale or sales, claim or exercise any right under any statute
heretofore or hereafter enacted to redeem the property so sold or any part
thereof; and Trustor hereby expressly waives all benefit or advantage of any
such law or laws and covenant not to hinder, delay or impede the execution
of any power herein granted or delegated to Beneficiary or Trustee, but to
suffer and permit the execution of every power as though no such law or laws
had been made or enacted. Trustor, waives, to the extent that it lawfully
may, all right to have the Mortgaged Property or any part thereof marshaled
upon any foreclosure hereof.
Section 2.09 Use and Occupancy Payments. During the continuance of
any Event of Default and pending the exercise by Beneficiary and Trustee of
their rights to exclude Trustor from all or any part of the Premises, unless
Trustor is legally entitled to continue possession of the Premises, Trustor
agrees to pay the fair and reasonable rental value for the use and occupancy
of the Premises or any portion thereof which are in its possession for such
period and, upon default of any such payment, will vacate and surrender
possession of the Premises to Beneficiary or Trustee or to a receiver, if
any, and in default thereof may be evicted by any summary action or
proceeding for the recovery of possession of the Premises for non-payment of
rent, however designated. Such rental obligation by the Trustor shall be
determined by the extent that the Secured Obligations have been deemed to
have been reduced (the "Reduction). It is agreed that the fair and
reasonable rental value for use and occupancy of the Premises may be
difficult or impossible to ascertain; therefore, Trustor and Beneficiary
28
hereby agree that the fair and reasonable rental value shall in no event be
less than an amount equal to the debt service on the Reduction. Any payments
received by Beneficiary shall be applied in accordance with Section 2.03(k)
of this Deed of Trust.
Section 2.10 Beneficiary's Right to Purchase. In case of any sale
under the foregoing provisions of this Article II, whether made under the
power of sale hereby given or pursuant to judicial proceedings, Beneficiary
or Trustee may bid for and purchase any property, and may make payment
therefor as hereinafter set forth or as set forth in Section 2.03(l) above,
and, upon compliance with the terms of said sale, may hold, retain and
dispose of such property without further accountability therefor. For the
purpose of making settlement or payment for the property or properties
purchased, Beneficiary and Trustee shall be entitled to use and apply such
of the Secured Obligations held by it or the other Secured Parties,
including (without limitation) any accrued and unpaid interest thereon, as
it may elect, or as may be otherwise provided for in Section 2.03(l) above.
Section 2.11 Appointment of Receiver. Upon application of
Beneficiary or Trustee to any court of competent jurisdiction, if any Event
of Default shall have occurred and so long as it shall be continuing, to the
extent permitted by law, a receiver may be appointed to take possession of
and to operate, maintain, develop and manage the Mortgaged Property or any
part thereof. In every case when a receiver of the whole or any part of the
Mortgaged Property shall be appointed under this Section 2.11 or otherwise,
the net income and profits of the Mortgaged Property shall, subject to the
order of any court of competent jurisdiction, be paid over to, and shall be
received by, Beneficiary or Trustee to be applied as provided in Section
2.03(k) hereof.
Section 2.12 No Waiver. Beneficiary and/or Trustee may resort to
any security given by this Deed of Trust or to any other security now
existing or hereafter given to secure the payment of any of the Secured
Obligations secured hereby, in whole or in part, and in such portions and in
such order as may seem best to Beneficiary or Trustee in its reasonable
discretion, and any such action shall not in any way be considered as a
waiver of any of the rights, benefits, liens or security interest created by
this Deed of Trust.
ARTICLE III
ASSIGNMENT OF LEASES AND RENTS
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Section 3.01 Lease Related Definitions. As used in this Deed of
Trust: (a) "Lease" means any lease, sublease, or other similar agreement,
now or hereafter existing, under the terms of which any person other than
Trustor has or acquires any right to occupancy or use of the Mortgaged
Property, or any part thereof, or interest therein; (b) "Lessee" means the
lessee, sublessee, licensee, tenant or other person having the right to
occupy or use all or any part of the Mortgaged Property under a Lease; and
(c) "Rent" means the rents, additional rents and other consideration payable
to Trustor by the Lessee under the terms of a Lease. Whenever reference is
made in this Deed of Trust to a lease, license, lessee, licensee, tenancy or
tenant, such reference shall be deemed to include a sublease, sublessee,
license, licensee, subtenancy or subtenant, as the case may be.
Section 3.02 Assignment of Leases and Rents. Trustor hereby assigns
to Beneficiary and to Trustee for the benefit of Beneficiary all Leases,
together with all Rents payable under the Leases, now or at any time
hereafter existing, such assignment being upon the following terms: (a)
until receipt from Beneficiary of notice of the occurrence of an Event of
Default, each Lessee may pay rent directly to Trustor, (b) upon receipt from
Beneficiary of notice that an Event of Default exists, each Lessee shall,
and is hereby authorized and directed to, pay directly to Beneficiary or
Trustee (as therein specified) all Rent thereafter accruing, and the receipt
of such Rent by Beneficiary or Trustee shall be a release of such Lessee to
the extent of all amounts so paid, (c) Rent so received by Beneficiary or
Trustee shall be applied by Beneficiary or Trustee first to the expenses, if
any, of collection and then in accordance with Article II hereof, (d)
without impairing its rights hereunder, Beneficiary or Trustee may, at its
option, at any time and from time to time, release to Trustor Rent so
received by Beneficiary or Trustee, or any part thereof, (e) Beneficiary and
Trustee shall not be liable for their failure to collect, or their failure
to exercise diligence in the collection of, Rent, but shall be accountable
only for Rent that they shall actually receive. As among Beneficiary,
Trustee, Trustor and any person claiming through or under Trustor, the
assignment contained in this Section 3.02 is intended to be absolute,
unconditional and presently effective, and the provisions of subsection
3.02(a) are intended for the benefit of each Lessee and shall never inure to
the benefit of Trustor or any person claiming through or under Trustor. It
shall never be necessary for Beneficiary or Trustee to institute legal
proceedings of any kind whatsoever to enforce the provisions of this Section
3.02. Notwithstanding anything herein to the contrary, Trustor may collect
such Rent until such time as an Event of Default shall occur hereunder.
Section 3.03 Beneficiary's Consent. Nothing in this Article III
shall ever be construed as (a) allowing any Lease
30
without Beneficiary's prior written consent unless otherwise permitted under
the Agreement, or (b) subordinating this Deed of Trust to any Lease.
Section 3.04 Lease Related Covenants. Trustor covenants to: (a)
upon demand by Beneficiary, assign to Beneficiary or Trustee, by separate
instrument in form and substance satisfactory to Beneficiary, any and all
Leases, and/or all Rents payable thereunder, including, but not limited to,
any Lease which is now in existence or which may be executed after the date
hereof; (b) not accept from any Lessee, nor permit any Lessee to pay, Rent
for more than one month in advance except for payment in the nature of
security for performance of Lessee's obligations unless otherwise provided
for in the Lease; (c) comply with the terms and provisions of each Lease
including, without limitation, the payment of all sums required to be paid
by Trustor or which any Lessor has an option to pay under any Lease in order
to prevent any reduction in or offset against any Rent payable under any
Lease or any default thereunder; (d) not amend, extend, cancel, abridge, or
otherwise modify, or accept surrender of, or renew, any Lease without the
written consent of Beneficiary other than in the ordinary course of
business, (e) not assign, transfer or mortgage any Lease without the written
consent of Beneficiary; (f) not assign, transfer, pledge or mortgage any
Rent; (g) not waive, excuse, release or condone any nonperformance of any
covenant of any Lease by any Lessee other than in the ordinary course of
business; (h) give to Beneficiary and Trustee duplicate notice of each
material default by each Lessee; (i) on all Leases executed after the date
hereof, cause each Lessee to agree (and each Lessee under each Lease
executed after the date hereof does so agree) to give to Beneficiary and
Trustee written notice of each and every material default by Trustor under
its Lease and not exercise any remedies under such Lease unless Beneficiary
or Trustee fails to cure such material default within a reasonable period
after Beneficiary and Trustee have received such notice; provided, that
Beneficiary or Trustee shall never have any obligation or duty to cure any
such material default; (j) enforce its rights with regard to all Leases in
the ordinary course of business; and (k) not enter into any Lease affecting
the Mortgaged Property or any part thereof unless otherwise permitted under
the Agreement without the prior approval of Beneficiary.
Section 3.05 Beneficiary Not Liable. Beneficiary and/or Trustee
shall not be obligated to perform or discharge, nor does it hereby undertake
to perform or discharge, any obligation, duty or liability under any Lease,
or under or by reason of this assignment, and Trustor shall and does hereby
agree to indemnify and to hold Beneficiary and Trustee harmless from and
against any and all liability, loss or damage which Beneficiary
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or Trustee may or might incur under any Lease or under or by reason of this
assignment and from and against any and all claims and demands whatsoever
which may be asserted against Beneficiary or Trustee by reason of any
alleged obligations or undertakings on its part to perform or discharge any
of the terms, covenants or agreements contained in any Lease. Should
Beneficiary or Trustee incur any such liability, loss or damage under any
Lease or under or by reason of this assignment, or in the defense of any
such claims or demands, the amount thereof, including all costs, expenses
and attorneys' fees, shall be secured hereby and constitute part of the
Secured Obligations, and Trustor shall reimburse Beneficiary therefore
immediately upon demand, and upon the failure of Trustor to do so
Beneficiary may declare all sums secured by this Deed of Trust immediately
due and payable.
Section 3.06 Estoppel Certificates. On all Leases executed after
the date hereof, all Leases shall provide for the giving by the Lessee of
certificates with respect to the status of such Leases, and Trustor shall
exercise its right to request such certificates within ten (10) days of any
demand therefor by Beneficiary. Trustor shall furnish to Beneficiary or
Trustee, within ten (10) days after a request by Beneficiary or Trustee to
do so, an executed counterpart of all Leases.
Section 3.07 Lease Approval Requirements. On all Leases executed
after the date hereof, all Leases and Lessees of the Premises, or any part
thereof, must be acceptable to and approved by Beneficiary unless otherwise
provided under the Agreement; and all Lessees shall execute such estoppel
certificates, subordinations, attornments and other agreements as
Beneficiary may require. Under no circumstances shall Beneficiary or Trustee
be liable for any obligation to pay any leasing commission, brokerage fee or
similar fee or charge in connection with any Lease nor shall Beneficiary or
Trustee be obligated to complete any Improvements for the benefit of any
Lessee.
ARTICLE IV
MISCELLANEOUS
Section 4.01 Benefit of Beneficiary. All of the grants, covenants,
terms, provisions and conditions of this Deed of Trust shall run with the
land and shall apply to, bind and inure to the benefit of the successors and
assigns of the respective parties hereto; provided, that Trustor may not
assign its obligations hereunder without the prior written consent of
Beneficiary.
Section 4.02 Savings Clause. In the event any one or more of the
provisions contained in this Deed of Trust shall
32
for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall, at the
option of Beneficiary, not affect any other provision of this Deed of Trust
but this Deed of Trust shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein or therein.
Section 4.03 Notices. All notices hereunder shall be given pursuant
to the terms of Section 11.1 of the Agreement, and supplementing such
provisions, notices required to be given to Trustee shall be given at
Trustee's address set forth herein.
Section 4.04 Governing Law. This Deed of Trust shall, without
regard to place of contract or payment, be construed and enforced according
to the laws of the state where the Mortgaged Property is located, all
without regard to principles of conflict of laws.
Section 4.05 No Change. Neither this Deed of Trust nor any
provision hereof may be changed, waived, discharged or terminated, except by
an instrument in writing, signed by Beneficiary and Trustor.
Section 4.06 Security Agreement and Fixture Filing. This Deed of
Trust shall be deemed to be a security agreement and fixture filing pursuant
to the Uniform Commercial Code of the state where the Mortgaged Property is
located.
Section 4.07 No Usury. In the event that Beneficiary, in enforcing
its rights hereunder, determines that charges and fees incurred in
connection with the Secured Obligations may, under the applicable usury
laws, cause the interest rate herein to exceed the maximum allowed by law,
then such interest shall be recalculated and any excess over the maximum
interest permitted by said laws shall be credited to the then principal
outstanding balance to reduce said balance by that amount. It is the intent
of the parties hereto that Trustor under no circumstances shall be required
to pay, nor shall Beneficiary be entitled to collect, any interest which is
in excess of the maximum legal rate permitted under the applicable usury
laws.
Section 4.08 Effect of Partial Release. No release of any part of
the Mortgaged Property or of any other property conveyed to secure the
obligations secured hereby shall in any way alter, vary or diminish the
force, effect or lien or security interest of this Deed of Trust on the
Mortgaged Property or portion thereof remaining subject to the lien and
security interest created hereby.
Section 4.09 Beneficiary's Dealing with Successors and
33
Lessees. In the event Trustor or any of Trustor's successors conveys or
leases without the prior approval of Beneficiary or as otherwise permitted
herein or in the Agreement any interest in the Mortgaged Property, or any
part thereof, to any other party, Beneficiary and Trustee may deal with any
owner or lessee of any part of the Mortgaged Property with reference to this
Deed of Trust and to the Secured Obligations, either by forbearance on the
part of Beneficiary or release of all or any part of the Mortgaged Property
or of any other property securing payment of any Secured Obligations,
without in any way modifying or affecting Beneficiary's and Trustee's
rights, remedies, liens or security interests hereunder (including the right
to exercise any one or more of the remedies described or referred to in
Article I, Article II, Article III or Article IV hereof in the event such
conveyance is made in contravention of the provisions of this Deed of Trust)
or the liability of Trustor or any other party liable for the payment of the
Secured Obligations, in whole or in part. This shall not be construed to
allow any such conveyance or leasing by Trustor, except as permitted herein
or in the Agreement.
Section 4.10 No Waiver by Beneficiary. All options and rights of
election herein provided for the benefit of Beneficiary and/or Trustee are
continuing, and the failure to exercise any such option or right or election
upon a particular default or breach or upon any subsequent default or breach
shall not be construed as waiving the right to exercise such option or
election at any later date. By the acceptance of payment of principal or
interest after its due date, Beneficiary and/or Trustee does not waive the
right either to require prompt payment when due of all other amounts secured
hereby or to regard as an Event of Default the failure to pay any other such
amounts. No exercise of the rights and powers herein granted and no delay or
omission in the exercise of such rights and powers shall be held to exhaust
the same or be construed as a waiver thereof, and every such right and power
may be exercised at any time and from time to time. All grants, covenants,
terms and conditions hereof shall bind Trustor and all successive owners of
the Premises.
Section 4.11 Headings Descriptive. The headings of the several
sections and subsections of this Deed of Trust are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Deed of Trust.
SECTION 4.12 WAIVER OF TRIAL BY JURY. THE TRUSTOR, TRUSTEE AND
BENEFICIARY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED UPON, ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS DEED OF TRUST.
Section 4.13 Indemnification. The Trustor agrees to pay, and to
save, indemnify and keep the Beneficiary and its
34
respective directors, officers, employees, attorneys, experts, and agents
harmless from, any and all liabilities, costs and expenses (including,
without limitation, legal fees and expenses), losses or damages (i) with
respect to, or resulting from, any delay in paying, any and all excise,
sales or other taxes which may be payable or determined to be payable with
respect to any of the Mortgaged Property, (ii) with respect to, or resulting
from, any delay in complying with any requirement of law applicable to any
of the Mortgaged Property or (iii) in connection with any of the
transactions contemplated by this Deed of Trust, including the fees and
disbursements of counsel and of any other experts, which Beneficiary or its
respective directors, officers, employees, attorneys, experts or agents may
incur in connection with (w) the administration or enforcement of this Deed
of Trust, including such expenses as are incurred to preserve the value of
the Mortgaged Property and the validity, perfection, rank and value of any
liens granted hereunder, (x) the collection, sale or other disposition of
any of the Mortgaged Property, (y) the exercise by the Beneficiary of any of
the rights conferred upon it hereunder or (z) any Default or Event of
Default, but excluding any such liabilities, costs and expenses, losses or
damages incurred solely by reason of the gross negligence or willful
misconduct of the party seeking to be indemnified as determined by a final
order or judgment of a court of competent jurisdiction.
Any amount due hereunder which is not paid on demand shall bear
interest at a rate equal to the Default Rate and shall be a lien upon the
Mortgaged Property and shall be secured hereby.
The agreements of the Trustor contained in this Section 4.13 shall
survive the payment and performance of the Secured Obligations and the
termination of the liens and security interests granted hereby. All of the
Trustor's obligations to indemnify Beneficiary and its directors, officers,
employees, attorneys, experts and agents hereunder shall (without
duplication) be in addition to, and shall not limit in any way, the
Trustor's indemnification obligations contained in the Agreement or in any
other Loan Document.
Section 4.14 Advances under the Agreement. It is understood and
agreed that the funds to be advanced under this Deed of Trust are to be
advanced subject to and in accordance with the provisions of the Agreement
and the other Loan Documents, and that all sums advanced thereunder and
hereunder are included within the Secured Obligations secured hereby.
Section 4.15 Limitation of Trustee's Liability. Trustee shall be
protected in acting upon any notice, request, consent, demand, statement,
note or other paper or document believed by
35
Trustee to be genuine and to have been signed by the party or parties
purporting to sign the same. Trustee shall not be liable for any error of
judgment, nor for any act done or step taken or omitted, nor for any
mistakes of law or fact, nor for anything which Trustee may do or refrain
from doing in good faith, nor generally shall Trustee have any
accountability hereunder except for willful misconduct or gross negligence.
Trustee may act hereunder and may sell or otherwise dispose of the Mortgaged
Property or any part thereof as herein provided, although Trustee has been,
may now or may hereafter be, attorneys, officers, agents or employees of
Beneficiary, in respect of any matter of business whatsoever. Beneficiary
and Trustee shall not be liable for any loss to any Chattels in their
possession, provided that they shall use reasonable care with respect
thereto; and any such loss shall not diminish the debt due.
Section 4.16 Substitution of Trustee. Beneficiary shall have, and
is hereby granted with warranty of further assurances, the irrevocable power
to remove a Trustee or successor Trustee and to appoint a substitute Trustee
or Trustees hereunder (including, in case of death or refusal to act of a
Trustee or Trustees or their nonacceptance of, or dissatisfaction with,
Trustee, absence or any other reason), to appoint a new or replacement
substitute Trustee or Trustees, to be exercised at any time without notice
and without specifying any reason therefor, by filing for record in the
office where this instrument is recorded a Deed of Appointment or Notice of
Substitution of Trustee. The power of appointment of a successor Trustee or
Trustees may be exercised as often as and whenever Beneficiary may choose,
and the exercise of the power of appointment, no matter how often, shall not
be an exhaustion thereof. Upon the recordation of such Deed or Deeds of
Appointment or Notice or Notices of Substitution of Trustee, Trustee or
Trustees so appointed shall thereupon, without any further act or deed of
conveyance, become fully vested with identically the same title and estate
in and to the Mortgaged Property and with all the rights, powers, trusts and
duties of their, his or its predecessor in the trust hereunder with like
effect as if originally named as Trustee or as one of Trustees hereunder.
Whenever in this Deed of Trust reference is made to Trustee, it shall be
construed to mean Trustee or Trustees for the time being, whether original
or successors or successor in trust; and all title, estate, rights, powers,
trusts and duties hereunder given or appertaining to or devolving upon
Trustee shall be in each of Trustees so that any action hereunder or
purporting to be hereunder of any one of the original or any successor
Trustee shall for purposes be considered to be, and as effective as, the
action of all Trustees.
Section 4.16 Particular State Provisions. There is attached hereto
and made a part hereof Exhibit B containing additional provisions that are
necessary or appropriate under the
36
laws of the state where the Mortgaged Property is located or pursuant to the
provisions of any permitted property liens.
IN WITNESS WHEREOF, this Deed of Trust has been duly executed by
Trustor as of the day and year first above written.
TRUSTOR
PAYLESS CASHWAYS, INC.
By:_____________________________
Name:________________________
Title:_______________________
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EXHIBIT A
DESCRIPTION OF LAND
-------------------
38
EXHIBIT B
LOCAL LAW PROVISIONS
--------------------