EXHIBIT 10.43
This instrument prepared by and,
after recording, please return to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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TERM LOAN AND REVOLVING CREDIT DEED TO SECURE DEBT,
ASSIGNMENT OF LEASES AND SECURITY AGREEMENT
BY
▇▇▇▇▇▇ PRODUCTS COMPANY,
Grantor,
TO
CREDIT AGRICOLE INDOSUEZ,
as Collateral Agent,
Beneficiary
Relating to Premises in:
Savannah, Chatham County, Georgia
$75,000,000
Dated as of: November 6, 1997
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TABLE OF CONTENTS
Page
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INTRODUCTION............................................................................. 1
RECITALS................................................................................. 1
GRANTING CLAUSES......................................................................... 2
COVENANTS................................................................................ 5
ARTICLE I
WARRANTIES, REPRESENTATIONS AND COVENANTS OF GRANTOR..................................... 5
SECTION 1.1. Payment.................................................................. 5
SECTION 1.2. Authority and Validity................................................... 5
SECTION 1.3. Good Title............................................................... 6
SECTION 1.4. Recording Documentation To Assure
Security Interest; Fees and
Expenses.............................................................. 7
SECTION 1.5. Payment of Taxes, Insurance
Premiums, Assessments; Compliance
with Law and Insurance
Requirements.......................................................... 8
SECTION 1.6. Certain Tax Law Changes.................................................. 12
SECTION 1.7. Required Insurance Policies.............................................. 12
SECTION 1.8. Failure To Make Certain Payments......................................... 15
SECTION 1.9. Inspection............................................................... 16
SECTION 1.10. Grantor To Maintain Improvements......................................... 16
SECTION 1.11. Grantor's Obligations with Respect to Leases............................. 17
SECTION 1.12. Transfer Restrictions and Liens.......................................... 20
SECTION 1.13. Destruction; Condemnation................................................ 21
SECTION 1.14. Alterations.............................................................. 26
SECTION 1.15. Hazardous Material....................................................... 26
SECTION 1.16. Asbestos................................................................. 27
SECTION 1.17. Books and Records; Other Information..................................... 28
SECTION 1.18. No Claims Against Beneficiary............................................ 29
SECTION 1.19. Utility Services......................................................... 29
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ARTICLE II
ASSIGNMENT OF LEASES; SECURITY AGREEMENT;
ASSIGNMENT AGREEMENT................................................................... 30
SECTION 2.1. Assignment of Leases, Rents, Issues and Profits.......................... 30
SECTION 2.2. Security Interest in Fixtures............................................ 32
ARTICLE III
EVENTS OF DEFAULT AND REMEDIES........................................................... 33
SECTION 3.1. Events of Default........................................................ 33
SECTION 3.2. Remedies in Case of an Event of Default.................................. 33
SECTION 3.3. Sale of Mortgaged Property if Event
of Default Occurs; Proceeds of Sale................................... 35
SECTION 3.4. Additional Remedies in Case of an Event of Default....................... 38
SECTION 3.5. Legal Proceedings After an Event of Default.............................. 39
SECTION 3.6. Remedies Not Exclusive................................................... 41
ARTICLE IV
CERTAIN DEFINITIONS...................................................................... 41
ARTICLE V
MISCELLANEOUS............................................................................ 42
SECTION 5.1. Severability of Provisions............................................... 42
SECTION 5.2. Notices.................................................................. 42
SECTION 5.3. Covenants To Run with the Land........................................... 43
SECTION 5.4. Headings................................................................. 43
SECTION 5.5. Limitation on Interest Payable........................................... 43
SECTION 5.6. Governing Law; Submission to Jurisdiction; Venue......................... 44
SECTION 5.7. No Merger................................................................ 44
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SECTION 5.8. Modification in Writing.................................................. 44
SECTION 5.9. No Credit for Payment of Taxes or Impositions............................ 45
SECTION 5.10. Stamp and Other Taxes.................................................... 45
SECTION 5.11. Estoppel Certificates.................................................... 45
SECTION 5.12. Additional Security...................................................... 45
SECTION 5.13. Release.................................................................. 46
SECTION 5.14. Certain Expenses of Beneficiary.......................................... 46
SECTION 5.15. Expenses of Collection................................................... 47
SECTION 5.16. Business Days............................................................ 47
SECTION 5.17. Relationship............................................................. 47
SECTION 5.18. Reconveyance Upon Payment of Secured Obligations......................... 47
SECTION 5.19. Concerning Beneficiary................................................... 48
SECTION 5.20. Future Advances.......................................................... 49
SECTION 5.21. Waiver of Stay........................................................... 49
SECTION 5.22. Continuing Security Interest; Assignment................................. 50
SECTION 5.23. Obligations Absolute..................................................... 50
SECTION 5.24. Beneficiary's Right to Sever Indebtedness................................ 51
SIGNATURES
SCHEDULE A LEGAL DESCRIPTION
SCHEDULE B PRIOR LIENS
TERM LOAN AND REVOLVING CREDIT DEED TO SECURE DEBT,
ASSIGNMENT OF LEASES AND SECURITY AGREEMENT
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TERM LOAN AND REVOLVING CREDIT DEED TO SECURE DEBT, ASSIGNMENT OF
LEASES AND SECURITY AGREEMENT ("Deed to Secure Debt"), dated as of November 6,
1997, made by ▇▇▇▇▇▇ PRODUCTS COMPANY, a Delaware corporation, having an office
at ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, as grantor, assignor and debtor (in
such capacities and together with any successors in such capacities, "Grantor"),
to CREDIT AGRICOLE INDOSUEZ, having an office at 1211 Avenue of the ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as beneficiary, assignee and secured party
(in such capacities and together with any successors in such capacities,
"Beneficiary") as agent and collateral agent for the lending institutions (the
"Banks") from time to time party to the Credit Agreement (as hereinafter
defined).
R E C I T A L S :
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A. Pursuant to a certain credit agreement, dated as of the date
hereof (as amended, amended and restated, supplemented, or otherwise modified
from time to time, the "Credit Agreement"; capitalized terms used herein and not
defined shall have the meanings assigned to them in the Credit Agreement), among
▇▇▇▇▇▇, Inc., a Delaware corporation, Grantor, the Banks and Credit Agricole
Indosuez, as Agent and Collateral Agent for the Banks, the Banks have agreed (i)
to make to or for the account of Grantor certain Acquisition Term Loans up to an
aggregate principal amount of $50,000,000 that mature on the last Business Day
of October, 2005 and certain Revolving Loans up to an aggregate principal amount
of $25,000,000 that mature on the last Business Day of October, 2003 and (ii) to
issue certain Letters of Credit for the account of Grantor.
B. It is contemplated that Grantor may enter into one or more
agreements with one or more of the Banks ("Interest Rate Agreements") fixing the
interest rates with respect to Loans under the Credit Agreement (all obligations
of Grantor now existing or hereafter arising under such Interest Rate
Agreements, collectively, the "Interest Rate Obligations").
C. Grantor is the owner of the Mortgaged Property (as hereinafter
defined).
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D. It is a condition to the obligations of the Banks to make the
Loans under the Credit Agreement and a condition to any Bank issuing Letters of
Credit under the Credit Agreement or entering into the Interest Rate Agreements
that Grantor execute and deliver the applicable Credit Documents, including this
Deed to Secure Debt.
E. This Deed to Secure Debt is given by Grantor in favor of
Beneficiary for its benefit and the benefit of the Banks and Collateral Agent
(collectively, the "Secured Parties") to secure the payment and performance in
full when due, whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and other amounts which
would accrue and become due but for the filing of a petition in bankruptcy or
the operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. (S) 362(a)), of (i) all Obligations of Grantor now existing or
hereafter arising under the Credit Agreement and all Interest Rate Obligations
of Grantor now existing or hereafter arising under any Interest Rate Agreement
(including, without limitation, Grantor's obligation provided for therein to pay
principal, interest and all other charges, fees, expenses, commissions,
reimbursements, premiums, indemnities and other payments related to or in
respect of the Obligations contained in the Credit Agreement and the obligations
contained in any Interest Rate Agreement) and (ii) without duplication of the
amounts described in clause (i), all Obligations of Grantor now existing or
hereafter arising under this Deed to Secure Debt or any other Security Document,
including, without limitation, with respect to all charges, fees, expenses,
commissions, reimbursements, premiums, indemnities and other payments that
Grantor is obligated to pay under this Deed to Secure Debt or any other Security
Document (the obligations described in clauses (i) and (ii), collectively, the
"Secured Obligations").
G R A N T I N G C L A U S E S :
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For and in consideration of the sum of Ten Dollars ($10.00) and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor does hereby pledge, give, grant, sell, convey and transfer
to Beneficiary, its successors and assigns, with powers of sale, for the use and
benefit of Beneficiary, all Grantor's right, title and interest in and to the
following property, whether now owned or
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held or hereafter acquired (collectively, the "Mortgaged Property"):
A. Any and all present estates or interest of Grantor in the land
described in Schedule A, together with all Grantor's reversionary rights in and
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to any and all easements, rights-of-way, sidewalks, strips and gores of land,
drives, roads, curbs, streets, ways, alleys, passages, passageways, sewer
rights, waters, water courses, water rights, and all power, air, light and other
rights, estates, titles, interests, privileges, liberties, servitudes, licenses,
tenements, hereditaments and appurtenances whatsoever, in any way belonging,
relating or appertaining thereto, or any part thereof, or which hereafter shall
in any way belong, relate or be appurtenant thereto (collectively, the "Land");
B. Any and all estates or interests of Grantor in the buildings,
structures and other improvements and any and all Alterations (as hereinafter
defined) now or hereafter located or erected on the Land, including, without
limitation, attachments, walks and ways (collectively, the "Improvements";
together with the Land, the "Premises");
C. Any and all permits, certificates, approvals and authorizations,
however characterized, issued or in any way furnished in connection with the
Premises to the extent assignable, whether necessary or not for the operation
and use of the Premises, including, without limitation, building permits,
certificates of occupancy, environmental certificates, industrial permits or
licenses and certificates of operation;
D. Any and all interest of Grantor in all machinery, apparatus,
equipment, fittings, fixtures, improvements and articles of personal property of
every kind and nature whatsoever now or hereafter attached or affixed to the
Premises or used in connection with the use and enjoyment of the Premises or the
maintenance or preservation thereof, including, without limitation, all utility
systems, fire sprinkler and alarm systems, HVAC equipment, boilers, electronic
data processing, telecommunications or computer equipment, refrigeration,
electronic monitoring, water or lighting systems, power, sanitation, waste
removal, elevators, maintenance or other systems or equipment, and all other
articles used or useful in connection with the use or operation of any part of
the Premises, all to the extent the same constitute "fixtures" as such term is
de-
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fined in the UCC as in effect in the State of Georgia (collectively, the
"Equipment");
E. All Grantor's right, title and interest as landlord, licensor or
grantor, in all leases and subleases of space, licenses, occupancy or
concession agreements now existing or hereafter entered into relating in any
manner to the Premises or the Equipment and any and all amendments,
modifications, supplements and renewals of any thereof (each such lease, license
or agreement, together with any such amendment, modification, supplement or
renewal, a "Lease"), whether now in effect or hereafter coming into effect,
including, without limitation, all rents, additional rents, cash, guaranties,
letters of credit, bonds, sureties or securities deposited thereunder to secure
performance of the lessee's, licensee's or obligee's obligations thereunder,
revenues, earnings, profits and income, advance rental payments, payments
incident to assignment, sublease or surrender of a Lease, claims for forfeited
deposits and claims for damages, now due or hereafter to become due, with
respect to any Lease, any indemnification against, or reimbursement for, sums
paid and costs and expenses incurred by Grantor under any Lease or otherwise,
and any award in the event of the bankruptcy of any tenant under or guarantor of
a Lease (collectively, the "Rents");
F. All general intangibles and contract rights relating to the
Premises and the Equipment and all reserves, deferred payments, deposits,
refunds and claims of every kind or character relating thereto (collectively,
the "Contract Rights");
G. All drawings, plans, specifications, file materials, operating and
maintenance records, catalogues, tenant lists, correspondence, advertising
materials, operating manuals, warranties, guaranties, appraisals, studies and
data relating to the Premises or the Equipment or the construction of any
Alteration or the maintenance of any Permit (as hereinafter defined); and
H. 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 or other awards or payments and refunds
of real estate taxes and assessments, including interest thereon (collectively,
"Proceeds");
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TO HAVE AND TO HOLD the Mortgaged Property together with the rights,
privileges and appurtenances thereto belonging unto Beneficiary, for the benefit
of Beneficiary and Beneficiary's successors and assigns forever, for the purpose
of securing payment and performance by Grantor of the Secured Obligations, and
Grantor hereby binds itself and its successors and assigns to warrant and
forever defend the Mortgaged Property unto Beneficiary, its substitutes,
successors and assigns, as the case may be, against the claim or claims of all
persons claiming or to claim the same or any part thereof. This Deed to Secure
Debt is a deed passing legal title pursuant to the laws of the State of Georgia
governing loan or security deeds and security agreements and is not a mortgage
as such term is defined under such laws.
C O V E N A N T S :
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Grantor warrants, represents and covenants to and for the benefit of
Beneficiary as follows:
ARTICLE I
WARRANTIES, REPRESENTATIONS AND
COVENANTS OF GRANTOR
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SECTION 1.1. Payment. Grantor shall pay as and when the same shall
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become due, whether at its stated maturity, by acceleration or otherwise, each
and every amount payable by Grantor under the Credit Documents and the
Interest Rate Agreements.
SECTION 1.2. Authority and Validity. Grantor represents, warrants and
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covenants that (i) Grantor is duly authorized to execute and deliver this Deed
to Secure Debt, and all corporate and governmental consents, authorizations and
approvals necessary or required therefor have been duly and effectively taken or
obtained, (ii) this Deed to Secure Debt is a legal, valid, binding and
enforceable obligation of Grantor, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and except as such enforceability may be limited by
the application of general principles of equity (regardless of whether such
enforceability is considered
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in a proceeding in equity or at law) and (iii) Grantor has full corporate power
and lawful authority to execute and deliver this Deed to Secure Debt and to
convey and grant a security interest in the Mortgaged Property as contemplated
herein.
SECTION 1.3. Good Title.
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1.3.1 Grantor represents, warrants and covenants that (i) Grantor has
good and marketable fee simple title to the Premises and the landlord's interest
and estate under or in respect of the Leases and good title to the interest it
purports to own in and to each of the Permits, the Equipment and the Contract
Rights, in each case subject to no deed of trust, mortgage, deed to secure debt,
pledge, security interest, encumbrance, lien, lease, license, easement,
assignment, collateral assignment or charge of any kind, including, without
limitation, any conditional sale or other title retention agreement or lease in
the nature thereof, any filing or agreement to file a financing statement as
debtor under the Uniform Commercial Code or any similar statute or any
subordination arrangement in favor of any party other than Grantor
(collectively, "Liens"; each, a "Lien"), except for those Liens identified on
Schedule B hereto (collectively, the "Prior Liens"), (ii) Grantor will keep in
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effect all rights and appurtenances to or that constitute a part of the
Mortgaged Property the failure to maintain which would have a material adverse
effect upon the interests of Beneficiary under this Deed to Secure Debt or upon
the value of the Mortgaged Property (a "Material Adverse Effect"), (iii) Grantor
will protect, preserve and defend its interest in the Mortgaged Property and
title thereto, provided that the failure to preserve such interest would have a
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Material Adverse Effect, (iv) Grantor will comply with each of the terms,
conditions and provisions of any obligation of Grantor which is secured by the
Mortgaged Property, the noncompliance with which might reasonably be expected to
result in the imposition of a Lien on the Mortgaged Property, which Lien is not
permitted pursuant to the terms hereof, (v) Grantor will appear and defend the
Lien and security interests created and evidenced hereby and the validity and
priority of this Deed to Secure Debt (subject to Prior Liens) in any action or
proceeding affecting or purporting to affect the Mortgaged Property or any of
the rights of Beneficiary hereunder, (vi) this Deed to Secure Debt creates and
constitutes a valid and enforceable first Lien on the Mortgaged Property, which
first Lien is and will be subject only to (a) Prior Liens (but not to
extensions, amend-
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ments, supplements or replacements of Prior Liens unless consented to by
Beneficiary) and (b) Liens hereafter created and which, pursuant to the
provisions of Section 1.12, are superior to the Lien and security interests
created and evidenced hereby, and Grantor does now and will forever warrant and
defend to Beneficiary and all its successors and assigns such title and the
validity and priority of the Lien and security interests created and evidenced
hereby against the claims of all persons and parties whomsoever and (vii) there
has been issued and there remain in effect each and every certificate of
occupancy or use or other Permit currently required for the existing use and
occupancy by Grantor which if not obtained or maintained would have a Material
Adverse Effect.
1.3.2 Grantor, immediately upon obtaining actual knowledge of the
pendency of any proceedings for the eviction of Grantor from the Mortgaged
Property or any part thereof by paramount title or otherwise questioning
Grantor's title to the Mortgaged Property as warranted in this Deed to Secure
Debt, or of any condition that might reasonably be expected to give rise to any
such proceedings, shall notify Beneficiary thereof. Beneficiary may participate
in such proceedings, and Grantor will deliver or cause to be delivered to
Beneficiary all instruments reasonably requested by Beneficiary to permit such
participation. In any such proceedings Beneficiary may be represented by
counsel reasonably satisfactory to Beneficiary at the reasonable expense of
Grantor. If, upon the resolution of such proceedings, Grantor shall suffer a
loss of the Mortgaged Property or any part thereof or interest therein and title
insurance proceeds shall be payable in connection therewith, such proceeds are
hereby assigned to and shall be paid to Beneficiary to be applied to the payment
of the Secured Obligations in accordance with the provisions of Section
3.02(B)(a) of the Credit Agreement.
SECTION 1.4. Recording Documentation To Assure Security Interest;
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Fees and Expenses.
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1.4.1 Grantor shall, forthwith after the execution and delivery of
this Deed to Secure Debt and thereafter, from time to time, cause this Deed to
Secure Debt and any financing statement, continuation statement or similar
instrument relating to any thereof or to any property intended to be subject to
the Lien of this Deed to Secure Debt to be filed, registered and recorded in
such manner and in such places as may be re-
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quired by any present or future law in order to publish notice of and fully to
protect the validity and priority thereof or the Lien hereof purported to be
created upon the Mortgaged Property and the interest and rights of Beneficiary
therein. Grantor shall pay or cause to be paid all taxes and fees incident to
such filing, registration and recording, and all reasonable expenses incident to
the preparation, execution and acknowledgment thereof, and of any instrument of
further assurance, and all Federal or state stamp taxes or other taxes, duties
and charges arising out of or in connection with the execution and delivery of
such instruments.
1.4.2 Grantor shall, at the sole cost and expense of Grantor, do,
execute, acknowledge and deliver all and every such further acts, deeds,
conveyances, mortgages, assignments, notices of assignment, transfers, financing
statements, continuation statements and assurances as Beneficiary shall from
time to time reasonably request, which may be necessary in the reasonable
judgment of Beneficiary from time to time to assure, perfect, convey, assign,
mortgage, transfer and confirm unto Beneficiary, the property and rights hereby
conveyed or assigned or which Grantor may be or may hereafter become bound to
convey or assign to Beneficiary or for carrying out the intention or
facilitating the performance of the terms of this Deed to Secure Debt or the
filing, registering or recording of this Deed to Secure Debt. In the event
Grantor shall fail after demand to execute any instrument reasonably requested
to be executed by Grantor under this subsection 1.4.2, Beneficiary may execute
the same as the attorney-in-fact for Grantor, such power of attorney being
coupled with an interest and irrevocable.
SECTION 1.5. Payment of Taxes, Insurance Premiums, Assessments;
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Compliance with Law and Insurance Requirements.
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1.5.1 Unless and to the extent contested by Grantor in accordance
with the provisions of subsection 1.5.5 hereof, Grantor shall pay and discharge,
or cause to be paid and discharged, from time to time prior to the date on which
material penalties attach thereto, all real estate and other material taxes,
special assessments, levies, permits, inspection and license fees, all premiums
for insurance, all water and sewer rents and charges and all other public
charges imposed upon or assessed against or in respect of the Mortgaged Property
or any part thereof or upon the Rents. Grantor shall, upon Benefici-
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ary's reasonable request, deliver to Beneficiary, receipts evidencing the
payment of all such taxes, assessments, levies, fees, rents and other public
charges imposed upon or assessed against the Mortgaged Property or any part
thereof or the Rents.
1.5.2 From and after the occurrence and during the continuance of an
Event of Default (as hereinafter defined), at the option and upon the request of
Beneficiary, Grantor shall deposit with Beneficiary, on the first day of each
month, an amount estimated by Beneficiary to be equal to one-twelfth of the
annual taxes, assessments and other items required to be discharged by Grantor
under subsection 1.5.1. Such amounts shall be held by Beneficiary without
interest to Grantor and applied to the payment of the obligations in respect of
which such amounts were deposited, in such priority as Beneficiary shall
determine, on or before the respective dates on which such obligations or any
part thereof would become delinquent. Nothing contained in this Section 1.5
shall (i) affect any right or remedy of Beneficiary under any provision of this
Deed to Secure Debt or of any statute or rule of law following an Event of
Default to pay any such amount as provided above from its own funds and to add
the amount so paid, together with interest at a rate per annum (the "Default
Rate") equal to the highest rate then payable under the Credit Agreement during
such time that any amount remains outstanding, to the Secured Obligations or
(ii) relieve Grantor of its obligations to make or provide for the payment of
the annual taxes, assessments and other charges required to be discharged by
Grantor under subsection 1.5.1. Grantor hereby grants to Beneficiary a security
interest in all sums held pursuant to this subsection 1.5.2 to secure payment
and performance of the Secured Obligations. During the continuance of any Event
of Default, Beneficiary may, at its option, apply all or any part of the sums
held pursuant to this subsection 1.5.2 to payment and performance of the Secured
Obligations. Grantor shall redeposit with Beneficiary an amount equal to all
amounts so applied as a condition to the cure, if any, of such Event of Default
in addition to fulfillment of any other required conditions.
1.5.3 Unless and to the extent contested by Grantor in accordance
with the provisions of subsection 1.5.5, Grantor shall timely pay, or cause to
be paid, all lawful claims and demands of mechanics, materialmen, laborers,
government agencies administering worker's compensation insurance, old age
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pensions and social security benefits and all other claims, judgments, demands
or amounts of any nature which, if unpaid, might reasonably be expected to
result in, or permit the creation of, a Lien on the Mortgaged Property or any
part thereof, or on the Rents (other than Liens permitted pursuant to the terms
hereof) or which might reasonably be expected to result in forfeiture of all or
any part of the Mortgaged Property.
1.5.4 Grantor shall maintain, or cause to be maintained, in full
force and effect all permits, certificates, authorizations, consents, approvals,
licenses, franchises or other instruments now or hereafter required by any
Governmental Authority to operate or use and occupy the Premises and the
Equipment in the manner and for the purposes operated by Grantor, or which
Grantor otherwise deems necessary or appropriate in its commercially reasonable
judgment (collectively, "Permits"; each, a "Permit"), except where the failure
to maintain such Permit would not reasonably be expected to have a Material
Adverse Effect. Unless and to the extent contested by Grantor in accordance
with the provisions of subsection 1.5.5 hereof, Grantor shall comply with all
material requirements set forth in the Permits and all requirements of any law,
ordinance, rule, regulation or similar statute or case law (collectively,
"Requirements of Law") of any Governmental Authority applicable to all or any
part of the Mortgaged Property or the condition, use or occupancy of all or any
part thereof or any recorded deed of restriction, declaration, covenant running
with the land or otherwise, now or hereafter in force, except where the failure
to comply with such Requirements of Law would not reasonably be expected to have
a Material Adverse Effect. Grantor shall not initiate, join in, or consent to
any change in the zoning or any other permitted use classification of the
Premises without the prior written consent of Beneficiary, which consent will
not be unreasonably withheld or delayed.
1.5.5 Grantor may at its own expense contest the amount or
applicability of any of the obligations described in subsections 1.5.1, 1.5.3 or
1.5.4 by appropriate legal proceedings, prosecution of which operates to prevent
the collection or enforcement thereof and the sale or forfeiture of the
Mortgaged Property or any part thereof to satisfy such obligations; provided,
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however, that in connection with such contest, Grantor shall have made provision
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for the payment or performance of such contested obligation on Grantor's books
if and to the ex-
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tent required by GAAP. Notwithstanding the foregoing provisions of this
subsection 1.5.5, (i) no contest of any such obligations may be pursued by
Grantor if such contest would expose Beneficiary or any Bank to any possible
criminal liability or, unless Grantor shall have furnished a bond or other
security therefor reasonably satisfactory to Beneficiary or such Bank, as the
case may be, any additional civil liability for failure to comply with such
obligations and (ii) if at any time payment or performance of any obligation
contested by Grantor pursuant to this subsection 1.5.5 shall become necessary to
prevent the delivery of a tax or similar deed conveying the Mortgaged Property
or any portion thereof because of nonpayment or nonperformance, Grantor shall
pay or perform the same, in sufficient time to prevent the delivery of such tax
or similar deed or such termination or forfeiture.
1.5.6 Grantor shall not take any action that could be the basis for
termination, revocation or denial of any insurance coverage required to be
maintained under this Deed to Secure Debt or that could be the basis for a
defense to any claim under any insurance policy maintained in respect of the
Premises or the Equipment and Grantor shall otherwise comply in all respects
with the requirements of any insurer that issues a policy of insurance in
respect of the Premises or the Equipment; provided, however, that Grantor may,
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at its own expense and after notice to Beneficiary, (i) contest the
applicability or enforceability of any such requirements by appropriate legal
proceedings, prosecution of which does not constitute a basis for cancellation
or revocation of any insurance coverage required under Section 1.7 hereof or
(ii) cause the insurance policy containing any such requirement to be replaced
by a new policy complying with the provisions of Section 1.7.
1.5.7 Grantor shall, promptly upon receipt of any written notice
regarding any failure by Grantor to pay or discharge any of the obligations
described in subsection 1.5.1, 1.5.3, 1.5.4 or 1.5.6, furnish a copy of such
notice to Beneficiary.
1.5.8 In the event that the proceeds of any tax claim are paid after
Beneficiary has exercised its right to foreclose the Lien of this Deed to Secure
Debt, such proceeds shall be paid to Beneficiary to satisfy any deficiency
remaining after such foreclosure. Beneficiary shall retain its interest in the
proceeds of any tax claim during any redemption
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period. The amount of any such proceeds in excess of any deficiency claim of
Beneficiary shall reasonably promptly be released to Grantor.
SECTION 1.6. Certain Tax Law Changes. In the event of the passage
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after the date of this Deed to Secure Debt of any law deducting from the value
of real property, for the purpose of taxation, amounts in respect of any Lien
thereon or changing in any way the laws for the taxation of mortgages or debts
secured by mortgages for state or local purposes or the manner of the collection
of any such taxes (excluding therefrom taxes on income), and imposing a tax,
either directly or indirectly, on this Deed to Secure Debt, any Interest Rate
Agreement or any other Credit Document that is payable by Beneficiary, Grantor
shall promptly pay to Beneficiary such amount or amounts as may be necessary
from time to time to pay such tax.
SECTION 1.7. Required Insurance Policies.
---------------------------
1.7.1 Grantor shall maintain in respect of the Premises and the
Equipment the following insurance coverages:
(i) Physical hazard insurance on an "all risk" basis covering,
without limitation, hazards commonly covered by fire and extended coverage,
lightning, windstorm, civil commotion, hail, riot, strike, water damage,
sprinkler leakage, collapse and malicious mischief, in an amount equal to
the full replacement cost of the Improvements and all Equipment, with such
deductibles as Beneficiary may from time to time reasonably require, and,
if Beneficiary shall not have imposed any such requirements, with such
deductibles as would be maintained by a prudent operator of property
similar in use and configuration to the Premises and located in the
locality where the Premises are located. "Full replacement cost" means the
Cost of Construction (as hereinafter defined) to replace the Improvements
and the Equipment, exclusive of depreciation, excavation, foundation and
footings, as determined from time to time (but not less frequently than
once every twelve (12) months) by a Person selected by Grantor and
reasonably acceptable to Beneficiary, such determination to be based upon
the appraisals delivered to Beneficiary pursuant to Section 4.01(L)(iii) of
the Credit Agreement, with appropriate updates for capitalized additions,
deletions, industry trends and other factors;
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(ii) Comprehensive general liability insurance against claims for
bodily injury, death or property damage occurring on, in or about the
Premises and any adjoining streets, sidewalks and passageways, and covering
any and all claims, including, without limitation, all legal liability to
the extent insurable imposed upon Beneficiary and all court costs and
attorneys' fees, arising out of or connected with the possession, use,
leasing, operation or condition of the Premises with policy limits and
deductibles in such amounts as Beneficiary may from time to time reasonably
require, and, if Beneficiary shall not have imposed any such requirements,
in such amounts as from time to time would be maintained by a prudent
operator of property similar in use and configuration to the Premises and
located in the locality where the Premises are located;
(iii) Worker's compensation insurance as required by the laws of
the state where the Premises are located to protect Grantor against claims
for injuries sustained in the course of employment at the Premises;
(iv) Explosion insurance in respect of any boilers and similar
apparatus located on the Premises or comprising any Equipment, with policy
limits and deductibles in such amounts as Beneficiary may from time to time
reasonably require, and, if Beneficiary shall not have imposed any such
requirements, in such amounts as would be maintained by a prudent operator
of property similar in use and configuration to the Premises and the
Equipment and located in the locality where the Premises and Equipment are
located;
(v) Business interruption insurance and/or "loss of rents"
insurance covering one year of loss, the term "loss of rents" to mean the
total estimated gross rental income from tenant occupation of the
Improvements as furnished and equipped under Leases;
(vi) If the Premises are located in an area identified by the
Federal Emergency Management Agency as an area having special flood hazards
pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster
Protection Act of 1973, each as amended pursuant to the National Flood
Insurance Reform Act of 1994 or otherwise, or any successor laws, flood
insurance with policy limits and de-
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ductibles in such amounts as Beneficiary may from time to time reasonably
require, and, if Beneficiary shall not have imposed any such requirements,
in such amounts as would be maintained by a prudent operator of property
similar in use and configuration to the Premises and located in the
locality where the Premises are located; and
(vii) Such other insurance, against such risks and with policy
limits and deductibles in such amounts as Beneficiary may from time to time
reasonably require, and, if no such requirements shall have been imposed,
in such amounts as would be maintained by a prudent operator of property
similar in use and configuration to the Premises and located in the
locality where the Premises are located.
1.7.2 All insurance policies required by this Section 1.7 shall be in
form reasonably satisfactory to Beneficiary. All insurance policies in respect
of the coverages required by subsections 1.7.1(i), 1.7.1(iv), 1.7.1(v),
1.7.1(vi) and, if applicable, 1.7.1(vii), shall be in amounts at least
sufficient to prevent coinsurance liability, and all losses thereunder shall be
payable to Beneficiary, as loss payee, pursuant to a standard non-contributory
New York mortgagee endorsement. All insurance policies in respect of the
coverages required by subsections 1.7.1(ii) and, if applicable, 1.7.1(vii) shall
name Beneficiary as an additional insured. Each policy of insurance required
under this Section 1.7 shall provide that it may not be modified, reduced,
cancelled or otherwise terminated without at least thirty (30) days' prior
written notice to Beneficiary and shall permit Beneficiary to pay any premium
therefor within thirty (30) days after receipt of any notice stating that such
premium has not been paid when due. All insurance policies required hereunder
shall provide that all losses thereunder shall be payable notwithstanding any
act or negligence of Grantor or its agents or employees which otherwise might
have resulted in a forfeiture of all or a part of such insurance payments. The
policy or policies of such insurance or certificates of insurance evidencing the
required coverages, and all renewals or extensions thereof, shall be delivered
to Beneficiary on the Closing Date. Settlement of any claim under any of the
insurance policies referred to in this Section 1.7, if such claim involves (in
the reasonable judgment of Beneficiary) loss in excess of $500,000 or more,
shall require the prior written approval of Beneficiary, which approval
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shall not be unreasonably withheld or delayed, and Grantor shall use reasonable
efforts to cause each such policy to contain a provision to such effect.
1.7.3 At least ten (10) days prior to the expiration of any insurance
policy required by this Section 1.7, a policy or policies renewing or extending
such expiring policy or renewal or extension certificates or other reasonable
evidence of renewal or extension and reasonable evidence that the applicable
policies are in full force and effect shall be delivered to Beneficiary.
1.7.4 Grantor shall not purchase separate insurance policies
concurrent in form or contributing in the event of loss with those policies
required to be maintained under this Section 1.7, unless (to the extent such
coverage may be obtained under applicable law) Beneficiary is included thereon
as a named insured and, if applicable, with loss payable to Beneficiary under an
endorsement containing the provisions described in subsection 1.7.2. Grantor
shall immediately notify Beneficiary whenever any such separate insurance policy
is obtained and shall promptly deliver to Beneficiary the policy or certificate
evidencing such insurance.
1.7.5 Grantor shall, immediately upon receipt of any written notice
of any failure by Grantor to pay any insurance premium in respect of any
insurance policy required to be maintained under this Section 1.7, furnish a
copy of such notice to Beneficiary.
1.7.6 In the event that the proceeds of any insurance claim are paid
after Beneficiary has exercised its right to foreclose the Lien of this Deed to
Secure Debt, such proceeds shall be paid to Beneficiary to satisfy any
deficiency remaining after such foreclosure. Beneficiary shall retain its
interest in the policies of insurance required to be maintained pursuant to this
Deed to Secure Debt during any redemption period. The amount of any such
proceeds in excess of any deficiency claim of Beneficiary shall reasonably
promptly be released to Grantor.
SECTION 1.8. Failure To Make Certain Payments. If Grantor shall
--------------------------------
fail to perform any of the covenants contained in this Deed to Secure Debt,
including, without limitation, Grantor's covenants to (i) pay the premiums in
respect of all required insurance coverages, (ii) pay taxes and assessments,
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(iii) make repairs, (iv) discharge liens and encumbrances or (v) pay or perform
any obligations of Grantor under the Leases, Beneficiary may, following five (5)
Business Days' prior written notice by Beneficiary to Grantor of its intent to
do so during which time Grantor shall not have remedied such failure, but shall
not be obligated to, make advances to perform such covenant on Grantor's behalf,
and all sums so advanced shall be included in the Secured Obligations and, to
the extent permitted by applicable law, shall be secured hereby. Grantor shall
repay on demand all sums so advanced by Beneficiary on behalf of Grantor, with
interest at the Default Rate from the date of payment by Beneficiary to the date
of reimbursement. Neither the provisions of this Section 1.8 nor any action
taken by Beneficiary pursuant to the provisions of this Section 1.8 shall
prevent any such failure to observe any covenant contained in this Deed to
Secure Debt from constituting an Event of Default. Beneficiary shall not be
bound to inquire into the validity of any tax, lien or imposition which Grantor
fails to pay as and when required hereby and which Grantor does not contest in
accordance with the terms hereof.
SECTION 1.9. Inspection. Grantor shall, upon reasonable prior
----------
notice by Beneficiary to the chief financial officer, controller or any other
Authorized Officer of Grantor, permit Beneficiary, by its agents, accountants
and attorneys, to visit and inspect the Premises at such reasonable times during
regular business hours and intervals and to such reasonable extent as may be
reasonably requested by Beneficiary.
SECTION 1.10. Grantor To Maintain Improvements. Grantor shall not
--------------------------------
commit or suffer any waste on the Premises or with respect to any Equipment.
Grantor represents and warrants that (i) the Premises are served by all
utilities required or necessary for the current use thereof and (ii) Grantor has
access to the Premises from public roads sufficient to allow Grantor and its
tenants and invitees to conduct its and their businesses at the Premises in
accordance with sound commercial practices. Grantor shall, at all times,
exercise commercially reasonable efforts to maintain the Premises and Equipment
in good repair, working order and insurable condition (subject to normal wear
and tear) and shall make all repairs, structural or nonstructural, which Grantor
deems appropriate in its commercially reasonable judgment, when necessary.
Grantor shall (a) not alter the occupancy or use of all or any part of the
Premises on which Grantor is conducting its business without
-17-
the prior written consent of Beneficiary, which consent shall not be
unreasonably withheld or delayed, and (b) do all other reasonable acts which
from the character or use of the Premises and Equipment may, in the commercially
reasonable opinion of Grantor, be necessary or appropriate to maintain and
preserve their value. Grantor shall not remove, demolish or alter the structural
character of any Improvement now or hereafter erected upon all or any part of
the Premises, or permit any such removal, demolition or alteration, without the
prior written consent of Beneficiary, which consent shall not be unreasonably
withheld or delayed, except that items constituting Equipment may be removed if
such removal is temporary and for the purpose of making repairs or such items
are immediately replaced with similar items of Equipment having a value and
utility for their intended purposes that is not less than the value and such
utility of the Equipment so removed or if in the commercially reasonable opinion
of Grantor such Equipment is not necessary for the use or operation of the
Premises, and except as permitted pursuant to Section 7.13 of the Credit
Agreement.
SECTION 1.11. Grantor's Obligations with Respect to Leases.
--------------------------------------------
1.11.1 Subject to the provisions of subsection 1.11.2 herein, Grantor
will manage and operate the Mortgaged Property in a reasonably prudent manner
and will not without the prior written consent of Beneficiary, which consent
shall not be unreasonably withheld or delayed, enter into any Lease of all or
any part of the Premises, other than a Lease to an Affiliate of Grantor (which
will not require the consent of Beneficiary), which (i) interferes with the
operation of Grantor's business on the Premises, (ii) might reasonably be
expected to have a Material Adverse Effect on the value of the Premises or (iii)
is for space in excess of 10,000 square feet (each, a "Material Lease").
1.11.2 Grantor shall not:
(i) receive or collect, or permit the receipt or collection of, any
rental or other payments under any Material Lease more than one month in
advance of the respective period in respect of which they are to accrue,
except that (a) in connection with the execution and delivery of any Lease
or of any amendment to any Lease, rental payments thereunder may be
collected and received in advance
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in an amount not in excess of one month's rent and/or a reasonable security
deposit may be required thereunder and (b) Grantor may receive and collect
escalation and other charges in accordance with the terms of each Lease;
(ii) assign, transfer or hypothecate (other than to Beneficiary
hereunder) any rental or other payment under any Lease whether then due or
to accrue in the future, the interest of Grantor as lessor under any Lease
or the rents, issues, revenues, profits or other income of the Mortgaged
Property;
(iii) enter into any Lease after the date hereof that does not
contain terms to the effect as follows:
(a) such Lease and the rights of the tenant thereunder
(including, without limitation, any options to purchase or rights of
first offer or refusal) shall be subject and subordinate to the rights
of Beneficiary under and the Lien of this Deed to Secure Debt;
(b) such Lease has been assigned as collateral security by
Grantor as landlord thereunder to Beneficiary under this Deed to
Secure Debt;
(c) in the case of any foreclosure hereunder, the rights and
remedies of the tenant in respect of any obligations of any successor
landlord thereunder shall be limited to the equity interest of such
successor landlord in the Premises and any successor landlord shall
not (1) be liable for any act, omission or default of any prior
landlord under the Lease, (2) be required to make or complete any
tenant improvements or capital improvements or repair, restore,
rebuild or replace the demised premises or any part thereof in the
event of damage, casualty or condemnation or (3) be required to pay
any amounts to tenant arising under the Lease prior to such successor
landlord taking possession;
(d) the tenant's obligation to pay rent and any additional
rent shall not be subject to any abatement, deduction, counterclaim or
setoff as against any mortgagee or purchaser upon the foreclosure of
any of the Premises or the giving or granting of a
-19-
deed in lieu thereof by reason of a landlord default occurring prior
to such foreclosure and such mortgagee or purchaser will not be bound
by any advance payments of rent in excess of one month or any security
deposits unless such security was actually received (or in the case of
a letter of credit, was properly transferred in negotiable form);
(e) the tenant agrees to attorn, at the option of Beneficiary
or any purchaser of the Premises, upon a foreclosure of the Premises
or the giving or granting of a deed in lieu thereof; and
(f) the tenant agrees to give notice to Beneficiary of any
default by landlord under the Lease and Beneficiary shall have a
reasonable time to cure, should Beneficiary so elect, any default of
landlord prior to tenant exercising any rights of tenant to terminate
or cancel such Lease.
(iv) enter into any amendment or modification of any Material Lease
which would change the unexpired term thereof or decrease the amount of the
rents or other amounts payable thereunder or materially impair the value
or utility of the Mortgaged Property or impair the security provided by
this Deed to Secure Debt;
(v) enter into any further lease or sublease of the property
subject to any Material Lease without the prior written consent of
Beneficiary, which consent shall not be unreasonably withheld or delayed,
unless such Material Lease is not amended in any material respect and the
primary obligor under such Material Lease is not released in any material
respect from its material responsibilities and liabilities under such
Material Lease as a result of such lease or sublease;
(vi) terminate (whether by exercising any contractual right of
Grantor to recapture leased space or otherwise) or permit the termination
of any Material Lease or accept surrender of all or any portion of the
space demised under any Material Lease prior to the end of the term thereof
or accept assignment of any Material Lease to Grantor unless:
-20-
(a) the tenant under such Lease has not paid the equivalent of
two (2) months' rent and Grantor has made reasonable efforts to
collect such rent; or
(b) Grantor shall deliver to Beneficiary an Officer's
Certificate to the effect that Grantor has entered into a new Lease
(or Leases) for the space covered by the terminated or assigned Lease
with a term (or terms) which expire(s) no earlier than the date on
which the terminated or assigned Lease was to expire (excluding
renewal options), and with a tenant (or tenants) having a
creditworthiness (as reasonably determined by Grantor) sufficient to
pay the rent and other charges due under the new Lease (or Leases),
and the tenant(s) shall have commenced paying rent, including all
operating expenses and other amounts payable under the new Lease (or
Leases) without any abatement or concession; or
(vii) waive, excuse, condone or in any manner discharge or release
any tenants of or from the material obligations of such tenants under their
respective Leases or guarantors of tenants from material obligations under
any guarantees of the Leases except in the ordinary and prudent course of
business with due regard for the security afforded Beneficiary thereby.
1.11.3 Grantor shall timely perform and observe all the material
terms, covenants and conditions required to be performed and observed by Grantor
under each Lease and shall at all times do all things reasonably necessary to
require performance by the lessee, franchisee, licensee or grantee under each
Lease of all obligations, covenants and agreements by such party to be performed
thereunder. Grantor shall promptly notify Beneficiary of the receipt of any
notice from any lessee under any Lease claiming that Grantor is in default in
the performance or observance of any of the terms, covenants or conditions
thereof to be performed or observed by Grantor and will cause a copy of each
such notice to be promptly delivered to Beneficiary.
SECTION 1.12. Transfer Restrictions and Liens. Except as provided
-------------------------------
in Section 1.11 and as permitted pursuant to Section 7.13 of the Credit
Agreement, Grantor may not, without the prior written consent of Beneficiary,
further mortgage, en-
-21-
▇▇▇▇▇▇, hypothecate, sell, convey or assign all or any part of the Mortgaged
Property or suffer any of the foregoing to occur by operation of law or
otherwise. Notwithstanding the provisions of the foregoing sentence, so long as
no Event of Default shall have occurred and be continuing, Grantor shall have
the right to suffer, in respect of the Mortgaged Property, (i) the Liens in
respect of amounts payable or obligations to be performed by Grantor pursuant to
subsections 1.5.1, 1.5.3 and 1.5.4, provided, however, that such amounts are not
yet delinquent or are being contested in accordance with the provisions of
subsection 1.5.5 and (ii) Liens of the type described in paragraphs (c), (e),
(f), (g) and (i) of the definition of Permitted Encumbrances. Each of the Liens
and other transfers permitted by this Section 1.12 shall in all respects be
subject and subordinate in priority to the Lien and security interests created
and evidenced hereby except to the extent the law or regulation creating or
authorizing such Lien provides that such Lien must be superior to the Lien and
security interest created and evidenced hereby.
SECTION 1.13. Destruction; Condemnation.
-------------------------
1.13.1 Destruction; Insurance Proceeds. If there shall occur any
-------------------------------
damage to, or loss or destruction of, the Improvements, Equipment, or any part
of any thereof (each, a "Destruction"), Grantor shall promptly send to
Beneficiary a notice setting forth the nature and extent of such Destruction.
The proceeds of any insurance payable in respect of such Destruction are hereby
assigned and shall be paid to Beneficiary, provided that Grantor shall be
--------
entitled to retain the proceeds of any insurance payable in respect of a
Destruction to the extent that the aggregate amount of any such insurance
proceeds received by Grantor in such fiscal year when added to the aggregate of
any award or payment in respect of any Taking (as hereinafter defined) received
by Grantor in such fiscal year does not exceed $500,000. All such proceeds,
together with any interest earned thereon, less the amount of any expenses
incurred in litigating, arbitrating, compromising or settling any claim arising
out of such Destruction (the "Net Proceeds"), shall be applied in accordance
with the provisions of subsections 1.13.3, 1.13.4 and 1.13.5.
1.13.2 Condemnation; Assignment of Award. If there shall occur any
---------------------------------
taking of the Mortgaged Property or any part thereof, in or by condemnation or
other eminent domain proceed-
-22-
ings pursuant to any law, general or special, or by reason of the temporary
requisition of the use or occupancy of the Mortgaged Property or any part
thereof, by any Governmental Authority, civil or military (each, a "Taking"),
Grantor shall promptly notify Beneficiary upon receiving notice of such Taking
or commencement of proceedings therefor. Beneficiary may participate in any
proceedings or negotiations which might result in any Taking, and Grantor shall
deliver or cause to be delivered to Beneficiary all instruments requested by it
to permit such participation. Beneficiary may be represented by counsel
reasonably satisfactory to it at the reasonable expense of Grantor in connection
with any such participation. Grantor shall pay all reasonable fees, costs and
expenses incurred by Beneficiary in connection with any Taking and in seeking
and obtaining any award or payment on account thereof. Any proceeds, award or
payment in respect of any Taking are hereby assigned and shall be paid to
Beneficiary, provided that Grantor shall be entitled to the award or payment
--------
payable in respect of a Taking to the extent that the aggregate amount of any
such award received by Grantor in such fiscal year when added to the aggregate
of any insurance proceeds in respect of any Destruction received by Grantor in
such fiscal year does not exceed $500,000. Grantor shall take all steps
necessary to notify the condemning authority of such assignment. Such proceeds,
award or payment, together with any interest earned thereon, less the amount of
any expenses incurred in litigating, arbitrating, compromising or settling any
claim arising out of such Taking (the "Net Award"), shall be applied in
accordance with the provisions of subsections 1.13.3, 1.13.4 and 1.13.5.
1.13.3 Restoration. So long as no Event of Default shall have
-----------
occurred and be continuing, in the event there shall be a Net Award or Net
Proceeds in an amount less than or equal to $1,000,000, Grantor shall have the
right, at Grantor's option, to apply such Net Award or Net Proceeds as Net Cash
Proceeds in accordance with the provisions of Section 3.02(B)(a) of the Credit
Agreement or to perform a restoration (each, a "Restoration") of the Premises
and Equipment. In the event Grantor elects to perform any Restoration
contemplated by this subsection 1.13.3, Beneficiary shall release such Net Award
or Net Proceeds to Grantor as soon as practicable. Grantor shall promptly
following the date of its receipt of any proceeds in respect of a Destruction or
Taking, as the case may be, commence and diligently continue to perform the
Restoration in accordance with Section 3.02(A)(h) of the Credit Agreement
-23-
(subject to extensions for delays caused by reason of force majeure) of that
portion or portions of the Improvements and Equipment subject to such
Destruction or affected by such Taking so that, upon the completion of the
Restoration, the Premises and Equipment will be in substantially the same
condition and shall be as near as practicable to the value and utility as the
Premises and Equipment was immediately prior to such Destruction or Taking.
Grantor shall so complete such Restoration with its own funds to the extent that
the amount of any Net Award or Net Proceeds is insufficient for such purpose.
1.13.4 Major Restoration. In the event there shall be a Net Award or
-----------------
Net Proceeds other than as described in subsection 1.13.3, Grantor shall have
the option to apply such Net Award or Net Proceeds, as the case may be, as Net
Cash Proceeds in accordance with the provisions of Section 3.02(B)(a) of the
Credit Agreement or to require a Restoration of the Mortgaged Property. In the
event a Restoration is to be performed under this subsection 1.13.4, Beneficiary
shall not release any part of the Net Award or the Net Proceeds except in
accordance with the provisions of subsection 1.13.5, and Grantor shall, prior to
commencing any work to effect a Restoration of the Premises and Equipment,
promptly (but in no event later than ninety (90) days following any Destruction
or Taking) furnish to Beneficiary:
(i) complete plans and specifications (the "Plans and
Specifications") for the Restoration;
(ii) a certificate (an "Architect's Certificate") of an
independent, reputable architect or engineer reasonably acceptable to
Beneficiary and licensed in the state where the Premises is located (a)
listing all permits and approvals required by law in connection with the
Restoration, (b) stating that all permits and approvals required by law to
commence work in connection with the Restoration have been obtained, (c)
stating that the Plans and Specifications have been reviewed and approved
by the signatory thereto, (d) stating such signatory's estimate (an
"Estimate") of the costs of completing the Restoration and (e) stating that
upon completion of such Restoration in accordance with the Plans and
Specifications, the value and utility of the Premises and the Equipment
will be approximately equal to or greater than the value and utility
-24-
thereof immediately prior to the Destruction or Taking relating to such
Restoration; and
(iii) if the Estimate exceeds the Net Proceeds or Net Award, as
the case may be, a surety bond for, guarantee of, or irrevocable letter of
credit (a "Letter of Credit") or other irrevocable and unconditional
commitment to provide funds (each, a "Commitment") for the payment of the
excess cost of such Restoration, payable to or in favor of Beneficiary, as
Collateral Agent, which bond, guaranty, Letter of Credit or Commitment (A)
shall be signed by a surety or sureties or guarantor(s), as the case may
be, reasonably acceptable to Beneficiary and, in the case of a Letter of
Credit or Commitment, shall be provided by a bank or other financial
institution having capital and surplus in excess of $250 million as shown
in its most recent available statement of financial condition and (B) shall
be in an amount not less than the excess of the amount of the Estimate over
the amount of the Net Award or Net Proceeds, as the case may be, then held
by Beneficiary for application toward the cost of such Restoration.
Beneficiary shall have the right to review and approve the Plans and
Specifications as to structural matters only, such review and approval not to be
unreasonably withheld or delayed. Promptly upon any approval of the Plans and
Specifications by Beneficiary, Grantor shall commence and diligently continue to
perform the Restoration in accordance with such approved Plans and
Specifications. Grantor shall so complete such Restoration with its own funds
to the extent that the amount of any Net Award or Net Proceeds is insufficient
for such purpose.
1.13.5 Restoration Advances Following Destruction or Taking of
-------------------------------------------------------
Mortgaged Property. In the event Grantor shall elect to perform a Restoration
------------------
of the Premises and Equipment as provided in subsection 1.13.4, Beneficiary
shall apply any Net Proceeds or the Net Award held by Beneficiary on account of
the applicable Destruction or Taking to the payment of the cost of performing
such Restoration and shall pay portions of the same, from time to time, to
Grantor or, at Beneficiary's option, exercised from time to time, directly to
the contractors, subcontractors, materialmen, laborers, engineers, architects,
and other persons rendering services or material for such Restoration, subject
to the following conditions:
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(i) Each request for payment shall be made on at least ten (10)
days' prior notice to Beneficiary and shall be accompanied by an
Architect's Certificate stating (a) that all the Restoration work then
completed has been done in compliance with the Plans and Specifications, as
approved by Beneficiary, and in accordance with all provisions of law, (b)
the sums requested are required to reimburse Grantor for payments by
Grantor to, or are due to, the contractors, subcontractors, materialmen,
laborers, engineers, architects, or other persons rendering services or
materials for the Restoration, and that, when added to the sums, if any,
previously paid out by Beneficiary, such sums do not exceed the cost of the
Restoration to the date of such Architect's Certificate, (c) whether or not
the Estimate continues to be accurate, and if not, what the entire cost of
such Restoration is then estimated to be and (d) that the amount of the Net
Proceeds or Net Award, as the case may be, remaining after giving effect to
such payment will be sufficient on completion of the Restoration to pay for
the same in full (including, in detail, an estimate by trade of the
remaining costs of completion);
(ii) Each request for payment shall be accompanied by an opinion of
counsel to Grantor (which counsel shall be independent and reasonably
acceptable to Beneficiary) or a title insurance policy, binder or
endorsement in form and substance reasonably satisfactory to Beneficiary
confirming that (a) all Liens (other than Prior Liens and Liens otherwise
permitted hereunder) covering that part of the Restoration previously paid
for, if any, have been waived and (b) there has not been filed with respect
to all or any part of the Premises any Lien (other than Prior Liens and
Liens otherwise permitted hereunder) which is not discharged of record and
which could have priority over the Lien of this Deed to Secure Debt in
respect of any part of the Secured Obligations; and
(iii) The final request for any payment after the Restoration has
been completed shall be accompanied by an Architect's Certificate listing
all certificates, permits, licenses, waivers, other documents, or any
combination of the foregoing required by law in connection with or as a
result of such Restoration and stating that all of the same have been
obtained, or if not obtained, the failure
-26-
to obtain such certificate, permit, license or waiver will not have a
Material Adverse Effect.
In the event that there shall be any surplus after application of the
Net Award or the Net Proceeds to Restoration of the Improvements and the
Equipment, such surplus shall be applied as Net Cash Proceeds in accordance with
Section 3.02(B)(a) of the Credit Agreement or, at the option of Beneficiary,
shall be held by Beneficiary as additional collateral to secure the performance
by Grantor of the Secured Obligations.
SECTION 1.14. Alterations. Grantor shall not, without the prior
-----------
written consent of Beneficiary, which consent shall not be unreasonably withheld
or delayed, make any addition, modification or change which is structural in
nature (each, an "Alteration") to the Premises that costs more to effect than
$250,000. Whether or not Beneficiary has consented to the making of any
Alteration, Grantor shall (i) complete each Alteration promptly, in a good and
workmanlike manner and in compliance with all applicable material local laws,
ordinances and requirements (subject to extensions for delays caused by reason
of force majeure) and (ii) pay when due all claims for labor performed and
materials furnished in connection with such Alteration, unless contested in
accordance with the provisions of subsection 1.5.5.
SECTION 1.15. Hazardous Material.
------------------
1.15.1 Each of the provisions of Section 5.27 of the Credit Agreement
is restated herein in its entirety (including all defined terms referenced
therein) mutatis mutandis. Grantor shall comply with the provisions of such
------- --------
section as if such grantor were the "Borrower and its Subsidiaries" as
referenced therein.
1.15.2 Each of the provisions of Sections 6.15 of the Credit
Agreement is restated herein in its entirety (including all defined terms
referenced therein) mutatis mutandis. Grantor shall comply with the provisions
----------------
of such section as if such Grantor were the "Borrower and its Subsidiaries" as
referenced therein. In the event Grantor fails to comply with the referenced
covenants, Beneficiary may, in addition to any other remedies set forth herein,
as agent for and at Grantor's sole cost and expense, cause any necessary
remediation, removal or response action required by Environmental Laws relating
to
-27-
Hazardous Materials to be taken and Grantor shall provide to Beneficiary and its
agents and employees reasonable access to the Mortgaged Property for such
purpose. Any reasonable costs or expenses incurred by Beneficiary for such
purpose shall be payable by Grantor immediately upon demand therefor and shall
bear interest at the Default Rate. Beneficiary shall have the right at any time
that the Secured Obligations are outstanding, at the sole cost and expense of
Grantor, to conduct an environmental audit of the Mortgaged Property where
Beneficiary believes that cause exists, including in the event any change in any
applicable Environmental Law would either require the conduct of an
environmental audit or make such an audit prudent, by such persons or firms
appointed by Beneficiary, and Grantor shall cooperate in all reasonable respects
in the conduct of such environmental audit, including, without limitation, by
providing reasonable access to the Mortgaged Property and to all relevant
records relating thereto. To the extent that any such environmental audit
identifies conditions which violate, or could be expected to give rise to
material liability or obligations under Environmental Laws, Grantor agrees to
expeditiously correct any such violation or respond to conditions giving rise to
such liability or obligations in a manner which complies with Environmental
Laws. Grantor shall indemnify and hold Beneficiary and each Bank harmless from
and against all loss, cost, damage (including, without limitation, consequential
damages) and expense (including, without limitation, attorneys' and consultants'
fees and disbursements and the allocated costs of staff counsel) that
Beneficiary or such Bank may sustain by reason of the assertion against
Beneficiary or such Bank by any party of any claim relating to such Hazardous
Materials on, under or from the Mortgaged Property or actions taken with respect
thereto as authorized hereunder. The foregoing indemnification shall survive
repayment of all Secured Obligations and any release or assignment of this Deed
to Secure Debt except with regard to any loss, cost, damage or expense arising
from or relating to acts or omissions occurring after Beneficiary or any Bank
takes possession of, uses, operates, manages, controls or sells the Mortgaged
Property provided, however, that such exception shall apply only to the extent
such loss, cost, damage or expense arises solely from the gross negligence, bad
faith or willful misconduct of Beneficiary or any Bank or of the agents of
Beneficiary or any Bank.
SECTION 1.16. Asbestos. Grantor shall not install nor permit to be
--------
installed in or removed from the Mortgaged
-28-
Property, asbestos or any asbestos-containing material (collectively, "ACM")
except in compliance with all applicable Environmental Laws, and with respect to
any ACM currently present in the Mortgaged Property, Grantor shall promptly
either (i) remove or encapsulate any ACM which such Environmental Laws require
to be removed or (ii) otherwise comply with such Environmental Laws with respect
to such ACM, all at Grantor's sole cost and expense. If Grantor shall fail to so
remove or encapsulate any ACM or otherwise comply with such Environmental Laws,
Beneficiary may, in addition to any other remedies set forth herein, take
whatever steps it deems necessary or appropriate to remove or encapsulate any
ACM from the Mortgaged Property or otherwise comply with applicable
Environmental Laws, and Grantor shall provide to Beneficiary and its agents and
employees reasonable access to the Mortgaged Property for such purpose. Any
reasonable costs or expenses incurred by Beneficiary for such purpose shall be
payable by Grantor immediately upon demand therefor and shall bear interest at
the Default Rate. Grantor shall indemnify and hold Beneficiary and each Bank
harmless from and against all loss, cost, damage (including, without limitation,
consequential damages) and expense (including, without limitation, attorneys'
and consultants' fees and disbursements and the allocated costs of staff
counsel) that Beneficiary or such Bank may sustain as a result of the presence
of any ACM and any removal thereof or compliance with Environmental Laws. The
foregoing indemnification shall survive repayment of all Secured Obligations and
any release or assignment of this Deed to Secure Debt except with regard to any
loss, cost, damage or expense arising from or relating to acts or omissions
occurring after Beneficiary or any Bank takes possession of, uses, operates,
manages, controls or sells the Mortgaged Property provided, however, that such
exception shall apply only to the extent such loss, cost, damage or expense
arises solely from the gross negligence, bad faith or willful misconduct of
Beneficiary or any Bank or of the agents of Beneficiary or any Bank.
SECTION 1.17. Books and Records; Other Information.
------------------------------------
1.17.1 Grantor shall keep proper books of record and account in which
full, true and correct entries shall be made of all dealings or transactions of
or in relation to the Mortgaged Property and the business and affairs of Grantor
relating to the Mortgaged Property. Upon reasonable notice by Beneficiary to
the chief financial officer, controller or any other
-29-
Authorized Officer of Grantor, Beneficiary and its authorized representatives
shall have the right at reasonable times during regular business hours and
intervals and to such reasonable extent as may be reasonably requested by
Beneficiary to examine the books and records of Grantor relating to the
operation of the Mortgaged Property.
1.17.2 Grantor shall, at any and all times, within a reasonable time
after written request by Beneficiary, furnish or cause to be furnished to
Beneficiary, in such manner and in such detail as may be reasonably requested by
Beneficiary, additional information with respect to the Mortgaged Property.
SECTION 1.18. No Claims Against Beneficiary. Nothing contained in
-----------------------------
this Deed to Secure Debt shall constitute any consent or request by Beneficiary,
express or implied, for the performance of any labor or services or the
furnishing of any materials or other property in respect of the Premises or any
part thereof, nor as giving Grantor any right, power or authority to contract
for or permit the performance of any labor or services or the furnishing of any
materials or other property in such fashion as would permit the making of any
claim against Beneficiary in respect thereof or any claim that any Lien based on
the performance of such labor or services or the furnishing of any such
materials or other property is prior to the Lien of this Deed to Secure Debt.
SECTION 1.19. Utility Services. Grantor shall pay, or cause to be
----------------
paid, when due all charges for all public or private utility services, all
public or private rail and highway services, all public or private communication
services, all sprinkler systems, and all protective services and any other
services of whatever kind or nature at any time rendered to or in connection
with the Premises or any part thereof, shall comply with all contracts relating
to any such services, and shall do all other things required for the maintenance
and continuance of all such services to the extent required to fulfill the
obligations set forth in Section 1.10.
-30-
ARTICLE II
ASSIGNMENT OF LEASES; SECURITY AGREEMENT;
ASSIGNMENT AGREEMENT
------------------------------------------
SECTION 2.1. Assignment of Leases, Rents, Issues and Profits.
-----------------------------------------------
2.1.1 Grantor absolutely, presently and irrevocably assigns,
transfers and sets over to Beneficiary, and grants to Beneficiary subject to the
terms and conditions hereof, all Grantor's estate, right, title, interest, claim
and demand as landlord to collect rent and other sums due under all existing
Leases and any other Leases, including, without limitation, all extensions of
the terms of the Leases (such assigned rights, "Grantor's Interest"), as
follows:
(i) the immediate and continuing right to receive and collect
Rents payable by all tenants or other parties pursuant to the Leases;
(ii) all claims, rights, powers, privileges and remedies of
Grantor, whether provided for in any Lease or arising by statute or at law
or in equity or otherwise, consequent on any failure on the part of any
tenant to perform or comply with any term of any Lease;
(iii) all rights to take all actions upon the happening of a
default under any Lease as shall be permitted by such Lease or by law,
including, without limitation, the commencement, conduct and consummation
of proceedings at law or in equity; and
(iv) the full power and authority, in the name of Grantor or
otherwise, to enforce, collect, receive and receipt for any and all of the
foregoing and to do any and all other acts and things whatsoever which
Grantor or any landlord is or may be entitled to do under the Leases.
2.1.2 Any Rents receivable by Beneficiary hereunder, after payment of
all proper costs and charges, shall be applied to all amounts due and owing
under and as provided in this Deed to Secure Debt and the Credit Agreement.
Beneficiary shall be accountable to Grantor only for Rents actually received by
Beneficiary pursuant to this assignment. The collection of
-31-
such Rents and the application thereof shall not cure or waive any Event or
Default or waive, modify or affect notice of Event of Default or invalidate any
act done pursuant to such notice.
2.1.3 So long as no Event of Default shall have occurred and be
continuing, Grantor shall have a license to collect and apply the Rents and to
enforce the obligations of tenants under the Leases. Immediately upon the
occurrence and during the continuance of any Event of Default, the license
granted in the immediately preceding sentence shall cease and terminate, with or
without any notice, action or proceeding or the intervention of a receiver
appointed by a court. Upon such Event of Default and during the continuance
thereof, Beneficiary may, to the fullest extent permitted by the Leases, (i)
exercise any of Grantor's rights under the Leases, (ii) enforce the Leases,
(iii) demand, collect, ▇▇▇ for, attach, levy, recover, receive, compromise and
adjust, and make, execute and deliver receipts and releases for all Rents or
other payments that may then be or may thereafter become due, owing or payable
with respect to the Leases and (iv) generally, do, execute and perform any other
act, deed, matter or thing whatsoever that ought to be done, executed and
performed in and about or with respect to the Leases, as fully as allowed or
authorized by Grantor's Interest.
2.1.4 Upon the occurrence and during the continuance of an Event of
Default, Grantor shall, at the direction of Beneficiary, further authorize and
direct the tenant under each Lease to pay directly to, or as directed by,
Beneficiary all Rents accruing or due under its Lease without proof to the
tenant of the occurrence and continuance of such Event of Default. Grantor
hereby authorizes the tenant under each Lease to rely upon and comply with any
notice or demand from Beneficiary for payment of Rents to Beneficiary and
Grantor shall have no claim against any tenant for Rents paid by such tenant to
Beneficiary pursuant to such notice or demand.
2.1.5 Grantor at its sole cost and expense shall use commercially
reasonable efforts to enforce the material terms of the Leases in accordance
with their terms. Neither this Deed to Secure Debt nor any action or inaction
on the part of Beneficiary shall release any tenant under any Lease, any
guarantor of any Lease or Grantor from any of their respective obligations under
the Leases or constitute an assumption of any such obligation on the part of
Beneficiary. No action or fail-
-32-
ure to act on the part of Grantor shall adversely affect or limit the rights of
Beneficiary under this Deed to Secure Debt or, through this Deed to Secure Debt,
under the Leases.
2.1.6 All rights, powers and privileges of Beneficiary herein set
forth are coupled with an interest and are irrevocable, subject to the terms and
conditions hereof, and Grantor shall not take any action under the Leases or
otherwise which is inconsistent with this Deed to Secure Debt or any of the
terms hereof and any such action inconsistent herewith or therewith shall be
void. Grantor shall, from time to time, upon reasonable request of Beneficiary,
execute all instruments and further assurances and all supplemental instruments
and take all such action as Beneficiary from time to time may reasonably request
in order to perfect, preserve and protect the interests intended to be assigned
to Beneficiary hereby.
2.1.7 Grantor shall not, unilaterally or by agreement, subordinate,
amend, modify, extend, discharge, terminate, surrender, waive or otherwise
change any material term of any of the Material Leases in any manner which would
violate this Deed to Secure Debt. If the Leases shall be amended as permitted
hereby, they shall continue to be subject to the provisions hereof without the
necessity of any further act by any of the parties hereto.
2.1.8 Nothing contained herein shall operate or be construed to (i)
obligate Beneficiary to perform any of the terms, covenants or conditions
contained in the Leases or otherwise to impose any obligation upon Beneficiary
with respect to the Leases (including, without limitation, any obligation
arising out of any covenant of quiet enjoyment contained in the Leases in the
event that any tenant under a Lease shall have been joined as a party defendant
in any action by which the estate of such tenant shall be terminated) or (ii)
place upon Beneficiary any responsibility for the operation, control, care,
management or repair of the Premises.
SECTION 2.2. Security Interest in Fixtures.
-----------------------------
2.2.1 This Deed to Secure Debt shall constitute a security agreement
and shall create and evidence a security interest in all the Equipment and in
all the other items of Mortgaged Property to the extent the same constitute
"fixtures" under the UCC as in effect in Georgia in which a security inter-
-33-
est may be granted pursuant to the UCC as in effect in the State of Georgia
(collectively, "Fixtures").
2.2.2 Upon the occurrence of any Event of Default, in addition to the
remedies set forth in Article III, Beneficiary shall have the power to sell the
Fixtures in accordance with the Uniform Commercial Code as enacted in the state
in which the Premises are located or under other applicable law. It shall not
be necessary that any Fixtures offered be physically present at any such sale or
constructively in the possession of Beneficiary or the person conducting the
sale.
2.2.3 Upon the occurrence and during the continuance of any Event of
Default, Beneficiary may sell the Fixtures or any part thereof at public or
private sale with notice to Grantor as hereinafter provided. The proceeds of
any such sale, after deducting all expenses of Beneficiary in taking, storing,
repairing and selling the Fixtures (including, without limitation, attorneys'
fees and legal expenses) shall be applied in the manner set forth in subsection
3.3.3. At any sale, public or private, of the Fixtures or any part thereof,
Beneficiary may purchase any or all of the Fixtures offered at such sale.
2.2.4 Beneficiary shall give Grantor reasonable notice of any sale of
any of the Fixtures pursuant to the provisions of this Section 2.2.
Notwithstanding the provisions of Section 5.2, any such notice shall
conclusively be deemed to be reasonable and effective if such notice is mailed
at least five (5) days prior to any sale, by first class or certified mail,
postage prepaid, to Grantor at its address determined in accordance with the
provisions of Section 5.2.
ARTICLE III
EVENTS OF DEFAULT AND REMEDIES
------------------------------
SECTION 3.1. Events of Default. It shall be an Event of Default
-----------------
hereunder if there shall have occurred and be continuing an Event of Default
under the Credit Agreement.
SECTION 3.2. Remedies in Case of an Event of Default. If any Event
---------------------------------------
of Default shall have occurred and be continuing, Beneficiary may at
Beneficiary's option, in addition to any other action permitted under this Deed
to Secure Debt or
-34-
the Credit Agreement or by law, statute or in equity, take one or more of the
following actions:
3.2.1 by written notice to Grantor, declare in accordance with and
pursuant to the terms of the Credit Agreement the entire unpaid amount of the
Secured Obligations to be due and payable immediately;
3.2.2 personally, or by its agents or attorneys, (i) enter into and
upon and take possession of all or any part of the Premises together with the
books, records and accounts of Grantor relating thereto and, exclude Grantor,
its agents and servants wholly therefrom, (ii) use, operate, manage and control
the Premises and the Equipment and conduct the business thereof, (iii) maintain
and restore the Premises and the Equipment, (iv) make all necessary or proper
repairs, renewals and replacements and such useful Alterations thereto and
thereon as Beneficiary may deem advisable, (v) manage, lease and operate the
Premises and carry on the business thereof and exercise all rights and powers of
Grantor with respect thereto either in the name of Grantor or otherwise or (vi)
collect and receive all earnings, revenues, rents, issues, profits and income of
the Mortgaged Property and every part thereof. Beneficiary shall be under no
liability for or by reason of any such taking of possession, entry, removal or
holding, operation or management except that any amounts so received by
Beneficiary shall be applied as follows:
FIRST: to pay costs and expenses (including, without limitation,
attorneys' fees and expenses) of so entering upon, taking possession of,
holding, operating and managing the Mortgaged Property or any part thereof,
and any taxes, assessments or other charges which Beneficiary may consider
necessary or desirable to pay, and any other amounts due to Beneficiary;
SECOND: to the payment in full in cash of Secured Obligations
consisting of interest and all amounts other than principal under the
Credit Agreement at any time and from time to time owing by Grantor under
or in connection with the Credit Agreement, ratably according to the unpaid
amounts thereof, in the manner and priority set forth in the Credit
Agreement, together with interest on each such amount in the manner and to
the extent set forth in the
-35-
Credit Agreement from and after the date such amount is due, owing or
unpaid until paid in full;
THIRD: to the pro rata payment in full in cash of Secured Obligations
--- ----
consisting of (i) principal at any time and from time to time owing by
Grantor under or in connection with the Credit Agreement, ratably according
to the unpaid amounts thereof, in the manner and priority set forth in the
Credit Agreement and (ii) the amount of Grantor's obligations then due and
payable under any Interest Rate Agreement, including any early termination
payments then due (exclusive of expenses or similar liabilities to any Bank
under the applicable Interest Rate Agreement(s)), together with interest on
each such amount in the manner and to the extent set forth in the Credit
Agreement from and after the date such amount is due, owing or unpaid until
paid in full; and
FOURTH: the balance, if any, to the Person lawfully entitled thereto
(including Grantor or its successors or assigns), if all conditions to the
release of this Deed to Secure Debt shall have been fulfilled, but if any
such condition shall not have been fulfilled, to be held by Beneficiary and
thereafter applied to any future payments required to be made in accordance
with clauses FIRST, SECOND and THIRD above.
3.2.3 with or without entry, personally or by its agents or
attorneys, (i) sell the Mortgaged Property and all estate, right, title and
interest, claim and demand therein at one or more sales in one or more parcels,
in accordance with the provisions of Section 3.3 or (ii) institute and prosecute
proceedings for the complete or partial foreclosure of the Lien and security
interests created and evidenced hereby; or
3.2.4 take such steps to protect and enforce its rights whether by
action, suit or proceeding at law or in equity for the specific performance of
any covenant, condition or agreement in the Credit Agreement and the other
Credit Documents, or in aid of the execution of any power granted in this Deed
to Secure Debt, or for any foreclosure hereunder, or for the enforcement of any
other appropriate legal or equitable remedy or otherwise as Beneficiary shall
elect.
SECTION 3.3. Sale of Mortgaged Property if Event of Default Occurs;
------------------------------------------------------
Proceeds of Sale.
----------------
-36-
3.3.1 Upon acceleration of the Loans and all Obligations owing under
the Credit Agreement as provided in subsection 3.2.1 hereof, Beneficiary may
institute an action to foreclose this Deed to Secure Debt or take such other
action as may be permitted and available to Beneficiary at law or in equity for
the enforcement of the Credit Agreement and realization on the Mortgaged
Property and proceeds thereon through power of sale or to final judgment and
execution thereof for the Secured Obligations, and in furtherance thereof
Beneficiary may sell the Mortgaged Property at one or more sales, as an entirety
or in parcels, at such time and place, upon such terms and after such notice
thereof as may be required or permitted by law or statute or in equity.
Beneficiary may execute and deliver to the purchaser at such sale a conveyance
of the Mortgaged Property in fee simple and an assignment or conveyance of all
Grantor's Interest in the Leases and the Mortgaged Property, each of which
conveyances and assignments shall contain recitals as to the Event of Default
upon which the execution of the power of sale herein granted depends, and
Grantor hereby constitutes and appoints Beneficiary the true and lawful attorney
in fact of Grantor to make any such recitals, sale, assignment and conveyance,
and all of the acts of Beneficiary as such attorney in fact are hereby ratified
and confirmed. Grantor agrees that such recitals shall be binding and
conclusive upon Grantor and that any assignment or conveyance to be made by
Beneficiary shall divest Grantor of all right, title, interest, equity and right
of redemption, including any statutory redemption, in and to the Mortgaged
Property. The power and agency hereby granted are coupled with an interest and
are irrevocable by death or dissolution, or otherwise, and are in addition to
any and all other remedies which Beneficiary may have hereunder, at law or in
equity. So long as the Secured Obligations, or any part thereof, remain unpaid,
Grantor agrees that possession of the Mortgaged Property by Grantor, or any
person claiming under Grantor, shall be as tenant, and, in case of a sale under
power or upon foreclosure as provided in this Deed to Secure Debt, Grantor and
any person in possession under Grantor, as to whose interest such sale was not
made subject, shall, at the option of the purchaser at such sale, then become
and be tenants holding over, and shall forthwith deliver possession to such
purchaser, or be summarily dispossessed in accordance with the laws applicable
to tenants holding over. In case of any sale under this Deed to Secure Debt by
virtue of the exercise of the powers herein granted, or pursuant to any order in
any judicial proceeding or otherwise, the Mortgaged Property may be sold as
-37-
an entirety or in separate parcels in such manner or order as Beneficiary in its
discretion may elect. One or more exercises of powers herein granted shall not
extinguish or exhaust such powers, until the entire Mortgaged Property is sold
or all amounts secured hereby are paid in full.
3.3.2 In the event of any sale made under or by virtue of this
Article III, the entire principal of, and interest in respect of the Secured
Obligations, if not previously due and payable, shall, at the option of
Beneficiary, immediately become due and payable, anything in this Deed to Secure
Debt to the contrary notwithstanding.
3.3.3 The proceeds of any sale made under or by virtue of this
Article III, together with any other sums which then may be held by Beneficiary
under this Deed to Secure Debt, whether under the provisions of this Article III
or otherwise, shall be applied as follows:
FIRST: to pay the costs and expenses incurred by Beneficiary in
enforcing its remedies under this Deed to Secure Debt;
SECOND: to pay the costs and expenses of the sale and of any receiver
of the Mortgaged Property or any part thereof appointed pursuant to
subsection 3.5.2;
THIRD: to the payment in full in cash of Secured Obligations
consisting of interest and all amounts other than principal under the
Credit Agreement at any time and from time to time owing by Grantor under
or in connection with the Credit Agreement, ratably according to the unpaid
amounts thereof, in the manner and priority set forth in the Credit
Agreement, together with interest on each such amount in the manner and to
the extent set forth in the Credit Agreement from and after the date such
amount is due, owing or unpaid until paid in full;
FOURTH: to the pro rata payment in full in cash of Secured
--- ----
Obligations consisting of (i) principal at any time and from time to time
owing by Grantor under or in connection with the Credit Agreement, ratably
according to the unpaid amounts thereof, in the manner and priority set
forth in the Credit Agreement and (ii) the amount of Grantor's obligations
then due and payable under any Interest Rate Agreement, including any early
termination payments
-38-
then due (exclusive of expenses or similar liabilities to any Bank under
the applicable Interest Rate Agreement(s)), together with interest on each
such amount in the manner and to the extent set forth in the Credit
Agreement from and after the date such amount is due, owing or unpaid until
paid in full; and
FIFTH: the balance, if any, to the Person lawfully entitled thereto
(including Grantor or its successors or assigns).
3.3.4 Beneficiary (on behalf of any Bank or on its own behalf) or any
Bank or any of their respective Affiliates may bid for and acquire the Mortgaged
Property or any part thereof at any sale made under or by virtue of this
Article III and, in lieu of paying cash therefor, may make settlement for the
purchase price by crediting against the purchase price the unpaid amounts
(whether or not then due) owing to Beneficiary, or such Bank in respect of the
Secured Obligations, after deducting from the sales price the expense of the
sale and the reasonable costs of the action or proceedings and any other sums
that Beneficiary or such Bank is authorized to deduct under this Deed to Secure
Debt.
3.3.5 Beneficiary may adjourn from time to time any sale by it to be
made under or by virtue of this Deed to Secure Debt by announcement at the time
and place appointed for such sale or for such adjourned sale or sales, and,
Beneficiary, without further notice or publication, may make such sale at the
time and place to which the same shall be so adjourned.
3.3.6 If the Premises is comprised of more than one parcel of land,
Beneficiary may take any of the actions authorized by this Section 3.3 in
respect of any or a number of individual parcels.
SECTION 3.4. Additional Remedies in Case of an Event of Default.
--------------------------------------------------
3.4.1 Beneficiary shall be entitled to recover judgment as aforesaid
either before, after or during the pendency of any proceedings for the
enforcement of the provisions of this Deed to Secure Debt, and the right of
Beneficiary 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 to Se-
-39-
cure Debt, or the foreclosure of, or absolute conveyance pursuant to, this Deed
to Secure Debt. In case of proceedings against Grantor in insolvency or
bankruptcy or any proceedings for its reorganization or involving the
liquidation of its assets, Beneficiary shall be entitled to prove the whole
amount of principal and interest and other payments, charges and costs due in
respect of the Secured Obligations to the full amount thereof without deducting
therefrom any proceeds obtained from the sale of the whole or any part of the
Mortgaged Property; provided, however, that in no case shall Beneficiary
-------- -------
receive a greater amount than the aggregate of such principal, interest and such
other payments, charges and costs (with interest at the Default Rate) from the
proceeds of the sale of the Mortgaged Property and the distribution from the
estate of Grantor.
3.4.2 Any recovery of any judgment by Beneficiary and any levy of any
execution under any judgment upon the Mortgaged Property shall not affect in any
manner or to any extent the Lien and security interests created and evidenced
hereby upon the Mortgaged Property or any part thereof, or any conveyances,
powers, rights and remedies of Beneficiary hereunder, but such conveyances,
powers, rights and remedies shall continue unimpaired as before.
3.4.3 Any moneys collected by Beneficiary under this Section 3.4
shall be applied in accordance with the provisions of subsection 3.3.3.
SECTION 3.5. Legal Proceedings After an Event of Default.
-------------------------------------------
3.5.1 After the occurrence of any Event of Default and immediately
upon the commencement of any action, suit or legal proceedings to obtain
judgment for the Secured Obligations or any part thereof, or of any proceedings
to foreclose the Lien and security interest created and evidenced hereby or
otherwise enforce the provisions of this Deed to Secure Debt or of any other
proceedings in aid of the enforcement of this Deed to Secure Debt, Grantor shall
enter its voluntary appearance in such action, suit or proceeding.
3.5.2 Upon the occurrence and during the continuance of an Event of
Default, Beneficiary shall be entitled forthwith as a matter of right,
concurrently or independently of any other right or remedy hereunder either
before or after declaring the Secured Obligations or any part thereof to be due
and
-40-
payable, to the appointment of a receiver without giving notice to any party and
without regard to the adequacy or inadequacy of any security for the Secured
Obligations or the solvency or insolvency of any person or entity then legally
or equitably liable for the Secured Obligations or any portion thereof. Grantor
hereby consents to the appointment of such receiver. Notwithstanding the
appointment of any receiver, Beneficiary shall be entitled as pledgee to the
possession and control of any cash, deposits or instruments at the time held by
or payable or deliverable under the terms of the Credit Agreement to
Beneficiary.
3.5.3 Grantor shall not (i) at any time insist upon, or plead, or in
any manner whatsoever 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 to Secure Debt, (ii) claim, take or insist on 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 of the
Mortgaged Property which may be made pursuant to this Deed to Secure Debt, or
pursuant to any decree, judgment or order of any court of competent jurisdiction
or (iii) 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. To the extent permitted by applicable law, Grantor hereby
expressly (i) waives all benefit or advantage of any such law or laws,
including, without limitation, any statute of limitations applicable to this
Deed to Secure Debt, (ii) waives any and all rights to trial by jury in any
action or proceeding relating to the enforcement of this Deed to Secure Debt,
(iii) waives any objection which it may now or hereafter have to the laying of
venue of any action, suit or proceeding brought in connection with this Deed to
Secure Debt and further waives and agrees not to plead that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum and (iv) covenants not to hinder, delay or impede the execution of any
power granted or delegated to Beneficiary by this Deed to Secure Debt but to
suffer and permit the execution of every such power as though no such law or
laws had been made or enacted. Beneficiary shall not be liable for any
incorrect or improper payment made
-41-
pursuant to this Article III in the absence of gross negligence or willful
misconduct.
SECTION 3.6. Remedies Not Exclusive. No remedy conferred upon or
----------------------
reserved to Beneficiary by this Deed to Secure Debt is intended to be exclusive
of any other remedy or remedies, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Deed
to Secure Debt or now or hereafter existing at law or in equity. Any delay or
omission of Beneficiary to exercise any right or power accruing on any Event of
Default shall not impair any such right or power and shall not be construed to
be a waiver of or acquiescence in any such Event of Default. Every power and
remedy given by this Deed to Secure Debt may be exercised from time to time
concurrently or independently, when and as often as may be deemed expedient by
Beneficiary in such order and manner as Beneficiary, in its sole discretion, may
elect. If Beneficiary accepts any moneys required to be paid by Grantor under
this Deed to Secure Debt after the same become due, such acceptance shall not
constitute a waiver of the right either to require prompt payment, when due, of
all other sums secured by this Deed to Secure Debt or to declare an Event of
Default with regard to subsequent defaults. If Beneficiary accepts any moneys
required to be paid by Grantor under this Deed to Secure Debt in an amount less
than the sum then due, such acceptance shall be deemed an acceptance on account
only and on the condition that it shall not constitute a waiver of the
obligation of Grantor to pay the entire sum then due, and Grantor's failure to
pay the entire sum then due shall be and continue to be a default hereunder
notwithstanding acceptance of such amount on account.
ARTICLE IV
CERTAIN DEFINITIONS
-------------------
The following terms shall have the following respective meanings:
"Cost of Construction" means the sum, so far as it relates to the
--------------------
reconstructing, renewing, restoring or replacing of the Improvements, of (i)
obligations incurred or assumed by Grantor or undertaken by tenants pursuant to
the terms of the Leases for labor, materials and other expenses and to
contrac-
-42-
tors, builders and materialmen; (ii) the cost of contract bonds and of insurance
of all kinds that may reasonably be deemed by Grantor to be desirable or
necessary during the course of construction; (iii) the expenses incurred or
assumed by Grantor for test borings, surveys, estimates, any Plans and
Specifications and preliminary investigations therefor, and for supervising
construction, as well as for the performance of all other duties required by or
reasonably necessary for proper construction; (iv) ad valorem property taxes
levied upon the Premises during performance of any Restoration; and (v) any
costs or other charges in connection with obtaining title insurance and counsel
opinions that may be required or necessary in connection with a Restoration.
"Governmental Authority" shall mean any federal, state, local or
----------------------
foreign court, agency, authority, board, bureau, commission, department, office
or instrumentality of any nature whatsoever or any governmental or quasi-
governmental unit, whether now or hereafter in existence, or any officer or
official thereof, having jurisdiction over Grantor or the Mortgaged Property.
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.1. Severability of Provisions. Any provision of this
--------------------------
Deed to Secure Debt which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 5.2. Notices. Unless otherwise provided herein or in the
-------
Credit Agreement, any notice or other communication herein required or permitted
to be given shall be given in the manner set forth in the Credit Agreement, if
to Grantor or Beneficiary, addressed to it at the address set forth in the
Credit Agreement, or as to either party at such other address as shall be
designated by such party in a written notice to the other parties complying as
to delivery with the terms of this Section 5.2; provided, however, that notices
-------- -------
to Beneficiary shall not be effective until received by Beneficiary.
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SECTION 5.3. Covenants To Run with the Land. All of the grants,
------------------------------
covenants, terms, provisions and conditions in this Deed to Secure Debt shall
run with the Land and shall apply to, and bind the successors and assigns of,
Grantor. If there shall be more than one grantor, the covenants and warranties
hereof shall be joint and several.
SECTION 5.4. Headings. The Section headings used in this Deed to
--------
Secure Debt are for convenience of reference only and shall not affect the
construction of this Deed to Secure Debt.
SECTION 5.5. Limitation on Interest Payable. It is the intention
------------------------------
of the parties to conform strictly to the usury laws, whether state or federal,
that are applicable to the transaction of which this Deed to Secure Debt is a
part. All agreements between Grantor and Beneficiary whether now existing or
hereafter arising and whether oral or written, are hereby expressly limited so
that in no contingency or event whatsoever shall the amount paid or agreed to be
paid by Grantor for the use, forbearance or detention of the money to be loaned
under the Credit Agreement or any related document, or for the payment or
performance of any covenant or obligation contained herein or in the Credit
Agreement or any related document, exceed the maximum amount permissible under
applicable federal or state usury laws. If under any circumstances whatsoever
fulfillment of any such provision, at the time performance of such provision
shall be due, shall involve exceeding the limit of validity prescribed by law,
then the obligation to be fulfilled shall be reduced to the limit of such
validity. If under any circumstances Grantor shall have paid an amount deemed
interest by applicable law, which would exceed the highest lawful rate, such
amount that would be excessive interest under applicable usury laws shall be
applied to the reduction of the principal amount owing in respect of the Secured
Obligations and not to the payment of interest, or if such excessive interest
exceeds the unpaid balance of principal and any other amounts due hereunder, the
excess shall be refunded to Grantor. All sums paid or agreed to be paid for the
use, forbearance or detention of the principal under any extension of credit by
Beneficiary shall, to the extent permitted by applicable law, and to the extent
necessary to preclude exceeding the limit of validity prescribed by law, be
amortized, prorated, allocated and spread from the date of this Deed to Secure
Debt until payment in full of the Secured Obligations so that the actual rate of
interest
-44-
on account of such principal amounts is uniform throughout the term hereof.
SECTION 5.6. Governing Law; Submission to Jurisdiction; Venue. (a)
------------------------------------------------
This Deed to Secure Debt and the rights and obligations of the parties hereunder
shall be construed and enforced in accordance with and be governed by the laws
of the State in which the Premises are located. Grantor hereby irrevocably
appoints CT Corporation System, having an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and such other persons as may hereafter be selected by Grantor
irrevocably agreeing in writing to serve as its agent for service of process in
respect of any such action or proceeding. Nothing herein shall affect the right
of Beneficiary to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against Grantor in any other
jurisdiction.
(b) Grantor hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Deed to Secure Debt and
hereby further irrevocably waives and agrees not to plead or claim in any court
that any such action or proceeding brought in any court has been brought in an
inconvenient forum.
SECTION 5.7. No Merger. The rights and estate created by this Deed
---------
to Secure Debt shall not, under any circumstances, be held to have merged into
any other estate or interest now owned or hereafter acquired by Beneficiary
unless Beneficiary shall have consented to such merger in writing.
SECTION 5.8. Modification in Writing. No amendment, modification,
-----------------------
supplement, termination or waiver of or to any provision of this Deed to Secure
Debt, nor consent to any departure by Grantor therefrom shall be effective
unless the same shall be done in accordance with the terms of the Credit
Agreement and unless in writing and signed by Beneficiary. Any amendment,
modification or supplement of or to any provision of this Deed to Secure Debt,
any waiver of any provision of this Deed to Secure Debt, and any consent to any
departure by Grantor from the terms of any provision of this Deed to Secure Debt
shall be effective only in the specific instance and for the specific purpose
for which made or given. Except where notice is specifically required by this
Deed to Secure Debt or any other Credit Document, no notice to or demand on
Grantor in any
-45-
case shall entitle Grantor to any other or further notice or demand in similar
or other circumstances.
SECTION 5.9. No Credit for Payment of Taxes or Impositions.
---------------------------------------------
Grantor shall not be entitled to any credit against the principal, premium, if
any, or interest payable under the Credit Agreement, and Grantor shall not be
entitled to any credit against any other sums which may become payable under the
terms thereof or hereof, by reason of the payment of any tax or other
impositions on the Mortgaged Property or any part thereof.
SECTION 5.10. Stamp and Other Taxes. Subject to the provisions of
---------------------
subsection 1.5.5 relating to permitted contests, Grantor shall pay any mortgage
recording taxes, with interest and fines and penalties, that may hereafter be
levied, imposed or assessed under or upon or by reason of this Deed to Secure
Debt or the Secured Obligations or any instrument or transaction affecting or
relating to either thereof and in default thereof Beneficiary may advance the
same and the amount so advanced shall be payable by Grantor to Beneficiary
within ten (10) days after demand therefor, together with interest thereon at
the Default Rate.
SECTION 5.11. Estoppel Certificates. Grantor and Beneficiary shall,
---------------------
from time to time, upon thirty (30) days' prior written request of the other
party, execute, acknowledge and deliver to the other party a certificate signed
by an authorized officer or officers stating that this Deed to Secure Debt, the
Credit Agreement and the other Credit Documents are unmodified and in full force
and effect (or, if there have been modifications, that this Deed to Secure Debt,
the Credit Agreement or such Credit Document, as applicable, is in full force
and effect as modified and setting forth such modifications) and stating the
date to which principal and interest have been paid on the Loans.
SECTION 5.12. Additional Security. Without notice to or consent of
-------------------
Grantor and without impairment of the Lien and rights created by this Deed to
Secure Debt, Beneficiary may accept (but Grantor shall not be obligated to
furnish) from Grantor or from any other Person or Persons, additional security
for the Secured Obligations. Neither the giving of this Deed to Secure Debt nor
the acceptance of any such additional security shall prevent Beneficiary from
resorting, first, to such
-46-
additional security, and, second, to the security created by this Deed to Secure
Debt without affecting Beneficiary's Lien and rights under this Deed to Secure
Debt.
SECTION 5.13. Release. The Mortgaged Property shall be released
-------
from the Lien of this Deed to Secure Debt in accordance with the provisions of
the Credit Agreement or at such time as all Secured Obligations have been paid
in full and the Commitments of the Banks to make any Loan or issue any Letter of
Credit under the Credit Agreement shall have expired or been sooner terminated.
Beneficiary, on the written request and at the expense of Grantor, will execute
and deliver such proper instruments of release and satisfaction or assignment as
may reasonably be requested to evidence such release or assignment, and any such
instrument, when duly executed by Beneficiary and duly recorded by Grantor in
the places where this Deed to Secure Debt is recorded, shall conclusively
evidence the release or assignment of this Deed to Secure Debt.
SECTION 5.14. Certain Expenses of Beneficiary. If any action, suit
-------------------------------
or other proceeding affecting the Mortgaged Property or any part thereof be
commenced, in which action, suit or proceeding Beneficiary is made a party or
participates or in which the right to use the Mortgaged Property or any part
thereof is threatened, or in which it becomes necessary in the judgment of
Beneficiary to defend or uphold the Lien of this Deed to Secure Debt (including,
without limitation, any action, suit or proceeding to establish or uphold the
compliance of the Improvements with any Requirements of Law), then all amounts
reasonably paid or incurred by Beneficiary for the expense of any such action,
suit or other proceeding or to protect its rights therein (whether or not it is
made or becomes a party thereto) or otherwise to enforce or defend the rights
and Lien created by this Deed to Secure Debt, shall be paid by Grantor upon
demand together with interest at the Default Rate from the date of the payment
or incurring thereof to the date of repayment, and any such amount and the
interest thereon shall be a Lien on the Mortgaged Property, prior to any right,
or right to, interest in, or claim upon the Mortgaged Property attaching or
accruing subsequent to or otherwise subordinate to the Lien of this Deed to
Secure Debt, and the same shall be deemed to be secured hereby. All other
amounts reasonably paid, advanced or incurred by Beneficiary in order to secure
and protect the Lien of this Deed to Secure Debt or other security provided
hereunder shall be a like Lien on the Mortgaged Property and be
-47-
deemed to be secured hereby.
SECTION 5.15. Expenses of Collection. Grantor will upon demand pay
----------------------
to Beneficiary the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and the reasonable fees and expenses
of any experts and agents, which Beneficiary may incur in connection with (i)
the collection of the Secured Obligations, (ii) the enforcement and
administration of this Deed to Secure Debt, (iii) the custody or preservation
of, or the sale of, collection from, or other realization upon, any of the
Mortgaged Property, (iv) the exercise or enforcement of any of the rights of
Beneficiary or any Secured Party hereunder or (v) the failure by Grantor to
perform or observe any of the provisions hereof. All amounts payable by Grantor
under this Section 5.16 shall be due upon demand and shall be part of the
Secured Obligations. Grantor's obligations under this Section shall survive the
termination of this Deed to Secure Debt and the discharge of Grantor's other
obligations hereunder.
SECTION 5.16. Business Days. In the event any time period or any
-------------
date provided in this Deed to Secure Debt ends or falls on a day other than a
Business Day, then such time period shall be deemed to end and such date shall
be deemed to fall on the next succeeding Business Day, and performance herein
may be made on such Business Day, with the same force and effect as if made on
such other day.
SECTION 5.17. Relationship. The relationship of Beneficiary to
------------
Grantor hereunder is strictly and solely that of lender and borrower and grantor
and beneficiary and nothing contained in the Credit Agreement, this Deed to
Secure Debt or any other document or instrument now existing and delivered in
connection therewith or otherwise in connection with the Secured Obligations is
intended to create, or shall in any event or under any circumstance be construed
as creating a partnership, joint venture, tenancy-in-common, joint tenancy or
other relationship of any nature whatsoever between Beneficiary and Grantor
other than as lender and borrower and grantor and beneficiary.
SECTION 5.18. Reconveyance Upon Payment of Secured Obligations. In
------------------------------------------------
the event that Grantor shall cause to be paid and performed in full all of the
Secured Obligations, Beneficiary shall release the Mortgaged Property from the
Lien of this
-48-
Deed to Secure Debt and reconvey (without warranty by or recourse against
Beneficiary or any Bank) the Mortgaged Property to Grantor.
SECTION 5.19. Concerning Beneficiary.
----------------------
5.19.1 Beneficiary shall be entitled to rely upon any written notice,
statement, certificate, order or other document or any telephone message
believed by it to be genuine and correct and to have been signed, sent or made
by the proper person, and, with respect to all matters pertaining to this Deed
to Secure Debt and its duties hereunder, upon advice of counsel selected by it.
5.19.2 With respect to any of its rights and obligations as a Bank,
Beneficiary shall have and may exercise the same rights and powers hereunder.
The term "Banks," "Bank" or any similar terms shall, unless the context clearly
otherwise indicates, include Beneficiary in its individual capacity as a Bank.
Beneficiary may accept deposits from, lend money to, and generally engage in any
kind of banking, trust or other business with Grantor or any entity related to
or affiliated with Grantor to the same extent as if Beneficiary were not acting
as collateral agent.
5.19.3 If any item of Mortgaged Property also constitutes collateral
granted to Beneficiary under any other deed of trust, mortgage, deed to secure
debt, security agreement, pledge or instrument of any type, in the event of any
conflict between the provisions of this Deed to Secure Debt and the provisions
of such other deed of trust, mortgage, security agreement, pledge or instrument
of any type in respect of such collateral, Beneficiary, in its sole discretion,
shall select which provision or provisions shall control.
5.19.4 Beneficiary has been appointed as collateral agent pursuant to
the Credit Agreement. The actions of Beneficiary hereunder are subject to the
provisions of the Credit Agreement. Beneficiary shall have the right hereunder
to make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking action (including, without
limitation, the release or substitution of Mortgaged Property), in accordance
with this Deed to Secure Debt and the Credit Agreement. Beneficiary may resign
and a successor Beneficiary may be appointed in the manner provided in the
Credit Agreement. Upon the acceptance of any appoint-
-49-
ment as Beneficiary by a successor Beneficiary, that successor Beneficiary shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Beneficiary under this Deed to Secure Debt, and the
retiring Beneficiary shall thereupon be discharged from its duties and
obligations under this Deed to Secure Debt. After any retiring Beneficiary's
resignation, the provisions of this Deed to Secure Debt shall inure to its
benefit as to any actions taken or omitted to be taken by it under this Deed to
Secure Debt while it was Beneficiary.
SECTION 5.20. Future Advances. This Deed to Secure Debt may secure
---------------
future advances. The maximum aggregate amount of all advances of principal under
the Credit Agreement that may be outstanding hereunder at any time is
$75,000,000.
SECTION 5.21. Waiver of Stay.
--------------
5.21.1 Grantor agrees that in the event that Grantor or any property
or assets of Grantor shall hereafter become the subject of a voluntary or
involuntary proceeding under the Bankruptcy Code or Grantor shall otherwise be a
party to any federal or state bankruptcy, insolvency, moratorium or similar
proceeding to which the provisions relating to the automatic stay under Section
362 of the Bankruptcy Code or any similar provision in any such law is
applicable, then, in any such case, whether or not Beneficiary has commenced
foreclosure proceedings under this Deed to Secure Debt, Beneficiary shall be
entitled to relief from any such automatic stay as it relates to the exercise of
any of the rights and remedies (including, without limitation, any foreclosure
proceedings) available to Beneficiary as provided in this Deed to Secure Debt or
in any other Security Document.
5.21.2 Beneficiary shall have the right to petition or move any court
having jurisdiction over any proceeding described in subsection 5.21.1 for the
purposes provided therein, and Grantor agrees (i) not to oppose any such
petition or motion and (ii) at Grantor's sole cost and expense, to assist and
cooperate with Beneficiary, as may be requested by Beneficiary from time to
time, in obtaining any relief requested by Beneficiary, including, without
limitation, by filing any such petitions, supplemental petitions, requests for
relief, documents, instruments or other items from time to time requested by
Beneficiary or any such court.
-50-
SECTION 5.22. Continuing Security Interest; Assignment. This Deed
----------------------------------------
to Secure Debt shall create a continuing security interest in the Mortgaged
Property and shall (i) be binding upon Grantor, its successors and assigns and
(ii) inure, together with the rights and remedies of Beneficiary hereunder, to
the benefit of Beneficiary and the other Secured Parties and each of their
respective successors, transferees and assigns; no other Persons (including,
without limitation, any other creditor of Grantor) shall have any interest
herein or any right or benefit with respect hereto. Without limiting the
generality of the foregoing clause (ii), any Bank may assign or otherwise
transfer any indebtedness held by it secured by this Deed to Secure Debt to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Bank, herein or otherwise, subject
however, to the provisions of the Credit Agreement and any applicable Interest
Rate Agreement.
SECTION 5.23. Obligations Absolute. All obligations of Grantor
--------------------
hereunder shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of Grantor or any other
Credit Party;
(ii) any lack of validity or enforceability of the Credit
Agreement, any Interest Rate Agreement, any Letter of Credit, any other
Credit Document, or any other agreement or instrument relating thereto;
(iii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement, any Interest Rate Agreement, any Letter of Credit, any other
Credit Document, or any other agreement or instrument relating thereto;
(iv) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to any
departure from any guarantee, for all or any of the Secured Obligations;
(v) any exercise or non-exercise, or any waiver of any right,
remedy, power or privilege under or in respect
-51-
of this Deed to Secure Debt, any Interest Rate Agreement or any other
Credit Document except as specifically set forth in a waiver granted
pursuant to the provisions of Section 5.8 hereof; or
(vi) any other circumstance or happening whatsoever that is
similar to any of the foregoing.
SECTION 5.24. Beneficiary's Right to Sever Indebtedness.
-----------------------------------------
5.24.1 Grantor acknowledges that (a) the Mortgaged Property does not
constitute the sole source of security for the payment and performance of the
Secured Obligations and that the Secured Obligations are also secured by
property of Grantor in other jurisdictions (all such property, collectively, the
"Collateral"), (b) the number of such jurisdictions and the nature of the
transaction of which this instrument is a part are such that it would have been
impracticable for the parties to allocate to each item of Collateral a specific
loan amount and to execute in respect of such item a separate credit agreement
or interest rate agreement and (c) Grantor intends that Beneficiary have the
same rights with respect to the Mortgaged Property, in foreclosure or otherwise,
that Beneficiary would have had if each item of Collateral had been secured,
mortgaged or pledged pursuant to a separate credit agreement or interest rate
agreement, mortgage or security document. In furtherance of such intent,
Grantor agrees that Beneficiary may at any time by notice (an "Allocation
Notice") to Grantor allocate a portion (the "Allocated Indebtedness") of the
Secured Obligations to the Mortgaged Property and sever from the remaining
Secured Obligations the Allocated Indebtedness. From and after the giving of an
Allocation Notice with respect to the Mortgaged Property, the Secured
Obligations hereunder shall be limited to the extent set forth in the Allocation
Notice and (as so limited) shall, for all purposes, be construed as a separate
loan obligation of Grantor unrelated to the other transactions contemplated by
the Credit Agreement, any Interest Rate Agreement, any other Credit Document or
any document related to any thereof. To the extent that the proceeds on any
foreclosure of the Mortgaged Property shall exceed the Allocated Indebtedness,
such proceeds shall belong to Grantor and shall not be available hereunder to
satisfy any Secured Obligations of Grantor other than the Allocated
Indebtedness. In any action or proceeding to foreclose the Lien of this Deed to
Secure Debt or in
-52-
connection with any power of sale foreclosure or other remedy exercised under
this Deed to Secure Debt commenced after the giving by Beneficiary of an
Allocation Notice, the Allocation Notice shall be conclusive proof of the limits
of the Secured Obligations hereby secured, and Grantor may introduce, by way of
defense or counterclaim, evidence thereof in any such action or proceeding.
Notwithstanding any provision of this Section 5.24, the proceeds received by
Beneficiary pursuant to this Deed to Secure Debt shall be applied by Beneficiary
in accordance with the provisions of subsection 3.3.3 hereof.
5.24.2 Grantor hereby waives to the greatest extent permitted under
law the right to a discharge of any of the Secured Obligations under any statute
or rule of law now or hereafter in effect which provides that foreclosure of the
Lien of this Deed to Secure Debt or other remedy exercised under this Deed to
Secure Debt constitutes the exclusive means for satisfaction of the Secured
Obligations or which makes unavailable a deficiency judgment or any subsequent
remedy because Beneficiary elected to proceed with a power of sale foreclosure
or such other remedy or because of any failure by Beneficiary to comply with
laws that prescribe conditions to the entitlement to a deficiency judgment. In
the event that, notwithstanding the foregoing waiver, any court shall for any
reason hold that Beneficiary is not entitled to a deficiency judgment, Grantor
shall not (a) introduce in any other jurisdiction such judgment as a defense to
enforcement against Grantor of any remedy in the Credit Agreement, any Interest
Rate Agreement or any other Credit Document or (b) seek to have such judgment
recognized or entered in any other jurisdiction, and any such judgment shall in
all events be limited in application only to the state or jurisdiction where
rendered.
5.24.3 In the event any instrument in addition to the Allocation
Notice is necessary to effectuate the provisions of this Section 5.24,
including, without limitation, any amendment to this Deed to Secure Debt, any
substitute promissory note or affidavit or certificate of any kind, Beneficiary
may execute, deliver or record such instrument as the attorney-in-fact of
Grantor. Such power of attorney is coupled with an interest and is irrevocable.
5.24.4 Notwithstanding anything set forth herein to the contrary, the
provisions of this Section 5.24 shall be effective only to the maximum extent
permitted by law.
IN WITNESS WHEREOF, Grantor has caused this Deed to Secure Debt to be
duly executed and delivered under seal the day and year first above written.
▇▇▇▇▇▇ PRODUCTS COMPANY,
Grantor
By:
---------------------------------
Name:
Title:
Attest:
-----------------------------
Name:
Title:
Signed, sealed and delivered
in the presence of:
Witness
______________________________
Name:
_____________________________
Notary Public
[Notary Seal]
Schedule A
----------
[Legal Description]
[To come from Title Policy]
Schedule B
----------
[Prior Liens]
[To come from Title Policy]