THIS INSTRUMENT PREPARED BY
AND RETURN TO:
Geoffrey G. Young, Esquire
Witt, Gaither & Whitaker, P.C.
1100 American National Bank Building
Chattanooga, Tennessee 37402
TENNESSEE DEED OF TRUST AND SECURITY AGREEMENT
THIS INSTRUMENT ALSO IS A UNIFORM COMMERCIAL CODE FINANCING
STATEMENT WHICH IS BEING FILED AS A FIXTURE FILING IN ACCORDANCE
WITH T.C.A. 47-9-402(6). SIGNAL APPAREL COMPANY, Inc. IS THE
RECORD OWNER OF THE REAL ESTATE DESCRIBED HEREIN. THE COLLATERAL
IS DESCRIBED IN THIS INSTRUMENT, AND SOME OF THE COLLATERAL
DESCRIBED HEREIN IS OR IS TO BECOME FIXTURES ON THE REAL ESTATE.
THE NAME AND ADDRESS OF THE DEBTOR ("GRANTOR" HEREIN) AND SECURED
PARTY ("GRANTEE" HEREIN) ARE:
NAME AND ADDRESS OF DEBTOR
Signal Apparel Company, Inc.
200 Manufacturers Road
P. 0. Box 4296
Chattanooga, Tennessee 37405
NAME AND ADDRESS OF SECURED PARTY
Walsh Greenwood & Co.,
One East Putnam Avenue
Greenwich, Connecticut 06830
THE MAXIMUM PRINCIPAL INDEBTEDNESS FOR TENNESSEE RECORDING
TAX PURPOSES IS $15,000,000.00.
THIS TENNESSEE DEED OF TRUST AND SECURITY AGREEMENT IS GIVEN
FOR COMMERCIAL PURPOSES AND SECURES OBLIGATORY ADVANCES OF
CREDITOR PURSUANT TO T.C.A. 47-28-101, ETC.
THIS TENNESSEE DEED OF TRUST AND SECURITY AGREEMENT (the
"DEED OF TRUST") is made and entered into on this nd day of
March , 1995, by and between SIGNAL APPAREL COMPANY, INC.,
having an address at 200 Manufacturers Road, Chattanooga,
Tennessee 37405, parties of the first part (hereinafter sometimes
collectively called "GRANTOR"), MILLIGAN-REYNOLDS TITLE GUARANTY,
INC., a Tennessee, corporation, located at 724 Cherry Street,
Chattanooga, Tennessee 37402 ("TRUSTEE") , and WALSH GREENWOOD &
CO., a New York limited partnership, located at
One East Putnam Avenue, Greenwich, CT 06830, individually and as
Agent for certain other Lenders, ("GRANTEE").
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WITNESSETH, that for and in consideration of the sum of Ten
and 00/100 Dollars ($10.00), and other valuable considerations,
the receipt and sufficiency of which are hereby acknowledged, and
in order to secure the indebtedness and other obligations
hereinafter set forth, Grantor does hereby grant, bargain, sell,
convey, assign, transfer, pledge, and set over unto Trustee, and
the successors and assigns of Trustee, all of its right, title,
and interest with respect to the following described property
located in Hamilton County, Tennessee and all other interests of
Grantor in such land, including without limitation all estates,
easements, rights, improvements and fixtures, relating to,
arising from or now or hereafter located on such land
(hereinafter referred to collectively as the "MORTGAGED
PROPERTY"):
1. All right, title and interest of Grantor in, under and to
those certain tracts of land more particularly described in
EXHIBIT A attached hereto and by this reference made a part
hereof (hereinafter collectively referred to as the "LAND"); and
2. All buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land, and all gas and
electric fixtures, radiators, heaters, engines and machinery,
boilers, lifts, elevators and motors, plumbing and heating
fixtures, carpeting and other floor coverings, water heaters, air
conditioning apparatus, refrigerating plants, which are or shall
be attached to said buildings, structures or improvements and all
other fixtures of every kind and nature whatsoever now or
hereafter owned by Grantor and located in, on or about, or used
or intended to be used with or in connection with the use,
operation or enjoyment of the Mortgaged Property, including all
extensions, accessions, additions, improvements, betterments,
renewals and replacements, substitutions, or proceeds from a
permitted sale of any of the foregoing, and all building material
and supplies of every kind now or hereafter placed or located on
the Land, all of which are hereby declared and shall be deemed to
be fixtures and accessions to the Land and a part of the
Mortgaged Property as between the parties hereto and all persons
claiming by, through or under them, and which shall be deemed to
be a portion of the security for the indebtedness herein
described (hereinafter referred to as the "IMPROVEMENTS") and to
be secured by this Deed of Trust; and
3. All right, title and interest of the Grantor in, under and
to all easements, rights-of-way, strips of land, vaults, streets,
ways, alleys, passages, sewer rights, waters, water courses,
water rights and powers, minerals, flowers, shrubs, crops, trees,
timber and other emblements now or hereafter located on the Land
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or under or above the same or any part or parcel thereof, and all
estates, rights, titles, interests, privileges, liberties,
tenements, hereditaments and appurtenances, reversions, and
remainders whatsoever, in any way belonging, relating or
appertaining to the Mortgaged Property or any part thereof, or
which hereafter shall in any way belong, relate or be appurtenant
thereto, whether now owned or hereafter acquired by Grantor; and
4. All present and future leases, rents, issues, profits and
revenues of the Mortgaged Property from time to time accruing
(including without limitation all payments under leases or
tenancies, proceeds of insurance, condemnation payments, tenant
security deposits and escrow funds), and all of the estate, right
title, interest, property, possession, claim and demand
whatsoever at law, as well as in equity, of Grantor, in and to
the same, reserving only the right to Grantor to collect the same
so long as Grantor is not in default hereunder; and
5. All awards, compensation and settlements in lieu thereof
made as a result of (i) the taking by power of eminent domain of
the whole or any part of the Mortgaged Property, including any
awards for damages sustained to the Mortgaged Property, for a
temporary taking, change of grade of streets or taking of access,
or (ii) any other injury to, taking of, or decrease in the value
of the Mortgaged Property; and
6. All proceeds of hazard or other insurance policies
maintained with respect to the Mortgaged Property or the
Improvements (whether or not Grantee is the loss payee thereof).
TO HAVE AND TO HOLD, the Mortgaged Property, together with
all the hereditaments and appurtenances thereto belonging or in
anyway appertaining unto the said Trustee, its successors in
trust and assigns, in fee simple forever, and the said Grantor
does hereby covenant with the said Trustee, its successors in
trust and assigns, that Grantor is lawfully seized in fee of the
estate described in EXHIBIT "A," hereto attached, that Grantor
has a good right to sell and convey the same; that the same is
EXHIBIT "A," hereto attached; that Grantor has a good right to
sell and convey the same; that the same is unencumbered, except
by a Deed of Trust granted to BNY Financial Corporation and
recorded in the Register's Office of Claiborne, County, Tennessee
at Book and Page to which this Deed of Trust and the
rights of Grantee are in all respects subordinate, and that the
title and quiet possession thereto Grantor will and Grantor's
successors shall warrant and forever defend against the lawful
claims of all persons whomsoever, except those of BNY Financial
Corporation.
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BUT THIS IS A TRUST DEED, and is made for the following uses
and purposes, and none other; that is to say:
(a) to secure the full performance by the Grantor of all
covenants and agreements contained herein;
(b) to secure the full performance of all terms, conditions and
agreements contained in that certain Credit Agreement dated as of
March , 1995, among the Grantee, the Grantor and certain of
Grantor's subsidiaries (the "CREDIT AGREEMENT") (to which Credit
Agreement reference is hereby made for all of its terms,
provisions and conditions), in particular: (i) that all payments
of principal and interest due under the Credit Agreement shall be
payable at the address provided in the Credit Agreement or at
such other place as the Grantee or his successors or assigns may
designate in writing; (ii) that the balance of the indebtedness
payable under the Credit Agreement, if not sooner paid, is due
and payable as specified therein; and (iii) that the foregoing
and all rights and obligations of Grantee hereunder are subject
in all respects to a certain Intercreditor Agreement, dated March
, 1995 among Grantor, certain subsidiaries of Grantor, Grantee,
BNY Financial Corporation ("BNY") and Greyrock Capital Group,
Inc. ("GREYROCK")(the "INTERCREDITOR AGREEMENT") (capitalized
terms not defined herein shall have the meanings attributed to
them in the Credit Agreement and the Intercreditor Agreement);
(c) subject to the Intercreditor Agreement, to secure the full
and prompt payment of all sums now owing, and all sums which at
any time hereafter may be owing by the Grantor to Grantee under
this Deed of Trust, whether such sums are advanced by Grantee to
the Grantor or expended by Grantee for the Grantor's account or
benefit; and
(d) to secure the payment of all court costs, expenses and costs
of whatever kind incident to the collection of any indebtedness
secured hereby and the enforcement or protection of the lien of
this conveyance and the enforcement of any judgment arising
therefrom, including reasonable attorneys' fees.
(All of the, indebtedness and obligations set forth in (a)
through (d) above are sometimes hereinafter referred to as the
"INDEBTEDNESS").
NOW, THEREFORE, so long as any part of the Indebtedness
shall remain unpaid, Grantor covenants, agrees, represents and
warrants as follows:
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ARTICLE I
COVENANTS AND AGREEMENTS
Subject in all respects to the requirements of the Intercreditor
Agreement, Grantor does hereby covenant, warrant and represent to
and agree with Grantee as follows:
1.1 PAYMENT AND PERFORMANCE. Grantor shall punctually and
properly pay all of Grantor's Indebtedness when due and shall
perform, keep, observe and meet all of its covenants, agreements,
liabilities, obligations and undertakings under the Credit
Agreement in accordance with its terms.
1.2 INSURANCE. Grantor will procure and maintain in effect at
all times fire, extended coverage, vandalism, malicious mischief
and other hazard insurance with respect to the Mortgaged Property
and public liability insurance with such insurance companies and
in forms and amounts as are reasonably acceptable to and approved
by Grantee against loss or destruction on account of fire,
windstorm or other such hazards, casualties and contingencies
customarily insured against, and injury to the person or
property, including, without limiting the generality thereof,
business interruption insurance in an amount equal to one (1)
year's overhead and net profit. All insurance policies are to
list Grantee as an additional named insured as to the Mortgaged
Property only, and at any time and from time to time, Grantor
shall deliver certificates of the insurers evidencing the
coverage required by this Section 1.2 and the expiration dates of
such coverage. Grantor shall obtain a new policy as replacement
for any expiring policy at least thirty (30) days before the date
of such expiration. Upon the payment in full of the Indebtedness
and the termination of this Deed of Trust, Grantee agrees to
execute and deliver to Grantor any and all documents required by
Grantor's insurers to effect a termination of Grantee's interest.
All such policies of insurance shall contain waiver of
subrogation clauses, and shall have attached thereto a
noncontributory grantee clause or its equivalent in favor of
Grantee with cancellation only upon at least thirty (30) days'
prior written notice to Grantee.
Subject to the rights of the BNY and Greyrock under the
Intercreditor Agreement, each insurance company hereby is
authorized and directed to make payment for all losses to Grantee
and Grantor jointly, unless an Event of Default exists (or any
other event which with the giving of notice or the lapse of time
or both would constitute an Event of Default), in which case each
insurance company is hereby authorized and directed to make
payment directly to Grantee upon certification from Grantee that
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an Event of Default (or any other event which ,with the giving of
notice or the lapse of time or both would constitute an Event of
Default) has occurred. If an Event of Default does not exist (or
any other event which with the giving of notice or the lapse of
time or both would constitute an Event of Default) and if the
Grantor provides Grantee with evidence reasonably satisfactory to
Grantee that all payments due to Grantee under the Credit
Agreement and this Deed of Trust punctually can be made and
satisfied during the period of such restoration, the Grantee
agrees to endorse and transfer such proceeds to an escrow account
from which, at the option of Grantor, such proceeds shall be
disbursed for the restoration of the Mortgaged Property to the
reasonable satisfaction of Grantee or for payment of all or any
part of the Indebtedness. If Grantor cannot provide such evidence
to Grantee or if an Event of Default exists (or any other event
which with the giving of notice or the lapse of time or both
would constitute an Event of Default), the Grantee, at its sole
option, may (a) apply such payment to the Indebtedness,
including, without limitation, his expenses in collecting and
administering such payment, whether or not such Indebtedness is
then due and payable, with any remaining balance to be paid to
the Grantor or the person or entity lawfully entitled thereto, or
(b) deposit such payment into an escrow account from which such
proceeds shall be disbursed solely for the restoration of the
Mortgaged Property to the reasonable satisfaction of Grantee.
The Grantor will not do or suffer to be done or allow or permit
any other user of the Mortgaged Property to do anything which
will increase the risk of fire or other hazard to the Mortgaged
Property or any part thereof without first causing such increased
risk to be fully and adequately covered by insurance. In the
event of foreclosure of this Deed of Trust, or other transfer of
title of the Mortgaged Property in extinguishment of the
Indebtedness secured hereby, all right, title and interest of the
Grantor in and to any insurance policies then in force shall pass
to the purchaser or grantee of the Mortgaged Property.
In the event that, prior to the extinguishment of the
Indebtedness, there exists any claim under any hazard insurance
policies which shall not have been paid and distributed in
accordance with the terms of this Deed of Trust, and any such
claims shall be paid after the extinguishment of the Indebtedness
secured hereby, and the foreclosure of this Deed of Trust,
transfer of title to the Mortgaged Property, or extinguishment of
the Indebtedness secured hereby for an amount less than the total
of the unpaid principal balance together with accrued interest
plus costs of litigation, reasonable attorneys' fees, title
insurance and all other costs and expenses incurred by Grantee in
any action involving such extinguishment then, without
limitation, that portion of the payment in satisfaction of the
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claim which is equal to the difference between the total amount
of the aforementioned amounts due Grantee and the amount in
extinguishment of the Indebtedness secured hereby received by
Grantee shall belong to and be the property of the Grantee and
shall be paid to the Grantee, and the Grantor hereby assigns,
transfers and sets over to the Grantee all of the Grantor's
right, title and interest in and to such sum. The balance, if
any, shall belong to Grantor. Notwithstanding the above, Grantor
shall retain an interest in the insurance policies described
above during any redemption period.
1.3 TAXES AND ASSESSMENTS. Grantor will promptly pay when due
all taxes, assessments, levies, dues and charges of every type or
nature assessed against the Mortgaged Property, and any claim,
lien or encumbrance against the Mortgaged Property which may be
or become prior to the lien of this Deed of Trust, other than the
liens for the benefit of BNY and Greyrock as to which they shall
have priority over Grantee under the Intercreditor Agreement.
1.4 TAXES ON DEED OF TRUST. If at any time any law shall be
enacted imposing or authorizing the imposition of any tax upon
the Grantee or Trustee as a result of the existence the Credit
Agreement (other than relating to income derived therefrom), or
this Deed of Trust, or upon any rights, titles, liens, or
security interests created hereby, or any part thereof, Grantor
shall immediately pay all such taxes; provided that, if it is
unlawful for Grantor to pay such taxes, Grantee may pay such
taxes and further, that if it shall be unlawful for Grantor
either to pay such taxes or to reimburse Grantee therefor, or if
such payment or reimbursement would be usurious, or would subject
the Grantee to any penalty, Grantor shall not be required to make
such payments or reimbursement.
1.5 EMINENT DOMAIN. Grantor hereby transfers, sets over, and
assigns to Grantee all judgments, awards of damages and
settlements hereafter made as a result or in lieu of any taking
of the Mortgaged Property or any part thereof under the power of
eminent domain, or for any damage (whether caused by such taking
or otherwise) to the Mortgaged Property or any part thereof, or
to any rights appurtenances thereto, including any award for
change of grade of streets. Subject to the rights of BNY and
Greyrock under the Intercreditor Agreement, Grantee is hereby
authorized, but not required, in behalf and in the name of
Grantor, to execute and deliver valid acquittances for, and to
appeal from, any such judgments or awards. Grantee may apply all
such sums or any part thereof so received, after the payment of
all of its expenses, including costs and reasonable attorney's
fees, on the Indebtedness secured hereby, whether due or not,
in such manner as it elects or, at its option, the entire amount
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or any part therefor so received may be released to the Grantor
or other party lawfully entitled thereto.
1.6 REPAIR, WASTE, ALTERATIONS, ETC. Grantor shall keep the
Mortgaged Property in good operating order, repair and condition
and shall not commit or permit any removal or waste thereof,
normal wear and tear excepted. Grantor shall make promptly all
necessary repairs, renewals and replacements to the Mortgaged
Property.
1.7 ADVANCES BY GRANTEE TO PROTECT COLLATERAL. If the Grantor
shall default in paying taxes, maintaining insurance or making
repairs, the Grantee may, at its discretion, but is not required
to, advance and pay such sums as may be proper to satisfy taxes,
maintain insurance and make repairs, and protect and preserve the
Mortgaged Property, and such amounts so paid shall be treated as
part of the expense of administering this trust, shall be repaid
by Grantor on demand with interest at the Default Rate
(hereinafter defined), and shall be secured by the lien hereof;
however, the making of any such payment by Grantee shall not be
construed as a waiver of any default of Grantor.
1.8 NO MECHANICS' LIENS. Grantor shall promptly discharge all
claims for labor performed and material furnished to the
Mortgaged Property, and shall not suffer any lien of mechanics or
materialmen to be filed against any part of the Mortgaged
Property. Grantee has not consented and will not consent to any
contract or to any work or to the furnishing of any materials
which might be deemed to create a lien or liens superior to the
lien of this instrument, either under Section* 66-11-108 of
Tennessee Code Annotated or otherwise.
1.9 PROTECTION AND PRIORITY OF LIEN. Grantor shall not do
anything or suffer or permit anything to be done whereby the lien
and security interest of this Deed of Trust could be impaired.
Grantor shall pay such reasonable expenses and fees as may be
necessary in the protection of the Mortgaged Property and the
maintenance and execution of liens and security interests herein
granted. Any agreement hereafter made by Grantor and Grantee
pursuant to or regarding this Deed of Trust shall be superior to
the rights of the holder of any intervening lien or encumbrance.
1.10 COMPLIANCE WITH LAWS. Grantor, the Mortgaged Property and
the use thereof by Grantor shall comply with all laws, rules,
ordinances, regulations, covenants, conditions, restrictions,
orders and decrees of any governmental authority or court
applicable to Grantor or the Mortgaged Property and its use;
Grantor will not suffer or permit any violation thereof, and
Grantor shall pay all fees or charges of any kind in connection
therewith.
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1.11 FURTHER ASSURANCES. Grantor, upon the request of Grantee,
shall execute, acknowledge, deliver, and record such further
instruments and do such further acts as may be necessary,
desirable or proper to carry out the purposes of this instrument
and the Credit Agreement and to subject to the liens and security
interests created thereby any property intended by the terms
thereof to be covered thereby, including specifically, but
without limitation any renewals, additions, substitutions,
replacements, improvements, or appurtenances to the Mortgaged
Property.
1.12 NO PRIOR LIENS. This Deed of Trust shall not be
subordinate to any other lien, security interest, assignment of
leases or rents, or any other encumbrance affecting any of the
Mortgaged Property (each a "PRIOR LIEN"), other than to the
Grantee, a Deed of Trust granted to BNY Financial Corporation and
recorded in the Register's Office of Claiborne, County, Tennessee
at Book and Page and any other documents perfecting the
security interest of BNY in and to the Mortgaged Property, and as
provided in the Intercreditor Agreement. Should any such Prior
Lien exist at any time, in addition to any other rights of
Grantee hereunder or under the Credit Agreement, Grantee may, but
shall not be obligated to, pay any such indebtedness or to
perform any such obligations for the account of Grantor and any
sum so expended plus interest shall be added to the Indebtedness
secured hereby. Grantor shall pay to Grantee on demand all
amounts so expended by Grantee with interest on such amounts at
the Default Rate (hereinafter defined).
1.13 HAZARDOUS WASTES. (a) Grantor warrants, represents and
covenants:
(i) To the best of Grantor's knowledge, after
reasonable inquiry, but subject to all matters disclosed to
Grantee in the Phase I Site Assessment No. 54898.07 performed by
Clayton Environmental Consultants, Inc., dated May 20, 1994,
copies of which have been furnished Grantee, the Grantor, and
those holding the Mortgaged Property under Grantor, are in
substantial compliance with all laws and regulations relating to
pollution and environmental control applicable to the Mortgaged
Property. The Grantor will comply with all such laws and
regulations in the future the noncompliance with which would have
a material adverse effect on the business, assets properties or
condition (financial or otherwise) of the Grantor. Specifically,
the Mortgaged Property is free from "HAZARDOUS SUBSTANCES" as
defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., as
amended, and the regulations promulgated thereunder (other than
substances reported to agencies in the normal course of business
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in material safety data sheets or the like) ("HAZARDOUS
SUBSTANCES"); no portion of the Mortgaged Property is subject to
federal, state, or local regulation or liability because of the
presence Of stored, leaked or spilled petroleum products, waste
materials or debris, "PCB's" or PCB items (as defined in 40
C.F.R. Section 763.63) underground storage tanks, "ASBESTOS" (as
defined in 40 C.F.R. Section 763.63) or the past or present
accumulation, spillage or leakage of any such substances; and the
Grantor is in substantial compliance with all federal, state and
local requirements relating to protection of health or the
environment in connection with the operation of its business; and
the Grantor knows of no complaint or investigation regarding the
Mortgaged Property. Further, the Grantor is unaware of any
investigation, threat or concern by any entity regarding
environmental issues involving the Mortgaged Property. There are
not now any outstanding citations, notices or orders of violation
or noncompliance issued to Grantor or relating to their business
assets, property or leaseholds under any such laws, rules or
regulations, nor any conditions which, if known by the proper
authorities, could result in any of the foregoing.
(ii) If Grantee receives any notice of (A) the
happening of an event involving the use, spill, discharge or
cleanup of any Hazardous Substance or known hazardous or toxic
waste, including, but not limited to any oil or other petroleum
products, asbestos, PCB'S, PCB items, or pesticide on or about
any property of Grantor or caused by the Grantor, (a "HAZARDOUS
DISCHARGE") or (B) any complaint, order, citation or notice with
regard to air emissions, water discharges, noise omissions or any
other environmental, health or safety matter affecting the
Grantor or the Mortgaged Property or Grantor's operations or the
operations of any person holding the Mortgaged Property by or
through Grantor (an "ENVIRONMENTAL COMPLAINT") from any person or
property, including without limitation the Department of
Environmental Protection of the State in which the Mortgaged
Property is located ("DEP"), the United States Environmental
Protection Agency ("EPA"), the United States Army Corps of
Engineers (the "CORPS"), or the United States Coast Guard (the
"COAST GUARD"), then Grantor will give written notice of same to
Grantee within ten (10) days of receipt thereof and shall
promptly comply with its obligations under law with regard to
such Hazardous Discharge or Environmental Complaint.
(iii) Grantor and those holding the Mortgaged Property
under Grantor have, and will continue to have, all necessary
federal, state and local licenses, certificates and permits
relating to the Grantor, the persons holding the Mortgaged
Property and the Mortgaged Property, and they are in compliance
with all applicable federal, state and local laws, rules and
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regulations relating to air emissions, water discharges, noise
emissions, solid or liquid storage and disposal, hazardous or
toxic waste or substances and other environmental, health and
safety matters, the noncompliance with which would have a
material adverse effect on the business, assets properties or
condition (financial or otherwise) of the Grantor.
(b) Grantee shall have the right but not the obligation,
prior or subsequent to an Event of Default, without limiting
Grantee's other rights and remedies under this Deed of Trust, to
enter onto the Mortgaged Property or to take such other actions
as it deems necessary or advisable to clean up, move, resolve or
minimize the impact of, or otherwise deal with, any Hazardous
Substances on the Mortgaged Property following receipt of any
notice from any person or entity asserting the existence of any
Hazardous Substance pertaining to the Mortgaged Property or any
part thereof which, if true, could result in an order, suit,
imposition of a lien on the Mortgaged Property, or other action
and/or which, in Grantee's sole opinion, could jeopardize
Grantee's security under this Deed of Trust. All reasonable costs
and expenses paid or incurred by Grantee in the exercise of any
such rights shall be Indebtedness secured by this Deed of Trust
and shall be payable by Grantor upon demand.
(c) Grantor hereby agrees to defend, indemnify and hold the
Grantee harmless from and against any and all claims, losses,
liabilities, damages and expenses (including, without limitation,
cleanup costs and reasonable attorney's fees, including those
arising by reason of any of the aforesaid or an action against
the Grantee under this indemnity) arising directly or indirectly
from, out of, or by reason of, any Hazardous Discharge,
Environmental Complaint, or any environmental, health or safety
law governing the Grantor, its operations or the Mortgaged
Property or from any inaccuracy in the representation and
warranties given herein relating to environmental matters. This
indemnification shall survive the repayment of the Indebtedness
and satisfaction or release of this Deed of Trust.
(d) All warranties and representations above shall be deemed
to be continuing and shall remain true and correct in all
material respects until all of the Indebtedness has been paid in
full and any limitations period expires. Grantor's covenants
above shall survive any exercise of any remedy by Grantee under
the Credit Agreement or this Deed of Trust, including foreclosure
of this Deed of Trust (or deed in lieu thereof), even if, as a
part of such foreclosure or deed in lieu of foreclosure, the
Indebtedness is satisfied in full and/or this Deed of Trust shall
have been released.
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1.14 CONVEYANCE OF PREMISES: ACCELERATION OF MATURITY. Subject
to the rights of BNY and Greyrock under the Intercreditor
Agreement, in the event the Mortgaged Property or any part
thereof, or any interest therein, are sold, conveyed,
transferred, mortgaged, hypothecated, leased, encumbered or
disposed of without the prior written consent of Grantee, or if
any interest in Grantor is sold, conveyed, assigned, pledged or
transferred without the prior written consent of Grantee, then at
the sole option of Grantee, the Grantee may declare the entire
Indebtedness immediately due and payable without prior notice to
Grantor and Grantee may invoke any of the default remedies
provided in this Deed of Trust. Grantee shall not be obligated to
consent to any encumbrance, sale, contract, lease, or other
transfer (all said encumbrances, sales, contracts, leases, and
other transfers described hereinabove being collectively referred
to as a "PROHIBITED TRANSFER"), and Grantee's consent may be
withheld regardless of whether any Prohibited Transfer may or may
not impair Grantee's security or whether or not it may or may not
be reasonable (commercially or otherwise) for Grantee to consent
to any Prohibited Transfer. Without limiting the foregoing,
Grantee's consent may, at the sole option of Grantee, be
conditioned upon (by way of illustration only and not being
limited to): the payment of an assumption fee, an increase in the
interest rate payable under the Credit Agreement, an approval of
the credit of any such grantee, vendee, optionee, or transferee,
a management contract acceptable to Grantee, with a manager
acceptable to Grantee, an assignment to Grantee of any security
given to Grantor in connection with the transaction, including
without limitation, any purchase money second mortgage, and/or a
change in any of the, other terms and condition of this Deed of
Trust or in any of the Credit Agreement. Consent as to any one
transaction shall not be deemed to be a waiver of the right to
require consent to future or successive transactions. Any change
in the legal or equitable title of the Mortgaged Property or in
the ownership of any interest in the Grantor, whether or not of
record and whether or not for consideration, shall be deemed a
transfer of an interest in the Mortgaged Property and a
Prohibited Transfer.
1.15 SUITS TO PROTECT THE MORTGAGED PROPERTY. Subject to the
terms of the Intercreditor Agreement, Grantee shall have power to
institute and maintain such suits and proceedings as it may deem
expedient (a) to prevent any impairment of the Mortgaged Property
by any acts which may be unlawful or constitute a default under
this Deed of Trust (b) to preserve of protect its interest in the
Mortgaged Property and in the rents, issues, proceeds and profits
thereof, and (c) to contest the enforcement of or compliance with
any legislation of other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid, if the
enforcement of or compliance with such enactment, rule or order
12
would impair the security hereunder or be prejudicial to the
interest of Grantee.
ARTICLE II
EVENTS OF DEFAULT
The occurrence of any one or more of the following events
shall be deemed to be an Event of Default under this Deed of
Trust notwithstanding any applicable grace period or notice and
cure period. A "DEFAULT" under this Deed of Trust shall mean the
continued existence of an Event of Default beyond the expiration
of any (applicable grace period or notice and cure period
2.1 FAILURE TO PAY INDEBTEDNESS. If Grantor shall fail to pay
the Indebtedness promptly when the same become due, or if the
Grantor shall fail to pay any sum necessary to satisfy and
discharge taxes and assessments promptly when due, or to maintain
insurance or repairs, or the necessary expense of protecting the
Mortgaged Property and executing this trust; or
2.2 DEFAULT UNDER OTHER LIENS. If any of the Mortgaged Property
be levied upon or attached by any legal process, or if there
shall occur any default under or with respect to any Prior Lien,
or if the holder of any lien or security interest on the
Mortgaged Property institutes foreclosure or other proceedings
for the enforcement of its remedies thereunder; or
2.3 BANKRUPTCY OR INSOLVENCY. If Grantor, or any other owner of
the Mortgaged Property, or any guarantor of any of the
Indebtedness, shall voluntarily become a party to any insolvency,
bankruptcy, composition or reorganization procedure, or makes any
assignment for the benefit of creditors, or if any involuntary
bankruptcy, insolvency, composition, or other reorganization
proceedings be filed against Grantor, any other owner of the
Mortgaged Property, or any guarantor of the Indebtedness, and the
same shall not be dismissed within thirty (30) days after the
commencement of any such involuntary proceedings; or
2.4 ABANDONMENT. If Grantor abandons any material portion of
the Mortgaged Property; or
2.5 FALSE REPRESENTATION. If any statement, representation or
warranty in the Credit Agreement or this Deed of Trust, any
financial statement or any other writing delivered to Grantee in
connection with the Indebtedness or the loans or advances made to
Borrower is false, misleading or erroneous in any material
respect; or
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2.6 NONPERFORMANCE OF COVENANTS. If there shall occur any other
default in Grantor's covenants, warranties, agreements,
liabilities, obligations and undertakings as contained in this
Deed of Trust or the Credit Agreement, or contained in any other
instrument which now or hereafter secures the Indebtedness.
ARTICLE III
REMEDIES
Subject to the terms of the Intercreditor Agreement, if a
Default shall occur, Grantee may exercise any one or more of the
following remedies:
3.1 ACCELERATION. Grantee may declare the entire Indebtedness
immediately due and payable without notice or demand, the same
being hereby expressly waived.
3.2 POWER OF SALE. Grantee may require the Trustee and the
Trustee is hereby authorized and empowered, to enter and take
possession of the Mortgaged Property and to sell all or part of
the Mortgaged Property, at public auction, to the highest bidder
of cash, free from equity of redemption, and any statutory or
common law right of redemption, homestead, dower, marital share,
and all other exemptions, after giving notice of the time, place
and terms of such sale and of the Mortgaged Property to be sold,
by advertising the sale of the property for twenty-one (21) days
by three (3) weekly notices in some newspaper published in the
county and state where the Mortgaged Property is situated, which
notice may be given before or after entry by the Trustee.
The Trustee shall execute a conveyance to the purchaser in fee
simple and deliver possession to the purchaser, which the Grantor
warrants shall be given without obstruction, hindrance or delay.
Trustee may sell all or any portion of the Mortgaged Property,
together or in lots or parcels, and may execute and deliver to
the purchaser or purchasers of such property a conveyance in fee
simple. Trustee making such sale shall receive the proceeds
thereof and shall apply the same as follows: (a) first, the
payment of the expenses of making, maintaining and prosecuting
this trust, protection of the Mortgaged Property, including the
expense of any litigation and reasonable attorneys' fees, and
reasonable compensation to the Trustee; (b) second, to any
advancements made by the Trustee or the Grantee pursuant hereto,
with interest thereon; (c) third, to the payment of the
Indebtedness herein secured or intended so to be, in such order
as beneficiary shall elect, and any balance of said Indebtedness
may be the subject to immediate suit; and (d) fourth, should
there be any surplus, Trustee will pay it to the Grantor, or to
such person as may be legally entitled thereto. The sale or sales
by Trustee of less than the whole of the Mortgaged Property shall
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not exhaust the power of sale herein granted, and Trustee is
specifically empowered to make successive sale or sales under
such power until the whole of the Mortgaged Property shall be
sold; and if the proceeds of such sale or sales of less than the
whole of the Mortgaged Property shall be less than the aggregate
of the Indebtedness and the expenses thereof, this Deed of Trust
and the lien, security interest and assignment hereof shall
remain in full force and effect as to the unsold portion of the
Mortgaged Property; provided, however, that Grantor shall never
have any right to require the sale or sales of less than the
whole of the Mortgaged Property, but Grantee shall have the right
at its sole election, to request Trustee to sell less than the
whole of the Mortgaged Property. Grantee may bid and become the
purchaser of all or any part of the Mortgaged Property at any
such sale, and the amount of the Grantee's successful bid may be
credited on the Indebtedness.
3.3 JUDICIAL END OTHER RELIEF. Grantee or Trustee may proceed
by a suit or suits in equity or at law, whether for the specific
performance of any covenant or agreement herein contained or in
aid of the execution of any power herein granted, or for any
foreclosure hereunder or for the sale of the Mortgaged Property
under the judgment or decree of any court or courts of competent
jurisdiction.
3.4 ENTRY ON MORTGAGED PROPERTY; TENANCY AT WILL.
(a) Grantee may enter into and upon, inspect and/or take
possession of all or any part of the Mortgaged Property, and may
exclude Grantor, and all persons claiming under Grantor, and its
agents or servants, wholly or partly therefrom; and, holding the
same, Grantee may use, administer, manage, operate, and control
the Mortgaged Property and may exercise all rights and powers of
Grantor in the name, place and stead of Grantor, or otherwise, as
the Grantee shall deem best; and in the exercise of any of the
foregoing rights and powers Grantee shall not be liable to
Grantor for any loss or damage thereby sustained unless due
solely to the willful misconduct or gross negligence of Grantee.
(b) In the event of a trustee's or other foreclosure sale
hereunder and if at the time of such sale Grantor or any other
party (other than a tenant under a lease as to which the Grantee
shall have expressly subordinated the lien of this Deed of Trust
as hereinabove set out) occupies the portion of the Mortgaged
Property so sold or any part thereof, such occupant shall
immediately become the tenant of the purchaser at such sale,
which tenancy shall be a tenancy from day-to-day, terminable at
the will of such purchaser, at a reasonable rental per day based
upon the value of the portion of the Mortgaged Property so
occupied (but not less than any rental theretofore paid by such
tenant, computed on a daily basis). An action of forcible
15
detainer shall lie if any such tenant holds over after a demand
in writing for possession of such portion of the Mortgaged
Property.
3.5 RECEIVER. Grantee may make applicable to a court of
competent jurisdiction, as a matter of strict right and without
notice to Grantor or regard to the adequacy of the Mortgaged
Property for the repayment of the Indebtedness, for appointment
of a receiver of the Mortgaged Property, and Grantor does hereby
irrevocably consent to such appointment. Any such receiver shall
have all necessary and proper powers and duties of receivers in
similar cases, including the full power to rent, maintain and
otherwise operate the Mortgaged Property upon such terms as may
be approved by the court.
3.6 GRANTEE'S RIGHT TO PERFORM. Upon Grantor's failure to make
a payment or perform any act required by the Credit Agreement or
the Indebtedness, then at any time thereafter, and without notice
to or demand upon Grantor and without waiving or releasing any
other right, remedy or recourse. Grantee may (but shall not be
obligated to) make such payment or perform such act, for the
account of and at the expense of Grantor, and shall have the
right to enter upon the Mortgaged Property for such purpose and
to take all such action as Grantee may deem necessary or
appropriate.
3.7 REMEDIES CUMULATIVE, CONCURRENT AND NONEXCLUSIVE. If the
Indebtedness is now or hereafter further secured by chattel
mortgages, deeds of trust, security agreements, pledges,
contracts of guaranty, assignments of leases, or other security,
Grantee may, at its option, exhaust its remedies under any one or
more of said instruments and this Deed of Trust, either
concurrently or independently, and in such order as Grantee may
determine. Grantee shall have all rights, remedies and recourse
granted in the Credit Agreement or the Indebtedness and
available to it at law or equity (including, without limitation,
those granted by the Uniform Commercial Code), and same (a) shall
be cumulative, concurrent, and nonexclusive, (b) may be pursued
separately, successively or concurrently against Grantor or
others obligated for the Indebtedness, or any part thereof or
against any one or more of them, or against the Mortgaged
Property, at the sole discretion of Grantee, and (c) may be
exercised as often as occasion therefor shall arise, it being
agreed by Grantor that the exercise of or failure to exercise any
of same shall in no event be construed as a waiver or release
thereof or of any other right, remedy or recourse.
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ARTICLE IV
TRUSTEE
4.1 ACTION BY EITHER TRUSTEE. The Trustee named herein shall be
clothed with full power to act when action hereunder shall be
required, and to execute any conveyance of the Mortgaged
Property. In the event that the substitution of a Trustee shall
become necessary for any reason, the substitution of one trustee
in the place of those or any of those named herein shall be
sufficient. The term "TRUSTEE" shall be construed to mean
"TRUSTEE" whenever the sense requires. The necessity of the
Trustee herein named, or any successor in trust, making oath or
giving bond, is expressly waived.
4.2 EMPLOYMENT OF AGENTS. The Trustee, or any one acting in
their stead, shall have, in their discretion, authority to employ
all proper agents and attorneys in the execution of this trust
and/or in the conducting of any sale made pursuant to the terms
hereof, and to pay for such services rendered out of the proceeds
of the sale of the Mortgaged Property, should any be realized,
and if no sale be made or if the proceeds of sale be insufficient
to pay the same, then Grantor hereby undertakes and agrees to pay
the cost of such services rendered to said Trustee. Trustee
may rely on any document believed by them in good faith to be
genuine. All money received by Trustee shall, until used or
applied as herein provided, be held in trust, but need not be
segregated (except to the extent required by law), and Trustee
shall not be liable for interest thereon.
4.3 INDEMNIFICATION OF TRUSTEE. If the Trustee shall be made a
party to or shall intervene in any action or proceeding affecting
the Mortgaged Property or the title thereto, or the interest of
the Trustee or Grantee under this Deed of Trust, the Trustee and
Grantee shall be reimbursed by Grantor, immediately and without
demand, for all reasonable costs, charges and attorneys fees
incurred by them or either of them in any such case, and the same
shall be secured hereby as a further charge and lien upon the
Mortgaged Property.
4.4 SUCCESSOR TRUSTEE. In the event of the death, refusal, or
of inability for any cause, on the part of the Trustee named
herein, or of any successor trustee, to act at any time when
acting under the foregoing powers and trust may be required, or
for any other reason satisfactory to the Grantee, the Grantee is
authorized, either in its own name or through an attorney or
attorneys in fact appointed for that purpose, by written
instrument duly registered, to name and appoint a successor or
successors to execute this trust, such appointment to be
evidenced by a writing, duly acknowledged; and when such writing
17
shall have been registered, the substituted trustee named therein
shall thereupon be vested with all the right and title, and
clothed with all the power of the Trustee named herein and such
like power of substitution shall continue so long as any part of
the debt secured hereby remains unpaid.
ARTICLE V
MISCELLANEOUS
5.1 WAIVER OF MARSHALING AND CERTAIN RIGHTS. To the extent
that Grantor may lawfully do so, Grantor hereby expressly waives
any right pertaining to the marshaling of assets or marshaling of
liens, the equity of redemption, any statutory or common law
right of redemption, homestead, dower, marital share, and all
other exemptions, or other matter which might defeat, reduce or
affect the right of Grantee to sell the Mortgaged Property for
the collection of the Indebtedness, or the right of Grantee to
the payment of the Indebtedness out of the proceeds of sale of
the Mortgaged Property in preference to every other person and
claimant.
5.2 WAIVER OF IMPAIRMENT OF RECOURSE DEFENSES. Without
affecting the liability of Grantor or any other person (except
any person expressly released in writing) for the payment or
performance of any of the Indebtedness, and without affecting the
rights of Grantee with respect to any security not expressly
released in writing, Grantee may, at any time, and from time-to-
time, either before or after the maturity of the Indebtedness,
and without notice or consent:
(a) release any person liable for payment or
performance of all or any part of the Indebtedness;
(b) make any agreement extending the time or otherwise
altering the terms of payment or of all or any part of the
Indebtedness (without limit as to the number of such extensions
or the period or periods thereof), or modifying or waiving any
obligation, or subordinating, modifying or otherwise dealing with
the lien or charge hereof;
(c) exercise or refrain from exercising any right
Grantee may have;
(d) accept additional security of any kind; or
(e) release or otherwise deal with any property, real
or personal, securing the Indebtedness, including all or any part
of the Mortgaged Property herein described.
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Furthermore, the failure of the Grantee to perfect any lien
granted herein or elsewhere, to take any action to obtain payment
or performance of the Indebtedness or to exercise any rights or
remedies available hereunder shall not relieve Grantor or any
other person from liability for the payment or performance of the
Indebtedness nor effect a discharge of the lien, security
interest or assignment herein granted; it being intended that all
"IMPAIRMENT OF RECOURSE" and "IMPAIRMENT OF COLLATERAL" defenses
are hereby waived.
5.3 NO WAIVER. No waiver by the Trustee or the Grantee shall
be construed as a waiver of a subsequent similar default or any
other default by the Grantor. No delay by Grantee or by the
Trustee in exercising any right or remedy hereunder or otherwise
afforded by law, shall operate as a waiver thereof or preclude
the exercise thereof during the continuance of any default
hereunder. No failure of Grantee to exercise any option herein
given to declare the maturity of the debt hereby secured, no
forbearance by Grantee after the exercise of such option, and no
Withdrawal or abandonment of foreclosure proceedings by the
Grantee after the exercise of such option, shall be taken or
construed as a waiver of its right to exercise such option or to
declare such maturity by reason of any past, present, or future
default on the part of the Grantor. Acceptance by Grantee of
partial payments shall not constitute a waiver of the default by
failure to make full payments.
5.4 GRANTEE'S CONSENT. Except as otherwise expressly provided
herein, in any instance hereunder where Grantee's approval or
consent is required or the exercise of Grantee's judgment is
required, the granting or denial of such approval or consent and
the exercise of such judgment shall be within the sole discretion
of Grantee, and Grantee shall not, for any reason or to any
extent, be required to grant such approval or consent or exercise
such judgment. Grantee may consult with counsel, and the written
advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
5.5 ESTOPPEL CERTIFICATE. At the request of the Grantee, the
Grantor shall furnish promptly a written statement or affidavit,
in such form as may be required by Grantee, confirming the unpaid
balance of the Indebtedness, the date to which interest has been
paid and that there are no offsets to or defenses against any
payment or performance of the Indebtedness or, if there are any
such offsets or defenses, specifying them.
5.6 EXPENSES OF GRANTEE. The Grantor will upon demand pay to
the Grantee the amount of any and all costs and expenses,
19
including without limitation all fees and disbursements of the
Grantee's counsel and of any experts and agents, which Grantee
may incur in connection with (a) the preparation of this Deed of
Trust (only to the extent Grantee is entitled to reimbursement of
such expenses under the Credit Agreement), (b) the recording of
this Deed of Trust, (c) the administration of this Deed of Trust,
(d) the sale of, collection from or other realization upon the
Mortgaged Property, (e) the exercise or enforcement of any of the
rights of Grantee hereunder, or (f) the failure of Grantor to
perform or observe any of the provisions hereof.
5.7 INDEMNIFICATION. The Grantor agrees to indemnify and hold
the Grantee harmless from and against any and all claims, losses,
and liabilities arising out of or resulting from this Deed of
Trust (including, without limitation, enforcement of this Deed of
Trust), and or arising out of or in connection with the
Indebtedness, except claims, losses or liabilities resulting
solely and directly from the Grantee's gross negligence or
willful misconduct. In the event that Grantee shall assign or
transfer its rights hereunder or under the Credit Agreement, the
rights of the Grantee under this section and under the
immediately preceding section, which require the Grantor to
indemnify or pay expenses of the Grantee shall continue in favor
of the Grantee originally named herein as well as any successor
or assignee of the Grantee, and any such provision may be
enforced severally by the original Grantee named herein or any
such successor or assignee, at their option, by all of such
parties acting jointly.
5.8 DEFAULT RATE. If Grantee shall expend any money chargeable
to Grantor or subject to reimbursement by Grantor under the terms
of this Deed of Trust, the Credit Agreement or the Indebtedness,
Grantor shall repay the same to Grantee immediately at the place
where payments under the Credit Agreement are payable, together
with interest thereon from the date due (or, if there is no
specified due date, from the date of demand therefor by Grantee)
until paid at a rate (herein the "DEFAULT RATE") equal to the
lesser of (a) ten percent (10%) per annum, or (b) the maximum
effective contract rate of interest allowed by applicable law.
5.9 PAYMENT IN FULL. If the Grantor shall pay and perform all
the Indebtedness promptly when due, and shall pay such sums as
shall be necessary to discharge taxes and maintain insurance and
perform repairs and the costs, fees and expenses of making,
enforcing and executing this trust, when they shall severally be
due and payable, and shall comply with all of the covenants,
terms and conditions of the Credit Agreement, this Deed of Trust,
and any other instrument which also now or hereafter secures the
Indebtedness secured hereby, then this conveyance shall become
void, the Trustee shall reconvey by quitclaim the Mortgaged
20
Property herein described at the expense of the Grantor, and the
Grantee shall execute and deliver to Grantor, at Grantor's
request, such documents as may be necessary to evidence the
termination of the security interests and assignments herein
granted.
5.10 NO PARTNERSHIP. Nothing contained in this Deed of Trust is
intended to create any partnership, joint venture or association
between Grantor and Grantee, or in any way make Grantee a co-
principal with Grantor with reference to the Mortgaged Property,
and any inferences to the contrary are hereby expressly negated.
5.11 HEADINGS, USE OF TERMS. The article, paragraph and
subparagraph headings hereof are inserted for convenience of
reference only and shall not alter, define, or be used in
construing the extent of such articles, paragraphs or
subparagraphs. Whenever used, the singular number shall include
the plural and the plural the singular, and the use of any gender
shall be applicable to all genders. The term "GRANTOR" shall
include in their individual capacities and jointly all parties
hereinabove named a Grantor. The term "GRANTEE" shall include any
lawful owner, holder, pledgee, or assignee of any of the
Indebtedness. The duties, covenants, conditions, obligations, and
warranties of Grantor in this Deed of Trust shall be joint and
several obligations of Grantor and each Grantor, if more than
one, and each Grantor's heirs, personal representatives,
successors and assigns.
5.12 SEVERABILITY. If any provision of this Deed of Trust is
held to be illegal, invalid, or unenforceable under present or
future laws effective while this Deed of Trust is in effect, the
legality, validity and enforceability of the remaining provisions
of this Deed of Trust shall not be affected thereby, and in lieu
of each such illegal, invalid or unenforceable provision, there
shall be added automatically as a part of this Deed of Trust a
provision that is legal, valid and enforceable and as similar in
terms to such illegal, invalid or unenforceable provision as may
be possible. If any of the Indebtedness shall be unsecured, the
unsecured portion of the Indebtedness shall be completely paid
prior to the payment of the secured portion of such Indebtedness,
and all payments made on account of the Indebtedness shall be
considered to have been paid on and applied first to the complete
payment of the unsecured portion of the Indebtedness.
5.13 BURDEN AND BENEFIT. This instrument shall be binding on
Grantor and Grantor's successors and assigns, and shall inure to
be the benefit of the Grantee and Trustee and their respective
successors and assigns.
21
5.14 APPLICABLE LAW. This Deed of Trust shall be governed and
construed in accordance with the internal laws of the State of
Tennessee without regard to principles of conflicts of laws.
5.15 LIMITATION ON SECURITY FOR INDEBTEDNESS. Notwithstanding
ally provision to the contrary contained herein, it is expressly
understood and agreed that the maximum amount which the Grantee
shall be entitled to realize pursuant to the provisions hereof
from the Mortgaged Property, pledged, mortgaged, and hypothecated
by this instrument, is and shall be limited to the aggregate of:
(a) the sum of all amounts due under the Credit
Agreement;
(b) any advances made by the Grantee hereunder,
including, without limitation, to preserve and protect the
Mortgaged Property, payments for taxes, insurance, and repairs,
and payments made with respect to any Prior Liens; plus
(c) any and all reasonable costs, fees and expenses
incurred by the Grantee in enforcing the provisions of this Deed
of Trust, including its reasonable attorney's fees, and any fees
paid or payable to the Trustee;
(all of which are herein sometimes collectively called the
"MAXIMUM SECURED INDEBTEDNESS"). Upon payment in full of the
Maximum Secured Indebtedness, the Grantor shall be entitled to
have this instrument released of record, at the Grantor's sole
cost and expense. Further, in the event that a foreclosure sale
held pursuant to the provisions of Section 3.2 hereof should
result in proceeds from such foreclosure sale in excess of the
Maximum Secured Indebtedness, such excess shall be paid to the
Grantor, or to such other person as may be legally entitled
thereto, free and clear of any claim of the Grantee. In
no event and under no circumstances, however, shall the
provisions of this Section 5. 15 serve to limit the unconditional
and unlimited liability of the Grantor under and pursuant to the
Credit Agreement, the limitation in this Section 5.15 being
solely a limitation on the amount which the Grantee may recover
out of the Mortgaged Property by exercise of its rights and
remedies set forth in this instrument.
5.16 VENUE OF ACTIONS. It is expressly understood and agreed
that no suit or action shall be commenced by the Grantor, or by
any successor, personal representative or assignee of Grantor,
with respect to the indebtedness secured hereby with respect to
this Deed of Trust, the Indebtedness, other than in a state court
of competent jurisdiction in and for Hamilton County, Tennessee,
or in the United States District Court for the Eastern District
of Tennessee, Southern Division, and not elsewhere.
22
Nothing in this paragraph contained shall prohibit Grantee from
instituting suit in any court of competent jurisdiction for the
enforcement of its rights hereunder, in the Credit Agreement, or
in the Indebtedness.
5.17 WAIVER OF RIGHT TO TRIAL BY JURY. GRANTOR HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (a) ARISING UNDER THIS INSTRUMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR (b) IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO THIS INSTRUMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH
CASE WITH THEIR NOW EXISTING OR HEREAFTER ARISING; AND FURTHER
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY
OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
TO THE WAIVER OF THE TRIAL BY JURY.
IN WITNESS WHEREOF, the Grantor has executed this Deed of
Trust on this the day and year first above written.
SIGNAL APPAREL COMPANY, INC.
BY: /s/ William H. Watts
Title: Executive VP and CFO
STATE OF TENNESSEE]
COUNTY OF HAMILTON]
Personally appeared before me, a Notary Public in and for
the County aforesaid, William Watts, with whom I am
personally acquainted (or proved to me on the basis of
satisfactory evidence), and who upon oath acknowledged such
person to be the Exec. Vice President of Signal Apparel Company,
Inc., the within named Grantee, a corporation, and that such
William Watts executed the within instrument for the purposes
therein contained by personally signing on behalf of such
corporation as such officer.
Witness my hand, at office, this the 31st day of March, 1995.
/s/ Geoffrey G. Young
Notary Public
My Commission Expires:
23
LIST OF OMITTED EXHIBITS AND SCHEDULES
Exhibit A Deed of Trust by and Among Signal Apparel Company,
Inc. and Walsh Greenwood & Co.
The Registrant hereby agrees to furnish a copy of any such omitted Schedules
or Exhibits supplementally upon the request of the Commission's staff.