General DOT NC
PREPARED BY AND WHEN
RECORDED MAIL TO:
Charles N. Anderson, Jr.
Smith, Helms, Mulliss & Moore, L.L.P.
201 North Tryon Street
Charlotte, North Carolina 28202
- --------------------------------------------------------------------------------
DEED OF TRUST, SECURITY AGREEMENT,
FIXTURE FILING, ASSIGNMENT OF LEASES AND RENTS
AND
FINANCING STATEMENT
Dated and effective as of January , 2000
between
CONE MILLS CORPORATION, a North Carolina corporation
Grantor,
and
TIM, INC. (the "Trustee"),
and
WILMINGTON TRUST COMPANY
not in its individual capacity but solely as
General Collateral Agent and Beneficiary,
and
BANK OF AMERICA, N.A.,
as Designated Collateral Subagent
THIS INSTRUMENT SECURES GENERAL SENIOR OBLIGATIONS WHICH INCLUDES
FUTURE ADVANCES BY CERTAIN GENERAL SECURED PARTIES TO GRANTOR
INCLUDING, AMONG OTHER THINGS, TERM LOANS, SWING LINE LOANS,
A REVOLVING LINE OF CREDIT AND REIMBURSEMENT OF
ADVANCES MADE UNDER LETTERS OF CREDIT.
THIS INSTRUMENT COVERS GOODS WHICH ARE OR ARE TO BECOME
FIXTURES RELATED TO THE REAL ESTATE DESCRIBED HEREIN AND IS TO BE
RECORDED IN THE DEED RECORDS AND IS ALSO TO BE
INDEXED IN THE INDEX OF FINANCING STATEMENTS OR OF
FIXTURE FILINGS.
REFER TO PAGE ONE OF THIS INSTRUMENT FOR ADDITIONAL
INFORMATION CONCERNING THE DEBTOR AND SECURED PARTY.
Table of Contents
ARTICLE I
DEFINITIONS
1.1 Definitions..........................................................2
1.2 Defined Terms........................................................9
ARTICLE II
GRANT
2.1 Grant................................................................9
2.2 Defeasance and Reconveyance.........................................10
2.3 Provisions Concerning North Carolina; Future Advances...............10
2.4 Credit Agreement....................................................10
ARTICLE III
WARRANTIES AND REPRESENTATIONS
3.1 Title to Mortgaged Property and Lien of this Instrument.............11
3.2 [Intentionally Omitted].............................................11
3.3 [Intentionally Omitted].............................................11
3.4 Powers of Termination and Rights of Reverter........................11
3.5 Wetlands............................................................11
3.6 Environmental Matters...............................................12
ARTICLE IV
AFFIRMATIVE COVENANTS
4.1 Payment and Performance.............................................13
4.2 Compliance with Legal Requirements..................................13
4.3 Lien Status.........................................................13
4.4 Payment of Impositions and Other Amounts............................14
4.5 Repair..............................................................15
4.6 Insurance...........................................................15
4.7 Restoration Following Casualty......................................17
4.8 Application of Proceeds.............................................18
4.9 Inspection..........................................................19
4.10 Leases..............................................................19
4.11 [Intentionally Omitted].............................................20
4.12 Taxes...............................................................20
4.13 Collection Costs....................................................20
4.14 Reserves............................................................21
4.15 Estoppel Certificates...............................................22
4.16 Creation and Recordation of Additions and Betterments...............22
4.17 Consents............................................................22
4.18 [Intentionally Omitted].............................................22
4.19 [Intentionally Omitted].............................................22
4.20 [Intentionally Omitted].............................................22
4.21 Change of Name or Address...........................................22
4.22 [Intentionally Omitted].............................................22
4.23 Notice of and Response to Environmental Complaint...................22
4.24 Indemnification.....................................................23
4.25 Other Agreements....................................................24
4.26 Transfer of License.................................................24
ARTICLE V
NEGATIVE COVENANTS
5.1 Use Violations......................................................24
5.2 Waste...............................................................24
5.3 Transfer of Mortgaged Property; Partial Release.....................25
5.4 Rights of Reverter and Powers of Termination........................25
ARTICLE VI
DEFAULT AND FORECLOSURE
6.1 Remedies............................................................25
6.2 No Conditions Precedent to Exercise of Remedies.....................28
6.3 Release of and Resort to Collateral.................................29
6.4 Waivers.............................................................29
6.5 Discontinuance of Proceedings.......................................29
6.6 Application of Proceeds.............................................30
6.7 Cooperation.........................................................30
ARTICLE VII
CONDEMNATION
7.1 General.............................................................31
7.2 Rebuilding, Restoration and Repair..................................31
ARTICLE VIII
SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
8.1 Assignment..........................................................32
8.2 Collection of Rents.................................................33
8.3 Beneficiary's Powers of Attorney....................................33
8.4 Grantor Remains Liable..............................................35
8.5 Grantor's Representations and Warranties............................35
8.6 Grantor's Covenants.................................................36
8.7 Effect of Release of Mortgaged Property.............................37
8.8 Hold Harmless.......................................................38
ARTICLE IX
CONCERNING THE TRUSTEE
9.1 No Required Action..................................................39
9.2 Certain Rights......................................................39
9.3 Retention of Moneys.................................................40
9.4 Successor Trustees..................................................40
9.5 Perfection of Appointment...........................................40
9.6 Succession Instruments..............................................40
9.7 No Representation by Trustee........................................41
9.8 [Intentionally Omitted].............................................41
ARTICLE X
MISCELLANEOUS
10.1 Performance at Grantor's Expense....................................41
10.2 Survival of Secured Obligations.....................................41
10.3 Further Assurances..................................................41
10.4 Recording and Filing................................................41
10.5 Notices.............................................................41
10.6 No Waiver...........................................................43
10.7 Beneficiary's and Secured Creditors' Right to Perform the
Obligations.......................................................44
10.8 Covenants Running with the Land.....................................45
10.9 Successors and Assigns..............................................45
10.10 Severability........................................................45
10.11 Entire Agreement and Modification...................................45
10.12 APPLICABLE LAW......................................................45
10.13 No Partnership; Control in Grantor..................................47
10.14 Headings............................................................47
10.15 Hold Harmless.......................................................48
10.16 Pronouns and Plurals................................................48
10.17 WAIVER OF TRIAL BY JURY.............................................49
10.18 Assignment..........................................................49
10.19 No Merger...........................................................49
10.20 Enforceability of Lien..............................................49
10.21 Knowledge...........................................................49
10.22 Best Efforts........................................................49
10.23 Usury Savings Clause................................................49
10.24 Payment of Prior Encumbrances.......................................49
EXHIBIT A Land................................................................53
THIS INSTRUMENT IS A DEED OF TRUST, SECURITY AGREEMENT, FIXTURE FILING,
ASSIGNMENT OF LEASES AND RENTS AND FINANCING STATEMENT OF BOTH REAL AND PERSONAL
PROPERTY, INCLUDING GOODS THAT ARE OR ARE TO BECOME FIXTURES ON THE REAL
PROPERTY DESCRIBED HEREIN, AND IS TO BE FILED FOR RECORD IN THE RECORDS WHERE
DEEDS OF TRUST OF REAL ESTATE ARE RECORDED. ADDITIONALLY, THIS INSTRUMENT SHOULD
BE APPROPRIATELY INDEXED, NOT ONLY AS A DEED OF TRUST, BUT ALSO AS A FINANCING
STATEMENT OR FIXTURE FILING COVERING GOODS THAT ARE OR ARE TO BECOME FIXTURES ON
THE REAL PROPERTY DESCRIBED HEREIN. THE NAMES OF THE GRANTOR (DEBTOR/MORTGAGOR)
AND THE TRUSTEE AND BENEFICIARY (SECURED PARTY/MORTGAGEE), THE MAILING ADDRESSES
OF THE GRANTOR (DEBTOR/MORTGAGOR), THE ADDRESS OF THE TRUSTEE AND BENEFICIARY
(SECURED PARTY/MORTGAGEE) FROM WHICH INFORMATION CONCERNING THE SECURITY
INTEREST MAY BE OBTAINED, AND A STATEMENT INDICATING THE TYPES, OR DESCRIBING
THE ITEMS OF COLLATERAL, ARE SET FORTH BELOW IN SECTIONS 1.1 AND 10.5 OF THIS
INSTRUMENT, RESPECTIVELY. THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY
PROVISIONS AND SECURES OBLIGATIONS CONTAINING PROVISIONS FOR CHANGES IN INTEREST
RATES, EXTENSIONS OF TIME FOR PAYMENT AND OTHER MODIFICATIONS IN THE TERMS OF
THE OBLIGATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN CONTAINED, THIS
INSTRUMENT SHALL BE DEEMED TO BE AND SHALL BE ENFORCEABLE AS A DEED OF TRUST AND
AS A SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FINANCING STATEMENT.
THIS INSTRUMENT SECURES FUTURE ADVANCES MADE PURSUANT TO THE PROVISIONS HEREOF
AND THE SENIOR CREDIT DOCUMENTS REFERRED TO BELOW.
(REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
DEED OF TRUST, SECURITY AGREEMENT,
FIXTURE FILING, ASSIGNMENT OF LEASES AND RENTS AND
FINANCING STATEMENT
THIS DEED OF TRUST, SECURITY AGREEMENT, FIXTURE FILING, ASSIGNMENT OF
LEASES AND RENTS, AND FINANCING STATEMENT (hereinafter referred to as this "Deed
of Trust" or this "Mortgage"), is entered into as of the _____ day of January,
2000, by and among CONE MILLS CORPORATION, a North Carolina corporation, the
mortgagor, grantor and trustor hereunder (herein called "Grantor"), whose
address for all purposes hereunder is 3101 North Elm Street, Greensboro, North
Carolina 27415; TIM, INC., a North Carolina corporation, the trustee hereunder
(herein called "Trustee"), whose address for all purposes hereunder is 100 North
Tryon Stret, 17th Floor, Charlotte, North Carolina 28255; WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as General Collateral Agent
(the "General Collateral Agent") under that certain General Collateral Agency
Agreement of even date herewith among the General Collateral Agent, The
Prudential Insurance Company of America, as holder of the Senior Notes (the
"Senior Notes Holder", which term shall include each of its successors and
assigns in such capacity), SunTrust Bank ("SunTrust") and Atlantic Financial
Group, Ltd. ("Atlantic Financial"), as creditor of the Senior Lease Obligations
(together, the "Senior Lease Creditor", which term shall include each of their
successors and assigns in such capacity), Bank of America, N.A., a national
banking association, acting in its capacity as Agent (in such capacity the
"Revolving Credit Agent", which term shall include each of its successors and
assigns in such capacity) for each of the Lenders now or hereafter party to the
Credit Agreement executed by the Grantor, the Revolving Credit Agent and the
Lenders (as amended from time to time, the "Credit Agreement"), and Morgan
Guaranty Trust Company of New York as holder of the Morgan Swap Obligations
("Morgan", which term shall include each of its successors and assigns in such
capacity) pursuant to which the General Collateral Agent serves as such on
behalf of and for the benefit of the Senior Notes Holder, the Senior Lease
Creditor, the Revolving Credit Agent, the Lenders, the holders of the Senior
Debentures, Morgan and all other General Secured Parties at any time existing.
The General Collateral Agent is the beneficiary hereunder (herein called
"Beneficiary", which term shall include each of its successors and assigns in
such capacity), whose address for all purposes hereunder is 1100 North Market
Street, Wilmington, Delaware 19890 Attention: Corporate Trust Administration.
Pursuant to the General Collateral Agency Agreement, the General Collateral
Agent is authorized to delegate certain actions it would otherwise undertake and
certain responsibilities and obligations thereof pursuant to the terms of this
Deed of Trust to any General Secured Party party to the General Collateral
Agency Agreement, and the General Collateral Agent has so authorized and
appointed the Revolving Credit Agent (in such capacity, the "Designated
Collateral Subagent", which term shall include each of its successors and
assigns in such capacity) and the Revolving Credit Agent has accepted such
authorization and appointment. Beneficiary, and to the extent provided for
herein the Designated Collateral Subagent, shall hold the interests and exercise
the rights granted hereunder in trust as General Collateral Agent for the
benefit of and as security for all General Secured Parties. This Deed of Trust
secures the General Senior Obligations and any modifications, extensions and
renewals of the General Senior Obligations, it being the intention of the
parties
1
hereto that this Deed of Trust shall be deemed an open and continuing lien
instrument to secure all such General Senior Obligations now existing or
hereafter arising regardless of the extinguishment and payment of any one or
more obligations owed to the General Secured Parties. This Deed of Trust secures
future advances constituting General Senior Obligations made by the General
Secured Parties to the Grantor under the Senior Credit Documents and hereunder,
and each such future advance, whether or not evidenced by a note, and each note
or other instrument evidencing the same, shall be secured hereby. All provisions
of this Deed of Trust shall apply to each future advance as well as to all other
General Senior Obligations secured hereby, whether or not evidenced by a note,
and all such advances and other General Senior Obligations, and any
modifications, extensions and renewals of the same shall have the same lien
priority as if made on the date this Deed of Trust is recorded.
This Deed of Trust secures the General Senior Obligations (as defined
below in Section 1.1), and any modifications, extensions and renewals of the
same, which shall be construed in all cases to consist of, among other
obligations, the covenants of Grantor set forth in, and the amounts advanced to
or for the account, use or benefit of Grantor from time to time pursuant to the
Loan Documents (as defined below) and the Senior Credit Documents (as defined
below), the aggregate amount of the General Senior Obligations (as defined
below) actually outstanding at any particular time being subject to fluctuations
up or down due to further advances of loan proceeds, future repayments of such
loan proceeds from time to time over the term of such General Senior
Obligations, changes in the rate of interest charged in respect of General
Senior Obligations bearing interest at a floating rate, and/or changes in the
amount of the Morgan Swap Obligations due to fluctuations in interest rates (all
of which advances and repayments are hereby declared to be contemplated by the
Grantor and the Beneficiary at the time this Deed of Trust is executed).
At the request and direction of the General Secured Parties, the
General Collateral Agent has entered into an Intercreditor Agreement of even
date herewith by and among the General Collateral Agent, the Revolving Credit
Agent, the Senior Notes Holder, the Senior Lease Creditor, Morgan, and Bank of
America, N.A. in its capacity as Priority General Collateral Agent as therein
defined (the "Senior Debt Intercreditor Agreement") for their mutual benefit,
the benefit of the Persons for whom any of them serve as agent, as applicable,
and the benefit of the Debenture Holders and the Bond Trustee, in which the
parties thereto acknowledged and agreed to certain rights and undertakings with
respect to Liens and security interests on collateral securing, inter alia, the
General Senior Obligations (including the lien conferred under this Deed of
Trust) and for the allocation of proceeds derived from any remedial actions
undertaken pursuant to the General Security Instruments, including this Deed of
Trust.
WITNESSETH:
ARTICLE I
DEFINITIONS
2
1.1 DEFINITIONS: In addition to terms defined in the foregoing
recitals, as used herein, the following terms shall have the following meanings:
ASSIGNMENT: The assignment and delivery to Beneficiary as security for
the payment and performance of the General Senior Obligations of all of the
rights, titles, interests and estates of Grantor in and to all of the following:
(a) the Leases, (b) the Rents, (c) the Fixtures and (d) the Personalty.
BANKRUPTCY ACT: The Bankruptcy Reform Act of 1978, 11 U.S.C.ss.101, et
seq., as the same may be amended from time to time.
BUILDINGS: Any and all buildings, parking structures, utility sheds,
workrooms, air conditioning towers, open parking areas, and other structures or
improvements, and any and all additions, alterations, betterments or
appurtenances thereto, now or at any time hereafter situated, placed or
constructed upon the Land or any part thereof.
BUSINESS DAY: As defined in the Senior Debt Intercreditor Agreement.
DEBENTURE HOLDERS: As defined in the Senior Debt Intercreditor
Agreement.
DEFAULT: Any event, occurrence or condition which with the giving of
notice or lapse of time or both may become an Event of Default.
DEFAULT RATE: As defined in the Senior Debt Intercreditor Agreement.
ENVIRONMENTAL LAWS: Any federal, state or local statute, law,
ordinance, code, rule, regulation, order, decree, permit or license regulating,
relating to, or imposing liability or standards of conduct concerning,
environmental matters or conditions, environmental protection or conservation,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended; the Superfund Amendments and
Reauthorization Act of 1986, as amended; the Resource Conservation and Recovery
Act, as amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all regulations
promulgated thereunder, and any other "Superfund" or "Superlien" law.
EQUIPMENT: All of the Grantor's right, title and interest in and to all
"equipment", as such term is defined in Section 9-109(2) of the UCC (as defined
below), now or hereafter existing, now owned or hereafter acquired by the
Grantor, which are now or hereafter located or to be located upon, within or
about the Land and the Buildings, or which are used in or related to the
operation of the Mortgaged Property, including, but not limited to, all
machinery, equipment, furnishings, fixtures, electrical equipment, vehicles and
computer and other electronic data-processing and other office equipment, any
movable walls and partitions and any and all additions, substitutions
3
and replacements of any of the foregoing, wherever located, together with all
attachments, components, parts, equipment and accessories installed thereon or
affixed thereto.
EVENT OF DEFAULT: As defined in the Senior Debt Intercreditor
Agreement.
EXHIBITS: The exhibits attached hereto and incorporated herein by this
reference.
EXPENSES: All out-of-pocket costs and expenses (including reasonable
fees and expenses of counsel and court costs) incurred and all advances made, by
the Beneficiary, the Designated Collateral Subagent and/or Trustee, as
applicable, or any trustee, co-trustee or agent of the Beneficiary, the
Designated Collateral Subagent and/or Trustee pursuant to the provisions of, or
in furtherance of the Beneficiary's and/or Trustee's and/or any of the General
Secured Parties' ( or any agent on any of their behalf) duties or rights under,
the Senior Credit Documents, including, without limitation, expenses of
retaking, holding, preparing for sale or lease, selling and/or leasing the
Mortgaged Property, but excluding any of the same specifically described in the
Senior Credit Documents as being the responsibility of the Beneficiary or the
Designated Collateral Subagent.
FINANCING STATEMENT: As defined in Section 8.5 below.
FIXTURES: Equipment now owned or the ownership of which is hereafter
acquired by Grantor which is so related to the Land and Buildings forming part
of the Mortgaged Property that it is deemed a fixture or real property under the
laws of the State, including, without limitation, all building or construction
materials intended for construction, reconstruction, alteration or repair of or
installation on the Mortgaged Property, construction equipment, appliances,
machinery, plant equipment, fittings, apparatuses, fixtures and other items now
owned or the ownership of which is hereafter acquired by Grantor and now or
hereafter attached to, installed on or in, or used in connection with
(temporarily or permanently), any of the Buildings or the Land, or which in some
fashion are deemed to be fixtures to the Land or Buildings under the laws of the
State, including, but not limited to, the items described in the definition of
Equipment, furnaces, boilers, heaters, engines, devices for the operation of
pumps, pipes, plumbing, cleaning, call and sprinkler systems, fire and theft
protection apparatus and equipment, water tanks, air and water pollution
control, waste disposal, heating, ventilating, plumbing, lighting,
refrigerating, laundry, incinerating, air conditioning and air cooling equipment
and systems, gas and electric machinery, appurtenances and equipment, pollution
control equipment, disposals, dishwashers, refrigerators and ranges,
recreational equipment and facilities of all kinds, carpet, moveable or
immoveable walls or partitions, built-in oxygen and vacuum systems and water,
gas, electrical, storm and sanitary sewer facilities, utility lines and
equipment (whether owned individually or jointly with others, and, if owned
jointly, to the extent of Grantor's interest therein) and all other utilities
whether or not situated in easements, all water tanks, water supply, water power
sites, fuel stations, fuel tanks, fuel supply, and all other structures,
together with all accessions, appurtenances, additions, replacements,
betterments and substitutions for any of the foregoing and the proceeds thereof.
Notwithstanding the foregoing, "Fixtures" shall not include any property which
tenants are entitled to remove pursuant to their Leases.
4
FULLY SATISFIED: As defined in the Senior Debt Intercreditor Agreement.
GENERAL COLLATERAL AGENCY AGREEMENT: As defined in the Senior Debt
Intercreditor Agreement.
GENERAL SECURED PARTIES: As defined in the Senior Debt Intercreditor
Agreement.
GENERAL SENIOR OBLIGATIONS: As defined in the Senior Debt Intercreditor
Agreement.
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES: As defined in the Credit
Agreement.
GRANTOR: The above-defined Grantor and any and all subsequent owners of
the Mortgaged Property.
HAZARDOUS MATERIAL: Any pollutant, contaminant, or hazardous, toxic or
dangerous waste, substance or material (including, without limitation, petroleum
products, asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or emission of
which is subject to any Environmental Law.
HIGHEST LAWFUL RATE: As defined in Section 10.23 hereof.
IMPOSITIONS: All real estate and personal property taxes; water, gas,
sewer, electricity and other utility rates and charges; charges for any
easement, license or agreement maintained for the benefit of the Mortgaged
Property; and all other taxes, standby fees, levies, claims, charges and
assessments, general and special, ordinary and extraordinary, foreseen and
unforeseen of any kind and nature whatsoever which at any time prior to or after
the execution hereof may be assessed, levied or imposed upon the Mortgaged
Property or the Rents or the ownership, use, occupancy or enjoyment thereof, and
any interest, costs or penalties with respect to any of the foregoing.
INVENTORY: All of the Grantor's right, title and interest, whether now
owned or hereafter acquired, in and to all inventory in all of its forms,
wherever located, now or hereafter existing, including, but not limited to, (i)
goods in which the Grantor has an interest in mass or a joint or other interest
or right of any kind (including, without limitation, goods in which the Grantor
has an interest or right as consignee or consignor) and (ii) goods that are
returned to or repossessed by the Grantor, and all accessions thereto and
products thereof and documents therefor.
ISSUING BANK: Bank of America, N.A., or any successor or replacement
bank, as issuer of Letters of Credit in accordance with the Credit Agreement.
LAND: The real estate owned in fee or leased by the Grantor and
described in Exhibit "A" attached hereto, and all rights, titles and interests
appurtenant thereto.
5
LEASES: Any and all leases, subleases, licenses, concessions or other
agreements (written or verbal, now or hereafter in effect) through which Grantor
directly or indirectly grants a possessory interest in and to, or the right to
occupy and use, all or any portion of the Mortgaged Property that constitutes
real property together with any renewals or extensions thereof and all leases,
subleases, licenses, concessions or other agreements in substitution therefor.
LEGAL REQUIREMENTS: (i) Any and all present and future decisions,
statutes, rulings, rules, regulations, permits, certificates or ordinances of
any governmental authority in any way applicable to Grantor or the Mortgaged
Property, including, without limitation, the ownership, use, occupancy,
possession, operation, maintenance, alteration, repair or reconstruction
thereof, (ii) Grantor's presently or subsequently effective Certificate of
Incorporation and Bylaws, (iii) any and all Leases and other contracts (written
or oral) of any nature by which the Grantor or the Mortgaged Property may be
bound, and (iv) any and all restrictions, reservations, conditions, easements or
other covenants or agreements of record affecting the Mortgaged Property.
LENDERS: As defined in the Credit Agreement, and specifically including
Bank of America, N.A. as the Issuing Bank, or any successor Issuing Bank and
each other Lender which may hereafter become a party to the Credit Agreement
pursuant to the terms thereof.
LIEN: As defined in the Senior Debt Intercreditor Agreement.
LOAN DOCUMENTS: As defined in the Credit Agreement.
MATERIAL REAL PROPERTY: As defined in the Credit Agreement.
MECHANIC'S LIENS: As defined in Section 4.4 hereof.
MORGAN SWAP OBLIGATIONS: As defined in the Senior Debt Intercreditor
Agreement.
MORTGAGED PROPERTY OR MORTGAGED PROPERTIES: The Land, Buildings,
Fixtures, Personalty, Leases and Rents together with:
(i) all rights, privileges, tenements, licenses,
hereditaments, rights-of-way, easements, utility use, air rights,
appendages, division rights, and appurtenances in any way appertaining
thereto, and all right, title, interest or estate of Grantor in and to
any streets, ways, alleys, roadbeds, inclines, tunnels, culverts,
strips or gores of land adjoining or serving the Land or any part
thereof subject to the rights of others, if any;
(ii) all betterments, additions, alterations, appurtenances,
substitutions, replacements and revisions thereof and thereto and all
reversions and remainders therein;
(iii) all of Grantor's right, title and interest in and to any
awards, remuneration, settlements or compensation hereafter to be made
by any insurer, governmental authority or
6
other person or entity as a result of the destruction, loss, theft,
taking by eminent domain or other involuntary conversion of whatever
nature (whether occurring prior to or after the date of this Deed of
Trust) of any of the Land, Buildings, Fixtures, Leases, Rents or
Personalty, including those for any condemnation and vacation of, or
change of grade in, any streets affecting the Land or the Buildings;
(iv) any and all other security and collateral of any nature
whatsoever, now or hereafter given by Grantor to secure the payment and
performance of the General Senior Obligations;
(v) all water and water rights (whether riparian,
appropriative, or otherwise and whether or not appurtenant) in or
hereafter relating to or used in connection with the Land, including,
without limitation, any surface water management permits, any
consumption use permits or general permits subject to the rights of
others, if any;
(vi) any right, title, interest or estate hereafter acquired
by Grantor in any of the foregoing and in and to the Land, Buildings,
Fixtures, Personalty (except as otherwise provided herein), Leases and
Rents. To the extent permitted by law, all of the Fixtures are to be
deemed and held to be a part of and affixed to the Land. In the event
the estate of the Grantor in and to any of the Land and Buildings is a
leasehold estate, this conveyance shall include and the lien, security
interest and assignment created hereby shall encumber and extend to all
other, further or additional title, estates, interest or rights which
may exist now or at any time be acquired by Grantor in or to the
property demised under the lease creating such leasehold estate and
including Grantor's rights, if any, to purchase the property demised
under such lease and, if fee simple title to any of such property shall
ever become vested in Grantor, such fee simple interest shall be
encumbered by this Deed of Trust in the same manner as if Grantor had
fee simple title to such property as of the date of execution hereof;
(vii) all of Grantor's right, title and interest in and to any
and all funds deposited by or on behalf of Grantor with any city,
county, public body or agency, irrigation, sewer or water district or
company, gas or electric company, telephone company, and any other body
or agency for the installation, or to secure the installation, of any
utility pertaining to the Land, Buildings, Fixtures and all
betterments, additions, alterations, appurtenances, substitutions,
replacements and revisions thereof and thereto;
(viii) all of Grantor's right, title and interest in and to
(i) all oil, gas and other minerals located in, on or under the Land,
(ii) all oil, gas or mineral leases, royalty agreements and other
contracts that have been or in the future are entered into with respect
to the Land or with respect to any oil, gas or other minerals located
in, on or under the Land ("Mineral Leases"), and (iii) all rents,
profits, royalties and income at any time arising from the Mineral
Leases or from the sale of oil, gas or other minerals located in, on or
under the Land; and
7
(ix) all proceeds and products of the foregoing. As used in
this Deed of Trust, the term "Mortgaged Property", including each
component thereof, shall be expressly interpreted as meaning all or,
where the context permits or requires, any portion of the above, and
all or, where the context permits or requires, any interest of Grantor
therein.
PARCEL: A single parcel of real property identified as a unit in
Exhibit "A" hereto. For purposes of legal description and real property title
records, a Parcel may be comprised of more than one lot.
PERMITTED ENCUMBRANCES: Those title exceptions (i) with respect to the
Material Real Property only, shown in Schedule B, Part II on Investors Title
Insurance Company Commitment Numbers 9901333CA, 9901334CA, 9901335CA and
9901336CA, submitted to and approved by the General Collateral Agent and the
Designated Collateral Subagent, (ii) with respect to any Mortgaged Property that
is not Material Real Property, appearing in the public records and (iii) such
other title exceptions submitted in writing to, and approved by the Designated
Collateral Subagent.
PERSON: As defined in the Senior Debt Intercreditor Agreement.
PERSONALTY: All of the right, title and interest of Grantor in and to
all tangible and intangible personal property including all furniture,
furnishings, Equipment, machinery, goods, tools, supplies, appliances, general
intangibles, construction contracts, architect's contracts, technical services
agreements, contract rights, franchises, licenses, certificates, operating
rights, approvals, consents, authorizations and permits, and all other personal
property (other than Inventory, accounts receivable, and Fixtures) of any kind
or character (as defined in and subject to the provisions of the UCC) which are
now or hereafter located or to be located upon, within or about the Land and the
Buildings, or which are used in or related to the construction of the Buildings
or the use, occupancy or operation of the Mortgaged Property, together with all
accessories, replacements and substitutions thereto or therefor and the proceeds
thereof; and all insurance proceeds and condemnation proceeds received by
Grantor with respect to the Mortgaged Property to the extent provided herein.
Furthermore, with respect to any of the above-described personal property
represented by a contract, agreement or other instrument or consisting of a
permit, certificate or similar item issued by a governmental authority, then, to
the extent that the granting of the lien or security interest or exercise of
Beneficiary's rights under this Deed of Trust would constitute a breach or
violation of the terms of such instrument, or any Legal Requirement applicable
to such permit, certificate or similar item that would impose material liability
on the Grantor or that would result in a revocation or forfeiture of such item
of personal property, such personal property shall not constitute "Personalty"
hereunder.
PRIORITY LIEN: As defined in the Senior Debt Intercreditor Agreement.
8
RENTS: All of the rents, revenues, income, proceeds, profits, security
and other types of deposits, and other benefits paid or payable and to become
due or payable to Grantor by parties to the Leases for using, leasing,
licensing, possessing, operating from, residing in, selling or otherwise
enjoying any portion or portions of the Mortgaged Property.
REQUIRED GENERAL SECURED PARTIES: As defined in the Senior Debt
Intercreditor Agreement.
SECURITY DOCUMENTS: As defined in the Senior Debt Intercreditor
Agreement.
SECURITY TERMINATION DATE: As defined in the Senior Debt Intercreditor
Agreement.
SENIOR CREDIT DOCUMENTS: As defined in the Senior Debt Intercreditor
Agreement.
SENIOR CREDITORS: As defined in the Senior Debt Intercreditor
Agreement.
SENIOR DEBT OBLIGATIONS: As defined in the Senior Debt Intercreditor
Agreement.
STATE: North Carolina.
SUBSIDIARY: As defined in the Senior Debt Intercreditor Agreement.
TRANSFER: As defined in Section 5.3 below.
TRUSTEE: TIM, Inc., a North Carolina corporation, its successors and
assigns, as applicable and any successor Trustee hereunder.
UCC: The Uniform Commercial Code as adopted in the State.
WORK: As defined in Section 4.7 hereof.
1.2 DEFINED TERMS: Any other capitalized term used herein but not
otherwise defined herein, shall have the same respective meanings given to them
in the Senior Debt Intercreditor Agreement as it existed on the date hereof, and
as it may be modified from time to time.
ARTICLE II
GRANT
2.1 GRANT: NOW THEREFORE, for and in consideration of Ten Dollars
($10.00), and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by Grantor, and to secure the Grantor's full
and faithful performance and satisfaction of the General Senior Obligations,
Grantor, intending to be legally bound hereby, has
9
GIVEN, ALIENATED, REMISED, GRANTED, BARGAINED, MORTGAGED, SOLD, RELEASED,
CONVEYED, ASSIGNED, TRANSFERRED, WARRANTED, SET OVER AND CONFIRMED WITH MORTGAGE
COVENANTS and by these presents does GIVE, ALIENATE, REMISE, GRANT, BARGAIN,
MORTGAGE, SELL, RELEASE, CONVEY, ASSIGN, TRANSFER, WARRANT, SET OVER AND CONFIRM
WITH MORTGAGE COVENANTS AND GRANT A SECURITY INTEREST IN unto Trustee, its
successors in trust and its assigns forever, in trust, for the benefit of
Beneficiary, with POWER OF SALE and right to entry for the benefit of
Beneficiary, all of the Mortgaged Property, subject only to the Permitted
Encumbrances and to Priority Liens, TO HAVE AND TO HOLD the Mortgaged Property
and (except as otherwise set forth herein) all parts, rights, members and
appurtenances thereof for the use, benefit and behoof of the Trustee and its
successors and assigns in trust, for the benefit of Beneficiary, in fee simple
forever, hereby releasing and waiving all rights under and by virtue of the
homestead exemption laws of the State, to the extent permitted by the applicable
Legal Requirements of such State; and Grantor hereby absolutely and irrevocably
assigns to Beneficiary the Leases and Rents for the purposes and upon the terms
and conditions herein set forth; and Grantor does hereby bind itself, its
successors and assigns to FOREVER WARRANT AND DEFEND the title to the Mortgaged
Property and every part thereof, subject only to the Permitted Encumbrances and
to Priority Liens, unto Trustee, in trust, for the benefit of Beneficiary,
against every person whomsoever lawfully claiming or to claim the same or any
part thereof.
2.2 DEFEASANCE AND RECONVEYANCE: If the Security Termination Date has
occurred, and provided that there exists no pending or threatened unsatisfied
obligation pursuant to any environmental indemnification contained in any of the
Senior Credit Documents, then, with respect to the Mortgaged Property, the
liens, security interests, estates and rights granted by this Deed of Trust
shall terminate; whereupon upon surrender to Trustee of this Deed of Trust for
cancellation (which shall be made promptly upon request by Grantor), if required
by applicable law, Beneficiary shall execute a request for reconveyance and
thereafter the Trustee shall reconvey, without warranty, the Mortgaged Property,
or that portion thereof then held hereunder. To the extent permitted by law, any
reconveyance delivered hereunder may describe the grantee as "the person or
persons legally entitled thereto." Neither Beneficiary nor the Designated
Collateral Subagent (nor Trustee, if applicable) shall have any duty to
determine the rights of persons claiming to be rightful grantees of any
reconveyance. Each reconveyance of Mortgaged Property or portions thereof shall
also operate as a reassignment of all future rents, issues and profits
appertaining to the Parcel(s) or portions thereof covered by such reconveyance
to the person or persons legally entitled thereto, unless its reconveyance
expressly provides otherwise.
2.3 PROVISIONS CONCERNING NORTH CAROLINA; FUTURE ADVANCES:
Notwithstanding anything to the contrary herein contained, this instrument shall
be deemed to be and shall be enforceable as a deed of trust and as an assignment
of leases and rents, security agreement and financing statement. This Deed of
Trust shall secure present and future obligations which may be incurred
hereunder, including, but not limited to, periodic advances and readvances on a
revolving basis which will be made from time to time, it being understood and
agreed by the parties hereto that all future advances and readvances on a
revolving basis shall be secured to the same extent as
10
the original advances made under any of the Senior Credit Documents. The amount
of present obligations secured hereby is $_____________. The maximum principal
amount, including present and future obligations, which may be secured hereby at
any one time is $200,000,000. The time period within which such future
obligations may be incurred is the period between the date of this Deed of Trust
and the date fifteen (15) years from the date hereof. It shall not be necessary
at the time any future advance is made or obligation incurred for Grantor to
execute any form of written instrument or notation stipulating that such advance
or obligation is secured by this Deed of Trust. Wherever herein contained, the
phrase "Trustee and Beneficiary, as applicable" or any similar phrase, shall be
deemed to refer to (a) Trustee for the benefit of Beneficiary and (b) if the
context so requires or permits, and if Beneficiary so elects, Beneficiary
(including the Designated Collateral Subagent).
2.4 SENIOR CREDIT DOCUMENTS: Various of the Senior Credit Documents
include swing line loans and a revolving credit facility, and in connection
therewith and with other General Senior Obligations there may be repayments and
disbursements and other reductions and increases of principal from time to time.
It is expressly agreed that the outstanding principal balance of the General
Senior Obligations may, from time to time, be reduced to a zero balance without
such repayment or reduction operating to extinguish and release the lien,
security titles and security interests created by this Deed of Trust. This Deed
of Trust shall remain in full force and effect as to any subsequent future
advances made after the zero balance without loss of priority until the Security
Termination Date. Grantor waives the operation of any applicable statute, law or
regulation having a contrary effect.
ARTICLE III
WARRANTIES AND REPRESENTATIONS
For the consideration aforesaid and to protect the security of this
Deed of Trust, Grantor hereby unconditionally warrants and represents to
Beneficiary as follows:
3.1 TITLE TO MORTGAGED PROPERTY AND LIEN OF THIS INSTRUMENT: Grantor
has good and record and marketable title in fee to the Land, Buildings and
Fixtures and good title to the Personalty and Leases, in all cases free and
clear of any Liens and claims of Liens except the Permitted Encumbrances and the
Priority Liens. This Deed of Trust constitutes a valid lien or deed of trust on
the Grantor's fee interests in the Land, the Buildings and the Fixtures, and a
valid security interest in and to, and a valid assignment of, the Fixtures,
Personalty, Leases and Rents, all in accordance with the terms hereof, in each
case subject only to the Permitted Encumbrances.
3.2 [INTENTIONALLY OMITTED]
3.3 [INTENTIONALLY OMITTED]
11
3.4 POWERS OF TERMINATION AND RIGHTS OF REVERTER: With respect to any
fee-owned Parcel of Mortgaged Property subject to a right of reverter or power
of termination, no event has occurred or is threatened, or is likely to occur by
virtue of the performance by Grantor of any of its General Senior Obligations
under any of the Senior Credit Documents, which would enable the beneficiary of
such right or power to cause such reversion or termination.
3.5 WETLANDS: GRANTOR SHALL BE SOLELY RESPONSIBLE FOR AND AGREES TO
INDEMNIFY TRUSTEE, BENEFICIARY, THE DESIGNATED COLLATERAL SUBAGENT AND EACH
GENERAL SECURED PARTY, PROTECT AND DEFEND WITH COUNSEL REASONABLY ACCEPTABLE TO
BENEFICIARY AND THE DESIGNATED COLLATERAL SUBAGENT, AND HOLD TRUSTEE,
BENEFICIARY, THE DESIGNATED COLLATERAL SUBAGENT AND EACH GENERAL SECURED PARTY
HARMLESS FROM AND AGAINST ANY CLAIMS (INCLUDING WITHOUT LIMITATION THIRD PARTY
CLAIMS FOR PERSONAL INJURY OR REAL OR PERSONAL PROPERTY DAMAGE), ACTIONS,
ADMINISTRATIVE PROCEEDINGS (INCLUDING INFORMAL PROCEEDINGS) JUDGMENTS, DAMAGES,
PUNITIVE DAMAGES, PENALTIES, FINES, COSTS, LIABILITIES (INCLUDING SUMS PAID IN
SETTLEMENTS OF CLAIMS), INTEREST OR LOSSES, REASONABLE ATTORNEYS' FEES
(INCLUDING ANY FEES AND EXPENSES INCURRED IN ENFORCING THIS INDEMNITY),
CONSULTANT FEES, AND EXPERT FEES THAT ARISE DIRECTLY OR INDIRECTLY FROM OR IN
CONNECTION WITH THE PRESENCE ON THE MORTGAGED PROPERTY OF WETLANDS, TIDELANDS OR
SWAMP AND OVERFLOW LANDS, OR ANY BREACH OF THE FOREGOING REPRESENTATION AND
WARRANTY EXCEPT TO THE EXTENT SUCH CLAIM, DAMAGE, LOSS, LIABILITY, COST OR
EXPENSE IS FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. THE PROVISIONS OF THIS SECTION 3.5 SHALL SURVIVE THE
TERMINATION AND RECONVEYANCE OF THIS DEED OF TRUST. THE FOREGOING INDEMNITY
SHALL INCLUDE WITHOUT LIMITATION OF THE FOREGOING INDEMNITY, THE INDEMNITY OF
EACH OF THE PARTIES INDEMNIFIED HEREIN WITH RESPECT TO CLAIMS, DEMANDS, LOSSES,
DAMAGES (INCLUDING CONSEQUENTIAL DAMAGES) LIABILITIES, CAUSES OF ACTION,
JUDGMENTS, PENALTIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES
AND COURT COSTS) AND MATTERS WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE
OUT OF THE NEGLIGENCE OTHER THAN GROSS (WHETHER SOLE, CONTRIBUTORY, COMPARATIVE,
OR OTHERWISE) OF SUCH AND/OR ANY OTHER INDEMNIFIED PARTY OR FOR WHICH SUCH
INDEMNIFIED PARTY MAY HAVE STRICT LIABILITY.
3.6 ENVIRONMENTAL MATTERS: Except as listed on Schedule 8.18 of the
Credit Agreement, or as otherwise could not reasonably be expected to have a
Material Adverse Effect (as
12
defined in the Credit Agreement), the Grantor is in compliance with all
applicable Environmental Laws and has been issued and will maintain and keep
current all required federal, state and local permits, licenses, certificates
and approvals. Except as listed on Schedule 8.18 of the Credit Agreement, or as
otherwise could not reasonably be expected to have a Material Adverse Effect (as
defined in the Credit Agreement), neither the Grantor nor, to the best of
Grantor's knowledge, and, with respect to the Material Real Property only, after
reasonable investigation, any previous owner or operator of the Mortgaged
Property or any other Person, (a) has used or is using the Mortgaged Property in
violation of any Environmental Law; (b) has managed, generated, stored,
released, discharged, treated, or disposed of any Hazardous Material on any
portion of the Mortgaged Property; or (c) has transferred or caused to be
transferred any Hazardous Material from the Mortgaged Property to any other
location. Except for Hazardous Materials necessary for the routine maintenance
of the Mortgaged Property and as used in the ordinary course of the Mortgagor's
business, which Hazardous Material shall be used in accordance with all
applicable Environmental Laws, the Grantor covenants that it shall not permit
any Hazardous Materials to be brought on to the Mortgaged Property, or if so
brought or found located thereon, shall be immediately removed, with proper
disposal, and all environmental cleanup requirements shall be diligently
undertaken pursuant to all Environmental Laws. Neither the Grantor nor any
Subsidiary has been notified of any pending or threatened action, suit,
proceeding or investigation, and neither the Grantor nor any Subsidiary is aware
of any facts which (i) calls into question, or could reasonably be expected to
call into question, compliance by the Grantor or any Subsidiary with any
Environmental Laws, (ii) seeks, or could reasonably be expected to form the
basis of a meritorious proceeding to seek, to suspend, revoke or terminate any
license, permit or approval necessary for the operations of the Grantor's or
Subsidiary's business or facilities or for the generation, handling, storage,
treatment or disposal of any Hazardous Materials, or (iii) seeks to cause, or
could reasonably be expected to form the basis of a meritorious proceeding to
cause, any property of the Grantor or any Subsidiary to be subject to any
restrictions on ownership, use, occupancy or transferability under any
Environmental Laws.
Except as listed on Schedule 8.18 of the Credit Agreement, or as
otherwise could not reasonably be expected to have a Material Adverse Effect (as
defined in the Credit Agreement), neither the Grantor nor any Subsidiary, nor,
to the best of Grantor's knowledge, any previous owner or operator of the
Mortgaged Property or any other Person has used or is using the Mortgaged
Property in violation of any Environmental Law, has managed, generated, stored,
released, treated, or disposed of any Hazardous Material on any portion of the
Mortgaged Property, or transferred or caused to be transferred any Hazardous
Material from the Mortgaged Property to any other location. Except for Hazardous
Materials necessary for the routine maintenance of the Mortgaged Property and as
used in the ordinary course of the Grantor's or Subsidiary's business, which
Hazardous Material shall be used in accordance with all applicable Environmental
Laws, the Grantor and any Subsidiary covenant that they shall not permit any
Hazardous Materials to be brought on to the Mortgaged Property, or if so brought
or found located thereon, shall be immediately removed, with proper disposal,
and all environmental cleanup requirements shall be diligently undertaken
pursuant to all Environmental Laws.
13
ARTICLE IV
AFFIRMATIVE COVENANTS
Grantor hereby unconditionally covenants and agrees with Beneficiary as
follows:
4.1 PAYMENT AND PERFORMANCE: Grantor will satisfy and perform the
General Senior Obligations, including the payment of any sums required thereby,
in full and on or before the dates the same are to be satisfied and performed.
4.2 COMPLIANCE WITH LEGAL REQUIREMENTS: Grantor will promptly and
faithfully comply with, conform to and obey in all material respects all Legal
Requirements whether or not the same shall necessitate structural changes in or
improvements to, or interfere with the use or enjoyment of, the Mortgaged
Property, and provided that Grantor shall have the right in good faith to
contest any such Legal Requirement provided that the Mortgaged Property affected
thereby shall be in no danger of being sold, forfeited or lost pursuant to such
contest and provided that adequate reserves have been set aside by Grantor, in
accordance with Generally Accepted Accounting Principles, to pay the cost
necessary to comply with such Legal Requirement in the event Grantor fails to
prevail in such contest. Grantor will procure and continuously maintain in full
force and effect all permits, licenses and other authorizations required for
construction of improvements, for any permitted use of the Mortgaged Property or
any part thereof then being made and for the lawful and proper installation,
operation and maintenance of the Mortgaged Property. Grantor will not maintain
any nuisance on the Mortgaged Property.
4.3 LIEN STATUS: Grantor will defend and protect the lien, security
title and security interest status of this Deed of Trust subject only to the
Permitted Encumbrances and to Priority Liens and the Liens granted under the
other Security Documents. If Grantor shall fail to satisfy its obligations under
this Section 4.3, Beneficiary and the Designated Collateral Subagent shall have
the rights granted by Section 10.7 hereof to take such actions as Beneficiary or
the Designated Collateral Subagent deems necessary to defend and protect the
lien, security title and security interest status of this Deed of Trust, subject
as aforesaid. Grantor shall reimburse Beneficiary and the Designated Collateral
Subagent for any losses or Expenses incurred by Beneficiary or the Designated
Collateral Subagent if an interest in the Mortgaged Property, other than as
permitted hereunder, is claimed by others.
4.4 PAYMENT OF IMPOSITIONS AND OTHER AMOUNTS:
(a) Grantor will duly pay and discharge, or cause to be paid
and discharged, the Impositions before the earlier of (i) the day any
fine, penalty, interest or cost may be added thereto or imposed thereon
or (ii) the day any Lien may be filed for the non-payment thereof;
provided, however, that (1) Grantor may, if permitted by law and if
such installment payment would not result in the imposition of any
fine, penalty or cost on the
14
remaining amount then due, pay the Impositions in installments whether
or not interest shall accrue on the unpaid balance of such Impositions,
and (2) unless an Event of Default, or any material Default, has
occurred and is continuing, Grantor shall not be required to pay and
discharge or to cause to be paid and discharged any such Impositions so
long as (u) the validity or amount thereof shall be contested
diligently and in good faith by appropriate proceedings, (v) the
Mortgaged Property shall then be in no danger of being sold, forfeited
or lost pursuant to such contest, and (w) adequate reserves have been
set aside by Grantor to pay the Impositions, and any fine, penalty,
interest or cost that may be added thereto or imposed thereon, in
accordance with Generally Accepted Accounting Principles, consistently
applied by Grantor in connection therewith.
(b) Notwithstanding the foregoing subsection (a), but subject
to subsection (c) below, Grantor (i) shall pay all lawful claims and
demands of mechanics, materialmen, laborers and others with respect to
the Mortgaged Property before the earlier of (y) the day any fine,
penalty, interest or cost may be added thereto or imposed thereon or
(z) the day any Lien or claim of Lien may be filed for the non-payment
thereof; and (ii) shall not create or suffer or permit any mechanic's
liens or claims of lien, materialmen's liens or claims of lien, or
other liens or claims for lien made by parties claiming to have
provided labor or materials with respect to the Mortgaged Property
(which liens and claims of lien are herein referred to as "Mechanic's
Liens") to attach to or be filed against the Mortgaged Property,
whether such Mechanic's Liens are inferior or superior to the lien of
this Deed of Trust, except to the extent permitted by subsection (c)
below.
(c) Notwithstanding the foregoing prohibition against
Mechanic's Liens against the Mortgaged Property, Grantor, or any party
obligated to Grantor to do so, may in good faith and with reasonable
diligence by appropriate proceedings contest the validity or amount of
any Mechanic's Lien and defer payment and discharge thereof during the
pendency of such contest, provided: (i) that such contest shall have
the effect of preventing the sale or forfeiture of the affected Parcels
and any part thereof, or any interest therein, to satisfy any such
Mechanic's Lien; (ii) that, within twenty (20) days after Grantor has
been notified of the filing of any Mechanic's Lien, any affidavit
claiming a Mechanic's Lien or any notice of intention to file a
Mechanic's Lien, Grantor shall have notified Beneficiary and the
Designated Collateral Subagent in writing of Grantor's intention to
contest such Mechanic's Lien or to cause such other party to contest
such Mechanic's Lien; (iii) that to the extent required by applicable
Legal Requirements in connection with such contest, Grantor shall
deposit with the court or other applicable Person such bonds or other
security as is so required; and (iv) that adequate reserves have been
set aside by Grantor, in accordance with Generally Accepted Accounting
Principles, to pay in full such Mechanic's Lien and all interest which
may be due in connection therewith.
4.5 REPAIR: Grantor will maintain and preserve the Material Real
Property it uses in the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and will make all repairs,
replacements, renewals, additions, betterments, improvements and
15
alterations thereof and thereto, interior and exterior, structural and
non-structural, ordinary and extraordinary, foreseen and unforeseen, which are
necessary to keep same in such order and condition.
4.6 INSURANCE: Grantor will maintain or cause to be maintained upon and
relating to the Mortgaged Property policies of liability and casualty insurance
in amounts and otherwise in accordance with the Senior Credit Documents, the
Security Documents and this Section 4.6. In addition to the policies referred to
above, Grantor will maintain the following policies:
(a) Prior to construction of any improvements on the Mortgaged
Property, an "all-risk", completed value, non-reporting builder's risk
insurance policy or policies that provide coverage similar to the
foregoing must be submitted to the Designated Collateral Subagent. This
policy must be from a company and in an amount satisfactory to the
Designated Collateral Subagent, must have a vandalism and malicious
mischief endorsement and must be sufficient to avoid the application of
any co-insurance provisions, must include provisions for a minimum
30-day advance written notice of any intended policy cancellation or
non-renewal, and must designate the Beneficiary and the Designated
Collateral Subagent as mortgagee and loss payee in a standard mortgagee
endorsement
Address: Bank of America, N.A.
101 North Tryon Street
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
(b) The Grantor covenants to maintain or cause to be
maintained, by the Grantor and, during the construction of any
improvements on the Mortgaged Property, the general contractor, general
accident and public liability insurance against all claims for bodily
injury, death or property damage occurring upon, in or about any part
of the Mortgaged Property. The policies must be from companies and in
amounts satisfactory to the Designated Collateral Subagent. The
contractor's policy must include worker's compensation coverage in an
amount sufficient to satisfy statutory requirements.
(c) An "all-risk" permanent insurance policy must be in
effect, and an original certificate from the issuing insurance company
evidencing that the policy is in full force and effect must be
submitted to the Designated Collateral Subagent. The policy must be
from a company satisfactory to the Designated Collateral Subagent, must
be in an amount satisfactory to the Designated Collateral Subagent,
must eliminate all co-insurance provisions, must include a Replacement
Cost and Agreed Amount/Stipulated Value Endorsement, must include a
Sinkhole Endorsement, if appropriate, must include provisions for a
minimum 30-day advance written notice to the Designated Collateral
Subagent of any intended policy cancellation or non-renewal, and must
designate the
16
Beneficiary and the Designated Collateral Subagent as mortgagee and
loss payee in a standard mortgagee endorsement, as its interest may
appear.
(d) The Grantor shall, at its own cost, maintain rent
loss/business interruption insurance as to the Buildings now or
hereafter comprising a part of the Mortgaged Property and being used by
Grantor in the conduct of its business. The policy must be from a
company and in an amount satisfactory to the Designated Collateral
Subagent and must include provisions for a minimum 30-day advance
written notice to the Designated Collateral Subagent of any intended
policy cancellation or non-renewal.
(e) If, and to the extent that, the Mortgaged Property is
located within an area that has been or is hereafter designated or
identified as an area having special flood hazards as defined in the
Federal Flood Disaster Protection Act of 1973, as such act may from
time to time be amended and in effect, or pursuant to any other
national or state program of flood insurance, the Grantor shall carry
flood insurance with respect to the Mortgaged Property in an amount not
less than the maximum amount available under the Flood Disaster
Protection Act of 1973 and the regulations issued pursuant thereto, as
amended from time to time, in form complying with the "insurance
purchase" requirement of that Act.
(f) Each such liability insurance policy shall name the
Beneficiary and the Designated Collateral Subagent and each General
Secured Party as an additional insured party with respect to the
Mortgaged Property, and each such casualty insurance policy shall name
the Beneficiary and the Designated Collateral Subagent as a loss payee,
and shall provide by way of endorsements, riders or otherwise that (i)
proceeds will be payable to the Designated Collateral Subagent as its
interest may appear; (ii) the Designated Collateral Subagent will be
loss payee for all proceeds payable if the proceeds payable are equal
to or greater than $1,000,000 in amount on a per occurrence or claim
basis; (iii) such insurance policy shall be renewed, if renewal is
available, and shall not be canceled and further, shall not be
endorsed, altered or reissued to effect a change in coverage in any
manner materially adverse to the Beneficiary or the Designated
Collateral Subagent, for any reason and to any extent whatsoever unless
such insurer shall have first given the Designated Collateral Subagent
thirty (30) days' prior written notice thereof; (iv) such insurance
policy shall not be impaired by any act or neglect of Grantor or any
use of the Mortgaged Property for purposes more hazardous than are
permitted by such policy; and (v) the Beneficiary or the Designated
Collateral Subagent may, but shall not be obliged to, make premium
payments to prevent any nonrenewal, cancellation, endorsement,
alteration or reissuance and such payments shall be accepted by the
insurer to prevent same.
(g) The Designated Collateral Subagent shall be furnished with
the original of each such initial policy or a certificate with a
duplicate of such original policy coincident with the execution of this
Deed of Trust and satisfactory evidence of renewal thereof not less
than thirty (30) days prior to the expiration of the initial or each
preceding renewal
17
policy together with receipts or other evidence that the premiums
thereon have been paid, with the original of each renewal policy or a
certificate with a duplicate of such renewal policy to follow as soon
as available or, in any such case, an appropriate broker's certificate
in respect thereto. Upon request by the Designated Collateral Subagent,
Grantor shall furnish to the Designated Collateral Subagent a statement
certified by Grantor or a duly authorized officer of Grantor of the
amounts of insurance maintained in compliance with this Section 4.6, a
general description of the risks covered by such insurance and of the
insurance company or companies which carry such insurance. In addition,
Grantor will promptly comply with any and all requirements of any
insurer of any portion of the Mortgaged Property and any and all rules
and regulations of any insurance commission or board of fire
underwriters having jurisdiction over the Mortgaged Property.
4.7 RESTORATION FOLLOWING CASUALTY: If any acts or occurrences of any
kind or nature, ordinary or extraordinary, foreseen or unforeseen, shall result
in damage to or loss or destruction of the Mortgaged Property, Grantor will give
prompt notice thereof to Beneficiary and the Designated Collateral Subagent. If
(a) there are sufficient insurance proceeds or sufficient other amounts
available to Grantor to fully pay for the restoration, repair or replacement
(hereinafter called "Work") of the Mortgaged Property and the projected
appraised value of the Mortgaged Property upon completion of the Work is equal
to or greater than the appraised value of the Mortgaged Property immediately
prior to the casualty, (b) no Default or Event of Default shall have occurred
and be continuing, (c) all parties having commitments to provide financing with
respect to the Mortgaged Property, to purchase Grantor's interest in full or in
part in the Mortgaged Property or to purchase the General Senior Obligations
agree in a manner satisfactory to the Designated Collateral Subagent that their
commitments will continue in full force and effect and, if necessary, the
expiration of such commitments will be extended by the time necessary to
complete the restoration or repair, and (d) neither the Beneficiary nor the
Designated Collateral Subagent will incur any liability to any other person as a
result of such use or release of insurance proceeds, then Grantor will so
certify to Beneficiary and the Designated Collateral Subagent, and will certify
that it will, and shall, within 30 days following reaching an agreement with the
insurer under the property insurance policy relating thereto with regard to the
disbursement of insurance proceeds commence and thereafter continue diligently
to completion, to restore, repair, replace and rebuild such Mortgaged Property
as nearly as possible to its value, condition and character immediately prior to
such damage, loss or destruction with such alterations, modifications and/or
betterments reasonably deemed necessary or desirable by Grantor in its business
judgment. If the conditions set forth in such certificate of Grantor are not
satisfied with respect to an occurrence resulting in a claim against the
Grantor's property insurance policy, or if Grantor fails to deliver such a
certificate to Beneficiary and the Designated Collateral Subagent within 180
days following such occurrence, or if Grantor shall otherwise fail to restore,
repair, replace or rebuild such Mortgaged Property as provided herein, the
insurance proceeds related thereto shall be promptly paid to the Designated
Collateral Subagent and held in a segregated cash collateral account as
collateral security for the General Senior Obligations until the earliest to
occur of (i) the Security Termination Date, at which time such proceeds shall be
paid to the Grantor, (ii) the occurrence of an Event of Default, at which time
such proceeds shall be applied (subject to compliance with
18
Senior Debt Intercreditor Agreement) to the General Senior Obligations, or (iii)
the Required General Secured Parties direct the Beneficiary in writing to
release such proceeds to the Grantor, at which time such proceeds shall be paid
to the Grantor.
4.8 APPLICATION OF PROCEEDS: Insurance proceeds to be used for Work,
which proceeds are equal to or greater than $1,000,000 on a per occurrence or
claim basis, initially shall be paid to the Designated Collateral Subagent, and
shall be paid out by the Designated Collateral Subagent to Grantor from time to
time as the Work progresses, subject to the following conditions: (a) prior to
the commencement thereof (other than Work to be performed on an emergency basis
to protect the Mortgaged Property or prevent interference therewith), an
architect, engineer or construction manager, reasonably approved by the
Designated Collateral Subagent, shall be retained by Grantor (at Grantor's
expense) and charged with the supervision of the Work; (b) each request for
payment by Grantor shall be made on ten (10) days prior notice to the Designated
Collateral Subagent and shall be accompanied by a certificate by an executive
officer of Grantor, stating that: (i) all of the Work completed has been
completed in substantial compliance with the plans and specifications therefor;
(ii) the sum requested is justly required to reimburse Grantor for payments by
Grantor to, or is justly due to, the contractor, subcontractors, materialmen,
laborers, engineers, architects or other Persons rendering services or materials
for the Work; and (iii) when added to all sums previously paid out by Grantor,
the sum requested does not exceed the value of the Work completed to the date of
such certificate; (c) the amount of insurance proceeds remaining in the hands of
the Designated Collateral Subagent or remaining to be disbursed by the
applicable insurance company, plus any further reserves agreed to be maintained
by Grantor in conformity with Generally Accepted Accounting Principles in
connection with the Work, will in the Designated Collateral Subagent's
reasonable judgment be sufficient to complete the Work; (d) each request shall
be accompanied by certification by an executive officer of Grantor or copies of
waivers of Lien reasonably satisfactory in form and substance to the Designated
Collateral Subagent covering that part of the Work for which payment or
reimbursement is being requested; provided, however, that in the event it is
customary State practice not to grant such waivers prior to the making of such
payments, Grantor shall have obtained affidavits from the parties requesting
such payment (i) stating the amount then due and (ii) promising the delivery of
the waiver upon the making of the payment; (e) a Default has not occurred and is
not continuing since the hazard, casualty or contingency giving rise to payment
of the insurance proceeds occurred; (f) in the case of the request for the final
disbursement, such request is accompanied by a copy of any certificates of
occupancy or other certificate required by any Legal Requirement to render
occupancy of the damaged portion of the Mortgaged Property lawful; and (g) if,
in the Designated Collateral Subagent's reasonable judgment, the amount of such
insurance proceeds will not be sufficient to complete the Work (which
determination may be made prior to or from time to time during the performance
of the Work), Grantor shall maintain adequate reserves in conformity with
Generally Accepted Accounting Principles equal to an amount of money which when
added to such insurance proceeds will be sufficient, in the Designated
Collateral Subagent's reasonable judgment, to complete the Work. Insurance
proceeds to be used for Work, which proceeds are less than $1,000,000 on a per
occurrence or claim basis, initially shall be paid to Grantor and shall be used
by Grantor to perform such Work in accordance with its certificate delivered
pursuant to Section
19
4.7, with any excess thereof being retained by the Grantor. In the event Grantor
elects to restore, repair, replace or rebuild the Mortgaged Property and
subsequently fails to comply with any of the conditions set forth herein for
disbursement of insurance proceeds, any proceeds remaining to be disbursed,
whether held by Grantor, Beneficiary, the Designated Collateral Subagent or an
insurance company, shall be paid to the Designated Collateral Subagent and held
in a segregated cash collateral account as collateral security for the General
Senior Obligations until the earliest to occur of (i) the Security Termination
Date, at which time such proceeds shall be paid to the Grantor, (ii) the
occurrence of an Event of Default, at which time such proceeds shall be applied
(subject to compliance with the Senior Debt Intercreditor Agreement) to the
General Senior Obligations, or (iii) the Required General Secured Parties direct
the Beneficiary in writing to release such proceeds to the Grantor, at which
time such proceeds shall be paid to the Grantor.
4.9 INSPECTION: Grantor will permit Trustee, Beneficiary, the
Designated Collateral Subagent, any of the General Secured Parties and any of
their agents, representatives and employees, upon reasonable advance notice to
Grantor to inspect the Mortgaged Property at any reasonable time.
4.10 LEASES:
(a) Grantor shall promptly and fully keep, observe and
perform, or cause to be kept, observed and performed, all of the
material terms, covenants, provisions and agreements imposed upon or
assumed by Grantor under any Leases, now or hereafter in effect,
including any amendments or supplements to such Leases covering any
part of the Mortgaged Property that is affected by the terms,
covenants, provisions and agreements imposed upon or assumed by Grantor
in such Leases and Grantor will not do or fail to do, or permit or fail
to permit to be done, any act or thing, the doing or omission of which
will give any party a right to terminate any of such Leases or, in the
case of any tenant, to abate the rental or other material payment due
thereunder;
(b) If Grantor shall, in any manner, fail to comply with
subsection (a) above, Grantor agrees that Beneficiary or the Designated
Collateral Subagent may (but shall not be obligated to) take, upon ten
(10) days' written notice to Grantor (or upon lesser notice, or without
notice, if Beneficiary reasonably deems that the same is required to
protect its interest in the Mortgaged Property), any action which
Beneficiary or the Designated Collateral Subagent shall reasonably deem
necessary or desirable to keep, observe and perform or cause to be
kept, observed or performed any such terms, covenants, provisions or
agreements and to enter upon the Mortgaged Property and take all action
thereon as may be necessary therefor, or to prevent or cure any default
by Grantor in the performance of or compliance with any of Grantor's
covenants or obligations under said Leases. Beneficiary and the
Designated Collateral Subagent may rely on any notice of default
received from any tenant unless, in connection with any such default or
alleged default Grantor in good faith notifies Beneficiary and the
Designated Collateral Subagent of Grantor's election to contest such
default by appropriate procedures and diligently pursues such contest.
Grantor
20
shall promptly deliver to Beneficiary and the Designated Collateral
Subagent a copy of any notice relating to defaults received from any
tenant that is a party, or the trustee, receiver or successor for or to
a party, to any of said Leases. Beneficiary or the Designated
Collateral Subagent may expend such sums of money as are reasonable and
necessary for any such purposes, and Grantor hereby agrees to pay to
Beneficiary and the Designated Collateral Subagent, immediately upon
demand, all sums so expended by Beneficiary or the Designated
Collateral Subagent, together with interest thereon from the date of
such payment at the Default Rate, and until so paid by Grantor, all
sums so expended by Beneficiary or the Designated Collateral Subagent
and the interest thereon shall be added to the General Senior
Obligations secured by the lien and legal operation and effect of this
Deed of Trust; and
(c) Grantor will not, without the prior written consent of the
Beneficiary and the Designated Collateral Subagent, amend, modify,
terminate or cancel any of the Leases of any part of the Mortgaged
Property in any way which could reasonably be expected to materially
adversely affect the interests of the General Secured Parties.
4.11 [INTENTIONALLY OMITTED]
4.12 TAXES: Grantor shall pay, together with interest, fines, and
penalties, if any, any documentary stamp, recording, transfer, mortgage,
intangibles (including without limitation all recurring intangible taxes) or
other taxes or fees whatsoever due under the laws of the State in connection
with the making, execution, delivery, filing of record, recordation, assignment,
release, or discharge of any of the Senior Credit Documents or in connection
with any advances made thereunder. This obligation shall survive the repayment
of the General Senior Obligations and shall continue for so long as Beneficiary
could be assessed for such taxes or fees, or for penalties or interest with
respect to such taxes or fees.
4.13 COLLECTION COSTS: In the event that this Deed of Trust is
foreclosed, or in the event this Deed of Trust is put into the hands of an
attorney for collection, suit, action or foreclosure, or in the event of the
foreclosure of any mortgage prior to or subsequent to this Deed of Trust, in
which proceeding Beneficiary or the Designated Collateral Subagent is made a
party, or in the event of the bankruptcy of the Grantor, or an assignment by the
Grantor for the benefit of creditors, Grantor, its successors and assigns, shall
be chargeable with and agrees to pay all costs of collection and defense,
including an amount as attorneys' fees not to exceed such amount as may be
permitted by the laws of the applicable State including reasonable actual
attorneys' fees for all appellate proceedings and post-judgment action involved
therein, which shall be due and payable at once together with all required
service or use taxes; the payment of which charges, fees and taxes together with
all costs and expenses, shall be secured hereby, and may be recovered in any
suit or action hereupon or hereunder.
4.14 RESERVES:
21
(a) If the Designated Collateral Subagent so requires, Grantor
shall deposit with the Designated Collateral Subagent from time to time
a sum, as reasonably estimated by the Designated Collateral Subagent,
equal to (i) the Impositions (ii) the rents under any ground lease, if
any, and (iii) the premiums next due on the insurance policies required
under this Deed of Trust, less all sums already deposited therefor,
divided by the number of months to elapse before two months prior to
the beginning of such tax year or the date when such Impositions, rents
and premiums will become delinquent, as the case may be. The Designated
Collateral Subagent may require Grantor to deposit with the Designated
Collateral Subagent, in advance, such other sums for other taxes,
assessments, premiums, charges, and impositions in connection with the
Property as the Designated Collateral Subagent deems necessary to
protect Beneficiary's interests (collectively, the "Other Reserves").
Such sums for Other Reserves shall be deposited in a lump sum or in
periodic installments, at the Designated Collateral Subagent's option.
If requested by the Designated Collateral Subagent, Grantor shall
promptly deliver to the Designated Collateral Subagent all bills and
notices with respect to any rents, taxes, assessments, premiums, and
Other Reserves. All sums deposited with the Designated Collateral
Subagent under this Section 4.14 are hereby pledged to the General
Collateral Agent for the benefit of the General Secured Parties as
additional security for the General Senior Obligations.
(b) All sums deposited by Grantor under this Section 4.14
shall be held by the Designated Collateral Subagent and applied in such
order as Beneficiary or the Designated Collateral Subagent elects to
pay such Impositions, rents, premiums, and Other Reserves; in the Event
of Default hereunder, such sums may be applied, in whole or in part, to
the indebtedness secured hereby in accordance with the Senior Debt
Intercreditor Agreement. The arrangement provided for in this Section
4.14 is solely for the added protection of Beneficiary and entails no
responsibility on Beneficiary's part beyond the allowing of due credit,
without interest, for the sums actually received by it. Upon any
assignment of this Deed of Trust by Beneficiary, any funds on hand
shall be turned over to the assignee and any responsibility of
Beneficiary with respect thereto shall terminate. Each permitted
transfer of the Mortgaged Property shall automatically transfer to the
grantee all rights of Grantor with respect to any funds accumulated
hereunder.
(c) If the total deposits held by the Designated Collateral
Subagent under this Section 4.14 exceeds the amount deemed necessary by
the Designated Collateral Subagent to provide for the payment of such
Impositions, rents, premiums, and Other Reserves as the same fall due,
then such excess shall be credited by the Designated Collateral
Subagent on the next due installment or installments of such deposits,
provided no Event of Default then exists hereunder. If at any time the
total deposits held by the Designated Collateral Subagent is less than
the amount deemed necessary by the Designated Collateral Subagent to
provide for the payment thereof as the same fall due, then Grantor
shall deposit the deficiency with the Designated Collateral Subagent
within 30 days after written notice to Grantor stating the amount of
the deficiency.
22
4.15 ESTOPPEL CERTIFICATES: Grantor, upon request of the Designated
Collateral Subagent, shall, from time to time, certify to the best of its
knowledge to Beneficiary and the Designated Collateral Subagent or to any
permitted assignee of this Deed of Trust, by an instrument in form satisfactory
to the Designated Collateral Subagent or such assignee, in its reasonable
discretion, duly acknowledged, inter alia, the amount then owing under the
Senior Credit Documents and the date through which interest thereon has been
paid, and whether any offsets, counterclaims, credits, or defenses exist against
payment thereof or performance of any of the Senior Debt Obligations of Grantor
under the Senior Credit Documents or this Deed of Trust, within ten (10) days of
such request. Beneficiary, the Designated Collateral Subagent and any permitted
assignee of this Deed of Trust shall have the right to rely on any such
certification.
4.16 CREATION AND RECORDATION OF ADDITIONS AND BETTERMENTS: Grantor
shall arrange for timely recording or filing as required of all documents having
to do with additions to or betterments of any portion of the Mortgaged Property,
and the covenants and agreements set forth in this Deed of Trust shall apply to
all such additions and betterments.
4.17 CONSENTS: Grantor will obtain and maintain the consent or approval
of any Person whose consent or approval is required to the granting of a Lien on
any interest in the Mortgaged Property to the Beneficiary.
4.18 [INTENTIONALLY OMITTED]
4.19 [INTENTIONALLY OMITTED]
4.20 [INTENTIONALLY OMITTED]
4.21 CHANGE OF NAME OR ADDRESS: Within 10 days following any change in
Grantor's name or address (as specified in the Loan Documents), Grantor shall
give written notice of such change to Beneficiary and the Designated Collateral
Subagent, and shall promptly execute (and acknowledge, as necessary) all
documents and agreements reasonably required by Beneficiary or the Designated
Collateral Subagent to confirm or maintain the security interests granted herein
or in the other Senior Credit Documents.
4.22 [INTENTIONALLY OMITTED]
4.23 NOTICE OF AND RESPONSE TO ENVIRONMENTAL COMPLAINT: Grantor shall
give to the Beneficiary and the Designated Collateral Subagent immediate written
notice and true, accurate and complete copies of any material complaint, order,
directive, claim, citation or notice by any governmental authority or any Person
to Grantor, any Subsidiary or any successor relating to any (a) violation or
alleged violation by the Grantor or any Subsidiary or any tenant of the
Mortgaged Property of any Environmental Law; (b) release or threatened release
by or on behalf of the Grantor or any Subsidiary or any tenant or by any person,
handling, transporting or disposing of any Hazardous Material on behalf of
Grantor or any Subsidiary or any such tenant or at any facility
23
or property owned or leased or operated by Grantor or any Subsidiary or any
tenant, of any Hazardous Material; or (c) liability or alleged liability of the
Grantor or any Subsidiary or any such tenant for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous Materials. Such
notice shall include, among other information, the name of the party making the
claim, the nature of the claim and the actual or potential amount of the claim.
Grantor shall, within the time period permitted and to the extent required by
the applicable Environmental Law or the governmental authority responsible for
enforcing such Environmental Law, remove, remedy, or respond to or cause to be
removed, remedied or responded to, any violation of any Environmental Law or any
release of any Hazardous Material or satisfy any liability for the costs of
cleaning up, removing, remediating or responding to a release of Hazardous
Materials.
4.24 INDEMNIFICATION: THE GRANTOR HEREBY AGREES THAT IT WILL REIMBURSE
THE TRUSTEE, THE BENEFICIARY, THE DESIGNATED COLLATERAL SUBAGENT AND EACH OF THE
GENERAL SECURED PARTIES FOR, AND DEFEND, INDEMNIFY AND HOLD THE TRUSTEE, THE
BENEFICIARY, THE DESIGNATED COLLATERAL SUBAGENT AND EACH OF THE GENERAL SECURED
PARTIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HARMLESS
FROM AND AGAINST, ANY AND ALL CLAIMS, COSTS, EXPENSES, LOSSES, PENALTIES,
LIABILITIES AND DAMAGES (INCLUDING, WITHOUT LIMITATION, ASSESSMENT AND CLEANUP
COSTS AND REASONABLE ATTORNEYS', CONSULTANTS' AND OTHER EXPERTS' FEES, EXPENSES
AND DISBURSEMENTS) AND ALL JUDGMENTS, FINES AND PENALTIES INCURRED, ENTERED OR
LEVIED AGAINST THE TRUSTEE, THE BENEFICIARY, THE DESIGNATED COLLATERAL SUBAGENT
OR ANY OF THE GENERAL SECURED PARTIES BY ANY GOVERNMENTAL AGENCY OR AUTHORITY
ARISING DIRECTLY OR INDIRECTLY FROM, OR AS A RESULT OF OR IN CONNECTION WITH (A)
THE USE OF THE MORTGAGED PROPERTY; (B) THE USE OF THE FACILITIES THEREON; (C)
THE USE, GENERATION, STORAGE, TRANSPORTATION, TREATMENT, EMISSION, DISCHARGE,
DISPOSAL, RELEASE OR HANDLING OF ANY HAZARDOUS MATERIALS AT, UPON OR FROM THE
MORTGAGED PROPERTY; OR (D) THE VIOLATION OR ALLEGED VIOLATION OF ANY
ENVIRONMENTAL LAW BY GRANTOR OR ANY SUBSIDIARY EXCEPT TO THE EXTENT SUCH CLAIM
IS FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED FROM ANY SUCH INDEMNIFIED PARTY'S GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT. THE FOREGOING INDEMNITY SHALL INCLUDE WITHOUT LIMITATION
OF THE FOREGOING INDEMNITY, THE INDEMNITY OF EACH OF THE PARTIES INDEMNIFIED
HEREIN WITH RESPECT TO CLAIMS, DEMANDS, LOSSES, DAMAGES (INCLUDING CONSEQUENTIAL
DAMAGES) LIABILITIES, CAUSES OF ACTION, JUDGMENTS, PENALTIES, COSTS AND EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS) AND MATTERS WHICH IN
WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OTHER THAN GROSS
(WHETHER SOLE, CONTRIBUTORY, COMPARATIVE, OR
24
OTHERWISE) OF SUCH AND/OR ANY OTHER INDEMNIFIED PARTY OR FOR WHICH SUCH
INDEMNIFIED PARTY MAY HAVE STRICT LIABILITY. THE GRANTOR'S OBLIGATIONS UNDER
THIS SECTION 4.24 SHALL SURVIVE THE REPAYMENT OF THE SENIOR DEBT OBLIGATIONS,
THE OCCURRENCE OF THE SECURITY TERMINATION DATE, AND EXPIRATION OR TERMINATION
OF THIS DEED OF TRUST OR ANY FORECLOSURE OR A DEED IN LIEU OF FORECLOSURE OF
THIS DEED OF TRUST OR OTHER COLLATERAL SECURING THE SENIOR DEBT OBLIGATIONS.
4.25 OTHER AGREEMENTS: Without first obtaining on each occasion the
written approval of the Designated Collateral Subagent, the Grantor shall not,
except to the extent not prohibited by the Credit Agreement, enter into, cancel,
surrender or modify or permit the cancellation of any rental agreement,
management contract, franchise agreement, construction contract, technical
services agreement or other contract, license or permit now or hereafter
affecting the Material Real Property, or modify any of said instruments, or
accept or permit to be made any prepayment of any installment of rent or fees
thereunder. Certified copies of each such agreement shall be submitted to the
Designated Collateral Subagent as soon as possible. The Grantor shall faithfully
keep and perform, or cause to be kept and performed, all of the covenants,
conditions, and agreements contained in each of said instruments, now or
hereafter existing, on the part of the Grantor to be kept and performed
(including performance of all covenants to be performed under any and all leases
of the Material Real Property or any part thereof) and shall at all times do all
things necessary and appropriate to compel performance by each other party to
said instruments of all obligations, covenants and agreements by such other
party to be performed thereunder.
4.26 TRANSFER OF LICENSE: If Beneficiary acquires title to the
Mortgaged Property, Grantor shall execute, deliver and file or use its best
efforts to cause the tenant under the Lease of the Mortgaged Property to
execute, deliver and file all documents and statements requested by the
Beneficiary or the Designated Collateral Subagent to effect the transfer of the
licenses and other governmental authorizations necessary for the continued use
and operation of the Mortgaged Property, subject to any required approval of
governmental regulatory authorities, and shall provide to the Designated
Collateral Subagent all information and records required in connection
therewith.
ARTICLE V
NEGATIVE COVENANTS
Grantor hereby covenants and agrees with Beneficiary that, until the
Security Termination Date shall have occurred:
5.1 USE VIOLATIONS: Grantor will not use, maintain, operate or occupy,
or allow the use, maintenance, operation or occupancy of, any portion of the
Mortgaged Property in any manner
25
which would result in a violation of Section 4.2 above or make void, voidable or
cancelable, any insurance then in force with respect thereto.
5.2 WASTE: Grantor will not commit or permit any waste of the Mortgaged
Property or permit any nuisance to be maintained thereon.
5.3 TRANSFER OF MORTGAGED PROPERTY; PARTIAL RELEASE: Except as
permitted under the Senior Credit Documents, Grantor will not, without the prior
written consent of Beneficiary or the Designated Collateral Subagent acting at
the direction of the Required General Secured Parties, permit any of the
Mortgaged Property to be sold, transferred, conveyed, mortgaged, pledged,
encumbered, disposed of, leased or removed at any time (any or all of the
foregoing being referred to herein as a "Transfer"). If such Transfer is
permitted by the Required General Secured Parties, then, upon at least ten (10)
days' prior notice to Beneficiary and the Designated Collateral Subagent,
Grantor shall have the right to obtain from the Trustee and the Beneficiary, as
applicable, the release or reconveyance of such transferred portions of the
Mortgaged Property. As a condition of any such release or reconveyance, (i)
Grantor shall pay all trustees' fees, recording fees, escrow fees, attorneys'
fees and other costs and expenses incurred by Beneficiary, the Designated
Collateral Subagent and/or Trustee in connection with any release or
reconveyance given hereunder; and (ii) Grantor shall deliver to the Designated
Collateral Subagent such evidence as the Designated Collateral Subagent
reasonably requests that (A) such release or reconveyance of any portion of the
Mortgaged Property can be done in compliance with all applicable subdivision and
other laws and regulations, and (B) Beneficiary's and the General Secured
Parties' rights and remedies with respect to the remaining Mortgaged Property
under the Senior Credit Documents will not be impaired by such release or
reconveyance.
5.4 RIGHTS OF REVERTER AND POWERS OF TERMINATION: With respect to any
fee-owned Parcel of Mortgaged Property subject to a right of reverter or power
of termination, and so long as such right or power is or may be enforceable,
Grantor:
(a) will not take or omit to take any action or change the use
of such Parcel or otherwise so as to enable the beneficiary of such
right or power to enforce or obtain the benefit of such reversion or
termination; and
(b) will not file for or otherwise initiate any proceedings to
abandon such Parcel.
ARTICLE VI
DEFAULT AND FORECLOSURE
6.1 REMEDIES: Upon and after the occurrence of an Event of Default
under any of the Senior Credit Documents (collectively, an "Event of Default"),
and if upon and after
26
such occurrence all or any portion of the General Senior Obligations then
remaining unpaid shall have been declared due and payable in accordance with the
applicable Senior Credit Documents, then, without notice or demand, which are
hereby expressly waived to the extent permitted under applicable law, the
Trustee, Beneficiary or the Designated Collateral Subagent, as applicable, may,
and upon the written directions of the Required Enforcement General Secured
Parties shall, exercise any or all of the following rights, remedies and
recourses:
(A) ENTRY UPON MORTGAGED PROPERTY: To the extent permitted by
applicable Legal Requirements, enter upon all or any part of the
Mortgaged Property and take exclusive possession thereof and of all
books, records and accounts relating thereto. If Grantor remains in
possession of all or any part of the Mortgaged Property after an Event
of Default and without Beneficiary's prior written consent thereto,
Trustee, Beneficiary or the Designated Collateral Subagent, as
applicable, may invoke any and all legal remedies to dispossess
Grantor, including without limitation one or more actions for forcible
entry and detainer, trespass to try title and writ of restitution.
Nothing contained in the foregoing sentence shall, however, be
construed to impose any greater obligation or any prerequisites to
acquiring possession of the Mortgaged Property after an Event of
Default than would have existed in the absence of such sentence.
(B) OPERATION OF MORTGAGED PROPERTY:
(i) To the extent permitted by applicable Legal
Requirements, by itself or by the appointment of a receiver in
accordance with applicable Legal Requirements, hold, lease,
manage, operate or otherwise use or permit the use of all or
any portion of the Mortgaged Property, either by itself or by
other persons, firms or entities, in such manner, for such
time and upon such other terms as Trustee, Beneficiary or the
Designated Collateral Subagent, as applicable, may deem to be
prudent and reasonable under the circumstances (making such
repairs, alterations, additions and improvements thereto and
taking any and all other action with reference thereto, from
time to time, as Beneficiary or the Designated Collateral
Subagent shall reasonably deem necessary or desirable), and
apply all Rents and other amounts collected by Trustee or
Beneficiary or Designated Collateral Subagent in connection
therewith in accordance with the provisions of Section 6.6
below.
27
(ii) To the extent permitted by applicable Legal
Requirements, as attorney-in-fact or agent of the Grantor, or
in its own name as Beneficiary or by the appointment of a
receiver in accordance with applicable Legal Requirements and
under the powers herein granted, hold, operate, manage, and
control all or any portion of the Mortgaged Property and
conduct the business, if any, thereof, either personally or by
its agents, and to exercise the powers described in Section
8.3 hereof. Such remedies may be exercised cumulatively and
concurrently, and in this respect Beneficiary and the
Designated Collateral Subagent shall be entitled to avail
itself of the benefits and rights stated in Section 6.3 below.
(C) FORECLOSURE: Institute a proceeding, judicial or
otherwise, for the complete foreclosure of this Deed of Trust to the
fullest extent permitted by law; or (ii) institute a proceeding or
proceedings, judicial or otherwise, for the partial foreclosure of this
Deed of Trust, as permitted by applicable Legal Requirements for the
portion of the General Senior Obligations then due and payable, with
this Deed of Trust then continuing unimpaired and without loss of
priority so as to secure the balance of the General Senior Obligations.
(D) SALE: To the extent permitted by applicable Legal
Requirements, sell or offer for sale the Mortgaged Property, in such
portions, order and parcels as Trustee may determine, with or without
having first taken possession of same, to the highest bidder for cash
in lawful money of the United States at public auction in accordance
with applicable Legal Requirements, or the UCC, and in the event of a
sale, by foreclosure or otherwise, of less than all of the Mortgaged
Property, this Deed of Trust shall continue as a lien and security
interest on the remaining portion of the Mortgaged Property. Trustee
may postpone any sale by public announcement at the time and place
noticed for the sale. If the Mortgaged Property consists of several
lots, Parcels or items of property, Trustee may, in its sole discretion
and to the extent permitted by applicable law: (i) designate the order
in which such lots, parcels or items shall be offered for sale or
sales, or (ii) elect to sell such lots, parcels or items through a
single sale, or through two or more successive sales or in any other
manner Trustee deems in its best interest. Should Trustee desire that
more than one sale or other disposition of the Mortgaged Property or
any portion thereof be conducted simultaneously, or successively, on
the same day, or at such different days or times and in such order as
Trustee may deem to be in its best interests, no such sale shall
terminate or otherwise affect the lien and security interest of this
Deed of Trust on any part of the Mortgaged Property not sold until all
the General Senior Obligations have been Fully Satisfied. Grantor shall
pay the Expenses of any sale of the Mortgaged Property, whether one or
more, and of any judicial proceedings wherein the same may be made,
including reasonable compensation to Trustee, its agents and counsel,
and shall pay all expenses, liabilities and advances made or incurred
by Trustee in connection with such sale or sales, together with
interest on all such advances made by Trustee at the Default Rate. Upon
any sale hereunder, Trustee shall execute and deliver to the purchaser
or purchasers a deed or deeds conveying the property so sold, but
without any covenant or warranty whatsoever, express or implied,
whereupon such purchaser or purchasers shall be let into immediate
possession; and the recitals in any such deed or deeds of facts, such
as default, the giving of notice of default and notice of sale, and
other facts affecting the regularity or validity of such sale or
disposition, shall be conclusive proof of the truth of such facts; and
any such deed or deeds shall be conclusive against all persons as to
such facts recited therein.
(E) TRUSTEE OR RECEIVER: Prior to, upon or at any time after,
commencement of foreclosure of the lien, security title and security
interest provided for herein or any legal proceedings pursuant hereto,
make application to a court of competent jurisdiction for appointment
of a receiver of the Mortgaged Property. Such application may be made
as a
28
matter of strict right and without notice to Grantor (unless notice is
required by applicable Legal Requirements and such right of notice may
not be waived) or regard to the adequacy of the Mortgaged Property or
insolvency of the Grantor or any person who may be legally or equitably
liable to pay the General Senior Obligations and without giving bond to
Grantor (unless bond is required by applicable Legal Requirements and
such right of bond may not be waived), and Grantor does hereby
irrevocably consent to such appointment. Any such receiver shall have
all the usual powers and duties of receivers in similar cases,
including the full power to rent, maintain and otherwise operate the
Mortgaged Property all upon such terms as may be approved by the court,
and shall apply the Rents in accordance with the provisions of this
Deed of Trust.
(F) SEPARATE SALES: To the extent permitted by applicable
Legal Requirements, the Mortgaged Property may be sold in one or more
Parcels and in such manner and order as Trustee, Beneficiary and the
Designated Collateral Subagent, as applicable, in their sole
discretion, may elect, it being expressly understood and agreed that
the right of sale arising out of any Event of Default shall not be
exhausted by any one or more sales.
(G) OTHER: Exercise any and all other rights, remedies and
recourses granted under the Loan Documents or now or hereafter existing
in equity or at law, by virtue of statute or otherwise, including,
without limitation, the right to bring an action in any court of
competent jurisdiction to foreclose this instrument as a realty
mortgage or enforce any of the terms hereof.
(H) REMEDIES CUMULATIVE, CONCURRENT AND NONEXCLUSIVE: Trustee,
Beneficiary and the Designated Collateral Subagent shall have all
rights, remedies and recourses granted in the Senior Credit Documents
and the General Security Instruments and available at law or equity
(including specifically those granted by the UCC in effect and
applicable to the Mortgaged Property) and, except as limited by
applicable Legal Requirements, the same (a) shall be cumulative and
concurrent; (b) may be pursued separately, successively or concurrently
against Grantor or against all or any portion of the Mortgaged
Property, at the sole discretion of Trustee; (c) may be exercised as
often as occasion therefor shall arise, it being agreed by Grantor that
the exercise 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; and (d) are intended to be, and shall be nonexclusive.
(I) COLLECTION OF COSTS AND EXPENSES: The Trustee, the
Beneficiary and the Designated Collateral Subagent shall be entitled to
receive all costs and expenses of the sale or repossession of the
Mortgaged Property including the Trustee's fees and reasonable
attorneys' fees or receiver's reasonable fee or commission, if any,
title and abstracting charges, reasonable attorneys' fees and a
reasonable auctioneer's fees, and all other costs and expenses incurred
in exercising its remedies hereunder.
29
6.2 NO CONDITIONS PRECEDENT TO EXERCISE OF REMEDIES: The Grantor shall
not be relieved of any obligation it has under the Senior Credit Documents by
reason of (i) the release, regardless of consideration, of any of the Mortgaged
Property or any other collateral held pursuant to any of the Senior Credit
Documents or the addition of any other property to the Mortgaged Property or any
other such collateral; (ii) any agreement or stipulation between any subsequent
owner of all or any portion of the Mortgaged Property and Beneficiary or the
Designated Collateral Subagent or any of the General Secured Parties extending,
renewing, rearranging or in any other way modifying the terms of any of the
Senior Credit Documents without first having obtained the consent of, given
notice to or paid any consideration to the Grantor, and in such event the
Grantor shall continue to be liable to make payment according to the terms of
any such extension or modification agreement unless expressly released and
discharged in writing by Beneficiary and the Designated Collateral Subagent; or
(iii) any other acts or occurrence, save and except payment and performance of
all of the General Senior Obligations and the occurrence of the Security
Termination Date.
6.3 RESORT TO COLLATERAL: For payment of the General Senior
Obligations, to the fullest extent permitted by applicable Legal Requirements,
Beneficiary and the Designated Collateral Subagent may resort to any other
security therefor held by Trustee in such order and manner as Beneficiary and
the Designated Collateral Subagent may elect, and such resort may be taken
concurrently or successively and in one or several consolidated or independent
judicial actions or lawfully taken non-judicial proceedings, or both.
6.4 WAIVERS: To the fullest extent permitted by applicable Legal
Requirements, Grantor hereby irrevocably and unconditionally, WAIVES and
RELEASES (a) all benefits that might accrue to Grantor by virtue of any present
or future law exempting the Mortgaged Property from attachment, levy or sale on
execution or providing for any appraisement, valuation, homestead exemption,
stay of execution, exemption from civil process, redemption or extension of time
for payment; (b) except as otherwise provided in the Senior Credit Documents,
all notices of any demand, presentment, Event of Default, intent to accelerate
or acceleration or the election by Trustee, Beneficiary, the Designated
Collateral Subagent, or any of the General Secured Parties (or any agent on
their behalf), as applicable, to exercise or the actual exercise of any right,
remedy or recourse provided for under any of the Senior Credit Documents; (c)
any right to a marshaling of assets or a sale in inverse order of alienation;
and (d) any restrictions or conditions upon the exercise by the Trustee,
Beneficiary or the Designated Collateral Subagent, as applicable, of the
remedies set forth in Section 6.1.
6.5 DISCONTINUANCE OF PROCEEDINGS: To the extent permitted by
applicable Legal Requirements, in case Trustee, Beneficiary, the Designated
Collateral Subagent, or any of the General Secured Parties (or any agent on
their behalf), as the case may be, shall have proceeded to invoke any right,
remedy or recourse permitted under any of the Senior Credit Documents and shall
thereafter elect to discontinue or abandon same for any reason, Trustee,
Beneficiary, the Designated Collateral Subagent, or any of the General Secured
Parties (or any agent on their behalf), as the case may be, shall have the
unqualified right so to do and, in such an event, the
30
Grantor, Trustee, Beneficiary and such other Person shall be restored to
their former positions with respect to the Senior Credit Documents, the
Mortgaged Property and otherwise, and the rights, remedies, recourses and powers
of Trustee, Beneficiary, the Designated Collateral Subagent and such other
Person shall continue as if same had never been invoked.
6.6 APPLICATION OF PROCEEDS:
(a) To the extent permitted by applicable Legal Requirements,
all proceeds received from the sale or other dispositions of the
Mortgaged Property, including but not limited to, the Rents and other
income generated by the holding, leasing, operating or other use of the
Mortgaged Property, pursuant to Article 6 of this Deed of Trust shall
be applied by the Trustee and/or Beneficiary or Designated Collateral
Subagent (or the receiver, if one is appointed), as applicable, to the
extent that funds are so available therefrom, in accordance with the
following priorities:
First: to the costs and expenses of the sale or possession of
the Mortgaged Property including the Trustee's or receiver's reasonable
fee or commission, if any, title and abstracting charges, reasonable
attorneys' fees and a reasonable auctioneer's fee if such expense has
been incurred;
Second: ratably to the satisfaction of the General Senior
Obligations in accordance with the terms of the Senior Debt
Intercreditor Agreement; provided, however, that the portion of such
proceeds applied to the Senior Revolving Credit Obligations shall be
further applied in accordance with the terms of the Credit Agreement;
Third: to the payment to whomsoever shall be entitled thereto
under applicable Legal Requirements, if the person who made the sale
knows who is entitled thereto. Otherwise, the surplus shall be paid to
the clerk of the superior, district or circuit court (or other court
having jurisdiction) of the county where the sale was had.
(b) If the Trustee and/or Beneficiary shall be ordered, in
connection with any bankruptcy, insolvency or reorganization of the
Grantor, to restore or repay to or for the account of the Grantor or
any of their creditors any amount theretofore received under this
Section 6.6, the amount for such restoration or repayment shall be
deemed to be a General Senior Obligation so as to place the Trustee
and/or Beneficiary or Designated Collateral Subagent in the position
they would have been in had such amount never been received by any
party hereto.
6.7 COOPERATION: If an Event of Default shall occur, Grantor will use
its best efforts to cooperate with Trustee, Beneficiary and the Designated
Collateral Subagent and promptly do all things reasonably required of it toward
obtaining all necessary authority and permission from any governmental authority
or otherwise to accomplish any disposition, abandonment or change in use of the
Mortgaged Property (or any portion thereof) as Trustee, Beneficiary or the
Designated
31
Collateral Subagent, as the case may be, may request in connection with the
exercise of rights and powers hereunder and under the Senior Credit Documents.
Without limiting the generality of the foregoing, following an Event of Default
and reasonable advance notice to Grantor, Grantor agrees upon such request
therefor to relocate operations located on the Mortgaged Property to accommodate
the disposition, abandonment, change in use or foreclosure by Trustee of any
portion thereof, provided that such relocation does not materially violate any
Legal Requirement applicable to Grantor or the Mortgaged Property.
ARTICLE VII
CONDEMNATION
7.1 GENERAL: Promptly following the date on which an executive officer
of Grantor obtains knowledge of the institution or the threatened institution of
any proceeding for the condemnation of all or any portion of the Mortgaged
Property, Grantor shall notify Trustee, Beneficiary and the Designated
Collateral Subagent of such fact. Grantor shall then, unless Beneficiary or the
Designated Collateral Subagent waives this requirement, file or defend its claim
in respect of such proceeding and prosecute same with due diligence to its final
disposition. Grantor may be the nominal party in such proceeding but Beneficiary
and the Designated Collateral Subagent shall be entitled to participate in same
and to be represented therein by counsel of its own choice, and Grantor will
deliver or cause to be delivered to Beneficiary and the Designated Collateral
Subagent such instruments as may be reasonably requested by it from time to time
to permit such participation. All proceeds received from any such condemnation
proceeding shall be paid to the Designated Collateral Subagent and held in a
segregated cash collateral account as collateral security for the General Senior
Obligations until the earliest to occur of (i) the Security Termination Date, at
which time such proceeds shall be paid to the Grantor, (ii) the occurrence of an
Event of Default, at which time such proceeds shall be applied (subject to
compliance with the Senior Debt Intercreditor Agreement) to the General Senior
Obligations, or (iii) the Required General Secured Parties direct the
Beneficiary in writing to release such proceeds to the Grantor, at which time
such proceeds shall be paid to the Grantor.
7.2 REBUILDING, RESTORATION AND REPAIR: In the event (a) no Default or
Event of Default shall have occurred and be continuing, (b) only a portion of
the Mortgaged Property is taken, (c) Grantor elects to rebuild, restore or
repair the remaining portion of the Mortgaged Property, (d) the cost of the
rebuilding, restoration or repair reasonably estimated by the Designated
Collateral Subagent shall not exceed $1,000,000.00, (e) there are sufficient
proceeds or other amounts available to Grantor to fully pay for the rebuilding,
restoration or repair of the Mortgaged Property and the projected appraised
value of the Mortgaged Property upon completion of the same is equal to or
greater than the appraised value of the Mortgaged Property immediately prior to
the condemnation, (f) all parties having commitments to provide financing with
respect to the Mortgaged Property, to purchase Grantor's interest in full or in
part in the Mortgaged Property or to purchase the General Senior Obligations
agree in a manner satisfactory to the Designated
32
Collateral Subagent that their commitments will continue in full force and
effect and, if necessary, the expiration of such commitments will be extended by
the time necessary to complete the restoration, and (g) the Beneficiary will not
incur any liability to any other person as a result of such use or release of
proceeds, then Grantor will so certify to Beneficiary and the Designated
Collateral Subagent, and will certify that it will and shall continue diligently
to completion to restore, repair, replace and rebuild such Mortgaged Property as
nearly as possible to its value, condition and character immediately prior to
such condemnation with such alterations, modifications and/or betterments
reasonably deemed necessary or desirable by Grantor in its business judgment.
With the certification described in the preceding sentence, then Grantor shall
deliver to the Designated Collateral Subagent plans and specifications for such
rebuilding, restoration or repair; and Grantor shall thereafter commence the
rebuilding, restoration or repair in accordance with the plans and
specifications required pursuant to the preceding provisions within sixty (60)
days after the date of the disbursement of the award or settlement, and complete
same to the satisfaction of the Designated Collateral Subagent within a
reasonable time thereafter. In the event each of the conditions set forth above
in the first sentence of this Section are satisfied except that the cost of
rebuilding, restoration or repair is in excess of $1,000,000.00, the above
provisions shall apply except that the proceeds shall be paid to Beneficiary and
disbursed in accordance with Section 4.8 (with all references to insurance
proceeds being revised to be condemnation proceeds). Upon completion of such
rebuilding, restoration and repair in accordance with the preceding provisions,
Grantor may apply such amount or settlement to the costs of such rebuilding,
restoration or repair. If (i) there is a total condemnation of the Mortgaged
Property, or (ii) if the cost of rebuilding, restoration or repair is reasonably
estimated to be in excess of $1,000,000.00, or (iii) if Grantor elects not to
rebuild, restore or repair as specified above, or (iv) the requirements set
forth above for rebuilding, restoration or repair after a partial condemnation
are not met to the Designated Collateral Subagent's satisfaction, then Grantor
shall pay to the Designated Collateral Subagent such award or settlement to be
held in a segregated cash collateral account as collateral security for the
General Senior Obligations until the earliest to occur of (i) the Security
Termination Date, at which time such proceeds shall be paid to the Grantor, (ii)
the occurrence of an Event of Default, at which time such proceeds shall be
applied (subject to the compliance with the Senior Debt Intercreditor Agreement)
to the General Senior Obligations, or (iii) the Required General Secured Parties
direct the Beneficiary in writing to release such proceeds to the Grantor, at
which time such proceeds shall be paid to the Grantor.
ARTICLE VIII
SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
8.1 ASSIGNMENT: Subject to the terms and conditions hereinafter set
forth, Grantor as debtor does hereby irrevocably transfer, assign and deliver
unto Beneficiary as secured party for its benefit and the ratable benefit of the
General Secured Parties, as security for the payment and performance of the
General Senior Obligations, and grant a security interest in, all of the right,
title and interest of Grantor in and to all of the following:
33
(a) The Leases;
(b) The Rents;
(c) The Fixtures; and
(d) The Personalty.
This assignment of rentals and any other assignments required by the
provisions hereof shall terminate and become null and void upon release of this
Deed of Trust.
The Grantor shall execute and deliver to Beneficiary and the Designated
Collateral Subagent, in form and substance satisfactory to Beneficiary and the
Designated Collateral Subagent, such financing statements and such further
assurances as required by applicable law or as Beneficiary and the Designated
Collateral Subagent may, from time to time, consider reasonably necessary to
create, perfect and preserve Beneficiary's security interest herein granted, and
Grantor will (or Beneficiary at its option may) cause such statements and
assurances to be recorded and filed at such times and places as may be required
or permitted by law to so create, perfect and preserve such security interest.
Trustee and Beneficiary shall have all the rights, remedies and
recourses with respect to the Personalty, Fixtures, Leases and Rents afforded a
secured party by the aforesaid UCC in addition to, and not in limitation of, the
other rights, remedies and recourses afforded by the Senior Credit Documents and
at law.
This instrument covers goods that are or are to become fixtures on the
Land described herein. This instrument shall be deemed to be a fixture filing
and for such purpose the following information is set forth:
(1) Name and Address of Debtor: as set forth on page 1 hereof.
(2) Name and Address of Secured Party: as set forth on page 1
hereof.
(3) Description of the types (or items) of property covered by
this financing statement: as set forth in Section 1.1 and this Section
8.1.
(4) Description of real estate to which collateral is attached
or upon which it is located: as set forth on Exhibit "A".
8.2 COLLECTION OF RENTS: Grantor absolutely and irrevocably assigns to
Beneficiary, with or without taking possession of the Land or the Buildings, the
Rents, and hereby authorizes and empowers Beneficiary and the Designated
Collateral Subagent to collect the Rents as the same shall become due, and does
hereby irrevocably direct each and all of the lessees, sublessees, licensees, or
other occupants of the Mortgaged Property to pay to Beneficiary or the
Designated Collateral Subagent, as either may direct, upon demand by Beneficiary
or the Designated
34
Collateral Subagent, the Rents. The foregoing assignment shall not impose upon
Beneficiary or the Designated Collateral Subagent any duty to produce Rents from
the Mortgaged Property, and shall not cause Beneficiary or the Designated
Collateral Subagent to be a "mortgagee-in-possession" for any purpose.
8.3 BENEFICIARY'S POWERS OF ATTORNEY: Grantor does hereby irrevocably
constitute and appoint each of Beneficiary and the Designated Collateral
Subagent, while this Deed of Trust remains in force and effect, its true and
lawful attorney-in-fact, coupled with an interest and with full power of
substitution, delegation and revocation, for Grantor and in its name, place and
stead, to enter and take possession of the Mortgaged Property after an Event of
Default by actual physical possession without the commencement of any action to
foreclose this Deed of Trust or to exercise any power of sale Beneficiary or the
Designated Collateral Subagent may have hereunder and to do and perform any or
all of the following actions, as fully as Grantor could do if personally
present, hereby ratifying and confirming all that either of Beneficiary and the
Designated Collateral Subagent, as attorney or its substitute, shall lawfully do
or cause to be done by virtue hereof:
(a) to enter into subordination and non-disturbance agreements
with respect to any Leases or with any of the tenants or lessees under
any of the Leases;
(b) to demand, collect, sue for, attach, levy, recover,
receive, compromise and adjust, and make, execute and deliver receipts,
releases, discharges or other instruments for all Rents, issues, and
other amounts that may hereafter become due, owing or payable with
respect to the Mortgaged Property or any part thereof from any present
or future tenants, lessees, sublessees, licensees or other occupants
thereof;
(c) to institute, prosecute to completion, or compromise and
settle, all summary proceedings, actions for rent or for removing any
and all tenants, lessees, sublessees, licensees or other occupants of
the Mortgaged Property or any part or parts thereof;
(d) to enforce or enjoin or restrain the violation of any of
the terms, provisions and conditions of any of the Leases;
(e) to pay, from and out of any Rents and issues collected in
respect of the Mortgaged Property or any part thereof, or from or out
of any other funds, any taxes, assessments, water rates, sewer rates,
or other government charges levied, assessed, or imposed against the
Mortgaged Property, or any portion thereof, and also any and all other
charges, costs and expenses which it may be reasonably necessary or
advisable for Beneficiary or the Designated Collateral Subagent to pay
in the management or operation of the Mortgaged Property, including
commissions for renting the Mortgaged Property or any portion thereof,
management and consulting fees, and legal expenses incurred in
enforcing claims, drafting and negotiating documents or for any other
services that may be required;
35
(f) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Personalty;
(g) to receive, indorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with subsection
(f) above;
(h) to file any claims or take any action or institute any
proceedings which the Beneficiary or the Designated Collateral Subagent
may deem necessary or desirable for the collection of any of the
Personalty or otherwise to enforce the rights of the Beneficiary with
respect to any of the Personalty, including without limitation the
execution, delivery and filing of financing statements, continuation
statements, affidavits or other security instruments and agreements
necessary to perfect, confirm and continue in effect the lien of this
Deed of Trust with respect to the Leases, the Rents, the Fixtures and
the Personalty; and
(i) to 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 Mortgaged Property, the
Leases and the Personalty, as fully as Grantor might do; provided,
however, that this Assignment shall not operate to place upon
Beneficiary or the Designated Collateral Subagent any responsibility or
obligation to take any of the above actions or any action whatsoever
with respect to the operation, control, care, management or repair of
the Mortgaged Property, and that any action taken or failure or refusal
to act by Beneficiary or the Designated Collateral Subagent under this
Deed of Trust shall be at Beneficiary's election and without any
liability on its part.
8.4 GRANTOR REMAINS LIABLE: Anything herein to the contrary
notwithstanding:
(a) Grantor shall remain liable under the Leases to the extent
set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Deed of Trust had not been
executed;
(b) the exercise by the Beneficiary or the Designated
Collateral Subagent of any of the rights hereunder shall not release
the Grantor from any of its duties or obligations under any of the
Leases; and
(c) neither the Beneficiary nor the Designated Collateral
Subagent shall have any obligation or liability under any of the Leases
to any person or entity under this Deed of Trust nor shall the
Beneficiary be obligated to perform any of the obligations or duties of
the Grantor thereunder or to take any action to collect or enforce any
claims thereunder.
8.5 GRANTOR'S REPRESENTATIONS AND WARRANTIES: Grantor
represents and warrants that:
36
(a) No Rents, nor any part thereof becoming due subsequent to
the date hereof, have been collected with respect to the Leases
(excepting an amount not exceeding one month's installment under the
Leases), nor has payment of any of the same been anticipated, waived,
released, discounted or otherwise discharged or compromised;
(b) This Deed of Trust creates a valid security interest in
the Personalty as security for the payment and performance of the
General Senior Obligations. Upon the filing of financing statements
(the "Financing Statement") under the UCC naming the Grantor as debtor
and the Beneficiary as secured party and covering the Personalty, such
security interests shall be perfected under the UCC and such security
interests are not subject to any prior lien, or to any agreement
purporting to grant to any Person, other than the Beneficiary, a
security interest in any of the Personalty, in each case other than
with respect to the Permitted Encumbrances, the Priority Liens and the
Liens granted under the other Security Documents. No further filings,
recordings or other actions are necessary to perfect or maintain the
priority of such security interests other than the filing of UCC
continuation statements on or prior to the date required by applicable
Legal Requirements. The Financing Statements are in appropriate form
and have been duly filed pursuant to the UCC;
(c) The chief place of business and chief executive office of
the Grantor are located at the address first specified above for the
Grantor;
(d) Each of the Leases described in Section 4.10 hereof, as
amended to the date of execution and delivery hereof, true and complete
copies of which have been delivered to the Designated Collateral
Subagent, has been duly authorized, executed and delivered by Grantor
(and to Grantor's knowledge all other parties thereto) and is in full
force and effect and binding upon and enforceable against Grantor and,
to Grantor's knowledge, against the other parties thereto, in
accordance with its terms. No event has occurred and is continuing, or
will occur as a result of the performance of this Deed of Trust, that
constitutes or would constitute any material event of default under any
of the Leases or would constitute such an event of default but for the
requirement that notice be given or time lapse or both.
8.6 GRANTOR'S COVENANTS: In addition to Grantor's obligations in
Section 4.10, Grantor covenants and agrees with respect to the Leases that:
(a) It will perform and observe each of its material
obligations under the terms of the Leases now or hereafter in effect
(except when the amount or validity of such obligations is being
contested in good faith) and use best efforts to cause the other
parties thereto to comply with their obligations thereunder;
37
(b) It will, upon the reasonable written request by the
Designated Collateral Subagent, while this Assignment remains in force
and effect, serve written notices of this Assignment upon any lessor or
lessee, sublessee, licensee, or other occupant of any portion of the
Mortgaged Property or include among the written provisions of any
instrument hereafter creating any such lease, sublease, license, or
right of occupancy specific reference to this Assignment, and make,
execute and deliver all such powers of attorney or instrument of pledge
or assignment, and such other instrument or documents as the Designated
Collateral Subagent may reasonably request at any time for the purpose
of securing its rights hereunder;
(c) It will furnish to the Designated Collateral Subagent,
promptly following demand, true copies of all Leases hereafter executed
and true copies of each agreement or letter effecting the renewal,
amendment or modification of any Lease; and in each case after request
by the Designated Collateral Subagent, furnish to the Designated
Collateral Subagent promptly following receipt thereof copies of all
notices, requests and other documents received by the Grantor under or
pursuant to the Leases during the term of each of the Leases and from
time to time (A) furnish to the Designated Collateral Subagent such
information and reports regarding the Leases as the Designated
Collateral Subagent may reasonably request, and (B) promptly following
request of the Designated Collateral Subagent make such demands and
requests for information or action upon such person, firm, corporation,
or other entity as the Grantor is entitled to make under the Leases;
(d) It will cause the security interest in the Personalty to
remain a continuously perfected, first priority security interest free
and clear of any liens (other than the Beneficiary's lien hereunder the
Priority Liens and the Permitted Encumbrances), and from time to time,
at its own expense, the Grantor will promptly execute and deliver all
further instruments and documents and take all further action, that may
be necessary or desirable, or that the Beneficiary or the Designated
Collateral Subagent may reasonably request, in order to perfect and
protect any security interest granted or purported to be granted hereby
or to enable the Beneficiary and the Designated Collateral Subagent to
otherwise enforce its rights and remedies hereunder with respect to the
Personalty. Without limiting the generality of the foregoing or of
Section 4.3 hereof, the Grantor will: (i) at the request of the
Beneficiary or the Designated Collateral Subagent, mark conspicuously
any item of chattel paper relating to or evidencing the Personalty with
a legend, in form and substance satisfactory to the Beneficiary and the
Designated Collateral Subagent, indicating that the Personalty is
subject to the security interest granted hereby, (ii) execute and file
such financing or continuation statements, or amendments thereto, and
such other collateral assignments, security agreements, instruments or
notices, as may be necessary or desirable, or as the Beneficiary or the
Designated Collateral Subagent may reasonably request, in order to
perfect and preserve the security interests granted or purported to be
granted hereby, and (iii) defend the title to the Personalty and the
Beneficiary's lien thereon and security interest therein against the
claim of any person, firm, corporation, or other entity
38
claiming against or through Grantor and will maintain and preserve such
lien and security interest so long as this Deed of Trust shall remain
in effect;
(e) It authorizes the Beneficiary and the Designated
Collateral Subagent to file one or more financing or continuation
statements, and amendments thereto, relative to all or any part of the
Personalty without the signature of the Grantor where permitted by law;
and
(f) It will furnish to the Beneficiary and the Designated
Collateral Subagent from time to time statements and schedules further
identifying and describing the Personalty and such other reports in
connection with the Personalty as the Beneficiary or the Designated
Collateral Subagent may reasonably request, all in reasonable detail.
8.7 EFFECT OF RELEASE OF MORTGAGED PROPERTY: The Grantor hereby
consents to, and hereby agrees that the rights of the Beneficiary or the
Designated Collateral Subagent and the security interests hereunder, and the
obligations of the Grantor hereunder, to the fullest extent permitted by
applicable Legal Requirements, shall not be affected by any and all releases of
any of the Mortgaged Property from the liens or security interests created by
this Deed of Trust or otherwise, whether for purposes of sales or other
dispositions of assets or for some other purpose, except to the extent expressly
provided herein, by any agreement extending the time or otherwise altering the
terms of payment of all or any part of the indebtedness secured hereby, or
subordinating, modifying or waiving any obligation, or subordinating, modifying
or otherwise dealing with the lien or charge hereof, each such agreement to be
in writing to be binding and effective, by exercising or refraining from
exercising or waiving any right Beneficiary or the Designated Collateral
Subagent may have hereunder, or by accepting additional security of any kind or
additional parties to the General Senior Obligations secured hereby or
instruments creating or evidencing such.
8.8 HOLD HARMLESS: WITHOUT LIMITATION OF THE INDEMNITY SET FORTH IN
SECTION 10.15, GRANTOR HEREBY AGREES TO INDEMNIFY AND HOLD THE TRUSTEE, THE
BENEFICIARY, THE DESIGNATED COLLATERAL SUBAGENT AND EACH OF THE GENERAL SECURED
PARTIES HARMLESS (A) AGAINST AND FROM ANY AND ALL LIABILITY, LOSS, DAMAGE AND
EXPENSE, INCLUDING REASONABLE ATTORNEYS' FEES, WHICH IT MAY OR SHALL INCUR UNDER
OR IN CONNECTION WITH THE EXERCISE BY THE BENEFICIARY OR THE DESIGNATED
COLLATERAL SUBAGENT OF ITS RIGHTS HEREUNDER IN RESPECT OF ANY OF THE LEASES, OR
BY REASON OF ANY ACTION TAKEN OR EXPENSES PAID OR INCURRED BY THE BENEFICIARY OR
THE DESIGNATED COLLATERAL SUBAGENT UNDER AND IN ACCORDANCE WITH THE TERMS OF
THIS DEED OF TRUST, AND (B) AGAINST AND FROM ANY AND ALL CLAIMS AND DEMANDS
WHATSOEVER WHICH MAY BE ASSERTED AGAINST GRANTOR BY REASON OF ANY ALLEGED
OBLIGATIONS OR UNDERTAKING ON ITS PART TO PERFORM OR DISCHARGE ANY OF THE TERMS,
COVENANTS AND CONDITIONS CONTAINED IN ANY OF THE LEASES EXCEPT TO
39
THE EXTENT SUCH CLAIM IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF
COMPETENT JURISDICTION TO HAVE RESULTED FROM ANY SUCH INDEMNIFIED PARTY'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. SHOULD BENEFICIARY OR THE DESIGNATED
COLLATERAL SUBAGENT PAY OR INCUR ANY SUCH LIABILITY, LOSS, DAMAGE OR EXPENSE,
THE AMOUNT THEREOF, TOGETHER WITH INTEREST THEREON FROM THE DATE OF SUCH PAYMENT
AT THE DEFAULT RATE, SHALL BE PAYABLE BY GRANTOR TO BENEFICIARY IMMEDIATELY UPON
DEMAND THEREFOR; AND UNTIL SO PAID BY GRANTOR, ALL SUMS SO EXPENDED BY
BENEFICIARY OR THE DESIGNATED COLLATERAL SUBAGENT, AND INTEREST THEREON, SHALL
BE ADDED TO THE GENERAL SENIOR OBLIGATIONS AND SECURED BY THE LIEN AND LEGAL
OPERATION AND EFFECT OF THIS DEED OF TRUST. AT ITS OPTION, BENEFICIARY MAY
REIMBURSE ITSELF THEREFOR OUT OF ANY RENTS WHICH IT HAS COLLECTED OR MAY
COLLECT. THE FOREGOING INDEMNITY SHALL INCLUDE WITHOUT LIMITATION OF THE
FOREGOING INDEMNITY, THE INDEMNITY OF EACH OF THE PARTIES INDEMNIFIED HEREIN
WITH RESPECT TO CLAIMS, DEMANDS, LOSSES, DAMAGES (INCLUDING CONSEQUENTIAL
DAMAGES) LIABILITIES, CAUSES OF ACTION, JUDGMENTS, PENALTIES, COSTS AND EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS) AND MATTERS WHICH IN
WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OTHER THAN GROSS
(WHETHER SOLE, CONTRIBUTORY, COMPARATIVE, OR OTHERWISE) OF SUCH AND/OR ANY OTHER
INDEMNIFIED PARTY OR FOR WHICH SUCH INDEMNIFIED PARTY MAY HAVE STRICT LIABILITY.
ARTICLE IX
CONCERNING THE TRUSTEE
9.1 NO REQUIRED ACTION: Trustee shall not be required to take any
action toward the execution and enforcement of the trust hereby created or to
institute, appear in or defend any action, suit or other proceeding in
connection therewith where in his opinion such action will be likely to involve
him in expense or liability, unless requested to do so by a written instrument
signed by Beneficiary and the Designated Collateral Subagent and, if Trustee so
requests, unless Trustee is tendered security and indemnity satisfactory to it
against any and all costs, expense and liabilities arising therefrom. Trustee
shall not be responsible for the execution, acknowledgment or validity of the
Senior Credit Documents or for the proper authorization thereof, or for the
sufficiency of the lien and security interest purported to be created hereby,
and makes no representation in respect thereof or in respect of the rights,
remedies and recourses of Beneficiary or the Designated Collateral Subagent.
40
9.2 CERTAIN RIGHTS: With the approval of Beneficiary or the Designated
Collateral Subagent, Trustee shall have the right to take any and all of the
following actions: (a) to select, employ and consult with counsel (who may be,
but need not be, counsel for Beneficiary or the Designated Collateral Subagent)
upon any matters arising hereunder, including the preparation, execution and
interpretation of the Senior Credit Documents, and shall be fully protected in
relying as to legal matters on the advice of counsel; (b) to execute any of the
trusts and powers hereof and to perform any duty hereunder either directly or
through its agents or attorneys; (c) to select and employ, in and about the
execution of its duties hereunder, suitable accountants, engineers and other
experts, agents and attorneys-in-fact, either corporate or individual, not
regularly in the employ of Trustee, and Trustee shall not be answerable for any
act, default or misconduct of any such accountant, engineer or other expert,
agent or attorney-in-fact, if selected with reasonable care, or be otherwise
responsible or accountable under any circumstances whatsoever, except for
Trustee's gross negligence or bad faith; and (d) to take any and all other
lawful action as Beneficiary or the Designated Collateral Subagent may instruct
Trustee to take to protect or enforce Beneficiary's or the Designated Collateral
Subagent's rights hereunder. Trustee shall not be personally liable, except for
its gross negligence or misconduct, in case of entry by it, or anyone entering
by virtue of the rights herein granted to it, upon the Mortgaged Property for
debts contracted or liability or damages incurred in the management or operation
of the Mortgaged Property. Trustee shall have the right to rely on any
instrument, document or signature authorizing or supporting any action taken or
proposed to be taken by it hereunder believed by it in good faith to be genuine.
Trustee shall be entitled to reimbursement for reasonable expenses incurred by
it in the performance of its duties hereunder and to reasonable compensation for
such of its services hereunder as shall be rendered. Grantor will, from time to
time, pay the reasonable compensation due to Trustee hereunder and reimburse
Trustee for, and save it harmless against, any and all liability and expenses
which may be incurred by it in the performance of its duties.
9.3 RETENTION OF MONEYS: All moneys received by Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated in any manner from any other
moneys (except to the extent required by law) and Trustee shall be under no
liability for interest on any moneys received by it hereunder.
9.4 SUCCESSOR TRUSTEES: Trustee may resign by the giving of sixty (60)
days written notice of such resignation in recordable form to Beneficiary and
the Designated Collateral Subagent. If Trustee shall resign or become
disqualified from acting in the execution of this trust, or shall fail or refuse
to execute the same when requested by Beneficiary or the Designated Collateral
Subagent so to do, or if, for any reason and without cause, Beneficiary or the
Designated Collateral Subagent shall prefer to appoint a substitute trustee or
trustees to act instead of the aforenamed Trustee, or any successor or
substitute trustee, Beneficiary and the Designated Collateral Subagent shall
have full power to appoint a substitute trustee or trustees and, if preferred,
several substitute trustees in succession who shall succeed to all the estates,
properties, rights, powers and duties of the aforenamed Trustee. Such
appointment may be executed by any authorized agent or officer of Beneficiary or
the Designated Collateral Subagent, and if such Beneficiary or the Designated
Collateral Subagent be a corporation and such appointment be
41
executed in its behalf by any officer of such corporation, such appointment
shall be conclusively presumed to be executed with authority and shall be valid
and sufficient without proof of any action by the Board of Directors or any
superior officer of the corporation. Such appointment shall be duly recorded in
the appropriate real estate records at any time before or, if permitted by
applicable law, upon sale of Mortgaged Property by the successor appointed
thereby. Grantor hereby ratifies and confirms any and all acts which the
aforementioned Trustee, or his successor or successors in this trust, lawfully
does by virtue hereof. Grantor shall reimburse Beneficiary, the Designated
Collateral Subagent, and/or Trustee for any Expenses incurred pursuant to the
provisions of this Section 9.4.
9.5 PERFECTION OF APPOINTMENT: Should any deed, conveyance or
instrument of any nature be required from Grantor by any successor Trustee to
more fully and certainly vest in and confirm to such new Trustee such estates,
rights, powers and duties, then, upon request by such Trustee, any and all such
deeds, conveyances and instruments shall be made, executed, acknowledged and
delivered and shall be caused to be recorded and/or filed by Grantor and Grantor
shall pay for any Expenses incurred by Trustee pursuant to this Section 9.5.
9.6 SUCCESSION INSTRUMENTS: Any new Trustee appointed pursuant to any
of the provisions hereof shall, without any further act, deed or conveyance,
become vested with all the estates, properties, rights, powers and trusts of its
predecessor in the rights hereunder with like effect as if originally named as
Trustee herein; but nevertheless, upon the written request of Beneficiary or of
the successor Trustee, the Trustee ceasing to act shall execute and deliver an
instrument in recordable form transferring to such successor Trustee, upon the
trusts herein expressed, all the estates, properties, rights, powers and trusts
of the Trustee so ceasing to act, and shall duly assign, transfer and deliver
any of the property and moneys held by such Trustee to the successor Trustee so
appointed in its place.
9.7 NO REPRESENTATION BY TRUSTEE: By accepting or approving anything
required to be observed, performed or fulfilled or to be given to Trustee or
Beneficiary pursuant to the Senior Credit Documents, including but not limited
to, any officer's certificate, balance sheet, statement of profit and loss or
other financial statement, survey, appraisal or insurance policy, neither
Trustee nor Beneficiary shall be deemed to have warranted, consented to, or
affirmed the sufficiency, legality, effectiveness or legal effect of the same,
or of any term, provision or condition thereof, and such acceptance or approval
thereof shall not be or constitute any warranty, consent or affirmation with
respect thereto by Trustee or Beneficiary.
9.8 [INTENTIONALLY OMITTED]
ARTICLE X
MISCELLANEOUS
42
10.1 PERFORMANCE AT GRANTOR'S EXPENSE: The cost and expense of
performing or complying with any and all of the General Senior Obligations shall
be borne solely by Grantor, and no portion of such cost and expense shall be, in
any way or to any extent, credited against any installment on or portion of the
General Senior Obligations which may be payable by Grantor pursuant to the
Senior Credit Documents.
10.2 SURVIVAL OF GENERAL SENIOR OBLIGATIONS: Each and all of the
General Senior Obligations shall survive the execution and delivery of the
Senior Credit Documents and the consummation of the loans and other extensions
of credit called for therein and shall continue in full force and effect with
respect to Grantor until the Security Termination Date shall have occurred.
10.3 FURTHER ASSURANCES: Grantor, upon the request of Trustee,
Beneficiary or the Designated Collateral Subagent, will execute, acknowledge,
and record and/or file such further instruments and do such further acts as may
be reasonably necessary, desirable or proper to carry out more effectively the
purpose of the Senior Credit Documents and to subject to the liens and security
interests thereof any property intended by the terms thereof to be covered
thereby, including specifically but without limitation, any renewals, additions,
substitutions, replacements, betterments or appurtenances to the then Mortgaged
Property.
10.4 RECORDING AND FILING: Grantor will cause this Deed of Trust and
all amendments and supplements thereto and supplements therefor to be recorded,
filed, re-recorded and refiled in such manner and in such places as required by
applicable law or as Trustee, Beneficiary or the Designated Collateral Subagent
shall reasonably request, and will pay all such recording, filing, re-recording
and refiling taxes, fees and other charges.
10.5 NOTICES: Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor) (provided that if such day is not a Business Day, such date of
delivery or receipt shall be deemed to be the next following Business Day), (ii)
on the day of receipt (provided that if such day is not a Business Day, such
date of delivery or receipt shall be deemed to be the next following Business
Day) at such address, telefacsimile number or telex number as may from time to
time be specified by such party in written notice to the other parties hereto or
otherwise received), in the case of notice by telegram or telefacsimile,
respectively (where the receipt of such message is verified by return), or (iii)
on the fifth Business Day after the day on which mailed, if sent prepaid by
certified or registered mail, return receipt requested, in each case delivered,
transmitted or mailed, as the case may be, to the address or telefacsimile
number, as appropriate, set forth below or such other address or number as such
party shall specify by notice hereunder:
(a) if to the Grantor:
Cone Mills Corporation
43
3101 North Elm Street
Greensboro, North Carolina 27415-6540
Attention: David E. Bray
Telephone: (336) 379-6098
Telefacsimile: (336) 379-6043
with a copy to:
Schell Bray Aycock Abel & Livingston P.L.L.C.
Suite 1500 Renaissance Plaza
230 North Elm Street
Greensboro, North Carolina 27401
Attention: William P. Aycock, II
Telephone: (336) 370-8800
Telefacsimile: (336) 370-8830
(b) if to the Beneficiary:
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telephone: (302) 651-1000
Telefacsimile: (302) 651-8882
(c) if to the Designated Collateral Subagent:
Bank of America, N.A.
100 North Tryon Street, 17th Floor
Charlotte, North Carolina 28202
Attention: Pfifer Helms
Telephone: (704) 386-5358
Telefacsimile: (704) 386-1270
with a copy to:
Bank of America, N.A.
101 North Tryon Street
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 386-9368
44
Telefacsimile: (704) 386-9923
(d) If to the Trustee:
TIM, Inc.
100 North Tryon Street, 17th Floor
Charlotte, North Carolina 28202
Attention: Pfifer Helms
Telephone: (704) 386-5358
Telefacsimile: (704) 386-1270
10.6 NO WAIVER; REMEDIES: The Beneficiary's failure, at any time or
times hereafter, to require strict performance by the Grantor of any provision
of this Deed of Trust shall not waive, affect or diminish any right of the
Beneficiary, the Designated Collateral Subagent or Trustee thereafter to demand
strict compliance and performance therewith, and the Beneficiary's, Designated
Collateral Subagent's or Trustee's single or partial exercise of any right,
remedy, power or privilege hereunder shall not preclude any other or further
exercise thereof or the exercise of any other right, remedy, power, or
privilege. The rights, remedies, powers or privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers or privileges
provided by applicable Legal Requirements. Any suspension or waiver by the
Beneficiary, the Designated Collateral Subagent, Trustee or the applicable
General Secured Parties (or an agent on their behalf) of a default by the
Grantor under this Deed of Trust or under any of the other Senior Credit
Documents shall not suspend, waive or affect any other default thereunder,
whether the same is prior or subsequent thereto and whether of the same or of a
different kind of character. None of the undertakings, agreements, warranties,
covenants and representations of the Grantor contained in this Deed of Trust and
no default by the Grantor under this Deed of Trust shall be deemed to have been
suspended or waived unless such suspension or waiver is in writing signed by an
officer of the Beneficiary or the Designated Collateral Subagent, and directed
to the Grantor specifying such suspension or waiver.
10.7 BENEFICIARY'S AND GENERAL SECURED PARTIES' RIGHT TO PERFORM THE
OBLIGATIONS:
(A) If Grantor shall fail, refuse or neglect to make any
payment or perform any act required of it by this Deed of Trust
(including the Grantor's obligation under Section 4.3 hereof to defend
the first lien status of this Deed of Trust), then at any time
thereafter, upon reasonable notice to Grantor and without waiving or
releasing any other right, remedy or
45
recourse Beneficiary or the applicable General Secured Parties (or an
agent on their behalf) may have because of same, Beneficiary or the
Designated Collateral Subagent 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 or in the Land and
Buildings for such purpose and to take all such action thereon and with
respect to the Mortgaged Property as it may deem reasonably necessary
or appropriate. In its exercise of its rights under this Section 10.7,
if Beneficiary or the Designated Collateral Subagent shall elect to pay
any Imposition or other sums due with reference to the Mortgaged
Property, Beneficiary or the Designated Collateral Subagent may do so
in reliance on any bill, statement or assessment procured from the
appropriate governmental authority or other issuer thereof without
inquiring into the accuracy or validity thereof subject to any other
applicable terms and provisions set forth herein. Similarly, in making
any payments to protect the security intended to be created by the
Senior Credit Documents, Beneficiary or the Designated Collateral
Subagent shall not be bound to inquire into the validity of any
apparent or threatened adverse title, lien, encumbrance, claim or
charge before making an advance for the purpose of preventing or
removing the same subject to any other applicable terms and provisions
set forth herein. GRANTOR SHALL INDEMNIFY BENEFICIARY AND THE
DESIGNATED COLLATERAL SUBAGENT FOR ALL LOSSES, EXPENSES, DAMAGE, CLAIMS
AND CAUSES OF ACTION, INCLUDING REASONABLE ATTORNEY'S FEES, INCURRED OR
ACCRUING BY REASON OF ANY ACTS PERFORMED BY BENEFICIARY OR THE
DESIGNATED COLLATERAL SUBAGENT PURSUANT TO THE PROVISIONS OF THIS
SECTION 10.7. ALL SUMS PAID BY BENEFICIARY OR THE DESIGNATED COLLATERAL
SUBAGENT PURSUANT TO THIS SECTION 10.7 AND ALL OTHER SUMS EXPENDED BY
BENEFICIARY OR THE DESIGNATED COLLATERAL SUBAGENT TO WHICH IT SHALL BE
ENTITLED TO BE INDEMNIFIED, TOGETHER WITH INTEREST THEREON AT THE
DEFAULT RATE FROM THE DATE OF SUCH PAYMENT OR EXPENDITURE, SHALL
CONSTITUTE ADDITIONS TO THE OBLIGATIONS, AND SHALL BE SECURED BY THE
LOAN DOCUMENTS AND GRANTOR COVENANTS AND AGREES TO PAY THEM TO THE
ORDER OF BENEFICIARY UPON DEMAND. THE FOREGOING INDEMNITY SHALL INCLUDE
WITHOUT LIMITATION OF THE FOREGOING INDEMNITY, THE INDEMNITY OF EACH OF
THE PARTIES INDEMNIFIED HEREIN WITH RESPECT TO CLAIMS, DEMANDS, LOSSES,
DAMAGES (INCLUDING CONSEQUENTIAL DAMAGES) LIABILITIES, CAUSES OF
ACTION, JUDGMENTS, PENALTIES, COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES AND COURT COSTS) AND MATTERS WHICH IN WHOLE OR IN PART
ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OTHER THAN GROSS (WHETHER
SOLE, CONTRIBUTORY, COMPARATIVE, OR OTHERWISE) OF SUCH AND/OR ANY OTHER
INDEMNIFIED PARTY OR FOR WHICH SUCH INDEMNIFIED PARTY MAY HAVE STRICT
LIABILITY.
46
(b) Any reference in this Deed of Trust to amounts advanced by
or owed to Beneficiary or the Designated Collateral Subagent shall be
deemed to refer equally to amounts advanced by or owed to the Trustee
or the General Secured Parties, and wherever Beneficiary or the
Designated Collateral Subagent is required or permitted to advance
funds, such funds may be advanced by the Trustee or the General Secured
Parties with the same effect as if advanced by Beneficiary or the
Designated Collateral Subagent.
10.8 COVENANTS RUNNING WITH THE LAND: All General Senior Obligations
are intended by the parties to be, and shall be construed as, covenants running
with the Mortgaged Property until such Mortgaged Property has been released from
the lien of this Deed of Trust.
10.9 SUCCESSORS AND ASSIGNS: All of the terms of this Deed of Trust
shall apply to, be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
10.10 SEVERABILITY: This Deed of Trust is intended to be performed in
accordance with, and only to the extent permitted by, applicable Legal
Requirements. If any provision of this Deed of Trust or the application thereof
to any person or circumstance shall, for any reasons and to any extent, be
invalid or unenforceable, then neither the remainder of this Deed of Trust nor
the application of such provision to other persons or circumstances nor the
other instruments referred to above shall be affected thereby, but rather shall
be enforced to the greatest extent permitted by applicable law.
10.11 ENTIRE AGREEMENT AND MODIFICATION: The Senior Credit Documents
including the Security Documents contain the entire agreement between the
parties relating to the subject matter hereof and thereof and all prior
agreements relative thereto which are not contained herein or therein are
terminated. This Deed of Trust may not be amended, revised, waived, discharged,
released or terminated orally but only by a written instrument or instruments
executed by the party against which enforcement of the amendment, revision,
waiver, discharge, release or termination is asserted. Any alleged amendment,
revision, waiver, discharge, release or termination which is not so documented
shall not be effective as to any party. In the event of a conflict between the
covenants contained herein and the covenants contained in the other Senior
Credit Documents, the more specific covenants contained herein shall govern with
respect to the Mortgaged Property.
10.12 APPLICABLE LAW: THE PARTIES TO THIS DEED OF TRUST AGREE
THAT THEIR RIGHTS AND OBLIGATIONS UNDER THIS DEED OF TRUST SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF NORTH CAROLINA,
WITHOUT GIVING EFFECT TO THE CONFLICTS-OF LAW RULES AND PRINCIPLES THEREOF. THE
PARTIES FURTHER AGREE AND STIPULATE THAT THIS DEED OF TRUST WAS NEGOTIATED
PRIMARILY IN NORTH CAROLINA AND THAT NORTH CAROLINA HAS A SUBSTANTIAL
RELATIONSHIP TO
47
THE PARTIES AND TO THE UNDERLYING TRANSACTIONS SECURED BY THIS DEED OF TRUST.
NOTWITHSTANDING THE FOREGOING, THE PARTIES AGREE THAT:
(A) THE PROCEDURES GOVERNING THE ENFORCEMENT BY BENEFICIARY
AND THE DESIGNATED COLLATERAL SUBAGENT OF THE PROVISIONAL REMEDIES
AGAINST GRANTOR, INCLUDING BY WAY OF ILLUSTRATION BUT NOT LIMITATION,
ACTIONS FOR REPLEVIN, FOR CLAIM AND DELIVERY OF PROPERTY, FOR
INJUNCTIVE RELIEF OR FOR THE APPOINTMENT OF A RECEIVER AND THE
REQUIREMENTS NECESSARY TO CREATE OR GRANT, PERFECT OR FORECLOSE ON, OR
DETERMINE THE PRIORITY OF, THE LIEN AND SECURITY INTEREST OF THIS DEED
OF TRUST, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NORTH CAROLINA;
(B) OTHER THAN AS SET FORTH IN SUBSECTION (A) ABOVE, TRUSTEE,
BENEFICIARY AND THE DESIGNATED COLLATERAL SUBAGENT SHALL COMPLY WITH
THE APPLICABLE LAW OF THE STATE OF NORTH CAROLINA, TO THE EXTENT
REQUIRED IN CONNECTION WITH THE POWER OF SALE OR THE FORECLOSURE OF THE
SECURITY INTERESTS AND LIENS CREATED HEREBY. THE PARTIES FURTHER AGREE
THAT EITHER BENEFICIARY OR THE DESIGNATED COLLATERAL SUBAGENT MAY
ENFORCE ITS RIGHTS UNDER THIS DEED OF TRUST, INCLUDING BUT NOT LIMITED
TO, ITS RIGHT TO SUE GRANTOR, TO COLLECT ANY OUTSTANDING INDEBTEDNESS
OR TO OBTAIN A JUDGMENT FOR ANY DEFICIENCY FOLLOWING FORECLOSURE, IN
ACCORDANCE WITH THE LAWS OF NORTH CAROLINA.
(C) GRANTOR HEREBY ACKNOWLEDGES, WARRANTS AND REPRESENTS THAT
IT IS SOPHISTICATED, KNOWLEDGEABLE AND EXPERIENCED IN COMMERCIAL
TRANSACTIONS SIMILAR TO THE TRANSACTION EMBODIED IN THIS DEED OF TRUST
AND THE SENIOR CREDIT DOCUMENTS; IT HAS BEEN FULLY, COMPLETELY AND
ADEQUATELY REPRESENTED AND ADVISED BY COMPETENT COUNSEL AND OTHER
CONSULTANTS RETAINED FOR SUCH PURPOSES IN CONNECTION WITH ALL ASPECTS
(INCLUDING BUSINESS AND LEGAL) OF THE TRANSACTIONS UNDER THIS DEED OF
TRUST AND THE SENIOR CREDIT DOCUMENTS; ALL PARTIES TO SUCH TRANSACTION
HAVE EQUAL BARGAINING STRENGTH; AND, BASED ON THE FOREGOING, THE
PARTIES HAVE SELECTED THE LAW OF THE STATE OF NORTH CAROLINA TO GOVERN
THIS DEED OF TRUST AS HEREIN SPECIFIED; AND
(D) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TERMS AND
CONDITIONS IMPLIED IN MORTGAGES BY VIRTUE OF ANY PRESENT OR FUTURE
STATUTE IN FORCE IN NORTH CAROLINA SHALL FOR THE
48
PURPOSES OF THIS DEED OF TRUST BE NEGATED OR VARIED ONLY SO FAR AS THEY
ARE INCONSISTENT WITH THE TERMS AND CONDITIONS HEREOF AND ARE OTHERWISE
HEREBY VARIED SO AS TO BECOME CONSISTENT WITH THIS DEED OF TRUST.
10.13 NO PARTNERSHIP; CONTROL IN GRANTOR: Except to the extent
occurring as a matter of law (a) nothing contained in this Deed of Trust is
intended to, or shall be construed as, creating to any extent and in any manner
whatsoever, any partnership, joint venture, or association between Grantor,
Trustee, Beneficiary, the Designated Collateral Subagent or any of the General
Secured Parties, or in any way make Beneficiary, the Designated Collateral
Subagent, the Trustee or any of the General Secured Parties co-principals with
Grantor with reference to all or any portion of the Mortgaged Property, and any
inferences to the contrary are hereby expressly negated; (b) notwithstanding
anything contained herein which may be to the contrary, this Deed of Trust, the
Senior Credit Documents, any agreement, deed of trust or other document referred
to herein by reference, whether specifically or generally, and the transactions
contemplated hereby do not and will not constitute or create indirect, actual or
practical ownership of the Mortgaged Property of Grantor by Beneficiary, the
Designated Collateral Subagent or any of the General Secured Parties, or
control, affirmative or negative, direct or indirect, by Beneficiary, the
Designated Collateral Subagent or any of the General Secured Parties over the
programming, management, or any other aspect of the day-to-day operation of the
Mortgaged Property or Grantor, which control remains in Grantor, its
shareholders and board of directors; and (c) Beneficiary's and the Designated
Collateral Subagent's activities in connection with this Deed of Trust, the Loan
Documents and the Senior Credit Documents shall not be "outside the scope of the
activities of a lender of money" within the meaning of any applicable statutes,
as amended or recodified from time to time, and Beneficiary and the Designated
Collateral Subagent do not intend to ever assume any responsibility to any
person for the quality, suitability, safety or condition of the Mortgaged
Property. Neither Beneficiary nor the Designated Collateral Subagent nor any of
the General Secured Parties shall be directly or indirectly liable or
responsible for any loss, claim, cause of action, liability, indebtedness,
damage or injury of any kind or character to any person or property arising from
any construction, or occupancy or use of, any of the Mortgaged Property, whether
caused by or arising from: (i) any defect in any building, structure, grading,
fill, landscaping or other improvements-thereon or in any on-site or off-site
improvement or other facility therein or thereon; (ii) any act or omission of
Grantor or any of its agents, employees, independent contractors, licensees or
invitees; (iii) any accident in or on any of the Mortgaged Property or any fire,
flood or other casualty or hazard thereon; (iv) the failure of Grantor, any of
its licensees, employees, invitees, agents, independent contractors or other
representatives to maintain the Mortgaged Property in a safe condition; and (v)
any nuisance made or suffered on any part of the Mortgaged Property.
10.14 HEADINGS: The Article, Section and Subsection titles hereof are
inserted for convenience of reference only and shall in no way alter, modify or
define, or be used in construing, the text of such Articles, Sections or
Subsections.
49
10.15 HOLD HARMLESS: NEITHER TRUSTEE, BENEFICIARY, THE DESIGNATED
COLLATERAL SUBAGENT NOR ANY OF THE GENERAL SECURED PARTIES SHALL BE OBLIGATED TO
PERFORM OR DISCHARGE, NOR DO ANY OF THEM HEREBY UNDERTAKE TO PERFORM OR
DISCHARGE, ANY OBLIGATION, DUTY OR LIABILITY WITH RESPECT TO THE MORTGAGED
PROPERTY UNDER OR BY REASON OF THIS DEED OF TRUST OR ANY OF THE SENIOR CREDIT
DOCUMENTS, AND GRANTOR SHALL AND DOES HEREBY AGREE TO INDEMNIFY TRUSTEE,
BENEFICIARY, THE DESIGNATED COLLATERAL SUBAGENT AND EACH GENERAL SECURED PARTY
FOR AND TO HOLD TRUSTEE, BENEFICIARY, THE DESIGNATED COLLATERAL SUBAGENT AND
EACH GENERAL SECURED PARTY HARMLESS FROM ANY AND ALL LIABILITY, LOSS OR DAMAGE
WHICH THEY MAY OR MIGHT INCUR WITH RESPECT TO THE MORTGAGED PROPERTY OR UNDER OR
BY REASON OF THIS DEED OF TRUST OR ANY OF THE SENIOR CREDIT DOCUMENTS AND FROM
ANY AND ALL CLAIMS AND DEMANDS WHATSOEVER WHICH MAY BE ASSERTED AGAINST THEM BY
REASON OF ANY ALLEGED OBLIGATIONS OR UNDERTAKINGS ON THEIR PART TO PERFORM OR
DISCHARGE ANY OF THE TERMS, COVENANTS, OR AGREEMENTS RELATING TO THE MORTGAGED
PROPERTY EXCEPT TO THE EXTENT SUCH CLAIM IS FOUND IN A FINAL, NON-APPEALABLE
JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM ANY SUCH
INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. SHOULD TRUSTEE,
BENEFICIARY, THE DESIGNATED COLLATERAL SUBAGENT OR ANY GENERAL SECURED PARTY
INCUR ANY SUCH LIABILITY, LOSS OR DAMAGE, THE AMOUNT THEREOF, INCLUDING ALL
ATTORNEYS' FEES AND COSTS AND EXPENSES ASSOCIATED WITH ACTIONS TAKEN BY TRUSTEE,
BENEFICIARY, THE DESIGNATED COLLATERAL SUBAGENT OR ANY SUCH GENERAL SECURED
PARTY IN DEFENSE THEREOF, OR OTHERWISE IN PROTECTING THEIR INTERESTS HEREUNDER,
SHALL BE SECURED HEREBY, AND GRANTOR COVENANTS AND AGREES TO REIMBURSE TRUSTEE,
BENEFICIARY, THE DESIGNATED COLLATERAL SUBAGENT OR ANY SUCH GENERAL SECURED
PARTY THEREFOR IMMEDIATELY UPON DEMAND. THE FOREGOING INDEMNITY SHALL INCLUDE
WITHOUT LIMITATION OF THE FOREGOING INDEMNITY, THE INDEMNITY OF EACH OF THE
PARTIES INDEMNIFIED HEREIN WITH RESPECT TO CLAIMS, DEMANDS, LOSSES, DAMAGES
(INCLUDING CONSEQUENTIAL DAMAGES) LIABILITIES, CAUSES OF ACTION, JUDGMENTS,
PENALTIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COURT
COSTS) AND MATTERS WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE
NEGLIGENCE OTHER THAN GROSS (WHETHER SOLE, CONTRIBUTORY, COMPARATIVE, OR
OTHERWISE) OF SUCH AND/OR ANY OTHER INDEMNIFIED PARTY OR FOR WHICH SUCH
INDEMNIFIED PARTY MAY HAVE STRICT LIABILITY.
50
10.16 PRONOUNS AND PLURALS: All pronouns used herein shall be deemed to
refer to the masculine, feminine, neuter, singular or plural as the context may
require, and the singular form of nouns, pronouns and verbs shall include the
plural, and vice versa, whichever the context may require.
10.17 WAIVER OF TRIAL BY JURY: TO THE EXTENT PERMITTED UNDER THE LAWS
OF THE STATE IN WHICH THE APPLICABLE PORTION OF THE MORTGAGED PROPERTY IS
SITUATED, GRANTOR AND THE BENEFICIARY EACH HEREBY WAIVES AND SHALL WAIVE TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS DEED OF TRUST.
10.18 ASSIGNMENT: Beneficiary and the Designated Collateral Subagent
each may assign or transfer all or any portion of its rights under this Deed of
Trust.
10.19 NO MERGER: So long as this Deed of Trust is an encumbrance upon
the Mortgaged Property, there shall be no merger of the interest of any lessor
or any lessee under any Lease or sublease.
10.20 ENFORCEABILITY OF LIEN: In the event that any part of the General
Senior Obligations cannot be lawfully secured by this Deed of Trust, or the lien
or security interest hereof cannot be lawfully enforced to pay any part of the
General Senior Obligations, then and in either such event, at the option of
Beneficiary, all payments on the General Senior Obligations shall be deemed to
have been first applied against the unsecured part of the General Senior
Obligations.
10.21 KNOWLEDGE: Whenever referenced in this Deed of Trust, the
"knowledge" or "best knowledge" of Grantor shall include the knowledge of its
parent corporations, if any, and its Subsidiaries, if any.
10.22 BEST EFFORTS: Whenever referenced in this Deed of Trust, the term
"best efforts" shall not be interpreted as requiring the expenditure of
unreasonable sums of money, in view of the objectives sought.
10.23 USURY SAVINGS CLAUSE: Nothing contained herein or in the Senior
Credit Documents shall be deemed to require the payment of interest or other
charges by Grantor in excess of the amount Beneficiary and the applicable
General Secured Parties may lawfully charge under the applicable usury laws (the
"Highest Lawful Rate"). In the event Beneficiary shall collect monies which are
deemed to constitute interest which would increase the effective interest rate
to a rate in excess of that permitted to be charged by applicable law, all such
sums deemed to constitute interest in excess of the legal rate shall, upon such
determination, at the option of Beneficiary, be returned to the Grantor or
credited against the principal balance of any General Senior Obligation secured
hereby then outstanding.
51
10.24 PAYMENT OF PRIOR ENCUMBRANCES: If any or all of the proceeds of
the General Senior Obligations have been used to extinguish, extend or renew any
indebtedness heretofore existing against the Mortgaged Property or to satisfy
any indebtedness or obligation secured by a lien or encumbrance of any kind
(including liens securing the payment of any Impositions), such proceeds have
been advanced by Beneficiary at Grantor's request, and, to the extent of such
funds so used, the General Senior Obligations in this Deed of Trust shall be
subrogated to and extend to all of the rights, claims, liens, titles and
interests heretofore existing against the Mortgaged Property to secure the
indebtedness or obligation so extinguished, paid, extended or renewed, and the
former rights, claims, liens, title and interests, if any, shall not be waived
but rather shall be continued in full force and effect and in favor of the
Beneficiary and shall be merged with the lien and security for the repayment of
and satisfaction of the General Senior Obligations.
[Signatures on following page]
52
Grantor hereby acknowledges that it has received a copy of this Deed
of Trust free of charge.
WITNESS THE EXECUTION OF THIS DEED OF TRUST, SECURITY AGREEMENT,
FIXTURE FILING, ASSIGNMENT OF LEASES AND RENTS AND FINANCING STATEMENT under
seal as of the date first above written.
CONE MILLS CORPORATION
a North Carolina corporation
By: (SEAL)
-------------------------
Name:
Title:
Attest: (SEAL)
-------------------------
Name:
Title:
(CORPORATE SEAL)
This Instrument prepared by and
when recorded mail to:
Charles N. Anderson, Jr.
Smith Helms Mulliss & Moore, L.L.P.
201 North Tryon Street
Charlotte, North Carolina 28202
53
STATE OF ___________________
COUNTY OF _________________
I, the undersigned, a Notary Public of said County and State, do hereby
certify that _______________________________ personally appeared before me this
day and acknowledged that _____ is the ________ Secretary of Cone Mills
Corporation, a North Carolina corporation, and that by authority duly given, and
as the act of the corporation, the foregoing instrument was signed in its name
by its __________ President, sealed with its corporate seal and attested by
__________ as its Secretary.
WITNESS my hand and official seal or stamp, this the _____ day of
January, 2000.
-----------------------
Notary Public
My Commission Expires:
- ----------------------------
[SEAL or STAMP]
54
EXHIBIT A
Land
55