Exhibit 4.25
TAX PARCEL/GPIN #33-6
THIS IS A CREDIT LINE DEED OF TRUST
The maximum aggregate amount of principal to be secured at any one time is
$125,000,000*.
Name of Beneficiary: Wells Fargo Bank Minnesota, National Association
Mailing Address of Beneficiary: 213 Court Street, Suite 902
Middleton, CT 06457
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
BY
COLONIAL DOWNS HOLDINGS, INC.,
as Grantor,
TO
DAVID F. BELKOWITZ and JAMES L. WEINBERG,
as Trustees
for the benefit of
Wells Fargo Bank Minnesota, National Association,
as Beneficiary
Securing Principal Indebtedness of $125,000,000*
Dated as of June 14, 2002
Relating to Premises in:
New Kent County, Virginia
After recording, please return to:
David F. Belkowitz, Esquire
Hirschler Fleischer
710 East Byrd Street
Richmond, Virginia 23219
*1. The total principal indebtedness of the Grantor and its affiliates is
$125,000,000 (the "Indebtedness").
2. The total value of all properties in Virginia given as security for the
Indebtedness is $33,622,155 (the "Security Properties") or 26.9% of the
Indebtedness.
3. The Virginia state recordation tax to be paid on this and other deeds
of trust concurrently being recorded in Virginia is based on
$33,622,155 (26.9% of the Indebtedness) or $__________________.
4. The total value of the property in _____________ is $__________________
or _____% of the indebtedness.
5. The local recordation tax to be paid on this deed of trust is based on
$________ (____% of the indebtedness) or $_____________________.
TABLE OF CONTENTS
Page
PREAMBLE ..................................................................... 1
RECITALS ..................................................................... 1
AGREEMENT .................................................................... 2
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions .................................................... 2
SECTION 1.2 Interpretation ................................................. 6
SECTION 1.3 Resolution of Drafting Ambiguities ............................. 7
ARTICLE II
GRANTS AND SECURED OBLIGATIONS
SECTION 2.1 Grant of Mortgaged Property .................................... 7
SECTION 2.2 Assignment of Leases and Rents ................................. 8
SECTION 2.3 Secured Obligations ............................................ 8
SECTION 2.4 Future Advances ................................................ 8
SECTION 2.5 No Release ..................................................... 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GRANTOR
SECTION 3.1 Authority and Validity ......................................... 9
SECTION 3.2 Warranty of Title .............................................. 9
SECTION 3.3 Condition of Mortgaged Property ................................10
SECTION 3.4 Leases .........................................................11
SECTION 3.5 Insurance ......................................................11
SECTION 3.6 Charges ........................................................12
SECTION 3.7 Environmental ..................................................12
SECTION 3.8 No Conflicts, Consents, etc. ...................................12
SECTION 3.9 Benefit to the Grantor .........................................13
ARTICLE IV
CERTAIN COVENANTS OF GRANTOR
SECTION 4.1 Preservation of Corporate Existence ............................13
SECTION 4.2 Title ..........................................................13
SECTION 4.3 Maintenance and Use of Mortgaged Property; Alterations .........14
SECTION 4.4 Notices Regarding Certain Defaults .............................14
SECTION 4.5 Access to Mortgaged Property, Books and Records;
Other Information .............................................15
SECTION 4.6 Limitation on Liens; Transfer Restrictions .....................15
SECTION 4.7 Environmental ..................................................15
SECTION 4.8 Estoppel Certificates ..........................................16
ARTICLE V
LEASES
SECTION 5.1 Grantor's Affirmative Covenants with Respect to Leases .........16
SECTION 5.2 Grantor's Negative Covenants with Respect to Leases ............17
SECTION 5.3 Additional Requirements with Respect to New Leases .............17
ARTICLE VI
CONCERNING ASSIGNMENT OF LEASES AND RENTS
SECTION 6.1 Present Assignment; License to the Grantor .....................18
SECTION 6.2 Collection of Rents by the Beneficiary .........................18
SECTION 6.3 No Release .....................................................18
SECTION 6.4 Irrevocable Interest ...........................................18
SECTION 6.5 Amendment to Leases ............................................19
ARTICLE VII
TAXES AND CERTAIN STATUTORY LIENS
SECTION 7.1 Payment of Charges .............................................19
SECTION 7.2 Escrow of Taxes ................................................19
SECTION 7.3 Certain Statutory Liens ........................................19
SECTION 7.4 Stamp and Other Taxes ..........................................19
SECTION 7.5 Certain Tax Law Changes ........................................19
SECTION 7.6 Proceeds of Tax Claim ..........................................20
ARTICLE VIII
INSURANCE
SECTION 8.1 Required Insurance Policies and Coverages ......................20
SECTION 8.2 Delivery After Foreclosure .....................................20
ARTICLE IX
CONTESTING OF PAYMENTS
SECTION 9.1 Contesting of Taxes and Certain Statutory Liens ................20
SECTION 9.2 Contesting of Insurance ........................................20
ARTICLE X
DESTRUCTION, CONDEMNATION AND RESTORATION
SECTION 10.1 Destruction ....................................................21
SECTION 10.2 Condemnation ...................................................21
ARTICLE XI
EVENTS OF DEFAULT AND REMEDIES
SECTION 11.1 Events of Default ............................................21
SECTION 11.2 Remedies in Case of an Event of Default ......................21
SECTION 11.3 Sale of Mortgaged Property if Event of Default Occurs;
Proceeds of Sale ............................................22
SECTION 11.4 Additional Remedies in Case of an Event of Default ...........23
SECTION 11.5 Legal Proceedings After an Event of Default ..................23
SECTION 11.6 Remedies Not Exclusive .......................................24
ARTICLE XII
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 12.1 Security Agreement ...........................................25
SECTION 12.2 Fixture Filing ...............................................25
ARTICLE XIII
FURTHER ASSURANCES
SECTION 13.1 Recording Documentation To Assure Security ...................25
SECTION 13.2 Further Acts .................................................26
SECTION 13.3 Additional Security ..........................................26
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Covenants To Run with the Land ...............................26
SECTION 14.2 No Merger ....................................................26
SECTION 14.3 Concerning Beneficiary and Trustee ...........................27
SECTION 14.4 Beneficiary May Perform; Beneficiary Appointed
Attorney-in-Fact ............................................27
SECTION 14.5 Expenses .....................................................28
SECTION 14.6 Indemnity ....................................................28
SECTION 14.7 Continuing Security Interest; Assignment .....................29
SECTION 14.8 Termination; Release .........................................29
SECTION 14.9 Modification in Writing ......................................29
SECTION 14.10 Notices ......................................................29
SECTION 14.11 Governing Law; Service of Process; Waiver of Jury Trial ......29
SECTION 14.12 Severability of Provisions ...................................30
SECTION 14.13 Limitation on Interest Payable ...............................30
SECTION 14.14 Business Days ................................................30
SECTION 14.15 Relationship .................................................30
SECTION 14.16 Waiver of Stay ...............................................30
SECTION 14.17 No Credit for Payment of Taxes or Impositions ................31
SECTION 14.18 No Claims Against the Beneficiary ............................31
SECTION 14.19 Obligations Absolute .........................................31
SECTION 14.20 Last Dollars Secured .........................................31
SECTION 14.21 Trustee Provisions ...........................................32
SIGNATURE
ACKNOWLEDGMENT
SCHEDULE A Legal Description
SCHEDULE B Prior Liens
SCHEDULE C Leases
Exhibit 1 Form of Subordination, Non-Disturbance and Attornment Agreement
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE
FILING (as amended, amended and restated, supplemented, or otherwise modified
from time to time, the "Deed of Trust"), dated as of June __, 2002, made by
COLONIAL DOWNS HOLDINGS, INC., a Virginia corporation, having an office at 10515
Colonial Downs Parkway, New Kent, Virginia 23124, as grantor, assignor and
debtor (in such capacities and together with any successors in such capacities,
the "Grantor"), to DAVID F. BELKOWITZ and JAMES L. WEINBERG, either of whom may
act, having an address at Hirschler Fleischer, 701 E. Byrd Street, 15th Floor,
Richmond, Virginia 23219, as trustee (together with any successors in such
capacity, the "Trustee") for the benefit of WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, a national banking association having an office at 213 Court
Street, Suite 902, Middletown, CT 06457, in its capacity as trustee pursuant to
the Indenture (as hereinafter defined), as beneficiary, assignee and secured
party (in such capacities and together with any successors in such capacities,
the "Beneficiary").
RECITALS:
A. Gameco, Inc. (the "Issuer"), certain of its Subsidiaries
(as hereinafter defined), and the Beneficiary have entered into that certain
indenture, dated as of February 8, 2002 (as amended, amended and restated,
supplemented, or otherwise modified from time to time, the "Indenture"),
pursuant to which the Issuer has issued its 11 7/8% senior secured notes due
2009 (the "Senior Secured Notes") in the aggregate principal amount of
$125,000,000. It is contemplated that the Issuer may, after the date hereof,
issue Additional Notes (as defined in the Indenture) and Exchange Notes (as
defined in the Indenture); the Exchange Notes, together with the Additional
Notes and the Senior Secured Notes, the "Notes"), in each case, pursuant to the
provisions of the Indenture.
B. The Issuer owns, directly or through its Subsidiaries, all
of the issued and outstanding equity interests of the Grantor.
C. The Grantor has, pursuant to a Supplemental Indenture dated
as of the date hereof, among other things, unconditionally guaranteed (the
"Guarantee") the obligations of the Issuer under the Indenture and the Notes.
D. The Grantor will receive substantial benefits from the
execution and delivery of, and the performance of the obligations under, the
Indenture and the Notes, and is therefore willing to enter into this Deed of
Trust.
E. The Grantor is the legal owner of the Mortgaged Property
(as hereinafter defined).
F. This Deed of Trust is given by the Grantor for the benefit
of the Beneficiary for the benefit of the Holders of the Notes (collectively,
the "Secured Parties") to secure the payment and performance of all of the
Secured Obligations (as hereinafter defined).
AGREEMENT:
NOW THEREFORE, in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantor hereby covenants and agrees with the
Beneficiary as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Indenture. The following terms used in this Deed of Trust shall have the
following meanings:
"ACM" shall have the meaning assigned to such term in Section
4.7(ii) hereof.
"Affiliate" shall have the meaning assigned to such term in
the Indenture.
"Alteration" shall mean any and all alterations,
installations, improvements, additions, modifications or changes of a structural
nature of or to the Premises.
"Beneficiary" shall have the meanings assigned to such term in
the Preamble hereof.
"Business Day" shall have the meaning assigned to such term in
the Indenture.
"Charges" shall mean any and all real estate, property and
other taxes, assessments and special assessments, levies, fees, all water and
sewer rents and charges and all other governmental charges or Liens imposed upon
or assessed against, and all claims (including, without limitation, landlords',
carriers', mechanics', workmen's, repairmen's, laborers', materialmen's,
suppliers' and warehousemen's Liens and other claims arising by operation of
law) against, all or any portion of the Mortgaged Property.
"Collateral Account" shall have the meaning assigned to such
term in the Indenture.
"Collateral Documents" shall have the meaning assigned to such
term in the Indenture.
"Contested Liens" shall mean, collectively, any Liens incurred
in respect of any Charges to the extent that the amounts owing in respect
thereof are not yet delinquent or are being contested and otherwise comply with
the provisions of Section 9.1 hereof.
"Contracts" shall mean, collectively, any and all right, title
and interest of the Grantor in and to any and all contracts and other general
intangibles relating to the Mortgaged Property (including, without limitation,
all reciprocal easements and/or operating agreements, covenants, conditions and
restrictions and similar agreements affecting all or any portion of the
Mortgaged Property) and all reserves, deferred payments, deposits, refunds and
claims of every kind, nature or character relating thereto.
"Deed of Trust" shall have the meaning assigned to such term
in the Preamble hereof.
"Default Rate" shall mean the rate per annum equal to the
highest rate then payable under the Indenture.
"Destruction" shall mean any and all damage to, or loss or
destruction of, the Premises or any part thereof.
"Environmental Law" shall mean any applicable federal, state,
local or municipal statute, law, rule, regulation, ordinance, code, policy or
rule of common law and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment
binding on the Grantor, relating to pollution or protection of the environment,
or health or safety including, without limitation, any relating to the release
or threatened release of any Hazardous Materials.
"Event of Default" shall have the meaning assigned to such
term in the Indenture.
"Fixture" shall mean all machinery, apparatus, equipment,
fittings, fixtures, improvements and articles of personal property of every
kind, description and nature whatsoever now or hereafter attached or affixed to
the Land or any other Improvement or used in connection with the use and
enjoyment of the Land or any other Improvement or the maintenance or
preservation thereof, which by the nature of their location thereon or
attachment thereto are fixtures under the UCC or any other applicable law
including, without limitation, all utility systems, fire sprinkler and security
systems, drainage facilities, lighting facilities, all water, sanitary and storm
sewer, drainage, electricity, steam, gas, telephone and other utility equipment
and facilities, pipes, fittings and other items of every kind and description
now or hereafter attached to or located on the Land which by the nature of their
location thereon or attachment thereto are real property under applicable law,
HVAC equipment, boilers, electronic data processing, telecommunications or
computer equipment, refrigeration, electronic monitoring, water or lighting
systems, power, sanitation, waste removal, elevators, maintenance or other
systems or equipment and all additions thereto and betterments, renewals,
substitutions and replacements thereof.
"GAAP" shall have the meaning assigned to such term in the
Indenture.
"Governmental Authority" shall mean any federal, state, local,
foreign or other governmental, quasi-governmental or administrative (including
self-regulatory) body, instrumentality, department, agency, authority, board,
bureau, commission, office of any nature whatsoever or other subdivision
thereof, or any court, tribunal, administrative hearing body, arbitration panel
or other similar dispute-resolving body, whether now or hereafter in existence,
or any officer or official thereof, having jurisdiction over the Grantor or the
Mortgaged Property or any portion thereof.
"Grantor" shall have the meaning assigned to such term in the
Preamble hereof.
"Grantor's Interest" shall have the meaning assigned to such
term in Section 2.2 hereof.
"Guarantee" shall have the meaning assigned to such term in
Recital C hereof.
"Guarantors" shall have the meaning assigned to such term in
the Indenture.
"Hazardous Materials" shall mean any substance, chemical,
material, pollutant, waste, contaminant or constituent, which is subject to
regulation under or could give rise to liability under any Environmental Law.
"Holder" shall have the meaning assigned to such term in the
Indenture.
"Improvements" shall mean all buildings, structures and other
improvements of every kind or description and any and all Alterations now or
hereafter located, attached or erected on the Land including, without limitation
(i) all Fixtures, (ii) all attachments, railroad tracks, foundations, sidewalks,
drives, roads, curbs, streets, ways, alleys, passages, passageways, sewer
rights, parking areas, driveways, fences and walls and (iii) all materials now
or hereafter located on the Land intended for the construction, reconstruction,
repair, replacement, alteration, addition or improvement of or to such
buildings, Fixtures, structures and improvements, all of which materials shall
be deemed to be part of the Improvements immediately upon delivery thereof on
the Land and to be part of the improvements immediately upon their incorporation
therein.
"Indemnified Liabilities" shall have the meaning assigned to
such term in Section 14.6(i) hereof.
"Indemnitees" shall have the meaning assigned to such term in
Section 14.6(i) hereof.
"Indenture" shall have the meaning assigned to such term in
Recital A hereof.
"Insurance Policies" means the insurance policies and
coverages required to be maintained by the Grantor with respect to the Mortgaged
Property pursuant to Section 4.19(b) of the Indenture and all renewals and
extensions thereof.
"Insurance Requirements" means, collectively, all provisions
of the Insurance Policies, all requirements of the issuer of any of the
Insurance Policies and all orders, rules, regulations and any other requirements
of the National Board of Fire Underwriters (or any other body exercising similar
functions) binding upon the Grantor and applicable to the Mortgaged Property or
any use or condition thereof.
"Issuer" shall have the meaning assigned to such term in
Recital A hereof.
"Land" shall mean those certain tracts or parcels of land
described in Schedule A annexed to this Deed of Trust, together with all of the
Grantor's reversionary rights therein and all of the Grantor's rights in and to
any and all easements, rights-of-way, strips and gores of land, waters, water
courses, water rights, mineral, gas and oil rights and all power, air, light and
other rights, estates, titles, interests, privileges, liberties, servitudes,
licenses, tenements, hereditaments and appurtenances whatsoever, in any way
belonging, relating or appertaining thereto, or any part thereof, or which
hereafter shall in any way belong, relate or be appurtenant thereto.
"Landlord" shall mean any landlord, lessor, franchisor,
licensor or grantor, as applicable.
"Leases" shall mean, collectively, any and all interests of
the Grantor, as Landlord, in all leases and subleases of space, tenancies,
franchise agreements, licenses, occupancy, rental, access or concession
agreements and any other agreements pursuant to which any Person is granted a
possessory interest in or right to use or occupy all or any portion of the
Mortgaged Property, in each case whether now existing or hereafter entered into,
whether or not of record, relating in any manner to the Premises or the use or
occupancy thereof and any and all amendments, modifications, supplements,
replacements, extensions, renewals and/or guarantees, if any thereof, whether
now in effect or hereafter coming into effect.
"Lien" shall have the meaning assigned to such term in the
Indenture.
"Mortgaged Property" shall have the meaning assigned to such
term in Section 2.1 hereof.
"Net Loss Proceeds" shall have the meaning assigned to such
term in the Indenture.
"Net Proceeds" shall have the meaning assigned to such term in
the Indenture.
"Notes" shall have the meaning assigned to such term in
Recital A hereof.
"Officers' Certificate" shall have the meaning assigned to
such term in the Indenture.
"Permit" shall mean any and all permits, certificates,
approvals, authorizations, consents, licenses, variances, franchises or other
instruments, however characterized, of any Governmental Authority (or any Person
acting on behalf of a Governmental Authority) now or hereafter acquired or held,
together with all amendments, modifications, extensions, renewals and
replacements of any thereof issued or in any way furnished in connection with
the Mortgaged Property including, without limitation, building permits,
certificates of occupancy, environmental certificates, industrial permits or
licenses and certificates of operation.
"Permitted Collateral Liens" shall have the meaning assigned
to such term in Section 4.6 hereof.
"Permitted Liens" shall have the meaning assigned to such term
in the Indenture.
"Person" shall have the meaning assigned to such term in the
Indenture.
"Premises" shall mean, collectively, the Land and the
Improvements.
"Prior Liens" shall mean, collectively, the Liens identified
in Schedule B annexed to this Deed of Trust.
"Proceeds" shall mean, collectively, any and all cash proceeds
and noncash proceeds and shall include, without limitation, all (i) proceeds of
the conversion, voluntary or involuntary, of any of the Mortgaged Property or
any portion thereof into cash or liquidated claims, (ii) proceeds of any
insurance (except payments made to a Person, other than the Issuer or any
Subsidiary thereof, that is not a party to this Deed of Trust), indemnity,
warranty, guaranty or claim payable to the Beneficiary or to the Grantor from
time to time with respect to any of the Mortgaged Property including, without
limitation, all Net Loss Proceeds relating thereto, (iii) payments (in any form
whatsoever) made or due and payable to the Grantor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any portion of the Mortgaged Property by any Governmental
Authority (or any Person acting on behalf of a Governmental Authority)
including, without limitation, all Net Loss Proceeds relating thereto, (iv)
products of the Mortgaged Property and (v) other amounts from time to time paid
or payable under or in connection with any of the Mortgaged Property including,
without limitation, refunds of real estate taxes and assessments, including
interest thereon.
"Property Material Adverse Effect" shall mean, as of any date
of determination and whether individually or in the aggregate (a) any event,
circumstance, occurrence or condition which has caused or resulted in (or would
reasonably be expected to cause or result in) a material adverse effect on the
business or operations as presently conducted at the Mortgaged Property; (b) any
event, circumstance, occurrence or condition which has caused or resulted in (or
would reasonably be expected to cause or result in) a material adverse effect on
the value or utility of the Mortgaged Property; and (c) any event, circumstance,
occurrence or condition which has caused or resulted in (or would reasonably be
expected to cause or result in) a material adverse effect on the legality,
priority or enforceability of the Lien created by this Deed of Trust or the
rights and remedies of the Beneficiary or Trustee hereunder.
"Prudent Operator" shall mean the standard of care taken by a
prudent operator of property similar in use and configuration to the Premises
and located in the locality where the Premises are located.
"Records" shall mean, collectively, any and all right, title
and interest of the Grantor in and to any and all drawings, plans,
specifications, file materials, operating and maintenance records, catalogues,
tenant lists, correspondence, advertising materials, operating manuals,
warranties, guarantees, appraisals, studies and data relating to the Mortgaged
Property or the construction of any Alteration or the maintenance of any Permit.
"Rents" shall mean, collectively, any and all rents,
additional rents, royalties, issues, cash, guaranties, letters of credit, bonds,
sureties or securities deposited under any Lease to secure performance of the
Tenant's obligations thereunder, revenues, earnings, profits and income, advance
rental payments, payments incident to assignment, sublease or surrender of a
Lease, claims for forfeited deposits and claims for damages, now due or
hereafter to become due, with respect to any Lease, any indemnification against,
or reimbursement for, sums paid and costs and expenses incurred by the Grantor
under any Lease or otherwise, and any award in the event of the bankruptcy of
any Tenant under or guarantor of a Lease.
"Requirements of Law" shall mean, collectively, any and all
requirements of any Governmental Authority including, without limitation, any
and all orders, decrees, determinations, laws, treaties, ordinances, rules,
regulations or similar statutes or case law.
"Secured Obligations" shall mean all obligations (whether or
not constituting future advances, obligatory or otherwise) of the Issuer and any
and all of the Guarantors from time to time arising under or in respect of this
Deed of Trust, the Indenture, the Notes and the other Collateral Documents
(including, without limitation, the obligations to pay principal, interest and
all other charges, fees, expenses, commissions, reimbursements, premiums,
indemnities and other payments related to or in respect of the obligations
contained in this Deed of Trust, the Indenture, the Notes and the other
Collateral Documents), in each case whether (i) such obligations are direct or
indirect, secured or unsecured, joint or several, absolute or contingent, due or
to become due whether at stated maturity, by acceleration or otherwise, (ii)
arising in the regular course of business or otherwise, (iii) for payment or
performance and/or (iv) now existing or hereafter arising (including, without
limitation, interest and other obligations arising or accruing after the
commencement of any bankruptcy, insolvency, reorganization or similar proceeding
with respect to the Issuer, any Guarantor or any other Person, or which would
have arisen or accrued but for the commencement of such proceeding, even if such
obligation or the claim therefor is not enforceable or allowable in such
proceeding).
"Secured Parties" shall have the meaning assigned to such term
in Recital F hereof.
"Senior Secured Notes" shall have the meaning assigned to such
term in Recital A hereof.
"Subordination Agreement" shall mean a subordination,
nondisturbance and attornment agreement substantially in the form of Exhibit 1
annexed to this Deed of Trust.
"Subsidiaries" shall have the meaning assigned to such term in
the Indenture.
"Taking" shall mean any taking of the Mortgaged Property or
any part thereof, in or by condemnation or other eminent domain proceedings
pursuant to any law, general or special, or by reason of the temporary
requisition of the use or occupancy of the Mortgaged Property or any part
thereof, by any Governmental Authority, civil or military.
"Tax Escrow Fund" shall have the meaning assigned to such term
in Section 7.2 hereof.
"Tenant" shall mean any tenant, lessee, sublessee, franchisee,
licensee, grantee or obligee, as applicable.
"UCC" shall mean the Uniform Commercial Code as in effect on
the date hereof in the jurisdiction in which the Premises are located; provided,
however, that if by reason of mandatory provisions of law, the perfection or the
effect of perfection or non-perfection of the security interest in any item or
portion of the Mortgaged Property is governed by the Uniform Commercial Code as
in effect in a jurisdiction other than the jurisdiction in which the Premises
are located, "UCC" shall mean the Uniform Commercial Code as in effect in such
other jurisdiction for purposes of the provisions hereof relating to such
perfection or effect of perfection or non-perfection.
SECTION 1.2 Interpretation. In this Deed of Trust, unless
otherwise specified, (i) singular words include the plural and plural words
include the singular, (ii) words importing any gender include the other gender,
(iii) references to any Person include such Person's successors and assigns and
in the case of an individual, the word "successors" includes such Person's
heirs, devisees, legatees, executors, administrators and personal
representatives, (iv) references to any statute or other law include all
applicable rules, regulations and orders adopted or made thereunder and all
statutes or other laws amending, consolidating or replacing the statute or law
referred to, (v) the words "consent," "approve" and "agree," and derivations
thereof or words of
similar import, mean the prior written consent, approval or agreement of the
Person in question not to be unreasonably withheld, (vi) the words "include" and
"including," and words of similar import, shall be deemed to be followed by the
words "without limitation," (vii) the words "hereto," "herein," "hereof" and
"hereunder," and words of similar import, refer to this Deed of Trust in its
entirety, (viii) references to Articles, Sections, Schedules, Exhibits,
subsections, paragraphs and clauses are to the Articles, Sections, Schedules,
Exhibits, subsections, paragraphs and clauses hereof, (ix) the Schedules and
Exhibits to this Deed of Trust, in each case as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with the
provisions hereof, are incorporated herein by reference, (x) the titles and
headings of Articles, Sections, Schedules, Exhibits, subsections, paragraphs and
clauses are inserted as a matter of convenience only and shall not affect the
constructions of any provisions hereof and (xi) all obligations of the Grantor
hereunder shall be satisfied by the Grantor at the Grantor's sole cost and
expense.
SECTION 1.3 Resolution of Drafting Ambiguities. The Grantor
acknowledges and agrees that it was represented by counsel in connection with
the execution and delivery hereof, that it and its counsel reviewed and
participated in the preparation and negotiation hereof and that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party (i.e., Beneficiary) shall not be employed in the interpretation
hereof.
ARTICLE II
GRANTS AND SECURED OBLIGATIONS
SECTION 2.1 Grant of Mortgaged Property. The Grantor hereby
pledges, gives, grants, bargains, sells, assigns and conveys to the Trustee, its
successors and assigns, in trust, with powers of sale, for the use and benefit
of the Beneficiary, and hereby grants to the Beneficiary (for its benefit and
for the benefit of the other Secured Parties), a security interest in and Deed
of Trust Lien upon all of the Grantor's estate, right, title and interest in, to
and under the following property, whether now owned or held or hereafter
acquired from time to time (collectively, the "Mortgaged Property"):
(i) Land;
(ii) Improvements;
(iii) Leases;
(iv) Rents;
(v) Permits;
(vi) Contracts;
(vii) Records; and
(viii) Proceeds.
Notwithstanding the foregoing provisions of this Section 2.1,
Mortgaged Property shall not include a grant of any of the Grantor's right,
title or interest in (i) any Contract to which the Grantor is a party or any of
its rights or interests thereunder (other than (x) the right to receive any
payment of money (including without limitation accounts, general intangibles and
payment intangibles (each as defined in the UCC) or any other rights referred to
in Sections 9-406(f), 9-407(a) or 9-408(a) of the UCC and (y) any proceeds,
substitutions or replacements thereof) to the extent, but only to the extent,
that such a grant would, under the
terms of such Contract, result in a breach or termination of the terms of, or
constitute a default under or termination of such Contract and (ii) any Permit
to the extent, but only to the extent that, such grant shall constitute or
result in abandonment, invalidation or rendering unenforceable any right, title
or interest of the Grantor therein; provided, however, that at such time as any
Contract or Permit described in clauses (i) and (ii) of this sentence is no
longer subject to such restriction, such applicable Contract or Permit shall
(without any act or delivery by any Person) constitute Mortgaged Property
hereunder.
TO HAVE AND TO HOLD the Mortgaged Property, together with the rights, privileges
and appurtenances thereto belonging unto (i) Trustee, his substitutes or
successors, forever, to the extent the same constitutes real property or an
interest therein and (ii) Beneficiary, to the extent the same does not
constitute real property or an interest therein, in either case for the benefit
of Beneficiary and Beneficiary's successors and assigns forever, for the purpose
of securing payment and performance by Grantor of the Secured Obligations, and
Grantor hereby binds itself and its successors and assigns to warrant and
forever defend the Mortgaged Property unto each of the Trustee and Beneficiary,
their substitutes, successors and assigns, as the case may be, against the claim
or claims of all persons claiming or to claim the same or any part thereof.
SECTION 2.2 Assignment of Leases and Rents. During the term
hereof, the Grantor absolutely, presently, unconditionally and irrevocably
pledges, grants, sells, conveys, delivers, hypothecates, assigns, transfers and
sets over to the Beneficiary, and grants to the Beneficiary, subject to the
terms of Article VI hereof, all of the Grantor's estate, right, title, interest,
claim and demand, as Landlord, under any and all of the Leases including,
without limitation, the following (such assigned rights, the "Grantor's
Interest"):
(i) the immediate and continuing right to receive and collect
Rents payable by the Tenants pursuant to the Leases;
(ii) all claims, rights, powers, privileges and remedies of
the Grantor, whether provided for in the Leases or arising by statute
or at law or in equity or otherwise, consequent on any failure on the
part of the Tenants to perform or comply with any term of the Leases
including damages or other amounts payable to the Grantor as a result
of such failure;
(iii) all rights to take all actions upon the happening of a
default under the Leases as shall be permitted by the Leases or by law
including, without limitation, the commencement, conduct and
consummation of proceeding at law or in equity; and
(iv) the full power and authority, in the name of the Grantor
or otherwise, to enforce, collect, receive and receipt for any and all
of the foregoing and to take all other actions whatsoever which the
Grantor, as Landlord, is or may be entitled to take under the Leases.
SECTION 2.3 Secured Obligations. This Deed of Trust secures,
and the Mortgaged Property is collateral security for, the payment and
performance in full when due of the Secured Obligations.
SECTION 2.4 Future Advances. This Deed of Trust shall secure
future advances. The maximum aggregate amount of all advances of principal under
the Indenture (which advances are obligatory to the extent the conditions set
forth in the Indenture relating thereto are satisfied) that may be outstanding
hereunder at any time is $125,000,000 plus interest thereon, collection costs,
sums advanced for the payment of taxes, assessments, maintenance and repair
charges, insurance premiums and any other reasonable costs incurred to protect
the security encumbered hereby or the Lien hereof, reasonable expenses incurred
by the Beneficiary by reason of any default by the Grantor under the terms
hereof, together with all other sums secured hereby.
SECTION 2.5 No Release. Nothing set forth in this Deed of
Trust shall relieve the Grantor from the performance of any term, covenant,
condition or agreement on the Grantor's part to be performed or
observed under or in respect of any of the Mortgaged Property or from any
liability to any Person under or in respect of any of the Mortgaged Property or
shall impose any obligation on the Beneficiary or any other Secured Party to
perform or observe any such term, covenant, condition or agreement on the
Grantor's part to be so performed or observed or shall impose any liability on
the Beneficiary or any other Secured Party for any act or omission on the part
of the Grantor relating thereto or for any breach of any representation or
warranty on the part of the Grantor contained in this Deed of Trust, the
Indenture, the Notes or the Collateral Documents, or under or in respect of the
Mortgaged Property or made in connection herewith or therewith. The obligations
of the Grantor contained in this Section 2.5 shall survive the termination
hereof and the discharge of the Grantor's other obligations under this Deed of
Trust and the Indenture, the Notes and the Collateral Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GRANTOR
SECTION 3.1 Authority and Validity.
The Grantor represents and warrants that as of the date
hereof:
(i) it is duly organized or formed, validly existing and, if
applicable, in good standing under the laws of the jurisdiction of its
organization;
(ii) it is duly qualified to transact business and is in good
standing in the state in which the Mortgaged Property is located;
(iii) it has full corporate or other organizational power and
lawful authority to execute and deliver this Deed of Trust and to
mortgage and grant a Lien on and security interest in the Mortgaged
Property and otherwise assign the Grantor's Interest and otherwise
perform its obligations as contemplated herein, and all corporate and
governmental actions, consents, authorizations and approvals necessary
or required therefor have been duly and effectively taken or obtained;
and
(iv) this Deed of Trust is a legal, valid and binding obligation
of the Grantor, enforceable against the Grantor in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
SECTION 3.2 Warranty of Title. The Grantor represents and
warrants that:
(i) it has good fee simple title to the Premises and the
Landlord's interest and estate under or in respect of the Leases and
good title to the interest it purports to own or hold in and to each of
the Permits, the Contracts and the Records, in each case subject to no
Liens, except for Permitted Collateral Liens;
(ii) it has good title to the interest it purports to own or
hold in and to all rights and appurtenances to or that constitute a
portion of the Mortgaged Property, except for Permitted Collateral
Liens;
(iii) it is in compliance with each term, condition and provision
of any obligation of the Grantor which is secured by the Mortgaged
Property or the noncompliance with which would result in a Property
Material Adverse Effect; and
(iv) this Deed of Trust creates and constitutes a valid and
enforceable first priority Lien on the Mortgaged Property subject to
Permitted Collateral Liens, and, to the extent any of the Mortgaged
Property shall consist of Fixtures, a first priority security interest
in the Fixtures, which first priority Lien and first priority security
interest are subject only to Permitted Collateral Liens.
SECTION 3.3 Condition of Mortgaged Property. The Grantor
represents and warrants that:
(i) there has been issued and there remains in full force and
effect subject to no revocation, suspension, forfeiture or
modification, each and every Permit necessary for the present use,
operation and occupancy of the Premises by the Grantor and its Tenants
and the conduct of their respective businesses and all required zoning,
building code, land use, environmental and other similar Permits,
except where the failure to be so issued and to be in full force and
effect would not result in a Property Material Adverse Effect;
(ii) the Premises and the present and contemplated use and
occupancy thereof comply with all applicable zoning ordinances,
building codes, land use laws, set back or other development and/or use
requirements of Governmental Authorities except where such
noncompliance would not result in a Property Material Adverse Effect;
(iii) the Premises are served by all utilities (including,
without limitation, water and sewer systems) necessary for the present
use thereof, and all utility services are provided by public or private
utilities and the Premises have accepted or are equipped to accept such
utility services and the Grantor has not received notice of termination
of such utility service, except where the failure to be so served would
not result in a Property Material Adverse Effect;
(iv) the Grantor has access to the Premises from roads
sufficient to allow the Grantor and its Tenants and invitees to conduct
their respective businesses at the Premises in accordance with sound
commercial practices and the Grantor has not received notice of
termination of such access, except where the failure to have such
access would not result in a Property Material Adverse Effect;
(v) the Grantor has not received notice of any Taking or the
commencement or pendency of any action or proceeding therefor, other
than such Takings as would not result in a Property Material Adverse
Effect;
(vi) there has not occurred any Destruction of the Premises or
any portion thereof as a result of any fire or other casualty that, as
of the date hereof, has not been repaired in all material respects,
other than such Destruction as would not have a Property Material
Adverse Effect;
(vii) there are no disputes regarding boundary lines, location,
encroachments or possession of any portions of the Mortgaged Property
and no state of facts exists which could give rise to any such claim
other than such disputes as would not result in a Property Material
Adverse Effect;
(viii) all liquid and solid waste disposal, septic and sewer
systems located on the Premises are in a good and safe condition and
repair and in compliance with all Requirements of Law, except where the
failure to so comply would not result in a Property Material Adverse
Effect;
(ix) no portion of the Premises is located in an area
identified by the Federal Emergency Management Agency or any successor
thereto as an area having special flood hazards pursuant to the Flood
Insurance Acts or, if any portion of the Premises is located within
such area, the Grantor has obtained the insurance prescribed in
Article VIII hereof;
(x) the Premises are assessed for real estate tax purposes as
one or more wholly independent tax lot or lots, separate from any
adjoining land or improvements not constituting a portion of such lot
or lots, and no other land or improvements are assessed and taxed
together with the Premises or any portion thereof, other than such
cases where the failure to be so assessed would not result in a
Property Material Adverse Effect; and
(xi) there are no options or rights of first refusal to
purchase or acquire all or any portion of the Mortgaged Property, other
than such options or rights of first refusal as would not result in a
Property Material Adverse Effect.
SECTION 3.4 Leases. The Grantor represents and warrants that as
of the date hereof:
(i) the Leases identified in Schedule C attached hereto are
the only Leases in existence on the date hereof relating to the
Premises;
(ii) true copies of such Leases have been previously delivered
to the Beneficiary and there are no agreements with any Tenant under
such Leases other than those agreements expressly set forth therein;
(iii) the Grantor is the sole owner of all of the Grantor's
Interest in such Leases;
(iv) each of such Leases is in full force and effect,
constitutes a legal, valid and binding obligation of the Grantor and
the applicable Tenant thereunder, and is enforceable against the
Grantor and such Tenant in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
or by equitable principles relating to enforceability;
(v) there is no default under any of such Leases and there is
existing no condition which with the giving of notice or passage of
time or both would cause a default thereunder;
(vi) all Rents due under such Leases have been paid in full;
(vii) none of the Rents reserved under such Leases have been
assigned or otherwise pledged or hypothecated except in favor of the
Beneficiary pursuant to the provisions hereof;
(viii) none of the Rents (other than any security deposit
collected in accordance with the provisions of the applicable Lease)
have been collected for more than one (1) month in advance;
(ix) there exists no offsets or defenses to the payment of any
portion of the Rents and the Grantor owes no monetary obligation to any
Tenant under any such Lease;
(x) the Grantor has received no notice from any Tenant
challenging the validity or enforceability of any such Lease; and
(xi) no such Lease contains any option to purchase, right of
first refusal to purchase, right of first refusal to relet, or any
other similar provision; and
(xii) each such Lease is subordinate to this Deed of Trust
either pursuant to its terms or pursuant to a recordable Subordination
Agreement.
SECTION 3.5 Insurance. The Grantor represents and warrants
that, except where the failure of clauses (i), (ii) or (iii) hereof to be true
would not have a Property Material Adverse Effect, (i) the Premises
and the use, occupancy and operation thereof comply with all Insurance
Requirements and there exists no default under any Insurance Requirement, (ii)
all premiums due and payable with respect to the Insurance Policies have been
paid, (iii) all Insurance Policies are in full force and effect and the Grantor
has not received notice of violation or cancellation thereof and (iv) all
insurance certificates required pursuant to the Indenture have been delivered to
the Beneficiary.
SECTION 3.6 Charges. The Grantor represents and warrants that
all Charges imposed upon or assessed against the Mortgaged Property have been
paid and discharged except to the extent such Charges constitute a Lien not yet
due and payable or to the extent such Charges are being contested in accordance
with Section 9.1 hereof.
SECTION 3.7 Environmental. The Grantor represents and warrants
that:
(i) it has obtained all Permits which are necessary with
respect to the ownership and operation of its business and the
Mortgaged Property under any and all applicable Environmental Laws and
is in compliance with all terms and conditions thereof, except where
the failure so to obtain or to be in compliance would not result in a
Property Material Adverse Effect;
(ii) it is in compliance with any and all applicable
Environmental Laws including, without limitation, all other
limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in the
Environmental Laws, except where the failure so to be in compliance
would not result in a Property Material Adverse Effect;
(iii) there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation,
proceeding, notice of demand letter pending or threatened against it or
any Affiliate under the Environmental Laws which would result in a
fine, penalty or other cost or expense other than such instances that
would not result in a Property Material Adverse Effect; and
(iv) there are no past or present events, conditions,
circumstances, activities, practices, incidents, actions or plans which
may interfere with or prevent compliance with the Environmental Laws,
or which may give rise to any common law or legal liability including,
without limitation, liability under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or any
other Environmental Law or related common law theory or otherwise form
the basis of any claim, action, demand, suit, proceeding, hearing or
notice of violation, study or investigation, based on or related to the
manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling, or the emission, discharge,
release or threatened release into the environment, of any Hazardous
Materials which would result in a fine, penalty or other cost or
expense other than such instances that would not result in a Property
Material Adverse Effect.
SECTION 3.8 No Conflicts, Consents, etc. Neither the execution
and delivery hereof by the Grantor nor the consummation of the transactions
herein contemplated nor the fulfillment of the terms hereof (i) violates the
terms of any agreement, indenture, mortgage, deed of trust, equipment lease,
instrument or other document to which the Grantor is a party, or by which it may
be bound or to which any of its properties or assets may be subject, (ii)
conflicts with any Requirement of Law applicable to the Grantor or its property
or (iii) results in or requires the creation or imposition of any Lien (other
than the Lien contemplated hereby) upon or with respect to any of the Mortgaged
Property, except where such violation, conflict, creation or imposition would
not have a Property Material Adverse Effect. No consent of any party (including,
without limitation, equityholders or creditors of the Grantor) and no consent,
authorization, approval, license or other action by, and no notice to or filing
with, any Governmental Authority or regulatory body or other Person (other than
with respect to any required Permits) is required for (i) the granting of a
mortgage Lien on and security interest in the Mortgaged Property by the Grantor
granted by it pursuant to this Deed of Trust or for
the execution, delivery or performance hereof by the Grantor except for the
filing of this Deed of Trust and the other filings contemplated hereby or (ii)
the exercise by the Beneficiary of the remedies in respect of the Mortgaged
Property pursuant to this Deed of Trust other than those required by law in
connection with the exercise of the applicable remedy.
SECTION 3.9 Benefit to the Grantor. The Grantor represents and
warrants that it will receive substantial benefit as a result of the execution,
delivery, and performance of the Indenture, the Notes and the Collateral
Documents.
ARTICLE IV
CERTAIN COVENANTS OF GRANTOR
SECTION 4.1 Preservation of Corporate Existence. The Grantor
shall:
(i) preserve and maintain in full force and effect its
existence and good standing under the laws of the jurisdiction of its
organization;
(ii) preserve and maintain in full force and effect its
qualification to transact business and good standing in the state in
which the Mortgaged Property is located; and
(iii) preserve and maintain in full force and effect all
consents, authorizations and approvals necessary or required of any
Governmental Authority or any other Person relating to the execution,
delivery and performance hereof, except where the failure to do so
would not result in a Property Material Adverse Effect.
SECTION 4.2 Title. The Grantor shall:
(i) (A) keep in effect all material rights and appurtenances to
or that constitute a part of the Mortgaged Property and (B) protect,
preserve and defend its interest in the Mortgaged Property and title
thereto, except against Permitted Collateral Liens (other than the Lien
created by this Deed of Trust);
(ii) (A) comply, in all material respects, with each of the
terms, conditions and provisions of any obligation of the Grantor which
is secured by the Mortgaged Property, except where the failure to so
comply would not result in a Property Material Adverse Effect, or the
noncompliance with which may result in the imposition of a Lien on the
Mortgaged Property, (B) forever warrant and defend to the Beneficiary
the Lien and security interests created and evidenced hereby and the
validity and priority hereof in any action or proceeding against the
claims of any and all Persons whomsoever affecting or purporting to
affect the Mortgaged Property or any of the rights of the Beneficiary
hereunder, except against Permitted Collateral Liens (other than the
Lien of this Deed of Trust), and (C) maintain a valid and enforceable
first priority Lien, except for Permitted Collateral Liens (other than
the Lien of this Deed of Trust) on the Mortgaged Property and, to the
extent any of the Mortgaged Property shall consist of Fixtures, a first
priority security interest in the Mortgaged Property, which first
priority Lien and security interest shall be subject only to Permitted
Collateral Liens; and
(iii) immediately upon obtaining knowledge of the pendency of any
proceedings for the eviction of the Grantor from the Mortgaged Property
or any part thereof by paramount title or otherwise questioning the
Grantor's right, title and interest in, to and under the Mortgaged
Property as warranted in this Deed of Trust, or of any condition that
could give rise to any such proceedings, notify the Beneficiary
thereof. The Beneficiary may participate in such proceedings and the
Grantor
will deliver or cause to be delivered to the Beneficiary all
instruments requested by the Beneficiary to permit such participation.
In any such proceedings, the Beneficiary may be represented by counsel
reasonably satisfactory to the Beneficiary at the reasonable expense of
the Grantor. If, upon the resolution of such proceedings, the Grantor
shall suffer a loss of the Mortgaged Property or any part thereof or
interest therein and title insurance proceeds shall be payable in
connection therewith, such proceeds are hereby assigned to and shall be
paid to the Beneficiary for deposit into the Collateral Account and
shall be applied in the manner applicable to Net Loss Proceeds in
accordance with the provisions of Sections 4.16, 11.02, and 10.05(c) of
the Indenture.
SECTION 4.3 Maintenance and Use of Mortgaged Property;
Alterations.
(i) Maintenance. The Grantor shall cause the representations
and warranties set forth in Section 3.3 hereof to continue to be true in each
and every respect and shall pay or cause to be paid when due all Charges, costs
and expenses relating thereto, other than such Charges being contested in
accordance with Section 9.1 hereof.
(ii) Maintenance of Premises. The Grantor shall not commit or
suffer any waste on the Premises. The Grantor shall, at all times, maintain the
Premises in good working order, condition and repair, reasonable wear and tear
excepted, and shall use commercially reasonable efforts to make or cause to be
made all repairs, structural or nonstructural, which are necessary or
appropriate in the conduct of the Grantor's business. The Grantor shall not,
except as permitted in Section 4.3(iii) hereof, alter the occupancy or use of
all or any portion of the Premises without the prior written consent of the
Beneficiary, which consent shall not be unreasonably withheld. Except to the
extent permitted pursuant to the provisions of Section 4.3(iii) hereof, the
Grantor shall not remove, demolish or alter the structural character of any
Improvement now or hereafter erected upon all or any portion of the Premises, or
permit any such removal, demolition or alteration, without the prior written
consent of the Beneficiary, which consent shall not be unreasonably withheld.
(iii) Alterations. The Grantor shall not, without the prior
written consent of the Beneficiary, which consent shall not be unreasonably
withheld, make any Alteration to the Premises except as permitted by Sections
10.04 and 10.06 of the Indenture. Whether or not the making of any Alteration
shall require the consent of the Beneficiary pursuant to the immediately
preceding sentence, the Grantor shall (A) complete each Alteration promptly, in
a good and workmanlike manner and in compliance, in all material respects, with
all applicable local laws, ordinances and requirements and (B) pay when due all
claims for labor performed and materials furnished in connection with such
Alteration, unless contested in accordance with the provisions of Article IX
hereof.
(iv) Permits. The Grantor shall maintain, or cause to be
maintained, in full force and effect all Permits contemplated by and subject to
Section 3.3(i) hereof. Unless and to the extent contested by the Grantor in
accordance with the provisions of Article IX hereof, the Grantor shall comply,
in all material respects, with all requirements set forth in the Permits and all
Requirements of Law applicable to all or any portion of the Mortgaged Property
or the condition, use or occupancy of all or any portion thereof or any recorded
deed of restriction, declaration, covenant running with the land or otherwise,
now or hereafter in force, subject to the provisions of Section 3.3 hereof.
(v) Zoning. The Grantor shall not initiate, join in, or consent
to any change in the zoning or any other permitted use classification of the
Premises without the prior written consent of the Beneficiary, which consent
shall not be unreasonably withheld.
SECTION 4.4 Notices Regarding Certain Defaults. The Grantor
shall, promptly upon receipt of any written notice regarding (i) any default by
the Grantor relating to the Mortgaged Property or any portion thereof or (ii)
the failure to discharge any of Grantor's obligations with respect to the
Mortgaged Property or any portion thereof described herein, furnish a copy of
such notice to the Beneficiary.
SECTION 4.5 Access to Mortgaged Property, Books and Records;
Other Information. Upon request to the Grantor, the Beneficiary, its agents,
accountants and attorneys shall have full and free access to visit and inspect,
as applicable, during normal business hours and such other reasonable time as
may be requested by the Beneficiary to all of the Mortgaged Property including,
without limitation, all of the books, correspondence and records of the Grantor
relating thereto. The Beneficiary and its representatives may examine the same,
take extracts therefrom and make photocopies thereof. The Grantor shall, at any
and all times, within a reasonable time after written request by the
Beneficiary, furnish or cause to be furnished to the Beneficiary, in such manner
and in such detail as may be reasonably requested by the Beneficiary, additional
information with respect to the Mortgaged Property.
SECTION 4.6 Limitation on Liens; Transfer Restrictions. The
Grantor may not, without the prior written consent of the Beneficiary, further
mortgage, encumber, hypothecate, sell, convey or assign all or any part of the
Mortgaged Property or suffer or allow any of the foregoing to occur by operation
of law or otherwise; provided, however, that the Grantor shall have the right to
suffer to exist the following Liens in respect of the Mortgaged Property: (i)
Prior Liens (but not extensions, amendments, supplements or replacements of
Prior Liens unless (A) extended, amended, supplemented or replaced in a manner
permitted by the Indenture or (B) consented to by the Beneficiary which consent
shall not be unreasonably withheld), (ii) the Lien and security interest created
by this Deed of Trust or any other Collateral Document, (iii) Contested Liens,
(iv) Liens described in clause (9) of the definition of Permitted Liens
(provided, however, that such Liens shall not extend to or cover any Mortgaged
Property other than equipment subject to Capital Leases, Obligations or Purchase
Money Obligations incurred in accordance with the provisions of the Indenture)
or clause (4) of the definition of Permitted Liens, and (v) Leases to the extent
permitted pursuant to the provisions of Article V hereof (the Liens described in
clauses (i) through (v) of this sentence, collectively, "Permitted Collateral
Liens").
SECTION 4.7 Environmental.
(i) Hazardous Materials. The Grantor shall (A) comply with any
and all present and future Environmental Laws applicable to the Mortgaged
Property, (B) not release, store, treat, handle, generate, discharge or dispose
of any Hazardous Materials at, on, under or from the Mortgaged Property in
violation of or in a manner that could result in any material liability under
any present and future Environmental Law and (C) take all necessary steps to
initiate and expeditiously complete all remedial, corrective and other action to
eliminate any such effect. In the event the Grantor fails to comply with the
covenants in the preceding sentence, the Beneficiary may, in addition to any
other remedies set forth herein, as agent for the Grantor and at the Grantor's
sole cost and expense, cause any remediation, removal or response action
relating to Hazardous Materials required by applicable Environmental Laws to be
taken and the Grantor shall provide to the Beneficiary and its agents and
employees access to the Mortgaged Property for such purpose. Any reasonable
costs or expenses incurred by the Beneficiary for such purpose shall be
immediately due and payable by the Grantor and shall bear interest at the
Default Rate. The Beneficiary shall have the right at any time when an Event of
Default shall have occurred and be continuing and at such other times when a
potential violation of any present or future Environmental Law exists which in
the Beneficiary's reasonable judgment could result in any material liability or
obligation under such Environmental Law, at the sole cost and expense of the
Grantor, to conduct an environmental audit of the Mortgaged Property by such
persons or firms appointed by the Beneficiary, and the Grantor shall cooperate
in all respects in the conduct of such environmental audit, including, without
limitation, by providing access to the Mortgaged Property and to all records
relating thereto. To the extent that any such environmental audit identifies
conditions which in the Beneficiary's reasonable judgment would result in any
material liability or obligation under any present or future Environmental Law,
the Grantor agrees to expeditiously correct any such violation or respond to
conditions giving rise to such liability or obligations in a manner which
complies in all material respects with the Environmental Laws and mitigates
associated health and environmental risks. The Grantor shall indemnify and hold
the Beneficiary and each of the other Secured Parties harmless from and against
all loss, cost, damage or reasonable expense (including, without limitation,
reasonable attorneys' and consultants' fees and
disbursements) that the Beneficiary or any other Secured Party may sustain by
reason of the assertion against the Beneficiary or any Secured Party by any
party of any claim relating to such Hazardous Materials on, under or from the
Mortgaged Property or actions taken with respect thereto as authorized
hereunder, except to the extent arising from the gross negligence or willful
misconduct of the Beneficiary or any other Secured Party. The foregoing
indemnification shall survive repayment of all Secured Obligations and any
release or assignment hereof; and
(ii) Asbestos. The Grantor shall not install nor permit to be
installed in or removed from the Mortgaged Property, asbestos or any
asbestos-containing material (collectively, "ACM") except in compliance, in all
material respects, with all applicable Environmental Laws, and with respect to
any ACM currently present in the Mortgaged Property, the Grantor shall promptly
either (A) remove any ACM which such Environmental Laws require to be removed or
(B) otherwise comply, in all material respects, with such Environmental Laws
with respect to such ACM, all at the Grantor's sole cost and expense. If the
Grantor shall fail so to remove any ACM or otherwise comply, in all material
respects, with such laws or regulations, the Beneficiary may, in addition to any
other remedies set forth herein, take reasonable or necessary steps to eliminate
any ACM from the Mortgaged Property or otherwise comply, in all material
respects, with applicable law, regulations or orders and the Grantor shall
provide to the Beneficiary and its agents and employees access to the Mortgaged
Property for such purpose. Any reasonable costs or expenses incurred by the
Beneficiary for such purpose shall be immediately due and payable by the Grantor
and bear interest at the Default Rate. The Grantor shall indemnify and hold the
Beneficiary and the other Secured Parties harmless from and against all loss,
cost, damage and expense (including, without limitation, reasonable attorneys'
and consultants' fees and disbursements) that the Beneficiary or the other
Secured Parties may sustain, as a result of the presence of any ACM and any
removal thereof or compliance with all applicable Environmental Laws, except to
the extent arising from the gross negligence or willful misconduct of the
Beneficiary or any other Secured Party. The foregoing indemnification shall
survive repayment of all Secured Obligations and any release or assignment
hereof.
SECTION 4.8 Estoppel Certificates. The Grantor shall, from
time to time, upon thirty (30) days' prior written reasonable request of the
Beneficiary, execute, acknowledge and deliver to the Beneficiary an Officers'
Certificate stating that this Deed of Trust, the Indenture, the Notes and the
Collateral Documents are unmodified and in full force and effect (or, if there
have been modifications, that this Deed of Trust, the Indenture, the Notes and
the Collateral Documents, as applicable, is or are in full force and effect as
modified and setting forth such modifications) and stating the date to which
principal and interest have been paid on the Notes.
ARTICLE V
LEASES
SECTION 5.1 Grantor's Affirmative Covenants with Respect to
Leases. With respect to each Lease, the Grantor shall:
(i) observe and perform, in all material respects, all the
obligations imposed upon the Landlord under such Lease;
(ii) promptly send copies to the Beneficiary of all notices of
default which the Grantor shall send or receive thereunder; and
(iii) enforce all of the terms, covenants and conditions
contained in such Lease upon the part of the Tenant thereunder to be
observed or performed to the extent it would be commercially reasonable
to do so.
SECTION 5.2 Grantor's Negative Covenants with Respect to
Leases. With respect to each Lease, the Grantor shall not, without the prior
written consent of the Beneficiary, which consent shall not be unreasonably
withheld:
(i) receive or collect, or permit the receipt or collection
of, any Rent under such Lease more than one (1) month in advance of the
respective period in respect of which such Rent is to accrue, except:
(A) in connection with the execution and delivery of
such Lease (or of any amendment to such Lease),
Rent thereunder may be collected and received in
advance in an amount not in excess of one (1)
month's Rent;
(B) the amount held by Landlord as a reasonable
security deposit thereunder; and
(C) any amount received and collected for escalation
and other charges in accordance with the terms of
such Lease;
(ii) assign, transfer or hypothecate (other than to the
Beneficiary hereunder) any Rent under such Lease whether then due or to
accrue in the future or the interest of the Grantor as Landlord under
such Lease;
(iii) enter into any amendment or modification of such Lease
which would materially decrease the unexpired term thereof or decrease
the amount of the Rents payable thereunder or materially impair the
value or utility of the Mortgaged Property or the security provided by
this Deed of Trust;
(iv) terminate (whether by exercising any contractual right of
the Grantor to recapture leased space or otherwise) or permit the
termination of such Lease or accept surrender of all or any portion of
the space demised under such Lease prior to the end of the term thereof
or accept assignment of such Lease to the Grantor unless:
(A) the Tenant under such Lease has not paid the
equivalent of two (2) months' Rent and the
Grantor has made reasonable efforts to collect
such Rent; and
(B) it would be commercially reasonable to terminate
such Lease; or
(v) waive, excuse, condone or in any manner discharge or
release any Tenants of or from the material obligations of such Tenants
under their respective Leases or guarantors of Tenants from any
material obligations under any guarantees of the Leases except as the
same would be done by a Prudent Operator with due regard for the
security afforded the Beneficiary thereby.
SECTION 5.3 Additional Requirements with Respect to New
Leases. In addition to the requirements of Sections 5.1 and 5.2 hereof, the
Grantor shall not enter into any Lease after the date hereof unless the Tenant
under such Lease has entered into a Subordination Agreement and has otherwise
complied with the provisions of Section 10.06 of the Indenture.
ARTICLE VI
CONCERNING ASSIGNMENT OF LEASES AND RENTS
SECTION 6.1 Present Assignment; License to the Grantor.
Section 2.2 of this Deed of Trust constitutes a present, absolute, effective,
irrevocable and complete assignment by the Grantor to the Beneficiary of the
Leases and Rents and the right, subject to applicable law, to collect all sums
payable to the Grantor thereunder and apply the same as the Beneficiary may, in
its sole discretion, determine to be appropriate (including the payment of
reasonable costs and expenses in connection with the maintenance, operation,
improvement, insurance, taxes and upkeep of the Mortgaged Property), which is
not conditioned upon the Beneficiary being in possession of the Premises. The
Beneficiary hereby grants to the Grantor, however, a license to collect and
apply the Rents and to enforce the obligations of Tenants under the Leases.
Immediately upon the occurrence of and during the continuance of any Event of
Default or a Default, the license granted in the immediately preceding sentence
shall cease and terminate, with or without any notice, action or proceeding or
the intervention of a receiver appointed by a court.
SECTION 6.2 Collection of Rents by the Beneficiary.
(i) From and after the occurrence and during the continuance of
an Event of Default or a Default, any Rents receivable by the Beneficiary
hereunder, after payment of all proper costs and expenses as Beneficiary may, in
its sole discretion, determine to be appropriate (including the payment of
reasonable costs and expenses in connection with the maintenance, operation,
improvement, insurance, taxes and upkeep of the Mortgaged Property), shall be
applied to the Secured Obligations or, at the option of the Beneficiary, shall
be held by the Beneficiary as additional collateral to secure the performance by
the Grantor of the Secured Obligations. The Beneficiary shall be accountable to
the Grantor only for Rents actually received by the Beneficiary. The collection
of such Rents and the application thereof shall not cure or waive any Event of
Default or a Default or waive, modify or affect notice of Event of Default or a
Default or invalidate any act done pursuant to such notice.
(ii) The Grantor hereby irrevocably authorizes and directs
Tenant under each Lease to rely upon and comply with any and all notices or
demands from the Beneficiary for payment of Rents to the Beneficiary and the
Grantor shall have no claim against Tenant for Rents paid by Tenant to the
Beneficiary pursuant to such notice or demand.
SECTION 6.3 No Release. Neither this Deed of Trust nor any
action or inaction on the part of the Beneficiary shall release any Tenant under
any Lease, any guarantor of any Lease or the Grantor from any of their
respective obligations under such Leases or constitute an assumption of any such
obligation on the part of the Beneficiary. No action or failure to act on the
part of the Grantor shall adversely affect or limit the rights of the
Beneficiary under this Deed of Trust or, through this Deed of Trust, under such
Leases. Nothing contained herein shall operate or be construed to (i) obligate
the Beneficiary to perform any of the terms, covenants or conditions contained
in any Lease or otherwise to impose any obligation upon the Beneficiary with
respect to such Lease (including, without limitation, any obligation arising out
of any covenant of quiet enjoyment contained in such Lease in the event that
Tenant under such Lease shall have been joined as a party defendant in any
action by which the estate of such Tenant shall be terminated) or (ii) place
upon the Beneficiary any obligation for the operation, control, care, management
or repair of the Premises.
SECTION 6.4 Irrevocable Interest. All rights, powers and
privileges of the Beneficiary herein set forth are coupled with an interest and
are irrevocable, subject to the terms and conditions hereof, and the Grantor
shall not take any action under the Leases or otherwise which is inconsistent
with this Deed of Trust or any of the terms hereof and any such action
inconsistent herewith or therewith shall be void.
SECTION 6.5 Amendment to Leases. Each Lease, including,
without limitation, all amendments, modifications, supplements, replacements,
extensions and renewals thereof, shall continue to be subject to the provisions
hereof without the necessity of any further act by any of the parties hereto.
ARTICLE VII
TAXES AND CERTAIN STATUTORY LIENS
SECTION 7.1 Payment of Charges. Unless and to the extent
contested by the Grantor in accordance with the provisions of Article IX hereof,
the Grantor shall pay and discharge, or cause to be paid and discharged, from
time to time when the same shall become due (or within any applicable grace
period) all Charges, subject to this Article VII. The Grantor shall, upon the
Beneficiary's request, deliver to the Beneficiary receipts evidencing the
payment of all such Charges.
SECTION 7.2 Escrow of Taxes. From and after the occurrence and
during the continuance of an Event of Default or a Default, at the option and
upon the request of the Beneficiary, the Grantor shall deposit with the
Beneficiary in an account maintained by the Beneficiary (the "Tax Escrow Fund"),
on the first day of each month, an amount estimated by the Beneficiary to be
equal to one-twelfth of the annual real property taxes and other annual Charges
required to be discharged by the Grantor under Section 7.1 hereof. Such amounts
shall be held by the Beneficiary without interest to the Grantor and applied to
the payment of the obligations in respect of which such amounts were deposited,
in such priority as the Beneficiary shall determine, on or before the respective
dates on which such obligations or any part thereof would become delinquent.
Nothing contained in this Article VII shall (i) affect any right or remedy of
the Beneficiary under any provision hereof or of any statute or rule of law to
pay any such amount as provided above from its own funds and to add the amount
so paid, together with interest at the Default Rate during such time that any
amount remains outstanding, to the Secured Obligations or (ii) relieve the
Grantor of its obligations to make or provide for the payment of the annual real
property taxes and other annual Charges required to be discharged by the Grantor
under Section 7.1 hereof.
SECTION 7.3 Certain Statutory Liens. Unless and to the extent
contested by the Grantor in accordance with the provisions of Article IX hereof,
the Grantor shall timely pay, or cause to be paid, all lawful claims and demands
of mechanics, materialmen, laborers, government agencies administering worker's
compensation insurance, old age pensions and social security benefits and all
other claims, judgments, demands or amounts of any nature which, if unpaid,
would result in, or permit the creation of, a Lien on the Mortgaged Property or
any part thereof, or which would result in forfeiture of all or any part of the
Mortgaged Property.
SECTION 7.4 Stamp and Other Taxes. Unless and to the extent
contested by the Grantor in accordance with the provisions of Article IX hereof,
the Grantor shall pay any United States documentary stamp taxes, with interest
and fines and penalties, and any mortgage recording taxes, with interest and
fines and penalties, that may hereafter be levied, imposed or assessed under or
upon or by reason hereof or the Secured Obligations or any instrument or
transaction affecting or relating to either thereof and in default thereof the
Beneficiary may advance the same and the amount so advanced shall be payable by
the Grantor to the Beneficiary in accordance with the provisions of Section 14.5
hereof.
SECTION 7.5 Certain Tax Law Changes. In the event of the
passage after the date hereof of any law deducting from the value of real
property, for the purpose of taxation, amounts in respect of any Lien thereon or
changing in any way the laws for the taxation of mortgages or debts secured by
mortgages for state or local purposes or the manner of the collection of any
Charges, and imposing any Charges, either directly or indirectly, on this Deed
of Trust, the Indenture or any other Collateral Document, the Grantor shall
promptly
pay to the Beneficiary such amount or amounts as may be necessary from time to
time to pay any such Charges.
SECTION 7.6 Proceeds of Tax Claim. In the event that the
proceeds of any tax claim are paid after the Beneficiary has exercised its right
to foreclose the Lien hereof, such proceeds shall be paid to the Beneficiary to
satisfy any deficiency remaining after such foreclosure. The Beneficiary shall
retain its interest in the proceeds of any tax claim during any redemption
period. The amount of any such proceeds in excess of any deficiency claim of the
Beneficiary shall in a prompt manner be released to the Grantor.
ARTICLE VIII
INSURANCE
SECTION 8.1 Required Insurance Policies and Coverages. The
Grantor shall maintain in respect of the Premises the insurance policies and
coverages required under Section 4.19(b) of the Indenture.
SECTION 8.2 Delivery After Foreclosure. In the event that the
proceeds of any insurance claim are paid after the Beneficiary has exercised its
right to foreclose the Lien hereof, such proceeds shall be paid to the
Beneficiary to satisfy any deficiency remaining after such foreclosure.
Beneficiary shall retain its interest in the Insurance Policies required to be
maintained pursuant to this Deed of Trust during any redemption period. The
amount of any such proceeds in excess of any deficiency claim of the Beneficiary
shall be released to the Grantor.
ARTICLE IX
CONTESTING OF PAYMENTS
SECTION 9.1 Contesting of Taxes and Certain Statutory Liens.
The Grantor may at its own expense contest the validity, amount or applicability
of any Charges as long as the contest thereof shall be conducted in accordance
with, and permitted pursuant to the provisions of, the Indenture.
Notwithstanding the foregoing provisions of this Section 9.1, (i) no contest of
any such obligations may be pursued by the Grantor (A) if such contest would
expose the Beneficiary or any Holder to any possible criminal liability or (B)
unless the Grantor shall have furnished a bond or other security therefor
reasonably satisfactory to the Beneficiary or such Holder, as the case may be,
any additional civil liability for failure to comply with such obligations and
(ii) if at any time payment or performance of any obligation contested by the
Grantor pursuant to this Section 9.1 shall become necessary to prevent the
imminent imposition of remedies because of non-payment, the Grantor shall pay or
perform the same in sufficient time to prevent the imposition of remedies in
respect of such default or prospective default.
SECTION 9.2 Contesting of Insurance. The Grantor shall not
take any action that would reasonably be expected to cause the termination,
revocation or denial of any insurance coverage required to be maintained under
this Deed of Trust or that would be the basis for a defense to any claim under
any Insurance Policy maintained in respect of the Premises and the Grantor shall
otherwise comply in all respects with all Insurance Requirements in respect of
the Premises; provided, however, that the Grantor may, at its own expense and
after written notice to the Beneficiary, (i) contest the applicability or
enforceability of any such Insurance Requirements by appropriate legal
proceedings, prosecution of which does not constitute a basis for cancellation
or revocation of any insurance coverage required under Article VIII hereof or
(ii) cause the Insurance Policy containing any such Insurance Requirement to be
replaced by a new policy complying with the provisions of Article VIII hereof.
ARTICLE X
DESTRUCTION, CONDEMNATION AND RESTORATION
SECTION 10.1 Destruction. If there shall occur any
Destruction, individually or in the aggregate, in excess of $100,000, the
Grantor shall promptly send to the Beneficiary a written notice setting forth
the nature and extent of such Destruction. The Proceeds of any insurance payable
in respect of such Destruction are hereby assigned and shall be paid to the
Beneficiary. The Net Loss Proceeds arising out of such Destruction, shall be
applied in accordance with the provisions of Sections 4.16, 11.02, and 10.05(c)
of the Indenture.
SECTION 10.2 Condemnation. If there shall occur any Taking or
the commencement of any proceeding thereof, the Grantor shall immediately notify
the Beneficiary upon receiving notice of such Taking or commencement of
proceedings therefor. The Beneficiary may, at its option, participate in any
proceedings or negotiations which might result in any Taking, and the Grantor
shall deliver or cause to be delivered to the Beneficiary all instruments
requested by it to permit such participation. The Beneficiary may be represented
by counsel reasonably satisfactory to it at the reasonable expense of the
Grantor in connection with any such participation. The Grantor shall pay all
reasonable fees, costs and expenses incurred by the Beneficiary in connection
with any Taking and in seeking and obtaining any award or payment on account
thereof. Any proceeds, award or payment in respect of any Taking are hereby
assigned and shall be paid to the Beneficiary. The Grantor shall take all steps
necessary to notify the condemning authority of such assignment. The Net Loss
Proceeds arising out of such Taking, shall be applied in accordance with the
provisions of Sections 4.16, 11.02, and 10.05(c) of the Indenture.
ARTICLE XI
EVENTS OF DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. It shall be an Event of
Default hereunder if there shall have occurred and be continuing an Event of
Default under the Indenture.
SECTION 11.2 Remedies in Case of an Event of Default. If any
Event of Default shall have occurred and be continuing, the Beneficiary or the
Trustee may at the Beneficiary's option, in addition to any other action
permitted under this Deed of Trust or the Indenture or by law, statute or in
equity, take one or more of the following actions to the greatest extent
permitted by local law:
(i) by written notice to the Grantor, declare the entire
unpaid amount of the Secured Obligations to be due and payable
immediately;
(ii) personally, or by its agents or attorneys, (A) enter into
and upon and take possession of all or any part of the Premises
together with the books, records and accounts of the Grantor relating
thereto and, exclude the Grantor, its agents and servants wholly
therefrom, (B) use, operate, manage and control the Premises and
conduct the business thereof, (C) maintain and restore the Premises,
(D) make all necessary or proper repairs, renewals and replacements and
such useful Alterations thereto and thereon as the Beneficiary may deem
advisable, (E) manage, lease and operate the Premises and carry on the
business thereof and exercise all rights and powers of the Grantor with
respect thereto either in the name of the Grantor or otherwise or (F)
collect and receive all Rents. The Beneficiary shall be under no
liability for or by reason of any such taking of possession, entry,
removal or holding, operation or management except that any amounts so
received by the Beneficiary shall be applied in accordance with the
provisions of the Indenture;
(iii) with or without entry, personally or by its agents or
attorneys, (A) sell the Mortgaged Property and all estate, right, title
and interest, claim and demand therein at one or more sales in one or
more parcels, in accordance with the provisions of Section 11.3 or (B)
institute and prosecute proceedings for the complete or partial
foreclosure of the Lien and security interests created and evidenced
hereby; or
(iv) take such steps to protect and enforce its rights whether
by action, suit or proceeding at law or in equity for the specific
performance of any covenant, condition or agreement in the Indenture,
the Notes and the Collateral Documents, or in aid of the execution of
any power granted in this Deed of Trust, or for any foreclosure
hereunder, or for the enforcement of any other appropriate legal or
equitable remedy or otherwise as the Beneficiary shall elect.
SECTION 11.3 Sale of Mortgaged Property if Event of Default
Occurs; Proceeds of Sale.
(i) If any Event of Default shall have occurred and be
continuing, the Beneficiary or the Trustee may institute an action to foreclose
this Deed of Trust or take such other action as may be permitted and available
to the Beneficiary at law or in equity for the enforcement of the Indenture and
the Notes and realization on the Mortgaged Property and proceeds thereon through
power of sale or to final judgment and execution thereof for the Secured
Obligations, and in furtherance thereof the Trustee may sell the Mortgaged
Property at one or more sales (to the extent permitted by law), as an entirety
or in parcels (to the extent permitted by law), at such time and place, upon
such terms and after such notice thereof as may be required or permitted by law
or statute or in equity. The Trustee may execute and deliver to the purchaser at
such sale a conveyance of the Mortgaged Property in fee simple and an assignment
or conveyance of all the Grantor's Interest in the Leases and the Mortgaged
Property, each of which conveyances and assignments shall contain recitals as to
the Event of Default upon which the execution of the power of sale herein
granted depends, and the Grantor hereby constitutes and appoints the Trustee the
true and lawful attorney-in-fact of the Grantor to make any such recitals, sale,
assignment and conveyance, and all of the acts of the Trustee as such
attorney-in-fact are hereby ratified and confirmed. The Grantor agrees that such
recitals shall be binding and conclusive upon the Grantor and that any
assignment or conveyance to be made by the Trustee shall divest the Grantor of
all right, title, interest, equity and right of redemption, including any
statutory redemption, in and to the Mortgaged Property. The power and agency
hereby granted are coupled with an interest and are irrevocable by death or
dissolution, or otherwise, and are in addition to any and all other remedies
which the Beneficiary or the Trustee may have hereunder, at law or in equity. So
long as the Secured Obligations, or any part thereof, remain unpaid, the Grantor
agrees that possession of the Mortgaged Property by the Grantor, or any person
claiming under the Grantor, shall be as tenant, and, in case of a sale under
power or upon foreclosure as provided in this Deed of Trust, the Grantor and any
person in possession under the Grantor, as to whose interest such sale was not
made subject, shall, at the option of the purchaser at such sale, then become
and be tenants holding over, and shall forthwith deliver possession to such
purchaser, or be summarily dispossessed in accordance with the laws applicable
to tenants holding over. In case of any sale under this Deed of Trust by virtue
of the exercise of the powers herein granted, or pursuant to any order in any
judicial proceeding or otherwise, the Mortgaged Property may be sold as an
entirety or in separate parcels in such manner or order as the Beneficiary or
the Trustee in its sole discretion may elect. One or more exercises of powers
herein granted shall not extinguish or exhaust such powers, until the entire
Mortgaged Property is sold or all amounts secured hereby are paid in full.
(ii) In the event of any sale made under or by virtue of this
Article XI, the entire principal of, and interest in respect of the Secured
Obligations, if not previously due and payable, shall, at the option of the
Beneficiary, immediately become due and payable, anything in this Deed of Trust
to the contrary notwithstanding.
(iii) To the extent not inconsistent with the provisions of
Section 55-59.4.A.3 of the Code of Virginia of 1950, as amended, the Proceeds of
any sale made under or by virtue of this Article XI, together
with any other sums which then may be held by the Beneficiary or the Trustee
under this Deed of Trust, whether under the provisions of this Article XI or
otherwise, shall be applied in accordance with the provisions of the Indenture.
(iv) The Beneficiary may bid for and acquire the Mortgaged
Property or any part thereof at any sale made under or by virtue of this Article
XI and, in lieu of paying cash therefor, may make settlement for the purchase
price by crediting against the purchase price the unpaid amounts (whether or not
then due and owing) in respect of the Secured Obligations, after deducting from
the sales price the expense of the sale and the reasonable costs of the action
or proceedings and any other sums that the Beneficiary is authorized to deduct
under this Deed of Trust.
(v) The Beneficiary or the Trustee may adjourn from time to
time any sale by it to be made under or by virtue hereof by announcement at the
time and place appointed for such sale or for such adjourned sale or sales, and,
the Beneficiary or the Trustee, without further notice or publication, may make
such sale at the time and place to which the same shall be so adjourned.
(vi) If the Premises is comprised of more than one parcel of
land, the Beneficiary or the Trustee may take any of the actions authorized by
this Section 11.3 in respect of any or a number of individual parcels.
SECTION 11.4 Additional Remedies in Case of an Event of
Default.
(i) The Beneficiary shall be entitled to recover judgment as
aforesaid either before, after or during the pendency of any proceedings for the
enforcement of the provisions hereof, and the right of the Beneficiary to
recover such judgment shall not be affected by any entry or sale hereunder, or
by the exercise of any other right, power or remedy for the enforcement of the
provisions hereof, or the foreclosure of, or absolute conveyance pursuant to,
this Deed of Trust. In case of proceedings against the Grantor in insolvency or
bankruptcy or any proceedings for its reorganization or involving the
liquidation of its assets, the Beneficiary shall be entitled to prove the whole
amount of principal and interest and other payments, charges and costs due in
respect of the Secured Obligations to the full amount thereof without deducting
therefrom any proceeds obtained from the sale of the whole or any part of the
Mortgaged Property; provided, however, that in no case shall the Beneficiary
receive a greater amount than the aggregate of such principal, interest and such
other payments, charges and costs (with interest at the Default Rate) from the
proceeds of the sale of the Mortgaged Property and the distribution from the
estate of the Grantor.
(ii) Any recovery of any judgment by the Beneficiary and any
levy of any execution under any judgment upon the Mortgaged Property shall not
affect in any manner or to any extent the Lien and security interests created
and evidenced hereby upon the Mortgaged Property or any part thereof, or any
conveyances, powers, rights and remedies of the Beneficiary hereunder, but such
conveyances, powers, rights and remedies shall continue unimpaired as before.
(iii) Any monies collected by the Beneficiary under this Section
11.4 shall be applied in accordance with the provisions of Section 11.3(iii).
SECTION 11.5 Legal Proceedings After an Event of Default.
(i) After the occurrence and during the continuance of any
Event of Default and immediately upon the commencement of any action, suit or
legal proceedings to obtain judgment for the Secured Obligations or any part
thereof, or of any proceedings to foreclose the Lien and security interest
created and evidenced hereby or otherwise enforce the provisions hereof or of
any other proceedings in aid of the enforcement hereof, the Grantor shall enter
its voluntary appearance in such action, suit or proceeding.
(ii) To the extent permitted by law, upon the occurrence and
during the continuance of an Event of Default, the Beneficiary shall be entitled
forthwith as a matter of right, concurrently or independently of any other right
or remedy hereunder either before or after declaring the Secured Obligations or
any part thereof to be due and payable, to the appointment of a receiver without
giving notice to any party and without regard to the adequacy or inadequacy of
any security for the Secured Obligations or the solvency or insolvency of any
person or entity then legally or equitably liable for the Secured Obligations or
any portion thereof. The Grantor hereby consents to the appointment of such
receiver. Notwithstanding the appointment of any receiver, the Beneficiary shall
be entitled as pledgee to the possession and control of any cash, deposits or
instruments at the time held by or payable or deliverable under the terms of the
Indenture to the Beneficiary.
(iii) The Grantor shall not (A) at any time insist upon, or
plead, or in any manner whatsoever claim or take any benefit or advantage of any
stay or extension or moratorium law, any exemption from execution or sale of the
Mortgaged Property or any part thereof, wherever enacted, now or at any time
hereafter in force, which may affect the covenants and terms of performance
hereof, (B) claim, take or insist on any benefit or advantage of any law now or
hereafter in force providing for the valuation or appraisal of the Mortgaged
Property, or any part thereof, prior to any sale or sales of the Mortgaged
Property which may be made pursuant to this Deed of Trust, or pursuant to any
decree, judgment or order of any court of competent jurisdiction or (C) after
any such sale or sales, claim or exercise any right under any statute heretofore
or hereafter enacted to redeem the property so sold or any part thereof. To the
extent permitted by applicable law, the Grantor hereby expressly (A) waives all
benefit or advantage of any such law or laws, including, without limitation, any
statute of limitations applicable to this Deed of Trust, (B) waives all rights
to have the Mortgaged Property marshalled on any foreclosure of this Deed of
Trust, (C) waives any and all rights to trial by jury in any action or
proceeding related to the enforcement hereof, (D) waives any objection which it
may now or hereafter have to the laying of venue of any action, suit or
proceeding brought in connection with this Deed of Trust and further waives and
agrees not to plead that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum and (E) covenants not to hinder,
delay or impede the execution of any power granted or delegated to the
Beneficiary by this Deed of Trust but to suffer and permit the execution of
every such power as though no such law or laws had been made or enacted. The
Beneficiary shall not be liable for any incorrect or improper payment made
pursuant to this Article XI in the absence of gross negligence or willful
misconduct.
SECTION 11.6 Remedies Not Exclusive. No remedy conferred upon or
reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of
any other remedy or remedies, and each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Deed of Trust or
now or hereafter existing at law or in equity. Any delay or omission of the
Beneficiary to exercise any right or power accruing on any Event of Default
shall not impair any such right or power and shall not be construed to be a
waiver of or acquiescence in any such Event of Default. Every power and remedy
given by this Deed of Trust may be exercised from time to time concurrently or
independently, when and as often as may be deemed expedient by the Beneficiary
in such order and manner as the Beneficiary, in its sole discretion, may elect.
If the Beneficiary accepts any monies required to be paid by the Grantor under
this Deed of Trust after the same become due, such acceptance shall not
constitute a waiver of the right either to require prompt payment, when due, of
all other sums secured by this Deed of Trust or to declare an Event of Default
with regard to subsequent defaults. If the Beneficiary accepts any monies
required to be paid by the Grantor under this Deed of Trust in an amount less
than the sum then due, such acceptance shall be deemed an acceptance on account
only and on the condition that it shall not constitute a waiver of the
obligation of the Grantor to pay the entire sum then due, and the Grantor's
failure to pay the entire sum then due shall be and continue to be a default
hereunder notwithstanding acceptance of such amount on account.
ARTICLE XII
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 12.1 Security Agreement. To the extent that the
Mortgaged Property includes personal property or items of personal property
which are or are to become fixtures under applicable law, this Deed of Trust
shall also be construed as a security agreement under the UCC; and, upon and
during the continuance of an Event of Default, the Beneficiary shall be entitled
with respect to such personal property to exercise all remedies hereunder, all
remedies available under the UCC with respect to fixtures and all other remedies
available under applicable law. Without limiting the foregoing, such personal
property may, at the Beneficiary's option and upon and during the continuance of
an Event of Default, (i) be sold hereunder together with any sale of any portion
of the Mortgaged Property or otherwise, (ii) be sold pursuant to the UCC, or
(iii) be dealt with by the Beneficiary in any other manner permitted under
applicable law. The Beneficiary may require the Grantor to assemble such
personal property and make it available to the Beneficiary at a place to be
designated by the Beneficiary. The Grantor acknowledges and agrees that a
disposition of the personal property in accordance with the Beneficiary's rights
and remedies in respect to the Mortgaged Property as heretofore provided is a
commercially reasonable disposition thereof; provided, however, that the
Beneficiary shall give the Grantor not less than ten (10) days' prior notice of
the time and place of any intended disposition.
SECTION 12.2 Fixture Filing. To the extent that the Mortgaged
Property includes items of personal property which are or are to become fixtures
under applicable law, and to the extent permitted under applicable law, the
filing hereof in the real estate records of the county in which such Mortgaged
Property is located shall also operate from the time of filing as a fixture
filing with respect to such Mortgaged Property, and the following information is
applicable for the purpose of such fixture filing, to wit:
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Name and Address of the debtor: Name and Address of the secured party:
The Grantor having the address The Beneficiary having the address
described in the Preamble hereof. described in the Preamble hereof.
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This Financing Statement covers the following types or items of property:
The Mortgaged Property.
This instrument covers goods or items of personal property which are or
are to become fixtures upon the real property described in Schedule A
attached hereto.
The name of the record owner of the Property on which such fixtures are or
are to be located is the Grantor.
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ARTICLE XIII
FURTHER ASSURANCES
SECTION 13.1 Recording Documentation To Assure Security. The
Grantor shall, forthwith after the execution and delivery hereof and thereafter,
from time to time, cause this Deed of Trust and any financing statement,
continuation statement or similar instrument relating to any thereof or to any
property intended to be subject to the Lien hereof to be filed, registered and
recorded in such manner and in such places as may be required by any present or
future law in order to publish notice of and fully to protect the validity
and priority thereof or the Lien hereof purported to be created upon the
Mortgaged Property and the interest and rights of the Beneficiary therein. The
Grantor shall pay or cause to be paid all taxes and fees incident to such
filing, registration and recording, and all reasonable expenses incident to the
preparation, execution and acknowledgment thereof, and of any instrument of
further assurance, and all Federal or state stamp taxes or other taxes, duties
and charges arising out of or in connection with the execution and delivery of
such instruments.
SECTION 13.2 Further Acts. The Grantor shall, at the sole cost
and expense of the Grantor, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, transfers, financing statements, continuation statements,
instruments and assurances as the Beneficiary shall from time to time reasonably
request, which may be necessary in the judgment of the Beneficiary from time to
time to assure, perfect, convey, assign, mortgage, transfer and confirm unto the
Beneficiary, the property and rights hereby conveyed or assigned or which the
Grantor may be or may hereafter become bound to convey or assign to the
Beneficiary or for carrying out the intention or facilitating the performance of
the terms hereof or the filing, registering or recording hereof. Without
limiting the generality of the foregoing, in the event that the Beneficiary
desires to exercise any remedies, consensual rights or attorney-in-fact powers
set forth in this Deed of Trust and determines it necessary to obtain any
approvals or consents of any Governmental Authority or any other Person
therefor, then, upon the reasonable request of the Beneficiary, the Grantor
agrees to use its reasonable efforts to assist and aid the Beneficiary to obtain
as soon as practicable any necessary approvals or consents for the exercise of
any such remedies, rights and powers. In the event the Grantor shall fail (i)
within ten (10) Business Days after demand, to execute or take any action
required to be executed or taken by the Grantor under this Section 13.2 to the
extent same is necessary to maintain perfection of the Lien granted to
Beneficiary hereunder or (ii) such failure shall constitute an Event of Default,
to execute or take any action required to be executed or taken by the Grantor
under this Section 13.2 (other than the type described in clause (i) of this
sentence) then, in each of the cases described in clauses (i) and (ii) of this
sentence, the Beneficiary may execute or take the same as the attorney-in-fact
for the Grantor, such power of attorney being coupled with an interest and is
irrevocable.
SECTION 13.3 Additional Security. Without notice to or consent
of the Grantor and without impairment of the Lien and rights created by this
Deed of Trust, the Beneficiary may accept (but the Grantor shall not be
obligated to furnish) from the Grantor or from any other Person, additional
security for the Secured Obligations. Neither the giving hereof nor the
acceptance of any such additional security shall prevent the Beneficiary from
resorting, first, to such additional security, and, second, to the security
created by this Deed of Trust without affecting the Beneficiary's Lien and
rights under this Deed of Trust.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Covenants To Run with the Land. All of the
grants, covenants, terms, provisions and conditions in this Deed of Trust shall
run with the Land and shall apply to, and bind the successors and assigns of,
the Grantor. If there shall be more than one grantor with respect to the
Mortgaged Property, the covenants and warranties hereof shall be joint and
several.
SECTION 14.2 No Merger. The rights and estate created by this
Deed of Trust shall not, under any circumstances, be held to have merged into
any other estate or interest now owned or hereafter acquired by the Beneficiary
unless the Beneficiary shall have consented to such merger in writing, such
consent not to be unreasonably withheld.
SECTION 14.3 Concerning Beneficiary and Trustee.
(i) The Beneficiary has been appointed as trustee pursuant to
the Indenture. The actions of the Beneficiary hereunder are subject to the
provisions of the Indenture. The Beneficiary shall have the right hereunder to
make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking action (including, without
limitation, the release or substitution of the Mortgaged Property), in
accordance with this Deed of Trust and the Indenture. The Beneficiary may employ
agents and attorneys-in-fact in connection herewith and shall not be liable for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it in good faith. The Beneficiary may resign and a successor Beneficiary may be
appointed in the manner provided in the Indenture. Upon the acceptance of any
appointment as the Beneficiary by a successor Beneficiary, that successor
Beneficiary shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Beneficiary under this Deed of
Trust, and the retiring Beneficiary shall thereupon be discharged from its
duties and obligations under this Deed of Trust. After any retiring
Beneficiary's resignation, the provisions hereof shall inure to its benefit as
to any actions taken or omitted to be taken by it under this Deed of Trust while
it was the Beneficiary.
(ii) The Beneficiary shall be deemed to have exercised
reasonable care in the custody and preservation of the Mortgaged Property in its
possession if such Mortgaged Property is accorded treatment substantially
equivalent to that which the Beneficiary, in its individual capacity, accords
its own property consisting of similar instruments or interests, it being
understood that neither the Beneficiary nor any of the Secured Parties shall
have responsibility for taking any necessary steps to preserve rights against
any Person with respect to any Mortgaged Property.
(iii) The Beneficiary shall be entitled to rely upon any written
notice, statement, certificate, order or other document or any telephone message
believed by it to be genuine and correct and to have been signed, sent or made
by the proper person, and, with respect to all matters pertaining to this Deed
of Trust and its duties hereunder, upon advice of counsel selected by it.
(iv) If any portion of the Mortgaged Property also constitutes
collateral granted to the Beneficiary under any other deed of trust, mortgage,
security agreement, pledge or instrument of any type, in the event of any
conflict between the provisions hereof and the provisions of such other deed of
trust, mortgage, security agreement, pledge or instrument of any type in respect
of such collateral, the Beneficiary, in its sole discretion, shall select which
provision or provisions shall control.
SECTION 14.4 Beneficiary May Perform; Beneficiary Appointed
Attorney-in-Fact. If the Grantor shall fail to perform any covenants contained
in this Deed of Trust, subject to any applicable grace periods or contest rights
permitted pursuant to Article IX hereof or as otherwise permitted by any
Collateral Document (including, without limitation, the Grantor's covenants to
(i) pay the premiums in respect of all required insurance policies hereunder,
(ii) pay Charges, (iii) make repairs, (iv) discharge Liens or (v) pay or perform
any obligations of the Grantor under any Mortgaged Property) or if any warranty
on the part of the Grantor contained herein shall be breached, the Beneficiary
may (but shall not be obligated to) do the same or cause it to be done or remedy
any such breach, and may expend funds for such purpose; provided, however, that
the Beneficiary shall in no event be bound to inquire into the validity of any
tax, Lien, imposition or other obligation which the Grantor fails to pay or
perform as and when required hereby and which the Grantor does not contest in
accordance with the provisions of Article IX hereof. Any and all amounts
reasonably so expended by the Beneficiary shall be paid by the Grantor in
accordance with the provisions of Section 14.5 hereof. Neither the provisions of
this Section 14.4 nor any action taken by the Beneficiary pursuant to the
provisions of this Section 14.4 shall prevent any such failure to observe any
covenant contained in this Deed of Trust nor any breach of warranty from
constituting an Event of Default. Upon the occurrence and during the continuance
of an Event of Default the Grantor hereby appoints the Beneficiary its
attorney-in-fact, with full authority in the place and stead of the Grantor and
in the name of the Grantor to take any action and to execute any instrument
consistent with the terms hereof and the other Collateral Documents which the
Beneficiary may
deem necessary or advisable to accomplish the purposes hereof. The foregoing
grant of authority is a power of attorney coupled with an interest and such
appointment shall be irrevocable for the term hereof. The Grantor hereby
ratifies all that such attorney shall lawfully do or cause to be done by virtue
hereof.
SECTION 14.5 Expenses The Grantor will upon demand pay to the
Beneficiary the amount of any and all reasonable costs and expenses, including
the reasonable fees and expenses of its counsel and the reasonable fees and
expenses of any experts and agents which the Beneficiary may incur in connection
with (i) any action, suit or other proceeding affecting the Mortgaged Property
or any part thereof commenced, in which action, suit or proceeding the
Beneficiary is made a party or participates or in which the right to use the
Mortgaged Property or any part thereof is threatened, or in which it becomes
necessary in the judgment of the Beneficiary to defend or uphold the Lien hereof
(including, without limitation, any action, suit or proceeding to establish or
uphold the compliance of the Mortgaged Property with any Requirements of Law),
(ii) the collection of the Secured Obligations, (iii) the enforcement and
administration hereof, (iv) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Mortgaged Property, (v)
the exercise or enforcement of any of the rights of the Beneficiary or any
Secured Party hereunder or (vi) the failure by the Grantor to perform or observe
any of the provisions hereof. All amounts expended by the Beneficiary and
payable by the Grantor under this Section 14.5 shall be due upon demand therefor
(together with interest thereon accruing at the Default Rate during the period
from and including the date on which such funds were so expended to the date of
repayment) and shall be part of the Secured Obligations. The Grantor's
obligations under this Section 14.5 shall survive the termination hereof and the
discharge of the Grantor's other obligations under this Deed of Trust.
SECTION 14.6 Indemnity.
(i) The Grantor agrees to indemnify, pay and hold harmless the
Beneficiary, the Trustee and each of the other Secured Parties and the officers,
directors, employees, agents and Affiliates of the Beneficiary, the Trustee and
each of the other Secured Parties (collectively, the "Indemnitees") from and
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs (including, without limitation,
settlement costs), expenses or disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, commenced or threatened, whether or not such Indemnitee
shall be designated a party thereto), which may be imposed on, incurred by or
asserted against that Indemnitee, in any manner relating to or arising out
hereof, the Indenture, the Notes, any other Collateral Document or any other
document evidencing the Secured Obligations (including, without limitation, any
misrepresentation by the Grantor in this Deed of Trust, the Indenture, the
Notes, any other Collateral Document or any other document evidencing the
Secured Obligations (the "Indemnified Liabilities"); provided, however, that the
Grantor shall have no obligation to an Indemnitee hereunder with respect to
Indemnified Liabilities to the extent it has been determined by a final decision
(after all appeals and the expiration of time to appeal) by a court of competent
jurisdiction that such Indemnified Liabilities arose from the gross negligence
or willful misconduct of that Indemnitee. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Grantor
shall contribute the maximum portion which it is permitted to pay and satisfy
under applicable law, to the payment and satisfaction of all Indemnified
Liabilities incurred by the Indemnitees or any of them.
(ii) Survival. The obligations of the Grantor contained in this
Section 14.6 shall survive the termination hereof and the discharge of the
Grantor's other obligations under this Deed of Trust, the Indenture and the
other Collateral Documents.
(iii) Reimbursement. Any amount paid by any Indemnitee as to
which such Indemnitee has the right to reimbursement shall constitute Secured
Obligations secured by the Mortgaged Property.
SECTION 14.7 Continuing Security Interest; Assignment. This
Deed of Trust shall create a continuing Lien on and security interest in the
Mortgaged Property and shall (i) be binding upon the Grantor, its respective
successors and assigns and (ii) inure, together with the rights and remedies of
the Beneficiary and the Trustee hereunder, to the benefit of the Beneficiary and
the Trustee and the other Secured Parties and each of their respective
successors, transferees and assigns. No other Persons (including, without
limitation, any other creditor of Grantor) shall have any interest herein or any
right or benefit with respect hereto. Without limiting the generality of the
foregoing clause (ii), any Holder of the Notes may assign or otherwise transfer
any indebtedness held by it secured by this Deed of Trust to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Holder, herein or otherwise, subject however, to
the provisions of the Indenture.
SECTION 14.8 Termination; Release. The Mortgaged Property
shall be released from the Lien of this Deed of Trust in accordance with the
provisions of Article 10 of the Indenture.
SECTION 14.9 Modification in Writing. No amendment,
modification, supplement, termination or waiver of or to any provision hereof,
nor consent to any departure by the Grantor therefrom, shall be effective unless
the same shall be done in accordance with the terms of the Indenture and unless
in writing and signed by the Beneficiary and Grantor. Any amendment,
modification or supplement of or to any provision hereof, any waiver of any
provision hereof and any consent to any departure by the Grantor from the terms
of any provision hereof shall be effective only in the specific instance and for
the specific purpose for which made or given. Except where notice is
specifically required by this Deed of Trust or any other Collateral Document, no
notice to or demand on the Grantor in any case shall entitle the Grantor to any
other or further notice or demand in similar or other circumstances.
SECTION 14.10 Notices. Unless otherwise provided herein or in
the Indenture, any notice or other communication herein required or permitted to
be given shall be given in the manner and become effective as set forth in the
Indenture, if to the Grantor, addressed to it at the address of the Issuer set
forth in the Indenture, and as to the Beneficiary, addressed to it at its
address set forth in the Indenture, and as to the Trustee, addressed to it at
the address set forth in the Preamble hereof, or in each case at such other
address as shall be designated by such party in a written notice to the other
party complying as to delivery with the terms of this Section 14.10.
SECTION 14.11 GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF
JURY TRIAL. THIS DEED OF TRUST SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE IN WHICH THE PREMISES ARE
LOCATED, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT TO THE EXTENT
THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR ITEM OR TYPE OF MORTGAGED PROPERTY ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE. GRANTOR AGREES
THAT SERVICE OF PROCESS IN ANY PROCEEDING MAY BE EFFECTED BY MAILING A COPY
THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF
MAIL), POSTAGE PREPAID, TO THE ISSUER AT ITS ADDRESS SET FORTH IN THE INDENTURE
OR AT SUCH OTHER ADDRESS OF WHICH THE BENEFICIARY SHALL HAVE BEEN NOTIFIED
PURSUANT THERETO. IF ANY AGENT APPOINTED BY GRANTOR REFUSES TO ACCEPT SERVICE,
GRANTOR HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT
NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF BENEFICIARY TO BRING
PROCEEDINGS AGAINST GRANTOR IN THE COURTS OF ANY OTHER JURISDICTION. THE GRANTOR
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS DEED OF TRUST OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 14.12 Severability of Provisions. Any provision hereof
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 14.13 Limitation on Interest Payable. It is the
intention of the parties to conform strictly to the usury laws, whether state or
Federal, that are applicable to the transaction of which this Deed of Trust is a
part. All agreements between the Grantor and the Beneficiary, whether now
existing or hereafter arising and whether oral or written, are hereby expressly
limited so that in no contingency or event whatsoever shall the amount paid or
agreed to be paid by the Grantor for the use, forbearance or detention of the
money to be loaned or advanced under the Indenture or any related document or
for the payment or performance of any covenant or obligation contained herein or
in the Indenture or any related document exceed the maximum amount permissible
under applicable Federal or state usury laws. If under any circumstances
whatsoever fulfillment of any such provision, at the time performance of such
provision shall be due, shall involve exceeding the limit of validity prescribed
by law, then the obligation to be fulfilled shall be reduced to the limit of
such validity. If under any circumstances the Grantor shall have paid an amount
deemed interest by applicable law, which would exceed the highest lawful rate,
such amount that would be excessive interest under applicable usury laws shall
be applied to the reduction of the principal amount owing in respect of the
Secured Obligations and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal and any other amounts due
hereunder, the excess shall be refunded to the Grantor. All sums paid or agreed
to be paid for the use, forbearance or detention of the principal under any
extension of credit by the Beneficiary shall, to the extent permitted by
applicable law, and to the extent necessary to preclude exceeding the limit of
validity prescribed by law, be amortized, prorated, allocated and spread from
the date hereof until payment in full of the Secured Obligations so that the
actual rate of interest on account of such principal amounts is uniform
throughout the term hereof.
SECTION 14.14 Business Days. In the event any time period or
any date provided in this Deed of Trust ends or falls on a day other than a
Business Day, then such time period shall be deemed to end and such date shall
be deemed to fall on the next succeeding Business Day, and performance herein
may be made on such Business Day, with the same force and effect as if made on
such other day.
SECTION 14.15 Relationship. The relationship of the
Beneficiary to the Grantor hereunder is strictly and solely that of lender and
borrower and grantor and beneficiary and nothing contained in the Indenture, the
Notes, this Deed of Trust or any other document or instrument now existing and
delivered in connection therewith or otherwise in connection with the Secured
Obligations is intended to create, or shall in any event or under any
circumstance be construed as creating a partnership, joint venture,
tenancy-in-common, joint tenancy or other relationship of any nature whatsoever
between the Beneficiary and the Grantor other than as lender and borrower and
grantor and beneficiary.
SECTION 14.16 Waiver of Stay.
(i) The Grantor agrees that in the event that the Grantor or
any property or assets of the Grantor shall hereafter become the subject of a
voluntary or involuntary proceeding under the Bankruptcy Code or the Grantor
shall otherwise be a party to any Federal or state bankruptcy, insolvency,
moratorium or similar proceeding to which the provisions relating to the
automatic stay under Section 362 of the Bankruptcy Code or any similar provision
in any such law is applicable, then, in any such case, whether or not the
Beneficiary has commenced foreclosure proceedings under this Deed of Trust, the
Beneficiary shall be entitled to relief from any such automatic stay as it
relates to the exercise of any of the rights and remedies (including, without
limitation, any foreclosure proceedings) available to the Beneficiary as
provided in this Deed of Trust, in any other Collateral Document or any other
document evidencing the Secured Obligations.
(ii) The Beneficiary shall have the right to petition or move
any court having jurisdiction over any proceeding described in Section 14.16(i)
hereof for the purposes provided therein, and the Grantor agrees (i) not to
oppose any such petition or motion and (ii) at the Grantor's sole cost and
expense, to assist and cooperate with the Beneficiary, as may be requested by
the Beneficiary from time to time, in obtaining any relief requested by the
Beneficiary, including, without limitation, by filing any such petitions,
supplemental petitions, requests for relief, documents, instruments or other
items from time to time requested by the Beneficiary or any such court.
SECTION 14.17 No Credit for Payment of Taxes or Impositions.
The Grantor shall not be entitled to any credit against the principal, premium,
if any, or interest payable under the Indenture or the Notes, and the Grantor
shall not be entitled to any credit against any other sums which may become
payable under the terms thereof or hereof, by reason of the payment of any
Charge on the Mortgaged Property or any part thereof.
SECTION 14.18 No Claims Against the Beneficiary. Nothing
contained in this Deed of Trust shall constitute any consent or request by the
Beneficiary, express or implied, for the performance of any labor or services or
the furnishing of any materials or other property in respect of the Premises or
any part thereof, nor as giving the Grantor any right, power or authority to
contract for or permit the performance of any labor or services or the
furnishing of any materials or other property in such fashion as would permit
the making of any claim against the Beneficiary in respect thereof or any claim
that any Lien based on the performance of such labor or services or the
furnishing of any such materials or other property is prior to the Lien hereof.
SECTION 14.19 Obligations Absolute. All obligations of the
Grantor hereunder shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of the Grantor, the
Issuer or any other Guarantor;
(ii) any lack of validity or enforceability of the Indenture,
the Notes or any other agreement or instrument relating thereto;
(iii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Indenture, the Notes or any other agreement or instrument relating
thereto;
(iv) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to any
departure from any guarantee, for all or any of the Secured
Obligations;
(v) any exercise or non-exercise, or any waiver of any
right, remedy, power or privilege under or in respect hereof, the
Indenture, the Notes or any agreement or instrument relating thereto
except as specifically set forth in a waiver granted pursuant to the
provisions of Section 14.9 hereof; or
(vi) any other circumstances which might otherwise constitute
a defense available to, or a discharge of, the Grantor.
SECTION 14.20 Last Dollars Secured. This Deed of Trust secures
only a portion of the Indebtedness owing or which may become owing by the
Grantor. The parties agree that any payments or repayments of such Indebtedness
by the Grantor shall be and be deemed to be applied first to the portion of the
Indebtedness that is not secured hereby, it being the parties' intent that the
portion of the Indebtedness last remaining unpaid shall be secured hereby.
SECTION 14.21 Trustee Provisions.
(a) 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 Trustee's opinion, such action would be likely to
involve Trustee in expense or liability, unless requested so to do by a written
instrument signed by Beneficiary and, if Trustee so requests, unless Trustee is
tendered security and indemnity satisfactory to Trustee against any and all
cost, expense, and liability arising therefrom. Trustee shall not be responsible
for the execution, acknowledgment, or validity of this Deed of Trust, or for the
proper authorization thereof, or for the sufficiency of the lien and security
interest purported to be created hereby, and Trustee makes no representation in
respect thereof or in respect of the rights, remedies, and recourses of
Beneficiary.
(b) Certain Rights. With the approval of Beneficiary,
Trustee shall have the right to take any and all of the following actions: (i)
to select, employ, and advise with counsel (who may be, but need not be, counsel
for Beneficiary) upon any matters arising hereunder, including the preparation,
execution, and interpretation of this Deed of Trust, and shall be fully
protected in relying as to legal matters on the advice of counsel, (ii) to
execute any of the trusts and powers hereof and to perform any duty hereunder
either directly or through her agents or attorneys, (iii) to select and employ,
in and about the execution of Trustee's 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, negligence, or misconduct of any such
accountant, engineer or other expert, agent or attorney-in-fact, if selected
with reasonable care, or for any error of judgment or act done by Trustee in
good faith, or be otherwise responsible or accountable under any circumstances
whatsoever, except for Trustee's gross negligence or bad faith, and (iv) any and
all other lawful action as Beneficiary may instruct Trustee to take to protect
or enforce Beneficiary's rights hereunder. Trustee shall not be personally
liable in case of entry by Trustee, or anyone entering by virtue of the powers
herein granted to Trustee, upon the Mortgaged Property for debts contracted for
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
Trustee hereunder, believed by Trustee in good faith to be genuine. Trustee
shall be entitled to reimbursement for reasonable expenses incurred by Trustee
in the performance of Trustee's duties hereunder and to reasonable compensation
for such of Trustee's 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 Trustee harmless against, any and all liability
and reasonable expenses which may be incurred by Trustee in the performance of
Trustee's duties hereunder.
(c) Substitution of Trustee. Subject to the restrictions
regarding the substitution of trustees in the Indenture, if, for any reason,
with or without cause, the Beneficiary shall elect to substitute for the trustee
herein named (or for any successor to said trustee), the Beneficiary shall have
the right to appoint successor Trustee(s) by duly acknowledged written
instruments, and each new Trustee immediately upon recordation of the instrument
so appointing him shall become successor in title to the Premises for the uses
and purposes of this Deed of Trust, with all the powers, duties and obligations
conferred on the Trustee in the same manner and to the same effect as though he
were named herein as the Trustee.
(d) Successor Trustees. Trustee may resign by the giving of
notice of such resignation in writing or verbally to Beneficiary. If Trustee
shall die, resign, or become disqualified from acting in the execution of this
trust, or if, for any reason, Beneficiary shall prefer to appoint a substitute
trustee or multiple substitute trustees, or successive substitute trustees or
successive multiple substitute trustees, to act instead of the aforenamed
Trustee, Beneficiary shall have full power to appoint a substitute trustee (or,
if preferred, multiple substitute trustees) in succession who shall succeed (and
if multiple substitute trustees are appointed,
each of such multiple substitute trustees shall succeed) to all the estates,
rights, powers, and duties of the aforenamed Trustee. Such appointment may be
executed by any authorized agent of Beneficiary, and if such Beneficiary be a
corporation and such appointment be 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. Grantor
hereby ratifies and confirms any and all acts which the aforenamed Trustee, or
her successor or successors in this trust, shall do lawfully by virtue hereof.
If multiple substitute Trustees are appointed, each of such multiple substitute
Trustees shall be empowered and authorized to act alone without the necessity of
the joinder of the other multiple substitute trustees, whenever any action or
undertaking of such substitute trustees is requested or required under or
pursuant to this Deed of Trust or applicable law.
(e) Perfection of Appointment. Should any deed, conveyance,
or instrument of any nature be required from Grantor by any Trustee or
substitute Trustee to more fully and certainly vest in and confirm to the
Trustee or substitute Trustee such estates, rights, powers, and duties, then,
upon request by the Trustee or substitute 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.
(f) Succession Instruments. Any substitute 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 or his 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 substitute Trustee, the Trustee ceasing to act
shall execute and deliver any instrument transferring to such substitute
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
substitute Trustee so appointed in the Trustee's place.
(g) No Representation by Trustee or Beneficiary. By accepting
or approving anything required to be observed, performed, or fulfilled or to be
given to Trustee or Beneficiary pursuant to the Collateral Documents, including
without limitation, 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 or
affirmation with respect thereto by Trustee or Beneficiary.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
S-1
IN WITNESS WHEREOF, the Grantor has caused this Deed of Trust
to be duly executed and delivered under seal the day and year first above
written.
COLONIAL DOWNS HOLDINGS, INC.,
Grantor
By: /s/ Ian M. Stewart
---------------------------------
Name: Ian M. Stewart
Title: President
ACKNOWLEDGMENT
COMMONWEALTH OF VIRGINIA)
) ss.:
City Of Richmond )
The foregoing document was acknowledged before me this 14th day of
June, 2002 by Ian M. Stewart, President of Colonial Downs Holdings, Inc. on
behalf of the corporation.
My commission expires: 9-30-03
/s/ Brenda W. Holmes
----------------------------------------
Notary Public
Schedule A
SCHEDULE A to EXHIBIT 1
Description of Real Property
ALL that certain tract or parcel of land lying and being in Cumberland District,
New Kent County, Virginia, containing 345.000 acres, more or less, as depicted
on a "Plat of a Parcel of Land Lying South of I-64, Cumberland District, New
Kent County", dated March 18, 1997, made by Resource International, Ltd., signed
by Howard B. Weatherford, III, Land Surveyor, a true copy of which is attached
to and recorded with that certain deed of trust in Deed Book 242, page 277, and
which is incorporated herein by reference for a complete and accurate
description of the land conveyed hereby.
TOGETHER WITH a non-exclusive easement of right of way typically 60 feet in
width over, under and across the "60' Ingress/Egress Easement" as depicted on
the aforesaid plat for the purpose of ingress to and egress from the subject
land and State Route 155, as well as the placement of utilities to serve the
subject land.
BEING the same property conveyed to Colonial Downs Holdings, Inc., a Virginia
Corporation, by deed from Chesapeake Forest Products Company, a Virginia
corporation, dated March 19, 1997, recorded March 20, 1997, in the Clerk's
Office, Circuit Court, New Kent County, Virginia, in Deed Book 241, page 453.
Schedule B
Prior Liens
1. Each of the liens and other encumbrances excepted as being prior to the
Lien hereof as set forth in Schedule B-1 to the marked title insurance
commitment issued by Lawyers Title Insurance Corporation, dated as of the
date hereof and delivered to the Beneficiary on the date hereof, bearing
Lawyers Title Insurance Corporation Case No. 020637 relating to the real
property described in Schedule A attached hereto.
2. Zoning and building ordinances and regulations, to the extent they
constitute Permitted Liens of the type described in clause (4) of the
definition thereof.
Schedule C
Leases Affecting the Mortgaged Property
Lease dated March 21, 1997 between Colonial Downs Holdings, Inc., as
landlord and Colonial Downs, L.P. as lessee.
Exhibit 1
FORM OF SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(the "Agreement") is made and entered into as of the ____ day of _______, ____
by and between ________________________________, as trustee, having an office at
_________________ (in such capacity, "Trustee"), and _____________________,
having an office at __________________________ ("Tenant").
RECITALS:
A. Tenant is the tenant under a certain lease dated
_____________, ____ between ________________________________, as landlord
("Landlord"), and Tenant, as tenant (as amended through the date hereof, the
"Lease"), pursuant to which Tenant leased a portion (the "Leased Premises") of
the property known as _____________________________, located at
_____________________________, as more particularly described in Schedule A
attached hereto (the "Property").
B. Landlord has or will grant a deed of trust lien on and
security interest in the Property to Trustee (for its benefit and for the
benefit of the holders of certain senior secured notes and notes issued in
exchange therefor pursuant to that certain indenture dated as of [________ ___,
2002]) pursuant to one or more mortgages, deeds of trust, deeds to secure debt
or similar security instruments (collectively, the "Security Instruments").
C. Tenant has agreed to subordinate the Lease to the Security
Instruments and to the lien thereof and Trustee has agreed not to disturb
Tenant's possessory rights in the Leased Premises under the Lease on the terms
and conditions hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. Subordination. Notwithstanding anything to the contrary set
forth in the Lease, the Lease and the leasehold estate created thereby and all
of Tenant's rights thereunder are and shall at all times be subject and
subordinate in all respects to the Security Instruments and the lien thereof,
and to all rights of Trustee thereunder, and to any and all advances to be made
thereunder, and to all renewals, modifications, consolidations, replacements and
extensions thereof.
2. Nondisturbance. So long as Tenant complies with the
provisions of this Agreement, pays all rents and other charges as specified in
the Lease and is not otherwise in default (beyond applicable notice and cure
periods) of any of its obligations and covenants pursuant to the Lease, Trustee
agrees for itself and its successors in interest and for any other person
acquiring title to the Property through a foreclosure (an "Acquiring Party"),
that Tenant's possession of the Leased Premises as described in the Lease will
not be disturbed during the term of the Lease by reason of a foreclosure. For
purposes of this Agreement, a "foreclosure" shall include (but not be limited
to) a sheriff's or trustee's sale under the power of sale contained in the
Security Instruments, the termination of any superior lease of the Property and
any other transfer of the Landlord's interest in the Property under peril of
foreclosure, including, without limitation to the generality of the foregoing,
an assignment or sale in lieu of foreclosure.
3. Attornment. Tenant agrees to attorn to, accept and
recognize any Acquiring Party as the landlord under the Lease pursuant to the
provisions expressly set forth therein for the then remaining balance of the
term of the Lease, and any extensions thereof as made pursuant to the Lease. The
foregoing provision
shall be self-operative and shall not require the execution of any further
instrument or agreement by Tenant as a condition to its effectiveness.
4. No Liability. Notwithstanding anything to the contrary
contained herein or in the Lease, it is specifically understood and agreed that
neither the Trustee, any receiver nor any Acquiring Party shall be:
(a) liable for any act, omission, negligence or default of
any prior landlord (including Landlord); or
(b) liable for any failure of any prior landlord (including
Landlord) to construct any improvements or bound by any covenant to
construct any improvement either at the commencement of the term of the
Lease or upon any renewal or extension thereof or upon the addition of
additional space pursuant to any expansion right contained in the
Lease; or
(c) subject to any offsets, credits, claims or defenses which
Tenant might have against any prior landlord (including Landlord); or
(d) bound by any rent or additional rent which is payable on a
monthly basis and which Tenant might have paid for more than one (1)
month in advance to any prior landlord (including Landlord) or by any
security deposit or other prepaid charge which Tenant might have paid
in advance to any prior landlord (including Landlord); or
(e) liable to Tenant hereunder or under the terms of the Lease
beyond its interest in the Property; or
(f) bound by any assignment, subletting, renewal, extension or
any other agreement or modification of the Lease made without the
written consent of Trustee; or
(g) bound by any consensual or negotiated surrender,
cancellation or termination of the Lease, in whole or in part, agreed
upon between Landlord and Tenant unless effected unilaterally by Tenant
pursuant to the express terms of the Lease.
Notwithstanding the foregoing, Tenant reserves its right to
any and all claims or causes of action (i) against such prior landlord for prior
losses or damages and (ii) against the successor landlord for all losses or
damages arising from and after the date that such successor landlord takes title
to the Property.
5. Certain Acknowledgments and Agreements by Tenant. (a)
Tenant has notice that the Lease and the rents and all other sums due thereunder
have been assigned to Trustee as security for the notes secured by the Security
Instruments. In the event Trustee notifies Tenant of the occurrence of a default
under the Security Instruments and demands that Tenant pay its rents and all
other sums due or to become due under the Lease directly to Trustee, Tenant
shall honor such demand and pay its rent and all other sums due under the Lease
directly to Trustee or as otherwise authorized in writing by Trustee. Landlord
irrevocably authorizes Tenant to make the foregoing payments to Trustee upon
such notice and demand.
(b) Tenant shall send a copy of any and all notices or
statements under the Lease to Trustee at the same time such notices or
statements are sent to Landlord.
(c) This Agreement satisfies any and all conditions or
requirements in the Lease relating to the granting of a non-disturbance
agreement.
6. Trustee to Receive Default Notices. Tenant shall notify
Trustee of any default by Landlord under the Lease which would entitle Tenant to
cancel the Lease, and agrees that, notwithstanding any pro-
visions of the Lease to the contrary, no notice of cancellation thereof shall be
effective unless Trustee shall have received notice of default giving rise to
such cancellation and shall have failed within sixty (60) days after receipt of
such notice to cure such default or, if such default cannot be cured within
sixty (60) days, shall have failed within sixty (60) days after receipt of such
notice to commence and thereafter diligently pursue any action necessary to cure
such default.
7. Estoppel. Tenant hereby certifies and represents to
Trustee that as of the date of this Agreement:
(a) the Lease is in full force and effect;
(b) all requirements for the commencement and validity of the
Lease have been satisfied and there are no unfulfilled conditions to
Tenant's obligations under the Lease;
(c) Tenant is not in default under the Lease and has not
received any uncured notice of any default by Tenant under the Lease;
to the best of Tenant's knowledge, Landlord is not in default under the
Lease; no act, event or condition has occurred which with notice or the
lapse of time, or both, would constitute a default by Tenant or
Landlord under the Lease; no claim by Tenant of any nature exists
against Landlord under the Lease; and all obligations of Landlord have
been fully performed;
(d) there are no defenses, counterclaims or setoffs against
rents or charges due or which may become due under the Lease;
(e) none of the rent which Tenant is required to pay under the
Lease has been prepaid, or will in the future be prepaid, more than one
(1) month in advance;
(f) Tenant has no right or option contained in the Lease or
in any other document to purchase all or any portion of the Leased
Premises;
(g) the Lease has not been modified or amended and
constitutes the entire agreement between Landlord and Tenant relating
to the Leased Premises;
(h) Tenant has not assigned, mortgaged, sublet, encumbered,
conveyed or otherwise transferred any or all of its interest under the
Lease; and
(i) Tenant has full authority to enter into this Agreement,
which has been duly authorized by all necessary action.
8. Notices. All notices or other written communications
hereunder shall be deemed to have been properly given (i) upon delivery, if
delivered in person with receipt acknowledged by the recipient thereof, (ii) one
(1) Business Day (hereinafter defined) after having been deposited for overnight
delivery with any reputable overnight courier service, or (iii) three (3)
Business Days after having been deposited in any post office or mail depository
regularly maintained by the United States Postal Service and sent by registered
or certified mail, postage prepaid, return receipt requested, addressed to the
receiving party at its address set forth above or addressed as such party may
from time to time designate by written notice to the other parties. For purposes
of this Section 8, the term "Business Day" shall mean any day other than
Saturday, Sunday or any other day on which banks are required or authorized to
close in New York, New York. Either party by notice to the other may designate
additional or different addresses for subsequent notices or communications.
9. Successors. The obligations and rights of the parties
pursuant to this Agreement shall bind and inure to the benefit of the
successors, assigns, heirs and legal representatives of the respective parties;
provided, however, that in the event of the assignment or transfer of the
interest of Trustee, all obligations and
liabilities of Trustee under this Agreement shall terminate, and thereupon all
such obligations and liabilities shall be the responsibility of the party to
whom Trustee's interest is assigned or transferred; and provided, further, that
the interest of Tenant under this Agreement may not be assigned or transferred
without the prior written consent of Trustee. In addition, Tenant acknowledges
that all references herein to Landlord shall mean the owner of the landlord's
interest in the Lease, even if said owner shall be different from the Landlord
named in the Recitals.
10. Duplicate Original; Counterparts. This Agreement may be
executed in any number of duplicate originals and each duplicate original shall
be deemed to be an original. This Agreement may be executed in several
counterparts, each of which counterparts shall be deemed an original instrument
and all of which together shall constitute a single Agreement.
11. Limitation of Trustee's Liability. (a) Trustee shall have
no obligations nor incur any liability with respect to any warranties of any
nature whatsoever, whether pursuant to the Lease or otherwise, including,
without limitation, any warranties respecting use, compliance with zoning,
Landlord's title, Landlord's authority, habitability, fitness for purpose or
possession.
(b) In the event that Trustee shall acquire title to the
Leased Premises or the Property, Trustee shall have no obligation, nor incur any
liability, beyond Trustee's then equity interest, if any, in the Leased
Premises, and Tenant shall look exclusively to such equity interest of Trustee,
if any, in the Leased Premises for the payment and discharge of any obligations
imposed upon Trustee hereunder or under the Lease, and Trustee is hereby
released and relieved of any other obligations hereunder and under the Lease.
12. Modification in Writing. This Agreement may not be
modified except by an agreement in writing signed by the parties hereto or their
respective successors in interest.
13. Lien of Security Instruments. Nothing contained in this
Agreement shall in any way impair or affect the lien created by the Security
Instruments or the provisions thereof.
14. Compliance with Lease. Tenant agrees that in the event
there is any inconsistency between the terms and provisions hereof and the terms
and provisions of the Lease, the terms and provisions hereof shall be
controlling.
15. Governing Law; Severability. This Agreement shall be
governed by the laws of the State of [ ]. If any term of this Agreement or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Agreement or the application of
such terms to any person or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby, and each term of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
16. Further Actions. Tenant agrees at its own expense to
execute and deliver, at any time and from time to time upon the request of
Trustee or any Acquiring Party, such documents and instruments (in recordable
form, if requested) as may be necessary or appropriate, in the opinion of
Trustee or any Acquiring Party, to fully implement or to further evidence the
understandings and agreements contained in this Agreement. Moreover, Tenant
hereby irrevocably appoints and constitutes Trustee or any Acquiring Party as
its true and lawful attorney-in-fact to execute and deliver any such documents
or instruments which may be necessary or appropriate, in the opinion of Trustee
or any Acquiring Party, to implement or further evidence such understandings and
agreements and which Tenant, after thirty (30) days' notice from Trustee or any
Acquiring Party, has failed to execute and deliver.
IN WITNESS WHEREOF, Trustee and Tenant have duly executed this
Agreement as of the date first above written.
-------------------------------------------,
as Trustee
By:
-------------------------------------
Name:
Title:
-------------------------------------------,
as Tenant
By:
-------------------------------------
Name:
Title:
The undersigned, as the Landlord named in the Recitals, having
duly executed this Agreement as of the date first written above, and as grantor,
pledgor, assignor or debtor under the Security Instruments, hereby accepts and
agrees for itself and its successors and assigns, (i) to be bound by the
provisions of Section 5 hereof, (ii) that nothing contained in the foregoing
Agreement (x) shall in any way be deemed to constitute a waiver by Trustee of
any of its rights or remedies under the Security Instruments or (y) shall in any
way be deemed to release Landlord from its obligations to comply with the terms,
provisions, conditions, covenants and agreements set forth in the Security
Instruments and (iii) that the provisions of the Security Instruments remain in
full force and effect and must be complied with by Landlord.
--------------------------------, a
--------------------------------
By:
-------------------------------------
Name:
Title:
ACKNOWLEDGMENT
State of )
---------------
) ss.:
County of )
--------------
[Local counsel to provide appropriate acknowledgment]