Exhibit 10.9(u)
This instrument prepared by and
after recording return to:
Carole K. Towne, Esq.
GOLDBERG, KOHN, BELL, BLACK,
ROSENBLOOM & MORITZ, LTD.
55 East Monroe Street
Suite 3700
Chicago, Illinois 60603
(312) 201-4000
DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
(Los Angeles County, California)
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND
FIXTURE FILING ("Deed of Trust"), dated as of March 11, 2003, is made and
executed by PLAYBOY ENTERPRISES INTERNATIONAL, INC., a Delaware corporation with
its chief executive office and principal place of business at c/o PEI Holdings,
Inc., 680 North Lake Shore Drive, Chicago, Illinois 60611 ("Trustor"), in favor
of FIDELITY NATIONAL TITLE INSURANCE COMPANY, having an address at 1900 West
Loop South, Suite 760, Houston, Texas 77027 ("Trustee"), for the benefit of BANK
OF AMERICA, N.A. (in its individual capacity, "Bank of America"), having an
office at 231 South LaSalle Street, Chicago, Illinois 60697, as agent (Bank of
America, in its capacity as agent being hereinafter referred to as "Agent") for
Lenders (as "Lenders" is defined in the Credit Agreement referred to below).
RECITALS
I. Pursuant to the terms of a certain Credit Agreement of even date
herewith (said Credit Agreement, together with all amendments, supplements,
modifications and replacements thereof, being hereinafter referred to as the
"Credit Agreement") by and between Bank of America, as a Lender and as Agent for
all Lenders, and PEI HOLDINGS INC. ("Borrower"), Agent and Lenders have agreed
to make loans to Borrower and extend other financial accommodations to Borrower
in an aggregate amount of $30,000,000, consisting of (i) revolving loans in an
aggregate principal amount not to exceed $20,000,000 (the "Loans"), which Loans
are evidenced by one or more notes in the aggregate principal amount of
$20,000,000 (said notes, together with all amendments, supplements,
modifications and full or partial replacements thereof, being hereinafter
referred to as the "Notes"), with a maturity date of March 11, 2006, and (ii)
obligations of Borrower under certain Swap Contracts (as defined in the Credit
Agreement and as referred to in Rider No. 1 attached hereto and made a part
hereof) not to exceed $10,000,000 (the "Swap
Obligations"). Trustor, among others, has executed and delivered to Agent and
Lenders a certain Master Corporate Guaranty of even date herewith (said Master
Corporate Guaranty, together with all amendments, supplements, modifications and
full or partial replacements thereof, being hereinafter referred to the
"Guaranty"), guarantying the obligations of Borrower to repay the Loans and the
Swap Obligations. The rate or rates of interest payable under the Credit
Agreement may vary from time to time.
II. This Deed of Trust secures the Guaranty. All persons who may
have or acquire an interest in the Property (defined herein) shall be deemed to
have notice of the terms of the Guaranty, the Notes and the Credit Agreement and
to have notice that the Credit Agreement may permit borrowing, repayment and
re-borrowing and that the rate of interest payable on the indebtedness secured
by the Guaranty may vary from time to time.
GRANTING CLAUSES
For the purposes and upon the terms and conditions in this Deed of
Trust and to secure the payment of and performance by Trustor of its obligations
under the Guaranty and the payment of all interest, fees and other amounts due
under and the performance and observance of all covenants and conditions
contained in this Deed of Trust and the Guaranty and any and all renewals,
extensions, amendments and replacements of this Deed of Trust and the Guaranty
and any such other documents and instruments executed in connection therewith
(the Guaranty, the Notes, the Credit Agreement, this Deed of Trust, the Swap
Contracts, such other documents and instruments now or hereafter executed and
delivered in connection with the Loans or the Swap Obligations, and any and all
amendments, renewals, extensions and replacements hereof and thereof, being
sometimes referred to collectively as the "Loan Instruments") (all indebtedness
and liabilities secured hereby being hereinafter sometimes referred to as
"Guarantor's Liabilities"):
(A) Trustor irrevocably grants, conveys and assigns to Trustee, in
trust for the benefit of Agent, with power of sale and right of entry and
possession, a security interest in the following described property subject to
the terms and conditions herein:
(1) The land located in Los Angeles County, California, legally
described in attached Exhibit A ("Land");
(2) All Trustor's right, title and interest in the buildings,
structures, improvements and fixtures of every kind or nature now or
hereafter situated on the Land (the "Improvements");
(3) All Trustor's right, title and interest in any rights or
appurtenances relating to any of the Land or Improvements, or which
hereafter shall in any way belong, relate or be appurtenant thereto,
whether now owned or hereafter acquired (the "Appurtenances");
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(4) All Trustor's right, title and interest in proceeds, products,
replacements, additions, substitutions, renewals and accessions of and to
the Land, Improvements and Appurtenances;
(5) Any and all after-acquired right, title or interest of Trustor
in and to any of the property described in the preceding subsections (1)
through (4); and
(6) The proceeds from the sale, transfer, pledge or other
disposition of any or all of the property described in the preceding
subsections (1) through (5);
(B) Trustor hereby grants and assigns to Agent a security interest
in all of Trustor's right, title and interest in the following described
personal property:
(1) Except that which is owned by any tenant of the Land and/or
Improvements, all machinery, appliances, equipment, furniture and all
other personal property of every kind or nature located in or on, or
attached to, or used or intended to be used in connection with, or with
the operation of, the Land and the Improvements now or hereafter located
or to be located on the Land, and all extensions, additions, improvements,
substitutions and replacements to any of the foregoing;
(2) (i) All judgments, insurance proceeds, awards of damages and
settlements which may result from any damage to all or any portion
of the Land, Improvements or Appurtenances or any part thereof or to
any rights appurtenant thereto;
(ii) All compensation, awards, damages, claims, rights of
action and proceeds of or on account of (a) any damage or taking,
pursuant to the power of eminent domain, of the Land, Improvements
or Appurtenances or any part thereof, (b) damage to all or any
portion of the Land, Improvements or Appurtenances by reason of the
taking, pursuant to the power of eminent domain, of all or any
portion of the Land, Improvements or Appurtenances or of other
property, or (c) the alteration of the grade of any street or
highway on or about the Land, Improvements or Appurtenances or any
part thereof; and, except as otherwise provided herein, Agent is
hereby authorized to collect and receive said awards and proceeds
and to give proper receipts and acquittances therefor and, except as
otherwise provided herein, to apply the same toward the payment of
the indebtedness and other sums secured hereby; and
(iii) All proceeds, products, replacements, additions,
substitutions, renewals and accessions of and to any of the
foregoing;
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(3) Any and all after-acquired right, title or interest of Trustor
in and to any of the property described in the preceding subsections (1)
and (2); and
(4) The proceeds from the sale, transfer, pledge or other
disposition of any or all of the property described in the preceding
subsections (1) through (3); and
(C) Trustor hereby irrevocably assigns to Agent all of Trustor's
right, title and interest (if any) in, to and under:
(1) All rents, issues, profits, income and other benefits now or
hereafter arising from or in respect of the Land, Improvements or
Appurtenances (the "Rents"); it being intended that this Granting Clause
shall constitute an absolute and present assignment of the Rents, subject,
however, to the license conferred by Agent upon Trustor to collect and
retain the Rents as provided in Section 1.11 hereof;
(2) Any and all subleases, licenses and other occupancy agreements
now or hereafter affecting the Land, Improvements or Appurtenances (the
"Leases"); subject, however, to the license conferred by Agent upon
Trustor to collect and retain the Rents provided in Section 1.11 hereof;
(3) Any and all after-acquired right, title or interest of Trustor
in and to any of the property described in the preceding subsections (1)
and (2); and
(4) The proceeds from the sale, transfer, pledge or other
disposition of any or all of the property described in the preceding
subsections (1) through (3).
All of the Property described in the Granting Clauses is hereinafter
collectively referred to as the "Property."
Trustor hereby covenants, warrants and represents that as of the
date hereof and at all times thereafter during the term hereof, Trustor is and
shall be the owner of the Property.
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ARTICLE ONE
COVENANTS OF TRUSTOR
Trustor covenants and agrees with Agent as follows:
1.1. Performance under Guaranty and Deed of Trust. Trustor shall
perform, observe and comply with or cause to be performed, observed and complied
with in a complete and timely manner all provisions hereof and of the Guaranty.
1.2. General Covenants and Representations. Trustor covenants,
represents and warrants that as of the date hereof and at all times thereafter
during the term hereof: (a) Trustor is seized of an indefeasible estate in fee
simple in that portion of the Property which is real property, and has good and
absolute title to it and the balance of the Property free and clear of all
liens, security interests, charges and encumbrances whatsoever, except for (i)
the Agreement of Lease dated June 1, 1979 between Hugh M. Hefner and Playboy
Enterprises, Inc. (Trustor's predecessor by merger) (said Agreement of Lease, as
amended from time to time, being hereinafter referred to as the "Hefner Lease");
(ii) any deed of trust securing the Senior Secured Note Debt (as defined in the
Credit Agreement, such deed of trust being hereinafter referred to as the
"Junior Deed of Trust"); (iii) any option agreement that may be entered into
between Trustor and Hugh M. Hefner (or any entity controlled by Hugh M. Hefner)
granting Hugh M. Hefner (or any entity controlled by Hugh M. Hefner) an option
to acquire the Property or any portion thereof (the "Option"); (iv) any lien
securing real estate taxes that are not at the time delinquent or are thereafter
payable without penalty or that are being contested in accordance with the
provisions of the Credit Agreement; and (v) those encumbrances set forth on
Schedule B of the loan policy of title insurance accepted by Agent insuring the
lien of this Deed of Trust (such liens, security interests, charges and
encumbrances set forth in clauses (i), (ii), (iii), (iv) and (v) being
hereinafter collectively referred to as the "Permitted Encumbrances"); and (b)
until the Loans and the Swap Obligations have been paid in full and all
obligations of Agent and Lenders under the Credit Agreement have been
terminated, Trustor will maintain and preserve the lien of this Deed of Trust as
a first and paramount lien on the Property, subject only to the Permitted
Encumbrances, except that this Deed of Trust shall be prior to the Hefner Lease,
the Junior Deed of Trust and the Option.
1.3. Compliance with Laws and Other Restrictions. Trustor covenants
and represents that the Land and the Improvements and the use thereof presently
comply with, and will continue to comply with, all applicable restrictive
covenants, zoning and subdivision ordinances and building codes, licenses,
health and environmental laws and regulations and all other applicable laws,
ordinances, rules and regulations, except for such non-compliance as could not
reasonably be expected to have a Material Adverse Effect (as defined in the
Credit Agreement).
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1.4. Taxes and Other Charges.
1.4.1. Taxes and Assessments. Trustor shall pay promptly when due
all taxes, assessments, rates, dues, charges, fees, levies, fines, impositions,
liabilities, obligations, liens and encumbrances of every kind and nature
whatsoever now or hereafter imposed, levied or assessed upon or against the
Property or any part thereof, or upon or against this Deed of Trust or
Guarantor's Liabilities; provided, however, that Trustor may in good faith
contest the validity, applicability or amount of any tax, assessment or other
charge in accordance with the provisions of the Credit Agreement.
1.4.2. Intentionally deleted.
1.5. Mechanic's and Other Liens. Trustor shall not permit or suffer
any mechanic's, laborer's, materialman's, statutory or other lien or encumbrance
(other than as permitted in Section 1.4.1 hereof) to be created upon or against
the Property; provided, however, that Trustor may in good faith, by appropriate
proceedings, contest the validity, applicability or amount of any asserted lien
in accordance with the provisions of the Credit Agreement.
1.6. Insurance and Condemnation.
1.6.1. Insurance Policies. Trustor shall, at its sole expense,
obtain for, deliver to, assign to and maintain for the benefit of Agent, until
the Loans and the Swap Obligations are paid in full, such policies of insurance
as are required by a certain Master Security Agreement of even date herewith
executed by Trustor in favor of Agent.
1.6.2. Adjustment of Loss; Application of Proceeds. Agent is hereby
authorized and empowered, at its option, to adjust or compromise any loss under
any insurance policies covering the Property and to collect and receive the
proceeds from any such policy or policies. Trustor hereby irrevocably appoints
Agent as its attorney-in-fact for the purposes set forth in the preceding
sentence. The entire amount of such proceeds, awards or compensation shall be
applied to the Loans. Notwithstanding the foregoing, if (i) in the sole judgment
of Agent, the improvements located on the Property can be repaired or restored
to an architectural and economic unit of the same character and not less
valuable than they were prior to such damage and destruction, (ii) Agent shall
be satisfied in its sole judgment that the repair or restoration of such
improvements will be completed no later than one hundred eighty (180) days prior
to the maturity date of the Loans, (iii) the insurers do not deny liability to
the insured, and (iv) no Default (as defined in the Credit Agreement) or Event
of Default shall then exist, then Agent will make the proceeds of insurance,
after deducting from such proceeds all expenses incurred by Agent in the
collection thereof, including attorneys' fees, available for repair or
restoration on the following conditions. If the amount of proceeds to be made
available to Trustor is less than the cost of the restoration or repair as
estimated by Agent at any time prior to completion thereof, Trustor shall cause
to be deposited with Agent the amount of such deficiency within thirty (30) days
following Agent's written request therefor (but in no event later than the
commencement of the
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work) and Trustor's deposited funds shall be disbursed prior to any such
insurance proceeds. If Trustor is so required to deposit funds, the deposit of
such funds shall be a condition precedent to Agent's obligation to disburse any
insurance proceeds held by Agent hereunder. Without limitation of Agent's rights
hereunder, it shall be an additional condition precedent to any disbursement of
insurance proceeds held by Agent hereunder that Agent shall have approved all
plans and specifications for any proposed repair or restoration. The amount of
proceeds, award or compensation which is to be made available to Trustor,
together with any deposits made by Trustor hereunder, shall be disbursed in such
a manner so as to assure that no liens or claims against the Property shall
arise. Notwithstanding any other provision of this Section, if a Default or an
Event of Default shall be existing at the time of such casualty or if a Default
or an Event of Default occurs thereafter, Agent shall have the right to
immediately apply all insurance proceeds, awards or compensation to the payment
of the Loans.
1.6.3. Condemnation Awards. Agent shall be entitled to all
compensation, awards, damages, claims, rights of action and proceeds of, or on
account of, (i) any damage or taking, pursuant to the power of eminent domain,
of the Property or any part thereof, (ii) damage to the Property by reason of
the taking, pursuant to the power of eminent domain, of other property, or (iii)
the alteration of the grade of any street or highway on or about the Property.
Agent is hereby authorized, at its option, to commence, appear in and prosecute
in its own or Trustor's name any action or proceeding relating to any such
compensation, awards, damages, claims, rights of action and proceeds and to
settle or compromise any claim in connection therewith. Trustor hereby
irrevocably appoints Agent as its attorney-in-fact for the purposes set forth in
the preceding sentence.
1.6.4. Obligation to Repair. If all or any part of the Property
shall be damaged or destroyed by fire or other casualty or shall be damaged or
taken through the exercise of the power of eminent domain or other cause
described in Section 1.6.3, Trustor shall promptly and with all due diligence
restore and repair the Property to the extent that the proceeds, award or other
compensation are made available to Trustor or proceeds of the Loans are made
available to Trustor for such purpose and are sufficient to pay the cost of such
restoration or repair.
1.7. Agent May Pay; Default Rate. Upon Trustor's failure to pay any
amount required to be paid by Trustor under any provision of this Deed of Trust,
Agent may pay the same. Trustor shall pay to Agent on demand the amount so paid
by Agent together with interest at a rate equal to the highest rate payable
under the Credit Agreement after the occurrence of an "Event of Default" as such
term is defined in the Credit Agreement (the "Default Rate") and the amount so
paid by Agent, together with interest, shall be added to Guarantor's
Liabilities.
1.8. Care of the Property. Trustor shall preserve and maintain the
Property in good operating condition.
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1.9. Transfer or Encumbrance of the Property. Trustor shall not
permit or suffer to occur any Disposition (as defined in the Credit Agreement)
of the Property, except as permitted by the Credit Agreement.
1.10. Further Assurances. At any time and from time to time, upon
Agent's request, Trustor shall make, execute and deliver, or cause to be made,
executed and delivered, to Agent, and where appropriate shall cause to be
recorded, registered or filed, and from time to time thereafter to be
re-recorded, re-registered and refiled at such time and in such offices and
places as shall be deemed desirable by Agent, any and all such further mortgages
or deeds of trust, security agreements, financing statements, instruments of
further assurance, certificates and other documents as Agent may consider
reasonably necessary in order to effectuate or perfect, or to continue and
preserve the obligations under, this Deed of Trust.
1.11. Assignment of Rents. The assignment of rents, income and other
benefits contained in Section (C) of the Granting Clauses of this Deed of Trust
shall be fully operative without any further action on the part of either party,
and, specifically, Agent shall be entitled, at its option, upon the occurrence
of an Event of Default hereunder, to all rents, income and other benefits from
the Property, whether or not Agent takes possession of such property.
Notwithstanding the foregoing, so long as no Event of Default has occurred,
Trustor shall have the right and authority to continue to collect the rents,
income and other benefits from the Property as they become due and payable but
not more than thirty (30) days prior to the due date thereof.
1.12. After-Acquired Property. To the extent permitted by, and
subject to, applicable law, the lien of this Deed of Trust shall automatically
attach, without further act, to all property hereafter acquired by Trustor
located in or on, or attached to, or used or intended to be used in connection
with, or with the operation of, the Property or any part thereof.
1.13. Leases Affecting Property. Trustor shall comply with and
perform in a complete and timely manner all of its obligations as landlord under
all leases affecting the Property or any part thereof. The assignment contained
in Section (C) of the Granting Clauses shall not be deemed to impose upon Agent
any of the obligations or duties of the landlord or Trustor provided in any
lease.
1.14. Execution of Leases. Except as may be permitted by the Credit
Agreement, Trustor shall not permit any leases to be made of the Property, or to
be modified, terminated, extended or renewed, without the prior written consent
of Agent.
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1.15. Fixture Filing. Trustor and Agent agree that this Deed of
Trust shall be effective from the date of its recording as a fixture filing with
respect to all goods and other personal property constituting part of the
Property which are or are to become fixtures related to the real estate
described herein. For this purpose, the following information is set forth:
(a) Name and Address of Debtor:
Playboy Enterprises International, Inc.
c/o PEI Holdings, Inc.
680 North Lake Shore Drive
Chicago, Illinois 60611
(b) Name and Address of Secured Party:
Fidelity National Title Insurance Company
1900 West Loop South, Suite 760
Houston, Texas 77027
(c) This document covers goods and personal property which are or
are to become fixtures.
(d) The name of the record owner is "Playboy Enterprises
International, Inc."
The real estate to which such fixtures are or are to be attached is that
described in Exhibit A attached hereto, the record owner of which is Trustor.
ARTICLE TWO
DEFAULTS
2.1. Event of Default. The term "Event of Default," wherever used in
this Deed of Trust, shall mean any one or more of the following events:
(a) The failure by Trustor to keep, perform, or observe any
covenant, condition or agreement on the part of Trustor in this Deed of
Trust, which failure is not cured within any applicable grace or cure
period provided in the Credit Agreement.
(b) The occurrence of an "Event of Default" under and as defined in
the Credit Agreement or any of the other Loan Instruments.
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ARTICLE THREE
REMEDIES
3.1. Acceleration of Maturity. If an Event of Default shall have
occurred, Agent may declare the Loans to be immediately due and payable, without
further demand or notice.
3.2. Agent's Power of Enforcement. If an Event of Default shall have
occurred and Agent shall have declared all the Loans immediately due and
payable, Agent may, either with or without entry or taking possession as
provided in this Deed of Trust or otherwise, and without prejudice to the right
of Agent thereafter to bring an action of foreclosure or any other action for
any default existing at the time such earlier action was commenced or arising
thereafter, proceed by any appropriate action or proceeding:
(a) To enforce the obligations of Trustor under the Guaranty.
(b) To commence and maintain an action or actions in any court of
competent jurisdiction to foreclose this instrument as a mortgage or to
obtain specific enforcement of the covenants of Trustor hereunder, and
Trustor agrees that such covenants shall be specifically enforceable by
injunction or any other appropriate equitable remedy and that, for the
purposes of any suit brought under this subsection, Trustor waives the
defense of laches and any applicable statute of limitations.
(c) To apply to a court of competent jurisdiction for and obtain
appointment of a receiver of the Property as a matter of strict right and
without regard to the adequacy of the security for the repayment of
Guarantor's Liabilities, the existence of a declaration that the Loans are
immediately due and payable, or the filing of a notice of default, and
Trustor hereby consents to such appointment.
(d) To execute a written notice of such Event of Default and of
Agent's election to cause the Property to be sold to satisfy Guarantor's
Liabilities. As a condition precedent to any such sale, Trustee shall give
and record such notice of default as the law then requires. When the
minimum period of time required by law after the recordation of such
notice of default has elapsed, and notice of sale having been given as
then required by law, shall sell the Property at the time and place of
sale fixed by it in the notice of sale, at one or several sales, either as
a whole or in separate parcels and in such manner and order, all as Agent
in its sole discretion may determine, at public auction and to the highest
bidder for cash, in lawful money of the United States, payable at the time
of sale. Neither Trustor nor any other person or entity other than Agent
shall have the right to direct the order in which the Property is sold.
Subject to requirements and limits imposed by law, Trustee may from time
to time postpone the sale of all or any portion of the Property
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by public announcement at such time and place of sale, Trustee shall
deliver to the purchaser at such sale a deed conveying the Property or
portion thereof so sold, but without any covenant or warranty, express or
implied. The recitals in the deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person, including
Trustee, Trustor or Agent may purchase at the sale.
(e) To resort to and realize upon the security hereunder and any
other security now or later held by Agent concurrently or successively and
in one or several consolidated or independent judicial actions or lawfully
taken non-judicial proceedings, or both, and to apply the proceeds
received upon Guarantor's Liabilities all in such order and manner as
Trustee and Agent, or either of them, determine in their sole discretion.
At any sale of the Property held pursuant to subsection (b) or subsection (d)
above, Agent may bid, as the equivalent of cash, the amount of all or any
portion of Guarantor's Liabilities, including, without limitation, reasonable
attorneys' fees. Agent may take action either by such proceedings or by the
exercise of its powers with respect to entry or taking possession, or both, as
Agent may determine.
3.3. Trustee's Sale. Should Agent elect to foreclose by exercise of
the power of sale contained herein, Agent shall notify Trustee and shall, if
required, deposit with Trustee the Notes, the original or a certified copy of
this Deed of Trust, and such other documents, receipts and evidences of
expenditures made and secured hereby as Trustee may require.
(a) Upon receipt of such notice from Agent, Trustee shall cause to
be recorded and delivered to Trustor such notice of default as may then be
required by law and by this Deed of Trust. Trustee shall, without demand
on Trustor, after lapse of such time as may then be required by law and
after recordation of such notice of default and after notice of sale has
been given as required by law, sell the Property at the time and place of
sale fixed by it in said notice of sale, either as a whole or in separate
lots or parcels or items as Trustee shall deem expedient, and in such
order as it may determine, at public auction to the highest bidder for
cash in lawful money of the United State payable at the time of sale.
Trustee shall deliver to the purchaser or purchasers at such sale its good
and sufficient deed or deeds conveying the property so sold, but without
any covenant or warranty, express or implied. The recitals in such deed of
any matters or facts shall be conclusive proof of the truthfulness
thereof. Any person, including, without limitation, Trustor, Trustee or
Agent, may purchase at such sale, and Trustor hereby covenants to warrant
and defend the title of such purchaser or purchasers.
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(b) Trustee may postpone the sale of all or any portion of the
Property from time to time in accordance with the laws of the State in
which the Land is located.
(c) To the fullest extent allowed by law, Trustor hereby expressly
waives any right which it may have to direct the order in which any of the
Property shall be sold in the event of any sale or sales pursuant to this
Deed of Trust.
3.4. Application of Foreclosure Sale Proceeds. After deducting all
costs, fees and expenses of Trustee, and of this trust, including, without
limitation, cost of evidence of title and reasonable attorneys' fees in
connection with the sale, Trustee shall apply all proceeds of any foreclosure
sale: (i) to payment of all sums reasonably expended by Agent; (ii) to payment
of all other Guarantor's Liabilities; and (iii) the remainder, if any, to the
person or persons legally entitled thereto.
3.5. Application of Other Sums. All sums received by Agent under
this Deed of Trust other than the sums referred to in Section 3.3, less all
costs and expenses reasonably incurred by Agent or any receiver under this Deed
of Trust, including, without limitation, attorneys' fees, shall be applied in
payment of Guarantor's Liabilities, in such order as Agent shall elect and, in
the absence of such election, first to all costs and expenses incurred by Agent,
Trustee or any receiver under this Deed of Trust, including the expenses of
sale, then to expenses (including attorneys' fees) of the foreclosure
proceeding, then to other liabilities; provided, however, Agent shall have no
liability for funds not actually received by Agent. If any sums received by
Agent under this Deed of Trust other than the sums referred to in Section 3.3
shall be remaining after Guarantor's Liabilities are paid in full, such sums
remaining shall be paid to Trustor.
3.6. No Cure or Waiver. Neither Agent's, nor Trustee's, nor any
receiver's entry upon and taking possession of all or any part of the Property,
nor any collection of rents, issues, profits, insurance proceeds, condemnation
proceeds or damages, other security or proceeds of other security, or other
sums, nor the application of any collected sum to any of Guarantor's
Liabilities, nor the exercise or failure to exercise of any other right or
remedy by Agent or Trustee or any receiver shall cure or waive any breach, Event
of Default or notice of default under this Deed of Trust, or nullify the effect
of any notice of default or sale (unless all of Guarantor's Liabilities then due
have been paid and performed and Trustor has cured all other defaults), or
impair the status of the security, or prejudice Agent or Trustee in the exercise
of any right or remedy, or be construed as an affirmation by Agent of any
tenancy, lease or option or a subordination of the lien of this Deed of Trust.
3.7. Payment of Costs, Expenses and Attorneys' Fees. Trustor agrees
to pay to Agent immediately all reasonable costs and expenses incurred by
Trustee and Agent in connection with the exercise of rights under this Article
III (including, without limitation, court costs and attorneys' fees, whether
incurred in litigation or not). In addition, Trustor
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shall pay to Trustee all Trustee's fees hereunder and shall reimburse Trustee
for all expenses incurred in the administration of this trust, including,
without limitation, any attorneys' fees.
3.8. Power to File Notice and Cure Defaults. Trustor hereby
irrevocably appoints Agent and its successors and assigns, as its
attorney-in-fact, which agency is coupled with an interest (a) to execute and/or
record any notices of completion, cessation of labor, or any other notices that
Agent deems appropriate to protect Agent's interest, (b) upon the issuance of a
deed pursuant to the foreclosure of this Deed of Trust or the delivery of a deed
in lieu of foreclosure, to execute all instruments of assignment or further
assurance with respect to the Leases and Rents in favor of the grantee of any
such deed, as Agent may deem reasonably necessary or desirable for such purpose,
(c) to prepare, execute and file or record financing statements, continuation
statements, applications for registration and like papers necessary to create,
perfect or preserve Agent's security interests and rights, and (d) upon the
occurrence of an event, act or omission which, with notice or passage of time or
both, would constitute an Event of Default, Agent may perform any obligation of
Trustor hereunder; provided, however, that: (i) Agent as such attorney-in-fact
shall only be accountable for such funds as are actually received by Agent; and
(ii) Agent shall not be liable to Trustee or any other person or entity for any
failure to act under this Section.
3.9. Agent's Right to Enter and Take Possession, Operate and Apply
Income.
(a) If an Event of Default shall have occurred, Trustor, upon demand
of Agent, shall forthwith surrender to Agent the actual possession of the
Property, and to the extent permitted by law, Agent itself, or by such
officers or agents as it may appoint, is hereby expressly authorized,
without becoming a mortgagee in possession, to enter and take possession
of all or any portion of the Property, and to manage, operate, protect and
exercise any other rights of an occupant of the Property, and Agent may
exclude Trustor and the agents and employees of Trustor wholly therefrom.
(b) If an Event of Default shall have occurred and if Trustor shall
for any reason fail to surrender or deliver the Property or any part
thereof after Agent's demand, Agent may obtain a judgment or decree
conferring on Agent the right to immediate possession or requiring Trustor
to deliver immediate possession of all or part of the Property to Agent,
to the entry of which judgment or decree Trustor hereby specifically
consents. Trustor shall pay to Agent, upon demand, all costs and expenses
of obtaining such judgment or decree and reasonable compensation to Agent,
its attorneys and agents, and all such costs, expenses and compensation
shall, until paid, be secured by the lien of this Deed of Trust.
3.10. Waiver of Marshalling Rights. Trustor, for itself and for all
parties claiming through or under Trustor, and for all parties who may acquire a
lien on or interest in the Property, hereby waives all rights to have the
Property and/or any other property which is
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now or later may be security for Guarantor's Liabilities (the "Other Property")
marshaled upon any foreclosure of this Deed of Trust or on a foreclosure of any
other security for any of Guarantor's Liabilities. Agent shall have the right to
sell, and any court in which foreclosure proceedings may be brought shall have
the right to order a sale of, the Property and any or all of the Other Property
as a whole or in separate parcels, in any order that Agent may designate.
3.11. Remedies Cumulative. No right, power or remedy conferred upon
or reserved to Agent or Lenders by the Guaranty, the Notes, the Credit
Agreement, this Deed of Trust or any other Loan Instrument or any instrument
evidencing or securing Guarantor's Liabilities is exclusive of any other right,
power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given hereunder or under the Guaranty, the Notes, the Credit Agreement or
any other Loan Instrument or any instrument evidencing or securing Guarantor's
Liabilities, or now or hereafter existing at law, in equity or by statute.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
4.1. Acceptance of Trust; Powers and Duties of Trustee. Trustee
accepts this trust when this Deed of Trust is recorded. From time to time upon
reasonable written request of Agent and presentation of this Deed of Trust or a
certified copy thereof for endorsement, and without affecting the personal
liability of any person for payment of any indebtedness or performance of any
obligations secured hereby, Trustee may, without liability thereof and without
notice: (i) reconvey all or any part of the Property; (ii) consent to the making
of any map or plat thereof; and (iii) join in any grant of easement thereon, any
declaration of covenants and restrictions, or any extension agreement or any
agreement subordinating the lien or charge of this Deed of Trust. Except as may
be required by applicable law, Trustee or Agent may from time to time apply to
any court of competent jurisdiction for aid and direction in the execution of
the trust hereunder and the enforcement of rights and remedies available
hereunder, and may obtain orders or decrees directing or confirming or approving
acts in the execution of said trust and the enforcement of said remedies.
Trustee has no obligation to notify any party of any pending sale or any action
or proceeding, including, without limitation, actions in which Trustor, Agent or
Trustee shall be a party unless held or commenced and maintained by Trustee
under this Deed of Trust. Trustee shall not be obligated to perform any act
required of it hereunder unless the performance of the act is requested in
writing and Trustee is reasonably indemnified and held harmless against loss,
cost, liability or expense.
4.2. Substitution of Trustees. From time to time, by a writing,
signed and acknowledged by Agent and recorded in the Office of the Recorder of
the county in which the Property is situated, Agent may appoint another trustee
to act in the place and stead of Trustee or any successor. Such writing shall
set forth any information required by law. The
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recordation of such instrument of substitution shall discharge Trustee herein
named and shall appoint the new trustee as the trustee hereunder with the same
effect as if originally named Trustee herein. A writing recorded pursuant to the
provisions of this Section 4.2 shall be conclusive proof of the proper
substitution of such new Trustee.
4.3. Heirs, Successors and Assigns Included in Parties. Whenever
Trustor, Agent or Lenders are named or referred to herein, heirs and successors
and assigns of such person or entity shall be included, and all covenants and
agreements contained in this Deed of Trust shall bind the successors and assigns
of Trustor, including any subsequent owner of all or any part of the Property
and inure to the benefit of the successors and assigns of Agent and Lenders.
4.4. Notices. All notices, requests, reports, demands or other
instruments required or contemplated to be given or furnished under this Deed of
Trust to Trustor or Agent shall be directed, in the manner set forth in the
Credit Agreement, to Trustor, at the address provided on the first page of this
Deed of Trust, or Agent, at the address for notice provided in the Credit
Agreement, as the case may be. Notices sent by or to Trustee shall be sent by
U.S. Mail, postage prepaid, certified, return receipt requested.
4.5. Headings. The headings of the articles, sections, paragraphs
and subdivisions of this Deed of Trust are for convenience only, are not to be
considered a part hereof, and shall not limit, expand or otherwise affect any of
the terms hereof.
4.6. Invalid Provisions. In the event that any of the covenants,
agreements, terms or provisions contained in this Deed of Trust shall be
invalid, illegal or unenforceable in any respect, the validity of the remaining
covenants, agreements, terms or provisions contained herein (or the application
of the covenant, agreement, term held to be invalid, illegal or unenforceable,
to persons or circumstances other than those in respect of which it is invalid,
illegal or unenforceable) shall be in no way affected, prejudiced or disturbed
thereby.
4.7. Changes. Neither this Deed of Trust nor any term hereof may be
released, changed, waived, discharged or terminated orally, or by any action or
inaction, but only by an instrument in writing signed by the party against which
enforcement of the release, change, waiver, discharge or termination is sought.
4.8. Governing Law. This Deed of Trust shall be construed,
interpreted, enforced and governed by and in accordance with the laws of the
State of Illinois; except that the creation, perfection, priority and
enforcement of the lien and security interests created hereby shall be governed,
construed and enforced in accordance with the internal laws of the State of
California, without regard to conflicts of law principles.
4.9. Limitation of Interest. The provisions of the Credit Agreement
regarding the payment of lawful interest are hereby incorporated herein by
reference.
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4.10. Future Advances; Revolving Credit. This Deed of Trust is given
to secure a guaranty of not only existing indebtedness, but also future advances
(whether such advances are obligatory or are to be made at the option of Agent
or Lenders, or otherwise) made by Agent or Lenders under the Notes or the Credit
Agreement, to the same extent as if such future advances were made on the date
of the execution of this Deed of Trust.
4.11. Last Dollar. Unless earlier released or reconveyed in
accordance with the provisions of the Credit Agreement, the lien of this Deed of
Trust shall remain in effect until the last dollar of the Loans and the Swap
Obligations are paid in full and all obligations of Agent and Lenders under the
Credit Agreement have been terminated.
4.12. Reconveyance. This Deed of Trust shall be released upon the
terms and conditions set forth in the Credit Agreement (including a Disposition
of the Property permitted under the Credit Agreement) and, upon the satisfaction
of such terms and conditions and surrender to Trustee for cancellation of this
Deed of Trust or a certified copy thereof, Trustee shall reconvey, without
warranty, the Property or that portion thereof then held hereunder. To the
extent permitted by law, the reconveyance may describe the grantee as "the
person or persons legally entitled thereto" and the recitals of any matters or
facts in any reconveyance executed hereunder shall be conclusive proof of the
truthfulness thereof. Neither Agent nor Trustee shall have any duty to determine
the rights of persons claiming to be rightful grantees of any reconveyance. When
the Property has been fully reconveyed, the last of such reconveyance shall
operate as a reassignment of all future rents, issues and profits of the
Property to the person or persons legally entitled thereto.
4.13. Time of the Essence. Time is of the essence with respect to
this Deed of Trust and all the provisions hereof.
4.14. Credit Agreement. The Loans are governed by terms and
provisions set forth in the Credit Agreement and in the event of any conflict
between the terms of this Deed of Trust and the terms of the Credit Agreement,
the terms of the Credit Agreement shall control.
4.15. Replacement of Notes. Any one or more of the financial
institutions which are or become a party to the Credit Agreement as Lenders may
from time to time be replaced and, accordingly, one or more of the Notes may
from time to time be replaced, provided that the terms of the Notes following
such replacement, including the principal amount evidenced thereby, shall remain
the same. As the indebtedness secured by this Deed of Trust shall remain the
same, such replacement of the Notes shall not be construed as a novation and
shall not affect, diminish or abrogate Trustor's liability under this Deed of
Trust or the priority of this Deed of Trust.
4.16. Conditions to Exercise of Rights. Trustor hereby waives any
right it may now or hereafter have to require Agent, as a condition to the
exercise of any remedy or other right against Trustor hereunder or under any
other document executed by Trustor in
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connection with Guarantor's Liabilities: (a) to proceed against Trustor or any
other person, or against any other collateral assigned to Agent by Trustor or
any other person; (b) to pursue any other right or remedy in Agent's power; (c)
to give notice of the time, place or terms of any public or private sale of real
or personal property collateral assigned to Agent by Trustor or any other person
(other than Trustor), or otherwise to comply with Section 9-613(5) of the
Uniform Commercial Code, as adopted in the State of California, with respect to
any such personal property collateral; or (d) to make or give (except as
otherwise expressly provided in the Loan Instruments) any presentment, demand,
protest, notice of dishonor, notice of protest or other demand or notice of any
kind in connection with any of Guarantor's Liabilities or any collateral (other
than the Property) for any of Guarantor's Liabilities.
4.17. Request for Notice. Trustor requests that a copy of any Notice
of Default and Notice of Sale that may be required by law be mailed to Trustor
at its address set forth above.
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THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, Trustor has caused this instrument to be
executed by its duly authorized officer as of the day and year first above
written.
PLAYBOY ENTERPRISES
INTERNATIONAL, INC.,
a Delaware corporation
By /s/ Robert Campbell
------------------------------------
Its Senior Vice President and Treasurer
RIDER NO.1 TO DEED OF TRUST
This Rider No. 1 to Deed of Trust ("Rider No. 1") is attached to and
becomes a part of the Deed of Trust with Assignment of Rents, Security Agreement
and Fixture Filing dated March 11, 2003 (the "Deed of Trust"), among PLAYBOY
ENTERPRISES INTERNATIONAL, Inc., a Delaware corporation ("Trustor"), in favor of
FIDELITY NATIONAL TITLE INSURANCE COMPANY, as Trustee, and for the benefit of
BANK OF AMERICA, N.A., as Agent ("Agent"). The provisions in this Rider No. 1
supplement the provisions in the Deed of Trust. In the event of any conflict
between this Rider No. 1 and the Deed of Trust, the provisions of this Rider No.
1 shall control.
1. The term "Guarantor's Liabilities" shall include, without
limitation, all obligations of Trustor and/or Borrower under any Swap Contract
(as such terms are defined in the Deed of Trust).
2. The term "Event of Default" shall include, without limitation,
the following:
Swap Default. An event occurs which gives Agent, any Lender, or any
Affiliate (as defined in the Credit Agreement) of Agent or any Lender, the right
or option to terminate any Swap Contract.
3. In addition to the rights and remedies set forth in the Deed of
Trust, upon the occurrence of an Event of Default, Agent, any Lender, or any
Affiliate of Agent or any Lender, may terminate any Swap Contract or exercise
any rights provided thereunder or in connection therewith.
This Rider No. 1 is executed as of the date stated on the Deed of
Trust.
PLAYBOY ENTERPRISES
INTERNATIONAL, Inc.,
a Delaware corporation
By /s/ Robert Campbell
------------------------------------
Its Senior Vice President and Treasurer
ACKNOWLEDGMENT
STATE OF Illinois )
) SS
COUNTY OF Cook )
On March 11, 2003, before me, Ivana Del Real, a Notary Public,
personally appeared Robert Campbell, the Senior Vice President and Treasurer of
PLAYBOY ENTERPRISES INTERNATIONAL, Inc., a Delaware corporation, who proved to
me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ Ivana Del Real
----------------------------------------
Notary Public
[SEAL]
EXHIBIT A
Legal Description
Parcel 1:
All that portion of Lot 33, of Tract No. 9061, in the City of Los Angeles,
County of Los Angeles, State of California, as per map recorded in Book 121
Page(s) 64 to 66 of maps, in the office of the County Recorder of said County,
lying Southeasterly of a line parallel with and distant 40 feet Northwesterly,
measured at right angles from the Southeasterly line of said Lot 33.
Parcel 2:
Lot 34, of Tract No. 9061, in the City of Los Angeles, County of Los Angeles,
State of California, as per map recorded in Book 121 Page(s) 64 to 66 of maps,
in the office of the County Recorder of said County.
Said Parcels 1 and 2 are described as a whole as follows:
Beginning at the Southeasterly corner of said Lot 34; thence South 69(degree)
25' 00' West 486.35 feet to a point on the Northeasterly right of way line of
Mapleton Drive; thence North 59(degree) 21' 40" West along the Northeasterly
right of way line line of Mapleton Drive, a distance of 13.00 feet to the
beginning of a tangent curve, concave Northeasterly having a radius of 448.78
feet; thence Northeasterly along said curve through a central angle of
24(degree) 17' 15" an arc length 190.24 feet to the most Westerly corner of of
said Lot 34; thence North 26(degree) 21' 56" East 483.11 feet to a point in the
Southwesterly right of way line of Charing Cross Road; thence South 77(degree)
40' 30" East along the Southwesterly right of way line of Charing Cross Road a
distance of 121.65 feet to the beginning of a tangent curve, concave
Northwesterly having a radius of 80.00 feet; thence easterly and Northeasterly
along said curve through a central angel of 64(degree)40' 43" an arc length of
90.31 feet; thence South 87(degree) 29' 00" East 41.18 feet to the Northeast
corner of said Lot 34; thence South 20(degree) 35' 00" East along the Easterly
line of of said Lot 34, a distance of 426.09 feet to the point of beginning.
Assessor's Parcel No: 4359-013-025