Tax Parcel ID No. E000-1310/006
After recording please return to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
[City of Richmond, Virginia]
New York, New York 10017
Attention:
Cynthia Parker
THIS DOCUMENT WAS PREPARED OUTSIDE THE COMMONWEALTH OF VIRGINIA
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THIS IS A CREDIT LINE DEED OF TRUST
-----------------------------------
CREDIT LINE DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS, AND FIXTURE FILING
made by
MAFCO WORLDWIDE CORPORATION, Grantor,
in favor of KANAWHA LAND TITLE SERVICES, LLC,
as Trustee for the use and benefit of
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Beneficiary
Dated as of December 8, 2005
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THIS IS A CREDIT LINE DEED OF TRUST AND THE MAXIMUM AGGREGATE
AMOUNT OF
PRINCIPAL TO BE SECURED AT ANY ONE TIME BY THIS DEED OF TRUST IS
$125,000,000;
PROVIDED, HOWEVER, THE VALUE OF THE REAL ESTATE SECURED HEREBY AND
LOCATED IN
THE CITY OF RICHMOND, VIRGINIA IS $5,170,000.00. ACCORDINGLY, THE
APPLICABLE
RECORDATION TAX FOR THIS INSTRUMENT PURSUANT TO VA. CODE 58.1-803
IS CALCULATED
UPON $5,170,000.00 as a Credit Line Deed of Trust within the
meaning of Section
55-58.2 of the Code of Virginia (1950), as amended, for purposes of
and to the
extent required by such Section, (i) the name of the Beneficiaries
secured by
this Deed of Trust are JPMORGAN CHASE BANK, N.A. and the Lenders
defined herein,
and (ii) the address at which communications may be mailed or
delivered to
JPMORGAN CHASE BANK, N.A. on behalf of itself and other such
lenders is set
forth on the first page of this Deed of Trust.
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THIS INSTRUMENT COVERS GOODS WHICH ARE OR ARE TO BECOME FIXTURES
RELATED TO THE
REAL ESTATE DESCRIBED HEREIN AND IS TO BE RECORDED IN THE REAL
ESTATE RECORDS OF
RICHMOND COUNTY/CITY, VIRGINIA AND IS ALSO TO BE INDEXED IN THE
INDEX OF
FINANCING STATEMENTS AS A FIXTURE FILING IN ACCORDANCE WITH THE
UNIFORM
COMMERCIAL CODE OF THE COMMONWEALTH OF VIRGINIA. THE NAMES OF THE
DEBTOR AND THE
SECURED PARTY, THE ADDRESS OF THE SECURED PARTY FROM WHICH
INFORMATION
CONCERNING THE SECURITY INTEREST MAY BE OBTAINED, THE ADDRESS OF
THE DEBTOR AND
A STATEMENT INDICATING THE TYPES, OR DESCRIBING THE ITEMS, OF
COLLATERAL, ARE AS
DESCRIBED HEREIN, IN COMPLIANCE WITH THE REQUIREMENTS OF ARTICLE 9,
SECTION
8.9A-502 OF THE UNIFORM COMMERCIAL CODE OF THE COMMONWEALTH OF
VIRGINIA, SECTION
8.9-502 OF THE CODE OF VIRGINIA.
TABLE OF CONTENTS
Page
Background.....................................................................1
Granting
Clauses...............................................................1
Terms and
Conditions...........................................................4
1.
Defined Terms................................................4
2.
Warranty of Title............................................4
3.
Payment of Obligations.......................................5
4.
Requirements.................................................5
5.
Payment of Taxes and Other Impositions.......................5
6.
Insurance....................................................5
7.
Restrictions on Liens and Encumbrances.......................6
8.
Due on Sale and Other Transfer Restrictions..................6
9.
Condemnation/Eminent Domain..................................6
10.
Leases.......................................................7
11.
Further Assurances...........................................7
12.
Beneficiary's Right to Perform...............................7
13.
Remedies.....................................................7
14.
Right of Beneficiary to Credit Sale.........................10
15.
Appointment of Receiver.....................................11
16.
Extension, Release, etc.....................................11
17.
Security Agreement under Uniform Commercial Code;
Fixture Filing............................................12
18.
Assignment of Rents.........................................12
19.
Additional Rights...........................................13
20.
Notices.....................................................13
21.
No Oral Modification........................................13
22.
Partial Invalidity..........................................13
23.
Grantor's Waiver of Rights..................................14
24.
Remedies Not Exclusive......................................14
25.
Multiple Security...........................................15
26.
Successors and Assigns......................................16
27.
No Waivers, etc.............................................16
28.
Governing Law, etc..........................................16
29.
Certain Definitions.........................................16
30.
Duty of Beneficiary; Authority of Beneficiary...............17
31.
Last Dollars Secured; Priority..............................17
32.
Enforcement Expenses; Indemnification.......................18
33.
Release.....................................................18
34.
Incorporation By Reference..................................18
35.
Receipt of Copy.............................................19
36.
Successor Grantor...........................................19
37.
Trustee's Powers and Liabilities............................19
38.
Business or Commercial Purpose..............................20
CREDIT LINE DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS, AND FIXTURE FILING
THIS CREDIT LINE DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF
LEASES
AND RENTS, AND FIXTURE FILING, dated as of December 8, 2005 is made
by MAFCO
WORLDWIDE CORPORATION, a Delaware corporation ("Grantor"), whose
address is
Third Street and Jefferson Avenue, Camden, New Jersey 08104, in
favor of KANAWHA
LAND TITLE SERVICES, LLC, a Virginia limited liability company
("Trustee"),
whose principal place of business is 1802 Bayberry Court - Suite
305A, Richmond,
Virginia 23226 (Henrico County), Virginia, as trustee for the use
and benefit of
to JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such
capacity,
"Beneficiary"), whose address is c/o Loan and Agency Services, 111
Fannin, 10th
Floor Houston, Texas 77002. References to this "Deed of Trust"
shall mean this
instrument and any and all renewals, modifications, amendments,
supplements,
extensions, consolidations, substitutions, spreaders and
replacements of this
instrument.
Background
----------
A. Flavors Holdings Inc., a Delaware corporation, Grantor, as
Borrower, the
several banks and other financial institutions or entities from
time to time
parties thereto (collectively, the "Lenders"), and Bear Stearns
Corporate
Lending Inc., as syndication agent, and Beneficiary, are parties to
that certain
Credit Agreement, dated as of December 8, 2005 (as amended,
supplemented or
otherwise modified from time to time, the "Credit Agreement"). The
terms of the
Credit Agreement are incorporated by reference in this Deed of
Trust as if the
terms thereof were fully set forth herein.
B. Pursuant to the Credit Agreement, the Lenders have severally
agreed to
make extensions of credit to the Grantor upon the terms and subject
to the
conditions set forth therein.
C. Certain of the Qualified Counterparties may enter into Specified
Hedge
Agreements with Grantor.
D. Grantor is the owner of the fee simple estate in the parcel(s)
of real
property described on Schedule A attached hereto (the "Land"), and
owns all of
the buildings, improvements, structures, and fixtures now or
subsequently
located on the Land (the "Improvements"; the Land and the
Improvements being
collectively referred to as the "Real Estate").
E. It is a condition precedent to the obligation of the Lenders to
make
their respective extensions of credit to the Grantor under the
Credit Agreement
that Grantor shall have executed and delivered this Deed of Trust
to Trustee,
for benefit if the Beneficiary, for the ratable benefit of the
Secured Parties.
Granting Clauses
----------------
For good and valuable consideration, the receipt and sufficiency of
which
are hereby acknowledged, Grantor agrees that to secure all unpaid
principal of
and interest on the
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Loans and Reimbursement Obligations and all other obligations and
liabilities of
the Grantor (including, without limitation, interest accruing at
the then
applicable rate provided in the Credit Agreement after the maturity
of the Loans
and Reimbursement Obligations and interest accruing at the then
applicable rate
provided in the Credit Agreement after the filing of any petition
in bankruptcy,
or the commencement of any insolvency, reorganization or like
proceeding,
relating to the Grantor, whether or not a claim for post-filing or
post-petition
interest is allowed in such proceeding) to the Beneficiary or any
Lender (or, in
the case of any Specified Hedge Agreement or Specified Cash
Management
Agreement, any Affiliate of any Lender), whether direct or
indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which
may arise under, out of, or in connection with, the Credit
Agreement, this Deed
of Trust, the other Loan Documents, any Letter of Credit, any
Specified Hedge
Agreement, any Specified Cash Management Agreement or any other
document made,
delivered or given in connection with any of the foregoing, in each
case whether
on account of principal, interest, reimbursement obligations, fees,
indemnities,
costs, expenses or otherwise (including, without limitation, all
fees and
disbursements of counsel to the Beneficiary or to the Lenders that
are required
to be paid by the Grantor pursuant to the terms of any of the
foregoing
agreements) (collectively, the "Obligations");
GRANTOR HEREBY GRANTS, BARGAINS AND SELLS, CONVEYS AND ASSIGNS UNTO
THE TRUSTEE,
IN FEE SIMPLE WITH POWER OF SALE WITH DEED OF TRUST COVENANTS FOR
THE USE AND
BENEFIT OF BENEFICIARY, ALL AND SINGULAR GRANTOR'S RIGHTS, TITLES
AND INTERESTS
IN AND TO THE FOLLOWING:
(a) the Land;
(b) all right, title and interest Grantor now has or may hereafter
acquire in and to the Improvements or any part thereof, and all the
estate,
right, title, claim or demand whatsoever of Grantor, in possession
or
expectancy, in and to the Real Estate or any part thereof;
(c) all right, title and interest of Grantor in, to and under all
easements, rights of way, licenses, operating agreements, abutting
strips
and gores of land, streets, ways, alleys, passages, sewer rights,
waters,
water courses, water and flowage rights, development rights, air
rights,
mineral and soil rights, plants, standing and fallen timber, and
all
estates, rights, titles, interests, privileges, licenses,
tenements,
hereditaments and appurtenances belonging, relating or appertaining
to the
Real Estate, and any reversions, remainders, rents, issues, profits
and
revenue thereof and all land lying in the bed of any street, road
or
avenue, in front of or adjoining the Real Estate to the center line
thereof;
(d) all of the fixtures, chattels, business machines, machinery,
apparatus, equipment, furnishings, fittings, appliances and
articles of
personal property of every kind and nature whatsoever, and all
appurtenances and additions thereto and substitutions or
replacements
thereof (together with, in each case, attachments, components,
parts and
accessories) currently owned or subsequently acquired by Grantor
and now or
subsequently attached to, or contained in or used or usable in any
way in
connection with any operation or letting of the Real Estate,
including but
without limiting the generality of the foregoing, all screens,
awnings,
shades, blinds, curtains, draperies, artwork, carpets, rugs, storm
doors
and windows, furniture and furnishings, heating, electrical, and
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mechanical equipment, lighting, switchboards, plumbing,
ventilating, air
conditioning and air-cooling apparatus, refrigerating, and
incinerating
equipment, escalators, elevators, loading and unloading equipment
and
systems, stoves, ranges, laundry equipment, cleaning systems
(including
window cleaning apparatus), telephones, communication systems
(including
satellite dishes and antennae), televisions, computers, sprinkler
systems
and other fire prevention and extinguishing apparatus and
materials,
security systems, motors, engines, machinery, pipes, pumps, tanks,
conduits, appliances, fittings and fixtures of every kind and
description
(all of the foregoing in this paragraph (d) being referred to as
the
"Equipment");
(e) all right, title and interest of Grantor in and to all
substitutes
and replacements of, and all additions and improvements to, the
Real Estate
and the Equipment, subsequently acquired by or released to Grantor
or
constructed, assembled or placed by Grantor on the Real Estate,
immediately
upon such acquisition, release, construction, assembling or
placement,
including, without limitation, any and all building materials
whether
stored at the Real Estate or offsite, and, in each such case,
without any
further deed, conveyance, assignment or other act by Grantor;
(f) all right, title and interest of Grantor in, to and under all
leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or
occupancy
of the Real Estate or the Equipment or any part thereof, now
existing or
subsequently entered into by Grantor and whether written or oral
and all
guarantees of any of the foregoing (collectively, as any of the
foregoing
may be amended, restated, extended, renewed or modified from time
to time,
the "Leases"), and all rights of Grantor in respect of cash and
securities
deposited thereunder and the right to receive and collect the
revenues,
income, rents, issues and profits thereof, together with all other
rents,
royalties, issues, profits, revenue, income and other benefits
arising from
the use and enjoyment of the Trust Property (as defined below)
(collectively, the "Rents");
(g) all unearned premiums under insurance policies now or
subsequently
obtained by Grantor relating to the Real Estate or Equipment and
Grantor's
interest in and to all proceeds of any such insurance policies
(including
title insurance policies) including the right to collect and
receive such
proceeds, subject to the provisions relating to insurance generally
set
forth below; and all awards and other compensation, including the
interest
payable thereon and the right to collect and receive the same, made
to the
present or any subsequent owner of the Real Estate or Equipment for
the
taking by eminent domain, condemnation or otherwise, of all or any
part of
the Real Estate or any easement or other right therein;
(h) to the extent not prohibited under the applicable contract,
consent, license or other item unless the appropriate consent has
been
obtained, all right, title and interest of Grantor in and to (i)
all
contracts from time to time executed by Grantor or any manager or
agent on
its behalf relating to the ownership, construction, maintenance,
repair,
operation, occupancy, sale or financing of the Real Estate or
Equipment or
any part thereof and all agreements and options relating to the
purchase or
lease of any portion of the Real Estate or any property which is
adjacent
or peripheral to the Real Estate, together with the right to
exercise such
options and all leases of Equipment, (ii) all
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consents, licenses, building permits, certificates of occupancy and
other
governmental approvals relating to construction, completion,
occupancy, use
or operation of the Real Estate or any part thereof, and (iii) all
drawings, plans, specifications and similar or related items
relating to
the Real Estate; and
(i)
all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now owned
or held
or subsequently acquired by Grantor and described in the foregoing
clauses (a)
through (d) are collectively referred to as the "Premises", and
those described
in the foregoing clauses (a) through (i) are collectively referred
to as the
"Trust Property").
TO HAVE AND TO HOLD the Trust Property and the rights and
privileges hereby
granted unto Trustee, its successors and assigns IN TRUST FOREVER
for the uses
and trusts set forth herein, until the Obligations are fully paid
and performed,
provided, however, that the condition of this Deed of Trust is such
that if the
Obligations are fully paid and performed, then the estate hereby
granted shall
cease, terminate and become void but shall otherwise remain in full
force and
effect.
This Deed of Trust covers present and future advances and
re-advances, in
the aggregate amount of the obligations secured hereby, made by the
Secured
Parties for the benefit of Grantor, and the lien of such future
advances and
re-advances shall relate back to the date of this Deed of Trust.
Terms and Conditions
--------------------
Grantor further represents, warrants, covenants and agrees with
Beneficiary
and the Secured Parties as follows:
1. Defined Terms. Capitalized terms used herein (including in the
"Background" and "Granting Clauses" sections above) and not
otherwise defined
herein shall have the meanings ascribed thereto in the Credit
Agreement.
References in this Deed of Trust to the "Default Rate" shall mean
the interest
rate applicable pursuant to Section 2.14(c) of the Credit
Agreement. References
herein to the "Secured Parties" shall mean the collective reference
to (i)
Beneficiary, (ii) the Lenders (including any Issuing Lender in its
capacity as
Issuing Lender), (iii) each counterparty or party to a Specified
Hedge Agreement
or Specified Cash Management Agreement entered into with the
Borrower or Grantor
if such counterparty or party was a Lender (or an Affiliate of a
Lender) at the
time the Specified Hedge Agreement or Specified Cash Management
Agreement was
entered into, (iv) any other holders from time to time of the
Obligations, and
(v) the respective successors, indorsees, transferees and assigns
of each of the
foregoing.
2. Warranty of Title. Grantor warrants that it has good record
title in fee
simple to, or a valid leasehold interest in, the Real Estate, and
good title to,
or a valid leasehold interest in, the rest of the Trust Property,
subject only
to the matters that are set forth in Schedule B of the title
insurance policy or
policies, if any, being issued to Beneficiary to insure the lien of
this Deed of
Trust and any other lien or encumbrance as permitted by Section 7.2
of the
Credit Agreement (the "Permitted Exceptions"). Grantor shall
warrant, defend and
preserve such title and the lien of this Deed of Trust against all
claims of all
persons and entities (not including the
5
holders of the Permitted Exceptions). Grantor represents and
warrants that it
has the right to convey the Trust Property.
3. Payment of Obligations. Grantor shall pay and perform the
Obligations at
the times and places and in the manner specified in the Loan
Documents.
4. Requirements. Grantor shall comply with all covenants,
restrictions and
conditions now or later of record which may be applicable to any of
the Trust
Property, or to the use, manner of use, occupancy, possession,
operation,
maintenance, alteration, repair or reconstruction of any of the
Trust Property,
except where a failure to do so could not reasonably be expected to
have a
material adverse effect (considered both individually and together
with other
such failures) on (i) the current business, operations or condition
(financial
or otherwise) of the Grantor, (ii) the current use of the Trust
Property or
(iii) the value of the Trust Property (assuming its current use).
5. Payment of Taxes and Other Impositions. (a) Prior to the date on
which
any fine, penalty, interest or cost may be added thereto or
imposed, Grantor
shall pay and discharge all taxes, charges and assessments of every
kind and
nature, all charges for any easement or agreement maintained for
the benefit of
any of the Real Estate, all general and special assessments,
levies, permits,
inspection and license fees, all water and sewer rents and charges,
vault taxes
and all other public charges even if unforeseen or extraordinary,
imposed upon
or assessed against or which may become a lien on any of the Real
Estate, or
arising in respect of the occupancy, use or possession thereof,
together with
any penalties or interest on any of the foregoing (all of the
foregoing are
collectively referred to herein as the "Impositions"), except where
(i) the
validity or amount thereof is being contested in good faith by
appropriate
proceedings, and (ii) the Grantor has set aside on its books
adequate reserves
with respect thereto in accordance with GAAP. Upon request by
Beneficiary,
Grantor shall deliver to Beneficiary evidence reasonably acceptable
to
Beneficiary showing the payment of any such Imposition. If by law
any
Imposition, at Grantor's option, may be paid in installments
(whether or not
interest shall accrue on the unpaid balance of such Imposition),
Grantor may
elect to pay such Imposition in such installments and shall be
responsible for
the payment of such installments with interest, if any.
(b) Nothing herein shall affect any right or remedy of Beneficiary
under this Deed of Trust or otherwise, without notice or demand to
Grantor, to
pay any Imposition after the date such Imposition shall have become
delinquent,
and add to the Obligations the amount so paid, together with
interest from the
time of payment at the Default Rate. Any sums paid by Beneficiary
in discharge
of any Impositions shall be (i) a lien on the Premises secured
hereby prior to
any right or title to, interest in, or claim upon the Premises
subordinate to
the lien of this Deed of Trust, and (ii) payable on demand by
Grantor to
Beneficiary together with interest at the Default Rate as set forth
above.
6. Insurance. (a) Grantor shall maintain, with financially sound
and
reputable companies, insurance policies (i) insuring the Real
Estate against
loss by fire, explosion, theft and such other casualties as may be
reasonably
satisfactory to the Beneficiary, and (ii) insuring Grantor, the
Beneficiary and
the other Secured Parties against liability for personal injury and
property
damage relating to such Real Estate, such policies to be in such
form and
amounts and having such coverage as may be reasonably satisfactory
to the
Beneficiary. All such insurance
6
shall (i) provide that no cancellation, material reduction in
amount or material
change in coverage thereof shall be effective until at least thirty
(30) days
after receipt by the Beneficiary of written notice thereof, (ii)
name the
Beneficiary as an additional insured party or loss payee, (iii)
include
deductibles consistent with past practice or consistent with
industry practice
or otherwise reasonably satisfactory to the Beneficiary.
(b) If any portion of the Premises is located in an area identified
as
a special flood hazard area by the Federal Emergency Management
Agency or other
applicable agency, Grantor shall maintain or cause to be
maintained, flood
insurance in an amount reasonably satisfactory to Beneficiary, but
in no event
less than the maximum limit of coverage available under the
National Flood
Insurance Act of 1968, as amended.
(c) Grantor promptly shall comply with and conform in all material
respects to (i) all provisions of each such insurance policy, and
(ii) all
requirements of the insurers applicable to Grantor or to any of the
Trust
Property or to the use, manner of use, occupancy, possession,
operation,
maintenance, alteration or repair of any of the Trust Property.
Grantor shall
not use or permit the use of the Trust Property in any manner which
would permit
any insurer to cancel any insurance policy or void coverage
required to be
maintained by this Deed of Trust.
(d) If Grantor is in default of its obligations to insure or
deliver
any such prepaid policy or policies, then Beneficiary, at its
option upon 5
days' notice to Grantor, may effect such insurance from year to
year at rates
substantially similar to the rate at which Grantor had insured the
Premises, and
pay the premium or premiums therefor, and Grantor shall pay to
Beneficiary on
demand such premium or premiums so paid by Beneficiary with
interest from the
time of payment at the Default Rate.
(e) If the Trust Property, or any part thereof, shall be destroyed
or
damaged and the reasonably estimated cost thereof would exceed
$500,000, Grantor
shall give prompt notice thereof to Beneficiary. All insurance
proceeds paid or
payable in connection with any damage or casualty to the Real
Estate shall be
deemed proceeds from a Recovery Event and applied in the manner
specified in the
Credit Agreement.
(f) In the event of foreclosure of this Deed of Trust or other
transfer of title to the Trust Property, all right, title and
interest of
Grantor in and to any insurance policies then in force shall pass
to the
purchaser or grantee.
7. Restrictions on Liens and Encumbrances. Except for the lien of
this Deed
of Trust and the Permitted Exceptions, Grantor shall not further
convey,
mortgage, nor otherwise encumber the Trust Property nor create or
suffer to
exist any lien, charge or encumbrance on the Trust Property, or any
part
thereof, whether superior or subordinate to the lien of this Deed
of Trust and
whether recourse or non-recourse.
8. Due on Sale and Other Transfer Restrictions. Except as expressly
permitted under Section 7.5 of the Credit Agreement, Grantor shall
not sell,
transfer, convey or assign all or any portion of, or any interest
in, the Trust
Property.
9. Condemnation/Eminent Domain. Promptly upon obtaining knowledge
of the
institution of any proceedings for the condemnation of the Trust
Property, or
any material
7
portion thereof, Grantor will notify Beneficiary of the pendency of
such
proceedings. All awards and proceeds relating to such condemnation
shall be
deemed proceeds from a Recovery Event and applied in the manner
specified in the
Credit Agreement.
10. Leases. Except as expressly permitted under the Credit
Agreement,
Grantor shall not (a) execute an assignment or pledge of any Lease
relating to
all or any portion of the Trust Property other than in favor of
Beneficiary, or
(b) execute or permit to exist any Lease of any of the Trust
Property.
11. Further Assurances. To further assure Beneficiary's rights
under this
Deed of Trust, Grantor agrees promptly upon demand of Beneficiary
to do any act
or execute any additional documents (including, but not limited to,
security
agreements on any personalty included or to be included in the
Trust Property
and a separate assignment of each Lease in recordable form) as may
be reasonably
required by Beneficiary to confirm the lien of this Deed of Trust
and all other
rights or benefits conferred on Beneficiary by this Deed of Trust.
12. Beneficiary's Right to Perform. If Grantor fails to perform any
of the
covenants or agreements of Grantor, within the applicable grace
period, if any,
provided for in the Credit Agreement, Beneficiary, without waiving
or releasing
Grantor from any obligation or default under this Deed of Trust,
may, at any
time upon 5 days' notice to Grantor (but shall be under no
obligation to) pay or
perform the same, and the amount or cost thereof, with interest at
the Default
Rate, shall immediately be due from Grantor to Beneficiary and the
same shall be
secured by this Deed of Trust and shall be a lien on the Trust
Property prior to
any right, title to, interest in, or claim upon the Trust Property
attaching
subsequent to the lien of this Deed of Trust. No payment or advance
of money by
Beneficiary under this Section shall be deemed or construed to cure
Grantor's
default or waive any right or remedy of Beneficiary.
13. Remedies. (a) Upon the occurrence and during the continuance of
any
Event of Default, Beneficiary may immediately take such action,
without notice
or demand, as it deems advisable to protect and enforce its rights
against
Grantor and in and to the Trust Property, including, but not
limited to, the
following actions, each of which may be pursued concurrently or
otherwise, at
such time and in such manner as Beneficiary may determine, in its
sole
discretion, without impairing or otherwise affecting the other
rights and
remedies of Beneficiary:
(i) Beneficiary may proceed as if all of the Trust Property
were real property, or Beneficiary may elect to treat any of the
Trust
Property which consists of a right in action or which is property
that
can be severed from the Real Estate without causing structural
damage
thereto as if the same were personal property, and dispose of the
same
in accordance with the provisions of this Deed of Trust and
applicable
law which relate to the exercise of remedies with respect to that
portion of the Trust Property which is personal property, separate
and
apart from the sale of real property.
(ii) Beneficiary may elect to direct the Trustee to sell all
or any part of the Trust Property at public auction, for cash or
credit, upon such terms as the Trustee shall deem appropriate to
the
extent such terms are consistent with Virginia law. The Trust
Property
(or such portions thereof as the Beneficiary may elect), may be
sold
in one or more sales as determined by the Beneficiary, and this
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Deed of Trust shall survive all sales of portions of the Trust
Property until all of the Trust Property has been sold. The parties
intend that the Beneficiary and the Trustee shall be entitled to
continue exercising any and all of their respective rights and
remedies hereunder until all amounts due hereunder, under the
Credit
Agreement and any other Loan Documents have been paid in full. Any
sale of all or part of the Trust Property may be held at or, to the
extent permitted by Virginia law, away from the Trust Property.
Before
any sale at public auction is made, the Trustee shall first
advertise
the time, place and terms of such sale once a week for four (4)
successive weeks in the legal notices section of a newspaper
published
or having a general circulation in the city or county in which the
real estate is located. Such advertisements shall set forth all
matters required by law. There shall also be given, at least
fourteen
(14) days prior to such sale, written notice of the time, place and
terms of sale by certified or registered mail to the then owner of
the
Trust Property at its last known address, as such Owner and address
appear on the records of the Beneficiary and to anyone else
required
by applicable law. The Beneficiary may become the purchaser of all
or
any portion of the Trust Property so sold and in lieu of paying
cash
therefor may make settlement for the purchase price by crediting
the
sales price against the obligations of the Grantor hereunder and
under
the Credit Agreement and any other Loan Documents. No purchaser
shall
be required to see the proper application of the purchase money.
The
Trustee shall apply the proceeds of any such sale in the order
prescribed by law. The Trustee shall be entitled to reasonable
compensation (in lieu of any statutory or other fixed fee) for
their
services in connection with any sale or attempted sale, and the
amount
of such compensation shall accrue interest at the interest rate set
forth in the Credit Agreement, shall be evidenced by the Credit
Agreement, shall be payable on demand and shall be secured by this
Deed of Trust. The Trustee may elect to postpone any such sale of
all
or part of the Trust Property.
(iii) Beneficiary, or at the Beneficiary's request, the
Trustee, may elect to enter the Trust Property and take possession
thereof, and the Grantor agrees to surrender the Trust Property
promptly upon demand. The Beneficiary, or at the Beneficiary's
request, the Trustee, may (A) perform any of the covenants
hereu
