_______________________ SPACE ABOVE LINE FOR PROCESSING DATA ___________________
RETURN TO: PREPARED BY:
Xxxxx X. Xxx, Esq. Xxxxx X. Xxx, Esq.
XXXXXX & XXXXXXX LLP XXXXXX & XXXXXXX LLP
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxx 0000
Xxxxxxxxx, XX 00000
State of North Carolina County of Xxxxxxx
DEED OF TRUST, ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT
This record, in addition to covering other property: [] covers timber to be cut;
[] covers as-extracted collateral; [X] is filed as a fixture filing and covers
goods that are or are to become fixtures. The real property to which the
foregoing is related is described hereinbelow. The "Secured Party" is the
Beneficiary identified below and the "Debtor" is the Grantor identified below.
The record owner is: Grantor. This document serves as a fixture filing under the
North Carolina Uniform Commercial Code (N.C.G.S ss.25-9-502).
NOTICE: THE DEBT SECURED HEREBY IS SUBJECT TO CALL IN FULL OR THE TERMS THEREOF
BEING MODIFIED IN THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY CONVEYED.
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT ("Deed of
Trust"), entered into as of the effective date as stated in the DEED OF TRUST
SUPPLEMENT & INFORMATION SCHEDULE ("Information Schedule") attached to this Deed
of Trust, by X. X. XXXXX CO. (whether one or more, "Grantor") with a mailing
address of Xxx Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000 to SPRUILLCO,
LTD. ("Trustee"), with a mailing address of 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx
Xxxxxxxx 00000, for the benefit of XXXXX X. XXXXX, XXXX X. XXXXX and XXXXXXX X.
XXXXXXXX (collectively, the "Beneficiary"), with a mailing address of 000
Xxxxxxx Xxxxx, Xxxxxxxxxxxx, XX 00000, which address is the place to which all
notices and communications should be sent to Beneficiary regarding this Deed of
Trust.
A. Grantor desires to secure (1) the payment of the Obligations (as defined in
the INFORMATION SCHEDULE), with interest thereon, and all extensions, renewals,
modifications, amendments, substitutions and replacements thereof and therefor,
in whole or in part, (2) the payment of all other sums, with interest thereon,
advanced in accordance with the Obligations or herewith to protect the security
of this Deed of Trust, or advanced to protect the rights of Beneficiary
hereunder or under the Obligations, (3) the performance of the covenants and
agreements contained herein and (4) the performance of the covenants and
agreements contained in the Obligations and those in all documents evidencing or
securing the Obligations, by a conveyance of Xxxxxxx's interest in the lands and
improvements and a grant of the security interests hereinafter described.
B. The maximum principal amount of the Obligations that may be secured by this
Deed of Trust at any one time is an amount up to Twenty Million Dollars
($20,000,000.00). The current principal amount of the Obligations outstanding
which are secured by this Deed of Trust as of the date hereof (including any
amounts which have been advanced prior to the date hereof) is Twenty Million
Dollars ($20,000,000).
C. The Obligations shall be evidenced by one or more instruments (to include
promissory notes), supporting obligations (to include guarantees), and other
evidences of an indebtedness or other obligation owing to Beneficiary by the
person identified on the INFORMATION SCHEDULE under the heading "Obligations" as
the obligor, such evidences of indebtedness or other obligation and all
extensions, renewals, modifications, amendments, substitutions and replacements
thereof and therefor to be in a written form, the terms and conditions
(including the maturity dates of the Obligations) of which are incorporated
herein by reference, and which Obligations may contain provisions for the
adjustment of the interest rate or rates, adjustments in payments, extension or
renewal of the term or terms, among other things.
NOW, THEREFORE, in consideration of the premises and for the purpose of securing
the Obligations and the other indebtedness and obligations as aforesaid, and in
further consideration of the sum of Ten Dollars ($10) paid to Grantor by
Trustee, receipt of which is hereby acknowledged, Grantor has given, granted,
bargained, sold and conveyed, and by these presents does give, grant, bargain,
sell and convey unto Trustee, his heirs, successors and assigns, with power of
sale, for the benefit of Beneficiary and upon the representations, warranties,
covenants, terms and conditions set forth in this Deed of Trust, all of
Grantor's right, title and interest in and to (1) the parcels of land described
on EXHIBIT A, (2) the rights and benefits appurtenant to said parcels of land
and (3) the buildings and other improvements (to include manufactured homes) now
located thereon and thereunder and those which in the future may be or may come
to be located thereon and thereunder (collectively, the "Property"), together
with all equipment, fixtures, standing timber, crops grown, growing and to be
grown on the Property (to include crops that are produced on trees, vines and
bushes, and aquatic goods) and other farm products (to include livestock - born
and unborn, supplies and products of crops and livestock), oil, gas and other
minerals and as-extracted collateral owned by Grantor and that in which the
Grantor has any rights and interests, both now existing and located in, on, over
and under the Property and that which may be hereafter acquired and located as
aforesaid, whether used in connection with the ownership, possession, operation
and maintenance of the Property, or otherwise (collectively, the "Collateral"
and the Collateral includes any and all of the proceeds and products thereof,
including insurance and condemnation proceeds, accessions and additions thereto,
and replacements and substitutions therefor).
TO HAVE AND TO HOLD the Property and Collateral, with all the rights, privileges
and appurtenances thereunto belonging or appertaining to Trustee, his heirs,
successors and assigns, forever, upon the trusts and for the uses and purposes
herein set out.
Grantor covenants with Trustee that it is seized of the Property in fee, that it
is seized of the Collateral in fee, and has the right to convey its interest in
the Property and Collateral as provided herein; that title is marketable and
free and clear of all encumbrances; and that it will warrant and defend the
title to the Property and Collateral against the lawful claims of all persons
whomsoever that arise from and after the date of the stock purchase as set forth
in the Stock Purchase Agreement (defined herein), except (with respect to all of
this paragraph) for all of the exceptions set forth in the INFORMATION SCHEDULE
under the heading "Permitted Liens", or such other exhibit or schedule, if any,
attached to this Deed of Trust.
Grantor represents, warrants, covenants and agrees with Trustee and Beneficiary
as set forth above and in the Sections set forth hereinbelow:
Section 1. Payment of Amounts Due under the Obligations. Grantor shall pay when
due all amounts owing by it, and perform all other obligations required to be
performed from time to time by it, under each and all of the Obligations and
this Deed of Trust.
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Section 2. Payment of Taxes, Assessments and other Amounts; Maintenance
of Insurance.
2.1 Payment of Taxes, etc. Grantor covenants and agrees that it will pay
when due, all taxes, assessments, levies and charges upon or against the
Property and upon or against the Collateral, of every character which are now
liens thereon and any which may hereafter become liens thereon; and upon
Beneficiary's request, immediately deliver to Beneficiary official receipts
therefor. To the extent Grantor does not so pay, Beneficiary may, at its option,
pay any such taxes, assessments, levies and charges against the Property and
those against the Collateral, and the official receipts therefor shall be
conclusive evidence of payment, the amount due and validity thereof. Any amounts
so expended shall immediately become debts due by Grantor payable on demand,
shall bear interest at the Contract Rate, and their payment shall be secured by
this Deed of Trust.
2.2 Insurance. Grantor covenants and agrees that it will keep the Property
and Collateral insured against loss and damage by fire, tornado and windstorm,
and against such other hazards, events and circumstances as Beneficiary may
reasonably require, in reasonable amounts, for the benefit of Beneficiary, loss,
if any, to be made payable in the policy or policies of insurance to Beneficiary
as its interest may appear, the loss payable clauses to be in such form as
Beneficiary may reasonably require. All insurance shall be in companies
reasonably approved by Beneficiary copies of the policies and renewals thereof
shall, when issued, be immediately delivered to Beneficiary to be held by it,
and all insurance policies shall provide for at least thirty (30) days prior
written notice of cancellation to Beneficiary. Grantor will pay all premiums for
such insurance when due and if requested of Beneficiary, deliver to Beneficiary
official receipts therefor. To the extent Grantor does not so pay, Beneficiary
may, at its option, pay the same and any amounts so expended shall immediately
become debts due by Grantor payable on demand, shall bear interest at the
Contract Rate, and their payment shall be secured by this Deed of Trust. In the
event of loss, Grantor will give immediate notice by mail to Beneficiary, who
may make proof of loss if not made promptly by Grantor. The proceeds of any
insurance, or any part thereof, may be applied by Grantor, at its option, either
to the reduction of the indebtedness hereby secured in such order as Grantor so
determines in its discretion, or to the restoration or repair of the Property
and the Collateral - unless applicable law prohibits Grantor from electing
between those two options, in which event the proceeds shall be applied as
applicable law mandates.
2.3 Escrow Accounts. After Grantor's failure to pay and, if Beneficiary
requires and the Property or Collateral is not subject to a superior deed of
trust for which the Beneficiary of such has not paid, then Grantor agrees to pay
and shall pay on the first day of each month or such other day as Beneficiary
may direct, to Beneficiary or to its duly authorized representative, a sum equal
to one-twelfth of the known or estimated (by Xxxxxxxxxxx) yearly taxes,
assessments and insurance premiums on or against the Property and the
Collateral. Beneficiary shall be under no obligation to pay interest on such
payments, unless payment of interest is mandated under applicable law and then
only the minimum amount required under applicable law. Beneficiary shall hold
and apply such payments to the payment of taxes, assessments and insurance
premiums as and when due. If the total of such monthly payments shall exceed the
amount needed, the excess shall be held for future needs, unless a different
application is mandated under applicable law; but, should such monthly payments
at any time fail to provide sufficient funds to pay taxes, assessments and
insurance premiums when due, then Grantor shall, upon written demand, pay to
Beneficiary, within ten (10) days of receipt of such demand, the amount
necessary to cover the deficiency. In the event of a foreclosure sale or
deed-in-lieu thereof, Beneficiary may apply any balance remaining of the funds
accumulated for the above purposes to the payment of the indebtedness secured by
this Deed of Trust, unless such application is prohibited under applicable law.
Section 3. Maintenance of the Property. Grantor covenants and agrees that (1) it
will not commit or permit any waste to the Property and the Collateral, and will
keep the Property and Collateral in as good order, repair and condition as it is
now, reasonable wear and tear excepted, and (2) it will do and cause to be done
- and refrain from doing and causing to be done - such acts relating to the
Property and the Collateral as Beneficiary may, from time to time, reasonably
request. Beneficiary shall have the right to inspect, at all reasonable times,
the Property and Collateral.
Section 4. Assignment of Rents, Leases and Profits; Management of Property;
Appointment of Receiver. As further security for the payment of the Obligations
and the other indebtedness and obligations secured by this Deed of Trust, if and
when the Property or Collateral is not subject to a superior deed of trust,
Grantor will assign to Trustee and Beneficiary all rents, profits, revenues,
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royalties, accounts, moneys, contract rights, leases, intangible rights and
other benefits arising from, related to and otherwise connected to or flowing
from the Property and the Collateral, all of which are a part of and included as
a subset within the terms "Property" and "Collateral" (the rents, profits, etc.
are collectively, the "Rents and Profits"); and Beneficiary shall have the
absolute and unconditional right, upon and during the continuance of an Event of
Default hereunder, either by entering upon and taking possession of either or
both the Property and the Collateral, or otherwise, to rent or continue renting
the same, at any reasonable rate of rent determined by Beneficiary and to
otherwise manage and operate the Property and the Collateral in such manner as
it deems necessary or appropriate, to collect the Rents and Profits, and, after
deducting from any Rents and Profits actually collected from the management and
operation of the Property and the Collateral the costs and expenses thereof
(including, without limitation, payment of all expenses related to the Property
and the Collateral as may be required or permitted under this Deed of Trust or
which may be necessary to protect the security of this Deed of Trust, as
Beneficiary in its reasonable discretion deems appropriate), to apply the
remainder to payment of the Obligations secured hereby and any other
indebtedness and obligations secured hereby, in such order as Beneficiary may
determine, unless a specific order of application is mandated under applicable
law. Also, if and when the Property or Collateral is not subject to a prior deed
of trust and upon and during the continuance of an Event of Default, Beneficiary
shall have the absolute and unconditional right to apply for and to obtain the
appointment of a receiver or similar official for all or a portion of the
Property and the Collateral, to, among other things, manage and operate the
Property and the Collateral, or any part thereof or interest therein, and to
collect and apply the Rents and Profits as provided above. In the event of such
application, Grantor consents to the appointment of such receiver or similar
official and agrees that such receiver or similar official may be appointed
without notice to Grantor (unless notice is mandated under applicable law and
then with only such minimum notice as may be mandated under applicable law),
without regard to the adequacy of any security for the indebtedness secured
hereby and without regard to the solvency of Grantor or any other person who may
be liable for the payment of the Obligations or any other indebtedness or
obligations secured hereunder - unless thresholds for adequacy of security or
solvency are mandated by applicable law and then with only the minimum
thresholds so mandated. All expenses related to the appointment of a receiver or
other similar official hereunder shall be the responsibility of Grantor, but if
paid by Beneficiary, Grantor hereby agrees to pay to Beneficiary, immediately
and without demand, all such expenses, together with interest thereon from the
date of payment of the same at the Contract Rate. All sums so paid by
Beneficiary, and the interest thereon, shall be added to and be secured by the
lien of this Deed of Trust. This provision is subordinate to the collateral
assignment contained in the Congress Deed of Trust and any collateral assignment
executed pursuant to the Congress Deed of Trust or concerning the indebtedness
secured by the Congress Deed of Trust.
Section 5. Condemnation. Subject to the rights of any superior holder of a deed
of trust on the Property or Collateral, unless otherwise prohibited by
applicable law, Grantor covenants and agrees that in the event of a
condemnation, or other taking by eminent domain or other proceeding, of the
Property and the Collateral, or any part of or interest, right or estate in
either or both. Grantor shall have the right to apply the proceeds to the
Obligations or to acquire additional property to replace the Property and the
Collateral.
Section 6. Sale or Transfer of Property; Junior Liens. Except as provided in the
INFORMATION SCHEDULE under the heading "Jurisdiction Specific Provisions",
Grantor covenants and agrees that the sale, conveyance-in-lieu-of-condemnation,
lease, demise, further encumbrance (including, without limitation, by way of
mortgage, deed of trust, security deed, deed to secure debt, declaration of
trust, assignment, pledge or security agreement), transfer or other disposition
by Grantor, either directly or indirectly, voluntarily or involuntarily, of all
or any material part of the Property or the Collateral, or any material
interest, right or estate in either or both, without Beneficiary's prior written
consent, which may not be withheld unreasonably, shall be an Event of Default
under this Deed of Trust and shall entitle Beneficiary to exercise, at its
option, any and all rights and remedies provided to Beneficiary under this Deed
of Trust upon and during the continuance of an Event of Default; provided,
however, if Grantor has the written consent of the holder of the Congress Deed
of Trust to do such act then it shall not need the consent of Beneficiary.
Section 7. Security Agreement; Harmonization of Conflicts. Grantor hereby grants
to Beneficiary a security interest in the Collateral and any of the Property
constituting personal property for the purpose of securing the payment of the
Obligations, with interest thereon, and extensions, renewals, modifications and
amendments thereof, or substitutions and replacements therefor, in whole or in
part, the payment of all other sums, with interest thereon, at the Contract
Rate, advanced in accordance with the Obligations or hereunder to protect the
security of this Deed of Trust, or advanced to protect the rights of Beneficiary
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hereunder or under the Obligations, and to secure the performance of the
covenants and agreements contained herein and in the Obligations. This Deed of
Trust constitutes a "security agreement" with respect to the Collateral and the
Property constituting personal property as that term is now or hereafter used in
the Uniform Commercial Code as enacted in the jurisdiction whose laws govern
this Deed of Trust, and Beneficiary shall have all of the rights and remedies
provided to a secured party now or hereafter under the Uniform Commercial Code
as enacted in such jurisdiction, including, without limitation, the right to
proceed against the Collateral and the Property constituting personal property
in accordance with the provisions of the Uniform Commercial Code relating to
default and enforcement of a security interest by a secured party, or to
instruct the Trustee to proceed as to the Collateral and the Property,
including, without limitation, that which constitutes personal property, in
accordance with laws applicable to foreclosure of real estate interests in the
jurisdiction whose laws govern this Deed of Trust, as provided herein. If
Grantor has executed and delivered to Beneficiary a separate security agreement
or agreements in connection with any or all of the Obligations, that security
agreement or those security agreements and the security interests created
therein shall be in addition to and not in substitution of this Deed of Trust
and the liens and security interests created hereby and this Deed of Trust shall
be in addition to and not in substitution of the other security agreement or
agreements and the security interests created thereby. In all cases this Deed of
Trust and the aforesaid security agreement or agreements, shall be applied and
enforced in harmony with and in conjunction with each other to the end that
Beneficiary realizes fully upon its rights and remedies in each and the liens
and security interests created by each; and, to the extent conflicts exist
between this Deed of Trust and the other security agreements or records, they
shall be resolved in favor of Beneficiary for the purpose of achieving the full
realization of Beneficiary's rights and remedies and the liens and security
interests as aforesaid.
Section 8. Third Party Grantors. Any Grantor who executes this Deed of Trust but
is not a party to or obligated on any of the Indebtedness included in the
Obligations, is executing this Deed of Trust to mortgage, grant and convey
Xxxxxxx's interest in the Property and the Collateral under the terms of this
Deed of Trust and, except as otherwise provided in this Deed of Trust with
respect to obligations of Grantor hereunder or referred to in this Deed of
Trust, is not personally obligated to pay the sums secured by this Deed of Trust
over and above the value of the Property and the Collateral and the loss such
Grantor will incur from a foreclosure thereon or from delivery of a deed-in-lieu
of foreclosure.
Section 9. Legal Matters.
9.1 Compliance with Laws. Grantor represents and warrants to Beneficiary,
after due inquiry and investigation, that while Beneficiary has any interest in
or lien upon the Property, the Property and Collateral at all times hereafter
will continue to be in substantially full compliance with all applicable
federal, state and local laws, regulations, ordinances, directives, orders,
guidelines and advisory opinions, including, without limitation, (i)
environmental laws, regulations, ordinances, directives, orders, guidelines and
advisory opinions, (ii) laws, regulations, ordinances, directives, orders,
guidelines and advisory opinions relating to access to, from, in, around and
over the Property by persons with physical or other disabilities (e.g. Americans
With Disabilities Act of 1990 (42 U.S.C. ss.12101 et seq.) and regulations and
guidelines promulgated thereunder and any similarly motivated state and local
laws and regulations) and (iii) other laws, regulations, ordinances, directives,
orders, guidelines and advisory opinions relating to public health, welfare and
safety. Grantor will constantly maintain all licenses, permits and approvals
required with respect thereto, and will remain in substantially full compliance
with all of the terms, conditions and requirements of such licenses, permits and
approvals.
9.2 Notices. Grantor represents and warrants to Beneficiary that it will
promptly notify Beneficiary of any change in the nature or extent of any
hazardous substances located or maintained on, in or under the Property or used
in connection with the Property or Collateral. Grantor covenants and agrees to
immediately transmit to Beneficiary copies of any regulatory notices received
with respect to any hazardous substances affecting the Property or Collateral.
9.3 Indemnification. Grantor shall indemnify and hold Beneficiary and
Trustee harmless from and against any and all damages, penalties, fines, claims,
liens, suits, liabilities, costs (including, without limitation, clean-up
costs), judgments and expenses (including, without limitation, reasonable
attorneys', consultants' and experts' fees and expenses) of every kind and
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nature suffered by or asserted against Beneficiary or Trustee as a direct or
indirect result of: (1) any breach by Grantor of a covenant or agreement in this
SECTION 9; or (2) any requirement under any federal, state or local law,
regulation, ordinance, directive, order, guideline or advisory opinion which
requires the elimination, removal, containment or control of any hazardous
substances that are brought onto the Property after the date hereof but not
including any damages, penalties, fines, claims, liens, suits, liabilities,
costs, judgments and expenses that are caused by any Beneficiary's negligent
acts or omissions in his capacity as an employee of Grantor after the date
hereof. Grantor's obligations hereunder to Beneficiary shall not be limited by
the term of the Obligations secured hereby, and, as to any act or event
occurring prior to payment in full and satisfaction of the Obligations but after
the stock purchase as evidenced by the Stock Purchase Agreement and all other
indebtedness and obligations under this Deed of Trust, Grantor's obligations
hereunder shall continue, survive and remain in full force and effect
notwithstanding payment in full and satisfaction of the Obligations and this
Deed of Trust or foreclosure under this Deed of Trust or delivery of a
deed-in-lieu of foreclosure.
Section 10. Events of Default. Remedies Upon Default.
10.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an "Event of Default" hereunder: (1) the failure of
Grantor to make any payment due under any or all of the Obligations within three
(3) business days after such payment first becomes due; (2) the occurrence of an
event of default (other than a payment default) under any or all of the
Obligations (as such event of default is defined in the document evidencing the
applicable Obligation); (3) Grantor's breach of any of the terms or covenants
contained in this Deed of Trust or the occurrence of some other default under
this Deed of Trust; provided that Beneficiary gives notice to Grantor of such
failure identifying such notice as a default notice given pursuant to this Deed
of Trust, and such failure remains uncured for 30 days after Xxxxxxx's receipt
of such notice (or, in the case of a failure that is not capable of being cured
in such 30-day period, for such longer period as may be required for Grantor to
cure such failure acting with due diligence, but in no event exceeding 120
days); (4) the actual or threatened uninsured demolition, injury or waste to the
Property, the Collateral, or any material part of either or both, which, in the
reasonable opinion of Beneficiary, may materially impair its value; (5) the
Property, the Collateral, or any material part of either or both, or interest
therein, is attached, seized, subjected to a writ or distress warrant, or is
levied upon, or comes into the possession of any trustee, receiver or person
acting in a similar capacity and such attachment, seizure, writ or distress
warrant or levy has not been removed, discharged or rescinded within thirty (30)
days, or if Grantor is enjoined, restrained or in any way prevented by court
order from continuing to conduct all or any material part of its business
affairs, or if a judgment or other claim becomes a lien or encumbrance upon all
or any material part of the Property or Collateral or any interest therein, or
if a notice of lien, levy or assessment is filed of record with respect to the
Property or Collateral, or any material part thereof or interest therein, by any
person, and the same is not paid within thirty (30) days after Grantor receives
notice thereof, provided that none of the foregoing shall constitute an Event of
Default where such action or event is stayed or an adequate bond has been posted
pending a good faith contest by Grantor; (6) the insolvency of Grantor, or the
appointment of a receiver for, or the filing of a petition of bankruptcy by or
against Grantor; or (7) the execution or foreclosure on, or the giving of any
notice relative to the planned execution or foreclosure on any security interest
in or lien upon the Property or the Collateral, or any material part thereof, or
any interest therein, to which the security interest and lien of this Deed of
Trust is subordinate to. Notwithstanding the foregoing, the failure of Grantor
to make any payment under any or all of the Obligations shall not constitute an
Event of Default to the extent that Beneficiary is prohibited from accepting
such payment (the "Restricted Payment Amount") pursuant to the terms of the
Subordination Agreement dated as of the date hereof among Grantor, Beneficiary,
and the Senior Lender.
10.2 Rights and Remedies. Upon and during the continuance of an Event of
Default under SECTION 10.1 or any other event defined in this Deed of Trust as
an "Event of Default", Beneficiary and Trustee shall have the rights and
remedies set forth in SECTIONS 10.2.1 THROUGH 10.2.4., in addition to their
other rights and remedies set forth in this Deed of Trust.
10.2.1 Accelerate Obligations. Beneficiary shall have the right, at
its option, to declare all amounts payable under any or all of the
Obligations, as well as any or all of the other indebtedness and
obligations secured hereby that are not already due hereunder, to be
immediately due and payable without demand or any notice (unless notice is
required under any of the Obligations or by law, then such notice as may be
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required under the Obligations or by law), whereupon the same shall become
immediately due and payable, regardless of the maturity date thereof.
10.2.2 Protection of Security. Beneficiary, without any obligation on
its part to determine the validity or necessity thereof, may do and cause
to be done any one or more of the following: (1) pay the sums for which
Grantor is obligated, (2) perform or cause to be performed the obligations
of Grantor or (3) take such other actions as Beneficiary deems necessary to
maintain, protect, repair, restore and preserve the Property and the
Collateral, and the lien created by this Deed of Trust, and, in connection
therewith, Beneficiary may advance, pay or expend such sums as may be
proper or necessary for the maintenance, protection, repair, restoration
and preservation of the Property and the Collateral, to maintain insurance
(including, without limitation, title insurance), to provide security
guards and systems to protect the Property and the Collateral and intervene
in any condemnation, foreclosure and other proceedings or disputes
affecting the Property or the Collateral. Grantor hereby agrees to pay to
Beneficiary, immediately and without demand, all such sums so advanced,
paid or expended, together with interest thereon from the date of each
payment at the Contract Rate. All sums so advanced, paid or expended by
Beneficiary, and the interest thereon, shall be added to and be secured by
the lien of this Deed of Trust. Any amounts advanced, paid or expended
shall be at Beneficiary's sole option and shall not constitute a waiver of
any Event of Default or right arising from the occurrence of an Event of
Default.
10.2.3 Foreclosure. Beneficiary shall have the right, at its option,
to exercise the rights and remedies set forth in the INFORMATION SCHEDULE
under the heading "Jurisdiction Specific Provisions". In any foreclosure
sale or sales, the Beneficiary shall have the right to sell or cause to be
sold either or both the Property and the Collateral, or parts thereof or
interests therein, subject to any liens, security interests and other
encumbrances and rights which are subordinate to the lien and security
interest hereof, including without limitation, any leases which may be
subordinate hereto; and any such sale or sales shall not release Grantor or
any other person obligated on the Obligations or the other indebtedness and
obligations secured hereby, and shall not provide to them any claim or
defense in any action or proceeding brought hereunder by Beneficiary or
otherwise brought by Beneficiary to collect full payment of the
indebtedness and other obligations secured hereby.
10.2.4 Discontinuance of Proceedings; Position of Parties Restored. If
Beneficiary shall have proceeded to enforce any right or remedy under this
Deed of Trust by foreclosure, entry or otherwise and such proceedings shall
have been discontinued or abandoned for any reason, or such proceedings
shall have resulted in a final determination adverse to Beneficiary, then
and in every such case Grantor and Beneficiary shall be restored to their
former positions and rights hereunder, and all rights, powers and remedies
of Beneficiary shall continue as if no such proceedings had occurred or had
been taken.
Section 11. Miscellaneous.
11.1 Incorporation of Exhibits. All exhibits, supplements, schedules,
addenda and other attachments to this Deed of Trust are by this reference
incorporated herein and made a part hereof as if fully set forth in the body of
this Deed of Trust. The recitals set forth in this Deed of Trust are also a part
of this Deed of Trust.
11.2 Maintenance of Records by Beneficiary. Beneficiary is authorized to
maintain, store and otherwise retain evidences of the Obligations, this Deed of
Trust, any separate security agreements and other agreements executed or
delivered or to be executed or delivered by Grantor or others on Grantor's
behalf to Trustee or Beneficiary in their original, inscribed tangible form or a
record thereof in an electronic medium or other non-tangible medium which
permits such record to be retrieved in a perceivable form.
11.3 Accuracy of Information Regarding Grantor. Grantor represents to
Beneficiary the information contained in this Deed of Trust and other
information provided to Beneficiary by or on behalf of Grantor is true, accurate
and correct in all material respects and Grantor agrees to promptly inform
Beneficiary in writing of any material changes therein or any inaccuracies
thereto, such notices to be addressed to Beneficiary and mailed, postage
prepaid, to Beneficiary's address set forth herein.
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11.4 No Deductions for Taxes or Withholdings; Documentary Taxes. All
payments made by Grantor under this Deed of Trust shall be made by Grantor free
and clear of and without deduction for any and all present and future taxes,
levies, charges, deductions and withholdings. In addition, to the extent not
prohibited by applicable law and notwithstanding who is liable for payment of
the taxes or fees, Grantor shall pay upon demand any stamp tax, documentary tax,
intangible tax and other taxes, levies and charges of any jurisdiction with
respect to the execution, delivery, registration, performance and enforcement of
this Deed of Trust.
11.5 Marshalling of Assets. Grantor hereby waives, to the extent permitted
by law, the benefit of all homestead, appraisement, valuation, stay, extension,
reinstatement and redemption laws now in force and any hereafter arising and in
force and all rights of marshalling in the event of any sale hereunder of the
Property, the Collateral or any part or any interest in either or both.
11.6 Waiver of Statutory Rights. Grantor waives any right to require
Beneficiary to bring any action against any other person or to require that
resort be had to any security or to any balances of any deposit or other
accounts on the books of Beneficiary in favor of any other person; and, without
limiting the foregoing, but in furtherance thereof, Grantor waives any rights
Grantor otherwise might have or have had under the statutory provisions
identified in the INFORMATION SCHEDULE under the heading "Jurisdiction Specific
Provisions", or any other laws that require or may require Beneficiary to
recover against some other person, or to realize upon any security which
Beneficiary holds for the Obligations.
11.7 Jury; Venue; Jurisdiction. This Deed of Trust shall be deemed to have
been executed and delivered in the jurisdiction listed on the INFORMATION
SCHEDULE as the jurisdiction whose laws govern this Deed of Trust, regardless of
where the signatories may be located at the time of execution and shall be
governed by and construed in accordance with the substantive laws of such
jurisdiction, excluding, however, the conflict of law and choice of law
provisions thereof. BENEFICIARY AND GRANTOR, TO THE EXTENT PERMITTED BY LAW,
WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING FROM OR RELATED TO THIS
DEED OF TRUST.
11.8 Cumulative Rights, etc. The rights, powers and remedies of Beneficiary
under this Deed of Trust shall be in addition to all rights, powers and remedies
given to Beneficiary at law and in equity, and in any other agreement, all of
which rights, powers and remedies shall be cumulative and may be exercised by
Beneficiary from time to time and at any number of times successively,
concurrently and alternatively without impairing Beneficiary's rights under this
Deed of Trust.
11.9 No Waiver; No Invalidity. No delay or forbearance by Beneficiary in
exercising any or all of its rights and remedies hereunder or rights and
remedies otherwise afforded by law or in equity shall operate as a waiver
thereof or preclude the exercise thereof during the continuance of any Event of
Default as set forth herein or in the event of any subsequent Event of Default
hereunder. Also, no act or inaction of Beneficiary under this Deed of Trust
shall be deemed to constitute or establish a "course of performance or dealing"
that would require Beneficiary to so act or refrain from acting in any
particular manner at a later time under similar or dissimilar circumstances.
Wherever possible, each provision of this Deed of Trust shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Deed of Trust shall be prohibited or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the remaining
provisions of this Deed of Trust.
11.10 No Oral Change. Subject to the exercise by Beneficiary of its rights
and remedies as set forth in this Deed of Trust and without limiting any of such
rights and remedies, this Deed of Trust, and any provisions hereof, may not be
modified, amended, waived, extended, changed, discharged or terminated orally or
by any act or failure to act on the part of Grantor or Beneficiary, but only by
an agreement in writing, signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
11.11 No Usury. Beneficiary does not intend to and shall not reserve,
charge or collect interest, fees or charges hereunder in excess of the maximum
rates or amounts permitted by applicable law. If any interest, fees or charges
are reserved, charged or collected in excess of the maximum rates or amounts, it
shall be construed as a mutual mistake by Beneficiary, Grantor and the person
making the payment if different from Grantor, and appropriate adjustments shall
8
be made by Beneficiary and to the extent paid, the excess shall be returned to
the person making such a payment.
11.12 Power of Attorney; Financing Statements. Grantor does hereby
irrevocably constitute and appoint Beneficiary its true and lawful attorney with
full power of substitution, for it and in its name, place and stead, to execute,
deliver or file such agreements, documents, notices, financing statements and
records as Beneficiary, in its reasonable discretion, deems necessary to effect
the terms and conditions of this Deed of Trust and to otherwise protect the
security of the liens and security interests created by this Deed of Trust; and,
to the extent Beneficiary reasonably deems necessary, to make public in
financing statements or other public filings such information regarding Grantor
as Beneficiary reasonably deems necessary, including, without limitation,
federal tax identification numbers, social security numbers and other
identifying information. The foregoing appointment is and the same shall be
coupled with an interest in favor of Beneficiary.
11.13 Payment of Expenses. Without limiting any other provision of this
Deed of Trust relating to Grantor's payment of costs and expenses incurred by
Beneficiary and those incurred on behalf of Beneficiary, but in addition
thereto, Grantor shall pay to Beneficiary, on demand, any and all costs and
expenses, including, without limitation, reasonable legal expenses and
reasonable attorneys' fees, fees of legal assistants and fees and expenses of
other professionals and service providers, incurred or paid by Beneficiary and
those incurred or paid on behalf of Beneficiary in doing any one or more of
reasonably protecting its interest in the Property and the Collateral,
reasonably collecting any amount payable hereunder or secured hereby and
reasonably enforcing its rights hereunder with respect to the Property and the
Collateral (including, without limitation, commencing any foreclosure action or
prosecuting or defending any legal or equitable proceeding), together with
interest thereon at the Contract Rate from the date paid or incurred by or on
behalf of Beneficiary until such costs and expenses are paid by Grantor. All
sums so paid or expended by Beneficiary, and the interest thereon, shall be
added to and be secured by the lien of this Deed of Trust.
11.14 Successors and Assigns. The covenants, terms and conditions herein
contained shall bind, and the benefits and powers shall inure to, the respective
heirs, executors, administrators, successors and assigns of the parties hereto,
as well as any persons who become bound to this Deed of Trust as a debtor, but
nothing herein contained shall alter or negate the provisions of SECTION 6. The
term "Beneficiary" shall include any payee of the Obligations or other
indebtedness or obligations hereby secured and any permitted transferee (as
determined by the Stock Pledge Agreement between and among Beneficiary, Grantor
and other parties dated of even date herewith ("STOCK PURCHASE AGREEMENT") or
assignee thereof, whether by operation of law or otherwise.
11.15 Notices. All notices, certificates, requests for information and
other communications hereunder shall be deemed given when mailed by registered
or certified mail, postage prepaid, return receipt requested, addressed to the
addresses of the parties as set forth in this Deed of Trust. Grantor, Trustee
and the Beneficiary may, by written notice given hereunder, designate a
different address where communications should be sent.
11.16 Use and Application of Terms. In using and applying the various
terms, provisions and conditions in this Deed of Trust, the following shall
apply: (1) the terms "hereby", "hereof", "herein", "hereunder", and any similar
words, refer to this Deed of Trust; (2) words in the masculine gender mean and
include correlative words of the feminine and neuter genders and words importing
the singular numbered meaning include the plural number, and vice versa; (3)
words importing persons include firms, companies, associations, general
partnerships, limited partnerships, limited liability partnerships, limited
liability limited partnerships, limited liability companies, trusts, business
trusts, corporations and other legal organizations, including public and
quasi-public bodies, as well as individuals; (4) the use of the terms
"including" or "included in", or the use of examples generally, are not intended
to be limiting, but shall mean, without limitation, the examples provided and
others that are not listed, whether similar or dissimilar; (5) the phrase "costs
and expenses", or variations thereof, shall include, without limitation,
reasonable attorneys' fees and fees of legal assistants, and reasonable fees of
accountants, engineers, surveyors, appraisers and other professionals or experts
- and all references to attorneys' fees or fees of legal assistants, or fees of
accountants, engineers, surveyors, appraisers or other professionals or experts
shall mean reasonable fees; (6) as the context requires, the word "and" may have
a joint meaning or a several meaning and the word "or" may have an inclusive
meaning or an exclusive meaning; (7) the term "subsidiary" means any registered
organization or other organization (i) the majority (by number of votes) of the
outstanding voting interests of which is at the time owned or controlled by
Grantor, or by one or more subsidiaries of Grantor, or Grantor and one or more
9
subsidiaries of Grantor, or (ii) otherwise controlled by or within the control
of Grantor or any subsidiary; (8) all terms used in this Deed of Trust that are
not defined in this Deed of Trust or in the Obligations secured hereby, but are
defined in the Uniform Commercial Code in effect in the jurisdiction whose laws
govern this Deed of Trust, shall have the meaning ascribed to such terms from
time to time in said Uniform Commercial Code; (9) any reference contained in
this Deed of Trust to specific statutes or laws shall include any successor
statutes or laws, as the case may be; (10) headings and captions used in this
Deed of Trust are for convenience only, and shall not be used to interpret,
construe, define, limit or expand the terms and conditions of this Deed of
Trust; (11) this Deed of Trust shall not be applied, interpreted and construed
more strictly against a person because that person or that person's attorney
drafted this Deed of Trust; and (12) "Deed of Trust" means this Deed of Trust,
Assignment of Rents and Security Agreement, together with any and all
extensions, renewals, amendments, modifications, restatements, substitutions and
replacements hereof or herefor.
11.17 Cancellation and Period of Deed of Trust. If at any time during the
period of this Deed of Trust there is no indebtedness outstanding under any of
the Obligations, and all indebtedness and other obligations due and owing under
this Deed of Trust and the Obligations, whether by Grantor, some other person or
Grantor and some other person (jointly and severally), have been paid and
satisfied in full, Beneficiary will, upon written request of Grantor and at
Grantor's costs and expense if permitted by applicable law, cause the Trustee to
execute and deliver to Grantor a reconveyance or satisfaction of this Deed of
Trust. Unless earlier cancelled as provided in the preceding sentence and
without extending the due date of any payment and the date of performance of any
obligation under any of the Obligations and under this Deed of Trust as set
forth herein and therein, and assuming no other provision in this Deed of Trust
specifically provides to the contrary, the period of this Deed of Trust
(including its lien and security interest) and the period by which all of the
terms and conditions of this Deed of Trust are required to be finally and fully
performed shall be a date thirty (30) years from the effective date of this Deed
of Trust.
11.18 Stock Purchase Agreement. Notwithstanding anything to the contrary
contained herein, any representation or warranty made by the Grantor shall be
limited to the period of time commencing on the date Grantor obtained the stock
of X. X. Xxxxx Co. pursuant to the Stock Purchase Agreement and nothing in this
Deed of Trust shall be deemed to limit any provisions or duties of the
Beneficiary set forth in the Stock Purchase Agreement or any employment
agreement between the Grantor and any Beneficiary. MJS Acquisition Company
acquired the stock under said Stock Purchase Agreement, had X. X. Xxxxx Co.
merged into it and then it changed its name to X. X. Xxxxx Co. The Note (as
defined herein) was executed by MJS Acquisition Company prior to the merger and
name change and is a valid obligation of Grantor.
(SIGNATURES BEGIN ON THE NEXT PAGE, FOLLOWED BY INFORMATION
SCHEDULE, ATTACHMENTS, ETC.)
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The undersigned has executed this Deed of Trust as of the effective date stated
on the INFORMATION SCHEDULE.
X. X. XXXXX CO.
By: /s/ Xxxxx X. Xxxxx
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Print Name: Xxxxx X. Xxxxx
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Title: President
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11
DEED OF TRUST SUPPLEMENT
& INFORMATION SCHEDULE
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Subject Information
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Effective Date: Date: October 3, 2003
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Grantor: Full Legal Name: X. X. XXXXX CO.
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Street Address: One Soffe Drive
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P.O. Box:
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City: Fayetteville
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State: North Carolina
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Zip Code: 28302
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Type of Organization: Corporation
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State of Organization: North Carolina
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Jurisdiction
Organization No.:
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Chief Executive Office:
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Beneficiaries: Full Name: Xxxxx X. Xxxxx
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Street Address: 000 Xxxxxxx Xxxxx
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P.O. Box:
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City: Fayetteville
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State: North Carolina
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Zip Code: 28302
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Full Name: Xxxx X. Xxxxx
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Street Address: 000 Xxxxxxx Xxxxx
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P.O. Box:
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City: Fayetteville
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State: North Carolina
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Zip Code: 28302
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Full Name: Xxxxxxx X. Xxxxxxxx
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Street Address: 000 Xxxxxxx Xxxxx
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P.O. Box:
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City: Fayetteville
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State: North Carolina
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Zip Code: 28302
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OBLIGATIONS: In this Deed of Trust the term "Obligations" shall mean, and this
Deed of Trust secures payment and performance of, among other
indebtedness and obligations as provided herein, each and all of
the following: (1) the indebtedness evidenced by the promissory
note dated as of the date hereof from MJS Acquisition Company to
Beneficiary, and extensions, renewals, modifications, amendments,
substitutions and replacements therefor and thereof, in whole and
in part ("Note"), (2) the obligation of Grantor to pay the
Additional Consideration (as defined in the Stock Purchase
Agreement) to Beneficiary, and (3) the obligations under the
Security Agreement executed by Grantor in favor of Beneficiary
dated of even date herewith; (4) the obligations under the Pledge
Agreement in favor of Beneficiary executed by Delta Apparel, Inc.
dated of even date herewith.
------------------------ ------------------------ --------------------------------------------------------------------
------------------------ ------------------------ ----- --------------------------------------------------------------
Permitted Liens: 1. The Senior Lien (as defined in that certain Subordination
Agreement, dated as of October 3, 2003, among Grantor, Delta
Apparel, Inc., Beneficiary and Senior Lender, as the same
may be amended, restated, supplemented or otherwise modified
from time to time) subject to the terms and conditions set
forth therein, all security interests, mortgages, pledges,
liens, charges, and other encumbrances that exist as of the
date hereof and are not satisfied and released on the date
hereof, and (i) liens securing the payment of taxes,
assessments or other governmental charges or levies either
not yet overdue or the validity of which are being contested
in good faith by appropriate proceedings diligently pursued
and available to Grantor and with respect to which adequate
reserves have been set aside on its books; (ii)
non-consensual statutory liens (other than liens securing
the payment of taxes) arising in the ordinary course of
Grantor's business to the extent: (a) such liens secure
Indebtedness which is not overdue or (b) such liens secure
indebtedness relating to claims or liabilities which are
fully insured and being defended at the sole cost and
expense and at the sole risk of the insurer or being
contested in good faith by appropriate proceedings
diligently pursued and available to Grantor, in each case
prior to the commencement of foreclosure or other similar
proceedings and with respect to which adequate reserves have
been set aside on its books; and (iii)zoning restrictions,
easements, licenses, covenants and other restrictions
affecting the use of Property in place on the date hereof or
which do not interfere in any material respect with the use
of such Property or ordinary conduct of the business of
Grantor as presently conducted thereon or materially impair
the value of the Property which may be subject thereto.
------------------------ ------------------------ ----- --------------------------------------------------------------
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Jurisdiction whose State of North Carolina
Laws Govern Deed of
Trust:
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JURISDICTION SPECIFIC PROVISIONS
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1. N/A
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2. REMEDIES - FORECLOSURE UNDER POWER OF SALE, ETC.: Upon and during the continuance of an Event of Default
under SECTION 11.1 or any other event defined in this Deed of Trust as an "Event of Default", on the
application of Beneficiary, Trustee shall be obligated, and is hereby authorized and empowered, to expose
at one or more sales and sell the Property through public auction for cash and the Collateral, if any, at
public or private sales for cash, after first having complied with all then applicable requirements of
North Carolina law relating to sales under power of sale. Upon such sales, Trustee shall convey title to
the purchaser. Beneficiary shall have the right to bid at any sale thereunder through a credit bid
against the Obligations, or otherwise. Trustee may require the successful bidder at any sale to deposit
immediately with Trustee cash or certified funds in an amount not to exceed twenty-five percent (25%) of
the bid, provided notice of such requirement is contained in the advertisement of the sale. Trustee may
reject the bid if the deposit is not immediately made, and thereupon Trustee may declare the next highest
bidder to be the purchaser. Such deposit shall be refunded in case a resale is had; otherwise, it shall
be applied to the purchase price. If Collateral is sold hereunder, it need not be at the place of sale.
The published notice of public sale, however, shall state the time and place where the Collateral may be
inspected prior to sale. In the event a proceeding to exercise the power of sale contained herein is
begun but not completed, Grantor shall pay all expenses incurred by Trustee and a partial commission
computed as follows: one-fourth of the hereinafter-specified commission prior to Trustee's issuance of a
notice of hearing on the right to foreclose and one-half of the hereinafter-specified commission after the
issuance of such notice and prior to sale. Such expenses and partial commission may be paid by
Beneficiary on behalf of Grantor but, in any event, shall be secured by this Deed of Trust. The foregoing
shall in no way be construed to limit the powers of sale or restrict the discretion Trustee may have under
the provisions of Article 2A of Chapter 45 of the North Carolina General Statutes, as the same may from
time to time be amended, or such other laws as Beneficiary or Trustee may be proceeding under, including,
without limitation, the laws relating to judicial foreclosure if such is determined to be either the
necessary or appropriate process to follow in foreclosing on the lien of this Deed of Trust.
Each legal, equitable or contractual right, power and remedy of Beneficiary or Trustee now or hereafter
provided herein or by law or otherwise shall be cumulative and concurrent and shall be in addition to every
other right, power and remedy. The exercise or beginning of the exercise of any one or more of such
rights, powers and remedies shall not preclude the simultaneous or later exercise of any or all such
other rights, powers and remedies and without limiting the foregoing, Trustee may sell the Property and
Collateral separately or together, as a whole or in parts or parcels, at one or more sales conducted at
different times and places. Unless a different order of application is mandated under applicable law,
proceeds derived from any sale as provided above shall be applied to pay, first, costs and expenses,
including, without limitation, Trustee's reasonable commission calculated using standard hourly rates
in the event of sale, reasonable attorneys' fees and fees of legal assistants, as well as fees of other
professionals such as accountants, reasonable auctioneers' fees if such expenses have been incurred,
and any other expenses or advances made or incurred in the protection of the rights of Trustee or in the
pursuit of any remedy hereunder; second, to taxes and assessments due and unpaid, if Trustee deems it
appropriate to do so; third, to the payment of any indebtedness and other obligations (including,
without limitation, principal, interest, fees, premiums, penalties, charges and costs and expenses on the
Obligations) secured by this Deed of Trust in such order as may be directed by Xxxxxxxxxxx; and fourth,
the balance, if any, to the person or persons entitled thereto, or if a conflict exists as to the
person or persons entitled thereto, to the Clerk of Superior Court of the county in which the foreclosure
sale was held.
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3. JOINDER BY TRUSTEE: The Trustee shall not be required to join in a modification, amendment or other change
to this Deed of Trust and the lack of joinder by the Trustee shall not negate, impair or void this Deed of
Trust, or this Deed of Trust as modified, amended or changed.
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4. SUBSTITUTION OF TRUSTEE. Beneficiary shall at any time have the irrevocable right to remove Trustee
herein named without notice or cause and to appoint his successor by an instrument in writing, duly
acknowledged, in such form as to entitle such written instrument to be recorded in North Carolina. In the
event of the death, cessation of business, termination of existence or resignation of Trustee herein
named, Beneficiary shall have the right to appoint his successor by such written instrument. Any Trustee
so appointed shall be vested with the title to the Property or the Collateral and shall possess all the
powers, duties and obligations herein conferred on Trustee in the same manner and to the same extent as
though he were named herein as Trustee.
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GRANTOR'S INITIALS: _________________________ GRANTOR'S INITIALS: __________________________
ACKNOWLEDGMENTS TO
DEED OF TRUST
STATE OF
-----------------------------------
COUNTY OF
----------------------------------
I, a Notary Public for the County and State aforesaid, do hereby certify that
------------------------------------------------------ personally came before me
this day and acknowledged that he/she is the
-----------------------------------
of X. X. Xxxxx Co., a North Carolina corporation, and that he/she, as
, being authorized to do so, executed the
----------------------------------
foregoing on behalf of the corporation.
Witness my hand and official seal, this the day of
---------------------------
,
------------------ ----------------.
My Commission Expires:
----------------- -------------------------------------
Notary Public
(Affix Notary Seal)
EXHIBIT A
TO DEED OF TRUST
(Description Of Property)
