EXHIBIT 4.15
EXECUTION COPY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Cravath, Swaine & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
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DEED OF TRUST, WITH ASSIGNMENT OF LEASES AND RENTS,
FIXTURE FILING AND SECURITY AGREEMENT
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DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, FIXTURE FILING AND SECURITY
AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, FIXTURE
FILING AND SECURITY AGREEMENT dated as of April 30, 1998 (this "Deed
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of Trust"), by Jafra Cosmetics International, Inc., a Delaware
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corporation, having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Grantor"), to TitleServ Agency of New
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York City, Inc., as trustee ("Trustee") for the benefit of Credit
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Suisse First Boston, a bank organized under the laws of Switzerland,
acting through its New York branch (the "Beneficiary"), having an
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office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as
Collateral Agent under the Credit Agreement (as defined).
W I T N E S S E T H T H A T :
A. Reference is made to the Credit Agreement dated as of April 30, 1998,
(and as the same may be amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among CDRJ Investments (Lux) S.A., a Luxembourg
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societe anonyme (the "Parent"), Grantor, Jafra Cosmetics International, S.A. de
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C.V., a company organized under the laws of the United Mexican States (the
"Other Borrower"), Beneficiary and such other respective entities that from time
to time become parties thereto pursuant to which Grantor has requested that
Beneficiary make term loans and revolving credit loans in an aggregate principal
amount of $90,000,000 (the "Loans") to Grantor and the Other Borrower for the
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purpose of (a) financing the Acquisition, (b) providing funds for the payment of
certain fees and expenses incurred in connection therewith and (c) general
corporate expenses. Each term used herein and not otherwise defined herein
shall have the meaning given to it in the Credit Agreement.
B. The obligations of the Beneficiary to make the Loans under the Credit
Agreement are conditioned upon, among other things, the execution and delivery
by the Grantor of this Deed of Trust in the form hereof, to secure (a) the due
and punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, to the extent permitted under
Applicable Law) on the Loans to Grantor when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, and (ii)
all other monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, to the extent permitted under
Applicable
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Law), of the Grantor under the Credit Agreement, this Deed of Trust and the
other Loan Documents to which the Grantor is or is to be a party, (b) the due
and punctual performance of all covenants, agreements, obligations and
liabilities of the Grantor under or pursuant to the Credit Agreement, this Deed
of Trust and the other Loan Documents, and (c) the payment of such additional
sums and the performance of all other obligations now or hereafter owing from
Grantor to Beneficiary, whether otherwise secured or not, payable to or
otherwise acquired by Beneficiary, when the document evidencing such obligation
specifically recites the recording information appearing on this Deed of Trust
and that it is intended to be secured hereby (all the obligations referred to in
this paragraph B being referred to collectively, as the "Obligations").
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C. This Deed of Trust secures not only existing indebtedness, but also
future or additional advances made pursuant hereto or to the Credit Agreement,
whether such advances are obligatory or optional and whether such advances are
readvances after payments permitted under the Credit Agreement.
D. Pursuant to the requirements of the Credit Agreement, the Grantor is
entering into this Deed of Trust to create a security interest in the Trust
Property (as defined herein) to secure the performance and payment by the
Grantor of the Obligations. The Credit Agreement also requires the granting by
Borrowers (other than Grantor) of deeds of trust creating security interests in
certain property (other than the Trust Property) to secure the performance of
the Obligations.
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Granting Clauses
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NOW THEREFORE, IN CONSIDERATION OF the foregoing and in order to secure (A)
the due and punctual payment and performance of the Obligations, (B) the due and
punctual payment by the Grantor of all real estate taxes and insurance premiums
relating to the Trust Property and (C) all disbursements made by Beneficiary for
the payment of real estate taxes, common area charges or insurance premiums, all
fees, expenses or advances in connection with or relating to the Trust Property
pursuant to the Credit Agreement and the other Loan Documents, and interest on
such disbursements and other amounts not timely paid in accordance with the
terms of the Credit Agreement, this Deed of Trust and the other Loan Documents,
(D) the due and punctual payment and performance of the Grantor's obligations
under the Fee and Guarantee Agreement, dated as of the date hereof, among The
Chase Manhattan Bank, the Grantor and related entities and (E) unless otherwise
agreed to in writing by the applicable counterparty thereto, the due and
punctual payment and performance of all obligations of the Grantor under each
Hedging Agreement entered into with any counterparty (whether or not a Lender or
an Affiliate thereof) (the obligations specified in clauses (a) through (E),
collectively, the "Mortgaged Obligations"), Grantor hereby grants, conveys,
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mortgages, assigns and pledges to the Trustee, IN TRUST FOREVER, with power of
sale, for the benefit of Beneficiary, a security interest in, all the following
described property, excluding any and all property and assets excluded from the
definition of "Collateral" (and each defined term used in the definition of such
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term) in the Security Agreement (the "Trust Property") whether now owned or held
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or hereafter acquired:
(1) all Grantor's right, title and interest in all the fee estate in
the land more particularly described on Exhibit A hereto (the "Land"),
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together with all rights appurtenant thereto, including the easements over
certain other adjoining land granted by any easement agreements,
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covenant or restrictive agreements, if any, and all air rights, mineral
rights, water rights, oil and gas rights and development rights, if any, of
every kind and description relating thereto, including, without limitation,
any water rights, and also together with all of the other easements,
rights, privileges, interests, hereditaments and appurtenances thereunto
belonging or in anyway appertaining and all of the estate, right, title,
interest, claim or demand whatsoever of Grantor therein and in the streets
and ways adjacent thereto, either in law or in equity, in possession or
expectancy, now or hereafter acquired (the "Premises");
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(2) all Grantor's right, title and interest in all buildings,
improvements, structures, paving, parking areas, roads, utilities,
walkways, landscaping and other infrastructure and betterments now or
hereafter erected or located upon the Land, and all fixtures of every kind
and type affixed to the Premises or attached to or forming part of any
structures, buildings or improvements and replacements thereof now or
hereafter erected or located upon the Land (the "Improvements");
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(3) all Grantor's right, title and interest in all apparatus, movable
appliances, building materials, equipment, fittings, furnishings,
furniture, machinery and other articles of tangible personal property of
every kind and nature, and replacements thereof, now or at any time
hereafter placed upon or used in any way in connection with the use,
enjoyment, occupancy or operation of the Improvements or the Premises,
including all of Grantor's books and records relating thereto and including
all pumps, tanks, goods, machinery, tools, equipment, lifts (including fire
sprinklers and alarm systems, fire prevention or control systems, cleaning
rigs, air conditioning, heating, boilers, refrigerating, electronic
monitoring, water, loading, unloading,
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lighting, power, sanitation, waste removal, entertainment, communications,
computers, recreational, window or structural, maintenance, truck or car
repair and all other equipment of every kind), restaurant, bar and all
other indoor or outdoor furniture (including tables, chairs, booths,
serving stands, planters, desks, sofas, racks, shelves, lockers and
cabinets), bar equipment, glasses, cutlery, uniforms, linens, memorabilia
and other decorative items, furnishings, appliances, supplies, inventory,
rugs, carpets and other floor coverings, draperies, drapery rods and
brackets, awnings, venetian blinds, partitions, chandeliers and other
lighting fixtures, freezers, refrigerators, walk-in coolers, signs (indoor
and outdoor), computer systems, cash registers and inventory control
systems, and all other apparatus, equipment, furniture, furnishings, and
articles used in connection with the use or operation of the Improvements
or the Premises, excluding any and all property and assets excluded from
the definition of "Collateral" (and each defined term used in the
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definition of such term) in the Security Agreement, it being understood
that the enumeration of any specific articles of property shall in no way
result in or be held to exclude any items of property not specifically
mentioned (the property referred to in this subparagraph (3), the "Personal
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Property");
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(4) all Grantor's right, title and interest in all general intangibles
relating to design, development, operation, management and use of the
Premises or the Improvements, all certificates of occupancy, entitlements,
tract maps, zoning variances, building, use or other permits, approvals,
authorizations and consents obtained from and all materials prepared for
filing or filed with any Governmental Authority in connection with the
development, use, operation or management of the Premises and Improvements,
all construction, service, engineering, consulting,
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leasing, architectural and other similar contracts concerning the design,
construction, management, operation, occupancy and/or use of the Premises
and Improvements, all architectural drawings, plans, specifications, soil
tests, feasibility studies, appraisals, environmental studies, engineering
reports and similar materials relating to any portion of or all of the
Premises and Improvements, all payment and performance bonds or warranties
or guarantees relating to the Premises or the Improvements, all to the
extent assignable (the "Permits, Plans and Warranties");
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(5) Grantor's interest in and rights under any and all now or
hereafter existing leases or licenses (under which Grantor is landlord or
licensor) and subleases (under which Grantor is sublandlord), concession,
management, mineral or other agreements of a similar kind that permit the
use or occupancy of the Premises or the Improvements for any purpose in
return for any payment, or the extraction or taking of any gas, oil, water
or other minerals from the Premises in return for payment of any fee, rent
or royalty, including the leases described in Schedule A to this Deed of
Trust (collectively, "Leases"), and all agreements or contracts for the
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sale or other disposition of all or any part of the Premises or the
Improvements, now or hereafter entered into by Grantor, together with all
charges, fees, income, issues, profits, receipts, rents, revenues or
royalties payable thereunder ("Rents");
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(6) all Grantor's right, title and interest in and to all real estate
tax refunds and all proceeds of the conversion, voluntary or involuntary,
of any of the Trust Property into cash or liquidated claims ("Proceeds"),
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including Proceeds of insurance maintained by the Grantor and condemnation
awards, any awards that may become due by reason of the taking by eminent
domain or any transfer in lieu thereof of the whole or any part of the
Premises or Improvements
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or any rights appurtenant thereto, and any awards for change of grade of
streets, together with any and all moneys now or hereafter on deposit for
the payment of real estate taxes, assessments or common area charges levied
against the Trust Property, unearned premiums on policies of fire and other
insurance maintained by the Grantor covering any interest in the Trust
Property or required by the Credit Agreement;
(7) all choses in action and causes of action and other intangible
personal property of the Grantor, of every kind and nature, including
corporate or other business records, indemnification claims, contract
rights, goodwill, registrations, franchises and any letter of credit,
guarantee, claim, security interest or other security held by or granted to
the Grantor to secure payment by any Person of any of the accounts
receivable or the performance by any purchaser or tenant under any lease of
Trust Property or any contract or other agreement for the sale of Trust
Property; and
(8) all Grantor's right, title and interest in and to all extensions,
improvements, betterments, renewals, substitutes and replacements of and
all additions and appurtenances to, the Land, the Premises, the
Improvements, the Personal Property, the Permits, Plans and Warranties, the
Leases, and any of the other tangible or intangible property described
above, whether now owned or hereinafter acquired by or released to the
Grantor or constructed, assembled or placed by the Grantor on the Land, the
Premises or the Improvements, and all conversions of the security
constituted thereby, immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case may be, and
in each such case, without any further mortgage, deed of trust, conveyance,
assignment or other act by the Grantor, all of which shall become subject
to the lien of this
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Deed of Trust as fully and completely, and with the same effect, as though
now owned by the Grantor and specifically described herein.
TO HAVE AND TO HOLD the Trust Property unto the Trustee, its successors and
assigns, for the benefit of Beneficiary, forever, subject only to the liens set
forth in Schedule 6.02(a) of the Credit Agreement (the "Permitted Encumbrances")
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and to satisfaction and cancelation as provided in Section 3.04. IN TRUST
NEVERTHELESS, upon the terms and trust herein set forth for the benefit and
security of the Beneficiary.
ARTICLE I
Representations, Warranties and Covenants of Grantor
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Grantor agrees, covenants, represents and/or warrants as follows:
SECTION 1.01. Title. (a) Grantor has insurable title to an indefeasible
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fee estate in the Land and Improvements subject to no lien, charge or
encumbrance other than the Permitted Encumbrances, and this Deed of Trust is and
will remain a valid and enforceable first and prior lien on the Premises,
Improvements and the Rents subject only to, in each case, the Permitted
Encumbrances. The Permitted Encumbrances do not materially interfere with the
current use, enjoyment or operation of the Trust Property.
(b) Except as set forth on Schedule A hereto, there are no leases affecting
Trust Property. Each Lease is in full force and effect, and, except as set
forth on Schedule A hereto or in any Tenant Estoppel Certificate, Grantor has
not given, nor to Grantor's knowledge has it received, any uncured or unwaived
notice of default with respect to any material obligation under any Lease. Each
Lease is subject to no lien, charge or encumbrance other than this Deed of Trust
and the Permitted Encumbrances. Grantor has not
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received any written notice of any pending condemnation proceeding affecting the
Trust Property or any sale or disposition thereof in lieu of condemnation except
as would not reasonably be expected to have a material adverse effect on the
Trust Property. Grantor is not obligated under any right of first refusal,
option or other contractual right to sell, assign or otherwise dispose of any
Trust Property or any interest therein.
(c) All easement agreements, covenant or restrictive agreements,
supplemental agreements and any other instruments hereinabove referred to and
mortgaged hereby (collectively, the "Agreements") are and will remain valid,
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subsisting and in full force and effect, unless the failure to remain valid,
subsisting and in full force and effect, individually or in the aggregate, would
not reasonably be expected to have a material adverse effect on the Trust
Property, and Grantor is not in default thereunder and has fully performed the
material terms thereof required to be performed through the date hereof, and has
no knowledge of any default thereunder or failure to fully perform the terms
thereof by any other party, nor of the occurrence of any event that after notice
or the passage of time or both will constitute a default thereunder. Except as
otherwise permitted by the Credit Agreement, Grantor is in compliance, and shall
comply, with all Agreements and requirements of law (including land use and
zoning ordinances, regulations and restrictions) affecting the Trust Property,
except where the absence of such compliance could not reasonably be expected to
have a material adverse effect on the Trust Property.
(d) Grantor has good and lawful right and full power and authority to
mortgage the Trust Property and will forever warrant and defend its title to the
Trust Property, the rights of Beneficiary therein under this Deed of Trust and
the validity and priority of the lien of this Deed of Trust thereon against the
claims of all persons and parties except those permitted under the Credit
Agreement.
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(e) This Deed of Trust, when duly recorded in the appropriate public
records and when financing statements are duly filed in the appropriate public
records, will create a valid, perfected and enforceable lien upon and security
interest in all the Trust Property and there are not as of the date hereof,
defenses or offsets to this Deed of Trust that will be asserted by Grantor or
its Affiliates (or any third party defense or offset now known to Grantor or its
Affiliates).
SECTION 1.02. Credit Agreement; Certain Amounts. (a) This Deed of Trust is
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given pursuant to the Credit Agreement. Each and every term and provision of
the Credit Agreement including the rights, remedies, obligations, covenants,
conditions, agreements, indemnities, representations and warranties of the
parties thereto shall be considered as if a part of this Deed of Trust and are
incorporated herein by this reference and to the extent there is a specific
conflict between the terms hereof and the terms of the Credit Agreement, the
terms of the Credit Agreement shall control.
(b) If any remedy or right of Trustee or Beneficiary pursuant hereto is
acted upon by Trustee or Beneficiary or if any actions or proceedings (including
any bankruptcy, insolvency or reorganization proceedings) are commenced in which
Trustee or Beneficiary is made a party and is obliged to defend or uphold or
enforce this Deed of Trust or the rights of Trustee or Beneficiary hereunder or
the terms of any Lease, or if a condemnation proceeding is instituted affecting
the Trust Property, Grantor will pay all reasonable sums, including reasonable
attorneys' fees and disbursements, incurred by Trustee or Beneficiary related to
the exercise of any remedy or right of Trustee or Beneficiary pursuant hereto or
for the reasonable expense of any such action or proceeding together with all
statutory or other costs, disbursements and allowances, interest thereon from
the date of demand for payment thereof at the applicable rate specified in
Section 2.07 of the Credit Agreement
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(the "Default Interest Rate"), and such sums and the interest thereon shall, to
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the extent permissible by law, be a lien on the Trust Property prior to any
right, title to, interest in or claim upon the Trust Property attaching or
accruing subsequent to the recording of this Deed of Trust and shall be secured
by this Deed of Trust to the extent permitted by law. Any payment of amounts due
under this Deed of Trust not made on or before the due date for such payments
shall accrue interest daily without notice from the due date until paid at the
Default Interest Rate, and such interest at the Default Interest Rate shall be
immediately due upon demand by Trustee or Beneficiary.
SECTION 1.03. Payment of Taxes, Liens and Charges. (a) Except as may be
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permitted by the Credit Agreement, Grantor will pay and discharge from time to
time prior to the time when the same shall become delinquent, and before any
interest or penalty accrues thereon or attaches thereto, all taxes of every kind
and nature, all general and special assessments, levies, permits, inspection and
license fees, all water and sewer rents, all vault charges, and all other public
charges, and all service charges, common area charges, private maintenance
charges, utility charges and all other private charges, whether of a like or
different nature, in all cases, if imposed upon or assessed against the Trust
Property or any part thereof or upon the Rents from the Trust Property or
arising in respect of the occupancy, use or possession thereof.
(b) In the event of the passage of any state, Federal, municipal or other
governmental law, order, rule or regulation subsequent to the date hereof (i)
deducting from the value of real property for the purpose of taxation any lien
or encumbrance thereon or in any manner changing or modifying the laws now in
force governing the taxation of this Deed of Trust or debts secured by mortgages
or deeds of trust (other than laws governing income, franchise and similar taxes
generally) or the manner of collecting taxes thereon and (ii) imposing a tax to
be paid by Beneficiary, either directly or indirectly, on this Deed of Trust or
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any payments due hereunder or to require an amount of taxes to be withheld or
deducted herefrom, Grantor will promptly notify Beneficiary of such event. In
such event Grantor shall (i) agree to enter into such further instruments as may
be reasonably necessary or desirable to obligate Grantor to make any applicable
additional payments and (ii) Grantor shall make such additional payments.
(c) At any time that an Event of Default shall occur hereunder and be
continuing, or if required by any law applicable to Grantor or to Beneficiary,
Beneficiary shall have the right to direct Grantor to make an initial deposit on
account of real estate taxes and assessments, insurance premiums and common area
charges, levied against or payable in respect of the Trust Property in advance
and thereafter semi-annually, each such deposit to be equal to one-half of any
such annual charges estimated in a reasonable manner by Beneficiary in order to
accumulate with Beneficiary sufficient funds to pay such taxes, assessments,
insurance premiums and charges.
SECTION 1.04. Payment of Closing Costs. Except as otherwise set forth in
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the Credit Agreement, Grantor shall pay all costs in connection with, relating
to or arising out of the preparation, execution and recording of this Deed of
Trust, including title company premiums and charges, inspection costs, survey
costs, recording fees and taxes, reasonable attorneys', engineers', and
consultants' fees and disbursements and all other similar reasonable expenses of
every kind.
SECTION 1.05. Alterations and Waste; Plans. (a) Grantor will not,
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without the written consent of Beneficiary (i) alter or demolish or remove in
whole or in part any Improvements or (ii) erect any additions to the existing
Improvements, except where such alterations, removals, or additions, as the case
may be, would not reasonably be expected to have a material adverse effect on
the Trust Property. Grantor will not commit any waste on the Trust Property or
make any alteration to, or change in the use of, the Trust
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Property except as may be permitted under the Credit Agreement and where such
waste, alteration or change would not reasonably be expected to have a material
adverse effect on the Trust Property. Grantor will maintain and operate the
Improvements and Personal Property in good repair, working order and condition,
reasonable wear and tear excepted.
(b) To the extent the same exist on the date hereof or are obtained in
connection with Improvements permitted by the Credit Agreement, Grantor shall
maintain a complete set of final plans, specifications, blueprints and drawings
for the Trust Property either at the Trust Property or in a particular office at
the headquarters of Grantor within the continental United States.
SECTION 1.06. Insurance. Grantor will keep or cause to be kept the Trust
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Property insured against such risks, and in the manner, required by Section 5.06
of the Credit Agreement.
SECTION 1.07. Casualty and Condemnation. (a) Except as provided in
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clause (b) below and subject to the following sentence, in connection with any
casualty or condemnation of any Trust Property, the Grantor shall have all
rights to negotiate and settle, and receive the proceeds of, any claim or award
in connection therewith. Notwithstanding the foregoing sentence, the Grantor
agrees to comply with the provisions of Section 2.13 of the Credit Agreement in
connection with any mandatory prepayment of the Loans.
(b) Upon the happening and during the continuance of an Event of
Default, the Beneficiary shall have the right (i) to negotiate and settle any
claim or award in connection with any casualty or condemnation of the Trust
Property and (ii) to receive the proceeds of any claim or award in connection
with a casualty or condemnation of the Trust Property. After the occurrence and
during the continuance of an Event of Default, if the Grantor shall receive any
award or claim in connection with a condemnation or taking of
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the Trust Property, the Grantor shall hold such funds in trust for the benefit
of the Beneficiary and shall promptly turn such proceeds over to the Beneficiary
in the form received. The Beneficiary shall apply such proceeds to the payment
in full of the Mortgaged Obligations.
SECTION 1.08. Assignment of Leases and Rents. (a) Grantor hereby
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irrevocably and absolutely grants, transfers and assigns to the Trustee for the
benefit of Beneficiary all of its right title and interest in all Leases,
together with any and all extensions and renewals thereof for purposes of
securing and discharging the performance by Grantor of the Mortgaged
Obligations. Grantor has not assigned or executed any assignment of, and will
not assign or execute any assignment of, any Lease or the Rents payable
thereunder to anyone other than to the Trustee for the benefit of Beneficiary.
(b) Without Beneficiary's prior written consent, not to be unreasonably
withheld, conditioned or delayed, unless otherwise permitted under the Credit
Agreement, Grantor will not (i) enter into any Lease, (ii) modify, amend,
terminate or consent to the cancelation or surrender of any Lease or (iii)
consent to an assignment of any tenant's interest in any Lease or to a
subletting thereof.
(c) Subject to Section 1.08(d), Grantor hereby assigns and transfers to the
Trustee for the benefit of Beneficiary all of Grantor's right, title and
interest in and to the Rents now or hereafter arising from each Lease heretofore
or hereafter made or agreed to by Grantor, it being intended that this
assignment establish, subject to Section 1.08(d), an absolute transfer and
assignment of all Rents and all Leases to Beneficiary and not merely to grant a
security interest therein. Subject to Section 1.08(d), Beneficiary may in
Grantor's name and stead (with or without first taking possession of any of the
Trust Property personally or by receiver as provided herein) operate the Trust
Property and rent, lease or let all or any
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portion of any of the Trust Property to any party or parties at such rental and
upon such terms as Beneficiary shall, in its sole discretion, determine, and may
collect and have the benefit of all of said Rents arising from or accruing at
any time thereafter or that may thereafter become due under any Lease.
(d) So long as an Event of Default shall not have occurred and be
continuing, Beneficiary will not exercise any of its rights under Section
1.08(c), and Grantor is hereby granted a revocable license to receive and
collect the Rents accruing under any Lease; but after the happening and during
the continuance of any Event of Default, Beneficiary may, at its option, revoke
such license and receive and collect all Rents to be held as additional
collateral and applied as set forth in Section 2.08. Grantor hereby irrevocably
authorizes and directs each tenant, if any, and each successor, if any, to the
interest of any tenant under any Lease, respectively, to rely upon any notice of
a claimed Event of Default sent by Beneficiary to any such tenant or any of such
tenant's successors in interest, and thereafter to pay Rents to Beneficiary
without any obligation or right to inquire as to whether an Event of Default
actually exists and even if some notice to the contrary is received from the
Grantor, who shall have no right or claim against any such tenant or successor
in interest for any such Rents so paid to Beneficiary. Each tenant or any of
such tenant's successors in interest from whom Beneficiary or any officer,
agent, attorney or employee of Beneficiary shall have collected any Rents, shall
be authorized to pay Rents to Grantor only after such tenant or any of their
successors in interest shall have received written notice from Beneficiary that
the Event of Default is no longer continuing, unless and until a further notice
of an Event of Default is given by Beneficiary to such tenant or any of its
successors in interest.
(e) Beneficiary will not become a mortgagee in possession as a result of
its exercise of any of its rights or remedies under this Section 1.08 with
respect
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to the Leases or Rents. In addition, Beneficiary shall not be responsible or
liable for performing any of the obligations of the landlord under any Lease,
for any waste by any tenant, or others, for any dangerous or defective
conditions of any of the Trust Property, for negligence in the management,
upkeep, repair or control of any of the Trust Property or any other act or
omission by any other person.
(f) Grantor shall furnish to Beneficiary, within 30 days after a request by
Beneficiary to do so, a written statement containing the names of all tenants,
subtenants and concessionaires of the Premises or Improvements, the terms of any
Lease, the space occupied and the rentals or license fees payable thereunder.
SECTION 1.09. Restrictions on Transfers and Encumbrances. Except as
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permitted by the Credit Agreement, Grantor shall not, directly or indirectly,
sell, convey, alienate, assign, lease, sublease, license, mortgage, pledge,
encumber or otherwise transfer any interest in the Land or the Improvements or
create, consent to or suffer the creation of any lien (other than the Permitted
Encumbrances), charges or any form of encumbrance upon any interest in or any
part of the Trust Property, or be divested of its title to the Trust Property or
any interest therein in any manner or way, whether voluntarily or involuntarily
(other than resulting from a condemnation), or engage in any common,
cooperative, joint, time-sharing or other congregate ownership of all or part of
the Trust Property.
SECTION 1.10. Security Agreement. This Deed of Trust is both a mortgage
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of real property and a grant of a security interest in personal property, and
shall constitute and serve as a "Security Agreement" and a "fixture filing"
within the meaning of the uniform commercial code as adopted in the state
wherein the Premises are located ("UCC"). Grantor has hereby granted unto
---
Beneficiary a security interest in and to all the Trust Property described in
this Deed of Trust
17
that is not real property as further security for the payment and performance of
the Mortgaged Obligations, and this Deed of Trust shall constitute a financing
statement under the UCC, with Grantor as the "debtor" and Beneficiary as the
"secured party". Simultaneously with the recording of this Deed of Trust,
Grantor has filed or will file UCC financing statements, and will file
continuation statements prior to the lapse thereof, at the appropriate offices
in the state in which the Premises are located to perfect the security interest
granted by this Deed of Trust in all the Trust Property that is not real
property. Grantor hereby appoints Beneficiary as its true and lawful
attorney-in-fact and agent, for Grantor and in its name, place and stead, in any
and all capacities, to execute any document and to file the same in the
appropriate offices to perfect the security interest contemplated by the
preceding sentence (to the extent it may lawfully do so), and to perform each
and every act and thing reasonably requisite and necessary to be done to perfect
the security interest contemplated by the preceding sentence. Prior to the
occurrence of an Event of Default, Beneficiary shall provide Grantor with the
reasonable ability to take the actions required by the previous sentence before
acting pursuant to the power of attorney granted pursuant hereto. Beneficiary
shall have all rights with respect to the part of the Trust Property that is the
subject of a security interest afforded by the UCC in addition to, but not in
limitation of, the other rights afforded Beneficiary hereunder and under the
Security Agreement.
SECTION 1.11. Filing and Recording. Grantor will cause this Deed of
---------------------
Trust, any other security instrument creating a security interest in or
evidencing the lien hereof upon the Trust Property and each instrument of
further assurance to be filed, registered or recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien hereof upon, and the security interest
of Beneficiary in, the Trust Property. Grantor will pay all filing,
registration or recording fees, and all reasonable expenses incidental
18
to the execution and acknowledgment of this Deed of Trust, any mortgage
supplemental hereto, any security instrument with respect to the Personal
Property, and any instrument of further assurance and all Federal, state, county
and municipal recording, documentary or intangible taxes and other taxes,
duties, imposts, assessments and charges arising out of or in connection with
the execution, delivery and recording of this Deed of Trust, any mortgage
supplemental hereto, any security instrument with respect to the Personal
Property or any instrument of further assurance.
SECTION 1.12. Further Assurances. Upon demand by Beneficiary, Grantor
-------------------
will, at the cost of Grantor and without expense to Trustee or Beneficiary, do,
execute, acknowledge and deliver all such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment, transfers and assurances as
Beneficiary shall from time to time reasonably require for the better assuring,
conveying, assigning, transferring and confirming unto Beneficiary the property
and rights hereby conveyed or assigned or intended now or hereafter so to be, or
which Grantor may be or may hereafter become bound to convey or assign to
Beneficiary, or for carrying out the intention or facilitating the performance
of the terms of this Deed of Trust, or for filing, registering or recording this
Deed of Trust, and on demand, Grantor will also execute and deliver and hereby
appoints Beneficiary as its true and lawful attorney-in-fact and agent, for
Grantor and in its name, place and stead, in any and all capacities, to execute
and file to the extent it may lawfully do so, one or more financing statements,
chattel mortgages or comparable security instruments reasonably requested by
Beneficiary to evidence more effectively the lien hereof upon the Personal
Property and to perform each and every act and thing requisite and necessary to
be done to accomplish the same.
SECTION 1.13. Additions to Trust Property. All right, title and interest
----------------------------
of Grantor in and to all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and
19
appurtenances to, the Trust Property hereafter acquired by or released to
Grantor or constructed, assembled or placed by Grantor upon the Premises or the
Improvements, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement
or conversion, as the case may be, and in each such case without any further
mortgage, conveyance, assignment or other act by Grantor, shall become subject
to the lien and security interest of this Deed of Trust as fully and completely
and with the same effect as though now owned by Grantor and specifically
described in the grant of the Trust Property above, but at any and all times
Grantor will execute and deliver to Beneficiary any and all such further
assurances, mortgages, conveyances or assignments thereof as Beneficiary may
reasonably require for the purpose of expressly and specifically subjecting the
same to the lien and security interest of this Deed of Trust.
SECTION 1.14. No Claims Against Trustee or Beneficiary. Nothing contained
-----------------------------------------
in this Deed of Trust shall constitute any consent or request by Trustee or
Beneficiary, express or implied, for the performance of any labor or services or
the furnishing of any materials or other property in respect of the Trust
Property or any part thereof, nor as giving Grantor any right, power or
authority to contract for or permit the performance of any labor or services or
the furnishing of any materials or other property in such fashion as would
permit the making of any claim against Trustee or Beneficiary in respect
thereof.
SECTION 1.15. Fixture Filing. Certain of the Trust Property is or will
---------------
become "fixtures" (as that term is defined in the UCC) on the Land, and this
Deed of Trust upon being filed for record in the real estate records of the
county wherein such fixtures are situated shall operate also as a financing
statement filed as a fixture filing in accordance with the applicable provisions
of said UCC upon such of the Trust Property that is or may become fixtures.
20
ARTICLE II
Defaults and Remedies
---------------------
SECTION 2.01. Events of Default. Any Event of Default under the Credit
------------------
Agreement (as such term is defined therein) shall constitute an Event of Default
under this Deed of Trust.
SECTION 2.02. Demand for Payment. If an Event of Default shall occur and
-------------------
be continuing, then, upon written demand of Beneficiary, Grantor will pay to
Beneficiary all amounts due hereunder and such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
attorneys' fees, disbursements and expenses incurred by Trustee or Beneficiary
and Trustee or Beneficiary shall be entitled and empowered to institute an
action or proceedings at law or in equity for the collection of the sums so due
and unpaid, to prosecute any such action or proceedings to judgment or final
decree, to enforce any such judgment or final decree against Grantor and to
collect, in any manner provided by law, all moneys adjudged or decreed to be
payable.
SECTION 2.03. Rights To Take Possession, Operate and Apply Revenues. (a)
------------------------------------------------------
If an Event of Default shall occur and be continuing, Grantor shall, upon demand
of Beneficiary, forthwith surrender to Beneficiary actual possession of the
Trust Property and, if and to the extent not prohibited by applicable law,
Beneficiary itself, or by such officers or agents as it may appoint, may then
enter and take possession of all the Trust Property without the appointment of a
receiver or an application therefor, exclude Grantor and its agents and
employees wholly therefrom, and have access to the books, papers and accounts of
Grantor.
(b) If Grantor shall for any reason fail to surrender or deliver the Trust
Property or any part thereof after such demand by Beneficiary, Beneficiary may
to the extent not prohibited by applicable law, obtain a judgment or decree
conferring upon Beneficiary
21
the right to immediate possession or requiring Grantor to deliver immediate
possession of the Trust Property to Beneficiary, to the entry of which judgment
or decree Grantor hereby specifically consents. Grantor will pay to Beneficiary,
upon demand, all reasonable expenses of obtaining such judgment or decree,
including reasonable compensation to Beneficiary's attorneys and agents with
interest thereon at the Default Interest Rate subject to Section 2.07 of the
Credit Agreement; and all such expenses and compensation shall, until paid, be
secured by this Deed of Trust.
(c) Upon every such entry or taking of possession, Beneficiary may, to the
extent not prohibited by applicable law, hold, store, use, operate, manage and
control the Trust Property, conduct the business thereof and, from time to time,
(i) make all necessary and proper maintenance, repairs, renewals, replacements,
additions, betterments and improvements thereto and thereon, (ii) purchase or
otherwise acquire additional fixtures, personalty and other property, (iii)
insure or keep the Trust Property insured, (iv) manage and operate the Trust
Property and exercise all the rights and powers of Grantor to the same extent as
Grantor could in its own name or otherwise with respect to the same, or (v)
enter into any and all agreements with respect to the exercise by others of any
of the powers herein granted Beneficiary, all as may from time to time be
directed or determined by Beneficiary to be in its best interest and Grantor
hereby appoints Beneficiary as its true and lawful attorney-in-fact and agent,
for Grantor and in its name, place and stead, in any and all capacities, to
perform any of the foregoing acts. Following and during the continuance of an
Event of Default, Beneficiary may collect and receive all the Rents, issues,
profits and revenues from the Trust Property, including those past due as well
as those accruing thereafter, and, after deducting (i) all expenses of taking,
holding, managing and operating the Trust Property (including reasonable
compensation for the services of all persons employed for such purposes),
22
(ii) the reasonable costs of all such maintenance, repairs, renewals,
replacements, additions, betterments, improvements, purchases and acquisitions,
(iii) the reasonable costs of insurance, (iv) such taxes, assessments and other
similar charges as Beneficiary may at its option pay, (v) other proper charges
upon the Trust Property or any part thereof and (vi) the reasonable
compensation, expenses and disbursements of the attorneys and agents of
Beneficiary, Beneficiary shall apply the remainder of the moneys and proceeds so
received first to the payment of the Beneficiary for the satisfaction of the
Mortgaged Obligations, and second, if there is any surplus, to Grantor, subject
to the entitlement of others thereto under applicable law.
SECTION 2.04. Right To Cure Grantor's Failure to Perform. Should Grantor
-------------------------------------------
fail in the payment, performance or observance of any term, covenant or
condition required by this Deed of Trust or the Credit Agreement (with respect
to the Trust Property), subject to the terms of the Credit Agreement,
Beneficiary may pay, perform or observe the same, and all payments made or costs
or expenses incurred by Beneficiary in connection therewith shall be secured
hereby and shall be, without demand, immediately repaid by Grantor to
Beneficiary with interest thereon at the Default Interest Rate, subject to
Section 2.07 of the Credit Agreement. Beneficiary shall be the judge using
reasonable discretion of the necessity for any such actions and of the amounts
to be paid. Beneficiary is hereby empowered to enter and to authorize others to
enter upon the Premises or the Improvements or any part thereof for the purpose
of performing or observing any such defaulted term, covenant or condition
without having any obligation to so perform or observe and without thereby
becoming liable to Grantor, to any person in possession holding under Grantor or
to any other person.
SECTION 2.05. Right to a Receiver. If an Event of Default shall have
--------------------
occurred and be continuing, Beneficiary, as a matter of right and without notice
to
23
Grantor or to anyone claiming under Grantor, and without regard to the then
value of the Trust Property or any other security in favor of Beneficiary or the
interest of Grantor therein, shall have the right to apply to any court having
jurisdiction to appoint a receiver or receivers of the Trust Property, or any
portion thereof, and Grantor hereby irrevocably consents to such appointment and
waives notice of any application therefor. Grantor shall pay to Beneficiary upon
demand all reasonable expenses, including receiver's fees, reasonable attorneys'
fees and disbursements, costs and agents' compensation incurred pursuant to the
provisions of this Section 2.05; and all such expenses shall be secured by this
Deed of Trust and shall be, without demand, immediately repaid by Grantor to
Beneficiary with interest thereon at the Default Interest Rate.
SECTION 2.06. Foreclosure and Sale. (a) If an Event of Default shall
---------------------
occur and be continuing, Beneficiary may commence a judicial action to foreclose
this Deed of Trust or commence procedures to foreclose this Deed of Trust non-
judicially in accordance with the procedures of the State of California.
(b) Should Beneficiary elect to foreclose by exercise of the power of
sale contained herein, Beneficiary shall notify Trustee and shall, if
required, deposit with Trustee the original or a certified copy of this
Deed of Trust, and such other documents, receipts and evidences of
expenditures made and secured hereby as Trustee may require.
(c) Upon receipt of such notice from Beneficiary, Trustee shall cause
to be recorded and delivered to Grantor such notice as may then be required
by law and by this Deed of Trust. Trustee shall, without demand on Grantor,
after lapse of such time as may then be required by law and after
recordation of such notice of default and after notice of sale has been
given as required by law, sell the Trust Property at the
24
time and place of sale fixed by it in said notice of sale, either as a
whole or in separate lots or parcels or items as Trustee shall deem
expedient, and in such order as it may determine, at public auction to the
highest bidder for cash in lawful money of the United States payable at the
time of sale. Trustee shall deliver to the purchaser or purchasers at such
sale its good and sufficient deed or deeds conveying the property so sold,
but without any covenant or warranty, express or implied. The recitals in
such deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including, without limitation, Grantor,
Trustee or Beneficiary, may purchase at such sale, and Grantor hereby
covenants to warrant and defend the title of such purchaser or purchasers.
(d) Trustee may postpone the sale of all or any portion of the Trust
Property from time to time in accordance with the laws of the State of
California.
(e) To the fullest extent allowed by law, Grantor hereby expressly
waives any right which it may have to direct the order in which any of the
Trust Property shall be sold in the event of any sale or sales pursuant to
this Deed of Trust.
(f) Beneficiary may from time to time rescind any notice of default
or notice of sale before any Trustee's sale as provided above in accordance
with the laws of the State of California. The exercise by Beneficiary of
such right of rescission shall not constitute a waiver of any breach or
default then existing or subsequently occurring, or impair the right of
Beneficiary to execute and deliver to Trustee, as above provided, other
declarations or notices of default to satisfy the obligations of this Deed
of Trust or secured hereby, nor otherwise affect any provision, covenant or
condition of any other Loan Document or any of the rights, obligations or
25
remedies of Trustee or Beneficiary hereunder or thereunder.
(g) Any foreclosure or other sale of less than the whole of the Trust
Property or any defective or irregular sale made hereunder shall not
exhaust the power of foreclosure or of sale provided for herein; and
subsequent sales may be made hereunder until the Mortgaged Obligations have
been satisfied, or the entirety of the Trust Property has been sold.
(h) If an Event of Default shall occur and be continuing, Trustee or
Beneficiary may instead of, or in addition to, exercising the rights
described in Section 2.06(a) above and either with or without entry or
taking possession as herein permitted, proceed by a suit or suits in law or
in equity or by any other appropriate proceeding or remedy (i) to
specifically enforce payment of some or all of the Mortgaged Obligations,
or the performance of any term, covenant, condition or agreement of this
Deed of Trust or any other Loan Document or any other right, or (ii) to
pursue any other power, right or remedy under applicable law whether or not
specifically or generally granted or described in this Deed of Trust.
Nothing contained herein shall be construed to impair or to restrict such
powers, rights and remedies or to preclude any procedures or process
otherwise available to trustees or beneficiaries under deeds of trust in
the State of California. Trustee and Beneficiary, and each of them, shall
be entitled to enforce the payment and performance of any indebtedness or
obligations secured hereby and to exercise all rights and powers under this
Deed of Trust or under any other Loan Document or other agreement or any
laws now or hereafter in force, notwithstanding the fact that some or all
of the indebtedness and obligations secured hereby may now or hereafter be
otherwise secured, whether by mortgage, deed of trust, pledge, lien,
assignment or otherwise. Neither the acceptance of this Deed
26
of Trust nor its enforcement, whether by court action or pursuant to the
power of sale or other powers contained herein, shall prejudice or in any
manner affect Trustee's or Beneficiary's right to realize upon or enforce
any other rights or security now or hereafter held by Trustee or
Beneficiary. Trustee and Beneficiary, and each of them, shall be entitled
to enforce this Deed of Trust and any other rights or security now or
hereafter held by Beneficiary or Trustee in such order and manner as they
or either of them may in their absolute discretion determine.
SECTION 2.07. Other Remedies. (a) In case an Event of Default shall occur
---------------
and be continuing, Beneficiary may also exercise, to the extent not prohibited
by law, any or all of the remedies available to a secured party under the UCC.
(b) In connection with a sale of the Trust Property or any Personal
Property and the application of the proceeds of sale as provided in Section
2.08, Beneficiary shall be entitled to enforce payment of and to receive up to
the principal amount of the Mortgaged Obligations, plus all other charges,
payments and costs due under this Deed of Trust, and to recover a deficiency
judgment against Grantor only (to the extent permitted by law) for any portion
of the aggregate principal amount of the Mortgaged Obligations remaining unpaid,
with interest at the rates set forth in the Credit Agreement.
SECTION 2.08. Application of Sale Proceeds and Rents. After any
---------------------------------------
foreclosure sale of all or any of the Trust Property, Trustee or Beneficiary
shall receive the proceeds of sale, no purchaser shall be required to see to the
application of the proceeds and Trustee or Beneficiary shall apply the proceeds
of the sale together with any Rents that may have been collected
27
and any other sums that then may be held by Trustee or Beneficiary under this
Deed of Trust as follows:
FIRST, to the payment of the reasonable costs and expenses of such
sale, including compensation to Trustee or to Beneficiary's attorneys and
agents, and of any judicial proceedings wherein the same may be made, and
of all expenses, liabilities and advances made or incurred by Beneficiary
under this Deed of Trust, together with interest at the Default Interest
Rate on all advances made by Beneficiary, including all taxes or
assessments (except any taxes, assessments or other charges subject to
which the Trust Property shall have been sold) and the cost of removing any
encumbrance (except any Lien permitted under the Credit Agreement);
SECOND, to the Beneficiary for the satisfaction of the Mortgaged
Obligations; and
THIRD, to the person or persons legally entitled thereto.
The Beneficiary shall have absolute discretion as to the time of application of
any such proceeds, moneys or balances in accordance with this Deed of Trust.
Upon any sale of the Trust Property by the Trustee or Beneficiary (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Trustee or Beneficiary or of the officer making the sale
shall be a sufficient discharge to the purchaser or purchasers of the Trust
Property so sold and such purchaser or purchasers shall not be obligated to see
to the application of any part of the purchase money paid over to the Trustee or
Beneficiary or such officer or be answerable in any way for the misapplication
thereof.
SECTION 2.09. Grantor as Tenant Holding Over. If after any foreclosure
-------------------------------
sale by Trustee or Beneficiary Grantor remains in possession of any of the Trust
Property, at Beneficiary's election Grantor shall be
28
deemed a tenant holding over and shall forthwith surrender possession to the
purchaser or purchasers at such sale or be summarily dispossessed or evicted
according to provisions of law applicable to tenants holding over.
SECTION 2.10. Waiver of Appraisement, Valuation, Stay, Extension and
------------------------------------------------------
Redemption Laws. Grantor waives, to the extent not prohibited by law and
----------------
subject to the Credit Agreement, (i) the benefit of all laws now existing or
that hereafter may be enacted providing for any appraisement of any portion of
the Trust Property, (ii) the benefit of all laws now existing or that may be
hereafter enacted in any way extending the time for the enforcement or the
collection of amounts due under any of the Mortgaged Obligations or creating or
extending a period of redemption from any sale made in collecting said debt or
any other amounts due Beneficiary, (iii) any right to at any time insist upon,
plead, claim or take the benefit or advantage of any law now or hereafter in
force providing for any appraisement, homestead exemption, valuation, stay,
statute of limitations, extension or redemption, or sale of the Trust Property
as separate tracts, units or estates or as a single parcel in the event of
foreclosure or notice of deficiency, and (iv) all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of or each of the Mortgaged Obligations and marshalling in
the event of foreclosure of this Deed of Trust.
SECTION 2.11. Discontinuance of Proceedings. In case Trustee or
------------------------------
Beneficiary shall proceed to enforce any right, power or remedy under this Deed
of Trust by foreclosure, entry or otherwise, and such proceedings shall be
discontinued or abandoned for any reason, or shall be determined adversely to
Trustee or Beneficiary, then and in every such case Grantor, Trustee and
Beneficiary shall be restored to their former positions and rights hereunder,
and all rights, powers and remedies of Trustee or Beneficiary shall continue as
if no such proceeding had been taken.
29
SECTION 2.12. Suits To Protect the Trust Property. Trustee and/or
------------------------------------
Beneficiary shall have power (a) to institute and maintain suits and proceedings
to prevent any impairment of the Trust Property by any acts that may be unlawful
or in violation of this Deed of Trust, (b) to preserve or protect its interest
in the Trust Property and in the Rents arising therefrom and (c) to restrain the
enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of or compliance with such enactment, rule or order would impair
the security or be prejudicial to the interest of Trustee or Beneficiary
hereunder.
SECTION 2.13. Filing Proofs of Claim. In case of any receivership,
-----------------------
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Grantor, Beneficiary shall, to the extent permitted
by law, be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have the claims of Beneficiary allowed in
such proceedings for the Mortgaged Obligations secured by this Deed of Trust at
the date of the institution of such proceedings and for any interest accrued,
late charges and additional interest or other amounts due or that may become due
and payable hereunder after such date.
SECTION 2.14. Possession by Beneficiary. Notwithstanding the appointment
--------------------------
of any receiver, liquidator or trustee of Grantor, any of its property or the
Trust Property, Beneficiary shall be entitled, to the extent not prohibited by
law, to remain in possession and control of all parts of the Trust Property now
or hereafter granted under this Deed of Trust to Beneficiary in accordance with
the terms hereof and applicable law.
SECTION 2.15. Waiver. (a) No delay or failure by Trustee or Beneficiary
-------
to exercise any right, power or remedy accruing upon any breach or Event of
Default shall exhaust or impair any such right, power or remedy
30
or be construed to be a waiver of any such breach or Event of Default or
acquiescence therein; and every right, power and remedy given by this Deed of
Trust to Trustee or Beneficiary may be exercised from time to time and as often
as may be deemed expedient by Trustee or Beneficiary. No consent or waiver by
Beneficiary to or of any breach or default by Grantor in the performance of the
Mortgaged Obligations shall be deemed or construed to be a consent or waiver to
or of any other breach or Event of Default in the performance of the same or any
other Mortgaged Obligations by Grantor hereunder. No failure on the part of
Beneficiary to complain of any act or failure to act or to declare an Event of
Default, irrespective of how long such failure continues, shall constitute a
waiver by Beneficiary of its rights hereunder or impair any rights, powers or
remedies consequent on any future Event of Default by Grantor.
(b) Even if Beneficiary (i) grants some forbearance or an extension of time
for the payment of any sums secured hereby, (ii) takes other or additional
security for the payment of any sums secured hereby, (iii) waives or does not
exercise some right granted herein or under the Loan Documents, (iv) releases a
part of the Trust Property from this Deed of Trust, (v) agrees to change some of
the terms, covenants, conditions or agreements of any of the Loan Documents,
(vi) consents to the filing of a map, plat or replat affecting the Premises,
(vii) consents to the granting of an easement or other right affecting the
Premises or (viii) makes or consents to an agreement subordinating Beneficiary's
lien on the Trust Property hereunder; no such act or omission shall preclude
Beneficiary from exercising any other right, power or privilege herein granted
or intended to be granted in the event of any breach or Event of Default then
made or of any subsequent default; nor, except as otherwise expressly provided
in an instrument executed by Trustee and Beneficiary, shall this Deed of Trust
be altered thereby. In the event of the sale or transfer by operation of law or
otherwise of all or part of the Trust Property, Beneficiary is hereby authorized
and
31
empowered to deal with any vendee or transferee with reference to the Trust
Property secured hereby, or with reference to any of the terms, covenants,
conditions or agreements hereof, as fully and to the same extent as it might
deal with the original parties hereto and without in any way releasing or
discharging any liabilities, obligations or undertakings.
SECTION 2.16. Remedies Cumulative. No right, power or remedy conferred
--------------------
upon or reserved to Trustee or Beneficiary by this Deed of Trust is intended to
be exclusive of any other right, power or remedy, and each and every such right,
power and remedy shall be cumulative and concurrent and in addition to any other
right, power and remedy given hereunder or now or hereafter existing at law or
in equity or by statute.
SECTION 2.17 Substitution of Trustee. Beneficiary may, from time to time
------------------------
by written instrument executed and acknowledged by Beneficiary and recorded in
the county or counties where the Property is located, and by otherwise complying
with the provisions of any applicable statutes, substitute a successor or
successors for the Trustee named herein or acting hereunder.
SECTION 2.18 Trust Irrevocable; No Offset. The Trust created hereby is
----------------------------
irrevocable by Grantor. No offset or claim that Grantor now has or may in the
future have against Beneficiary shall relieve Grantor from paying the amounts or
performing the obligations contained herein or secured hereby.
ARTICLE III
Miscellaneous
-------------
SECTION 3.01. Partial Invalidity. In the event any one or more of the
-------------------
provisions contained in this Deed of Trust shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such validity, illegality or
unenforceability shall, at the
32
option of Beneficiary, not affect any other provision of this Deed of Trust, and
this Deed of Trust shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein or therein.
SECTION 3.02. Notices. All notices and communications hereunder shall be
--------
in writing and given to Grantor, Beneficiary and Trustee in accordance with the
terms of applicable law and the Credit Agreement at the address set forth on the
first page of this Deed of Trust or as otherwise set forth in this Credit
Agreement.
SECTION 3.03. Successors and Assigns. All of the grants, covenants,
-----------------------
terms, provisions and conditions herein shall run with the Premises and the
Improvements and shall apply to, bind and inure to, the benefit of the permitted
successors and assigns of Grantor and the successors and assigns of Beneficiary.
SECTION 3.04. Satisfaction and Cancelation. (a) The conveyance to Trustee
-----------------------------
of the Trust Property as security, created and consummated by this Deed of Trust
shall be null and void when all the Mortgaged Obligations have been indefeasibly
paid in full in accordance with the terms of the Loan Documents and Beneficiary
has no further commitment to make Loans under the Credit Agreement.
(b) In connection with any termination or release pursuant to paragraph
(a), this Deed of Trust shall be marked "satisfied" by the Beneficiary and/or
Trustee, and this Deed of Trust shall be canceled of record at the request and
at the expense of the Grantor. Beneficiary and Trustee shall execute any
documents reasonably requested by Grantor to accomplish the foregoing or to
accomplish any release contemplated by paragraph (b) and Grantor will pay all
costs and expenses, including reasonable attorneys' fees, disbursements and
other charges, incurred by Beneficiary and Trustee in connection with the
preparation and execution of such documents.
33
SECTION 3.05. Definitions. As used in this Deed of Trust, the singular
------------
shall include the plural as the context requires and the following words and
phrases shall have the following meanings: (a) "including" shall mean "including
---------
but not limited to"; (b) "provisions" shall mean "provisions, terms, covenants
----------
and/or conditions"; (c) "lien" shall mean "lien, charge, encumbrance, security
----
interest, mortgage or deed of trust"; (d) "obligation" shall mean "obligation,
----------
duty, covenant and/or condition"; and (e) "any of the Trust Property" shall mean
"the Trust Property or any part thereof or interest therein". Any act that
Trustee or Beneficiary is permitted to perform hereunder may be performed at any
time and from time to time by Trustee or Beneficiary or any person or entity
designated by Trustee or Beneficiary. Any act that is prohibited to Grantor
hereunder is also prohibited to all lessees of any of the Trust Property. Each
appointment of Trustee or Beneficiary as attorney-in-fact for Grantor under
the Deed of Trust is irrevocable, with power of substitution and coupled with an
interest. Subject to the applicable provisions hereof, Beneficiary has the
right to refuse to grant its consent, approval or acceptance or to indicate its
satisfaction, in its sole discretion, whenever such consent, approval,
acceptance or satisfaction is required hereunder.
SECTION 3.06. Governing Law. This Deed of Trust shall be governed by and
--------------
construed in accordance with the internal law of the State of California.
SECTION 3.07. Full Reconveyance. Upon written request of Beneficiary
-----------------
stating that all sums secured hereby have been paid, upon surrender to Trustee
of the original or a certified copy of this Deed of Trust for cancelation and
retention, and upon payment of its fees, Trustee shall fully reconvey, without
warranty, the entire remaining Property then held hereunder. The recitals in
such reconveyance of any matters of facts shall be conclusive proof of the
truthfulness thereof. The grantee in such reconveyance may be described as "the
person or persons legally entitled thereto".
34
SECTION 3.08. Sale of Loans. Subject to the terms of the Credit
-------------
Agreement, Beneficiary, at any time and without the consent of Borrower, may
grant participations in or sell, transfer, assign and convey all or any portion
of its right, title and interest in and to the Loans, this Deed of Trust and the
other Loan Documents, guaranties given in connection with the Loans and any
collateral given to secure the Loans.
SECTION 3.09. Trustee's Powers and Liabilities. (a) Trustee, by acceptance
---------------------------------
hereof, covenants faithfully to perform and fulfill the trusts herein created,
being liable, however, only for gross negligence, bad faith or wilful
misconduct, and hereby waives any statutory fee and agrees to accept reasonable
compensation, in lieu thereof, for any services rendered by it in accordance
with the terms hereof. All authorities, powers and discretions given in this
Deed of Trust to Trustee and/or Beneficiary may be exercised by either, without
the other, with the same effect as if exercised jointly.
(b) Trustee may resign at any time upon giving 30 days' notice in writing
to Grantor and to Beneficiary.
(c) Beneficiary may remove Trustee at any time or from time to time and
select a successor trustee. In the event of the death, removal, resignation,
refusal to act, inability to act or absence of Trustee from the state in which
the premises are located, or in its sole discretion for any reason whatsoever,
Beneficiary may, upon notice to the Grantor and without specifying the reason
therefor and without applying to any court, select and appoint a successor
trustee, and all powers, rights, duties and authority of the former Trustee, as
aforesaid, shall thereupon become vested in such successor. Such substitute
trustee shall not be required to give bond for the faithful performance of his
duties unless required by Beneficiary. Such substitute trustee shall be
appointed by written instrument duly recorded in the county where the Land is
located. Grantor hereby ratifies and confirms any and all acts that the herein
named Trustee, or his
35
successor or successors in this trust, shall do lawfully by virtue hereof.
Grantor hereby agrees, on behalf of itself and its heirs, executors,
administrators and assigns, that the recitals contained in any deed or deeds
executed in due form by any Trustee or substitute trustee, acting under the
provisions of this instrument, shall be prima facie evidence of the facts
recited, and that it shall not be necessary to prove in any court, otherwise
than by such recitals, the existence of the facts essential to authorize the
execution and delivery of such deed or deeds and the passing of title thereby.
(d) Trustee shall not be required to see that this Deed of Trust is
recorded, nor liable for its validity or its priority as a first deed of trust,
or otherwise, nor shall Trustee be answerable or responsible for performance or
observance of the covenants and agreements imposed upon Grantor or Beneficiary
by this Deed of Trust or any other agreement. Trustee, as well as Beneficiary,
shall have authority in their respective discretion to employ agents and
attorneys in the execution of this trust and to protect the interest of the
Beneficiary hereunder, and to the extent permitted by law they shall be
compensated and all reasonable expenses relating to the employment of such
agents and/or attorneys, including expenses of litigations, shall be paid out of
the proceeds of the sale of the Trust Property conveyed hereby should a sale be
had, but if no such sale be had, all sums so paid out shall be recoverable to
the extent permitted by law by all remedies at law or in equity.
(e) At any time, or from time to time, without liability therefor and with
10 days' prior written notice to Grantor, upon written request of Beneficiary
and without affecting the effect of this Deed of Trust upon the remainder of the
Trust Property, Trustee may (i) reconvey any part of the Trust Property, (ii)
consent in writing to the making of any map or plat thereof, so long as Grantor
has consented thereto, (iii) join in granting any easement thereon, so long as
Grantor has consented thereto, or (iv) join in any
36
extension agreement or any agreement subordinating the lien or charge hereof.
SECTION 3.10. Limitation on Beneficiary's or Trustee's Responsibility. No
--------------------------------------------------------
provision of this Deed of Trust shall operate to place any obligation or
liability for the control, care, management or repair of the Trust Property upon
Beneficiary or Trustee, nor shall it operate to make Beneficiary or Trustee
responsible or liable for any waste committed on the Trust Property by the
tenants or any other parties, or for any dangerous or defective condition of the
Trust Property, or for any negligence in the management, upkeep, repair or
control of the Trust Property resulting in loss or injury or death to any
tenant, licensee, employee or stranger. Nothing herein contained shall be
construed as constituting Beneficiary a "mortgagee in possession" absent the
actual taking of possession of the Trust Property by Beneficiary.
SECTION 3.11. Hold Harmless. Neither Beneficiary or Trustee shall be
--------------
obligated to perform or discharge, and do not undertake hereby to perform nor to
discharge, any obligation, duty or liability with respect to the Trust Property
or the Leases solely by reason of this Deed of Trust, and Trustor shall and does
hereby agree to defend, indemnify, hold harmless and protect Beneficiary or
Trustee from and against any and all claims, losses, expenses, damage and
liabilities (including, without limitation, reasonable attorneys' fees) which
may arise or be incurred or accrue in connection therewith, except, in each
case, to the extent incurred as a result of the negligence or misconduct of
Beneficiary or Trustee, as the case may be, or the failure of Beneficiary or
Trustee, as the case may be, to comply in all material respects with Applicable
Laws. Should Beneficiary or Trustee incur any such liability, loss or damage,
the amount thereof, including all reasonable attorneys' fees and reasonable
costs and expenses associated with actions taken by Beneficiary, as the case may
be, in defense thereof, or otherwise in protecting its interests hereunder,
shall be part of the Mortgaged Obligations and shall be secured hereby, and
Trustor covenants and agrees to reimburse Beneficiary therefor promptly
following demand. Should Trustee incur any such liability, loss or damage, the
amount thereof including all reasonable attorneys' fees and reasonable costs and
expenses
37
associated with actions taken by Trustee in defense thereof, shall be reimbursed
by Trustor promptly after demand therefor.
SECTION 3.12. Marshalling; Payments Set Aside. Beneficiary and Trustee
--------------------------------
shall not be under any obligation to ▇▇▇▇▇▇▇▇ any assets in favor of Trustor or
any other party or against or in payment of any or all of the Mortgaged
Obligations hereby secured. To the extent that Trustor makes a payment or
payments to Beneficiary or Trustee, or Beneficiary or Trustee enforces its lien
or exercises any rights or setoff, and such payment or payments or the proceeds
of such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law,
state or Federal law, common law or equitable cause, then to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all such liens and rights and remedies therefor, shall be revived and
continue in full force and effect as if such payment had not been made or such
enforcement or setoff has not occurred.
SECTION 3.13. Waiver of Jury Trial; Consent to Jurisdiction. (a) TO THE
----------------------------------------------
EXTENT PERMITTED UNDER APPLICABLE LEGAL REQUIREMENTS, GRANTOR AND BENEFICIARY
EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREE TO WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS DEED OF TRUST, OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS DEED OF TRUST. THE SCOPE OF THIS WAIVER IS INTENDED TO
ENCOMPASS ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO
THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION, CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. GRANTOR AND BENEFICIARY EACH ACKNOWLEDGE THAT THIS WAIVER IS
A MATERIAL INDUCEMENT TO ENTER INTO THIS DEED OF TRUST, AND THAT EACH WILL
CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALING. GRANTOR AND
BENEFICIARY EACH FURTHER WARRANT AND REPRESENT THAT EACH OF THEM HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT EACH OF THEM KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY
38
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
DEED OF TRUST OR ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTION.
IN THE EVENT OF LITIGATION, THIS DEED OF TRUST MAY BE FILED AS A WRITTEN CONSENT
TO A TRIAL BY THE COURT.
(b) GRANTOR AND BENEFICIARY HERETO CONSENT FOR THEMSELVES AND IN
RESPECT OF THEIR PROPERTIES, GENERALLY, UNCONDITIONALLY AND IRREVOCABLY, TO THE
NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS IN THE STATE OF
CALIFORNIA WITH RESPECT TO ANY PROCEEDING TO FORECLOSE THE LIEN OF THIS DEED OF
TRUST OR TO ENFORCE BENEFICIARY'S REMEDIES HEREUNDER. GRANTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS, GENERALLY, UNCONDITIONALLY AND
IRREVOCABLY, AT THE ADDRESS SET FORTH IN THE CREDIT AGREEMENT IN CONNECTION WITH
ANY OF THE AFORESAID PROCEEDINGS IN ACCORDANCE WITH THE RULES APPLICABLE TO SUCH
PROCEEDINGS. GRANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW
HAVE OR HAVE IN THE FUTURE TO THE LAYING OF VENUE IN RESPECT OF ANY OF THE
AFORESAID PROCEEDINGS BROUGHT IN THE COURTS REFERRED TO ABOVE AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF BENEFICIARY TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW
OR TO COMMENCE PROCEEDINGS OR OTHERWISE PROCEED AGAINST GRANTOR IN ANY
JURISDICTION.
SECTION 3.14. Lien Absolute, Multisite Real Estate and Multiple Collateral
------------------------------------------------------------
Transaction. Grantor acknowledges that this Deed of Trust and other Security
------------
Documents together secure the Mortgaged Obligations. Grantor agrees that the
lien of this Deed of Trust and all obligations of Grantor hereunder shall be
absolute and unconditional and shall not in any manner be affected or impaired
by:
(a) any lack of validity or enforceability of any other Security
Documents, any agreement with respect to any of the Mortgaged Obligations
or any other agreement or instrument relating to any of the foregoing;
(b) any acceptance by Beneficiary or Trustee of any security for or
guarantees of any of the Mortgaged Obligations hereby secured, including
but not limited to any of the Security Documents;
39
(c) any failure, neglect or omission on the part of Beneficiary or
Trustee to realize or protect any of the Mortgaged Obligations hereby
secured or any collateral security therefor, or due to any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, Trustor in respect of the Mortgaged Obligations of this Deed
of Trust;
(d) any extension, renewal, compromise of, or change in the time,
manner or place of payment or, or in any other term of, all or any of the
Mortgaged Obligations;
(e) any release (except as to the property released), sale, pledge,
surrender, compromise, settlement, nonperfection, renewal, extension,
indulgence, alteration, exchange, modification or disposition of any of the
Mortgaged Obligations hereby secured or of any of the collateral security
therefor;
(f) any amendment or waiver of or any consent to any departure from
this Deed of Trust, or any other Security Document, and Trustee or
Beneficiary may in its discretion foreclose, exercise any power of sale, or
exercise any other remedy available to it under any of the other Loan
Documents without first exercising or enforcing any of its rights and
remedies hereunder; and
(g) any exercise of the rights or remedies of Beneficiary or Trustee
hereunder or under any or all of the other Loan Documents.
40
IN WITNESS WHEREOF, this Deed of Trust has been duly executed and
delivered to Trustee and Beneficiary by Grantor on the date of the
acknowledgment attached hereto.
JAFRA COSMETICS INTERNATIONAL, INC., a Delaware
corporation,
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
by: _______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Executive Vice President
41
New York
STATE OF _______________ )
) ss:
New York
COUNTY OF ______________ )
APRIL 30, 1998
On _________________, before me,
▇▇▇▇▇▇▇ OH
________________,
▇▇▇▇▇ ▇. ▇▇▇▇▇, III
a Notary Public, personally appeared ______________________
_______________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇▇ Oh
_______________________________________
▇▇▇▇▇▇▇ Oh
Print Name ___________________
My Commission Expires
June 16, 1999
_________________________
[Seal] ▇▇▇▇▇▇▇ OH
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in Queens County
Certificate filed in New York County
Commission Expires June 16, 1999
42
Exhibit A
to Deed of Trust
Legal Description
-----------------
FILE NO. 65889-RD
THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
---------
Parcels 1 and 2 of LD-613, in the City of Thousand Oaks, County of Ventura,
State of California, as shown on a parcel map filed in Book 52, Pages 43 and 44
of Parcel Maps, in the office of the County Recorder of said county.
EXCEPT all oil, gas, hydrocarbon substances lying within and under that portion
of said land lying below a depth of 500 feet, measured vertically from the
surface of said land, without, however, any right to enter upon the surface of
said land, nor into that portion of the subsurface thereof lying above a depth
of 500 feet, measured vertically from said surface.
PARCEL B:
---------
▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇-▇, in the City of Thousand Oaks, as per map recorded in Book
51, pages 85 to 88 inclusive of maps, in the office of the County Recorder of
said county.
EXCEPT all oil, gas, hydrocarbon substances lying within and under that portion
of said land lying below a depth of 500 feet measured vertically from the
surface of said land, without, however, any right to enter upon the surface of
said land nor into that portion of the subsurface thereof, lying above a depth
of 500 feet measured vertically from said surface.
RD/jd
Schedule A
to Deed of Trust
Leases of Trust Property
------------------------
NONE
