second lien DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING Dated as of May 25, 2007 By THE BOMBAY COMPANY, INC., as Grantor To JACK RATTIKIN, JR., as Trustee For the Benefit of GB MERCHANT PARTNERS, LLC, as...
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second
lien
DEED
OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT
OF LEASES AND RENTS AND FIXTURE FILING
Dated
as
of May 25, 2007
By
THE
BOMBAY COMPANY, INC.,
as
Grantor
To
XXXX
XXXXXXXX, XX.,
as
Trustee
For
the
Benefit of
GB
MERCHANT PARTNERS, LLC,
as
Beneficiary
related
to the following premises:
000
Xxxxxx Xxxxxx
Fort
Worth, Texas 76107
THIS
DEED OF TRUST SECURES FUTURE ADVANCES
SECOND
LIEN DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT
OF LEASES AND RENTS AND FIXTURE FILING
THIS
SECOND LIEN DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENT
AND
FIXTURE FILING (this “Deed
of Trust”),
dated
as of May 25, 2007, is executed and delivered by THE BOMBAY COMPANY, INC.,
a
Delaware corporation, with an address at 000 Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx
00000 (“Grantor”),
to
XXXX XXXXXXXX, XX., an individual and resident of the State of Texas, having
an
address at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxx 00000, his successors
or substitutes (“Trustee”),
for
the benefit of GB MERCHANT PARTNERS, LLC, having an address of 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx Xxxxxxxxxxxxx 00000 (together with its successors and assigns,
“Beneficiary”).
RECITALS
WHEREAS,
pursuant to the Term Loan Agreement, dated as of even date herewith (as the
same
may be amended, restated, supplemented or otherwise modified from time to time,
the “Loan
Agreement”),
by
and among Grantor and each of Grantor’s Subsidiaries which are parties thereto
(collectively, the “Borrowers”),
Beneficiary has agreed to make a loan to the Borrowers upon the terms and
subject to the conditions set forth therein;
WHEREAS,
Grantor is the owner and holder of fee simple title in and to all of the real
estate located in Tarrant County, State of Texas, more fully described in
Exhibit
A
attached
hereto (the “Premises”),
which
Premises is a portion of the Property described below; and
WHEREAS,
it is a condition to the obligation of Beneficiary to make a loan to the
Borrowers under the Loan Agreement that the Grantor shall have executed and
delivered this Deed of Trust to Beneficiary;
NOW,
THEREFORE, in consideration of the premises and to induce Beneficiary to enter
into the Loan Agreement and to Beneficiary to make a loan to the Borrowers
thereunder, Grantor hereby agrees with Beneficiary as follows:
ARTICLE
1
DEFINITIONS
Section
1.1 Unless
otherwise defined herein, terms defined in the Loan Agreement and used herein
have the meanings given to them in the Loan Agreement. As used herein, the
following terms shall have the following meanings:
(a) “Building
Service Equipment”
means
all apparatus, fixtures and articles of personal property owned by Grantor
now
or hereafter attached to or used or procured for use in connection with the
operation or maintenance of any building, structure or other improvement located
on or included in the Property (except apparatus, fixtures or articles of
personal property belonging to lessees or other occupants of such building
or to
persons other than Grantor unless the same be abandoned by any such lessee
or
other occupant or person), together with any and all replacements thereof and
additions thereto.
(b) “Deed
of Trust”
has
the
meaning set forth in the Preamble.
(c) “First
Lien Deed of Trust”
means
that certain Deed of Trust, Security Agreement, Assignment of Rents and Fixture
Filing dated October 24, 2006 given by Grantor to Xxxx Xxxxxxxx, Xx., as
trustee, for the benefit of Beneficiary, as beneficiary, assignee and secured
party, in its capacity as administrative agent for the Lenders and Issuers
(as
such terms are defined in the First Lien Credit Agreement), recorded in the
Deed
Records of Tarrant County under Clerk’s File No. D206336238, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
(d) “Grantor”
means
the person or persons named at the beginning of this instrument as Grantor,
and
any subsequent owner or owners of the Property.
(e) “Indebtedness”
means
(1) the Obligations, and (2) all other indebtedness, obligations and liabilities
now or hereafter existing of any kind of Grantor or any Loan Party to
Beneficiary or any of the Secured Parties pursuant to or in connection with
the
Loan Agreement. This Deed of Trust secures any future advances under the Loan
Agreement.
(f) “Permitted
Encumbrances”
means
the encumbrances listed on Exhibit
B
to this
Deed of Trust and incorporated herein by reference as if fully set out herein
and the Permitted Liens.
(g) “Property”
means
all of the described property, rights, privileges, interests and franchises
more
particularly described in paragraphs (1) through (11) below:
| (1) |
the
Premises;
|
| (2) |
all
and singular the tenements, hereditaments, easements, appurtenances,
passages (and all waters, water courses and riparian rights, if any),
pipes, conduits, electrical and other utility lines, other rights,
liberties and privileges thereof or in any way now or hereafter
appertaining to the Premises, including any other claim at law or
in
equity as well as any after acquired title, franchise or license
and the
reversion and reversions and remainder and remainders thereof, and
all of
the estate, right, title, claim or demand whatsoever of Grantor therein
and in the streets, ways and areas adjacent
thereto;
|
| (3) |
all
buildings and other improvements of every kind and description now
or
hereafter erected or placed on the Premises or any part thereof owned
by
the Grantor (the “Improvements”);
|
|
(4)
|
all
of the right, title and interest of Grantor in and to all materials
intended for construction, reconstruction, alteration and repairs
of such
improvements now or hereafter erected thereon, all of which materials
shall be deemed to be included within the Premises immediately upon
the
delivery
thereof to the Premises, and all fixtures, Building Service Equipment,
and
all renewals or replacements thereof or articles in substitution
therefor;
it being mutually agreed that all the aforesaid property owned or
to be
owned by Grantor and placed by it on the Premises and such buildings
and
improvements shall, so far as permitted by law, be deemed to be affixed
thereto and covered by this Deed of Trust (the “Fixtures”);
|
2
| (5) |
all
of the estate, right, title and interest now owned or hereafter acquired
by Grantor in and to any and all sidewalks and alleys, and all strips
and
gores of land, adjacent to or in connection with the
Premises;
|
| (6) |
all
present and future leases, licenses, concessions, occupancy agreements
or
other agreements entered into by Grantor (written or oral) which
grant to
any Person a possessory interesting, or the right to use, all or
any part
of the Premises or Improvements together with all the rights and
privileges of the Grantor thereunder, together with all related security
and other deposits deposited with Grantor (the “Leases”);
|
| (7) |
all
of the rents, revenues, royalties, income, proceeds, profits, security
and
other types of deposits, and other benefits paid or payable by parties
to
the Leases for using, leasing, licensing, possessing, operating from,
residing in, selling or otherwise enjoying the Premises (the “Rents”);
|
| (8) |
all
insurance policies now or hereafter obtained by the Grantor pursuant
to
the provisions of the Deed of Trust, all unearned premiums accrued,
accruing or to accrue thereunder (the “Insurance”);
|
| (9) |
all
transferable building service, building maintenance, construction,
management and other similar agreements and contracts, written or
oral,
express or implied, now or hereafter entered into arising or in any
manner
related to the construction, design, improvement, use, operation,
occupation, enjoyment, sale, conversion, or other disposition (voluntary
or involuntary) of the Premises, Fixtures, Improvements or Leases,
or any
combination thereof, including all property management agreements,
sales
contracts, contract deposits, xxxxxxx money deposits, prepaid items
and
payments due and to become due thereunder, and further including
all
payment and performance bonds, construction guaranties, warranties,
construction contracts, architects agreements, general contract
agreements, design agreements, engineering agreements, technical
service
agreements, architectural plans and specifications, sewer and water
and
other utility agreements, permits, approvals, licenses, building
permits,
service contracts, advertising contracts, purchase orders and equipment
leases (the “Property
Agreements”);
|
3
| (10) |
all
awards, damages, remunerations, reimbursements, settlements or
compensation heretofore made or hereafter to be made by any governmental
authority pertaining to any condemnation or other taking (or any
purchase
in lieu thereof) of all or any portion of the Land, Improvements,
Fixtures, Personalty or Leases (the “Condemnation
Awards”);
and
|
| (11) |
all
proceeds of the conversion, voluntary or involuntary, of any of the
foregoing into cash or liquidated claims, including, but without
limitation, proceeds of insurance, and proceeds of condemnation awards
and
awards for restriction of access to, or change of grade of, streets,
and
all accessions, replacements and substitutions of the foregoing of
every
type and all proceeds and products thereof (the “Proceeds”).
As used in this Deed of Trust, the term “Property” shall mean all or,
where the context permits or requires, any portion of the above or
any
interest of Grantor therein.
|
(h) “Rider”
means
the Deed of Trust Rider attached hereto as Exhibit C.
(i) “Trustee”
has
the
meaning set forth in the Preamble.
(j
) “UCC”
means
The Uniform Commercial Code of Texas.
Section
1.2 References
to “Sections” shall be to Sections of this Deed of Trust unless otherwise
specifically provided. Section headings in this Deed of Trust are included
herein for convenience of reference only and shall not constitute a part of
this
Deed of Trust for any other purpose or be given any substantive effect. The
rules of construction set forth in the Loan Agreement shall be applicable to
this Deed of Trust mutatis mutandis. If any conflict exists between this Deed
of
Trust and the Loan Agreement, the Loan Agreement shall govern. Capitalized
terms
used herein but not otherwise defined herein shall have the meanings ascribed
thereto in the Loan Agreement.
Section
1.3 The
covenants, agreements, conditions, definitions, representations and warranties
contained in the Rider and all references to covenants, agreements, conditions,
definitions, representations and warranties contained in this Deed of Trust
shall be deemed to include the covenants, agreements, conditions,
representations and warranties contained in said Rider.
ARTICLE
2
GRANT
Section
2.1 To
secure
the full, prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of the Indebtedness, Grantor
has
GRANTED, MORTGAGED, BARGAINED, ASSIGNED, SOLD AND CONVEYED, and by these
presents does XXXXX, MORTGAGE, BARGAIN, ASSIGN, SELL AND CONVEY WITH POWER
OF
SALE, to Trustee, the Property, subject only to Permitted Encumbrances. TO
HAVE
AND TO HOLD the Property, together with all and
4
ARTICLE 3
REMEDIES
Section
3.1 Grantor
specifically agrees that after any sale under this Deed of Trust, it, or its
successors or assigns, shall be mere tenants at sufferance of the purchaser
of
the Property, or any part thereof at such Trustee’s sale, and that such
purchaser shall be entitled to the immediate possession thereof, and upon
failure to surrender possession, the purchaser as landlord, shall have the
right
to go into any Justice of the Peace Court in the precinct and county in which
the Property is located, and file an action for forcible entry and detainer,
which action shall lie against Grantor, its successors or assigns, as tenants
of
such purchaser. This remedy is cumulative of any and all other remedies the
purchaser may have hereunder or otherwise.
Section
3.2 If
an
Event of Default shall occur, Beneficiary may require Trustee to sell all or
part of the Property, at public auction, to the highest bidder for cash, at
the
location designated by the Commissioner’s Court of the county in which the
Property is located, pursuant to Section 51.002, Property Code, Vernon’s
Texas Codes Annotated, or, if no such designation has been made, at the door
of
the county courthouse of the county in Texas in which such Property or any
part
thereof is situated, between the hours of 10:00 o’clock A.M. and 4:00 o’clock
P.M. on the first Tuesday of any month, after giving notice of the time, place,
and terms of said sale and of the property to be sold by posting written notice
of the sale at the courthouse door, and by filing a copy of the notice in the
office of the county clerk of the county in which the sale is to be made at
least twenty-one (21) days preceding the date of the sale. If the property
to be
sold is situated in more than one county, a notice shall be posted at the
courthouse door and filed with the county clerk in each county in which the
property to be sold is situated. In addition, Beneficiary shall, at least
twenty-one (21) days preceding the date of sale, serve written notice of the
proposed sale by certified mail on each debtor obligated to pay the debt secured
hereby according to the records of Beneficiary. Notwithstanding any agreement
to
the contrary, the holder of the debt shall serve a debtor in default under
a
deed of trust or other contract lien on real property used as the debtor’s
residence with written notice by certified mail stating that the debtor is
in
default under the deed of trust or other contract lien and giving the debtor
at
least 20 days to cure the default before notice of sale can be given under
Section 51.002, subsection (b). The entire calendar day on which the notice
required by this subsection is given, regardless of the time of day at which
the
notice is given, is included in computing the 20-day notice period required
by
this subsection, and the entire calendar day on which notice of sale is given
under subsection (b) is excluded in computing the 20-day notice period. Service
of such notice shall be completed upon deposit of the notice, enclosed in a
postpaid wrapper, properly addressed to such debtor at the most recent address
as shown by the records of Beneficiary, in a post office or official depository
under the care and custody of the United States Postal Service. The affidavit
of
any person having knowledge of the facts to the effect
5
Section
3.3 The
proceeds of any sale of, and the Rents and other amounts generated by the
holding, leasing, management, operation or other use of the Property, shall
be
applied by Trustee or Beneficiary (or the receiver, if one is appointed) in
the
following order unless otherwise required by applicable law: first, to the
payment of the costs and expenses of taking possession of the Property and
of
holding, using, leasing, repairing, improving and selling the same, including,
without limitation, (a) receiver’s fees and expenses, including the repayment of
the amounts evidenced by any receiver’s certificates, (b) court costs, (c)
reasonable attorneys’ and accountants’ fees and expenses, and (d) costs of
advertisement; and second, as provided in Section 2.5 of the Loan
Agreement.
Section
3.4 Payment
of the purchase price to Trustee shall satisfy the obligation of the purchaser
at such sale therefor, and such purchaser shall not be responsible for the
application thereof. The sale or sales by Trustee of less than the whole of
the
Property shall not exhaust the power of sale herein granted, and Trustee is
specifically empowered to make successive sale or sales under such power until
the whole of the Property shall be sold; and, if the proceeds of such sale
or
sales of less than the whole of the Property shall be less than the aggregate
of
the indebtedness and the expenses thereof, this Deed of Trust and the lien,
security interest, and assignment hereof shall remain in full force and effect
as to the unsold portion of the Property just as though no sale or sales had
been made; provided, however, that Grantor shall never have any right to require
the sale or sales of less than the whole of the Property, but Beneficiary shall
have the right, at its sole election, to request Trustee to sell less than
the
whole of the Property.
Section
3.5 If
an
Event of Default occurs, the holder of the indebtedness or any part thereof
on
which the payment is delinquent shall have the option to proceed with
foreclosure in satisfaction of such item either through judicial proceedings
or
by directing Trustee to proceed as if under a full foreclosure, conducting
the
sale as herein provided without declaring the entire indebtedness due, and
if
sale is made because of default in the payment of an installment, or a part
of
an installment, such sale may be made subject to the unmatured part of the
indebtedness; and it is agreed that such sale, if so made, shall not in any
manner affect the unmatured part of the indebtedness, but as to such matured
part this Deed of Trust shall remain in full force and effect as though no
sale
had been made under the provisions of this paragraph. Several sales may be
made
hereunder without exhausting the right of sale for any unmatured part of any
indebtedness. At any such sale the purchaser may disaffirm any easement granted,
or rental, lease, or other contract made, in violation of
6
Section
3.6 Neither
the enforcement of any of the remedies under this Article, the assignment
of the
Rents and Leases hereunder, the security interests hereunder, nor any other
remedies afforded to Beneficiary or the Lenders under the Loan Documents,
at law
or in equity shall cause Beneficiary or any Lender to be deemed or construed
to
be a mortgagee in possession of the Property, to obligate Beneficiary or
any
Lender to lease the Property or attempt to do so, or to take any action,
incur
any expense, or perform or discharge any obligation, duty or liability
whatsoever under any of the Leases or otherwise.
ARTICLE
4
TRUSTEE
Section
4.1 If
the
Trustee shall die or become disqualified from acting in the execution of this
trust or shall fail or refuse to execute the same when requested by the
Beneficiary to do so, or if, for any reason, the Beneficiary shall prefer to
appoint a substitute trustee to act instead of the Trustee herein named, or
any
substitute trustee previously appointed, the Beneficiary shall have the full
power to appoint, by written instrument a substitute trustee, or several
substitute trustees in succession, who shall succeed to all of the estate,
rights, powers and duties of the Trustee herein named.
Section
4.2 Except
for gross negligence or willful misconduct, Trustee shall not be liable for
any
act or omission or error of judgment. Trustee may rely on any document believed
by him in good faith to be genuine. All money received by Trustee shall, until
used or applied as herein provided, be held in trust, but need not be segregated
(except to the extent required by law), and Trustee shall not be liable for
interest thereon.
Section
4.3 To
the
extent that this Deed of Trust or applicable law authorizes or empowers
Beneficiary to exercise any remedies set forth herein or otherwise, or perform
any acts in connection therewith, Trustee (but not to the exclusion of
Beneficiary unless so required under the law of the State of Texas) shall have
the power to exercise any or all such remedies, and to perform any acts provided
for in this Deed of Trust in connection therewith, all for the benefit of
Beneficiary and on Beneficiary’s behalf in accordance with applicable law of the
State of Texas. In connection therewith, Trustee: (a) shall not exercise, or
waive the exercise of, any Beneficiary’s remedies (other than any rights of
Trustee to any indemnity or reimbursement), except at Beneficiary’s request, and
(b) shall exercise, or waive the exercise of, any or all of Beneficiary’s
remedies at Beneficiary’s request, and in accordance with Beneficiary’s
directions as to the manner of such exercise or waiver. Trustee may, however,
decline to follow Beneficiary’s request or direction if Trustee shall be advised
by counsel that the action or proceeding, or manner thereof, so directed may
not
lawfully be taken or waived.
7
ARTICLE
5
ASSIGNMENT
OF LEASES AND RENTS
Section
5.1 In
furtherance of and in addition to the assignment made by Grantor herein, Grantor
hereby absolutely and unconditionally assigns, sells, transfers and conveys
to
Beneficiary all of its right, title and interest in and to all Leases, whether
now existing or hereafter entered into, and all of its right, title and interest
in and to all Rents. This assignment is an absolute assignment and not an
assignment for additional security only. So long as no Event of Default shall
have occurred and be continuing, Grantor shall have a revocable license from
Beneficiary to exercise all rights extended to the landlord under the Leases,
including the right to receive and collect all Rents for use in the payment
and
performance of the Indebtedness and to otherwise use the same. The foregoing
license is granted subject to the conditional limitation that no Event of
Default shall have occurred and be continuing. Upon the occurrence and during
the continuance of an Event of Default, whether or not legal proceedings have
commenced, and without regard to adequacy of security for the Indebtedness
or
solvency of Grantor, the license herein granted shall automatically expire
and
terminate, without notice by Beneficiary (any such notice being hereby expressly
waived by Grantor).
Section
5.2 Grantor
acknowledges that upon recordation of this Deed of Trust, Beneficiary shall
have, to the extent permitted under applicable law, a valid and fully perfected,
second priority, present assignment of the Rents arising out of the Leases
and
all security for such Leases subject to the Permitted Encumbrances and in the
case of security deposits, rights of depositors and requirements of law. Grantor
acknowledges and agrees that upon recordation of this Deed of Trust,
Beneficiary’s interest in the Rents shall be deemed to be fully perfected,
“xxxxxx” and enforced as to Grantor and all third parties, including, without
limitation, any subsequently appointed trustee in any case under Title 11 of
the
United States Code (the “Bankruptcy
Code”),
without the necessity of commencing a foreclosure action with respect to this
Deed of Trust, making formal demand for the Rents, obtaining the appointment
of
a receiver or taking any other affirmative action.
Section
5.3 Without
limitation of the absolute nature of the assignment of the Rents hereunder,
Grantor and Beneficiary agree that (a) this Deed of Trust shall constitute
a
“security agreement” for purposes of Section 552(b) of the Bankruptcy Code, (b)
the security interest created by this Deed of Trust extends to the Property
acquired before the commencement of a case in bankruptcy and to all amounts
paid
as Rents, and (c) such security interest shall extend to all Rents acquired
by
the estate after the commencement of any case in bankruptcy.
ARTICLE
6
MISCELLANEOUS
Section
6.1 To
the
extent that proceeds of the Obligations are used to pay any outstanding lien,
charge or encumbrance affecting the Property, such proceeds have been advanced
by Beneficiary at Grantor’s request, and Beneficiary shall be subrogated to all
rights, interests and liens owned or held by any owner or holder of such
outstanding liens, charges and encumbrances, irrespective of whether such liens,
charges or encumbrances are released of record; provided, however, that the
terms and provisions
8
Section
6.2 No
waiver
of any default on the part of Grantor or breach of any of the provisions of
this
Deed of Trust or of any other instrument executed in connection with the
Obligations shall be considered a waiver of any other or subsequent default
or
breach, and no delay or omission in exercising or enforcing the rights and
powers, and likewise no exercise or enforcement of any rights or powers
hereunder shall be held to exhaust such rights and powers, and every such right
and power may be exercised from time to time. Acceptance by Beneficiary of
partial payments shall not constitute a waiver of the default by failure to
make
full payments.
Section
6.3 To
the
extent that Grantor may lawfully do so, Grantor hereby expressly waives any
right pertaining to the marshalling of assets, the exemption of homestead,
the
administration of estates of decedents, or other matter to defeat, reduce or
affect the right of Beneficiary to sell the Property for the collection of
the
Obligations (without any or different resort for collection), or the right
of
Beneficiary to the payment of the Obligations out of the proceeds of sale of
the
Property in preference to every other person and claimant.
Section
6.4 To
the
fullest extent permitted by law, Grantor hereby irrevocably and unconditionally
waives and releases (a) all benefit that might accrue to Grantor by virtue
of
any present or future law or judicial decision exempting the Property from
attachment, levy or sale on execution or providing for any stay of execution,
exemption from civil process, redemption or extension of time for payment;
(b)
all notices of any Event of Default or of Beneficiary’s election to exercise or
the actual exercise of any right, remedy or recourse provided for under the
Credit Documents, except as required to be provided under the Loan Agreement;
and (c) any right to a sale in inverse order of alienation. Grantor waives
any
statutory right of redemption and equity of redemption.
Section
6.5 Grantor
waives any right or remedy which Grantor may have or be able to assert pursuant
to Chapter 34 of the Business and Commerce Code of the State of Texas pertaining
to the rights and remedies of sureties.
Section
6.6 Grantor
hereby waives appraisement, or does not waive appraisement, at the option of
the
Beneficiary, to be exercised at any time prior to or at entry of judgment in
any
action to foreclose this Deed of Trust. Grantor expressly agrees that the
Trustee may offer the Property as a whole or in such parcels or lots as the
Beneficiary, in its sole discretion elects, regardless of the manner in which
the Property may be described. Furthermore, in the event an interest in any
of
the Property is foreclosed upon pursuant to a judicial or non-judicial
foreclosure sale, the Grantor agrees as follows: notwithstanding the provisions
of Sections 51.003, 51.004, and 51.005 of the Texas Property Code (as the same
may be amended from time to time), and to the extent permitted by law, the
Grantor agrees that Beneficiary or Trustee, as the case may be, shall be
entitled to seek a deficiency judgment from the Grantor and any other party
obligated in respect of the Obligations equal to the difference between the
amount of the Obligations and the amount for which the Property was
9
Section
6.7 In
the
event that the amount secured by the Deed of Trust is less than the
Indebtedness, then the amount secured shall be reduced only by the last and
final sums that Borrower repays with respect to the Indebtedness and shall
not
be reduced by any intervening repayments of the Indebtedness unless arising
from
the Property. So long as the balance of the Indebtedness exceeds the amount
secured, any payments of the Indebtedness shall not be deemed to be applied
against, or to reduce, the portion of the Indebtedness secured by this Deed
of
Trust. Such payments shall instead be deemed to reduce only such portions of
the
Indebtedness as are secured by other collateral located outside of the state
in
which the Property is located or as are unsecured.
Section
6.8 All
obligations contained in this Deed of Trust are intended by Grantor and
Beneficiary to be, and shall be construed as, covenants running with the
Property. As used herein, “Grantor” shall refer to the party named in the first
paragraph of this Deed of Trust and to any subsequent owner of all or any
portion of the Property. All Persons who acquire an interest in the Property
shall be deemed to have notice of, and be bound by, the terms of the Loan
Agreement and the other Loan Documents; however, no such party shall be entitled
to any rights thereunder without the prior written consent of Beneficiary.
In
addition, all of the covenants of Grantor in any Loan Document party thereto
are
incorporated herein by reference and, together with covenants in this Section,
shall be covenants running with the land.
Section
6.9 (a)
At the
time provided in Section 9.10
of the
Loan Agreement, the Property shall be released from the Lien created hereby
and
this Deed of Trust and all obligations (other than those expressly stated to
survive such termination) of the Beneficiary and Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act
by
any party, and all rights to the Property shall revert to the Grantor. At the
request of Grantor following any such termination, the Beneficiary shall execute
and deliver to Grantor such documents as Grantor shall reasonably request to
evidence such termination.
(b) If
the
Beneficiary shall be directed or permitted pursuant to Section 9.10
of the
Loan Agreement to release any Lien or any portion of the Property, such Property
shall be released from the Lien created hereby to the extent provided under,
and
subject to the terms and conditions set forth in Section 9.10
of the
Loan Agreement. In connection therewith, the Beneficiary, at the request of
Grantor, shall execute and deliver to Grantor such documents as Grantor shall
reasonably request to evidence such release.
Section
6.10 THIS
DEED OF TRUST AND THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT
AMONG THE PARTIES HERETO AND SUPERCEDE ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING
10
Section
6.11 By
acceptance hereof, Beneficiary agrees that the First Lien Deed of Trust and
all
amounts secured by the First Lien Deed of Trust (including all future advances
secured thereby) shall have priority over this Deed of Trust and the
Indebtedness secured hereby. The priorities specified herein shall be
applicable irrespective of the time or order of attachment or perfection of
security or mortgage interests, the time or order of filing of financing
statements or mortgages, the time or order of making advances secured by the
First Lien Deed of Trust, or the giving or failure to give any notice required
hereby or thereby, or by law. Notwithstanding anything contained in this
Deed of Trust to the contrary, the right to condemnation, insurance,
foreclosure, and other proceeds are governed by the Intercreditor Agreement
and
the First Lien Credit Agreement.
[Remainder
of page intentionally left blank.]
11
EXECUTED
as of the date first hereinabove written.
GRANTOR
THE
BOMBAY COMPANY,
INC.
a
Delaware
corporation
By:_____________________________________
Name:________________________________
Title: _________________________________
STATE
OF
TEXAS §
§
COUNTY
OF
TARRANT §
This
instrument was acknowledged before me the ____ day of May, 2007, by
______________________________, the _________________________ of The Bombay
Company, Inc., a Delaware corporation, on behalf of said
corporation.
[SEAL] Notary
Public, State of Texas
Tarrant
County,
Texas
EXHIBIT A
DESCRIPTION
OF PREMISES
EXHIBIT B
PERMITTED
ENCUMBRANCES
| 1. |
Those
exceptions appearing in Schedule B
of
a certain Title Insurance Policy issued by Chicago Title Insurance
Company
to Beneficiary with respect to the Property described in Exhibit A.
|
| 2. |
That
certain Memorandum of Agreement by and between Borrower, as lessor,
and
MetroPCS Texas, LLC, a Delaware limited liability company, with an
office
at 0000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, as lessee,
regarding a Communications Set Lease Agreement for the purpose of
installing, operating, and maintaining a communications facility
and other
improvements, to be recorded with the land records of Tarrant County,
Texas in a form reasonably satisfactory to
Beneficiary.
|
| 3. |
That
certain Memorandum of Agreement by and between Borrower, as lessor,
and
Southwestern Bell Wireless, LLC d/b/a Cingular Wireless, with an
office at
00000 Xxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, as lessee,
regarding a Lease Agreement for the purpose of constructing, operating
and
maintaining a radio transmission facility and all other activities
related
thereto, to be recorded with the land records of Tarrant County,
Texas in
a form reasonably satisfactory to Beneficiary.
|
EXHIBIT C
DEED
OF TRUST RIDER
Deed
of
Trust Rider attached to and made a part of that certain Deed of Trust, Security
Agreement, Assignment of Leases and Rents and Fixture Filing dated as of May
25,
2007, is executed and delivered by THE BOMBAY COMPANY, INC., a Delaware
corporation, with an address at 000 Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000
(“Grantor”),
to
XXXX XXXXXXXX, XX., an individual and resident of the State of Texas, having
an
address at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxx 00000, his successors
or substitutes (“Trustee”),
for
the benefit of GB MERCHANT PARTNERS, LLC, having an address of 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx Xxxxxxxxxxxxx 00000 (together with its successors and assigns,
“Beneficiary”).
With
intent to be legally bound, Xxxxxxx and Beneficiary agree that the following
terms and conditions are herein made a part of the Deed of Trust as an integral
part thereof. The provisions of this Rider are supplementary to the provisions
of the Deed of Trust to which this Rider is attached and to the extent any
provision of this Rider deals with the same subject matter as similar provisions
of the Deed of Trust, the provisions hereof are to be construed to expand such
similar provisions and not to limit the general application of any general
provision contained in the Deed of Trust. To the extent any provision of this
Rider conflicts with the Deed of Trust, the language in the Deed of Trust shall
control. In case any one or more provisions of this Rider may be found to be
invalid or unenforceable for any reason or in any respect, such invalidity
or
unenforceability shall not limit or impair enforcement any other provisions
of
this Rider.
1. REPRESENTATIONS
AND WARRANTIES.
The
Grantor hereby represents, covenants and warrants to Beneficiary as
follows.
1.1 Title;
First Lien Status.
Grantor
represents and warrants to Beneficiary and Trustee that (a) Grantor owns the
Property free and clear of any Liens except Permitted Encumbrances (subject
to
exceptions that do not, in the aggregate, materially impair the use of the
personal property and Property of the Borrowers taken as a whole), and (b)
this
Deed of Trust creates valid, enforceable second priority liens and security
interests against the Property except for the Permitted Encumbrances.
1.2 No
Leases.
There
are presently in effect no leases of the Property or any part thereof except
for
any leases not prohibited under the terms of the Loan Agreement and the
Permitted Encumbrances.
1.3 Court
Orders, etc..
Grantor
is not in default with respect to any order, writ, injunction, decree or demand
of any court or any administrative agency or governmental authority affecting
the Property or the use thereof.
1.4 Compliance
with Law.
To the
best of Grantor’s knowledge, the Property is in material compliance with all
applicable laws and governmental regulations, including but not limited to
those
governing zoning, land use, subdivision control, health, safety, fire protection
and protection of the environment.
2. CERTAIN
COVENANTS AND CONDITIONS.
The
Grantor covenants and agrees as follows.
2.1 Second
Lien Status.
Grantor
shall preserve and protect the second lien and security interest status of
this
Deed of Trust as provided in the Loan Agreement.
2.2 Maintenance
of Property; Alterations.
Grantor
shall keep and maintain the Property in accordance with the terms and provisions
of Sections 6.2 and 6.6 of the Loan Agreement.
2.3 Insurance.
The
Grantor agrees, at Xxxxxxx’s sole cost and expense, to keep the Property insured
at all times throughout the term of this Deed of Trust with policies of
insurance in accordance with the provisions of Section 6.4 of the Loan
Agreement and as follows:
(a) casualty
or physical hazard insurance on an “all risks” basis, (and, to the extent
available in the jurisdiction in which the Property is located, broad form
earthquake coverage in accordance with similar activities in similar geographic
areas), and building code, valuable papers, extra expenses, extended period
of
indemnity and electronic data processing coverages, with a full replacement
cost
endorsement (including builder’s risk during any period or periods of time that
construction or remodeling is being performed on the Property) and an “agreed
amount” clause, in an amount equal to 100% of the full replacement cost of all
improvements (excluding only the reasonable value of footings and foundations)
and Grantor’s contents therein, in such amounts which are customary for Persons
engaged in the same or similar business and with nationally recognized insurance
companies; and
(b) if
at any
time the Property or any portion thereof is located in a “Flood Hazard Area”
pursuant to the Flood Disaster Protection Act of 1973 (or any successor
thereto), broad form flood insurance in such total amount as Beneficiary shall
reasonably require from time to time (or the maximum amount available, if less);
and
(c) insurance
with respect to other insurable risks and coverages relating to the Property
(including, without limitation, commercial general liability insurance, business
interruption, boiler insurance, builder’s risk insurance, worker’s compensation
insurance, and product liability insurance) in such amounts which are customary
for Persons engaged in the same or similar business and with nationally
recognized insurance companies.
All
such
insurance policies (other liability policies) shall be first payable in case
of
loss to Beneficiary by means of a standard non-contributory Beneficiary clause,
shall be primary and without right of contribution from other insurance which
may be available, shall waive any right of setoff, counterclaim, subrogation,
or
any deduction in respect of any liability of
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Grantor
and Beneficiary, shall provide that with respect to Beneficiary, the insurance
shall not be invalidated by any action or inaction by Grantor including without
limitation any representations made by Grantor in the procurement of such
insurance. All liability insurance policies shall include Beneficiary as an
additional insured.
2.4 Casualties
and Takings.
All
proceeds of any property or hazard insurance or awards of damages on account
of
any taking or condemnation for public use of or injury to the Property shall
be
remitted to Beneficiary in accordance with the provisions of Section 2.5 of
the
Loan Agreement.
2.5 Notice
of Condemnation.
Grantor, immediately upon obtaining knowledge of the institution of any
proceeding for the condemnation or requisition of the Property or any portion
thereof, shall notify Beneficiary of the pendency of such proceeding. The
Beneficiary may participate in such proceeding, and Grantor from time to time
shall deliver to Beneficiary all instruments requested by Beneficiary to permit
such participation.
2.6 Leases;
Assignments; Subordination.
Except
for Leases entered into in the ordinary course of business and consistent with
past practices, Grantor shall not lease the Property or any part thereof without
the prior written consent of Beneficiary, which consent shall not be
unreasonably withheld, conditioned or delayed. If Grantor shall enter into
a
Lease, Grantor shall faithfully keep, observe and satisfy all the obligations
on
the part of the lessor to be kept, performed and satisfied under every Lease
from time to time in force with reference to the Property, and shall not alter
or terminate any such Lease, or any guarantee of such Lease, except in the
ordinary course of business, or accept any rentals for more than one month
in
advance. At any time on notice from Beneficiary, Grantor shall submit to
Beneficiary for examination all such Leases and on the demand of Beneficiary,
shall execute and deliver a separate instrument collaterally assigning any
or
all such Leases, or the rents and profits thereof, in form satisfactory to
Beneficiary. The Beneficiary shall have the right, by the execution of suitable
written instruments from time to time, to subordinate this Deed of Trust, and
the rights of Beneficiary hereunder, to any Lease or Leases from time to time
in
force with reference to the Property, and, on the execution of any such
instrument, this Deed of Trust shall be subordinate to the Lease for which
such
subordination is applicable with the same force and effect as if such Lease
had
been executed and delivered, and a notice thereof recorded to the extent
required to give notice to third persons, prior to the execution, delivery
and
recording of this Deed of Trust.
2.7 Prior
Deeds of Trust.
If this
Deed of Trust, by its terms, is now, or at any time hereafter, becomes subject
or subordinate to a prior deed of trust or mortgage, Grantor shall fully perform
its obligations under such prior deed of trust or mortgage and shall not,
without the consent of Beneficiary, agree to the modification, amendment or
extension of the terms or conditions of such prior deed of trust or mortgage.
Nothing contained in this Section 2.7 is intended, nor shall it be deemed,
to constitute consent by Beneficiary to a subordination of the lien of this
Deed
of Trust.
2.8 Transfer
of Ownership.
Grantor
shall not sell or permit any transfer of any interest in the Property, or any
part thereof, without the prior express written consent of Beneficiary, except
as expressly permitted by the Loan Agreement.
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2.9 Priority
of Lien; After-Acquired Property.
This
Deed of Trust is and will be maintained as a valid deed of trust lien on the
Property subject only to the Permitted Encumbrances. All property of every
kind
acquired by Grantor after the date hereof which, by the terms hereof, is
required or intended to be subjected to the lien of this Deed of Trust shall,
immediately upon the acquisition thereof by Xxxxxxx, and without any further
mortgage, conveyance, assignment or transfer, become subject to the lien of
this
Deed of Trust. The Grantor will do, execute, acknowledge and deliver all and
every such further conveyances, mortgages, and assurances as Beneficiary shall
reasonably require for accomplishing the purposes of this Deed of Trust. If
any
action or proceeding shall be instituted to recover possession of the Property
or for the foreclosure of any other mortgage or Deed of Trust or for any other
purpose affecting the Property or this Deed of Trust, Grantor will immediately,
upon service thereof on or by Grantor, deliver to Beneficiary a true copy of
each precept, petition, summons, complaint, notice of motion, order to show
cause, and all other process, pleadings and papers, however designated, served
in any such action or proceeding.
2.10 Security
Agreement.
This
Deed of Trust shall constitute a security agreement under Article 9 of the
Uniform Commercial Code (the “Code”) in each applicable jurisdiction with
respect to Fixtures, now or hereafter acquired by Grantor, which might otherwise
be deemed “personal property” covered by this Deed of Trust. Grantor has granted
and does hereby grant Beneficiary a security interest in the Fixtures and in
all
additions and accessions thereto, renewals and replacements thereof and all
substitutions therefor and proceeds thereof for the purpose of securing all
Obligations now or hereafter secured by this Deed of Trust. The following
provisions relate to such security interest:
(1) Upon
the
occurrence of an Event of Default, Beneficiary shall have the rights and
remedies of a secured party under the Code as well as all other rights and
remedies available at law or in equity or under this Deed of Trust.
(2) This
Deed
of Trust also constitutes a Uniform Commercial Code financing statement which
is
being filed as a fixture filing. Grantor is the record owner of the real estate
described on Exhibit A hereto. The collateral is described herein, some of
which is or may become fixtures on the real estate described on Exhibit A
hereto. The names and mailing addresses of the Debtor (“Grantor” herein) and
secured party (“Beneficiary” herein) are set forth on the first page of this
Deed of Trust. The Debtor is a corporation organized under the laws of the
State
of Delaware and its organizational identification number, if any, is
0813243.
(3) Terms
defined in the Code and not otherwise defined in this Deed of Trust shall have
the same meanings in this subparagraph as are set forth in the Code. In the
event that a term is used in Article 9 of the Code and also in another
Article, the tern used in this subparagraph is that used in
Article 9.
(4) A
carbon,
photostatic or other reproduction of this Deed of Trust shall be sufficient
as a
financing statement. The Beneficiary shall have the right at any time to file
a
manually executed counterpart or a carbon, photostatic or other reproduction
of
this Deed of Trust as a financing statement in either the central or local
property records of any jurisdiction wherein the collateral is situated, but
the
failure of the Beneficiary to do so shall not impair (i) the effectiveness
of
this Deed of Trust as a fixture filing as
4
3. DEFAULT
AND REMEDIES.
3.1 Default;
Acceleration of Obligations.
If an
Event of Default shall occur and be continuing then Beneficiary may exercise
the
remedies provided under this Deed of Trust, under the Loan Agreement, under
any
and all other instruments and documents providing security for the Loan
Agreement, under any and all other instruments and documents providing security
for the Obligations, or under the laws of the state where the Property is
situated, or any one or more of such remedies. In the event that any Event
of
Default shall occur and be continuing, Beneficiary may declare the Indebtedness
immediately due and payable, in whole or in part, as provided in Section 8.2
of
the Loan Agreement, whereupon such Indebtedness shall be forthwith due and
payable without demand, presentment for payment, notice of nonpayment, protest,
notice of protest, notice of intent to accelerate, notice of acceleration and
all other notices or further actions of any kind, all of which are hereby
expressly waived by Grantor.
3.2 Operation
of Property.
Upon
the occurrence and during the continuance of an Event of Default, Beneficiary
may hold, lease, manage, operate or otherwise use or permit the use of the
Property, either itself or by other persons, firms or entities, in such manner,
for such time and upon such other terms as Beneficiary may deem to be prudent
and reasonable under the circumstances (making such repairs, alterations,
additions and improvements thereto and taking any and all other action with
reference thereto, from time to time, as Beneficiary shall deem necessary or
desirable), and apply all rents, profits and other amounts collected in
connection therewith in accordance with the other provisions of this Deed of
Trust.
3.3 Receiver.
Upon
the occurrence and during the continuance of an Event of Default, or actual
or
threatened waste to all or any part of the Property, or at any time while a
suit
is pending to foreclose or reform this Deed of Trust or to enforce any provision
hereof, Beneficiary shall have the right to apply without notice for the
appointment of a receiver of all or any part of the Property and the rents
and
profits thereof, and such receiver shall have all the broad and effective
functions and powers anywhere entrusted by a court to a receiver. Beneficiary
shall be entitled to the appointment of said receiver forthwith as a matter
of
absolute right, without regard to the adequacy or inadequacy of the value of
the
Property or the solvency or insolvency of Grantor or any other defendant, and
Grantor hereby waives any right to object to the appointment of such receiver
and expressly consents thereto. The income, profits, rents, issues and revenues
from the Property shall be applied by such receiver according to the provisions
of this Deed of Trust and the practice of the court appointing such receiver.
3.4 Certain
Terms of Foreclosure Sale.
At any
foreclosure sale, any combination, or all, of the Property or security given
to
secure the indebtedness secured hereby, may be offered for sale for one total
price, and the proceeds of such sale accounted for in one account without
distinction between the items of security or without assigning to them any
proportion of such proceeds, Grantor hereby waiving the application of any
doctrine of marshaling; and, in case Beneficiary, in the exercise of the power
of sale herein
5
3.5 Uniform
Commercial Code.
If the
provisions of the Uniform Commercial Code are applicable to any property or
security given to secure the indebtedness secured hereby which is sold in
combination with or as a part of the Property, or any part thereof, at one
or
more foreclosure sales, any notice required under such provisions shall be
fully
satisfied by the notice given in execution of the power of sale or other
provision in accordance with which the sale of real property pursuant to such
foreclosure is held with respect to the Property or any part
thereof.
3.6 Rights
Cumulative.
Each
right, power and remedy conferred upon Beneficiary by this Deed of Trust, the
Loan Agreement and by all other documents evidencing or securing the Obligations
and conferred by law or in equity is cumulative and in addition to every other
right, power and remedy herein or therein set forth or otherwise so existing,
may be exercised from time to time, as often, and in such order, as may be
deemed expedient by Beneficiary, and the exercise or the beginning of the
exercise of one right, power or remedy shall not be a waiver of the right to
exercise at the same time or thereafter any other right, power or remedy, and
no
delay or omission of, or discontinuance by, Beneficiary in the exercise of
any
right, power or remedy accruing hereunder or arising otherwise shall impair
my
such right, power or remedy, or be construed to be a waiver of any default
or
acquiescence therein. To constitute a waiver, there must be a writing signed
by
an officer of Beneficiary and directed to Grantor, specifying the
waiver.
3.7 Restoration.
In case
Beneficiary shall have proceeded to enforce any right or remedy under this
Deed
of Trust or the Loan Agreement by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, or shall
have been determined adversely 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 proceeding had been taken. In the event of a breach or default under
this Deed of Trust or under the Loan Agreement or any other Loan Document,
Grantor agrees to pay and to indemnify and hold harmless Beneficiary and the
Lenders for all reasonable expenses, attorneys’ fees, taxes and other court
costs occasioned by such breach or default.
4. MISCELLANEOUS.
4.1 Notices.
All
notices, requests and other communications hereunder shall be made in writing
and shall be given in the manner set forth in the Loan Agreement.
4.2 Successors
and Assigns; Joint and Several Liability; Partial
Invalidity.
All the
covenants and agreements of Grantor herein contained shall be binding upon
Grantor and the successors and assigns of Grantor. In case any one or more
of
the provisions of this Deed of Trust may be found to be invalid, or
unenforceable for any reason or in any respect, such invalidity or
unenforceability shall not limit or impair enforcement of any other provision
thereof.
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4.3 Future
Advances.
This
Deed of Trust shall secure, and constitute a lien upon the Property for, any
future advances made by Beneficiary or any of the Lenders under the Loan
Agreement at any time or times hereafter, whether or not any reference is made
to this Deed of Trust at the time such advances are made, and all such sums
shall be equally secured with and, to the extent permitted by law, have the
same
priority as the Obligations outstandings as of the date hereof. Grantor agrees
that if the outstanding balance of the Loan Agreement, principal and interest,
is ever repaid to zero (despite any express prohibition to the contrary
contained in the Loan Agreement), the lien and security interest of this Deed
of
Trust shall not be deemed released or extinguished by operation of law or
implied intent of the parties. This Deed of Trust shall remain in full force
and
effect as to any further advances under the Loan Agreement made after any such
zero balance until the Obligations are paid in full, all agreements to make
further advances and readvances have been terminated and this Deed of Trust
has
been canceled of record. Grantor waives the operation of any applicable statute,
case law or regulation having a contrary effect. The outstanding principal
amount of the indebtedness under the Loan Agreement will bear interest at a
variable rate or rates calculated in accordance with the terms and conditions
of
the Loan Agreement. The Loan Agreement is hereby incorporated into this Deed
of
Trust with regard to all references made to it in this Deed of
Trust.
4.4 Modification.
No
change, amendment, modification, cancellation or discharge of this Deed of
Trust, or any part hereof, shall be valid unless in writing and signed by the
parties hereto or their respective successors and assigns.
4.5 Captions.
Section
headings are inserted for convenience of reference only, do not form part of
this Deed of Trust and shall be disregarded for purposes of the interpretation
of the terms of this Deed of Trust.
4.6 Governing
Law.
This
Deed of Trust and the perfection and enforcement of the lien and security
interest hereunder (and any financing statement filed in connection herewith)
shall be governed by and construed and enforced in accordance with the laws
of
the state in which the Premises is situated.
7
