THE MAXIMUM AGGREGATE AMOUNT OF PRINCIPAL TO BE SECURED AT ANY
ONE TIME UNDER THIS DEED OF TRUST IS $4,172,416.00.
DEED OF TRUST
AMERICAN BUILDINGS COMPANY, Grantor
FIDELITY NATIONAL TITLE INSURANCE COMPANY, Trustee
for the use and
CANADIAN IMPERIAL BANK OF COMMERCE, Beneficiary
DATED AS OF DECEMBER 4, 1997
After recording, please return to:
Simpson Thacher & Bartlett
a partnership which includes
425 Lexington Avenue
New York, New York 10017
ATTN: Daniel E. Karp, Esq.
[Virginia - Fee]
DEED OF TRUST
THIS DEED OF TRUST, dated as of December 4, 1997 is made by AMERICAN BUILDINGS COMPANY, a Delaware corporation ("Grantor"), whose address is 1150 State Docks Road, Eufala, Alabama 36027, to Fidelity National Title Insurance Company of New York, a New York corporation having an office at 3961A Stillman Parkway, Glen Allen, Virginia 23060 ("Trustee"), for the benefit and use of CANADIAN IMPERIAL BANK OF COMMERCE, as administrative agent for the Lenders referred to below (in such capacity, "Beneficiary"), whose address is 425 Lexington Avenue, New York, New York 10017. References to this "Deed of Trust" shall mean this instrument and any and all renewals, modifications, amendments, supplements, extensions, consolidations, substitutions, spreaders and replacements of this instrument.
A. Grantor has entered into the Credit Agreement dated as of December 4, 1997 (as the same may be amended, supplemented or otherwise modified from time to time, the "Credit Agreement") with the several banks and other financial institutions from time to time parties thereto (the "Lenders") and Beneficiary.
Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement. References in this Deed of Trust to the "Default Rate" shall mean the interest rate provided for in Section 2.12(c) of the Credit Agreement for Base Rate Loans that are overdue.
B. Grantor is the owner of the parcel(s) of real property described on Exhibit A attached (such real property, together with all of the buildings, improvements, structures and fixtures now or subsequently located thereon (the "Improvements"), being collectively referred to as the "Real Estate").
C. Pursuant to the terms and conditions of the Credit Agreement, the Beneficiary and the Lenders are and will be making Loans to the Grantor and providing Letters of Credit on behalf of the Grantor.
D. The obligations of the Lenders to make the Loans and to issue Letters of Credit are conditioned upon, among other things, the execution and delivery by Grantor of this Deed of Trust.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor agrees that to secure:
(a) payment of the Obligations; and
(b) the performance and observance of each obligation, term, covenant
condition to be performed or observed by Grantor (the
"Performance Obligations") under, in connection with or pursuant
to the provisions of the Credit Agreement, any Notes, the Letters
of Credit, the Guarantee and Collateral Agreement, this Deed of
Trust and any of the other Security Documents or any of the other
GRANTOR HEREBY GRANTS TO TRUSTEE A LIEN UPON AND A SECURITY INTEREST IN, AND HEREBY CONVEYS, GRANTS, ASSIGNS, TRANSFERS AND SETS OVER TO BENEFICIARY AND TRUSTEE WITH DEED OF TRUST COVENANTS:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever of
Grantor, in possession or expectancy, in and to the Real Estate or any part
(C) all right, title and interest of Grantor in, to and under all
easements, rights of way, gores of land, streets, ways, alleys, passages,
sewer rights, waters, water courses, water and riparian rights, development
rights, air rights, mineral rights and all estates, rights, titles,
interests, privileges, licenses, tenements, hereditaments and appurtenances
belonging, relating or appertaining to the Real Estate, and any reversions,
remainders, rents, issues, profits and revenue thereof and all land lying
in the bed of any street, road or avenue, in front of or adjoining the Real
Estate to the center line thereof;
(D) all of the fixtures, chattels, business machines, machinery,
apparatus, equipment, furnishings, fittings and articles of personal
property of every kind and nature whatsoever, and all appurtenances and
additions thereto and substitutions or replacements thereof (together with,
in each case, attachments, components, parts and accessories) currently
owned or subsequently acquired by Grantor and now or subsequently attached
to, or contained in or used or usable in any way in connection with any
operation or letting of the Real Estate, including but without limiting the
generality of the foregoing, all screens, awnings, shades, blinds,
curtains, draperies, artwork, carpets, rugs, storm doors and windows,
furniture and furnishings, heating, electrical, and mechanical equipment,
lighting, switchboards, plumbing, ventilating, air conditioning and
air-cooling apparatus, refrigerating, and incinerating equipment,
escalators, elevators, loading and unloading equipment and systems, stoves,
ranges, laundry equipment, cleaning systems (including window cleaning
apparatus), telephones, communication systems (including satellite dishes
and antennae), televisions, computers, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, security systems,
motors, engines, machinery, pipes, pumps, tanks, conduits, appliances,
fittings and fixtures of every kind and description (all of the foregoing
in this paragraph (D) being referred to as the "Equipment");
(E) all right, title and interest of Grantor in and to all substitutes
and replacements of, and all additions and improvements to, the Real Estate
and the Equipment, subsequently acquired by or released to Grantor or
constructed, assembled or placed by Grantor on the Real Estate, immediately
upon such acquisition, release, construction, assembling or placement,
including, without limitation, any and all building materials whether
stored at the Real Estate or offsite, and, in each such case, without any
Deed of Trust, conveyance, assignment or other act by Grantor;
(F) all right, title and interest of Grantor in, to and under all
leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or occupancy
of the Real Estate or the Equipment or any part thereof, now existing or
subsequently entered into by Grantor and whether written or oral and all
guarantees of any of the foregoing (collectively, as any of the foregoing
may be amended, restated, extended, renewed or modified from time to time,
the "Leases"), and all rights of Grantor in respect of cash and securities
deposited thereunder and the right to receive and collect the revenues,
income, rents, issues and profits thereof, together with all other rents,
royalties, issues, profits, revenue, income and other benefits arising from
the use and enjoyment of the Trust Property (as defined below)
(collectively, the "Rents");
(G) all unearned premiums under insurance policies now or subsequently
obtained by Grantor relating to the Real Estate or Equipment and Grantor's
interest in and to all proceeds of any such insurance policies (including
title insurance policies) including the right to collect and receive such
proceeds, subject to the provisions relating to insurance generally set
forth below; and all awards and other compensation, including the interest
payable thereon and the right to collect and receive the same, made to the
present or any subsequent owner of the Real Estate or Equipment for the
taking by eminent domain, condemnation or otherwise, of all or any part of
the Real Estate or any easement or other right therein;
(H) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now owned or held or subsequently acquired by Grantor and described in the foregoing clauses (A) through (E) are collectively referred to as the "Premises", and those described in the foregoing clauses (A) through (H) are collectively referred to as the "Trust Property").
TO HAVE AND TO HOLD the Trust Property and the rights and privileges hereby granted unto Trustee, its successors and assigns for the uses and purposes set forth, until the Obligations are fully paid and the Performance Obligations fully performed.
Terms and Conditions
Grantor further represents, warrants, covenants and agrees with Trustee and Beneficiary as follows:
1. Warranty of Title. Grantor warrants that Grantor has good title to the Real Estate in fee simple and good title to, or a valid leasehold interest in, its other Trust Property, subject only to the matters that are set forth in Schedule B of the title insurance policy being issued to Grantee to insure the lien of this Deed of Trust and Section 7.3 of the Credit Agreement (the "Permitted Exceptions") and Grantor shall warrant, defend and preserve such title and the lien of the Deed of Trust thereon against all claims of all persons and entities. Subject only to the Permitted Exceptions, Grantor further warrants that it has the right to encumber the Trust Property under this Deed of Trust.
2. Payment of Indebtedness. Grantor shall pay the Obligations at the times and places and in the manner specified in the Credit Agreement and shall perform all the Performance Obligations.
3. Restrictions on Liens and Encumbrances. Except for the lien of this Deed of Trust, and except as expressly permitted under the Credit Agreement, Grantor shall not further deed, nor otherwise encumber the Trust Property nor create any lien, charge or encumbrance on the Trust Property, or any part thereof.
4. Due on Sale and Other Transfer Restrictions. Except as expressly permitted under the Credit Agreement, Grantor shall not sell, transfer, convey or assign all or any portion of, or any interest in, the Trust Property.
5. Insurance. (a) Grantor will maintain, with financially sound and reputable companies, insurance policies (i) insuring the Inventory, Equipment and Vehicles against loss by fire, explosion, theft and such other casualties as may be reasonably satisfactory to Beneficiary and (ii) insuring such Grantor, Beneficiary and the Lenders against liability for personal injury and property damage relating to such Inventory, Equipment and Vehicles, such policies to be in such form and amounts and having such coverage as may be reasonably satisfactory to Beneficiary and the Lenders.
(b) All such insurance shall (i) provide that no cancellation, material reduction in amount or material reduction in coverage thereof shall be effective until at least 30 days after receipt by Beneficiary of written notice thereof, (ii) name Beneficiary as insured party or loss payee, (iii) if reasonably requested by Beneficiary, include a breach of warranty clause and (iv) be reasonably satisfactory in all other respects to Beneficiary.
(c) Grantor shall deliver to Beneficiary and the Lenders a report of a reputable insurance broker with respect to such insurance during the month of November in each calendar year and such supplemental reports with respect thereto as Beneficiary may from time to time reasonably request.
6. Hazardous Material. Section 4.17 of the Credit Agreement is incorporated herein by this reference; provided, however, that all references to "Properties" shall only mean the "Premises," and all references to "Borrower or any of its Subsidiaries" shall only mean "Mortgagor."
7. Events of Default. The occurrence of an Event of Default under the Credit Agreement shall constitute an Event of Default hereunder.
8. Remedies. (a) Upon the occurrence of any Event of Default, Beneficiary may immediately take such action, without notice or demand, as it deems advisable to protect and enforce its rights against Grantor and in and to the Trust Property, including, but not limited to, the following actions, each of which may be pursued