exv4w23






Exhibit 4.23




DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES




SECURITY AGREEMENT AND FIXTURE FILING



from



REVLON CONSUMER PRODUCTS CORPORATION,



“Grantor”



to



FIRST AMERICAN TITLE INSURANCE COMPANY,



“Trustee”



for the use and benefit of



CITICORP USA, INC., AS COLLATERAL AGENT



“Beneficiary”



(COLLATERAL IS OR INCLUDES FIXTURES)



DATED AS OF NOVEMBER 23, 2009



This Deed of Trust has been prepared by

and after recording please return to:



Cravath, Swaine & Moore LLP

7825 Eighth Avenue

New York, New York 100019

Attention: John Gerhard, Esq.













 





North Carolina




(COLLATERAL IS OR INCLUDES FIXTURES)




DEED OF TRUST, ASSIGNMENT OF RENTS

AND LEASES SECURITY AGREEMENT AND FIXTURE FILING



This DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING is
subject to the terms and provisions of the SECOND AMENDED AND RESTATED INTERCREDITOR AND COLLATERAL
AGENCY AGREEMENT, dated as of November 23, 2009 (as such agreement may be amended, amended and
restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”),
among CITICORP USA, INC., as administrative agent for the multi-currency lenders and issuing
lenders, CITICORP USA, INC. as administrative agent for the term loan lenders, U.S. BANK NATIONAL
ASSOCIATION, as trustee for the Holders of the Notes (hereinafter, the “Noteholders”), CITICORP
USA, INC., as collateral agent for the Secured Parties, REVLON, INC., REVLON CONSUMER PRODUCTS
CORPORATION and each other Loan Party party thereto.



          This DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE
FILING, dated as of November 23, 2009 is made by REVLON CONSUMER PRODUCTS CORPORATION, a
Delaware corporation (“Grantor” or the “Company”), whose address is c/o Revlon, Inc., 237 Park
Avenue, New York 10017, Attention: Senior Vice President, Deputy General Counsel and Secretary, to
FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation (“Trustee”), whose address is 101
North Elm Street, Suite 100, Greensboro, North Carolina 27401, for the use and benefit of CITICORP
USA, INC., a Delaware corporation, in its capacity as Collateral Agent for the Noteholder Secured
Parties (as hereinafter defined) (in such capacity, “Beneficiary”, which term shall be deemed to
include the successors and assigns of Beneficiary), having an address at 388 Greenwich Street, New
York, New York 10013, Attention: James S. McCarthy. References to this “Deed of Trust” shall mean
this instrument and any and all renewals, modifications, amendments, amendment and restatements,
supplements, extensions, consolidations, substitutions, spreaders and replacements of this
instrument. All capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Indenture (as defined below).



RECITALS:



          WHEREAS, pursuant to the Indenture, dated as of the date hereof (as the same may be
amended, amended and restated, supplemented, increased or otherwise modified from time to time, the
“Indenture”), among the Company, REVLON, INC., a Delaware corporation (the “Parent Guarantor), and
certain domestic subsidiaries of the Grantor (the “Subsidiary Guarantors” — together with the
Parent Guarantor, the “Guarantors”) and U.S. Bank National Association (the “Indenture Trustee” or
“Noteholder Representative”), the Grantor has issued $330,000,000 aggregate principal amount of its
93/4% Senior Secured Notes Due 2015 (the “Notes”) upon the terms and subject to the conditions set
forth therein;


          WHEREAS, pursuant to the terms and conditions of the Indenture, the Second Amended and
Restated Intercreditor and Collateral Agency Agreement, dated as of the date hereof, has been
entered into among CITICORP, as administrative agent for the Multi-Currency Lenders and Issuing
Lenders, CITICORP, as administrative agent for the Term Loan Lenders, the Indenture
Trustee, as trustee for the Noteholders (together with the Noteholders, the “Noteholder Secured
Parties”), CITICORP, as













 








collateral agent for the Secured Parties, the Company, the Parent Guarantor and each
other Loan Party party thereto;



          WHEREAS, Grantor is the owner and holder of fee simple title in and to all of the
real estate located in the County of Granville and State of North Carolina (the “State”), and more
fully described in Exhibit A attached hereto and by this reference made a part hereof (the
“Land”) together with all of the buildings, improvements, structures and fixtures now or
subsequently located on the Land (the “Improvements”) (the Land and the Improvements being
collectively referred to as the “Real Estate”), which Real Estate forms a portion of the Trust
Property described below; and


          WHEREAS, it is a condition precedent, among others, to the authentication of the
Notes by the Indenture Trustee that Grantor shall have executed and delivered this Deed of Trust to
the Trustee for the use and benefit of Beneficiary in its capacity as Collateral Agent;


          NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Grantor hereby agrees
with the Trustee and Beneficiary as follows:



Granting Clause




     Grantor, to secure the full, prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of all obligations of the Grantor and the Guarantors
under the Notes, the Indenture, the Parent Guarantee, the Subsidiary Guarantees, the Security
Documents and the other Indenture Documents (collectively, the “Noteholder Secured Obligations”),
hereby grants, bargains, sells and conveys to Trustee, its successors and assigns, and hereby
assigns, transfers and sets over to Trustee, the Trust Property (as defined below) in trust, with
power of sale, for the use and benefit of Beneficiary (in its capacity as Collateral Agent for the
Indenture Trustee and each holder of any Noteholder Secured Obligation) and grants Beneficiary and
Trustee a third priority lien and security interest in the Trust Property (as defined below).



     TO HAVE AND TO HOLD the Trust Property (as defined below) and the rights and
privileges hereby granted unto Trustee, its successors and assigns, in trust, in fee simple
forever, for the uses and purposes set forth, until (i) the Indenture is discharged or a legal
defeasance or covenant defeasance has been effected pursuant to the terms thereof or (ii) as
otherwise provided by the Indenture.



     The following property and rights and interests now owned or held or subsequently acquired by
Grantor and described in the following clauses (A) through (E) are collectively referred to as the
“Premises”, and those described in the following clauses (A) through (K) are collectively referred
to as the “Trust Property”), provided, that Trust Property shall in no event include any
“Other Excluded Assets” (as defined in the Indenture):




     (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 thereof;




     (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



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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 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), sprinkler systems, televisions, computers, and other fire prevention and
extinguishing apparatus and materials, security systems, motors, engines, machinery, pipes,
pumps, tanks, conduits, appliances, fittings and fixtures of every kind and description (all
of the foregoing in this paragraph (D) being referred to as the “Equipment”);




     (E) all right, title and interest of Grantor in and to all substitutes and replacements
of, and all additions and improvements to, the Real Estate and the Equipment, subsequently
acquired by or released to Grantor or constructed, assembled or placed by Grantor on the
Real Estate, immediately upon such acquisition, release, construction, assembling or
placement, including, without limitation, any and all building materials whether stored at
the Real Estate or offsite, and, in each such case, without any further mortgage,
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 and royalties arising from the use and enjoyment of the Trust Property (collectively,
the “Rents”’);




     (G) all books and records relating to or used in connection with the operation of the
Real Estate or the Equipment or any part thereof,




     (H) 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;



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     (I) all right, title and interest of Grantor in and to (i) all contracts from time to
time executed by Grantor or any manager or agent on its behalf relating to the ownership,
construction, maintenance, repair, operation or occupancy of the Real Estate or Equipment or
any part thereof, or to the sale or financing of the Real Estate or any part thereof, and
all agreements relating to the purchase or lease of any portion of the Real Estate or any
property which is adjacent or peripheral to the Real Estate, together with the right to
exercise such options and all leases of Equipment (collectively, the “Contracts”), (ii) all
consents, licenses, building permits, certificates of occupancy and other governmental
approvals relating to construction, completion, occupancy, use or operation of the Real
Estate or any part thereof (collectively, the “Permits”) and (iii) all drawings, plans,
specifications and similar or related items relating to the Real Estate (collectively, the
“Plans”);




     (J) any and all monies now or subsequently on deposit for the payment of real estate
taxes or special assessments against the Real Estate or for the payment of premiums on
insurance policies covering the foregoing property or otherwise on deposit with or held by
Beneficiary as provided in this Deed of Trust;




     (K) all proceeds, both cash and noncash, of the foregoing.



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 the rest of the Trust Property, subject only to (a) the
matters that are set forth as items 2 through 12 in Section II of Schedule B to the updated title
search delivered by First American Title Company and Title Insurance Commitment Number
NCS-418016-NY dated as of November 5, 2009 and (b) Permitted Liens (collectively, the “Permitted
Exceptions”), and Grantor shall warrant, defend and preserve such title and the rights granted by
this Deed of Trust with respect thereto against all claims of all persons and entities. Grantor
further warrants that it has the right to grant this Deed of Trust.


          2. Payment of Obligations. Grantor shall pay and perform the Noteholder
Secured Obligations at the times and places and in the manner specified in the Indenture Documents
and the Security Documents.


          3. Requirements. (a) Subject to the third sentence of this Section 3,
Grantor shall promptly comply with, or cause to be complied with, and conform to all present and
future laws, statutes, codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements, and irrespective of the nature of the work to be done, of each of the United States
of America, any state and any municipality, local government or other political subdivision thereof
and any agency, department, bureau, board, commission or other instrumentality of any of them, now
existing or subsequently created (collectively, “Governmental Authority”) which has jurisdiction
over the Trust Property and all covenants, restrictions and conditions now or later of record, in
each of the foregoing cases which may be applicable to any of the Trust Property, or to the use,
manner of use, occupancy, possession, operation, maintenance, alteration, repair or reconstruction
of any of the Trust Property. All present and future laws, statutes, codes, ordinances, orders,
judgments, decrees, rules, regulations and requirements of every Governmental Authority applicable
to Grantor or to any of the Trust Property and all covenants, restrictions, and



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conditions which now or later may be applicable to any of the Trust Property are collectively
referred to as the “Legal Requirements”. Grantor shall have the right, at Grantor’s sole cost and
expense, to contest or object to the validity of any Legal Requirements by appropriate legal
proceedings, but such right shall not be deemed or construed in any way as relieving, modifying or
extending Grantor’s covenants to comply therewith as provided in this Section 3(a),
provided, that Grantor has given prior written notice to Beneficiary of Grantor’s intent so
to contest and provided, further that, (i) Grantor shall demonstrate to
Beneficiary’s reasonable satisfaction that the legal proceedings shall operate conclusively to
prevent the sale or forfeiture of the Trust Property, or any part thereof, for failure to comply
with such Legal Requirements prior to final determination of such proceedings; (ii) if during such
contest a lien or cloud of title shall exist with respect to any of the Trust Property, Grantor
shall provide Beneficiary with good and sufficient bond or other security reasonably satisfactory
to Beneficiary in an amount equal to the aforesaid lien or cloud of title, or if the amount thereof
is uncertain, in an amount reasonably satisfactory to Beneficiary, and (iii) Beneficiary shall not
be subject either to civil or criminal liability for any failure by Beneficiary to comply with such
Legal Requirements during the pendency of such contest.



          (b) From and after the date of this Deed of Trust, Grantor shall not by act or
omission permit any building or other improvement on any premises not subject to this Deed of Trust
to rely on the Premises or any part thereof or any interest therein to fulfill any Legal
Requirement, and Grantor hereby assigns to Beneficiary any and all rights to give consent for all
or any portion of the Premises or any interest therein to be so used. Grantor shall not by act or
omission impair the integrity of any of the Real Estate as a parcel separate and apart from all
other premises. Grantor represents that each parcel of the Real Estate constitutes a legal lot, in
compliance with all subdivision laws and similar Legal Requirements. Any act or omission by
Grantor which would result in a violation of any of the provisions of this subsection shall be
void.


          4. Payment of Taxes and Other Impositions. (a) Except as set forth in
paragraph (d) below, promptly when due, Grantor shall pay and discharge all taxes relating to the
ownership and use of the Real Estate (including, without limitation, all real and personal
property, transfer and gains taxes), all charges for any easement or agreement maintained for the
benefit of any of the Trust Property, all general and special assessments, levies, permits,
inspection and license fees, all water and sewer rents and charges and all other public charges
even if unforeseen or extraordinary, imposed upon or assessed against or which may become a lien on
any of the Trust Property, or arising in respect of the occupancy, use or possession thereof,
together with any penalties or interest on any of the foregoing (all of the foregoing are
collectively referred to as the “Impositions”). Upon request by Beneficiary, Grantor shall deliver
to Beneficiary (i) original or copies of receipted bills and cancelled checks evidencing payment of
such Imposition if it is a real estate tax or other public charge and (ii) evidence reasonably
acceptable to Beneficiary showing the payment of any other such Imposition. If by law any
Imposition, at Grantor’s option, may be paid in installments (whether or not interest shall accrue
on the unpaid balance of such Imposition), Grantor may elect to pay such Imposition in such
installments and shall be responsible for the payment of such installments with interest, if any.


          (b) Except as set forth in paragraph (d) below, nothing herein shall affect any
right or remedy of Trustee or Beneficiary under this Deed of Trust or otherwise, without notice or
demand to Grantor, to pay any Imposition after the date such Imposition (or installments thereof,
if Grantor elected to pay in installments as above provided) shall have become due, and to add to
the Noteholder Secured Obligations the amount so paid, together with interest from the time of
payment at the rate then payable on the Notes. Any sums paid by Trustee or Beneficiary in
discharge of any Impositions shall be (i) a charge on the Premises secured hereby prior to any
right or title to, interest in, or claim upon the Premises subordinate to the lien of this Deed of
Trust, and (ii) payable on demand by Grantor to Trustee or



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Beneficiary, as the case may be, together with interest at the rate then payable on the Notes
as set forth above.



          (c) Grantor shall not claim, demand or be entitled to receive any credit or credits
toward the satisfaction of this Deed of Trust or on any interest payable thereon for any taxes
assessed against the Trust Property or any part thereof, and shall not claim any deduction from the
taxable value of the Trust Property by reason of this Deed of Trust.


          (d) Grantor shall have the right before any delinquency occurs to contest or object
in good faith to the amount or validity of any Imposition by appropriate legal proceedings, but
such right shall not be deemed or construed in any way as relieving, modifying, or extending
Grantor’s covenant to pay any such Imposition at the time and in the manner provided in this
Section unless (x) (i) Grantor has given prior written notice to Beneficiary of Grantor’s intent so
to contest or object to an Imposition, (ii) Grantor shall demonstrate to Beneficiary’s reasonable
satisfaction that the legal proceedings shall operate conclusively to prevent the sale of the Trust
Property, or any part thereof, to satisfy such Imposition prior to final determination of such
proceedings and (iii) Grantor shall furnish a good and sufficient bond or surety or other security
reasonably satisfactory to Beneficiary in the amount of the Impositions which are being contested
plus any interest and penalty which may be imposed thereon and which could become a charge against
the Real Estate or any part of the Trust Property or (y) such Imposition is of a type that is
permitted under Section 4.12(2)(ii) of the Indenture.


          (e) Upon written notice to Grantor, Beneficiary after the occurrence and during the
continuance of an Event of Default (as defined below) shall be entitled to require Grantor to pay
monthly in advance to Beneficiary the equivalent of 1/12th of the estimated annual Impositions.
Beneficiary may commingle such funds with its own funds and Grantor shall not be entitled to
interest thereon.


          5. Insurance. (a) Unless Beneficiary may otherwise agree, Grantor shall
maintain or cause to be maintained on all of the Premises:




          (i) property insurance against loss or damage by fire, lightning, windstorm,
hail, water damage, earthquake and by such other further risks and hazards, excluding acts
of terrorism, as now are or subsequently may be covered by an “all risk” policy or a fire
policy covering “special” causes of loss commonly maintained by businesses similar to
Grantor. Grantor shall use its best efforts to obtain building ordinance law endorsements
in the policy. The policy limits shall be automatically reinstated after each loss except
for such coverages, as flood or earthquake, which are sublimited;




          (ii) comprehensive general liability insurance under a policy including the
“broad form CGL endorsement” (or which incorporates the language of such endorsement),
covering all claims for personal injury, bodily injury or death, or property damage
occurring on, in or about the Premises in an amount not less than $10,000,000 combined
single limit with respect to personal injury and property damage relating to any one
occurrence plus such excess limits as Beneficiary shall reasonably request from time to
time;




          (iii) when and to the extent reasonably required by Beneficiary, insurance
against loss or damage by any other risk commonly insured against by persons occupying or
using like properties in the locality or localities in which the Real Estate is situated;



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          (iv) insurance against business interruption, if applicable, in amounts
reasonably satisfactory to Beneficiary;




          (v) during the course of any construction or repair of Improvements,
comprehensive general liability insurance (including coverage for elevators and escalators,
if any) under a policy including the “broad form CGL endorsement” (or which incorporates the
language of such endorsement). The policy shall include coverage for independent
contractors and completed operations. The completed operations coverage shall stay in
effect for two years after construction of any Improvements has been completed. The policy
shall provide coverage on an occurrence basis against claims for personal injury, including,
without limitation, bodily injury, death or property damage occurring on, in or about the
Premises and the adjoining streets, sidewalks and passageways, such insurance to afford
immediate minimum protection to a combined single limit of not less than $10,000,000 with
respect to personal injury, bodily injury or death to any one or more persons or damage to
property;




          (vi) during the course of any construction or repair of the Improvements,
workers’ compensation insurance (including employer’s liability insurance) for all employees
of Grantor engaged on or with respect to the Premises in such amounts as are established by
law;




          (vii) during the course of any construction, addition, alteration or repair
of the Improvements, builder’s risk completed value form insurance or other insurance
providing the same coverage against “all risks of physical loss,” including collapse, water
damage, flood and earthquake and transit coverage, during construction or repairs of the
Improvements, with deductible reasonably approved by Beneficiary, covering the total value
of work performed and equipment, supplies and materials furnished (with an appropriate limit
for soft costs in the case of construction);




          (viii) boiler and machinery property insurance covering pressure vessels, air
tanks, boilers, machinery, pressure piping, heating, air conditioning and elevator equipment
and escalator equipment, provided the Improvements contain equipment of such nature in such
amounts as are normal and usual for a business of similar size and complexity as Grantor;




          (ix) if any portion of the Premises are located in an area identified as a
special flood hazard area by the Federal Emergency Management Agency or other applicable
agency, flood insurance in an amount which is available and reasonably satisfactory to
Beneficiary, but in no event less than the maximum limit of coverage available under the
National Flood Insurance Act of 1968, as amended; and




          (x) such other insurance in such amounts as Beneficiary may reasonably
request from time to time.



Unless Beneficiary may otherwise agree, each insurance policy (other than flood insurance written
under the National Flood Insurance Act of 1968, as amended, in which case to the extent available)
shall (i) provide that it shall not be cancelled, non-renewed or materially amended without 10-days
prior written notice to Beneficiary, and (ii) with respect to all property insurance, provide for
property damage deductibles not to exceed $500,000, contain a “Replacement Cost Endorsement”
without any deduction made for depreciation and with no co-insurance penalty (or attaching an
agreed amount endorsement reasonably satisfactory to Beneficiary), with loss payable solely to the
Beneficiary (modified to the extent available under such policy, to provide that proceeds in the
amount of replacement cost may be retained




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by Beneficiary without the obligation to rebuild) when an Event of Default has occurred and is
continuing; if no Event of Default has occurred and is continuing, with loss in excess of
$1,000,000 payable solely to Beneficiary (modified, if necessary, to provide that proceeds shall be
applied by Beneficiary toward the cost of rebuilding the Improvements) as its interest may appear,
without contribution, under a “standard” or “New York” mortgagee clause reasonably acceptable to
Beneficiary and be written by insurance companies having an A.M. Best Company, Inc. rating of A or
higher and a financial size category of not less than X, or otherwise as approved by Beneficiary.
Liability insurance policies shall name Beneficiary (and Trustee, if Trustee shall so request) as
an additional insured and contain a waiver of subrogation against Beneficiary (and Trustee, if
Trustee shall so request); all such policies shall indemnify and hold Beneficiary (and Trustee, if
Trustee shall so request) harmless from all liability claims occurring on, in or about the Premises
and the adjoining streets, sidewalks and passageways. Each policy shall expressly provide that any
proceeds which are payable to Beneficiary shall be paid by check payable to the order of
Beneficiary only and requiring the endorsement of Beneficiary only. If any required insurance
shall expire, be withdrawn, become void by breach of any condition thereof by Grantor or by any
lessee of any part of the Trust Property or become void or unsafe by reason of the failure or
impairment of the capital of any insurer, or if for any other reasonable reason whatsoever such
insurance shall become unsatisfactory to Beneficiary, Grantor shall promptly obtain new or
additional insurance reasonably satisfactory to Beneficiary. Grantor shall not take out any
separate or additional insurance which is contributing in the event of loss unless it is properly
endorsed and otherwise reasonably satisfactory to Beneficiary in all respects.



          (b) Grantor shall deliver to Beneficiary a certificate of insurance reasonably
acceptable to Beneficiary, on or prior to the date hereof. Grantor shall (i) pay as they become
due all premiums for such insurance and (ii) not later than 15 days prior to the expiration of each
policy evidenced pursuant to the provisions of this Section, deliver certificates of insurance, or
duplicate original or originals thereof, evidencing that such coverage was renewed in accordance
with the provisions of this section. Upon request of Beneficiary, Grantor shall use its best
efforts to cause its insurance underwriter or broker to certify to Beneficiary in writing that all
the requirements of this Deed of Trust governing insurance have been satisfied.


          (c) If Grantor is in default of its obligations to insure or deliver any such
prepaid policy or policies or insurance certificate, then Beneficiary, at its option and without
notice, may effect such insurance from year to year, and pay the premium or premiums therefor, and
Grantor shall pay to Beneficiary on demand such premium or premiums so paid by Beneficiary with
interest from the time of payment at the rate then payable on the Notes and the same shall be
deemed to be secured by this Deed of Trust and shall be collectible in the same manner as the
Noteholder Secured Obligations secured by this Deed of Trust.


          (d) Grantor shall increase the amount of property insurance required to equal 100%
replacement cost pursuant to the provisions of this Section at the time of each renewal of each
policy (but not later than 12 months from the date of this Deed of Trust and each successive 12
month period to occur thereafter) by using the F.W. Dodge Building Index or similar index used by
Grantor’s insurance carriers to determine whether there shall have been an increase in the
replacement value since the most recent adjustment and, if there shall have been such an increase,
the amount of insurance required shall be adjusted accordingly.


          (e) Grantor promptly shall comply with and conform to (i) all provisions of each
such insurance policy, and (ii) all requirements of the insurers applicable to Grantor or to any of
the Trust Property or to the use, manner of use, occupancy, possession, operation, maintenance,
alteration or repair



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of any of the Trust Property. Grantor shall not use or permit the use of the Trust Property
in any manner which would permit any insurer to cancel any insurance policy or void coverage
required to be maintained by this Deed of Trust.



          (f) If the Trust Property, or any part thereof, shall be destroyed or damaged by
fire or any other casualty, whether insured or uninsured, or in the event any material claim is
made against Grantor for any personal injury, bodily injury or property damage incurred on or about
the Real Estate, Grantor shall promptly give notice thereof to Beneficiary. If no Event of Default
shall have occurred and be continuing, Grantor shall have the right to adjust such loss, and the
insurance proceeds relating to such loss shall be paid over to Grantor; provided that Grantor
shall, promptly after any such damage, repair all such damage regardless of whether any insurance
proceeds have been received or whether such proceeds, if received, are sufficient to pay for the
costs of repair. If an Event of Default shall have occurred and be continuing, then Grantor
authorizes and empowers Beneficiary, at Beneficiary’s option and in Beneficiary’s sole discretion,
as attorney-in-fact for Grantor, to make proof of loss, to appear in and prosecute any action
arising from any policy, to collect and receive insurance proceeds and to deduct therefrom
Beneficiary’s expenses incurred in the collection process. Each insurance company concerned is
hereby authorized and directed to make payment for such loss in excess of $500,000 directly to
Beneficiary. Beneficiary shall have the right to require Grantor to repair or restore the Trust
Property, and Grantor hereby designates Beneficiary as its attorney-in-fact for the purpose of
making any election required or permitted under any insurance policy relating to repair or
restoration. The insurance proceeds or any part thereof received by Beneficiary may be applied by
Beneficiary toward reimbursement of all costs and expenses of Beneficiary in collecting such
proceeds, and the balance, at Beneficiary’s option in its sole and absolute discretion if an Event
of Default has occurred and is continuing, to the payment and performance of the Noteholder Secured
Obligations, to the restoration or repair of the property damaged, or released to Grantor. In the
event Beneficiary elects to release such proceeds to Grantor, Grantor shall be obligated to use
such proceeds to restore or repair the Trust Property. If no Event of Default has occurred and is
continuing, then the insurance proceeds or any part thereof received by Beneficiary shall be
applied by Beneficiary toward reimbursement of all costs and expenses of Beneficiary in collecting
such proceeds and the balance, if any, in the following order: first to the repair or restoration
of the damaged property and then to the payment and performance of the Noteholder Secured
Obligations, to fulfill any other obligation of Grantor, or released to the Grantor. Application
by Beneficiary of any insurance proceeds toward the last maturing installments of principal and
interest due or to become due on account of the Noteholder Secured Obligations shall not excuse
Grantor from making any regularly scheduled payments due thereunder, nor shall such application
extend or reduce the amount of such payments.


          (g) Upon written notice to Grantor, Beneficiary after the occurrence and continuance
of an Event of Default shall be entitled to require Grantor to pay monthly in advance to
Beneficiary the equivalent of 1/12th of the estimated annual premiums due on such insurance.
Beneficiary may commingle such funds with its own funds and Grantor shall not be entitled to
interest thereon.


          (h) Grantor may maintain insurance required under this Deed of Trust by means of one
or more blanket insurance policies maintained by Grantor; provided, however, that
the protection afforded under any such blanket policy shall be no less than that which would have
been afforded under a separate policy or policies relating only to the Trust Property.


          6. Restrictions on Liens and Encumbrances. Except for the lien of this Deed
of Trust, the lien of the Deed of Trust recorded to secure the Term Loan Agreement, the lien of the
Deed of Trust recorded to secure the Multi-Currency Credit Agreement, and Permitted Exceptions,
Grantor shall



9









 





not further mortgage, nor otherwise encumber the Trust Property nor create or suffer to exist
any lien, charge or encumbrance on the Trust Property, or any part thereof, whether superior or
subordinate to this Deed of Trust and whether recourse or non-recourse.



          7. Transfer Restrictions. Except as otherwise provided pursuant to Section
4.10 of the Indenture, Grantor shall not, directly or indirectly, sell, transfer, convey or assign
all or any portion of, or any interest in, the Trust Property, whether legal or equitable, by
outright sale, deed, installment sale contract, land contract, contract for deed, leasehold
interest, lease option, contract or any other method of conveyance of real property interests.


          8. Maintenance; No Alteration; Inspection; Utilities. (a) Grantor shall
maintain or cause to be maintained all the Improvements in good condition and repair and shall not
commit or suffer any waste of the Improvements. Unless the Beneficiary shall otherwise agree,
Grantor shall repair, restore, replace or rebuild promptly any part of the Premises which may be
damaged or destroyed by any casualty whatsoever. The Improvements shall not be demolished or
materially altered, nor any material additions built, without the prior written consent of
Beneficiary which consent shall not be unreasonably withheld.


          (b) Beneficiary and any persons authorized by Beneficiary shall have the right, upon
reasonable advance notice to Grantor and at reasonable times, to enter and inspect the Premises and
the right to inspect all work done, labor performed and materials furnished in and about the
Improvements and the right to inspect and make copies of all books, contracts and records of
Grantor relating to the Trust Property.


          (c) Grantor shall pay or cause to be paid when due all utility charges which are
incurred for gas, electricity, water or sewer services furnished to the Premises and all other
assessments or charges of a similar nature, whether public or private, affecting the Premises or
any portion thereof, whether or not such assessments or charges are liens thereon.


          9. Condemnation/Eminent Domain. Promptly upon obtaining knowledge of the
institution of any proceedings for the condemnation of the Trust Property, or any portion thereof,
Grantor will notify Beneficiary of the pendency of such proceedings. Grantor authorizes
Beneficiary, at Beneficiary’s option and in Beneficiary’s sole discretion, to commence, appear in
and participate, in Beneficiary’s or Grantor’s name, in any action or proceeding relating to any
condemnation of the Trust Property, or any portion thereof. If Beneficiary elects not to
participate in such condemnation proceeding, then Grantor shall, at its expense, diligently
prosecute any such proceeding and shall consult with Beneficiary, its attorneys and experts and
cooperate with them in any defense of any such proceedings. All awards and proceeds of
condemnation shall be assigned to Beneficiary to be applied in the same manner as insurance
proceeds, as provided above, and Grantor agrees to execute any such assignments of all such awards
as Beneficiary may reasonably request.


          10. Restoration. If Beneficiary is required to release funds to the Grantor
for restoration of the Trust Property or otherwise elects to release such funds to Grantor for such
restoration, then such restoration shall be performed only in accordance with the following
conditions, unless the Beneficiary shall otherwise agree:




          (i) prior to the commencement of any restoration, the plans and
specifications for such restoration, and the budgeted costs, shall be submitted to and
approved by Beneficiary;



10









 






          (ii) prior to making any advance of restoration funds, Beneficiary shall be
satisfied that the remaining restoration funds together with funds available to Grantor for
such restoration are sufficient to complete the restoration and to pay all related expenses,
including real estate taxes on the Premises, during restoration;




          (iii) at the time of any disbursement of the restoration funds, (A) no Event
of Default (as defined below) shall have occurred and be continuing, (B) no mechanics’ or
materialmen’s liens shall have been filed and remain undischarged, except those discharged
by the disbursement of the requested restoration funds and (C) a satisfactory bring-down or
continuation of title insurance on the Premises shall be delivered to Beneficiary;




          (iv) disbursements shall be made from time to time in an amount not exceeding
the cost of the work completed since the last disbursement, upon receipt of satisfactory
evidence of the stage of completion and of performance of the work in a good and workmanlike
manner and in accordance with the contracts, plans and specifications acceptable to
Beneficiary;




          (v) with respect to each advance of restoration funds, Beneficiary may retain
10% of the amount of such advance as a holdback until the restoration is fully completed;




          (vi) the restoration funds shall bear no interest and may be commingled with
Beneficiary’s other funds;




          (vii) Beneficiary may impose such other conditions as are customarily imposed
by construction lenders; and




          (viii) any restoration funds remaining after payment of the cost of the work
shall be retained by Beneficiary and shall be applied by Beneficiary, to the Noteholder
Secured Obligations.


          11. Leases. (a) Grantor shall not (i) execute an assignment or pledge of
any Lease, relating to all or any portion of the Trust Property other than in favor of Beneficiary,
or (ii) execute or permit to exist any Lease not permitted by Section 4.12(6) of the Indenture,
without the prior written consent of Beneficiary, such consent not to be unreasonably withheld or
delayed.


          (b) As to any Lease not permitted by Section 4.12(6) of the Indenture, which is
consented to by Beneficiary, Grantor shall:




          (i) promptly perform all of the provisions of the Lease on the part of the
lessor thereunder to be performed;




          (ii) promptly enforce all of the provisions of the Lease on the part of the
lessee thereunder to be performed;




          (iii) appear in and defend any action or proceeding arising under or in any
manner connected with the Lease or the obligations of Grantor as lessor or of the lessee
thereunder;




          (iv) exercise, within 5 days after a request by Beneficiary, any right to
request from the lessee a certificate with respect to the status thereof;



11









 






          (v) simultaneously deliver to Beneficiary copies of any notices of default
which Grantor may at any time forward to or receive from the lessee;




          (vi) promptly deliver to Beneficiary a fully executed counterpart of the
Lease; and




          (vii) promptly deliver to Beneficiary, upon Beneficiary’s request, an
assignment of the Grantor’s interest under such Lease.


          (c) Grantor shall deliver to Beneficiary, within 10 days after a written request by
Beneficiary, a written statement, certified by Grantor as being true, correct and complete,
containing the names of all lessees and other occupants of the Trust Property, the terms of all
Leases and the spaces occupied and rentals payable thereunder, and a list of all Leases which are
then in default, including the nature and magnitude of the default.


          (d) All Leases entered into by Grantor after the date hereof, if any, and all rights
of any lessees thereunder shall be subject and subordinate in all respects to the lien and
provisions of this Deed of Trust unless Beneficiary shall otherwise elect in writing.


          (e) As to any Lease now in existence or subsequently consented to by Beneficiary,
Grantor shall not accept a surrender or terminate, cancel, rescind, supplement, alter, revise,
modify or amend such Lease or permit any such action to be taken nor shall Grantor accept the
payment of rent more than 30 days in advance of its due date.


          (f) In the event of the enforcement by Beneficiary of any remedy under this Deed of
Trust, the lessee under each Lease shall, if requested by Beneficiary or any other person
succeeding to the interest of Beneficiary as a result of such enforcement, attorn to Beneficiary or
to such person and shall recognize Beneficiary or such successor in interest as lessor under the
Lease without change in the provisions thereof, provided however, that Beneficiary
or such successor in interest shall not be: (i) bound by any payment of an installment of rent or
additional rent which may have been made more than 30 days before the due date of such installment;
(ii) bound by any amendment or modification to the Lease made without the consent of Beneficiary
(which consent shall not be unreasonably withheld) or such successor in interest; (iii) liable for
any previous act or omission of Grantor (or its predecessors in interest); (iv) responsible for any
monies owing by Grantor to the credit of such lessee or subject to any credits, offsets, claims,
counterclaims, demands or defenses which the lessee may have against Grantor (or its predecessors
in interest); (v) bound by any covenant to undertake or complete any construction of the Premises
or any portion thereof, or (vi) obligated to make any payment to such lessee other than any
security deposit actually delivered to Beneficiary or such successor in interest. Each lessee or
other occupant, upon request by Beneficiary or such successor in interest, shall execute and
deliver an instrument or instruments confirming such attornment. In addition, Grantor agrees that
each Lease entered into after the date of this Deed of Trust shall include language to the effect
of subsections (d)-(f) of this Section; provided that the provisions of such subsections
shall be self-operative and any failure of any Lease to include such language shall not impair the
binding effect of such provisions on any lessee under such Lease.


          12. Further Assurances/Estoppel Certificates. To further assure
Beneficiary’s and Trustee’s rights under this Deed of Trust, Grantor agrees promptly upon written
request of Beneficiary or Trustee to do any act or execute any additional documents (including, but
not limited to, security agreements on any personalty included or to be included in the Trust
Property and a separate assignment



12









 








of each Lease in recordable form) as may be reasonably required by Beneficiary or Trustee to
confirm the rights or benefits conferred on Beneficiary or Trustee by this Deed of Trust. Grantor,
within 10 business days after written request, shall deliver, in form and substance reasonably
satisfactory to Beneficiary, a written statement, duly acknowledged, setting forth the amount of
the Noteholder Secured Obligations, and whether any offsets, claims, counterclaims or defenses
exist against the Noteholder Secured Obligations and certifying as to such other matters as
Beneficiary shall reasonably request.



          13. Grantor’s Existence, etc. Grantor represents and warrants that Grantor
is a duly organized and validly existing corporation in good standing under the laws of the state
of Delaware, and this Deed of Trust has been executed by a duly authorized officer thereof. This
Deed of Trust constitutes the legal, valid and binding obligation of Grantor, enforceable against
Grantor in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally.


          14. Hazardous Material. (a) As used in this Section 14, the following terms
shall have the meanings specified below:



     “Environmental Laws” shall mean any and all federal, national, state, provincial, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or requirements of
any governmental authority regulating, relating to or imposing liability or standards of conduct
concerning any hazardous or deleterious materials or the protection of the environment, natural
resources or human health and safety as it relates to environmental protection, as now or may at
any time hereafter be in effect, including, without limitation, the Clean Water Act, also known as
the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq., the Surface Mining Control and Reclamation
Act, 30 U.S.C. § 1201 et seq., the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. § 9601 et seq. (as amended by the Superfund Amendment and Reauthorization Act of
1986, Public Law 99-499, 100 Stat. 1613), the Emergency Planning and Community Right to Know Act,
42 U.S.C. § 1101 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the
Safe Drinking Water Act, 42 U.S.C. § 300F et seq., the Toxic Substances Control Act, 15 U.S.C. §
2601 et seq., and the Occupational Health and Safety Act, 29 U.S.C. § 651 et seq. (but only to the
extent it regulates occupational exposure to Hazardous Materials), together, in each case, with
each amendment thereto, and the regulations adopted and publications promulgated thereunder and all
substitutions therefor.



     “Hazardous Materials” shall mean any materials, wastes, or substances, defined, characterized
or regulated as hazardous, toxic, pollutant, contaminant, radioactive or words of similar meaning
in or under any Environmental Law, including without limitation asbestos, petroleum products and
material exhibiting the characteristics of ignitability, corrosivity, reactivity or extraction
procedure toxicity, as such terms are defined in connection with hazardous materials or hazardous
wastes or hazardous or toxic substances in any Environmental Law.



     “Material Adverse Effect” shall mean a material adverse effect upon (i) the business,
condition (financial or otherwise), operations, performance, properties or prospects of (A) the
Parent Guarantor or (B) the Company and its Subsidiaries taken as a whole, (ii) the ability of the
Company and its Subsidiaries taken as a whole to perform the obligations of the Company under the
Indenture Documents or (iii) the rights and remedies available to the Beneficiary, the Indenture
Trustee or any Noteholder Secured Party under the Indenture Documents.



13









 




          (b) Except as set forth in Exhibit B hereto and except to the extent provided in clause (c)
below:



     (i) the Trust Property does not contain any Hazardous Materials in concentrations which
violate any applicable Environmental Laws governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of Hazardous Materials;



     (ii) the Trust Property is in compliance with all Environmental Laws, including all applicable
federal, state and local standards and requirements regarding the generation, treatment, storage,
handling, use or disposal of Hazardous Materials at the Trust Property and there is no Hazardous
Materials contamination which could materially interfere with the continued operation of the Trust
Property or materially impair the fair saleable value thereof;



     (iii) none of the Company or any Subsidiary of the Company has received, or is aware of, any
existing or contemplated notice of violation or potential liability by any regulatory agency or
Person regarding environmental control matters or permit compliance with regard to the Trust
Property.



     (iv) Hazardous Materials have not been transferred from the Trust Property to any other
location in violation of any applicable Environmental Laws and the Company has not received notice
of any potential liability associated with such transferred materials;



     (v) there are no administrative actions or judicial proceedings by a Governmental Authority or
other Person pending or contemplated under any applicable Environmental Laws to which the Company,
any Subsidiary of the Company or any mortgagor is or will be named as a party with respect to the
Trust Property;



     (vi) none of the Real Estate described in this Deed of Trust is a “hazardous waste treatment
storage or disposal facility” for purposes of 40 C.F.R. Parts 264 and 265 (incorporated into the
15A North Carolina Administrative Code 13A.0109 and .0110); and



     (vi) none of the Real Estate described in this Deed of Trust is an “inactive hazardous
substance or waste disposal site” as the term is defined in North Carolina General Statutes Section
130A-310.


          (c) Each of the representations and warranties set forth in Section 14(b) is true and correct
with respect to each parcel of real property owned or operated by the Company or any of its
Subsidiaries, except to the extent that individually or in the aggregate with all items set forth
on Exhibit B and the facts and circumstances giving rise to any such failure to be so true and
correct would not be reasonably likely to have a Material Adverse Effect.


          (e) The Company will not, and will not permit any of its Subsidiaries to, cause or knowingly
permit the Trust Property to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose, transfer, produce or process Hazardous Materials, except in compliance in all
respects with all applicable Environmental Laws and in a manner that would not reasonably be
expected to result in a liability under any applicable Environmental Laws, nor release, discharge,
dispose of or permit or suffer any release or disposal as a result of any act or omission on its
part, or on the part of any tenant or subtenant, of Hazardous Materials onto any such property or
asset in violation of any Environmental Law or in a manner that would reasonably be expected to
result in a liability under any applicable



14









 








Environmental Laws, except where such non-compliance or liability would not be reasonably
likely to have a Material Adverse Effect.



          15. Events of Default. The term “Event of Default” as used in this Deed of
Trust shall have the meaning ascribed to such term in Article VI of the Indenture followed by the
delivery of a Notice of Actionable Default (as defined in the Intercreditor Agreement) to the
Beneficiary in its capacity as Collateral Agent.


          16. Remedies. (a) Subject to the Intercreditor Agreement and the
Indenture, upon the occurrence and during the continuance of any Event of Default, Beneficiary may
immediately take such action, without notice or demand, as it deems advisable to protect and
enforce its rights against Grantor and in and to the Trust Property, including, but not limited to,
the following actions, each of which may be pursued concurrently or otherwise, at such time and in
such manner as Beneficiary may determine, in its sole discretion, without impairing or otherwise
affecting the other rights and remedies of Beneficiary:




          (i) Beneficiary may elect to foreclose under power of sale, in which case it
shall be lawful for, and the duty of, Trustee, upon receipt by Trustee of a written
declaration of default and demand for sale by Beneficiary, to sell (and, in case of any
default of any purchaser, resell) the Trust Property, in whole or in part or parcels
(without regard to the right of any party to a marshalling of assets, Grantor hereby
expressly waiving any such right), such sale in whole or in part or parcels to be determined
by Trustee in his sole discretion (Grantor hereby expressly consenting thereto), at public
venue to the highest bidder for cash at the door of the Court House then customarily
employed for that purpose in the city where the Real Estate is located, after having given
such notice of hearing as to commencement of foreclosure proceedings and having obtained
such findings or leave of Court as may then be required by law and then having given such
notice of the time and place of sale and a description of the property to be sold and by
advertisement published as is provided by the laws of the State of North Carolina then in
effect, and by such other methods, if any, as Beneficiary may deem desirable or as may be
required or permitted by applicable law. The Trustee shall receive the proceeds of such
sale and, after retaining a reasonable commission for his services, together with reasonable
attorneys fees incurred by the Trustee in such proceeding, apply such proceeds to the cost
of sale, including, but not limited to, costs of collection, taxes, assessments, costs of
recording, service fees and incidental expenditures, the amount due on the Notes and the
other Noteholder Secured Obligations secured hereby and advancements and other sums expended
by the Beneficiary according to the provisions hereof and otherwise as required by the then
existing law relating to foreclosures. If permitted by the then existing law relating to
foreclosures, the Trustee may sell and convey the Trust Property under the power aforesaid,
although the Trustee has been, may now be or may hereafter be attorney or agent or employee
of the Beneficiary with respect to the Noteholder Secured Obligations or with respect to any
matter or business whatsoever. If permitted by the then existing law relating to
foreclosures, Trustee may adjourn from time to time any sale by him to be made under or by
virtue or this Deed of Trust by announcement at the time and place appointed for such sale
or for such adjourned sale or sales; and, except as otherwise provided by any applicable
provision of law, Trustee, without further notice or publication, except for any notice or
publication as may be required by the then existing law, may make such sale at the time and
place to which the same shall be adjourned.




          (ii) Beneficiary may, to the extent permitted by applicable law, (A)
institute and maintain an action of judicial foreclosure against all or any part of the
Trust Property, (B)



15









 







institute and maintain an action on the Noteholder Secured Obligations, or (C) take
such other action at law or in equity for the enforcement of this Deed of Trust or any of
the Indenture Documents as the law may allow. Beneficiary may proceed in any such action to
final judgment and execution thereon for all sums due hereunder, together with interest
thereon at the rate then payable on the Notes and all costs of suit, including, without
limitation, reasonable attorneys’ fees and disbursements. Interest at the rate then payable
on the Notes shall be due on any judgment obtained by Beneficiary from the date of judgment
until actual payment is made of the full amount of the judgment.




          (iii) Beneficiary may personally, or by its agents, attorneys and employees
and without regard to the adequacy or inadequacy of the Trust Property or any other
collateral as security for the Noteholder Secured Obligations enter into and upon the Trust
Property and each and every part thereof and exclude Grantor and its agents and employees
therefrom without liability for trespass, damage or otherwise (Grantor hereby agreeing to
surrender possession of the Trust Property to Beneficiary upon demand at any such time) and
use, operate, manage, maintain and control the Trust Property and every part thereof.
Following such entry and taking of possession, Beneficiary shall be entitled, without
limitation, (x) to lease all or any part or parts of the Trust Property for such periods of
time and upon such conditions as Beneficiary may, in its discretion, deem proper, (y) to
enforce, cancel or modify any Lease and (z) generally to execute, do and perform any other
act, deed, matter or thing concerning the Trust Property as Beneficiary shall deem
appropriate as fully as Grantor might do.


          (b) Beneficiary, in any action to foreclose this Deed of Trust in a judicial
procedure or in connection with the exercise of any non-judicial power of sale by Trustee, shall be
entitled to the appointment of a receiver. In case of a trustee’s sale or foreclosure sale, the
Real Estate may be sold, at Beneficiary’s election, in one parcel or in more than one parcel and
Beneficiary is specifically empowered (without being required to do so, and in its sole and
absolute discretion) to cause successive sales of portions of the Trust Property to be held.


          (c) Upon completion of any sale or sales made by Trustee under or by virtue of this
Deed of Trust and upon satisfaction of any up-set bid period required by law, Trustee shall execute
and deliver to the purchaser or purchasers at such sale or sales a good and sufficient instrument,
or good and sufficient instruments, conveying, assigning and transferring all estate, right, title
and interest of the Trustee in and to the property and rights sold. Any such sale or sales made
under the power of sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale, shall operate to divest all the estate, right, title,
interest, claim and demand whatsoever, whether at law or in equity, of Grantor in and to the
properties and rights to be sold, and shall be a perpetual bar both at law and in equity, of
Grantor and against any and all persons claiming or who may claim the same, or any part thereof
from, through or under Grantor. The purchaser at any foreclosure sale hereunder may disaffirm any
easement granted or Lease made in violation of any provision of this Deed of Trust, and may take
immediate possession of the Trust Property free from, and despite the terms of, such grant of
easement or rental or lease agreement.


          (d) In the event of any breach of any of the covenants, agreements, terms or
conditions contained in this Deed of Trust, Beneficiary or Trustee shall be entitled to enjoin such
breach and obtain specific performance of any covenant, agreement, term or condition and
Beneficiary and Trustee shall have the right to invoke any equitable right or remedy as though
other remedies were not provided for in this Deed of Trust.



16









 







          (e) Beneficiary and/or Trustee shall apply the net proceeds of any action taken by it or
Trustee pursuant to this Section 16 to the payment in whole or in part of the Noteholder Secured
Obligations, in such order as the Intercreditor Agreement shall prescribe, and only after such
application and after the payment by Beneficiary and/or Trustee of any other amount required by any
provision of law, need Beneficiary account for the surplus, if any, to Grantor.


          17. Right of Beneficiary to Credit Sale. Upon the occurrence of any sale
made under this Deed of Trust, whether made under the power of sale or by virtue of judicial
proceedings or of a judgment or decree of foreclosure and sale, Beneficiary may bid for and acquire
the Trust Property or any part thereof. In lieu of paying cash therefor, Beneficiary may make
settlement for the purchase price by crediting upon the Noteholder Secured Obligations or other
sums secured by this Deed of Trust the net sales price after deducting therefrom the expenses of
sale and the cost of the action and any other sums which Beneficiary is authorized to deduct under
this Deed of Trust. In such event, this Deed of Trust, the Indenture, the Notes and the other
Indenture Documents and Security Documents and documents evidencing expenditures secured hereby may
be presented to the person or persons conducting the sale in order that the amount so used or
applied may be credited upon the Noteholder Secured Obligations as having been paid.


          18. 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 willful negligence or misconduct, and hereby
waives any statutory fee and agrees to accept reasonable compensation, in lieu thereof, for any
services rendered by Trustee in accordance with the terms hereof.


          (b) Trustee, may resign at any time upon giving thirty (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 of Trustee, or absence from the State of North Carolina of Trustee, or in its sole discretion
for any reason whatsoever Beneficiary, without notice and without specifying the reason therefor
and without applying to any court, may 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 Real Estate is located.
Grantor hereby ratifies and confirms any and all acts which the herein-named Trustee, or his
successor or successors in this trust, shall do lawfully by virtue hereof. Grantor hereby agrees,
on behalf of itself and of 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 be
liable for its validity or its priority as a third deed of trust, or otherwise, nor shall Trustee
be answerable or responsible for performance of 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



17









 





protect the interest of the Beneficiary hereunder, and to the extent permitted by law they
shall be compensated and all expenses relating to the employment of such agents and/or attorneys,
including expenses of litigation, 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 shall be
recoverable to the extent permitted by law by all remedies at law or in equity by which the
Noteholder Secured Obligations may be recovered.



          (e) At any time, or from time to time, without liability therefor and without
notice, 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, (iii) join in granting any
easement thereon, or (iv) join in any extension agreement or any agreement subordinating the lien
or charge hereof.


          19. Appointment of Receiver. If an Event of Default shall have occurred and
be continuing, Beneficiary as a matter of right and without notice to Grantor, unless otherwise
required by applicable law, and without regard to the adequacy or inadequacy of the Trust Property
or any other collateral as security for the Noteholder Secured Obligations or the interest of
Grantor therein, shall have the right to apply to any court having jurisdiction to appoint a
receiver or receivers or other manager of the Trust Property, without requiring the posting of a
surety bond unless the same is required by applicable law and without reference to the adequacy or
inadequacy of the value of the Trust Property or the solvency or insolvency of Grantor or any other
party obligated for payment of all or any part of the Noteholder Secured Obligations, and whether
or not waste has occurred with respect to the Trust Property. Grantor hereby irrevocably consents
to such appointment and waives notice of any application therefor (except as may be required by
law). Any such receiver or receivers shall have all the usual powers and duties of receivers in
like or similar cases and all the powers and duties of Beneficiary in case of entry as provided in
this Deed of Trust, including, without limitation and to the extent permitted by law, the right to
enter into leases of all or any part of the Trust Property, and shall continue as such and exercise
all such powers until the date of confirmation of sale of the Trust Property unless such
receivership is sooner terminated.


          20. Extension, Release, etc. (a) Without affecting the encumbrance or
charge of this Deed of Trust upon any portion of the Trust Property not then or theretofore
released as security for the full amount of the Noteholder Secured Obligations, Beneficiary may,
from time to time and without notice, agree to (i) release any person liable for the Noteholder
Secured Obligations, (ii) extend the maturity or alter any of the terms of the indebtedness or any
guaranty thereof, (iii) grant other indulgences, (iv) release or reconvey, or cause to be released
or reconveyed at any time at Beneficiary’s option any parcel, portion or all of the Trust Property,
(v) take or release any other or additional security for any obligation herein mentioned, or (vi)
make compositions or other arrangements with debtors in relation thereto. If at any time this Deed
of Trust shall secure less than all of the principal amount of the Noteholder Secured Obligations,
it is expressly agreed that any repayments of the principal amount of the Noteholder Secured
Obligations shall not reduce the amount of the encumbrance of this Deed of Trust until the
encumbrance amount shall equal the principal amount of the Noteholder Secured Obligations
outstanding.


          (b) No recovery of any judgment by Beneficiary and no levy of an execution under any
judgment upon the Trust Property or upon any other property of Grantor shall affect the encumbrance
of this Deed of Trust or any liens, rights, powers or remedies of Beneficiary or Trustee hereunder,
and such liens, rights, powers and remedies shall continue unimpaired.



18









 







          (c) If Beneficiary shall have the right to foreclose this Deed of Trust or to direct
the Trustee to exercise its power of sale, Grantor authorizes Beneficiary at its option to
foreclose the lien of this Deed of Trust (or direct the Trustee to sell the Trust Property, as the
case may be) subject to the rights of any tenants of the Trust Property. The failure to make any
such tenants parties defendant to any such foreclosure proceeding and to foreclose their rights, or
to provide notice to such tenants as required in any statutory procedure governing a sale of the
Trust Property by Trustee, or to terminate such tenant’s rights in such sale will not be asserted
by Grantor as a defense to any proceeding instituted by Beneficiary to collect the Noteholder
Secured Obligations or to foreclose this Deed of Trust.


          (d) Unless expressly provided otherwise, in the event that Beneficiary’s interest in
this Deed of Trust and title to the Trust Property or any estate therein shall become vested in the
same person or entity, this Deed of Trust shall not merge in such title but shall continue as a
valid charge on the Trust Property for the amount secured hereby.


          21. Security Agreement under Uniform Commercial Code. (a) It is the
intention of the parties hereto that this Deed of Trust shall constitute a Security Agreement
within the meaning of the Uniform Commercial Code (the “Code”) of the State in which the Trust
Property is located. If an Event of Default shall occur and be continuing under this Deed of
Trust, then in addition to having any other right or remedy available at law or in equity,
Beneficiary shall have the option of either (i) proceeding under the Code and exercising such
rights and remedies as may be provided to a secured party by the Code with respect to all or any
portion of the Trust Property which is personal property (including, without limitation, taking
possession of and selling such property) or (ii) treating such property as real property and
proceeding with respect to both the real and personal property constituting the Trust Property in
accordance with Beneficiary’s rights, powers and remedies with respect to the real property (in
which event the default provisions of the Code shall not apply). If Beneficiary shall elect to
proceed under the Code, then ten days’ notice of sale of the personal property shall be deemed
reasonable notice and the reasonable expenses of retaking, holding, preparing for sale, selling and
the like incurred by Beneficiary shall include, but not be limited to, reasonable attorneys’ fees
and legal expenses. At Beneficiary’s request, Grantor shall assemble the personal property and
make it available to Beneficiary at a place designated by Beneficiary which is reasonably
convenient to both parties.


          (b) Grantor and Beneficiary agree, to the extent permitted by law, that: (i) all of
the goods described within the definition of the word “Equipment” are or are to become fixtures on
the Real Estate; and this Deed of Trust upon recording or registration in the real estate records
of the proper office shall constitute a financing statement filed as a “fixture filing” within the
meaning of Sections 9-334 and 9-502 of the Code. This Deed of Trust shall be effective as a
financing statement filed as a fixture filing covering the fixtures included within the Premises
and is to be filed for record in the real estate records of each county where any part of the
Premises (including said Fixtures) is situated. The real property to which the fixtures relate is
described on Exhibit A attached hereto. The record owner of the real property described on
Exhibit A attached hereto is Grantor. The name of the debtor for purposes of this
financing statement is the name of the Grantor set forth on the first page of this Deed of Trust,
and the name of the secured party for purposes of this financing statement is the name of the
Beneficiary set forth on the first page of this Deed of Trust. The mailing address of the
Grantor/debtor is the address of the Grantor set forth on the first page of this Deed of Trust.
The address of the Beneficiary/secured party from which information concerning the security
interest hereunder may be obtained is the address of the Beneficiary as set forth on the first page
of this Deed of Trust. Grantor is an organization that is a corporation organized under the laws
of the state of Delaware. Grantor’s organizational identification number is 2295691.



19









 







          (c) Grantor, upon reasonable request by Beneficiary from time to time, shall
execute, acknowledge and deliver to Beneficiary one or more separate security agreements, in form
reasonably satisfactory to Beneficiary, covering all or any part of the Trust Property and will
further execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, any
financing statement, affidavit, continuation statement or certificate or other document as
Beneficiary may reasonably request in order to perfect, preserve, maintain, continue or extend the
security interest under and the priority of this Deed of Trust and such security instrument.
Grantor further agrees to pay to Beneficiary on demand all reasonable costs and expenses incurred
by Beneficiary in connection with the preparation, execution, recording, filing and re-filing of
any such document and all reasonable costs and expenses of any record searches for financing
statements Beneficiary shall reasonably require. Grantor shall from time to time, on request of
Beneficiary, deliver to Beneficiary an inventory in reasonable detail of any of the Trust Property
which constitutes personal property. If Grantor shall fail to furnish any financing or
continuation statement within 10 days after request by Beneficiary, then pursuant to the provisions
of the Code, Grantor hereby authorizes Beneficiary, without the signature of Grantor, to execute
and file any such financing and continuation statements. The filing of any financing or
continuation statements in the records relating to personal property or chattels shall not be
construed as in any way impairing the right of Beneficiary to proceed against any personal property
encumbered by this Deed of Trust as real property, as set forth above.


          22. Assignment of Rents. Grantor hereby absolutely and unconditionally
assigns, transfers, conveys and sets over to Beneficiary, the Rents as further security for the
payment and performance of the Noteholder Secured Obligations, and Grantor grants to Beneficiary
the right to enter the Trust Property for the purpose of collecting the same and to let the Trust
Property or any part thereof, and to apply the Rents on account of the Noteholder Secured
Obligations. The foregoing assignment and grant is present and absolute and shall continue in
effect until the Noteholder Secured Obligations are paid in full, but Beneficiary and Trustee
hereby waive the right to enter the Trust Property for the purpose of collecting the Rents and
Grantor shall be entitled to collect, receive, use and retain the Rents except during the
occurrence and continuance of an Event of Default under this Deed of Trust; such right of Grantor
to collect, receive, use and retain the Rents may be revoked by Beneficiary upon the occurrence and
during the continuance of any Event of Default under this Deed of Trust by giving not less than
five days’ written notice of such revocation to Grantor; in the event such notice is given, Grantor
shall pay over to Beneficiary, or to any receiver appointed to collect the Rents, any lease
security deposits, and shall pay monthly in advance to Beneficiary, or to any such receiver, the
fair and reasonable rental value as determined by Beneficiary for the use and occupancy of the
Trust Property or of such part thereof as may be in the possession of Grantor or any affiliate of
Grantor, and upon default in any such payment Grantor and any such affiliate will vacate and
surrender the possession of the Trust Property to Beneficiary or to such receiver, and in default
thereof may be evicted by summary proceedings or otherwise. Grantor shall not accept prepayments
of installments of Rent to become due for a period of more than one month in advance (except for
security deposits and estimated payments of percentage rent, if any).


          23. Trust Funds. All lease security deposits of the Real Estate shall be
treated as trust funds not to be commingled with any other funds of Grantor. Within 10 days after
request by Beneficiary, Grantor shall furnish Beneficiary reasonably satisfactory evidence of
compliance with this subsection, together with a statement of all lease security deposits by
lessees and copies of all Leases not previously delivered to Beneficiary, which statement shall be
certified by Grantor.


          24. Additional Rights. The holder of any subordinate lien or subordinate
deed of trust on the Trust Property shall have no right to terminate any Lease whether or not such
Lease is



20









 





subordinate to this Deed of Trust nor shall any holder of any subordinate lien or subordinate
deed of trust join any tenant under any Lease in any trustee’s sale or action to foreclose the lien
or modify, interfere with, disturb or terminate the rights of any tenant under any Lease. By
recordation of this Deed of Trust all subordinate lienholders and the trustees and beneficiaries
under subordinate deeds of trust are subject to and notified of this provision, and any action
taken by any such lienholder or trustee or beneficiary contrary to this provision shall be null and
void. Upon the occurrence and continuance of any Event of Default, Beneficiary may, in its sole
discretion and without regard to the adequacy of its security under this Deed of Trust, apply all
or any part of any amounts on deposit with Beneficiary under this Deed of Trust against all or any
part of the Noteholder Secured Obligations. Any such application shall not be construed to cure or
waive any Default or Event of Default or invalidate any act taken by Beneficiary on account of such
Default or Event of Default.



          25. Changes in Method of Taxation. In the event of the passage after the
date hereof of any law of any Governmental Authority deducting from the value of the Premises for
the purposes of taxation of any lien or deed of trust thereon, or changing in any way the laws for
the taxation of mortgages or deeds of trust or debts secured thereby for federal, state or local
purposes, or the manner of collection of any such taxes, and imposing a tax, either directly or
indirectly, on mortgages or deeds of trust or debts secured thereby, the holder of this Deed of
Trust shall have the right to declare the Noteholder Secured Obligations due on a date to be
specified by not less than 30 days’ written notice to be given to Grantor unless within such 30-day
period Grantor shall assume as an obligation hereunder the payment of any tax so imposed until the
Noteholder Secured Obligations shall have been paid in full and such assumption shall be permitted
by law.


          26. Notices. All notices, requests, demands and other communications
hereunder to be effective shall be in writing or by telecopy and unless otherwise expressly
provided herein, shall be deemed to have been sufficiently given or served when presented by hand
or when deposited in the mail by certified or return receipt requested mail, postage prepaid, or in
the case of telecopy notice, when sent, addressed to Grantor at the address given on the first page
of this Deed of Trust, to Beneficiary at the address given on the first page of this Deed of Trust
and to Trustee at the address given on the first page of this Deed of Trust. Any party may change
its address by notice to the other party. If any party other than Grantor shall be entitled to
receive copies of notices, demands or approvals, failure of Beneficiary or Trustee to send such
copies shall not impair the effectiveness of any notice sent to Grantor.


          27. No Oral Modification. This Deed of Trust may not be changed or
terminated orally, but may be waived, altered, modified or amended (a) by an instrument in writing,
duly executed by the Grantor and the Beneficiary or (b) in any other manner permitted by the
Indenture, and which, in either case, complies with the applicable provisions of the Indenture and
the Intercreditor Agreement. Any agreement made by Grantor and Beneficiary after the date of this
Deed of Trust relating to this Deed of Trust shall be superior to the rights of the holder of any
intervening or subordinate deed of trust, lien or encumbrance. Trustee’s execution of any written
agreement between Grantor and Beneficiary shall not be required for the effectiveness thereof as
between Grantor and Beneficiary.


          28. 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 invalidity, illegality or unenforceability shall not affect any
other provision hereof, but each shall be construed as if such invalid, illegal or unenforceable
provision had never been included. Notwithstanding to the contrary anything contained in this Deed
of Trust or in any provisions of the Indenture Documents, the obligations of Grantor and of any
other obligor under the Indenture Documents shall be subject to the limitation that Beneficiary
shall not charge, take or receive, nor shall Grantor or any other obligor be



21









 








obligated to pay to Beneficiary, any amounts constituting interest in excess of the maximum
rate permitted by law to be charged by Beneficiary.



          29. Grantor’s Waiver of Rights. To the fullest extent permitted by law,
Grantor waives the benefit of all laws now existing or that may subsequently be enacted providing
for (i) any appraisement before sale of any portion of the Trust Property, (ii) any extension of
the time for the enforcement of the collection of the Noteholder Secured Obligations or the
creation or extension of a period of redemption from any sale made in collecting such debt and
(iii) exemption of the Trust Property from attachment, levy or sale under execution or exemption
from civil process. To the full extent Grantor may do so, Grantor agrees that Grantor will not 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, valuation, stay, exemption, extension or redemption, or
requiring foreclosure of this Deed of Trust before exercising any other remedy granted hereunder
and Grantor, for Grantor and its successors and assigns, and for any and all persons ever claiming
any interest in the Trust Property, to the extent permitted by law, hereby waives and releases all
rights of redemption, valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of the secured indebtedness and marshalling in the event of exercise by
Trustee or Beneficiary of the power of sale or other rights hereby created.


          30. Remedies Not Exclusive. Beneficiary and Trustee shall be entitled to
enforce payment of the Noteholder Secured Obligations and performance of the Grantor’s obligations
under the Indenture Documents and the Security Documents and to exercise all rights and powers
under this Deed of Trust or under any of the other Indenture Documents or Security Documents or
other agreement or any laws now or hereafter in force, notwithstanding some or all of such
obligations may now or hereafter be otherwise secured, whether by deed of trust, mortgage, security
agreement, pledge, lien, assignment or otherwise. Neither the acceptance of this Deed of Trust nor
its enforcement, shall prejudice or in any manner affect Beneficiary’s or Trustee’s right to
realize upon or enforce any other security now or hereafter held by Beneficiary or Trustee, it
being agreed that Beneficiary and Trustee shall be entitled to enforce this Deed of Trust and any
other security now or hereafter held by Beneficiary or Trustee in such order and manner as
Beneficiary may determine in their absolute discretion, subject to the terms of the Intercreditor
Agreement. No remedy herein conferred upon or reserved to Trustee or Beneficiary is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative
and shall be in addition to every other remedy given hereunder or now or hereafter existing at law
or in equity or by statute. Every power or remedy given by any of the Indenture Documents or
Security Documents to Beneficiary or Trustee or to which any of them may otherwise be entitled,
may be exercised, concurrently or independently, from time to time and as often as may be deemed
expedient by Beneficiary or Trustee, as the case may be. In no event shall Beneficiary or Trustee,
in the exercise of the remedies provided in this Deed of Trust (including, without limitation, in
connection with the assignment of Rents, or the appointment of a receiver and the entry of such
receiver on to all or any part of the Trust Property), be deemed a “mortgagee in possession,” and
neither Beneficiary nor Trustee shall in any way be made liable for any act, either of commission
or omission, in connection with the exercise of such remedies, except for their own bad faith,
gross negligence or willful misconduct.


          31. Multiple Security. If (a) the Premises shall consist of one or more
parcels, whether or not contiguous and whether or not located in the same county, or (b) in
addition to this Deed of Trust, Beneficiary shall now or hereafter hold or be the beneficiary of
one or more additional mortgages, liens, deeds of trust or other security (directly or indirectly)
for the Noteholder Secured Obligations upon other property in the State in which the Premises are
located (whether or not such property is owned by Grantor or by others) or (c) both the
circumstances described in clauses (a) and (b) shall be true, then to the fullest extent permitted
by law, Beneficiary may, at its election, subject to the



22









 








terms of the Intercreditor Agreement, commence or consolidate in a single trustee’s sale or
foreclosure action all trustee’s sale or foreclosure proceedings against all such collateral
securing the Noteholder Secured Obligations (including the Trust Property), which action may be
brought or consolidated in the courts of, or sale conducted in, any county in which any of such
collateral is located. Grantor acknowledges that the right to maintain a consolidated trustee’s
sale or foreclosure action is a specific inducement to the purchase of the Notes by the
Noteholders, and Grantor expressly and irrevocably waives any objections to the commencement or
consolidation of the foreclosure proceedings in a single action and any objections to the laying of
venue or based on the grounds of forum non conveniens which it may now or
hereafter have. Grantor further agrees that if Trustee or Beneficiary shall be prosecuting one or
more foreclosure or other proceedings against a portion of the Trust Property or against any
collateral other than the Trust Property, which collateral directly or indirectly secures the
Noteholder Secured Obligations, or if Beneficiary shall have obtained a judgment of foreclosure and
sale or similar judgment against such collateral (or, in the case of a trustee’s sale, shall have
met the statutory requirements therefor with respect to such collateral), then, whether or not such
proceedings are being maintained or judgments were obtained in or outside the State in which the
Premises are located, Beneficiary may commence or continue any trustee’s sale or foreclosure
proceedings and exercise its other remedies granted in this Deed of Trust against all or any part
of the Trust Property and Grantor waives any objections to the commencement or continuation of a
foreclosure of this Deed of Trust or exercise of any other remedies hereunder based on such other
proceedings or judgments, and waives any right to seek to dismiss, stay, remove, transfer or
consolidate either any action under this Deed of Trust or such other proceedings on such basis.
The commencement or continuation of proceedings to sell the Trust Property in a trustee’s sale, to
foreclose this Deed of Trust or the exercise of any other rights hereunder or the recovery of any
judgment by Beneficiary or the occurrence of any sale by the Trustee in any such proceedings shall
not prejudice, limit or preclude the right of Beneficiary to commence or continue one or more
trustee’s sales, foreclosure or other proceedings or obtain a judgment against (or, in the case of
a trustee’s sale, to meet the statutory requirements for, any such sale of) any other collateral
(either in or outside the State in which the Real Estate is located) which directly or indirectly
secures the Noteholder Secured Obligations, and Grantor expressly waives any objections to the
commencement of, continuation of, or entry of a judgment in such other sales or proceedings or
exercise of any remedies in such sales or proceedings based upon any action or judgment connected
to this Deed of Trust, and Grantor also waives any right to seek to dismiss, stay, remove, transfer
or consolidate either such other sales or proceedings or any sale or action under this Deed of
Trust on such basis. It is expressly understood and agreed that to the fullest extent permitted by
law, Beneficiary may, at its election, and subject to the terms of the Intercreditor Agreement,
cause the sale of all collateral which is the subject of a single trustee’s sale or foreclosure
action at either a single sale or at multiple sales conducted simultaneously and take such other
measures as are appropriate in order to effect the agreement of the parties to dispose of and
administer all collateral securing the Noteholder Secured Obligations (directly or indirectly) in
the most economical and least time-consuming manner.



          32. Expenses; Indemnification. (a) Grantor shall pay or reimburse Trustee
and Beneficiary for all reasonable expenses incurred by Beneficiary or Trustee before and after the
date of this Deed of Trust with respect to any and all transactions contemplated by this Deed of
Trust including without limitation, the preparation of any document reasonably required hereunder
or any amendment, modification, restatement or supplement to this Deed of Trust, the delivery of
any consent, non-disturbance agreement or similar document in connection with this Deed of Trust or
the enforcement of any of Beneficiary’s or Trustee’s rights. Such expenses shall include, without
limitation, all title and conveyancing charges, recording and filing fees and taxes, mortgage
taxes, intangible personal property taxes, escrow fees, revenue and tax stamp expenses, insurance
premiums (including title insurance premiums), title search and title rundown charges, brokerage
commissions, finders’ fees, placement fees,



23









 








court costs, surveyors’, photographers’, appraisers’, architects’, engineers’, consulting
professional’s, accountants’ and attorneys’ fees and disbursements. Grantor acknowledges that from
time to time Grantor may receive statements for such expenses, including without limitation
attorneys’ fees and disbursements. Grantor shall pay such statements promptly upon receipt.



          (b) If (i) any sale (or any prerequisite to a sale), action or proceeding shall be
commenced by Beneficiary or Trustee (including but not limited to any sale of the Trust Property,
or any action to foreclose this Deed of Trust or to collect the Noteholder Secured Obligations), or
any action or proceeding is commenced to which Beneficiary or Trustee is made a party, or in which
it becomes necessary to defend or uphold the rights granted by this Deed of Trust (including,
without limitation, any proceeding or other action relating to the bankruptcy, insolvency or
reorganization of any Guarantor), or in which Beneficiary or Trustee is served with any legal
process, discovery notice or subpoena and (ii) in each of the foregoing instances such action or
proceeding in any manner relates to or arises out of this Deed of Trust or Beneficiary’s lending to
Grantor or any of the transactions contemplated by this Deed of Trust, then Grantor will promptly
reimburse or pay to Beneficiary and Trustee all of the reasonable expenses which have been or may
be incurred by Beneficiary and Trustee, respectively, with respect to the foregoing (including
reasonable counsel fees and disbursements), together with interest thereon at the rate then payable
on the Notes, and any such sum and the interest thereon shall be included in the Noteholder Secured
Obligations and have the full benefit of this Deed of Trust, prior to any right, or title to,
interest in or claim upon the Trust Property attaching or accruing to this Deed of Trust, and shall
be deemed to be secured by this Deed of Trust. In any action or proceeding to sell the Trust
Property, to foreclose this Deed of Trust, or to recover or collect the Noteholder Secured
Obligations, the provisions of law respecting the recovering of costs, disbursements and allowances
shall prevail unaffected by this covenant.


          (c) Grantor shall indemnify and hold harmless each of Beneficiary and Trustee and
each of their respective affiliates, and the respective directors, officers, agents and employees
of each of Beneficiary and Trustee and each of their respective affiliates from and against all
claims, damages, losses and liabilities (including, without limitation, reasonable attorneys’ fees
and expenses) arising out of or based upon any matter related to this Deed of Trust, the Trust
Property or the occupancy, ownership, maintenance or management of the Trust Property by Grantor,
including, without limitation, any claims based on the alleged acts or omissions of any employee or
agent of Grantor, other than any such claims, damages, losses and liabilities arising from the
gross negligence, willful misconduct or bad faith thereof. This indemnification shall be in
addition to any other liability which Grantor may otherwise have to Beneficiary or Trustee.


          33. Successors and Assigns. All covenants of Grantor contained in this Deed
of Trust are imposed solely and exclusively for the benefit of Beneficiary and Trustee and their
respective successors and assigns, and no other person or entity shall have standing to require
compliance with such covenants or be deemed, under any circumstances, to be a beneficiary of such
covenants, any or all of which may be freely waived in whole or in part by Beneficiary or Trustee
at any time if in the sole discretion of either of them such waiver is deemed advisable. All such
covenants of Grantor shall run with the land and bind Grantor, the successors and assigns of
Grantor (and each of them) and all subsequent owners, encumbrancers and tenants of the Trust
Property, and shall inure to the benefit of Beneficiary, Trustee and their respective successors
and assigns. Without limiting the generality of the foregoing, any successor to Trustee appointed
by Beneficiary shall succeed to all rights of Trustee as if such successor had been originally
named as Trustee hereunder. The word “Grantor” shall be construed as if it read “Grantors”
whenever the sense of this Deed of Trust so requires and if there shall be more than one Grantor,
the obligations of the Grantors shall be joint and several.



24









 







          34. No Waivers, etc. Any failure by Beneficiary to insist upon the strict
performance by Grantor of any of the terms and provisions of this Deed of Trust shall not be deemed
to be a waiver of any of the terms and provisions hereof, and Beneficiary or Trustee,
notwithstanding any such failure, shall have the right thereafter to insist upon the strict
performance by Grantor of any and all of the terms and provisions of this Deed of Trust to be
performed by Grantor. Beneficiary may release, regardless of consideration and without the
necessity for any notice to or consent by the beneficiary of any subordinate deed of trust or the
holder of any subordinate lien on the Trust Property, any part of the security held for the
obligations secured by this Deed of Trust without, as to the remainder of the security, in anywise
impairing or affecting this Deed of Trust or the priority of this Deed of Trust over any
subordinate lien or deed of trust.


          35. Authority of Beneficiary. The Grantor acknowledges that the rights and
responsibilities of the Beneficiary under this Deed of Trust with respect to any action taken by
the Beneficiary or the exercise or non-exercise by the Beneficiary of any right or remedy provided
for herein or resulting or arising out of this Deed of Trust shall, as between the Beneficiary and
the Noteholder Secured Parties, be governed by the Indenture and the Intercreditor Agreement, but,
as between the Beneficiary and the Grantor, the Beneficiary shall be conclusively presumed to be
acting with full and valid authority so to act or refrain from acting, and the Grantor shall be
under no obligation or entitlement to make any inquiry respecting such authority.


          36. Governing Law, etc. This Deed of Trust shall be governed by and
construed in accordance with the laws of the State of North Carolina, except that Grantor expressly
acknowledges that by their respective terms the Indenture and any Notes issued thereunder shall be
governed and construed in accordance with the laws of the state of New York, without regard to
principles of conflict of law. Grantor, Trustee and Beneficiary agree to submit to jurisdiction and
the laying of venue for any suit on this Deed of Trust in North Carolina.


          37. Waiver of Trial by Jury. Grantor, Trustee and Beneficiary each hereby
irrevocably and unconditionally waive trial by jury in any action, claim, suit or proceeding
relating to this Deed of Trust and for any counterclaim brought therein.


          38. Certain Definitions. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this Deed of Trust shall be
used interchangeably in singular or plural form and the word “Grantor” shall mean “each Grantor or
any subsequent owner or owners of the Trust Property or any part thereof or interest therein,” the
word “Beneficiary” shall mean “Beneficiary or any subsequent Collateral Agent for the Noteholder
Secured Parties pursuant to the Indenture and the Intercreditor Agreement,” the word “Trustee”
shall mean “Trustee and any successor trustee hereunder,” the word “Notes” or “Indenture” shall
mean “the Notes, the Indenture or any other evidence of indebtedness secured by this Deed of
Trust”, the word “person” shall include any individual, corporation, partnership, trust,
unincorporated association, government, governmental authority, or other entity, and the words
“Trust Property” shall include any portion of the Trust Property or interest therein. Whenever the
context may require, any pronouns used herein shall include the corresponding masculine, feminine
or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice
versa. The captions in this Deed of Trust are for convenience or reference only and in no way
limit or amplify the provisions hereof.


          39. Receipt of Copy. Grantor acknowledges that it has received a true copy
of this Deed of Trust.



25









 







          40. Present and Future Advances. This Deed of Trust is also given wholly or
partly to secure future advances and/or future obligations that may from time to time be made or
incurred under this Deed of Trust, future Notes issued under the Indenture, and all other sums from
time to time owing to the Noteholder Secured Parties under the Indenture Documents and the Security
Documents. The maximum principal amount that may be secured hereby at any one time is One Billion
Dollars ($1,000,000,000). The time period within which future advances may be made and future
obligations may be incurred is the period between the date hereof and the date thirty (30) years
from the date hereof.


          41. Miscellaneous. Grantor represents and warrants that this Deed of Trust
is not a purchase money mortgage as defined in North Carolina General Statutes Section 45-21.38,
the North Carolina Anti-Deficiency Statute.


          42. Attorneys’ Fees. All references to “attorneys’ fees” or to “reasonable
attorneys’ fees” herein and in the other Indenture Documents and Security Documents shall be deemed
to be “reasonable attorneys’ fees,” and as used herein, and in any other Indenture Documents and
Security Documents to the extent North Carolina law applies thereto, the phrase “reasonable
attorneys’ fees” and similar phrases shall mean attorneys’ fees at standard hourly rates actually
incurred, without giving effect to the statutory presumption set forth in Section 6-21.2 of the
North Carolina General Statutes.



26









 




          IN WITNESS WHEREOF, the Grantor has caused this instrument to be signed in its corporate name
by its duly authorized officer by authority of its Board of Directors, to be effective the day and
year first above written.



	 	 	 	 	 
	 	REVLON CONSUMER PRODUCTS CORPORATION,

a Delaware corporation

 	 
	 	By:  	/s/ Michael T. Sheehan
 	 
	 	Printed Name: Michael T. Sheehan	 
	 	Title:	Senior Vice President, Deputy


General Counsel and Secretary 	 
	 














 





	 	 	 	 	 	 	 
	STATE OF NEW YORK

	 	 	)	 	 	 
	 

	 	 	)	 	 	ss.
	COUNTY OF NEW YORK

	 	 	)	 	 	 
	 
	 	 	 	 	 	 





I certify that the following person personally appeared before me this day, acknowledging to me
that he/she signed the foregoing document: Michael T. Sheehan.




	 	 	 	 	 
	Date: November 20th, 2009

	 	/s/ Tanyika Hamilton
 

Official Signature of Notary
	 	 
	 
	 	 	 	 
	 

	 	Tanyika E. Hamilton
 

Notary’s printed or typed name, Notary Public
	 	 
	     (Official Seal)
	 	 	 	 






My commission expires: June 26, 2010














 








Exhibit A




Legal Description













 





Exhibit B




None