Prepared by: Return to:
State of Mississippi
County of ____________
____________ Judicial District
DEED OF TRUST AND SECURITY AGREEMENT
Name and Address of Grantor/Debtor: Name and Address of Trustee:
Name and Address of Secured Party/Beneficiary:
See Legal Description Attached as Exhibit B
THIS INSTRUMENT IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING
STATEMENTS.
THE NAMES OF THE DEBTOR ("GRANTOR") AND THE SECURED PARTY
("BENEFICIARY"), THE MAILING ADDRESS OF THE SECURED PARTY FROM WHICH
INFORMATION CONCERNING THE SECURITY INTEREST MAY BE OBTAINED, AND THE
MAILING ADDRESS OF THE DEBTOR IS DESCRIBED ON EXHIBIT "A" ATTACHED
HERETO, AND A STATEMENT INDICATING THE TYPES, OR DESCRIBING THE ITEMS, OF
COLLATERAL, ARE AS DESCRIBED ON PAGES 1 THROUGH 5 HEREOF, IN COMPLIANCE
WITH THE REQUIREMENTS OF ARTICLE 9,
SECTION 402 OF THE UNIFORM
COMMERCIAL CODE, MISSISSIPPI CODE ANN. §75-9-402.
Deed of Trust and Security Agreement
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This DEED OF TRUST AND SECURITY AGREEMENT (this "Deed of
Trust") is made
as of the ___________ day of ___________ , ___________ , by ___________ ., a ___________
corporation, having its principal place of business at ___________ , ___________ ("Grantor") in
favor of _________________ ("Trustee") for the benefit of ___________ , a ___________ ,
having its principal place of business at ___________ , ___________ ("Beneficiary").
W I T N E S S E T H:
WHEREAS, this Deed of Trust secures: (1) the full and punctual payment of the
indebtedness evidenced by those certain promissory
notes (collectively, the "Note") of even date
with this Deed of Trust, the final payment of which is due no later than the ___________ day
of
___________ (the "Maturity Date"), made by Grantor to the order of Beneficiary in the
aggregate principal face amount of ___________
($
___________ ),
with interest thereon at the
rates therein provided, together with any and all renewals, modifications, consolidations and
extensions of the indebtedness evidenced by the Note, any and all additional advances made by
Beneficiary to protect or preserve the Property (as hereinafter defined), any and all future
advances as may be made by Beneficiary and any other amounts required to be paid by Grantor
under any of the Loan Documents (as hereinafter defined), such indebtedness, advances and
amounts being hereinafter collectively referred to as the "Secured Indebtedness"; and (2) the full
performance by Grantor of all of the provisions, agreements, covenants and obligations
contained herein or in any of the other Loan Documents. The Note, this Deed of Trust, any other
deed of trust or mortgage, any loan agreement or construction disbursement agreement, and any
and all other documents evidencing, securing or relating to the indebtedness secured by this
Deed of Trust and all renewals, modifications, consolidations, and extensions of such documents
are herein collectively referred to as the "Loan Documents."
NOW, THEREFORE, IN CONSIDERATION of the sum of _________________
DOLLARS ($ ______ ), in hand paid, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to secure the Secured Indebtedness
and other obligations of Grantor set forth in this Deed of Trust and the other Loan Documents,
Grantor does hereby irrevocably bargain, sell, transfer, grant, convey, assign and warrant to:
(A) Trustee, its successors and assigns, in trust, with power of sale and right of entry and
possession, all of Grantor's present and future estate, right, title and interest in and to that certain
(as defined in real property located in the County and State
Exhibit "A" attached hereto and made a part hereof) and as more particularly described in
Exhibit "B" attached hereto and made a part hereof, together with all right, title, interest and
estate of Grantor, in and to all easements, rights-of-way, gaps, strips and gores of land, streets,
ways, alleys, sewers, sewer rights, waters, water courses, water rights, privileges, licenses,
tenements, hereditaments and appurtenances whatsoever, in any way appertaining to said real
property, whether now owned or hereafter acquired by Grantor, and the reversion(s),
remainder(s), possession(s), claims and demands of Grantor in and to the same, and the rights of
Grantor in and to the benefits of any conditions, covenants and restrictions now or hereafter
affecting said real property (collectively, the "Land"), together with all estate, right, title and
Deed of Trust and Security Agreement
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interest that Grantor now has or may hereafter acquire in:
(1)
all things now or hereafter affixed to the Land, including all buildings,
structures and improvements of every kind and description now or hereafter erected or placed
thereon, all furnishings, furniture, fixtures, machinery, equipment, appliances, systems, building
materials and personal property of every kind and nature whatsoever [including, without
limitation,
(a) all poultry and livestock systems, equipment and facilities (including, without
limitation, all poultry cages, feed and water delivery systems, cleaning, scraper and lagoon
systems, and egg collection and processing systems which shall include, but not be limited to, all
systems and equipment for washing, drying, grading, counting, transporting, packing, carton
closing, taping and dating), and (b) all gas and electric fixtures, all grain storage, milling and
drying systems, equipment and facilities, compressors, chillers, dryers, egg washers, egg
breaking machines, laboratory equipment, water and egg tanks, pasteurizers, sterilizers, baths,
freezer chests, incubators, cabinets and benches, fans, silos, bins, scales, bulk petroleum tanks,
fuel tanks, water and fuel pumping and metering equipment, feed plants (including milling,
storage and blending equipment), blowers, driers, hoists, radiators, heaters, engines and
machinery, boilers, transformers and related transmission and safety facilities, meters, elevators,
conveyors and motors, extensions, plumbing and heating fixtures and systems, signs, carpeting
and other floor coverings, ranges, washers, dryers, water heaters, air-conditioning, cooling,
heating and ventilation apparatus and systems
(including, without limitation, temperature
monitors and controls), tracks, dock lights and pads, building divider curtains, pulleys, cables,
slats, gates, computers and all hardware and software therefor, which are or shall be attached to
said buildings, structures or improvements, or which are or shall be located in, on or about the
Land, or which, wherever located
(including, without limitation, in warehouse or other storage
facilities or in the possession of or on the premises of vendors or manufacturers thereof), are
used or intended to be used in or in connection with the construction, fixturing, equipping,
furnishing, use, transportation of personal property to or from, operation or enjoyment of the
Land or the improvements thereon, and all replacements, repairs, additions, accessions or
substitutions or proceeds thereto or therefor, but the foregoing shall not include poultry,
livestock, feed or other inventory, rolling stock or accounts receivable therefrom or from any
products thereof; all of such things whether now or hereafter placed thereon being hereby
declared to be real property and hereinafter collectively referred to as the "Improvements";
(2)
all income, rents, royalties, revenue, issues, profits, proceeds and other
benefits from any and all of the Land and/or Improvements, subject, however, to the right, power
and authority hereinafter conferred upon Beneficiary or reserved to Grantor to collect and apply
such income, rents, royalties, revenue, issues, profits, proceeds and other benefits;
(3) all deposits made with respect to the Land and/or Improvements,
including, but not limited to, any security given to utility companies by Grantor, and all advance
payments of insurance premiums made by Grantor with respect thereto and all claims or
demands relating to such deposits, other security and/or such insurance;
(4) all damages, royalties and revenue of every kind, nature and description
whatsoever that Grantor may be entitled to receive, either before or after any Event of Default
(as herein after defined), from any person or entity owning or having or hereafter acquiring a
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right to the oil, gas or mineral rights and reservations of the Land, with the right in Beneficiary to
receive and apply the same to the Secured Indebtedness;
(5) all proceeds and claims arising on account of any damage to, or
Condemnation (as hereinafter defined) of, the Land and/or Improvements or any part thereof,
and all causes of action and recoveries for any loss or diminution in the value of the Land and/or
Improvements;
(6) all licenses (including, but not limited to, any operating licenses or similar
licenses), contracts, management contracts or agreements, guaranties, warranties, franchise
agreements, permits, authorities or certificates required or relating the ownership, use, operation
or maintenance of the Land and/or Improvements; and
(7) all names under or by which the Land and/or Improvements may at any
time be operated or known, and all rights to carry on business under any such names or any
variant thereof, and all trademarks, trade names, patents pending and goodwill relating to the
Land and/or Improvements.
TO HAVE AND TO HOLD the Real Property (as hereinafter defined), unto Trustee, its
successors and assigns, in trust, for the benefit of Beneficiary, its successors and assigns, subject,
however, to the terms, covenants and conditions contained herein.
All of the property described in paragraph (A) above is hereinafter collectively referred to
as the "Real Property."
(B) Beneficiary, its successors and assigns, as a secured party, a security interest in
Grantor's interest in any portion of the Real Property which may be construed to be personal
property, and in all other personal property of every kind and description, whether now existing
or hereafter acquired, now or at any time hereafter attached to, erected upon, situated in or upon,
forming a part of, appurtenant to, used or useful in the construction or operation of, or in
connection with, or arising from the use or enjoyment of all or any portion of, or from any lease
or agreement pertaining to, the Real Property, including:
(1) all water rights appurtenant to the Real Property together with all pumping
plants, pipes, flumes and ditches, all rights to the use of water, all rights in ditches for irrigation,
all water stock, shares of stock or other evidence of ownership of any part of the Real Property
that is owned by Grantor in common with others and all documents of membership in any
owners' or members' association or similar group having responsibility for managing or
operating any part of the Real Property;
(2).
all plans and specifications prepared for construction of the Improvements
and all studies, data and drawings related thereto; and all contracts and agreements of Grantor
relating to the aforesaid plans and specifications or to the aforesaid studies, data and drawings, or
to the construction of the Improvements;
(3) all equipment, machinery, fixtures and goods to the extent described in
paragraph (A)(1) above, and accounts, general intangibles, documents, instruments and chattel
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paper arising therefrom;
(4)
all substitutions and replacements of, and accessions and additions to, any
of the foregoing;
(5)
all sales agreements, deposit receipts, escrow agreements and other
ancillary documents and agreements entered into with respect to the sale to any purchasers of
any part of the Real Property, together with all deposits and other proceeds of the sale thereof;
and
(6)
all proceeds of any of the foregoing, including, without limitation,
proceeds of any voluntary or involuntary disposition or claim respecting any of the foregoing
(pursuant to judgment, condemnation award or otherwise) and all goods, documents, general
intangibles, chattel paper and accounts, wherever located, acquired with cash proceeds of any of
the foregoing or proceeds thereof.
All of the property described in paragraph (B)
above is hereinafter collectively referred
to as the "Personal Property." All of the Real Property and the Personal Property is herein
collectively referred to as the "Property."
PROVIDED, HOWEVER, if Grantor shall pay or cause to be paid to Beneficiary in full
the Secured Indebtedness, at the times and in the manner stipulated in the Loan Documents, and
shall keep, perform and observe all and singular the covenants and promises of Grantor in the
Loan Documents, then this Deed of Trust and all the properties, interests and rights hereby
granted, encumbered, transferred or assigned shall be released by Trustee and/or Beneficiary in
accordance with the laws of the State.
GRANTOR HEREBY COVENANTS AND AGREES FOR THE BENEFIT OF
BENEFICIARY AND TRUSTEE AS FOLLOWS:
ARTICLE I
COVENANTS
1.01
PERFORMANCE BY GRANTOR . Grantor shall pay the Secured Indebtedness to
Beneficiary and shall keep and perform each and every other obligation, covenant and agreement
of the Loan Documents.
1.02
WARRANTY OF TITLE. Grantor warrants that it is lawfully seized of that portion
of the Property which constitutes real property, that it holds marketable and indefeasible fee
simple absolute title to all such property, and that it has good right and is lawfully authorized to
sell, convey or encumber the Property subject only to those matters set forth in Exhibit "C"
attached hereto and made a part hereof (the "Permitted Exceptions"). Grantor further covenants
to warrant and forever defend all and singular the Property unto Beneficiary and Trustee forever
from and against all persons whomsoever claiming the same or any part thereof.
1.03 TAXES, LIENS AND OTHER CHARGES . Unless sums sufficient to pay the same
shall have been fully paid to Beneficiary as provided in section 1.06 hereof, Grantor shall pay all
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real estate and other taxes, assessments, water and sewer charges, vault and other license or
permit fees, levies, fines, penalties, interest, impositions, and other similar claims, general and
special, public and private, of any kind whatsoever which may be assessed, levied, confirmed,
imposed upon or arise out of or become due and payable out of, or become a lien on or against
the Property or any part thereof
(all of the foregoing, together with utility and refuse removal
charges, being hereinafter collectively referred to as the "Imposition(s)") not later than ten (10)
days before the dates on which such Impositions would become delinquent. Not later than the
date when any Impositions would become delinquent, Grantor shall produce to Beneficiary
official receipts of the appropriate imposing authority, or other evidence reasonably satisfactory
to Beneficiary evidencing the payment thereof in full. If Grantor shall in good faith, and by
proper legal action, contest any Impositions, and shall have deposited cash with Beneficiary (or
as Beneficiary may direct) as a reserve for the payment thereof plus all fines, interest, penalties
and costs which may become due pending the determination of such contest, in such amount as
Beneficiary may require, then Grantor shall not be required to pay the same during the
maintenance of said deposit and as long as such contest operates to prevent enforcement or
collection of such Impositions against, or the sale or forfeiture of, the Property for non-payment
thereof, and is prosecuted with due diligence and continuity, and shall not have been terminated
or discontinued adversely to Grantor. Upon termination of any such proceeding or contest,
Grantor shall pay the amount of such Impositions or part thereof as finally determined in such
proceeding or contest. However, if monies have been deposited with Beneficiary pursuant to this
Section 1.03, said funds shall be applied towards such payment and the excess, if any, shall be
returned to Grantor.
1.04 FURTHER TAXES . In the event of the passage, after the date of this Deed of Trust,
of any law deducting from the value of the Property, for the purposes of taxation, any lien
thereon or security interest therein, or changing in any way the laws now in force for the taxation
of mortgages, deeds of trust and/or security agreements or debts secured by mortgages, deeds of
trust and/or security agreements, or the manner of the collection of any such taxes, which has the
effect of imposing payment of the whole or any portion of any taxes, assessments or other
similar charges against the Property upon Beneficiary, the Secured Indebtedness shall
immediately become due and payable at the option of Beneficiary; provided, however, that such
election by Beneficiary shall be ineffective if prior to the due date thereof: (1) Grantor is
permitted by law (including, without limitation, applicable interest rate laws) to, and actually
does, pay such tax or the increased portion thereof (in addition to continuing to pay the Secured
Indebtedness as and when due and payable); and (2) Grantor agrees with Beneficiary in writing
to pay, or reimburse Beneficiary for the payment of any such tax or increased portion thereof
when thereafter levied or assessed against the Property or any portion thereof. Any money paid
by Beneficiary under this Section 1.04 shall be reimbursed to Beneficiary in accordance with
Section 3.10 hereof.
1.05 INSURANCE .
(a) Grantor, at its sole cost and expense, shall at all times, unless otherwise
indicated, provide, maintain and keep in force:
(1)
property insurance covering the Improvements and Personal
Property against loss or damage from such causes of loss as are embraced by insurance policies
of the type now known as "All Risks" or "Open Perils" property insurance on a replacement cost
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basis with an Agreed Value Endorsement waiving co-insurance, all in an amount not less than
one hundred percent (100%) of the then full replacement cost of all Improvements (exclusive of
the cost of excavations, foundations and footings below the lowest basement floor) and Personal
Property, without deduction for physical depreciation thereof, provided, however, if such
Improvements or Personal Property were constructed or purchased prior to ___________
, the
amount of such insurance shall be in an amount not less than eighty percent (80%) of such
replacement cost. Such property insurance shall include a Demolition and Increased Cost of
Construction Endorsement as well as such other insurance as Beneficiary may from time to time
designate to cover other risks and hazards affecting the Property;
(2) flood insurance in an amount equal to the lesser of 100% of the full
replacement cost of the Improvements, or the maximum amount of insurance obtainable;
provided, however, that such insurance shall be required only when all or any portion of the
Land is located within a 100-year flood plain or area designated as subject to flood by the
Federal Emergency Management Agency or any other governmental agency, or when required
by any federal, state or local law, statute, regulation or ordinance;
(3) builder's risk insurance insuring against loss or :damage from such
causes of loss as are embraced by insurance policies of the type now known as "Builder's Risks"
property insurance (written on an "all risk" or "open perils" basis), including, without limitation,
fire and extended coverage, collapse of the improvements to agreed limits, all in form and
substance acceptable to Beneficiary and
(i) as to property then subject to Restoration
(as defined
in Section 1.07 (b)) or any restoration accomplished in connection
with a Condemnation, in an
amount not less than the full replacement cost of such property, and (ii) as to any additional
improvements then being constructed, in an amount not less than the completed value on a non
reporting form, of the additional improvements then being constructed; provided, however, that
such insurance shall be required only during any period of Restoration or any restoration
accomplished in connection with a Condemnation, or any period of construction of any
additional improvements;
(4)
general liability insurance insuring against
claims for personal injury
(including, without limitation, bodily injury or death), property damage
liability and such other loss or damage from such causes of loss as are embraced by insurance
policies of the type now known as "Commercial General Liability" insurance, all in such amounts
as Beneficiary may require from time to time. Such insurance coverage shall be issued and
maintained on an "occurrence" basis; and
(5)
such other insurance and in such amounts, as may, from time to
time, be required by Beneficiary against other insurable hazards or risks, including, but not
limited to, environmental impairment liability coverage, nuclear reaction or radioactive
contamination coverage and/or earthquake coverage, which hazards or risks at the time are
commonly insured against, and provided such insurance is generally available, for property
similarly situated, due regard being given to the type of building, its construction, use and
occupancy.
(b)
Except as herein expressly provided otherwise, all policies of insurance
required under this Section
1.0
shall be
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issued by companies, and be in form, amount, and content and have an expiration date, approved
by Beneficiary and as to the policies of insurance required under subparagraphs
(1),
(2) and (3)
of Section 1.05 (a), shall contain a Standard Non-Contributory Mortgagee Clause or Lender's
Loss Payable Endorsement, or equivalents thereof, in form, scope and substance satisfactory to
Beneficiary, in favor of Beneficiary, and as to policies of insurance required under subparagraphs
(1),
(2) and (3) of Section 1.05 (a),
shall provide that the proceeds thereof ("Insurance Proceeds")
shall be payable to Beneficiary.
Grantor hereby authorizes and empowers Beneficiary to
settle, adjust or compromise any claims for loss, damage or destruction to the Property in excess
of
$250,000, regardless of whether there are Insurance Proceeds available or whether any such
proceeds are sufficient in amount to fully compensate for such loss or damage, but Beneficiary
shall not be obligated to so settle, adjust or compromise. Beneficiary shall be furnished with the
original or certified copy of each policy required hereunder, which policy shall provide that it
shall not be modified or cancelled without twenty
(20) days' prior written notice to Beneficiary.
At least twenty
(20) days prior to expiration of any policy required hereunder, Grantor shall
furnish Beneficiary appropriate proof of issuance of a policy continuing in force the insurance
covered by the policy so expiring.
Grantor shall furnish Beneficiary receipts for the payment of
premiums on such insurance policies or other evidence of such payment reasonably satisfactory
to Beneficiary in the event that such premiums have not been paid to Beneficiary pursuant to
Section 1.06 hereof. In the event that Grantor does not deposit with Beneficiary a new policy of
insurance with evidence of payment of premiums thereon at least twenty
(20) days prior to the
expiration of any policy, then Beneficiary may, but shall not be obligated to, procure such
insurance and pay the premiums therefor and any money paid by Beneficiary for such premiums
shall be reimbursed to Beneficiary in accordance with Section 3.10 hereof.
(c)
In the event of the foreclosure of this Deed of
Trust or other transfer of the title to the Property in extinguishment, in whole or in part, of the
Secured Indebtedness, all right, title and interest of Grantor in and to any insurance policy, or
Premiums
(as hereinafter defined) or payments in satisfaction of claims or any other rights
thereunder then in force, shall pass to the purchaser or grantee. Nothing contained herein shall
prevent accrual of interest as provided in the Note on any portion of the Secured Indebtedness to
which the Insurance Proceeds are to be applied until such time as the Insurance Proceeds are
actually received by Beneficiary and applied by Beneficiary to reduce the Secured Indebtedness.
1.06 ESCROW DEPOSITS
. Without limiting the effect of Sections 1.03, 1.04 and 1.05
hereof, Grantor shall pay to Beneficiary monthly at the time when the monthly installment of
interest, principal or principal and interest is payable, an amount equal to 1/12th of what
Beneficiary estimates is necessary to pay, on an annualized basis, all
(1) Impositions and (2)
such premiums for the insurance policies required under Section 1.05 (a)
hereof ("Premiums") to
enable Beneficiary to pay same at least thirty (30) days before the Impositions would become
delinquent and the Premiums are due, and, on demand, from time to time shall pay to
Beneficiary additional sums necessary to pay the Premiums and Impositions. No amounts so paid
shall be deemed to be trust funds, but may be commingled with the general funds of Beneficiary,
and no interest shall be payable thereon. In the event that Grantor does not pay such sums for
Premiums and Impositions, then Beneficiary may, but shall not be obligated to, pay such
Premiums and Impositions and any money so paid by Beneficiary shall be reimbursed to
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Beneficiary in accordance with Section 3.10 hereof. If an Event of Default occurs, Beneficiary
shall have the right, at its election, to apply any amounts so held under this Section 1.06 against
all or any part of the Secured Indebtedness, or in payment of the Premiums or Impositions for
which the amounts were deposited.
Grantor will furnish to Beneficiary bills for Impositions and
Premiums thirty (30) days before Impositions become delinquent and such Premiums become
due. The foregoing obligations of Grantor are subject to the condition that Grantor shall not be
required to pay such items unless and until
(i) an Event of Default occurs or
(ii) Beneficiary
requests such payments, which request may be made in Beneficiary's sole and absolute
discretion.
1.07 RESTORATION .
(a) After the happening of any casualty to the Property, whether or not
required to be insured against under the insurance policies to be provided by Grantor hereunder,
Grantor shall give prompt written notice thereof to Beneficiary generally describing the nature
and cause of such casualty and the extent of the damage to or destruction of the Property.
(b)
Grantor hereby assigns to Beneficiary all Insurance Proceeds which
Grantor may be entitled to receive. In the event of any damage to or destruction of, the Property,
and provided (1) an Event of Default does not currently exist, and (2) Beneficiary has determined
that
(i) its security has not been impaired, and (ii) the repair, restoration and rebuilding of any
portion of the Property that has been partially damaged or destroyed can be accomplished in full
compliance with all Requirements
(as defined in Exhibit "A" ) to the same condition, character
and general utility as nearly as possible to that existing prior to such damage or destruction and
at least equal value as that existing prior to such damage or destruction (the "Restoration"), then
Grantor shall commence and diligently pursue to completion the Restoration, provided, however,
if such portion of the Property partially damaged or destroyed has been fully depreciated and has
no book value according to generally accepted accounting principles in effect at the time of such
damage or destruction, Grantor shall have no obligation to complete any Restoration thereof. For
Insurance Proceeds in excess of
$250,000, Beneficiary may, but shall not be obligated to, hold
and disburse the Insurance Proceeds less the cost, if any, to Beneficiary of recovering such
proceeds including, without limitation, attorneys' fees and expenses, adjusters' fees, and fees
incurred in Beneficiary's performance of its obligations hereunder
(the "Net Insurance
Proceeds") in the manner hereinafter provided, to the Restoration. In the event that the above
conditions for Restoration have not been met, Beneficiary may, at its option, apply the Net
Insurance Proceeds to the reduction of the Secured Indebtedness in such order as Beneficiary
may determine and Beneficiary may declare the entire Secured Indebtedness immediately due
and payable.
(c)
In the event the Net Insurance Proceeds are to be used for the Restoration,
and the cost for such Restoration exceeds $250,`000, Grantor shall comply with Beneficiary's
Requirements For Restoration as set forth in Exhibit "D" attached hereto and made a part hereof.
Upon Beneficiary's receipt of a final certificate of occupancy or other evidence of approval of
appropriate governmental authorities for the use and occupancy of the Improvements and other
evidence requested by Beneficiary that the Restoration has been completed and the costs thereof
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have been paid in full, and satisfactory evidence that no mechanic's or similar liens for labor or
material supplied in connection with the Restoration are outstanding against the Property and
provided that an Event of Default does not currently exist, Beneficiary shall pay any remaining
Restoration Funds
(as defined in Exhibit "D" ) then held by Beneficiary to Grantor; provided,
however, nothing contained herein shall prevent Beneficiary from applying at any time the whole
or any part of the Restoration Funds to the curing of any Event of Default.
(d)
In the event that Beneficiary applies all or any portion of the Restoration
Funds to repay the unpaid Secured Indebtedness as provided in this Section
1.07, after payment
in full of the Secured Indebtedness, any remaining Restoration Funds shall be paid to Grantor.
1.08
CONDEMNATION . Should the Property or any part thereof be taken by reason
of any condemnation or similar eminent domain proceeding, or a grant or conveyance in lieu
thereof ("Condemnation"),
Beneficiary shall be entitled to all compensation, awards and other
payments or relief therefor, and shall be entitled at its option to commence, appear in and
prosecute in its own name any action or proceeding or to make any compromise or settlement in
connection with such Condemnation. Grantor hereby irrevocably constitutes and appoints
Beneficiary as its attorney-in-fact, and such appointment is coupled with an interest, to
commence, appear in and prosecute any action or proceeding or to make any compromise or
settlement in connection with any such Condemnation. All such compensation, awards, damages,
rights of action and proceeds
(collectively, the "Condemnation Proceeds") are hereby assigned to
Beneficiary, who shall, after deducting therefrom all its reasonable expenses, including attorneys'
fees
("Condemnation Expenses"), apply the remaining Condemnation Proceeds to repair any
damage to, and to restore the Improvements remaining on the portion of, the Property not taken
in the manner provided in Section 1.07 with respect to disposition of Net Insurance Proceeds;
provided, however, that at the time of application of the remaining Condemnation Proceeds:
(1)
there shall not exist an Event of Default;
(2) Grantor shall have paid to Beneficiary all sums in
excess of available Condemnation Proceeds, necessary to repair any damage to and restore the
Improvements remaining on the portion of the Property not taken; and (3) Beneficiary shall have
determined that its security is not impaired. After restoration of the remaining Improvements, or
in the event the conditions precedent for such restoration are not met, Beneficiary shall have the
right, after deducting therefrom the Condemnation Expenses, to apply the balance of the
Condemnation Proceeds to the Secured Indebtedness, in such manner and such order as
Beneficiary in its sole discretion shall determine, without adjustment in the dollar amount of the
installments due under the Note.
Nothing contained herein shall prevent the accrual of interest as
provided in the Note on any portion of the Secured Indebtedness to which the Condemnation
Proceeds are to be applied until such Condemnation Proceeds are actually received by
Beneficiary and so applied to reduce the Secured Indebtedness.
1.09
CARE AND. USE OF THE PROPERTY .
(a)
Grantor, at its sole cost and expense, shall keep the Property in good order,
condition, and repair, and make all necessary repairs thereto, interior and exterior, structural and
non-structural, ordinary and extraordinary, and foreseen and unforeseen.
Grantor shall abstain
from, and not permit, the commission of waste in or about the Property and shall not remove or
Deed of Trust and Security Agreement
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demolish, or alter in any substantial manner, the structure or character of any Improvements
without the prior written consent of Beneficiary.
(b)
Grantor shall at all times comply with all present or future Requirements
affecting or relating or pertaining in any way to the Property and/or the use, operation and/or the
maintenance thereof, and shall furnish Beneficiary, on request, proof of such compliance.
Grantor shall not use or permit the use of the Property, or any part thereof, for any illegal
purpose.
(c) Beneficiary and Beneficiary's representatives and designees shall have the
right, but not the duty, to enter the Property at reasonable times to inspect the same. Beneficiary
shall not be liable to Grantor or any person in possession of the Property with respect to any
matter arising out of such entry to the Property.
(d)
Grantor shall, from time to time, if and when reasonably required by
Beneficiary (1) perform a site investigation of the Property to determine the existence and levels
of Hazardous Substances
(as defined in Exhibit "A" ) on the Property,
(2) issue a report certifying
the results of such inspection to Beneficiary, and (3) take such remedial action as may be
required by Beneficiary based upon such report.
(e) Grantor shall use, or cause to be used, the Property continuously as and for
first class property of its type and kind at the time of the execution of this Deed of Trust. Grantor
shall not use, or permit the use of, the Property for any other use without the prior written
consent of Beneficiary.
(f) Grantor shall not initiate or acquiesce in a change in the zoning
classification of and/or restrictive covenants affecting the Property or seek any variance under
existing zoning ordinances applicable to the Property or use or permit the use of the Property in
such a manner which would result in such use becoming a non-conforming use under applicable
zoning ordinances or other applicable laws, ordinances, rules or regulations or subject the
Property to restrictive covenants without Beneficiary's prior written consent.
1.10
LEASES AND OTHER AGREEMENTS AFFECTING THE PROPERTY.
(a)
In order to further secure payment of the Secured
Indebtedness and the observance, performance and discharge of Grantor's obligations under the
Loan Documents, Grantor hereby assigns to Beneficiary all of Grantor's right, title, interest and
estate in, to and under all of the leases now or hereafter affecting the Property or any part thereof
and in and to all of the Rents and Profits
(as defined in Exhibit "A" ). Grantor shall have a mere
license to collect the Rents and Profits
(except as otherwise provided in this Deed of Trust),
which license shall terminate automatically without notice upon the occurrence of an Event of
Default, and upon the occurrence of such an Event of Default, Beneficiary shall be entitled to the
Rents and Profits without the necessity of Beneficiary taking any action whatsoever, and the
Rents and Profits shall thereupon be deemed to be cash collateral for all purposes, including
without limitation for purposes of Section 363 of Title 11 of the United States Code, as the same
may be amended from time to time. Beneficiary shall be liable to account only for the Rents and
Deed of Trust and Security Agreement
Page 11 of 27
Profits actually received by Beneficiary pursuant to any provision of any Loan Document.
(b)
Grantor shall duly and punctually perform all terms, covenants, conditions
and agreements binding upon it or the Property under any lease or any other agreement or
instrument of any nature whatsoever which involves or affects the Property or any part thereof.
Grantor represents that it has heretofore furnished Beneficiary true and complete copies of all
executed leases existing on the date of this Deed of Trust. Upon request of Beneficiary, Grantor
agrees to furnish Beneficiary with executed copies of all leases hereafter entered into with
respect to all or any part of the Property. Grantor shall not, without the express written consent of
Beneficiary, enter into any new lease or modify, extend or renew, either orally or in writing, any
lease now existing or hereafter created upon the Property, or any part thereof. Grantor shall not,
without the express written consent of Beneficiary, terminate or surrender any lease now existing
or hereafter created upon the Property, or any part thereof, unless Grantor has entered into a new
lease covering all of the leased premises to be terminated or surrendered, which new lease shall
either have been approved by Beneficiary as provided herein. Grantor shall not permit an
assignment or sublease of any lease now existing or hereafter created upon the Property, or any
part thereof, without the express written consent of Beneficiary.
(c)
Each lease of any portion of the Property shall be absolutely subordinate
to the lien of this Deed of Trust, but shall also contain a provision, satisfactory to Beneficiary,
that in the event of the exercise of the power of sale hereunder or a sale pursuant to a judgment
of foreclosure, such lease, at the sole and exclusive option of the purchaser at such sale, shall not
be terminated and the tenant thereunder shall attorn to such purchaser and, if requested to do so,
shall enter into a new lease for the balance of the term of such lease then remaining, upon the
same terms and conditions. If Beneficiary so requests, Grantor shall cause the tenant under each
or any of such leases to enter into subordination and attornment agreements with Beneficiary
which are satisfactory in form, scope and substance to Beneficiary.
(d)
Grantor shall not accept payment of advance rents or security deposits
equal, in the aggregate, to more than six months' rent. (e)
Grantor covenants and agrees that all
contracts and agreements relating to the Property to pay leasing commissions, management fees
or other compensation shall
(1) provide that the obligation to pay such commissions, fees and
other compensation will not be enforceable against any party other than the party who entered into
such agreement;
(2) be subordinate and inferior to the lien of this Deed of Trust; and (3) not be
enforceable against Beneficiary.
Grantor shall promptly furnish Beneficiary with evidence of
Grantor's compliance with this paragraph upon the execution of each such contract or agreement.
1.11
BOOKS, RECORDS AND ACCOUNTS. Grantor shall keep and maintain or
shall cause to be kept and maintained on a fiscal year basis, in accordance with generally
accepted accounting principles, consistently applied, proper and accurate books, records and
accounts reflecting all of the financial affairs of Grantor with respect to all items of income and
expense in connection with the operation of the Property, whether such income or expense be
realized by Grantor or by any other person whatsoever (excepting lessees unrelated to and
unaffiliated with Grantor who have leased from Grantor portions of the Property for the purpose
of occupying same). Beneficiary or its representatives or designees shall have the right from time
to time at all times during normal business hours to examine, with respect to the Property, such
Deed of Trust and Security Agreement
Page 12 of 27
books, records and accounts at the office of Grantor or other person maintaining such books,
records and accounts and to make copies or extracts thereof as Beneficiary shall desire.
Beneficiary shall also have the right to discuss Grantor's affairs, finances and accounts with
representatives of Grantor, at such reasonable times as may be requested by Beneficiary.
1.12 SUBROGATION .
As additional security hereunder, Beneficiary shall be
subrogated to the lien, although released record, of any and all encumbrances paid out of the
proceeds of the loan evidenced by the Note and secured by this Deed of Trust and Beneficiary,
upon making such payment, shall be subrogated to all of the rights of the person, corporation or
body politic receiving such payment.
1.13
COLLATERAL SECURITY INSTRUMENTS . Grantor covenants and agrees
that if Beneficiary at any time holds additional security for any obligations secured hereby, it
may enforce the terms thereof or otherwise realize upon the same, at its option, either before or
concurrently herewith or after a sale is made hereunder, and may apply the proceeds to the
Secured Indebtedness in such order as Beneficiary may determine, without affecting the status of
or waiving any right to exhaust all or any other security, including the security hereunder, and
without waiving any breach or default or any right or power whether exercised hereunder or
under any of the other Loan Documents, or contained herein or therein, or in any such other
security.
1.14
SUITS AND OTHER ACTS TO PROTECT THE PROPERTY.
(a)
Grantor covenants and agrees to appear in and defend any action or
proceeding purporting to affect the Property, any other security afforded by any of the Loan
Documents and/or the interest of Beneficiary thereunder. Grantor shall immediately notify
Beneficiary of the commencement, or receipt of notice, of any such action or proceeding or other
matter or claim purporting to, or which could, affect the Property, any other security afforded by
any of the Loan Documents and/or the interest of Beneficiary thereunder.
(b)
Beneficiary shall have the right, at the cost and expense of Grantor, to
institute and maintain such suits and proceedings and take such other action, as it may deem
expedient to preserve or protect the Property, any other security afforded by any of the Loan
Documents and/or Beneficiary's interest therein. Any money paid by Beneficiary under this
Section 1.14(b) shall be reimbursed to Beneficiary in accordance with Section 3.10 hereof.
1.15
BENEFICIARY'S RIGHT TO PERFORM GRANTOR'S OBLIGATIONS.
Grantor agrees that, if Grantor fails to perform any act or to pay any money which Grantor is
required to perform or pay under the Loan Documents, Beneficiary, at the cost and expense of
Grantor and in Grantor's name or in its own name, may
(but shall not be obligated to) perform or
cause to be performed such act or take such action or pay any money. Any money paid by
Beneficiary under this Section 1.15 shall be reimbursed to Beneficiary in accordance with
Section 3.10 hereof.
Deed of Trust and Security Agreement
Page 13 of 27
1.16
LIENS AND ENCUMBRANCES . Grantor shall not, without the prior written
consent of Beneficiary, create, place or suffer to be created or placed, or through any act or
failure to act, allow to remain, any deed of trust, mortgage, security interest, or other lien,
encumbrance or charge, or conditional sale or other title retention document, against or covering
the Property, or any part thereof, other than the Permitted Exceptions and the lien for ad valorem
taxes on the Property not yet delinquent, regardless of whether the same are expressly or
otherwise subordinate to the lien or security interest created in this Deed of Trust, and should any
of the foregoing become attached hereafter in any manner to any part of the Property, Grantor
shall cause the same to be promptly discharged and released.
Grantor shall own all parts of the
Property and, except as expressly approved in writing by Beneficiary, shall not acquire any
fixtures, equipment or other property forming a part of the Property pursuant to a lease, license,
title retention document or similar agreement.
ARTICLE II
DEFAULTS AND REMEDIES
2.01
EVENTS OF DEFAULT . Any of the following shall be deemed to be a material
breach of Grantor's covenants herein and shall constitute a default hereunder ("Event of
Default"):
(a)
The failure of Grantor to pay any installment of principal, interest or
principal and interest, any required escrow deposit or any other sum required to be paid under
any Loan Document, whether to Beneficiary or otherwise, when the same shall become due and
payable;
(b)
The failure of Grantor to perform or observe any
other term, provision, covenant, condition or agreement under any Loan Document;
(c)
The filing by Grantor of a voluntary petition or application for relief in
bankruptcy or Grantor's adjudication as a bankrupt or insolvent, or the filing by Grantor of any petition,
application for relief or answer seeking or acquiescing in any reorganization,
arrangement,
composition,
readjustment, liquidation, dissolution or similar relief for itself under any present or future
federal, state or other statute, law, code or regulation relating to bankruptcy, insolvency or other relief
for debtors, or Grantor's seeking or consenting to or acquiescing in the appointment of any trustee,
custodian, conservator, receiver or liquidator of Grantor or of all or any substantial part of the Property
or of any or all of the Rents and Profits thereof, or the making of any general assignment for the benefit
of creditors, or the admission in writing of its inability to pay its debts generally as they become due;
(d)
If any warranty, representation, certification,
financial statement or other information made or furnished at any
time pursuant to the terms of the Loan Documents or otherwise, by Grantor, or by any person or
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Page 14 of 27
entity otherwise liable under any Loan Document shall be materially false or misleading or
furnished with knowledge of the false nature thereof; or
(e)
If Grantor shall suffer or permit the Property, or any part thereof, to be
used in such manner as might tend to
(1) impair Grantor's title to the Property, or any part
thereof; or (2) create rights of adverse use or possession; or
(3) constitute an implied dedication
of the Property, or any part thereof.
2.02
REMEDIES UPON DEFAULT . Upon (1) ten (10) days after the happening of an
Event of Default described in Section 2.01(a) or (2) thirty
(30) days after the date Mortgagee
sends notice of an Event of Default described in Section 2.01(b) or
(3) the happening of any
other Event of Default, the Secured Indebtedness shall, at the option of Beneficiary, become
immediately due and payable, without further notice or demand, and Beneficiary may forthwith
undertake any one or more of the following:
(a)
Foreclosure . Institute an action of foreclosure in accordance with the law
of the State, or take such other action as the law may allow, at law or in equity, for the
enforcement of the Loan Documents and realization on the Property or any other security
afforded by the Loan Documents and, in the case of a judicial proceeding, proceed to final
judgment and execution thereon for the amount of the Secured Indebtedness
(as of the date of
such judgment) together with all costs of suit, attorneys' fees and interest on such judgment at the
maximum rate permitted by law from and after the date of such judgment until actual payment is
made to Beneficiary in the full amount due Beneficiary; provided, however, if Beneficiary is the
purchaser at the foreclosure sale of the Property, the foreclosure sale price
(Beneficiary's final
bid) shall be applied against the total amount due Beneficiary; and/or
(b) Power of Sale .
Subject to compliance with all applicable laws of the State
then in effect, authorize and empower Trustee to fix the day, time, and place of sale, to sell the
Property and all estate, right, title and interest, claim and demand therein, and right of
redemption thereof, at one or more sales as an entity or in parcels; said sale to be by public
outcry to the highest bidder for cash, said sale to be advertised for three (3) consecutive weeks
immediately preceding the sale in a newspaper published in the county where the Property is
situated, or if none is so published, then in some newspaper having general circulation therein,
and by posting a notice for the same time at the courthouse of the same county, such notice to
disclose the names of the original. debtors in this Deed of Trust. Beneficiary may bid at said sale
and purchase said Property, or any part thereof, as the highest bidder therefor. At the foreclosure
sale the Property may be offered for sale and sold as a whole without first offering it in any other
manner or may be offered for sale and sold in any other manner Trustee may elect. Trustee may
postpone from time to time any sale by it to be made under or by virtue of this Deed of Trust by
announcement at the time and place appointed for such sale or for such postponed sale or sales;
and, except as otherwise further notice or publication, may make such sale at the place and time
to which the same shall be so postponed; and/or
(c) Entry. Enter into possession of the Property, lease the same, collect all
Rents and Profits therefrom, and Beneficiary is constituted and appointed as attorney-in-fact of
Grantor to manage and operate the Property and to collect such sums, and, after deducting all
Deed of Trust and Security Agreement
Page 15 of 27
costs of collection and administration expenses, apply the remaining Rents and Profits in such
order and amounts as Beneficiary, in Beneficiary's sole discretion, may elect to the payment of
Impositions, operating costs, Premiums and other charges (including, but not limited to, costs of
leasing the Property and fees and costs of counsel and receivers) and to the maintenance, repair,
and restoration of the Property, or on account and in reduction of the Secured Indebtedness;
and/or
(d) Receivership . Have a receiver appointed to enter into possession of the
Property, collect the Rents and Profits therefrom and apply the same as the appropriate court
may direct. Beneficiary shall be entitled to the appointment of a receiver without the necessity of
proving either the inadequacy of the security or the insolvency of Grantor or any other person
who may be legally or equitably liable to pay any portion of the Secured Indebtedness and
Grantor and each such person shall be deemed to have waived such proof and to have consented
to the appointment of such receiver. Should Beneficiary or any receiver collect the Rents and
Profits, the moneys so collected shall not be substituted for payment of the Secured Indebtedness
nor used to cure the Event of Default; and/or
(e) Authority- to Convey . At any such public sale as described in Section
2.02(b), Trustee may execute and deliver to the Purchaser a conveyance of the Property or any
part of the Property which conveyance will transfer all right, title and interest owned by Grantor
and, to this end Grantor hereby constitutes and appoints Trustee the agent and attorney-in-fact of
Grantor to make such sale and conveyance, and thereby to divest Grantor of all right, title or
equity that Grantor may have in and to the Property and to vest the same in the Purchaser or
Purchasers at such sale or sales, and all the acts and doings of said agent and attorney-in-fact are
hereby ratified and confirmed and any recitals in said conveyance or conveyances as to facts
essential to a valid sale shall be binding upon Grantor. The aforesaid power of sale and agency
hereby granted are coupled with an interest and are irrevocable by death or otherwise, are granted
as cumulative of the other remedies provided by law or collection of the Secured Indebtedness
and shall not be exhausted by one exercise thereof but may be exercised until Beneficiary has
received full payment of the Secured Indebtedness and all the sums herein covenanted to be paid;
and/or
(f) Suit on Note. Institute an action to enforce the Note, in whole or in part,
with or without accelerating the Maturity Date.
2.03 APPLICATION OF PROCEEDS OF SALE . In the event of a sale of the Property
pursuant to Section 2.02 (a) or Section 2.02(b)hereof, the proceeds of said sale, to the extent
permitted by law, shall be applied to the following, in such order as Beneficiary shall., in its sole
discretion, determine: the expenses of such sale and of all proceedings in connection therewith,
including attorneys' fees and expenses; Impositions, Premiums, liens, and other charges and
expenses; the outstanding principal balance of the Secured Indebtedness; any accrued interest;
and any other unpaid portion of the Secured Indebtedness.
2.04 WAIVER. Should the Property be sold under the provisions of Sections 2.02 (a)
or 2.02 (b) hereof, Grantor hereby waives the provisions of Section 89-1-55 of the Mississippi
Code of 1972, as amended, if any, as far as such section restricts the right of Trustee or
Deed of Trust and Security Agreement
Page 16 of 27
Beneficiary to offer at sale more than 160 acres at a time, and Trustee or Beneficiary may offer
the property herein conveyed as a whole, regardless of how it is described.
ARTICLE III
GENERAL COVENANTS
3.01.
SECURITY AGREEMENT .
(a)
THIS DEED OF TRUST CREATES A LIEN ON THE PROPERTY, AND
TO THE EXTENT THE PROPERTY IS PERSONAL PROPERTY UNDER APPLICABLE
LAW, THIS DEED OF TRUST CONSTITUTES A SECURITY AGREEMENT UNDER THE
UNIFORM COMMERCIAL CODE OF THE STATE WHERE THE PERSONAL PROPERTY
IS SITUATED
(THE "U.C.C.") AND ANY OTHER APPLICABLE LAW AND IS FILED AS
A FIXTURE FILING. UPON THE OCCURRENCE OF AN EVENT OF DEFAULT,
BENEFICIARY MAY, AT ITS OPTION, PURSUE ANY AND ALL RIGHTS AND
REMEDIES AVAILABLE TO A SECURED PARTY WITH RESPECT TO ANY.PORTION
OF THE PROPERTY, AND/OR BENEFICIARY MAY, AT ITS OPTION, PROCEED AS TO
ALL OR ANY PART OF THE PROPERTY IN ACCORDANCE WITH BENEFICIARY'S
RIGHTS AND REMEDIES WITH RESPECT TO THE LIEN CREATED BY THIS DEED OF
TRUST.
(b) The grant of a security interest to Beneficiary in the granting clause of this Deed
of Trust shall not be construed to derogate from or impair the lien or provisions of or the rights
of Beneficiary under this Deed of Trust with respect to any property described therein which is
real property or which the parties have agreed to treat as real property. The hereby stated
intention of Grantor and Beneficiary is that the Property is, and at all times and for all purposes
and in all proceedings, both legal and equitable, shall be regarded as real property, irrespective of
whether or not the same is physically attached to the Land and/or Improvements.
(c) If required by Beneficiary, at any time during the term of this Deed of Trust,
Grantor will execute and deliver to Beneficiary, in form satisfactory to Beneficiary, additional
security agreements, financing statements and/or other instruments covering all Personal
Property or fixtures of Grantor which may at any time be furnished, placed on, or annexed or
made appurtenant to the Real Property or used, useful or held for use, in the operation of the
Improvements.
(d) Grantor hereby irrevocably constitutes and appoints Beneficiary as its attorney-in-
fact and such appointment is coupled with an interest, to execute, deliver and file with the
appropriate filing officer or office such security agreements, financing statements and/or other
instruments as Beneficiary may request or require in order to impose and perfect the lien and
security interest created hereby more specifically on the Personal Property or any fixtures.
(e) If Grantor enters into a separate security agreement with Beneficiary relating to
any of the Personal Property or fixtures, in the event of any conflict between this Section 3.01
and such security agreement, the terms of such security agreement shall govern the rights and
remedies of Beneficiary after an Event of Default thereunder.
Deed of Trust and Security Agreement
Page 17 of 27
(f)
It is understood and agreed that, in order to protect Beneficiary from the effect of
U.C.C. Section 9-313, as amended from time to time, in the event that Grantor intends to
purchase any goods which may become fixtures attached to the Property, or any part thereof, and
such goods will be subject to a purchase money security interest held by a seller or any other
party:
(g) Grantor shall, before executing any security agreement or other document
evidencing or perfecting such security interest, obtain the prior written approval of Beneficiary,
and all requests for such written approval shall be in writing and contain the following
information:
(i)
a description of the replaced,
added to, substituted; fixtures
to be installed or
(ii) the address at which the replaced,
added to, substituted; and
(iii) the name and address of the proposed holder and proposed
amount of the security interest.
Grantor's execution of any such security agreement or other document evidencing or
perfecting such security interest without Beneficiary's prior written approval shall constitute an
Event of Default. No consent by Beneficiary pursuant to this subparagraph shall be deemed to
constitute an agreement to subordinate any right of Beneficiary in fixtures or other property
covered by this Deed of Trust.
(2)
If at any time Grantor fails to make any payment on an obligation
secured by a purchase money security interest in the Personal Property or any fixtures,
Beneficiary, at its option, may at any time pay the amount secured by such security interest. Any
money paid by Beneficiary under this Subparagraph, including any expenses, costs, charges and
attorney's fees incurred by Beneficiary shall be reimbursed to Beneficiary in accordance with
Section 3.10 hereof. Beneficiary shall be subrogated to the rights of the holder of any such
purchase money security interest in the Personal Property.
(3)
Beneficiary shall have the right to acquire by assignment from the
holder of such security interest any and all contract rights, accounts receivable, negotiable or
non-negotiable instruments, or other evidence of Grantor's indebtedness for such Personal
Property or fixtures, and, upon acquiring such interest by assignment, shall have the right to
enforce the security interest as assignee thereof, in accordance with the terms and provisions of
the U.C.C. and in accordance with any other provisions of law.
(4)
Whether or not Beneficiary has p
