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Exhibit
10.3
Drawn By and Mail To:
Chadbourne & Parke
LLP,
30 Rockefeller Plaza,
New York, New York 10112
Attention : Vincent Dunn,
Esq.
DEED OF TRUST, ASSIGNMENT OF
LEASES
AND SECURITY
AGREEMENT
by and among
THE SMITHFIELD PACKING
COMPANY, INCORPORATED
having a mailing address
of
c/o Smithfield Foods, Inc.,
111 Commerce Street, Smithfield, Virginia 23430,
Attn: Carey Dubois, Chief
Financial Officer,
as Grantor,
to
FIRST AMERICAN TITLE
INSURANCE COMPANY],
having a mailing address
of
1932 Fleming Road,
Greensboro, North Carolina 27410,
as Trustee
for the benefit of
CITIBANK, N.A.,
having a mailing address
of
388 Greenwich Street, 23rd
Floor, New York, New York 10013,
Attn: Robert Kane, Global
Consumer and Healthcare Department,
as Beneficiary
THIS INSTRUMENT IS A FIXTURE FILING. THE
COLLATERAL IS OR INCLUDES FIXTURES. THIS INSTRUMENT IS TO BE FILED
AND INDEXED IN THE REAL ESTATE RECORDS. THIS INSTRUMENT IS ALSO TO
BE INDEXED IN THE INDEX OF FINANCING STATEMENTS AS A FIXTURE FILING
IN ACCORDANCE WITH THE UNIFORM COMMERCIAL
CODE, INCLUDING SECTION 9-502, AS
ADOPTED IN NORTH CAROLINA. THE NAMES OF THE DEBTOR AND THE SECURED
PARTY, THE MAILING ADDRESS OF THE SECURED PARTY FROM WHICH
INFORMATION CONCERNING THE SECURITY INTEREST MAY BE OBTAINED, THE
MAILING ADDRESS OF THE DEBTOR AND A STATEMENT INDICATING THE TYPES,
OR DESCRIBING THE ITEMS OF COLLATERAL, ARE AS DESCRIBED IN SECTION
5.03 HEREOF IN COMPLIANCE WITH THE REQUIREMENTS OF SECTION 9-502 OF
THE UNIFORM COMMERCIAL CODE AS ADOPTED IN NORTH
CAROLINA.
THIS INSTRUMENT SECURES FUTURE ADVANCES
FOR COMMERCIAL PURPOSES.
NOTE: INTEREST OR DISCOUNT MAY BE
DEFERRED, ACCRUED OR CAPITALIZED BUT ONLY AT THE OPTION OF
PARTICIPANTS.
DEED OF TRUST, ASSIGNMENT
OF LEASES
AND SECURITY
AGREEMENT
THIS DEED OF TRUST,
ASSIGNMENT OF LEASES AND SECURITY AGREEMENT (hereinafter referred
to as this “ Instrument ”) is made and entered
into as of the 16th day of May, 2008 by and between THE SMITHFIELD
PACKING COMPANY, INCORPORATED, whose address is c/o Smithfield
Foods, Inc., 111 Commerce Street, Smithfield, Virginia 23430, Attn:
Carey Dubois, Chief Financial Officer, party of the first part, as
grantor (hereinafter referred to as “ Grantor
”), to FIRST AMERICAN TITLE INSURANCE COMPANY whose address
is 1932 Fleming Road, Greensboro, North Carolina 27410 as trustee
(hereinafter referred to as ‘‘ Trustee ”),
party of the second part, for the benefit of CITIBANK, N.A., whose
address is 388 Greenwich Street, 23rd Floor, New York, New York
10013, Attn: Robert Kane, Global Consumer and Healthcare, party of
the third part, as beneficiary (hereafter referred to as “
Beneficiary ”);
RECITALS
A. On even date herewith
Grantor, Smithfield Foods, Inc. (“ Smithfield ”)
and Beneficiary are executing an Uncommitted Line of Credit
Agreement dated as of the date hereof (such agreement, as may from
time to time be amended or supplemented, hereinafter referred to as
the “ Credit Agreement ”), pursuant to which,
upon the terms and conditions stated therein, Beneficiary agreed to
make advances to Grantor and Smithfield.
B. Grantor, Smithfield and
Beneficiary have conditioned their respective obligations under the
Credit Agreement upon the execution and delivery by Grantor of this
Instrument and Grantor has agreed to enter into this
Instrument.
C. Therefore, in order to
comply with the terms and conditions of the Credit Agreement, to
induce Beneficiary to make advances to Grantor and Smithfield under
the Credit Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor hereby agrees as follows:
ARTICLE I
Definitions
Section 1.01 Terms
Defined Above or in the Credit Agreement . All capitalized
terms used in this Agreement and not otherwise defined herein shall
have the meanings assigned to them in the Credit
Agreement.
Section 1.02 Certain
Definitions . As used in this Instrument, the following terms
shall have the following meanings, unless the context otherwise
requires:
“ Contracts
” shall have the meaning assigned such term in Article
II.
“ Default Rate
” shall mean a rate per annum equal to the Base Rate plus
2%.
“ Facility
” shall have the meaning assigned such term in Article
II.
“ Lease ”
shall mean all of Grantor's interest in and to, any lease agreement
or similar agreement providing a right to any other Person to use,
lease, license, possess, operate from, reside in or otherwise enjoy
the Mortgaged Property, now in effect or hereafter entered into,
any and all Rents arising therefrom, and all amendments and
renewals thereof now or hereafter entered into.
“ Mortgaged
Property ” shall have the meaning assigned such term in
Article II.
“ Obligations
” shall mean: (i) all of the outstanding aggregate
amount of the Advances made to Grantor under the Credit Agreement,
including without limitation, and any and all renewals, extensions
for any period, rearrangements or enlargements thereof;
(ii) the performance of all obligations and agreements of
Grantor to Beneficiary and Trustee under the Operative Documents;
and (iii) all interest (pre-petition or post-petition), taxes,
indemnities, losses, compensation, reimbursement, charges,
expenses, attorneys' or other fees and any other sums payable to or
incurred by either Trustee or Beneficiary in connection with the
execution, administration or enforcement of their rights and
remedies hereunder or any other Operative Documents.
“ Operative
Documents ” shall mean the Credit Agreement, the Security
Agreement, this Instrument and each other document or instrument
used to pledge or grant, or purport to pledge or grant a security
interest or lien on any property of Grantor or any other Person to
secure the Obligations, and each other certificate, agreement or
document executed by Grantor and delivered to Beneficiary or
Trustee in connection with or pursuant to any of the
foregoing.
“ Permitted
Liens ” shall have the meaning assigned to such term in
Section 3.01(a).
“ Person ”
shall mean an individual, partnership, limited liability company,
corporation (including a business trust), a joint stock company,
estate, trust, unincorporated association, joint venture or other
entity, or any governmental authority.
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“ Rents ”
shall mean all of the rents, revenues, income, proceeds, profits,
security and other types of deposits, and other benefits paid or
payable by parties to any Lease (other than Grantor) for using,
leasing, licensing, possessing, operating from, residing in or
otherwise enjoying the Mortgaged Property.
“ Security
Agreement ” shall mean the Security Agreement dated as of
the date hereof between Grantor and Beneficiary.
“ Site ”
shall mean the real property located in Bladen County, North
Carolina together with all rights appurtenant to such real
property, all as described in greater detail in Exhibit
“A” attached hereto and by this reference
incorporated herein.
ARTICLE II
Granting Clauses
In order to secure the
payment and performance of the Obligations and any other
obligations of Grantor hereinafter set forth, Grantor does hereby
irrevocably bargain, sell, give, grant and convey unto Trustee and
Trustee’s successors and assigns in trust, with power of
sale, under and subject to the terms hereof, for the benefit of
Beneficiary, all of Grantor's interest and estate, whether now
owned or hereafter acquired (whether fee, leasehold, legal or
equitable) and whether the same now exist or hereafter come into
existence (hereinafter collectively referred to as the “
Mortgaged Property ”):
(a) Grantor’s undivided
fee simple estate and all the tracts or parcels of real property
lying and being in the County of Bladen, State of North Carolina as
more particularly described in Exhibit “A”
attached hereto and by this reference incorporated herein;
and
(b) All buildings, structures
and improvements of every nature whatsoever now or hereafter
situated on the Site, and all gas and electric fixtures, radiators,
heaters, engines and machinery, boilers, ranges, elevators and
motors, plumbing and heating fixtures, carpeting and other floor
coverings, washers, dryers, water heaters, mirrors, mantels, air
conditioning apparatus, refrigerating plants, refrigerators,
cooking apparatus and appurtenances, window screens, awnings and
storm sashes, which are or shall be attached to said buildings,
structures or improvements and all other furnishings, furniture,
fixtures, machinery, equipment, appliances, vehicles and personal
property of every kind and nature whatsoever now or hereafter owned
by Grantor and located in, on or about, or used or intended to be
used with or in connection with the use, operation or enjoyment of
the Mortgaged Property, including all extensions, additions,
improvements, betterments, renewals and replacements of any of the
foregoing and all the right, title and interest of Grantor in any
such furnishings, furniture, fixtures, machinery, equipment,
appliances, vehicles and personal property subject to or covered
by
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any prior security agreement,
conditional sales contract, chattel mortgage or similar lien or
claim, together with the benefit of any deposits or payments now or
hereafter made by Grantor or on behalf of Grantor, all trade-names,
trademarks, servicemarks, logos and goodwill related thereto which
in any way now or hereafter belong, relate or appertain to the
Mortgaged Property or any part thereof or are now or hereafter
acquired by Grantor (excluding trademarks or tradenames which
appertain to the operation of Grantor's business rather than the
operation of the Facility); and all insurance and other proceeds of
any of the property described hereinabove, all of which are hereby
declared and shall be deemed to be fixtures and accessions to the
freehold and a part of the Mortgaged Property as between the
parties hereto and all persons claiming by, through or under them,
and which shall be deemed to be a portion of the security for the
Obligations and to be secured by this Instrument. The location of
the above described collateral is also the location of the Site.
The property described in this subsection (b) is herein
referred to collectively as the “ Improvements
”; the Improvements and the Grantor’s estate in the
Site are herein collectively referred to as the “
Facility ”;
(c) All of Grantor’s
right, title and interest, under, in and to the Leases and all
contracts, franchises, licenses, agreements, permits and other
documents, together with any additions or changes to and any
extensions, revisions or modifications of all such contracts,
franchises, licenses, agreements, permits and other documents
(collectively, the “ Contracts ”), whether now
existing or hereafter entered into in relating to the development,
ownership, maintenance and operation of the Facility and all
proceeds of any of the property described hereinabove, including,
without limitation, all insurance proceeds; and
(d) All easements,
rights-of-way, strips and gores of land, vaults, streets, ways,
alleys, passages, sewer rights, waters, water courses, water rights
and powers, and all estates, rights, titles, interests, privileges,
liberties, tenements, hereditaments and appurtenances whatsoever,
in any way belonging, relating or appertaining to the Mortgaged
Property or any part thereof, or which hereafter shall in any way
belong, relate or be appurtenant thereto, whether now owned or
hereafter acquired by Grantor and the reversion and reversions,
remainder and remainders, of the Mortgaged Property from time to
time accruing.
TO HAVE AND TO HOLD FOREVER
the Mortgaged Property and all parts, rights, members and
appurtenances thereof, to Trustee and the heirs, successors and
assigns of Trustee, upon the trusts, terms and conditions and for
the uses hereinafter set forth, and Grantor covenants that Grantor
is lawfully seized and possessed of the Mortgaged Property as
aforesaid, and has good right to convey the same, that the same is
unencumbered except for Permitted Liens, and that Grantor does
warrant and will forever defend the title thereto against the
claims of all persons whomsoever, except as to Permitted
Liens.
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This conveyance is intended
to operate and is to be construed as a deed of trust under the laws
of the State of North Carolina relating to deeds of trust, and not
as a mortgage, and is given to secure the payment and performance
by Grantor and Smithfield of their respective Obligations under the
Operative Documents, including without limitation the
following:
(i) The debt evidenced by the
Credit Agreement, as the same may be amended, modified or assigned
from time to time executed by Grantor and Smithfield, payable to
Beneficiary, with final payment being due as provided in the Credit
Agreement, unless extended in accordance with the Credit Agreement,
including, without limitation, principal, interest, late charges,
fees and other amounts due with respect to the Obligations or this
Instrument. This Deed of Trust secures all present and future loan
disbursements made by the Beneficiary pursuant to the Credit
Agreement, and all other sums from time to time owing to the
Beneficiary pursuant to the Credit Agreement. The amount of the
present disbursement secured hereby is One Hundred Million and
NO/100 Dollars $100,000,000, and the maximum principal amount which
may be secured hereby at any one time is One Hundred Fifty Million
and NO/100 Dollars ($150,000,000.00). The time period within which
such future disbursements are to be made is the period between the
date hereof and the date fifteen (15) years from the date
hereof. Disbursements secured hereby shall not be required to be
evidenced by a “written instrument or notation” as
described in Section 45-68(2) of the North Carolina General
Statutes, it being the intent of the parties that the requirements
of Section 45-68(2) for a “written instrument or
notation” for each advance shall not be applicable to
disbursements made under the Credit Agreement;
(ii) Any and all additional
advances made by Beneficiary or the Trustee (a) to protect or
preserve the Mortgaged Property or the lien hereof on the Mortgaged
Property; (b) to pay costs of erection, construction,
alteration, repair, restoration, maintenance and completion of any
improvements on the Mortgaged Property; (c) for the payment of
real estate taxes, assessments or other governmental charges,
maintenance charges, insurance premiums, appraisal charges,
environmental inspection, audit, testing or compliance costs, and
costs incurred by Beneficiary for the enforcement and protection of
the Mortgaged Property or the lien of this Instrument; (d) for
all legal fees, costs and other expenses incurred by Beneficiary by
reason of any default or otherwise in connection with the
Obligations; and (e) as otherwise permitted pursuant to
Article 7 of Chapter 45 of the North Carolina General Statutes
(whether or not the original Grantor remains the owner of the
Mortgaged Property at the time of such advances).
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Should the Obligations
secured by this Instrument be paid and performed according to the
tenor and effect thereof when the same shall become due and
payable, and should Grantor perform all covenants herein contained
in a timely manner, then this Instrument shall be cancelled and
surrendered upon the request and at the expense of
Grantor.
ARTICLE III
Representations, Warranties
and Covenants
Section 3.01
Representations, Warranties . Grantor hereby represents and
warrants as follows:
(a) First Priority
Lien . Grantor will not create or suffer to be created or
permit to exist any lien, security interest or charge created by
Grantor prior or junior to or on parity with the lien and security
interest of this Instrument upon the Mortgaged Property or any part
thereof or upon the rents, issues, revenues, profits or other
income therefrom except the following (collectively, “
Permitted Liens ”):
(i) liens for taxes,
assessments and governmental charges or levies not yet delinquent
or which are being contested in good faith by appropriate
proceedings; provided that adequate reserves with respect
thereto are maintained on the books of the Grantor in conformity
with generally acceptable accounting principles;
(ii) liens imposed by law,
such as material men’s, mechanics’, carriers’,
workmen’s and repairmen’s liens and other similar liens
arising in the ordinary course of business securing obligations
(other than indebtedness for borrowed money) that are not yet due
and payable; and
(iii) easements,
restrictions, rights of way, encumbrances and other exceptions to
title (other than encumbrances securing indebtedness not
constituting Obligations) that would not reasonably be expected to
impair the value of the Facility or otherwise materially adversely
affect the use of the Facility for its present purpose.
(b) Leases . Grantor
will observe and perform all the obligations imposed upon Grantor
under any Lease and not do or permit to be done anything to impair
the security thereof.
(c) Further Assurances
. Grantor will execute and deliver all such further instruments and
do such further acts as may be necessary or desirable or as may be
reasonably requested by Beneficiary or Trustee to carry out more
effectively the purposes of this Instrument and to subject to the
lien created hereby any properties, rights and interests covered or
intended to be covered hereby.
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(d) Rights of Beneficiary
and Trustee . Grantor agrees that if Grantor fails to perform
any act or to take any action which Grantor is required to perform
or take hereunder or under the Credit Agreement or any other
Operative Document or to pay any money which Grantor is required to
pay hereunder or thereunder, either Beneficiary or Trustee in
Grantor's name or its own name may, but shall not be obligated to,
perform or cause to be performed such act or take such action or
pay such money, and any expenses so incurred by Beneficiary or
Trustee and any money so paid by Beneficiary or Trustee shall be a
demand obligation owing by Grantor to Beneficiary or Trustee, as
applicable and, upon making such payment, shall be subrogated to
all of the rights of the Person receiving such payment. Each amount
due and owing by Grantor under this Section 3.01(d) shall bear
interest from the date of such expenditure or payment or other
occurrence which gives rise to such amount being owed to
Beneficiary until paid at the Default Rate, and all such amounts
together with such interest thereon shall be a part of the
Obligations and shall be secured by this Instrument.
(e) Real Property
Description . Set forth on Exhibit “A”
hereto is a true, complete and accurate legal description of the
real property known as the Grantor's Tar Heel facility located in
Bladen County, North Carolina.
(f) Flood Zone .
Grantor agrees that if any portion of the Mortgaged Property is
located in an area identified by the Federal Emergency Management
Agency as an area having special flood hazards and in which flood
insurance has been made available under the National Flood
Insurance Act of 1968 (or any amendment or successor act thereto),
then Grantor shall maintain, or cause to be maintained, with a
financially sound and reputable insurer, flood insurance in an
amount sufficient to comply with all applicable rules and
regulations promulgated pursuant to such Act.
ARTICLE IV
Assignment of Assigned
Leases
Section 4.01
Assignment of Leases and Rents . As additional collateral
and further security for the Obligations, Grantor does hereby
assign to Beneficiary (i) all of the rents, issues and
profits, and all revenue, income and proceeds, derived or to be
derived from the Mortgaged Property or arising from the use or
enjoyment of any portion thereof or from any Assigned Lease (as
hereinafter defined) (hereinafter collectively referred to as the
“ Rents ”) and (ii) Grantor's interest in
any and all leases, subleases, tenant contracts, rental agreements,
occupancy agreement or agreements of a similar nature, now or
hereafter affecting the Mortgaged
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Property, or any part thereof, including
without limitation the Leases (hereinafter collectively, referred
to as the “ Assigned Leases ”). Grantor agrees
to execute and deliver to Beneficiary such additional instruments,
in form and substance satisfactory to Beneficiary or Trustee, as
may hereafter be requested by Beneficiary further to evidence and
confirm said assignment; provided, however, that acceptance of any
such assignment shall not be construed as a consent by Beneficiary
or Trustee to any Assigned Lease, or to impose upon Beneficiary or
Trustee any obligation with respect thereto.
Section 4.02 No
Assignment . Grantor shall not execute an assignment of the
Leases, Rents, or any part thereof, from the Mortgaged
Property.
Section 4.03 Future
Leases . Notwithstanding any other provisions of this
Instrument, Grantor shall not hereafter enter into any leases
without the prior written consent of Beneficiary and except upon
the following conditions: (a) each such instrument shall
contain a provision that the rights of the parties thereunder are
expressly subordinate to all of the rights and title of the Trustee
and Beneficiary under this Instrument; (b) any such instrument
shall contain a provision whereby the parties thereunder expressly
recognize and agree that, notwithstanding such subordination, the
Trustee may sell the Mortgaged Property in the manner provided in
herein, and thereby, at the option and direction of Beneficiary,
sell the same subject to such instrument; and (c) at or prior
to the time of execution of any such instrument, Grantor shall, as
a condition to such execution, procure from the other party or
parties thereto an agreement in favor of the Trustee, in form and
substance satisfactory to Beneficiary, under which such party or
parties agree to be bound by the provisions of this Instrument,
regarding the manner in which Trustee may foreclose or exercise the
power of sale under this Instrument.
Section 4.04
Beneficiary’s Authority . Beneficiary is fully
authorized to receive and receipt for said revenues and proceeds;
to endorse and cash any and all checks and drafts payable to the
order of Grantor or Trustee or Beneficiary for the account of
Grantor received from or in connection with said revenues or
proceeds and apply the proceeds thereof to the payment of the
Obligations, when received, regardless of the maturity of any of
the Obligations, or any installment thereof; and to execute
transfer and division orders in the name of Grantor, or otherwise,
with warranties binding Grantor. Beneficiary shall not be liable
for any delay, neglect, or failure to effect collection of any
proceeds or to take any other action in connection therewith or
hereunder; but shall have the right, at its election, in the name
of Grantor or otherwise, to prosecute and defend any and all
actions or legal proceedings deemed advisable by Beneficiary in
order to collect such funds and to protect the interests of the
Trustee, for the benefit of Beneficiary and/or Grantor, with all
costs, expenses and attorney’s fees incurred in connection
therewith being paid by Grantor.
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Section 4.05
Cumulative Rights . The rights provided in this Article IV
shall be cumulative of all other security of any and every
character now or hereafter existing to secure payment of the
Obligations.
ARTICLE V
Security Agreement
Section 5.01 Security
Interest . As additional collateral and further security for
the Obligations, Grantor hereby grants to Beneficiary a security
interest in the machinery, apparatus, equipment, fittings,
fixtures, building supplies and materials, general intangibles
(including without limitation, the Contracts) and articles of
personal property either referred to or described in this
Instrument, or in any way connected with the use and enjoyment of
the Mortgaged Property and this Instrument is hereby made and
declared to be a security agreement, encumbering each and every
item of personal property included herein, in compliance with the
provisions of the Uniform Commercial Code as enacted in the State
of North Carolina. A financing statement or statements reciting
this Instrument to be a security agreement, affecting all of said
personal property aforementioned, shall be executed by Grantor and
Beneficiary or Trustee, as applicable, and appropriately filed. The
remedies for any violation of the covenants, terms and conditions
of the security agreement herein contained shall be (i) as
prescribed herein, or (ii) as prescribed by general law, or
(iii) as prescribed by the specific statutory consequences now
or hereafter enacted and specified in said Uniform Commercial Code,
all at Beneficiary's sole election. Grantor and Beneficiary agree
that the filing of such financing statement(s) in the records
normally having to do with personal property shall never be
construed as in anywise derogating from or impairing this
declaration and hereby stated intention of Grantor and Beneficiary
that everything used in connection with the production of income
from the Mortgaged Property and/or adapted for use therein and/or
which is described or reflected in this Instrument, is, and at all
times and for all purposes and in all proceedings both legal or
equitable shall be, regarded as part of the real estate
irrespective of whether (i) any such item is physically
attached to the improvements, (ii) serial numbers are used for
the better identification of certain items capable of being thus
identified in a recital contained herein, or (iii) any such
item is referred to or reflected in any such financing statement(s)
so filed at any time. Similarly, the mention in any such financing
statement(s) of the rights in and to (aa) the proceeds of any fire
and/or hazard insurance policy, or (bb) any award in eminent domain
proceedings for a taking or for loss of value, or (cc) Grantor's
interest as lessor in any present or future lease or rights to
income growing out of the use and/or occupancy of the Mortgaged
Property, whether pursuant to lease or otherwise, shall never be
construed as in anywise altering any of the rights of Beneficiary
as determined by this instrument or impugning the priority of
Beneficiary's lien granted hereby or by any other recorded
document, but such mention in such financing
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statement(s) is declared to be for the
protection of Beneficiary in the event any court shall at any time
hold with respect to the foregoing (aa), (bb) or (cc), that notice
of Beneficiary's priority of interest to be effective against a
particular class of persons, must be filed in the Uniform
Commercial Code records.
Section 5.02
Debtor’s Warranties . Grantor warrants that
(i) Grantor’s (that is, “Debtor’s”)
name, identity or corporate structure and residence or principal
place of business are as set forth in Section 5.03 hereof;
(ii) Grantor (that is, “Debtor”) has been using or
operating under said name, identity or corporate structure without
change for the time period set forth in Section 5.03 hereof;
and (iii) the location of the collateral is upon the Site.
Grantor covenants and agrees that Grantor will furnish Beneficiary
with notice of any change in the matters addressed by clauses
(i) or (ii) of this Section 5.02 within thirty
(30) days of the effective date of any such change and Grantor
will promptly execute any financing statements or other instruments
deemed necessary by Beneficiary to prevent any filed financing
statement from becoming misleading or losing its perfected
status.
Section 5.03 Debtor
Information . The information contained in this
Section 5.03 is provided in order that this Instrument shall
comply with the requirements of the Uniform Commercial Code, as
enacted in the State of North Carolina, for instruments to be filed
as financing statements. The names of the “Debtor” and
the “Secured Party,” the identity or corporate
structure and residence or principal place of business of
“Debtor,” and the time period for which
“Debtor” has been using or operating under said name
and identity or corporate structure without change, are as set
forth in Schedule 1 of Exhibit “B” attached
hereto and by this reference made a part hereof, the mailing
address of the “Secured Party” from which information
concerning the security interest may be obtained, and the mailing
address of “Debtor”, are as set forth in Schedule 2 of
said Exhibit “B” attached hereto; and a
statement indicating the types, or describing the items, of
collateral is set forth hereinabove. This Instrument covers goods
that are or are to become fixtures on the Site described herein and
is to be filed for record in the real estate records. The
description of the real estate to which the collateral is attached
or upon which it is located is as set forth on Exhibit
“A” . Grantor’s organizational identification
number is 0922251.
ARTICLE VI
Default and
Remedies
Section 6.01 Event of
Default . A default by Grantor in the payment, performance or
observance of any term, covenant or condition of the Credit
Agreement or this Instrument or the occurrence of any “Event
of Default,” as defined in any other Operative Document,
shall constitute an “ Event of Default ”
hereunder.
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Section 6.02
Remedies .
(a) If an Event of Default
shall have occurred and be continuing, Beneficiary may at any time
and from time to time declare any or all of the Obligations
immediately due and payable. Notwithstanding the foregoing, under
the terms of the Credit Agreement the Beneficiary has the right at
any time to demand payment in full of all outstanding Advances even
if an Event of Default has not occurred.
(b) If an Event of Default
shall have occurred and be continuing, Grantor upon demand of
Beneficiary, shall forthwith surrender to Beneficiary the actual
possession of the Mortgaged Property and if, and to the extent,
permitted by law and the Operative Documents, Beneficiary itself,
or by such officers or agents as it may appoint, may enter and take
possession of all the Mortgaged Property without the appointment of
a receiver, or an application therefor, and may exclude Grantor and
its agents and employees wholly therefrom, and may have joint
access with Grantor to the books, papers and accounts of Grantor
pertaining to the Mortgaged Property. If Grantor shall for any
reason fail to surrender or deliver the Mortgaged Property or any
part thereof after such demand by Beneficiary, Beneficiary may
obtain a judgment or decree conferring upon Beneficiary the right
to immediate possession or requiring Grantor to deliver immediate
possession of the Mortgaged Property to Beneficiary, to the entry
of which judgment or decree Grantor hereby specifically consents.
Upon every such entering upon or taking of possession, Beneficiary
may hold, store, use, operate, manage and control the Mortgaged
Property and conduct the business thereof, and, from time to time
(i) make all necessary and proper maintenance, repairs,
renewals, replacements, additions, betterments and improvements
thereto and thereon and purchase or otherwise acquire additional
fixtures, personalty and other property; (ii) insure or keep
the Mortgaged Property insured; (iii) manage and operate the
Mortgaged Property and exercise all the rights and powers of
Grantor to the same extent as Grantor could in its own name or
otherwise with respect to the same; and (iv) enter into any
and all agreements with respect to the exercise by others of any of
the powers herein granted Beneficiary, all as Beneficiary from time
to time may determine to be in its best interest. Benef
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