Exhibit 10.2
PREPARED BY AND WHEN
RECORDED RETURN TO:
Alon USA, LP
7616 LBJ Freeway, Suite 300
Dallas, Texas 75251
Attn: Harlin R. Dean
[OKLAHOMA]
FORM OF
MORTGAGE
(WITH SECURITY AGREEMENT AND FINANCING STATEMENT)
BY
HEP FIN-TEX/TRUST-RIVER, L.P.,
A TEXAS LIMITED PARTNERSHIP,
AS MORTGAGOR
TO
ALON USA, LP,
A TEXAS LIMITED PARTNERSHIP,
AS MORTGAGEE
DATED AS OF MARCH 1, 2005
THIS INSTRUMENT COVERS, AMONG
OTHER PROPERTY, GOODS WHICH ARE OR MAY BECOME FIXTURES ON REAL
PROPERTY DESCRIBED ON EXHIBIT A HERETO, AND IS TO BE FILED FOR
RECORD IN THE REAL ESTATE RECORDS AS BOTH A MORTGAGE OF REAL
PROPERTY AND AS A FIXTURE FINANCING STATEMENT UNDER THE UNIFORM
COMMERCIAL CODE.
THIS INSTRUMENT IS TO BE FILED
AGAINST THE TRACT INDEX IN THE REAL ESTATE RECORDS FOR EACH COUNTY
IN OKLAHOMA FOR THE MORTGAGED PROPERTY LYING IN THE STATE OF
OKLAHOMA.
THIS INSTRUMENT MAY CONSTITUTE
THE GRANTING OF A SECURITY INTEREST BY A TRANSMITTING UTILITY
WITHIN THE MEANING OF TITLE 12A, SECTION 9-401(6) OF THE OKLAHOMA
STATUTES.
MORTGAGE (WITH SECURITY AGREEMENT AND FINANCING
STATEMENT)
THIS MORTGAGE
(WITH SECURITY AGREEMENT AND FINANCING STATEMENT) (hereinafter
referred to as this “ Mortgage ”), is
entered into as of the 1st day of March, 2005, by HEP
Fin-Tex/Trust-River, L.P., a Texas limited partnership (hereinafter
referred to as “ Mortgagor ”), a
subsidiary of Holly Energy Partners, L.P., a Delaware limited
partnership (“ HEP ”), whose address for
notice hereunder is at 100 Crescent Court, Suite 1600, Dallas,
Texas 75201-6927, Attention: General Counsel, facsimile number
(214) 871-3523, to Alon USA, LP, a Texas limited partnership
(hereinafter referred to “ Mortgagee ”),
whose address for notice hereunder is 7616 LBJ Freeway,
Suite 300, Dallas, Texas 75251, Attention: General Counsel,
facsimile number (972) 367-3724.
W I T N E S S E T H
:
ARTICLE 1
DEFINITIONS
|
1.1
|
Definitions
.
As used herein, the
following terms shall have the following meanings:
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(a) Affiliate
: With respect to a specified Person, any other Person
controlling, controlled by or under common control with that first
Person. As used in this definition, the term “control”
includes (a) with respect to any Person having voting shares
or the equivalent and elected directors, managers or Persons
performing similar functions, the ownership of or power to vote,
directly or indirectly, shares or the equivalent representing more
than 50% of the power to vote in the election of directors,
managers or Persons performing similar functions,
(b) ownership of more than 50% of the equity or equivalent
interest in any Person and (c) the ability to direct the
business and affairs of any Person by acting as a general partner,
manager or otherwise.
(b) Contracts
: The Terminal Contracts and/or the Pipeline Contracts, as the
context may require.
(c) Easements
: The Terminal Easements and/or the Pipeline Easements, as the
context may require.
(d) Event of
Default : Any happening or occurrence described in
Article 7 of this Mortgage.
(e) Fixtures
: All materials, supplies, equipment, apparatus and other items
now or hereafter acquired by Mortgagor and now or hereafter
attached to, installed in or used in connection with (temporarily
or permanently) any of the Real Property, the Pipelines or the
Terminals, together with all accessions, replacements, betterments
and substitutions for any of the foregoing and the proceeds
thereof.
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(f) Governmental
Entity : Any court, governmental department, commission,
council, board, bureau, agency or other judicial, administrative,
regulatory, legislative or other instrumentality of the United
States of America or any foreign country, or any state, county,
municipality or local governmental body or political subdivision or
any such other foreign country.
(g) Impositions
: All real estate and personal property taxes; water, gas,
sewer, electricity and other utility rates and charges; charges for
any easement, license or agreement maintained for the benefit of
the Mortgaged Property; and all other taxes, charges and
assessments and any interest, costs or penalties with respect
thereto, general and special, ordinary and extraordinary, foreseen
and unforeseen, of any kind and nature whatsoever which at any time
prior to or after the execution hereof may be assessed, levied or
imposed upon the Mortgaged Property or the ownership, use,
occupancy or enjoyment thereof.
(h) Improvements
: The Terminal Improvements and the Pipeline Improvements, as
the context may require.
(i) Leases :
Any and all leases, subleases, licenses, concessions or other
agreements (written or verbal, now or hereafter in effect) which
grant a possessory interest in and to, or the right to use, the
Mortgaged Property, and all other agreements, such as utility
contracts, maintenance agreements and service contracts, which in
any way relate to the use, occupancy, operation, maintenance,
enjoyment or ownership of the Mortgaged Property, including,
without limitation, the Surface Leases, save and except any and all
leases, subleases or other agreements pursuant to which Mortgagor
is granted a possessory interest in the Real Property.
(j) Legal
Requirements : Shall mean (i) any and all laws,
statutes, codes, rules, regulations, ordinances, judgments, orders,
writs, decrees, requirements or determinations of any Governmental
Entity, and (ii) to the extent not covered by clause
(i) immediately above, any and all requirements of permits,
licenses, certificates, authorizations, concessions, franchises or
other approvals granted by any Governmental Entity .
(k) Mortgage
: Shall have the meaning set forth in the introductory
paragraph hereof.
(l) Mortgaged
Property : The Terminal Assets and the Pipeline Assets,
together with:
(i) all rights,
privileges, tenements, hereditaments, rights-of-way, easements,
appendages and appurtenances in anywise appertaining thereto, and
all right, title and interest of Mortgagor in and to any streets,
ways, alleys, strips or gores of land adjoining the Real Property
or any part thereof; and
(ii) all
betterments, additions, alterations, appurtenances, substitutions,
replacements and revisions thereof and thereto and all reversions
and remainders therein; and
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(iii) all other
property and rights of Mortgagor of every kind and character to the
extent specifically relating to and used or to be used solely in
connection with the foregoing property, and all proceeds and
products of any of the foregoing.
As
used in this Mortgage, the term “ Mortgaged
Property ” shall be expressly defined as meaning all
or, where the context permits or requires, any portion of the
above, and all or, where the context permits or requires, any
interest therein. Notwithstanding anything to the contrary herein,
in no event shall the term “ Mortgaged Property
” include any Product owned by third parties that may be
shipped through or stored at or in any of the Mortgaged
Property.
(m) Mortgagee
: The above defined Mortgagee.
(n) Mortgagor
: The above defined Mortgagor, whether one or more, and any and
all subsequent owners of the Mortgaged Property or any part
thereof.
(o) Obligations
: Shall have the meaning given such term in
Section 2.1.
(p) Permits :
The Terminal Permits and/or the Pipeline Permits, as the context
may require.
(q) Permitted
Encumbrances : Shall mean any of the following
matters:
(a) any (i) inchoate liens, security
interests or similar charges constituting or securing the payment
of expenses which were incurred incidental to the ownership and
operation of the Pipelines and Terminals (collectively, the “
Operations ”) or the operation, storage,
transportation, shipment, handling, repair, construction,
improvement or maintenance of the Mortgaged Property, and
(ii) materialman’s, mechanics’, repairman’s,
employees’, contractors’, operators’,
warehousemen’s, barge or ship owner’s and
carriers’ liens or other similar liens, security interests or
charges for liquidated amounts arising in the ordinary course of
business incidental to the conduct of the Operations or the
ownership and operation of the Mortgaged Property, securing amounts
the payment of which is not delinquent and that will be paid in the
ordinary course of business or, if delinquent, that are being
contested in good faith with any action or proceeding to foreclose
or attach any of the Mortgaged Property on account thereof properly
stayed; (b) any liens or security interests for Taxes not yet
delinquent or, if delinquent, that are being contested in good
faith in the ordinary course of business with any action or
proceeding to foreclose or attach any of the Mortgaged Property on
account thereof properly stayed; (c) any liens or security
interests reserved in leases, rights of way or other real property
interests for rental or for compliance with the terms of such
leases, rights of way or other real property interests, provided
payment of the debt secured is not delinquent or, if delinquent, is
being contested in good faith in the ordinary course of business
with any action or proceeding to
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foreclose or attach any of the Mortgaged
Property on account thereof properly stayed; (d) all prior
reservations of minerals in and under or that may be produced from
any of the lands constituting part of the Mortgaged Property or on
which any part of the Mortgaged Property is located; (e) all
liens (other than liens for borrowed money), security interests,
charges, easements, restrictive covenants, encumbrances, contracts,
instruments, obligations, discrepancies, conflicts, shortages in
area or boundary lines, encroachments or protrusions, or
overlapping of improvements, defects, irregularities and other
matters affecting or encumbering title to the Mortgaged Property
which individually or in the aggregate are not such as to
unreasonably or materially interfere with or prevent any material
operations conducted on the Mortgaged Property; (f) rights
reserved to or vested in any Governmental Entity to control or
regulate any of the Mortgaged Property or the Operations and all
Legal Requirements of such authorities, including any building or
zoning ordinances and all environmental laws; (g) any
contract, easement, instrument, lien, security instrument, permit,
amendment, extension or other matter entered into by a party in
accordance with the terms of the Contribution Agreement (as defined
in the Pipelines and Terminals Agreement) or in compliance with the
approvals or directives of the other party made pursuant to such
Contribution Agreement; (h) all Post Closing Consents (as
defined in the Contribution Agreement); (i) defects in the
early chain of the title consisting of the mere failure to recite
marital status in a document or omissions of successions of
heirship proceedings, unless such failure or omission results in
another person’s superior claim of title to the Pipeline
Easements or relevant portion thereof; (j) any assertion of a
defect based on a lack of a survey with respect to the Pipelines;
(k) any title defect affecting (or the termination or
expiration of) any easement, right of way, leasehold interest or
fee interest affecting property over which the Pipelines pass which
has been replaced prior to the date of this Mortgage by an
easement, right of way, leasehold interest or fee interest covering
substantially the same land or the portion thereof used by
Mortgagee or its affiliates; and (l) all Senior
Liens.
(r) Person :
An individual, a corporation, a partnership, a limited liability
company, an association, a trust, or any other entity or
organization, including, without limitation, any Governmental
Entity.
(s) Personalty
: The Terminal Equipment, the Pipeline Equipment, and all other
personal property (other than the Fixtures) and intangible assets
of any kind or character as defined in and subject to the
provisions of the Texas Business and Commerce Code (Article 9
— Secured Transactions), which are now or hereafter located
or to be located upon, within or about the Real Property, or which
are or may be used in or related to the planning, development,
financing or operation of the Mortgaged Property, together with all
accessories, replacements and substitutions thereto or therefor and
the proceeds thereof.
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(t) Pipeline
Assets : All of the following assets, properties and
rights, whether real, personal or mixed, which are owned or held
for use by Mortgagor solely in connection with the ownership or
operation of those certain pipelines described in Part I of
Exhibit B (the “ Pipelines ”) and
the maps depicted in Part II of Exhibit B:
(i) All
parcels of fee simple real property now or hereafter owned by
Mortgagor on which any part of the Pipelines are located including,
without limitation, the property held in fee by Mortgagor listed on
Part III of Exhibit B (collectively, the “
Pipeline Fee Land ”);
(ii) All
leases of real property now or hereafter entered into or acquired
by Mortgagor on which all or a part of the Pipelines are located,
including, without limitation, the leases (the “
Pipeline Leases ”) listed on Part IV of
Exhibit B;
(iii) All
easements, rights-of-way, property use agreements, line rights and
real property licenses (including right-of-way permits from
railroads and road crossing permits or other right-of-way permits
from Governmental Entities) required to operate the Pipelines now
or hereafter entered into or acquired by Mortgagor, including,
without limitation, the easements, rights-of-way, property use
agreements, line rights and real property licenses listed on
Part V of Exhibit B (the “ Pipeline
Easements ”);
(iv) All
structures, fixtures and appurtenances to the real property
described in clause (i) above and the leased land covered by
the leases described in clause (ii) above and now or hereafter
owned by Mortgagor, including, without limitation, any buildings,
pipelines and pumping facilities listed on Part VI of
Exhibit B (collectively, the “ Pipeline
Improvements ”);
(v) To
the extent same do not constitute Pipeline Improvements, any and
all fittings, cathodic protection ground beds, rectifiers, other
cathodic or electric protection devices, machinery, engines, pipes,
pipelines, valves, valve boxes, connections, gates, scraper trap
extenders, telecommunication facilities and equipment (including
microwave and other transmission towers), lines, wires, computer
hardware, fixed or mobile machinery and equipment, vehicle
refueling tanks, pumps, heating and non-pipeline pumping stations,
fittings, tools, furniture and metering equipment now or hereafter
acquired by Mortgagor, including, without limitation, (A) from
time to time located on the Pipeline Real Property, but excluding
the assets of others located at such locations, or
(B) wherever located, in each case as listed on Part VII
of Exhibit B (the “ Pipeline Equipment
”);
(vi) The
contracts, agreements, leases and other legally binding rights and
obligations of Mortgagor listed on Part VIII of
Exhibit B, but excluding those contracts and agreements
constituting Pipeline Leases and Pipeline Easements (the “
Pipeline Contracts ”);
(vii) The
intellectual property rights and related computer software listed
on Part IX of Exhibit B;
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(viii) All
permits, licenses, certificates, authorizations, registrations,
orders, waivers, variances and approvals now or hereafter granted
by any Governmental Entity to Mortgagor or its predecessors in
interest pertaining solely to the ownership or operation of the
Pipelines, including, without limitation, those permits, licenses,
certificates, authorizations, registrations, orders, waivers,
variances and approvals listed on Part X of Exhibit B, in
each case to the extent the same are assignable (the “
Pipeline Permits ”); and
(ix) All
records and documents now or hereafter acquired by Mortgagor
relating solely to the ownership, condition or operation of the
Pipeline Assets (the “ Pipeline Records
”).
(u) Pipeline
Contracts : Shall have the meaning set forth in subsection
(vi) of the definition of Pipeline Assets.
(v) Pipeline
Easements : Shall have the meaning set forth in subsection
(iii) of the definition of Pipeline Assets.
(w) Pipeline
Equipment : Shall have the meaning set forth in subsection
(v) of the definition of Pipeline Assets.
(x) Pipeline Fee
Land : Shall have the meaning set forth in subsection
(i) of the definition of Pipeline Assets.
(y) Pipeline
Improvements : Shall have the meaning set forth in
subsection (iv) of the definition of Pipeline
Assets.
(z) Pipeline
Leases : Shall have the meaning set forth in subsection
(ii) of the definition of Pipeline Assets.
(aa) Pipeline
Permits : Shall have the meaning set forth in subsection
(viii) of the definition of Pipeline Assets.
(bb) Pipeline Real
Property : Collectively, the Pipeline Fee Land, the
Pipeline Leases, the Pipeline Improvements and the Pipeline
Easements.
(cc) Pipeline
Records : Shall have the meaning set forth in subsection
(ix) of the definition of Pipeline Assets.
(dd) Pipelines
: Shall have the meaning set forth in the first paragraph of
the definition of Pipeline Assets.
(ee) Pipelines and
Terminals Agreement : That certain Pipelines and Terminals
Agreement dated as of February 28, 2005 between HEP and
Mortgagee, together with any amendments, restatements or
modifications from time to time made thereto.
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(ff) Product :
Crude oil, distilled liquid crude oil fractions, gasoline,
iso-butane, diesel fuel, and/or jet fuel transported through the
Pipelines.
(gg) Real Property
: The Terminal Real Property and the Pipeline Real
Property.
(hh) Security
Documents : This Mortgage and any and all other documents
now or hereafter executed by Mortgagor or any other Person to
evidence or secure the performance of the Obligations.
(ii) Senior Bank
Liens : Collectively, (a) each lien and security
interest in all or any portion of the Mortgaged Property heretofore
or hereafter granted by Mortgagor or its Affiliates in favor of
Union Bank of California, N.A., in its capacity as the
administrative agent (or any assignee of or successor to such
administrative agent) under the Senior Credit Agreement and on
behalf of the Credit Parties (as defined in the security documents
related to such liens and security interests), and (b) each
lien and security interest in all or any portion of the Mortgaged
Property hereafter granted by any Person who acquires an interest
in all or any portion of the Mortgaged Property securing senior
debt of such Person.
(jj) Senior Credit
Agreement : That certain Credit Agreement dated as of
July 7, 2004 (as extended, amended, supplemented and/or
restated, including any refinancing thereof in whole or in part,
from time to time) among Holly Energy Partners — Operating,
L.P., a Delaware limited partnership, the banks party thereto from
time to time, and Union Bank of California, N.A., in its capacity
as administrative agent (or any assignee of or successor to such
administrative agent).
(kk) Senior Lien
: Collectively, the Senior Bank Liens and each other lien and
security interest as to which the lien and security interest
granted pursuant to this Mortgage has been subordinated thereto
pursuant to the terms of a Subordination, Non-Disturbance and
Attornment Agreement in substantially the form of Attachment 1
hereto executed by the Mortgagee and the holder of such lien and
security interest and recorded in the Official Public Records of
Real Property of Cotton, Jefferson and Stephens Counties, Oklahoma,
and (at the election of such holder) any or all of the other
counties in Oklahoma in which any of the Mortgaged Property is
located.
(ll) Surface
Leases : The Terminal Leases and/or the Pipeline Leases, as
the context may require.
(mm) Taxes:
Any and all federal, state, local, foreign and other net income,
gross income, gross receipts, sales, use, ad valorem, transfer,
franchise, profits, license, leases, service, service use,
withholding, payroll, employment, excise, severance, stamp,
occupation, premium, property, windfall profits, customs, duties or
other taxes, fees, or assessments.
(nn) Terminal
Assets : All of the following assets, properties and
rights, whether real, personal or mixed, which are owned or held
for use by Mortgagor solely in connection
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with
the ownership or operation of those certain terminals described in
Part I of Exhibit A (the “ Terminals
”):
(i) All
parcels of fee simple real property now or hereafter owned by
Mortgagor on which any part of the Terminals is located including,
without limitation, the property listed on Part II of
Exhibit A (collectively, the “ Terminal Fee
Land ”);
(ii)
All leases of real property now or hereafter entered into or
acquired by Mortgagor on which all or a part of the Terminals is
located, including, without limitation, the leases (the “
Terminal Leases ”) listed on Part III of
Exhibit A;
(iii) All
easements, rights-of-way, property use agreements, line rights and
real property licenses (including right-of-way permits from
railroads and road crossing permits or other right-of-way permits
from Governmental Entities) required to operate the Terminals now
or hereafter entered into or acquired by Mortgagor, including,
without limitation, the easements, rights-of-way, property use
agreements, line rights and real property licenses listed on
Part IV of Exhibit A (the “ Terminal
Easements ”);
(iv) All
structures, fixtures and appurtenances to the real property
described in clause (i) above and the leased land covered by
the leases described in clause (ii) above and now or hereafter
owned by Mortgagor, including, without limitation, any buildings,
pipelines and pumping facilities, listed on Part V of
Exhibit A (collectively, the “ Terminal
Improvements ”);
(v) To
the extent same do not constitute Terminal Improvements, any and
all fittings, cathodic protection ground beds, rectifiers, other
cathodic or electric protection devices, machinery, engines, pipes,
pipelines, valves, valve boxes, connections, gates, scraper trap
extenders, telecommunication facilities and equipment (including
microwave and other transmission towers), lines, wires, computer
hardware, fixed or mobile machinery and equipment, vehicle
refueling tanks, pumps, heating and non-pipeline pumping stations,
fittings, tools, furniture and metering equipment, now or hereafter
acquired by Mortgagor, including, without limitation, (A) from
time to time located on the Terminal Real Property, but excluding
the assets of others located at such locations, or
(B) wherever located, in each case as listed on Part VI
of Exhibit A (the “ Terminal Equipment
”);
(vi) The
contracts, agreements, leases and other legally binding rights and
obligations of Mortgagor listed on Part VII of Exhibit A,
but excluding those contracts and agreements constituting Terminal
Leases and Terminal Easements (the “ Terminal
Contracts ”);
(vii) The
intellectual property rights and related computer software listed
on Part VIII of Exhibit A;
(viii) All
permits, licenses, certificates, authorizations, registrations,
orders, waivers, variances and approvals now or hereafter granted
by any Governmental Entity to
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Mortgagor or its predecessors in interest
pertaining solely to the ownership or operation of the Terminals,
including, without limitation, those permits, licenses,
certificates, authorizations, registrations, orders, waivers,
variances and approvals listed on Part IX of Exhibit A,
in each case to the extent the same are assignable (the “
Terminal Permits ”); and
(ix) All
records and documents now or hereafter acquired by Mortgagor
relating solely to the ownership, condition or operation of the
Terminal Assets (the “ Terminal Records
”).
(oo) Terminal
Contracts : Shall have the meaning set forth in subsection
(vi) of the definition of Terminal Assets.
(pp) Terminal
Easements : Shall have the meaning set forth in subsection
(iii) of the definition of Terminal Assets.
(qq) Terminal
Equipment : Shall have the meaning set forth in subsection
(v) of the definition of Terminal Assets.
(rr) Terminal Fee
Land : Shall have the meaning set forth in subsection
(i) of the definition of Terminal Assets.
(ss) Terminal
Improvements : Shall have the meaning set forth in
subsection (iv) of the definition of Terminal
Assets.
(tt) Terminal
Leases : Shall have the meaning set forth in subsection
(ii) of the definition of Terminal Assets.
(uu) Terminal
Permits : Shall have the meaning set forth in subsection
(viii) of the definition of Terminal Assets.
(vv) Terminal Real
Property : Collectively, the Terminal Fee Land, the
Terminal Leases, the Terminal Improvements and the Terminal
Easements.
(ww) Terminal
Records : Shall have the meaning set forth in subsection
(ix) of the definition of Terminal Assets.
(xx) Terminals
: Shall have the meaning set forth in the first paragraph of
the definition of Terminal Assets.
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ARTICLE 2
GRANT
2.1 Grant
. To secure and enforce the prompt performance and compliance
by HEP of all obligations set forth for HEP in Section 13(c),
Section 17(c), Section 17(d), Section 18 and
Section 21(c) of the Pipelines and Terminals Agreement, plus
all damages owed to Mortgagee resulting from any rejection of the
Pipelines and Terminals Agreement by HEP in any bankruptcy or
insolvency proceeding involving HEP, and any reasonable costs and
expenses (including, but not limited to, attorneys’ and
experts’ fees and court costs) incurred by Mortgagee in
enforcing and exercising its rights hereunder (collectively, the
“ Obligations ”), Mortgagor has GRANTED,
BARGAINED, SOLD and CONVEYED, and by these presents does GRANT,
BARGAIN, SELL and CONVEY, unto Mortgagee the Mortgaged Property,
subject, however, to the Permitted Encumbrances , TO HAVE
AND TO HOLD the Mortgaged Property unto Mortgagee, forever, and
Mortgagor does hereby bind itself, its successors and assigns to
WARRANT AND FOREVER DEFEND the title to the Mortgaged Property unto
Mortgagee against every Person whomsoever lawfully claiming or to
claim the same or any part thereof other than against any holder of
any Senior Lien; provided, however, that this grant shall terminate
upon the full performance and discharge of all of the Obligations
and in accordance with the other terms set forth herein.
ARTICLE 3
WARRANTIES AND
REPRESENTATIONS
Mortgagor hereby unconditionally warrants and
represents to Mortgagee as follows:
3.1
Organization and Power . Mortgagor (a) is a
limited partnership duly organized, validly existing and in good
standing under the laws of the State of Texas, and has complied
with all conditions prerequisite to its doing business in the State
of Texas and (b) has all requisite power and all governmental
certificates of authority, licenses, permits, qualifications and
documentation to own, lease and operate its properties and to carry
on its business as now being, and as proposed to be,
conducted.
3.2 Validity of
Security Documents . The execution, delivery and
performance by Mortgagor of the Security Documents (a) are
within Mortgagor’s powers and have been duly authorized by
Mortgagor’s partners or other necessary parties, and all
other requisite action for such authorization has been taken;
(b) have received all (if any) requisite prior governmental
approval in order to be legally binding and enforceable in
accordance with the terms thereof; and (c) will not violate,
be in conflict with, result in a breach of or constitute (with due
notice or lapse of time, or both) a default under, any Legal
Requirement or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of
Mortgagor’s property or assets, except as contemplated by the
provisions of the Security Documents. The Security Documents
constitute the legal, valid and binding obligations of
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Mortgagor and others obligated
under the terms of the Security Documents, in accordance with their
respective terms.
3.3 Lien of
this Instrument . Subject to the Senior Liens, this
Mortgage constitutes a valid and subsisting mortgage lien on the
Real Property and the Fixtures and a valid, subsisting security
interest in and to, and a valid assignment of, the Personalty and
Leases, all in accordance with the terms hereof.
3.4
Litigation . There are no actions, suits or
proceedings pending, or to the knowledge of Mortgagor threatened,
against or affecting the Mortgagor as a result of or in connection
with Mortgagor’s entering into this Mortgage, or involving
the validity or enforceability of this Mortgage or the priority of
the liens and security interests created by the Security Documents,
and no event has occurred (including specifically Mortgagor’s
execution of the Security Documents) which will violate, be in
conflict with, result in the breach of, or constitute (with due
notice or lapse of time, or both) a default under, any Legal
Requirement or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of
Mortgagor’s property other than the liens and security
interests created by the Security Documents.
ARTICLE 4
AFFIRMATIVE COVENANTS OF
MORTGAGOR
Mortgagor hereby unconditionally covenants and
agrees with Mortgagee as follows:
4.1 Lien
Status . Except for the Permitted Encumbrances, Mortgagor
will protect the lien and security interest status of this Mortgage
and except for the Permitted Encumbrances, will not, without the
prior written consent of Mortgagee, place, or permit to be placed,
or otherwise mortgage, hypothecate or encumber the Mortgaged
Property with, any other lien or security interest of any nature
whatsoever (statutory, constitutional or contractual) regardless of
whether same is allegedly or expressly inferior to the lien and
security interest created by this Mortgage, and, if any such lien
or security interest is asserted against the Mortgaged Property,
Mortgagor will promptly, at its own cost and expense, (a) pay
the underlying claim in full or take such other action so as to
cause same to be released and (b) within five days from the
date such lien or security interest is so asserted, give Mortgagee
notice of such lien or security interest. Such notice shall specify
who is asserting such lien or security interest and shall detail
the origin and nature of the underlying claim giving rise to such
asserted lien or security interest.
ARTICLE 5
NEGATIVE COVENANTS OF
MORTGAGOR
Mortgagor
hereby covenants and agrees with Mortgagee that, until the full
performance and discharge of all of the Obligations, Mortgagor will
not, without the prior written consent of
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Mortgagee, create, place or
permit to be created or placed, or through any act or failure to
act, acquiesce in the placing of, or allow to remain, any mortgage,
pledge, lien (statutory, constitutional or contractual), security
interest, encumbrance or charge on, or conditional sale or other
title retention agreement, regardless of whether same are expressly
subordinate to the liens of the Security Documents, with respect
to, the Mortgaged Property, other than the Permitted
Encumbrances.
ARTICLE 6
AFFIRMATIVE COVENANTS OF
MORTGAGEE
By
its acceptance hereof, Mortgagee recognizes that (a) Mortgagor
is obligated or may hereafter become obligated to any of the Credit
Parties in connection with the Senior Credit Agreement, and
(b) Mortgagor and any future owner of the Mortgaged Property
may incur additional indebtedness or become otherwise obligated to
one or more banks, insurance companies, investment banks or other
financial institutions regularly engaged in commercial lending
and/or bonds, debentures, notes and similar instruments evidencing
obligations that may be secured by liens or security interests on
some or all of Mortgagor’s property, including the Mortgaged
Property (the holder of such liens or security interests being a
“ Secured Lender ”). To the extent that
any such Secured Lender notifies Mortgagee of Secured
Lender’s desire to subordinate the lien and security interest
held by Mortgagee pursuant to this Mortgage, Mortgagee, by its
acceptance hereof, will agree to effect such subordination by
promptly executing, in one or more counterparts, a Subordination,
Non-Disturbance and Attornment Agreement in substantially the form
of Attachment 1 hereto (the “ SNDA ”).
The subordination of this Mortgage shall (i) not be effective
unless and until the SNDA has been executed by the Secured Lender,
and (ii) be subject to compliance by the Secured Lender with
its obligations under Section 3 and Section 4 of the
SNDA. Any Secured Lender who is a party to an SNDA and who is in
compliance with its obligations under Section 3 and
Section 4 of such SNDA is hereinafter referred to as a “
Lienholder .”
ARTICLE 7
EVENTS OF DEFAULT
The
term “ Event of Default ”, as used in the
Security Documents, shall mean the occurrence or happening, at any
time and from time to time, of any one or more of the
following.
7.1 Breach of
Mortgage . (a) Mortgagor shall (i) fail to
perform or observe, in any material respect, any covenant,
condition or agreement of this Mortgage to be performed or observed
by Mortgagor, or (ii) breach any warranty or representation
made by Mortgagor in this Mortgage, and such failure or breach
shall continue unremedied for a period of thirty (30) days
after receipt of written notice thereof to the Mortgagor from the
Mortgagee; provided, however, that in the event such failure or
breach cannot be reasonably cured within such thirty (30) day
period and Mortgagor has diligently proceeded (and continues to
proceed) to cure such breach, Mortgagor
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shall have an additional sixty
(60) days to cure such failure or breach, or (b) HEP
shall fail to perform all of the Obligations in full and on or
before the dates same are to be performed (after giving effect to
any applicable grace and cure periods).
7.2 Voluntary
Bankruptcy . Mortgagor shall (i) voluntarily be
adjudicated a bankrupt or insolvent, (ii) procure, permit or
suffer the voluntary or involuntary appointment of a receiver,
trustee or liquidator for itself or for all or any substantial
portion of its property, (iii) file any petition seeking a
discharge, rearrangement, or reorganization of its debts pursuant
to the bankruptcy laws or any other debtor relief laws of the
United States or any state or any other competent jurisdiction, or
(iv) make a general assignment for the benefit of its
creditors.
7.3 Involuntary
Bankruptcy . If (i) a petition is filed against
Mortgagor seeking to rearrange, reorganize or extinguish its debts
under the provisions of any bankruptcy or other debtor relief law
of the United States or any state or other competent jurisdiction,
and such petition is not dismissed or withdrawn within sixty
(60) days after its filing, or (ii) a court of competent
jurisdiction enters an order, judgment or decree appointing,
without the consent of Mortgagor a receiver or trustee for it, or
for all or any part of its property, and such order, judgment, or
decree is not dismissed, withdrawn or reversed within sixty
(60) days after the date of entry of such order, judgment or
decree.
7.4 Rejection
of Pipelines and Terminals Agreement . A rejection, by or
on behalf of Mortgagor or HEP, of the Pipelines and Terminals
Agreement in bankruptcy.
ARTICLE 8
DEFAULT
8.1
Remedies . Subject, in each case, to the rights of
any Lienholder arising under or pursuant to the Senior Liens, and
the terms and provisions of the SNDA, and provided no Alon Event of
Default (as defined in the Pipelines and Terminals Agreement) has
occurred and is continuing (other than an Alon Event of Default
resulting solely and directly from a failure by HEP to comply with
the Obligations), if an Event of Default shall occur and be
continuing, Mortgagee may, at Mortgagee’s election, exercise
any or all of the following rights, remedies and
recourses.
(a) Entry Upon
Mortgaged Property . Enter upon the Mortgaged Property and
take exclusive possession thereof and of all books, records and
accounts relating thereto. If Mortgagor remains in possession of
all or any part of the Mortgaged Property after an Event of Default
and without Mortgagee’s prior written consent thereto,
Mortgagee may invoke any and all legal remedies (other than
foreclosure) to dispossess Mortgagor, including specifically one or
more actions for forcible entry and detainer, trespass to try title
and writ of restitution. Nothing contained in the foregoing
sentence shall, however, be construed to impose any greater
obligation or any prerequisites to acquiring possession of the
Mortgaged Property after an Event of Default than would have
existed in the absence of such sentence.
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(b) Operation
of Mortgaged Property . Hold, lease, manage, operate or
otherwise use or permit the use of the Mortgaged Property, either
itself or by other Persons, firms or entities, in such manner, for
such time and upon such other terms as Mortgagee may deem to be
prudent and reasonable under the circumstances (making such
repairs, alterations, additions and improvements thereto and taking
any and all other action with reference thereto, from time to time,
as Mortgagee shall deem necessary or desirable), and apply all
amounts collected by Mortgagee in connection therewith in
accordance with the provisions of Section 8.7.
(c) Trustee or
Receiver . Prior to, upon or at any time after,
commencement of any legal proceedings hereunder, make application
to a court of competent jurisdiction as a matter of strict right
and without notice to Mortgagor or regard to the adequacy of the
Mortgaged Property for the satisfaction of the Obligations for
appointment of a receiver of the Mortgaged Property, and Mortgagor
does hereby irrevocably consent to such appointment. Any such
receiver shall have all the usual powers and duties of receivers in
similar cases, including the full power to rent, maintain and
otherwise operate the Mortgaged Property upon such terms as may be
approved by the court.
(d) Other
. Exercise any and all other rights, remedies and recourses
granted under this Mortgage.
8.2 Remedies
Cumulative, Concurrent and Nonexclusive . Mortgagee shall
have all rights, remedies and recourses granted in the Pipelines
and Terminals Agreement and, subject to the rights of any
Lienholder arising under or pursuant to the Senior Liens, and the
terms and provisions of the SNDA, this Mortgage and same
(a) shall be cumulative and concurrent; (b) may be
pursued separately, successively or concurrently against Mortgagor
or others obligated under this Mortgage, or against the Mortgaged
Property, or against any one or more of them, at the sole
discretion of Mortgagee; (c) may be exercised as often as
occasion therefor shall arise, it being agreed by Mortgagor that
the exercise or failure to exercise any of same shall in no event
be construed as a waiver or release thereof or of any other right,
remedy or recourse; and (d) are intended to be, and shall be,
nonexclusive.
8.3
Obligations . Neither Mortgagor, HEP nor any other
Person hereafter obligated for performance or fulfillment of all or
any of the Obligations shall be relieved of such obligation by
reason of (a) the release, regardless of consideration, of the
Mortgaged Property or the addition of any other property to the
Mortgaged Property; (b) any agreement or stipu
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