PREPARED BY AND
WHEN
RECORDED RETURN TO:
Holly
Corporation
100 Crescent Court, Suite 1600
Dallas, Texas 75201-6927
Attn: General Counsel
MORTGAGE, LINE OF CREDIT MORTGAGE
AND DEED OF TRUST
(WITH SECURITY AGREEMENT AND FINANCING STATEMENT)
LOVINGTON-ARTESIA, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY,
AS GRANTOR
JOHN N. PATTERSON,
AS TRUSTEE
HOLLY CORPORATION,
A DELAWARE CORPORATION
AS BENEFICIARY
DATED EFFECTIVE AS OF JUNE 1,
2009
THIS INSTRUMENT
GRANTS A SECURITY INTEREST BY A TRANSMITTING UTILITY.
THIS INSTRUMENT
COVERS GOODS THAT ARE OR ARE TO BECOME FIXTURES ON THE REAL
PROPERTY DESCRIBED HEREIN AND IS TO BE FILED FOR RECORD IN THE
RECORDS WHERE MORTGAGES ON REAL ESTATE ARE RECORDED. ADDITIONALLY,
THIS INSTRUMENT SHOULD BE APPROPRIATELY INDEXED, NOT ONLY AS A
MORTGAGE, BUT ALSO AS A FINANCING STATEMENT COVERING GOODS THAT ARE
OR ARE TO BECOME FIXTURES ON THE REAL PROPERTY DESCRIBED HEREIN.
THE MAILING ADDRESSES OF THE GRANTOR (DEBTOR) AND BENEFICIARY
(BENEFICIARY) ARE SET FORTH IN THIS INSTRUMENT.
MORTGAGE, LINE OF CREDIT MORTGAGE
AND DEED OF TRUST
(WITH SECURITY AGREEMENT AND FINANCING STATEMENT)
This MORTGAGE,
LINE OF CREDIT MORTGAGE AND DEED OF TRUST (WITH SECURITY AGREEMENT
AND FINANCING STATEMENT) (hereinafter referred to as this “
Deed of Trust ”), is entered into effective as
of the 1st day of June, 2009, by LOVINGTON-ARTESIA, L.L.C., a
Delaware limited liability company (hereinafter referred to as
“ Grantor ”), 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 John N. Patterson, Trustee (hereinafter referred to in such
capacity as “ Trustee ”), whose address
is PO Box 9570, Santa Fe, New Mexico 87504, for the benefit of the
herein below defined Beneficiary.
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1.1
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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
(i) 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, (ii) ownership of more than 50%
of the equity or equivalent interest in any Person and
(iii) the ability to direct the business and affairs of any
Person by acting as a general partner, manager or
otherwise.
(b)
Beneficiary :
Holly Corporation, a Delaware corporation whose address for notice
hereunder is 100 Crescent Court, Suite 1600, Dallas, Texas
75201-6927, Attention: General Counsel.
(c)
Contracts : The
Pipeline Contracts.
(d) Deed
of Trust : Shall have
the meaning set forth in the introductory paragraph
hereof.
(e)
Easements : The
Pipeline Easements.
(f) Event
of Default : Any
happening or occurrence described in Article 7 of this Deed of
Trust.
(g)
Fixtures : All
materials, supplies, equipment, apparatus and other items now or
hereafter acquired by Grantor and now or hereafter attached to,
installed in or used in
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connection with
(temporarily or permanently) the Real Property or the Pipelines,
together with all accessions, replacements, betterments and
substitutions for any of the foregoing and the proceeds
thereof.
(h)
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.
(i)
Grantor : The
above defined Grantor, whether one or more, and any and all
subsequent owners of the Mortgaged Property or any part
thereof.
(j)
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.
(k)
Improvements : The
Pipeline Improvements.
(l)
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, save and except any and all
leases, subleases or other agreements pursuant to which Grantor is
granted a possessory interest in the Real Property.
(m) Legal
Requirements :
(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.
(n)
Mortgaged Property : 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 Grantor 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 Grantor 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
Deed of Trust, 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.
(o)
Obligations :
Shall have the meaning given such term in
Section 2.1.
(p)
Permits : The
Pipeline Permits.
(q)
Permitted Encumbrances : Any of the following matters:
(i) any
(A) 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
(collectively, the “ Operations ”) or the
operation, storage, transportation, shipment, handling, repair,
construction, improvement or maintenance of the Mortgaged Property,
and (B) 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; (ii) 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; (iii) 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 foreclose or attach
any of the Mortgaged Property on account thereof properly stayed;
(iv) 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; (v) 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
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aggregate are
not such as to unreasonably or materially interfere with or prevent
any material operations conducted on the Mortgaged Property;
(vi) 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; (vii) 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 Purchase
Agreement (as defined in the Pipelines Agreement) or in compliance
with the approvals or directives of the other party made pursuant
to such Purchase Agreement; (viii) all Post-Closing Consents
(as defined in the Purchase Agreement); (ix) 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; (x) any assertion of a defect based
on a lack of a survey with respect to the Pipelines; (xi) 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 Deed of Trust by an easement,
right of way, leasehold interest or fee interest covering
substantially the same land or the portion thereof used by
Beneficiary or its Affiliates; and (xii) 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
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 Uniform Commercial Code
Article 9 — Secured Transactions, as the same is
codified and in effect in New Mexico, 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.
(t)
Pipeline Assets :
All of the following assets, properties and rights, whether real,
personal or mixed, which are owned or held for use by Grantor
solely in connection with the ownership or operation of those
certain pipelines described on Exhibit G (the “
Pipelines ”):
(i) All
parcels of fee simple real property now or hereafter owned by
Grantor on which any part of the Pipelines are located including,
without limitation, the property held in fee by Grantor described
on Exhibit A , if any (collectively, the “
Pipeline Fee Land ”);
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(ii) All
leases of real property now or hereafter entered into or acquired
by Grantor on which all or a part of the Pipelines are located,
including, without limitation, the leases described on
Exhibit B , if any (the “ Pipeline
Leases ”);
(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 Grantor, including,
without limitation, the easements, rights-of-way, property use
agreements, line rights and real property licenses described on
Exhibit C (the “ Pipeline Easements
”);
(iv) All
structures, fixtures and appurtenances (A) located on the
Pipeline Fee Land, (B) located on the land subject to the
Pipeline Leases, or (C) located within the Pipeline Easements,
and now or hereafter owned by Grantor, including, without
limitation, any buildings, pipelines, pumping facilities, refinery
tanks, crude oil tanks and crude oil pipeline tanks described on
Exhibit D (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, tanks, 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 owned or
hereafter acquired by Grantor (the “ Pipeline
Equipment ”);
(vi) The
contracts, agreements, leases and other legally binding rights and
obligations of Grantor described on Exhibit E , if any,
but excluding those contracts and agreements constituting Pipeline
Leases and Pipeline Easements (the “ Pipeline
Contracts ”);
(vii) Intellectual property rights and
related computer software;
(viii) All
permits, licenses, certificates, authorizations, registrations,
orders, waivers, variances and approvals now or hereafter granted
by any Governmental Entity to Grantor 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 described on Exhibit C , in
each case to the extent the same are assignable (the “
Pipeline Permits ”); and
(ix) All
records and documents now or hereafter acquired by Grantor relating
solely to the ownership, condition or operation of the Pipeline
Assets (the “ Pipeline Records
”).
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(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 Agreement : That certain Amended and Restated Intermediate
Pipelines Agreement dated as of June 1, 2009, by and among
Beneficiary, Navajo Refining Company, L.L.C., a Delaware limited
liability company, HEP, Holly Energy Partners—Operating,
L.P., a Delaware limited partnership, HEP Pipeline, L.L.C., a
Delaware limited liability company, Grantor, HEP Logistics
Holdings, L.P., a Delaware limited partnership, Holly Logistic
Services, L.L.C., a Delaware limited liability company, and HEP
Logistics GP, L.L.C., a Delaware limited liability
company.
(ff)
Product : Crude
oil, gas oil, diesel, kerosene, casinghead, naphtha, normal butane
and isobutane transported through the Pipelines.
(gg)
Purchase Agreement : That certain LLC Interest Purchase Agreement
dated as of June 1, 2009, by and between Navajo Pipeline Co.,
L.P., a Delaware limited partnership, and Holly Energy Partners
— Operating, L.P., a Delaware limited partnership.
(hh) Real
Property : The
Pipeline Real Property.
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(ii)
Security Documents : This Deed of Trust and any and all other
documents now or hereafter executed by Grantor or any other Person
to evidence or secure the performance of the
Obligations.
(jj)
Senior Bank Liens : Collectively, (i) each lien and security
interest in all or any portion of the Mortgaged Property heretofor
or hereafter granted by Grantor or its Affiliates under the Senior
Credit Agreement, and (ii) 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.
(kk)
Senior Credit Agreement : That certain Amended and Restated Credit
Agreement dated as of August 27, 2007 (as extended, amended,
supplemented, restated, replaced or refinanced 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, N.A., in its capacity as
administrative agent (or any assignee of or successor to such
administrative agent).
(ll)
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 Deed of Trust shall be 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 Beneficiary and the holder of such lien and
security interest and recorded in the Official Public Records of
Real Property of Lea County, New Mexico or Eddy County, New Mexico,
as applicable.
(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.
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2.1
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Grant . To secure and enforce the prompt
performance and compliance by the Partnership Entities (as defined
in the Pipelines Agreement) of all obligations set forth for such
Persons in Section 2(f), Section 7, and Section 11(b) of
the Pipelines Agreement, plus all claims (as such term is defined
in the Bankruptcy Code) of or damages owed to the Beneficiary
against the Partnership Entities and/or the Mortgaged Property
resulting from any rejection of the Pipelines Agreement by any such
Person in any bankruptcy or insolvency proceeding involving any
Partnership Entity, and any reasonable costs and expenses
(including, but not limited to, attorneys’ and experts’
fees and court costs) incurred by Beneficiary in enforcing and
exercising its rights hereunder (collectively, the “
Obligations ”), Grantor has GRANTED, BARGAINED,
SOLD and CONVEYED, and by these presents does GRANT, BARGAIN, SELL
and CONVEY, unto Trustee the
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Mortgaged Property, subject,
however, to the Permitted Encumbrances , TO HAVE AND TO HOLD
the Mortgaged Property unto Trustee, forever, and Grantor does
hereby bind itself, its successors and assigns to WARRANT AND
FOREVER DEFEND the title to the Mortgaged Property unto Trustee
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.
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2.2
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Maximum Secured
Indebtedness . THE OUTSTANDING INDEBTEDNESS
SECURED BY PROPERTY LOCATED IN NEW MEXICO SHALL NOT AT ANY ONE TIME
EXCEED THE AGGREGATE MAXIMUM AMOUNT OF $45,000,000, WHICH SHALL
CONSTITUTE THE MAXIMUM AMOUNT AT ANY TIME SECURED
HEREBY.
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WARRANTIES AND
REPRESENTATIONS
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Grantor hereby unconditionally
warrants and represents to Beneficiary as follows:
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3.1
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Organization and
Power .
Grantor (a) is a limited liability company duly organized,
validly existing and in good standing under the laws of the State
of Delaware, and has complied with all conditions prerequisite to
its doing business in the State of New Mexico 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.
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3.2
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Validity of Security
Documents . The execution, delivery and
performance by Grantor of the Security Documents (a) are
within Grantor’s powers and have been duly authorized by
Grantor’s Manager 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
Grantor’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 Grantor and
others obligated under the terms of the Security Documents, in
accordance with their respective terms.
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3.3
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Lien of this
Instrument . Subject to the Senior Liens, this
Deed of Trust constitutes a valid and subsisting mortgage and deed
of trust 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.
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3.4
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Litigation
. There are no actions,
suits or proceedings pending, or to the knowledge of Grantor
threatened, against or affecting the Grantor as a result of or in
connection with Grantor’s entering into this Deed of Trust,
or involving the validity or enforceability of this Deed of Trust
or the priority of the liens and security interests created by the
Security Documents, and no event has occurred (including
specifically Grantor’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 Grantor’s property other than the
liens and security interests created by the Security
Documents.
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AFFIRMATIVE COVENANTS OF
GRANTOR
Grantor hereby
unconditionally covenants and agrees with Beneficiary that, except
for the Permitted Encumbrances, Grantor will protect the lien and
security interest status of this Deed of Trust and except for the
Permitted Encumbrances, will not, without the prior written consent
of Beneficiary, 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 Deed of Trust, and, if any such lien or
security interest is asserted against the Mortgaged Property,
Grantor 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
Beneficiary 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.
NEGATIVE COVENANTS OF
GRANTOR
Grantor hereby
covenants and agrees with Beneficiary that, until the full
performance and discharge of all of the Obligations, Grantor will
not, without the prior written consent of Beneficiary, 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.
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AFFIRMATIVE COVENANTS OF
BENEFICIARY
By its acceptance
hereof, Beneficiary recognizes that (a) Grantor is obligated
or may hereafter become obligated to any of the Credit Parties (as
defined in the SNDA [defined below]) in connection with the Senior
Credit Agreement, and (b) Grantor 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 Grantor’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
Beneficiary of Secured Lender’s desire to subordinate the
lien and security interest held by Beneficiary pursuant to this
Deed of Trust, Beneficiary, 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 Deed
of Trust 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
.”
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.
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7.1
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Breach of Deed of
Trust .
(a) Grantor shall (i) fail to perform or observe, in any
material respect, any covenant, condition or agreement of this Deed
of Trust to be performed or observed by Grantor, or
(ii) breach any warranty or representation made by Grantor in
this Deed of Trust, and such failure or breach shall continue
unremedied for a period of thirty (30) days after receipt of
written notice thereof to the Grantor from the Beneficiary;
provided, however, that in the event such failure or breach cannot
be reasonably cured within such thirty (30) day period and
Grantor has diligently proceeded (and continues to proceed) to cure
such breach, Grantor 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).
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7.2
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Voluntary Bankruptcy
. Grantor shall
(a) voluntarily be adjudicated a bankrupt or insolvent,
(b) 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, (c) 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
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any
state or any other competent jurisdiction, or (d) make a
general assignment for the benefit of its creditors.
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7.3
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Involuntary
Bankruptcy . If (a) a petition is filed
against Grantor 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 (b) a court
of competent jurisdiction enters an order, judgment or decree
appointing, without the consent of Grantor 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.
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7.4
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Rejection of Pipelines
Agreement . A rejection, by or on behalf of
Grantor or any other Partnership Entity (as defined in the
Pipelines Agreement), of the Pipelines Agreement in
bankruptcy.
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8.1
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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
material default by the Holly Entities (as defined in the Pipelines
Agreement) has occurred and is continuing, if an Event of Default
shall occur and be continuing, Beneficiary may, at
Beneficiary’s election and by or through Trustee or
otherwise, exercise any or all of the following rights, remedies
and recourses:
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(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 Grantor remains in possession of all or any
part of the Mortgaged Property after an Event of Default and
without Beneficiary’s prior written consent thereto,
Beneficiary may invoke any and all legal remedies to dispossess
Grantor, 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.
(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 Beneficiary 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
Beneficiary shall deem necessary or desirable), and apply all
amounts collected by Trustee or Beneficiary in connection therewith
in accordance with the provisions of Section 8.8.
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(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 Grantor 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 Grantor
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
Deed of Trust.
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8.2
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Remedies Cumulative, Concurrent and
Nonexclusive . Beneficiary shall have all
rights, remedies and recourses granted in the Pipelines 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, the Deed of Trust and same (a) shall be cumulative and
concurrent; (b) may be pursued separately, successively or
concurrently against Grantor or others obligated under this Deed of
Trust, or against the Mortgaged Property, or against any one or
more of them, at the sole discretion of Beneficiary; (c) may
be exercised as often as occasion therefor shall arise, it being
agreed by Grantor 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.
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8.3
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Obligations
. Neither Grantor, any
other Partnership Entity (as defined in the Pipelines Agreement)
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 failure of Trustee to
comply with any request of Grantor or any other Person to enforce
any provisions of this Deed of Trust; (b) the release,
regardless of consideration, of the Mortgaged Property or the
addition of any other property to the Mortgaged Property;
(c) any agreement or stipulation between any subsequent owner
of the Mortgaged Property and Beneficiary extending, renewing,
rearranging or in any other way modifying the terms of the Security
Documents without first having obtained the consent of, given
notice to or paid any consideration to Grantor or such other
Person, and in such event Grantor and all such other Persons shall
continue to be liable to make payment according to the terms of any
such extension or modification agreement unless expressly released
and discharged in writing by Beneficiary; or (d) by any other
act or occurrence save and except the complete fulfillment of all
of the Obligations.
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8.4
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Release of and Resort to
Collateral . Beneficiary may release,
regardless of consideration, any part of the Mortgaged Property
without, as to the remainder, in any way impairing, affecting,
subordinating or releasing the lien or security interest created in
or evidenced by this Deed of Trust or their stature as a lien and
security interest in and to the Mortgaged Property.
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8.5
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Waiver of Redemption, Notice and
Marshalling of Assets . To the fullest extent permitted by
law, Grantor hereby irrevocably and unconditionally waives and
releases (a)
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all
benefits that might accrue to Grantor by virtue of any present or
future law exempting the Mortgaged Property from attachment, levy
or sale on execution or providing for any appraisement, valuation,
stay of execution, exemption from civil process, redemption or
extension of time for payment; (b) all notices of any Event of
Default or of Trustee’s election to exercise or his actual
exercise of any right, remedy or recourse provided for under this
Deed of Trust; and (c) any right to a marshalling of assets or
a sale in inverse order of alienation.
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8.6
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Limitation on New Mexico
Redemption . Pursuant to NMSA 1978,
Section 39-5-19 (1965), the redemption period after
foreclosure sale for any Mortgaged Property situated in or
otherwise subject to the laws of the State of New Mexico shall be
limited to one (1) month.
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8.7
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Discontinuance of
Proceedings . In case Beneficiary shall have
proceeded to invoke any right, remedy or recourse permitted under
this Deed of Trust and shall thereafter elect to discontinue or
abandon same for any reason, Beneficiary shall have the unqualified
right so to do and, in such an event, Grantor and Beneficiary shall
be restored to their former positions with respect to the
Obligations, the Security Documents, the Mortgaged Property and
otherwise, and the rights, remedies, recourses and powers of
Beneficiary shall continue as if same had never been
invoked.
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8.8
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Application of
Proceeds . Subject, in each case, to
applicable law and the rights of any Lienholder arising under or
pursuant to the Senior Liens, and the terms and provisions of the
SNDA (including, without limitation, the right to receive payments
otherwise due to HEP under the terms of the Pipelines Agreement),
the proceeds and other amounts generated by the holding, operating
or other use of, the Mortgaged Property shall be applied by Trustee
or Beneficiary (or the receiver, if one is appointed) to the extent
that funds are so available therefrom in the following orders of
priority:
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(a) first, to the payment of the costs and expenses
of taking possession of the Mortgaged Property and of holding,
using, leasing, repairing and improving the same, including without
limitation (i) trustees’ and receivers’ fees,
(ii) court costs, (iii) attorneys’ and
accountants’ fees, and (iv) the payment of any and all
Impositions, liens, security interests or other rights, titles or
interests equal or superior to the lien and security interest of
this Deed of Trust (except those to which the Mortgaged Property
has been sold subject to and without in any way implying
Beneficiary’s prior consent to the creation
thereof);
(b) second, to the payment of all amounts which may
be due to Beneficiary with respect to the Obligations;
(c) third, to the extent permitted by law, funds are
available therefor out of the proceeds generated by the holding,
operating or other use of the Mortgaged Property and known by
Beneficiary, to the payment of any indebtedness or obligation
secured by a subordinate deed of trust on or security interest in
the Mortgaged Property; and
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8.9
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INDEMNITY
. IN CONNECTION WITH
ANY ACTION TAKEN BY TRUSTEE AND/OR BENEFICIARY PURSUANT TO THIS
DEED OF TRUST, TRUSTEE AND/OR BENEFICIARY AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, EMPLOYEES,
AGENTS, REPRESENTATIVES, ATTORNEYS, ACCOUNTANTS AND EXPERTS
(COLLECTIVELY THE “INDEMNIFIED PARTIES”) SHALL NOT BE
LIABLE FOR ANY LOSS SUSTAINED BY GRANTOR RESULTING FROM (i) AN
ASSERTION THAT TRUSTEE, BENEFICIARY OR INDEMNIFIED PARTY HAS
RECEIVED FUNDS FROM THE OPERATIONS OF THE MORTGAGED PROPERTY
CLAIMED BY THIRD PERSONS OR (ii) ANY ACT OR OMISSION OF
TRUSTEE, BENEFICIARY OR INDEMNIFIED PARTY IN ADMINISTERING,
MANAGING, OPERATING OR CONTROLLING THE MORTGAGED PROPERTY,
INCLUDING IN EITHER CASE SUCH LOSS WHICH MAY RESULT FROM THE
ORDINARY NEGLIGENCE OF TRUSTEE, BENEFICIARY OR AN INDEMNIFIED PARTY
OR WHICH MAY RESULT FROM STRICT LIABILITY, WHETHER UNDER APPLICABLE
LAW OR OTHERWISE, UNLESS SUCH LOSS IS CAUSED BY THE GROSS
NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH OF TRUSTEE, BENEFICIARY
OR ANY INDEMNIFIED PARTY NOR SHALL TRUSTEE, BENEFICIARY AND/OR ANY
INDEMNIFIED PARTY BE OBLIGATED TO PERFORM OR DISCHARGE ANY
OBLIGATION, DUTY OR LIABILITY OF GRANTOR. GRANTOR SHALL AND DOES
HEREBY AGREE TO INDEMNIFY TRUSTEE, BENEFICIARY AND EACH OF THEIR
RESPECTIVE INDEMNIFIED PARTIES FOR, AND TO HOLD THEM HARMLESS FROM,
ANY AND ALL LOSSES WHICH MAY OR MIGHT BE INCURRED BY TRUSTEE,
BENEFICIARY OR INDEMNIFIED PARTY BY REASON OF THIS DEED OF TRUST OR
THE EXERCISE OF RIGHTS OR REMEDIES HEREUNDER, INCLUDING SUCH LOSSES
WHICH MAY RESULT FROM THE ORDINARY NEGLIGENCE OF TRUSTEE,
BENEFICIARY OR AN INDEMNIFIED PARTY OR WHICH MAY RESULT FROM STRICT
LIABILITY, WHETHER UNDER APPLICABLE LAW OR OTHERWISE, UNLESS SUCH
LOSS IS CAUSED BY THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD
FAITH OF TRUSTEE, BENEFICIARY OR INDEMNIFIED PARTY. SHOULD TRUSTEE,
BENEFICIARY AND/OR ANY INDEMNIFIED PARTY MAKE ANY EXPENDITURE ON
ACCOUNT OF ANY SUCH LOSSES, THE AMOUNT THEREOF, INCLUDING, WITHOUT
LIMITATION, COSTS, EXPENSES AND REASONABLE ATTORNEYS’ FEES,
SHALL BE A DEMAND OBLIGATION (WHICH OBLIGATION GRANTOR HEREBY
EXPRESSLY PROMISES TO PAY) OWING BY GRANTOR TO TRUSTEE AND/OR
BENEFICIARY AND SHALL BEAR INTEREST FROM THE DATE EXPENDED UNTIL
PAID AT THE HIGHEST RATE ALLOWED BY LAW, SHALL BE A PART OF THE
OBLIGATIONS AND SHALL BE SECURED BY THIS DEED OF TRUST. THE
LIABILITIES OF GRANTOR AS SET FORTH IN THIS SECTION 8.9 SHALL
SURVIVE THE TERMINATION OF THIS DEED OF TRUST.
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8.10
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Limitations on
Indemnifications .
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(a) To
the extent, if at all, but only to the extent, that NMSA 1978,
Section 56-7-1 (1971), as amended from time to time, is
applicable to this Deed of Trust or any indemnification agreements
herein, any agreement to indemnify any indemnitee given in this
Deed of Trust, regardless of whether such agreement to indemnify
makes reference to this or any other limitation provision, will not
extend to liability, claims, damages, losses or expenses, including
attorneys’ fees, arising out of (i) the preparation or
approval of maps, drawings, opinions, reports, surveys, change
orders, designs or specifications by such indemnitee, or the agents
or employees of such indemnitee, or (ii) the giving of or the
failure to give directions or instructions by such indemnitee, or
the agents or employees of such indemnitee, where such giving or
failure to give directions or instructions is the primary cause of
bodily injury to persons or damage to property.
(b) To
the extent, if at all, but only to the extent, that NMSA 1978,
Section 56-7-2 (1999), as amended from time to time, is
applicable to this Deed of Trust or any indemnification agreements
herein, or agreement to indemnify any indemnitee given in this Deed
of Trust, regardless of whether such undertaking or agreement to
indemnify makes reference to this or any other limitation
provision, this Deed of Trust does not purport to indemnify such
indemnitee against loss or liability for damages arising from:
(i) the sole or concurrent negligence of such indemnitee or
the agents or employees of such indemnitee; (ii) the sole or
concurrent negligence of an independent contractor who is directly
responsible to such indemnitee; or (iii) an accident that
occurs in operations carried on at the direction or under the
supervision of such indemnitee, an employee or representative of
such indemnitee or in accordance with methods and means specified
by such indemnitee or the employees or representatives of such
indemnitee.
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9.1
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Security Interest
. This Deed of Trust
shall be construed as a deed of trust on real property and it shall
(subject to the Senior Liens) also constitute and serve as a
“Security Agreement” on personal property within the
meaning of, and shall constitute a security interest under, the
Uniform Commercial Code (as the same is codified and in effect in
New Mexico) with respect to the Personalty, Fixtures and Leases. To
this end, Grantor has GRANTED, BARGAINED, CONVEYED, ASSIGNED,
TRANSFERRED, AND SET OVER, and by these presents does GRANT,
BARGAIN, CONVEY, ASSIGN, TRANSFER AND SET OVER, unto Trustee and
unto Beneficiary, a security interest in all of Grantor’s
right, title and interest in, to and under the Personalty, Fixtures
and Leases to secure the full and timely performance and discharge
of the Obligations, subject only to the Permitted
Encumbrances.
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