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WITH SECURITY AGREEMENT

Security Agreement

WITH SECURITY AGREEMENT | Document Parties: HOLLY ENERGY PARTNERS LP | HEP LOGISTICS GP, LLC | Holly Corporation | HOLLY LOGISTIC SERVICES, LLC | LOVINGTON-ARTESIA, LLC | RECORDS WHERE MORTGAGES ON REAL ESTATE You are currently viewing:
This Security Agreement involves

HOLLY ENERGY PARTNERS LP | HEP LOGISTICS GP, LLC | Holly Corporation | HOLLY LOGISTIC SERVICES, LLC | LOVINGTON-ARTESIA, LLC | RECORDS WHERE MORTGAGES ON REAL ESTATE

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Title: WITH SECURITY AGREEMENT
Governing Law: Texas     Date: 6/5/2009
Industry: Oil Well Services and Equipment     Law Firm: Vinson Elkins     Sector: Energy

WITH SECURITY AGREEMENT, Parties: holly energy partners lp , hep logistics gp  llc , holly corporation , holly logistic services  llc , lovington-artesia  llc , records where mortgages on real estate
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Exhibit 10.4

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)

BY

LOVINGTON-ARTESIA, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY,
AS GRANTOR

TO

JOHN N. PATTERSON,
AS TRUSTEE

FOR THE BENEFIT OF

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.

WITNESSETH :

ARTICLE 1

DEFINITIONS

1.1

 

Definitions . As used herein, the following terms shall have the following meanings:

(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.

ARTICLE 2

GRANT

2.1

 

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.

 

2.2

 

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.

ARTICLE 3

WARRANTIES AND REPRESENTATIONS

 

 

Grantor hereby unconditionally warrants and represents to Beneficiary as follows:

 

3.1

 

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.

 

3.2

 

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.

 

3.3

 

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

 

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.

ARTICLE 4

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.

ARTICLE 5

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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ARTICLE 6

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 .”

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 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).

 

7.2

 

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.

 

7.3

 

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.

 

7.4

 

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.

ARTICLE 8

REMEDIES

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 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:

(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.

8.2

 

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.

 

8.3

 

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.

 

8.4

 

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.

 

8.5

 

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.

8.6

 

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.

 

8.7

 

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.

 

8.8

 

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:

(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

(d) fourth, to Grantor.

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8.9

 

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

 

Limitations on Indemnifications .

(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.

ARTICLE 9

SECURITY AGREEMENT

9.1

 

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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