Exhibit 4.18
Instrument Prepared
by
Record and Return to
LeClairRyan
10 S. Jefferson Street, Suite 1800
Roanoke, VA 24011
Tax Map Nos. 9688.05-18-2376.000 &
9688.05-28-1550.000
CORRECTED DEED OF TRUST, SECURITY
AGREEMENT AND FIXTURE FILING
(COLLATERAL INCLUDES
FIXTURES)
THIS DEED OF TRUST, SECURITY
AGREEMENT AND FIXTURE FILING (this “Deed of Trust”),
made this 30th day of May, 2008, by and among SUPERIOR MODULAR
PRODUCTS INCORPORATED , a Delaware corporation (hereinafter
referred to as the “Grantor”); LECLAIRRYAN , a
Virginia professional corporation, whose business address is 10
South Jefferson, Suite 1800, Roanoke, Virginia 24011 (hereinafter
referred to as the “Trustee”); and VALLEY BANK,
a Virginia banking corporation (hereinafter referred to as the
“Beneficiary”).
This instrument corrects and amends
a previous Deed of Trust, Security Agreement and Fixture Filing
recorded in the Office of the Register of Deeds for Buncombe
County, North Carolina in Deed Book 4570 at Page
969-981.
The noteholder is Valley Bank,
having a mailing address of: 36 W. Church Ave. S.W., Roanoke, VA
24011. The maximum principal amount secured hereby is
$17,000,000.00.
Grantor’s organizational
identification number: 2359916.
THIS INSTRUMENT IS ALSO A FIXTURE
FILING UNDER NORTH CAROLINA GENERAL STATUTES SECTION 25-9-502 AND
IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS AND IS ALSO
TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS UNDER THE NAMES
OF GRANTOR AS “DEBTOR” AND BENEFICIARY, AS
“SECURED PARTY”.
R E C I T A L S:
WHEREAS, the Grantor executed that
certain credit agreement dated of even date herewith, in the total
principal amount of SEVENTEEN MILLION AND 00/100 DOLLARS
($17,000,000.00), and made payable to the Beneficiary (the
“Agreement”).
WHEREAS, the Beneficiary has
requested the Grantor enter into this Deed of Trust to secure the
performance of Grantor’s obligations under the Agreement and
the Grantor has agreed to the request.
W I T N E S S E T H:
NOW THEREFORE, in consideration of
the loans evidenced by the Agreement, and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties agree as follows:
The Grantor does hereby grant and
convey, with covenants of general warranty, the property described
located at 33 Superior Way, Buncombe County, North Carolina, as is
more particularly described in Schedule A attached hereto and by
this reference made a part hereof, to Trustee, its successors and
assigns, in fee simple forever, upon the trust and for the uses and
purposes hereinafter set forth,
together with all buildings and
improvements now or hereafter constructed thereon; all the estate
and rights, if any, of the Grantor in and to all land lying in
public and private streets, roads, and alleyways abutting the
above-described property; all easements, rights-of-way, privileges,
and appurtenances now or hereafter belonging to or in any way
related to the above-described property; all fixtures, machinery,
equipment, building materials, and other personal property of every
nature whatsoever now or hereafter located in, or on, or used, or
intended to be used, in connection with the operation of the
above-described property, including, but without limitation,
heating, air conditioning, cooking, refrigerating, plumbing, and
electrical apparatus and equipment, boilers, engines, motors,
generating equipment, piping and plumbing fixtures, ventilating and
vacuum cleaning systems, fire extinguishing apparatus, gas and
electrical fixtures, elevators, escalators, partitions, mantels,
built-in mirrors, disposals, washers, dryers, window shades,
blinds, screens, storm sashes, storm doors, awnings, carpeting,
underpadding, drapes, plants and shrubbery, and furnishings, all of
which personal property, including replacements thereof and
additions thereto, shall be deemed part of the realty hereby
conveyed (and the Grantor hereby declares such personal property to
be part of said realty, whether attached thereto or not, and
subject to the lien hereby created); and all proceeds of the
conversion, whether voluntary or involuntary, of any of the
above-described property into cash or other liquid claims,
including, without limitation, all awards, payments or proceeds,
including interest thereon, and the right to receive same, which
may be made as a result of any casualty, any exercise of the right
of eminent domain or deed in lieu thereof, the alteration of the
grade of any street and any injury to or decrease in the value of
the above-described property, together with all costs and expenses
incurred by the Beneficiary, in connection with the collection of
such awards, payments, and proceeds, including, without limitation,
reasonable attorneys’ fees, all of the above-described real
and personal property being hereinafter referred to as the
“Property,”
IN TRUST to secure the Beneficiary
for (a) the payment of a certain indebtedness owed by Grantor
in the principal amount of SEVENTEEN MILLION AND 00/100 DOLLARS
($17,000,000.00), together with interest thereon subject to the
terms and conditions set forth in the Agreement, the terms of which
are incorporated herein by reference; (b) the payment of all
other sums, with interest thereon as provided herein, advanced in
accordance with the provisions hereof by the Beneficiary or the
Trustee for the protection of the lien and security interest of the
Beneficiary in and to the Property; (c) the payment of all
late charges, penalties, costs of collection, legal fees and other
sums which may become due and
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owing by the Grantor hereunder or under the
Agreement, and (d) the performance of the covenants and
agreements of the Grantor hereunder and under the Agreement. The
above-described indebtednesses are hereinafter called the
“Obligations.”
THIS CONVEYANCE IS MADE UPON THIS
SPECIAL TRUST, that if Grantor shall pay or perform all of the
Obligations in accordance with the terms of the Agreement and any
renewals, extensions or modifications thereof, and shall comply
with all of the covenants, terms and conditions set forth in the
Credit Agreement and this Deed of Trust, then this conveyance shall
be null and void and may be cancelled of record at the request and
cost of Grantor. But if at any time there shall occur an event of
default, as defined in the Agreement and/or this Deed of Trust,
then Beneficiary and Trustee shall be entitled to exercise the
remedies set forth in the Agreement and/or this Deed of
Trust.
The Grantor also hereby irrevocably
assigns and conveys unto the Beneficiary, and grants the
Beneficiary a security interest in, all leases now or hereafter
existing on any part of the Property and any guaranties thereof and
all rents from the Property to secure the payment of all
Obligations secured hereunder. The Grantor hereby irrevocably
appoints the Beneficiary as its attorney-in-fact to do all things
which the Grantor might otherwise do with respect to the Property
and the leases therein, including, without limitation, collecting
said rents with or without suit and applying the same, less
expenses of collection, to any of the obligations secured hereunder
in such manner as may be determined by the Beneficiary, or at the
option of the Beneficiary, holding the same as security for the
payment of all obligations secured hereunder, leasing, in the name
of the Grantor, the whole or any part of the Property which may
become vacant, and employing agents therefor and paying such agents
reasonable compensation for their services; provided, however, that
until there be a default under the terms of the Agreement or this
Deed of Trust, the Grantor may continue to collect and enjoy said
rents without accountability to the Beneficiary. The curing of any
default, however, shall not entitle the Grantor to again collect
said rents unless consent in writing is obtained by the
Beneficiary. The powers and rights granted in this paragraph shall
be in addition to the other remedies herein provided in the
“event of default” (hereinafter defined) and may be
exercised independently of or concurrently with any of the said
remedies. Nothing in the foregoing shall be construed to impose any
obligation upon the Beneficiary to exercise any power or right
granted in this paragraph or to assume any liability under any
lease of any part of the Property and no liability shall attach to
the Beneficiary for failure or inability to collect any rents under
any such lease. The Grantor covenants and warrants that (i) it
will comply with all terms and conditions of all leases now
existing or that may hereafter come into existence in respect of
the Property or any part thereof; (ii) it has not sold,
assigned, transferred, mortgaged, or pledged, and will not sell,
assign, transfer, mortgage, or pledge, without the
Beneficiary’s prior written consent, the rents, issues, or
profits from the Property and leases thereof to any firm, person,
or corporation other than the Beneficiary; and (iii) upon
request of the Beneficiary, it will execute and deliver to the
Beneficiary such other instruments or documents reasonably
requested by the Beneficiary for the purpose of securing or
exercising its rights herein and it will provide the Beneficiary
with true copies or originals of such leases and all amendments,
supplements, renewals, or correspondence related
thereto.
So long as no event of default
exists under this Deed of Trust, the Grantor shall remain in quiet
use, possession, and management of the Property, and in the
enjoyment of the income, revenue, and profits therefrom.
In addition to the right to require
the Trustee to sell for a breach hereof, the Beneficiary shall also
have the cumulative right of collecting said indebtedness by suit
in equity or action at law, and/or by requiring the Trustee to take
possession of and rent the property, either pending a sale or until
the amount secured herein shall have been paid, but no liability
shall attach to Trustee for failure so to do. Rents collected by
the Trustee shall be applied as the proceeds of sale are to be
applied.
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So long as any part of the
Obligations hereby secured remains unpaid, the Grantor, in addition
to and not in limitation of the foregoing covenants, agrees as
follows:
1. Insurance . The
Grantor will maintain fire insurance with extended coverage in the
amount of the full replacement cost of the improvements on the
Property, and such other insurance as the Beneficiary may from time
to time require, with such insurance companies as are acceptable to
the Beneficiary, with loss payable to the Beneficiary, without
contribution; and will deliver to the Beneficiary the original
policy or policies, and, at least ten (10) days before the
expiration of any policy, the renewal thereof. In the event the
Grantor fails to maintain the required coverage, the Beneficiary
shall have the right, but not the obligation, to effect such
insurance coverage, pay the premium thereon and the money so paid,
with interest thereon at ten percent (10%) per annum, or if
lower, the maximum rate allowable by law, shall become part of the
Obligations secured hereby. Any insurance proceeds shall be applied
to the payment of the indebtedness hereby secured (but without any
prepayment penalty) except that if, pursuant to the provisions of
the next paragraph, the Beneficiary directs the Grantor to restore
the damaged portion of the Property, then, to the extent necessary,
such proceeds shall (but only to the extent necessary) be applied
to the cost of such restoration, and the Beneficiary may, without
paying interest thereon, retain all or any part thereof until the
Property has been restored to the satisfaction of the
Beneficiary.
2. Preservation and
Maintenance of Property . The Grantor will keep the
Property, including additions and improvements hereafter acquired,
in good order and repair, including the making of such replacements
as may be necessary for that purpose and, if the Beneficiary so
directs, the prompt restoration of any part of the Property which
may be damaged by fire or other casualty, irrespective of the
availability of adequate insurance proceeds for that
purpose.
3. Nuisances . The
Grantor will not permit or suffer any nuisance to exist or unlawful
activity to take place upon the Property or any part
thereof.
4. Further Assurances
. The Grantor will execute, or cause to be executed, such further
assurances of title to the Property, and will take, and cause to be
taken, such steps, including legal proceedings, as may at any time
appear to the Trustee, or to the Beneficiary, to be desirable to
perfect the title to the Property in the Trustee.
5. Books and Records .
The Grantor will keep and maintain at its principal place of
business complete and accurate books and records of its earnings
and expenses of the Property and copies of all written contracts,
leases, and other instruments which affect the Property. Such
books, records, contracts, leases, and other instruments shall be
subject to examination and inspection at any reasonable time by the
Beneficiary and upon default shall be delivered to the Beneficiary
at the Beneficiary’s request.
6. Notice of Suits and
Proceedings . The Grantor will immediately notify the
Beneficiary by registered or certified mail, return receipt
requested, of any taking or condemnation, or any threatened or
pending proceedings for the taking or condemnation, of any part of
the Property under any power of eminent domain; and in the event
that title to, or possession of, the Property or any portion
thereof, is taken or condemned under any power of eminent domain,
then the Grantor will (and hereby does) assign, and will forthwith
upon receipt pay over, to the Beneficiary the proceeds and
consideration resulting from taking or condemnation, not to exceed
the unpaid balance of the Obligations secured by this Deed of
Trust, said proceeds so paid to be applied, without repayment
premium, to the indebtedness secured hereby.
7. Transfer of Property or
Controlling Interest in Grantor . The Grantor will not,
without the prior written consent of the Beneficiary, lease,
bargain, sell, transfer, assign, or convey the Property, or any
portion thereof, or any legal or equitable interest therein, other
than leases in the ordinary course. If the Grantor is not a natural
person, then the bargain, sale, transfer, or assignment of all or
a
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controlling interest portion of the voting
stock, membership or partnership interests, or other equity of the
Grantor (including, without limitation, transfers resulting from
mergers, consolidations, or liquidations, and whether in one or a
number of transactions) without the prior written consent of the
Beneficiary shall be deemed to be in contravention of the
provisions of the first sentence of this Paragraph 7.
NOTICE - THE DEBT SECURED HEREBY
IS SUBJECT TO CALL IN FULL OR THE TERMS THEREOF BEING MODIFIED IN
THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY
CONVEYED.
8. Protection of the
Beneficiary’s Security . In the event the Grantor
fails to perform any of its covenants or agreements contained in
the Agreement or this Deed of Trust, or any action or proceeding is
commenced or threatened which affects the Property or title thereto
or the interest of the Trustee or the Beneficiary therein, then, in
any of such events, the Beneficiary may take such action as the
Beneficiary deems necessary, in its sole discretion, to protect its
interests, including, without limitation, (i) the employment
of attorneys and disbursement of legal fees, (ii) the
procurement of insurance as provided in Paragraph 1 hereof, and
(iii) if the Property is subject to another deed of trust or
lien, whether inferior or superior hereto, the curing of any
default in the performances of any of the terms and provisions
thereof, or if the indebtedness thereby secured is accelerated, the
purchase or payment in full of such indebtedness, all on such terms
as the Beneficiary shall, in its sole discretion, deem necessary or
advisable. Any amounts disbursed by the Beneficiary pursuant to the
provisions of this Paragraph 8 shall be added to, and deemed a part
of, the indebtedness secured hereby and shall bear interest from
the date of the disbursement thereof at ten percent (10%) per
annum, or if lower, the highest rate allowed by law, and shall,
together with the interest thereon, be repayable by the Grantor on
demand.
9. Security Agreement
.
(a) This Deed of Trust shall
constitute a security agreement with respect to all collateral of
Grantor now owned or hereinafter acquired and located upon the
Property. Grantor hereby grants to Beneficiary a security interest
in the collateral including, without limitation, all boilers, all
heating, air conditioning and ventilating components and systems,
all lighting, electrical power, plumbing, sprinkler and water
components and systems, all carpets, wall coverings, screens and
drapes, all mechanical and hydraulic components and systems and all
appliances (including stoves, ranges, refrigerators, disposals,
dishwashers, washers and dryers, trash compactors and similar
appliances) located on and used in connection with the operation or
maintenance of the Property.
(b) With respect to those items of
the collateral which are or are to become fixtures related to the
Property, this Deed of Trust shall constitute a financing statement
filed as a fixture filing. The lien upon fixtures granted herein
and perfected hereby shall be in addition to and not in lieu of any
lien upon fixtures acquired under real property law. Information
concerning the security interest granted herein may be obtained at
the addresses set forth in the Notices section hereof. For purposes
of the security interest herein granted, the address of Debtor
(Grantor) is set forth in the Notices section hereof and the
address of the Secured Party (Beneficiary) is also set forth in the
Notices section hereof.
10. Environmental
Protection . The Grantor covenants and agrees as
follows:
As used in this Deed of Trust:
“Hazardous Wastes” means all waste materials subject to
regulation under the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C
