EXHIBIT 10.39
This instrument was prepared by ____________________ whose address
__________________
NORTH CAROLINA, TRANSYLVANIA COUNTY
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT, made and
entered into this 23rd day of May, 2003 by and between CHICKADEE PARTNERS, L.P.
(hereinafter called the Grantor), and Xxxxxxx X. Xxxxxxxx, Trustee of Tarrant
County, Texas (hereinafter called the Trustee), and FIRST SAVINGS BANK, A F.S.B.
(hereinafter called the Beneficiary);
RECITALS:
The Grantor is indebted to the Beneficiary in the sum of FOUR MILLION
AND NO/100 DOLLARS ($4,000,000.00) as evidenced by Grantor's note of even date
herewith (hereinafter referred to as the Note), which Note is due and payable in
full on or before the 23rd day of May, 2004.
The Grantor desires to secure (a) the payment of the Note with interest
and any renewals, modifications or extension thereof, in whole or in part, and
(b) the additional payments hereinafter agreed to be made, by a conveyance of
the lands and security interests hereinafter described and an assignment of the
rents hereinafter described.
NOW, THEREFORE, in consideration of the premises and for the purposes
aforesaid, and in further consideration of the sum of One Dollar ($1.00) paid to
the Grantor by the Trustee, receipt of which is hereby acknowledged, the Grantor
has given, granted bargained and sold, and by these presents does give, grant,
bargain, sell and convey unto the Trustee, his heirs, successors and assigns,
the following property (hereinafter referred to as the Mortgaged Premises):
(a) The real property lying and being in Transylvania County, North
Carolina and described in the legal description attached as Exhibit "A" hereto
and incorporated herein by reference (hereinafter referred to as the Land).
(b) All buildings, structures, additions and improvements now or
hereafter located in, on or about the Land, and all of the Grantor's building
materials intended for incorporation but not incorporated in the improvements to
the Land, and all furnishings, furniture, fixtures, machinery, equipment, tools,
and all other personal property or chattels used in connection with the
operation of such improvements, specifically including, without limitation,
appliances, gas and electric fixtures and systems, radiators, heaters, engines
and machinery, boilers, ranges, elevators and motors, plumbing and heating
fixtures and systems, carpeting and other floor covering, water heaters, air
conditioning apparatus and systems, window screens, awnings, storm sashes AND
ANY OTHER
DEED OF TRUST, SECURITY AGREEMENT
AND FINANCING STATEMENT - PAGE 1
PERSONAL PROPERTY COLLATERAL DESCRIBED IN ANY SCHEDULE OF ADDITIONAL PERSONAL
PROPERTY COLLATERAL ATTACHED HERETO, whenever acquired by the Grantor and now or
hereafter located in, upon, or under the Loan, together with all addition and
accessions thereto and replacements and proceeds thereof (hereinafter
collectively referred to as the Improvements);
(c) All rents, issues, profits, royalties, income and other benefits
derived from the Land and the Improvements (hereinafter given to the Grantor to
collect and apply such Rents, and the proceeds from any insurance or
condemnation award relating to the Land and the Improvements; and
(d) All easements, rights-of-way and rights used in connection with
the Land and the Improvements or as a means of access thereto, and all
tenements, hereditaments and appurtenances thereof and thereto.
TO HAVE AND TO HOLD the Mortgaged Premises unto the Trustee, his heirs,
successors and assigns, in fee simple forever, upon the trusts and for the uses
and purposes hereinafter set out;
And the Grantor covenants with the Trustee that the Grantor is seized of
the Mortgaged Premises in fee and has the right to convey the same in fee
simple; that the same are free and clear of all encumbrances, and that the
Grantor will warrant and defend the title to the same against the lawful claims
of all persons whomsoever.
THIS CONVEYANCE IS MADE UPON THIS SPECIAL TRUST, that if the Grantor
shall pay the Note in accordance with its terms, together with interest thereon,
and any renewals or extensions thereof in whole or in part, and shall comply
with all the covenants, terms and conditions of this Deed of Trust, then this
conveyance shall be null and void and may be canceled of record at the request
and at the cost of the Grantor. If, however, there shall be any default in any
of the terms, conditions or covenants contained in any loan document executed by
Grantor ir in connection with the Note and the Deed of Trust, or in the event of
actual or threatened demolition or injury or wast to the Mortgaged Premises
which may impair the value of the Mortgaged Premised, or if a receiver should be
appointed for, or a petition in a bankruptcy filed by or against the Grantor,
then and in any of such events, the Note shall, at the option of the
Beneficiary, become at ones due and payable, regardless of the maturity date
thereof, and on the application of the Beneficiary it shall be lawful for and
the duty of the Trustee, and her is hereby authorized and empowered to expose to
sale and to sell the Mortgaged Premises or any part thereof at a public auction
to the highest bidder for cash, after having first complied with all applicable
requirement of North Carolina law with respect to the exercise of powers of sale
contained in deeds of trust and upon such sale, the Trustee shall collect the
purchase proceeds and convey title to the portion of the Mortgaged Premises so
sold to the purchaser in fee simple. After retaining from the proceeds of such
sale a commission for his services as hereinafter provided and all expenses
incurred by him, including reasonable attorneys' fees for legal services
actually performed, the Trustee shall apply the residue of the proceeds, first
to the reimbursement of the Beneficiary for all sums expended or incurred by the
Beneficiary under this Deed of Trust or to establish, preserve or enforce this
Deed of Trust; second, to the payment of the
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Note and interest thereon; and the balance, if any, shall be paid to the Grantor
or other person lawfully entitled thereto. the Grantor agrees that in the event
of a sale hereunder, the Beneficiary shall have the right to bid at such sale
and shall have the right to credit the indebtedness secured hereby against the
purchase price. The Trustee shall have the right to designate the place of sale
in compliance with applicable law, and the sale shall be held at the place
designated by the notice of sale. The Trustee may require the successful bidder
at any sale. The bid may be rejected if the deposit immediately with the Trustee
cash or certified check in an amount up to twenty-five percent (25%) of the bid,
provided notice of such requirement is contained in the advertisement of the
sale. The bid may be rejected if the deposit is not immediately made. Such
deposit shall be refunded in case a resale is had because of an upset bid or if
the Trustee is unable to convey the portion of the Mortgaged Premises so sold to
the bidder because the power of sale has been terminated in accordance with
applicable law. If the purchaser fails to comply with its bid, the deposit shall
be applied to the expenses of the sale and the residue, if any, shall be applied
to the indebtedness secured hereby. In all other cases, the deposit shall be
applied to the purchase price. Pursuant to Section 25-9-501(4) of the North
Carolina General Statutes (or any amendment thereto), the Trustee is expressly
authorized and empowered to expose to sale and sell, together with the real
estate, any portion of the Mortgaged Premises which constitutes personal
property. If personal property is sold hereunder, it need not be at the place of
sale. The notice of sale, however, shall state the time and place where such
personal property may be inspected prior to sale. The Mortgaged Premises may be
sold in such parcels or lots as the Trustee may determine without regard to
principles of marshaling and the Mortgaged Premises may be sold at one sale or
in multiple sales as determined by the Trustee. The exercise of the power of
sale hereunder by the Trustee on one or more occasions shall not be deemed to
extinguish the power of sale, which power of sale shall continue in full force
and effect until all the Mortgaged Premises shall have been finally sold and
properly conveyed to the purchasers at the sales. The Trustee's commission shall
be five percent (5%) of the gross proceeds of the xxxx or five hundred dollars
($500.00), whichever is greater, for a completed foreclosure. In the event
foreclosure is commenced, but not completed, the Grantor shall pay all expenses
incurred by the Trustee, including reasonable attorneys' fees, and a partial
commission computed on five percent (5%) of the outstanding indebtedness or five
hundred dollars ($500.00), whichever is greater, in accordance with the
following schedule: one-fourth (1/4th) thereof before the Trustee issues a
notice of hearing on the right to foreclose; one-half (1/2)thereof after
issuance of said notice, three-fourths (3/4ths) thereof after such hearing; and
the greater of the full commission or minimum sum after the initial sale.
The terms and provisions of any loan agreement between the Grantor and
the Beneficiary relating to the loan evidences by the Note are incorporated
herein by reference and shall govern the disbursement and application of loan
funds. A default under any such loan agreement shall for all purposes constitute
a default hereunder and under the Note. In the event of any default under this
Deed of Trust, the Beneficiary may, at its option, defer application by it to
the Trustee to sell the Mortgaged Premises and may take action under and invoke
such other rights and remedies as may be provided in any such loan agreement or
in this Deed of Trust.
The Grantor covenants and agrees that Grantor will:
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1. Furnish to the Beneficiary without cost to the Beneficiary and
annual statement, in form and certified in a manner satisfactory to Beneficiary,
setting forth all income and expenses derived or incurred from the operation of
the Grantor's business conducted upon the Mortgaged Premises. Such annual
statements shall be furnished within one hundred twenty (120) days from the end
of the calendar or fiscal year of such operations.
2. Pay the indebtedness as hereinbefore provided.
3. Pay, when due, all real and personal property taxes and
assessments, general and special, and all other taxes and assessments of any
kind or nature whatsoever, including without limitation non-governmental levies
or assessments such as owner association dues or charges or fees and maintenance
charges, which are assessed or imposed upon the Mortgaged Premises, all of which
taxes and assessments are hereinafter referred to as Impositions; if at any time
after the date hereof, there shall be assessed or imposed (a) a tax or
assessment on the Mortgaged Premises in lieu of or in addition to the
Impositions payable by Grantor or (b) a license fee, tax or assessment imposed
on Beneficiary and measured by or based in whole or in part upon the amount of
the outstanding obligations secured hereby, Grantor shall pay and discharge all
such taxes, assessments or fees before they become delinquent, or, at the option
of Beneficiary, all obligations secured hereby with interest thereon shall
immediately become due and payable.
4. Keep the buildings now or hereafter on the Mortgaged Premises
insured against loss and damage by fire, tornado and windstorm, and against such
other hazards as the Beneficiary may require, including rent loss or business
interruption, in amounts satisfactory to the Beneficiary which amounts shall at
not time be less than the total replacement cost of such buildings, plus an
amount sufficient to prevent any co-insurance liability of the owner of the
Mortgaged Premises or the Beneficiary, for the benefit of the Beneficiary, loss,
if any, to be made payable in the policy or policies of insurance to the
Beneficiary as its interest may appear, the loss payable clauses to be in such
form as the Beneficiary may require. All insurance shall be in companies
approved by the and the policies and renewals thereof shall, when issued, be
immediately delivered to the Beneficiary to be held by it; Grantor will pay all
premiums for such insurance when due and immediately deliver to the Beneficiary
official receipts therefor, and if the Grantor fails or refuses to keep the
Mortgaged Premises so insured the Beneficiary may obtain such insurance without
prejudice to its right to foreclose hereunder by reason of such default. In the
event of lose the Grantor will give immediate notice by mail to the Beneficiary
who may make proof of loss if not made promptly by the Grantor, and each
insurance company concerned is hereby authorized and directed to make payment
for such loss directly to the Beneficiary instead of the Grantor and the
Beneficiary jointly. The proceeds of any insurance, or any part thereof, may be
applied by the Beneficiary, at its option, either to the reduction of the
indebtedness hereby secured or o the restoration or repair of the property
damaged. The Beneficiary may, at its option, pay any such insurance premiums or
any Impositions against the Mortgaged Premises of which payment, amount and
validity thereof the official receipt shall be conclusive evidence and any
amounts so expended shall immediately become debts due by the
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Grantor, shall bear interest at the rate specified in the Note, and their
payment shall be secured by this Deed of Trust.
5. Keep the Mortgaged Premises in as good order, repair and
condition as they are now, reasonable wear and tear excepted; provided however,
that if this Deed of Trust secures a construction loan, the provisions of this
paragraph shall apply to the Mortgaged Premises from and after completion of
construction.
6. Not commit or permit any waste.
7. Furnish to the Beneficiary within one hundred and twenty (120)
days of the end of each fiscal year the financial statements (in form
satisfactory to the Beneficiary) of the Grantor and of each guarantor or
endorser, if any, of the indebtedness hereby secured.
8. Not sell, convey, transfer or encumber the Mortgaged Premises,
or any part thereof or interest therein, legal or equitable, without the prior
written consent of the Beneficiary; provided, however, that Grantor may dispose
of, free and clear of the security interest granted herein and the lien hereof,
any personal property or fixtures which , in the reasonable judgement of
Grantor, have become obsolete or not for use or which are no longer useful
Grantor's operation, in the condition that Grantor shall replace such personal
property or fixtures by, or substitute for the same, other personal property or
fixtures (not necessarily of the same character) owned by Grantor, which shall
(a) be of at least equal value to the personal property or fixtures disposed of
and (b) perform a function or serve a purpose of the same as, similar to or
related to that of the personal property or fixtures disposed of. Any such
replacement personal property or fixtures shall forthwith, without further
action, become subject to the security interest granted in, and the lien created
by, this Deed of Trust, and such security interest is hereby granted by Grantor.
Beneficiary's consent to any conveyance or encumbrance may be conditioned upon
an increase in the interest rate specified in the Note, an extension or
curtailment of the maturity of the Note, or other modification of the Note or
this Deed of Trust. For purposes of this paragraph 8, a change of ownership of
general partnership interests in the Grantor or any guarantor (if Grantor or any
guarantor is a partnership or joint venture) or a material change in the
structure of the Grantor or any guarantor (if the Grantor or any guarantor is a
corporation), including, without limitation, a change in principal stockholders
or their respective interests, shall be considered a conveyance or transfer of
the Mortgaged Premises.
Grantor represents, warrants and agrees that (a) no Hazardous Material
(as hereinafter defined) has been used or placed on the Mortgaged Premises in
violation of any applicable Environmental Laws (as hereinafter defined); (b)no
notice has been received with regard to any hazardous Material on the Mortgaged
Premises; (c) the Mortgaged Premises are presently in compliance with all
Environmental Laws; (d)no action, investigation or proceeding is pending or to
Grantor's knowledge threatened which seeks to enforce any right or remedy
against Grantor or the Mortgaged Premises under any Environmental Law; (e)
Grantor shall permit no installation or placement of Hazardous Material on the
Mortgaged Premises in violation of Environmental laws; (f) Grantor shall permit
no release of Hazardous Material onto or from the Mortgaged Premises; (g)
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Grantor shall cause the Mortgaged Premises to comply with applicable
Environmental Laws and shall keep the Mortgaged Premises free and clear of any
liens imposed pursuant to any applicable Environmental Laws; (h) all licenses,
permits and other governmental or regulatory actions necessary for the Mortgaged
Premises to comply with Environmental Laws (the "Permits") shall be obtained and
maintained and Grantor shall assume compliance therewith; and (i) Grantor shall
give the Beneficiary prompt written notice if Grantor receives any notice with
regard to Hazardous Material on, from or affecting the Mortgaged Premises and
shall conduct and completer all investigations and all cleanup actions necessary
to remove, in accordance with applicable Environmental Laws, such Hazardous
Material from the Mortgaged premises. Grantor shall indemnify and hold harmless
the Beneficiary from and against all losses, expenses (including, without
limitation, attorneys' fees) and claim of every kind suffered by or asserted
against Beneficiary as a direct or indirect result of (a) the presence on or
release from the Mortgaged Premises of any Hazardous Material, whether or not
cause by Grantor, (b) the violation of any Environmental Laws applicable to the
Mortgaged Premises, whether or not caused by Grantor; (c) the failure by Grantor
to comply fully with the terms and provisions of this paragraph, or (d) any
warrant or representation made by Grantor in this paragraph being false or
untrue in any material respect. For purposes of the Deed of Trust, "Hazardous
Material" Means polychlorinated biphenyls, petroleum, flammable explosive,
radioactive materials, asbestos and any hazardous, toxic or dangerous waste,
substance or material defined as such in (for purposes of ) the Environmental
Laws or listed as such by the Environmental Protection Agency. "Environmental
Laws" means any current or future governmental law, regulation or ruling
applicable to environmental conditions on, under or about the Mortgaged Premises
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, the Resource Conservation and Recovery Act, The
Toxic Substances Control Act and the Clean Water Act. Grantor's obligations
under this paragraph shall survive a foreclosure of or exercise of power of sale
under this Deed of Trust, a delivery of a deed in lieu of foreclosure, and a
cancellation or termination of record of this Deed of Trust.
Any Grantor who executes this Deed of Trust but does not execute the
Note has executed this Deed of Trust only to subject whatever interest, if any,
such Grantor has or may hereafter have in the Mortgaged Premises to the lien of
the Deed of Trust, has no personal liability on the Note or under this Deed of
Trust (nothing herein limits or affects such Grantor's liability to the
Beneficiary under any separate guaranty or any other instrument), and agrees
that the Beneficiary and any other Grantor hereunder may extend, modify forbear,
or make any other accommodations with regard to the terms of this Deed of Trust
or the Note without such Grantor's consent and without releasing such Grantor
hereunder or modifying or affecting the Deed of Trust as to such Grantor's
interest in the Mortgaged Premises.
As further security for the payment of the Note and for the faithful
performance of all the covenants, agreements, terms and provisions of this Deed
of Trust Grantor hereby sells, transfers and assigns unto Beneficiary all the
right, title and interest of the Grantor in and to the Rents, and to that end
Grantor hereby assigns and sets over unto the said Beneficiary all leases of the
Mortgaged Remises now made, executed or delivered, whether written or verbal, or
to be hereafter made, be the same written or verbal (such leased are hereinafter
referred to individually and collectively as
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Tenants' Leases), and Grantor does hereby authorize and empower the Beneficiary
to collect the Rents, as they shall become due, and does hereby direct each and
all of the tenants of the Mortgaged Premises to pay the Rents, as they may now
be due or shall hereafter become due to the Beneficiary, upon demand for payment
thereof by Beneficiary; it being understood and agreed, however, hat no such
demand shall be made unless and until there has been a default in the payment of
the indebtedness secure hereby or in the faithful performance of all the
covenants, agreement, terms and provisions of this Deed of Trust or the Note;
and until such demand is made, Grantor is authorized to collect or continue
collecting the Rents; but that such privilege to collect or continue collecting,
as aforesaid, by the Grantor shall not operate to permit the collection of any
Rents more than (30) days in advance of the date same are due under the terms
and provisions of the Tenant's Leases.
Grantor covenants and agrees: (i) that Grantor will promptly and fully
keep, perform and comply with all the terms, provisions, covenants, conditions
and agreements imposed upon or assumed by Grantor as Landlord (or similar
designation) under the Tenants' Leases; and (ii) that Grantor will not do,
permit anything to be done, or omit or refrain from doing anything, the doing or
omission of which will give any tenant a right to terminate any of the Tenants'
Leases.
Any default in any of the terms, conditions, covenants or agreements
contained in any separate assignment of Grantor's interest in leases given
additional security for the indebtedness secured hereby shall constitute an
event of default under this Deed of Trust.
If Grantor shall, in any manner, fail in any of the above covenants and
agreements contained in this Deed of Trust, Beneficiary may (bu shall not be
obligated to) take any action Beneficiary deems necessary or desirable to
prevent or cure any default or failure by Grantor in the performance of or
compliance with any of Grantor's covenants or obligations hereunder. Beneficiary
shall have the right to enter upon the Mortgaged Premises to such extent and as
often as Beneficiary, in its sole discretion, deems necessary or desirable in
order to prevent or cure any such default by Grantor. In addition, if any legal
proceeding (such as bankruptcy, condemnation, forfeiture or other legal or
regulatory proceeding) that may affect the Beneficiary's rights or interests in
the Mortgaged Premises (or any part thereof) is instituted or brought, the
Beneficiary may do and pay for that which is necessary or desirable to protect
or preserve such right or interests (including, without limitation, the
employment of an attorney or other professional(s), Beneficiary may expend such
sums of money as Beneficiary, in its sole discretion, deems necessary for any
such purpose, and Grantor hereby agrees to pay to Beneficiary, immediately upon
demand, all sums so expended by Beneficiary, together with interest thereon form
the date of each such payment at the rate provided for in the Note. All sums so
expended by Beneficiary, and the interest thereon, shall be added to and secured
by the lien of this Deed of Trust.
Upon the condemnation of the Mortgaged Premises or any part hereof, this
Deed of Trust shall become a lien, charge and encumbrance upon the proceeds or
award realized a result of any such proceeding or of any settlement or payment
made in lieu of any such proceeding. Grantor hereby grants to the Beneficiary a
security interest in any proceeds or award paid pursuant to any condemnation
proceeding or pursuant to any settlement of any proceeding in lieu of any such
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proceeding and hereby agrees to execute such further assignments of such
proceeds and awards as Beneficiary may require. Grantor further covenants and
agrees that Beneficiary may (and is hereby authorized and empowered but not
required to) collect and receive any such proceeds or award and, if received by
Grantor, Grantor shall pay over and deliver immediately to the Beneficiary all
condemnation awards or proceeds to be held by the Beneficiary in trust and
applied pursuant to the terms of paragraph (a) and (b) as follows:
(a) In the event the entire Mortgaged Premises shall be take by
condemnation or in settlement of any threat of condemnation, the amount of any
such award shall be paid over to the Beneficiary and applied in payment in whole
or in part of the indebtedness secured hereby, notwithstanding that the same may
not be due and payable, and any excess shall be delivered to the arty or parties
legally entitled thereto. In the event of a partial taking of the Mortgaged
Premises, the amount of any award as determined by the commissioners, the jury
or the judge to be necessary to prevent impairment of the security of this Deed
of Trust shall be set aside, withheld or aid over to the Beneficiary and applied
to the indebtedness secured hereby, notwithstanding that the same may not be due
and payable, and the excess of such award or proceeds shall be delivered to
Grantor or other party or parties legally entitled thereto. Upon any partial
taking of the Mortgaged Premises, Grantor covenants with the Beneficiary to
restore the Mortgaged Premises as near as possible to the condition thereof
immediately prior to such taking and to apply Grantor's portion of any award
paid in such proceeding together with any other necessary funds to completely
and fully pay for the costs of restoration. Any amounts applied to the principal
of the Note shall be applied to principal last maturing thereon.
(b) Notwithstanding any contrary provision of this Deed of Trust,
(i) upon condemnation of the entire Mortgaged Premises, or (ii) if it shall at
any time be determined that N.C. Gen. Stat. Sec. 40A-68 shall for any reason be
unenforceable or inapplicable to this Deed of Trust, upon partial condemnation
of the Mortgaged Premises, the entire unpaid balance of the Note shall, at the
option of the Beneficiary, at once become due and payable, whereupon the amount
of any such award shall be aid over to the Beneficiary and applied in accordance
with the first sentence of subparagraph (a) of this paragraph.
The Beneficiary shall have the right to inspect the Mortgage Premises at
all reasonable times, and access thereto shall be permitted for that purpose to
the Beneficiary or its authorized agents or representatives.
The Beneficiary shall have the right, after default in any of the terms,
covenants or agreements herein contained, or contained in the Note, to the
appointment of a receiver, without notice to the Grantor or any other party, to
collect the Rents from the Mortgaged Premises without notice to the Grantor (the
Grantor hereby waiving any right to such notice) and without consideration of
the value of the Mortgaged Premises or the solvency of any person liable for the
payment of the amounts then owing, and all amounts collected by the receiver
shall, after expenses of the receivership, be applied to the payment of the
indebtedness hereby secured , and the Beneficiary, at its option, in lieu of an
appointment of a receiver, shall have the right to do the same. If such
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receiver should be appointed, or if there should be a sale of the Mortgaged
Premises, as provided above, the Grantor, or any person in possession of the
Mortgaged Premises thereunder, as tenant or otherwise, shall become a tenant at
will of the receiver or of the purchaser and may be removed by a writ of
ejectment or other lawful remedy.
No delay or forbearance by the Beneficiary in exercising any or all of
its rights hereunder or tights otherwise afforded by law, shall operate as a
waiver thereof or preclude the exercise thereof during the continuance of any
default as set forth herein or in the event of any subsequent default hereunder,
and all such rights shall be cumulative. In case the Beneficiary or the Trustee
voluntarily or otherwise shall become a party to any suit or legal proceeding to
protect the Mortgaged Premises or to protect the lien of this Deed of Trust, the
Trustee and the Beneficiary shall be saved harmless and shall be reimbursed by
the Grantor for any amounts paid, including all reasonable costs, charges and
attorneys' fees incurred in any such suit or proceeding, which obligations shall
be secured by the Deed of Trust.
Grantor hereby waives any rights or remedies on account of any
extensions of time, releases granted or other dealings between Beneficiary and
any subsequent owner of the Mortgaged Premises herein conveyed or pledged as
said activities are contemplated or otherwise addressed in Section 45-45.1 of
the North Carolina General Statutes or any similar or subsequent law. The
foregoing waiver shall not be construed as affecting or otherwise amending the
covenants and agreements of Grantor in Paragraph 8 hereof.
The parties hereto shall in no event be deemed to have contracted for a
greater rate of interest that the maximum rate permitted by law. Should a
greater amount be collected, it shall be construed as a mutual mistake of the
parties and the excess shall be returned to the party paying same.
The Grantor, in order to more fully protect the security of this Deed of
Trust, agrees that in addition to the monthly payments of principal, and
interest under the terms of the Note, Grantor will, upon the request of the
Beneficiary, pay on the first day of each month, or on the due date of monthly
payments of principal, to the Beneficiary or to its duly authorized agent a sum
equal to one-twelfth of the known or estimated (by the Beneficiary) yearly
taxes, assessments and insurance premiums on or against the Mortgaged Premises.
The Beneficiary shall hold such payments (and Grantor does hereby expressly
agree that Beneficiary shall be under no obligation to pay interest thereon) and
shall apply the same to the payment of taxes, assessments and insurance premiums
as and when due. If the total of such monthly payments shall exceed Th amount
needed, the excess shall be held for future needs; but, should such monthly
payments at any time fail to provide sufficient funds to pay taxes, assessments
and insurance premiums when due, then the Grantor shall, upon demand, pay to the
Beneficiary the amount necessary to cover the deficiency. When the Grantor shall
have paid the Note, the Beneficiary shall refund to the Grantor or other person
lawfully entitled thereto any excess funds accumulated hereunder. In the event
of a foreclosure sale of the Mortgaged Premises, the Beneficiary may apply any
balance remaining of the funds accumulated hereunder. In the event of a
foreclosure sale of the Mortgaged Premises, the Beneficiary may apply any
balance remaining of the funds accumulated for the above purposes to the payment
of the Note.
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The Beneficiary shall at any time have the irrevocable right to remove
the Trustee herein named without notice or cause and to appoint his successor by
an instrument in writing, duly acknowledged, in such form as to entitle such
written instrument to record in this State, and in the event of the death or
resignation of the Trustee herein named, the Beneficiary shall have the right to
appoint his successor by such written instrument. Any Trustee so appointed shall
be vested with the title to the Mortgaged Premises, and shall possess all the
powers, duties and obligations herein conferred on the Trustee in the same
manner and to the same extent as though her were named herein as Trustee.
All the terms and conditions of the commitment, if any, upon which the
loan hereby secured was predicated and any amendments thereto are incorporated
by this reference and made a part hereof and should Grantor default with respect
to any term or provision thereof, such default shall constitute a default
hereunder and under the Note.
This Deed of Trust shall constitute a security agreement pursuant to the
Uniform Commercial Code for any items constituting a part of the Mortgaged
Premises which, under applicable law, may be subjected to a security interest
pursuant to the Uniform Commercia Code, and Grantor hereby grants Beneficiary a
security interest in such items. Grantor agrees that Beneficiary may file this
Deed of Trust, or a reproduction thereof, in the real estate records or other
appropriate index, as a financing statement for any of such items including,
without limitation, those items which are, or are to become fixtures with
respect to the Land. In addition, Grantor agrees to Executed an deliver to
Beneficiary, upon Beneficiary's request, any financing statements, as well as
extensions, renewals and amendments thereof, as Beneficiary may require to
perfect a security interest with respect to such items. Grantor shall ay all
costs of filing such financing statements and any extensions, renewals,
amendments and releases thereof. Without the prior written consent of the
Beneficiary, Grantor shall not create or suffer to be created pursuant to the
Uniform Commercial Code any other security interest in such item, including
replacements and addition thereto. Upon Grantor's breach of any covenant or
agreement of Grantor contained herein, Beneficiary shall have the remedies of a
secured party under the Uniform Commercial Code. In exercising any of said
remedies, Beneficiary may proceed against the items of real property and any
items of personal property specified above as part of the Mortgaged Premises
separately or together and in any order whatsoever, without in any way affecting
the availability of Beneficiary's remedies under the Uniform Commercia Code or
the remedies provided herein. THE COLLATERAL IS OR INCLUDES FIXTURES.
The covenants, terms and conditions herein contained shall bind, and the
benefits and powers shall inure to the respective heirs, executors,
administrators, successors and assigns of the parties hereto. Whenever used
herein, the singular number shall include the plural, the plural the singular,
and the term "Beneficiary" shall include any payee of the indebtedness hereby
secured and any transferee or assignee thereof, whether by operation of law or
otherwise.
THIS DEED OF TRUST SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS, EXCEPT AS REQUIRED BY
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MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE SECURITY INTEREST CREATED HEREBY, OR REMEDIES HEREUNDER, IN
RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF TEXAS.
All notices required to be given under this Deed of Trust shall be sent
by certified or registered mail, return receipt requested, and addressed as
follows:
(a) If intended for Grantor:
Chickadee Partners, L.P.
000 X. Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxx
(b) If intended for Beneficiary:
First Savings Bank, A F.S.B.
000 X. Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Either Grantor or Beneficiary may change the person and address to which
notices shall be given hereunder by giving written notice of such change in the
manner set forth above.
Beneficiary shall have the continuing, irrevocable right and power, from
time to time, without notice to Grantor and without specifying any reason
therefor, to remove the Trustee maned herein and any successor Trustee and to
appoint a substitute Trustee by filing for record in the county in which the
Mortgaged Premises is located an instrument duly acknowledged appointing such
substitute Trustee, and the substitute Trustee shall thereupon become the
successor to the tile to the Mortgaged Premises and the same shall be vested in
him in trust for the objects and purposes set forth in this Deed of Trust as if
such substitute Trustee had originally been named Trustee herein with all the
powers, duties and obligations conferred upon Trustee in this Deed of Trust.
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IN WITNESS THEREOF, the Grantor has caused this Deed of Trust to be
executed under seal the day and year first above written.
GRANTOR:
CHICKADEE PARTNERS, L.P.
BY: BOSQUE-CHICKADEE MANAGEMENT COMPANY, LLC
General Partner
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx, President
STATE OF TEXAS )
)
COUNTY OF TARRANT )
BEFORE ME, the undersigned authority, personally appeared Xxxxxxx X.
Xxxxx, President of Bosque-Chickadee Management Company, LLC, General Partner of
Chickadee Partners, L.P., a Texas limited partnership, on behalf of said
partnership.
/s/ Notary Public
--------------------------------
Notary Public
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EXHIBIT "A"
Being all of Xxx 00 xx Xxxxx X of the subdivision of a portion of the property
of Lake Toxaway Company as shown by a plat thereof recorded in Plat File 8,
Slide 354, Records of Plats for Transylvania County, North Carolina.
Subject to all matters shown on the recorded plat hereinabove referred to and to
restrictive and protective covenants and easements set out in a deed recorded in
Deed Book 195, Page 73, Transylvania County Registry.
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