EXHIBIT 4.4
EXECUTION COPY
Maximum principal indebtedness for This Instrument prepared by:
Tennessee recording tax purposes is Xxxxxxx Xxxxxxx & Xxxxxxxx
$5,500,000. 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
DEED OF TRUST, ASSIGNMENT OF LEASES
AND SECURITY AGREEMENT
THIS INSTRUMENT SECURES OBLIGATORY ADVANCE AND IS FOR
COMMERCIAL PURPOSES
THIS INSTRUMENT COVERS FIXTURES
THIS INSTRUMENT is executed as of the 31st day of March, 2003,
by TBC CORPORATION ("Grantor"), a Delaware corporation, for the benefit of
JPMORGAN CHASE BANK ("Beneficiary"), having an address at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, in its capacity as Collateral Agent pursuant to that
certain Intercreditor Agreement (the "Intercreditor Agreement") of even date
herewith among The Prudential Insurance Company of America ("PICA"), each
affiliate, managed account or fund of PICA a party thereto ("Prudential
Affiliates; and together with PICA and any of their respecetive successors and
assigns, "Prudential"), First Tennessee Bank National Association ("FTB") as
Issuing Bank and Swingline Lender and the other lenders signatory thereto (the
"Lenders"; and together with Prudential, the "Beneficiary Parties") evidencing
Grantor's conveyance to Xxxx X. Xxxxxxx III, Trustee ("Trustee"), a resident of
the State of Tennessee whose address is 000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx
00000.
WITNESSETH:
Concurrently herewith, Grantor is entering into that certain
Credit Agreement (the "Credit Agreement") with the Lenders, FTB as
Administrative Agent, Beneficiary, as Co-Administrative Agent, U.S. Bank
National Association ("USB"), as Documentation Agent, and Suntrust Bank
("Suntrust"), as Syndication Agent. The obligations to make Loans to the Grantor
and to issue letters of credit for the account of Grantor under the Credit
Agreement are conditioned on Grantor's execution of this Instrument in favor of
the Collateral Agent for the benefit of the Lenders, Prudential, the
Administrative Agent, USB, Suntrust and the Collateral Agent.
Grantor and PICA are parties to that certain Second Amended
and Restated Note Agreement, dated as of April 1, 2003 (as it may hereafter be
amended, modified, supplemented, refinanced or replaced from time to time, the
"Existing Note Agreement") which governs the terms of certain Series A Senior
Notes, Series B Senior Notes and Series C Senior Notes issued by Grantor to PICA
(as amended, supplemented or otherwise modified from time to time, the foregoing
collectively referred to as the "Existing Prudential Notes"). Grantor and
Prudential entered into a certain Note Purchase Agreement, dated as of April 1,
2003 (as it may hereafter be amended, modified, supplemented, refinanced or
replaced from time to time, the "Additional Note Agreement", and together with
the Existing Note Agreement, the "Note Agreements")
pursuant to which Grantor issued on the date hereof its Series D Variable Rate
Senior Notes due April 16, 2009 (as amended, modified, supplemented, refinanced
or replaced from time to time, the "Additional Prudential Notes", and together
with the Existing Prudential Notes, collectively, the "Prudential Notes").
Grantor has requested that PICA consent to the Borrower's execution of the
Credit Agreement, which consent is required under the Existing Note Agreement,
and PICA has agreed to provide such consent, provided, inter alia, that the
Grantors shall have executed and delivered this Instrument to the Collateral
Agent for the ratable benefit of the Beneficiary Parties. (The Note Agreements
and the Prudential Notes are hereinafter collectively referred to as the
"Prudential Documents").
NOW, THEREFORE, in consideration of TEN DOLLARS ($10.00),
PICA's consent to Grantor's execution of the Credit Agreement, the Lenders'
execution of the Credit Agreement, and other valuable consideration, the receipt
and sufficiency of which are acknowledged, Grantor does hereby grant, sell,
bargain and convey to Trustee, his successors and assigns, as trustee with power
of sale, that real estate described in Exhibit A attached hereto (the "Real
Estate"), which is incorporated herein by reference;
TOGETHER with all Grantor's present and future right, title,
interest, and claim to the Real Estate; and
TOGETHER with all present and future easements and other
appurtenances to the Real Estate, and with all present and future tenements,
emblements, and hereditaments, including all buildings, structures and other
improvements, minerals and mineral rights, flowers, shrubs, crops, trees and
timber; and
TOGETHER with all trade, domestic and ornamental fixtures now
or hereafter attached to the Real Estate, and all accessions and additions
thereto and replacements thereof, including, but not limited to, the following
items, which are hereby recognized by the parties to this Instrument as
fixtures: all heating, air-conditioning, freezing, lighting, laundry,
incinerating and power equipment; engines; pipes; pumps; tanks; motors;
conduits; switchboards; plumbing, lifting, cleaning, fire prevention, fire
extinguishing, refrigerating, ventilating and communications apparatus; boilers,
ranges, furnaces, oil burners and units thereof; appliances, air-cooling and
air-circulating apparatus; central vacuum cleaning systems; elevators;
escalators; shades; awnings, doors, screens; storm doors and windows; stoves;
refrigerators; attached cabinets and shelves; partitions; ducts; compressors;
rugs, carpets, tiling, linoleum, and other floor coverings; chandeliers and
other lighting fixtures; paneling, woodwork, molding, millwork, and other
decorative trimwork; ceiling tiles and panels; and draperies (the Real Estate
and all fixtures thereto are collectively referred to herein as the "Property");
TO HAVE AND TO HOLD the Property unto Trustee, his successors
and assigns forever in trust, to secure the payment of all debts, liabilities
and obligations of Grantor to any Beneficiary Party or Beneficiary Parties
existing from time to time pursuant to the Prudential Documents, the Credit
Agreement, or any of the "Loan Documents" (as defined in the Credit Agreement),
as any of such documents may be amended or restated from time to time, including
all such obligations of every nature, whether now existing or hereafter incurred
at any time or times, absolute or contingent, secured or unsecured, and any and
all renewals or extensions thereof or of any portion thereof, including without
limitation all principal, all interest, all
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prepayment premiums and breakage fees (if any), all fees, all late charges and
all penalties and all expenses of collection or enforcement or attempted
collection or enforcement thereof, including all reasonable fees and
disbursements of any Beneficiary Party's counsel in connection therewith,
whether within or apart from any legal action or proceeding (all such
indebtedness and obligations being herein called the "Secured Indebtedness").
Grantor warrants that Grantor is lawfully seized of the
Property and has good right to convey the same, and that Grantor will forever
warrant and defend the title thereto unto Trustee, his successors and assigns,
against the claims of all persons whomsoever, subject to the matters set forth
on Exhibit B hereto. Grantor further warrants that the Property is unencumbered
except as indicated on Exhibit B hereto.
GRANTOR FURTHER COVENANTS AND AGREES WITH TRUSTEE AND
BENEFICIARY AS FOLLOWS:
1. Security Agreement. Grantor hereby grants to
Beneficiary a security interest in all fixtures and personal property presently
or hereafter owned by grantor and used in the operation of the Real Estate,
including, but not limited to, all construction materials, and all accessions,
additions and replacements thereof (except that no security interest is granted
under this Paragraph or any other Paragraph hereof in household goods to secure
a consumer credit transaction) and all presently owned and hereafter acquired
contract rights, accounts and general intangibles pertaining to the Property
(including, without limitation, Grantor's rights under any maintenance or
management contract(s)), together with all products and proceeds of the
foregoing, including insurance proceeds (collectively the "Personalty"). Grantor
warrants that the Personalty is unencumbered except as disclosed in Exhibit B
hereto. Within five (5) days after request by Beneficiary, Grantor shall deliver
to Beneficiary a schedule of all Personalty then in existence. This Instrument
shall serve as a financing statement with respect to the Personalty. The
original of this Instrument or a copy hereof may be recorded by Beneficiary as a
financing statement in any appropriate public office, at Beneficiary's option
and at Grantor's expense. (The Property and the Personalty are collectively
referred to herein as the "Premises").
2. Taxes and Assessments; Annual Reports. Grantor shall
pay when due all taxes and assessments now existing or hereafter levied or
assessed upon the Premises. Grantor shall also pay when due all taxes and
assessments levied or assessed against Trustee, or the holder of any note or
other obligation which is part of the Secured Indebtedness, for or on account of
the Secured Indebtedness or the interest hereby created in the Premises. Grantor
shall, without demand, provide Beneficiary and/or Trustee with evidence of the
payment of all such taxes and assessments accrued over each year by March 31 of
the following year.
3. Insurance.
(a) Casualty and Liability Insurance. In
addition to any other requirements of the Credit Agreement or the Note
Agreements, Grantor shall keep the Premises insured for the benefit of
Beneficiary against "all risks of physical loss" (except earthquake, unless
Beneficiary specifically so requires and also including flood insurance, if
applicable) under a casualty insurance policy with the "replacement cost"
endorsement. Grantor shall also maintain comprehensive public liability
insurance on the Premises in an amount acceptable to
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Beneficiary. If Beneficiary requires, Grantor shall further obtain insurance for
loss of rents and for any other specified insurable contingency. All insurance
provided for herein shall be in form and substance satisfactory to, and issued
by insurance companies approved by, Beneficiary. All such casualty policies
shall name Beneficiary as insured mortgagee pursuant to a non-contribution
mortgagee clause satisfactory to Beneficiary, and all such liability insurance
policies shall name Beneficiary as an additional insured. All insurors must
agree in writing (by the policy provisions, endorsement or letter) to give
Beneficiary at least twenty (20) days' prior written notice before termination
or any reduction of amount or scope of coverage. Grantor hereby assigns to
Beneficiary, as further security for the payment of the Secured Indebtedness,
all policies of insurance which now or hereafter insure against any loss or
damage to the Premises; provided, however, Grantor shall not exercise any rights
with respect to the assignment of such policies unless a default hereunder has
occurred and is then continuing. Immediately upon the request of Beneficiary
during the continuance of a default hereunder, Grantor shall deliver such
original policies to Beneficiary. Grantor shall promptly give written notice to
Beneficiary of any material loss or damage to the Premises and will not adjust
or settle any such loss without the written consent of Beneficiary. If
Beneficiary, on account of any insurance on the Premises, receives any money for
loss or damage at a time when a default hereunder has occurred and is then
continuing, such amount may, at the option of Beneficiary, be retained and
applied by Beneficiary toward payment of the Secured Indebtedness, or be paid to
Grantor, wholly or in part, subject to such conditions as Beneficiary may
require. All other applications of insurance proceeds shall be governed by the
Credit Agreement. During the continuance of any default hereunder, Beneficiary
is hereby irrevocably appointed attorney-in-fact for Grantor to receive any sums
collected under insurance policies insuring the Premises, to endorse any drafts
or instruments received under such policies, and to make proof of loss for,
settle, and give binding acquittances for claims under such policies.
(b) Renewal Policies; Failure to Maintain
Insurance. Not less than thirty (30) days prior to the expiration date of each
policy of insurance required under this Instrument, Grantor shall deliver to
Beneficiary evidence of the renewal of such policy or policies. Beneficiary may
require that such evidence consist of the presentment of a renewal or
replacement certificate of insurance, in form and content acceptable to
Beneficiary, marked "premium paid." If Grantor fails to keep the Premises
insured as herein provided, Beneficiary may, at Beneficiary's option and without
notice to Grantor, obtain such insurance, or Beneficiary may obtain single
interest coverage insuring only Beneficiary's interest in the Premises. The cost
of any insurance so obtained shall be paid by Grantor.
(c) Default and Foreclosure. In the event of the
occurrence of any default, as defined in this Instrument, all right, title and
interest of Grantor in and to any insurance policies then in force, and
particularly to any existing claims thereunder, shall pass to Beneficiary.
Beneficiary may assign and transfer said policies or cancel and surrender the
same, in such manner as it may elect. In the event of a foreclosure under this
Instrument, or if a deed is executed in lieu of foreclosure hereunder, the
purchaser of the Premises shall succeed to all the remaining rights of Grantor
in and to all policies of insurance assigned to Beneficiary pursuant to this
Instrument.
4. Reserve for Assessments and Insurance. Upon demand by
Beneficiary so long as any default hereunder is then continuing, Grantor shall
furnish to Beneficiary an official
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statement of the amount of taxes, assessments, insurance premiums, rents, and
other charges to become due on the Premises over the succeeding year. Grantor
shall thereafter pay to Beneficiary, together with and in addition to any
payments of principal and interest payable under the terms of the Secured
Indebtedness, an amount reasonably sufficient (as estimated by Beneficiary) to
provide Beneficiary with funds to pay taxes, assessments, insurance premiums,
rents and other charges next due on the Premises so that Beneficiary will have
sufficient funds on hand to pay said charges thirty (30) days before the date on
which they become due. Beneficiary shall pay said charges to the extent of the
amount of the then unused credit therefor as and when they become severally due
and payable. An official receipt therefor shall be conclusive evidence of
payment and of the validity of such charges. Beneficiary may, at its option, pay
any of these charges when payable, either before or after they become past due,
without notice, or make advances therefor in excess of the then amount of credit
for said charges. The excess amount advanced shall be immediately due and
payable to Beneficiary and shall become part of the Secured Indebtedness.
Beneficiary may apply any funds held by it for payment of the above charges
toward any delinquent payments maturing or due under the terms of the Secured
Indebtedness. Beneficiary shall not be liable for any interest on any amount
paid to it as herein required, and the money so received may be held and
commingled with Beneficiary's own funds, pending payment or application thereof
as herein provided. Upon payment in full of the Secured Indebtedness, the amount
of any unused credit shall be paid to Grantor.
5. Flood Insurance. Grantor represents and certifies to
the Beneficiary that no part of the Premises lies within a "special flood hazard
area" as defined and specified by the United States Department of Housing and
Urban Development pursuant to the Flood Disaster Protection Act of 1973. In the
event the Beneficiary determines that the rules or regulations of the Federal
Reserve Board, the Comptroller of the Currency or any other applicable
governmental authority require that flood insurance coverage be obtained for the
Premises or any part thereof in order to comply with such rules or regulations
or with the Flood Disaster Protection Act of 1973 as then in effect, then
Grantor, upon receiving written notice from the Beneficiary of such
determination: (i) shall promptly purchase and pay the premiums for such flood
insurance policies as the Beneficiary deems required by such agency or agencies
so that the Beneficiary shall be deemed in compliance with the rules and
regulations of such agency or agencies and with the Flood Disaster Protection
Act of 1973 as then in effect; and (ii) shall deliver such policies to the
Beneficiary together with evidence satisfactory to the Beneficiary that the
premiums therefor have been paid. Such policies of flood insurance shall be in a
form satisfactory to the Beneficiary, shall name the Beneficiary as an insured
thereunder, shall provide that losses thereunder be payable to the Beneficiary
pursuant to such forms of loss payable clause as the Beneficiary may approve,
shall be for an amount at least equal to the indebtedness secured hereby or the
maximum limit of coverage made available with respect to the Premises under the
National Flood Insurance Act of 1968, as amended, whichever is less, and shall
be noncancellable as to the Beneficiary except upon thirty (30) days' prior
written notice given by the insurer to the Beneficiary. Within fifteen (15) days
prior to the expiration date of each such flood insurance policy, Grantor shall
deliver to the Beneficiary a renewal policy or endorsement together with
evidence satisfactory to the Beneficiary that the premium therefor has been
paid. Proceeds of any flood insurance policy shall be applied in the manner set
forth in paragraph (3) for the application of other insurance proceeds.
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6. Compliance with Laws; No Hazardous Waste. Grantor
represents, warrants and agrees that (a) no Hazardous Material (as hereinafter
defined) has been used or placed on the Premises in material violation of any
applicable Environmental Laws (as hereinafter defined); (b) no underground
storage tanks are located on the Premises; (c) no notice has been received with
regard to any Hazardous Material on the Premises; (d) the Premises are presently
in material compliance with all Environmental Laws; (e) 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 Premises under any
Environmental Law; (f) Grantor shall permit no installation or placement of
Hazardous Material on the Premises in material violation of Environmental Laws;
(g) Grantor shall permit no material release of Hazardous Material onto or from
the Premises; (h) Grantor shall cause the Premises to materially comply with
applicable Environmental Laws and shall keep the Premises free and clear of any
liens imposed pursuant to any applicable Environmental Laws; (i) all licenses,
permits, notices and other governmental or regulatory actions necessary for the
Premises to materially comply with Environmental Laws (the "Permits") shall be
obtained and maintained and Grantor shall assure material compliance therewith;
and (j) Grantor shall give the Beneficiary prompt written notice if Grantor
receives any notice with regard to Hazardous Material on, from or affecting the
Premises and shall conduct and complete all investigations and all cleanup
actions necessary to remove, in accordance with applicable Environmental Laws,
such Hazardous Material from the Premises. Grantor shall indemnify and hold
harmless the Beneficiary Parties from and against all losses, expenses
(including, without limitation, attorneys' fees) and claims of every kind
suffered by or asserted against any Beneficiary Party as a direct or indirect
result of (a) the presence on or release from the Premises of any Hazardous
Material, whether or not caused by Grantor, (b) the violation of any
Environmental Laws applicable to the 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 warranty or representation made by Grantor in this
paragraph being false or untrue in any material respect; provided, however,
Grantor shall not indemnify and hold harmless the Beneficiary Parties for any of
the foregoing events caused by the gross negligence or wilful misconduct of any
Beneficiary Party, or any of their respective agents, successors or assigns. For
purposes of this Instrument, "Hazardous Material" means polychlorinated
biphenyls, petroleum, flammable explosives, radioactive materials, asbestos and
any hazardous, toxic or dangerous waste, substance or material defined as such
in (or for the 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 Premises, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act, The Superfund Amendment and
Reauthorization Act of 1986, the Toxic Substances Control Act, the Clean Air
Act, the Clean Water Act or the Tennessee Hazardous Waste Management Act.
Grantor's obligations under this paragraph shall survive a foreclosure of or
exercise of power of sale under this Instrument or the delivery of a deed in
lieu of foreclosure. Beneficiary's agents and engineers shall be allowed access
to the Premises at any time for the purpose of conducting an environmental audit
of the Premises. The expense of any such audit conducted after default shall be
paid or reimbursed to Beneficiary by Grantor and shall become part of the
Secured Indebtedness, bearing interest as provided elsewhere herein.
7. No Archeological Encumbrances. Grantor warrants that
the Premises do not include any cemetery, Indian burial ground or village, or
any other matter of archeological
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significance that would require the notification or consent of any persons or
entity (including, without limitation, the Division of Archaeology of the
Tennessee Department of Conservation) in connection with any excavation or
construction thereon.
8. Maintenance of Premises. Grantor shall maintain the
Premises in good condition and repair. Grantor shall promptly repair, restore,
replace or rebuild any part of the Premises, now or hereafter encumbered by this
Instrument, which may incur any substantial damage. Without the prior written
consent of Beneficiary, there shall be no removal, demolition, or material
alteration of any part of the Premises, including, but not limited to, any
building, structure, parking lot, driveway, landscape scheme, timber or other
ground improvement, which would have a material adverse effect on the value of
the Premises. Grantor shall complete within a reasonable time and timely pay for
any building, structure or other improvement presently at any stage of the
process of construction on the Premises. Grantor shall not initiate, join in, or
consent to any change in any private restrictive covenant, zoning ordinance or
other public or private restrictions limiting or prescribing the uses which may
be made of the Premises or any part thereof, without the prior written approval
of Beneficiary. Trustee and/or Beneficiary and any persons authorized by Trustee
and/or Beneficiary shall have the right to enter and inspect the Premises at all
times both before and after default.
9. Impairment of Property Value by Public Authority.
Notwithstanding any taking of any of the Premises by eminent domain, alteration
of the grade of any street or other injury to, or decrease in value of, the
Premises by any public or quasi-public authority or corporation, Grantor shall
continue to pay all amounts that shall be or become due on the Secured
Indebtedness. Upon the occurrence and continuance of any default hereunder, any
compensation for any such taking or injury shall be payable only to Beneficiary,
and said award or payment may, at the option of Beneficiary, be retained and
applied by Beneficiary toward payment of the Secured Indebtedness, or be paid
over, wholly or in part, to Grantor, subject to such conditions as Beneficiary
may require. If, prior to the receipt by Beneficiary of such award or payment,
the Premises shall have been sold on foreclosure of this Instrument, Beneficiary
shall have the right to receive said award or payment to the extent of any
deficiency found to be due upon such sale, together with any expenses of
collecting said award or payment.
10. Assignment of Awards. As used herein, the term
"Award" shall include all amounts that Grantor may be entitled to receive as a
result of defects in or damage to the Premises, whether such amount is
determined by judgment, settlement, or otherwise. Grantor hereby assigns to
Beneficiary the right to receive all Awards during the continuance of a default
hereunder, to the extent that such awards do not exceed the outstanding Secured
Indebtedness at the time of the award. During the continuance of any default
hereunder, Beneficiary is hereby irrevocably appointed as Grantor's
attorney-in-fact for the receipt of Awards and the endorsement of any
instruments received in connection with an Award. During the continuance of any
default hereunder, Beneficiary may, at its option, apply such Awards or any part
thereof against the Secured Indebtedness, or pay the Awards, or that portion of
them not applied to the Secured Indebtedness, over to Grantor, subject to such
conditions as Beneficiary may require. Grantor shall notify Beneficiary of all
defects in or damage to the Premises materially affecting the value thereof, and
shall be included as a party plaintiff in all suits to collect damages as a
result of such defects or damage. No claims that may result in material Awards
may be settled without Beneficiary's written consent. During the continuance of
any default hereunder,
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Beneficiary is hereby irrevocably appointed as Grantor's attorney-in-fact to xxx
on or settle any claim that might result in an Award, but Beneficiary shall have
no duty to xxx on or settle any such claim.
11. Assignment of Leases. To secure the payment of the
Secured Indebtedness, Grantor hereby grants, transfers and assigns to
Beneficiary all of the right, title and interest of Grantor in and to any and
all present and future leases and licenses of the Premises (collectively the
"Leases"), together with all renewals, modifications or extensions thereof;
together with all rents, income and profits arising therefrom; together with all
options or other rights pertaining thereto; and together with all present or
future policies of lease insurance and guarantees, if any, of the obligations of
the lessee or licensee under any Lease. This assignment does not impair any
restriction on leasing, licensing or sale of the Premises provided elsewhere
herein. Additionally, this assignment shall not be construed as subordinating
Beneficiary's rights hereunder to any Lease.
12. No Other Encumbrances or Sale Without Consent.
Grantor shall not create or suffer to be created any lien or security interest
in any or all of the Premises, whether by mortgage, deed of trust, or otherwise,
without first obtaining the written consent of Beneficiary. Grantor shall not
directly or indirectly lease, transfer, sell, convey or mortgage any legal or
equitable interest in the Premises, or agree to do any of the foregoing, without
first obtaining the written consent of Beneficiary. Specifically prohibited
without written consent, but not to the limitation of the foregoing, are (a) the
granting of junior encumbrances on the Premises, (b) the transfer of any
interest in the Premises to produce a "wraparound" financing arrangement, or (c)
the transfer of any interest in the Premises whether or not accompanied by the
purported assumption by the grantee of Grantor's obligations under the Secured
Indebtedness.
13. Defense of Beneficiary's Interest. Grantor will
promptly cause to be removed all claims or liens that may hereafter arise
against any of the Premises, except as listed in Exhibit B hereto. If
Beneficiary, in its discretion, should deem it necessary to bring or defend any
action to exercise, protect or establish any of its rights hereunder, Grantor
agrees to participate in such action in good faith and to the extent requested
by Beneficiary. Grantor will pay Beneficiary's expenses of bringing or defending
such action, including reasonable attorneys' fees.
14. Further Assurances of Obligation and Title; Estoppel
Letters. Upon demand, Grantor shall execute and deliver to Beneficiary any
further instrument or instruments, including, but not limited to, deeds of
trust, security agreements, extensions of any liens created herein, financing
statements, assignments, and renewal and substitution notes, as to reaffirm, to
correct and to perfect the evidence of the obligation hereby secured, the legal
title of Trustee to the Premises, and the security interest arising under this
Instrument. During the continuance of any default hereunder, Grantor hereby
irrevocably appoints Beneficiary as Grantor's attorney-in-fact to execute any
documents necessary to perfect or extend Beneficiary's rights hereunder. Grantor
shall pay all fees and expenses incurred by Beneficiary in the filing of such
instruments. Within five (5) days after request made by Beneficiary, Grantor
shall certify by a writing, duly acknowledged, to Trustee and/or Beneficiary or
to any proposed assignee of this Instrument, the amount of principal and
interest then owing on the Secured Indebtedness and whether or not any
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offsets or defenses exist against the Secured Indebtedness, with a description
of the basis for any alleged offset or defense.
15. Expenses. Upon demand, Grantor will advance to
Beneficiary or, at Beneficiary's option, reimburse Beneficiary for, the
following expenses, which Beneficiary may incur without notice to Grantor:
(a) Taxes. All taxes that Beneficiary may be
required to pay because of the Secured Indebtedness or because of Beneficiary's
interest in any property securing the payment of the Secured Indebtedness,
except for taxes based upon the general income of Beneficiary.
(b) Administration. All expenses that
Beneficiary may incur in connection with the preparation, execution,
administration or enforcement of this Instrument or of any other document
pertaining to the Secured Indebtedness.
(c) Costs of Collection; Protection of
Collateral. All court costs and other costs of collecting any debt, overdraft or
other obligation included in the Secured Indebtedness, including compensation
for time spent by employees of Beneficiary, together with all costs of
preserving, insuring, preparing for sale (whether by improvement, repair or
otherwise), managing, maintaining or selling the Premises or any other
collateral securing the Secured Indebtedness, or of performing any of Grantor's
obligations under any Lease.
(d) Prior Encumbrances. All amounts that
Beneficiary may hereafter advance to prevent a default or foreclosure under any
deed of trust, mortgage, judicial lien, or other encumbrance that may be a lien
prior to that of this Instrument including, but not limited to, any and all
payments of principal, interest, escrow charges, late charges, attorneys' fees,
foreclosure publication costs, and other amounts that may be so paid by
Beneficiary.
(e) Litigation. All costs arising from any
litigation, investigation, or administrative proceeding (whether or not
Beneficiary is a party thereto) that Beneficiary may incur as a result of the
Secured Indebtedness or as a result of Beneficiary's association with Grantor,
including, but not limited to, expenses incurred by Beneficiary in connection
with a case or proceeding involving Grantor under any chapter of the Bankruptcy
Code or any successor statute thereto.
(f) Attorneys' Fees. Reasonable attorneys' fees
incurred in connection with any of the foregoing.
If Beneficiary pays any of the foregoing expenses, they shall become a part of
the Secured Indebtedness and shall bear interest at the lower of (i) the rate
which is two percent (2%) plus the rate applicable to ABR Loans as provided in
Section 2.12(a) of the Credit Agreement or (ii) the highest lawful rate. This
paragraph shall remain in full effect regardless of the full payment of the
Secured Indebtedness, the purported termination of this Instrument, the delivery
of the executed original of this Instrument to Grantor, or the content or
accuracy of any representation made by Grantor to Beneficiary; provided,
however, Beneficiary may terminate this paragraph by executing and delivering to
Grantor a written instrument of termination specifically referring to this
paragraph.
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16. Default Defined. The occurrence of any Event of
Default pursuant to the Credit Agreement or the Prudential Documents shall
constitute a default under this Instrument.
17. Remedies Upon Default. Upon default, Trustee and/or
Beneficiary (as indicated below) may, at their discretion and without any notice
to Grantor except as specified below, do any one or more of the following:
(a) Acceleration. Beneficiary may accelerate the
maturity of any and all debts and obligations included in the Secured
Indebtedness.
(b) Rights Under Uniform Commercial Code.
Beneficiary may exercise any or all rights it may have with respect to the
Personalty or Fixtures to the Real Property under the Uniform Commercial Code as
adopted in Tennessee (the "UCC"). Grantor agrees that the sale of any Personalty
pursuant to the UCC may be performed at public or private sale; that notice of
such a sale shall be deemed commercially reasonable if given five (5) days prior
to such sale; that Beneficiary may adjourn any public sale to a different time
or place by notice at the announced time and place but without further
advertisement or notice; that Beneficiary may sell the Personalty in such lots
as it may deem appropriate; and that any advertisement of such a sale shall be
sufficiently descriptive of the Personalty if it describes the same by item or
type. In addition to the remedies elsewhere provided herein, Beneficiary may,
upon default, at its election, sell some or all of the Personalty together with
the Property by complying with the provisions hereof and applicable law
regarding the sale of the Property, in which case the provisions of applicable
real estate law, rather than the UCC, shall control as to all aspects of the
sale, and the sale shall be conclusively determined to be commercially
reasonable if conducted in accordance with such provisions. Any sale of the
Property pursuant to the power of sale provided for herein shall be presumed to
include all fixtures then included with the Property unless Beneficiary
advertises to the contrary.
(c) Performance of Grantor's Obligations Under
Leases. Beneficiary may, but shall not be obligated to, perform or have
performed any or all obligations of Grantor under the Leases; provided, however,
Beneficiary's performance of such obligations shall not be deemed an assumption
by it of Grantor's obligations under any Lease, unless Beneficiary specifically
so agrees with any given Lessee in writing.
(d) Possession. Beneficiary may, at its option,
enter upon and take possession of the Premises without the appointment of a
receiver, or an application therefor; obtain the appointment of a receiver to
exercise any remedies of Beneficiary or Trustee hereunder; employ a managing
agent of the Premises and lease the same, either in its own name, or in the name
of Grantor; and collect the rents, incomes, issues and profits of the Premises.
(e) Foreclosure by Power of Sale. Trustee, at
the request of Beneficiary, and after publishing notice of the time and place of
sale at least three (3) different times in some newspaper published in a county
in which the Real Estate is located, the first of which publications shall be at
least twenty (20) days prior to said sale, shall proceed to sell the Premises,
at public auction for cash. The Trustee shall apply the proceeds from such
sale(s) as provided in Subparagraph (h) below.
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(f) Judicial Foreclosure. Trustee and/or
Beneficiary may, at its option, institute appropriate proceedings of foreclosure
in equity or at law.
(g) Attorney-in-Fact. Any legal proceeding,
contractual obligation, further assignment or other action taken by Beneficiary
in the course of exercising its remedies hereunder may be entered into or
initiated by Beneficiary either in its own name as Grantor's assignee or in the
name of Grantor. Grantor hereby irrevocably appoints Beneficiary as Grantor's
attorney-in-fact for the purpose of taking any such action upon default
hereunder.
(h) Application of Proceeds of Foreclosure and
Other Remedies. All amounts received by Beneficiary pursuant to the exercise of
remedies hereunder shall be applied in accordance with the terms of the Credit
Agreement, the Prudential Documents and the Intercreditor Agreement.
18. Agreements Relating to Sale and Default. In the event
of any sale under this Instrument or pursuant to any order in any judicial
proceedings or otherwise, the Premises or any part thereof may be sold, in one
parcel or in such parcels, manner or order as Beneficiary, in its sole
discretion, may direct. At Beneficiary's option, a sale may be conducted
alternately as a single parcel and in tracts, to be closed under whichever
method yields a greater total price. If the Property is located in two or more
counties, it may all be sold in one of the counties if Trustee so elects.
Otherwise, the sale shall occur in the county in which the Property is located
unless Trustee, in his reasonable discretion, elects to conduct the sale
elsewhere. The sale shall be held at such location in the county as the
foreclosure notice may specify. One or more exercises of the power of sale
provided for herein shall not extinguish or exhaust said power until the entire
Premises has been sold or the Secured Indebtedness has been paid in full.
Trustee is hereby released from all obligations imposed by statute which can be
waived, including any requirement of qualification or bond. It is agreed that
Beneficiary, in the event of any sale of the Premises, may bid and buy as any
third person might, but Beneficiary shall not be required to present cash at the
sale except to the extent, if any, by which Beneficiary's bid exceeds the amount
of the Secured Indebtedness, including all expenses of collection and sale
provided for herein. Trustee may delegate, in his sole discretion, any authority
possessed under this Instrument, including the authority to conduct a
foreclosure sale. Without limiting the foregoing, Trustee may retain a
professional auctioneer to preside over the bidding, and the customary charge
for the auctioneer's services shall be paid from sale proceeds as an expense of
sale. If prior to or at any foreclosure sale a third party represents to the
Trustee in writing that such party holds the next junior lien to this Instrument
(whether by judgment lien, junior deed of trust, or otherwise), the Trustee may
disburse surplus proceeds to such third party in an amount not to exceed the
amount of lien alleged by the third party in its written statement to the
Trustee. A foreclosure sale may be adjourned by Trustee and may be reset at a
later time and/or date by announcement at the time and place of the originally
advertised sale and without any further publication. The foreclosure sale of the
Premises shall be conducted for cash to be tendered upon the conclusion of the
bidding; provided, however, (i) Trustee may accept a check issued or certified
by a local bank as consideration for the sale and (ii) if, in his sole
discretion, Trustee announces before or after bidding that, upon the failure of
the high bidder to complete the sale for cash within one (1) hour, the Premises
may be sold to the second highest bidder, and if the high bidder should
subsequently fail to complete the purchase within that time, then Trustee may,
at his option, close the sale of the Premises to the second highest bidder.
Grantor further
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agrees that, in the event of any sale hereunder, it will at once surrender
possession of the Premises, will from the moment of sale be the tenant at will
of the purchaser, will be removable by process and will be liable to pay said
purchaser the reasonable rental value of said Premises after such sale.
Beneficiary or Trustee may, after default, advise third parties of the amount
(or estimated amount) of principal, interest and expenses that will be
outstanding as of the date of any foreclosure sale and may share any other
available information regarding the Premises. Following the occurrence of a
default hereunder, any "release" provision included herein or in any other
document whereby Beneficiary agreed to release all or part of the Premises upon
the payment of less than all of the Secured Indebtedness shall become void and
Beneficiary shall no longer be obligated to release any of the Premises until
the Secured Indebtedness has been paid in full. Grantor agrees that Grantor will
not bid at any sale hereunder and will not allow others to bid on Grantor's
behalf unless, at the time of sale, Grantor has cash sufficient to pay at the
sale the amount of his bid.
19. Trustee Compensation. Trustee shall be entitled to
reasonable compensation for all services rendered, whether or not a foreclosure
is held hereunder, and shall be reimbursed for all reasonable expenses, charges
and attorneys' fees, including fees for legal advice concerning his duties and
rights in the Premises and title examinations.
20. Removal of Trustee. Beneficiary shall at all times
have the irrevocable right to remove Trustee without notice or cause and to
appoint Trustee's successor by a recorded instrument. If Trustee dies or
resigns, Beneficiary shall have the right to appoint its successor by recorded
instrument. Any Successor Trustee appointed pursuant to this paragraph shall be
vested with title to the Premises and shall possess all the powers, duties and
obligations herein conferred on Trustee in the same manner and to the same
extent as though he were named herein as Trustee.
21. Priority of Security for Future Advances. It is the
intention of the parties hereto that the Premises shall secure all indebtedness
presently or hereafter owed the Beneficiary Parties by Grantor pursuant to the
Prudential Documents or the Loan Documents, and that the priority of
Beneficiary's security for all such indebtedness shall be controlled by the time
of proper recording of this Instrument. This Paragraph shall serve as notice to
all persons who may seek or obtain a lien on the Premises subsequent to the date
of recording of this Instrument that until this Deed of Trust is released, any
debt owed the Beneficiary Parties by Grantor pursuant to the Prudential
Documents or the Loan Documents, including advances made subsequent to the
recording of this Instrument, shall be secured with the priority afforded this
Instrument as recorded.
22. Secured Indebtedness Not Limited by Statements for
Tax and Registration Authorities. Any legend appearing on the face hereof and
any affidavit that may be submitted to recording authorities herewith pursuant
to any requirement of taxation or registration authorities is included for the
benefit of such authorities only and does not affect the terms of Beneficiary's
agreement with Grantor as provided by this Instrument and by other documents
pertaining to the Secured Indebtedness or the priority of the lien of this
Instrument or any advances made hereunder.
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23. Information From Other Lienholders. Grantor hereby
irrevocably authorizes Beneficiary to obtain a statement from the owner of any
other presently existing or future obligation secured by any or all of the
Premises, at any time and without notice to Grantor, as to the amount of
principal, interest, and expenses secured thereby and as to the existence of a
default thereunder. The owner of each such obligation, including, but not
limited to, the owner of any obligation secured by a deed of trust on any or all
of the Premises, is hereby directed to provide Beneficiary with such information
upon request by Beneficiary, without making any inquiry of Grantor whatsoever,
and Grantor agrees that all such owners of other obligations (and their
servicing agents) shall incur no liability for providing such information to
Beneficiary.
24. No Subordination to Contractors. Beneficiary has not
consented to any priority of a contractor's lien for construction of any
improvements to the Property, and any such lien hereafter arising shall be
subordinate to the lien of this Instrument.
25. Choice of Security; No Third Party Beneficiaries. If
the Secured Indebtedness, or any part thereof, is now or hereafter further
secured by other deeds of trust, security interests, contracts of guaranty,
assignments of leases or of other collateral, Beneficiary may at its option
pursue recovery from any one or more thereof, in such order as it may determine,
and Beneficiary shall not be required to marshal assets. This Instrument has
been executed for the exclusive benefit of Beneficiary and there are no third
party beneficiaries hereof.
26. Waiver of Redemption Rights, Exemptions. etc. Any
sale of any or all of the Premises pursuant to the power of sale or judicial
sale provided for herein or in realization of the security interest granted
herein shall be made free from the equity of redemption, statutory right of
redemption, homestead, dower, curtesy, exemption rights, and all other rights
and interests of Grantor, all of which are hereby expressly waived.
27. Indulgence not Waiver. Any indulgence in Grantor's
departure from the terms of this Instrument shall not prejudice Beneficiary's or
Trustee's rights to require strict compliance herewith and to exercise any
rights they possess under this Instrument, including the right to declare a
default and proceed with any remedy available under this Instrument.
28. Gender and Number. The pronouns used herein shall
include, when appropriate, either gender and both singular and plural. Without
limiting the foregoing, if more than one Grantor executes this Instrument, each
reference to Grantor shall be construed as a reference to all Grantors jointly
and each Grantor severally. The word "Premises," whenever used herein, is not
used in a strictly collective sense, but includes parts and fractions of the
property herein conveyed as well as the aggregate of such property.
29. Severability; Conformity to Law. Should any provision
or clause of this Instrument be held invalid for any reason, the remaining
provisions of this Instrument shall be given effect to the extent possible
absent the invalid provision. To this end, the provisions of this Instrument are
declared to be severable. Additionally, the provisions hereof are subject to all
applicable federal, state and local laws and regulations, and shall be read to
so comply if specific facts surrounding the execution hereof cause any provision
to be contrary to any applicable law or regulation under the circumstances.
Without limiting the foregoing, the Secured Indebtedness
13
shall not include (i) any obligations for which this Instrument may not serve as
collateral due to prohibitions included in Regulation U issued by the Federal
Reserve Board, and (ii) any obligations for which a notice or disclosure is or
was required to be given regarding the security provided by this Instrument, if
such notice or disclosure is not or was not given in accordance with applicable
law.
30. Amendment. Any amendment to or modification of this
Instrument may be made by and between Grantor and Beneficiary without necessity
of joinder therein by Trustee. Any such amendment or modification, to be valid,
must be made in writing, signed by Grantor and Beneficiary, and duly recorded.
31. Nonexclusive Powers and Remedies. The rights of
Trustee and Beneficiary arising under this Instrument are in addition to all
rights that Trustee or Beneficiary may have at law or equity. Without limiting
the foregoing, all provisions of this Instrument that pertain to the rights and
duties of Trustee upon foreclosure of the Premises shall be regarded as
cumulative with the rights of Trustee otherwise available at law. No act of
Trustee or Beneficiary, including the institution of suit to recover any part of
the Secured Indebtedness, shall be construed as an election to proceed under any
one provision herein to the exclusion of any others or as an election of
remedies to the bar of any other remedy allowed at law or in equity.
32. Irrevocability of Power of Attorney. Whenever in this
Instrument Beneficiary is appointed as attorney-in-fact of Grantor, such power
of attorney is coupled with an interest and is irrevocable and shall not be
affected by the death, disability, or incapacity of Grantor. Additionally, all
such power are granted with full power of substitution.
33. Scope of Definitions. The words "Grantor,"
"Beneficiary," and "Trustee," whenever used herein, shall include the respective
parties originally entering into this Instrument and their respective heirs,
executors, administrators, legal representatives, successors and assigns, and
all those holding under any of them. This paragraph should not be construed as
limiting any other provisions hereof restricting the transfer of the Premises or
Grantor's assignment hereof.
34. Time of Essence. Time is of the essence of this
Instrument.
35. Governing Law. The validity, construction, and
enforcement of this Instrument shall be governed by the laws of the State of
Tennessee applicable to contracts executed and performed entirely within that
state.
36. Captions Not Controlling. Captions to the paragraphs
of this Instrument have been included for convenience only and do not limit or
control the contents of the respective paragraphs.
37. Notices. Any communications concerning this
Instrument shall be addressed as follows:
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As to Grantor: TBC Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
As to Beneficiary: JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
With a copy to: Boult, Cummings, Xxxxxxx & Xxxxx, PLC
Attn: Xxxx X. Xxxxxxx III
P.O. Box 198062
Xxxxxxxxx, Xxxxxxxxx 00000
Communications to be given to Beneficiary shall only be effective when set forth
in writing and actually received by an officer of Beneficiary at the address
indicated above. Communications to be given to Grantor shall be effective when
actually or constructively received by Grantor or any agent of Grantor or when
set forth in writing and mailed (postage prepaid) or delivered to Grantor's
address stated above. Any party may change its address for receipt of notices by
submitting the change in writing to the other party or parties. Third parties
making inquiries with respect to this Instrument may do so by contacting Grantor
and Beneficiary at the above addresses.
38. Street Address. The street address of the Premises
(if it presently has a street address) is:
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
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Executed the date first written above.
Grantor:
TBC CORPORATION
By: ______________________________________
Name _____________________________________
Title: ___________________________________
16
STATE OF
COUNTY OF
Before me, _________________ a Notary Public of the state and
county aforesaid, personally appeared _____________ , with whom I am personally
acquainted (or proved to me on the basis of satisfactory evidence), and who,
upon oath, acknowledged ___self to be _________________ of TBC Corporation, the
within named bargainor, a corporation, and that ______, as such ________, being
authorized so to do, executed the foregoing instrument for the purpose therein
contained, by signing the name of the corporation by ___self as _________ .
WITNESS my hand and seal this ____ day of ________, 2003.
_____________________________________
Notary Public
My Commission Expires:
EXHIBIT A
Commencing at the intersection of the centerline of East Shelby Drive with the
centerline of Hickory Hill Road; thence south along the centerline of Hickory
Hill Road a call distance of 478.67 feet to a point; thence east a distance of
54.00 feet to the point of beginning, said point being on the east line of
Hickory Hill Road; thence S 87(degree) 25' 42" E a distance of 1598.04 feet to a
one-half inch rebar found at a fence corner; thence S 02(degree) 21' 18" W a
distance of 540.00 feet to a point on the centerline of a fifty feet wide
railroad, drainage and utility easement (unrecorded); thence N 87(degree) 25'
42" W a distance of 1597.90 feet along said easement centerline to a point on
the east line of Hickory Hill Road; thence N 02(degree) 20' 25" E a distance of
540.00 feet to the point of beginning and containing 19.809 acres.
Being the same real estate conveyed to TBC Corporation by Warranty Deed dated
July 17, 1991, of record under Instrument No. CH-2450 in the Register's Office
of Shelby County, Tennessee.
EXHIBIT B
EXCEPTIONS
1. Rights or claims of parties in possession, not shown by the public
records.
2. Easements, or claims of easements, not shown by the public records.
3. The lien of the following general and special taxes for the year or
years specified and subsequent years:
1991 Shelby County taxes, not yet due and payable.
4. Reservation of 25 foot railroad, utility and drainage easements along
the southern portion of the subject property of record under Register's
No. J4 5209, in said Register's Office, and as shown on survey by X. X.
Xxxxxx & Company, Inc. dated June 28, 1991, revised July 9, 1991.
5. 13 foot easement is favor of Memphis Light, Gas & Water for electric
switch gear housing situated at the Northwest corner of subject
property, of record under Register's No. J7 9288, in said Register's
Office, and as shown on said survey.
6. 5 foot utility easement in favor of Memphis Light, Gas & Water along
the Northern property line, of record under Register's No. J7 9288, in
said Register's Office, and as shown on said survey.
7. 5 foot electric transmission line easement and right-of-way in favor of
Memphis Light, Gas & Water situated at the Southwest corner of the
subject property, of record under Register's No. T1 2928, in said
Register's Office, and as shown on said survey.
8. Location of inlets, chain link fence, sprinkler valves, fire hydrants,
electric vaults, anchor, railroad tracks, transformers, pipes, sanitary
sewer manholes, water valves, all as shown on said survey.
9. UCC-1 Financing Statement of record under Register's No. EZ 9492, as
continued by UCC-3 Financing Statement of record under Register's No.
F5 0242, in said Register's Office.
10. UCC-1 Financing Statement of record under Register's No. E2 9493, as
continued by UCC-3 Financing Statement of record under Register's No.
F5 0242, in said Register's Office.
11. Subject to rights and responsibilities of the parties pursuant to an
unrecorded "side track" Railroad Agreement dated July 19, 1974, entered
into between W.D.J. Associates and the St. Louis-San Francisco Railway
Company (predecessor in interest to Burlington Northern Railroad).
12. Encroachment of common use covered hallway type structure connecting
with adjacent building to East of the subject property, and situated at
the Southeast corner of the subject property, as shown on said survey.
13. Encroachment of concrete walkway onto adjacent property on Northern
property line, as shown on said survey.
14. Encroachment of parking area onto adjacent property to East of the
subject property, as shown on said survey.
15. Taxes and/or assessments levied or assessed against the subject
property pursuant to the provisions of TCA 67-5-603, which have not
been assessed and are not payable, as of the date of this Policy.
16. Any discrepancies, conflicts, encroachments, servitudes, shortages in
area and boundaries or other facts which a correct survey would show.
2
