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EXHIBIT 4.46
[CHANCERY CLERK XXXXXX COUNTY, MS STAMP]
Mississippi
DEED OF TRUST, SECURITY
AGREEMENT, FINANCING STATEMENT AND
ASSIGNMENT OF RENTS AND LEASES
[FILING STAMP - STATE OF MISSISSIPPI]
THIS DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT
OF RENTS AND LEASES ("Deed of Trust") entered into as of the 20th day of
December, 1993 by MISSISSIPPI-34 CELLULAR CORPORATION, a Mississippi
corporation (hereinafter called "Grantor"), having a place of business at 0000
Xxxxxxx Xxxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxxxx 00000 to XXXXX X. XXXXXXX, XX.,
having an address at 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx, 00000 ("Trustee")
for the benefit of AT&T CREDIT CORPORATION, a Delaware corporation with an
office located at 0 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
("Beneficiary"). Except as otherwise provided herein, all capitalized terms
used but not defined herein shall have the respective meanings given to them in
the Loan Agreement (as hereinafter defined).
WITNESSETH:
WHEREAS, Grantor and Beneficiary have entered into a certain Loan and
Security Agreement, dated as of December 20, 1993 (the Loan Agreement and any
and all renewals, extensions for any period, increases or rearrangements thereof
is referred to as the "Loan Agreement"), providing for the extension of credit
and certain other financial accommodations from time to time by Beneficiary to
Grantor in an aggregate amount not to exceed Nine Million Nine Hundred Eighty
Thousand and no/100 Dollars ($9,980,000.00); and
WHEREAS, pursuant to the provisions of the Loan Agreement, Grantor has
executed and delivered to Beneficiary (i) that certain Equipment Note, dated of
even date herewith, in the principal amount of Two Million One Hundred Thirty
Eight Thousand Eight Hundred Thirty Six and 03/100 Dollars ($2,138,836.03), and
(ii) that certain Capital Note, dated of even date herewith, in the principal
amount of One Million Six Hundred Eighty Four Thousand Nine Hundred Eighty
Seven and 01/100 Dollars ($1,684,987.01); and Grantor may hereafter from time
to time execute and deliver to Beneficiary additional Equipment
This document was prepared by
and after recording should be
returned to:
Xxxxx X. Xxxxxxxx
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
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Notes and Capital Notes, the total principal amount of which, when combined with
the Equipment Note and the Capital Note dated of even date herewith, will not
exceed Nine Million Nine Hundred Eighty Thousand and no/100 Dollars
($9,980,000.00) (the Equipment Notes and the Capital Notes and any and all
renewals, extensions for any period, increases, consolidations or
rearrangements thereof are jointly hereinafter referred to as the "Note"); and
WHEREAS, as a condition to Beneficiary's extension of certain financial
accommodations to Grantor including, without limitation, the extension of credit
evidenced by the Note and pursuant to the Loan Agreement, Beneficiary has
required that Grantor enter into this Deed of Trust and grant to Beneficiary
the liens and security interests referred to herein to secure (i) the payment
of the principal amount evidenced by the Note together with interest thereon;
(ii) payment of the principal amount, together with interest thereon, of all
present and future advances of money made by Beneficiary to Grantor, as well as
all other Obligations (all as defined and provided in the Loan Agreement) of
Grantor to Beneficiary; and (iii) other payment and performance obligations
related to this Deed of Trust (the aforesaid Obligations of Grantor to
Beneficiary, together with the obligations evidenced by the Note plus interest
and other payment and performance obligations being hereinafter referred to
collectively as the "Liabilities"); and
WHEREAS, the Liabilities secured hereby shall not exceed an aggregate
principal amount, at any one time oustanding of Fifteen Million and no/100
Dollars ($15,000,000.00), provided, that the foregoing limitation shall apply
only to the lien upon the real property created by this Deed of Trust, and it
shall not in any manner limit, affect or impair any grant of a security
interest or other right in favor of the Beneficiary under the provisions of the
Loan Agreement or under any other security agreement at any time executed by
Grantor;
NOW, THEREFORE, in consideration of the premises contained herein and to
secure payment of the Liabilities and in consideration of One Dollar ($1.00) in
hand paid, receipt whereof is hereby acknowledged, Grantor does hereby
irrevocably grant, bargain, sell, remise, release, alien, convey, confirm
mortgage and warrant to Trustee, IN TRUST, WITH POWER OF SALE, its successors
and assigns, the following described real estate (the "Land") in Xxxxxx
County, Mississippi, and does further grant a security interest to Beneficiary,
its successors and assigns, in all Personal Property (as defined below) as well
as all Mortgaged Property (as defined below) as may be secured under the
Uniform Commercial Code (the "Code") in effect in the State of Mississippi (the
"State"):
See Exhibit A attached hereto and by this reference made a part hereof for
the legal description of the Land
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which Land, together with all right, title and interest, if any, which Grantor
may now have or hereafter acquire in and to all improvements, buildings and
structures thereon of every nature whatsoever, is herein called the "Premises."
TOGETHER WITH all right, title and interest, if any, including
any after-acquired right, title and interest, and including any right of use or
occupancy, which Grantor may now have or hereafter acquire in and to (a) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining said Land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any way
belong, relate or be appurtenant thereto, and (b) all hereditaments, gas, oil,
minerals (with the right to extract, sever and remove such gas, oil and
minerals), and easements, of every nature whatsoever, located in or on the
Premises and all other rights and privileges thereunto belonging or
appertaining and all extensions, additions, improvements, betterments,
renewals, substitutions and replacements to or of any of the rights and
interests described in subparagraphs (a) and (b) above (hereinafter the
"Property Rights").
TOGETHER WITH all right, title and interest, if any, including any
after-acquired right, title and interest, and including any right of use or
occupancy, which Grantor may now or hereafter acquire in and to all fixtures
and appurtenances of every nature whatsoever now or hereafter located in, on or
attached to, and used or intended to be used in connection with, or with the
operation of, the Premises, including, but not limited to (a) all apparatus,
machinery and equipment of Grantor and (b) all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of
any of the foregoing (the items described in the foregoing clauses (a) and (b)
being the "Fixtures"); as well as all personal property and equipment of every
nature whatsoever now or hereafter located in or on the Premises, including but
not limited to (c) accounts, contract rights, general intangibles, tax refunds,
chattel paper, instruments, notes, letters of credit, documents, documents of
title; (d) inventory; (e) equipment; (f) all of Grantor's deposit accounts
(general or special) with and credits and other claims against Beneficiary, or
any other financial institution with which Grantor maintains deposits; (g) all
of Grantor's now owned or hereafter acquired monies, and any and all other
property and interests in property of Grantor now or hereafter coming into the
actual possession, custody or control of Beneficiary or any agent or affiliate
of Beneficiary in any way or for any purpose (whether for safekeeping, deposit,
custody, pledge, transmission, collection or otherwise); (h) all insurance
proceeds of or relating to any of the foregoing; (i) all insurance proceeds
relating to any key man life insurance policy covering the life of any officer
or director of Grantor; (j) all of Grantor's books and records relating to any
of the foregoing; and (k) all
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accessions and additions to, substitutions for, and replacements, products and
proceeds of any of the foregoing clauses (c) through (j) (the items described
in the foregoing clauses (c) through (k) and any other personal property
referred to in this paragraph being the "Personal Property"). It is mutually
agreed, intended and declared that the Premises and all of the Property Rights
and Fixtures owned by Grantor (referred to collectively herein as the "Real
Property") shall, so far as permitted by law, be deemed to form a part and
parcel of the Land and for the purpose of this Deed of Trust to be real estate
and covered by this Deed of Trust. It is also agreed that if any of the
property herein mortgaged is of a nature so that a security interest therein
can be perfected under the Code in effect in the State, this instrument shall
constitute a security agreement, fixture filing and financing statement, and
Grantor agrees to execute, deliver and file or refile any financing statement,
continuation statement, or other instruments Beneficiary may reasonably require
from time to time to perfect or renew such security interest under the Code. To
the extent permitted by law, (i) all of the Fixtures are or are to become
fixtures on the Land and (ii) this instrument, upon recording or registration
in the real estate records of the proper office, shall constitute a
"fixture-filing" within the meaning of Sections 9-313 and 9-402 of the Code.
Subject to the terms and conditions of the Loan Agreement, the remedies for any
violation of the covenants, terms and conditions of the agreements herein
contained shall be as prescribed herein or by general law, or, as to that part
of the security in which a security interest may be perfected under the Code,
by the specific statutory consequences now or hereafter enacted and specified
in the Code, all at Beneficiary's sole election.
TOGETHER WITH all the estate, right, title and interest of the Grantor
in and to (i) all judgments, insurance proceeds, awards of damages and
settlements resulting from condemnation proceedings or the taking of the Real
Property, or any part thereof, under the power of eminent domain or for any
damage (whether caused by such taking or otherwise) to the Real Property, or
any part thereof, or to any rights appurtenant thereto, and all proceeds of any
sales or other dispositions of the Real Property or any part thereof; and
(except as otherwise provided herein or in the Loan Agreement) the Beneficiary
is hereby authorized to collect and receive said awards and proceeds and to
give proper receipts and acquittances therefor, and to apply the same as
provided in the Loan Agreement; and (ii) all contract rights, general
intangibles, actions and rights in action relating to the Real Property or the
Personal Property including, without limitation, all rights to insurance
proceeds and unearned premiums arising from or relating to damage to the Real
Property or the Personal Property; and (iii) all proceeds, products,
replacements, additions, substitutions, renewals and accessions of and to the
Real Property and the Personal Property. (The rights and interests described in
this paragraph shall hereinafter be called the "Intangibles".)
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As additional security for the Liabilities secured hereby, Grantor (i)
does hereby pledge and assign to Beneficiary from and after the date hereof
(including any period of redemption), primarily and on a parity with the Real
Property, and not secondarily, all the rents, issues and profits of the Real
Property and all rents, issues, profits, revenues, royalties, bonuses, rights
and benefits due, payable or accruing (including all deposits of money as
advance rent, for security or as xxxxxxx money or as down payment for the
purchase of all or any part of the Real Property) (the "Rents") under any and
all present and future leases, contracts or other agreements relative to the
ownership or occupancy of all or any portion of the Real Property, and (ii)
except to the extent such a transfer or assignment is not permitted by the
terms thereof, does hereby transfer and assign to Beneficiary all such leases
and agreements (including all Grantor's rights under any contracts for the sale
of any portion of the Mortgaged Property and all revenues and royalties under
any oil, gas and mineral leases relating to the Real Property) (the "Leases").
Beneficiary hereby grants to Grantor the right to collect and use the Rents as
they become due and payable under the Leases, but not more than one (1) month
in advance thereof, unless an Event of Default shall have occurred provided
that the existence of such right shall not operate to subordinate this
assignment to any subsequent assignment, in whole or in part, by Grantor, and
any such subsequent assignment shall be subject to the rights of the
Beneficiary under this Deed of Trust. Grantor further agrees to execute and
deliver such assignments of leases or assignments of land sale contracts as
Beneficiary may from time to time request. In the event of an Event of Default
(1) the Grantor agrees, upon demand, to deliver to the Beneficiary all of the
Leases with such additional assignments thereof as the Beneficiary may request
and agrees that the Beneficiary may assume the management of the Real Property
and collect the Rents, applying the same upon the Liabilities in the manner
provided in the Loan Agreement, and (2) the Grantor hereby authorizes and
directs all tenants, purchasers or other persons occupying or otherwise
acquiring any interest in any part of the Real Property to pay the Rents due
under the Leases to the Beneficiary upon request of the Beneficiary. Grantor
hereby appoints Beneficiary as its true and lawful attorney in fact to manage
said property and collect the Rents, with full power to bring suit for
collection of the Rents and possession of the Real Property, giving and
granting unto said Beneficiary and unto its agent or attorney full power and
authority to do and perform all and every act and thing whatsoever requisite
and necessary to be done in the protection of the security hereby conveyed;
provided, however, that (i) this power of attorney and assignment of rents
shall not be construed as an obligation upon said Beneficiary to make or cause
to be made any repairs that may be needful or necessary and (ii) Beneficiary
agrees that until such Event of Default as aforesaid, Beneficiary shall permit
Grantor to perform the aforementioned management responsibilities. Upon
Beneficiary's receipt of the Rents, at Beneficiary's option, it
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may use the proceeds of the Rents to pay: (1) reasonable charges for collection
thereof, costs of necessary repairs and other costs requisite and necessary
during the continuance of this power of attorney and assignment of rents, (2)
general and special taxes, insurance premiums, and (3) any or all of the
Liabilities pursuant to the provisions of the Loan Agreement. This power of
attorney and assignment of rents shall be irrevocable until this Deed of Trust
shall have been satisfied and released of record and the releasing of this Deed
of Trust shall act as a revocation of this power of attorney and assignment of
rents. Beneficiary shall have and hereby expressly reserves the right and
privilege (but assumes no obligation) to demand, collect, xxx for, receive and
recover the Rents, or any part thereof, now existing or hereafter made, and
apply the same in accordance with the provisions of the Loan Agreement.
All of the property described above, and each item of property therein
described, not limited to but including the Land, the Premises, the Property
Rights, the Fixtures, the Personal Property, the Real Property, the
Intangibles, the Rents and the Leases, is herein referred to as the "Mortgaged
Property."
Nothing herein contained shall be construed as constituting the
Beneficiary a mortgagee-in-possession in the absence of the taking of actual
possession of the Mortgaged Property by the Beneficiary. Nothing contained in
this Deed of Trust shall be construed as imposing on Trustee or Beneficiary any
of the obligations of the lessor under any Lease of the Mortgaged Property in
the absence of an explicit assumption thereof by Trustee or Beneficiary. In the
exercise of the powers herein granted the Beneficiary, except as provided in
the Loan Agreement, no liability shall be asserted or enforced against the
Trustee or Beneficiary, all such liability being expressly waived and released
by Grantor.
TO HAVE AND TO HOLD the Mortgaged Property, properties, rights and
privileges hereby conveyed or assigned, or intended so to be, unto Beneficiary,
its beneficiaries, successors and assigns, forever for the uses and purposes
herein set forth. Grantor hereby releases and waives all rights under and by
virtue of the Homestead Exemption Laws, if any, of the State and Grantor hereby
covenants, represents and warrants that, at the time of the ensealing and
delivery of these presents, Grantor is well seized of the Mortgaged Property in
fee simple and with full legal and equitable title to the Mortgaged Property,
and with good right, full power and lawful authority to sell, assign, convey
and mortgage the Mortgaged Property, and that the title to the Mortgaged
Property described in Exhibit A attached hereto is free and clear of
encumbrances, except as described on Exhibit B attached hereto and made a part
hereof, and that, except for the encumbrances set forth on Exhibit B, Grantor
will forever defend the same against all lawful claims.
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The following provisions shall also constitute an integral part of
this Deed of Trust:
1. Payment of Taxes on the Deed of Trust. Without limiting any of
the provisions of the Loan Agreement, Grantor agrees that, if the United States
or any department, agency or bureau thereof or if the State or any of its
subdivisions having jurisdiction shall at any time require documentary stamps
to be affixed to this Deed of Trust or shall levy, assess, or charge any tax,
assessment or imposition upon this Deed of Trust or the credit or indebtedness
secured hereby or the interest of Beneficiary in the Premises or upon
Beneficiary by reason of or as holder of any of the foregoing then, Grantor
shall pay for such documentary stamps in the required amount and deliver them
to Beneficiary or pay (or reimburse Beneficiary for) such taxes, assessments or
impositions. Grantor agrees to exhibit to Beneficiary, at any time upon
request, official receipts showing payment of all taxes, assessments and
charges which Grantor is required or elects to pay under this paragraph.
Grantor agrees to indemnify Beneficiary against liability on account of such
documentary stamps, taxes, assessments or impositions, whether such liability
arises before or after payment of the Liabilities and regardless of whether
this Deed of Trust shall have been released.
2. Leases Affecting the Real Property. Grantor agrees faithfully
to perform all of its obligations under all present and future Leases at any
time assigned to Beneficiary as additional security, and to refrain from any
action or inaction which would result in termination of any such Leases or in
the diminution of the value thereof or of the Rents due thereunder. All future
lessees under any Lease made after the date of recording of this Deed of Trust
shall, at Beneficiary's option and without any further documentation, attorn to
Beneficiary as lessor if for any reason Beneficiary becomes lessor thereunder,
and, upon demand, pay rent to Beneficiary, and Beneficiary shall not be
responsible under such lease for matters arising prior to Beneficiary becoming
lessor thereunder.
3. Use of the Real Property. Grantor agrees that it shall not
permit the public to use the Real Property in any manner that might tend, in
Beneficiary's reasonable judgment, to impair Grantor's title to such property
or any portion thereof, or to make possible any claim or claims of easement by
prescription or of implied dedication to public use.
4. Indemnification. Grantor shall not use or permit the use of
any part of the Real Property for an illegal purpose, including, without
limitation, the violation of any environmental laws, statutes, codes,
regulations or practices. Without limiting any indemnification Grantor has
granted in the Loan Agreement, Grantor agrees to indemnify and hold harmless
Beneficiary from and against any and all losses, suits, liabilities, fines,
damages, judgments, penalties, claims,
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charges, costs and expenses (including reasonable attorneys' and paralegals'
fees, court costs and disbursements) which may be imposed on, incurred or paid
by or asserted against the Real Property by reason or on account of or in
connection with (i) the construction, reconstruction or alteration of the Real
Property, (ii) any negligence or misconduct of Grantor, any lessee of the Real
Property, or any of their respective agents, contractors, subcontractors,
servants, employees, licensees or invitees, (iii) any accident, injury, death
or damage to any person or property occurring in, on or about the Real Property
or any street, drive, sidewalk, curb or passageway adjacent thereto, or (iv)
any other transaction arising out of or in any way connected with the Mortgaged
Property (provided that Grantor shall have no obligation to Beneficiary under
this paragraph with respect to any indemnified matters caused by or resulting
from the willful misconduct or gross negligence of the Beneficiary).
5. Insurance. Grantor shall, at its sole expense, obtain for,
deliver to, assign and maintain for the benefit of Beneficiary, until the
Liabilities are paid in full, insurance policies as specified in the Loan
Agreement. In the event of a casualty loss, the net insurance proceeds from
such insurance policies shall be paid and applied as specified in the Loan
Agreement.
6. Condemnation Awards. Grantor hereby assigns to Beneficiary, as
additional security, all awards of damage resulting from condemnation
proceedings or the taking of or injury to the Real Property for public use, and
Grantor agrees that the proceeds of all such awards shall be paid and applied
as specified in the Loan Agreement.
7. Remedies. Subject to the provisions of the Loan Agreement,
upon the occurrence of an Event of Default under the terms of the Loan
Agreement, in addition to any rights and remedies provided for in the Loan
Agreement, and to the extent permitted by applicable law, the following
provisions shall apply:
(a) Beneficiary's Power of Enforcement. It shall be lawful for
Trustee, at the request of Beneficiary, to sell the Mortgaged Property or a
sufficiency thereof, to satisfy the Liabilities at public outcry to the highest
bidder for cash or on such other terms as Trustee may elect. Sale of the
Mortgaged Property shall be advertised for 3 consecutive weeks preceding the
sale in a newspaper published in the county where the Mortgaged Property is
situated, or if none is so published, then in some newspaper having a general
circulation therein, and by posting notice of sale for the same time at the
courthouse of the same county. The notice and advertisement shall disclose the
names of the original Grantor in this Deed of Trust. Grantor waives the
provisions of Section 89-1-55 of the Mississippi Code of 1972, as amended, if
any, as far as such section restricts the right of Trustee to offer at sale
more than 160 acres at a time,
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and Trustee may offer the Mortgaged Property herein conveyed as a whole,
regardless of how it is described. If the Mortgaged Property is situated in two
or more counties, or in two judicial districts of the same county, Trustee
shall have full power to select in which county, or judicial district, the sale
of the Mortgaged Property is to be made, newspaper advertisement published and
notice of sale posted, and Trustee's selection shall be binding upon Grantor
and Beneficiary. Any officer of Beneficiary may declare Grantor to be in
default and request Trustee to sell the Mortgaged Property. Beneficiary shall
have the same right to purchase the Mortgaged Property at the foreclosure sale
as would a purchaser who is not a party to this Deed of Trust. At any sale
hereunder, Trustee may, from time to time, adjourn said sale to a later date
without readvertising the sale by giving notice of the time and place of such
continued sale at the time Trustee shall make said adjournment. Trustee shall
have full power to conduct any sale hereunder through an agent duly appointed
by him for that purpose and said appointment need not be recorded. Out of the
proceeds arising from said sale, the costs and expenses of conducting the sale
and enforcing this Deed of Trust, including a reasonable Trustee's fee and the
attorneys' fee prescribed in the Note and this Deed of Trust, shall first be
paid, next, the amount of the Liabilities then remaining unpaid shall be paid,
and, lastly, any balance remaining shall be paid to Grantor or to any other
person lawfully entitled thereto. Grantor shall remain liable for any
deficiency on the Liabilities. Notwithstanding the foregoing, Beneficiary may
xxx and recover judgment an the Liabilities or any part thereof without first
requesting Trustee to exercise the power of sale granted hereunder and may seek
to collect any judgment so obtained by exercising the power of sale hereunder.
If instituting suit on the Liabilities or any part thereof, Beneficiary may
later abandon, stay or postpone such suit and request Trustee to exercise the
power of sale granted hereunder and thereafter recover judgment on the
Liabilities to the extent remaining unsatisfied. The power of sale granted
hereunder may be exercised as to all or any part of the Mortgaged Property, and
Beneficiary may xxx and recover judgment on the Liabilities to the extent
remaining unsatisfied after the sale. Neither institution of suit on the
Liabilities or any part thereof nor exercise of the power of sale granted
hereunder as to less than all of the Mortgaged Property shall affect this Deed
of Trust as to the Mortgaged Property not sold pursuant to the power of sale
granted hereunder. The court in which any proceeding is pending for the purpose
of foreclosure of this Deed of Trust may, at once or at any time thereafter,
either before or after sale, without notice and without requiring bond, and
without regard to the solvency or insolvency of any person liable for payment
of the Liabilities secured hereby, and without regard to the then value of the
Mortgaged Property or the occupancy thereof as a homestead, appoint a receiver
(the provisions for the appointment of a receiver and assignment of rents being
an express condition upon which the Loan hereby secured is made) for the
benefit of Beneficiary, with power to collect the Rents, due and to become
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due, during such foreclosure suit and the full statutory period of redemption
notwithstanding any redemption. The receiver, out of the Rents when collected,
may pay costs incurred in the management and operation of the Real Property,
prior and subordinate liens, if any, and taxes, assessments, water and other
utilities and insurance, then due or thereafter accruing, and may make and pay
for any necessary repairs to the Real Property, and may pay all or any part of
the Liabilities or other sums secured hereby or any deficiency decree entered
in such foreclosure proceedings. Upon or at any time after the filing of a suit
to foreclose this Deed of Trust, the court in which such suit is filed shall
have full power to enter an order placing Beneficiary in possession of the Real
Property with the same power granted to a receiver pursuant to this
subparagraph and with all other rights and privileges of a
mortgagee-in-possession under applicable law.
(b) Beneficiary's Right to Enter and Take Possession, Operate and
Apply Income. Beneficiary shall, at its option, have the right, acting through
its agents or attorneys, either with or without process of law, forcibly or
otherwise, to enter upon and take possession of the Real Property, expel and
remove any persons, goods, or chattels occupying or upon the same, to collect
or receive all the Rents, and to manage and control the same, and to lease the
same or any part thereof, from time to time, and, after deducting all
reasonable attorneys' fees and expenses, and all reasonable expenses incurred
in the protection, care, maintenance, management and operation of the Real
Property, distribute and apply the remaining net income in accordance with the
terms of the Loan Agreement or upon any deficiency decree entered in any
foreclosure proceedings.
8. Application of the Rents or Proceeds from Foreclosure or Sale.
In any foreclosure of this Deed of Trust by judicial action, in addition to any
of the terms and provisions of the Loan Agreement, there shall be allowed and
included in the decree for sale to be paid out of the Rents or the proceeds of
such foreclosure proceeding and/or sale:
(a) Liabilities. All of the Liabilities and other sums secured
hereby which then remain unpaid; and
(b) Other Advances. All other items advanced or paid by
Beneficiary pursuant to this Deed of Trust; and
(c) Costs, Fees and Other Expenses. All court costs, reasonable
attorneys' and paralegals' fees and expenses, appraiser's fees, advertising
costs, filing fees and transfer taxes, notice expenses, expenditures for
documentary and expert evidence, stenographer's charges, publication costs, and
costs (which may be estimated as to items to be expended after entry of the
decree) of procuring all abstracts of title, title searches and examinations,
title guarantees, title insurance policies, Torrens certificates and similar
data with respect to title which
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Beneficiary in the reasonable exercise of its judgment may deem necessary. All
such expenses shall become additional Liabilities secured hereby when paid or
incurred by Beneficiary in connection with any proceedings, including but not
limited to probate and bankruptcy proceedings, to which Beneficiary shall be a
party, either as plaintiff, claimant or defendant, by reason of this Deed of
Trust or any indebtedness hereby secured or in connection with the preparations
for the commencement of any suit for the foreclosure, whether or not actually
commenced, or sale by advertisement. The proceeds of any sale (whether through
a foreclosure proceeding or Beneficiary's exercise of the power of sale) shall
be distributed and applied in accordance with the terms of the Loan Agreement.
9. Cumulative Remedies; Delay or Omission Not a Waiver. Each
remedy or right of Beneficiary shall not be exclusive of but shall be in
addition to every other remedy or right now or hereafter existing at law or in
equity. No delay in the exercise or omission to exercise any remedy or right
accruing on the occurrence or existence of any Event of Default shall impair
any such remedy or right or be construed to be a waiver of any such Event of
Default or acquiescence therein, nor shall it affect any subsequent Event of
Default of the same or different nature. Every such remedy or right may be
exercised concurrently or independently and when and as often as may be deemed
expedient by Beneficiary.
10. Beneficiary's Remedies against Multiple Parcels. If more than
one property, lot or parcel is covered by this Deed of Trust, and if this Deed
of Trust is foreclosed upon, or judgment is entered upon any Liabilities
secured hereby, or if Beneficiary exercises its power of sale, execution may be
made upon or Beneficiary may exercise its power of sale against any one or more
of the properties, lots or parcels and not upon the others, or upon all of such
properties or parcels, either together or separately, and at different times or
at the same time, and execution sales or sales by advertisement may likewise be
conducted separately or concurrently, in each case at Beneficiary's election.
11. No Merger. In the event of a foreclosure of this Deed of Trust
or any other mortgage or deed of trust securing the Liabilities, the
Liabilities then due the Beneficiary shall not be merged into any decree of
foreclosure entered by the court, and Beneficiary may concurrently or
subsequently seek to foreclose one or more mortgages or deeds of trust which
also secure said Liabilities.
12. Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered by a courier service of recognized
standing or mailed (or, if by telex, graphic scanning or telecopy
communications equipment of the sending party, delivered by such equipment)
addressed, as follows:
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if to Grantor:
Mississippi-34 Cellular Corporation
14th Floor, Calcasieu Marine National Bank
Xxx Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Xx.
Telecopy No. (000) 000-0000
if to Trustee:
Xxxxx X. Xxxxxxx, Xx.
AT&T Capital Corporation
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Telecopy No. (000) 000-0000
if to Beneficiary:
AT&T Capital Corporation
Capital Markets Division
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attn: Operations Manager
Telecopy No. (000) 000-0000
with a copy to:
AT&T Capital Corporation/
Capital Markets Division
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attn: Chief Counsel
Telecopy No. (000) 000-0000
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
Telecopy No. (000) 000-0000
All notices and other communications given to any party hereto in accordance
with the provisions of this Deed of Trust shall be deemed to have been given
(a) three days after mailing when sent by registered or certified mail, postage
prepaid, return receipt requested, or (b) upon receipt, if by courier service
or any telecopy or graphic scanning communications equipment of the sender, in
each case addressed to such party as provided in this Section or in accordance
with the latest unrevoked direction from such party.
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13. Extension of Payments. Grantor agrees that, without affecting
the liability of any person for payment of the Liabilities secured hereby or
affecting the lien of this Deed of Trust upon the Mortgaged Property or any
part thereof (other than persons or property explicitly released as a result of
the exercise by Beneficiary of its rights and privileges hereunder),
Beneficiary may at any time and from time to time, on request of the Grantor,
without notice to any person liable for payment of any Liabilities secured
hereby, but otherwise subject to the provisions of the Loan Agreement, extend
the time, or agree to alter or amend the terms of payment of such Liabilities.
Grantor further agrees that any part of the security herein described may be
released with or without consideration without affecting the remainder of the
Liabilities or the remainder of the security.
14. Governing Law. Grantor agrees that this Deed of Trust is to be
construed, governed and enforced in accordance with the laws of the State.
Wherever possible, each provision of this Deed of Trust shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Deed of Trust shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Deed of Trust.
15. Satisfaction of Deed of Trust. Upon full payment of all the
Liabilities, at the time and in the manner provided in the Loan Agreement or
upon satisfaction of the conditions set forth in the Loan Agreement for release
of the Mortgaged Property from this Deed of Trust, this conveyance or lien
shall be null and void and, upon demand therefor following such payment or
satisfaction of the conditions set forth in the Loan Agreement for release of
the Mortgaged Property, as the case may be, a satisfaction of mortgage or
reconveyance of the Mortgaged Property shall promptly be provided by
Beneficiary to Grantor.
16. Successors and Assigns Included in Parties. This Deed of Trust
shall be binding upon the Grantor and upon the successors, assigns and vendees
of the Grantor and shall inure to the benefit of the Trustee's and the
Beneficiary's successors and assigns; all references herein to the Grantor, the
Trustee and the Beneficiary shall be deemed to include their respective
successors and assigns. Grantor's successors and assigns shall include, without
limitation, a receiver, trustee or debtor in possession of or for the Grantor.
Wherever used, the singular number shall include the plural, the plural shall
include the singular, and the use of any gender shall be applicable to all
genders.
17. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Grantor agrees, to the full extent permitted by law, that at
all times following an Event of Default, neither Grantor nor anyone claiming
through or under it
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shall or will set up, claim or seek to take advantage of any appraisement,
valuation, stay, or extension laws now or hereafter in force, in order to
prevent or hinder the enforcement or foreclosure of this Deed of Trust or the
absolute sale of the Mortgaged Property or the final and absolute putting into
possession thereof, immediately after such sale, of the purchaser thereat; and
Grantor, for itself and all who may at any time claim through or under it,
hereby waives, to the full extent that it may lawfully so do, the benefit of
all such laws and any and all right to have the assets comprising the Mortgaged
Property marshalled upon any foreclosure of the lien hereof and agrees that
Beneficiary or any court having jurisdiction to foreclose such lien may sell
the Mortgaged Property in part or as an entirety. To the full extent permitted
by law, Grantor hereby waives any and all statutory or other rights of
redemption from sale under any order or decree of foreclosure of this Deed of
Trust, on its own behalf and on behalf of each and every person acquiring any
interest in or title to the Mortgaged Property subsequent to the date hereof.
18. Interpretation with Other Documents. Notwithstanding anything
in this Deed of Trust to the contrary, in the event of a conflict or
inconsistency between the Deed of Trust and the Loan Agreement, the provisions
of the Loan Agreement shall govern.
19. Future Advances. This Deed of Trust is given for the purpose
of securing loan advances which the Beneficiary may make to or for Grantor
pursuant and subject to the terms and provisions of the Loan Agreement. The
parties hereto intend that, in addition to any other debt or obligation secured
hereby, this Deed of Trust shall secure unpaid balances of loan advances made
after this Deed of Trust is delivered for recordation in the official records
of the city or county in which the Mortgaged Property is located, whether made
pursuant to an obligation of Beneficiary or otherwise, and in such event, such
advances shall be secured to the same extent as if such future advances were
made on the date hereof, although there may be no advance made at the time of
execution hereof and although there may be no indebtedness outstanding at the
time any advance is made. Such loan advances may or may not be evidenced by
notes executed pursuant to the Loan Agreement.
20. Invalid Provisions to Affect No Others. In the event that any
of the covenants, agreements, terms or provisions contained in this Deed of
Trust shall be invalid, illegal or unenforceable in any respect, the validity
of the remaining covenants, agreements, terms or provisions contained herein or
in the Loan Agreement shall not be in any way affected, prejudiced or disturbed
thereby. In the event that the application of any of the covenants, agreements,
terms or provisions of this Deed of Trust is held to be invalid, illegal or
unenforceable, those covenants, agreements, terms and provisions shall not be
in any way affected, prejudiced or disturbed when otherwise applied.
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21. Changes. Neither this Deed of Trust nor any term hereof may be
changed, waived, discharged or terminated orally, or by any action or inaction,
but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. To the
extent permitted by law, any agreement hereafter made by Grantor and
Beneficiary relating to this Deed of Trust shall be superior to the rights of
the holder of any intervening lien or encumbrance.
22. Time of Essence. Time is of the essence with respect to the
provisions of this Deed of Trust.
23. Successor Trustee. Beneficiary, or any successor in ownership
of any indebtedness secured hereby, may from time to time, by instrument in
writing, substitute a successor or successors to any Trustee named herein or
acting hereunder, which instrument, executed by the Beneficiary duly
acknowledged and recorded in the office of the recorder of the county or
counties where the Mortgaged Property is situated, shall be conclusive proof of
proper substitution of such successor Trustee or Trustees, who shall, without
conveyance from the Trustee predecessor, succeed to all its title, estate,
rights, powers and duties. Said instrument must contain the name of the
original Grantor, Trustee and Beneficiary hereunder, the recording information
where this Deed of Trust is recorded and the name and address of the new
Trustee.
24. Trustee Covenants. Trustee covenants faithfully to perform the
trust herein created, being liable, however, only for gross negligence or
willful misconduct. Trustee accepts this Trust, when this Deed of Trust, duly
executed and acknowledged, is made a public record as provided by law. Trustee
is not obligated to notify any party hereto or any action or proceeding in
which Grantor, Beneficiary or Trustee shall be a party unless brought by
Trustee.
25. Maturity Date. The Liabilities have a final maturity date of
September 30, 2002.
IN WITNESS WHEREOF, this instrument is executed as of the day and year
first above written by the person or persons identified below on behalf of
Grantor (and said person or persons hereby represent that they possess full
power and authority to execute this instrument).
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THE GRANTOR HEREBY DECLARES AND ACKNOWLEDGES THAT THE GRANTOR HAS
RECEIVED, WITHOUT CHARGE, A TRUE COPY OF THIS DEED OF TRUST.
GRANTOR:
MISSISSIPPI-34 CELLULAR CORPORATION
By /s/ XXXXXXX X. XXXXXXX, XX.
----------------------------------
Its __________ President
Attest:
By /s/ (ILLEGIBLE)
-------------------------------
Its _________ Secretary
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STATE OF LOUISIANA )
) SS.
COUNTY OF CALCASIEU )
Personally appeared before me, the undersigned authority in and for
the aforesaid jurisdiction, the within named Xxxxxxx X. Xxxxxxx, Xx., who
acknowledged to me that Xxxxxxx Xxxxxxx, Jr. is President of Mississippi-34
Cellular Corporation, a Mississippi corporation, and that Xxxxxx Xxxxx signed
and delivered the foregoing instrument of writing on the day and year therein
mentioned for and on behalf of said corporation as its official act and deed,
being duly authorized so to do.
Given under my hand and official seal this 28th day of December, 1993.
/s/ (ILLEGIBLE)
------------------------------------
Notary Public
(Seal)
My Commission Expires: Lifetime
/s/ (ILLEGIBLE)
------------------------------------
Notary Public in and for the
State of Louisiana
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EXHIBIT A
(DESCRIPTION FOR MISSISSIPPI-34 CELLULAR CORPORATION)
A certain parcel of land situated in the NW-1/4 of the NW-1/4, of Section 8,
Township 14 North, Range 4 East, Xxxxxx County, Mississippi, containing 0.70
acre, more or less, and being more particularly described as follows:
Commencing at the SE corner of the NW-1/4 of the NW-1/4 of Section 0, Xxxxxxxx
00 Xxxxx, Xxxxx 0 Xxxx, Xxxxxx Xxxxxx, Xxxxxxxxxxx; run thence north 45 degrees
20 minutes 55 seconds west for 523.50 feet to a point, said point hereinafter
referred to as the POINT OF BEGINNING: Thence south 82 degrees 18 minutes 24
seconds west along a fence for 53.67 feet; thence south 87 degrees 36 minutes
42 seconds west along a fence for 102.66 feet; thence north 10 degrees 40
minutes 24 seconds east for 181.35 feet; thence south 79 degrees 19 minutes 36
seconds east for 87.71 feet; thence north 37 degrees 10 minutes 04 seconds east
for 91.31 feet; thence north 63 degrees 40 minutes 04 seconds east for 47.62
feet to the west line of a gravel county road; thence south 12 degrees 28
minutes 34 seconds west along the west line of said road for 109.34 feet;
thence south 15 degrees 31 minutes 52 seconds west along the west line of said
road for 142.85 feet to the POINT OF BEGINNING.
INDEXING INSTRUCTION
The property described in this Deed of Trust is located in the NW 1/4 of the NW
1/4 of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx, Xxxxxx Xxxxxx, Xxxxxxxxxxx.
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EXHIBIT B
Permitted Exceptions to Title
Those title exceptions listed on title policy Z 300598, dated May 6,
1993, issued by Mississippi Valley Title Insurance Company and Old Republic
National Title Insurance Company for the property described on Exhibit A
hereto.
