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EXHIBIT 10.29
This instrument prepared by The maximum principal indebtedness
XxxXxxx X. Xxx for Tennessee recording tax purposes
Xxxxx, Xxxxxx & Xxxxxxx, PLLC is $_______________. See affidavit
00 Xxxxx Xxxxx, Xxxxx 000 attached.
Xxxxxxx, XX 00000
DEED OF TRUST,
SECURITY AGREEMENT, AND FIXTURE FILING
THIS DEED OF TRUST, SECURITY AGREEMENT, AND FIXTURE FILING (the "DEED
OF TRUST"), made and entered into as of the 15th day of September, 1997, by and
between SOUTHWESTERN ICE, INC., a Texas corporation, in favor of XXXXX X.
XXXXXX, XX., AND C. XXXXXX XXXXX, both residents of Shelby County, Tennessee,
Trustees ("TRUSTEE"; said term collectively referring always to the named
Trustees and their respective successors in Trust), for the use and benefit of
Agent and all other Banks (as defined below) who are collectively referred to
as "BENEFICIARY", said term referring always to the lawful owner and holder of
the indebtedness secured hereby.
ARTICLE 1
1.01 CERTAIN DEFINITIONS. In addition to the other terms defined
herein, each of the following terms shall have the meaning assigned to it:
"AGENT" - The Frost National Bank, a national banking
association, in its capacity as agent for the Banks, and its successors and
assigns.
"BANKS" - Collectively, each of the financial institutions
listed on the signature pages to the Credit Agreement, together with each other
person or entity becoming a Bank pursuant thereto from time to time, and their
respective successors and assigns.
"BORROWER" - Packaged Ice, Inc., a Texas corporation.
"GRANTOR" - Southwestern Ice, Inc., a Texas corporation, and
its successors and assigns.
"CREDIT AGREEMENT" - that certain Credit Agreement dated as of
the date hereof, executed by and among Borrower, The Frost National Bank, as
Agent and as Bank, and the other Banks named therein, as amended, supplemented,
modified, restated or extended from time to time.
"PROMISSORY NOTES" - Each Revolving Credit Note (as such term
is defined in the Credit Agreement) executed by Borrower jointly and severally
payable to the order of any Bank, evidencing loans advanced to Borrower under
the Credit Agreement, in an aggregate principal face amount of $20,000,000,
bearing interest as therein provided, containing a provision for the payment of
a reasonable additional amount as attorneys' fees, and finally maturing on
April 15, 2003, together with any renewals, increases, extensions,
restatements, or modifications thereof.
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1.02 MORTGAGED PROPERTY. For and in consideration of the sum of
Ten and No/100 Dollars ($10.00), and other valuable considerations, the receipt
and sufficiency thereof are hereby acknowledged, and in order to secure the
indebtedness and other obligations of Borrower as hereinafter set forth,
Grantor does hereby grant, bargain, sell, convey, assign, transfer, pledge, and
set over unto Trustee, and the successors and assigns of Trustee, all of the
following described land and interests in land, estates, easements, rights,
improvements, personal property, fixtures, equipment, furniture, furnishings,
appliances and appurtenances, including replacements and additions thereto
(hereinafter referred to collectively as the "PREMISES"):
(a) That certain real property located in City of Memphis, Shelby County,
Tennessee, more particularly described in Exhibit A attached hereto
and by this reference made a part hereof (the "LAND");
(b) Any and all buildings, structures, and improvements of every nature
whatsoever now or hereafter situated on the Land, and all gas and
electric fixtures, radiators, heaters, engines and machinery, boilers,
ranges, elevators and motors, plumbing, heating, lighting,
ventilation, air conditioning, and sprinkling fixtures, carpeting and
other floor coverings, washers, dryers, water heaters, mirrors,
mantels, refrigerating plants, refrigerators, cooking apparatus and
appurtenances, window screens, awnings and storm sashes, communication
systems, dynamos, transformers, transmitters, satellite or microwave
dishes, which are or shall be attached to said buildings, structures,
land, or improvements, and all other furnishings, furniture, fixtures,
machinery, equipment, appliances, and personal property of every kind
and nature whatsoever now or hereafter owned by Grantor and located
in, on or about, or used or intended to be used with or in connection
with the use, operation or enjoyment of the Premises, including all
extensions, additions, improvements, betterments, renewals and
replacements, substitutions, or proceeds from a permitted sale of any
of the foregoing, and all building materials and supplies of every
kind now or hereafter placed or located on the Land (collectively the
"IMPROVEMENTS"), all of which are hereby declared and shall be deemed
to be fixtures and accessions to the Land and a part of the Premises
as between the parties hereto and all persons claiming by, through or
under them, and which shall be deemed to be a portion of the security
for the indebtedness herein described and to be secured by this Deed
of Trust;
(c) All easements, rights-of-way, strips, and gores of land, vaults,
streets, ways, alleys, passages, sewer rights, waters, water courses,
water rights and powers, minerals, flowers, shrubs, crops, trees,
timber and other emblements now or hereafter located on the Land or
under or above the same or any part or parcel thereof, and all
estates, rights, titles, interests, privileges, liberties, tenements,
hereditaments, and appurtenances, reversions, and remainders
whatsoever, in any way belonging, relating, or appertaining to the
Premises or any part thereof, or which hereafter shall in any way
belong, relate or be appurtenant thereto, whether now owned or
hereafter acquired by Borrower; and
(d) All rents, issues, profits, revenues, income, and other benefits
derived from the Premises from time to time (including, without
limitation, all payments under leases or tenancies, proceeds of
insurance, condemnation payments, tenant security deposits and escrow
funds), and all of the estate, right, title, interest, property,
possession, claim, and demand whatsoever at law, as well as in equity,
of Grantor of, in and to the same, reserving only the right to Grantor
to collect the same so long as Grantor is not in default hereunder.
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TO HAVE AND TO HOLD the Premises and all parts, rights, members, and
appurtenances thereof, to the use and benefit of Trustee and the successors,
successors-in-title and assigns of Trustee, forever; and Grantor covenants that
Grantor is lawfully seized and possessed of the Premises and has good right to
convey the same, that the Premises are unencumbered except for any and all
matters of record as of the date hereof.
1.03 SECURED INDEBTEDNESS. This Deed of Trust is made to secure
and enforce the payment and performance of the following promissory notes,
obligations, indebtedness and liabilities and all renewals, extensions,
supplements, increases, and modifications thereof in whole or in part from time
to time:
(a) The Promissory Notes and all other notes given in
substitution therefor or in modification, supplement, increase, renewal or
extension thereof, in whole or in part (such notes, as from time to time
renewed, extended, supplemented, increased, or modified and all other notes
given in substitution therefor, or in modification, renewal or extension
thereof, in whole or in part, referred to as the "NOTES"), and Agent and the
other Banks, or the subsequent holders at the time in question of the Notes or
any of the secured indebtedness, as hereinafter defined (being collectively
herein called "HOLDERS" and individually a "HOLDER");
(b) All indebtedness and other obligations owed by
Borrower (or Grantor) to any Holder now or hereafter incurred or arising
pursuant to or permitted by the provisions of the Notes, this Deed of Trust, or
any other document now or hereafter evidencing, governing, guaranteeing,
securing, or otherwise executed in connection with the loans evidenced by the
Notes, including, but not limited to any loan or credit agreement, tri-party
financing Agreement or other agreement between Borrower and Holders, or among
Borrower, Holders and any other party or parties, pertaining to the repayment
or use of the proceeds of the loan evidenced by the Notes (the Credit
Agreement, the Notes, this Deed of Trust, any other "Loan Papers" (as such term
is defined in the Credit Agreement), and such other documents, as they or any
of them may have been or may be from time to time renewed, extended,
supplemented, increased or modified, being herein sometimes collectively called
the "LOAN DOCUMENTS");
Should the above described indebtedness secured by this Deed of Trust
(hereinafter referred to collectively as the "SECURED INDEBTEDNESS") be paid
according to the tenor and effect thereof when the same shall become due and
payable, and should Grantor and Borrower perform all covenants herein contained
in a timely manner, then this Deed of Trust shall be canceled and released.
ARTICLE II
2.01. PAYMENT OF INDEBTEDNESS. Borrower shall pay the indebtedness
evidenced by the Promissory Notes according to the tenor thereof and the
remainder of the Secured Indebtedness promptly as the same shall become due.
Beneficiary has not consented and will not consent to the performance of any
work or the furnishing of any materials, which might be deemed to create a lien
or liens superior to the lien hereof, either under Tennessee Code Annotated
Section 00-00-000, as the same may be amended from time to time, or otherwise.
2.02 TAXES AND OTHER IMPOSITIONS. Grantor will pay, or cause to be
paid, all taxes, assessments and other charges or levies imposed upon or
against or with respect to the Premises or the ownership, use, occupancy or
enjoyment of any portion thereof, or any utility service thereto, as the same
become due and payable, including, but not limited to all ad valorem taxes
assessed against the Premises
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or any part thereof, except for any such taxes or charges being contested in
good faith and by proper proceedings for which adequate reserves in accordance
with generally accepted accounting principles have been taken, and shall
deliver promptly to Agent such evidence of the payment thereof as Agent may
reasonably require.
2.03 INSURANCE. Grantor shall obtain and maintain at Grantor's
sole expense:
(a) All risk insurance with respect to the Premises, all insurable
property of grantor therein, against loss or damage by fire,
lightning, windstorm, explosion, hail, tornado and such hazards as are
presently included in so-called "all-risk" coverage and against such
other insurable hazards as Agent may require, in an amount not less
than 100% of the full replacement cost, including the cost of debris
removal, without deduction for depreciation and sufficient to prevent
Grantor and Agent from becoming a coinsurer, such insurance to be in
Builder's Risk (non-reporting) form during and with respect to any
construction on the Premises;
(b) If and to the extent any portion of the Premises is in a special flood
hazard area, a flood insurance policy in an amount equal to the lesser
of the principal face amount of the Notes or the maximum amount
available;
(c) Commercial general public liability insurance, on an "occurrence"
basis, for the benefit of Grantor and Agent as named insureds;
(d) Statutory workers' compensation insurance with respect to any work on
or about the Premises; and
(e) Such other insurance on the Premises as may from time to time be
reasonably required by Agent (including, but not limited to business
interruption insurance, boiler and machinery insurance, earthquake
insurance, and war risk insurance) and against other insurable hazards
or casualty which at the time are commonly insured against in the case
of premises similarly situated, due regard being given to the height,
type, construction, location, use and occupancy of buildings and
improvements.
All insurance policies shall be issued and maintained by insurers, in amounts,
with deductibles, and in form satisfactory to Agent, and shall require not less
than thirty (30) days' prior written notice to Agent of any cancellation or
change of coverage. All insurance policies maintained, or caused to be
maintained, by Grantor with respect to the Premises, except for public
liability insurance, shall provide that each such policy shall be primary
without right of contribution from any other insurance that may be carried by
Grantor or Agent and that all of the provisions thereof, except the limits of
liability, shall operate in the same manner as if there were a separate policy
covering each insured. If any insurer which has issued a policy of title,
hazard, liability or other insurance required pursuant to this Deed of Trust or
any other Loan Document becomes insolvent or the subject or any bankruptcy,
receivership or similar proceeding or if in the Agent's reasonable opinion the
financial responsibility of such insurer is or become inadequate, Grantor
shall, in each instance promptly upon the request of Agent and at Grantor's
expense, obtain and delivery to Agent a like policy (or, if and to the extent
permitted by Agent, a certificate of insurance) issued by another insurer,
which insurer and policy meet the requirements of this Deed of Trust or such
other Loan Document, as the case may be. Without limiting the discretion of
Agent with respect to required endorsements to insurance policies, all such
policies for loss of or damage to the Premises shall contain a standard Deed of
Trust clause (without contribution) naming Agent, as Agent for the Banks, as
Deed of Trusts with loss proceeds payable to Agent notwithstanding (i) any act,
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failure to act or negligence of or violation of any warranty, declaration or
condition contained in any such policy by any named insured; (ii) the
occupation or use of the Premises for purposes more hazardous than permitted by
the terms of any such policy; (iii) any foreclosure or other action by Agent
under the Loan Documents; or (iv) any change in title to or in ownership of the
Premises or any portion thereof, such proceeds to be held for application as
provided in the Loan Documents. The originals of each initial insurance policy
(or to the extent permitted by Agent, a copy of the original policy and a
satisfactory certificate of insurance) shall be delivered to Agent at the time
of execution of this Deed of Trust, with premiums fully paid, and each renewal
or substitute policy (or certificate) shall be delivered to Agent, with
premiums fully paid, at least ten (10) days before the termination of the
policy it renews or replaces. Grantor shall pay all premiums on policies
required hereunder as they become due and payable and promptly deliver to Agent
evidence satisfactory to Agent of the timely payment thereof. If an loss
occurs at any time when Grantor has failed to perform Grantor's covenants and
agreements in this paragraph, Agent shall nevertheless be entitled to the
benefit of all insurance covering the loss and held by or for Grantor, to the
same extent as if it had been made payable to Agent. Upon any foreclosure
hereof or transfer of title to the Premises in extinguishment of the whole or
any part of the secured indebtedness, all of grantor's right, title and
interest in and to the insurance policies referred to in this Section
(including unearned premiums) and all proceeds payable thereunder shall
thereupon vest in the purchaser at foreclosure or other such transferee, to the
extent permissible under such policies. Agent shall have the right (but not
the obligation) to make proof of loss for, settle and adjust any claim under,
and receive the proceeds of, all insurance for loss of or damage to the
Premises, and the expenses incurred by Agent in the adjustment and collection
of insurance proceeds shall be a part of the secured indebtedness and shall be
due and payable to Agent on demand. Agent shall not be, under any
circumstances, liable or responsible for the obtaining, maintaining or adequacy
of any insurance or for failure to collect or exercise diligence in the
collection of any of such proceeds or for failure to see to the proper
application of any amount paid over to grantor. Any such proceeds received by
Agent shall, after deduction therefrom of all reasonable expenses actually
incurred by Agent, including attorneys; fees, at Agent's option by (1) released
to Grantor, or (2) applied (upon compliance with such terms and conditions as
may be required by Agent) to repair or restoration, either partly or entirely,
of the Premises so damaged, or (3) applied to the payment of the secured
indebtedness in such order and manner as Agent, in its sole discretion, may
elect, whether or not due. Grantor shall at all times comply with the
requirements of the insurance policies required hereunder and of the issuers of
such policies and of any board of fire underwriters or similar body as
applicable to or affecting the Premises.
2.04 RESERVE FOR INSURANCE, TAXES AND ASSESSMENTS. Upon the
occurrence of an Event of Default and upon the written request of Agent, to
secure certain of Grantor's obligations in paragraphs (c) and (d) above, but
not in lieu of such obligations, Grantor will deposit with Agent a sum equal to
ad valorem taxes, assessments and charges (which charges for the purpose of
this paragraph shall include without limitation any recurring charge which
could result in a lien against the Premises) against the Premises for the
current year and the premiums for such policies of insurance for the current
year, all as estimated by Agent and prorated to the end of the calendar month
following the month during which Agent's request is made, and thereafter will
deposit with Agent, on each date when an installment of principal and/or
interest is due on the Notes, sufficient funds (as estimated from time to time
by Agent) to permit Agent to pay at least fifteen (15) days prior to the due
date thereof, the next maturing ad valorem taxes, assessments and charges and
premiums for such policies of insurance. Agent shall have the right to rely
upon tax information furnished by applicable taxing authorities in the payment
of such taxes or assessments and shall have no obligation to make any protest
of any such taxes or assessments. Any excess over the amounts required for
such purposes shall be held by Agent for future use, applied to any secured
indebtedness or refunded to grantor, at Agent's option, and any deficiency in
such funds so deposited shall be made up by Grantor upon demand of Agent. All
such funds so deposited shall bear no
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interest, may be mingled with the general funds of Agent and shall be applied
by Agent toward the payment of such taxes, assessments, charges and premiums
when statements therefor are presented to Agent by Grantor (which statements
shall be presented by Grantor to Agent a reasonable time before the applicable
amount is due); provided, however, that, if a default shall have occurred
hereunder, such funds may at Agent's option be applied to the payment of the
secured indebtedness in the order determined by Agent in its sole discretion,
and Agent may (but shall have no obligation) at any time, in its discretion,
apply all or any part of such funds toward the payment of any such taxes,
assessments, charges or premiums which are past due, together with any
penalties or late charges with respect thereto. The conveyance or transfer of
Grantor's interest in the Premises for any reason (including without limitation
the foreclosure of a subordinate lien or security interest or a transfer by
operation of law) shall constitute an assignment or transfer of Grantor's
interest in and rights to such funds held by Agent under this paragraph but
subject to the rights of Agent hereunder.
2.05 CONDEMNATION. Grantor shall notify Agent immediately after
Grantor becomes aware of any threatened or pending proceeding for condemnation
affecting the Premises or arising out of damage to the Premises, and grantor
shall, at Grantor's expense, diligently prosecute any such proceedings. Agent
shall have the right (but not the obligation) to participate in any such
proceeding, and to be represented by counsel of its own choice. Agent shall be
entitled to receive all sums which may be awarded or become payable to grantor
of the condemnation of the Premises, or any part thereof, for public or
quasi-public use, or by virtue of private sale in lieu thereof, and any sums
which may be awarded or become payable to grantor for injury or damage to the
Deed of Trust Property, provided it is applied to the secured indebtedness.
Grantor shall, promptly upon request of Agent, execute such additional
assignments and other documents as may be necessary from time to time to permit
such participation and to enable Agent to collect and receipt for any such
sums. All such sums are hereby assigned to Agent, and shall, after deduction
therefrom of all reasonable expenses actually incurred by Agent, including
reasonable attorneys' fees, at Agent's option be (1) released to grantor, or
(2) applied (upon compliance with such terms and conditions as may be required
by Agent) to repair or restoration of the Premises so affected, or (3) applied
to the payment of the secured indebtedness in such order and manner as Agent,
in its sole discretion, may elect, whether or not due. Agent shall not be,
under any circumstances, liable or responsible for failure to collect or to
exercise diligence in the collection of any such sum or for failure to see to
the proper application of any amount paid over to grantor. Agent is hereby
authorized, in the name of grantor, to execute and deliver valid acquittances
for, and to appeal from, any such award, judgment or decree. All reasonable
costs and expenses (including but not limited to reasonable attorneys' fees)
incurred by Agent in connection with any condemnation shall be a demand
obligation owing by Grantor (which Grantor hereby promises to pay) to Agent
pursuant to this Deed of Trust.
2.06. CARE OF PREMISES.
(a) Grantor will keep any and all buildings, parking areas, roads,
walkways, recreational facilities, landscaping, and all other
improvements of any kind now or hereafter erected on the Land or any
part thereof in good condition and repair, will not commit or suffer
any waste and will not do or suffer to be done anything that would or
could increase the risk of fire or other hazard to the Premises or any
other part thereof or which would or could result in the cancellation
of any insurance policy carried with respect to the Premises.
(b) Grantor will not remove, demolish, or materially alter the structural
character of any Improvements located on the Land without the written
consent of Beneficiary.
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(c) If the Premises or any part thereof is damaged by fire or any other
cause, Grantor will give immediate written notice thereof to
Beneficiary.
(d) Beneficiary or its representative is hereby authorized to enter upon
and inspect the Premises at any time during normal business hours.
(e) Grantor will promptly comply with all present and future laws,
ordinances, rules, and regulations of any governmental authority
affecting the Premises or any part thereof.
(f) If all or any part of the Premises shall be damaged by fire or other
casualty, Grantor will promptly restore the Premises to the equivalent
of its original condition; and if a part of the Premises shall be
damaged through condemnation, Grantor will promptly restore, repair,
or alter the remaining portions of the Premises in a manner reasonably
satisfactory to Beneficiary. Notwithstanding the foregoing, Grantor
shall not be obligated so to restore unless in each instance,
Beneficiary agrees to make available to Grantor (pursuant to a
procedure satisfactory to Beneficiary) any net insurance or
condemnation proceeds actually received by Beneficiary hereunder in
connection with such casualty loss or condemnation, to the extent such
proceeds are required to defray the expense of such restoration;
provided, however, that the insufficiency of any such insurance or
condemnation proceeds to defray the entire expense of restoration
shall in no way relieve Grantor of its obligation to restore. In the
event all or any portion of the Premises shall be damaged or destroyed
by fire or other casualty or by condemnation, Grantor shall promptly
deposit with Beneficiary a sum equal to the amount by which the
estimated cost of the restoration of the Premises (as determined by
Beneficiary in its good faith judgment) exceeds the actual net
insurance or condemnation proceeds with respect to such damage or
destruction.
2.07. 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.
2.08. SECURITY AGREEMENT. With respect to the apparatus, fittings,
fixtures, and articles of personal property referred to or described in this
Deed of Trust, or in any way connected with the use and enjoyment of the
Premises, this Deed of Trust is hereby made and declared to be a security
agreement encumbering each and every item of personal property included herein
as a part of the Premises, in compliance with the provisions of the Uniform
Commercial Code as enacted in the state of Tennessee, and Grantor hereby grants
to Beneficiary a security interest in said personal property (including any
fixtures that are personal property under applicable state law). A financing
statement or statements reciting this Deed of Trust to be a security agreement
affecting all of said personal property aforementioned shall be executed by
Grantor and Beneficiary and appropriately filed. The remedies for any
violation of the covenants, terms, and conditions of the security agreement
contained in this Deed of Trust, or otherwise in respect of an Event of Default
hereunder, shall be (i) as prescribed herein, or (ii) as prescribed by general
law, or (iii) as prescribed by the specific statutory consequences now or
hereafter enacted and specified in said Uniform Commercial Code, all at
Beneficiary's sole election. Grantor and Beneficiary agree that the filing of
such financing statement(s) in the records normally having to do with personal
property shall not in any way affect the agreement of Grantor and Beneficiary
that everything used in connection with the production of income from the
Premises or adapted for use therein or which
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is described or reflected in this Deed of Trust, is, and at all times and for
all purposes and in all proceedings, both legal or equitable, shall be,
regarded as part of the real estate conveyed hereby regardless of whether (a)
any such item is physically attached to the Improvements, (b) serial numbers
are used for the better identification of certain items capable of being thus
identified in an Exhibit to this Deed of Trust, or (c) any such item is
referred to or reflected in any such financing statement(s) so filed at any
time. Similarly, the mention in any such financing statement(s) of the rights
in and to (aa) the proceeds of any fire and/or hazard insurance policy, or (bb)
any award in eminent domain proceedings for a taking or for loss of value, or
(cc) Grantor's interest as lessor in any present or future lease or rights to
income growing out of the use and/or occupancy of the Premises, whether
pursuant to lease or otherwise, shall not in any way alter any of the rights of
Beneficiary as determined by this instrument or affect the priority of
Beneficiary's security interest granted hereby or by any other recorded
document, it being understood and agreed that such mention in such financing
statement(s) is solely for the protection of Beneficiary in the event any court
shall at any time hold, with respect to the foregoing items (aa), (bb), or
(cc), that notice of Beneficiary's priority of interest, to be effective
against a particular class of persons, must be filed in the Uniform Commercial
Code records.
2.09. EXPENSES. Grantor will pay or reimburse Beneficiary, upon
demand therefor, for all reasonable attorney's fees, costs and expenses
incurred by Trustee and/or Beneficiary in any suit, action, legal proceeding or
dispute of any kind in which Trustee and/or Beneficiary is made a party or
appears as party plaintiff or defendant, affecting the Secured Indebtedness,
this Deed of Trust or the interest created herein, or the Premises, including,
but not limited to, the exercise of the power of sale contained in this Deed of
Trust, any condemnation action involving the Premises or any action to protect
the security hereof, and any such amounts paid by Trustee and/or Beneficiary
shall be added to the Secured Indebtedness and shall be secured by this Deed of
Trust.
2.10. ESTOPPEL AFFIDAVITS. Grantor, upon ten (10) days' prior
written notice, shall furnish Beneficiary a written statement, duly
acknowledged, setting forth the unpaid principal of, and interest on, the
Secured Indebtedness, stating whether any off-sets or defenses exist against
the Secured Indebtedness, or any portion thereof, and, if such off-sets or
defenses exist, stating in detail the specific facts relating to each such
off-set or defense.
2.11. SUBROGATION. To the full extent of the Secured Indebtedness,
Beneficiary is hereby subrogated to the liens, claims, and demands, and to the
rights of the owners and holders of each and every lien, claim, demand, and
other encumbrance on the Premises which is paid or satisfied, in whole or in
part, out of the proceeds of the Secured Indebtedness, and the respective
liens, claims, demands, and other encumbrances shall be, and each of them is
hereby preserved and shall pass to and be held by Beneficiary as additional
collateral and further security for the Secured Indebtedness, to the same
extent they would have been preserved and would have been passed to and held by
Beneficiary had they been duly and legally assigned, transferred, set over, and
delivered unto Beneficiary by assignment, notwithstanding the fact that the
same may be satisfied and canceled of record.
2.12. LIMIT OF VALIDITY. If from any circumstances whatsoever,
fulfillment of any provision of this Deed of Trust or of the Promissory Notes,
at the time performance of such provision shall be due, shall involve
transcending the limit of validity presently prescribed by any applicable usury
statute or any other applicable law, with regard to obligations of like
character and amount, then, ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity, so that in no event shall any exaction
be possible under this Deed of Trust or under the Promissory Notes that is in
excess of the current limit of such validity, but such obligation shall be
fulfilled to the limit of such validity. The
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provisions of this paragraph 1.13 shall control every other provision of this
Deed of Trust and of the Promissory Notes.
2.13. NO DEFAULT AFFIDAVITS. At Beneficiary's written request,
Grantor shall deliver to Beneficiary the affidavit of Borrower and/or Grantor
or a principal financial or accounting officer of Borrower and/or Grantor,
swearing that Borrower and/or Grantor knows of no Event of Default (as
hereinafter defined), nor of any default, which after notice or lapse of time
or both would constitute an Event of Default, which has occurred and is
continuing or, if any such default or Event of Default has occurred and is
continuing, specifying the nature and period of existence thereof and the
action Borrower and/or Grantor has taken or proposes to take with respect
thereto and, except as otherwise specified, stating that Grantor has fulfilled
all of Grantor's obligations under this Deed of Trust that are required to be
fulfilled on or prior to the date of such affidavit.
2.14. LEGAL ACTIONS. In the event that Trustee and/or Beneficiary
is made a party, either voluntarily or involuntarily, in any action or
proceeding affecting the Premises, the Promissory Notes, the Secured
Indebtedness, or the validity or priority of this Deed of Trust, Borrower
and/or Grantor shall immediately, upon demand, reimburse Trustee and/or
Beneficiary for all reasonable costs, expenses, and liabilities incurred by
Beneficiary by reason of any such action or proceeding, including reasonable
attorney's fees, and any such amounts paid by Trustee and/or Beneficiary shall
be added to the Secured Indebtedness and shall be secured by this Deed of
Trust.
2.15. USE AND MANAGEMENT OF PREMISES. Grantor shall at all times
operate the buildings and other improvements located upon the Premises as its
ice plant.
2.16. CONVEYANCE OF PREMISES. Grantor shall not by any instrument,
means or device whatsoever, convey, assign, sell, transfer, lease, mortgage or
encumber any or all of its interest in the Premises, whether legal or
equitable, present or future, vested or contingent, without the prior written
consent of Beneficiary or unless otherwise permitted under the Credit
Agreement. Beneficiary's consent to such a transfer, if given, shall not
release or alter in any manner the liability of Grantor or anyone who has
assumed or guaranteed the payment of the Secured Indebtedness or any portion
thereof. At the option of Beneficiary, the Secured Indebtedness shall be
immediately due and payable in the event that Grantor conveys all or any
portion of the Premises or any interest therein, or in the event that Grantor's
equitable title thereto or interest therein shall be assigned, transferred or
conveyed in any manner, or upon the transfer or conveyance of any interest in
Borrower, without obtaining Beneficiary's prior written consent thereto unless
permitted by the Credit Agreement and any waiver or consent for any prior
transfer shall not preclude Beneficiary from declaring the Secured Indebtedness
due and payable for any subsequent transfer.
2.17. ACQUISITION OF COLLATERAL. Grantor shall not acquire any
portion of the personal property covered by this Deed of Trust subject to any
security interest, conditional sales contract, title retention arrangement, or
other charge or lien taking precedence over the security title and lien of this
Deed of Trust unless the same is permitted under the Credit Agreement.
2.18. SALE BY FORECLOSURE OF PRIOR ENCUMBRANCES. In the event that
this Deed of Trust shall now or at any time after the date hereof be
subordinate to any other encumbrance on the Premises, Grantor hereby agrees
that the lien of this conveyance shall extend to the entire interest of Grantor
in the Premises conveyed hereby, and shall extend to the interest of Grantor in
the proceeds from any sale of said Premises, whether by foreclosure of any such
prior encumbrance or otherwise, to the extent any such proceeds exceed the
amount necessary to satisfy such prior encumbrance(s). Any trustee or other
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person conducting any such sale or foreclosure is hereby directed to pay such
excess proceeds to Beneficiary to the extent necessary to pay the Secured
Indebtedness in full, notwithstanding any provision to the contrary contained
in any prior encumbrance.
2.19. HAZARDOUS SUBSTANCES. For purposes of this Section 1.20,
"RELEVANT ENVIRONMENTAL LAWS" shall mean all Federal, state or local statutes,
regulations, rules, judicial determinations and decisions by any judicial,
legislative or executive body of any governmental or quasi-governmental entity,
whether in the past, the present or the future, that in any way relate to the
existence, removal of, or exposure to any hazardous substances at the Premises
or the effects on the environment of the Premises or of any activity now,
previously, or hereafter conducted on the Premises.
(a) To the best of Grantor's knowledge, there are presently no violations
of the Relevant Environmental Laws at the Premises and Grantor hereby
represents and agrees that the Premises and all operations thereon
comply and shall continue to comply strictly in all respects with the
Relevant Environmental Laws.
(b) Grantor is not aware of any claims or litigation related to, and has
not received any communication from any person concerning any
violation or alleged violation of, Relevant Environmental Laws at the
Premises which have not been rectified to the satisfaction of the
applicable regulatory authority. Grantor shall immediately notify
Beneficiary of any such claims and shall furnish Beneficiary a copy of
any such communication received after the date of this Deed of Trust.
(c) All permits required for the Premises pursuant to the Relevant
Environmental Laws have been obtained and are in full force and effect
and will remain so and any necessary permits will be obtained in the
future when required.
(d) In the event any expert or consultant retained by Beneficiary to audit
the Premises discovers a violation of Relevant Environmental Laws at
the Premises, Grantor shall expeditiously carry out all written
recommendations of said expert or consultant to remedy said violation.
If Grantor fails to do so, within a reasonable period of time to carry
out such recommendation, subject to applicable notice and cure
periods, Beneficiary may, but shall not be obligated to, exercise its
rights to do any one or more of the following: (i) elect that such
failure constitutes an Event of Default pursuant to this Deed of
Trust, or (ii) take any and all actions, at Grantor's expense, that
Beneficiary deems necessary or desirable to cure said failure of
compliance. No such action shall be a waiver of any right of
Beneficiary hereunder or otherwise available, including, without
limitation, the right to elect that such present or any future
violation shall constitute an Event of Default under this Deed of
Trust.
ARTICLE III
3.01. EVENTS OF DEFAULT. The terms "DEFAULT," "EVENT OF DEFAULT" or
"EVENTS OF DEFAULT," wherever used in this Deed of Trust, shall mean any one or
more of the following events:
(a) Failure by Borrower to pay as and when due and payable, subject to
applicable notice and cure period, any portion of the Secured
Indebtedness, as applicable; or
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(b) Failure by Grantor duly to observe or perform any other term,
covenant, condition, or agreement of this Deed of Trust, provided, any
such failure, other than failure to fully perform any provision of
Section 1.03 above, shall not be deemed an Event of Default hereunder
until the delivery of written notice thereof to Borrower and the
failure of Borrower to cure such default within thirty (30) days of
the date of such notice; or
(c) Failure by Borrower duly to observe or perform any respective term,
covenant, condition, or agreement in any of the Loan Documents or any
other instrument or agreement now or hereafter evidencing, securing,
or otherwise relating to the Promissory Notes, this Deed of Trust, or
the Secured Indebtedness, as applicable within the period for
performance and any grace period specified therein; or
(d) The occurrence of an event of default under any of the Loan Documents
or any other instrument or agreement now or hereafter evidencing,
securing or otherwise relating to the Promissory Notes or the Secured
Indebtedness subject to applicable notice and cure periods; or
(e) Any warranty of Grantor contained in this Deed of Trust, or in any
other instrument, document, transfer, conveyance, assignment or loan
agreement given by Borrower with respect to the Secured Indebtedness,
proving to be untrue or misleading in any material respect; or
(f) The Premises are subject to actual or threatened waste, or any
material part thereof is removed, demolished, or altered without the
prior written consent of Beneficiary; or
(g) Any claim of priority to this Deed of Trust, by title or lien, is
asserted in any legal or equitable proceeding; or
(h) The filing by Borrower or any endorser or guarantor of the Promissory
Notes of a voluntary petition in bankruptcy or Borrower's or any such
endorser's or guarantor's adjudication as a bankrupt or insolvent; or
the filing by Borrower or any endorser or guarantor of the Promissory
Notes of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future
federal, state or other law or regulation relating to bankruptcy,
insolvency or other relief for debtors; or Borrower's or any such
endorser's or guarantor's seeking or consenting to or acquiescing in
the appointment of any trustee, receiver or liquidator of Borrower or
any such endorser or guarantor, or of all or any substantial part of
the Premises or of any or all of the rents, issues, profits, or
revenues thereof; or the making by Borrower or any such endorser or
guarantor of any general assignment for the benefit of creditors; or
the admission in writing by Borrower or any such endorser or guarantor
of its or their inability to pay its or their debts generally as they
become due; or the commission by Borrower or any such endorser or
guarantor of an act of bankruptcy; or
(i) The entry by a court of competent jurisdiction of an order, judgment
or decree approving a petition filed against Borrower or any endorser
or guarantor of the Promissory Notes seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future federal, state or other law
or regulation relating to bankruptcy, insolvency or other relief for
debtors or the appointment of any trustee, receiver or liquidator of
Borrower or any endorser or guarantor of the Promissory Notes, or of
all or any substantial part of the Premises or of any or all of the
rents, issues, profits or revenues thereof without the
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consent or acquiescence of Borrower or any endorser or guarantor of
the Promissory Notes, as the case may be; or
(j) Borrower is liquidated or dissolved or its charter expires or is
revoked or any guarantor of the Promissory Notes dies or seeks to
cancel or deny liability under the guaranty.
3.02. ACCELERATION OF MATURITY. If an Event of Default shall have
occurred and be continuing, then the entire Secured Indebtedness shall, at the
option of Beneficiary, immediately become due and payable without notice or
demand, time being of the essence of this Deed of Trust, and no omission on the
part of Beneficiary to exercise such option when entitled to do so shall be
construed as a waiver of such right.
3.03. RIGHT TO ENTER AND TAKE POSSESSION.
(a) If an Event of Default shall have occurred and be continuing, Grantor,
upon demand of Beneficiary, shall forthwith surrender to Beneficiary
the actual possession of the Premises and if, and to the extent
permitted by law, Beneficiary itself, or by such officers or agents as
it may appoint, may enter and take possession of all or any part of
the Premises without the appointment of a receiver or an application
therefor, and may exclude Grantor and its agents and employees wholly
therefrom, and have joint access with Grantor to the books, papers,
and accounts of Grantor;
(b) If Grantor shall for any reason fail to surrender or deliver the
Premises or any part thereof after such demand by Beneficiary,
Beneficiary may obtain a judgment or decree conferring upon
Beneficiary the right to immediate possession or requiring Grantor to
deliver immediate possession of the Premises to Beneficiary, and
Grantor hereby specifically consents to the entry of such judgment or
decree. Grantor will pay to Beneficiary, upon demand, all reasonable
expenses of obtaining such judgment or decree, including reasonable
compensation to Beneficiary, its attorneys and agents, and all such
expenses and compensation shall, until paid, become part of the
Secured Indebtedness and shall be secured by this Deed of Trust;
(c) Upon every such entering upon or taking of possession, Beneficiary may
hold, store, use, operate, manage, and control the Premises and
conduct the business thereof, all in a reasonable manner and, from
time to time (i) make all necessary and proper maintenance, repairs,
renewals, replacements, additions, betterments, and improvements
thereto and thereon and purchase or otherwise acquire additional
fixtures, personalty, and other property; (ii) contract to keep the
Premises insured; (iii) manage and operate the Premises and exercise
all of the rights and powers of Grantor to the same extent as Grantor
could in its own name or otherwise act with respect to the same; and
(iv) enter into any and all agreements with respect to the exercise by
others of any of the powers herein granted to Beneficiary, all as
Beneficiary from time to time may determine to be in its best
interest. Beneficiary may collect and receive all the rents, issues,
profits, and revenues from the Premises, including those past due as
well as those accruing thereafter, and, after deducting (aa) all
reasonable expenses of taking, holding, managing, and operating the
Premises (including compensation for the services of all persons
employed for such purposes); (bb) the cost of all such maintenance,
repairs, renewals, replacements, additions, betterments, improvements,
purchases and acquisitions; (cc) the cost of such insurance; (dd) such
taxes, assessments, and other similar charges as Beneficiary may at
its option pay; (ee) other proper charges upon the Premises or any
part thereof; and (ff) the reasonable compensation, expenses, and
disbursements of the attorneys and agents of Beneficiary, Beneficiary
shall apply the
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remainder of the monies and proceeds so received by Beneficiary,
first, to the payment of accrued interest; second, to the payment of
other sums required to be paid hereunder; and third, to the payment of
overdue installments of principal. Anything in this paragraph 2.03 to
the contrary notwithstanding, Beneficiary shall not be obligated to
discharge or perform the duties of a landlord to any tenant or incur
any liability as a result of any exercise by Beneficiary of its rights
under this Deed of Trust, and Beneficiary shall be liable to account
only for the rents, incomes, issues and profits actually received by
Beneficiary;
(d) Whenever all such interest, deposits, and principal installments and
other sums due under any of the terms, covenants, conditions, and
agreements of this Deed of Trust shall have been paid and all Events
of Default shall have been cured, Beneficiary shall surrender
possession of the Premises to Grantor, its successors or assigns. The
same right of taking possession, however, shall exist if any
subsequent Event of Default shall occur and be continuing.
3.04. PERFORMANCE BY BENEFICIARY. If Borrower and/or Grantor shall
default in the payment, performance or observance of any term, covenant or
condition of this Deed of Trust, Beneficiary may, at its option, pay, perform
or observe the same, and all reasonable payments made or costs or expenses
incurred by Beneficiary in connection therewith, with interest thereon at the
Maximum Rate provided in the Promissory Notes, shall be secured hereby and
shall be, upon written demand, immediately repaid by Borrower and/or Grantor to
Beneficiary. Beneficiary shall be the sole judge of the necessity for any such
actions and of the amounts to be paid. Beneficiary is hereby empowered to
enter and to authorize others to enter upon the Premises or any part thereof
for the purpose of performing or observing any such defaulted term, covenant or
condition without thereby becoming liable to Grantor or any person in
possession holding under Grantor.
3.05. RECEIVER. If an Event of Default shall have occurred and be
continuing, Beneficiary, upon application to a court of competent jurisdiction,
shall be entitled as a matter of strict right, without notice and without
regard to the occupancy or value of any security for the Secured Indebtedness
or the solvency of any party bound for its payment, to the appointment of a
receiver to take possession of and to operate the Premises and to collect and
apply the rents, issues, profits, and revenues thereof. The receiver shall
have all of the rights and powers permitted under the laws of the state wherein
the Land is situated. Borrower and/or Grantor will pay unto Beneficiary upon
demand all reasonable expenses, including receiver's fees, attorneys' fees,
costs, and agents' compensation, incurred pursuant to the provisions of this
paragraph 2.05, and any such amounts paid by Borrower and/or Grantor shall be
added to the Secured Indebtedness and shall be secured by this Deed of Trust.
3.06. ENFORCEMENT.
(a) If any Event of Default shall have occurred and be continuing,
Trustee, or the agent or successor of Trustee, at the request of
Beneficiary shall sell the Premises or any part of the Premises at one
or more public sales before the door of the courthouse of the county
in which the Land or any part of the Land is situated, to the highest
bidder for cash (or credit upon the Secured Indebtedness if
Beneficiary is the successful bidder), and in bar of the right of
redemption (statutory or otherwise), the equity of redemption,
homestead, dower, elective or distributing share, any right of
appraisement or valuation, and all other rights and exemptions of
every kind, all of which are hereby expressly waived, in order to pay
the Secured Indebtedness and all expenses of sale and of all
proceedings in connection therewith, including reasonable attorneys'
fees, after advertising the time, place and terms of sale at least
three (3) different times in some newspaper of general circulation in
Memphis, Tennessee, the first of which publications shall be
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at least twenty (20) days previous to said sale. At any such public
sale, Beneficiary, may execute and deliver to the purchaser a
conveyance of the Premises or any part of the Premises in fee simple.
In the event of any sale under this Deed of Trust by virtue of the
exercise of the powers herein granted, or pursuant to any order in any
judicial proceedings or otherwise, the Premises may be sold as an
entirety or in separate parcels and in such manner or order as
Beneficiary in its sole discretion may elect, and if Beneficiary so
elects, Trustee or Beneficiary may sell the personal property covered
by this Deed of Trust at one or more separate sales in any manner
permitted by the Uniform Commercial Code as enacted in the state of
Tennessee and one or more exercises of the powers herein granted shall
not extinguish or exhaust such powers, until the entire Premises are
sold or the Secured Indebtedness is paid in full. If the Secured
Indebtedness is now or hereafter further secured by any chattel
mortgages, pledges, contracts of guaranty, assignments of lease or
other security instruments, Beneficiary at its option may exhaust the
remedies granted under any of said security instruments or this Deed
of Trust either concurrently or independently, and in such order as
Beneficiary may determine.
Said sale may be adjourned by the Trustee, or its agent or successors,
and reset at a later date without additional publication; provided
that an announcement to that effect be made at the scheduled place of
sale at the time and on the date the sale is originally set.
(b) If an Event of Default shall have occurred and be continuing,
Beneficiary may, in addition to and not in abrogation of the rights
covered under subparagraph (a) of this paragraph 2.06, either with or
without entry or taking possession as herein provided or otherwise,
proceed by a suit or suits in law or in equity or by any other
appropriate proceeding or remedy (i) to enforce payment of the
Promissory Notes or the performance of any term, covenant, condition
or agreement of this Deed of Trust or any other right, and (ii) to
pursue any other remedy available to it, all as Beneficiary in its
sole discretion shall elect.
3.07. PURCHASE BY BENEFICIARY. Upon any foreclosure sale or sale of
all or any portion of the Premises under the power herein granted, Beneficiary
may bid for and purchase the Premises and shall be entitled to apply all or any
part of the Secured Indebtedness as a credit to the purchase price.
3.08. APPLICATION OF PROCEEDS OF SALE. In the event of a
foreclosure or other sale of all or any portion of the Premises, the proceeds
of said sale shall be applied, first, to the reasonable expenses of such sale
and of all proceedings in connection therewith, including reasonable fees of
the attorney and trustee (and attorney and trustee fees and expenses shall
become absolutely due and payable whenever foreclosure is commenced); then to
insurance premiums, liens, assessments, taxes and charges including utility
charges advanced by Beneficiary, and interest thereon; then to payment of the
Secured Indebtedness and accrued interest thereon, in such order of priority as
Beneficiary shall determine, in its sole discretion; and finally the remainder,
if any, shall be paid to Borrower, or to the person or entity lawfully entitled
thereto.
3.09. GRANTOR AS TENANT HOLDING OVER. In the event of any such
foreclosure sale or sale under the powers herein granted, Grantor (if Grantor
shall remain in possession) shall be deemed a tenant holding over and shall
forthwith deliver possession to the purchaser or purchasers at such sale or be
summarily dispossessed according to provisions of law applicable to tenants
holding over.
3.10. WAIVER OF APPRAISEMENT, VALUATION, ETC. Grantor agrees, to
the full extent permitted by law, that in case of a default on the part of
Grantor hereunder, neither Grantor nor anyone claiming through or under Grantor
will set up, claim or seek to take advantage of any appraisement, valuation,
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stay, extension, homestead, exemption, or redemption 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 Premises, or the delivery of
possession thereof immediately after such sale to the purchaser at such sale,
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 subject to the security
interest of this Deed of Trust marshaled upon any foreclosure or sale under the
power herein granted.
3.11. LEASES. Beneficiary, at its option, is authorized to
foreclose this Deed of Trust subject to the rights of any tenants of the
Premises, and the failure to make any such tenants parties to any such
foreclosure proceedings and to foreclose their rights will not be, nor be
asserted to be by Grantor, a defense to any proceeding instituted by
Beneficiary to collect the sums secured hereby.
3.12. DISCONTINUANCE OF PROCEEDINGS. In case Beneficiary shall
have proceeded to enforce any right, power or remedy under this Deed of Trust
by foreclosure, entry, or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to Beneficiary, then in every such case, Grantor, Trustee, and
Beneficiary shall be restored to their former positions and rights hereunder,
and all rights, powers and remedies of Beneficiary shall continue as if no such
proceeding had occurred.
3.13. REMEDIES CUMULATIVE. No right, power, or remedy conferred
upon or reserved to Beneficiary by this Deed of Trust is intended to be
exclusive of any other right, power, or remedy, but each and every such right,
power, and remedy shall be cumulative and concurrent and shall be in addition
to any other right, power, and remedy given hereunder or now or hereafter
existing at law, in equity, or by statute.
3.14. WAIVER.
(a) No delay or omission by Beneficiary or by any holder of the Promissory
Notes to exercise any right, power or remedy accruing upon any default
shall exhaust or impair any such right, power or remedy or shall be
construed to be a waiver of any such default, or acquiescence therein,
and every right, power, and remedy given by this Deed of Trust to
Beneficiary may be exercised from time to time and as often as may be
deemed expedient by Beneficiary. No consent or waiver expressed or
implied by Beneficiary to or of any breach or default by Grantor in
the performance of the obligations of Grantor hereunder shall be
deemed or construed to be a consent or waiver to or of any other
breach or default in the performance of the same or any other
obligations of Borrower and/or Grantor hereunder. Failure on the part
of Beneficiary to complain of any act or failure to act or failure to
declare an Event of Default, irrespective of how long such failure
continues, shall not constitute a waiver by Beneficiary of its rights
hereunder or impair any rights, powers, or remedies of Beneficiary
hereunder.
(b) No acts or omission by Trustee or Beneficiary shall release,
discharge, modify, change, or otherwise affect the original liability
under the Promissory Notes or this Deed of Trust or any other
obligation of Borrower and/or Grantor or any subsequent purchaser of
the Premises or any part thereof, or any maker, cosigner, endorser,
surety, or guarantor, nor preclude Trustee and/or Beneficiary from
exercising any right, power or privilege herein granted or intended to
be granted in the event of any default then existing or of any
subsequent default, nor alter the lien of this Deed of Trust, except
as expressly provided in an instrument or instruments executed by
Beneficiary. Without limiting the generality of the foregoing,
Beneficiary may (i) grant forbearance or an extension of time for the
payment of all or any portion of the Secured
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Indebtedness; (ii) take other or additional security for the payment
of any of the Secured Indebtedness; (iii) waive or fail to exercise
any right granted herein or in the Promissory Notes; (iv) release any
part of the Premises from the security interest or lien of this Deed
of Trust or otherwise change any of the terms, covenants, conditions
or agreements of the Promissory Notes or this Deed of Trust; (v)
consent to the filing of any map, plat, or replat affecting the
Premises; (vi) consent to the granting of any easement or other right
affecting the Premises; (vii) make or consent to any agreement
subordinating the security title or lien hereof, or (viii) take or
omit to take any action whatsoever with respect to the Promissory
Notes, this Deed of Trust, the Premises, or any document or instrument
now or hereafter evidencing, securing or in any way related to the
Secured Indebtedness, all without releasing, discharging, modifying,
changing, or affecting any such liability, or precluding Beneficiary
from exercising any such right, power or privilege or affecting the
lien of this Deed of Trust. In the event of the sale or transfer by
operation of law or otherwise of all or any part of the Premises,
Beneficiary, without notice, is hereby authorized and empowered to
deal with any such vendee or transferee with reference to the Premises
or the Secured Indebtedness, or with reference to any of the terms,
covenants, conditions, or agreements hereof, as fully and to the same
extent as it might deal with the original parties hereto and without
in any way releasing or discharging any liabilities, obligations or
undertakings.
3.15. SUITS TO PROTECT THE PREMISES. Beneficiary shall have power
to institute and maintain such suits and proceedings as it may deem expedient
(a) to prevent any impairment of the Premises by any acts which may be unlawful
or constitute a default under this Deed of Trust; (b) to preserve or protect
its interest in the Premises and in the rents, issues, profits and revenues
arising therefrom; and (c) to restrain the enforcement of or compliance with
any legislation or other governmental enactment, rule, or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order would impair the security hereunder or be
prejudicial to the interest of Beneficiary.
3.16. PROOFS OF CLAIM. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition,
or other proceedings affecting Grantor, its creditors or its property,
Beneficiary, to the extent permitted by law, shall be entitled to file such
proofs of claim and other documents as may be necessary or advisable in order
to have the claims of Beneficiary allowed in such proceedings for the entire
amount due and payable by Grantor under this Deed of Trust at the date of the
institution of such proceedings and for any additional amount which may become
due and payable by Borrower hereunder after such date.
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ARTICLE IV
4.01. SUCCESSORS AND ASSIGNS; SUCCESSOR TRUSTEE. This Deed of
Trust shall inure to the benefit of and be binding upon Borrower, Trustee, and
Beneficiary and their respective heirs, executors, legal representatives,
successors, successors-in-title, and assigns. Whenever a reference is made in
this Deed of Trust to "Grantor," "Borrower," "Trustee," or "Beneficiary," such
reference shall be deemed to include a reference to the heirs, executors, legal
representatives, successors, successors-in-title, and assigns of Grantor,
Borrower, Trustee, or Beneficiary, as the case may be. In the event of the
death, absence, inability or refusal to act of Trustee, or for any other
reason, Beneficiary at any time and from time to time shall have the right to
name and appoint, by instrument in writing recorded in the appropriate records
in the office(s) in which this Deed of Trust is recorded, a successor to
execute this trust, who shall be vested with all of the right, title, estate,
powers, privileges and duties of the above-named Trustee without the necessity
of any conveyance from the above named Trustee or any successor.
4.02. TERMINOLOGY. All personal pronouns used in this Deed of
Trust, whether used in the masculine, feminine, or neuter gender, shall include
all other genders; the singular shall include the plural, and vice versa.
Titles and Articles are for convenience only and neither limit nor amplify the
provisions of this Deed of Trust, and all references herein to Articles,
paragraphs, or subparagraphs shall refer to the corresponding Articles,
paragraphs, or subparagraphs of this Deed of Trust unless specific reference is
made to Articles, paragraphs, or subparagraphs of another document or
instrument.
4.03. SEVERABILITY. If any provisions of this Deed of Trust or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Deed of Trust and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
4.04. APPLICABLE LAW. This Deed of Trust, and its validity,
enforcement and interpretation, shall be governed by Texas law (without regard
to any conflict of laws principles) and applicable United States federal law,
except to the extent of procedural and substantive maters relating only to the
creation and perfection of liens and security interests in, and the enforcement
of rights and remedies against, the Premises, which matters shall be governed
by the laws of the state of Tennessee.
4.05. NOTICES. Any and all notices, elections, or demands permitted
or required to be made under this Deed of Trust shall be in writing, signed by
the party giving such notice, election or demand, and shall be delivered
personally, or sent by registered or certified mail, to the other party at the
address set forth below, or at such other address as may hereafter be supplied
in writing. The date of personal delivery or the date of mailing, as the case
may be, shall be the date of such notice, election, or demand. For the
purposes of this Deed of Trust:
The address of Grantor is: 0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: X.X. Xxxxx, III
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with a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxxxx
The address of Agent is: X.X. Xxx 0000
Xxx Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
4.06. GREATER ESTATE. In the event that Grantor is the owner of a
leasehold estate or any other estate less than a fee simple with respect to any
portion of the Premises and, prior to the satisfaction of the Secured
Indebtedness and the cancellation of this Deed of Trust of record, Grantor
obtains a greater estate or interest in such portion of the Premises, then,
such greater estate or interest shall automatically and without further action
of any kind on the part of Grantor be and become subject to the lien of this
Deed of Trust.
4.07. REPLACEMENT OF PROMISSORY NOTES. Upon receipt of evidence
reasonably satisfactory to Borrower of the loss, theft, destruction, or
mutilation of the Promissory Notes, and in the case of any such loss, theft, or
destruction, upon delivery of an indemnity agreement reasonably satisfactory to
Borrower or, in the case of any such mutilation, upon surrender and
cancellation of the Promissory Notes, Borrower at Beneficiary's expense will
execute and deliver, in lieu thereof, a replacement note, identical in form and
substance to the Promissory Notes and dated as of the date of the Promissory
Notes, and upon such execution and delivery all references in this Deed of
Trust to the Promissory Notes shall be deemed to refer to such replacement
note.
4.08. ASSIGNMENT. This Deed of Trust is assignable by Beneficiary
and any assignment hereof by Beneficiary shall operate to vest in the assignee
all rights and powers herein conferred upon and granted to Beneficiary.
4.09. TIME OF THE ESSENCE. Time is of the essence with respect to
each and every covenant, agreement, and obligation of Borrower under this Deed
of Trust, the Promissory Notes and any and all other instruments now or
hereafter evidencing, securing or otherwise relating to the Secured
Indebtedness.
4.10. EXTENSIONS, ETC. Borrower and Beneficiary may agree to extend
the time for payment of all or any part of the Secured Indebtedness, or reduce,
rearrange, or otherwise modify the terms of payment thereof, or accept a
renewal note or promissory note therefor, all without notice to or the consent
of any junior lienholder or any other person having an interest in the Premises
subordinate to the lien of this Deed of Trust, and without the consent of
Grantor if Grantor has then parted with title to the Premises. No such
extension, reduction, modification or renewal shall affect the priority of this
Deed of Trust or impair the security hereof in any manner whatsoever, or
release, discharge or otherwise affect in any manner the personal liability of
Borrower to Beneficiary or the liability of any other person now or hereafter
liable for payment of the Secured Indebtedness or any part thereof.
SWI TENNESSEE DEED OF TRUST
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4.11. INDEMNITY.
(a) Borrower agrees to indemnify Beneficiary from and against any and all
claims, losses and liabilities growing out of or resulting from this
Deed of Trust (including, without limitation, enforcement of this Deed
of Trust), except claims, losses or liabilities resulting from the
Beneficiary's gross negligence or willful misconduct.
(b) Upon demand, Borrower will pay to the Beneficiary the amount of any
and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, which the
Beneficiary may incur in connection with the failure by the Borrower
to perform or observe any of the provisions hereof.
4.12. BUSINESS DAYS. If any payment date under the Secured
Indebtedness falls on a day that is not a business day of Beneficiary, or if
the last day of any notice period falls on such a day, the payment shall be due
and the notice period shall end on the next preceding business day of
Beneficiary.
4.13. FINANCING STATEMENT AND FIXTURE FILING. This Deed of Trust
shall constitute a security agreement with respect to (and the Grantor hereby
grants the Beneficiary a security interest in) all personal property and
fixtures included in the Premises as more specifically described in paragraphs
(a), (b), and (c) of the granting clause hereof. The Grantor will, from time
to time, at the request of the Beneficiary, execute any and all financing
statements covering such personal property and fixtures (in a form satisfactory
to the Beneficiary) which the Beneficiary may reasonably consider necessary or
appropriate to perfect its security interest. From the date of its recording,
this Deed of Trust shall be effective as a financing statement filed as a
fixture filing with respect to all goods constituting part of the Premises (as
more particularly described in (b) of the granting clause of this Deed of
Trust) which are or are to become fixtures related to the real estate described
herein. For this purpose, the following information is set forth:
(a) Name and Address of Borrower: Packaged Ice, Inc.
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: X.X. Xxxxx, III
(b) Name and Address of Secured Party: The Frost National Bank, as Agent
X.X. Xxx 0000
Xxx Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
(c) This document covers goods which are or are to become fixtures.
(d) The name of the record owner of the land is Southwestern Ice, Inc.
SWI TENNESSEE DEED OF TRUST
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IN WITNESS WHEREOF, Grantor has executed this Deed of Trust, or has
caused this Deed of Trust to be executed, as of the day and year first above
written.
SOUTHWESTERN ICE, INC., a Texas corporation
By:
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Xxxxx X. Xxxxxx, Chief Executive Officer
STATE OF TEXAS )
)
COUNTY OF BEXAR )
Before me, a Notary Public of the state and county aforesaid,
personally appeared Xxxxx X. Xxxxxx, with whom I am personally acquainted (or
proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged himself to be Chief Executive Officer of SOUTHWESTERN ICE, INC.,
the within named bargainor, a corporation, and that he/she as such Chief
Executive Officer, executed the foregoing instrument for the purpose therein
contained, by signing the name of the corporation by himself/herself as Chief
Executive Officer.
WITNESS MY HAND AND SEAL, at office in San Antonio, Texas, this _____
day of September, 1997.
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NOTARY PUBLIC
My Commission Expires:
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SWI Tennessee Deed of Trust
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EXHIBIT A
Legal Description
SWI TENNESSEE DEED OF TRUST
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