Exhibit 10.9
After Recordation Return to:
& PREPARED BY: SOUTHTRUST BANK
000 XXXXXX XXXXXX
XXXXXX, XX 00000 (228)374-4616
DEED OF TRUST
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BORROWER GRANTOR
CUSTOM PACK, INC CUSTOM PACK, INC
ADDRESS ADDRESS
000 XXXXXXX XXX 000 XXXXXXX XXX
XXXXXX, XX 00000 BILOXI, MS 39530
TELEPHONE NO. IDENTIFICATION NO. TELEPHONE NO. IDENTIFICATION NO.
00-0000000 00-0000000
TRUSTEE: XXXXXXX XXX XXXXX, III
000 XXXXX XXXXXX, XXXXXX, XX 00000
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In consideration of the loan or other credit accommodation hereinafter specified
and any future advances or future Obligations, as defined herein, which may
hereafter be advanced or incurred and the trust hereinafter mentioned and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor hereby irrevocably conveys and warrants to Trustee, his
successors and assigns, in trust, for SOUTHTRUST BANK, 000 XXXXXX XXXXXX,
XXXXXX, XX 00000 (228)374-4616 ("Lender"), the beneficiary under this Deed of
Trust, all of Grantor's present and future estate, right, title and interest in
and to the real property located in XXXXXXXX County, State of Mississippi,
described in Schedule A which is attached to this Deed of Trust and incorporated
herein by this reference, together with all present and future improvements and
fixtures; all tangible personal property, including, without limitation, all
machinery, equipment, building materials, and goods of every nature (excluding
household goods) now or hereafter located on or used in connection with the real
property, whether or not affixed to the land; all privileges, hereditaments, and
appurtenances including all development rights associated with the real
property, whether previously or subsequently transferred to the real property
from other real property or now or hereafter susceptible of transfer from this
real property to other real property; all leases, licenses and other agreements;
all rents, issues and profits; all water, well, ditch, reservoir and mineral
rights and stocks pertaining to the real property (cumulatively "Property"); to
have and to hold the Property and the rights hereby granted for the use and
benefit of Lender, its successors and assigns, until payment in full of all
Obligations secured hereby.
Moreover, in further consideration, Grantor does, for Xxxxxxx and Xxxxxxx's
heirs, representatives, successors, and assigns, hereby expressly warrant,
covenant, and agree with Xxxxxx and Trustee and their successors and assigns as
follows:
1. OBLIGATIONS. This Deed of Trust shall secure the payment and performance of
all present and future indebtedness, liabilities, obligations and covenants of
Borrower or Grantor (cumulatively "Obligations") to Lender pursuant to:
(a) this Deed of Trust and the following promissory notes and other
agreements:
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INTEREST PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN
RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
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VARIABLE $53,665.50 09/13/01 09/13/06 GN/CBB
VARIABLE $1,000,000.00 01/23/01 01/23/02 5219030 74054
VARIABLE $1,320,000.00 07/08/98 07/05/03 5219030 5219030
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(b)all other present or future written agreements with Lender that refer
specifically to this Deed of Trust (whether executed for the same or
different purposes than the foregoing);
(c)any guaranty of obligations of other parties given to Lender now or
hereafter executed that refers to this Deed of Trust;
(d)future advances, whether obligatory or optional, to the same extent as
If made contemporaneously with the execution of this Deed of Trust, made or
extended to or on behalf of Grantor or Borrower. Xxxxxxx agrees that if one
of the Obligations is a line of credit, the lien of this Deed of Trust
shall continue until the line has been terminated notwithstanding the fact
that from time to time (but before termination of the line) no balance may
be outstanding; and
(e)all amendments, extensions, renewals, modifications, replacements or
substitutions to any of the foregoing.
As used in this Paragraph 1, the terms Grantor and Borrower shall include and
also mean any Grantor or Borrower if more than one.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Grantor represents, warrants and
covenants to Lender that:
(a)Grantor has fee simple marketable title to the Property and shall
maintain the Property free of all liens, security interests, encumbrances
and claims except for this Deed of Trust and those described in Schedule B,
which is attached to this Deed of Trust and incorporated herein by
reference, which Grantor agrees to pay and perform in a timely manner;
(b)Grantor is in compliance in all respects with all applicable federal,
state and local laws and regulations, including, without limitation, those
relating to "Hazardous Materials, " as defined herein, and other
environmental matters (the "Environmental Laws"), and neither the federal
government nor the state where the Property is located nor any other
governmental or quasi governmental entity has filed a lien on the Property,
nor are there any governmental, judicial or administrative actions with
respect to environmental matters pending, or to the best of the Grantor's
knowledge, threatened, which involve the Property. Neither Grantor nor, to
the best of Grantor's knowledge, any other party has used, generated,
released, discharged, stored, or disposed of any Hazardous Materials as
defined herein, in connection with the Property or transported any
Hazardous Materials to or from the Property. Grantor shall not commit or
permit such actions to be taken in the future. The term "Hazardous
Materials" shall mean any substance, material, or waste which is or becomes
regulated by any governmental authority including, but not limited to: (i)
petroleum; (ii) friable or nonfriable asbestos; (iii) polychlorinated
biphenyls; (iv) those substances, materials or wastes designated as a
"hazardous substance" pursuant to Section 311 of the Clean Water Act or
listed pursuant to Section 307 of the Clean Water Act or any amendments or
replacements to these statutes; (v) those substances, materials or wastes
defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act or any amendments or replacements to that
statute; and (vi) those substances, materials or wastes defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, or any amendments
or replacements to that statute or any other similar state or federal
statute, rule, regulation or ordinance now or hereafter in effect. Grantor
shall not lease or permit the sublease of the Property to a tenant or
subtenant whose operations may result in contamination of the Property with
Hazardous Materials or toxic substances;
(c)All applicable laws and regulations, including, without limitation, the
Americans with Disabilities Act, 42 U.S.C. Section 12101 et seq. (and all
regulations promulgated thereunder) and all zoning and building laws and
regulations relating to the Property by virtue of any federal, state or
municipal authority with jurisdiction over the Property, presently are and
shall be observed and complied with in all material respects, and all
rights, licenses, permits, and certificates of occupancy (including but not
limited to zoning variances, special exceptions for nonconforming uses, and
final inspection approvals), whether temporary or permanent, which are
material to the use and occupancy of the Property, presently are and shall
be obtained, preserved and, where necessary, renewed;
(d) Grantor has the right and is duly authorized to execute and perform its
Obligations under this Deed of Trust and these actions do not and shall not
conflict with the provisions of any statute, regulation, ordinance, rule of
law, contract or other agreement which may be binding on Grantor at
anytime;
(e) No action or proceeding is or shall be pending or threatened which
might materially affect the Property; and
(f) Grantor has not violated and shall not violate any statute, regulation,
ordinance, rule of law, contract or other agreement (including, but not
limited to, those governing Hazardous Materials) which might materially
affect the Property or Lender's rights or interest in the Property pursuant
to this Deed of Trust.
All of the foregoing representations, warranties and covenants by Grantor shall
continue until Lender has cancelled this Deed of Trust.
3. PRIOR DEEDS OF TRUST. Grantor represents and warrants that there are no prior
deeds of trust affecting any part of the Property except as set forth on
Schedule B attached to this Deed of Trust, which Xxxxxxx agrees to pay and
perform in a timely manner. If there are any prior deeds of trust then Xxxxxxx
agrees to pay all amounts owed, and perform all obligations required, under such
deeds of trust and the indebtedness secured thereby and further agrees that a
default under any prior deed of trust shall be a default under this Deed of
Trust and shall entitle Lender to all rights and remedies contained herein or in
the Obligations to which Xxxxxx would be entitled in the event of any other
default.
4. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN GRANTORS OR BORROWERS.
In the event of a sale, conveyance, lease, contract for deed or transfer to any
person of all or any part of the real property described in Schedule A, or any
interest therein, or of all or any beneficial interest in Borrower or Grantor
(if Borrower or Grantor is not a natural person or persons but is a corporation,
limited liability company, partnership, trust, or other legal entity), Lender
may, at its option, declare the outstanding principal balance of the Obligations
plus accrued interest thereon immediately due and payable. At Lender's request,
Grantor or Borrower, as the case may be, shall furnish a complete statement
setting forth all of its stockholders, members, or partners, as appropriate, and
the extent of their respective ownership interests.
5. ASSIGNMENT OF RENTS. In consideration of the Obligations which are secured by
this Deed of Trust, Grantor absolutely assigns to Lender all Grantor's estate,
right, title, interest, claim and demand now owned or hereafter acquired in all
existing and future leases of the Property (including extensions, renewals and
subleases), all agreements for use and occupancy of the Property (all such
leases and agreements whether written or oral, are hereafter referred to as the
"Leases"), and all guaranties of lessees' performance under the Leases, together
with the immediate and continuing right to collect and receive all of the rents,
income, receipts, revenues, issues, profits and other income of any nature now
or hereafter due (including any income of any nature coming due during any
redemption period) under the Leases or from or arising out of the Property,
including minimum rents, additional rents, percentage rents, parking or common
area maintenance contributions, tax and insurance contributions, deficiency
rents, liquidated damages following default in any Lease, all proceeds payable
under any policy of insurance covering loss of rents resulting from
untenantability caused by destruction or damage to the Property, all proceeds
payable as a result of a lessee's exercise of an option to purchase the
Property, all proceeds derived from the termination or rejection of any Lease in
a bankruptcy or other insolvency proceeding, and all proceeds from any rights
and claims of any kind which Grantor may have against any lessee under the
Leases or any occupants of the Property (all of the above are hereafter
collectively referred to as the "Rents"). This assignment is subject to the
right, power and authority given to the Lender to collect and apply the Rents.
This assignment is recorded in accordance with applicable state law; the lien
created by this assignment is intended to be specific, perfected, and xxxxxx
upon the recording of this Deed of Trust, all as provided by applicable state
law as amended from time to time. As long as there is no default under the
Obligations or this Deed of Trust, Lender grants Grantor a revocable license to
collect all Rents from the Leases when due and to use such proceeds in Grantor's
business operations. However, Lender may at any time require Grantor to deposit
all Rents into an account maintained by Grantor or Lender at Lender's
institution. Upon default in the payment of, or in the performance of, any of
the Obligations, Lender may at its option take possession of the Property and
have, hold, manage, lease and operate the Property on terms and for a period of
time that Lender deems proper. Lender may proceed to collect and receive all
Rents from the property, and Lender shall have full power to make alterations,
renovations, repairs or replacements to the Property as Lender may deem proper.
Lender may apply all Rents in Xxxxxx's sole discretion to payment of the
Obligations or to the payment of the cost of such alterations, renovations,
repairs and replacements and any expenses incident to taking and retaining
possession of the Property periodically and the management and operation of the
Property. Lender may keep the Property properly insured and may discharge any
taxes, charges, claims, assessments and other liens which may accrue. The
expense and cost of these actions may be paid from the Rents received, and any
unpaid amounts shall be added to the principal of the Obligations. These
amounts, together with other costs, shall become part of the Obligations secured
by this Deed of Trust.
6. LEASES AND OTHER AGREEMENTS. Grantor shall not take or fail to take any
action which may cause or permit the termination or the withholding of any
payment in connection with any Lease pertaining to the Property. In addition,
Grantor, without Xxxxxx's prior written consent, shall not: (a) collect any
monies payable under any Lease more than one month in advance; (b) modify any
Lease; (c) assign or allow a lien, security interest or other encumbrance to be
placed upon Grantor's rights, title and interest in and to any Lease or the
amounts payable thereunder; or (d) terminate or cancel any Lease except for the
nonpayment of any sum or other material breach by the other party thereto. If
Grantor receives at any time any written communication asserting a default by
Grantor under a Lease or purporting to terminate or cancel any Lease, Grantor
shall promptly forward a copy of such communication (and any subsequent
communications relating thereto) to Lender. All such Leases and the amounts due
to Grantor thereunder are hereby assigned to Lender as additional security for
the Obligations. In the event Lender forecloses on the Property or accepts a
deed in lieu of foreclosure, at Lender's option such foreclosure or deed in lieu
thereof may be made subject to any such Lease.
7. COLLECTION OF INDEBTEDNESS FROM THIRD PARTY. Lender shall be entitled to
notify or require Grantor to notify any third party (including, but not limited
to, lessees, licensees, governmental authorities and insurance companies) to pay
Lender any indebtedness or obligation owing to Grantor with respect to the
Property (cumulatively "Indebtedness") whether or not a default exists under
this Deed of Trust. Grantor shall diligently collect the Indebtedness owing to
Grantor from these third parties until the giving of such notification. In the
event that Grantor possesses or receives possession of any instruments or other
remittances with respect to the Indebtedness following the giving of such
notification or if the instruments or other remittances constitute the
prepayment of any Indebtedness or the payment of any insurance or condemnation
proceeds, Grantor shall hold such instruments and other remittances in trust for
Lender apart from its other property, endorse the instruments and other
remittances to Lender, and immediately provide Lender with possession of the
instruments and other remittances. Lender shall be entitled, but not required,
to collect (by legal proceedings or otherwise), extend the time for payment,
compromise, exchange or release any obligor or collateral, or otherwise settle
any of the Indebtedness whether or not an Event of Default exists under this
Deed of Trust. Lender shall not be liable to Grantor for any action, error,
mistake, omission or delay pertaining to the actions described in this paragraph
or any damages resulting therefrom. Notwithstanding the foregoing, nothing
herein shall cause Lender to be deemed a mortgagee-in-possession.
8. USE AND MAINTENANCE OF PROPERTY. Grantor shall take all actions and make any
repairs needed to maintain the Property in good condition. Grantor shall not
commit or permit any waste to be committed with respect to the Property. Grantor
shall use the Property solely in compliance with applicable law and insurance
policies. Grantor shall not make any alterations, additions or improvements to
the Property without Xxxxxx's prior written consent. Without limiting the
foregoing, all alterations, additions and improvements made to the Property
shall be subject to the beneficial interest belonging to Lender, shall not be
removed without Xxxxxx's prior written consent, and shall be made at Grantor's
sole expense.
9. LOSS OR DAMAGE. Grantor shall bear the entire risk of any loss, theft,
destruction or damage (cumulatively "Loss or Damage") to the Property or any
portion thereof from any cause whatsoever. In the event of any Loss or Damage,
Grantor shall, at the option of Lender, repair the affected Property to its
previous condition or pay or cause to be paid to Lender the decrease in the fair
market value of the affected Property.
10. INSURANCE. The Property will be kept insured for its full insurable value
(replacement cost) against all hazards including loss or damage caused by flood,
earthquake, tornado and fire, theft or other casualty to the extent required by
Lender. Grantor may obtain insurance on the Property from such companies as are
acceptable to Lender in its sole discretion. The insurance policies shall
require the insurance company to provide Lender with at least thirty (30) days'
written notice before such policies are altered or cancelled in any manner. The
insurance policies shall name Lender as a loss payee and provide that no act or
omission of Grantor or any other person shall affect the right of Lender to be
paid the insurance proceeds pertaining to the loss or damage of the Property. In
the event Grantor fails to acquire or maintain insurance, Lender (after
providing notice as may be required by law) may in its discretion procure
appropriate insurance coverage upon the Property and the insurance cost shall be
an advance payable and bearing interest as described in Paragraph 21 and secured
hereby. Grantor shall furnish Lender with evidence of insurance indicating the
required coverage. Xxxxxx may act as attorney-in-fact for Grantor in making and
settling claims under insurance policies, cancelling any policy or endorsing
Xxxxxxx's name on any draft or negotiable instrument drawn by any insurer. All
such insurance policies shall be immediately assigned, pledged and delivered to
Lender as further security for the Obligations. In the event of loss, Grantor
shall immediately give Lender written notice and Xxxxxx is authorized to make
proof of loss. Each insurance company is directed to make payments directly to
Lender instead of to Lender and Grantor. Lender shall have the right, at its
sole option, to apply such monies toward the Obligations or toward the cost of
rebuilding and restoring the Property. Any amounts may at Lender's option be
applied in the inverse order of the due dates thereof.
11. ZONING AND PRIVATE COVENANTS. Grantor shall not initiate or consent to any
change in the zoning provisions or private covenants affecting the use of the
Property without Xxxxxx's prior written consent. If Grantor's use of the
Property is or becomes a nonconforming use under any zoning provision, Grantor
shall not cause or permit such use to be discontinued or abandoned without the
prior written consent of Lender. Grantor will immediately provide Lender with
written notice of any proposed changes to the zoning provisions or private
covenants affecting the Property.
12. CONDEMNATION. Grantor shall immediately provide Lender with written notice
of any actual or threatened condemnation or eminent domain proceeding pertaining
to the Property. All monies payable to Grantor from such condemnation or taking
are hereby assigned to Lender and shall be applied first to the payment of
Xxxxxx's attorneys' fees, legal expenses and other costs (including appraisal
fees) in connection with the condemnation or eminent domain proceedings and
then, at the option of Lender, to the payment of the Obligations or the
restoration or repair of the Property.
13. XXXXXX'S RIGHT TO COMMENCE OR DEFEND LEGAL ACTIONS. Grantor shall
immediately provide Lender with written notice of any actual or threatened
action, suit, or other proceeding affecting the Property. Grantor hereby
appoints Xxxxxx as its attorney-in-fact to commence, intervene in, and defend
such actions, suits, or other legal proceedings and to compromise or settle any
claim or controversy pertaining thereto. Lender shall not be liable to Grantor
for any action, error, mistake, omission or delay pertaining to the actions
described in this paragraph or any damages resulting therefrom. Nothing
contained herein will prevent Xxxxxx from taking the actions described in this
paragraph in its own name.
14. INDEMNIFICATION. Lender shall not assume or be responsible for the
performance of any of Grantor's obligations with respect to the Property under
any circumstances. Grantor shall immediately provide Lender with written notice
of and indemnify and hold Lender and its shareholders, directors, officers,
employees and agents harmless from all claims, damages, liabilities (including
attorneys' fees and legal expenses), causes of action, actions, suits and other
legal proceedings (cumulatively "Claims") pertaining to the Property (including,
but not limited to, those involving Hazardous Materials). Grantor, upon the
request of Xxxxxx, shall hire legal counsel to defend Xxxxxx from such Claims,
and pay the attorneys' fees, legal expenses and other costs incurred in
connection therewith. In the alternative, Lender shall be entitled to employ its
own legal counsel to defend such Claims at Grantor's cost. Xxxxxxx's obligation
to indemnify Lender under this paragraph shall survive the termination, release
or foreclosure of this Deed of Trust.
15. TAXES AND ASSESSMENTS. Grantor shall pay all taxes and assessments relating
to the Property when due and immediately provide Lender evidence of payment of
same. Upon the request of Xxxxxx, Grantor shall deposit with Lender each month
one-twelfth (1/12) of the estimated annual insurance premium, taxes and
assessments pertaining to the Property. So long as there is no default, these
amounts shall be applied to the payment of taxes, assessments and insurance as
required on the Property. In the event of default, Lender shall have the right,
at its sole option, to apply the funds so held to pay any taxes or against the
Obligations. Any funds applied may, at Xxxxxx's option, be applied in reverse
order of the due date thereof.
16. INSPECTION OF PROPERTY, BOOKS, RECORDS AND REPORTS. Grantor shall allow
Xxxxxx or its agents to enter upon, examine and inspect the Property and
examine, inspect and make copies of Grantor's books and records pertaining to
the Property from time to time. As part of this right to enter and inspect the
Property, Lender and its agents shall be entitled to perform any tests necessary
to evaluate Grantor's compliance with the representations, warranties, and
covenants contained herein. Grantor shall provide any assistance required by
Lender for these purposes. All of the signatures and information contained in
Grantor's books and records shall be genuine, true, accurate and complete in all
respects. Grantor shall note the existence of Xxxxxx's beneficial Interest in
its books and records pertaining to the Property. Additionally, Grantor shall
report, in a form satisfactory to Lender, such information as Lender may request
regarding Grantor's financial condition or the Property. The information shall
be for such periods, shall reflect Grantor's records at such time, and shall be
rendered with such frequency as Lender may designate. All Information furnished
by Grantor to Lender shall be true, accurate and complete in all respects, and
signed by Grantor if Lender requests.
17. ESTOPPEL CERTIFICATES. Within ten (10) days after any request by Xxxxxx,
Grantor shall deliver to Lender, or any intended transferee of Lender's rights
with respect to the Obligations, a signed and acknowledged statement specifying
(a) the outstanding balance on the Obligations; and (b) whether Grantor
possesses any claims, defenses, set-offs or counterclaims with respect to the
Obligations and, if so, the nature of such claims, defenses, set-offs or
counterclaims. Grantor will be conclusively bound by any representation that
Lender may make to the intended transferee with respect to these matters in the
event that Grantor fails to provide the requested statement in a timely manner.
18. EVENTS OF DEFAULT. An Event of Default shall occur under this Deed of Trust
and the Trustee's power shall become operative in the event that Grantor,
Borrower or any guarantor of the Obligations:
(a) fails to pay any Obligation to Lender when due;
(b) fails to perform any Obligation or breaches any warranty or covenant to
Lender contained in this Deed of Trust or any other present or future
agreement;
(c) destroys, loses or damages the Property in any material respect or
subjects the Property to seizure, confiscation, or condemnation;
(d) seeks to revoke, terminate or otherwise limit its liability under any
guaranty to Lender;
(e) dies, becomes legally incompetent, is dissolved or terminated, becomes
insolvent, makes an assignment for the benefit of creditors, fails to pay
debts as they become due, files a petition under the federal bankruptcy
laws, has an involuntary petition in bankruptcy filed in which Grantor,
Borrower or any guarantor is named, or has property taken under any writ or
process of court;
(f) allows goods to be used, transported or stored on the Property, the
possession, transportation, or use of which, is illegal;
(g) allows any party other than Grantor or Borrower to assume or undertake
any Obligation without the written consent of Lender; or (h) causes Lender
to deem itself insecure due to a significant decline in the value of the
Property; or if Lender, in good faith, for any reason, believes that the
prospect of payment or performance is impaired.
19. RIGHTS OF LENDER ON EVENT OF DEFAULT. Upon the occurrence of an Event of
Default under this Deed of Trust, Lender shall be entitled to exercise one or
more of the following remedies without notice or demand (except as required by
law):
(a) to declare the Obligations immediately due and payable in full, such
acceleration shall be automatic and immediate if the Event of Default is a
filing under the Bankruptcy Code;
(b) to collect the outstanding Obligations with or without resorting to
judicial process;
(c) to require Grantor to deliver and make available to Lender any personal
property or Chattels constituting the Property at a place reasonably
convenient to Grantor and Lender;
(d) to enter upon and take possession of the Property without applying for
or obtaining the appointment of a receiver;
(e) to employ a managing agent of the Property and let the same, either in
Trustee's own name, in the name of Xxxxxx or in the name of Grantor, and
receive the rents, incomes, issues and profits of the Property and apply
the same, after payment of all necessary charges and expenses, on account
of the Obligations;
(f) to pay any sums in any form or manner deemed expedient by Xxxxxx to
protect the security of this Deed of Trust or to cure any default other
than payment of interest or principal on the Obligations;
(g) to foreclose this Deed of Trust judicially or nonjudicially in
accordance with applicable state law;
(h) to set-off Grantor's Obligations against any amounts owed Grantor by
Lender including, but not limited to, monies, instruments, and deposit
accounts maintained with Lender or any currently existing or future
affiliate of Lender;
(i) to make application to a court of competent jurisdiction for
appointment of a receiver, without notice to Grantor and without regard to
the adequacy of the property for repayment; and
(j) to exercise all other rights available to Lender under any other
written agreement or applicable law.
Xxxxxx's rights are cumulative and may be exercised together, separately, and in
any order. To the extent permitted by law, Grantor waives any requirement of
marshalling of assets. At Lender's request, Trustee may sell the Property
conveyed, or a sufficiency thereof, to satisfy the obligations at public
auctions to the highest bidder for cash. "Cash" may include certified checks,
bank checks, wire transfers, or other methods of payment deemed by Trustee in
its discretion to be reasonable. Trustee may act through agents in performing
its duties herein, and such appointment does not need to be in writing or
recorded. Grantor waives Section 111 of the Mississippi Constitution and Section
88-1-55 of the Mississippi Code of 1972 (as the same may be amended from time to
time) as far as they restrict the Trustee from offering at sale more than 160
acres at a time, and Trustee may offer the property conveyed herein as a whole,
regardless of how described. If the Property is located in two or more counties,
or two judicial districts of the same county, Trustee will have full power to
select in which county or judicial district the sale of the property is to be
made, newspaper advertisement published and notice of sale posted. Trustee, in
its discretion, may determine any details of sale not specified herein. Lender
shall have the same right to purchase the Property at the foreclosure sale as
would a purchaser who is not a party to this Deed of Trust, and moreover may bid
at the sale for credit on the Obligations. All payments received by Trustee will
be applied first to the Trustee's reasonable costs of sale, and then as provided
in Paragraph 22 herein. Trustee may adjourn any sale to a later date without
readvertising, by giving notice of the time and place of such continued sale at
the time when and where Trustee shall make such adjournment.
20. SECURITY INTEREST UNDER THE UNIFORM COMMERCIAL CODE. This Deed of Trust
shall be considered a financing statement and a fixture filing pursuant to the
provisions of the Uniform Commercial Code (as adopted in the state where the
Property is located) covering fixtures, chattels, and articles of personal
property now owned or hereafter attached to or to be used in connection with the
Property together with any and all replacements thereof and additions thereto
(the "Chattels"), and Grantor hereby grants Lender a security interest in such
Chattels. The debtor is the Grantor described above. The secured party is the
Lender described above. Upon demand, Grantor shall make, execute and deliver
such security agreements (as such term is defined in said Uniform Commercial
Code) as Lender at any time may deem necessary or proper or required to grant to
Lender a perfected security interest in the Chattels, and upon Grantor's failure
to do so, Lender is authorized to sign any such agreement as the agent of
Grantor. Grantor hereby authorizes Lender to file financing statements (as such
term is defined in said Uniform Commercial Code) with respect to the Chattels,
at any time, without the signature of Grantor. Grantor will, however, at any
time upon request of Xxxxxx, sign such financing statements. Grantor will pay
all filing fees for the filing of such financing statements and for the refiling
thereof at the times required, in the opinion of Xxxxxx, by said Uniform
Commercial Code. If the lien of this Deed of Trust is subject to any security
agreement covering the Chattels, then in the event of any default under this
Deed of Trust, all the right, title and interest of Grantor in and to any and
all of the Chattels is hereby assigned to Lender, together with the benefit of
any deposits or payments now or hereafter made thereof by Grantor or the
predecessors or successors in title of Grantor in the Property.
21. REIMBURSEMENT OF AMOUNTS EXPENDED BY XXXXXX. Xxxxxx, at Xxxxxx's option, may
expend funds (including attorneys' fees and legal expenses) to perform any act
required to be taken by Grantor or to exercise any right or remedy of Lender
under this Deed of Trust. Upon demand, Grantor shall immediately reimburse
Lender for all such amounts expended by Lender together with interest thereon at
the lower of the highest rate described in any Obligation or the highest rate
allowed by law from the date of payment until the date of reimbursement. These
sums shall be included in the definition of Obligations herein and shall be
secured by the beneficial interest granted herein. If the Obligations are paid
after the beginning of publication of notice of sale, as herein provided, or in
the event Lender shall, at its sole option, permit Grantor to pay any part of
the Obligations after the beginning of publication of notice of sale, as herein
provided, then, Grantor shall pay on demand all expenses incurred by the Trustee
and Lender in connection with said publication, including reasonable attorneys'
fees to the attorneys for the Trustee and for the Lender, and a reasonable fee
to the Trustee, and this Deed of Trust shall be security for all such expenses
and fees.
22. APPLICATION OF PAYMENTS. All payments made by or on behalf of Grantor may be
applied against the amounts paid by Xxxxxx (including attorneys' fees and legal
expenses) in connection with the exercise of its rights or remedies described in
this Deed of Trust and then to the payment of accrued and unpaid interest, then
to outstanding principal, as provided in the promissory note or agreement
executed in connection herewith.
23. POWER OF ATTORNEY. Grantor hereby appoints Xxxxxx as its attorney-in-fact to
endorse Grantor's name on all instruments and other documents pertaining to the
Obligations or Deed of Trust. In addition, Xxxxxx shall be entitled, but not
required, to perform any action or execute any document required to be taken or
executed by Grantor under this Deed of Trust. Xxxxxx's performance of such
action or execution of such documents shall not relieve Grantor from any
Obligation or cure any default under this Deed of Trust. All powers of attorney
described in this Deed of Trust are coupled with an interest and are
irrevocable.
24. SUBROGATION OF LENDER. Lender shall be subrogated to the rights of the
holder of any previous lien, security interest or encumbrance discharged with
funds advanced by Lender regardless of whether these liens, security interests
or other encumbrances have been released of record.
25. COLLECTION COSTS. To the extent permitted by law, Grantor agrees to pay
Xxxxxx's reasonable fees and costs, including, but not limited to, fees and
costs of attorneys and other agents (including without limitation paralegals,
clerks and consultants), whether or not such attorney or agent is an employee of
Lender, which are incurred by Lender in collecting any amount due or enforcing
any right or remedy under this Deed of Trust, whether or not suit is brought,
including, but not limited to, all fees and costs incurred on appeal, in
bankruptcy, and for post-judgment collection actions.
26. PARTIAL RELEASE. Lender may release its interest in a portion of the
Property by executing and recording one or more partial releases without
affecting its interest in the remaining portion of the Property. Nothing herein
shall be deemed to obligate Lender to release any of its interest in the
Property (except as required under Paragraph 37), nor shall Lender be obligated
to release any part of the Property if Grantor is in default under this Deed of
Trust.
27. MODIFICATION AND WAIVER. The modification or waiver of any of Grantor's
Obligations or Xxxxxx's rights under this Deed of Trust must be contained in a
writing signed by Xxxxxx. Lender may perform any of Borrower's or Grantor's
Obligations, delay or fail to exercise any of its rights or accept payments from
Grantor or anyone other than Grantor without causing a waiver of those
Obligations or rights. A waiver on one occasion shall not constitute a waiver on
any other occasion. Xxxxxxx's Obligations under this Deed of Trust shall not be
affected if Lender amends, compromises, exchanges, fails to exercise, impairs or
releases any of the Obligations belonging to any Grantor, Borrower or third
party or any of its rights against any Grantor, Borrower or third party or any
of the Property. Xxxxxx's failure to insist upon strict performance of any of
the Obligations shall not be deemed a waiver, and Lender shall have the right at
any time thereafter to Insist upon strict performance.
28. TRUSTEE. Trustee shall not be liable for any error of judgment or act done
by Trustee in good faith, or be otherwise responsible or accountable to Grantor
under any circumstances whatsoever. Trustee shall be entitled to reimbursement
for reasonable expenses incurred by him in the performance of this duties
hereunder and to reasonable compensation for such of his services hereunder as
shall be rendered. Grantor will, from time to time, pay the reasonable
compensation due to Trustee hereunder and reimburse Trustee for, and save him
harmless against, any and all liability and expenses which may be incurred by
him in the performance of his duties. Trustee may resign at any time with or
without cause or notice.
29. SUBSTITUTE TRUSTEE. In case of the death, inability, refusal to act or
absence of the Trustee from the state where the Property is located or In case
the holder of the Obligations shall desire for any reason to remove the Trustee
or any substitute trustee as trustee hereunder and to appoint a new trustee in
his place and stead, the holder of the Obligations is hereby granted full power
to appoint in writing a substitute trustee for said Trustee, and the substitute
trustee shall, when appointed, become successor to all rights of Trustee
hereunder and the same shall become vested in him for the purposes and objects
of this Deed of Trust with all the power, duties and obligations herein
conferred on the Trustee.
30. SUCCESSORS AND ASSIGNS. This Deed of Trust shall be binding upon and inure
to the benefit of Xxxxxxx and Xxxxxx and their respective successors, assigns,
trustees, receivers, administrators, personal representatives, legatees and
devisees.
31. NOTICES. Except as otherwise required by law, any notice or other
communication to be provided under this Deed of Trust shall be in writing and
sent to the parties at the addresses described in this Deed of Trust or such
other address as the parties may designate in writing from time to time. Any
such notice so given and sent by first class mail, postage prepaid, shall be
deemed given the earlier of three (3) days after such notice is sent or when
received by the person to whom such notice is being given.
32. SEVERABILITY. Whenever possible, each provision of this Deed of Trust shall
be Interpreted so as to be effective and valid under applicable state law. If
any provision of this Deed of Trust violates the law or is unenforceable, the
rest of this Deed of Trust shall continue to be valid and enforceable.
33. APPLICABLE LAW. This Deed of Trust shall be governed by the laws of the
state where the Property is located. Unless applicable law provides otherwise,
Grantor consents to the jurisdiction and venue of any court selected by Xxxxxx,
in its sole discretion, located in that state.
34. NO THIRD-PARTY RIGHTS. No person is or shall be a third-party beneficiary of
any provision of this Deed of Trust. All provisions of this Deed of Trust in
favor of Lender are intended solely for the benefit of Xxxxxx, and no third
party shall be entitled to assume or expect that Xxxxxx will waive or consent to
the modification of any provision of this Deed of Trust, in Xxxxxx's sole
discretion.
35. PRESERVATION OF LIABILITY AND PRIORITY. Without affecting the liability of
Xxxxxxxx, Grantor, or any guarantor of the Obligations, or any other person
(except a person expressly released in writing) for the payment and performance
of the Obligations, and without affecting the rights of Lender with respect to
any Property not expressly released in writing, and without impairing in any way
the priority of this Deed of Trust over the interest of any person acquired or
first evidenced by recording subsequent to the recording of this Deed of Trust,
Lender may, either before or after the maturity of the Obligations, and without
notice or consent: release any person liable for payment or performance of all
or any part of the Obligations; make any agreement altering the terms of payment
or performance of all or any part of the Obligations; exercise or refrain from
exercising or waive any right or remedy that Lender may have under this Deed of
Trust; accept additional security of any kind for any of the Obligations; or
release or otherwise deal with any real or personal property securing the
Obligations. Any person acquiring or recording evidence of any interest of any
nature in the Property shall be deemed, by acquiring such interest or recording
any evidence thereof, to have consented to all or any such actions by Xxxxxx.
36. SECURITY FOR OTHER INDEBTEDNESS. X Unless the property described herein
constitutes the Grantor's principal place of residence, this Deed of Trust shall
also secure any and all other indebtedness of Grantor due to Lender with
interest thereon as specified, or of any one of the Grantors should there be
more than one, whether direct or contingent, primary or secondary, sole, joint
or several, now existing or hereafter arising at any time before cancellation of
this Deed of Trust. Such indebtedness may be evidenced by note, open account,
overdraft, endorsement, guaranty or otherwise.
37. DEFEASANCE. Upon the payment and performance in full of all of the
Obligations, Xxxxxx will execute and deliver to Grantor those documents that may
be required to release this Deed of Trust of record. Grantor shall be
responsible to pay any costs of recordation.
38. CONSTRUCTION LOAN. This Deed of Trust is a construction mortgage under the
Uniform Commercial Code, to secure an obligation incurred for the construction
of an improvement on land, including the acquisition costs of land. This Deed of
Trust secures a construction loan, and it will be subject to the terms of a
construction loan agreement between Grantor and Lender. Any materials, equipment
or supplies used or intended for use in the construction, development, or
operation of the Property, whether stored on or off the Property, shall also be
subject to the lien of this Deed of Trust,
39. WAIVER OF HOMESTEAD. Grantor hereby waives all homestead exemptions in the
Property to which Grantor would otherwise be entitled under any applicable law.
40. MISCELLANEOUS. Xxxxxxx and Xxxxxx agree that time is of the essence. Grantor
waives presentment, demand for payment, notice of dishonor and protest except as
required by law. All references to Grantor in this Deed of Trust shall include
all persons signing below. If there is more than one Grantor, their Obligations
shall be joint and several. This Deed of Trust represents the complete
integrated understanding between Grantor and Lender pertaining to the terms and
conditions hereof.
41. JURY TRIAL WAIVER. XXXXXX AND GRANTOR HEREBY WAIVE ANY RIGHT TO TRIAL BY
JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS DEED OF TRUST.
42. ADDITIONAL TERMS:
THE BASE RATE IS NOT NECESSARILY THE LOWEST RATE CHARGED BY THE BANK. THE
BASE RATE ON THE DATE OF THIS NOTE IS 6. 50%. THE RATE OF INTEREST PAYABLE
UNDER THIS NOTE WILL CHANGE TO REFLECT ANY CHANGE IN THE BASE RATE.
43. INDEXING INSTRUCTIONS:
The land affected by the instrument is located in the following sections,
townships, and ranges, and the following quarter-quarter sections,
governmental lots or other applicable subdivisions of each section: LOT 15,
BLOCK 3, BILOXI REAL ESTATE CO S/D, 2ND JUDICIAL DISTRICT, XXXXXXXX COUNTY,
MS
Xxxxxxx acknowledges that Xxxxxxx has read, understands, and agrees to the terms
and conditions of this Deed of Trust, and acknowledges receipt of an exact copy
of same.
Dated this 13th day of September, 2001
GRANTOR: CUSTOM PACK, INC GRANTOR:
By: /s/ Xxxxx Xxxxxxxxx
---------------------------- --------------------------------
XXXXX XXXXXXXXX
PRESIDENT
GRANTOR: GRANTOR:
-------------------------------- --------------------------------
GRANTOR: GRANTOR:
-------------------------------- --------------------------------
GRANTOR: GRANTOR:
-------------------------------- --------------------------------
--------------------------------------------------------------------------------
ACKNOWLEDGMENTS
STATE OF MISSISSIPPI )
COUNTY OF ____________ )
Personally appeared before me, the undersigned authority in and for the said
county and state, on this _______ day of ___________________________, _________,
within my jurisdiction, the within named ______________________________________,
who acknowledged that (he)(she)(they) executed the above and foregoing
instrument.
____________________________________
Notary Public
My Commission Expires:___________________
STATE OF MISSISSIPPI )
COUNTY OF ____________ )
Personally appeared before me, the undersigned authority in and for the said
county and state, on this _______ day of ___________________________, _________,
within my jurisdiction, the within named ______________________________________,
who acknowledged that (he)(she)(they) executed the above and foregoing
instrument.
____________________________________
Notary Public
My Commission Expires:___________________
STATE OF MISSISSIPPI )
COUNTY OF XXXXXXXX )
Personally appeared before me, the undersigned authority in and for the said
county and state, on this 13TH day of September, 2001, within my jurisdiction,
the within named Xxxxx Xxxxxxxxx, who acknowledged that (he)(she)(they) is the
President of Custom Pack corporation, and that for and on behalf of the said
corporation, and as its act and deed (he)(she)(they) executed the above and
foregoing instrument, after first having been duly authorized by said
corporation so to do.
/s/ Xxxxxx X. XxXxxxxx
------------------------------------
Notary Public
NOTARY PUBLIC STATE OF MISSISSIPPI AT LARGE
MY COMMISSION EXPIRES: Jul 31, 2005
BONDED THRU NOTARY PUBLIC UNDERWRITERS
STATE OF MISSISSIPPI )
COUNTY OF ____________ )
Personally appeared before me, the undersigned authority in and for the said
county and state, on this _______ day of ___________________________, _________,
within my jurisdiction, the within named ______________________________________,
who acknowledged that (he)(she)(they) is the who acknowledged that
(he)(she)(they) is _________________ of ____________________ a _________________
corporation, and that for and on behalf of the said corporation, and as its act
and deed (he)(she)(they) executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
____________________________________
Notary Public
My Commission Expires:___________________
SCHEDULE A
The real estate located in the County of XXXXXXXX, state of Mississippi,
described as:
SEE ATTACHED EXHIBIT "A".
SCHEDULE B
1ST AND 2ND DEED OF TRUST IN FAVOR OF SOUTHTRUST BANK.
THIS DOCUMENT WAS PREPARED BY: & PREPARED BY: SOUTHTRUST BANK
000 XXXXXX XXXXXX
XXXXXX, XX 00000 (228)374-4616
