EXHIBIT 4.114
Prepared by and mail to:
Xxxxxxxx Chance US LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Indexing Instructions:
Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx,
XXXXXXXXXX COUNTY, MISSISSIPPI
DEED OF TRUST, ASSIGNMENT OF LEASES,
SECURITY AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING
THIS DEED OF TRUST (this "Instrument") entered into as of the
15th day of May, 2003 but effective as of the 19(th) day of May, 2003 by
MARCONI COMMUNICATIONS, INC. (formerly known as Reliance Comm/Tec Corporation),
a Delaware corporation ("Trustor"), having an address at c/o Marconi
Corporation plc, Xxx Xxxxxx Xxxxxx, Xxxxxx X0X 0XX Xxxxxx Xxxxxxx, to XXXXXX X.
XXXXX ("Trustee"), having an address at c/o Robertshaw Noble et. al., 000 Xxxxx
Xxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxxx, XX 00000, for the use and benefit of
THE LAW DEBENTURE TRUST CORPORATION p.l.c., a public limited company organized
under the laws of England and Wales, as Security Trustee for the Secured
Creditors (as defined in the Intercreditor Agreement) (together with any
co-trustee, co-agent or other entity that may be appointed after the date
hereof pursuant to clause 16 of the Intercreditor Agreement (as defined below))
("Beneficiary") under the Security Trust and Intercreditor Deed dated the date
hereof and made among Marconi Corporation plc as Issuer; Beneficiary; the
persons listed in Schedule 1 thereto as Guarantors; Law Debenture Trust Company
of New York as Senior Note Trustee; JPMorgan Chase Bank as Junior Note Trustee;
HSBC Bank plc as New Bonding Facility Agent; The Bank of New York as
Depositary, Paying Agent and Registrar; the persons listed in Part A Schedule 2
thereto as Intra-Group Creditors; the persons listed in Part B Schedule 2
thereto as Intra-Group Borrowers and the persons listed in Schedule 3 thereto
as New Bonding Facility Banks (as amended, modified or supplemented from time
to time, the "Intercreditor Agreement"), having an address at Xxxxx Xxxxx, 000
Xxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx. Capitalized terms used herein
without definition shall have the respective meanings assigned to such terms in
the Intercreditor Agreement.
W I T N E S S E T H:
WHEREAS, Trustor is a United States wholly-owned subsidiary of
Marconi Corporation, plc (the "Issuer"), which is the Issuer under the
Indentures, the Notes and the New Bonding Facility Agreement;
WHEREAS, as of the date hereof and in favor of Beneficiary,
Trustor has entered into a Guarantee of the Senior Notes and Senior Note
Indenture, a Guarantee of the Junior Notes and the Junior Note Indenture and a
Composite Guarantee of certain other obligations under the Relevant Documents,
including the New Bonding Facility Agreement (collectively, the "Guarantees"),
pursuant to which Trustor has agreed to guarantee the "Guaranteed Obligations"
(as such term is defined in each of the Guarantees) and has agreed to secure the
Guaranteed Obligations and other obligations;
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WHEREAS, Trustor has received substantial benefit from the
Secured Obligations (as defined below) secured hereby, which consist of, among
other things, term notes and a revolving bonding facility, made in the aggregate
principal amount of up to One Billion Two Hundred Eighty-Four Million Nine
Hundred Twenty-Five Thousand and No/100 Dollars (U.S. $1,284,925,000.00), with a
maturity date of October 31, 2008; and
WHEREAS, Beneficiary and the Secured Creditors have required
that Trustor execute and deliver this Instrument (i) in order to secure the
prompt and complete payment, observance and performance of all of the Secured
Obligations (as defined below) and (ii) as a condition precedent to Beneficiary
and the Secured Creditors entering into the Relevant Documents.
GRANTING CLAUSE
NOW, THEREFORE, in consideration of the existing and future
indebtedness herein recited, Trustor hereby conveys and warrants unto Trustee,
in trust for the use and benefit of Beneficiary, with power of sale and right of
entry and possession, all of Trustor's present and future estate, right, title
and interest in and to the Mortgaged Property (as hereinafter defined) now
owned, or hereafter acquired by Trustor, including the following described real
estate in Washington County, Mississippi (the "State"):
See Exhibit A attached hereto and by this reference made a
part hereof which real estate (the "Land"), together with all right, title and
interest, if any, which Trustor may now have or hereafter acquire in and to all
improvements, buildings and structures thereon of every nature whatsoever, is
herein called the "Premises."
TOGETHER WITH all right, title and interest, if any, including
any after-acquired right, title and interest, and including any right of use or
occupancy, which Trustor may now have or hereafter acquire in and to (a) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, air rights, development rights, water courses,
water rights and powers, and public places adjoining said Land, and any other
interests in property constituting appurtenances to the Premises, or which
hereafter shall in any way belong, relate or be appurtenant thereto and (b) all
hereditaments, gas, oil, minerals (with the right to extract, sever and remove
such gas, oil and minerals), and easements, of every nature whatsoever, located
in or on the Premises and all other rights and privileges thereunto belonging or
appertaining and all extensions, additions, improvements, betterments, renewals,
substitutions and replacements to, or of any rights and interests described in
subparagraph (a) above and this subparagraph (b) (hereinafter collectively
called the "Property Rights").
TOGETHER WITH all xxxxxxxxxx xxxxx, xxxxxxx and development
rights hereafter acquired by Trustor for use in connection with and the
development of the Land, the Premises or the Property Rights and all additional
lands and estates therein which may, from time to time, by supplemental deed of
trust or otherwise, be expressly made subject to the lien of this Instrument.
TOGETHER WITH all right, title and interest, if any, including
any after-acquired right, title and interest which Trustor may now or hereafter
acquire in and to fixtures and appurtenances of every nature whatsoever now or
hereafter located in, on or attached to, and used or intended to be used in
connection with, or with the operation of, the Premises, including, but not
limited to, (a) all apparatus, machinery, and equipment of Trustor; (b) all
extensions, additions, improvements, betterments, renewals, substitutions, and
replacements to or of any of the foregoing (the items described in the foregoing
(a) and (b) being the "Fixtures"); and (c) all personal property and equipment
of every nature whatsoever now or hereafter located in or on the Premises,
including, but not limited to, (i) all screens, window shades, blinds,
wainscoting, storm doors and windows, floor coverings, and awnings of Trustor;
(ii) all apparatus,
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machinery, equipment and appliances of Trustor not included as Fixtures; (iii)
all items of furniture, furnishings, and personal property of Trustor; and (iv)
all extensions, additions, improvements, betterments, renewals, substitutions,
and replacements to or of any of the foregoing (i)-(iii) (the items described in
the foregoing (i)-(iv) and any other personal property referred to in this
paragraph being the "Personal Property") and in and to the proceeds of the
Personal Property. It is mutually agreed, intended and declared that the
Premises and all of the Property Rights and Fixtures owned by Trustor (referred
to collectively herein as the "Real Property") shall, so far as permitted by
law, be deemed to form a part and parcel of the Land and for the purpose of this
Instrument to be real estate and covered by this Instrument. It is also agreed
that if any of the property herein conveyed is of a nature so that a security
interest therein can be perfected under Article 9 of the Uniform Commercial Code
as enacted by the State ("UCC"), this Instrument shall constitute a security
agreement, fixture filing and financing statement, and Trustor agrees to
execute, deliver and file or refile any financing statement, continuation
statement, or other instruments Beneficiary may require from time to time to
perfect or renew such security interest under the UCC. To the extent permitted
by law, (x) all of the Fixtures are or are to become fixtures on the Land; and
(y) this Instrument, upon recording or registration in the real estate records
of the proper office, shall constitute a "fixture-filing" within the meaning of
Sections 9-334 and 9-502 of the UCC. Subject to the terms and conditions of the
Intercreditor Agreement, the remedies for any violation of the covenants, terms
and conditions of the agreements herein contained shall be as prescribed herein
or by general law, or, as to that part of the security in which a security
interest may be perfected under the UCC, by the specific statutory consequences
now or hereafter enacted and specified in the UCC, all at the Beneficiary's sole
election.
TOGETHER WITH all the estate, right, title and interest of the
Trustor, in and to all (i) judgments, insurance proceeds, unearned premiums,
awards of damages and settlements, and any interest thereon, resulting from
condemnation proceedings or the taking of the Real Property, or any part
thereof, under the power of eminent domain or for any damage (whether caused by
such taking or otherwise) to the Real Property, the Personal Property or any
part thereof, or to any rights appurtenant thereto, and all proceeds of any
sales or other dispositions of the Real Property, the Personal Property or any
part thereof; and (subject to the terms of the Intercreditor Agreement) the
Beneficiary is hereby authorized to collect and receive said awards and proceeds
and to give proper receipts and acquittances therefor, and to apply the same as
provided in the Intercreditor Agreement; (ii) contract rights, general
intangibles, actions and rights in action, relating to the Real Property or the
Personal Property, including, without limitation, all rights to insurance
proceeds and unearned premiums arising from or relating to damage to the Real
Property or the Personal Property; and (iii) proceeds, products, replacements,
additions, substitutions, renewals and accessions of and to the Real Property or
the Personal Property. (The rights and interests described in this paragraph
shall hereinafter be collectively called the "Intangibles.")
TOGETHER WITH all the rents, issues and profits of the Real
Property and all rents, issues, profits, revenues, royalties, bonuses, rights
and benefits due, including all rents, revenues, bonus money, royalties, rights,
and benefits accruing to Trustor under all present and future oil, gas and
mineral leases on any part of the Real Property, payable or accruing (including
all deposits of money as advance rent, for security or as xxxxxxx money or as
downpayment for the purchase of all or any part of the Real Property or the
Personal Property) (the "Rents") under any and all Leases (as defined below).
As additional security for the Secured Obligations, Trustor
does hereby pledge and assign to Beneficiary from and after the date hereof
(including any period of redemption), primarily and on a parity with said real
estate, and not secondarily, any and all present and future leases, contracts or
other agreements relating to the ownership of the Real Property or the Personal
Property or to the occupancy of all or any portion of the Real Property and,
except to the extent such a transfer or assignment is not permitted by the terms
thereof (and a consent to the transfer or assignment has not been obtained),
does
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hereby transfer and assign to Beneficiary all such leases, contracts and
agreements (including all Trustor's rights (x) under any contracts for the sale
of any portion of the Mortgaged Property (as hereinafter defined) and (y) to all
revenues and royalties under any oil, gas and mineral leases relating to the
Real Property) (the "Leases"). Trustor further agrees to execute and deliver
such assignments of leases or assignments of land sale contracts as Beneficiary
may from time to time request solely for the purpose of creating, protecting,
perfecting or maintaining an enforceable lien thereon and an enforceable and
valid assignment of Leases. Upon the occurrence of a Trigger Event, (i) the
Trustor agrees, upon demand, to deliver to the Beneficiary all of the Leases
with such additional assignments thereof as the Beneficiary may request and
agrees that the Beneficiary may assume the management of the Real Property,
including taking control of the Leases (provided that such assumption of
management shall be done solely to the extent necessary to collect the Rents in
the event of a Material Default), and (ii) the Trustor hereby authorizes and
directs all tenants, purchasers or other persons occupying or otherwise
acquiring any interest in any part of the Real Property to pay the Rents due
under the Leases to the Beneficiary upon request of the Beneficiary. Trustor
hereby appoints Beneficiary as its true and lawful attorney-in-fact to manage
said property and to control the Leases, with full power to bring suit for
collection of the Rents and possession of the Real Property (provided that such
possession shall be taken solely to the extent necessary to collect such Rents
in the event of a Material Default), giving and granting unto said Beneficiary
and unto its agent or attorney full power coupled with an interest and authority
to do and perform all and every act and thing whatsoever requisite and necessary
to be done in the protection of the security hereby conveyed; provided, however,
that (i) this power of attorney and assignment of Leases shall not be construed
as an obligation upon said Beneficiary to make or cause to be made any repairs
that may be needful or necessary, and (ii) Beneficiary agrees that so long as no
Trigger Event shall have occurred, Beneficiary shall permit Trustor to perform
the aforementioned management responsibilities. Upon Beneficiary's receipt of
the Rents, at Beneficiary's option, it may: (i) pay charges for collection
hereunder, costs of necessary repairs and other costs requisite and necessary
during the continuance of this power of attorney and assignment of Rents, (ii)
pay general and special taxes, insurance premiums, and, thereafter, (iii)
distribute the balance of the Rents pursuant to the provisions of the
Intercreditor Agreement. This power of attorney and assignment of Leases shall
be irrevocable until this Instrument shall have been satisfied and released of
record and the releasing or reconveyance of this Instrument shall act as a
revocation of this power of attorney and assignment of Leases. Subject to
Beneficiary's grant to Trustor of the collection and use of the Rents set forth
above, Beneficiary shall have and hereby expressly reserves the right and
privilege (but assumes no obligation) to demand, collect, xxx for, receive and
recover the Rents, or any part thereof, now existing or hereafter made, and
apply the same in accordance with the provisions of the Intercreditor Agreement.
Notwithstanding anything to the contrary herein, this power of attorney and
assignment of Leases shall be subject and subordinate to Beneficiary's rights
set forth in that certain Assignment of Rents dated of even date herewith, and
if there is any conflict between the terms of this Instrument and the terms of
such Assignment of Rents the terms of such Assignment of Rents shall control For
purposes of this Instrument, a "Trigger Event" shall mean (i) an Enforcement
Event or (ii) a "Material Default" which for purposes of this Instrument shall
mean any event that is (A) an Insolvency Event which is also an Event of Default
or (B) any Event of Default that the Instructing Trustee notifies and instructs
Beneficiary to act in response to pursuant to the Intercreditor Agreement.
Notwithstanding anything herein, upon an Enforcement Event, Beneficiary shall
have the absolute right and option to exercise any and all rights and remedies
provided for in this Instrument and available at law or in equity.
All of the property described above, and each item of property
herein described, and all other rights of Trustor in and to such items of
property, not limited to, but including, the Land, the Premises, the Property
Rights, the Fixtures, the Real Property, the Personal Property, the Intangibles,
the Rents and the Leases, is herein collectively referred to as the "Mortgaged
Property". As used herein, "Secured Obligations" means all present and future
indebtedness, liabilities and obligations (for the
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avoidance of doubt, including any liabilities and obligations that have been
cash-collateralized by the Trustor), at any time of Trustor under the Relevant
Documents (including this Instrument), including any liability in respect of any
further advances, if any, made under the Relevant Documents, both actual and
contingent and whether incurred solely or jointly or in any other capacity
together with any of the following matters relating to or arising in respect of
those liabilities and obligations: (1) any refinancing, novation, deferral or
extension; (2) any obligation relating to any increase in the amount of such
obligations; (3) any claim for damages or restitution; and (4) any claim as a
result of any recovery by Trustor of a payment or discharge, or
non-allowability, on the grounds of preference; and any amounts that would be
included in any of the above but for any discharge, non-provability or
unenforceability of those amounts in any insolvency or other proceedings
(including interest accruing after the commencement of any insolvency or other
proceedings).
This conveyance is in trust to secure prompt payment of all
existing and future Secured Obligations (defined below) due by Trustor to
Beneficiary under the provisions of this Instrument. If Trustor shall satisfy
the conditions set forth in Section 5.3 of the Intercreditor Agreement, then
this conveyance shall be void and of no effect.
Nothing herein contained shall be construed as constituting
the Beneficiary or any of its Delegates or any of the Secured Creditors a
mortgagee-in-possession in the absence of the taking of actual possession of the
Mortgaged Property by the Beneficiary or any of its Delegates or any of the
Secured Creditors. Nothing contained in this Instrument shall be construed as
imposing on Beneficiary any of the obligations of the lessor under any lease of
the Mortgaged Property in the absence of an explicit assumption thereof by
Beneficiary. In the exercise of the powers herein granted the Beneficiary, no
liability shall be asserted or enforced against the Beneficiary, all such
liability being expressly waived and released by Trustor.
TO HAVE AND TO HOLD the Mortgaged Property, properties, rights
and privileges hereby conveyed or assigned, or intended so to be, unto Trustee,
its successors and assigns, for the benefit of Beneficiary, its successors and
assigns, forever upon the trusts, terms and conditions and for the uses and
purposes herein set forth. The conveyance of the Mortgaged Property provided for
herein is made upon this special trust. If the Secured Obligations are paid and
performed in full and completely as and when due in accordance with their
respective terms, the conveyance provided for herein shall be released upon
satisfaction of the conditions set forth in Section 5.3 of the Intercreditor
Agreement and shall be thereafter be null and void and may be canceled of record
at the request and cost of the Trustor and title shall revest as provided by
law. If, however, a Trigger Event shall have occurred, then Beneficiary shall be
entitled to invoke the remedies provided for in this granting clause in
connection with the assignment of Leases and Rents, and if an Enforcement Event
shall have occurred, then Beneficiary shall, in addition to all other rights and
remedies at law or equity provided, be entitled to invoke the remedies provided
for in Article IV below including without limitation the right to foreclose this
Instrument by judicial proceedings or, at Beneficiary's election, the right to
demand that the Trustee foreclose this Instrument through exercise of the power
of sale herein granted to Trustee, and upon such demand by Beneficiary, the
Trustee shall have the right and the duty to foreclose this Instrument as herein
provided. Trustor hereby releases and waives all rights under and by virtue of
the homestead exemption laws of the State.
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The following provisions shall also constitute an
integral part of this Instrument:
ARTICLE I
[RESERVED]
ARTICLE II
COVENANTS OF TRUSTOR
Section 2.01. [RESERVED]
Section 2.02. Leases Affecting the Real Property. All future
lessees under any Lease of the Real Property, or any part thereof, made after
the date of recording of this Instrument shall, at Beneficiary's option and
without any further documentation, attorn to Beneficiary as lessor if for any
reason Beneficiary becomes lessor thereunder, and, thereafter, upon demand, to
pay Rent to Beneficiary, and Beneficiary shall not be responsible under such
Lease for matters arising prior to Beneficiary becoming lessor thereunder. In
respect of each Lease which may be entered into on or after the date hereof, the
lien and estate, as well as the provisions, terms and conditions of each Lease
shall in all respects be subordinate and junior to the lien of this Instrument.
Section 2.03. Further Assurances. Trustor, at its sole cost and
expense, shall (i) upon request of Beneficiary promptly correct any defect or
error which may be discovered in this Instrument or any financing statement or
other document relating hereto solely to the extent necessary to create,
effectuate, complete, perfect, continue or preserve the lien of this Instrument
on the Mortgaged Property, and (ii) promptly execute, acknowledge, deliver,
record and re-record, register and re-register, and file and re-file this
Instrument, any amendment to this Instrument and any financing statements or
other documents which Beneficiary may request in writing from time to time (all
in form and substance reasonably satisfactory to Beneficiary) in order (A) to
create, effectuate, complete, perfect, continue or preserve the lien of this
Instrument as a first priority lien on the Mortgaged Property, whether now owned
or hereafter acquired, subject only to the matters set forth on Exhibit B
attached hereto and made a part hereof and except for the Permitted Liens (as
defined in the Indentures), or (B) to create, effectuate, complete, perfect,
continue, preserve or validate any right, power or privilege granted or intended
to be granted to the Beneficiary hereunder or otherwise accomplish the purposes
of this Instrument. To the extent permitted by law and to the extent that
Trustor fails to do so as required hereunder, the Trustor hereby authorizes
Beneficiary to file financing statements or continuation statements covering the
Mortgaged Property.
Section 2.04. Casualty Proceeds. Trustor hereby assigns to
Beneficiary, as additional security, all proceeds or awards of damage resulting
from a casualty event or condemnation proceedings or the taking of or injury to
the Real Property for public use. All such proceeds or awards paid to
Beneficiary hereunder shall be applied in accordance with the Indentures.
Section 2.05. Inspections. Trustor hereby authorizes Beneficiary,
its agents, employees and representatives, upon reasonable prior written notice
to Trustor (except in an emergency or following the occurrence of any Trigger
Event, in which case notice shall not be required) to visit and inspect the
Mortgaged Property or any portion(s) thereof, all at such reasonable times and
as often as Beneficiary may reasonably request.
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Section 2.06. Indemnity. Trustor hereby indemnifies Beneficiary or
any person designated by it and keep Beneficiary or such person designated by it
indemnified against any and all costs, claims and liabilities which it may incur
as a result of anything done by it as an attorney-in-fact for Trustor in the
proper exercise of any of the powers conferred, or purported to be conferred,
thereon by this Instrument unless such cost, claim or liability arises as a
result of the negligence or wilful misconduct of Beneficiary or such person
designated by it. For clarification purposes, the indemnity in this Section 2.06
shall apply solely in those instances where Beneficiary or a Delegate acts as an
attorney-in-fact for Trustor for purposes of this Instrument.
Section 2.07. After Acquired Property Interests. All right, title
and interest of Trustor in and to all of the Mortgaged Property, hereafter
acquired by Trustor ("After Acquired Property Interests"), immediately upon such
acquisition, without any further mortgage, conveyance, assignment or other act
by Trustor, shall become subject to the lien of this Instrument as fully and
completely, and with the same effect, as though owned by Trustor on the date
hereof and specifically described in the granting clauses hereof. Trustor shall
execute and deliver to Beneficiary all such other deeds of trust or mortgages
and other agreements as Beneficiary may require for the purpose of expressly and
specifically subjecting such After Acquired Property Interests to the lien of
this Instrument. Trustor hereby irrevocably authorizes and appoints Beneficiary
as the agent and attorney-in-fact of Trustor to execute all such documents and
instruments on behalf of Trustor, which appointment shall be irrevocable and
coupled with an interest, if the Trustor fails or refuses to do so within ten
(10) days after written request therefor by Beneficiary.
Section 2.08. Expenses and Costs. Trustor shall, from time to time
and promptly on demand by Beneficiary reimburse to Beneficiary all costs and
expenses (including legal fees) on a full indemnity basis incurred by
Beneficiary and any Delegate in connection with:
1. the execution, release and discharge of this Instrument and
the security created hereby or intended to be created hereby
in respect of the Mortgaged Property and the completion of the
transactions and perfection of the security contemplated in
this Instrument or forming part of the security created hereby
or intended to be created hereby in respect of the Mortgaged
Property;
2. the actual or contemplated exercise, preservation and/or
enforcement of any of the rights, powers and remedies of, or
the performance of the duties and obligations of, Beneficiary
or any Delegate, or any amendment or waiver in respect of this
Instrument;
3. the foreclosure (whether judicial or by power of sale) of any
Mortgaged Property; and
4. the preservation and/or enforcement of the security created
hereby or intended to be created hereby in respect of the
Mortgaged Property,
which shall carry interest from the date of such demand until so reimbursed at
the rate and on the basis as mentioned in Clause 18.4 of the Intercreditor
Agreement.
Section 2.09. Taxes. Trustor shall pay, promptly on demand of
Beneficiary all stamp, registration, notarial and other similar taxes or fees
paid or payable by Beneficiary in connection with any action taken or
contemplated by or on behalf of Beneficiary for perfecting, maintaining,
enforcing, releasing, cancelling, reassigning or resolving any doubt concerning,
or for any other purpose in relation to this Instrument, any amendment thereto,
any transfer and/or assignment of the rights and/or obligations under the same
or the security created hereby or intended to be created hereby in respect of
the Mortgaged Property and shall, from time to time, indemnify Beneficiary
promptly on demand against any liabilities,
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costs, claims and expenses resulting from any failure to pay by Trustor or any
delay by Trustor in paying any such taxes or fees.
ARTICLE III
BENEFICIARY'S RIGHTS
Section 3.01. Performance of Trustor's Obligations. Trustor agrees
that, upon the occurrence of an Enforcement Event, Beneficiary may, but need
not, make any payment or perform any act hereinbefore required of Trustor, in
any form and manner deemed expedient. By way of illustration and not in
limitation of the foregoing, Beneficiary may, but need not, (i) make full or
partial payments of insurance premiums which are unpaid by Trustor, coordinate
liens or encumbrances, if any, (ii) purchase, discharge, compromise or settle
any tax lien or any other lien, encumbrance, suit, proceeding, title or claim
thereof, or (iii) redeem all or any part of the Premises from any tax or
assessment. All moneys paid for any of the purposes herein authorized and all
other moneys advanced by Beneficiary to protect the Mortgaged Property and the
lien hereof shall be additional Secured Obligations and shall become immediately
due and payable without notice and shall bear interest thereon at the rate set
forth in Clause 18.4 of the Intercreditor Agreement until paid to Beneficiary in
full. In making any payment hereby authorized relating to taxes, assessments or
prior or coordinate liens or encumbrances, Beneficiary shall be the sole judge
of the legality, validity and priority thereof and of the amount necessary to be
paid in satisfaction thereof.
ARTICLE IV
REMEDIES & RIGHTS
Section 4.01. Remedies of Beneficiary. Upon the occurrence of an
Enforcement Event, Beneficiary may, without notice to or demand upon Trustor,
declare this Instrument to be in default, and, in addition to all other rights
and remedies at law or in equity available to Beneficiary or as otherwise
provided for in the Intercreditor Agreement or the Indentures, to the extent
permitted by applicable law, the following provisions shall apply:
(a) Beneficiary's Power of Enforcement. It shall be
lawful for Beneficiary to (i) immediately direct the Trustee to sell the
Mortgaged Property, either in whole or in separate parcels, as prescribed by the
State law, under power of sale, which power is hereby granted to Trustee to the
full extent permitted by the State law, or (ii) immediately foreclose this
Instrument by judicial action. The court in which any proceeding is pending for
the purpose of sale under or foreclosure of this Instrument if such remedy is
taken or any court of competent jurisdiction may, at once or at any time
thereafter, either before or after sale, without notice and without requiring
bond, and without regard to the solvency or insolvency of any person liable for
payment of the Secured Obligations, and without regard to the then value of the
Mortgaged Property or the occupancy thereof as a homestead, appoint a receiver
(the provisions for the appointment of a receiver and assignment of rents being
an express condition upon which the Secured Obligations hereby secured are made)
for the benefit of Beneficiary, with power to collect the Rents, due and to
become due, during such foreclosure suit or proceeding for such sale and the
full statutory period of redemption, notwithstanding any redemption. The
receiver, out of the Rents, when collected, may pay costs incurred in the
management and operation of the Real Property, prior and subordinate liens, if
any, and taxes, assessments, water and other utilities and insurance, then due
or thereafter accruing, and may make and pay for any necessary repairs to the
Real Property or the Personal Property, and may pay all or any part of the
Secured Obligations or other sums secured hereby or any deficiency decree
entered in such foreclosure proceedings. Upon or at any time after the filing of
a suit to
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foreclose this Instrument, the court in which such suit is filed shall have full
power to enter an order placing Beneficiary in possession of the Real Property
with the same power granted to a receiver pursuant to this subparagraph and with
all other rights and privileges of a mortgagee-in-possession under applicable
law.
(b) Sale of Mortgaged Property. Subject to the provisions
of the Intercreditor Agreement, upon the occurrence of an Enforcement Event, in
addition to any rights and remedies provided for in the Intercreditor Agreement
or the Indentures, and to the extent permitted by applicable law, the following
provisions shall apply:
(i) Upon the occurrence of an Enforcement Event,
it shall thereupon be the duty of the above named Trustee, or his successor or
substitute, as hereinafter provided, to enforce this trust at the request of the
Beneficiary (which request shall be presumed) and the Trustee shall, sell the
Mortgaged Property conveyed, or a sufficiency thereof, to satisfy the
indebtedness at public outcry to the highest bidder for cash. Sale of the
property shall be advertised for three consecutive weeks preceding the sale in a
newspaper published in the county where the Mortgaged Property is situated, or
if none is so published, then in some newspaper having a general circulation
therein, and by posting a notice for the same time at the courthouse of the same
county. The notice and advertisement shall disclose the names of the original
debtor in this Instrument. Trustor waives the provisions of Section 89-1-55 of
the Mississippi Code of 1972 as amended, if any, as far as this section
restricts the right of Trustee to offer at sale more than 160 acres at a time,
and Trustee may offer the property herein conveyed as a whole, regardless of how
it is described. If the Mortgaged Property is situated in two or more counties,
or in two judicial districts of the same county, Trustee shall have full power
to select in which county, or judicial district, the sale of the property is to
be made, newspaper advertisement published and notice of sale posted, and
Trustee's selection shall be binding upon Trustor and Beneficiary. Should
Beneficiary be a corporation or an unincorporated association, then any officer
thereof may declare Trustor to be in default as provided herein and request
Trustee to sell the Mortgaged Property.
(ii) Subject to the terms and provisions of the
Intercreditor Agreement, the proceeds from any such sale shall be applied by the
Trustee as follows:
FIRST: To the payment of all expenses
of advertising, selling and
conveying the Mortgaged
Property, including a reasonable
commission to the acting
Trustee.
SECOND: To the payment to Beneficiary of
all unpaid Secured Obligations,
including accrued interest to
the date of sale, in such
priority and proportions as
Beneficiary in its discretion
shall deem proper.
THIRD: The balance, if any, shall be
paid to Trustor.
(iii) Trustee hereunder shall have the right to
sell the Mortgaged Property in whole or in part and in such parcels and order as
he may determine, and the right of sale hereunder shall not be exhausted by one
or more sales, but successive sales may be had until all of the Mortgaged
Property have been legally sold. In the event any sale hereunder is not
completed or is defective in the opinion of Beneficiary, such sale shall not
exhaust the power of sale hereunder, and Beneficiary shall have the right to
cause a subsequent sale or sales to be made by Trustee or any successor or
substitute Trustee. Likewise, Beneficiary may become the purchaser at any such
sale if it is the highest bidder, and
9
shall have the right, after paying or accounting for all costs of said sale or
sales, to credit the amount of the bid upon the amount of the Secured
Obligations owing, in lieu of cash payment.
(iv) To the extent that the Mississippi Property
Code, or any amendment thereto or judicial interpretation thereof, requires that
the "fair market value" of the Mortgaged Property shall be determined as of the
foreclosure date in order to enforce a deficiency against Trustor or any other
party liable for the repayment of the Secured Obligations, the term "fair market
value" shall include those matters required by law and shall also include the
additional factors as follows:
(a) The Mortgaged Property is to
be valued "AS IS, WHERE IS" and "WITH ALL
FAULTS" and there shall be no assumption of
restoration of or refurbishment of the
Mortgaged Property after the date of
foreclosure;
(b) There shall be an assumption
of a prompt resale of the Mortgaged Property
for an all cash sales price by the purchaser
at the foreclosure so that no extensive
holding period should be factored into the
determination of "fair market value" of the
Mortgaged Property;
(c) An offset to the fair market
value of the Mortgaged Property, as
determined hereunder, shall be made by
deducting from such value the reasonable
estimated closing costs relating to the sale
of the Mortgaged Property including but not
limited to brokerage commissions, title
policy expenses, tax prorations, escrow
fees, and other common charges which are
incurred by a seller of real property
similar to the Mortgaged Property; and
(d) After consideration of the
factors required by law and those required
above (including the addition of any income
to be generated by the Mortgaged Property),
an additional discount factor shall be
calculated based upon the estimated time it
will take to effectuate a sale of the
Mortgaged Property so that the "fair market
value" as so determined is discounted to be
as of the date of the foreclosure of the
Mortgaged Property.
(c) Additional Provisions Regarding Power of Sale. (i) In
exercising the power of sale herein conferred, after having been instructed by
Beneficiary to do so, the Trustee shall comply with all applicable laws in
effect with respect to the exercise of powers of sale contained in deeds of
trust as of the date of the commencement of the proceeding. Trustor agrees that
in the event of a sale under the power of sale hereunder, Beneficiary shall have
the right to bid thereat. Trustee may require that the successful bidder at any
sale deposit immediately with Trustee cash or certified check in an amount not
to exceed ten percent (10%) of the bid, provided notice of such requirement is
contained in the advertisement of sale. The bid may be rejected if the deposit
is not immediately made, and thereupon the next highest bidder may be declared
to be the purchaser. Such deposit shall be refunded in case a resale is had;
otherwise, it shall be applied to the purchase price. If personal property is
sold hereunder, it need not be at the place of sale; the published notice,
however, shall state the time and place where such personal property may be
inspected prior to sale.
(ii) Notwithstanding the provisions of Section
4.02 of this Instrument, the proceeds of any sale of the Mortgaged Property
pursuant to the power of sale contained herein shall be
10
applied first to the costs and expenses of foreclosure, including, but not
limited to a Trustee's commission equal to five percent (5%) of the highest bid
and to all costs, expenses and reasonable attorneys' fees incurred by the
Trustee and by the Beneficiary in connection with such sale, with the remaining
proceeds to be applied as provided in Section 4.02 of this Instrument. If a
proceeding for sale pursuant to the power of sale contained herein is commenced
by Trustee but terminated prior to its completion or is otherwise not completed,
the Trustor shall pay all expenses incurred by Trustee, including reasonable
attorneys' fees and a partial Trustee's commission equal to the greater of (A)
the reasonable time and expense charges of such Trustee and (B) an amount
computed on the basis of a percentage of the fair market value of the Mortgaged
Property (as such fair market value shall be agreed upon by Trustor and
Beneficiary, or if not agreed upon, then as determined by the Clerk of the
Superior Court with jurisdiction over such matters, upon evidence submitted by
the parties) in accordance with the following schedule, to wit: one tenth of one
percent (.1%) of such fair market value before the Trustee issues a notice of
hearing on the right to sell; eleven one hundredths of one percent (.11%) of
such fair market value after issuance of said notice; twelve one hundredths of
one percent (.12%) of such fair market value after such hearing; and thirteen
one hundredths of one percent (.13%) of such fair market value after the initial
sale.
Section 4.02. Application of the Rents or Proceeds from Foreclosure
or Sale. The Rents and the proceeds of any sale (whether through a foreclosure
proceeding or Beneficiary's exercise of the power of sale) shall be distributed
and applied in accordance with the terms of the Intercreditor Agreement. Subject
to Section 4.01(c)(ii) of this Instrument in any foreclosure of this Instrument
by judicial action, or any sale of the Mortgaged Property under the power of
sale herein granted, subject to the terms and provisions of the Intercreditor
Agreement, there shall be allowed (and included in the decree for sale in the
event of a foreclosure by judicial action) to be paid out of the Rents or the
proceeds of such foreclosure proceeding and/or sale:
(a) Secured Obligations. All of the Secured Obligations
and other sums secured hereby which then remain unpaid;
(b) Other Advances. All other items advanced or paid by
Beneficiary pursuant to this Instrument, with interest thereon at the rate set
forth in Clause 18.4 of the Intercreditor Agreement from the date of
advancement; and
(c) Costs, Fees and Other Expenses. All court costs,
reasonable in-house and outside attorneys' and paralegals' fees and expenses,
costs of environmental surveys and guard or other security services, appraiser's
fees, advertising costs, notice expenses, expenditures for documentary and
expert evidence, stenographer's charges, publication costs, and costs (which may
be estimated as to items to be expended after entry of the decree) of procuring
all abstracts of title, title searches and examinations, title guarantees, title
insurance policies, surveys, and similar data with respect to title which
Beneficiary may deem necessary. All such expenses shall become additional
Secured Obligations and be immediately due and payable, with interest thereon at
the rate set forth in Clause 18.4 of the Intercreditor Agreement, when paid or
incurred by Beneficiary or Trustee in connection with any proceedings,
including, but not limited to, probate and bankruptcy proceedings, to which
Beneficiary or Trustee shall be a party, either as plaintiff, claimant or
defendant, by reason of this Instrument or any indebtedness hereby secured or in
connection with the preparations for the commencement of any suit for the
foreclosure, whether or not actually commenced, or sale under the power of sale
herein granted.
Section 4.03. Cumulative Remedies; Delay or Omission Not a Waiver.
Each remedy or right of Beneficiary shall not be exclusive of, but shall be in
addition to, every other remedy or right now or hereafter existing at law or in
equity. No delay in the exercise or omission to exercise any remedy or right
accruing on the occurrence or existence of any Material Default or Enforcement
Event shall impair
11
any such remedy or right or be construed to be a waiver of any such Material
Default or Enforcement Event or acquiescence therein, nor shall it affect any
subsequent Material Default or Enforcement Event the same or different nature.
Every such remedy or right may be exercised concurrently or independently and
when and as often as may be deemed expedient by Beneficiary. The acceptance by
Beneficiary, any successor administrative agent or any secured party of any
payment less than the amount of the Secured Obligation in question shall be
deemed to be an acceptance on account only and shall not be construed as a
waiver of any Material Default or Enforcement Event with respect thereto, and
the acceptance by Beneficiary, any successor administrative agent or any secured
party of any payment of, or on account of, any Secured Obligation shall not be
deemed to be a waiver of any Material Default or Enforcement Event other
occurrence hereunder or under any Relevant Documents with respect to any other
Secured Obligation. If Beneficiary has proceeded to enforce any remedy or right
hereunder or with respect hereto by foreclosure, sale, entry or otherwise, it
may compromise, discontinue or abandon such proceeding for any reason without
notice to Trustor or any other party (except any other agent, the Secured
Creditors or the other secured parties to the extent required by any Relevant
Documents); and, if any such proceeding shall be discontinued, abandoned or
determined adversely for any reason, Trustor and Beneficiary shall retain and be
restored to their former positions and rights hereunder with respect to the
Mortgaged Property, subject to the lien hereof except to the extent any such
adverse determination specifically provides to the contrary.
Section 4.04. Beneficiary's Remedies against Multiple Parcels. If
more than one property, lot or parcel is covered by this Instrument, and if this
Instrument is foreclosed upon, or judgment is entered upon any Secured
Obligations, or if Trustee effects a trustee's sale under power of sale,
execution may be made upon or Trustee may effect a trustee's sale against any
one or more of the properties, lots or parcels and not upon the others, or upon
all of such properties or parcels, either together or separately, and at
different times or at the same time, and execution sales or trustee's sale
herein granted may likewise be conducted separately or concurrently, in each
case at Beneficiary's election.
Section 4.05. No Merger. In the event of a foreclosure of this
Instrument or any other mortgage or deed of trust securing the Secured
Obligations, the Secured Obligations then due to the Beneficiary shall not be
merged into any decree of foreclosure entered by the court, and Beneficiary may
concurrently or subsequently seek to foreclose one or more other deeds of trust
which also secure said Secured Obligations.
Section 4.06. Waivers by Trustor. To the fullest extent permitted
under applicable law, Trustor shall not assert, and hereby irrevocably waives,
any right or defense Trustor may have under any statute or rule of law or equity
now or hereafter in effect relating to (a) homestead exemption, extension,
moratorium, stay, redemption, marshaling of the Mortgaged Property or the other
assets of Trustor, sale of the Mortgaged Property in any order or notice of
deficiency or intention to accelerate any Secured Obligation, (b) impairment of
any right of subrogation or reimbursement, (c) any requirement that at any time
any action must be taken against any other party, any portion of the Mortgaged
Property or any other asset of Trustor or any other party, (d) any provision
barring or limiting the right of Beneficiary to sell any Mortgaged Property
after any other sale of any other Mortgaged Property or any other action against
Trustor or any other party, (e) any provision barring or limiting the recovery
by Beneficiary of a deficiency after any sale of the Mortgaged Property, (f) any
other provision of applicable law which shall defeat, limit or adversely affect
any right or remedy of Beneficiary or any secured party under or with respect to
this Instrument or any other Relevant Documents as it relates to any Mortgaged
Property, (g) the right of Beneficiary to foreclose this Instrument in its own
name on behalf of all of the secured parties by judicial action as the real
party in interest without the necessity of joining any secured party, or (h) the
Guarantees, including, without limitation, notice of existence, creation or
incurring of any new or additional indebtedness or obligation or of any action
or non-action on the part of Trustor or the Issuer,
12
Beneficiary or any Secured Creditor or on the part of any person whomsoever
under the Intercreditor Agreement, this Instrument or any of the other Relevant
Documents in connection with any obligation or evidence of indebtedness held by
Beneficiary, as Security Trustee for the Secured Creditors, or held by any of
the Secured Creditors. Appraisement of the Premises is hereby expressly waived,
at the option of Beneficiary, which such option shall be executed prior to the
time any judgment is tendered at foreclosure.
Section 4.07. Jurisdiction and Process. (a) To the extent permitted
under applicable law, in any suit, action or proceeding arising out of or
relating to this Instrument or any other Relevant Documents insofar and only
insofar as it relates to any Mortgaged Property, Trustor (i) irrevocably
consents to the non-exclusive jurisdiction of any state or federal court sitting
in which the Premises is located and irrevocably waives any defense or objection
which it may now or hereafter have to the jurisdiction of such court or the
venue of such court or the convenience of such court as the forum for any such
suit, action or proceeding, and (ii) irrevocably consents to the service of (A)
any process in accordance with applicable law in any such suit, action or
proceeding, or (B) any notice relating to any sale, or the exercise of any other
remedy by Beneficiary hereunder by mailing a copy of such process or notice by
United States registered or certified mail, postage prepaid, return receipt
requested to Trustor at its address specified in or pursuant to Section 5.01;
such service to be effective in accordance with applicable law.
(b) Nothing in this Section shall affect the right of
Beneficiary to bring any suit, action or proceeding arising out of or relating
to this Instrument, or any other Relevant Documents in any court having
jurisdiction under the provisions therein or applicable law or to serve any
process, notice of sale or other notice in any manner permitted by this
Instrument, the other Relevant Documents or applicable law.
Section 4.08. Concerning Beneficiary. (a) Beneficiary is authorized
to take all such action as is provided to be taken by it as Beneficiary
hereunder and all such other action incidental thereto subject to the terms and
provisions of the Intercreditor Agreement. As to any matters not expressly
provided for herein (including the timing and methods of realization upon the
Mortgaged Property), Beneficiary shall, in addition, act or refrain from acting
in accordance with the terms and provisions of the Intercreditor Agreement.
Beneficiary shall not be responsible for the existence, genuineness or value of
any of the Mortgaged Property or for the validity, perfection, priority or
enforceability of the lien of this Instrument on any of the Mortgaged Property,
whether impaired by operation of law or by reason of any action or omission to
act on its part hereunder. Beneficiary shall have the right, but shall have no
duty, to ascertain or inquire as to the performance or observance of any of the
terms of this Instrument by Trustor.
(b) Beneficiary may, at any time, delegate by power of
attorney or otherwise to any person(s) or entity(ies) the ability to exercise
any or all of the rights, powers and discretions vested in it by this Instrument
or appoint any person or entity to act as additional Beneficiary or as
co-trustee for the purpose of this Instrument, in accordance with and subject to
the terms of Clause 16 of the Intercreditor Agreement.
(c) In the event that Beneficiary acts as Trustor's
attorney in fact or otherwise as its agent as provided for under this
Instrument, Trustor shall ratify and confirm all things done and all documents
executed by Beneficiary in the exercise or purported exercise of all or any of
such powers or acts..
13
ARTICLE V
MISCELLANEOUS
Section 5.01. Notices. Except as otherwise provided herein, all
communication required or permitted to be given in connection with this
Instrument shall be in writing, and shall be given or served in the manner and
to the address, and deemed received, as provided in clause 20 of the
Intercreditor Agreement. All communications to the Trustee shall be sent to the
Trustee at:
if to Trustee:
Xxxxxx X. Xxxxx
c/o Robertshaw Noble et. al.
000 Xxxxx Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Trustee shall, from time to time, have the right to specify as the proper
addressee and/or address for the purposes of this Instrument any other party or
address in the United States upon giving five (5) days prior written notice in
the manner herein prescribed. Trustor's mailing address as set forth in the
opening paragraph hereof is true and correct.
Section 5.02. Extension of Payments. Trustor agrees that, without
affecting the liability of any person for payment of the Secured Obligations or
affecting the lien of this Instrument upon the Mortgaged Property or any part
thereof (other than persons or property explicitly released as a result of the
exercise by Beneficiary or Trustee of their rights and privileges hereunder),
Beneficiary may (without obligation), at any time and from time to time, on
request of the Trustor made in accordance with the terms and provisions of the
Intercreditor Agreement, without notice to any person liable for payment of any
Secured Obligations or to any other person or entity, extend the time, or agree
to alter or amend the terms of payment of such Secured Obligations; provided,
however, that such actions of Beneficiary are expressly limited by the terms and
provisions of the Intercreditor Agreement. Trustor further agrees that any part
of the security herein described may be released with or without consideration
without affecting the remainder of the Secured Obligations, the remainder of the
security or the lien of this Instrument.
Section 5.03. Governing Law. Trustor agrees that this Instrument is
to be construed, governed and enforced in accordance with the laws of the State.
Wherever possible, each provision of this Instrument shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Instrument shall be prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Instrument.
Section 5.04. Satisfaction of Mortgage. Upon satisfaction of the
conditions set forth in Section 5.3 of the Intercreditor Agreement, this
conveyance or lien shall be null and void and, upon demand therefor following
such satisfaction, a satisfaction of mortgage or reconveyance of the Mortgaged
Property and any other documents required to release the lien of this Instrument
shall promptly be provided by Beneficiary to Trustor, at Trustor's sole expense,
without recourse to, or any representation or warranty by, the Beneficiary or
any of its nominees.
14
Section 5.05. Successors and Assigns Included in Parties. This
Instrument shall be binding upon the Trustor and upon the successors, assigns
and vendees of the Trustor and shall inure to the benefit of the Beneficiary's
successors and assigns and any principals it represents as agent; all references
herein to the Trustor and to the Beneficiary or Trustee shall be deemed to
include their successors and assigns and, as to Beneficiary, any principals it
represents as agent. Trustor's successors and assigns shall include, without
limitation, a receiver, trustee or debtor in possession of or for the Trustor.
Wherever used, the singular number shall include the plural, the plural shall
include the singular, and the use of any gender shall be applicable to all
genders.
Section 5.06. Waiver of Appraisement, Valuation, Stay, Extension
and Redemption Laws. Trustor agrees, to the full extent permitted by law, that
in case of an Enforcement Event, neither Trustor nor anyone claiming through or
under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, or extension laws now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of this Instrument or
the absolute sale of the Mortgaged Property or the final and absolute putting
into possession thereof, immediately after such sale, of the purchaser thereat,
and Trustor, for itself and all who may at any time claim through or under it,
hereby waives, to the full extent that it may lawfully so do, the benefit of all
such laws, and any and all right to have the assets comprising the Mortgaged
Property marshalled upon any foreclosure of the lien hereof and agrees that
Trustee, or any court having jurisdiction to foreclose such lien may sell the
Mortgaged Property in part or as an entirety. Trustor represents that it has
been authorized to, and Trustor does hereby waive to the full extent permitted
by law any and all statutory or other rights of redemption from sale under power
of sale or from sale under any order or decree of foreclosure of this
Instrument, on its own behalf and on behalf of each and every person acquiring
any interest in or title to the Mortgaged Property subsequent to the date
hereof.
Section 5.07. Interpretation with Other Documents. Notwithstanding
anything in this Instrument to the contrary, (a) in the event of a conflict or
inconsistency between this Instrument and the provisions of the Intercreditor
Agreement, the provisions of the Intercreditor Agreement shall govern, and (b)
the exercise of any right or remedy by Beneficiary under this Instrument shall
be done in accordance with and is subject to the terms and provisions of the
Intercreditor Agreement.
Section 5.08. Future Advances. The parties hereto intend that, in
addition to any other debt or obligation secured hereby, this Instrument shall
secure unpaid balances of loan advances and other extensions of credit made
after this Instrument is delivered to the appropriate recording offices of the
State, whether such advances or extensions of credit made are obligatory or
otherwise, and such future advances or extensions of credit shall be secured to
the same extent as if such advances or extensions of credit were made on the
date hereof, although there may be no advance or extensions of credit made at
the time of the execution hereof and although there may be no indebtedness
outstanding at the time any advance or extension of credit is made. Such unpaid
balances of loan advances and other extensions of credit may or may not be
evidenced by notes executed pursuant to the applicable Relevant Documents.
Section 5.09. Invalid Provisions to Affect No Others. In the event
that any of the covenants, agreements, terms or provisions contained in this
Instrument shall be invalid, illegal or unenforceable in any respect, the
validity of the remaining covenants, agreements, terms or provisions contained
herein or in any other Relevant Documents shall not be in any way affected,
prejudiced or disturbed thereby. In the event that the application of any of the
covenants, agreements, terms or provisions of this Instrument is held to be
invalid, illegal or unenforceable, those covenants, agreements, terms and
provisions shall not be in any way affected, prejudiced or disturbed when
otherwise applied.
15
Section 5.10. Changes. Neither this Instrument nor any term hereof
may be changed, waived, discharged or terminated orally, or by any action or
inaction, but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. To the
extent permitted by law, any agreement hereafter made by Trustor and Trustee or
Beneficiary relating to this Instrument shall be superior to the rights of the
holder of any intervening lien or encumbrance.
Section 5.11. Marshalling of Assets. Notice is hereby given that no
holder of any mortgage, lien or other encumbrance affecting all or a part of the
Mortgaged Property which is inferior to the lien of this Instrument shall have
any right to require the Beneficiary to marshal assets.
Section 5.12. Trustee's Rights Regarding the Mortgaged Property. At
any time or from time to time, without liability therefor and without notice,
upon written request of the Beneficiary, payment of its fees and presentation of
this Instrument without affecting the liability of any person for the payment of
the Secured Obligations, the Trustee may (a) consent to the making of any map or
plot of the Land, (b) join in granting any easement or creating any restriction
thereon, (c) join in any subordination or other agreement, affecting this
Instrument or the lien or charge thereof, or (d) reconvey or release from the
lien of this Instrument, without warranty, all or any part of the Mortgaged
Property.
Section 5.13. Time of Essence. Time is of the essence with respect
to the provisions of this Instrument.
Section 5.14. Appointment of Successor Trustee. At the option of
the Beneficiary, with or without any reason, and from time to time, a successor
or substitute trustee may be appointed by the Beneficiary or any successor in
ownership of any indebtedness secured hereby, without any formality other than a
designation in writing of a successor or substitute trustee, who shall, without
conveyance from the Trustee predecessor, thereupon become vested with and
succeed to all the title, estate, powers and duties given to the Trustee herein
named, the same as if the successor or substitute trustee had been named
original Trustee herein; and such right to appoint a successor or substitute
trustee shall exist as often and whenever the Beneficiary desires. An
instrument, executed by the Beneficiary and duly acknowledged and recorded in
the office of the recorder of the county or counties where the Mortgaged
Property is situated, shall be conclusive proof of proper substitution of such
successor trustee or trustees. Said instrument should contain the name of the
original Trustor, Trustee and Beneficiary hereunder, the recording information
where this Instrument is recorded and the name and address of the new trustee.
Section 5.15. FINAL AGREEMENT. THIS INSTRUMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 5.16. Relevant Documents Revisions. In this Instrument,
references to this Instrument or to easement agreements, Leases, the
Intercreditor Agreement, and any other Relevant Documents include all
amendments, supplements, consolidations, replacements, restatements, extensions,
renewals and other modifications, to the extent applicable, and any refinancings
and refundings thereof, in whole or in part.
Section 5.17. WAIVER OF JURY TRIAL. TRUSTOR AND BENEFICIARY
EXPRESSLY AND VOLUNTARILY WAIVE ANY AND ALL RIGHTS, WHETHER ARISING UNDER THE
UNITED STATES OR ANY STATE CONSTITUTION, ANY RULES OF CIVIL PROCEDURE, COMMON
LAW OR OTHERWISE, TO DEMAND A TRIAL BY JURY IN ANY ACTION,
16
LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON,
OR ARISING OUT OF, THIS INSTRUMENT OR THE OTHER RELEVANT DOCUMENTS, ANY
AGREEMENTS ARISING UNDER OR RELATING TO THIS INSTRUMENT, ANY MORTGAGED PROPERTY
SECURING THE SECURED OBLIGATIONS, OR THE DEALINGS OR RELATIONSHIPS BETWEEN
TRUSTOR AND BENEFICIARY. NEITHER TRUSTOR NOR BENEFICIARY, INCLUDING ANY ASSIGNEE
OR SUCCESSOR OF TRUSTOR OR BENEFICIARY, SHALL SEEK A JURY TRIAL IN ANY SUCH
ACTION. NEITHER TRUSTOR NOR BENEFICIARY SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION WITH ANY OTHER ACTION WHEN A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER TRUSTOR NOR
BENEFICIARY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO THE OTHER THAT THE
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
Section 5.18. Reduction of Secured Amount. In the event that the
maximum principal amount secured by this Instrument is less than the aggregate
Secured Obligations then the amount secured hereby shall be reduced only by the
last and final sums that the Trustor repays with respect to the Secured
Obligations and shall not be reduced by any intervening repayments of the
Secured Obligations. So long as the balance of the Secured Obligations exceeds
the amount secured hereby, any payments of the Secured Obligations shall not be
deemed to be applied against, or to reduce, the portion of the Secured
Obligations secured by this Instrument. Such payments shall instead be deemed to
reduce only such portions of the Secured Obligations as are secured by deeds of
trust or mortgages encumbering real property located outside the State of
Mississippi which secure the entire Secured Obligations (except to the extent,
if any, that specific deeds of trust or mortgages in such states contain
specific limitations on the amount secured).
[SIGNATURE PAGE FOLLOWS]
17
IN WITNESS WHEREOF, this Instrument is executed as of the day
and year first above written by the person identified below on behalf of Trustor
(and said person hereby represents that he or she possesses full power and
authority to execute this Instrument).
THE TRUSTOR HEREBY DECLARES AND ACKNOWLEDGES THAT THE TRUSTOR
HAS RECEIVED, WITHOUT CHARGE, A TRUE COPY OF THIS INSTRUMENT.
TRUSTOR:
Attest: MARCONI COMMUNICATIONS, INC.
a Delaware corporation
By: _______________________________________ By: ______________________________
Name: XXXXX X. XXXXXX Name: XXXXXXXX X. XXXXXXX
Title: ASSISTANT SECRETARY Title: AUTHORIZED SIGNATORY
18
STATE OF ILLINOIS )
:
DU PAGE COUNTY )
I XXXXXX X. XXXXXXX a Notary Public for said County and State,
hereby certify that Xxxxxxxx X. Xxxxxxx personally appeared before me this day
and acknowledged that she is an Authorized Signatory of MARCONI COMMUNICATIONS,
INC., a Delaware corporation, and that, by authority duly given and as an act of
the corporation, the foregoing instrument was signed by its Authorized Signatory
and attested by XXXXX X. XXXXXX as its Assistant Secretary.
Witness my hand and official seal, this 15TH day of May,
2003.
XXXXXX X. XXXXXXX
Notary Public
My commission expires: 5/19/03
[Notarial Seal/Stamp]
(OFFICIAL SEAL XXXXXX X. XXXXXXX)
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EXHIBIT A
Washington County, Mississippi
000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Legal Description of the Premises
TRACK 1:
COMMENCING AT A CONCRETE MONUMENT ON THE TOWNSHIP LINE BETWEEN TOWNSHIP 18 NORTH
AND 19 NORTH, WHICH MONUMENT MARKS THE EAST 1/4 1/4 CORNER OF SECTION 32,
TOWNSHIP 19 NORTH, RANGE 8 WEST, WASHINGTON COUNTY, MISSISSIPPI; THENCE SOUTH 00
DEGREES 00 MINUTES WEST 4338.63 FEET TO A POINT ON THE NORTH RIGHT-OF-WAY LINE
OF COUNTRY ROAD; THENCE SOUTH 86 DEGREES 45 MINUTES EAST ALONG SAID NORTH
RIGHT-OF-WAY LINE, 118.24 FEET TO THE WEST RIGHT-OF-WAY LINE OF NORTH BROADWAY
EXTENDED; THENCE SOUTH 25 DEGREES 48 MINUTES WEST ALONG THE SAID WEST
RIGHT-OF-WAY LINE OF NORTH BROADWAY STREET EXTENDED 1347.07 FEET TO THE POINT OF
BEGINNING OF THE TRACT THEREIN DESCRIBED; THENCE CONTINUE SOUTH 25 DEGREES 48
MINUTES WEST ALONG SAID WEST RIGHT-OF-WAY LINE 400.00 FEET; THENCE NORTH 64
DEGREES 12 MINUTES WEST 836.27 FEET; THENCE NORTH 2 DEGREES 43 MINUTES EAST
48.73 FEET; THENCE SOUTH 86 DEGREES 45 MINUTES EACH 926.20 FEET TO THE POINT OF
BEGINNING, CONTAINING 4.358 ACRES, MORE OR LESS, LOCATED IN XXXXXXX 0, XXXXXXXX
00 XXXXX, XXXXX 0 XXXX, XXXXXXXXXX XXXXXX, MISSISSIPPI.
TRACT 2:
COMMENCING AT A CONCRETE MONUMENT ON THE TOWNSHIP LINE BETWEEN TOWNSHIP 18 AND
19 NORTH, WHICH MONUMENT MARKS THE EAST 1/4 1/4 CORNER OF SECTION 32, TOWNSHIP
19 NORTH, RANGE 8 WEST; THENCE SOUTH 00 DEGREES 00 MINUTES WEST 4,338.63 FEET TO
THE NORTH RIGHT-OF-WAY OF COUNTY ROAD; THENCE ALONG THE NORTH RIGHT-OF-WAY OF
SAID COUNTY ROAD SOUTH 86 DEGREES 45 MINUTES EACH 118.24 FEET TO THE WEST
RIGHT-OF-WAY LINE OF NORTH BROADWAY EXTENDED; THENCE ALONG THE WEST RIGHT-OF-WAY
OF NORTH BROADWAY EXTENDED SOUTH 25 DEGREES 48 MINUTES WEST 677.96 FEET TO AN
IRON PIPE AND THE POINT OF BEGINNING OF THE TRACT HEREIN DESCRIBED; THENCE
CONTINUE ALONG SAID WEST RIGHT-OF-WAY OF NORTH BROADWAY EXTENDED SOUTH 25
DEGREES 48 MINUTES WEST 669.11 FEET TO AN IRON PIPE; THENCE NORTH 86 DEGREES 45
MINUTES WEST 926.20 FEET TO AN IRON PIPE ON THE EAST RIGHT-OF-WAY OF A RAILROAD
SPUR TRACK; THENCE ALONG THE EAST RIGHT-OF-WAY OF SAID RAILROAD SPUR TRACK NORTH
2 DEGREES 43 MINUTES EAST 415.98 FEET; THENCE CONTINUE ALONG THE EAST
RIGHT-OF-WAY OF SAID RAILROAD SPUR TRACK NORTH 2 DEGREES 45 MINUTES EAST 202.01
FEET TO AN IRON PIPE AT THE SOUTHWEST CORNER OF THE RIVER GRAIN CO. PROPERTY;
THENCE ALONG THE SOUTH LINE OF SAID RIVER GRAIN CO. PROPERTY SOUTH 86 DEGREES 45
MINUTES EAST 1,188.42 FEET TO THE POINT OF BEGINNING, CONTAINING 15.00 ACRES,
MORE OR LESS, LOCATED IN XXXX 0, 0, 0 XX XXXXXXX 0, XXXXXXXX 18 NORTH, RANGE 8
WEST, WASHINGTON COUNTY, MISSISSIPPI.
LESS AND EXCEPT:
COMMENCE AT A CONCRETE MONUMENT ON THE TOWNSHIP LINE BETWEEN TOWNSHIP 18 NORTH
AND TOWNSHIP 19 NORTH, MARKING THE EAST 1/4 1/4 CORNER OF SECTION 32, TOWNSHIP
19 NORTH, RANGE 8 WEST; THENCE SOUTH 4,338.63 FEET TO THE NORTH RIGHT OF WAY OF
COUNTY ROAD; THENCE ALONG SAID RIGHT OF WAY LINE S. 86 DEGREES 45 MINUTES
E.118.24 FEET TO THE XXXX XXXXX XX XXX XXXX XX XXXXX
X-0
BROADWAY EXTENDED; THENCE ALONG SAID RIGHT OF WAY LINE S. 25 DEGREES 48 MINUTES
W., 1,347.07 FEET TO AN IRON PIPE AT THE SOUTHEAST CORNER OF THE UTILITY
PRODUCTS COMPANY TRACT (D.B. 1078, P.74); THENCE N. 86 DEGREES 45 MINUTES W.,
426.20 FEET TO AN IRON PIPE AND THE POINT OF BEGINNING OF THE TRACT HEREIN
DESCRIBED; THENCE CONTINUE N. 86 DEGREES 45 MINUTES W., 500.0 FEET TO AN IRON
PIPE ON THE EAST RIGHT OF WAY OF THE ILLINOIS CENTRAL RAILROAD SPUR TRACK;
THENCE ALONG SAID RIGHT OF WAY N. 2 DEGREES 43 MINUTES E. 415.98 TO AN IRON
PIPE; THENCE CONTINUE ALONG SAID RIGHT OF WAY N. 2 DEGREES 45 E. 38.17 FEET TO
AN IRON PIPE; THENCE S. 68 DEGREES 53 MINUTES 40 SECONDS E., 529.72 FEET TO AN
IRON PIPE; THENCE S. 3 DEGREES 15 MINUTES W. 291.71 FEET TO THE POINT OF
BEGINNING, CONTAINING 4.2947 ACRES, MORE OR LESS IN XXXXXXX 0, XXXXXXXX 00
XXXXX, XXXXX 0 XXXX, XXXXXXXXXX XXXXXX, MISSISSIPPI.
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EXHIBIT B
Permitted Title Exceptions
1. That certain Easement from Utility Products to Piper Industries, Inc. a
Tennessee corporation, for drainage and for ingress and egress over and
across the following described lands located in Washington County,
Mississippi, to-wit:
Commence at the Southeast corner of Utility Products Company
Site (D.B. 1078, P. 74) thence N. 86 degrees 45 Minutes W.
426.20 feet to an iron pipe; thence N. 3 degrees 15 minutes E.
30.0 feet to an iron pipe; thence S. 86 degrees 45 minutes E.,
436.66 feet to an "X" cut into the concrete driveway; thence
S. 25 degrees 48 minutes W., 32.48 feet to the Point of
Beginning.
2. That certain 30 foot drainage easement running parallel with and
adjacent to the western boundary of the right-of-way of North Broadway
Street Extended which western boundary is also the eastern boundary of
the lands conveyed hereby. Said right-of-way is owned by Washington
County Board of Supervisors by virtue of a Deed recorded at Book 1086,
page 530 of the land records of said County.
3. That certain 10 foot utility easement to the City of Greenville located
west of and adjacent to the drainage easement of the Board of
Supervisors described in Paragraph (2) above. Said easement is recorded
in Book 1094, page 27 of the land records of Washington County,
Mississippi.
4. General right-of-way grants across Section 2, Township 18 North, Range
8 West of the Washington County, Mississippi to Mississippi Power &
Light Company recorded in Book 510, page 204; Book378, page 555; Book
407, page 598.
5. Taxes and assessments for year 2003 and subsequent years.
6. Judgment by King's Daughters Hospital against Marconi Communications
dated September 17, 2001 in the principal amount of $2,368.93.
7. Judgment by King's Daughters Hospital against Marconi Communications
dated September 17, 2001 in the principal amount of $458.71.
8. Judgment by King's Daughters Hospital against Marconi Communications
dated June 28, 2002 in the principal amount of $174.60.
9. Assignment of Rents dated May ___, 2003 and effective May 19, 2003, by
Marconi Communications, Inc. to The Law Debenture Trust Corporation
p.l.c., a public limited company organized under the laws of England
and Wales (together with any co-trustee, co-agent or other entity
appointed pursuant to Clause 16 of the Intercreditor Agreement (as
defined in the insured mortgage), in its capacity as security trustee
for the "Secured Creditors" (as defined in the Intercreditor
Agreement), their successors and/or assigns as their interests may
appear, to be recorded in Washington County.
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10. UCC Financing Statement from Marconi Communications, Inc., as debtor,
to The Law Debenture Trust Corporation p.l.c., as security trustee, to
be filed in Washington County.
11. Encroachments, overlaps, boundary disputes, or other matters which
would be disclosed by an accurate survey or inspection of the premises.
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