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EXHIBIT 10.8
Borrower(s) CIRCLE CREEK AQUACULTURE V Lender's [LOGO SUNBURST BANK] Inception
-------------------------- Date March 28, 1996
Name(s) 0000 Xxxxxxx Xxxx Name -------------------
-------------------------- Maturity
& Hermitage, TN 37076 & Box 548 Date April 1, 2000
-------------------------- --------------------------- -------------- ----
Address(es) Address Moorhead, MS 38761 Loan Amt. 1,100,000.00
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Off initial
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The undersigned Borrower(s) (If more than one jointly and severally and
hereinafter, whether one or more, called Borrower) promises to pay to the order
of the above-named Lender (at the Lender's address shown above) the Principal
Sum of ---One million one hundred thousand and no/100-------Dollars, plus
interest from Date until final maturity at the rate of 11.5* per cent per
annum, payable according to the following payment schedule (select only one)
(a) [ ] Upon demand. (b) [ ] Upon demand, but if no demand is made on _________,19___ (c) [ ] On ___________,19___
Accrued interest is due and payable _______________________________________________________________and at the maturity indicated.
(d) [ ] If checked, this Note is payable in equal _________________installments of $______________each, beginning________,19____,
and on the same day of each _____________________thereafter until _____________________,19___, when the unpaid balance of
principal and interest shall be due and payable.
(e) [X] Sixty (60) monthly payments of $11,754.00 due on the 1st of each month, beginning May 1, 1995 and a final payment of
$1,017,491.78 due April 1, 2000.
VARIABLE INTEREST RATE: [] If checked, the interest rate on this Note is subject to change from that stated above, so as to be
2 1/2 above percentage points above the following selected Index Rate:
[ ] The prime rate of ___________________________________________________________________________________________________
[x] Sunburst Bank's Variable Prime Rate, as set at the discretion of its Credit Committee.
and an increase in the interest rate will cause an increase in [ ] this amount due at maturity [x] the amount of each scheduled
payment. [ ] the number of payments.
[x]The rate may not increase or decrease more than once a year, and during this period stated, may not increase more than n/a%
and/or decrease more than n/a%. At no time during the life of this loan will the rate be less than n/a% or more than n/a%.
Changes in the Index rate shall take effect on this Note: [ ] on the same day such changes in the Index Rate take effect:
[x] on the first day of April each year.
APPLICATION OF PAYMENTS; Xxxxxxxx and Lender agree that Lender may in its sole
discretion, apply sums received from Borrower to principal only, with or
without the consent or request of Borrower, and regardless of whether or not
Borrower is in defult as defined herein.
POST-MATURITY INTEREST: Interest will accrue after maturity on the unpaid
balance of this note on the same basis as interest accrues prior to maturity,
unless a specific post-maturity interest rate is agreed to in the next sentence.
[ ] If checked, interest will accrue at the rate of __________% per year on the
balance of this note not paid at maturity, including maturity by acceleration.
PREPAYMENT:[ ] If checked, Xxxxxx has the right to impose a penalty upon
prepayment, if not checked, Borrower may prepay this Note at any time prior to
maturity without penalty.
Any partial prepayments shall not relieve or diminish any scheduled
subsequent payments of principal or interest until all obligations are paid in
full.
COSTS OF COLLECTION:Except where prohibited by law, the Borrower promises to pay
all costs of collection, including but not limited to reasonable attorney's fees
paid or incurred by the Lender on account of such collection, whether or not
suit is filed with respect thereto.
WAIVER: Demand, presentment, protest, notice of non-payment and dishonor of this
Promissory Note are hereby waived. Lender may release any party or security,
make future loans to any party or contractually change its relationship to or
the obligation of any party without waiving or affecting the obligation of any
other party to this Note, A party to this Note is any maker, surety, endorser
or guarantor, Waiver by the Lender of any right conferred by this Note or any
agreement securing same will not affect the Lender's future exercise of said
right or any other.
[x] If checked. I agree to pay a late charge on any payment made more than 15
days after it is due equal to 4% of the amount of the payment, or $5.00,
whichever is greater, up to $50.00. However, it the Loan exceeds $100,000.00 or
has a maturity of more than 5 years, the maximum of $50.00 does not apply.
SET-OFF: Lender may at any time before or after Default exercise its right to
set-off all or any pertion of the Indebtedness evidenced hereby against any
liability or indebtedness of the Lender to the Borrower (whether owned by the
Borrower alone or in conjunction with any other person or entity, provided that
the Borrower has a beneficial interest therein) without prior notice to the
Borrower. This right applies to and includes but is not limited to any funds on
deposit with the Lender provisionally, in escrow (subject to the terms of any
special agreement therefore) for collection, or in any time or open accounts.
DEFAULT AND ACCELERATION:The Borrower shall be in Default upon the occurrence of
any one or more of any of the following events:(1) the Borrower shall fail to
pay, when due, any amount required hereunder or any other indebtedness of the
Borrower to the Lender or any third parties; (2) any warranty or representation
made by the Borrower shall prove to be false or misleading in any respect; (3)
the Borrower or any guarantor of this Promissory Note shall liquidate, merge,
dissolve, terminate its existence, suspend business operations, die (if an
individual), have a receiver appointed for all or any part of its property make
an assignment for the benefit of its creditors, or file or have filed against it
any petition under any existing or future bankruptcy or insolvency law; (4) any
change occurs in the condition or affairs financial or otherwise) of the
Borrower or any guarantor of this Promissory Note which, in the opinion of the
Lender, impairs the Lender's security or increases its risk with respect to this
Promissory Note; (5) Borrower fails to keep any promise under any agreements
intended to secure the repayment of this Promissory Note; or (6) Lender
reasonably deems itself insecure. Unless prohibited by law, the Lender may, at
its option, declare the entire unpaid balance of principal and interest
immediately due and payable without notice or demand at any time after Default,
as such term is defined in this paragraph.
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SECURITY: (a) In addition to Lender's right of set-off set forth above, Lender
is secured by the proceeds and unearned premiums of any insurance policy
purchased by the Borrower in connection with the Loan evidenced hereby, Xxxxxxxx
agrees to keep any Colleteral securing this Note insured against such risks,
with such limits, and upon such additional terms and conditions as Lender may
resonably require. Lender shall be named as additional loss payee under said
policies. Xxxxxx is hereby authorized (but not required or obligated) to act as
attorney in fact for Xxxxxxxx in making and settling claims under said policies
and endorsing Xxxxxxxx's name on any drafts or checks paying losses under said
policies. (b) This Note may be secured by prior or subsequent security documents
notwithanding that such security is not indicated hereon (c) Borrower hereby
grants to Lender a Security interest in all other personal property of the
Borrower of every dind and description which is now or hereafter comes into the
possession of the Lender for any reason, including but not limited to property
delivered to Lender for safekeeping, or for collection or exchange, and all
dividends and distributions on and other rights in connection with such
property.
(d) [x] If checked, this Note is secured by a Deed of Trust dated March 28, 1995
(e) [ ] If checked, this Note is secured by the Security Agreement hereafter and
Borrower hereby grants to the Lender a Security Interest under
the Uniform Commercial Code in the following described Collateral:
[ ] INVENTROY: All inventory of the Borrower, whether now owned or
hereafter acquired and whereever located
[x] EQUIPMENT: All equipment of the Borrower, whether now owned or
hereafter acquired, including but not limited to all present
and future machinery, vehicles, furniture, fixtures,
manufacturing equipment, farm machinery and equipment, shop
equipment, office and record keeping equipment, parts and
tools, and the goods described in any equipment list or schedule
herewith or hereafter furnished to Lender by Borrower (but no
such schedule or list need be furnished in order for the
Security Interest granted herein to be valid as to all
Borrower's equipment).
[ ] FARM PRODUCTS; All farm products of the Borrower, whether now
owned or hereafter acquired, including but not limited to (i)
all poultry and livestock and their young products thereof and
produce (ii) of all crops, whether annual or perennial, and the
products thereof and (iii) all food, seed, fertillizer medicines
and other supplies used or produced by Borrower in farming
operations
[x] ACCOUNTS AND OTHER RIGHTS TO PAYMENT Each and every right of the
Borrower to the payment of money, whether such right to payment
now exists or hereafter arises, whether such right to payment
arises out of a sale, lease or other disposition of goods or
other property by the Borrower, out of a rendering of services
by the Borrower, out of a loan by the Borrower, out of the
overpayment of taxes or other liabilities by the Borrower or
otherwise arises under any contract or agreement, whether such
right to payment is or is not already earned by performance, and
howsoever such right to payment may be evidenced together with
all of the rights and interest (including all liens and security
interest) which Borrower may at any time have by law or agreement
against any account debtor or other obligor obligated to make
any such payment or against any of the property of such account
debtor or other obligor; all including by not limited to all
present and future debt instruments, chattel papers, accouonts,
loans and obligations receivable and tax refunds.
[x] GENERAL INTANGIBLES: All general intangibles of the Borrower,
whether now owned or hereafter acquired, including but not
limited to, applications for patents, copyrights, trademarks,
trade secrets, goodwill, trade names, customer lists, permits
and franchises, and the right to use Borrower's name.
[x] In addition to any property generally described above, the
following Collateral:
Continuing Guaranties of X. Xxxxxx Xxxxx, Xxxxx Xxxxxxxxxx and
Xxxxxx Xxxxxxxx. All equipment now owned or herafter acquired
per attached list, together with all parts, accessories,
repairs, improvements and accessions thereto and evidenced by
UCCs filed with Bolivar County, Dist. I and the Secretary of
State. Mortage on approximately 668 acres of real estate located
in the First District of Bolivar County, MS, more fully
described in Deed or Trust dated March 28, 1995. One
certificate of deposit from Xxxxx Xxxxxxxxxx in the amount of
$5,000.00 represented by collateral receipt number 54581. One
certificate of deposit from X. Xxxxxx Xxxxx in the amount of
$5,000.00 represented by receipt number 54582.
/s/
together with all parts, accessories, repairs, improvements and accessions
thereto; and proceeds, products and issue therefrom now or hereafter at any
time made or acquired. (See other side for additional terms).
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[x] If checked, this is a Purchase Money Loan. Description of Real Estate if above Collateral is crops,
Purpose of Credit: Purchase assets of Fat Cat Corporation growing or to be grown, timber, minerals (including oil or
gas) or fixtures ____________________________________________
----------------------------------------------------------- _____________________________________________________________
_____________________________________________________________
----------------------------------------------------------- _____________________________________________________________
If other than Borrower,
Borrower will use Collateral listed on this Security Agreement name of Record Owner
for: _________________________________________
[x] Farming operations
[ ] Business purposes
[ ] _______________________________________________________ By signing below, the Borrower(s) signs this Note & Security
Agreement and agrees to the Terms and Conditions on the
Any person who signs within this enclosure hereby grants to the reverse side as hereof.
Secured Party a Security interest in the Collateral listed in CIRCLE CREEK AQUACULTURE V. L.P.,
Paragraph (a) but assumes no personal obligation to repay this
Loan. a Tennesse Limited Partnership (Borrower)
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SIGN HERE /s/ Xxxxxx X. Xxxxxxxx, Xx. (Borrower)
Signed Date ----------------------------------------
by: Xxxxxx X. Xxxxxxxx, Xx., its General
Partner
----------------------------------------------------------- ----------------------------------------(Borrower)
(AUTHORIZED SIGNATURE OF XXXXXX-SIGN ONLY IF NECESSARY FOR
FILING THIS DOCUMENT OR A COPY HEREOF)
PROMISSORY NOTE & SECURITY AGREEMENT - NOTICE: See other side for important
information which is part of this Document
L-19-600-000(R-1-92) BUSINESS AND AGRICULTURE
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BORROWER INTEREST
DATE OF PRINCIPAL INITIALS PRINCIPAL PRINCIPAL INTEREST INTEREST PAID
TRANSACTION ADVANCE (not required) PAYMENTS BALANCE RATE PAYMENTS THROUGH
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Until terminated in writing, this Security Agreement secures this
Note, all extensions and renewals thereof, and all prior contemporaneous and
future debts owed to the Lender by Borrower, whether originally owned or
transferred to Lender, PROVIDED HOWEVER, that this Security Agreement shall not
secure such other indebtedness incurred primarily for personal, family, or
household purposes, and which is thereby within the regulatory scheme of Truth
in Lending, unless this Security Agreement is disclosed as required by Truth in
Lending; and, provided further, even though this Security Agreement is properly
disclosed as required by Truth in Lending, it will not secure such other
indebtedness if the Borrower is entitled to a Right of Rescission, unless such
Right of Rescission is given as required and Borrower fails to elect to rescind
within the time provided by law.
Borrower warrants, represents and agrees that:
1. Borrower is the owner of the Collateral free from any prior
lien, security interest or encumbrance, except for the Security Interest
granted herein; and Xxxxxxxx will defend the Collateral against all claims and
demands at any time claiming the same or any interest therein.
2. Borrower will not sell or offer to sell or otherwise transfer or
encumber the Collateral or any interest therein without the prior written
consent of the Lender, unless said Collateral is the inventory of the Borrower
(as such term in defined by the Uniform Commercial Code) and it is so indicated
on the Security Agreement.
3. The Borrower will immediately notify the Lender in writing of
any change of address from that shown in this Agreement and will also, upon
demand, furnish to the Lender such further information and will execute and
deliver to the Lender such financing statements, mortgages and other papers and
will do all such acts and things as the Lender may at any time or from time to
time reasonably request and/or as may be necessary or appropriate to establish
and maintain a valid Security Interest in the Collateral as Security for the
obligations, subject to no prior liens or encumbrances.
4. The Collateral is or will be located at the address of Borrower
herein set forth and will not be permanently removed from such address unless,
prior to such removal, Borrower has given written notice to the Lender of the
location or locations to which Borrower desires to remove the Collateral and the
Lender has not objected in writing to such removal.
5. The Borrower will keep the Collateral in good order and repair,
will not waste or destroy the Collateral or any part thereof, and will not use
or permit anyone else to use the Collateral in violation of any applicable
statute, ordinance or policy of insurance thereon. The Lender may examine and
inspect the Collateral at any reasonable time or times wherever located.
6. The Borrower will pay promptly when due all taxes and
assessments upon the Collateral or for its use or operation or upon this
Agreement or any notes evidencing any of the obligations.
7. A carbon, photographic or other reproduction of this Security
Agreement may be used and shall be as effective for filing as the original.
In the event of Default under the Terms and Conditions of this Note,
Lender shall have all the rights under the Uniform Commercial Code to realize on
the Collateral. These rights include the right to take possession of the
Collateral, and to require the Borrower to make the Collateral available to the
Lender at a place to be designated by the Lender which is reasonably convenient
to both parties. The Borrower and the Lender agree that as to any reasonable
notice requirement under the Uniform Commercial Code, that such reasonable
notice requirements shall consist of seven days written notice mailed to the
last known address of the Borrower. Expenses of retaking, holding, preparing
for sale, selling or the like will first be paid from the proceeds before the
balance will be applied toward the indebtedness.
GUARANTY
The undersigned (if more than one, jointly and severally) hereby
unconditionally guarantees the prompt payment of the within Promissory Note
(and all extensions and renewals thereof) and of all sums stated or agreed to
be payable therein, when due, at maturity, by acceleration or otherwise, and
hereby consents that from time to time, without notice to the undersigned, said
Promissory Note may be extended or renewed in whole or in part for any period
(whether or not longer than the original period of said Promissory Note),
additional credit separate fom this transaction may be extended to original
Borrower by the Holder; and the Holder of said Note may at any time surrender,
release, renew, extend or exchange all or any part of the property securing
said Note, or take any of the actions set forth in said Note all without
affecting the liability of the undersigned. The Lender may, at its option, at
any time after an Event of Default by the Borrower, exercise its right to
set-off of all or any portion of this Note against any liability or
indebtedness of the Lender to the Guarantor (except a liability or indebtedness
in which Guarantor, as a Fidcuiary, has no beneficial interest), without any
prior notice. The release of any party liable upon or in respect of said Note
shall not release any other such party. Each of the undersigned hereby waives
presentment, demand of payment and notice of non-payment and of protest and any
and all other notices and demands whatsoever.
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GUARANTOR GURANTOR
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DEED OF TRUST
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THIS INDENTURE made and entered into this day by and between Circle Creek
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Aquaculture V, L.P., a Tennessee Limitd Partnership
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whose address is 0000 Xxxxxxx Xxxx Xxxxxxxxx
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(Street No. or RFD No. and Box) (City) (County)
Tennessee 37076 , as Grantor (herein designated as
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(State) (Zip)
"Debtor), and X. Xxxx Xxxx , as Trustee and SUNBURST BANK,
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Xxxxxxxxx , Mississippi, as Beneficiary (herein designated as
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"Secured Party"): WITNESSETH:
WHEREAS, Debtor is indebted to Secured Party in the full sum of One
---
Million One Hundred Thousand
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Dollars ($ 1,100,000.00 ), evidenced by one promissory
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note(s) of even date herewith in favor of Secured Party, bearing interest at
the rate specified in the note(s), providing for payment of attorney's fees for
collection if not paid according to the terms thereof, and being due and
payable as follows:
a) Sixty (60) monthly amortized payments of principal and interest
(based upon a 20 year amortization schedule) beginning May 1,
1995.
b) One (1) final balloon payment of all unpaid principal and
interest due April 1, 2000.
[X] If checked, the note contains provisions allowing for changes in
the interest rate. Increases in the interest rate will result in higher
payments; decreases in the interest rate will result in lower payments.
WHEREAS, Debtor desires to secure prompt payment of (a) the
indebtedness described above according to its terms and any renewals and
extensions thereof, (b) any additional and future advances with interest
thereon which Secured Party may make to Debtor as provided in Paragraph 1, (c)
any other indebtedness which Debtor may now or hereafter owe to Secured Party as
provided in Paragraph 2, and (d) any advances with interest which Secured
Party may make to protect the property herein conveyed as provided in
Paragraphs 3, 4, 5 and 6 (all being herein referred to as the
"Indebtedness," whether now existing or hereafter arising).
NOW THEREFORE, in consideration of the Indebtedness herein recited, and
to secure the same, the undersigned, consisting of the debtor and of any other
party who, by execution and delivery hereof, pledges the property or any
interest therein as security for the said Indebtedness, said other party hereby
acknowledging the receipt and sufficiency of good and valuable consideration
for execution and delivery hereof, hereby conveys and warrants unto the Trustee
aforesaid the following described property, situated in Bolivar (First Judicial
Dist) County, Mississippi, to-wit:
See Exhibit "A: attached hereto for a complete description of the
subject property.
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together with any improvements and appurtenances now or hereafter erected on,
and all fixtures of any and said description, now or hereafter attached to,
said land (all being herein referred to as the "Property"). Notwithstanding
any provision in this agreement or in any other agreement with Secured Party,
the Secured Party shall not have a nonpossessory security interest in and its
Collateral or Property shall not include any household goods (as defined in
Federal Reserve Board Regulation AA, Subpart B), unless the household goods are
identified in a security agreement and are acquired as a result of a purchase
money obligation. Such household goods shall only secure said purchase money
obligation (including any refinancing thereof).
THIS CONVEYANCE, HOWEVER, IS IN TRUST to secure prompt payment of all
existing and future indebtedness due by Debtor to Secured Party under the
provisions of this Deed of Trust. If Debtor shall pay said indebtedness
promptly when due and shall perform all covenants made by Debtor, then this
conveyance shall be void and of no effect. If Debtor shall be in default
as provided in Paragraph 9, then, in that event, the entire Indebtedness,
together with all interest accrued thereon, shall, at the option of Secured
Party, be and become at once due and payable without notice to Debtor, and
Trustee shall, at the request of Secured Party, sell the 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 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 debtors in this Deed of Trust. Debtors
waive 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 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 Debtor and Secured Party. Should Secured Party be a
corporation or an unincorporated association, then any officer thereof may
declare Debtor to be in default as provided in Paragraph 9 and request Trustee
to sell the Property. Secured Party 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.
From the proceeds of the sale Trustee shall first pay all costs of the
sale including reasonable compensation to Trustee; then the Indebtedness due
Secured Party by Xxxxxx, including accrued interest and attorney's fees due for
collection of the debt; and then, lastly, any balance remaining to Debtor.
IT IS AGREED that this conveyance is made subject to the covenants,
stipulations and conditions set forth below which shall be binding upon all
parties hereto.
1. This Deed of Trust shall also secure all future and additional
advances which Secured Party may make to Debtor from time to time upon the
security herein conveyed. Such advances shall be optional with Secured Party
and shall be on such terms as to amount, maturity and rate of interest as may
be mutually agreeable to both Debtor and Secured Party. Any such advance may be
made to any one of the Debtors should there be more than one, and if so made,
shall be secured by this Deed of Trust to the same extent as if made to all
Debtors.
2. This Deed of Trust shall also secure any and all other Indebtedness
of Debtor due to Secured Party with interest thereon as specified, or of any
one of the Debtors 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.
REGARDLESS OF ANY STATEMENT IN THIS OR THE PRECEDING PARAGRAPH TO THE
CONTRARY, THIS DEED OF TRUST WILL NOT SECURE ANY FORM OF CREDIT GIVEN BY
SECURED PARTY TO THE DEBTOR OR TO THE UNDERSIGNED UNLESS THE INSTRUMENT OR
DOCUMENT EVIDENCING SAID CREDIT INDICATES AND DISCLOSES, PURSUANT TO TRUTH IN
LENDING, THAT THE CREDIT IS SECURED BY THIS DEED OF TRUST.
3. Debtor shall keep all improvements on the land herein conveyed
insured against fire, all hazards included within the term "extended coverage,"
flood in areas designated by the U. S. Department of Housing and Urban
Development as being subject to overflow and such other hazards as Secured
Party may reasonably require in such amounts as Debtor may determine but for
not less than the Indebtedness secured by this Deed of Trust. All policies
shall be written by reliable insurance companies acceptable to Secured Party,
shall include standard loss payable clauses in favor of Secured Party and shall
be delivered to Secured Party. Debtor shall promptly pay when due all premiums
charged for such insurance, and shall furnish Secured Party the premium
receipts for inspection. Upon Debtor's failure to pay the premiums, Secured
Party shall have the right, but not the obligation, to pay such premiums. In the
event of a loss covered by the insurance in force, Debtor shall promptly notify
Secured Party who may make proof of loss if timely proof is not made by
Debtor. All loss payments shall be made directly to Secured Party as loss payee
who may either apply the proceeds to the repair or restoration of the damaged
Improvements or to the Indebtedness of Debtor, or release such proceeds in whole
or in part to Debtor.
4. Debtor shall pay all taxes and assessments, general or special,
levied against the Property or upon the Interest of Trustee or Secured Party
therein, during the term of this Deed of Trust before such taxes or assessments
become delinquent, and shall furnish Secured Party the tax receipts for
inspection. Should Debtor fail to pay all taxes and assessments when due,
Secured Party shall have the right, but not the obligation, to make these
payments.
5. Debtor shall keep the Property in good repair and shall not permit
or commit waste, impairment or deterioration thereof. Debtor shall use the
Property for lawful purposes only. Secured Party may make or arrange to be made
entries upon and inspections of the Property after first giving Debtor notice
prior to any inspection specifying a just cause related to Secured Party's
Interest in the Property. Secured Party shall have the right, but not the
obligation, to cause needed repairs to be made to the Property after first
affording Debtor a reasonable opportunity to make the repairs.
Should the purpose of the primary Indebtedness for which this Deed of Trust
is given as security be for construction of Improvements on the land herein
conveyed, Secured Party shall have the right to make or arrange to be made
entries upon the Property and Inspections on the construction in progress.
Should Secured Party determine that Debtor is failing to perform such
construction in a timely and satisfactory manner, Secured Party shall have the
right, but not the obligation, to take charge of and proceed with the
construction at the expense of Debtor after first affording Debtor a reasonable
opportunity to continue the construction in a manner agreeable to Secured Party.
6. Any sums advanced by Secured Party for insurance, taxes, repairs or
construction as provided in Paragraphs 3, 4 and 5 shall be secured by this Deed
of Trust as advances made to protect the Property and shall be payable by Debtor
to Secured Party, with interest at the rate specified in the note representing
the primary Indebtedness, within thirty days following written demand for
payment sent by Secured Party to Debtor by certified mail. Receipts for
insurance premiums, taxes and repair or construction costs for which Secured
Party has made payment shall serve as conclusive evidence thereof.
7. As additional security Debtor hereby assigns to Secured Party all
rents accruing on the Property. Debtor shall have the right to collect and
retain the rents as long as the Debtor is not in default as provided in
Paragraph 9. In the event of default, Secured Party in person, by an agent or
by a judicially appointed receiver, shall be entitled to enter upon, take
possession of and manage the Property and collect the rents. All rents so
collected shall be applied first to the costs of managing the Property and
collecting the rents, including fees for a receiver and an attorney,
commissions to rental agents, repairs and other necessary related expenses and
then to payments on the Indebtedness.
8. If all or any part of the Property, or an interest therein, is sold
or transferred by Debtor, excluding (a) the creation of a lien subordinate to
this Deed of Trust, (b) a transfer by devise, by descent or by operation of law
upon the death of a joint owner or (c) the grant of a leasehold interest of
three years or less not containing an option to purchase, secured Party may
declare all the Indebtedness to be immediately due and payable. Secured Party
shall be deemed to have waived such option to accelerate if, prior or
subsequent to the sale or transfer, Secured Party and Xxxxxx's successor in
interest reach agreement in writing that the credit of such successor in
interest is satisfactory to Secured Party and that the successor in interest
will assume the Indebtedness so as to become personally liable for the payment
thereof. Upon Xxxxxx's successor in interest executing a written assumption
agreement accepted in writing by Secured Party, Secured Party shall release
Debtor from all obligations under the Deed of Trust and the Indebtedness.
5
If the conditions resulting in a waiver of the option to accelerate are not
satisfied, and if Secured Party elects not to exercise such option, then any
extension or modification of the terms of repayment from time to time by
Secured Party shall not operate to release Debtor or Xxxxxx's successor in
interest from any liability imposed by this Deed of Trust or by the
indebtedness.
If Secured Party elects to exercise the option to accelerate, Secured
Party shall send Debtor notice of acceleration by certified mail. Such notice
shall provide a period of thirty days from the date of mailing within which
Debtor may pay the indebtedness in full. If Xxxxxx fails to pay such
indebtedness prior to the expiration of thirty days. Secured Party may, without
further notice to Debtor, invoke any remedies set forth in this Deed of Trust.
9. Debtor shall be in default under the provisions of this Deed of Trust
in Debtor (a) shall fail to comply with any of Debtor's covenants or
obligations contained herein, (b) shall fail to pay any of the indebtedness
secured hereby, or any installment thereof or interest thereon, as such
indebtedness. Installment or interest shall be due by contractual agreement or
by acceleration, (c) shall become bankrupt or insolvent or be placed in
receivership, (d) shall, if a corporation, a partnership or an unincorporated
association, be dissolved voluntarily or involuntarily, or (e) if Secured Party
in good xxxxx xxxxx itself insecure and its prospect of repayment seriously
impaired.
10. Secured Party may at any time, without giving formal notice to the
original or any successor Trustee, or to Debtor, and without regard to the
willingness or inability of any such Trustee to execute this trust, appoint
another person or succession of persons to act as Trustee, and such appointee
in the execution of this trust shall have all the powers vested in and
obligations imposed upon Trustee. Should Secured Party be a corporation or an
unincorporated association, then any officer thereof may make such appointment.
11. Each privilege, option or remedy provided in this Deed of Trust to
Secured Party is distinct from every other privilege, option or remedy contained
herein or afforded by law or equity, and may be exercised independently,
concurrently, cumulatively or successively by Secured Party or by any other
owner or holder of the indebtedness. Forbearance by Secured Party in
exercising any privilege, option or remedy after the right to do so has accrued
shall not constitute a waiver of Secured Party's right to exercise such
privilege, option or remedy in event of any subsequent accrual.
12. The words "Debtor" or "Secured Party" shall each embrace one
individual, two or more individuals, a corporation, a partnership or an
unincorporated association, depending on the recital herein of the parties to
this Deed of Trust. The covenants herein contained shall bind, and the benefits
herein provided shall inure to, the respective legal or personal
representatives, successors or assigns of the parties hereto subject to the
provisions of Paragraph 8. If there be more than one Debtor, then Debtor's
obligations shall be joint and several. Whenever in this Deed of Trust the
context so requires, the singular shall include the plural and the plural the
singular. Notices required herein from Secured Party to Debtor shall be sent to
the address of Debtor shown in this Deed of Trust.
IN WITNESS WHEREOF, Xxxxxx has executed this Deed of Trust on the 28 day
of March, 1995.
CORPORATE, PARTNERSHIP OR ASSOCIATION SIGNATURE INDIVIDUAL SIGNATURES
Circle Creek Aquaculture V, L.P., -------------------------------------------------------
a Tennessee Limited Partnership
------------------------------------------------ -------------------------------------------------------
(Name of Debtor)
-------------------------------------------------------
By /s/ X. X. Xxxxxxxx
------------------------------------------------ -------------------------------------------------------
XXXXXX XXXXXXX (Title)
-------------------------------------------------------
Attest its General Partner
------------------------------------------- -------------------------------------------------------
(Title)
INDIVIDUAL ACKNOWLEDGEMENT
STATE OF MISSISSIPPI
COUNTY OF _________________________________
Personally appeared before me, the undersigned authority in and for the said county and state, on this __________________
day of ____________________, 19______, within my jurisdiction, the within named ____________________________________, who
acknowledged that ______________ he _____________ executed the above and foregoing instrument.
My Commission Expires:______________________________________ ____________________________________________
Notary Public
CORPORATE, PARTNERSHIP OR ASSOCIATION ACKNOWLEDGEMENT
STATE OF MISSISSIPPI
COUNTY OF Sunflower
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 28th day of March, 1995, within my jurisdiction,
the within named Xxxxxx X. Xxxxxxxx who acknowledged that he is the General
Partner of Circle Creek Aquaculture, V, L.P., a Tennessee Limited Partnership,
and as its act and deed he executed the above and foregoing instrument, after
first having been duly authorized by said partnership so to do.
My Commission Expires:
----------------------------- -------------------------
Notary Public
6
The E1/4 of Section 22, T 24 N, R 7 W and
The S1/2 of Section 15, T 24 N, R 7 W which lies South of a certain county road
less and except the W1/2 of the SW1/4 of the said Section 15.
The SW1/4 of Section 14, T 24 N, R 7 W which lies south of a certain county
road and the N1/2 of Section 23, T 24 N, R 7 W, which lies south of the Xxxxx
Xxxxxx and less and except that part of the same N1/2 of the said Section 23
which is described as follows: Beginning at the quarter corner between Sections
23 and 24 both of T 24 N, R 7 W, thence West 1980 feet more or less to the
center of a certain canal; thence North along the center of the said canal 1155
feet more or less to the center of Xxxxx Xxxxxx; thence run Southeast along to
the Center of Xxxxx Xxxxxx; thence run Southeast along the center of the
aforesaid Xxxxx Xxxxxx to its intersection with the East Section line of the
said Section 23; thence run South along the East boundary of the said Section
23 to the point of beginning.
All lying and situated in Sections 14, 15, 22 and 23, T 24 N, R 7 W, First
Judicial District of Bolivar County, Mississippi.
And.
The N1/2 of the NE1/4, the NE1/4 of the NW1/4, and part of the SE1/4 of the
NW1/4, of Section 21, T24 N, R 7 W, First Judicial District of Bolivar County,
Mississippi, and being more particularly described as follows:
Beginning at the Northeast corner of said Section 21; thence South 89 degrees
25' West along the North line of said Section 21 for 4,014 feet to the
Northwest corner of the NE1/4 of the Northwest Quarter; thence South 0 degrees
45' East along the West line of the NE1/4 of the NW1/4 and the SE1/4 of the
NW1/4 for 1,599.75 feet; thence North 89 degrees 25' East for 1,105.46 feet;
thence North 0 degrees 42' West for 276.5 feet to a point on the South line of
the Northeast Quarter of the Northwest Quarter, which point is 231.02 feet
South 89 degrees 25' West of the Southeast corner of the NE1/4 of the NW1/4;
thence North 89 degrees 25' East along the South line of the NE1/4 of the NW1/4
and along the South line of the N1/2 of the NE1/4 for 2,904.38 feet to the
Southeast corner of the NE1/4 of the NE1/4; thence North 0 degrees 35' West
along the East line of said Section 21 for 1,323.25 feet to the point of
beginning, all lying and situate within the First Judicial District of Bolivar
County, Mississippi.
LESS AND EXCEPT:
Commence at the Northeast corner of Section 21, Township 24 North, Range 7 West,
of the First Judicial District of Bolivar County, Mississippi; run thence South
00 degrees 35 minutes East along the East line of said Section 21 for a
distance of 660 feet to the Southeast corner of the property herein described;
run thence South 89 degrees 25 minutes West, parallel with the North line of
said Section 21 for a distance of 4012.08 feet to the Southwest corner of the
parcel hereby described; run thence North 00 degrees 45 minutes West, parallel
to the East line of Section 21, for a distance of 660 feet to the North line of
Section 21 and the Northwest corner of the parcel herein described; run thence
North 89 degrees 25 minutes East for a distance of 4014 feet to the Northeast
corner of Section 21 and the Point of Beginning, contained 68.09 acres, more or
less, and being the same property described and conveyed in those deeds of
record in Book 11-108, Page 521, Book 11-108, Page 569, Book 11-114, Page 93,
and Book 11-120, Page 125.
EXHIBIT "A"
