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EXHIBIT 10(k)(4)(a)(ii)
THIS INSTRUMENT PREPARED BY,
AND FOLLOWING RECORDING RETURN TO:
Xxxx X. Xxxxxxxx, Xx., Esq.
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
DEED OF TRUST AND SECURITY AGREEMENT
FROM
XXXXX EQUITY, INC.
TO
TRESTE, INC.,
AS TRUSTEE
Dated as of December 29, 1997
State: North Carolina
Section:
Township:
Range:
County: Mecklenburg
Tax I.D.:
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DEED OF TRUST AND SECURITY AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT (this "Indenture"), dated as
of December 29, 1997, from
XXXXX EQUITY, INC., a Florida corporation ("Borrower"), whose mailing address is
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention:
X.X. Xxxxxx., President,
to
TRESTE, INC., a Virginia corporation authorized to do business in North Carolina
("Trustee") having an address x/x Xxxxx Xxxxx Xxxxxxxx Xxxx xx Xxxxx Xxxxxxxx, a
national banking association, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, as trustee for the benefit of FIRST UNION NATIONAL BANK F/K/A
FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association ("FUNB"),
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation
("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth"), and GUARANTY
FEDERAL BANK F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth and GFB
together being referred to as "Beneficiary"). For purposes of notices permitted
or required to be given hereunder, FUNB's mailing address is One First Union
Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention:
First Union Capital Markets Group, MGT's mailing address is 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attention: _____________________, AmSouth's mailing address
is 00 Xxxx Xxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000-0000 Attention: Xxxxx Coffee,
and GFB's mailing address is 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000 Attention:
Xxxxx Xxxxx.
Capitalized terms not otherwise defined herein are defined in Article I.
W I T N E S S E T H :
THIS INDENTURE WITNESSETH, that to secure (A) the payment, performance
and observance of all obligations of Borrower and all indebtedness heretofore or
hereafter from time to time advanced under the Loan Agreement and the payment of
any and all other indebtedness which this Indenture by its terms secures
including, without limitation, the payment of principal and interest on the
Notes which shall (1) be payable to Beneficiary, (2) be payable in full not
later than April 6, 1999, or such later date as may be established by an
extension of the Maturity Date (as defined in the Loan Agreement) pursuant to
Section 2.3 of the Loan Agreement, and (3) bear interest at a floating rate as
set forth in Section 2.6 of the Loan Agreement; provided, that the maximum
aggregate principal amount of indebtedness secured hereby, other
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than for advances made pursuant to Article XXIV, Paragraph 24 hereof, shall in
no event exceed $100,000,000.00 (the "Indebtedness") and (B) the performance of
the covenants and agreements contained herein and in the Loan Agreement, in
consideration of the aforesaid Indebtedness and the trust referred to and
created below, Borrower hereby irrevocably grants, bargains and sells, conveys,
transfers, assigns, sets over, mortgages, hypothecates, pledges and grants to
Trustee and its successors and assigns IN TRUST WITH POWER OF SALE in and to all
of Borrower's right, title and interest in the following property and rights
whether now owned or hereafter acquired by Borrower (collectively, the
"Property"):
(i) the Land;
(ii) all buildings, structures and other improvements
presently situated or hereafter constructed on the Land (collectively, the
"Improvements");
(iii) all rights, privileges, tenements, hereditaments,
rights of way, easements, rights and appurtenances belonging to or in any way
relating to either the Land or the Improvements;
(iv) all fixtures, machinery, equipment and other personal
property of all types owned by Borrower now or hereafter affixed to and used in
connection with the operation of the Land and Improvements, together with all
additions and accessions thereto, substitutions therefor and replacements
(collectively, the "Fixtures");
(v) all awards or payments, including interest thereon,
which may heretofore and hereafter be made with respect to the Land, the
Improvements or the Fixtures, whether from the exercise of the right of eminent
domain (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of said right), or for a change of grade of any
street, or for any other injury to or decrease in the value of Borrower's
rights, title or interest in and to the Land, the Improvements or the Fixtures;
(vi) all leases and other agreements affecting the use,
enjoyment or occupancy of the Land, the Improvements or the Fixtures now or
hereafter entered into (the "Leases") and rents, revenues, issues and profits
from the Land, the Improvements or the Fixtures (the "Rents") and all proceeds
from the sale or other disposition of the Leases and the right to receive and
apply the Rents to the payment of the Indebtedness;
(vii) all proceeds of and any unearned premiums on any
insurance policies covering the Land, the Improvements or the Fixtures,
including, without
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limitation, the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Land, the
Improvements or the Fixtures; and
(viii) the right, in the name and on behalf of Borrower, to
appear in and defend any action or proceeding brought with respect to Borrower's
right, title or interest in and to the Land, the Improvements or the Fixtures
and to commence any action or proceeding to protect the interest of Beneficiary
in the Land, the Improvements or the Fixtures;
TO HAVE AND TO HOLD the Property unto Trustee and its successors and
assigns, forever; IN TRUST NEVERTHELESS to its own proper use and benefit
forever, upon the terms and trusts herein set forth for the benefit and security
of Beneficiary.
This Indenture is a deed of trust of real property and a security
agreement covering the Fixtures under the Uniform Commercial Code of the State.
Upon the occurrence of an Event of Default, Trustee and Beneficiary shall, in
addition to other rights and remedies granted to them, have all the rights
granted to secured parties pursuant to the Uniform Commercial Code of the State.
Borrower, for itself and for its successors and assigns, covenants and
agrees with Trustee and with Beneficiary as follows:
ARTICLE I
1. Definitions. As used in this Indenture, the following
capitalized terms have the respective meanings set after them, such definitions
to be applicable equally to the singular and plural forms of such terms:
"AmSouth" shall mean AmSouth Bank, a state banking corporation.
"Beneficiary" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Borrower" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Default" shall mean any condition or event which constitutes or which
would constitute an Event of Default either with or without notice or lapse of
time, or both.
"Default Rate" shall have the meaning assigned to such term in the Loan
Agreement.
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"Event of Default" shall have the meaning assigned to such term in
Article V of this Indenture.
"FUNB" shall mean First Union National Bank f/k/a First Union National
Bank of Florida, a national banking association.
"Fixtures" shall have the meaning assigned to such term in clause (iv)
of the Granting Clause of this Indenture.
"GFB" shall mean Guaranty Federal Bank F.S.B., a federal savings bank.
"Governmental Requirements" shall have the meaning assigned to such
term in the Loan Agreement.
"Impositions" shall mean, collectively, all taxes of every kind and
nature (including real and personal property, income withholding, profits and
gross receipts taxes), all charges for any easement or agreement maintained for
the benefit of any of the Property, all general and special assessments, levies,
permits, inspection and license fees, all water and sewer rents and other
utility charges, all ground rents, and all other public charges whether of a
like or different nature, even if unforeseen or extraordinary, imposed upon or
assessed against Borrower, Beneficiary or any portion of the Property as a
result of or arising in respect of the acquisition, occupancy, leasing, use or
possession thereof, or any activity conducted on the Property (including,
without limitation, any gross income tax, sales tax or excise tax levied by any
governmental body on or with respect to the Rents).
"Improvements" shall have the meaning assigned to such term in clause
(ii) of the Granting Clause of this Indenture.
"Indebtedness" shall have the meaning assigned to such term in the
Granting Clause of this Indenture.
"Indenture" shall mean this Deed of Trust and Security Agreement.
"Land" shall mean those certain parcels of real property located in the
County of Mecklenburg, State of North Carolina, as more particularly described
on Exhibit A attached hereto and incorporated herein.
"Leases" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
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"Loan Agreement" shall mean that certain Amended and Restated Revolving
Credit Loan Agreement dated as of December 29 , 1997 between Borrower and
Beneficiary.
"MGT" shall mean Xxxxxx Guaranty Trust Company of New York, a New York
banking corporation.
"Notes" shall mean collectively (i) the Substitution Revolving
Promissory Note dated as of even date herewith made by Borrower payable to the
order of FUNB in the principal amount of $35,000,000, (ii) the Substitution
Revolving Promissory Note dated as of even date herewith made by Borrower
payable to the order of MGT in the principal amount of $15,000,000, (iii) the
Revolving Promissory Note dated as of even date herewith made by Borrower
payable to the order of AmSouth in the original principal amount of $25,000,000,
and (iv) the Revolving Promissory Note dated as of even date herewith made by
Borrower payable to the order of GFB in the original principal amount of
$25,000,000.
"Other Indenture" shall mean any mortgage, deed to secure debt, or deed
of trust given by Borrower to or in favor of Trustee or Beneficiary to secure
the Indebtedness, other than this Indenture.
"Permitted Encumbrances" shall mean those covenants, restrictions,
reservations, liens, conditions and easements listed as exceptions to title as
set forth on Exhibit B attached hereto and incorporated herein.
"Person" shall mean any corporation, natural person, joint venture,
partnership, business trust, joint stock company, trust, unincorporated
organization, government or any department, agency or political subdivision
thereof.
"Property" shall have the meaning assigned to such term in the Granting
Clause of this Indenture.
"Rents" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"State" shall mean the State of North Carolina.
"Taking" shall mean a taking or voluntary conveyance during the term
hereof of all or part of the Property, or any interest therein or right accruing
thereto or use thereof, as the result of or in lieu or in anticipation of the
exercise of the right of condemnation or eminent domain.
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"Trustee" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
ARTICLE II
2. Representations and Warranties. Borrower represents and
warrants to Trustee for the benefit of Beneficiary that (a) it has full power,
authority and legal right to execute and deliver this Indenture and to grant a
first deed of trust of the Property, (b) it holds good and marketable fee simple
title to the Land and good and marketable title to the balance of the Property,
(c) this Indenture constitutes a valid first deed of trust of the Property,
subject to the Permitted Encumbrances, and (d) the Leases are in full force and
effect in accordance with their respective terms, have not been canceled or
modified, and have not been assigned or encumbered except to Beneficiary
pursuant to this Indenture and the Loan Agreement, and, to the best of
Borrower's knowledge, no default exists under the Leases. Borrower, at its
expense, will warrant to Trustee and to Beneficiary and will defend its title to
the Property and the lien thereon created by this Indenture against all claims
and demands, and will maintain and preserve such lien so long as the
Indebtedness secured by this Indenture remains outstanding, subject, however, to
the Permitted Encumbrances.
ARTICLE III
3. Affirmative Covenants. Until this Indenture and the lien
created hereby shall terminate in accordance with Article XVIII, Borrower shall
comply with the following covenants:
(a) Recordation, Filing, Etc. At all times cause this Indenture
and each amendment or modification hereof or supplement hereto (and such
financing statements covering the Property under the Uniform Commercial Code as
in effect in the State as may be necessary or appropriate) to be recorded,
registered and filed and kept recorded, registered and filed in such manner and
in such places as appropriate, and comply with all applicable statutes and
regulations, in order to establish, preserve and protect the lien of this
Indenture as a first lien on the Property and the rights of Trustee and
Beneficiary hereunder. Borrower shall pay, or shall cause to be paid, all taxes,
fees and other charges incurred in connection with such recording, registration,
filing and compliance.
(b) Maintenance and Repairs. Keep and maintain the Property in
good order, repair and operating condition (ordinary wear and tear excepted) and
make all repairs and replacements necessary to that end.
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(c) Payment of Impositions and Utility Charges. Pay all
Impositions while the same may be paid without fine, penalty, interest or
additional cost, unless the same shall be contested in good faith and by
appropriate proceedings by Borrower in the manner permitted by the Loan
Agreement. Any Impositions which are payable in installments may be paid in
installments provided that the Borrower is otherwise in compliance with the Loan
Agreement. Upon the written request of Beneficiary from time to time, Borrower
will furnish to Beneficiary official receipts or other satisfactory proof
evidencing such payments. In addition, Borrower will pay all utility charges as
required by the Loan Agreement. Borrower shall not be entitled to any credit on
the Indebtedness, by reason of the payment of any Imposition or utility charges
or any part thereof.
(d) Compliance with Governmental Requirements. Promptly (i) comply
with all Governmental Requirements unless the same shall be contested in good
faith and by appropriate proceedings by Borrower in the manner permitted by the
Loan Agreement, and (ii) procure, maintain and comply with all licenses or other
authorizations required for any use of the Property then being made, and for the
proper erection, installation, operation, repair and maintenance of the
Improvement and the Fixtures, or any part of either thereof.
(e) Insurance. Maintain insurance of the types and in the amounts
required by, and otherwise complying with the Loan Agreement and promptly
deliver, or cause to be promptly delivered, to Beneficiary any certificates or
evidence of such insurance as required under the Loan Agreement.
(f) Damage, Destruction or Taking. In the event of any damage,
destruction or Taking affecting all or any portion of the Property, Borrower
shall give immediate written and oral notice thereof to Beneficiary and Trustee
and proceed in accordance with the terms of the Loan Agreement. In case of any
such material damage, destruction or Taking, Beneficiary shall be entitled to
hold all insurance proceeds, payments or awards on account thereof, to the same
extent Borrower would be entitled thereto under the Loan Agreement, and Borrower
hereby irrevocably assigns to Beneficiary all of its rights to any such
insurance proceeds, payments or awards. With respect to a Taking, and in
accordance with its obligations under the Loan Agreement, Borrower will file or
prosecute or will cause to be filed or prosecuted in good faith and with due
diligence what would otherwise be its claim for any such award or payment and
cause the same to be collected and paid over to Beneficiary. At the sole cost
and expense of Borrower, Beneficiary may elect to monitor or participate in, and
if reasonably necessary, may hire independent legal counsel to represent
Beneficiary in connection with, any claim or the claims payment process.
Borrower will pay or cause to be paid all costs and expenses reasonably incurred
in connection with any Taking and the seeking and obtaining of any award or
payment
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in respect thereof. Unless an Event of Default shall have occurred under the
Loan Agreement, all sums so received by Beneficiary shall be applied in
accordance with the provisions of the Loan Agreement.
(g) Notification of Default, Etc. Promptly after obtaining
knowledge thereof, notify Trustee and Beneficiary of any Default hereunder or
under the Loan Agreement or of any action or proceeding materially and adversely
affecting the Property.
ARTICLE IV
4. Negative Covenants. Without the prior written consent of
Beneficiary, Borrower will not directly or indirectly create or permit to be
created or to remain and will discharge or will cause to be discharged any
mortgage, charge, lien or encumbrance on, or attachment or pledge of, or
conditional sale or other title retention agreement with respect to, the
Property or any part thereof, its interest or the interests of Trustee and
Beneficiary therein, or the Rents or other sums payable pursuant to the Leases,
except (i) this Indenture, (ii) the Permitted Encumbrances, (iii) easements,
restrictions, liens, charges and other encumbrances permitted by the Loan
Agreement, (iv) liens being contested in good faith and by appropriate
proceedings in the manner permitted by the Loan Agreement, and (v) liens arising
out of or created by any statute, the discharge of which cannot under the terms
of such statute at the particular time be effected by Borrower; provided,
however, that any such statutory liens will promptly be discharged as and when
such discharge is possible or permissible. Borrower shall have the right to
grant, without the prior consent of Beneficiary, any utility easement.
ARTICLE V
5. Events of Default. If any one or more of the following events
(individually, an "Event of Default") shall occur:
(a) non-payment, when due, of any sums which Borrower is obligated
to pay hereunder or under the Loan Agreement continues unremedied for a period
of five (5) days after the date such payment is due; or
(b) failure of Borrower to keep in full force and effect its
corporate existence, rights, franchises and privileges, except as provided for
in the Loan Agreement; or
(c) if an Event of Default (as defined in the Loan Agreement)
shall have occurred under the Loan Agreement; or
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(d) if any of the representations or warranties made by Borrower
in any document, instrument or certificate delivered in connection with the
financing of the Property by Borrower proves to be untrue in any material
respect; or
(e) if a default shall have occurred under any Other Indenture and
shall be continuing beyond the applicable grace or cure period provided therein;
or
(f) if Borrower shall (i) voluntarily be adjudicated a bankrupt or
insolvent, (ii) seek or consent to the appointment of a receiver or trustee for
itself or for any portion of the Property, (iii) file a petition seeking relief
under the bankruptcy or other similar laws of the United States, any state or
any jurisdiction, (iv) make a general assignment for the benefit of creditors,
or (v) be unable to pay its debts as they mature; or
(g) a court shall enter an order, judgment or decree appointing,
with the consent of Borrower, a receiver or trustee for it or for any of the
Property or approving a petition filed against Borrower which seeks relief under
the bankruptcy or other similar laws of the United States, any state or any
jurisdiction, and such order, judgment or decree shall remain in force,
undischarged or unstayed, sixty (60) days after it is entered; or
(h) the estate or interest of Borrower in any of the Property
shall be levied upon or attached in any proceeding and such estate or interest
is about to be sold or transferred or such process shall not be vacated or
discharged within fifteen (15) days after such levy or attachment; or
(i) if Borrower sells, conveys or transfers, voluntarily or
otherwise, its interest in the Property without the prior written consent of
Beneficiary;
then, in any such event, Trustee or Beneficiary may accelerate the Indebtedness
outstanding under this Indenture, and may take such other actions as may be
provided under the Loan Agreement, or at law or in equity.
ARTICLE VI
6. Remedies in Case of Event of Default.
6.1. Legal Proceedings and Foreclosure. If an Event of Default
shall have occurred, Trustee or Beneficiary may proceed by suit or suits at law
or in equity or by any other appropriate remedy to protect and enforce its
rights hereunder, whether for the specific performance of any covenant or
agreement contained herein, or for an injunction against the violation of any of
the terms hereof, or in aid of the exercise of any right, power or remedy
available to it, or to enforce the payment of the
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Indebtedness under the Loan Agreement, or to foreclose the lien and security
interest of this Indenture as against all or any part of the Property and to
have all or any part of the Property sold, in any manner permitted by law, under
the judgment or decree of a court or courts of competent jurisdiction, or
otherwise, and to pursue any other remedy available to it. If Beneficiary
proceeds to foreclose the lien of this Indenture, Beneficiary shall have the
statutory power of sale if permitted by applicable law. In the event of any such
suit or proceeding, Beneficiary and/or Trustee shall comply with any local laws
applicable to any such suits or proceedings. Any such suit or proceeding
instituted by Trustee shall be brought in its name as Trustee and any recovery
or judgement shall be for the benefit of Beneficiary. All costs and expenses
(including, without limitation, reasonable attorney's fees and expenses)
incurred by Trustee or Beneficiary in connection with any such suit or
proceeding, together with interest thereon (to the extent permitted by law)
computed at the Default Rate from the date on which such costs or expenses are
incurred to the date of payment thereof, shall constitute additional
Indebtedness secured by this Indenture and shall be paid by Borrower to Trustee
or Beneficiary, as the case may be, on demand.
6.2. Power of Sale and Procedure. If an Event of Default shall have
occurred, Trustee, at Beneficiary's election, may sell or offer for sale the
Property in such portions, order and parcels as Beneficiary may determine, with
or without having first taken possession of same, to the highest bidder for cash
at public auction. In exercising such power of sale, Trustee shall give such
notice of hearing as to the commencement of the foreclosure proceedings and
shall obtain such findings or leave at court as may then be required by
applicable law and shall give such notice of such foreclosure sale and shall
advertise the time and place of such sale in such manner as may then be provided
by applicable law and shall comply in all respects with all laws applicable to
the institution, conduct, and completion of power of sale foreclosures. Such
sale shall be made in conformance with the laws of the State in which the
Property is located at the courthouse door of the county wherein the Property is
situated. All aspects of any power of sale foreclosure commenced by Trustee
hereunder shall be accomplished in such manner as permitted or required by State
law in existence on the date hereof relating to the sale of real estate and/or
relating to the sale of collateral after a default by a debtor, as the same may
be amended or supplemented, or by any subsequent laws relating to same. At any
such sale (i) whether made under the power herein contained, State law, any
other legal requirement or by virtue of any judicial proceeding or any other
legal right, remedy or recourse, it shall not be necessary for Trustee to have
physically present, or to have constructive possession of, the Property
(Borrower hereby covenanting and agreeing to deliver to Trustee any portion of
the Property not actually or constructively possessed by Trustee immediately
upon demand by Trustee) and the title to and right of possession of any such
property shall pass to the purchaser thereof as completely as if the same had
been actually present and delivered to such purchaser at such sale,
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and (ii) the receipt of Trustee or of such other party or officer making the
sale shall be a sufficient discharge to the purchaser or purchasers for his or
their purchase money and no such purchaser or purchasers, or his or their
assigns or personal representatives, shall thereafter be obligated to see to the
application of such purchase money or be in any way answerable for any loss,
misapplication or non-application thereof.
6.3. Acceleration of Maturity. If an Event of Default shall have
occurred, Beneficiary may declare the entire outstanding Indebtedness under the
Loan Agreement, and all other sums secured hereby, to be due and payable
immediately, and upon such declaration, such Indebtedness and other sums shall
immediately become and be due and payable without demand or notice.
6.4. Leases. Trustee at the option of Beneficiary is authorized to
foreclose this Indenture subject to the rights of any tenants of the Property,
and the failure to make any such tenants parties defendant to any such
foreclosure proceedings and to foreclose their rights will not be, nor be
asserted by Borrower to be, a defense to any proceedings instituted by Trustee
and/or Beneficiary to collect the sums secured hereby or to collect any
deficiency remaining unpaid after the foreclosure sale of the Property.
6.5. Suits to Protect the Property. Beneficiary, or Trustee at
Beneficiary's election, shall have the power and authority to institute and
maintain any suits and proceedings as Beneficiary may deem advisable (a) to
prevent any impairment of the Property by any acts which may be unlawful or any
violation of this Indenture, (b) to preserve or protect its interest in the
Property, and (c) to restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order might impair the security hereunder or be
prejudicial to Beneficiary's interest.
6.6. Discontinuance of Proceedings; Position of Parties Restored.
If Beneficiary, or Trustee at Beneficiary's election, shall have proceeded to
enforce any right or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to Beneficiary, then and in
every such instance, Borrower and Beneficiary shall, except to the extent
modified by such proceedings, be restored to their former positions and rights
hereunder, and all rights, powers and remedies of Beneficiary shall continue as
if no such proceeding had occurred or had been taken.
6.7. Borrower to Pay the Indebtedness on Any Default in Payment;
Application of Monies by Beneficiary.
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(a) If an Event of Default shall occur as a result of Borrower's
failure to pay any amount due under the Loan Agreement or this Indenture, then,
upon Beneficiary's demand, Borrower will pay to Beneficiary the whole amount due
and payable under the Loan Agreement and all other sums secured hereby. If
Borrower shall fail to pay the same forthwith upon such demand, Beneficiary, or
Trustee at Beneficiary's election, shall be entitled to xxx for and to recover
judgment for the whole amount so due and unpaid together with costs and
expenses, including the reasonable compensation, expenses and disbursements of
Beneficiary's agents, attorneys and other representatives. Beneficiary shall be
entitled to xxx and recover judgment as aforesaid either before, after or during
the pendency of any proceedings for the enforcement of this Indenture, and the
right of Beneficiary to recover such judgment shall not be affected by any
taking of possession or foreclosure sale hereunder, or by the exercise of any
other right, power or remedy for the enforcement of the terms of this Indenture,
or the foreclosure of the lien hereof.
(b) In case of a foreclosure sale of all or any part of the
Property and of the application of the proceeds of sale to the payment of the
sums secured hereby, Beneficiary shall be entitled to enforce payment of and to
receive all amounts then remaining due and unpaid and to recover judgment for
any portion thereof remaining unpaid, with interest.
(c) Borrower hereby agrees, to the extent permitted by law, that
no recovery of any such judgment by Beneficiary and no attachment or levy of any
execution upon any of the Property or any other property shall in any way affect
the lien of this Indenture upon the Property or any part thereof or any lien,
rights, powers or remedies of Beneficiary hereunder, but such lien, rights,
powers and remedies of Beneficiary hereunder shall continue unimpaired as
before.
ARTICLE VII
7.1. Purchase of the Property by Beneficiary. Beneficiary may be a
purchaser of the Property or any part thereof or any interest therein at any
sale thereof, whether pursuant to foreclosure, power of sale or otherwise, and
may apply the Indebtedness secured hereby to the purchase price.
7.2. Title Upon Sale; Receipt a Sufficient Discharge to Purchaser.
After the occurrence of an Event of Default hereunder, and upon the sale of the
Property or any part thereof or any interest therein by Trustee or Beneficiary,
whether pursuant to foreclosure, power of sale or otherwise, the purchaser shall
acquire good title thereto, free of the lien of this Indenture and free of all
rights of redemption, whether statutory, equitable or otherwise, in Borrower to
the extent permitted by applicable law. The receipt of the officer making the
sale under judicial proceedings or of Trustee or
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Beneficiary shall be sufficient discharge to the purchaser for the purchase
money, and such purchaser shall not be obligated to see to the application
thereof. All occupants of the Property sold or any part thereof shall become
tenants at sufferance of the purchaser, and as long as a tenant is not in
default under its Lease, the purchaser will not disturb the occupancy of such
tenant of the Property during the term of its Lease. It shall not be necessary
for the purchaser at any such sale to bring any action for possession to the
Property purchased other than statutory action of forcible detainer in any
justice court having jurisdiction.
7.3. Application of Indebtedness Toward Purchase Price. If
Beneficiary purchases the Property pursuant to foreclosure, power of sale or
otherwise, then Beneficiary may, in lieu of cash, apply all or any portion of
the sums due to Beneficiary under the Loan Agreement and this Indenture or any
other instrument securing the Indebtedness, to the unpaid balance of the
purchase price remaining after payment of any portion of the purchase price
required to be paid in cash, and the costs and expenses of the sale,
compensation and other charges relating to the sale.
ARTICLE VIII
8. Waiver of Appraisement, Valuation, Etc. Borrower hereby
waives, to the full extent it may lawfully do so, the benefit of all
appraisement, valuation, stay, moratorium, exemption from execution, extension
and redemption laws now or hereafter in force and all rights of marshaling in
the event of the sale of the Property or any part thereof or any interest
therein.
ARTICLE IX
9. Appointment of Receiver. If an Event of Default shall have
occurred, Trustee and/or Beneficiary shall, as a matter of right and to the
fullest extent permitted by applicable law, be entitled, ex parte and without
notice, to the appointment of a receiver or receivers of the Property or any
part thereof, whether such receivership be incidental to a proposed sale thereof
or otherwise, and Borrower hereby consents to the appointment of such a receiver
or receivers and will not oppose any such appointment. The expenses, including
receiver's fees, attorney's fees, costs and agent's compensation, incurred
pursuant to the powers herein contained shall be secured by this Indenture.
ARTICLE X
10. Possession, Management and Income. If an Event of Default
shall have occurred under this Indenture, Trustee or Beneficiary, without
further notice, may enter upon and take possession of the Property or any part
thereof, in any manner permitted
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by law, by reasonable force, summary proceedings, ejectment or otherwise and may
remove Borrower and all other Persons and any and all property therefrom, and
Trustee or Beneficiary may hold, operate and manage the same, make all necessary
or proper repairs, renewals, and replacements, and useful alterations,
additions, betterments and improvements thereto and thereon as may seem
advisable to either of them, and insure and reinsure the Property as may seem
advisable and to either of them, and may receive all earnings, income, rents,
issues and proceeds accruing with respect thereto. Any amounts so received by
Trustee or Beneficiary shall be applied (a) to pay (i) the expenses of operating
the Property and of all maintenance, repairs, renewals, replacements,
alterations, additions, betterments, improvements, taxes, assessments, insurance
premiums, reasonable compensation for the services of Trustee and all attorneys,
advisors, brokers, receivers, agents and other employees engaged or employed by
Trustee or Beneficiary and all other costs and expenses of entering a bond and
taking possession of and holding the Property, and (ii) any lien prior to the
lien of this Indenture which Beneficiary may consider it necessary or desirable
to discharge and then (b) in the manner provided in Article XI of this
Indenture. If an Event of Default shall have occurred under the Loan Agreement
or if the Loan Agreement shall be terminated, all sums so received by Trustee or
Beneficiary shall be applied in the manner specified in Article XI of this
Indenture.
ARTICLE XI
11. Application of Proceeds. The proceeds of (a) the operation and
management of the Property pursuant to Article X of this Indenture, and (b) any
sale of the Property or any interest therein, shall, unless otherwise provided
in the Loan Agreement, be applied as follows:
First: to the costs and expenses of the sale, reasonable attorneys'
fees and expenses, Trustee's fees and expenses, court costs, and any other
expenses or advances made or incurred in the protection of the rights of Trustee
and Beneficiary or in the pursuance of any remedies hereunder;
Second: to the fullest extent permitted by applicable law, to any lien
prior to the lien of this Indenture which Beneficiary may consider it necessary
or desirable to discharge;
Third: to any Indebtedness secured by this Indenture and at the time
due and payable (whether by acceleration or otherwise;
Fourth: to Beneficiary for payment of the Notes outstanding; and
Fifth: the balance, if any, to Borrower.
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ARTICLE XII
12. Remedies, Etc., Cumulative. Each legal, equitable or
contractual right, power or remedy of Trustee and Beneficiary now or hereafter
provided herein or by statute or otherwise shall be cumulative and concurrent
and shall be in addition to every other right, power and remedy, and the
exercise or beginning of the exercise by Trustee or Beneficiary of any one or
more of such rights, powers and remedies shall not preclude the simultaneous or
later exercise of any or all such other rights, powers and remedies.
ARTICLE XIII
13. No Waiver, Etc. No failure by Trustee or Beneficiary to insist
upon the strict performance of any term hereof or to exercise any right, power
or remedy consequent upon a breach hereof shall constitute a waiver of any such
term or of any such breach. No acceptance of the payment of any sums due under
this Indenture or under the Loan Agreement during the continuance of any Default
shall constitute a waiver thereof. No waiver of any breach shall affect or alter
this Indenture which shall continue in full force and effect with respect to any
other then existing or subsequent breach.
ARTICLE XIV
14. Trustee. (a) All the rights, powers and remedies of
Beneficiary hereunder may be exercised by Trustee. Trustee shall not be under
any obligation to exercise any trust or power vested in him by this Indenture
unless Beneficiary shall have offered Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred by Trustee in
compliance herewith. Trustee shall not be liable with respect to any action
taken or omitted to be taken by Trustee in accordance with the written
directions of Beneficiary, except for Trustee's own bad faith, willful
misconduct or negligence. Trustee shall not be required to ascertain or inquire
as to the performance or observance of any of the covenants or agreements of
Borrower herein, and in the absence of written notice from Borrower or
Beneficiary stating that a Default has occurred and specifying the same, Trustee
may conclusively assume that no Default exists.
(b) Trustee may, with consent of Beneficiary, consult
with counsel (which may be counsel for Borrower) and the written advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by him hereunder in good
faith and in accordance therewith.
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(c) Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys.
(d) Any moneys received by Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by law.
(e) Beneficiary may, by instrument in writing, filed in
the office or offices where this Indenture has been recorded, and at any time or
from time to time, and without notice and without specifying any reason
therefor, and without applying to any court, remove Trustee and select a
successor trustee or trustees in the event of the death, removal, resignation,
refusal to act, or inability to act of Trustee or, in its sole discretion, for
any reason whatsoever. Trustee so ceasing to act shall duly assign, transfer and
deliver any of the property and monies held by such Trustee to the successor
appointed in Trustee's place. All powers, rights and duties and authority of
Trustee shall thereupon become vested in the successor. The successor shall not
be required to give bond or make an oath for the faithful performance of his
duties unless required by Beneficiary.
(f) Trustee may resign by the giving of notice of such
resignation in writing to Beneficiary.
(g) If more than one Trustee is appointed under this
Indenture, all rights granted to and all powers conferred upon Trustee hereunder
may be exercised by both or either of Trustees.
(h) All reasonable expenses, charges, counsel fees and
other disbursements incurred by Trustee in and about the administration of this
Indenture and executed in the performance of its duties and powers hereunder
shall be secured by this Indenture.
ARTICLE XV
15. Right of Trustee or Beneficiary to Perform Covenants, Etc. If
Borrower shall fail to make any payment or perform any act required to be made
or performed hereunder and such failure shall not be cured within the applicable
grace period, if any, Trustee or Beneficiary, without notice to or demand upon
Borrower and without waiving or releasing any obligation or Default, may (but
shall be under no obligation to) at any time thereafter make such payment or
perform such act for the account and at the expense of Borrower and may enter
upon the Property or any part thereof for such purpose and take all such action
thereon as, in the opinion of Trustee or Beneficiary, may be necessary or
appropriate therefor. All sums so paid by Trustee or
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Beneficiary and all costs and expenses (including, without limitation,
attorneys' fees and expenses) so incurred shall constitute additional
Indebtedness secured by this Indenture and shall be paid by Borrower to Trustee
or Beneficiary on demand.
ARTICLE XVI
16. Certificate as to No Default, Etc.; Information. At any time
and from time to time, Borrower will deliver to Beneficiary, promptly upon
request, a certificate signed by a duly authorized officer of Borrower stating
that, to the best of the signer's knowledge after making due inquiry, there is
no Default hereunder, or if any such Default exists to his knowledge, specifying
the nature and period of existence thereof and what action Borrower is taking or
proposes to take with respect thereto. Borrower will also furnish promptly to
Beneficiary, such information with respect to the Property and the Leases as may
from time to time be requested.
ARTICLE XVII
17. Additional Instruments. Borrower, at its expense, will
execute, acknowledge, secure and deliver all such instruments and take all such
action as Trustee or Beneficiary from time to time may reasonably request for
the better assuring of the Property, rights and obligations now or hereafter
subjected to the security of this Indenture or intended so to be.
ARTICLE XVIII
18. Defeasance. This Indenture and the lien created hereby shall
terminate after the payment in full of (a) all the Indebtedness and (b) all
other sums secured hereby. Upon such termination, and upon surrender of this
Indenture for cancellation, Beneficiary shall release, without warranty, the
Property then subject to the lien hereof to the Persons entitled thereto. The
recitals in any reconveyance executed under this Indenture of any matters of
fact shall be conclusive proof of the truthfulness thereof. The grantee in such
release may be described as "the person or persons legally entitled thereto".
Trustee and/or Beneficiary, at Borrower's expense, shall execute and deliver
such instruments of release, satisfaction and termination in proper form for
recording or filing, as may be appropriate to evidence the release of (a) the
Property from the lien created hereby, and (b) any other security held by
Trustee and/or Beneficiary and such satisfaction and termination, and such
instruments, when duly executed, recorded and filed, shall conclusively evidence
the release, satisfaction and termination of this Indenture.
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ARTICLE XIX
19. Applicable Law; Severability.
(a) This Indenture shall be governed by and construed in
accordance with the laws of the State.
(b) All rights, powers and remedies provided herein may be
exercised only to the extent that the exercise thereof does not violate any
applicable law, and are intended to be limited to the extent necessary so that
they will not render this Indenture invalid, unenforceable or not entitled to be
recorded, registered or filed under any applicable law. If any term or provision
of this Indenture shall be held to be invalid, illegal or unenforceable, the
validity of the other terms and provisions hereof shall in no way be affected
thereby.
ARTICLE XX
20. Miscellaneous. This Indenture (a) may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought, and (b) shall be binding upon Borrower, its successors and assigns, and
all Persons claiming under or through Borrower or any such successor or assign,
and shall inure to the benefit of and be enforceable by Trustee and its
successors and Beneficiary and its successors and assigns. The headings in this
Indenture are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof. All agreements between Borrower and Beneficiary,
whether now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of demand or
acceleration of the maturity of any payments hereunder or under the Loan
Agreement or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to Beneficiary exceed the maximum amount permissible
under applicable law. If, in any circumstance whatsoever, interest would
otherwise be payable to Beneficiary in excess of the maximum lawful amount, and
if in any circumstance Beneficiary shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, and if
permitted by applicable law, an amount equal to any excessive interest shall be
applied to the reduction of advances under the Loan Agreement and not to the
payment of interest, or if such excessive interest exceeds the unpaid advances
under the Loan Agreement, such excess shall be refunded to Borrower. All
interest paid or agreed to be paid to Beneficiary shall, to the extent permitted
by applicable law, be amortized, prorated, allocated, and spread throughout the
full period until payment in full of the principal so that the interest hereon
for such full period shall not exceed the maximum amount permitted by applicable
law. This paragraph shall control all agreements between Borrower and
Beneficiary. This Indenture may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall
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constitute one and the same instrument. Portions of the Property consist of
goods which are, or are to become, fixtures relating to the Land and Borrower
expressly covenants and agrees that the filing of this Indenture in the real
estate records of the county where the Property is located shall also operate
from the time of filing therein as a financing statement filed as a fixture
filing in accordance with Article 9 of the State's Uniform Commercial Code -
Secured Transactions.
ARTICLE XXI
21. Change in Method of Taxation. In the event of the passage,
after the date of this Indenture, of any law changing in any way the laws now in
force for the taxation of mortgages or debts secured thereby, for state or local
purposes, or the operation of any such taxes so as to adversely affect the
interest of Beneficiary in the Property, this Indenture or the Loan Agreement,
Borrower shall, upon demand, bear and pay the full amount (or any partial
amount) requested by Beneficiary, of taxes resulting from such changes hereunder
without offset or credit against any other sums due under the Loan Agreement or
on the Notes.
ARTICLE XXII
22. Trustee's Acceptance. Trustee accepts the trust created hereby
when this Indenture, duly executed and acknowledged, is made a public record in
the State and county where the Property is located, as provided by the laws of
the State.
ARTICLE XXIII
23. No Petition. Trustee and Beneficiary hereby covenant and agree
that they will not institute against, or join any Person in instituting against
Borrower, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law at any time other than on a date which is at least one
(1) year and one (1) day after the payment in full of the Notes; provided,
however, that nothing in this Article shall constitute a waiver of any right to
indemnification, reimbursement or other payment from Borrower pursuant to the
Loan Agreement.
ARTICLE XXIV
24. Indenture Secures Future Advances. This Indenture is given to
secure not only the amount initially secured by this Indenture, but also such
future advances, whether such advances are obligatory or are to be made at the
option of Trustee or Beneficiary, or otherwise, as are made within fifteen (15)
years from the date hereof, to the same extent as if such future advances were
made on the date of the execution
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of this Indenture. The total amount of Indebtedness presently secured hereby is
One Hundred Million Dollars ($100,000,000.00) and the Indebtedness (including
present and future obligations) that may be so secured may decrease or increase
from time to time, but the total unpaid balance so secured at one time shall not
exceed One Hundred Million Dollars ($100,000,000.00). This Indenture secures a
revolving line of credit under which Advances may be made, repaid, and
reborrowed on a revolving basis as provided for in the Loan Agreement.
ARTICLE XXV
25. Approval of Legal Description. Borrower has read and does
hereby approve the legal description of the Land which Is the subject hereof, as
set forth in Exhibit A attached hereto, and hereby indemnifies Trustee and
Beneficiary and their attorneys with respect to any liability which might arise
as a consequence of any error or omission therein.
ARTICLE XXVI
26. Loan Agreement. The terms, provisions, conditions,
representations and warranties and covenant of the Loan Agreement are
incorporated herein by reference. In the event of a conflict between this
Indenture and the Loan Agreement, the Loan Agreement shall control. The Loan
Agreement contains provisions permitting Borrower to obtain releases of portions
of the Property from this Indenture from time to time.
IN WITNESS WHEREOF, Borrower has caused this Indenture to be executed
and attested by its proper officers thereunto duly authorized, as of the day and
year first above written and has executed the same in order that this Indenture
may qualify as a financing statement under the Uniform Commercial Code of the
State as to such of the Property, if any, constitutes personalty.
XXXXX EQUITY, INC.,
Attest: a Florida corporation
By: /s/ W. Xxxxxxxx Xxxxxxx By: /s/ G. Xxxxx Xxxxxxx
--------------------------------- ------------------------------
Name: W. Xxxxxxxx Xxxxxxx Name: G. Xxxxx Xxxxxxx
------------------------------- ----------------------------
Its: Secretary Title: Treasurer
------------ ---------------------------
[AFFIX CORPORATE SEAL]
STATE OF Georgia :
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COUNTY OF Camden :
------------
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I, Xxx Xxxxx, a Notary Public of the County of Camden, State of
Georgia, do hereby certify that W. Xxxxxxxx Xxxxxxx, personally appeared
before me this day and acknowledged that he/she is the _______ Secretary of
XXXXX EQUITY, INC., a Florida corporation, and that by authority duly given and
as an act of the corporation, the foregoing instrument was signed in its name by
its Treasurer, sealed with its corporate seal, and attested by himself/herself
as its Secretary.
Witness my hand and official seal this 29th day of December, 1997.
/s/ Xxx Xxxxx
-------------------------------------
Notary Public Camden County, Georgia
My commission expires: Feb. 1, 1999
---------------
[NOTARIAL SEAL]
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EXHIBIT A
The Land
[Contained herein is the metes and bounds legal descriptions of the property.]
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EXHIBIT B
Permitted Encumbrances
[Documents attached were excerpts as shown in Title Commitment.]
