Exhibit 10(a)(3)(A)
PREPARED BY AND
AFTER RECORDING RETURN TO:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxx, LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000
DEED TO SECURE DEBT
AND SECURITY AGREEMENT
(GEORGIA)
THIS DEED TO SECURE DEBT AND SECURITY AGREEMENT (this "Security Deed") is made
and entered into as of this 28th day of December, 2001, by and between XXXXX
EQUITY, INC., a Florida corporation, having a mailing address of 000 Xxxxx Xxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 ("Grantor"), and FLEET NATIONAL BANK, a
national banking association ("Fleet"), having a mailing address of 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Structured Real Estate, as Agent for
itself and each other lender (collectively, the "Lenders") which is or may
hereafter become a party to that certain Revolving Credit Loan Agreement, dated
as of December 28 , 2001, by and among Grantor, Fleet, as Grantee and Lenders
(as the same may be varied, amended, restated, renewed, consolidated, extended
or otherwise supplemented from time to time, the "Credit Agreement") (Fleet, in
its capacity as Agent under the Credit Agreement, is hereinafter referred to as
"Grantee").
W I T N E S S E T H:
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00) and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to secure the indebtedness and other obligations of
Grantor hereinafter set forth, Grantor does hereby GRANT, BARGAIN, SELL, CONVEY,
ASSIGN, TRANSFER, and SET OVER unto Grantee, for the ratable benefit of Lenders
and their successors and assigns all of the following described land and
interests in land, estates, easements, rights, improvements, property, fixtures,
equipment, furniture, furnishings, appliances and appurtenances (collectively,
the "Property"):
(a) All those tracts or parcels of land and easements more
particularly described in Exhibit "A" attached hereto and by this reference made
a part hereof (the "Land").
(b) All buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land, and all gas and electric
fixtures, radiators, heaters, engines and machinery, boilers, ranges, elevators
and motors, plumbing and heating fixtures, carpeting and other floor coverings,
fire extinguishers and any other safety equipment required by governmental
regulation or law, water heaters, mirrors, mantels, air conditioning apparatus,
refrigerating plants, refrigerators, cooking apparatus and appurtenances, window
screens, awnings and storm sashes, which are or shall be owned by Grantor and
attached to said buildings, structures or improvements and all other
furnishings, furniture, fixtures, machinery, equipment, appliances, vehicles,
building supplies and materials, books and records, chattels, inventory,
accounts, farm products, consumer goods, general intangibles and personal
property of every kind and nature whatsoever now or hereafter owned by Grantor
and located in, on or about, or used or intended to be used with or in
connection with the use, operation or enjoyment of the Property, including all
extensions, additions, improvements, betterments, after-acquired property,
renewals, replacements and substitutions, or proceeds from a permitted sale of
any of the foregoing, and all the right, title and interest of Grantor in any
such furnishings, furniture, fixtures, machinery, equipment, appliances,
vehicles and personal property subject to or covered by any prior security
agreement, conditional sales contract, chattel mortgage or similar lien or
claim, together with the benefit of any deposits or payments now or hereafter
made by Grantor or on behalf of Grantor, all of which are hereby declared and
shall be deemed to be fixtures and accessions to the Land and a part of the
Property as between the parties hereto and all persons claiming by, through or
under them, and which shall be deemed to be a portion of the security for the
indebtedness herein described and to be secured by this Security Deed.
(c) All easements, rights-of-way, strips and gores of land,
vaults, streets, ways, alleys, passages, sewer rights, waters, water courses,
water rights and powers, minerals, flowers, shrubs, crops, trees, timber and
other emblements now or hereafter located on the Land or under or above the same
or any part or parcel thereof, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments and appurtenances, reversion and
reversions, remainder and remainders, whatsoever, in any way belonging, relating
or appertaining to the Land or any part thereof, or which hereafter shall in any
way belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Grantor.
(d) All income, rents, issues, profits and revenues of the
Property from time to time accruing (including, without limitation, all payments
under leases or tenancies (collectively, the "Leases"), proceeds of insurance,
condemnation payments, tenant security deposits whether held by Grantor or in a
trust account, and escrow funds), and all the estate, right, title, interest,
property, possession, claim and demand whatsoever at law, as well as in equity,
of Grantor of, in and to the same; reserving only the right to Grantor to
collect the same (other than insurance proceeds and condemnation payments) so
long as Grantor is not in default hereunder.
(e) All right, title and interest, if any, of Grantor in all
transferable building service, building maintenance, construction, development,
management, indemnity, and other similar agreements and contracts, written or
oral, express or implied, now or hereafter entered into, arising or in any
manner related to the construction, design, improvement, use, operation,
ownership, occupation, enjoyment, sale, conversion or other disposition
(voluntary or involuntary) of the Property, or the buildings and improvements
now or hereafter located thereon, or any other interest in the Property, or any
combination thereof, including without limitation all property management
agreements, sales contracts, purchase options, option agreements, rights of
first refusal, contract deposits, xxxxxxx money deposits, prepaid items and
payments due and to become due thereunder, and further including all payment and
performance bonds, construction guaranties, warranties and other undertakings,
construction contracts, architects agreements, general contract agreements,
design agreements, engineering agreements, technical service agreements,
architectural plans and specifications, drawings, surveys, renderings and
models, sewer and water and other utility agreements, permits, approvals,
licenses, agreements, contracts, building permits, service contracts,
advertising contracts, purchase orders and equipment leases, personal property
leases, tradenames, trademarks, servicemarks and logos, and all goodwill
symbolized thereby or pertaining thereto and all causes of action relating
thereto.
(f) All accounts, instruments, accounts receivable, documents,
causes of action, claims, all right, title and interest, if any, of Grantor in
names by which the Property or the improvements thereon may be operated or
known, all rights of Grantor to carry on business under such names, all right,
title and interest, if any, of Grantor in all telephone numbers or listings, all
rights, interest and privileges of which Grantor may have as developer or
declarant under any covenants, restrictions or declarations now or hereafter
relating to the Property or the improvements thereon, and all notes or chattel
paper now or hereafter arising from or by virtue of any transactions relating to
the Property or the improvements located thereon.
(g) All assets of Grantor related to the ownership or
operation of the Property or the improvements now or hereafter erected thereon,
including, without limitation, accounts (including, without limitation,
health-care-insurance receivables), chattel paper (whether tangible or
electronic), deposit accounts, documents, general intangibles (including,
without limitation, payment intangibles and software), goods (including, without
limitation, inventory, equipment, fixtures and accessions), instruments
(including, without limitation, promissory notes), investment property,
letter-of-credit rights, letters of credit, money, supporting obligations,
as-extracted collateral, timber to be cut and all proceeds and products of
anything described or referred to above in this Subsection (g), in each case as
such terms are defined under the Uniform Commercial Code as in effect in the
applicable jurisdiction.
(h) All cash funds, deposit accounts and other rights and
evidence of rights to cash, now or hereafter created or held by Grantee pursuant
to this Security Deed, the Credit Agreement or any other of the Loan Documents
(as defined in the Credit Agreement).
(i) All proceeds, products, substitutions and accessions
of the foregoing of every type.
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, to the use, benefit and behoof of Grantee for the ratable
benefit of Lenders and their respective successors and assigns, IN FEE SIMPLE
forever; and Grantor covenants that Grantor is lawfully seized and possessed of
the Property as aforesaid, and has good right to convey the same, that the same
is unencumbered except for those matters expressly set forth in Exhibit "B"
attached hereto and by this reference made a part hereof (the "Permitted
Encumbrances"), and that Grantor does warrant and will forever defend the title
thereto against the claims of all persons whomsoever, except as to those matters
set forth in said Exhibit "B" attached hereto.
THIS CONVEYANCE is intended to operate and is to be construed as a deed passing
the title to the Property to Grantee and is made under those provisions of the
existing laws of the State of Georgia relating to deeds to secure debt, and not
as a mortgage, and is given to secure the following described indebtedness
(collectively, the "Secured Obligations"):
(a) The debt evidenced by (i) those certain Revolving Credit
Notes made by Grantor in the aggregate principal amount of One Hundred
Twenty-Five Million and No/100 Dollars ($125,000,000), and that certain
Swingline Note made by Grantor in the principal amount of Two Million Five
Hundred Thousand and No/100 Dollars ($2,500,000), each of which has been issued
pursuant to the Credit Agreement and each of which is due and payable in full on
or before December 27, 2004 and (ii) each other note as may be issued under the
Credit Agreement, each as originally executed, or if varied, extended,
supplemented, consolidated, amended, replaced, renewed, modified or restated
from time to time as so varied, extended, supplemented, consolidated, amended,
replaced, renewed, modified or restated (collectively, the "Note").
(b) The payment, performance and discharge of each and every
obligation, covenant and agreement of Grantor contained herein, in the Credit
Agreement, and in the other Loan Documents (as defined in the Credit Agreement).
(c) Any and all additional advances made by any Lender to
protect or preserve the Property or the lien and security title hereof in and to
the Property, or for taxes, assessments or insurance premiums as hereinafter
provided (whether or not Grantor remains the owner of the Property at the time
of such advances).
(d) Any and all other indebtedness now or hereafter owing by
Grantor to any Lender pursuant to the terms of the Credit Agreement, whether now
existing or hereafter arising or incurred, however evidenced or incurred,
whether express or implied, direct or indirect, absolute or contingent, due or
to become due, including, without limitation, all principal, interest, fees,
expenses, yield maintenance amounts and indemnification amounts, and all
renewals, modifications, consolidations, replacements and extensions thereof.
(e) All reasonable out-of-pocket costs and expenses incurred
by the Grantee in connection with the enforcement and collection of the Secured
Obligations, including, without limitation, all attorneys' fees and
disbursements, and all other such costs and expenses described in and incurred
pursuant to the Note, the Credit Agreement, this Security Deed, and the other
Loan Documents (as defined in the Credit Agreement) (collectively, the
"Enforcement Costs").
Should the Secured Obligations secured by this Security Deed be paid according
to the tenor and effect thereof when the same shall become due and payable, and
should Grantor perform all covenants herein contained in a timely manner, then
this Security Deed shall be cancelled and surrendered.
Grantor hereby further covenants and agrees with Grantee as follows:
ARTICLE 1
1.01 Payment of Secured Obligations. Grantor will pay the Secured
Obligations according to the tenor thereof and all other sums now or hereafter
secured hereby promptly as the same shall become due.
1.02 Representations and Warranties. Grantor represents and warrants to
Grantee, for the ratable benefit of Lenders, that, as of the date hereof:
(a) Grantor has good and marketable title in fee to such of the Property as is
real property, subject to no liens, encumbrances or restrictions other than
Permitted Encumbrances. There has been no labor or materials furnished to the
Property on behalf of Grantor that has not been paid for in full or for which
payment will not be made in the ordinary course.
(b) Grantor has no actual notice, information or knowledge of any change
contemplated in (i) any applicable law, ordinance, regulation, or restriction;
(ii) any judicial, administrative, governmental or quasi-governmental action;
(iii)of any action by adjacent land owners; or (iv) of any natural or artificial
conditions existing upon the Property, which would materially limit, restrict,
or prevent the contemplated or intended use and purpose of the Property.
(c) There is no pending condemnation or similar proceeding affecting the
Property, or any portion thereof, nor, to the best knowledge of Grantor, is any
such action being presently contemplated.
(d) No part of the Property is being used for agricultural purposes or being
used for a personal residence by Grantor or any shareholder of Grantor.
(e) The Property is undamaged by fire, windstorm, or other casualty.
(f) The Property complies in all material respects with all zoning and
subdivision ordinances, energy and environmental codes, building and use
restrictions and codes, and any requirements with respect to licenses, permits
and agreements necessary for the lawful use and operation of the Property, or,
to the extent of any non-compliance with zoning and building codes, the Property
is a valid non-conforming use pursuant to the applicable zoning and building
codes.
(g) The heating, electrical, sanitary sewer plumbing, storm sewer plumbing,
potable water plumbing and other building equipment, fixtures and fittings in
the existing improvements on the Property are in good condition and working
order, are adequate in quantity and quality for normal and usual use, and are
fit for the purposes intended and the use contemplated.
(h) The Property is covered by a tax parcel(s) which pertain to the Property
only and not to any property which is not subject to this Security Deed.
(i) The Property is improved with office buildings and related parking and has
frontage on, and direct access for ingress and egress to a public street.
1.03 Taxes, Liens and Other Charges.
(a) In the event of the passage of any state, federal, municipal or other
governmental law, order, rule or regulation, subsequent to the date hereof, in
any manner changing or modifying the laws now in force governing the taxation of
debts secured by deeds to secure debt or the manner of collecting taxes so as to
materially adversely affect Lenders, Grantor will promptly pay any such tax. If
Grantor fails to make such prompt payment or if, in the opinion of Grantee, any
such state, federal, municipal, or other governmental law, order, rule or
regulation prohibits Grantor from making such payment or would penalize Lenders
if Grantor makes such payment or if, in the opinion of Grantee, the making of
such payment might result in the imposition of interest beyond the maximum
amount permitted by applicable law, then the entire balance of the principal sum
secured by this Security Deed and all interest accrued thereon shall, at the
option of Grantee, become due and payable unless, within ninety (90) days
thereafter, Grantor shall substitute property unaffected by such tax
considerations for the Property and otherwise satisfy the conditions for release
of the Property set forth in Section 5.5 of the Credit Agreement.
(b) Grantor will pay all taxes, liens, assessments and charges of every
character including all utility charges, whether public or private, already
levied or assessed or that may hereafter be levied or assessed upon or against
the Property as required under the Credit Agreement. If the Grantee shall
collect escrow funds under Section 7.8 of the Credit Agreement with respect to
such taxes, liens, assessments and charges, such funds will be made available
for payment of the same.
(c) Grantor will not suffer any mechanic's, materialmen's, laborer's, statutory
or other lien to be created and to remain outstanding upon all or any part of
the Property other than Permitted Encumbrances.
1.04 Insurance.
(a) Grantor shall procure for, deliver to and maintain for the benefit of
Grantee and Lenders during the term of this Security Deed, original insurance
policies (or a master policy) issued by insurance companies, in amounts, in form
and substance, and with expiration dates reasonably acceptable to Grantee and
containing non-contributory standard mortgagee clauses, their equivalent or a
satisfactory mortgagee loss payable endorsement in favor of Grantee, providing
the following types of insurance on the Property:
(i) insurance against loss or damage by fire, lightning, vandalism, malicious
mischief and flood (if the Land is in an area which is considered a flood risk
area by the U.S. Department of Housing and Urban Development), and against such
other hazards as are presently included in so-called "all risk replacement cost
insurance" and against such other insurable hazards as, under good insurance
practices, from time to time are insured against for properties of similar
character and location; the amount of which insurance shall be not less than one
hundred percent (100%) of the full replacement cost of the Property without
deduction for depreciation; and which policies of insurance shall contain
satisfactory replacement cost endorsements;
(ii) During the course of construction or repair of any improvements on the
Land, the insurance required by clause (i) above shall be written on a builders
risk, completed value, non-reporting form, meeting all of the terms required by
clause (i) above, covering the total value of work performed, materials,
equipment, machinery and supplies furnished, existing structures, and temporary
structures being erected on or near the Land, including coverage against
collapse and damage during transit or while being stored off-site, and
containing a soft costs (including loss of rents) coverage endorsement and a
permission to occupy endorsement;
(iii) rent or business interruption insurance against loss of income arising out
of damage or destruction by fire, lightning, vandalism, malicious mischief and
flood and such other hazards as are presently included in so-called "all risk
replacement cost insurance" in the amount equal to the gross annual income
derived by Grantor from the Property; and
(iv) Commercial general liability insurance against claims for personal injury
(to include, without limitation, bodily injury and personal and advertising
injury) and property damage liability, all on an occurrence basis, if
commercially available, with such coverages as the Grantee may reasonably
request (including, without limitation, contractual liability coverage,
completed operations coverage for a period of two years following completion of
construction of any improvements on the Land, and coverages equivalent to an ISO
broad form endorsement), with a general aggregate limit of not less than
$2,000,000, a completed operations aggregate limit of not less than $2,000,000,
and a combined single "per occurrence" limit of not less than $1,000,000 for
bodily injury and property damage and $5,000 for medical payments;
(v) During the course of construction or repair of any improvements on the Land,
to the extent not provided by the general contractor, owner's contingent or
protective liability insurance covering claims not covered by or under the terms
or provisions of the insurance required by clause (iv) above;
(vi) Employers liability insurance;
(vii) Umbrella liability insurance with limits of not less than $20,000,000 to
be in excess of the limits of the insurance required by clauses (iv), (v) and
(vi) above, with coverage at least as broad as the primary coverages of the
insurance required by clauses (iv), (v) and (vi) above, with any excess
liability insurance to be at least as broad as the coverages of the lead
umbrella policy. All such policies shall be endorsed to provide defense coverage
obligations;
(viii) Workers' compensation insurance for all employees of the Grantor; and
(ix) Such other insurance in such form and in such amounts as may from time to
time be reasonably required by the Grantee against other insurable hazards and
casualties which at the time are commonly insured against in the case of
properties of similar character and location to the Property.
Grantor shall pay all premiums on insurance policies. The insurance policies
provided for in clauses (iv), (v) and (vii) above with respect to the Property
shall name the Grantee and each Lender as an additional insured and shall
contain a cross liability/severability endorsement. The insurance policies
provided for in clauses (i), (ii), and (iii) above shall name the Grantee as
mortgagee and loss payee, shall be first payable in case of loss to the Grantee,
and shall contain mortgagee clauses and lender's loss payable endorsements in
form and substance reasonably acceptable to the Grantee. Grantor shall deliver
duplicate originals or certified copies of all such policies to the Grantee.
All policies of insurance required by this Security Deed shall contain clauses
or endorsements to the effect that (i) no act or omission of the Grantor or any
of its subsidiaries or anyone acting for the Grantor or any such subsidiary
(including, without limitation, any representations made in the procurement of
such insurance), which might otherwise result in a forfeiture of such insurance
or any part thereof, no occupancy or use of the Property for purposes more
hazardous then permitted by the terms of the policy, and no foreclosure or any
other change in title to the Property or any part thereof, shall affect the
validity or enforceability of such insurance insofar as the Grantee is
concerned, (ii) the insurer waives any right of setoff, counterclaim,
subrogation, or any deduction in respect of any liability of the Grantor or any
such subsidiary and the Grantee, (iii) such insurance is primary and without
right of contribution from any other insurance which may be available, (iv) such
policies shall not be modified, canceled or terminated prior to the scheduled
expiration date thereof without the insurer thereunder giving at least 30 days
prior written notice to the Grantee by certified or registered mail, and (v)
that the Grantee or the Lenders shall not be liable for any premiums thereon or
subject to any assessments thereunder, and shall in all events be in amounts
sufficient to avoid any coinsurance liability.
Neither the Grantor nor any of its subsidiaries shall carry separate insurance,
concurrent in kind or form or contributing in the event of loss, with any
insurance required under this Security Deed unless such insurance complies with
the terms and provisions of this Section 1.04.
(b) Grantee is hereby authorized and empowered, at its option, after the
occurrence and during the continuance of an Event of Default, to adjust or
compromise any loss under any insurance policies maintained pursuant to this
Paragraph 1.04, and to collect and receive the proceeds from any such policy or
policies. Each insurance company is hereby authorized and directed to make
payment for all such losses directly to Grantee, instead of to Grantor and
Grantee jointly. In the event any insurance company fails to disburse directly
and solely to Grantee but disburses instead either solely to Grantor or to
Grantor and Grantee jointly, Grantor agrees immediately to endorse and transfer
such proceeds to Grantee. Upon the failure of Grantor to endorse and transfer
such proceeds as aforesaid, Grantee may execute such endorsements or transfers
for and in the name of Grantor and Grantor hereby irrevocably appoints Grantee
as Grantor's agent and attorney-in-fact so to do. Grantee shall not be held
responsible for any failure to collect any insurance proceeds due under the
terms of any policy regardless of the cause of such failure.
(c) At least thirty (30) days prior to the expiration date of each policy
maintained pursuant to this Paragraph 1.04, a renewal or replacement thereof
complying with the requirements of this Paragraph 1.04 shall be delivered to
Grantee. Grantor shall deliver to Grantee receipts evidencing the payment for
all such insurance policies and renewals or replacements. The delivery of any
insurance policies hereunder shall constitute an assignment of all unearned
premiums as further security hereunder. In the event of the foreclosure of this
Security Deed or any other transfer of title to the Property in extinguishment
of the Secured Obligations secured hereby, all right, title and interest of
Grantor in and to all insurance policies then in force shall pass to the
purchaser or Grantee.
1.05 Condemnation. If all or any "material" portion of the Property shall be
damaged or taken through condemnation (which term when used in this Security
Deed shall include any damage or taking by any governmental authority or any
transfer by private sale in lieu thereof), either temporarily or permanently,
then Grantee shall be entitled to receive all compensation, awards and other
payments or relief thereof, and Grantee is hereby authorized, at its option,
after the occurrence and during the continuance of an Event of Default, to
commence, appear in and prosecute, in its own or in Grantor's name, any action
or proceeding relating to any condemnation, and to settle or compromise any
claim in connection therewith. All such compensation, awards, damages, claims,
rights of action and proceeds and the right thereto are hereby assigned by
Grantor to Grantee. After deducting from said condemnation proceeds all of its
expenses incurred in the collection and administration of such sums, including
reasonable attorney's fees, Grantee may apply the net proceeds or any part
thereof, at its option, (a) to the payment of the Secured Obligations hereby
secured, whether or not due and in whatever order Grantee elects, (b) to the
repair and/or restoration of the Property or (c) for any other purposes or
objects for which Grantee is entitled to advance funds under this Security Deed,
all without affecting the lien of this Security Deed; and any balance of such
monies then remaining shall be paid to Grantor. Grantor agrees to execute such
further assignment of any compensation, awards, damages, claims, rights of
action and proceeds as Grantee may require. For the purposes of this Section
1.05 any condemnation or taking shall be deemed to be "material" in the event
that (a) such taking has a material adverse effect upon the means of access from
the public streets to the improvements or the number of parking spaces available
at the Property (unless Grantor shall provide reasonable substitutes therefor),
(b) the improvements are severed by such taking, (c) the taking makes it
impractical or inefficient (after the restoration or repair of the Property) for
the continued conduct of business at the Property in the same manner as such
business was conducted prior to such taking as determined by Grantee, or (d)
Grantee shall determine that following such repair or restoration there shall be
a fifteen percent (15%) or more reduction in the occupancy or in rental income
(excluding any proceeds from rental loss insurance or proceeds from such award
allocable to rent).
1.06 Restoration and Repair. If all or any part of the Property shall be damaged
by fire or other casualty, Grantor will promptly restore the Property to the
equivalent of its original condition; and if a part of the Property shall be
damaged through condemnation, Grantor will promptly restore, repair or alter the
remaining portions of the Property in a manner satisfactory to Grantee.
Notwithstanding the foregoing, Grantor shall not be obligated to so restore
unless in each instance, Grantee agrees to make available to Grantor (pursuant
to a procedure satisfactory to Grantee) any net insurance or condemnation
proceeds actually received by Grantee hereunder in connection with such casualty
loss or condemnation, to the extent such proceeds are required to defray the
expense of such restoration; provided, however, that the insufficiency of any
such insurance or condemnation proceeds to defray the entire expense of
restoration shall in no way relieve Grantor of its obligation to restore. In the
event all or any portion of the Property shall be damaged or destroyed by fire
or other casualty or by condemnation, Grantor shall promptly deposit with
Grantee a sum equal to the amount by which the estimated cost of the restoration
of the Property (as determined by Grantee in its good faith judgment) exceeds
the actual net insurance or condemnation proceeds received by Grantee in
connection with such damage or destruction.
1.07 Care, Use and Management of Property.
(a) Grantor will keep, or cause to be kept, the buildings, roads and walkways,
landscaping and all other improvements of any kind now or hereafter erected on
the Land or any part thereof in good condition and repair, will not commit or
suffer any material waste and will not do or suffer to be done anything which
will increase the risk of fire or other hazard to the Property or any part
thereof.
(b) Grantor will not remove or demolish nor alter the structural character of
any building located on the Land in a manner that would materially and adversely
affect its value without the written consent of Grantee.
(c) If the Property or any part thereof is materially damaged by fire or any
other cause, Grantor will give immediate written notice thereof to Grantee.
(d) To the extent permitted under the terms of the applicable Leases, each
Lender or its representative is hereby authorized to enter upon and inspect the
Property at any time during normal business hours.
(e) Grantor will promptly comply in all material respects with all present and
future laws, ordinances, rules and regulations of any governmental authority
affecting the Property or any part thereof.
1.08 Leases and Other Agreements Affecting Property. Grantor will duly and
punctually perform in all material respects all terms, covenants, conditions and
agreements binding upon it under any Lease or any other agreement of any nature
whatsoever which involves or affects the Property or any part thereof. Grantor
will not enter into, modify, surrender or terminate, either orally or in
writing, any Lease now existing or hereafter created upon the Property or any
part thereof, nor will Grantor permit an assignment or a subletting by any
tenant other than in accordance with the terms of the Credit Agreement. Grantor
will not accept payment of rent more than one (1) month in advance without the
prior written consent of Grantee. In order to further secure payment of the
Secured Obligations and the observance, performance and discharge of Grantor's
obligations, Grantor hereby collaterally assigns, transfers and sets over unto
Grantee all of Grantor's right, title and interest in, to and under all Leases
affecting the Property or any part thereof and in and to all of the rents,
issues, profits, revenues, awards and other benefits now or hereafter arising
from the use and enjoyment of the Property or any part thereof; reserving only
the right to Grantor to collect and use the same so long as no Event of Default
is continuing.
Grantee shall be entitled to require, and Grantor shall use its best efforts to
obtain, the execution of tenant estoppels and subordination, non-disturbance and
attornment agreements from any Major Tenant (as defined in the Credit Agreement)
in a form specified by the related tenant Lease, if any, and reasonably
acceptable to Grantee. Grantor hereby authorizes and directs each present and
future tenant of the Property to pay to Grantee all rents and any other sums due
Grantor as landlord and to perform for the direct benefit of Grantee any other
obligations of such tenant to Grantor as landlord, as if Grantee were the
landlord under such tenant's Lease, immediately upon receipt of a written demand
by Grantee to make such payment or perform such obligation during the existence
of an Event of Default. No such demand by Grantee shall constitute or be deemed
to constitute any assumption by Grantee of any obligations of the landlord under
such tenant's Lease. No such demand by Grantee shall constitute or be deemed to
constitute any wrongful interference by Grantee in the affairs or business
relationships for ascertaining whether any such demand by Grantee is authorized
or whether a default by Grantor has occurred under this Security Deed. Grantor
hereby waives any right, claim or action Grantor may now or hereafter have
against any such tenant by reason of such tenant's payment to or performance for
Grantee as described above, and any such payment to or performance for Grantee
shall discharge the obligation of such tenant to make such payment to, or
perform such obligation for, Grantor.
Grantor shall furnish the Grantee with signed copies of all new, modified or
renewal Leases affecting the Property, as required pursuant to the terms and
provisions of the Credit Agreement.
1.09 Security Agreement.
(a) Insofar as the machinery, apparatus, equipment, fittings, fixtures, building
supplies and materials, and articles of personal property either referred to or
described in this Security Deed, or in any way connected with the use and
enjoyment of the Property is concerned, this Security Deed is hereby made and
declared to be a security agreement, encumbering each and every item of personal
property (the "Personal Property") included herein, in compliance with the
provisions of the Uniform Commercial Code as enacted in the applicable
jurisdiction as set forth in Section 3.04 below (the "UCC"). A financing
statement or statements reciting this Security Deed to be a security agreement,
affecting all of said personal property aforementioned, shall be appropriately
filed. The remedies for any violation of the covenants, terms and conditions of
the security agreement herein contained shall be (i) as prescribed herein, or
(ii) as prescribed by general law, or (iii) as prescribed by the specific
statutory consequences now or hereafter enacted and specified in said UCC, all
at Grantee's sole election. Grantor and Grantee agree that the filing of such
financing statement(s) in the records normally having to do with personal
property shall never be construed as in any way derogating from or impairing
this declaration and hereby stated intention of Grantor and Grantee that, to the
extent permitted by applicable law, everything used in connection with the
production of income from the Property and/or adapted for use therein and/or
which is described or reflected in this Security Deed, is, and at all times and
for all purposes and in all proceedings both legal or equitable shall be,
regarded as part of the real estate irrespective of whether (i) any such item is
physically attached to the improvements, (ii) serial numbers are used for the
better identification of certain items capable of being thus identified in a
recital contained herein, or (iii) any such item is referred to or reflected in
any such financing statement(s) so filed at any time. Similarly, the mention in
any such financing statement(s) of the rights in and to (1) the proceeds of any
fire and/or hazard insurance policy, or (2) any award in eminent domain
proceedings for a taking or for loss of value, or (3) Grantor's interest as
lessor in any present or future Lease or rights to income growing out of the use
and/or occupancy of the Property, whether pursuant to Lease or otherwise, shall
never be construed as in anyway altering any of the rights of Grantee as
determined by this Security Deed or impugning the priority of Grantee's lien
granted hereby or by any other recorded document, but such mention in such
financing statement(s) is declared to be for the protection of Grantee in the
event any court shall at any time hold with respect to the foregoing (1), (2) or
(3), that notice of Grantee's priority of interest to be effective against a
particular class of persons, must be filed in the UCC records.
(b) Grantor warrants that (i) Grantor's (that is, "Debtor's") correct legal name
(including, without limitation, punctuation and spacing) indicated on the public
record of Grantor's jurisdiction of organization, identity or corporate
structure, residence or chief executive office and jurisdiction of organization
are as set forth in Subparagraph 1.09(c) hereof; (ii) Grantor (that is,
"Debtor") has been using or operating under said name, identity or corporate
structure without change for the time period set forth in Subparagraph 1.09(c)
hereof, and (iii) the location of the collateral secured by this Security Deed
is upon the Land. Grantor covenants and agrees that Grantor shall not change any
of the matters addressed by clauses (i) or (iii) of this Subparagraph 1.09(b),
other than transfer, sale or replacement of personal property in the ordinary
course, unless it has given Grantee thirty (30) days prior written notice of any
such change and has executed or authorized at the request of Grantee, such
additional financing statements or other instruments to be filed in such
jurisdictions as Grantee may deem necessary or advisable in its sole discretion
to prevent any filed financing statement from becoming misleading or losing its
perfected status.
(c) The information contained in this Subparagraph 1.09(c) is provided in order
that this Security Deed shall comply with the requirements of the Uniform
Commercial Code, as enacted in the State of Georgia, for instruments to be filed
as financing statements to the extent permitted by applicable law. The names of
the "Debtor" and the "Secured Party", the identity or corporate structure,
jurisdiction of organization, organizational number, federal tax identification
number, and residence or chief executive office of "Debtor", and the time period
for which "Debtor" has been using or operating under said name and identity or
corporate structure without change, are as set forth in Schedule 1 of Exhibit
"C" attached hereto and by this reference made a part hereof; the mailing
address of the "Secured Party" from which information concerning the security
interest may be obtained, and the mailing address of "Debtor", are as set forth
in Schedule 2 of Exhibit "C" attached hereto; and a statement indicating the
types, or describing the items, of collateral secured by this Security Deed is
set forth hereinabove.
(d) Exhibit "C" correctly sets forth all names and tradenames that Grantor has
used within the last five years, and also correctly sets forth the locations of
all of the chief executive offices of Grantor over the last five years.
(e) The Grantor hereby covenants and agrees that:
(i) Grantor shall not merge or consolidate into, or transfer any of the Property
to, any other person or entity except as permitted under the Credit Agreement.
(ii) Grantor shall, at any time and from time to time, take such steps as
Grantee may reasonably request for Grantee (A) to obtain an acknowledgment, in
form and substance reasonably satisfactory to Grantee, of any bailee having
possession of any of the Property, stating that the bailee holds possession of
such Property on behalf of Grantee, (B) to obtain "control" of any investment
property, deposit accounts, letter-of-credit rights, or electronic chattel paper
(as such terms are defined by the UCC with corresponding provisions thereof
defining what constitutes "control" for such items of collateral), with any
agreements establishing control to be in form and substance reasonably
satisfactory to Grantee, and (C) otherwise to insure the continued perfection
and priority of the Grantee's security interest in any of the Property and of
the preservation of its rights therein. If Grantor shall at any time acquire a
"commercial tort claim" (as such term is defined in the UCC) with respect to the
Property or any portion thereof, Grantor shall promptly notify Grantee thereof
in writing, providing a reasonable description and summary thereof, and shall
execute a supplement to this Security Deed in form and substance acceptable to
Grantee granting a security interest in such commercial tort claim to Grantee.
(iii) Grantor hereby authorizes Grantee, its counsel or its representative, at
any time and from time to time, to file financing statements, amendments and
continuations that describe or relate to the Property or any portion thereof in
such jurisdictions as Grantee may deem necessary in order to perfect the
security interests granted by Grantor under this Security Deed or any other Loan
Document, and such financing statements may contain, among other items as
Grantee may deem advisable to include therein, the federal tax identification
number of Grantor, and may describe the property covered by such financing
statements as "all assets of Grantor," "all personal property of Grantor" or
words of similar effect.
1.10 Further Assurances; After-Acquired Property. At any time, and from time to
time, upon request by Grantee, Grantor will make, execute and deliver or cause
to be made, executed and delivered, to Grantee and, where appropriate, cause to
be recorded and/or filed and from time to time thereafter to be rerecorded
and/or refiled at such time and in such offices and places as shall be deemed
necessary by Grantee, any and all such other and further deeds to secure debt,
security agreements, financing statements, notice filings, continuation
statements, instruments of further assurance, certificates and other documents
as may, in the reasonable opinion of Grantee, be necessary in order to
effectuate, complete, or perfect, or to continue and preserve this Security Deed
as a first and prior lien upon and security title in and to all of the Property,
whether now owned or hereafter acquired by Grantor. Upon any failure by Grantor
so to do, Grantee may make, execute, record, file, re-record and/or refile any
and all such deeds to secure debt, security agreements, financing statements,
continuation statements, instruments, certificates, and documents for and in the
name of Grantor and Grantor hereby irrevocably appoints Grantee the agent and
attorney-in-fact of Grantor so to do. The lien hereof will automatically attach,
without further act, to all after acquired property attached to and/or used in
the operation of the Property or any part thereof.
1.11 Expenses. Grantor will pay or reimburse Grantee, upon demand therefor, for
all reasonable attorney's fees, costs and expenses incurred by Grantee in any
suit, action, legal proceeding or dispute of any kind in which Lenders or
Grantee is made a party or appears as party plaintiff or defendant, affecting or
arising in connection with the Secured Obligations secured hereby, this Security
Deed or the interest created herein, or the Property, including, but not limited
to, the exercise of the power of sale contained in this Security Deed, any
condemnation action involving the Property or any action to protect the security
hereof; and any such amounts paid by Lenders or Grantee shall be added to the
Secured Obligations secured by the lien of this Security Deed.
1.12 Subrogation. Grantee shall be subrogated to the claims and liens of all
parties whose claims or liens are discharged or paid with the proceeds of the
Secured Obligations secured hereby.
1.13 Limit of Validity. If from any circumstances whatsoever fulfillment of any
provision of this Security Deed or of the Note, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
presently prescribed by any applicable usury statute or any other applicable
law, with regard to obligations of like character and amount, then ipso facto
the obligation to be fulfilled shall be reduced to the limit of such validity,
so that in no event shall any exaction be possible under this Security Deed or
under the Note that is in excess of the current limit of such validity, but such
obligation shall be fulfilled to the limit of such validity. The provisions of
this Paragraph 1.13 shall control every other provision of this Security Deed
and of the Note.
1.14 Use of Property. Grantor shall not be permitted to alter or change the use
of the Property or to abandon the Property without the prior written consent of
Grantee.
1.15 Conveyance of Property. Grantor hereby acknowledges to Grantee that (a) the
identity and expertise of Grantor was and continues to be a material
circumstance upon which Grantee has relied in connection with, and which
constitute valuable consideration to Grantee for, the extending to Grantor of
the loan evidenced by the Note, and (b) any change in such identity or expertise
could materially impair or jeopardize the security for the payment of the
Secured Obligations granted to Grantee by this Security Deed. Grantor therefore
covenants and agrees with Grantee, as part of the consideration for the
extending to Grantor of the loans evidenced by the Note, that Grantor shall not
convey, transfer, assign, further encumber or pledge any or all of its interest
in the Property except as permitted under the Credit Agreement.
ARTICLE 2
2.01 Events of Default. The terms "Default" and "Event of Default" as used
herein shall have the following meanings:
"Default" shall mean any event which, with the giving of
notice or the lapse of time, or both, would become an Event of
Default.
"Event of Default" shall mean (a) any default in the payment
of the obligations of Grantor hereunder or under any of the
other Loan Documents (as defined in the Credit Agreement) when
the same shall become due and payable which is not cured
within any grace or notice and cure period provided in the
Credit Agreement or such other Loan Documents(for purposes of
this definition, the grace period for a monetary default where
no other period is specified is five (5) days), if any,
subject to any limitations in the Credit Agreement on the
right of Grantor to receive notices of default or (b) any
default in the performance of any other obligations of Grantor
hereunder which is not cured within any cure period provided
in the Credit Agreement (it being acknowledged by Grantor that
no such cure period is provided with respect to a failure to
maintain insurance as required in Section 1.04, any default
under Section 1.09, any default under Section 1.15, or any
default excluded from any provision for cure of defaults
contained in the Credit Agreement, the Security Documents (as
defined in the Credit Agreement) or any other agreement
evidencing or securing the Secured Obligations), or (c) any
representation or warranty of Grantor hereunder proving to be
false or incorrect in any material respect upon the date when
made or deemed to have been repeated, or (d) any default in
the performance of the obligations of Grantor or any other
Person under any of the Security Documents beyond the
expiration of any applicable notice and cure period, (e) the
occurrence of any "Event of Default" under the Credit
Agreement, or (f) except as may be permitted or required
hereby, in the Credit Agreement or in any of the other
Security Documents, any amendment to or termination of a
financing statement naming Grantor as debtor and Grantee as
secured party, or any correction statement with respect
thereto, is filed in any jurisdiction by, or caused by, or at
the instance of Grantor or by, or caused by, or at the
instance of any principal, member, general partner or officer
of Grantor (collectively, "Grantor Party") without the prior
written consent of Grantee; or (g) except as may be permitted
or required hereby, in the Credit Agreement or in any of the
other Security Documents, any amendment to or termination of a
financing statement naming Grantor as debtor and Grantee as
secured party, or any correction statement with respect
thereto, is filed in any jurisdiction by any party other than
an Grantor Party or Grantee or Grantee's counsel without the
prior written consent of Grantee and Grantor fails to use its
best efforts to cause the effect of such filing to be
completely nullified to the reasonable satisfaction of Grantee
within ten (10) days after notice to Grantor thereof."
2.02 Acceleration of Maturity. If an Event of Default shall have occurred and be
continuing, then the entire Secured Obligations secured hereby shall, at the
option of Grantee and as permitted by the terms of the Credit Agreement,
immediately become due and payable without notice or demand, time being of the
essence of this Security Deed.
2.03 Right to Enter and Take Possession.
----------------------------------
(a) If an Event of Default shall have occurred and be continuing, Grantor upon
demand of Grantee, shall forthwith surrender to Grantee the actual possession of
the Property and if, and to the extent, permitted by law, Grantee itself, or by
such officers or agents as it may appoint, may enter and take possession of all
the Property without the appointment of a receiver, or an application therefor,
and may exclude Grantor and its agents and employees wholly therefrom, and may
have joint access with Grantor to the books, papers and accounts of Grantor.
(b) If Grantor shall for any reason fail to surrender or deliver the Property or
any part thereof after such demand by Grantee, Grantee may obtain a judgment or
decree conferring upon Grantee the right to immediate possession or requiring
Grantor to deliver immediate possession of the Property to Grantee. Grantor will
pay to Grantee, upon demand, all expenses of obtaining such judgment or decree,
including reasonable compensation to Grantee, its attorneys and agents; and all
such expenses and compensation shall, until paid, be secured by the lien of this
Security Deed.
(c) Upon every such entering upon or taking of possession, Grantee may hold,
store, use, operate, manage and control the Property and conduct the business
thereof, and, from time to time (i) make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterments and improvements thereto
and thereon and purchase or otherwise acquire additional fixtures, personalty
and other property; (ii) insure or keep the Property insured; (iii) manage and
operate the Property and exercise all the rights and powers of Grantor to the
same extent as Grantor could in its own name or otherwise with respect to the
same; and (iv) enter into any and all agreements with respect to the exercise by
others of any of the powers herein granted Grantee, all as Grantee from time to
time may determine to be in its best interest. Grantee may collect and receive
all the rents, issues, profits and revenues from the Property, including those
past due as well as those accruing thereafter, and, after deducting (1) all
expenses of taking, holding, managing and operating the Property (including
compensation for the services of all persons employed for such purposes); (2)
the cost of all such maintenance, repairs, renewals, replacements, additions,
betterments, improvements, purchases and acquisitions; (3) the cost of such
insurance; (4) such taxes, assessments and other similar charges as Grantee may
at its option pay; (5) other proper charges upon the Property or any part
thereof; and (6) the reasonable compensation, expenses and disbursements of the
attorneys and agents of Grantee, Grantee shall apply the remainder of the monies
and proceeds so received by Grantee, in accordance with Section 12.4 of the
Credit Agreement. Grantee shall have no obligation to discharge any duties of a
landlord to any tenant or to incur any liability as a result of any exercise by
Grantee of any rights under this Security Deed or otherwise. Grantee shall not
be liable for any failure to collect rents, issues, profits and revenues from
the Property, nor shall Grantee be liable to account for any such rents, issues,
profits or revenues unless actually received by Grantee.
(d) Whenever all that is due upon the Secured Obligations and under any of the
terms, covenants, conditions and agreements of this Security Deed, shall have
been paid and all Events of Default made good, Grantee shall surrender
possession of the Property to Grantor, its successors or assigns. The same right
of taking possession, however, shall exist if any subsequent Event of Default
shall occur and be continuing.
2.04 Performance by Grantee. If Grantor shall Default in the payment,
performance or observance of any term, covenant or condition of this Security
Deed, Grantee may, so long as such Default continues, at its option, pay,
perform or observe the same, and all payments made or reasonable costs or
expenses incurred by Grantee in connection therewith, shall be secured hereby
and shall be, upon demand, immediately repaid by Grantor to Grantee with
interest thereon at the default rate of interest set forth in Section 4.9 of the
Credit Agreement (the "Default Rate"). Grantee shall be the sole judge of the
necessity for any such actions and of the reasonable amounts to be paid. Grantee
is hereby empowered to enter and to authorize others to enter upon the Land or
any part thereof for the purpose of performing or observing any such defaulted
term, covenant or condition without thereby becoming liable to Grantor or any
person in possession holding under Grantor.
2.05 Receiver. If an Event of Default shall have occurred and be continuing,
Grantee, upon application to a court of competent jurisdiction, shall be
entitled as a matter of strict right without notice and without regard to the
occupancy or value of any security for the Secured Obligations secured hereby or
the solvency of any party bound for its payment, to the appointment of a
receiver to take possession of and to operate the Property and to collect and
apply the rents, issues, profits and revenues thereof. The receiver shall have
all of the rights and powers permitted under the laws of the State of Georgia.
Grantor will pay to Grantee upon demand all reasonable expenses, including
receiver's fees, attorney's fees, costs and agent's compensation, incurred
pursuant to the provisions of this Paragraph 2.05; and all such expenses shall
be secured by this Security Deed.
2.06 Enforcement; Power of Sale.
(a) If an Event of Default shall have occurred and be continuing, Grantee, at
its option, may sell the Property or any part of the Property at public sale or
sales at the usual place for conducting sales in the county in which the Land or
any part of the Land is situated, to the highest bidder for cash, in order to
pay the Secured Obligations secured hereby and accrued interest thereon and
insurance premiums, liens, assessments, taxes and charges, including utility
charges, if any, with accrued interest thereon, and all expenses of the sale and
of all proceedings in connection therewith, including actual attorney's fees, if
incurred, after advertising the time, place and terms of sale once a week for
four (4) weeks immediately preceding such sale (but without regard to the number
of days) in a newspaper in which Sheriff's sales are advertised in said county.
At any such public sale, Grantee may execute and deliver to the purchaser a
conveyance of the Property or any part of the Property in fee simple, with full
warranties of title and to this end, Grantor hereby constitutes and appoints
Grantee the agent and attorney-in-fact of Grantor to make such sale and
conveyance, and thereby to divest Grantor of all right, title or equity that
Grantor may have in and to the Property and to vest the same in the purchaser or
purchasers at such sale or sales, and all the acts and doings of said agent and
attorney-in-fact are hereby ratified and confirmed and any recitals in said
conveyance or conveyances as to facts essential to a valid sale shall be binding
upon Grantor. The aforesaid power of sale and agency hereby granted are coupled
with an interest and are irrevocable by death or otherwise, are granted as
cumulative of the other remedies provided hereby or by law for collection of the
Secured Obligations secured hereby and shall not be exhausted by one exercise
thereof but may be exercised until full payment of all Secured Obligations
secured hereby.
(b) If an Event of Default shall have occurred and be continuing, Grantee may,
in addition to and not in abrogation of the rights covered under subparagraph
(a) of this Paragraph 2.06, either with or without entry or taking possession as
herein provided or otherwise, proceed by a suit or suits in law or in equity or
by any other appropriate proceeding or remedy (i) to enforce payment of the
Secured Obligations or the performance of any term, covenant, condition or
agreement of this Security Deed or any other right, and (ii) to pursue any other
remedy available to it, all as Grantee shall determine most effectual for such
purposes.
(c) Cancellation and Surrender. Should the Indebtedness secured by this Security
Deed be paid according to the tenor and effect thereof when the same shall
become due and payable, and should Grantor perform all obligations in a timely
manner, then this Security Deed shall be cancelled and surrendered.
2.07 Purchase by Grantee. Upon any foreclosure sale, Grantee, on behalf of the
Lenders, may bid for and purchase the Property and shall be entitled to apply
all or any part of the Secured Obligations secured hereby as a credit to the
purchase price.
2.08 Application of Proceeds of Sale. The proceeds received by Grantee as a
result of a foreclosure sale of the Property or the exercise of any other rights
or remedies hereunder, shall be applied in the manner provided for in Section
12.4 of the Credit Agreement.
2.09 Grantor as Tenant Holding Over. In the event of any such foreclosure sale
by Grantee, Grantor shall be deemed a tenant holding over and shall forthwith
deliver possession to the purchaser or purchasers at such sale or be summarily
dispossessed according to provisions of law applicable to tenants holding over.
2.10 Waiver of Appraisement, Valuation, Stay and Extension Laws. Grantor agrees
to the full extent permitted by law, that in case of a Default or Event of
Default on the part of Grantor hereunder, neither Grantor nor anyone claiming
through or under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension, homestead or exemption laws now or
hereafter in force, in order to prevent or hinder the enforcement or foreclosure
of this Security Deed, or the absolute sale of the Property, or the final and
absolute putting into possession thereof, immediately after such sale, of the
purchasers thereat, and Grantor, for itself and all who may at any time claim
through or under it, hereby waives to the full extent that it may lawfully so
do, the benefit of all such laws, and any and all right to have the assets
comprised in the security intended to be created hereby marshaled upon any
foreclosure of the lien hereof.
2.11 Waiver of Homestead. Grantor hereby waives and renounces all homestead and
exemption rights provided for by the Constitution and the laws of the United
States and of any state, in and to the Property as against the collection of the
Secured Obligations, or any part hereof.
2.12 Leases. Grantee, at its option, is authorized to foreclose this Security
Deed subject to the rights of any tenants of the Property, and the failure to
make any such tenants parties to any such foreclosure proceedings and to
foreclose their rights will not be, nor be asserted to be by Grantor, a defense
to any proceedings instituted by Grantee to collect the sums secured hereby.
2.13 Discontinuance of Proceedings and Restoration of the Parties. In case
Grantee shall have proceeded to enforce any right, power or remedy under this
Security Deed by foreclosure, entry or otherwise, and such proceedings shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to Grantee, then and in every such case Grantor and Grantee
shall be restored to their former positions and rights hereunder, and all
rights, powers and remedies of Grantee shall continue as if no such proceeding
had been taken.
2.14 Remedies Cumulative. No right, power or remedy conferred upon or reserved
to Grantee by this Security Deed is intended to be exclusive of any other right,
power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given hereunder or now or hereafter existing at law or in equity or by
statute.
2.15 Waiver.
(a) No delay or omission of Grantee or of any Lender to exercise any right,
power or remedy accruing upon any Default shall exhaust or impair any such
right, power or remedy or shall be construed to be a waiver of any such Default,
or acquiescence therein; and every right, power and remedy given by this
Security Deed to Grantee may be exercised from time to time and as often as may
be deemed expedient by Grantee. No consent or waiver, expressed or implied, by
Grantee to or of any breach or Default by Grantor in the performance of the
obligations thereof hereunder shall be deemed or construed to be a consent or
waiver to or of any other breach or Default in the performance of the same or
any other obligations of Grantor hereunder. Failure on the part of Lenders to
complain of any act or failure to act or to declare an Event of Default,
irrespective of how long such failure continues, shall not constitute a waiver
by any Lender of its rights hereunder or impair any rights, powers or remedies
consequent on any breach or Default by Grantor.
(b) If Lenders or Grantee on behalf of the Lenders, (i) grant forbearance or an
extension of time for the payment of any sums secured hereby; (ii) take other or
additional security for the payment of any sums secured hereby; (iii) waive or
do not exercise any right granted herein or in the Note, the Credit Agreement or
any other Loan Documents (as defined in the Credit Agreement); (iv) release any
part of the Property from the lien of this Security Deed or otherwise changes
any of the terms, covenants, conditions or agreements of the Note or this
Security Deed; (v) consent to the filing of any map, plat or replat affecting
the Property; (vi) consent to the granting of any easement or other right
affecting the Property; or (vii) make or consent to any agreement subordinating
the lien hereof, any such act or omission shall not release, discharge, modify,
change or affect the original liability under the Note, the Credit Agreement,
this Security Deed or any other obligation of Grantor or any subsequent
purchaser of the Property or any part thereof, or any maker, co-signer,
endorser, surety or guarantor; nor shall any such act or omission preclude
Grantee from exercising any right, power or privilege herein granted or intended
to be granted in the event of any Default then made or of any subsequent
Default; nor, except as otherwise expressly provided in an instrument or
instruments executed by Grantee, shall the lien of this Security Deed be altered
thereby. In the event of the sale or transfer by operation of law or otherwise
of all or any part of the Property, Grantee, without notice, is hereby
authorized and empowered to deal with any such vendee or transferee with
reference to the Property or the Secured Obligations secured hereby, or with
reference to any of the terms, covenants, conditions or agreements hereof, as
fully and to the same extent as it might deal with the original parties hereto
and without in any way releasing or discharging any liabilities, obligations or
undertakings.
2.16 Suits to Protect the Property. Grantee shall have power (a) to institute
and maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Property by any acts which may be unlawful or in violation of
this Security Deed, (b) to preserve or protect its interest in the Property and
in the rents, issues, profits and revenues arising therefrom, and (c) to
restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
would materially impair the security hereunder or be prejudicial to the interest
of Lenders.
2.17 Grantee May File Proofs of Claim. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Grantor, its creditors or its property, Grantee, to
the extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have the claims of
Grantee allowed in such proceedings for the entire amount due and payable by
Grantor under this Security Deed at the date of the institution of such
proceedings and for any additional amount which may become due and payable by
Grantor hereunder after such date.
2.18 WAIVER OF GRANTOR'S RIGHTS. BY EXECUTION OF THIS SECURITY DEED AND BY
INITIALING THIS PARAGRAPH 2.18, GRANTOR EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT OF
AGENT AND/OR LENDERS TO ACCELERATE THE SECURED OBLIGATIONS AND THE POWER OF
ATTORNEY GIVEN HEREIN TO AGENT TO SELL THE PROPERTY BY NONJUDICIAL FORECLOSURE
UPON DEFAULT BY GRANTOR WITHOUT ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE
OTHER THAN SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER
THE PROVISIONS OF THIS SECURITY DEED; (B) WAIVES ANY AND ALL RIGHTS WHICH
GRANTOR MAY HAVE UNDER THE CONSTITUTION OF THE UNITED STATES (INCLUDING, WITHOUT
LIMITATION, THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS PROVISIONS
OF THE CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER
APPLICABLE LAW, TO NOTICE AND TO JUDICIAL HEARING PRIOR TO THE EXERCISE BY AGENT
OF ANY RIGHT OR REMEDY HEREIN PROVIDED TO AGENT, EXCEPT SUCH NOTICE (IF ANY) AS
IS SPECIFICALLY REQUIRED TO BE PROVIDED IN THIS SECURITY DEED; (C) ACKNOWLEDGES
THAT GRANTOR HAS READ THIS SECURITY DEED AND ANY AND ALL QUESTIONS REGARDING THE
LEGAL EFFECT OF THIS SECURITY DEED AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY
TO GRANTOR AND GRANTOR HAS CONSULTED WITH COUNSEL OF GRANTOR'S CHOICE PRIOR TO
EXECUTING THIS SECURITY DEED; AND (D) ACKNOWLEDGES THAT ALL WAIVERS OF THE
AFORESAID RIGHTS OF GRANTOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND
WILLINGLY BY GRANTOR AS PART OF A BARGAINED FOR LOAN TRANSACTION.
INITIALED BY GRANTOR:
-----------
2.19 Indemnification; Subrogation; Waiver of Offset.
(a) Grantor shall indemnify, defend and hold Grantee and the Lenders harmless
for, from and against any and all liability, Secured Obligations, losses,
damages, penalties, claims, actions, suits, costs and expenses (including
Grantee's reasonable attorneys' fees, together with reasonable appellate counsel
fees, if any) of whatever kind or nature which may be asserted against, imposed
on or incurred by Grantee and the Lenders in connection with the Secured
Obligations, this Security Deed, the Property, or any part thereof, or the
exercise by Grantee of any rights or remedies granted to it under this Security
Deed; provided, however, that nothing herein shall be construed to obligate
Grantor to indemnify, defend and hold harmless Grantee and the Lenders for, from
and against any and all liabilities, Secured Obligations, losses, damages,
penalties, claims, actions, suits, costs and expenses asserted against, imposed
on or incurred by Grantee or a Lender by reason of Grantee's or such Lender's
willful misconduct or gross negligence.
(b) If Grantee or a Lender is made a party defendant to any litigation or any
claim is threatened or brought against Grantee or a Lender concerning the
Secured Obligations, this Security Deed, the Property, or any part thereof, or
any interest therein, or the construction, maintenance, operation or occupancy
or use thereof, then Grantor shall indemnify, defend and hold Grantee and the
Lenders harmless for, from and against all liability by reason of said
litigation or claims, including reasonable attorneys' fees (together with
reasonable appellate counsel fees, if any) and expenses incurred by Grantee and
the Lenders in any such litigation or claim, whether or not any such litigation
or claim is prosecuted to judgment; provided, however, that nothing in this
Section 2.20(b) shall be construed to obligate Grantor to indemnify, defend and
hold harmless Grantee or a Lender for, from and against any and all liabilities
or claims imposed on or incurred by Grantee or a Lender by reason of Grantee's
or such Lender's willful misconduct or gross negligence. If Grantee commences an
action against Grantor to enforce any of the terms hereof or to prosecute any
breach by Grantor of any of the terms hereof or to recover any sum secured
hereby, Grantor shall pay to Grantee its reasonable attorneys' fees (together
with reasonable appellate counsel, fees, if any) and expenses. The right to such
attorneys' fees (together with reasonable appellate counsel fees, if any) and
expenses shall be deemed to have accrued on the commencement of such action, and
shall be enforceable whether or not such action is prosecuted to judgment. If
Grantor breaches any term of this Security Deed, Grantee may engage the services
of an attorney or attorneys to protect its rights hereunder, and in the event of
such engagement following any breach by Grantor, Grantor shall pay Grantee
reasonable attorneys' fees (together with reasonable appellate counsel fees, if
any) and expenses incurred by Grantee, whether or not an action is actually
commenced against Grantor by reason of such breach. All references to
"attorneys" in this Subsection and elsewhere in this Security Deed shall include
without limitation any attorney or law firm engaged by Grantee and Grantee's
in-house counsel, and all references to "fees and expenses" in this Subsection
and elsewhere in this Security Deed shall include without limitation any
reasonable fees of such attorney or law firm and any allocation charges and
allocation costs of Grantee's in-house counsel.
(c) A waiver of subrogation shall be obtained by Grantor from its insurance
carrier and, consequently, Grantor waives any and all right to claim or recover
against Grantee, its officers, employees, agents and representatives, for loss
of or damage to Grantor, the Property, Grantor's property or the property of
others under Grantor's control from any cause insured against or required to be
insured against by the provisions of this Security Deed.
(d) ALL SUMS PAYABLE BY GRANTOR HEREUNDER SHALL BE PAID WITHOUT NOTICE (EXCEPT
AS MAY OTHERWISE BE PROVIDED HEREIN), DEMAND, COUNTERCLAIM, SETOFF, DEDUCTION OR
DEFENSE AND WITHOUT ABATEMENT, SUSPENSION, DEFERMENT, DIMINUTION OR REDUCTION,
AND THE SECURED OBLIGATIONS AND LIABILITIES OF GRANTOR HEREUNDER SHALL IN NO WAY
BE RELEASED, DISCHARGED OR OTHERWISE AFFECTED BY REASON OF: (I) ANY DAMAGE TO OR
DESTRUCTION OF OR ANY CONDEMNATION OR SIMILAR TAKING OF THE PROPERTY OR ANY PART
THEREOF; (II) ANY RESTRICTION OR PREVENTION OF OR INTERFERENCE WITH ANY USE OF
THE PROPERTY OR ANY PART THEREOF; (III) ANY TITLE DEFECT OR ENCUMBRANCE OR ANY
EVICTION FROM THE LAND OR THE IMPROVEMENTS ON THE LAND OR ANY PART THEREOF BY
TITLE PARAMOUNT OR OTHERWISE; (IV) ANY BANKRUPTCY, INSOLVENCY, REORGANIZATION,
COMPOSITION, ADJUSTMENT, DISSOLUTION, LIQUIDATION, OR OTHER LIKE PROCEEDING
RELATING TO AGENT, OR ANY ACTION TAKEN WITH RESPECT TO THIS SECURITY DEED BY ANY
TRUSTEE OR RECEIVER OF AGENT, OR BY ANY COURT, IN SUCH PROCEEDING; (V) ANY CLAIM
WHICH GRANTOR HAS, OR MIGHT HAVE, AGAINST AGENT; (VI) ANY DEFAULT OR FAILURE ON
THE PART OF AGENT TO PERFORM OR COMPLY WITH ANY OF THE TERMS HEREOF OR OF ANY
OTHER AGREEMENT WITH GRANTOR; OR (VII) ANY OTHER OCCURRENCE WHATSOEVER, WHETHER
SIMILAR OR DISSIMILAR TO THE FOREGOING, WHETHER OR NOT GRANTOR SHALL HAVE NOTICE
OR KNOWLEDGE OF ANY OF THE FOREGOING. GRANTOR WAIVES ALL RIGHTS NOW OR HEREAFTER
CONFERRED BY STATUTE OR OTHERWISE TO ANY ABATEMENT, SUSPENSION, DEFERMENT,
DIMINUTION, OR REDUCTION OF ANY SUM SECURED HEREBY AND PAYABLE BY GRANTOR.
ARTICLE 3
3.01 Successors and Assigns. This Security Deed shall inure to the benefit of
and be binding upon Grantor and Grantee and their respective heirs, executors,
legal representatives, successors and assigns. Whenever a reference is made in
this Security Deed to Grantor or Grantee such reference shall be deemed to
include a reference to the heirs, executors, legal representatives, successors
and assigns of Grantor or Grantee.
3.02 Terminology. All personal pronouns used in this Security Deed whether used
in the masculine, feminine or neuter gender, shall include all other genders;
the singular shall include the plural, and vice versa. Titles and Articles are
for convenience only and neither limit nor amplify the provisions of this
Security Deed itself, and all references herein to Articles, Paragraphs or
subparagraphs thereof, shall refer to the corresponding Articles, Paragraphs or
subparagraphs thereof, of this Security Deed unless specific reference is made
to such Articles, Paragraphs or subparagraphs thereof of another document or
instrument.
3.03 Severability. If any provision of this Security Deed or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Security Deed and the application of such
provisions to other persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
3.04 Applicable Law. This Security Deed will be governed by the substantive laws
of the State of Georgia, without giving effect to its principles of choice of
law or conflicts of law (except with respect to choice of law or conflicts of
law provisions of its Uniform Commercial Code), and the laws of the United
States, unless an agreement which is contained in a Loan Document other than
this Security Deed specifically designates the laws of a different state to
govern all or certain provisions pertaining to the creation or enforcement of
security interests in personal property or particular items or types of personal
property, in which case the laws of such designated state shall govern to the
extent provided. Should any obligation or remedy under this Security Deed be
invalid or unenforceable pursuant to the laws provided herein to govern, the
laws of any other state referred to herein or of another state whose laws can
validate and apply thereto shall govern.
3.05 Notices. Except as otherwise provided herein, any notice or other
communication required hereunder shall be in writing, and shall be deemed to
have been validly served, given or delivered the next succeeding Business Day
(as defined in the Credit Agreement) after timely delivery to the courier, if
sent by overnight courier; at the time delivered by hand, if personally
delivered; or when receipt is acknowledged, if (i) telecopied (followed by
delivery of written copy thereof sent by overnight courier on the same day as
such notice is given), or (ii) sent by registered or certified mail, return
receipt requested, addressed to Grantor or Grantee as follows:
If to Grantor:
Xxxxx Equity, Inc.
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy Number: (000) 000-0000
If to Grantee:
Fleet National Lender, as Grantee
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Structured Real Estate
With a copy to:
Fleet National Lender, as Grantee
Suite 500
115 Perimeter Center Place, N.E.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Director
Telecopy No.: (000) 000-0000
or, to such other address as any party may designate for itself by like notice.
3.06 Conflict with Credit Agreement Provisions. Grantor hereby acknowledges and
agrees that, in the event of any conflict between the terms hereof and the terms
of the Credit Agreement, the terms of the Credit Agreement shall control.
3.07 Assignment. This Security Deed is assignable by Grantee, and any assignment
hereof by Grantee shall operate to vest in the assignee all rights and powers
herein conferred upon and granted to Grantee.
3.08 Time of the Essence. Time is of the essence with respect to each and every
covenant, agreement and obligation of Grantor under this Security Deed, the
Note, the Credit Agreement and any and all other instruments now or hereafter
evidencing, securing or otherwise relating to the Secured Obligations.
3.09 Discontinuance of Proceedings. If Grantee shall have proceeded to invoke
any right, remedy or recourse permitted under the Loan Documents and shall
thereafter elect to discontinue or abandon it for any reason, Grantee shall have
the unqualified right to do so and, in such an event, Grantor and Grantee shall
be restored to their former positions with respect to the Indebtedness, the
Obligations, the Loan Documents, the Property and otherwise, and the rights,
remedies, recourses and powers of Grantee shall continue as if the right, remedy
or recourse had never been invoked, but no such discontinuance or abandonment
shall waive any Event of Default which may then exist or the right of Grantee
thereafter to exercise any right, remedy or recourse under the Loan Documents
for such Event of Default. Grantor hereby expressly waives any and all benefits
Grantor may have under O.C.G.A. ss. 44-14-85 to claim or assert that the
Indebtedness has been reinstated in accordance with its terms following the
withdrawal of any foreclosure proceedings by Grantee, and acknowledges and
agrees that reinstatement shall occur only upon written agreement of Grantee.
3.10 Revolving Credit Language. A part of the indebtedness secured hereby is a
revolving credit loan, the principal of which may be advanced, repaid and
readvanced at any time and from time to time in accordance with the terms of the
Credit Agreement; provided, however, at no time shall the outstanding principal
balance of all advances under the Credit Agreement exceed $125,000,000.
Accordingly, if the outstanding principal balance of the Note is ever reduced to
a zero ($0.00) balance, the lien and security title of this Security Deed shall
not be released or extinguished by operation of law or implied intent of the
parties. This Security Deed and the Credit Agreement shall remain in full force
and effect as to any further advances under the Credit Agreement made after any
such zero balance until the indebtedness secured by this Security Deed is paid
in full and satisfied, all agreements of the Lenders to make further advances
have been terminated and this Security Deed has been cancelled of record.
IN WITNESS WHEREOF, Grantor has executed this Security Deed under seal, as of
the day and year first above written.
Signed, sealed and delivered XXXXX EQUITY, INC., a Florida corporation
by Grantor in the presence of:
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxxxxx X. Xxxxxx
------------------------------ ------------------------------
Unofficial Witness Printed Name: Xxxxxxxxxxx X. Xxxxxx
Printed Title: Senior Vice President
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Notary Public
Commission Expiration Date:
[NOTARIAL SEAL]
EXHIBIT "A"
Description of Land
EXHIBIT "B"
Permitted Encumbrances
Permitted encumbrances are such matters as are shown on Schedule B-1 to the
Title Insurance Policy issued by Lawyers Title Insurance Corporation to the
Grantee in connection with this Security Deed, dated the date of recordation of
this Security Deed issued pursuant to Lawyers Title Insurance Corporation
Commitment No. 2-11976.
C:\TEMP\01 GADeedSD3.DOC
EXHIBIT "C"
Schedule 1
(Description of "Debtor" and "Secured Party")
A. Debtor:
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XXXXX EQUITY, INC., a corporation organized under the laws of the State of
Florida. Debtor has been using or operating under said name and identity or
corporate structure without change since June 21, 1988.
Names and Tradenames used within last five years: None.
Location of all chief executive offices over last five years: (i) 0000
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, and (ii)
000 Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000.
Organizational Number: K27001
Federal Tax Identification Number: 00-0000000
B. Secured Party:
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FLEET NATIONAL BANK, a national banking association, as Grantee.
Schedule 2
(Notice Mailing Addresses of "Debtor" and "Secured Party")
A. The mailing address of Debtor is:
XXXXX EQUITY, INC.
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
B. The mailing address of Secured Party is:
FLEET NATIONAL BANK, as Grantee
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Structured Real Estate
