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THIS INSTRUMENT PREPARED BY, EXHIBIT 10(k)(7)(a)
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, ASSIGNMENT OF
LEASES AND RENTS AND SECURITY AGREEMENT
FROM
XXXXX EQUITY, INC.
TO
XXXXX X. XXXX,
AS TRUSTEE
FOR THE BENEFIT OF
FIRST UNION NATIONAL BANK,
AS AGENT
Dated as of December 30, 1998
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DEED OF TRUST, ASSIGNMENT OF
LEASES AND RENTS, AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, AND
SECURITY AGREEMENT (this "Indenture"), dated as of December 30, 1998, from
XXXXX EQUITY, INC., a Florida corporation ("Trustor"), whose mailing address is
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention:
X.X. Xxxxxx, President,
to
XXXXX X. XXXX, ("Trustee") having an address c/o First Union National Bank, a
national association, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
as trustee for the benefit of FIRST UNION NATIONAL BANK, a national association,
as Agent on behalf of the Lenders (the "Beneficiary") under and as defined in
that certain Second Amended and Restated Revolving Credit Loan Agreement dated
as of even date herewith, as amended from time to time (the "Loan Agreement").
For purposes of notices permitted or required to be given hereunder, the
Beneficiary's mailing address is One First Union Center, 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: First Union Capital Markets
Group.
Capitalized terms not otherwise defined herein are defined in Article I.
WITNESSETH:
TO SECURE (A) the payment, performance and observance of all
obligations of Trustor 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 each of the Lenders, (2) be payable in full not later than
December 30, 2001, 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 than for advances made
pursuant to Article XXVIII, Paragraph 28 hereof, shall in no event exceed
$150,000,000.00 (the "Indebtedness") and (B) the performance of the covenants
and agreements contained herein and in the Loan Agreement.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, in consideration of the
aforesaid Indebtedness and the trust referred to and created below Trustor
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 Trustor's right, title
and interest in the following
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property and rights whether now owned or hereafter acquired by Trustor
(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 Trustor 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 Trustor'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 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 Trustor, to
appear in and defend any action or proceeding brought with respect to Trustor'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;
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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.
Trustor, 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.
"Citizens" shall mean Citizens Bank of Rhode Island, a Rhode Island
financial institution.
"Compass" shall mean Compass Bank, an Alabama banking corporation
"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.
"Event of Default" shall have the meaning assigned to such term in
Article V of this Indenture.
"FUNB" shall mean First Union National Bank, a national association.
"Fixtures" shall have the meaning assigned to such term in clause (iv)
of the Granting Clause of this Indenture.
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"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 Trustor, 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, Assignment of Leases and
Rents and Security Agreement.
"Land" shall mean those certain parcels of real property located in the
County of Bexar, State of Texas, 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.
"Lenders" shall mean FUNB, GFB, AmSouth, Compass, and Citizens, and any
other Lenders under the Credit Agreement from time to time.
"Loan Agreement" shall mean that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of December 30, 1998 between Trustor
and Beneficiary.
"Loan Documents" shall mean collectively the Notes, the Loan Agreement,
this Indenture, and the Security Deeds, the Assignments of Leases, the
Assignments of Contracts, the Indemnification Agreements, as such terms are
defined in the Loan Agreement and any and all other loan documents executed in
connection with the Loan.
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"Notes" shall mean collectively (i) the Substitution Revolving
Promissory Note dated as of even date herewith made by Trustor payable to the
order of FUNB in the original principal amount of $45,000,000, (ii) the
Substitution Revolving Promissory Note dated as of even date herewith made by
Trustor payable to the order of AmSouth in the original principal amount of
$35,000,000, (iii) the Substitution Revolving Promissory Note dated as of even
date herewith made by Trustor payable to the order of GFB in the original
principal amount of $35,000,000, (iv) the Revolving Promissory Note dated as of
even date herewith made by Trustor payable to the order of Citizens in the
original principal amount of $20,000,000, and (v) the Revolving Promissory Note
dated as of even date herewith made by Trustor payable to the order of Compass
in the original principal amount of $15,000,000.
"Other Indenture" shall mean any mortgage, deed to secure debt, or deed
of trust given by Trustor 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 Texas.
"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.
"Trustee" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Trustor" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
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ARTICLE II
2. Representations and Warranties. Trustor 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 indefeasible fee simple title
to the Land and good 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 Trustor's knowledge, no
default exists under the Leases. Trustor, 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 XXI, Trustor 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. Trustor 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.
(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 Trustor in the manner permitted by the Loan
Agreement. Any Impositions which are payable in installments may be paid in
installments provided that the Trustor is otherwise in compliance with the Loan
Agreement. Upon the written request of Beneficiary from time to time, Trustor
will furnish to Beneficiary official receipts or other satisfactory proof
evidencing such payments. In addition, Trustor will pay all utility charges as
required by the Loan Agreement. Trustor
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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 Trustor 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, Trustor
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 Trustor would be entitled thereto under the Loan Agreement, and Trustor
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, Trustor 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 Trustor, 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. Trustor
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
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.
(h) Corporate Existence. Preserve and keep in full force and
effect its corporate existence, rights and franchises and privileges as a
corporation under the laws of the State of Texas and comply with all laws
applicable to it, and do or cause to be done all things
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necessary to preserve and to keep in full force and effect its right to own
property in the State of Texas.
(i) Inspection. Permit the Beneficiary or its authorized
representatives to inspect the Property during usual business hours.
ARTICLE IV
4. Negative Covenants. Without the prior written consent of
Beneficiary, Trustor 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 Trustor; provided,
however, that any such statutory liens will promptly be discharged as and when
such discharge is possible or permissible. Trustor 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 Trustor is obligated
to pay hereunder, under the Notes, 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 Trustor 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
(d) if any of the representations or warranties made by Trustor in
any document, instrument or certificate delivered in connection with the
financing of the Property by Trustor proves to be untrue in any material
respect; or
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(e) if a default shall have occurred under any Other Indenture or
under any other Loan Document and shall be continuing beyond the applicable
grace or cure period provided therein; or
(f) if Trustor 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 Trustor, a receiver or trustee for it or for any of the
Property or approving a petition filed against Trustor 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 Trustor 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;
(i) if Trustor sells, conveys or transfers, voluntarily or
otherwise, its interest in the Property without the prior written consent of
Beneficiary; or
(j) any material provision of the Loan Documents relating to
Trustee's or Beneficiary's ability to realize on the Collateral following an
Event of Default shall for any reason cease to be valid and binding on Trustor,
or Trustor shall so state in writing.
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
6.1. Assignment of Rents. As additional security hereunder, the
Trustor hereby grants, bargains, conveys, assigns, transfers and sets over, and
by these presents does grant, bargain, convey, assign, transfer and set over to
the Beneficiary, as well as the Trustee on behalf of the Beneficiary, all Rents,
if any,; provided, however, that unless and until an Event of Default occurs,
the Trustor will have a license to collect and retain such Rents as and when,
but not before, the same shall become due and payable. Upon an Event of Default,
the Beneficiary shall be immediately entitled to and may collect such Rents. In
addition, upon an Event of Default, the Beneficiary, or the Trustee on the
Beneficiary's behalf, may at any time and without notice, either in person or by
agent or by
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receiver to be appointed by a court, enter and take possession of the Property
or any part thereof, and in its own name, xxx for or otherwise collect such
Rents. The Trustor hereby agrees with the Beneficiary that other parties under
the Leases may, upon notice from the Beneficiary, or the Trustee acting on
behalf of the Beneficiary, on the occurrence of an Event of Default, thereafter
pay directly to the Beneficiary the Rents due and to become due under the Leases
and attorn to all other obligations thereunder, directly to the Beneficiary
without any obligation on their part to determine whether an Event of Default
does, in fact, exist or has, in fact, occurred. All Rents collected by the
Trustee or the Beneficiary shall be applied as provided in Article XII hereof;
provided, however, that if the costs and expenses and attorney's fees shall
exceed the amount of the Rents collected, the excess shall be added to the
Indebtedness, shall bear interest at the maximum rate allowable by law as
provided herein, and shall be immediately due and payable. The entering upon and
taking possession of the Property, the collection of Rents, if any, and the
application thereof as aforesaid, shall not cure or waive any Event of Default
or notice of default, if any, hereunder, nor invalidate any act done pursuant to
such notice except to the extent that such default is fully cured. Failure or
discontinuance of the Trustee or the Beneficiary at any time or from time to
time, to collect said Rents, shall not in any manner impair the subsequent
enforcement by the Beneficiary, or the Trustee on the Beneficiary's behalf, of
the right, power and authority herein conferred upon it. Nothing contained
herein, nor the exercise of any right, power or authority herein granted to the
Beneficiary, or the Trustee on the Beneficiary's behalf, shall be construed to
be an affirmation by it of any tenancy, lease or option, nor an assumption of
liability under, nor the subordination of the lien or charge of this Indenture,
to any such tenancy, lease or option.
6.2. Use of Furniture and Equipment. The Trustor agrees that, in
the event the Beneficiary, or the Trustee on behalf of the Beneficiary,
exercises its rights under Section 6.1, above, and takes possession of the
Property through the assignment of Rents, or through a court-appointed receiver,
the Trustor hereby waives any right to compensation for the use of the Trustor's
furniture, fixtures and equipment, together with all accessories, replacements
and substitutions therefor, in or about the Property for the use for the period
such assignment of Rents or receivership is in effect.
ARTICLE VII
7. Remedies in Case of Event of Default.
7.1. Legal Proceedings and Foreclosure. If an Event of Default
shall have occurred and be continuing, the Trustee or the 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
Indebtedness under the Loan Agreement, or to foreclose the lien and security
interest of
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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 remedies available to it. If the Beneficiary proceeds to
foreclose the lien of this Indenture, the Beneficiary shall have the statutory
power of sale if permitted by applicable law. All rights of action under this
Indenture may, if permitted by applicable law, be enforced by the Trustee or the
Beneficiary without the possession of the Notes and without the production of
the Notes, the Loan Agreement or this Indenture at any trial or other proceeding
relative thereto. In the event of any such suit or proceeding, the Beneficiary
and/or the Trustee shall comply with any local laws applicable to any such suits
or proceedings. Any such suit or proceeding instituted by the Trustee shall be
brought in its name as Trustee and any recovery or judgment shall be for the
benefit of the Beneficiary. All costs and expenses (including, without
limitation, reasonable attorney's fees and expenses) incurred by the Trustee or
the 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 the Trustor to the Trustee or the Beneficiary, as
the case may be, on demand.
7.2. Power of Sale and Procedure. If an Event of Default shall have
occurred and be continuing and after the Trustee or the Beneficiary shall have
accelerated the Indebtedness as provided herein, the Trustee at the
Beneficiary's election may sell or offer for sale the Property in such portions,
order and parcels as the Beneficiary may determine, with or without having first
taken possession of same, to the highest bidder for cash at public auction. Such
sale shall be made in conformance with the laws of the State of Texas at the
courthouse door of the county wherein the Property is situated on the first
Tuesday of any month between the hours of 10:00 A.M. and 4:00 P.M. after giving
adequate legal notice of the time, place and terms of sale and that portion of
the Property to be sold, by (i) posting or causing to be posted written or
printed notices thereof for at least twenty-one (21) consecutive days prior to
the date of said sale at the respective county courthouse door, and at least
twenty-one (21) days preceding the date of said sale: (x) filing a copy of such
notice with the Clerk of the County in which the Property is located, and (y)
serving written notice (by the Beneficiary or any person chosen by it) of such
proposed sale by certified mail on each debtor obligated to pay the Indebtedness
under the Loan Agreement, service of such notice to any debtor to be completed
upon deposit of the notice, enclosed in a post-paid wrapper appropriately
addressed to each debtor at the most recent address as shown by the records of
the Beneficiary, in a post office or official depository under the care and
custody of the United States Postal Service (it being expressly understood that
the affidavit of any person having knowledge of the facts to the effect that
such service was completed shall be prima facie evidence of the fact of such
service), or (ii) by accomplishing all or any of the aforesaid in such manner as
permitted or required by Texas law in existence on the date hereof relating to
the sale of real estate under a power of sale and/or relating to the sale of
collateral under a power of sale after
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default by a debtor, or by any subsequent laws relating to same. At any such
sale (i) whether made under the power herein contained, Texas 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 the Trustee to have
physically present, or to have constructive possession of, the Property (the
Trustor hereby covenanting and agreeing to deliver to the Trustee any portion of
the Property not actually or constructively possessed by the Trustee immediately
upon demand by the 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, (ii) each
instrument of conveyance executed by the Trustee shall contain a special
warranty of title, binding upon the Trustor, (iii) each and every recital
contained in any instrument of conveyance made by the Trustee shall conclusively
establish the truth and accuracy of the matters recited therein, including,
without limitation, nonpayment of the indebtedness, advertisement and conduct of
such sale in the manner provided herein and otherwise by law and appointment of
any successor Trustee hereunder, (iv) any and all prerequisites to the validity
thereof shall be conclusively presumed to have been performed, and (v) the
receipt of the 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.
7.3. Acceleration of Maturity. If an Event of Default shall have
occurred, the 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.
7.4. Leases. The failure to make any tenants of the Property
parties defendant to any such foreclosure proceedings and to foreclose their
rights will not be, nor be asserted by the Trustor to be, a defense to any
proceedings instituted by the Trustee and/or the Beneficiary to collect the sums
secured hereby or to collect any deficiency remaining unpaid after the
foreclosure sale of the Property.
7.5. Suits to Protect the Property. The Beneficiary, or the Trustee
at the Beneficiary's election, shall have the power and authority to institute
and maintain any suits and proceedings as the 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 the Beneficiary's interest.
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7.6. Discontinuance of Proceedings; Position of Parties Restored.
If the Beneficiary, or the Trustee at the 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 the
Beneficiary, then and in every such case, to the extent permitted by and
consistent with applicable law, the Trustor and the Beneficiary shall be
restored to their former positions and rights hereunder, and all rights, powers
and remedies of the Beneficiary shall continue as if no such proceeding had
occurred or had been taken.
7.7. The Trustor to Pay the Indebtedness on Any Default in Payment;
Application of Monies by the Beneficiary.
(a) If an Event of Default shall occur as a result of Trustor's
failure to pay any amount due under the Loan Agreement or this Indenture, or any
other instrument securing the Notes, then, upon the Beneficiary's demand, the
Trustor will pay to the Beneficiary the whole amount due and payable under the
Loan Agreement and all other sums secured hereby; and if the Trustor shall fail
to pay the same forthwith upon such demand, the Beneficiary, or the Trustee at
the 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 the
Beneficiary's agents, attorneys and other representatives. The 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 the Beneficiary to recover such judgment shall not be affected
by any taking, 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, the 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) The Trustor hereby agrees, to the extent permitted by law,
that no recovery of any such judgment by the 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 the Beneficiary hereunder, but such
lien, rights, powers and remedies of the Beneficiary hereunder shall continue
unimpaired as before.
7.8. Remedies Cumulative. No remedy herein shall be exclusive of
any other remedy or remedies, and each such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity; and every
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power and remedy of the Trustee or the Beneficiary hereunder may be exercised
from time to time and as often as may be deemed expedient by the Trustee or the
Beneficiary. No delay or omission of the Trustee or the Beneficiary to exercise
any right or power accruing upon an Event of Default shall impair any such right
or power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein.
ARTICLE VIII
8.1. 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.
8.2. 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 Trustor to
the extent permitted by applicable law. The receipt of the officer making the
sale under judicial proceedings or of Trustee or 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.
8.3. 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 IX
9. Waiver of Appraisement, Valuation, Etc. Trustor 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.
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ARTICLE X
10. 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 Trustor 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 XI
11. 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 by law, by reasonable force, summary
proceedings, ejectment or otherwise and may remove Trustor 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 XII 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 XII of this Indenture.
ARTICLE XII
12. Application of Proceeds. The proceeds of (a) the operation and
management of the Property pursuant to Article XI 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:
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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 Trustor.
ARTICLE XIII
13. 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 XIV
14. 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
15. 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
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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
Trustor herein, and in the absence of written notice from Trustor 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 Trustor) 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.
(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.
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ARTICLE XVI
16. Right of Trustee or Beneficiary to Perform Covenants, Etc. If
Trustor 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
Trustor 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 Trustor 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 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 Trustor to Trustee or Beneficiary on demand.
ARTICLE XVII
17. Sale a Bar Against the Trustor. The sale of the Property or
any part thereof or any interest therein, whether pursuant to foreclosure, power
of sale or otherwise under this Indenture, shall forever bar any claim with
respect thereto by the Trustor to the extent permitted by applicable law.
ARTICLE XVIII
18. Authorization to Execute Instruments, Etc. The Trustor
irrevocably appoints the Beneficiary as its true and lawful attorney, which
appointment is coupled with an interest and is irrevocable, in the Trustor's
name and stead and on its behalf, for the purpose of (a) executing on behalf of
the Trustor and filing continuation statements and any necessary amendments to
all financing statements naming the Trustee and/or the Beneficiary as the
secured parties filed under any applicable Uniform Commercial Code, and (b)
effectuating any sale, assignment, transfer or delivery of the Property or any
part thereof or any interest therein for the enforcement of this Indenture
whether pursuant to foreclosure, power of sale or otherwise, or in the event of
any purchase of the Property by the Lessee pursuant to the Lease, to execute and
deliver all such deeds, bills of sale, assignments, releases and other
instruments as the Trustee or the Beneficiary may consider necessary or
appropriate, with full power of substitution, the Trustor hereby ratifying and
confirming all that such attorney or any substitute shall lawfully do by virtue
hereof. If so requested by the Trustee or the Beneficiary, the Trustor shall
ratify and confirm any such sale, assignment, transfer or delivery by executing
and delivering to the Trustee or the Beneficiary all proper deeds, bills of
sale, assignments, releases and other instruments as may be designated in any
such request.
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ARTICLE XIX
19. Certificate as to No Default, Etc.; Information. At any time
and from time to time, Trustor will deliver to Beneficiary, promptly upon
request, a certificate signed by a duly authorized officer of Trustor 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 Trustor is taking or
proposes to take with respect thereto. Trustor 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 XX
20. Additional Instruments. Trustor, 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 XXI
21. 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 release 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 Trustor'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.
ARTICLE XXII
22. 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,
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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 XXIII
23. Notices. All notices, demands, requests for consents, consents
and other communications required or permitted hereunder shall be in writing
(including facsimile transmission) and shall be given to such party, addressed
to it, at its address or telephone number set forth in the preamble, or at such
other address or telephone number as such party may hereafter specify for the
purpose of notice to the other party. Each such notice, request or communication
shall be effective when delivery is received at the address specified in the
preamble.
ARTICLE XXIV
24. 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 Trustor, its successors and assigns, and
all Persons claiming under or through Trustor 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 Trustor 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 Trustor. 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 Trustor 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 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 Trustor expressly covenants
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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 XXV
25. 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,
Trustor 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 XXVI
26. 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
Texas.
ARTICLE XXVII
27. No Petition. Trustee and Beneficiary hereby covenant and agree
that they will not institute against, or join any Person in instituting against
Trustor, 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 Trustor pursuant to the
Loan Agreement.
ARTICLE XXVIII
28. 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 twenty (20)
years from the date hereof, to the same extent as if such future advances were
made on the date of the execution of this Indenture. The total amount of
Indebtedness presently secured hereby is One Hundred Fifty Million Dollars
($150,000,000.00) 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
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balance so secured at one time shall not exceed four times the face amount of
the amount initially secured by this Indenture plus interest thereon. 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 XXIX
29. Approval of Legal Description. Trustor 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 XXX
30. 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 Trustor to obtain releases of portions
of the Property from this Indenture from time to time.
ARTICLE XXXI
31. WAIVER OF JURY TRIAL. TRUSTOR, TRUSTEE AND BENEFICIARY, BY ITS
ACCEPTANCE HEREOF, EACH ACKNOWLEDGE AND AGREE THAT NEITHER TRUSTOR, TRUSTEE NOR
BENEFICIARY, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF ANY OF
THE SAME, WILL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR
ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS DEED OF TRUST,
THE LOAN AGREEMENT OR THE LOAN DOCUMENTS, ANY COLLATERAL, OR THE DEALINGS OR THE
RELATIONSHIP BETWEEN OR AMONG TRUSTOR, TRUSTEE OR BENEFICIARY, RELATED THERETO.
NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER
ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY AND AMONG TRUSTOR, TRUSTEE AND
BENEFICIARY, ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A
MATERIAL INDUCEMENT FOR TRUSTEE AND THE LENDERS TO MAKE THE LOAN TO TRUSTOR, AND
WILL BE SUBJECT TO NO EXCEPTIONS.
IN WITNESS WHEREOF, Trustor 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.,
a Florida corporation
By: /s/ G. Xxxxx Xxxxxxx
-------------------------------
Name: G. Xxxxx Xxxxxxx
-------------------------------
Title: Treasurer
-----------------------------
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STATE OF Georgia ss.
ss.
COUNTY OF Camden ss.
This instrument was acknowledged before me on the 30th day of December,
1998, by G. Xxxxx Xxxxxxx the Treasurer of XXXXX EQUITY, INC., a Florida
corporation, on behalf of said corporation.
/s/ Xxx Xxxxx
-------------------------------
Notary Public
My commission expires:Feb. 1, 0000
Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx
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EXHIBIT A
The Land
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EXHIBIT B
Permitted Encumbrances
