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Exhibit 10(k)(3)
THIS INSTRUMENT PREPARED BY,
AND FOLLOWING RECORDING RETURN TO:
Xxxxxxx X. Xxxxxxxx, Esq.
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND RENTS, AND
SECURITY AGREEMENT
FROM
XXXXX EQUITY, INC.
TO
FIRST UNION NATIONAL BANK OF FLORIDA
AND
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
Dated as of April 7, 1997
State: Georgia
Section:
Township:
Range:
County: DeKalb
Tax I.D.:
NOTE TO TAX COMMISSIONER: THIS INSTRUMENT SECURES A NOTE CONTAINING A MATURITY
DATE OF LESS THAN THREE (3) YEARS FROM THE DATE THEREOF AND, THEREFORE, SUCH
NOTE IS A "SHORT-TERM NOTE SECURED BY REAL ESTATE" AS SUCH TERM IS DEFINED IN
OFFICIAL CODE OF GEORGIA ANNOTATED SECTION 48-6-60. CONSEQUENTLY, NO
INTANGIBLES TAX IS DUE UPON THE RECORDATION OF THIS INSTRUMENT. SEE OFFICIAL
CODE OF GEORGIA ANNOTATED SECTION 48-6-61.
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DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND RENTS, AND
SECURITY AGREEMENT
THIS DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY
AGREEMENT (this "Indenture"), dated as of April 7 , 1997, from
XXXXX EQUITY, INC., a Florida corporation ("Grantor"), whose mailing address is
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention:
X.X. Xxxxxx, Executive Vice President,
to
FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association ("FUNB"),
and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation
("MGT") (FUNB and MGT together being referred to as "Grantee"). For purposes of
notices permitted or required to be given hereunder, FUNB's mailing address is
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention: Real Estate
Portfolio Management, and MGT's mailing address is 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 Attention: Xxxxxxx X'Xxxxxxx .
Capitalized terms not otherwise defined herein are defined in Article I.
W I T N E S S E T H :
THIS INDENTURE WITNESSETH, that to secure (A) the payment, performance
and observance of all obligations of Grantor 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 Grantee, (2) be payable in full not later
than April 6 , 1999, or such later date as may be established by an extension
of the Maturity Date (as defined in the Loan Agreement) pursuant to Section 2.3
of the Loan Agreement, and (3) bear interest at a floating rate as set forth in
Section 2.6 of the Loan Agreement; provided, that the maximum aggregate
principal amount of indebtedness secured hereby, other than for advances made
pursuant to Article XXII, Paragraph 22 hereof, shall in no event exceed
$50,000,000.00 (the "Indebtedness") and (B) the performance of the covenants
and agreements contained herein and in the Loan Agreement, and in consideration
of the aforesaid Indebtedness, Grantor hereby irrevocably grants, bargains and
sells, conveys, transfers, assigns, sets over, alienates, hypothecates and
pledges to Grantee and its successors and assigns in and to all of Grantor's
right, title and interest in the following property and rights whether now
owned or hereafter acquired by Grantor (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;
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(iv) all fixtures, machinery, equipment and other personal property
of all types owned by Grantor 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 Grantor'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 Grantor, to appear in
and defend any action or proceeding brought with respect to Grantor'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 Grantee in the
Land, the Improvements or the Fixtures;
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, for the use, benefit and behoof of Grantee, IN FEE
SIMPLE forever.
PROVIDED ALWAYS, this Indenture is intended to operate and is to be
construed as a deed passing 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 payment of
the Indebtedness. Should the Indebtedness be paid according to the tenor and
effect thereof when the same shall become due and payable, and should Grantor
perform all covenants herein in a timely manner, then this Indenture shall be
cancelled and surrendered by Grantee.
IN FURTHERANCE OF THE FOREGOING GRANTS (INCLUDING GRANTS OF SECURITY
INTERESTS), BARGAINS, SALES, ALIENATIONS, CONVEYANCES, CONFIRMATIONS, PLEDGES,
TRANSFERS AND ASSIGNMENTS, AND TO PROTECT THE PROPERTY AND THE SECURITY GRANTED
BY THIS INDENTURE, GRANTOR, FOR ITSELF AND FOR ITS SUCCESSORS AND ASSIGNS,
HEREBY WARRANTS, REPRESENTS, COVENANTS AND AGREES AS FOLLOWS:
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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:
"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 of Florida.
"Fixtures" shall have the meaning assigned to such term in clause (iv)
of the Granting Clause of this Indenture.
"Governmental Requirements" shall have the meaning assigned to such
term in the Loan Agreement.
"Grantee" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Grantor" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"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 Grantor, Grantee 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 to Secure Debt, Assignment of Leases
and Rents, and Security Agreement.
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"Land" shall mean those certain parcels of real property located in
the County of DeKalb, State of Georgia, 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.
"Loan Agreement" shall mean that certain Revolving Credit Loan
Agreement dated as of , 1997 between Grantor and Grantee.
"MGT" shall mean Xxxxxx Guaranty Trust Company of New York.
"Notes" shall mean the Revolving Promissory Note dated as of even date
herewith made by Grantor payable to the order of FUNB in the original principal
amount of $35,000,000, and the Revolving Promissory Note dated as of even date
herewith made by Grantor payable to the order of MGT 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 Grantor to or in favor of Grantee 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 Georgia.
"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.
ARTICLE II
2. Representations and Warranties. Grantor represents and warrants to
Grantee that (a) it has full power, authority and legal right to execute and
deliver this Indenture and to grant a first deed to secure debt of the
Property, (b) it holds good and marketable fee simple title to the Land and
good and marketable title to the balance of the Property, (c) this Indenture
constitutes a valid first deed to secure debt
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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
Grantee pursuant to this Indenture and the Loan Agreement, and, to the best of
Grantor's knowledge, no default exists under the Leases. Grantor, at its
expense, will warrant to Grantee and will defend its title to the Property and
the estate created by this Indenture against all claims and demands, and will
maintain and preserve such estate 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 estate created
hereby shall terminate in accordance with Article XVII Grantor 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 estate created hereby and the
rights of Grantee hereunder. Grantor 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 Grantor in the manner permitted by the Loan Agreement. Any Impositions which
are payable in installments may be paid in installments provided that Grantee
is otherwise in compliance with the Loan Agreement. Upon the written request of
Grantee from time to time, Grantor will furnish to Grantee official receipts or
other satisfactory proof evidencing such payments. In addition, Grantor will
pay all utility charges as required by the Loan Agreement. Grantor 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 Grantor 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.
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(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 Grantee 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, Grantor
shall give immediate written and oral notice thereof to Grantee and proceed in
accordance with the terms of the Loan Agreement. In case of any such material
damage, destruction or Taking, Grantee shall be entitled to hold all insurance
proceeds, payments or awards on account thereof, to the same extent Grantor
would be entitled thereto under the Loan Agreement, and Grantor hereby
irrevocably assigns to Grantee 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, Grantor 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 Grantee. At the sole cost and expense of
Grantor, Grantee may elect to monitor or participate in, and if reasonably
necessary, may hire independent legal counsel to represent Grantee in
connection with, any claim or the claims payment process. Grantor 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 Grantee shall be applied in accordance with
the provisions of the Loan Agreement.
(g) Notification of Default, Etc. Promptly after obtaining knowledge
thereof, notify Grantee of any Default hereunder or under the Loan Agreement or
of any action or proceeding materially and adversely affecting the Property.
ARTICLE IV
4. Negative Covenants. Without the prior written consent of Grantee,
Grantor 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 Grantee 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 Grantor; provided, however, that any such statutory liens
will promptly be discharged as and when such discharge is possible or
permissible. Grantor shall have the right to grant, without the prior consent
of Grantee, 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:
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(a) non-payment, when due, of any sums which Grantor is obligated to
pay hereunder or under the Loan Agreement continues unremedied for a period of
five (5) days after the date such payment is due; or
(b) failure of Grantor 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 Grantor in any
document, instrument or certificate delivered in connection with the financing
of the Property by Grantor proves to be untrue in any material respect; or
(e) if a default shall have occurred under any Other Indenture and
shall be continuing beyond the applicable grace or cure period provided
therein; or
(f) if Grantor 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 Grantor, a receiver or trustee for it or for any of the Property
or approving a petition filed against Grantor 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 Grantor in any of the Property shall be
levied upon or attached in any proceeding and such estate or interest is about
to be sold or transferred or such process shall not be vacated or discharged
within fifteen (15) days after such levy or attachment; or
(i) if Grantor sells, conveys or transfers, voluntarily or otherwise,
its interest in the Property without the prior written consent of Grantee;
then, in any such event, Grantee may accelerate the Indebtedness outstanding
under this Indenture, and may take such other actions as may be provided under
the Loan Agreement, or at law or in equity.
ARTICLE VI
6. Remedies in Case of Event of Default.
6.1. Legal Proceedings and Foreclosure. If an Event of Default shall
have occurred, Grantee 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
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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
estate created by this Indenture and the security interest of this Indenture as
against all or any part of the Property and to have all or any part of the
Property sold, in any manner permitted by law, under the judgment or decree of
a court or courts of competent jurisdiction, or otherwise, and to pursue any
other remedy available to it. If Grantee proceeds to foreclose the estate
created hereby, Grantee shall have the statutory power of sale if permitted by
applicable law. In the event of any such suit or proceeding, Grantee shall
comply with any local laws applicable to any such suits or proceedings. Any
such suit or proceeding instituted by Grantee shall be brought in its name as
Grantee and any recovery or judgement shall be for the benefit of Grantee. All
costs and expenses (including, without limitation, reasonable attorney's fees
and expenses) incurred by Grantee 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 Grantor to Grantee,
as the case may be, on demand.
6.2. Power of Sale. Without in any way limiting the other provisions
of this Indenture, but in addition thereto and in amplification thereof, upon
the occurrence of any Event of Default, Grantee, at its option, may sell the
Property or any part of the Property at one or more public sale or sales before
the door of the courthouse of the county in which the Property or any part of
the Property is situated, to the highest bidder for cash, in order to pay the
Indebtedness, any and all expenses of sale and of all proceedings in connection
therewith, including reasonable attorneys' fees, after advertising the time,
place and terms of sale once a week for four (4) consecutive weeks (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 general warranties of title and to this end,
Grantor hereby constitutes and appoints Grantee the agent and attorney-in-fact
of Grantor to make any such sale and conveyance and thereby to divest Grantor
of all right, title and 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 or 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. Grantee, its agents,
representatives, successors or assigns may bid and purchase at any such sale.
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
Indebtedness and shall not be exhausted by one exercise thereof but may be
exercised until full payment of all of the Indebtedness. In the event of any
sale under this Indenture by virtue of the exercise of the powers herein
granted, pursuant to any order in any judicial proceeding or otherwise, the
Property may be sold as an entirety or in separate parcels and in such manner
or order as Grantee in its sole discretion may elect, and if Grantee so elects,
Grantee may sell the personal property covered by this Indenture at one or more
separate sales in any manner permitted by the Uniform Commercial Code of the
State, and one or more exercises
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of the powers herein granted shall not extinguish nor exhaust such powers,
until the entire Property is sold or the Indebtedness is paid in full. If the
Indebtedness is now or hereafter further secured by any chattel mortgages,
pledges, contracts of guaranty, assignments of lease or other security
instruments, Grantee may, at its option, exhaust the remedies granted under any
of said security instruments either concurrently or independently, and in such
order as Grantee may determine.
6.3. Acceleration of Maturity. If an Event of Default shall have
occurred, Grantee may declare the entire outstanding Indebtedness under the
Loan Agreement, and all other sums secured hereby, to be due and payable
immediately, and upon such declaration, such Indebtedness and other sums shall
immediately become and be due and payable without demand or notice.
6.4. Leases. Grantee is authorized to foreclose this Indenture subject
to the rights of any tenants of the Property, and the failure to make any such
tenants parties defendant to any such foreclosure proceedings and to foreclose
their rights will not be, nor be asserted by Grantor to be, a defense to any
proceedings instituted by Grantee to collect the sums secured hereby or to
collect any deficiency remaining unpaid after the foreclosure sale of the
Property.
6.5. Suits to Protect the Property. Grantee shall have the power and
authority to institute and maintain any suits and proceedings as Grantee 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 Grantee's interest.
6.6. Discontinuance of Proceedings; Position of Parties Restored. If
Grantee 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, then and in every such instance,
Grantor and Grantee shall, except to the extent modified by such proceedings,
be restored to their former positions and rights hereunder, and all rights,
powers and remedies of Grantee shall continue as if no such proceeding had
occurred or had been taken.
6.7. Grantor to Pay the Indebtedness on Any Default in Payment;
Application of Monies by Grantee.
(a) If an Event of Default shall occur as a result of Grantor's
failure to pay any amount due under the Loan Agreement or this Indenture, then,
upon Grantee's demand, Grantor will pay to Grantee the whole amount due and
payable under the Loan Agreement and all other sums secured hereby. If Grantor
shall fail to pay the same forthwith upon such demand, Grantee 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 Grantee's agents, attorneys and other
representatives. Grantee 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 Grantee to
recover
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such judgment shall not be affected by any taking of possession or foreclosure
sale hereunder, or by the exercise of any other right, power or remedy for the
enforcement of the terms of this Indenture, or the foreclosure of the estate
created hereby.
(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, Grantee 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) Grantor hereby agrees, to the extent permitted by law, that no
recovery of any such judgment by Grantee and no attachment or levy of any
execution upon any of the Property or any other property shall in any way
affect the estate created hereby upon the Property or any part thereof or any
lien, rights, powers or remedies of Grantee hereunder, but such lien, rights,
powers and remedies of Grantee hereunder shall continue unimpaired as before.
ARTICLE VII
7.1. Purchase of the Property by Grantee. Upon any foreclosure sale,
Grantee may bid for and purchase the Property, and, upon compliance with the
terms of sale, may hold, retain and possess and dispose of such Property in its
own absolute right without further accountability.
7.2. Application of Indebtedness Toward Purchase Price. If Grantee
purchases the Property pursuant to foreclosure, power of sale or otherwise,
then Grantee may, in lieu of cash, apply all or any portion of the sums due to
Grantee under the Loan Agreement and this Indenture or any other instrument
securing the Indebtedness, to the unpaid balance of the purchase price
remaining after payment of any portion of the purchase price required to be
paid in cash, and the costs and expenses of the sale, compensation and other
charges relating to the sale.
ARTICLE VIII
8. Waiver of Appraisement, Valuation, Etc. Grantor hereby waives, to
the full extent it may lawfully do so, the benefit of all appraisement,
valuation, stay, moratorium, exemption from execution, extension and redemption
laws now or hereafter in force and all rights of marshaling in the event of the
sale of the Property or any part thereof or any interest therein.
ARTICLE IX
9. Appointment of Receiver. If an Event of Default shall have
occurred, Grantee shall, as a matter of right, be entitled, ex parte and
without notice, to the appointment of a receiver or receivers of the Property
or any part thereof in accordance with Georgia Official Code Section 9-8-3 and
without regard to the value of the Property as security for the Indebtedness,
or the solvency or insolvency of any Person liable for the payment of the
Indebtedness and without necessity or requirement for posting bond, whether
such receivership be incidental to a proposed
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sale thereof or otherwise, and Grantor hereby consents to the appointment of
such a receiver or receivers and will not oppose any such appointment. Any
receiver which may be appointed pursuant to this paragraph, shall have the
right, but not the obligation, to take possession, manage and operate the
Property, together with such other powers conferred upon it by the appointing
court. The expenses, including receiver's fees, attorney's fees, costs and
agent's compensation, incurred pursuant to the powers herein contained shall be
secured by this Indenture.
ARTICLE X
10. Possession, Management and Income. If an Event of Default shall
have occurred under this Indenture, Grantee, 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 Grantor and all other Persons and any and all property
therefrom, and Grantee 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 Grantee 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 all attorneys,
advisors, brokers, receivers, agents and other employees engaged or employed by
Grantee 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 estate
created hereby which Grantee may consider it necessary or desirable to
discharge and then (b) in the manner provided in Article XI of this Indenture.
If an Event of Default shall have occurred under the Loan Agreement or if the
Loan Agreement shall be terminated, all sums so received by Grantee shall be
applied in the manner specified in Article XI of this Indenture.
ARTICLE XI
11. Application of Proceeds. The proceeds of (a) the operation and
management of the Property pursuant to Article X of this Indenture, and (b) any
sale of the Property or any interest therein, shall, unless otherwise provided
in the Loan Agreement, be applied as follows:
First: to the costs and expenses of the sale, reasonable attorneys'
fees and expenses, court costs, and any other expenses or advances made or
incurred in the protection of the rights of Grantee or in the pursuance of any
remedies hereunder;
Second: to any lien prior to the estate created hereby which Grantee
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);
13
Fourth: to Grantee for payment of the Notes outstanding; and
Fifth: the balance, if any, to Grantor.
ARTICLE XII
12. Remedies, Etc., Cumulative. Each legal, equitable or contractual
right, power or remedy of Grantee 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 Grantee of any one or more of such rights, powers and
remedies shall not preclude the simultaneous or later exercise of any or all
such other rights, powers and remedies.
ARTICLE XIII
13. No Waiver, Etc. No failure by Grantee to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach hereof shall constitute a waiver of any such term or
of any such breach. No acceptance of the payment of any sums due under this
Indenture or under the Loan Agreement during the continuance of any Default
shall constitute a waiver thereof. No waiver of any breach shall affect or
alter this Indenture which shall continue in full force and effect with respect
to any other then existing or subsequent breach.
ARTICLE XIV
14. Right of Grantee to Perform Covenants, Etc. If Grantor 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, Grantee, without notice to or demand upon Grantor 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 Grantor and may enter upon the Property or
any part thereof for such purpose and take all such action thereon as, in the
opinion of Grantee, may be necessary or appropriate therefor. All sums so paid
by Grantee 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 Grantor to Grantee
on demand.
ARTICLE XV
15. Certificate as to No Default, Etc.; Information. At any time and
from time to time, Grantor will deliver to Grantee, promptly upon request, a
certificate signed by a duly authorized officer of Grantor 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 Grantor is taking or
proposes to take with respect thereto. Grantor will also furnish promptly to
Grantee, such information with respect to the Property and the Leases as may
from time to time be requested.
14
ARTICLE XVI
16. Additional Instruments. Grantor, at its expense, will execute,
acknowledge, secure and deliver all such instruments and take all such action
as Grantee 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 XVII
17. Satisfaction of the Indenture. This Indenture and the estate
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, Grantee shall release,
without warranty, the Property then subject to the estate created hereby to the
Persons entitled thereto. The recitals in any satisfaction 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". Grantee, at Grantor'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 estate created hereby, and (b) any other security
held by Grantee 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 XVIII
18. Applicable Law; Severability.
(a) This Indenture shall be governed by and construed in accordance
with the laws of the State.
(b) All rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not violate any applicable
law, and are intended to be limited to the extent necessary so that they will
not render this Indenture invalid, unenforceable or not entitled to be
recorded, registered or filed under any applicable law. If any term or
provision of this Indenture shall be held to be invalid, illegal or
unenforceable, the validity of the other terms and provisions hereof shall in
no way be affected thereby.
ARTICLE XIX
19. 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 Grantor, its successors and assigns, and
all Persons claiming under or through Grantor or any such successor or assign,
and shall inure to the benefit of and be enforceable by Grantee 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 Grantor and Grantee,
15
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 Grantee exceed the maximum amount permissible
under applicable law. If, in any circumstance whatsoever, interest would
otherwise be payable to Grantee in excess of the maximum lawful amount, and if
in any circumstance Grantee shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, 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 Grantor. All interest paid or agreed to be paid to
Grantee 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 Grantor and Grantee. 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.
ARTICLE XX
20. 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 Grantee in the Property, this Indenture or the Loan Agreement,
Grantor shall, upon demand, bear and pay the full amount (or any partial
amount) requested by Grantee, 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 XXI
21. No Petition. Grantee hereby covenants and agrees that it will not
institute against, or join any Person in instituting against Grantor, 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 Grantor pursuant to the
Loan Agreement.
ARTICLE XXII
22. The 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 Grantee, or otherwise, 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 that may be so secured may decrease or increase from time to time,
but the total unpaid
16
balance so secured at one time shall not exceed two (2) times the face amount
of the amount initially secured by this Indenture, plus interest thereon.
ARTICLE XXIII
23. Assignment of Leases and Rents. Grantor hereby grants, transfers
and assigns to Grantee Grantor's entire right, title and interest in and to the
Leases and Rents. This assignment of Leases and Rents by Grantor to Grantee is
intended to operate as an absolute and immediate assignment of such Leases and
Rents.
23.1 Grantor's Representations and Warranties.
(a) Grantor has good and lawful right, title, and interest in and to
the Leases, is entitled to receive the Rents from the Leases and from the
Property, has full power and authority to assign the Leases as provided herein
and to grant to and confer upon Grantee the powers, interests and authority set
forth herein, and has not assigned the Leases or Rents to any other party;
(b) Grantor has neither done any act nor omitted to do any act which
might prevent Grantee from, or limit Grantee in, acting under any of the
provisions of this assignment of Leases and Rents;
(c) All Leases provide for Rent to be paid monthly, in advance, and
Grantor has not accepted and will not accept payment of Rent for more than one
(1) month in advance; provided, however, Grantor may accept payment of Rent two
(2) months in advance if such Rent accepted two (2) months in advance does not
exceed five percent (5%) of the Rent collected during the applicable month; and
there are no agreements, understandings, or undertakings by Grantor providing
for free or reduced Rent in the past or in the future except as provided in the
Leases;
(d) Except as disclosed to Lender in writing, Grantor is not now in
default, the nature of which could have a material adverse impact on the
financial condition of Grantor or the value of the Property, under any
provision of any of the Leases, and no tenant under any of the Leases has
claimed or asserted any defense, offset, counter-claim, or abatement of rent,
and that the Leases remain in full force and effect. Grantor further represents
and warrants that it has no knowledge of any default by any tenant under any of
the Leases that could materially adversely affect the value of the Property;
(e) This assignment of Leases and Rents, the Leases, the performance
of each and every covenant of Grantor under the Leases, and the enforcement by
Grantee of its rights hereunder does not conflict with, or will not conflict
with, and does not constitute or will not constitute a breach or default, under
any agreement, indenture or other instrument to which Grantor is a party, or so
far as is known to Grantor, any law, ordinance, administrative regulation or
court decree which is applicable to Grantor;
(f) No action has been brought or, so far as is known to Grantor, is
threatened, which would interfere in any way with the right of Grantor to
execute and deliver this
17
assignment of Leases and Rents, and to perform all of Grantor's obligations
contained in this assignment of Leases and Rents and in the Leases; and
(g) To Grantor's knowledge, the Leases are valid, enforceable and
in full force and effect.
23.2 Grantor's Covenants. Grantor hereby covenants and agrees to
and with Grantee as follows:
(a) Grantor will notify Grantee in writing (but without any right of
approval or denial on the part of Grantee) of any termination, substitution or
material modification of any Leases involving 10,000 or more Xxxxx Net Square
Feet (as defined in the Loan Agreement);
(b) Grantor hereby acknowledges that any and all Rents collected or
received by Grantor after the occurrence of an Event of Default will be the
property of Grantee, which if received and collected by Grantor, will be
considered received and collected on Grantee's behalf and as Grantee's agent,
and will be held by Grantor in trust for the benefit of Grantee, and Grantor
will deliver all such sums to Grantee immediately upon Grantor's request
therefor;
(c) In accordance with sound business judgment, Grantor will use its
reasonable best efforts, at its cost and expense, to observe, perform and
discharge, or cause to be observed, performed and discharged, all of the
obligations and undertakings of Grantor or its agents under the Leases, and
will use its best efforts, in accordance with sound business judgment, to
enforce or secure, or cause to be enforced or secured, the performance of each
and every obligation and undertaking of the respective tenants under the
Leases, and will appear in and defend, at its cost and expense, any action or
proceeding arising under or in any manner connected with the Leases or the
obligations and undertakings of any tenant thereunder. Grantor will not do or
permit to be done anything to impair the security thereof, including without
limitation the execution of any other assignment of Grantor's interest in the
Leases or the Rents, without Grantee's prior written consent;
(d) Grantor authorizes and directs each and every present and future
tenant under the Leases to pay all Rent to Grantee upon receipt of written
demand from Grantee to so pay the same, and upon paying the same, such tenants
will be relieved from all liability to Grantor for such Rent in all respects.
To the extent not so provided by applicable law, each Lease will provide that,
in the event of enforcement by Grantee of the remedies provided for by law or
by this assignment of Leases and Rents, the tenant thereunder will, upon
request of any person succeeding to the interest of Grantor as a result of such
enforcement, automatically become the tenant of said successor in interest,
without change in the terms or other provisions of such Lease. Any such
successor in interest will not be bound by any payment of rent or additional
rent made more than one (1) month in advance;
(e) This assignment of Leases and Rents will not obligate Grantee to
take any action or to incur expenses or perform or discharge any obligation,
duty or liability of Grantor under any Lease, or for the control, care,
management, or repair of the Property; nor will it operate to make Grantee
responsible or liable for any waste
18
committed on the Property by the tenants or any other parties or for any
dangerous or defective condition of the Property, or for any act or
omission relating to the management, upkeep, repair, or control of the Property
that results in loss or injury or death to any person. Grantee will not be
liable for any loss sustained by Grantor resulting from Grantee's failure to
lease the Property after default. Grantor will and does hereby indemnify and
agree to hold harmless Grantee from and against any and all liability, loss,
cost, damage or expense which may be incurred under the Leases or by reason of
this assignment of Leases and Rents and from any and all claims and demands
whatsoever which may be asserted against Grantee by reason of any alleged
obligations or undertakings on its part to perform or discharge any of the
terms, covenants, or agreements contained in the Leases except to the extent
the same is caused by the negligence of Grantee. Should Grantee incur any such
liability under the Leases or by reason of this assignment of Leases and Rents
or in defense of any such claims or demands, the amount thereof, including
costs, expenses, and reasonable attorneys' and paralegals' fees and costs, will
be secured hereby and Grantor will reimburse Grantee therefor immediately upon
demand and upon the failure of Grantor so to do, Grantee may, at its option,
declare all sums secured hereby immediately due and payable, or may charge the
costs thereof to Grantor as an advance under the Notes; and
(f) This assignment of Leases and Rents is made without prejudice to
any of the rights and remedies possessed by Grantee under the Loan Agreement,
and the right of Grantee to exercise its remedies under this assignment of
Leases and Rents may be exercised by Grantee either prior to, simultaneously
with, or subsequent to any action taken by it under the Loan Agreement. Each
and every right, remedy and power granted to Grantee by this assignment of
Leases and Rents will be cumulative and in addition to any other right, remedy
and power given by the Loan Agreement now or hereafter existing in equity, at
law or by virtue of statute or otherwise. Nothing contained in this assignment
of Leases and Rents, and no act done or omitted by Grantee pursuant to the
powers and rights granted it hereunder, nor the failure of Grantee to avail
itself of any of the rights and remedies under this assignment of Leases and
Rents, will be construed or deemed to be a waiver of any of Grantee's rights
and remedies under this assignment of Leases and Rents, nor will such exercise
or omission to exercise of the powers and rights granted Grantee hereunder be
deemed to constitute a waiver of its rights and remedies under the Loan
Agreement.
23.3. Grantee's Covenants.
(a) Although this assignment of Leases and Rents constitutes a present
and absolute assignment of the Leases and the Rents, as long as there is no
Event of Default on the part of Grantor, Grantee will not require that such
Rents be paid directly to Grantee, and Grantor will have a license to collect
and use the Rents for subsequent application as provided above;
(b) Upon the payment and performance in full of Grantor's obligations
under the Loan Agreement, as evidenced by the recording or filing of an
instrument of satisfaction or termination of this Indenture without the
recording of another security instrument in favor of Grantee affecting the
Property, this assignment of Leases and
19
Rents will be deemed terminated and released of record by Grantee and
thereupon will be null and void and of no further force or effect.
23.4. Remedies. If any Event of Default occurs, Grantee may, at
its option, with or without notice or demand of any kind, exercise any
and all of the following remedies:
(a) Either in person, by court appointed receiver or by agent, with or
without bringing any action or proceeding, demand and thereupon take possession
of the Property, to have, hold, manage, lease and operate the same on such
terms and for such period of time as Grantee may deem proper, and either with
or without taking possession of the Property in its own name, demand and
receive the Rents in the possession of Grantor at the time of Grantee's written
demand or collected thereafter, including those past due and unpaid, with full
power to make from time to time all alterations, renovations, repairs, or
replacements thereto or thereof as may seem proper to Grantee, and to apply
such Rents to the payment of: (i) all reasonable expenses of managing the
Property, including, without limitation, the salaries, fees and wages of the
managing agent and such other employees as Grantee may deem necessary or
desirable, all taxes, charges, claims, assessments, liens, premiums for all
insurance which Grantee may deem necessary or desirable, costs of renovations,
repairs, or replacements, and all expenses incident to taking and retaining
possession of the Property and protecting and preserving the same; or (ii) the
principal sum and interest thereon of the Notes, together with all costs and
attorneys' and paralegals' fees and costs; all in such order or priority as
Grantee in its sole discretion may determine, any custom or use to the contrary
notwithstanding; and
(b) In the name of Grantor or of Grantee, institute any legal or
equitable action which Grantee in its sole discretion deems desirable to
collect and receive any or all of the Rents.
Nothing herein contained will be construed to cause Grantee to be a
mortgagee in possession nor will Grantee be liable for laches for failure to
collect the Rents, and it is understood that Grantee is to account only for
such sums as are actually received by Grantee.
23.5 Further Assurances. At Grantee's request, Grantor will assign and
transfer to Grantee any and all subsequent Leases upon all or any part of the
Property and to execute and deliver at the request of Grantee all such further
assurances and assignments in the Leases and the Rents as Grantee will require
from time to time in its sole discretion.
23.6 Subordination, Nondisturbance and Attornment. The Leases are and
at all times shall be subject and subordinate in all respects to this
Indenture, and to all renewals, modifications, amendments, consolidations,
replacements, refinancings and extensions of this Indenture, to the full extent
of all principal, interest and all other amounts secured hereby. Provided that
a tenant is not in default under its Lease, Grantee shall not disturb the
occupancy of such tenant under its Lease during the term of such Lease,
notwithstanding foreclosure of this Indenture, acceptance of a deed in lieu of
foreclosure or exercise of any other remedy provided herein, or
20
pursuant to the laws of the State of Georgia. If requested by a tenant under
any of the Leases or upon Grantee's request, Grantor shall enter into a
subordination, nondisturbance and attornment agreement (reasonably acceptable
in form and substance to Grantee) with such tenant whereby Grantee will agree
to not disturb the tenant in its possession of the Property provided such
tenant is not in default under its Lease and the tenant will agree to attorn to
Grantee if Grantee takes possession of the Property.
ARTICLE XXIV
24. Security Agreement. (a) This Indenture is hereby made and declared
to be a security agreement, encumbering each and every item of personal
property included herein, in compliance with the provisions of the Uniform
Commercial Code as enacted in the State. A financing statement or statements
reciting this Indenture to be a security agreement, affecting all of said
personal property aforementioned, shall be executed by Grantor and Grantee and
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 Uniform Commercial Code, 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 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 Indenture, is, and at all times and for all
purposes and in all proceedings both legal or equitable shall be, regarded as
part of the Property 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 (aa) the proceeds of any
fire and/or hazard insurance policy, or (bb) any award in eminent domain
proceeds for a taking or for loss of value, or (cc) 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 instrument impugning the priority of Grantee's estate
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 (aa), (bb)
or (cc), that notice of Grantee's priority of interest to be effective against
a particular class of persons, must be filed in the Uniform Commercial Code
records.
(b) Grantor warrants that (i) Grantor's (that is "Debtor's") name,
identity or corporate structure and residence or principal place of business
are as set forth in Exhibit C hereto; (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 Exhibit C hereto; and (iii) the
location of the collateral is upon the Property. Grantor covenants and agrees
that Grantor will furnish Grantee with notice of any change in
21
the matters addressed by clauses (i) or (iii) of this subparagraph (b)
within thirty (30) days of the effective date of any such change and Grantor
will promptly execute any financing statements or other instruments deemed
necessary by Grantee to prevent any filed financing statement from becoming
misleading or losing its perfected status.
(c) The information contained in this subparagraph (c) is provided in
order that this Indenture 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. The names of the "Debtor" and the "Secured
Party," the identity or corporate structure and residence or principal place of
business 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 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 Exhibit C attached hereto; and a statement
indicating the types, or describing the items, of collateral are as set forth
hereinabove.
ARTICLE XXV
25. Waiver of Homestead. Grantor hereby waives and renounces all
homestead and exemption rights provided for by the Constitution and 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.
ARTICLE XXVI
26. WAIVER OF GRANTOR'S RIGHTS. BY EXECUTION OF THIS INDENTURE,
GRANTOR EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT TO ACCELERATE THE INDEBTEDNESS
SECURED HEREBY AND THE POWER OF ATTORNEY GIVEN HEREIN TO GRANTEE TO SELL THE
PROPERTY BY NON-JUDICIAL 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 INDENTURE; (B)
WAIVES ANY AND ALL RIGHTS WHICH GRANTOR MAY HAVE UNDER THE CONSTITUTION OF THE
UNITED STATES (INCLUDING THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF, THE
VARIOUS PROVISIONS OF THE CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF
ANY OTHER APPLICABLE LAW), (1) TO NOTICE AND JUDICIAL HEARING PRIOR TO THE
EXERCISE BY GRANTEE OF ANY RIGHT OR REMEDY HEREIN PROVIDED TO GRANTEE EXCEPT
SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO BE PROVIDED IN THIS
INDENTURE; AND (2) CONCERNING THE APPLICATION, RIGHTS OR BENEFITS OF ANY
MORATORIUM, REINSTATEMENT, MARSHALING, FORBEARANCE, APPRAISEMENT, VALUATION,
STAY, EXTENSION, HOMESTEAD, EXEMPTION OR REDEMPTION LAWS; (C) ACKNOWLEDGES THAT
GRANTOR HAS READ THIS INDENTURE AND ANY AND ALL QUESTIONS REGARDING THE LEGAL
EFFECT OF THIS INDENTURE AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO
GRANTOR AND GRANTOR HAS CONSULTED WITH COUNSEL OF GRANTOR'S CHOICE PRIOR TO
EXECUTING THIS INDENTURE; AND (D) ACKNOWLEDGES THAT ALL WAIVERS OF THE
AFORESAID RIGHTS OF GRANTOR HAVE BEEN MADE
22
KNOWINGLY, INTENTIONALLY AND WILLINGLY BY GRANTOR AS PART OF A BARGAIN FOR
THE LOAN TRANSACTION AND THAT THIS INDENTURE IS VALID AND ENFORCEABLE BY
GRANTEE AGAINST GRANTOR IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS HEREOF.
ARTICLE XXVII
27. Approval of Legal Description. Grantor 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 Grantee and its
attorneys with respect to any liability which might arise as a consequence of
any error or omission therein.
ARTICLE XXVIII
28. 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.
23
IN WITNESS WHEREOF, Grantor has caused this Indenture to be executed,
sealed, and attested by its proper officers thereunto duly authorized, as of
the day and year first above written.
Signed, sealed and delivered XXXXX EQUITY, INC., a
in the presence of: Florida corporation
/s/ Xxxxxx X. Xxxx By: /s/ G. Xxxxx Xxxxxxx (SEAL)
---------------------- ------------------------
Witness Name: G. Xxxxx Xxxxxxx
Title: Treasurer
/s/ Xxxxxxxxx X. Xxxx Attest: /s/ Xxxxx X. Xxxxx
---------------------- ------------------------
Notary Public Name: Xxxxx X. Xxxxx
Title: Assistant Secretary
[CORPORATE SEAL]
My Commission Expires:
9-28-98
[NOTARY SEAL]
24
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
[LEGAL DESCRIPTION OF REAL PROPERTY NOT INCLUDED IN FORM 8-K FILING
WITH SECURITIES AND EXCHANGE COMMISSION]
25
EXHIBIT B
Permitted Encumbrances
[NOT INCLUDED IN FORM 8-K FILING WITH SECURITIES AND EXCHANGE COMMISSION]
26
EXHIBIT C
DEBTOR
NAME: Xxxxx Equity, Inc.
CORPORATE
STRUCTURE: a Florida corporation
PRINCIPAL PLACE
OF BUSINESS: 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
TIME PERIOD
USING NAME
WITHOUT CHANGE: June 21, 1988 to present
SECURED PARTY
NAME: First Union National Bank of Florida
PRINCIPAL PLACE
OF BUSINESS: 000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
AND
NAME: Xxxxxx Guaranty Trust Company of New York
PRINCIPAL PLACE
OF BUSINESS: 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
