EXHIBIT 10.6
Prepared by:
Xxxxxxxx X. Xxx
Hunter, Maclean, Xxxxx & Xxxx, P.C.
000 Xxxx Xx, Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Recording requested by, and after recording, return to:
GE Commercial Finance Business Property Corporation
Attn: Middle Market Risk
00000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Loan No.: 0012744-001
COMMERCIAL DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS,
FINANCING STATEMENT AND FIXTURE FILING
TRUSTOR: WESTERN EXPRESS, INC., a Tennessee corporation
TRUSTEE: XXXXX XXXXXX, a resident of Xxxxxxxxxx County, Tennessee
BENEFICIARY: GE COMMERCIAL FINANCE BUSINESS PROPERTY CORPORATION, a
Delaware corporation
PROPERTY: 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxxx,
more particularly described in Exhibit A.
Dated September 29, 2005
$10,150,000.00
NOTICE: THE DEBT SECURED HEREBY IS SUBJECT TO CALL IN FULL OR THE TERMS THEREOF
BEING MODIFIED IN THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY HEREIN
CONVEYED.
THE MAXIMUM PRINCIPAL INDEBTEDNESS FOR TENNESSEE RECORDING TAX PURPOSES IS
$10,150,000.00
THIS DEED OF TRUST (herein "Instrument"), made and given as of
September 29, 2005, by the Trustor, WESTERN EXPRESS, INC., a Tennessee
corporation, whose address is 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxxxxx (herein
"Borrower"), in favor of XXXXX XXXXXX, a resident of Xxxxxxxxxx County,
Tennessee, having a business address at Gullett, Sanford, Xxxxxxxx & Xxxxxx,
PLLC, 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxxx Xxx 00000, Xxxxxxxxx,
Xxxxxxxxx 00000-0000 (herein "Trustee"), for the benefit of the Beneficiary, GE
COMMERCIAL FINANCE BUSINESS PROPERTY CORPORATION, a Delaware corporation, whose
address is Middle Market Risk, 10900 Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000 (herein "Lender"), as beneficiary,
WITNESSETH:
THAT, WHEREAS, Borrower is justly indebted to Lender in the
principal sum of $10,150,000.00, pursuant to a certain Promissory Note of even
date herewith, more particularly described below,
NOW, THEREFORE, in consideration of the indebtedness herein
recited and the trust herein created, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Borrower irrevocably grants, conveys and assigns to Trustee, in trust, WITH
POWER OF SALE, all of Borrower's estate, right, title and interest, now owned or
hereafter acquired, including any reversion or remainder interest, in the real
property located in the City of Nashville, County of Davidson, State of
Tennessee, commonly known as 0000 Xxxxxxxxxx Xxxxx, and more particularly
described on Exhibit A attached hereto and incorporated herein including all
heretofore or hereafter vacated alleys and streets abutting the property, and
all easements, rights, appurtenances, tenements, hereditaments, rents,
royalties, mineral, oil and gas rights and profits, water, water rights, and
water stock appurtenant to the property (collectively "Premises");
TOGETHER with all of Borrower's estate, right, title and
interest, now owned or hereafter acquired, in, under, and to:
1. all buildings, structures, improvements, parking areas,
landscaping, equipment, fixtures and articles of property now or hereafter
erected on, attached to, or used or adapted for use in the operation of the
Premises; including but without being limited to, all heating, air conditioning
and incinerating apparatus and equipment; all boilers, engines, motors, dynamos,
generating equipment, piping and plumbing fixtures, water heaters, ranges,
cooking apparatus and mechanical kitchen equipment, refrigerators, freezers,
cooling, ventilating, sprinkling and vacuum cleaning systems, fire extinguishing
apparatus, gas and electric fixtures, carpeting, floor coverings, underpadding,
elevators, escalators, partitions, mantels, built-in mirrors, window shades,
blinds, draperies, screens, storm sash, awnings, signs, and shrubbery and
plants, and including also all interest of any owner of the Premises in any of
such items hereafter at any time acquired under conditional sale contract,
chattel mortgage or other title retaining or security instrument, all of which
property mentioned in this clause (a) shall be deemed part of the realty covered
by this Instrument and not severable wholly or in part without material injury
to the freehold of the Premises (all of the foregoing together with replacements
and additions thereto are referred to herein as "Improvements"); and
2. all compensation, awards, damages, rights of action and
proceeds, including interest thereon and/or the proceeds of any policies of
insurance therefor, arising out of or relating to (i) a taking or damaging of
the Premises or Improvements thereon by reason of any public or private
improvement, condemnation proceeding (including change of grade), sale or
transfer in lieu of condemnation, or fire, earthquake or other casualty, or (ii)
any injury to or decrease in the value of the Premises or the Improvements for
any reason whatsoever;
3. return premiums or other payments upon any insurance any
time provided with respect to the Premises, Improvements, and other collateral
described herein for the benefit of or naming Lender, and refunds or rebates of
taxes or assessments on the Premises;
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4. all written and oral leases and rental agreements
(including extensions, renewals and subleases; all of the foregoing shall be
referred to collectively herein as the "Leases") now or hereafter affecting the
Premises including, without limitation, all rents, issues, income, profits and
other revenues and income therefrom and from the renting, leasing or bailment of
Improvements and equipment ("Rents"), all guaranties of tenants' performance
under the Leases, and all rights and claims of any kind that Borrower may have
against any tenant under the Leases or in connection with the termination or
rejection of the Leases in a bankruptcy or insolvency proceeding;
5. plans, specifications, contracts and agreements relating to
the design or construction of the Improvements; Borrower's rights under any
payment, performance, or other bond in connection with the design or
construction of the Improvements; all landscaping and construction materials,
supplies, and equipment used or to be used or consumed in connection with
construction of the Improvements, whether stored on the Premises or at some
other location; and contracts, agreements, and purchase orders with contractors,
subcontractors, suppliers, and materialmen incidental to the design or
construction of the Improvements;
6. all contracts, deposits, deposit accounts, accounts, all
rights, claims or causes of action pertaining to or affecting the Premises or
the Improvements, including, without limitation, all supporting obligations and
any and all proceeds thereof, all options or contracts to acquire other property
for use in connection with operation or development of the Premises or
Improvements, management contracts, service or supply contracts, permits,
licenses, franchises and certificates, and all commitments or agreements, now or
hereafter in existence, intended by the obligor thereof to provide Borrower with
proceeds to satisfy the loan evidenced hereby or improve the Premises or
Improvements, and the right to receive all proceeds due under such commitments
or agreements including refundable deposits and fees;
7. all books, records, surveys, reports and other documents
related to the Premises, the Improvements, the Leases, or other items of
collateral described herein; and
8. all additions, accessions, replacements, substitutions,
proceeds and products of the real and personal property, tangible and
intangible, described herein, including but not limited to lease and real-estate
proceeds and other amounts relating to the use, disposition, or sale of the
collateral described herein which proceeds or other amounts are characterized as
general intangibles.
All of the foregoing described collateral is exclusive of any
equipment, inventory, furniture, furnishings or trade fixtures owned and
supplied by tenants of the Premises. The Premises, the Improvements, the Leases
and all of the rest of the foregoing property are herein referred to as the
"Property."
TO HAVE AND TO HOLD the above-described Property unto Trustee
in trust for the benefit of Lender and its successors and assigns forever.
BUT THIS IS A TRUST DEED
TO SECURE TO Lender (a) the repayment of the indebtedness
evidenced by that certain [Balloon] Promissory Note dated of even date herewith
from Borrower, as maker, to Lender, as payee, in the principal sum of Ten
Million One Hundred Fifty Thousand and no Dollars ($10,150,000.00), with
interest thereon as set forth therein, having a maturity date of October 1,
2025, and all renewals, extensions and modifications thereof (herein "Note");
(b) the repayment of any future advances, with interest thereon, made by Lender
to Borrower pursuant to Section 30 hereof (herein "Future Advances"); (c) the
payment of all other sums, with interest thereon, advanced in accordance
herewith to protect the security of this Instrument or to fulfill any of
Borrower's obligations hereunder or under the other Loan Documents (as defined
below); (d) the performance of the covenants and agreements of Borrower
contained herein or in the other Loan Documents; and (e) the repayment of all
sums now or hereafter owing to Lender by Borrower pursuant to any instrument
which recites that it is secured hereby. The indebtedness and obligations
described in clauses (a)-(e) above are collectively referred to herein as the
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"Indebtedness." The Note, this Instrument, and all other documents evidencing,
securing or guaranteeing the Indebtedness (except the Environmental Indemnity
Agreement Regarding Hazardous Materials ("Indemnity")), as the same may be
modified or amended from time to time, are referred to herein as the "Loan
Documents." The terms of the Note secured hereby may provide that the interest
rate or payment terms or balance due may be indexed, adjusted, renewed, or
renegotiated from time to time, and this Instrument shall continue to secure the
Note notwithstanding any such indexing, adjustment, renewal or renegotiation.
Borrower represents and warrants that Borrower has good,
marketable and insurable title to, and has the right to grant, convey and assign
an indefeasible fee simple estate in, the Premises, Improvements, Rents and
Leases (or, if this Instrument is on a leasehold, good, marketable and insurable
title to, and the right to convey the leasehold estate and that the Ground Lease
is in full force and effect without modification except as noted above and
without default on the part of either lessor or lessee thereunder), and the
right to convey the other Property, that the Property is unencumbered except as
disclosed in writing to and approved by Lender prior to the date hereof, and
that Borrower will warrant and forever defend unto Trustee the title to the
Property against all claims and demands, subject only to the exceptions set
forth in Schedule 1 attached hereto ("Permitted Exceptions").
Borrower represents, warrants, covenants and agrees for the
benefit of Lender as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly
pay when due the principal of and interest on the Indebtedness, any prepayment
and other charges provided in the Loan Documents and all other sums secured by
this Instrument.
2. IMPOUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. Except as
is hereinafter provided with respect to the impounding of such payments by
Lender following the occurrence of an Event of Default, Borrower shall pay or
cause to be paid when due, prior to delinquency, all annual real estate taxes,
insurance premiums, assessments, water and sewer rates, ground rents and other
charges (herein "Impositions") payable with respect to the Property. Upon the
occurrence of an Event of Default (hereinafter defined), and at Lender's sole
option at any time thereafter, Borrower shall pay in addition to each monthly
payment on the Note, one-twelfth of the annual Impositions (as estimated by
Lender in its sole discretion), to be held by Lender without interest to
Borrower, for the payment of such Impositions (such payments being referred to
herein as "Impounds").
Annually during the term of this Instrument, Lender shall
compare the Impounds collected to the Impositions paid or to be paid. If the
amount of such Impounds held by Lender at such time shall exceed the amount
deemed necessary by Lender to provide for the payment of Impositions as they
fall due, if no Event of Default shall have occurred and be continuing, such
excess shall be at Borrower's option, either repaid to Borrower or credited to
Borrower on the next monthly installment or installments of Impounds due. If at
any time the amount of the Impounds held by Lender shall be less than the amount
deemed necessary by Lender to pay Impositions as they fall due, Borrower shall
pay to Lender any amount necessary to make up the deficiency within thirty (30)
days after notice from Lender to Borrower requesting payment thereof. Upon the
occurrence of an Event of Default hereunder, Lender may apply, in any amount and
in any order as Lender shall determine in Lender's sole discretion, any Impounds
held by Lender at the time of application (i) to pay Impositions which are now
or will hereafter become due, or (ii) as a credit against sums secured by this
Instrument. Upon payment in full of all sums secured by this Instrument, Lender
shall refund to Borrower any Impounds then held by Lender. If requested by
Lender, Borrower shall promptly furnish to Lender all notices of Impositions
which become due, and in the event Borrower shall make payment directly,
Borrower shall promptly furnish to Lender receipts evidencing such payments.
3. APPLICATION OF PAYMENTS. Unless applicable law provides
otherwise, each complete installment payment received by Lender from Borrower
under the Note or this Instrument shall be applied by Lender first in payment of
amounts payable to Lender by Borrower under Section 2 hereof, then to interest
payable on the Note, then to principal of the Note, and then to interest and
principal on
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any Future Advances in such order as Lender, at Lender's sole discretion, shall
determine. Upon the occurrence of an Event of Default, Lender may apply, in any
amount and in any order as Lender shall determine in Lender's sole discretion,
any payments received by Lender under the Note or this Instrument. Any partial
payment received by Lender shall, at Lender's option, be held in a non-interest
bearing account until Lender receives funds sufficient to equal a complete
installment payment.
4. CHARGES, LIENS. Borrower shall promptly discharge or bond
off any lien which has, or may have, priority over or equality with, the lien of
this Instrument, and Borrower shall pay, when due, the claims of all persons
supplying labor or materials to or in connection with the Property. Without
Lender's prior written permission, Borrower shall not allow any lien inferior to
this Instrument to be perfected against the Property. If any lien inferior to
this Instrument is filed against the Property without Lender's prior written
permission and without the consent of Borrower, Borrower shall, within thirty
(30) days after receiving notice of the filing of such lien, cause such lien to
be released of record or bonded off and deliver evidence of such release or
bonding to Lender. Borrower may contest any such lien by appropriate proceedings
in good faith, timely filed, provided that enforcement of the lien is stayed
pending such contest. Lender may require that Borrower post security for payment
of such lien.
5. INSURANCE. Borrower shall obtain and maintain the following
types of insurance upon and relating to the Property:
(a) "Special Form" property and fire insurance (with extended
coverage endorsement including malicious mischief and vandalism) in an amount
not less than the full replacement value of the Property (with a deductible not
to exceed $10,000), naming Lender under a lender's loss payable endorsement
naming Lender as mortgagee and loss payee and including agreed amount, inflation
guard, replacement cost and waiver of subrogation endorsements;
(b) Commercial general liability insurance in an amount not
less than $2,000,000 per occurrence and on an occurrence basis, insuring against
personal injury, death and property damage and naming Lender as additional
insured;
(c) Business interruption insurance or rent-loss insurance, as
applicable, covering loss of rental or other income (including all expenses
payable by tenants) for up to twelve (12) months;
(d) Flood hazard insurance with respect to the Property in
amounts not less than the maximum limit of coverage then available with respect
to the Property or the amount of the Indebtedness, whichever is less if the
Property is located in an area designated by the Federal Emergency Management
Act or is hereafter designated or identified as an area having special flood
hazards by the Department of Housing and Urban Development or such other
official as shall from time to time be authorized by federal or state law to
make such designation pursuant to any national or state program of flood
insurance;
(e) Such other types of insurance or endorsements to existing
insurance as may be required from time to time by Lender in accordance with its
standard commercial lending practices for similar properties and transactions.
Upon the request of Lender, Borrower shall increase the
coverages under any of the insurance policies required to be maintained
hereunder or otherwise modify such policies in accordance with Lender's standard
commercial lending practices for similar properties and transactions. All of the
insurance policies required hereunder shall be issued by corporate insurers
licensed to do business in the state in which the Property is located and having
a Best's Rating-Financial Size Rating of A:VIII or better as determined and
published by A.M. Best Company, and shall be in form acceptable to Lender.
Certificates of all insurance required to be maintained hereunder shall be
delivered to Lender (which may include the requirement of an Xxxxx 28 "Evidence
of Property Insurance" form as to property insurance) prior to or
contemporaneously with Borrower's execution of this Instrument. All such
certificates shall be in form acceptable to Lender and shall require the
insurance company to give to Lender at least thirty (30) days' prior written
notice before canceling the policy for any reason or materially amending it.
Certificates
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evidencing all renewal and substitute policies of insurance shall be delivered
to Lender at least fifteen (15) days before termination of the policies being
renewed or substituted. If any loss shall occur at any time when Borrower shall
be in default hereunder, Lender shall be entitled to the benefit of all
insurance policies held or maintained by Borrower, to the same extent as if same
had been made payable to Lender, and upon foreclosure hereunder, Lender shall
become the owner thereof. Lender shall have the right, but not the obligation,
to make premium payments, at Borrower's expense, to prevent any cancellation,
endorsement, alteration or reissuance of any policy of insurance maintained by
Borrower, and such payments shall be accepted by the insurer to prevent same.
If any act or occurrence of any kind or nature (including any
casualty for which insurance was not obtained or obtainable) shall result in
damage to or destruction of the Property (such event being called a "Loss"),
Borrower will give prompt written notice thereof to Lender. If no Event of
Default has occurred hereunder and is continuing, Lender shall apply all such
insurance proceeds to the restoration, replacement and rebuilding of the damaged
portion of the Property, and such restoration, replacement and rebuilding shall
be accomplished, upon satisfaction of each and all of the following conditions:
(i) except as provided in (ii) below, Lender shall be satisfied that by the
expenditure of such insurance proceeds the Property will be fully restored
within a reasonable period of time to its value immediately preceding the loss
or damage, free and clear of all liens, except the lien of this Instrument, the
Permitted Exceptions set forth in Schedule 1 attached hereto, and such other
liens as are specifically approved by Lender in writing under this Instrument;
(ii) in the event such proceeds shall be insufficient to restore or rebuild the
Property, Borrower shall deposit promptly with Lender funds which, together with
the insurance proceeds, shall be sufficient in Lender's judgment to restore and
rebuild the Property; (iii) Borrower shall make reasonable efforts to obtain a
waiver of the right of subrogation from any insurer under such policies of
insurance who, at that time, claims that no liability exists as to Borrower or
the then owner or the assured under such policies; (iv) the excess of such
insurance proceeds above the amount necessary to complete such restoration and
compensate Borrower for all other insured losses shall be applied on account of
the Indebtedness (first to interest, then to expenses reimbursable to Lender and
then to principal amounts falling due under the Note without Prepayment Fee (as
defined in the Note)); (v) Lender reviews and approves in writing the plans and
specifications for the restoration work and Lender receives written evidence
satisfactory to Lender that the same have been approved by all governmental
authorities having jurisdiction; (vi) Borrower shall have furnished to Lender,
for Lender's approval, a detailed budget and cost breakdown for said restoration
work signed by Borrower and describing the nature and type of expenses and
amounts thereof estimated by Borrower for said restoration work including, but
not limited to, the cost of material and supplies, architect and designer fees,
general contractor's fees, and the anticipated monthly disbursement schedule,
and Lender shall have given to Borrower written approval of such budget and cost
breakdown (if Borrower determines at any time that its actual expenses differ or
will differ from its estimated budget, it will so advise Lender promptly); (vii)
Borrower has delivered to Lender evidence satisfactory to Lender that all Leases
existing at the time of the Loss will remain in full force and effect subject
only to abatement of rent in accordance with the terms of the Leases until
completion of such repair and restoration; and (viii) in Lender's reasonable
judgment, such restoration work can be completed at least six (6) months prior
to the maturity of the Note.
In the event any of such conditions are not or cannot be
satisfied, then all of the insurance proceeds payable with respect to such Loss
will be applied to the payment of the Indebtedness in such order as Lender may
elect.
Under no circumstances shall Lender become obligated to take
any action to restore the Property; all proceeds released or applied by Lender
to the restoration of the Property pursuant to the provisions of this Section 5
shall be released and/or applied to the cost of restoration (including within
the term "restoration" any repair, reconstruction or alteration) as such
restoration progresses, in amounts which shall equal ninety percent (90%) of the
amounts from time to time certified by an architect approved by Lender to have
been incurred in such restoration of any and all of the Property (i.e., 90% of
the total amount expended by the contractor for the project under a contract
approved by Lender and billed by the contractor to Borrower) and performed by a
contractor reasonably satisfactory to Lender and who shall furnish such
corporate surety bond, if any, as may be reasonably required by Lender in
accordance with the plans and specifications therefor approved by Lender and the
remaining ten percent (10%) upon completion of such
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restoration and delivery to Lender of evidence reasonably satisfactory to Lender
that no mechanics' lien exists with respect to the work of such restoration;
that the restoration work has been completed and fully paid for in accordance
with plans and specifications for said work approved by Lender; and that all
Leases existing at the time the Loss occurred are in full force and effect with
all tenants in possession and paying full Lease rental; and that all
governmental approvals required for the completion of said restoration work and
occupancy of the Property have been obtained and the same are in form and
substance satisfactory to Lender.
If within a reasonable period of time after the occurrence of
any Loss, Borrower shall not have submitted to Lender and received Lender's
approval of plans and specifications for the repair, restoration or rebuilding
of such Loss or shall not have obtained approval of such plans and
specifications from all governmental authorities whose approval is required, or
if, after such plans and specifications are approved by Lender and by all such
governmental authorities, Borrower shall fail to commence promptly such repair,
restoration or rebuilding, or if thereafter Borrower fails to carry out
diligently such repair, restoration or rebuilding or is delinquent in the
payment to mechanics, materialmen or others of the costs incurred in connection
with such work, or if any other condition of this Section 5, is not satisfied
within a reasonable period of time after the occurrence of any such Loss, then
Lender may, in addition to all other rights herein set forth, at Lender's
option, (A) declare that an Event of Default has occurred and/or apply all of
the insurance proceeds payable with respect to such Loss to the payment of the
Indebtedness in such order as Lender may elect, and/or (B) Lender, or any
lawfully appointed receiver of the Property may at their respective options,
perform or cause to be performed such repair, restoration or rebuilding, and may
take such other steps as they deem advisable to carry out such repair,
restoration or rebuilding, and may enter upon the Property for any of the
foregoing purposes, and Borrower hereby waives, for itself and all others
holding under it, any claim against Lender and such receiver (other than a claim
based upon the alleged gross negligence or intentional misconduct of Lender or
any such receiver) arising out of anything done by them or any of them pursuant
to this Section 5 and Lender may in its discretion apply any proceeds held by it
to reimburse itself and/or such receiver for all amounts expended or incurred by
it in connection with the performance of such work, including attorneys' fees,
and any excess costs shall be paid by Borrower to Lender and Borrower's
obligation to pay such excess costs shall be secured by the lien of this
Instrument and shall bear interest at the Default Rate set forth in the Note,
until paid.
Nothing herein, and no authority given to Borrower to repair,
rebuild or restore the Property or any portion thereof, shall be deemed to
constitute Borrower the agent of Lender for any purpose, or to create, either
expressly or by implication, any liens or claims or rights on behalf of
laborers, mechanics, materialmen or other lien holders which could in any way be
superior to the lien or claim of Lender, or which could be construed as creating
any third party rights of any kind or nature to the insurance funds. At
reasonable times during the work of restoration, and upon reasonable notice,
Lender, either personally or by duly authorized agents, shall have the right to
enter upon the Property for inspection of the work. Borrower expressly assumes
all risk of loss, including a decrease in the use, enjoyment or value of the
Property from any casualty whatsoever, whether or not insurable or insured
against.
Borrower waives any and all right to claim or recover against
Lender or its officers, employees, agents and representatives, for loss of or
damage to Borrower, the Property, Borrower's property or the property of others
under Borrower's control from any cause insured against or required to be
insured against under this Section 5.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower (a)
shall not commit waste or permit impairment or deterioration of the Property,
(b) shall not abandon the Property, (c) shall restore or repair promptly and in
a good and workmanlike manner all or any part of the Property to the equivalent
of its original condition, or such other condition as Lender may approve in
writing, in the event of any damage, injury or loss thereto, whether or not
insurance proceeds are available to cover in whole or in part the costs of such
restoration or repair, (d) shall keep the Property, including all Improvements
thereon, in good repair and shall replace fixtures, equipment, machinery and
appliances on the Property when necessary to keep such items in good repair, (e)
shall comply with all laws, ordinances, regulations and requirements of any
governmental body applicable to the Property, (f) if all or
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part of the Property is for rent or lease, then Lender, at its option after the
occurrence of an Event of Default, may require Borrower to provide for
professional management of the Property by a property manager satisfactory to
Lender pursuant to a contract approved by Lender in writing, unless such
requirement shall be waived by Lender in writing, and (g) shall give notice in
writing to Lender of and, unless otherwise directed in writing by Lender, appear
in and defend any action or proceeding purporting to affect the Property, the
security of this Instrument or the rights or powers of Lender hereunder. Neither
Borrower nor any tenant or other person, without the written approval of Lender,
shall remove, demolish or alter any Improvement now existing or hereafter
erected on the Premises or any Property, except when incident to the replacement
of fixtures, equipment, machinery and appliances with items of like kind.
Borrower represents, warrants and covenants that the Property
is and shall be in substantial compliance with the Americans with Disabilities
Act of 1990 and all of the regulations promulgated thereunder, as the same may
be amended from time to time.
7. USE OF PROPERTY. Unless required by applicable law or
unless Lender has otherwise agreed in writing, Borrower shall not allow changes
in the use for which all or any part of the Property was intended at the time
this Instrument was executed. Borrower shall not, without Lender's prior written
consent, (i) initiate or acquiesce in a change in the zoning classification
(including any variance under any existing zoning ordinance applicable to the
Property), (ii) permit the use of the Property to become a non-conforming use
under applicable zoning ordinances, (iii) file any subdivision or parcel map
affecting the Property, or (iv) amend, modify or consent to any easement or
covenants, conditions and restrictions pertaining to the Property.
8. PROTECTION OF LENDER'S SECURITY. If Borrower fails to
perform any of the covenants and agreements contained in this Instrument, or if
any action or proceeding is commenced which affects the Property or title
thereto or the interest of Lender therein, including, but not limited to,
eminent domain, insolvency, code enforcement, or arrangements or proceedings
involving a bankrupt or decedent, then Lender at Lender's option may make such
appearances, disburse such sums and take such action as Lender deems necessary,
in its sole discretion, to protect Lender's interest, including, but not limited
to, (i) disbursement of attorneys' fees, (ii) entry upon the Property to make
repairs, and (iii) procurement of satisfactory insurance as provided in Section
5 hereof. If this Instrument is on a leasehold, such action may include exercise
of any option to renew or extend the Ground Lease on behalf of Borrower and the
curing of any default of Borrower in the terms and conditions of the Ground
Lease.
Any amounts disbursed by Lender pursuant to this Section 8,
with interest thereon, shall become additional Indebtedness of Borrower secured
by this Instrument. Unless Borrower and Lender agree to other terms of payment,
such amounts shall be immediately due and payable and shall bear interest from
the date of disbursement at the Default Rate (as defined in the Note). Borrower
hereby covenants and agrees that Lender shall be subrogated to the lien of any
mortgage or other lien discharged, in whole or in part, by the Indebtedness.
Nothing contained in this Section 8 shall require Lender to incur any expense or
take any action hereunder.
9. INSPECTION. Lender may make or cause to be made reasonable
entries upon the Property to inspect the interior and exterior thereof. Except
in case of emergency, such inspection shall be with reasonable prior notice and
shall in any case be with due regard to rights of tenants.
10. FINANCIAL DATA. Borrower will furnish to Lender, and will
cause any guarantor of the Indebtedness to furnish to Lender on request, within
ninety (90) days after the close of its fiscal year (i) annual balance sheet and
profit and loss statements prepared in accordance with generally accepted
accounting principles and practices consistently applied and, if Lender so
requires, accompanied by the annual audit report of an independent certified
public accountant reasonably acceptable to Lender, (ii) an annual operating
statement, together with a complete rent roll and other supporting data
reflecting all material information with respect to the operation of the
Property and Improvements, and (iii) all other financial information and reports
that Lender may from time to time reasonably request, including, if Lender so
requires, income tax returns of Borrower and any guarantor of any portion of the
Indebtedness, and financial statements of any tenants designated by Lender.
7
11. CONDEMNATION. If the Property, or any part thereof, shall
be condemned for any reason, including without limitation fire or earthquake
damage, or otherwise taken for public or quasi-public use under the power of
eminent domain, or be transferred in lieu thereof, (such event being called a
"Taking") and if an Event of Default has not occurred hereunder and is not
continuing, Lender shall apply all such proceeds to the restoration, replacement
and rebuilding of the Property, and such restoration, replacement and rebuilding
shall be accomplished, upon satisfaction of each and all of the following
conditions: (i) except as provided in (ii) below, Lender shall be satisfied that
by the expenditure of such proceeds the Property will be fully restored within a
reasonable period of time to its value immediately preceding the Taking, free
and clear of all liens, except the lien of this Instrument, the Permitted
Exceptions set forth in Schedule 1 attached hereto, and such other liens as are
specifically approved by Lender in writing under this Instrument; (ii) in the
event such proceeds shall be insufficient to restore or rebuild the Property,
Borrower shall deposit promptly with Lender funds which, together with the
proceeds, shall be sufficient in Lender's judgment to restore and rebuild the
Property; (iii) the excess of such proceeds above the amount necessary to
complete such restoration and compensate Borrower for all other losses shall be
applied on account of the Indebtedness (first to interest, then to expenses
reimbursable to Lender and then to principal amounts falling due under the Note
without Prepayment Fee); (iv) Lender reviews and approves in writing the plans
and specifications for the restoration work and Lender receives written evidence
satisfactory to Lender that the same have been approved by all governmental
authorities having jurisdiction; (v) Borrower shall have furnished to Lender,
for Lender's approval, a detailed budget and cost breakdown for said restoration
work signed by Borrower and describing the nature and type of expenses and
amounts thereof estimated by Borrower for said restoration work including, but
not limited to, the cost of material and supplies, architect and designer fees,
general contractor's fees, and the anticipated monthly disbursement schedule,
and Lender shall have given to Borrower written approval of such budget and cost
breakdown (if Borrower determines at any time that its actual expenses differ or
will differ from its estimated budget, it will so advise Lender promptly); (vi)
Borrower has delivered to Lender evidence satisfactory to Lender that all Leases
existing at the time of the Taking will remain in full force and effect subject
only to abatement of rent in accordance with the terms of the Leases until
completion of such repair and restoration; and (vii) in Lender's reasonable
judgment, such restoration work can be completed at least six (6) months prior
to the maturity of the Note.
In the event any of such conditions are not or cannot be
satisfied, then all of the proceeds payable with respect to such Taking will be
applied to the payment of the Indebtedness in such order as Lender may elect.
Under no circumstances shall Lender become obligated to take
any action to restore the Property; all proceeds released or applied by Lender
to the restoration of the Property pursuant to the provisions of this Section 11
shall be released and/or applied on the cost of restoration (including within
the term "restoration" any repair, reconstruction or alteration) as such
restoration progresses, in amounts which shall equal ninety percent (90%) of the
amounts from time to time certified by an architect approved by Lender to have
been incurred in such restoration of any and all of the Property (i.e., 90% of
the total amount expended by the contractor for the project under a contract
approved by Lender and billed by the contractor to Borrower) and performed by a
contractor reasonably satisfactory to Lender and who shall furnish such
corporate surety bond, if any, as may be reasonably required by Lender in
accordance with the plans and specifications therefor approved by Lender and the
remaining ten percent (10%) upon completion of such restoration and delivery to
Lender of evidence reasonably satisfactory to Lender that no mechanics' lien
exists with respect to the work of such restoration; that the restoration work
has been completed and fully paid for in accordance with plans and
specifications for said work approved by Lender; and that all Leases existing at
the time the Taking occurred are in full force and effect with all tenants in
possession and paying full Lease rental; and that all governmental approvals
required for the completion of said restoration work and occupancy of the
Property have been obtained and the same are in form and substance satisfactory
to Lender.
If within a reasonable period of time after the occurrence of
any Taking, Borrower shall not have submitted to Lender and received Lender's
approval of plans and specifications for the repair,
8
restoration or rebuilding of the Property or shall not have obtained approval of
such plans and specifications from all governmental authorities whose approval
is required, or if, after such plans and specifications are approved by Lender
and by all such governmental authorities, Borrower shall fail to commence
promptly such repair, restoration or rebuilding, or if thereafter Borrower fails
to carry out diligently such repair, restoration or rebuilding or is delinquent
in the payment to mechanics, materialmen or others of the costs incurred in
connection with such work, or if any other condition of this Section 11 is not
satisfied within a reasonable period of time after the occurrence of any such
Taking, then Lender may, in addition to all other rights herein set forth, at
Lender's option, (A) declare that an Event of Default has occurred and/or apply
all of the proceeds of the Taking to the payment of the Indebtedness in such
order as Lender may elect, and/or (B) Lender, or any lawfully appointed receiver
of the Property may at their respective options, perform or cause to be
performed such repair, restoration or rebuilding, and may take such other steps
as they deem advisable to carry out such repair, restoration or rebuilding, and
may enter upon the Property for any of the foregoing purposes, and Borrower
hereby waives, for itself and all others holding under it, any claim against
Lender and such receiver (other than a claim based upon the alleged gross
negligence or intentional misconduct of Lender or any such receiver) arising out
of anything done by them or any of them pursuant to this Section 11 and Lender
may in its discretion apply any proceeds held by it to reimburse itself and/or
such receiver for all amounts expended or incurred by it in connection with the
performance of such work, including attorneys' fees, and any excess costs shall
be paid by Borrower to Lender and Borrower's obligation to pay such excess costs
shall be secured by the lien of this Instrument and shall bear interest at the
Default Rate set forth in the Note, until paid.
Nothing herein, and no authority given to Borrower to repair,
rebuild or restore the Property or any portion thereof, shall be deemed to
constitute Borrower the agent of Lender for any purpose, or to create, either
expressly or by implication, any liens or claims or rights on behalf of
laborers, mechanics, materialmen or other lien holders which could in any way be
superior to the lien or claim of Lender, or which could be construed as creating
any third party rights of any kind or nature to the proceeds. At reasonable
times during the work of restoration, and upon reasonable notice, Lender, either
personally or by duly authorized agents, shall have the right to enter upon the
Property for inspection of the work. Borrower expressly assumes all risk of
loss, including a decrease in the use, enjoyment or value of the Property from
any casualty whatsoever, whether or not insurable or insured against.
12. BORROWER AND LIEN NOT RELEASED. From time to time, Lender
may, at Lender's option, without giving notice to or obtaining the consent of
Borrower, Borrower's successors or assigns or of any junior lienholder or
guarantors, without liability on Lender's part and notwithstanding the
occurrence of an Event of Default, extend the time for payment of the
Indebtedness or any part thereof, reduce the payments thereon, release anyone
liable on any of the Indebtedness (including but not limited to any guarantor,
accept an extension or modification or renewal note or notes therefor, modify
the terms and time of payment of the Indebtedness, enter into a loan
modification agreement with Borrower, release from the lien of this Instrument
any part of the Property, accept or release other or additional security,
reconvey any part of the Property, consent to any map or plan of the Property,
consent to the granting of any easement, join in any extension or subordination
agreement, and agree in writing with Borrower to modify the rate of interest or
period of amortization of the Note or change the amount of the monthly
installments payable thereunder. Any actions taken by Lender pursuant to the
terms of this Section 12 shall not affect the obligation of Borrower or
Borrower's successors or assigns to pay the sums secured by this Instrument and
to observe the covenants of Borrower contained herein, shall not affect the
guaranty of any person, corporation, partnership or other entity for payment of
the Indebtedness, and shall not affect the lien or priority of the lien hereof
on the Property. Borrower shall pay Lender a reasonable service charge, together
with such title insurance premiums and attorneys' fees as may be incurred at
Lender's option (based on Lender's ten-current fee schedule for such matters),
for any such action if taken at Borrower's request or for other servicing
requests, including but not limited to name changes, prepayments of the
Indebtedness, and loan pay off statement requests. Such service change is
exclusive of any legal fees which may be incurred by Lender in connection with
Borrower's request.
13. FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by
Lender in exercising any right or remedy hereunder, or otherwise afforded by
applicable law, shall not be a waiver
9
of or preclude the exercise of any other right or remedy. The acceptance by
Lender of payment of any sum secured by this Instrument after the due date of
such payment shall not be a waiver of Lender's right to either require prompt
payment when due of all other sums so secured or to declare a default for
failure to make prompt payment. The procurement of insurance or the payment of
taxes or other liens or charges by Lender shall not be a waiver of Lender's
right to accelerate the maturity of the Indebtedness secured by this Instrument,
nor shall Lender's receipt of any awards, proceeds or damages under Sections 5
and 11 hereof operate to cure or waive Borrower's default in payment of sums
secured by this Instrument.
14. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This
Instrument is intended to be a security agreement pursuant to the Uniform
Commercial Code for any of the items specified above as part of the Property
which, under applicable law, may be subject to a security interest pursuant to
the Uniform Commercial Code, and Borrower hereby grants and conveys to Lender a
first and prior security interest in all of the Property that constitutes
personal property ("Collateral", for purposes of this Section 14), whether now
owned or hereafter acquired. Borrower agrees that Lender may file this
Instrument, or a reproduction thereof, in the real estate records or other
appropriate index, as a financing statement for any of the items specified above
as part of the Collateral. Any reproduction of this Instrument or of any other
security agreement or financing statement shall be sufficient as a financing
statement. In addition, Lender may submit for filing any financing statements,
as well as extensions, renewals and amendments thereof, and reproductions of
this Instrument in such form as Lender may deem appropriate to perfect a
security interest with respect to the foregoing items. Borrower shall pay all
costs of filing such financing statements and any extensions, renewals,
amendments and releases thereof, and shall pay all costs and expenses of any
record searches for financing statements Lender may require.
Borrower expressly warrants and covenants:
(a) Except for the security interest granted hereby,
Borrower is the owner of the Collateral free from any
lien, security interest or encumbrance. Borrower
understands that any further encumbrance of the
Collateral is prohibited. Borrower shall defend the
Collateral against all claims and demands of all
persons at any time claiming the same or any interest
therein.
(b) The Collateral is used or bought primarily for use in
the business of Borrower and not for consumer
purposes.
(c) Borrower's business address is as stated above. The
Collateral is located at or on or is used or owned
for or in connection with the Premises and other
Property.
(d) Borrower shall promptly notify Lender of any change
in the location of the Collateral or any change in
Borrower's principal place of business.
(e) Borrower shall pay when due, prior to delinquency,
all taxes and assessments of every nature which may
be levied or assessed against the Collateral.
(f) Except for liens in favor of Lender, without Lender's
prior written consent, Borrower shall not permit or
allow any lien, security interest or encumbrance
whatsoever upon the Collateral and shall not permit
the Collateral to be attached or replevied. Lender's
consent to a junior lien by an entity owned by, or
under common control with, Lender shall not be
unreasonably withheld.
(g) The Collateral is in good condition and Borrower
shall keep the Collateral in good condition
(reasonable wear and tear excepted) and from time to
time, forthwith, replace and repair all such parts of
the Collateral as may be broken, worn out, or damaged
without allowing any lien to be created upon the
Collateral on account
10
of such replacement or repairs. Lender may examine
and inspect the Collateral at any time, wherever
located, subject to reasonable prior notice.
(h) Borrower will not use the Collateral in violation of
any applicable statutes, regulations or ordinances.
(i) Notwithstanding anything else contained herein to the
contrary, if any personal property for use on the
Property will be leased to Borrower, Lender's
interest therein shall be subordinate to lessor's
interest therein.
Until the occurrence of an Event of Default, Borrower may have
possession of the Collateral and use it in any lawful manner, and upon the
occurrence of an Event of Default Lender shall have the immediate right to the
possession of the Collateral.
Upon the occurrence of an Event of Default, Lender shall have
the remedies of a secured party under the Uniform Commercial Code, and Lender
may also invoke the remedies provided in Section 26 of this Instrument as to
such items. In exercising any of said remedies Lender may proceed against the
items of real property and any items of Collateral specified above separately or
together and in any order whatsoever, without in any way affecting the
availability of Lender's remedies under the Uniform Commercial Code or of the
remedies provided in Section 26 of this Instrument. Within ten (10) days
following any request therefor by Lender, Borrower shall prepare and deliver to
Lender a written inventory specifically listing all of the Collateral covered by
the security interest herein granted, which inventory shall be certified by
Borrower as being true, correct, and complete.
FIXTURE FILING. The following information is provided in order
that this Instrument shall comply with the requirements of the Uniform
Commercial Code, as enacted in the State of Tennessee, for instruments to be
filed as financing statements and with other requirements of applicable law:
(a) Name of Borrower (Debtor): Western Express, Inc.
Type of Organization corporation
Address of Borrower: 0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx
(b) Name of Lender (Secured Party): GE COMMERCIAL FINANCE BUSINESS
PROPERTY CORPORATION
Address of Lender: 00000 Xxxxxxxxx Xxxxxx Xxxxxx,
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Middle Market Risk
(c) Record Owner of Real Estate BORROWER
Described on Exhibit A hereto:
------------------------------
(d) Borrower's Jurisdiction of
Organization or Incorporation: Tennessee
0232804
(e) Organizational No.:
15. LEASES OF THE PROPERTY. As used in this Section 15,, the
word "Lease" shall include subleases. Borrower shall comply with and observe
Borrower's obligations as landlord under all Leases of the Property or any part
thereof. All Leases now or hereafter entered into will be in form and substance
subject to the approval of Lender. Borrower shall not enter into, modify, amend,
extend, renew, or terminate any Lease without the prior written consent of
Lender. Borrower shall pay all
11
attorneys' fees incurred by Lender in reviewing any Lease or proposed Lease. All
Leases of the Property shall specifically provide that such Leases are
subordinate to this Instrument; that the tenant attorns to Lender, such
attornment to be effective upon Lender's acquisition of title to the Property;
that the tenant agrees to execute such further evidences of attornment as Lender
may from time to time request; that the attornment of the tenant shall not be
terminated by foreclosure; and that Lender may, at Lender's option, accept or
reject such attornments (except as to third-party credit tenants unrelated to
Borrower, as to which Lender shall grant a non-disturbance provision). Borrower
shall not, without Lender's written consent, request or consent to the
subordination of any Lease of all or any part of the Property to any lien
subordinate to this Instrument. If Borrower becomes aware that any tenant
proposes to do, or is doing, any act or thing which may give rise to any right
of set-off against rent, Borrower shall (i) take such steps as shall be
reasonably calculated to prevent the accrual of any right to a set-off against
rent, (ii) immediately notify Lender thereof in writing and of the amount of
said set-offs, and (iii) within ten (10) days after such accrual, reimburse the
tenant who shall have acquired such right to set-off or take such other steps as
shall effectively discharge such setoff and as shall assure that Rents
thereafter due shall continue to be payable without set-off or deduction. Upon
Lender's receipt of notice of the occurrence of any default or violation by
Borrower of any of its obligations under the Leases beyond applicable periods
for notice and cure, Lender shall have the immediate right, but not the duty or
obligation, without prior written notice to Borrower or to any third party (but
with due regard for rights of tenants under Leases), to enter upon the Property
and to take such actions as Lender may deem necessary to cure the default or
violation by Borrower under the Leases. The costs incurred by Lender in taking
any such actions pursuant to this paragraph shall become part of the
Indebtedness, shall bear interest at the Default Rate provided in the Note, and
shall be payable by Borrower to Lender on demand. Lender shall have no liability
to Borrower or to any third party for any actions taken by Lender or not taken
pursuant to this paragraph.
16. REMEDIES CUMULATIVE. Each remedy provided in this
Instrument is distinct and cumulative to all other rights or remedies under this
Instrument or afforded by law or equity, and may be exercised concurrently,
independently, or successively, in any order whatsoever.
17. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN
BORROWER; SUBORDINATE FINANCING PROHIBITED; ASSUMPTION. Lender may, at its
option, declare all sums secured by this Instrument to be immediately due and
payable, and Lender may invoke any remedies permitted by Section 26, of this
Instrument, if title to the Property is changed without the prior written
consent of Lender, which consent shall be at Lender's sole discretion. Any
transfer of any interest in the Property or in the income therefrom, by sale,
lease (except for Leases to tenants in the ordinary course of managing income
property which are approved by Lender pursuant to Section 15 of this
Instrument), contract, mortgage, deed of trust, further encumbrance or otherwise
(including any such transfers as security for additional financing of the
Property), and any change in the ownership interests in Borrower (including any
transfer, pledge, assignment, or hypothecation of, or other change in the
ownership interests of any legal entities which comprise or control Borrower),
shall be considered a change of title, except transfers and changes in ownership
by devise or descent. Leasehold deeds of trust and collateral assignments of any
Lease of the Property given by tenants of the Property are prohibited without
the prior written consent of Lender, which consent may be withheld in Lender's
sole discretion. Notwithstanding the foregoing, additional but subordinate deeds
of trust may be granted to Lender and, subject to the prior written consent of
Lender, which consent may be withheld in Lender's sole discretion, may be
granted to entities owned by or under common control with Lender.
Lender shall have the right to condition its consent to any
proposed sale or transfer described in this Section 17 upon, among other things,
Lender's approval of the transferee's creditworthiness and management ability,
and the transferee's execution, prior to the sale or transfer, of a written
assumption agreement containing such terms as Lender may require, including, if
required by Lender, the imposition of an assumption fee of one percent (1%) of
the then outstanding balance of the Indebtedness. Consent by Lender to one
transfer of the Property shall not constitute consent to subsequent transfers or
waiver of the provisions of this Section 17. No transfer by Borrower shall
relieve Borrower of liability for payment of the Indebtedness, unless Lender
shall otherwise agree in writing at the
12
time of such transfer. Borrower shall pay any recording tax, recording cost,
title insurance premium, attorneys' fees, or other third-party expenses incurred
by Lender in connection with any transfer, whether or not consent is required.
The transfer to and assumption by an approved transferee of
the Borrower's obligations under the Loan shall not constitute a "prepayment" of
the Loan requiring payment of a "Prepayment Fee" (as defined in the Note).
18. NOTICE. Except for any notice required under applicable
law to be given in another manner, any and all notices, elections, demands, or
requests permitted or required to be made under this Instrument or under the
Note shall be in writing, signed by the party giving such notice, election,
demand or request, and shall be delivered personally, or sent by registered,
certified, or Express United States mail, postage prepaid, or by Federal Express
or similar nationally recognized delivery service requiring a receipt, to the
other party at the address stated above, or to such other party and at such
other address within the United States of America as any party may designate in
writing as provided herein. The date of receipt of such notice, election, demand
or request shall be the earliest of (i) the date of actual receipt, (ii) three
(3) business days after the date of mailing by registered or certified mail,
(iii) one (1) business day after the date of sending via overnight delivery by
Express Mail, Federal Express, or another similar service requiring a receipt,
or (iv) the date of personal delivery (or refusal by or on behalf of the
addressee upon presentation for delivery of a properly addressed notice).
19. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY;
AGENTS; CAPTIONS. The covenants and agreements herein contained shall bind, and
the rights hereunder shall inure to, the respective heirs, successors and
assigns of Lender and Borrower, subject to the provisions of Section 17, hereof.
If Borrower is comprised of more than one person or entity, whether as
individuals, partners, partnerships, limited liability companies, or
corporations, each such person or entity shall be jointly and severally liable
for Borrower's obligations hereunder, subject to the limitations on recourse set
forth in the Note. In exercising any rights hereunder or taking any actions
provided for herein, Lender may act through its employees, agents or independent
contractors as authorized by Lender. The captions and headings of the sections
of this Instrument are for convenience only and are not to be used to interpret
or define the provisions hereof.
20. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives
the right to assert any statute of limitations as a bar to the enforcement of
the lien of this Instrument or to any action brought to enforce the Note or any
other obligation secured by this Instrument.
21. WAIVER OF MARSHALLING. Notwithstanding the existence of
any other security interests in the Property held by Lender or by any other
party, Lender shall have the right to determine the order in which any or all of
the Property shall be subjected to the remedies provided herein. Lender shall
have the right to determine the order in which any or all portions of the
Indebtedness secured hereby are satisfied from the proceeds realized upon the
exercise of the remedies provided herein. Borrower, any party who consents to
this Instrument and any party who now or hereafter acquires a security interest
in the Property and who has actual or constructive notice hereof hereby waives
any and all right to require the marshalling of assets in connection with the
exercise of any of the remedies permitted by applicable law or provided herein.
22. HAZARDOUS WASTE. Lender has obtained and Borrower has
reviewed a Phase I Environmental Site Assessment dated September 16, 2005,
prepared by XXXXX International Incorporated (the "Report"). Except as disclosed
to Lender in the Report, Borrower has received no notification of any kind
suggesting that the Property or any adjacent property is or may be contaminated
with any hazardous waste or materials or is or may be required to be cleaned up
in accordance with any applicable law or regulation; and Borrower further
represents and warrants that, except as previously disclosed to Lender in
writing, to the best of its knowledge as of the date hereof, there are no
hazardous waste or materials located in, on or under the Property or any
adjacent property, or incorporated in any Improvements, nor has the Property or
any adjacent property ever been used as a landfill or a waste disposal site, or
a manufacturing, handling, storage, distribution or disposal facility for
hazardous waste or
13
materials, except for reasonable quantities of ordinary office supplies,
cleaning supplies, insecticides, pesticides, and paint used in the normal
operation and maintenance of the Property, provided that the same are used,
stored, handled, and disposed of in accordance with applicable laws ("Permitted
Substances"). As used herein, the term "hazardous waste or materials" includes
any substance or material defined in or designated as hazardous or toxic wastes,
hazardous or toxic material, a hazardous, toxic or radioactive substance, or
other similar term, by any federal, state or local statute, regulation or
ordinance now or hereafter in effect. Borrower shall promptly comply with all
statutes, regulations and ordinances, and with all orders, decrees or judgments
of governmental authorities or courts having jurisdiction, relating to the use,
collection, treatment, disposal, storage, control, removal or cleanup of
hazardous waste or materials in, on or under the Property or any adjacent
property, or incorporated in any Improvements, at Borrower's expense. In the
event that Lender at any time has reason to believe that the Property is not
free of all hazardous waste or materials other than Permitted Substances or that
Borrower has violated any applicable environmental law with respect to the
Property, then immediately, upon request by Lender, Borrower shall promptly
order, diligently pursue obtaining and furnish to Lender, at Borrower's sole
cost and expense, an environmental audit and inspection of the Property from an
expert satisfactory to Lender. In the event that Borrower fails to immediately
obtain such audit or inspection, Lender or its agents may perform or obtain such
audit or inspection at Borrower's sole cost and expense. Lender may, but is not
obligated to, enter upon the Property and take such actions and incur such costs
and expenses to effect such compliance as it deems advisable to protect its
interest in the Property; and whether or not Borrower has actual knowledge of
the existence of hazardous waste or materials on the Property or any adjacent
property as of the date hereof, Borrower shall reimburse Lender as provided in
Section 23 below for the full amount of all costs and expenses incurred by
Lender prior to Lender acquiring title to the Property through foreclosure or
acceptance of a deed in lieu of foreclosure, in connection with such compliance
activities. Neither this provision nor any of the other Loan Documents shall
operate to put Lender in the position of an owner of the Property prior to any
acquisition of the Property by Lender. The rights granted to Lender herein and
in the other Loan Documents are granted solely for the protection of Lender's
lien and security interest covering the Property, and do not grant to Lender the
right to control Borrower's actions, decisions or policies regarding hazardous
waste or materials.
23. ADVANCES, COSTS AND EXPENSES. Borrower shall pay within
ten (10) days after written demand from Lender all sums advanced by Lender and
all costs and expenses incurred by Lender in taking any actions pursuant to the
Loan Documents including attorneys' fees and disbursements, accountants' fees,
appraisal and inspection fees and the costs for title reports and guaranties,
together with interest thereon at the rate applicable under the Note after an
Event of Default from the date such costs were advanced or incurred. All such
costs and expenses incurred by Lender, and advances made, shall constitute
advances under this Instrument to protect the Property and shall be secured by
and have the same priority as the lien of this Instrument. If Borrower fails to
pay any such advances, costs and expenses and interest thereon, Lender may apply
any undisbursed loan proceeds to pay the same, and, without foreclosing the lien
of this Instrument, may at its option commence an independent action against
Borrower for the recovery of the costs, expenses and/or advances, with interest,
together with costs of suit, costs of title reports and guaranty of title,
disbursements of counsel and reasonable attorneys' fees incurred therein or in
any appeal therefrom. If any check delivered by or on behalf of Borrower in
payment of any monthly installment due on the Indebtedness or any other payment
due hereunder shall be returned on account of insufficient funds, or if Lender
is unable to debit Borrower's account for such payment in accordance with
previously agreed automated funds withdrawal mechanism, Borrower shall pay a
service charge in accordance with Lender's current fee schedule.
24. ASSIGNMENT OF LEASES AND RENTS. Borrower, for good and
valuable consideration, the receipt of which is hereby acknowledged, to secure
the Indebtedness, does hereby absolutely and unconditionally grant, bargain,
sell, transfer, assign, convey, set over and deliver unto Lender all right,
title and interest of Borrower in, to and under the Leases of the Property,
whether now in existence or hereafter entered into, and all guaranties,
amendments, extensions and renewals of said Leases and any of them, and all
Rents which may now or hereafter be or become due or owing under the Leases, and
any of them, or on account of the use of the Property.
14
The assignment made hereunder is an absolute, present
assignment from Borrower to Lender, effective immediately, and is not merely an
assignment for security purposes but is irrevocable by Borrower so long as the
Indebtedness remains outstanding. Notwithstanding the foregoing, until a notice
is sent to the Borrower in writing that an Event of Default (as defined below)
has occurred under the terms and conditions of the Note or any instrument
constituting security for the Note (which notice is hereafter called a
"Notice"), Borrower is granted a license to receive, collect and enjoy the Rents
accruing from the Property.
If an Event of Default shall occur, Lender may, at its option,
after service of a Notice, receive and collect all such Rents as they become
due, from the Property. Lender shall thereafter continue to receive and collect
all such Rents, until Lender shall otherwise agree in writing. All sums received
by Borrower after service of such Notice shall be deemed received in trust and
shall be immediately turned over to Lender.
Borrower hereby irrevocably appoints Lender its true and
lawful attorney-in-fact with power of substitution and with full power for
Lender in its own name and capacity or in the name and capacity of Borrower,
from and after service of Notice, to demand, collect, receive and give complete
acquittances for any and all Rents accruing from the Property, either in its own
name or in the name of Borrower or otherwise, which Lender may deem necessary or
desirable in order to collect and enforce the payment of the Rents and to
demand, correct, receive, endorse, and deposit all checks, drafts, money orders
or notes given in payment of such Rents. Such appointment is coupled with an
interest and is irrevocable. Lender shall not be liable for or prejudiced by any
loss of any note, checks, drafts, etc., unless such loss is found by a court of
competent jurisdiction to have been due to the gross negligence or willful
misconduct of Lender.
Lender shall apply the Rents received from Borrower's lessees,
to accrued interest and principal under the Note. If no Event of Default remains
uncured, amounts received in excess of the aggregate monthly payment due under
the Note shall be remitted to Borrower in a timely manner. Nothing contained
herein shall be construed to constitute Lender as a mortgagee-in-possession in
absence of its physically taking possession of the Property.
Borrower also hereby irrevocably appoints Lender from and
after service of a Notice as its true and lawful attorney-in-fact to appear in
any state or federal bankruptcy, insolvency, or reorganization proceeding in any
state or federal court involving any of the tenants of the Leases. Lessees of
the Property are hereby expressly authorized and directed, from and after
service of a Notice to pay any and all amounts due Borrower pursuant to the
Leases to Lender or such nominee as Lender may designate in writing delivered to
and received by such lessees who are expressly relieved of any and all duty,
liability or obligation to Borrower in respect of all payments so made.
If an Event of Default shall occur, Lender is hereby vested
with full power from and after service of a Notice to use all measures, legal
and equitable, deemed by it necessary or proper to enforce the assignment
granted hereunder and to collect the Rents assigned hereunder, including the
right of Lender or its designee, to enter upon the Property, or any part
thereof, and take possession of all or any part of the Property together with
all personal property, fixtures, documents, books, records, papers and accounts
of Borrower relating thereto, and may exclude the Borrower, its agents and
servants, wholly therefrom. Borrower hereby grants full power and authority to
Lender to exercise all rights, privileges and powers herein granted at any and
all times after service of a Notice, with full power to use and apply all of the
Rents and other income herein assigned to the payment of the costs of managing
and operating the Property and of any indebtedness or liability of Borrower to
Lender, including but not limited to the payment of taxes, special assessments,
insurance premiums, damage claims, the costs of maintaining, repairing,
rebuilding and restoring the Improvements on the Premises or of making the same
rentable, reasonable attorneys' fees incurred in connection with the enforcement
of the assignment granted hereunder, and of principal and interest payments due
from Borrower to Lender on the Note and this Instrument, all in such order as
Lender may determine. Lender shall be under no obligation to exercise or
prosecute any of the rights or claims assigned to it hereunder or to perform or
carry out any of the obligations of the lessor under any of the Leases and does
not assume any of the liabilities in connection
15
with or arising or growing out of the covenants and agreements of Borrower in
the Leases. It is further understood that the assignment granted hereunder shall
not operate to place responsibility for the control, care, management or repair
of the Property, or parts thereof, upon Lender, nor shall it operate to make
Lender liable for the performance of any of the terms and conditions of any of
the Leases, or for any waste of the Property by any lessee under any of the
Leases or any other person, or for any dangerous or defective condition of the
Property or for any negligence in the management, upkeep, repair or control of
the Property resulting in loss or injury or death to any lessee, licensee,
employee or stranger, unless the same shall have been found by a court of
competent jurisdiction to have been due to the gross negligence or willful
misconduct of Lender.
25. DEFAULT. The following shall each constitute an event of
default ("Event of Default"):
(a) The occurrence of an "Event of Default" under the Note.
(b) Failure of Borrower within the time required by this
Instrument to make any payment for taxes, insurance or for reserves for such
payments, or any other payment necessary to prevent filing of or discharge of
any lien, and such failure shall continue for a period of ten (10) days after
written notice is given to Borrower by Lender specifying such failure.
(c) Failure by Borrower or any guarantor of the Loan to
observe or perform its obligations to Lender on or with respect to any
transactions, debts, undertakings or agreements other than the transaction
evidenced by the Note, following the giving of any notice required thereunder
and/or the expiration of any applicable period of grace provided thereby.
(d) Failure of Borrower to make any payment or perform any
obligation under any superior liens or encumbrances on the Property, within the
time required thereunder, or commencement of any suit or other action to
foreclose any superior liens or encumbrances.
(e) Failure by Borrower to observe or perform any of its
obligations under any of the Leases, following the giving of any notice required
thereunder and/or the expiration of any applicable period of grace provided
thereby.
(f) The Property is transferred or any agreement to transfer
any part or interest in the Property in any manner whatsoever is made or entered
into without the prior written consent of Lender, except as specifically allowed
under this Instrument, including without limitation creating or allowing any
liens on the Property or leasing any portion of the Property.
(g) Filing by Borrower of a voluntary petition in bankruptcy
or filing by Borrower of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief for itself under any present or future federal, state or other statute,
law or regulation relating to bankruptcy, insolvency or other relief for
debtors, or the seeking, consenting to, or acquiescing by Borrower in the
appointment of any trustee, receiver, custodian, conservator or liquidator for
Borrower, any part of the Property, or any of the Rents of the Property, or the
making by Borrower of any general assignment for the benefit of creditors, or
the inability of or failure by Borrower to pay its debts generally as they
become due, or the insolvency on a balance sheet basis or business failure of
Borrower, or the making or suffering of a preference within the meaning of
federal bankruptcy law or the making of a fraudulent transfer under applicable
federal or state law, or concealment by Borrower of any of its property in fraud
of creditors, or the imposition of a lien upon any of the property of Borrower
which is not discharged in the manner permitted by Section 4 of this Instrument,
or the giving of notice by Borrower to any governmental body of insolvency or
suspension of operations.
(h) Filing of a petition against Borrower seeking any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief under any present or future federal, state or other law or regulation
relating to bankruptcy, insolvency or other relief for debts, or the appointment
of any
16
trustee, receiver, custodian, conservator or liquidator of Borrower, of any part
of the Property or of any of the Rents of the Property, unless such petition
shall be dismissed within sixty (60) days after such filing, but in any event
prior to the entry of an order, judgment or decree approving such petition.
(i) The institution of any proceeding for the dissolution or
termination of Borrower voluntarily, involuntarily, or by operation of law,
unless such proceeding shall be dismissed within sixty (60) days after such
filing, but in any event prior to the entry of an order, judgment or decree for
relief, or the death or incompetence of Borrower.
(j) A material adverse change occurs in the assets,
liabilities or net worth of Borrower from the assets, liabilities or net worth
of Borrower previously disclosed to Lender.
(k) Any warranty, representation or statement furnished to
Lender by or on behalf of Borrower under the Note, this Instrument, any of the
other Loan Documents or the Indemnity, shall prove to have been false or
misleading in any material respect when made.
(l) Failure of Borrower to observe or perform any other
covenant or condition contained herein and such default shall continue for
thirty (30) days after notice is given to Borrower specifying the nature of the
failure, or if the default cannot be cured within such applicable cure period,
Borrower fails within such time to commence and pursue curative action with
reasonable diligence or fails at any time after expiration of such applicable
cure period to continue with reasonable diligence all necessary curative
actions; provided, however, that no notice of default and no opportunity to cure
shall be required with respect to defaults under Section 17 hereof or if during
the prior twelve (12) months Lender has already sent more than one (1) notice to
Borrower concerning default in performance of the same obligation.
(m) Failure of Borrower to observe or perform any other
obligation under any other Loan Document or the Indemnity when such observance
or performance is due, and such failure shall continue beyond the applicable
cure period set forth in such Loan Document, or if the default cannot be cured
within such applicable cure period, Borrower fails within such time to commence
and pursue curative action with reasonable diligence or fails at any time after
expiration of such applicable cure period to continue with reasonable diligence
all necessary curative actions. No notice of default and no opportunity to cure
shall be required if during the prior twelve (12) months Lender has already sent
more than one (1) notice to Borrower concerning default in performance of the
same obligation.
(n) Borrower's abandonment of the Property.
(o) Any of the events specified in (g) - (j) above shall occur
with respect to any tenant of the Property, with respect to any guarantor of any
of Borrower's obligations in connection with the Indebtedness or with respect to
any guarantor of any tenant's obligations relating to the Property, or such
guarantor dies or is declared legally incompetent.
26. RIGHTS AND REMEDIES ON DEFAULT.
26.1. Remedies. Upon the occurrence of any Event of Default
and at any time thereafter, Trustee or Lender may exercise any one or more of
the following rights and remedies:
(a) Lender may declare all sums secured by this Instrument
immediately due and payable, including any Prepayment Fee which Borrower would
be required to pay.
(b) The Trustee shall have the right to foreclose by notice
and sale, or Lender shall have the right to foreclose by judicial foreclosure,
in either case in accordance with applicable law.
(c) In the event of any foreclosure, to the extent permitted
by applicable law, and subject to the limitations on recourse set forth in the
Note Lender will be entitled to a judgment which will
17
provide that if the foreclosure sale proceeds are insufficient to satisfy the
judgment, execution may issue for any amount by which the unpaid balance of the
obligations secured by this Instrument exceeds the net sale proceeds payable to
Lender.
(d) With respect to all or any part of the Property that
constitutes personal property, Lender shall have all rights and remedies of
secured party under the Uniform Commercial Code.
(e) Lender shall have the right to have a receiver appointed
to take possession of any or all of the Property, with the power to protect and
preserve the Property, to operate the Property preceding foreclosure or sale, to
collect all the Rents from the Property and apply the proceeds, over and above
cost of the receivership, against the sums due under this Instrument, and to
exercise all of the rights with respect to the Property described in Section 24
above. The receiver may serve without bond if permitted by law. Lender's right
to the appointment of a receiver shall exist whether or not apparent value of
the Property exceeds the sums due under this Instrument by a substantial amount.
Employment by Lender shall not disqualify a person from serving as a receiver.
(f) In the event Borrower remains in possession of the
Property after the Property is sold as provided above or Lender otherwise
becomes entitled to possession of the Property upon default of Borrower,
Borrower shall become a tenant at will of Lender or the purchaser of the
Property and shall pay a reasonable rental for use of the Property while in
Borrower's possession.
(g) Trustee and Lender shall have any other right or remedy
provided in this Instrument, the Note, or any other Loan Document or instrument
delivered by Borrower in connection therewith, or available at law, in equity or
otherwise.
(h) Lender shall have all the rights and remedies set forth in
Sections 23 and 24.
26.2. Sale of the Property. In exercising its rights and
remedies, the Trustee or Lender may, at Lender's sole discretion, cause all or
any part of the Property to be sold as a whole or in parcels, and certain
portions of the Property may be sold without selling other portions. Lender may
bid at any public sale on all or any portion of the Property.
(a) If Lender shall elect to foreclose under the power of sale
herein granted, Trustee shall, after advertising time, place and terms of sale
for twenty-one (21) days, by publication once a week for three successive weeks
in a daily newspaper published in Davidson County, Tennessee, sell the Property
at public outcry, for cash, execute proper conveyances to the purchasers, and
apply the proceeds, first, to the payment of necessary expenses of executing
this trust, next, to the payment of the said Indebtedness, and pay the balance,
if any, to Borrower or its representatives or assigns. The oath and bond of
Trustee are expressly waived, and in case of sale hereunder, Borrower hereby
expressly waives the equity of redemption, statutory right of redemption, dower
and homestead and all other rights and exemptions of every kind in and to the
Property, and agrees that the purchaser at such sale shall have an absolute
title to the Property in fee simple.
(b) If at the time of the sale the said Trustee, or the one
acting, shall deem it best for any reason to postpone or continue said sale for
one or more days, they or he may do so, in which event notice of such
postponement or continuance shall be made in such manner as the Trustee, or the
one acting, may deem sufficient under the laws of the State of Tennessee.
(c) At any such public sale, Trustee may execute and deliver
to the purchaser a conveyance of the Property or any part of the Property in fee
simple with special warranty and, to this end, Borrower hereby constitutes and
appoints Trustee the agent and attorney-in-fact of Borrower to make such sale
and conveyance, and thereby to divest Borrower of all right, title or equity
that Borrower may have in and to the Property and to vest the same in the
purchaser or purchasers at such sale or sales. Said appointment is coupled with
an interest and shall be irrevocable.
18
(d) Upon any public sale pursuant to the aforementioned power
of sale and agency, the proceeds of said sale shall be applied as provided by
law. In the event that such proceeds are insufficient to pay all costs and
expenses of sale, Lender may advance such sums as it in its sole and absolute
discretion shall determine for the purpose of paying all or any part of such
costs and expenses, and all such sums shall be a part of the Indebtedness,
payable on demand with interest at the default rate provided in the Note.
Borrower shall remain liable for any deficiency resulting if the proceeds of
sale are inadequate to repay the Indebtedness, subject, however, to the
limitations on recourse set forth in the Note.
26.3 Notice of Sale. Lender shall give Borrower reasonable
notice of the time and place of any public sale of any personal property or of
the time after which any private sale or other intended disposition of the
personal property is to be made. Reasonable notice shall mean notice given in
accordance with applicable law, including notices given in the manner and at the
times required for notices in a nonjudicial foreclosure.
26.4 Waiver; Election of Remedies. A waiver by either party of
a breach of a provision of this Instrument shall not constitute a waiver of or
prejudice the party's right otherwise to demand strict compliance with that
provision or any other provision. Election by Lender to pursue any remedy shall
not exclude pursuit of any other remedy, and all remedies of Lender under this
Instrument are cumulative and not exclusive. An election to make expenditures or
take action to perform an obligation of Borrower shall not affect Lender's right
to declare a default and exercise its remedies under this Instrument.
27. RECONVEYANCE. Upon payment of all sums secured by this
Instrument, Lender shall request Trustee to reconvey the Property and shall
surrender this Instrument and all notes evidencing Indebtedness secured by this
Instrument to Trustee. Trustee shall reconvey the Property without warranty to
the person or persons legally entitled thereto. Such person or persons shall pay
Trustee's costs incurred in so reconveying the Property.
28. PROVISIONS REGARDING TRUSTEE. Trustee shall not be liable
for any error of judgment or act done by Trustee, or be otherwise responsible or
accountable under any circumstances whatsoever. Trustee shall not be personally
liable in case of entry by it or anyone acting by virtue of the powers herein
granted it upon the Property for debts contracted or liability or damages
incurred in the management or operation of the Property. All monies 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 in any
manner from any other monies (except to the extent required by law) and Trustee
shall be under no liability for interest on any monies received by it hereunder.
Trustee may resign by giving of notice of such resignation in
writing to Lender. If Trustee shall die, resign or become disqualified from
acting, or shall fail or refuse to exercise its powers hereunder when requested
by Lender so to do, or if for any reason and without cause Lender shall prefer
to appoint a substitute trustee to act instead of the original Trustee named
herein, or any prior successor or substitute trustee, Lender shall have full
power to appoint a substitute trustee and, if preferred, several substitute
trustees in succession who shall succeed to all the estate, rights, powers and
duties of the aforenamed Trustee. Upon appointment by Lender and upon recording
of the substitution in the land records of Davidson County, Tennessee, any new
Trustee appointed pursuant to any of the provisions hereof shall, without any
further act, deed or conveyance, become vested with all the estates, properties,
rights, powers and trusts of its predecessor in the rights hereunder with the
same effect as if originally named as Trustee herein.
29. USE OF PROPERTY. The Property is not currently used for
residential, agricultural, farming, timber or grazing purposes. Borrower
warrants that this Instrument is and will at all times constitute a commercial
trust deed, as defined under appropriate state law.
30. FUTURE ADVANCES. Upon request of Borrower, Lender, at
Lender's option so long as this Instrument secures Indebtedness held by Lender,
may make Future Advances to Borrower.
19
Such Future Advances, with interest thereon, shall be secured by this Instrument
when evidenced by promissory notes stating that said notes are secured hereby.
31. IMPOSITION OF TAX BY STATE.
31.1 State Taxes Covered. The following constitute state taxes
to which this Section applies:
(a) A specific tax upon trust deeds or upon all or any part of
the indebtedness secured by a trust deed.
(b) A specific tax on a grantor which the taxpayer is
authorized or required to deduct from payments on the indebtedness secured by a
trust deed.
(c) A tax on a trust deed chargeable against the beneficiary
or the holder of the note secured.
(d) A specific tax on all or any portion of the indebtedness
or on payments of principal and interest made by a grantor.
31.2. Remedies. If any state tax to which this Section applies
is enacted subsequent to the date of this Instrument, this shall have the same
effect as an Event of Default, and Lender may exercise any or all of the
remedies available to it unless the following conditions are met:
(a) Borrower may lawfully pay the tax or charge imposed by
state tax; and
(b) Borrower pays the tax or charge within thirty (30) days
after notice from Lender that the tax has been levied.
32. ATTORNEYS' FEES. In the event suit or action is instituted
to enforce or interpret any of the terms of this Instrument (including without
limitation efforts to modify or vacate any automatic stay or injunction), the
prevailing party shall be entitled to recover all expenses reasonably incurred
at, before and after trial and on appeal whether or not taxable as costs, or in
any bankruptcy proceeding including, without limitation, attorneys' fees,
witness fees (expert and otherwise), deposition costs, copying charges and other
expenses. Whether or not any court action is involved, all reasonable expenses,
including but not limited to the costs of searching records, obtaining title
reports, surveyor reports, title insurance, trustee fees, and other attorney
fees, incurred by Lender that are necessary at any time in Lender's opinion for
the protection of its interest or enforcement of its rights shall become a part
of the Indebtedness payable on demand and shall bear interest from the date of
expenditure until repaid at the interest rate as provided in the Note. The term
"attorneys' fees" as used in the Loan Documents shall be deemed to mean such
fees as are reasonable and are actually incurred.
33. GOVERNING LAW; SEVERABILITY. This Instrument shall be
governed by the law of the State of Tennssee applicable to contracts made and to
be performed therein (excluding choice-of-law principles). In the event that any
provision or clause of this Instrument or the Note conflicts with applicable
law, such conflict shall not affect other provisions of this Instrument or the
Note which can be given effect without the conflicting provision, and to this
end the provisions of this Instrument and the Note are declared to be severable.
34. TIME OF ESSENCE. Time is of the essence of this
Instrument.
35. CHANGES IN WRITING. This Instrument and any of its terms
may only be changed, waived, discharged or terminated by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. Any agreement subsequently
20
made by Borrower or Lender relating to this Instrument shall be superior to the
rights of the holder of any intervening lien or encumbrance.
36. NO OFFSET. Borrower's obligation to make payments and
perform all obligations, covenants and warranties under this Instrument and
under the Note shall be absolute and unconditional and shall not be affected by
any circumstance, including without limitation any setoff, counterclaim,
abatement, suspension, recoupment, deduction, defense or other right that
Borrower or any guarantor may have or claim against Lender or any entity
participating in making the loan secured hereby. The foregoing provisions of
this section, however, do not constitute a waiver of any claim or demand which
Borrower or any guarantor may have in damages or otherwise against Lender or any
other person, or preclude Borrower from maintaining a separate action thereon;
provided, however, that Borrower waives any right it may have at law or in
equity to consolidate such separate action with any action or proceeding brought
by Lender.
37. WAIVER OF JURY TRIAL. THE BORROWER AND LENDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVES ANY AND ALL RIGHTS THAT EACH
PARTY TO THIS INSTRUMENT MAY NOW OR HEREAFTER HAVE UNDER THE LAWS OF THE UNITED
STATES OF AMERICA OR THE STATE OF TENNESSEE, TO A TRIAL BY JURY OF ANY AND ALL
ISSUES ARISING DIRECTLY OR INDIRECTLY IN ANY ACTION OR PROCEEDING RELATING TO
THIS INSTRUMENT, THE LOAN DOCUMENTS OR ANY TRANSACTIONS CONTEMPLATED THEREBY OR
RELATED THERETO. IT IS INTENDED THAT THIS WAIVER SHALL APPLY TO ANY AND ALL
DEFENSES, RIGHTS, CLAIMS AND/OR COUNTERCLAIMS IN ANY SUCH ACTION OR PROCEEDING.
BORROWER UNDERSTANDS THAT THIS WAIVER IS A WAIVER OF A CONSTITUTIONAL SAFEGUARD,
AND EACH PARTY INDIVIDUALLY BELIEVES THAT THERE ARE SUFFICIENT ALTERNATE
PROCEDURAL AND SUBSTANTIVE SAFEGUARDS, INCLUDING, A TRIAL BY AN IMPARTIAL JUDGE,
THAT ADEQUATELY OFFSET THE WAIVER CONTAINED HEREIN.
38. MAXIMUM INTEREST CHARGES. Notwithstanding anything
contained herein or in any of the Loan Documents to the contrary, in no event
shall Lender be entitled to receive interest on the loan secured by this
Instrument (the "Loan") in amounts which, when added to all of the other
interest charged, paid to or received by Lender on the Loan, causes the rate of
interest on the Loan to exceed the highest lawful rate. Borrower and Lender
intend to comply with the applicable law governing the highest lawful rate and
the maximum amount of interest payable on or in connection with the Loan. If the
applicable law is ever judicially interpreted so as to render usurious any
amount called for under the Loan Documents, or contracted for, charged, taken,
reserved or received with respect to the Loan, or if acceleration of the final
maturity date of the Loan or if any prepayment by Borrower results in Borrower
having paid or demand having been made on Borrower to pay, any interest in
excess of the amount permitted by applicable law, then all excess amounts
theretofore collected by Lender shall be credited on the principal balance of
the Note (or, if the Note has been or would thereby be paid in full, such excess
amounts shall be refunded to Borrower), and the provisions of the Note, this
Instrument and any demand on Borrower shall immediately be deemed reformed and
the amounts thereafter collectible thereunder and hereunder shall be reduced,
without the necessity of the execution of any new document, so as to comply with
the applicable law, but so as to permit the recovery of the fullest amount
otherwise called for thereunder and hereunder. The right to accelerate the final
maturity date of the Loan does not include the right to accelerate any interest
which has not otherwise accrued on the date of such acceleration, and Lender
does not intend to collect any unearned interest in the event of acceleration.
All sums paid or agreed to be paid to Lender for the use, forbearance or
detention of the Loan shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread through the full term of the Loan
until payment in full so that the rate or amount of interest on account of the
Loan does not exceed the applicable usury ceiling. By execution of this
Instrument, Borrower acknowledges that it believes the Loan to be nonusurious
and agrees that if, at any time, Borrower should have reason to believe that the
Loan is in fact usurious, it will give Lender written notice of its belief and
the reasons why Borrower believes the Loan to be usurious, and Borrower agrees
that Lender shall have ninety (90) days following
21
its receipt of such written notice in which to make appropriate refund or other
adjustment in order to correct such condition if it in fact exists.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY
BE LEGALLY ENFORCE[]. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY
BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, Borrower has executed this Instrument or
has caused the same to be executed under seal by its representatives thereunto
duly authorized.
BORROWER:
WESTERN EXPRESS, INC.,
a Tennessee corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx, Xx.,
Chief Financial Officer
[SEAL]
EXHIBITS:
Exhibit A - Description of Property
Schedule 1 - Permitted Exceptions
22
