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EXHIBIT 10(K)(4)(B)(I)
THIS INSTRUMENT PREPARED BY
AND RECORD AND RETURN TO:
XXXX X. XXXXXXXX, XX., ESQ.
LEBOEUF, LAMB, XXXXXX & XXXXXX, L.L.P.
00 XXXXX XXXXX XXXXXX, XXXXX 0000
XXXXXXXXXXXX, XX 00000-0000
DEED TO SECURE DEBT, ASSIGNMENT OF
LEASES AND RENTS, AND SECURITY AGREEMENT
from
XXXXX EQUITY, INC.
to
FIRST UNION NATIONAL BANK,
as Agent
Dated as of December 30, 1998
State: Georgia
Section:
Township:
Range:
County: Gwinnett
Tax I.D.:
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NOTE TO TAX COMMISSIONER: THIS INSTRUMENT SECURES A NOTE CONTAINING A MATURITY
DATE THREE (3) YEARS FROM THE DATE THEREOF AND, THEREFORE, SUCH NOTE IS A
"SHORT-TERM NOTE SECURED BY REAL ESTATE" AS SUCH TERM IS DEFINED IN OFFICIAL
CODE OF GEORGIA ANNOTATED SECTION 48-6-60. CONSEQUENTLY, NO INTANGIBLES TAX IS
DUE UPON THE RECORDATION OF THIS INSTRUMENT. SEE OFFICIAL CODE OF GEORGIA
ANNOTATED SECTION 48-6-61.
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DEED TO SECURE DEBT, ASSIGNMENT OF
LEASES AND RENTS, AND SECURITY AGREEMENT
THIS DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND RENTS, AND
SECURITY AGREEMENT (this "Indenture"), dated as of December 30, 1998, from
XXXXX EQUITY, INC., a Florida corporation ("Grantor"), whose mailing address is
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention:
X.X. Xxxxxx, President,
to
FIRST UNION NATIONAL BANK, a national association, as Agent ("Grantee") for the
Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement of even date herewith (the "Loan Agreement").
For purposes of notices permitted or required to be given hereunder, Grantee's
mailing address is 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: First Union Capital Markets Group.
Capitalized terms not otherwise defined herein are defined in Article I.
WITNESSETH:
THIS INDENTURE WITNESSETH, that to secure (A) the payment, performance
and observance of all obligations of Grantor and all indebtedness heretofore or
hereafter from time to time advanced under the Loan Agreement and the payment of
any and all other indebtedness which this Indenture by its terms secures
including, without limitation, the payment of principal and interest on the
Notes which shall (1) be payable to the Lenders, (2) be payable in full not
later than December 30, 2001, and (3) bear interest at a floating rate as set
forth in Section 2.6 of the Loan Agreement; provided, that the maximum aggregate
principal amount of indebtedness secured hereby, other than for advances made
pursuant to Article XXII, Paragraph 22 hereof, shall in no event exceed
$150,000,000.00 (the "Indebtedness") and (B) the performance of the covenants
and agreements contained herein and in the Loan Agreement, and in consideration
of the aforesaid Indebtedness, Grantor hereby irrevocably grants, bargains and
sells, conveys, transfers, assigns, sets over, alienates, hypothecates and
pledges to Grantee and its successors and assigns in and to all of the following
property and rights whether now owned or hereafter acquired by Grantor
(collectively, the "Property"):
(i) the Land;
(ii) all buildings, structures and other improvements
presently situated or hereafter constructed on the Land (collectively, the
"Improvements");
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(iii) all rights, privileges, tenements, hereditaments,
rights of way, easements, rights and appurtenances belonging to or in any way
relating to either the Land or the Improvements;
(iv) all fixtures, machinery, equipment and other personal
property of all types owned by Grantor now or hereafter affixed to and used in
connection with the operation of the Land and Improvements, together with all
additions and accessions thereto, substitutions therefor and replacements
(collectively, the "Fixtures");
(v) all awards or payments, including interest thereon,
which may heretofore and hereafter be made with respect to the Land, the
Improvements or the Fixtures, whether from the exercise of the right of eminent
domain (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of said right), or for a change of grade of any
street, or for any other injury to or decrease in the value of Grantor's rights,
title or interest in and to the Land, the Improvements or the Fixtures;
(vi) all leases and other agreements affecting the use,
enjoyment or occupancy of the Land, the Improvements or the Fixtures now or
hereafter entered into (the "Leases") and rents, revenues, issues and profits
from the Land, the Improvements or the Fixtures (the "Rents") and all proceeds
from the sale or other disposition of the Leases and the right to receive and
apply the Rents to the payment of the Indebtedness;
(vii) all proceeds of and any unearned premiums on any
insurance policies covering the Land, the Improvements or the Fixtures,
including, without limitation, the right to receive and apply the proceeds of
any insurance, judgments, or settlements made in lieu thereof, for damage to the
Land, the Improvements or the Fixtures; and
(viii) the right, in the name and on behalf of Grantor, to
appear in and defend any action or proceeding brought with respect to Grantor's
right, title or interest in and to the Land, the Improvements or the Fixtures
and to commence any action or proceeding to protect the interest of Grantee in
the Land, the Improvements or the Fixtures;
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, for the use, benefit and behoof of Grantee, IN FEE SIMPLE
forever.
PROVIDED ALWAYS, this Indenture is intended to operate and is to be
construed as a deed passing title to the Property to Grantee and is made under
those provisions of the existing laws of the State of Georgia relating to deeds
to secure debt, and not as a mortgage, and is given to secure the payment of the
Indebtedness. Should the Indebtedness be paid according to the tenor and effect
thereof when the same shall become due and payable, and should Grantor perform
all covenants herein in a timely manner, then this Indenture shall be cancelled
and surrendered by Grantee.
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IN FURTHERANCE OF THE FOREGOING GRANTS (INCLUDING GRANTS OF SECURITY
INTERESTS), BARGAINS, SALES, ALIENATIONS, CONVEYANCES, CONFIRMATIONS, PLEDGES,
TRANSFERS AND ASSIGNMENTS, AND TO PROTECT THE PROPERTY AND THE SECURITY GRANTED
BY THIS INDENTURE, GRANTOR, FOR ITSELF AND FOR ITS SUCCESSORS AND ASSIGNS,
HEREBY WARRANTS, REPRESENTS, COVENANTS AND AGREES AS FOLLOWS:
ARTICLE I
1. Definitions. As used in this Indenture, the following capitalized
terms have the respective meanings set after them, such definitions to be
applicable equally to the singular and plural forms of such terms:
"AmSouth" shall mean AmSouth Bank, a state banking corporation.
"Citizens" shall mean Citizens Bank of Rhode Island, a Rhode Island
financial institution.
"Compass" shall mean Compass Bank, an Alabama banking corporation.
"Default" shall mean any condition or event which constitutes or which
would constitute an Event of Default either with or without notice or lapse of
time, or both.
"Default Rate" shall have the meaning assigned to such term in the Loan
Agreement.
"Event of Default" shall have the meaning assigned to such term in
Article V of this Indenture.
"FUNB" shall mean First Union National Bank, a national association.
"Fixtures" shall have the meaning assigned to such term in clause (iv)
of the Granting Clause of this Indenture.
"GFB" shall mean Guaranty Federal Bank, F.S.B., a federal savings bank.
"Governmental Requirements" shall have the meaning assigned to such
term in the Loan Agreement.
"Grantee" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Grantor" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
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"Impositions" shall mean, collectively, all taxes of every kind and
nature (including real and personal property, income withholding, profits and
gross receipts taxes), all charges for any easement or agreement maintained for
the benefit of any of the Property, all general and special assessments, levies,
permits, inspection and license fees, all water and sewer rents and other
utility charges, all ground rents, and all other public charges whether of a
like or different nature, even if unforeseen or extraordinary, imposed upon or
assessed against Grantor, Grantee or any portion of the Property as a result of
or arising in respect of the acquisition, occupancy, leasing, use or possession
thereof, or any activity conducted on the Property (including, without
limitation, any gross income tax, sales tax or excise tax levied by any
governmental body on or with respect to the Rents).
"Improvements" shall have the meaning assigned to such term in clause
(ii) of the Granting Clause of this Indenture.
"Indebtedness" shall have the meaning assigned to such term in the
Granting Clause of this Indenture.
"Indenture" shall mean this Deed to Secure Debt, Assignment of Leases
and Rents, and Security Agreement.
"Land" shall mean those certain parcels of real property located in the
County of Gwinnett, State of Georgia, as more particularly described on Exhibit
A attached hereto and incorporated herein.
"Leases" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"Lenders" shall mean FUNB, AmSouth, GFB, Citizens, Compass, and any
other Lenders from time to time under the Loan Agreement.
"Loan Agreement" shall mean that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of December 30, 1998 between Grantor
and Grantee.
"Loan Documents" shall mean this Indenture, the Loan Agreement, the
Notes, the Security Deeds, the Lease Assignments, the Assignments of Contracts,
the Indemnification Agreement, and any other instrument, document, affidavits,
or certificates given by Grantor to the Grantee or any trustee for the benefit
of the Lenders in support of, or evidencing or securing, the Loan.
"Notes" shall mean collectively (i) the Substitution Revolving
Promissory Note dated as of even date herewith made by Grantor payable to the
order of FUNB in the original principal amount of $45,000,000, (ii) the
Substitution Revolving Promissory Note dated as of even date herewith made by
Grantor payable to the order of AmSouth in the original principal amount of
$35,000,000, (iii) the Substitution Revolving Promissory Note dated as
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of even date herewith made by Grantor payable to the order of GFB in the
original principal amount of $35,000,000, (iv) the Revolving Promissory Note
dated as of even date herewith made by Grantor payable to the order of Citizens
in the original principal amount of $20,000,000, and (v) the Revolving
Promissory Note dated as of even date herewith made by Grantor payable to the
order of Compass in the original principal amount of $15,000,000.
"Other Indenture" shall mean any mortgage, deed to secure debt, or deed
of trust given by Grantor to or in favor of Grantee to secure the Indebtedness,
other than this Indenture.
"Permitted Encumbrances" shall mean those covenants, restrictions,
reservations, liens, conditions and easements listed as exceptions to title as
set forth on Exhibit B attached hereto and incorporated herein.
"Person" shall mean any corporation, natural person, joint venture,
partnership, business trust, joint stock company, trust, unincorporated
organization, government or any department, agency or political subdivision
thereof.
"Property" shall have the meaning assigned to such term in the Granting
Clause of this Indenture.
"Rents" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"State" shall mean the State of Georgia.
"Taking" shall mean a taking or voluntary conveyance during the term
hereof of all or part of the Property, or any interest therein or right accruing
thereto or use thereof, as the result of or in lieu or in anticipation of the
exercise of the right of condemnation or eminent domain.
ARTICLE II
2. Representations and Warranties. Grantor represents and warrants to
Grantee that (a) it has full power, authority and legal right to execute and
deliver this Indenture and to grant a first deed to secure debt of the Property,
(b) it holds good and marketable fee simple title to the Land and good and
marketable title to the balance of the Property, (c) this Indenture constitutes
a valid first deed to secure debt of the Property, subject to the Permitted
Encumbrances, and (d) the Leases are in full force and effect in accordance with
their respective terms, have not been canceled or modified, and have not been
assigned or encumbered except to Grantee pursuant to this Indenture and the Loan
Agreement, and, to the best of Grantor's knowledge, no default exists under the
Leases. Grantor, at its expense, will warrant to Grantee and will defend its
title to the Property and the estate created by this Indenture against all
claims and demands, and will maintain and
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preserve such estate so long as the Indebtedness secured by this Indenture
remains outstanding, subject, however, to the Permitted Encumbrances.
ARTICLE III
3. Affirmative Covenants. Until this Indenture and the estate created
hereby shall terminate in accordance with Article XVII, Grantor shall comply
with the following covenants:
(a) Recordation, Filing, Etc. At all times cause this Indenture and
each amendment or modification hereof or supplement hereto (and such financing
statements covering the Property under the Uniform Commercial Code as in effect
in the State as may be necessary or appropriate) to be recorded, registered and
filed and kept recorded, registered and filed in such manner and in such places
as appropriate, and comply with all applicable statutes and regulations, in
order to establish, preserve and protect the estate created hereby and the
rights of Grantee hereunder. Grantor shall pay, or shall cause to be paid, all
taxes, fees and other charges incurred in connection with such recording,
registration, filing and compliance.
(b) Maintenance and Repairs. Keep and maintain the Property in good
order, repair and operating condition (ordinary wear and tear excepted) and make
all repairs and replacements necessary to that end.
(c) Payment of Impositions and Utility Charges. Pay all Impositions
while the same may be paid without fine, penalty, interest or additional cost,
unless the same shall be contested in good faith and by appropriate proceedings
by Grantor in the manner permitted by the Loan Agreement. Any Impositions which
are payable in installments may be paid in installments provided that Grantee is
otherwise in compliance with the Loan Agreement. Upon the written request of
Grantee from time to time, Grantor will furnish to Grantee official receipts or
other satisfactory proof evidencing such payments. In addition, Grantor will pay
all utility charges as required by the Loan Agreement. Grantor shall not be
entitled to any credit on the Indebtedness, by reason of the payment of any
Imposition or utility charges or any part thereof.
(d) Compliance with Governmental Requirements. Promptly (i) comply with
all Governmental Requirements unless the same shall be contested in good faith
and by appropriate proceedings by Grantor in the manner permitted by the Loan
Agreement, and (ii) procure, maintain and comply with all licenses or other
authorizations required for any use of the Property then being made, and for the
proper erection, installation, operation, repair and maintenance of the
Improvements and the Fixtures, or any part of either thereof.
(e) Insurance. Maintain insurance of the types and in the amounts
required by, and otherwise complying with the Loan Agreement and promptly
deliver, or cause to be promptly delivered, to Grantee any certificates or
evidence of such insurance as required under the Loan Agreement.
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(f) Damage, Destruction or Taking. In the event of any damage,
destruction or Taking affecting all or any portion of the Property, Grantor
shall give immediate written and oral notice thereof to Grantee and proceed in
accordance with the terms of the Loan Agreement. In case of any such material
damage, destruction or Taking, Grantee shall be entitled to hold all insurance
proceeds, payments or awards on account thereof, to the same extent Grantor
would be entitled thereto under the Loan Agreement, and Grantor hereby
irrevocably assigns to Grantee all of its rights to any such insurance proceeds,
payments or awards. With respect to a Taking, and in accordance with its
obligations under the Loan Agreement, Grantor will file or prosecute or will
cause to be filed or prosecuted in good faith and with due diligence what would
otherwise be its claim for any such award or payment and cause the same to be
collected and paid over to Grantee. At the sole cost and expense of Grantor,
Grantee may elect to monitor or participate in, and if reasonably necessary, may
hire independent legal counsel to represent Grantee in connection with, any
claim or the claims payment process. Grantor will pay or cause to be paid all
costs and expenses reasonably incurred in connection with any Taking and the
seeking and obtaining of any award or payment in respect thereof. Unless an
Event of Default shall have occurred under the Loan Agreement, all sums so
received by Grantee shall be applied in accordance with the provisions of the
Loan Agreement.
(g) Notification of Default, Etc. Promptly after obtaining knowledge
thereof, notify Grantee of any Default hereunder or under the Loan Agreement or
of any action or proceeding materially and adversely affecting the Property.
(h) Corporate Existence. Preserve and keep in full force and effect its
corporate existence, rights and franchises and privileges as a corporation under
the laws of the State of Georgia and comply with all laws applicable to it, and
do or cause to be done all things necessary to preserve and to keep in full
force and effect its right to own property in the State of Georgia.
(i) Inspection. Permit the Beneficiary or its authorized
representatives to inspect the Property during usual business hours.
ARTICLE IV
4. Negative Covenants. Without the prior written consent of Grantee,
Grantor will not directly or indirectly create or permit to be created or to
remain and will discharge or will cause to be discharged any mortgage, charge,
lien or encumbrance on, or attachment or pledge of, or conditional sale or other
title retention agreement with respect to, the Property or any part thereof, its
interest or the interests of Grantee therein, or the Rents or other sums payable
pursuant to the Leases, except (i) this Indenture, (ii) the Permitted
Encumbrances, (iii) easements, restrictions, liens, charges and other
encumbrances permitted by the Loan Agreement, (iv) liens being contested in good
faith and by appropriate proceedings in the manner permitted by the Loan
Agreement, and (v) liens arising out of or created by any statute, the discharge
of which cannot under the terms of such statute at the particular time be
effected by Grantor; provided, however, that
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any such statutory liens will promptly be discharged as and when such discharge
is possible or permissible. Grantor shall have the right to grant, without the
prior consent of Grantee, any utility easement.
ARTICLE V
5. Events of Default. Any of the following events (each a "Default")
shall, following the passage of any grace or cure period as provided below,
constitute an Event of Default ("Event of Default"):
(a) Grantor shall fail to make any payment of principal under any of
the Notes on or before the same becomes due and payable on maturity thereof; or
Grantor shall fail to make any payment of interest under any of the Notes, or
any fees, costs or expenses due hereunder or thereunder, within 5 days after the
same becomes due and payable.
(b) Any representation or warranty made by Grantor (or any of its
officers) under or in connection with any Loan Document shall be or become
incorrect or untrue, or shall prove to have been incorrect or misleading in any
material respect when made.
(c) Grantor shall fail to perform or observe any term, covenant or
agreement (other than a covenant of payment) contained in any Loan Document on
its part to be performed or observed, and such failure shall remain uncured for
10 days after written notice thereof shall have been given by Grantee to
Grantor, or if such failure cannot by its nature be cured within such 10 day
period, Grantor shall fail to commence and diligently pursue such cure within 10
days after written notice thereof shall have been given by Grantee to Grantor
and shall fail to complete such cure within 60 days after Grantee's initial
written notice of such failure.
(d) An involuntary case or proceeding under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect shall be commenced
against Grantor, and such case or proceeding shall not be dismissed in 60 days;
or a court shall enter a decree, or a court or regulatory authority having
jurisdiction over Grantor shall enter an order, appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator, conservator, supervisor,
rehabilitator (or similar official) of Grantor or for any substantial part of
its property, or ordering the winding-up, supervision or liquidation of its
affairs.
(e) Grantor shall commence a voluntary case or proceeding under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
or proceeding under any such law, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator, supervisor, rehabilitator (or other similar official)
of Grantor or for any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall fail generally to pay
its indebtedness generally as the same becomes due, or shall take any corporate
action in furtherance of any of the foregoing.
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(f) A judgment or order for the payment of money in excess of
$2,500,000 shall be rendered against Grantor and either (A) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (B) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
(g) A Default has occurred and is continuing beyond any applicable
grace or cure period under any Debt (other than the Loan) in excess of
$2,500,000.
(h) Any material provision of the Loan Documents relating to Grantee's
ability to realize on the Collateral following an Event of Default shall for any
reason cease to be valid and binding on Grantor, or Grantor shall so state in
writing.
(i) The Security Agreement shall, as a result of Grantor's acts or
omissions, for any reason, except to the extent permitted by the terms thereof,
cease to create a valid and, upon filing of UCC-1 financing statement(s), UCC-2
Notice Filings, or UCC-3 continuation statements, as applicable, perfected first
priority security interest in any of the Collateral purported to be covered,
which can be so secured or perfected.
ARTICLE VI
6. Remedies in Case of Event of Default.
6.1. Legal Proceedings and Foreclosure. If an Event of Default shall
have occurred, Grantee may proceed by suit or suits at law or in equity or by
any other appropriate remedy to protect and enforce its rights hereunder,
whether for the specific performance of any covenant or agreement contained
herein, or for an injunction against the violation of any of the terms hereof,
or in aid of the exercise of any right, power or remedy available to it, or to
enforce the payment of the Indebtedness under the Loan Agreement, or to
foreclose the estate created by this Indenture and the security interest of this
Indenture as against all or any part of the Property and to have all or any part
of the Property sold, in any manner permitted by law, under the judgment or
decree of a court or courts of competent jurisdiction, or otherwise, and to
pursue any other remedy available to it. If Grantee proceeds to foreclose the
estate created hereby, Grantee shall have the statutory power of sale if
permitted by applicable law. In the event of any such suit or proceeding,
Grantee shall comply with any local laws applicable to any such suits or
proceedings. Any such suit or proceeding instituted by Grantee shall be brought
in its name as Grantee and any recovery or judgment shall be for the benefit of
Grantee. All costs and expenses (including, without limitation, reasonable
attorney's fees and expenses) incurred by Grantee in connection with any such
suit or proceeding, together with interest thereon (to the extent permitted by
law) computed at the Default Rate from the date on which such costs or expenses
are incurred to the date of payment thereof, shall constitute additional
Indebtedness secured by this Indenture and shall be paid by Grantor to Grantee,
as the case may be, on demand.
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6.2. Power of Sale. Without in any way limiting the other provisions of
this Indenture, but in addition thereto and in amplification thereof, upon the
occurrence of any Event of Default, Grantee, at its option, may sell the
Property or any part of the Property at one or more public sale or sales before
the door of the courthouse of the county in which the Property or any part of
the Property is situated, to the highest bidder for cash, in order to pay the
Indebtedness, any and all expenses of sale and of all proceedings in connection
therewith, including reasonable attorneys' fees, after advertising the time,
place and terms of sale once a week for four (4) consecutive weeks (but without
regard to the number of days) in a newspaper in which Sheriff's sales are
advertised in said county. At any such public sale, Grantee may execute and
deliver to the purchaser a conveyance of the Property or any part of the
Property in fee simple, with full general warranties of title and to this end,
Grantor hereby constitutes and appoints Grantee the agent and attorney-in-fact
of Grantor to make any such sale and conveyance and thereby to divest Grantor of
all right, title and equity that Grantor may have in and to the Property and to
vest the same in the purchaser or purchasers at such sale or sales, and all the
acts or doings of said agent and attorney-in-fact are hereby ratified and
confirmed and any recitals in said conveyance or conveyances as to facts
essential to a valid sale shall be binding upon Grantor. Grantee, its agents,
representatives, successors or assigns may bid and purchase at any such sale.
The aforesaid power of sale and agency hereby granted are coupled with an
interest and are irrevocable by death or otherwise, are granted as cumulative of
the other remedies provided hereby or by law for collection of the Indebtedness
and shall not be exhausted by one exercise thereof but may be exercised until
full payment of all of the Indebtedness. In the event of any sale under this
Indenture by virtue of the exercise of the powers herein granted, pursuant to
any order in any judicial proceeding or otherwise, the Property may be sold as
an entirety or in separate parcels and in such manner or order as Grantee in its
sole discretion may elect, and if Grantee so elects, Grantee may sell the
personal property covered by this Indenture at one or more separate sales in any
manner permitted by the Uniform Commercial Code of the State, and one or more
exercises of the powers herein granted shall not extinguish nor exhaust such
powers, until the entire Property is sold or the Indebtedness is paid in full.
If the Indebtedness is now or hereafter further secured by any chattel
mortgages, pledges, contracts of guaranty, assignments of lease or other
security instruments, Grantee may, at its option, exhaust the remedies granted
under any of said security instruments either concurrently or independently, and
in such order as Grantee may determine.
6.3. Acceleration of Maturity. If an Event of Default shall have
occurred, Grantee may declare the entire outstanding Indebtedness under the Loan
Agreement, and all other sums secured hereby, to be due and payable immediately,
and upon such declaration, such Indebtedness and other sums shall immediately
become and be due and payable without demand or notice.
6.4. Leases. Grantee is authorized to foreclose this Indenture subject
to the rights of any tenants of the Property, and the failure to make any such
tenants parties defendant to any such foreclosure proceedings and to foreclose
their rights will not be, nor be asserted by Grantor to be, a defense to any
proceedings instituted by Grantee to collect
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the sums secured hereby or to collect any deficiency remaining unpaid after the
foreclosure sale of the Property.
6.5. Suits to Protect the Property. Grantee shall have the power and
authority to institute and maintain any suits and proceedings as Grantee may
deem advisable (a) to prevent any impairment of the Property by any acts which
may be unlawful or any violation of this Indenture, (b) to preserve or protect
its interest in the Property, and (c) to restrain the enforcement of or
compliance with any legislation or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid, if the enforcement of or
compliance with such enactment, rule or order might impair the security
hereunder or be prejudicial to Grantee's interest.
6.6. Discontinuance of Proceedings; Position of Parties Restored. If
Grantee shall have proceeded to enforce any right or remedy under this Indenture
by foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, then and in every such instance,
Grantor and Grantee shall, except to the extent modified by such proceedings, be
restored to their former positions and rights hereunder, and all rights, powers
and remedies of Grantee shall continue as if no such proceeding had occurred or
had been taken.
6.7. Grantor to Pay the Indebtedness on Any Default in Payment;
Application of Monies by Grantee.
(a) If an Event of Default shall occur as a result of Grantor's failure
to pay any amount due under the Loan Agreement or this Indenture, then, upon
Grantee's demand, Grantor will pay to Grantee the whole amount due and payable
under the Loan Agreement and all other sums secured hereby. If Grantor shall
fail to pay the same forthwith upon such demand, Grantee shall be entitled to
xxx for and to recover judgment for the whole amount so due and unpaid together
with costs and expenses, including the reasonable compensation, expenses and
disbursements of Grantee's agents, attorneys and other representatives. Grantee
shall be entitled to xxx and recover judgment as aforesaid either before, after
or during the pendency of any proceedings for the enforcement of this Indenture,
and the right of Grantee to recover such judgment shall not be affected by any
taking of possession or foreclosure sale hereunder, or by the exercise of any
other right, power or remedy for the enforcement of the terms of this Indenture,
or the foreclosure of the estate created hereby.
(b) In case of a foreclosure sale of all or any part of the Property
and of the application of the proceeds of sale to the payment of the sums
secured hereby, Grantee shall be entitled to enforce payment of and to receive
all amounts then remaining due and unpaid and to recover judgment for any
portion thereof remaining unpaid, with interest.
(c) Grantor hereby agrees, to the extent permitted by law, that no
recovery of any such judgment by Grantee and no attachment or levy of any
execution upon any of the Property or any other property shall in any way affect
the estate created hereby upon the
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Property or any part thereof or any lien, rights, powers or remedies of Grantee
hereunder, but such lien, rights, powers and remedies of Grantee hereunder shall
continue unimpaired as before.
ARTICLE VII
7.1. Purchase of the Property by Grantee. Upon any foreclosure sale,
Grantee may bid for and purchase the Property, and, upon compliance with the
terms of sale, may hold, retain and possess and dispose of such Property in its
own absolute right without further accountability.
7.2. Application of Indebtedness Toward Purchase Price. If Grantee
purchases the Property pursuant to foreclosure, power of sale or otherwise, then
Grantee may, in lieu of cash, apply all or any portion of the sums due to
Grantee under the Loan Agreement and this Indenture or any other instrument
securing the Indebtedness, to the unpaid balance of the purchase price remaining
after payment of any portion of the purchase price required to be paid in cash,
and the costs and expenses of the sale, compensation and other charges relating
to the sale.
ARTICLE VIII
8. Waiver of Appraisement, Valuation, Etc. Grantor hereby waives, to
the full extent it may lawfully do so, the benefit of all appraisement,
valuation, stay, moratorium, exemption from execution, extension and redemption
laws now or hereafter in force and all rights of marshaling in the event of the
sale of the Property or any part thereof or any interest therein.
ARTICLE IX
9. Appointment of Receiver. If an Event of Default shall have occurred,
Grantee shall, as a matter of right, be entitled, ex parte and without notice,
to the appointment of a receiver or receivers of the Property or any part
thereof in accordance with Georgia Official Code ss.9-8-3 and without regard to
the value of the Property as security for the Indebtedness, or the solvency or
insolvency of any Person liable for the payment of the Indebtedness and without
necessity or requirement for posting bond, whether such receivership be
incidental to a proposed sale thereof or otherwise, and Grantor hereby consents
to the appointment of such a receiver or receivers and will not oppose any such
appointment. Any receiver which may be appointed pursuant to this paragraph,
shall have the right, but not the obligation, to take possession, manage and
operate the Property, together with such other powers conferred upon it by the
appointing court. The expenses, including receiver's fees, attorney's fees,
costs and agent's compensation, incurred pursuant to the powers herein contained
shall be secured by this Indenture.
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ARTICLE X
10. Possession, Management and Income. If an Event of Default shall
have occurred under this Indenture, Grantee, without further notice, may enter
upon and take possession of the Property or any part thereof, in any manner
permitted by law, by reasonable force, summary proceedings, ejectment or
otherwise and may remove Grantor and all other Persons and any and all property
therefrom, and Grantee may hold, operate and manage the same, make all necessary
or proper repairs, renewals, and replacements, and useful alterations,
additions, betterments and improvements thereto and thereon as may seem
advisable to either of them, and insure and reinsure the Property as may seem
advisable and to either of them, and may receive all earnings, income, rents,
issues and proceeds accruing with respect thereto. Any amounts so received by
Grantee shall be applied (a) to pay (i) the expenses of operating the Property
and of all maintenance, repairs, renewals, replacements, alterations, additions,
betterments, improvements, taxes, assessments, insurance premiums, reasonable
compensation for the services of all attorneys, advisors, brokers, receivers,
agents and other employees engaged or employed by Grantee and all other costs
and expenses of entering a bond and taking possession of and holding the
Property, and (ii) any lien prior to the estate created hereby which Grantee may
consider it necessary or desirable to discharge and then (b) in the manner
provided in Article XI of this Indenture. If an Event of Default shall have
occurred under the Loan Agreement or if the Loan Agreement shall be terminated,
all sums so received by Grantee shall be applied in the manner specified in
Article XI of this Indenture.
ARTICLE XI
11. Application of Proceeds. The proceeds of (a) the operation and
management of the Property pursuant to Article X of this Indenture, and (b) any
sale of the Property or any interest therein, shall, unless otherwise provided
in the Loan Agreement, be applied as follows:
First: to the costs and expenses of the sale, reasonable attorneys'
fees and expenses, court costs, and any other expenses or advances made or
incurred in the protection of the rights of Grantee or in the pursuance of any
remedies hereunder;
Second: to any lien prior to the estate created hereby which Grantee
may consider it necessary or desirable to discharge;
Third: to any Indebtedness secured by this Indenture and at the time
due and payable (whether by acceleration or otherwise);
Fourth: to Grantee for payment of the Notes outstanding; and
Fifth: the balance, if any, to Grantor.
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ARTICLE XII
12. Remedies, Etc., Cumulative. Each legal, equitable or contractual
right, power or remedy of Grantee now or hereafter provided herein or by statute
or otherwise shall be cumulative and concurrent and shall be in addition to
every other right, power and remedy, and the exercise or beginning of the
exercise by Grantee of any one or more of such rights, powers and remedies shall
not preclude the simultaneous or later exercise of any or all such other rights,
powers and remedies.
ARTICLE XIII
13. No Waiver, Etc. No failure by Grantee to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach hereof shall constitute a waiver of any such term or of
any such breach. No acceptance of the payment of any sums due under this
Indenture or under the Loan Agreement during the continuance of any Default
shall constitute a waiver thereof. No waiver of any breach shall affect or alter
this Indenture which shall continue in full force and effect with respect to any
other then existing or subsequent breach.
ARTICLE XIV
14. Right of Grantee to Perform Covenants, Etc. If Grantor shall fail
to make any payment or perform any act required to be made or performed
hereunder and such failure shall not be cured within the applicable grace
period, if any, Grantee, without notice to or demand upon Grantor and without
waiving or releasing any obligation or Default, may (but shall be under no
obligation to) at any time thereafter make such payment or perform such act for
the account and at the expense of Grantor and may enter upon the Property or any
part thereof for such purpose and take all such action thereon as, in the
opinion of Grantee, may be necessary or appropriate therefor. All sums so paid
by Grantee and all costs and expenses (including, without limitation, attorneys'
fees and expenses) so incurred shall constitute additional Indebtedness secured
by this Indenture and shall be paid by Grantor to Grantee on demand.
ARTICLE XV
15. Certificate as to No Default, Etc.; Information. At any time and
from time to time, Grantor will deliver to Grantee, promptly upon request, a
certificate signed by a duly authorized officer of Grantor stating that, to the
best of the signer's knowledge after making due inquiry, there is no Default
hereunder, or if any such Default exists to his knowledge, specifying the nature
and period of existence thereof and what action Grantor is taking or proposes to
take with respect thereto. Grantor will also furnish promptly to Grantee, such
information with respect to the Property and the Leases as may from time to time
be requested.
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ARTICLE XVI
16. Additional Instruments. Grantor, at its expense, will execute,
acknowledge, secure and deliver all such instruments and take all such action as
Grantee from time to time may reasonably request for the better assuring of the
Property, rights and obligations now or hereafter subjected to the security of
this Indenture or intended so to be.
ARTICLE XVII
17. Satisfaction of the Indenture. This Indenture and the estate
created hereby shall terminate after the payment in full of (a) all the
Indebtedness and (b) all other sums secured hereby. Upon such termination, and
upon surrender of this Indenture for cancellation, Grantee shall release,
without warranty, the Property then subject to the estate created hereby to the
Persons entitled thereto. The recitals in any satisfaction executed under this
Indenture of any matters of fact shall be conclusive proof of the truthfulness
thereof. The grantee in such release may be described as "the person or persons
legally entitled thereto". Grantee, at Grantor's expense, shall execute and
deliver such instruments of release, satisfaction and termination in proper form
for recording or filing, as may be appropriate to evidence the release of (a)
the Property from the estate created hereby, and (b) any other security held by
Grantee and such satisfaction and termination, and such instruments, when duly
executed, recorded and filed, shall conclusively evidence the release,
satisfaction and termination of this Indenture.
ARTICLE XVIII
18. Applicable Law; Severability.
(a) This Indenture shall be governed by and construed in accordance
with the laws of the State.
(b) All rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not violate any applicable
law, and are intended to be limited to the extent necessary so that they will
not render this Indenture invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law. If any term or provision of this
Indenture shall be held to be invalid, illegal or unenforceable, the validity of
the other terms and provisions hereof shall in no way be affected thereby.
ARTICLE XIX
19. Miscellaneous. This Indenture (a) may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought, and (b) shall be binding upon Grantor, its successors and assigns, and
all Persons claiming under or through Grantor or any such successor or assign,
and shall inure to the benefit of and be enforceable by Grantee and its
successors and assigns. The headings in this Indenture are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
agreements between Grantor and Grantee, whether now existing or hereafter
arising
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and whether written or oral, are hereby limited so that in no contingency,
whether by reason of demand or acceleration of the maturity of any payments
hereunder or under the Loan Agreement or otherwise, shall the interest
contracted for, charged, received, paid or agreed to be paid to Grantee exceed
the maximum amount permissible under applicable law. If, in any circumstance
whatsoever, interest would otherwise be payable to Grantee in excess of the
maximum lawful amount, and if in any circumstance Grantee shall ever receive
anything of value deemed interest by applicable law in excess of the maximum
lawful amount, an amount equal to any excessive interest shall be applied to the
reduction of advances under the Loan Agreement and not to the payment of
interest, or if such excessive interest exceeds the unpaid advances under the
Loan Agreement, such excess shall be refunded to Grantor. All interest paid or
agreed to be paid to Grantee shall, to the extent permitted by applicable law,
be amortized, prorated, allocated, and spread throughout the full period until
payment in full of the principal so that the interest hereon for such full
period shall not exceed the maximum amount permitted by applicable law. This
paragraph shall control all agreements between Grantor and Grantee. This
Indenture may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one and the same
instrument.
ARTICLE XX
20. Change in Method of Taxation. In the event of the passage, after
the date of this Indenture, of any law changing in any way the laws now in force
for the taxation of mortgages or debts secured thereby, for state or local
purposes, or the operation of any such taxes so as to adversely affect the
interest of Grantee in the Property, this Indenture or the Loan Agreement,
Grantor shall, upon demand, bear and pay the full amount (or any partial amount)
requested by Grantee, of taxes resulting from such changes hereunder without
offset or credit against any other sums due under the Loan Agreement or on the
Notes.
ARTICLE XXI
21. No Petition. Grantee hereby covenants and agrees that it will not
institute against, or join any Person in instituting against Grantor, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law at any time other than on a date which is at least one (1) year and
one (1) day after the payment in full of the Notes; provided, however, that
nothing in this Article shall constitute a waiver of any right to
indemnification, reimbursement or other payment from Grantor pursuant to the
Loan Agreement.
ARTICLE XXII
22. The Indenture Secures Future Advances. This Indenture is given to
secure not only the amount initially secured by this Indenture, but also such
future advances, whether such advances are obligatory or are to be made at the
option of Grantee, or otherwise, to the same extent as if such future advances
were made on the date of the
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execution of this Indenture. The total amount of Indebtedness that may be so
secured may decrease or increase from time to time, but the total unpaid balance
so secured at one time shall not exceed two (2) times the face amount of the
amount initially secured by this Indenture, plus interest thereon.
ARTICLE XXIII
23. Assignment of Leases and Rents. Grantor hereby grants, transfers
and assigns to Grantee Grantor's entire right, title and interest in and to the
Leases and Rents. This assignment of Leases and Rents by Grantor to Grantee is
intended to operate as an absolute and immediate assignment of such Leases and
Rents.
23.1. Grantor's Representations and Warranties.
(a) Grantor has good and lawful right, title, and interest in and to
the Leases, is entitled to receive the Rents from the Leases and from the
Property, has full power and authority to assign the Leases as provided herein
and to grant to and confer upon Grantee the powers, interests and authority set
forth herein, and has not assigned the Leases or Rents to any other party;
(b) Grantor has neither done any act nor omitted to do any act which
might prevent Grantee from, or limit Grantee in, acting under any of the
provisions of this assignment of Leases and Rents;
(c) All Leases provide for Rent to be paid monthly, in advance, and
Grantor has not accepted and will not accept payment of Rent for more than one
(1) month in advance; provided, however, Grantor may accept payment of Rent two
(2) months in advance if such Rent accepted two (2) months in advance does not
exceed five percent (5%) of the Rent collected during the applicable month; and
there are no agreements, understandings, or undertakings by Grantor providing
for free or reduced Rent in the past or in the future except as provided in the
Leases;
(d) Except as disclosed to Grantee in writing, Grantor is not now in
default, the nature of which could have a material adverse impact on the
financial condition of Grantor or the value of the Property, under any provision
of any of the Leases, and no tenant under any of the Leases has claimed or
asserted any defense, offset, counter-claim, or abatement of rent, and that the
Leases remain in full force and effect. Grantor further represents and warrants
that it has no knowledge of any default by any tenant under any of the Leases
that could materially adversely affect the value of the Property;
(e) This assignment of Leases and Rents, the Leases, the performance of
each and every covenant of Grantor under the Leases, and the enforcement by
Grantee of its rights hereunder does not conflict with, or will not conflict
with, and does not constitute or will not constitute a breach or default, under
any agreement, indenture or other instrument
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to which Grantor is a party, or so far as is known to Grantor, any law,
ordinance, administrative regulation or court decree which is applicable to
Grantor;
(f) No action has been brought or, so far as is known to Grantor, is
threatened, which would interfere in any way with the right of Grantor to
execute and deliver this assignment of Leases and Rents, and to perform all of
Grantor's obligations contained in this assignment of Leases and Rents and in
the Leases; and
(g) To Grantor's knowledge, the Leases are valid, enforceable and in
full force and effect.
23.2. Grantor's Covenants. Grantor hereby covenants and agrees to and
with Grantee as follows:
(a) Grantor will notify Grantee in writing (but without any right of
approval or denial on the part of Grantee) of any termination, substitution or
material modification of any Leases involving 10,000 or more Xxxxx Net Square
Feet (as defined in the Loan Agreement);
(b) Grantor hereby acknowledges that any and all Rents collected or
received by Grantor after the occurrence of an Event of Default will be the
property of Grantee, which if received and collected by Grantor, will be
considered received and collected on Grantee's behalf and as Grantee's agent,
and will be held by Grantor in trust for the benefit of Grantee, and Grantor
will deliver all such sums to Grantee immediately upon Grantor's request
therefor;
(c) In accordance with sound business judgment, Grantor will use its
reasonable best efforts, at its cost and expense, to observe, perform and
discharge, or cause to be observed, performed and discharged, all of the
obligations and undertakings of Grantor or its agents under the Leases, and will
use its best efforts, in accordance with sound business judgment, to enforce or
secure, or cause to be enforced or secured, the performance of each and every
obligation and undertaking of the respective tenants under the Leases, and will
appear in and defend, at its cost and expense, any action or proceeding arising
under or in any manner connected with the Leases or the obligations and
undertakings of any tenant thereunder. Grantor will not do or permit to be done
anything to impair the security thereof, including without limitation the
execution of any other assignment of Grantor's interest in the Leases or the
Rents, without Grantee's prior written consent;
(d) Grantor authorizes and directs each and every present and future
tenant under the Leases to pay all Rent to Grantee upon receipt of written
demand from Grantee to so pay the same, and upon paying the same, such tenants
will be relieved from all liability to Grantor for such Rent in all respects. To
the extent not so provided by applicable law, each Lease will provide that, in
the event of enforcement by Grantee of the remedies provided for by law or by
this assignment of Leases and Rents, the tenant thereunder will,
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upon request of any person succeeding to the interest of Grantor as a result of
such enforcement, automatically become the tenant of said successor in interest,
without change in the terms or other provisions of such Lease. Any such
successor in interest will not be bound by any payment of rent or additional
rent made more than one (1) month in advance;
(e) This assignment of Leases and Rents will not obligate Grantee to
take any action or to incur expenses or perform or discharge any obligation,
duty or liability of Grantor under any Lease, or for the control, care,
management, or repair of the Property; nor will it operate to make Grantee
responsible or liable for any waste committed on the Property by the tenants or
any other parties or for any dangerous or defective condition of the Property,
or for any act or omission relating to the management, upkeep, repair, or
control of the Property that results in loss or injury or death to any person.
Grantee will not be liable for any loss sustained by Grantor resulting from
Grantee's failure to lease the Property after default. Grantor will and does
hereby indemnify and agree to hold harmless Grantee from and against any and all
liability, loss, cost, damage or expense which may be incurred under the Leases
or by reason of this assignment of Leases and Rents and from any and all claims
and demands whatsoever which may be asserted against Grantee by reason of any
alleged obligations or undertakings on its part to perform or discharge any of
the terms, covenants, or agreements contained in the Leases except to the extent
the same is caused by the negligence of Grantee. Should Grantee incur any such
liability under the Leases or by reason of this assignment of Leases and Rents
or in defense of any such claims or demands, the amount thereof, including
costs, expenses, and reasonable attorneys' and paralegals' fees and costs, will
be secured hereby and Grantor will reimburse Grantee therefor immediately upon
demand and upon the failure of Grantor so to do, Grantee may, at its option,
declare all sums secured hereby immediately due and payable, or may charge the
costs thereof to Grantor as an advance under the Notes; and
(f) This assignment of Leases and Rents is made without prejudice to
any of the rights and remedies possessed by Grantee under the Loan Agreement,
and the right of Grantee to exercise its remedies under this assignment of
Leases and Rents may be exercised by Grantee either prior to, simultaneously
with, or subsequent to any action taken by it under the Loan Agreement. Each and
every right, remedy and power granted to Grantee by this assignment of Leases
and Rents will be cumulative and in addition to any other right, remedy and
power given by the Loan Agreement now or hereafter existing in equity, at law or
by virtue of statute or otherwise. Nothing contained in this assignment of
Leases and Rents, and no act done or omitted by Grantee pursuant to the powers
and rights granted it hereunder, nor the failure of Grantee to avail itself of
any of the rights and remedies under this assignment of Leases and Rents, will
be construed or deemed to be a waiver of any of Grantee's rights and remedies
under this assignment of Leases and Rents, nor will such exercise or omission to
exercise of the powers and rights granted Grantee hereunder be deemed to
constitute a waiver of its rights and remedies under the Loan Agreement.
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23.3. Grantee's Covenants.
(a) Although this assignment of Leases and Rents constitutes a present
and absolute assignment of the Leases and the Rents, as long as there is no
Event of Default on the part of Grantor, Grantee will not require that such
Rents be paid directly to Grantee, and Grantor will have a license to collect
and use the Rents for subsequent application as provided above;
(b) Upon the payment and performance in full of Grantor's obligations
under the Loan Agreement, as evidenced by the recording or filing of an
instrument of satisfaction or termination of this Indenture without the
recording of another security instrument in favor of Grantee affecting the
Property, this assignment of Leases and Rents will be deemed terminated and
released of record by Grantee and thereupon will be null and void and of no
further force or effect.
23.4. Remedies. If any Event of Default occurs, Grantee may, at its
option, with or without notice or demand of any kind, exercise any and all of
the following remedies:
(a) Either in person, by court appointed receiver or by agent, with or
without bringing any action or proceeding, demand and thereupon take possession
of the Property, to have, hold, manage, lease and operate the same on such terms
and for such period of time as Grantee may deem proper, and either with or
without taking possession of the Property in its own name, demand and receive
the Rents in the possession of Grantor at the time of Grantee's written demand
or collected thereafter, including those past due and unpaid, with full power to
make from time to time all alterations, renovations, repairs, or replacements
thereto or thereof as may seem proper to Grantee, and to apply such Rents to the
payment of: (i) all reasonable expenses of managing the Property, including,
without limitation, the salaries, fees and wages of the managing agent and such
other employees as Grantee may deem necessary or desirable, all taxes, charges,
claims, assessments, liens, premiums for all insurance which Grantee may deem
necessary or desirable, costs of renovations, repairs, or replacements, and all
expenses incident to taking and retaining possession of the Property and
protecting and preserving the same; or (ii) the principal sum and interest
thereon of the Notes, together with all costs and attorneys' and paralegals'
fees and costs; all in such order or priority as Grantee in its sole discretion
may determine, any custom or use to the contrary notwithstanding; and
(b) In the name of Grantor or of Grantee, institute any legal or
equitable action which Grantee in its sole discretion deems desirable to collect
and receive any or all of the Rents.
Nothing herein contained will be construed to cause Grantee to be a
mortgagee in possession nor will Grantee be liable for laches for failure to
collect the Rents, and it is understood that Grantee is to account only for such
sums as are actually received by Grantee.
23.5. Further Assurances. At Grantee's request, Grantor will assign and
transfer to Grantee any and all subsequent Leases upon all or any part of the
Property and to
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execute and deliver at the request of Grantee all such further assurances and
assignments in the Leases and the Rents as Grantee will require from time to
time in its sole discretion.
23.6. Subordination, Nondisturbance and Attornment. The Leases are and
at all times shall be subject and subordinate in all respects to this Indenture,
and to all renewals, modifications, amendments, consolidations, replacements,
refinancings and extensions of this Indenture, to the full extent of all
principal, interest and all other amounts secured hereby. Provided that a tenant
is not in default under its Lease, Grantee shall not disturb the occupancy of
such tenant under its Lease during the term of such Lease, notwithstanding
foreclosure of this Indenture, acceptance of a deed in lieu of foreclosure or
exercise of any other remedy provided herein, or pursuant to the laws of the
State of Georgia. If requested by a tenant under any of the Leases or upon
Grantee's request, Grantor shall enter into a subordination, nondisturbance and
attornment agreement (reasonably acceptable in form and substance to Grantee)
with such tenant whereby Grantee will agree to not disturb the tenant in its
possession of the Property provided such tenant is not in default under its
Lease and the tenant will agree to attorn to Grantee if Grantee takes possession
of the Property.
ARTICLE XXIV
24. Security Agreement.
(a) This Indenture is hereby made and declared to be a security
agreement, encumbering each and every item of personal property included herein,
in compliance with the provisions of the Uniform Commercial Code as enacted in
the State. A financing statement or statements reciting this Indenture to be a
security agreement, affecting all of said personal property aforementioned,
shall be executed by Grantor and Grantee and appropriately filed. The remedies
for any violation of the covenants, terms and conditions of the security
agreement herein contained shall be (i) as prescribed herein, or (ii) as
prescribed by general law, or (iii) as prescribed by the specific statutory
consequences now or hereafter enacted and specified in said Uniform Commercial
Code, all at Grantee's sole election. Grantor and Grantee agree that the filing
of such financing statement(s) in the records normally having to do with
personal property shall never be construed as in any way derogating from or
impairing this declaration and hereby stated intention of Grantor and Grantee
that everything used in connection with the production of income from the
Property and/or adapted for use therein and/or which is described or reflected
in this Indenture, is, and at all times and for all purposes and in all
proceedings both legal or equitable shall be, regarded as part of the Property
irrespective of whether (i) any such item is physically attached to the
Improvements, (ii) serial numbers are used for the better identification of
certain items capable of being thus identified in a recital contained herein, or
(iii) any such item is referred to or reflected in any such financing
statement(s) so filed at any time. Similarly, the mention in any such financing
statement(s) of the rights in and to (aa) the proceeds of any fire and/or hazard
insurance policy, or (bb) any award in eminent domain proceeds for a taking or
for loss of value, or (cc) Grantor's interest as lessor in any present or future
lease or rights to income growing out of the use and/or
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occupancy of the Property, whether pursuant to lease or otherwise shall never be
construed as in anyway altering any of the rights of Grantee as determined by
this instrument impugning the priority of Grantee's estate granted hereby or by
any other recorded document, but such mention in such financing statement(s) is
declared to be for the protection of Grantee in the event any court shall at any
time hold with respect to the foregoing (aa), (bb) or (cc), that notice of
Grantee's priority of interest to be effective against a particular class of
persons, must be filed in the Uniform Commercial Code records.
(b) Grantor warrants that (i) Grantor's (that is "Debtor's") name,
identity or corporate structure and residence or principal place of business are
as set forth in Exhibit C hereto; (ii) Grantor (that is, "Debtor") has been
using or operating under said name, identity or corporate structure without
change for the time period set forth in Exhibit C hereto; and (iii) the location
of the collateral is upon the Property. Grantor covenants and agrees that
Grantor will furnish Grantee with notice of any change in the matters addressed
by clauses (i) or (iii) of this subparagraph (b) within thirty (30) days of the
effective date of any such change and Grantor will promptly execute any
financing statements or other instruments deemed necessary by Grantee to prevent
any filed financing statement from becoming misleading or losing its perfected
status.
ARTICLE XXV
25. Waiver of Homestead. Grantor hereby waives and renounces all
homestead and exemption rights provided for by the Constitution and laws of the
United States and of any state, in and to the Property as against the collection
of the secured obligations, or any part hereof.
ARTICLE XXVI
26. WAIVER OF GRANTOR'S RIGHTS. BY EXECUTION OF THIS INDENTURE, GRANTOR
EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT TO ACCELERATE THE INDEBTEDNESS SECURED
HEREBY AND THE POWER OF ATTORNEY GIVEN HEREIN TO GRANTEE TO SELL THE PROPERTY BY
NONJUDICIAL FORECLOSURE UPON DEFAULT BY GRANTOR WITHOUT ANY JUDICIAL HEARING AND
WITHOUT ANY NOTICE OTHER THAN SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED
TO BE GIVEN UNDER THE PROVISIONS OF THIS INDENTURE; (B) WAIVES ANY AND ALL
RIGHTS WHICH GRANTOR MAY HAVE UNDER THE CONSTITUTION OF THE UNITED STATES
(INCLUDING THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF, THE VARIOUS PROVISIONS
OF THE CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER
APPLICABLE LAW), (1) TO NOTICE AND JUDICIAL HEARING PRIOR TO THE EXERCISE BY
GRANTEE OF ANY RIGHT OR REMEDY HEREIN PROVIDED TO GRANTEE EXCEPT SUCH NOTICE (IF
ANY) AS IS SPECIFICALLY REQUIRED TO BE PROVIDED IN THIS INDENTURE; AND (2)
CONCERNING THE APPLICATION, RIGHTS OR BENEFITS OF ANY MORATORIUM, REINSTATEMENT,
MARSHALING,
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FORBEARANCE, APPRAISEMENT, VALUATION, STAY, EXTENSION, HOMESTEAD, EXEMPTION OR
REDEMPTION LAWS; (C) ACKNOWLEDGES THAT GRANTOR HAS READ THIS INDENTURE AND ANY
AND ALL QUESTIONS REGARDING THE LEGAL EFFECT OF THIS INDENTURE AND ITS
PROVISIONS HAVE BEEN EXPLAINED FULLY TO GRANTOR AND GRANTOR HAS CONSULTED WITH
COUNSEL OF GRANTOR'S CHOICE PRIOR TO EXECUTING THIS INDENTURE; AND (D)
ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF GRANTOR HAVE BEEN MADE
KNOWINGLY, INTENTIONALLY AND WILLINGLY BY GRANTOR AS PART OF A BARGAIN FOR THE
LOAN TRANSACTION AND THAT THIS INDENTURE IS VALID AND ENFORCEABLE BY GRANTEE
AGAINST GRANTOR IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS HEREOF.
ARTICLE XXVII
27. Approval of Legal Description. Grantor has read and does hereby
approve the legal description of the Land which Is the subject hereof, as set
forth in Exhibit A attached hereto, and hereby indemnifies Grantee and its
attorneys with respect to any liability which might arise as a consequence of
any error or omission therein.
ARTICLE XXVIII
28. Loan Agreement. The terms, provisions, conditions, representations
and warranties and covenant of the Loan Agreement are incorporated herein by
reference. In the event of a conflict between this Indenture and the Loan
Agreement, the Loan Agreement shall control.
ARTICLE XXIX
29. WAIVER OF JURY TRIAL. GRANTOR AND GRANTEE, BY ITS ACCEPTANCE
HEREOF, EACH ACKNOWLEDGE AND AGREE THAT NEITHER GRANTOR NOR GRANTEE, NOR ANY
ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF ANY OF THE SAME, WILL SEEK
A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION
PROCEDURE BASED UPON OR ARISING OUT OF THIS DEED TO SECURE DEBT, THE NOTES, THE
LOAN AGREEMENT OR THE LOAN DOCUMENTS, ANY COLLATERAL, OR THE DEALINGS OR THE
RELATIONSHIP BETWEEN GRANTOR AND GRANTEE RELATED THERETO. NEITHER OF THE PARTIES
WILL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN WHICH A JURY
TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY
NEGOTIATED BY GRANTOR AND GRANTEE, ARE MADE KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT FOR GRANTEE TO MAKE THE LOAN
TO GRANTOR, AND WILL BE SUBJECT TO NO EXCEPTIONS.
24
25
IN WITNESS WHEREOF, Grantor has caused this Indenture to be executed,
sealed, and attested by its proper officers thereunto duly authorized, as of the
day and year first above written.
Signed, sealed and delivered in the XXXXX EQUITY, INC., a Florida
presence of: corporation
/s/ Xxxxxx X. Xxxx By: /s/ G. Xxxxx Xxxxxxx
----------------------------------- -------------------------------------
Unofficial Witness Name: G. Xxxxx Xxxxxxx
----------------------------------
Title: Treasurer
----------------------------------
/s/ Xxx Xxxxx
-----------------------------------
Notary Public Attest: /s/ W. Xxxxxxxx Xxxxxxx
---------------------------------
Name: W. Xxxxxxxx Xxxxxxx
-----------------------------------
Title: Corporate Secretary
---------------------------------
My Commission Expires: Feb. 1, 1999 [CORPORATE SEAL]
Notary Public, Camden County, Georgia
-------------------------------------
[NOTARY SEAL]
25
26
EXHIBIT A
The Land
27
EXHIBIT B
Permitted Encumbrances
28
EXHIBIT C
DEBTOR
NAME: Xxxxx Equity, Inc.
CORPORATE
STRUCTURE: a Florida corporation
PRINCIPAL PLACE
OF BUSINESS: 0000 Xxxxxxxxx Xxxxxx Xxxxx #000
Xxxxxxxxxxxx, Xxxxxxx 00000
TIME PERIOD
USING NAME
WITHOUT CHANGE June 21, 1988, to present
SECURED PARTY
NAME: First Union National Bank, as Agent for the
Lenders
PRINCIPAL PLACE
OF BUSINESS: 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
