EXHIBIT 10(gg)
SPACE ABOVE THIS LINE FOR RECORDER'S USE
After recording, please return to:
M. Xxxxxx Xxxxxxx, Esq.
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXX
XXXXX XX XXXXXXX XXXXX REFERENCE
COUNTY OF XXXXXX Deed Book Z22, Page 21
Decatur County, Georgia Records
Deed Book A 26, Page 79
Decatur County, Georgia Records
SECOND AMENDMENT TO
SECURITY DEED AND AGREEMENT
THIS SECOND AMENDMENT TO SECURITY DEED AND AGREEMENT (this
"SECOND AMENDMENT") is made effective as of the 4th day of August, 2003, by and
between XXXXX SYSTEMS, INC., a South Dakota corporation ("GRANTOR"), and
SUNTRUST BANK, a Georgia banking corporation ("GRANTEE").
WITNESSETH:
WHEREAS, Grantor executed and delivered to Grantee that
certain Security Deed and Agreement dated as of March 30, 2001, and recorded in
Deed Book Z22, beginning at Page 21, in the Office of the Clerk of the Superior
Court of Decatur County, Georgia (the "SECURITY DEED"), covering and conveying
all right, title and interest of Grantor in and to all that tract of land
described on Exhibit "A" thereto located in Decatur County, Georgia (the
"ORIGINAL
ENCUMBERED PROPERTY") and securing Grantor's payment and performance of that
certain promissory note dated March 30, 2001, made by Grantor in favor of
Grantee, in the original principal amount of Ten Million and No/100 Dollars
($10,000,000.00), bearing interest and being due and payable as therein
provided, with a final payment being due thereunder on August 30, 2002
(hereinafter called the "2001 REVOLVER NOTE");
WHEREAS, Grantor also made and delivered to Grantee that
certain promissory note dated June 10, 2002, in the original principal amount of
Seven Million and No/100 Dollars ($7,000,000.00), bearing interest and being due
and payable as therein provided, which promissory note was issued in replacement
of and substitution for the 2001 Revolver Note with a final payment being due
thereunder on May 30, 2003 (the "2002 REVOLVER NOTE");
WHEREAS, in order to modify and amend the Security Deed to
reflect that the indebtedness secured by the Security Deed was evidenced by the
2002 Revolver Note, Grantor and Grantee executed that certain First Amendment to
Security Deed and Agreement dated June 10, 2002, which was recorded in Deed Book
A-26, beginning at Page 79, in the Office of the Clerk of the Superior Court of
Decatur County, Georgia (the "FIRST AMENDMENT");
WHEREAS, Grantor also made and delivered to Grantee that
certain promissory note dated May 30, 2003, in the original principal amount of
Seven Million and No/100 Dollars ($7,000,000.00), bearing interest and being due
and payable as therein provided, which promissory note was issued in replacement
of and substitution for the 2002 Revolver Note with a final payment being due
thereunder on May 29, 2004 (the "2003 REVOLVER NOTE");
WHEREAS, Grantor contemporaneously with the execution and
delivery of this Second Amendment, has also made and delivered to Grantee that
certain promissory note dated as of August 4, 2003, in favor of Grantee, in the
original principal amount of Four Hundred Ninety-Eight Thousand And No/100
Dollars ($498,000.00), bearing interest and being due and payable as therein
provided, with a final payment being due thereunder on August 1, 2013 (the "TERM
NOTE");
WHEREAS, after the recording of the First Amendment, Grantor
and Grantee determined that certain tracts or parcels of land in the City of
Bainbridge, Georgia lying in Land Xxx 000 xx xxx 00xx Xxxx Xxxxxxxx xx Xxxxxxx
Xxxxxx, Xxxxxxx were inadvertently omitted from Exhibit "A" attached to the
Security Deed (such inadvertently omitted tracts or parcels of land are
described in Exhibit "A" attached hereto and made a part hereof by reference and
are hereinafter referred to as the "ADDITIONAL ENCUMBERED PROPERTY");
WHEREAS, Grantor and Grantee now desire to modify and amend
the Security Deed in order to reflect that: (i) the lien and security title of
the Security Deed shall also cover and convey the Additional Encumbered
Property; and (ii) to reflect that the indebtedness secured by the Security Deed
is now evidenced by the 2003 Revolver Note and the Term Note.
NOW THEREFORE, for and in consideration of the foregoing
premises and the sum of Ten and No/100 Dollars ($10.00) cash in hand paid by
each party hereto to the other, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Grantor and Grantee hereby agree as follows:
1. AMENDMENT TO DEFINITION OF NOTE. The Security Deed, as previously
modified and amended by the First Amendment, is hereby further modified and
amended (i) by deleting the following from the third page thereof:
"THIS INSTRUMENT IS A DEED passing legal title pursuant to the
laws of the State of Georgia governing deeds to secure debt, and is
also a security agreement granting a present and continuing security
interest and security title in the portion of the Premises constituting
personal property or fixtures, pursuant to the Uniform Commercial Code
of the State of Georgia, and it is not a mortgage. This security deed
and agreement is made and intended to secure payment and performance of
the following: (i) any indebtedness of Grantor to Grantee evidenced by
that certain Promissory Note dated as of June 10, 2002, made by Grantor
and payable to the order of Grantee, in the original principal amount
of SEVEN MILLION AND NO/100 DOLLARS ($7,000,000.00), bearing interest
and being due and payable as therein provided, with a final payment
being due thereunder on May 30, 2003 (hereinafter called the "Note");
(ii) any and all renewal or renewals, extension or extensions,
replacement or replacements, modification or modifications thereof, and
substitution or substitutions therefor, either in whole or in part;
(iii) all advances, if any, made by Grantee pursuant to the terms of
this security deed and agreement; (iv) all expenses incident to the
collection of the indebtedness secured by this security deed and
agreement; and (v) all duties and obligations of Grantor under this
security deed and agreement. The obligations and indebtedness which
this security deed and agreement is given to secure are hereinafter
sometimes collectively called the "Indebtedness". This security deed
and agreement is hereinafter sometimes called this "Security Deed".
and (ii) by simultaneously substituting in lieu thereof the following:
"THIS INSTRUMENT IS A DEED passing legal title pursuant to the
laws of the State of Georgia governing deeds to secure debt, and is
also a security agreement granting a present and continuing security
interest and security title in the portion of the Premises constituting
personal property or fixtures, pursuant to the Uniform Commercial Code
of the State of Georgia, and it is not a mortgage. This security deed
and agreement is made and intended to secure payment and performance of
the following: (i) any indebtedness of Grantor to Grantee evidenced by
(1) that certain promissory note dated as of May 30, 2003 in the
principal amount of SEVEN MILLION AND NO/100 DOLLARS ($7,000,000.00)
bearing interest as provided therein, and providing, among other
things, for final payment of principal and interest thereunder, if
not sooner paid, to be due on or before May 29, 2004 (the "Revolver
Note") and (2) and that certain promissory note dated August 4, 2003
in the principal amount of FOUR HUNDRED NINETY EIGHT THOUSAND AND
NO/100 DOLLARS ($498,000.00) bearing interest as
provided therein, and providing, among other things, for final
payment of principal and interest thereunder, if not sooner paid or
payable as provided therein, to be due on or before August 1, 2013
(the "Term Note" ) (the Revolver Note and the Term Note, together
with all notes issued and accepted in substitution or exchange
therefor, and as any of the foregoing may from time to time be
modified, extended, renewed, consolidated, restated or replaced, are
hereinafter sometimes collectively referred to as the "Note"), the
Note by this reference thereto being incorporated herein; (ii) any
and all renewal or renewals, extension or extensions, replacement or
replacements, modification or modifications thereof, and substitution
or substitutions therefor, either in whole or in part; (iii) all
advances, if any, made by Grantee pursuant to the terms of this
security deed and agreement; (iv) all expenses incident to the
collection of the indebtedness secured by this security deed and
agreement; and (v) all duties and obligations of Grantor under this
security deed and agreement. The obligations and indebtedness which
this security deed and agreement is given to secure are hereinafter
sometimes collectively called the "Indebtedness". This security deed
and agreement is hereinafter sometimes called this "Security Deed".
2. ADDITIONAL ENCUMBERED PROPERTY.
(a) The security lien, security interest, security title and
assignments created and conveyed by the Security Deed are hereby extended and
spread to cover the Additional Encumbered Property described in EXHIBIT "A"
attached hereto.
(b) The Security Deed is hereby modified and amended by (i)
deleting in its entirety the description of the Original Encumbered Property
contained in EXHIBIT "A" attached thereto, and (ii) substituting in lieu thereof
the description of real property contained in EXHIBIT "B", attached hereto and
incorporated herein by reference, which description includes the Original
Encumbered Property and the Additional Encumbered Property.
(c) All references in the Security Deed to "Property" shall from
and after the date hereof be deemed references to the Original Encumbered
Property and the Additional Encumbered Property as described in EXHIBIT "B"
attached hereto.
(d) Grantor hereby irrevocably and absolutely does by these
presents GRANT, BARGAIN, CONVEY, TRANSFER, ASSIGN AND SELL to Grantee, its
successors and assigns, with all powers of sale (if any) and all statutory
rights under the laws of the State of Georgia, and grants to Grantee a security
interest in, all of Grantor's present and hereafter acquired estate, right,
title and interest in, to and under the Additional Encumbered Property, together
with: (i) all buildings, structures and other improvements now or hereafter
located on the Additional Encumbered Property or on any part or parcel of the
Additional Encumbered Property, hereinafter called the "Additional
Improvements"; (ii) all and singular the tenements, hereditaments, easements and
appurtenances belonging to the Additional Encumbered Property or in anywise
appertaining to the Additional Encumbered Property, and the reversion or
reversions, remainder or remainders thereof; (iii) all leases, undertakings to
lease, contracts to rent, usufructs and other agreements for use, occupancy or
possession now or hereafter in force with respect to the
Additional Encumbered Property or any part or parcel of the Additional
Encumbered Property or any of the Additional Improvements, and any and all other
agreements, contracts, licenses, permits and arrangements now or hereafter
affecting the Additional Encumbered Property or any part or parcel of the
Additional Encumbered Property or any of the Additional Improvements, whether
written or oral and whether now or hereafter made or executed and delivered,
hereinafter collectively called the "Additional Leases"; (iv) all rents, issues,
income, revenues and profits now or hereafter accruing from, and all accounts
and contract rights now or hereafter arising in connection with, the Additional
Encumbered Property or any part or parcel of the Additional Encumbered Property
or any of the Additional Improvements, including without limitation all rents,
issues, income, revenues and profits accruing from, and all accounts and
contract rights arising in connection with, the Additional Leases, together with
all monies and proceeds now or hereafter due or payable with respect thereto or
on account thereof, and all security deposits, damage deposits and other funds
paid by any lessee, sublessee, tenant, subtenant, licensee, permittee or other
obligee under any of the Additional Leases, whether paid in a lump sum or
installments, all of which are hereinafter collectively called the "Additional
Rents"; (v) all minerals, flowers, crops, trees, timber, shrubbery and other
emblements now or hereafter located on the Additional Encumbered Property or
under the Additional Encumbered Property or on or under any part or parcel of
the Additional Encumbered Property; (vi) all estates, rights, title and interest
in the Additional Encumbered Property, or in any part or parcel of the
Additional Encumbered Property; (vii) all equipment, machinery, apparatus,
fittings, furniture, furnishings and personal property of every kind or
description whatsoever owned by Grantor or in which Grantor has an interest, now
or hereafter located on the Additional Encumbered Property or on any part or
parcel of the Additional Encumbered Property or in or on any of the Additional
Improvements, and used in connection with the operation or maintenance of the
Additional Encumbered Property or any of the Additional Improvements, all
accessions and additions to and replacements of the foregoing and all proceeds
(direct and remote) of the foregoing, including without limitation all plumbing,
heating, lighting, ventilating, refrigerating, water-heating, incinerating,
air-conditioning and heating, and sprinkling equipment and systems, and all
screens, awnings and signs; (viii) all fixtures (including all trade, domestic
and ornamental fixtures) owned by Grantor or in which Grantor has an interest,
now or hereafter on the Additional Encumbered Property or on any part or parcel
of the Additional Encumbered Property or in or on any of the Additional
Improvements, whether actually or constructively attached or affixed, including
without limitation all plumbing, heating, lighting, ventilating, refrigerating,
water-heating, incinerating, air-conditioning and heating, and sprinkling
fixtures, and all screens, awnings and signs which are fixtures; (ix) all
building materials, supplies, goods, machinery and equipment delivered to the
Additional Encumbered Property and placed on the Additional Encumbered Property
for the purpose of being affixed to or installed or incorporated or otherwise
used in or on the Additional Encumbered Property or any part or parcel of the
Additional Encumbered Property or any of the Additional Improvements, and all
accessions and additions to and replacements of the foregoing and all proceeds
(direct or remote) of the foregoing; (x) all payments, awards, judgments and
settlements (including interest thereon) to which Grantor may be or become
entitled as a result of the exercise of the right of eminent domain with respect
to the Additional Encumbered Property or any part or parcel of the Additional
Encumbered Property or any of the Additional Improvements; and (xi) all policies
of insurance which insure against loss or damage to any property described above
and all proceeds from and payments under such
policies. The Additional Encumbered Property and all of the foregoing are
hereinafter sometimes collectively called the "Additional Premises".
TO HAVE AND TO HOLD the Additional Premises with all rights, privileges
and appurtenances thereunto belonging, and all income, rents, royalties,
revenues, issues, profits and proceeds therefrom, unto Grantee, its successors
and assigns, forever, for the uses and purposes herein expressed.
(e) All references in the Security Deed to "Improvements" shall
from and after the date hereof be deemed references to the Improvements (as
defined in the Security Deed) and the Additional Improvements, as defined
herein.
(f) All references in the Security Deed to "Premises" shall from
and after the date hereof be deemed references to the Premises (as defined in
the Security Deed) and the Additional Premises, as defined herein.
(g) All references in the Security Deed to "Leases" shall from and
after the date hereof be deemed references to the Leases (as defined in the
Security Deed) and the Additional Leases, as defined herein.
(h) All references in the Security Deed to "Rents" shall from and
after the date hereof be deemed references to the Rents (as defined in the
Security Deed) and the Additional Rents, as defined herein.
(i) Grantor warrants that Grantor has fee simple title to the
Additional Premises, that Grantor is lawfully seized and possessed of the
Additional Premises, that Grantor has the right to convey the Additional
Premises, that the Additional Premises are unencumbered except by the matters
set forth in Exhibit "C" attached hereto and incorporated herein by reference
and that Grantor shall forever warrant and defend the title to the Additional
Premises unto Grantee against the claims of all persons whomsoever, other than
claims arising under any matter set forth on Exhibit "C" hereof.
3. INTANGIBLE RECORDING TAX.
(a) The Revolver Note constitutes a "short-term note secured by
real estate" as defined by O.C.G.A. Section 48-6-60(4). Accordingly, no State of
Georgia intangible recording tax shall be payable with respect to the Revolver
Note.
(b) The Term Note constitutes a "long term note secured by real
estate" as defined by O.C.G.A. Section 48-6-60(3). Accordingly, a State of
Georgia intangible recording tax shall be payable with respect to the Term Note
at the rate of $1.50 per $500 of the principal amount of the Term Note. Upon
the filing for recordation of this Second Amendment in Decatur County, Georgia,
the State of Georgia intangible recording tax shall be payable to the Clerk of
the Superior Court of Decatur County, Georgia in the amount of $1,494.00.
4. RATIFICATION. Except as expressly modified and amended by the
First Amendment and this Second Amendment, the Security Deed is and shall remain
in full force and effect. This Second Amendment is not intended to be nor shall
it constitute a novation of the Security Deed or of the indebtedness secured
thereby. Grantor hereby ratifies, confirms and approves the Security Deed as
previously modified in the First Amendment, and as further modified herein and
agrees that the same constitutes the valid and binding obligation of Grantor and
is enforceable by Grantee in accordance with its terms.
5. GOVERNING LAW. This Second Amendment shall be governed by,
construed, interpreted and enforced in accordance with the laws of the State of
Georgia.
6. BINDING EFFECT. This Second Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns.
7. DEFINITIONS. Each capitalized term used in this Second
Amendment shall have the meaning ascribed to it in the Security Deed, as
previously modified and amended by the First Amendment, unless such term is
otherwise defined in this Second Amendment or the context requires otherwise.
8. COUNTERPARTS. This Second Amendment may be executed and
acknowledged in counterparts, all of which executed and acknowledged
counterparts shall together constitute a single document.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, Grantor and Grantee have executed and
delivered this Second Amendment, and have affixed their seals hereto, all as of
the day and year first written above.
GRANTOR:
Signed, sealed and delivered in XXXXX SYSTEMS, INC.,
the presence of: a South Dakota corporation
[ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------------- -------------------------------
Unofficial Witness President
[ILLEGIBLE]
---------------------------
Notary Public Attest:
My Commission Expires:
[STAMP] [ILLEGIBLE]
--------------------------- ----------------------------------
Secretary
(NOTARIAL SEAL) (CORPORATE SEAL)
[Signature Page to Second Amendment to Security Deed and Agreement]
IN WITNESS WHEREOF, Grantor and Grantee have executed and delivered this Second
Amendment, and have affixed their seals hereto, all as of the day and year first
written above.
GRANTEE:
Signed, sealed and delivered in XXXXX SYSTEMS, INC., a South Dakota
presence of: corporation
_______________________________ By:_____________________________________
Unofficial Witness Chief Financial Officer
_______________________________
Notary Public (CORPORATE SEAL)
My Commission Expires:
_______________________________
(NOTARIAL SEAL)
GRANTEE:
Signed, sealed and delivered in SUNTRUST BANK,
the presence of:
[ILLEGIBLE] By: /s/ Xxxxxxx Xxxxxxxx
------------------------------- ------------------------------------
Unofficial Witness Xxxxxxx Xxxxxxxx, Its Vice President
[ILLEGIBLE]
-------------------------------
Notary Public
My Commission Expires:
[STAMP]
-------------------------------
(NOTARIAL SEAL)
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