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THIS INSTRUMENT PREPARED BY, EXHIBIT 10(k)(5)(B)(i)
AND FOLLOWING RECORDING RETURN TO:
XXXX X. XXXXXXXX, XX., ESQ.
LEBOEUF, LAMB, XXXXXX & XXXXXX, L.L.P.
00 XXXXX XXXXX XXXXXX, XXXXX 0000
XXXXXXXXXXXX, XXXXXXX 00000
AMENDED AND RESTATED DEED OF TRUST, ASSIGNMENT OF LEASES AND
RENTS AND SECURITY AGREEMENT
FROM
XXXXX EQUITY, INC.
TO
TRESTE, INC.,
AS TRUSTEE
Dated as of December 30, 1998
State: North Carolina
Section:
Township:
Range:
County: Mecklenburg
Tax I.D.:
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AMENDED AND RESTATED DEED OF TRUST, ASSIGNMENT OF LEASES AND
RENTS AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT (this "Indenture"), dated as of December 30,
1998, from
XXXXX EQUITY, INC., a Florida corporation ("Borrower"), whose mailing address is
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention:
X.X. Xxxxxx, President,
to
TRESTE, INC., a Virginia corporation authorized to do business in North Carolina
("Trustee") having an address c/o First Union National Bank, a national
association, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, as
trustee for the benefit of FIRST UNION NATIONAL BANK, a national association, as
Agent (the "Beneficiary") on behalf of the Lenders under and as defined in that
certain Second Amended and Restated Revolving Credit Loan Agreement dated as of
even date herewith, as amended from time to time (the "Loan Agreement"). For
purposes of notices permitted or required to be given hereunder, the
Beneficiary's mailing address is One First Union Center, 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: First Union Capital Markets
Group.
Capitalized terms not otherwise defined herein are defined in Article I.
This Indenture amends and restates that certain Deed of Trust and Security
Agreement (the "Original Indenture") recorded in Official Records Book 9430,
Page 207, of the public records of Mecklenburg County, North Carolina, which
Original Indenture was assigned to Beneficiary, pursuant to that certain
Assignment of Deed of Trust and Related Loan Documents of even date herewith to
be recorded in the public records of Mecklenburg County, North Carolina (the
"Assignment").
W I T N E S S E T H :
THIS INDENTURE WITNESSETH, that to secure (A) the payment, performance
and observance of all obligations of Borrower and all indebtedness heretofore or
hereafter from time to time advanced under the Loan Agreement and the payment of
any and all other indebtedness which this Indenture by its terms secures
including, without limitation, the payment of principal and interest on the
Notes which shall (1) be payable to each of the Lenders, (2) be payable in full
not later than December 30, 2001, and (3) bear interest at a floating rate as
set forth in Section 2.6 of the Loan Agreement; provided, that the maximum
aggregate principal amount of indebtedness secured hereby, other than for
advances made pursuant to Article XXV, Paragraph 25 hereof, shall in no event
exceed
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$150,000,000.00 (the "Indebtedness") and (B) the performance of the covenants
and agreements contained herein and in the Loan Agreement, in consideration of
the aforesaid Indebtedness and the trust referred to and created below, Borrower
hereby irrevocably grants, bargains and sells, conveys, transfers, assigns, sets
over, hypothecates, pledges and grants to Trustee and its successors and assigns
IN TRUST WITH POWER OF SALE in and to all of Borrower's right, title and
interest in the following property and rights whether now owned or hereafter
acquired by Borrower (collectively, the "Property"):
(i) the Land;
(ii) all buildings, structures and other improvements
presently situated or hereafter constructed on the Land (collectively, the
"Improvements");
(iii) all rights, privileges, tenements, hereditaments,
rights of way, easements, rights and appurtenances belonging to or in any way
relating to either the Land or the Improvements;
(iv) all fixtures, machinery, equipment and other personal
property of all types owned by Borrower 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 Borrower'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 Borrower, to
appear in and defend any action or proceeding brought with respect to Borrower's
right, title or interest in and to the Land, the Improvements or the Fixtures
and to commence any action or
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proceeding to protect the interest of Beneficiary in the Land, the Improvements
or the Fixtures;
TO HAVE AND TO HOLD the Property unto Trustee and its successors and
assigns, forever; IN TRUST NEVERTHELESS to its own proper use and benefit
forever, upon the terms and trusts herein set forth for the benefit and security
of Beneficiary.
This Indenture is a deed of trust of real property and a security
agreement covering the Fixtures under the Uniform Commercial Code of the State.
Upon the occurrence of an Event of Default, Trustee and Beneficiary shall, in
addition to other rights and remedies granted to them, have all the rights
granted to secured parties pursuant to the Uniform Commercial Code of the State.
Borrower, for itself and for its successors and assigns, covenants and
agrees with Trustee and with Beneficiary as follows:
ARTICLE I
1. Definitions. As used in this Indenture, the following capitalized
terms have the respective meanings set after them, such definitions to be
applicable equally to the singular and plural forms of such terms:
"AmSouth" shall mean AmSouth Bank, a state banking corporation.
"Beneficiary" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Borrower" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Citizens" shall mean Citizens Bank of Rhode Island, a Rhode Island
financial institution.
"Compass" shall mean Compass Bank, an Alabama banking corporation.
"Default" shall mean any condition or event which constitutes or which
would constitute an Event of Default either with or without notice or lapse of
time, or both.
"Default Rate" shall have the meaning assigned to such term in the Loan
Agreement.
"Event of Default" shall have the meaning assigned to such term in
Article V of this Indenture.
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"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.
"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 Borrower, Beneficiary or any portion of the Property as a
result of or arising in respect of the acquisition, occupancy, leasing, use or
possession thereof, or any activity conducted on the Property (including,
without limitation, any gross income tax, sales tax or excise tax levied by any
governmental body on or with respect to the Rents).
"Improvements" shall have the meaning assigned to such term in clause
(ii) of the Granting Clause of this Indenture.
"Indebtedness" shall have the meaning assigned to such term in the
Granting Clause of this Indenture.
"Indenture" shall mean this Amended and Restated Deed of Trust,
Assignment of Leases and Rents and Security Agreement.
"Land" shall mean those certain parcels of real property located in the
County of Mecklenburg, State of North Carolina, as more particularly described
on Exhibit A attached hereto and incorporated herein.
"Leases" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"Lenders" shall mean FUNB, GFB, AmSouth, Citizens, and Compass, and any
other Lenders under the Credit Agreement from time to time.
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"Loan Agreement" shall mean that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of December 30, 1998 between Borrower
and Beneficiary.
"Loan Documents" shall mean collectively, the Notes, the Loan
Agreement, this Mortgage, and the Security Deeds, the Assignments of Leases, the
Assignments of Contracts, the Indemnification Agreements, as such terms are
defined in the Loan Agreement and any and all other loan documents executed in
connection with the Loan.
"Notes" shall mean collectively (i) the Substitution Revolving
Promissory Note dated as of even date herewith made by Borrower payable to the
order of FUNB in the principal amount of $45,000,000, (ii) the Substitution
Revolving Promissory Note dated as of even date herewith made by Borrower
payable to the order of AmSouth in the original principal amount of $35,000,000,
(iii) the Substitution Revolving Promissory Note dated as of even date herewith
made by Borrower 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 Borrower 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 Borrower 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 Borrower to or in favor of Trustee or Beneficiary to secure
the Indebtedness, other than this Indenture.
"Permitted Encumbrances" shall mean those covenants, restrictions,
reservations, liens, conditions and easements listed as exceptions to title as
set forth on Exhibit B attached hereto and incorporated herein.
"Person" shall mean any corporation, natural person, joint venture,
partnership, business trust, joint stock company, trust, unincorporated
organization, government or any department, agency or political subdivision
thereof.
"Property" shall have the meaning assigned to such term in the Granting
Clause of this Indenture.
"Rents" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"State" shall mean the State of North Carolina.
"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
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the result of or in lieu or in anticipation of the exercise of the right of
condemnation or eminent domain.
"Trustee" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
ARTICLE II
2. Representations and Warranties. Borrower represents and warrants
to Trustee for the benefit of Beneficiary that (a) it has full power, authority
and legal right to execute and deliver this Indenture and to grant a first deed
of trust of the Property, (b) it holds 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 of trust of the Property, subject to
the Permitted Encumbrances, and (d) the Leases are in full force and effect in
accordance with their respective terms, have not been canceled or modified, and
have not been assigned or encumbered except to Beneficiary pursuant to this
Indenture and the Loan Agreement, and, to the best of Borrower's knowledge, no
default exists under the Leases. Borrower, at its expense, will warrant to
Trustee and to Beneficiary and will defend its title to the Property and the
lien thereon created by this Indenture against all claims and demands, and will
maintain and preserve such lien so long as the Indebtedness secured by this
Indenture remains outstanding, subject, however, to the Permitted Encumbrances.
ARTICLE III
3. Affirmative Covenants. Until this Indenture and the lien created
hereby shall terminate in accordance with Article XIX, Borrower shall comply
with the following covenants:
(a) Recordation, Filing, Etc. At all times cause this Indenture and
each amendment or modification hereof or supplement hereto (and such financing
statements covering the Property under the Uniform Commercial Code as in effect
in the State as may be necessary or appropriate) to be recorded, registered and
filed and kept recorded, registered and filed in such manner and in such places
as appropriate, and comply with all applicable statutes and regulations, in
order to establish, preserve and protect the lien of this Indenture as a first
lien on the Property and the rights of Trustee and Beneficiary hereunder.
Borrower 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.
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(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 Borrower in the manner permitted by the Loan Agreement. Any Impositions which
are payable in installments may be paid in installments provided that the
Borrower is otherwise in compliance with the Loan Agreement. Upon the written
request of Beneficiary from time to time, Borrower will furnish to Beneficiary
official receipts or other satisfactory proof evidencing such payments. In
addition, Borrower will pay all utility charges as required by the Loan
Agreement. Borrower 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 Borrower in the manner permitted by the
Loan Agreement, and (ii) procure, maintain and comply with all licenses or other
authorizations required for any use of the Property then being made, and for the
proper erection, installation, operation, repair and maintenance of the
Improvement and the Fixtures, or any part of either thereof.
(e) Insurance. Maintain insurance of the types and in the amounts
required by, and otherwise complying with the Loan Agreement and promptly
deliver, or cause to be promptly delivered, to Beneficiary any certificates or
evidence of such insurance as required under the Loan Agreement.
(f) Damage, Destruction or Taking. In the event of any damage,
destruction or Taking affecting all or any portion of the Property, Borrower
shall give immediate written and oral notice thereof to Beneficiary and Trustee
and proceed in accordance with the terms of the Loan Agreement. In case of any
such material damage, destruction or Taking, Beneficiary shall be entitled to
hold all insurance proceeds, payments or awards on account thereof, to the same
extent Borrower would be entitled thereto under the Loan Agreement, and Borrower
hereby irrevocably assigns to Beneficiary all of its rights to any such
insurance proceeds, payments or awards. With respect to a Taking, and in
accordance with its obligations under the Loan Agreement, Borrower will file or
prosecute or will cause to be filed or prosecuted in good faith and with due
diligence what would otherwise be its claim for any such award or payment and
cause the same to be collected and paid over to Beneficiary. At the sole cost
and expense of Borrower, Beneficiary may elect to monitor or participate in, and
if reasonably necessary, may hire independent legal counsel to represent
Beneficiary in connection with, any claim or the claims payment process.
Borrower will pay or cause to be paid all costs and expenses reasonably incurred
in connection with any Taking and the seeking and obtaining of any award or
payment in respect thereof. Unless an Event of Default shall have occurred under
the Loan Agreement, all sums so received by Beneficiary shall be applied in
accordance with the provisions of the Loan Agreement.
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(g) Notification of Default, Etc. Promptly after obtaining knowledge
thereof, notify Trustee and Beneficiary of any Default hereunder or under the
Loan Agreement or of any action or proceeding materially and adversely affecting
the Property.
ARTICLE IV
4. Negative Covenants. Without the prior written consent of
Beneficiary, Borrower will not directly or indirectly create or permit to be
created or to remain and will discharge or will cause to be discharged any
mortgage, charge, lien or encumbrance on, or attachment or pledge of, or
conditional sale or other title retention agreement with respect to, the
Property or any part thereof, its interest or the interests of Trustee and
Beneficiary therein, or the Rents or other sums payable pursuant to the Leases,
except (i) this Indenture, (ii) the Permitted Encumbrances, (iii) easements,
restrictions, liens, charges and other encumbrances permitted by the Loan
Agreement, (iv) liens being contested in good faith and by appropriate
proceedings in the manner permitted by the Loan Agreement, and (v) liens arising
out of or created by any statute, the discharge of which cannot under the terms
of such statute at the particular time be effected by Borrower; provided,
however, that any such statutory liens will promptly be discharged as and when
such discharge is possible or permissible. Borrower shall have the right to
grant, without the prior consent of Beneficiary, any utility easement.
ARTICLE V
5. Events of Default. If any one or more of the following events
(individually, an "Event of Default") shall occur:
(a) non-payment, when due, of any sums which Borrower is obligated to
pay hereunder, under the Notes, or under the Loan Agreement continues unremedied
for a period of five (5) days after the date such payment is due; or
(b) failure of Borrower to keep in full force and effect its corporate
existence, rights, franchises and privileges, except as provided for in the Loan
Agreement; or
(c) if an Event of Default (as defined in the Loan Agreement) shall
have occurred under the Loan Agreement; or
(d) if any of the representations or warranties made by Borrower in
any document, instrument or certificate delivered in connection with the
financing of the Property by Borrower proves to be untrue in any material
respect; or
(e) if a default shall have occurred under any Other Indenture and
shall be continuing beyond the applicable grace or cure period provided therein;
or
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(f) if Borrower shall (i) voluntarily be adjudicated a bankrupt or
insolvent, (ii) seek or consent to the appointment of a receiver or trustee for
itself or for any portion of the Property, (iii) file a petition seeking relief
under the bankruptcy or other similar laws of the United States, any state or
any jurisdiction, (iv) make a general assignment for the benefit of creditors,
or (v) be unable to pay its debts as they mature; or
(g) a court shall enter an order, judgment or decree appointing, with
the consent of Borrower, a receiver or trustee for it or for any of the Property
or approving a petition filed against Borrower which seeks relief under the
bankruptcy or other similar laws of the United States, any state or any
jurisdiction, and such order, judgment or decree shall remain in force,
undischarged or unstayed, sixty (60) days after it is entered; or
(h) the estate or interest of Borrower in any of the Property shall be
levied upon or attached in any proceeding and such estate or interest is about
to be sold or transferred or such process shall not be vacated or discharged
within fifteen (15) days after such levy or attachment;
(i) if Borrower sells, conveys or transfers, voluntarily or otherwise,
its interest in the Property without the prior written consent of Beneficiary;
or
(j) Any material provision of the Loan Documents relating to Trustee's
and Beneficiary's ability to realize on the Collateral following an Event of
Default shall for any reason cease to be valid and binding on Borrower, or
Borrower shall so state in writing.
then, in any such event, Trustee or Beneficiary may accelerate the Indebtedness
outstanding under this Indenture, and may take such other actions as may be
provided under the Loan Agreement, or at law or in equity.
ARTICLE VI
6. Assignment of Leases and Rents.
6.1. Assignment of Rents. As additional security hereunder, the
Borrower hereby grants, bargains, conveys, assigns, transfers and sets over, and
by these presents does grant, bargain, convey, assign, transfer and set over to
the Beneficiary, as well as the Trustee on behalf of the Beneficiary, all Rents,
if any; provided, however, that unless and until an Event of Default occurs, the
Borrower will have a license to collect and retain such Rents as and when, but
not before, the same shall become due and payable. Upon an Event of Default, the
Beneficiary shall be immediately entitled to and may collect such Rents. In
addition, upon an Event of Default, the Beneficiary, or the Trustee on the
Beneficiary's behalf, may at any time and without notice, either in person or by
agent or by receiver to be appointed by a court, enter and take possession of
the Property or any part thereof, and in its own name, xxx for or otherwise
collect such Rents. The Borrower
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hereby agrees with the Beneficiary that other parties under the Leases may, upon
notice from the Beneficiary, or the Trustee acting on behalf of the Beneficiary,
on the occurrence of an Event of Default, thereafter pay directly to the
Beneficiary the Rents due and to become due under the Leases and attorn to all
other obligations thereunder, directly to the Beneficiary without any obligation
on their part to determine whether an Event of Default does, in fact, exist or
has, in fact, occurred. All Rents collected by the Trustee or the Beneficiary
shall be applied as provided in Article XII hereof; provided, however, that if
the costs and expenses and attorney's fees shall exceed the amount of the Rents
collected, the excess shall be added to the Indebtedness, shall bear interest at
the maximum rate allowable by law as provided herein, and shall be immediately
due and payable. The entering upon and taking possession of the Property, the
collection of Rents, if any, and the application thereof as aforesaid, shall not
cure or waive any Event of Default or notice of default, if any, hereunder, nor
invalidate any act done pursuant to such notice except to the extent that such
default is fully cured. Failure or discontinuance of the Trustee or the
Beneficiary at any time or from time to time, to collect said Rents, shall not
in any manner impair the subsequent enforcement by the Beneficiary, or the
Trustee on the Beneficiary's behalf, of the right, power and authority herein
conferred upon it. Nothing contained herein, nor the exercise of any right,
power or authority herein granted to the Beneficiary, or the Trustee on the
Beneficiary's behalf, shall be construed to be an affirmation by it of any
tenancy, lease or option, nor an assumption of liability under, nor the
subordination of the lien or charge of this Indenture, to any such tenancy,
lease or option.
ARTICLE VII
7. Remedies in Case of Event of Default.
7.1. Legal Proceedings and Foreclosure. If an Event of Default shall
have occurred, Trustee or Beneficiary may proceed by suit or suits at law or in
equity or by any other appropriate remedy to protect and enforce its rights
hereunder, whether for the specific performance of any covenant or agreement
contained herein, or for an injunction against the violation of any of the terms
hereof, or in aid of the exercise of any right, power or remedy available to it,
or to enforce the payment of the Indebtedness under the Loan Agreement, or to
foreclose the lien and security interest of 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 Beneficiary proceeds to foreclose the lien of this Indenture, Trustee
shall have the statutory power of sale if permitted by applicable law. In the
event of any such suit or proceeding, Beneficiary and/or Trustee shall comply
with any local laws applicable to any such suits or proceedings. Any such suit
or proceeding instituted by Trustee shall be brought in its name as Trustee and
any recovery or judgment shall be for the benefit of Beneficiary. All costs and
expenses (including, without limitation, reasonable attorney's fees and
expenses) incurred by Trustee or Beneficiary in connection with any such suit or
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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 Borrower to Trustee
or Beneficiary, as the case may be, on demand.
7.2. Power of Sale and Procedure. If an Event of Default shall have
occurred, Trustee, at Beneficiary's election, may sell or offer for sale the
Property in such portions, order and parcels as Beneficiary may determine, with
or without having first taken possession of same, to the highest bidder for cash
at public auction. In exercising such power of sale, Trustee shall give such
notice of hearing as to the commencement of the foreclosure proceedings and
shall obtain such findings or leave at court as may then be required by
applicable law and shall give such notice of such foreclosure sale and shall
advertise the time and place of such sale in such manner as may then be provided
by applicable law and shall comply in all respects with all laws applicable to
the institution, conduct, and completion of power of sale foreclosures. Such
sale shall be made in conformance with the laws of the State in which the
Property is located at the courthouse door of the county wherein the Property is
situated. All aspects of any power of sale foreclosure commenced by Trustee
hereunder shall be accomplished in such manner as permitted or required by State
law in existence on the date hereof relating to the sale of real estate and/or
relating to the sale of collateral after a default by a debtor, as the same may
be amended or supplemented, or by any subsequent laws relating to same. At any
such sale (i) whether made under the power herein contained, State law, any
other legal requirement or by virtue of any judicial proceeding or any other
legal right, remedy or recourse, it shall not be necessary for Trustee to have
physically present, or to have constructive possession of, the Property
(Borrower hereby covenanting and agreeing to deliver to Trustee any portion of
the Property not actually or constructively possessed by Trustee immediately
upon demand by Trustee) and the title to and right of possession of any such
property shall pass to the purchaser thereof as completely as if the same had
been actually present and delivered to such purchaser at such sale, and (ii) the
receipt of Trustee or of such other party or officer making the sale shall be a
sufficient discharge to the purchaser or purchasers for his or their purchase
money and no such purchaser or purchasers, or his or their assigns or personal
representatives, shall thereafter be obligated to see to the application of such
purchase money or be in any way answerable for any loss, misapplication or
non-application thereof.
7.3. Acceleration of Maturity. If an Event of Default shall have
occurred, Beneficiary may declare the entire outstanding Indebtedness under the
Loan Agreement, and all other sums secured hereby, to be due and payable
immediately, and upon such declaration, such Indebtedness and other sums shall
immediately become and be due and payable without demand or notice.
7.4. Leases. Trustee at the option of Beneficiary is authorized to
foreclose this Indenture subject to the rights of any tenants of the Property,
and the failure to make any
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such tenants parties defendant to any such foreclosure proceedings and to
foreclose their rights will not be, nor be asserted by Borrower to be, a defense
to any proceedings instituted by Trustee and/or Beneficiary to collect the sums
secured hereby or to collect any deficiency remaining unpaid after the
foreclosure sale of the Property.
7.5. Suits to Protect the Property. Beneficiary, or Trustee at
Beneficiary's election, shall have the power and authority to institute and
maintain any suits and proceedings as Beneficiary may deem advisable (a) to
prevent any impairment of the Property by any acts which may be unlawful or any
violation of this Indenture, (b) to preserve or protect its interest in the
Property, and (c) to restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order might impair the security hereunder or be
prejudicial to Beneficiary's interest.
7.6. Discontinuance of Proceedings; Position of Parties Restored. If
Beneficiary, or Trustee at Beneficiary's election, shall have proceeded to
enforce any right or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to Beneficiary, then and in
every such instance, Borrower and Beneficiary 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 Beneficiary shall continue as
if no such proceeding had occurred or had been taken.
7.7. Borrower to Pay the Indebtedness on Any Default in Payment;
Application of Monies by Beneficiary.
(a) If an Event of Default shall occur as a result of Borrower's
failure to pay any amount due under the Loan Agreement or this Indenture, then,
upon Beneficiary's demand, Borrower will pay to Beneficiary the whole amount due
and payable under the Loan Agreement and all other sums secured hereby. If
Borrower shall fail to pay the same forthwith upon such demand, Beneficiary, or
Trustee at Beneficiary's election, shall be entitled to xxx for and to recover
judgment for the whole amount so due and unpaid together with costs and
expenses, including the reasonable compensation, expenses and disbursements of
Beneficiary's agents, attorneys and other representatives. Beneficiary shall be
entitled to xxx and recover judgment as aforesaid either before, after or during
the pendency of any proceedings for the enforcement of this Indenture, and the
right of Beneficiary 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 lien hereof.
(b) In case of a foreclosure sale of all or any part of the Property
and of the application of the proceeds of sale to the payment of the sums
secured hereby, Beneficiary
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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) Borrower hereby agrees, to the extent permitted by law, that no
recovery of any such judgment by Beneficiary and no attachment or levy of any
execution upon any of the Property or any other property shall in any way affect
the lien of this Indenture upon the Property or any part thereof or any lien,
rights, powers or remedies of Beneficiary hereunder, but such lien, rights,
powers and remedies of Beneficiary hereunder shall continue unimpaired as
before.
ARTICLE VIII
8.1. Purchase of the Property by Beneficiary. Beneficiary may be a
purchaser of the Property or any part thereof or any interest therein at any
sale thereof, whether pursuant to foreclosure, power of sale or otherwise, and
may apply the Indebtedness secured hereby to the purchase price.
8.2. Title Upon Sale; Receipt a Sufficient Discharge to Purchaser.
After the occurrence of an Event of Default hereunder, and upon the sale of the
Property or any part thereof or any interest therein by Trustee or Beneficiary,
whether pursuant to foreclosure, power of sale or otherwise, the purchaser shall
acquire good title thereto, free of the lien of this Indenture and free of all
rights of redemption, whether statutory, equitable or otherwise, in Borrower to
the extent permitted by applicable law. The receipt of the officer making the
sale under judicial proceedings or of Trustee or Beneficiary shall be sufficient
discharge to the purchaser for the purchase money, and such purchaser shall not
be obligated to see to the application thereof. All occupants of the Property
sold or any part thereof shall become tenants at sufferance of the purchaser,
and as long as a tenant is not in default under its Lease, the purchaser will
not disturb the occupancy of such tenant of the Property during the term of its
Lease. It shall not be necessary for the purchaser at any such sale to bring any
action for possession to the Property purchased other than statutory action of
forcible detainer in any justice court having jurisdiction.
8.3. Application of Indebtedness Toward Purchase Price. If Beneficiary
purchases the Property pursuant to foreclosure, power of sale or otherwise, then
Beneficiary may, in lieu of cash, apply all or any portion of the sums due to
Beneficiary under the Loan Agreement and this Indenture or any other instrument
securing the Indebtedness, to the unpaid balance of the purchase price remaining
after payment of any portion of the purchase price required to be paid in cash,
and the costs and expenses of the sale, compensation and other charges relating
to the sale.
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ARTICLE IX
9. Waiver of Appraisement, Valuation, Etc. Borrower 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 X
10. Appointment of Receiver. If an Event of Default shall have
occurred, Trustee and/or Beneficiary shall, as a matter of right and to the
fullest extent permitted by applicable law, be entitled, ex parte and without
notice, to the appointment of a receiver or receivers of the Property or any
part thereof, whether such receivership be incidental to a proposed sale thereof
or otherwise, and Borrower hereby consents to the appointment of such a receiver
or receivers and will not oppose any such appointment. The expenses, including
receiver's fees, attorney's fees, costs and agent's compensation, incurred
pursuant to the powers herein contained shall be secured by this Indenture.
ARTICLE XI
11. Possession, Management and Income. If an Event of Default shall
have occurred under this Indenture, Trustee or Beneficiary, without further
notice, may enter upon and take possession of the Property or any part thereof,
in any manner permitted by law, by reasonable force, summary proceedings,
ejectment or otherwise and may remove Borrower and all other Persons and any and
all property therefrom, and Trustee or Beneficiary may hold, operate and manage
the same, make all necessary or proper repairs, renewals, and replacements, and
useful alterations, additions, betterments and improvements thereto and thereon
as may seem advisable to either of them, and insure and reinsure the Property as
may seem advisable and to either of them, and may receive all earnings, income,
rents, issues and proceeds accruing with respect thereto. Any amounts so
received by Trustee or Beneficiary shall be applied (a) to pay (i) the expenses
of operating the Property and of all maintenance, repairs, renewals,
replacements, alterations, additions, betterments, improvements, taxes,
assessments, insurance premiums, reasonable compensation for the services of
Trustee and all attorneys, advisors, brokers, receivers, agents and other
employees engaged or employed by Trustee or Beneficiary and all other costs and
expenses of entering a bond and taking possession of and holding the Property,
and (ii) any lien prior to the lien of this Indenture which Beneficiary may
consider it necessary or desirable to discharge and then (b) in the manner
provided in Article XII of this Indenture. If an Event of Default shall have
occurred under the Loan Agreement or if the Loan Agreement shall be terminated,
all sums so received by Trustee or Beneficiary shall be applied in the manner
specified in Article XII of this Indenture.
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ARTICLE XII
12. Application of Proceeds. The proceeds of (a) the operation and
management of the Property pursuant to Article XI of this Indenture, and (b) any
sale of the Property or any interest therein, shall, unless otherwise provided
in the Loan Agreement, be applied as follows:
First: to the costs and expenses of the sale, reasonable attorneys'
fees and expenses, reasonable Trustee's fees and expenses, court costs, and any
other expenses or advances made or incurred in the protection of the rights of
Trustee and Beneficiary or in the pursuance of any remedies hereunder;
Second: to the fullest extent permitted by applicable law, to any lien
prior to the lien of this Indenture which Beneficiary may consider it necessary
or desirable to discharge;
Third: to any Indebtedness secured by this Indenture and at the time
due and payable (whether by acceleration or otherwise;
Fourth: to Beneficiary for payment of the Notes outstanding; and
Fifth: the balance, if any, to Borrower.
ARTICLE XIII
13. Remedies, Etc., Cumulative. Each legal, equitable or contractual
right, power or remedy of Trustee and Beneficiary now or hereafter provided
herein or by statute or otherwise shall be cumulative and concurrent and shall
be in addition to every other right, power and remedy, and the exercise or
beginning of the exercise by Trustee or Beneficiary of any one or more of such
rights, powers and remedies shall not preclude the simultaneous or later
exercise of any or all such other rights, powers and remedies.
ARTICLE XIV
14. No Waiver, Etc. No failure by Trustee or Beneficiary to insist upon
the strict performance of any term hereof or to exercise any right, power or
remedy consequent upon a breach hereof shall constitute a waiver of any such
term or of any such breach. No acceptance of the payment of any sums due under
this Indenture or under the Loan Agreement during the continuance of any Default
shall constitute a waiver thereof. No waiver of any breach shall affect or alter
this Indenture which shall continue in full force and effect with respect to any
other then existing or subsequent breach.
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ARTICLE XV
15. Trustee.
(a) All the rights, powers and remedies of Beneficiary hereunder may be
exercised by Trustee. Trustee shall not be under any obligation to exercise any
trust or power vested in him by this Indenture unless Beneficiary shall have
offered Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by Trustee in compliance herewith. Trustee
shall not be liable with respect to any action taken or omitted to be taken by
Trustee in accordance with the written directions of Beneficiary, except for
Trustee's own bad faith, willful misconduct or negligence. Trustee shall not be
required to ascertain or inquire as to the performance or observance of any of
the covenants or agreements of Borrower herein, and in the absence of written
notice from Borrower or Beneficiary stating that a Default has occurred and
specifying the same, Trustee may conclusively assume that no Default exists.
(b) Trustee may, with consent of Beneficiary, consult with counsel
(which may be counsel for Borrower) and the written advice or opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by him hereunder in good faith and in
accordance therewith.
(c) Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys.
(d) Any moneys received by Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
law.
(e) Beneficiary may, by instrument in writing, filed in the office or
offices where this Indenture has been recorded, and at any time or from time to
time, and without notice and without specifying any reason therefor, and without
applying to any court, remove Trustee and select a successor trustee or trustees
in the event of the death, removal, resignation, refusal to act, or inability to
act of Trustee or, in its sole discretion, for any reason whatsoever. Trustee so
ceasing to act shall duly assign, transfer and deliver any of the property and
monies held by such Trustee to the successor appointed in Trustee's place. All
powers, rights and duties and authority of Trustee shall thereupon become vested
in the successor. The successor shall not be required to give bond or make an
oath for the faithful performance of his duties unless required by Beneficiary.
(f) Trustee may resign by the giving of notice of such resignation in
writing to Beneficiary.
(g) If more than one Trustee is appointed under this Indenture, all
rights granted to and all powers conferred upon Trustee hereunder may be
exercised by both or either of Trustees.
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(h) All reasonable expenses, charges, counsel fees and other
disbursements incurred by Trustee in and about the administration of this
Indenture and executed in the performance of its duties and powers hereunder
shall be secured by this Indenture.
ARTICLE XVI
16. Right of Trustee or Beneficiary to Perform Covenants, Etc. If
Borrower shall fail to make any payment or perform any act required to be made
or performed hereunder and such failure shall not be cured within the applicable
grace period, if any, Trustee or Beneficiary, without notice to or demand upon
Borrower 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 Borrower and may enter
upon the Property or any part thereof for such purpose and take all such action
thereon as, in the opinion of Trustee or Beneficiary, may be necessary or
appropriate therefor. All sums so paid by Trustee or Beneficiary and all costs
and expenses (including, without limitation, attorneys' fees and expenses) so
incurred shall constitute additional Indebtedness secured by this Indenture and
shall be paid by Borrower to Trustee or Beneficiary on demand.
ARTICLE XVII
17. Certificate as to No Default, Etc.; Information. At any time and
from time to time, Borrower will deliver to Beneficiary, promptly upon request,
a certificate signed by a duly authorized officer of Borrower 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 Borrower is taking or proposes
to take with respect thereto. Borrower will also furnish promptly to
Beneficiary, such information with respect to the Property and the Leases as may
from time to time be requested.
ARTICLE XVIII
18. Additional Instruments. Borrower, at its expense, will execute,
acknowledge, secure and deliver all such instruments and take all such action as
Trustee or Beneficiary from time to time may reasonably request for the better
assuring of the Property, rights and obligations now or hereafter subjected to
the security of this Indenture or intended so to be.
ARTICLE XIX
19. Defeasance. This Indenture and the lien created hereby shall
terminate after the payment in full of (a) all the Indebtedness and (b) all
other sums secured hereby. Upon such termination, and upon surrender of this
Indenture for cancellation, Beneficiary shall
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release, without warranty, the Property then subject to the lien hereof to the
Persons entitled thereto. The recitals in any reconveyance executed under this
Indenture of any matters of fact shall be conclusive proof of the truthfulness
thereof. The grantee in such release may be described as "the person or persons
legally entitled thereto". Trustee and/or Beneficiary, at Borrower's expense,
shall execute and deliver such instruments of release, satisfaction and
termination in proper form for recording or filing, as may be appropriate to
evidence the release of (a) the Property from the lien created hereby, and (b)
any other security held by Trustee and/or Beneficiary and such satisfaction and
termination, and such instruments, when duly executed, recorded and filed, shall
conclusively evidence the release, satisfaction and termination of this
Indenture.
ARTICLE XX
20. 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 XXI
21. 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 Borrower, its successors and assigns, and
all Persons claiming under or through Borrower or any such successor or assign,
and shall inure to the benefit of and be enforceable by Trustee and its
successors and Beneficiary and its successors and assigns. The headings in this
Indenture are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof. All agreements between Borrower and Beneficiary,
whether now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of demand or
acceleration of the maturity of any payments hereunder or under the Loan
Agreement or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to Beneficiary exceed the maximum amount permissible
under applicable law. If, in any circumstance whatsoever, interest would
otherwise be payable to Beneficiary in excess of the maximum lawful amount, and
if in any circumstance Beneficiary shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, and if
permitted by applicable law,
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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 Borrower. All interest paid or agreed to be paid to
Beneficiary shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full period until payment in full
of the principal so that the interest hereon for such full period shall not
exceed the maximum amount permitted by applicable law. This paragraph shall
control all agreements between Borrower and Beneficiary. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one and the same instrument. Portions of
the Property consist of goods which are, or are to become, fixtures relating to
the Land and Borrower expressly covenants and agrees that the filing of this
Indenture in the real estate records of the county where the Property is located
shall also operate from the time of filing therein as a financing statement
filed as a fixture filing in accordance with Article 9 of the State's Uniform
Commercial Code - Secured Transactions.
ARTICLE XXII
22. Change in Method of Taxation. In the event of the passage, after
the date of this Indenture, of any law changing in any way the laws now in force
for the taxation of mortgages or debts secured thereby, for state or local
purposes, or the operation of any such taxes so as to adversely affect the
interest of Beneficiary in the Property, this Indenture or the Loan Agreement,
Borrower shall, upon demand, bear and pay the full amount (or any partial
amount) requested by Beneficiary, of taxes resulting from such changes hereunder
without offset or credit against any other sums due under the Loan Agreement or
on the Notes.
ARTICLE XXIII
23. Trustee's Acceptance. Trustee accepts the trust created hereby when
this Indenture, duly executed and acknowledged, is made a public record in the
State and county where the Property is located, as provided by the laws of the
State.
ARTICLE XXIV
24. No Petition. Trustee and Beneficiary hereby covenant and agree that
they will not institute against, or join any Person in instituting against
Borrower, 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 Borrower pursuant to the
Loan Agreement.
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ARTICLE XXV
25. Indenture Secures Future Advances. This Indenture is given to
secure not only the amount initially secured by this Indenture, but also such
future advances, whether such advances are obligatory or are to be made at the
option of Trustee or Beneficiary, or otherwise, as are made within fifteen (15)
years from the date hereof, to the same extent as if such future advances were
made on the date of the execution of this Indenture. The total amount of
advances outstanding and presently secured hereby is Eighty-six Million Dollars
($86,000,000.00). The Loan Agreement currently provides Borrower with a
revolving line of credit up to $150,000,000.00. However, pursuant to Section
2.11 of the Loan Agreement, Borrower may request an increase to the Loan Amount
up to $200,000,000.00 upon approval of the Lenders as set forth therein. Any
such increase to the Loan Amount shall constitute a future advance and shall be
secured by this Indenture to the same extent as if such future advance was made
on the date of the execution of this Indenture. This Indenture secures a
revolving line of credit under which Advances may be made, repaid, and
reborrowed on a revolving basis as provided for in the Loan Agreement.
ARTICLE XXVI
26. Approval of Legal Description. Borrower has read and does hereby
approve the legal description of the Land which Is the subject hereof, as set
forth in Exhibit A attached hereto, and hereby indemnifies Trustee and
Beneficiary and their attorneys with respect to any liability which might arise
as a consequence of any error or omission therein.
ARTICLE XXVII
27. Loan Agreement. The terms, provisions, conditions, representations
and warranties and covenant of the Loan Agreement are incorporated herein by
reference. In the event of a conflict between this Indenture and the Loan
Agreement, the Loan Agreement shall control. The Loan Agreement contains
provisions permitting Borrower to obtain releases of portions of the Property
from this Indenture from time to time.
ARTICLE XXVIII
28. WAIVER OF JURY TRIAL. BORROWER, TRUSTEE, AND BENEFICIARY, BY THEIR
ACCEPTANCE HEREOF, EACH ACKNOWLEDGE AND AGREE THAT NEITHER BORROWER, TRUSTEE,
AND BENEFICIARY, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF
ANY OF THE SAME, WILL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF
THIS DEED OF TRUST, THE NOTES, THE LOAN AGREEMENT OR THE LOAN DOCUMENTS, ANY
COLLATERAL, OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG BORROWER,
TRUSTEE OR BENEFICIARY RELATED
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THERETO. NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY
OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY BORROWER, TRUSTEE, AND BENEFICIARY, ARE
MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL
INDUCEMENT FOR TRUSTEE AND BENEFICIARY TO MAKE THE LOAN TO TRUSTOR, AND WILL BE
SUBJECT TO NO EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Borrower has caused this Indenture to be executed
and attested by its proper officers thereunto duly authorized, as of the day and
year first above written and has executed the same in order that this Indenture
may qualify as a financing statement under the Uniform Commercial Code of the
State as to such of the Property, if any, constitutes personalty.
XXXXX EQUITY, INC.,
Attest: a Florida corporation
By:/s/ W. Xxxxxxxx Xxxxxxx By: /s/ G. Xxxxx Xxxxxxx
-------------------------------- --------------------------
Name: W. Xxxxxxxx Xxxxxxx Name: G. Xxxxx Xxxxxxx
--------------------------- ------------------------
Its: Secretary Title: Treasurer
---------------------------- -----------------------
[AFFIX CORPORATE SEAL]
STATE OF Georgia:
-------
COUNTY OF Camden:
-------
I, Xxx Xxxxx, a Notary Public of the County of Camden, State of
Georgia, do hereby certify that W. Xxxxxxxx Xxxxxxx , personally appeared
before me this day and acknowledged that he/she is the Secretary of XXXXX
EQUITY, INC., a Florida corporation, and that by authority duly given and as an
act of the corporation, the foregoing instrument was signed in its name by its
Treasurer, sealed with its corporate seal, and attested by himself as its
Secretary.
Witness my hand and official seal this 30th day of December, 1998.
Xxx Xxxxx
-------------------------------------
Notary Public
Notary Public, Camden County, Georgia
My commission expires: Feb. 1, 1999
[NOTARIAL SEAL]
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EXHIBIT A
The Land
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EXHIBIT B
Permitted Encumbrances
