Exhibit 10(a)(3)(B)
PREPARED BY AND
AFTER RECORDING RETURN TO:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxx, LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000
DEED OF TRUST
AND SECURITY AGREEMENT
(NORTH CAROLINA)
THIS DEED OF TRUST AND SECURITY AGREEMENT (this "Instrument") is made and
entered into as of this 28th day of December, 2001, by and between XXXXX EQUITY,
INC., a Florida corporation, having a mailing address of 000 Xxxxx Xxxx, Xxxxx
000, Xxxx Xxxxx, Xxxxxxx 00000 ("Obligor"), LAWYERS TITLE INSURANCE CORPORATION,
a Virginia corporation, having its principal place of business at 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, as trustee
("Trustee") and FLEET NATIONAL BANK, a national banking association ("Fleet"),
having a mailing address of 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attn: Structured Real Estate, as Agent for itself and each other lender
(collectively, the "Lenders") which is or may hereafter become a party to that
certain Revolving Credit Loan Agreement, dated as of December 28, 2001, by and
among Obligor, Fleet, as Agent and Lenders (as the same may be varied, amended,
restated, renewed, consolidated, extended or otherwise supplemented from time to
time, the "Credit Agreement") (Fleet, in its capacity as Agent, is hereinafter
referred to as "Agent").
W I T N E S S E T H:
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00) and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to secure the indebtedness and other obligations of
Obligor hereinafter set forth, Obligor does hereby grant, bargain, sell, convey,
assign, transfer and set over unto the Trustee and its successors and assigns,
in trust, with Power of Sale, for the ratable benefit of Agent and Lenders and
their successors and assigns as beneficiaries in trust, all of the following
described land and interests in land, estates, easements, rights, improvements,
property, fixtures, equipment, furniture, furnishings, appliances and
appurtenances (collectively, the "Property"):
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(a) All those tracts or parcels of land and easements more
particularly described in Exhibit "A" attached hereto and by this reference made
a part hereof (the "Land").
(b) All buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land, and all gas and electric
fixtures, radiators, heaters, engines and machinery, boilers, ranges, elevators
and motors, plumbing and heating fixtures, carpeting and other floor coverings,
fire extinguishers and any other safety equipment required by governmental
regulation or law, water heaters, mirrors, mantels, air conditioning apparatus,
refrigerating plants, refrigerators, cooking apparatus and appurtenances, window
screens, awnings and storm sashes, which are or shall be owned by Obligor and
attached to said buildings, structures or improvements and all other
furnishings, furniture, fixtures, machinery, equipment, appliances, vehicles,
building supplies and materials, books and records, chattels, inventory,
accounts, farm products, consumer goods, general intangibles and personal
property of every kind and nature whatsoever now or hereafter owned by Obligor
and located in, on or about, or used or intended to be used with or in
connection with the use, operation or enjoyment of the Property, including all
extensions, additions, improvements, betterments, after-acquired property,
renewals, replacements and substitutions, or proceeds from a permitted sale of
any of the foregoing, and all the right, title and interest of Obligor in any
such furnishings, furniture, fixtures, machinery, equipment, appliances,
vehicles and personal property subject to or covered by any prior security
agreement, conditional sales contract, chattel mortgage or similar lien or
claim, together with the benefit of any deposits or payments now or hereafter
made by Obligor or on behalf of Obligor, all of which are hereby declared and
shall be deemed to be fixtures and accessions to the Land and a part of the
Property as between the parties hereto and all persons claiming by, through or
under them, and which shall be deemed to be a portion of the security for the
indebtedness herein described and to be secured by this Instrument.
(c) All easements, rights-of-way, strips and gores of land,
vaults, streets, ways, alleys, passages, sewer rights, waters, water courses,
water rights and powers, minerals, flowers, shrubs, crops, trees, timber and
other emblements now or hereafter located on the Land or under or above the same
or any part or parcel thereof, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments and appurtenances, reversion and
reversions, remainder and remainders, whatsoever, in any way belonging, relating
or appertaining to the Land or any part thereof, or which hereafter shall in any
way belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Obligor.
(d) All income, rents, issues, profits and revenues of the
Property from time to time accruing (including, without limitation, all payments
under leases or tenancies (collectively, the "Leases"), proceeds of insurance,
condemnation payments, tenant security deposits whether held by Obligor or in a
trust account, and escrow funds), and all the estate, right, title, interest,
property, possession, claim and demand whatsoever at law, as well as in equity,
of Obligor of, in and to the same; reserving only the right to Obligor to
collect the same (other than insurance proceeds and condemnation payments) so
long as Obligor is not in default hereunder.
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(e) All right, title and interest, if any, of Obligor in all
transferable building service, building maintenance, construction, development,
management, indemnity, and other similar agreements and contracts, written or
oral, express or implied, now or hereafter entered into, arising or in any
manner related to the construction, design, improvement, use, operation,
ownership, occupation, enjoyment, sale, conversion or other disposition
(voluntary or involuntary) of the Property, or the buildings and improvements
now or hereafter located thereon, or any other interest in the Property, or any
combination thereof, including without limitation all property management
agreements, sales contracts, purchase options, option agreements, rights of
first refusal, contract deposits, xxxxxxx money deposits, prepaid items and
payments due and to become due thereunder, and further including all payment and
performance bonds, construction guaranties, warranties and other undertakings,
construction contracts, architects agreements, general contract agreements,
design agreements, engineering agreements, technical service agreements,
architectural plans and specifications, drawings, surveys, renderings and
models, sewer and water and other utility agreements, permits, approvals,
licenses, agreements, contracts, building permits, service contracts,
advertising contracts, purchase orders and equipment leases, personal property
leases, tradenames, trademarks, servicemarks and logos, and all goodwill
symbolized thereby or pertaining thereto and all causes of action relating
thereto.
(f) All accounts, instruments, accounts receivable, documents,
causes of action, claims, all right, title and interest, if any, of Obligor in
all names by which the Property or the improvements thereon may be operated or
known, all rights of Obligor to carry on business under such names, all right,
title and interest, if any, of Obligor in all telephone numbers or listings, all
rights, interest and privileges of which Obligor may have as developer or
declarant under any covenants, restrictions or declarations now or hereafter
relating to the Property or the improvements thereon, and all notes or chattel
paper now or hereafter arising from or by virtue of any transactions relating to
the Property or the improvements located thereon.
(g) All assets of Obligor related to the ownership or
operation of the Property or the improvements now or hereafter erected thereon,
including, without limitation, accounts (including, without limitation,
health-care-insurance receivables), chattel paper (whether tangible or
electronic), deposit accounts, documents, general intangibles (including,
without limitation, payment intangibles and software), goods (including, without
limitation, inventory, equipment, fixtures and accessions), instruments
(including, without limitation, promissory notes), investment property,
letter-of-credit rights, letters of credit, money, supporting obligations,
as-extracted collateral, timber to be cut and all proceeds and products of
anything described or referred to above in this Subsection (g), in each case as
such terms are defined under the Uniform Commercial Code as in effect in the
applicable jurisdiction.
(h) All cash funds, deposit accounts and other rights and
evidence of rights to cash, now or hereafter created or held by Agent pursuant
to this Instrument, the Credit Agreement or any other of the Loan Documents (as
defined in the Credit Agreement).
(i) All proceeds, products, substitutions and accessions
of the foregoing of every type.
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TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof in trust, with Power of Sale to secure the payment to
Agent and Lenders of the Secured Obligations at the time and in the manner
provided for its payment in the Note and in this Instrument and for the use,
benefit and behoof of the Trustee for the ratable benefit of Agent and Lenders
and their respective successors and assigns, IN FEE SIMPLE forever; and Obligor
covenants that Obligor is lawfully seized and possessed of the Property as
aforesaid, and has good right to convey the same, that the same is unencumbered
except for those matters expressly set forth in Exhibit "B" attached hereto and
by this reference made a part hereof (the "Permitted Encumbrances"), and that
Obligor does warrant and will forever defend the title thereto against the
claims of all persons whomsoever, except as to those matters set forth in said
Exhibit "B" attached hereto.
Provided, however, these presents are upon the express condition that, if
Obligor shall well and truly pay to the Lenders or Agent on behalf of Lenders
the Secured Obligations at the time and in the manner provided in the Note, the
Credit Agreement, and this Instrument, shall well and truly perform the other
obligations as set forth in this Instrument and shall well and truly abide by
and comply with each and every covenant and condition set forth herein and in
the Note, the Credit Agreement and the other Loan Documents, these presents and
the estate hereby granted shall cease, terminate and be void and, upon request
of Agent and Trustee, Lenders and Trustee shall execute a release of this
Instrument evidencing the same; provided, however, that Obligor's obligation to
indemnify and hold harmless Lenders pursuant to the provisions hereof shall
survive any such payment or release.
This conveyance is given to secure the following described indebtedness
(collectively, the "Secured Obligations"):
(a) The debt evidenced by (i) those certain Revolving Credit
Notes made by Obligor in the aggregate principal amount of One Hundred
Twenty-Five Million and No/100 Dollars ($125,000,000), and that certain
Swingline Note made by Obligor in the principal amount of Two Million Five
Hundred Thousand and No/100 Dollars ($2,500,000), each of which has been issued
pursuant to the Credit Agreement and each of which is due and payable in full on
or before December 27, 2004 and (ii) each other note as may be issued under the
Credit Agreement, each as originally executed, or if varied, extended,
supplemented, consolidated, amended, replaced, renewed, modified or restated
from time to time as so varied, extended, supplemented, consolidated, amended,
replaced, renewed, modified or restated (collectively, the "Note").
(b) The payment, performance and discharge of each and every
obligation, covenant and agreement of Obligor contained herein, in the Credit
Agreement, and in the other Loan Documents (as defined in the Credit Agreement).
(c) Any and all additional advances made by any Lender to
protect or preserve the Property or the lien and security title hereof in and to
the Property, or for taxes, assessments or insurance premiums as hereinafter
provided (whether or not Obligor remains the owner of the Property at the time
of such advances).
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(d) Any and all other indebtedness now or hereafter owing by
Obligor to any Lender pursuant to the terms of the Credit Agreement, whether now
existing or hereafter arising or incurred, however evidenced or incurred,
whether express or implied, direct or indirect, absolute or contingent, due or
to become due, including, without limitation, all principal, interest, fees,
expenses, yield maintenance amounts and indemnification amounts, and all
renewals, modifications, consolidations, replacements and extensions thereof.
(e) All reasonable out-of-pocket costs and expenses incurred
by the Agent in connection with the enforcement and collection of the Secured
Obligations, including, without limitation, all attorneys' fees and
disbursements, and all other such costs and expenses described in and incurred
pursuant to the Note, the Credit Agreement, this Instrument, and the other Loan
Documents (as defined in the Credit Agreement) (collectively, the "Enforcement
Costs").
This Deed of Trust secures all present and future loan disbursements made by
Agent or Lenders under the Note, and all other sums from time to time owing to
the Agent and Lenders by the Obligor under the Credit Agreement or other Loan
Documents. The amount of the present disbursement secured hereby is Zero Dollars
($0.00), and the maximum principal amount which may be secured hereby at any one
time is One Hundred Twenty-Five Million and no/Dollars ($125,000,000). The time
period within which such future disbursements are to be made is the period
between the date hereof and the date fifteen (15) years from the date hereof.
Disbursements secured hereby shall not be required to be evidenced by a "written
instrument or notation" as described in Section 45-68(2) of the North Carolina
General Statutes, it being the intent of the parties that the requirements of
Section 45-68(2) for a "written instrument or notation" for each advance shall
not be applicable to disbursements made under the Loan Agreement and Notes.
Obligor hereby further covenants and agrees with Agent for the ratable benefit
of Lenders as follows:
ARTICLE 1
1.01 Payment of Secured Obligations. Obligor will pay the Secured
Obligations according to the tenor thereof and all other sums now or hereafter
secured hereby promptly as the same shall become due.
1.02 Representations and Warranties. Obligor represents and warrants to
Agent, for the ratable benefit of Lenders, that, as of the date hereof:
(a) Obligor has good and marketable title in fee to such of
the Property as is real property, subject to no liens, encumbrances or
restrictions other than Permitted Encumbrances. There has been no labor or
materials furnished to the Property on behalf of Obligor that has not been paid
for in full or for which payment will not be made in the ordinary course.
(b) Obligor has no actual notice, information or knowledge of
any change contemplated in (i) any applicable law, ordinance, regulation, or
restriction; (ii) any judicial, administrative, governmental or
quasi-governmental action; (iii)of any action by adjacent land owners; or (iv)
of any natural or artificial conditions existing upon the Property, which would
materially limit, restrict, or prevent the contemplated or intended use and
purpose of the Property.
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(c) There is no pending condemnation or similar proceeding
affecting the Property, or any portion thereof, nor, to the best knowledge of
Obligor, is any such action being presently contemplated.
(d) No part of the Property is being used for agricultural
purposes or being used for a personal residence by Obligor or any shareholder
of Obligor.
(e) The Property is undamaged by fire, windstorm, or other
casualty.
(f) The Property complies in all material respects with all
zoning and subdivision ordinances, energy and environmental codes, building and
use restrictions and codes, and any requirements with respect to licenses,
permits and agreements necessary for the lawful use and operation of the
Property, or, to the extent of any non-compliance with zoning and building
codes, the Property is a valid non-conforming use pursuant to the applicable
zoning and building codes.
(g) The heating, electrical, sanitary sewer plumbing, storm
sewer plumbing, potable water plumbing and other building equipment, fixtures
and fittings in the existing improvements on the Property are in good condition
and working order, are adequate in quantity and quality for normal and usual
use, and are fit for the purposes intended and the use contemplated.
(h) The Property is covered by a tax parcel(s) which pertain
to the Property only and not to any property which is not subject to this
Instrument.
(i) The Property is improved with office buildings and related
parking and has frontage on, and direct access for ingress and egress to a
public street.
1.03 Taxes, Liens and Other Charges.
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(a) In the event of the passage of any state, federal,
municipal or other governmental law, order, rule or regulation, subsequent to
the date hereof, in any manner changing or modifying the laws now in force
governing the taxation of debts secured by deeds of trust or the manner of
collecting taxes so as to materially adversely affect Lenders, Obligor will
promptly pay any such tax. If Obligor fails to make such prompt payment or if,
in the opinion of Agent, any such state, federal, municipal, or other
governmental law, order, rule or regulation prohibits Obligor from making such
payment or would penalize Lenders if Obligor makes such payment or if, in the
opinion of Agent, the making of such payment might result in the imposition of
interest beyond the maximum amount permitted by applicable law, then the entire
balance of the principal sum secured by this Instrument and all interest accrued
thereon shall, at the option of Agent, become due and payable unless, within
ninety (90) days thereafter, Obligor shall substitute property unaffected by
such tax considerations for the Property and otherwise satisfy the conditions
for release of the Property set forth in Section 5.5 of the Credit Agreement.
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(b) Obligor will pay all taxes, liens, assessments and charges
of every character including all utility charges, whether public or private,
already levied or assessed or that may hereafter be levied or assessed upon or
against the Property as required under the Credit Agreement. If the Agent shall
collect escrow funds under Section 7.8 of the Credit Agreement with respect to
such taxes, liens, assessments and charges, such funds will be made available
for payment of the same.
(c) Obligor will not suffer any mechanic's, materialmen's,
laborer's, statutory or other lien to be created and to remain outstanding upon
all or any part of the Property other than Permitted Encumbrances.
1.04 Insurance.
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(a) Obligor shall procure for, deliver to and maintain for the
benefit of Trustee, Agent and Lenders during the term of this Instrument,
original insurance policies (or a master policy) issued by insurance companies,
in amounts, in form and substance, and with expiration dates reasonably
acceptable to Agent and containing non-contributory standard mortgagee clauses,
their equivalent or a satisfactory mortgagee loss payable endorsement in favor
of Trustee, Agent and Lenders, providing the following types of insurance on the
Property:
(i) insurance against loss or damage by fire, lightning,
vandalism, malicious mischief and flood (if the Land is in an area which is
considered a flood risk area by the U.S. Department of Housing and Urban
Development), and against such other hazards as are presently included in
so-called "all risk replacement cost insurance" and against such other insurable
hazards as, under good insurance practices, from time to time are insured
against for properties of similar character and location; the amount of which
insurance shall be not less than one hundred percent (100%) of the full
replacement cost of the Property without deduction for depreciation; and which
policies of insurance shall contain satisfactory replacement cost endorsements;
(ii) During the course of construction or repair of any
improvements on the Land, the insurance required by clause (i) above shall be
written on a builders risk, completed value, non-reporting form, meeting all of
the terms required by clause (i) above, covering the total value of work
performed, materials, equipment, machinery and supplies furnished, existing
structures, and temporary structures being erected on or near the Land,
including coverage against collapse and damage during transit or while being
stored off-site, and containing a soft costs (including loss of rents) coverage
endorsement and a permission to occupy endorsement;
(iii) rent or business interruption insurance against loss
of income arising out of damage or destruction by fire, lightning, vandalism,
malicious mischief and flood and such other hazards as are presently included
in so-called "all risk replacement cost insurance" in the amount equal to the
gross annual income derived by Obligor from the Property; and
(iv) Commercial general liability insurance against claims
for personal injury (to include, without limitation, bodily injury and personal
and advertising injury) and property damage liability, all on an occurrence
basis, if commercially available, with such coverages as the Agent may
reasonably request (including, without limitation, contractual liability
coverage, completed operations coverage for a period of two years following
completion of construction of any improvements on the Land, and coverages
equivalent to an ISO broad form endorsement), with a general aggregate limit of
not less than $2,000,000, a completed operations aggregate limit of not less
than $2,000,000, and a combined single "per occurrence" limit of not less than
$1,000,000 for bodily injury and property damage and $5,000 for medical
payments;
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(v) During the course of construction or repair of any
improvements on the Land, to the extent not provided by the general contractor,
owner's contingent or protective liability insurance covering claims not
covered by or under the terms or provisions of the insurance required by
clause (iv) above;
(vi) Employers liability insurance;
(vii) Umbrella liability insurance with limits of not less
than $20,000,000 to be in excess of the limits of the insurance required by
clauses (iv), (v) and (vi) above, with coverage at least as broad as the primary
coverages of the insurance required by clauses (iv), (v) and (vi) above, with
any excess liability insurance to be at least as broad as the coverages of the
lead umbrella policy. All such policies shall be endorsed to provide defense
coverage obligations;
(viii) Workers' compensation insurance for all employees
of the Obligor; and
(ix) Such other insurance in such form and in such amounts
as may from time to time be reasonably required by the Agent against other
insurable hazards and casualties which at the time are commonly insured against
in the case of properties of similar character and location to the Property.
Obligor shall pay all premiums on insurance policies. The insurance policies
provided for in clauses (iv), (v) and (vii) above with respect to the Property
shall name the Agent and each Lender as an additional insured and shall contain
a cross liability/severability endorsement. The insurance policies provided for
in clauses (i), (ii), and (iii) above shall name the Agent as mortgagee and loss
payee, shall be first payable in case of loss to the Agent, and shall contain
mortgagee clauses and lender's loss payable endorsements in form and substance
reasonably acceptable to the Agent. Obligor shall deliver duplicate originals or
certified copies of all such policies to the Agent.
All policies of insurance required by this Instrument shall contain clauses or
endorsements to the effect that (i) no act or omission of the Obligor or any of
its subsidiaries or anyone acting for the Obligor or any such subsidiary
(including, without limitation, any representations made in the procurement of
such insurance), which might otherwise result in a forfeiture of such insurance
or any part thereof, no occupancy or use of the Property for purposes more
hazardous then permitted by the terms of the policy, and no foreclosure or any
other change in title to the Property or any part thereof, shall affect the
validity or enforceability of such insurance insofar as the Agent is concerned,
(ii) the insurer waives any right of setoff, counterclaim, subrogation, or any
deduction in respect of any liability of the Obligor or any such subsidiary and
the Agent, (iii) such insurance is primary and without right of contribution
from any other insurance which may be available, (iv) such policies shall not be
modified, canceled or terminated prior to the scheduled expiration date thereof
without the insurer thereunder giving at least 30 days prior written notice to
the Agent by certified or registered mail, and (v) that the Agent or the Lenders
shall not be liable for any premiums thereon or subject to any assessments
thereunder, and shall in all events be in amounts sufficient to avoid any
coinsurance liability.
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Neither the Obligor nor any of its subsidiaries shall carry separate insurance,
concurrent in kind or form or contributing in the event of loss, with any
insurance required under this Instrument unless such insurance complies with the
terms and provisions of this Section 1.04.
(b) Agent is hereby authorized and empowered, at its option,
after the occurrence and during the continuance of an Event of Default, to
adjust or compromise any loss under any insurance policies maintained pursuant
to this Paragraph 1.04, and to collect and receive the proceeds from any such
policy or policies. Each insurance company is hereby authorized and directed to
make payment for all such losses directly to Agent, instead of to Obligor and
Agent jointly. In the event any insurance company fails to disburse directly and
solely to Agent but disburses instead either solely to Obligor or to Obligor and
Agent jointly, Obligor agrees immediately to endorse and transfer such proceeds
to Agent. Upon the failure of Obligor to endorse and transfer such proceeds as
aforesaid, Agent may execute such endorsements or transfers for and in the name
of Obligor and Obligor hereby irrevocably appoints Agent as Obligor's agent and
attorney-in-fact so to do. Agent shall not be held responsible for any failure
to collect any insurance proceeds due under the terms of any policy regardless
of the cause of such failure.
(c) At least thirty (30) days prior to the expiration date of
each policy maintained pursuant to this Paragraph 1.04, a renewal or replacement
thereof complying with the requirements of this Paragraph 1.04 shall be
delivered to Agent. Obligor shall deliver to Agent receipts evidencing the
payment for all such insurance policies and renewals or replacements. The
delivery of any insurance policies hereunder shall constitute an assignment of
all unearned premiums as further security hereunder. In the event of the
foreclosure of this Instrument or any other transfer of title to the Property in
extinguishment of the Secured Obligations secured hereby, all right, title and
interest of Obligor in and to all insurance policies then in force shall pass
to the purchaser or Agent.
1.05 Condemnation. If all or any "material" portion of the Property shall be
damaged or taken through condemnation (which term when used in this Instrument
shall include any damage or taking by any governmental authority or any transfer
by private sale in lieu thereof), either temporarily or permanently, then Agent
shall be entitled to receive all compensation, awards and other payments or
relief thereof, and Agent is hereby authorized, at its option, after the
occurrence and during the continuance of an Event of Default, to commence,
appear in and prosecute, in its own or in Obligor's name, any action or
proceeding relating to any condemnation, and to settle or compromise any claim
in connection therewith. All such compensation, awards, damages, claims, rights
of action and proceeds and the right thereto are hereby assigned by Obligor to
Agent. After deducting from said condemnation proceeds all of its expenses
incurred in the collection and administration of such sums, including reasonable
attorney's fees, Agent may apply the net proceeds or any part thereof, at its
option, (a) to the payment of the Secured Obligations hereby secured, whether or
not due and in whatever order Agent elects, (b) to the repair and/or restoration
of the Property or (c) for any other purposes or objects for which Agent is
entitled to advance funds under this Instrument, all without affecting the lien
of this Instrument; and any balance of such monies then remaining shall be paid
to Obligor. Obligor agrees to execute such further assignment of any
compensation, awards, damages, claims, rights of action and proceeds as Agent
may require. For the purposes of this Section 1.05 any condemnation or taking
shall be deemed to be "material" in the event that (a) such taking has a
material adverse effect upon the means of access from the public streets to the
improvements or the number of parking spaces available at the Property (unless
Obligor shall provide reasonable substitutes therefor), (b) the improvements are
severed by such taking, (c) the taking makes it impractical or inefficient
(after the restoration or repair of the Property) for the continued conduct of
business at the Property in the same manner as such business was conducted prior
to such taking as determined by Agent, or (d) Agent shall determine that
following such repair or restoration there shall be a fifteen percent (15%) or
more reduction in the occupancy or in rental income (excluding any proceeds from
rental loss insurance or proceeds from such award allocable to rent).
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1.06 Restoration and Repair. If all or any part of the Property shall be damaged
by fire or other casualty, Obligor will promptly restore the Property to the
equivalent of its original condition; and if a part of the Property shall be
damaged through condemnation, Obligor will promptly restore, repair or alter the
remaining portions of the Property in a manner satisfactory to Agent.
Notwithstanding the foregoing, Obligor shall not be obligated to so restore
unless in each instance, Agent agrees to make available to Obligor (pursuant to
a procedure satisfactory to Agent) any net insurance or condemnation proceeds
actually received by Agent hereunder in connection with such casualty loss or
condemnation, to the extent such proceeds are required to defray the expense of
such restoration; provided, however, that the insufficiency of any such
insurance or condemnation proceeds to defray the entire expense of restoration
shall in no way relieve Obligor of its obligation to restore. In the event all
or any portion of the Property shall be damaged or destroyed by fire or other
casualty or by condemnation, Obligor shall promptly deposit with Agent a sum
equal to the amount by which the estimated cost of the restoration of the
Property (as determined by Agent in its good faith judgment) exceeds the actual
net insurance or condemnation proceeds received by Agent in connection with such
damage or destruction.
1.07 Care, Use and Management of Property.
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(a) Obligor will keep, or cause to be kept, the buildings,
roads and walkways, landscaping and all other improvements of any kind now or
hereafter erected on the Land or any part thereof in good condition and repair,
will not commit or suffer any material waste and will not do or suffer to be
done anything which will increase the risk of fire or other hazard to the
Property or any part thereof.
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(b) Obligor will not remove or demolish nor alter the
structural character of any building located on the Land in a manner that would
materially and adversely affect its value without the written consent of Agent.
(c) If the Property or any part thereof is materially damaged
by fire or any other cause, Obligor will give immediate written notice thereof
to Agent.
(d) To the extent permitted under the terms of the applicable
Leases, each Lender or its representative is hereby authorized to enter upon and
inspect the Property at any time during normal business hours.
(e) Obligor will promptly comply in all material respects with
all present and future laws, ordinances, rules and regulations of any
governmental authority affecting the Property or any part thereof.
1.08 Leases and Other Agreements Affecting Property. Obligor will duly and
punctually perform in all material respects all terms, covenants, conditions and
agreements binding upon it under any Lease or any other agreement of any nature
whatsoever which involves or affects the Property or any part thereof. Obligor
will not enter into, modify, surrender or terminate, either orally or in
writing, any Lease now existing or hereafter created upon the Property or any
part thereof, nor will Obligor permit an assignment or a subletting by any
tenant other than in accordance with the terms of the Credit Agreement. Obligor
will not accept payment of rent more than one (1) month in advance without the
prior written consent of Agent. In order to further secure payment of the
Secured Obligations and the observance, performance and discharge of Obligor's
obligations, Obligor hereby collaterally assigns, transfers and sets over unto
Agent all of Obligor's right, title and interest in, to and under all Leases
affecting the Property or any part thereof and in and to all of the rents,
issues, profits, revenues, awards and other benefits now or hereafter arising
from the use and enjoyment of the Property or any part thereof; reserving only
the right to Obligor to collect and use the same so long as no Event of Default
is continuing.
Agent shall be entitled to require, and Obligor shall use its best efforts to
obtain, the execution of tenant estoppels and subordination, non-disturbance and
attornment agreements from any Major Tenant (as defined in the Credit Agreement)
in a form specified by the related tenant Lease, if any, and reasonably
acceptable to Agent. Obligor hereby authorizes and directs each present and
future tenant of the Property to pay to Agent all rents and any other sums due
Obligor as landlord and to perform for the direct benefit of Agent any other
obligations of such tenant to Obligor as landlord, as if Agent were the landlord
under such tenant's Lease, immediately upon receipt of a written demand by Agent
to make such payment or perform such obligation during the existence of an Event
of Default. No such demand by Agent shall constitute or be deemed to constitute
any assumption by Agent of any obligations of the landlord under such tenant's
Lease. No such demand by Agent shall constitute or be deemed to constitute any
wrongful interference by Agent in the affairs or business relationships for
ascertaining whether any such demand by Agent is authorized or whether a default
by Obligor has occurred under this Instrument. Obligor hereby waives any right,
claim or action Obligor may now or hereafter have against any such tenant by
reason of such tenant's payment to or performance for Agent as described above,
and any such payment to or performance for Agent shall discharge the obligation
of such tenant to make such payment to, or perform such obligation for, Obligor.
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Obligor shall furnish the Agent with signed copies of all new, modified or
renewal Leases affecting the Property, as required pursuant to the terms and
provisions of the Credit Agreement.
1.09 Security Agreement.
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(a) Insofar as the machinery, apparatus, equipment, fittings,
fixtures, building supplies and materials, and articles of personal property
either referred to or described in this Instrument, or in any way connected
with the use and enjoyment of the Property is concerned, this Instrument is
hereby made and declared to be a security agreement, encumbering each and every
item of personal property (the "Personal Property") included herein, in
compliance with the provisions of the Uniform Commercial Code as enacted in the
applicable jurisdiction as set forth in Section 3.04 below (the "UCC"). A
financing statement or statements reciting this Instrument to be a security
agreement, affecting all of said personal property aforementioned, shall be
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 the UCC, all at Agent's sole election. Obligor and Agent 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 Obligor and Agent
that, to the extent permitted by applicable law, 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 Instrument, is, and at all times
and for all purposes and in all proceedings both legal or equitable shall be,
regarded as part of the real estate 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 (1) the proceeds of
any fire and/or hazard insurance policy, or (2) any award in eminent domain
proceedings for a taking or for loss of value, or (3) Obligor's interest as
lessor in any present or future Lease or rights to income growing out of the
use and/or occupancy of the Property, whether pursuant to Lease or otherwise,
shall never be construed as in anyway altering any of the rights of Agent as
determined by this Instrument or impugning the priority of Agent's lien granted
hereby or by any other recorded document, but such mention in such financing
statement(s) is declared to be for the protection of Agent in the event any
court shall at any time hold with respect to the foregoing (1), (2) or (3),
that notice of Agent's priority of interest to be effective against a
particular class of persons, must be filed in the UCC records.
(b) Obligor warrants that (i) Obligor's (that is, "Debtor's")
correct legal name (including, without limitation, punctuation and spacing)
indicated on the public record of Obligor's jurisdiction of organization,
identity or corporate structure, residence or chief executive office and
jurisdiction of organization are as set forth in Subparagraph 1.09(c) hereof;
(ii) Obligor (that is, "Debtor") has been using or operating under said name,
identity or corporate structure without change for the time period set forth in
Subparagraph 1.09(c) hereof, and (iii) the location of the collateral secured
by this Instrument is upon the Land. Obligor covenants and agrees that Obligor
shall not change any of the matters addressed by clauses (i) or (iii) of this
Subparagraph 1.09(b), other than transfer, sale or replacement of personal
property in the ordinary course, unless it has given Agent thirty (30) days
prior written notice of any such change and has executed or authorized at the
request of Agent, such additional financing statements or other instruments to
be filed in such jurisdictions as Agent may deem necessary or advisable in its
sole discretion to prevent any filed financing statement from becoming
misleading or losing its perfected status.
(c) The information contained in this Subparagraph 1.09(c) is
provided in order that this Instrument shall comply with the requirements of the
Uniform Commercial Code, as enacted in the State of North Carolina, for
instruments to be filed as financing statements. The names of the "Debtor" and
the "Secured Party", the identity or corporate structure, jurisdiction of
organization, organizational number, federal tax identification number, and
residence or chief executive office of "Debtor", and the time period for which
"Debtor" has been using or operating under said name and identity or corporate
structure without change, are as set forth in Schedule 1 of Exhibit "C" attached
hereto and by this reference made a part hereof; the mailing address of the
"Secured Party" from which information concerning the security interest may be
obtained, and the mailing address of "Debtor", are as set forth in Schedule 2
of Exhibit "C" attached hereto; and a statement indicating the types, or
describing the items, of collateral secured by this Instrument is set forth
hereinabove.
(d) Exhibit "C" correctly sets forth all names and tradenames
that Obligor has used within the last five years, and also correctly sets forth
the locations of all of the chief executive offices of Obligor over the last
five years.
(e) The Obligor hereby covenants and agrees that:
(i) Obligor shall not merge or consolidate into, or transfer
any of the Property to, any other person or entity except as permitted under the
Credit Agreement.
(ii) Obligor shall, at any time and from time to time, take
such steps as Agent may reasonably request for Agent (A) to obtain an
acknowledgment, in form and substance reasonably satisfactory to Agent, of any
bailee having possession of any of the Property, stating that the bailee holds
possession of such Property on behalf of Agent, (B) to obtain "control" of any
investment property, deposit accounts, letter-of-credit rights, or electronic
chattel paper (as such terms are defined by the UCC with corresponding
provisions thereof defining what constitutes "control" for such items of
collateral), with any agreements establishing control to be in form and
substance reasonably satisfactory to Agent, and (C) otherwise to insure the
continued perfection and priority of the Agent's security interest in any of
the Property and of the preservation of its rights therein. If Obligor shall at
any time acquire a "commercial tort claim" (as such term is defined in the UCC)
with respect to the Property or any portion thereof, Obligor shall promptly
notify Agent thereof in writing, providing a reasonable description and summary
thereof, and shall execute a supplement to this Instrument in form and
substance acceptable to Agent granting a security interest in such commercial
tort claim to Agent.
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(iii) Obligor hereby authorizes Agent, its counsel or its
representative, at any time and from time to time, to file financing statements,
amendments and continuations that describe or relate to the Property or any
portion thereof in such jurisdictions as Agent may deem necessary in order to
perfect the security interests granted by Obligor under this Instrument or any
other Loan Document, and such financing statements may contain, among other
items as Agent may deem advisable to include therein, the federal tax
identification number of Obligor, and may describe the property covered by such
financing statements as "all assets of Obligor," "all personal property of
Obligor" or words of similar effect.
1.10 Further Assurances; After-Acquired Property. At any time, and from time to
time, upon request by Agent, Obligor will make, execute and deliver or cause to
be made, executed and delivered, to Agent and, where appropriate, cause to be
recorded and/or filed and from time to time thereafter to be rerecorded and/or
refiled at such time and in such offices and places as shall be deemed necessary
by Agent, any and all such other and further deeds of trust, security
agreements, financing statements, notice filings, continuation statements,
instruments of further assurance, certificates and other documents as may, in
the reasonable opinion of Agent, be necessary in order to effectuate, complete,
or perfect, or to continue and preserve this Instrument as a first and prior
lien upon and security title in and to all of the Property, whether now owned or
hereafter acquired by Obligor. Upon any failure by Obligor so to do, Agent may
make, execute, record, file, re-record and/or refile any and all such deeds of
trust, security agreements, financing statements, continuation statements,
instruments, certificates, and documents for and in the name of Obligor and
Obligor hereby irrevocably appoints Agent the agent and attorney-in-fact of
Obligor so to do. The lien hereof will automatically attach, without further
act, to all after acquired property attached to and/or used in the operation of
the Property or any part thereof.
1.11 Expenses. Obligor will pay or reimburse Agent, upon demand therefor, for
all reasonable attorney's fees, costs and expenses incurred by Agent in any
suit, action, legal proceeding or dispute of any kind in which Lenders or Agent
is made a party or appears as party plaintiff or defendant, affecting or arising
in connection with the Secured Obligations secured hereby, this Instrument or
the interest created herein, or the Property, including, but not limited to, the
exercise of the power of sale contained in this Instrument, any condemnation
action involving the Property or any action to protect the security hereof; and
any such amounts paid by Lenders or Agent shall be added to the Secured
Obligations secured by the lien of this Instrument.
1.12 Subrogation. Agent shall be subrogated to the claims and liens of all
parties whose claims or liens are discharged or paid with the proceeds of the
Secured Obligations secured hereby.
1.13 Limit of Validity. If from any circumstances whatsoever fulfillment of any
provision of this Instrument or of the Note, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
presently prescribed by any applicable usury statute or any other applicable
law, with regard to obligations of like character and amount, then ipso facto
the obligation to be fulfilled shall be reduced to the limit of such validity,
so that in no event shall any exaction be possible under this Instrument or
under the Note that is in excess of the current limit of such validity, but such
obligation shall be fulfilled to the limit of such validity. The provisions of
this Paragraph 1.13 shall control every other provision of this Instrument and
of the Note.
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1.14 Use of Property. Obligor shall not be permitted to alter or change the
use of the Property or to abandon the Property without the prior written consent
of Agent.
1.15 Conveyance of Property. Obligor hereby acknowledges to Agent that (a) the
identity and expertise of Obligor was and continues to be a material
circumstance upon which Agent has relied in connection with, and which
constitute valuable consideration to Agent for, the extending to Obligor of the
loan evidenced by the Note, and (b) any change in such identity or expertise
could materially impair or jeopardize the security for the payment of the
Secured Obligations granted to Agent by this Instrument. Obligor therefore
covenants and agrees with Agent, as part of the consideration for the extending
to Obligor of the loans evidenced by the Note, that Obligor shall not convey,
transfer, assign, further encumber or pledge any or all of its interest in the
Property except as permitted under the Credit Agreement.
ARTICLE 2
2.01 Events of Default. The terms "Default" and "Event of Default" as used
herein shall have the following meanings:
"Default" shall mean any event which, with the giving of
notice or the lapse of time, or both, would become an Event of
Default.
"Event of Default" shall mean (a) any default in the payment
of the obligations of Obligor hereunder or under any of the
other Loan Documents (as defined in the Credit Agreement) when
the same shall become due and payable which is not cured
within any grace or notice and cure period provided in the
Credit Agreement or such other Loan Documents(for purposes of
this definition, the grace period for a monetary default where
no other period is specified is five (5) days), if any,
subject to any limitations in the Credit Agreement on the
right of Obligor to receive notices of default or (b) any
default in the performance of any other obligations of Obligor
hereunder which is not cured within any cure period provided
in the Credit Agreement (it being acknowledged by Obligor that
no such cure period is provided with respect to a failure to
maintain insurance as required in Section 1.04, any default
under Section 1.09, any default under Section 1.15, or any
default excluded from any provision for cure of defaults
contained in the Credit Agreement, the Security Documents (as
defined in the Credit Agreement) or any other agreement
evidencing or securing the Secured Obligations), or (c) any
representation or warranty of Obligor hereunder proving to be
false or incorrect in any material respect upon the date when
made or deemed to have been repeated, or (d) any default in
the performance of the obligations of Obligor or any other
Person under any of the Security Documents beyond the
expiration of any applicable notice and cure period, (e) the
occurrence of any "Event of Default" under the Credit
Agreement, or (f) except as may be permitted or required
hereby, in the Credit Agreement or in any of the other
Security Documents, any amendment to or termination of a
financing statement naming Obligor as debtor and Agent as
secured party, or any correction statement with respect
thereto, is filed in any jurisdiction by, or caused by, or at
the instance of Obligor or by, or caused by, or at the
instance of any principal, member, general partner or officer
of Obligor (collectively, "Obligor Party") without the prior
written consent of Agent; or (g) except as may be permitted or
required hereby, in the Credit Agreement or in any of the
other Security Documents, any amendment to or termination of a
financing statement naming Obligor as debtor and Agent as
secured party, or any correction statement with respect
thereto, is filed in any jurisdiction by any party other than
an Obligor Party or Agent or Agent's counsel without the prior
written consent of Agent and Obligor fails to use its best
efforts to cause the effect of such filing to be completely
nullified to the reasonable satisfaction of Agent within ten
(10) days after notice to Obligor thereof."
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2.02 Acceleration of Maturity. If an Event of Default shall have occurred and be
continuing, then the entire Secured Obligations secured hereby shall, at the
option of Agent and as permitted by the terms of the Credit Agreement,
immediately become due and payable without notice or demand, time being of the
essence of this Instrument.
2.03 Right to Enter and Take Possession.
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(a) If an Event of Default shall have occurred and be
continuing, Obligor upon demand of Agent, shall forthwith surrender to Agent
the actual possession of the Property and if, and to the extent, permitted by
law, Agent itself, or by such officers or agents as it may appoint, may enter
and take possession of all the Property without the appointment of a receiver,
or an application therefor, and may exclude Obligor and its agents and
employees wholly therefrom, and may have joint access with Obligor to the
books, papers and accounts of Obligor.
(b) If Obligor shall for any reason fail to surrender or
deliver the Property or any part thereof after such demand by Agent, Agent may
obtain a judgment or decree conferring upon Agent the right to immediate
possession or requiring Obligor to deliver immediate possession of the Property
to Agent. Obligor will pay to Agent, upon demand, all expenses of obtaining
such judgment or decree, including reasonable compensation to Agent, its
attorneys and agents; and all such expenses and compensation shall, until paid,
be secured by the lien of this Instrument.
(c) Upon every such entering upon or taking of possession,
Agent may hold, store, use, operate, manage and control the Property and
conduct the business thereof, and, from time to time (i) make all necessary and
proper maintenance, repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon and purchase or otherwise acquire additional
fixtures, personalty and other property; (ii) insure or keep the Property
insured; (iii) manage and operate the Property and exercise all the rights and
powers of Obligor to the same extent as Obligor could in its own name or
otherwise with respect to the same; and (iv) enter into any and all agreements
with respect to the exercise by others of any of the powers herein granted
Agent, all as Agent from time to time may determine to be in its best interest.
Agent may collect and receive all the rents, issues, profits and revenues from
the Property, including those past due as well as those accruing thereafter,
and, after deducting (1) all expenses of taking, holding, managing and operating
the Property (including compensation for the services of all persons employed
for such purposes); (2) the cost of all such maintenance, repairs, renewals,
replacements, additions, betterments, improvements, purchases and acquisitions;
(3) the cost of such insurance; (4) such taxes, assessments and other similar
charges as Agent may at its option pay; (5) other proper charges upon the
Property or any part thereof; and (6) the reasonable compensation, expenses and
disbursements of the attorneys and agents of Agent, Agent shall apply the
remainder of the monies and proceeds so received by Agent, in accordance with
Section 12.4 of the Credit Agreement. Agent shall have no obligation to
discharge any duties of a landlord to any tenant or to incur any liability as a
result of any exercise by Agent of any rights under this Instrument or
otherwise. Agent shall not be liable for any failure to collect rents, issues,
profits and revenues from the Property, nor shall Agent be liable to account
for any such rents, issues, profits or revenues unless actually received by
Agent.
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(d) Whenever all that is due upon the Secured Obligations and
under any of the terms, covenants, conditions and agreements of this Instrument,
shall have been paid and all Events of Default made good, Agent shall surrender
possession of the Property to Obligor, its successors or assigns. The same
right of taking possession, however, shall exist if any subsequent Event of
Default shall occur and be continuing.
2.04 Performance by Agent. If Obligor shall Default in the payment, performance
or observance of any term, covenant or condition of this Instrument, Agent may,
so long as such Default continues, at its option, pay, perform or observe the
same, and all payments made or reasonable costs or expenses incurred by Agent in
connection therewith, shall be secured hereby and shall be, upon demand,
immediately repaid by Obligor to Agent with interest thereon at the default rate
of interest set forth in Section 4.9 of the Credit Agreement (the "Default
Rate"). Agent shall be the sole judge of the necessity for any such actions and
of the reasonable amounts to be paid. Agent is hereby empowered to enter and to
authorize others to enter upon the Land or any part thereof for the purpose of
performing or observing any such defaulted term, covenant or condition without
thereby becoming liable to Obligor or any person in possession holding under
Obligor.
2.05 Receiver. If an Event of Default shall have occurred and be continuing,
Agent, upon application to a court of competent jurisdiction, shall be entitled
as a matter of strict right without notice and without regard to the occupancy
or value of any security for the Secured Obligations secured hereby or the
solvency of any party bound for its payment, to the appointment of a receiver to
take possession of and to operate the Property and to collect and apply the
rents, issues, profits and revenues thereof. The receiver shall have all of the
rights and powers permitted under the laws of the State of North Carolina.
Obligor will pay to Agent upon demand all reasonable expenses, including
receiver's fees, attorney's fees, costs and agent's compensation, incurred
pursuant to the provisions of this Paragraph 2.05; and all such expenses shall
be secured by this Instrument.
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2.06 Enforcement.
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(a) If an Event of Default shall have occurred and be
continuing, Agent, at its option, may direct Trustee to (and the Trustee shall)
sell the Property or any part of the Property in accordance with North Carolina
General Statutes Section 45.1 et seq. (or any subsequently inactive statute
governing foreclosure or power of sale) at public sale or sales at the usual
place for conducting sales in the county in which the Land or any part of the
Land is situated, to the highest bidder for cash, in order to pay the Secured
Obligations secured hereby and accrued interest thereon and insurance premiums,
liens, assessments, taxes and charges, including utility charges, if any, with
accrued interest thereon, and all expenses of the sale and of all proceedings
in connection therewith, including actual attorney's fees, if incurred, after
advertising the time, place and terms of sale at least once a week for at least
two (2) consecutive weeks immediately preceding such sale (but without regard
to the number of days) in a newspaper published and qualified for legal
advertising in said county. At any such public sale, Agent may direct the
Trustee to (and the Trustee shall) execute and deliver to the purchaser a
conveyance of the Property or any part of the Property in fee simple, and to
this end, Obligor hereby constitutes and appoints the Trustee the agent and
attorney-in-fact of Obligor to make such sale and conveyance, and thereby to
divest Obligor of all right, title or equity that Obligor 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 and doings of said Trustee, as 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 Obligor. 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 Secured Obligations secured hereby and shall not be exhausted by one
exercise thereof but may be exercised until full payment of all Secured
Obligations secured hereby.
(b) If an Event of Default shall have occurred and be
continuing, Agent may, in addition to and not in abrogation of the rights
covered under subparagraph (a) of this Paragraph 2.06, either with or without
entry or taking possession as herein provided or otherwise, proceed by a suit
or suits in law or in equity or by any other appropriate proceeding or remedy
(i) to enforce payment of the Secured Obligations or the performance of any
term, covenant, condition or agreement of this Instrument or any other right,
and (ii) to pursue any other remedy available to it, all as Agent shall
determine most effectual for such purposes.
2.07 Purchase by Agent. Upon any foreclosure sale, Agent, on behalf of the
Lenders, may bid for and purchase the Property and shall be entitled to apply
all or any part of the Secured Obligations secured hereby as a credit to the
purchase price.
2.08 Application of Proceeds of Sale. The proceeds received by the Trustee as a
result of a foreclosure sale of the Property or the exercise of any other rights
or remedies hereunder, shall be applied in the manner provided for in Section
12.4 of the Credit Agreement.
2.09 Obligor as Tenant Holding Over. In the event of any such foreclosure sale
by the Trustee, Obligor shall be deemed a tenant holding over and shall
forthwith deliver possession to the purchaser or purchasers at such sale or be
summarily dispossessed according to provisions of law applicable to tenants
holding over.
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2.10 Waiver of Appraisement, Valuation, Stay and Extension Laws. Obligor agrees
to the full extent permitted by law, that in case of a Default or Event of
Default on the part of Obligor hereunder, neither Obligor nor anyone claiming
through or under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension, homestead or exemption laws now or
hereafter in force, in order to prevent or hinder the enforcement or foreclosure
of this Instrument, or the absolute sale of the Property, or the final and
absolute putting into possession thereof, immediately after such sale, of the
purchasers thereat, and Obligor, for itself and all who may at any time claim
through or under it, hereby waives to the full extent that it may lawfully so
do, the benefit of all such laws, and any and all right to have the assets
comprised in the security intended to be created hereby marshaled upon any
foreclosure of the lien hereof.
2.11 Waiver of Homestead. Obligor hereby waives and renounces all homestead and
exemption rights provided for by the Constitution and the 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.
2.12 Leases. The Agent, at its option, is authorized to direct the Trustee to
(and in such event, the Trustee shall) foreclose this Instrument subject to the
rights of any tenants of the Property, and the failure to make any such tenants
parties to any such foreclosure proceedings and to foreclose their rights will
not be, nor be asserted to be by Obligor, a defense to any proceedings
instituted by Agent to collect the sums secured hereby.
2.13 Discontinuance of Proceedings and Restoration of the Parties. In case the
Trustee or Agent shall have proceeded to enforce any right, power or remedy
under this Instrument by foreclosure, entry or otherwise, and such proceedings
shall have been discontinued or abandoned for any reason, or shall have been
determined adversely to Agent or Trustee, then and in every such case Obligor,
Trustee and Agent shall be restored to their former positions and rights
hereunder, and all rights, powers and remedies of Agent and Trustee shall
continue as if no such proceeding had been taken.
2.14 Remedies Cumulative. No right, power or remedy conferred upon or reserved
to the Trustee or Agent by this Instrument is intended to be exclusive of any
other right, power or remedy, but each and every such right, power and remedy
shall be cumulative and concurrent and shall be in addition to any other right,
power and remedy given hereunder or now or hereafter existing at law or in
equity or by statute.
2.15 Waiver.
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(a) No delay or omission of Agent or Trustee or of any Lender
to exercise any right, power or remedy accruing upon any Default shall exhaust
or impair any such right, power or remedy or shall be construed to be a waiver
of any such Default, or acquiescence therein; and every right, power and remedy
given by this Instrument to Agent and Trustee may be exercised from time to
time and as often as may be deemed expedient by Agent. No consent or waiver,
expressed or implied, by Agent to or of any breach or Default by Obligor in the
performance of the obligations thereof hereunder shall be deemed or construed
to be a consent or waiver to or of any other breach or Default in the
performance of the same or any other obligations of Obligor hereunder. Failure
on the part of Lenders to complain of any act or failure to act or to declare
an Event of Default, irrespective of how long such failure continues, shall not
constitute a waiver by any Lender of its rights hereunder or impair any rights,
powers or remedies consequent on any breach or Default by Obligor.
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(b) If Lenders or Agent on behalf of the Lenders, (i) grant
forbearance or an extension of time for the payment of any sums secured hereby;
(ii) take other or additional security for the payment of any sums secured
hereby; (iii) waive or do not exercise any right granted herein or in the Note,
the Credit Agreement or any other Loan Documents (as defined in the Credit
Agreement); (iv) release any part of the Property from the lien of this
Instrument or otherwise changes any of the terms, covenants, conditions or
agreements of the Note or this Instrument; (v) consent to the filing of any
map, plat or replat affecting the Property; (vi) consent to the granting of
any easement or other right affecting the Property; or (vii) make or consent to
any agreement subordinating the lien hereof, any such act or omission shall not
release, discharge, modify, change or affect the original liability under the
Note, the Credit Agreement, this Instrument or any other obligation of Obligor
or any subsequent purchaser of the Property or any part thereof, or any maker,
co-signer, endorser, surety or guarantor; nor shall any such act or omission
preclude Agent or Trustee from exercising any right, power or privilege herein
granted or intended to be granted in the event of any Default then made or of
any subsequent Default; nor, except as otherwise expressly provided in an
instrument or instruments executed by Agent, shall the lien of this Instrument
be altered thereby. In the event of the sale or transfer by operation of law or
otherwise of all or any part of the Property, Agent, without notice, is hereby
authorized and empowered to deal with any such vendee or transferee with
reference to the Property or the Secured Obligations secured hereby, or with
reference to any of the terms, covenants, conditions or agreements hereof, as
fully and to the same extent as it might deal with the original parties hereto
and without in any way releasing or discharging any liabilities, obligations or
undertakings.
2.16 Suits to Protect the Property. Agent shall have power (a) to institute and
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Property by any acts which may be unlawful or in violation of
this Instrument, (b) to preserve or protect its interest in the Property and in
the rents, issues, profits and revenues arising therefrom, 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 would
materially impair the security hereunder or be prejudicial to the interest of
Lenders.
2.17 Agent May File Proofs of Claim. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Obligor, its creditors or its property, Agent, to
the extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have the claims of
Agent allowed in such proceedings for the entire amount due and payable by
Obligor under this Instrument at the date of the institution of such proceedings
and for any additional amount which may become due and payable by Obligor
hereunder after such date.
20
2.18 WAIVER OF OBLIGOR'S RIGHTS. BY EXECUTION OF THIS INSTRUMENT AND BY
INITIALING THIS PARAGRAPH 2.18, OBLIGOR EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT OF
AGENT AND/OR LENDERS TO ACCELERATE THE SECURED OBLIGATIONS AND THE POWER OF
ATTORNEY GIVEN HEREIN TO TRUSTEE TO SELL THE PROPERTY BY NONJUDICIAL FORECLOSURE
UPON DEFAULT BY OBLIGOR AND TO THE EXTENT ALLOWED BY NORTH CAROLINA LAW 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 INSTRUMENT;
(B) WAIVES, TO THE EXTENT ALLOWABLE UNDER FEDERAL OR STATE LAW, ANY AND ALL
RIGHTS WHICH OBLIGOR MAY HAVE UNDER THE CONSTITUTION OF THE UNITED STATES
(INCLUDING, WITHOUT LIMITATION, THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF),
THE VARIOUS PROVISIONS OF THE CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON
OF ANY OTHER APPLICABLE LAW, TO NOTICE AND TO JUDICIAL HEARING PRIOR TO THE
EXERCISE BY AGENT AND TRUSTEE OF ANY RIGHT OR REMEDY HEREIN PROVIDED TO AGENT OR
TRUSTEE, EXCEPT SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO BE PROVIDED
IN THIS INSTRUMENT; (C) ACKNOWLEDGES THAT OBLIGOR HAS READ THIS INSTRUMENT AND
ANY AND ALL QUESTIONS REGARDING THE LEGAL EFFECT OF THIS INSTRUMENT AND ITS
PROVISIONS HAVE BEEN EXPLAINED FULLY TO OBLIGOR AND OBLIGOR HAS CONSULTED WITH
COUNSEL OF OBLIGOR'S CHOICE PRIOR TO EXECUTING THIS INSTRUMENT; AND (D)
ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF OBLIGOR HAVE BEEN MADE
KNOWINGLY, INTENTIONALLY AND WILLINGLY BY OBLIGOR AS PART OF A BARGAINED FOR
LOAN TRANSACTION.
INITIALED BY OBLIGOR:
-----------
2.19 Indemnification; Subrogation; Waiver of Offset.
----------------------------------------------
(a) Obligor shall indemnify, defend and hold Trustee, Agent
and the Lenders harmless for, from and against any and all liability, Secured
Obligations, losses, damages, penalties, claims, actions, suits, costs and
expenses (including Agent's and Trustee's reasonable attorneys' fees, together
with reasonable appellate counsel fees, if any) of whatever kind or nature
which may be asserted against, imposed on or incurred by Agent, the Trustee and
the Lenders in connection with the Secured Obligations, this Instrument, the
Property, or any part thereof, or the exercise by Agent or Trustee of any rights
or remedies granted to them under this Instrument; provided, however, that
nothing herein shall be construed to obligate Obligor to indemnify, defend and
hold harmless Agent, Trustee and the Lenders for, from and against any and all
liabilities, Secured Obligations, losses, damages, penalties, claims, actions,
suits, costs and expenses asserted against, imposed on or incurred by Agent,
Trustee or a Lender by reason of Agent's, Trustee's or such Lender's willful
misconduct or gross negligence.
21
(b) If Agent, Trustee or a Lender is made a party defendant to
any litigation or any claim is threatened or brought against Agent, Trustee or a
Lender concerning the Secured Obligations, this Instrument, the Property, or any
part thereof, or any interest therein, or the construction, maintenance,
operation or occupancy or use thereof, then Obligor shall indemnify, defend and
hold Agent, Trustee and the Lenders harmless for, from and against all liability
by reason of said litigation or claims, including reasonable attorneys' fees
(together with reasonable appellate counsel fees, if any) and expenses incurred
by Agent, Trustee and the Lenders in any such litigation or claim, whether or
not any such litigation or claim is prosecuted to judgment; provided, however,
that nothing in this Section 2.20(b) shall be construed to obligate Obligor to
indemnify, defend and hold harmless Agent, Trustee or a Lender for, from and
against any and all liabilities or claims imposed on or incurred by Agent,
Trustee or a Lender by reason of Agent's, Trustee's or such Lender's willful
misconduct or gross negligence. If Agent commences an action against Obligor to
enforce any of the terms hereof or to prosecute any breach by Obligor of any of
the terms hereof or to recover any sum secured hereby, Obligor shall pay to
Agent its reasonable attorneys' fees (together with reasonable appellate
counsel, fees, if any) and expenses. The right to such attorneys' fees (together
with reasonable appellate counsel fees, if any) and expenses shall be deemed to
have accrued on the commencement of such action, and shall be enforceable
whether or not such action is prosecuted to judgment. If Obligor breaches any
term of this Instrument, Agent and Trustee may engage the services of an
attorney or attorneys to protect their rights hereunder, and in the event of
such engagement following any breach by Obligor, Obligor shall pay Agent and
Trustee reasonable attorneys' fees (together with reasonable appellate counsel
fees, if any) and expenses incurred by Agent and Trustee, whether or not an
action is actually commenced against Obligor by reason of such breach. All
references to "attorneys" in this Subsection and elsewhere in this Instrument
shall include without limitation any attorney or law firm engaged by Agent,
Trustee or their in-house counsel, and all references to "fees and expenses" in
this Subsection and elsewhere in this Instrument shall include without
limitation any reasonable fees of such attorney or law firm and any allocation
charges and allocation costs of Agent's and Trustee's in-house counsel.
(c) A waiver of subrogation shall be obtained by Obligor from
its insurance carrier and, consequently, Obligor waives any and all right to
claim or recover against Agent, its officers, employees, agents and
representatives, for loss of or damage to Obligor, the Property, Obligor's
property or the property of others under Obligor's control from any cause
insured against or required to be insured against by the provisions of this
Instrument.
(d) ALL SUMS PAYABLE BY OBLIGOR HEREUNDER SHALL BE PAID
WITHOUT NOTICE (EXCEPT AS MAY OTHERWISE BE PROVIDED HEREIN), DEMAND,
COUNTERCLAIM, SETOFF, DEDUCTION OR DEFENSE AND WITHOUT ABATEMENT, SUSPENSION,
DEFERMENT, DIMINUTION OR REDUCTION, AND THE SECURED OBLIGATIONS AND LIABILITIES
OF OBLIGOR HEREUNDER SHALL IN NO WAYBE RELEASED, DISCHARGED OR OTHERWISE
AFFECTED BY REASON OF: (I) ANY DAMAGE TO OR DESTRUCTION OF OR ANY CONDEMNATION
OR SIMILAR TAKING OF THE PROPERTY OR ANY PART THEREOF; (II) ANY RESTRICTION OR
PREVENTION OF OR INTERFERENCE WITH ANY USE OF THE PROPERTY OR ANY PART THEREOF;
(III) ANY TITLE DEFECT OR ENCUMBRANCE OR ANY EVICTION FROM THE LAND OR THE
IMPROVEMENTS ON THE LAND OR ANY PART THEREOF BY TITLE PARAMOUNT OR OTHERWISE;
(IV) ANY BANKRUPTCY, INSOLVENCY, REORGANIZATION, COMPOSITION, ADJUSTMENT,
DISSOLUTION, LIQUIDATION, OR OTHER LIKE PROCEEDING RELATING TO AGENT, OR ANY
ACTION TAKEN WITH RESPECT TO THIS INSTRUMENT BY ANY TRUSTEE OR RECEIVER OF
AGENT, OR BY ANY COURT, IN SUCH PROCEEDING; (V) ANY CLAIM WHICH OBLIGOR HAS, OR
MIGHT HAVE, AGAINST AGENT; (VI) ANY DEFAULT OR FAILURE ON THE PART OF AGENT TO
PERFORM OR COMPLY WITH ANY OF THE TERMS HEREOF OR OF ANY OTHER AGREEMENT WITH
OBLIGOR; OR (VII) ANY OTHER OCCURRENCE WHATSOEVER, WHETHER SIMILAR OR DISSIMILAR
TO THE FOREGOING, WHETHER OR NOT OBLIGOR SHALL HAVE NOTICE OR KNOWLEDGE OF ANY
OF THE FOREGOING. OBLIGOR WAIVES ALL RIGHTS NOW OR HEREAFTER CONFERRED BY
STATUTE OR OTHERWISE TO ANY ABATEMENT, SUSPENSION, DEFERMENT, DIMINUTION, OR
REDUCTION OF ANY SUM SECURED HEREBY AND PAYABLE BY OBLIGOR.
22
2.20 Substitution of Trustee. It is agreed that Agent, on behalf of the Lenders,
may at any time or times, at the pleasure of Agent, appoint a successor or
substitute trustee in the place of the Trustee or any substitute trustee
theretofore appointed, by an instrument in writing and properly recorded, and
any person so appointed shall have all the powers conferred herein upon the
Trustee herein named, and it is agreed that said power of substitution may be
exercised as frequently and at such times as Agent (or any successor agent) or
the holder(s) of the Note may desire. It is agreed that the power of sale
conferred upon the Trustee is conferred upon the above-named Trustee and upon
its successors or any substitute trustee as herein provided, and in the event
the Trustee advertises the Property for sale under this Instrument, said
Trustee, or any substitute trustee thereafter appointed, may complete the sale
whether advertised by said Trustee or any substitute trustee, and deeds may be
executed accordingly by the Trustee or any substitute trustee actually making
the sale.
ARTICLE 3
3.01 Successors and Assigns. This Instrument shall inure to the benefit of and
be binding upon Obligor, Trustee and Agent and their respective heirs,
executors, legal representatives, successors and assigns. Whenever a reference
is made in this Instrument to Obligor, Trustee or Agent such reference shall be
deemed to include a reference to the heirs, executors, legal representatives,
successors and assigns of Obligor, Trustee or Agent.
3.02 Terminology. All personal pronouns used in this Instrument whether used in
the masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural, and vice versa. Titles and Articles are for
convenience only and neither limit nor amplify the provisions of this Instrument
itself, and all references herein to Articles, Paragraphs or subparagraphs
thereof, shall refer to the corresponding Articles, Paragraphs or subparagraphs
thereof, of this Instrument unless specific reference is made to such Articles,
Paragraphs or subparagraphs thereof of another document or instrument.
23
3.03 Severability. If any provision of this Instrument or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Instrument and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
3.04 Applicable Law. This Instrument will be governed by the substantive laws of
the State of North Carolina, without giving effect to its principles of choice
of law or conflicts of law (except with respect to choice of law or conflicts of
law provisions of its Uniform Commercial Code), and the laws of the United
States, unless an agreement which is contained in a Loan Document other than
this Instrument specifically designates the laws of a different state to govern
all or certain provisions pertaining to the creation or enforcement of security
interests in personal property or particular items or types of personal
property, in which case the laws of such designated state shall govern to the
extent provided. Should any obligation or remedy under this Instrument be
invalid or unenforceable pursuant to the laws provided herein to govern, the
laws of any other state referred to herein or of another state whose laws can
validate and apply thereto shall govern.
3.05 Notices. Except as otherwise provided herein, any notice or other
communication required hereunder shall be in writing, and shall be deemed to
have been validly served, given or delivered the next succeeding Business Day
(as defined in the Credit Agreement) after timely delivery to the courier, if
sent by overnight courier; at the time delivered by hand, if personally
delivered; or when receipt is acknowledged, if (i) telecopied (followed by
delivery of written copy thereof sent by overnight courier on the same day as
such notice is given), or (ii) sent by registered or certified mail, return
receipt requested, addressed to Obligor or Agent as follows:
If to Obligor:
Xxxxx Equity, Inc.
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy Number: (000) 000-0000
If to Agent:
Fleet National Lender, as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Structured Real Estate
24
With a copy to:
Fleet National Lender, as Agent
Xxxxx 000
000 Xxxxxxxxx Xxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Director
Telecopy No.: (000) 000-0000
or, to such other address as any party may designate for itself by like notice.
3.06 Conflict with Credit Agreement Provisions. Obligor hereby acknowledges and
agrees that, in the event of any conflict between the terms hereof and the terms
of the Credit Agreement, the terms of the Credit Agreement shall control.
3.07 Assignment. This Instrument is assignable by Agent, and any assignment
hereof by Agent shall operate to vest in the assignee all rights and powers
herein conferred upon and granted to Agent.
3.08 Time of the Essence. Time is of the essence with respect to each and every
covenant, agreement and obligation of Obligor under this Instrument, the Note,
the Credit Agreement and any and all other instruments now or hereafter
evidencing, securing or otherwise relating to the Secured Obligations.
[SIGNATURES CONTINUED ON NEXT PAGE]
25
IN WITNESS WHEREOF, Obligor has executed this Instrument under seal, as of the
day and year first above written.
XXXXX EQUITY, INC., a Florida corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxx
Printed Name: Xxxxxxxxxxx X. Xxxxxx
Printed Title: Senior Vice President
STATE OF GA
-----------------
COUNTY OF De Xxxx
-----------------
I, Xxxxxx X. Xxxxxxx , a Notary Public of the county and state aforesaid,
do certify that Xxxxxxxxxx X. Xxxxxx personally came before me this day and
acknowledged that he/she is SVP President of XXXXX EQUITY, INC., a Florida
corporation, and that he/she, as SVP , being authorized to do so, executed the
foregoing on behalf of the corporation. WITNESS my hand and notarial seal or
stamp, this the 27 day of Dec. .
/s/ Xxxxxx X. Xxxxxxx
---------------------------
Notary Public
My commission expires:
26
A-1
128222.1
EXHIBIT "A"
Description of Land
27
128222.1
EXHIBIT "B"
Permitted Encumbrances
Permitted encumbrances are such matters as are shown on Schedule B-1 to the
Title Insurance Policy issued by Lawyers Title Insurance Corporation to the
Agent in connection with this Instrument, dated the date of recordation of this
Instrument issued pursuant to Lawyers Title Insurance Corporation Commitment
Nos. 01-001299 and 01-001300.
B-1
128222.1
EXHIBIT "C"
Schedule 1
(Description of "Debtor" and "Secured Party")
A. Debtor:
------
XXXXX EQUITY, INC., a corporation organized under the laws of the State of
Florida. Debtor has been using or operating under said name and identity or
corporate structure without change since June 21, 1988.
Names and Tradenames used within last five years: None.
Location of all chief executive offices over last five years: (i) 0000
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, and (ii)
000 Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000.
Organizational Number: K27001
Federal Tax Identification Number: 00-0000000
B. Secured Party:
-------------
FLEET NATIONAL BANK, a national banking association, as Agent.
Schedule 2
(Notice Mailing Addresses of "Debtor" and "Secured Party")
A. The mailing address of Debtor is:
XXXXX EQUITY, INC.
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
B. The mailing address of Secured Party is:
FLEET NATIONAL BANK, as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Structured Real Estate
C-1
