EXHIBIT 10(XXX)
Loan No. 5922696-001
PROMISSORY NOTE
(▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇)
$502,500 January __, 1997
FOR VALUE RECEIVED, GRAPHIC INDUSTRIES, INC., a Georgia corporation
("BORROWER"), promises to pay to the order of MetLife Capital Financial
Corporation ("METLIFE") at METLIFE's office at ▇▇▇▇▇ ▇.▇. 4th St., Suite 500,
Bellevue, Washington 98004, attention: Real Estate Department, or at such other
address as the holder hereof may from time to time designate in writing, the
principal sum of FIVE HUNDRED TWO THOUSAND FIVE HUNDRED DOLLARS ($502,500)
together with interest from the date the proceeds of the loan (the "Loan")
evidenced by this Promissory Note (this "Note") are initially disbursed until
maturity on the principal balance from time to time remaining unpaid hereon at
the rate of eight and seventy-five hundredths percent (8.75%) per annum
(computed on the basis of a 360-day year of twelve (12) consecutive thirty (30)-
day months) in installments as follows: (i) interest only in advance at the
rate of $122.14 per day shall be due and payable on the date the proceeds of the
Loan are initially disbursed to or for the benefit of BORROWER (including,
without limitation, disbursement into an escrow for the benefit of BORROWER) for
the period beginning on the date of such disbursement and ending on the last day
of the month during which such disbursement occurs; and (ii) one hundred
seventy-nine (179) installments of principal and interest in the amount of Five
Thousand Twenty-Two and twenty-three hundredths Dollars ($5,022.23) each shall
be payable commencing on the first day of the second month following the month
in which the proceeds of the loan evidenced by this Note are initially disbursed
and continuing on the first day of each and every succeeding month until the
first day of the one hundred eightieth (180th) month following the date the
proceeds of the Loan are initially disbursed at which time all then unpaid
principal and interest hereon shall be due and payable.
If any payment shall not be paid when due and shall remain unpaid for
ten (10) days, BORROWER shall pay an additional charge equal to five percent
(5.00%) of the delinquent payment or the highest additional charge permitted by
law, whichever is less.
Upon not less than thirty (30) days' advance written notice to METLIFE
at any time after the fifth (5th) anniversary of the due date of the first
monthly principal and interest payment due under this Note, and upon payment of
the Prepayment Premium, BORROWER shall have the right to prepay all, but not
less than all, of the outstanding balance of this Note on any regularly
scheduled principal and interest payment date. The Prepayment Premium shall be
determined by (i) calculating the decrease (expressed in basis points) in the
current weekly average yield of ten (10)-year U.S. Treasury Constant Maturities
(as published in Federal Reserve Statistical Release H.15 [519]) (the "Index")
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from November 8, 1996, to the Friday immediately preceding the week in which the
prepayment is made, (ii) dividing the decrease by 100, (iii) multiplying the
result by the following described applicable premium factor (the "Premium
Factor"), and (iv) multiplying the product by the principal balance to be
prepaid. If the Index is unchanged or has increased from November 8, 1996, to
the Friday immediately preceding the prepayment date, no Prepayment Premium
shall be due. The Premium Factor shall be the amount shown on the following
chart for the month in which prepayment occurs:
No. Mos. Premium
Remaining (Years) Factor
--------- --------- -------
180 - 169 (15) .073
168 - 157 (14) .069
156 - 145 (13) .064
144 - 133 (12) .059
132 - 121 (11) .054
120 - 109 (10) .049
108 - 97 ( 9) .044
96 - 85 ( 8) .039
84 - 73 ( 7) .035
72 - 61 ( 6) .030
60 - 49 ( 5) .025
48 - 37 ( 4) .020
36 - 25 ( 3) .015
24 - 13 ( 2) .010
12 - 1 ( 1) .005
If the Federal Reserve Board ceases to publish Statistical Release H.15 [519],
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then the decrease in the weekly average yield of ten (10)-year U.S. Treasury
Constant Maturities will be determined from another source designated by
METLIFE. Voluntary prepayment prior to the fifth (5th) anniversary of the due
date of the first monthly principal and interest payment due under this Note
will be permitted only in the event of a sale of the Property (as hereinafter
defined) to a bona-fide third party and only upon payment of the Prepayment
Premium set forth above.
If METLIFE at any time accelerates this Note after an Event of Default
(defined below), then BORROWER shall be obligated to pay the Prepayment Premium
in accordance with the foregoing schedule. The Prepayment Premium shall not be
payable with respect to condemnation awards or insurance proceeds from fire or
other casualty which METLIFE applies to prepayment, nor with respect to
▇▇▇▇▇▇▇▇'s prepayment of the Note in full during the last three (3) months of
the term of this Note unless an Event of Default has occurred. BORROWER
expressly acknowledges that such Prepayment Premium is not a penalty but is
intended solely to compensate METLIFE for the loss of its bargain and the
reimbursement of internal expenses and administrative fees and expenses incurred
by METLIFE.
BORROWER shall be liable on this Note and on all the representations,
warranties, indemnities and covenants in the Deed to Secure Debt, Security
Agreement, and Assignment of Leases and Rents ("Deed to Secure Debt") covering
the property (the "Property") securing this Note and all other documents
executed or delivered in connection herewith (the "Loan Documents").
Each of the following shall constitute an Event of Default ("Event of
Default") hereunder and under the Deed to Secure Debt executed contemporaneously
herewith:
(a) Failure of or refusal by ▇▇▇▇▇▇▇▇ to make any payment of
principal, interest, or Prepayment Premium upon this Note when due, and such
failure or refusal shall continue for a period of ten (10) days after written
notice is given to BORROWER by METLIFE specifying such failure; or
(b) Failure of BORROWER within the time required by the Deed to Secure
Debt to make any payment for taxes, insurance or for reserves for such payments,
or any other payment necessary to prevent filing of or discharge of any lien,
and such failure shall continue for a period of ten (10) days after written
notice is given to BORROWER by METLIFE specifying such failure; or
(c) Failure by ▇▇▇▇▇▇▇▇ to observe or perform any obligations of
BORROWER to METLIFE on or with respect to any transactions, debts, undertakings
or agreements other than the transaction evidenced by this Note following the
giving of any required notice and the expiration of any applicable period of
grace; or
(d) Failure of BORROWER to make any payment or perform any obligation
under any superior liens or encumbrances on the Property, within the time
required thereunder, or commencement of any suit or other action to foreclose
any superior liens or encumbrances; or
(e) Failure by ▇▇▇▇▇▇▇▇ to observe or perform any of its obligations
under any of the lease agreements covering the Property; or
(f) The Property is transferred or any agreement to transfer any part
or interest in the Property in any manner whatsoever is made or entered into
without the prior written consent of METLIFE, except as specifically
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allowed under the Deed to Secure Debt, including without limitation creating or
allowing any liens on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER or Southern Signatures, Inc. of a voluntary
petition in bankruptcy or filing by BORROWER or Southern Signatures, Inc. of any
petition or answer seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, or similar relief for itself under any
present or future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors, or the seeking, consenting
to, or acquiescing by BORROWER or Southern Signatures, Inc. in the appointment
of any trustee, receiver, custodian, conservator or liquidator for BORROWER or
Southern Signatures, Inc., any part of the Property, or any of the income or
rents of the Property, or the making by BORROWER or Southern Signatures, Inc. of
any general assignment for the benefit of creditors, or the inability of or
failure by ▇▇▇▇▇▇▇▇ or Southern Signatures, Inc. to pay its debts generally as
they become due, or the insolvency on a balance sheet basis or business failure
of BORROWER or Southern Signatures, Inc., or the making or suffering of a
preference within the meaning of federal bankruptcy law or the making of a
fraudulent transfer under applicable federal or state law, or concealment by
BORROWER or Southern Signatures, Inc. of any of its property in fraud of
creditors, or the imposition of a lien upon any of the property of BORROWER or
Southern Signatures, Inc. which is not discharged in the manner permitted by the
Deed to Secure Debt, or the giving of notice by BORROWER or Southern Signatures,
Inc. to any governmental body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER or Southern Signatures, Inc.
seeking any reorganization, arrangement, composition, readjustment, liquidation,
or similar relief under any present or future federal, state or other law or
regulation relating to bankruptcy, insolvency or other relief for debts, or the
appointment of any trustee, receiver, custodian, conservator or liquidator of
BORROWER or Southern Signatures, Inc., of any part of the Property or of any of
the income or rents of the Property, unless such petition shall be dismissed
within sixty (60) days after such filing, but in any event prior to the entry of
an order, judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or
termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net
worth of BORROWER or any of the guarantors of the indebtedness evidenced by this
Note from the assets, liabilities or net worth of BORROWER or any of the
guarantors of the indebtedness evidenced by this Note previously disclosed to
METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by
or on behalf of BORROWER under this Note, the Deed to Secure Debt, or any of the
Loan Documents shall prove to have been false or misleading in any material
respect; or
(l) Failure of BORROWER to observe or perform any other covenant or
condition contained in this Note and such default shall continue for thirty (30)
days after notice is given to BORROWER specifying the nature of the failure. No
notice of default and no opportunity to cure shall be required if during the
prior twelve (12) months METLIFE has already sent a notice to BORROWER
concerning default in performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation
under the Deed to Secure Debt or any other Loan Document when such observance or
performance is due, and such failure shall continue beyond the applicable cure
period set forth in such Loan Document, or if the default cannot be cured within
such applicable cure period, BORROWER fails within such time to commence and
pursue curative action with reasonable diligence or fails at any time after
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expiration of such applicable cure period to continue with reasonable diligence
all necessary curative actions. No notice of default and no opportunity to cure
shall be required if during the prior twelve (12) months METLIFE has already
sent a notice to BORROWER concerning default in performance of the same
obligation; or
(n) ▇▇▇▇▇▇▇▇'s abandonment of the Property; or
(o) Any of the foregoing events occur with respect to any tenant of
the Property, with respect to any guarantor of any of BORROWER's obligations in
connection with the indebtedness evidenced by this Note or with respect to any
guarantor of any tenant's obligations relating to the Property, or such
guarantor dies or becomes incompetent; or
(p) The occurrence of any default under any of the documents
evidencing or securing (i) METLIFE Loan No. 5905292, (ii) METLIFE Loan No.
5905392, (iii) METLIFE Loan No. 5903393, (iv) METLIFE Loan No. 5904594 or (v)
METLIFE Loan No. 5909794, (vi METLIFE Loan No. 5922796, (vii) METLIFE Loan No.
5922896, or (viii) any other indebtedness with Borrower or any of the guarantors
of the Indebtedness which is now or hereafter owed to METLIFE.
Upon the occurrence of any of the foregoing events of default, METLIFE
shall have the option to declare the entire amount of principal and interest due
under this Note immediately due and payable without notice or demand, and
METLIFE may exercise any of its rights under this Note and any document executed
or delivered herewith. After acceleration or maturity, BORROWER shall pay
interest on the outstanding principal balance of this Note at the rate of five
percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in
effect from time to time, or fifteen percent (15.00%) per annum, whichever is
higher, provided that such interest rate shall not exceed the maximum interest
rate permitted by law.
All payments of the principal and interest on this Note shall be made
in coin or currency of the United States of America which at the time shall be
the legal tender for the payment of public and private debts.
If this Note is placed in the hands of an attorney for collection,
▇▇▇▇▇▇▇▇ agrees to pay reasonable attorneys' fees and costs incurred by METLIFE
in connection therewith, and in the event suit or action is instituted to
enforce or interpret this Note (including without limitation efforts to modify
or vacate any automatic stay or injunction), the prevailing party shall be
entitled to recover all expenses reasonably incurred at, before or after trial
and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding,
or in connection with post-judgment collection efforts, including, without
limitation, attorneys' fees, witness fees (expert and otherwise), deposition
costs, copying charges and other expenses.
This Note shall be governed and construed in accordance with the laws
of the State of Georgia applicable to contracts made and to be performed therein
(excluding choice-of-law principles). BORROWER hereby irrevocably submits to
the jurisdiction of any state or federal court sitting in Georgia in any action
or proceeding brought to enforce or otherwise arising out of or relating to this
Note, and hereby waives any objection to venue in any such court and any claim
that such forum is an inconvenient forum.
This Note is given in a commercial transaction for business purposes.
This Note may be declared due prior to its expressed maturity date,
all in the events, on the terms, and in the manner provided for in the Deed to
Secure Debt.
BORROWER and all sureties, endorsers, guarantors and other parties now
or hereafter liable for the payment of this Note, in whole or in part, hereby
severally (i) waive demand, notice of demand, presentment for payment, notice of
nonpayment, notice of default, protest, notice of protest, notice of intent to
accelerate, notice of acceleration and all other notices, and further waive
diligence in collecting this Note or in enforcing any of the security for this
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Note; (ii) agree to any substitution, subordination, exchange or release of any
security for this Note or the release of any party primarily or secondarily
liable for the payment of this Note; (iii) agree that METLIFE shall not be
required to first institute suit or exhaust its remedies hereon against BORROWER
or others liable or to become liable for the payment of this Note or to enforce
its rights against any security for the payment of this Note; and (iv) consent
to any extension of time for the payment of this Note, or any installment
hereof, made by agreement by METLIFE with any person now or hereafter liable for
the payment of this Note, even if BORROWER is not a party to such agreement.
All agreements between BORROWER and METLIFE, 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 final maturity
of this Note or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to METLIFE exceed the maximum amount permissible under
the applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to METLIFE in excess of the maximum amount permissible
under applicable law, the interest payable to METLIFE shall be reduced to the
maximum amount permissible under applicable law; and if from any circumstance
METLIFE shall ever receive anything of value deemed interest by applicable law
in excess of the maximum amount permissible under applicable law, an amount
equal to the excessive interest or if such excessive amount of interest exceeds
the unpaid balance of principal hereof, such excess shall be refunded to
BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the
extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full period (including any renewal or extension) until
payment in full of the principal so that the interest hereon for such full
period shall not exceed the maximum amount permissible under applicable law.
METLIFE expressly disavows any intent to contract for, charge or receive
interest in an amount which exceeds the maximum amount permissible under
applicable law. This paragraph shall control all agreements between BORROWER
and METLIFE.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD
BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE.
NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT
MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT
ONLY BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has caused this Note to be executed by
its duly authorized officers as of the year and day first written above.
BORROWER:
GRAPHIC INDUSTRIES, INC.,
a Georgia corporation
By:____________________________________
▇▇▇▇ ▇. ▇▇▇▇, III, Chairman & CEO
Attest:_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary
[SEAL]
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Prepared by and after
recording return to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
MetLife Capital Financial Corporation
Loan Number: 5922696-001
DEED TO SECURE DEBT, SECURITY AGREEMENT,
AND ASSIGNMENT OF LEASES AND RENTS,
(▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇)
THIS DEED TO SECURE DEBT, SECURITY AGREEMENT, AND ASSIGNMENT OF LEASES AND
RENTS (herein "Deed") is made as of January __, 1997, by the Grantor, GRAPHIC
INDUSTRIES, INC., a Georgia corporation, whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (herein "Borrower"), in favor of the Grantee,
METLIFE CAPITAL FINANCIAL CORPORATION, a Delaware corporation, whose address is
Real Estate Department, ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (herein "METLIFE").
Borrower, in consideration of the indebtedness herein recited does hereby
bargain, sell, transfer, assign, grant, and convey to METLIFE and its successors
and assigns, WITH POWER OF SALE all of Borrower's right, title and interest, now
owned or hereafter acquired, including any reversion or remainder interest, in
the real property located in the City of Atlanta, County of ▇▇▇▇▇▇, State of
Georgia, commonly known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, and more particularly described on
Exhibit A attached hereto and incorporated herein including all heretofore or
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hereafter vacated alleys and streets abutting the property, and all easements,
rights, appurtenances, tenements, hereditaments, rents, royalties, mineral, oil
and gas rights and profits, water, water rights, and water stock appurtenant to
the property (collectively "Premises");
TOGETHER with all of ▇▇▇▇▇▇▇▇'s estate, right, title and interest, now
owned or hereafter acquired, in:
(a) all buildings, structures, improvements, parking areas, landscaping,
fixtures and articles of property now or hereafter erected on, attached to,
or used or adapted for use in the operation of the Premises; including but
without being limited to, all heating, air conditioning and incinerating
apparatus and equipment; all boilers, engines, motors, dynamos, generating
equipment, piping and plumbing fixtures, water heaters, ranges, cooking
apparatus and mechanical kitchen equipment, refrigerators, freezers,
cooling, ventilating, sprinkling and vacuum cleaning systems, fire
extinguishing apparatus, gas and electric fixtures, carpeting, floor
coverings, underpadding, elevators, escalators, partitions, mantels, built-
in mirrors, window shades, blinds, draperies, screens, storm sash, awnings,
signs, furnishings of public spaces, halls and lobbies, and shrubbery and
plants, and including also all interest of any owner of the Premises in any
of such items hereafter at any time acquired under conditional sale
contract, chattel mortgage or other title retaining or security deed, all
of which property mentioned in this clause (a) shall be deemed part of the
realty covered by this Deed and not severable wholly or in part without
material injury to the freehold of the Premises (all of the foregoing
together with replacements and additions thereto are referred to herein as
"Improvements"); and
(b) all compensation, awards, damages, rights of action and proceeds,
including interest thereon and/or the proceeds of any policies of insurance
therefor, arising out of or relating to a (i) taking or damaging of the
Premises or Improvements thereon by reason of any public or private
improvement, condemnation proceeding (including change of grade), sale or
transfer in lieu of condemnation, or fire, earthquake or other casualty, or
(ii) any injury to or decrease in the value of the Premises or the
Improvements for any reason whatsoever;
(c) return premiums or other payments upon any insurance any time provided
for the benefit of or naming METLIFE, and refunds or rebates of taxes or
assessments on the Premises;
(d) all written and oral leases and rental agreements (including
extensions, renewals and subleases and all usufructuary interest; all of
the foregoing shall be referred to collectively herein as the "Leases") now
or hereafter affecting the Premises including, without limitation, all
rents, issues, profits and other revenues and income therefrom and from the
renting, leasing or bailment of Improvements and equipment, all guaranties
of tenants' performance under the Leases, and all rights and claims of any
kind that Borrower may have against any tenant under the Leases or in
connection with the termination or rejection of the Leases in a bankruptcy
or insolvency proceeding;
(e) plans, specifications, contracts and agreements relating to the design
or construction of the Improvements; Borrower's rights under any payment,
performance, or other bond in connection with the design or construction of
the Improvements; all landscaping and construction materials, supplies, and
equipment used or to be used or consumed in connection with construction of
the Improvements, whether stored on the Premises or at some other location;
and contracts, agreements, and purchase orders with contractors,
subcontractors, suppliers, and materialmen incidental to the design or
construction of the Improvements;
(f) all contracts (excluding contracts relating to the printing operations
of Southern Signatures, Inc. ("Southern Signatures, Inc."), rights, claims
or causes of action pertaining to or affecting the Premises or the
Improvements, including, without limitation, all options or contracts to
acquire other property for use in connection with operation or development
of the Premises or Improvements, management contracts, service or supply
contracts, permits, licenses, franchises and certificates, and all
commitments or agreements, now or hereafter in existence, intended by the
obligor thereof to provide Borrower with proceeds to satisfy the loan
evidenced hereby or improve the Premises or Improvements, and the right to
receive all proceeds due under such commitments or agreements including
refundable deposits and fees;
(g) all books, records, surveys, reports and other documents related to the
Premises, the Improvements, the Leases, or other items of collateral
described herein; and
(h) all additions, accessions, replacements, substitutions, proceeds and
products of the real and personal property, tangible and intangible,
described herein.
(All of the foregoing described collateral is exclusive of any equipment,
furniture, furnishings or trade fixtures owned and supplied by Southern
Signatures, Inc. or tenants of the Premises. The Premises, the Improvements,
the Leases and all of the rest of the foregoing property are herein referred to
as the "Property.")
TO HAVE AND TO HOLD the Property and all parts, rights, members, and
apurtenances thereof to the use, benefit, and behoof of METLIFE and its
successors and assigns in fee simple forever. This instrument is a deed passing
title pursuant to the laws of the State of Georgia governing loan or security
deeds and is not a mortgage as "mortgage" is defined for purposes of real
property laws.
This conveyance is intended to constitute a security agreement as required
under the Uniform Commercial Code as enacted in the State of Georgia. ▇▇▇▇▇▇'s
and Secured Party's addresses and the location of the collateral are set forth
on Schedule 1 attached hereto.
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This Deed is made to secure METLIFE (a) the repayment of the indebtedness
evidenced by ▇▇▇▇▇▇▇▇'s promissory note (the "Note") dated of even date herewith
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in the principal sum of FIVE HUNDRED TWO THOUSAND FIVE HUNDRED DOLLARS
($502,500), with interest thereon at the rate of eight and seventy-five
hundredths percent (8.75%) per annum, having a maturity date of February 1,
2012, and all renewals, extensions and modifications thereof; (b) the repayment
of any future advances, with interest thereon, made by METLIFE to Borrower
pursuant to Section 28 hereof (herein "Future Advances"); (c) the payment of all
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other sums, with interest thereon, advanced in accordance herewith to protect
the security of this Deed or to fulfill any of Borrower's obligations hereunder
or under the other Loan Documents (as defined below); (d) the performance of the
covenants and agreements of Borrower contained herein or in the other Loan
Documents; and (e) the repayment of all sums now or hereafter owing to METLIFE
by Borrower pursuant to any instrument which recites that it is secured hereby.
The indebtedness and obligations described in clauses (a)-(e) above are
collectively referred to herein as the "Indebtedness." The Note, this Deed, and
all other documents evidencing, securing or guaranteeing the Indebtedness
(except any Certificate and Indemnity Agreement Regarding Hazardous Substances),
as the same may be modified or amended from time to time, are referred to herein
as the "Loan Documents." The terms of the Note secured hereby may provide that
the interest rate or payment terms or balance due may be indexed, adjusted,
renewed, or renegotiated from time to time, and this Deed shall continue to
secure the Note notwithstanding any such indexing, adjustment, renewal or
renegotiation.
Should the indebtedness be paid according to the tenor and effect thereof
where the same shall become due and payable, and should Borrower perform all
covenants herein contained in a timely manner, then this Deed is satisfied, and
METLIFE shall execute a proper cancellation at the expense of Borrower.
Borrower represents and warrants that Borrower has good, marketable and
insurable title to, and has the right to mortgage an indefeasible fee simple
estate in, the Premises, Improvements, rents, and leases (or, if this Deed is on
a leasehold, good, marketable and insurable title to, and the right to convey
the leasehold estate and that the ground lease is in full force and effect
without modification except as noted above and without default on the part of
either lessor or lessee thereunder), and the right to convey the other Property,
that the Property is unencumbered except as disclosed in writing to and approved
by METLIFE prior to the date hereof, and that Borrower will warrant and forever
defend the title to the Property against all claims and demands, subject only to
the permitted exceptions set forth in Schedule 2 attached hereto.
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▇▇▇▇▇▇▇▇ represents, warrants, covenants and agrees for the benefit of
METLIFE as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly pay when
---------------------------------
due the principal of and interest on the Indebtedness, any prepayment and other
charges provided in the Loan Documents and all other sums secured by this Deed.
2. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. Upon the occurrence of
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an Event of Default (hereinafter defined), and at METLIFE's sole option at any
time thereafter, Borrower shall pay in addition to each monthly payment on the
Note, one-twelfth of the annual real estate taxes, insurance premiums,
assessments, water and sewer rates, ground rents and other charges (herein
"Impositions") payable with respect to the Property (as estimated by METLIFE in
its sole discretion), to be held by METLIFE without interest to Borrower, for
the payment of such obligations.
If the amount of such additional payments held by METLIFE ("Funds") at the
time of the annual accounting thereof shall exceed the amount deemed necessary
by METLIFE to provide for the payment of Impositions as they fall due, such
excess shall be at Borrower's option, either repaid to Borrower or credited to
Borrower on the next monthly installment or installments of Funds due. If at
any time the amount of the Funds held by METLIFE shall be less than the amount
deemed necessary by METLIFE to pay Impositions as they fall due, Borrower shall
pay to METLIFE any amount necessary to make up the deficiency within thirty (30)
days after notice from METLIFE to Borrower requesting payment thereof.
Upon ▇▇▇▇▇▇▇▇'s breach of any covenant or agreement of Borrower in this
Deed, METLIFE may apply, in any amount and in any order as METLIFE shall
3
determine in METLIFE's sole discretion, any Funds held by METLIFE at the time of
application (i) to pay Impositions which are now or will hereafter become due,
or (ii) as a credit against sums secured by this Deed. Upon payment in full of
all sums secured by this Deed, METLIFE shall refund to Borrower any Funds held
by METLIFE.
3. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise,
-----------------------
each complete installment payment received by METLIFE from Borrower under the
Note or this Deed shall be applied by METLIFE first in payment of amounts
payable to METLIFE by Borrower under Section 2 hereof, then to interest payable
---------
on the Note, then to principal of the Note, and then to interest and principal
on any Future Advances in such order as METLIFE, at METLIFE's sole discretion,
shall determine. Upon ▇▇▇▇▇▇▇▇'s breach of any covenant or agreement of Borrower
in this Deed, METLIFE may apply, in any amount and in any order as METLIFE shall
determine in METLIFE's sole discretion, any payments received by METLIFE under
the Note or this Deed. Any partial payment received by METLIFE shall, at
METLIFE's option, be held in a non-interest bearing account until METLIFE
receives funds sufficient to equal a complete installment payment.
4. CHARGES, LIENS. Borrower shall pay all Impositions attributable to the
--------------
Property in the manner provided under Section 2 hereof or, if not paid in such
---------
manner, by Borrower making payment, when due, directly to the payee thereof, or
in such other manner as METLIFE may designate in writing. If requested by
METLIFE, Borrower shall promptly furnish to METLIFE all notices of Impositions
which become due, and in the event Borrower shall make payment directly,
Borrower shall promptly furnish to METLIFE receipts evidencing such payments.
Borrower shall promptly discharge any lien which has, or may have, priority over
or equality with, the lien of this Deed, and Borrower shall pay, when due, the
claims of all persons supplying labor or materials to or in connection with the
Property. Without METLIFE's prior written permission, Borrower shall not allow
any lien inferior to this Deed to be perfected against the Property. If any
lien inferior to this Deed is filed against the Property without METLIFE's prior
written permission and without the consent of ▇▇▇▇▇▇▇▇, Borrower shall, within
thirty (30) days after receiving notice of the filing of such lien, cause such
lien to be released of record and deliver evidence of such release to METLIFE.
5. INSURANCE. Borrower shall obtain and maintain the following types of
---------
insurance upon and relating to the Property:
(a) "All Risk" property and fire insurance (with extended coverage
endorsement including malicious mischief and vandalism) in an amount not less
than the lesser of the outstanding principal balance of the Note or the full
replacement value of the Property (with a deductible not to exceed $25,000),
naming METLIFE under a lender's loss payee endorsement (form 438BFU or
equivalent) and including agreed amount, inflation guard, replacement cost and
waiver of subrogation endorsements;
(b) Comprehensive general liability insurance in an amount not less than
$1,000,000 per occurrence and $2,000,000 in the aggregate insuring against
personal injury, death and property damage and naming METLIFE as additional
insured;
(c) Business interruption insurance covering loss of rental or other income
(including all expenses payable by tenants) for up to six (6) months; and
(d) Such other types of insurance or endorsements to existing insurance as
may be required from time to time by METLIFE.
Upon the request of METLIFE, Borrower shall increase the coverages under
any of the insurance policies required to be maintained hereunder or otherwise
modify such policies in accordance with METLIFE's request. All of the insurance
policies required hereunder shall be issued by corporate insurers licensed to do
business in the state in which the Property is located and rated A:X or better
4
by A.M. Best Company, and shall be in form acceptable to METLIFE. If and to the
extent that the Property is located within an area that has been or is hereafter
designated or identified as an area having special flood hazards by the
Department of Housing and Urban Development or such other official as shall from
time to time be authorized by federal or state law to make such designation
pursuant to any national or state program of flood insurance, Borrower shall
carry flood insurance with respect to the Property in amounts not less than the
maximum limit of coverage then available with respect to the Property or the
amount of the Indebtedness, whichever is less. Certificates of all insurance
required to be maintained hereunder shall be delivered to METLIFE, along with
evidence of payment in full of all premiums required thereunder,
contemporaneously with ▇▇▇▇▇▇▇▇'s execution of this Deed. All such certificates
shall be in form acceptable to METLIFE and shall require the insurance company
to give to METLIFE at least thirty (30) days' prior written notice before
canceling the policy for any reason or materially amending it. Certificates
evidencing all renewal and substitute policies of insurance shall be delivered
to METLIFE, along with evidence of the payment in full of all premiums required
thereunder, at least fifteen (15) days before termination of the policies being
renewed or substituted. If any loss shall occur at any time when Borrower shall
be in default hereunder, METLIFE shall be entitled to the benefit of all
insurance policies held or maintained by Borrower, to the same extent as if same
had been made payable to METLIFE, and upon foreclosure hereunder, METLIFE shall
become the owner thereof. METLIFE shall have the right, but not the obligation,
to make premium payments, at Borrower's expense, to prevent any cancellation,
endorsement, alteration or reissuance of any policy of insurance maintained by
▇▇▇▇▇▇▇▇, and such payments shall be accepted by the insurer to prevent same.
If any act or occurrence of any kind or nature (including any casualty for
which insurance was not obtained or obtainable) shall result in damage to or
destruction of the Property (such event being called a "Loss"), Borrower will
give prompt written notice thereof to METLIFE. All insurance proceeds paid or
payable in connection with any Loss shall be paid to METLIFE. If (i) no Event
of Default has occurred and is continuing hereunder, (ii) Borrower provides
evidence satisfactory to METLIFE of its ability to pay all amounts becoming due
under the Note during the pendency of any restoration or repairs to or
replacement of the Property, (iii) the available insurance proceeds are, in
METLIFE's judgment, sufficient to fully and completely restore, repair or
replace the Property, and (iv) Borrower provides evidence satisfactory to
METLIFE that none of the tenants of the Property will terminate their lease
agreements as a result of either the Loss or the repairs to or replacement of
the Property, Borrower shall have the right to apply all insurance proceeds
received in connection with such Loss either (a) to restore, repair, replace and
rebuild the Property as nearly as possible to its value, condition and character
immediately prior to such Loss, or (b) to the payment of the Indebtedness in
such order as METLIFE may elect. If an Event of Default has occurred and is
continuing hereunder at the time of such Loss, if METLIFE determines that
Borrower will be unable to pay all amounts becoming due under the Note during
the pendency of any restoration or repairs to or replacement of the Property, if
the available insurance proceeds are insufficient, in METLIFE's judgment, to
fully and completely restore, repair or replace the Property or if METLIFE
believes that one or more tenants of the Property will terminate their lease
agreements as a result of either the Loss or the repairs to or replacement of
the Property, then all of the insurance proceeds payable with respect to such
Loss will be applied to the payment of the Indebtedness, or if so instructed by
METLIFE, Borrower will promptly, at Borrower's sole cost and expense and
regardless of whether sufficient insurance proceeds shall be available, commence
to restore, repair, replace and rebuild the Property as nearly as possible to
its value, condition, character immediately prior to such Loss. Borrower shall
diligently prosecute any restoration, repairs or replacement of the Property
undertaken by or on behalf of Borrower pursuant to this Section 5. All such
----------
work shall be conducted pursuant to written contracts approved by METLIFE in
writing. Notwithstanding anything contained herein to the contrary, in the
event the insurance proceeds received by METLIFE following any Loss are
insufficient in METLIFE's judgment to fully and completely restore, repair or
replace the Property, and if Borrower has complied with all of the other
conditions described in this Section 5, Borrower may elect to restore, repair or
---------
replace the Property if it first deposits with METLIFE such additional sums as
METLIFE determines are necessary in order to fully and completely restore,
repair or replace the Property. In the event any insurance proceeds remain
following the restoration, repair or replacement of the Property, such proceeds
shall be applied to the Indebtedness in such order as METLIFE may elect.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower (a) shall not
----------------------------------------
commit waste or permit impairment or deterioration of the Property, (b) shall
not abandon the Property, (c) shall restore or repair promptly and in a good and
workmanlike manner all or any part of the Property to the equivalent of its
5
original condition, or such other condition as METLIFE may approve in writing,
in the event of any damage, injury or loss thereto, whether or not insurance
proceeds are available to cover in whole or in part the costs of such
restoration or repair, (d) shall keep the Property, including all improvements,
fixtures, equipment, machinery and appliances thereon, in good repair and shall
replace fixtures, equipment, machinery and appliances on the Property when
necessary to keep such items in good repair, (e) shall comply with all laws,
ordinances, regulations and requirements of any governmental body applicable to
the Property, (f) if all or part of the Property is for rent or lease, then
METLIFE, at its option after the occurrence of an Event of Default, may require
Borrower to provide for professional management of the Property by a property
manager satisfactory to METLIFE pursuant to a contract approved by METLIFE in
writing, unless such requirement shall be waived by METLIFE in writing, (g)
shall generally operate and maintain the Property in a manner to ensure maximum
rentals, and (h) shall give notice in writing to METLIFE of and, unless
otherwise directed in writing by METLIFE, appear in and defend any action or
proceeding purporting to affect the Property, the security of this Deed or the
rights or powers of METLIFE hereunder. Neither Borrower nor any tenant or other
person, without the written approval of METLIFE, shall remove, demolish or alter
any improvement now existing or hereafter erected on the Property or any
fixture, equipment, machinery or appliance in or on the Property except when
incident to the replacement of fixtures, equipment, machinery and appliances
with items of like kind.
Borrower represents, warrants and covenants that the Property is and shall
be in compliance with the Americans with Disabilities Act of 1990 and all of the
regulations promulgated thereunder, as the same may be amended from time to
time.
7. USE OF PROPERTY. Unless required by applicable law or unless METLIFE
---------------
has otherwise agreed in writing, Borrower shall not allow changes in the use for
which all or any part of the Property was intended at the time this Deed was
executed. Borrower shall not, without METLIFE's prior written consent, (i)
initiate or acquiesce in a change in the zoning classification (including any
variance under any existing zoning ordinance applicable to the Property), (ii)
permit the use of the Property to become a non-conforming use under applicable
zoning ordinances, (iii) file any subdivision or parcel map affecting the
Property, or (iv) amend, modify or consent to any easement or covenants,
conditions and restrictions pertaining to the Property.
8. PROTECTION OF METLIFE'S SECURITY. If Borrower fails to perform any of
--------------------------------
the covenants and agreements contained in this Deed, or if any action or
proceeding is commenced which affects the Property or title thereto or the
interest of METLIFE therein, including, but not limited to, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then METLIFE at METLIFE's option may make such
appearances, disburse such sums and take such action as METLIFE deems necessary,
in its sole discretion, to protect METLIFE's interest, including, but not
limited to, (i) disbursement of attorneys' fees, (ii) entry upon the Property to
make repairs, and (iii) procurement of satisfactory insurance as provided in
Section 5 hereof.
---------
Any amounts disbursed by METLIFE pursuant to this Section 8, with interest
---------
thereon, shall become additional Indebtedness of Borrower secured by this Deed.
Unless Borrower and METLIFE agree to other terms of payment, such amounts shall
be immediately due and payable and shall bear interest from the date of
disbursement at the highest rate which may be collected from Borrower under
applicable law or, at METLIFE's option, the rate stated in the Note. Borrower
hereby covenants and agrees that METLIFE shall be subrogated to the lien of any
mortgage or other lien discharged, in whole or in part, by the Indebtedness.
Nothing contained in this Section 8 shall require METLIFE to incur any expense
---------
or take any action hereunder.
9. INSPECTION. METLIFE may make or cause to be made reasonable entries
----------
upon the Property to inspect the interior and exterior thereof.
10. FINANCIAL DATA. Borrower will furnish to METLIFE within one hundred
--------------
twenty (120) days after the close of its fiscal year (i) current financial
statements of Borrower, including a balance sheet and profit and loss statements
prepared in accordance with generally accepted accounting principles and
practices consistently applied and, if METLIFE so requires, accompanied by the
6
annual audit report of an independent certified public accountant reasonably
acceptable to METLIFE, (ii) if requested by METLIFE, an annual operating
statement, together with other supporting data reflecting all material
information with respect to the operation of the Property and Improvements
during the period covered thereby, and (iii) all other financial information and
reports that METLIFE may from time to time reasonably request.
11. CONDEMNATION. If the Property, or any part thereof, shall be
------------
condemned for any reason, including without limitation fire or earthquake
damage, or otherwise taken for public or quasi-public use under the power of
eminent domain, or be transferred in lieu thereof, all damages or other amounts
awarded for the taking of, or injury to, the Property shall be paid to METLIFE
who shall have the right, in its sole and absolute discretion, to apply the
amounts so received against (a) the costs and expenses of METLIFE, including
reasonable attorneys' fees incurred in connection with collection of such
amounts, and (b) the balance against the Indebtedness; provided, however, that
if (i) no Event of Default shall have occurred and be continuing hereunder, (ii)
Borrower provides evidence satisfactory to METLIFE of its ability to pay all
amounts becoming due under the Note during the pendency of any restoration or
repairs to or replacement of the Property, (iii) METLIFE determines, in its sole
discretion, that the proceeds of such award are sufficient to restore, repair,
replace and rebuild the Property as nearly as possible to its value, condition
and character immediately prior to such taking (or, if the proceeds of such
award are insufficient for such purpose, if Borrower provides additional sums to
METLIFE's satisfaction so that the aggregate of such sums and the proceeds of
such award will be sufficient for such purpose), and (iv) Borrower provides
evidence satisfactory to METLIFE that none of the tenants of the Property will
terminate their lease agreements as a result of either the condemnation or
taking or the repairs to or replacement of the Property, the proceeds of such
award, together with additional sums provided by ▇▇▇▇▇▇▇▇, shall be placed in a
separate account for the benefit of METLIFE and Borrower to be used to restore,
repair, replace and rebuild the Property as nearly as possible to its value,
condition and character immediately prior to such taking. All work to be
performed in connection therewith shall be pursuant to a written contract
therefor, which contract shall be subject to the prior approval of METLIFE. To
the extent that any funds remain after the Property has been so restored and
repaired, the same shall be applied against the Indebtedness in such order as
METLIFE may elect. To enforce its rights hereunder, METLIFE shall be entitled to
participate in and control any condemnation proceedings and to be represented
therein by counsel of its own choice, and ▇▇▇▇▇▇▇▇ will deliver, or cause to be
delivered to METLIFE such instruments as may be requested by it from time to
time to permit such participation. In the event METLIFE, as a result of any such
judgment, decree or award, believes that the payment or performance of any of
the Indebtedness is impaired, METLIFE may declare all of the Indebtedness
immediately due and payable.
12. BORROWER AND LIEN NOT RELEASED. From time to time, METLIFE may, at
------------------------------
METLIFE's option, without giving notice to or obtaining the consent of Borrower,
▇▇▇▇▇▇▇▇'s successors or assigns or of any junior lienholder or guarantors,
without liability on METLIFE's part and notwithstanding Borrower's breach of any
covenant or agreement of Borrower in this Deed, extend the time for payment of
the Indebtedness or any part thereof, reduce the payments thereon, release
anyone liable on any of the Indebtedness, accept an extension or modification or
renewal note or notes therefor, modify the terms and time of payment of the
Indebtedness, release from the lien of this Deed any part of the Property, take
or release other or additional security, reconvey any part of the Property,
consent to any map or plan of the Property, consent to the granting of any
easement, join in any extension or subordination agreement, and agree in writing
with Borrower to modify the rate of interest or period of amortization of the
Note or change the amount of the monthly installments payable thereunder. Any
actions taken by METLIFE pursuant to the terms of this Section 12 shall not
----------
affect the obligation of Borrower or ▇▇▇▇▇▇▇▇'s successors or assigns to pay the
sums secured by this Deed and to observe the covenants of Borrower contained
herein, shall not affect the guaranty of any person, corporation, partnership or
other entity for payment of the Indebtedness, and shall not affect the lien or
priority of the lien hereof on the Property. Borrower shall pay METLIFE a
service charge, together with such title insurance premiums and attorneys' fees
as may be incurred at METLIFE's option, for any such action if taken at
Borrower's request.
13. FORBEARANCE BY METLIFE NOT A WAIVER. Any forbearance by METLIFE in
-----------------------------------
exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any other right or
remedy. The acceptance by METLIFE of payment of any sum secured by this Deed
7
after the due date of such payment shall not be a waiver of METLIFE's right to
either require prompt payment when due of all other sums so secured or to
declare a default for failure to make prompt payment. The procurement of
insurance or the payment of taxes or other liens or charges by METLIFE shall not
be a waiver of METLIFE's right to accelerate the maturity of the Indebtedness
secured by this Deed, nor shall METLIFE's receipt of any awards, proceeds or
damages under Sections 5 and 11 hereof operate to cure or waive Borrower's
-----------------
default in payment of sums secured by this Deed.
14. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Deed is intended to
------------------------------------------
be a security agreement pursuant to the Uniform Commercial Code for any of the
items specified above as part of the Property which, under applicable law, may
be subject to a security interest pursuant to the Uniform Commercial Code, and
Borrower hereby grants and conveys to METLIFE a first and prior security
interest in all of the Property that constitutes personalty, whether now owned
or hereafter acquired. ▇▇▇▇▇▇▇▇ agrees to execute and deliver to METLIFE, upon
METLIFE's request, any financing statements, as well as extensions, renewals and
amendments thereof, and reproductions of this Deed in such form as METLIFE may
require to perfect a security interest with respect to the foregoing items.
Borrower shall pay all costs of filing such financing statements and any
extensions, renewals, amendments and releases thereof, and shall pay all costs
and expenses of any record searches for financing statements METLIFE may
require. Without the prior written consent of METLIFE, Borrower shall not
create or suffer to be created pursuant to the Uniform Commercial Code any other
security interest in said items, including replacements and additions thereto.
Upon ▇▇▇▇▇▇▇▇'s breach of any covenant or agreement of Borrower contained in
this Deed, including the covenants to pay when due all sums secured by this
Deed, METLIFE shall have the remedies of a secured party under the Uniform
Commercial Code, and METLIFE may also invoke the remedies provided in Section 26
----------
of this Deed as to such items. In exercising any of said remedies METLIFE may
proceed against the items of Property separately or together and in any order
whatsoever, without in any way affecting the availability of METLIFE's remedies
under the Uniform Commercial Code or of the remedies provided in Section 26 of
----------
this Deed. Within ten (10) days following any request therefor by METLIFE,
Borrower shall prepare and deliver to METLIFE a written inventory specifically
listing all of the personal property covered by the security interest herein
granted, which inventory shall be certified by Borrower as being true, correct,
and complete.
15. LEASES OF THE PROPERTY. Borrower shall comply with and observe
----------------------
Borrower's obligations as landlord under all Leases of the Property or any part
thereof. All Leases now or hereafter entered into will be in form and substance
subject to the approval of METLIFE. All Leases of the Property shall
specifically provide that such Leases are subordinate to this Deed; that the
tenant attorns to METLIFE, such attornment to be effective upon METLIFE's
acquisition of title to the Property; that the tenant agrees to execute such
further evidences of attornment as METLIFE may from time to time request; that
the attornment of the tenant shall not be terminated by foreclosure; and that
METLIFE may, at METLIFE's option, accept or reject such attornments. Borrower
shall not, without METLIFE's written consent, request or consent to the
subordination of any Lease of all or any part of the Property to any lien
subordinate to this Deed. If ▇▇▇▇▇▇▇▇ becomes aware that any tenant proposes to
do, or is doing, any act or thing which may give rise to any right of set-off
against rent, Borrower shall (i) take such steps as shall be reasonably
calculated to prevent the accrual of any right to a set-off against rent, (ii)
immediately notify METLIFE thereof in writing and of the amount of said set-
offs, and (iii) within ten (10) days after such accrual, reimburse the tenant
who shall have acquired such right to set-off or take such other steps as shall
effectively discharge such setoff and as shall assure that rents thereafter due
shall continue to be payable without set-off or deduction. Upon METLIFE's
receipt of notice of the occurrence of any default or violation by Borrower of
any of its obligations under the Leases, METLIFE shall have the immediate right,
but not the duty or obligation, without prior written notice to Borrower or to
any third party, to enter upon the Property and to take such actions as METLIFE
may deem necessary to cure the default or violation by Borrower under the
Leases. The costs incurred by METLIFE in taking any such actions pursuant to
this paragraph shall become part of the Indebtedness, shall bear interest at the
rate provided in the Note, and shall be payable by Borrower to METLIFE on
demand. METLIFE shall have no liability to Borrower or to any third party for
any actions taken by METLIFE or not taken pursuant to this paragraph.
8
16. REMEDIES CUMULATIVE. Each remedy provided in this Deed is distinct
-------------------
and cumulative to all other rights or remedies under this Deed or afforded by
law or equity, and may be exercised concurrently, independently, or
successively, in any order whatsoever.
17. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER;
--------------------------------------------------------------
ASSUMPTION. METLIFE may, at its option, declare all sums secured by this Deed
----------
to be immediately due and payable, and METLIFE may invoke any remedies permitted
by Section 26 of this Deed, if title to the Property is changed without the
----------
prior written consent of METLIFE, which consent shall be at METLIFE's sole
discretion. Any transfer of any interest in the Property or in the income
therefrom, by sale, lease (except for leases to tenants in the ordinary course
of managing income property which are approved by METLIFE pursuant to Section 15
----------
of this Deed and/or the use and occupation of the Property by Southern
Signatures, Inc.), contract, deed to secure debt, security deed, mortgage, deed
of trust, further encumbrance or otherwise (including any such transfers as
security for additional financing of the Property), and any change in the
ownership interests in Borrower (including any change in the ownership interests
of any legal entities which comprise or control Borrower), except transfers and
changes in ownership by devise or descent, shall be considered a change of
title. METLIFE shall have the right to condition its consent to any proposed
sale or transfer described in this Section 17 upon, among other things,
-----------
METLIFE's approval of the transferee's creditworthiness and management ability
and the transferee's execution, prior to the sale or transfer, of a written
assumption agreement containing such terms as METLIFE may require, including, if
required by METLIFE, the imposition of an assumption fee of one percent (1%) of
the then outstanding balance of the Indebtedness, except in the case of a
transfer to one of ▇▇▇▇▇▇▇▇'s direct or indirect subsidiaries, in which case
Borrower will be liable only for payment of all third-party costs, such as
METLIFE's attorneys' fees and recording costs. In addition to the foregoing,
Borrower shall have a one-time right to transfer the Property to a third party
approved by METLIFE, subject to Borrower's payment of all third-party costs,
such as METLIFE's attorneys' fees and recording costs. Consent by METLIFE to one
transfer of the Property shall not constitute consent to subsequent transfers or
waiver of the provisions of this Section 17. No transfer by Borrower shall
----------
relieve Borrower of liability for payment of the Indebtedness. METLIFE
acknowledges that Borrower is a publicly-held company and that purchases and
sales of its common stock from time to time on the NASDAQ market and in the
ordinary course of business shall not constitute a transfer of the Property or a
change in the ownership interests in Borrower pursuant to this Section 17.
----------
Further, offerings and sales of additional securities of Borrower, payment of
stock dividends, redemptions of stock, issuance of securities pursuant to stock
options, bonus or incentive plans or other common uses of publicly traded
securities shall not be considered to be changes in the ownership interests in
Borrower under this Section 17.
----------
18. NOTICE. Except for any notice required under applicable law to be
------
given in another manner, any and all notices, elections, demands, or requests
permitted or required to be made under this Deed or under the Note shall be in
writing, signed by the party giving such notice, election, demand or request,
and shall be delivered personally, by telegram, or sent by registered,
certified, or Express United States mail, postage prepaid, or by Federal Express
or similar service requiring a receipt, to the other party at the address stated
above, or to such other party and at such other address within the United States
of America as any party may designate in writing as provided herein. The date
of receipt of such notice, election, demand or request shall be the earliest of
(i) the date of actual receipt, (ii) three (3) days after the date of mailing by
registered or certified mail, (iii) one (1) day after the date of mailing by
Express Mail or the delivery (for redelivery) to Federal Express or another
similar service requiring a receipt, or (iv) the date of personal delivery (or
refusal upon presentation for delivery).
19. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
------------------------------------------------------------------
CAPTIONS. The covenants and agreements herein contained shall bind, and the
--------
rights hereunder shall inure to, the respective heirs, successors and assigns of
METLIFE and ▇▇▇▇▇▇▇▇, subject to the provisions of Section 17 hereof. If
----------
Borrower is comprised of more than one person or entity, whether as individuals,
partners, partnerships or corporations, each such person or entity shall be
jointly and severally liable for Borrower's obligations hereunder. In
exercising any rights hereunder or taking any actions provided for herein,
METLIFE may act through its employees, agents or independent contractors as
authorized by METLIFE. The captions and headings of the sections of this Deed
are for convenience only and are not to be used to interpret or define the
provisions hereof.
9
20. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives the right to
--------------------------------
assert any statute of limitations as a bar to the enforcement of the lien of
this Deed or to any action brought to enforce the Note or any other obligation
secured by this Deed.
21. WAIVER OF MARSHALLING. Notwithstanding the existence of any other
---------------------
security interests in the Property held by METLIFE or by any other party,
METLIFE shall have the right to determine the order in which any or all of the
Property shall be subjected to the remedies provided herein. METLIFE shall have
the right to determine the order in which any or all portions of the
Indebtedness secured hereby are satisfied from the proceeds realized upon the
exercise of the remedies provided herein. Borrower, any party who consents to
this Deed and any party who now or hereafter acquires a security interest in the
Property and who has actual or constructive notice hereof hereby waives any and
all right to require the marshalling of assets in connection with the exercise
of any of the remedies permitted by applicable law or provided herein.
22. HAZARDOUS WASTE. Borrower has furnished to METLIFE a Phase I
---------------
Environmental Assessment dated December 13, 1996, prepared by Environmental
Technology Resources, Inc. (the "Engineer"), and an Environmental Questionnaire
dated December 17, 1996 (collectively, the "Report"). Except as disclosed to
METLIFE in the Report, Borrower has received no notification of any kind
suggesting that the Property or any adjacent property is or may be contaminated
with any hazardous waste or materials or is or may be required to be cleaned up
in accordance with any applicable law or regulation; and Borrower further
represents and warrants that, except as previously disclosed to METLIFE in
writing, to the best of its knowledge as of the date hereof after due and
diligent inquiry, there are no hazardous waste or materials located in, on or
under the Property or any adjacent property, or incorporated in any
Improvements, nor has the Property or any adjacent property ever been used as a
landfill or a waste disposal site, or a manufacturing, handling, storage,
distribution or disposal facility for hazardous waste or materials. As used
herein, the term "hazardous waste or materials" includes any substance or
material defined in or designated as hazardous or toxic wastes, hazardous or
toxic material, a hazardous, toxic or radioactive substance, or other similar
term, by any federal, state or local statute, regulation or ordinance now or
hereafter in effect. Borrower shall promptly comply with all statutes,
regulations and ordinances, and with all orders, decrees or judgments of
governmental authorities or courts having jurisdiction, relating to the use,
collection, treatment, disposal, storage, control, removal or cleanup of
hazardous waste or materials in, on or under the Property or any adjacent
property, or incorporated in any Improvements, at Borrower's expense. In the
event that METLIFE at any time believes that the Property is not free of all
hazardous waste or materials or that Borrower has violated any applicable
environmental law with respect to the Property, then immediately upon request by
METLIFE, Borrower shall obtain and furnish to METLIFE, at Borrower's sole cost
and expense, an environmental audit and inspection of the Property from an
expert satisfactory to METLIFE. In the event that Borrower fails to immediately
obtain such audit or inspection, METLIFE or its agents may perform or obtain
such audit or inspection at Borrower's sole cost and expense. METLIFE may, but
is not obligated to, enter upon the Property and take such actions and incur
such costs and expenses to effect such compliance as it deems advisable to
protect its interest in the Property; and whether or not Borrower has actual
knowledge of the existence of hazardous waste or materials on the Property or
any adjacent property as of the date hereof, Borrower shall reimburse METLIFE as
provided in Section 23 below for the full amount of all costs and expenses
----------
incurred by METLIFE prior to METLIFE acquiring title to the Property through
foreclosure or acceptance of a deed in lieu of foreclosure, in connection with
such compliance activities. Neither this provision nor any of the other Loan
Documents shall operate to put METLIFE in the position of an owner of the
Property prior to any acquisition of the Property by METLIFE. The rights granted
to METLIFE herein and in the other Loan Documents are granted solely for the
protection of METLIFE's lien and security interest covering the Property, and do
not grant to METLIFE the right to control ▇▇▇▇▇▇▇▇'s actions, decisions or
policies regarding hazardous waste or materials.
23. ADVANCES, COSTS AND EXPENSES. Borrower shall pay within ten (10) days
----------------------------
after written demand from METLIFE all sums advanced by METLIFE and all costs and
expenses incurred by METLIFE in taking any actions pursuant to the Loan
Documents including attorneys' fees and disbursements, accountants' fees,
appraisal and inspection fees and the costs for title reports and guaranties,
together with interest thereon at the rate applicable under the Note after an
Event of Default from the date such costs were advanced or incurred. All such
10
costs and expenses incurred by METLIFE, and advances made, shall constitute
advances under this Deed to protect the Property and shall be secured by and
have the same priority as the lien of this Deed. If Borrower fails to pay any
such advances, costs and expenses and interest thereon, METLIFE may apply any
undisbursed loan proceeds to pay the same, and, without foreclosing the lien of
this Deed, may at its option commence an independent action against Borrower for
the recovery of the costs, expenses and/or advances, with interest, together
with costs of suit, costs of title reports and guaranty of title, disbursements
of counsel and reasonable attorneys' fees incurred therein or in any appeal
therefrom.
24. ASSIGNMENT OF LEASES AND RENTS. Borrower, for good and valuable
------------------------------
consideration, the receipt of which is hereby acknowledged, to secure the
Indebtedness, does hereby absolutely and unconditionally grant, bargain, sell,
transfer, assign, convey, set over and deliver unto METLIFE all right, title and
interest of Borrower in, to and under the Leases of the Property, whether now in
existence or hereafter entered into, and all guaranties, amendments, extensions
and renewals of said Leases and any of them, and all rents, income and profits
which may now or hereafter be or become due or owing under the Leases, and any
of them, or on account of the use of the Property.
Borrower represents, warrants, covenants and agrees with METLIFE as
follows:
(a) The sole ownership of the entire lessor's interest in the Leases is
vested in Borrower, and Borrower has not, and shall not, perform any acts or
execute any other instruments which might prevent METLIFE from fully exercising
its rights with respect to the Leases under any of the terms, covenants and
conditions of this Deed.
(b) The Leases are and shall be valid and enforceable in accordance with
their terms and have not been and shall not be altered, modified, amended,
terminated, canceled, renewed or surrendered except as approved in writing by
METLIFE. The terms and conditions of the Leases have not been and shall not be
waived in any manner whatsoever except as approved in writing by METLIFE.
(c) Borrower shall not materially alter the term or the amount of rent
payable under any Lease without prior written notice to METLIFE and METLIFE's
consent, which shall not be unreasonably withheld.
(d) To the best of ▇▇▇▇▇▇▇▇'s knowledge, there are no defaults now existing
under any of the Leases and there exists no state of facts which, with the
giving of notice or lapse of time or both, would constitute a default under any
of the Leases.
(e) Borrower shall give prompt written notice to METLIFE of any notice
received by Borrower claiming that a default has occurred under any of the
Leases on the part of Borrower, together with a complete copy of any such
notice.
(f) Each of the Leases shall remain in full force and effect irrespective
of any merger of the interest of lessor and any lessee under any of the leases.
(g) Borrower will not permit any Lease to become subordinate to any lien
other than the lien of this Deed.
This assignment is absolute, is effective immediately, and is irrevocable
by Borrower so long as the Indebtedness remains outstanding. Notwithstanding
the foregoing, until a Notice is sent to Borrower in writing that an Event of
Default has occurred (which notice is hereafter called a "Notice"), Borrower may
receive, collect and enjoy the rents, income and profits accruing from the
Property.
Upon the occurrence of an Event of Default hereunder, METLIFE may, at its
option, after service of a Notice, receive and collect all such rents, income
and profits from the Property as they become due. METLIFE shall thereafter
continue to receive and collect all such rents, income and profits, as long as
such default or defaults shall exist, and during the pendency of any foreclosure
proceedings.
11
Borrower hereby irrevocably appoints METLIFE its true and lawful attorney
with power of substitution and with full power for METLIFE in its own name and
capacity or in the name and capacity of Borrower, from and after service of a
Notice, to demand, collect, receive and give complete acquittances for any and
all rents, income and profits accruing from the Property, either in its own name
or in the name of Borrower or otherwise, which METLIFE may deem necessary or
desirable in order to collect and enforce the payment of the rents, income and
profits of and from the Property. Lessees of the Property are hereby expressly
authorized and directed, following receipt of a Notice from METLIFE, to pay any
and all amounts due Borrower pursuant to the Leases to METLIFE or such nominee
as METLIFE may designate in a writing delivered to and received by such lessees,
and the lessees of the Property are expressly relieved of any and all duty,
liability or obligation to Borrower in respect of all payments so made.
Upon the occurrence of any Event of Default, from and after service of a
Notice, METLIFE is hereby vested with full power to use all measures, legal and
equitable, deemed by it to be necessary or proper to enforce this Section 24 and
----------
to collect the rents, income and profits assigned hereunder, including the right
of METLIFE or its designee, to enter upon the Property, or any part thereof, and
take possession of all or any part of the Property together with all personal
property, fixtures, documents, books, records, papers and accounts of Borrower
relating thereto, and METLIFE may exclude Borrower, its agents and servants,
wholly therefrom. Borrower hereby grants full power and authority to METLIFE to
exercise all rights, privileges and powers herein granted at any and all times
after service of a Notice, with full power to use and apply all of the rents and
other income herein assigned to the payment of the costs of managing and
operating the Property and of any indebtedness or liability of Borrower to
METLIFE, including but not limited to the payment of taxes, special assessments,
insurance premiums, damage claims, the costs of maintaining, repairing,
rebuilding and restoring the improvements on the Property or of making the same
rentable, reasonable attorneys' fees incurred in connection with the enforcement
of this Deed, and of principal and interest payments due from Borrower to
METLIFE on the Note and this Deed, all in such order as METLIFE may determine.
METLIFE shall be under no obligation to exercise or prosecute any of the rights
or claims assigned to it hereunder or to perform or carry out any of the
obligations of the lessor under any of the Leases and does not assume any of the
liabilities in connection with or arising or growing out of the covenants and
agreements of Borrower in the Leases. It is further understood that the
assignment set forth in this Section 24 shall not operate to place
----------
responsibility for the control, care, management or repair of the Property, or
parts thereof, upon METLIFE, nor shall it operate to make METLIFE liable for the
performance of any of the terms and conditions of any of the Leases, or for any
waste of the Property by any lessee under any of the Leases, or any other
person, or for any dangerous or defective condition of the Property or for any
negligence in the management, upkeep, repair or control of the Property
resulting in loss or injury or death to any lessee, licensee, employee or
stranger.
25. DEFAULT. The following shall each constitute an event of default
-------
("Event of Default"):
(a) Failure of or refusal by Borrower to pay any portion of the sums
secured by this Deed when due, and such failure or refusal shall continue for a
period of ten (10) days after written notice is given to Borrower by METLIFE
specifying such failure; or
(b) Failure of Borrower within the time required by this Deed to make any
payment for taxes, insurance or for reserves for such payments, or any other
payment necessary to prevent filing of or discharge of any lien, and such
failure shall continue for a period of ten (10) days after written notice is
given to Borrower by METLIFE specifying such failure; or
(c) Failure by Borrower to observe or perform any obligations of Borrower
to METLIFE on or with respect to any transactions, debts, undertakings or
agreements other than the transaction evidenced by the Note following the giving
of any required notice and the expiration of any applicable period of grace; or
12
(d) Failure of Borrower to make any payment or perform any obligation under
any superior liens or encumbrances on the Property, within the time required
thereunder, or commencement of any suit or other action to foreclose any
superior liens or encumbrances; or
(e) Failure by Borrower to observe or perform any of its obligations under
any of the Leases following the giving of any required notice and the expiration
of any applicable cure period; or
(f) The Property is transferred or any agreement to transfer any part or
interest in the Property in any manner whatsoever is made or entered into
without the prior written consent of METLIFE, except as specifically allowed
under this Deed, including without limitation creating or allowing any liens on
the Property or leasing any portion of the Property; or
(g) Filing by Borrower or Southern Signatures, Inc. of a voluntary petition
in bankruptcy or filing by Borrower or Southern Signatures, Inc., of any
petition or answer seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, or similar relief for itself under any
present or future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors, or the seeking, consenting
to, or acquiescing by Borrower or Southern Signatures, Inc., in the appointment
of any trustee, receiver, custodian, conservator or liquidator for Borrower or
Southern Signatures, Inc., any part of the Property, or any of the income or
rents of the Property, or the making by Borrower or Southern Signatures, Inc.,
of any general assignment for the benefit of creditors, or the inability of or
failure by Borrower or Southern Signatures, Inc., to pay its debts generally as
they become due, or the insolvency on a balance sheet basis or business failure
of Borrower or Southern Signatures, Inc., or the making or suffering of a
preference within the meaning of federal bankruptcy law or the making of a
fraudulent transfer under applicable federal or state law, or concealment by
Borrower or Southern Signatures, Inc., of any of its property in fraud of
creditors, or the imposition of a lien upon any of the property of Borrower or
Southern Signatures, Inc., which is not discharged in the manner permitted by
Section 4 of this Deed, or the giving of notice by Borrower or Southern
---------
Signatures, Inc., to any governmental body of insolvency or suspension of
operations; or
(h) Filing of a petition against Borrower or Southern Signatures, Inc.,
seeking any reorganization, arrangement, composition, readjustment, liquidation,
or similar relief under any present or future federal, state or other law or
regulation relating to bankruptcy, insolvency or other relief for debts, or the
appointment of any trustee, receiver, custodian, conservator or liquidator of
Borrower or Southern Signatures, Inc., of any part of the Property or of any of
the income or rents of the Property, unless such petition shall be dismissed
within sixty (60) days after such filing, but in any event prior to the entry of
an order, judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or termination of
Borrower voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net
worth of Borrower or any of the guarantors of the indebtedness evidenced by the
Note from the assets, liabilities or net worth of Borrower or any of the
guarantors of the indebtedness evidenced by the Note previously disclosed to
METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by or on
behalf of Borrower under the Note, this Deed, any of the other Loan Documents or
the Certificate and Indemnity Agreement Regarding Hazardous Substances, shall
prove to have been false or misleading in any material respect; or
(l) Failure of Borrower to observe or perform any other covenant or
condition contained in the Note and such default shall continue for thirty (30)
days after notice is given to Borrower specifying the nature of the failure. No
notice of default and no opportunity to cure shall be required if during the
prior twelve (12) months METLIFE has already sent a notice to Borrower
concerning default in performance of the same obligation; or
13
(m) Failure of Borrower to observe or perform any other obligation under
this Deed, any other Loan Document or the Certificate and Indemnity Regarding
Hazardous Substances when such observance or performance is due, and such
failure shall continue beyond the applicable cure period set forth in such Loan
Document, or if the default cannot be cured within such applicable cure period,
Borrower fails within such time to commence and pursue curative action with
reasonable diligence or fails at any time after expiration of such applicable
cure period to continue with reasonable diligence all necessary curative
actions. No notice of default and no opportunity to cure shall be required if
during the prior twelve (12) months METLIFE has already sent a notice to
Borrower concerning default in performance of the same obligation; or
(n) ▇▇▇▇▇▇▇▇'s abandonment of the Property; or
(o) Any of the foregoing events occur with respect to any guarantor of any
of Borrower's obligations in connection with the Indebtedness, or such guarantor
dies or becomes incompetent; or
(p) The occurrence of any default under any of the documents evidencing or
securing (i) METLIFE Loan No. 5905292, (ii) METLIFE Loan No. 5905392, (iii)
METLIFE Loan No. 5906393, (iv) METLIFE Loan No. 5904594 (v) METLIFE Loan No.
5909794, (vi) METLIFE Loan No. 5922796, (vii) METLIFE Loan No. 5922896 or (viii)
any other indebtedness with Borrower or any of the guarantors of the
Indebtedness which is now or hereafter owed to METLIFE.
26. RIGHTS AND REMEDIES ON DEFAULT.
------------------------------
(a) Remedies. Upon the occurrence of any Event of Default and at any time
--------
thereafter, METLIFE may exercise any one or more of the following rights and
remedies:
(1) METLIFE may declare all sums secured by this Deed immediately due and
payable, including any prepayment premium which Borrower would be required to
pay.
(2) METLIFE shall have the right to foreclose this Deed in accordance with
applicable law.
(3) In the event of any foreclosure, to the extent permitted by applicable
law, METLIFE will be entitled to a judgment which will provide that if the
foreclosure sale proceeds are insufficient to satisfy the judgment, execution
may issue for any amount by which the unpaid balance of the obligations secured
by this Deed exceeds the net sale proceeds payable to METLIFE.
(4) With respect to all or any part of the Property that constitutes
personalty, METLIFE shall have all rights and remedies of secured party under
the Uniform Commercial Code.
(5) METLIFE shall have the right to have a receiver appointed to take
possession of any or all of the Property, with the power to protect and preserve
the Property, to operate the Property preceding foreclosure or sale, to collect
all the rents and revenues from the Property and apply the proceeds, over and
above cost of the receivership, against the sums due under this Deed, and to
exercise all of the rights with respect to the Property described in Section 24
----------
above. The receiver may serve without bond if permitted by law. METLIFE's
right to the appointment of a receiver shall exist whether or not apparent value
of the Property exceeds the sums due under this Deed by a substantial amount.
Employment by METLIFE shall not disqualify a person from serving as a receiver.
(6) In the event Borrower remains in possession of the Property after the
Property is sold as provided above or METLIFE otherwise becomes entitled to
possession of the Property upon default of Borrower, Borrower shall become a
tenant at will of METLIFE or the purchaser of the Property and shall pay a
reasonable rental for use of the Property while in ▇▇▇▇▇▇▇▇'s possession.
14
(7) METLIFE shall have any other right or remedy provided in this Deed, the
Note, or any other Loan Document or deed delivered by Borrower in connection
therewith, or available at law, in equity or otherwise.
(8) METLIFE shall have all the rights and remedies set forth in Sections 23
-----------
and 24.
------
(b) Sale of the Property. If any Event of Default shall occur hereunder,
--------------------
METLIFE may enter and take possession of the Property, or any portion thereof,
and before or after such entry advertise the sale of the Property, or any
portion thereof, once each week for the four (4) weeks immediately preceding the
sale in the newspaper in which sheriff's advertisements are published in the
county where the real property, or the greatest portion thereof, is located,
giving notice of the time, place, and terms of the sale, and thereafter shall
sell the Property or any part of the Property at public sale or sales at public
outcry at the door of the Superior Courthouse for said county to the highest and
best bidder for cash, in order to pay the Indebtedness and accrued interest
thereon. METLIFE may bid and purchase at such sale. The aforesaid power of
sale is granted in addition to the other remedies provided by law for collection
of the Indebtedness and shall not be exhausted by one exercise thereof but may
be exercised until METLIFE has received full payment of the Indebtedness.
If at the time of the sale METLIFE shall deem it best for any reason to
postpone or continue said sale for one or more days, METLIFE may do so, in which
event notice of such postponement or continuance shall be made in such manner as
the METLIFE may deem sufficient under the laws of the State of Georgia. At any
such public sale, METLIFE may execute and deliver to the purchaser a conveyance
of the Property or any part of the Property in fee simple with full warranty
and, to this end, Borrower hereby constitutes and appoints METLIFE as the agent
and attorney-in-fact of Borrower to make such sale and conveyance, and thereby
to divest Borrower of all right, title or equity that Borrower may have in and
to the Property and to vest the same in the purchaser or purchasers at such sale
or sales. Said appointment is coupled with an interest and shall be
irrevocable. Any recitals contained in the conveyance as to the happening of
the default, and such recitals shall be presumptive evidence that all
preliminary acts prerequisite to said sale and deed were in all things duly
complied with, and said recitals shall be conclusive against Borrower.
(c) Application of the Proceeds of Sale. Upon any public sale pursuant to
-----------------------------------
the aforementioned power of sale and agency, the proceeds of said sale shall be
applied as provided by law. In the event that such proceeds are insufficient to
pay all costs and expenses of sale, METLIFE may advance such sums as it in its
sole and absolute discretion shall determine for the purpose of paying all or
any part of such costs and expenses, and all such sums shall be a part of the
Indebtedness, payable on demand with interest at the rate provided in the Note
as applicable upon default. Borrower shall remain liable for any deficiency
resulting if the proceeds of sale are inadequate to repay the Indebtedness.
(d) Notice of Sale. METLIFE shall give Borrower reasonable notice of the
--------------
time and place of any public sale of any personal property or of the time after
which any private sale or other intended disposition of the personal property is
to be made. Reasonable notice shall mean notice given in accordance with
applicable law, including notices given in the manner and at the times required
for notices in a nonjudicial foreclosure.
(e) Waiver; Election of Remedies. A waiver by either party of a breach of
----------------------------
a provision of this Deed shall not constitute a waiver of or prejudice the
party's right otherwise to demand strict compliance with that provision or any
other provision. Election by METLIFE to pursue any remedy shall not exclude
pursuit of any other remedy, and all remedies of METLIFE under this Deed are
cumulative and not exclusive. An election to make expenditures or take action
to perform an obligation of Borrower shall not affect METLIFE's right to declare
a default and exercise its remedies under this Deed.
27. SATISFACTION OF MORTGAGE. Upon payment of all sums secured by this
------------------------
Deed, METLIFE shall execute a satisfaction of this Deed and shall surrender this
Deed and all notes evidencing Indebtedness secured by this Deed to the person or
persons legally entitled thereto. Such person or persons shall pay METLIFE's
costs incurred in connection with satisfaction of this Deed.
15
28. FUTURE ADVANCES. Upon request of ▇▇▇▇▇▇▇▇, METLIFE, at METLIFE's
---------------
option so long as this Deed secures Indebtedness held by METLIFE, may make
Future Advances to Borrower. Such Future Advances, with interest thereon, shall
be secured by this Deed when evidenced by promissory notes stating that said
notes are secured hereby.
29. IMPOSITION OF TAX BY STATE.
--------------------------
(a) State Taxes Covered. The following constitute state taxes to which
-------------------
this Section applies:
(1) A specific tax upon mortgages or upon all or any part of the
indebtedness secured by a mortgage.
(2) A specific tax on a grantor which the taxpayer is authorized or
required to deduct from payments on the indebtedness secured by a mortgage.
(3) A tax on a mortgage chargeable against the grantee or the holder of the
note secured.
(4) A specific tax on all or any portion of the indebtedness or on payments
of principal and interest made by a grantor.
(b) Remedies. If any state tax to which this Section applies is enacted
--------
subsequent to the date of this Deed, this shall have the same effect as an Event
of Default, and METLIFE may exercise any or all of the remedies available to it
unless the following conditions are met:
(1) Borrower may lawfully pay the tax or charge imposed by state tax, and
(2) Borrower pays the tax or charge within thirty (30) days after notice
from METLIFE that the tax law has been enacted.
30. ATTORNEYS' FEES. In the event suit or action is instituted to enforce
---------------
or interpret any of the terms of this Deed (including without limitation efforts
to modify or vacate any automatic stay or injunction), the prevailing party
shall be entitled to recover all expenses reasonably incurred at, before and
after trial and on appeal whether or not taxable as costs, or in any bankruptcy
proceeding including, without limitation, attorneys' fees, witness fees (expert
and otherwise), deposition costs, copying charges and other expenses. Whether
or not any court action is involved, all reasonable expenses, including but not
limited to the costs of searching records, obtaining title reports, surveyor
reports, and title insurance, incurred by METLIFE that are necessary at any time
in METLIFE's opinion for the protection of its interest or enforcement of its
rights shall become a part of the Indebtedness payable on demand and shall bear
interest from the date of expenditure until repaid at the interest rate as
provided in the Note. The term "attorneys' fees" as used in the Loan Documents
shall be deemed to mean such fees as are reasonable and are actually incurred.
31. GOVERNING LAW; SEVERABILITY. This Deed shall be governed by the law
---------------------------
of the State of Georgia applicable to contracts made and to be performed therein
(excluding choice-of-law principles). In the event that any provision or clause
of this Deed or the Note conflicts with applicable law, such conflict shall not
affect other provisions of this Deed or the Note which can be given effect
without the conflicting provision, and to this end the provisions of this Deed
and the Note are declared to be severable.
32. TIME OF ESSENCE. Time is of the essence of this Deed.
---------------
16
33. CHANGES IN WRITING. This Deed and any of its terms may only be
------------------
changed, waived, discharged or terminated by an deed in writing signed by the
party against which enforcement of the change, waiver, discharge or termination
is sought. Any agreement subsequently made by Borrower or METLIFE relating to
this Deed shall be superior to the rights of the holder of any intervening lien
or encumbrance.
34. NO OFFSET. Borrower's obligation to make payments and perform all
---------
obligations, covenants and warranties under this Deed and under the Note shall
be absolute and unconditional and shall not be affected by any circumstance,
including without limitation any setoff, counterclaim, abatement, suspension,
recoupment, deduction, defense or other right that Borrower or any guarantor may
have or claim against METLIFE or any entity participating in making the loan
secured hereby. The foregoing provisions of this section, however, do not
constitute a waiver of any claim or demand which Borrower or any guarantor may
have in damages or otherwise against METLIFE or any other person, or preclude
Borrower from maintaining a separate action thereon; provided, however, that
Borrower waives any right it may have at law or in equity to consolidate such
separate action with any action or proceeding brought by METLIFE.
35. AUTHORIZATION TO INSERT. [INTENTIONALLY DELETED.]
-----------------------
36. MAXIMUM INTEREST CHARGES. Notwithstanding anything contained herein
------------------------
or in any of the Loan Documents to the contrary, in no event shall METLIFE be
entitled to receive interest on the loan secured by this Deed (the "Loan") in
amounts which, when added to all of the other interest charged, paid to or
received by METLIFE on the Loan, causes the rate of interest on the Loan to
exceed the highest lawful rate. Borrower and METLIFE intend to comply with the
applicable law governing the highest lawful rate and the maximum amount of
interest payable on or in connection with the Loan. If the applicable law is
ever judicially interpreted so as to render usurious any amount called for under
the Loan Documents, or contracted for, charged, taken, reserved or received with
respect to the Loan, or if acceleration of the final maturity date of the Loan
or if any prepayment by Borrower results in Borrower having paid or demand
having been made on Borrower to pay, any interest in excess of the amount
permitted by applicable law, then all excess amounts theretofore collected by
METLIFE shall be credited on the principal balance of the Note (or, if the Note
has been or would thereby be paid in full, such excess amounts shall be refunded
to Borrower), and the provisions of the Note, this Deed and any demand on
Borrower shall immediately be deemed reformed and the amounts thereafter
collectible thereunder and hereunder shall be reduced, without the necessity of
the execution of any new document, so as to comply with the applicable law, but
so as to permit the recovery of the fullest amount otherwise called for
thereunder and hereunder. The right to accelerate the final maturity date of
the Loan does not include the right to accelerate any interest which has not
otherwise accrued on the date of such acceleration, and METLIFE does not intend
to collect any unearned interest in the event of acceleration. All sums paid or
agreed to be paid to METLIFE for the use, forbearance or detention of the Loan
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread through the full term of the Loan until payment in full so
that the rate or amount of interest on account of the Loan does not exceed the
applicable usury ceiling. By execution of this Deed, ▇▇▇▇▇▇▇▇ acknowledges that
it believes the Loan to be nonusurious and agrees that if, at any time, Borrower
should have reason to believe that the Loan is in fact usurious, it will give
METLIFE written notice of its belief and the reasons why ▇▇▇▇▇▇▇▇ believes the
Loan to be usurious, and ▇▇▇▇▇▇▇▇ agrees that METLIFE shall have ninety (90)
days following its receipt of such written notice in which to make appropriate
refund or other adjustment in order to correct such condition if it in fact
exists.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE
LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY
ANOTHER WRITTEN AGREEMENT.
17
BY EXECUTION OF THIS DEED, ▇▇▇▇▇▇▇▇ EXPRESSLY: ACKNOWLEDGES THE RIGHT TO
ACCELERATE THE INDEBTEDNESS EVIDENCED BY THE NOTE AND THE POWER GIVEN
HEREIN TO METLIFE TO SELL THE PROPERTY BY NONJUDICIAL FORECLOSURE UPON
DEFAULT BY BORROWER WITHOUT ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE
OTHER THAN SUCH NOTICE AS IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE
NOTE OR PROVISIONS OF THIS DEED OR BY LAW; ACKNOWLEDGES THAT THE
UNDERSIGNED HAS READ THIS DEED AND THAT ANY AND ALL QUESTIONS REGARDING THE
LEGAL EFFECT OF THIS DEED AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO
BORROWER. ▇▇▇▇▇▇▇▇ HAS CONSULTED WITH ITS COUNSEL PRIOR TO EXECUTING THIS
DEED AND ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF ▇▇▇▇▇▇▇▇
HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY THE UNDERSIGNED,
ON BEHALF OF ▇▇▇▇▇▇▇▇, AS PART OF A BARGAINED-FOR LOAN TRANSACTION AND THAT
THIS DEED IS VALID AND ENFORCEABLE BY METLIFE AGAINST BORROWER IN
ACCORDANCE WITH ALL THE TERMS AND CONDITIONS HEREOF.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has executed this Deed or has caused the
same to be executed by its representatives thereunto duly authorized.
BORROWER:
Signed, sealed, delivered, and notarized GRAPHIC INDUSTRIES, INC.,
this _____ day of January 1997 in the a Georgia corporation
presence of:
---------------------------------------
By:
--------------------------------------- ------------------------------
Signataure of Unofficial Witness ▇▇▇▇ ▇. ▇▇▇▇, III, Chairman
& CEO
--------------------------------------
Signature of Notary Public
Attest:
-------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Secretary
[SEAL]
[SEAL]
My commission expires: _________________
Exhibits:
--------
Exhibit A - Description of Property
Schedule 1 - Description of Debtor and Secured Party
Schedule 2 - Permitted Exceptions
18
Loan No: 5922696-001
EXHIBIT A
(▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇)
Legal Description:
-----------------
SCHEDULE 1
----------
Loan No. 5922696-001
Part 1
------
Description of "Debtor" and "Secured Party"
-------------------------------------------
A. Debtor:
------
1. Name and Identity or Corporate Structure: Graphic Industries, Inc., a
Georgia corporation
2. Debtor has been using or operating under such name and identity or
corporate structure, without change, since: March 7, 1970.
3. The principal place of business and chief executive office of Debtor are
located at:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
Atlanta, Georgia 30324
Attention: ▇▇▇▇ ▇. ▇▇▇▇, III, Chairman & CEO
B. Secured Party: MetLife Capital Financial Corporation, a Delaware
--------------
corporation.
************************************************************************
Part 2
------
(Notice Mailing Addresses of "Debtor" and "Secured Party")
A. The mailing address of Debtor is:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
Atlanta, Georgia 30324
Attention: ▇▇▇▇ ▇. ▇▇▇▇, III, Chairman & CEO
B. The mailing address of Secured Party is:
MetLife Capital Financial Corporation
Real Estate Department
▇▇▇▇▇ ▇.▇. 4th Street, Suite ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Loan No: 5922696-001
SCHEDULE 2
----------
(▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇)
Permitted Exceptions:
--------------------
1. Easement from Georgia Industrial Realty Company to City of Atlanta,
dated December 6, 1954, filed February 21, 1955, recorded in Deed Book 2969,
Page 259, ▇▇▇▇▇▇ County, Georgia Records.
2. Right-of-Way Easement from The ▇▇▇▇▇▇▇ Works to Georgia Power Company,
dated November 21, 1969, filed January 30, 1970, recorded in Deed Book 5181,
Page 419, aforesaid records.
Loan No. 5922696-001
SECURITY AGREEMENT
(▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇)
Debtor:
Name: Graphic Industries, Inc., a Georgia corporation
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
Atlanta, Georgia 30324
Secured Party:
Name: MetLife Capital Financial Corporation,
a Delaware corporation
Address: Real Estate Department
▇▇▇▇▇ ▇.▇. 4th Street, Suite ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Debtor, for valuable consideration, hereby grants to Secured Party a
security interest in the property listed on Exhibit B hereto, and any and all
---------
additions and substitutions thereto (the "Collateral") (i) to secure payment of
the indebtedness evidenced by that certain promissory note of even date
herewith, payable to the order of Secured Party, in the principal amount of Five
Hundred Two Thousand Five Hundred Dollars ($502,500) (the "Note") and (ii) to
secure all other obligations of Debtor arising under all documents securing or
executed in connection with the Note, except any Certificate and Indemnity
Agreement Regarding Hazardous Substances or Environmental Indemnity Agreement
(the "Loan Documents").
Debtor expressly warrants and covenants:
1. Except for the security interest granted hereby, Debtor is, or to the extent
that this Security Agreement states that the Collateral is to be acquired
after the date hereof, will be, the owner of the Collateral free from any
lien, security interest or encumbrance. Debtor shall defend the Collateral
against all claims and demands of all persons at any time claiming the same
or any interest therein.
2. The Collateral is used or bought primarily for use in the business of
Debtor.
3. ▇▇▇▇▇▇'s business address is as stated above. The Collateral is located at
or on or is used or owned for or in connection with the real estate situated
in Atlanta, Georgia, commonly known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and more
particularly described on the attached Exhibit A herein incorporated by this
reference (the "Property").
4. Debtor shall notify Secured Party of any change in the location of the
Collateral or any change in Debtor's principal place of business.
5. Debtor shall pay all taxes and assessments of every nature which may be
levied or assessed against the Collateral.
6. Debtor shall not permit or allow any lien, security interest or encumbrance
whatsoever upon the Collateral and shall not permit the Collateral to be
attached or replevied.
7. The Collateral is in good condition and Debtor shall keep the Collateral in
good condition and from time to time, forthwith, replace and repair all such
parts of the Collateral as may be broken, worn out, or damaged without
allowing any lien to be created upon the Collateral on account of such
replacement or repairs. Secured Party may examine and inspect the Collateral
at any time, wherever located.
8. Debtor will not use the Collateral in violation of any applicable statutes,
regulations or ordinances.
9. Notwithstanding anything else contained herein to the contrary, Secured
Party has been advised that certain personal property will be leased to
Debtor, and Secured Party's interest therein shall be subordinate to
lessor's interest therein.
Until default Debtor may have possession of the Collateral and use it in
any lawful manner, and upon default Secured Party shall have the immediate right
to the possession of the Collateral.
Debtor shall be in default under this Security Agreement upon the happening
of any of the following events (an "Event of Default"):
(a) default in the payment or performance of any obligation, covenant or
liability contained or referred to in this Security Agreement and such
default shall continue for a period of thirty (30) days after written
notice is given to Debtor by Secured Party specifying such default; or
(b) the occurrence of an Event of Default as defined under the Note, any
instrument securing the Note, including the Deed to Secure Debt, Security
Agreement, and Assignment of Leases and Rents or securing the Note (the
"Deed to Secure Debt"), any other Loan Document, or the Certificate and
Indemnity Agreement Regarding Hazardous Substances or the Environmental
Indemnity Agreement; or
(c) loss, theft, damage or destruction to or of any of the Collateral which
shall materially and substantially diminish the aggregate value of the
Collateral, the sale or encumbrance of any of the Collateral, or the making
of any levy, seizure or attachment on or to the Collateral.
Upon an Event of Default and at any time thereafter, Secured Party may
declare the Note immediately due and payable and shall have the remedies of a
secured party under the Articles of the Georgia Uniform Commercial Code.
Secured Party may require Debtor to assemble the Collateral and deliver or make
it available to Secured Party at a place to be designated by Secured Party which
is reasonably convenient to both parties.
Secured Party may require that the Collateral be sold at a public sale at
the same time and place as the sale of the Property, or Secured Party may sell
the Collateral at one or more other public or private sales in accordance with
the Georgia Uniform Commercial Code. The Collateral shall not be required to be
exhibited, presented or displayed at any sale. In the event that the Collateral
is sold under the Deed to Secure Debt, Secured Party hereby assigns its security
interest in the Collateral to the trustee or Sheriff selling the Property under
the Deed to Secure Debt. ▇▇▇▇▇▇ agrees that a sale of the Collateral under the
Deed to Secure Debt and the notices required under the laws of Georgia for the
sale of real property are commercially reasonable and adequate under the Georgia
Uniform Commercial Code.
▇▇▇▇▇▇ agrees to pay to Secured Party in addition to the indebtedness
secured hereby, all expenses of retaking, holding, preparing for sale and
2
selling incurred by Secured Party in connection with realization on the
Collateral including reasonable attorneys' fees and costs. In addition, in the
event suit or action is instituted to enforce or interpret this Agreement
(including without limitation efforts to modify or vacate any automatic stay or
injunction), the prevailing party shall be entitled to recover all expenses
reasonably incurred at, before or after trial and on appeal whether or not
taxable as costs, or in any bankruptcy proceeding, including, without
limitation, attorneys' fees, witness fees (expert and otherwise), deposition
costs, copying charges and other expenses.
No waiver by Secured Party of an Event of Default shall operate as a waiver
of any other default or of the same default on a future occasion. The taking of
this Security Agreement shall not waive or impair any other security said
Secured Party may have or hereafter acquire for the payment of the Note nor
shall the taking of any such additional security waive or impair this Security
Agreement. Secured Party may resort to any security it may have in the order it
may deem proper.
All rights of Secured Party hereunder shall inure to the benefit of its
successors and assigns. All promises and duties of Debtor shall bind its
successors and assigns.
Any and all notices, elections, demands, or requests permitted or required
to be made under this Security Agreement shall be in writing, signed by the
party giving such notice, election, demand or request, and shall be delivered
personally, by telegram, or sent by registered, certified, or Express United
States mail, postage prepaid, or by Federal Express or similar service requiring
a receipt, to the other party at the address set forth above or to such other
party and at such other address within the United States of America as any party
may designate as provided herein. The date of receipt of such notice, election,
demand or request shall be the earliest of (i) the date of actual receipt, (ii)
three (3) days after the date of mailing by registered or certified mail, (iii)
one (1) day after the date of mailing by Express Mail, or the delivery (for
redelivery) to Federal Express or another similar service requiring a receipt,
or (iv) the date of personal delivery (or refusal upon presentation for
delivery).
This Security Agreement shall be governed and construed in accordance with
the laws of the State of Georgia.
IN WITNESS WHEREOF, ▇▇▇▇▇▇ has executed this Security Agreement as of
January , 1997.
--
DEBTOR:
GRAPHIC INDUSTRIES, INC.,
a Georgia corporation
By:
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇, III, Chairman & CEO
Attest:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary
[SEAL]
Exhibits:
--------
Exhibit A - Legal Description
Exhibit B - Personal Property
3
Loan No: 5922696-001
EXHIBIT A
(▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇)
Legal Description:
-----------------
EXHIBIT B
(▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇)
Secured Party: MetLife Capital Financial Corporation
-----
Debtor: Graphic Industries, Inc.
------
Loan No.: 5922696-001
---- ---
All right, title, and interest of Debtor in:
1. All buildings, structures, improvements, parking areas, landscaping,
fixtures and articles of property now or hereafter attached to, or used or
adapted for use in the operation of the real estate (herein the "Premises")
described in Exhibit "A" attached to the financing statement or security
agreement with respect to which this Exhibit "B" is attached, including but
without being limited to, all heating, air conditioning, and incinerating
apparatus and equipment; all boilers, engines, motors, dynamos, generating
equipment, piping and plumbing fixtures, water heaters, ranges, cooking
apparatus and mechanical kitchen equipment, refrigerators, freezers, cooling,
ventilating, sprinkling and vacuum cleaning systems, fire extinguishing
apparatus, gas and electric fixtures, carpeting, floor coverings, underpadding,
elevators, escalators, partitions, mantels, built-in mirrors, window shades,
blinds, draperies, screens, storm sash, awnings, signs, furnishings of public
spaces, halls and lobbies, and shrubbery and plants, and including also all
interest of any owner of the Premises in any of such items hereafter at any time
acquired under conditional sale contract, chattel mortgage or other title
retaining or security instrument, all of which property mentioned in this
paragraph 1 shall be referred to as the "Improvements" and shall be deemed part
of the realty and not severable wholly or in part without material injury to the
freehold of the Premises.
2. All compensation, awards, damages, rights of action and proceeds,
including interest thereon and/or the proceeds of any policies of insurance
therefor, arising out of or relating to a (a) taking or damaging of the Premises
or Improvements thereon by reason of any public or private improvement,
condemnation proceeding (including change of grade), sale or transfer in lieu of
condemnation, or fire, earthquake or other casualty, or (b) any injury to or
decrease in the value of the Premises or the Improvements for any reason
whatsoever.
3. Return premiums or other payments upon any insurance any time provided
for the benefit of or naming Secured Party, and refunds or rebates of taxes or
assessments on the Premises.
4. All the right, title and interest of Debtor in and under all written
and oral leases and rental agreements (including extensions, renewals and
subleases; all of the foregoing shall be referred to collectively herein as the
"Leases") now or hereafter affecting the Premises including, without limitation,
all rents, issues, profits and other revenues and income therefrom and from the
renting, leasing or bailment of Improvements and equipment, all guaranties of
tenants' performance under the Leases, and all rights and claims of any kind
that Debtor may have against any tenant under the Leases or in connection with
the termination or rejection of the Leases in a bankruptcy or insolvency
proceeding.
5. Plans, specifications, contracts and agreements relating to the design
or construction of the Improvements; Debtor's rights under any payment,
performance, or other bond in connection with the design or construction of the
Improvements; all landscaping and construction materials, supplies, and
equipment used or to be used or consumed in connection with construction of the
Improvements, whether stored on the Premises or at some other location; and
contracts, agreements, and purchase orders with contractors, subcontractors,
suppliers, and materialmen incidental to the design or construction of the
Improvements.
6. All contracts (excluding contracts relating to the printing operations
of Southern Signatures, Inc.), rights, claims or causes of action pertaining to
or affecting the Premises or the Improvements, including, without limitation,
all options or contracts to acquire other property for use in connection with
operation or development of the Premises or Improvements, management contracts,
service or supply contracts, permits, licenses, franchises and certificates, and
all commitments or agreements, now or hereafter in existence, intended by the
obligor thereof to provide Debtor with proceeds to satisfy the loan evidenced
hereby or improve the Premises or Improvements, and the right to receive all
proceeds due under such commitments or agreements including refundable deposits
and fees.
7. All books, records, surveys, reports and other documents related to the
Premises, the Improvements, the Leases, or other items of collateral described
herein.
8. All additions, accessions, replacements, substitutions, proceeds and
products of the real and personal property, tangible and intangible, described
herein.
All of the foregoing described collateral is exclusive of any equipment,
furniture, furnishings or trade fixtures owned and supplied by Southern
Signatures, Inc., or by any tenant of the Premises.