EXHIBIT 10.17
WHEN RECORDED, PLEASE RETURN TO: RE: DEED TO SECURE DEBT AND
-------------------------------- SECURITY AGREEMENT DATED
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP JULY 31, 1991 FROM HARRY'S
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. FARMERS MARKET, LTD. TO
SUITE ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ NATIONAL BANK RECORDED IN
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ESQ. DEED BOOK 6682, PAGE 95,
GWINNETT COUNTY, GEORGIA
RECORDS AND IN DEED BOOK
14446, PAGE 201, ▇▇▇▇▇▇
COUNTY, GEORGIA RECORDS
FOURTH MODIFICATION
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OF DEED TO SECURE DEBT
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AND SECURITY AGREEMENT
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THIS FOURTH MODIFICATION OF DEED TO SECURE DEBT AND SECURITY AGREEMENT
(the "Modification") is made and entered into as of January 31, 1997, by and
among HARRY'S FARMERS MARKET, INC., a Georgia corporation ("Grantor"), having a
mailing address of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; and
CREDITANSTALT-BANKVEREIN, in its individual capacity and as successor Agent
("New Grantee"), having a mailing address of Two ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ with a copy to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇.
W I T N E S S E T H
WHEREAS, NationsBank of Georgia, National Association in its
individual capacity ("NationsBank") and Harry's Farmers Market, Ltd. ("Harry's
Partnership"), a Georgia limited partnership and predecessor of Grantor, entered
into a Revolving Credit and Term Loan Agreement dated as of July 31, 1991 (as
amended, supplemented, restated or otherwise modified from time to time, the
"NationsBank Loan Agreement"), pursuant to which NationsBank extended to Harry's
Partnership a revolving credit facility, which has been terminated, and a
$10,500,000 term loan (the "Term Loan"), evidenced by that certain Term Note
dated July 31, 1991 (the "Term Note"), executed by Harry's Partnership in favor
of NationsBank in the original principal amount of $10,500,000; and
WHEREAS, on July 31, 1991, Harry's Partnership made and granted in
favor of NationsBank, N.A. (South), f/k/a NationsBank of Georgia, National
Association, f/k/a The Citizens and Southern National Bank ("Original Grantee")
a certain Deed to Secure Debt and Security Agreement recorded in Deed Book 6682,
page 95, Gwinnett County, Georgia records and in Deed Book 14446, page 201,
▇▇▇▇▇▇ County, Georgia records (as amended as hereinafter set forth, the "Deed
to Secure Debt") covering certain property located in Land Lots 550 and 553 of
the 1st District, 2nd Section of ▇▇▇▇▇▇ County, Georgia, and in Land ▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and more particularly described in
the Deed to Secure Debt (the "Property"); and,
WHEREAS, the Deed to Secure Debt was amended as of March 30, 1992 by
that certain First Modification of Deed to Secure Debt and Security Agreement
recorded in Book 7670, page 24 and re-recorded in Book 9835, page 31, Gwinnett
County, Georgia records, and recorded in Book 15653, page 346 and re-recorded in
Book 17772, page 179, ▇▇▇▇▇▇ County, Georgia records; and
WHEREAS, Harry's Partnership conveyed the Property to Grantor by deeds
dated as of March 31, 1993; and
WHEREAS, in connection with the transfer of the Property from Harry's
Partnership to Grantor, Grantor assumed all obligations of the loan secured by
the Deed to Secure Debt as set forth in that certain Loan Assumption Agreement
dated as of March 31, 1993 by and between Grantor and Original Grantee; and
WHEREAS, the Deed to Secure Debt was further amended as of November
19, 1993 by that certain Second Modification of Deed to Secure Debt and Security
Agreement recorded in Book 9835, page 23, Gwinnett County, Georgia records and
Book 17409, page 118, ▇▇▇▇▇▇ County, Georgia records; and
WHEREAS, the Deed to Secure Debt secured financing from Original
Grantee and other lenders pursuant to that certain Credit Agreement dated as of
November 19, 1993 (the "1993 Credit Agreement") entered into by and among
Grantor, as Borrower, NationsBank of Georgia, National Association, as Agent
(the "Original Agent") and the financial institutions from time to time parties
thereto; and
WHEREAS, in connection with the execution and delivery of the 1993
Credit Agreement, the parties thereto, NationsBank, Grantor and its subsidiaries
entered into an Intercreditor Agreement dated as of November 19, 1993 (the
"Intercreditor Agreement") in order to establish, among other things, the
relative rights of the Original Agent and lenders (including without limitation
New Grantee) under the 1993 Credit Agreement, on the one hand, and NationsBank,
on the other; and
WHEREAS, certain other real and personal property also secures the
indebtedness described in the Deed to Secure Debt; and
WHEREAS, Grantor, Borrower, the Original Agent and certain lenders
(including without limitation New Grantee) entered into a Credit Agreement dated
as of December 30, 1994 (as amended from time to time the "1994 Credit
Agreement") which (i) amended and restated the 1993 Credit Agreement, the
NationsBank Loan Agreement and certain other agreements ancillary thereto and
(ii) modified the indebtedness described in the Deed to Secure Debt by
consolidating, extending and refinancing the indebtedness of Grantor under the
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1993 Credit Agreement and the NationsBank Loan Agreement (as so consolidated,
extended and refinanced, the "Indebtedness"); and
WHEREAS, pursuant to that certain Assignment of Deed to Secure Debt
and Security Agreement, dated of even date herewith, recorded in Deed Book
_____, page ___, Gwinnett County, Georgia records and in Deed Book ______, page
____, ▇▇▇▇▇▇ County, Georgia records, Original Grantee has assigned all of its
right, title and interest in the Deed to Secure Debt to New Grantee; and
WHEREAS, simultaneously herewith, Grantor and New Grantee are entering
into that certain Consent and Ninth Amendment to Amended and Restated Credit
Agreement (the "Ninth Amendment") whereby the amount of the Indebtedness is
being decreased to $12,000,000.00; and
WHEREAS, capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms as set forth in the 1994
Credit Agreement; and
WHEREAS, Grantor and New Grantee desire to modify the Deed to Secure
Debt as more particularly hereinafter set forth;
NOW THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Grantor and New Grantee have agreed and do
hereby agree as follows:
1. INDEBTEDNESS. The term "Credit Agreement" as used in the Deed to
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Secure Debt shall hereafter mean and be deemed to be the 1994 Credit Agreement
(as hereinabove defined), and not the 1993 Credit Agreement. In addition:
Paragraph 1(a)(i) of the Third Modification of Deed to Secure Debt is
deleted in its entirety and is hereby amended to read as follows:
"(i) all obligations of Grantor to the Agent, or to any Lender,
as such term is defined in the Credit Agreement dated as December 30,
1994, as amended from time to time including those certain promissory
notes (as amended, restated, supplemented, replaced or otherwise
modified from time to time, the "Notes") to be issued thereunder from
Grantor to any Lender, such obligations being in the maximum aggregate
principal amount of Twelve Million Dollars ($12,000,000.00),
including, but not limited to, the payment of all principal thereof
and interest on the Loans (as defined in the Credit Agreement), which
amounts may, subject to any restrictions set forth in the Credit
Agreement, be borrowed and repaid and reborrowed under such Notes and
Credit Agreement and any and all other indebtedness now owing or which
may hereafter be owing by Grantor to Grantee however incurred, direct
or indirect and however evidenced;"
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2. MATURITY DATE. The final payment date of the Credit Agreement as
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modified and the Notes to be issued thereunder and secured by the Deed to Secure
Debt shall be on or before January 29, 2000 (the "Maturity Date").
3. INTANGIBLE RECORDING TAX. No Georgia Intangible Recording Tax is due
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and owing upon the recordation of this Modification as the maximum amount of
intangible tax has previously been paid on the recording of the Deed to Secure
Debt and as the Maturity Date for the monies to be advanced hereunder is less
than three years from the date hereof.
4. NO NOVATION. This Modification is not a novation of the Deed to
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Secure Debt or any other Loan Documents, and is not intended by the parties to
be a novation of the Deed to Secure Debt or any other Loan Documents.
5. NO OFFSETS OR DEFENSES. Grantor hereby acknowledges, confirms and
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warrants to Grantee that as of the date hereof, Grantor neither has nor claims
any offset, defense, claim, right of set-off or counterclaim against Original
Grantee or New Grantee under, arising out of or in connection with this
Modification, the Deed to Secure Debt or any other Loan Document or with respect
to any of the indebtedness evidenced or secured thereby or with respect to the
Property. In addition, Grantor covenants and agrees with New Grantee that if
any offset, defense, claim, right of set-off or counterclaim exists, Grantor
hereby irrevocably and expressly waives the right to assert such matter.
6. SUCCESSORS AND ASSIGNS. This Modification shall be binding upon and
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inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors, successors in title and permitted assigns.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Fourth Modification and Deed to Secure Debt has
been duly executed and sealed by the parties the day and year first above
written.
GRANTOR:
Signed, sealed and delivered as to
Grantor in the presence of: HARRY'S FARMERS MARKET,
INC., a Georgia corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Unofficial Witness By: /s/ ▇▇▇▇▇ ▇. Blazer
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/s/ ▇. ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. Blazer
------------------------------ Title: President
Notary Public
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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My Commission Expires: Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Asst. Secretary
Notary Public DeKalb County, Georgia
My Commission Expires May 1, 1999
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(AFFIX NOTARY SEAL)
NEW GRANTEE:
Signed, sealed and delivered as to
New Grantee in the presence of: CREDITANSTALT-BANKVEREIN
/s/
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Unofficial Witness By: /s/
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Name:
Title: Executive Vice President
/s/
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Notary Public
Attest: /s/ ▇▇▇▇▇ ▇▇▇
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-------------------------------- Name: ▇▇▇▇▇ ▇▇▇
My Commission Expires: Title: Sr. Associate
-------------------------------- (BANK SEAL)
(AFFIX NOTARY SEAL)
