PREPARED BY AND RETURN TO:
Geoffrey G. Young
Witt, Gaither & Whitaker, P.C.
1100 American National Bank Building
Chattanooga, Tennessee 37402
DEED TO SECURE DEBT AND SECURITY AGREEMENT
STATE OF GEORGIA
COUNTY OF TROUP
THIS DEED TO SECURE DEBT AND SECURITY AGREEMENT (hereinafter
referred to as this "DEED"), made this the 31st day of March,
1995, between SIGNAL APPAREL COMPANY, INC. (hereinafter referred
to as "BORROWER"), an Indiana corporation, as Grantor, and WALSH
GREENWOOD & CO. (hereinafter referred to as "WALSH GREENWOOD"),
as Grantee, whose address is One East Putnam Avenue, Greenwich, Connecticut
06830.
WITNESSETH:
THAT FOR AND IN CONSIDERATION OF the sum of ONE HUNDRED AND
NO/100 DOLLARS ($100.00) in hand paid by Walsh Greenwood to
Borrower and other good and valuable consideration, the receipt
and sufficiency whereof are hereby acknowledged by Borrower, and
in order to secure the indebtedness and the other obligations of
Borrower hereinafter set forth, Borrower does hereby bargain,
sell, grant, convey, assign, transfer, pledge and set over to
Walsh Greenwood and the successors, successors-in-title and
assigns of Walsh Greenwood , all of the following described land,
interests in land, estates, easements, rights, appurtenances,
buildings, improvements, fixtures, furniture and appliances and
other personal property (hereinafter sometimes collectively
referred to as the "PREMISES"), to wit:
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THIS DEED IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS
AND IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS.
THE NAMES OF THE DEBTOR AND THE SECURED PARTY, THE MAILING
ADDRESS OF THE SECURED PARTY FROM WHICH INFORMATION CONCERNING
THE SECURITY INTEREST MAY BE OBTAINED, THE MAILING ADDRESS OF THE
DEBTOR AND A STATEMENT INDICATING THE TYPES, OR DESCRIBING THE
ITEMS, OF COLLATERAL, ARE AS DESCRIBED IN PARAGRAPH 1.08 HEREOF,
IN COMPLIANCE WITH THE REQUIREMENTS OF ARTICLE 9, SECTION 402 OF
THE UNIFORM COMMERCIAL CODE, SECTION 11-9-402 OF THE OFFICIAL
CODE OF GEORGIA ANNOTATED.
(a) All those tracts or parcels of land more particularly
described in EXHIBIT A attached hereto and by this reference made
a part hereof (the "LAND") and all buildings and other structures
and improvements whatsoever now or hereafter constructed, placed
or located thereon, the Land together with such buildings,
structures and improvements being hereinafter referred to as the
"REAL PROPERTY";
(b) All gas and electric fixtures, radiators, heaters,
engines and machinery, boilers, ranges, elevators and motors,
plumbing and heating, fixtures, carpeting and other floor
coverings, fire extinguishers and any other safety equipment
required by Governmental regulation or law, washers, dryers,
water heaters, mirrors, mantels, air conditioning apparatus,
refrigerating plants, refrigerators, cooking apparatus and
appurtenances, window screens, awnings and storm sashes, which
are or shall be attached to said buildings, structures or
improvements and all other furnishings, furniture, fixtures,
machinery, equipment, appliances, vehicles, building supplies and
materials, warranties and other rights under construction,
service and other contracts, books and records, chattels,
inventory, accounts, farm products, consumer goods, general
intangibles and personal property of every kind and nature
whatsoever now or hereafter owned by Borrower and located in, on
or about, and used or intended to be used with or in connection
with the use, operation or enjoyment of the Real Property (other
than fixtures, equipment, machinery or other property of tenants
under any lease of or rental agreement for space in the Real
Property), including all extensions, additions, improvements,
betterments, after-acquired property, renewals, replacements and
substitutions or proceeds from a permitted sale of any of the
foregoing, and all the right, title and interest of Borrower in
any such furnishings, furniture, fixtures, machinery, equipment,
appliances, vehicles and personal property subject to or covered
by any prior security agreement, conditional sales contract,
chattel mortgage or similar lien or claim, together with the
benefit of any deposits or payments now or hereafter made by
Borrower or on behalf of Borrower, all tradenames, trademarks,
servicemarks, logos and goodwill related thereto which in any way
now or hereafter belong, relate or appertain to the Real Property
or any part thereof or are now or hereafter acquired by Borrower;
and all inventory, accounts, chattel paper, documents, equipment,
fixtures, farm products, consumer goods and general intangibles
constituting proceeds acquired with cash proceeds of any of the
property described hereinabove, all of which are hereby declared
and shall be deemed to be fixtures and accessions to the Land and
a part of the Premises as between the parties hereto and all
persons claiming by, through or under them, and which shall be
deemed to be a portion of the security for the indebtedness
herein described and to be secured by this Deed, and which shall
hereinafter be referred to as the "FIXTURES"; the location of the
above-described collateral is also the location of the Land;
(c) All easements, rights-of-way, strips and gores of land,
vaults, streets, ways, alleys, sidewalks, passages, sewer rights,
waters, water courses, water rights and powers, minerals,
flowers, shrubs, crops, trees, timber and other emblements now or
hereafter located on the Land or under or above the same or
any part or parcel thereof, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments and
appurtenances, reversion and reversions, remainder and
remainders, whatsoever, in any way belonging, relating, or
appertaining to the Real Property or any part thereof, or which
hereafter shall in any way belong, relate or be appurtenant
thereto, whether now owned or hereafter acquired by Borrower;
(d) All of the interest of Borrower as landlord under each
and every lease of, or rental agreement for, space in the Real
Property or any part thereof, if any, and absolutely and
presently all income, rents, issues, profits, cash collateral,
revenues, royalties and benefits of the Real Property and
Fixtures from time to time accruing (including without limitation
all payments under leases or tenancies, proceeds of insurance,
tenant security deposits whether held by Borrower or in a trust
account, and escrow funds), and all the estate, right, title,
interests property, possession, claim and demand whatsoever at
law, as well as in equity, of Borrower of, in and to the same;
reserving only the right, power and authority given to Borrower
as a license to collect and apply the same prior to the
occurrence of an Event of Default hereunder and so long as the
same are not subjected to garnishment, levy, attachment or lien;
(e) All of the right, title and interest of Borrower in any
and all awards or payments, including interest thereon, and the
right to receive the same, as a result of (i) the exercise of the
right of eminent domain or condemnation, (ii) the alteration of
the grade of any street, or (iii) any other injury to, taking,
of, or decrease in the value of, the Real Property and Fixtures
to the extent of all amounts which may be secured by this Deed at
the date of receipt of any such award or payment by Walsh
Greenwood and of the reasonable attorney's fees, costs and
disbursements incurred by Walsh Greenwood in connection with the
collection of such award or payment;
(f) All right, title and interest of Borrower in and to any
and all fees, obligations, debts and accounts arising out of the
use of the Real Property and Fixtures or any part thereof,
however the same may be denominated;
(g) All right, title and interest of Borrower in and to all
options and contracts to purchase or lease the Real Property and
Fixtures or any portion thereof or interest therein, and any
greater estate in the Real Property and Fixtures owned or
hereafter acquired by Borrower;
(h) All right, title and interest of Borrower in any and
all leases, tenant contracts, rental agreements, franchise
agreements, management contracts, construction contracts,
architectural contracts, and other contracts, and permits now or
hereafter affecting the Real Property and Fixtures, which
Borrower now has or may hereafter acquire in the Premises;
(i) All proceeds of and any unearned premiums on any
insurance policies covering the Real Property and Fixtures,
including, without limitation, the right to receive and apply the
proceeds of any insurance, judgments, or settlements made in lieu
thereof, for damage to the Real Property and Fixtures;
(j) All the estate, interest, right, title and other claim
or demand which Borrower now has or may hereafter acquire against
anyone with respect to any damage to all or any part of the Real
Property and Fixtures, including without limitation, damage
arising from any defect in or with respect to the design or
construction of all or any part of the improvements and any
damage resulting therefrom;
(k) To the extent permitted by law, all deposits or other
security or advance payments, including rental payments made by
or on behalf of Borrower to others, with respect to: (i)
insurance policies relating to all or any part of the Real
Property and Fixtures; (ii) utility service for all or any part
of the Real Property and Fixtures; (iii) cleaning, maintenance,
repair or similar services for all or any part of the Real
Property and Fixtures; (iv) refuse removal or server service for
all or any part of the Real Property and Fixtures; (v) rental of
equipment, if any, used in the operation by or on behalf of
Borrower of all or any part of the Real Property and Fixtures;
and (vi) parking or similar services or rights afforded to all or
any part of the Real Property and Fixtures; and
(l) All and singular the rights, members and appurtenances
whatsoever, in any way belonging, relating or appertaining to any
of the Real Property and Fixtures hereinabove mentioned or which
hereafter shall in any way belong, relate or be appurtenant
thereto, whether now owned or hereafter acquired by Borrower.
TO HAVE AND TO HOLD the Premises, and all parts, rights,
members and appurtenances thereof, to the use, benefit and behoof
of Walsh Greenwood and the successors and assigns of Walsh
Greenwood , IN FEE SIMPLE forever; and Borrower covenants that
Borrower is lawfully seized and possessed of the Premises as
aforesaid and has good right to convey the same, that the same
are unencumbered except for those matters (the "PERMITTED TITLE
EXCEPTIONS") set forth on EXHIBIT B attached hereto and by this
reference made a part hereof, and that Borrower will warrant and
will forever defend the title thereto against the claims of all
persons whomsoever, except as to the Permitted Title Exceptions.
THIS CONVEYANCE is intended: (i) to operate and to be
construed as a deed passing the title to the Premises to Walsh
Greenwood and is made under those provisions of the existing
laws of the State of Georgia relating to deeds to secure debt,
and not as a mortgage, and (ii) to constitute a security
agreement pursuant to the Uniform Commercial Code of Georgia, and
this Deed is given to secure the following:
(a) a debt evidenced by that certain Term Promissory Note
(which Note is incorporated herein by reference and to which
reference is made for all purposes) of even date herewith
executed by Borrower, payable to the order of Walsh Greenwood at
its office as set forth in such Term Promissory Note in the
principal sum of Fifteen Million Dollars ($15,000,000.00),
together with interest at the rate or rates as provided for in
such Term Promissory Note, and together with all late charges,
default interest, prepayment premiums and all other fees or
charges as therein set forth (hereinafter referred to as the
"NOTE");
(b) any and all renewals, modifications, consolidations,
replacements and extensions of the Note and the indebtedness
evidenced thereby;
(c) each and every covenant, obligation and undertaking of
Borrower in this Deed and in any other documents executed by
Borrower in connection herewith or therewith or to further
evidence or secure the Note or Notes;
(d) each and every covenant, obligation and undertaking of
Borrower in that certain Credit Agreement dated as of March ,
1995 executed by Borrower and Walsh Greenwood (the "CREDIT
AGREEMENT"), said Credit Agreement, the Note, this Deed and all
such other documents executed in connection herewith are
sometimes hereinafter referred to individually as a "LOAN
DOCUMENT" and collectively as the "LOAN DOCUMENTS");
(e) Any and all advances made by Walsh Greenwood to or on
behalf of or for the account of Borrower and to protect or
preserve the Premises or the security interest created hereby in
the Premises, or for taxes, assessments, insurance premiums or
other charges as hereinafter provided or for performance of any
of Borrower's obligations hereunder or for any other purpose
provided or permitted herein or in any other Loan Document
(whether or not the original Borrower remains the owner of the
Premises at the time of such advances); and
(f) payment of all sums advanced and costs and expenses
incurred by Walsh Greenwood in connection with the Secured
Indebtedness (as hereinafter defined) or any part thereof, any
renewal, extension or change of or substitution for the Secured
Indebtedness or any part thereof, or the acquisition or
perfection of the security therefor, whether made or incurred at
the request of Borrower or Walsh Greenwood .
All of the items referred to hereinabove in sections (a), (b),
(c), (d), (e) and (f) of this paragraph are sometimes hereinafter
referred to collectively as the "SECURED INDEBTEDNESS", and the
Secured Indebtedness is due and payable in full on or before the
maturity date specified in the Credit Agreement and the Note,
unless the maturity thereof is accelerated by Walsh Greenwood
as provided in the Note.
The foregoing or any other provisions of this Deed
notwithstanding, the Real Property, the Fixtures and any other
property of Borrower pledged hereunder as collateral to secure
payment of the Secured Indebtedness shall be subject to the terms
of a certain Deed to Secure Debt and Security Agreement, dated as
of July 29, 1994, between Borrower and BNY Financial Corporation
("BNY") recorded in Book 670 Page 609, Troup County, Georgia and
to an Intercreditor Agreement, dated as of March , 1995 by and
among, BNY, Greyrock Capital Group, Inc. ("GREYROCK"), Walsh
Greenwood , Borrower and certain of Borrower's subsidiaries (the
"INTERCREDITOR AGREEMENT").
SHOULD THE SECURED INDEBTEDNESS BE PAID according to the tenor
and effect thereof when the same shall become due and payable and
should Borrower assume all obligations of Walsh Greenwood , if
any, which are undertaken or incurred by Walsh Greenwood with
respect to the Premises pursuant to the rights and remedies of
Walsh Greenwood under this Deed and the Loan Documents, then
this Deed shall be canceled and surrendered.
ARTICLE I
COVENANTS
Subject in all respects to the terms of the Intercreditor
Agreement, Borrower hereby covenants with Walsh Greenwood as
follows:
1.01 PAYMENT OF INDEBTEDNESS. Borrower shall pay the Note
according to the tenor thereof and all other Secured Indebtedness
promptly as the same shall become due.
1.02 TAXES, LIENS AND OTHER CHARGES.
(a) PAYMENT WHEN DUE. Borrower shall pay, on or
before the due date thereof, all taxes, liens, general and
special assessments, levies, license fees, permit fees, water
rates, sewer charges and all other charges (in each case whether
general or specific, ordinary or extraordinary, or foreseen or
unforeseen) of every character whatsoever (including all
penalties and interest thereon) now or hereafter levied,
assessed, imposed or confirmed on, upon, against or with respect
to, or which may be or become a lien upon the Premises or any
part thereof or any estate, right or interest therein or upon the
rents, issues and profits thereof, and all utility charges,
whether public or private (all of the foregoing are hereinafter
sometimes collectively referred to as "TAXES" and individually as
a "TAX"); and upon demand therefor Borrower will furnish Walsh
Greenwood receipted bills evidencing such payment.
(b) CONTESTS. Nothing in this paragraph herein
contained shall require the payment or discharge of any such Tax
by Borrower so long as Borrower shall in good faith and at its
own expense diligently contest the same or the validity thereof
by appropriate legal proceedings and so long as such contest
shall operate to prevent (i) the collection of such Tax or levy
upon and sale or forfeiture of the Premises or any part thereof
to satisfy such Tax or (ii) the enforcement thereof against
Borrower, Walsh Greenwood or the Premises or any part thereof;
provided that during such contest Borrower shall at the option of
Walsh Greenwood provide security reasonably satisfactory to
Walsh Greenwood, securing the discharge of Borrower's obligation
to pay any Tax finally found to be due and any additional charge,
penalty or expense arising from or incurred as a result of such
contest.
(c) SUBSEQUENT ASSESSMENTS. In the event of the
passage of any state, federal, municipal or other governmental
law, order, rule or regulation, subsequent to the date hereof, in
any manner changing or modifying the laws now in force governing
the taxation of debts secured by deeds to secure debt or the
manner of collecting taxes so as to affect Walsh Greenwood
adversely, Borrower will promptly pay any such tax; if Borrower
fails to make such prompt payment or if any such state, federal,
municipal or other Governmental law, order, rule or regulation
prohibits Borrower from making such payment or would penalize
Walsh Greenwood if Borrower makes such payment, then the entire
Secured Indebtedness shall become due and payable at the option
of Walsh Greenwood without any prepayment fee after notice to
Borrower from Walsh Greenwood demanding payment on the earlier
of (i) sixty (60) days after notice to Borrower from Walsh
Greenwood demanding payment or (ii) the date such payment would
be required to be paid by Walsh Greenwood .
(d) ASSESSMENTS ON THE LOAN. Borrower shall pay, on
or before the due date thereof, all taxes, assessments, charges,
expenses, costs and fees which may now or hereafter be levied
upon, or assessed or charged against, or incurred in connection
with, the Note, the other Secured Indebtedness, this Deed or any
other instrument now or hereafter evidencing, securing or
otherwise relating to the Secured Indebtedness, and shall submit
to Walsh Greenwood such evidence of the due and punctual payment
of all such taxes, assessments, charges, expenses, costs and fees
as Walsh Greenwood may require.
(e) PAYMENT OF INSURANCE PREMIUMS. Borrower shall
pay, on or before the due date there of, (i) all premiums on
policies of insurance covering, affecting or relating to the
Premises, as required pursuant to Paragraph 1.04 hereof, (ii) all
premiums on life insurance policies, if any, collaterally
assigned or to be collaterally assigned to Walsh Greenwood ;
(iii) all premiums for mortgage insurance, if this Deed and the
Note are so insured; and (iv) all ground rentals, other lease
rentals and other sums, if any, owing by Borrower and becoming
due under any lease or rental contract affecting the Premises.
Borrower shall submit to Walsh Greenwood such evidence of the
due and punctual payment of all such premiums, rentals and other
sums as Walsh Greenwood may require.
(f) NO LIENS. Borrower will not suffer any
mechanic's, materialmen's, laborer's, statutory or other lien to
be created and to remain outstanding or unbonded upon any part of
the Premises.
1.03 MONTHLY DEPOSITS. At the option of Walsh Greenwood , to
secure further the payment of the taxes, assessments and
insurance premiums hereinafter referred to, Borrower will deposit
with Walsh Greenwood on the first day of each and every month,
together with and in addition to the monthly payments required
under the Note, a sum which, in the estimation of Walsh Greenwood
, shall be equal to one-twelfth of said annual real property
taxes, general and special assessments and Premiums (as
hereinafter defined); said deposits shall be held by Walsh
Greenwood , free of any interest (unless required by law) and
free of any liens or claims on the part of creditors of Borrower
and as part of the security of Walsh Greenwood , and shall be
used by Walsh Greenwood to pay current real property taxes,
general and special assessments and Premiums with respect to the
Premises as the same accrue and are payable. Said deposits shall
not be, nor be deemed to be, trust funds, but may be commingled
with the general funds of Walsh Greenwood . If said deposits are
insufficient to pay the taxes and assessments in full as the same
become payable, Borrower will deposit with Walsh Greenwood ,
within ten (10) days after notice for Walsh Greenwood of said
deficiency, such additional sum or sums as may be required in
order for Walsh Greenwood to pay such real property taxes,
general and special assessments and Premiums in full. Upon any
Default hereunder or under the Note, Walsh Greenwood may, at its
option, apply any money in the fund resulting from said deposits
to the payment of the Secured Indebtedness in such manner as
Walsh Greenwood may effect. The collection of such deposits by
Walsh Greenwood shall not relieve Borrower of any of the
obligations of Borrower under any provision of this Deed; and
under no circumstances shall Walsh Greenwood be liable for
failure to make any payment on behalf of Borrower, including,
without limitation, payments of real property taxes, general and
special assessments or Premiums.
The foregoing shall be subject to the rights of BNY under
its Deed to Secure Debt and Security Agreement and option of
Walsh Greenwood granted in this paragraph shall not arise while
such Deed to Secure Debt and Security Interest is in effect.
1.04 INSURANCE. Borrower will procure and maintain in
effect at all times Fire, Extended Coverage, Vandalism, Malicious
Mischief and other hazard insurance with respect to the Premises
and public liability insurance with such insurance companies and
in forms and amounts as are reasonably acceptable to and approved
by Walsh Greenwood against loss or destruction on account (if
fire, windstorm or other such hazards, casualties and
contingencies customarily insured against, and injury to the
person or property, including without limiting the generality
thereof, business interruption insurance in an amount equal to
one (1) year's overhead and net profit, and such flood and/or
earthquake insurance as may be reasonably required by Walsh
Greenwood . All insurance policies are to be held by and, to the
extent of its interests, for the benefit of and first payable in
case of loss to Walsh Greenwood , and Borrower shall deliver to
Walsh Greenwood a new policy as replacement for any expiring
policy at least thirty (30) days before the date of such
expiration.
All such policies of insurance shall contain waiver of
subrogation clauses and shall have attached thereto the non-
contributory New York Standard Borrower clause or its equivalent
in favor of Walsh Greenwood with cancellation only upon at least
thirty (30) days' prior written notice to Walsh Greenwood . All
amounts recoverable under any policy are hereby assigned to Walsh
Greenwood and, in the event of a loss, Borrower will give
immediate notice by mail to Walsh Greenwood , and Walsh Greenwood
may make proof of loss if not made promptly by the Borrower.
Walsh Greenwood is hereby authorized and empowered, at its
option, to adjust or compromise any loss under any insurance
policies on the Premises, and to collect and receive the proceeds
from any such policy or policies. Each insurance company
concerned is hereby authorized and directed to make payment for
such loss directly to Walsh Greenwood rather than to Walsh
Greenwood and Borrower jointly, and Walsh Greenwood may, at its
option, apply the amount collected in any one or more of the
following ways: (a) to the payment of the Secured Indebtedness,
whether or not the Secured Indebtedness is then due and payable,
and in whatever order Walsh Greenwood elects, (b) to the repair
and/or restoration of the Premises to a condition satisfactory to
Walsh Greenwood , and/or (d) for any other purposes or objects
for which Walsh Greenwood is entitled to advance funds under
this Deed, all without affecting the security interest created by
this Deed; any balance of such monies then remaining shall be
paid to Borrower or the person or entity lawfully entitled
thereto. In the event any insurance company fails to disburse
directly and solely to Walsh Greenwood but disburses instead
either solely to Borrower or to Borrower and Walsh Greenwood
jointly, Borrower agrees immediately to endorse and transfer such
proceeds to Walsh Greenwood . Upon the failure of Borrower to
endorse and transfer such proceeds as aforesaid, Walsh Greenwood
may execute such endorsement or transfers for and in the name of
Borrower and Borrower hereby irrevocably appoints Walsh Greenwood
as Borrower's agent and attorney-in-fact so to do.
In the event of a casualty, Walsh Greenwood shall make the
net amount of all insurance proceeds received by Walsh Greenwood
pursuant to the provisions of this Deed (the "NET PROCEEDS")
available to Borrower for the repair and restoration of the
Improvements, provided that (i) the Net Proceeds, together with
any additional funds provided by Borrower, if necessary, are
sufficient to reconstruct or restore all improvements according
to plans and specifications approved by Walsh Greenwood ; (ii)
proceeds or awards disbursed shall not be more than 100% of the
cost actually incurred in connection therewith; (iii) no Event of
Default shall exist under the Note or this Deed or the Credit
Agreement at the time of the casualty or at the time of any
requested disbursement hereunder; (iv) Walsh Greenwood shall be
satisfied that upon completion of the repair and restoration of
the improvements the improvements located on the property will be
economically viable and necessary for the operation of Borrower's
business; and (v) the improvements may be restored in compliance
with applicable laws and regulations, including zoning
ordinances. Upon satisfaction of the provisions of the preceding
subparagraphs, the Net Proceeds will be disbursed by Walsh
Greenwood to Borrower pursuant to such disbursement provisions
as Walsh Greenwood may reasonably require, including but not
limited to, provisions similar to those for disbursement of money
center bank construction loans.
The Borrower will not do or suffer to be done or allow or
permit any other user of the Premises to do anything which will
increase the risk of fire or other hazard to the Premises or any
part thereof without first causing such increased risk to be
fully and adequately covered by insurance. In the event of
foreclosure of this Deed, or other transfer of title of the
Premises in extinguishment of the Secured Indebtedness, all
right, title and interest of the Borrower in and to any insurance
policies then in force shall pass to the purchaser or Walsh
Greenwood of the Premises.
In the event that, prior to the extinguishment of the Secured
Indebtedness, there exists any claim under any hazard insurance
policies which shall not have been paid and distributed in
accordance with the terms of this Deed, and any such claims shall
be paid after the extinguishment of the Secured Indebtedness, and
the foreclosure of this Deed, transfer of title to the Premises,
or extinguishment of the Secured Indebtedness for an amount less
than the total of the unpaid principal balance together with
accrued interest plus costs of litigation, reasonable attorneys'
fees, title insurance and all other costs and expenses incurred
by Walsh Greenwood in any action involving such extinguishment,
then, without notation, that portion of the payment in
satisfaction of the claim which is equal to the difference
between the total amount of the aforementioned amounts due Walsh
Greenwood and the amount in extinguishment of the Secured
Indebtedness received by Walsh Greenwood shall belong, to and be
the property of Walsh Greenwood and shall be paid to Walsh
Greenwood , and the Borrower hereby assigns, transfers and sets
over to Walsh Greenwood all of the Borrower's right, title and
interest in and to such sum. The balance, if any, shall belong
to Borrower. Notwithstanding the above, Borrower shall retain an
interest in the insurance policies described above during any
redemption period.
1.05 CARE OF PREMISES.
(a) CONDITION. Borrower will keep the Premises and all
improvements, buildings, structures, parking areas, roads,
walkways, recreational facilities, landscaping, signage and all
other portions of the Premises now or hereafter located or
erected on the Land in good condition and repair, will not commit
or suffer any waste and will not do or suffer to be done anything
which will increase the risk of fire or other hazard to the
Premises or any part thereof or which would result in the
cancellation or termination of any insurance policy carried with
respect to the Premises.
(b) DEMOLITION, ALTERATION. Borrower will not, without the
prior written consent of Walsh Greenwood , (i) remove or demolish
any building, or structure (now or hereafter erected) or (ii)
remove or replace (except in the ordinary course of business and
with replacements of good and serviceable quality) any fixture,
chattel or other property of any description now or hereafter
comprising a portion of the Premises, or (iii) alter the design
or structural character of any such building or structure,
fixture, chattel or other property or the use thereof.
(c) NOTICE OF DAMAGE. If the Premises or any part thereof
is damaged by fire or any other cause, Borrower will give
immediate written notice thereof to Walsh Greenwood .
(d) INSPECTION. Walsh Greenwood or its representative is
hereby authorized to enter upon and inspect the Premises at any
time during normal business hours.
(e) COMPLIANCE WITH LAWS. Borrower shall operate the
Premises in compliance with all present and future laws,
ordinances, rules and regulations of any governmental authority
affecting the Premises or any part thereof whether municipal,
county, state, regional or federal, including, without
limitation, compliance in full with all of the aforesaid with
respect to handicapped persons and environmental protection.
(f) CASUALTY. If all or part of the Premises shall be
damaged by fire or other casualty, Borrower will promptly restore
and repair the Premises to the equivalent of its condition
immediately prior to such damage. The repair and restoration
shall be done and completed by Borrower in an expeditious and
diligent fashion and in compliance with all applicable laws,
rules and regulations, and all plans and specifications required
in connection with the repair and restoration shall be subject to
review and approval in all respects by an independent inspecting
engineer selected by Walsh Greenwood (the "INSPECTING
ENGINEER"). Subject to the terms of Section 1.04 hereof, all
insurance proceeds received by Walsh Greenwood may be retained
and applied by Walsh Greenwood toward the payment of the Secured
Indebtedness whether or not then due and payable in such priority
and proportions as Walsh Greenwood in its discretion shall deem
proper or, at the discretion of Walsh Greenwood, the same may be
paid, either in whole or in part, to Borrower for such purposes
as Walsh Greenwood shall designate.
(g) CONDEMNATION. If all of the Premises shall be taken or
damaged through condemnation (which term when used in this Deed
shall include any damage or taking, either temporarily or
permanently, by any governmental authority and any transfer by
private sale in lieu thereof) or if so much of the Premises (but
less than all) is so taken or damaged that the untaken or
undamaged portion does not have substantial commercial value as
determined by Walsh Greenwood in the exercise of its judgment,
then the Note shall, at the option of Walsh Greenwood , become
immediately due and payable without notice or demand, time being
of the essence of this provision but without charging any
prepayment fee. Walsh Greenwood shall be entitled to all
compensation, awards, and other payments or relief thereof, and
is hereby authorized, at its option, to commence, appear in and
prosecute, in its own or Borrower's name, any action or
proceeding relating to any condemnation, and to settle or
compromise any claim in connection therewith. All such
compensation, awards, damages, claims, rights of action and
proceeds and the right thereto are hereby assigned by Borrower to
Walsh Greenwood, who after deducting therefrom all its expenses,
including reasonable attorney's fees, may release any monies so
received by it without affecting the security interest of this
Deed and may apply the same in such manner as Walsh Greenwood
shall determine to the reduction of the sum secured hereby, and
any balance of such monies then remaining shall be paid to
Borrower. Borrower agrees to execute such further assignment of
any compensation, awards, damages, claims, rights of action and
proceeds as Walsh Greenwood may require. The amount of any
award received by Walsh Greenwood as a result of said
condemnation shall be applied toward the payment of the Secured
Indebtedness, but without charging any prepayment fee.
If less than all of the Premises is so taken or damaged and
the untaken or undamaged portion has substantial commercial value
as determined by Walsh Greenwood in the exercise of its
judgment, then Walsh Greenwood may require that the net award
which has been received as a result of said condemnation be
applied toward the payment of the Secured Indebtedness, whether
due or not, but without charging, any prepayment fee; provided,
however, that Borrower will, upon request of Walsh Greenwood ,
promptly restore, repair and alter the remaining part of the
Premises in a manner and pursuant to plans, specifications, cost
breakdowns and contracts satisfactory to Walsh Greenwood and, in
the event of such a request by Walsh Greenwood , Borrower shall
be entitled to use in and for such restoration, repair and
alteration the net award which has been so received as a result
of said condemnation; should the actual cost of such restoration,
repair and alteration be less than the net award so received,
then after such restoration, repair and alteration have been
completed to the satisfaction of Walsh Greenwood , any excess of
such proceeds shall be applied toward the payment of the Secured
Indebtedness, whether due or not, but without payment of any
prepayment fee; provided further, however, that, should the cost
of such restoration, repair and alteration (as estimated with
Walsh Greenwood 's approval prior to commencement of such
restoration, repair and alteration) exceed such net award, then
prior to such commencement Borrower shall deposit with Walsh
Greenwood 100% of the amount by which such estimated cost
exceeds such net award; should the cost of such restoration,
repair and alteration be less than the combined amount of such
net award plus the additional amount so deposited by Borrower,
then, after such restoration, repair and alteration have been
completed to the satisfaction of Walsh Greenwood , any excess of
such portion of such combined amount shall be applied toward the
payment of the Secured Indebtedness, whether due or not, but
without payment of any prepayment fee.
Subject to the foregoing provisions of this subparagraph (g)
Walsh Greenwood shall disburse those funds (such portion of such
net award and the deposit, if any, made by Borrower) to which
Borrower is entitled under this subparagraph (g) as, and to the
extent, progress is made toward the completion of such
restoration and repair and in accordance with the practices of
institutional construction Walsh Greenwood in the Atlanta,
Georgia area.
1.06 FURTHER ASSURANCES; AFTER-ACQUIRED PROPERTY. At any
time, and from time to time, upon request by Walsh Greenwood ,
Borrower will make, execute and deliver or cause to be made,
executed and delivered, to Walsh Greenwood , and, where
appropriate, cause to be recorded and/or filed and from time to
time thereafter to be re-recorded and/or refiled at such time and
in such offices and places as shall be deemed desirable by Walsh
Greenwood , any and all such other and further deeds to secure
debt, mortgages, deeds of trust, security agreements, financial
statements, continuation statements, instruments of further
assurances, certificates and other documents as may, in the
opinion of Walsh Greenwood , be necessary or desirable in order
to effectuate, complete, or perfect or to continue and preserve
(a) the obligations of Borrower under the Note and under this
Deed and (b) the security interest created by this Deed as a
first and prior security interest in and upon and security title
in and to all of the Premises, whether now owned or hereafter
acquired by Borrower. Upon any failure by Borrower so to do,
Walsh Greenwood may make, execute, record, file, re-record
and/or refile any and all such deeds to secure (debt, security
agreements, financing statements, continuation statements,
instruments, certificates and documents for and in the name of
Borrower, and Borrower hereby irrevocably appoints Walsh
Greenwood the agent and attorney-in-fact of Borrower so to do.
The security title of this Deed and the security interest created
hereby will automatically attach, without further act, to all
after-acquired property attached to and/or used in the operation
of the Premises or any part thereof.
1.07 LEASES AND CONTRACTS.
(a) APPROVAL OF WALSH GREENWOOD REQUIRED. From and
after the date hereof, Borrower shall not make any lease covering
all or any part of the Premises without first submitting the
proposed lease to Walsh Greenwood and obtaining Walsh
Greenwood's approval of the form and substance thereof. Borrower
shall perform all covenants to be performed by the lessor and
landlord under any and all such leases now or hereafter
affecting, the Premises or any part thereof. The terms "LEASE"
and "LEASES" as used in this Paragraph 1.07 shall include all
tenancies, whether under a lease or a rental agreement or tenant
contract or otherwise.
(b) ASSIGNMENT. With respect to Borrower's interest
in any and all leases, tenant contracts, rental agreements,
franchise agreements, development agreements, management
contracts, property management agreements, construction
contracts, architectural contracts, loan commitments and other
contracts, licenses and permits now or hereafter affecting the
Premises or any part thereof (said items are hereinafter referred
to collectively as the "AGREEMENTS" and individually as a
"AGREEMENT"), Borrower agrees to execute and deliver to Walsh
Greenwood such additional instruments, in form and substance
satisfactory to Walsh Greenwood , as may hereafter be requested
by Walsh Greenwood further to evidence and confirm the
assignment thereof set forth herein and in the other Loan
Documents; provided, however, that acceptance of any such
assignment shall not be construed as a consent by Walsh Greenwood
to any Agreement or to impose upon Walsh Greenwood any
obligation with respect thereto. Without first obtaining on each
occasion the written approval of Walsh Greenwood , Borrower shall
not cancel or permit the cancellation of any such Agreement or
modify any of said Agreements, or accept, or permit to be made,
any prepayment of any installment of rent or fees thereunder
(except for security deposits and the usual prepayment of rent
which results from the acceptance by a landlord on the first day
of each month of the rent for that month); provided, however,
that the consent of Walsh Greenwood shall not be required if any
such cancellation is made after default under the terms thereof.
Borrower shall faithfully keep and perform, or cause to be kept
and performed, all of the covenants, conditions and agreements
contained in each of said instruments, now or hereafter existing,
on the part of Borrower to be kept and, performed and shall at
all times do all things reasonably necessary to compel
performance by each other party to said instruments of all
obligations, covenants and agreements by such other party to be
performed thereunder. In the event that any lease of the
Premises contains provisions allowing the lessee or tenant
thereof to cancel or terminate such lease, to vacate or cease
operations in the demised premises or to reduce the rent payable
thereunder, then any act of or attributable to Borrower, whether
through its agents or employees, causing, directly or indirectly,
the triggering of any such termination or abatement provisions
shall constitute a default hereunder.
(c) NO FURTHER ASSIGNMENTS. Borrower shall not
execute an assignment of the income, rents, issues or profits, or
any part thereof, from the Premises unless Walsh Greenwood shall
first consent in writing to such assignment; in any event, any
such assignment shall be, and shall expressly provide that it is,
subordinate to the assignment contained in this Deed and any
assignment executed pursuant thereto or concerning the Secured
Indebtedness.
1.08 SECURITY AGREEMENT.
(a) With respect to the machinery, apparatus,
equipment, fittings, furniture, furnishings, fixtures, building
supplies and materials, articles of personal property, chattels,
chattel paper, documents, contracts (including, without
limitation, construction contracts, architectural contracts, loan
commitments and other Agreements), inventory, consumer goods and
general intangibles referred to or described in this Deed as a
portion of the Premises or in any way connected with the use and
enjoyment of the Premises, this Deed is hereby made and declared
to be a security agreement encumbering each and every item of
such property included herein as a part of the Premises, in
compliance with the provisions of the Uniform Commercial Code as
enacted in the State of Georgia. Upon request by Walsh Greenwood
, at any time and from time to time, a financing statement or
statements reciting this Deed to be a security agreement
affecting all of such property shall be executed by Borrower and
Walsh Greenwood and appropriately filed. The remedies for any
violation of the covenants, terms and conditions of the security
agreement contained in this Deed shall be (i) as prescribed
herein, or (ii) as prescribed by general law, or (iii) as
prescribed by the specific statutory consequences now or
hereafter enacted and specified in said Uniform Commercial Code,
all at Walsh Greenwood 's sole election. Borrower and Walsh
Greenwood agree that the filing of any such financing statement
or statements in the records normally having to do with personal
property shall not in any way affect the agreement of Borrower
and Walsh Greenwood that everything used in connection with the
production of income from the Premises or adapted for use therein
or which is described or reflected in this Deed, is, and at all
times and for all purposes and in all proceedings, both legal or
equitable, shall be, regarded as part of the real estate conveyed
hereby regardless of whether (A) any such item is physically
attached to the improvements, (B) serial numbers are used for the
better identification of certain items capable of being thus
identified in an exhibit to this Deed or elsewhere, or (C) any
such item is referred to or reflected in any such financing
statement or statements so filed at any time. Similarly, the
mention in any such financing statement or statements of the
rights in and to (1) the proceeds of any fire and hazard
insurance policy, or (2) any award in eminent domain proceedings
for a taking or for loss of value, or (3) Borrower's interest as
lessor or landlord in any present or future lease or rights to
income growing out of the use and occupancy of the Premises,
whether pursuant to lease or otherwise, shall not in any way
alter any of the rights of Walsh Greenwood as determined by this
Deed or affect the priority of Walsh Greenwood 's security
interest granted hereby or by any other recorded document, it
being understood and agreed that such mention in such financing
statement or statements is solely for the protection of Walsh
Greenwood in the event any court shall at any time hold, with
respect to the foregoing clauses (1), (2) or (3) of this
sentence, that notice of Walsh Greenwood 's priority of interest,
to be effective against a particular class of persons, must be
filed in the Uniform Commercial Code records.
(b) Borrower warrants that (i) Borrower's (that is,
"DEBTOR'S") name, identity or corporate structure and residence
or principal place of business are as set forth in Paragraph
1.08(c) hereof; (ii) Borrower (that is, "DEBTOR") has been using
or operating under said name, identity or corporate structure
without change for the time period set forth in Paragraph 1.08(c)
hereof; and (iii) the location of the collateral is upon the
Land. Borrower covenants and agrees that Borrower will furnish
Walsh Greenwood with notice of any change in the matters
addressed by clauses (i) or (iii) of this Paragraph 1.08(b)
within thirty (30) days of the effective date of any such change
and Borrower will promptly execute any financing statements or
other instruments deemed necessary by Walsh Greenwood to prevent
any filed financing statement from becoming misleading or losing
its perfected status.
(c) The information contained in this Paragraph
1.08(c) is provided in order that this Deed shall comply with the
requirements of the Uniform Commercial Code, as enacted in the
State of Georgia, for instruments to be filed as financing
statements. The names of the "DEBTOR" and the "SECURED PARTY,"
the identity or corporate structure and residence or principal
place of business of "DEBTOR," and the time period for which
"DEBTOR" has been using or operating under said name and identity
or corporate structure without change, are as set forth in
Schedule I of EXHIBIT C attached hereto and by this reference
made a part hereof; the mailing address of the "SECURED PARTY"
from which information concerning, the security interest may be
obtained, and the mailing address of "DEBTOR," are as set forth
in Schedule 2 of said EXHIBIT C attached hereto; and a statement
indicating the types, or describing the items, of collateral is
set forth hereinabove.
1.09 EXPENSES. Borrower will pay or reimburse Walsh
Greenwood for all costs and expenses, including, but not limited
to, all attorney's fees and expenses, incurred by Walsh Greenwood
in any suit, action, legal proceeding, dispute or state of facts
of any kind in which Walsh Greenwood is made a party, or appears
as party plaintiff or defendant, or which suit, action,
proceeding, dispute or state of facts affects the Secured
Indebtedness, this Deed or the interest created hereby, any other
Loan Document or the Premises, including, but not limited to,
proceedings regarding the exercise of the power of sale of this
Deed, any proposed transfer of the Premises, any proposed
modification of the Loan Documents or waiver with respect
thereto, any condemnation action involving the Premises, any
proceedings involving the estate of a decedent or an insolvent,
any federal bankruptcy proceeding or state insolvency proceeding
or other proceeding involving the priorities or rights of
creditors, any site inspection or evaluation of the Premises
(including environmental inspections and assessments) with
respect to the Loan Documents and any modification or renewal
thereof and any exercise of remedies thereunder, any proceeding
involving any other remedies hereunder or any action to protect
the security hereof, and any costs or expenses of Borrower as
provided in the Note or the other Loan Documents; and any such
amounts paid by Walsh Greenwood shall be added to, and shall
become a portion of, the Secured Indebtedness, shall bear
interest the Increased Rate (as hereinafter defined) and shall be
secured by this Deed.
1.10 ESTOPPEL AFFIDAVITS. Borrower, upon ten (10) days'
prior written notice from Walsh Greenwood , shall furnish to
Walsh Greenwood a written statement, duly acknowledged, setting
forth (a) the unpaid principal amount of the Secured
Indebtedness, (b) the amount of the interest thereon, (c) any
other amounts of Secured Indebtedness, and (d) whether or not, to
the actual knowledge of the individual signing, such statement,
any off-sets or defenses exist against such Secured Indebtedness,
and, if such offsets or defenses exist, stating in detail the
specific facts which relate to each such offset or defense.
1.11 SUBROGATION. To the full extent of the Secured
Indebtedness, Walsh Greenwood is hereby subrogated to the liens,
claims, demands and other encumbrances, and to the rights of the
owners and holders of each and every lien, claim, demand and
other encumbrance on the Premises which is paid or satisfied, in
whole or in part, out of the proceeds of the Secured
Indebtedness, and the respective liens, claims, demands and other
encumbrances shall be, and each of them is hereby, preserved and
shall pass to and be held by Walsh Greenwood as additional
collateral and further security for the Secured Indebtedness, to
the same extent they would have been preserved and would have
been passed to and held by Walsh Greenwood had they been duly
and legally assigned, transferred, set over and delivered unto
Walsh Greenwood by assignment, notwithstanding the fact that any
instrument providing public notice of the same may be satisfied
and canceled of record.
1.12 PERFORMANCE BY WALSH GREENWOOD OF DEFAULTS BY BORROWER.
If Borrower shall default in the payment of any tax, lien,
assessment or charge levied or assessed against the Premises; in
the payment of any utility charge, whether public or private; in
the payment of any insurance premium; in the procurement of
insurance coverage and the delivery of the insurance policies or
certificates required hereunder; in the performance of any
covenant, term or condition of any Agreement affecting all or any
part of the Premises; in the performance or observance of any
other covenant, condition, term or undertaking of this Deed or of
any of the Loan Documents; or in the performance of any covenant,
obligation, term or undertaking of Borrower in any other
instrument now or hereafter evidencing or securing the Secured
Indebtedness, unless such payment or performance is not then
required on account of a contest being carried on by Borrower
pursuant to and in accordance with the provisions of Paragraph
1.03(b) hereof, then Walsh Greenwood , at its option, may perform
or observe the same or any part thereof, and all payments made or
costs incurred by Walsh Greenwood in connection therewith, shall
be secured hereby and shall be, without demand, immediately
repaid by Borrower to Walsh Greenwood with interest thereon at
the interest rate set forth in the Note as the rate applicable
after a Default (said rate of interest is herein referred to in
this Deed as the "INCREASED RATE"). Walsh Greenwood shall be
the sole judge of the legality, validity and priority of any such
tax, lien, assessment, charge, claim, premium and obligation, of
the necessity for any such actions and of the amount necessary to
be paid in satisfaction thereof. Walsh Greenwood is hereby
empowered, subject to the rights of tenants in possession under
leases approved by Walsh Greenwood , to enter and to authorize
others to enter upon the Premises or any part thereof for the
purpose of performing or observing any such defaulted covenant,
condition or term, without thereby becoming liable to Borrower or
any other person in possession holding under Borrower.
1.13 FINANCIAL RECORDS AND STATEMENTS. Borrower shall keep
and maintain and shall provide to Walsh Greenwood financial
records and statements, as provided in the Credit Agreement.
1.14 LIMIT OF VALIDITY. If from any circumstances
whatsoever, fulfillment of any provision of this Deed or of the
Note, at the time performance of such provision shall be due,
shall involve transcending the limit of validity presently
prescribed by any applicable usury statute or any other
applicable law, with regard to obligations of like character and
amount, then, IPSO FACTO, the obligation to be fulfilled shall be
reduced to the limit of such validity, so that in no event shall
any exaction be possible under this Deed or under the Note that
is in excess of the current limit of such validity, but such
obligation shall be fulfilled to the limit of such validity. The
provisions of this Paragraph 1.14 shall control every other
provision of this Deed and of the Note.
1.15 CONVEYANCE OR ENCUMBRANCE OF PREMISES.
(a) Borrower hereby acknowledges to Walsh Greenwood that
(i) the identity and expertise of Borrower were and continue to
be material circumstances upon which Walsh Greenwood has relied
in connection with, and which constitute valuable consideration
to Walsh Greenwood for, the extending to Borrower of the
indebtedness evidenced by the Note and (ii) any change in such
identity or expertise could materially impair or jeopardize the
security for the payment of the Note granted to Walsh Greenwood
by this Deed. Borrower hereby covenants and agrees with Walsh
Greenwood , as part of the consideration for the extending to
Borrower of the indebtedness evidenced by the Note, that Borrower
shall not, without first obtaining the written consent of Walsh
Greenwood , directly or indirectly, sell, encumber, mortgage,
charge, pledge, convey, transfer, assign or dispose of the
premises, or any part thereof or interest therein. In addition,
without the prior written consent of Walsh Greenwood , Borrower
shall not suffer or permit to exist any lien or charge whatsoever
on or with respect to the Premises or any part thereof or
interest therein. If Borrower is a corporation, partnership or
other artificial entity, there shall be no sale, encumbrance,
pledge, charge, conveyance, transfer, assignment or disposal of a
controlling interest in Borrower without the prior written
consent of Walsh Greenwood . Any consent of Walsh Greenwood may
be given or withheld by Walsh Greenwood at its sole discretion.
(b) In the event of the violation of the aforesaid
covenants, Walsh Greenwood shall have the right, at its sole
option, to declare forthwith due and payable the entire Secured
Indebtedness, including, but not limited to, any prepayment
premium as and to the extent set forth in the Note. The decision
to accelerate the Secured Indebtedness shall be at the sole
option of Walsh Greenwood . The consent to one such transfer
shall not be deemed to be a waiver of the right to require
consent to future or successive transactions or of the right to
deny consent in any future or successive transactions.
1.16 ACQUISITION OF COLLATERAL. Borrower shall not acquire
any portion of the personal property covered by this Deed subject
to any security interest, conditional sales contract, title
retention arrangement or other charge or lien taking precedence
over the security title and lien of this Deed.
1.17 ENVIRONMENTAL REPRESENTATIONS, WARRANTIES AND
COVENANTS.
(a) Borrower warrants, represents and covenants as
follows:
(i) To the best of Borrower's knowledge, after
reasonable inquiry, but subject to all matters disclosed to Walsh
Greenwood in the Phase I Site Assessment performed by Clayton
Environmental Consultants, Inc., dated May 20, 1994 (Reference
Number 54898.02) (the "ENVIRONMENTAL ASSESSMENT"), copies of
which have been furnished to Walsh Greenwood and those holding
the Premises under Borrower, are in substantial compliance with
all laws and regulations relating to pollution and environmental
control applicable to the Premises. The Borrower will comply
with all such laws and regulations which may be imposed in the
future other than those which would not have a material adverse
effect on the business, assets properties or condition (financial
or otherwise) of the Borrower. Specifically, the Premises is
free from "HAZARDOUS SUBSTANCES" as defined under any applicable,
municipal, county, regional, state or federal law, ordinance or
regulation (an "ENVIRONMENTAL REGULATION") including, without
limitation the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601, et. seq., as
amended, and the regulations promulgated thereunder (other than
substances reported to agencies in the normal course of business
in material safety data sheets or the like) ("HAZARDOUS
SUBSTANCES"); no portion of the Premises is subject to federal,
state, or local regulation or liability because of the presence
of stored, leaked or spilled petroleum products, waste materials
or debris, "PCB'S" or PCB items (as defined in 40 C.F.R. Section
763.63) underground storage tanks, "ASBESTOS" (as defined in 40
C.F.R. Section 763.63) or the past or present accumulation,
spillage or leakage of any such substances, and the Borrower is
in substantial compliance with all federal, state and local
requirements relating to protection of health or the environment
in connection with the operation of their business; and the
Borrower knows of no complaint or investigation regarding the
Premises. Further, the Borrower is unaware of any investigation,
threat or concern by any entity regarding, environmental issues
involving the
Premises. There are not now any outstanding
citations, notices or orders of violation or noncompliance issued
to Borrower or relating to Borrower's business assets, property
or leaseholds under any such laws, rules or relations, nor any
conditions which, if known by the proper authorities, could
result in any of the foregoing.
(ii) If Borrower receives any notice or otherwise
acquires knowledge of (1) the happening of an event involving the
use, spill, discharge or cleanup of any Hazardous Substance or
known hazardous or toxic waste, including, but not limited to any
oil or pesticide on or about any property of Borrower or caused
by the Borrower, (a "HAZARDOUS DISCHARGE") or (ii) any complaint,
order, citation or notice with regard to air emissions, water
discharges, noise omissions or any other environmental, health or
safety matter affecting the Borrower or the Premises or
Borrower's operations or the operations of any person holding the
Premises by or through Borrower (an "ENVIRONMENTAL COMPLAINT")
from any person or entity, including without limitation the
Department of Environmental Protection of the State in which the
Premises is located ("DEP"), the United States Environmental
Protection Agency ("EPA"), the United States Army Corps of
Engineers (the "CORPS"), or the United States Coast Guard (the
"COAST GUARD"), then Borrower will give written notice of same to
Walsh Greenwood within ten (10) days thereafter and shall
promptly comply with its obligations under law with regard to
such Hazardous Discharge or Environmental Complaint.
(iii) Borrower and those holding the Premises
under Borrower have, and will continue to have, all necessary
federal, state and local licenses, certificates and permits
relating to the Borrower, the persons holding the Premises and
the Premises, and they are in compliance with all applicable
federal, state and local laws, rules and regulations relating to
air emissions, water discharges, noise emissions, solid or liquid
storage and disposal, hazardous or toxic waste or substances and
other environmental, health and safety matters, other than those
which would not have a material adverse effect on the business,
assets properties or condition (financial or otherwise) of the
Borrower.
(iv) As set forth in that certain letter from
Clayton Environmental Consultants to Walsh Greenwood dated June
17, 1994, Borrower shall, at Borrower's sole cost and expense,
comply with all recommendations of Clayton Environmental
Consultants, including, but not limited to reporting, on not less
than a quarterly basis, of the progress of the clean-up as
required under the Clayton Project Number referenced in such
letter, which reports shall be in such detail as Walsh Greenwood
may require.
(b) Walsh Greenwood shall have the right but not the
obligation, prior to or subsequent to an Event of Default,
without limiting Walsh Greenwood 's other rights and remedies
under this Deed, to enter onto the Premises or to take such other
actions as it deems necessary or advisable to clean up, move,
resolve or minimize the impact of, or otherwise deal with, any
Hazardous Substances on the Premises following receipt of any
notice from any person or entity asserting the existence of any
Hazardous Substance pertaining to the Premises or any part
thereof which, if true, could result in an order, suit,
imposition of a lien on the Premises, or other action an/or
which, in Walsh Greenwood 's sole opinion, could jeopardize Walsh
Greenwood 's security under this Deed. All reasonable costs and
expenses paid or incurred by Walsh Greenwood in the exercise of
any such rights shall be included in the definition of the
Secured Indebtedness secured by this Deed and shall be payable by
Borrower upon demand.
(c) Borrower hereby agrees to defend, indemnify and
hold Walsh Greenwood harmless from and against any and all
claims, losses, liabilities, damages and expenses (including
without limitation, cleanup costs and reasonable attorney's fees,
including those arising by reason of any of the aforesaid or an
action against Walsh Greenwood under this indemnity) arising
directly or indirectly from, out of, or by reason of any
Hazardous Discharge, Environmental Complaint, or any
environmental, health or safety law governing the Borrower, their
operations or the Premises or from any inaccuracy in the
representations and warranties given herein relating to
environmental matters. This indemnification shall survive the
repayment of the Secured Indebtedness and satisfaction or release
of this Deed.
(d) All warranties and representations above shall be
deemed to be continuing and shall remain true and correct in all
material respects until all of the Secured Indebtedness has been
paid in full and any limitations period expires. Borrower's
covenants above shall survive any exercise of any remedy by Walsh
Greenwood under the Note, or this Deed, or the other Loan
Documents including foreclosure of this Deed (or deed in lieu
thereof, even if, as a part of such foreclosure or deed in lieu
of foreclosure, the Secured Indebtedness is satisfied in full
and/or this Deed shall have been released.
1.18 NO PENDING MATERIAL LITIGATION OR PROCEEDING. To the
best knowledge and belief of Borrower, as of the date hereof,
there are no actions, suits, investigations or proceedings
pending or, to the knowledge and belief of Borrower, threatened
against or affecting Borrower, or the business, operations,
properties or assets of Borrower, or before or by any
governmental department, commission, board, regulatory authority,
bureau, agency, or instrumentality, domestic, foreign, federal,
state or municipal, or any court, arbitrator or grand jury
(herein collectively called "GOVERNMNETAL AGENCY"), which may
result in any material adverse change in the business,
operations, properties or assets or in the condition, financial
or otherwise, of Borrower, or in the ability of Borrower to
perform its covenants and obligations under this Deed. Borrower
is not, to the best knowledge and belief of Borrower, in default
with respect to any judgment, order, writ, injunction decree,
demand, rule or regulation of any court, arbitrator, grand jury
or of any Governmental Agency, default under which might have
consequences which would materially and adversely affect the
business, operations, properties or assets or the condition,
financial or otherwise, of Borrower.
1.19 AUTHORIZATION: NO LEGAL RESTRICTIONS ON PERFORMANCE.
Borrower (and the undersigned representative of Borrower, if any)
additionally represents and warrants that: (i) it has full-power,
authority and legal right to execute this Deed, and to give,
grant, bargain, sell, alien, convey, confirm and assign the
Premises pursuant to the terms hereof and to keep and observe all
of the terms of this Deed on Borrower's part to be performed,
(ii) if Borrower is a corporation, Borrower is a duly organized
and presently existing corporation and this Deed has been
executed by authority of its Board of Directors and with the
requisite consent of the holders of the outstanding shares of its
capital stock entitled to vote thereon, if such consent is
required under the provisions of the certificate of incorporation
of Borrower, (iii) if Borrower is a partnership, Borrower is a
duly authorized and validly existing limited partnership and this
Deed has been executed by a duly authorized general partner, (iv)
neither the execution and delivery by Borrower of this Deed or
any of the other Loan Documents to which it is a party nor the
consummation of the transactions contemplated herein or therein,
nor compliance with the terms and conditions hereof or thereof,
will conflict with or result in a breach of, or constitute a
default under, any of the terms, obligations, covenants,
conditions or provisions of any partnership or corporate
restriction or of any indenture, mortgage, deed to secure debt,
deed of trust, pledge, bank loan or credit agreement, corporate
charter, by-law or any other agreement or instrument to which
Borrower is now a party or by which its properties may be bound
or affected, or any judgment, order, writ, injunction, decree or
demand of any court, arbitrator, grand jury, or governmental
agency, or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any property
or asset of Borrower under the terms or provisions of any of the
foregoing, (v) to the best of Borrower's knowledge, as of the
date hereof, Borrower is not in default in the performance,
observance or fulfillment of any of the terms, obligations,
covenants, conditions or provisions contained in any indenture or
other agreement creating, evidencing or securing indebtedness of
Borrower or pursuant to which Borrower is a party or by which
Borrower or its properties may be bound or affected.
1.20 COMPLIANCE WITH LAWS. Borrower has, to the best of
Borrower's knowledge and belief, after due and diligent inquiry,
as of the date hereof, complied with all applicable statutes,
rules, regulations, orders and restrictions of any domestic or
foreign government or any instrumentality or agency thereof, in
respect of the conduct of its business and ownership of its
properties (including, without limitation, applicable statutes,
rules, regulations, orders and restrictions relating to equal
employment opportunities and, except only to the extent, if any,
set forth in the Environmental Assessment, environmental
standards or controls). To the best of Borrower's knowledge and
belief, after due and diligent inquiry, no governmental orders,
permissions, consents, approvals or authorizations are required
to be obtained and no registrations or declarations are required
to be filed in connection with the execution and delivery or
performance of the covenants and obligations under this Deed or
under any of the Loan Documents.
1.21 TAX STATUS. Borrower has filed all required United
States income tax informational returns and all state and
municipal tax returns which are required to be filed, and has
paid, or made provision for the payment of, any taxes which have
become due pursuant to said returns or pursuant to any assessment
received by Borrower, except such filings and taxes, if any, as
are being contested in good faith and as to which adequate
reserves have been provided.
1.22 WARRANTY OF TITLE. Borrower represents, warrants and
covenants that it is, and shall remain during the term of this
Deed, the lawful owner of all right, title and interest in and to
the Premises free and clear of all deeds of trust, mortgages,
liens and other encumbrances except for the Permitted Title
Exceptions; that this Deed is and shall remain at all times a
lien upon the Premises subordinate only to the Permitted Title
Exceptions, and that Borrower shall not grant, allow or suffer
any deed of trust, mortgage, easement, restriction, encroachment
or other liens or encumbrances on the Premises without the prior
written consent of Walsh Greenwood in each instance; that
Borrower shall immediately notify Walsh Greenwood in writing of
any mechanic's liens or other liens asserted against the Premises
of which it becomes aware, and shall eliminate such liens by
bonding, or otherwise providing such security as may be necessary
to ensure that the lien will not affect title to the Premises and
to remove the lien as an encumbrance on title, within thirty (30)
days of the date Borrower becomes aware of such liens.
1.23 FINANCIAL STATUS. Borrower also represents and
warrants that: (i) Borrower is now, and after giving effect to
this Deed, will be in a solvent condition, (ii) there has been no
material adverse chance in the financial condition of Borrower,
any general partners of a partnership Borrower, any guarantor of
the Secured Indebtedness or of the performance by Borrower of any
of the terms of the Loan Documents or any part thereof (a
"GUARANTOR") or of any party liable for payment of any part of
the Secured Indebtedness since the date of Borrower's application
for the loan secured hereby, (iii) Borrower is not in default
under any note, loan or security agreement to which it is a
party, (iv) the execution and delivery of this Deed by Borrower
does not constitute a "FRAUDULENT CONVEYANCE" within the meaning
of Title 11 of the United States Code as now constituted or under
any other applicable statute, (v) no bankruptcy or insolvency
proceedings are pending or contemplated by or against Borrower,
and (vi) there are no existing, or pending actions or proceedings
effecting, any portion of the Premises except for possible
negligence actions or proceedings which are fully covered by
insurance, and, to Borrower's knowledge, none are threatened.
ARTICLE II
2.01 EVENTS OF DEFAULT. The occurrence of any one or more
of the following events shall be deemed to be an Event of Default
under this Deed notwithstanding any applicable grace period or
notice and cure period. A "DEFAULT" under this Deed shall mean
the continued existence of an Event of Default beyond the
expiration of any applicable grace period or notice and cure
period:
(a) Failure to pay the Note according to its terms;
(b) Failure to pay any other amounts payable under
this Deed;
(c) Failure to comply with any of the terms or
covenants of this Deed (other than as covered by subparagraphs
(a) and (b) of this Section);
(d) The occurrence of a Default under the Credit
Agreement or any of the Loan Documents or any other writing
executed by Borrower in connection with the Secured Indebtedness;
(e) The breach of any covenant or agreement contained
herein, or if any representation or warranty contained herein
should prove to have been false or misleading in any material
respect at the time made or deemed to be made;
(f) The filing by Borrower of a petition in voluntary
bankruptcy or under any chapter of the federal Bankruptcy Code or
other similar law, state or federal, whether now or hereafter
existing, or of an answer admitting insolvency or inability to
pay its debts;
(g) The adjudication of Borrower as a bankrupt, or
the appointment of a trustee or receiver for Borrower or for all
or a major portion of its property in any involuntary proceeding,
or the taking of jurisdiction by any court over the property of
Borrower or of the major part thereof in any involuntary
proceeding, for the reorganization, dissolution, liquidation or
winding up of Borrower and the failure to discharge such trustee
or receiver or relinquish such jurisdiction or vacate or stay
such adjudication or action within sixty (60) days;
(h) The making by Borrower of an assignment for the
benefit of creditors or the admitting by Borrower in writing of
its inability to pay its debts generally as they become due, or
the consent by Borrower to the appointment of a receiver or
trustee or liquidator of all of its properties or the major part
thereof;
(i) Default, including foreclosure and/or sale of any
collateral or other security, under or with respect to any other
obligations secured by all or any part of the Premises, whether
or not such obligation or security interest was consented to by
Walsh Greenwood prior to such default; or
(j) Abandonment of the Premises by the Borrower.
2.02 ACCELERATION OF MATURITY. If a Default shall have
occurred hereunder, then the whole amount of the Secured
Indebtedness, with the exception of debt evidenced by the Credit
Agreement and any items defined as "OBLIGATIONS" in the Credit
Agreement (except to the extent that such "OBLIGATIONS" may
include the Note secured by this Deed or items which are also
contained in subparagraphs (a), (b), (c), (e) and (f) of the
definition of Secured Indebtedness in this Deed), shall, at the
option of Walsh Greenwood, become immediately due and payable
without notice or demand, time being of the essence of this Deed
and of the Note secured hereby; and no omission on the part Walsh
Greenwood to exercise such option when entitled so to do shall
be considered as a waiver of such right. Notwithstanding that
the debt and obligations evidenced by the Credit Agreement may
not be accelerated if a Default shall have occurred hereunder,
the amounts collected by Walsh Greenwood pursuant to the
exercise of Walsh Greenwood's rights and remedies hereunder may
be applied to the Secured Indebtedness, including debt and
obligations evidenced by the Credit Agreement, in such priority
and proportions as Walsh Greenwood shall elect in its sole and
absolute discretion. In addition, notwithstanding the foregoing,
the debt and "OBLIGATIONS" under the Credit Agreement may be
accelerated upon the occurrence of a default thereunder or if
such Default described above is also a default under the Credit
Agreement.
2.03 RIGHT OF WALSH GREENWOOD TO ENTER AND TAKE POSSESSION.
(a) If any Default shall have occurred, Borrower, upon
demand of Walsh Greenwood , shall forthwith surrender to Walsh
Greenwood the actual possession of the Premises and if, and to
the extent, permitted by law, Walsh Greenwood may enter and take
possession of the Premises and may exclude Borrower and Borrowers
agents and employees wholly therefrom. In addition, if any
Default shall have occurred, Borrower, upon demand of Walsh
Greenwood , shall allow Walsh Greenwood or its agents or
engineers to enter onto the Premises, without taking possession
thereof, to conduct testing (including the taking of samples of
the Premises and underlying Land) for the presence of hazardous
materials and other environmental risks, to such extent as Walsh
Greenwood may require.
(b) Upon every such entering and taking of possession,
Walsh Greenwood may hold, store, use, operate, manage, control,
and maintain the Premises and conduct the business thereof and,
from time to time, (i) make all necessary and proper repairs,
renewals, replacements, additions, betterments and improvements
thereto and thereon and purchase or otherwise acquire additional
fixtures, personalty and other property, (ii) insure or keep the
Premises insured; (iii) manage and operate the Premises and
exercise all the rights and powers of Borrower, in its name or
otherwise, with respect to the same and (iv) enter into any and
a11 agreements with respect to the exercise by others of any of
the powers herein granted Walsh Greenwood , all as Walsh
Greenwood may from time to time determine to be to its best
advantage; and Walsh Greenwood may collect and receive all of
the income, rents, profits, issues and revenues of the Premises,
including those past due as well as those accruing thereafter
and, after deducting (aa) all expenses of taking, holding,
managing and operating the Premises (including compensation for
the services of all persons employed for such purposes); (bb) the
cost of all such maintenance, repairs, renewals, replacements,
additions, betterments, improvements, purchases, and
acquisitions; (cc) the cost of such insurance, (dd) such taxes,
assessments and other charges prior to the title of this Deed as
Walsh Greenwood may determine to pay; (ee) other proper charges
upon the Premises or any part thereof and (ff) the reasonable
compensation and expenses of attorneys and agents of Walsh
Greenwood , shall apply the remainder of the money so received by
Walsh Greenwood , first, to the payment of accrued interest on
the outstanding principal balance of the Note; second, to the
payment of late charges and costs of collection as provided in
the Note; third, to the payment of escrow deposits required in
Paragraph 1.02 hereof and finally to the payment of overdue
installments of principal.
(c) For the purpose of carrying out the provisions of
this paragraph 2.03, Borrower hereby constitutes and appoints
Walsh Greenwood the true and lawful attorney in fact of Borrower
to do and perform, from time to time, any and all actions
necessary and incidental to such purpose and does, by these
presents, ratify and confirm any and all actions of said attorney
in fact in the Premises.
(d) Whenever all such Defaults have been cured and
satisfied, Walsh Greenwood shall surrender possession of the
Premises to Borrower and upon such surrender, Borrower shall
retake possession thereof, provided that the right of Walsh
Greenwood to take possession from time to time, pursuant to
Subparagraph 2.03(a) shall exist if any subsequent Default shall
occur and be continuing
2.04 APPOINTMENT OF A RECEIVER.
(a) If a Default shall have occurred hereunder, then Walsh
Greenwood , upon application to a court of competent
jurisdiction, shall be entitled, without notice and without
regard to the adequacy of any security for the Secured
Indebtedness or the solvency of any party bound for its payment,
to the appointment of a receiver to take possession of and to
operate the Premises and to collect the rents, profits, issues
and revenues thereof.
(b) Borrower will pay to Walsh Greenwood upon demand all
reasonable expenses, including receiver's fees, reasonable
attorney's fees, costs and agent's compensation, incurred
pursuant to the provisions contained in this Paragraph 2.04; and
all such expenses shall be secured by this Deed.
2.05 POWER OF SALE. If a Default shall occur hereunder and,
as a result thereof, the Secured Indebtedness is accelerated as
aforesaid in Paragraph 2.02 and is due and payable in full, Walsh
Greenwood , at its option, may sell the Premises or any part of
the Premises at public sale or sales before the door of the
courthouse of the County in which the Premises or any part of the
Premises is situated, to the highest bidder for cash, in order to
pay the Secured Indebtedness and insurance premiums, liens,
assessments, taxes and charges, including utility charges, if
any, with accrued interest thereon, and all expenses of the sale
and of all proceedings in connection therewith, including
reasonable attorney's fees, if incurred, after advertising the
time, place and terms of sale once a week for four (4) weeks
immediately preceding such sale (but without regard to the number
of days) in a newspaper in which Sheriff's sales are advertised
in said County. The foregoing notwithstanding, Walsh Greenwood
may sell, or cause to be sold, any tangible or intangible
personal property, or any part thereof, and which constitutes a
part of the security hereunder, in the foregoing manner, or as
may otherwise be provided by law. Walsh Greenwood may bid and
purchase at any such sale and may satisfy Walsh Greenwood 's
obligation to purchase pursuant to Walsh Greenwood 's bid by
canceling an equivalent portion of any indebtedness then
outstanding and secured hereby.
2.06 AUTHORITY TO CONVEY. At any such sale, Walsh Greenwood
may execute and deliver to the purchaser a conveyance of the
Premises or any part of the Premises in fee simple with full
warranties of title and to this end, Borrower hereby constitutes
and appoints Walsh Greenwood the agent and attorney in fact of
Borrower to make such sale and conveyance, and thereby to divest
Borrower of all right, title and equity that Borrower may have in
and to the Premises and to vest the same in the purchaser or
purchasers at such sale or sales, and all the acts and doings of
said agent and attorney in fact are hereby ratified and confirmed
and any recitals in said conveyance or conveyances as to facts
essential to a valid sale shall be binding on Borrower. The
aforesaid power of sale and agency hereby granted are coupled
with an interest and are irrevocable by death or otherwise, are
granted as cumulative of the other remedies provided by law for
collection of the indebtedness secured hereby and shall not be
exhausted by one exercise thereof but may be exercised until full
payment of all sums secured hereby.
2.07 APPLICATION OF THE PROCEEDS OF SALE. Upon any such
sale pursuant to the aforementioned power of sale and agency, the
proceeds of said sale shall be applied first to payment of the
expenses of such sale and of all proceedings in connection
therewith, including, reasonable attorney's fees, then to said
insurance premiums, liens, assessments, taxes and charges
including utility charges with accrued interest thereon and then
to payment of the Secured Indebtedness, and finally, the
remainder, if any, shall be paid to Borrower.
2.08 BORROWER AS TENANT HOLDING OVER. In the event of any
such public sale pursuant to the aforesaid power of sale and
agency, Borrower shall be deemed a tenant holding over and shall
forthwith deliver possession of the Premises to the purchaser or
purchasers at such sale or be summarily dispossessed according to
provisions of law applicable to tenants holding over.
2.09 DISCONTINUANCE OF PROCEEDINGS AND RESTORATION OF THE
PARTIES. In case Walsh Greenwood shall have proceeded to
enforce any fight or remedy under this Deed by receiver, entry or
otherwise, and such proceedings shall have been discontinued or
abandoned for any reason or shall have been determined adversely
to Walsh Greenwood , then and in every such case Borrower and
Walsh Greenwood shall be restored to their former positions and
rights hereunder, and all rights, powers and remedies of Walsh
Greenwood shall continue as if no such proceeding had been
taken.
2.10 WAIVER. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY
HAVE UNDER THE CONSTITUTION OR THE LAWS OF THE STATE OF GEORGIA
OR THE CONSTITUTION OR THE LAWS OF THE UNITED STATES OF AMERICA
TO NOTICE, OTHER THAN EXPRESSLY PROVIDED FOR IN THIS DEED, OR TO
A JUDICIAL HEARING PRIOR TO THE EXERCISE OF ANY RIGHT OR REMEDY
PROVIDED BY THIS DEED TO SECURE DEBT AND SECURITY AGREEMENT TO
WALSH GREENWOOD AND BORROWER WAIVES BORROWER'S RIGHTS, IF ANY,
TO SET ASIDE OR INVALIDATE ANY SALE DULY CONSUMMATED IN
ACCORDANCE WITH THE PROVISIONS OF THIS DEED TO SECURE DEBT AND
SECURITY AGREEMENT ON THE GROUND (IF SUCH BE THE CASE) THAT THE
SALE WAS CONSUMMATED WITHOUT A PRIOR JUDICIAL HEARING. ALL
WAIVERS BY BORROWER IN THIS PARAGRAPH HAVE BEEN MADE VOLUNTARILY,
INTELLIGENTLY AND KNOWINGLY, AFTER BORROWER HAS BY BORROWER'S
ATTORNEY BEEN FIRST APPRISED OF AND COUNSELED WITH RESPECT TO
BORROWER'S POSSIBLE ALTERNATIVE RIGHTS.
BORROWER'S INITIALS: /s/ WHW
2.11 REMEDIES CUMULATIVE: APPLICABLE LAW: EXCLUSIVE FORUM.
No right, power or remedy conferred upon or reserved by Walsh
Greenwood by this Deed is intended to be exclusive of any other
right, power or remedy, but each and every such right, power and
remedy shall be cumulative and concurrent and shall be in
addition to any other right, power and remedy given hereunder or
now or hereafter existing at law or in equity or by statute.
Borrower and Walsh Greenwood agree that this Deed shall be
governed by and construed in accordance with the Laws of the
State of Georgia.
ARTICLE III
3.01 SUCCESSORS AND ASSIGNS INCLUDED IN PARTIES. Whenever
in this Deed one of the parties hereto is named or referred to,
the heirs, executors, legal representatives, successors and
permitted assigns of such parties shall be included and all
covenants and agreements contained in this indenture by or on
behalf of Borrower and by or on behalf of Walsh Greenwood shall
bind and inure to the benefit of their respective heirs,
executors, legal representatives, successors and assigns, whether
so expressed or not. The provisions of this Paragraph 3.01 are
subject to the restrictions on transfer contained elsewhere in
this Deed. This Deed is assignable by Walsh Greenwood , and any
assignment hereof by Walsh Greenwood shall operate to vest in
the assignee all rights and powers herein conferred upon and
granted to Walsh Greenwood .
3.02 NO PARTNERSHIP OR JOINT VENTURE. The relationship of
Borrower and Walsh Greenwood is solely and strictly that of
debtor and creditor. Borrower and Walsh Greenwood have not by
this Deed, by any other Loan Documents or otherwise created a
partnership or joint venture and do hereby expressly negate any
intent to do so.
3.03 HEADINGS. The headings of the sections, paragraphs and
subdivisions of this Deed are for the convenience of reference
only, are not to be considered a part hereof and shall not limit
or otherwise affect any of the terms hereof.
3.04 INVALID PROVISIONS TO AFFECT NO OTHERS. If fulfillment
of any provision hereof or any transaction related hereto or to
the Note, at the time performance of such provisions shall be
due, shall involve transcending the limit of validity prescribed
by law, then ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity; and if any clause or
provisions herein contained operates or would prospectively
operate to invalidate this Deed in whole or in part, then such
clause or provision only shall be held for naught, as though not
herein contained, and the remainder of this Deed shall remain
operative and in full force and effect.
3.05 NUMBER AND GENDER. Whenever the singular or plural
number, masculine or feminine or neuter gender is used herein, it
shall equally include the other.
3.06 NOTICE. All notices, requests, demands and other
communications required or permitted to be given thereunder shall
be sufficient if in writing and either (a) hand delivered, (b)
sent by United States Certified Mail or Registered Mail, Return
Receipt Requested, postage prepaid, or (c) sent by a nationally
recognized courier service (such as Federal Express or Airborne),
to the parties being given such notice at the following
addresses:
Borrower: Signal Apparel Company, Inc.
P.O. Box 4296
200 Manufacturers Road
Chattanooga, TN 37405
Attn: President
Walsh Greenwood : Walsh Greenwood & Co.
One East Putnam Avenue
Greenwich, CT 06830
With a copy to: Richard Aborn
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
Either party may change said address by giving the other party
hereto notice of such change of address. Notice giving as
hereinabove provided shall be deemed given on the date of hand
delivery, if delivered by hand, or on the date of its deposit in
the United States mail or with such nationally recognized courier
service, if so sent, and, unless such notice is sooner received,
such notice shall be deemed received (i) on the date of personal
delivery, if delivered by hand, (ii) on the third business day
(excluding Saturday, Sunday and legal holidays) after the date of
its deposit in the United States mail, if sent by United States
mail as aforesaid, or (iii) on the second business day (excluding
Saturday, Sunday and legal holidays), if sent by such nationally
recognized courier service.
3.07 THIS DEED. Walsh Greenwood shall have no obligation
to cancel this Deed or mark same "SATISFIED" until all
obligations of Borrower under the Loan Documents have been fully
performed by Borrower.
3.08 TIME OF THE ESSENCE. Time is of the essence with
respect to each and every covenant, agreement and obligation of
Borrower under this Deed, the Note and any and all other
instruments now or hereafter evidencing, securing or otherwise
relating to the Secured Indebtedness.
3.09 WAIVER OF JURY TRIAL. BORROWER AND WALSH GREENWOOD
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
ARISING OUT OF, UNDER OR IN CONNECTION WITH THE INDEBTEDNESS, THE
PREMISES, THIS DEED, THE NOTE OR ANY OTHER LOAN DOCUMENTS
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF EITHER PARTY OR ANY EXERCISE BY ANY PARTY OF THEIR
RESPECTIVE RIGHTS UNDER THE LOAN DOCUMENTS OR IN ANY WAY RELATED
TO THE PREMISES; THIS WAIVER BEING A MATERIAL INDUCEMENT FOR
WALSH GREENWOOD TO ADVANCE THE LOAN EVIDENCED BY THE NOTE.
3.10 ADDITIONAL RELEASE RIGHT. Notwithstanding that this
Deed secures all of the Secured Indebtedness as defined herein,
in the event that Borrower pays the Note in full and Walsh
Greenwood has no further obligations to advance to Borrower any
amounts under such Note, and, if, at such time, there exists no
Event of Default under the Note, the Credit Agreement or any
other Loan Document, then, upon written request of Borrower,
Walsh Greenwood will release and reconvey the Premises from the
security title and security interest of this Deed.
IN WITNESS WHEREOF, Borrower has executed this Deed under
seal the day and year first above written.
Signed, sealed and delivered SIGNAL APPAREL COMPANY, INC.,
in the presence of: an Indiana corporation
/s/Pamela B. Clingan
Witness By:/s/ William H. Watts
Name: William H. Watts
Title:Exec. Vice President
/s/ Geoffrey G. Young
Notary Public
Attest:/s/ Robert J. Powell
Name: Robert J. Powell
(NOTARY SEAL) Title: Secretary
My Commission Expires: (CORPORATE SEAL)
7/26/95
LIST OF OMITTED EXHIBITS AND SCHEDULES
Exhibit A Property Description
Exhibit B Permitted Exceptions
Exhibit C
Schedule 1 Description of "Debtor" and "Secured Party"
Walsh Greenwood's Tax Apportionment Affidavit
The Registrant hereby agrees to furnish a copy of any of such omitted Schedules
or Exhibits supplementally upon request of the Commission's staff.