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EXHIBIT 10.9
Georgia
THIS INSTRUMENT IS TO BE RECORDED IN THE DEED 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 SECTION 23
HEREOF, IN COMPLIANCE WITH THE REQUIREMENTS OF ARTICLE 9, SECTION 11-9-402 OF
THE OFFICIAL CODE OF GEORGIA, ANNOTATED (MICHIE, 1982).
Deed and Security Agreement
from
ERO INDUSTRIES, INC., Grantor
to
CREDIT SUISSE FIRST BOSTON, Grantee
DATED AS OF JUNE 12, 1997
After recording, please return to:
Simpson Thacher & Bartlett
a partnership which includes
professional corporations
425 Lexington Avenue
New York, New York 10017
ATTN: Erin L. Rothfuss, Esq.
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Georgia
DEED TO SECURE DEBT AND SECURITY AGREEMENT
THIS DEED TO SECURE DEBT AND SECURITY AGREEMENT, dated as of
June __, 1997 is made by ERO INDUSTRIES, INC., a ____________corporation
("Grantor"), whose address is 585 Slawin Court, Mt. Prospect, Illinois
60056-2183, to CREDIT SUISSE FIRST BOSTON, a Swiss banking corporation, as
administrative agent for the Lenders referred to below (in such capacity,
"Grantee"), whose address is 11 Madison Avenue, New York, New York 10010.
References to this "Deed" shall mean this instrument and any and all renewals,
modifications, amendments, supplements, extensions, consolidations,
substitutions, spreaders and replacements of this instrument.
Background
A. Grantor is the owner of the parcel(s) of real
property described on Schedule A attached (such real property, together with
all of the buildings, improvements, structures and fixtures now or subsequently
located thereon (the "Improvements"), being collectively referred to as the
"Real Estate").
B. Grantor is a subsidiary of Hedstrom Corporation, a
Delaware corporation ("Borrower"). Borrower is a party to the Credit Agreement
dated as of even date herewith (as the same may be amended, supplemented,
modified, extended, restated or replaced from time to time, the "Credit
Agreement") among Borrower, the several banks and other financial institutions
from time to time parties thereto (the "Lenders") and Grantee. All defined
terms used and not defined herein shall have the meanings assigned thereto in
the Credit Agreement. The Credit Agreement is incorporated by reference in
this Deed as if the terms thereof were fully set forth herein.
C. Pursuant to the Credit Agreement, (i) certain of the
Lenders have agreed to make the loans as described in Section 2 of the Credit
Agreement to Borrower (the "Tranche A Loans"); (ii) certain of the Lenders have
agreed to make term loans as described in Section 3 of the Credit Agreement to
Borrower (the "Tranche B Loans"); (iii) certain of the Lenders have agreed to
make revolving credit loans to Borrower (the "Revolving Credit Loans"); (iv)
the Issuing Lender has agreed to issue letters of credit for the account of
Borrower; and (v) the Swing Line Lender has agreed to make swing line loans to
the Borrower (the "Swing Line Loans"). The maximum aggregate principal amount
of the Tranche A Loans, the Tranche B Loans, the Revolving Credit Loans, the
Swing Line Loans and the L/C Obligations outstanding at any one time shall not
exceed $180,000,000.
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D. The Loans may be evidenced by promissory notes of
Borrower made payable to the order of the relevant Lender (as the same may be
amended, supplemented, modified, extended, restated or replaced from time to
time, the "Notes"). Each Loan bears interest at the rate stated in the Credit
Agreement; references in this Deed to the "Default Rate" shall mean, at any
time, the interest rate applicable to overdue principal amounts of the Loans as
provided in the Credit Agreement. The obligation of Borrower to reimburse the
Issuing Lender for amounts drawn under Letters of Credit (the "Reimbursement
Obligation") is governed by the section of the Credit Agreement entitled
"Letters of Credit."
E. Grantee is the administrative agent for the Lenders
pursuant to the Credit Agreement and the Subsidiaries Guarantee and Collateral
Agreement (as defined in the Credit Agreement). Grantor will benefit, as a
subsidiary of Borrower, from Borrower entering into the Credit Agreement. In
recognition of the benefits conferred upon Grantor, Grantor has executed the
Subsidiaries Guarantee and Collateral Agreement (the "Guarantee"), under which
Grantor guarantees to Grantee, as administrative agent for the Lenders, the
prompt and complete payment and performance by Borrower when due of the
Borrower Obligations (as defined in the Guarantee).
F. It is a condition precedent to the obligation of the
Lenders to make their respective Loans to Borrower and of the issuing Lender to
issue the Letters of Credit for the account of Borrower that Grantor shall have
executed and delivered this Deed to Grantee for the benefit of Grantee and the
other Lenders, and Grantor is willing to so execute and deliver this Deed in
order to obtain the benefits available to it from Borrower entering into the
Credit Agreement.
NOW, THEREFORE, in consideration of the premises and to induce
Grantee and the other Lenders to make their respective Loans to Borrower and
the Issuing Lender to issue the Letters of Credit for the account of Borrower,
Grantor hereby agrees with Grantee, for the benefit of Grantee and the other
Lenders, as follows:
Granting Clauses
THIS CONVEYANCE is intended to operate and is to be construed
as a deed passing title to the Subject Property (as defined below) to Grantee
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. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Grantor agrees that this Deed is given to secure the following:
(a) (i) the prompt and complete payment and performance when
due of the Borrower Obligations and (ii) all interest and fees,
indemnities, costs and expenses
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payable thereon by Grantor (the items set forth in clauses (i) and
(ii) being referred to collectively as the "Indebtedness"); and
(b) the performance of all covenants, agreements, obligations
and liabilities of Grantor (the "Obligations") whether direct or
indirect, absolute or contingent, due or to become due, or now
existing or hereinafter incurred, which may arise under or pursuant to
the provisions of the Guarantee, this Deed, any other document
securing payment of the Indebtedness (the "Security Documents") and
any amendments, supplements, extensions, renewals, restatements,
replacements or modifications of any of the foregoing (the Guarantee,
the Security Documents, the Credit Agreement and all other documents
and instruments from time to time evidencing, securing or guaranteeing
the payment of the Indebtedness or the performance of the Obligations,
as any of the same may be amended, supplemented, extended, renewed,
restated, replaced or modified from time to time, are collectively
referred to as the "Loan Documents");
GRANTOR HEREBY:
has bargained, sold, conveyed, granted, assigned, granted a security interest
in, warranted, pledged, given, aliened, remised, released, confirmed,
transferred and set over and by these presents does hereby bargain, sell,
convey, grant, assign, grant a security interest in, warrant, pledge, give,
alien, remise, release, confirm, transfer and set over unto Grantee, its
successors and assigns forever, in fee simple with power of sale, for the
benefit of Grantee, its successors and assigns:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever
of Grantor, in possession or expectancy, in and to the Real Estate or
any part thereof;
(C) all right, title and interest of Grantor in, to and under
all present and future easements, rights of way, gores of land,
streets, ways, alleys, passages, sewer rights, waters, water courses,
water and riparian rights, development rights, air rights, mineral
rights and all estates, rights, titles, interests, privileges,
licenses, tenements, hereditaments and appurtenances belonging,
relating or appertaining to the Real Estate, and any reversions,
remainders, rents, issues, profits and revenue thereof and all land
lying in the bed of any street, road or avenue, in front of or
adjoining the Real Estate to the center line thereof;
(D) all right, title and interest of Grantor in all of the
fixtures, chattels, business machines, machinery, apparatus,
equipment, furnishings, fittings and articles of
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personal property of every kind and nature whatsoever, and all
appurtenances and additions thereto and substitutions or replacements
thereof (together with, in each case, attachments, components, parts
and accessories) currently owned or subsequently acquired by Grantor
and now or subsequently attached to, or contained in or used or usable
in any way in connection with any operation or letting of the Real
Estate, including but without limiting the generality of the
foregoing, all screens, awnings, shades, blinds, curtains, draperies,
artwork, carpets, rugs, storm doors and windows, furniture and
furnishings, heating, electrical, and mechanical equipment, lighting,
switchboards, plumbing, ventilating, air conditioning and air-cooling
apparatus, refrigerating, and incinerating equipment, escalators,
elevators, loading and unloading equipment and systems, stoves,
ranges, laundry equipment, cleaning systems (including window cleaning
apparatus), telephones, communication systems (including satellite
dishes and antennae), televisions, computers, sprinkler systems and
other fire prevention and extinguishing apparatus and materials,
security systems, motors, engines, machinery, pipes, pumps, tanks,
conduits, appliances, fittings and fixtures of every kind and
description (all of the foregoing in this paragraph (D) being referred
to as the "Equipment");
(E) all right, title and interest of Grantor in and to all
substitutes and replacements of, and all additions and improvements
to, the Real Estate and the Equipment, subsequently acquired by or
released to Grantor or constructed, assembled or placed by Grantor on
the Real Estate, immediately upon such acquisition, release,
construction, assembling or placement, including, without limitation,
any and all building materials whether stored at the Real Estate or
offsite, and, in each such case, without any further mortgage,
conveyance, assignment or other act by Grantor;
(F) all right, title and interest of Grantor in, to and under
all leases, subleases, underlettings, concession agreements,
management agreements, licenses and other agreements relating to the
use or occupancy of the Real Estate or the Equipment or any part
thereof, now existing or subsequently entered into by Grantor and
whether written or oral and all guarantees of any of the foregoing
(collectively, as any of the foregoing may be amended, restated,
extended, renewed or modified from time to time, the "Leases"), and
all rights of Grantor in respect of cash and securities deposited
thereunder and the right to receive and collect the revenues, income,
rents, issues and profits thereof, together with all other rents,
royalties, issues, profits, revenue, income and other benefits arising
from the use and enjoyment of the Subject Property (as defined below)
(collectively, the "Rents");
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(G) all trade names, trade marks, logos, copyrights, good
will and books and records relating to or used in connection with the
operation of the Real Estate or the Equipment or any part thereof; all
general intangibles related to the operation of the Improvements now
existing or hereafter arising (collectively, the "Intellectual
Property");
(H) all right, title and interest of Grantor in all unearned
premiums under insurance policies now or subsequently obtained by
Grantor relating to the Real Estate or Equipment and Grantor's
interest in and to all proceeds of any such insurance policies
(including title insurance policies) including the right to collect
and receive such proceeds, subject to the provisions relating to
insurance generally set forth in the Credit Agreement; and all awards
and other compensation, including the interest payable thereon and the
right to collect and receive the same, made to the present or any
subsequent owner of the Real Estate or Equipment for the taking by
eminent domain, condemnation or otherwise, of all or any part of the
Real Estate or any easement or other right therein;
(I) to the extent assignable by Grantor, all right, title and
interest of Grantor in and to (i) all contracts from time to time
executed by Grantor or any manager or agent on its behalf relating to
the ownership, construction, maintenance, repair, operation,
occupancy, sale or financing of the Real Estate or Equipment or any
part thereof and all agreements relating to the purchase or lease of
any portion of the Real Estate or any property which is adjacent or
peripheral to the Real Estate, together with the right to exercise
such options and all leases of Equipment (collectively, the
"Contracts"), (ii) all consents, licenses, building permits,
certificates of occupancy and other governmental approvals relating to
construction, completion, occupancy, use or operation of the Real
Estate or any part thereof (collectively, the "Permits") and (iii) all
drawings, plans, specifications and similar or related items relating
to the Real Estate (collectively, the "Plans");
(J) all right, title and interest of Grantor in any and all
monies now or subsequently on deposit for the payment of real estate
taxes or special assessments against the Real Estate or for the
payment of premiums on insurance policies covering the foregoing
property; all capital, operating, reserve or similar accounts held by
or on behalf of Grantor and related to the operation of the Subject
Property, whether now existing or hereafter arising and all monies
held in any of the foregoing accounts and any certificates or
instruments related to or evidencing such accounts;
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(K) all accounts and revenues arising from the operation of
the Improvements including, without limitation, (i) any right to
payment now existing or hereafter arising for rental of hotel rooms or
other space or for goods sold or leased or for services rendered,
whether or not yet earned by performance, arising from the operation
of the Improvements or any other facility on the Subject Property and
(ii) to the extent assignable by Grantor, all rights to payment from
any consumer credit-charge card organization or entity including,
without limitation, payments arising from the use of the American
Express Card, the Visa Card, the Carte Blanche Card, the Mastercard or
any other credit card, including those now existing or hereafter
created, substitutions therefor, proceeds thereof (whether cash or
non-cash, movable or immovable, tangible or intangible) received upon
the sale, exchange, transfer, collection or other disposition or
substitution thereof and any and all of the foregoing and proceeds
therefrom; and
(L) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now
owned or held or subsequently acquired by Grantor and described in the
foregoing clauses (A) through (E) are collectively referred to as the
"Premises", and those described in the foregoing clauses (A) through (L) are
collectively referred to as the "Subject Property"; notwithstanding the
foregoing, "Subject Property" shall not include, with respect to Mortgagor, any
Leases, Intellectual Property, Contracts, Permits or Plans to the extent the
grant by Grantor of a security interest pursuant to this Deed in its rights
under such item is prohibited thereby and the consent of applicable Persons has
not been obtained, provided that the foregoing limitation shall not affect,
limit, restrict or impair the grant by Grantor of a security interest pursuant
to this Deed in any Account or any money or other amounts due or to become due
under such Lease, Intellectual Property, Contract, Permit or Plan, to the
extent provided in Section 9-318 of the New York UCC as in effect on the date
hereof.).
TO HAVE AND TO HOLD the Subject Property and the estate,
members, rights, privileges and appurtenances hereby granted or intended to be
granted unto Grantee, its successors and assigns in fee simple, forever, for
the uses and purposes set forth herein, and to the use, benefit and behoof of
Grantee, its successors and assigns, until the Indebtedness is fully paid and
the Obligations fully performed.
Should the indebtedness secured by this Deed be paid according
to the tenor and effect thereof when the same shall become due and payable, and
should Grantor perform all covenants herein contained in a timely manner, then
this Deed shall be cancelled and surrendered.
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Terms and Conditions
Grantor further represents, warrants, covenants and agrees
with Grantee as follows:
1. Warranty of Title. Grantor warrants that Grantor has good
title to the Real Estate in fee simple and good title to the rest of the
Subject Property, subject only to the matters that are set forth in Schedule B
of the title insurance policy or policies being issued to Grantee to insure the
lien of this Deed and those items permitted by the Credit Agreement
(collectively, the "Permitted Exceptions") and Grantor shall warrant, defend
and preserve such title and the grant and lien of this Deed with respect
thereto against all claims of all persons and entities. Grantor further
warrants that it is lawfully seized and possessed of the Subject Property and
has the right to grant this Deed.
2. Payment of Indebtedness. Grantor shall pay the
Indebtedness at the times and places and in the manner specified in the
Guarantee and shall perform all the Obligations.
3. Requirements.
(a) Grantor shall promptly comply with, or cause to be
complied with, and conform to all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, rules, regulations and requirements,
and irrespective of the nature of the work to be done, of each of the United
States of America, any State and any municipality, local government or other
political subdivision thereof and any agency, department, bureau, board,
commission or other instrumentality of any of them, now existing or
subsequently created (collectively, "Governmental Authority") which has
jurisdiction over the Subject Property and all covenants, restrictions and
conditions now or later of record which may be applicable to any of the Subject
Property, or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration, repair or reconstruction of any of the Subject
Property, except to the extent that failure to comply therewith could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect. All
present and future laws, statutes, codes, ordinances, orders, judgments,
decrees, rules, regulations and requirements of every Governmental Authority
applicable to Grantor or to any of the Subject Property and all covenants,
restrictions, and conditions which now or later may be applicable to any of the
Subject Property are collectively referred to as the "Legal Requirements".
(b) From and after the date of this Deed, Grantor shall not
by act or omission permit any building or other improvement on any premises not
subject to the lien of this Deed to rely on the Premises or any part thereof or
any interest therein to fulfill any Legal Requirement, and Grantor hereby
assigns to Grantee any and all rights to give consent for all or
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any portion of the Premises or any interest therein to be so used. Grantor
shall not by act or omission impair the integrity of any of the Real Estate
which is a single zoning lot as of the date hereof as a single zoning lot
separate and apart from all other premises. Any act or omission by Grantor
which would result in a violation of any of the provisions of this subsection
shall be void.
4. Payment of Taxes and Other Impositions. (a) Mortgagor
shall pay and discharge taxes and other charges in accordance with the Credit
Agreement.
(b) Any sums paid by Grantee in discharge of any taxes
permitted to be paid by Mortgagee pursuant to the Credit Agreement shall be (i)
a lien on the Premises secured hereby prior to any right or title to, interest
in, or claim upon the Premises subordinate to the lien of this Deed and (ii)
payable to Grantee as set forth in the Credit Agreement.
(c) Grantor shall not claim, demand or be entitled to receive
any credit or credits toward the satisfaction of this Deed or on any interest
payable thereon for any taxes assessed against the Subject Property or any part
thereof, and shall not claim any deduction from the taxable value of the
Subject Property by reason of this Deed.
5. Insurance. (a) Grantor shall maintain or cause to be
maintained on all of the Premises insurance as required under the Credit
Agreement.
(b) Grantor promptly shall comply in all material respects
with and conform to (i) all provisions of each such insurance policy, and (ii)
all requirements of the insurers applicable to Grantor or to any of the Subject
Property or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration or repair of any of the Subject Property. Grantor
shall not use or permit the use of the Subject Property in any manner which
would permit any insurer to cancel any insurance policy or void coverage
required to be maintained by this Deed.
(c) In the event of foreclosure of this Deed or other
transfer of title to the Subject Property all right, title and interest of
Grantor in and to any insurance policies then in force shall pass to the
purchaser or grantee.
6. Restrictions on Liens and Encumbrances. Except for the
lien of this Deed and the Permitted Exceptions, Grantor shall not further
mortgage, nor otherwise encumber the Subject Property nor create or suffer to
exist any lien, charge or encumbrance on the Subject Property, or any part
thereof, whether superior or subordinate to the lien of this Deed and whether
recourse or non-recourse.
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7. Due on Sale and Other Transfer Restrictions. Except as
expressly permitted under the Credit Agreement, Grantor shall not sell,
transfer, convey or assign all or any portion of, or any interest in, the
Subject Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a)
Grantor shall maintain or cause to be maintained all the Improvements in good
condition and repair (ordinary wear and tear excepted) and shall not commit or
suffer any waste of the Improvements. The Improvements shall not be demolished
or materially altered, nor any material additions built, without the prior
written consent of Grantee, such consent not to be unreasonably withheld.
(b) Subject to Section 10.3 of the Credit Agreement, Grantor
shall pay or cause to be paid utility charges and all other assessments or
charges of a similar nature, whether public or private, affecting the Premises
or any portion thereof.
9. Condemnation/Eminent Domain. Immediately upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Subject Property, or any portion thereof, Grantor will notify Grantee of the
pendency of such proceedings. During the continuance of an Event of Default,
and subject to Section 7.5(i) of the Credit Agreement, Grantee is hereby
authorized and empowered by Grantor to settle or compromise any claim in
connection with such condemnation and to receive all awards and proceeds
thereof to be held by Grantee as collateral to secure the payment and
performance of the Indebtedness and the Obligations. Notwithstanding the
preceding sentence, subject to the provisions of the Credit Agreement and
provided that no Event of Default shall have occurred and be continuing,
Grantor shall, at its expense, diligently prosecute any such proceeding
relating to such condemnation, settle or compromise any claims in connection
therewith and receive any awards or proceeds thereof, provided that Grantor
shall comply with the applicable provisions of the Credit Agreement.
10. Restoration. Grantor will apply insurance proceeds and
condemnation proceeds and awards in accordance with the Credit Agreement.
11. Leases. Except as otherwise provided in the Credit
Agreement, (a) Grantor shall not (i) execute an assignment or pledge of any
Lease relating to all or any portion of the Subject Property other than in
favor of Grantee or (ii) without the prior written consent of Grantee, execute
or permit to exist any Lease of any of the Subject Property, except as provided
in the Credit Agreement.
(b) As to any Lease relating to all or any portion of the
Subject Property, Grantor shall not accept a surrender or terminate, cancel,
rescind, supplement, alter, revise, modify or amend such Lease or permit any
such action to be taken nor shall
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Grantor accept the payment of rent more than thirty (30) days in advance of its
due date, except to the extent such action or payment occurs either in the
ordinary course of business or according to Grantor's reasonable business
judgment.
12. Further Assurances/Estoppel Certificates. To further
assure Grantee's rights under this Deed, Grantor agrees upon demand of Grantee
to do any act or execute any additional documents (including, but not limited
to, security agreements on any personalty included or to be included in the
Subject Property and a separate assignment of each Lease in recordable form) as
may be reasonably required by Grantee to confirm the lien of this Deed and all
other rights or benefits conferred on Grantee.
13. Grantee's Right to Perform. If Grantor fails to perform
any of the covenants or agreements of Grantor, Grantee may at any time (but
shall be under no obligation to) pay or perform the same, and the amount or
cost thereof, as set forth in the Credit Agreement, shall immediately be due
from Grantor to Grantee and the same shall be secured by this Deed and shall be
a lien on the Subject Property prior to any right, title to, interest in or
claim upon the Subject Property attaching subsequent to the lien of this Deed.
No payment or advance of money by Grantee under this Section shall be deemed or
construed to cure Grantor's default or waive any right or remedy of Grantee.
14. Materials of Environmental Concern. Grantor shall comply
in all respects with Section 8.15 of the Credit Agreement.
15. Events of Default. The occurrence of any Event of
Default as such term is defined in the Credit Agreement shall constitute an
Event of Default hereunder.
16. Remedies.
(a) Subject to the provisions of the Credit Agreement, upon
the occurrence of any Event of Default, in addition to any other rights and
remedies Grantee may have pursuant to the Loan Documents, or as provided by
law, and without limitation, (x) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of Section 12 of the Credit Agreement,
automatically the Indebtedness and all other amounts owing under the Guarantee,
this Deed and the other Security Documents immediately shall become due and
payable, and (y) if such event is any other Event of Default, with the consent
of the Required Lenders, the Grantee may, or upon the request of the Required
Lenders, the Grantee shall, by notice to Grantor, declare the Indebtedness
(together with accrued interest thereon) and all other amounts payable under
the Guarantee, this Deed and the other Security Documents to be immediately due
and payable. Except as expressly provided in the Credit Agreement, notice of
intention to accelerate, notice of acceleration, presentment, demand, protest
and all other notices of any kind are hereby
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expressly waived. In addition, upon the occurrence of any Event of Default,
Grantee may immediately take such action, without notice or demand, as it deems
advisable to protect and enforce its rights against Grantor and in and to the
Subject Property, including, but not limited to, the following actions, each of
which may be pursued concurrently or otherwise, at such time and in such manner
as Grantee may determine, in its sole discretion, without impairing or
otherwise affecting the other rights and remedies of Grantee:
(i) Grantee may, to the extent permitted by applicable law,
(A) institute and maintain an action to foreclose this Deed as a lien
against all or any part of the Subject Property, (B) institute and
maintain an action on the Guarantee, (C) sell all or part of the
Subject Property (Grantor expressly granting to Grantee the power of
sale as more particularly described in subsection (iii) below), or (D)
take such other action at law or in equity for the enforcement of this
Deed or any of the Loan Documents as the law may allow. Grantee may
proceed in any such action to final judgment and execution thereon for
all sums due hereunder, together with interest thereon at the Default
Rate and all costs of suit, including, without limitation, reasonable
attorneys' fees and disbursements. Interest at the Default Rate shall
be due on any judgment obtained by Grantee from the date of judgment
until the date upon which actual payment is made of the full amount of
the judgment.
(ii) Grantee may personally, or by its agents, attorneys and
employees and without regard to the adequacy or inadequacy of the
Subject Property or any other collateral as security for the
Indebtedness and Obligations enter into and upon the Subject Property
and each and every part thereof and exclude Grantor and its agents and
employees therefrom without liability for trespass, damage or
otherwise (Grantor hereby agreeing to surrender possession of the
Subject Property to Grantee upon demand at any such time) and use,
operate, manage, maintain and control the Subject Property and every
part thereof. Following such entry and taking of possession, Grantee
shall be entitled, without limitation, (x) to lease all or any part or
parts of the Subject Property for such periods of time and upon such
conditions as Grantee may, in its discretion, deem proper, (y) to
enforce, cancel or modify any Lease and (z) generally to execute, do
and perform any other act, deed, matter or thing concerning the
Subject Property as Grantee shall deem appropriate as fully as Grantor
might do.
(iii) Grantor hereby grants to Grantee and assigns, the
following irrevocable power of attorney and agency (which are coupled
with an interest): to sell all or part of the Subject Property at
auction, at the usual place for conducting sales at the Court House in
the County where the
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land or any part thereof lies, in the State of Georgia, to the highest
bidder for cash, after advertising the time, terms and place of such
sale once a week for four weeks immediately preceding such sale (but
without regard to the number of days) in a newspaper published in the
County where the land lies, or in the paper in which the Sheriff's
advertisements for such County are published, all other notice being
hereby waived by Grantor, and Grantee or any person on behalf of
Grantee, or assigns, may bid and purchase at such sale and thereupon
execute and deliver to the purchaser or purchasers at such sale a
sufficient conveyance of said Subject Property with full warranty of
title (or without warranties if Grantee shall so elect), in fee
simple, which conveyance shall contain recitals as to the happenings
of the default upon which the execution of the power of sale herein
granted depends, and Grantor hereby constitutes and appoints Grantee
and assigns, the agent and attorney in fact of Grantor to make such
recitals, and hereby covenants and agrees that the recitals so to be
made by Grantee, or assigns, shall be binding and conclusive upon
Grantor, and assigns of Grantor, and that the conveyance to be made by
Grantee or assigns, shall be effectual to perpetually bar all suits in
law and in equity and the equity of redemption of Grantor, or the
successors in interest of Grantor, in and to the Subject Property, and
Grantee or assigns, shall collect the proceeds of such sale, and after
reserving therefrom the entire amount of principal and accrued
interest due, together with the amount of any taxes, liens, charges,
including utility charges, if any, assessments and premiums of
insurance or other payments theretofore paid by Grantee, with interest
thereon from date of payment, together with all costs and expenses of
sale and fifteen percentum of the aggregate amount due for attorney's
fees, shall pay any over-plus to Grantor, or to the heirs or assigns
of Grantor as provided by law. The power and agency hereby granted
are coupled with an interest and are irrevocable and are granted as
cumulative to all other remedies for collection and enforcement of the
Indebtedness and the Obligations provided for herein or otherwise
provided by law.
(iv) Grantee may adjourn from time to time any sale by
Grantee to be made under or by virtue of this Deed by announcement at
the time and place appointed for such sale or for such adjourned sale
or sales and upon notice to Grantor; and, except as otherwise provided
by any applicable provision of law, Grantee, without further notice or
publication, may make such sale at the time and place to which the
same shall be so adjourned.
(v) Upon the completion of any sale or sales made by Grantee
under or by virtue of this Section, Grantee, or an officer of any
court empowered to do so, shall execute and deliver to the accepted
purchaser or purchasers a good and
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sufficient instrument, or good and sufficient instruments, conveying,
assigning and transferring all estate, right, title and interest in
and to the property and rights sold. Grantee is hereby irrevocably
appointed the true and lawful attorney of Grantor, in its name and
stead, to make all necessary conveyances, assignments, transfers and
deliveries of the Subject Property and rights so sold and for that
purpose Grantee may execute all necessary instruments of conveyance,
assignment and transfer, and may substitute one or more persons with
like power, Grantor hereby ratifying and confirming all that its said
attorney or such substitute or substitutes shall lawfully do by virtue
hereof. Any such sale or sales made under or by virtue of this
Section, whether made under the power of sale herein granted or under
or by virtue of judicial proceedings or of a judgment or decree of
foreclosure and sale, shall operate to divest all the estate, right,
title, interest, claim and demand whatsoever, whether at law or in
equity, of Grantor in and to the properties and rights so sold, and
shall be a perpetual bar both at law and in equity against Grantor and
against any and all persons claiming or who may claim the same, or any
part thereof from, through or under Grantor.
(vi) No recovery of any judgment by Grantee and no levy of an
execution under any judgment upon the Subject Property or upon any
other property of Grantor shall affect in any manner or to any extent,
the lien and title of this Deed upon the Subject Property or any part
thereof, or any liens, title, rights, powers or remedies of Grantee
hereunder, but such liens, titles, rights, powers and remedies of
Grantee shall continue unimpaired as before.
(b) The holder of this Deed, in any action to exercise the
rights granted hereunder (including, without limitation, exercise of the power
of sale contained herein or foreclosure of this Deed as a mortgage), shall be
entitled to the appointment of a receiver. In case of a any sale pursuant to
this Deed, the Real Estate may be sold, at Grantee's election, in one parcel or
in more than one parcel and Grantee is specifically empowered, (without being
required to do so, and in its sole and absolute discretion) to cause successive
sales of portions of the Subject Property to be held.
(c) In the event of any breach of any of the covenants,
agreements, terms or conditions contained in this Deed, and notwithstanding to
the contrary any exculpatory or non-recourse language which may be contained
herein, Grantee shall be entitled to enjoin such breach and obtain specific
performance of any covenant, agreement, term or condition and Grantee shall
have the right to invoke any equitable right or remedy as though other remedies
were not provided for in this Deed.
17. Right of Grantee to Credit Sale. Upon the occurrence of
any sale made under this Deed, whether made under
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the power of sale or by virtue of judicial proceedings or of a judgment or
decree of foreclosure and sale, Grantee may bid for and acquire the Subject
Property or any part thereof. In lieu of paying cash therefor, Grantee may
make settlement for the purchase price by crediting upon the Indebtedness or
other sums secured by this Deed the net sales price after deducting therefrom
the expenses of sale and the cost of the action and any other sums which
Grantee is authorized to deduct under this Deed. In such event, this Deed, the
Guarantee and documents evidencing expenditures secured hereby may be presented
to the person or persons conducting the sale in order that the amount so used
or applied may be credited upon the Indebtedness as having been paid.
18. Appointment of Receiver. If an Event of Default shall
have occurred and be continuing, Grantee as a matter of right and without
notice to Grantor, unless otherwise required by applicable law, and without
regard to the adequacy or inadequacy of the Subject Property or any other
collateral as security for the Indebtedness and Obligations or the interest of
Grantor therein, shall have the right to apply to any court having jurisdiction
to appoint a receiver or receivers or other manager of the Subject Property,
and Grantor hereby irrevocably consents to such appointment and waives notice
of any application therefor (except as may be required by law). Any such
receiver or receivers shall have all the usual powers and duties of receivers
in like or similar cases and all the powers and duties of Grantee in case of
entry as provided in this Deed, including, without limitation and to the extent
permitted by law, the right to enter into leases of all or any part of the
Subject Property, and shall continue as such and exercise all such powers until
the date of confirmation of sale of the Subject Property unless such
receivership is sooner terminated.
19. Extension, Release, etc. (a) Without affecting the lien
or charge of this Deed upon any portion of the Subject Property not then or
theretofore released as security for the full amount of the Indebtedness,
Grantee may, from time to time and without notice, agree to (i) release any
person liable for the Indebtedness, (ii) extend the maturity or alter any of
the terms of the Indebtedness or any guaranty thereof, (iii) grant other
indulgences, (iv) release or reconvey, or cause to be released or reconveyed at
any time at Grantee's option any parcel, portion or all of the Subject
Property, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make compositions or other arrangements
with debtors in relation thereto. If at any time this Deed shall secure less
than all of the principal amount of the Indebtedness, it is expressly agreed
that any repayments of the principal amount of the Indebtedness shall not
reduce the amount of the lien of this Deed until the lien amount shall equal
the principal amount of the Indebtedness outstanding.
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(b) No recovery of any judgment by Grantee and no levy of
an execution under any judgment upon the Subject Property or upon any other
property of Grantor shall affect the estate granted by this Deed or any liens,
rights, powers or remedies of Grantee hereunder, and such liens, rights, powers
and remedies shall continue unimpaired.
(c) If Grantee shall have the right to exercise the
rights granted herein (including, without limitation, exercise of the power of
sale or foreclosure of this Deed as a mortgage), Grantor authorizes Grantee at
its option to sell the Subject Property or to foreclose the lien of this Deed
subject to the rights of any tenants of the Subject Property. The failure to
make any such tenants parties defendant to any such sale or proceeding and to
extinguish their rights will not be asserted by Grantor as a defense to any
proceeding instituted by Grantee to collect the Indebtedness or to foreclose
the lien of this Deed.
(d) Unless expressly provided otherwise, in the event
that ownership of this Deed and title to the Subject Property or any estate
therein shall become vested in the same person or entity, this Deed shall not
merge in such title but shall continue as a valid lien on the Subject Property
for the amount secured hereby.
20. Security Agreement under Uniform Commercial Code. (a) It
is the intention of the parties hereto that this Deed shall constitute a
Security Agreement within the meaning of the Uniform Commercial Code (the
"Code") of the State of Georgia. If an Event of Default shall occur under this
Deed, then in addition to having any other right or remedy available at law or
in equity, Grantee shall have the option of either (i) proceeding under the
Code and exercising such rights and remedies as may be provided to a secured
party by the Code with respect to all or any portion of the Subject Property
which is personal property (including, without limitation, taking possession of
and selling such property) or (ii) treating such property as real property and
proceeding with respect to both the real and personal property constituting the
Subject Property in accordance with Grantee's rights, powers and remedies with
respect to the real property (in which event the default provisions of the Code
shall not apply). If Grantee shall elect to proceed under the Code, then ten
days' notice of sale of the personal property shall be deemed reasonable notice
and the reasonable expenses of retaking, holding, preparing for sale, selling
and the like incurred by Grantee shall include, but not be limited to,
reasonable attorneys' fees and legal expenses. At Grantee's request, Grantor
shall assemble the personal property and make it available to Grantee at a
place designated by Grantee which is reasonably convenient to both parties.
(b) Grantor and Grantee agree, to the extent permitted by law,
that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures
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on the Real Estate; (ii) this Deed upon recording or registration in the real
estate records of the proper office shall constitute a financing statement
filed as a "fixture filing" within the meaning of Sections 9-313 and 9-402 of
the Code; (iii) Grantor is the record owner of the Real Estate; and (iv) the
addresses of Grantor and Grantee are as set forth on the first page of this
Deed.
(c) Grantor, upon request by Grantee from time to time, shall
execute, acknowledge and deliver to Grantee one or more separate security
agreements, in form satisfactory to Grantee, covering all or any part of the
Subject Property and will further execute, acknowledge and deliver, or cause to
be executed, acknowledged and delivered, any financing statement, affidavit,
continuation statement or certificate or other document as Grantee may
reasonably request in order to perfect, preserve, maintain, continue or extend
the security interest under and the priority of this Deed and such security
instrument. Grantor further agrees to pay to Grantee on demand all reasonable
costs and expenses incurred by Grantee in connection with the preparation,
execution, recording, filing and re-filing of any such document. Grantor shall
from time to time, on request of Grantee, deliver to Grantee an inventory in
reasonable detail of any of the Subject Property which constitutes personal
property. If Grantor shall fail to furnish any financing or continuation
statement within 10 days after request by Grantee, then pursuant to the
provisions of the Code, Grantor hereby authorizes Grantee, without the
signature of Grantor, to execute and file any such financing and continuation
statements. The filing of any financing or continuation statements in the
records relating to personal property or chattels shall not be construed as in
any way impairing the right of Grantee to proceed against any personal property
encumbered by this Deed as real property, as set forth above.
21. Assignment of Rents. Grantor hereby assigns to Grantee
the Rents as further security for the payment of the Indebtedness and
performance of the Obligations, and Grantor grants to Grantee the right to
enter the Subject Property for the purpose of collecting the same and to let
the Subject Property or any part thereof, and to apply the Rents on account of
the Indebtedness. The foregoing assignment and grant is present and absolute
and shall continue in effect until the Indebtedness is paid in full, but
Grantee hereby waives the right to enter the Subject Property for the purpose
of collecting the Rents and Grantor shall be entitled to collect, receive, use
and retain the Rents until the occurrence and continuance of an Event of
Default under this Deed; such right of Grantor to collect, receive, use and
retain the Rents may be revoked by Grantee upon the occurrence and continuance
of any Event of Default under this Deed by giving not less than five days'
written notice of such revocation to Grantor; in the event such notice is
given, Grantor shall pay over to Grantee, or to any receiver appointed to
collect the Rents, any lease security deposits, and shall pay
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monthly in advance to Grantee, or to any such receiver, the fair and reasonable
rental value as determined by Grantee for the use and occupancy of the Subject
Property or of such part thereof as may be in the possession of Grantor or any
affiliate of Grantor, and upon default in any such payment Grantor and any such
affiliate will vacate and surrender the possession of the Subject Property to
Grantee or to such receiver, and in default thereof may be evicted by summary
proceedings or otherwise. Grantor shall not accept prepayments of installments
of Rent to become due for a period of more than one month in advance (except
for security deposits and estimated payments of percentage rent, if any, or as
otherwise provided in such Lease).
22. Additional Rights. The holder of any subordinate lien or
deed to secure debt on the Subject Property shall have no right to terminate
any Lease whether or not such Lease is subordinate to this Deed nor shall any
holder of any subordinate lien or deed to secure debt join any tenant under any
Lease in any action to foreclose the lien or exercise the rights under such
deed to secure debt or modify, interfere with, disturb or terminate the rights
of any tenant under any Lease. By recordation of this Deed all holders or
subordinate liens or deeds to secure debt are subject to and notified of this
provision, and any action taken by any such holder contrary to this provision
shall be null and void. Upon the occurrence of any Event of Default, Grantee
may, in its sole discretion and without regard to the adequacy of its security
under this Deed, apply all or any part of any amounts on deposit with Grantee
under this Deed against all or any part of the Indebtedness. Any such
application shall not be construed to cure or waive any Default or Event of
Default or invalidate any act taken by Grantee on account of such Default or
Event of Default.
23. Notices. All notices, requests, demands and other
communications hereunder shall be given in accordance with subsection 10.7 of
the Credit Agreement to Grantor and Grantee as specified therein.
24. No Oral Modification. This Deed may not be amended,
supplemented, terminated or otherwise modified except in accordance with
subsection 14.1 of the Credit Agreement. Any agreement made by Grantor and
Grantee after the date of this Deed relating to this Deed shall be superior to
the rights of the holder of any intervening or subordinate lien or encumbrance.
25. Partial Invalidity. In the event any one or more of the
provisions contained in this Deed shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary anything contained in this Deed or
in any provisions of the Indebtedness or Loan Documents, the obligations of
Grantor and of any other obligor
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under the Indebtedness or Loan Documents shall be subject to the limitation
that Grantee shall not charge, take or receive, nor shall Grantor or any other
obligor be obligated to pay to Grantee, any amounts constituting interest in
excess of the maximum rate permitted by law to be charged by Grantee.
26. Grantor's Waiver of Rights. To the fullest extent
permitted by law, Grantor waives the benefit of all laws now existing or that
may subsequently be enacted providing for (i) any appraisement before sale of
any portion of the Subject Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Subject Property from attachment, levy or sale under execution
or exemption from civil process. To the full extent Grantor may do so, Grantor
agrees that Grantor will not at any time insist upon, plead, claim or take the
benefit or advantage of any law now or hereafter in force providing for any
appraisement, valuation, stay, exemption, homestead, extension or redemption,
or requiring Grantee to exercise the rights granted herein (including, without
limitation, exercise of the power of sale or foreclosure of this Deed as a
mortgage) before exercising any other remedy granted hereunder and Grantor, for
Grantor and its successors and assigns, and for any and all persons ever
claiming any interest in the Subject Property, to the extent permitted by law,
hereby waives and releases all rights of redemption, homestead, valuation,
appraisement, stay of execution, notice of election to mature or declare due
the whole of the secured indebtedness and marshalling in the event of Grantee's
exercise of the rights granted herein (including, without limitation, exercise
of the power of sale or foreclosure of this Deed as a mortgage).
27. Remedies Not Exclusive. Grantee shall be entitled to
enforce payment of the Indebtedness and performance of the Obligations and to
exercise all rights and powers under this Deed or under any of the other Loan
Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Indebtedness and Obligations may now or
hereafter be otherwise secured, whether by deed to secure debt, mortgage,
security agreement, pledge, lien, assignment or otherwise. Neither the
acceptance of this Deed nor its enforcement, shall prejudice or in any manner
affect Grantee's right to realize upon or enforce any other security now or
hereafter held by Grantee, it being agreed that Grantee shall be entitled to
enforce this Deed and any other security now or hereafter held by Grantee in
such order and manner as Grantee may determine in its absolute discretion. No
remedy herein conferred upon or reserved to Grantee is intended to be exclusive
of any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute. Every power or
remedy given by any of the Loan Documents to Grantee or to which it may
otherwise be entitled, may be exercised,
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concurrently or independently, from time to time and as often as may be deemed
expedient by Grantee. In no event shall Grantee, in the exercise of the
remedies provided in this Deed (including, without limitation, in connection
with the assignment of Rents to Grantee, or the appointment of a receiver and
the entry of such receiver on to all or any part of the Subject Property), be
deemed a "mortgagee in possession," and Grantee shall not in any way be made
liable for any act, either of commission or omission, in connection with the
exercise of such remedies.
28. Multiple Security. If (a) the Premises shall consist of
one or more parcels, whether or not contiguous and whether or not located in
the same county, or (b) in addition to this Deed, Grantee shall now or
hereafter hold one or more additional deeds to secure debt, mortgages, liens,
deeds of trust or other security (directly or indirectly) for the Indebtedness
upon other property in the State in which the Premises are located (whether or
not such property is owned by Grantor or by others) or (c) both the
circumstances described in clauses (a) and (b) shall be true, then to the
fullest extent permitted by law, Grantee may, at its election, commence or
consolidate in a single sale or foreclosure action all sales and foreclosure
proceedings against all such collateral securing the Indebtedness (including
the Subject Property), which action may be brought or consolidated in the
courts of any county in which any of such collateral is located. Grantor
acknowledges that the right to maintain a consolidated sale or foreclosure
action is a specific inducement to Grantee to extend the Indebtedness, and
Grantor expressly and irrevocably waives any objections to the commencement or
consolidation of the sale or foreclosure proceedings in a single action and any
objections to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have. Grantor further agrees that if
Grantee shall be prosecuting one or more sale or foreclosure or other
proceedings against a portion of the Subject Property or against any collateral
other than the Subject Property, which collateral directly or indirectly
secures the Indebtedness, or if Grantee shall have fulfilled the statutory
requirements for a sale or shall have obtained a judgment of foreclosure and
sale or similar judgment against such collateral, then, whether or not such
sale or other proceedings are being maintained or judgments were obtained in or
outside the State in which the Premises are located, Grantee may commence or
continue sale or foreclosure proceedings and exercise its other remedies
granted in this Deed against all or any part of the Subject Property and
Grantor waives any objections to the commencement or continuation of a sale or
foreclosure pursuant to this Deed or exercise of any other remedies hereunder
based on such other proceedings or judgments, and waives any right to seek to
dismiss, stay, remove, transfer or consolidate either any action under this
Deed or such other proceedings on such basis. Neither the commencement nor
continuation of proceedings to sell the Subject Property pursuant hereto or to
foreclose this Deed nor the exercise of any other rights hereunder nor the
recovery of any judgment by Grantee in
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any such proceedings shall prejudice, limit or preclude Grantee's right to
commence or continue one or more sales or foreclosure or other proceedings or
obtain a judgment against any other collateral (either in or outside the State
in which the Premises are located) which directly or indirectly secures the
Indebtedness, and Grantor expressly waives any objections to the commencement
of, continuation of, or entry of a judgment in such other sales or proceedings
or exercise of any remedies in such proceedings based upon any action or
judgment connected to this Deed, and Grantor also waives any right to seek to
dismiss, stay, remove, transfer or consolidate either such other proceedings or
any action under this Deed on such basis. It is expressly understood and
agreed that to the fullest extent permitted by law, Grantee may, at its
election, cause the sale of all collateral which is the subject of a single
sale or foreclosure action at either a single sale or at multiple sales
conducted simultaneously and take such other measures as are appropriate in
order to effect the agreement of the parties to dispose of and administer all
collateral securing the Indebtedness (directly or indirectly) in the most
economical and least time-consuming manner.
29. Successors and Assigns. All covenants of Grantor
contained in this Deed are imposed solely and exclusively for the benefit of
Grantee and its successors and assigns, and no other person or entity shall
have standing to require compliance with such covenants or be deemed, under any
circumstances, to be a beneficiary of such covenants, any or all of which may
be freely waived in whole or in part by Grantee at any time if in its sole
discretion it deems such waiver advisable. All such covenants of Grantor shall
run with the land and bind Grantor, the successors and assigns of Grantor (and
each of them) and all subsequent owners, encumbrancers and tenants of the
Subject Property, and shall inure to the benefit of Grantee, its successors and
assigns. The word "Grantor" shall be construed as if it read "Grantors"
whenever the sense of this Deed so requires and if there shall be more than one
Grantor, the obligations of the Grantors shall be joint and several.
30. No Waivers, etc. Any failure by Grantee to insist upon
the strict performance by Grantor of any of the terms and provisions of this
Deed shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Grantee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Grantor of any and all of
the terms and provisions of this Deed to be performed by Grantor. Grantee may
release, regardless of consideration and without the necessity for any notice
to or consent by the holder of any subordinate lien on the Subject Property,
any part of the security held for the obligations secured by this Deed without,
as to the remainder of the security, in anywise impairing or affecting the lien
of this Deed or the priority of such lien over any subordinate lien.
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31. Governing Law, etc. This Deed shall be governed by and
construed in accordance with the laws of the State of Georgia, except that
Grantor expressly acknowledges that by its terms the Guarantee shall be
governed and construed in accordance with the laws of the State of New York,
without regard to principles of conflict of law, and for purposes of
consistency, Grantor agrees that in any in personam proceeding related to this
Deed the rights of the parties to this Deed shall also be governed by and
construed in accordance with the laws of the State of New York governing
contracts made and to be performed in that State, without regard to principles
of conflict of law.
32. Waiver of Trial by Jury. Grantor and Grantee each hereby
irrevocably and unconditionally waive trial by jury in any action, claim, suit
or proceeding relating to this Deed and for any counterclaim brought therein.
Grantor hereby waives all rights to interpose any counterclaim in any suit
brought by Grantee hereunder and all rights to have any such suit consolidated
with any separate suit, action or proceeding.
33. Certain Definitions. Unless the context clearly
indicates a contrary intent or unless otherwise specifically provided herein,
words used in this Deed shall be used interchangeably in singular or plural
form and the word "Grantor" shall mean "each Grantor or any subsequent owner or
owners of the Subject Property or any part thereof or interest therein," the
word "Grantee" shall mean "Grantee or any subsequent holder of the Guarantee,"
the word "person" shall include any individual, corporation, partnership,
trust, unincorporated association, government, governmental authority, or other
entity, and the words "Subject Property" shall include any portion of the
Subject Property or interest therein. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa. The captions in this Deed are for convenience or
reference only and in no way limit or amplify the provisions hereof.
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34. WAIVER OF GRANTOR'S RIGHTS. BY EXECUTION OF THIS DEED
AND BY INITIALING THIS ARTICLE 34, GRANTOR EXPRESSLY: (A) ACKNOWLEDGES THE
RIGHT TO ACCELERATE THE INDEBTEDNESS EVIDENCED BY THE NOTES AND THE POWER OF
ATTORNEY GIVEN HEREIN TO GRANTEE TO SELL THE SUBJECT PROPERTY BY NONJUDICIAL
SALE UPON DEFAULT BY GRANTOR WITHOUT ANY JUDICIAL HEARING AND WITHOUT ANY
NOTICE (EXCEPT AS OTHERWISE PROVIDED HEREIN); (B) EXCEPT TO THE EXTENT PROVIDED
OTHERWISE HEREIN, WAIVES ANY AND ALL RIGHTS WHICH GRANTOR MAY HAVE UNDER THE
CONSTITUTION OF THE UNITED STATES (INCLUDING THE FIFTH AND FOURTEENTH
AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE CONSTITUTIONS FOR THE
SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW, TO NOTICE AND TO
JUDICIAL HEARING PRIOR TO THE EXERCISE BY GRANTEE OF ANY RIGHT OR REMEDY HEREIN
PROVIDED TO GRANTEE; (C) ACKNOWLEDGES THAT GRANTOR HAS READ THIS DEED AND ITS
PROVISIONS HAVE BEEN EXPLAINED FULLY TO GRANTOR AND GRANTOR HAS CONSULTED WITH
COUNSEL OF GRANTOR'S CHOICE PRIOR TO EXECUTING THIS DEED; AND (D) ACKNOWLEDGES
THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF GRANTOR HAVE BEEN MADE KNOWINGLY,
INTENTIONALLY AND WILLINGLY BY GRANTOR AS PART OF A BARGAINED FOR LOAN
TRANSACTION:
INITIALED BY GRANTOR:
ERO INDUSTRIES, INC.
By: /s/ ANDREW S. ROSEN
--------------------------
ANDREW S. ROSEN
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This Deed has been duly executed by Grantor on the date first above written.
ERO INDUSTRIES, INC.
By: /s/ ANDREW S. ROSEN
------------------------------------
[CORPORATE SEAL]
Signed, sealed and delivered
this 11th day of June, 1997,
in the presence of:
/s/ JAMIE L. RIEF
- ------------------------------
Unofficial Witness
/s/ ILLEGIBLE
- ------------------------------
Notary Public
My commission expires: ILLEGIBLE
[NOTARY SEAL]
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Schedule A
16.5 acres of land more or less, lying and being in the City of Hazlehurst, Jeff
Davis County, Georgia, and being located on the northwesterly side and fronting
along South Williams Street and being bounded on the southeast by South
Williams Street; southwest by Wilson Street; northwest by South Miller Street
and northeast by King's Lane, being the lands conveyed to BAWI Corporation by
Mrs. Gertrude Weatherly and the deed of conveyance being recorded in Deed
Records Book 33 on Page 310, in the office of the Clerk of Superior Court of
Jeff Davis County, Georgia, also described as follows:
BEGINNING at a point where the north right-of-way of Williams Street intersects
with the east right-of-way of Wilson Street.
THENCE north 01 degrees 15 minutes 00 seconds west a distance of 654.56 feet to
a point of curve;
THENCE along a curve to the right having a radius of 613.75 feet, a central
angle of 023 degrees 17 minutes 19 seconds, an arch length of 249.47 feet and a
chord which bears north 10 degrees 23 minutes 40 seconds east to its point of
tangency;
THENCE south 85 degrees 08 minutes 21 seconds east a distance of 759.32 feet to
a point for corner;
THENCE south 00 degrees 54 minutes 04 seconds east a distance of 857.88 feet to
a point for corner;
THENCE north 88 degrees 16 minutes 52 seconds west a distance of 800.87 feet to
the POINT OF BEGINNING, and containing 702,337.61 square feet or 16.1235 acres
of land.