EXHIBIT 10.43
SOURCE OF TITLE: Deed Book 1997, Page 10454
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PREPARED BY:
XXXXXXX X. XXXXX
P.O. BOX 951
MILLEDGEVILLE, GA 31061
REAL ESTATE MORTGAGE
(LEASEHOLD)
____________________________________________________
STATE OF ALABAMA
COUNTY OF TUSCALOOSA
THIS INDENTURE, made and entered into this _______ day of March, 2001, between
XXXXXXX ALABAMA, INC., 0 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000, hereinafter called "Borrower", whether singular or plural, and EMPIRE
FINANCIAL SERVICES, INC., 000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxxx, Xxxxxxx 00000,
hereinafter called "Lender":
I.
WITNESSETH; That for and in consideration of the sum of ONE MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS evidenced by one certain promissory note of
even date herewith payable to the order of Lender, receipt of said consideration
being hereby acknowledged, and in order to secure the indebtedness and other
obligations of Borrower hereinafter set forth, the Borrower does hereby bargain,
sell, xxxxx, and convey unto the Lender, its successors and assigns all of
Xxxxxxxx's right, title, interest, and possessory estate in an to the property
described on "Exhibit A" hereto acquired pursuant to that certain lease and
pursuant to any amendments or renewals thereof, which lease is also identified
on "Exhibit A" (hereinafter "the Leasehold Interest" and "the Lease") together
with any after-acquired right, title, and interest in the fee or other superior
estate.
There is also hereby conveyed: All buildings, structures and improvements of
every kind and nature whatsoever now or hereafter situated on the above
described lands (or that may hereafter be erected thereon); all rights and
powers, easements, hereditaments and appurtenances in any way belonging,
relating, or appertaining thereto; all right, title and interest of Borrower in
all fixtures now or hereafter attached to said lands as well as any additions,
improvements, replacements, substitutions, or proceeds from the sale of same;
all income, rents, issues, profits and revenues of the Property from time to
time accruing (including without limitation all payments under leases or
tenancies, proceeds of insurance, condemnation payments, tenant security
deposits whether held by Borrower or in a trust account, and escrow funds), and
all the estate, right, title, interest, property, possession, claim and demand
whatsoever at law, as well as in equity, of Borrower, in and to the same;
reserving only the right to Borrower to collect the same so long as Borrower is
not in default hereunder; all such property of every kind and description
hereinabove granted and conveyed to be hereafter collectively identified as "the
Property".
Xxxxxxxx also assigns and conveys to Lender any right, privilege or option to
extend or renew the Lease as well as Borrower's right of first refusal or option
to purchase the fee, if any.
TO HAVE AND TO HOLD the Property unto the said Xxxxxx, its successors and
assigns, forever. Upon condition, however, that if the Borrower shall well and
truly pay and discharge the indebtedness hereby secured as it shall become due
and payable and shall in all things do and perform all acts and agreements by
Borrower herein agreed to be done according to the tenor and effect hereof, then
and in that event only, this conveyance shall be and become null and void.
II.
Borrower covenants: that Borrower is lawfully seized and possessed of the
Lease and the Leasehold Interest; that Borrower has good right to convey same;
that the same is free from all encumbrances except such permitted matters as are
listed on Exhibit "B" hereto; and Borrower warrants and will defend the title
thereto, and every part thereof, against the claims of all persons whomsoever.
Should it ever appear that good and marketable leasehold title to any part of
the Property, free of all liens and unpermitted encumbrances, did not become
vested in Lender by virtue of this Instrument, then all debts secured hereby
shall become due and collectible at once, without notice, at Xxxxxx's option.
III.
THIS INSTRUMENT is intended to operate and is to be construed as a mortgage
passing title to the Lease, the Leasehold Interest and any after - acquired
interest in the Property to Lender and is made under those provisions of the
existing laws of the State of Alabama relating to leasehold mortgages and is
given to secure the payment of the following described indebtedness (hereinafter
referred to collectively as the "Indebtedness"):
(a) The debt evidenced by that certain promissory note (hereinafter
referred to as the "Note") dated March ______, 2001, made by Borrower to the
order of Lender in the principal face amount of One Million Five Hundred
Thousand and No/100 Dollars ($1,500,000.00), with the final payment being due on
or before March 1, 2007; together with any and all renewals, modifications,
consolidations, replacements and extensions of the indebtedness evidenced by the
Note;
(b) All interest on the principal amount of all such debt (including
interest that, but for the filing of a petition in bankruptcy, would accrue on
any such principal);
(c) Any and all additional advances made by Xxxxxx to protect or preserve
the Property, the Leasehold Interest, the Lease, or the security interest
created hereby in the Property, the Leasehold Interest and the Lease, or for
taxes, assessments or insurance premiums as hereinafter provided or for
performance of any of Borrower's obligations hereunder or for any other purpose
provided herein (whether or not the original Borrower is a lessee or owner of
the Property at the time of such advances);
(d) Any and all other indebtedness now owing or which may hereafter be
owing by Borrower to Lender, now existing or hereafter coming into existence,
however and whenever incurred or evidenced, whether expressed or implied, direct
or indirect, absolute or contingent, or due or to become due,
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and all renewals, modifications, consolidations replacements and extensions
thereof; and
(e) Any and all costs, expenses, and attorneys' fees which Xxxxxx, its
successors or assigns, may incur in the collection of all or any portion of said
indebtedness.
IV.
To further secure said indebtedness, Borrower covenants to procure, and to
maintain in full force and effect, for the benefit of Lender, its successors and
assigns, the following types of insurance, in companies acceptable to Lender:
(a) "All-risk" hazard insurance in an amount not less than 100% of the full
replacement cost of the Property improvements, without deduction for
depreciation; provided, however, that hazard insurance with respect to
improvements under construction shall be in the form of "all-risk" builder's
risk insurance satisfactory to Lender; (b) rent insurance against loss of income
arising from hazards against which the Property is otherwise required to be
insured, in an amount not less than 100% of one year's gross rental income from
the Property; (c) such other insurance on the Property or any replacements or
substitutions therefor, in such amounts as may from time to time be required by
Lender against other insurable casualties which at the time are commonly insured
against in the case of properties of similar character and location, due regard
being given to the height and type of the improvements, their construction,
location, use and occupancy, or any replacements or substitutions therefor; (d)
and public liability insurance covering all liabilities incident to the
construction, ownership, possession and operation of the Property and naming
Lender as an additional insured thereunder.
Lender is hereby authorized and empowered, at its option, to adjust or
compromise any loss under any insurance policies maintained pursuant hereto, and
to collect and receive the proceeds from any such policy or policies. Each
insurance company is hereby authorized and directed to make payment for all such
losses directly to Lender, instead of to Borrower and Lender jointly. In the
event any insurance company fails to disburse directly and solely to Xxxxxx but
disburses instead either solely to Borrower or to Borrower and Xxxxxx jointly,
Xxxxxxxx agrees immediately to endorse and transfer such proceeds to Lender.
Upon the failure of Borrower to endorse and transfer such proceeds as aforesaid,
Xxxxxx may execute such endorsements or transfers for and in the name of
Xxxxxxxx and Borrower hereby irrevocably appoints Xxxxxx as Xxxxxxxx's agent and
attorney-in-fact so to do. In the event of a loss of more than 50% of the pre-
loss value of the Property improvements, Lender, after deducting from said
insurance proceeds all of its expenses incurred in the collection and
administration of such sums, including attorneys' fees, may apply the net
proceeds or any part thereof, at its option, (a) to the payment of the
Indebtedness, whether or not due and in whatever order Lender elects, (b) to the
repair or restoration of the Property, or (c) for any other purposes or objects
for which Lender is entitled to advance funds under this Instrument, all without
affecting the security interest created by this Instrument; and any balance of
such moneys then remaining shall be paid to Borrower or the person or entity
lawfully entitled thereto. In the event of a loss of less than 50% of the pre-
loss value of the Property improvements, and provided no event of default then
exists, Borrower shall be entitled to have said proceeds applied to the repair
or restoration of said improvements, upon consent of Lender, which consent shall
not be unreasonably withheld. Lender shall not be held responsible for any
failure to collect any insurance proceeds due under the terms of any policy
regardless of the cause of such failure.
At least thirty (30) days prior to the expiration date of each policy
maintained pursuant hereto, a renewal or replacement thereof satisfactory to
Lender shall be delivered to Lender. Borrower shall deliver to Lender receipts
evidencing the payment for all such insurance policies and renewals or
replacements.
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The delivery of any insurance policies hereunder shall constitute an assignment
of all unearned premiums as further security for the Indebtedness. In the event
of the foreclosure of this Instrument or any other transfer of title to the
Lease, the Leasehold Interest, or the Property in extinguishment or partial
extinguishment of the Indebtedness, all right, title and interest of Borrower in
and to all insurance policies then in force shall pass to the purchaser or to
Lender, as the case may be, and Lender is hereby irrevocably appointed by
Xxxxxxxx as attorney-in-fact for Borrower to assign any such policy to said
purchaser or to Lender, as the case may be, without accounting to Borrower for
any unearned premiums thereon.
All insurance policies maintained pursuant hereto shall provide that the
insurer give the Lender at least thirty (30) days prior written notice of
cancellation or termination, and provide that no act or thing done by the
insured shall invalidate or diminish the insurance provided to Lender and,
except for liability policies, contain mortgagee loss payable clauses
satisfactory to Lender.
V.
Borrower shall pay, on or before the due date thereof; (a) all taxes,
assessments, license or permit fees, and all other charges of every character
whatsoever which may be a lien upon the Property, the Leasehold Interest, or the
Lease, or any part thereof, and shall promptly submit to Lender such evidence of
the payment thereof as Lender may require; (b) all premiums on policies of
insurance covering, affecting, or relating to the Property, the Leasehold
Interest and the Lease; (c) all premiums for mortgage insurance, if this
Instrument and the Note are so insured, and (d) 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 Property, and shall promptly submit to
Lender such evidence of the payment of same as Lender may require.
VI.
At the option of Lender and to further secure the payment of the taxes,
premiums and assessments hereinabove mentioned, Borrower shall deposit with
Lender, on the due date of each installment under the Note, such amounts as, in
the estimation of Lender, shall be necessary to pay such charges as they become
due; said deposits to be held by Lender free of interest, and free of any liens
or claims on the part of creditors of Borrower, as part of Lender's security.
If said deposits are not sufficient to pay such charges in full as they become
payable, Borrower will promptly deposit with Lender such additional sums as may
be required to enable Lender to make full payment of same.
VII.
If all or any portion of the Property improvements or if all or a significant
portion of the real estate shall be damaged or taken through condemnation,
including transfer by private sale in lieu thereof, then the entire indebtedness
shall, at the option of Lender, become immediately due and payable. Lender is
hereby authorized, at its option, to commence, appear in, or prosecute, through
counsel selected by it, in its own or Borrower's name, any action or proceeding
relating to any such condemnation and to settle or compromise any claim in
connection therewith. All compensation, awards, damages, claims, rights of
action and proceeds arising from any such condemnation are hereby assigned by
Xxxxxxxx to Lender. Lender is authorized to apply any sums collected to the
payment of expenses of obtaining same, including its attorney fees, and may, at
its option, apply the remaining proceeds, or any portion thereof, to payment of
Borrower's
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then outstanding indebtedness, provided, however, that if no event of default
then exists, and the damages involve less than 25% of the "pre-damage" value of
the Property, Borrower shall be entitled to have said proceeds, or such portion
thereof as may be required, applied to the repair and restoration of the
Property, upon consent of Lender, which consent shall not be unreasonably
withheld.
VIII.
Borrower will keep the buildings, parking areas, roads and walkways,
recreational facilities, landscaping and all other improvements of any kind now
or hereafter erected on the Property or any part thereof in good condition and
repair, will not commit or suffer any waste and will not do or suffer to be done
anything which would or could increase the risk of fire or other hazard to the
Property or any part thereof or which would or could result in the cancellation
of any insurance policy carried with respect to the Property.
Borrower will not remove, demolish or alter the structural character of any
improvements located on the Property without the written consent of Lender.
Borrower shall not remove or permit to be removed from the Property any item or
items which are or may hereafter be in any way attached or affixed to the
Property or to any improvements thereon, provided, however, that Borrower may
replace, with items of comparable or greater value and utility such items as
require replacement due to normal wear and tear and routine obsolescence.
Lender, its agents or representatives, are hereby authorized to enter upon and
inspect the Property at any time during normal business hours.
Borrower will promptly comply with all present and future laws, ordinances,
rules and regulations of any governmental authority affecting the Property or
any part thereof, including those laws, ordinances, rules, and regulations
relating to the environment as set forth in the Environmental Warranty which is
attached as an exhibit hereto and incorporated by reference herein.
IX.
If all or any part of the Property shall be damaged by fire or other casualty,
Borrower will give immediate written notice thereof to Lender and will promptly
restore the Property to the equivalent of its original condition. If a part of
the Property shall be damaged through condemnation, Xxxxxxxx will promptly
restore, repair or alter the remaining portions of the Property in a manner
satisfactory to Lender. Notwithstanding the foregoing, Borrower shall not be
obligated so to restore, repair or alter unless in each instance, Xxxxxx agrees
to make available to Borrower (pursuant to a procedure satisfactory to Lender)
any net insurance or condemnation proceeds actually received by Lender hereunder
in connection with such casualty loss or condemnation, to the extent such
proceeds are required to defray the expense of such restoration, repair or
alteration; provided, however that the insufficiency of any such insurance or
condemnation proceeds to defray the entire expense of restoration, repair or
alteration shall in no way relieve Borrower of its obligation to restore, repair
or alter. In the event all or any portion of the Property shall be damaged or
destroyed by fire or other casualty or by condemnation, Borrower shall promptly
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deposit with Lender a sum equal to the amount by which the estimated cost of the
restoration of the Property (as determined by Xxxxxx in its good faith judgment)
exceeds the actual net insurance or condemnation proceeds with respect to such
damage or destruction.
X.
Borrower will not suffer or permit any mechanics', materialmen's, laborer's,
statutory or other lien to be filed of record or to remain outstanding against
the Property, unless expressly subordinated to this security instrument, and, in
no event will any such lien be allowed where the presence of same could result
in a default in the Lease.
Upon request by Xxxxxx, Xxxxxxxx will execute, or cause to be executed, and
delivered to Lender such other mortgages, assignments, security agreements or
other documents as may, in the opinion of Xxxxxx, be necessary to perfect,
continue or preserve the obligation of Borrower under the Note, this mortgage or
any other security instrument executed in connection herewith, and, upon failure
of Borrower so to do, Xxxxxx, as agent and attorney-in-fact of Borrower may
execute, file, and record such documents.
Borrower will pay or reimburse Lender, upon demand, for all attorneys' fees,
costs and expenses incurred by Xxxxxx in any suit, action, legal proceeding or
dispute of any kind in which Xxxxxx is made a party or appears as party
Plaintiff or Defendant, affecting the Indebtedness, this Instrument or the
interest created hereby, the Lease, Leasehold Interest or the Property,
(including, but not limited to, the exercise of the power of sale contained in
this Instrument), any condemnation action involving the Lease, Leasehold
Interest or the Property, any federal bankruptcy proceeding or state insolvency
proceeding or other proceeding involving the priorities or rights of creditors,
or any action to protect the security hereof, and any such amounts paid by
Lender shall be added to the Indebtedness and shall be secured by this
Instrument.
XI.
Borrower shall keep and maintain or shall cause to be kept and maintained, at
Borrower's cost and expense and in accordance with generally accepted accounting
principles, proper and accurate books, records and accounts reflecting all items
of income and expense in connection with the operation of the Property and in
connection with any services, equipment or furnishings provided in connection
with the operation of the Property. Lender, its agents, accountants, and
attorneys shall have the right from time to time to examine such books, records
and accounts at the office of the Borrower or wherever maintained, to make such
copies or extracts thereof as Lender shall desire and to discuss Borrower's
affairs, finances and accounts with Borrower and with the officers and
principals of Borrower, at such reasonable times as may be requested by Xxxxxx.
Upon request, Borrower will furnish to Lender, within ninety (90) days after the
end of Xxxxxxxx's fiscal year, an audited financial statement for the Property
for such fiscal year prepared by an independent certified public accountant
satisfactory to Lender containing a profit and loss statement and all supporting
schedules covering the operation of the Property, all in reasonable detail,
prepared in accordance with generally accepted accounting standards.
XII.
Borrower shall not be permitted to alter or change the use of the Property or
to abandon the Property, or to modify, terminate, or surrender the Lease without
prior written consent of Lender.
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Borrower hereby acknowledges to Lender that: (a) the identity and expertise
of Xxxxxxxx were and continue to be material circumstances upon which Xxxxxx has
relied in connection with, and which constitute valuable consideration to Lender
for, the extending to Borrower of the funds evidenced by the Note and (b) any
change in such identity or expertise could materially impair or jeopardize the
security for the payment of the Note granted to Lender and secured by this
Instrument. Borrower hereby covenants and agrees with Lender, as part of the
consideration for the extending to Borrower of the funds evidenced by the Note,
that Borrower shall not encumber, pledge, convey, transfer, assign or grant any
option with regard to any or all of its interest in the Property without the
prior written consent of Lender, and, if Borrower is a corporation, partnership
or other artificial entity, there shall be no encumbrance, pledge, conveyance,
transfer or assignment of any legal or beneficial interest including those
incident to liquidation, dissolution, merger, consolidation, or share exchange.
Such consent of Lender may be given or withheld by Lender at its sole
discretion.
XIII.
In the event (a) of a default in the payment of principal and interest
(including, without limitation, non-payment upon maturity) or default in any
other monetary obligation of the Borrower which such default(s) continue for a
period of five (5) days after notice of such default by Lender, or (b) upon
failure of the Borrower to comply with any other conditions or covenants
contained in the Note, this, or any other security instrument(s) which such
default(s) continue for a period of fifteen (15) days after notice of such
default by Lender, or (c) upon the liquidation or dissolution of a Borrower,
endorser or guarantor that is a corporation, partnership, or limited liability
company, or death of an individual Borrower, endorser or guarantor, or (d) upon
termination of the Lease or Borrower's Leasehold Interest or occurrence of any
default by Borrower under terms of the Lease, then, and in any such event(s)
(hereinafter identified as "Event" or "Events of Default"), the principal
indebtedness evidenced by the Note, all accrued interest thereon and any other
sums advanced pursuant to the Note or pursuant to any other loan documents
shall, at the option of Lender and, without further notice to the Borrower, at
once become due and payable and may be collected forthwith, regardless of the
stipulated date of maturity. No omission on the part of Lender to exercise such
option, when entitled to do so, shall be construed a waiver of such right.
XIV.
If an Event of Default occurs, Borrower, upon demand of Lender, shall
forthwith surrender to Lender the actual possession of the Property and, to the
extent permitted by law, Xxxxxx may enter and take possession of all of the
Property without the appointment of a receiver, or an application therefor, and
may exclude Borrower and its agents and employees wholly therefrom, and may have
joint access with Borrower to the books, papers and accounts of Borrower.
Upon every such entering and taking of possession, Lender may hold, store,
use, operate, manage and control the Property and conduct the business thereof,
and, from time to time: (a) make all necessary and proper repairs,
replacements, additions, and improvements thereto and thereon and purchase or
otherwise acquire additional fixtures, personalty and other property; (b) insure
or keep the Property insured; (c) manage and operate the Property and exercise
all the rights and powers of Borrower to the same extent as Borrower could act
with respect to the same; and (d) enter into any and all agreements with respect
to the exercise by others of any of the powers herein granted to Xxxxxx, all as
Lender from time to time may determine to be in its best interest. Lender may
collect and receive all the income, rents, issues, profits and revenues from the
Property, including those past due as well as those accruing thereafter, and
Lender may apply any moneys and proceeds received by Xxxxxx, in whatever order
or priority Lender in its sole
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discretion may determine, to the payment of (i) all expenses of taking, holding,
managing and operating the Property (including compensation for the services of
all persons employed for such purposes); (ii) the cost of maintenance, repairs,
renewals, replacements, additions, improvements, purchases and acquisitions;
(iii) the cost of insurance; (iv) such taxes, assessments and other similar
charges as Lender may at its option choose to pay; (v) other proper charges upon
the Property or any part thereof; (vi) the reasonable compensation, expenses and
disbursements of the attorneys and agents of Lender; (vii) accrued interest;
(viii) deposits and other sums required to be paid under this Instrument; or
(ix) overdue installments of principal. Anything herein to the contrary
notwithstanding, Lender shall not be obligated to discharge or perform the
duties of a landlord to any tenant or incur any liability as the result of any
exercise by Lender of its rights under this Instrument, and Lender shall be
liable to account only for the rents, incomes, issues, profits and revenues
actually received by Lender.
If an Event or Events of Default shall occur with regard to the payment,
performance or observance of any term, covenant or condition of this Instrument
or any other document or instrument evidencing, securing or otherwise relating
to the Indebtedness, Lender may, at its option, pay, perform or observe the
same, and all payments made or costs or expenses incurred by Lender in
connection therewith shall be secured hereby and shall be, without demand,
immediately repaid by Borrower to Lender with interest thereon at the default
rate provided in the Note. Lender shall be the sole judge of the necessity for
any such actions and of the amounts to be paid. Xxxxxx is hereby empowered to
enter and to authorize others to enter upon the Property or any part thereof for
the purpose of performing or observing any such defaulted term, covenant or
condition without thereby becoming liable to Borrower or any person in
possession holding under Borrower.
If an Event or Events of Default shall have occurred, Lender, at Xxxxxx's
option, upon application to a court of competent jurisdiction, shall be entitled
as a matter of strict right, without notice and without regard to the adequacy
or value of any security for the 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 Property and to collect and apply the incomes, rents, issues,
profits and revenues thereof. The receiver shall have all the rights and powers
permitted under the laws of the State of Alabama. Borrower will pay to Lender
upon demand all expenses, including receiver's fees, attorneys' fees, costs and
agent's compensation, incurred pursuant to the provisions of this Paragraph, and
any such amounts paid by Xxxxxx shall be added to the Indebtedness and shall be
secured by this Instrument.
If an Event or Events of Default shall have occurred, then the whole of the
unpaid Indebtedness hereby secured, with interest thereon, shall at once become
due and payable and Lender, at its option, and without further notice to
Borrower beyond that required by the Note or this Mortgage, (all such further or
additional notice being hereby expressly waived), may sell the Lease, the
Leasehold Interest, or the Property or any part of the Property at one or more
public sales before the main entrance door of the courthouse of the county in
which the land or any part of the land is situated, at public outcry, to the
highest bidder for cash, in order to pay the Indebtedness, and all expenses of
sale and of all proceedings in connection therewith, including reasonable
attorneys' fees, after advertising the description of the Property to be sold
and the time, place and terms of sale by publishing the same once a week for
three (3) consecutive weeks preceding such sale in a newspaper published in the
county in which the land or a part thereof is situated. At any such public
sale, Xxxxxx may execute and deliver to the purchaser a good and sufficient deed
of conveyance of the Lease, the Leasehold Interest, or the Property or any part
of the Property, and to this end Borrower hereby constitutes and appoints Lender
the agent and attorney-in-fact of Borrower to make such sale and conveyance, 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 upon Borrower. The aforesaid power
of sale and agency hereby granted are coupled with an
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interest and are irrevocable by death or otherwise, are granted as cumulative of
the other remedies provided hereby or by law for collection of the Indebtedness
and shall not be exhausted by one exercise thereof but may be exercised until
full payment of all of the Indebtedness. In the event of any sale under this
Instrument by virtue of the exercise of the powers herein granted, or pursuant
to any order in any judicial proceeding or otherwise, the Lease, Leasehold
Interest and the Property may be sold as an entirety or in separate parcels and
in such manner or order as Lender in its sole discretion may elect, and one or
more exercises of the powers herein granted shall not extinguish nor exhaust
such powers, until the entire Property and Property rights are sold or the
Indebtedness is paid in full. If the Indebtedness is now or hereafter further
secured by any chattel mortgages, pledges, contracts of guaranty, assignments of
lease or other security instruments, Lender may, at its option, exhaust the
remedies granted under any of said security instruments either concurrently or
independently, and in such order as Lender may determine.
If an Event or Events of Default shall have occurred, Lender may, in addition
to and not in abrogation of the rights covered under the preceding paragraph,
either with or without entry or taking possession as herein provided or
otherwise, proceed by a suit or suits in law or in equity or by any other
appropriate proceeding or remedy (a) to enforce payment of the Note or the
performance of any term, covenant, condition or agreement of this Instrument or
any other right, and (b) to pursue any other remedy available to it, all as
Lender at its sole discretion shall elect.
Upon any foreclosure sale or sales of all or any portion of the Property or
Property rights under the power herein granted, Lender may bid for and purchase
the Lease, the Leasehold Interest and the Property and shall be entitled to
apply all or any part of the Indebtedness as a credit to the purchase price.
In the event of a foreclosure or a sale of all or any portion of the Lease,
the Leasehold Interest and the Property under the power herein granted, the
proceeds of said sale shall be applied as follows: First, to the expenses of
such sale and of all proceedings in connection therewith, including
attorneys'fees; Second, to payment of insurance premiums, liens, assessments,
taxes and charges including utility charges advanced by Lender; Third, to
payment of the outstanding principal balance of the Indebtedness, and, where
permitted by law, the accrued interest on all of the foregoing; and, Fourth, the
remainder, if any, shall be paid to Borrower, or to the person or entity
lawfully entitled thereto.
In the event of any such foreclosure sale or sales under the power herein
granted, Borrower shall be deemed a tenant holding over and shall forthwith
deliver possession to the purchaser or purchasers at such sale or be summarily
dispossessed according to provisions of law applicable to tenants holding over.
Lender, at its option, is authorized to foreclose this Instrument subject to
the rights of any tenants of the Property, and the failure to make any such
tenants parties to any such foreclosure proceedings and to foreclose their
rights will not be, nor be asserted to be by Borrower, a defense to any
proceedings instituted by Xxxxxx to collect the Indebtedness.
XV.
No right, power or remedy conferred upon or reserved to Lender by this
Instrument is intended to be exclusive of any other right, power or remedy, but
each and every such right, power and remedy shall be cumulative and concurrent
and shall be in addition to any other right, power and remedy given hereunder or
now or hereafter existing at law, in equity or by statute.
No delay or omission by Lender or by any holder of the Note to exercise any
right, power or remedy accruing upon any breach or Event or Events of Default
shall exhaust or impair any such right,
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power or remedy or shall be construed to be a waiver of any such breach or
default, or acquiescence therein, and every right, power and remedy given by
this Instrument to Lender may be exercised from time to time and as often as may
be deemed expedient by Xxxxxx. No consent or waiver, expressed or implied, by
Xxxxxx to or of any breach or Event or Events of Default by Borrower in the
performance of the obligations of Borrower hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance of the same or any other obligations of Borrower hereunder. Failure
on the part of Lender to complain of any act or failure to act or to declare a
default, irrespective of how long such failure continues, shall not constitute a
waiver by Xxxxxx of its rights hereunder or impair any rights, powers or
remedies of Lender hereunder.
No act or omission by Lender shall release, discharge, modify, change or
otherwise affect the original liability under the Note, this Instrument or any
other obligation of Borrower or any subsequent purchaser of the Lease, the
Leasehold Interest, the Property or any part thereof, or any maker, co-signer,
endorser, surety or guarantor, or preclude Lender from exercising any right,
power or privilege herein granted or intended to be granted upon the happening
of any Event or Events of Default, or alter the security title, security
interest or lien of this Instrument except as expressly provided in an
instrument or instruments executed by Xxxxxx. Without limiting the generality
of the foregoing, Lender may: (a) grant forbearance or an extension of time for
the payment of all or any portion of the Indebtedness; (b) take other or
additional security for the payment of the Indebtedness; (c) waive or fail to
exercise any right granted hereunder or in the Note; (d) release any part of the
Property or Leasehold Interest from the security interest or lien of this
Instrument or otherwise change any of the terms, covenants, conditions or
agreements of the Note or this Instrument; (e) consent to the filing of any map,
plat or replat affecting the Property; (f) consent to the granting of any
easement or other right affecting the Property; (g) make or consent to any
agreement subordinating the security title, security interest or lien hereof; or
(h) take or omit to take any action whatsoever with respect to the Note, this
Instrument, the Lease, the Leasehold Interest, the Property or any document or
instrument evidencing, securing or in any way relating to the Indebtedness; all
without releasing, discharging, modifying, changing or affecting any such
liability, or precluding Lender from exercising any such right, power or
privilege or affecting the security title, security interest or lien of this
Instrument. In the event of the sale or transfer by operation of law or
otherwise of all or any part of the Lease, the Leasehold Interest or the
Property, Lender, without notice, is hereby authorized and empowered to deal
with any such vendee or transferee with reference to the Lease, the Leasehold
Interest, or the Property or the Indebtedness, or with reference to any of the
terms, covenants, conditions or agreements hereof, as fully and to the same
extent as it might deal with the original parties hereto and without in any way
releasing or discharging any liabilities, obligations or undertakings.
XVI.
This Instrument shall inure to the benefit of and be binding upon Xxxxxxxx and
Xxxxxx and their respective heirs, executors, legal representatives, successors,
successors-in-title and assigns. Whenever a reference is made in this
Instrument to "Borrower" or "Lender" such reference shall be deemed to include a
reference to the heirs, executors, legal representatives, successors,
successors-in-title and assigns of Xxxxxxxx and Xxxxxx, as the case may be.
However, the provisions of this Paragraph are subject to the restrictions on
transfer contained herein.
10
XVII.
If any provisions of this Instrument or the application thereof to any person
or circumstance shall be invalid or unenforceable to any extent, the remainder
of this Instrument and the application of such provisions to other persons or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
XVIII.
This Instrument shall be interpreted, construed and enforced according to the
laws of the State of Alabama.
XIX.
Any and all notices, elections, demands, requests and responses thereto
permitted or required to be given under this Instrument shall be in writing,
signed by or on behalf of the party giving the same, and shall be deemed to have
been properly given and shall be effective upon being personally delivered, or
upon being deposited in the United States mail, postage prepaid, certified with
return receipt requested, to the other party at the address of such other party
set forth below or at such other address as such other party may designate by
notice specifically designated as a notice of change of address. Personal
delivery to a party or to any officer, or partner, or to any agent or employee
specifically designated to receive notice at said address shall constitute
receipt. Rejection or other refusal to accept or inability to deliver because
of changed address of which no notice has been received shall also constitute
receipt. Any such notice, election, demand, request or response, if given to
Lender, shall be addressed as follows:
EMPIRE FINANCIAL SERVICES, INC.
000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxxx, Xxxxxxx 00000
and, if given to Xxxxxxxx, shall be addressed as follows:
XXXXXXX ALABAMA, INC.
0 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000
XXXXXXX, XXXXXXX 00000-1603
XX.
In the event that Borrower is the owner of a leasehold estate with respect to
any portion of the Property and, prior to the satisfaction of the Indebtedness
and the cancellation of this Instrument of record, Borrower obtains a fee estate
in such portion of the Property, then, such fee estate shall automatically, and
without further action of any kind on the part of Borrower, be and become
subject to the security title and lien of this Instrument, however, in no event
shall there be a merger of the leasehold and fee estates without the Lender's
express consent.
11
XXI.
This Instrument is assignable by Xxxxxx, and any assignment hereof by Xxxxxx
shall operate to vest in the assignee all rights and powers herein conferred
upon and granted to Lender.
XXII.
Time is of the essence with respect to each and every covenant, agreement and
obligation of Borrower under this Instrument, the Note and any and all other
instruments now or hereafter evidencing, securing or otherwise relating to the
Indebtedness.
BY EXECUTION OF THIS INSTRUMENT BORROWER EXPRESSLY; (A) ACKNOWLEDGES THE RIGHT
OF LENDER TO ACCELERATE THE INDEBTEDNESS EVIDENCED BY THE NOTE AND ANY OTHER
INDEBTEDNESS AND THE POWER OF ATTORNEY GIVEN HEREIN TO LENDER TO SELL THE LEASE,
THE LEASEHOLD INTEREST OR THE PROPERTY BY NONJUDICIAL FORECLOSURE UPON DEFAULT
BY BORROWER WITHOUT ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE OTHER THAN SUCH
NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE PROVISIONS OF
THIS INSTRUMENT; (B) WAIVES ANY AND ALL RIGHTS WHICH BORROWER MAY HAVE UNDER THE
CONSTITUTION OF THE UNITED STATES OF AMERICA (INCLUDING, WITHOUT LIMITATION, THE
FIFTH AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE
CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW,
(1) TO NOTICE AND TO JUDICIAL HEARING PRIOR TO THE EXERCISE BY LENDER OF ANY
RIGHT OR REMEDY HEREIN PROVIDED TO LENDER, EXCEPT SUCH NOTICE (IF ANY) AS IS
SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE PROVISIONS OF THIS INSTRUMENT AND
(2) CONCERNING THE APPLICATION, RIGHTS OR BENEFITS OF ANY STATUTE OF LIMITATION
OR ANY MORATORIUM, REINSTATEMENT, MARSHALLING, FORBEARANCE, APPRAISEMENT,
VALUATION, STAY, EXTENSION, HOMESTEAD, EXEMPTION OR REDEMPTION LAWS; (C)
ACKNOWLEDGES THAT BORROWER HAS READ THIS INSTRUMENT AND ANY AND ALL QUESTIONS OF
BORROWER REGARDING THE LEGAL EFFECT OF THIS INSTRUMENT AND ITS PROVISIONS HAVE
BEEN EXPLAINED FULLY TO BORROWER, AND XXXXXXXX HAS CONSULTED WITH COUNSEL OF
BORROWER'S CHOICE PRIOR TO EXECUTING THIS INSTRUMENT; AND (D) ACKNOWLEDGES THAT
ALL WAIVERS OF THE AFORESAID RIGHTS OF BORROWER HAVE BEEN MADE KNOWINGLY,
INTENTIONALLY AND WILLINGLY BY BORROWER AS PART OF A BARGAINED FOR LOAN
TRANSACTION AND THAT THIS INSTRUMENT IS VALID AND ENFORCEABLE BY XXXXXX AGAINST
BORROWER IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS HEREOF.
12
IN WITNESS WHEREOF, Xxxxxxxx has executed this Instrument under seal, as of
the day and year first above written.
BORROWER:
XXXXXXX ALABAMA, INC. (SEAL)
An Alabama Corporation
BY: __________________________
XXXXX X. XXXXXXX
President
ATTEST: _______________________
XXXXXX X. XXXXXX
Secretary
STATE OF GEORGIA
DEKALB COUNTY
I, XXXXXXX X. XXXXX, a Notary Public in and for said County, in said State,
hereby certify that XXXXX X. XXXXXXX and XXXXXX X. XXXXXX whose names are signed
to the foregoing conveyance, respectively, as President and Secretary, and who
are known to me, acknowledged before me on this day that, being informed of the
contents of the conveyance, they, as such officers and, with full authority,
executed the same voluntarily for and as the act of said corporation on the day
the same bears date. Given under my hand this _______ day of
__________________, 2001.
____________________________
NOTARY PUBLIC
13
SOURCE OF TITLE: Deed Book 1997, Page 10454
----------------
Prepared By:
Xxxxxxx X. Xxxxx
P.O. Box 951
Milledgeville, GA 31061
Return to Above
ASSIGNMENT OF LEASE
________________________________________
THIS ASSIGNMENT, made and entered into this ______ day of March, 2001 by and
between XXXXXXX ALABAMA, INC., an Alabama Corporation, 0 Xxxxxxxxx Xxxxxx Xxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Borrower"), and
EMPIRE FINANCIAL SERVICES, INC., a Georgia Corporation, 000 Xxxxxxxxx Xxxxxxx,
Xxxxxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Lender");
W I T N E S S E T H:
THAT FOR AND IN CONSIDERATION of the sum of Ten and No/100ths Dollars ($10.00)
and other good and valuable consideration, as evidenced by a promissory note of
even date payable to the order of Lender, receipt of said consideration being
hereby acknowledged, and in order to secure the indebtedness and other
obligations of the Borrower, Xxxxxxxx does hereby grant, transfer and assign to
Lender, its successors, successors-in-title and assigns, all of Xxxxxxxx's
right, title and interest in, to and under that certain lease more particularly
described in Exhibit "A" attached hereto and by this reference made a part
-----------
hereof, including any and all extensions, renewals and modifications thereof
(hereinafter referred to as the "Lease") which Lease covers certain property
located in Tuscaloosa, Tuscaloosa County, Alabama more particularly described in
Exhibit "A" attached hereto and by this reference made a part hereof
-----------
(hereinafter referred to as the "Premises").
Borrower also grants, transfers, and assigns to Lender any right, privilege or
option to extend or renew the Lease as well as Xxxxxxxx's right of first refusal
or option to purchase the fee.
TO HAVE AND TO HOLD unto Lender, its successors and assigns forever, subject
to and upon the terms and conditions set forth herein.
ARTICLE I
---------
WARRANTIES AND COVENANTS
------------------------
1.01
Warranties of Borrower. Borrower hereby warrants and represents as follows:
----------------------
(a) Borrower is the sole holder of the lessee's interest under the Lease,
(hereinafter referred to as the "Leasehold Interests"), and has the right to
sell, assign, transfer and set over the same and to grant to and confer upon
Lender the rights, interests, powers, and authorities herein granted and
conferred;
14
(b) There is no assignment having priority over this Assignment of any of the
rights of Borrower under the Lease;
(c) Xxxxxxxx has neither done any act nor omitted to do any act which might
prevent Lender from, or limit Lender in, acting under any of the provisions of
this Assignment;
(d) Rental will be paid in accordance with the terms of the Lease and there
shall be no deferrals of rent without Xxxxxx's permission;
(e) So far as is known to Borrower, there exists no default or event of
default or any state of facts which would, with or without the passage of time
or the giving of notice, or both, constitute a default or event of default on
the part of Borrower or Lessor under the terms of the Lease, or under the terms
of superior leases and/or subleases, if any;
(f) Neither the execution and delivery of this Assignment nor the performance
of each and every covenant of Borrower under this Assignment, nor the meeting of
each and every condition contained in this Assignment, conflicts with, or
constitutes a breach or default under any agreement, indenture or other
instrument to which Borrower is a party, or any law, ordinance, administrative
regulation or court decree which is applicable to Borrower;
(g) No action has been brought or, so far as is known to Borrower, is
threatened, which would interfere in any way with the right of Borrower to
execute this Assignment and perform all of Borrower's obligations contained in
this Assignment and in the Lease; and
(h) The Lease is valid, enforceable and in full force and effect, and has not
been modified or amended, except as may be expressly set forth in Exhibit "A".
-----------
1.02
Covenants of Borrower. Borrower hereby covenants and agrees as follows:
---------------------
(a) Borrower shall (i) fulfill, perform and observe each and every condition
and covenant of Lessee contained in the Lease; (ii) give prompt notice to Lender
of any claim of default under the Lease, whether given by the Lessor to
Borrower, or given by Borrower to the Lessor, together with a complete copy of
any such notice; (iii) at no cost or expense to Lender, enforce, short of
termination, the performance and observance of each and every covenant and
condition of the Lease to be performed or observed by the Lessor thereunder; and
(iv) appear in and defend any action arising out of, or in any manner connected
with the Lease, or the obligations or liabilities of Borrower thereunder, or of
the Lessor;
(b) Borrower shall not, without the prior written consent of Lender, (i)
modify the Lease; (ii) terminate or surrender the Lease; (iii) waive or release
the Lessor from the performance or observance by the Lessor of any obligation or
condition of the Lease; (iv) defer the payment of any rents under the Lease; (v)
give any assignment or sublease; or (vi) assign its interest in, to or under the
Lease to any person or entity other than Lender;
(c) Borrower shall take no action which will cause or permit the leasehold
estate to merge with the fee without the Lender's consent;
15
(d) Borrower shall protect, indemnify and save harmless Lender from and
against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, attorneys' fees and
expenses) imposed upon or incurred by Lender by reason of this Agreement and any
claim or demand whatsoever which may be asserted against Lender by reason of any
alleged obligation or undertaking to be performed or discharged by Xxxxxx under
this Assignment. In the event Lender incurs any liability, loss, or damage by
reason of this Assignment, or in the defense of any claim or demand arising out
of or in connection with this Assignment, the amount of such liability, loss, or
damage shall be added to the Indebtedness, shall bear interest at the interest
rate specified in the Note from the date incurred until paid and shall be
payable on demand;
(e) Borrower shall insure that the Lessor will recognize as its Lessee any
person or entity succeeding to the interest of the Borrower upon any
foreclosure, or other acquisition by the Lender of the Leasehold Interests.
1.03
Covenants of Lender. Lender covenants and agrees with Xxxxxxxx as follows:
-------------------
(a) So long as there shall exist no Event of Default, as defined in Paragraph
2.01, below, on the part of Borrower. Borrower shall be entitled to possession
of the Premises and the use and enjoyment thereof;
(b) For purposes of this Assignment, "The Indebtedness" is identified as a
loan of even date herewith, as well as any renewals, modifications,
consolidations, or extensions thereof;
(c) Upon the payment in full of the Indebtedness, as evidenced by the
recording or filing of an instrument of satisfaction or full release of the
Security Instruments without the recording of another security instrument in
favor of Lender affecting the Premises, this Assignment shall be terminated and
released of record by Xxxxxx and shall thereupon be of no further force or
effect.
ARTICLE II
----------
DEFAULT
-------
2.01
Event of Default. The term, "Event of Default", wherever used in this
----------------
Assignment, shall mean any one or more of the following events:
(a) The occurrence of any "default" or "event of default" under any of the
Security Instruments. For purposes of this Assignment, the Security Instruments
shall include a Promissory Note, Leasehold Mortgage, Security Agreement, and any
and all other documents of even date herewith evidencing or securing Borrower's
indebtedness to Lender in the original principal amount of $1,500,000.00 as well
as any renewals, modifications, consolidations, and extensions thereof;
(b) The failure by Borrower to comply, in all respects, with any covenant,
condition or agreement of this Assignment; or
16
(c) The breach of any warranty by Xxxxxxxx contained in this Assignment.
2.02
Remedies. Upon the occurrence of any Event of Default, Lender may, at its
--------
option, after giving such notice or demand as may be required by this Assignment
or other Security Instruments, exercise any or all of the following remedies:
(a) Declare any part or all of the Indebtedness to be due and payable,
whereupon the same shall become immediately due and payable;
(b) Perform any and all obligations of Borrower under the Lease or this
Assignment and exercise any and all rights of Borrower herein or therein as
fully as Borrower could do, including without limiting the generality of the
foregoing: enforcing, modifying, extending or terminating the Lease; entering
into a new lease on the Premises on any terms and conditions deemed desirable by
Lender, and, to the extent Lender shall incur any costs in connection with the
performance of any such obligations of Borrower, including costs of litigation,
then all such costs shall become a part of the Indebtedness, shall bear interest
from the incurring thereof at the interest rate specified in the Note, and shall
be due and payable on demand;
(c) In Borrower's or Xxxxxx's name, institute any legal or equitable action
which Lender in its sole discretion deems desirable to preserve The Lease.
Lender shall have full right to exercise any or all of the foregoing remedies
without regard to the adequacy of security for any or all of the Indebtedness,
and with or without the commencement of any legal or equitable action or the
appointment of any receiver or trustee, and shall have full right to enter upon,
take possession of, use and operate all or any portion of the Premises which
Lender in its sole discretion deems desirable to effectuate any or all of the
foregoing remedies.
ARTICLE III
-----------
GENERAL PROVISIONS
------------------
3.01
Successors and Assigns. This Assignment shall inure to the benefit of and be
----------------------
binding upon Borrower and Lender and their respective legal representatives,
successors and assigns. Whenever a reference is made in this Assignment to
"Borrower" or "Lender", such reference shall be deemed to include a reference to
the legal representatives, successors and assigns of Borrower or Lender.
3.02
Severability. If any provision of this Assignment or the application thereof
------------
to any person or circumstance shall be invalid or unenforceable to any extent,
the remainder of this Assignment and
17
the application of such provisions to other persons or circumstances shall not
be affected thereby and shall be enforced to the greatest extent permitted by
law.
3.03
Applicable Law. This Assignment shall be interpreted, construed and enforced
--------------
according to the laws of the State of Alabama.
3.04
No Third Party Beneficiaries. This Assignment is made solely for the benefit
----------------------------
of Lender and its assigns. No other person or entity shall have standing to
bring any action against Lender as the result of this Assignment, or to assume
that Xxxxxx will exercise any remedies provided herein, and no person other than
Lender shall under any circumstances be deemed to be a beneficiary of any
provision of this Assignment.
3.05
Cumulative Remedies. The remedies herein provided shall be in addition to and
-------------------
not in substitution for the rights and remedies vested in Lender in any of the
Security Instruments or in law or equity, all of which rights and remedies are
specifically reserved by Lender. The remedies herein provided or otherwise
available to Lender shall be cumulative and may be exercised concurrently. The
failure to exercise any of the remedies herein provided shall not constitute a
waiver thereof, nor shall use of any of the remedies herein provided prevent the
subsequent or concurrent resort to any other remedy or remedies. It is intended
that this clause be broadly construed so that all remedies herein provided or
otherwise available to Lender shall continue and be each and all available to
Lender until the Indebtedness shall have been paid in full.
3.06
Cross-Default. An Event of Default by Borrower under this Assignment shall
-------------
constitute an Event of Default under all other Security Instruments.
3.07
The provisions of this Assignment shall extend and be applicable to all
renewals, amendments, extensions, consolidations and modifications of the
Security Instruments and the Lease, and any and all references herein to the
Security Instruments or the Lease shall be deemed to include any such renewals,
amendments, extensions, consolidations or modifications thereof.
18
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this Assignment under
seal, as of the date first above written.
BORROWER:
XXXXXXX ALABAMA, INC. [SEAL]
An Alabama Corporation
By: ___________________________________
XXXXX X. XXXXXXX
President
Attest: ___________________________________
XXXXXX X. XXXXXX
Secretary
STATE OF GEORGIA
DEKALB COUNTY
I, XXXXXXX X. XXXXX, a Notary Public in and for said County, in said State,
hereby certify that XXXXX X. XXXXXXX and XXXXXX X. XXXXXX whose names are signed
to the foregoing conveyance, respectively, as President and Secretary, and who
are known to me, acknowledged before me on this day that, being informed of the
contents of the conveyance, they, as such officers and, with full authority,
executed the same voluntarily for and as the act of said corporation on the day
the same bears date. Given under my hand this _______ day of ________________,
2001.
____________________________
NOTARY PUBLIC
Signatures continued on following page
19
Signatures continued from previous page
LENDER:
EMPIRE FINANCIAL SERVICES, INC. (SEAL)
A Georgia Corporation
By: __________________________________
Its President
Attest: ______________________________
Its Secretary
STATE OF XXXXXXX
XXXXXXX COUNTY
I, XXXXXXX X. XXXXX, a Notary Public in and for said County, in said State,
hereby certify that X. XXXXX XXXX, XX. and XXXXXXX X. XXXXXXX whose names are
signed to the foregoing conveyance, respectively, as President and Secretary,
and who are known to me, acknowledged before me on this day that, being informed
of the contents of the conveyance, they, as such officers and, with full
authority, executed the same voluntarily for and as the act of said corporation
on the day the same bears date. Given under my hand this _____ day of
____________, 2001.
____________________________
NOTARY PUBLIC
20
SOURCE OF TITLE: Deed Book 1997, Page 10454
----------------
Prepared By:
Xxxxxxx X. Xxxxx
P.O. Box 951
Milledgeville, GA 31061
Return to Above
ASSIGNMENT OF LEASE
________________________________________
THIS ASSIGNMENT, made and entered into this ______ day of March, 2001 by and
between XXXXXXX ALABAMA, INC., an Alabama Corporation, 0 Xxxxxxxxx Xxxxxx Xxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Borrower"), and
EMPIRE FINANCIAL SERVICES, INC., a Georgia Corporation, 000 Xxxxxxxxx Xxxxxxx,
Xxxxxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Lender");
W I T N E S S E T H:
THAT FOR AND IN CONSIDERATION of the sum of Ten and No/100ths Dollars ($10.00)
and other good and valuable consideration, as evidenced by a promissory note of
even date payable to the order of Lender, receipt of said consideration being
hereby acknowledged, and in order to secure the indebtedness and other
obligations of the Borrower, Xxxxxxxx does hereby grant, transfer and assign to
Lender, its successors, successors-in-title and assigns, all of Xxxxxxxx's
right, title and interest in, to and under that certain lease more particularly
described in Exhibit "A" attached hereto and by this reference made a part
-----------
hereof, including any and all extensions, renewals and modifications thereof
(hereinafter referred to as the "Lease") which Lease covers certain property
located in Tuscaloosa, Tuscaloosa County, Alabama more particularly described in
Exhibit "A" attached hereto and by this reference made a part hereof
-----------
(hereinafter referred to as the "Premises").
Borrower also grants, transfers, and assigns to Lender any right, privilege or
option to extend or renew the Lease as well as Xxxxxxxx's right of first refusal
or option to purchase the fee.
TO HAVE AND TO HOLD unto Lender, its successors and assigns forever, subject
to and upon the terms and conditions set forth herein.
ARTICLE I
---------
WARRANTIES AND COVENANTS
------------------------
1.01
Warranties of Borrower. Borrower hereby warrants and represents as follows:
----------------------
(a) Borrower is the sole holder of the lessee's interest under the Lease,
(hereinafter referred to as the "Leasehold Interests"), and has the right to
sell, assign, transfer and set over the same and to grant to and confer upon
Lender the rights, interests, powers, and authorities herein granted and
conferred;
21
(b) There is no assignment having priority over this Assignment of any of the
rights of Borrower under the Lease;
(c) Xxxxxxxx has neither done any act nor omitted to do any act which might
prevent Lender from, or limit Lender in, acting under any of the provisions of
this Assignment;
(d) Rental will be paid in accordance with the terms of the Lease and there
shall be no deferrals of rent without Xxxxxx's permission;
(e) So far as is known to Borrower, there exists no default or event of
default or any state of facts which would, with or without the passage of time
or the giving of notice, or both, constitute a default or event of default on
the part of Borrower or Lessor under the terms of the Lease, or under the terms
of superior leases and/or subleases, if any;
(f) Neither the execution and delivery of this Assignment nor the performance
of each and every covenant of Borrower under this Assignment, nor the meeting of
each and every condition contained in this Assignment, conflicts with, or
constitutes a breach or default under any agreement, indenture or other
instrument to which Borrower is a party, or any law, ordinance, administrative
regulation or court decree which is applicable to Borrower;
(g) No action has been brought or, so far as is known to Borrower, is
threatened, which would interfere in any way with the right of Borrower to
execute this Assignment and perform all of Borrower's obligations contained in
this Assignment and in the Lease; and
(h) The Lease is valid, enforceable and in full force and effect, and has not
been modified or amended, except as may be expressly set forth in Exhibit "A".
-----------
1.02
Covenants of Borrower. Borrower hereby covenants and agrees as follows:
---------------------
(a) Borrower shall (i) fulfill, perform and observe each and every condition
and covenant of Lessee contained in the Lease; (ii) give prompt notice to Lender
of any claim of default under the Lease, whether given by the Lessor to
Borrower, or given by Borrower to the Lessor, together with a complete copy of
any such notice; (iii) at no cost or expense to Lender, enforce, short of
termination, the performance and observance of each and every covenant and
condition of the Lease to be performed or observed by the Lessor thereunder; and
(iv) appear in and defend any action arising out of, or in any manner connected
with the Lease, or the obligations or liabilities of Borrower thereunder, or of
the Lessor;
(b) Borrower shall not, without the prior written consent of Lender, (i)
modify the Lease; (ii) terminate or surrender the Lease; (iii) waive or release
the Lessor from the performance or observance by the Lessor of any obligation or
condition of the Lease; (iv) defer the payment of any rents under the Lease; (v)
give any assignment or sublease; or (vi) assign its interest in, to or under the
Lease to any person or entity other than Lender;
(c) Borrower shall take no action which will cause or permit the leasehold
estate to merge with the fee without the Lender's consent;
22
(d) Borrower shall protect, indemnify and save harmless Lender from and
against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, attorneys' fees and
expenses) imposed upon or incurred by Lender by reason of this Agreement and any
claim or demand whatsoever which may be asserted against Lender by reason of any
alleged obligation or undertaking to be performed or discharged by Xxxxxx under
this Assignment. In the event Lender incurs any liability, loss, or damage by
reason of this Assignment, or in the defense of any claim or demand arising out
of or in connection with this Assignment, the amount of such liability, loss, or
damage shall be added to the Indebtedness, shall bear interest at the interest
rate specified in the Note from the date incurred until paid and shall be
payable on demand;
(e) Borrower shall insure that the Lessor will recognize as its Lessee any
person or entity succeeding to the interest of the Borrower upon any
foreclosure, or other acquisition by the Lender of the Leasehold Interests.
1.03
Covenants of Lender. Lender covenants and agrees with Xxxxxxxx as follows:
-------------------
(a) So long as there shall exist no Event of Default, as defined in Paragraph
2.01, below, on the part of Borrower. Borrower shall be entitled to possession
of the Premises and the use and enjoyment thereof;
(b) For purposes of this Assignment, "The Indebtedness" is identified as a
loan of even date herewith, as well as any renewals, modifications,
consolidations, or extensions thereof;
(c) Upon the payment in full of the Indebtedness, as evidenced by the
recording or filing of an instrument of satisfaction or full release of the
Security Instruments without the recording of another security instrument in
favor of Lender affecting the Premises, this Assignment shall be terminated and
released of record by Xxxxxx and shall thereupon be of no further force or
effect.
ARTICLE II
----------
DEFAULT
-------
2.01
Event of Default. The term, "Event of Default", wherever used in this
----------------
Assignment, shall mean any one or more of the following events:
(a) The occurrence of any "default" or "event of default" under any of the
Security Instruments. For purposes of this Assignment, the Security Instruments
shall include a Promissory Note, Leasehold Mortgage, Security Agreement, and any
and all other documents of even date herewith evidencing or securing Borrower's
indebtedness to Lender in the original principal amount of $1,500,000.00 as well
as any renewals, modifications, consolidations, and extensions thereof;
(b) The failure by Borrower to comply, in all respects, with any covenant,
condition or agreement of this Assignment; or
23
(c) The breach of any warranty by Xxxxxxxx contained in this Assignment.
2.02
Remedies. Upon the occurrence of any Event of Default, Lender may, at its
--------
option, after giving such notice or demand as may be required by this Assignment
or other Security Instruments, exercise any or all of the following remedies:
(a) Declare any part or all of the Indebtedness to be due and payable,
whereupon the same shall become immediately due and payable;
(b) Perform any and all obligations of Borrower under the Lease or this
Assignment and exercise any and all rights of Borrower herein or therein as
fully as Borrower could do, including without limiting the generality of the
foregoing: enforcing, modifying, extending or terminating the Lease; entering
into a new lease on the Premises on any terms and conditions deemed desirable by
Lender, and, to the extent Lender shall incur any costs in connection with the
performance of any such obligations of Borrower, including costs of litigation,
then all such costs shall become a part of the Indebtedness, shall bear interest
from the incurring thereof at the interest rate specified in the Note, and shall
be due and payable on demand;
(c) In Borrower's or Xxxxxx's name, institute any legal or equitable action
which Lender in its sole discretion deems desirable to preserve The Lease.
Lender shall have full right to exercise any or all of the foregoing remedies
without regard to the adequacy of security for any or all of the Indebtedness,
and with or without the commencement of any legal or equitable action or the
appointment of any receiver or trustee, and shall have full right to enter upon,
take possession of, use and operate all or any portion of the Premises which
Lender in its sole discretion deems desirable to effectuate any or all of the
foregoing remedies.
ARTICLE III
-----------
GENERAL PROVISIONS
------------------
3.01
Successors and Assigns. This Assignment shall inure to the benefit of and be
----------------------
binding upon Borrower and Lender and their respective legal representatives,
successors and assigns. Whenever a reference is made in this Assignment to
"Borrower" or "Lender", such reference shall be deemed to include a reference to
the legal representatives, successors and assigns of Borrower or Lender.
3.02
Severability. If any provision of this Assignment or the application thereof
------------
to any person or circumstance shall be invalid or unenforceable to any extent,
the remainder of this Assignment and
24
the application of such provisions to other persons or circumstances shall not
be affected thereby and shall be enforced to the greatest extent permitted by
law.
3.03
Applicable Law. This Assignment shall be interpreted, construed and enforced
--------------
according to the laws of the State of Alabama.
3.04
No Third Party Beneficiaries. This Assignment is made solely for the benefit
----------------------------
of Lender and its assigns. No other person or entity shall have standing to
bring any action against Lender as the result of this Assignment, or to assume
that Xxxxxx will exercise any remedies provided herein, and no person other than
Lender shall under any circumstances be deemed to be a beneficiary of any
provision of this Assignment.
3.05
Cumulative Remedies. The remedies herein provided shall be in addition to and
-------------------
not in substitution for the rights and remedies vested in Lender in any of the
Security Instruments or in law or equity, all of which rights and remedies are
specifically reserved by Lender. The remedies herein provided or otherwise
available to Lender shall be cumulative and may be exercised concurrently. The
failure to exercise any of the remedies herein provided shall not constitute a
waiver thereof, nor shall use of any of the remedies herein provided prevent the
subsequent or concurrent resort to any other remedy or remedies. It is intended
that this clause be broadly construed so that all remedies herein provided or
otherwise available to Lender shall continue and be each and all available to
Lender until the Indebtedness shall have been paid in full.
3.06
Cross-Default. An Event of Default by Borrower under this Assignment shall
-------------
constitute an Event of Default under all other Security Instruments.
3.07
The provisions of this Assignment shall extend and be applicable to all
renewals, amendments, extensions, consolidations and modifications of the
Security Instruments and the Lease, and any and all references herein to the
Security Instruments or the Lease shall be deemed to include any such renewals,
amendments, extensions, consolidations or modifications thereof.
25
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this Assignment under
seal, as of the date first above written.
BORROWER:
XXXXXXX ALABAMA, INC. [SEAL]
An Alabama Corporation
By: ___________________________________
XXXXX X. XXXXXXX
President
Attest: ___________________________________
XXXXXX X. XXXXXX
Secretary
STATE OF GEORGIA
DEKALB COUNTY
I, XXXXXXX X. XXXXX, a Notary Public in and for said County, in said State,
hereby certify that XXXXX X. XXXXXXX and XXXXXX X. XXXXXX whose names are signed
to the foregoing conveyance, respectively, as President and Secretary, and who
are known to me, acknowledged before me on this day that, being informed of the
contents of the conveyance, they, as such officers and, with full authority,
executed the same voluntarily for and as the act of said corporation on the day
the same bears date. Given under my hand this _______ day of ________________,
2001.
____________________________
NOTARY PUBLIC
Signatures continued on following page
26
Signatures continued from previous page
LENDER:
EMPIRE FINANCIAL SERVICES, INC. (SEAL)
A Georgia Corporation
By: __________________________________
Its President
Attest: ______________________________
Its Secretary
STATE OF XXXXXXX
XXXXXXX COUNTY
I, XXXXXXX X. XXXXX, a Notary Public in and for said County, in said State,
hereby certify that X. XXXXX XXXX, XX. and XXXXXXX X. XXXXXXX whose names are
signed to the foregoing conveyance, respectively, as President and Secretary,
and who are known to me, acknowledged before me on this day that, being informed
of the contents of the conveyance, they, as such officers and, with full
authority, executed the same voluntarily for and as the act of said corporation
on the day the same bears date. Given under my hand this _____ day of
____________, 2001.
____________________________
NOTARY PUBLIC
27
SOURCE OF TITLE: Deed Book 1997, Page 10454
----------------
Prepared By:
Xxxxxxx X. Xxxxx
P.O. Box 951
Milledgeville, GA 31061
Return to Above
ASSIGNMENT OF FEES AND INCOME
-----------------------------
THIS ASSIGNMENT, made and entered into this _______ day of March, 2001, by and
between XXXXXXX ALABAMA, INC., an Alabama Corporation, C/x Xxxxxxx Inns, Inc., 0
Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred
to as "Borrower"), and EMPIRE FINANCIAL SERVICES, INC., a Georgia Corporation,
000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as
"Lender");
W I T N E S S E T H:
THAT FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency whereof
are hereby acknowledged, Xxxxxxxx does hereby grant, transfer and assign to
Lender, its successors, successors-in-title and assigns, all of Borrower's
right, title and interest in and to all of those certain fees and items of
income more particularly described in Exhibit B attached hereto and by this
---------
reference made a part hereof (said fees and income being hereinafter referred to
collectively as the "Income", and which is generated by, or results from the
operation of an assisted living facility and related facilities and amenities on
certain property (the "Premises") more particularly described in Exhibit A
---------
attached hereto and by this reference made a part hereof).
TO HAVE AND TO HOLD unto Lender, its successors and assigns forever, subject
to and upon the terms and conditions set forth herein.
ARTICLE I
WARRANTIES AND COVENANTS
1.01 Warranties of Borrower. Borrower hereby warrants and represents as
----------------------
follows:
(a) Borrower is and will continue to be the sole recipient of the Income from
the Premises, and has good right to sell, assign, transfer and set over the same
and to grant to
28
and confer upon Xxxxxx the rights, interests, powers, and authorities herein
granted and conferred;
(b) There is no assignment having priority over this Assignment of any of the
rights of Borrower in and to the Income or any part thereof;
(c) Xxxxxxxx has neither done any act nor omitted to do any act which might
prevent Lender from, or limit Lender in, acting under any of the provisions of
this Assignment;
(d) Neither the execution and delivery of this Assignment, nor the performance
of each and every covenant of Borrower under this Assignment, nor the meeting of
each and every condition contained in this Assignment, conflicts with, or
constitutes a breach or default under any agreement, indenture or other
instrument to which Borrower is a party, or any law, ordinance, administrative
regulation or court decree which is applicable to Borrower; and
(e) No action has been brought or, so far as is known to Borrower, is
threatened, which would interfere in any way with the right of Borrower to
execute this Assignment and perform all of Borrower's obligations contained in
this Assignment.
1.02 Covenants of Borrower. Borrower hereby covenants and agrees as follows:
---------------------
(a) Borrower shall, in keeping with the general plan of development proposed
for the Premises, aggressively market and promote its fee-generating services;
(b) Borrower shall, consistent with good business practices applicable to
similar operations, charge and collect the Income promptly as same becomes due;
(c) Borrower shall, at no cost or expense to Xxxxxx, enforce the performance
and observance of each and every obligation required of persons utilizing the
Premises;
(d) Borrower shall protect, indemnify and save harmless Lender from and
against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, attorneys' fees and
expenses) imposed upon or incurred by Lender by reason of this Agreement and any
claim or demand whatsoever which may be asserted against Lender by reason of any
alleged obligation or undertaking to be performed or discharged by Xxxxxx under
this Assignment. In the event Lender incurs any liability, loss or damage by
reason of this Assignment, or in the defense of any claim or demand arising out
of or in connection with this Assignment, the amount of such liability, loss or
damage shall be added to the Indebtedness, shall bear interest at the interest
rate specified in the Note from the date incurred until paid and shall be
payable on demand;
29
(e) Borrower hereby authorizes and directs each and every individual or entity
responsible for payment of any of said fees and charges to pay same directly to
Lender upon written demand from Lender to so pay the same and further covenants
that Xxxxxxxx's officers, agents, and representatives will, without the
necessity for further authorization, cooperate fully in collecting and remitting
the Income to Lender promptly upon receipt of written demand from Lender to so
pay the same; and
(f) Borrower acknowledges that this instrument represents a present assignment
of fees and income, effective as of the date hereof. In the event Borrower ever
seeks any form of debt relief under provisions of State or Federal law,
including, but not limited to, the United States Bankruptcy Code, Borrower
agrees that Borrower will not consider any such fees and income as an asset of
Borrower nor claim any of said fees and income, nor authorize or support any
such claim by a receiver, trustee in bankruptcy or any other person or entity.
1.03 Covenants of Lender. Lender covenants and agrees with Borrower as
-------------------
follows:
(a) Although this Assignment constitutes a present, current, absolute,
unconditional, irrevocable assignment of the Income from the Premises, so long
as there shall exist no Event of Default, as defined in Paragraph 2.01, below,
on the part of Borrower, Lender shall not demand that the Income be paid
directly to Lender, and Borrower shall have the right to collect same;
(b) For purposes of this Assignment, the Indebtedness is identified as a loan
of even date herewith, as well as any renewals, modifications, consolidations or
extensions thereof; and
(c) Upon the payment in full of the Indebtedness, as evidenced by the
recording or filing of an instrument of satisfaction or full release of the
Security Documents this Assignment shall be terminated and shall thereupon be of
no further force or effect.
ARTICLE II
DEFAULT
2.01 Event of Default. The term, "Event of Default", wherever used in this
----------------
Assignment, shall mean any one or more of the following events:
(a) The occurrence of any "default" or "event of default" under any of the
Loan Documents. For purposes of this Assignment, the Loan Documents shall
include a Promissory Note, Mortgage, Security Agreement, and any and all other
documents of even date evidencing Borrower's indebtedness to Lender in the
original principal amount of ONE MILLION FIVE HUNDRED THOUSAND AND NO/100
DOLLARS as well as any renewals, modifications, consolidations and extensions
thereof;
(b) The failure by Borrower to comply with any covenant, condition or
agreement of this Assignment; or
30
(c) The breach of any warranty by Xxxxxxxx contained in this Assignment.
2.02 Remedies. Upon the occurrence of any Event of Default, Lender may, at its
--------
option, after giving such notice or demand as may be required by this Assignment
or other Loan Documents, exercise any or all of the following remedies:
(a) Declare any part or all of the Indebtedness to be due and payable,
whereupon the same shall become immediately due and payable;
(b) In Borrower's or Xxxxxx's name, institute any legal or equitable action
which Lender in its sole discretion deems desirable to collect and receive any
or all of the Income assigned herein;
(c) Collect the Income and apply the same in such order as Lender in its sole
discretion may elect against (i) all costs and expenses, including reasonable
attorneys' fees, incurred in connection with the operation of the Premises; (ii)
all the costs and expenses, including reasonable attorneys' fees, incurred in
the collection of any or all of the Indebtedness, including all costs, expenses
and attorneys' fees incurred in seeking to realize on or to protect or preserve
Lender's interest in any collateral securing any or all of the Indebtedness; and
(iii) any or all unpaid principal and interest on the Indebtedness.
Lender shall have full right to exercise any or all of the foregoing remedies
without regard to the adequacy of any security for any or all of the
Indebtedness, and with or without the commencement of any legal or equitable
action or the appointment of any receiver or trustee, and shall have full right
to enter upon, take possession of, use and operate all or any portion of the
Premises which Lender in its sole discretion deems desirable to effectuate any
or all of the foregoing remedies.
Xxxxxx's right to the Income assigned hereby shall not be dependent upon any
further action, including the necessity of taking possession of the Income.
ARTICLE III
GENERAL PROVISIONS
3.01 Successors and Assigns. This Assignment shall inure to the benefit of and
----------------------
be binding upon Borrower and Lender and their respective legal representatives,
successors and assigns. Whenever a reference is made in this Assignment to
"Borrower" or "Lender", such reference shall be deemed to include a reference to
the legal representatives, successors and assigns of Borrower or Lender.
3.02 Severability. If any provision of this Assignment or the application
------------
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Assignment and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
31
3.03 Applicable Law. This Assignment shall be interpreted, construed and
--------------
enforced according to the laws of the State of Alabama.
3.04 No Third Party Beneficiaries. This Assignment is made solely for the
----------------------------
benefit of Lender and its assigns. No other person shall have standing to bring
any action against Lender as the result of this Assignment, or to assume that
Lender will exercise any remedies provided herein, and no person other than
Lender shall under any circumstances be deemed to be a beneficiary of any
provision of this Assignment.
3.05 Cumulative Remedies. The remedies herein provided shall be in addition to
-------------------
and not in substitution for the rights and remedies vested in Lender in any of
the Loan Documents or in law or equity, all of which rights and remedies are
specifically reserved by Xxxxxx. The remedies herein provided or otherwise
available to Lender shall be cumulative and may be exercised concurrently. The
failure to exercise any of the remedies herein provided shall not constitute a
waiver thereof, nor shall use of any of the remedies herein provided prevent the
subsequent or concurrent resort to any other remedy or remedies. It is intended
that this clause be broadly construed so that all remedies herein provided or
otherwise available to Lender shall continue and be each and all available to
Lender until the Indebtedness shall have been paid in full.
3.06 Cross-Default. An Event of Default by Borrower under this Assignment
-------------
shall constitute an Event of Default under all other Loan Documents.
3.07 The provisions of this Assignment shall extend and be applicable to all
renewals, amendments, extensions, consolidations and modifications of the Loan
Documents, and any and all references herein to the Loan Documents shall be
deemed to include any such renewals, amendments, extensions, consolidations or
modifications thereof.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this Assignment under
seal, as of the date first above written.
BORROWER:
XXXXXXX ALABAMA, INC. [SEAL]
An Alabama Corporation
By: ___________________________________________
XXXXX X. XXXXXXX, President
Attest: __________________________________________
XXXXXX X. XXXXXX, Secretary
32
STATE OF GEORGIA
COUNTY OF DeKALB
I, ______________, a Notary Public in and for said County, in said State,
hereby certify that __________________ and __________________ whose names are
signed to the foregoing conveyance, respectively, as ______________ and
_________________, and who are known to me, acknowledged before me on this day
that, being informed of the contents of the conveyance, they, as such officers
and, with full authority, executed the same voluntarily for and as the act of
said ______________ on the day the same bears date. Given under my hand this
_____ day of ___________, 2001.
______________________________________
Notary Public
LENDER:
EMPIRE FINANCIAL SERVICES, INC. [SEAL]
A Georgia Corporation
By: _____________________________________________
President
Attest: _________________________________________
Secretary
STATE OF GEORGIA
COUNTY OF XXXXXXX
I, Xxxxxxx X. Xxxxx, a Notary Public in and for said County, in said State,
hereby certify that ________________________________ and
__________________________________ whose names are signed to the foregoing
conveyance, respectively, as ___________________ and _____________________, and
who are known to me, acknowledged before me on this day that, being informed of
the contents of the conveyance, they, as such officers and, with full authority,
executed the same voluntarily for and as the act of said corporation on the day
the same bears date. Given under my hand this _____ day of ______________,
2001.
______________________________________
Notary Public
33
SECURITY AGREEMENT
XXXXXXX ALABAMA, INC., hereinafter called "Borrower", (whether singular or
plural), for value received, hereby grants to EMPIRE FINANCIAL SERVICES, INC.,
hereinafter called "Secured Party", a security interest in all that Property
more fully described on Exhibit B which is attached hereto and by reference made
a part hereof and also any and all replacements of any such property (all of
which is hereinafter called "Collateral"), to secure the payment of that certain
indebtedness evidenced by a promissory note executed by Borrower in the amount
of ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS, of even date herewith,
and any and all extensions or renewals thereof, and any and all other
liabilities or obligations of the Borrower to the Secured Party, direct or
indirect, absolute or contingent, now existing or hereafter arising, now due or
hereafter to become due (all hereinafter called the "Obligations").
Borrower hereby warrants and agrees that:
1. The Collateral is used primarily for business use at a motel located in
Tuscaloosa County, Alabama on property more fully described on Exhibit A hereto.
---------
2. Except for the security interest granted hereby, Borrower is the owner of
the Collateral free from any superior lien, security interest, or encumbrance,
and Borrower will defend the Collateral against all claims and demands of all
persons at any time claiming the same or any interest therein.
3. No superior Financing Statement covering any Collateral or any proceeds
thereof is on file in any public office, and Borrower authorizes Secured Party
to file, in jurisdictions where this authorization will be given effect, a
Financing Statement signed only by the Secured party describing the collateral
in the same manner as it is described herein; and from time to time at the
request of Secured Party, Borrower will execute one or more Financing Statements
and such other documents (and pay the cost of filing or recording the same in
all public offices deemed necessary or desirable by the Secured Party) and do
such other acts and things, all as the Secured Party may request to establish
and maintain a valid security interest in the Collateral (free of or superior to
all other liens and claims whatsoever) to secure the payment of the Obligations.
4. Borrower will not sell, transfer, lease, or otherwise dispose of any of
the Collateral or any interest therein, or offer so to do, without the prior
written consent of Secured Party. However, Borrower shall be entitled to
replace, with items of like quality and quantity, any collateral that requires
replacement in the ordinary course of business due to normal wear and tear or
obsolescence.
34
5. Borrower will at all times keep the Collateral insured against loss,
damage, theft, and such other risks as Secured Party may require in such amounts
and with such conditions as shall be satisfactory to Secured Party. Each such
policy shall provide that proceeds payable thereunder shall be payable to
Secured Party as its interest may appear (and Secured Party may apply any
proceeds of such insurance which may be received by Secured Party toward payment
of the Obligations, whether or not due, in such order of application as Secured
Party may determine) Each such policy shall also provide for thirty (30) days'
written minimum cancellation notice to Secured Party. Upon request, the policy
or a true copy thereof shall be deposited with Secured Party. Secured Party may
act as attorney for Xxxxxxxx in obtaining, settling, and canceling such
insurance and endorsing any drafts. Xxxxxxxx agrees to assign to Secured Party
any proceeds it may receive from policies of insurance on the Collateral which
do not name Secured Party as a "loss payee", if Secured Party so directs, and to
the extent that Secured Party may have an interest therein.
6. Borrower shall at all times keep the Collateral free from any superior
lien, security interest, or encumbrances and in good order and repair and will
not waste or destroy the Collateral or any part thereof; and Borrower will not
use or allow others to use the Collateral in violation of any statute,
ordinance, or applicable Franchise Agreement; and Secured Party may examine and
inspect the Collateral at any time.
7. Borrower will pay promptly when due all taxes and assessments upon the
Collateral or for its use or operation or upon this Agreement or upon any note
or notes evidencing the obligations, or any of them.
8. At its option, Secured Party may discharge taxes, liens or security
interests or other encumbrances at any time levied or placed on the Collateral,
may pay for insurance on the Collateral, and may pay for the maintenance and
preservation of the Collateral. Xxxxxxxx agrees to reimburse Secured Party on
demand for any payment made, or any expense incurred, by Secured Party, pursuant
to the foregoing authorization. Until default, Borrower may have possession of
the Collateral and use it in any lawful manner not inconsistent with this
Agreement and not inconsistent with any policy of insurance thereon.
9. Borrower shall be in default under this Agreement upon the happening of
any of the following events or conditions: (a) failure or omission to pay when
due any Obligation (or any installment thereof or interest thereon), or default
in the payment or performance of any obligation contained herein, or in any
other document evidencing or securing Borrower's obligations to Secured Party;
(b) any warranty, representation, or statement made or furnished to Secured
Party by or on behalf of any Borrower proves to have been false in any material
respect when made or furnished; (c) loss, theft, substantial damage,
destruction, sale or encumbrances to or of any of the Collateral, or the making
of any levy, seizure, or attachment thereof or thereon; (d) any Obligor (which
term, as used herein, shall mean each Borrower and each other party primarily or
secondarily or contingently liable on any of the obligations) becomes insolvent
or unable to pay debts as they mature or makes an assignment for the benefit of
creditors, or any proceeding is instituted by or against any Obligor alleging
that such Obligor is insolvent or unable to pay debts as they mature; (e) entry
of any
35
judgment against any Obligor; (f) violation by Borrower of any term of any
existing Franchise Agreement or any amendment thereto; (g) dissolution,
disassociation, merger, consolidation, or transfer of a substantial part of the
property of any Obligor which is a corporation, partnership, or limited
liability company; (h) appointment of a receiver for the Collateral or any part
thereof or for any property in which any Borrower has an interest.
10. Upon the occurrence of (a) any default(s) involving a monetary obligation
of the Borrower, which such default(s) continue for a period of five (5) days
after notice of such default(s) by Secured Party; or (b) upon any non-monetary
default(s) or failure of the undersigned to comply with any other conditions or
covenants contained in this Security Agreement or any instrument(s) evidencing
or securing the indebtedness of Borrower which such default(s) continue for a
period of fifteen (15) days after notice of such default by Secured Party,
Secured Party may, at its option, declare all obligations secured hereby, or any
of them (notwithstanding any provisions thereof), immediately due and payable
without further demand or notice of any kind and the same thereupon shall
immediately become and be due and payable without further demand or notice (but
with such adjustments, if any, with respect to interest or other charges as may
be provided for in the promissory note or other writing evidencing such
liability), and Secured Party shall have and may exercise from time to time any
and all rights and remedies of a Secured Party under the Uniform Commercial Code
and any and all rights and remedies available to it under any other applicable
law; and upon request or demand of Secured party, Borrower shall, at its
expense, make the Collateral available to the Secured Party; and Borrower shall
promptly pay all costs of Secured party of collection of any and all of the
obligations, and enforcement of rights hereunder, including reasonable
attorney's fees and legal expenses and expenses of any repairs to any of the
Collateral and expenses of repairs to any realty or other property to which any
of the Collateral may be affixed or be a part. Unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, Secured Party will give Borrower reasonable notice
of the time and place of any public sale thereof or of the time after which any
private sale or any other intended disposition thereof is to be made. The
requirements of reasonable notice shall be met if such notice is mailed, postage
prepaid, to any Borrower at the address of Borrower shown on this Agreement or
at any other address shown on the records of Secured Party, at least (5) days
before the time of the sale or disposition. The Secured Party may bid and buy
at any public sale or other public disposition of the Collateral. Proceeds from
disposition of the Collateral will be applied in the order following to: (a)
the reasonable expenses of retaking, holding, preparing for sale or lease,
selling, leasing, and the like and, where not prohibited by law, to payment of
the reasonable attorneys' fees and legal expenses incurred by the Secured Party;
and (b) the satisfaction of the indebtedness secured by this Agreement. Upon
disposition of any Collateral after the occurrence of any default hereunder, or
if Secured Party feels insecure for any reason, Borrower shall be and remain
liable for any deficiency; and Secured Party shall account to Borrower for any
surplus, but Secured Party shall have the right to apply all or any part of such
surplus (or to hold the same as a reserve against) all or any obligations of
Borrower to Secured Party, whether or not they, or any of them, be then due, and
in such order of application as Secured Party may from time to time elect.
36
11. No waiver by Secured Party of any default shall operate as a waiver of
any other default or of the same default on a future occasion. No delay or
omission on the part of Secured Party in exercising any right or remedy shall
operate as a waiver thereof, and no single or partial exercise by Secured Party
of any right or remedy shall preclude any other or further exercise thereof or
the exercise of any other right or remedy. Time is of the essence of this
Agreement. The provisions of this Agreement are cumulative and in addition to
the provisions of any note secured hereby. If more than one party shall execute
this Agreement the term "Borrower" shall mean all parties signing this Agreement
and each of them, and all such parties shall be jointly and severally obligated
and liable hereunder. The singular pronoun when used herein, shall include the
plural. If this Agreement is not dated when executed by the Borrower, the
Secured Party is authorized, without notice to the Borrower, to date this
Agreement. This Agreement shall become effective as of the date of this
Agreement. All rights of Secured Party hereunder shall inure to the benefit of
its successors and assigns; and all obligations of Xxxxxxxx shall bind the
heirs, executors, administrators, successors and assigns of each Borrower.
12. This Agreement shall be construed in accordance with the laws of Alabama.
Wherever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and the Borrower's
seal affixed on the _____ day of March, 2001.
XXXXXXX ALABAMA, INC. [SEAL]
An Alabama Corporation
By: _____________________________________________
Xxxxx X. Xxxxxxx
President
Attest: _________________________________________
Xxxxxx X. Xxxxxx
Secretary
Borrower's Address: 0 Xxxxxxxxx Xxxxxx, Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000
Lender's Address: Empire Financial Services, Inc., 000 Xxxxxxxxx Xxxxxxx,
Xxxxxxxxxxxxx, Xxxxxxx 00000
37
ADJUSTABLE RATE NOTE
$1,500,000.00 March ______, 2001
FOR AND IN CONSIDERATION OF THE LOAN EVIDENCED BY THIS NOTE, the
undersigned promises to pay to the order of EMPIRE FINANCIAL SERVICES, INC., at
its main office in Milledgeville, Georgia, or at such place as the holder may
designate, the principal sum of ONE MILLION FIVE HUNDRED THOUSAND AND NO/100
DOLLARS ($1,500,000.00) plus interest from date on that part of the outstanding
principal which has not been paid.
Beginning on the date of this Note, the undersigned will pay interest at a
yearly rate of eight and seven-eighths percent (8.875%) (the "Initial Interest
Rate") based on a 365-day year. Interest shall accrue on all monies disbursed
from closing and all monies advanced from the Construction Loan Account from the
date of each such disbursement. The Construction Period shall run from March
______, 2001 through December 31, 2001. During that period, Borrower shall pay,
monthly, on or before the 15th day of each month, all interest accumulated
during the previous calendar month on monies disbursed, with the first payment
(due April 1, 2001) to be paid on or before April 15, 2001. All such interest
shall be fully paid on or before January 15, 2002. Between the first and fifth
day of each month, Noteholder will notify Borrower of the amount of interest due
on the 15th day of that month.
Beginning with the payment due on the first day of February, 2002, monthly
payments will be calculated on the basis of a twenty (20) year amortization of
the total principal balance outstanding at the end of the Construction Period at
the Initial Interest Rate, and shall be paid on the first day of February, 2002,
and on the first day of each month thereafter continuing through the payment due
on April 1, 2002.
Beginning on the first day of April, 2002, and on that day of the month every
twelve (12) months thereafter (the "Loan Adjustment Date"), the interest rate
applicable to the principal balance then outstanding will equal the "Prime Rate"
plus three-eighths of one
38
percent (.375%). Each annually adjusted interest rate will be in effect from
each Loan Adjustment Date (April 1st) through March 30th of the following year,
with monthly payments, at the adjusted rate, to be paid on the first day of each
month, beginning on the first day of May and continuing through the payment due
on the first day of April of the following year.
For purposes of this Note, the term "Prime Rate" shall mean the interest rate
published in the Wall Street Journal, Eastern Edition, identified therein as the
-------------------
"Prime Rate" and currently described as "the base rate on corporate loans posted
by at least 75% of the nation's 30 largest banks". The "Prime Rate" published
on the last publication date prior to each Loan Adjustment Date shall be the
index for interest rate adjustments. In the event that the Wall Street Journal
-------------------
abandons the practice of publishing the Prime Rate, the Noteholder will
designate a comparable reference or index which shall thereafter be the Prime
Rate for this Note. The Noteholder will round the amount of the change to the
nearest one-eighth (1/8) of one (1) percentage point. Noteholder will notify
Borrower of the adjustment to be made and such notification, even if given after
the due date of the next monthly installment, shall apply to all monthly
installments due after each Loan Adjustment Date. The monthly payments
calculated at each Loan Adjustment Date shall be in the amount that would
completely amortize the principal amount owed on each Loan Adjustment Date by
the first day of January, 2022, if such monthly payments were to continue until
that date. Monthly payments shall continue until all of said interest and
principal have been paid in full except that any balance remaining unpaid on the
first day of March, 2007, shall be due and payable, with all accrued interest
thereon, on that date.
Each payment shall be applied first to accrued interest and to other charges
or fees accruing under this Note or the Mortgage of even date herewith and the
residue to principal (except as heretofore specified for the Construction
Period). Any amount may be prepaid on this Note at any time without premium or
fee; however, the monthly payments shall continue to be due without
interruption. Time is of the essence of this contract. Lender may collect a
late charge of 5 cents for each One Dollar ($1.00) of each principal
39
and interest payment, with a minimum charge of Five Dollars ($5.00), for each
such payment fifteen (15) days or more in arrears to cover the extra expense
involved in handling delinquent payment. In the event (a) of a default in the
payment of principal and interest as stipulated herein (including, without
limitation, non-payment upon maturity) or default in any other monetary
obligation of the undersigned which such default(s) continue for a period of
five (5) days after notice of such default by Noteholder, or (b) upon failure of
the undersigned to comply with any other conditions or covenants contained in
this Note or any instrument(s) securing it which such default(s) continue for a
period of fifteen (15) days after notice of such default by Noteholder, or (c)
upon the liquidation or dissolution of a Borrower, endorser or guarantor that is
a corporation, partnership or limited liability company, then, and in any such
event(s), the principal indebtedness evidenced hereby, all accrued interest and
any other sums advanced hereunder or pursuant to any other loan documents shall,
at the option of Noteholder and, without further notice to the undersigned, at
once become due and payable and may be collected forthwith, regardless of the
stipulated date of maturity. No omission on the part of Noteholder to exercise
such option, when entitled to do so, shall be construed a waiver of such right.
Upon the happening of any event of default the entire unpaid principal balance
shall bear interest at the contract rate then in effect until the entire amounts
in default have been paid by the undersigned. If this Note is collected by law
or through an attorney at law, the undersigned shall pay all costs of
collection, including reasonable attorney's fees. The undersigned (whether
maker, endorser, surety, guarantor, or other party hereto) severally waives
demand, protest and notice of demand, protest and non-payment. It is agreed that
this Note may be renewed or extended from time to time, in whole or in part,
without the consent of or notice to any endorser, maker, guarantor, surety, or
other party hereto and without affecting or lessening the liability of any such
person. The powers granted herein are coupled with an interest, and are
irrevocable by death or otherwise. This Note is the joint and several obligation
of all makers, sureties, guarantors, endorsers and other parties hereto, and
shall be binding upon them, their heirs, personal representatives and assigns.
In this Note and any instrument securing it, the singular shall include the
plural, and the masculine shall include the feminine and neuter.
40
If from any circumstances whatsoever, fulfillment of any provision of this
Note or of any other instrument securing the indebtedness evidenced hereby, 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 Note or under any other instrument securing the indebtedness evidenced
hereby, that is in excess of the current limit of such validity, but such
obligation shall be fulfilled to the limit of such validity.
This Note is secured by a Mortgage, Assignment of Operating Lease, Assignment
of Fees and Income, and Security Agreement of even date executed by the
undersigned to Empire Financial Services, Inc.
CAUTION: IT IS IMPORTANT THAT YOU THOROUGHLY READ
THE CONTRACT BEFORE YOU SIGN IT.
Executed and given under the hand and seal of the undersigned.
XXXXXXX ALABAMA, INC. [SEAL]
An Alabama Corporation
By: _____________________________________________
Xxxxx X. Xxxxxxx
President
Attest: _________________________________________
Xxxxxx X. Xxxxxx
Secretary
41
The undersigned guarantor and surety hereby guarantees payment and performance
and, to the extent allowed by law, waives the right to require the Noteholder to
proceed first against the Maker/Borrower.
XXXXXXX INNS, INC. [SEAL]
A Georgia Corporation
By: _____________________________________________
Xxxxx X. Xxxxxxx
President
Attest: _________________________________________
Xxxxxx X. Xxxxxx
Secretary
42
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars and other good
and valuable considerations, paid or delivered to XXXXXXX INNS, INC. (hereafter
referred to, collectively, if more than one, as "Guarantor"), the receipt and
sufficiency whereof are hereby acknowledged by Guarantor, and for the purpose of
seeking to induce EMPIRE FINANCIAL SERVICES, INC. (hereinafter referred to as
"Lender") to extend credit to XXXXXXX ALABAMA, INC. (hereinafter referred to as
"Borrower"), which extension of credit will be to the direct interest, benefit,
and advantage of Guarantor, Guarantor, jointly and severally, if more than one,
does hereby unconditionally and absolutely guarantee to Lender and its
successors, successors-in-title and assigns (a) the full and prompt payment when
due, whether by acceleration or otherwise, with such interest as may accrue
thereon, either before or after maturity thereof, of that certain promissory
note dated March ________, 2001 made by Borrower to the order of Lender in the
principal amount of ONE MILLION FIVE HUNDRED THOUSAND AND N0/100 DOLLARS
($1,500,000.00) (hereinafter referred to as the "Note) together with any
renewals, modifications, consolidations and extensions thereof, (b) the full and
prompt payment and performance of any and all obligations of Borrower or any
other party to Lender under the terms of any and all deeds to secure debt,
mortgages, deeds of trust, collateral assignments, and security agreements now
or hereafter securing the indebtedness evidenced by the Note (hereinafter
referred to, collectively, if more than one, as the "Security Instrument"), (c)
the full and prompt payment and performance of all obligations of Borrower to
Lender under the terms of any construction loan agreement relating to the loan
evidenced by the Note (hereinafter referred to as the "Construction Loan
Agreement"), including, without limitation, the obligation to complete the
improvements described in the Construction Loan Agreement, if any, fully paid
for and free and clear of all mechanics' and materialmen's liens, (d) the full
and prompt payment and performance of any and all other obligations of Borrower
to Lender under any other documents or instruments now or hereafter evidencing,
securing, or otherwise relating to the indebtedness evidenced by the Note (the
Security Instrument, the Construction Loan Agreement, and said other documents
and instruments being hereinafter referred to collectively as the "Loan
Documents"), and (e) the full and prompt payment and performance of any and all
other obligations of Borrower to Lender currently in existence or arising while
this Guaranty is in effect. Guarantor does hereby agree that if the Note is not
paid by Borrower in accordance with its terms, or if any and all sums which are
now or may hereafter become due from Borrower to Lender under the Loan Documents
are not paid by Borrower in accordance with their terms, Guarantor will
immediately make such payments. Guarantor further agrees to pay Lender all
expenses (including reasonable attorneys' fees) paid or incurred by Xxxxxx in
endeavoring to collect the indebtedness, to enforce the obligations of Borrower
guaranteed hereby, or any portion thereof, or to enforce this Guaranty.
Guarantor hereby consents and agrees that Lender may at any time, and from
time to time, without notice to or further consent from Guarantor, either with
or without consideration, surrender any property or other security of any kind
or nature whatsoever held by it or by any person, firm or corporation on its
behalf or for its account, securing any indebtedness or liability hereby
guaranteed, substitute for any collateral so held by it, other collateral of
like kind, or of any kind; agree to modify the terms of the Note or the Loan
Documents; extend or renew the Note for any period; grant releases, compromises
and indulgences with respect to the Note, or the Loan Documents and to any
person or entities now or hereafter liable thereunder or hereunder; release any
Guarantor or any other guarantor or endorser of the Note, the Security
Instrument, the Construction Loan Agreement, or any other of the Loan Documents;
or take or fail to take any action of any type whatsoever. No such action which
Lender shall take or fail to take in connection with the Loan Documents, or any
of them, or any security for the payment of the indebtedness of Borrower to
Lender or for the performance of any obligations or undertakings of Borrower,
nor any course of dealing with Borrower or any other person, shall release
Guarantor's obligations hereunder, affect this Guaranty in any way or afford
Guarantor any recourse against Lender. The provisions of this Guaranty shall
extend and be applicable to all renewals, amendments, extensions, consolidations
and modifications of the Loan Documents, and any and all references herein to
Loan Documents shall be deemed to include any such renewals, extensions,
amendments, consolidations or modifications thereof. This Guaranty absolutely
and unconditionally guarantees the performance of all obligations to Xxxxxx made
on behalf of Borrower by any officer, partner, or agent of Borrower.
43
Guarantor hereby subordinates any and all indebtedness of Borrower now or
hereafter owed to any Guarantor to all indebtedness of Borrower to Lender, and
agrees with Lender that Guarantor shall not demand or accept any payment of
principal or interest from Borrower, shall not claim any offset or other
reduction of Guarantor's obligations hereunder because of any such indebtedness
and shall not take any action to obtain any of the security described in and
encumbered by the Security Instrument; provided, however, that, if Lender so
requests, such indebtedness shall be collected, enforced and received by
Guarantor as trustee for Lender and be paid over to Lender on account of the
indebtedness of Borrower to Lender, but without reducing or affecting in any
manner the liability of Guarantor under the other provisions of this Guaranty.
Guarantor hereby waives and agrees not to assert or take advantage of (a) the
defense of the statute of limitations in any action hereunder or for the
collection of the indebtedness or the performance of any obligations hereby
guaranteed; (b) any defense that may arise by reason of the incapacity, lack of
authority, death or disability of Guarantor or any other person or entity, or
the failure of Lender to file or enforce a claim against the estate (either in
administration, bankruptcy, or any other proceedings) of Borrower or any other
person or entity; (c) any defense based on the failure of Lender to give notice
of the existence, creation or incurring of any new or additional indebtedness or
obligation or of any action or non-action on the part of any other person
whomsoever, in connection with any obligation hereby guaranteed; (d) any defense
based upon an election of remedies by Lender which destroys or otherwise impairs
any subrogation rights of Guarantor or the right of Guarantor to proceed against
Borrower for reimbursement; or both; (e) any defense based upon a failure of
Lender to commence an action against Borrower; (f) any duty on the part of
Lender to disclose to Guarantor any facts it may now or hereafter know regarding
Borrower; (g) acceptance or notice of acceptance of this Guaranty by Lender; (h)
notice of presentment and demand for payment of any of the indebtedness or
performance of any of the obligations hereby guaranteed; (i) protest and notice
of dishonor or of default to Guarantor or to any other party with respect to the
indebtedness or performance of obligations hereby guaranteed; (j) any and all
other notices whatsoever to which Guarantor might otherwise be entitled; (k) any
defense based on lack of due diligence by Xxxxxx in collection, protection or
realization upon any collateral securing the indebtedness evidenced by the Note;
and (l) any other legal or equitable defenses whatsoever to which Guarantor
might otherwise be entitled. This Guaranty shall not be affected by any
litigation between Borrower and Lender nor shall it be impaired because of
termination of any relationship between Guarantor and Borrower.
This is a guaranty of payment and performance and not of collection. The
liability of Guarantor under this Guaranty shall be direct and immediate and not
conditional or contingent upon the pursuit of any remedies against Borrower or
any other person, nor against securities or liens available to Lender, its
successor, successors-in-title, endorsees or assigns. Guarantor waives any
right to require that an action be brought against Borrower or any other person
or to require that resort be had to any security or to any balance of any
deposit account or credit on the books of Lender in favor of Borrower or any
other person. In the event of a default under the Loan Documents, or any of
them, Lender shall have the right to enforce its rights, powers and remedies
thereunder or hereunder or under any other instrument now or hereafter
evidencing, securing or otherwise relating to the indebtedness evidenced by the
Note or secured by the Security Instrument or relating to the transactions
contemplated by the Loan Agreement, in any order, and all rights, powers and
remedies available to Lender in such event shall be nonexclusive and cumulative
of all other rights, powers and remedies provided thereunder or hereunder by law
or in equity. Accordingly, Guarantor hereby authorizes and empowers Lender upon
acceleration of the maturity of the Note, at its sole discretion, and without
notice to Guarantor, to exercise any right or remedy which Lender may have,
including, but not limited to, judicial foreclosure, exercise of rights of power
of sale, acceptance of a deed or assignment in lieu of foreclosure, appointment
of a receiver to collect rents and profits, exercise of remedies against
personal property, or enforcement of any assignment of leases, as to any
security, whether real, personal or intangible. If the indebtedness guaranteed
hereby is partially paid by reason of the election of Xxxxxx, its successors,
endorsees or assigns, to pursue any of the remedies available to Lender, or if
such indebtedness is otherwise partially paid, this Guaranty shall nevertheless
remain in full force and effect, and Guarantor shall remain liable for the
entire unpaid balance of the indebtedness guaranteed hereby, even though any
rights which Guarantor may have against Borrower may be destroyed or diminished
by the exercise of any such remedy. Until all of the obligations of Borrower to
Lender have been paid and performed in full, Guarantor shall have no right of
subrogation to Lender against
44
Borrower, and Guarantor hereby waives any rights to enforce any remedy which
Lender may have against Borrower and any rights to participate in any security
for the Note.
In the event that the Lender selects non-judicial foreclosure as a remedy for
Borrower's default, the Guarantor's rights to subrogation can be destroyed and
Guarantor may, as a result thereof, be entitled to a defense against a
deficiency action. Guarantor, nevertheless, knowingly and voluntarily waives
any such defense and acknowledges liability for any deficiency.
Guarantor hereby authorizes Xxxxxx, without notice to Guarantor, to apply all
payments and credits received from Borrower or from Guarantor or realized from
any security in such manner and in such priority as Lender in its sole judgment
shall see fit to the indebtedness, obligations and undertakings which are the
subject of this Guaranty.
The books and records of Xxxxxx showing the accounts between Xxxxxx and
Xxxxxxxx shall be admissible in evidence in any action or proceeding hereon as
prima facie proof of the items set forth therein.
Guarantor acknowledges that this Guaranty was negotiated, executed and
delivered in the State of Georgia, and shall be governed and construed in
accordance with the law of the State of Georgia, regardless of the situs of any
other Loan Documents.
Guarantor hereby (a) submits to personal jurisdiction in the State of Georgia
for the enforcement of this Guaranty, and (b) waives any and all personal rights
under the law of any state to object to jurisdiction within the State of Georgia
for the purposes of litigation to enforce this Guaranty. In the event that such
litigation is commenced, and Guarantor is not otherwise deemed a resident of the
State of Georgia, Guarantor agrees that service of process may be made and
personal jurisdiction over Guarantor obtained, by the serving of a copy of the
summons and complaint upon Guarantor's appointed agent for service of process in
the State of Georgia, who, unless otherwise designated as provided herein, shall
be the person then serving as President or Chief Executive Officer of Lender.
Nothing contained herein, however, shall prevent Lender from bringing any
action or exercising any rights against any security or against Guarantor
personally, or against any property of Guarantor, within any other state.
Initiating such proceeding or taking such action in any other state shall in no
event constitute a waiver of the agreement contained herein that the law of the
State of Georgia shall govern the rights and obligations of Guarantor and Lender
hereunder or of the submission herein made by Guarantor to personal jurisdiction
within the State of Georgia. The aforesaid means of obtaining personal
jurisdiction and perfecting service of process are not intended to be exclusive
but are cumulative and in addition to all other means of obtaining personal
jurisdiction and perfecting service of process now or hereafter provided by the
law of the State of Georgia.
Each Guarantor warrants and represents to Lender that all financial statements
heretofore delivered by him to Lender are true and correct in all respects as of
the date hereof.
Each Guarantor waives any and all homestead and exemption rights available by
virtue of the Constitution or the laws of the United States of America or of any
state as against this Guaranty, and renewal hereof, or any indebtedness
represented hereby, and does transfer, convey and assign to Lender a sufficient
amount of such homestead or exemption as may be allowed, including such
homestead or exemption as may be set apart in bankruptcy, to pay all amounts due
hereunder in full, with all costs of collection, and does hereby direct any
trustee in bankruptcy having possession of such homestead or exemption to
deliver to Lender a sufficient amount of property or money set apart as exempt
to pay the indebtedness guaranteed hereby, or any renewal thereof, and does
hereby, jointly and severally, appoint Lender the attorney-in-fact for each of
them, to claim any and all homestead exemptions allowed by law.
As security for the liabilities and obligations of Guarantor hereunder, each
Guarantor hereby transfers and conveys to Lender any and all balances, credits,
deposits, accounts, items and monies of each Guarantor now or hereafter in the
possession or control of or otherwise with Lender, and Lender is hereby given a
lien upon, security
45
title to and a security interest in all property of Guarantor of every kind and
description now or hereafter in the possession or control of Lender for any
reason, including all dividends and distributions on or other rights in
connection therewith. Lender may, without demand or notice of any kind, at any
time, or from time to time, when any amount shall be due and payable hereunder
by such Guarantor, appropriate and apply toward the payment of such amount, and
in such order of application as Lender may from time to time elect, any
property, balances, credits, deposits, accounts, items or monies of any
Guarantor in the possession or control of Lender for any purpose.
This Guaranty may not be changed orally, and no obligation of Guarantor can be
released or waived by Lender or any officer or agent of Xxxxxx, except by a
writing signed by a duly authorized officer of Lender and bearing the seal of
Lender. This Guaranty shall be irrevocable by Guarantor so long as the Loan
Agreement shall remain in effect and until all indebtedness guaranteed hereby
has been completely repaid and all obligations and undertakings of Borrower
under, by reason of, or pursuant to the Loan Documents have been completely
performed.
Any and all notices, elections, demands, requests and responses thereto
permitted or required to be given under this Guaranty shall be in writing,
signed by or on behalf of the party giving the same, and shall be deemed to have
been properly given and shall be effective upon being personally delivered, or
upon being deposited in the United States mail, postage prepaid, certified with
return receipt requested, to the party at the address of such party set forth
below or at such other address within the continental United States as such
other party may designate by notice specifically designated as a notice of
change of address and given in accordance herewith; provided, however, that the
time period in which a response to any such notice, election, demand or request
must be given shall commence on the date of receipt thereof; and provided
further that no notice of change of address shall be effective until the date of
receipt thereof. Personal delivery to a party or to any officer, partner, agent
or employee of such party at said address shall constitute receipt. Rejection
or other refusal to accept or inability to deliver because of changed address of
which no notice has been received shall also constitute receipt. Any such
notice, election, demand, request or response, if given to Lender, shall be
addressed as follows:
EMPIRE FINANCIAL SERVICES, INC.
000 XXXXXXXXX XXXXXXX
XXXXXXXXXXXXX, XXXXXXX 00000
and, if given to Guarantor, shall be addressed as follows:
XXXXXXX INNS, INC.
0 XXXXXXXXX XXXXXX XXXX
XXXXX 0000
XXXXXXX, XXXXXXX 00000
The provisions of this Guaranty shall be binding upon each Guarantor and each
Guarantor's successors, successors-in-title, heirs, legal representatives and
assigns and shall inure to the benefit of Xxxxxx, its successors, successors-in-
title, heirs, legal representatives and assigns. This Guaranty shall in no
event be impaired by any change which may arise by reason of the death of
Borrower or Guarantor, if individuals, or by reason of the dissolution of
Borrower or Guarantor, if Borrower or Guarantor is a corporation, or
partnership.
As used herein, the terms "each Guarantor" and "any Guarantor" shall refer to
the undersigned single Guarantor, or, if more than one, shall refer respectively
to each or any separate member of the undersigned collective Guarantor. If more
than one person or entity constitutes, collectively, Borrower, all of the
foregoing provisions referring to Borrower shall be construed to refer to each
such person or entity individually as well as collectively. For example, if
there are two persons who are, collectively, Borrower, this Guaranty shall
guarantee the full and prompt payment and performance of all obligations under
the Loan Documents of Borrower, and of each of said two persons constituting
Borrower.
Each Guarantor has executed this Guaranty individually and not as a partner of
Borrower or any other member of Guarantor.
46
If from any circumstances whatsoever fulfillment of any provisions of this
Guaranty, 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 Guaranty 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 shall control every other provision of this
Guaranty.
Any provisions of this Agreement to the contrary notwithstanding, Guarantor
hereby absolutely and unconditionally waives Guarantor's right to reimbursement,
contribution and subrogation with regard to any payments made by Guarantor
pursuant to the terms of this Unconditional Guaranty of Payment and Performance.
Guarantor further agrees to reimburse Lender for any payments made to Lender
that Lender is required to pay over to Borrower's Trustee in a bankruptcy case
or as a result of any other judicial proceeding.
Notwithstanding the payment and satisfaction of the Note, Guarantor's
obligation to reimburse Lender for any payments that are avoided as a result of
being characterized, for bankruptcy purposes, as preferential, shall continue
for period of one year beyond the date of Xxxxxxxx's last payment to Lender.
Guarantor warrants and represents to Lender that all financial statements
given to Lender are accurate and that Guarantor is currently solvent and will
not be rendered insolvent by virtue of financial obligations, contingent or
otherwise, arising under terms of this Unconditional Guaranty of Payment and
Performance.
The Guaranty is assignable by Xxxxxx, and any full or partial assignment
hereof by Xxxxxx shall operate to vest in the assignee all rights and powers
herein conferred upon and granted to Xxxxxx and so assigned by Xxxxxx.
This Unconditional Guaranty and Payment of Performance contains the entire
--------------------------------------------------------------------------
agreement between the parties hereto and there are no promises, agreements,
---------------------------------------------------------------------------
conditions, undertakings, warranties and representations, whether written or
----------------------------------------------------------------------------
oral, express or implied, between the parties, other than as set forth herien.
------------------------------------------------------------------------------
IN WITNESS WHEREOF, Xxxxxxxxx has executed this Guaranty under seal as of the
_____ day of March, 2001.
XXXXXXX INNS, INC. [SEAL]
_____________________________
XXXXX X. XXXXXXX
President
_____________________________
XXXXXX X. XXXXXX
Secretary
Guarantor designates the following individual, or entity, a resident of the
State of Georgia, as Guarantor's agent for service of process for purposes of
any litigation for enforcement of this Guaranty:
________________________
________________________
________________________
47
