<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
---------
Killearn Properties, Inc.
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(Name of Issuer)
Common Stock, Par Value $.10 per share
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(Title of Class of Securities)
494125707
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(CUSIP Number)
James M. Baker
The Wimberly Investment Fund, L.P.
Suite 300
3000 Corporate Center Drive
Morrow, Georgia 30260
(770) 968-1900
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 15, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box / /.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Continued on following page(s))
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CUSIP No. 494125707 13D
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(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
The Wimberly Investment Fund, L.P.
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(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
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(3) SEC Use Only
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(4) Source of Funds*
00
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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(6) Citizenship or Place of Organization
Georgia
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Number of Shares (7) Sole Voting
Beneficially Owned Power 288,650
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 0
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(9) Sole Dispositive
Power 288,650
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(10) Shared Dispositive
Power 0
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
288,650
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
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(13) Percent of Class Represented by Amount in Row (11)
32.5%
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(14) Type of Reporting Person*
PN
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*SEE INSTRUCTION BEFORE FILLING OUT!
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ITEM 1. SECURITY AND ISSUER.
This Statement on Schedule 13D (the "Schedule 13D") relates to the
Common Stock, par value $.10 per share (the "Common Stock"), of Killearn
Properties, Inc. ("Issuer"). The principal executive offices of Issuer are
located at 100 Eagle's Landing Way, Stockbridge, Georgia 30281.
ITEM 2. IDENTITY AND BACKGROUND.
This Schedule 13D is filed on behalf of The Wimberly Investment Fund,
L.P. ("Wimberly"). Wimberly is a Georgia limited partnership having its
principal place of business located at Suite 300, 3000 Corporate Center
Drive, Morrow, Georgia 30260. Wimberly's principal business is investment in
securities and real estate.
Hudson Bridge Company, Inc. ("Hudson Bridge"), a Georgia corporation,
is the sole general partner of Wimberly. The principal business of Hudson
Bridge is managing investments for Wimberly and other entities. Listed below
are the names and occupational information for each executive officer and
director of Hudson Bridge, and each person controlling Hudson Bridge and
Wimberly. During the last five (5) years, neither Wimberly, nor Hudson
Bridge nor, to the best of their knowledge, any of the individuals identified
below, have been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or have been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and
as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
TITLE AND PRESENT
NAME PRINCIPAL OCCUPATION
---- --------------------
James M. Baker President and a director of Hudson Bridge
Company, Inc.
Private real estate investor
Peggy D. Johnsa Secretary and Treasurer of Hudson Bridge
Company, Inc.
Administrative Assistant of Lassiter Properties, Inc.
Frank M. Baker Director of Hudson Bridge Company, Inc.
Private real estate investor
The business address of Wimberly, Hudson Bridge and each of the
individuals identified above is Suite 300, 3000 Corporate Center Drive,
Morrow, Georgia 30260.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Wimberly purchased 288,650 shares (the "Shares") of Issuer's Common
Stock shares from Proactive Technologies, Inc. ("Proactive"), in a private
foreclosure sale conducted by Killearn, Inc., as a secured creditor, on
January 15, 1998. The purchase price was $7.25 per Share, representing the
most recent trading price of the Common Stock on the American Stock Exchange.
Wimberly's acquisition of the Shares was financed by a one-year 8.5% loan of
the purchase price from Killearn,
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Inc., secured by a pledge of the Shares of Common Stock to Killearn, Inc.
The promissory note and security agreement between Killearn, Inc. and
Wimberly are customary in form and contain standard default provisions.
Killearn, Inc. has agreed to hold Wimberly harmless in the event that
Proactive contests the validity of the foreclosure.
ITEM 4. PURPOSE OF TRANSACTION.
Wimberly has acquired the Shares for investment purposes and has no
present plans to seek representation on the Issuer's Board of Directors, but
may do so in the future. Wimberly is currently evaluating acquiring an
additional 26,780 shares of Common Stock owned by Proactive Technologies,
Inc., which are currently collateral securing debt of a subsidiary of the
Issuer to Killearn, Inc.
Except as indicated above or elsewhere herein, Wimberly has no present
plans or proposals (although it reserves the right to develop such plans or
proposals in the future) which relate to or would result in:
a. The acquisition by any person of additional securities of Issuer, or
the disposition of securities of Issuer;
b. An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving Issuer or any of its
subsidiaries;
c. A sale or transfer of a material amount of assets of Issuer or any of
its subsidiaries;
d. Any change in the present board of directors or management of Issuer,
including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
e. Any material change in the present capitalization or dividend policy
of Issuer;
f. Any other material change in Issuer's business or corporate structure;
g. Changes in Issuer's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control
of Issuer by any person;
h. Causing a class of securities of Issuer to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities
association; or
i. Any action similar to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Wimberly is the beneficial owner of 288,650 shares of Common Stock,
representing approximately 32.5% of the outstanding shares of Issuer's Common
Stock, based on 887,412 outstanding shares of Common Stock as reported on
Issuer's Form 10-QSB for the quarter ended
2
<PAGE>
October 31, 1997. Wimberly has the sole power to vote and to dispose of the
Shares subject to the right of Killearn, Inc. to vote or sell the Shares in
the event of default under Wimberly's note to Killearn, Inc. Except as
described herein, no transactions in the Common Stock were effected by
Wimberly in the previous sixty day period. No other person is known to have
a right to receive or the power to direct the receipt of dividends from, or
the proceeds from the sale of, the Common Stock owned by Wimberly, other than
the rights of Killearn, Inc. in the event of default.
Neither Hudson Bridge nor any of its officers or directors are the
beneficial owners of any other shares of the Issuer's Common Stock.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
See item 3 above. The Security Agreement between Wimberly and Killearn,
Inc. provides that upon an event of default of Wimberly's note to Killearn,
Inc., Killearn, Inc. would have the right to vote and dispose of the Shares
held by Wimberly. Wimberly may consult and confer with Killearn, Inc. and its
principal, J.T. Williams, Jr., with respect to the voting of the Shares.
There are no agreements, contracts or other arrangements with respect to the
voting of the Shares.
Except as indicated herein, Wimberly has not entered into any
contracts, arrangements, understandings, or relationships (legal or
otherwise) with respect to any securities of Issuer.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 99.1. Promissory Note
Exhibit 99.2. Security Agreement
Exhibit 99.3 Hold Harmless Agreement
3
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SIGNATURE.
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
THE WIMBERLY INVESTMENT FUND, L.P.
By: Hudson Bridge, Company, Inc.,
its General Partner
By: /s/ JAMES M. BAKER
-------------------------------
Name: James M. Baker
Title: President
January 26, 1998
4
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Borrower's Name and Address
"I" includes each borrower below, jointly and severally.
THE WIMBERLY INVESTMENT FUND, L.P.
Suite 300
300 Corporate Center Dr.
Morrow, Ga. 30260
Lender's Name and Address
"You" means the Lender, its successors and assigns.
KILLEARN, INC.
100 Eagle's Landing Way
Stockbridge, Ga., 30281
Loan Number:
Date: January 15, 1998
Maturity Date: January 15, 1999
Tax ID#: 58-2025217
For value received, I promise to pay to you, or your order, at your address
listed above the PRINCIPAL sum of TWO MILLION NINETY TWO THOUSAND SEVEN
HUNDRED TWELVE AND 51/100--------------Dollars $2,092,712.50.
SINGLE ADVANCE: I will receive all of this principal sum on January 15,
1998. No additional advances are contemplated under this note.
INTEREST: I agree to pay interest on the outstanding principal balance from
January 15, 1998 at the rate of 8.5% per year until January 15, 1999
ACCRUAL METHOD: Interest will be calculated on a ACTUAL/365 day basis.
POST MATURITY RATE: I agree to pay interest on the unpaid balance of this
note owing after maturity, and until paid in full, as stated below:
At a rate equal to 10% per annum
PAYMENTS: I agree to pay this note as follows:
INTEREST: I agree to pay accrued interest on January 15, 1999
PRINCIPAL: I agree to pay the principal on January 15, 1999
SECURITY: This note is separately secured by (describe separate document by
type and date):
288,650 shares of common stock of KILLEARN PROPERTIES, INC.
PURPOSE: The purpose of this loan is Investment
SIGNATURES AND SEALS: IN WITNESS WHEREOF, I have signed my name and affixed
my seal on this 15th day of January, 1998. By doing so, I agree to the terms
of this Note (including those on page 2). I have received a copy on today's
Date.
THE WIMBERLY INVESTMENT FUND, L.P.
BY: /s/ JAMES M. BAKER
------------------------------------
President of G.P.
SIGNATURE FOR LENDER
/s/ J.T. WILLIAMS, JR.
- ---------------------------------------
J. T. Williams, Jr., PRESIDENT
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DEFINITIONS: As used on page 1, "__" means the terms that apply to this
loan. "I," "me" or "my" means each Borrower who signs this note and each
other person or legal entity (including guarantors, endorsers, and sureties)
who agrees to pay this note (together referred to as "us"). "You" or "your"
means the Lender and its successors and assigns.
APPLICABLE LAW: The law of the state of Georgia will govern this note. Any
term of this note which is contrary to applicable law will not be effective,
unless the law permits you and me to agree to such a variation. If any
provision of this agreement cannot be enforced according to its terms, this
fact will not affect the enforceability of the remainder of this agreement.
No modification of this agreement may be made without your express written
consent. Time is of the essence in this agreement.
PAYMENTS: Each payment I make on this note will first reduce the amount I
owe you for charges which are neither interest nor principal. The remainder
of each payment will then reduce accrued unpaid interest, and then unpaid
principal. If you and I agree to a different application of payments, we
will describe our agreement on this note. I may prepay a part of, or the
entire balance of this loan without penalty, unless we specify to the
contrary on this note. Any partial prepayment will not excuse or reduce any
later scheduled payment until this note is paid in full (unless, when I make
the prepayment, you and I agree in writing to the contrary).
INTEREST: Interest accrues on the principal remaining unpaid from time to
time, until paid in full. If I receive the principal in more than one
advance, each advance will start to earn interest only when I receive the
advance. The interest rate in effect on this note at any given time will
apply to the entire principal advanced at that time. You and I may provide
in this agreement for accrued interest not paid when due to be added to
principal. Notwithstanding anything to the contrary, I do not agree to pay
and you do not intend to charge any rate of interest that is higher than the
maximum rate of interest you could charge under applicable law for the
extension of credit that is agreed to here (either before or after maturity).
If any notice of interest accrual is sent and is in error, we mutually agree
to correct it, and if you actually collect more interest than allowed by law
and this agreement, you agree to refund it to me.
INDEX RATE: The index will serve only as a device for setting the rate on
this note. You do not guarantee by selecting this index, or the margin, that
the rate on this note will be the same rate you charge on any other loans or
class of loans to me or other borrowers.
ACCRUAL METHOD: The amount of interest that I pay on this loan will be
calculated using the interest rate and accrual method stated on page 1 of
this note. For the purpose of interest calculation, the accrual method will
determine the number of days in a "year." If no accrual method is stated,
then you may use any reasonable accrual method for calculating interest.
POST MATURITY RATE: For purposes of deciding when the "Post Maturity Rate"
(shown on page 1) applies, the term "maturity" means the date of the last
scheduled payment indicated on page 1 of this note or the date you accelerate
payment on the note, whichever is earlier.
SINGLE ADVANCE LOANS: If this is a single advance loan, you and I expect
that you will make only one advance of principal. However, you may add other
amounts to the principal if you make any payments described in the "PAYMENTS
BY LENDER" paragraph below, or if we have agreed that accrued interest not
paid when due may be added to principal.
MULTIPLE ADVANCE LOANS: If this is a multiple advance loan, you and I expect
that you will make more than one advance of principal. If this is closed end
credit, repaying a part of the principal will not entitle me to additional
credit.
PAYMENTS BY LENDER: If you are authorized to pay, on my behalf, charges I am
obligated to pay (such as property insurance premiums), then you may treat
those payments made by you as advances and add them to the unpaid principal
under this note, or you may demand immediate payment of the charges.
SET-OFF: I agree that you may set off any amount due and payable under this
note against any right I have to receive money from you.
"Right to receive money from you" means:
(1) any deposit account balance I have with you;
(2) any money owed to me on an item presented to you or in your possession
for collection or exchange; and
(3) any repurchase agreement or other nondeposit obligation.
"Any amount due and payable under this note" means the total amount of which
you are entitled to demand payment under the terms of this note at the time
you set off. This total includes any balance the due date for which you
properly accelerate under this note.
If my right to receive money from you is also owned by someone who has not
agreed to pay this note, your right of set off will apply to my interest in
the obligation and to any other amounts I could withdraw on my sole request
or endorsement. Your right of set-off does not apply to an account or other
obligation where my rights are only as a representative. It also does not
apply to any Individual Retirement Account or other tax deferred retirement
account.
You will not be liable for the dishonor of any check when the dishonor occurs
because you set off this debt against any of my accounts. I agree to hold
you harmless from any such claims arising as a result of your exercise of
your right of set-off.
REAL ESTATE OR RESIDENCE SECURITY: If this note is secured by real estate or
a residence that is personal property, the existence of a default and your
remedies for such a default will be determined by applicable law, by the
terms of any separate instrument creating the security interest and, to the
extent not prohibited by law and not contrary to the terms of the separate
security instrument, by the "Default" and "Remedies" paragraphs herein.
DEFAULT: I will be in default if any one or more of the following occur:
(1) I fail to make a payment on time or in the amount due; (2) I fail to keep
the property insured, if required; (3) I fail to pay, or keep any promise, on
any debt or agreement I have with you; (4) any other creditor of mine
attempts to collect any debt I owe him through court proceedings; (5) I die,
am declared incompetent, make an assignment for the benefit of creditors, or
become insolvent (either because my liabilities exceed my assets or I am
unable to pay my debts as they become due); (6) I make any written statement
or provide any financial information that is untrue or inaccurate at the time
it was provided; (7) I do or fail to do something which causes you to believe
that you will have difficulty collecting the amount I owe you; (8) any
collateral securing this note is used in a manner or for a purpose which
threatens confiscation by a legal authority; (9) I change my name or assume
an additional name without first notifying you before making such a change;
(10) I fail to plant, cultivate and harvest crops in due season; (11) any
loan proceeds are used for a purpose that will contribute to excessive
erosion of highly credible land or to the conversion of wetlands to produce
an agricultural commodity, as further explained in 7 C.F.R. Part 1940,
Subpart G, Exhibit M.
REMEDIES: If I am in default on this note you have, but are not limited to,
the following remedies:
(1) You make demand immediate payment of all I owe you under this note
(principal, accrued unpaid interest and other accrued charges).
(2) You may set off this debt against any right I have to the payment of money
from you, subject to the terms of the "Set-Off" paragraph herein.
(3) You may demand security, additional security, or additional parties to be
obligated to pay this note as a condition for not using any other remedy.
(4) You may refuse to make advances to me or allow purchases on credit by me.
(5) You may use any remedy you have under state or federal law.
By selecting any one or more of these remedies you do not give up your right to
later use any other remedy. By waiving your right to declare an event to be a
default, you do not waive your right to later consider the event as a default if
it continues or happens again.
COLLECTION COSTS AND ATTORNEY'S FEES: I agree to pay all costs of collection,
replevin or any other or similar type of cost if I am in default. In addition,
if you hire an attorney to collect this note, I also agree to pay any fee, not
to exceed 15 percent of the principal and interest then owed, you incur with
such attorney plus court costs (except where prohibited by law). To the extent
permitted by the United States Bankruptcy Code, I also agree to pay the
reasonable attorney's fees and costs you incur to collect this debt as awarded
by any court exercising jurisdiction under the Bankruptcy Code.
WAIVER: I give up my rights to require you to do certain things. I will not
require you to:
(1) demand payment of amounts due (presentment);
(2) obtain official certification of nonpayment (protest);
(3) give notice that amounts due have not been paid (notice of dishonor); or
(4) give me notice prior to seizure of my personal property when you are
seeking to foreclose a secured interest in any of my personal property used
to secure a commercial transaction.
I waive any defenses I have based on suretyship or impairment of collateral.
OBLIGATIONS INDEPENDENT: I understand that I must pay this note even if
someone else has also agreed to pay it (by, for example, signing this form or
a separate guarantee of endorsement). You may sue me alone, or anyone else
who is obligated on this note, or any number of us together, to collect this
note. You may do so without any notice that is has not been paid (notice of
dishonor). You may without notice release any party to this agreement without
releasing any other party. If you give up any of your rights, with or
without notice, it will not affect my duty to pay this note. Any extension
of new credit to any of us, or renewal of this note by all or less than all
of us will not release me from my duty to pay it. (Of course, you are
entitled to only one payment in full.) I agree that you may at your option
extend this note or the debt represented by this note, or any portion of the
note or debt, from time to time without limit or notice and for any term
without affecting my liability for payment of the note. I will not assign my
obligation under this agreement without your prior written approval.
CREDIT INFORMATION: I agree and authorize you to obtain credit information
about me from time to time (for example, by requesting a credit report) and
to report to others your credit experience with me (such as a credit
reporting agency). I agree to provide you, upon request, any financial
statement or information you may deem necessary. I warrant that the
financial statements and information I provide to you are or will be
accurate, correct and complete.
NOTICE: Unless otherwise required by law, any notice to me shall be given by
delivering it or by mailing it by first class mail addressed to me at my last
known address. My current address is on page 1. I agree to inform you in
writing of any change in my address. I will give any notice to you my
mailing it first class to your address stated on page 1 of this agreement, or
to any other address that you have designated.
<PAGE>
SECURITY AGREEMENT
(Collateral Pledge Agreement)
Date: January 15, 1998
Debtor: THE WIMBERLY INVESTMENT FUND, L.P.
Business
Or Residence Suite 300
Address: 300 Corporate Center Drive
City, State
& Zip Code: Morrow, Ga., 30260
Secured Party: KILLEARN, INC.
Address: 100 Eagle's Landing Way
City, State
& Zip Code: Stockbridge, Ga., 30281
1. SECURITY INTEREST AND COLLATERAL.
To secure the debt, liability or obligation of the Debtor to secured party
evidence by the following: Promissory note dated January 15, 1998 in the
amount of $2,092,712.50 between the parties and any extensions, renewals or
replacements thereof therein referred to as the "Obligations").
Debtor hereby grants Secured Party a security interest (herein called the
"Security Interest") in the property owned by Debtor and held by Secured
Party that is described as follows: 288,650 shares of the common stock of
KILLEARN PROPERTIES, INC. together with all rights in connection with such
property (herein called the "Collateral").
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. DEBTOR REPRESENTS,
WARRANTS AND COVENANTS THAT:
(a) Debtor will duly endorse, in blank, each and every instrument
constituting Collateral by signing on said instrument or by signing a
separate document of assignment or transfer, if required by Secured Party.
(b) Debtor is the owner of the Collateral free and clear of all
liens, encumbrances, security interests and restrictions, except the Security
Interest and any restrictive legend appearing on any instrument constituting
Collateral.
(c) Debtor will keep the Collateral free and clear of all liens,
encumbrances and security interests, except the Security Interest.
(d) Debtor will pay, when due, all taxes and other governmental
charges levied or assessed upon or against any Collateral.
(e) At any time, upon request by Secured Party, Debtor will
deliver to Secured Party all notices, financial statements, reports or other
communications received by Debtor as an owner or holder of the Collateral.
(f) Debtor will upon receipt deliver to Secured Party in pledge
ass additional Collateral all securities distributed on account of the
Collateral such as stock dividends and securities resulting from Stock
splits, reorganizations and recapitalizations.
THIS AGREEMENT CONTAINS ADDITIONAL PROVISIONS SET FORTH ON PAGES 2 AND 3
HEREOF, ALL OF WHICH ARE MADE A PART HEREOF.
DEBTOR'S NAME:
THE WIMBERLY INVESTMENT FUND, L. P.
By: /s/ JAMES M. BAKER
------------------------------------
Title: President of G. P.
---------------------------------
<PAGE>
ADDITIONAL PROVISIONS
3. RIGHTS OF SECURED PARTY. Debtor agrees that Secured Party may at
any time, whether before or after the occurrence of an Event of Default and
without notice or demand of any kind, (i) notify the obligor on or issuer of
any Collateral to make payment to Secured Party of any amounts due or
distributable thereon, (ii) in Debtor's name or Secured Party's name enforce
collection of any Collateral by suit or otherwise, or surrender, release or
exchange all or any part of it, or compromise, extend or renew for any period
any obligation evidenced by the Collateral, (iii) receive all proceeds of the
Collateral, and (iv) hold any increase or profits received from the
Collateral as additional security for the Obligations, except that any money
received from the Collateral shall, at Secured Party's option, be applied in
reduction of the Obligations, in such order of application as Secured Party
may determine, or be remitted to Debtor.
4. EVENTS OF DEFAULT. Each of the following occurrences shall
constitute an event of default under this Agreement (herein called "Event of
Default"); (i) Debtor shall fail to pay any or all of the Obligations when
due or (if payable on demand) on demand, or shall fail to observe or perform
any covenant or agreement herein binding on it; (ii) any representation or
warranty by Debtor set forth in this Agreement or made to Secured Party in
any financial statements or reports submitted to Secured Party by or on
behalf of Debtor shall prove materially false or misleading; (iii) a
garnishment summons or a writ of attachment shall be issued against or served
upon the Secured Party for the attachment of any property of the Debtor or
any indebtedness owing to Debtor; (iv) Debtor or any guarantor of any
Obligation shall (A) be or become insolvent (however defined); (B)
voluntarily file, or have filed against it involuntarily, a petition under
the United States Bankruptcy Code; or (C) if a corporation, partnership or
organization, be dissolved or liquidated or, if a partnership, suffer the
death of a partner or, if an individual, die; or (D) go out of business; (v)
Secured Party shall in good faith believe that the value then realizable by
collection or disposition of the Collateral, after deduction of expenses of
collection and disposition, is less than the aggregate unpaid balance of all
Obligations then outstanding; (vi) Secured Party shall in good faith believe
that the prospect of due and punctual payment of any or all of the
Obligations is impaired.
5. REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Event of
Default and at any time thereafter, Secured Party may exercise any one or
more of the following rights or remedies: (i) declare all unmatured
Obligations to be immediately due and payable, and the same shall thereupon
be immediately due and payable, without presentment or other notice or
demand; (ii) exercise all voting and other rights as a holder of the
Collateral; (iii) exercise and enforce any or all rights and remedies
available upon default to a secured party under the Uniform Commercial Code,
including the right to offer and sell the Collateral privately to purchasers
who will agree to take the Collateral for investment and not with a view to
distribution and who will agree to the imposition of restrictive legends on
the certificates representing the Collateral, and the right to arrange for a
safe which would otherwise qualify as exempt from registration under the
Securities Act of 1933; and if notice to Debtor of any intended disposition
of the Collateral or any other intended action is required by law in a
particular instance, such notice shall be deemed commercially reasonable if
given at least 10 calendar days prior to the date of intended disposition or
other action; (iv) exercise or enforce any or all other rights or remedies
available to Secured Party by law or agreement against the Collateral,
against Debtor or against any other person or property. Upon the occurrence
of the Event of Default described in Section 4(iv)(B), all Obligations shall
be immediately due and payable without demand or notice thereof.
6. MISCELLANEOUS. Any disposition of the Collateral is the manner
provided in Section 5 shall be deemed commercially reasonable. This
Agreement can be waived, modified, amended, terminated or discharged, and the
Security Interest can be released, only explicitly in a writing signed by
Secured Party. A waiver signed by Secured Party shall be effective only in
the specific instance and for the specific purpose given. Mere delay or
failure to act shall not preclude the exercise or enforcement of any of
Secured Party's rights or remedies. All rights and remedies of Secured Party
shall be cumulative and may be exercised singularly or concurrently, at
Secured Party's option, and the exercise or enforcement of any one such right
or remedy shall neither be a condition to nor bar the exercise or enforcement
of any other. All notices to be given to Debtor shall be deemed sufficiently
given if delivered or mailed by registered or certified mail, postage
prepaid, to Debtor at its address set forth above or at the most recent
address shown on Secured Party's records. Secured Party's duty of care with
respect to Collateral in its possession (as imposed by law) shall be deemed
fulfilled if Secured Party exercises reasonable care in physically
safekeeping such Collateral or, in the case of Collateral in the custody or
possession of a bailee or other third person, exercises reasonable care in
the selection of the bailee or other third person, and Secured Party need not
otherwise preserve, protect, insure or care for any Collateral. Secured Party
shall not be obligated to preserve any rights Debtor may have against prior
parties, to exercise at all or in any particular manner any voting rights
which may be available with respect to any Collateral, to realize on the
Collateral at all or in any particular manner or order, or to apply any cash
proceeds of Collateral in any particular order of application. Debtor will
reimburse Secured Party for all expenses (including reasonable attorney's
fees and legal expenses) incurred by Secured Party in the protection, defense
or enforcement of the Security Interest, including expenses incurred in any
litigation or bankruptcy or insolvency proceedings. This Agreement shall be
binding upon and inure to the benefit of Debtor and Secured Party and their
respective heirs, representatives, successors and assigns and shall take
effect when signed by Debtor and delivered to Secured Party, and Debtor
waives notice of Secured Party's acceptance hereof. This Agreement shall be
governed by laws of the state in which it is executed and, unless the context
otherwise requires, all terms used herein which are defined in Articles 1 and
9 of the Uniform Commercial Code, as in effect in said state, shall have the
meanings therein stated. If any provision or application of this Agreement
is held unlawful or unenforceable in any respect, such illegality or
unenforceability shall not affect other provisions or applications which can
be given effect, and this Agreement shall be construed as if the unlawful or
unenforceable provision or application had never been contained herein or
prescribed hereby. All representations and warranties contained in this
Agreement shall survive the execution,
<PAGE>
delivery and performance of this Agreement and the creation and payment of
the Obligations. If this Agreement is signed by more than one person as
Debtor, the term "Debtor" shall refer to each of them separately and to both
or all of them jointly, all such persons shall be bound both severally and
jointly with the other(s); and the Obligations shall include any debts,
liabilities and obligations owed to Secured Party by a Debtor solely or by
both or several or all Debtors jointly or jointly and severally, and all
property described in Section 1 shall be included as part of the Collateral,
whether it is owned jointly by both or all Debtors or is owned in whole or in
part by one (or more) of them.
<PAGE>
HOLD HARMLESS AGREEMENT
STATE OF GEORGIA
COUNTY OF HENRY
This Hold Harmless Agreement made and entered into this the 15th day of
January, 1998 by and between Killearn, Inc., a Georgia Corporation
(hereinafter "Killearn") and The Wimberly Investment Fund, L.P. (hereinafter
"Wimberly") is as follows:
WHEREAS, on January 13, 1998, First Community Bank of Henry County did sell,
assign, transfer, convey and set over unto Killearn, its successors and
assigns, all of its rights, powers, interests, remedies and options under, in
and to that certain Promissory Note from ProActive Technologies, Inc.
(hereinafter "ProActive") to First Community, dated September 17, 1997 in the
original principal amount of $866,869.43, (hereinafter called "Note")
together with all collateral securing said Note, including all of ProActive's
right title and interest in and to 288,650 shares of common stock in Killearn
Properties, Inc. (hereinafter "The Shares").
WHEREAS, Wimberly has agreed to purchase the Shares from Killearn.
WHEREAS, as consideration for Wimberly's purchase of the Shares, Killearn has
agreed to hold harmless and indemnify Wimberly from and against certain
claims which may arise therefore.
NOW, THEREFORE, for and in consideration of the purchase of the Shares and
other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledge by the parties, the parties do agree as follows:
1) Killearn shall hold harmless and indemnify Wimberly, its officers,
agents and employees from and against any and all claims, demands or suits
made or filed by ProActive arising from the purchase of the Shares.
2) In the event of such claim, Wimberly shall, within 5 days of the
receipt of such claim, provide Killearn with written notice of the existence
of such claim.
3) Killearn shall, within 15 days from receipt of such written notice
of claim, obtain the services of an Attorney or Attorneys to be selected by
Killearn to defend Wimberly. Killearn shall pay all costs and expenses
arising from the defense of such claim, including Attorney's fees. The
Attorney selected by Killearn, may represent Killearn, in the event both
Killearn and Wimberly are subject of ProActive's claims.
4) In the event of any conflict of interest which arises with respect
to the Attorney selected to defend Wimberly, Killearn shall select, at its
sole option, a replacement Attorney to defend Wimberly. In such instance,
Killearn shall continue to pay all Attorney's fees incurred in the defense of
any claims filed by ProActive.
5) Wimberly shall not compromise, settle or negotiate any claim
brought by ProActive against First Community arising from the purchase of the
Shares without the prior written consent of Killearn.
6) Killearn shall, in its sole discretion, settle,compromise or
negotiate any such claims raised by ProActive without the written consent of
Wimberly.
7) Killearn shall pay any Final Judgment of a court of competent
jurisdiction rendered against Wimberly, its officers, agents and employees in
favor of ProActive or any other person or entity as a result of the purchase
of the Shares.
<PAGE>
In Witness Whereof, the parties have hereunto set their respective hands and
seals the day and year set forth above.
KILLEARN, INC.
BY: /s/ J.T. WILLIAMS, JR.
------------------------------------
TITLE: President
Signed, sealed and delivered
In the presence of:
/s/ HEIDI BERGER
- ---------------------------------------
Unofficial Witness
/s/ PEGGY D. JOHNSA
- ---------------------------------------
Notary Public
My Commission Expires
THE WIMBERLY INVESTMENT FUND, L.P.
BY: /s/ JAMED M. BAKER
------------------------------------
TITLE: President of G.P.
BY:
TITLE:
Signed, sealed and delivered in the
Presence of:
/s/ HEIDI BERGER
- ---------------------------------------
Unofficial Witness
/s/ PEGGY D. JOHNSA
- ---------------------------------------
Notary Public
My Commission Expires:
