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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 30, 1998
KOGER EQUITY, INC.
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(Exact name of registrant as specified in its charter)
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Florida 1-9997 59-2898045
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(State of incorporation (Commission (IRS Employer
or organization) File Number) Identification No.)
8880 Freedom Crossing Trail
Jacksonville, Florida 32256
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(Address of principal executive offices) (Zip Code)
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Registrant's telephone number: (904) 732-1000
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N/A
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
Reference is made to copies of loan documents dated as of December 30,
1998 evidencing a $150 million revolving credit facility provided Koger Equity,
Inc. ("Koger") by First Union National Bank ("First Union") formerly known as
First Union National Bank of Florida, AmSouth Bank ("AmSouth"), Guaranty Federal
Bank F.S.B. ("Guaranty Federal"), Citizens Bank of Rhode Island ("Citizens") and
Compass Bank ("Compass") (collectively, the "Lenders"), which documents are
filed as Exhibits 10(k)(1) through 10(k)(7)(d) to this report and to a Koger
News Release dated January 5, 1999 concerning the same matter, which is Exhibit
99 to this Report. These exhibits are incorporated herein by reference.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
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Exhibit Number Description of Exhibit
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10(k)(1) The Second Amended and Restated
Revolving Credit Loan Agreement,
dated as of December 30, 1998,
between and among Koger and the
Lenders.
10(k)(2)(a) The Substitution Revolving
Promissory Note, dated December 30,
1998, issued by Koger to First Union
in the principal amount of up to
$45,000,000.
10(k)(2)(b) The Substitution Revolving
Promissory Note, dated December 30,
1998, issued by Koger to AmSouth in
the principal amount of up to
$35,000,000.
10(k)(2)(c) The Substitution Revolving
Promissory Note, dated December 30,
1998, issued by Koger to Guaranty
Federal in the principal amount of
up to $35,000,000.
10(k)(2)(d) The Revolving Promissory Note, dated
December 30, 1998, issued by Koger
to Citizens in the principal amount
of up to $20,000,000.
10(k)(2)(e) The Revolving Promissory Note, dated
December 30, 1998, issued by Koger
to Compass in the principal amount
of up to $15,000,000.
10(k)(3)(a) The Mortgage, Assignment of Leases
and Rents, and Security Agreement,
dated as of December 30, 1998,
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Exhibit Number Description of Exhibit
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relating to that portion of the
Collateral located in the State of
Alabama.
10(k)(3)(b) The Assignment of Leases and Rents,
dated as of December 30, 1998,
relating to that portion of the
Collateral located in the State of
Alabama.
10(k)(3)(c) The Assignment of Contracts,
Licenses and Permits, dated as of
December 30, 1998, relating to that
portion of the Collateral in the
State of Alabama.
10(k)(3)(d) The Environmental Indemnification
Agreement, dated as of December 30,
1998, relating to that portion of
the Collateral in the State of
Alabama.
10(k)(4)(a)(i) The Second Amended and Restated Deed
to Secure Debt and Spreader,
Assignment of Leases and Rents, and
Security Agreement, dated as of
December 30, 1998, relating to that
portion of the Collateral located in
DeKalb County, State of Georgia.
10(k)(4)(a)(ii) The Amendment to Assignment of
Leases and Rents, dated as of
December 30, 1998, relating to that
portion of the Collateral located in
DeKalb County, State of Georgia.
10(k)(4)(a)(iii) The Amendment to Environmental
Indemnification Agreement, dated as
of December 30, 1998, relating to
that portion of the Collateral
located in DeKalb County, State of
Georgia.
10(k)(4)(a)(iv) The Amendment to Assignment of
Contracts, Licenses and Permits,
dated as of December 30, 1998,
relating to that portion of the
Collateral located in DeKalb County,
State of Georgia.
10(k)(4)(b)(i) The Deed to Secure Debt, Assignment
of Leases and Rents, and Security
Agreement, dated as of December 30,
1998, relating to that portion of
the Collateral located in Gwinnett
County, State of Georgia.
10(k)(4)(b)(ii) The Assignment of Leases and Rents,
dated as of December 30, 1998,
relating to that portion of the
Collateral located in Gwinnett
County, State of Georgia.
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Exhibit Number Description of Exhibit
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10(k)(4)(b)(iii) The Environmental Indemnification
Agreement, dated as of December 30,
1998, relating to that portion of
the Collateral located in Gwinnett
County, State of Georgia.
10(k)(4)(b)(iv) The Amendment to Assignment of
Contracts, Licenses and Permits,
dated as of December 30, 1998,
relating to that portion of the
Collateral located in Gwinnett
County, State of Georgia [included
within the document listed above in
Exhibit 10(k)(4)(a)(iv)].
10(k)(5)(a)(i) The Second Amended and Restated Deed
of Trust, Assignment of Leases and
Rents and Security Agreement, dated
as of December 30, 1998, relating to
that portion of the Collateral
located in Guilford County, State of
North Carolina.
10(k)(5)(a)(ii) The Amended and Restated Assignment
of Leases and Rents, dated as of
December 30, 1998, relating to that
portion of the Collateral located in
Guilford County, State of North
Carolina.
10(k)(5)(a)(iii) The Amendment to Environmental
Indemnification Agreement, dated as
of December 30, 1998, relating to
that portion of the Collateral
located in both Guilford and
Mecklenburg Counties, State of North
Carolina.
10(k)(5)(a)(iv) The Amendment to Assignment of
Contracts, Licenses and Permits,
dated as of December 30, 1998,
relating to that portion of the
Collateral located in both Guilford
and Mecklenburg Counties, State of
North Carolina.
10(k)(5)(b)(i) The Amended and Restated Deed of
Trust, Assignment of Leases and
Rents and Security Agreement, dated
as of December 30, 1998, relating to
that portion of Collateral located
in Mecklenburg County, State of
North Carolina.
10(k)(5)(b)(ii) The Amended and Restated Assignment
of Leases and Rents, dated as of
December 30, 1998, relating to that
portion of the Collateral located in
Mecklenburg County, State of North
Carolina.
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Exhibit Number Description of Exhibit
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10(k)(5)(b)(iii) The Amended and Restated Mortgage,
Assignment of Leases and Rents, and
Security Agreement, dated as of
December 30, 1998, relating to that
portion of the Collateral located in
the State of South Carolina.
10(k)(6)(a) The Amendment to Assignment of
Leases and Rents, dated as of
December 30, 1998, relating to that
portion of the Collateral located in
the State of South Carolina.
10(k)(6)(b) The Amendment to Environmental
Indemnification Agreement, dated as
of December 30, 1998, relating to
that portion of the Collateral in
the State of South Carolina.
10(k)(6)(c) The Amendment to Assignment of
Contracts, Licenses and Permits,
dated as of December 30, 1998,
relating to that portion of the
Collateral in the State of South
Carolina.
10(k)(7)(a) The Deed of Trust, Assignment of
Leases and Rents, and Security
Agreement, dated as of December 30,
1998, relating to that portion of
the Collateral located in the State
of Texas.
10(k)(7)(b) The Assignment of Leases and Rents,
dated as of December 30, 1998,
relating to that portion of the
Collateral located in the State of
Texas.
10(k)(7)(c) The Environmental Indemnification
Agreement, dated as of December 30,
1998, relating to that portion of
the Collateral in the State of
Texas.
10(k)(7)(d) The Assignment of Contracts,
Licenses and Permits, dated as of
December 30, 1998, relating to that
portion of the Collateral in the
State of Texas.
10(k)(8) Unconditional Guaranty, dated
December 30, 1998, of Koger Real
Estate Services, Inc. and Southeast
Properties Holding Corporation, Inc,
both wholly owned of Koger to
perform and make payments pursuant
to the Second Amended and Restated
Revolving Credit Loan Agreement.
99 Koger Equity, Inc. News Release
dated January 5, 1999.
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5
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SIGNATURE
Pursuant to the Requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
KOGER EQUITY, INC.
Date: February 12, 1999 By: /s/ James L. Stephens
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James L. Stephens
Title: Vice President and Chief
Accounting Officer
6
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EXHIBIT INDEX
The following designated exhibits are filed herewith:
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Exhibit
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10(k)(1) The Second Amended and Restated Revolving Credit Loan
Agreement, dated as of December 30, 1998, between and among
Koger and the Lenders.
10(k)(2)(a) The Substitution Revolving Promissory Note, dated December
30, 1998, issued by Koger to First Union in the principal
amount of up to $45,000,000.
10(k)(2)(b) The Substitution Revolving Promissory Note, dated December
30, 1998, issued by Koger to AmSouth in the principal amount
of up to $35,000,000.
10(k)(2)(c) The Substitution Revolving Promissory Note, dated December
30, 1998, issued by Koger to Guaranty Federal in the
principal amount of up to $35,000,000.
10(k)(2)(d) The Revolving Promissory Note, dated December 30, 1998,
issued by Koger to Citizens in the principal amount of up to
$20,000,000.
10(k)(2)(e) The Revolving Promissory Note, dated December 30, 1998,
issued by Koger to Compass in the principal amount of up to
$15,000,000.
10(k)(3)(a) The Mortgage, Assignment of Leases and Rents, and Security
Agreement, dated as of December 30, 1998, relating to that
portion of the Collateral located in the State of Alabama.
10(k)(3)(b) The Assignment of Leases and Rents, dated as of December 30,
1998, relating to that portion of the Collateral located in
the State of Alabama.
10(k)(3)(c) The Assignment of Contracts, Licenses and Permits, dated as
of December 30, 1998, relating to that portion of the
Collateral in the State of Alabama.
10(k)(3)(d) The Environmental Indemnification Agreement, dated as of
December 30, 1998, relating to that portion of the
Collateral in the State of Alabama.
10(k)(4)(a)(i) The Second Amended and Restated Deed to Secure Debt and
Spreader, Assignment of Leases and Rents, and Security
Agreement, dated as of December 30, 1998, relating to that
portion of the Collateral located in DeKalb County, State of
Georgia.
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Exhibit
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10(k)(4)(a)(ii) The Amendment to Assignment of Leases and Rents, dated as of
December 30, 1998, relating to that portion of the
Collateral located in DeKalb County, State of Georgia.
10(k)(4)(a)(iii) The Amendment to Environmental Indemnification Agreement,
dated as of December 30, 1998, relating to that portion of
the Collateral located in DeKalb County, State of Georgia.
10(k)(4)(a)(iv) The Amendment to Assignment of Contracts, Licenses and
Permits, dated as of December 30, 1998, relating to that
portion of the Collateral located in DeKalb County, State of
Georgia.
10(k)(4)(b)(i) The Deed to Secure Debt, Assignment of Leases and Rents, and
Security Agreement, dated as of December 30, 1998, relating
to that portion of the Collateral located in Gwinnett
County, State of Georgia.
10(k)(4)(b)(ii) The Assignment of Leases and Rents, dated as of December 30,
1998, relating to that portion of the Collateral located in
Gwinnett County, State of Georgia.
10(k)(4)(b)(iii) The Environmental Indemnification Agreement, dated as of
December 30, 1998, relating to that portion of the
Collateral located in Gwinnett County, State of Georgia.
10(k)(4)(b)(iv) The Amendment to Assignment of Contracts, Licenses and
Permits, dated as of December 30, 1998, relating to that
portion of the Collateral located in Gwinnett County, State
of Georgia [included within the document listed above in
Exhibit 10(k)(4)(a)(iv)].
10(k)(5)(a)(i) The Second Amended and Restated Deed of Trust, Assignment of
Leases and Rents and Security Agreement, dated as of
December 30, 1998, relating to that portion of the
Collateral located in Guilford County, State of North
Carolina.
10(k)(5)(a)(ii) The Amended and Restated Assignment of Leases and Rents,
dated as of December 30, 1998, relating to that portion of
the Collateral located in Guilford County, State of North
Carolina.
10(k)(5)(a)(iii) The Amendment to Environmental Indemnification Agreement,
dated as of December 30, 1998, relating to that portion of
the Collateral located in both Guilford and Mecklenburg
Counties, State of North Carolina.
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Exhibit
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10(k)(5)(a)(iv) The Amendment to Assignment of Contracts, Licenses and
Permits, dated as of December 30, 1998, relating to that
portion of the Collateral located in both Guilford and
Mecklenburg Counties, State of North Carolina.
10(k)(5)(b)(i) The Amended and Restated Deed of Trust, Assignment of Leases
and Rents and Security Agreement, dated as of December 30,
1998, relating to that portion of Collateral located in
Mecklenburg County, State of North Carolina.
10(k)(5)(b)(ii) The Amended and Restated Assignment of Leases and Rents,
dated as of December 30, 1998, relating to that portion of
the Collateral located in Mecklenburg County, State of North
Carolina.
10(k)(5)(b)(iii) The Amended and Restated Mortgage, Assignment of Leases and
Rents, and Security Agreement, dated as of December 30,
1998, relating to that portion of the Collateral located in
the State of South Carolina.
10(k)(6)(a) The Amendment to Assignment of Leases and Rents, dated as of
December 30, 1998, relating to that portion of the
Collateral located in the State of South Carolina.
10(k)(6)(b) The Amendment to Environmental Indemnification Agreement,
dated as of December 30, 1998, relating to that portion of
the Collateral in the State of South Carolina.
10(k)(6)(c) The Amendment to Assignment of Contracts, Licenses and
Permits, dated as of December 30, 1998, relating to that
portion of the Collateral in the State of South Carolina.
10(k)(7)(a) The Deed of Trust, Assignment of Leases and Rents, and
Security Agreement, dated as of December 30, 1998, relating
to that portion of the Collateral located in the State of
Texas.
10(k)(7)(b) The Assignment of Leases and Rents, dated as of December 30,
1998, relating to that portion of the Collateral located in
the State of Texas.
10(k)(7)(c) The Environmental Indemnification Agreement, dated as of
December 30, 1998, relating to that portion of the
Collateral in the State of Texas.
10(k)(7)(d) The Assignment of Contracts, Licenses and Permits, dated as
of December 30, 1998, relating to that portion of the
Collateral in the State of Texas.
10(k)(8) Unconditional Guaranty, dated December 30, 1998, of Koger
Real Estate Services, Inc. and Southeast Properties Holding
Corporation, Inc, both wholly owned of Koger to perform and
make payments pursuant to the Second Amended and Restated
Revolving Credit Loan Agreement.
99 Koger Equity, Inc. News Release dated January 5, 1999.
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EXHIBIT 10(k)(1)
U.S. $150,000,000
SECOND AMENDED AND RESTATED
REVOLVING CREDIT LOAN AGREEMENT
Dated as of December 30 , 1998
between
KOGER EQUITY, INC.
as Borrower
and
FIRST UNION NATIONAL BANK, AS ADMINISTRATIVE AGENT AND
ARRANGER
AMSOUTH BANK, AS SYNDICATION AGENT,
AND
THE LENDERS
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.......................................................1
SECTION 1.1 Certain Defined Terms.........................................................1
SECTION 1.2 Accounting Terms.............................................................14
ARTICLE 2 AMOUNT AND TERMS OF ADVANCES..........................................................14
SECTION 2.1 Advances.....................................................................14
(a) Advances.....................................................................14
(b) Letter of Credit.............................................................14
(c) Terms of Letters of Credit...................................................15
(d) Requests for Issuance of Letter of Credit....................................15
(e) Reimbursement Obligations....................................................15
(f) Effect of Letters of Credit on Commitments...................................15
(g) Agent's Duties Regarding Letters of Credit;
Unconditional Nature of Reimbursement Obligation.............................16
(h) Amendments, Etc..............................................................17
(i) Lenders' Participation in Letters of Credit..................................17
(j) Information to Lenders.......................................................17
SECTION 2.2 Making Advances..............................................................17
SECTION 2.3 Swing Line Advances..........................................................19
SECTION 2.4 Fees.........................................................................21
SECTION 2.5 Repayment of Advances; Prepayments...........................................21
SECTION 2.6 Interest Rate; Default Rate..................................................23
SECTION 2.7 Payments and Computations....................................................23
SECTION 2.8 Evidence of Indebtedness.....................................................24
SECTION 2.9 Prior LIBOR Advances.........................................................24
SECTION 2.10 Advances Under Prior Loan Agreement..........................................24
SECTION 2.11 Increase to Loan Amount......................................................24
ARTICLE III CONDITIONS OF LENDING AND FINANCIAL COVENANTS.........................................25
SECTION 3.1 Conditions Precedent to Advances and Financial
Covenants....................................................................25
SECTION 3.2 Conditions Precedent to Certain Advances.....................................27
SECTION 3.3 Eligible Borrowing Base......................................................28
ARTICLE IV ADDITION, SUBSTITUTION AND RELEASE OF
COLLATERAL............................................................................29
SECTION 4.1 General Right to Add, Substitute or Release Collateral.......................29
SECTION 4.2 Requirements for Release of Collateral.......................................30
SECTION 4.3 Requirements for Addition or Substitution of Collateral......................30
SECTION 4.4 Lenders' Approval of Addition or Substitution of
Collateral...................................................................33
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ARTICLE V CERTAIN MATTERS CONCERNING THE COLLATERAL.............................................34
SECTION 5.1 Inspections..................................................................34
SECTION 5.2 Appraisals...................................................................34
SECTION 5.3 Insurance....................................................................34
SECTION 5.4 Taxes and Assessments........................................................35
SECTION 5.5 Tax and Insurance Deposits...................................................35
SECTION 5.6 Tax Service Contract; Annual Tax Searches....................................36
SECTION 5.7 Due on Sale..................................................................36
SECTION 5.8 Loss and Restoration following Casualty or
Condemnation.................................................................36
ARTICLE VI REPRESENTATIONS AND WARRANTIES........................................................37
SECTION 6.1 Representations and Warranties of Borrower...................................37
ARTICLE VII COVENANTS OF BORROWER.................................................................39
SECTION 7.1 Affirmative Covenants........................................................39
(a) Costs and Expenses...........................................................40
(b) Rent Roll....................................................................40
(c) Compliance with Governmental Requirements....................................40
(d) Preservation of Corporate Existence..........................................40
(e) Preservation and Maintenance of Collateral...................................41
(f) Reporting Requirements.......................................................41
(g) Notice of Failure to Perform.................................................42
SECTION 7.2 Negative Covenants...........................................................42
(a) Use of Loan Proceeds.........................................................42
(b) Structural Alterations.......................................................42
(c) Change in Nature of Business.................................................42
(d) Transactions with Subsidiaries...............................................42
ARTICLE VIII DEFAULT...............................................................................42
SECTION 8.1 Events of Default............................................................42
SECTION 8.2 Remedies following an Event of Default.......................................44
SECTION 8.3 Default Interest.............................................................44
SECTION 8.4 Remedies Cumulative..........................................................44
ARTICLE IX THE AGENT.............................................................................45
SECTION 9.1 Appointment, Powers and Immunities...........................................45
SECTION 9.2 Reliance.....................................................................46
SECTION 9.3 Defaults.....................................................................47
SECTION 9.4 Rights as a Lender...........................................................47
SECTION 9.5 Indemnification..............................................................47
SECTION 9.6 Non-Reliance on Agent and Other Lenders......................................48
SECTION 9.7 Failure to Act...............................................................48
SECTION 9.8 Resignation of Agent.........................................................48
SECTION 9.9 No Partnership...............................................................49
SECTION 9.10 Collateral...................................................................49
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ARTICLE X OBLIGATIONS AND RIGHTS OF THE LENDERS.................................................49
SECTION 10.1 Custody of Loan Documents....................................................49
SECTION 10.2 Account Records..............................................................50
SECTION 10.3 Collections of Payments......................................................50
SECTION 10.4 Standard of Care.............................................................50
SECTION 10.5 Payment; Set Offs and Banker's Liens.........................................50
SECTION 10.6 Selection and Adjustment of Interest Rates...................................50
SECTION 10.7 Disbursements for Protection of Collateral and Collection
and Enforcement of Obligations...............................................51
ARTICLE XI ENFORCEMENT OF THE LOAN...............................................................51
SECTION 11.2 Waiver of Default and Modification...........................................52
SECTION 11.3 Foreclosure or Exercise of Power of Sale.....................................52
SECTION 11.4 Disposition of Collateral After Foreclosure or Exercise of
Power of Sale................................................................52
ARTICLE XII ASSIGNMENTS...........................................................................53
SECTION 12.1 Survival; Parties Bound: Successors and Assigns..............................53
ARTICLE XIII MISCELLANEOUS.........................................................................54
SECTION 13.1 Prior Loan Agreement.........................................................54
SECTION 13.2 Amendments, Etc..............................................................54
SECTION 13.3 Indemnification and Limitation of Claims.....................................54
SECTION 13.4 Notices......................................................................55
SECTION 13.5 No Waiver; Remedies..........................................................56
SECTION 13.6 Binding Effect; Assignment...................................................56
SECTION 13.7 Governing Law; Jurisdiction and Venue........................................56
SECTION 13.8 Severability.................................................................57
SECTION 13.9 Headings.....................................................................57
SECTION 13.10 Counterparts.................................................................57
SECTION 13.11 WAIVER OF TRIAL BY JURY......................................................57
SECTION 13.12 Transfer of Collateral to Special Purpose Entity.............................57
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SECOND AMENDED AND RESTATED
REVOLVING CREDIT LOAN AGREEMENT
THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT LOAN AGREEMENT (the
"Agreement") dated as of December 30, 1998, by and between KOGER EQUITY, INC., a
Florida corporation (the "Borrower"), and FIRST UNION NATIONAL BANK, a national
association, as Agent for the Lenders (as defined herein).
BACKGROUND
This Second Amended and Restated Revolving Credit Loan Agreement amends
and restates that certain Amended and Restated Revolving Credit Loan Agreement
dated December 29, 1997 by and among First Union National Bank of Florida, a
national association, Morgan Guaranty Trust Company of New York, a New York
banking corporation, AmSouth Bank, a state banking corporation, and Guaranty
Federal Bank, F.S.B., a federal savings bank, as lenders, and Borrower (the
"Prior Loan Agreement"). The covenants, terms and provisions of this Agreement
shall apply and shall govern the administration of the Loan and the making of
Advances from and after the date of execution of this Agreement.
IN CONSIDERATION of the mutual covenants herein contained, Borrower and
the Lenders agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Adjusted EBITDA" means EBITDA minus Replacement Reserves.
"Adjusted Net Operating Income" means the aggregate Net
Operating Income for all Properties included within the Collateral multiplied by
four (4) minus Replacement Reserves.
"Advance" means (i) any Principal Advance, and (ii) any
Letters of Credit issued by the Agent on behalf of the Lenders, in accordance
with the terms and provisions of Section 2.1(b) hereof.
"Affiliate" shall mean any Person controlling, controlled by
or under common control with any other Person. For purposes of this definition,
"control" (including "controlled by" and "under common control with") means the
possession, directly or
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indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
otherwise.
"Agent" means First Union National Bank, in its capacity as
administrative agent for the Lenders.
"Agent's Counsel" means LeBoeuf, Lamb, Greene & MacRae, L.L.P.
"AmSouth" means AmSouth Bank, a state banking corporation.
"Appraisal" means an appraisal of a Property which is FIRREA
compliant.
"Assignment of Contracts" means each Assignment of Contracts,
Licenses and Permits dated the Closing Date or on any Collateral Change Date and
each Amendment to Assignment of Contracts, Licenses and Permits dated the
Closing Date or on any Collateral Change Date given by Borrower to the Agent for
the benefit of the Lenders assigning to the Lenders all of Borrower's interest
in all contracts, licenses, permits, approvals, warranties, guaranties, service
contracts, equipment leases, deposits and water and sewer rights relating to the
Collateral located in each State.
"Base Rate" means an annual rate of interest equivalent to the
interest rate (but not necessarily the best or lowest rate charged borrowing
customers of FUNB) published or announced by FUNB from time to time as its prime
rate, calculated on the basis of a 365 (or 366, if applicable) day year.
"Base Rate Advance" means any Advance bearing interest at the
Base Rate pursuant to Article II.
"Borrower" means, Koger Equity, Inc., a Florida corporation
and any SPE (as defined herein) added as a Borrower pursuant to Section 13.12
from time to time.
"Borrowing Base" means those Properties owned by Borrower
which are encumbered by perfected first mortgage security interests and
assignment of rents and leases and are included as Collateral for the Borrower's
Obligations hereunder and under the Loan.
"Borrowing Base Value" means the aggregate Borrowing Base
Value for all Properties included within the Collateral, determined as follows:
(i) for those Properties listed on Exhibit A under the subset of "Existing
Properties Included Within Collateral", Borrowing Base Value shall mean the
Adjusted Net Operating Income of all such existing Properties included within
the Collateral determined as of the end of the last preceding quarter as
reported to the Agent in accordance with the requirements hereof, multiplied by
four and divided by the Capitalization Rate, (ii) for those Properties listed on
Exhibit A under the subset of "New Properties Included Within Collateral",
Borrowing Base Value shall mean the value set by the Appraisals for all such new
Properties delivered to Agent
2
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in connection with the execution of this Agreement and associated with all such
new Properties. From and after the end of the first quarter following execution
of this Agreement, Borrowing Base Value as to such new Properties shall mean
Adjusted Net Operating Income determined as of the end of the last preceding
quarter as reported to the Agent in accordance with the requirements hereof,
multiplied by four and divided by the Capitalization Rate, and (iii) for all
Properties added to Collateral in accordance with Article IV of this Agreement,
Borrowing Base Value shall be calculated according to the formula set forth in
subsection (ii) above with Adjusted Net Operating Income being used to determine
Borrowing Base Value from and after the end of the first quarter following the
addition of any such Properties or Collateral.
"Business Day" means a day of the year on which banks are not
required or authorized to close in Charlotte, North Carolina, and, if the
applicable Business Day relates to any LIBOR Advances, on which dealings are
carried on in the London interbank market and banks are open for business in
London, England.
"Capitalization Rate" means 9.75% per annum, as adjusted from
time to time upon approval of all of the Lenders and the Borrower.
"Cash Available for Distribution" means, with respect to a
given period, Borrower's Funds From Operations for the most recent four (4)
quarters, excluding all straight line rent leveling adjustments (reported in the
consolidated financial statements of the Borrower for purposes of GAAP) minus
Replacement Reserves and minus Scheduled Principal Payments on such Total Debt
for the most recent four (4) quarters, whether or not paid by Borrower
(excluding balloon payments).
"Citizens" means Citizens Bank of Rhode Island, a Rhode Island
financial institution.
"Closing Date" means December 30, 1998.
"Code" means the Internal Revenue Code, as amended, and
Regulations promulgated thereunder.
"Collateral" means the real property described on attached
Exhibit A, and all easements and appurtenances thereto, and all improvements,
furniture, fixtures and equipment, and related tangible and intangible personal
property owned or leased by Borrower located thereon, and such other real
property and easements and appurtenances thereto, and improvements, furniture,
fixtures and equipment, and related tangible and intangible personal property
owned or leased by Borrower located thereon, now or hereafter mortgaged,
assigned, granted or conveyed by Borrower to the Agent or a trustee for the
benefit of the Lenders as security for the payment and performance of the
Obligations, pursuant to the terms, covenants and conditions of this Agreement
and the other Loan Documents.
3
<PAGE> 8
"Collateral Change Date" means the effective date of any (i)
release of property from the Collateral, or (ii) addition of property to the
Collateral as additional Collateral or in substitution of property released or
to be released from the Collateral, as the case may be, pursuant to Article IV.
"Commitment" means the commitment of the Lenders' funds
pursuant to Article II hereof up to the Loan Amount.
"Compass" means Compass Bank, an Alabama banking corporation.
"Construction in Progress" means, the actual land acquisition
costs and construction costs expended for Properties in which construction has
begun but has not yet been completed. Such Property shall be reclassified from
Construction in Progress upon the completion of construction, as represented by
the issuance of a final certificate of occupancy, or its equivalent.
"Default" has the meaning set forth in Section 8.1.
"Default Rate" means a rate of interest equivalent to the then
applicable interest rate for each outstanding Advance at the time of a
particular Default, plus 4.00%, calculated on the basis of a 360 day year.
"Development in Progress" means the aggregate, good faith
estimated budgeted cost of construction (including land acquisition costs) for
Properties on which construction has begun but has not yet been completed. Such
Property shall be reclassified from Development in Progress upon the earlier of
(1) achieving executed leases in place for 85% of such Property or (2)
completion of construction, as represented by the issuance of a final
certificate of occupancy, or its equivalent.
"Due Diligence Package" shall mean the following information:
Appraisal; Phase I environmental site assessment; market information;
demographics; executed leases; copies of all contracts; permits and licenses
related thereto; rent roll; operating statement; an A.L.T.A. Standard Loan
Policy (or, with respect to any Texas property, a T.L.T.A. Standard Loan Policy)
of title insurance insuring the Security Deed and deleting the gap and standard
exceptions for encroachments and easements not shown by the public records,
matters of survey, mechanics and materialmen's liens and parties in possession,
together with copies of all documents listed as title exceptions therein; an
ALTA/ACSM survey meeting the Minimum Standards and Supplementary Requirements
for surveys on attached Exhibit D, and any other information reasonably
requested by the Agent.
"EBITDA" means, for any period of calculation and without
duplication, net income (loss) of Borrower (including any SPE under Section
13.12) for such period (determined in accordance with GAAP and excluding equity
net income or net losses of Subsidiaries and unconsolidated Affiliates) plus the
sum of the following amounts (but only
4
<PAGE> 9
to the extent included in determining net income (loss) for such period): (a)
depreciation and amortization expense of Borrower for such period plus (b)
Interest Expense of Borrower for such period plus (c) income tax expense of
Borrower in respect of such period plus (d) extraordinary losses of Borrower,
losses from the sale of assets of Borrower and losses resulting from forgiveness
of debt by Borrower, all for such period minus (e) extraordinary gains of
Borrower and gains from the sale of assets of Borrower for such period plus or
minus (f) the Borrower's pro rata share of EBITDA of unconsolidated Affiliates
(that are solely engaged in the investment of office real estate assets)
determined in a manner consistent with this definition of EBITDA plus (g)
deductions taken with respect to minority interest and (h) plus or minus an
adjustment to omit the non-cash effect of straight-lining of Rents. For purposes
of calculating "Adjusted EBITDA" for the financial covenants in Section
3.1(a)(iv) and Section 3.1(a)(v), EBITDA shall include the Borrower's pro rata
share of EBITDA from Koger Realty Services, Inc., a Florida corporation.
"Eligible Assignees" means commercial banks, savings banks,
savings and loan associations or similar financial institutions, insurance
companies and mutual funds having total assets of $5,000,000,000 or more, and
which are generally engaged in lending of this type and in full compliance with
all FDIC Control Act requirements or other regulatory requirements.
"Eligible Land" means land owned by the Borrower and held for
development that meets all zoning requirements for the respective jurisdiction
and is situated within or adjacent to an existing office park or is located
within an existing Market.
"ERISA" means the Employment Retirement Income Security Act of
1974, as amended from time to time, and rules and regulations promulgated
thereunder.
"Event of Default" has the meaning set forth in Section 8.1.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (ii) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Agent on such day on such transactions as determined by the Agent.
"Financial Covenants" has the meaning set forth in Section
3.1(a).
"Fixed Charges" means for the particular period of
calculation, the sum of Interest Expense (including accrued and capitalized
Interest Expense), Scheduled Principal Payments, and preferred stock dividends.
5
<PAGE> 10
"FUNB" means First Union National Bank, a national association
"Funding Date" means each date on which the Lenders make an
Advance, or, in the case of the continuation of an outstanding LIBOR Advance,
the next Business Day following the last day of the Interest Period applicable
to such outstanding LIBOR Advance.
"Funds from Operations" shall have the same meaning as that
contained in the most recently approved NAREIT definition as of July 9, 1998.
"GAAP" means generally accepted accounting principles
consistently applied.
"GFB" means Guaranty Federal Bank, F.S.B., a federal savings
bank.
"Governmental Requirements" means the requirements and
mandates of all governmental laws, statutes, rules, regulations, ordinances or
requirements, including, without limitation, regulations relating to protection
of the environment, building and construction, highway access, disability
access, asbestos, lead-based paint, zoning, land use and concurrency, and other
regulations, applicable to the ownership, development, use or operation of the
Collateral.
"Gross Asset Value" means the sum of the following and without
duplication: (a) the Borrower's (including any SPE under Section 13.12) Adjusted
EBITDA, Less Net Operating Income for the real property assets acquired during
the preceding quarter, for the most recent quarter multiplied by four and
divided by the Capitalization Rate, (b) unrestricted cash and cash equivalents,
(c) 100% of actual costs incurred in new Construction in Progress, restricted to
a maximum of 10% of Gross Asset Value, (d) acquisitions of real property assets
during the preceding quarter at their cost basis, (e) Eligible Land at its cost
basis, and (f) the Borrower's (including any SPE under Section 13.12) GAAP
investment value in Koger Realty Services, Inc. restricted to a maximum value of
$1,500,000.
"Guarantor" means collectively, Koger Real Estate Services,
Inc. and Southeast Properties Holding Corporation.
"Indemnification Agreement" means each Environmental
Indemnification Agreement dated the Closing Date or any Collateral Change Date
and each Amended and Restated Environmental Indemnification Agreement dated the
Closing Date or any Collateral Change Date given by Borrower to and in favor of
the Lenders with respect to the Collateral located in each State.
"Insurer" means American and Foreign Insurance Company, or
such other insurer selected by Borrower and approved by the Lenders and
otherwise authorized to
6
<PAGE> 11
transact business in each State and having an A.M. Best rating of "A-" or better
and an asset size rating of "IX" or better.
"Interest Period" means the 30-day, 60-day, 90-day or 180-day
period, as elected by Borrower pursuant to Section 2.2(a), for any LIBOR
Advance, commencing on the Funding Date of such LIBOR Advance, and ending on the
last date of such period elected by Borrower; provided, that the duration of any
Interest Period that begins prior to the Maturity Date but otherwise would end
after the Maturity Date shall end on the Maturity Date, and further provided,
that if the last day of such Interest Period would otherwise occur on a day that
is not a Business Day, then such last day shall be extended to the next
succeeding Business Day.
"Interest Expense" means the total consolidated interest
expense (including without limitation, capitalized interest expense and interest
expense attributable to capitalized lease obligations) with respect to any
indebtedness of Borrower and its unconsolidated Affiliates, and determined in
accordance with GAAP.
"Koger Net Square Feet" means the floor area unit measurement
utilized by Borrower in the ordinary course of its business in measuring the
floor area of an office building owned by Borrower for which Borrower ordinarily
would receive rent, as follows: (A) measurement is made from centerline of
corridor partitions and partitions separating tenants, (B) measurement is made
from centerline of glass or 3" into wall where no glass is present, for exterior
and permanent walls, and (C) no reduction in floor area is made for columns or
other projections .
"Late Charge" means an amount equivalent to the lesser of
5.00% of any scheduled payment amount or the maximum late charge permitted under
applicable laws of any State if the laws of such State are determined to govern
the Notes or this Loan Agreement.
"Leases" means any tenant leases now or hereafter in existence
in connection with the Collateral.
"Lease Assignment" means each Assignment of Leases and Rents,
and each Amended and Restated Assignment of Leases and Rents, whether
incorporated into any Security Deed or set forth in a separate document, dated
the Closing Date or any Collateral Change Date given by Borrower to and in favor
of the Agent for the benefit of the Lenders, assigning all of Borrower's
interest in the Leases and Rents relating to the Collateral located in each
State.
"Lenders" means collectively, FUNB, AmSouth, Citizens,
Compass, GFB, and their respective successors and assigns.
7
<PAGE> 12
"Lender's Commitment" means each Lender's proportionate share
of the Loan Amount up to which it has committed to make Advances hereunder as
set forth below:
<TABLE>
<CAPTION>
LENDER'S COMMITMENT
LENDER LENDER COMMITMENT
<S> <C>
FUNB $ 45,000,000.00
AmSouth $ 35,000,000.00
GFB $ 35,000,000.00
Citizens $ 20,000,000.00
Compass $ 15,000,000.00
- ------------------------------------------------------------------ ---------------
- ------------------------------------------------------------------ ---------------
- ------------------------------------------------------------------ ---------------
TOTAL $150,000,000.00
</TABLE>
"Lenders' Counsel" means legal counsel engaged by the Lenders
from time to time in connection with the closing, administration, enforcement or
collection of the Loan.
"Lender's Percentage" means each Lender's proportionate
percentage of the Loan Amount committed to by each Lender as set forth below:
<TABLE>
<CAPTION>
LENDER'S PROPORTIONATE PERCENTAGE INTEREST OF LOAN AMOUNT
LENDER LENDER
PERCENTAGE
<S> <C>
First Union National Bank 30.0001%
AmSouth 23.3333%
GFB 23.3333%
Citizens 13.3333%
Compass 10.0000%
- --------------------------------------------------------------------------- ---------------
- --------------------------------------------------------------------------- ---------------
- --------------------------------------------------------------------------- ---------------
TOTAL 100%
</TABLE>
"Letter of Credit" has the meaning set forth in Section
2.1(b).
"Letter of Credit Documents" shall mean any and all documents
evidencing the issuance, acceptance, and drawings under a Letter of Credit.
"Letter of Credit Usage" means, at any time, the sum of (i)
the aggregate maximum amount available to be drawn under the Letters of Credit
then outstanding, assuming compliance with all requirements for drawing referred
to therein and herein, and (ii) the aggregate amount of the Borrower's unpaid
Obligations under this Agreement in respect of the Letters of Credit.
8
<PAGE> 13
"LIBOR" means the interest rate at which 30-day, 60-day,
90-day or 180-day deposits (as elected by Borrower) in United States dollars are
offered to prime banks in the London interbank market which appears on Reuters
Screen FRBD as of 11:00 A.M. (London time), 2 Business Days before the Funding
Date of any LIBOR Advance (or if not so reported, then as determined by FUNB
from another recognized source or interbank quotation) in an amount
approximately equal or comparable to such LIBOR Advance with a maturity equal to
such Interest Period, as adjusted for reserves by dividing that rate by 1.00
minus the Reserve Requirement, if any.
"LIBOR Advance" means any Advance bearing interest at a LIBOR
Interest Rate pursuant to Article II.
"LIBOR Interest Rate" means an annual rate of interest
calculated on the basis of a 360 day year which is equivalent to LIBOR (as
elected by Borrower) plus the applicable margin based upon Koger Equity, Inc.'s
leverage based on the most recent quarter's Borrowing Compliance Certificate
measured on a quarterly basis in accordance with Section 3.1(a)(vi) hereunder
("Borrower's Leverage"). The applicable margins ("Applicable Margins") are as
follows:
(i) if Borrower's Leverage is equal to or less than
.30:1.00 the LIBOR Interest Rate shall equal LIBOR plus 1.30% per
annum;
(ii) if Borrower's Leverage is greater than .30:1.00 and
less than or equal to .45:1.00, the LIBOR Interest Rate shall equal
LIBOR plus 1.45% per annum; and
(iii) if Borrower's Leverage is greater than .45:1.00 and
less than or equal to .55:1.00 the LIBOR Interest Rate shall equal
LIBOR plus 1.60% per annum.
"Loan" means the revolving credit facility in an aggregate
amount up to the Loan Amount made available by the Lenders to Borrower in
accordance with the terms, covenants and conditions of this Agreement.
"Loan Amount" means $150,000,000.00 United States Dollars.
"Loan Documents" means this Agreement, the Notes, the Security
Deeds, the Lease Assignments, the Assignments of Contracts, the Indemnification
Agreements, the Guaranties, and any other instruments, documents, affidavits or
certificates given by Borrower to the Agent or any trustee for the benefit of
the Lenders in support of, or evidencing or securing, the Loan.
"Loan Term" means the term of the Loan, which shall commence
on the Closing Date and shall expire on the Maturity Date.
"Majority Lenders" means the Lenders with an aggregate amount
of at least sixty-six and 67/100 percent (66.67%) of the amount of the
Commitment then outstanding.
9
<PAGE> 14
"Maturity Date" means December 30, 2001.
"Maximum Swing Line Commitment" means a portion of the Loan
Amount equal to a maximum of $2,500,000.00 United States Dollars.
"Mortgage Debt Service" means the assumed principal and
interest payments on the principal outstanding under the Loan at such quarter
end when calculated on a 25 year amortization schedule and an interest rate
equal to the then prevailing ten year United States Treasury Note rate plus
1.75%. For purposes of this definition, at no time shall the interest rate be
less than 8.00% per annum.
"Net Income" means, for any period, Borrower's net income
determined in accordance with GAAP, adjusted to omit the straight line treatment
of rent.
"Net Operating Income" means, for any income producing
operating Property included in the Borrowing Base and for any given fiscal
quarter of the Borrower, the sum of the following (without duplication); (a)
Rents and other revenues received in the ordinary course of operating such
Property (including proceeds of rent loss insurance) minus (b) all expenses paid
or accrued related to the ownership, operation or maintenance of such Property,
including but not limited to taxes, assessments and the like, insurance,
utilities, payroll costs, maintenance, repair and landscaping expenses and
on-site marketing expenses, minus (c) property management fees, if any, paid or
accrued in respect of such Property during such period and plus or minus (d) an
adjustment to omit the straight-line treatment of Rents.
"Notice of Borrowing" means any written notice given by
Borrower to the Lenders from time to time requesting an Advance or continuing
any outstanding Advance for an additional Interest Period, if applicable,
specifying the requested Funding Date, the requested Interest Period, the
requested amount of such Advance, and the interest rate elected by Borrower for
such Advance.
"Notes" means collectively (i) the Substitution Revolving
Promissory Note dated as of the Closing Date made by Borrower payable to the
order of FUNB in the original principal amount of $45,000,000, (ii) the
Substitution Revolving Promissory Note dated as of the Closing Date made by
Borrower payable to the order of AmSouth in the original principal amount of
$35,000,000, (iii) the Substitution Revolving Promissory Note dated as of the
Closing Date made by Borrower payable to the order of GFB in the original
principal amount of $35,000,000, (iv) the Revolving Promissory Note dated as of
the Closing Date made by Borrower payable to the order of Citizens in the
original principal amount of $20,000,000, and (v) the Revolving Promissory Note
dated as of the Closing Date made by Borrower payable to the order of Compass in
the original principal amount of $15,000,000, together with any renewals,
modifications or extensions of any of the foregoing.
10
<PAGE> 15
"Obligations" means each and every payment and performance
covenant, condition or agreement of Borrower to or in favor of the Lenders, or
the Agent or any trustee for the benefit of the Lenders under the Loan
Documents, including, without limitation, Borrower's obligation to repay the
Advances, together with interest accrued thereon, in accordance with this
Agreement and the other Loan Documents.
"Person" means any individual, corporation, trust,
unincorporated organization, governmental authority or any other form of entity.
"Plan" means any plan defined in Section 4021(a) of ERISA in
respect of which Borrower or any Subsidiary is an "employer" or a "substantial
employer" as said terms are defined in Section 3(5) and 40041(a)(2),
respectively, of ERISA.
"Principal Advance" means any disbursement of principal out of
the available undisbursed Loan Amount by the Lenders to Borrower.
"Property" means any interest in any kind of property or
asset, whether real, leasehold, personal or mixed, tangible or intangible.
"REIT" means a Real Estate Investment Trust under ss.856-860
of the Code.
"Rents" means all rents, profits, issues, income and royalties
received from the Leases or otherwise in connection with the Collateral.
"Rent Roll" means a document, certified by Borrower to be
complete and correct, identifying all leases on any property that is or will
become Collateral, the identity of the tenants thereunder, the location and
floor area (both Koger Net Square Feet and leased area) of the leased premises
thereunder, and the rent for the leased premises thereunder, and all other
information pertaining to such leases as the Lenders shall require.
"Replacement Reserves" means the greater of (1) an allowance
for a normal level of recurring capital expenditures and lease commissions equal
to (i) $1.25 per Koger Net Square Feet per year, multiplied by (ii) the total
current Koger Net Square Footage of all Properties owned by the Borrower with a
certificate of occupancy or its equivalent or (2) actual expenditures (excluding
new building, major renovation or rehabilitation and building acquisitions) and
lease commissions for the most recent four (4) quarters. For purposes of this
definition, the calculation of replacement reserves with respect to cash flow
coverage tests shall be based on the weighted average Koger Net Square Footage
for the respective measurement period. Actual capital expenditures shall not
include costs associated with first generation space.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA.
11
<PAGE> 16
"Reserve Requirement" means the maximum percentage reserve
requirement, if any, applicable to FUNB or any other Lender (rounded to the next
higher 1/100 of 1% and expressed as a decimal) in effect for any day during the
Interest Period under the Federal Reserve Board's Regulation D for Eurocurrency
Liabilities as defined therein.
"Scheduled Principal Payments" means all regularly scheduled,
non-balloon payments of principal on Total Debt and capital leases, plus
Interest Expense incurred with respect to subordinated Total Debt.
"SEC" means the federal Securities and Exchange Commission.
"Security Agreement" means each Security Agreement and each
Amended and Restated Security Agreement, whether incorporated into any Security
Deed or set forth in a separate document, or any amendment or modification
thereto, dated the Closing Date or any Collateral Change Date given by Borrower
to and in favor of the Agent for the benefit of the Lenders, granting to the
Agent a first lien and security interest in that portion of the Collateral
located in each State that constitutes tangible and intangible personal
property.
"Security Deed" means each Deed to Secure Debt, Amended and
Restated Deed to Secure Debt, Deed of Trust, Amended and Restated Deed of Trust,
Assignment of Leases and Rents and Security Agreement, Mortgage, Assignment of
Leases and Rents and Security Agreement, Amended and Restated Mortgage and
Security Agreement, or any modification or amendment thereof, dated the Closing
Date or any Collateral Change Date given by Borrower to and in favor of the
Agent or a trustee for the benefit of the Lenders, granting to the Agent or such
trustee a first lien and security interest or absolute title interest in that
portion of the Collateral located in each State that constitutes real property,
easements and appurtenances thereto, and improvements and fixtures, and
sometimes incorporating a Security Agreement and/or Lease Assignment.
"Shareholders' Equity" means, at any date, Borrower's
stockholders' equity (determined on a book basis), less its Intangible Assets,
as determined as of such date. For purposes of this definition, "Intangible
Assets" means with respect to any such intangible assets, (i) the amount (to the
extent reflected in determining such stockholders' equity) of all write-ups
(other than write-ups resulting from foreign currency translations and write-ups
of assets of a going concern business made within 12 months after the
acquisition of such business) subsequent to December 31, 1996, in the book value
of any asset (other than real property assets) owned by Borrower, and (ii)
goodwill, patents, trademarks, service marks, trade names, anticipated future
benefit of tax loss carry forwards, copyrights, organization or developmental
expenses and other intangible assets.
"State" means each state in which the Collateral is located.
12
<PAGE> 17
"Stated Amount" means the stated amount of any Letter of
Credit issued hereunder.
"Subsidiary"means the corporations described on attached
Exhibit G, which corporations are wholly-owned subsidiaries of Borrower,
together with any other direct or indirect subsidiary of Borrower which falls
within the meaning of "significant subsidiary" for federal securities law
purposes (except for purposes of Section 6.1 wherein Subsidiary shall mean only
those Subsidiaries listed on attached Exhibit G).
"Summary Requirements" means the Summary Requirements for
Additions to Collateral Pool Properties attached as Exhibit B.
"Swing Line Advance" means an advance made by any Swing Line
Bank pursuant to Section 2.3.
"Swing Line Bank" means the Agent in its capacity as Swing
Line Bank hereunder or any successor thereto as provided herein.
"Swing Line Borrowing" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank.
"Swing Line Note" means that certain Swing Line Promissory
Note of even date herewith in the amount of $2,500,000.00 from Borrower to Swing
Line Bank.
"Title Commitment" has the meaning set forth in Section
4.3(b).
13
<PAGE> 18
"Total Debt" means all obligations and liabilities of the
Borrower on a fully consolidated basis, determined in accordance with GAAP,
including capital leases, mortgage payables, notes payable, senior notes,
convertible debentures, subordinated debentures, and secured or unsecured debt
owed to banks or other financial institutions. Total Debt shall also include the
Borrower's: (a) obligations under all letters of credit including Letters of
Credit issued hereunder, (b) guarantees of indebtedness, (c) loans where the
Borrower is liable for debt as a general partner, and (d) the Borrower's pro
rata share of debt in unconsolidated Affiliates.
"Total Debt Service" means, for any period, an amount equal to
the sum of (i) Interest Expense (whether paid, accrued or capitalized) actually
payable by Borrower on its Total Debt, and (ii) Scheduled Principal Payments on
such Total Debt, whether or not paid by Borrower (excluding balloon payments).
"Title Insurer" means Lawyers Title Insurance Company, and its
authorized title agents in each State.
"Undeveloped Land" means Eligible Land and all other
separately divided undeveloped land held for either development or resale at its
cost.
"Unhedged Variable Rate Debt" means all Debt with a variable
rate of interest that is not contractually swapped into a fixed rate of interest
for a period in excess of one (1) year.
"Unused Fee" means a non-refundable fee determined in
accordance with the following Applicable Margins defined in the calculation of
LIBOR Interest Rate hereunder:
(i) if the Applicable Margin is 1.30% per annum,
then the applicable Unused Fee is .15% per annum;
(ii) if the Applicable Margin is 1.45% per annum,
then the applicable Unused Fee is .20% per annum; or
(iii) if the Applicable Margin is 1.60% per annum,
then the applicable Unused Fee is .20% per annum;
of the aggregate weighted average of each Lender's Commitment which is available
but undisbursed during the immediately preceding calendar quarter, based on the
difference between (a) such Lender's Commitment (or weighted average thereof
during such calendar quarter if such Lender's Commitment changes during such
calendar quarter), and (b) the weighted average of such Lender's Percentage of
outstanding Advances during such calendar quarter. For the purposes of
calculation of the Unused Fee, any Swing Line Advances will not reduce the
Unused Fee otherwise owed any Lender other than the
14
<PAGE> 19
Swing Line Bank, and each Lender's Commitment (except as reduced by outstanding
Advances) will continue to be considered available, notwithstanding any
limitations on Borrower's ability to borrow Advances hereunder.
SECTION 1.2 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, consistently applied,
except as otherwise stated herein.
ARTICLE 2
AMOUNT AND TERMS OF ADVANCES
SECTION 2.1 Advances.
(a) Advances. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances prior to the Maturity
Date to the Borrower not to exceed each Lender's Commitment. Each such request
for an Advance by Borrower shall be deemed a request for an Advance from each
Lender equal to such Lender's Percentage of the aggregate amount so requested,
and such aggregate amount shall be in an amount at least equal to $1,000,000.00
and equal to an integral multiple of $500,000.00. Each principal repayment of
the Loan shall be deemed a repayment of each Lender's aggregate Advances equal
to such Lender's Percentage of the amount so repaid. The obligations of the
Lenders hereunder are several and not joint, and the preceding three sentences
will give rise to certain inappropriate results if special provisions are not
made to accommodate the failure of a Lender to fund an Advance as and when
required by this Agreement; therefore, notwithstanding anything herein to the
contrary, (A) no Lender shall be required to make Advances at any one time
outstanding in excess of such Lender's Percentage of the Commitment, and (B) if
a Lender fails to make an Advance as and when required hereunder (a "Defaulting
Lender") and Borrower subsequently makes a principal repayment of the Loan, such
principal repayment shall be divided among the remaining Lenders which are not
Defaulting Lenders ratably in accordance with their respective Lender's
Percentages until each Lender has its Lender's Percentage of all of the
outstanding Advances, and the balance of such principal repayment shall be
divided among all of the Lenders in accordance with their respective Lender's
Percentages. The Advances shall be evidenced by the Notes.
(b) Letter of Credit. Subject to the terms and conditions of
Section 2.1(a), each Lender severally agrees that it will participate with the
Agent in the issuance of one or more letters of credit by the Agent on behalf of
the Borrower during the period from and including the date of execution of this
Agreement to, but excluding, the date which is sixty (60) days prior to the
Maturity Date(each a "Letter of Credit"). Letter of Credit Usage shall not at
any time exceed ten percent (10%) of the Loan Amount (the "L/C Commitment
Amount"). All Letters of Credit shall be treated as Advances hereunder and
together with any Principal Advances outstanding at any time shall not in the
aggregate exceed the Loan Amount. A fee equivalent to Koger Equity, Inc.'s then
current Applicable Margin (used in the
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calculation of the applicable LIBOR Interest Rate hereunder) in arrears for all
Letters of Credit will be due and payable at the end of each fiscal quarter of
Koger Equity, Inc., to the Agent for the account of the Lenders. Additionally,
Borrower shall also pay an issuance fee of .125% for each Letter of Credit,
which fee shall be due and payable to the Agent upon issuance thereof.
(c) Terms of Letters of Credit. At the time of issuance, the
amount, form, terms and conditions of each Letter of Credit, and of any drafts
or acceptances thereunder, shall be subject to approval by the Agent and the
Borrower. Notwithstanding the foregoing, in no event may the expiration date of
any Letter of Credit extend beyond the date 30 days prior to the Maturity Date,
and any Letter of Credit containing an automatic renewal provision shall also
contain a provision pursuant to which, notwithstanding any other provisions
thereof, if shall have a final expiration date no later than the date 30 days
prior to the Maturity Date.
(d) Requests for Issuance of Letter of Credit . The Borrower shall
give the Agent written notice (or telephonic notice promptly confirmed in
writing) no later than 9:00 a.m. two (2) Business Days prior to the requested
date of issuance of a Letter of Credit, such notice to describe in reasonable
detail the proposed terms of such Letter of Credit and shall set forth with
respect to such Letter of Credit (i) the proposed initial Stated Amount, (ii)
the beneficiary or beneficiaries, (iii) whether such Letter of Credit is a
commercial or standby letter of credit and (iv) the proposed expiration date.
The Borrower shall also execute and deliver such customary letter of credit
application forms as requested from time to time by the Agent. Provided the
Borrower has given the notice prescribed by this subsection and subject to the
other terms and conditions of this Agreement, including, without limitation, the
satisfaction of any applicable conditions precedent set forth in Article III or
any terms and conditions restricting Advances, the Agent shall issue the
requested Letter of Credit on the requested date of issuance. The Agent shall
promptly provide notice to the Lenders of the issuance of any Letter of Credit
issued hereunder, which notice shall set forth each Lender's Percentage of (1)
such Letter of Credit and (2) all Letters of Credit then outstanding. Upon the
written request of the Borrower, the Agent (x) shall make reasonable efforts to
deliver to the Borrower a copy of any Letter of Credit proposed to be issued
hereunder prior to the issuance thereof and (y) shall deliver to the Borrower a
copy of each issued Letter of Credit within a reasonable time after the date of
issuance thereof. To the extent any term of a Letter of Credit Document is
inconsistent with a term of any Loan Document, the term of such Loan Document
shall control.
(e) Reimbursement Obligations. Upon receipt by the Agent of the
proper documentation for the right to draw from the beneficiary of a Letter of
Credit of any demand for payment under such Letter of Credit, the Agent shall
promptly notify each of the Lenders of the amount of each Lender's Percentage
for such payment. Each Lender shall then promptly pay the Agent its Lender's
Percentage of the Stated Amount of such Letter of Credit in the same manner as
each Lender Percentage of any Advance hereunder is funded. The Agent shall then
pay the Stated Amount of such Letter of Credit to the beneficiary thereof, in
the same manner as all Advances hereunder are funded to the
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Borrower. All of the terms of this Agreement which pertain to the funding of
Advances hereunder shall apply to all Letters of Credit, unless specifically
herein stated to the contrary.
(f) Effect of Letters of Credit on Commitments. Upon the issuance
by the Agent of any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, each Lender Commitment shall be reduced for all
purposes of this Agreement in an amount equal to such Lender's Percentage of the
Stated Amount of such Letter of Credit.
(g) Agent's Duties Regarding Letters of Credit; Unconditional
Nature of Reimbursement Obligation. In examining documents presented in
connection with drawings under Letters of Credit and making payments under such
Letters of Credit against such documents, the Agent shall use the same standard
of care as it uses in connection with examining documents presented in
connection with drawings under letters of credit in which it has not sold
participations and making payments under such letters of credit. The Borrower
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, neither the Agent nor any of
the Lenders shall be responsible for (i) the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by any party in
connection with the application for and issuance of or any drawing honored under
any Letter of Credit even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit, or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of any
Letter of Credit to comply fully with conditions required in order to draw upon
such Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages by others, whether by mail, cable,
telex, telecopy or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay by others in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit, or of the proceeds thereof; (vii) the misapplication
by the beneficiary of any such Letter of Credit, or the proceeds of any drawing
under such Letter of Credit; or (viii) any consequences arising from causes
beyond the control of the Agent or the Lenders. None of the above shall affect,
impair or prevent the vesting of any of the Agent's rights or powers hereunder.
Any action taken or omitted to be taken by the Agent under or in connection with
any Letter of Credit, if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create against the Agent any liability to the
Borrower or any Lender. In this connection, the obligation of the Borrower to
reimburse the Agent for any drawing made under any Letter of Credit shall be
absolute, unconditional and irrevocable and shall be paid strictly in accordance
with the terms of this Agreement under all circumstances whatsoever, including
without limitation, the following circumstances: (A) any lack of validity or
enforceability of any Letter of Credit Document or any term or provisions
therein; (B) any amendment or waiver of or any consent to departure from all or
any of the Letter of Credit Documents; (C) the existence of any claim, set-off,
defense or other right which the Borrower may have at any time
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against the Agent, any Lender, any beneficiary of a Letter of Credit or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby or in the Letter of Credit Documents or any unrelated
transaction; (D) any breach of contract or dispute between the Borrower, the
Agent, any Lender or any other Person; (E) any demand, statement or any other
document presented under a Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein or made in
connection therewith being untrue or inaccurate in any respect whatsoever; (F)
any non-application or misapplication by the beneficiary of a Letter of Credit
of the proceeds of any drawing under such Letter of Credit; (G) payment by the
Agent under the Letter of Credit against presentation of a draft or certificate
which does not strictly comply with the terms of the Letter of Credit; and (H)
any other act, omission to act, delay or circumstance whatsoever that might, but
for the provisions of this Section, constitute a legal or equitable defense to
or discharge of the Borrower's reimbursement obligations.
(h) Amendments, Etc. The issuance by the Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to the
same conditions applicable under this Agreement to the issuance of new Letters
of Credit (including, without limitation, that the request therefor be made
through the Agent), and no such amendment, supplement or other modification
shall be issued unless either (i) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been issued
hereunder in such amended, supplemented or modified form or (ii) the Majority
Lenders shall have consented thereto; provided, however, no such amendment,
supplement or modification shall result in the extension of the expiration date
of the Letter of Credit without the Majority Lenders' prior written consent.
(i) Lenders' Participation in Letters of Credit. Immediately upon
the issuance by the Agent of any Letter of Credit each Lender shall be deemed to
have irrevocably and unconditionally purchased and received from the Agent,
without recourse or warranty, an undivided interest and participation to the
extent of such Lender's Percentage of the liability of the Agent with respect to
such Letter of Credit and each Lender thereby shall absolutely, unconditionally
and irrevocably assume, as primary obligor and not as surety, and shall be
unconditionally obligated to the Agent to pay and discharge when due, such
Lender's Percentage of the Agent's liability under such Letter of Credit.
(j) Information to Lenders. Upon the request of any Lender from
time to time, the Agent shall deliver to such Lender information reasonably
requested by such Lender with respect to any Letter of Credit then outstanding.
Other than as set forth in this subsection or in the preceding subsection (d),
the Agent shall have no duty to notify the Lenders regarding the issuance or
other matters regarding Letters of Credit issued hereunder. The failure of the
Agent to perform its requirements under this subsection or such subsection (d)
shall not relieve any Lender from any of its obligations hereunder.
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SECTION 2.2 Making Advances.
(a) Each Advance shall be made (or continued for an additional
Interest Period, if applicable), following a Notice of Borrowing received by
Agent not later than 2:00 P.M. (Eastern Standard Time) on (i) in the case of a
LIBOR Advance, the 4th Business Day prior to, or (ii) in the case of a Base Rate
Advance, the 2nd Business Day prior to, the requested Funding Date (which
requested Funding Date must be a Business Day); provided, however, that:
(1) if Borrower fails to elect any particular interest
rate, or if the requested Funding Date is less than 4 Business Days
following such Notice of Borrowing, Borrower shall be deemed to have
elected the Base Rate; and
(2) Borrower shall have delivered to Agent the statements
referred to in Section 3.1(c) prior to or concurrently with the
applicable Notice of Borrowing described above.
(b) Each Notice of Borrowing shall be irrevocable and binding on
Borrower. Following any Notice of Borrowing, Borrower indemnifies and agrees to
hold the Lenders harmless from and against any loss, cost or expense incurred by
the Lenders as a result of any failure by Borrower to complete the borrowing
specified in such Notice of Borrowing (whether or not due to a failure to
fulfill on or before the date specified in such Notice of Borrowing the
applicable conditions set forth in Article III), such losses, costs and expenses
to include, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by the Lenders to fund the Advance, when
such Advance, as a result of such failure, is not made on the date requested for
such Advance.
(c) Subject to fulfillment of the applicable conditions set forth
in this Article II and Article III below, each Lender will make available its
Lender's Percentage of the Advance not later than 12:00 P.M. (Eastern Standard
Time) in the amount and on the Funding Date requested for such Advance in
same-day funds to the Agent at Agent's office at 301 South College Street,
Charlotte, North Carolina, by wire transfer of such Advance for the account of
Borrower. The Agent shall then make the Advance to the Borrower not later than
2:00 P.M. (Eastern Standard Time) in the amount and on the Funding Date
requested for such Advance in same day funds by intra-bank transfer to
Borrower's account maintained at FUNB, or by wire transfer to such other account
as Borrower shall so direct by written notice to FUNB.
(d) LIBOR Advances shall be subject to the following additional
conditions:
(1) if, at any time, (A) a Lender shall determine that,
by reasons of circumstances affecting foreign exchange and interbank
markets generally, LIBOR deposits in the applicable amounts are not
being offered to the Lender, or (B) the introduction of or any change
in or in the interpretation (including reversals) of any law or
regulation makes it unlawful, or any central bank or governmental
authority asserts that it is unlawful, for any Lender to obtain funds
in the London interbank
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market to fund or maintain a LIBOR Advance or otherwise to perform its
obligations hereunder with respect to any such Advance, then such
Lender's obligation to make or maintain any LIBOR Advance, and the
right of Borrower to select any LIBOR Interest Rate, shall be suspended
until the circumstances causing such suspension no longer exist, and
the applicable LIBOR Interest Rate for any outstanding LIBOR Advance
shall immediately be converted to the Base Rate for such LIBOR Advance
for the remainder of the Interest Period;
(2) LIBOR Advances may be repaid or prepaid only on the
last Business Day of the Interest Period applicable to such Advance.
Borrower may elect to maintain any outstanding LIBOR Advance for an
additional Interest Period by delivering a Notice of Borrowing to Agent
making such election within the time period required for such notices
as set forth in this Section 2.2. If any LIBOR Advance is not repaid or
prepaid on the last Business Day of the Interest Period, and Borrower
has not otherwise timely delivered a Notice of Borrowing electing to
continue such LIBOR Advance for an additional Interest Period elected
by Borrower in such Notice of Borrowing, Borrower will be deemed to
have elected to maintain such Advance outstanding as a Base Rate
Advance. If, as a result of a payment made by Borrower due to
acceleration of the maturity of the Notes pursuant to Section 8.2 or
due to any other reason, the Lenders receive payment of any principal
amount of any LIBOR Advance on a day other than the last day of the
Interest Period for such LIBOR Advance, or Borrower fails to make any
payment of principal outstanding under any LIBOR Advance when due under
the Notes, Borrower shall pay to Agent on demand that amount, if any,
required to compensate the Lenders, as reasonably calculated by each
Lender, for additional losses, costs or expenses which the Lenders may
incur as a result of such payment or nonpayment, including, without
limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by the Lenders to fund or maintain
such LIBOR Advance.
SECTION 2.3 Swing Line Advances.
(a) Swing Line Loans. Subject to the terms and conditions hereof,
the Swing Line Bank agrees to make Swing Line Advances to Borrower from the date
hereof to the Business Day preceding the Maturity Date in an aggregate principal
amount at any one time outstanding up to, but not exceeding, the amount of the
Maximum Swing Line Commitment. If at any time the aggregate principal amount of
the Swing Line Borrowings outstanding at such time exceeds the Maximum Swing
Line Commitment in effect at such time, Borrower shall immediately pay the Swing
Line Bank the amount of such excess. Subject to the terms and conditions of this
Agreement, Borrower may borrow, repay and reborrow Swing Line Advances
hereunder. Swing Line Borrowing shall not constitute usage of any Lender's
Commitment, except from the Swing Line Bank.
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(b) Procedure for Borrowing Swing Line Loans. The Borrower shall
give the Agent and the Swing Line Bank notice pursuant to a Notice of Swing Line
Borrowing in the form shown on attached Exhibit C (a "Notice of Swing Line
Borrowing") delivered to the Swing Line Bank no later than 9:00 a.m. on the
proposed date of such borrowing, provided that Borrower shall have given
telephonic notice to the Swing Line Bank no later than 9:00 a.m. of the proposed
date of borrowing. Any such telephonic notice shall include all information to
be specified in a written Notice of Swing Line Borrowing. Not later than 11:00
a.m. on the date of the requested Swing Line Advance and subject to satisfaction
of the applicable conditions set forth in Article III, for all Advances
hereunder, the Swing Line Bank will make the proceeds of such Swing Line Advance
available to Borrower, in immediately available funds, at the account specified
by Borrower in the Notice of Swing Line Borrowing.
(c) Interest. All Swing Line Borrowings shall bear interest at a
per annum rate equal to (i) the Base Rate as in effect from time to time, or
(ii) at such other rate or rates as Borrower and the Swing Line Bank may agree
from time to time in writing. Interest payable on Swing Line Borrowings is
solely for the account of the Swing Line Bank. All accrued and unpaid interest
on Swing Line Borrowings shall be payable on the dates and in the manner
provided in Section 2.5, with respect to interest on Base Rate Advances (except
as the Swing Line Bank and Borrower may otherwise agree in writing in connection
with any particular Swing Line Advance).
(d) Swing Line Borrowing Amounts, Etc. Each Swing Line Borrowing
shall be in the minimum amount of $500,000 and integral multiples of $100,000 in
excess thereof or such other minimum amounts agreed to by the Swing Line Bank
and Borrower. Any voluntary prepayment of a Swing Line Borrowing must be in
integral multiples of $100,000 or the aggregate principal amount of all
outstanding Swing Line Borrowings (or such other minimum amounts upon which the
Swing Line Bank and Borrower may agree) and in connection with any such
prepayment, Borrower must give the Swing Line Bank prior written notice thereof
no later than 10:00 a.m. one Business Day prior to the date of such prepayment.
The Swing Line Borrowing shall, in addition to this Agreement, be evidenced by
the Swing Line Note.
(e) Repayment and Participations of Swing Line Borrowing. The
Borrower agrees to repay each Swing Line Advance within one Business Day of
demand therefor by the Swing Line Bank and in any event, within five (5)
Business Days after the date such Swing Line Advance was made. Notwithstanding
the foregoing, Borrower shall repay the entire outstanding principal amount of,
and all accrued but unpaid interest on, all Swing Line Borrowings on the
Maturity Date (or such earlier date as the Swing Line Bank and Borrower may
agree in writing). In lieu of demanding from Borrower repayment of any
outstanding Swing Line Borrowings, the Swing Line Bank may, on behalf of
Borrower (which hereby irrevocably directs the Swing Line Bank to act on its
behalf), request a borrowing of a Base Rate Advance from the Lenders in an
amount equal to the principal balance of such Swing Line Borrowing. Each Lender
will make available to the Agent for the account of the Swing Line Bank, in
immediately available funds not later than 9:00 a.m.
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on the proposed date of such borrowing, the proceeds of the Base Rate Advance to
be made by such Lender, in the amount of each Lender's Percentage of such Base
Rate Advance. The Agent shall apply such proceeds to repay such Swing Line
Borrowing. If the Lenders are prohibited from making Advances required to be
made under this subsection for any reason whatsoever, including without
limitation, the occurrence of any of the Defaults or Events of Default described
in Section 8.1, each Lender shall purchase from the Swing Line Bank, without
recourse or warranty, an undivided interest and participation to the extent of
such Lender's Percentage of such Swing Line Borrowing, by directly purchasing a
participation in such Swing Line Borrowing in such amount and paying the
proceeds thereof to the Swing Line Bank in immediately available funds. A
Lender's obligation to purchase such a participation in a Swing Line Borrowing
shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including without limitation, (i) any claim of setoff,
counterclaim, recoupment, defense or other right which such lender or any other
Person may have or claim against the Agent, the Swing Line Bank or any other
Person whatsoever, (ii) the occurrence or continuation of a Default or Event of
Default (including without limitation, any of the Defaults or Events of Default
described in Section 8.1 or the termination of any Lender's Commitment, (iii)
any breach of any Loan Document by the Agent, any Lender or Borrower or (iv) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing. If any Lender shall fail to make available to the Swing Line
Bank the purchase price of any such participation, the Swing Line Bank shall be
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof, at the
Base Rate. If such Lender does not pay such amount forthwith upon the Swing Line
Bank's demand therefor, and until such time as such Lender makes the required
payment, the Swing Line Bank shall be deemed to continue to have outstanding
Swing Line Advances in the amount of such unpaid participation obligation for
all purposes of the Loan Documents (other than those provisions requiring the
other Lenders to purchase a participation therein). Further, such Lender shall
be deemed to have assigned any and all payments made of principal and interest
on its Advances, and any other amounts due to it hereunder, to the Swing Line
Bank to fund Swing Line Borrowings in the amount of the participation in Swing
Line Borrowings that such Lender failed to purchase pursuant to this Section
until such amount has been purchased (as a result of such assignment or
otherwise). All payments of principal, interest, fees and other amounts in
respect of the Swing Line Borrowings shall be for the account of the Swing Line
Bank only (except to the extent any Lender shall have acquired a participating
interest in any such Swing Line Borrowings pursuant to this subsection).
SECTION 2.4 Fees.
(a) After the Closing Date, in consideration for the Lenders'
reservation of funds for availability for borrowing under the Loan, Borrower
shall pay the Unused Fee to the Agent for the Lenders in arrears at the end of
each calendar quarter.
(b) In consideration of the Lenders' issuance of Letters of Credit
hereunder, Borrower shall pay to Agent for the account of the Lenders, in
arrears, at the end of each
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fiscal quarter of Koger Equity, Inc., a fee equivalent to Koger Equity, Inc.'s
then current Applicable Margin multiplied by the aggregate Stated Amount of all
outstanding Letters of Credit.
(c) Borrower shall pay Agent, for the account of Agent only, an
issuance fee of .125% for each Letter of Credit, which fee shall be due and
payable to the Agent upon issuance thereof.
SECTION 2.5 Repayment of Advances; Prepayments.
(a) Interest only, computed daily on the outstanding principal
balance of the Loan, shall be due monthly on the 10th day of each calendar month
for the preceding calendar month, and shall be paid to Agent. On the Maturity
Date, the entire outstanding principal balance of the Loan, together with all
accrued and unpaid interest thereon, and late fees and other charges, if any,
payable by Borrower under the Loan Documents, shall be due and payable in full,
and shall be paid to Agent. Any payment of interest which is not made within 10
days following its due date or such longer period as may be required under
applicable laws of any State if the laws of such State are determined to govern
this Agreement, shall be subject to a Late Charge, which shall be due and
payable contemporaneously with such payment of interest.
(b) During the Loan Term, the Loan Amount may be borrowed, repaid
and reborrowed on a revolving basis, provided, that prior to the Maturity Date,
the outstanding principal balance of the Loan shall never be less than $1,000.00
nor greater than the maximum principal amount permitted to be borrowed under the
Loan pursuant to the Financial Covenants. Each prepayment of any of the
outstanding principal amount shall be in a minimum amount of $1,000,000 and
integral multiples of $500,000 thereafter. Repayments of the outstanding
principal amount of any Advance may be made on any Business Day, provided, that
repayments received after 11:00 A.M. (Eastern Standard Time) shall not be
credited to Borrower's account until the next Business Day, and further
provided, unless Borrower prior to or contemporaneously with such repayment
designates in writing to Agent the Advance that should be credited with such
repayment, such repayment shall be applied to repayment of Advances on a
"first-borrowed first-repaid" basis. Repayment of any LIBOR Advance on any day
other than the maturity of the Interest Period applicable to such LIBOR Advance
may be subject to a charge pursuant to Section 2.2(d), payable by Borrower to
Agent at the time of such repayment. Repayment of any Base Rate Advance may be
repaid without penalty or premium.
(c) If the Agent receives a payment of interest or a prepayment of
principal for the account of the other Lenders prior to 11:00 A.M. (Eastern
Standard Time) on any Business Day, a pro rata portion of such payment must be
delivered to each other Lender based upon each Lender's Percentage in the
Advances made to date. If a payment of principal or interest is not received by
Agent until after 11:00 A.M. (Eastern Standard Time) on any Business Day, the
payment of each Lender's Percentage share of such payment shall be delivered to
the Lenders and credited to the Borrower on the next Business Day.
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If a payment of principal or interest is received by the Agent between 11:00
A.M. (Eastern Standard Time) and 2:00 P.M. (Eastern Standard Time) on any
Business Day, in the event any Lender's Percentage share of such payment is not
paid to such Lender until the next Business Day, then Agent shall pay such
Lender interest at the Federal Funds Rate on such Lender's Percentage of the
payment for such day.
(d) Except to the extent otherwise provided herein: (a) each
borrowing from the Lenders under Section 2.1 hereof shall be made ratably from
the Lenders on the basis of their respective Lender Percentages; and (b) each
payment by the Borrower of principal or interest on the Loan or on any other
sums advanced by the Lenders pursuant to the Loan Documents, and of any other
amount owed to the Lenders shall be made to the Agent for the account of the
Lenders based upon each Lender's Percentage in the respective unpaid principal
amounts of the Loans held by the Lenders.
(e) Unless the Agent shall have been notified by a Lender or the
Borrower (the "Payor") prior to the date on which such Lender is to make payment
to the Agent of the proceeds of an Advance to be made by it hereunder or the
Borrower is to make a payment to the Agent for the account of one or more of the
Lenders, as the case may be (such payment being herein called the "Required
Payment"), which notice shall be effective upon receipt, that the Payor does not
intend to make the Required Payment to the Agent, the Agent may assume that the
Required Payment has been made and may, in reliance upon such assumption (but
shall not be required to), make the amount thereof available to the intended
recipient on such date and, if the Payor has not in fact made the Required
Payment to the Agent, the recipient of such payment shall, on demand, pay to the
Agent the amount made available by the Agent together with interest thereon in
respect of the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal to (a) the Default Rate for such period if the recipient returning a
Required Payment is the Borrower, or (b) the Federal Funds Rate for such period
if the recipient returning a Required Payment is the Agent or a Lender.
(f) The Borrower agrees that, in addition to (and without
limitation of) any right of set-off, bankers' lien or counterclaim a Lender may
otherwise have, each Lender shall be entitled, at its option (and without regard
to the adequacy of other collateral) to offset balances held by it for the
account of the Borrower at any of its offices, against any principal of or
interest on any of such Lender's Advances to the Borrower hereunder, or other
Obligations of the Borrower hereunder, which is not paid (regardless of whether
such balances are then due to the Borrower), in which case it shall promptly
notify the Borrower and the Agent thereof, provided that such Lender's failure
to give such notice shall not affect the validity thereof. If a Lender shall
obtain payment of any principal of or interest on any Advance made by it under
this Agreement then due to such Lender hereunder, through the exercise of any
right of set-off, banker's lien, counterclaim or similar right, or otherwise it
shall promptly purchase from the other Lenders portions of the Advances made or
other Obligations held by the other Lenders in such amounts, and make such other
adjustments from time to time as shall be equitable to the end that all the
Lenders
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shall share the benefit of such payment (net of any expenses which may be
incurred by such Lender in obtaining or preserving such benefit) in accordance
with each Lender's Percentage. To such end all the Lenders shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored.
Nothing contained herein shall require any Lender to exercise any such right or
shall affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness or Obligation
of the Borrower.
SECTION 2.6 Interest Rate; Default Rate.
(a) The amount of each Advance shall accrue interest, at
Borrower's election, at a LIBOR Interest Rate or the Base Rate. Borrower shall
be entitled to elect the applicable LIBOR Interest Rate (which interest rate
will vary based on Interest Period selection and the Borrower's Leverage at the
time of any Advance) or the Base Rate for any Advance under and subject to the
conditions set forth in Section 2.2, provided that not more than 5 separate
LIBOR Interest Rates (which interest rates will vary based on Interest Period
selection and the Borrower's Leverage at the time of any Advance) and the Base
Rate, shall be applicable to Advances at any one time that such Advances are
outstanding.
(b) Following an Event of Default, the amount of each Advance
shall, at the Lenders' option, without notice to Borrower accrue interest from
the date of Default at the Default Rate.
SECTION 2.7 Payments and Computations. Borrower shall make each
payment under any Loan Document not later than 11:00 A.M. (Eastern Standard
Time) on the day when due in lawful money of the United States of America to
Agent, at 301 South College Street, Charlotte, North Carolina 28288 in
immediately available funds. All computations of interest under the Notes and
hereunder, other than the computation of interest at the Base Rate, shall be
made by the Lenders on the basis of a year of 360 days, and all computations of
interest at the Base Rate shall be made by the Lenders on the basis of a year of
365 or 366 days, as the case may be, for the actual number of days (including
the first day but excluding the last day) occurring in the period for which such
interest is payable. Whenever any payment to be made hereunder or under the
Notes shall be stated to be due on a day other than a Business Day, such payment
may be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest.
SECTION 2.8 Evidence of Indebtedness. The indebtedness of
Borrower resulting from all Advances made from time to time shall be evidenced
by the Notes.
SECTION 2.9 Prior LIBOR Advances. Effective as of the Closing
Date the outstanding principal balance of all prior LIBOR Advances made under
and pursuant to the terms and conditions of the Prior Loan Agreement shall
convert to the LIBOR Interest Rate applicable as of the Closing Date (which
interest rate will be based on Borrower's Interest
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Period selection and the Borrower's Leverage on the Closing Date). Borrower
shall not be responsible for any fees, charges, or other costs set forth in
Section 2.2 associated with such LIBOR Interest Rate change.
SECTION 2.10 Advances Under Prior Loan Agreement. Advances made by
any of the Lenders under the Prior Loan Agreement (the "Prior Advances") shall
be subject to the covenants, terms and conditions of this Agreement from and
after the Closing Date. Each of the Lenders, by execution of this Agreement,
commits to extend its Lender's Percentage of the Prior Advances as of 5:00 p.m.
on the Closing Date. Each of the Lenders shall pay the Agent its Lender's
Percentage of the outstanding principal balance of all Prior Advances as of the
Closing Date. The Agent shall then pay each Lender under the Prior Loan
Agreement such funds as are allocable to each such Lender under the Prior Loan
Agreement as its proportionate share of such prior Advances. Thereafter, all
Advances, whether made under the Prior Loan Agreement or under this Agreement,
shall be administered in the same manner, according to each Lender's Percentage.
SECTION 2.11 Increase to Loan Amount. Provided that no Event of
Default has occurred, the Borrower may upon sixty (60) Business Days prior
written notice to the Agent, request the Loan Amount be increased to
$200,000,000. Together with any such request the Borrower shall include (i) a
certificate of an officer of the Borrower certifying that there has been no
material adverse change in the financial position of the Borrower or in its
compliance with the Financial Covenants since the date of its most recent
Borrowing Compliance Certificate and further certifying that no Event of Default
or event which, with the passage of time or the giving of notice or both, would
constitute an Event of Default has occurred, (ii) the increased Loan Amount
shall not exceed sixty percent (60%) of the Borrowing Base Value, and (iii) such
other information, documentation or opinions as the Agent may reasonably
request. The Agent shall promptly forward Borrower's request to each of the
Lenders prior to seeking the participation of any other Lender. No Lender shall
be required to increase its Lender Commitment unless expressly agreed to in
writing, but the Agent, any Lender hereunder, or any other lender may increase
its Lender Commitment by an amount necessary to comply with the Borrower's
request. If the Agent is willing to increase its own Lender Commitment or is
able to secure increased Lender Commitments in an aggregate amount of
$200,000,000, then Agent shall notify the Borrower that its request to increase
the Loan Amount has been obtained. Thereafter, Borrower may obtain Advances up
to $200,000,000 in accordance with the terms and provisions of this Agreement.
If the Agent is unwilling to increase its Lender Commitment or is unable to
secure increased Lender Commitments in an aggregate amount of $200,000,000 then
Agent shall notify the Borrower that its request to increase the Loan Amount has
been denied. If, by the end of such sixty (60) Business Day period, the Company
shall not have received a written approval or rejection of such request, such
request shall be deemed to have been denied.
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ARTICLE III
CONDITIONS OF LENDING AND FINANCIAL COVENANTS
SECTION 3.1 Conditions Precedent to Advances and Financial
Covenants. The obligation of the Lenders to make each Advance shall be subject
to the conditions precedent that on the date of any Notice of Borrowing
requesting an Advance and on the Funding Date:
(a) Borrower shall, at all times, be in compliance with the
following financial covenants (the "Financial Covenants"):
(i) Koger Equity, Inc.'s status as a REIT shall
be continuing, and Koger Equity, Inc. shall continue to be listed as a
publicly traded company on a nationally recognized stock exchange.
(ii) The outstanding principal balance of the
Loan shall not exceed sixty percent (60.00%) (the "Advance Rate") of
the Borrowing Base Value at any time. The Lenders shall not make any
Advance unless Borrower shall have pledged and/or mortgaged Collateral
with a sufficient Borrowing Base Value to ensure compliance with the
Advance Rate. The Borrowing Base Value, and the related limitation on
the outstanding principal balance of the Loan, shall be recalculated by
the Agent not less frequently than quarterly using the actual Adjusted
Net Operating Income (calculated on the most recent quarter ended)
generated from the Collateral and the Capitalization Rate to determine
borrowing availability. Changes to the Capitalization Rate and the
Advance Rate require the unanimous consent of all of the Lenders and
the Borrower.
(iii) As of the end of the most recent fiscal
quarter, Adjusted Net Operating Income for such quarter derived from
the Collateral (after deducting therefrom appropriate management costs
relating to the Collateral), shall be at least 1.50 times Mortgage Debt
Service for such quarter attributable to the Loan (the "Cash Flow
Requirement"). Provided no Default or Event of Default is then existing
under the Loan, and Adjusted Net Operating Income shall not have fallen
below an amount which is 1.35 times the Mortgage Debt Service, as
calculated according to the preceding sentence, Borrower shall have
thirty (30) days to correct an insufficient Cash Flow Requirement by
mortgaging or pledging additional Collateral, acceptable to the
Majority Lenders, to the Borrowing Base or reducing the principal
balance of the Loan then outstanding.
(iv) At all times and calculated as of the last
day of each fiscal quarter, the ratio of (x) Adjusted EBITDA to (y)
Interest Expense (whether accrued, paid or capitalized) for the
previous four consecutive quarters including the quarter then ended,
will not be less than 2.00 to 1.00.
(v) At all times and calculated as of the last
day of each fiscal quarter, the ratio of (x) Adjusted EBITDA to (y)
Fixed Charges for the previous four consecutive quarters including the
quarter then ended, will not be less than 1.70 to 1.00.
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(vi) Total Debt shall not, at any time, exceed
55% of Gross Asset Value.
(vii) Shareholder's Equity shall at all times be
equal to at least $450,000,000 plus seventy-five percent (75%) of all
net proceeds from future equity offerings plus one hundred percent
(100%) of the value generated by the issuance of operating partnership
units.
(viii) Development in Progress shall not at any
time exceed fifteen percent (15%) of Gross Asset Value.
(ix) As of the end of the most recent fiscal
quarter, the percentage of distributions or dividends paid to
shareholders paid from Funds from Operations, calculated on a rolling
four quarter basis, shall not exceed ninety percent (90%) unless
required to maintain Koger Equity, Inc.'s REIT status.
(x) As of the end of each fiscal quarter,
distributions or dividends paid to shareholders, calculated on a
rolling four (4) quarter basis, shall not exceed one hundred percent
(100%) of Cash Available for Distribution. Notwithstanding the
foregoing, Koger Equity, Inc. may distribute or dividend that amount
which shall be required to maintain Koger Equity, Inc.'s REIT status.
(xi) At all times, the Borrower's total
investments in items (a) through (d) below shall be restricted as
follows (the "Permitted Investments"):
(a) Investments in partnerships, joint ventures,
and other non-corporate entities (except for any Special
Purpose Entities formed in accordance with the terms of
Section 13.12) accounted for on an equity basis shall not
exceed ten percent (10%) of Gross Asset Value;
(b) Investments in non-office operating
Properties, and other investments permitted under the
Borrower's organizational documents shall not exceed ten
percent (10%) of Gross Asset Value;
(c) Investments in Undeveloped Land shall not
exceed seven and one-half percent (7.5%) of Gross Asset Value;
and
(d) Investments in mortgages shall not exceed
five percent (5%) of Gross Asset Value.
The Borrower's total Permitted Investments in items (a) through (d) above shall
not exceed, in the aggregate, twenty percent (20%) of Gross Asset Value. At all
times, at least eighty-five percent (85%) of the Borrower's Gross Asset Value
must consist of assets owned by the Borrower or an SPE or of investments in a
Guarantor of the Loan.
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(xii) Borrower's Unhedged Variable Rate Debt shall
not exceed twenty percent (20%) of Gross Asset Value.
(b) As of the requested Funding Date, Borrower shall have
satisfied, and shall be in continuing compliance with, all of the terms,
covenants and conditions required to be satisfied as a condition precedent to
any Advance, and shall be in continuing compliance with all of the terms,
covenants and conditions of the Loan Documents, and no Default or Event of
Default shall then exist or be continuing.
(c) The following statements shall be true and, concurrently with
delivery of the Notice of Borrowing for such Advance, the Agent shall have
received a certificate, substantially in the form attached as Exhibit J (the
"Borrowing Compliance Certificate"), signed by a duly authorized officer of
Borrower, dated the Funding Date, stating that:
(i) The representations and warranties contained
in Section 6.1 are correct on and as of the Funding Date, before and
after giving effect to such Advance and to the application of proceeds
therefrom, as though made on and as of such date,
(ii) No event or condition has occurred or is
continuing, or would result from such Advance or from the application
of proceeds therefrom, which constitutes a Default or Event of Default,
and
(iii) Borrower is in compliance with each of the
Financial Covenants before and after giving effect to such Advance and
to the application of proceeds therefrom.
SECTION 3.2 Conditions Precedent to Certain Advances. The
obligation of the Lenders to make any Advance that, but for the addition of
Collateral pursuant to Section 4.3, would cause the principal balance of the
Loan to exceed the maximum borrowing limits determined in accordance with the
Financial Covenants, shall be subject to the further conditions precedent that
on the date of the Notice of Borrowing requesting such Advance and on the
Funding Date, Borrower shall have executed and delivered the Loan Documents, or
modifications thereof, relating to the addition of such Collateral, as the
Lenders reasonably may request to carry out the provisions and intent of this
Agreement, all in form and content acceptable to the Lenders in their sole
discretion, and shall have satisfied the conditions and requirements set forth
in Article IV.
SECTION 3.3 Eligible Borrowing Base. Any Property owned by
Borrower must meet the following eligibility parameters to be included in the
Borrowing Base and accepted as Collateral:
(a) No liens (other than the lien of a Security Deed or lien
arising pursuant to any other Loan Document) may encumber or be placed on any
part of the real property assets;
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(b) The Borrower shall have fee simple title to all of the
Property;
(c) The Property must be utilized by Borrower as an office
Property, except for the Property commonly known as "The Shops at the Colonnade"
located in Birmingham, Alabama, which Property is currently used for retail
purposes.
(d) To be included as Collateral, each office property not
included within a Koger Business Park and all of those Properties which together
comprise an entire Business Park must be at least eighty percent (80%) occupied
by tenants under leases complying with the requirements of this Agreement and
paying current market Rents. For purposes of this test, "Business Park" means
any one or more contiguous buildings, together with all associated parking,
improvements and other appurtenances thereto which together function as a
cohesive office park sharing common areas, parking, appearance, and design.
(e) The environmental condition of the Property must be acceptable
to each of the Lenders, and the Lenders shall have reviewed and approved the
Phase I environmental site assessment for the Property, any required asbestos
study, and a properly executed Indemnification Agreement as to the Property;
(f) No one Market, other than the Atlanta Market, may account for
more than thirty percent (30%) of the Borrowing Base Value. For the purposes of
this covenant, "Market" shall be defined as Standard Metropolitan Statistical
Area commonly known as "SMSA". No new Properties may be acquired, substituted or
otherwise added in the Atlanta Market which would cause the Atlanta Market to
exceed thirty percent (30%) of the Borrowing Base Value.
(g) Borrower shall have submitted to each of the Lenders a
complete Due Diligence Package containing all of the documents and materials
required hereunder and also including any additional due diligence materials
reasonably requested by Lender for each Borrowing Base Property to be included
in the Collateral; and
(h) The Majority Lenders shall have approved the Due Diligence
Package for each Borrowing Base Property to be included in the Collateral.
ARTICLE IV
ADDITION, SUBSTITUTION AND RELEASE OF COLLATERAL
SECTION 4.1 General Right to Add, Substitute or Release
Collateral. Subject to the written approval of the Majority Lenders, Borrower
may elect, at any time during the Loan Term, to cause the addition, substitution
or release of Collateral, subject, however, to Borrower's continuing compliance
with the Financial Covenants and with the requirements of this Article IV;
provided, that the Lenders reserve the right to exclude from the Collateral any
particular office building or property that Borrower requests for addition
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to Collateral based on sub-standard occupancy, location, operating history, age,
condition, or environmental concerns, in the Lenders' sole discretion, and
further provided, that Borrower shall not have the right to cause the addition,
substitution or release of Collateral if a Default or Event of Default exists
and is continuing. In support of any request for release, substitution or
addition of Collateral, Borrower shall submit to Agent:
(i) a certification, in form and content acceptable to the Lenders
in their sole discretion, prepared by management and certified by the
chief financial officer or chief accounting officer of Borrower,
certifying to the Lenders that, after such proposed release,
substitution or addition of office buildings, Borrower will be in
compliance with the Financial Covenants;
(ii) the information or documentation required to be executed
and/or delivered to the Lenders as set forth in this Agreement,
including, without limitation, modifications or partial releases of the
Loan Documents (or delivery of additional Loan Documents in form and
content satisfactory to Lenders and consistent with the requirements of
this Agreement) as necessary or appropriate to properly reflect the
release, substitution or addition of Collateral in the discretion of
the Lenders and the Lenders' Counsel, compliance with all of the
Borrowing Base eligibility requirements set forth in Section 3.3
hereof, and the documentation as set forth in the Summary Requirements
as to the office buildings proposed to be substituted for or added to
the Collateral, as applicable; and
(iii) evidence satisfactory to the Lenders that such additional
Collateral, or the remaining Collateral after substitution or release
of other Collateral, has adequate and legal rights of ingress and
egress, drainage and utilities, and, if necessary or appropriate,
Borrower shall deliver to and in favor of the Lenders, their respective
successors and assigns, such perpetual non-exclusive easements as the
Lenders may reasonably request to create such adequate and legal rights
of ingress and egress, drainage or utilities. With respect to easements
for ingress and egress, drainage or utilities that reasonably may be
required over, under or across the released Collateral as a result of
the release of such Collateral, the Lenders may establish such easement
or easements at the time of such release pursuant to a Quit Claim Deed
with Reservations and Grants of Easements in substantially the form
attached as Exhibit I (the "Release Deed"), with modifications as
appropriate for the particular circumstances of such release, and the
nature of the easement or easements required, to comply with the laws
of any State. Similarly, if as a result of any such release, the
released Collateral reasonably may require easements for ingress and
egress, drainage or utilities over, under or across any portion of the
remaining Collateral, then at Borrower's request, the Lenders shall,
subject to the remaining provisions of this Article IV below, cause
such release to be made using the form of Release Deed, with
modifications as appropriate for the particular circumstances of such
release and the nature of the easement or easements required.
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The Lenders' decision whether to accept Borrower's request for
substitution, addition or release of Collateral shall be based on Borrower's
satisfaction of the foregoing requirements, delivery and approval of the Due
Diligence Package, and on the documentation and information delivered to the
Lenders in compliance with Section 3.3 and any other provisions of this
Agreement and the Summary Requirements, and on a determination by the Lenders,
in their sole and absolute discretion, that there has been no material adverse
change in the financial condition of Borrower, and that all other aspects of the
Property to be added or substituted, as applicable, including without
limitation, the general condition of such Property and vacancy rates of the
local commercial leasing market, are substantially similar to the existing
Collateral, or, if applicable, to the Collateral to be released for substitution
by new Property, subject to the Lenders' discretion.
SECTION 4.2 Requirements for Release of Collateral. In addition
to the general conditions and requirements for release of Collateral as set
forth in Section 4.1, the following conditions and requirements shall be
satisfied prior to the release of any Collateral:
(a) If the Property proposed for release from the Collateral is
not the exclusive subject matter of a boundary survey on file with the Lenders
showing the Collateral, then, not later than 15 days prior to the Collateral
Change Date for such release, Borrower shall deliver to Agent a current boundary
survey of the Property proposed for release from the Collateral, and a current
boundary survey of the remaining Collateral if the existing boundary survey of
the Collateral is affected by the release of such Property from the Collateral.
Each such survey shall meet or exceed the Minimum Standards and Supplementary
Requirements set forth on attached Exhibit D. Each survey shall be subject to
review and approval by the Lenders, the Lenders' Counsel, and Title Insurer;
(b) No release of any Collateral will be permitted if the release
of such Collateral would violate the Market restrictions set forth in Section
3.3(f); and
(c) The Borrowing Base Value of the remaining Collateral shall not
be less than $100,000,000.00 after the release of any Collateral hereunder.
SECTION 4.3 Requirements for Addition or Substitution of
Collateral. In addition to the general conditions and requirements for addition
or substitution of Collateral as set forth in Section 4.1, the following
conditions and requirements shall be satisfied prior to the addition or
substitution of any Collateral:
(a) Prior to any Collateral Change Date, the Lenders shall have
ordered at Borrower's expense and received a current Appraisal of the Property
to be added to the Collateral as additional Collateral or in substitution of
existing Collateral. Following the Lenders' receipt of such Appraisal
satisfactory to the Lenders, the Lenders will provide a copy of such Appraisal
to Borrower. Such Appraisals shall be utilized by the Lenders for informational
purposes, and shall be subject to review and approval by the Lenders.
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(b) Not later than 30 days prior to any Collateral Change Date,
Borrower shall deliver to the Agent and the Agent's Counsel a commitment or
binder for an endorsement to the existing title insurance policy (if the
Property to be added to the Collateral is located in the same State as the
existing Collateral) or for a new title insurance policy (if the Property to be
added to the Collateral is not located in the same State as the existing
Collateral or is located in the State of Texas) issued by Title Insurer,
committing to insure the Lenders' first security or title interest in the
Property to be added to the Collateral as additional Collateral or in
substitution of existing Collateral (as legally described to include any
easements benefitting such real property), meeting or exceeding the Minimum
Title Standards set forth on attached Exhibit E (the "Title Commitment"). The
Title Commitment shall contain only those matters expressly approved by the
Lenders, and shall include complete copies of all listed title exceptions. All
title exceptions are subject to the Lenders' review and approval, and any liens
of prior mortgagees or creditors shall be satisfied or released on or before the
Collateral Change Date. On the Collateral Change Date, Borrower shall cause
Title Insurer to deliver its marked original Title Commitment indicating the
proper satisfaction of all conditions to issuance of a title insurance policy or
endorsement thereof, as the case may be, insuring the Lenders, its successors
and assigns as their interests may appear, based on such Title Commitment
subject only to those matters and exceptions to coverage as set forth in the
Title Commitment as previously may have been approved by the Lenders.
(c) Not later than 30 days prior to any Collateral Change Date,
Borrower shall deliver to the Agent and the Agent's Counsel six (6) copies (or a
greater number in the event additional Lenders are added to the Loan) of a
current boundary survey (or recertified boundary survey, provided that the same
is, in the discretion of Title Insurer, sufficient to permit Title Insurer to
remove the standard survey exceptions) for the Property to be added to the
Collateral, meeting or exceeding the Minimum Standards and Supplementary
Requirements set forth on attached Exhibit D. Each survey shall be subject to
review and approval by the Lenders, the Lenders' Counsel, and Title Insurer.
Surveys for buildings within single office parks shall be accompanied by a site
map showing the relative location of each building within such office park.
(d) Not later than 30 days prior to any Collateral Change Date,
Borrower shall deliver to the Agent a current UCC-11 search for Florida and each
State or local jurisdiction (if applicable) in which the Property to be added to
the Collateral is located, evidencing to the Lenders' satisfaction that such
additional Property is free and clear of any liens or perfected security
interests prior to the Lenders' security interest therein. On or before the
Collateral Change Date, Borrower shall deliver to the Agent UCC-1 Financing
Statements for filing in Florida and each State or local jurisdiction (if
applicable) in which the Property to be added to the Collateral is located,
perfecting the Lenders' first lien and security interest in the additional
Property as Collateral.
(e) Not later than 30 days prior to any Collateral Change Date,
Borrower shall deliver to the Agent six (6) copies (or a greater number in the
event additional Lenders are added to the Loan) of a current environmental site
assessment of each Property to be
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added to the Collateral certified to the Lenders, meeting ASTM standards for
"Phase I" environmental site assessments, and including an asbestos evaluation
for all buildings constructed prior to 1980, prepared by Law Engineering or
other environmental engineer acceptable to the Lenders. Such assessments shall
be utilized by the Lenders for informational purposes, and shall be subject to
review and approval by the Lenders. Additionally, not later than 30 days prior
to any Collateral Change Date, Borrower shall deliver to the Agent a
certification in compliance with applicable federal law relating to asbestos
records and asbestos materials affecting any buildings constructed before 1980
that are to be added to the Collateral.
(f) Not later than 30 days prior to any Collateral Change Date,
and on the Collateral Change Date, Borrower shall deliver to the Agent a current
Rent Roll for the property to be added to the Collateral.
(g) On or before any Collateral Change Date, Borrower shall
deliver the following materials to the Agent and the Agent's Counsel, in form
and content acceptable to the Agent and the Agent's Counsel:
(i) Evidence of the current corporate status of
Borrower in Florida, and the current authority of Borrower to transact
business in each other State in which the property to be added as
Collateral is located.
(ii) A certificate of the Secretary of Borrower
certifying to the Lenders: (i) the completeness, accuracy and
continuing effectiveness of Articles of Incorporation and Bylaws of
Borrower as attached to such certificate, (ii) the names and signatures
of all executive officers of Borrower, and (iii) the completeness,
accuracy and continuing effectiveness of an executed resolution of the
Board of Directors of Borrower, as attached to such certificate,
authorizing Borrower's execution and delivery of the Loan Documents.
(h) On or before any Collateral Change Date, Borrower shall
deliver to the Agent evidence satisfactory to the Lenders and the Lenders'
Counsel that the property to be added to the Collateral is in compliance with
the insurance requirements set forth in Section 5.3, and in compliance with the
tax requirements set forth in Section 5.4.
(i) On or before any Collateral Change Date, Borrower shall
deliver to the Agent a certification substantially in the form attached as
Exhibit F, executed and dated as of a date not more than 30 days prior to such
Collateral Change Date, relating to the level of compliance of the property to
be added to the Collateral with Governmental Requirements.
(j) On a Collateral Change Date, Borrower shall furnish Agent with
an opinion addressed to the Lenders provided by an attorney licensed in each
State in which the property to be added to the Collateral is located, retained
by Borrower and acceptable to the Lenders. Said opinions shall be subject to
approval by the Lenders and shall address
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such matters as the Lenders reasonably may require, including, without
limitation, the following that:
(A) the due organization and valid legal existence of
Borrower as a Florida corporation, and the current
authority of Borrower to transact business in the
State.
(B) the due authorization, execution, validity, binding
effect and enforceability of the Loan Documents in
accordance with their terms.
(C) except for Collateral located in the State of Texas,
the Collateral and its use by Borrower comply with
applicable zoning, building, land use and
environmental requirements of all governmental
authorities having jurisdiction over the Collateral
(the foregoing opinion may be given to the actual
knowledge of opining counsel and based on a
certification of such matters given by Borrower to
opining counsel).
(D) all amounts paid and to be paid by Borrower as
interest under the Loan Documents constitute lawful
interest or are not usurious under the laws of the
State.
(E) the existence of, or the non-existence of, any
requirement for any consent of any governmental
authority in connection with the execution, delivery
or performance of the Loan Documents by Borrower.
(F) the Security Deed provides that a properly perfected
first priority security interest in the Collateral to
be added or substituted.
(G) the Loan Documents are valid Obligations of the
Borrower, remain in full force and effect, and
provide Lender a properly perfected first priority
security interest in the Collateral to be added or
substituted.
SECTION 4.4 Lenders' Approval of Addition or Substitution of
Collateral. Each of the Lenders shall have fifteen (15) Business Days from
receipt of the Due Diligence Package and any additional due diligence materials
reasonably requested by Lenders pursuant to Article IV hereof, to approve any
request by Borrower to add or substitute Collateral. The Lenders shall respond
to the Agent with any objections within said fifteen (15) Business Days or the
addition or substitution of such Collateral shall be deemed approved by such
Lender.
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ARTICLE V
CERTAIN MATTERS CONCERNING THE COLLATERAL
SECTION 5.1 Inspections. The Lenders reserve the right to require
an engineering/structural inspection of any property constituting the Collateral
or property to be added to the Collateral if any of the Lenders have reasonable
cause to believe that the physical condition, safety features, or disabled
persons access features of such building are not maintained to standards
consistent with good management practices or in compliance with Governmental
Requirements. Any such inspection shall be conducted at the expense of Borrower.
Unless such inspection is made pursuant to the foregoing, the Lenders otherwise
shall have the right to inspect the Collateral at any reasonable time throughout
the Loan Term, at the expense of the Lenders.
SECTION 5.2 Appraisals. During the Loan Term, the Lenders may
obtain an Appraisal of the Collateral when required by the regulations of the
Federal Reserve Board or at such other times as the Lenders reasonably may
require. All Appraisals required under this Section 5.2, or required under any
other provision of this Agreement, shall be performed by an independent third
party appraiser selected by the Lenders, and shall be addressed to the Lenders
with a copy certified to Borrower. Following the Lenders' receipt of such
Appraisals satisfactory to the Lenders, the Lenders shall provide a copy of such
Appraisals to Borrower. The cost of such Appraisals shall be borne by Borrower.
The terms of engagement of any appraiser shall include a clause obligating the
appraiser to maintain confidentiality of such Appraisal and information obtained
in connection therewith. Borrower's failure or refusal to sign such an
engagement letter, however, shall not impair the Lenders' right to obtain such
Appraisals. Borrower agrees to pay the cost of such Appraisal within 10 days
after receiving an invoice for such Appraisal.
SECTION 5.3 Insurance. Borrower shall procure and maintain during
the Loan Term an insurance policy issued by Insurer or other insurer acceptable
to the Lenders in its discretion, covering the improved real property and
personal property comprising the Collateral, with standards, terms and coverages
meeting or exceeding those of Borrower's existing Policy No. A TL-441545 0000,
issued by the Insurer, as in effect as of August 1, 1996. Such policy shall
recite the Lenders' interest as mortgagee in standard non-contributory mortgagee
clauses effective as of the Closing Date, or any Funding Date as to any property
added to the Collateral as of such Funding Date, and shall contain a provision
for 30 days prior written notice to the Lenders of cancellation of or any change
in the risk or coverages insured. Borrower shall promptly pay all premiums for
such policy as the same become due, and shall maintain such policy throughout
the Loan Term without cost to the Lenders.
If any such policy or part thereof shall expire or be withdrawn, or
become void or subject to cancellation by reason of the breach of any condition
thereof, or become void by reason of the failure or impairment of the capital of
any company in which the insurance shall be carried, or if for any reason
whatsoever the insurance shall be unsatisfactory to the Lenders, the Agent may
procure on behalf of the Lenders such insurance as it deems
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necessary to protect the interest of the Lenders. Borrower shall promptly upon
demand pay direct or reimburse the Lenders for all premiums and other costs
incurred in procuring such insurance.
SECTION 5.4 Taxes and Assessments. Borrower shall pay all taxes
and assessments relating to the Collateral prior to delinquency thereof, and
shall deliver to the Agent receipted bills for taxes and assessments promptly
upon Borrower's receipt thereof.
Notwithstanding the foregoing, Borrower shall not be required to pay
any taxes or assessments as long as Borrower shall contest, in good faith and at
its expense, the existence, the amount or the validity thereof by appropriate
proceedings; provided that such proceedings shall operate during the pendency
thereof to prevent (A) the collection of, or other realization upon, such taxes
or assessments so contested, (B) the sale, forfeiture or loss of the Collateral
to satisfy the same, (C) any interference with the use or occupancy of the
Collateral, and (D) any interference with the payment of Borrower's obligations
under the Loan. Borrower agrees that each such contest shall be promptly and
diligently prosecuted to a final conclusion, except that Borrower shall, as long
as the conditions of the first sentence of this paragraph are at all times
complied with, have the right to attempt to settle or compromise such contest
through negotiations. Borrower shall pay and save the Lenders harmless against
any and all losses, judgments, decrees and costs (including all reasonable
attorneys' fees and expenses) in connection with any such contest and shall,
promptly after the final determination of such contest, fully pay and discharge
the amounts which shall be levied, assessed, charged or imposed or be determined
to be payable therein or in connection therewith, together with all penalties,
fines, interest, costs and expenses thereof or in connection therewith, and
perform all acts the performance of which shall be ordered or decreed as a
result thereof. No such contest shall subject the Lenders to the risk of any
material civil liability or any criminal liability. If the Lenders reasonably
believe that such contest is not in compliance with the requirements of this
paragraph, then, upon written demand by any of the Lenders, Borrower promptly
shall pay the amount of such taxes or assessments so contested, which payment
may be made under protest.
SECTION 5.5 Tax and Insurance Deposits. Upon the Lenders'
request, or if an Event of Default has occurred, Borrower shall deposit with
Agent a sum equivalent to 1 year's insurance premium on the casualty insurance
policy insuring the Collateral, and shall pay to the Agent on a monthly basis an
amount equivalent to 1/12 of all annual ad valorem real and personal property
taxes and assessments levied against the Collateral as estimated by the Agent,
in order to accumulate with the Agent sufficient funds to pay such taxes and
assessments and a full year's insurance premiums 30 days prior to their due
date. The Lenders shall maintain any funds so deposited in an interest bearing
account (money market rates), and interest accrued on such account will be
reinvested in such account but shall be considered income to Borrower for state
and federal income tax and capital gains tax purposes. To the extent that funds
are available for disbursement out of such account, the Lenders shall pay annual
ad valorem real and personal property taxes
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and assessments levied against the Collateral at such time as will result in the
greatest discount, if any, for early payment.
SECTION 5.6 Tax Service Contract; Annual Tax Searches. The
Lenders shall have the right to engage Transamerica Real Estate Tax Service
(TRETS) for the Loan Term, for the purpose of providing the Lenders annual tax
information concerning the Collateral; provided, however, that the Lenders will
notify Borrower in writing before the Lenders engage TRETS. The cost of the
TRETS service, if applicable, shall be paid by Borrower. Borrower shall engage
or employ the services of a tax specialist (who may be an employee of Borrower)
for the purpose of monitoring and complying with all impositions of ad valorem
real and personal property taxes and assessments against the Collateral. If the
Lenders require Borrower to make tax deposits pursuant to Section 5.5 above,
then the Lenders will not engage TRETS. Borrower agrees to permit the Lenders to
consult with Borrower's tax specialist from time to time for the purpose of
determining the status of Borrower's tax compliance.
SECTION 5.7 Due on Sale. The entire balance of the Loan and all
other sums owing to the Lenders under the Loan Documents shall be and become
immediately due and payable, at the option of the Lenders, if there shall occur
without the Lenders' prior written consent any sale, conveyance, further
encumbrance, or other transfer of title to the Collateral, or any interest
therein (whether voluntarily or by operation of law). Any consent by the Lenders
permitting a transaction otherwise prohibited under this paragraph shall not
constitute a consent to or waiver of any right, remedy or power of the Lenders
to withhold its consent on a subsequent occasion to a transaction not otherwise
permitted by the provisions of this paragraph. No such consent shall be
considered by the Lenders unless the appropriate service fees and legal fees are
paid in advance and no such consent shall be given unless Borrower agrees, inter
alia, that immediately upon closing of the subject sale or transfer, Borrower
shall provide the Lenders with a copy of the deed or other instrument conveying
title to the Collateral to transferee.
SECTION 5.8 Loss and Restoration following Casualty or
Condemnation.
(a) In the event of any casualty or condemnation affecting all or
any portion of the Collateral, Borrower shall give immediate written and oral
notice thereof to the Agent. All loss proceeds of any insurance policies
following any casualty, and all awards derived from any condemnation, shall be
applied (i) to restoration of the Collateral suffering such loss if such loss is
less than 50% of the full replacement cost of such Collateral, or (ii) at the
Lenders' option, to restoration of the Collateral suffering such loss or to the
payment of principal (whether or not then due and payable), interest and other
sums secured by the Loan Documents (in the order and in the amounts that the
Lenders in their sole discretion elect), on such terms as the Lenders may
specify, if such loss is 50% or more of the full replacement cost of such
Collateral. If the Lenders elect, pursuant to clause (ii) above, to apply the
proceeds of casualty or awards of condemnation, to payment of principal, then
the Lenders will exercise a good faith effort to apply such proceeds or awards
in a manner
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that will seek to minimize the application of charges or penalties for
prepayment or repayment of LIBOR Advances.
(b) Promptly following any loss resulting from a casualty or
condemnation, Borrower shall commence and diligently continue to restore the
Collateral affected thereby as nearly as possible to its value, condition and
character immediately prior to such loss, whether or not any insurance proceeds
or award derived from condemnation, as applicable, is sufficient to cover the
cost of restoration. Provided that no Event of Default exists, the Lenders shall
make available to Borrower any proceeds of such loss received by the Lenders,
subject to the terms and conditions set forth in this Section 5.8. Borrower
shall be entitled to receive from the Lenders periodic disbursements of the
proceeds payable in connection with such loss, but only on the basis of
certificates of Borrower delivered to the Agent from time to time as such
rebuilding, restoration and repair progresses or is completed. Each such
certificate shall describe the work for which Borrower is requesting payment,
the cost incurred by Borrower in connection therewith, and shall state that such
work has been performed in conformity with all Governmental Requirements and in
compliance with plans and specifications therefor, the estimated cost of
completing such work, and that Borrower has not theretofore received payment for
such work. In the event the cost of restoration or repairs exceeds the available
insurance proceeds, the Borrower shall immediately fund any deficiency with
Borrower's funds prior to the application of any insurance proceeds. Upon
completion of such work, if any proceeds of such loss remain after the final
payment has been made for such work, such remaining proceeds shall be paid to
Borrower. If the cost of any such work shall exceed the amount of such proceeds,
the deficiency shall be paid by Borrower. In no event shall the Lenders have any
obligation to turn over proceeds to Borrower if any Default or Event of Default
exists and is continuing, unless and until such Default or Event of Default
shall have been cured or removed.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 Representations and Warranties of Borrower. Borrower
represents and warrants to the Lenders as follows:
(a) Borrower is a corporation organized under the Florida Business
Corporation Act, and its status is active. Borrower is authorized to transact
business in each State.
(b) Borrower has the corporate power to conduct its business and
to execute and deliver this Agreement and the other Loan Documents and to
perform the Obligations.
(c) Borrower has authorized the execution and delivery of the Loan
Documents and the performance of the Obligations by all necessary corporate
action.
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(d) The execution and delivery of the Loan Documents and the
performance of the Obligations by Borrower do not (i) violate Borrower's
articles of incorporation or bylaws; (ii) constitute a breach of or a default
under any agreement or instrument to which Borrower or any Subsidiary is a party
or by which Borrower, its Subsidiaries or their respective assets are bound;
(iii) violate a judgment, decree or order of any court or administrative
tribunal, which judgment, decree or order is binding on Borrower or any
Subsidiary or the Collateral; or (iv) violate any federal, Florida or State law,
rule or regulation.
(e) No consents, authorizations or approvals or other action by,
and no notice to or filing with, any governmental authority, regulatory body or
any creditor is required for the execution and delivery of the Loan Documents or
the performance of the Obligations by Borrower.
(f) The Loan Documents are the legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
(g) Borrower is a REIT, and is listed as a publicly traded company
on a nationally recognized stock exchange; and Borrower has no Subsidiaries
other than the Subsidiaries described on attached Exhibit G, and such other
Subsidiaries as may be formed subsequent to the date hereof and disclosed to the
Lenders in writing.
(h) No Subsidiary is the holder or obligee of any Debt.
(i) No judicial or administrative proceedings are pending or
threatened, including any bankruptcy proceeding, against Borrower or any
Subsidiary which might adversely affect Borrower's ability to pay or perform the
Obligations, Borrower's obligations under any Leases, or Borrower's contracts
and agreements entered or to be entered for the performance of the Obligations,
or which might adversely affect Borrower's ownership, management, leasing and
operation of the Collateral.
(j) All financial information supplied by Borrower to the Lenders
in support of Borrower's application for the Loan fairly presents the financial
condition of Borrower as of the effective dates thereof and the results of the
operations of Borrower for the period ended on such dates, all in accordance
with GAAP; and since September 30, 1998, there has been no material adverse
change in such condition, operations or properties.
(k) Neither Borrower nor any Subsidiary is engaged in the business
of extending credit for the purpose of purchasing or carrying "margin stock"
(within the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of the Loan will be used, directly or
indirectly, by Borrower or any Subsidiary to purchase or carry any margin stock
or to extend credit to others for the purpose of purchasing or carrying any
margin stock.
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(l) Borrower is in compliance in all material respects with all
applicable provisions of ERISA, no Reportable Event has occurred and is
continuing with respect to any Plan, and Borrower has not incurred any liability
to the Pension Benefit Guaranty Corporation under Section 4062 of ERISA.
(m) Borrower is not in default under any material agreement,
lease, contract or other instrument relating to the ownership, management,
leasing and operation of the Collateral, and no event of default by Borrower, or
event which with the giving of notice or the passage of time would become an
event of default by Borrower, has occurred or is continuing with respect to any
such agreement, contract or other instrument.
(n) Borrower has good and marketable title to the Collateral
(except Collateral located in the State of Texas, as to which Borrower has
indefeasible fee simple title), free and clear of any liens, encumbrances not
acceptable to the Lenders or mortgages other than or encumbrances in any
Security Deed and other than those created or imposed by the Loan Documents,
Borrower is in exclusive possession of the Collateral subject only to rights of
parties in possession as tenants under recorded or unrecorded Leases, as tenants
only, Borrower is the landlord under the Leases, and no Subsidiary (other than
an SPE created pursuant to Section 13.12) has any interest in the Collateral,
including the Leases, except as described on attached Exhibit H.
(o) There are no pending or, to the best of Borrower's knowledge,
threatened actions or proceedings for condemnation or eminent domain affecting
the Collateral, except as disclosed to the Lenders in the title commitment
delivered to the Lenders at Closing and except such actions or proceedings as
may be threatened or become pending subsequent to the date hereof and disclosed
to the Lenders in writing.
(p) Any reprogramming required to permit the proper functioning,
in and following the year 2000 as it relates to the two digit issues associated
therewith, of the Borrower's (a) computer systems and (b) equipment containing
embedded microchips (including systems and equipment supplied by others or with
which Borrower's systems interface) and the testing of all such systems and
equipment, as so reprogrammed, will be in substantial compliance by June 30,
1999. The Borrower shall report quarterly thereafter to the Agent as to the
status of its progress on final phase testing to become one hundred percent
(100%) year 2000 compliant. The cost to the Borrower of such reprogramming and
testing and of the reasonably foreseeable consequences of year 2000 to the
Borrower (including, without limitation, reprogramming errors and the failure of
others' systems or equipment) will not result in a Default or a material adverse
effect in the ability of the Borrower to meet its Obligations hereunder. Except
for such of the reprogramming referred to in the preceding sentence as may be
necessary, the computer and management information systems of the Borrower and
its Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient to permit the Borrower
to conduct its business without material adverse effect in the ability of the
Borrower to meet its Obligations hereunder.
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(q) All of the Collateral is in compliance with all Environmental
Laws and Borrower has not received notice of any Claims for violations of any
Environmental Laws, as such terms are defined in each Indemnification Agreement.
The foregoing representations and warranties shall survive the
execution and delivery of this Agreement.
ARTICLE VII
COVENANTS OF BORROWER
SECTION 7.1 Affirmative Covenants. So long as the Notes shall
remain unpaid or the Lenders shall have any obligation to make any Advance
hereunder, and in addition to all other covenants and agreements of Borrower set
forth in this Agreement, Borrower shall comply at all times with the affirmative
covenants set forth in this Section 7.1 and the Financial Covenants set forth in
Section 3.1, unless the Lenders shall otherwise consent in writing.
(a) Costs and Expenses. Borrower shall pay all reasonable costs,
fees, commissions, charges, taxes and other expenses incident to the evaluation,
preparation and closing of the Loan, any subsequent modification or partial
release affecting the Loan Documents, subsequent funding of Advances, or
otherwise incurred in protecting and preserving the lien of the Loan Documents
or in enforcing the Lenders' rights under the Loan Documents, or in enforcing,
sustaining, protecting, or defending the lien or priority of the Loan Documents
against any and all persons, including, but not limited to, lien claimants or
the exercise of the power of eminent domain or other governmental power of any
kind, including, without limitation, reasonable fees and expenses of the
Lenders' Counsel, examination of title to the Collateral and loan title
insurance thereon, boundary surveys, Appraisals, environmental site assessments,
asbestos evaluations, engineering/structural inspections, note and mortgage
taxes, transfer taxes, tax search service fees, and all recording fees and
charges. Additionally, to the extent that applicable state law requires that any
note or mortgage tax is payable in connection with any Advance, Borrower shall
be obligated to pay the same to the Lenders upon demand therefor. Every such
payment made by or on behalf of the Lenders will be immediately due and payable
by Borrower to the Lenders and will bear interest from the date of disbursement
thereof by the Lenders at the then applicable Base Rate until reimbursed to the
Lenders by Borrower (provided, however, that if Borrower fails to reimburse the
Lenders for such payments within 5 days following the Lenders' written notice
and demand therefor, such payments made by the Lenders will bear interest from
the date of disbursement at the Default Rate), and the same, together with such
interest, will be secured by the lien of the Loan Documents. Nothing contained
in this paragraph will be construed as requiring the Lenders to advance or spend
money for any of the purposes mentioned in this paragraph.
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(b) Rent Roll. Borrower shall deliver to the Agent on a quarterly
basis an updated Rent Roll reflecting information concerning the Leases as of
the end of the preceding quarter, and upon the Agent's request, deliver to the
Agent a certified report of prepaid rentals and security deposits relating to
such Leases.
(c) Compliance with Governmental Requirements. Borrower shall
comply with all Governmental Requirements, including, without limitation, ERISA,
regulations relating to protection of the environment, building and
construction, highway access, disability access, asbestos, lead-based paint,
zoning, land use and concurrency, and other regulations relating to the
ownership, leasing, development, use or operation of the Collateral.
(d) Preservation of Corporate Existence. Borrower shall preserve
and maintain its corporate existence and status as a REIT, and its rights
(charter and statutory), and remain qualified to transact business in each
State.
(e) Preservation and Maintenance of Collateral. Borrower shall
maintain the Collateral in a condition consistent with good management
practices, and in good repair (which shall include structural or non-structural
and foreseen or unforeseen repairs), without structural alteration in any
material respect (except interior tenant improvements), without the Lenders'
prior written approval, which will not be unreasonably withheld or delayed.
(f) Reporting Requirements.
(i) Not later than 45 days after the end of the
first three calendar quarters of each fiscal year of Borrower, Borrower
shall submit to the Agent a Borrowing Compliance Certificate and a
Borrowing Base Certificate, in form and content acceptable to the
Lenders in its sole discretion, prepared by management and certified as
true and correct by either the Treasurer, chief financial officer or
chief accounting officer of Borrower, confirming Borrower's compliance
with the Financial Covenants and with the Borrowing Base eligibility
requirements for the Collateral set forth in Section 3.3 hereunder and
setting forth in summary form the financial information and numerical
calculations supporting such conclusions.
(ii) Not later than 45 days after the end of the
first three calendar quarters of each fiscal year of Borrower, Borrower
shall submit to the Agent a copy of Borrower's Form 10Q as filed with
the SEC, and not later than 90 days after the end of Borrower's fiscal
year, Borrower shall submit to the Lenders a copy of Borrower's Form
10K as filed with the SEC.
(iii) Borrower shall submit to the Agent, not
later than one hundred twenty (120) days after the end of Borrower's
fiscal year, (a) a copy of an Annual Report, (b) a three-year business
plan with supporting financial projections in
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reasonable detail acceptable to the Agent, and (c) a Borrowing
Compliance Certificate.
(iv) Borrower shall submit to the Agent copies of
all special filings made by Borrower to the SEC within 15 days
following the date of such filing, including, without limitation, any
filings seeking approval of transactions with any Subsidiaries.
(v) Borrower shall keep books and records
reflecting its financial condition in accordance with GAAP. The Lenders
shall have the right, from time to time, at all times during normal
business hours, to examine such books, records and accounts at the
corporate offices of Borrower at 8880 Freedom Crossing Trail,
Jacksonville, Florida, and to make such copies or extracts thereof as
the Lenders deems necessary.
(vi) Borrower shall submit to the Agent, not
later than forty-five (45) days after the end of each fiscal quarter of
Borrower, operating statements for all Property included within the
Collateral.
(vii) Notwithstanding any of the foregoing
reporting requirements, upon request of the Agent, Borrower shall
submit to the Agent a pro forma Borrowing Compliance Certificate in
order for Agent to determine the Applicable Margins for LIBOR Advances
hereunder.
(g) Notice of Failure to Perform. Promptly (and in any event
within 5 days after the occurrence thereof) notify the Lenders of any failure by
Borrower to perform or observe any Obligation.
SECTION 7.2 Negative Covenants. So long as the Notes shall remain
unpaid or the Lenders shall have any obligation to make any Advance hereunder,
and in addition to all other covenants and agreements of Borrower set forth in
this Agreement, Borrower shall comply with the negative covenants set forth in
this Section 7.2, unless the Lenders shall otherwise consent in writing.
(a) Use of Loan Proceeds. Borrower shall not use Loan proceeds for
purposes of paying dividends or distributions to shareholders, or for funding
operating expenses, it being understood that proceeds of the Loan shall be used
by Borrower for general corporate purposes of Borrower including Borrower's
acquisition of existing office buildings, and construction and development of
new office buildings owned by Borrower located primarily in existing Koger
office parks.
(b) Structural Alterations. Borrower shall not erect or construct
any new structures of any kind or additions or material alterations to existing
buildings or other structures on the Collateral (except interior tenant
improvements), without the Lenders' prior written approval, which will not be
unreasonably withheld or delayed.
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(c) Change in Nature of Business. Borrower shall not make any
material change in the nature of its business as carried on as of the Closing
Date.
(d) Transactions with Subsidiaries. Borrower shall not enter into
any transaction (including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service) with any Subsidiary or
Affiliate of Borrower except in the ordinary course of Borrower's business and
upon fair and reasonable terms that are no less favorable to it than it would
obtain in a comparable arm's length transaction with any third person. Borrower
shall not use proceeds of the Loan for the purpose of capitalizing or of funding
the operating or capital expenses of any Subsidiary or Affiliate of Borrower.
Any loans between the Borrower and any Affiliate or Subsidiary, or among any of
the Affiliates or any Subsidiaries, shall be subordinate to this Loan.
ARTICLE VIII
DEFAULT
SECTION 8.1 Events of Default. Any of the following events (each
a "Default") shall, following the passage of any grace or cure period as
provided below, constitute an Event of Default ("Event of Default"):
(a) Borrower shall fail to make any payment of principal under any
of the Notes on or before the same becomes due and payable on maturity thereof;
or Borrower shall fail to make any payment of interest under any of the Notes,
or any fees, costs or expenses due hereunder or thereunder, within 5 days after
the same becomes due and payable.
(b) Any representation or warranty made by Borrower (or any of its
officers) under or in connection with any Loan Document shall be or become
incorrect or untrue, or shall prove to have been incorrect or misleading in any
material respect when made.
(c) A transfer of any Property in violation of the due on sale
restrictions set forth in Section 5.7.
(d) Borrower shall fail to perform or observe any term, covenant
or agreement (other than a covenant of payment) contained in any Loan Document
on its part to be performed or observed, and such failure shall remain uncured
for 10 days after written notice thereof shall have been given by the Lenders to
Borrower, or if such failure cannot by its nature be cured within such 10 day
period, Borrower shall fail to commence and diligently pursue such cure within
10 days after written notice thereof shall have been given by the Lenders to
Borrower and shall fail to complete such cure within 60 days after the Lenders'
initial written notice of such failure.
(e) An involuntary case or proceeding under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect shall be
commenced against Borrower, and such case or proceeding shall not be dismissed
in 60 days; or a court shall
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enter a decree, or a court or regulatory authority having jurisdiction over
Borrower shall enter an order, appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator, conservator, supervisor, rehabilitator (or
similar official) of Borrower or for any substantial part of its property, or
ordering the winding-up, supervision or liquidation of its affairs.
(f) Borrower shall commence a voluntary case or proceeding under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
or proceeding under any such law, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator, supervisor, rehabilitator (or other similar official)
of Borrower or for any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall fail generally to pay
its indebtedness generally as the same becomes due, or shall take any corporate
action in furtherance of any of the foregoing.
(g) A judgment or order for the payment of money in excess of
$2,500,000 shall be rendered against Borrower and either (A) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (B) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
(h) A default has occurred and is continuing beyond any applicable
grace or cure period under any Debt (other than the Loan) in excess of
$2,500,000.
(i) Any material provision of the Loan Documents relating to the
Lenders's ability to realize on the Collateral following an Event of Default
shall for any reason cease to be valid and binding on Borrower, or Borrower
shall so state in writing.
(j) Any of the Security Agreements shall, as a result of
Borrower's acts or omissions, for any reason, except to the extent permitted by
the terms thereof, cease to create a valid and, upon filing of UCC-1 financing
statement(s), UCC-2 Notice Filings, or UCC-3 continuation statements, as
applicable, perfected first priority security interest in any of the Collateral
purported to be covered, which can be secured or perfected by such means.
(k) Any default has occurred under any of the Notes, Security
Deeds, or any of the other Loan Documents.
(l) Any material adverse change in the financial condition of the
Borrower such that the Borrower is unable to meet its Obligations hereunder or
under any of the other Loan Documents.
(m) Any change in the control of the Borrower or any change in the
management of the Borrower such that any two of the following: Victor Hughes, J.
C. Teagle, and David Hiley are no longer officers or directors of the Borrower,
and such management personnel
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are not replaced with officers or directors reasonably acceptable to the
Majority Lenders within one hundred twenty (120) days thereof.
(n) Any failure of the Borrower to comply at all times with the
Financial Covenants set forth in Section 3.1.
SECTION 8.2 Remedies following an Event of Default. If an Event
of Default shall occur, then, at the Lenders' option, in addition to Lenders'
remedies set forth in any other Loan Documents or as may be available to the
Lenders at law or in equity, the Lenders may by written notice to Borrower, (A)
declare the Lenders' obligation to make Advances to be terminated, whereupon the
same shall forthwith terminate, and (B) declare the Notes, all accrued and
unpaid interest thereon and all other amounts payable under the Loan Documents
to be, and the same shall thereupon forthwith become, immediately due and
payable without presentment, demand, protest or other notice or formality of any
kind, all of which are hereby expressly waived by Borrower.
SECTION 8.3 Default Interest. In addition to the Lenders'
remedies set forth in Section 8.2, if an Event of Default occurs, then, at the
Lenders' option, all unpaid Obligations shall accrue interest from the date of
Default at the Default Rate.
SECTION 8.4 Remedies Cumulative. No remedy, right or power
conferred upon the Agent or the Lenders is intended to be exclusive of any other
remedy, right or power given hereunder or now or hereafter existing at law, in
equity, or otherwise, and all such remedies, rights and powers shall be
cumulative.
ARTICLE IX
THE AGENT
SECTION 9.1 Appointment, Powers and Immunities.
(a) Each Lender hereby irrevocably appoints FUNB as the
administrative agent to administer the Loan on behalf of all of the Lenders in
accordance with the terms, covenants and conditions of this Agreement, together
with such powers as are specifically delegated to the Agent and are reasonably
incidental thereto. FUNB, by its execution and delivery of this Agreement,
accepts such appointment and agrees to administer the Loan on behalf of all of
the Lenders in accordance with the terms, covenants and conditions of this
Agreement. The voting, consent and approval rights of each Lender for all
matters requiring a vote or the consent or approval of the Lenders will be
proportionate to all other Lenders based upon each Lender's Percentage. The
Agent (i) shall not have any duties or responsibilities except those expressly
set forth in this Agreement and the other Documents, and shall not by reason of
this Agreement or any other Loan Document be a trustee for any Lender; (ii)
shall not be responsible to any Lender for any recitals, statements,
representations or warranties contained in this Agreement or any other Loan
Document, or in any certificate or other document referred to or provided for
in, or received
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by any of them under this Agreement or any other Loan Document, or for the
value, validity, effectiveness, genuineness, enforceability, execution, filing,
registration, collectibility , recording, perfection, existence or sufficiency
of this Agreement or any other Loan Document or any other document referred to
or provided for herein or therein or any property covered thereby or for any
failure by any party to perform any of its obligations hereunder or thereunder,
and shall not have any duty to inquire into or pass upon any of the foregoing
matters; (iii) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document except to the
extent requested by the Majority Lenders, (iv) SHALL NOT BE RESPONSIBLE FOR ANY
MISTAKE OF LAW OR FACT OR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY IT
HEREUNDER OR UNDER ANY OTHER DOCUMENT OR ANY OTHER LOAN DOCUMENT OR INSTRUMENT
REFERRED TO OR PROVIDED FOR HEREIN OR THEREIN OR IN CONNECTION HEREWITH OR
THEREWITH, INCLUDING, WITHOUT LIMITATION, PURSUANT TO ITS OWN NEGLIGENCE, BUT
NOT INCLUDING AND EXCEPT FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
AGENT; (v) shall not be bound by or obliged to recognize any agreement among or
between the Borrower, the Agent, and any Lender other than this Agreement and
the other Loan Documents, regardless of whether the Agent has knowledge of the
existence of any such agreement or the terms and provisions thereof; (vi) shall
not be charged with notice or knowledge of any fact or information not herein
set out or provided to the Agent in accordance with the terms of this Agreement
or any other Loan Document; (vii) shall not be responsible for any delay, error,
omission or default of any mail, telegraph, cable or wireless agency or
operator, and (viii) shall not be responsible for the acts or edicts of any
Governmental Authority. The Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.
(b) Without the prior written consent of Agent and all of the
Lenders, Agent shall not (i) modify or amend in any respect whatsoever the
interest rate provisions of the Loan Documents, (ii) increase the Loan Amount
above $200,000,000.00, (iii) extend the Maturity Date, (iv) extend or reduce the
due date for the scheduled payments of principal or interest on the Loan, (v)
amend the definition of Majority Lenders or any requirement that certain actions
be taken only with the consent of a certain number of the Lenders, (vi) change
any Events of Default, (vii) modify or amend the definition of Capitalization
Rate or Advance Rate, (viii) modify or amend the definition of Borrowing Base
Value, or (ix) modify or amend any provision of any Loan Document which by its
terms requires the consent of all of the Lenders for amendment. From time to
time upon Agent's request, each Lender shall execute and deliver such documents
and instruments as may be reasonably necessary to enable Agent to effectively
administer and service the Loan in its capacity as Agent and in the manner
contemplated by the provisions of this Agreement. No amendment or agreement
shall increase the Lender Commitment of any Lender without the written consent
of such Lender.
(c) All information provided to the Agent under or pursuant to the
Loan Documents, and all rights of the Agent to receive or request information,
or to inspect
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information or Property, shall be by the Agent on behalf of the Lenders. If any
Lender requests that it be able to receive or request such information, or make
such inspections, in its own right rather than through the Agent, the Borrower
will cooperate with the Agent and such Lender in order to obtain such
information or make such inspection as such Lender may reasonably require.
(d) The Borrower and any Guarantor shall be entitled to rely upon
a written notice or a written response from the Agent as being pursuant to
concurrence or consent of the Majority Lenders unless otherwise expressly stated
in the Agent's notice or response.
(e) Each Lender shall be responsible for its own costs and
expenses associated with its review of the Loan Documents.
SECTION 9.2 Reliance. The Agent shall be entitled to rely upon
any certification, notice or other communication (including any thereof by
telephone, telex, telecopy, telegram or cable) reasonably believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper person, and upon advice and statements of legal counsel (which may be
counsel for the Borrower), independent accountants and other experts selected by
the Agent. The Agent shall not be required in any way to determine the identity
or authority of any person delivering or executing the same. As to any matters
not expressly provided for by this Agreement or any other Loan Document, the
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and thereunder in accordance with instructions of the Majority
Lenders, and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders. If any order, writ, judgment or decree shall be
made or entered by any court affecting the rights, duties and obligations of the
Agent under this Agreement or any other Loan Document, then and in any of such
events the Agent is authorized, in its sole discretion, to rely upon and comply
with such order, writ, judgment or decree which it is advised by legal counsel
of its own choosing is binding upon it under the terms of this Agreement, the
relevant Loan Document or otherwise; and if the Agent complies with any such
order, writ, judgment or decree, then it shall not be liable to any Lender or to
any other Person by reason of such compliance even though such order, writ,
judgment or decree may be subsequently reversed, modified, annulled, set aside
or vacated.
SECTION 9.3 Defaults. The Agent shall not be deemed to have
constructive knowledge of the occurrence of a Default (other than the
non-payment of principal of or interest on the Loan) unless it has received
notice from a Lender or the Borrower specifying such Default and stating that
such notice is a "Notice of Default". In the event that the Agent receives such
a notice of the occurrence of a Default, or whenever the Agent has actual
knowledge of the occurrence of a Default, the Agent shall give prompt written
notice thereof to the Lenders (and shall give each Lender prompt notice of each
such non-payment). The Agent shall (subject to Section 9.7 hereof) take such
action with respect to such Default as shall be directed by the Majority Lenders
and within its rights under the Loan Documents and at law or in equity, provided
that, unless and until the
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Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, permitted
hereby with respect to such Default as it shall deem advisable in the best
interests of the Lenders and within its rights under the Loan Documents in order
to preserve, protect or enhance the collectibility of the Loan, at law or in
equity. Provided, however, that if there is an occurrence of an Event of
Default, then in no event or under any circumstances shall any of the actions
described in Sections 9.1 (b)(i) through (vii) of this Agreement be taken,
without in each instance the written consent of Agent and all of the Lenders.
SECTION 9.4 Rights as a Lender. With respect to the Advances
made, Agent, in its capacity as a Lender hereunder shall have the same rights
and powers hereunder as any other Lender and may exercise the same as though it
were not acting in its agency capacity, and the term "Lender" or "Lenders"
shall, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may (without having to account therefor to any
other Lender) as a Lender, and to the same extent as any other Lender, accept
deposits from, lend money to and generally engage in any kind of banking, trust,
letter of credit, agency or other business with the Borrower (and any of its
Subsidiaries) as if it were not acting as the Agent but solely as a Lender. The
Agent may accept fees and other consideration from the Borrower (in addition to
the fees heretofore agreed to between the Borrower and the Agent) for services
in connection with this Agreement or otherwise without having to account for the
same to the Lenders.
SECTION 9.5 Indemnification. The Lenders agree to indemnify the
Agent, its officers, directors, agents and attorneys, ratably in accordance with
each respective Lender's Percentage, for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever (INCLUDING BUT NOT LIMITED TO,
THE CONSEQUENCES OF THE NEGLIGENCE OF THE AGENT) which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein, or the transactions contemplated hereby or
thereby (including, without limitation, interest, penalties, reasonable
attorneys' fees and amounts paid in settlement in accordance with the terms of
this Section 9, but excluding, unless a Default has occurred and is continuing,
normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or of any such other documents, INCLUDING BUT NOT LIMITED TO THE
NEGLIGENCE OF THE AGENT, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified, or from the Agent's default in the
express obligations of the Agent to the Lenders provided for in this Agreement.
The obligations of the Lenders under this Section 9.5 shall survive the
termination of this Agreement and the repayment of the Obligations.
SECTION 9.6 Non-Reliance on Agent and Other Lenders. Each Lender
agrees that it has received current financial information with respect to the
Borrower and that it has, independently and without reliance on the Agent or any
other Lender and based
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on such documents and information as it has deemed appropriate, made its own
credit analysis of the Borrower and decision to enter into this Agreement and
that it will, independently and without reliance upon the Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or any of the other Loan Documents. The Agent
shall not be required to keep itself informed as to the performance or
observance by any party to this Agreement or any of the other Loan Documents or
any other document referred to or provided for herein or therein or to inspect
the properties or books of the Borrower or any party except as specifically
required by the Loan Documents. Except for notices, reports and other documents
and information expressly required to be furnished to the Lenders by the Agent
hereunder or under the other Loan Documents, the Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Borrower (or any
of its Subsidiaries) which may come into the possession of the Agent. Each
Lender assumes all risk of loss in connection with its Lender Commitment in the
Advances to the full extent of its Lender's Percentage therein. The Agent
assumes all risk of loss in connection with its Lender's Percentage in the
Advances to the full extent of its Lender Percentage therein.
SECTION 9.7 Failure to Act. Except for action expressly required
of the Agent, as the case may be, hereunder, or under the other Loan Documents,
the Agent shall in all cases be fully justified in failing or refusing to act
hereunder and thereunder unless it shall receive further assurances to its
satisfaction by the Lenders of their indemnification obligations under Section
9.5 hereof against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action.
SECTION 9.8 Resignation of Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving notice thereof to the Lenders and the Borrower. Upon any such
resignation, (i) the Majority Lenders without the consent of the Borrower shall
have the right to appoint a successor Agent so long as such successor Agent is
also a Lender at the time of such appointment and (ii) the Majority Lenders
shall have the right to appoint a successor Agent that is not a Lender at the
time of such appointment so long as the Borrower (if no Event of Default is then
in existence) consents to such appointment (which consent shall not be
unreasonably withheld). If no successor Agent shall have been so appointed by
the Majority Lenders and accepted such appointment within 30 days after the
retiring Agent's giving of notice of resignation, then the retiring Agent may,
on behalf of the Lenders, and with the consent of the Borrower which shall not
be unreasonably withheld, appoint a successor Agent. Any successor Agent shall
be an Eligible Assignee. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations as Agent thereafter arising hereunder and under any other Loan
Documents, but shall not be discharged from any liabilities for its actions as
Agent prior to
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the date of discharge. Such successor Agent shall promptly specify by notice to
the Borrower its principal office. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Section 9 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Agent.
SECTION 9.9 No Partnership. Neither the execution and delivery of
this Agreement nor any of the other Loan Documents nor any interest the Lenders,
the Agent or any of them may now or hereafter have in all or any part of the
Obligations shall create or be construed as creating a partnership, joint
venture or other joint enterprise between the Lenders or among the Lenders and
the Agent. The relationship between the Lenders, on the one hand, and the Agent,
on the other, is and shall be that of principals and agent only, and nothing in
this Agreement or any of the other Loan Documents shall be construed to
constitute the Agent as trustee or other fiduciary for any Lender or to impose
on the Agent any duty, responsibility or obligation other than those expressly
provided for herein and therein.
SECTION 9.10 Collateral. To the extent of each Lender's Percentage,
each Lender shall have a lien upon and security interest in the Collateral. The
respective proportional interests of Lenders shall be equal in lien, and dignity
with each other, without distinction or priority, each Lender having an
undivided interest and participation in the lien or title interest granted or
conveyed under the Security Deeds, the interest in Rents and Leases under the
Lease Assignments, the security interests obtained under the Security
Agreements, and in all other Collateral for the Loan.
ARTICLE X
OBLIGATIONS AND RIGHTS OF THE LENDERS
Lenders shall have the following obligations and rights with respect to
the Loan:
SECTION 10.1 Custody of Loan Documents. All of the original Loan
Documents given in connection with the Loan shall be held by Agent, except that
each Lender shall hold, for its own account, custody and possession the Note
payable to it. Agent will provide each Lender with 1 set of copies of the
executed Loan Documents.
SECTION 10.2 Account Records. Agent will keep a proper record of
all transactions related to the Loan including all receipts and disbursements
under the Loan Documents. Lenders will cooperate with each other in the
maintenance of uniform records and accounts related to the Loan. Agent will from
time to time and upon reasonable request of Lenders, furnish to the Lenders, or
their designated representatives, such information pertaining to the Loan as may
be contained in FUNB's books, records and accounts, and will cause its
designated officers to discuss the Loan with the designated officers of Lenders.
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SECTION 10.3 Collections of Payments. Agent will collect from
Borrower all principal and/or interest due under the Notes, and all other
amounts that may become due or payable under the Loan Documents, including
payments of proceeds of condemnation awards or insurance benefit payments, and
will, to the extent permitted or contemplated under this Agreement and the Loan
Documents, remit the same to Lenders, in accordance with each Lender's
Percentage.
SECTION 10.4 Standard of Care. Agent agrees to exercise the same
degree of care with respect to the Loan as it exercises in making and handling
loans for its own account. Agent does not assume any responsibility for the
solvency, financial condition or representations and warranties of Borrower nor
shall Agent be responsible for Borrower's performance of the Obligations. No
Lender shall be liable to any other Lender except for its willful misconduct or
gross negligence, and in any event, such liability shall not exceed, with
respect to any other Lender, the amount contributed to the Loan by such Lender,
plus interest.
Each Lender agrees to share, in accordance with each Lender's
Percentage in the Loan, in any loss, liability or damage (including, without
limitation, all costs and attorneys fees incurred in defense thereof) arising
from any claim, counterclaim, defense or set off asserted against Lenders, or
either of them, by Borrower or by anyone claiming by, through or under Borrower,
on account of any matter or thing in relation to the Loan or the administration
thereof; provided, however, that no Lender will be obligated to share in any
such loss, liability or damage arising out of the gross negligence, recklessness
or wilful misconduct of the other Lender.
SECTION 10.5 Payment; Set Offs and Banker's Liens. If any Lender
obtains any payment of principal or interest on the respective Note made payable
to it other than by payment through Agent pursuant to the terms hereof, whether
such payment is made by Borrower or another person or entity and whether through
the exercise of a right of set off or banker's lien, such Lender shall promptly
notify the other Lenders of such payment and make such adjustments with the
other Lenders as may be necessary to share such payment ratably among all of the
Lenders to the end that such payment, set off, or banker's lien shall inure to
the benefit of each of the Lenders based upon each Lender's Percentage. All sums
obtained by Lenders by such payments, set offs, and banker's liens shall be
applied to the Loan.
SECTION 10.6 Selection and Adjustment of Interest Rates. Should
Borrower elect any LIBOR Interest Rate as the applicable rate of interest for
any Advance, Agent shall promptly advise each of the Lenders of such election,
and of the actual rate of interest proposed to be charged, and any applicable
costs or fees associated with such election, as calculated by Agent. Agent will
advise each of the Lenders of any change in an applicable rate of interest for
any Advance on the same day the change is announced by telephone advice and will
confirm the same by written notice to each of the Lenders sent on the following
Business Day.
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SECTION 10.7 Disbursements for Protection of Collateral and
Collection and Enforcement of Obligations. Each Lender shall contribute, in
accordance with its Lender Percentage, to any disbursement required for the
protection of any of the Collateral or Lenders' security interest therein,
including disbursements to pay delinquent ad valorem real estate taxes or
insurance premiums; provided, however, that all such disbursements shall be
first approved by Agent. Additionally, each Lender will contribute, in
accordance with its Lender Percentage, to any disbursement required to pay the
costs and expense of collection procedures, including payment of reasonable
attorney's fees, title searches, court costs and bona fide administrative costs
of Agent in taking such action.
ARTICLE XI
ENFORCEMENT OF THE LOAN
Subject to the terms of Section 9.1, the Loan Documents shall be
enforced only as hereinafter provided.
SECTION 11.1 Exercise of Remedies following Event of Default.
Agent shall:
(a) upon the occurrence of any Event of Default; or
(b) upon the written request of the Majority Lenders if any
payment of principal under such Lender's Note is not made on or before its due
date, or if any payment of interest, or other charges, fees or penalties, then
due and payable under such Lender's Note, is not made within 5 days after its
due date; or
(c) promptly in the event that Agent obtains actual (but not
imputed) knowledge of an Event of Default, or promptly following receipt by
Agent of notice of an Event of Default.
on behalf of each of the Lenders, take such appropriate action as Agent may
elect in its reasonable discretion, for collection of the Loan and for
protection of the realization upon the Collateral, including legal action to
enforce the Loan Documents. Such action may be brought by Agent in the name of
Lenders and for their proportionate benefit. Each Lender will cooperate with
Agent in such collection efforts and will furnish to Agent the original of any
Loan Documents held by any Lender and make available its books and records
relating to the Loan. No Lender will take any remedial action following a
Default or Event of Default except in accordance with the provisions of this
Agreement.
SECTION 11.2 Waiver of Default and Modification. No modification,
amendment or waiver of any material provision of the Loan Documents, including,
without limitation, waiver of any Default or Event of Default, or renewal or
extension of the Loan, or change in the terms of the Notes, or release or
substitution of any Collateral, shall be granted without the prior written
approval of Agent.
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SECTION 11.3 Foreclosure or Exercise of Power of Sale. In the
event of a foreclosure and foreclosure sale of any of the Collateral, or the
exercise of any power of sale available to Lenders, no Lender will bid at the
sale without the concurrence of the other Lenders, except as otherwise provided
herein. If a bid is entered by a Lender it shall be deemed to be a proportionate
bid by such Lender in the amount of such Lender's Percentage. Any bid entered
for less than the total balance of the Obligations (including interest and
expenses recoverable from the proceeds of such sale) shall be deemed to have
been entered on behalf of all Lenders and, if such a bid is the successful bid,
the Lender which entered such bid shall cause conveyance of the Collateral
pursuant to such foreclosure sale to be issued to the Lenders, as tenants in
common, in shares equivalent to their respective Lender's Percentage. Any Lender
shall have the right to make a bid in an amount in excess of the total balance
of the Obligations (including interest and expenses which are recoverable from
the proceeds of the foreclosure sale) without concurrence of the other Lenders
and, if such bid is the successful bid, such Lender making such bid shall pay
the other Lenders their Lender's Percentage of the outstanding Obligations and
shall acquire the property for its own account, and the other Lenders shall
thereafter have no further interest in the Collateral so acquired.
SECTION 11.4 Disposition of Collateral After Foreclosure or
Exercise of Power of Sale. In the event of the purchase of any of the Collateral
on behalf of the Lenders at a foreclosure sale or by exercise of power of sale,
the Lenders, as tenants in common, shall share profits and expenses (including a
reasonable fee payable to any manager of the Collateral, and costs, fees and
expenses associated with maintenance and sale of the Collateral) incurred in
connection with the ownership and operation of such Collateral according to
their respective Lender's Percentage. Disposition of such Collateral so
acquired, or the respective interests of the Lenders therein, shall be as
follows:
(a) Upon the written approval of the Majority Lenders, any bona
fide offer by an independent third party for the purchase of any portion of the
foreclosed Collateral may be accepted. All Lenders shall join in any necessary
instruments of conveyance of such Collateral to such party, and the net proceeds
of the sale shall be distributed in accordance with each Lender's Percentage.
(b) No Lender shall sell, assign, pledge or transfer any of its
interest as tenant in common in Collateral acquired at any foreclosure sale,
other than to an Affiliate of such Lender, until such interest is first offered
for sale to the other Lenders. Such offer shall be made in writing, setting
forth the name of the proposed buyer and terms and conditions of such purchase,
and shall be made to the other Lenders upon the same terms and conditions,
except that, if the proposed purchase involves retention of a purchase money
security interest, the remaining Lender shall have the right to prepay the
purchase money obligation without premium or penalty. The remaining Lenders
shall have 15 days from the date of receipt of such offer to accept or reject
it.
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ARTICLE XII
ASSIGNMENTS
SECTION 12.1 Survival; Parties Bound: Successors and Assigns.
(a) All representations, warranties, covenants and agreements made
by or on behalf of the Borrower in connection herewith shall survive the
execution and delivery of the Loan Documents, shall not be affected by any
investigation made by any Person, and shall bind the Borrower and its
successors, trustees, receivers and assigns and inure to the benefit of the
successors and assigns of the Agent and the Lenders; provided, however, that the
Borrower may not assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Agent and all of the Lenders, and any
such assignment or transfer without such consent shall be null and void.
(b) A Lender may assign part of its Lender Commitment to an
Eligible Assignee so long as such assignment shall (1) include the voting rights
and all other rights and obligations attributable thereto, and include a written
assumption by the Eligible Assignee of the assigning Lender's obligations under
the Loan Documents, (2) require the written notice to and written consent of the
Borrower (so long as no Event of Default is then in existence) and the Agent,
such consent not to be unreasonably withheld, (3) be in a minimum amount of
$5,000,000 and in integral multiples of $5,000,000 thereafter, (4) not reduce
the Lender's Lender Commitment to an amount less than $10,000,000, in the case
of any partial assignment of Lender's Commitment, and (5) include payment to the
Agent by the Lender of a service fee for each assignment equal to $3,000.
(c) A Lender may sell participating interests in any of its
Advances so long as (i) the participating Lender shall continue to be liable for
its Lender Commitment and its other obligations under the Loan Documents, (ii)
the Agent, the Borrower and the other Lenders shall continue to deal solely and
directly with the participating Lender in connection with such Lender's rights
and obligations under the Loan Documents, and (iii) the participant may not
require the participating Lender to take or refrain from taking any action under
the Loan Documents that is in conflict with the terms and provisions of the Loan
Documents.
(d) Notwithstanding any provision hereof to the contrary, any
Lender may assign and pledge all or any portion of its Lender Commitment and
Advances to a Federal Reserve Bank; provided, however, that any such assignment
or pledge shall not relieve such Lender from its obligations under the Loan
Documents.
(e) The term of this Agreement shall be until the final maturity
of the Notes and the payment of all amounts due under the Loan Documents.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Prior Loan Agreement. This Second Amended and
Restated Revolving Credit Loan Agreement amends and restates the Prior Loan
Agreement. The covenants, terms and provisions of this Agreement shall apply and
shall govern the administration of the Loan and the making of Advances from and
after the date of execution of this Agreement.
SECTION 13.2 Amendments, Etc. No amendment, modification, release,
termination or waiver of any provision of this Agreement or the other Loan
Documents shall be effective unless the same shall be in writing and signed by
the Lenders (as required herein) and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 13.3 Indemnification and Limitation of Claims. Borrower
hereby indemnifies and agrees to defend, protect and hold the Lenders harmless
and each of their respective officers, directors, employees, attorneys and
agents (collectively, the "Indemnitees") from and against any and all
liabilities, obligations, losses (other than loss of profits), damages,
penalties, actions, judgments, suits, claims, costs, reasonable expenses and
disbursements of any kind or nature whatsoever (excluding any taxes and
including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees by a
party other than Agent or another Lender in any manner relating to or arising
out of (i) this Agreement or the other Loan Documents, or any act, event or
transaction related or attendant thereto, the making and administration of the
Loan, the use or intended use of the proceeds of the Loan, or any of the other
transactions contemplated by the Loan Documents, or (ii) any liabilities and
costs relating to violation of any Governmental Requirements (including without
limitation the Americans with Disabilities Act, regulations and guidelines
promulgated thereunder, and similar state laws and regulations), the past,
present or future operations of Borrower or any Subsidiary or any of their
respective predecessors in interest, or the past, present or future physical
condition of the Collateral (collectively, the "Indemnified Matters"); provided,
however, Borrower shall have no obligation to an Indemnitee hereunder with
respect to (i) Indemnified Matters caused by or resulting from the negligent
acts or omissions of such Indemnitee, as determined by a court of competent
jurisdiction in a non-appealable final judgment, or (ii) any loss, cost, damage,
claim or expense relating to any portion of the Collateral that accrues after
title to such portion of the Collateral is transferred to the Lenders, or its
successors and assigns, by foreclosure, power of sale, deed in lieu of
foreclosure or otherwise. Furthermore, Borrower agrees not to assert any claim
against any of the Indemnitees, on any theory of liability, for punitive damages
arising out of, or in any way in connection with, the Obligations, or the other
matters governed by this Agreement and the other Loan Documents. To the extent
that the undertaking to indemnify, pay and hold harmless set forth in this
paragraph may be unenforceable
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because it is violative of any law or public policy, Borrower shall contribute
the maximum portion which it is permitted to pay and satisfy under applicable
law, to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.
SECTION 13.4 Notices. All notices, demands, requests for consents,
consents and other communications required or permitted hereunder shall be in
writing (including telefax transmission) and shall be given by (a) Prepaid
United States Certified Mail, Return Receipt Requested, (b) hand delivery, (c)
overnight delivery service using a reputable national or regional carrier such
as United Parcel Service or Federal Express, or (d) telefax transmission with
electronic receipt confirmation, to such party, addressed to it, at its address
or telefax number set forth below, or at such other address or telefax number as
such party may hereafter specify for the purpose of notice to the other party.
Each such notice, request or communication shall be effective (a) if sent by
United States Certified Mail, Return Receipt Requested, 3 Business Days
following the postmark, (b) if sent by hand delivery, upon receipt thereof, (c)
if sent by overnight delivery service, on the next Business Day, or (d) if sent
by telefax transmission, on the same Business Day, to the address of the parties
specified below.
If to Borrower:
Koger Equity, Inc.
8880 Freedom Crossing Trail
Jacksonville, Florida 32256
Attention: Mr. David Hiley
Telefax No. 904-538-8839
If to the Lenders:
First Union National Bank
c/o First Union Capital Markets Group
One First Union Center
301 South College Street
Charlotte, North Carolina 28288
Attention: John A. Schissel/REIT Banking Group
Telefax No. 704/383-6205
and
Guaranty Federal Savings Bank
8333 Douglas Avenue
Dallas, Texas 75225
Attention: Roger Davis
Telefax No. 214/360-1678
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and
AmSouth Bank
1900 5th Avenue North
Birmingham, Alabama 35203
Attention: Katherine L. McDavid
Telefax No.205/326-4075
and
Citizens Bank of Rhode Island
One Citizens Plaza, 4th Floor
Providence, Rhode Island 02903
Attention: Lawrence S. Hershoff
Telefax No. 401/282-4485
and
Compass Bank
10060 Skinner Lake Drive
Jacksonville, Florida 32246
Attention: David H. Sheffield
Telefax No. 904/564-8906
SECTION 13.5 No Waiver; Remedies. No failure on the part of the
Agent or the Lenders to exercise, and no delay in exercising, any right under
any Loan Document shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under any Loan Document preclude any other or
further exercise thereof or the exercise of any other right. The remedies
provided in the Loan Documents are cumulative and not exclusive of any remedies
provided at law or in equity.
SECTION 13.6 Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of Borrower, the Agent, and the Lenders
and their respective successors and assigns, except Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lenders.
SECTION 13.7 Governing Law; Jurisdiction and Venue. The rights and
obligations of Borrower, the Agent, and the Lenders with respect to this
Agreement and the Notes shall be governed by, and construed in accordance with,
the laws of the State of North Carolina, and the rights and obligations of
Borrower, the Agent, and the Lenders with respect to any other Loan Documents
shall be governed by, and construed in accordance with, the laws of the State in
which the Collateral is located. Any suit, action or proceeding may be brought
against Borrower under the Loan Documents in the courts of the State in which
the Collateral is located or, to the extent not otherwise required by the laws
of the State in which the Collateral is located in the courts of the County of
Mecklenburg, State
59
<PAGE> 64
of North Carolina, or the United States District Court for the Western District
of North Carolina, as the Agent in its sole discretion may elect, and Borrower
hereby accepts the nonexclusive jurisdiction of those courts for the purpose of
any suit, action, or proceeding. In addition, Borrower hereby irrevocably
waives, to the fullest extent permitted by law, any objection which Borrower may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to the Loan Documents or any judgment entered by any
court in respect of any part thereof, and hereby further irrevocably waives any
claim that any suit, action or proceeding brought in the jurisdiction selected
by the Agent has been brought in an inconvenient forum. Borrower irrevocably
agrees that any pleadings or service of process may be had on Borrower by
mailing to Borrower at the address set forth in Section 13.4 by certified or
registered mail and such mailing shall be effective for all purposes, including
the establishment of personal jurisdiction of the court in any such action.
SECTION 13.8 Severability. Any provision of this Agreement or the
other Loan Documents which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remainder of such provision or the
remaining provisions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 13.9 Headings. Section headings used in this Agreement are
for convenience only and shall not affect the construction of this Agreement.
SECTION 13.10 Counterparts. This Agreement may be executed in two
or more counterparts, and by the different parties on separate counterparts,
each of which shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument, and it shall not be necessary
in making proof of this Agreement to produce or account for more than one such
counterpart.
SECTION 13.11 WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, BORROWER, THE AGENT, AND THE LENDERS, THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE
"PARTIES") EACH ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL
IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE
BASED UPON OR ARISING OUT OF THE LOAN OR THE LOAN DOCUMENTS, ANY COLLATERAL OR
THE DEALINGS OR THE RELATIONSHIP BETWEEN THE PARTIES RELATED THERETO. NONE OF
THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN
WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE
BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT FOR THE LENDERS TO MAKE THE
LOAN TO BORROWER, AND SHALL BE SUBJECT TO NO EXCEPTIONS.
60
<PAGE> 65
SECTION 13.12 Transfer of Collateral to Special Purpose Entity.
Notwithstanding the due on sale clause restricting transfer of the Collateral in
Section 5.7, and subject to the prior written approval of the Agent and the
restrictions contained in this section, Borrower may transfer all of the
Collateral in any State to a special purpose entity ("SPE") formed specifically
for the purpose of taking title to all of the Collateral in such State to reduce
franchise tax liability in accordance with the applicable law of such State. In
order to obtain approval of the transfer by the Agent, Borrower shall provide
the Agent with a complete set of organizational documents for the SPE,
including, without limitation, articles of incorporation, bylaws, corporate
resolutions, certificates of good standing, certificates of existence,
authorizations to transact business in the State, articles of organization,
operating agreements, management agreements, agency agreements, partnership and
limited partnership agreements, joint venture agreements, certificates of
limited partnership, and certificates of authority, all as applicable. Borrower
shall also submit copies of all proposed conveyance documents in connection with
any such transfer, and Borrower will pay and indemnify Agent and the Lenders
from and against any and all costs, fees, expenses, or intangible, documentary
stamp tax, or other taxes associated therewith, or with Lenders' review of such
documentation. Agent shall have the right to approve such documents in its
reasonable discretion. Notwithstanding the foregoing, Agent shall have the right
to prohibit the transfer of any Collateral to an SPE if such SPE is not a
wholly-owned Subsidiary, or a limited partnership in which the general partner
and limited partners are not wholly-owned Subsidiaries, or a limited liability
company in which the member or members are not wholly-owned Subsidiaries, of
Koger, or is not otherwise controlled by Koger in a manner acceptable to the
Lenders in their sole discretion. The Borrower shall effect any such transfer of
Collateral only after receipt of written notice from the Agent approving such
transfer, and Borrower shall convey any such Collateral by a deed reviewed and
approved by Agent in its reasonable discretion. The transferee SPE shall also
execute an Assumption Agreement in the form attached hereto as Exhibit K,
pursuant to which such SPE shall become a Borrower under the Loan, and further
pursuant to which such SPE shall agree to assume all of the obligations of the
Borrower under this Agreement, the Notes and the other Loan Documents and to
abide by all of the terms and conditions thereof including, without limitation,
the Financial Covenants set forth in Section 3.1. The Assumption Agreement shall
explicitly provide that such assumption of the Loan by the SPE shall not release
the Borrower from any obligations under the Loan Documents. In the event of any
Default or event which with notice or the passage of time would constitute a
Default hereunder, Borrower shall be prohibited from making any transfer of any
Collateral hereunder. Notwithstanding anything herein to the contrary,
Borrower's transfer of Collateral to an SPE in accordance with the requirements
of this subsection, shall not constitute a violation of any representation or
warranty herein or render any such representation or warranty untrue, which, but
for the transfer to the SPE would otherwise be true and accurate in all
respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
61
<PAGE> 66
IN WITNESS WHEREOF, Borrower, the Agent, and the Lenders have caused
this Agreement to be executed as of the date first above written.
BORROWER:
KOGER EQUITY, INC., a Florida corporation
By: /s/ G. Danny Edwards
-----------------------------------------
Name: G. Danny Edwards
---------------------------------------
Title: Treasurer
--------------------------------------
AGENT:
FIRST UNION NATIONAL BANK, a national
association, as Agent
By: /s/ David M. Blackman
-----------------------------------------
Name: David M. Blackman
---------------------------------------
Title: Vice President
----------------------------
LENDERS:
FIRST UNION NATIONAL BANK, a national
association
By: /s/ David M. Blackman
-----------------------------------------
Name: David M. Blackman
---------------------------------------
Title: Vice President
----------------------------
GUARANTY FEDERAL BANK, F.S.B., a
federal savings bank
By: /s/ Richard V. Thompson
-----------------------------------------
Name: Richard V. Thompson
---------------------------------------
Title: Vice President
----------------------------
62
<PAGE> 67
AMSOUTH BANK, a state banking corporation
By: /s/ Arthur J. Samuel, III
-----------------------------------------
Name: Arthur J. Samuel, III
---------------------------------------
Title: Vice President
----------------------------
CITIZENS BANK OF RHODE ISLAND, a
Rhode Island financial institution
By: /s/ Lawrence S. Hershoff
-----------------------------------------
Name: Lawrence S. Hershoff
---------------------------------------
Title: Vice President
----------------------------
COMPASS BANK, an Alabama banking
corporation
By: /s/ David H. Sheffield
-----------------------------------------
Name: David H. Sheffield
---------------------------------------
Title: Vice President
----------------------------
SCHEDULE OF EXHIBITS:
Exhibit A - Description of Real Property
Subset 1 - Existing Properties Included Within Collateral
Subset 2 - New Properties Included Within Collateral
Exhibit B - Summary Requirements for Additions to Collateral Pool Properties
Exhibit C - Notice of Swing Line Borrowing
Exhibit D - Minimum Standards and Supplementary Requirements for Surveys
Exhibit E - Minimum Title Standards
Exhibit F - Form of Certificate of Compliance with Use and Occupancy Laws
Exhibit G - Schedule of Borrower's Subsidiaries
Exhibit H - Schedule of Subsidiaries' Interest in Collateral
Exhibit I - Form of Quit Claim Deed with Reservations and Grants of Easements
Exhibit J - Form of Borrowing Compliance Certificate
Exhibit K - Form of Assumption Agreement
63
<PAGE> 68
EXHIBIT A - DESCRIPTION OF REAL PROPERTY
[insert metes and bounds description of each building constituting Collateral]
<PAGE> 69
SUBSET 1 - EXISTING PROPERTIES INCLUDED WITHIN COLLATERAL
DeKalb County, Georgia
- ----------------------
Columbia Building Rhodes Building
Cornell Building Oglethorpe Building
Dartmouth Building Rutgers Building
Drake Building Stanford Building
Harvard Building Stetson Building
Hollins Building Vanderbilt Building
Lincoln Building Williams Building
Yale Building
Guilford County, North Carolina
- -------------------------------
Asheville Building Lenoir Building
Boone Building Morehead Building
Henderson Building Pinehurst Building
Hickory Building Rockingham Building
Kinston Building Salem Building
Koger Building Wilmington Building
Wrightsville Building
Mecklenburg County, North Carolina
- ----------------------------------
Beaufort Building Koger Building
Brunswick Building Kogerama Building
Catawba Building Rowan Building
Davie Building Rutherford Building
Granville Building Scotland Building
Hatteras Building Wilson Building
Greenville County, South Carolina
- ---------------------------------
Allendale Building
Edgefield Building
Lancaster Building
<PAGE> 70
SUBSET 2 - NEW PROPERTIES INCLUDED WITHIN COLLATERAL
Jefferson County, Alabama
- -------------------------
3700 Building
3800 Building
4100 Building
4200 Building
Buildings A-F & Cinema, The Shops at the Colonnade
DeKalb County, Georgia
- ----------------------
Cambridge Building
Colgate Building
Davidson Building
Duke Building
Fordham Building
McGill Building
Oxford Building
Tulane Building
Gwinnett County, Georgia
- ------------------------
Gwinnett Building
Bexar County, Texas
- -------------------
Atrium Building
Pacific Plaza Building
<PAGE> 71
EXHIBIT B - SUMMARY REQUIREMENTS FOR ADDITIONS TO COLLATERAL POOL PROPERTIES
[attach from Loan Commitment]
<PAGE> 72
EXHIBIT C - NOTICE OF SWING LINE BORROWING
<PAGE> 73
EXHIBIT D - MINIMUM STANDARDS AND SUPPLEMENTARY REQUIREMENTS FOR SURVEYS
[attach from Loan Commitment]
<PAGE> 74
EXHIBIT E - MINIMUM TITLE STANDARDS
[attach from Loan Commitment]
<PAGE> 75
EXHIBIT F - FORM OF CERTIFICATE OF COMPLIANCE WITH USE AND OCCUPANCY LAWS
CERTIFICATE OF COMPLIANCE WITH USE AND OCCUPANCY LAWS
The undersigned, being the ____________________________ of KOGER
EQUITY, INC., a Florida corporation ("Koger") does hereby, on behalf of Koger
and by authority duly given, certify to FIRST UNION NATIONAL BANK, a national
association ("Agent"), AmSOUTH BANK, a state banking corporation, GUARANTY
FEDERAL BANK, F.S.B., a federal savings bank, CITIZENS BANK OF RHODE ISLAND, a
Rhode Island financial institution, and COMPASS BANK, an Alabama banking
corporation (collectively with the Agent, the "Lenders") the following as of the
date hereof:
1. Koger understands that the Lenders are relying upon this
Certificate, and will continue to rely upon this Certificate, in connection with
the transactions contemplated in that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of December 30, 1998, by and among
Koger and the Lenders (the "Loan Agreement"). All capitalized terms used herein
and not defined herein shall have the meanings given to them in the Loan
Agreement.
2. To the best of Koger's knowledge and except as disclosed on
Exhibit A attached hereto, the Collateral encumbered by the Loan Documents and
the use thereof by Koger, is in material compliance with all laws, ordinances,
rules and regulations of all governmental authorities having jurisdiction over
the Collateral, including, but not limited to, all applicable zoning, building,
occupancy, land use and environmental requirements of all governmental
authorities having jurisdiction over the Collateral, except state and federal
laws and regulations governing facilities accessibility for disabled persons
(such as the Americans with Disabilities Act Accessibility Guidelines) (the
laws, ordinances, rules and regulations referred to above being collectively
referred to as the "Use and Occupancy Laws").
3. Certificates of compliance with the Use and Occupancy Laws, if
issued in the ordinary course of business by the applicable governmental
authority, have been issued with respect to the Collateral and those
certificates have not been revoked.
4. Koger has received no notice from any governmental body,
agency or department or from any other source that the Collateral, or Koger's
use thereof, is in violation of or conflict with any of the Use and Occupancy
Laws.
5. Koger understands and agrees that it has an affirmative duty
to promptly notify the Lenders upon its becoming aware of, or upon its receipt
of notice regarding, any assertion by a governmental authority, or any action or
proceeding commenced by any person, seeking damages relating to, or seeking to
cause or enforce compliance with, the Use and Occupancy Laws. Such notice shall
be in writing and shall specifically identify the nature of such assertion,
action or proceeding, and the Collateral affected thereby.
<PAGE> 76
6. Koger understands and agrees that it has an affirmative duty
to promptly remedy any noncompliance with the Use and Occupancy Laws upon
written request therefor by the Lenders following any assertion by a
governmental authority, or any action or proceeding commenced by any person,
seeking damages relating to, or seeking to cause or enforce compliance with, the
Use and Occupancy Laws. Koger hereby indemnifies and agrees to hold harmless the
Lenders from and against all claims, demands and expenses related to such claims
and demands, including reasonable attorneys' fees and paralegals' fees, arising
from any noncompliance with the Use and Occupancy Laws; provided, however, this
indemnity will not extend to any damage, liability or loss resulting from the
negligence, recklessness or wilful misconduct of the Lenders (it being
understood, however, that none of the Lenders will be deemed to have, or to have
assumed, any duty to confirm, cause, guaranty or underwrite, compliance of the
Collateral with the Use and Occupancy Laws).
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate as of the 30th day of December, 1998.
KOGER EQUITY, INC., a Florida
corporation
By:
-----------------------------------------
Name:
---------------------------------------
Its:
----------------------------------------
STATE OF )
---------------------------
COUNTY OF )
--------------------------
The foregoing instrument was acknowledged before me this _____ day of
______________, 199___, by ____________________________________________, the
___________________ of KOGER EQUITY, INC., a Florida corporation, on behalf of
the corporation, who either ____ is personally known to me or ____ has produced
identification in the form of _____________ driver's license.
--------------------------------------------
Print Name:
---------------------------------
Notary Public, State of
---------------------
Commission No.
------------------------------
My Commission Expires:
----------------------
[NOTARIAL SEAL]
<PAGE> 77
EXHIBIT G - SCHEDULE OF BORROWER'S SUBSIDIARIES
Entities to be consolidated in KE's Financial Statement:
SOUTHEAST PROPERTIES HOLDING CORPORATION: ("Southeast") A Florida Corporation
wholly-owned by Koger Equity, Inc. Pursuant to the Merger of KPI into Koger
Equity, Southeast became the managing general partner of The Koger Partnership,
Ltd. Southeast was responsible for handling the liquidation of The Koger
Partnership, Ltd.
KOGER REAL ESTATE SERVICES, INC.: A Florida corporation wholly-owned by Koger
Equity, manages 21 office buildings owned by Centoff Realty Company, Inc., a
subsidiary of Morgan Guaranty Trust Company of New York.
<PAGE> 78
EXHIBIT H - SCHEDULE OF SUBSIDIARIES' INTEREST IN COLLATERAL
NONE
<PAGE> 79
Prepared by and Return to
Charles L. Cranford
Martin, Ade, Birchfield & Mickler P.A.
P.O. Box 59
Jacksonville, Florida 32201
EXHIBIT I - FORM OF RELEASE DEED
For Clerk's Use Only
QUIT CLAIM DEED WITH RESERVATIONS
AND GRANTS OF EASEMENTS
WHEREAS, __________________________________, a national banking
association (the "Trustee"), is the trustee under that certain Deed of Trust
from KOGER EQUITY, INC., a Florida corporation ("KEI"), recorded in ____________
Book _____, page _____, of the public records of __________ County,
_______________, an Assignment of Leases and Rents recorded in _____________
Book ______, page _____, and a financing statement recorded in _______ Book
_____, page _____, of said records (collectively, the "Security Instrument");
and
WHEREAS, the Trustee has been requested to release the premises
hereinafter described, from the lien and operation of the Security Instrument
and to quit claim Trustee's interest therein to KEI; and
WHEREAS, the Trustee will retain an interest in certain properties
adjacent to the property conveyed hereby.
NOW, THEREFORE, for valuable consideration, the Trustee does hereby
grant, convey, transfer and quit claim to KEI all of Trustee's interest in that
parcel of land more particularly described on Exhibit A attached hereto (the
"Property"), reserving to Trustee the following described easements over the
Property and granting to KEI easements over the lands retained by Trustee, all
such easements being subject to the terms and conditions contained herein.
1. Reservation of Access Easements. Trustee hereby reserves unto
Trustee a non-exclusive, perpetual easement over, across and upon the parcel of
land described in Exhibit B attached hereto ("Parcel 1") for vehicular and
pedestrian ingress and egress.
2. Grant of Access Easement. Trustee hereby grants to KEI, and
subordinates the lien of the Security Instrument to, a non-exclusive, perpetual
easement over, across and upon the parcel of land described in Exhibit C
attached hereto ("Parcel 2") for vehicular and pedestrian ingress and egress.
3. Reservation of Water/Sewer Utility Easements. Trustee hereby
reserves a non-exclusive, perpetual easement over, under, across and upon the
parcel of land described in Exhibit D attached hereto ("Parcel 3") for the
construction, operation, repair and maintenance of [water/sanitary sewer]
utility lines.
<PAGE> 80
4. Grant of Water/Sewer Utility Easement. Trustee hereby grants
to KEI, and subordinates the lien of the Security Instrument to a non-exclusive,
perpetual easement over, under, across and upon the parcel of land described in
Exhibit E attached hereto ("Parcel 4") for the construction, operation, repair
and maintenance of [water/sanitary sewer] utility lines.
5. Reservation of Drainage Easement. Trustee hereby reserves a
non-exclusive, perpetual easement under and through the parcel of land described
in Exhibit F attached hereto ("Parcel 5") for the construction, operation,
repair and maintenance of storm water drainage. The easement reserved pursuant
to this paragraph 5 for storm water drainage is strictly for the placement and
use of underground improvements and lines, and nothing herein shall permit the
placement of improvements or structures at or above surface level.
6. Reservation of Drainage Easement. Trustee hereby grants to
KEI, and subordinates the lien of the Security Instrument to a non-exclusive,
perpetual easement under and through the parcel of land described in Exhibit C
attached hereto ("Parcel 3") for the construction, operation, repair and
maintenance of storm water drainage. The easement granted pursuant to this
paragraph 6 for storm water drainage is strictly for the placement and use of
underground improvements and lines, and nothing herein shall permit the
placement of improvements or structures at or above surface level.
7. Each party shall have the right to have landscaping, roadways,
parking and other paving and related improvements over and upon such of Parcel
3, Parcel 4, Parcel 5, and Parcel 6 as are owned by such party; provided,
however, that the fee owner shall have no right to construct or place any
buildings or other improvements over and upon such Parcels which would
materially impair or interfere with the intended purpose of such easement or
violate the terms of any permit required for the operation of the facilities
therein. Without limiting the foregoing, all parties hereto consent to the
existing improvements within such Parcels.
8. Maintenance and Repair of Access Easement Areas. The owner
owning fee title thereto shall repair and maintain Parcel 1 and Parcel 2
(including, but not limited to the paving, striping, landscaping and lighting
thereon) in such a condition so as to permit the reasonably unobstructed use and
enjoyment of the easements herein granted.
9. Maintenance and Repair of Easement Areas other than Access
Easement Areas. Each party shall maintain and repair all storm water drainage,
water and sanitary sewer facilities and lines used exclusively by it, and shall
also maintain and repair all other storm water drainage, water and sanitary
sewer facilities and lines located on lands owned in fee by such party which are
used by Trustee and KEI. All maintenance and repair work performed by KEI and
Trustee shall be done only with reasonable prior written notice to the other and
at such times and in such manner so as to reasonably avoid interference with the
other's use of its lands and the business conducted thereon. All maintenance and
repair work performed by KEI and Trustee shall be completed in a timely and
first class
<PAGE> 81
manner, and the premises shall be restored to substantially the same condition
as existed prior to the need for the maintenance or repair (including any
repaving, resurfacing or relandscaping of the surface necessitated by the
maintenance or repair). The party performing or having performed the maintenance
or repair shall indemnify and hold harmless the fee owner of the parcel for any
cost, loss, damage or expense arising from said maintenance or repair.
10. Cost Sharing. Each owner shall bear the total cost of
maintaining any storm water drainage and water and sanitary sewer utility
facilities and lines serving only such owner's lands. The cost to maintain any
storm water drainage, or water or sanitary sewer utility facilities or lines,
the use of which is shared by more than one owner, shall be apportioned among
the owners based upon the following parameters. For storm water drainage and
retention, and ingress and egress easements, the cost of maintenance shall be
apportioned based upon the respective land area of the lands served by such
facilities. With respect to water and sanitary sewer lines, the cost of
maintenance shall be apportioned based upon the number of enclosed, heated
square feet within the improvements located on the respective lands served by
such facilities.
11. Taxes. Each owner of land on which a Parcel is located shall
pay, prior to delinquency, all taxes assessed against its respective land, and
upon request, furnish proof of payment to the other owner.
12. Exercise of Easement Rights. The exercise of the easement
rights granted herein shall be conducted so as not to unreasonably interfere
with the use and enjoyment of the other persons entitled to use or enjoy the
respective parcels affected by this Agreement. The owner of the servient estate
of any easement granted hereunder shall have the right to use the relevant
easement area for any purpose which does not unreasonably interfere with or
impair the reasonable use and benefit of such easement for its intended
purposes.
13. Indemnity. No fee owner of any Parcel under this Agreement
shall be responsible to any other owner, or to any of the other owner's agents,
employees, tenants, invitees or licensees for any loss, expense or damage other
than such loss, expense or damage as is caused by the negligence or other fault
of any such fee owner, its agents, contractors or employees. Each owner agrees
to indemnify and hold the other owner harmless from any and all liability, loss,
expense, damage (including attorneys' fees and paralegals' fees) and claims
arising from or alleged to arise from use of the easements granted under this
Agreement by such first owner's agents, contractors, employees, tenants,
invitees or licensees.
14. Default and Remedies.
a. In General. In the event of a breach by any party
under this Agreement of any obligation set forth under this Agreement, the
non-breaching party shall be entitled to injunctive relief mandating compliance
with this Agreement and to obtain a
<PAGE> 82
decree specifically enforcing the performance of the obligation; the parties
acknowledge and stipulate the inadequacy of legal remedies and the irreparable
harm which would be caused by any such breach. Notwithstanding the foregoing,
each non-breaching party shall also be entitled to relief by any and all other
available, legal and equitable remedies from the consequences of such breach.
Any costs and expenses of such proceeding including reasonable attorneys' and
paralegals' fees, shall be paid by the breaching party. No breach of the
provisions of this Agreement shall entitle any owner or any third party to
cancel, rescind and/or otherwise terminate this Agreement, but such limitation
shall not affect in any manner any of the other rights and remedies which such
party may have under this Agreement by reason of any breach of the provisions of
this Agreement. No breach of the provisions of this Agreement shall defeat or
render invalid the lien of any mortgage made in good faith for value covering
any part of the Parcels under this Agreement or any improvements thereon.
b. Self Help. In addition to those remedies provided
above, if any party (the "Defaulting Party") shall default in the performance of
an obligation of such Defaulting Party under this Agreement, which default
adversely affects any other owner (the "Affected Party"), the Affected Party,
after 30 days' prior written notice to the Defaulting Party and any Mortgagee
(as hereinafter defined) having a lien on the parcel held by the Defaulting
Party (providing that such Mortgagee, as the case may be, shall have given
written notice to the Affected Party of the name and address of such Mortgagee),
or, in the event of any emergency, after such notice as is practical under the
circumstances, shall have the right to perform such obligation on behalf of the
Defaulting Party. In such event, if the Affected Party does, in fact, perform
such obligation on behalf of the Defaulting Party, the Defaulting Party shall
promptly, after being given written notice of the fact and amount of such
expenditure by the Affected Party, reimburse the Affected Party for the
Defaulting Party's share of the reasonable cost thereof (not exceeding
prevailing rates for like or similar work and materials, as applicable),
together with interest thereon from the date of the Affected Party's outlay at a
rate (the "Default Rate") equal to twelve percent (12.0%) per annum, plus
reasonable collection fees.
15. Mortgagee Rights. The owner and holder of any mortgage lien,
deed of trust, or similar instrument encumbering lands benefitted by a Parcel,
or part thereof (a "Mortgagee") shall have the same rights as its respective
mortgagor hereunder, including the right to cure defaults of its mortgagor and
to seek curative actions and exercise enforcement rights under this Agreement.
16. Notices and Communications. All notices, requests, demands and
other communications hereunder shall be in writing and transmitted to the other
party or parties by either (i) hand or courier delivery; (ii) Federal Express or
similar overnight courier delivery; or (iii) U.S. certified mail, return receipt
requested, postage prepaid. All notices are to be hand delivered or mailed to
the addresses indicated on the address of the party as shown by the tax rolls or
to such other address as shall be furnished in writing by any party to the other
parties.
<PAGE> 83
17. Duration of Easements. The easements herein granted (a) are
perpetual; (b) are non-exclusive; (c) run with the land; and (d) are binding
upon all and inure to the benefit or, as the case may be, burden of all the
assigns and successors of the respective owners.
18. No Dedication. Nothing contained herein shall create any
easement or other rights in the respective parcels in the general public;
provided, however, that this provision shall not restrict the intended use by
the grantees (and their respective successors, assigns, tenants, invitees,
guests and customers) of the easements herein granted.
IN WITNESS WHEREOF, the parties have executed this instrument on the
____ day of ______________, 1998.
[APPROPRIATE SIGNATURE BLOCKS AND ACKNOWLEDGMENTS TO BE INSERTED]
<PAGE> 84
EXHIBIT J - FORM OF BORROWING COMPLIANCE CERTIFICATE
BORROWING COMPLIANCE CERTIFICATE
The undersigned, _______________________________________, the
___________________________ of Koger Equity, Inc. ( the "Borrower") hereby
certifies to First Union National Bank (the "Agent"), __________________,
_______________, and ________________ (collectively with the Agent, the
"Lenders"), the following pursuant to Section 3.1(c) and 3.1(d) of Second
Amended and Restated Revolving Credit Loan Agreement dated as of December ___,
1998 between Borrower and Agent for the benefit of the Lenders (as amended,
supplemented or restated from time to time, the "Loan Agreement") (capitalized
terms not otherwise defined in this Certificate will have the meanings assigned
to such terms in the Loan Agreement):
1. Pursuant to Article III of the Loan Agreement, Borrower has
requested an Advance in the amount of $_________________ for disbursement on
______________, 199___ (the "Funding Date");
2. After giving effect to such Advance, the outstanding principal
balance of the Loan as of the Funding Date will be $___________________. The
undersigned has reviewed and is familiar with the terms of the Loan Agreement
and has made a review of the transactions, financial condition and other affairs
of Borrower for the relevant accounting period ending on _________________,
19__ (the "Current Accounting Period") and, on the basis thereof:
(a) Schedule 1 attached hereto accurately and completely
sets forth the calculations required to establish Borrower's compliance
with the Financial Covenants set forth in Section 3.1(a) of the Loan
Agreement as of the date of the financial statements for the Current
Accounting Period; and
(b) The aggregate outstanding principal amount of the
Loan, after giving effect to such Advance does not exceed the maximum
borrowing availability as calculated on Exhibit C of the Loan
Agreement.
3. As of the date hereof and as of the Funding Date:
(a) Borrower is in material compliance with the Financial
Covenants set forth in Section 3.1(a) of the Loan Agreement, both
before and after giving effect to such Advance and to the application
of proceeds therefrom;
(b) All of the Collateral is in material compliance with
all of the eligibility parameters set forth in Section 3.3 of the Loan
Agreement;
(c) Borrower is in material compliance with all of the
terms, covenants and conditions of the Loan Documents, no Default or
Event of Default presently exists or is continuing, and no event or
condition has occurred or is continuing, or would result from such
Advance or from the application of proceeds therefrom, which would
constitute a Default or Event of Default; and
(d) Borrower's representations and warranties set forth
in Section 6.1 of the Loan Agreement remain true and correct in all
material respects, both before and after giving effect to such Advance
and to the application of proceeds therefrom, except to the extent such
representations and warranties specifically relate to an earlier date
or such representations or warranties have become untrue by reason of
events or conditions otherwise permitted under the Loan Agreement or
the other Loan Documents.
IN WITNESS WHEREOF, the undersigned has signed this Borrowing
Compliance Certificate on behalf of Borrower on and as of _________________,
199___.
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[this document must be signed by Borrower's Chief Financial
Officer, Chief Accounting Officer or Treasurer]
[this document must include attached Schedule 1 Financial
Covenant compliance calculations]3
<PAGE> 85
EXHIBIT K - FORM OF ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT
This Assumption Agreement (the "Agreement") is made and entered into as
of this ______ day of ________, 1998, by and between________________________ a
___________________________ (corporation, limited liability, limited
partnership) (the "SPE"), and First Union National Bank, as Agent (the "Agent")
for the Lenders under that certain Second Amended and Restated Revolving Credit
Loan Agreement dated as of December ___, 1998, between Koger Equity, Inc., a
Florida corporation ("Koger"), the Agent, and the Lenders (the "Loan
Agreement").
WHEREAS, Koger has obtained the written approval of Agent to transfer
all of the Collateral in the State of ________ to the SPE pursuant to that
certain letter from the Agent to Koger dated _________; and
WHEREAS, the SPE has been created by Koger as a wholly owned Subsidiary
functioning as a special purpose entity to acquire title to all of the
Collateral in the State of ________; and
WHEREAS, to induce the Agent to grant its approval of the transfer of
the Collateral to the SPE, the SPE has agreed to enter into this Agreement,
pursuant to which the SPE shall assume all of the terms and conditions of the
Notes, the Loan Agreement, the Security Deeds recorded in the State of _______,
and all of the other Loan Documents;
NOW, THEREFORE, in consideration of the premises contained herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the SPE, Koger and the Agent hereby agree as follows:
1. The recitals set forth above are true and correct and are
incorporated herein by this reference.
2. The SPE hereby assumes and agrees to perform all of Koger's
obligations and duties including, but not limited to all of Koger's repayment
obligations under the Loan, the Notes, the Loan Agreement, and all of the other
Loan Documents from and after the date of this Agreement. The SPE hereby
acknowledges that the Collateral transferred to it by Koger in the State of
_________ is subject to that certain Mortgage, Security Agreement, and
Assignment of Rents and Leases recorded in Official Records Book ______, Page
______, of the public records of _________ County, ________ (the "Mortgage"). By
execution hereof, the SPE agrees to abide by all of the terms and conditions of
said Mortgage.
3. The Agent, by execution hereof, consents to the transfer of
the Collateral subject to the SPE's execution of this Agreement assuming of all
the terms and conditions of each of the Notes, the Loan Agreement, the Mortgage,
and each of the other Loan Documents.
<PAGE> 86
4. By execution hereof and notwithstanding the SPE's assumption
of Koger's duties and obligations under the Loan Documents, Koger ratifies and
confirms all of its obligations under the Notes, the Loan Agreement, and the
other Loan Documents, and Koger acknowledges that it remains fully liable for
all of its obligations thereunder.
5. Execution of this Agreement shall not release the Borrower, or
any existing SPE, from any of its obligations as a Borrower under the Loan.
6. Capitalized terms not defined herein shall have the meanings
ascribed to them in the Loan Agreement.
IN WITNESS WHEREOF, Koger, the SPE, and the Agent have executed this
Agreement as of the date first written above.
SPE:
By:
-------------------------------------
Name
Its:
------------------------------------
KOGER EQUITY, INC., a Florida corporation:
By:
-------------------------------------
Name
Its:
------------------------------------
AGENT:
FIRST UNION NATIONAL BANK,
a national association, as Agent
By:
-------------------------------------
Name
Its:
------------------------------------
<PAGE> 1
EXHIBIT 10(k)(2)(a)
SUBSTITUTION REVOLVING PROMISSORY NOTE
$45,000,000.00 St. Marys, Georgia
December 30, 1998
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the
order of FIRST UNION NATIONAL BANK, a national association ("Payee"), which term
will include any subsequent holder hereof, at the offices of Payee located at
301 South College Street, Charlotte, North Carolina 28288, or at such other
place as Payee may designate in writing from time to time, in legal tender of
the United States of America, the principal sum of FORTY-FIVE MILLION AND NO/100
DOLLARS ($45,000,000.00) or so much thereof as may be outstanding from time to
time as Advances (the "Principal Amount") pursuant to that certain Second
Amended and Restated Revolving Credit Loan Agreement dated December 30, 1998
between Maker, as borrower, and Payee, as Agent for the Lenders (the "Loan
Agreement"), and all applicable fees, charges, costs and expenses, together with
interest on each Advance at the applicable rate(s) of interest as provided
below. The Loan Agreement by this reference is hereby incorporated into this
Note to the same extent as if fully set forth herein. Capitalized terms not
otherwise defined in this Note will have the meanings assigned to such terms in
the Loan Agreement.
Interest on each Advance outstanding under this Note from time to time
will accrue, at Maker's election, at a LIBOR Interest Rate or the Base Rate (as
defined below), subject to the terms, covenants and conditions of the Loan
Agreement. Absent an Event of Default, the rate of interest charged on each
LIBOR Advance will remain constant during the Interest Period elected for such
LIBOR Advance, but will be adjusted based on any change in the LIBOR Interest
Rate for any subsequent Interest Period applicable to such LIBOR Advance, and
the rate of interest charged on each Base Rate Advance will be adjusted on a
daily basis upon any changes in the Base Rate.
For purposes of the foregoing, the following terms will have the
meanings assigned to such terms as set forth below:
(a) "LIBOR" means the interest rate at which 30-day, 60-day,
90-day or 180-day deposits (as elected by Maker) in United
States dollars are offered to prime banks in the London
interbank market which appears on Reuters Screen FRBD as of
11:00 A.M. (London time), 2 Business Days before the Funding
Date of any LIBOR Advance (or if not so reported, then as
determined by Agent from another recognized source or
interbank quotation) in an amount
- --------
NOTE: THIS SUBSTITUTION REVOLVING PROMISSORY NOTE SUBSTITUTES AND
REPLACES THAT CERTAIN SUBSTITUTION REVOLVING PROMISSORY NOTE
FROM MAKER TO PAYEE DATED DECEMBER 29, 1997.
1 of 5
<PAGE> 2
approximately equal or comparable to such LIBOR Advance with a
maturity equal to such Interest Period, as adjusted for
reserves by dividing that rate by 1.00 minus the Reserve
Requirement, if any.
(b) "LIBOR Interest Rate" means an annual rate of interest
calculated on the basis of a 360 day year which is equivalent
to LIBOR (as elected by Maker) plus the applicable margin
based upon the Maker's leverage based on the most recent
quarter's Borrowing Compliance Certificate measured on a
quarterly basis in accordance with Section 3.1(a)(vi) under
the Loan Agreement ("Borrower's Leverage"). The applicable
margins ("Applicable Margins") are as follows:
(i) if Borrower's Leverage is equal to or less than .30:1.00
the LIBOR Interest Rate shall equal LIBOR plus 1.30% per annum;
(ii) if Borrower's Leverage is greater than .30:1.00 and less
than or equal to .45:1.00, the LIBOR Interest Rate shall equal LIBOR
plus 1.45% per annum; and
(iii) if Borrower's Leverage is greater than .45:1.00 and less
than or equal to .55:1.00 the LIBOR Interest Rate shall equal LIBOR
plus 1.60% per annum.
(c) "Base Rate" means an annual rate of interest equivalent to the
interest rate (but not necessarily the best or lowest rate
charged borrowing customers of First Union National Bank)
published or announced by First Union National Bank from time
to time as its prime rate, calculated on the basis of a 365
(or 366, if applicable) day year.
All accrued but unpaid interest on the Principal Amount will be due and
payable monthly, commencing on January 10, 1999, and continuing on the 10th day
of each successive calendar month until this Note is fully paid.
If not sooner paid in full, the entire Principal Amount, together with
all accrued and unpaid interest, and any and all fees, costs, and expenses
hereunder, will be due and payable on December 30, 2001 (the "Maturity Date").
Subject to the terms, covenants and conditions of the Loan Agreement
and this Note, the Principal Amount may be repaid and reborrowed from time to
time upon Maker's request; provided, however, that Payee will have no obligation
to make any Advances if a Default or Event of Default exists.
TIME IS OF THE ESSENCE of this Note.
THE LOAN EVIDENCED BY THIS NOTE IS PAYABLE IN FULL ON THE MATURITY
DATE. MAKER MUST REPAY THE ENTIRE OUTSTANDING PRINCIPAL
2 of 5
<PAGE> 3
BALANCE OF THIS NOTE AND UNPAID INTEREST THEN DUE. PAYEE IS UNDER NO
OBLIGATION TO REFINANCE THE LOAN AT THAT TIME.
Unless Maker prior to or contemporaneously with the repayment or
prepayment of all or any portion of the Principal Amount designates in writing
to Payee the Advance that should be credited with such repayment or prepayment,
such repayment or prepayment will be applied by Payee to Advances on a
first-borrowed, first-repaid basis. Absent an Event of Default, any payments
received for application to any Advance, or as applied by Payee to any Advance,
as provided above, will be applied to the principal balance of such Advance;
provided, however, that if an Event of Default then exists, Payee may apply such
repayment or prepayment first to late charges and fees, then to interest to the
extent accrued, and then to the principal balance of such Advance, or in such
other manner as Payee may elect. Repayments and prepayments of any Advances
accruing interest at a LIBOR Interest Rate may be subject to a charge pursuant
to Section 2.5 of the Loan Agreement. Repayments and prepayments of any Advances
accruing interest at the Base Rate may be made without premium or penalty.
Prepayment in part will not affect, vary or postpone the duty of Maker to pay
all obligations when due, and it will not affect or impair the right of Payee to
pursue all remedies available to it hereunder or under the other Loan Documents.
Maker's failure to make any payment of principal under this Note on or
before the same becomes due and payable on maturity hereof, or Maker's failure
to make any payment of interest under this Note, or any fees, costs or expenses
due hereunder or under the Loan Agreement, within 5 days after the same become
due and payable, will constitute an Event of Default. Other events that
constitute Events of Default are as described in the Loan Agreement. Following
an Event of Default, the amount of each Advance will, at the option of Payee,
accrue interest from the date of Default at the Default Rate. In addition to any
other remedies that Payee may have hereunder or under the Loan Agreement, any
payment of interest that is not made within 10 days after the due date thereof,
as provided herein, or such longer period as may be required under applicable
laws of any State if the laws of such State are determined to govern this Note,
will be subject to a Late Charge which will be due and payable contemporaneously
with such payment of interest.
Following an Event of Default, at Payee's option, in addition to
Payee's remedies set forth in any other Loan Documents or as may be available to
Payee at law or in equity, Payee may by written notice to Maker, declare this
Note, all accrued and unpaid interest thereon, and all other amounts payable
under the Loan Documents to be, and the same will thereupon become, immediately
due and payable without presentment, demand, protest or other notice or
formality of any kind, all of which are hereby expressly waived by Maker.
Forbearance to exercise this right with respect to any failure or breach of
Maker will not constitute a waiver of the right as to any subsequent failure or
breach.
This Note is secured by the Collateral, and subject to the terms,
covenants and conditions of the Loan Documents. The terms, covenants and
conditions of the Loan
3 of 5
<PAGE> 4
Documents are by this reference incorporated into this Note. Advances under this
Note will be governed by the terms, covenants, and conditions set forth in the
Loan Documents. A default under any of the Loan Documents which is not cured
within any applicable grace period as provided therein will constitute a default
under this Note.
Maker covenants and agrees to pay all and singular the costs, taxes,
fees, and expenses of every kind and nature, including Agent's and/or Payee's
reasonable attorneys' and paralegals' fees and costs (including those incurred
on appeal or in bankruptcy proceedings), documentary stamp taxes, intangible
taxes and other excise taxes, and the cost of title evidence, incurred or
expended at any time by Payee in the collection of the loan evidenced hereby
and/or foreclosure of the Loan Documents or otherwise incurred in protecting and
preserving the lien of the Loan Documents or in enforcing Agent's and/or Payee's
rights under this Note, the Loan Documents or under any other instrument
evidencing or securing the indebtedness evidenced hereby, or in enforcing,
sustaining, protecting, or defending the lien or priority of the Loan Documents
against any and all persons, including, but not limited to, lien claimants or
the exercise of the power of eminent domain or other governmental power of any
kind.
Maker, including any guarantor or endorser, for themselves, their
heirs, legal representatives, successors, and assigns, respectively, hereby
expressly waive presentment, demand for payment, notice of dishonor, protest,
notice of non-payment, and diligence in collection, and consent that the time of
all payments or any part thereof may be extended, rearranged, renewed or
postponed by Payee, and further consent that the Collateral or any part thereof
may be released, exchanged, or substituted by Payee, without in anyway
modifying, altering, releasing, affecting, or limiting their respective
liability or the lien of any security instrument, and agree that Payee will not
be required first to institute any suit, or to exhaust any of its remedies
against Maker or any other person or party liable hereunder, in order to enforce
payment of this Note.
This Note is to be construed and enforced according to the laws of the
State of North Carolina and the laws and regulations of the United States of
America.
All agreements between Maker and Payee are expressly limited so that in
no contingency or event whatsoever, whether by reason of advancement of the
proceeds hereof, acceleration of maturity of the unpaid principal balance
hereof, or otherwise, will the amount paid or agreed to be paid to Payee for the
use, forbearance, or detention of the money to be advanced hereunder exceed the
highest lawful rate permissible under any law which a court of competent
jurisdiction may deem applicable hereto. If, from any circumstances whatsoever,
fulfillment of any provision of this Note or the Loan Documents securing this
Note, or by any other agreement referred to therein, at the time performance of
such provision will be due, will involve transcending the limit of validity
prescribed by law which a court of competent jurisdiction may deem applicable
thereto, then ipso facto, the obligation to be fulfilled will be reduced to the
maximum limit of such validity, and if for any circumstances whatsoever Payee
will ever receive interest, the amount of which would exceed the highest lawful
rate, such amount which would be excessive interest will be
4 of 5
<PAGE> 5
applied to the reduction of the principal balance remaining unpaid hereunder and
not to the payment of interest or if such excessive interest exceeds such
principal balance, refunded to Maker. At all times thereafter the rate of
interest in effect under this Note will continue at such maximum rate until
otherwise adjusted in accordance with the terms of this Note and the Loan
Agreement. The provisions of this paragraph will control every other provision
of all agreements between Maker and Payee.
MAKER AND PAYEE, BY ITS ACCEPTANCE HEREOF, EACH ACKNOWLEDGE AND AGREE
THAT NEITHER MAKER NOR PAYEE, NOR ANY ENDORSER, ASSIGNEE, SUCCESSOR, HEIR OR
LEGAL REPRESENTATIVE OF ANY OF THE SAME, WILL SEEK (AND HEREBY WAIVES ANY RIGHT
TO) A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER
LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS NOTE, THE LOAN AGREEMENT
OR THE LOAN DOCUMENTS, ANY COLLATERAL, OR THE DEALINGS OR THE RELATIONSHIP
BETWEEN MAKER AND PAYEE RELATED THERETO. NEITHER OF THE PARTIES WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY
MAKER AND PAYEE, ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND
CONSTITUTE A MATERIAL INDUCEMENT FOR PAYEE TO MAKE THE LOAN EVIDENCED BY THIS
NOTE TO MAKER, AND WILL BE SUBJECT TO NO EXCEPTIONS.
Signed, sealed and delivered in the KOGER EQUITY, INC., a Florida
presence of: corporation
/s/ Janice R. Long By: /s/ G. Danny Edwards
- ------------------------------------- -----------------------------
Unofficial Witness Name: G. Danny Edwards
---------------------------
Title: Treasurer
--------------------------
/s/ Dee Price
- -------------------------------------
Notary Public Attest: /s/ W. Lawrence Jenkins
-------------------------
Name: W. Lawrence Jenkins
---------------------------
Title: Corporate Secretary
--------------------------
My Commission Expires: Feb. 1, 1999 [CORPORATE SEAL]
Notary Public, Camden County, Georgia
- -------------------------------------
[NOTARY SEAL]
5 of 5
<PAGE> 1
EXHIBIT 10(k)(2)(b)
SUBSTITUTION REVOLVING PROMISSORY NOTE
$35,000,000.00 St. Marys, Georgia
December 30, 1998
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the
order of AMSOUTH BANK, a state banking corporation ("Payee"), which term will
include any subsequent holder hereof, at the offices of First Union National
Bank ("Agent") located at 301 South College Street, Charlotte, North Carolina
28288, or at such other place as Agent may designate in writing from time to
time, in legal tender of the United States of America, the principal sum of
THIRTY-FIVE MILLION AND NO/100 DOLLARS ($35,000,000.00) or so much thereof as
may be outstanding from time to time as Advances (the "Principal Amount")
pursuant to that certain Second Amended and Restated Revolving Credit Loan
Agreement dated December 30, 1998 between Maker, as borrower, and Agent, as
Agent for the Lenders (the "Loan Agreement"), and all applicable fees, charges,
costs and expenses, together with interest on each Advance at the applicable
rate(s) of interest as provided below. The Loan Agreement by this reference is
hereby incorporated into this Note to the same extent as if fully set forth
herein. Capitalized terms not otherwise defined in this Note will have the
meanings assigned to such terms in the Loan Agreement.
Interest on each Advance outstanding under this Note from time to time
will accrue, at Maker's election, at a LIBOR Interest Rate or the Base Rate (as
defined below), subject to the terms, covenants and conditions of the Loan
Agreement. Absent an Event of Default, the rate of interest charged on each
LIBOR Advance will remain constant during the Interest Period elected for such
LIBOR Advance, but will be adjusted based on any change in the LIBOR Interest
Rate for any subsequent Interest Period applicable to such LIBOR Advance, and
the rate of interest charged on each Base Rate Advance will be adjusted on a
daily basis upon any changes in the Base Rate.
For purposes of the foregoing, the following terms will have the
meanings assigned to such terms as set forth below:
(a) "LIBOR" means the interest rate at which 30-day, 60-day,
90-day or 180-day deposits (as elected by Maker) in United
States dollars are offered to prime banks in the London
interbank market which appears on Reuters Screen FRBD as of
11:00 A.M. (London time), 2 Business Days before the Funding
Date of any LIBOR Advance (or if not so reported, then as
determined by Agent from another recognized source or
interbank quotation) in an amount
- --------
NOTE: THIS SUBSTITUTION REVOLVING PROMISSORY NOTE SUBSTITUTES AND
REPLACES THAT CERTAIN REVOLVING PROMISSORY NOTE FROM MAKER TO
PAYEE DATED DECEMBER 29, 1997.
1 of 5
<PAGE> 2
approximately equal or comparable to such LIBOR Advance with a
maturity equal to such Interest Period, as adjusted for
reserves by dividing that rate by 1.00 minus the Reserve
Requirement, if any.
(b) "LIBOR Interest Rate" means an annual rate of interest
calculated on the basis of a 360 day year which is equivalent
to LIBOR (as elected by Maker) plus the applicable margin
based upon the Maker's leverage based on the most recent
quarter's Borrowing Compliance Certificate measured on a
quarterly basis in accordance with Section 3.1(a)(vi) under
the Loan Agreement ("Borrower's Leverage"). The applicable
margins ("Applicable Margins") are as follows:
(i) if Borrower's Leverage is equal to or less than .30:1.00
the LIBOR Interest Rate shall equal LIBOR plus 1.30% per annum;
(ii) if Borrower's Leverage is greater than .30:1.00 and less
than or equal to .45:1.00, the LIBOR Interest Rate shall equal LIBOR
plus 1.45% per annum; and
(iii) if Borrower's Leverage is greater than .45:1.00 and less
than or equal to .55:1.00 the LIBOR Interest Rate shall equal LIBOR
plus 1.60% per annum.
(c) "Base Rate" means an annual rate of interest equivalent to the
interest rate (but not necessarily the best or lowest rate
charged borrowing customers of First Union National Bank)
published or announced by First Union National Bank from time
to time as its prime rate, calculated on the basis of a 365
(or 366, if applicable) day year.
All accrued but unpaid interest on the Principal Amount will be due and
payable monthly, commencing on January 10, 1999, and continuing on the 10th day
of each successive calendar month until this Note is fully paid.
If not sooner paid in full, the entire Principal Amount, together with
all accrued and unpaid interest, and any and all fees, costs, and expenses
hereunder, will be due and payable on December 30, 2001 (the "Maturity Date").
Subject to the terms, covenants and conditions of the Loan Agreement
and this Note, the Principal Amount may be repaid and reborrowed from time to
time upon Maker's request; provided, however, that Payee will have no obligation
to make any Advances if a Default or Event of Default exists.
TIME IS OF THE ESSENCE of this Note.
THE LOAN EVIDENCED BY THIS NOTE IS PAYABLE IN FULL ON THE MATURITY
DATE. MAKER MUST REPAY THE ENTIRE OUTSTANDING PRINCIPAL BALANCE OF THIS NOTE AND
UNPAID INTEREST THEN DUE. PAYEE IS UNDER NO OBLIGATION TO REFINANCE THE LOAN AT
THAT TIME.
2 of 5
<PAGE> 3
Unless Maker prior to or contemporaneously with the repayment or
prepayment of all or any portion of the Principal Amount designates in writing
to Payee the Advance that should be credited with such repayment or prepayment,
such repayment or prepayment will be applied by Payee to Advances on a
first-borrowed, first-repaid basis. Absent an Event of Default, any payments
received for application to any Advance, or as applied by Payee to any Advance,
as provided above, will be applied to the principal balance of such Advance;
provided, however, that if an Event of Default then exists, Payee may apply such
repayment or prepayment first to late charges and fees, then to interest to the
extent accrued, and then to the principal balance of such Advance, or in such
other manner as Payee may elect. Repayments and prepayments of any Advances
accruing interest at a LIBOR Interest Rate may be subject to a charge pursuant
to Section 2.5 of the Loan Agreement. Repayments and prepayments of any Advances
accruing interest at the Base Rate may be made without premium or penalty.
Prepayment in part will not affect, vary or postpone the duty of Maker to pay
all obligations when due, and it will not affect or impair the right of Payee to
pursue all remedies available to it hereunder or under the other Loan Documents.
Maker's failure to make any payment of principal under this Note on or
before the same becomes due and payable on maturity hereof, or Maker's failure
to make any payment of interest under this Note, or any fees, costs or expenses
due hereunder or under the Loan Agreement, within 5 days after the same become
due and payable, will constitute an Event of Default. Other events that
constitute Events of Default are as described in the Loan Agreement. Following
an Event of Default, the amount of each Advance will, at the option of Payee,
accrue interest from the date of Default at the Default Rate. In addition to any
other remedies that Payee may have hereunder or under the Loan Agreement, any
payment of interest that is not made within 10 days after the due date thereof,
as provided herein, or such longer period as may be required under applicable
laws of any State if the laws of such State are determined to govern this Note,
will be subject to a Late Charge which will be due and payable contemporaneously
with such payment of interest.
Following an Event of Default, at Payee's option, in addition to
Payee's remedies set forth in any other Loan Documents or as may be available to
Payee at law or in equity, Payee may by written notice to Maker, declare this
Note, all accrued and unpaid interest thereon, and all other amounts payable
under the Loan Documents to be, and the same will thereupon become, immediately
due and payable without presentment, demand, protest or other notice or
formality of any kind, all of which are hereby expressly waived by Maker.
Forbearance to exercise this right with respect to any failure or breach of
Maker will not constitute a waiver of the right as to any subsequent failure or
breach.
This Note is secured by the Collateral, and subject to the terms,
covenants and conditions of the Loan Documents. The terms, covenants and
conditions of the Loan Documents are by this reference incorporated into this
Note. Advances under this Note will be governed by the terms, covenants, and
conditions set forth in the Loan Documents.
3 of 5
<PAGE> 4
A default under any of the Loan Documents which is not cured within any
applicable grace period as provided therein will constitute a default under this
Note.
Maker covenants and agrees to pay all and singular the costs, taxes,
fees, and expenses of every kind and nature, including Agent's and/or Payee's
reasonable attorneys' and paralegals' fees and costs (including those incurred
on appeal or in bankruptcy proceedings), documentary stamp taxes, intangible
taxes and other excise taxes, and the cost of title evidence, incurred or
expended at any time by Payee in the collection of the loan evidenced hereby
and/or foreclosure of the Loan Documents or otherwise incurred in protecting and
preserving the lien of the Loan Documents or in enforcing Agent's and/or Payee's
rights under this Note, the Loan Documents or under any other instrument
evidencing or securing the indebtedness evidenced hereby, or in enforcing,
sustaining, protecting, or defending the lien or priority of the Loan Documents
against any and all persons, including, but not limited to, lien claimants or
the exercise of the power of eminent domain or other governmental power of any
kind.
Maker, including any guarantor or endorser, for themselves, their
heirs, legal representatives, successors, and assigns, respectively, hereby
expressly waive presentment, demand for payment, notice of dishonor, protest,
notice of non-payment, and diligence in collection, and consent that the time of
all payments or any part thereof may be extended, rearranged, renewed or
postponed by Payee, and further consent that the Collateral or any part thereof
may be released, exchanged, or substituted by Payee, without in anyway
modifying, altering, releasing, affecting, or limiting their respective
liability or the lien of any security instrument, and agree that Payee will not
be required first to institute any suit, or to exhaust any of its remedies
against Maker or any other person or party liable hereunder, in order to enforce
payment of this Note.
This Note is to be construed and enforced according to the laws of the
State of North Carolina and the laws and regulations of the United States of
America.
All agreements between Maker and Payee are expressly limited so that in
no contingency or event whatsoever, whether by reason of advancement of the
proceeds hereof, acceleration of maturity of the unpaid principal balance
hereof, or otherwise, will the amount paid or agreed to be paid to Payee for the
use, forbearance, or detention of the money to be advanced hereunder exceed the
highest lawful rate permissible under any law which a court of competent
jurisdiction may deem applicable hereto. If, from any circumstances whatsoever,
fulfillment of any provision of this Note or the Loan Documents securing this
Note, or by any other agreement referred to therein, at the time performance of
such provision will be due, will involve transcending the limit of validity
prescribed by law which a court of competent jurisdiction may deem applicable
thereto, then ipso facto, the obligation to be fulfilled will be reduced to the
maximum limit of such validity, and if for any circumstances whatsoever Payee
will ever receive interest, the amount of which would exceed the highest lawful
rate, such amount which would be excessive interest will be applied to the
reduction of the principal balance remaining unpaid hereunder and not to the
payment of interest or if such excessive interest exceeds such principal
balance, refunded
4 of 5
<PAGE> 5
to Maker. At all times thereafter the rate of interest in effect under this Note
will continue at such maximum rate until otherwise adjusted in accordance with
the terms of this Note and the Loan Agreement. The provisions of this paragraph
will control every other provision of all agreements between Maker and Payee.
MAKER AND PAYEE, BY ITS ACCEPTANCE HEREOF, EACH ACKNOWLEDGE AND AGREE
THAT NEITHER MAKER NOR PAYEE, NOR ANY ENDORSER, ASSIGNEE, SUCCESSOR, HEIR OR
LEGAL REPRESENTATIVE OF ANY OF THE SAME, WILL SEEK (AND HEREBY WAIVES ANY RIGHT
TO) A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER
LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS NOTE, THE LOAN AGREEMENT
OR THE LOAN DOCUMENTS, ANY COLLATERAL, OR THE DEALINGS OR THE RELATIONSHIP
BETWEEN MAKER AND PAYEE RELATED THERETO. NEITHER OF THE PARTIES WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY
MAKER AND PAYEE, ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND
CONSTITUTE A MATERIAL INDUCEMENT FOR PAYEE TO MAKE THE LOAN EVIDENCED BY THIS
NOTE TO MAKER, AND WILL BE SUBJECT TO NO EXCEPTIONS.
Signed, sealed and delivered in the KOGER EQUITY, INC., a Florida
presence of: corporation
/s/ Janice R. Long By: /s/ G. Danny Edwards
- ----------------------------------- ----------------------------
Unofficial Witness Name: G. Danny Edwards
--------------------------
Title: Treasurer
-------------------------
/s/ Dee Price
- -----------------------------------
Notary Public Attest: /s/ W. Lawrence Jenkins
-----------------------
Name: W. Lawrence Jenkins
-------------------------
Title: Corporate Secretary
-------------------------
My Commission Expires: Feb. 1, 1999 [CORPORATE SEAL]
Notary Public, Camden County, Georgia
- -------------------------------------
[NOTARY SEAL]
5 of 5
<PAGE> 1
EXHIBIT 10(k)(2)(c)
SUBSTITUTION REVOLVING PROMISSORY NOTE
$35,000,000.00 St. Marys, Georgia
December 30, 1998
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the
order of GUARANTY FEDERAL BANK, F.S.B., a federal savings bank ("Payee"), which
term will include any subsequent holder hereof, at the offices of First Union
National Bank ("Agent") located at 301 South College Street, Charlotte, North
Carolina 28288, or at such other place as Agent may designate in writing from
time to time, in legal tender of the United States of America, the principal sum
of THIRTY-FIVE MILLION AND NO/100 DOLLARS ($35,000,000.00) or so much thereof as
may be outstanding from time to time as Advances (the "Principal Amount")
pursuant to that certain Second Amended and Restated Revolving Credit Loan
Agreement dated December 30, 1998 between Maker, as borrower, and Agent, as
Agent for the Lenders (the "Loan Agreement"), and all applicable fees, charges,
costs and expenses, together with interest on each Advance at the applicable
rate(s) of interest as provided below. The Loan Agreement by this reference is
hereby incorporated into this Note to the same extent as if fully set forth
herein. Capitalized terms not otherwise defined in this Note will have the
meanings assigned to such terms in the Loan Agreement.
Interest on each Advance outstanding under this Note from time to time
will accrue, at Maker's election, at a LIBOR Interest Rate or the Base Rate (as
defined below), subject to the terms, covenants and conditions of the Loan
Agreement. Absent an Event of Default, the rate of interest charged on each
LIBOR Advance will remain constant during the Interest Period elected for such
LIBOR Advance, but will be adjusted based on any change in the LIBOR Interest
Rate for any subsequent Interest Period applicable to such LIBOR Advance, and
the rate of interest charged on each Base Rate Advance will be adjusted on a
daily basis upon any changes in the Base Rate.
For purposes of the foregoing, the following terms will have the
meanings assigned to such terms as set forth below:
(a) "LIBOR" means the interest rate at which 30-day, 60-day,
90-day or 180-day deposits (as elected by Maker) in United
States dollars are offered to prime banks in the London
interbank market which appears on Reuters Screen FRBD as of
11:00 A.M. (London time), 2 Business Days before the Funding
Date of any LIBOR Advance (or if not so reported, then as
determined by
- --------
NOTE: THIS SUBSTITUTION REVOLVING PROMISSORY NOTE SUBSTITUTES AND
REPLACES THAT CERTAIN REVOLVING PROMISSORY NOTE FROM MAKER TO
PAYEE DATED DECEMBER 29, 1997.
1 of 5
<PAGE> 2
Agent from another recognized source or interbank quotation)
in an amount approximately equal or comparable to such LIBOR
Advance with a maturity equal to such Interest Period, as
adjusted for reserves by dividing that rate by 1.00 minus the
Reserve Requirement, if any.
(b) "LIBOR Interest Rate" means an annual rate of interest
calculated on the basis of a 360 day year which is equivalent
to LIBOR (as elected by Maker) plus the applicable margin
based upon the Maker's leverage based on the most recent
quarter's Borrowing Compliance Certificate measured on a
quarterly basis in accordance with Section 3.1(a)(vi) under
the Loan Agreement ("Borrower's Leverage"). The applicable
margins ("Applicable Margins") are as follows:
(i) if Borrower's Leverage is equal to or less than .30:1.00
the LIBOR Interest Rate shall equal LIBOR plus 1.30% per annum;
(ii) if Borrower's Leverage is greater than .30:1.00 and less
than or equal to .45:1.00, the LIBOR Interest Rate shall equal LIBOR
plus 1.45% per annum; and
(iii) if Borrower's Leverage is greater than .45:1.00 and less
than or equal to .55:1.00 the LIBOR Interest Rate shall equal LIBOR
plus 1.60% per annum.
(c) "Base Rate" means an annual rate of interest equivalent to the
interest rate (but not necessarily the best or lowest rate
charged borrowing customers of First Union National Bank)
published or announced by First Union National Bank from time
to time as its prime rate, calculated on the basis of a 365
(or 366, if applicable) day year.
All accrued but unpaid interest on the Principal Amount will be due and
payable monthly, commencing on January 10, 1999, and continuing on the 10th day
of each successive calendar month until this Note is fully paid.
If not sooner paid in full, the entire Principal Amount, together with
all accrued and unpaid interest, and any and all fees, costs, and expenses
hereunder, will be due and payable on December 30, 2001 (the "Maturity Date").
Subject to the terms, covenants and conditions of the Loan Agreement
and this Note, the Principal Amount may be repaid and reborrowed from time to
time upon Maker's request; provided, however, that Payee will have no obligation
to make any Advances if a Default or Event of Default exists.
TIME IS OF THE ESSENCE of this Note.
THE LOAN EVIDENCED BY THIS NOTE IS PAYABLE IN FULL ON THE MATURITY
DATE. MAKER MUST REPAY THE ENTIRE OUTSTANDING PRINCIPAL
2 of 5
<PAGE> 3
BALANCE OF THIS NOTE AND UNPAID INTEREST THEN DUE. PAYEE IS UNDER NO
OBLIGATION TO REFINANCE THE LOAN AT THAT TIME.
Unless Maker prior to or contemporaneously with the repayment or
prepayment of all or any portion of the Principal Amount designates in writing
to Payee the Advance that should be credited with such repayment or prepayment,
such repayment or prepayment will be applied by Payee to Advances on a
first-borrowed, first-repaid basis. Absent an Event of Default, any payments
received for application to any Advance, or as applied by Payee to any Advance,
as provided above, will be applied to the principal balance of such Advance;
provided, however, that if an Event of Default then exists, Payee may apply such
repayment or prepayment first to late charges and fees, then to interest to the
extent accrued, and then to the principal balance of such Advance, or in such
other manner as Payee may elect. Repayments and prepayments of any Advances
accruing interest at a LIBOR Interest Rate may be subject to a charge pursuant
to Section 2.5 of the Loan Agreement. Repayments and prepayments of any Advances
accruing interest at the Base Rate may be made without premium or penalty.
Prepayment in part will not affect, vary or postpone the duty of Maker to pay
all obligations when due, and it will not affect or impair the right of Payee to
pursue all remedies available to it hereunder or under the other Loan Documents.
Maker's failure to make any payment of principal under this Note on or
before the same becomes due and payable on maturity hereof, or Maker's failure
to make any payment of interest under this Note, or any fees, costs or expenses
due hereunder or under the Loan Agreement, within 5 days after the same become
due and payable, will constitute an Event of Default. Other events that
constitute Events of Default are as described in the Loan Agreement. Following
an Event of Default, the amount of each Advance will, at the option of Payee,
accrue interest from the date of Default at the Default Rate. In addition to any
other remedies that Payee may have hereunder or under the Loan Agreement, any
payment of interest that is not made within 10 days after the due date thereof,
as provided herein, or such longer period as may be required under applicable
laws of any State if the laws of such State are determined to govern this Note,
will be subject to a Late Charge which will be due and payable contemporaneously
with such payment of interest.
Following an Event of Default, at Payee's option, in addition to
Payee's remedies set forth in any other Loan Documents or as may be available to
Payee at law or in equity, Payee may by written notice to Maker, declare this
Note, all accrued and unpaid interest thereon, and all other amounts payable
under the Loan Documents to be, and the same will thereupon become, immediately
due and payable without presentment, demand, protest or other notice or
formality of any kind, all of which are hereby expressly waived by Maker.
Forbearance to exercise this right with respect to any failure or breach of
Maker will not constitute a waiver of the right as to any subsequent failure or
breach.
This Note is secured by the Collateral, and subject to the terms,
covenants and conditions of the Loan Documents. The terms, covenants and
conditions of the Loan
3 of 5
<PAGE> 4
Documents are by this reference incorporated into this Note. Advances under this
Note will be governed by the terms, covenants, and conditions set forth in the
Loan Documents. A default under any of the Loan Documents which is not cured
within any applicable grace period as provided therein will constitute a default
under this Note.
Maker covenants and agrees to pay all and singular the costs, taxes,
fees, and expenses of every kind and nature, including Agent's and/or Payee's
reasonable attorneys' and paralegals' fees and costs (including those incurred
on appeal or in bankruptcy proceedings), documentary stamp taxes, intangible
taxes and other excise taxes, and the cost of title evidence, incurred or
expended at any time by Payee in the collection of the loan evidenced hereby
and/or foreclosure of the Loan Documents or otherwise incurred in protecting and
preserving the lien of the Loan Documents or in enforcing Agent's and/or Payee's
rights under this Note, the Loan Documents or under any other instrument
evidencing or securing the indebtedness evidenced hereby, or in enforcing,
sustaining, protecting, or defending the lien or priority of the Loan Documents
against any and all persons, including, but not limited to, lien claimants or
the exercise of the power of eminent domain or other governmental power of any
kind.
Maker, including any guarantor or endorser, for themselves, their
heirs, legal representatives, successors, and assigns, respectively, hereby
expressly waive presentment, demand for payment, notice of dishonor, protest,
notice of non-payment, and diligence in collection, and consent that the time of
all payments or any part thereof may be extended, rearranged, renewed or
postponed by Payee, and further consent that the Collateral or any part thereof
may be released, exchanged, or substituted by Payee, without in anyway
modifying, altering, releasing, affecting, or limiting their respective
liability or the lien of any security instrument, and agree that Payee will not
be required first to institute any suit, or to exhaust any of its remedies
against Maker or any other person or party liable hereunder, in order to enforce
payment of this Note.
This Note is to be construed and enforced according to the laws of the
State of North Carolina and the laws and regulations of the United States of
America.
All agreements between Maker and Payee are expressly limited so that in
no contingency or event whatsoever, whether by reason of advancement of the
proceeds hereof, acceleration of maturity of the unpaid principal balance
hereof, or otherwise, will the amount paid or agreed to be paid to Payee for the
use, forbearance, or detention of the money to be advanced hereunder exceed the
highest lawful rate permissible under any law which a court of competent
jurisdiction may deem applicable hereto. If, from any circumstances whatsoever,
fulfillment of any provision of this Note or the Loan Documents securing this
Note, or by any other agreement referred to therein, at the time performance of
such provision will be due, will involve transcending the limit of validity
prescribed by law which a court of competent jurisdiction may deem applicable
thereto, then ipso facto, the obligation to be fulfilled will be reduced to the
maximum limit of such validity, and if for any circumstances whatsoever Payee
will ever receive interest, the amount of which would exceed the highest lawful
rate, such amount which would be excessive interest will be
4 of 5
<PAGE> 5
applied to the reduction of the principal balance remaining unpaid hereunder and
not to the payment of interest or if such excessive interest exceeds such
principal balance, refunded to Maker. At all times thereafter the rate of
interest in effect under this Note will continue at such maximum rate until
otherwise adjusted in accordance with the terms of this Note and the Loan
Agreement. The provisions of this paragraph will control every other provision
of all agreements between Maker and Payee.
MAKER AND PAYEE, BY ITS ACCEPTANCE HEREOF, EACH ACKNOWLEDGE AND AGREE
THAT NEITHER MAKER NOR PAYEE, NOR ANY ENDORSER, ASSIGNEE, SUCCESSOR, HEIR OR
LEGAL REPRESENTATIVE OF ANY OF THE SAME, WILL SEEK (AND HEREBY WAIVES ANY RIGHT
TO) A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER
LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS NOTE, THE LOAN AGREEMENT
OR THE LOAN DOCUMENTS, ANY COLLATERAL, OR THE DEALINGS OR THE RELATIONSHIP
BETWEEN MAKER AND PAYEE RELATED THERETO. NEITHER OF THE PARTIES WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY
MAKER AND PAYEE, ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND
CONSTITUTE A MATERIAL INDUCEMENT FOR PAYEE TO MAKE THE LOAN EVIDENCED BY THIS
NOTE TO MAKER, AND WILL BE SUBJECT TO NO EXCEPTIONS.
Signed, sealed and delivered in the KOGER EQUITY, INC., a Florida
presence of: corporation
/s/ Janice R. Long By: /s/ G. Danny Edwards
- ----------------------------------- ----------------------------
Unofficial Witness Name: G. Danny Edwards
--------------------------
Title: Treasurer
-------------------------
/s/ Dee Price
- -----------------------------------
Notary Public Attest: /s/ W. Lawrence Jenkins
-------------------------
Name: W. Lawrence Jenkins
-------------------------
Title: Corporate Secretary
------------------------
My Commission Expires: Feb. 1, 1999 [CORPORATE SEAL]
Notary Public, Camden County, Georgia
- -------------------------------------
[NOTARY SEAL]
5 of 5
<PAGE> 1
EXHIBIT 10(K)(2)(D)
REVOLVING PROMISSORY NOTE
$20,000,000.00 St. Marys, Georgia
December 30, 1998
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the
order of CITIZENS BANK OF RHODE ISLAND, a Rhode Island financial institution
("Payee"), which term will include any subsequent holder hereof, at the offices
of First Union National Bank ("Agent") located at 301 South College Street,
Charlotte, North Carolina 28288, or at such other place as Agent may designate
in writing from time to time, in legal tender of the United States of America,
the principal sum of TWENTY MILLION AND NO/100 DOLLARS ($20,000,000.00) or so
much thereof as may be outstanding from time to time as Advances (the "Principal
Amount") pursuant to that certain Second Amended and Restated Revolving Credit
Loan Agreement dated December 30, 1998 between Maker, as borrower, and Agent, as
Agent for the Lenders (the "Loan Agreement"), and all applicable fees, charges,
costs and expenses, together with interest on each Advance at the applicable
rate(s) of interest as provided below. The Loan Agreement by this reference is
hereby incorporated into this Note to the same extent as if fully set forth
herein. Capitalized terms not otherwise defined in this Note will have the
meanings assigned to such terms in the Loan Agreement.
Interest on each Advance outstanding under this Note from time to time
will accrue, at Maker's election, at a LIBOR Interest Rate or the Base Rate (as
defined below), subject to the terms, covenants and conditions of the Loan
Agreement. Absent an Event of Default, the rate of interest charged on each
LIBOR Advance will remain constant during the Interest Period elected for such
LIBOR Advance, but will be adjusted based on any change in the LIBOR Interest
Rate for any subsequent Interest Period applicable to such LIBOR Advance, and
the rate of interest charged on each Base Rate Advance will be adjusted on a
daily basis upon any changes in the Base Rate.
For purposes of the foregoing, the following terms will have the
meanings assigned to such terms as set forth below:
(a) "LIBOR" means the interest rate at which 30-day, 60-day,
90-day or 180-day deposits (as elected by Maker) in United
States dollars are offered to prime banks in the London
interbank market which appears on Reuters Screen FRBD as of
11:00 A.M. (London time), 2 Business Days before the Funding
Date of any LIBOR Advance (or if not so reported, then as
determined by Agent from another recognized source or
interbank quotation) in an amount approximately equal or
comparable to such LIBOR Advance with a maturity equal to such
Interest Period, as adjusted for reserves by dividing that
rate by 1.00 minus the Reserve Requirement, if any.
1 of 5
<PAGE> 2
(b) "LIBOR Interest Rate" means an annual rate of interest
calculated on the basis of a 360 day year which is equivalent
to LIBOR (as elected by Maker) plus the applicable margin
based upon the Maker's leverage based on the most recent
quarter's Borrowing Compliance Certificate measured on a
quarterly basis in accordance with Section 3.1(a)(vi) under
the Loan Agreement ("Borrower's Leverage"). The applicable
margins ("Applicable Margins") are as follows:
(i) if Borrower's Leverage is equal to or less than .30:1.00
the LIBOR Interest Rate shall equal LIBOR plus 1.30% per annum;
(ii) if Borrower's Leverage is greater than .30:1.00 and less
than or equal to .45:1.00, the LIBOR Interest Rate shall equal LIBOR
plus 1.45% per annum; and
(iii) if Borrower's Leverage is greater than .45:1.00 and less
than or equal to .55:1.00 the LIBOR Interest Rate shall equal LIBOR
plus 1.60% per annum.
(c) "Base Rate" means an annual rate of interest equivalent to the
interest rate (but not necessarily the best or lowest rate
charged borrowing customers of First Union National Bank)
published or announced by First Union National Bank from time
to time as its prime rate, calculated on the basis of a 365
(or 366, if applicable) day year.
All accrued but unpaid interest on the Principal Amount will be due and
payable monthly, commencing on January 10, 1999, and continuing on the 10th day
of each successive calendar month until this Note is fully paid.
If not sooner paid in full, the entire Principal Amount, together with
all accrued and unpaid interest, and any and all fees, costs, and expenses
hereunder, will be due and payable on December 30, 2001 (the "Maturity Date").
Subject to the terms, covenants and conditions of the Loan Agreement
and this Note, the Principal Amount may be repaid and reborrowed from time to
time upon Maker's request; provided, however, that Payee will have no obligation
to make any Advances if a Default or Event of Default exists.
TIME IS OF THE ESSENCE of this Note.
THE LOAN EVIDENCED BY THIS NOTE IS PAYABLE IN FULL ON THE MATURITY
DATE. MAKER MUST REPAY THE ENTIRE OUTSTANDING PRINCIPAL BALANCE OF THIS NOTE AND
UNPAID INTEREST THEN DUE. PAYEE IS UNDER NO OBLIGATION TO REFINANCE THE LOAN AT
THAT TIME.
Unless Maker prior to or contemporaneously with the repayment or
prepayment of all or any portion of the Principal Amount designates in writing
to Payee the Advance that
2 of 5
<PAGE> 3
should be credited with such repayment or prepayment, such repayment or
prepayment will be applied by Payee to Advances on a first-borrowed,
first-repaid basis. Absent an Event of Default, any payments received for
application to any Advance, or as applied by Payee to any Advance, as provided
above, will be applied to the principal balance of such Advance; provided,
however, that if an Event of Default then exists, Payee may apply such repayment
or prepayment first to late charges and fees, then to interest to the extent
accrued, and then to the principal balance of such Advance, or in such other
manner as Payee may elect. Repayments and prepayments of any Advances accruing
interest at a LIBOR Interest Rate may be subject to a charge pursuant to Section
2.5 of the Loan Agreement. Repayments and prepayments of any Advances accruing
interest at the Base Rate may be made without premium or penalty. Prepayment in
part will not affect, vary or postpone the duty of Maker to pay all obligations
when due, and it will not affect or impair the right of Payee to pursue all
remedies available to it hereunder or under the other Loan Documents.
Maker's failure to make any payment of principal under this Note on or
before the same becomes due and payable on maturity hereof, or Maker's failure
to make any payment of interest under this Note, or any fees, costs or expenses
due hereunder or under the Loan Agreement, within 5 days after the same become
due and payable, will constitute an Event of Default. Other events that
constitute Events of Default are as described in the Loan Agreement. Following
an Event of Default, the amount of each Advance will, at the option of Payee,
accrue interest from the date of Default at the Default Rate. In addition to any
other remedies that Payee may have hereunder or under the Loan Agreement, any
payment of interest that is not made within 10 days after the due date thereof,
as provided herein, or such longer period as may be required under applicable
laws of any State if the laws of such State are determined to govern this Note,
will be subject to a Late Charge which will be due and payable contemporaneously
with such payment of interest.
Following an Event of Default, at Payee's option, in addition to
Payee's remedies set forth in any other Loan Documents or as may be available to
Payee at law or in equity, Payee may by written notice to Maker, declare this
Note, all accrued and unpaid interest thereon, and all other amounts payable
under the Loan Documents to be, and the same will thereupon become, immediately
due and payable without presentment, demand, protest or other notice or
formality of any kind, all of which are hereby expressly waived by Maker.
Forbearance to exercise this right with respect to any failure or breach of
Maker will not constitute a waiver of the right as to any subsequent failure or
breach.
This Note is secured by the Collateral, and subject to the terms,
covenants and conditions of the Loan Documents. The terms, covenants and
conditions of the Loan Documents are by this reference incorporated into this
Note. Advances under this Note will be governed by the terms, covenants, and
conditions set forth in the Loan Documents. A default under any of the Loan
Documents which is not cured within any applicable grace period as provided
therein will constitute a default under this Note.
3 of 5
<PAGE> 4
Maker covenants and agrees to pay all and singular the costs, taxes,
fees, and expenses of every kind and nature, including Agent's and/or Payee's
reasonable attorneys' and paralegals' fees and costs (including those incurred
on appeal or in bankruptcy proceedings), documentary stamp taxes, intangible
taxes and other excise taxes, and the cost of title evidence, incurred or
expended at any time by Payee in the collection of the loan evidenced hereby
and/or foreclosure of the Loan Documents or otherwise incurred in protecting and
preserving the lien of the Loan Documents or in enforcing Agent's and/or Payee's
rights under this Note, the Loan Documents or under any other instrument
evidencing or securing the indebtedness evidenced hereby, or in enforcing,
sustaining, protecting, or defending the lien or priority of the Loan Documents
against any and all persons, including, but not limited to, lien claimants or
the exercise of the power of eminent domain or other governmental power of any
kind.
Maker, including any guarantor or endorser, for themselves, their
heirs, legal representatives, successors, and assigns, respectively, hereby
expressly waive presentment, demand for payment, notice of dishonor, protest,
notice of non-payment, and diligence in collection, and consent that the time of
all payments or any part thereof may be extended, rearranged, renewed or
postponed by Payee, and further consent that the Collateral or any part thereof
may be released, exchanged, or substituted by Payee, without in anyway
modifying, altering, releasing, affecting, or limiting their respective
liability or the lien of any security instrument, and agree that Payee will not
be required first to institute any suit, or to exhaust any of its remedies
against Maker or any other person or party liable hereunder, in order to enforce
payment of this Note.
This Note is to be construed and enforced according to the laws of the
State of North Carolina and the laws and regulations of the United States of
America.
All agreements between Maker and Payee are expressly limited so that in
no contingency or event whatsoever, whether by reason of advancement of the
proceeds hereof, acceleration of maturity of the unpaid principal balance
hereof, or otherwise, will the amount paid or agreed to be paid to Payee for the
use, forbearance, or detention of the money to be advanced hereunder exceed the
highest lawful rate permissible under any law which a court of competent
jurisdiction may deem applicable hereto. If, from any circumstances whatsoever,
fulfillment of any provision of the Loan Documents securing this Note, or by any
other agreement referred to therein, at the time performance of such provision
will be due, will involve transcending the limit of validity prescribed by law
which a court of competent jurisdiction may deem applicable thereto, then ipso
facto, the obligation to be fulfilled will be reduced to the maximum limit of
such validity, and if for any circumstances whatsoever Payee will ever receive
interest, the amount of which would exceed the highest lawful rate, such amount
which would be excessive interest will be applied to the reduction of the
principal balance remaining unpaid hereunder and not to the payment of interest.
At all times thereafter the rate of interest in effect under this Note will
continue at such maximum rate until otherwise adjusted in accordance with the
terms of this Note and the Loan Agreement. The provisions of this paragraph will
control every other provision of all agreements between Maker and Payee.
4 of 5
<PAGE> 5
MAKER AND PAYEE, BY ITS ACCEPTANCE HEREOF, EACH ACKNOWLEDGE AND AGREE
THAT NEITHER MAKER NOR PAYEE, NOR ANY ENDORSER, ASSIGNEE, SUCCESSOR, HEIR OR
LEGAL REPRESENTATIVE OF ANY OF THE SAME, WILL SEEK (AND HEREBY WAIVES ANY RIGHT
TO) A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER
LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS NOTE, THE LOAN AGREEMENT
OR THE LOAN DOCUMENTS, ANY COLLATERAL, OR THE DEALINGS OR THE RELATIONSHIP
BETWEEN MAKER AND PAYEE RELATED THERETO. NEITHER OF THE PARTIES WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY
MAKER AND PAYEE, ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND
CONSTITUTE A MATERIAL INDUCEMENT FOR PAYEE TO MAKE THE LOAN EVIDENCED BY THIS
NOTE TO MAKER, AND WILL BE SUBJECT TO NO EXCEPTIONS.
Signed, sealed and delivered in the KOGER EQUITY, INC., a Florida
presence of: corporation
/s/ Janice R. Long By:/s/ G. Danny Edwards
- ------------------ ----------------------------
Unofficial Witness Name: G. Danny Edwards
--------------------------
Title: Treasurer
--------------------------
/s/ Dee Price
- ------------------
Notary Public Attest: /s/ W. Lawrence Jenkins
------------------------
Name: W. Lawrence Jenkins
--------------------------
Title: Corporate Secretary
-------------------------
My Commission Expires: Feb. 1, 1999 [CORPORATE SEAL]
Notary Public, Camden County, Georgia
- -------------------------------------
[NOTARY SEAL]
5 of 5
<PAGE> 1
EXHIBIT 10(k)(2)(e)
REVOLVING PROMISSORY NOTE
$15,000,000.00 St. Marys, Georgia
December 30, 1998
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the
order of COMPASS BANK, an Alabama banking corporation ("Payee"), which term will
include any subsequent holder hereof, at the offices of First Union National
Bank ("Agent") located at 301 South College Street, Charlotte, North Carolina
28288, or at such other place as Agent may designate in writing from time to
time, in legal tender of the United States of America, the principal sum of
FIFTEEN MILLION AND NO/100 DOLLARS ($15,000,000.00) or so much thereof as may be
outstanding from time to time as Advances (the "Principal Amount") pursuant to
that certain Second Amended and Restated Revolving Credit Loan Agreement dated
December 30, 1998 between Maker, as borrower, and Agent, as Agent for the
Lenders (the "Loan Agreement"), and all applicable fees, charges, costs and
expenses, together with interest on each Advance at the applicable rate(s) of
interest as provided below. The Loan Agreement by this reference is hereby
incorporated into this Note to the same extent as if fully set forth herein.
Capitalized terms not otherwise defined in this Note will have the meanings
assigned to such terms in the Loan Agreement.
Interest on each Advance outstanding under this Note from time to time
will accrue, at Maker's election, at a LIBOR Interest Rate or the Base Rate (as
defined below), subject to the terms, covenants and conditions of the Loan
Agreement. Absent an Event of Default, the rate of interest charged on each
LIBOR Advance will remain constant during the Interest Period elected for such
LIBOR Advance, but will be adjusted based on any change in the LIBOR Interest
Rate for any subsequent Interest Period applicable to such LIBOR Advance, and
the rate of interest charged on each Base Rate Advance will be adjusted on a
daily basis upon any changes in the Base Rate.
For purposes of the foregoing, the following terms will have the
meanings assigned to such terms as set forth below:
(a) "LIBOR" means the interest rate at which 30-day, 60-day,
90-day or 180-day deposits (as elected by Maker) in United
States dollars are offered to prime banks in the London
interbank market which appears on Reuters Screen FRBD as of
11:00 A.M. (London time), 2 Business Days before the Funding
Date of any LIBOR Advance (or if not so reported, then as
determined by Agent from another recognized source or
interbank quotation) in an amount approximately equal or
comparable to such LIBOR Advance with a maturity equal to such
Interest Period, as adjusted for reserves by dividing that
rate by 1.00 minus the Reserve Requirement, if any.
(b) "LIBOR Interest Rate" means an annual rate of interest
calculated on the basis of a 360 day year which is equivalent
to LIBOR (as elected by Maker)
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plus the applicable margin based upon the Maker's leverage
based on the most recent quarter's Borrowing Compliance
Certificate measured on a quarterly basis in accordance with
Section 3.1(a)(vi) under the Loan Agreement ("Borrower's
Leverage"). The applicable margins ("Applicable Margins") are
as follows:
(i) if Borrower's Leverage is equal to or less than .30:1.00
the LIBOR Interest Rate shall equal LIBOR plus 1.30% per annum;
(ii) if Borrower's Leverage is greater than .30:1.00 and less
than or equal to .45:1.00, the LIBOR Interest Rate shall equal LIBOR
plus 1.45% per annum; and
(iii) if Borrower's Leverage is greater than .45:1.00 and less
than or equal to .55:1.00 the LIBOR Interest Rate shall equal LIBOR
plus 1.60% per annum.
(c) "Base Rate" means an annual rate of interest equivalent to the
interest rate (but not necessarily the best or lowest rate
charged borrowing customers of First Union National Bank)
published or announced by First Union National Bank from time
to time as its prime rate, calculated on the basis of a 365
(or 366, if applicable) day year.
All accrued but unpaid interest on the Principal Amount will be due and
payable monthly, commencing on January 10, 1999, and continuing on the 10th day
of each successive calendar month until this Note is fully paid.
If not sooner paid in full, the entire Principal Amount, together with
all accrued and unpaid interest, and any and all fees, costs, and expenses
hereunder, will be due and payable on December 30, 2001 (the "Maturity Date").
Subject to the terms, covenants and conditions of the Loan Agreement
and this Note, the Principal Amount may be repaid and reborrowed from time to
time upon Maker's request; provided, however, that Payee will have no obligation
to make any Advances if a Default or Event of Default exists.
TIME IS OF THE ESSENCE of this Note.
THE LOAN EVIDENCED BY THIS NOTE IS PAYABLE IN FULL ON THE
MATURITY DATE. MAKER MUST REPAY THE ENTIRE OUTSTANDING PRINCIPAL
BALANCE OF THIS NOTE AND UNPAID INTEREST THEN DUE. PAYEE IS UNDER NO
OBLIGATION TO REFINANCE THE LOAN AT THAT TIME.
Unless Maker prior to or contemporaneously with the repayment or
prepayment of all or any portion of the Principal Amount designates in writing
to Payee the Advance that should be credited with such repayment or prepayment,
such repayment or prepayment will be applied by Payee to Advances on a
first-borrowed, first-repaid basis. Absent an
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Event of Default, any payments received for application to any Advance, or as
applied by Payee to any Advance, as provided above, will be applied to the
principal balance of such Advance; provided, however, that if an Event of
Default then exists, Payee may apply such repayment or prepayment first to late
charges and fees, then to interest to the extent accrued, and then to the
principal balance of such Advance, or in such other manner as Payee may elect.
Repayments and prepayments of any Advances accruing interest at a LIBOR Interest
Rate may be subject to a charge pursuant to Section 2.5 of the Loan Agreement.
Repayments and prepayments of any Advances accruing interest at the Base Rate
may be made without premium or penalty. Prepayment in part will not affect, vary
or postpone the duty of Maker to pay all obligations when due, and it will not
affect or impair the right of Payee to pursue all remedies available to it
hereunder or under the other Loan Documents.
Maker's failure to make any payment of principal under this Note on or
before the same becomes due and payable on maturity hereof, or Maker's failure
to make any payment of interest under this Note, or any fees, costs or expenses
due hereunder or under the Loan Agreement, within 5 days after the same become
due and payable, will constitute an Event of Default. Other events that
constitute Events of Default are as described in the Loan Agreement. Following
an Event of Default, the amount of each Advance will, at the option of Payee,
accrue interest from the date of Default at the Default Rate. In addition to any
other remedies that Payee may have hereunder or under the Loan Agreement, any
payment of interest that is not made within 10 days after the due date thereof,
as provided herein, or such longer period as may be required under applicable
laws of any State if the laws of such State are determined to govern this Note,
will be subject to a Late Charge which will be due and payable contemporaneously
with such payment of interest.
Following an Event of Default, at Payee's option, in addition to
Payee's remedies set forth in any other Loan Documents or as may be available to
Payee at law or in equity, Payee may by written notice to Maker, declare this
Note, all accrued and unpaid interest thereon, and all other amounts payable
under the Loan Documents to be, and the same will thereupon become, immediately
due and payable without presentment, demand, protest or other notice or
formality of any kind, all of which are hereby expressly waived by Maker.
Forbearance to exercise this right with respect to any failure or breach of
Maker will not constitute a waiver of the right as to any subsequent failure or
breach.
This Note is secured by the Collateral, and subject to the terms,
covenants and conditions of the Loan Documents. The terms, covenants and
conditions of the Loan Documents are by this reference incorporated into this
Note. Advances under this Note will be governed by the terms, covenants, and
conditions set forth in the Loan Documents. A default under any of the Loan
Documents which is not cured within any applicable grace period as provided
therein will constitute a default under this Note.
Maker covenants and agrees to pay all and singular the costs, taxes,
fees, and expenses of every kind and nature, including Agent's and/or Payee's
reasonable attorneys'
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and paralegals' fees and costs (including those incurred on appeal or in
bankruptcy proceedings), documentary stamp taxes, intangible taxes and other
excise taxes, and the cost of title evidence, incurred or expended at any time
by Payee in the collection of the loan evidenced hereby and/or foreclosure of
the Loan Documents or otherwise incurred in protecting and preserving the lien
of the Loan Documents or in enforcing Agent's and/or Payee's rights under this
Note, the Loan Documents or under any other instrument evidencing or securing
the indebtedness evidenced hereby, or in enforcing, sustaining, protecting, or
defending the lien or priority of the Loan Documents against any and all
persons, including, but not limited to, lien claimants or the exercise of the
power of eminent domain or other governmental power of any kind.
Maker, including any guarantor or endorser, for themselves, their
heirs, legal representatives, successors, and assigns, respectively, hereby
expressly waive presentment, demand for payment, notice of dishonor, protest,
notice of non-payment, and diligence in collection, and consent that the time of
all payments or any part thereof may be extended, rearranged, renewed or
postponed by Payee, and further consent that the Collateral or any part thereof
may be released, exchanged, or substituted by Payee, without in anyway
modifying, altering, releasing, affecting, or limiting their respective
liability or the lien of any security instrument, and agree that Payee will not
be required first to institute any suit, or to exhaust any of its remedies
against Maker or any other person or party liable hereunder, in order to enforce
payment of this Note.
This Note is to be construed and enforced according to the laws of the
State of North Carolina and the laws and regulations of the United States of
America.
All agreements between Maker and Payee are expressly limited so that in
no contingency or event whatsoever, whether by reason of advancement of the
proceeds hereof, acceleration of maturity of the unpaid principal balance
hereof, or otherwise, will the amount paid or agreed to be paid to Payee for the
use, forbearance, or detention of the money to be advanced hereunder exceed the
highest lawful rate permissible under any law which a court of competent
jurisdiction may deem applicable hereto. If, from any circumstances whatsoever,
fulfillment of any provision of the Loan Documents securing this Note, or by any
other agreement referred to therein, at the time performance of such provision
will be due, will involve transcending the limit of validity prescribed by law
which a court of competent jurisdiction may deem applicable thereto, then ipso
facto, the obligation to be fulfilled will be reduced to the maximum limit of
such validity, and if for any circumstances whatsoever Payee will ever receive
interest, the amount of which would exceed the highest lawful rate, such amount
which would be excessive interest will be applied to the reduction of the
principal balance remaining unpaid hereunder and not to the payment of interest.
At all times thereafter the rate of interest in effect under this Note will
continue at such maximum rate until otherwise adjusted in accordance with the
terms of this Note and the Loan Agreement. The provisions of this paragraph will
control every other provision of all agreements between Maker and Payee.
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MAKER AND PAYEE, BY ITS ACCEPTANCE HEREOF, EACH ACKNOWLEDGE AND AGREE
THAT NEITHER MAKER NOR PAYEE, NOR ANY ENDORSER, ASSIGNEE, SUCCESSOR, HEIR OR
LEGAL REPRESENTATIVE OF ANY OF THE SAME, WILL SEEK (AND HEREBY WAIVES ANY RIGHT
TO) A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER
LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS NOTE, THE LOAN AGREEMENT
OR THE LOAN DOCUMENTS, ANY COLLATERAL, OR THE DEALINGS OR THE RELATIONSHIP
BETWEEN MAKER AND PAYEE RELATED THERETO. NEITHER OF THE PARTIES WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY
MAKER AND PAYEE, ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND
CONSTITUTE A MATERIAL INDUCEMENT FOR PAYEE TO MAKE THE LOAN EVIDENCED BY THIS
NOTE TO MAKER, AND WILL BE SUBJECT TO NO EXCEPTIONS.
Signed, sealed and delivered in the KOGER EQUITY, INC., a Florida
presence of: corporation
/s/ Janice R. Long By: /s/ G. Danny Edwards
- ------------------------------------ ----------------------------
Unofficial Witness Name: G. Danny Edwards
--------------------------
Title: Treasurer
-------------------------
/s/ Dee Price
- ------------------------------------
Notary Public Attest: /s/ W. Lawrence Jenkins
------------------------
Name: W. Lawrence Jenkins
--------------------------
Title: Corporate Secretary
-------------------------
My Commission Expires:Feb. 1, 1999 [CORPORATE SEAL]
Notary Public, Camden County, Georgia
- -------------------------------------
[NOTARY SEAL]
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<PAGE> 1
THIS INSTRUMENT PREPARED BY EXHIBIT 10(k)(3)(a)
AND RECORD AND RETURN TO:
Alan C. Sheppard, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, FL 32202-3650
- --------------------------------------------------------------------------------
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY
AGREEMENT
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK,
AS AGENT FOR THE LENDERS
<PAGE> 2
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY
AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT
(this "Mortgage"), dated as of December 30, 1998 from
KOGER EQUITY, INC., a Florida corporation ("Mortgagor"), whose mailing address
is 3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention
J.C. Teagle, President,
to
FIRST UNION NATIONAL BANK, a national association, as Agent for the Lenders (the
"Mortgagee") under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement (the "Loan Agreement"). For purposes of notices
permitted or required to be given hereunder, the Mortgagee's mailing address is
One First Union Center, 301 S. College Street, Attention: Real Estate Capital
Markets Group, Charlotte, North Carolina 28202.
Capitalized terms not otherwise defined herein are defined in Article I.
W I T N E S S E T H :
THIS MORTGAGE WITNESSETH, that to secure (A) the payment, performance
and observance of all obligations of Mortgagor and all Obligations heretofore or
hereafter from time to time advanced under the Loan Agreement and the payment of
any and all other Obligations which this Mortgage by its terms secures
including, without limitation, the payment of principal and interest on the
Notes which shall (1) be payable to Mortgagee, and (2) bear interest at a
floating rate as set forth in Section 2.6 of the Loan Agreement; provided, that
the maximum aggregate principal amount of Obligations secured hereby shall in no
event exceed $49,500,000.00 (the "Obligations"); and (B) the performance of the
covenants and agreements contained herein and in the Loan Agreement, and in
consideration of the aforesaid, Mortgagor hereby mortgages, grants a security
interest in, grants, bargains, sells, conveys and confirms unto Mortgagee, its
successors and assigns, the following property and rights whether now owned or
hereafter acquired by Mortgagor (collectively, the "Property"):
(i) the Land;
(ii) all buildings, structures and other improvements presently
situated or hereafter constructed on the Land (collectively, the
("Improvements");
(iii) all rights, privileges, tenements, hereditaments, rights of
way, easements, rights and appurtenances belonging to or in any way relating to
either the Land or the Improvements;
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(iv) All fixtures, machinery, equipment and other personal property
of all types owned by Mortgagor now or hereafter affixed to and used in
connection with the operation of the Land and Improvements, together with all
additions and accessions thereto, substitutions therefor and replacements
(collectively, the "Fixtures");
(v) all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Land, the Improvements or
the Fixtures, whether from the exercise of the right of eminent domain
(including, but not limited to any transfer made in lieu of or in anticipation
of the exercise of said right), or for a change of grade of any street, or for
any other injury to or decrease in the value of Mortgagor's rights, title or
interest in and to the Land, the Improvements or the Fixtures;
(vi) all leases and other agreements affecting the use, enjoyment
or occupancy of the Land, the Improvements or the Fixtures now or hereafter
entered into (the "Leases") and rents, revenues, issues and profits from the
Land, the Improvements or the Fixtures (the "Rents") and all proceeds from the
sale or other disposition of the Leases and the right to receive and apply the
Rents to the payment of the Obligations;
(vii) all proceeds of and any unearned premiums on any insurance
policies covering the Land, the Improvements or the Fixtures, including, without
limitation, the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Land, the
Improvements or the Fixtures; and
(viii) the right, in the name and on behalf of Mortgagor, to appear in
and defend any action or proceeding brought with respect to Mortgagor's right,
title or interest in and to the Land, the Improvements or the Fixtures and to
commence any action or proceeding to protect the interest of Mortgagee in the
Land, the Improvements or the Fixtures;
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, for the use, benefit and behoof of Mortgagee, IN FEE
SIMPLE forever.
PROVIDED ALWAYS and these presents are upon the express condition that
if Mortgagor will pay to Mortgagee the Obligations from time to time evidenced
and secured by the Notes and will promptly and fully perform, execute and
complete each and every covenant, agreement, obligation, condition and
stipulation contained in this Mortgage and the Notes, then this Mortgage and the
estate hereby created will cease and be null and void and cancelled of record;
otherwise the same will remain in full force and effect.
MORTGAGOR, FOR ITSELF AND FOR ITS SUCCESSORS AND ASSIGNS, HEREBY
WARRANTS, REPRESENTS, COVENANTS AND AGREES AS FOLLOWS:
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ARTICLE I
1. Definitions. As used in this Mortgage, the following
capitalized terms shall have the meanings set after them, such definitions to be
applicable equally to the singular and plural forms of such terms:
"AmSouth" shall mean AmSouth Bank, a state banking corporation.
"Citizens" shall mean Citizens Bank of Rhode Island, a Rhode Island
financial institution.
"Compass" shall mean Compass Bank, an Alabama banking corporation.
"Default" shall mean any condition or event which constitutes or which
would constitute an Event of Default either with or without notice or lapse of
time, or both.
"Default Rate" shall have the meaning assigned to such term in the Loan
Agreement.
"Event of Default" shall have the meaning assigned to such term in
Paragraph 5 of this Mortgage.
"FUNB" shall mean First Union National Bank, a national association.
"Fixtures" shall have the meaning assigned to such term in the Granting
Clause of this Mortgage.
"GFB" shall mean Guaranty Federal Bank, F.S.B., a federal savings bank.
"Governmental Requirements" shall have the meaning assigned to such
term in the Loan Agreement.
"Impositions" shall mean, collectively, all taxes of every kind and
nature (including real and personal property, income withholding, profits and
gross receipts taxes), all charges for any easement or agreement maintained for
the benefit of any of the Property, all general and special assessments, levies,
permits, inspection and license fees, all water and sewer rents and other
utility charges, all ground rents, and all other public charges whether of a
like or different nature, even if unforeseen or extraordinary, imposed upon or
assessed against Mortgagor, Mortgagee or any portion of the Property as a result
of or arising in respect of the acquisition, occupancy, leasing, use or
possession thereof, or any activity conducted on the Property (including,
without limitation, any gross income tax, sales tax or excise tax levied by any
governmental body on or with respect to the Rents).
"Improvements" shall have the meaning assigned to such term in the
Granting Clause of this Mortgage.
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"Land" shall mean those certain parcels of real property located in the
County of Jefferson, State of Alabama, as more particularly described in Exhibit
A attached hereto and incorporated herein.
"Leases" shall have the meaning assigned to such term in the Granting
Clause of this Mortgage.
"Lenders" shall mean FUNB, GFB, AmSouth, Compass, and Citizens, and any
other Lenders under the Credit Agreement from time to time.
"Loan Agreement" shall mean that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of even date herewith between Mortgagor
and Mortgagee.
"Loan Documents" shall mean collectively, the Notes, the Loan
Agreement, this Mortgage, and the Security Deeds, the Assignments of Leases, the
Assignments of Contracts, the Indemnification Agreements, as such terms and
documents are defined in the Loan Agreement, and any and all other loan
documents executed in connection with the Loan.
"Mortgagee" shall have the meaning assigned to such term in the
introductory paragraph of this Mortgage.
"Mortgage" shall mean this Mortgage, Assignment of Leases and Rents,
and Security Agreement.
"Mortgagor" shall have the meaning assigned to such term in the
introductory paragraph of this Mortgage.
"Notes" shall mean collectively, (i) the Substitution Revolving
Promissory Note dated as of even date herewith made by Mortgagor payable to the
order of FUNB in the principal amount of $45,000,000, (ii) the Substitution
Revolving Promissory Note dated as of even date herewith made by Mortgagor
payable to the order of AmSouth in the original principal amount of $35,000,000,
(iii) the Substitution Revolving Promissory Note dated as of even date herewith
made by Mortgagor payable to the order of GFB in the original principal amount
of $35,000,000, (iv) the Revolving Promissory Note dated as of even date
herewith made by Mortgagor payable to the order of Citizens in the original
principal amount of $20,000,000, and (v) the Revolving Promissory Note dated as
of even date herewith made by Mortgagor payable to the order of Compass in the
original principal amount of $15,000,000.
"Obligations" shall have the meaning assigned to such term in the
Granting Clause of this Mortgage.
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"Other Mortgage" shall mean any Security Deed (as defined in the Loan
Agreement) or mortgage, deed to secure debt, or deed of trust given by Mortgagor
to or in favor of Mortgagee to secure the Obligations, other than this Mortgage.
"Permitted Encumbrances" shall mean those covenants, restrictions,
reservations, liens, conditions and easements listed as exceptions to title as
set forth on Exhibit B attached hereto and incorporated herein.
"Person" shall mean any corporation, natural person, joint venture,
partnership, business trust, joint stock company, trust, unincorporated
organization, government or any department, agency or political subdivision
thereof.
"Property" shall have the meaning assigned to such term in the Granting
Clause of this Mortgage.
"Rents" shall have the meaning assigned to such term in the Granting
Clause of this Mortgage.
"State" shall mean the State of Alabama.
"Taking" shall mean a taking or voluntary conveyance during the term
hereof of all or part of the Property, or any interest therein or right accruing
thereto or use thereof, as the result of or in lieu or in anticipation of the
exercise of the right of condemnation or eminent domain.
ARTICLE II
2. Representatives and Warranties Regarding Mortgage. Mortgagor
represents and warrants to Mortgagee as follows:
(a) It will timely pay and perform the Obligations when due;
(b) It has full power, authority and legal right to execute and
deliver this Mortgage and to grant a mortgage of the Property;
(c) It holds good and marketable fee simple title to the Property;
(d) It has the legal right to convey and encumber the Property
subject to the Permitted Encumbrances and, at its expense, will warrant to
Mortgagee and will defend its title to the Property and the estate created by
this Mortgage against all claims and demands, and will maintain and preserve
such estate so long as the Obligations secured by this Mortgage remains
outstanding, subject, however, to the Permitted Encumbrances; and
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(e) This Mortgage constitutes a valid first mortgage of the
Property, subject to the Permitted Encumbrances.
ARTICLE III
3. Affirmative Covenants. Until this Mortgage and the estate
created hereby shall terminate in accordance with Paragraph 14.6 hereof,
Mortgagor shall comply with the following covenants:
(a) Recordation, Filing, Etc. At all times cause this Mortgage and
each amendment or modification hereof or supplement hereto (and such financing
statements covering the Property under the Uniform Commercial Code as in effect
in the State as may be necessary or appropriate) to be recorded, registered and
filed and kept recorded, registered and filed in such manner and in such places
as appropriate, and comply with all applicable statutes and regulations, in
order to establish, preserve and protect the estate created hereby and the
rights of Mortgagee hereunder. Mortgagor shall pay, or shall cause to be paid,
all taxes, fees and other charges incurred in connection with such recording,
registration, filing and compliance;
(b) Maintenance and Repairs. Keep and maintain the Property in
good order, repair and operating condition (ordinary wear and tear excepted) and
make all repairs and replacements necessary to that end;
(c) Payment of Impositions and Utility Charges. Pay all
Impositions while the same may be paid without fine, penalty, interest or
additional cost, unless the sale shall be contested in good faith and by
appropriate proceedings by Mortgagor in the manner permitted by the Loan
Agreement. Any Impositions which are payable in installments may be paid in
installments provided that Mortgagee is otherwise in compliance with the Loan
Agreement. Upon the written request of Mortgagee from time to time, Mortgagor
will furnish to Mortgagee official receipts or other satisfactory proof
evidencing such payments. In addition, Mortgagor will pay all utility charges as
required by the Loan Agreement. Mortgagor shall not be entitled to any credit on
the Obligations, by reason of the payment of any Imposition or utility charges
or any part thereof;
(d) Compliance with Governmental Requirements. Promptly (i) comply
with all Governmental Requirements unless the same shall be contested in good
faith and by appropriate proceedings by Mortgagor in the manner permitted by the
Loan Agreement, and (ii) procure, maintain and comply with all licenses or other
authorizations required for any use of the Property then being made, and for the
proper erection, installation, operation, repair and maintenance of the
Improvements and the Fixtures, or any part of either thereof;
(e) Insurance. Maintain insurance of the types and in the amounts
required by, and otherwise complying with the Loan Agreement and promptly
deliver, or cause to be
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<PAGE> 8
promptly delivered, to Mortgagee any certificates or evidence of such insurance
as required under the Loan Agreement;
(f) Damage, Destruction or Taking. In the event of any damage,
destruction or Taking affecting all or any portion of the Property, Mortgagor
shall give immediate written and oral notice thereof to Mortgagee and proceed in
accordance with the terms of the Loan Agreement. In case of any such material
damage, destruction or Taking, Mortgagee shall be entitled to hold all insurance
proceeds, payments or awards on account thereof, to the same extent Mortgagor
would be entitled thereto under the Loan Agreement, and Mortgagor hereby
irrevocably assigns to Mortgagee all of its rights to any such insurance
proceeds, payments or awards. With respect to a Taking, and in accordance with
its obligations under the Loan Agreement, Mortgagor will file or prosecute or
will cause to be filed or prosecuted in good faith and with due diligence what
would otherwise be its claim for any such award or payment and cause the same to
be collected and paid over to Mortgagee. At the sole cost and expense of
Mortgagor, Mortgagee may elect to monitor or participate in, and if reasonably
necessary, may hire independent legal counsel to represent Mortgagee in
connection with, any claim or the claims payment process. Mortgagor will pay or
cause to be paid all costs and expenses reasonably incurred in connection with
any Taking and the seeking and obtaining of any award or payment in respect
thereof. Unless an Event of Default shall have occurred under the Loan
Agreement, all sums so received by Mortgagee shall be applied in accordance with
the provisions of the Loan Agreement; and
(g) Notification of Default, Etc. Promptly after obtaining
knowledge thereof, notify Mortgagee of any Default hereunder or under the Loan
Agreement or of any action or proceeding materially and adversely affecting the
Property.
(h) Corporate Existence. Preserve and keep in full force and
effect its corporate existence, rights and franchises and privileges as a
corporation under the laws of the State of Alabama and comply with all laws
applicable to it, and do or cause to be done all things necessary to preserve
and to keep in full force and effect its right to own property in the State of
Alabama.
(i) Inspection. Permit the Beneficiary or its authorized
representatives to inspect the Property during usual business hours.
ARTICLE IV
4. Negative Covenants. Without the prior written consent of
Mortgagee, Mortgagor will not directly or indirectly create or permit to be
created or to remain and will discharge or will cause to be discharged any
mortgage, charge, lien or encumbrance on, or attachment or pledge of, or
conditional sale or other title retention agreement with respect to, the
Property or any part thereof, its interest or the interests of Mortgagee
therein, or the Rents or other sums payable pursuant to the Leases, except (i)
this Mortgage; (ii) the Permitted Encumbrances; (iii) easements, restrictions,
liens, charges and
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other encumbrances permitted by the Loan Agreement; (iv) liens being contested
in good faith and by appropriate proceedings in the manner permitted by the Loan
Agreement; and (v) liens arising out of or created by any statute, the discharge
of which cannot order the terms of such statute at the particular time be
effected by Mortgagor; provided, however, that any such statutory liens will
promptly be discharged as and when such discharge is possible or permissible.
Mortgagor shall have the right to grant, without the prior consent of Mortgagee,
any utility easement.
ARTICLE V
5. Events of Default. Any of the following events (each a
"Default") shall, following the passage of any grace or cure period as provided
below, constitute an Event of Default ("Event of Default"):
(a) Mortgagor shall fail to make any payment of principal under
any of the Notes on or before the same becomes due and payable on maturity
thereof; or Mortgagor shall fail to make any payment of interest under any of
the Notes, or any fees, costs or expenses due hereunder or thereunder, within 5
days after the same becomes due and payable;
(b) Any representation or warranty made by Mortgagor (or any of
its officers) under or in connection with any Loan Document shall be or become
incorrect or untrue, or shall prove to have been incorrect or misleading in any
material respect when made;
(c) Mortgagor shall fail to perform or observe any term, covenant
or agreement (other than a covenant of payment) contained in any Loan Document
on its part to be performed or observed, and such failure shall remain uncured
for 10 days after written notice thereof shall have been given by Mortgagee to
Mortgagor, or if such failure cannot by its nature be cured within 10 days after
written notice thereof shall have been given by Mortgagor and shall fail to
complete such cure within 60 days after Mortgagee's initial written notice of
such failure;
(d) An involuntary case or proceeding under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect shall be
commenced against Mortgagor, and such case or proceeding shall not be dismissed
in 60 days; or a court shall enter an order, appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator, supervisor,
rehabilitator (or similar official) of Mortgagor or for any substantial part of
its property, or ordering the winding-up, supervision or liquidation of its
affairs;
(e) Mortgagor shall commence a voluntary case or proceeding under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
or proceeding under any such law, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator, supervisor, rehabilitator (or other similar official)
of Mortgagor or for any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall fail generally to pay
its
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indebtedness generally as the same becomes due, or shall take any corporate
action in furtherance of any of the foregoing;
(f) A judgment or order for the payment of money in excess of
$2,500,000 shall be rendered against Mortgagor and either (A) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (B) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect;
(g) A Default has occurred and is continuing beyond any applicable
grace or cure period under any debt (other than the Loan) in excess of
$2,500,000.00;
(h) Any material provision of the Loan Documents relating to
Mortgagee's ability to realize on the Collateral following an Event of Default
shall for any reason cease to be valid and binding on Mortgagor, or Mortgagor
shall so state in writing; and
(i) This Mortgage shall, as a result of Mortgagor's acts or
omissions, for any reason, except to the extent permitted by the terms thereof,
cease to create a valid and, upon filing of UCC-1 financing statement(s), UCC-2
Notice Filings, or UCC-3 continuation statements, as applicable, perfected first
priority security interest in any of the Collateral purported to be covered,
which can be so secured or perfected.
ARTICLE VI
6. Remedies in Case of Event of Default. Upon the occurrence of
Default, the following remedies are available, without limitation, to Mortgagee:
(a) Mortgagee may exercise all of Mortgagee's remedies under this
Mortgage or other Loan Documents including, without limitation, acceleration of
maturity of all payments and Obligations which shall immediately become due and
payable without demand or notice;
(b) Mortgagee may take immediate possession of the Property or any
part thereof (which Mortgagor agrees to surrender to Mortgagee) and manage,
control or lease the same to such persons and at such rental as it may deem
proper and collect and apply Rents as provided herein. The taking of possession
shall not prevent concurrent or later proceedings for the foreclosure sale of
the Property;
(c) Mortgagee may apply to any court of competent jurisdiction for
the appointment of a receiver for all purposes including, without limitation, to
manage and operate the Property or any part thereof, and to apply the net Rents
therefrom to the payment of any of the Obligations. In event of such
application, Mortgagor consents to the appointment of a receiver, and agrees
that a receiver may be appointed without notice to Mortgagor, without
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regard to the adequacy of any security for the Obligations, and without regard
to the solvency of Mortgagor or any other person, firm or corporation who or
which may be liable for the payment of the Obligations;
(d) All the remedies of a mortgagee and a secured party as
provided by law and in equity including, without limitation, foreclosure upon
this Mortgage and sale of the Property, or any part of the Property, at a public
sale conducted according to applicable law (referred to as "Sale") and conduct
additional Sales as may be required until all of the Property is sold or the
Obligations are satisfied;
(e) Mortgagee may sell the Property at public outcry to the
highest bidder for cash in front of the Court House door in the county where
said Property is located, either in person or by auctioneer, after having first
given notice of the time, place and terms of sale by publication once a week for
three (3) successive weeks prior to said sale in some newspaper published in
said county, and, upon payment of the purchase money, Mortgagee or any person
conducting the sale for Mortgagee is authorized to execute to the purchaser at
said sale a deed to the premises so purchased. Mortgagee may bid at said sale
and purchase said premises, or any part thereof, if the highest bidder therefor.
At the foreclosure sale the Property may be offered for sale and sold as a whole
without first offering it in any other manner or may be offered for sale and
sold in any other manner Mortgagee may elect.
(f) Mortgagee may bid at Sale and may accept, as successful
bidder, credit of the bid amount against the Obligations as payment of any
portion of the purchase price;
(g) Mortgagee shall apply the proceeds of Sale, first to any fees
or attorney fees permitted Mortgagee by law in connection with Sale, second to
expenses of foreclosure, publication, and sale permitted Mortgagee by law in
connection with Sale, third to the Obligations, and any remaining proceeds as
required by law;
(h) Mortgagee is authorized to foreclose this Mortgage subject to
the rights of any tenants of the Property, and the failure to make any such
tenants parties defendant to any such foreclosure proceedings and to foreclose
their rights will not be, a defense to any proceedings instituted by Mortgagee
to collect the sums secured hereby or to collect any deficiency remaining unpaid
after the foreclosure sale of the Property;
(i) Mortgagee shall have the power and authority to institute and
maintain any suits and proceedings as Mortgagee may deem advisable (i) to
prevent any impairment of the Property by any acts which may be unlawful or any
violation of this Mortgage, (ii) to preserve or protect its interest in the
Property, and (iii) to restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order might impair the security hereunder or be
prejudicial to Mortgagee's interest;
(j) If Mortgagee shall have proceeded to enforce any right or
remedy under this Mortgage by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, then and
in every such instance, Mortgagor and Mortgagee shall, except to the extent
modified by such proceedings, be restored to their former positions and rights
hereunder, and all rights, powers and remedies of Mortgagee shall continue as if
no such proceeding had occurred or had been taken;
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(k) Upon Mortgagee's demand, Mortgagor will pay to Mortgagee the
whole amount due and payable under the Loan Agreement and all other sums secured
hereby. If Mortgagor shall fail to pay the same forthwith upon such demand,
Mortgagee shall be entitled to sue for and to recover judgment for the whole
amount so due and unpaid together with costs and expenses, including the
reasonable compensation, expenses and disbursements of Mortgagee's agents,
attorneys and other representatives. Mortgagee shall be entitled to sue and
recover judgment as aforesaid either before, after or during the pendency of any
proceedings for the enforcement of this Mortgage, and the right of Mortgagee to
recover such judgment shall not be affected by any taking of possession or
foreclosure sale hereunder, or by the exercise of any other right, power or
remedy for the enforcement of the terms of this Mortgage, or the foreclosure of
the estate created hereby;
(l) In case of a foreclosure sale of all or any part of the
Property and of the application of the proceeds of sale to the payment of the
sums secured hereby, Mortgagee shall be entitled to enforce payment of and to
receive all amounts then remaining due and unpaid and to recover judgment for
any portion thereof remaining unpaid, with interest. Mortgagor hereby agrees, to
the extent permitted by law, that no recovery of any such judgment by Mortgagee
and no attachment or levy of any execution upon any of the Property or any other
property shall in any way affect the estate created hereby upon the Property or
any part thereof or any lien, rights, powers or remedies of Mortgagee hereunder,
but such lien, rights, powers and remedies of Mortgagee hereunder shall continue
unimpaired as before; and
(m) Mortgagee may enter upon and take possession of the Property
or any part thereof, in any manner permitted by law, by reasonable force,
summary proceedings, ejectment or otherwise and may remove Mortgagor and all
other Persons and any and all property therefrom, and Mortgagee may hold,
operate and manage the same, make all necessary or proper repairs, renewals, and
replacements, and useful alterations, additions, betterments and improvements
thereto and thereon as may seem advisable to either of them, and insure and
reinsure the Property as may seem advisable and to either of them, and may
receive all earnings, income, rents, issues and proceeds accruing with respect
thereto. Any amounts so received by Mortgagee shall be applied to pay the
expenses of operating the Property and of all maintenance, repairs, renewals,
replacements, alterations, additions, betterments, improvements, taxes,
assessments, insurance premiums, reasonable compensation for the services of all
attorneys, advisors, brokers, receivers, agents and other employees engaged or
employed by Mortgagee and all other costs and expenses of entering a bond and
taking possession of and holding the Property, and then in the manner provided
in Article VII of this Mortgage. If an Event of Default shall
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have occurred under the Loan Agreement or if the Loan Agreement shall be
terminated, all sums so received by Mortgagee shall be applied in the manner
specified in Article VII of this Mortgage.
ARTICLE VII
7. Application of Proceeds. The proceeds of (a) of the operation
and management of the Property; and (b) any sale of the Property or any interest
therein, shall, unless otherwise provided in the Loan Agreement, be applied as
follows:
First: to the costs and expenses of the sale, reasonable attorneys'
fees and expenses, court costs, and any other expenses or advances made or
incurred in the protection of the rights of Mortgagee or in the pursuance of any
remedies hereunder;
Second: to any lien prior to the estate created hereby which Mortgagee
may consider it necessary or desirable to discharge;
Third: to any Obligations secured by this Mortgage and at the time due
and payable (whether by acceleration or otherwise);
Fourth: to Mortgagee for payment of the Notes outstanding; and
Fifth: the balance, if any, to Mortgagor.
ARTICLE VIII
8. Change in Method of Taxation. In the event of the passage,
after the date of this Mortgage, of any law changing in any way the laws now in
force for the taxation of mortgages or debts secured thereby, for state or local
purposes, or the operation of any such taxes so as to adversely affect the
interest of Mortgagee in the Property, this Mortgage or the Loan Agreement,
Mortgagor shall, upon demand, bear and pay the full amount (or any partial
amount) requested by Mortgagee, of taxes resulting from such changes hereunder
without offset or credit against any other sums due under the Loan Agreement or
on the Notes.
ARTICLE IX
9. Future Advances. This Mortgage is given to secure not only
existing Obligations, but also future advances made within fifteen (15) years of
the date of this Mortgage to the same extent as if such future advances are made
on the date of the execution of this Mortgage. Mortgagor hereby agrees to pay
all mortgage taxes owed on any future advances so secured hereby at the time any
such future advance is made hereunder. Mortgagor shall not execute any document
that impairs or otherwise impacts the priority of any future advances secured by
this Mortgage.
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ARTICLE X
10. Assignment of Leases and Rents. Mortgagor hereby grants,
transfers and assigns to Mortgagee Mortgagor's entire right, title and interest
in and to the Leases and Rents. This assignment of Leases and Rents by Mortgagor
to Mortgagee is intended to operate as an absolute and immediate assignment of
such Leases and Rents.
10.1. Mortgagor's Representations and Warranties Regarding
Assignment of Leases and Rents. Mortgagor represents and warrants to Mortgagee
as follows:
(a) Mortgagor has good and lawful right, title and interest in and
to the Leases, is entitled to receive the Rents from the Leases and from the
Property, has full power and authority to assign the Leases as provided herein
and to grant to and confer upon Mortgagee the powers, interests and authority
set forth herein, and has not assigned the Leases or Rents to any other party;
(b) Mortgagor has neither done any act nor omitted to do any act
which might prevent Mortgagee from, or limit Mortgagee in, acting under any of
the provisions of this assignment of Leases and Rents;
(c) All Leases provide for Rent to be paid monthly, in advance,
and Mortgagor has not accepted and will not accept payment of Rent for more than
one (1) month in advance; provided, however, Mortgagor may accept payment of
Rent two (2) months in advance if such Rent accepted two (2) months in advance
does not exceed five (5%) percent of the Rent collected during the applicable
month; and there are no agreements, understandings, or undertakings by Mortgagor
providing for free or reduced Rent in the past or in the future except as
provided in the Leases;
(d) Except as disclosed to Mortgagee in writing, Mortgagor is not
now in default, the nature of which could have a material adverse impact on the
financial condition of Mortgagor or the value of the Property, under any
provision of any of the Leases, and no tenant under any of the Leases has
claimed or asserted any defense, offset, counter-claim, or abatement of rent,
and that the Leases remain in full force and effect. Mortgagor further
represents and warrants that it has no knowledge of any default by any tenant
under any of the Leases that could materially adversely affect the value of the
Property;
(e) This Assignment of Leases and Rents, the Leases, the
performance of each and every covenant of Mortgagor under the Leases, and the
enforcement by Mortgagee of its rights hereunder does not conflict with, or will
not conflict with, and does not constitute or will not constitute a breach or
default, under any agreement, Mortgage or other instrument to which Mortgagor is
a party, or so far as is known to Mortgagor, any law, ordinance, administrative
regulation or court decree which is applicable to Mortgagor; and
(f) No action has been brought or, so far as is known to
Mortgagor, is threatened, which could interfere in any way with the right of
Mortgagor to execute and
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deliver this assignment of Leases and Rents, and to perform all of Mortgagor's
obligations contained in this assignment of Leases and Rents and in the Leases;
and
(g) To Mortgagor's knowledge, the Leases are valid, enforceable
and in full force and effect.
10.2. Mortgagor's Covenants Regarding Assignment of Leases and
Rents. Mortgagor hereby covenants and agrees to and with Mortgagee as follows:
(a) Mortgagor will notify Mortgagee in writing (but without any
right of approval or denial on the part of Mortgagee) of any termination,
substitution or material modification of any Leases involving 10,000 or more
Koger Net Square Feet (as defined in the Loan Agreement);
(b) Mortgagor hereby acknowledges that any and all Rents collected
or received by Mortgagor after the occurrence of an Event of Default will be the
property of Mortgagee, which if received and collected by Mortgagor, will be
considered received and collected on Mortgagee's behalf and as Mortgagee's
agent, and will be held by Mortgagor in trust for the benefit of Mortgagee, and
Mortgagor will deliver all such sums to Mortgagee immediately upon Mortgagor's
request therefor;
(c) In accordance with sound business judgment, Mortgagor will use
its reasonable best efforts, at its cost and expense, to observe, perform and
discharge, or cause to be observed, performed and discharged, all of the
obligations and undertakings of Mortgagor or its agents under the Leases, and
will use its best efforts, in accordance with sound business judgment, to
enforce or secure, or cause to be enforced or secured, the performance of each
and every obligation and undertaking of the respective tenants under the Leases,
and will appear in and defend, at its cost and expense, any action or proceeding
arising under or in any manner connected with the Leases or the obligations and
undertakings of any tenant thereunder. Mortgagor will not do or permit to be
done anything to impair the security thereof, including without limitation the
execution of any other assignment or Mortgagor's interest in the Leases or the
Rents, without Mortgagee's prior written consent;
(d) Mortgagor authorizes and directs each and every present and
future tenant under the Leases to pay all Rent to Mortgagee upon receipt of
written demand from Mortgagee to so pay the same, and upon paying the same, such
tenants will be relieved from all liability to Mortgagor for such Rental in all
respects. To the extent not so provided by applicable law, each Lease will
provide that, in the event of enforcement by Mortgagee of the remedies provided
for by law or by this assignment of Leases and Rents, the tenant thereunder
will, upon request of any person succeeding to the interest of Mortgagor as a
result of such enforcement, automatically become the tenant of said successor in
interest, without change in the terms or other provisions of such Lease. Any
such successor in interest will not be bound by any payment of rent or
additional rent made more than one (1) month in advance;
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(e) This Assignment of Leases and Rents will not obligate
Mortgagee to take any action or to incur expenses or perform or discharge any
obligation, duty or liability of Mortgagor under any Lease, or for the control,
care, management, or repair of the Property; nor will it operate to make
Mortgagee responsible or liable for any waste committed on the Property by the
tenants or any other parties or for any dangerous or defective condition of the
Property, or for any act or omission relating to the management, upkeep, repair,
or control of the Property that results in loss or injury or death to any
person. Mortgagee will not be liable for any loss sustained by Mortgagor
resulting from Mortgagee's failure to lease the Property after default.
Mortgagor will and does hereby indemnify and agree to hold harmless Mortgagee
from and against any and all liability, loss, cost, damage or expense which may
be incurred under the Leases or by reason of this assignment of Leases and Rents
and from any and all claims and demands whatsoever which may be asserted against
Mortgagee by reason of any alleged obligations or undertakings on its part to
perform or discharge any of the terms, covenants, or agreements contained in the
Leases except to the extent the same is caused by the negligence of Mortgagee.
Should Mortgagee incur any such liability under the Leases or by reason of this
assignment of Leases and Rents or in defense of any such claims or demands, the
amount thereof, including costs, expenses, and reasonable attorney and paralegal
fees and costs, will be secured hereby and Mortgagor will reimburse Mortgagee
therefor immediately upon demand and upon the failure of Mortgagor so to do,
Mortgagee may, at this option, declare all sums secured hereby immediately due
and payable, or may charge the costs thereof to Mortgagor as an advance under
the Notes; and
(f) This assignment of Leases and Rents is made without prejudice
to any of the rights and remedies possessed by Mortgagee under the Loan
Agreement, and the right of Mortgagee to exercise its remedies under this
assignment of Leases and Rents may be exercised by Mortgagee either prior to,
simultaneously with, or subsequent to any action taken by it under the Loan
Agreement. Each and every right, remedy and power granted to Mortgagee by this
assignment of Leases and Rents will be cumulative and in addition to any other
right, remedy and power given by the Loan Agreement now or hereafter existing in
equity, at law or by virtue of statute or otherwise. Nothing contained in this
assignment of Leases and Rents, and no act done or omitted by Mortgagee pursuant
to the powers and rights granted it hereunder, nor the failure of Mortgagee to
avail itself of any of the rights and remedies under this assignment of Leases
and Rents, will be construed or deemed to be a waiver of any of Mortgagee's
rights and remedies under this assignment of Leases and Rents, nor will such
exercise or omission to exercise of the power and rights granted Mortgagee
hereunder be deemed to constitute a waiver of its rights and remedies under the
Loan Agreement.
10.3. Mortgagee's Covenants Regarding Assignment of Leases and
Rents. Mortgagee hereby covenants and agrees to and with Mortgagor as follows:
(a) Although this assignment of Leases and Rents constitutes a
present and absolute assignment of the Leases and the Rents, so long as there is
no Event of Default on the part of Mortgagor, Mortgagee will not require that
such Rents be paid directly to
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Mortgagee, and Mortgagor will have a license to collect and use the Rents for
subsequent application as provided above; and
(b) Upon the payment and performance in full of Mortgagor's
obligations under the Loan Agreement, as evidenced by the recording or filing of
an instrument of satisfaction or termination of this Mortgage without the
recording of another security instrument in favor of Mortgagee affecting the
Property, this assignment of Leases and Rents will be deemed terminated and
released of record by Mortgagee and thereupon will be null and void and of no
further force or effect.
10.4. Further Assurances. At Mortgagee's request, Mortgagor will
assign and transfer to Mortgagee any and all subsequent Leases upon all or any
part of the Property and to execute and deliver at the request of Mortgagee all
such further assurances and assignments in the Leases and the Rents as Mortgagee
will require from time to time in its sole discretion.
10.5. Subordination, Nondisturbance and Attornment. The Leases are
and at all times shall be subject and subordinate in all respects to this
Mortgage, and to all renewals, modifications, amendments, consolidations,
replacements, refinancings and extensions of this Mortgage, to the full extent
of all principal, interest and all other amounts secured hereby. Provided that a
tenant is not in default under its Lease, Mortgagee shall not disturb the
occupancy of such tenant under its Lease during the term of such Lease,
notwithstanding foreclosure of this Mortgage, acceptance of a deed in lieu of
foreclosure or exercise of any other remedy provided herein, or pursuant to the
laws of the State of South Carolina. If requested by a tenant under any of the
Leases or upon Mortgagee's request, Mortgagor shall enter into a subordination,
nondisturbance and attornment agreement (reasonably acceptable in form and
substance to Mortgagee) with such tenant whereby Mortgagee will agree to not
disturb the tenant in its possession of the Property provided such tenant is not
in default under its Lease and the tenant will agree to attorn to Mortgagee if
Mortgagee takes possession of the Property.
ARTICLE XI
11. Security Agreement.
(a) This Mortgage is hereby made and declared to be a security
agreement, encumbering each and every item of personal property included herein,
in compliance with the provisions of the Uniform Commercial Code as enacted in
the State. A financing statement or statements reciting this Mortgage to be a
security agreement, affecting all of said personal property aforementioned,
shall be executed by Mortgagor and Mortgagee and appropriately filed. The
remedies for any violation of the covenants, terms and conditions of the
security agreement herein contained shall be (i) as prescribed herein, or (ii)
as prescribed by general law, or (iii) as prescribed by the specific statutory
consequences now or hereafter enacted and specified in said Uniform Commercial
Code, all at Mortgagee's sole election. Mortgagor and Mortgagee agree that the
filing of such
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financing statement(s) in the records normally having to do with personal
property shall never be construed as in any way derogating from or impairing
this declaration and hereby stated intention of Mortgagor and Mortgagee that
everything used in connection with the production of income from the Property
and/or adapted for use therein and/or which is described or reflected in this
Mortgage, is, and at all times and for all purposes and in all proceedings both
legal or equitable shall be, regarded as part of the Property irrespective of
whether (i) any such item is physically attached to the improvements, (ii)
serial numbers are used for the better identification of certain items capable
of being thus identified in a recital contained herein, or (iii) any such item
is referred to or reflected in any such financing statement(s) of the rights in
and to (aa) the proceeds of any fire and/or hazard insurance policy, or (bb) any
award in eminent domain proceeds for a taking or for loss of value, or (cc)
Mortgagor's interest as lessor in any present or future lease or rights to
income growing out of the use and/or occupancy of the Property, whether pursuant
to lease or otherwise shall never be construed as in any way altering any of the
rights of Mortgagee as determined by this instrument impugning the priority of
Mortgagee's estate granted hereby or by any other recorded document, but such
mention in such financing statement(s) is declared to be for the protection of
Mortgagee in the event any court shall at any time hold with respect to the
foregoing (aa), (bb) or (cc), that notice of Mortgagee's priority of interest to
be effective against a particular class of persons, must be filed in the Uniform
Commercial Code records.
(b) Mortgagor warrants that (i) Mortgagor's (that is "Debtor's")
name, identity or corporate structure and residence or principal place of
business are as set forth in Exhibit C hereto; (ii) Mortgagor (that is,
"Debtor") has been using or operating under said name, identity or corporate
structure without change for the time period set forth in Exhibit C hereto; and
(iii) the location of the collateral is upon the Property. Mortgagor covenants
and agrees that Mortgagor will furnish Mortgagee with notice of any change in
the matters addressed by clauses (i) or (iii) of this subparagraph (b) within
thirty (30) days of the effective date of any such change and Mortgagor will
promptly execute any financing statements or other instruments deemed necessary
by Mortgagee to prevent any filed financing statement from becoming misleading
or losing its perfected status.
(c) The information contained in this subparagraph (c) is provided
in order that this Mortgage shall comply with the requirements of the Uniform
Commercial Code, as enacted in the State of Alabama, for instruments to be filed
as financing statements. The names of the "Debtor" and the "Secured Party," the
identity or corporate structure and residence or principal place of business of
"Debtor," and the time period for which "Debtor" has been using or operating
under said name and identity or corporate structure without change, are as set
forth in Exhibit C attached hereto and by this reference made a part hereof; the
mailing address of the "Secured Party" from which information concerning the
security interest may be obtained, and the mailing address of "Debtor" are as
set forth in Exhibit C attached hereto; and a statement indicating the types, or
describing the items, of collateral are set forth hereinabove.
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ARTICLE XII
12. Approval of Legal Description. Mortgagor has read and does
hereby approve the legal description of the Land which is the subject hereof, as
set forth in Exhibit A attached hereto, and hereby indemnifies Mortgagee and its
attorneys with respect to any liability which might arise as a consequence of
any error or omission therein.
ARTICLE XIII
13. Loan Agreement. The terms, provisions, conditions,
representations and warranties and covenant of the Loan Agreement are
incorporated herein by reference. In the event of a conflict between this
Mortgage and the Loan Agreement, the Loan Agreement shall control.
ARTICLE XIV
14. Miscellaneous. The following miscellaneous provisions shall
apply:
14.1. Each legal, equitable or contractual right, power or remedy of
Mortgagee now or hereafter provided herein or by statute or otherwise shall be
cumulative and concurrent and shall be in addition to every other right, power
and remedy, and the exercise or beginning of the exercise by Mortgagee of any
one or more of such rights, powers and remedies shall not preclude the
simultaneous or later exercise of any or all such other rights, powers and
remedies.
14.2. No failure by Mortgagee to insist upon the strict performance
of any term hereof or to exercise of any right, power or remedy consequent upon
a breach hereof shall constitute a waiver of any such term or of any such
breach. No acceptance of the payment of any sums due under this Mortgage or
under the Loan Agreement during the continuance of any Default shall affect or
alter this Mortgage which shall continue in full force and effect with respect
to any other then existing or subsequent breach.
14.3. If Mortgagor shall fail to make any payment or perform any act
required to be made or performed hereunder and such failure shall not be cured
within the application grace period, if any, Mortgagee, without notice to or
demand upon Mortgagor and without waiving or releasing any obligation or
Default, may (but shall be under no obligation to) at any time thereafter make
such payment or perform such act for the account and at the expense of Mortgagor
and may enter upon the Property or any part thereof for such purpose and take
all such action thereon as, in the opinion of Mortgagee, may be necessary or
appropriate therefor. All sums so paid by Mortgagee and all costs and expenses
(including, without limitation, attorneys' fees and expenses) so incurred shall
constitute additional Obligations secured by this Mortgage and shall be paid by
Mortgagor to Mortgagee on demand.
14.4. At any time and from time to time, Mortgagor will deliver to
Mortgagee, promptly upon request, a certificate signed by a duly authorized
officer of Mortgagor stating that, to the best of the signer's knowledge after
making due inquiry, there is no Default
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hereunder, or if any such Default exists to his knowledge, specifying the nature
and period of existence thereof and what action Mortgagor is taking or proposes
to take with respect thereto. Mortgagor will also furnish promptly to Mortgagee,
such information with respect to the Property and the Leases as may from time to
time be requested.
14.5. Mortgagor, at its expense, will execute, acknowledge, secure
and deliver all such instruments and take all such action as Mortgagee from time
to time may reasonably request for the better assuring of the Property, rights
and obligations now or hereafter subjected to the security of this Mortgage or
intended so to be.
14.6. This Mortgage and the estate created hereby shall terminate
after the payment in full of (a) all the Obligations and (b) all other sums
secured hereby. Upon such termination and upon surrender of this Mortgage for
cancellation, Mortgagee shall release the Property then subject to the estate
created hereby to the Persons entitled thereto. The recitals in any satisfaction
executed under this Mortgage of any matters of fact shall be conclusive proof of
the truthfulness thereof. The Mortgagee in such release may be described as "the
person or persons legally entitled thereto." Mortgagee, at Mortgagor's expense,
shall execute and deliver such instruments of release, satisfaction and
termination in proper form for recording or filing, as may be appropriate to
evidence the release of (a) the Property from the estate created hereby, and (b)
any other security held by Mortgagee and such satisfaction and termination, and
such instruments, when duly executed, recorded and filed, shall conclusively
evidence the release, satisfaction and termination of this Mortgage.
14.7. This Mortgage shall be governed by and construed in accordance
with the laws of the State.
14.8. All rights, power and remedies provided herein may be
exercised only to the extent that the exercise thereof does not violate any
applicable law, and are intended to be limited to the extent necessary so that
they will not render this Mortgage invalid, unenforceable or not entitled to be
recorded, registered or filed under any applicable law. If any term or provision
of this Mortgage shall be held to be invalid, illegal or unenforceable, the
validity of the other terms and provisions hereof shall in no way be affected
thereby.
14.9. This Mortgage may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought, and shall be binding
upon Mortgagor, its successors and assigns, and all Persons claiming under or
through Mortgagor or any such successor or assign, and shall inure to the
benefit of and be enforceable by Mortgagee and its successors and assigns.
14.10. The headings in this Mortgage are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
19
<PAGE> 21
14.11. All agreements between Mortgagor and Mortgagee, whether now
existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of demand or acceleration of the
maturity of any payments hereunder or under the Loan Agreement or otherwise,
shall the interest contracted for, charged, received, paid or agreed to be paid
to Mortgagee exceed the maximum amount permissible under applicable law. If, in
any circumstance whatsoever, interest would otherwise be payable to Mortgagee in
excess of the maximum lawful amount, and if in any circumstance Mortgagee shall
ever receive anything of value deemed interest by applicable law in excess of
the maximum lawful amount, an amount equal to any excessive interest shall be
applied to the reduction of advances under the Loan Agreement and not to the
payment of interest, or if such excessive interest exceeds the unpaid advances
under the Loan Agreement, such excess shall be refunded to Mortgagor. All
interest paid or agreed to be paid to Mortgagee shall, to the extent permitted
by applicable law, be amortized, prorated, allocated, and spread throughout the
full period until payment in full of the principal so that the interest hereon
for such full period shall not exceed the maximum amount permitted by applicable
law. This paragraph shall control all agreements between Mortgagor and
Mortgagee.
14.12. This Mortgage may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
ARTICLE XV
15. WAIVER OF MORTGAGOR'S RIGHTS. BY EXECUTION OF THIS MORTGAGE,
MORTGAGOR EXPRESSLY (A) ACKNOWLEDGES THE RIGHT TO ACCELERATE THE OBLIGATIONS
SECURED HEREBY; AND (B) ACKNOWLEDGES THAT MORTGAGOR HAS READ THIS MORTGAGE AND
ANY AND ALL QUESTIONS REGARDING THE LEGAL EFFECT OF THIS MORTGAGE AND ITS
PROVISIONS HAVE BEEN EXPLAINED FULLY TO MORTGAGOR AND MORTGAGOR HAS CONSULTED
WITH COUNSEL OF MORTGAGOR'S CHOICE PRIOR TO EXECUTING THIS MORTGAGE.
16. WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE, BY ITS
ACCEPTANCE HEREOF, EACH ACKNOWLEDGE AND AGREE THAT NEITHER MORTGAGOR NOR
MORTGAGEE, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF ANY OF
THE SAME, WILL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR
ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS MORTGAGE, THE
NOTES, THE LOAN AGREEMENT OR THE LOAN DOCUMENTS, ANY COLLATERAL, OR THE DEALINGS
OR THE RELATIONSHIP BETWEEN MORTGAGOR AND MORTGAGEE RELATED THERETO. NEITHER OF
THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN
WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE
BEEN FULLY NEGOTIATED BY MORTGAGOR AND MORTGAGEE, ARE MADE KNOWINGLY,
VOLUNTARILY AND
20
<PAGE> 22
INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT FOR MORTGAGEE TO MAKE THE
LOAN TO MORTGAGOR, AND WILL BE SUBJECT TO NO EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
21
<PAGE> 23
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be executed,
sealed, and attested by its proper officers thereunto duly authorized, as of the
day and year first above written.
WITNESSES: KOGER EQUITY, INC., a Florida
corporation
/s/ Janice R. Long By: /s/ G. Danny Edwards (SEAL)
- --------------------------------- -------------------------
Its: Treasurer
-------------------------------
/s/ Alan C. Sheppard, Jr.
- ---------------------------------
STATE OF Georgia:
--------
COUNTY OF Camden:
-------
I, Dee Price, Notary Public in and for said County in said State or
said state at large, hereby certify that G. Danny Edwards, whose name as
the Treasurer President of KOGER EQUITY, INC., a Florida corporation, is signed
to the foregoing instrument and who is personally known to me acknowledged
before me on this day that, being informed of the contents of the said
instrument, he, as such officer 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 and official seal of office, this 30th day of
December, 1998.
(NOTARIAL SEAL) /s/ Dee Price
----------------------------------------------------
Notary Public
Print Name: Dee Price
-----------------------------------------
My Commission Expires: Feb. 1, 1999
------------------------------
Commission No. Notary Public, Camden County, Georgia
-------------------------------------
22
<PAGE> 24
EXHIBIT A
The Land
<PAGE> 25
EXHIBIT B
Permitted Encumbrances
<PAGE> 26
EXHIBIT C
DEBTOR
NAME: Koger Equity, Inc.
CORPORATE
STRUCTURE: a Florida corporation
PRINCIPAL PLACE
OF BUSINESS: 3986 Boulevard Center Drive #101
Jacksonville, Florida 32207
TIME PERIOD
USING NAME
WITHOUT CHANGE June 21, 1988, to present
SECURED PARTY
NAME: First Union National Bank,
as Agent for the Lenders
PRINCIPAL PLACE
OF BUSINESS: 301 South College Street
Charlotte, North Carolina 28288
<PAGE> 27
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
Name Options Address
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Michael F. Beale 20,000 4823 Riverbasin Drive South, Jacksonville, Florida 32207
- --------------------------------------------------------------------------------------------------------------
Robert N. Bridger 20,000 3675 Buckskin Trail West, Jacksonville, Florida 32277
- --------------------------------------------------------------------------------------------------------------
Bryan F. Howell 20,000 8257 Bay Tree Lane, Jacksonville, Florida 32256
- --------------------------------------------------------------------------------------------------------------
W. Lawrence Jenkins 20,000 55 Sea Marsh Road, Fernandina Beach, Florida 32034
- --------------------------------------------------------------------------------------------------------------
J. Velma Keen II 20,000 8121 Mar Del Plata East, Jacksonville, Florida 32256
- --------------------------------------------------------------------------------------------------------------
Kenneth D. Lund 20,000 1484 Mallard Lake Avenue, Jacksonville, Florida 32259
- --------------------------------------------------------------------------------------------------------------
James L. Stephens 20,000 4404 Richmond Park Court, Jacksonville, Florida 32224
- --------------------------------------------------------------------------------------------------------------
Thomas C. McGeachy 20,000 3926 W. Granada Street, Tampa, Florida 33629
- --------------------------------------------------------------------------------------------------------------
James W. Walker 20,000 9961 East Vineyard Lake Road, Jacksonville, Florida 32256
- --------------------------------------------------------------------------------------------------------------
Charles R. Diebel 6,500 217 San Juan Drive, Ponte Vedra Beach, Florida 32082
- --------------------------------------------------------------------------------------------------------------
James Patrick Ferris 6,500 13151 Queens Forest, San Antonio, Texas 78230
- --------------------------------------------------------------------------------------------------------------
William C. Stainback 6,500 8850 Glen Ferry Drive, Alpharetta, Georgia 30202
- --------------------------------------------------------------------------------------------------------------
J. Dudley Bates 6,000 808 Castile Drive, Altamonte Springs, Florida 32714
- --------------------------------------------------------------------------------------------------------------
R. Koger Burns 6,000 2320 Monaco Drive, Tallahassee, Florida 32308
- --------------------------------------------------------------------------------------------------------------
Charles R. Harrell 6,000 4796 Chesney Street, NW, Harrisburg, North Carolina 28075
- --------------------------------------------------------------------------------------------------------------
Russell B. Parmele, Jr. 6,000 8 Cranebridge Place, Greensboro, North Carolina 27407
- --------------------------------------------------------------------------------------------------------------
James J. Crews 5,500 4515 Brookwood Drive, Tampa, Florida 33629
- --------------------------------------------------------------------------------------------------------------
Rufus R. Hambright, Jr. 5,500 4 Barley Mill Drive, Greer, South Carolina 29651
- --------------------------------------------------------------------------------------------------------------
Morris Kent Ransdell 5,500 4304 West Freeport Street, Broken Arrow, Oklahoma 74012
- --------------------------------------------------------------------------------------------------------------
Anthony Lopes 5,000 2388 Willing Hurst, Germantown, Tennessee 38139
- --------------------------------------------------------------------------------------------------------------
Gary B. Robertson 5,000 1604 Cliffwood Drive, Austin, Texas 78733
- --------------------------------------------------------------------------------------------------------------
Steven P. Skidmore 5,000 327 Serrania, El Paso, Texas 79932
- --------------------------------------------------------------------------------------------------------------
David W. Foster 4,500 2590 Catawba Ridge Court, Orange Park, Florida 32065
- --------------------------------------------------------------------------------------------------------------
Robert J. Smith 4,500 2501 Roswell Avenue, #102, Charlotte, North Carolina 28209
- --------------------------------------------------------------------------------------------------------------
Todd M. Chessher 1,000 2600 Lake Austin Blvd., #5201, Austin, Texas 78703
- --------------------------------------------------------------------------------------------------------------
Victor A. Hughes, III 4,000 2284-B Dunwoody Crossing, Atlanta, Georgia 30338
- --------------------------------------------------------------------------------------------------------------
Hans J. Kaunath 4,000 4531 Hidden Oak Court, Orlando, Florida 32804
- --------------------------------------------------------------------------------------------------------------
Sandy Luick 4,000 618 Hunters Horn, Lilburn, Georgia 30247
- --------------------------------------------------------------------------------------------------------------
W. C. McLaughlin, Jr. 4,000 5902 Sloan Drive, San Antonio, Texas 78228
- --------------------------------------------------------------------------------------------------------------
J. Scott McMurrian 4,000 15206 Forest Dew Drive, San Antonio, Texas 78232
- --------------------------------------------------------------------------------------------------------------
Allen C. Phipps 4,000 1514 Liberty Drive, Greensboro, North Carolina 27408
- --------------------------------------------------------------------------------------------------------------
Tulio E. Remington 4,000 2946 East 26 Place, Tulsa, Oklahoma 74114
- --------------------------------------------------------------------------------------------------------------
Robert P. Rowland 2,000 6718 Callaghan Road, #203, San Antonio, Texas 78229
- --------------------------------------------------------------------------------------------------------------
John C. Sellers, III 2,000 P. O. Box 356, Williamston, South Carolina 29697
- --------------------------------------------------------------------------------------------------------------
Charles C. Smith, Jr. 4,000 4985 Arapahoe Avenue, Jacksonville, Florida 32210
- --------------------------------------------------------------------------------------------------------------
Willis L. Stephens, Jr. 4,000 950 Parliament Road, Maitland, Florida 32750
- --------------------------------------------------------------------------------------------------------------
Henry B. Dirks, III 2,000 2022 Encino Alto, San Antonio, Texas 78259
- --------------------------------------------------------------------------------------------------------------
Judith C. Healey 4,000 12243 97th Avenue, North, Seminole, Florida 33772
- --------------------------------------------------------------------------------------------------------------
David G. Hofstetter 4,000 510 Crepe Myrtle Court, Alpharetta, Georgia 30005
- --------------------------------------------------------------------------------------------------------------
John W. Krosnes 4,000 8637 Riverchase Drive, Germantown, Tennessee 38139
- --------------------------------------------------------------------------------------------------------------
Laura S. McLeod 4,000 601 S. 1st Street Unit 3G, Jacksonville Beach, Florida 32250
- --------------------------------------------------------------------------------------------------------------
Edgar S. Mincey 2,000 4594 Lower Lake Road, Thomasville, North Carolina 27360
- --------------------------------------------------------------------------------------------------------------
Mark N. Musgrave 4,000 1873 Everhart Drive, Orlando, Florida, 32806
- --------------------------------------------------------------------------------------------------------------
Samuel D. Reale 4,000 Rt. 3 Box 5730, Havana, Florida 32333
- --------------------------------------------------------------------------------------------------------------
Daniel P. Armstrong 5,000 2427 Wattle Tree Road, East, Jacksonville, Florida 32246-
9742
- --------------------------------------------------------------------------------------------------------------
Thomas L. Bacsik 5,000 5830 Spinaker Loop, Lady Lake, Florida 32159
- --------------------------------------------------------------------------------------------------------------
Pauline M. Bodin 5,000 2000 Farm Way, Middleburg, Florida 32068
- --------------------------------------------------------------------------------------------------------------
Philip J. Bruce 6,000 1433 Tree Split Lane, Neptune Beach, Florida 32266
- --------------------------------------------------------------------------------------------------------------
William R. Byrd 5,000 4435 Woodsong Loop East, Jacksonville, Florida 32225
- --------------------------------------------------------------------------------------------------------------
G. Danny Edwards 6,000 9908 Vineyard Lake Lane, Jacksonville, Florida 32256
- --------------------------------------------------------------------------------------------------------------
John D. Fish 6,000 1855 Elizabeth Place, Jacksonville, Florida 32205
- --------------------------------------------------------------------------------------------------------------
Wade L. Hampton 6,000 2909 Iroquois Avenue, Jacksonville, Florida 32210
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 1
THIS INSTRUMENT PREPARED BY EXHIBIT 10(k)(3)(b)
AND RECORD AND RETURN TO:
Alan C. Sheppard, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, FL 32202-3650
- --------------------------------------------------------------------------------
ASSIGNMENT OF LEASES AND RENTS
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made and
executed as of this 30th day of December, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Assignor"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Assignee"), for
the Lenders (as such term is defined in the Loan Agreement, as hereinafter
defined), whose address is 301 South College Street, Charlotte, North Carolina
28288 Attention: First Union Capital Markets Group. The terms Borrower and
Assignee, whenever hereinafter used will be construed to refer to and include
the heirs, legal representatives, executors, administrators, successors and
assigns of said parties.
R E C I T A L S:
A. Assignor is the mortgagor under that certain Mortgage,
Assignment of Leases and Rents and Security Agreement given by Assignor to
Assignee dated of even date herewith and recorded or to be recorded in the
public records of Jefferson County, Alabama (the "Mortgage"); securing the
following Substitution Revolving Promissory Notes and Revolving Promissory
Notes: (i) Substitution Revolving Promissory Note dated as of even date herewith
made by payable to the order of FUNB in the original principal amount of
$45,000,000, (ii) the Substitution Revolving Promissory Note dated as of even
date herewith made by payable to the order of AmSouth in the original principal
amount of $35,000,000, (iii) the Substitution Revolving Promissory Note dated as
of even date herewith made by payable to the order of GFB in the original
principal amount of $35,000,000, (iv) the Revolving Promissory Note dated as of
even date herewith made by payable to the order of Citizens in the original
principal amount of $20,000,000, and (v) the Revolving Promissory Note dated as
of even date herewith made by payable to the order of Compass in the original
principal amount of $15,000,000 (collectively, the "Notes"), encumbering certain
real property interests located in Jefferson County, Alabama, as more
particularly described on attached Exhibit A (the "Premises").
B. To further secure the payment, discharge and performance of
the Notes, and as a condition to Assignee's extension of credit to Assignor
pursuant to the Notes, Assignor has agreed to execute this Assignment for the
purposes set forth herein.
NOW, THEREFORE, to further secure the payment, discharge and
performance of the indebtedness of Assignor to Assignee evidenced by the Notes
and in consideration of Assignee's acceptance of the Notes and in further
consideration of the sum of Ten Dollars
1
<PAGE> 3
($10.00) paid by Assignee to Assignor, receipt and sufficiency of which are
hereby acknowledged, Assignor hereby assigns to Assignee all of Assignor's
right, title and interest in, to and under any and all present and future leases
of or in the Premises ("Leases") and any and all rents, revenues, issues and
profits (including Assignor's interest in any security deposits relating
thereto) arising out of or accruing from the Leases whether now or hereafter due
("Rents"), said Leases and Rents being deemed part of the security for the
indebtedness herein mentioned and are encumbered, transferred and conveyed by
this Assignment, and in furtherance thereof, does hereby covenant and agree with
Assignee as follows:
1. Assignor will notify Assignee in writing (but without any
right of approval or denial on the part of Assignee) of any termination,
substitution or material modification of any Leases involving 10,000 or more
Koger Net Square Feet (as defined in the Loan Agreement).
2. Assignor will, at its cost and expense, observe, perform and
discharge, or cause to be observed, performed and discharged, all of the
obligations and undertakings of Assignor or its agents under the Leases, and
will use its reasonable best efforts in the exercise of sound business judgment
to enforce or secure, or cause to be enforced or secured, the performance of
each and every obligation and undertaking of the respective tenants under the
Leases, and will appear in and defend, at its cost and expense, any action or
proceeding arising under or in any manner connected with the Leases or the
obligations and undertakings of any tenant thereunder. Assignor will not do or
permit to be done anything to impair the security hereof, including without
limitation the execution of any other assignment of Assignor's interest in the
Leases or the Rents, without Assignee's prior written consent.
3. This Assignment is intended to operate as an absolute and
immediate assignment of the Leases and the Rents; however, unless and until a
default occurs under the Notes, the Loan Agreement, the Mortgage or this
Assignment, Assignor will have a license to collect the Rents as and when the
same become due and payable. Assignor hereby agrees that the respective tenants
under the Leases, upon notice from Assignee of the occurrence of a default
hereunder, will thereafter pay to Assignee the Rents due and to become due under
the Leases without any obligation to determine whether or not such a default
does in fact exist. Assignor, without written approval of Assignee, will not
collect or accept Rent for more than one (1) month in advance; provided,
however, Assignor may accept Rent two (2) months in advance if such Rent
accepted two (2) months in advance does not exceed five percent (5%) of the Rent
collected during the applicable month.
4. Upon payment in full of the principal sum and interest, of the
Notes, this Assignment shall become and be void and of no effect. Assignor
hereby authorizes and directs the lessees named in said Leases or any other or
future lessees or occupants of the Premises described therein or in the Mortgage
upon receipt from the Assignee of written notice to the effect that Assignee is
then the holder of the Notes and the Mortgage and that a default exists
thereunder or under the Assignment, to pay over to the Assignee
2
<PAGE> 4
all rents, income, profits and revenues hereby assigned and to continue so to do
until otherwise notified by Assignee.
5. This Assignment of Leases and Rents as provided herein will
not be deemed or construed to constitute Assignee as a mortgagee in possession
of the Premises nor to obligate Assignee to take any action or to incur expenses
or perform or discharge any obligation, duty or liability of Assignor under any
Lease, or for the control, care, management, or repair of the Premises; nor will
it operate to make Assignee, except in the event of Assignee's negligence,
recklessness or wilful misconduct, responsible or liable for any waste committed
on the Premises by the tenants or any other parties or for any dangerous or
defective condition of the Premises, or for any act or omission relating to the
management, upkeep, repair, or control of the Premises that results in loss or
injury or death to any person. Except in the event of Assignee's negligence,
recklessness or wilful misconduct, Assignee will not be liable for any loss
sustained by Assignor resulting from Assignee's failure to lease the Premises
after default or from any other act or omission of Assignee in managing the
Premises after default. Assignor will and does hereby indemnify and agree to
hold harmless Assignee from and against any and all liability, loss, cost,
damage or expense which may be incurred under the Leases or by reason of this
Assignment of Leases (except as a result of Assignee's gross negligence or
willful misconduct) and, to the extent that a claim is made against Assignee
prior to the time Assignee takes possession of the Premises, from any and all
claims and demands whatsoever which may be asserted against Assignee by reason
of any alleged obligations or undertakings on its part to perform or discharge
any of the terms, covenants, or agreements contained in the Leases. Should
Assignee incur any such liability under the Leases or by reason of this
Assignment of Leases and Rents or in defense of any such claims or demands, the
amount thereof, including costs, expenses, and reasonable attorneys' and
paralegals' fees and costs, will be secured hereby and Assignor will reimburse
Assignee therefor immediately upon demand and upon the failure of Assignor so to
do, Assignee may, at its option, declare all sums secured hereby immediately due
and payable, or may charge the costs thereof to Assignor as an advance under the
Notes and secured by this Assignment.
6. To the extent not so provided by applicable law, each Lease
will provide that, in the event of enforcement by Assignee of the remedies
provided for by law or by the Notes, the Mortgage or this Assignment, the lessee
thereunder will, upon request of any person succeeding to the interest of
Assignor as a result of such enforcement, automatically become the lessee of
said successor in interest, without change in the terms or other provisions of
such Lease. Any such successor in interest will not be bound by any payment of
rent or additional rent made more than one (1) month or two (2) months in
advance (as applicable in accordance with Paragraph 3 above). The Leases are and
at all times shall be subject and subordinate in all respects to the Mortgage,
and to all renewals, modifications, amendments, consolidations, replacements,
refinancings and extensions of the Mortgage, to the full extent of all
principal, interest and all other amounts secured thereby. Provided that a
tenant is not in default under its Lease, Assignee shall not disturb the
occupancy of such tenant under its Lease during the term of such Lease,
3
<PAGE> 5
notwithstanding foreclosure of the Mortgage, acceptance of a deed in lieu of
foreclosure or exercise of any other remedy provided in the Mortgage, or
pursuant to the laws of the State of Alabama. If requested by a tenant or
Assignor under any of the Leases or upon Assignee's request, Assignor and
Assignee shall enter into a subordination, nondisturbance and attornment
agreement (reasonably acceptable in form and substance to Assignee) with such
tenant whereby Assignee will agree to not disturb the tenant in its possession
of the Premises provided such tenant is not in default under its Lease and the
tenant will agree to attorn to Assignee if Assignee takes possession of the
Premises.
7. Upon a default under the Notes, the Loan Agreement, the
Mortgage or this Assignment, Assignee may at its option, without notice and
without regard to the adequacy of the security for the obligations set forth in
the Notes, either in person, by court appointed receiver or by agent, with or
without bringing any action or proceeding, demand and thereupon take possession
of the Premises, to have, hold, manage, lease and operate the same on such terms
and for such period of time as Assignee may deem proper, and either with or
without taking possession of the Premises in its own name, demand and receive
the Rents in the possession of Assignor at the time of Assignee's written demand
or collected thereafter, including those past due and unpaid, with full power to
make from time to time all alterations, renovations, repairs, or replacements
thereto or thereof as may seem proper to Assignee, and to apply such Rents to
the payment of: (a) all reasonable expenses of managing the Premises, including,
without limitation, the salaries, fees and wages of the managing agent and such
other employees as Assignee may deem necessary or desirable, all taxes, charges,
claims, assessments, liens, premiums for all insurance which Assignee may deem
necessary or desirable, costs of renovations, repairs, or replacements, and all
expenses incident to taking and retaining possession of the Premises and
protecting and preserving the same; or (b) the principal sum and interest
thereon of the Notes, together with all costs and attorneys' and paralegals'
fees and costs; all in such order or priority as Assignee in its sole discretion
may determine, any custom or use to the contrary notwithstanding.
8. This Assignment is made and accepted without prejudice to any
of the rights and remedies possessed by Assignee under the remaining terms and
conditions of the Notes, the Loan Agreement, or the Mortgage, and the right of
Assignee to exercise its remedies under this Assignment may be exercised by
Assignee either prior to, simultaneously with, or subsequent to any action taken
by it under the remaining terms and conditions of the Notes, the Loan Agreement,
or the Mortgage. Each and every right, remedy and power granted to Assignee by
this Assignment will be cumulative and in addition to any other right, remedy
and power given by the remaining terms and conditions of the Notes, the Loan
Agreement, the Mortgage or this Assignment, or now or hereafter existing in
equity, at law or by virtue of statute or otherwise. Nothing contained in this
Assignment, and no act done or omitted by Assignee pursuant to the powers and
rights granted it hereunder, nor the failure of Assignee to avail itself of any
of the rights and remedies under this Assignment, will be construed or deemed to
be a waiver of any of Assignee's rights and remedies under this Assignment, nor
will such exercise or omission to exercise of the powers and rights granted
Assignee hereunder be deemed to constitute
4
<PAGE> 6
a waiver of its rights and remedies under the remaining terms and conditions of
the Notes, the Loan Agreement, or the Mortgage.
9. Assignee may take or release other security for the payment of
the indebtedness under the Notes and the Mortgage, may release any party
primarily or secondarily liable therefor, and may apply any other security held
by it to the satisfaction of such indebtedness without prejudice to any of its
rights under this Assignment.
10. The term "Lease" or "Leases" as used herein, means said Leases
hereby assigned or any extension or renewal thereof, and any leases subsequently
executed during the term of this Assignment covering the Premises or any part
thereof. At Assignee's request, Assignor will assign and transfer to Assignee
any and all subsequent leases upon all or any part of the Premises and to
execute and deliver at the request of Assignee all such further assurances and
assignments in the Premises as Assignee will require from time to time in its
sole discretion.
11. This Assignment, together with the covenants and warranties
therein contained, shall inure to the benefit of Assignee and any subsequent
holder of the Notes and the Mortgage shall be binding upon Assignor, their
successors, executors, personal representatives, and assigns, and any subsequent
owner of the Premises.
12. This Assignment shall expire and terminate upon the payment in
full of the Notes and any other Indebtedness secured by the Mortgage and any
cancellation, satisfaction or release of the Mortgage shall constitute a
cancellation, satisfaction, or release of this Assignment. In the event that a
specific property is released from the lien of the Mortgage, then such property
and the Leases relating to it shall, effective with the release, also be
released from this Assignment.
13. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ASSIGNOR, THE ASSIGNEE, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THIS ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT
FOR THE LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE SUBJECT TO NO
EXCEPTIONS.
5
<PAGE> 7
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6
<PAGE> 8
IN WITNESS WHEREOF, Assignor has executed this Assignment under seal
the day and year first above written.
Signed, sealed and delivered in ASSIGNOR:
the presence of:
KOGER EQUITY, INC.,
a Florida corporation
/s/ Alan C. Sheppard, Jr.
- --------------------------------
Print Name: Alan C. Shepard, Jr. By: /s/ G. Danny Edwards
-------------------- --------------------------
Name: G. Danny Edwards
--------------------------
/s/ Janice R. Long Title: Treasurer
- -------------------------------- --------------------------
Print Name: Janice R. Long
-------------------- [AFFIX CORPORATE SEAL]
STATE OF Georgia:
--------
COUNTY OF Camden:
-------
I, Dee Price , a Notary Public in and for said County in said State or
said state at large, hereby certify that G. Danny Edwards, whose name as the
Treasurer of KOGER EQUITY, INC., a Florida corporation, is signed to the
foregoing instrument and who is personally known to me acknowledged before me on
this day that, being informed of the contents of the said instrument, he, as
such officer 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 and official seal of office, this 30th day of
December, 1998.
(NOTARIAL SEAL) /s/ Dee Price
----------------------------------------------------
Notary Public
Print Name: Dee Price
----------------------------------------
My Commission Expires: Feb. 1, 1999
-----------------------------
Commission No. Notary Public, Camden County, Georgia
-------------------------------------
7
<PAGE> 9
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
8
<PAGE> 1
EXHIBIT 10(k)(3)(c)
ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
- --------------------------------------------------------------------------------
ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
- --------------------------------------------------------------------------------
THIS ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS (this "Assignment")
is made and executed this 30th day of December, 1998, by
KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Lender"), for the
Lenders (as such term is defined in the Loan Agreement, as hereinafter defined),
whose address is 301 South College Street, Charlotte, North Carolina 28288
Attention: First Union Capital Markets Group. The terms Borrower and Lender,
whenever hereinafter used will be construed to refer to and include the heirs,
legal representatives, executors, administrators, successors and assigns of said
parties.
BACKGROUND. Borrower is indebted to Lender (the "Loan") pursuant to the
following Substitution Revolving Promissory Notes and Revolving Promissory
Notes: (i) Substitution Revolving Promissory Note dated as of even date herewith
made by Borrower payable to the order of FUNB in the original principal amount
of $45,000,000, (ii) the Substitution Revolving Promissory Note dated as of even
date herewith made by Borrower payable to the order of AmSouth in the original
principal amount of $35,000,000, (iii) the Substitution Revolving Promissory
Note dated as of even date herewith made by Borrower payable to the order of GFB
in the original principal amount of $35,000,000, (iv) the Revolving Promissory
Note dated as of even date herewith made by Borrower payable to the order of
Citizens in the original principal amount of $20,000,000, and (v) the Revolving
Promissory Note dated as of even date herewith made by Borrower payable to the
order of Compass in the original principal amount of $15,000,000 (the "Notes"),
secured by and subject to, among other documents, that certain Mortgage,
Assignment of Leases and Rents, and Security Agreement (the "Mortgage")
encumbering real property and improvements now or hereafter located thereon
located in Jefferson County, Alabama, and being more particularly described on
attached Exhibit A, (the "Property"), and by a certain Second Amended and
Restated Revolving Credit Loan Agreement (the "Loan Agreement") setting forth
certain terms, covenants and conditions with respect to such indebtedness, all
being dated as of even date herewith, given by Borrower to Lender, which Notes,
1
<PAGE> 3
Mortgage and Loan Agreement, this Assignment, and other related loan documents,
together with any modifications, extensions and amendments thereof, collectively
are referred to herein as the "Loan Documents." In order to further secure the
Obligations, as such term is defined in the Loan Agreement, Lender has
requested, and Borrower has agreed to provide, this Assignment on the terms,
covenants and conditions hereinafter set forth.
Capitalized terms not defined herein shall have the meanings ascribed
to them in the Loan Agreement.
ACCORDINGLY, for good and valuable consideration, and as an inducement
to Lender to make the Loan to Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
for the purpose of further securing the observance and performance of the
Obligations, Borrower and Lender hereby agree as follows:
1. Assignment of Contract Documents. Borrower hereby grants, transfers
and assigns to Lender, its successors and assigns, all of Borrower's right,
title and interest in and to those contracts, licenses, permits, agreements,
approvals and other documents described on attached Exhibit B (hereinafter,
together with any changes, extensions, revisions, modifications or guarantees of
performance thereof, called the "Contract Documents") relating to the
acquisition, development, ownership or use of the Property. Lender agrees that
upon the payment and performance in full of all the Obligations, this assignment
shall become null and be void and of no further force and effect.
2. Representations and Warranties. Borrower represents and warrants to
Lender, its successors and assigns, as follows:
(a) There is no assignment of any of Borrower's rights under any of the
Contract Documents to any person or entity, other than Lender.
(b) Borrower is not in default under any of the Contract Documents and
knows of no default on the part of any other party to any of the Contract
Documents.
(c) Borrower has not done nor omitted to do any act so as to be
estopped from exercising any of its rights under any of the Contract Documents.
(d) Borrower is not prohibited under any agreement with any other
person or under any judgment or decree from the execution and delivery of this
assignment or the performance of each and every covenant of Borrower hereunder
or in the Contract Documents, except as may be set forth in the Contract
Documents.
2
<PAGE> 4
(e) No action has been brought or threatened which would in any way
prohibit or impair the execution and delivery of this assignment or the
performance of each and every covenant of Borrower hereunder or in the Contract
Documents.
3. Performance of Obligations under Contract Documents. Borrower will
(i) fulfill, perform and observe each and every condition and covenant of
Borrower contained in any of the Contract Documents; (ii) give prompt notice to
Lender of any claim of default under any of the Contract Documents given to
Borrower or given by Borrower, together with a complete copy or statement of any
information submitted or referenced in support of such claim; (iii) at the sole
cost and expense of Borrower and in the exercise of sound business judgment,
enforce the performance and observance of each and every covenant and condition
of the Contract Documents to be performed or observed by any other party to any
of the Contract Documents; and (iv) appear in and defend any action growing out
of or in any manner connected with any of the Contract Documents.
4. Modifications and Waivers of Contract Documents. Except in the
ordinary course of business and in the exercise of sound business judgment,
Borrower will not (i) modify the terms of the Contract Documents unless required
so to do by the terms of the Contract Documents or by law; or (ii) waive, or
release any person from the observance or performance of any obligation to be
performed under the terms of the Contract Documents or liability on account of
any warranty given by them, unless consented to by Lender in its reasonable
discretion.
5. Rights Assigned. The rights assigned hereunder include all of
Borrower's right and title (i) to modify the Contract Documents; (ii) to
terminate the Contract Documents; and (iii) to waive, or release the performance
or observance of any obligation or condition of the Contract Documents;
provided, however, these rights shall not be exercised by Lender unless Borrower
is in default hereunder or under the other Loan Documents.
6. Defaults. Borrower shall be in default under this Assignment upon
the occurrence of any of the following events:
(a) Should Borrower fail to perform or observe any covenant of Borrower
contained in this Assignment, and the same is not cured within ten (10) days
after notice of such default is provided by Lender to Borrower;
(b) Should any representation or warranty of Borrower herein contained
prove untrue or misleading in any material respect; or
(c) Should Borrower fail to perform promptly any undertaking of
Borrower set forth in any of the Contract Documents, and the same is not cured
within ten (10) days after notice of such default is provided by Lender to
Borrower.
3
<PAGE> 5
A default of Borrower under this Assignment will constitute an Event of
Default under the other Loan Documents.
7. Remedies.
(a) Upon the occurrence of a default hereunder, or an Event of Default
as defined in the Loan Agreement, Lender may exercise its remedies as provided
in the Loan Agreement, and in addition to such remedies may take possession of
all Contract Documents constituting plans and specifications, site plans,
surveys and architectural or engineering drawings or sketches reasonably
required by Lender in the exercise of its rights and remedies hereunder.
Furthermore, should Borrower fail to perform or observe any covenant or comply
with any condition contained in any of the Contract Documents and such failure
would cause irreparable injury to the Property including, but not limited to,
the revocation or expiration of any permit or license issued in connection with
the use of the Property, then Lender, but without obligation to do so, without
notice to or demand on Borrower, and without releasing Borrower from its
obligations to do so, may perform such covenant or condition and, to the extent
that Lender shall incur any costs or pay any monies in connection therewith,
including any costs or expenses of litigation, such costs, expense or payment
shall be included in the indebtedness secured hereby and by the Mortgage and
shall bear interest from the payment of such costs, monies or expenses thereof
at the then applicable rate set forth in the Notes for amounts advanced by
Lender on behalf of Borrower.
(b) Borrower hereby indemnifies and agrees to hold harmless Lender from
and against any and all losses, costs, damages, fees and expenses whatsoever
associated with the exercise of Lender's rights under this Assignment and shall
release Lender from all liability whatsoever for the exercise of such rights and
all actions taken pursuant thereto, not including any negligent actions of
Lender.
(c) The remedies herein provided shall be in addition to and not in
substitution for the rights and remedies which would otherwise be vested in
Lender in any of the other Loan Documents, all of which rights and remedies are
specifically reserved by Lender. The failure to exercise any of the remedies
herein provided shall not constitute a waiver thereof, nor shall the use of any
of the remedies hereby provided prevent the subsequent or concurrent resort to
any other remedy or remedies. It is intended that this clause shall be broadly
construed so that all remedies herein provided for or otherwise available to
Lender shall remain available to Lender until all sums due it by reason of this
Assignment have been paid to it in full and all obligations incurred by it in
connection with the construction or operation of the contemplated improvements
on the Property have been fully discharged without loss or damage to Lender.
4
<PAGE> 6
8. No Obligation of Lender. Lender shall not be obligated to perform or
discharge any obligation of Borrower under any of the Contract Documents, and
Borrower agrees to indemnify and hold Lender harmless against any and all
liability, loss or damage which Lender may incur under any of the Contract
Documents or under or by reason of this assignment and of and from all claims
and demands whatsoever which may be asserted against it by reason of an act of
Lender under any of the terms of this assignment or under the Contract
Documents, provided that Lender does not provide such acts in a negligent
manner.
9. Miscellaneous. This Assignment shall be binding upon Borrower, its
successors and assigns, and shall inure to the benefit of Lender, its
successors, successors in title and assigns. If any term of this Assignment or
any application thereof will be invalid, illegal or unenforceable, the remainder
of this Assignment and any other application of such term will not be affected
thereby. This Assignment shall be governed by and construed in accordance with
the laws of the State of Alabama. In the event of conflict between the terms and
conditions of this Assignment and the terms and conditions of the Loan
Documents, the terms and conditions of the Loan Documents will govern.
10. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
BORROWER, THE AGENT, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND ASSIGNS
(ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH ACKNOWLEDGE AND
AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR ARISING OUT OF
THIS ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE PARTIES RELATED
THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY
OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT FOR THE
LENDERS TO MAKE THE LOAN TO BORROWER, AND SHALL BE SUBJECT TO NO EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
<PAGE> 7
IN WITNESS WHEREOF, the undersigned have caused this Assignment to be
executed by their authorized officers as of the day and year first above
written.
BORROWER:
Signed, sealed, and delivered KOGER EQUITY, INC.,
in the presence of: a Florida corporation
/s/ Janice R. Long By: /s/ G. Danny Edwards
- ------------------------------ ----------------------------
Name: Janice R. Long Name: G. Danny Edwards
------------------------- -------------------------
Title: President
------------------------
/s/ JA Hoener
- ------------------------------
Name: James A. Hoener
LENDER:
FIRST UNION NATIONAL BANK, a
national association, as Agent
/s/ Alan C. Sheppard, Jr. By: /s/ J. Andrew Hogshead
- ------------------------------ ----------------------------
Name: Alan C. Sheppard, Jr. Name: J. Andrew Hogshead
------------------------- -------------------------
Title: Vice President
-------------------------
/s/ Nancy Hoffmann
- ------------------------------
Name: Nancy Hoffmann
Schedule of Exhibits:
Exhibit A Description of Property
Exhibit B Description of Contract Documents
6
<PAGE> 8
EXHIBIT A
DESCRIPTION OF PROPERTY
<PAGE> 9
EXHIBIT B
DESCRIPTION OF CONTRACT DOCUMENTS
(a) All contracts or agreements, now existing or hereafter executed, with
general contractors, subcontractors, materialmen, suppliers and/or
laborers in connection with or pertaining to the construction of
buildings or any other improvements on the Property.
(b) Any contracts or agreements for land surveyor services between Borrower
and any surveyor which is entered into with respect to the surveys to
be prepared for the Property; and all surveys, surveyor costs, and maps
prepared by any surveyor in connection with the Property.
(c) Any agreements for architectural/engineering services between Borrower
and any architect/engineer which is entered into with respect to the
construction of improvements on the Property, and all drawings, plans
and specifications, and site plans prepared by any architect/engineer
in connection with the construction of improvements on the Property.
(d) All warranties and guaranties relating to improvements now or hereafter
constructed or installed on the Property.
(e) Any management agreement between Borrower and a project operation
manager related to the Property.
(f) Any development fee agreement between Borrower and a project
development manager related to the Property.
(g) Any and all permits, licenses or other authorizations and approvals in
favor of or in the name of Borrower or running with title to the
Property, now or hereafter existing or granted, with respect to the
ownership, development, use and occupancy of the Property for its
intended purpose, including without limitation, building and excavation
permits, plat and subdivision approvals, certificates of occupancy or
completion, permits for driveway connection and highway signalization,
storm water management, water wells, water distribution systems, sewage
collection systems, dredge and fill, environmental protection,
historical or archaeological protection, and any other permit, license,
or other authorization necessary or advisable to comply with any
governmental requirements concerning the Property or its intended use,
or to comply with any private agreement concerning such Property to
which
<PAGE> 10
Borrower is a party or under or in compliance with which Borrower is
bound to perform.
(h) Any and all utility service agreements wherein a utility company and/or
a governmental utility service provider has agreed to provide utilities
to the Property.
(i) Any agreement to provide sewer effluent for irrigation of the Property.
(j) All contracts, binders or other agreements between Borrower and a buyer
of the Property for the purchase and sale of all or any part of the
Property, including such contract binders or other agreements which may
hereafter come into existence with respect to the Property.
<PAGE> 1
EXHIBIT 10(k)(3)(d)
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
THIS ENVIRONMENTAL INDEMNIFICATION AGREEMENT (this "Agreement") is made
and executed as of this 30th day of December, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("FUNB"), for the
Lenders (as such term is defined in the Loan Agreement, as hereinafter defined)
(FUNB and such Lenders are collectively referred to herein as the "Lenders"),
whose address is 301 South College Street, Charlotte, North Carolina 28288
Attention: First Union Capital Markets Group, which terms Borrower and Lenders,
whenever hereinafter used will be construed to refer to and include the heirs,
legal representatives, executors, administrators, successors and assigns of said
parties.
RECITALS:
A. Borrower has obtained financing from Lenders pursuant to that
certain Second Amended and Restated Revolving Credit Loan Agreement dated as of
even date herewith (hereinafter, together with any and all extensions, renewals,
modifications, replacements and substitutions thereof, referred to as the "Loan
Agreement") and those certain Substitution Revolving Promissory Notes and
Revolving Promissory Notes dated as of even date herewith (hereinafter, together
with any and all extensions, renewals, modifications, replacements and
substitutions thereof, referred to as the "Loan").
B. Borrower's obligations under the Loan are secured in part by a
Mortgage, Assignment of Leases and Rents and Security Agreement in favor of
Lenders (the "Mortgage") encumbering real property located in Jefferson County,
Alabama, and being more particularly described on attached Exhibit A (the
"Property").
C. As a condition precedent to and as a material inducement for
Lenders' agreement to provide the Loan to Borrower, Lenders have required
Borrower to execute and deliver this Agreement, it being acknowledged and
understood by Borrower that Lenders otherwise are not willing to make or provide
the Loan.
D. Borrower has obtained a Phase I Environmental Site Assessment
dated February 18, 1998, prepared by Bhate Environmental Associates, Inc. and a
Phase I Environmental Site Assessment dated December 4, 1998, prepared by
Turner, Hart & Hickman, P.C., for the Property referenced therein (collectively,
the "Environmental
1
<PAGE> 3
Assessment"), and has delivered a copy of the same to Lenders. Lenders intend to
rely on the Environmental Assessment in making the Loan.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and as a material inducement to Lenders to make
or provide the Loan to Borrower, Borrower hereby covenants and agrees with
Lenders as follows:
1. Definitions. The following terms as used in this Agreement
will have the meanings set forth below:
(a) "Hazardous Substances" will mean any hazardous or toxic
substances, materials or wastes, including without limitation any flammable
explosives, radioactive materials, friable asbestos, kepone, polychlorinated
biphenyls (PCB's), electrical transformers, batteries, paints, solvents,
chemicals, petroleum products, or other man-made materials with hazardous,
carcinogenic or toxic characteristics, and such other solid, semi-solid, liquid
or gaseous substances which are radioactive, toxic, ignitable, corrosive,
carcinogenic to human health, those substances, materials, and wastes listed in
the United States Department of Transportation Table (49 CFR 972.101) or by the
Environmental Protection Agency, as hazardous substances (40 CFR Part 302, and
amendments thereto) provided all such substances, materials and wastes are or
become regulated under applicable local, state or federal law relating to (i)
petroleum, (ii) asbestos, (iii) PCB's, or (iv) materials designated as a
"hazardous substance," "hazardous waste," "hazardous materials," "toxic
substances," "contaminants," in each case under any applicable Environmental
Laws.
(b) "Environmental Laws" will mean any applicable present or
future federal, state or local laws, ordinances, rules or regulations pertaining
to Hazardous Substances, including without limitation the following statutes and
regulations, as amended from time to time: (i) the Federal Clean Air Act, 42
U.S.C. Section 7401 et seq.; (ii) the Federal Clean Water Act, 33 U.S.C. Section
1151 et seq.; (iii) the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq. ("RCRA"); (iv) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
("CERCLA") and the Superfund Amendments and Reauthorization Act of 1986, Pub. L.
No. 99-499, 100 Stat. 1613 ("SARA"); (v) the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1802; (vi) the National Environment Policy Act, 42 U.S.C.
Section 1857 et seq.; (vii) The Toxic Substance Control Act of 1976, 15 U.S.C.
Section 2601 et seq.; (viii) applicable regulations of the Environmental
Protection Agency, 33 CFR and 40 CFR relating to hazardous substances; and (ix)
and similar statutes, rules and regulations under the laws of the State of
Alabama.
(c) "Hazardous Condition" will mean the presence, discharge,
disposal, storage or release of any Hazardous Substance, in violation of any
Environmental Laws, on or in
2
<PAGE> 4
the improvements, air, soil, groundwater, surface water or soil vapor on or
about the Property, or that migrates, flows, percolates, diffuses or in any way
moves onto or into the improvements, air, soil, groundwater, surface water or
soil vapor on or about the Property, or from the Property into adjacent
property.
(d) "Claims" will mean, individually and collectively, any claims,
actions, administrative proceedings, judgments, damages, punitive damages,
penalties, fines, costs, liabilities, sums paid in settlement, interest, losses
or expenses (including reasonable attorneys' and paralegals' fees and costs,
whether incurred in enforcing this Agreement, collecting any sums due hereunder,
settlement negotiations, at trial or on appeal), reasonable consultant fees and
reasonable expert fees, together with all other reasonable costs and expenses of
any kind or nature, that arise directly from or in connection with the existence
of a Hazardous Condition, whether occurring before, on or after the date of this
Agreement or caused by any person or entity.
Without limiting the generality of the foregoing definition, Claims
specifically will include claims, whether by related or third parties, for
personal injury or real or personal property damage, and capital, operating and
maintenance costs incurred in connection with any Remedial Work.
However, notwithstanding the foregoing, Claims will not be deemed to
include claims, actions, administrative proceedings, judgments, damages,
punitive damages, penalties, fines, costs, liabilities, sums paid in settlement,
interest, losses or expenses, that arise in connection with any Hazardous
Condition that is determined by proper judicial or administrative procedure to
have been introduced to the Property from and after the date upon which Lenders
take possession of the Property pursuant to an Order of Receivership,
foreclosure or deed in lieu of foreclosure, or which is caused by the actions of
Lenders.
(e) "Remedial Work" will mean any investigation or monitoring of
site conditions, any clean-up, containment, remediation, removal or restoration
work required or performed by any federal, state or local governmental agency or
political subdivision or performed by any nongovernmental entity or person due
to the existence of a Hazardous Condition.
2. Compliance with Environmental Laws; Disclosure of Hazardous
Conditions. Except as to those conditions (the "Existing Conditions") as
specifically may be disclosed in the Environmental Assessment, Borrower hereby
represents, warrants, covenants and agrees in all material respects to and with
Lenders that all operations or activities upon, or any use or occupancy of the
Property by Borrower, any tenant or other occupant, to the best of Borrower's
knowledge, is presently and will at all times until Borrower's conveyance of the
Property or foreclosure of Mortgage be in compliance with all Environmental
Laws; that Borrower has not at any time engaged in or permitted, nor has any
existing or previous tenant or occupant of the Property engaged in or permitted
to the best of Borrower's knowledge the occurrence of any Hazardous Condition,
except as specifically may be
3
<PAGE> 5
disclosed in the Environmental Assessment; and that to the best of Borrower's
knowledge, there does not now exist nor is there suspected to exist any
Hazardous Condition on or about the Property, except as specifically may be
disclosed in the Environmental Assessment.
3. Indemnification. Borrower hereby indemnifies and agrees to
protect, defend and hold Lenders harmless, which for purposes of this paragraph
will be deemed to include the directors, officers, shareholders, employees and
agents of Lenders, from and against any Claims other than claims arising from
Lenders' or such other included parties' gross negligence or willful misconduct,
including, without limitation, any claims relating to an Existing Condition. In
the event that Lenders suffer or incur any Claims, Borrower will pay to Lenders
the total of all such Claims suffered or incurred by Lenders upon demand
therefor by Lenders.
4. Remedial Work. In the event that any Remedial Work with
respect to any Hazardous Conditions that could result in a Claim is required
under any Environmental Laws by any judicial order, or by any governmental
entity, or in order to comply with the terms, covenants and conditions of this
Agreement or of any other agreements affecting the Property, Borrower will
perform or cause to be performed the Remedial Work in compliance with such law,
regulation, order or agreement. All Remedial Work will be performed by one or
more contractors, selected by Borrower and under the supervision of a consulting
environmental engineer selected by Borrower, and approved in advance by Lenders.
All costs and expenses of Remedial Work will be paid by Borrower including
without limitation the charges of such contractor(s) and the consulting
environmental engineer, and Lenders' reasonable attorneys' and paralegals' fees
and costs incurred in connection with monitoring or review of all Remedial Work.
In the event that Borrower fails to timely commence, or cause to be commenced,
or fails to diligently prosecute to completion, such Remedial Work, Lenders may,
but will not be required or have any obligation to, cause such Remedial Work to
be performed, and all costs and expenses thereof, or incurred in connection
therewith, will thereupon constitute Claims. All such Claims will be due and
payable by Borrower upon demand therefor by Lenders.
5. Permitted Contests. Notwithstanding any provision of this
Agreement to the contrary, provided that (i) no default has occurred and is
continuing under the Loan Agreement, (ii) no Lenders nor any assignee of any
Lenders' interest (including any person having a beneficial interest) in the
Property, the Loan and the Loan Documents will be exposed or subjected to civil
or criminal liability, and (iii) the lien and security interest of Lenders or
any such assignee in the Property, the Loan, the Loan Documents, or the payment
of any sums to be paid under the Loan Documents, is not jeopardized or in any
way adversely affected, Borrower may contest or cause to be contested, by
appropriate action, the application, interpretation or validity of any
Environmental Laws or any agreement requiring any Remedial Work pursuant to a
good faith dispute regarding such application, interpretation or validity of
such Environmental Laws or agreement requiring
4
<PAGE> 6
such Remedial Work. During the pendency of any such permitted contest, Borrower
may delay performance of Remedial Work or compliance with the Environmental Laws
or agreement requiring such Remedial Work, provided that (i) Borrower actually
contests and prosecutes such contest by appropriate proceedings conducted in
good faith and with due diligence to resolution, (ii) prior to any such delay in
compliance with any Environmental Laws or any Remedial Work requirement on the
basis of a good faith contest of such requirement, Borrower will have given
Lenders written notice that Borrower intends to contest or will contest or cause
to be contested the same, and will have given such security or assurances as
Lenders reasonably may request to ensure compliance with the legal requirements
pertaining to the Remedial Work (and payment of all costs, expenses, interest
and penalties in connection therewith) and to prevent any sale, forfeiture or
loss of all or any part of the Property by reason of such noncompliance, delay
or contest, and (iii) prior to any such delay in compliance with any
Environmental Laws or any Remedial Work requirement on the basis of a good faith
contest of such requirement, Borrower will have taken such steps as may be
necessary to prevent or mitigate any continuing occurrence of any existing or
suspected Hazardous Condition giving rise to the contested Remedial Work
requirement. Subject to the terms and conditions set forth above, during the
pendency of any such permitted contest resulting in a delay of performance of
any required Remedial Work, Lenders agree that it will not perform such Remedial
Work requirement on behalf of Borrower.
6. Subrogation of Indemnity Rights. If Borrower fails to perform
its obligations under paragraphs 3 and 4 above, Lenders will be subrogated to
any rights Borrower may have under any indemnifications from any present, future
or former owners, tenants or other occupants or users of the Property relating
to the matters covered by this Agreement.
7. Assignment by Lenders. No consent by Borrower will be required
for any assignment or reassignment of the rights of Lenders hereunder to one or
more purchasers of the Loan, the Loan Documents or Lenders' interest in the
Property under the Mortgage.
8. Merger, Consolidation or Sale of Assets. Subject to
limitations regarding disposition of any interest or control in Borrower as may
be set forth in the Loan Documents, in the event of a disposition involving
Borrower or all or a substantial portion of the assets of Borrower to one or
more persons or other entities or the merger or consolidation of Borrower with
another entity, the surviving entity or transferee of assets, as the case may
be, will (i) be formed and existing under the laws of a state, district or
commonwealth of the United States of America, and (ii) deliver to Lenders an
acknowledged instrument in recordable form assuming all obligations, covenants
and responsibilities of Borrower under this Agreement.
9. Survival; Independent Obligations. Notwithstanding anything to
the contrary contained in the Loan Agreement, the obligations of Borrower under
this Agreement will survive (a) the consummation of the Loan transaction
described above; (b) satisfaction of
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<PAGE> 7
all terms and conditions to be performed by or on behalf of Borrower under the
Loan Agreement; (c) termination, in accordance with their respective terms, of
the Loan transaction and the Loan Agreement; (d) any assumption of Borrower's
obligations under the Loan Agreement by a successor to Borrower (whether or not
Lenders approved such assumption and whether or not Borrower was released from
liability under the Loan Agreement); (e) conveyance of title to all or any
portion of the Property to any third party, and subsequent reconveyance of all
or any portion of the Property by any such third party to subsequent
transferees; and (f) conveyance of title to the Property to Lenders through
power of sale, process of foreclosure, or by conveyance in lieu of foreclosure
of the Mortgage; provided, however, that Borrower will not be liable for damages
resulting from Hazardous Conditions which are determined either by a written
agreement or stipulation between Borrower and Lenders or, if Borrower and
Lenders are unable to agree or stipulate, a final judicial or administrative
action (after all available appeals have been taken or waived) to have been
introduced to the Property from and after the date upon which Lenders take
possession of the Property pursuant to an Order of Receivership, power of sale,
process of foreclosure, or deed in lieu of foreclosure; provided, however, that
the obligations of Borrower under this Agreement will finally cease and
terminate upon the final expiration of any applicable statute of limitation of
actions as to any potential Claim.
The obligations of Borrower under this Agreement are separate and
distinct from the obligations of Borrower under the Loan Agreement. This
Agreement may be enforced by Lenders without regard to any other rights and
remedies Lenders may have against Borrower under the Loan Agreement and without
regard to any limitations on Lenders' recourse as may be provided in the Loan
Agreement; provided, however, that a default by Borrower under this Agreement
will constitute a default under the Loan Agreement. Enforcement of this
Agreement will not be deemed to constitute an action for recovery of Borrower's
indebtedness under the Loan Agreement nor for recovery of a deficiency judgment
against Borrower following exercise of Borrower's remedies under the Mortgage.
Borrower expressly and specifically agrees that Lenders may bring and prosecute
a separate action or actions against Borrower hereunder whether or not Lenders
have brought an action against Borrower under the Loan Agreement.
10. Default Interest. Any Claims and other payments required to be
paid by Borrower to Lenders under this Agreement which are not paid on demand
therefor will thereupon be considered "Delinquent," and will result in and
constitute a default hereunder. In addition to all other rights and remedies of
Lenders against Borrower as provided herein, or under applicable law, Borrower
will pay to Lenders, immediately upon demand therefor, Default Interest (as
defined below) on any such payments which are or have become Delinquent. Default
Interest will be paid by Borrower from the date such payment becomes Delinquent
through and including the date of payment of such Delinquent sums. As used
herein, "Default Interest" will be equal to the rate of interest charged for a
payment default under the Loan Agreement, but in any event not to exceed the
maximum rate of interest
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<PAGE> 8
permitted to be contracted for under Alabama law. Borrower expressly and
specifically agrees that any Default Interest charged to Borrower hereunder will
in no manner or respect constitute a penalty or interest under the Loan
Agreement, with the express understanding that this Agreement and Borrower's
obligations hereunder constitute separate obligations of Borrower independent of
the Loan Agreement.
11. Administrative Agent for Lenders. The Lenders have appointed
FUNB to act as administrative agent on behalf of all of the Lenders in
connection with the Loan. Accordingly, FUNB shall be entitled to exercise the
rights and remedies of the Lenders hereunder as agent for each of the Lenders.
Any notice provided by FUNB to the Borrower shall be deemed provided to Borrower
by each of the Lenders, and any notice from Borrower which states it is to FUNB
as agent for the Lenders hereunder, shall be deemed to be given to each of the
Lenders.
12. Miscellaneous. If there is more than one party executing this
Agreement as an indemnitor, each such party agrees that (i) the obligations of
Borrower hereunder are joint and several, (ii) a release of any one or more such
parties or any limitation of this Agreement in favor of or for the benefit of
one or more such parties will not in any way be deemed a release of or
limitation in favor of or for the benefit of any other party, and (iii) a
separate action hereunder may be brought and prosecuted against one or more such
parties. If any term of this Agreement or any application thereof will be
invalid, illegal or unenforceable, the remainder of this Agreement and any other
application of such term will not be affected thereby. No delay or omission in
exercising any right hereunder will operate as a waiver of such right or any
other right. This Agreement will be binding upon, inure to the benefit of and be
enforceable by Borrower and Lenders, and their respective successors and
assigns. This Agreement will be governed and construed in accordance with the
laws of the State of Alabama. The parties hereby stipulate that jurisdiction and
venue for purposes of enforcement of this Agreement and adjudication of the
respective rights and obligations of the parties shall be in the Alabama circuit
court in the judicial circuit in which the Property is located.
13. Conflict. In the event of conflict between the terms and
conditions hereunder and the terms and conditions of the Loan Agreement, the
terms and conditions of the Loan Agreement will govern.
14. Waiver of Defenses. In any action, suit or proceeding relating
to this Agreement, Borrower and Lenders waive the right to interpose a defense
of laches, failure of consideration or mutuality of remedy.
[Remainder of page left intentionally blank]
7
<PAGE> 9
IN WITNESS WHEREOF, Borrower and Lenders have executed this Agreement
as of the date first above written.
BORROWER:
Signed, sealed and delivered KOGER EQUITY, INC., a Florida
in the presence of: corporation
/s/ Janice R. Long By: /s/ G. Danny Edwards
- ----------------------------------- -----------------------------
Witness Janice R. Long Name: G. Danny Edwards
----------------------------
Title: Treasurer
---------------------------
/s/ J A Hoener
- ----------------------------------
Witness James A. Hoener
LENDER:
Signed, sealed and delivered FIRST UNION NATIONAL BANK, a
in the presence of: national association, as Agent
/s/ Alan C. Sheppard, Jr. By: /s/ Andrew J. Hogshead
- ----------------------------------- -----------------------------
Witness Alan C. Sheppard, Jr. Name: /s/ J. Andrew Hogshead
----------------------------
Title: Vice President
---------------------------
/s/ Nancy Hoffmann
- ----------------------------------
Witnesses Nancy Hoffmann
8
<PAGE> 10
EXHIBIT A
DESCRIPTION OF PROPERTY
<PAGE> 1
THIS INSTRUMENT PREPARED BY EXHIBIT 10(k)(4)(a)(i)
AND RECORD AND RETURN TO:
Alan C. Sheppard, Jr., Esq.
Leboeuf, Lamb, Greene & Macrae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, FL 32202-3650
- --------------------------------------------------------------------------------
SECOND AMENDED AND RESTATED DEED TO SECURE DEBT AND SPREADER,
ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK,
AS AGENT
Dated as of December 30, 1998
State: Georgia
Section:
Township:
Range:
County: DeKalb
Tax I.D.:
- --------------------------------------------------------------------------------
NOTE TO TAX COMMISSIONER: THIS INSTRUMENT SECURES A NOTE CONTAINING A MATURITY
DATE THREE (3) YEARS FROM THE DATE THEREOF AND, THEREFORE, SUCH NOTE IS A
"SHORT-TERM NOTE SECURED BY REAL ESTATE" AS SUCH TERM IS DEFINED IN OFFICIAL
CODE OF GEORGIA ANNOTATED SECTION 48-6-60. CONSEQUENTLY, NO INTANGIBLES TAX IS
DUE UPON THE RECORDATION OF THIS INSTRUMENT. SEE OFFICIAL CODE OF GEORGIA
ANNOTATED SECTION 48-6-61.
2
<PAGE> 2
SECOND AMENDED AND RESTATED DEED TO SECURE DEBT AND SPREADER,
ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT
THIS SECOND AMENDED AND RESTATED DEED TO SECURE DEBT AND SPREADER,
ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT (this "Indenture"), dated
as of December 30, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Grantor"), whose mailing address is
3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention:
J.C. Teagle, President,
to
FIRST UNION NATIONAL BANK, a national association, as Agent ("Grantee") for the
Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement of even date herewith (the "Loan Agreement").
For purposes of notices permitted or required to be given hereunder, Grantee's
mailing address is 301 South College Street, Charlotte, North Carolina 28288
Attention: First Union Capital Markets Group.
Capitalized terms not otherwise defined herein are defined in Article I.
This Indenture amends and restates that certain Amended and Restated Deed to
Secure Debt, Assignment of Leases and Rents and Security Agreement (the
"Original Indenture") recorded in Official Records Book 9767, Page 002, of the
Public Records of DeKalb County, Georgia, which Original Indenture was assigned
to Grantee pursuant to that certain Assignment of Deed to Secure Debt and
Related Loan Documents of even date herewith to be recorded in the Public
Records of DeKalb County, Georgia (the "Assignment").
WITNESSETH:
THIS INDENTURE WITNESSETH, that to secure (A) the payment, performance
and observance of all obligations of Grantor and all indebtedness heretofore or
hereafter from time to time advanced under the Loan Agreement and the payment of
any and all other indebtedness which this Indenture by its terms secures
including, without limitation, the payment of principal and interest on the
Notes which shall (1) be payable to the Lenders, (2) be payable in full not
later than December 30, 2001, and (3) bear interest at a floating rate as set
forth in Section 2.6 of the Loan Agreement; provided, that the maximum aggregate
principal amount of indebtedness secured hereby, other than for advances made
pursuant to Article XXII, Paragraph 22 hereof, shall in no event exceed
$150,000,000.00 (the "Indebtedness") and (B) the performance of the covenants
and agreements contained herein and in the Loan Agreement, and in consideration
of the aforesaid Indebtedness, Grantor hereby irrevocably grants, bargains and
sells, conveys, transfers, assigns, sets over, alienates, hypothecates and
pledges to Grantee and its
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<PAGE> 3
successors and assigns in and to all of the following property and rights
whether now owned or hereafter acquired by Grantor (collectively, the
"Property"):
(i) the Land;
(ii) all buildings, structures and other improvements
presently situated or hereafter constructed on the Land (collectively, the
"Improvements");
(iii) all rights, privileges, tenements, hereditaments,
rights of way, easements, rights and appurtenances belonging to or in any way
relating to either the Land or the Improvements;
(iv) all fixtures, machinery, equipment and other personal
property of all types owned by Grantor now or hereafter affixed to and used in
connection with the operation of the Land and Improvements, together with all
additions and accessions thereto, substitutions therefor and replacements
(collectively, the "Fixtures");
(v) all awards or payments, including interest thereon,
which may heretofore and hereafter be made with respect to the Land, the
Improvements or the Fixtures, whether from the exercise of the right of eminent
domain (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of said right), or for a change of grade of any
street, or for any other injury to or decrease in the value of Grantor's rights,
title or interest in and to the Land, the Improvements or the Fixtures;
(vi) all leases and other agreements affecting the use,
enjoyment or occupancy of the Land, the Improvements or the Fixtures now or
hereafter entered into (the "Leases") and rents, revenues, issues and profits
from the Land, the Improvements or the Fixtures (the "Rents") and all proceeds
from the sale or other disposition of the Leases and the right to receive and
apply the Rents to the payment of the Indebtedness;
(vii) all proceeds of and any unearned premiums on any
insurance policies covering the Land, the Improvements or the Fixtures,
including, without limitation, the right to receive and apply the proceeds of
any insurance, judgments, or settlements made in lieu thereof, for damage to the
Land, the Improvements or the Fixtures; and
(viii) the right, in the name and on behalf of Grantor, to
appear in and defend any action or proceeding brought with respect to Grantor's
right, title or interest in and to the Land, the Improvements or the Fixtures
and to commence any action or proceeding to protect the interest of Grantee in
the Land, the Improvements or the Fixtures;
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, for the use, benefit and behoof of Grantee, IN FEE SIMPLE
forever.
4
<PAGE> 4
PROVIDED ALWAYS, this Indenture is intended to operate and is to be
construed as a deed passing title to the Property to Grantee and is made under
those provisions of the existing laws of the State of Georgia relating to deeds
to secure debt, and not as a mortgage, and is given to secure the payment of the
Indebtedness. Should the Indebtedness be paid according to the tenor and effect
thereof when the same shall become due and payable, and should Grantor perform
all covenants herein in a timely manner, then this Indenture shall be cancelled
and surrendered by Grantee.
IN FURTHERANCE OF THE FOREGOING GRANTS (INCLUDING GRANTS OF SECURITY
INTERESTS), BARGAINS, SALES, ALIENATIONS, CONVEYANCES, CONFIRMATIONS, PLEDGES,
TRANSFERS AND ASSIGNMENTS, AND TO PROTECT THE PROPERTY AND THE SECURITY GRANTED
BY THIS INDENTURE, GRANTOR, FOR ITSELF AND FOR ITS SUCCESSORS AND ASSIGNS,
HEREBY WARRANTS, REPRESENTS, COVENANTS AND AGREES AS FOLLOWS:
ARTICLE I
1. Definitions. As used in this Indenture, the following
capitalized terms have the respective meanings set after them, such definitions
to be applicable equally to the singular and plural forms of such terms:
"AmSouth" shall mean AmSouth Bank, a state banking corporation.
"Citizens" shall mean Citizens Bank of Rhode Island, a Rhode Island
financial institution.
"Compass" shall mean Compass Bank, an Alabama banking corporation.
"Default" shall mean any condition or event which constitutes or which
would constitute an Event of Default either with or without notice or lapse of
time, or both.
"Default Rate" shall have the meaning assigned to such term in the Loan
Agreement.
"Event of Default" shall have the meaning assigned to such term in
Article V of this Indenture.
"FUNB" shall mean First Union National Bank, a national association.
"Fixtures" shall have the meaning assigned to such term in clause (iv)
of the Granting Clause of this Indenture.
"GFB" shall mean Guaranty Federal Bank, F.S.B., a federal savings bank.
5
<PAGE> 5
"Governmental Requirements" shall have the meaning assigned to such
term in the Loan Agreement.
"Grantee" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Grantor" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Impositions" shall mean, collectively, all taxes of every kind and
nature (including real and personal property, income withholding, profits and
gross receipts taxes), all charges for any easement or agreement maintained for
the benefit of any of the Property, all general and special assessments, levies,
permits, inspection and license fees, all water and sewer rents and other
utility charges, all ground rents, and all other public charges whether of a
like or different nature, even if unforeseen or extraordinary, imposed upon or
assessed against Grantor, Grantee or any portion of the Property as a result of
or arising in respect of the acquisition, occupancy, leasing, use or possession
thereof, or any activity conducted on the Property (including, without
limitation, any gross income tax, sales tax or excise tax levied by any
governmental body on or with respect to the Rents).
"Improvements" shall have the meaning assigned to such term in clause
(ii) of the Granting Clause of this Indenture.
"Indebtedness" shall have the meaning assigned to such term in the
Granting Clause of this Indenture.
"Indenture" shall mean this Second Amended and Restated Deed to Secure
Debt and Spreader, Assignment of Leases and Rents, and Security Agreement.
"Land" shall mean those certain parcels of real property located in the
County of DeKalb, State of Georgia, as more particularly described on Exhibit A
attached hereto and incorporated herein.
"Leases" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"Lenders" shall mean FUNB, AmSouth, GFB, Citizens, Compass, and any
other Lenders from time to time under the Loan Agreement.
"Loan Agreement" shall mean that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of December 30, 1998 between Grantor
and Grantee.
"Loan Documents" shall mean this Indenture, the Loan Agreement, the
Notes, the Security Deeds, the Lease Assignments, the Assignments of Contracts,
the Indemnification
6
<PAGE> 6
Agreement, and any other instrument, document, affidavits, or certificates given
by Borrower to the Agent or any trustee for the benefit of the Lenders in
support of, or evidencing or securing, the Loan.
"Notes" shall mean collectively (i) the Substitution Revolving
Promissory Note dated as of even date herewith made by Grantor payable to the
order of FUNB in the original principal amount of $45,000,000, (ii) the
Substitution Revolving Promissory Note dated as of even date herewith made by
Grantor payable to the order of AmSouth in the original principal amount of
$35,000,000, (iii) the Substitution Revolving Promissory Note dated as of even
date herewith made by Grantor payable to the order of GFB in the original
principal amount of $35,000,000, (iv) the Revolving Promissory Note dated as of
even date herewith made by Grantor payable to the order of Citizens in the
original principal amount of $20,000,000, and (v) the Revolving Promissory Note
dated as of even date herewith made by Grantor payable to the order of Compass
in the original principal amount of $15,000,000.
"Other Indenture" shall mean any mortgage, deed to secure debt, or deed
of trust given by Grantor to or in favor of Grantee to secure the Indebtedness,
other than this Indenture.
"Permitted Encumbrances" shall mean those covenants, restrictions,
reservations, liens, conditions and easements listed as exceptions to title as
set forth on Exhibit B attached hereto and incorporated herein.
"Person" shall mean any corporation, natural person, joint venture,
partnership, business trust, joint stock company, trust, unincorporated
organization, government or any department, agency or political subdivision
thereof.
"Property" shall have the meaning assigned to such term in the Granting
Clause of this Indenture.
"Rents" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"State" shall mean the State of Georgia.
"Taking" shall mean a taking or voluntary conveyance during the term
hereof of all or part of the Property, or any interest therein or right accruing
thereto or use thereof, as the result of or in lieu or in anticipation of the
exercise of the right of condemnation or eminent domain.
ARTICLE II
2. Representations and Warranties. Grantor represents and
warrants to Grantee that (a) it has full power, authority and legal right to
execute and deliver this
7
<PAGE> 7
Indenture and to grant a first deed to secure debt of the Property, (b) it holds
good and marketable fee simple title to the Land and good and marketable title
to the balance of the Property, (c) this Indenture constitutes a valid first
deed to secure debt of the Property, subject to the Permitted Encumbrances, and
(d) the Leases are in full force and effect in accordance with their respective
terms, have not been canceled or modified, and have not been assigned or
encumbered except to Grantee pursuant to this Indenture and the Loan Agreement,
and, to the best of Grantor's knowledge, no default exists under the Leases.
Grantor, at its expense, will warrant to Grantee and will defend its title to
the Property and the estate created by this Indenture against all claims and
demands, and will maintain and preserve such estate so long as the Indebtedness
secured by this Indenture remains outstanding, subject, however, to the
Permitted Encumbrances.
ARTICLE III
3. Affirmative Covenants. Until this Indenture and the estate
created hereby shall terminate in accordance with Article XVII, Grantor shall
comply with the following covenants:
(a) Recordation, Filing, Etc. At all times cause this Indenture
and each amendment or modification hereof or supplement hereto (and such
financing statements covering the Property under the Uniform Commercial Code as
in effect in the State as may be necessary or appropriate) to be recorded,
registered and filed and kept recorded, registered and filed in such manner and
in such places as appropriate, and comply with all applicable statutes and
regulations, in order to establish, preserve and protect the estate created
hereby and the rights of Grantee hereunder. Grantor shall pay, or shall cause to
be paid, all taxes, fees and other charges incurred in connection with such
recording, registration, filing and compliance.
(b) Maintenance and Repairs. Keep and maintain the Property in
good order, repair and operating condition (ordinary wear and tear excepted) and
make all repairs and replacements necessary to that end.
(c) Payment of Impositions and Utility Charges. Pay all
Impositions while the same may be paid without fine, penalty, interest or
additional cost, unless the same shall be contested in good faith and by
appropriate proceedings by Grantor in the manner permitted by the Loan
Agreement. Any Impositions which are payable in installments may be paid in
installments provided that Grantee is otherwise in compliance with the Loan
Agreement. Upon the written request of Grantee from time to time, Grantor will
furnish to Grantee official receipts or other satisfactory proof evidencing such
payments. In addition, Grantor will pay all utility charges as required by the
Loan Agreement. Grantor shall not be entitled to any credit on the Indebtedness,
by reason of the payment of any Imposition or utility charges or any part
thereof.
(d) Compliance with Governmental Requirements. Promptly (i) comply
with all Governmental Requirements unless the same shall be contested in good
faith and by
8
<PAGE> 8
appropriate proceedings by Grantor in the manner permitted by the Loan
Agreement, and (ii) procure, maintain and comply with all licenses or other
authorizations required for any use of the Property then being made, and for the
proper erection, installation, operation, repair and maintenance of the
Improvements and the Fixtures, or any part of either thereof.
(e) Insurance. Maintain insurance of the types and in the amounts
required by, and otherwise complying with the Loan Agreement and promptly
deliver, or cause to be promptly delivered, to Grantee any certificates or
evidence of such insurance as required under the Loan Agreement.
(f) Damage, Destruction or Taking. In the event of any damage,
destruction or Taking affecting all or any portion of the Property, Grantor
shall give immediate written and oral notice thereof to Grantee and proceed in
accordance with the terms of the Loan Agreement. In case of any such material
damage, destruction or Taking, Grantee shall be entitled to hold all insurance
proceeds, payments or awards on account thereof, to the same extent Grantor
would be entitled thereto under the Loan Agreement, and Grantor hereby
irrevocably assigns to Grantee all of its rights to any such insurance proceeds,
payments or awards. With respect to a Taking, and in accordance with its
obligations under the Loan Agreement, Grantor will file or prosecute or will
cause to be filed or prosecuted in good faith and with due diligence what would
otherwise be its claim for any such award or payment and cause the same to be
collected and paid over to Grantee. At the sole cost and expense of Grantor,
Grantee may elect to monitor or participate in, and if reasonably necessary, may
hire independent legal counsel to represent Grantee in connection with, any
claim or the claims payment process. Grantor will pay or cause to be paid all
costs and expenses reasonably incurred in connection with any Taking and the
seeking and obtaining of any award or payment in respect thereof. Unless an
Event of Default shall have occurred under the Loan Agreement, all sums so
received by Grantee shall be applied in accordance with the provisions of the
Loan Agreement.
(g) Notification of Default, Etc. Promptly after obtaining
knowledge thereof, notify Grantee of any Default hereunder or under the Loan
Agreement or of any action or proceeding materially and adversely affecting the
Property.
(h) Corporate Existence. Preserve and keep in full force and
effect its corporate existence, rights and franchises and privileges as a
corporation under the laws of the State of Georgia and comply with all laws
applicable to it, and do or cause to be done all things necessary to preserve
and to keep in full force and effect its right to own property in the State of
Georgia.
(i) Inspection. Permit the Grantee or its authorized
representatives to inspect the Property during usual business hours.
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<PAGE> 9
ARTICLE IV
4. Negative Covenants. Without the prior written consent of
Grantee, Grantor will not directly or indirectly create or permit to be created
or to remain and will discharge or will cause to be discharged any mortgage,
charge, lien or encumbrance on, or attachment or pledge of, or conditional sale
or other title retention agreement with respect to, the Property or any part
thereof, its interest or the interests of Grantee therein, or the Rents or other
sums payable pursuant to the Leases, except (i) this Indenture, (ii) the
Permitted Encumbrances, (iii) easements, restrictions, liens, charges and other
encumbrances permitted by the Loan Agreement, (iv) liens being contested in good
faith and by appropriate proceedings in the manner permitted by the Loan
Agreement, and (v) liens arising out of or created by any statute, the discharge
of which cannot under the terms of such statute at the particular time be
effected by Grantor; provided, however, that any such statutory liens will
promptly be discharged as and when such discharge is possible or permissible.
Grantor shall have the right to grant, without the prior consent of Grantee, any
utility easement.
ARTICLE V
5. Events of Default. Any of the following events (each a
"Default") shall, following the passage of any grace or cure period as provided
below, constitute an Event of Default ("Event of Default"):
(a) Grantor shall fail to make any payment of principal under any
of the Notes on or before the same becomes due and payable on maturity thereof;
or Grantor shall fail to make any payment of interest under any of the Notes, or
any fees, costs or expenses due hereunder or thereunder, within 5 days after the
same becomes due and payable.
(b) Any representation or warranty made by Grantor (or any of its
officers) under or in connection with any Loan Document shall be or become
incorrect or untrue, or shall prove to have been incorrect or misleading in any
material respect when made.
(c) Grantor shall fail to perform or observe any term, covenant or
agreement (other than a covenant of payment) contained in any Loan Document on
its part to be performed or observed, and such failure shall remain uncured for
10 days after written notice thereof shall have been given by Grantee to
Grantor, or if such failure cannot by its nature be cured within such 10 day
period, Grantor shall fail to commence and diligently pursue such cure within 10
days after written notice thereof shall have been given by Grantee to Grantor
and shall fail to complete such cure within 60 days after Grantee's initial
written notice of such failure.
(d) An involuntary case or proceeding under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect shall be
commenced against Grantor, and such case or proceeding shall not be dismissed in
60 days; or a court shall enter a decree, or a court or regulatory authority
having jurisdiction over Grantor shall enter an order, appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator,
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<PAGE> 10
conservator, supervisor, rehabilitator (or similar official) of Grantor or for
any substantial part of its property, or ordering the winding-up, supervision or
liquidation of its affairs.
(e) Grantor shall commence a voluntary case or proceeding under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
or proceeding under any such law, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator, supervisor, rehabilitator (or other similar official)
of Grantor or for any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall fail generally to pay
its indebtedness generally as the same becomes due, or shall take any corporate
action in furtherance of any of the foregoing.
(f) A judgment or order for the payment of money in excess of
$2,500,000 shall be rendered against Grantor and either (A) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (B) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
(g) A Default has occurred and is continuing beyond any applicable
grace or cure period under any Debt (other than the Loan) in excess of
$2,500,000.
(h) Any material provision of the Loan Documents relating to
Grantee's ability to realize on the Collateral following an Event of Default
shall for any reason cease to be valid and binding on Grantor, or Grantor shall
so state in writing.
(i) The Security Agreement shall, as a result of Grantor's acts or
omissions, for any reason, except to the extent permitted by the terms thereof,
cease to create a valid and, upon filing of UCC-1 financing statement(s), UCC-2
Notice Filings, or UCC-3 continuation statements, as applicable, perfected first
priority security interest in any of the Collateral purported to be covered,
which can be so secured or perfected.
ARTICLE VI
6. Remedies in Case of Event of Default.
6.1. Legal Proceedings and Foreclosure. If an Event of Default
shall have occurred, Grantee may proceed by suit or suits at law or in equity or
by any other appropriate remedy to protect and enforce its rights hereunder,
whether for the specific performance of any covenant or agreement contained
herein, or for an injunction against the violation of any of the terms hereof,
or in aid of the exercise of any right, power or remedy available to it, or to
enforce the payment of the Indebtedness under the Loan Agreement, or to
foreclose the estate created by this Indenture and the security interest of this
Indenture as against all or any part of the Property and to have all or any part
of the Property sold, in any manner permitted by law, under the judgment or
decree of a court or
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courts of competent jurisdiction, or otherwise, and to pursue any other remedy
available to it. If Grantee proceeds to foreclose the estate created hereby,
Grantee shall have the statutory power of sale if permitted by applicable law.
In the event of any such suit or proceeding, Grantee shall comply with any local
laws applicable to any such suits or proceedings. Any such suit or proceeding
instituted by Grantee shall be brought in its name as Grantee and any recovery
or judgement shall be for the benefit of Grantee. All costs and expenses
(including, without limitation, reasonable attorney's fees and expenses)
incurred by Grantee in connection with any such suit or proceeding, together
with interest thereon (to the extent permitted by law) computed at the Default
Rate from the date on which such costs or expenses are incurred to the date of
payment thereof, shall constitute additional Indebtedness secured by this
Indenture and shall be paid by Grantor to Grantee, as the case may be, on
demand.
6.2. Power of Sale. Without in any way limiting the other
provisions of this Indenture, but in addition thereto and in amplification
thereof, upon the occurrence of any Event of Default, Grantee, at its option,
may sell the Property or any part of the Property at one or more public sale or
sales before the door of the courthouse of the county in which the Property or
any part of the Property is situated, to the highest bidder for cash, in order
to pay the Indebtedness, any and all expenses of sale and of all proceedings in
connection therewith, including reasonable attorneys' fees, after advertising
the time, place and terms of sale once a week for four (4) consecutive weeks
(but without regard to the number of days) in a newspaper in which Sheriff's
sales are advertised in said county. At any such public sale, Grantee may
execute and deliver to the purchaser a conveyance of the Property or any part of
the Property in fee simple, with full general warranties of title and to this
end, Grantor hereby constitutes and appoints Grantee the agent and
attorney-in-fact of Grantor to make any such sale and conveyance and thereby to
divest Grantor of all right, title and equity that Grantor may have in and to
the Property and to vest the same in the purchaser or purchasers at such sale or
sales, and all the acts or 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 Grantor. Grantee, its
agents, representatives, successors or assigns may bid and purchase at any such
sale. The aforesaid power of sale and agency hereby granted are coupled with an
interest and are irrevocable by death or otherwise, are granted as cumulative of
the other remedies provided 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
Indenture by virtue of the exercise of the powers herein granted, pursuant to
any order in any judicial proceeding or otherwise, the Property may be sold as
an entirety or in separate parcels and in such manner or order as Grantee in its
sole discretion may elect, and if Grantee so elects, Grantee may sell the
personal property covered by this Indenture at one or more separate sales in any
manner permitted by the Uniform Commercial Code of the State, and one or more
exercises of the powers herein granted shall not extinguish nor exhaust such
powers, until the entire Property is 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, Grantee may,
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at its option, exhaust the remedies granted under any of said security
instruments either concurrently or independently, and in such order as Grantee
may determine.
6.3. Acceleration of Maturity. If an Event of Default shall have
occurred, Grantee may declare the entire outstanding Indebtedness under the Loan
Agreement, and all other sums secured hereby, to be due and payable immediately,
and upon such declaration, such Indebtedness and other sums shall immediately
become and be due and payable without demand or notice.
6.4. Leases. Grantee is authorized to foreclose this Indenture
subject to the rights of any tenants of the Property, and the failure to make
any such tenants parties defendant to any such foreclosure proceedings and to
foreclose their rights will not be, nor be asserted by Grantor to be, a defense
to any proceedings instituted by Grantee to collect the sums secured hereby or
to collect any deficiency remaining unpaid after the foreclosure sale of the
Property.
6.5. Suits to Protect the Property. Grantee shall have the power
and authority to institute and maintain any suits and proceedings as Grantee may
deem advisable (a) to prevent any impairment of the Property by any acts which
may be unlawful or any violation of this Indenture, (b) to preserve or protect
its interest in the Property, and (c) to restrain the enforcement of or
compliance with any legislation or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid, if the enforcement of or
compliance with such enactment, rule or order might impair the security
hereunder or be prejudicial to Grantee's interest.
6.6. Discontinuance of Proceedings; Position of Parties Restored.
If Grantee shall have proceeded to enforce any right or remedy under this
Indenture by foreclosure, entry or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason, then and in every such instance,
Grantor and Grantee shall, except to the extent modified by such proceedings, be
restored to their former positions and rights hereunder, and all rights, powers
and remedies of Grantee shall continue as if no such proceeding had occurred or
had been taken.
6.7. Grantor to Pay the Indebtedness on Any Default in Payment;
Application of Monies by Grantee.
(a) If an Event of Default shall occur as a result of Grantor's
failure to pay any amount due under the Loan Agreement or this Indenture, then,
upon Grantee's demand, Grantor will pay to Grantee the whole amount due and
payable under the Loan Agreement and all other sums secured hereby. If Grantor
shall fail to pay the same forthwith upon such demand, Grantee shall be entitled
to sue for and to recover judgment for the whole amount so due and unpaid
together with costs and expenses, including the reasonable compensation,
expenses and disbursements of Grantee's agents, attorneys and other
representatives. Grantee shall be entitled to sue and recover judgment as
aforesaid either before, after or during the pendency of any proceedings for the
enforcement of this
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Indenture, and the right of Grantee to recover such judgment shall not be
affected by any taking of possession or foreclosure sale hereunder, or by the
exercise of any other right, power or remedy for the enforcement of the terms of
this Indenture, or the foreclosure of the estate created hereby.
(b) In case of a foreclosure sale of all or any part of the
Property and of the application of the proceeds of sale to the payment of the
sums secured hereby, Grantee shall be entitled to enforce payment of and to
receive all amounts then remaining due and unpaid and to recover judgment for
any portion thereof remaining unpaid, with interest.
(c) Grantor hereby agrees, to the extent permitted by law, that no
recovery of any such judgment by Grantee and no attachment or levy of any
execution upon any of the Property or any other property shall in any way affect
the estate created hereby upon the Property or any part thereof or any lien,
rights, powers or remedies of Grantee hereunder, but such lien, rights, powers
and remedies of Grantee hereunder shall continue unimpaired as before.
ARTICLE VII
7.1. Purchase of the Property by Grantee. Upon any foreclosure
sale, Grantee may bid for and purchase the Property, and, upon compliance with
the terms of sale, may hold, retain and possess and dispose of such Property in
its own absolute right without further accountability.
7.2. Application of Indebtedness Toward Purchase Price. If Grantee
purchases the Property pursuant to foreclosure, power of sale or otherwise, then
Grantee may, in lieu of cash, apply all or any portion of the sums due to
Grantee under the Loan Agreement and this Indenture or any other instrument
securing the Indebtedness, to the unpaid balance of the purchase price remaining
after payment of any portion of the purchase price required to be paid in cash,
and the costs and expenses of the sale, compensation and other charges relating
to the sale.
ARTICLE VIII
8. Waiver of Appraisement, Valuation, Etc. Grantor hereby waives,
to the full extent it may lawfully do so, the benefit of all appraisement,
valuation, stay, moratorium, exemption from execution, extension and redemption
laws now or hereafter in force and all rights of marshaling in the event of the
sale of the Property or any part thereof or any interest therein.
ARTICLE IX
9. Appointment of Receiver. If an Event of Default shall have
occurred, Grantee shall, as a matter of right, be entitled, ex parte and without
notice, to the appointment of a receiver or receivers of the Property or any
part thereof in accordance with Georgia
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Official Code ss. 9-8-3 and without regard to the value of the Property as
security for the Indebtedness, or the solvency or insolvency of any Person
liable for the payment of the Indebtedness and without necessity or requirement
for posting bond, whether such receivership be incidental to a proposed sale
thereof or otherwise, and Grantor hereby consents to the appointment of such a
receiver or receivers and will not oppose any such appointment. Any receiver
which may be appointed pursuant to this paragraph, shall have the right, but not
the obligation, to take possession, manage and operate the Property, together
with such other powers conferred upon it by the appointing court. The expenses,
including receiver's fees, attorney's fees, costs and agent's compensation,
incurred pursuant to the powers herein contained shall be secured by this
Indenture.
ARTICLE X
10. Possession, Management and Income. If an Event of Default
shall have occurred under this Indenture, Grantee, without further notice, may
enter upon and take possession of the Property or any part thereof, in any
manner permitted by law, by reasonable force, summary proceedings, ejectment or
otherwise and may remove Grantor and all other Persons and any and all property
therefrom, and Grantee may hold, operate and manage the same, make all necessary
or proper repairs, renewals, and replacements, and useful alterations,
additions, betterments and improvements thereto and thereon as may seem
advisable to either of them, and insure and reinsure the Property as may seem
advisable and to either of them, and may receive all earnings, income, rents,
issues and proceeds accruing with respect thereto. Any amounts so received by
Grantee shall be applied (a) to pay (i) the expenses of operating the Property
and of all maintenance, repairs, renewals, replacements, alterations, additions,
betterments, improvements, taxes, assessments, insurance premiums, reasonable
compensation for the services of all attorneys, advisors, brokers, receivers,
agents and other employees engaged or employed by Grantee and all other costs
and expenses of entering a bond and taking possession of and holding the
Property, and (ii) any lien prior to the estate created hereby which Grantee may
consider it necessary or desirable to discharge and then (b) in the manner
provided in Article XI of this Indenture. If an Event of Default shall have
occurred under the Loan Agreement or if the Loan Agreement shall be terminated,
all sums so received by Grantee shall be applied in the manner specified in
Article XI of this Indenture.
ARTICLE XI
11. Application of Proceeds. The proceeds of (a) the operation and
management of the Property pursuant to Article X of this Indenture, and (b) any
sale of the Property or any interest therein, shall, unless otherwise provided
in the Loan Agreement, be applied as follows:
First: to the costs and expenses of the sale, reasonable attorneys'
fees and expenses, court costs, and any other expenses or advances made or
incurred in the protection of the rights of Grantee or in the pursuance of any
remedies hereunder;
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Second: to any lien prior to the estate created hereby which Grantee
may consider it necessary or desirable to discharge;
Third: to any Indebtedness secured by this Indenture and at the time
due and payable (whether by acceleration or otherwise);
Fourth: to Grantee for payment of the Notes outstanding; and
Fifth: the balance, if any, to Grantor.
ARTICLE XII
12. Remedies, Etc., Cumulative. Each legal, equitable or
contractual right, power or remedy of Grantee now or hereafter provided herein
or by statute or otherwise shall be cumulative and concurrent and shall be in
addition to every other right, power and remedy, and the exercise or beginning
of the exercise by Grantee of any one or more of such rights, powers and
remedies shall not preclude the simultaneous or later exercise of any or all
such other rights, powers and remedies.
ARTICLE XIII
13. No Waiver, Etc. No failure by Grantee to insist upon the
strict performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach hereof shall constitute a waiver of any such term or of
any such breach. No acceptance of the payment of any sums due under this
Indenture or under the Loan Agreement during the continuance of any Default
shall constitute a waiver thereof. No waiver of any breach shall affect or alter
this Indenture which shall continue in full force and effect with respect to any
other then existing or subsequent breach.
ARTICLE XIV
14. Right of Grantee to Perform Covenants, Etc. If Grantor shall
fail to make any payment or perform any act required to be made or performed
hereunder and such failure shall not be cured within the applicable grace
period, if any, Grantee, without notice to or demand upon Grantor and without
waiving or releasing any obligation or Default, may (but shall be under no
obligation to) at any time thereafter make such payment or perform such act for
the account and at the expense of Grantor and may enter upon the Property or any
part thereof for such purpose and take all such action thereon as, in the
opinion of Grantee, may be necessary or appropriate therefor. All sums so paid
by Grantee and all costs and expenses (including, without limitation, attorneys'
fees and expenses) so incurred shall constitute additional Indebtedness secured
by this Indenture and shall be paid by Grantor to Grantee on demand.
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ARTICLE XV
15. Certificate as to No Default, Etc.; Information. At any time
and from time to time, Grantor will deliver to Grantee, promptly upon request, a
certificate signed by a duly authorized officer of Grantor stating that, to the
best of the signer's knowledge after making due inquiry, there is no Default
hereunder, or if any such Default exists to his knowledge, specifying the nature
and period of existence thereof and what action Grantor is taking or proposes to
take with respect thereto. Grantor will also furnish promptly to Grantee, such
information with respect to the Property and the Leases as may from time to time
be requested.
ARTICLE XVI
16. Additional Instruments. Grantor, at its expense, will execute,
acknowledge, secure and deliver all such instruments and take all such action as
Grantee from time to time may reasonably request for the better assuring of the
Property, rights and obligations now or hereafter subjected to the security of
this Indenture or intended so to be.
ARTICLE XVII
17. Satisfaction of the Indenture. This Indenture and the estate
created hereby shall terminate after the payment in full of (a) all the
Indebtedness and (b) all other sums secured hereby. Upon such termination, and
upon surrender of this Indenture for cancellation, Grantee shall release,
without warranty, the Property then subject to the estate created hereby to the
Persons entitled thereto. The recitals in any satisfaction executed under this
Indenture of any matters of fact shall be conclusive proof of the truthfulness
thereof. The grantee in such release may be described as "the person or persons
legally entitled thereto". Grantee, at Grantor's expense, shall execute and
deliver such instruments of release, satisfaction and termination in proper form
for recording or filing, as may be appropriate to evidence the release of (a)
the Property from the estate created hereby, and (b) any other security held by
Grantee and such satisfaction and termination, and such instruments, when duly
executed, recorded and filed, shall conclusively evidence the release,
satisfaction and termination of this Indenture.
ARTICLE XVIII
18. Applicable Law; Severability.
(a) This Indenture shall be governed by and construed in
accordance with the laws of the State.
(b) All rights, powers and remedies provided herein may be
exercised only to the extent that the exercise thereof does not violate any
applicable law, and are intended to be limited to the extent necessary so that
they will not render this Indenture invalid, unenforceable or not entitled to be
recorded, registered or filed under any applicable law. If any term or provision
of this Indenture shall be held to be invalid, illegal or unenforceable, the
validity of the other terms and provisions hereof shall in no way be affected
thereby.
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ARTICLE XIX
19. Miscellaneous. This Indenture (a) may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought, and (b) shall be binding upon Grantor, its successors and assigns, and
all Persons claiming under or through Grantor or any such successor or assign,
and shall inure to the benefit of and be enforceable by Grantee and its
successors and assigns. The headings in this Indenture are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
agreements between Grantor and Grantee, whether now existing or hereafter
arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of demand or acceleration of the maturity of any
payments hereunder or under the Loan Agreement or otherwise, shall the interest
contracted for, charged, received, paid or agreed to be paid to Grantee exceed
the maximum amount permissible under applicable law. If, in any circumstance
whatsoever, interest would otherwise be payable to Grantee in excess of the
maximum lawful amount, and if in any circumstance Grantee shall ever receive
anything of value deemed interest by applicable law in excess of the maximum
lawful amount, an amount equal to any excessive interest shall be applied to the
reduction of advances under the Loan Agreement and not to the payment of
interest, or if such excessive interest exceeds the unpaid advances under the
Loan Agreement, such excess shall be refunded to Grantor. All interest paid or
agreed to be paid to Grantee shall, to the extent permitted by applicable law,
be amortized, prorated, allocated, and spread throughout the full period until
payment in full of the principal so that the interest hereon for such full
period shall not exceed the maximum amount permitted by applicable law. This
paragraph shall control all agreements between Grantor and Grantee. This
Indenture may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one and the same
instrument.
ARTICLE XX
20. Change in Method of Taxation. In the event of the passage,
after the date of this Indenture, of any law changing in any way the laws now in
force for the taxation of mortgages or debts secured thereby, for state or local
purposes, or the operation of any such taxes so as to adversely affect the
interest of Grantee in the Property, this Indenture or the Loan Agreement,
Grantor shall, upon demand, bear and pay the full amount (or any partial amount)
requested by Grantee, of taxes resulting from such changes hereunder without
offset or credit against any other sums due under the Loan Agreement or on the
Notes.
ARTICLE XXI
21. No Petition. Grantee hereby covenants and agrees that it will
not institute against, or join any Person in instituting against Grantor, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law at any time other than on a date which is
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at least one (1) year and one (1) day after the payment in full of the Notes;
provided, however, that nothing in this Article shall constitute a waiver of any
right to indemnification, reimbursement or other payment from Grantor pursuant
to the Loan Agreement.
ARTICLE XXII
22. The Indenture Secures Future Advances. This Indenture is given
to secure not only the amount initially secured by this Indenture, but also such
future advances, whether such advances are obligatory or are to be made at the
option of Grantee, or otherwise, to the same extent as if such future advances
were made on the date of the execution of this Indenture. The total amount of
Indebtedness that may be so secured may decrease or increase from time to time,
but the total unpaid balance so secured at one time shall not exceed two (2)
times the face amount of the amount initially secured by this Indenture, plus
interest thereon.
ARTICLE XXIII
23. Assignment of Leases and Rents. Grantor hereby grants,
transfers and assigns to Grantee Grantor's entire right, title and interest in
and to the Leases and Rents. This assignment of Leases and Rents by Grantor to
Grantee is intended to operate as an absolute and immediate assignment of such
Leases and Rents.
23.1. Grantor's Representations and Warranties.
(a) Grantor has good and lawful right, title, and interest in and
to the Leases, is entitled to receive the Rents from the Leases and from the
Property, has full power and authority to assign the Leases as provided herein
and to grant to and confer upon Grantee the powers, interests and authority set
forth herein, and has not assigned the Leases or Rents to any other party;
(b) Grantor has neither done any act nor omitted to do any act
which might prevent Grantee from, or limit Grantee in, acting under any of the
provisions of this assignment of Leases and Rents;
(c) All Leases provide for Rent to be paid monthly, in advance,
and Grantor has not accepted and will not accept payment of Rent for more than
one (1) month in advance; provided, however, Grantor may accept payment of Rent
two (2) months in advance if such Rent accepted two (2) months in advance does
not exceed five percent (5%) of the Rent collected during the applicable month;
and there are no agreements, understandings, or undertakings by Grantor
providing for free or reduced Rent in the past or in the future except as
provided in the Leases;
(d) Except as disclosed to Grantee in writing, Grantor is not now
in default, the nature of which could have a material adverse impact on the
financial condition of Grantor or the value of the Property, under any provision
of any of the Leases, and no tenant under
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any of the Leases has claimed or asserted any defense, offset, counter-claim, or
abatement of rent, and that the Leases remain in full force and effect. Grantor
further represents and warrants that it has no knowledge of any default by any
tenant under any of the Leases that could materially adversely affect the value
of the Property;
(e) This assignment of Leases and Rents, the Leases, the
performance of each and every covenant of Grantor under the Leases, and the
enforcement by Grantee of its rights hereunder does not conflict with, or will
not conflict with, and does not constitute or will not constitute a breach or
default, under any agreement, indenture or other instrument to which Grantor is
a party, or so far as is known to Grantor, any law, ordinance, administrative
regulation or court decree which is applicable to Grantor;
(f) No action has been brought or, so far as is known to Grantor,
is threatened, which would interfere in any way with the right of Grantor to
execute and deliver this assignment of Leases and Rents, and to perform all of
Grantor's obligations contained in this assignment of Leases and Rents and in
the Leases; and
(g) To Grantor's knowledge, the Leases are valid, enforceable and
in full force and effect.
23.2. Grantor's Covenants. Grantor hereby covenants and agrees to
and with Grantee as follows:
(a) Grantor will notify Grantee in writing (but without any right
of approval or denial on the part of Grantee) of any termination, substitution
or material modification of any Leases involving 10,000 or more Koger Net Square
Feet (as defined in the Loan Agreement);
(b) Grantor hereby acknowledges that any and all Rents collected
or received by Grantor after the occurrence of an Event of Default will be the
property of Grantee, which if received and collected by Grantor, will be
considered received and collected on Grantee's behalf and as Grantee's agent,
and will be held by Grantor in trust for the benefit of Grantee, and Grantor
will deliver all such sums to Grantee immediately upon Grantor's request
therefor;
(c) In accordance with sound business judgment, Grantor will use
its reasonable best efforts, at its cost and expense, to observe, perform and
discharge, or cause to be observed, performed and discharged, all of the
obligations and undertakings of Grantor or its agents under the Leases, and will
use its best efforts, in accordance with sound business judgment, to enforce or
secure, or cause to be enforced or secured, the performance of each and every
obligation and undertaking of the respective tenants under the Leases, and will
appear in and defend, at its cost and expense, any action or proceeding arising
under or in any manner connected with the Leases or the obligations and
undertakings of any tenant thereunder. Grantor will not do or permit to be done
anything to impair the security thereof, including without limitation the
execution of any
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other assignment of Grantor's interest in the Leases or the Rents, without
Grantee's prior written consent;
(d) Grantor authorizes and directs each and every present and
future tenant under the Leases to pay all Rent to Grantee upon receipt of
written demand from Grantee to so pay the same, and upon paying the same, such
tenants will be relieved from all liability to Grantor for such Rent in all
respects. To the extent not so provided by applicable law, each Lease will
provide that, in the event of enforcement by Grantee of the remedies provided
for by law or by this assignment of Leases and Rents, the tenant thereunder
will, upon request of any person succeeding to the interest of Grantor as a
result of such enforcement, automatically become the tenant of said successor in
interest, without change in the terms or other provisions of such Lease. Any
such successor in interest will not be bound by any payment of rent or
additional rent made more than one (1) month in advance;
(e) This assignment of Leases and Rents will not obligate Grantee
to take any action or to incur expenses or perform or discharge any obligation,
duty or liability of Grantor under any Lease, or for the control, care,
management, or repair of the Property; nor will it operate to make Grantee
responsible or liable for any waste committed on the Property by the tenants or
any other parties or for any dangerous or defective condition of the Property,
or for any act or omission relating to the management, upkeep, repair, or
control of the Property that results in loss or injury or death to any person.
Grantee will not be liable for any loss sustained by Grantor resulting from
Grantee's failure to lease the Property after default. Grantor will and does
hereby indemnify and agree to hold harmless Grantee from and against any and all
liability, loss, cost, damage or expense which may be incurred under the Leases
or by reason of this assignment of Leases and Rents and from any and all claims
and demands whatsoever which may be asserted against Grantee by reason of any
alleged obligations or undertakings on its part to perform or discharge any of
the terms, covenants, or agreements contained in the Leases except to the extent
the same is caused by the negligence of Grantee. Should Grantee incur any such
liability under the Leases or by reason of this assignment of Leases and Rents
or in defense of any such claims or demands, the amount thereof, including
costs, expenses, and reasonable attorneys' and paralegals' fees and costs, will
be secured hereby and Grantor will reimburse Grantee therefor immediately upon
demand and upon the failure of Grantor so to do, Grantee may, at its option,
declare all sums secured hereby immediately due and payable, or may charge the
costs thereof to Grantor as an advance under the Notes; and
(f) This assignment of Leases and Rents is made without prejudice
to any of the rights and remedies possessed by Grantee under the Loan Agreement,
and the right of Grantee to exercise its remedies under this assignment of
Leases and Rents may be exercised by Grantee either prior to, simultaneously
with, or subsequent to any action taken by it under the Loan Agreement. Each and
every right, remedy and power granted to Grantee by this assignment of Leases
and Rents will be cumulative and in addition to any other right, remedy and
power given by the Loan Agreement now or hereafter existing in equity, at law or
by virtue of statute or otherwise. Nothing contained in this assignment
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of Leases and Rents, and no act done or omitted by Grantee pursuant to the
powers and rights granted it hereunder, nor the failure of Grantee to avail
itself of any of the rights and remedies under this assignment of Leases and
Rents, will be construed or deemed to be a waiver of any of Grantee's rights and
remedies under this assignment of Leases and Rents, nor will such exercise or
omission to exercise of the powers and rights granted Grantee hereunder be
deemed to constitute a waiver of its rights and remedies under the Loan
Agreement.
23.3. Grantee's Covenants.
(a) Although this assignment of Leases and Rents constitutes a
present and absolute assignment of the Leases and the Rents, as long as there is
no Event of Default on the part of Grantor, Grantee will not require that such
Rents be paid directly to Grantee, and Grantor will have a license to collect
and use the Rents for subsequent application as provided above;
(b) Upon the payment and performance in full of Grantor's
obligations under the Loan Agreement, as evidenced by the recording or filing of
an instrument of satisfaction or termination of this Indenture without the
recording of another security instrument in favor of Grantee affecting the
Property, this assignment of Leases and Rents will be deemed terminated and
released of record by Grantee and thereupon will be null and void and of no
further force or effect.
23.4. Remedies. If any Event of Default occurs, Grantee may, at its
option, with or without notice or demand of any kind, exercise any and all of
the following remedies:
(a) Either in person, by court appointed receiver or by agent,
with or without bringing any action or proceeding, demand and thereupon take
possession of the Property, to have, hold, manage, lease and operate the same on
such terms and for such period of time as Grantee may deem proper, and either
with or without taking possession of the Property in its own name, demand and
receive the Rents in the possession of Grantor at the time of Grantee's written
demand or collected thereafter, including those past due and unpaid, with full
power to make from time to time all alterations, renovations, repairs, or
replacements thereto or thereof as may seem proper to Grantee, and to apply such
Rents to the payment of: (i) all reasonable expenses of managing the Property,
including, without limitation, the salaries, fees and wages of the managing
agent and such other employees as Grantee may deem necessary or desirable, all
taxes, charges, claims, assessments, liens, premiums for all insurance which
Grantee may deem necessary or desirable, costs of renovations, repairs, or
replacements, and all expenses incident to taking and retaining possession of
the Property and protecting and preserving the same; or (ii) the principal sum
and interest thereon of the Notes, together with all costs and attorneys' and
paralegals' fees and costs; all in such order or priority as Grantee in its sole
discretion may determine, any custom or use to the contrary notwithstanding; and
22
<PAGE> 22
(b) In the name of Grantor or of Grantee, institute any legal or
equitable action which Grantee in its sole discretion deems desirable to collect
and receive any or all of the Rents.
Nothing herein contained will be construed to cause Grantee to be a
mortgagee in possession nor will Grantee be liable for laches for failure to
collect the Rents, and it is understood that Grantee is to account only for such
sums as are actually received by Grantee.
23.5. Further Assurances. At Grantee's request, Grantor will assign
and transfer to Grantee any and all subsequent Leases upon all or any part of
the Property and to execute and deliver at the request of Grantee all such
further assurances and assignments in the Leases and the Rents as Grantee will
require from time to time in its sole discretion.
23.6. Subordination, Nondisturbance and Attornment. The Leases are
and at all times shall be subject and subordinate in all respects to this
Indenture, and to all renewals, modifications, amendments, consolidations,
replacements, refinancings and extensions of this Indenture, to the full extent
of all principal, interest and all other amounts secured hereby. Provided that a
tenant is not in default under its Lease, Grantee shall not disturb the
occupancy of such tenant under its Lease during the term of such Lease,
notwithstanding foreclosure of this Indenture, acceptance of a deed in lieu of
foreclosure or exercise of any other remedy provided herein, or pursuant to the
laws of the State of Georgia. If requested by a tenant under any of the Leases
or upon Grantee's request, Grantor shall enter into a subordination,
nondisturbance and attornment agreement (reasonably acceptable in form and
substance to Grantee) with such tenant whereby Grantee will agree to not disturb
the tenant in its possession of the Property provided such tenant is not in
default under its Lease and the tenant will agree to attorn to Grantee if
Grantee takes possession of the Property.
ARTICLE XXIV
24. Security Agreement.
(a) This Indenture is hereby made and declared to be a security
agreement, encumbering each and every item of personal property included herein,
in compliance with the provisions of the Uniform Commercial Code as enacted in
the State. A financing statement or statements reciting this Indenture to be a
security agreement, affecting all of said personal property aforementioned,
shall be executed by Grantor and Grantee and appropriately filed. The remedies
for any violation of the covenants, terms and conditions of the security
agreement herein contained shall be (i) as prescribed herein, or (ii) as
prescribed by general law, or (iii) as prescribed by the specific statutory
consequences now or hereafter enacted and specified in said Uniform Commercial
Code, all at Grantee's sole election. Grantor and Grantee agree that the filing
of such financing statement(s) in the records normally having to do with
personal property shall never be construed as in any way derogating from or
impairing this declaration and hereby stated intention of Grantor
23
<PAGE> 23
and Grantee that everything used in connection with the production of income
from the Property and/or adapted for use therein and/or which is described or
reflected in this Indenture, is, and at all times and for all purposes and in
all proceedings both legal or equitable shall be, regarded as part of the
Property irrespective of whether (i) any such item is physically attached to the
Improvements, (ii) serial numbers are used for the better identification of
certain items capable of being thus identified in a recital contained herein, or
(iii) any such item is referred to or reflected in any such financing
statement(s) so filed at any time. Similarly, the mention in any such financing
statement(s) of the rights in and to (aa) the proceeds of any fire and/or hazard
insurance policy, or (bb) any award in eminent domain proceeds for a taking or
for loss of value, or (cc) Grantor's interest as lessor in any present or future
lease or rights to income growing out of the use and/or occupancy of the
Property, whether pursuant to lease or otherwise shall never be construed as in
anyway altering any of the rights of Grantee as determined by this instrument
impugning the priority of Grantee's estate granted hereby or by any other
recorded document, but such mention in such financing statement(s) is declared
to be for the protection of Grantee in the event any court shall at any time
hold with respect to the foregoing (aa), (bb) or (cc), that notice of Grantee's
priority of interest to be effective against a particular class of persons, must
be filed in the Uniform Commercial Code records.
(b) Grantor warrants that (i) Grantor's (that is "Debtor's") name,
identity or corporate structure and residence or principal place of business are
as set forth in Exhibit C hereto; (ii) Grantor (that is, "Debtor") has been
using or operating under said name, identity or corporate structure without
change for the time period set forth in Exhibit C hereto; and (iii) the location
of the collateral is upon the Property. Grantor covenants and agrees that
Grantor will furnish Grantee with notice of any change in the matters addressed
by clauses (i) or (iii) of this subparagraph (b) within thirty (30) days of the
effective date of any such change and Grantor will promptly execute any
financing statements or other instruments deemed necessary by Grantee to prevent
any filed financing statement from becoming misleading or losing its perfected
status.
ARTICLE XXV
25. Waiver of Homestead. Grantor hereby waives and renounces all
homestead and exemption rights provided for by the Constitution and laws of the
United States and of any state, in and to the Property as against the collection
of the secured obligations, or any part hereof.
ARTICLE XXVI
26. WAIVER OF GRANTOR'S RIGHTS. BY EXECUTION OF THIS INDENTURE,
GRANTOR EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT TO ACCELERATE THE INDEBTEDNESS
SECURED HEREBY AND THE POWER OF ATTORNEY GIVEN HEREIN TO GRANTEE TO SELL THE
PROPERTY BY NONJUDICIAL FORECLOSURE UPON DEFAULT BY GRANTOR WITHOUT ANY JUDICIAL
24
<PAGE> 24
HEARING AND WITHOUT ANY NOTICE OTHER THAN SUCH NOTICE (IF ANY) AS IS
SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE PROVISIONS OF THIS INDENTURE; (B)
WAIVES ANY AND ALL RIGHTS WHICH GRANTOR MAY HAVE UNDER THE CONSTITUTION OF THE
UNITED STATES (INCLUDING THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF, THE
VARIOUS PROVISIONS OF THE CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF
ANY OTHER APPLICABLE LAW), (1) TO NOTICE AND JUDICIAL HEARING PRIOR TO THE
EXERCISE BY GRANTEE OF ANY RIGHT OR REMEDY HEREIN PROVIDED TO GRANTEE EXCEPT
SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO BE PROVIDED IN THIS
INDENTURE; AND (2) CONCERNING THE APPLICATION, RIGHTS OR BENEFITS OF ANY
MORATORIUM, REINSTATEMENT, MARSHALING, FORBEARANCE, APPRAISEMENT, VALUATION,
STAY, EXTENSION, HOMESTEAD, EXEMPTION OR REDEMPTION LAWS; (C) ACKNOWLEDGES THAT
GRANTOR HAS READ THIS INDENTURE AND ANY AND ALL QUESTIONS REGARDING THE LEGAL
EFFECT OF THIS INDENTURE AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO GRANTOR
AND GRANTOR HAS CONSULTED WITH COUNSEL OF GRANTOR'S CHOICE PRIOR TO EXECUTING
THIS INDENTURE; AND (D) ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF
GRANTOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY GRANTOR AS PART
OF A BARGAIN FOR THE LOAN TRANSACTION AND THAT THIS INDENTURE IS VALID AND
ENFORCEABLE BY GRANTEE AGAINST GRANTOR IN ACCORDANCE WITH ALL THE TERMS AND
CONDITIONS HEREOF.
ARTICLE XXVII
27. Approval of Legal Description. Grantor has read and does
hereby approve the legal description of the Land which Is the subject hereof, as
set forth in Exhibit A attached hereto, and hereby indemnifies Grantee and its
attorneys with respect to any liability which might arise as a consequence of
any error or omission therein.
ARTICLE XXVIII
28. Loan Agreement. The terms, provisions, conditions,
representations and warranties and covenant of the Loan Agreement are
incorporated herein by reference. In the event of a conflict between this
Indenture and the Loan Agreement, the Loan Agreement shall control.
25
<PAGE> 25
ARTICLE XXIX
29. WAIVER OF JURY TRIAL. GRANTOR AND GRANTEE, BY ITS ACCEPTANCE
HEREOF, EACH ACKNOWLEDGE AND AGREE THAT NEITHER GRANTOR NOR GRANTEE, NOR ANY
ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF ANY OF THE SAME, WILL SEEK
A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION
PROCEDURE BASED UPON OR ARISING OUT OF THIS DEED TO SECURE DEBT, THE NOTES, THE
LOAN AGREEMENT OR THE LOAN DOCUMENTS, ANY COLLATERAL, OR THE DEALINGS OR THE
RELATIONSHIP BETWEEN GRANTOR AND GRANTEE RELATED THERETO. NEITHER OF THE PARTIES
WILL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN WHICH A JURY
TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY
NEGOTIATED BY GRANTOR AND GRANTEE, ARE MADE KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT FOR GRANTEE TO MAKE THE LOAN
TO GRANTOR, AND WILL BE SUBJECT TO NO EXCEPTIONS.
IN WITNESS WHEREOF, Grantor has caused this Indenture to be executed,
sealed, and attested by its proper officers thereunto duly authorized, as of the
day and year first above written.
Signed, sealed and delivered in the KOGER EQUITY, INC., a Florida
presence of: corporation
/s/ Janice R. Long By: /s/ G. Danny Edwards
- ------------------------------------- ----------------------------
Unofficial Witness Name: G. Danny Edwards
--------------------------
Title: Treasurer
-------------------------
/s/ Dee Price
- -------------------------------------
Notary Public Attest: /s/ W. Lawrence Jenkins
------------------------
Name: W. Lawrence Jenkins
--------------------------
Title: Corporate Secretary
-------------------------
My Commission Expires: Feb. 1, 1999 [CORPORATE SEAL]
Notary Public, Camden County, Georgia
- -------------------------------------
[NOTARY SEAL]
26
<PAGE> 26
EXHIBIT A
The Land
<PAGE> 27
EXHIBIT B
Permitted Encumbrances
<PAGE> 28
EXHIBIT C
DEBTOR
NAME: Koger Equity, Inc.
CORPORATE
STRUCTURE: a Florida corporation
PRINCIPAL PLACE
OF BUSINESS: 3986 Boulevard Center Drive #101
Jacksonville, Florida 32207
TIME PERIOD
USING NAME
WITHOUT CHANGE June 21, 1988, to present
SECURED PARTY
NAME: First Union National Bank, as Agent for the
Lenders
PRINCIPAL PLACE
OF BUSINESS: 301 South College Street
Charlotte, North Carolina 28288
<PAGE> 1
THIS INSTRUMENT PREPARED BY
AND RECORD AND RETURN TO: EXHIBIT 10(k)(4)(a)(ii)
Alan C. Sheppard, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, FL 32202-3650
- --------------------------------------------------------------------------------
AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK,
AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
THIS AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS (this "Amendment") is
made and executed as of this 30th day of December, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Assignor"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Assignee") for the
Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement of even date herewith (the "Loan Agreement")
which terms Assignor and Assignee, whenever hereinafter used will be construed
to refer to and include the heirs, legal representatives, executors,
administrators, successors and assigns of said parties. For purposes of notices
permitted or required to be given hereunder, Assignee's mailing address is 301
South College Street, Charlotte, North Carolina 28288 Attention:First Union
Capital Markets Group.
RECITALS:
A. Assignor is the grantor under that certain Amended and
Restated Deed to Secure Debt, Assignment of Leases and Rents, and Security
Agreement given by Assignor to the grantees defined therein, as grantee, dated
December 29, 1997, and recorded in Official Records Book 9767, Page 002, of the
public records of DeKalb County, Georgia (the "Deed to Secure Debt"), which Deed
to Secure Debt secured that certain (i) Substitution Revolving Promissory Note
dated December 29, 1997 made by Assignor payable to the order of First Union
National Bank in the principal amount of $35,000,000; (ii) Substitution
Revolving Promissory Note dated December 29, 1997 made by Assignor payable to
the order of Morgan Guaranty Trust Company of New York in the principal amount
of $15,000,000; (iii) Revolving Promissory Note dated December 29, 1997 made by
Assignor payable to the order of AmSouth Bank in the principal amount of
$25,000,000, and (iv) Revolving Promissory Note dated December 29, 1997 made by
Assignor payable to the order of Guaranty Federal Bank, F.S.B. in the principal
amount of $25,000,000 (collectively, the "Prior Notes"), encumbering certain
real property interests located in DeKalb County, Georgia as more particularly
described on attached Exhibit A (the "Premises").
B. To further secure the payment and performance of the Prior
Notes, Assignor agreed to execute and deliver to Assignee that certain
Assignment of Leases and Rents dated as of December 29, 1997, which was recorded
in Official Records Book 9767, Page 045, of the public records of DeKalb County,
Georgia (the "Assignment"), which Assignment was assigned to Assignee pursuant
to that certain Assignment of Deed to
1
<PAGE> 3
Secure Debt and Related Loan Documents of even date herewith to be recorded in
the public records of DeKalb County, Georgia.
C. The Deed to Secure Debt has been modified and amended pursuant
to that certain Second Amended and Restated Deed to Secure Debt, Assignment of
Leases and Rents and Security Agreement of even date herewith, to be recorded in
the Public Records of DeKalb County, Georgia, to increase the Indebtedness
secured thereby to $150,000,000 evidenced by those certain: (i) Substitution
Revolving Promissory Note dated as of even date herewith made by Grantor payable
to the order of FUNB in the original principal amount of $45,000,000, (ii) the
Substitution Revolving Promissory Note dated as of even date herewith made by
Grantor payable to the order of AmSouth in the original principal amount of
$35,000,000, (iii) the Substitution Revolving Promissory Note dated as of even
date herewith made by Grantor payable to the order of GFB in the original
principal amount of $35,000,000, (iv) the Revolving Promissory Note dated as of
even date herewith made by Grantor payable to the order of Citizens in the
original principal amount of $20,000,000, and (v) the Revolving Promissory Note
dated as of even date herewith made by Grantor payable to the order of Compass
in the original principal amount of $15,000,000 (collectively, the "Notes").
D. To further secure the payment, discharge and performance of
the Notes, and as a condition to Assignee's extension of credit to Assignor
pursuant to the Notes, Assignor has agreed to execute this Amendment for the
purposes set forth herein.
E. Assignor and Assignee desire to amend the Assignment to set
forth that the loan evidenced by the Prior Notes has been modified, amended, and
extended as evidenced by the Notes defined above.
NOW, THEREFORE, to further secure the payment, discharge and
performance of the indebtedness of Assignor to Assignee evidenced by the Notes
and in consideration of Assignee's acceptance of the Notes and in further
consideration of the sum of Ten Dollars ($10.00) paid by Assignee to Assignor,
receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee
hereby agree as follows:
1. The recitals hereinabove are true and correct and are
incorporated herein by reference.
2. The Assignment is hereby amended to secure the payment,
discharge, and performance of the Notes, and all references in the Assignment to
the "Notes" are hereinafter deemed to refer to the "Notes" of even date herewith
as defined herein.
3. All references in the Assignment to the "Loan Agreement" shall
be deemed to refer to that certain Second Amended and Restated Revolving Credit
Loan Agreement of even date herewith.
2
<PAGE> 4
4. The term "Assignee" as defined in the Assignment, is hereby
deemed to refer to First Union National Bank, as Agent for the Lenders, which
Lenders are defined in the Loan Agreement.
5. Except as herein expressly amended, the Assignment is hereby
ratified and confirmed and shall otherwise remain unchanged and in full force
and effect.
6. All initial capitalized defined terms not defined herein shall
have the meanings assigned to them in the Assignment.
7. This Amendment may be executed in separate counterpart
signature pages, and all such counterparts taken together shall constitute but
one and the same instrument.
8. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ASSIGNOR, THE ASSIGNEE, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THIS AMENDMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT
FOR THE LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE SUBJECT TO NO
EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE> 5
IN WITNESS WHEREOF, Assignor and Assignee have executed this Amendment
under seal the day and year first above written.
Signed, sealed and delivered in ASSIGNOR:
the presence of:
KOGER EQUITY, INC.,
a Florida corporation
/s/ Alan C. Sheppard, Jr. By: /s/ G. Danny Edwards
- ------------------------------------------ -----------------------------
Unofficial Witness: Alan C. Sheppard, Jr. Name: G. Danny Edwards
--------------------- ---------------------------
Title: Treasurer
--------------------------
Attest: /s/ W. Lawrence Jenkins
--------------------------
Name: W. Lawrence Jenkins
---------------------------
/s/ Dee Price Title:
- ------------------------------------------ ------------ Secretary
Notary Public
[AFFIX CORPORATE SEAL]
My Commission Expires: Feb. 1, 1999
Notary Public, Camden County, Georgia
- ------------------------------------------
[Notary Seal]
ASSIGNEE
FIRST UNION NATIONAL BANK,
a national association
/s/ Alan C. Sheppard, Jr. By: /s/ Andrew J. Hogshead
- ------------------------------------------ -------------------------
Unofficial Witness: Alan C. Sheppard, Jr. Name: Andrew J. Hogshead
--------------------- -----------------------
Title: Vice President
----------------------
Attest: /s/ Lynn E. Vermilva
----------------------
Name: Lynn E. Vermilva
-----------------------
/s/ Nancy Hoffmann Title: Vice President
- ------------------------------------------ ----------------------
Notary Public
[AFFIX CORPORATE SEAL]
My Commission Expires: September 3, 2000
Bonded Thru Notary Public Underwriters
- ------------------------------------------
[Notary Seal]
4
<PAGE> 6
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
<PAGE> 1
EXHIBIT 10 (k)(4)(a)(iii)
AMENDMENT TO ENVIRONMENTAL INDEMNIFICATION AGREEMENT
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
- --------------------------------------------------------------------------------
AMENDMENT TO ENVIRONMENTAL INDEMNIFICATION AGREEMENT
- --------------------------------------------------------------------------------
THIS AMENDMENT TO ENVIRONMENTAL INDEMNIFICATION AGREEMENT (this
"Amendment") is made and executed this 30th day of December, 1998, by
KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256, Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Agent"), for the
Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement dated of even date herewith, as amended from
time to time, between Borrower and Agent (the "Loan Agreement").
RECITALS
1. Borrower and Agent, Morgan Guaranty Trust Company of New York, a New
York banking corporation, AmSouth Bank, a state banking corporation, and
Guaranty Federal Bank F.S.B., a federal savings bank (collectively, the
"Original Lenders") entered into that certain Amended and Restated Revolving
Credit Loan Agreement dated as of December 29, 1997 (the "Prior Loan Agreement")
pursuant to which the Original Lenders agreed to extend certain credit to
Borrower from time to time up to a maximum principal amount of $100,000,000 (the
"Loan").
2. As partial security for the Loan, Borrower provided the Original
Lenders with that certain Amended and Restated Deed to Secure Debt, Assignment
of Leases and Rents and Security Agreement dated as of December 29, 1997, and
recorded in Official Records Book 9767, page 002, of the public records of
DeKalb County, Georgia (the "Indenture"), wherein Borrower granted to the
Original Lenders a security interest in certain real property located in DeKalb
County, Georgia, and described therein (the "Property") as security for the
Loan.
3. As a condition precedent to and as a material inducement for the
Original Lenders' agreement to provide the Loan to Borrower, the Original
Lenders required Borrower to execute and deliver that certain Environmental
Indemnification Agreement
<PAGE> 3
dated as of December 29, 1997 covering the Property (the "Environmental
Agreement"), which Environmental Agreement was assigned to Agent pursuant to
that certain Assignment of Deed to Secure Debt and Related Loan Documents of
even date herewith.
4. Borrower has applied to the Agent to increase the amount of the Loan
to $150,000,000 and to resyndicate the Loan to additional lenders in order to
finance such increase, and to modify certain other provisions of the Indenture.
The Agent and the other Original Lenders have agreed to such modifications,
provided, among other things, that the Environmental Agreement is modified in
accordance with the terms and conditions hereinafter set forth.
ACCORDINGLY, in consideration of the mutual covenants, promises and
agreements hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Recitals. The recitals hereinabove are true and correct and are
incorporated herein by reference.
2. Additional Lenders. All references to the term "Lender" or "Lenders"
as utilized in the Environmental Agreement shall hereinafter be deemed to refer
to First Union National Bank, as Agent for the Lenders under and as defined in
the Loan Agreement.
3. Additional Promissory Notes. All references to the term "Notes" as
utilized in the Environmental Agreement shall hereinafter be deemed to refer
collectively to those certain Substitution Revolving Promissory Notes and
Revolving Promissory Notes all of even date herewith from Borrower to each of
the Lenders, as applicable.
4. Amendment to Loan Agreement. All references to the term "Loan
Agreement" as utilized in the Environmental Agreement shall hereinafter be
deemed to refer to that certain Second Amended and Restated Revolving Credit
Loan Agreement dated of even date herewith between Borrower and First Union
National Bank, as Agent for the Lenders. All references to the term "Loan" as
utilized in the Environmental Agreement shall hereinafter be deemed to refer to
the Loan evidenced by the Second Amended and Restated Loan Agreement.
5. Amended and Restated Indenture. All references to the term
"Indenture" as utilized in the Environmental Agreement shall hereinafter be
deemed to refer to that certain Second Amended and Restated Deed to Secure Debt,
Assignment of Leases and Security Agreement from Borrower to Agent of even date
herewith, and to be recorded in the public records of DeKalb County, Georgia.
2
<PAGE> 4
6. Ratification. Except as herein expressly amended, the Environmental
Agreement is hereby ratified and confirmed and shall otherwise remain unchanged
and in full force and effect.
7. Capitalized Terms. All initial capitalized defined terms not defined
herein shall have the meanings assigned to them in the Environmental Agreement.
8. Counterparts. This Amendment may be executed in separate counterpart
signature pages, and all such counterparts taken together shall constitute but
one and the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their authorized officers as of the day and year first above
written.
Signed, sealed and delivered in the BORROWER:
presence of:
KOGER EQUITY, INC., a Florida
corporation
/s/ Janice R. Long
- --------------------------------------
Unofficial Witness
By: /s/ G. Danny Edwards
-----------------------------
Name: G. Danny Edwards
/s/ Dee Price ---------------------------
- -------------------------------------- Title: Treasurer
Notary Public -------------------------
Attest: /s/ W. Lawrence Jenkins
-------------------------
Name: W. Lawrence Jenkins
---------------------------
Title: Secretary
------------------
My Commission Expires: Feb. 1, 1999
Public Notary, Camden County, GA [CORPORATE SEAL]
- --------------------------------------
[NOTARY SEAL]
3
<PAGE> 5
Signed, sealed and delivered in the
presence of: LENDER:
FIRST UNION NATIONAL BANK, a
/s/ Alan C. Sheppard, Jr. national association, as Agent
- ----------------------------------------
Unofficial Witness Alan C. Sheppard, Jr.
By: /s/ Andrew Hogshead
------------------------------
/s/ Nancy Hoffmann Name: /s/ J. Andrew Hogshead
- ---------------------------------------- ----------------------------
Notary Public Title: Vice President
--------------------------
Attest: /s/ Lynn E. Vermilva
My Commission Expires: September 3, 2000 -------------------------
Bonded Thru Notary Public Underwriters Name: Lynn E. Vermilva
- ---------------------------------------- ---------------------------
[NOTARY SEAL] Title: Vice President Secretary
-----------------
[CORPORATE SEAL]
4
<PAGE> 1
EXHIBIT 10 (K)(4)(A)(IV)
AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND
PERMITS
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
- -------------------------------------------------------------------------------
AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
- -------------------------------------------------------------------------------
THIS AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS (this
"Assignment") is made and executed this 30th day of December, 1998, by
KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256, Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Agent"), for the
Lenders (as such term is defined in the Second Amended and Restated Revolving
Credit Loan Agreement dated of even date herewith, as amended from time to
time, between Borrower and Lender (the "Loan Agreement").
RECITALS
1. Borrower and Agent, Morgan Guaranty Trust Company of New York, a
New York banking corporation, AmSouth Bank, a state banking corporation, and
Guaranty Federal Bank, F.S.B., a federal savings bank (collectively, the
"Original Lenders"), entered into that certain Amended and Restated Revolving
Credit Loan Agreement dated as of December 29, 1997 (the "Prior Loan
Agreement") pursuant to which the Original Lenders agreed to extend certain
credit to the Borrower from time to time up to a maximum principal amount of
$100,000,000 (the "Loan").
2. As partial security for the Loan, the Borrower provided the
Original Lenders with that certain Amended and Restated Deed to Secure Debt,
Assignment of Leases and Rents and Security Agreement dated as of December 29,
1997, and recorded in Book 9767, page 002, of the public records of DeKalb
County, Georgia (the "DeKalb Mortgage"), wherein the Borrower granted to the
Original Lenders a security interest in certain real property described therein
as security for the Loan.
3. As additional collateral for repayment of the Loan, Borrower made
and delivered to the Original Lenders that certain Assignment of Contracts,
Licenses and Permits dated December 29, 1997 (the "Assignment of Contracts"),
which Assignment of Contracts was assigned to Agent pursuant to that certain
Assignment of Deed to Secure Debt and Related Loan Documents of even date
herewith.
<PAGE> 3
4. The Borrower has applied to the Agent to increase the amount of the
Loan to $150,000,000 and to resyndicate the Loan to additional lenders in order
to finance such increase, and to modify certain other provisions of the
Mortgage. The Agent and the other Original Lenders have agreed to such
modifications, provided, among other things, that the Assignment of Contracts
is modified in accordance with the terms and conditions hereinafter set forth.
5. To further secure the additional indebtedness in connection with
the increase and resyndication of the Loan, Borrower provided the Agent that
certain (i) Second Amended and Restated Deed to Secure Debt, Assignment of
Leases and Rents and Security Agreement dated of even date herewith, which
amends and restates the DeKalb Mortgage and shall be recorded in the public
records of DeKalb County, Georgia, and (ii) Deed to Secure Debt, Assignment of
Leases and Rents and Security Agreement dated of even date herewith,
encumbering the Additional Property described on Exhibit A attached hereto, and
which shall be recorded in the public records of Gwinnett County, Georgia.
ACCORDINGLY, in consideration of the mutual covenants, promises and
agreements hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. Recitals. The recitals hereinabove are true and correct and are
incorporated herein by reference.
2. Additional Lenders. All references to the term "Lender" as utilized
in the Assignment of Contracts shall hereinafter be deemed to refer to First
Union National Bank, as Agent for the Lenders.
3. Additional Property. Exhibit A attached to the Assignment of
Contracts is hereby amended to include the real property located in DeKalb
County, Georgia and Gwinnett County, Georgia, more particularly described on
Exhibit A attached hereto (the "Additional Property"). All references to the
term "Property" as utilized in the Assignment of Contracts shall hereinafter be
deemed to refer to the Property, as such term is defined in the Assignment of
Contracts, and the Additional Property.
4. Additional Promissory Notes. All references to the term "Notes" as
utilized in the Assignment of Contracts shall hereinafter be deemed to refer
collectively to those certain Substitution Revolving Promissory Notes and
Revolving Promissory Notes all of even date herewith from Borrower to each of
the Lenders.
5. Amendment to Loan Agreement. All references to the term "Loan
Agreement" as utilized in the Assignment of Contracts shall hereinafter be
deemed to refer to that certain Second Amended and Restated Revolving Credit
Loan Agreement dated
3
<PAGE> 4
of even date herewith between Borrower and Lender. All references to the term
"Loan" as utilized in the Assignment of Contracts shall hereinafter be deemed
to refer to the Loan evidenced by the Second Amended and Restated Loan
Agreement.
6. Ratification. Except as herein expressly amended, the Assignment of
Contracts is hereby ratified and confirmed and shall otherwise remain unchanged
and in full force and effect.
7. Capitalized Terms. All initial capitalized defined terms not
defined herein shall have the meanings assigned to them in the Assignment of
Contracts.
8. Counterparts. This Agreement may be executed in separate
counterpart signature pages, and all such counterparts taken together shall
constitute but one and the same instrument.
9. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ASSIGNOR, THE ASSIGNEE, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THIS AMENDMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE
MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL
INDUCEMENT FOR THE LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE SUBJECT
TO NO EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 5
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their authorized officers as of the day and year first above
written.
<TABLE>
<CAPTION>
<S> <C>
Signed, sealed and delivered in the BORROWER:
presence of:
KOGER EQUITY, INC., a Florida
corporation
/s/ Janice R. Long By: /s/ G. Danny Edwards
- ----------------------------------------- ----------------------------
Unofficial Witness: Janice R. Long Name: G. Danny Edwards
---------------------- ---------------------------
Title: Treasurer
--------------------------
Attest: W. Lawrence Jenkins
-------------------------
Name: W. Lawrence Jenkins
---------------------------
/s/ Dee Price Title: Secretary
- ----------------------------------------- ---------------
Notary Public
[CORPORATE SEAL]
My Commission Expires: Feb. 1, 1999
Notary Public, Camden County, Georgia
- -----------------------------------------
[Notary Seal]
LENDER:
FIRST UNION NATIONAL BANK, a
national association, as Agent
/s/ Alan C. Sheppard, Jr. By: /s/ Andrew J. Hogshead
- ----------------------------------------- ----------------------------
Unofficial Witness: Alan C. Sheppard, Jr. Name: J. Andrew J. Hogshead
---------------------- --------------------------
Title: Vice President
-------------------------
Attest: /s/ Lynn E. Vermilva
-----------------------
Name: Lynn E. Vermilva
--------------------------
/s/ Nancy Hoffmann Title: Vice President
- --------------------------------------- -------------------------
Notary Public
[CORPORATE SEAL]
My Commission Expires: Sept. 3, 2000
Bonded Thru Notary Public Underwriters
- ---------------------------------------
[Notary Seal]
</TABLE>
5
<PAGE> 6
EXHIBIT A
DESCRIPTION OF PROPERTY
<PAGE> 1
EXHIBIT 10(K)(4)(B)(I)
THIS INSTRUMENT PREPARED BY
AND RECORD AND RETURN TO:
ALAN C. SHEPPARD, JR., ESQ.
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
50 NORTH LAURA STREET, SUITE 2800
JACKSONVILLE, FL 32202-3650
DEED TO SECURE DEBT, ASSIGNMENT OF
LEASES AND RENTS, AND SECURITY AGREEMENT
from
KOGER EQUITY, INC.
to
FIRST UNION NATIONAL BANK,
as Agent
Dated as of December 30, 1998
State: Georgia
Section:
Township:
Range:
County: Gwinnett
Tax I.D.:
- --------------------------------------------------------------------------------
NOTE TO TAX COMMISSIONER: THIS INSTRUMENT SECURES A NOTE CONTAINING A MATURITY
DATE THREE (3) YEARS FROM THE DATE THEREOF AND, THEREFORE, SUCH NOTE IS A
"SHORT-TERM NOTE SECURED BY REAL ESTATE" AS SUCH TERM IS DEFINED IN OFFICIAL
CODE OF GEORGIA ANNOTATED SECTION 48-6-60. CONSEQUENTLY, NO INTANGIBLES TAX IS
DUE UPON THE RECORDATION OF THIS INSTRUMENT. SEE OFFICIAL CODE OF GEORGIA
ANNOTATED SECTION 48-6-61.
<PAGE> 2
DEED TO SECURE DEBT, ASSIGNMENT OF
LEASES AND RENTS, AND SECURITY AGREEMENT
THIS DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND RENTS, AND
SECURITY AGREEMENT (this "Indenture"), dated as of December 30, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Grantor"), whose mailing address is
3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention:
J.C. Teagle, President,
to
FIRST UNION NATIONAL BANK, a national association, as Agent ("Grantee") for the
Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement of even date herewith (the "Loan Agreement").
For purposes of notices permitted or required to be given hereunder, Grantee's
mailing address is 301 South College Street, Charlotte, North Carolina 28288
Attention: First Union Capital Markets Group.
Capitalized terms not otherwise defined herein are defined in Article I.
WITNESSETH:
THIS INDENTURE WITNESSETH, that to secure (A) the payment, performance
and observance of all obligations of Grantor and all indebtedness heretofore or
hereafter from time to time advanced under the Loan Agreement and the payment of
any and all other indebtedness which this Indenture by its terms secures
including, without limitation, the payment of principal and interest on the
Notes which shall (1) be payable to the Lenders, (2) be payable in full not
later than December 30, 2001, and (3) bear interest at a floating rate as set
forth in Section 2.6 of the Loan Agreement; provided, that the maximum aggregate
principal amount of indebtedness secured hereby, other than for advances made
pursuant to Article XXII, Paragraph 22 hereof, shall in no event exceed
$150,000,000.00 (the "Indebtedness") and (B) the performance of the covenants
and agreements contained herein and in the Loan Agreement, and in consideration
of the aforesaid Indebtedness, Grantor hereby irrevocably grants, bargains and
sells, conveys, transfers, assigns, sets over, alienates, hypothecates and
pledges to Grantee and its successors and assigns in and to all of the following
property and rights whether now owned or hereafter acquired by Grantor
(collectively, the "Property"):
(i) the Land;
(ii) all buildings, structures and other improvements
presently situated or hereafter constructed on the Land (collectively, the
"Improvements");
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<PAGE> 3
(iii) all rights, privileges, tenements, hereditaments,
rights of way, easements, rights and appurtenances belonging to or in any way
relating to either the Land or the Improvements;
(iv) all fixtures, machinery, equipment and other personal
property of all types owned by Grantor now or hereafter affixed to and used in
connection with the operation of the Land and Improvements, together with all
additions and accessions thereto, substitutions therefor and replacements
(collectively, the "Fixtures");
(v) all awards or payments, including interest thereon,
which may heretofore and hereafter be made with respect to the Land, the
Improvements or the Fixtures, whether from the exercise of the right of eminent
domain (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of said right), or for a change of grade of any
street, or for any other injury to or decrease in the value of Grantor's rights,
title or interest in and to the Land, the Improvements or the Fixtures;
(vi) all leases and other agreements affecting the use,
enjoyment or occupancy of the Land, the Improvements or the Fixtures now or
hereafter entered into (the "Leases") and rents, revenues, issues and profits
from the Land, the Improvements or the Fixtures (the "Rents") and all proceeds
from the sale or other disposition of the Leases and the right to receive and
apply the Rents to the payment of the Indebtedness;
(vii) all proceeds of and any unearned premiums on any
insurance policies covering the Land, the Improvements or the Fixtures,
including, without limitation, the right to receive and apply the proceeds of
any insurance, judgments, or settlements made in lieu thereof, for damage to the
Land, the Improvements or the Fixtures; and
(viii) the right, in the name and on behalf of Grantor, to
appear in and defend any action or proceeding brought with respect to Grantor's
right, title or interest in and to the Land, the Improvements or the Fixtures
and to commence any action or proceeding to protect the interest of Grantee in
the Land, the Improvements or the Fixtures;
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, for the use, benefit and behoof of Grantee, IN FEE SIMPLE
forever.
PROVIDED ALWAYS, this Indenture is intended to operate and is to be
construed as a deed passing title to the Property to Grantee and is made under
those provisions of the existing laws of the State of Georgia relating to deeds
to secure debt, and not as a mortgage, and is given to secure the payment of the
Indebtedness. Should the Indebtedness be paid according to the tenor and effect
thereof when the same shall become due and payable, and should Grantor perform
all covenants herein in a timely manner, then this Indenture shall be cancelled
and surrendered by Grantee.
3
<PAGE> 4
IN FURTHERANCE OF THE FOREGOING GRANTS (INCLUDING GRANTS OF SECURITY
INTERESTS), BARGAINS, SALES, ALIENATIONS, CONVEYANCES, CONFIRMATIONS, PLEDGES,
TRANSFERS AND ASSIGNMENTS, AND TO PROTECT THE PROPERTY AND THE SECURITY GRANTED
BY THIS INDENTURE, GRANTOR, FOR ITSELF AND FOR ITS SUCCESSORS AND ASSIGNS,
HEREBY WARRANTS, REPRESENTS, COVENANTS AND AGREES AS FOLLOWS:
ARTICLE I
1. Definitions. As used in this Indenture, the following capitalized
terms have the respective meanings set after them, such definitions to be
applicable equally to the singular and plural forms of such terms:
"AmSouth" shall mean AmSouth Bank, a state banking corporation.
"Citizens" shall mean Citizens Bank of Rhode Island, a Rhode Island
financial institution.
"Compass" shall mean Compass Bank, an Alabama banking corporation.
"Default" shall mean any condition or event which constitutes or which
would constitute an Event of Default either with or without notice or lapse of
time, or both.
"Default Rate" shall have the meaning assigned to such term in the Loan
Agreement.
"Event of Default" shall have the meaning assigned to such term in
Article V of this Indenture.
"FUNB" shall mean First Union National Bank, a national association.
"Fixtures" shall have the meaning assigned to such term in clause (iv)
of the Granting Clause of this Indenture.
"GFB" shall mean Guaranty Federal Bank, F.S.B., a federal savings bank.
"Governmental Requirements" shall have the meaning assigned to such
term in the Loan Agreement.
"Grantee" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Grantor" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
4
<PAGE> 5
"Impositions" shall mean, collectively, all taxes of every kind and
nature (including real and personal property, income withholding, profits and
gross receipts taxes), all charges for any easement or agreement maintained for
the benefit of any of the Property, all general and special assessments, levies,
permits, inspection and license fees, all water and sewer rents and other
utility charges, all ground rents, and all other public charges whether of a
like or different nature, even if unforeseen or extraordinary, imposed upon or
assessed against Grantor, Grantee or any portion of the Property as a result of
or arising in respect of the acquisition, occupancy, leasing, use or possession
thereof, or any activity conducted on the Property (including, without
limitation, any gross income tax, sales tax or excise tax levied by any
governmental body on or with respect to the Rents).
"Improvements" shall have the meaning assigned to such term in clause
(ii) of the Granting Clause of this Indenture.
"Indebtedness" shall have the meaning assigned to such term in the
Granting Clause of this Indenture.
"Indenture" shall mean this Deed to Secure Debt, Assignment of Leases
and Rents, and Security Agreement.
"Land" shall mean those certain parcels of real property located in the
County of Gwinnett, State of Georgia, as more particularly described on Exhibit
A attached hereto and incorporated herein.
"Leases" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"Lenders" shall mean FUNB, AmSouth, GFB, Citizens, Compass, and any
other Lenders from time to time under the Loan Agreement.
"Loan Agreement" shall mean that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of December 30, 1998 between Grantor
and Grantee.
"Loan Documents" shall mean this Indenture, the Loan Agreement, the
Notes, the Security Deeds, the Lease Assignments, the Assignments of Contracts,
the Indemnification Agreement, and any other instrument, document, affidavits,
or certificates given by Grantor to the Grantee or any trustee for the benefit
of the Lenders in support of, or evidencing or securing, the Loan.
"Notes" shall mean collectively (i) the Substitution Revolving
Promissory Note dated as of even date herewith made by Grantor payable to the
order of FUNB in the original principal amount of $45,000,000, (ii) the
Substitution Revolving Promissory Note dated as of even date herewith made by
Grantor payable to the order of AmSouth in the original principal amount of
$35,000,000, (iii) the Substitution Revolving Promissory Note dated as
5
<PAGE> 6
of even date herewith made by Grantor payable to the order of GFB in the
original principal amount of $35,000,000, (iv) the Revolving Promissory Note
dated as of even date herewith made by Grantor payable to the order of Citizens
in the original principal amount of $20,000,000, and (v) the Revolving
Promissory Note dated as of even date herewith made by Grantor payable to the
order of Compass in the original principal amount of $15,000,000.
"Other Indenture" shall mean any mortgage, deed to secure debt, or deed
of trust given by Grantor to or in favor of Grantee to secure the Indebtedness,
other than this Indenture.
"Permitted Encumbrances" shall mean those covenants, restrictions,
reservations, liens, conditions and easements listed as exceptions to title as
set forth on Exhibit B attached hereto and incorporated herein.
"Person" shall mean any corporation, natural person, joint venture,
partnership, business trust, joint stock company, trust, unincorporated
organization, government or any department, agency or political subdivision
thereof.
"Property" shall have the meaning assigned to such term in the Granting
Clause of this Indenture.
"Rents" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"State" shall mean the State of Georgia.
"Taking" shall mean a taking or voluntary conveyance during the term
hereof of all or part of the Property, or any interest therein or right accruing
thereto or use thereof, as the result of or in lieu or in anticipation of the
exercise of the right of condemnation or eminent domain.
ARTICLE II
2. Representations and Warranties. Grantor represents and warrants to
Grantee that (a) it has full power, authority and legal right to execute and
deliver this Indenture and to grant a first deed to secure debt of the Property,
(b) it holds good and marketable fee simple title to the Land and good and
marketable title to the balance of the Property, (c) this Indenture constitutes
a valid first deed to secure debt of the Property, subject to the Permitted
Encumbrances, and (d) the Leases are in full force and effect in accordance with
their respective terms, have not been canceled or modified, and have not been
assigned or encumbered except to Grantee pursuant to this Indenture and the Loan
Agreement, and, to the best of Grantor's knowledge, no default exists under the
Leases. Grantor, at its expense, will warrant to Grantee and will defend its
title to the Property and the estate created by this Indenture against all
claims and demands, and will maintain and
6
<PAGE> 7
preserve such estate so long as the Indebtedness secured by this Indenture
remains outstanding, subject, however, to the Permitted Encumbrances.
ARTICLE III
3. Affirmative Covenants. Until this Indenture and the estate created
hereby shall terminate in accordance with Article XVII, Grantor shall comply
with the following covenants:
(a) Recordation, Filing, Etc. At all times cause this Indenture and
each amendment or modification hereof or supplement hereto (and such financing
statements covering the Property under the Uniform Commercial Code as in effect
in the State as may be necessary or appropriate) to be recorded, registered and
filed and kept recorded, registered and filed in such manner and in such places
as appropriate, and comply with all applicable statutes and regulations, in
order to establish, preserve and protect the estate created hereby and the
rights of Grantee hereunder. Grantor shall pay, or shall cause to be paid, all
taxes, fees and other charges incurred in connection with such recording,
registration, filing and compliance.
(b) Maintenance and Repairs. Keep and maintain the Property in good
order, repair and operating condition (ordinary wear and tear excepted) and make
all repairs and replacements necessary to that end.
(c) Payment of Impositions and Utility Charges. Pay all Impositions
while the same may be paid without fine, penalty, interest or additional cost,
unless the same shall be contested in good faith and by appropriate proceedings
by Grantor in the manner permitted by the Loan Agreement. Any Impositions which
are payable in installments may be paid in installments provided that Grantee is
otherwise in compliance with the Loan Agreement. Upon the written request of
Grantee from time to time, Grantor will furnish to Grantee official receipts or
other satisfactory proof evidencing such payments. In addition, Grantor will pay
all utility charges as required by the Loan Agreement. Grantor shall not be
entitled to any credit on the Indebtedness, by reason of the payment of any
Imposition or utility charges or any part thereof.
(d) Compliance with Governmental Requirements. Promptly (i) comply with
all Governmental Requirements unless the same shall be contested in good faith
and by appropriate proceedings by Grantor in the manner permitted by the Loan
Agreement, and (ii) procure, maintain and comply with all licenses or other
authorizations required for any use of the Property then being made, and for the
proper erection, installation, operation, repair and maintenance of the
Improvements and the Fixtures, or any part of either thereof.
(e) Insurance. Maintain insurance of the types and in the amounts
required by, and otherwise complying with the Loan Agreement and promptly
deliver, or cause to be promptly delivered, to Grantee any certificates or
evidence of such insurance as required under the Loan Agreement.
7
<PAGE> 8
(f) Damage, Destruction or Taking. In the event of any damage,
destruction or Taking affecting all or any portion of the Property, Grantor
shall give immediate written and oral notice thereof to Grantee and proceed in
accordance with the terms of the Loan Agreement. In case of any such material
damage, destruction or Taking, Grantee shall be entitled to hold all insurance
proceeds, payments or awards on account thereof, to the same extent Grantor
would be entitled thereto under the Loan Agreement, and Grantor hereby
irrevocably assigns to Grantee all of its rights to any such insurance proceeds,
payments or awards. With respect to a Taking, and in accordance with its
obligations under the Loan Agreement, Grantor will file or prosecute or will
cause to be filed or prosecuted in good faith and with due diligence what would
otherwise be its claim for any such award or payment and cause the same to be
collected and paid over to Grantee. At the sole cost and expense of Grantor,
Grantee may elect to monitor or participate in, and if reasonably necessary, may
hire independent legal counsel to represent Grantee in connection with, any
claim or the claims payment process. Grantor will pay or cause to be paid all
costs and expenses reasonably incurred in connection with any Taking and the
seeking and obtaining of any award or payment in respect thereof. Unless an
Event of Default shall have occurred under the Loan Agreement, all sums so
received by Grantee shall be applied in accordance with the provisions of the
Loan Agreement.
(g) Notification of Default, Etc. Promptly after obtaining knowledge
thereof, notify Grantee of any Default hereunder or under the Loan Agreement or
of any action or proceeding materially and adversely affecting the Property.
(h) Corporate Existence. Preserve and keep in full force and effect its
corporate existence, rights and franchises and privileges as a corporation under
the laws of the State of Georgia and comply with all laws applicable to it, and
do or cause to be done all things necessary to preserve and to keep in full
force and effect its right to own property in the State of Georgia.
(i) Inspection. Permit the Beneficiary or its authorized
representatives to inspect the Property during usual business hours.
ARTICLE IV
4. Negative Covenants. Without the prior written consent of Grantee,
Grantor will not directly or indirectly create or permit to be created or to
remain and will discharge or will cause to be discharged any mortgage, charge,
lien or encumbrance on, or attachment or pledge of, or conditional sale or other
title retention agreement with respect to, the Property or any part thereof, its
interest or the interests of Grantee therein, or the Rents or other sums payable
pursuant to the Leases, except (i) this Indenture, (ii) the Permitted
Encumbrances, (iii) easements, restrictions, liens, charges and other
encumbrances permitted by the Loan Agreement, (iv) liens being contested in good
faith and by appropriate proceedings in the manner permitted by the Loan
Agreement, and (v) liens arising out of or created by any statute, the discharge
of which cannot under the terms of such statute at the particular time be
effected by Grantor; provided, however, that
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<PAGE> 9
any such statutory liens will promptly be discharged as and when such discharge
is possible or permissible. Grantor shall have the right to grant, without the
prior consent of Grantee, any utility easement.
ARTICLE V
5. Events of Default. Any of the following events (each a "Default")
shall, following the passage of any grace or cure period as provided below,
constitute an Event of Default ("Event of Default"):
(a) Grantor shall fail to make any payment of principal under any of
the Notes on or before the same becomes due and payable on maturity thereof; or
Grantor shall fail to make any payment of interest under any of the Notes, or
any fees, costs or expenses due hereunder or thereunder, within 5 days after the
same becomes due and payable.
(b) Any representation or warranty made by Grantor (or any of its
officers) under or in connection with any Loan Document shall be or become
incorrect or untrue, or shall prove to have been incorrect or misleading in any
material respect when made.
(c) Grantor shall fail to perform or observe any term, covenant or
agreement (other than a covenant of payment) contained in any Loan Document on
its part to be performed or observed, and such failure shall remain uncured for
10 days after written notice thereof shall have been given by Grantee to
Grantor, or if such failure cannot by its nature be cured within such 10 day
period, Grantor shall fail to commence and diligently pursue such cure within 10
days after written notice thereof shall have been given by Grantee to Grantor
and shall fail to complete such cure within 60 days after Grantee's initial
written notice of such failure.
(d) An involuntary case or proceeding under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect shall be commenced
against Grantor, and such case or proceeding shall not be dismissed in 60 days;
or a court shall enter a decree, or a court or regulatory authority having
jurisdiction over Grantor shall enter an order, appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator, conservator, supervisor,
rehabilitator (or similar official) of Grantor or for any substantial part of
its property, or ordering the winding-up, supervision or liquidation of its
affairs.
(e) Grantor shall commence a voluntary case or proceeding under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
or proceeding under any such law, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator, supervisor, rehabilitator (or other similar official)
of Grantor or for any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall fail generally to pay
its indebtedness generally as the same becomes due, or shall take any corporate
action in furtherance of any of the foregoing.
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<PAGE> 10
(f) A judgment or order for the payment of money in excess of
$2,500,000 shall be rendered against Grantor and either (A) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (B) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
(g) A Default has occurred and is continuing beyond any applicable
grace or cure period under any Debt (other than the Loan) in excess of
$2,500,000.
(h) Any material provision of the Loan Documents relating to Grantee's
ability to realize on the Collateral following an Event of Default shall for any
reason cease to be valid and binding on Grantor, or Grantor shall so state in
writing.
(i) The Security Agreement shall, as a result of Grantor's acts or
omissions, for any reason, except to the extent permitted by the terms thereof,
cease to create a valid and, upon filing of UCC-1 financing statement(s), UCC-2
Notice Filings, or UCC-3 continuation statements, as applicable, perfected first
priority security interest in any of the Collateral purported to be covered,
which can be so secured or perfected.
ARTICLE VI
6. Remedies in Case of Event of Default.
6.1. Legal Proceedings and Foreclosure. If an Event of Default shall
have occurred, Grantee may proceed by suit or suits at law or in equity or by
any other appropriate remedy to protect and enforce its rights hereunder,
whether for the specific performance of any covenant or agreement contained
herein, or for an injunction against the violation of any of the terms hereof,
or in aid of the exercise of any right, power or remedy available to it, or to
enforce the payment of the Indebtedness under the Loan Agreement, or to
foreclose the estate created by this Indenture and the security interest of this
Indenture as against all or any part of the Property and to have all or any part
of the Property sold, in any manner permitted by law, under the judgment or
decree of a court or courts of competent jurisdiction, or otherwise, and to
pursue any other remedy available to it. If Grantee proceeds to foreclose the
estate created hereby, Grantee shall have the statutory power of sale if
permitted by applicable law. In the event of any such suit or proceeding,
Grantee shall comply with any local laws applicable to any such suits or
proceedings. Any such suit or proceeding instituted by Grantee shall be brought
in its name as Grantee and any recovery or judgment shall be for the benefit of
Grantee. All costs and expenses (including, without limitation, reasonable
attorney's fees and expenses) incurred by Grantee in connection with any such
suit or proceeding, together with interest thereon (to the extent permitted by
law) computed at the Default Rate from the date on which such costs or expenses
are incurred to the date of payment thereof, shall constitute additional
Indebtedness secured by this Indenture and shall be paid by Grantor to Grantee,
as the case may be, on demand.
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<PAGE> 11
6.2. Power of Sale. Without in any way limiting the other provisions of
this Indenture, but in addition thereto and in amplification thereof, upon the
occurrence of any Event of Default, Grantee, at its option, may sell the
Property or any part of the Property at one or more public sale or sales before
the door of the courthouse of the county in which the Property or any part of
the Property is situated, to the highest bidder for cash, in order to pay the
Indebtedness, any and all expenses of sale and of all proceedings in connection
therewith, including reasonable attorneys' fees, after advertising the time,
place and terms of sale once a week for four (4) consecutive weeks (but without
regard to the number of days) in a newspaper in which Sheriff's sales are
advertised in said county. At any such public sale, Grantee may execute and
deliver to the purchaser a conveyance of the Property or any part of the
Property in fee simple, with full general warranties of title and to this end,
Grantor hereby constitutes and appoints Grantee the agent and attorney-in-fact
of Grantor to make any such sale and conveyance and thereby to divest Grantor of
all right, title and equity that Grantor may have in and to the Property and to
vest the same in the purchaser or purchasers at such sale or sales, and all the
acts or 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 Grantor. Grantee, its agents,
representatives, successors or assigns may bid and purchase at any such sale.
The aforesaid power of sale and agency hereby granted are coupled with an
interest and are irrevocable by death or otherwise, are granted as cumulative of
the other remedies provided 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
Indenture by virtue of the exercise of the powers herein granted, pursuant to
any order in any judicial proceeding or otherwise, the Property may be sold as
an entirety or in separate parcels and in such manner or order as Grantee in its
sole discretion may elect, and if Grantee so elects, Grantee may sell the
personal property covered by this Indenture at one or more separate sales in any
manner permitted by the Uniform Commercial Code of the State, and one or more
exercises of the powers herein granted shall not extinguish nor exhaust such
powers, until the entire Property is 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, Grantee may, at its option, exhaust the remedies granted
under any of said security instruments either concurrently or independently, and
in such order as Grantee may determine.
6.3. Acceleration of Maturity. If an Event of Default shall have
occurred, Grantee may declare the entire outstanding Indebtedness under the Loan
Agreement, and all other sums secured hereby, to be due and payable immediately,
and upon such declaration, such Indebtedness and other sums shall immediately
become and be due and payable without demand or notice.
6.4. Leases. Grantee is authorized to foreclose this Indenture subject
to the rights of any tenants of the Property, and the failure to make any such
tenants parties defendant to any such foreclosure proceedings and to foreclose
their rights will not be, nor be asserted by Grantor to be, a defense to any
proceedings instituted by Grantee to collect
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the sums secured hereby or to collect any deficiency remaining unpaid after the
foreclosure sale of the Property.
6.5. Suits to Protect the Property. Grantee shall have the power and
authority to institute and maintain any suits and proceedings as Grantee may
deem advisable (a) to prevent any impairment of the Property by any acts which
may be unlawful or any violation of this Indenture, (b) to preserve or protect
its interest in the Property, and (c) to restrain the enforcement of or
compliance with any legislation or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid, if the enforcement of or
compliance with such enactment, rule or order might impair the security
hereunder or be prejudicial to Grantee's interest.
6.6. Discontinuance of Proceedings; Position of Parties Restored. If
Grantee shall have proceeded to enforce any right or remedy under this Indenture
by foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, then and in every such instance,
Grantor and Grantee shall, except to the extent modified by such proceedings, be
restored to their former positions and rights hereunder, and all rights, powers
and remedies of Grantee shall continue as if no such proceeding had occurred or
had been taken.
6.7. Grantor to Pay the Indebtedness on Any Default in Payment;
Application of Monies by Grantee.
(a) If an Event of Default shall occur as a result of Grantor's failure
to pay any amount due under the Loan Agreement or this Indenture, then, upon
Grantee's demand, Grantor will pay to Grantee the whole amount due and payable
under the Loan Agreement and all other sums secured hereby. If Grantor shall
fail to pay the same forthwith upon such demand, Grantee shall be entitled to
sue for and to recover judgment for the whole amount so due and unpaid together
with costs and expenses, including the reasonable compensation, expenses and
disbursements of Grantee's agents, attorneys and other representatives. Grantee
shall be entitled to sue and recover judgment as aforesaid either before, after
or during the pendency of any proceedings for the enforcement of this Indenture,
and the right of Grantee to recover such judgment shall not be affected by any
taking of possession or foreclosure sale hereunder, or by the exercise of any
other right, power or remedy for the enforcement of the terms of this Indenture,
or the foreclosure of the estate created hereby.
(b) In case of a foreclosure sale of all or any part of the Property
and of the application of the proceeds of sale to the payment of the sums
secured hereby, Grantee shall be entitled to enforce payment of and to receive
all amounts then remaining due and unpaid and to recover judgment for any
portion thereof remaining unpaid, with interest.
(c) Grantor hereby agrees, to the extent permitted by law, that no
recovery of any such judgment by Grantee and no attachment or levy of any
execution upon any of the Property or any other property shall in any way affect
the estate created hereby upon the
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Property or any part thereof or any lien, rights, powers or remedies of Grantee
hereunder, but such lien, rights, powers and remedies of Grantee hereunder shall
continue unimpaired as before.
ARTICLE VII
7.1. Purchase of the Property by Grantee. Upon any foreclosure sale,
Grantee may bid for and purchase the Property, and, upon compliance with the
terms of sale, may hold, retain and possess and dispose of such Property in its
own absolute right without further accountability.
7.2. Application of Indebtedness Toward Purchase Price. If Grantee
purchases the Property pursuant to foreclosure, power of sale or otherwise, then
Grantee may, in lieu of cash, apply all or any portion of the sums due to
Grantee under the Loan Agreement and this Indenture or any other instrument
securing the Indebtedness, to the unpaid balance of the purchase price remaining
after payment of any portion of the purchase price required to be paid in cash,
and the costs and expenses of the sale, compensation and other charges relating
to the sale.
ARTICLE VIII
8. Waiver of Appraisement, Valuation, Etc. Grantor hereby waives, to
the full extent it may lawfully do so, the benefit of all appraisement,
valuation, stay, moratorium, exemption from execution, extension and redemption
laws now or hereafter in force and all rights of marshaling in the event of the
sale of the Property or any part thereof or any interest therein.
ARTICLE IX
9. Appointment of Receiver. If an Event of Default shall have occurred,
Grantee shall, as a matter of right, be entitled, ex parte and without notice,
to the appointment of a receiver or receivers of the Property or any part
thereof in accordance with Georgia Official Code ss.9-8-3 and without regard to
the value of the Property as security for the Indebtedness, or the solvency or
insolvency of any Person liable for the payment of the Indebtedness and without
necessity or requirement for posting bond, whether such receivership be
incidental to a proposed sale thereof or otherwise, and Grantor hereby consents
to the appointment of such a receiver or receivers and will not oppose any such
appointment. Any receiver which may be appointed pursuant to this paragraph,
shall have the right, but not the obligation, to take possession, manage and
operate the Property, together with such other powers conferred upon it by the
appointing court. The expenses, including receiver's fees, attorney's fees,
costs and agent's compensation, incurred pursuant to the powers herein contained
shall be secured by this Indenture.
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ARTICLE X
10. Possession, Management and Income. If an Event of Default shall
have occurred under this Indenture, Grantee, without further notice, may enter
upon and take possession of the Property or any part thereof, in any manner
permitted by law, by reasonable force, summary proceedings, ejectment or
otherwise and may remove Grantor and all other Persons and any and all property
therefrom, and Grantee may hold, operate and manage the same, make all necessary
or proper repairs, renewals, and replacements, and useful alterations,
additions, betterments and improvements thereto and thereon as may seem
advisable to either of them, and insure and reinsure the Property as may seem
advisable and to either of them, and may receive all earnings, income, rents,
issues and proceeds accruing with respect thereto. Any amounts so received by
Grantee shall be applied (a) to pay (i) the expenses of operating the Property
and of all maintenance, repairs, renewals, replacements, alterations, additions,
betterments, improvements, taxes, assessments, insurance premiums, reasonable
compensation for the services of all attorneys, advisors, brokers, receivers,
agents and other employees engaged or employed by Grantee and all other costs
and expenses of entering a bond and taking possession of and holding the
Property, and (ii) any lien prior to the estate created hereby which Grantee may
consider it necessary or desirable to discharge and then (b) in the manner
provided in Article XI of this Indenture. If an Event of Default shall have
occurred under the Loan Agreement or if the Loan Agreement shall be terminated,
all sums so received by Grantee shall be applied in the manner specified in
Article XI of this Indenture.
ARTICLE XI
11. Application of Proceeds. The proceeds of (a) the operation and
management of the Property pursuant to Article X of this Indenture, and (b) any
sale of the Property or any interest therein, shall, unless otherwise provided
in the Loan Agreement, be applied as follows:
First: to the costs and expenses of the sale, reasonable attorneys'
fees and expenses, court costs, and any other expenses or advances made or
incurred in the protection of the rights of Grantee or in the pursuance of any
remedies hereunder;
Second: to any lien prior to the estate created hereby which Grantee
may consider it necessary or desirable to discharge;
Third: to any Indebtedness secured by this Indenture and at the time
due and payable (whether by acceleration or otherwise);
Fourth: to Grantee for payment of the Notes outstanding; and
Fifth: the balance, if any, to Grantor.
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ARTICLE XII
12. Remedies, Etc., Cumulative. Each legal, equitable or contractual
right, power or remedy of Grantee now or hereafter provided herein or by statute
or otherwise shall be cumulative and concurrent and shall be in addition to
every other right, power and remedy, and the exercise or beginning of the
exercise by Grantee of any one or more of such rights, powers and remedies shall
not preclude the simultaneous or later exercise of any or all such other rights,
powers and remedies.
ARTICLE XIII
13. No Waiver, Etc. No failure by Grantee to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach hereof shall constitute a waiver of any such term or of
any such breach. No acceptance of the payment of any sums due under this
Indenture or under the Loan Agreement during the continuance of any Default
shall constitute a waiver thereof. No waiver of any breach shall affect or alter
this Indenture which shall continue in full force and effect with respect to any
other then existing or subsequent breach.
ARTICLE XIV
14. Right of Grantee to Perform Covenants, Etc. If Grantor shall fail
to make any payment or perform any act required to be made or performed
hereunder and such failure shall not be cured within the applicable grace
period, if any, Grantee, without notice to or demand upon Grantor and without
waiving or releasing any obligation or Default, may (but shall be under no
obligation to) at any time thereafter make such payment or perform such act for
the account and at the expense of Grantor and may enter upon the Property or any
part thereof for such purpose and take all such action thereon as, in the
opinion of Grantee, may be necessary or appropriate therefor. All sums so paid
by Grantee and all costs and expenses (including, without limitation, attorneys'
fees and expenses) so incurred shall constitute additional Indebtedness secured
by this Indenture and shall be paid by Grantor to Grantee on demand.
ARTICLE XV
15. Certificate as to No Default, Etc.; Information. At any time and
from time to time, Grantor will deliver to Grantee, promptly upon request, a
certificate signed by a duly authorized officer of Grantor stating that, to the
best of the signer's knowledge after making due inquiry, there is no Default
hereunder, or if any such Default exists to his knowledge, specifying the nature
and period of existence thereof and what action Grantor is taking or proposes to
take with respect thereto. Grantor will also furnish promptly to Grantee, such
information with respect to the Property and the Leases as may from time to time
be requested.
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ARTICLE XVI
16. Additional Instruments. Grantor, at its expense, will execute,
acknowledge, secure and deliver all such instruments and take all such action as
Grantee from time to time may reasonably request for the better assuring of the
Property, rights and obligations now or hereafter subjected to the security of
this Indenture or intended so to be.
ARTICLE XVII
17. Satisfaction of the Indenture. This Indenture and the estate
created hereby shall terminate after the payment in full of (a) all the
Indebtedness and (b) all other sums secured hereby. Upon such termination, and
upon surrender of this Indenture for cancellation, Grantee shall release,
without warranty, the Property then subject to the estate created hereby to the
Persons entitled thereto. The recitals in any satisfaction executed under this
Indenture of any matters of fact shall be conclusive proof of the truthfulness
thereof. The grantee in such release may be described as "the person or persons
legally entitled thereto". Grantee, at Grantor's expense, shall execute and
deliver such instruments of release, satisfaction and termination in proper form
for recording or filing, as may be appropriate to evidence the release of (a)
the Property from the estate created hereby, and (b) any other security held by
Grantee and such satisfaction and termination, and such instruments, when duly
executed, recorded and filed, shall conclusively evidence the release,
satisfaction and termination of this Indenture.
ARTICLE XVIII
18. Applicable Law; Severability.
(a) This Indenture shall be governed by and construed in accordance
with the laws of the State.
(b) All rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not violate any applicable
law, and are intended to be limited to the extent necessary so that they will
not render this Indenture invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law. If any term or provision of this
Indenture shall be held to be invalid, illegal or unenforceable, the validity of
the other terms and provisions hereof shall in no way be affected thereby.
ARTICLE XIX
19. Miscellaneous. This Indenture (a) may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought, and (b) shall be binding upon Grantor, its successors and assigns, and
all Persons claiming under or through Grantor or any such successor or assign,
and shall inure to the benefit of and be enforceable by Grantee and its
successors and assigns. The headings in this Indenture are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
agreements between Grantor and Grantee, whether now existing or hereafter
arising
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and whether written or oral, are hereby limited so that in no contingency,
whether by reason of demand or acceleration of the maturity of any payments
hereunder or under the Loan Agreement or otherwise, shall the interest
contracted for, charged, received, paid or agreed to be paid to Grantee exceed
the maximum amount permissible under applicable law. If, in any circumstance
whatsoever, interest would otherwise be payable to Grantee in excess of the
maximum lawful amount, and if in any circumstance Grantee shall ever receive
anything of value deemed interest by applicable law in excess of the maximum
lawful amount, an amount equal to any excessive interest shall be applied to the
reduction of advances under the Loan Agreement and not to the payment of
interest, or if such excessive interest exceeds the unpaid advances under the
Loan Agreement, such excess shall be refunded to Grantor. All interest paid or
agreed to be paid to Grantee shall, to the extent permitted by applicable law,
be amortized, prorated, allocated, and spread throughout the full period until
payment in full of the principal so that the interest hereon for such full
period shall not exceed the maximum amount permitted by applicable law. This
paragraph shall control all agreements between Grantor and Grantee. This
Indenture may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one and the same
instrument.
ARTICLE XX
20. Change in Method of Taxation. In the event of the passage, after
the date of this Indenture, of any law changing in any way the laws now in force
for the taxation of mortgages or debts secured thereby, for state or local
purposes, or the operation of any such taxes so as to adversely affect the
interest of Grantee in the Property, this Indenture or the Loan Agreement,
Grantor shall, upon demand, bear and pay the full amount (or any partial amount)
requested by Grantee, of taxes resulting from such changes hereunder without
offset or credit against any other sums due under the Loan Agreement or on the
Notes.
ARTICLE XXI
21. No Petition. Grantee hereby covenants and agrees that it will not
institute against, or join any Person in instituting against Grantor, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law at any time other than on a date which is at least one (1) year and
one (1) day after the payment in full of the Notes; provided, however, that
nothing in this Article shall constitute a waiver of any right to
indemnification, reimbursement or other payment from Grantor pursuant to the
Loan Agreement.
ARTICLE XXII
22. The Indenture Secures Future Advances. This Indenture is given to
secure not only the amount initially secured by this Indenture, but also such
future advances, whether such advances are obligatory or are to be made at the
option of Grantee, or otherwise, to the same extent as if such future advances
were made on the date of the
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execution of this Indenture. The total amount of Indebtedness that may be so
secured may decrease or increase from time to time, but the total unpaid balance
so secured at one time shall not exceed two (2) times the face amount of the
amount initially secured by this Indenture, plus interest thereon.
ARTICLE XXIII
23. Assignment of Leases and Rents. Grantor hereby grants, transfers
and assigns to Grantee Grantor's entire right, title and interest in and to the
Leases and Rents. This assignment of Leases and Rents by Grantor to Grantee is
intended to operate as an absolute and immediate assignment of such Leases and
Rents.
23.1. Grantor's Representations and Warranties.
(a) Grantor has good and lawful right, title, and interest in and to
the Leases, is entitled to receive the Rents from the Leases and from the
Property, has full power and authority to assign the Leases as provided herein
and to grant to and confer upon Grantee the powers, interests and authority set
forth herein, and has not assigned the Leases or Rents to any other party;
(b) Grantor has neither done any act nor omitted to do any act which
might prevent Grantee from, or limit Grantee in, acting under any of the
provisions of this assignment of Leases and Rents;
(c) All Leases provide for Rent to be paid monthly, in advance, and
Grantor has not accepted and will not accept payment of Rent for more than one
(1) month in advance; provided, however, Grantor may accept payment of Rent two
(2) months in advance if such Rent accepted two (2) months in advance does not
exceed five percent (5%) of the Rent collected during the applicable month; and
there are no agreements, understandings, or undertakings by Grantor providing
for free or reduced Rent in the past or in the future except as provided in the
Leases;
(d) Except as disclosed to Grantee in writing, Grantor is not now in
default, the nature of which could have a material adverse impact on the
financial condition of Grantor or the value of the Property, under any provision
of any of the Leases, and no tenant under any of the Leases has claimed or
asserted any defense, offset, counter-claim, or abatement of rent, and that the
Leases remain in full force and effect. Grantor further represents and warrants
that it has no knowledge of any default by any tenant under any of the Leases
that could materially adversely affect the value of the Property;
(e) This assignment of Leases and Rents, the Leases, the performance of
each and every covenant of Grantor under the Leases, and the enforcement by
Grantee of its rights hereunder does not conflict with, or will not conflict
with, and does not constitute or will not constitute a breach or default, under
any agreement, indenture or other instrument
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to which Grantor is a party, or so far as is known to Grantor, any law,
ordinance, administrative regulation or court decree which is applicable to
Grantor;
(f) No action has been brought or, so far as is known to Grantor, is
threatened, which would interfere in any way with the right of Grantor to
execute and deliver this assignment of Leases and Rents, and to perform all of
Grantor's obligations contained in this assignment of Leases and Rents and in
the Leases; and
(g) To Grantor's knowledge, the Leases are valid, enforceable and in
full force and effect.
23.2. Grantor's Covenants. Grantor hereby covenants and agrees to and
with Grantee as follows:
(a) Grantor will notify Grantee in writing (but without any right of
approval or denial on the part of Grantee) of any termination, substitution or
material modification of any Leases involving 10,000 or more Koger Net Square
Feet (as defined in the Loan Agreement);
(b) Grantor hereby acknowledges that any and all Rents collected or
received by Grantor after the occurrence of an Event of Default will be the
property of Grantee, which if received and collected by Grantor, will be
considered received and collected on Grantee's behalf and as Grantee's agent,
and will be held by Grantor in trust for the benefit of Grantee, and Grantor
will deliver all such sums to Grantee immediately upon Grantor's request
therefor;
(c) In accordance with sound business judgment, Grantor will use its
reasonable best efforts, at its cost and expense, to observe, perform and
discharge, or cause to be observed, performed and discharged, all of the
obligations and undertakings of Grantor or its agents under the Leases, and will
use its best efforts, in accordance with sound business judgment, to enforce or
secure, or cause to be enforced or secured, the performance of each and every
obligation and undertaking of the respective tenants under the Leases, and will
appear in and defend, at its cost and expense, any action or proceeding arising
under or in any manner connected with the Leases or the obligations and
undertakings of any tenant thereunder. Grantor will not do or permit to be done
anything to impair the security thereof, including without limitation the
execution of any other assignment of Grantor's interest in the Leases or the
Rents, without Grantee's prior written consent;
(d) Grantor authorizes and directs each and every present and future
tenant under the Leases to pay all Rent to Grantee upon receipt of written
demand from Grantee to so pay the same, and upon paying the same, such tenants
will be relieved from all liability to Grantor for such Rent in all respects. To
the extent not so provided by applicable law, each Lease will provide that, in
the event of enforcement by Grantee of the remedies provided for by law or by
this assignment of Leases and Rents, the tenant thereunder will,
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upon request of any person succeeding to the interest of Grantor as a result of
such enforcement, automatically become the tenant of said successor in interest,
without change in the terms or other provisions of such Lease. Any such
successor in interest will not be bound by any payment of rent or additional
rent made more than one (1) month in advance;
(e) This assignment of Leases and Rents will not obligate Grantee to
take any action or to incur expenses or perform or discharge any obligation,
duty or liability of Grantor under any Lease, or for the control, care,
management, or repair of the Property; nor will it operate to make Grantee
responsible or liable for any waste committed on the Property by the tenants or
any other parties or for any dangerous or defective condition of the Property,
or for any act or omission relating to the management, upkeep, repair, or
control of the Property that results in loss or injury or death to any person.
Grantee will not be liable for any loss sustained by Grantor resulting from
Grantee's failure to lease the Property after default. Grantor will and does
hereby indemnify and agree to hold harmless Grantee from and against any and all
liability, loss, cost, damage or expense which may be incurred under the Leases
or by reason of this assignment of Leases and Rents and from any and all claims
and demands whatsoever which may be asserted against Grantee by reason of any
alleged obligations or undertakings on its part to perform or discharge any of
the terms, covenants, or agreements contained in the Leases except to the extent
the same is caused by the negligence of Grantee. Should Grantee incur any such
liability under the Leases or by reason of this assignment of Leases and Rents
or in defense of any such claims or demands, the amount thereof, including
costs, expenses, and reasonable attorneys' and paralegals' fees and costs, will
be secured hereby and Grantor will reimburse Grantee therefor immediately upon
demand and upon the failure of Grantor so to do, Grantee may, at its option,
declare all sums secured hereby immediately due and payable, or may charge the
costs thereof to Grantor as an advance under the Notes; and
(f) This assignment of Leases and Rents is made without prejudice to
any of the rights and remedies possessed by Grantee under the Loan Agreement,
and the right of Grantee to exercise its remedies under this assignment of
Leases and Rents may be exercised by Grantee either prior to, simultaneously
with, or subsequent to any action taken by it under the Loan Agreement. Each and
every right, remedy and power granted to Grantee by this assignment of Leases
and Rents will be cumulative and in addition to any other right, remedy and
power given by the Loan Agreement now or hereafter existing in equity, at law or
by virtue of statute or otherwise. Nothing contained in this assignment of
Leases and Rents, and no act done or omitted by Grantee pursuant to the powers
and rights granted it hereunder, nor the failure of Grantee to avail itself of
any of the rights and remedies under this assignment of Leases and Rents, will
be construed or deemed to be a waiver of any of Grantee's rights and remedies
under this assignment of Leases and Rents, nor will such exercise or omission to
exercise of the powers and rights granted Grantee hereunder be deemed to
constitute a waiver of its rights and remedies under the Loan Agreement.
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23.3. Grantee's Covenants.
(a) Although this assignment of Leases and Rents constitutes a present
and absolute assignment of the Leases and the Rents, as long as there is no
Event of Default on the part of Grantor, Grantee will not require that such
Rents be paid directly to Grantee, and Grantor will have a license to collect
and use the Rents for subsequent application as provided above;
(b) Upon the payment and performance in full of Grantor's obligations
under the Loan Agreement, as evidenced by the recording or filing of an
instrument of satisfaction or termination of this Indenture without the
recording of another security instrument in favor of Grantee affecting the
Property, this assignment of Leases and Rents will be deemed terminated and
released of record by Grantee and thereupon will be null and void and of no
further force or effect.
23.4. Remedies. If any Event of Default occurs, Grantee may, at its
option, with or without notice or demand of any kind, exercise any and all of
the following remedies:
(a) Either in person, by court appointed receiver or by agent, with or
without bringing any action or proceeding, demand and thereupon take possession
of the Property, to have, hold, manage, lease and operate the same on such terms
and for such period of time as Grantee may deem proper, and either with or
without taking possession of the Property in its own name, demand and receive
the Rents in the possession of Grantor at the time of Grantee's written demand
or collected thereafter, including those past due and unpaid, with full power to
make from time to time all alterations, renovations, repairs, or replacements
thereto or thereof as may seem proper to Grantee, and to apply such Rents to the
payment of: (i) all reasonable expenses of managing the Property, including,
without limitation, the salaries, fees and wages of the managing agent and such
other employees as Grantee may deem necessary or desirable, all taxes, charges,
claims, assessments, liens, premiums for all insurance which Grantee may deem
necessary or desirable, costs of renovations, repairs, or replacements, and all
expenses incident to taking and retaining possession of the Property and
protecting and preserving the same; or (ii) the principal sum and interest
thereon of the Notes, together with all costs and attorneys' and paralegals'
fees and costs; all in such order or priority as Grantee in its sole discretion
may determine, any custom or use to the contrary notwithstanding; and
(b) In the name of Grantor or of Grantee, institute any legal or
equitable action which Grantee in its sole discretion deems desirable to collect
and receive any or all of the Rents.
Nothing herein contained will be construed to cause Grantee to be a
mortgagee in possession nor will Grantee be liable for laches for failure to
collect the Rents, and it is understood that Grantee is to account only for such
sums as are actually received by Grantee.
23.5. Further Assurances. At Grantee's request, Grantor will assign and
transfer to Grantee any and all subsequent Leases upon all or any part of the
Property and to
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execute and deliver at the request of Grantee all such further assurances and
assignments in the Leases and the Rents as Grantee will require from time to
time in its sole discretion.
23.6. Subordination, Nondisturbance and Attornment. The Leases are and
at all times shall be subject and subordinate in all respects to this Indenture,
and to all renewals, modifications, amendments, consolidations, replacements,
refinancings and extensions of this Indenture, to the full extent of all
principal, interest and all other amounts secured hereby. Provided that a tenant
is not in default under its Lease, Grantee shall not disturb the occupancy of
such tenant under its Lease during the term of such Lease, notwithstanding
foreclosure of this Indenture, acceptance of a deed in lieu of foreclosure or
exercise of any other remedy provided herein, or pursuant to the laws of the
State of Georgia. If requested by a tenant under any of the Leases or upon
Grantee's request, Grantor shall enter into a subordination, nondisturbance and
attornment agreement (reasonably acceptable in form and substance to Grantee)
with such tenant whereby Grantee will agree to not disturb the tenant in its
possession of the Property provided such tenant is not in default under its
Lease and the tenant will agree to attorn to Grantee if Grantee takes possession
of the Property.
ARTICLE XXIV
24. Security Agreement.
(a) This Indenture is hereby made and declared to be a security
agreement, encumbering each and every item of personal property included herein,
in compliance with the provisions of the Uniform Commercial Code as enacted in
the State. A financing statement or statements reciting this Indenture to be a
security agreement, affecting all of said personal property aforementioned,
shall be executed by Grantor and Grantee and appropriately filed. The remedies
for any violation of the covenants, terms and conditions of the security
agreement herein contained shall be (i) as prescribed herein, or (ii) as
prescribed by general law, or (iii) as prescribed by the specific statutory
consequences now or hereafter enacted and specified in said Uniform Commercial
Code, all at Grantee's sole election. Grantor and Grantee agree that the filing
of such financing statement(s) in the records normally having to do with
personal property shall never be construed as in any way derogating from or
impairing this declaration and hereby stated intention of Grantor and Grantee
that everything used in connection with the production of income from the
Property and/or adapted for use therein and/or which is described or reflected
in this Indenture, is, and at all times and for all purposes and in all
proceedings both legal or equitable shall be, regarded as part of the Property
irrespective of whether (i) any such item is physically attached to the
Improvements, (ii) serial numbers are used for the better identification of
certain items capable of being thus identified in a recital contained herein, or
(iii) any such item is referred to or reflected in any such financing
statement(s) so filed at any time. Similarly, the mention in any such financing
statement(s) of the rights in and to (aa) the proceeds of any fire and/or hazard
insurance policy, or (bb) any award in eminent domain proceeds for a taking or
for loss of value, or (cc) Grantor's interest as lessor in any present or future
lease or rights to income growing out of the use and/or
22
<PAGE> 23
occupancy of the Property, whether pursuant to lease or otherwise shall never be
construed as in anyway altering any of the rights of Grantee as determined by
this instrument impugning the priority of Grantee's estate granted hereby or by
any other recorded document, but such mention in such financing statement(s) is
declared to be for the protection of Grantee in the event any court shall at any
time hold with respect to the foregoing (aa), (bb) or (cc), that notice of
Grantee's priority of interest to be effective against a particular class of
persons, must be filed in the Uniform Commercial Code records.
(b) Grantor warrants that (i) Grantor's (that is "Debtor's") name,
identity or corporate structure and residence or principal place of business are
as set forth in Exhibit C hereto; (ii) Grantor (that is, "Debtor") has been
using or operating under said name, identity or corporate structure without
change for the time period set forth in Exhibit C hereto; and (iii) the location
of the collateral is upon the Property. Grantor covenants and agrees that
Grantor will furnish Grantee with notice of any change in the matters addressed
by clauses (i) or (iii) of this subparagraph (b) within thirty (30) days of the
effective date of any such change and Grantor will promptly execute any
financing statements or other instruments deemed necessary by Grantee to prevent
any filed financing statement from becoming misleading or losing its perfected
status.
ARTICLE XXV
25. Waiver of Homestead. Grantor hereby waives and renounces all
homestead and exemption rights provided for by the Constitution and laws of the
United States and of any state, in and to the Property as against the collection
of the secured obligations, or any part hereof.
ARTICLE XXVI
26. WAIVER OF GRANTOR'S RIGHTS. BY EXECUTION OF THIS INDENTURE, GRANTOR
EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT TO ACCELERATE THE INDEBTEDNESS SECURED
HEREBY AND THE POWER OF ATTORNEY GIVEN HEREIN TO GRANTEE TO SELL THE PROPERTY BY
NONJUDICIAL FORECLOSURE UPON DEFAULT BY GRANTOR 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 INDENTURE; (B) WAIVES ANY AND ALL
RIGHTS WHICH GRANTOR MAY HAVE UNDER THE CONSTITUTION OF THE UNITED STATES
(INCLUDING THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF, THE VARIOUS PROVISIONS
OF THE CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER
APPLICABLE LAW), (1) TO NOTICE AND JUDICIAL HEARING PRIOR TO THE EXERCISE BY
GRANTEE OF ANY RIGHT OR REMEDY HEREIN PROVIDED TO GRANTEE EXCEPT SUCH NOTICE (IF
ANY) AS IS SPECIFICALLY REQUIRED TO BE PROVIDED IN THIS INDENTURE; AND (2)
CONCERNING THE APPLICATION, RIGHTS OR BENEFITS OF ANY MORATORIUM, REINSTATEMENT,
MARSHALING,
23
<PAGE> 24
FORBEARANCE, APPRAISEMENT, VALUATION, STAY, EXTENSION, HOMESTEAD, EXEMPTION OR
REDEMPTION LAWS; (C) ACKNOWLEDGES THAT GRANTOR HAS READ THIS INDENTURE AND ANY
AND ALL QUESTIONS REGARDING THE LEGAL EFFECT OF THIS INDENTURE AND ITS
PROVISIONS HAVE BEEN EXPLAINED FULLY TO GRANTOR AND GRANTOR HAS CONSULTED WITH
COUNSEL OF GRANTOR'S CHOICE PRIOR TO EXECUTING THIS INDENTURE; AND (D)
ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF GRANTOR HAVE BEEN MADE
KNOWINGLY, INTENTIONALLY AND WILLINGLY BY GRANTOR AS PART OF A BARGAIN FOR THE
LOAN TRANSACTION AND THAT THIS INDENTURE IS VALID AND ENFORCEABLE BY GRANTEE
AGAINST GRANTOR IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS HEREOF.
ARTICLE XXVII
27. Approval of Legal Description. Grantor has read and does hereby
approve the legal description of the Land which Is the subject hereof, as set
forth in Exhibit A attached hereto, and hereby indemnifies Grantee and its
attorneys with respect to any liability which might arise as a consequence of
any error or omission therein.
ARTICLE XXVIII
28. Loan Agreement. The terms, provisions, conditions, representations
and warranties and covenant of the Loan Agreement are incorporated herein by
reference. In the event of a conflict between this Indenture and the Loan
Agreement, the Loan Agreement shall control.
ARTICLE XXIX
29. WAIVER OF JURY TRIAL. GRANTOR AND GRANTEE, BY ITS ACCEPTANCE
HEREOF, EACH ACKNOWLEDGE AND AGREE THAT NEITHER GRANTOR NOR GRANTEE, NOR ANY
ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF ANY OF THE SAME, WILL SEEK
A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION
PROCEDURE BASED UPON OR ARISING OUT OF THIS DEED TO SECURE DEBT, THE NOTES, THE
LOAN AGREEMENT OR THE LOAN DOCUMENTS, ANY COLLATERAL, OR THE DEALINGS OR THE
RELATIONSHIP BETWEEN GRANTOR AND GRANTEE RELATED THERETO. NEITHER OF THE PARTIES
WILL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN WHICH A JURY
TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY
NEGOTIATED BY GRANTOR AND GRANTEE, ARE MADE KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT FOR GRANTEE TO MAKE THE LOAN
TO GRANTOR, AND WILL BE SUBJECT TO NO EXCEPTIONS.
24
<PAGE> 25
IN WITNESS WHEREOF, Grantor has caused this Indenture to be executed,
sealed, and attested by its proper officers thereunto duly authorized, as of the
day and year first above written.
Signed, sealed and delivered in the KOGER EQUITY, INC., a Florida
presence of: corporation
/s/ Janice R. Long By: /s/ G. Danny Edwards
- ----------------------------------- -------------------------------------
Unofficial Witness Name: G. Danny Edwards
----------------------------------
Title: Treasurer
----------------------------------
/s/ Dee Price
- -----------------------------------
Notary Public Attest: /s/ W. Lawrence Jenkins
---------------------------------
Name: W. Lawrence Jenkins
-----------------------------------
Title: Corporate Secretary
---------------------------------
My Commission Expires: Feb. 1, 1999 [CORPORATE SEAL]
Notary Public, Camden County, Georgia
- -------------------------------------
[NOTARY SEAL]
25
<PAGE> 26
EXHIBIT A
The Land
<PAGE> 27
EXHIBIT B
Permitted Encumbrances
<PAGE> 28
EXHIBIT C
DEBTOR
NAME: Koger Equity, Inc.
CORPORATE
STRUCTURE: a Florida corporation
PRINCIPAL PLACE
OF BUSINESS: 3986 Boulevard Center Drive #101
Jacksonville, Florida 32207
TIME PERIOD
USING NAME
WITHOUT CHANGE June 21, 1988, to present
SECURED PARTY
NAME: First Union National Bank, as Agent for the
Lenders
PRINCIPAL PLACE
OF BUSINESS: 301 South College Street
Charlotte, North Carolina 28288
<PAGE> 1
EXHIBIT 10(k)(4)(b)(ii)
THIS INSTRUMENT PREPARED BY
AND RECORD AND RETURN TO:
Alan C. Sheppard, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, FL 32202-3650
ASSIGNMENT OF LEASES AND RENTS
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made and
executed as of this 30th day of December, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Assignor"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Assignee"), for
the Lenders under that certain Second Amended and Restated Revolving Credit Loan
Agreement (the "Loan Agreement"), whose address is 301 South College Street,
Charlotte, North Carolina 28288 Attention: First Union Capital Markets Group.
The terms Borrower and Lender, whenever hereinafter used will be construed to
refer to and include the heirs, legal representatives, executors,
administrators, successors and assigns of said parties.
Capitalized terms not defined herein shall have the meanings ascribed to them in
the Loan Agreement.
R E C I T A L S:
A. Assignor is the grantor under that certain Deed to Secure Debt,
Assignment of Leases and Rents and Security Agreement given by Assignor to
Assignee dated of even date herewith and recorded or to be recorded in the
public records of Gwinnett County, Georgia (the "Deed to Secure Debt"); securing
the following Substitution Revolving Promissory Notes and Revolving Promissory
Notes: (i) the Substitution Revolving Promissory Note dated as of even date
herewith made by Assignor payable to the order of FUNB in the original principal
amount of $45,000,000, (ii) the Substitution Revolving Promissory Note dated as
of even date herewith made by Assignor payable to the order of AmSouth in the
original principal amount of $35,000,000, (iii) the Substitution Revolving
Promissory Note dated as of even date herewith made by Assignor payable to the
order of GFB in the original principal amount of $35,000,000, (iv) the Revolving
Promissory Note dated as of even date herewith made by Assignor payable to the
order of Citizens in the original principal amount of $20,000,000, and (v) the
Revolving Promissory Note dated as of even date herewith made by Assignor
payable to the order of Compass in the original principal amount of $15,000,000
(collectively, the "Notes"), encumbering certain real property interests located
in Gwinnett County, Georgia, as more particularly described on attached Exhibit
A (the "Premises").
B. To further secure the payment, discharge and performance of the
Notes, and as a condition to Assignee's extension of credit to Assignor pursuant
to the Notes, Assignor has agreed to execute this Assignment for the purposes
set forth herein.
1
<PAGE> 3
NOW, THEREFORE, to further secure the payment, discharge and
performance of the indebtedness of Assignor to Assignee evidenced by the Notes
and in consideration of Assignee's acceptance of the Notes and in further
consideration of the sum of Ten Dollars ($10.00) paid by Assignee to Assignor,
receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee all of Assignor's right, title and interest in, to and under
any and all present and future leases of or in the Premises ("Leases") and any
and all rents, revenues, issues and profits (including Assignor's interest in
any security deposits relating thereto) arising out of or accruing from the
Leases whether now or hereafter due ("Rents"), said Leases and Rents being
deemed part of the security for the indebtedness herein mentioned and are
encumbered, transferred and conveyed by this Assignment, and in furtherance
thereof, does hereby covenant and agree with Assignee as follows:
1. Assignor will notify Assignee in writing (but without any right
of approval or denial on the part of Assignee) of any termination, substitution
or material modification of any Leases involving 10,000 or more Koger Net Square
Feet (as defined in the Loan Agreement).
2. Assignor will, at its cost and expense, observe, perform and
discharge, or cause to be observed, performed and discharged, all of the
obligations and undertakings of Assignor or its agents under the Leases, and
will use its reasonable best efforts in the exercise of sound business judgment
to enforce or secure, or cause to be enforced or secured, the performance of
each and every obligation and undertaking of the respective tenants under the
Leases, and will appear in and defend, at its cost and expense, any action or
proceeding arising under or in any manner connected with the Leases or the
obligations and undertakings of any tenant thereunder. Assignor will not do or
permit to be done anything to impair the security hereof, including without
limitation the execution of any other assignment of Assignor's interest in the
Leases or the Rents, without Assignee's prior written consent.
3. This Assignment is intended to operate as an absolute and
immediate assignment of the Leases and the Rents; however, unless and until a
default occurs under the Notes, the Loan Agreement, the Deed to Secure Debt or
this Assignment, Assignor will have a license to collect the Rents as and when
the same become due and payable. Assignor hereby agrees that the respective
tenants under the Leases, upon notice from Assignee of the occurrence of a
default hereunder, will thereafter pay to Assignee the Rents due and to become
due under the Leases without any obligation to determine whether or not such a
default does in fact exist. Assignor, without written approval of Assignee, will
not collect or accept Rent for more than one (1) month in advance; provided,
however, Assignor may accept Rent two (2) months in advance if such Rent
accepted two (2) months in advance does not exceed five percent (5%) of the Rent
collected during the applicable month.
4. Upon payment in full of the principal sum and interest, of the
Notes, this Assignment shall become and be void and of no effect. Assignor
hereby authorizes and
2
<PAGE> 4
directs the lessees named in said Leases or any other or future lessees or
occupants of the Premises described therein or in the Deed to Secure Debt upon
receipt from the Assignee of written notice to the effect that Assignee is then
the holder of the Notes and the Deed to Secure Debt and that a default exists
thereunder or under the Assignment, to pay over to the Assignee all rents,
income, profits and revenues hereby assigned and to continue so to do until
otherwise notified by Assignee.
5. This Assignment of Leases and Rents as provided herein will not
be deemed or construed to constitute Assignee as a mortgagee in possession of
the Premises nor to obligate Assignee to take any action or to incur expenses or
perform or discharge any obligation, duty or liability of Assignor under any
Lease, or for the control, care, management, or repair of the Premises; nor will
it operate to make Assignee, except in the event of Assignee's negligence,
recklessness or wilful misconduct, responsible or liable for any waste committed
on the Premises by the tenants or any other parties or for any dangerous or
defective condition of the Premises, or for any act or omission relating to the
management, upkeep, repair, or control of the Premises that results in loss or
injury or death to any person. Except in the event of Assignee's negligence,
recklessness or wilful misconduct, Assignee will not be liable for any loss
sustained by Assignor resulting from Assignee's failure to lease the Premises
after default or from any other act or omission of Assignee in managing the
Premises after default. Assignor will and does hereby indemnify and agree to
hold harmless Assignee from and against any and all liability, loss, cost,
damage or expense which may be incurred under the Leases or by reason of this
Assignment of Leases (except as a result of Assignee's gross negligence or
wilful misconduct) and, to the extent that a claim is made against Assignee
prior to the time Assignee takes possession of the Premises, from any and all
claims and demands whatsoever which may be asserted against Assignee by reason
of any alleged obligations or undertakings on its part to perform or discharge
any of the terms, covenants, or agreements contained in the Leases. Should
Assignee incur any such liability under the Leases or by reason of this
Assignment of Leases and Rents or in defense of any such claims or demands, the
amount thereof, including costs, expenses, and reasonable attorneys' and
paralegals' fees and costs, will be secured hereby and Assignor will reimburse
Assignee therefor immediately upon demand and upon the failure of Assignor so to
do, Assignee may, at its option, declare all sums secured hereby immediately due
and payable, or may charge the costs thereof to Assignor as an advance under the
Notes and secured by this Assignment.
6. To the extent not so provided by applicable law, each Lease will
provide that, in the event of enforcement by Assignee of the remedies provided
for by law or by the Notes, the Deed to Secure Debt or this Assignment, the
lessee thereunder will, upon request of any person succeeding to the interest of
Assignor as a result of such enforcement, automatically become the lessee of
said successor in interest, without change in the terms or other provisions of
such Lease. Any such successor in interest will not be bound by any payment of
rent or additional rent made more than one (1) month or two (2) months in
advance (as applicable in accordance with Paragraph 3 above). The Leases are and
at all times shall be subject and subordinate in all respects to the Deed to
3
<PAGE> 5
Secure Debt, and to all renewals, modifications, amendments, consolidations,
replacements, refinancings and extensions of the Deed to Secure Debt, to the
full extent of all principal, interest and all other amounts secured thereby.
Provided that a tenant is not in default under its Lease, Assignee shall not
disturb the occupancy of such tenant under its Lease during the term of such
Lease, notwithstanding foreclosure of the Deed to Secure Debt, acceptance of a
deed in lieu of foreclosure or exercise of any other remedy provided in the Deed
to Secure Debt, or pursuant to the laws of the State of Georgia. If requested by
a tenant or Assignor under any of the Leases or upon Assignee's request,
Assignor and Assignee shall enter into a subordination, nondisturbance and
attornment agreement (reasonably acceptable in form and substance to Assignee)
with such tenant whereby Assignee will agree to not disturb the tenant in its
possession of the Premises provided such tenant is not in default under its
Lease and the tenant will agree to attorn to Assignee if Assignee takes
possession of the Premises.
7. Upon a default under the Notes, the Loan Agreement, the Deed to
Secure Debt or this Assignment, Assignee may at its option, without notice and
without regard to the adequacy of the security for the obligations set forth in
the Notes, either in person, by court appointed receiver or by agent, with or
without bringing any action or proceeding, demand and thereupon take possession
of the Premises, to have, hold, manage, lease and operate the same on such terms
and for such period of time as Assignee may deem proper, and either with or
without taking possession of the Premises in its own name, demand and receive
the Rents in the possession of Assignor at the time of Assignee's written demand
or collected thereafter, including those past due and unpaid, with full power to
make from time to time all alterations, renovations, repairs, or replacements
thereto or thereof as may seem proper to Assignee, and to apply such Rents to
the payment of: (a) all reasonable expenses of managing the Premises, including,
without limitation, the salaries, fees and wages of the managing agent and such
other employees as Assignee may deem necessary or desirable, all taxes, charges,
claims, assessments, liens, premiums for all insurance which Assignee may deem
necessary or desirable, costs of renovations, repairs, or replacements, and all
expenses incident to taking and retaining possession of the Premises and
protecting and preserving the same; or (b) the principal sum and interest
thereon of the Notes, together with all costs and attorneys' and paralegals'
fees and costs; all in such order or priority as Assignee in its sole discretion
may determine, any custom or use to the contrary notwithstanding.
8. This Assignment is made and accepted without prejudice to any of
the rights and remedies possessed by Assignee under the remaining terms and
conditions of the Notes, the Loan Agreement, or the Deed to Secure Debt, and the
right of Assignee to exercise its remedies under this Assignment may be
exercised by Assignee either prior to, simultaneously with, or subsequent to any
action taken by it under the remaining terms and conditions of the Notes, the
Loan Agreement, or the Deed to Secure Debt. Each and every right, remedy and
power granted to Assignee by this Assignment will be cumulative and in addition
to any other right, remedy and power given by the remaining terms and conditions
of the Notes, the Loan Agreement, the Deed to Secure Debt or this Assignment, or
now or hereafter existing in equity, at law or by virtue of statute or
otherwise. Nothing
4
<PAGE> 6
contained in this Assignment, and no act done or omitted by Assignee pursuant to
the powers and rights granted it hereunder, nor the failure of Assignee to avail
itself of any of the rights and remedies under this Assignment, will be
construed or deemed to be a waiver of any of Assignee's rights and remedies
under this Assignment, nor will such exercise or omission to exercise of the
powers and rights granted Assignee hereunder be deemed to constitute a waiver of
its rights and remedies under the remaining terms and conditions of the Notes,
the Loan Agreement, or the Deed to Secure Debt.
9. Assignee may take or release other security for the payment of
the indebtedness under the Notes and the Deed to Secure Debt, may release any
party primarily or secondarily liable therefor, and may apply any other security
held by it to the satisfaction of such indebtedness without prejudice to any of
its rights under this Assignment.
10. The term "Lease" or "Leases" as used herein, means said Leases
hereby assigned or any extension or renewal thereof, and any leases subsequently
executed during the term of this Assignment covering the Premises or any part
thereof. At Assignee's request, Assignor will assign and transfer to Assignee
any and all subsequent leases upon all or any part of the Premises and to
execute and deliver at the request of Assignee all such further assurances and
assignments in the Premises as Assignee will require from time to time in its
sole discretion.
11. This Assignment, together with the covenants and warranties
therein contained, shall inure to the benefit of Assignee and any subsequent
holder of the Notes and the Deed to Secure Debt shall be binding upon Assignor,
their successors, executors, personal representatives, and assigns, and any
subsequent owner of the Premises.
12. This Assignment shall expire and terminate upon the payment in
full of the Notes and any other Indebtedness secured by the Deed to Secure Debt
and any cancellation, satisfaction or release of the Deed to Secure Debt shall
constitute a cancellation, satisfaction, or release of this Assignment. In the
event that a specific property is released from the lien of the Deed to Secure
Debt, then such property and the Leases relating to it shall, effective with the
release, also be released from this Assignment.
13. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ASSIGNOR, THE ASSIGNEE, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THIS ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE
KNOWINGLY,
5
<PAGE> 7
VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT FOR THE
LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE SUBJECT TO NO EXCEPTIONS.
6
<PAGE> 8
IN WITNESS WHEREOF, Assignor has executed this Assignment under seal
the day and year first above written.
Signed, sealed and delivered in ASSIGNOR:
the presence of:
KOGER EQUITY, INC.,
a Florida corporation
/s/ Alan C. Sheppard, Jr.
- ----------------------------------------
Unofficial Witness Alan C. Sheppard, Jr. By: /s/ G. Danny Edwards
---------------------- ----------------------------
Name: G. Danny Edwards
--------------------------
Title: Treasurer
-------------------------
Attest: /s/ W. Lawrence Jenkins
------------------------
Name: W. Lawrence Jenkins
--------------------------
Title: Corporate Secretary
-------------------------
[AFFIX CORPORATE SEAL]
/s/ Dee Price
- ----------------------------------------
Notary Public
My Commission Expires: February 1, 1999
Notary Public, Camden County, Georgia
- ----------------------------------------
[Notary Seal]
7
<PAGE> 9
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
8
<PAGE> 1
EXHIBIT 10(k)(4)(b)(iii)
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
THIS ENVIRONMENTAL INDEMNIFICATION AGREEMENT (this "Agreement") is made
and executed as of this 30th day of December, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("FUNB"), for the
Lenders (as such term is defined in the Loan Agreement, as hereinafter defined)
(FUNB and such Lenders are collectively referred to herein as the "Lenders"),
whose address is 301 South College Street, Charlotte, North Carolina 28288
Attention: First Union Capital Markets Group, which terms Borrower and Lenders,
whenever hereinafter used will be construed to refer to and include the heirs,
legal representatives, executors, administrators, successors and assigns of said
parties.
R E C I T A L S :
A. Borrower has obtained financing from Lenders pursuant to that
certain Second Amended and Restated Revolving Credit Loan Agreement dated as of
even date herewith (hereinafter, together with any and all extensions, renewals,
modifications, replacements and substitutions thereof, referred to as the "Loan
Agreement") and those certain Substitution Revolving Promissory Notes and
Revolving Promissory Notes dated as of even date herewith (hereinafter, together
with any and all extensions, renewals, modifications, replacements and
substitutions thereof, referred to as the "Loan").
B. Borrower's obligations under the Loan are secured in part by a Deed
to Secure Debt, Assignment of Leases and Rents and Security Agreement in favor
of Lenders (the "Deed to Secure Debt") encumbering real property located in
Gwinnett County, Georgia, and being more particularly described on attached
Exhibit A (the "Property").
C. As a condition precedent to and as a material inducement for
Lenders' agreement to provide the Loan to Borrower, Lenders have required
Borrower to execute and deliver this Agreement, it being acknowledged and
understood by Borrower that Lenders otherwise are not willing to make or provide
the Loan.
D. Borrower has obtained a Phase I Environmental Site Assessment dated
December 4, 1998, prepared by Turner Hart & Hickman, P.C. (the "Environmental
1
<PAGE> 3
Assessment"), and has delivered a copy of the same to Lenders. Lenders intend to
rely on the Environmental Assessment in making the Loan.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and as a material inducement to Lenders to make
or provide the Loan to Borrower, Borrower hereby covenants and agrees with
Lenders as follows:
1. Definitions. The following terms as used in this Agreement will
have the meanings set forth below:
(a) "Hazardous Substances" will mean any hazardous or toxic substances,
materials or wastes, including without limitation any flammable explosives,
radioactive materials, friable asbestos, kepone, polychlorinated biphenyls
(PCB's), electrical transformers, batteries, paints, solvents, chemicals,
petroleum products, or other man-made materials with hazardous, carcinogenic or
toxic characteristics, and such other solid, semi-solid, liquid or gaseous
substances which are radioactive, toxic, ignitable, corrosive, carcinogenic to
human health, those substances, materials, and wastes listed in the United
States Department of Transportation Table (49 CFR 972.101) or by the
Environmental Protection Agency, as hazardous substances (40 CFR Part 302, and
amendments thereto) provided all such substances, materials and wastes are or
become regulated under applicable local, state or federal law relating to (i)
petroleum, (ii) asbestos, (iii) PCB's, or (iv) materials designated as a
"hazardous substance," "hazardous waste," "hazardous materials," "toxic
substances," "contaminants," in each case under any applicable Environmental
Laws.
(b) "Environmental Laws" will mean any applicable present or future
federal, state or local laws, ordinances, rules or regulations pertaining to
Hazardous Substances, including without limitation the following statutes and
regulations, as amended from time to time: (i) the Federal Clean Air Act, 42
U.S.C. Section 7401 et seq.; (ii) the Federal Clean Water Act, 33 U.S.C. Section
1151 et seq.; (iii) the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq. ("RCRA"); (iv) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
("CERCLA") and the Superfund Amendments and Reauthorization Act of 1986, Pub. L.
No. 99-499, 100 Stat. 1613 ("SARA"); (v) the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1802; (vi) the National Environment Policy Act, 42 U.S.C.
Section 1857 et seq.; (vii) The Toxic Substance Control Act of 1976, 15 U.S.C.
Section 2601 et seq.; (viii) applicable regulations of the Environmental
Protection Agency, 33 CFR and 40 CFR relating to hazardous substances; and (ix)
and similar statutes, rules and regulations under the laws of the State of
Georgia.
(c) "Hazardous Condition" will mean the presence, discharge, disposal,
storage or release of any Hazardous Substance, in violation of any Environmental
Laws, on or in
2
<PAGE> 4
the improvements, air, soil, groundwater, surface water or soil vapor on or
about the Property, or that migrates, flows, percolates, diffuses or in any way
moves onto or into the improvements, air, soil, groundwater, surface water or
soil vapor on or about the Property, or from the Property into adjacent
property.
(d) "Claims" will mean, individually and collectively, any claims,
actions, administrative proceedings, judgments, damages, punitive damages,
penalties, fines, costs, liabilities, sums paid in settlement, interest, losses
or expenses (including reasonable attorneys' and paralegals' fees and costs,
whether incurred in enforcing this Agreement, collecting any sums due hereunder,
settlement negotiations, at trial or on appeal), reasonable consultant fees and
reasonable expert fees, together with all other reasonable costs and expenses of
any kind or nature, that arise directly from or in connection with the existence
of a Hazardous Condition, whether occurring before, on or after the date of this
Agreement or caused by any person or entity.
Without limiting the generality of the foregoing definition, Claims
specifically will include claims, whether by related or third parties, for
personal injury or real or personal property damage, and capital, operating and
maintenance costs incurred in connection with any Remedial Work.
However, notwithstanding the foregoing, Claims will not be deemed to
include claims, actions, administrative proceedings, judgments, damages,
punitive damages, penalties, fines, costs, liabilities, sums paid in settlement,
interest, losses or expenses, that arise in connection with any Hazardous
Condition that is determined by proper judicial or administrative procedure to
have been introduced to the Property from and after the date upon which Lenders
take possession of the Property pursuant to an Order of Receivership,
foreclosure or deed in lieu of foreclosure, or which is caused by the actions of
Lenders.
(e) "Remedial Work" will mean any investigation or monitoring of site
conditions, any clean-up, containment, remediation, removal or restoration work
required or performed by any federal, state or local governmental agency or
political subdivision or performed by any nongovernmental entity or person due
to the existence of a Hazardous Condition.
2. Compliance with Environmental Laws; Disclosure of Hazardous
Conditions. Except as to those conditions (the "Existing Conditions") as
specifically may be disclosed in the Environmental Assessment, Borrower hereby
represents, warrants, covenants and agrees in all material respects to and with
Lenders that all operations or activities upon, or any use or occupancy of the
Property by Borrower, any tenant or other occupant, to the best of Borrower's
knowledge, is presently and will at all times until Borrower's conveyance of the
Property or foreclosure of Deed to Secure Debt be in compliance with all
Environmental Laws; that Borrower has not at any time engaged in or permitted,
nor has any existing or previous tenant or occupant of the Property engaged in
or permitted to the best of Borrower's knowledge the occurrence of any Hazardous
Condition, except as
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<PAGE> 5
specifically may be disclosed in the Environmental Assessment; and that to the
best of Borrower's knowledge, there does not now exist nor is there suspected to
exist any Hazardous Condition on or about the Property, except as specifically
may be disclosed in the Environmental Assessment.
3. Indemnification. Borrower hereby indemnifies and agrees to protect,
defend and hold Lenders harmless, which for purposes of this paragraph will be
deemed to include the directors, officers, shareholders, employees and agents of
Lenders, from and against any Claims other than claims arising from Lenders' or
such other included parties' gross negligence or willful misconduct, including,
without limitation, any claims relating to an Existing Condition. In the event
that Lenders suffer or incur any Claims, Borrower will pay to Lenders the total
of all such Claims suffered or incurred by Lenders upon demand therefor by
Lenders.
4. Remedial Work. In the event that any Remedial Work with respect to
any Hazardous Conditions that could result in a Claim is required under any
Environmental Laws by any judicial order, or by any governmental entity, or in
order to comply with the terms, covenants and conditions of this Agreement or of
any other agreements affecting the Property, Borrower will perform or cause to
be performed the Remedial Work in compliance with such law, regulation, order or
agreement. All Remedial Work will be performed by one or more contractors,
selected by Borrower and under the supervision of a consulting environmental
engineer selected by Borrower, and approved in advance by Lenders. All costs and
expenses of Remedial Work will be paid by Borrower including without limitation
the charges of such contractor(s) and the consulting environmental engineer, and
Lenders' reasonable attorneys' and paralegals' fees and costs incurred in
connection with monitoring or review of all Remedial Work. In the event that
Borrower fails to timely commence, or cause to be commenced, or fails to
diligently prosecute to completion, such Remedial Work, Lenders may, but will
not be required or have any obligation to, cause such Remedial Work to be
performed, and all costs and expenses thereof, or incurred in connection
therewith, will thereupon constitute Claims. All such Claims will be due and
payable by Borrower upon demand therefor by Lenders.
5. Permitted Contests. Notwithstanding any provision of this Agreement
to the contrary, provided that (i) no default has occurred and is continuing
under the Loan Agreement, (ii) no Lenders nor any assignee of any Lenders'
interest (including any person having a beneficial interest) in the Property,
the Loan and the Loan Documents will be exposed or subjected to civil or
criminal liability, and (iii) the lien and security interest of Lenders or any
such assignee in the Property, the Loan, the Loan Documents, or the payment of
any sums to be paid under the Loan Documents, is not jeopardized or in any way
adversely affected, Borrower may contest or cause to be contested, by
appropriate action, the application, interpretation or validity of any
Environmental Laws or any agreement requiring any Remedial Work pursuant to a
good faith dispute regarding such application, interpretation or validity of
such Environmental Laws or agreement requiring
4
<PAGE> 6
such Remedial Work. During the pendency of any such permitted contest, Borrower
may delay performance of Remedial Work or compliance with the Environmental Laws
or agreement requiring such Remedial Work, provided that (i) Borrower actually
contests and prosecutes such contest by appropriate proceedings conducted in
good faith and with due diligence to resolution, (ii) prior to any such delay in
compliance with any Environmental Laws or any Remedial Work requirement on the
basis of a good faith contest of such requirement, Borrower will have given
Lenders written notice that Borrower intends to contest or will contest or cause
to be contested the same, and will have given such security or assurances as
Lenders reasonably may request to ensure compliance with the legal requirements
pertaining to the Remedial Work (and payment of all costs, expenses, interest
and penalties in connection therewith) and to prevent any sale, forfeiture or
loss of all or any part of the Property by reason of such noncompliance, delay
or contest, and (iii) prior to any such delay in compliance with any
Environmental Laws or any Remedial Work requirement on the basis of a good faith
contest of such requirement, Borrower will have taken such steps as may be
necessary to prevent or mitigate any continuing occurrence of any existing or
suspected Hazardous Condition giving rise to the contested Remedial Work
requirement. Subject to the terms and conditions set forth above, during the
pendency of any such permitted contest resulting in a delay of performance of
any required Remedial Work, Lenders agree that it will not perform such Remedial
Work requirement on behalf of Borrower.
6. Subrogation of Indemnity Rights. If Borrower fails to perform its
obligations under paragraphs 3 and 4 above, Lenders will be subrogated to any
rights Borrower may have under any indemnifications from any present, future or
former owners, tenants or other occupants or users of the Property relating to
the matters covered by this Agreement.
7. Assignment by Lenders. No consent by Borrower will be required for
any assignment or reassignment of the rights of Lenders hereunder to one or more
purchasers of the Loan, the Loan Documents or Lenders' interest in the Property
under the Deed to Secure Debt.
8. Merger, Consolidation or Sale of Assets. Subject to limitations
regarding disposition of any interest or control in Borrower as may be set forth
in the Loan Documents, in the event of a disposition involving Borrower or all
or a substantial portion of the assets of Borrower to one or more persons or
other entities or the merger or consolidation of Borrower with another entity,
the surviving entity or transferee of assets, as the case may be, will (i) be
formed and existing under the laws of a state, district or commonwealth of the
United States of America, and (ii) deliver to Lenders an acknowledged instrument
in recordable form assuming all obligations, covenants and responsibilities of
Borrower under this Agreement.
9. Survival; Independent Obligations. Notwithstanding anything to the
contrary contained in the Loan Agreement, the obligations of Borrower under this
Agreement will
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<PAGE> 7
survive (a) the consummation of the Loan transaction described above; (b)
satisfaction of all terms and conditions to be performed by or on behalf of
Borrower under the Loan Agreement; (c) termination, in accordance with their
respective terms, of the Loan transaction and the Loan Agreement; (d) any
assumption of Borrower's obligations under the Loan Agreement by a successor to
Borrower (whether or not Lenders approved such assumption and whether or not
Borrower was released from liability under the Loan Agreement); (e) conveyance
of title to all or any portion of the Property to any third party, and
subsequent reconveyance of all or any portion of the Property by any such third
party to subsequent transferees; and (f) conveyance of title to the Property to
Lenders through power of sale, process of foreclosure, or by conveyance in lieu
of foreclosure of the Deed to Secure Debt; provided, however, that Borrower will
not be liable for damages resulting from Hazardous Conditions which are
determined either by a written agreement or stipulation between Borrower and
Lenders or, if Borrower and Lenders are unable to agree or stipulate, a final
judicial or administrative action (after all available appeals have been taken
or waived) to have been introduced to the Property from and after the date upon
which Lenders take possession of the Property pursuant to an Order of
Receivership, power of sale, process of foreclosure, or deed in lieu of
foreclosure; provided, however, that the obligations of Borrower under this
Agreement will finally cease and terminate upon the final expiration of any
applicable statute of limitation of actions as to any potential Claim.
The obligations of Borrower under this Agreement are separate and
distinct from the obligations of Borrower under the Loan Agreement. This
Agreement may be enforced by Lenders without regard to any other rights and
remedies Lenders may have against Borrower under the Loan Agreement and without
regard to any limitations on Lenders' recourse as may be provided in the Loan
Agreement; provided, however, that a default by Borrower under this Agreement
will constitute a default under the Loan Agreement. Enforcement of this
Agreement will not be deemed to constitute an action for recovery of Borrower's
indebtedness under the Loan Agreement nor for recovery of a deficiency judgment
against Borrower following exercise of Borrower's remedies under the Deed to
Secure Debt. Borrower expressly and specifically agrees that Lenders may bring
and prosecute a separate action or actions against Borrower hereunder whether or
not Lenders have brought an action against Borrower under the Loan Agreement.
10. Default Interest. Any Claims and other payments required to be paid
by Borrower to Lenders under this Agreement which are not paid on demand
therefor will thereupon be considered "Delinquent," and will result in and
constitute a default hereunder. In addition to all other rights and remedies of
Lenders against Borrower as provided herein, or under applicable law, Borrower
will pay to Lenders, immediately upon demand therefor, Default Interest (as
defined below) on any such payments which are or have become Delinquent. Default
Interest will be paid by Borrower from the date such payment becomes Delinquent
through and including the date of payment of such Delinquent sums. As used
herein, "Default Interest" will be equal to the rate of interest charged for a
payment default
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<PAGE> 8
under the Loan Agreement, but in any event not to exceed the maximum rate of
interest permitted to be contracted for under Georgia law. Borrower expressly
and specifically agrees that any Default Interest charged to Borrower hereunder
will in no manner or respect constitute a penalty or interest under the Loan
Agreement, with the express understanding that this Agreement and Borrower's
obligations hereunder constitute separate obligations of Borrower independent of
the Loan Agreement.
11. Administrative Agent for Lenders. The Lenders have appointed FUNB
to act as administrative agent on behalf of all of the Lenders in connection
with the Loan. Accordingly, FUNB shall be entitled to exercise the rights and
remedies of the Lenders hereunder as agent for each of the Lenders. Any notice
provided by FUNB to the Borrower shall be deemed provided to Borrower by each of
the Lenders, and any notice from Borrower which states it is to FUNB as agent
for the Lenders hereunder, shall be deemed to be given to each of the Lenders.
12. Miscellaneous. If there is more than one party executing this
Agreement as an indemnitor, each such party agrees that (i) the obligations of
Borrower hereunder are joint and several, (ii) a release of any one or more such
parties or any limitation of this Agreement in favor of or for the benefit of
one or more such parties will not in any way be deemed a release of or
limitation in favor of or for the benefit of any other party, and (iii) a
separate action hereunder may be brought and prosecuted against one or more such
parties. If any term of this Agreement or any application thereof will be
invalid, illegal or unenforceable, the remainder of this Agreement and any other
application of such term will not be affected thereby. No delay or omission in
exercising any right hereunder will operate as a waiver of such right or any
other right. This Agreement will be binding upon, inure to the benefit of and be
enforceable by Borrower and Lenders, and their respective successors and
assigns. This Agreement will be governed and construed in accordance with the
laws of the State of Georgia. The parties hereby stipulate that jurisdiction and
venue for purposes of enforcement of this Agreement and adjudication of the
respective rights and obligations of the parties shall be in the Georgia circuit
court in the judicial circuit in which the Property is located.
13. Conflict. In the event of conflict between the terms and conditions
hereunder and the terms and conditions of the Loan Agreement, the terms and
conditions of the Loan Agreement will govern.
14. Waiver of Defenses. In any action, suit or proceeding relating to
this Agreement, Borrower and Lenders waive the right to interpose a defense of
laches, failure of consideration or mutuality of remedy.
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IN WITNESS WHEREOF, Borrower and Lenders have executed this Agreement
as of the date first above written.
BORROWER:
Signed, sealed and delivered KOGER EQUITY, INC., a Florida
in the presence of: corporation
/s/ Janice R. Long
/s/ Dee Price By: /s/ G. Danny Edwards
- --------------------------------------- ----------------------------
Witness Name: G. Danny Edwards
--------------------------
Title: Treasurer
-------------------------
Attest: /s/ W. Lawrence Jenkins
------------------------
Name: W. Lawrence Jenkins
--------------------------
/s/ Dee Price Title: Corporate Secretary
- --------------------------------------- -------------------------
Notary Public
[CORPORATE SEAL]
My Commission Expires: February 1, 1999
Notary Public, Camden County, Georgia
- ---------------------------------------
[NOTARY SEAL]
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<PAGE> 10
LENDER:
Signed, sealed and delivered
in the presence of: FIRST UNION NATIONAL BANK, a
national association, as Agent
/s/ Alan C. Sheppard, Jr.
- ---------------------------------------
Witness Alan C. Sheppard, Jr. By: /s/ Andrew J. Hogshead
--------------------------
Name: J. Andrew Hogshead
------------------------
Title: Vice President
-----------------------
Attest:/s/ Lynn Vermilva
----------------------
/s/ Alan C. Sheppard, Jr. Name: Lynn Vermilva
- --------------------------------------- -----------------------
Notary Public Alan C. Sheppard, Jr. Title: Vice President
-----------------------
My Commission Expires: Sept. 3, 2000 [CORPORATE SEAL]
My Commission # CC 578946
Bonded Thru Notary Public Underwriters
- ---------------------------------------
[NOTARY SEAL]
9
<PAGE> 11
EXHIBIT A
DESCRIPTION OF PROPERTY
<PAGE> 1
THIS INSTRUMENT PREPARED BY, EXHIBIT 10(k)(5)(a)(i)
AND FOLLOWING RECORDING RETURN TO:
Alan C. Sheppard, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, Florida 32202
SECOND AMENDED AND RESTATED
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
FROM
KOGER EQUITY, INC.
TO
TRESTE, INC.,
AS TRUSTEE
Dated as of December 30, 1998
State: North Carolina
Section:
Township:
Range:
County: Guilford
Tax I.D.:
<PAGE> 2
SECOND AMENDED AND RESTATED
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
THIS SECOND AMENDED AND RESTATED DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT (this "Indenture"), dated as of December 30,
1998, from
KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose mailing address is
8880 Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to
TRESTE, INC., a Virginia corporation authorized to do business in North Carolina
("Trustee") having an address c/o First Union National Bank, a national
association, 301 South College Street, Charlotte, North Carolina 28288, as
trustee for the benefit of FIRST UNION NATIONAL BANK, a national association, as
Agent (the "Beneficiary") on behalf of the Lenders under and as defined in that
certain Second Amended and Restated Revolving Credit Loan Agreement dated as of
even date herewith (hereinafter, together with any and all extensions, renewals,
modifications, replacements and substitutions thereof, referred to as the "Loan
Agreement"). For purposes of notices permitted or required to be given
hereunder, the Beneficiary's mailing address is One First Union Center, 301
South College Street, Charlotte, North Carolina 28288 Attention: First Union
Capital Markets Group.
Capitalized terms not otherwise defined herein are defined in Article I.
This Indenture amends and restates that certain Amended and Restated Deed of
Trust and Security Agreement (the "Prior Indenture") recorded in Official
Records Book 4630, Page 099, of the public records of Guilford County, North
Carolina, which Prior Indenture was assigned to Beneficiary, pursuant to that
certain Assignment of Deed of Trust and Related Loan Documents of even date
herewith to be recorded in the public records of Guilford County, North Carolina
(the "Assignment").
W I T N E S S E T H :
THIS INDENTURE WITNESSETH, that to secure (A) the payment, performance
and observance of all obligations of Borrower and all indebtedness heretofore or
hereafter from time to time advanced under the Loan Agreement and the payment of
any and all other indebtedness which this Indenture by its terms secures
including, without limitation, the payment of principal and interest on the
Notes which shall (1) be payable to each of the Lenders, (2) be payable in full
not later than December 30, 2001, and (3) bear interest at a floating rate as
set forth in Section 2.6 of the Loan Agreement; provided, that the
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<PAGE> 4
maximum aggregate principal amount of indebtedness secured hereby, other than
for advances made pursuant to Article XXV, Paragraph 25 hereof, shall in no
event exceed $150,000,000.00 (the "Indebtedness") and (B) the performance of the
covenants and agreements contained herein and in the Loan Agreement, in
consideration of the aforesaid Indebtedness and the trust referred to and
created below, Borrower hereby irrevocably grants, bargains and sells, conveys,
transfers, assigns, sets over, hypothecates, pledges and grants to Trustee and
its successors and assigns IN TRUST WITH POWER OF SALE in and to all of
Borrower's right, title and interest in the following property and rights
whether now owned or hereafter acquired by Borrower (collectively, the
"Property"):
(i) the Land;
(ii) all buildings, structures and other improvements
presently situated or hereafter constructed on the Land (collectively, the
"Improvements");
(iii) all rights, privileges, tenements, hereditaments, rights
of way, easements, rights and appurtenances belonging to or in any way relating
to either the Land or the Improvements;
(iv) all fixtures, machinery, equipment and other personal
property of all types owned by Borrower now or hereafter affixed to and used in
connection with the operation of the Land and Improvements, together with all
additions and accessions thereto, substitutions therefor and replacements
(collectively, the "Fixtures");
(v) all awards or payments, including interest thereon,
which may heretofore and hereafter be made with respect to the Land, the
Improvements or the Fixtures, whether from the exercise of the right of eminent
domain (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of said right), or for a change of grade of any
street, or for any other injury to or decrease in the value of Borrower's
rights, title or interest in and to the Land, the Improvements or the Fixtures;
(vi) all leases and other agreements affecting the use,
enjoyment or occupancy of the Land, the Improvements or the Fixtures now or
hereafter entered into (the "Leases") and rents, revenues, issues and profits
from the Land, the Improvements or the Fixtures (the "Rents") and all proceeds
from the sale or other disposition of the Leases and the right to receive and
apply the Rents to the payment of the Indebtedness;
(vii) all proceeds of and any unearned premiums on any
insurance policies covering the Land, the Improvements or the Fixtures,
including, without limitation, the right to receive and apply the proceeds of
any insurance, judgments, or settlements made in lieu thereof, for damage to the
Land, the Improvements or the Fixtures; and
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<PAGE> 5
(viii) the right, in the name and on behalf of Borrower, to
appear in and defend any action or proceeding brought with respect to Borrower's
right, title or interest in and to the Land, the Improvements or the Fixtures
and to commence any action or proceeding to protect the interest of Beneficiary
in the Land, the Improvements or the Fixtures;
TO HAVE AND TO HOLD the Property unto Trustee and its successors and
assigns, forever; IN TRUST NEVERTHELESS to its own proper use and benefit
forever, upon the terms and trusts herein set forth for the benefit and security
of Beneficiary.
This Indenture is a deed of trust of real property and a security
agreement covering the Fixtures under the Uniform Commercial Code of the State.
Upon the occurrence of an Event of Default, Trustee and Beneficiary shall, in
addition to other rights and remedies granted to them, have all the rights
granted to secured parties pursuant to the Uniform Commercial Code of the State.
Borrower, for itself and for its successors and assigns, covenants and
agrees with Trustee and with Beneficiary as follows:
ARTICLE I
1. Definitions. As used in this Indenture, the following capitalized
terms have the respective meanings set after them, such definitions to be
applicable equally to the singular and plural forms of such terms:
"AmSouth" shall mean AmSouth Bank, a state banking corporation.
"Beneficiary" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Borrower" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Citizens" shall mean Citizens Bank of Rhode Island, a Rhode Island
financial institution.
"Compass" shall mean Compass Bank, an Alabama banking corporation.
"Default" shall mean any condition or event which constitutes or which
would constitute an Event of Default either with or without notice or lapse of
time, or both.
"Default Rate" shall have the meaning assigned to such term in the Loan
Agreement.
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<PAGE> 6
"Event of Default" shall have the meaning assigned to such term in
Article V of this Indenture.
"FUNB" shall mean First Union National Bank, a national association.
"Fixtures" shall have the meaning assigned to such term in clause (iv)
of the Granting Clause of this Indenture.
"GFB" shall mean Guaranty Federal Bank, F.S.B., a federal savings bank.
"Governmental Requirements" shall have the meaning assigned to such
term in the Loan Agreement.
"Impositions" shall mean, collectively, all taxes of every kind and
nature (including real and personal property, income withholding, profits and
gross receipts taxes), all charges for any easement or agreement maintained for
the benefit of any of the Property, all general and special assessments, levies,
permits, inspection and license fees, all water and sewer rents and other
utility charges, all ground rents, and all other public charges whether of a
like or different nature, even if unforeseen or extraordinary, imposed upon or
assessed against Borrower, Beneficiary or any portion of the Property as a
result of or arising in respect of the acquisition, occupancy, leasing, use or
possession thereof, or any activity conducted on the Property (including,
without limitation, any gross income tax, sales tax or excise tax levied by any
governmental body on or with respect to the Rents).
"Improvements" shall have the meaning assigned to such term in clause
(ii) of the Granting Clause of this Indenture.
"Indebtedness" shall have the meaning assigned to such term in the
Granting Clause of this Indenture.
"Indenture" shall mean this Second Amended and Restated Deed of Trust,
Assignment of Leases and Rents and Security Agreement.
"Land" shall mean those certain parcels of real property located in the
County of Guilford, State of North Carolina, as more particularly described on
Exhibit A attached hereto and incorporated herein.
"Leases" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"Lenders" shall mean FUNB, GFB, AmSouth, Citizens, and Compass, and any
other Lenders under the Credit Agreement from time to time.
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<PAGE> 7
"Loan Agreement" shall mean that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of December 30, 1998 between Borrower
and Beneficiary.
"Loan Documents" shall mean collectively, the Notes, the Loan
Agreement, this Indenture, and the Security Deeds, the Assignments of Leases,
the Assignments of Contracts, the Indemnification Agreements, as such terms are
defined in the Loan Agreement and any and all other loan documents executed in
connection with the Loan.
"Notes" shall mean collectively (i) the Substitution Revolving
Promissory Note dated as of even date herewith made by Borrower payable to the
order of FUNB in the principal amount of $45,000,000, (ii) the Substitution
Revolving Promissory Note dated as of even date herewith made by Borrower
payable to the order of AmSouth in the original principal amount of $35,000,000,
(iii) the Substitution Revolving Promissory Note dated as of even date herewith
made by Borrower payable to the order of GFB in the original principal amount of
$35,000,000, (iv) the Revolving Promissory Note dated as of even date herewith
made by Borrower payable to the order of Citizens in the original principal
amount of $20,000,000, and (v) the Revolving Promissory Note dated as of even
date herewith made by Borrower payable to the order of Compass in the original
principal amount of $15,000,000.
"Other Indenture" shall mean any mortgage, deed to secure debt, or deed
of trust given by Borrower to or in favor of Trustee or Beneficiary to secure
the Indebtedness, other than this Indenture.
"Permitted Encumbrances" shall mean those covenants, restrictions,
reservations, liens, conditions and easements listed as exceptions to title as
set forth on Exhibit B attached hereto and incorporated herein.
"Person" shall mean any corporation, natural person, joint venture,
partnership, business trust, joint stock company, trust, unincorporated
organization, government or any department, agency or political subdivision
thereof.
"Property" shall have the meaning assigned to such term in the Granting
Clause of this Indenture.
"Rents" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"State" shall mean the State of North Carolina.
"Taking" shall mean a taking or voluntary conveyance during the term
hereof of all or part of the Property, or any interest therein or right accruing
thereto or use thereof, as
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<PAGE> 8
the result of or in lieu or in anticipation of the exercise of the right of
condemnation or eminent domain.
"Trustee" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
ARTICLE II
2. Representations and Warranties. Borrower represents and warrants to
Trustee for the benefit of Beneficiary that (a) it has full power, authority and
legal right to execute and deliver this Indenture and to grant a first deed of
trust of the Property, (b) it holds good and marketable fee simple title to the
Land and good and marketable title to the balance of the Property, (c) this
Indenture constitutes a valid first deed of trust of the Property, subject to
the Permitted Encumbrances, and (d) the Leases are in full force and effect in
accordance with their respective terms, have not been canceled or modified, and
have not been assigned or encumbered except to Beneficiary pursuant to this
Indenture and the Loan Agreement, and, to the best of Borrower's knowledge, no
default exists under the Leases. Borrower, at its expense, will warrant to
Trustee and to Beneficiary and will defend its title to the Property and the
lien thereon created by this Indenture against all claims and demands, and will
maintain and preserve such lien so long as the Indebtedness secured by this
Indenture remains outstanding, subject, however, to the Permitted Encumbrances.
ARTICLE III
3. Affirmative Covenants. Until this Indenture and the lien created
hereby shall terminate in accordance with Article XIX, Borrower shall comply
with the following covenants:
(a) Recordation, Filing, Etc. At all times cause this Indenture and
each amendment or modification hereof or supplement hereto (and such financing
statements covering the Property under the Uniform Commercial Code as in effect
in the State as may be necessary or appropriate) to be recorded, registered and
filed and kept recorded, registered and filed in such manner and in such places
as appropriate, and comply with all applicable statutes and regulations, in
order to establish, preserve and protect the lien of this Indenture as a first
lien on the Property and the rights of Trustee and Beneficiary hereunder.
Borrower shall pay, or shall cause to be paid, all taxes, fees and other charges
incurred in connection with such recording, registration, filing and compliance.
(b) Maintenance and Repairs. Keep and maintain the Property in good
order, repair and operating condition (ordinary wear and tear excepted) and make
all repairs and replacements necessary to that end.
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(c) Payment of Impositions and Utility Charges. Pay all Impositions
while the same may be paid without fine, penalty, interest or additional cost,
unless the same shall be contested in good faith and by appropriate proceedings
by Borrower in the manner permitted by the Loan Agreement. Any Impositions which
are payable in installments may be paid in installments provided that the
Borrower is otherwise in compliance with the Loan Agreement. Upon the written
request of Beneficiary from time to time, Borrower will furnish to Beneficiary
official receipts or other satisfactory proof evidencing such payments. In
addition, Borrower will pay all utility charges as required by the Loan
Agreement. Borrower shall not be entitled to any credit on the Indebtedness, by
reason of the payment of any Imposition or utility charges or any part thereof.
(d) Compliance with Governmental Requirements. Promptly (i) comply with
all Governmental Requirements unless the same shall be contested in good faith
and by appropriate proceedings by Borrower in the manner permitted by the Loan
Agreement, and (ii) procure, maintain and comply with all licenses or other
authorizations required for any use of the Property then being made, and for the
proper erection, installation, operation, repair and maintenance of the
Improvement and the Fixtures, or any part of either thereof.
(e) Insurance. Maintain insurance of the types and in the amounts
required by, and otherwise complying with the Loan Agreement and promptly
deliver, or cause to be promptly delivered, to Beneficiary any certificates or
evidence of such insurance as required under the Loan Agreement.
(f) Damage, Destruction or Taking. In the event of any damage,
destruction or Taking affecting all or any portion of the Property, Borrower
shall give immediate written and oral notice thereof to Beneficiary and Trustee
and proceed in accordance with the terms of the Loan Agreement. In case of any
such material damage, destruction or Taking, Beneficiary shall be entitled to
hold all insurance proceeds, payments or awards on account thereof, to the same
extent Borrower would be entitled thereto under the Loan Agreement, and Borrower
hereby irrevocably assigns to Beneficiary all of its rights to any such
insurance proceeds, payments or awards. With respect to a Taking, and in
accordance with its obligations under the Loan Agreement, Borrower will file or
prosecute or will cause to be filed or prosecuted in good faith and with due
diligence what would otherwise be its claim for any such award or payment and
cause the same to be collected and paid over to Beneficiary. At the sole cost
and expense of Borrower, Beneficiary may elect to monitor or participate in, and
if reasonably necessary, may hire independent legal counsel to represent
Beneficiary in connection with, any claim or the claims payment process.
Borrower will pay or cause to be paid all costs and expenses reasonably incurred
in connection with any Taking and the seeking and obtaining of any award or
payment in respect thereof. Unless an Event of Default shall have occurred under
the Loan Agreement, all sums so received by Beneficiary shall be applied in
accordance with the provisions of the Loan Agreement.
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(g) Notification of Default, Etc. Promptly after obtaining knowledge
thereof, notify Trustee and Beneficiary of any Default hereunder or under the
Loan Agreement or of any action or proceeding materially and adversely affecting
the Property.
ARTICLE IV
4. Negative Covenants. Without the prior written consent of
Beneficiary, Borrower will not directly or indirectly create or permit to be
created or to remain and will discharge or will cause to be discharged any
mortgage, charge, lien or encumbrance on, or attachment or pledge of, or
conditional sale or other title retention agreement with respect to, the
Property or any part thereof, its interest or the interests of Trustee and
Beneficiary therein, or the Rents or other sums payable pursuant to the Leases,
except (i) this Indenture, (ii) the Permitted Encumbrances, (iii) easements,
restrictions, liens, charges and other encumbrances permitted by the Loan
Agreement, (iv) liens being contested in good faith and by appropriate
proceedings in the manner permitted by the Loan Agreement, and (v) liens arising
out of or created by any statute, the discharge of which cannot under the terms
of such statute at the particular time be effected by Borrower; provided,
however, that any such statutory liens will promptly be discharged as and when
such discharge is possible or permissible. Borrower shall have the right to
grant, without the prior consent of Beneficiary, any utility easement.
ARTICLE V
5. Events of Default. If any one or more of the following events
(individually, an "Event of Default") shall occur:
(a) non-payment, when due, of any sums which Borrower is obligated to
pay hereunder, under the Notes, or under the Loan Agreement continues unremedied
for a period of five (5) days after the date such payment is due; or
(b) failure of Borrower to keep in full force and effect its corporate
existence, rights, franchises and privileges, except as provided for in the Loan
Agreement; or
(c) if an Event of Default (as defined in the Loan Agreement) shall
have occurred under the Loan Agreement; or
(d) if any of the representations or warranties made by Borrower in any
document, instrument or certificate delivered in connection with the financing
of the Property by Borrower proves to be untrue in any material respect; or
(e) if a default shall have occurred under any Other Indenture and
shall be continuing beyond the applicable grace or cure period provided therein;
or
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(f) if Borrower shall (i) voluntarily be adjudicated a bankrupt or
insolvent, (ii) seek or consent to the appointment of a receiver or trustee for
itself or for any portion of the Property, (iii) file a petition seeking relief
under the bankruptcy or other similar laws of the United States, any state or
any jurisdiction, (iv) make a general assignment for the benefit of creditors,
or (v) be unable to pay its debts as they mature; or
(g) a court shall enter an order, judgment or decree appointing, with
the consent of Borrower, a receiver or trustee for it or for any of the Property
or approving a petition filed against Borrower which seeks relief under the
bankruptcy or other similar laws of the United States, any state or any
jurisdiction, and such order, judgment or decree shall remain in force,
undischarged or unstayed, sixty (60) days after it is entered; or
(h) the estate or interest of Borrower in any of the Property shall be
levied upon or attached in any proceeding and such estate or interest is about
to be sold or transferred or such process shall not be vacated or discharged
within fifteen (15) days after such levy or attachment;
(i) if Borrower sells, conveys or transfers, voluntarily or otherwise,
its interest in the Property without the prior written consent of Beneficiary;
or
(j) Any material provision of the Loan Documents relating to Trustee's
and Beneficiary's ability to realize on the Collateral following an Event of
Default shall for any reason cease to be valid and binding on Borrower, or
Borrower shall so state in writing.
then, in any such event, Trustee or Beneficiary may accelerate the Indebtedness
outstanding under this Indenture, and may take such other actions as may be
provided under the Loan Agreement, or at law or in equity.
ARTICLE VI
6. Assignment of Leases and Rents.
6.1. Assignment of Rents. As additional security hereunder, the
Borrower hereby grants, bargains, conveys, assigns, transfers and sets over, and
by these presents does grant, bargain, convey, assign, transfer and set over to
the Beneficiary, as well as the Trustee on behalf of the Beneficiary, all Rents,
if any; provided, however, that unless and until an Event of Default occurs, the
Borrower will have a license to collect and retain such Rents as and when, but
not before, the same shall become due and payable. Upon an Event of Default, the
Beneficiary shall be immediately entitled to and may collect such Rents. In
addition, upon an Event of Default, the Beneficiary, or the Trustee on the
Beneficiary's behalf, may at any time and without notice, either in person or by
agent or by receiver to be appointed by a court, enter and take possession of
the Property or any part thereof, and in its own name, sue for or otherwise
collect such Rents. The Borrower
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hereby agrees with the Beneficiary that other parties under the Leases may, upon
notice from the Beneficiary, or the Trustee acting on behalf of the Beneficiary,
on the occurrence of an Event of Default, thereafter pay directly to the
Beneficiary the Rents due and to become due under the Leases and attorn to all
other obligations thereunder, directly to the Beneficiary without any obligation
on their part to determine whether an Event of Default does, in fact, exist or
has, in fact, occurred. All Rents collected by the Trustee or the Beneficiary
shall be applied as provided in Article XII hereof; provided, however, that if
the costs and expenses and attorney's fees shall exceed the amount of the Rents
collected, the excess shall be added to the Indebtedness, shall bear interest at
the maximum rate allowable by law as provided herein, and shall be immediately
due and payable. The entering upon and taking possession of the Property, the
collection of Rents, if any, and the application thereof as aforesaid, shall not
cure or waive any Event of Default or notice of default, if any, hereunder, nor
invalidate any act done pursuant to such notice except to the extent that such
default is fully cured. Failure or discontinuance of the Trustee or the
Beneficiary at any time or from time to time, to collect said Rents, shall not
in any manner impair the subsequent enforcement by the Beneficiary, or the
Trustee on the Beneficiary's behalf, of the right, power and authority herein
conferred upon it. Nothing contained herein, nor the exercise of any right,
power or authority herein granted to the Beneficiary, or the Trustee on the
Beneficiary's behalf, shall be construed to be an affirmation by it of any
tenancy, lease or option, nor an assumption of liability under, nor the
subordination of the lien or charge of this Indenture, to any such tenancy,
lease or option.
ARTICLE VII
7. Remedies in Case of Event of Default.
7.1. Legal Proceedings and Foreclosure. If an Event of Default shall
have occurred, Trustee or Beneficiary may proceed by suit or suits at law or in
equity or by any other appropriate remedy to protect and enforce its rights
hereunder, whether for the specific performance of any covenant or agreement
contained herein, or for an injunction against the violation of any of the terms
hereof, or in aid of the exercise of any right, power or remedy available to it,
or to enforce the payment of the Indebtedness under the Loan Agreement, or to
foreclose the lien and security interest of this Indenture as against all or any
part of the Property and to have all or any part of the Property sold, in any
manner permitted by law, under the judgment or decree of a court or courts of
competent jurisdiction, or otherwise, and to pursue any other remedy available
to it. If Beneficiary proceeds to foreclose the lien of this Indenture, Trustee
shall have the statutory power of sale if permitted by applicable law. In the
event of any such suit or proceeding, Beneficiary and/or Trustee shall comply
with any local laws applicable to any such suits or proceedings. Any such suit
or proceeding instituted by Trustee shall be brought in its name as Trustee and
any recovery or judgment shall be for the benefit of Beneficiary. All costs and
expenses (including, without limitation, reasonable attorney's fees and
expenses) incurred by Trustee or Beneficiary in connection with any such suit or
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proceeding, together with interest thereon (to the extent permitted by law)
computed at the Default Rate from the date on which such costs or expenses are
incurred to the date of payment thereof, shall constitute additional
Indebtedness secured by this Indenture and shall be paid by Borrower to Trustee
or Beneficiary, as the case may be, on demand.
7.2. Power of Sale and Procedure. If an Event of Default shall have
occurred, Trustee, at Beneficiary's election, may sell or offer for sale the
Property in such portions, order and parcels as Beneficiary may determine, with
or without having first taken possession of same, to the highest bidder for cash
at public auction. In exercising such power of sale, Trustee shall give such
notice of hearing as to the commencement of the foreclosure proceedings and
shall obtain such findings or leave at court as may then be required by
applicable law and shall give such notice of such foreclosure sale and shall
advertise the time and place of such sale in such manner as may then be provided
by applicable law and shall comply in all respects with all laws applicable to
the institution, conduct, and completion of power of sale foreclosures. Such
sale shall be made in conformance with the laws of the State in which the
Property is located at the courthouse door of the county wherein the Property is
situated. All aspects of any power of sale foreclosure commenced by Trustee
hereunder shall be accomplished in such manner as permitted or required by State
law in existence on the date hereof relating to the sale of real estate and/or
relating to the sale of collateral after a default by a debtor, as the same may
be amended or supplemented, or by any subsequent laws relating to same. At any
such sale (i) whether made under the power herein contained, State law, any
other legal requirement or by virtue of any judicial proceeding or any other
legal right, remedy or recourse, it shall not be necessary for Trustee to have
physically present, or to have constructive possession of, the Property
(Borrower hereby covenanting and agreeing to deliver to Trustee any portion of
the Property not actually or constructively possessed by Trustee immediately
upon demand by Trustee) and the title to and right of possession of any such
property shall pass to the purchaser thereof as completely as if the same had
been actually present and delivered to such purchaser at such sale, and (ii) the
receipt of Trustee or of such other party or officer making the sale shall be a
sufficient discharge to the purchaser or purchasers for his or their purchase
money and no such purchaser or purchasers, or his or their assigns or personal
representatives, shall thereafter be obligated to see to the application of such
purchase money or be in any way answerable for any loss, misapplication or
non-application thereof.
7.3. Acceleration of Maturity. If an Event of Default shall have
occurred, Beneficiary may declare the entire outstanding Indebtedness under the
Loan Agreement, and all other sums secured hereby, to be due and payable
immediately, and upon such declaration, such Indebtedness and other sums shall
immediately become and be due and payable without demand or notice.
7.4. Leases. Trustee at the option of Beneficiary is authorized to
foreclose this Indenture subject to the rights of any tenants of the Property,
and the failure to make any
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such tenants parties defendant to any such foreclosure proceedings and to
foreclose their rights will not be, nor be asserted by Borrower to be, a defense
to any proceedings instituted by Trustee and/or Beneficiary to collect the sums
secured hereby or to collect any deficiency remaining unpaid after the
foreclosure sale of the Property.
7.5. Suits to Protect the Property. Beneficiary, or Trustee at
Beneficiary's election, shall have the power and authority to institute and
maintain any suits and proceedings as Beneficiary may deem advisable (a) to
prevent any impairment of the Property by any acts which may be unlawful or any
violation of this Indenture, (b) to preserve or protect its interest in the
Property, and (c) to restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order might impair the security hereunder or be
prejudicial to Beneficiary's interest.
7.6. Discontinuance of Proceedings; Position of Parties Restored. If
Beneficiary, or Trustee at Beneficiary's election, shall have proceeded to
enforce any right or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to Beneficiary, then and in
every such instance, Borrower and Beneficiary shall, except to the extent
modified by such proceedings, be restored to their former positions and rights
hereunder, and all rights, powers and remedies of Beneficiary shall continue as
if no such proceeding had occurred or had been taken.
7.7. Borrower to Pay the Indebtedness on Any Default in Payment;
Application of Monies by Beneficiary.
(a) If an Event of Default shall occur as a result of Borrower's
failure to pay any amount due under the Loan Agreement or this Indenture, then,
upon Beneficiary's demand, Borrower will pay to Beneficiary the whole amount due
and payable under the Loan Agreement and all other sums secured hereby. If
Borrower shall fail to pay the same forthwith upon such demand, Beneficiary, or
Trustee at Beneficiary's election, shall be entitled to sue for and to recover
judgment for the whole amount so due and unpaid together with costs and
expenses, including the reasonable compensation, expenses and disbursements of
Beneficiary's agents, attorneys and other representatives. Beneficiary shall be
entitled to sue and recover judgment as aforesaid either before, after or during
the pendency of any proceedings for the enforcement of this Indenture, and the
right of Beneficiary to recover such judgment shall not be affected by any
taking of possession or foreclosure sale hereunder, or by the exercise of any
other right, power or remedy for the enforcement of the terms of this Indenture,
or the foreclosure of the lien hereof.
(b) In case of a foreclosure sale of all or any part of the Property
and of the application of the proceeds of sale to the payment of the sums
secured hereby, Beneficiary
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shall be entitled to enforce payment of and to receive all amounts then
remaining due and unpaid and to recover judgment for any portion thereof
remaining unpaid, with interest.
(c) Borrower hereby agrees, to the extent permitted by law, that no
recovery of any such judgment by Beneficiary and no attachment or levy of any
execution upon any of the Property or any other property shall in any way affect
the lien of this Indenture upon the Property or any part thereof or any lien,
rights, powers or remedies of Beneficiary hereunder, but such lien, rights,
powers and remedies of Beneficiary hereunder shall continue unimpaired as
before.
ARTICLE VIII
8.1. Purchase of the Property by Beneficiary. Beneficiary may be a
purchaser of the Property or any part thereof or any interest therein at any
sale thereof, whether pursuant to foreclosure, power of sale or otherwise, and
may apply the Indebtedness secured hereby to the purchase price.
8.2. Title Upon Sale; Receipt a Sufficient Discharge to Purchaser.
After the occurrence of an Event of Default hereunder, and upon the sale of the
Property or any part thereof or any interest therein by Trustee or Beneficiary,
whether pursuant to foreclosure, power of sale or otherwise, the purchaser shall
acquire good title thereto, free of the lien of this Indenture and free of all
rights of redemption, whether statutory, equitable or otherwise, in Borrower to
the extent permitted by applicable law. The receipt of the officer making the
sale under judicial proceedings or of Trustee or Beneficiary shall be sufficient
discharge to the purchaser for the purchase money, and such purchaser shall not
be obligated to see to the application thereof. All occupants of the Property
sold or any part thereof shall become tenants at sufferance of the purchaser,
and as long as a tenant is not in default under its Lease, the purchaser will
not disturb the occupancy of such tenant of the Property during the term of its
Lease. It shall not be necessary for the purchaser at any such sale to bring any
action for possession to the Property purchased other than statutory action of
forcible detainer in any justice court having jurisdiction.
8.3. Application of Indebtedness Toward Purchase Price. If Beneficiary
purchases the Property pursuant to foreclosure, power of sale or otherwise, then
Beneficiary may, in lieu of cash, apply all or any portion of the sums due to
Beneficiary under the Loan Agreement and this Indenture or any other instrument
securing the Indebtedness, to the unpaid balance of the purchase price remaining
after payment of any portion of the purchase price required to be paid in cash,
and the costs and expenses of the sale, compensation and other charges relating
to the sale.
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ARTICLE IX
9. Waiver of Appraisement, Valuation, Etc. Borrower hereby waives, to
the full extent it may lawfully do so, the benefit of all appraisement,
valuation, stay, moratorium, exemption from execution, extension and redemption
laws now or hereafter in force and all rights of marshaling in the event of the
sale of the Property or any part thereof or any interest therein.
ARTICLE X
10. Appointment of Receiver. If an Event of Default shall have
occurred, Trustee and/or Beneficiary shall, as a matter of right and to the
fullest extent permitted by applicable law, be entitled, ex parte and without
notice, to the appointment of a receiver or receivers of the Property or any
part thereof, whether such receivership be incidental to a proposed sale thereof
or otherwise, and Borrower hereby consents to the appointment of such a receiver
or receivers and will not oppose any such appointment. The expenses, including
receiver's fees, attorney's fees, costs and agent's compensation, incurred
pursuant to the powers herein contained shall be secured by this Indenture.
ARTICLE XI
11. Possession, Management and Income. If an Event of Default shall
have occurred under this Indenture, Trustee or Beneficiary, without further
notice, may enter upon and take possession of the Property or any part thereof,
in any manner permitted by law, by reasonable force, summary proceedings,
ejectment or otherwise and may remove Borrower and all other Persons and any and
all property therefrom, and Trustee or Beneficiary may hold, operate and manage
the same, make all necessary or proper repairs, renewals, and replacements, and
useful alterations, additions, betterments and improvements thereto and thereon
as may seem advisable to either of them, and insure and reinsure the Property as
may seem advisable and to either of them, and may receive all earnings, income,
rents, issues and proceeds accruing with respect thereto. Any amounts so
received by Trustee or Beneficiary shall be applied (a) to pay (i) the expenses
of operating the Property and of all maintenance, repairs, renewals,
replacements, alterations, additions, betterments, improvements, taxes,
assessments, insurance premiums, reasonable compensation for the services of
Trustee and all attorneys, advisors, brokers, receivers, agents and other
employees engaged or employed by Trustee or Beneficiary and all other costs and
expenses of entering a bond and taking possession of and holding the Property,
and (ii) any lien prior to the lien of this Indenture which Beneficiary may
consider it necessary or desirable to discharge and then (b) in the manner
provided in Article XI of this Indenture. If an Event of Default shall have
occurred under the Loan Agreement or if the Loan Agreement shall be terminated,
all sums so received by Trustee or Beneficiary shall be applied in the manner
specified in Article XI of this Indenture.
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ARTICLE XII
12. Application of Proceeds. The proceeds of (a) the operation and
management of the Property pursuant to Article XI of this Indenture, and (b) any
sale of the Property or any interest therein, shall, unless otherwise provided
in the Loan Agreement, be applied as follows:
First: to the costs and expenses of the sale, reasonable attorneys'
fees and expenses, reasonable Trustee's fees and expenses, court costs, and any
other expenses or advances made or incurred in the protection of the rights of
Trustee and Beneficiary or in the pursuance of any remedies hereunder;
Second: to the fullest extent permitted by applicable law, to any lien
prior to the lien of this Indenture which Beneficiary may consider it necessary
or desirable to discharge;
Third: to any Indebtedness secured by this Indenture and at the time
due and payable (whether by acceleration or otherwise;
Fourth: to Beneficiary for payment of the Notes outstanding; and
Fifth: the balance, if any, to Borrower.
ARTICLE XIII
13. Remedies, Etc., Cumulative. Each legal, equitable or contractual
right, power or remedy of Trustee and Beneficiary now or hereafter provided
herein or by statute or otherwise shall be cumulative and concurrent and shall
be in addition to every other right, power and remedy, and the exercise or
beginning of the exercise by Trustee or Beneficiary of any one or more of such
rights, powers and remedies shall not preclude the simultaneous or later
exercise of any or all such other rights, powers and remedies.
ARTICLE XIV
14. No Waiver, Etc. No failure by Trustee or Beneficiary to insist upon
the strict performance of any term hereof or to exercise any right, power or
remedy consequent upon a breach hereof shall constitute a waiver of any such
term or of any such breach. No acceptance of the payment of any sums due under
this Indenture or under the Loan Agreement during the continuance of any Default
shall constitute a waiver thereof. No waiver of any breach shall affect or alter
this Indenture which shall continue in full force and effect with respect to any
other then existing or subsequent breach.
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ARTICLE XV
15. Trustee.
(a) All the rights, powers and remedies of Beneficiary hereunder may be
exercised by Trustee. Trustee shall not be under any obligation to exercise any
trust or power vested in him by this Indenture unless Beneficiary shall have
offered Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by Trustee in compliance herewith. Trustee
shall not be liable with respect to any action taken or omitted to be taken by
Trustee in accordance with the written directions of Beneficiary, except for
Trustee's own bad faith, willful misconduct or negligence. Trustee shall not be
required to ascertain or inquire as to the performance or observance of any of
the covenants or agreements of Borrower herein, and in the absence of written
notice from Borrower or Beneficiary stating that a Default has occurred and
specifying the same, Trustee may conclusively assume that no Default exists.
(b) Trustee may, with consent of Beneficiary, consult with counsel
(which may be counsel for Borrower) and the written advice or opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by him hereunder in good faith and in
accordance therewith.
(c) Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys.
(d) Any moneys received by Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
law.
(e) Beneficiary may, by instrument in writing, filed in the office or
offices where this Indenture has been recorded, and at any time or from time to
time, and without notice and without specifying any reason therefor, and without
applying to any court, remove Trustee and select a successor trustee or trustees
in the event of the death, removal, resignation, refusal to act, or inability to
act of Trustee or, in its sole discretion, for any reason whatsoever. Trustee so
ceasing to act shall duly assign, transfer and deliver any of the property and
monies held by such Trustee to the successor appointed in Trustee's place. All
powers, rights and duties and authority of Trustee shall thereupon become vested
in the successor. The successor shall not be required to give bond or make an
oath for the faithful performance of his duties unless required by Beneficiary.
(f) Trustee may resign by the giving of notice of such resignation in
writing to Beneficiary.
(g) If more than one Trustee is appointed under this Indenture, all
rights granted to and all powers conferred upon Trustee hereunder may be
exercised by both or either of Trustees.
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(h) All reasonable expenses, charges, counsel fees and other
disbursements incurred by Trustee in and about the administration of this
Indenture and executed in the performance of its duties and powers hereunder
shall be secured by this Indenture.
ARTICLE XVI
16. Right of Trustee or Beneficiary to Perform Covenants, Etc. If
Borrower shall fail to make any payment or perform any act required to be made
or performed hereunder and such failure shall not be cured within the applicable
grace period, if any, Trustee or Beneficiary, without notice to or demand upon
Borrower and without waiving or releasing any obligation or Default, may (but
shall be under no obligation to) at any time thereafter make such payment or
perform such act for the account and at the expense of Borrower and may enter
upon the Property or any part thereof for such purpose and take all such action
thereon as, in the opinion of Trustee or Beneficiary, may be necessary or
appropriate therefor. All sums so paid by Trustee or Beneficiary and all costs
and expenses (including, without limitation, attorneys' fees and expenses) so
incurred shall constitute additional Indebtedness secured by this Indenture and
shall be paid by Borrower to Trustee or Beneficiary on demand.
ARTICLE XVII
17. Certificate as to No Default, Etc.; Information. At any time and
from time to time, Borrower will deliver to Beneficiary, promptly upon request,
a certificate signed by a duly authorized officer of Borrower stating that, to
the best of the signer's knowledge after making due inquiry, there is no Default
hereunder, or if any such Default exists to his knowledge, specifying the nature
and period of existence thereof and what action Borrower is taking or proposes
to take with respect thereto. Borrower will also furnish promptly to
Beneficiary, such information with respect to the Property and the Leases as may
from time to time be requested.
ARTICLE XVIII
18. Additional Instruments. Borrower, at its expense, will execute,
acknowledge, secure and deliver all such instruments and take all such action as
Trustee or Beneficiary from time to time may reasonably request for the better
assuring of the Property, rights and obligations now or hereafter subjected to
the security of this Indenture or intended so to be.
ARTICLE XIX
19. Defeasance. This Indenture and the lien created hereby shall
terminate after the payment in full of (a) all the Indebtedness and (b) all
other sums secured hereby. Upon such termination, and upon surrender of this
Indenture for cancellation, Beneficiary shall
17
<PAGE> 20
release, without warranty, the Property then subject to the lien hereof to the
Persons entitled thereto. The recitals in any reconveyance executed under this
Indenture of any matters of fact shall be conclusive proof of the truthfulness
thereof. The grantee in such release may be described as "the person or persons
legally entitled thereto". Trustee and/or Beneficiary, at Borrower's expense,
shall execute and deliver such instruments of release, satisfaction and
termination in proper form for recording or filing, as may be appropriate to
evidence the release of (a) the Property from the lien created hereby, and (b)
any other security held by Trustee and/or Beneficiary and such satisfaction and
termination, and such instruments, when duly executed, recorded and filed, shall
conclusively evidence the release, satisfaction and termination of this
Indenture.
ARTICLE XX
20. Applicable Law; Severability.
(a) This Indenture shall be governed by and construed in accordance
with the laws of the State.
(b) All rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not violate any applicable
law, and are intended to be limited to the extent necessary so that they will
not render this Indenture invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law. If any term or provision of this
Indenture shall be held to be invalid, illegal or unenforceable, the validity of
the other terms and provisions hereof shall in no way be affected thereby.
ARTICLE XXI
21. Miscellaneous. This Indenture (a) may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought, and (b) shall be binding upon Borrower, its successors and assigns, and
all Persons claiming under or through Borrower or any such successor or assign,
and shall inure to the benefit of and be enforceable by Trustee and its
successors and Beneficiary and its successors and assigns. The headings in this
Indenture are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof. All agreements between Borrower and Beneficiary,
whether now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of demand or
acceleration of the maturity of any payments hereunder or under the Loan
Agreement or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to Beneficiary exceed the maximum amount permissible
under applicable law. If, in any circumstance whatsoever, interest would
otherwise be payable to Beneficiary in excess of the maximum lawful amount, and
if in any circumstance Beneficiary shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, and if
permitted by applicable law,
18
<PAGE> 21
an amount equal to any excessive interest shall be applied to the reduction of
advances under the Loan Agreement and not to the payment of interest, or if such
excessive interest exceeds the unpaid advances under the Loan Agreement, such
excess shall be refunded to Borrower. All interest paid or agreed to be paid to
Beneficiary shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full period until payment in full
of the principal so that the interest hereon for such full period shall not
exceed the maximum amount permitted by applicable law. This paragraph shall
control all agreements between Borrower and Beneficiary. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one and the same instrument. Portions of
the Property consist of goods which are, or are to become, fixtures relating to
the Land and Borrower expressly covenants and agrees that the filing of this
Indenture in the real estate records of the county where the Property is located
shall also operate from the time of filing therein as a financing statement
filed as a fixture filing in accordance with Article 9 of the State's Uniform
Commercial Code - Secured Transactions.
ARTICLE XXII
22. Change in Method of Taxation. In the event of the passage, after
the date of this Indenture, of any law changing in any way the laws now in force
for the taxation of mortgages or debts secured thereby, for state or local
purposes, or the operation of any such taxes so as to adversely affect the
interest of Beneficiary in the Property, this Indenture or the Loan Agreement,
Borrower shall, upon demand, bear and pay the full amount (or any partial
amount) requested by Beneficiary, of taxes resulting from such changes hereunder
without offset or credit against any other sums due under the Loan Agreement or
on the Notes.
ARTICLE XXIII
23. Trustee's Acceptance. Trustee accepts the trust created hereby when
this Indenture, duly executed and acknowledged, is made a public record in the
State and county where the Property is located, as provided by the laws of the
State.
ARTICLE XXIV
24. No Petition. Trustee and Beneficiary hereby covenant and agree that
they will not institute against, or join any Person in instituting against
Borrower, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law at any time other than on a date which is at least one
(1) year and one (1) day after the payment in full of the Notes; provided,
however, that nothing in this Article shall constitute a waiver of any right to
indemnification, reimbursement or other payment from Borrower pursuant to the
Loan Agreement.
19
<PAGE> 22
ARTICLE XXV
25. Indenture Secures Future Advances. This Indenture is given to
secure not only the amount initially secured by this Indenture, but also such
future advances, whether such advances are obligatory or are to be made at the
option of Trustee or Beneficiary, or otherwise, as are made within fifteen (15)
years from the date hereof, to the same extent as if such future advances were
made on the date of the execution of this Indenture. The total amount of
advances outstanding and presently secured hereby is Eighty-six Million Dollars
($86,000,000.00). The Loan Agreement currently provides Borrower with a
revolving line of credit up to $150,000,000.00. However, pursuant to Section
2.11 of the Loan Agreement, Borrower may request an increase to the Loan Amount
up to $200,000,000.00 upon approval of the Lenders as set forth therein. Any
such increase to the Loan Amount shall constitute a future advance and shall be
secured by this Indenture to the same extent as if such future advance was made
on the date of the execution of this Indenture. This Indenture secures a
revolving line of credit under which Advances may be made, repaid, and
reborrowed on a revolving basis as provided for in the Loan Agreement.
ARTICLE XXVI
26. Approval of Legal Description. Borrower has read and does hereby
approve the legal description of the Land which Is the subject hereof, as set
forth in Exhibit A attached hereto, and hereby indemnifies Trustee and
Beneficiary and their attorneys with respect to any liability which might arise
as a consequence of any error or omission therein.
ARTICLE XXVII
27. Loan Agreement. The terms, provisions, conditions, representations
and warranties and covenant of the Loan Agreement are incorporated herein by
reference. In the event of a conflict between this Indenture and the Loan
Agreement, the Loan Agreement shall control. The Loan Agreement contains
provisions permitting Borrower to obtain releases of portions of the Property
from this Indenture from time to time.
ARTICLE XXVIII
28. WAIVER OF JURY TRIAL. BORROWER, TRUSTEE, AND BENEFICIARY, BY THEIR
ACCEPTANCE HEREOF, EACH ACKNOWLEDGE AND AGREE THAT NEITHER BORROWER, TRUSTEE,
NOR BENEFICIARY, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF
ANY OF THE SAME, WILL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF
THIS DEED OF TRUST, THE NOTES, THE LOAN AGREEMENT OR THE LOAN DOCUMENTS, ANY
COLLATERAL, OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG BORROWER,
TRUSTEE OR BENEFICIARY RELATED
20
<PAGE> 23
THERETO. NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY
OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY BORROWER, TRUSTEE, AND BENEFICIARY, ARE
MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL
INDUCEMENT FOR TRUSTEE AND BENEFICIARY TO MAKE THE LOAN TO TRUSTOR, AND WILL BE
SUBJECT TO NO EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
21
<PAGE> 24
IN WITNESS WHEREOF, Borrower has caused this Indenture to be executed
and attested by its proper officers thereunto duly authorized, as of the day and
year first above written and has executed the same in order that this Indenture
may qualify as a financing statement under the Uniform Commercial Code of the
State as to such of the Property, if any, constitutes personalty.
KOGER EQUITY, INC.,
Attest: a Florida corporation
By:/s/ W. Lawrence Jenkins By:/s/ G. Danny Edwards
----------------------- -----------------------------
Name: W. Lawrence Jenkins Name: G. Danny Edwards
Its: Corporate Secretary Title: Treasurer
[AFFIX CORPORATE SEAL]
STATE OF Georgia:
COUNTY OF Camden:
I, Dee Price, a Notary Public of the County of Camden, State of
Georgia, do hereby certify that W. Lawrence Jenkins, personally appeared before
me this day and acknowledged that he/she is the Secretary of KOGER EQUITY, INC.,
a Florida corporation, and that by authority duly given and as an act of the
corporation, the foregoing instrument was signed in its name by its Treasurer,
sealed with its corporate seal, and attested by himself/ herself as its
Secretary.
Witness my hand and official seal this 30th day of December, 1998.
/s/ Dee Price
--------------------------------------
Notary Public Notary Public, Camden County, Georgia
My commission expires: February 1, 1999
[NOTARIAL SEAL]
22
<PAGE> 25
EXHIBIT A
The Land
<PAGE> 26
EXHIBIT B
Permitted Encumbrances
<PAGE> 1
THIS INSTRUMENT PREPARED BY EXHIBIT 10(k)(5)(a)(ii)
AND RECORD AND RETURN TO:
Alan C. Sheppard, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, FL 32202-3650
AMENDED AND RESTATED ASSIGNMENT OF LEASES AND RENTS
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
AMENDED AND RESTATED ASSIGNMENT OF LEASES AND RENTS
THIS AMENDED AND RESTATED ASSIGNMENT OF LEASES AND RENTS (this
"Assignment") is made and executed as of this 30th day of December, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Assignor"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Assignee") for the
Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement of even date herewith (the "Loan Agreement"),
whose address is 301 South College Street, Charlotte, North Carolina 28288
Attention: First Union Capital Markets Group. The terms Borrower and Lender,
whenever hereinafter used will be construed to refer to and include the heirs,
legal representatives, executors, administrators, successors and assigns of said
parties.
RECITALS:
A. Assignor is the mortgagor under that certain Second Amended and
Restated Deed of Trust, Assignment of Leases and Rents and Security Agreement
given by Assignor to Assignee dated of even date herewith and recorded or to be
recorded in the public records of Guilford County, North Carolina (the "Deed of
Trust"); securing the following Substitution Revolving Promissory Notes and
Revolving Promissory Notes: (i) Substitution Revolving Promissory Note dated as
of even date herewith made by Assignor payable to the order of FUNB in the
original principal amount of $45,000,000, (ii) the Substitution Revolving
Promissory Note dated as of even date herewith made by Assignor payable to the
order of AmSouth in the original principal amount of $35,000,000, (iii) the
Substitution Revolving Promissory Note dated as of even date herewith made by
Assignor payable to the order of GFB in the original principal amount of
$35,000,000, (iv) the Revolving Promissory Note dated as of even date herewith
made by Assignor payable to the order of Citizens in the original principal
amount of $20,000,000, and (v) the Revolving Promissory Note dated as of even
date herewith made by Assignor payable to the order of Compass in the original
principal amount of $15,000,000 (collectively, the "Notes", as such term is
defined in the Loan Agreement), encumbering certain real property interests
located in Guilford County, North Carolina, as more particularly described on
attached Exhibit A (the "Premises").
B. To further secure the payment, discharge and performance of the
Notes, and as a condition to Assignee's extension of credit to Assignor pursuant
to the Notes, Assignor has agreed to execute this Assignment for the purposes
set forth herein.
1
<PAGE> 3
C. This Assignment amends and restates that certain Assignment of
Leases and Rents recorded in Official Records Book 4630, Page 0144, of the
public records of Guilford County, North Carolina, which Assignment of Leases
and Rents was assigned to Assignee pursuant to that certain Assignment of Deed
of Trust and Related Loan Documents of even date herewith to be recorded in the
public records of Guilford County, North Carolina.
NOW, THEREFORE, to further secure the payment, discharge and
performance of the indebtedness of Assignor to Assignee evidenced by the Notes
and in consideration of Assignee's acceptance of the Notes and in further
consideration of the sum of Ten Dollars ($10.00) paid by Assignee to Assignor,
receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee all of Assignor's right, title and interest in, to and under
any and all present and future leases of or in the Premises ("Leases") and any
and all rents, revenues, issues and profits (including Assignor's interest in
any security deposits relating thereto) arising out of or accruing from the
Leases whether now or hereafter due ("Rents"), said Leases and Rents being
deemed part of the security for the indebtedness herein mentioned and are
encumbered, transferred and conveyed by this Assignment, and in furtherance
thereof, does hereby covenant and agree with Assignee as follows:
1. Assignor will notify Assignee in writing (but without any right of
approval or denial on the part of Assignee) of any termination, substitution or
material modification of any Leases involving 10,000 or more Koger Net Square
Feet (as defined in the Loan Agreement).
2. Assignor will, at its cost and expense, observe, perform and
discharge, or cause to be observed, performed and discharged, all of the
obligations and undertakings of Assignor or its agents under the Leases, and
will use its reasonable best efforts in the exercise of sound business judgment
to enforce or secure, or cause to be enforced or secured, the performance of
each and every obligation and undertaking of the respective tenants under the
Leases, and will appear in and defend, at its cost and expense, any action or
proceeding arising under or in any manner connected with the Leases or the
obligations and undertakings of any tenant thereunder. Assignor will not do or
permit to be done anything to impair the security hereof, including without
limitation the execution of any other assignment of Assignor's interest in the
Leases or the Rents, without Assignee's prior written consent.
3. This Assignment is intended to operate as an absolute and immediate
assignment of the Leases and the Rents; however, unless and until a default
occurs under the Notes, the Loan Agreement, the Deed of Trust or this
Assignment, Assignor will have a license to collect the Rents as and when the
same become due and payable. Assignor hereby agrees that the respective tenants
under the Leases, upon notice from Assignee of the occurrence of a default
hereunder, will thereafter pay to Assignee the Rents due and to become due under
the Leases without any obligation to determine whether or not such a default
does in fact exist. Assignor, without written approval of Assignee, will not
collect or accept Rent for more than one (1) month in advance; provided,
however, Assignor may
2
<PAGE> 4
accept Rent two (2) months in advance if such Rent accepted two (2) months in
advance does not exceed five percent (5%) of the Rent collected during the
applicable month.
4. Upon payment in full of the principal sum and interest, of the
Notes, this Assignment shall become and be void and of no effect. Assignor
hereby authorizes and directs the lessees named in said Leases or any other or
future lessees or occupants of the Premises described therein or in the Deed of
Trust upon receipt from the Assignee of written notice to the effect that
Assignee is then the holder of the Notes and the Deed of Trust and that a
default exists thereunder or under the Assignment, to pay over to the Assignee
all rents, income, profits and revenues hereby assigned and to continue so to do
until otherwise notified by Assignee.
5. This Amended and Restated Assignment of Leases and Rents as provided
herein will not be deemed or construed to constitute Assignee as a mortgagee in
possession of the Premises nor to obligate Assignee to take any action or to
incur expenses or perform or discharge any obligation, duty or liability of
Assignor under any Lease, or for the control, care, management, or repair of the
Premises; nor will it operate to make Assignee, except in the event of
Assignee's negligence, recklessness or wilful misconduct, responsible or liable
for any waste committed on the Premises by the tenants or any other parties or
for any dangerous or defective condition of the Premises, or for any act or
omission relating to the management, upkeep, repair, or control of the Premises
that results in loss or injury or death to any person. Except in the event of
Assignee's negligence, recklessness or wilful misconduct, Assignee will not be
liable for any loss sustained by Assignor resulting from Assignee's failure to
lease the Premises after default or from any other act or omission of Assignee
in managing the Premises after default. Assignor will and does hereby indemnify
and agree to hold harmless Assignee from and against any and all liability,
loss, cost, damage or expense which may be incurred under the Leases or by
reason of this Assignment of Leases (except as a result of Assignee's gross
negligence or willful misconduct) and, to the extent that a claim is made
against Assignee prior to the time Assignee takes possession of the Premises,
from any and all claims and demands whatsoever which may be asserted against
Assignee by reason of any alleged obligations or undertakings on its part to
perform or discharge any of the terms, covenants, or agreements contained in the
Leases. Should Assignee incur any such liability under the Leases or by reason
of this Amended and Restated Assignment of Leases and Rents or in defense of any
such claims or demands, the amount thereof, including costs, expenses, and
reasonable attorneys' and paralegals' fees and costs, will be secured hereby and
Assignor will reimburse Assignee therefor immediately upon demand and upon the
failure of Assignor so to do, Assignee may, at its option, declare all sums
secured hereby immediately due and payable, or may charge the costs thereof to
Assignor as an advance under the Notes and secured by this Assignment.
6. To the extent not so provided by applicable law, each Lease will
provide that, in the event of enforcement by Assignee of the remedies provided
for by law or by the Notes, the Deed of Trust or this Assignment, the lessee
thereunder will, upon request of any person succeeding to the interest of
Assignor as a result of such enforcement,
3
<PAGE> 5
automatically become the lessee of said successor in interest, without change in
the terms or other provisions of such Lease. Any such successor in interest will
not be bound by any payment of rent or additional rent made more than one (1)
month or two (2) months in advance (as applicable in accordance with Paragraph 3
above). The Leases are and at all times shall be subject and subordinate in all
respects to the Deed of Trust, and to all renewals, modifications, amendments,
consolidations, replacements, refinancings and extensions of the Deed of Trust,
to the full extent of all principal, interest and all other amounts secured
thereby. Provided that a tenant is not in default under its Lease, Assignee
shall not disturb the occupancy of such tenant under its Lease during the term
of such Lease, notwithstanding foreclosure of the Deed of Trust, acceptance of a
deed in lieu of foreclosure or exercise of any other remedy provided in the Deed
of Trust, or pursuant to the laws of the State of North Carolina. If requested
by a tenant or Assignor under any of the Leases or upon Assignee's request,
Assignor and Assignee shall enter into a subordination, nondisturbance and
attornment agreement (reasonably acceptable in form and substance to Assignee)
with such tenant whereby Assignee will agree to not disturb the tenant in its
possession of the Premises provided such tenant is not in default under its
Lease and the tenant will agree to attorn to Assignee if Assignee takes
possession of the Premises.
7. Upon a default under the Notes, the Loan Agreement, the Deed of
Trust or this Assignment, Assignee may at its option, without notice and without
regard to the adequacy of the security for the obligations set forth in the
Notes, either in person, by court appointed receiver or by agent, with or
without bringing any action or proceeding, demand and thereupon take possession
of the Premises, to have, hold, manage, lease and operate the same on such terms
and for such period of time as Assignee may deem proper, and either with or
without taking possession of the Premises in its own name, demand and receive
the Rents in the possession of Assignor at the time of Assignee's written demand
or collected thereafter, including those past due and unpaid, with full power to
make from time to time all alterations, renovations, repairs, or replacements
thereto or thereof as may seem proper to Assignee, and to apply such Rents to
the payment of: (a) all reasonable expenses of managing the Premises, including,
without limitation, the salaries, fees and wages of the managing agent and such
other employees as Assignee may deem necessary or desirable, all taxes, charges,
claims, assessments, liens, premiums for all insurance which Assignee may deem
necessary or desirable, costs of renovations, repairs, or replacements, and all
expenses incident to taking and retaining possession of the Premises and
protecting and preserving the same; or (b) the principal sum and interest
thereon of the Notes, together with all costs and attorneys' and paralegals'
fees and costs; all in such order or priority as Assignee in its sole discretion
may determine, any custom or use to the contrary notwithstanding.
8. This Assignment is made and accepted without prejudice to any of the
rights and remedies possessed by Assignee under the remaining terms and
conditions of the Notes, the Loan Agreement, or the Deed of Trust, and the right
of Assignee to exercise its remedies under this Assignment may be exercised by
Assignee either prior to, simultaneously with, or subsequent to any action taken
by it under the remaining terms and
4
<PAGE> 6
conditions of the Notes, the Loan Agreement, or the Deed of Trust. Each and
every right, remedy and power granted to Assignee by this Assignment will be
cumulative and in addition to any other right, remedy and power given by the
remaining terms and conditions of the Notes, the Loan Agreement, the Deed of
Trust or this Assignment, or now or hereafter existing in equity, at law or by
virtue of statute or otherwise. Nothing contained in this Assignment, and no act
done or omitted by Assignee pursuant to the powers and rights granted it
hereunder, nor the failure of Assignee to avail itself of any of the rights and
remedies under this Assignment, will be construed or deemed to be a waiver of
any of Assignee's rights and remedies under this Assignment, nor will such
exercise or omission to exercise of the powers and rights granted Assignee
hereunder be deemed to constitute a waiver of its rights and remedies under the
remaining terms and conditions of the Notes, the Loan Agreement, or the Deed of
Trust.
9. Assignee may take or release other security for the payment of the
indebtedness under the Notes and the Deed of Trust, may release any party
primarily or secondarily liable therefor, and may apply any other security held
by it to the satisfaction of such indebtedness without prejudice to any of its
rights under this Assignment.
10. The term "Lease" or "Leases" as used herein, means said Leases
hereby assigned or any extension or renewal thereof, and any leases subsequently
executed during the term of this Assignment covering the Premises or any part
thereof. At Assignee's request, Assignor will assign and transfer to Assignee
any and all subsequent leases upon all or any part of the Premises and to
execute and deliver at the request of Assignee all such further assurances and
assignments in the Premises as Assignee will require from time to time in its
sole discretion.
11. This Assignment, together with the covenants and warranties therein
contained, shall inure to the benefit of Assignee and any subsequent holder of
the Notes and the Deed of Trust shall be binding upon Assignor, their
successors, executors, personal representatives, and assigns, and any subsequent
owner of the Premises.
12. This Assignment shall expire and terminate upon the payment in full
of the Notes and any other Indebtedness secured by the Deed of Trust and any
cancellation, satisfaction or release of the Deed of Trust shall constitute a
cancellation, satisfaction, or release of this Assignment. In the event that a
specific property is released from the lien of the Deed of Trust, then such
property and the Leases relating to it shall, effective with the release, also
be released from this Assignment.
13. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ASSIGNOR, THE ASSIGNEE, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND ASSIGNS
(ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH ACKNOWLEDGE AND
AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR ARISING OUT OF
THIS ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP
5
<PAGE> 7
BETWEEN THE PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO
CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE
PARTIES, ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A
MATERIAL INDUCEMENT FOR THE LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE
SUBJECT TO NO EXCEPTIONS.
IN WITNESS WHEREOF, Assignor has executed this Assignment under seal
the day and year first above written.
Attest: ASSIGNOR:
KOGER EQUITY, INC.,
By: /s/ W. Lawrence Jenkins a Florida corporation
------------------------
Name: W. Lawrence Jenkins
------------------------
Its: Secretary
------------------------- By: /s/ G. Danny Edwards
--------------------------
Name: G. Danny Edwards
------------------------
Title: Treasurer
------------------------
[AFFIX CORPORATE SEAL]
Attest: ASSIGNEE:
FIRST UNION NATIONAL BANK, a
By: /s/ Lynn E. Vermilva national association, as Agent
--------------------------
Name: Lynn E. Vermilva
------------------------
Its: Vice President By: /s/ Andrew J. Hogshead
------------------------ ---------------------------
Name: J. Andrew Hogshead
-------------------------
Title: Vice President
------------------------
[AFFIX CORPORATE SEAL]
6
<PAGE> 8
STATE OF Georgia:
-------
COUNTY OF Camden:
-------
I, Dee Price, a Notary Public of the County of Camden, State of
Georgia, do hereby certify that W. Lawrence Jenkins, personally appeared before
me this day and acknowledged that he is the _______ Secretary of KOGER EQUITY,
INC., a Florida corporation, and that by authority duly given and as an act of
the corporation, the foregoing instrument was signed in its name by its
Treasurer, sealed with its corporate seal, and attested by himself as its_______
Secretary.
Witness my hand and official seal this 30th day of December, 1998.
/s/ Dee Price
--------------------------------------
Notary Public
Notary Public, Camden County, Georgia
My commission expires: Feb. 1, 1999
[NOTARIAL SEAL]
STATE OF Florida:
--------
COUNTY OF Duval:
------
I, Nancy Hoffmann, a Notary Public of the County of Duval, State of
Florida, do hereby certify that Lynn E. Vermilva, personally appeared before
me this day and acknowledged that she is the Vice Pres. of FIRST UNION NATIONAL
BANK, a national association, and that by authority duly given and as an act of
the corporation, the foregoing instrument was signed in its name by its J.
Andrew Hogshead, its Vice Pres., sealed with its corporate seal, and attested by
herself as its Vice Pres.
Witness my hand and official seal this 30th day of December, 1998.
/s/ Nancy Hoffmann
--------------------------------------
Notary Public
My commission expires: September 3, 2000
Bonded Thru Notary Public Underwriters
[NOTARIAL SEAL]
7
<PAGE> 9
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
8
<PAGE> 1
EXHIBIT 10(K)(5)(A)(III)
AMENDMENT TO ENVIRONMENTAL INDEMNIFICATION AGREEMENT
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
AMENDMENT TO ENVIRONMENTAL INDEMNIFICATION AGREEMENT
THIS AMENDMENT TO ENVIRONMENTAL INDEMNIFICATION AGREEMENT (this
"Amendment") is made and executed this 30th day of December, 1998, by
KOGER EQUITY, INC., a Florida corporation ("Borrower") whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256, Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Agent"), for the
Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement dated of even date herewith, as amended from
time to time, between Borrower and Agent (the "Loan Agreement").
RECITALS
1. Borrower and Agent, Morgan Guaranty Trust Company of New York, a New
York banking corporation, AmSouth Bank, a state banking corporation, and
Guaranty Federal Bank F.S.B., a federal savings bank (collectively, the
"Original Lenders") entered into that certain Amended and Restated Revolving
Credit Loan Agreement dated as of December 29, 1997 (the "Prior Loan Agreement")
pursuant to which the Original Lenders agreed to extend certain credit to
Borrower from time to time up to a maximum principal amount of $100,000,000 (the
"Loan").
2. As partial security for the Loan, Borrower provided the Original
Lenders with that certain Amended and Restated Deed of Trust and Security
Agreement dated as of December 29, 1997, and recorded in Book 4630, page 099, of
the public records of Guilford County, North Carolina, and that certain Deed of
Trust and Security Agreement dated as of December 29, 1997, and recorded in Book
9430, Page 207, of the public records of Mecklenburg County, North Carolina
(collectively, the "Deed of Trust"), wherein Borrower granted to the Original
Lenders a security interest in certain real property described therein (the
"Property") as security for the Loan.
3. As a condition precedent to and as a material inducement for the
Original Lenders' agreement to provide the Loan to Borrower, the Original
Lenders required
<PAGE> 3
Borrower to execute and deliver that certain Environmental Indemnification
Agreement dated as of December 29, 1997 covering the Property (the
"Environmental Agreement"), which Environmental Agreement was assigned to Agent
pursuant to that certain Assignment of Deed of Trust and Related Loan Documents
of even date herewith.
4. Borrower has applied to the Agent to increase the amount of the Loan
to $150,000,000 and to resyndicate the Loan to additional lenders in order to
finance such increase, and to modify certain other provisions of the Deed of
Trust. The Agent and the other Original Lenders have agreed to such
modifications, provided, among other things, that the Environmental Agreement is
modified in accordance with the terms and conditions hereinafter set forth.
ACCORDINGLY, in consideration of the mutual covenants, promises and
agreements hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Recitals. The recitals hereinabove are true and correct and are
incorporated herein by reference.
2. Additional Lenders. All references to the term "Lender" or "Lenders"
as utilized in the Environmental Agreement shall hereinafter be deemed to refer
to First Union National Bank, as Agent for the Lenders under and as defined in
the Loan Agreement.
3. Additional Promissory Notes. All references to the term "Notes" as
utilized in the Environmental Agreement shall hereinafter be deemed to refer
collectively to those certain Substitution Revolving Promissory Notes and
Revolving Promissory Notes all of even date herewith from Borrower to each of
the Lenders, as applicable.
4. Amendment to Loan Agreement. All references to the term "Loan
Agreement" as utilized in the Environmental Agreement shall hereinafter be
deemed to refer to that certain Second Amended and Restated Revolving Credit
Loan Agreement dated of even date herewith between Borrower and First Union
National Bank, as Agent for the Lenders. All references to the term "Loan" as
utilized in the Environmental Agreement shall hereinafter be deemed to refer to
the Loan evidenced by the Second Amended and Restated Loan Agreement.
5. Amended and Restated Deed of Trust. All references to the term "Deed
of Trust" as utilized in the Environmental Agreement shall hereinafter be deemed
to refer collectively to that certain Second Amended and Restated Deed of Trust
and Security Agreement from Borrower to Agent of even date herewith, and to be
recorded in the public records of Guilford County, North Carolina, and that
certain Amended and Restated Deed
2
<PAGE> 4
of Trust and Security Agreement from Borrower to Agent of even date herewith,
and to be recorded in the public records of Mecklenburg County, North Carolina.
6. Ratification. Except as herein expressly amended, the Environmental
Agreement is hereby ratified and confirmed and shall otherwise remain unchanged
and in full force and effect.
7. Capitalized Terms. All initial capitalized defined terms not defined
herein shall have the meanings assigned to them in the Environmental Agreement.
8. Counterparts. This Amendment may be executed in separate counterpart
signature pages, and all such counterparts taken together shall constitute but
one and the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their authorized officers as of the day and year first above
written.
BORROWER:
KOGER EQUITY, INC., a Florida
Attest: corporation
By: /s/ W. Lawrence Jenkins By: /s/ G. Danny Edwards
--------------------------- ------------------------------------
Name: W. Lawrence Jenkins Name: G. Danny Edwards
-------------------------- ----------------------------------
Its: Secretary Title: Treasurer
------------------ ---------------------------------
[CORPORATE SEAL]
LENDER:
FIRST UNION NATIONAL BANK, a
Attest: national association, as Agent
By: /s/ Lynn E. Vermilva By: /s/ Andrew J. Hogshead
--------------------------- ------------------------------------
Name: Lynn E. Vermilva Name: J. Andrew Hogshead
-------------------------- ----------------------------------
Its: Vice President Title: Vice President
--------------------------- ---------------------------------
[CORPORATE SEAL]
3
<PAGE> 1
EXHIBIT (10)(K)(5)(A)(IV)
AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND
PERMITS
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK OF FLORIDA, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
THIS AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS (this
"Assignment") is made and executed this 30th day of December, 1998, by
KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256, Attention: J.C. Teagle,
President, to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Agent"), for the
Lenders (as such term is defined in the Second Amended and Restated Revolving
Credit Loan Agreement dated of even date herewith, as amended from time to time,
between Borrower and Lender (the "Loan Agreement").
RECITALS
1. Borrower and Agent, Morgan Guaranty Trust Company of New York,
a New York banking corporation, AmSouth Bank, a state banking corporation, and
Guaranty Federal Bank, F.S.B., a federal savings bank (collectively, the
"Original Lenders"), entered into that certain Amended and Restated Revolving
Credit Loan Agreement dated as of December 29, 1997 (the "Prior Loan Agreement")
pursuant to which the Original Lenders agreed to extend certain credit to the
Borrower from time to time up to a maximum principal amount of $100,000,000 (the
"Loan").
2. As partial security for the Loan, the Borrower provided the
Original Lenders with that certain Amended and Restated Deed of Trust and
Security Agreement dated as of December 29, 1997, and recorded in Book 4630,
page 099, of the public records of Guilford County, North Carolina, and that
certain Deed of Trust and Security Agreement dated as of December 29, 1997, and
recorded in Book 9430, page 207, of the public records of Mecklenburg County,
North Carolina (collectively, the "Indenture"), wherein the Borrower granted to
the Original Lenders a security interest in certain real property described
therein as security for the Loan.
3. As additional collateral for repayment of the Loan, Borrower
made and delivered to the Original Lenders that certain Assignment of Contracts,
Licenses and Permits dated December 29, 1997 (the "Assignment of Contracts"),
which Assignment of
<PAGE> 3
Contracts was assigned to Agent pursuant to that certain Assignment of Deed of
Trust and Related Loan Documents of even date herewith.
4. The Borrower has applied to the Agent to increase the amount
of the Loan to $150,000,000 and to resyndicate the Loan to additional lenders in
order to finance such increase, and to modify certain other provisions of the
Indenture. The Agent and the other Original Lenders have agreed to such
modifications, provided, among other things, that the Assignment of Contracts is
modified in accordance with the terms and conditions hereinafter set forth.
ACCORDINGLY, in consideration of the mutual covenants, promises and
agreements hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Recitals. The recitals hereinabove are true and correct and
are incorporated herein by reference.
2. Additional Lenders. All references to the term "Lender" as
utilized in the Assignment of Contracts shall hereinafter be deemed to refer to
First Union National Bank, as Agent for the Lenders.
3. Additional Promissory Notes. All references to the term
"Notes" as utilized in the Assignment of Contracts shall hereinafter be deemed
to refer collectively to those certain Substitution Revolving Promissory Notes
and Revolving Promissory Notes all of even date herewith from Borrower to each
of the Lenders.
4. Amendment to Loan Agreement. All references to the term "Loan
Agreement" as utilized in the Assignment of Contracts shall hereinafter be
deemed to refer to that certain Second Amended and Restated Revolving Credit
Loan Agreement dated of even date herewith between Borrower and Lender. All
references to the term "Loan" as utilized in the Assignment of Contracts shall
hereinafter be deemed to refer to the Loan evidenced by the Second Amended and
Restated Loan Agreement.
5. Ratification. Except as herein expressly amended, the
Assignment of Contracts is hereby ratified and confirmed and shall otherwise
remain unchanged and in full force and effect.
6. Capitalized Terms. All initial capitalized defined terms not
defined herein shall have the meanings assigned to them in the Assignment of
Contracts.
2
<PAGE> 4
7. Counterparts. This Agreement may be executed in separate
counterpart signature pages, and all such counterparts taken together shall
constitute but one and the same instrument.
8. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, BORROWER, THE AGENT, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THIS ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT
FOR THE LENDERS TO MAKE THE LOAN TO BORROWER, AND SHALL BE SUBJECT TO NO
EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE> 5
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their authorized officers as of the day and year first above
written.
BORROWER:
KOGER EQUITY, INC., a Florida
Attest: corporation
By: /s/ W. Lawrence Jenkins By: /s/ G. Danny Edwards
--------------------------------- -----------------------------------
Name: W. Lawrence Jenkins Name: G. Danny Edwards
------------------------------- ---------------------------------
Its: Secretary Title: Treasurer
------------------- --------------------------------
[CORPORATE SEAL]
LENDER:
Attest: FIRST UNION NATIONAL BANK, a
national association, as Agent
By: /s/ Lynn E. Vermilva By: /s/ Andrew J. Hogshead
--------------------------------- -----------------------------------
Name: Lynne E. Vermilva Name: J. Andrew Hogshead
------------------------------- ---------------------------------
Its: Vice President Title: Vice President
-------------------------------- --------------------------------
[CORPORATE SEAL]
4
<PAGE> 1
THIS INSTRUMENT PREPARED BY, EXHIBIT 10(k)(5)(B)(i)
AND FOLLOWING RECORDING RETURN TO:
ALAN C. SHEPPARD, JR., ESQ.
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
50 NORTH LAURA STREET, SUITE 2800
JACKSONVILLE, FLORIDA 32202
AMENDED AND RESTATED DEED OF TRUST, ASSIGNMENT OF LEASES AND
RENTS AND SECURITY AGREEMENT
FROM
KOGER EQUITY, INC.
TO
TRESTE, INC.,
AS TRUSTEE
Dated as of December 30, 1998
State: North Carolina
Section:
Township:
Range:
County: Mecklenburg
Tax I.D.:
<PAGE> 2
AMENDED AND RESTATED DEED OF TRUST, ASSIGNMENT OF LEASES AND
RENTS AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT (this "Indenture"), dated as of December 30,
1998, from
KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose mailing address is
3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention:
J.C. Teagle, President,
to
TRESTE, INC., a Virginia corporation authorized to do business in North Carolina
("Trustee") having an address c/o First Union National Bank, a national
association, 301 South College Street, Charlotte, North Carolina 28288, as
trustee for the benefit of FIRST UNION NATIONAL BANK, a national association, as
Agent (the "Beneficiary") on behalf of the Lenders under and as defined in that
certain Second Amended and Restated Revolving Credit Loan Agreement dated as of
even date herewith, as amended from time to time (the "Loan Agreement"). For
purposes of notices permitted or required to be given hereunder, the
Beneficiary's mailing address is One First Union Center, 301 South College
Street, Charlotte, North Carolina 28288 Attention: First Union Capital Markets
Group.
Capitalized terms not otherwise defined herein are defined in Article I.
This Indenture amends and restates that certain Deed of Trust and Security
Agreement (the "Original Indenture") recorded in Official Records Book 9430,
Page 207, of the public records of Mecklenburg County, North Carolina, which
Original Indenture was assigned to Beneficiary, pursuant to that certain
Assignment of Deed of Trust and Related Loan Documents of even date herewith to
be recorded in the public records of Mecklenburg County, North Carolina (the
"Assignment").
W I T N E S S E T H :
THIS INDENTURE WITNESSETH, that to secure (A) the payment, performance
and observance of all obligations of Borrower and all indebtedness heretofore or
hereafter from time to time advanced under the Loan Agreement and the payment of
any and all other indebtedness which this Indenture by its terms secures
including, without limitation, the payment of principal and interest on the
Notes which shall (1) be payable to each of the Lenders, (2) be payable in full
not later than December 30, 2001, and (3) bear interest at a floating rate as
set forth in Section 2.6 of the Loan Agreement; provided, that the maximum
aggregate principal amount of indebtedness secured hereby, other than for
advances made pursuant to Article XXV, Paragraph 25 hereof, shall in no event
exceed
1
<PAGE> 3
$150,000,000.00 (the "Indebtedness") and (B) the performance of the covenants
and agreements contained herein and in the Loan Agreement, in consideration of
the aforesaid Indebtedness and the trust referred to and created below, Borrower
hereby irrevocably grants, bargains and sells, conveys, transfers, assigns, sets
over, hypothecates, pledges and grants to Trustee and its successors and assigns
IN TRUST WITH POWER OF SALE in and to all of Borrower's right, title and
interest in the following property and rights whether now owned or hereafter
acquired by Borrower (collectively, the "Property"):
(i) the Land;
(ii) all buildings, structures and other improvements
presently situated or hereafter constructed on the Land (collectively, the
"Improvements");
(iii) all rights, privileges, tenements, hereditaments,
rights of way, easements, rights and appurtenances belonging to or in any way
relating to either the Land or the Improvements;
(iv) all fixtures, machinery, equipment and other personal
property of all types owned by Borrower now or hereafter affixed to and used in
connection with the operation of the Land and Improvements, together with all
additions and accessions thereto, substitutions therefor and replacements
(collectively, the "Fixtures");
(v) all awards or payments, including interest thereon,
which may heretofore and hereafter be made with respect to the Land, the
Improvements or the Fixtures, whether from the exercise of the right of eminent
domain (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of said right), or for a change of grade of any
street, or for any other injury to or decrease in the value of Borrower's
rights, title or interest in and to the Land, the Improvements or the Fixtures;
(vi) all leases and other agreements affecting the use,
enjoyment or occupancy of the Land, the Improvements or the Fixtures now or
hereafter entered into (the "Leases") and rents, revenues, issues and profits
from the Land, the Improvements or the Fixtures (the "Rents") and all proceeds
from the sale or other disposition of the Leases and the right to receive and
apply the Rents to the payment of the Indebtedness;
(vii) all proceeds of and any unearned premiums on any
insurance policies covering the Land, the Improvements or the Fixtures,
including, without limitation, the right to receive and apply the proceeds of
any insurance, judgments, or settlements made in lieu thereof, for damage to the
Land, the Improvements or the Fixtures; and
(viii) the right, in the name and on behalf of Borrower, to
appear in and defend any action or proceeding brought with respect to Borrower's
right, title or interest in and to the Land, the Improvements or the Fixtures
and to commence any action or
2
<PAGE> 4
proceeding to protect the interest of Beneficiary in the Land, the Improvements
or the Fixtures;
TO HAVE AND TO HOLD the Property unto Trustee and its successors and
assigns, forever; IN TRUST NEVERTHELESS to its own proper use and benefit
forever, upon the terms and trusts herein set forth for the benefit and security
of Beneficiary.
This Indenture is a deed of trust of real property and a security
agreement covering the Fixtures under the Uniform Commercial Code of the State.
Upon the occurrence of an Event of Default, Trustee and Beneficiary shall, in
addition to other rights and remedies granted to them, have all the rights
granted to secured parties pursuant to the Uniform Commercial Code of the State.
Borrower, for itself and for its successors and assigns, covenants and
agrees with Trustee and with Beneficiary as follows:
ARTICLE I
1. Definitions. As used in this Indenture, the following capitalized
terms have the respective meanings set after them, such definitions to be
applicable equally to the singular and plural forms of such terms:
"AmSouth" shall mean AmSouth Bank, a state banking corporation.
"Beneficiary" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Borrower" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Citizens" shall mean Citizens Bank of Rhode Island, a Rhode Island
financial institution.
"Compass" shall mean Compass Bank, an Alabama banking corporation.
"Default" shall mean any condition or event which constitutes or which
would constitute an Event of Default either with or without notice or lapse of
time, or both.
"Default Rate" shall have the meaning assigned to such term in the Loan
Agreement.
"Event of Default" shall have the meaning assigned to such term in
Article V of this Indenture.
3
<PAGE> 5
"FUNB" shall mean First Union National Bank, a national association.
"Fixtures" shall have the meaning assigned to such term in clause (iv)
of the Granting Clause of this Indenture.
"GFB" shall mean Guaranty Federal Bank, F.S.B., a federal savings bank.
"Governmental Requirements" shall have the meaning assigned to such
term in the Loan Agreement.
"Impositions" shall mean, collectively, all taxes of every kind and
nature (including real and personal property, income withholding, profits and
gross receipts taxes), all charges for any easement or agreement maintained for
the benefit of any of the Property, all general and special assessments, levies,
permits, inspection and license fees, all water and sewer rents and other
utility charges, all ground rents, and all other public charges whether of a
like or different nature, even if unforeseen or extraordinary, imposed upon or
assessed against Borrower, Beneficiary or any portion of the Property as a
result of or arising in respect of the acquisition, occupancy, leasing, use or
possession thereof, or any activity conducted on the Property (including,
without limitation, any gross income tax, sales tax or excise tax levied by any
governmental body on or with respect to the Rents).
"Improvements" shall have the meaning assigned to such term in clause
(ii) of the Granting Clause of this Indenture.
"Indebtedness" shall have the meaning assigned to such term in the
Granting Clause of this Indenture.
"Indenture" shall mean this Amended and Restated Deed of Trust,
Assignment of Leases and Rents and Security Agreement.
"Land" shall mean those certain parcels of real property located in the
County of Mecklenburg, State of North Carolina, as more particularly described
on Exhibit A attached hereto and incorporated herein.
"Leases" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"Lenders" shall mean FUNB, GFB, AmSouth, Citizens, and Compass, and any
other Lenders under the Credit Agreement from time to time.
4
<PAGE> 6
"Loan Agreement" shall mean that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of December 30, 1998 between Borrower
and Beneficiary.
"Loan Documents" shall mean collectively, the Notes, the Loan
Agreement, this Mortgage, and the Security Deeds, the Assignments of Leases, the
Assignments of Contracts, the Indemnification Agreements, as such terms are
defined in the Loan Agreement and any and all other loan documents executed in
connection with the Loan.
"Notes" shall mean collectively (i) the Substitution Revolving
Promissory Note dated as of even date herewith made by Borrower payable to the
order of FUNB in the principal amount of $45,000,000, (ii) the Substitution
Revolving Promissory Note dated as of even date herewith made by Borrower
payable to the order of AmSouth in the original principal amount of $35,000,000,
(iii) the Substitution Revolving Promissory Note dated as of even date herewith
made by Borrower payable to the order of GFB in the original principal amount of
$35,000,000, (iv) the Revolving Promissory Note dated as of even date herewith
made by Borrower payable to the order of Citizens in the original principal
amount of $20,000,000, and (v) the Revolving Promissory Note dated as of even
date herewith made by Borrower payable to the order of Compass in the original
principal amount of $15,000,000.
"Other Indenture" shall mean any mortgage, deed to secure debt, or deed
of trust given by Borrower to or in favor of Trustee or Beneficiary to secure
the Indebtedness, other than this Indenture.
"Permitted Encumbrances" shall mean those covenants, restrictions,
reservations, liens, conditions and easements listed as exceptions to title as
set forth on Exhibit B attached hereto and incorporated herein.
"Person" shall mean any corporation, natural person, joint venture,
partnership, business trust, joint stock company, trust, unincorporated
organization, government or any department, agency or political subdivision
thereof.
"Property" shall have the meaning assigned to such term in the Granting
Clause of this Indenture.
"Rents" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"State" shall mean the State of North Carolina.
"Taking" shall mean a taking or voluntary conveyance during the term
hereof of all or part of the Property, or any interest therein or right accruing
thereto or use thereof, as
5
<PAGE> 7
the result of or in lieu or in anticipation of the exercise of the right of
condemnation or eminent domain.
"Trustee" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
ARTICLE II
2. Representations and Warranties. Borrower represents and warrants
to Trustee for the benefit of Beneficiary that (a) it has full power, authority
and legal right to execute and deliver this Indenture and to grant a first deed
of trust of the Property, (b) it holds good and marketable fee simple title to
the Land and good and marketable title to the balance of the Property, (c) this
Indenture constitutes a valid first deed of trust of the Property, subject to
the Permitted Encumbrances, and (d) the Leases are in full force and effect in
accordance with their respective terms, have not been canceled or modified, and
have not been assigned or encumbered except to Beneficiary pursuant to this
Indenture and the Loan Agreement, and, to the best of Borrower's knowledge, no
default exists under the Leases. Borrower, at its expense, will warrant to
Trustee and to Beneficiary and will defend its title to the Property and the
lien thereon created by this Indenture against all claims and demands, and will
maintain and preserve such lien so long as the Indebtedness secured by this
Indenture remains outstanding, subject, however, to the Permitted Encumbrances.
ARTICLE III
3. Affirmative Covenants. Until this Indenture and the lien created
hereby shall terminate in accordance with Article XIX, Borrower shall comply
with the following covenants:
(a) Recordation, Filing, Etc. At all times cause this Indenture and
each amendment or modification hereof or supplement hereto (and such financing
statements covering the Property under the Uniform Commercial Code as in effect
in the State as may be necessary or appropriate) to be recorded, registered and
filed and kept recorded, registered and filed in such manner and in such places
as appropriate, and comply with all applicable statutes and regulations, in
order to establish, preserve and protect the lien of this Indenture as a first
lien on the Property and the rights of Trustee and Beneficiary hereunder.
Borrower shall pay, or shall cause to be paid, all taxes, fees and other charges
incurred in connection with such recording, registration, filing and compliance.
(b) Maintenance and Repairs. Keep and maintain the Property in good
order, repair and operating condition (ordinary wear and tear excepted) and make
all repairs and replacements necessary to that end.
6
<PAGE> 8
(c) Payment of Impositions and Utility Charges. Pay all Impositions
while the same may be paid without fine, penalty, interest or additional cost,
unless the same shall be contested in good faith and by appropriate proceedings
by Borrower in the manner permitted by the Loan Agreement. Any Impositions which
are payable in installments may be paid in installments provided that the
Borrower is otherwise in compliance with the Loan Agreement. Upon the written
request of Beneficiary from time to time, Borrower will furnish to Beneficiary
official receipts or other satisfactory proof evidencing such payments. In
addition, Borrower will pay all utility charges as required by the Loan
Agreement. Borrower shall not be entitled to any credit on the Indebtedness, by
reason of the payment of any Imposition or utility charges or any part thereof.
(d) Compliance with Governmental Requirements. Promptly (i) comply
with all Governmental Requirements unless the same shall be contested in good
faith and by appropriate proceedings by Borrower in the manner permitted by the
Loan Agreement, and (ii) procure, maintain and comply with all licenses or other
authorizations required for any use of the Property then being made, and for the
proper erection, installation, operation, repair and maintenance of the
Improvement and the Fixtures, or any part of either thereof.
(e) Insurance. Maintain insurance of the types and in the amounts
required by, and otherwise complying with the Loan Agreement and promptly
deliver, or cause to be promptly delivered, to Beneficiary any certificates or
evidence of such insurance as required under the Loan Agreement.
(f) Damage, Destruction or Taking. In the event of any damage,
destruction or Taking affecting all or any portion of the Property, Borrower
shall give immediate written and oral notice thereof to Beneficiary and Trustee
and proceed in accordance with the terms of the Loan Agreement. In case of any
such material damage, destruction or Taking, Beneficiary shall be entitled to
hold all insurance proceeds, payments or awards on account thereof, to the same
extent Borrower would be entitled thereto under the Loan Agreement, and Borrower
hereby irrevocably assigns to Beneficiary all of its rights to any such
insurance proceeds, payments or awards. With respect to a Taking, and in
accordance with its obligations under the Loan Agreement, Borrower will file or
prosecute or will cause to be filed or prosecuted in good faith and with due
diligence what would otherwise be its claim for any such award or payment and
cause the same to be collected and paid over to Beneficiary. At the sole cost
and expense of Borrower, Beneficiary may elect to monitor or participate in, and
if reasonably necessary, may hire independent legal counsel to represent
Beneficiary in connection with, any claim or the claims payment process.
Borrower will pay or cause to be paid all costs and expenses reasonably incurred
in connection with any Taking and the seeking and obtaining of any award or
payment in respect thereof. Unless an Event of Default shall have occurred under
the Loan Agreement, all sums so received by Beneficiary shall be applied in
accordance with the provisions of the Loan Agreement.
7
<PAGE> 9
(g) Notification of Default, Etc. Promptly after obtaining knowledge
thereof, notify Trustee and Beneficiary of any Default hereunder or under the
Loan Agreement or of any action or proceeding materially and adversely affecting
the Property.
ARTICLE IV
4. Negative Covenants. Without the prior written consent of
Beneficiary, Borrower will not directly or indirectly create or permit to be
created or to remain and will discharge or will cause to be discharged any
mortgage, charge, lien or encumbrance on, or attachment or pledge of, or
conditional sale or other title retention agreement with respect to, the
Property or any part thereof, its interest or the interests of Trustee and
Beneficiary therein, or the Rents or other sums payable pursuant to the Leases,
except (i) this Indenture, (ii) the Permitted Encumbrances, (iii) easements,
restrictions, liens, charges and other encumbrances permitted by the Loan
Agreement, (iv) liens being contested in good faith and by appropriate
proceedings in the manner permitted by the Loan Agreement, and (v) liens arising
out of or created by any statute, the discharge of which cannot under the terms
of such statute at the particular time be effected by Borrower; provided,
however, that any such statutory liens will promptly be discharged as and when
such discharge is possible or permissible. Borrower shall have the right to
grant, without the prior consent of Beneficiary, any utility easement.
ARTICLE V
5. Events of Default. If any one or more of the following events
(individually, an "Event of Default") shall occur:
(a) non-payment, when due, of any sums which Borrower is obligated to
pay hereunder, under the Notes, or under the Loan Agreement continues unremedied
for a period of five (5) days after the date such payment is due; or
(b) failure of Borrower to keep in full force and effect its corporate
existence, rights, franchises and privileges, except as provided for in the Loan
Agreement; or
(c) if an Event of Default (as defined in the Loan Agreement) shall
have occurred under the Loan Agreement; or
(d) if any of the representations or warranties made by Borrower in
any document, instrument or certificate delivered in connection with the
financing of the Property by Borrower proves to be untrue in any material
respect; or
(e) if a default shall have occurred under any Other Indenture and
shall be continuing beyond the applicable grace or cure period provided therein;
or
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(f) if Borrower shall (i) voluntarily be adjudicated a bankrupt or
insolvent, (ii) seek or consent to the appointment of a receiver or trustee for
itself or for any portion of the Property, (iii) file a petition seeking relief
under the bankruptcy or other similar laws of the United States, any state or
any jurisdiction, (iv) make a general assignment for the benefit of creditors,
or (v) be unable to pay its debts as they mature; or
(g) a court shall enter an order, judgment or decree appointing, with
the consent of Borrower, a receiver or trustee for it or for any of the Property
or approving a petition filed against Borrower which seeks relief under the
bankruptcy or other similar laws of the United States, any state or any
jurisdiction, and such order, judgment or decree shall remain in force,
undischarged or unstayed, sixty (60) days after it is entered; or
(h) the estate or interest of Borrower in any of the Property shall be
levied upon or attached in any proceeding and such estate or interest is about
to be sold or transferred or such process shall not be vacated or discharged
within fifteen (15) days after such levy or attachment;
(i) if Borrower sells, conveys or transfers, voluntarily or otherwise,
its interest in the Property without the prior written consent of Beneficiary;
or
(j) Any material provision of the Loan Documents relating to Trustee's
and Beneficiary's ability to realize on the Collateral following an Event of
Default shall for any reason cease to be valid and binding on Borrower, or
Borrower shall so state in writing.
then, in any such event, Trustee or Beneficiary may accelerate the Indebtedness
outstanding under this Indenture, and may take such other actions as may be
provided under the Loan Agreement, or at law or in equity.
ARTICLE VI
6. Assignment of Leases and Rents.
6.1. Assignment of Rents. As additional security hereunder, the
Borrower hereby grants, bargains, conveys, assigns, transfers and sets over, and
by these presents does grant, bargain, convey, assign, transfer and set over to
the Beneficiary, as well as the Trustee on behalf of the Beneficiary, all Rents,
if any; provided, however, that unless and until an Event of Default occurs, the
Borrower will have a license to collect and retain such Rents as and when, but
not before, the same shall become due and payable. Upon an Event of Default, the
Beneficiary shall be immediately entitled to and may collect such Rents. In
addition, upon an Event of Default, the Beneficiary, or the Trustee on the
Beneficiary's behalf, may at any time and without notice, either in person or by
agent or by receiver to be appointed by a court, enter and take possession of
the Property or any part thereof, and in its own name, sue for or otherwise
collect such Rents. The Borrower
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hereby agrees with the Beneficiary that other parties under the Leases may, upon
notice from the Beneficiary, or the Trustee acting on behalf of the Beneficiary,
on the occurrence of an Event of Default, thereafter pay directly to the
Beneficiary the Rents due and to become due under the Leases and attorn to all
other obligations thereunder, directly to the Beneficiary without any obligation
on their part to determine whether an Event of Default does, in fact, exist or
has, in fact, occurred. All Rents collected by the Trustee or the Beneficiary
shall be applied as provided in Article XII hereof; provided, however, that if
the costs and expenses and attorney's fees shall exceed the amount of the Rents
collected, the excess shall be added to the Indebtedness, shall bear interest at
the maximum rate allowable by law as provided herein, and shall be immediately
due and payable. The entering upon and taking possession of the Property, the
collection of Rents, if any, and the application thereof as aforesaid, shall not
cure or waive any Event of Default or notice of default, if any, hereunder, nor
invalidate any act done pursuant to such notice except to the extent that such
default is fully cured. Failure or discontinuance of the Trustee or the
Beneficiary at any time or from time to time, to collect said Rents, shall not
in any manner impair the subsequent enforcement by the Beneficiary, or the
Trustee on the Beneficiary's behalf, of the right, power and authority herein
conferred upon it. Nothing contained herein, nor the exercise of any right,
power or authority herein granted to the Beneficiary, or the Trustee on the
Beneficiary's behalf, shall be construed to be an affirmation by it of any
tenancy, lease or option, nor an assumption of liability under, nor the
subordination of the lien or charge of this Indenture, to any such tenancy,
lease or option.
ARTICLE VII
7. Remedies in Case of Event of Default.
7.1. Legal Proceedings and Foreclosure. If an Event of Default shall
have occurred, Trustee or Beneficiary may proceed by suit or suits at law or in
equity or by any other appropriate remedy to protect and enforce its rights
hereunder, whether for the specific performance of any covenant or agreement
contained herein, or for an injunction against the violation of any of the terms
hereof, or in aid of the exercise of any right, power or remedy available to it,
or to enforce the payment of the Indebtedness under the Loan Agreement, or to
foreclose the lien and security interest of this Indenture as against all or any
part of the Property and to have all or any part of the Property sold, in any
manner permitted by law, under the judgment or decree of a court or courts of
competent jurisdiction, or otherwise, and to pursue any other remedy available
to it. If Beneficiary proceeds to foreclose the lien of this Indenture, Trustee
shall have the statutory power of sale if permitted by applicable law. In the
event of any such suit or proceeding, Beneficiary and/or Trustee shall comply
with any local laws applicable to any such suits or proceedings. Any such suit
or proceeding instituted by Trustee shall be brought in its name as Trustee and
any recovery or judgment shall be for the benefit of Beneficiary. All costs and
expenses (including, without limitation, reasonable attorney's fees and
expenses) incurred by Trustee or Beneficiary in connection with any such suit or
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proceeding, together with interest thereon (to the extent permitted by law)
computed at the Default Rate from the date on which such costs or expenses are
incurred to the date of payment thereof, shall constitute additional
Indebtedness secured by this Indenture and shall be paid by Borrower to Trustee
or Beneficiary, as the case may be, on demand.
7.2. Power of Sale and Procedure. If an Event of Default shall have
occurred, Trustee, at Beneficiary's election, may sell or offer for sale the
Property in such portions, order and parcels as Beneficiary may determine, with
or without having first taken possession of same, to the highest bidder for cash
at public auction. In exercising such power of sale, Trustee shall give such
notice of hearing as to the commencement of the foreclosure proceedings and
shall obtain such findings or leave at court as may then be required by
applicable law and shall give such notice of such foreclosure sale and shall
advertise the time and place of such sale in such manner as may then be provided
by applicable law and shall comply in all respects with all laws applicable to
the institution, conduct, and completion of power of sale foreclosures. Such
sale shall be made in conformance with the laws of the State in which the
Property is located at the courthouse door of the county wherein the Property is
situated. All aspects of any power of sale foreclosure commenced by Trustee
hereunder shall be accomplished in such manner as permitted or required by State
law in existence on the date hereof relating to the sale of real estate and/or
relating to the sale of collateral after a default by a debtor, as the same may
be amended or supplemented, or by any subsequent laws relating to same. At any
such sale (i) whether made under the power herein contained, State law, any
other legal requirement or by virtue of any judicial proceeding or any other
legal right, remedy or recourse, it shall not be necessary for Trustee to have
physically present, or to have constructive possession of, the Property
(Borrower hereby covenanting and agreeing to deliver to Trustee any portion of
the Property not actually or constructively possessed by Trustee immediately
upon demand by Trustee) and the title to and right of possession of any such
property shall pass to the purchaser thereof as completely as if the same had
been actually present and delivered to such purchaser at such sale, and (ii) the
receipt of Trustee or of such other party or officer making the sale shall be a
sufficient discharge to the purchaser or purchasers for his or their purchase
money and no such purchaser or purchasers, or his or their assigns or personal
representatives, shall thereafter be obligated to see to the application of such
purchase money or be in any way answerable for any loss, misapplication or
non-application thereof.
7.3. Acceleration of Maturity. If an Event of Default shall have
occurred, Beneficiary may declare the entire outstanding Indebtedness under the
Loan Agreement, and all other sums secured hereby, to be due and payable
immediately, and upon such declaration, such Indebtedness and other sums shall
immediately become and be due and payable without demand or notice.
7.4. Leases. Trustee at the option of Beneficiary is authorized to
foreclose this Indenture subject to the rights of any tenants of the Property,
and the failure to make any
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such tenants parties defendant to any such foreclosure proceedings and to
foreclose their rights will not be, nor be asserted by Borrower to be, a defense
to any proceedings instituted by Trustee and/or Beneficiary to collect the sums
secured hereby or to collect any deficiency remaining unpaid after the
foreclosure sale of the Property.
7.5. Suits to Protect the Property. Beneficiary, or Trustee at
Beneficiary's election, shall have the power and authority to institute and
maintain any suits and proceedings as Beneficiary may deem advisable (a) to
prevent any impairment of the Property by any acts which may be unlawful or any
violation of this Indenture, (b) to preserve or protect its interest in the
Property, and (c) to restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order might impair the security hereunder or be
prejudicial to Beneficiary's interest.
7.6. Discontinuance of Proceedings; Position of Parties Restored. If
Beneficiary, or Trustee at Beneficiary's election, shall have proceeded to
enforce any right or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to Beneficiary, then and in
every such instance, Borrower and Beneficiary shall, except to the extent
modified by such proceedings, be restored to their former positions and rights
hereunder, and all rights, powers and remedies of Beneficiary shall continue as
if no such proceeding had occurred or had been taken.
7.7. Borrower to Pay the Indebtedness on Any Default in Payment;
Application of Monies by Beneficiary.
(a) If an Event of Default shall occur as a result of Borrower's
failure to pay any amount due under the Loan Agreement or this Indenture, then,
upon Beneficiary's demand, Borrower will pay to Beneficiary the whole amount due
and payable under the Loan Agreement and all other sums secured hereby. If
Borrower shall fail to pay the same forthwith upon such demand, Beneficiary, or
Trustee at Beneficiary's election, shall be entitled to sue for and to recover
judgment for the whole amount so due and unpaid together with costs and
expenses, including the reasonable compensation, expenses and disbursements of
Beneficiary's agents, attorneys and other representatives. Beneficiary shall be
entitled to sue and recover judgment as aforesaid either before, after or during
the pendency of any proceedings for the enforcement of this Indenture, and the
right of Beneficiary to recover such judgment shall not be affected by any
taking of possession or foreclosure sale hereunder, or by the exercise of any
other right, power or remedy for the enforcement of the terms of this Indenture,
or the foreclosure of the lien hereof.
(b) In case of a foreclosure sale of all or any part of the Property
and of the application of the proceeds of sale to the payment of the sums
secured hereby, Beneficiary
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shall be entitled to enforce payment of and to receive all amounts then
remaining due and unpaid and to recover judgment for any portion thereof
remaining unpaid, with interest.
(c) Borrower hereby agrees, to the extent permitted by law, that no
recovery of any such judgment by Beneficiary and no attachment or levy of any
execution upon any of the Property or any other property shall in any way affect
the lien of this Indenture upon the Property or any part thereof or any lien,
rights, powers or remedies of Beneficiary hereunder, but such lien, rights,
powers and remedies of Beneficiary hereunder shall continue unimpaired as
before.
ARTICLE VIII
8.1. Purchase of the Property by Beneficiary. Beneficiary may be a
purchaser of the Property or any part thereof or any interest therein at any
sale thereof, whether pursuant to foreclosure, power of sale or otherwise, and
may apply the Indebtedness secured hereby to the purchase price.
8.2. Title Upon Sale; Receipt a Sufficient Discharge to Purchaser.
After the occurrence of an Event of Default hereunder, and upon the sale of the
Property or any part thereof or any interest therein by Trustee or Beneficiary,
whether pursuant to foreclosure, power of sale or otherwise, the purchaser shall
acquire good title thereto, free of the lien of this Indenture and free of all
rights of redemption, whether statutory, equitable or otherwise, in Borrower to
the extent permitted by applicable law. The receipt of the officer making the
sale under judicial proceedings or of Trustee or Beneficiary shall be sufficient
discharge to the purchaser for the purchase money, and such purchaser shall not
be obligated to see to the application thereof. All occupants of the Property
sold or any part thereof shall become tenants at sufferance of the purchaser,
and as long as a tenant is not in default under its Lease, the purchaser will
not disturb the occupancy of such tenant of the Property during the term of its
Lease. It shall not be necessary for the purchaser at any such sale to bring any
action for possession to the Property purchased other than statutory action of
forcible detainer in any justice court having jurisdiction.
8.3. Application of Indebtedness Toward Purchase Price. If Beneficiary
purchases the Property pursuant to foreclosure, power of sale or otherwise, then
Beneficiary may, in lieu of cash, apply all or any portion of the sums due to
Beneficiary under the Loan Agreement and this Indenture or any other instrument
securing the Indebtedness, to the unpaid balance of the purchase price remaining
after payment of any portion of the purchase price required to be paid in cash,
and the costs and expenses of the sale, compensation and other charges relating
to the sale.
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ARTICLE IX
9. Waiver of Appraisement, Valuation, Etc. Borrower hereby waives, to
the full extent it may lawfully do so, the benefit of all appraisement,
valuation, stay, moratorium, exemption from execution, extension and redemption
laws now or hereafter in force and all rights of marshaling in the event of the
sale of the Property or any part thereof or any interest therein.
ARTICLE X
10. Appointment of Receiver. If an Event of Default shall have
occurred, Trustee and/or Beneficiary shall, as a matter of right and to the
fullest extent permitted by applicable law, be entitled, ex parte and without
notice, to the appointment of a receiver or receivers of the Property or any
part thereof, whether such receivership be incidental to a proposed sale thereof
or otherwise, and Borrower hereby consents to the appointment of such a receiver
or receivers and will not oppose any such appointment. The expenses, including
receiver's fees, attorney's fees, costs and agent's compensation, incurred
pursuant to the powers herein contained shall be secured by this Indenture.
ARTICLE XI
11. Possession, Management and Income. If an Event of Default shall
have occurred under this Indenture, Trustee or Beneficiary, without further
notice, may enter upon and take possession of the Property or any part thereof,
in any manner permitted by law, by reasonable force, summary proceedings,
ejectment or otherwise and may remove Borrower and all other Persons and any and
all property therefrom, and Trustee or Beneficiary may hold, operate and manage
the same, make all necessary or proper repairs, renewals, and replacements, and
useful alterations, additions, betterments and improvements thereto and thereon
as may seem advisable to either of them, and insure and reinsure the Property as
may seem advisable and to either of them, and may receive all earnings, income,
rents, issues and proceeds accruing with respect thereto. Any amounts so
received by Trustee or Beneficiary shall be applied (a) to pay (i) the expenses
of operating the Property and of all maintenance, repairs, renewals,
replacements, alterations, additions, betterments, improvements, taxes,
assessments, insurance premiums, reasonable compensation for the services of
Trustee and all attorneys, advisors, brokers, receivers, agents and other
employees engaged or employed by Trustee or Beneficiary and all other costs and
expenses of entering a bond and taking possession of and holding the Property,
and (ii) any lien prior to the lien of this Indenture which Beneficiary may
consider it necessary or desirable to discharge and then (b) in the manner
provided in Article XII of this Indenture. If an Event of Default shall have
occurred under the Loan Agreement or if the Loan Agreement shall be terminated,
all sums so received by Trustee or Beneficiary shall be applied in the manner
specified in Article XII of this Indenture.
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ARTICLE XII
12. Application of Proceeds. The proceeds of (a) the operation and
management of the Property pursuant to Article XI of this Indenture, and (b) any
sale of the Property or any interest therein, shall, unless otherwise provided
in the Loan Agreement, be applied as follows:
First: to the costs and expenses of the sale, reasonable attorneys'
fees and expenses, reasonable Trustee's fees and expenses, court costs, and any
other expenses or advances made or incurred in the protection of the rights of
Trustee and Beneficiary or in the pursuance of any remedies hereunder;
Second: to the fullest extent permitted by applicable law, to any lien
prior to the lien of this Indenture which Beneficiary may consider it necessary
or desirable to discharge;
Third: to any Indebtedness secured by this Indenture and at the time
due and payable (whether by acceleration or otherwise;
Fourth: to Beneficiary for payment of the Notes outstanding; and
Fifth: the balance, if any, to Borrower.
ARTICLE XIII
13. Remedies, Etc., Cumulative. Each legal, equitable or contractual
right, power or remedy of Trustee and Beneficiary now or hereafter provided
herein or by statute or otherwise shall be cumulative and concurrent and shall
be in addition to every other right, power and remedy, and the exercise or
beginning of the exercise by Trustee or Beneficiary of any one or more of such
rights, powers and remedies shall not preclude the simultaneous or later
exercise of any or all such other rights, powers and remedies.
ARTICLE XIV
14. No Waiver, Etc. No failure by Trustee or Beneficiary to insist upon
the strict performance of any term hereof or to exercise any right, power or
remedy consequent upon a breach hereof shall constitute a waiver of any such
term or of any such breach. No acceptance of the payment of any sums due under
this Indenture or under the Loan Agreement during the continuance of any Default
shall constitute a waiver thereof. No waiver of any breach shall affect or alter
this Indenture which shall continue in full force and effect with respect to any
other then existing or subsequent breach.
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ARTICLE XV
15. Trustee.
(a) All the rights, powers and remedies of Beneficiary hereunder may be
exercised by Trustee. Trustee shall not be under any obligation to exercise any
trust or power vested in him by this Indenture unless Beneficiary shall have
offered Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by Trustee in compliance herewith. Trustee
shall not be liable with respect to any action taken or omitted to be taken by
Trustee in accordance with the written directions of Beneficiary, except for
Trustee's own bad faith, willful misconduct or negligence. Trustee shall not be
required to ascertain or inquire as to the performance or observance of any of
the covenants or agreements of Borrower herein, and in the absence of written
notice from Borrower or Beneficiary stating that a Default has occurred and
specifying the same, Trustee may conclusively assume that no Default exists.
(b) Trustee may, with consent of Beneficiary, consult with counsel
(which may be counsel for Borrower) and the written advice or opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by him hereunder in good faith and in
accordance therewith.
(c) Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys.
(d) Any moneys received by Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
law.
(e) Beneficiary may, by instrument in writing, filed in the office or
offices where this Indenture has been recorded, and at any time or from time to
time, and without notice and without specifying any reason therefor, and without
applying to any court, remove Trustee and select a successor trustee or trustees
in the event of the death, removal, resignation, refusal to act, or inability to
act of Trustee or, in its sole discretion, for any reason whatsoever. Trustee so
ceasing to act shall duly assign, transfer and deliver any of the property and
monies held by such Trustee to the successor appointed in Trustee's place. All
powers, rights and duties and authority of Trustee shall thereupon become vested
in the successor. The successor shall not be required to give bond or make an
oath for the faithful performance of his duties unless required by Beneficiary.
(f) Trustee may resign by the giving of notice of such resignation in
writing to Beneficiary.
(g) If more than one Trustee is appointed under this Indenture, all
rights granted to and all powers conferred upon Trustee hereunder may be
exercised by both or either of Trustees.
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(h) All reasonable expenses, charges, counsel fees and other
disbursements incurred by Trustee in and about the administration of this
Indenture and executed in the performance of its duties and powers hereunder
shall be secured by this Indenture.
ARTICLE XVI
16. Right of Trustee or Beneficiary to Perform Covenants, Etc. If
Borrower shall fail to make any payment or perform any act required to be made
or performed hereunder and such failure shall not be cured within the applicable
grace period, if any, Trustee or Beneficiary, without notice to or demand upon
Borrower and without waiving or releasing any obligation or Default, may (but
shall be under no obligation to) at any time thereafter make such payment or
perform such act for the account and at the expense of Borrower and may enter
upon the Property or any part thereof for such purpose and take all such action
thereon as, in the opinion of Trustee or Beneficiary, may be necessary or
appropriate therefor. All sums so paid by Trustee or Beneficiary and all costs
and expenses (including, without limitation, attorneys' fees and expenses) so
incurred shall constitute additional Indebtedness secured by this Indenture and
shall be paid by Borrower to Trustee or Beneficiary on demand.
ARTICLE XVII
17. Certificate as to No Default, Etc.; Information. At any time and
from time to time, Borrower will deliver to Beneficiary, promptly upon request,
a certificate signed by a duly authorized officer of Borrower stating that, to
the best of the signer's knowledge after making due inquiry, there is no Default
hereunder, or if any such Default exists to his knowledge, specifying the nature
and period of existence thereof and what action Borrower is taking or proposes
to take with respect thereto. Borrower will also furnish promptly to
Beneficiary, such information with respect to the Property and the Leases as may
from time to time be requested.
ARTICLE XVIII
18. Additional Instruments. Borrower, at its expense, will execute,
acknowledge, secure and deliver all such instruments and take all such action as
Trustee or Beneficiary from time to time may reasonably request for the better
assuring of the Property, rights and obligations now or hereafter subjected to
the security of this Indenture or intended so to be.
ARTICLE XIX
19. Defeasance. This Indenture and the lien created hereby shall
terminate after the payment in full of (a) all the Indebtedness and (b) all
other sums secured hereby. Upon such termination, and upon surrender of this
Indenture for cancellation, Beneficiary shall
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release, without warranty, the Property then subject to the lien hereof to the
Persons entitled thereto. The recitals in any reconveyance executed under this
Indenture of any matters of fact shall be conclusive proof of the truthfulness
thereof. The grantee in such release may be described as "the person or persons
legally entitled thereto". Trustee and/or Beneficiary, at Borrower's expense,
shall execute and deliver such instruments of release, satisfaction and
termination in proper form for recording or filing, as may be appropriate to
evidence the release of (a) the Property from the lien created hereby, and (b)
any other security held by Trustee and/or Beneficiary and such satisfaction and
termination, and such instruments, when duly executed, recorded and filed, shall
conclusively evidence the release, satisfaction and termination of this
Indenture.
ARTICLE XX
20. Applicable Law; Severability.
(a) This Indenture shall be governed by and construed in accordance
with the laws of the State.
(b) All rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not violate any applicable
law, and are intended to be limited to the extent necessary so that they will
not render this Indenture invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law. If any term or provision of this
Indenture shall be held to be invalid, illegal or unenforceable, the validity of
the other terms and provisions hereof shall in no way be affected thereby.
ARTICLE XXI
21. Miscellaneous. This Indenture (a) may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought, and (b) shall be binding upon Borrower, its successors and assigns, and
all Persons claiming under or through Borrower or any such successor or assign,
and shall inure to the benefit of and be enforceable by Trustee and its
successors and Beneficiary and its successors and assigns. The headings in this
Indenture are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof. All agreements between Borrower and Beneficiary,
whether now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of demand or
acceleration of the maturity of any payments hereunder or under the Loan
Agreement or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to Beneficiary exceed the maximum amount permissible
under applicable law. If, in any circumstance whatsoever, interest would
otherwise be payable to Beneficiary in excess of the maximum lawful amount, and
if in any circumstance Beneficiary shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, and if
permitted by applicable law,
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an amount equal to any excessive interest shall be applied to the reduction of
advances under the Loan Agreement and not to the payment of interest, or if such
excessive interest exceeds the unpaid advances under the Loan Agreement, such
excess shall be refunded to Borrower. All interest paid or agreed to be paid to
Beneficiary shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full period until payment in full
of the principal so that the interest hereon for such full period shall not
exceed the maximum amount permitted by applicable law. This paragraph shall
control all agreements between Borrower and Beneficiary. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one and the same instrument. Portions of
the Property consist of goods which are, or are to become, fixtures relating to
the Land and Borrower expressly covenants and agrees that the filing of this
Indenture in the real estate records of the county where the Property is located
shall also operate from the time of filing therein as a financing statement
filed as a fixture filing in accordance with Article 9 of the State's Uniform
Commercial Code - Secured Transactions.
ARTICLE XXII
22. Change in Method of Taxation. In the event of the passage, after
the date of this Indenture, of any law changing in any way the laws now in force
for the taxation of mortgages or debts secured thereby, for state or local
purposes, or the operation of any such taxes so as to adversely affect the
interest of Beneficiary in the Property, this Indenture or the Loan Agreement,
Borrower shall, upon demand, bear and pay the full amount (or any partial
amount) requested by Beneficiary, of taxes resulting from such changes hereunder
without offset or credit against any other sums due under the Loan Agreement or
on the Notes.
ARTICLE XXIII
23. Trustee's Acceptance. Trustee accepts the trust created hereby when
this Indenture, duly executed and acknowledged, is made a public record in the
State and county where the Property is located, as provided by the laws of the
State.
ARTICLE XXIV
24. No Petition. Trustee and Beneficiary hereby covenant and agree that
they will not institute against, or join any Person in instituting against
Borrower, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law at any time other than on a date which is at least one
(1) year and one (1) day after the payment in full of the Notes; provided,
however, that nothing in this Article shall constitute a waiver of any right to
indemnification, reimbursement or other payment from Borrower pursuant to the
Loan Agreement.
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ARTICLE XXV
25. Indenture Secures Future Advances. This Indenture is given to
secure not only the amount initially secured by this Indenture, but also such
future advances, whether such advances are obligatory or are to be made at the
option of Trustee or Beneficiary, or otherwise, as are made within fifteen (15)
years from the date hereof, to the same extent as if such future advances were
made on the date of the execution of this Indenture. The total amount of
advances outstanding and presently secured hereby is Eighty-six Million Dollars
($86,000,000.00). The Loan Agreement currently provides Borrower with a
revolving line of credit up to $150,000,000.00. However, pursuant to Section
2.11 of the Loan Agreement, Borrower may request an increase to the Loan Amount
up to $200,000,000.00 upon approval of the Lenders as set forth therein. Any
such increase to the Loan Amount shall constitute a future advance and shall be
secured by this Indenture to the same extent as if such future advance was made
on the date of the execution of this Indenture. This Indenture secures a
revolving line of credit under which Advances may be made, repaid, and
reborrowed on a revolving basis as provided for in the Loan Agreement.
ARTICLE XXVI
26. Approval of Legal Description. Borrower has read and does hereby
approve the legal description of the Land which Is the subject hereof, as set
forth in Exhibit A attached hereto, and hereby indemnifies Trustee and
Beneficiary and their attorneys with respect to any liability which might arise
as a consequence of any error or omission therein.
ARTICLE XXVII
27. Loan Agreement. The terms, provisions, conditions, representations
and warranties and covenant of the Loan Agreement are incorporated herein by
reference. In the event of a conflict between this Indenture and the Loan
Agreement, the Loan Agreement shall control. The Loan Agreement contains
provisions permitting Borrower to obtain releases of portions of the Property
from this Indenture from time to time.
ARTICLE XXVIII
28. WAIVER OF JURY TRIAL. BORROWER, TRUSTEE, AND BENEFICIARY, BY THEIR
ACCEPTANCE HEREOF, EACH ACKNOWLEDGE AND AGREE THAT NEITHER BORROWER, TRUSTEE,
AND BENEFICIARY, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF
ANY OF THE SAME, WILL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF
THIS DEED OF TRUST, THE NOTES, THE LOAN AGREEMENT OR THE LOAN DOCUMENTS, ANY
COLLATERAL, OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG BORROWER,
TRUSTEE OR BENEFICIARY RELATED
20
<PAGE> 22
THERETO. NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY
OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY BORROWER, TRUSTEE, AND BENEFICIARY, ARE
MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL
INDUCEMENT FOR TRUSTEE AND BENEFICIARY TO MAKE THE LOAN TO TRUSTOR, AND WILL BE
SUBJECT TO NO EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
21
<PAGE> 23
IN WITNESS WHEREOF, Borrower has caused this Indenture to be executed
and attested by its proper officers thereunto duly authorized, as of the day and
year first above written and has executed the same in order that this Indenture
may qualify as a financing statement under the Uniform Commercial Code of the
State as to such of the Property, if any, constitutes personalty.
KOGER EQUITY, INC.,
Attest: a Florida corporation
By:/s/ W. Lawrence Jenkins By: /s/ G. Danny Edwards
- -------------------------------- --------------------------
Name: W. Lawrence Jenkins Name: G. Danny Edwards
--------------------------- ------------------------
Its: Secretary Title: Treasurer
---------------------------- -----------------------
[AFFIX CORPORATE SEAL]
STATE OF Georgia:
-------
COUNTY OF Camden:
-------
I, Dee Price, a Notary Public of the County of Camden, State of
Georgia, do hereby certify that W. Lawrence Jenkins , personally appeared
before me this day and acknowledged that he/she is the Secretary of KOGER
EQUITY, INC., a Florida corporation, and that by authority duly given and as an
act of the corporation, the foregoing instrument was signed in its name by its
Treasurer, sealed with its corporate seal, and attested by himself as its
Secretary.
Witness my hand and official seal this 30th day of December, 1998.
Dee Price
-------------------------------------
Notary Public
Notary Public, Camden County, Georgia
My commission expires: Feb. 1, 1999
[NOTARIAL SEAL]
22
<PAGE> 24
EXHIBIT A
The Land
<PAGE> 25
EXHIBIT B
Permitted Encumbrances
<PAGE> 1
THIS INSTRUMENT PREPARED BY EXHIBIT 10(K)(5)(B)(II)
AND RECORD AND RETURN TO:
Alan C. Sheppard, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, FL 32202-3650
AMENDED AND RESTATED ASSIGNMENT OF LEASES AND RENTS
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
AMENDED AND RESTATED ASSIGNMENT OF LEASES AND RENTS
---------------------------------------------------
THIS AMENDED AND RESTATED ASSIGNMENT OF LEASES AND RENTS (this
"Assignment") is made and executed as of this 30th day of December, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Assignor"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Assignee") for
the Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement of even date herewith (the "Loan Agreement"),
whose address is 301 South College Street, Charlotte, North Carolina 28288
Attention: First Union Capital Markets Group. The terms Borrower and Lender,
whenever hereinafter used will be construed to refer to and include the heirs,
legal representatives, executors, administrators, successors and assigns of
said parties.
R E C I T A L S:
A. Assignor is the mortgagor under that certain Amended and
Restated Deed of Trust, Assignment of Leases and Rents and Security Agreement
given by Assignor to Assignee dated of even date herewith and recorded or to be
recorded in the public records of Mecklenburg County, North Carolina (the "Deed
of Trust"); securing the following Substitution Revolving Promissory Notes and
Revolving Promissory Notes: (i) Substitution Revolving Promissory Note dated as
of even date herewith made by Assignor payable to the order of FUNB in the
original principal amount of $45,000,000, (ii) the Substitution Revolving
Promissory Note dated as of even date herewith made by Assignor payable to the
order of AmSouth in the original principal amount of $35,000,000, (iii) the
Substitution Revolving Promissory Note dated as of even date herewith made by
Assignor payable to the order of GFB in the original principal amount of
$35,000,000, (iv) the Revolving Promissory Note dated as of even date herewith
made by Assignor payable to the order of Citizens in the original principal
amount of $20,000,000, and (v) the Revolving Promissory Note dated as of even
date herewith made by Assignor payable to the order of Compass in the original
principal amount of $15,000,000 (collectively, the "Notes", as such term is
defined in the Loan Agreement), encumbering certain real property interests
located in Mecklenburg County, North Carolina, as more particularly described
on attached Exhibit A (the "Premises").
B. To further secure the payment, discharge and performance of
the Notes, and as a condition to Assignee's extension of credit to Assignor
pursuant to the Notes, Assignor has agreed to execute this Assignment for the
purposes set forth herein.
1
<PAGE> 3
C. This Assignment amends and restates that certain Assignment
of Leases and Rents recorded in Official Records Book 9430, Page 249, of the
public records of Mecklenburg County, North Carolina, which Assignment of
Leases and Rents was assigned to Assignee pursuant to that certain Assignment
of Deed of Trust and Related Loan Documents of even date herewith to be
recorded in the public records of Mecklenburg County, North Carolina.
NOW, THEREFORE, to further secure the payment, discharge and
performance of the indebtedness of Assignor to Assignee evidenced by the Notes
and in consideration of Assignee's acceptance of the Notes and in further
consideration of the sum of Ten Dollars ($10.00) paid by Assignee to Assignor,
receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee all of Assignor's right, title and interest in, to and
under any and all present and future leases of or in the Premises ("Leases")
and any and all rents, revenues, issues and profits (including Assignor's
interest in any security deposits relating thereto) arising out of or accruing
from the Leases whether now or hereafter due ("Rents"), said Leases and Rents
being deemed part of the security for the indebtedness herein mentioned and are
encumbered, transferred and conveyed by this Assignment, and in furtherance
thereof, does hereby covenant and agree with Assignee as follows:
1. Assignor will notify Assignee in writing (but without any
right of approval or denial on the part of Assignee) of any termination,
substitution or material modification of any Leases involving 10,000 or more
Koger Net Square Feet (as defined in the Loan Agreement).
2. Assignor will, at its cost and expense, observe, perform and
discharge, or cause to be observed, performed and discharged, all of the
obligations and undertakings of Assignor or its agents under the Leases, and
will use its reasonable best efforts in the exercise of sound business judgment
to enforce or secure, or cause to be enforced or secured, the performance of
each and every obligation and undertaking of the respective tenants under the
Leases, and will appear in and defend, at its cost and expense, any action or
proceeding arising under or in any manner connected with the Leases or the
obligations and undertakings of any tenant thereunder. Assignor will not do or
permit to be done anything to impair the security hereof, including without
limitation the execution of any other assignment of Assignor's interest in the
Leases or the Rents, without Assignee's prior written consent.
3. This Assignment is intended to operate as an absolute and
immediate assignment of the Leases and the Rents; however, unless and until a
default occurs under the Notes, the Loan Agreement, the Deed of Trust or this
Assignment, Assignor will have a license to collect the Rents as and when the
same become due and payable. Assignor hereby agrees that the respective tenants
under the Leases, upon notice from Assignee of the occurrence of a default
hereunder, will thereafter pay to Assignee the Rents due and to become due
under the Leases without any obligation to determine whether or not such a
default does in fact exist. Assignor, without written approval of Assignee,
will not collect
2
<PAGE> 4
or accept Rent for more than one (1) month in advance; provided, however,
Assignor may accept Rent two (2) months in advance if such Rent accepted two
(2) months in advance does not exceed five percent (5%) of the Rent collected
during the applicable month.
4. Upon payment in full of the principal sum and interest, of
the Notes, this Assignment shall become and be void and of no effect. Assignor
hereby authorizes and directs the lessees named in said Leases or any other or
future lessees or occupants of the Premises described therein or in the Deed of
Trust upon receipt from the Assignee of written notice to the effect that
Assignee is then the holder of the Notes and the Deed of Trust and that a
default exists thereunder or under the Assignment, to pay over to the Assignee
all rents, income, profits and revenues hereby assigned and to continue so to
do until otherwise notified by Assignee.
5. This Amended and Restated Assignment of Leases and Rents as
provided herein will not be deemed or construed to constitute Assignee as a
mortgagee in possession of the Premises nor to obligate Assignee to take any
action or to incur expenses or perform or discharge any obligation, duty or
liability of Assignor under any Lease, or for the control, care, management, or
repair of the Premises; nor will it operate to make Assignee, except in the
event of Assignee's negligence, recklessness or wilful misconduct, responsible
or liable for any waste committed on the Premises by the tenants or any other
parties or for any dangerous or defective condition of the Premises, or for any
act or omission relating to the management, upkeep, repair, or control of the
Premises that results in loss or injury or death to any person. Except in the
event of Assignee's negligence, recklessness or wilful misconduct, Assignee
will not be liable for any loss sustained by Assignor resulting from Assignee's
failure to lease the Premises after default or from any other act or omission
of Assignee in managing the Premises after default. Assignor will and does
hereby indemnify and agree to hold harmless Assignee from and against any and
all liability, loss, cost, damage or expense which may be incurred under the
Leases or by reason of this Assignment of Leases (except as a result of
Assignee's gross negligence or willful misconduct) and, to the extent that a
claim is made against Assignee prior to the time Assignee takes possession of
the Premises, from any and all claims and demands whatsoever which may be
asserted against Assignee by reason of any alleged obligations or undertakings
on its part to perform or discharge any of the terms, covenants, or agreements
contained in the Leases. Should Assignee incur any such liability under the
Leases or by reason of this Amended and Restated Assignment of Leases and Rents
or in defense of any such claims or demands, the amount thereof, including
costs, expenses, and reasonable attorneys' and paralegals' fees and costs, will
be secured hereby and Assignor will reimburse Assignee therefor immediately
upon demand and upon the failure of Assignor so to do, Assignee may, at its
option, declare all sums secured hereby immediately due and payable, or may
charge the costs thereof to Assignor as an advance under the Notes and secured
by this Assignment.
6. To the extent not so provided by applicable law, each Lease
will provide that, in the event of enforcement by Assignee of the remedies
provided for by law or by the Notes, the Deed of Trust or this Assignment, the
lessee thereunder will, upon request of
3
<PAGE> 5
any person succeeding to the interest of Assignor as a result of such
enforcement, automatically become the lessee of said successor in interest,
without change in the terms or other provisions of such Lease. Any such
successor in interest will not be bound by any payment of rent or additional
rent made more than one (1) month or two (2) months in advance (as applicable
in accordance with Paragraph 3 above). The Leases are and at all times shall be
subject and subordinate in all respects to the Deed of Trust, and to all
renewals, modifications, amendments, consolidations, replacements, refinancings
and extensions of the Deed of Trust, to the full extent of all principal,
interest and all other amounts secured thereby. Provided that a tenant is not
in default under its Lease, Assignee shall not disturb the occupancy of such
tenant under its Lease during the term of such Lease, notwithstanding
foreclosure of the Deed of Trust, acceptance of a deed in lieu of foreclosure
or exercise of any other remedy provided in the Deed of Trust, or pursuant to
the laws of the State of North Carolina. If requested by a tenant or Assignor
under any of the Leases or upon Assignee's request, Assignor and Assignee shall
enter into a subordination, nondisturbance and attornment agreement (reasonably
acceptable in form and substance to Assignee) with such tenant whereby Assignee
will agree to not disturb the tenant in its possession of the Premises provided
such tenant is not in default under its Lease and the tenant will agree to
attorn to Assignee if Assignee takes possession of the Premises.
7. Upon a default under the Notes, the Loan Agreement, the Deed
of Trust or this Assignment, Assignee may at its option, without notice and
without regard to the adequacy of the security for the obligations set forth in
the Notes, either in person, by court appointed receiver or by agent, with or
without bringing any action or proceeding, demand and thereupon take possession
of the Premises, to have, hold, manage, lease and operate the same on such
terms and for such period of time as Assignee may deem proper, and either with
or without taking possession of the Premises in its own name, demand and
receive the Rents in the possession of Assignor at the time of Assignee's
written demand or collected thereafter, including those past due and unpaid,
with full power to make from time to time all alterations, renovations,
repairs, or replacements thereto or thereof as may seem proper to Assignee, and
to apply such Rents to the payment of: (a) all reasonable expenses of managing
the Premises, including, without limitation, the salaries, fees and wages of
the managing agent and such other employees as Assignee may deem necessary or
desirable, all taxes, charges, claims, assessments, liens, premiums for all
insurance which Assignee may deem necessary or desirable, costs of renovations,
repairs, or replacements, and all expenses incident to taking and retaining
possession of the Premises and protecting and preserving the same; or (b) the
principal sum and interest thereon of the Notes, together with all costs and
attorneys' and paralegals' fees and costs; all in such order or priority as
Assignee in its sole discretion may determine, any custom or use to the
contrary notwithstanding.
8. This Assignment is made and accepted without prejudice to any
of the rights and remedies possessed by Assignee under the remaining terms and
conditions of the Notes, the Loan Agreement, or the Deed of Trust, and the
right of Assignee to exercise its remedies under this Assignment may be
exercised by Assignee either prior to,
4
<PAGE> 6
simultaneously with, or subsequent to any action taken by it under the
remaining terms and conditions of the Notes, the Loan Agreement, or the Deed of
Trust. Each and every right, remedy and power granted to Assignee by this
Assignment will be cumulative and in addition to any other right, remedy and
power given by the remaining terms and conditions of the Notes, the Loan
Agreement, the Deed of Trust or this Assignment, or now or hereafter existing
in equity, at law or by virtue of statute or otherwise. Nothing contained in
this Assignment, and no act done or omitted by Assignee pursuant to the powers
and rights granted it hereunder, nor the failure of Assignee to avail itself of
any of the rights and remedies under this Assignment, will be construed or
deemed to be a waiver of any of Assignee's rights and remedies under this
Assignment, nor will such exercise or omission to exercise of the powers and
rights granted Assignee hereunder be deemed to constitute a waiver of its
rights and remedies under the remaining terms and conditions of the Notes, the
Loan Agreement, or the Deed of Trust.
9. Assignee may take or release other security for the payment
of the indebtedness under the Notes and the Deed of Trust, may release any
party primarily or secondarily liable therefor, and may apply any other
security held by it to the satisfaction of such indebtedness without prejudice
to any of its rights under this Assignment.
10. The term "Lease" or "Leases" as used herein, means said
Leases hereby assigned or any extension or renewal thereof, and any leases
subsequently executed during the term of this Assignment covering the Premises
or any part thereof. At Assignee's request, Assignor will assign and transfer
to Assignee any and all subsequent leases upon all or any part of the Premises
and to execute and deliver at the request of Assignee all such further
assurances and assignments in the Premises as Assignee will require from time
to time in its sole discretion.
11. This Assignment, together with the covenants and warranties
therein contained, shall inure to the benefit of Assignee and any subsequent
holder of the Notes and the Deed of Trust shall be binding upon Assignor, their
successors, executors, personal representatives, and assigns, and any
subsequent owner of the Premises.
12. This Assignment shall expire and terminate upon the payment
in full of the Notes and any other Indebtedness secured by the Deed of Trust
and any cancellation, satisfaction or release of the Deed of Trust shall
constitute a cancellation, satisfaction, or release of this Assignment. In the
event that a specific property is released from the lien of the Deed of Trust,
then such property and the Leases relating to it shall, effective with the
release, also be released from this Assignment.
13. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ASSIGNOR, THE ASSIGNEE, AND THE LENDERS, THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE
"PARTIES") EACH ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL
IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE
BASED UPON OR
5
<PAGE> 7
ARISING OUT OF THIS ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE
MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL
INDUCEMENT FOR THE LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE SUBJECT
TO NO EXCEPTIONS.
IN WITNESS WHEREOF, Assignor has executed this Assignment under seal
the day and year first above written.
ASSIGNOR:
KOGER EQUITY, INC.,
Attest: a Florida corporation
By: /s/ W. Lawrence Jenkins By: /s/ G. Danny Edwards
------------------------ -------------------------------
Name: W. Lawrence Jenkins Name: G. Danny Edwards
Its: Secretary -----------------------------
----------------------- Title: Treasurer
----------------------------
[AFFIX CORPORATE SEAL]
ASSIGNEE:
FIRST UNION NATIONAL BANK, a
Attest: national association, as Agent
By: /s/ Lynn E. Vermilva By: /s/ Andrew J. Hogshead
------------------------- -------------------------------
Name: Lynn E. Vermilva Name: J. Andrew Hogshead
----------------------- ----------------------------
Its: Vice President Secretary Title: Vice President
----------------------- ----------------------------
[AFFIX CORPORATE SEAL]
6
<PAGE> 8
STATE OF Georgia:
-------
COUNTY OF Camden:
-------
I, Dee Price, a Notary Public of the County of Camden, State of
Georgia, do hereby certify that W. Lawrence Jenkins, personally appeared
before me this day and acknowledged that he/she is the Secretary of KOGER
EQUITY, INC., a Florida corporation, and that by authority duly given and as an
act of the corporation, the foregoing instrument was signed in its name by its
Treasurer, sealed with its corporate seal, and attested by himself/herself as
its Secretary.
Witness my hand and official seal this 30th day of December, 1998.
/s/ Dee Price
----------------------------------
Notary Public
Notary Public, Camden County, Georgia
My commission expires: Feb. 1, 1999
[NOTARIAL SEAL]
STATE OF Florida:
-------
COUNTY OF Duval:
------
I, Nancy Hoffmann, a Notary Public of the County of Duval, State of
Florida, do hereby certify that Lynn E. Vermilva, personally appeared before
me this day and acknowledged that he/she is the Vice President. of FIRST UNION
NATIONAL BANK, a national association, and that by authority duly given and as
an act of the corporation, the foregoing instrument was signed in its name by
its J. Andrew Hogshead, its Vice President, sealed with its corporate seal, and
attested by herself as its Vice President.
Witness my hand and official seal this 30th day of December, 1998.
/s/ Nancy Hoffmann
------------------------------------------
Notary Public
My commission expires: September 3, 2000
Bonded Thru Notary Public Underwriters
[NOTARIAL SEAL]
7
<PAGE> 9
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
8
<PAGE> 1
EXHIBIT 10(k)(5)(b)(iii)
THIS INSTRUMENT PREPARED BY
AND RECORD AND RETURN TO:
Alan C. Sheppard, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, FL 32202-3650
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY
AGREEMENT
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK,
AS AGENT
<PAGE> 2
AMENDED AND RESTATED
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY
AGREEMENT
THIS AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS, AND SECURITY AGREEMENT (this "Mortgage"), dated as of December 30,
1998, from
KOGER EQUITY, INC., a Florida corporation ("Mortgagor"), whose mailing address
is 8880 Freedom Crossing Trail, Jacksonville, Florida 32256-9220 Attention: J.C.
Teagle, President,
to
FIRST UNION NATIONAL BANK, a national association, as Agent (the "Mortgagee")
for the Lenders under that certain Second Amended and Restated Revolving Credit
Loan Agreement (the "Loan Agreement"), and all successors and assigns of
Mortgagee. For purposes of notices permitted or required to be given hereunder,
the Mortgagee's mailing address is One First Union Center, 301 S. College
Street, Attention: REIT Banking Group, Charlotte, North Carolina 28202.
Capitalized terms not otherwise defined herein are defined in Article I.
WITNESSETH:
THIS MORTGAGE WITNESSETH that Mortgagor made and delivered that certain
Mortgage, Assignment of Leases and Rents and Security Agreement to First Union
National Bank, a national banking association, Morgan Guaranty Trust Company of
New York, a New York banking corporation, AmSouth Bank, a state banking
corporation, and Guaranty Federal Bank, F.S.B., a federal savings bank, as
mortgagees, thereunder dated as of December 29, 1997, and recorded in Mortgage
Book 2979, Page 0338, of the public records of Greenville County, South Carolina
(the "Original Mortgage"), which Original Mortgage was assigned to Mortgagee
pursuant to that certain Assignment of Mortgage and Related Loan Documents of
even date herewith to be recorded in the public records of Greenville County,
South Carolina (the "Assignment");
THIS MORTGAGE WITNESSETH, that the Original Mortgage partially secured
the Obligations of Mortgagor under that certain Amended and Restated Revolving
Credit Loan Agreement dated as of December 29, 1997 (the "Prior Loan
Agreement");
THIS MORTGAGE WITNESSETH, that the Mortgagor and the Mortgagee have
entered into the Loan Agreement as of even date herewith, pursuant to which the
Prior Loan Agreement has been modified to increase the Loan to $150,000,000 and
to modify other terms and conditions therein;
1
<PAGE> 3
THIS MORTGAGE WITNESSETH, that to secure (A) the payment, performance
and observance of all obligations of Mortgagor and all Obligations heretofore or
hereafter from time to time advanced under the Loan Agreement and the payment of
any and all other Obligations which this Mortgage by its terms secures
including, without limitation, the payment of principal and interest on the
Notes which shall (1) be payable to Mortgagee, as agent for the benefit of the
Lenders (as defined in the Loan Agreement), (2) be payable in full not later
than December 30, 2001, and (3) bear interest at a floating rate as set forth in
Section 2.6 of the Loan Agreement; provided, that the maximum aggregate
principal amount of Obligations secured hereby, other than for future advances
made pursuant to Paragraph 9 hereof, shall in no event exceed $150,000,000.00
(the "Obligations"); and (B) the performance of the covenants and agreements
contained herein and in the Loan Agreement, and in consideration of the
aforesaid, Mortgagor does hereby mortgage, grant a security interest in,
bargain, sell, alien, remise, release, convey and confirm unto Mortgagee, its
successors and assigns, the following property and rights whether now owned or
hereafter acquired by Mortgagor (collectively, the "Property"):
(i) the Land;
(ii) all buildings, structures and other improvements presently
situated or hereafter constructed on the Land (collectively, the
("Improvements");
(iii) all rights, privileges, tenements, hereditaments, rights of
way, easements, rights and appurtenances belonging to or in any way relating to
either the Land or the Improvements;
(iv) All fixtures, machinery, equipment and other personal property
of all types owned by Mortgagor now or hereafter affixed to and used in
connection with the operation of the Land and Improvements, together with all
additions and accessions thereto, substitutions therefor and replacements
(collectively, the "Fixtures");
(v) all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Land, the Improvements or
the Fixtures, whether from the exercise of the right of eminent domain
(including, but not limited to any transfer made in lieu of or in anticipation
of the exercise of said right), or for a change of grade of any street, or for
any other injury to or decrease in the value of Mortgagor's rights, title or
interest in and to the Land, the Improvements or the Fixtures;
(vi) all leases and other agreements affecting the use, enjoyment
or occupancy of the Land, the Improvements or the Fixtures now or hereafter
entered into (the "Leases") and rents, revenues, issues and profits from the
Land, the Improvements or the Fixtures (the "Rents") and all proceeds from the
sale or other disposition of the Leases and the right to receive and apply the
Rents to the payment of the Obligations;
(vii) all proceeds of and any unearned premiums on any insurance
policies covering the Land, the Improvements or the Fixtures, including, without
limitation, the right
2
<PAGE> 4
to receive and apply the proceeds of any insurance, judgments, or settlements
made in lieu thereof, for damage to the Land, the Improvements or the Fixtures;
and
(viii) the right, in the name and on behalf of Mortgagor, to appear
in and defend any action or proceeding brought with respect to Mortgagor's
right, title or interest in and to the Land, the Improvements or the Fixtures
and to commence any action or proceeding to protect the interest of Mortgagee in
the Land, the Improvements or the Fixtures;
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, for the use, benefit and behoof of Mortgagee, IN FEE
SIMPLE forever.
PROVIDED ALWAYS and these presents are upon the express condition that
if Mortgagor will pay to Mortgagee the Obligations from time to time evidenced
and secured by the Notes and will promptly and fully perform, execute and
complete each and every covenant, agreement, obligation, condition and
stipulation contained in this Mortgage and the Notes, then this Mortgage and the
estate hereby created will cease and be null and void and cancelled of record;
otherwise the same will remain in full force and effect.
MORTGAGOR, FOR ITSELF AND FOR ITS SUCCESSORS AND ASSIGNS,
HEREBY WARRANTS, REPRESENTS, COVENANTS AND AGREES WITH
MORTGAGEE THAT THE ORIGINAL MORTGAGE IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY AS FOLLOWS:
ARTICLE I
1. Definitions. As used in this Mortgage, the following
capitalized terms shall have the meanings set after them, such definitions to be
applicable equally to the singular and plural forms of such terms:
"AmSouth" shall mean AmSouth Bank, a state banking corporation.
"Citizens" shall mean Citizens Bank of Rhode Island, a Rhode Island
financial institution.
"Compass" shall mean Compass Bank, an Alabama banking corporation.
"Default" shall mean any condition or event which constitutes or which
would constitute an Event of Default either with or without notice or lapse of
time, or both.
"Default Rate" shall have the meaning assigned to such term in the Loan
Agreement.
"Event of Default" shall have the meaning assigned to such term in
Paragraph 5 of this Mortgage.
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"Fixtures" shall have the meaning assigned to such term in the Granting
Clause of this Mortgage.
"FUNB" shall mean First Union National Bank, a national association.
"GFB" shall mean Guaranty Federal Bank, F.S.B., a federal savings bank.
"Governmental Requirements" shall have the meaning assigned to such
term in the Loan Agreement.
"Impositions" shall mean, collectively, all taxes of every kind and
nature (including real and personal property, documentary stamp tax, intangible
taxes, income withholding, profits and gross receipts taxes), all charges for
any easement or agreement maintained for the benefit of any of the Property, all
general and special assessments, levies, permits, inspection and license fees,
all water and sewer rents and other utility charges, all ground rents, and all
other public charges whether of a like or different nature, even if unforeseen
or extraordinary, imposed upon or assessed against Mortgagor, Mortgagee or any
portion of the Property as a result of or arising in respect of the acquisition,
occupancy, leasing, use or possession thereof, or any activity conducted on the
Property (including, without limitation, any gross income tax, sales tax or
excise tax levied by any governmental body on or with respect to the Rents).
"Improvements" shall have the meaning assigned to such term in the
Granting Clause of this Mortgage.
"Land" shall mean those certain parcels of real property located in the
County of Greenville, State of South Carolina, as more particularly described in
Exhibit A attached hereto and incorporated herein.
"Leases" shall have the meaning assigned to such term in the Granting
Clause of this Mortgage.
"Lenders" shall mean FUNB, AmSouth, GFB, Citizens, and Compass, and any
other Lenders from time to time under the Loan Agreement.
"Loan Agreement" shall mean that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of even date herewith between Mortgagor
and Mortgagee.
"Loan Documents" shall mean this Mortgage, the Loan Agreement, the
Notes, the Security Deeds, the Lease Assignments, the Assignments of Contracts,
the Indemnification Agreement, and any other instrument, document, affidavits,
or certificates given by Mortgagor to the Mortgagee for the benefit of the
Lenders in support of, or evidencing or securing, the Loan.
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"Mortgagee" shall have the meaning assigned to such term in the
introductory paragraph of this Mortgage.
"Mortgage" shall mean this Amended and Restated Mortgage, Assignment of
Leases and Rents, and Security Agreement.
"Mortgagor" shall have the meaning assigned to such term in the
introductory paragraph of this Mortgage.
"Notes" shall mean the Substitution Revolving Promissory Note dated as
of even date herewith made by Mortgagor payable to the order of FUNB in the
original principal amount of $45,000,000, the Substitution Revolving Promissory
Note dated as of even date herewith made by Mortgagor payable to the order of
AmSouth in the original principal amount of $35,000,000, the Substitution
Revolving Promissory Note dated as of even date herewith made by Mortgagor
payable to the order of GFB in the original principal amount of $35,000,000, the
Revolving Promissory Note dated as of even date herewith made by Mortgagor
payable to the order of Citizens in the original principal amount of
$20,000,000, and the Revolving Promissory Note dated as of even date herewith
made by Mortgagor payable to the order of Compass in the original principal
amount of $15,000,000.
"Obligations" shall have the meaning assigned to such term in the
Granting Clause of this Mortgage.
"Other Mortgage" shall mean any mortgage, deed to secure debt, or deed
of trust given by Mortgagor to or in favor of Mortgagee to secure the
Obligations, other than this Mortgage.
"Permitted Encumbrances" shall mean those covenants, restrictions,
reservations, liens, conditions and easements listed as exceptions to title as
set forth on Exhibit B attached hereto and incorporated herein.
"Person" shall mean any corporation, natural person, joint venture,
partnership, business trust, joint stock company, trust, unincorporated
organization, government or any department, agency or political subdivision
thereof.
"Property" shall have the meaning assigned to such term in the Granting
Clause of this Mortgage.
"Rents" shall have the meaning assigned to such term in the Granting
Clause of this Mortgage.
"State" shall mean the State of South Carolina.
"Taking" shall mean a taking or voluntary conveyance during the term
hereof of all or part of the Property, or any interest therein or right accruing
thereto or use thereof, as
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the result of or in lieu or in anticipation of the exercise of the right of
condemnation or eminent domain.
ARTICLE II
2. Representatives and Warranties Regarding Mortgage. Mortgagor
represents and warrants to Mortgagee as follows:
(a) It will timely pay and perform the Obligations when due;
(b) It has full power, authority and legal right to execute and
deliver this Mortgage and to grant a mortgage of the Property;
(c) It holds good and marketable fee simple title to the Property;
(d) It has the legal right to convey and encumber the Property
subject to the Permitted Encumbrances and, at its expense, will warrant to
Mortgagee and will defend its title to the Property and the estate created by
this Mortgage against all claims and demands, and will maintain and preserve
such estate so long as the Obligations secured by this Mortgage remains
outstanding, subject, however, to the Permitted Encumbrances; and
(e) This Mortgage constitutes a valid first mortgage of the
Property, subject to the Permitted Encumbrances.
ARTICLE III
3. Affirmative Covenants. Until this Mortgage and the estate
created hereby shall terminate in accordance with Paragraph 14.6 hereof,
Mortgagor shall comply with the following covenants:
(a) Recordation, Filing, Etc. At all times cause this Mortgage and
each amendment or modification hereof or supplement hereto (and such financing
statements covering the Property under the Uniform Commercial Code as in effect
in the State as may be necessary or appropriate) to be recorded, registered and
filed and kept recorded, registered and filed in such manner and in such places
as appropriate, and comply with all applicable statutes and regulations, in
order to establish, preserve and protect the estate created hereby and the
rights of Mortgagee hereunder. Mortgagor shall pay, or shall cause to be paid,
all taxes, fees and other charges incurred in connection with such recording,
registration, filing and compliance;
(b) Maintenance and Repairs. Keep and maintain the Property in
good order, repair and operating condition (ordinary wear and tear excepted) and
make all repairs and replacements necessary to that end;
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(c) Payment of Impositions and Utility Charges. Pay all
Impositions while the same may be paid without fine, penalty, interest or
additional cost, unless the sale shall be contested in good faith and by
appropriate proceedings by Mortgagor in the manner permitted by the Loan
Agreement. Any Impositions which are payable in installments may be paid in
installments provided that Mortgagee is otherwise in compliance with the Loan
Agreement. Upon the written request of Mortgagee from time to time, Mortgagor
will furnish to Mortgagee official receipts or other satisfactory proof
evidencing such payments. In addition, Mortgagor will pay all utility charges as
required by the Loan Agreement. Mortgagor shall not be entitled to any credit on
the Obligations, by reason of the payment of any Imposition or utility charges
or any part thereof;
(d) Compliance with Governmental Requirements. Promptly (i) comply
with all Governmental Requirements unless the same shall be contested in good
faith and by appropriate proceedings by Mortgagor in the manner permitted by the
Loan Agreement, and (ii) procure, maintain and comply with all licenses or other
authorizations required for any use of the Property then being made, and for the
proper erection, installation, operation, repair and maintenance of the
Improvements and the Fixtures, or any part of either thereof;
(e) Insurance. Maintain insurance of the types and in the amounts
required by, and otherwise complying with the Loan Agreement and promptly
deliver, or cause to be promptly delivered, to Mortgagee any certificates or
evidence of such insurance as required under the Loan Agreement;
(f) Damage, Destruction or Taking. In the event of any damage,
destruction or Taking affecting all or any portion of the Property, Mortgagor
shall give immediate written and oral notice thereof to Mortgagee and proceed in
accordance with the terms of the Loan Agreement. In case of any such material
damage, destruction or Taking, Mortgagee shall be entitled to hold all insurance
proceeds, payments or awards on account thereof, to the same extent Mortgagor
would be entitled thereto under the Loan Agreement, and Mortgagor hereby
irrevocably assigns to Mortgagee all of its rights to any such insurance
proceeds, payments or awards. With respect to a Taking, and in accordance with
its obligations under the Loan Agreement, Mortgagor will file or prosecute or
will cause to be filed or prosecuted in good faith and with due diligence what
would otherwise be its claim for any such award or payment and cause the same to
be collected and paid over to Mortgagee. At the sole cost and expense of
Mortgagor, Mortgagee may elect to monitor or participate in, and if reasonably
necessary, may hire independent legal counsel to represent Mortgagee in
connection with, any claim or the claims payment process. Mortgagor will pay or
cause to be paid all costs and expenses reasonably incurred in connection with
any Taking and the seeking and obtaining of any award or payment in respect
thereof. Unless an Event of Default shall have occurred under the Loan
Agreement, all sums so received by Mortgagee shall be applied in accordance with
the provisions of the Loan Agreement; and
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(g) Notification of Default, Etc. Promptly after obtaining
knowledge thereof, notify Mortgagee of any Default hereunder or under the Loan
Agreement or of any action or proceeding materially and adversely affecting the
Property.
(h) Corporate Existence. Preserve and keep in full force and
effect its corporate existence, rights and franchises and privileges as a
corporation under the laws of the State of South Carolina and comply with all
laws applicable to it, and do or cause to be done all things necessary to
preserve and to keep in full force and effect its right to own property in the
State of South Carolina.
(i) Inspection. Permit the Mortgagee or its authorized
representatives to inspect the Property during usual business hours.
ARTICLE IV
4. Negative Covenants. Without the prior written consent of
Mortgagee, Mortgagor will not directly or indirectly create or permit to be
created or to remain and will discharge or will cause to be discharged any
mortgage, charge, lien or encumbrance on, or attachment or pledge of, or
conditional sale or other title retention agreement with respect to, the
Property or any part thereof, its interest or the interests of Mortgagee
therein, or the Rents or other sums payable pursuant to the Leases, except (i)
this Mortgage; (ii) the Permitted Encumbrances; (iii) easements, restrictions,
liens, charges and other encumbrances permitted by the Loan Agreement; (iv)
liens being contested in good faith and by appropriate proceedings in the manner
permitted by the Loan Agreement; and (v) liens arising out of or created by any
statute, the discharge of which cannot order the terms of such statute at the
particular time be effected by Mortgagor; provided, however, that any such
statutory liens will promptly be discharged as and when such discharge is
possible or permissible. Mortgagor shall have the right to grant, without the
prior consent of Mortgagee, any utility easement.
ARTICLE V
5. Events of Default. Any of the following events (each a
"Default") shall, following the passage of any grace or cure period as provided
below, constitute an Event of Default ("Event of Default"):
(a) Mortgagor shall fail to make any payment of principal under
any of the Notes on or before the same becomes due and payable on maturity
thereof; or Mortgagor shall fail to make any payment of interest under any of
the Notes, or any fees, costs or expenses due hereunder or thereunder, within 5
days after the same becomes due and payable;
(b) Any representation or warranty made by Mortgagor (or any of
its officers) under or in connection with any Loan Document shall be or become
incorrect or untrue, or shall prove to have been incorrect or misleading in any
material respect when made;
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(c) Mortgagor shall fail to perform or observe any term, covenant
or agreement (other than a covenant of payment) contained in any Loan Document
on its part to be performed or observed, and such failure shall remain uncured
for 10 days after written notice thereof shall have been given by Mortgagee to
Mortgagor, or if such failure cannot by its nature be cured within 10 days after
written notice thereof shall have been given by Mortgagor and shall fail to
complete such cure within 60 days after Mortgagee's initial written notice of
such failure;
(d) An involuntary case or proceeding under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect shall be
commenced against Mortgagor, and such case or proceeding shall not be dismissed
in 60 days; or a court shall enter an order, appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator, supervisor,
rehabilitator (or similar official) of Mortgagor or for any substantial part of
its property, or ordering the winding-up, supervision or liquidation of its
affairs;
(e) Mortgagor shall commence a voluntary case or proceeding under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
or proceeding under any such law, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator, supervisor, rehabilitator (or other similar official)
of Mortgagor or for any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall fail generally to pay
its indebtedness generally as the same becomes due, or shall take any corporate
action in furtherance of any of the foregoing;
(f) A judgment or order for the payment of money in excess of
$2,500,000 shall be rendered against Mortgagor and either (A) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (B) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect;
(g) A Default has occurred and is continuing beyond any applicable
grace or cure period under any Debt (other than the Loan) in excess of
$2,500,000.00;
(h) Any material provision of the Loan Documents relating to
Mortgagee's ability to realize on the Collateral following an Event of Default
shall for any reason cease to be valid and binding on Mortgagor, or Mortgagor
shall so state in writing; and
(i) This Mortgage shall, as a result of Mortgagor's acts or
omissions, for any reason, except to the extent permitted by the terms thereof,
cease to create a valid and, upon filing of UCC-1 financing statement(s), UCC-2
Notice Filings, or UCC-3 continuation statements, as applicable, perfected first
priority security interest in any of the Collateral purported to be covered,
which can be so secured or perfected.
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ARTICLE VI
6. Remedies in Case of Event of Default. Upon the occurrence of
Default, the following remedies are available, without limitation, to Mortgagee:
(a) Mortgagee may exercise all of Mortgagee's remedies under this
Mortgage or other Loan Documents including, without limitation, acceleration of
maturity of all payments and Obligations which shall immediately become due and
payable without demand or notice;
(b) Mortgagee may take immediate possession of the Property or any
part thereof (which Mortgagor agrees to surrender to Mortgagee) and manage,
control or lease the same to such persons and at such rental as it may deem
proper and collect and apply Rents as provided herein. The taking of possession
shall not prevent concurrent or later proceedings for the foreclosure sale of
the Property;
(c) Mortgagee may apply to any court of competent jurisdiction for
the appointment of a receiver for all purposes including, without limitation, to
manage and operate the Property or any part thereof, and to apply the net Rents
therefrom to the payment of any of the Obligations. In event of such
application, Mortgagor consents to the appointment of a receiver, and agrees
that a receiver may be appointed without notice to Mortgagor, without regard to
the adequacy of any security for the Obligations, and without regard to the
solvency of Mortgagor or any other person, firm or corporation who or which may
be liable for the payment of the Obligations;
(d) All the remedies of a mortgagee and a secured party as
provided by law and in equity including, without limitation, foreclosure upon
this Mortgage and sale of the Property, or any part of the Property, at a public
sale conducted according to applicable law (referred to as "Sale") and conduct
additional Sales as may be required until all of the Property is sold or the
Obligations are satisfied;
(e) Mortgagee may bid at Sale and may accept, as successful
bidder, credit of the bid amount against the Obligations as payment of any
portion of the purchase price;
(f) Mortgagee shall apply the proceeds of Sale, first to any fees
or attorney fees permitted Mortgagee by law in connection with Sale, second to
expenses of foreclosure, publication, and sale permitted Mortgagee by law in
connection with Sale, third to the Obligations, and any remaining proceeds as
required by law;
(g) Mortgagee is authorized to foreclose this Mortgage subject to
the rights of any tenants of the Property, and the failure to make any such
tenants parties defendant to any such foreclosure proceedings and to foreclose
their rights will not be, a defense to any proceedings instituted by Mortgagee
to collect the sums secured hereby or to collect any deficiency remaining unpaid
after the foreclosure sale of the Property;
(h) Mortgagee shall have the power and authority to institute and
maintain any suits and proceedings as Mortgagee may deem advisable (i) to
prevent any impairment of
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the Property by any acts which may be unlawful or any violation of this
Mortgage, (ii) to preserve or protect its interest in the Property, and (iii) to
restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
might impair the security hereunder or be prejudicial to Mortgagee's interest;
(i) If Mortgagee shall have proceeded to enforce any right or
remedy under this Mortgage by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, then and
in every such instance, Mortgagor and Mortgagee shall, except to the extent
modified by such proceedings, be restored to their former positions and rights
hereunder, and all rights, powers and remedies of Mortgagee shall continue as if
no such proceeding had occurred or had been taken;
(j) Upon Mortgagee's demand, Mortgagor will pay to Mortgagee the
whole amount due and payable under the Loan Agreement and all other sums secured
hereby. If Mortgagor shall fail to pay the same forthwith upon such demand,
Mortgagee shall be entitled to sue for and to recover judgment for the whole
amount so due and unpaid together with costs and expenses, including the
reasonable compensation, expenses and disbursements of Mortgagee's agents,
attorneys and other representatives. Mortgagee shall be entitled to sue and
recover judgment as aforesaid either before, after or during the pendency of any
proceedings for the enforcement of this Mortgage, and the right of Mortgagee to
recover such judgment shall not be affected by any taking of possession or
foreclosure sale hereunder, or by the exercise of any other right, power or
remedy for the enforcement of the terms of this Mortgage, or the foreclosure of
the estate created hereby;
(k) In case of a foreclosure sale of all or any part of the
Property and of the application of the proceeds of sale to the payment of the
sums secured hereby, Mortgagee shall be entitled to enforce payment of and to
receive all amounts then remaining due and unpaid and to recover judgment for
any portion thereof remaining unpaid, with interest. Mortgagor hereby agrees, to
the extent permitted by law, that no recovery of any such judgment by Mortgagee
and no attachment or levy of any execution upon any of the Property or any other
property shall in any way affect the estate created hereby upon the Property or
any part thereof or any lien, rights, powers or remedies of Mortgagee hereunder,
but such lien, rights, powers and remedies of Mortgagee hereunder shall continue
unimpaired as before; and
(l) Mortgagee may enter upon and take possession of the Property
or any part thereof, in any manner permitted by law, by reasonable force,
summary proceedings, ejectment or otherwise and may remove Mortgagor and all
other Persons and any and all property therefrom, and Mortgagee may hold,
operate and manage the same, make all necessary or proper repairs, renewals, and
replacements, and useful alterations, additions, betterments and improvements
thereto and thereon as may seem advisable to either of them, and insure and
reinsure the Property as may seem advisable and to either of them, and may
receive all earnings, income, rents, issues and proceeds accruing with respect
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thereto. Any amounts so received by Mortgagee shall be applied to pay the
expenses of operating the Property and of all maintenance, repairs, renewals,
replacements, alterations, additions, betterments, improvements, taxes,
assessments, insurance premiums, reasonable compensation for the services of all
attorneys, advisors, brokers, receivers, agents and other employees engaged or
employed by Mortgagee and all other costs and expenses of entering a bond and
taking possession of and holding the Property, and then in the manner provided
in Article VII of this Mortgage. If an Event of Default shall have occurred
under the Loan Agreement or if the Loan Agreement shall be terminated, all sums
so received by Mortgagee shall be applied in the manner specified in Article VII
of this Mortgage.
ARTICLE VII
7. Application of Proceeds. The proceeds of (a) of the operation
and management of the Property; and (b) any sale of the Property or any interest
therein, shall, unless otherwise provided in the Loan Agreement, be applied as
follows:
First: to the costs and expenses of the sale, reasonable attorneys'
fees and expenses, court costs, and any other expenses or advances made or
incurred in the protection of the rights of Mortgagee or in the pursuance of any
remedies hereunder;
Second: to any lien prior to the estate created hereby which Mortgagee
may consider it necessary or desirable to discharge;
Third: to any Obligations secured by this Mortgage and at the time due
and payable (whether by acceleration or otherwise);
Fourth: to Mortgagee for payment of the Notes outstanding; and
Fifth: the balance, if any, to Mortgagor.
ARTICLE VIII
8. Change in Method of Taxation. In the event of the passage,
after the date of this Mortgage, of any law changing in any way the laws now in
force for the taxation of mortgages or debts secured thereby, for state or local
purposes, or the operation of any such taxes so as to adversely affect the
interest of Mortgagee in the Property, this Mortgage or the Loan Agreement,
Mortgagor shall, upon demand, bear and pay the full amount (or any partial
amount) requested by Mortgagee, of taxes resulting from such changes hereunder
without offset or credit against any other sums due under the Loan Agreement or
on the Notes.
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ARTICLE IX
9. Future Advances. This Mortgage is given to secure not only
existing Obligations, but also future advances made within fifteen (15) years of
the date of this Mortgage to the same extent as if such future advances are made
on the date of the execution of this Mortgage. The principal amount (including
any swap agreements and future advances) that may be so secured may decrease or
increase from time to time, but the total amount so secured at any one time
shall not exceed twice the face amount of the Notes, plus all interest, costs,
reimbursements, fees and expenses due under this Mortgage and secured, hereby.
Mortgagor shall not execute any document that impairs or otherwise impacts the
priority of any future advances secured by this Mortgage.
ARTICLE X
10. Assignment of Leases and Rents. Mortgagor hereby grants,
transfers and assigns to Mortgagee Mortgagor's entire right, title and interest
in and to the Leases and Rents. This assignment of Leases and Rents by Mortgagor
to Mortgagee is intended to operate as an absolute and immediate assignment of
such Leases and Rents.
10.1. Mortgagor's Representations and Warranties Regarding
Assignment of Leases and Rents. Mortgagor represents and warrants to Mortgagee
as follows:
(a) Mortgagor has good and lawful right, title and interest in and
to the Leases, is entitled to receive the Rents from the Leases and from the
Property, has full power and authority to assign the Leases as provided herein
and to grant to and confer upon Mortgagee the powers, interests and authority
set forth herein, and has not assigned the Leases or Rents to any other party;
(b) Mortgagor has neither done any act nor omitted to do any act
which might prevent Mortgagee from, or limit Mortgagee in, acting under any of
the provisions of this assignment of Leases and Rents;
(c) All Leases provide for Rent to be paid monthly, in advance,
and Mortgagor has not accepted and will not accept payment of Rent for more than
one (1) month in advance; provided, however, Mortgagor may accept payment of
Rent two (2) months in advance if such Rent accepted two (2) months in advance
does not exceed five (5%) percent of the Rent collected during the applicable
month; and there are no agreements, understandings, or undertakings by Mortgagor
providing for free or reduced Rent in the past or in the future except as
provided in the Leases;
(d) Except as disclosed to Mortgagee in writing, Mortgagor is not
now in default, the nature of which could have a material adverse impact on the
financial condition of Mortgagor or the value of the Property, under any
provision of any of the Leases, and no tenant under any of the Leases has
claimed or asserted any defense, offset, counter-claim, or abatement of rent,
and that the Leases remain in full force and effect. Mortgagor further
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represents and warrants that it has no knowledge of any default by any tenant
under any of the Leases that could materially adversely affect the value of the
Property;
(e) This Assignment of Leases and Rents, the Leases, the
performance of each and every covenant of Mortgagor under the Leases, and the
enforcement by Mortgagee of its rights hereunder does not conflict with, or will
not conflict with, and does not constitute or will not constitute a breach or
default, under any agreement, Mortgage or other instrument to which Mortgagor is
a party, or so far as is known to Mortgagor, any law, ordinance, administrative
regulation or court decree which is applicable to Mortgagor; and
(f) No action has been brought or, so far as is known to
Mortgagor, is threatened, which could interfere in any way with the right of
Mortgagor to execute and deliver this assignment of Leases and Rents, and to
perform all of Mortgagor's obligations contained in this assignment of Leases
and Rents and in the Leases; and
(g) to Mortgagor's knowledge, the Leases are valid, enforceable
and in full force and effect.
10.2. Mortgagor's Covenants Regarding Assignment of Leases and
Rents. Mortgagor hereby covenants and agrees to and with Mortgagee as follows:
(a) Mortgagor will notify Mortgagee in writing (but without any
right of approval or denial on the part of Mortgagee) of any termination,
substitution or material modification of any Leases involving 10,000 or more
Koger Net Square Feet (as defined in the Loan Agreement);
(b) Mortgagor hereby acknowledges that any and all Rents collected
or received by Mortgagor after the occurrence of an Event of Default will be the
property of Mortgagee, which if received and collected by Mortgagor, will be
considered received and collected on Mortgagee's behalf and as Mortgagee's
agent, and will be held by Mortgagor in trust for the benefit of Mortgagee, and
Mortgagor will deliver all such sums to Mortgagee immediately upon Mortgagor's
request therefor;
(c) In accordance with sound business judgment, Mortgagor will use
its reasonable best efforts, at its cost and expense, to observe, perform and
discharge, or cause to be observed, performed and discharged, all of the
obligations and undertakings of Mortgagor or its agents under the Leases, and
will use its best efforts, in accordance with sound business judgment, to
enforce or secure, or cause to be enforced or secured, the performance of each
and every obligation and undertaking of the respective tenants under the Leases,
and will appear in and defend, at its cost and expense, any action or proceeding
arising under or in any manner connected with the Leases or the obligations and
undertakings of any tenant thereunder. Mortgagor will not do or permit to be
done anything to impair the security thereof, including without limitation the
execution of any other assignment or Mortgagor's interest in the Leases or the
Rents, without Mortgagee's prior written consent;
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(d) Mortgagor authorizes and directs each and every present and
future tenant under the Leases to pay all Rent to Mortgagee upon receipt of
written demand from Mortgagee to so pay the same, and upon paying the same, such
tenants will be relieved from all liability to Mortgagor for such Rental in all
respects. To the extent not so provided by applicable law, each Lease will
provide that, in the event of enforcement by Mortgagee of the remedies provided
for by law or by this assignment of Leases and Rents, the tenant thereunder
will, upon request of any person succeeding to the interest of Mortgagor as a
result of such enforcement, automatically become the tenant of said successor in
interest, without change in the terms or other provisions of such Lease. Any
such successor in interest will not be bound by any payment of rent or
additional rent made more than one (1) month in advance;
(e) This Assignment of Leases and Rents will not obligate
Mortgagee to take any action or to incur expenses or perform or discharge any
obligation, duty or liability of Mortgagor under any Lease, or for the control,
care, management, or repair of the Property; nor will it operate to make
Mortgagee responsible or liable for any waste committed on the Property by the
tenants or any other parties or for any dangerous or defective condition of the
Property, or for any act or omission relating to the management, upkeep, repair,
or control of the Property that results in loss or injury or death to any
person. Mortgagee will not be liable for any loss sustained by Mortgagor
resulting from Mortgagee's failure to lease the Property after default.
Mortgagor will and does hereby indemnify and agree to hold harmless Mortgagee
from and against any and all liability, loss, cost, damage or expense which may
be incurred under the Leases or by reason of this assignment of Leases and Rents
and from any and all claims and demands whatsoever which may be asserted against
Mortgagee by reason of any alleged obligations or undertakings on its part to
perform or discharge any of the terms, covenants, or agreements contained in the
Leases except to the extent the same is caused by the negligence of Mortgagee.
Should Mortgagee incur any such liability under the Leases or by reason of this
assignment of Leases and Rents or in defense of any such claims or demands, the
amount thereof, including costs, expenses, and reasonable attorney and paralegal
fees and costs, will be secured hereby and Mortgagor will reimburse Mortgagee
therefor immediately upon demand and upon the failure of Mortgagor so to do,
Mortgagee may, at this option, declare all sums secured hereby immediately due
and payable, or may charge the costs thereof to Mortgagor as an advance under
the Notes; and
(f) This assignment of Leases and Rents is made without prejudice
to any of the rights and remedies possessed by Mortgagee under the Loan
Agreement, and the right of Mortgagee to exercise its remedies under this
assignment of Leases and Rents may be exercised by Mortgagee either prior to,
simultaneously with, or subsequent to any action taken by it under the Loan
Agreement. Each and every right, remedy and power granted to Mortgagee by this
assignment of Leases and Rents will be cumulative and in addition to any other
right, remedy and power given by the Loan Agreement now or hereafter existing in
equity, at law or by virtue of statute or otherwise. Nothing contained in this
assignment of Leases and Rents, and no act done or omitted by Mortgagee pursuant
to the powers and rights granted it hereunder, nor the failure of Mortgagee to
avail itself of
15
<PAGE> 17
any of the rights and remedies under this assignment of Leases and Rents, will
be construed or deemed to be a waiver of any of Mortgagee's rights and remedies
under this assignment of Leases and Rents, nor will such exercise or omission to
exercise of the power and rights granted Mortgagee hereunder be deemed to
constitute a waiver of its rights and remedies under the Loan Agreement.
10.3. Mortgagee's Covenants Regarding Assignment of Leases and
Rents. Mortgagee hereby covenants and agrees to and with Mortgagor as follows:
(a) Although this assignment of Leases and Rents constitutes a
present and absolute assignment of the Leases and the Rents, so long as there is
no Event of Default on the part of Mortgagor, Mortgagee will not require that
such Rents be paid directly to Mortgagee, and Mortgagor will have a license to
collect and use the Rents for subsequent application as provided above; and
(b) Upon the payment and performance in full of Mortgagor's
obligations under the Loan Agreement, as evidenced by the recording or filing of
an instrument of satisfaction or termination of this Mortgage without the
recording of another security instrument in favor of Mortgagee affecting the
Property, this assignment of Leases and Rents will be deemed terminated and
released of record by Mortgagee and thereupon will be null and void and of no
further force or effect.
10.4. Further Assurances. At Mortgagee's request, Mortgagor will
assign and transfer to Mortgagee any and all subsequent Leases upon all or any
part of the Property and to execute and deliver at the request of Mortgagee all
such further assurances and assignments in the Leases and the Rents as Mortgagee
will require from time to time in its sole discretion.
10.5. Subordination, Nondisturbance and Attornment. The Leases are
and at all times shall be subject and subordinate in all respects to this
Mortgage, and to all renewals, modifications, amendments, consolidations,
replacements, refinancings and extensions of this Mortgage, to the full extent
of all principal, interest and all other amounts secured hereby. Provided that a
tenant is not in default under its Lease, Mortgagee shall not disturb the
occupancy of such tenant under its Lease during the term of such Lease,
notwithstanding foreclosure of this Mortgage, acceptance of a deed in lieu of
foreclosure or exercise of any other remedy provided herein, or pursuant to the
laws of the State of South Carolina. If requested by a tenant under any of the
Leases or upon Mortgagee's request, Mortgagor shall enter into a subordination,
nondisturbance and attornment agreement (reasonably acceptable in form and
substance to Mortgagee) with such tenant whereby Mortgagee will agree to not
disturb the tenant in its possession of the Property provided such tenant is not
in default under its Lease and the tenant will agree to attorn to Mortgagee if
Mortgagee takes possession of the Property.
16
<PAGE> 18
ARTICLE XI
11. Security Agreement.
(a) This Mortgage is hereby made and declared to be a security
agreement, encumbering each and every item of personal property included herein,
in compliance with the provisions of the Uniform Commercial Code as enacted in
the State. A financing statement or statements reciting this Mortgage to be a
security agreement, affecting all of said personal property aforementioned,
shall be executed by Mortgagor and appropriately filed. The remedies for any
violation of the covenants, terms and conditions of the security agreement
herein contained shall be (i) as prescribed herein, or (ii) as prescribed by
general law, or (iii) as prescribed by the specific statutory consequences now
or hereafter enacted and specified in said Uniform Commercial Code, all at
Mortgagee's sole election. Mortgagor and Mortgagee agree that the filing of such
financing statement(s) in the records normally having to do with personal
property shall never be construed as in any way derogating from or impairing
this declaration and hereby stated intention of Mortgagor and Mortgagee that
everything used in connection with the production of income from the Property
and/or adapted for use therein and/or which is described or reflected in this
Mortgage, is, and at all times and for all purposes and in all proceedings both
legal or equitable shall be, regarded as part of the Property irrespective of
whether (i) any such item is physically attached to the improvements, (ii)
serial numbers are used for the better identification of certain items capable
of being thus identified in a recital contained herein, or (iii) any such item
is referred to or reflected in any such financing statement(s) of the rights in
and to (aa) the proceeds of any fire and/or hazard insurance policy, or (bb) any
award in eminent domain proceeds for a taking or for loss of value, or (cc)
Mortgagor's interest as lessor in any present or future lease or rights to
income growing out of the use and/or occupancy of the Property, whether pursuant
to lease or otherwise shall never be construed as in any way altering any of the
rights of Mortgagee as determined by this instrument impugning the priority of
Mortgagee's estate granted hereby or by any other recorded document, but such
mention in such financing statement(s) is declared to be for the protection of
Mortgagee in the event any court shall at any time hold with respect to the
foregoing (aa), (bb) or (cc), that notice of Mortgagee's priority of interest to
be effective against a particular class of persons, must be filed in the Uniform
Commercial Code records.
(b) Mortgagor warrants that (i) Mortgagor's (that is "Debtor's")
name, identity or corporate structure and residence or principal place of
business are as set forth in Exhibit C hereto; (ii) Mortgagor (that is,
"Debtor") has been using or operating under said name, identity or corporate
structure without change for the time period set forth in Exhibit C hereto; and
(iii) the location of the collateral is upon the Property. Mortgagor covenants
and agrees that Mortgagor will furnish Mortgagee with notice of any change in
the matters addressed by clauses (i) or (iii) of this subparagraph (b) within
thirty (30) days of the effective date of any such change and Mortgagor will
promptly execute any financing statements or other instruments deemed necessary
by Mortgagee to prevent any filed financing statement from becoming misleading
or losing its perfected status.
17
<PAGE> 19
(c) The information contained in this subparagraph (c) is provided
in order that this Mortgage shall comply with the requirements of the Uniform
Commercial Code, as enacted in the State of South Carolina, for instruments to
be filed as financing statements. The names of the "Debtor" and the "Secured
Party," the identity or corporate structure and residence or principal place of
business of "Debtor," and the time period for which "Debtor" has been using or
operating under said name and identity or corporate structure without change,
are as set forth in Exhibit C attached hereto and by this reference made a part
hereof; the mailing address of the "Secured Party" from which information
concerning the security interest may be obtained, and the mailing address of
"Debtor" are as set forth in Exhibit C attached hereto; and a statement
indicating the types, or describing the items, of collateral are set forth
hereinabove.
ARTICLE XII
12. Approval of Legal Description. Mortgagor has read and does
hereby approve the legal description of the Land which is the subject hereof, as
set forth in Exhibit A attached hereto, and hereby indemnifies Mortgagee and its
attorneys with respect to any liability which might arise as a consequence of
any error or omission therein.
ARTICLE XIII
13. Loan Agreement. The terms, provisions, conditions,
representations and warranties and covenant of the Loan Agreement are
incorporated herein by reference. In the event of a conflict between this
Mortgage and the Loan Agreement, the Loan Agreement shall control.
ARTICLE XIV
14. Miscellaneous. The following miscellaneous provisions shall
apply:
14.1. Each legal, equitable or contractual right, power or remedy of
Mortgagee now or hereafter provided herein or by statute or otherwise shall be
cumulative and concurrent and shall be in addition to every other right, power
and remedy, and the exercise or beginning of the exercise by Mortgagee of any
one or more of such rights, powers and remedies shall not preclude the
simultaneous or later exercise of any or all such other rights, powers and
remedies.
14.2. No failure by Mortgagee to insist upon the strict performance
of any term hereof or to exercise of any right, power or remedy consequent upon
a breach hereof shall constitute a waiver of any such term or of any such
breach. No acceptance of the payment of any sums due under this Mortgage or
under the Loan Agreement during the continuance of any Default shall affect or
alter this Mortgage which shall continue in full force and effect with respect
to any other then existing or subsequent breach.
18
<PAGE> 20
14.3. If Mortgagor shall fail to make any payment or perform any act
required to be made or performed hereunder and such failure shall not be cured
within the applicable grace period, if any, Mortgagee, without notice to or
demand upon Mortgagor and without waiving or releasing any obligation or
Default, may (but shall be under no obligation to) at any time thereafter make
such payment or perform such act for the account and at the expense of Mortgagor
and may enter upon the Property or any part thereof for such purpose and take
all such action thereon as, in the opinion of Mortgagee, may be necessary or
appropriate therefor. All sums so paid by Mortgagee and all costs and expenses
(including, without limitation, attorneys' fees and expenses) so incurred shall
constitute additional Obligations secured by this Mortgage and shall be paid by
Mortgagor to Mortgagee on demand.
14.4. At any time and from time to time, Mortgagor will deliver to
Mortgagee, promptly upon request, a certificate signed by a duly authorized
officer of Mortgagor stating that, to the best of the signer's knowledge after
making due inquiry, there is no Default hereunder, or if any such Default exists
to his knowledge, specifying the nature and period of existence thereof and what
action Mortgagor is taking or proposes to take with respect thereto. Mortgagor
will also furnish promptly to Mortgagee, such information with respect to the
Property and the Leases as may from time to time be requested.
14.5. Mortgagor, at its expense, will execute, acknowledge, secure
and deliver all such instruments and take all such action as Mortgagee from time
to time may reasonably request for the better assuring of the Property, rights
and obligations now or hereafter subjected to the security of this Mortgage or
intended so to be.
14.6. This Mortgage and the estate created hereby shall terminate
after the payment in full of (a) all the Obligations and (b) all other sums
secured hereby. Upon such termination and upon surrender of this Mortgage for
cancellation, Mortgagee shall release the Property then subject to the estate
created hereby to the Persons entitled thereto. The recitals in any satisfaction
executed under this Mortgage of any matters of fact shall be conclusive proof of
the truthfulness thereof. The Mortgagee in such release may be described as "the
person or persons legally entitled thereto." Mortgagee, at Mortgagor's expense,
shall execute and deliver such instruments of release, satisfaction and
termination in proper form for recording or filing, as may be appropriate to
evidence the release of (a) the Property from the estate created hereby, and (b)
any other security held by Mortgagee and such satisfaction and termination, and
such instruments, when duly
14.7. executed, recorded and filed, shall conclusively evidence the
release, satisfaction and termination of this Mortgage.
14.8. This Mortgage shall be governed by and construed in accordance
with the laws of the State.
14.9. All rights, power and remedies provided herein may be
exercised only to the extent that the exercise thereof does not violate any
applicable law, and are intended to
19
<PAGE> 21
be limited to the extent necessary so that they will not render this Mortgage
invalid, unenforceable or not entitled to be recorded, registered or filed under
any applicable law. If any term or provision of this Mortgage shall be held to
be invalid, illegal or unenforceable, the validity of the other terms and
provisions hereof shall in no way be affected thereby.
14.10. This Mortgage may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought, and shall be binding
upon Mortgagor, its successors and assigns, and all Persons claiming under or
through Mortgagor or any such successor or assign, and shall inure to the
benefit of and be enforceable by Mortgagee and its successors and assigns.
14.11. The headings in this Mortgage are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
14.12. All agreements between Mortgagor and Mortgagee, whether now
existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of demand or acceleration of the
maturity of any payments hereunder or under the Loan Agreement or otherwise,
shall the interest contracted for, charged, received, paid or agreed to be paid
to Mortgagee exceed the maximum amount permissible under applicable law. If, in
any circumstance whatsoever, interest would otherwise be payable to Mortgagee in
excess of the maximum lawful amount, and if in any circumstance Mortgagee shall
ever receive anything of value deemed interest by applicable law in excess of
the maximum lawful amount, an amount equal to any excessive interest shall be
applied to the reduction of advances under the Loan Agreement and not to the
payment of interest, or if such excessive interest exceeds the unpaid advances
under the Loan Agreement, such excess shall be refunded to Mortgagor. All
interest paid or agreed to be paid to Mortgagee shall, to the extent permitted
by applicable law, be amortized, prorated, allocated, and spread throughout the
full period until payment in full of the principal so that the interest hereon
for such full period shall not exceed the maximum amount permitted by applicable
law. This paragraph shall control all agreements between Mortgagor and
Mortgagee.
14.13. This Mortgage may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
ARTICLE XV
15. WAIVER OF MORTGAGOR'S RIGHTS. BY EXECUTION OF THIS MORTGAGE,
MORTGAGOR EXPRESSLY (A) ACKNOWLEDGES THE RIGHT TO ACCELERATE THE OBLIGATIONS
SECURED HEREBY; AND (B) ACKNOWLEDGES THAT MORTGAGOR HAS READ THIS MORTGAGE AND
ANY AND ALL QUESTIONS REGARDING THE LEGAL EFFECT OF THIS MORTGAGE AND ITS
PROVISIONS HAVE BEEN EXPLAINED FULLY TO MORTGAGOR AND MORTGAGOR HAS CONSULTED
WITH COUNSEL OF MORTGAGOR'S CHOICE PRIOR TO EXECUTING THIS MORTGAGE.
20
<PAGE> 22
ARTICLE XVI
16. WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE, BY ITS
ACCEPTANCE HEREOF, EACH ACKNOWLEDGE AND AGREE THAT NEITHER MORTGAGOR NOR
MORTGAGEE, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF ANY OF
THE SAME, WILL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR
ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS MORTGAGE, THE
NOTES, THE LOAN AGREEMENT OR THE LOAN DOCUMENTS, ANY COLLATERAL, OR THE DEALINGS
OR THE RELATIONSHIP BETWEEN MORTGAGOR AND MORTGAGEE RELATED THERETO. NEITHER OF
THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN
WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE
BEEN FULLY NEGOTIATED BY MORTGAGOR AND MORTGAGEE, ARE MADE KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT FOR
MORTGAGEE TO MAKE THE LOAN TO MORTGAGOR, AND WILL BE SUBJECT TO NO EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
21
<PAGE> 23
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be executed,
sealed, and attested by its proper officers thereunto duly authorized, as of the
day and year first above written.
WITNESSES: KOGER EQUITY, INC., a Florida
corporation
/s/ Janice R. Long
- -----------------------------
Name: Janice R. Long By: /s/ G. Danny Edwards (SEAL)
------------------------ --------------------------------------
Name: G. Danny Edwards
---------------------------------
Title: Treasurer
/s/ Alan C. Sheppard, Jr. -------------------------------
- -----------------------------
Name: Alan C. Sheppard, Jr.
------------------------
STATE OF Georgia )
) PROBATE
COUNTY OF Camden )
PERSONALLY appeared before me the undersigned witness who after first
being duly sworn, deposes and says that s/he saw the within-named KOGER EQUITY,
INC., by G. Danny Edwards, its Treasurer, sign seal and as its act and deed,
deliver the within-written Mortgage, Assignment of Leases and Rents, and
Security Agreement for the uses and purposes therein mentioned, and that s/he
together with the other witness whose signature appears above, witnessed the
execution thereof.
/s/ Janice R. Long
----------------------
WITNESS
SWORN TO BEFORE ME THIS
30th day of December, 1998.
- ----
/s/ Dee Price (L.S.)
- ---------------------------------------------
Notary Public for Georgia
My commission expires: Feb. 1, 1999
-----------------------
Notary Public, Camden County, Georgia
22
<PAGE> 24
EXHIBIT A
The Land
<PAGE> 25
EXHIBIT B
Permitted Encumbrances
<PAGE> 26
EXHIBIT C
DEBTOR
NAME: Koger Equity, Inc.
CORPORATE
STRUCTURE: a Florida corporation
PRINCIPAL PLACE 3986 Boulevard Center Drive #101
OF BUSINESS: Jacksonville, Florida 32207
TIME PERIOD USING June 21, 1988, to present
NAME WITHOUT CHANGE
SECURED PARTY
NAME: First Union National Bank, as Agent
PRINCIPAL PLACE 301 South College Street
OF BUSINESS: Charlotte, North Carolina 28288
<PAGE> 1
THIS INSTRUMENT PREPARED BY EXHIBIT 10(k)(6)(a)
AND RECORD AND RETURN TO:
Alan C. Sheppard, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, FL 32202-3650
- --------------------------------------------------------------------------------
AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK,
AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
THIS AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS (this "Amendment") is
made and executed as of this 30th day of December, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Assignor"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Assignee") for the
Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement of even date herewith (the "Loan Agreement")
which terms Assignor and Assignee, whenever hereinafter used will be construed
to refer to and include the heirs, legal representatives, executors,
administrators, successors and assigns of said parties. For purposes of notices
permitted or required to be given hereunder, Assignee's mailing address is 301
South College Street, Charlotte, North Carolina 28288 Attention:
First Union Capital Markets Group.
RECITALS:
A. Assignor is the mortgagor under that certain Mortgage,
Assignment of Leases and Rents and Security Agreement given by Assignor to the
mortgagees defined therein, dated December 29, 1997, and recorded in Official
Records Book 2979, Page 338, of the public records of Greenville County, South
Carolina (the "Mortgage"), which Mortgage secured that certain (i) Substitution
Revolving Promissory Note dated December 29, 1997 made by Assignor payable to
the order of First Union National Bank ("FUNB") in the principal amount of
$35,000,000; (ii) Substitution Revolving Promissory Note dated December 29, 1997
made by Assignor payable to the order of Morgan Guaranty Trust Company of New
York in the principal amount of $15,000,000; (iii) Revolving Promissory Note
dated December 29, 1997 made by Assignor payable to the order of AmSouth Bank
("AmSouth") in the principal amount of $25,000,000, and (iv) Revolving
Promissory Note dated December 29, 1997 made by Assignor payable to the order of
Guaranty Federal Bank, F.S.B. ("GFB") in the principal amount of $25,000,000
(collectively, the "Prior Notes"), encumbering certain real property interests
located in Greenville County, South Carolina as more particularly described on
attached Exhibit A (the "Premises").
B. To further secure the payment and performance of the Prior
Notes, Assignor agreed to execute and deliver to Assignee that certain
Assignment of Leases and Rents dated as of December 29, 1997, which was recorded
in Official Records Book 1737, Page 981, of the public records of Greenville
County, South Carolina (the "Assignment"), which Assignment was assigned to
Assignee pursuant to that certain Assignment of Mortgage and Related Loan
Documents of even date herewith to be recorded in the public records of
Greenville County, South Carolina.
1
<PAGE> 3
C. The Mortgage has been modified and amended pursuant to that
certain Amended and Restated Mortgage, Assignment of Leases and Rents and
Security Agreement of even date herein, to be recorded in the Public Records of
Greenville County, South Carolina to increase the Indebtedness secured thereby
to $150,000,000 evidenced by those certain: (i) Substitution Revolving
Promissory Note dated as of even date herewith made by Grantor payable to the
order of FUNB in the original principal amount of $45,000,000, (ii) the
Substitution Revolving Promissory Note dated as of even date herewith made by
Grantor payable to the order of AmSouth in the original principal amount of
$35,000,000, (iii) the Substitution Revolving Promissory Note dated as of even
date herewith made by Grantor payable to the order of GFB in the original
principal amount of $35,000,000, (iv) the Revolving Promissory Note dated as of
even date herewith made by Grantor payable to the order of Citizens in the
original principal amount of $20,000,000, and (v) the Revolving Promissory Note
dated as of even date herewith made by Grantor payable to the order of Compass
in the original principal amount of $15,000,000 (collectively, the "Notes").
D. To further secure the payment, discharge and performance of
the Notes, and as a condition to Assignee's extension of credit to Assignor
pursuant to the Notes, Assignor has agreed to execute this Amendment for the
purposes set forth herein.
E. Assignor and Assignee desire to amend the Assignment to set
forth that the loan evidenced by the Prior Notes has been modified, amended, and
extended as evidenced by the Notes defined above.
NOW, THEREFORE, to further secure the payment, discharge and
performance of the indebtedness of Assignor to Assignee evidenced by the Notes
and in consideration of Assignee's acceptance of the Notes and in further
consideration of the sum of Ten Dollars ($10.00) paid by Assignee to Assignor,
receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee
hereby agree as follows:
1. The recitals hereinabove are true and correct and are incorporated herein by
reference.
2. The Assignment is hereby amended to secure the payment, discharge, and
performance of the Notes, and all references in the Assignment to the "Notes"
are hereinafter deemed to refer to the "Notes" of even date herewith as defined
herein.
3. All references in the Assignment to the "Loan Agreement" shall be deemed to
refer to that certain Second Amended and Restated Revolving Credit Loan
Agreement of even date herewith.
4. The term "Assignee" as defined in the Assignment, is hereby deemed to refer
to First Union National Bank, as Agent for the Lenders, which Lenders are
defined in the Loan Agreement.
5. Except as herein expressly amended, the Assignment is hereby ratified and
confirmed and shall otherwise remain unchanged and in full force and effect.
2
<PAGE> 4
6. All initial capitalized defined terms not defined herein shall have the
meanings assigned to them in the Assignment.
7. This Amendment may be executed in separate counterpart signature pages, and
all such counterparts taken together shall constitute but one and the same
instrument.
8. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ASSIGNOR,
THE ASSIGNEE, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (ALL OF
WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH ACKNOWLEDGE AND AGREE
THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR ARISING OUT OF
THIS AMENDMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE PARTIES RELATED
THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY
OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT FOR THE
LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE SUBJECT TO NO EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE> 5
IN WITNESS WHEREOF, Assignor and Assignee have executed this Amendment
under seal the day and year first above written.
ASSIGNOR:
WITNESSES: KOGER EQUITY, INC.,
a Florida corporation
/s/ Janice R. Long
- ------------------------------
Name: Janice R. Long By: /s/ G. Danny Edwards
------------------------- ----------------------------------
Name: G. Danny Edwards
--------------------------------
Title: Treasurer
------------------------------
/s/ Alan C. Sheppard, Jr.
- ------------------------------
Name: Alan C. Sheppard, Jr. [AFFIX CORPORATE SEAL]
-------------------------
ASSIGNEE:
WITNESSES: FIRST UNION NATIONAL BANK,
a national association, as Agent
/s/ Alan C. Sheppard, Jr.
- ------------------------------
Name: Alan C. Sheppard, Jr. By: /s/ Andrew J. Hogshead
------------------------- ----------------------------------
Name: J. Andrew Hogshead
--------------------------------
Title: Vice President
-------------------------------
/s/ Janice R. Long
- ------------------------------
Name: Janice R. Long [AFFIX CORPORATE SEAL]
-------------------------
4
<PAGE> 6
STATE OF Georgia )
) PROBATE
COUNTY OF Camden )
PERSONALLY appeared before me the undersigned witness who after first
being duly sworn, deposes and says that s/he saw the within-named KOGER EQUITY,
INC., by G. Danny Edwards, its Treasurer, sign seal and as its act and deed,
deliver the within-written Amendment to Assignment of Leases and Rents for the
uses and purposes therein mentioned, and that s/he together with the other
witness whose signature appears above, witnessed the execution thereof.
/s/ Janice R. Long
--------------------------------------
WITNESS
SWORN TO BEFORE ME THIS
30th day of December, 1998.
- ----
/s/ Dee Price (L.S.)
- ------------------------------------------------------
Notary Public for Georgia
-------------------------------------
Notary Public, Camden County, Georgia
My commission expires: Feb. 1, 1999
--------------------------------
5
<PAGE> 7
STATE OF Florida )
) PROBATE
COUNTY OF Duval )
PERSONALLY appeared before me the undersigned witness who after first
being duly sworn, deposes and says that s/he saw the within-named FIRST UNION
NATIONAL BANK, a national association, by J. Andrew Hogshead, its Vice
President, sign seal and as its act and deed, deliver the within-written
Amendment to Assignment of Leases and Rents for the uses and purposes therein
mentioned, and that s/he together with the other witness whose signature appears
above, witnessed the execution thereof.
/s/ Janice R. Long
----------------------------------
WITNESS
SWORN TO BEFORE ME THIS
30th day of December, 1998.
- ----
/s/ Nancy Hoffmann (L.S.)
- -------------------------------------
Notary Public for Florida
-------------------------
My commission expires: September 3, 2000
Bonded Thru Notary Public Underwriters
6
<PAGE> 8
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
<PAGE> 1
EXHIBIT 10(k)(6)(b)
AMENDMENT TO ENVIRONMENTAL INDEMNIFICATION AGREEMENT
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
- --------------------------------------------------------------------------------
AMENDMENT TO ENVIRONMENTAL INDEMNIFICATION AGREEMENT
- --------------------------------------------------------------------------------
THIS AMENDMENT TO ENVIRONMENTAL INDEMNIFICATION AGREEMENT (this
"Amendment") is made and executed this 30th day of December, 1998, by
KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256, Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Agent"), for the
Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement dated of even date herewith, as amended from
time to time, between Borrower and Agent (the "Loan Agreement").
RECITALS
1. Borrower and Agent, Morgan Guaranty Trust Company of New York,
a New York banking corporation, AmSouth Bank, a state banking corporation, and
Guaranty Federal Bank F.S.B., a federal savings bank (collectively, the
"Original Lenders") entered into that certain Amended and Restated Revolving
Credit Loan Agreement dated as of December 29, 1997 (the "Prior Loan Agreement")
pursuant to which the Original Lenders agreed to extend certain credit to
Borrower from time to time up to a maximum principal amount of $100,000,000 (the
"Loan").
2. As partial security for the Loan, Borrower provided the
Original Lenders with that certain Mortgage, Assignment of Leases and Rents and
Security Agreement dated as of December 29, 1997, and recorded in Official
Records Book 2979, page 338 of the public records of Greenville County, South
Carolina (the "Mortgage"), wherein Borrower granted to the Original Lenders a
security interest in certain real property located in Greenville County, South
Carolina and described therein (the "Property") as security for the Loan.
3. As a condition precedent to and as a material inducement for
the Original Lenders' agreement to provide the Loan to Borrower, the Original
Lenders required Borrower to execute and deliver that certain Environmental
Indemnification Agreement dated as of December 29, 1997 covering the Property
(the "Environmental Agreement"), which Environmental Agreement was assigned to
Agent pursuant to that certain Assignment of Mortgage and Related Loan Documents
of even date herewith.
1
<PAGE> 3
4. Borrower has applied to the Agent to increase the amount of
the Loan to $150,000,000 and to resyndicate the Loan to additional lenders in
order to finance such increase, and to modify certain other provisions of the
Mortgage. The Agent and the other Original Lenders have agreed to such
modifications, provided, among other things, that the Environmental Agreement is
modified in accordance with the terms and conditions hereinafter set forth.
ACCORDINGLY, in consideration of the mutual covenants, promises and
agreements hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Recitals. The recitals hereinabove are true and correct and
are incorporated herein by reference.
2. Additional Lenders. All references to the term "Lender" or
"Lenders" as utilized in the Environmental Agreement shall hereinafter be deemed
to refer to First Union National Bank, as Agent for the Lenders under and as
defined in the Loan Agreement.
3. Additional Promissory Notes. All references to the term
"Notes" as utilized in the Environmental Agreement shall hereinafter be deemed
to refer collectively to those certain Substitution Revolving Promissory Notes
and Revolving Promissory Notes all of even date herewith from Borrower to each
of the Lenders, as applicable.
4. Amendment to Loan Agreement. All references to the term "Loan
Agreement" as utilized in the Environmental Agreement shall hereinafter be
deemed to refer to that certain Second Amended and Restated Revolving Credit
Loan Agreement dated of even date herewith between Borrower and First Union
National Bank, as Agent for the Lenders. All references to the term "Loan" as
utilized in the Environmental Agreement shall hereinafter be deemed to refer to
the Loan evidenced by the Second Amended and Restated Loan Agreement.
5. Amended and Restated Mortgage. All references to the term
"Mortgage" as utilized in the Environmental Agreement shall hereinafter be
deemed to refer to that certain Amended and Restated Mortgage, Assignment of
Leases and Security Agreement from Borrower to Agent of even date herewith, and
to be recorded in the public records of Greenville County, South Carolina.
2
<PAGE> 4
6. Ratification. Except as herein expressly amended, the
Environmental Agreement is hereby ratified and confirmed and shall otherwise
remain unchanged and in full force and effect.
7. Capitalized Terms. All initial capitalized defined terms not
defined herein shall have the meanings assigned to them in the Environmental
Agreement.
8. Counterparts. This Amendment may be executed in separate
counterpart signature pages, and all such counterparts taken together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their authorized officers as of the day and year first above
written.
Signed, sealed and delivered in the BORROWER:
presence of:
KOGER EQUITY, INC., a Florida
corporation
/s/ Janice R. Long
- -----------------------------------
Print Name: Janice R. Long
By: /s/ G. Danny Edwards
------------------------------
Name: G. Danny Edwards
----------------------------
/s/ J A Hoener Title: Treasurer
- ----------------------------------- ---------------------------
Print Name: James A. Hoener
------------------------
[CORPORATE SEAL]
LENDER:
FIRST UNION NATIONAL BANK, a
national association, as Agent
/s/ Alan C. Sheppard, Jr. By: /s/ Andrew J. Hogshead
- ----------------------------------- ------------------------------
Print Name: Alan C. Sheppard, Jr. Name: J. Andrew Hogshead
------------------------ ----------------------------
Title: Vice President
---------------------------
/s/ Nancy Hoffmann [CORPORATE SEAL]
- -----------------------------------
Print Name: Nancy Hoffmann
-----------------------
3
<PAGE> 1
EXHIBIT 10(k)(6)(c)
AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND
PERMITS
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
- --------------------------------------------------------------------------------
AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
- --------------------------------------------------------------------------------
THIS AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS (this
"Assignment") is made and executed this 30th day of December, 1998, by
KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256, Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Agent"), for the
Lenders (as such term is defined in the Second Amended and Restated Revolving
Credit Loan Agreement dated of even date herewith, as amended from time to time,
between Borrower and Lender (the "Loan Agreement").
RECITALS
1. Borrower and Agent, Morgan Guaranty Trust Company of New York,
a New York banking corporation, AmSouth Bank, a state banking corporation, and
Guaranty Federal Bank F.S.B., a federal savings bank (collectively, the
"Original Lenders") entered into that certain Amended and Restated Revolving
Credit Loan Agreement dated as of December 29, 1997 (the "Prior Loan Agreement")
pursuant to which the Original Lenders agreed to extend certain credit to the
Borrower from time to time up to a maximum principal amount of $100,000,000 (the
"Loan").
2. As partial security for the Loan, the Borrower provided the
Original Lenders with that certain Mortgage, Assignment of Leases and Rents and
Security Agreement dated as of December 29, 1997, and recorded in Book 2979,
page 338, of the public records of Greenville County, South Carolina (the
"Mortgage"), wherein the Borrower granted to the Original Lenders a security
interest in certain real property described therein as security for the Loan.
3. As additional collateral for repayment of the Loan, Borrower
made and delivered to the Original Lenders that certain Assignment of Contracts,
Licenses and Permits dated December 29, 1997 (the "Assignment of Contracts"),
which Assignment of Contracts was assigned to Agent pursuant to that certain
Assignment of Mortgage and Related Loan Documents of even date herewith.
<PAGE> 3
4. The Borrower has applied to the Agent to increase the amount
of the Loan to $150,000,000 and to resyndicate the Loan to additional lenders in
order to finance such increase, and to modify certain other provisions of the
Mortgage. The Agent and the other Original Lenders have agreed to such
modifications, provided, among other things, that the Assignment of Contracts is
modified in accordance with the terms and conditions hereinafter set forth.
ACCORDINGLY, in consideration of the mutual covenants, promises and
agreements hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Recitals. The recitals hereinabove are true and correct and
are incorporated herein by reference.
2. Additional Lenders. All references to the term "Lender" as
utilized in the Assignment of Contracts shall hereinafter be deemed to refer to
First Union National Bank, as Agent for the Lenders.
3. Additional Promissory Notes. All references to the term
"Notes" as utilized in the Assignment of Contracts shall hereinafter be deemed
to refer collectively to those certain Substitution Revolving Promissory Notes
and Revolving Promissory Notes all of even date herewith from Borrower to each
of Lenders.
4. Amendment to Loan Agreement. All references to the term "Loan
Agreement" as utilized in the Assignment of Contracts shall hereinafter be
deemed to refer to that certain Second Amended and Restated Revolving Credit
Loan Agreement dated of even date herewith between Borrower and Lender. All
references to the term "Loan" as utilized in the Assignment of Contracts shall
hereinafter be deemed to refer to the Loan evidenced by the Second Amended and
Restated Loan Agreement.
5. Ratification. Except as herein expressly amended, the
Assignment of Contracts is hereby ratified and confirmed and shall otherwise
remain unchanged and in full force and effect.
6. Capitalized Terms. All initial capitalized defined terms not
defined herein shall have the meanings assigned to them in the Assignment of
Contracts.
2
<PAGE> 4
7. Counterparts. This Agreement may be executed in separate
counterpart signature pages, and all such counterparts taken together shall
constitute but one and the same instrument.
8. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, BORROWER, THE AGENT, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THIS ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT
FOR THE LENDERS TO MAKE THE LOAN TO BORROWER, AND SHALL BE SUBJECT TO NO
EXCEPTIONS.
3
<PAGE> 5
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their authorized officers as of the day and year first above
written.
Signed, sealed and delivered in the BORROWER:
presence of:
KOGER EQUITY, INC., a Florida
corporation
/s/ Janice R. Long
- ----------------------------------- By: /s/ G. Danny Edwards
Print Name: Janice R. Long ------------------------------
------------------------ Name: G. Danny Edwards
---------------------------
Title: Treasurer
---------------------------
/s/ J. A. Hoener
- ----------------------------------- [CORPORATE SEAL]
Print Name: James A. Hoener
------------------------ LENDER:
FIRST UNION NATIONAL BANK, a
national association, as Agent
/s/ Alan Sheppard
- ----------------------------------- By: /s/ Andrew J. Hogshead
Print Name: Alan Sheppard ------------------------------
----------------------- Name: J. Andrew Hogshead
---------------------------
Title: Vice President
---------------------------
/s/ Nancy Hoffmann
- ----------------------------------- [CORPORATE SEAL]
Print Name: Nancy Hoffmann
------------------------
4
<PAGE> 1
THIS INSTRUMENT PREPARED BY, EXHIBIT 10(k)(7)(a)
AND FOLLOWING RECORDING RETURN TO:
ALAN C. SHEPPARD, JR., ESQ.
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
50 NORTH LAURA STREET, SUITE 2800
JACKSONVILLE, FLORIDA 32202
DEED OF TRUST, ASSIGNMENT OF
LEASES AND RENTS AND SECURITY AGREEMENT
FROM
KOGER EQUITY, INC.
TO
JAMES W. ROSE,
AS TRUSTEE
FOR THE BENEFIT OF
FIRST UNION NATIONAL BANK,
AS AGENT
Dated as of December 30, 1998
<PAGE> 2
DEED OF TRUST, ASSIGNMENT OF
LEASES AND RENTS, AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, AND
SECURITY AGREEMENT (this "Indenture"), dated as of December 30, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Trustor"), whose mailing address is
3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention:
J.C. Teagle, President,
to
JAMES W. ROSE, ("Trustee") having an address c/o First Union National Bank, a
national association, 301 South College Street, Charlotte, North Carolina 28288,
as trustee for the benefit of FIRST UNION NATIONAL BANK, a national association,
as Agent on behalf of the Lenders (the "Beneficiary") under and as defined in
that certain Second Amended and Restated Revolving Credit Loan Agreement dated
as of even date herewith, as amended from time to time (the "Loan Agreement").
For purposes of notices permitted or required to be given hereunder, the
Beneficiary's mailing address is One First Union Center, 301 South College
Street, Charlotte, North Carolina 28288 Attention: First Union Capital Markets
Group.
Capitalized terms not otherwise defined herein are defined in Article I.
WITNESSETH:
TO SECURE (A) the payment, performance and observance of all
obligations of Trustor and all indebtedness heretofore or hereafter from time to
time advanced under the Loan Agreement and the payment of any and all other
indebtedness which this Indenture by its terms secures including, without
limitation, the payment of principal and interest on the Notes which shall (1)
be payable to each of the Lenders, (2) be payable in full not later than
December 30, 2001, and (3) bear interest at a floating rate as set forth in
Section 2.6 of the Loan Agreement; provided, that the maximum aggregate
principal amount of indebtedness secured hereby, other than for advances made
pursuant to Article XXVIII, Paragraph 28 hereof, shall in no event exceed
$150,000,000.00 (the "Indebtedness") and (B) the performance of the covenants
and agreements contained herein and in the Loan Agreement.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, in consideration of the
aforesaid Indebtedness and the trust referred to and created below Trustor
hereby irrevocably grants, bargains and sells, conveys, transfers, assigns, sets
over, mortgages, hypothecates, pledges and grants to Trustee and its successors
and assigns IN TRUST WITH POWER OF SALE in and to all of Trustor's right, title
and interest in the following
1
<PAGE> 3
property and rights whether now owned or hereafter acquired by Trustor
(collectively, the "Property"):
(i) the Land;
(ii) all buildings, structures and other improvements
presently situated or hereafter constructed on the Land (collectively, the
"Improvements");
(iii) all rights, privileges, tenements, hereditaments,
rights of way, easements, rights and appurtenances belonging to or in any way
relating to either the Land or the Improvements;
(iv) all fixtures, machinery, equipment and other personal
property of all types owned by Trustor now or hereafter affixed to and used in
connection with the operation of the Land and Improvements, together with all
additions and accessions thereto, substitutions therefor and replacements
(collectively, the "Fixtures");
(v) all awards or payments, including interest thereon,
which may heretofore and hereafter be made with respect to the Land, the
Improvements or the Fixtures, whether from the exercise of the right of eminent
domain (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of said right), or for a change of grade of any
street, or for any other injury to or decrease in the value of Trustor's rights,
title or interest in and to the Land, the Improvements or the Fixtures;
(vi) all leases and other agreements affecting the use,
enjoyment or occupancy of the Land, the Improvements or the Fixtures now or
hereafter entered into (the "Leases") and rents, revenues, issues and profits
from the Land, the Improvements or the Fixtures (the "Rents") and all proceeds
from the sale or other disposition of the Leases and the right to receive and
apply the Rents to the payment of the Indebtedness;
(vii) all proceeds of and any unearned premiums on any
insurance policies covering the Land, the Improvements or the Fixtures,
including, without limitation, the right to receive and apply the proceeds of
any insurance, judgments, or settlements made in lieu thereof, for damage to the
Land, the Improvements or the Fixtures; and
(viii) the right, in the name and on behalf of Trustor, to
appear in and defend any action or proceeding brought with respect to Trustor's
right, title or interest in and to the Land, the Improvements or the Fixtures
and to commence any action or proceeding to protect the interest of Beneficiary
in the Land, the Improvements or the Fixtures;
2
<PAGE> 4
TO HAVE AND TO HOLD the Property unto Trustee and its successors and
assigns, forever; IN TRUST NEVERTHELESS to its own proper use and benefit
forever, upon the terms and trusts herein set forth for the benefit and security
of Beneficiary.
This Indenture is a deed of trust of real property and a security
agreement covering the Fixtures under the Uniform Commercial Code of the State.
Upon the occurrence of an Event of Default, Trustee and Beneficiary shall, in
addition to other rights and remedies granted to them, have all the rights
granted to secured parties pursuant to the Uniform Commercial Code of the State.
Trustor, for itself and for its successors and assigns, covenants and
agrees with Trustee and with Beneficiary as follows:
ARTICLE I
1. Definitions. As used in this Indenture, the following
capitalized terms have the respective meanings set after them, such definitions
to be applicable equally to the singular and plural forms of such terms:
"AmSouth" shall mean AmSouth Bank, a state banking corporation.
"Beneficiary" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Citizens" shall mean Citizens Bank of Rhode Island, a Rhode Island
financial institution.
"Compass" shall mean Compass Bank, an Alabama banking corporation
"Default" shall mean any condition or event which constitutes or which
would constitute an Event of Default either with or without notice or lapse of
time, or both.
"Default Rate" shall have the meaning assigned to such term in the Loan
Agreement.
"Event of Default" shall have the meaning assigned to such term in
Article V of this Indenture.
"FUNB" shall mean First Union National Bank, a national association.
"Fixtures" shall have the meaning assigned to such term in clause (iv)
of the Granting Clause of this Indenture.
3
<PAGE> 5
"GFB" shall mean Guaranty Federal Bank, F.S.B., a federal savings bank.
"Governmental Requirements" shall have the meaning assigned to such
term in the Loan Agreement.
"Impositions" shall mean, collectively, all taxes of every kind and
nature (including real and personal property, income withholding, profits and
gross receipts taxes), all charges for any easement or agreement maintained for
the benefit of any of the Property, all general and special assessments, levies,
permits, inspection and license fees, all water and sewer rents and other
utility charges, all ground rents, and all other public charges whether of a
like or different nature, even if unforeseen or extraordinary, imposed upon or
assessed against Trustor, Beneficiary or any portion of the Property as a result
of or arising in respect of the acquisition, occupancy, leasing, use or
possession thereof, or any activity conducted on the Property (including,
without limitation, any gross income tax, sales tax or excise tax levied by any
governmental body on or with respect to the Rents).
"Improvements" shall have the meaning assigned to such term in clause
(ii) of the Granting Clause of this Indenture.
"Indebtedness" shall have the meaning assigned to such term in the
Granting Clause of this Indenture.
"Indenture" shall mean this Deed of Trust, Assignment of Leases and
Rents and Security Agreement.
"Land" shall mean those certain parcels of real property located in the
County of Bexar, State of Texas, as more particularly described on Exhibit A
attached hereto and incorporated herein.
"Leases" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"Lenders" shall mean FUNB, GFB, AmSouth, Compass, and Citizens, and any
other Lenders under the Credit Agreement from time to time.
"Loan Agreement" shall mean that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of December 30, 1998 between Trustor
and Beneficiary.
"Loan Documents" shall mean collectively the Notes, the Loan Agreement,
this Indenture, and the Security Deeds, the Assignments of Leases, the
Assignments of Contracts, the Indemnification Agreements, as such terms are
defined in the Loan Agreement and any and all other loan documents executed in
connection with the Loan.
4
<PAGE> 6
"Notes" shall mean collectively (i) the Substitution Revolving
Promissory Note dated as of even date herewith made by Trustor payable to the
order of FUNB in the original principal amount of $45,000,000, (ii) the
Substitution Revolving Promissory Note dated as of even date herewith made by
Trustor payable to the order of AmSouth in the original principal amount of
$35,000,000, (iii) the Substitution Revolving Promissory Note dated as of even
date herewith made by Trustor payable to the order of GFB in the original
principal amount of $35,000,000, (iv) the Revolving Promissory Note dated as of
even date herewith made by Trustor payable to the order of Citizens in the
original principal amount of $20,000,000, and (v) the Revolving Promissory Note
dated as of even date herewith made by Trustor payable to the order of Compass
in the original principal amount of $15,000,000.
"Other Indenture" shall mean any mortgage, deed to secure debt, or deed
of trust given by Trustor to or in favor of Trustee or Beneficiary to secure the
Indebtedness, other than this Indenture.
"Permitted Encumbrances" shall mean those covenants, restrictions,
reservations, liens, conditions and easements listed as exceptions to title as
set forth on Exhibit B attached hereto and incorporated herein.
"Person" shall mean any corporation, natural person, joint venture,
partnership, business trust, joint stock company, trust, unincorporated
organization, government or any department, agency or political subdivision
thereof.
"Property" shall have the meaning assigned to such term in the Granting
Clause of this Indenture.
"Rents" shall have the meaning assigned to such term in clause (vi) of
the Granting Clause of this Indenture.
"State" shall mean the State of Texas.
"Taking" shall mean a taking or voluntary conveyance during the term
hereof of all or part of the Property, or any interest therein or right accruing
thereto or use thereof, as the result of or in lieu or in anticipation of the
exercise of the right of condemnation or eminent domain.
"Trustee" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
"Trustor" shall have the meaning assigned to such term in the
introductory paragraph of this Indenture.
5
<PAGE> 7
ARTICLE II
2. Representations and Warranties. Trustor represents and
warrants to Trustee for the benefit of Beneficiary that (a) it has full power,
authority and legal right to execute and deliver this Indenture and to grant a
first deed of trust of the Property, (b) it holds indefeasible fee simple title
to the Land and good title to the balance of the Property, (c) this Indenture
constitutes a valid first deed of trust of the Property, subject to the
Permitted Encumbrances, and (d) the Leases are in full force and effect in
accordance with their respective terms, have not been canceled or modified, and
have not been assigned or encumbered except to Beneficiary pursuant to this
Indenture and the Loan Agreement, and, to the best of Trustor's knowledge, no
default exists under the Leases. Trustor, at its expense, will warrant to
Trustee and to Beneficiary and will defend its title to the Property and the
lien thereon created by this Indenture against all claims and demands, and will
maintain and preserve such lien so long as the Indebtedness secured by this
Indenture remains outstanding, subject, however, to the Permitted Encumbrances.
ARTICLE III
3. Affirmative Covenants. Until this Indenture and the lien
created hereby shall terminate in accordance with Article XXI, Trustor shall
comply with the following covenants:
(a) Recordation, Filing, Etc. At all times cause this Indenture
and each amendment or modification hereof or supplement hereto (and such
financing statements covering the Property under the Uniform Commercial Code as
in effect in the State as may be necessary or appropriate) to be recorded,
registered and filed and kept recorded, registered and filed in such manner and
in such places as appropriate, and comply with all applicable statutes and
regulations, in order to establish, preserve and protect the lien of this
Indenture as a first lien on the Property and the rights of Trustee and
Beneficiary hereunder. Trustor shall pay, or shall cause to be paid, all taxes,
fees and other charges incurred in connection with such recording, registration,
filing and compliance.
(b) Maintenance and Repairs. Keep and maintain the Property in
good order, repair and operating condition (ordinary wear and tear excepted) and
make all repairs and replacements necessary to that end.
(c) Payment of Impositions and Utility Charges. Pay all
Impositions while the same may be paid without fine, penalty, interest or
additional cost, unless the same shall be contested in good faith and by
appropriate proceedings by Trustor in the manner permitted by the Loan
Agreement. Any Impositions which are payable in installments may be paid in
installments provided that the Trustor is otherwise in compliance with the Loan
Agreement. Upon the written request of Beneficiary from time to time, Trustor
will furnish to Beneficiary official receipts or other satisfactory proof
evidencing such payments. In addition, Trustor will pay all utility charges as
required by the Loan Agreement. Trustor
6
<PAGE> 8
shall not be entitled to any credit on the Indebtedness, by reason of the
payment of any Imposition or utility charges or any part thereof.
(d) Compliance with Governmental Requirements. Promptly (i) comply
with all Governmental Requirements unless the same shall be contested in good
faith and by appropriate proceedings by Trustor in the manner permitted by the
Loan Agreement, and (ii) procure, maintain and comply with all licenses or other
authorizations required for any use of the Property then being made, and for the
proper erection, installation, operation, repair and maintenance of the
Improvement and the Fixtures, or any part of either thereof.
(e) Insurance. Maintain insurance of the types and in the amounts
required by, and otherwise complying with the Loan Agreement and promptly
deliver, or cause to be promptly delivered, to Beneficiary any certificates or
evidence of such insurance as required under the Loan Agreement.
(f) Damage, Destruction or Taking. In the event of any damage,
destruction or Taking affecting all or any portion of the Property, Trustor
shall give immediate written and oral notice thereof to Beneficiary and Trustee
and proceed in accordance with the terms of the Loan Agreement. In case of any
such material damage, destruction or Taking, Beneficiary shall be entitled to
hold all insurance proceeds, payments or awards on account thereof, to the same
extent Trustor would be entitled thereto under the Loan Agreement, and Trustor
hereby irrevocably assigns to Beneficiary all of its rights to any such
insurance proceeds, payments or awards. With respect to a Taking, and in
accordance with its obligations under the Loan Agreement, Trustor will file or
prosecute or will cause to be filed or prosecuted in good faith and with due
diligence what would otherwise be its claim for any such award or payment and
cause the same to be collected and paid over to Beneficiary. At the sole cost
and expense of Trustor, Beneficiary may elect to monitor or participate in, and
if reasonably necessary, may hire independent legal counsel to represent
Beneficiary in connection with, any claim or the claims payment process. Trustor
will pay or cause to be paid all costs and expenses reasonably incurred in
connection with any Taking and the seeking and obtaining of any award or payment
in respect thereof. Unless an Event of Default shall have occurred under the
Loan Agreement, all sums so received by Beneficiary shall be applied in
accordance with the provisions of the Loan Agreement.
(g) Notification of Default, Etc. Promptly after obtaining
knowledge thereof, notify Trustee and Beneficiary of any Default hereunder or
under the Loan Agreement or of any action or proceeding materially and adversely
affecting the Property.
(h) Corporate Existence. Preserve and keep in full force and
effect its corporate existence, rights and franchises and privileges as a
corporation under the laws of the State of Texas and comply with all laws
applicable to it, and do or cause to be done all things
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necessary to preserve and to keep in full force and effect its right to own
property in the State of Texas.
(i) Inspection. Permit the Beneficiary or its authorized
representatives to inspect the Property during usual business hours.
ARTICLE IV
4. Negative Covenants. Without the prior written consent of
Beneficiary, Trustor will not directly or indirectly create or permit to be
created or to remain and will discharge or will cause to be discharged any
mortgage, charge, lien or encumbrance on, or attachment or pledge of, or
conditional sale or other title retention agreement with respect to, the
Property or any part thereof, its interest or the interests of Trustee and
Beneficiary therein, or the Rents or other sums payable pursuant to the Leases,
except (i) this Indenture, (ii) the Permitted Encumbrances, (iii) easements,
restrictions, liens, charges and other encumbrances permitted by the Loan
Agreement, (iv) liens being contested in good faith and by appropriate
proceedings in the manner permitted by the Loan Agreement, and (v) liens arising
out of or created by any statute, the discharge of which cannot under the terms
of such statute at the particular time be effected by Trustor; provided,
however, that any such statutory liens will promptly be discharged as and when
such discharge is possible or permissible. Trustor shall have the right to
grant, without the prior consent of Beneficiary, any utility easement.
ARTICLE V
5. Events of Default. If any one or more of the following events
(individually, an "Event of Default") shall occur:
(a) non-payment, when due, of any sums which Trustor is obligated
to pay hereunder, under the Notes, or under the Loan Agreement continues
unremedied for a period of five (5) days after the date such payment is due; or
(b) failure of Trustor to keep in full force and effect its
corporate existence, rights, franchises and privileges, except as provided for
in the Loan Agreement; or
(c) if an Event of Default (as defined in the Loan Agreement)
shall have occurred under the Loan Agreement; or
(d) if any of the representations or warranties made by Trustor in
any document, instrument or certificate delivered in connection with the
financing of the Property by Trustor proves to be untrue in any material
respect; or
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(e) if a default shall have occurred under any Other Indenture or
under any other Loan Document and shall be continuing beyond the applicable
grace or cure period provided therein; or
(f) if Trustor shall (i) voluntarily be adjudicated a bankrupt or
insolvent, (ii) seek or consent to the appointment of a receiver or trustee for
itself or for any portion of the Property, (iii) file a petition seeking relief
under the bankruptcy or other similar laws of the United States, any state or
any jurisdiction, (iv) make a general assignment for the benefit of creditors,
or (v) be unable to pay its debts as they mature; or
(g) a court shall enter an order, judgment or decree appointing,
with the consent of Trustor, a receiver or trustee for it or for any of the
Property or approving a petition filed against Trustor which seeks relief under
the bankruptcy or other similar laws of the United States, any state or any
jurisdiction, and such order, judgment or decree shall remain in force,
undischarged or unstayed, sixty (60) days after it is entered; or
(h) the estate or interest of Trustor in any of the Property shall
be levied upon or attached in any proceeding and such estate or interest is
about to be sold or transferred or such process shall not be vacated or
discharged within fifteen (15) days after such levy or attachment;
(i) if Trustor sells, conveys or transfers, voluntarily or
otherwise, its interest in the Property without the prior written consent of
Beneficiary; or
(j) any material provision of the Loan Documents relating to
Trustee's or Beneficiary's ability to realize on the Collateral following an
Event of Default shall for any reason cease to be valid and binding on Trustor,
or Trustor shall so state in writing.
then, in any such event, Trustee or Beneficiary may accelerate the Indebtedness
outstanding under this Indenture, and may take such other actions as may be
provided under the Loan Agreement, or at law or in equity.
ARTICLE VI
6.1. Assignment of Rents. As additional security hereunder, the
Trustor hereby grants, bargains, conveys, assigns, transfers and sets over, and
by these presents does grant, bargain, convey, assign, transfer and set over to
the Beneficiary, as well as the Trustee on behalf of the Beneficiary, all Rents,
if any,; provided, however, that unless and until an Event of Default occurs,
the Trustor will have a license to collect and retain such Rents as and when,
but not before, the same shall become due and payable. Upon an Event of Default,
the Beneficiary shall be immediately entitled to and may collect such Rents. In
addition, upon an Event of Default, the Beneficiary, or the Trustee on the
Beneficiary's behalf, may at any time and without notice, either in person or by
agent or by
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receiver to be appointed by a court, enter and take possession of the Property
or any part thereof, and in its own name, sue for or otherwise collect such
Rents. The Trustor hereby agrees with the Beneficiary that other parties under
the Leases may, upon notice from the Beneficiary, or the Trustee acting on
behalf of the Beneficiary, on the occurrence of an Event of Default, thereafter
pay directly to the Beneficiary the Rents due and to become due under the Leases
and attorn to all other obligations thereunder, directly to the Beneficiary
without any obligation on their part to determine whether an Event of Default
does, in fact, exist or has, in fact, occurred. All Rents collected by the
Trustee or the Beneficiary shall be applied as provided in Article XII hereof;
provided, however, that if the costs and expenses and attorney's fees shall
exceed the amount of the Rents collected, the excess shall be added to the
Indebtedness, shall bear interest at the maximum rate allowable by law as
provided herein, and shall be immediately due and payable. The entering upon and
taking possession of the Property, the collection of Rents, if any, and the
application thereof as aforesaid, shall not cure or waive any Event of Default
or notice of default, if any, hereunder, nor invalidate any act done pursuant to
such notice except to the extent that such default is fully cured. Failure or
discontinuance of the Trustee or the Beneficiary at any time or from time to
time, to collect said Rents, shall not in any manner impair the subsequent
enforcement by the Beneficiary, or the Trustee on the Beneficiary's behalf, of
the right, power and authority herein conferred upon it. Nothing contained
herein, nor the exercise of any right, power or authority herein granted to the
Beneficiary, or the Trustee on the Beneficiary's behalf, shall be construed to
be an affirmation by it of any tenancy, lease or option, nor an assumption of
liability under, nor the subordination of the lien or charge of this Indenture,
to any such tenancy, lease or option.
6.2. Use of Furniture and Equipment. The Trustor agrees that, in
the event the Beneficiary, or the Trustee on behalf of the Beneficiary,
exercises its rights under Section 6.1, above, and takes possession of the
Property through the assignment of Rents, or through a court-appointed receiver,
the Trustor hereby waives any right to compensation for the use of the Trustor's
furniture, fixtures and equipment, together with all accessories, replacements
and substitutions therefor, in or about the Property for the use for the period
such assignment of Rents or receivership is in effect.
ARTICLE VII
7. Remedies in Case of Event of Default.
7.1. Legal Proceedings and Foreclosure. If an Event of Default
shall have occurred and be continuing, the Trustee or the Beneficiary may
proceed by suit or suits at law or in equity or by any other appropriate remedy
to protect and enforce its rights hereunder, whether for the specific
performance of any covenant or agreement contained herein, or for an injunction
against the violation of any of the terms hereof, or in aid of the exercise of
any right, power or remedy available to it, or to enforce the payment of the
Indebtedness under the Loan Agreement, or to foreclose the lien and security
interest of
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this Indenture as against all or any part of the Property and to have all or any
part of the Property sold, in any manner permitted by law, under the judgment or
decree of a court or courts of competent jurisdiction, or otherwise, and to
pursue any other remedies available to it. If the Beneficiary proceeds to
foreclose the lien of this Indenture, the Beneficiary shall have the statutory
power of sale if permitted by applicable law. All rights of action under this
Indenture may, if permitted by applicable law, be enforced by the Trustee or the
Beneficiary without the possession of the Notes and without the production of
the Notes, the Loan Agreement or this Indenture at any trial or other proceeding
relative thereto. In the event of any such suit or proceeding, the Beneficiary
and/or the Trustee shall comply with any local laws applicable to any such suits
or proceedings. Any such suit or proceeding instituted by the Trustee shall be
brought in its name as Trustee and any recovery or judgment shall be for the
benefit of the Beneficiary. All costs and expenses (including, without
limitation, reasonable attorney's fees and expenses) incurred by the Trustee or
the Beneficiary in connection with any such suit or proceeding, together with
interest thereon (to the extent permitted by law) computed at the Default Rate
from the date on which such costs or expenses are incurred to the date of
payment thereof, shall constitute additional Indebtedness secured by this
Indenture and shall be paid by the Trustor to the Trustee or the Beneficiary, as
the case may be, on demand.
7.2. Power of Sale and Procedure. If an Event of Default shall have
occurred and be continuing and after the Trustee or the Beneficiary shall have
accelerated the Indebtedness as provided herein, the Trustee at the
Beneficiary's election may sell or offer for sale the Property in such portions,
order and parcels as the Beneficiary may determine, with or without having first
taken possession of same, to the highest bidder for cash at public auction. Such
sale shall be made in conformance with the laws of the State of Texas at the
courthouse door of the county wherein the Property is situated on the first
Tuesday of any month between the hours of 10:00 A.M. and 4:00 P.M. after giving
adequate legal notice of the time, place and terms of sale and that portion of
the Property to be sold, by (i) posting or causing to be posted written or
printed notices thereof for at least twenty-one (21) consecutive days prior to
the date of said sale at the respective county courthouse door, and at least
twenty-one (21) days preceding the date of said sale: (x) filing a copy of such
notice with the Clerk of the County in which the Property is located, and (y)
serving written notice (by the Beneficiary or any person chosen by it) of such
proposed sale by certified mail on each debtor obligated to pay the Indebtedness
under the Loan Agreement, service of such notice to any debtor to be completed
upon deposit of the notice, enclosed in a post-paid wrapper appropriately
addressed to each debtor at the most recent address as shown by the records of
the Beneficiary, in a post office or official depository under the care and
custody of the United States Postal Service (it being expressly understood that
the affidavit of any person having knowledge of the facts to the effect that
such service was completed shall be prima facie evidence of the fact of such
service), or (ii) by accomplishing all or any of the aforesaid in such manner as
permitted or required by Texas law in existence on the date hereof relating to
the sale of real estate under a power of sale and/or relating to the sale of
collateral under a power of sale after
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default by a debtor, or by any subsequent laws relating to same. At any such
sale (i) whether made under the power herein contained, Texas law, any other
legal requirement or by virtue of any judicial proceeding or any other legal
right, remedy or recourse, it shall not be necessary for the Trustee to have
physically present, or to have constructive possession of, the Property (the
Trustor hereby covenanting and agreeing to deliver to the Trustee any portion of
the Property not actually or constructively possessed by the Trustee immediately
upon demand by the Trustee) and the title to and right of possession of any such
property shall pass to the purchaser thereof as completely as if the same had
been actually present and delivered to such purchaser at such sale, (ii) each
instrument of conveyance executed by the Trustee shall contain a special
warranty of title, binding upon the Trustor, (iii) each and every recital
contained in any instrument of conveyance made by the Trustee shall conclusively
establish the truth and accuracy of the matters recited therein, including,
without limitation, nonpayment of the indebtedness, advertisement and conduct of
such sale in the manner provided herein and otherwise by law and appointment of
any successor Trustee hereunder, (iv) any and all prerequisites to the validity
thereof shall be conclusively presumed to have been performed, and (v) the
receipt of the Trustee or of such other party or officer making the sale shall
be a sufficient discharge to the purchaser or purchasers for his or their
purchase money and no such purchaser or purchasers, or his or their assigns or
personal representatives, shall thereafter be obligated to see to the
application of such purchase money or be in any way answerable for any loss,
misapplication or non-application thereof.
7.3. Acceleration of Maturity. If an Event of Default shall have
occurred, the Beneficiary may declare the entire outstanding Indebtedness under
the Loan Agreement, and all other sums secured hereby, to be due and payable
immediately, and upon such declaration such Indebtedness and other sums shall
immediately become and be due and payable without demand or notice.
7.4. Leases. The failure to make any tenants of the Property
parties defendant to any such foreclosure proceedings and to foreclose their
rights will not be, nor be asserted by the Trustor to be, a defense to any
proceedings instituted by the Trustee and/or the Beneficiary to collect the sums
secured hereby or to collect any deficiency remaining unpaid after the
foreclosure sale of the Property.
7.5. Suits to Protect the Property. The Beneficiary, or the Trustee
at the Beneficiary's election, shall have the power and authority to institute
and maintain any suits and proceedings as the Beneficiary may deem advisable (a)
to prevent any impairment of the Property by any acts which may be unlawful or
any violation of this Indenture, (b) to preserve or protect its interest in the
Property, and (c) to restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order might impair the security hereunder or be
prejudicial to the Beneficiary's interest.
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7.6. Discontinuance of Proceedings; Position of Parties Restored.
If the Beneficiary, or the Trustee at the Beneficiary's election, shall have
proceeded to enforce any right or remedy under this Indenture by foreclosure,
entry or otherwise, and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Beneficiary, then and in every such case, to the extent permitted by and
consistent with applicable law, the Trustor and the Beneficiary shall be
restored to their former positions and rights hereunder, and all rights, powers
and remedies of the Beneficiary shall continue as if no such proceeding had
occurred or had been taken.
7.7. The Trustor to Pay the Indebtedness on Any Default in Payment;
Application of Monies by the Beneficiary.
(a) If an Event of Default shall occur as a result of Trustor's
failure to pay any amount due under the Loan Agreement or this Indenture, or any
other instrument securing the Notes, then, upon the Beneficiary's demand, the
Trustor will pay to the Beneficiary the whole amount due and payable under the
Loan Agreement and all other sums secured hereby; and if the Trustor shall fail
to pay the same forthwith upon such demand, the Beneficiary, or the Trustee at
the Beneficiary's election, shall be entitled to sue for and to recover judgment
for the whole amount so due and unpaid together with costs and expenses,
including the reasonable compensation, expenses and disbursements of the
Beneficiary's agents, attorneys and other representatives. The Beneficiary shall
be entitled to sue and recover judgment as aforesaid either before, after or
during the pendency of any proceedings for the enforcement of this Indenture,
and the right of the Beneficiary to recover such judgment shall not be affected
by any taking, possession or foreclosure sale hereunder, or by the exercise of
any other right, power or remedy for the enforcement of the terms of this
Indenture, or the foreclosure of the lien hereof.
(b) In case of a foreclosure sale of all or any part of the
Property and of the application of the proceeds of sale to the payment of the
sums secured hereby, the Beneficiary shall be entitled to enforce payment of and
to receive all amounts then remaining due and unpaid and to recover judgment for
any portion thereof remaining unpaid, with interest.
(c) The Trustor hereby agrees, to the extent permitted by law,
that no recovery of any such judgment by the Beneficiary and no attachment or
levy of any execution upon any of the Property or any other property shall in
any way affect the lien of this Indenture upon the Property or any part thereof
or any lien, rights, powers or remedies of the Beneficiary hereunder, but such
lien, rights, powers and remedies of the Beneficiary hereunder shall continue
unimpaired as before.
7.8. Remedies Cumulative. No remedy herein shall be exclusive of
any other remedy or remedies, and each such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity; and every
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power and remedy of the Trustee or the Beneficiary hereunder may be exercised
from time to time and as often as may be deemed expedient by the Trustee or the
Beneficiary. No delay or omission of the Trustee or the Beneficiary to exercise
any right or power accruing upon an Event of Default shall impair any such right
or power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein.
ARTICLE VIII
8.1. Purchase of the Property by Beneficiary. Beneficiary may be a
purchaser of the Property or any part thereof or any interest therein at any
sale thereof, whether pursuant to foreclosure, power of sale or otherwise, and
may apply the Indebtedness secured hereby to the purchase price.
8.2. Title Upon Sale; Receipt a Sufficient Discharge to Purchaser.
After the occurrence of an Event of Default hereunder, and upon the sale of the
Property or any part thereof or any interest therein by Trustee or Beneficiary,
whether pursuant to foreclosure, power of sale or otherwise, the purchaser shall
acquire good title thereto, free of the lien of this Indenture and free of all
rights of redemption, whether statutory, equitable or otherwise, in Trustor to
the extent permitted by applicable law. The receipt of the officer making the
sale under judicial proceedings or of Trustee or Beneficiary shall be sufficient
discharge to the purchaser for the purchase money, and such purchaser shall not
be obligated to see to the application thereof. All occupants of the Property
sold or any part thereof shall become tenants at sufferance of the purchaser,
and as long as a tenant is not in default under its Lease, the purchaser will
not disturb the occupancy of such tenant of the Property during the term of its
Lease. It shall not be necessary for the purchaser at any such sale to bring any
action for possession to the Property purchased other than statutory action of
forcible detainer in any justice court having jurisdiction.
8.3. Application of Indebtedness Toward Purchase Price. If
Beneficiary purchases the Property pursuant to foreclosure, power of sale or
otherwise, then Beneficiary may, in lieu of cash, apply all or any portion of
the sums due to Beneficiary under the Loan Agreement and this Indenture or any
other instrument securing the Indebtedness, to the unpaid balance of the
purchase price remaining after payment of any portion of the purchase price
required to be paid in cash, and the costs and expenses of the sale,
compensation and other charges relating to the sale.
ARTICLE IX
9. Waiver of Appraisement, Valuation, Etc. Trustor hereby waives,
to the full extent it may lawfully do so, the benefit of all appraisement,
valuation, stay, moratorium, exemption from execution, extension and redemption
laws now or hereafter in force and all rights of marshaling in the event of the
sale of the Property or any part thereof or any interest therein.
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ARTICLE X
10. Appointment of Receiver. If an Event of Default shall have
occurred, Trustee and/or Beneficiary shall, as a matter of right and to the
fullest extent permitted by applicable law, be entitled, ex parte and without
notice, to the appointment of a receiver or receivers of the Property or any
part thereof, whether such receivership be incidental to a proposed sale thereof
or otherwise, and Trustor hereby consents to the appointment of such a receiver
or receivers and will not oppose any such appointment. The expenses, including
receiver's fees, attorney's fees, costs and agent's compensation, incurred
pursuant to the powers herein contained shall be secured by this Indenture.
ARTICLE XI
11. Possession, Management and Income. If an Event of Default
shall have occurred under this Indenture, Trustee or Beneficiary, without
further notice, may enter upon and take possession of the Property or any part
thereof, in any manner permitted by law, by reasonable force, summary
proceedings, ejectment or otherwise and may remove Trustor and all other Persons
and any and all property therefrom, and Trustee or Beneficiary may hold, operate
and manage the same, make all necessary or proper repairs, renewals, and
replacements, and useful alterations, additions, betterments and improvements
thereto and thereon as may seem advisable to either of them, and insure and
reinsure the Property as may seem advisable and to either of them, and may
receive all earnings, income, rents, issues and proceeds accruing with respect
thereto. Any amounts so received by Trustee or Beneficiary shall be applied (a)
to pay (i) the expenses of operating the Property and of all maintenance,
repairs, renewals, replacements, alterations, additions, betterments,
improvements, taxes, assessments, insurance premiums, reasonable compensation
for the services of Trustee and all attorneys, advisors, brokers, receivers,
agents and other employees engaged or employed by Trustee or Beneficiary and all
other costs and expenses of entering a bond and taking possession of and holding
the Property, and (ii) any lien prior to the lien of this Indenture which
Beneficiary may consider it necessary or desirable to discharge and then (b) in
the manner provided in Article XII of this Indenture. If an Event of Default
shall have occurred under the Loan Agreement or if the Loan Agreement shall be
terminated, all sums so received by Trustee or Beneficiary shall be applied in
the manner specified in Article XII of this Indenture.
ARTICLE XII
12. Application of Proceeds. The proceeds of (a) the operation and
management of the Property pursuant to Article XI of this Indenture, and (b) any
sale of the Property or any interest therein, shall, unless otherwise provided
in the Loan Agreement, be applied as follows:
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First: to the costs and expenses of the sale, reasonable attorneys'
fees and expenses, Trustee's fees and expenses, court costs, and any other
expenses or advances made or incurred in the protection of the rights of Trustee
and Beneficiary or in the pursuance of any remedies hereunder;
Second: to the fullest extent permitted by applicable law, to any lien
prior to the lien of this Indenture which Beneficiary may consider it necessary
or desirable to discharge;
Third: to any Indebtedness secured by this Indenture and at the time
due and payable (whether by acceleration or otherwise;
Fourth: to Beneficiary for payment of the Notes outstanding; and
Fifth: the balance, if any, to Trustor.
ARTICLE XIII
13. Remedies, Etc., Cumulative. Each legal, equitable or
contractual right, power or remedy of Trustee and Beneficiary now or hereafter
provided herein or by statute or otherwise shall be cumulative and concurrent
and shall be in addition to every other right, power and remedy, and the
exercise or beginning of the exercise by Trustee or Beneficiary of any one or
more of such rights, powers and remedies shall not preclude the simultaneous or
later exercise of any or all such other rights, powers and remedies.
ARTICLE XIV
14. No Waiver, Etc. No failure by Trustee or Beneficiary to insist
upon the strict performance of any term hereof or to exercise any right, power
or remedy consequent upon a breach hereof shall constitute a waiver of any such
term or of any such breach. No acceptance of the payment of any sums due under
this Indenture or under the Loan Agreement during the continuance of any Default
shall constitute a waiver thereof. No waiver of any breach shall affect or alter
this Indenture which shall continue in full force and effect with respect to any
other then existing or subsequent breach.
ARTICLE XIV
15. Trustee.
(a) All the rights, powers and remedies of Beneficiary hereunder
may be exercised by Trustee. Trustee shall not be under any obligation to
exercise any trust or power vested in him by this Indenture unless Beneficiary
shall have offered Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred by Trustee in compliance
herewith. Trustee shall not be liable with respect to any
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action taken or omitted to be taken by Trustee in accordance with the written
directions of Beneficiary, except for Trustee's own bad faith, willful
misconduct or negligence. Trustee shall not be required to ascertain or inquire
as to the performance or observance of any of the covenants or agreements of
Trustor herein, and in the absence of written notice from Trustor or Beneficiary
stating that a Default has occurred and specifying the same, Trustee may
conclusively assume that no Default exists.
(b) Trustee may, with consent of Beneficiary, consult with counsel
(which may be counsel for Trustor) and the written advice or opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by him hereunder in good faith and in
accordance therewith.
(c) Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys.
(d) Any moneys received by Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
law.
(e) Beneficiary may, by instrument in writing, filed in the office
or offices where this Indenture has been recorded, and at any time or from time
to time, and without notice and without specifying any reason therefor, and
without applying to any court, remove Trustee and select a successor trustee or
trustees in the event of the death, removal, resignation, refusal to act, or
inability to act of Trustee or, in its sole discretion, for any reason
whatsoever. Trustee so ceasing to act shall duly assign, transfer and deliver
any of the property and monies held by such Trustee to the successor appointed
in Trustee's place. All powers, rights and duties and authority of Trustee shall
thereupon become vested in the successor. The successor shall not be required to
give bond or make an oath for the faithful performance of his duties unless
required by Beneficiary.
(f) Trustee may resign by the giving of notice of such resignation
in writing to Beneficiary.
(g) If more than one Trustee is appointed under this Indenture,
all rights granted to and all powers conferred upon Trustee hereunder may be
exercised by both or either of Trustees.
(h) All reasonable expenses, charges, counsel fees and other
disbursements incurred by Trustee in and about the administration of this
Indenture and executed in the performance of its duties and powers hereunder
shall be secured by this Indenture.
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ARTICLE XVI
16. Right of Trustee or Beneficiary to Perform Covenants, Etc. If
Trustor shall fail to make any payment or perform any act required to be made or
performed hereunder and such failure shall not be cured within the applicable
grace period, if any, Trustee or Beneficiary, without notice to or demand upon
Trustor and without waiving or releasing any obligation or Default, may (but
shall be under no obligation to) at any time thereafter make such payment or
perform such act for the account and at the expense of Trustor and may enter
upon the Property or any part thereof for such purpose and take all such action
thereon as, in the opinion of Trustee or Beneficiary, may be necessary or
appropriate therefor. All sums so paid by Trustee or Beneficiary and all costs
and expenses (including, without limitation, attorneys' fees and expenses) so
incurred shall constitute additional Indebtedness secured by this Indenture and
shall be paid by Trustor to Trustee or Beneficiary on demand.
ARTICLE XVII
17. Sale a Bar Against the Trustor. The sale of the Property or
any part thereof or any interest therein, whether pursuant to foreclosure, power
of sale or otherwise under this Indenture, shall forever bar any claim with
respect thereto by the Trustor to the extent permitted by applicable law.
ARTICLE XVIII
18. Authorization to Execute Instruments, Etc. The Trustor
irrevocably appoints the Beneficiary as its true and lawful attorney, which
appointment is coupled with an interest and is irrevocable, in the Trustor's
name and stead and on its behalf, for the purpose of (a) executing on behalf of
the Trustor and filing continuation statements and any necessary amendments to
all financing statements naming the Trustee and/or the Beneficiary as the
secured parties filed under any applicable Uniform Commercial Code, and (b)
effectuating any sale, assignment, transfer or delivery of the Property or any
part thereof or any interest therein for the enforcement of this Indenture
whether pursuant to foreclosure, power of sale or otherwise, or in the event of
any purchase of the Property by the Lessee pursuant to the Lease, to execute and
deliver all such deeds, bills of sale, assignments, releases and other
instruments as the Trustee or the Beneficiary may consider necessary or
appropriate, with full power of substitution, the Trustor hereby ratifying and
confirming all that such attorney or any substitute shall lawfully do by virtue
hereof. If so requested by the Trustee or the Beneficiary, the Trustor shall
ratify and confirm any such sale, assignment, transfer or delivery by executing
and delivering to the Trustee or the Beneficiary all proper deeds, bills of
sale, assignments, releases and other instruments as may be designated in any
such request.
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ARTICLE XIX
19. Certificate as to No Default, Etc.; Information. At any time
and from time to time, Trustor will deliver to Beneficiary, promptly upon
request, a certificate signed by a duly authorized officer of Trustor stating
that, to the best of the signer's knowledge after making due inquiry, there is
no Default hereunder, or if any such Default exists to his knowledge, specifying
the nature and period of existence thereof and what action Trustor is taking or
proposes to take with respect thereto. Trustor will also furnish promptly to
Beneficiary, such information with respect to the Property and the Leases as may
from time to time be requested.
ARTICLE XX
20. Additional Instruments. Trustor, at its expense, will execute,
acknowledge, secure and deliver all such instruments and take all such action as
Trustee or Beneficiary from time to time may reasonably request for the better
assuring of the Property, rights and obligations now or hereafter subjected to
the security of this Indenture or intended so to be.
ARTICLE XXI
21. Defeasance. This Indenture and the lien created hereby shall
terminate after the payment in full of (a) all the Indebtedness and (b) all
other sums secured hereby. Upon such termination, and upon surrender of this
Indenture for cancellation, Beneficiary shall release, without warranty, the
Property then subject to the lien hereof to the Persons entitled thereto. The
recitals in any release executed under this Indenture of any matters of fact
shall be conclusive proof of the truthfulness thereof. The grantee in such
release may be described as "the person or persons legally entitled thereto".
Trustee and/or Beneficiary, at Trustor's expense, shall execute and deliver such
instruments of release, satisfaction and termination in proper form for
recording or filing, as may be appropriate to evidence the release of (a) the
Property from the lien created hereby, and (b) any other security held by
Trustee and/or Beneficiary and such satisfaction and termination, and such
instruments, when duly executed, recorded and filed, shall conclusively evidence
the release, satisfaction and termination of this Indenture.
ARTICLE XXII
22. Applicable Law; Severability.
(a) This Indenture shall be governed by and construed in
accordance with the laws of the State.
(b) All rights, powers and remedies provided herein may be
exercised only to the extent that the exercise thereof does not violate any
applicable law, and are intended to be limited to the extent necessary so that
they will not render this Indenture invalid,
19
<PAGE> 21
unenforceable or not entitled to be recorded, registered or filed under any
applicable law. If any term or provision of this Indenture shall be held to be
invalid, illegal or unenforceable, the validity of the other terms and
provisions hereof shall in no way be affected thereby.
ARTICLE XXIII
23. Notices. All notices, demands, requests for consents, consents
and other communications required or permitted hereunder shall be in writing
(including facsimile transmission) and shall be given to such party, addressed
to it, at its address or telephone number set forth in the preamble, or at such
other address or telephone number as such party may hereafter specify for the
purpose of notice to the other party. Each such notice, request or communication
shall be effective when delivery is received at the address specified in the
preamble.
ARTICLE XXIV
24. Miscellaneous. This Indenture (a) may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought, and (b) shall be binding upon Trustor, its successors and assigns, and
all Persons claiming under or through Trustor or any such successor or assign,
and shall inure to the benefit of and be enforceable by Trustee and its
successors and Beneficiary and its successors and assigns. The headings in this
Indenture are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof. All agreements between Trustor and Beneficiary,
whether now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of demand or
acceleration of the maturity of any payments hereunder or under the Loan
Agreement or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to Beneficiary exceed the maximum amount permissible
under applicable law. If, in any circumstance whatsoever, interest would
otherwise be payable to Beneficiary in excess of the maximum lawful amount, and
if in any circumstance Beneficiary shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, and if
permitted by applicable law, an amount equal to any excessive interest shall be
applied to the reduction of advances under the Loan Agreement and not to the
payment of interest, or if such excessive interest exceeds the unpaid advances
under the Loan Agreement, such excess shall be refunded to Trustor. All interest
paid or agreed to be paid to Beneficiary shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full period until payment in full of the principal so that the interest hereon
for such full period shall not exceed the maximum amount permitted by applicable
law. This paragraph shall control all agreements between Trustor and
Beneficiary. This Indenture may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument. Portions of the Property consist of goods which are, or
are to become, fixtures relating to the Land and Trustor expressly covenants
20
<PAGE> 22
and agrees that the filing of this Indenture in the real estate records of the
county where the Property is located shall also operate from the time of filing
therein as a financing statement filed as a fixture filing in accordance with
Article 9 of the State's Uniform Commercial Code - Secured Transactions.
ARTICLE XXV
25. Change in Method of Taxation. In the event of the passage,
after the date of this Indenture, of any law changing in any way the laws now in
force for the taxation of mortgages or debts secured thereby, for state or local
purposes, or the operation of any such taxes so as to adversely affect the
interest of Beneficiary in the Property, this Indenture or the Loan Agreement,
Trustor shall, upon demand, bear and pay the full amount (or any partial amount)
requested by Beneficiary, of taxes resulting from such changes hereunder without
offset or credit against any other sums due under the Loan Agreement or on the
Notes.
ARTICLE XXVI
26. Trustee's Acceptance. Trustee accepts the trust created hereby
when this Indenture, duly executed and acknowledged, is made a public record in
the State and county where the Property is located, as provided by the laws of
Texas.
ARTICLE XXVII
27. No Petition. Trustee and Beneficiary hereby covenant and agree
that they will not institute against, or join any Person in instituting against
Trustor, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law at any time other than on a date which is at least one
(1) year and one (1) day after the payment in full of the Notes; provided,
however, that nothing in this Article shall constitute a waiver of any right to
indemnification, reimbursement or other payment from Trustor pursuant to the
Loan Agreement.
ARTICLE XXVIII
28. Indenture Secures Future Advances. This Indenture is given to
secure not only the amount initially secured by this Indenture, but also such
future advances, whether such advances are obligatory or are to be made at the
option of Trustee or Beneficiary, or otherwise, as are made within twenty (20)
years from the date hereof, to the same extent as if such future advances were
made on the date of the execution of this Indenture. The total amount of
Indebtedness presently secured hereby is One Hundred Fifty Million Dollars
($150,000,000.00) and the Indebtedness (including present and future
obligations) that may be so secured may decrease or increase from time to time,
but the total unpaid
21
<PAGE> 23
balance so secured at one time shall not exceed four times the face amount of
the amount initially secured by this Indenture plus interest thereon. This
Indenture secures a revolving line of credit under which Advances may be made,
repaid, and reborrowed on a revolving basis as provided for in the Loan
Agreement.
ARTICLE XXIX
29. Approval of Legal Description. Trustor has read and does
hereby approve the legal description of the Land which is the subject hereof, as
set forth in Exhibit A attached hereto, and hereby indemnifies Trustee and
Beneficiary and their attorneys with respect to any liability which might arise
as a consequence of any error or omission therein.
ARTICLE XXX
30. Loan Agreement. The terms, provisions, conditions,
representations and warranties and covenant of the Loan Agreement are
incorporated herein by reference. In the event of a conflict between this
Indenture and the Loan Agreement, the Loan Agreement shall control. The Loan
Agreement contains provisions permitting Trustor to obtain releases of portions
of the Property from this Indenture from time to time.
ARTICLE XXXI
31. WAIVER OF JURY TRIAL. TRUSTOR, TRUSTEE AND BENEFICIARY, BY ITS
ACCEPTANCE HEREOF, EACH ACKNOWLEDGE AND AGREE THAT NEITHER TRUSTOR, TRUSTEE NOR
BENEFICIARY, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF ANY OF
THE SAME, WILL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR
ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS DEED OF TRUST,
THE LOAN AGREEMENT OR THE LOAN DOCUMENTS, ANY COLLATERAL, OR THE DEALINGS OR THE
RELATIONSHIP BETWEEN OR AMONG TRUSTOR, TRUSTEE OR BENEFICIARY, RELATED THERETO.
NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER
ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY AND AMONG TRUSTOR, TRUSTEE AND
BENEFICIARY, ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A
MATERIAL INDUCEMENT FOR TRUSTEE AND THE LENDERS TO MAKE THE LOAN TO TRUSTOR, AND
WILL BE SUBJECT TO NO EXCEPTIONS.
IN WITNESS WHEREOF, Trustor has caused this Indenture to be executed
and attested by its proper officers thereunto duly authorized, as of the day and
year first above written and has executed the same in order that this Indenture
may qualify as a financing statement under the Uniform Commercial Code of the
State as to such of the Property, if any, constitutes personalty.
KOGER EQUITY, INC.,
a Florida corporation
By: /s/ G. Danny Edwards
-------------------------------
Name: G. Danny Edwards
-------------------------------
Title: Treasurer
-----------------------------
22
<PAGE> 24
STATE OF Georgia ss.
ss.
COUNTY OF Camden ss.
This instrument was acknowledged before me on the 30th day of December,
1998, by G. Danny Edwards the Treasurer of KOGER EQUITY, INC., a Florida
corporation, on behalf of said corporation.
/s/ Dee Price
-------------------------------
Notary Public
My commission expires:Feb. 1, 1999
Notary Public, Camden County, Georgia
23
<PAGE> 25
EXHIBIT A
The Land
<PAGE> 26
EXHIBIT B
Permitted Encumbrances
<PAGE> 1
THIS INSTRUMENT PREPARED BY EXHIBIT 10(k)(7)(b)
AND RECORD AND RETURN TO:
Alan C. Sheppard, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, FL 32202-3650
ASSIGNMENT OF LEASES AND RENTS
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made and
executed as of this 30th day of December, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Assignor"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Assignee") for
the Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of December 30, 1998 (the "Loan
Agreement"), whose address is 301 South College Street, Charlotte, North
Carolina 28288 Attention: First Union Capital Markets Group. The terms Borrower
and Lender, whenever hereinafter used will be construed to refer to and include
the heirs, legal representatives, executors, administrators, successors and
assigns of said parties.
Capitalized terms not defined herein shall have the meanings ascribed to them
in the Loan Agreement.
R E C I T A L S:
A. Assignor is the trustor under that certain Deed of Trust,
Assignment of Leases and Rents and Security Agreement given by Assignor to
Assignee dated of even date herewith and recorded or to be recorded in the real
property records of Bexar County, Texas (the "Deed of Trust"); securing the
following Substitution Revolving Promissory Notes and Revolving Promissory
Notes: (i) Substitution Revolving Promissory Note dated as of even date
herewith made by Assignor payable to the order of FUNB in the original
principal amount of $45,000,000, (ii) the Substitution Revolving Promissory
Note dated as of even date herewith made by Assignor payable to the order of
AmSouth in the original principal amount of $35,000,000, (iii) the Substitution
Revolving Promissory Note dated as of even date herewith made by Assignor
payable to the order of GFB in the original principal amount of $35,000,000,
(iv) the Revolving Promissory Note dated as of even date herewith made by
Assignor payable to the order of Citizens in the original principal amount of
$20,000,000, and (v) the Revolving Promissory Note dated as of even date
herewith made by Assignor payable to the order of Compass in the original
principal amount of $15,000,000 (collectively, the "Notes"), encumbering
certain real property interests located in Bexar County, Texas, as more
particularly described on attached Exhibit A (the "Premises").
1
<PAGE> 3
B. To further secure the payment, discharge and performance of
the Notes, and as a condition to Assignee's extension of credit to Assignor
pursuant to the Notes, Assignor has agreed to execute this Assignment for the
purposes set forth herein.
NOW, THEREFORE, to further secure the payment, discharge and
performance of the indebtedness of Assignor to Assignee evidenced by the Notes
and in consideration of Assignee's acceptance of the Notes and in further
consideration of the sum of Ten Dollars ($10.00) paid by Assignee to Assignor,
receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee all of Assignor's right, title and interest in, to and
under any and all present and future leases of or in the Premises ("Leases")
and any and all rents, revenues, issues and profits (including Assignor's
interest in any security deposits relating thereto) arising out of or accruing
from the Leases whether now or hereafter due ("Rents"), said Leases and Rents
being deemed part of the security for the indebtedness herein mentioned and are
encumbered, transferred and conveyed by this Assignment, and in furtherance
thereof, does hereby covenant and agree with Assignee as follows:
1. Assignor will notify Assignee in writing (but without any
right of approval or denial on the part of Assignee) of any termination,
substitution or material modification of any Leases involving 10,000 or more
Koger Net Square Feet (as defined in the Loan Agreement).
2. Assignor will, at its cost and expense, observe, perform and
discharge, or cause to be observed, performed and discharged, all of the
obligations and undertakings of Assignor or its agents under the Leases, and
will use its reasonable best efforts in the exercise of sound business judgment
to enforce or secure, or cause to be enforced or secured, the performance of
each and every obligation and undertaking of the respective tenants under the
Leases, and will appear in and defend, at its cost and expense, any action or
proceeding arising under or in any manner connected with the Leases or the
obligations and undertakings of any tenant thereunder. Assignor will not do or
permit to be done anything to impair the security hereof, including without
limitation the execution of any other assignment of Assignor's interest in the
Leases or the Rents, without Assignee's prior written consent.
3. This Assignment is intended to operate as an absolute and
immediate assignment of the Leases and the Rents; however, unless and until a
an Event of Default occurs under the Notes, the Loan Agreement, the Deed of
Trust or this Assignment, Assignor will have a license to collect the Rents as
and when the same become due and payable. Assignor hereby agrees that the
respective tenants under the Leases, upon notice from Assignee of the
occurrence of an Event of Default hereunder, will thereafter pay to Assignee
the Rents due and to become due under the Leases without any obligation to
determine whether or not such an Event of Default does in fact exist. Assignor,
without written approval of Assignee, will not collect or accept Rent for more
than one (1) month in advance; provided, however, Assignor may accept Rent two
(2) months in advance if such Rent accepted two (2) months
2
<PAGE> 4
in advance does not exceed five percent (5%) of the Rent collected during the
applicable month.
4. Upon payment in full of the principal sum and interest, of
the Notes, this Assignment shall become and be void and of no effect. Assignor
hereby authorizes and directs the lessees named in said Leases or any other or
future lessees or occupants of the Premises described therein or in the Deed of
Trust upon receipt from the Assignee of written notice to the effect that
Assignee is then the holder of the Notes and the Deed of Trust and that an
Event of Default exists thereunder or under the Assignment, to pay over to the
Assignee all rents, income, profits and revenues hereby assigned and to
continue so to do until otherwise notified by Assignee.
5. This Assignment of Leases and Rents as provided herein will
not be deemed or construed to constitute Assignee as a mortgagee in possession
of the Premises nor to obligate Assignee to take any action or to incur
expenses or perform or discharge any obligation, duty or liability of Assignor
under any Lease, or for the control, care, management, or repair of the
Premises; nor will it operate to make Assignee, except in the event of
Assignee's negligence, recklessness or willful misconduct, responsible or
liable for any waste committed on the Premises by the tenants or any other
parties or for any dangerous or defective condition of the Premises, or for any
act or omission relating to the management, upkeep, repair, or control of the
Premises that results in loss or injury or death to any person. Except in the
event of Assignee's negligence, recklessness or willful misconduct, Assignee
will not be liable for any loss sustained by Assignor resulting from Assignee's
failure to lease the Premises after default or from any other act or omission
of Assignee in managing the Premises after default. Assignor will and does
hereby indemnify and agree to hold harmless Assignee from and against any and
all liability, loss, cost, damage or expense which may be incurred under the
Leases or by reason of this Assignment of Leases (except as a result of
Assignee's gross negligence or willful misconduct) and, to the extent that a
claim is made against Assignee prior to the time Assignee takes possession of
the Premises, from any and all claims and demands whatsoever which may be
asserted against Assignee by reason of any alleged obligations or undertakings
on its part to perform or discharge any of the terms, covenants, or agreements
contained in the Leases. Should Assignee incur any such liability under the
Leases or by reason of this Assignment of Leases and Rents or in defense of any
such claims or demands, the amount thereof, including costs, expenses, and
reasonable attorneys' and paralegals' fees and costs, will be secured hereby
and Assignor will reimburse Assignee therefor immediately upon demand and upon
the failure of Assignor so to do, Assignee may, at its option, declare all sums
secured hereby immediately due and payable, or may charge the costs thereof to
Assignor as an advance under the Notes and secured by this Assignment.
6. To the extent not so provided by applicable law, each Lease
will provide that, in the event of enforcement by Assignee of the remedies
provided for by law or by the Notes, the Deed of Trust or this Assignment, the
lessee thereunder will, upon request of any person succeeding to the interest
of Assignor as a result of such enforcement,
3
<PAGE> 5
automatically become the lessee of said successor in interest, without change
in the terms or other provisions of such Lease. Any such successor in interest
will not be bound by any payment of rent or additional rent made more than one
(1) month or two (2) months in advance (as applicable in accordance with
Paragraph 3 above). The Leases are and at all times shall be subject and
subordinate in all respects to the Deed of Trust, and to all renewals,
modifications, amendments, consolidations, replacements, refinancings and
extensions of the Deed of Trust, to the full extent of all principal, interest
and all other amounts secured thereby. Provided that a tenant is not in default
under its Lease, Assignee shall not disturb the occupancy of such tenant under
its Lease during the term of such Lease, notwithstanding foreclosure of the
Deed of Trust, acceptance of a deed in lieu of foreclosure or exercise of any
other remedy provided in the Deed of Trust, or pursuant to the laws of the
State of Texas. If requested by a tenant or Assignor under any of the Leases or
upon Assignee's request, Assignor and Assignee shall enter into a
subordination, nondisturbance and attornment agreement (reasonably acceptable
in form and substance to Assignee) with such tenant whereby Assignee will agree
to not disturb the tenant in its possession of the Premises provided such
tenant is not in default under its Lease and the tenant will agree to attorn to
Assignee if Assignee takes possession of the Premises.
7. Upon a default under the Notes, the Loan Agreement, the Deed
of Trust or this Assignment, Assignee may at its option, without notice and
without regard to the adequacy of the security for the obligations set forth in
the Notes, either in person, by court appointed receiver or by agent, with or
without bringing any action or proceeding, demand and thereupon take possession
of the Premises, to have, hold, manage, lease and operate the same on such
terms and for such period of time as Assignee may deem proper, and either with
or without taking possession of the Premises in its own name, demand and
receive the Rents in the possession of Assignor at the time of Assignee's
written demand or collected thereafter, including those past due and unpaid,
with full power to make from time to time all alterations, renovations,
repairs, or replacements thereto or thereof as may seem proper to Assignee, and
to apply such Rents to the payment of: (a) all reasonable expenses of managing
the Premises, including, without limitation, the salaries, fees and wages of
the managing agent and such other employees as Assignee may deem necessary or
desirable, all taxes, charges, claims, assessments, liens, premiums for all
insurance which Assignee may deem necessary or desirable, costs of renovations,
repairs, or replacements, and all expenses incident to taking and retaining
possession of the Premises and protecting and preserving the same; or (b) the
principal sum and interest thereon of the Notes, together with all costs and
attorneys' and paralegals' fees and costs; all in such order or priority as
Assignee in its sole discretion may determine, any custom or use to the
contrary notwithstanding.
8. This Assignment is made and accepted without prejudice to any
of the rights and remedies possessed by Assignee under the remaining terms and
conditions of the Notes, the Loan Agreement, or the Deed of Trust, and the
right of Assignee to exercise its remedies under this Assignment may be
exercised by Assignee either prior to, simultaneously with, or subsequent to
any action taken by it under the remaining terms and
4
<PAGE> 6
conditions of the Notes, the Loan Agreement, or the Deed of Trust. Each and
every right, remedy and power granted to Assignee by this Assignment will be
cumulative and in addition to any other right, remedy and power given by the
remaining terms and conditions of the Notes, the Loan Agreement, the Deed of
Trust or this Assignment, or now or hereafter existing in equity, at law or by
virtue of statute or otherwise. Nothing contained in this Assignment, and no
act done or omitted by Assignee pursuant to the powers and rights granted it
hereunder, nor the failure of Assignee to avail itself of any of the rights and
remedies under this Assignment, will be construed or deemed to be a waiver of
any of Assignee's rights and remedies under this Assignment, nor will such
exercise or omission to exercise of the powers and rights granted Assignee
hereunder be deemed to constitute a waiver of its rights and remedies under the
remaining terms and conditions of the Notes, the Loan Agreement, or the Deed of
Trust.
9. Assignee may take or release other security for the payment
of the indebtedness under the Notes and the Deed of Trust, may release any
party primarily or secondarily liable therefor, and may apply any other
security held by it to the satisfaction of such indebtedness without prejudice
to any of its rights under this Assignment.
10. The term "Lease" or "Leases" as used herein, means said
Leases hereby assigned or any extension or renewal thereof, and any leases
subsequently executed during the term of this Assignment covering the Premises
or any part thereof. At Assignee's request, Assignor will assign and transfer
to Assignee any and all subsequent leases upon all or any part of the Premises
and to execute and deliver at the request of Assignee all such further
assurances and assignments in the Premises as Assignee will require from time
to time in its sole discretion.
11. This Assignment, together with the covenants and warranties
therein contained, shall inure to the benefit of Assignee and any subsequent
holder of the Notes and the Deed of Trust shall be binding upon Assignor, their
successors, executors, personal representatives, and assigns, and any
subsequent owner of the Premises.
12. This Assignment shall expire and terminate upon the payment
in full of the Notes and any other Indebtedness secured by the Deed of Trust
and any cancellation, satisfaction or release of the Deed of Trust shall
constitute a cancellation, satisfaction, or release of this Assignment. In the
event that a specific property is released from the lien of the Deed of Trust,
then such property and the Leases relating to it shall, effective with the
release, also be released from this Assignment.
13. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ASSIGNOR, THE ASSIGNEE, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THE ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP
5
<PAGE> 7
BETWEEN THE PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO
CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE
PARTIES, ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A
MATERIAL INDUCEMENT FOR THE LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE
SUBJECT TO NO EXCEPTIONS.
6
<PAGE> 8
IN WITNESS WHEREOF, Assignor has executed this Assignment under seal
the day and year first above written.
ASSIGNOR:
KOGER EQUITY, INC.,
a Florida corporation
By: /s/ G. Danny Edwards
---------------------------------
Name: G. Danny Edwards
-------------------------------
Title: Treasurer
------------------------------
STATE OF Georgia ss.
ss.
COUNTY OF Camden ss.
This instrument was acknowledged before me on the 30th day of
December, 1998, by G. Danny Edwards, the Treasurer of KOGER EQUITY, INC., a
Florida corporation, on behalf of said corporation.
/s/ Dee Price
------------------------------------
Notary Public
My commission expires: Feb. 1, 1999
Notary Public, Camden County, Georgia
7
<PAGE> 9
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
8
<PAGE> 1
EXHIBIT 10(k)(7)(c)
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
THIS ENVIRONMENTAL INDEMNIFICATION AGREEMENT (this "Agreement") is made
and executed as of this 30th day of December, 1998, from
KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("FUNB"), for the
Lenders (as such term is defined in the Loan Agreement, as hereinafter defined)
(FUNB and such Lenders are collectively referred to herein as the "Lenders"),
whose address is 301 South College Street, Charlotte, North Carolina 28288
Attention: First Union Capital Markets Group, which terms Borrower and Lenders,
whenever hereinafter used will be construed to refer to and include the heirs,
legal representatives, executors, administrators, successors and assigns of said
parties.
R E C I T A L S :
A. Borrower has obtained financing from Lenders pursuant to that
certain Second Amended and Restated Revolving Credit Loan Agreement dated as of
even date herewith (hereinafter, together with any and all extensions, renewals,
modifications, replacements and substitutions thereof, referred to as the "Loan
Agreement") and those certain Substitution Revolving Promissory Notes and
Revolving Promissory Notes dated as of even date herewith (hereinafter, together
with any and all extensions, renewals, modifications, replacements and
substitutions thereof, referred to as the "Loan").
B. Borrower's obligations under the Loan are secured in part by a
Deed of Trust, Assignment of Leases and Rents and Security Agreement in favor of
Lenders (the "Deed of Trust") encumbering real property located in Bexar County,
Texas, and being more particularly described on attached Exhibit A (the
"Property").
C. As a condition precedent to and as a material inducement for
Lenders' agreement to provide the Loan to Borrower, Lenders have required
Borrower to execute and deliver this Agreement, it being acknowledged and
understood by Borrower that Lenders otherwise are not willing to make or provide
the Loan.
D. Borrower has obtained a Phase I Environmental Site Assessment
dated May 14, 1997, prepared by Law Engineering for each of the Atrium Building
and the Pacific Plaza Building (collectively, the "Environmental Assessment"),
and has delivered a copy
1
<PAGE> 3
of the same to Lenders. Lenders intend to rely on the Environmental Assessment
in making the Loan.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and as a material inducement to Lenders to make
or provide the Loan to Borrower, Borrower hereby covenants and agrees with
Lenders as follows:
1. Definitions. The following terms as used in this Agreement
will have the meanings set forth below:
(a) "Hazardous Substances" will mean any hazardous or toxic
substances, materials or wastes, including without limitation any flammable
explosives, radioactive materials, friable asbestos, kepone, polychlorinated
biphenyls (PCB's), electrical transformers, batteries, paints, solvents,
chemicals, petroleum products, or other man-made materials with hazardous,
carcinogenic or toxic characteristics, and such other solid, semi-solid, liquid
or gaseous substances which are radioactive, toxic, ignitable, corrosive,
carcinogenic to human health, those substances, materials, and wastes listed in
the United States Department of Transportation Table (49 CFR 972.101) or by the
Environmental Protection Agency, as hazardous substances (40 CFR Part 302, and
amendments thereto) provided all such substances, materials and wastes are or
become regulated under applicable local, state or federal law relating to (i)
petroleum, (ii) asbestos, (iii) PCB's, or (iv) materials designated as a
"hazardous substance," "hazardous waste," "hazardous materials," "toxic
substances," "contaminants," in each case under any applicable Environmental
Laws.
(b) "Environmental Laws" will mean any applicable present or
future federal, state or local laws, ordinances, rules or regulations pertaining
to Hazardous Substances, including without limitation the following statutes and
regulations, as amended from time to time: (i) the Federal Clean Air Act, 42
U.S.C. Section 7401 et seq.; (ii) the Federal Clean Water Act, 33 U.S.C. Section
1151 et seq.; (iii) the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq. ("RCRA"); (iv) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
("CERCLA") and the Superfund Amendments and Reauthorization Act of 1986, Pub. L.
No. 99-499, 100 Stat. 1613 ("SARA"); (v) the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1802; (vi) the National Environment Policy Act, 42 U.S.C.
Section 1857 et seq.; (vii) The Toxic Substance Control Act of 1976, 15 U.S.C.
Section 2601 et seq.; (viii) applicable regulations of the Environmental
Protection Agency, 33 CFR and 40 CFR relating to hazardous substances; and (ix)
and similar statutes, rules and regulations under the laws of the State of
Texas.
(c) "Hazardous Condition" will mean the presence, discharge,
disposal, storage or release of any Hazardous Substance, in violation of any
Environmental Laws, on or in
2
<PAGE> 4
the improvements, air, soil, groundwater, surface water or soil vapor on or
about the Property, or that migrates, flows, percolates, diffuses or in any way
moves onto or into the improvements, air, soil, groundwater, surface water or
soil vapor on or about the Property, or from the Property into adjacent
property.
(d) "Claims" will mean, individually and collectively, any claims,
actions, administrative proceedings, judgments, damages, punitive damages,
penalties, fines, costs, liabilities, sums paid in settlement, interest, losses
or expenses (including reasonable attorneys' and paralegals' fees and costs,
whether incurred in enforcing this Agreement, collecting any sums due hereunder,
settlement negotiations, at trial or on appeal), reasonable consultant fees and
reasonable expert fees, together with all other reasonable costs and expenses of
any kind or nature, that arise directly from or in connection with the existence
of a Hazardous Condition, whether occurring before, on or after the date of this
Agreement or caused by any person or entity.
Without limiting the generality of the foregoing definition, Claims
specifically will include claims, whether by related or third parties, for
personal injury or real or personal property damage, and capital, operating and
maintenance costs incurred in connection with any Remedial Work.
However, notwithstanding the foregoing, Claims will not be deemed to
include claims, actions, administrative proceedings, judgments, damages,
punitive damages, penalties, fines, costs, liabilities, sums paid in settlement,
interest, losses or expenses, that arise in connection with any Hazardous
Condition that is determined by proper judicial or administrative procedure to
have been introduced to the Property from and after the date upon which Lenders
take possession of the Property pursuant to an Order of Receivership,
foreclosure or deed in lieu of foreclosure, or which is caused by the actions of
Lenders.
(e) "Remedial Work" will mean any investigation or monitoring of
site conditions, any clean-up, containment, remediation, removal or restoration
work required or performed by any federal, state or local governmental agency or
political subdivision or performed by any nongovernmental entity or person due
to the existence of a Hazardous Condition.
2. Compliance with Environmental Laws; Disclosure of Hazardous
Conditions. Except as to those conditions (the "Existing Conditions") as
specifically may be disclosed in the Environmental Assessment, Borrower hereby
represents, warrants, covenants and agrees in all material respects to and with
Lenders that all operations or activities upon, or any use or occupancy of the
Property by Borrower, any tenant or other occupant, to the best of Borrower's
knowledge, is presently and will at all times until Borrower's conveyance of the
Property or foreclosure of Deed of Trust be in compliance with all Environmental
Laws; that Borrower has not at any time engaged in or permitted, nor has any
existing or previous tenant or occupant of the Property engaged in or permitted
to the best of Borrower's knowledge the occurrence of any Hazardous Condition,
except as specifically
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<PAGE> 5
may be disclosed in the Environmental Assessment; and that to the best of
Borrower's knowledge, there does not now exist nor is there suspected to exist
any Hazardous Condition on or about the Property, except as specifically may be
disclosed in the Environmental Assessment.
3. Indemnification. Borrower hereby indemnifies and agrees to
protect, defend and hold Lenders harmless, which for purposes of this paragraph
will be deemed to include the directors, officers, shareholders, employees and
agents of Lenders, from and against any Claims other than claims arising from
Lenders' or such other included parties' gross negligence or willful misconduct,
including, without limitation, any claims relating to an Existing Condition. In
the event that Lenders suffer or incur any Claims, Borrower will pay to Lenders
the total of all such Claims suffered or incurred by Lenders upon demand
therefor by Lenders.
4. Remedial Work. In the event that any Remedial Work with
respect to any Hazardous Conditions that could result in a Claim is required
under any Environmental Laws by any judicial order, or by any governmental
entity, or in order to comply with the terms, covenants and conditions of this
Agreement or of any other agreements affecting the Property, Borrower will
perform or cause to be performed the Remedial Work in compliance with such law,
regulation, order or agreement. All Remedial Work will be performed by one or
more contractors, selected by Borrower and under the supervision of a consulting
environmental engineer selected by Borrower, and approved in advance by Lenders.
All costs and expenses of Remedial Work will be paid by Borrower including
without limitation the charges of such contractor(s) and the consulting
environmental engineer, and Lenders' reasonable attorneys' and paralegals' fees
and costs incurred in connection with monitoring or review of all Remedial Work.
In the event that Borrower fails to timely commence, or cause to be commenced,
or fails to diligently prosecute to completion, such Remedial Work, Lenders may,
but will not be required or have any obligation to, cause such Remedial Work to
be performed, and all costs and expenses thereof, or incurred in connection
therewith, will thereupon constitute Claims. All such Claims will be due and
payable by Borrower upon demand therefor by Lenders.
5. Permitted Contests. Notwithstanding any provision of this
Agreement to the contrary, provided that (i) no default has occurred and is
continuing under the Loan Agreement, (ii) no Lenders nor any assignee of any
Lenders' interest (including any person having a beneficial interest) in the
Property, the Loan and the Loan Documents will be exposed or subjected to civil
or criminal liability, and (iii) the lien and security interest of Lenders or
any such assignee in the Property, the Loan, the Loan Documents, or the payment
of any sums to be paid under the Loan Documents, is not jeopardized or in any
way adversely affected, Borrower may contest or cause to be contested, by
appropriate action, the application, interpretation or validity of any
Environmental Laws or any agreement requiring any Remedial Work pursuant to a
good faith dispute regarding such application, interpretation or validity of
such Environmental Laws or agreement requiring
4
<PAGE> 6
such Remedial Work. During the pendency of any such permitted contest, Borrower
may delay performance of Remedial Work or compliance with the Environmental Laws
or agreement requiring such Remedial Work, provided that (i) Borrower actually
contests and prosecutes such contest by appropriate proceedings conducted in
good faith and with due diligence to resolution, (ii) prior to any such delay in
compliance with any Environmental Laws or any Remedial Work requirement on the
basis of a good faith contest of such requirement, Borrower will have given
Lenders written notice that Borrower intends to contest or will contest or cause
to be contested the same, and will have given such security or assurances as
Lenders reasonably may request to ensure compliance with the legal requirements
pertaining to the Remedial Work (and payment of all costs, expenses, interest
and penalties in connection therewith) and to prevent any sale, forfeiture or
loss of all or any part of the Property by reason of such noncompliance, delay
or contest, and (iii) prior to any such delay in compliance with any
Environmental Laws or any Remedial Work requirement on the basis of a good faith
contest of such requirement, Borrower will have taken such steps as may be
necessary to prevent or mitigate any continuing occurrence of any existing or
suspected Hazardous Condition giving rise to the contested Remedial Work
requirement. Subject to the terms and conditions set forth above, during the
pendency of any such permitted contest resulting in a delay of performance of
any required Remedial Work, Lenders agree that it will not perform such Remedial
Work requirement on behalf of Borrower.
6. Subrogation of Indemnity Rights. If Borrower fails to perform
its obligations under paragraphs 3 and 4 above, Lenders will be subrogated to
any rights Borrower may have under any indemnifications from any present, future
or former owners, tenants or other occupants or users of the Property relating
to the matters covered by this Agreement.
7. Assignment by Lenders. No consent by Borrower will be required
for any assignment or reassignment of the rights of Lenders hereunder to one or
more purchasers of the Loan, the Loan Documents or Lenders' interest in the
Property under the Deed of Trust.
8. Merger, Consolidation or Sale of Assets. Subject to
limitations regarding disposition of any interest or control in Borrower as may
be set forth in the Loan Documents, in the event of a disposition involving
Borrower or all or a substantial portion of the assets of Borrower to one or
more persons or other entities or the merger or consolidation of Borrower with
another entity, the surviving entity or transferee of assets, as the case may
be, will (i) be formed and existing under the laws of a state, district or
commonwealth of the United States of America, and (ii) deliver to Lenders an
acknowledged instrument in recordable form assuming all obligations, covenants
and responsibilities of Borrower under this Agreement.
9. Survival; Independent Obligations. Notwithstanding anything to
the contrary contained in the Loan Agreement, the obligations of Borrower under
this Agreement will
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<PAGE> 7
survive (a) the consummation of the Loan transaction described above; (b)
satisfaction of all terms and conditions to be performed by or on behalf of
Borrower under the Loan Agreement; (c) termination, in accordance with their
respective terms, of the Loan transaction and the Loan Agreement; (d) any
assumption of Borrower's obligations under the Loan Agreement by a successor to
Borrower (whether or not Lenders approved such assumption and whether or not
Borrower was released from liability under the Loan Agreement); (e) conveyance
of title to all or any portion of the Property to any third party, and
subsequent reconveyance of all or any portion of the Property by any such third
party to subsequent transferees; and (f) conveyance of title to the Property to
Lenders through power of sale, process of foreclosure, or by conveyance in lieu
of foreclosure of the Deed of Trust; provided, however, that Borrower will not
be liable for damages resulting from Hazardous Conditions which are determined
either by a written agreement or stipulation between Borrower and Lenders or, if
Borrower and Lenders are unable to agree or stipulate, a final judicial or
administrative action (after all available appeals have been taken or waived) to
have been introduced to the Property from and after the date upon which Lenders
take possession of the Property pursuant to an Order of Receivership, power of
sale, process of foreclosure, or deed in lieu of foreclosure; provided, however,
that the obligations of Borrower under this Agreement will finally cease and
terminate upon the final expiration of any applicable statute of limitation of
actions as to any potential Claim.
The obligations of Borrower under this Agreement are separate and
distinct from the obligations of Borrower under the Loan Agreement. This
Agreement may be enforced by Lenders without regard to any other rights and
remedies Lenders may have against Borrower under the Loan Agreement and without
regard to any limitations on Lenders' recourse as may be provided in the Loan
Agreement; provided, however, that a default by Borrower under this Agreement
will constitute a default under the Loan Agreement. Enforcement of this
Agreement will not be deemed to constitute an action for recovery of Borrower's
indebtedness under the Loan Agreement nor for recovery of a deficiency judgment
against Borrower following exercise of Borrower's remedies under the Deed of
Trust. Borrower expressly and specifically agrees that Lenders may bring and
prosecute a separate action or actions against Borrower hereunder whether or not
Lenders have brought an action against Borrower under the Loan Agreement.
10. Default Interest. Any Claims and other payments required to be
paid by Borrower to Lenders under this Agreement which are not paid on demand
therefor will thereupon be considered "Delinquent," and will result in and
constitute a default hereunder. In addition to all other rights and remedies of
Lenders against Borrower as provided herein, or under applicable law, Borrower
will pay to Lenders, immediately upon demand therefor, Default Interest (as
defined below) on any such payments which are or have become Delinquent. Default
Interest will be paid by Borrower from the date such payment becomes Delinquent
through and including the date of payment of such Delinquent sums. As used
herein, "Default Interest" will be equal to the rate of interest charged for a
payment default
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<PAGE> 8
under the Loan Agreement, but in any event not to exceed the maximum rate of
interest permitted to be contracted for under Texas law. If, in any circumstance
whatsoever, interest would otherwise be payable to Lenders in excess of the
maximum lawful amount, and if in any circumstance Lenders shall ever receive
anything of value deemed interest by applicable law in excess of the maximum
lawful amount, and if permitted by applicable law, an amount equal to any
excessive interest shall be applied to the reduction of advances under the Loan
Agreement and not to the payment of interest, or if such excessive interest
exceeds the unpaid advances under the Loan Agreement, such excess shall be
refunded to Borrower. Borrower expressly and specifically agrees that any
Default Interest charged to Borrower hereunder will in no manner or respect
constitute a penalty or interest under the Loan Agreement, with the express
understanding that this Agreement and Borrower's obligations hereunder
constitute separate obligations of Borrower independent of the Loan Agreement.
11. Administrative Agent for Lenders. The Lenders have appointed
FUNB to act as administrative agent on behalf of all of the Lenders in
connection with the Loan. Accordingly, FUNB shall be entitled to exercise the
rights and remedies of the Lenders hereunder as agent for each of the Lenders.
Any notice provided by FUNB to the Borrower shall be deemed provided to Borrower
by each of the Lenders, and any notice from Borrower which states it is to FUNB
as agent for the Lenders hereunder, shall be deemed to be given to each of the
Lenders.
12. Miscellaneous. If there is more than one party executing this
Agreement as an indemnitor, each such party agrees that (i) the obligations of
Borrower hereunder are joint and several, (ii) a release of any one or more such
parties or any limitation of this Agreement in favor of or for the benefit of
one or more such parties will not in any way be deemed a release of or
limitation in favor of or for the benefit of any other party, and (iii) a
separate action hereunder may be brought and prosecuted against one or more such
parties. If any term of this Agreement or any application thereof will be
invalid, illegal or unenforceable, the remainder of this Agreement and any other
application of such term will not be affected thereby. No delay or omission in
exercising any right hereunder will operate as a waiver of such right or any
other right. This Agreement will be binding upon, inure to the benefit of and be
enforceable by Borrower and Lenders, and their respective successors and
assigns. This Agreement will be governed and construed in accordance with the
laws of the State of Texas. The parties hereby stipulate that jurisdiction and
venue for purposes of enforcement of this Agreement and adjudication of the
respective rights and obligations of the parties shall be in the Texas circuit
court in the judicial circuit in which the Property is located.
13. Conflict. In the event of conflict between the terms and
conditions hereunder and the terms and conditions of the Loan Agreement, the
terms and conditions of the Loan Agreement will govern.
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<PAGE> 9
14. Waiver of Defenses. In any action, suit or proceeding relating
to this Agreement, Borrower and Lenders waive the right to interpose a defense
of laches, failure of consideration or mutuality of remedy.
8
<PAGE> 10
IN WITNESS WHEREOF, Borrower and Lenders have executed this Agreement
as of the date first above written.
BORROWER:
KOGER EQUITY, INC., a Florida corporation
By:/s/ G. Danny Edwards
------------------------
Name: G. Danny Edwards
----------------------
Title: Treasurer
---------------------
LENDER:
FIRST UNION NATIONAL BANK, a
national association, as Agent
By: /s/ Andrew J. Hogshead
------------------------
Name: J. Andrew Hogshead
----------------------
Title:Vice President
---------------------
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<PAGE> 11
EXHIBIT A
DESCRIPTION OF PROPERTY
10
<PAGE> 1
EXHIBIT 10(k)(7)(d)
ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
FROM
KOGER EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
<PAGE> 2
- --------------------------------------------------------------------------------
ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
- --------------------------------------------------------------------------------
THIS ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS (this "Assignment")
is made and executed this 30th day of December, 1998, by
KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 8880
Freedom Crossing Trail, Jacksonville, Florida 32256 Attention: J.C. Teagle,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Lender"), for the
Lenders (as such term is defined in the Loan Agreement, as hereinafter defined),
whose address is 301 South College Street, Charlotte, North Carolina 28288
Attention: First Union Capital Markets Group. The terms Borrower and Lender,
whenever hereinafter used will be construed to refer to and include the heirs,
legal representatives, executors, administrators, successors and assigns of said
parties.
BACKGROUND. Borrower is indebted to Lender (the "Loan") pursuant to the
following Substitution Revolving Promissory Notes and Revolving Promissory
Notes: (i) Substitution Revolving Promissory Note dated as of even date herewith
made by Borrower payable to the order of FUNB in the original principal amount
of $45,000,000, (ii) the Substitution Revolving Promissory Note dated as of even
date herewith made by Borrower payable to the order of AmSouth in the original
principal amount of $35,000,000, (iii) the Substitution Revolving Promissory
Note dated as of even date herewith made by Borrower payable to the order of GFB
in the original principal amount of $35,000,000, (iv) the Revolving Promissory
Note dated as of even date herewith made by Borrower payable to the order of
Citizens in the original principal amount of $20,000,000, and (v) the Revolving
Promissory Note dated as of even date herewith made by Borrower payable to the
order of Compass in the original principal amount of $15,000,000 (the "Notes"),
secured by and subject to, among other documents, that certain Deed of Trust,
Assignment of Leases and Rents, and Security Agreement (the "Deed of Trust")
encumbering real property and improvements now or hereafter located thereon
located in Bexar County, Texas, and being more particularly described on
attached Exhibit A, (the "Property"), and by a certain Second Amended and
Restated Revolving Credit Loan Agreement dated as of December 30, 1998 (the
"Loan Agreement") setting forth certain terms, covenants and conditions with
respect to such indebtedness, all being dated as of even date herewith, given by
Borrower
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<PAGE> 3
to Lender, which Notes, Deed of Trust and Loan Agreement, this Assignment, and
other related loan documents, together with any modifications, extensions and
amendments thereof, collectively are referred to herein as the "Loan Documents."
In order to further secure the Obligations, as such term is defined in the Loan
Agreement, Lender has requested, and Borrower has agreed to provide, this
Assignment on the terms, covenants and conditions hereinafter set forth.
Capitalized terms not defined herein shall have the meanings ascribed
to them in the Loan Agreement.
ACCORDINGLY, as an inducement to Lender to make the Loan to Borrower,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and for the purpose of further securing the
observance and performance of the Obligations, Borrower and Lender hereby agree
as follows:
1. Assignment of Contract Documents. Borrower, to the extent the
same are assignable, hereby grants, transfers and assigns to Lender, its
successors and assigns, all of Borrower's right, title and interest in and to
those contracts, licenses, permits, agreements, approvals and other documents
described on attached Exhibit B (hereinafter, together with any changes,
extensions, revisions, modifications or guarantees of performance thereof,
called the "Contract Documents") relating to the acquisition, development,
ownership or use of the Property. Lender agrees that upon the payment and
performance in full of all the Obligations, this assignment shall become null
and be void and of no further force and effect.
2. Representations and Warranties. Borrower represents and
warrants to Lender, its successors and assigns, as follows:
(a) There is no assignment of any of Borrower's rights under any
of the Contract Documents to any person or entity, other than Lender.
(b) Borrower is not in default under any of the Contract Documents
and knows of no default on the part of any other party to any of the Contract
Documents.
(c) Borrower has not done nor omitted to do any act so as to be
estopped from exercising any of its rights under any of the Contract Documents.
(d) Borrower is not prohibited under any agreement with any other
person or under any judgment or decree from the execution and delivery of this
assignment or the performance of each and every covenant of Borrower hereunder
or in the Contract Documents, except as may be set forth in the Contract
Documents.
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<PAGE> 4
(e) No action has been brought or threatened which would in any
way prohibit or impair the execution and delivery of this assignment or the
performance of each and every covenant of Borrower hereunder or in the Contract
Documents.
3. Performance of Obligations under Contract Documents. Borrower
will (i) fulfill, perform and observe each and every condition and covenant of
Borrower contained in any of the Contract Documents; (ii) give prompt notice to
Lender of any claim of default under any of the Contract Documents given to
Borrower or given by Borrower, together with a complete copy or statement of any
information submitted or referenced in support of such claim; (iii) at the sole
cost and expense of Borrower and in the exercise of sound business judgment,
enforce the performance and observance of each and every covenant and condition
of the Contract Documents to be performed or observed by any other party to any
of the Contract Documents; and (iv) appear in and defend any action growing out
of or in any manner connected with any of the Contract Documents.
4. Modifications and Waivers of Contract Documents. Except in the
ordinary course of business and in the exercise of sound business judgment,
Borrower will not (i) modify the terms of the Contract Documents unless required
so to do by the terms of the Contract Documents or by law; or (ii) waive, or
release any person from the observance or performance of any obligation to be
performed under the terms of the Contract Documents or liability on account of
any warranty given by them, unless consented to by Lender in its reasonable
discretion.
5. Rights Assigned. The rights assigned hereunder include all of
Borrower's right and title (i) to modify the Contract Documents; (ii) to
terminate the Contract Documents; and (iii) to waive, or release the performance
or observance of any obligation or condition of the Contract Documents;
provided, however, these rights shall not be exercised by Lender unless Borrower
is in default hereunder or an Event of Default has occurred under the other Loan
Documents.
6. Defaults. Borrower shall be in default under this Assignment
upon the occurrence of any of the following events:
(a) Should Borrower fail to perform or observe any covenant of
Borrower contained in this Assignment, and the same is not cured within ten (10)
days after notice of such default is provided by Lender to Borrower;
(b) Should any representation or warranty of Borrower herein
contained prove untrue or misleading in any material respect; or
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<PAGE> 5
(c) Should Borrower fail to perform promptly any undertaking of
Borrower set forth in any of the Contract Documents, and the same is not cured
within ten (10) days after notice of such default is provided by Lender to
Borrower.
A default of Borrower under this Assignment will constitute an Event of
Default under the other Loan Documents.
7. Remedies.
(a) Upon the occurrence of a default hereunder, or an Event of
Default as defined in the Loan Agreement, Lender may exercise its remedies as
provided in the Loan Agreement, and in addition to such remedies may take
possession of all Contract Documents constituting plans and specifications, site
plans, surveys and architectural or engineering drawings or sketches reasonably
required by Lender in the exercise of its rights and remedies hereunder.
Furthermore, should Borrower fail to perform or observe any covenant or comply
with any condition contained in any of the Contract Documents and such failure
would cause irreparable injury to the Property including, but not limited to,
the revocation or expiration of any permit or license issued in connection with
the use of the Property, then Lender, but without obligation to do so, without
notice to or demand on Borrower, and without releasing Borrower from its
obligations to do so, may perform such covenant or condition and, to the extent
that Lender shall incur any costs or pay any monies in connection therewith,
including any costs or expenses of litigation, such costs, expense or payment
shall be included in the indebtedness secured hereby and by the Deed of Trust
and shall bear interest from the payment of such costs, monies or expenses
thereof at the then applicable rate set forth in the Notes for amounts advanced
by Lender on behalf of Borrower.
(b) Borrower hereby indemnifies and agrees to hold harmless Lender
from and against any and all losses, costs, damages, fees and expenses
whatsoever associated with the exercise of Lender's rights under this Assignment
and shall release Lender from all liability whatsoever for the exercise of such
rights and all actions taken pursuant thereto, not including any negligent
actions of Lender.
(c) The remedies herein provided shall be in addition to and not
in substitution for the rights and remedies which would otherwise be vested in
Lender in any of the other Loan Documents, all of which rights and remedies are
specifically reserved by Lender. The failure to exercise any of the remedies
herein provided shall not constitute a waiver thereof, nor shall the use of any
of the remedies hereby provided prevent the subsequent or concurrent resort to
any other remedy or remedies. It is intended that this clause shall be broadly
construed so that all remedies herein provided for or otherwise available to
Lender shall remain available to Lender until all sums due it by reason of this
Assignment have been paid to it in full and all obligations incurred by it in
connection with the
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<PAGE> 6
construction or operation of the contemplated improvements on the Property have
been fully discharged without loss or damage to Lender.
8. No Obligation of Lender. Lender shall not be obligated to
perform or discharge any obligation of Borrower under any of the Contract
Documents, and Borrower agrees to indemnify and hold Lender harmless against any
and all liability, loss or damage which Lender may incur under any of the
Contract Documents or under or by reason of this Assignment and of and from all
claims and demands whatsoever which may be asserted against Lender by reason of
an act of Lender under any of the terms of this Assignment or under the Contract
Documents, provided that Lender does not perform such acts in a negligent
manner.
9. Miscellaneous. This Assignment shall be binding upon Borrower,
its successors and assigns, and shall inure to the benefit of Lender, its
successors, successors in title and assigns. If any term of this Assignment or
any application thereof will be invalid, illegal or unenforceable, the remainder
of this Assignment and any other application of such term will not be affected
thereby. This Assignment shall be governed by and construed in accordance with
the laws of the State of Texas. In the event of conflict between the terms and
conditions of this Assignment and the terms and conditions of the Loan
Agreement, the terms and conditions of the Loan Agreement will govern.
10. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, BORROWER, THE AGENT, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THIS ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT
FOR THE LENDERS TO MAKE THE LOAN TO BORROWER, AND SHALL BE SUBJECT TO NO
EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
<PAGE> 7
IN WITNESS WHEREOF, the undersigned have caused this Assignment to be
executed by their authorized officers as of the day and year first above
written.
BORROWER:
KOGER EQUITY, INC.
a Florida corporation
By: /s/ G. Danny Edwards
------------------------------
Name: G. Danny Edwards
----------------------------
Title: Treasurer President
------------------
LENDER:
FIRST UNION NATIONAL BANK, a
national association, as Agent
By:/s/ Andrew J. Hogshead
------------------------------
Name:Andrew J. Hogshead
------------------------------
Title: Vice President
------------------
Schedule of Exhibits:
Exhibit A Description of Property
Exhibit B Description of Contract Documents
6
<PAGE> 8
EXHIBIT A
DESCRIPTION OF PROPERTY
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EXHIBIT B
DESCRIPTION OF CONTRACT DOCUMENTS
(a) All contracts or agreements, now existing or hereafter executed, with
general contractors, subcontractors, materialmen, suppliers and/or
laborers in connection with or pertaining to the construction of
buildings or any other improvements on the Property.
(b) Any contracts or agreements for land surveyor services between Borrower
and any surveyor which is entered into with respect to the surveys to
be prepared for the Property; and all surveys, surveyor costs, and maps
prepared by any surveyor in connection with the Property.
(c) Any agreements for architectural/engineering services between Borrower
and any architect/engineer which is entered into with respect to the
construction of improvements on the Property, and all drawings, plans
and specifications, and site plans prepared by any architect/engineer
in connection with the construction of improvements on the Property.
(d) All warranties and guaranties relating to improvements now or hereafter
constructed or installed on the Property.
(e) Any management agreement between Borrower and a project operation
manager related to the Property.
(f) Any development fee agreement between Borrower and a project
development manager related to the Property.
(g) Any and all permits, licenses or other authorizations and approvals in
favor of or in the name of Borrower or running with title to the
Property, now or hereafter existing or granted, with respect to the
ownership, development, use and occupancy of the Property for its
intended purpose, including without limitation, building and excavation
permits, plat and subdivision approvals, certificates of occupancy or
completion, permits for driveway connection and highway signalization,
storm water management, water wells, water distribution systems, sewage
collection systems, dredge and fill, environmental protection,
historical or archaeological protection, and any other permit, license,
or other authorization necessary or advisable to comply with any
governmental requirements concerning the Property or its intended use,
or to comply with any private agreement concerning such Property to
which
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Borrower is a party or under or in compliance with which Borrower is
bound to perform.
(h) Any and all utility service agreements wherein a utility company and/or
a governmental utility service provider has agreed to provide utilities
to the Property.
(i) Any agreement to provide sewer effluent for irrigation of the Property.
(j) All contracts, binders or other agreements between Borrower and a buyer
of the Property for the purchase and sale of all or any part of the
Property, including such contract binders or other agreements which may
hereafter come into existence with respect to the Property.
<PAGE> 1
EXHIBIT 10(K)(8)
UNCONDITIONAL GUARANTY
December 30, 1998
Koger Equity, Inc.
8880 Freedom Crossing Trail
Jacksonville, Florida 32256
("Borrower")
Koger Real Estate Services, Inc.
8880 Freedom Crossing Trail
Jacksonville, Florida 32256
Southeast Properties Holding Corporation
8880 Freedom Crossing Trail
Jacksonville, Florida 32256
(collectively, "Guarantor")
First Union National Bank,
as Agent for the Lenders
One First Union Center
301 South College Street
Charlotte, North Carolina 28288
(hereinafter referred to as "Agent")
To induce Agent to make, extend or renew loans, advances, credit, or other
financial accommodations to or for the benefit of Borrower, and in
consideration of loans, advances, credit, or other financial accommodations
made, extended or renewed to or for the benefit of Borrower, Guarantor hereby
absolutely, irrevocably for the benefit of the Lenders (as defined in the Loan
Agreement) and unconditionally guarantees to Agent and its successors, assigns
and affiliates the timely payment and performance of all liabilities and
obligations of Borrower to Agent, under the Second Amended and Restated
Revolving Credit Loan Agreement by and between Borrower, Agent, and the Lenders
(as defined therein) dated as of December 30, 1998 (the "Loan Agreement"), or
under any promissory note in favor of any of the Lenders issued in connection
with the Loan Agreement, however and whenever incurred or evidenced, whether
primary, secondary, direct, indirect, absolute, contingent, due or to become
due, now existing or hereafter contracted or acquired, and all modifications,
extensions or renewals thereof, including without limitation all principal,
interest, charges, and costs and expenses incurred thereunder (including
attorneys' fees and other costs of collection incurred, regardless of whether
suit is commenced) (collectively, the "Guaranteed Obligations").
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Guarantor further covenants and agrees:
GUARANTORS' LIABILITY. This Guaranty is a continuing and unconditional guaranty
of payment and performance and not of collection. This Guaranty does not impose
any obligation on Agent to extend or continue to extend credit or otherwise
deal with Borrower at any subsequent time. This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
the Guaranteed Obligations is rescinded, avoided or for any other reason must
be returned by Agent or any Lender, and the returned payment shall remain
payable as part of the Guaranteed Obligations, all as though such payment had
not been made. Except to the extent the provisions of this Guaranty give the
Agent or any Lender additional rights, this Guaranty shall not be deemed to
supersede or replace any other guaranties given to Agent or any Lender by
Guarantor; and the obligations guaranteed hereby shall be in addition to any
other obligations guaranteed by Guarantor pursuant to any other agreement of
guaranty given to Agent or any Lender and other guaranties of the Guaranteed
Obligations.
APPLICATION OF PAYMENTS, BANK LIEN AND SET-OFF. Monies received from any source
by Agent or any Lender for application toward payment of the Guaranteed
Obligations may be applied to such Guaranteed Obligations in any manner or
order deemed appropriate by Agent or any Lender. If a Default occurs, Agent or
any Lender is authorized to exercise its right of set-off or to foreclose its
lien against the any funds of Guarantor held by Agent or any Lender, without
advance notice.
CONSENT TO MODIFICATIONS. GUARANTOR CONSENTS AND AGREES THAT AGENT MAY FROM
TIME TO TIME, IN ITS SOLE DISCRETION, WITHOUT AFFECTING, IMPAIRING, LESSENING
OR RELEASING THE OBLIGATIONS OF GUARANTOR HEREUNDER: (a) extend or modify the
time, manner, place or terms of payment or performance and/or otherwise change
or modify the credit terms of the Guaranteed Obligations; (b) increase, renew,
or enter into a novation of the Guaranteed Obligations; (c) waive or consent to
the departure from terms of the Guaranteed Obligations; (d) permit any change
in the business or other dealings and relations of Borrower or any other
guarantor with Agent or any Lender; (e) proceed against, exchange, release,
realize upon, or otherwise deal with in any manner any collateral that is or
may be held by Agent or any Lender in connection with the Guaranteed
Obligations; and (f) proceed against, settle, release, or compromise with
Borrower, any insurance carrier, or any other person or entity liable as to any
part of the Guaranteed Obligations, and/or subordinate the payment of any part
of the Guaranteed Obligations to the payment of any other obligations, which
may at any time be due or owing to Agent or any Lender; all in such manner and
upon such terms as Agent may deem appropriate, and without notice to or further
consent from Guarantor. No invalidity, irregularity, discharge or
unenforceability of, or action or omission by Agent relating to any part of,
the Guaranteed Obligations or any security therefor shall affect or impair this
Guaranty.
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WAIVERS AND ACKNOWLEDGMENTS. GUARANTOR WAIVES AND RELEASES THE FOLLOWING
RIGHTS, DEMANDS, AND DEFENSES that such Guarantor may have with respect to
Agent or any Lender and collection of the Guaranteed Obligations: (a)
promptness and diligence in collection of any of the Guaranteed Obligations
from Borrower or any other person liable thereon, and in foreclosure of any
security interest serving as collateral for the Guaranteed Obligations; (b) any
law or statute that requires that Agent or any Lender make demand upon, assert
claims against, or collect from Borrower or other persons or entities,
foreclose any security interest, exhaust any remedies, or take any other action
against Borrower or other persons or entities prior to making demand upon,
collecting from or taking action against any Guarantor with respect to the
Guaranteed Obligations, including any such rights Guarantor might otherwise
have had under any applicable law; (c) any law or statute that requires that
Borrower or any other person be joined in, notified of or made part of any
action against Guarantor; (d) that Agent or any Lender preserve, insure or
perfect any security interest in collateral or sell or dispose of collateral in
a particular manner or at a particular time; (e) notice of extensions,
modifications, renewals, or novations of the Guaranteed Obligations, of any new
transactions or other relationships between Agent, any Lender, Borrower and/or
any guarantor, and of changes in the financial condition of, ownership of, or
business structure of Borrower or any other guarantor; (f) presentment,
protest, notice of dishonor, notice of default, demand for payment, notice of
intention to accelerate maturity, notice of acceleration of maturity, notice of
sale, and all other notices of any kind whatsoever; (g) the right to assert
against Agent or any Lender any defense (legal or equitable), set-off,
counterclaim, or claim that Guarantor may have at any time against Borrower or
any other party liable to Agent or any Lender; (h) all defenses relating to
invalidity, insufficiency, unenforceability, enforcement, release or impairment
of Agent's or any Lender's lien on any collateral, of the Loan Documents, or of
any other guaranties held by Agent or any Lender; (i) any claim or defense that
acceleration of maturity of the Guaranteed Obligations is stayed against
Guarantor because of the stay of assertion or of acceleration of claims against
any other person or entity for any reason including the bankruptcy or
insolvency of that person or entity; and (j) the benefit of any exemption
claimed by Guarantor. Guarantor acknowledges and represents that Guarantor has
relied upon its own due diligence in making its own independent appraisal of
Borrower, Borrower's business affairs and financial condition, and any
collateral; Guarantor will continue to be responsible for making its own
independent appraisal of such matters; and Guarantor has not relied upon and
will not hereafter rely upon Agent or any Lender for information regarding
Borrower or any collateral.
INTEREST. Regardless of any other provision of this Guaranty or other Loan
Documents, if for any reason the effective interest on any of the Guaranteed
Obligations should exceed the maximum lawful interest, at the time performance
of such provision will be due, then ipso facto, the obligation to be fulfilled
will be reduced
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to the maximum limit of such validity, and if for any circumstances whatsoever
Agent will ever receive interest, the amount of which would exceed the highest
lawful rate, such amount which would be excessive interest will be applied to
the reduction of the principal balance remaining unpaid under the Guaranteed
Obligations, and not to the payment of interest. At all times thereafter the
rate of interest in effect will continue at such maximum rate until otherwise
adjusted in accordance with the terms of this Guaranty and the Loan Agreement.
ATTORNEY'S FEES AND OTHER COSTS OF COLLECTION. Guarantor shall pay all of
Agent's and any Lender's reasonable expenses incurred to enforce or collect any
of the Guaranteed Obligations, including, without limitation, reasonable
arbitration, paralegals', attorneys' and experts' fees and expenses, whether
incurred without the commencement of a suit, in any suit, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding.
MISCELLANEOUS. (a) ASSIGNMENT. This Guaranty and the other Loan Documents shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and assigns. Agent's interests in and
rights under this Guaranty and the other Loan Documents are freely assignable,
in whole or in part, by Agent. Any assignment shall not release Guarantor from
the Guaranteed Obligations. (b) APPLICABLE LAW; CONFLICT BETWEEN DOCUMENTS.
This Guaranty and the other Loan Documents shall be governed by and construed
under the laws of the State of North Carolina. If the terms of this Guaranty
should conflict with the terms of any commitment letter that survives closing,
the terms of this Guaranty shall control. (c) JURISDICTION. Guarantor
irrevocably agrees to non-exclusive personal jurisdiction in the State of North
Carolina. (d) SEVERABILITY. If any provision of this Guaranty or of the other
Loan Documents shall be prohibited or invalid under applicable law, such
provision shall be ineffective but only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty or other document. (e) NOTICES. Any
notices to Guarantor shall be sufficiently given, if in writing and mailed or
delivered to Guarantor's address shown above or such other address as provided
hereunder, and to Agent, if in writing and mailed or delivered to Agent's
office address shown above or such other address as Agent may specify in
writing from time to time. In the event that Guarantor changes its address at
any time prior to the date the Guaranteed Obligations are paid in full,
Guarantor agrees to promptly give written notice of said change of address by
registered or certified mail, return receipt requested, all charges prepaid.
(f) PLURAL; CAPTIONS. All references in the Loan Documents to borrower,
guarantor, person, document or other nouns of reference mean both the singular
and plural form, as the case may be, and the term "person" shall mean any
individual, person or entity. The captions contained in the Loan Documents are
inserted for convenience only and shall not affect the meaning or
interpretation of the Loan Documents. (g) BINDING CONTRACT. Guarantor, by
execution of and Agent by acceptance of this Guaranty, agree that each
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party is bound to all terms and provisions of this Guaranty. (h) AMENDMENTS,
WAIVERS AND REMEDIES. No waivers, amendments or modifications of this Guaranty
and the other Loan Documents shall be valid unless in writing and signed by an
officer of Agent. No waiver by Agent of any Default shall operate as a waiver
of any other Default or the same Default on a future occasion. Neither the
failure nor any delay on the part of Agent in exercising any right, power, or
privilege granted pursuant to this Guaranty and the other Loan Documents shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right,
power or privilege. All remedies available to Agent with respect to this
Guaranty and the other Loan Documents and remedies available at law or in
equity shall be cumulative and may be pursued concurrently or successively. (i)
PARTNERSHIPS. If Guarantor is or becomes a partnership, the obligations,
liabilities and agreements on the part of such Guarantor shall remain in full
force and effect and fully applicable notwithstanding any changes in the
individuals comprising the partnership. The term "Guarantor" includes any
altered or successive partnerships, and predecessor partnership(s) and the
partners shall not be released from any obligations or liabilities hereunder.
(j) LOAN DOCUMENTS. The term "Loan Documents" refers to all documents executed
in connection with the Guaranteed Obligations and may include, without
limitation, that certain credit facility made available by Agent to Borrower
pursuant to that certain Second Amended and Restated Revolving Credit Loan
Agreement as of December 30, 1998 between Agent and Borrower and the other
documents relating thereto, any commitment letters that survive closing, other
loan agreements, other guaranty agreements, security agreements, instruments,
financing statements, mortgages, deeds of trust, deeds to secure debt, letters
of credit and any amendments or supplements thereto(excluding swap agreements
as defined in 11 U.S. Code ss. 101).
ARBITRATION. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Guaranty and other Loan
Documents ("Disputes") between or among parties to this Guaranty shall be
resolved by binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, disputes as to whether a matter is subject to arbitration,
claims brought as class actions, claims arising from Loan Documents executed in
the future, or claims arising out of or connected with the transaction
reflected by this Guaranty.
Arbitration shall be conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in the City of Charlotte, State of
North Carolina. The expedited procedures set forth in Rule 51 et seq. of the
Arbitration Rules shall be applicable to claims of less
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than $1,000,000.00. All applicable statutes of limitation shall apply to any
Dispute. A judgment upon the award may be entered in any court having
jurisdiction. The panel from which all arbitrators are selected shall be
comprised of licensed attorneys. The single arbitrator selected for expedited
procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted or if such person is not available to serve, the single arbitrator
may be a licensed attorney. Notwithstanding the foregoing, this arbitration
provision does not apply to disputes under or related to swap agreements.
PRESERVATION AND LIMITATION OF REMEDIES. Notwithstanding the preceding binding
arbitration provisions, Agent and Guarantor agrees to preserve, without
diminution, certain remedies that any party hereto may employ or exercise
freely, independently or in connection with an arbitration proceeding or after
an arbitration action is brought. Agent and Guarantor shall have the right to
proceed in any court of proper jurisdiction or by self-help to exercise or
prosecute the following remedies, as applicable: (i) all rights to foreclose
against any real or personal property or other security by exercising a power
of sale granted under Loan Documents or under applicable law or by judicial
foreclosure and sale, including a proceeding to confirm the sale; (ii) all
rights of self-help including peaceful occupation of real property and
collection of rents, set-off, and peaceful possession of personal property;
(iii) obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and filing an
involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by
confession of judgment. Preservation of these remedies does not limit the power
of an arbitrator to grant similar remedies that may be requested by a party in
a Dispute.
Guarantor and Agent agree that they shall not have a remedy of punitive or
exemplary damages against the other in any Dispute and hereby waive any right
or claim to punitive or exemplary damages they have now or which may arise in
the future in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially.
CONFLICT WITH CREDIT AGREEMENT. This Unconditional Guaranty is being executed
in connection with the Loan Agreement. In the event of a conflict between the
terms of the Loan Agreement and this Unconditional Guaranty, the terms of the
Loan Agreement shall prevail.
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IN WITNESS WHEREOF, Guarantor, on the day and year first written above, has
caused this Unconditional Guaranty to be executed and delivered by a duly
authorized officer thereof.
Koger Real Estate Services, Inc.,
a Florida corporation
Taxpayer ID No: 59-3213613
By /s/ W. Lawrence Jenkins
-----------------------------------------------------
Name: W. Lawrence Jenkins
----------------------------------------------
Title: Corporate Secretary & Vice President
---------------------------------------------
Southeast Properties Holding Corporation,
a Florida corporation
Taxpayer ID No: 59-3202967
By /s/ W. Lawrence Jenkins
-----------------------------------------------------
Name: W. Lawrence Jenkins
----------------------------------------------
Title: Corporate Secretary & Vice President
---------------------------------------------
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EXHIBIT 99
NEWS
KOGER EQUITY, INC. INCREASES ITS
REVOLVING CREDIT FACILITY
JACKSONVILLE, FLORIDA, January 5, 1999 -- Koger Equity, Inc. (ASE:KE), a
Jacksonville, Florida-based real estate investment trust, announced today that
its secured revolving credit facility has been increased from $100,000,000 to
$150,000,000. The credit facility is provided by First Union National Bank, as
Arranger and Administrative Agent, AmSouth Bank, as Syndication Agent, along
with Guaranty Federal Bank, Citizens Bank of Rhode Island and Compass Bank, as
participants. The facility is for a term of three years.
Victor A. Hughes, Jr., Chairman of the Board and Chief Executive Officer of
Koger said, "We are very pleased with the confidence the institutional lenders
involved with this facility have shown in the Company in these difficult credit
markets. With the increase of this facility, we will be able to completely
satisfy our new construction and development cash needs for our 1999 business
plan."
Koger Equity owns and operates 12.1 million feet of office space located in 15
cities in the Southeast and Southwest. It provides management services to third
parties for 1.6 million feet located in four Southeastern cities.
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