-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OonZ8P6be5oz1pjkrP72pxCVRgN5l3OSBHO5MZIiaxxoz5QWZwsydCUDS/XMcDWL krrL0B5yFjVJCSU7u1hmNw== 0000950144-98-000799.txt : 19980203 0000950144-98-000799.hdr.sgml : 19980203 ACCESSION NUMBER: 0000950144-98-000799 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 19 CONFORMED PERIOD OF REPORT: 19971229 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980202 SROS: AMEX SROS: CSX FILER: COMPANY DATA: COMPANY CONFORMED NAME: KOGER EQUITY INC CENTRAL INDEX KEY: 0000835664 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 592898045 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-20975 FILM NUMBER: 98519474 BUSINESS ADDRESS: STREET 1: 3986 BLVD CTR DR STE 101 CITY: JACKSONVILLE STATE: FL ZIP: 32207 BUSINESS PHONE: 9043983403 MAIL ADDRESS: STREET 1: 3986 BLVD CTR DR STREET 2: SUITE 101 CITY: JACKSONVILLE STATE: FL ZIP: 32207 8-K 1 KOGER EQUITY, INC. 1 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 29, 1997 KOGER EQUITY, INC. ----------------------------------------------------- (Exact name of registrant as specified in its charter) Florida 1-9997 59-2898045 ---------------------------------------------------------------------- (State of incorporation (Commission (IRS Employer or organization) File Number) Identification No.) 3986 Boulevard Center Drive Jacksonville, Florida 32207 ------------------------------------------------------------------------ (Address of principal executive offices) (Zip Code) Registrant's telephone number: (904) 398-3403 ------------------------------------------------------------------------ N/A ------------------------------------------------------------------------ (Former name or former address, if changed since last report) 1 2 Item 5. Other Events. Reference is made to copies of loan documents dated as of December 29, 1997 evidencing a $100 million revolving credit facility provided Koger Equity, Inc. ("Koger") by AmSouth Bank ("AmSouth"), First Union National Bank ("First Union") formerly known as First Union National Bank of Florida, Guaranty Federal Bank F.S.B. ("Guaranty Federal") and Morgan Guaranty Trust Company of New York ("Morgan Guaranty") (collectively, the "Lenders"), which documents are filed as Exhibits 10(k)(1) through 10(k)(5)(d) to this report and to a Koger News Release dated January 12, 1998 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
Exhibit Number Description of Exhibit -------------- ---------------------- 10(k)(1) The Amended and Restated Revolving Credit Loan Agreement dated as of December 29, 1997 between and among Koger and the Lenders. 10(k)(2)(a) The Substitution Revolving Promissory Note dated December 29, 1997 issued by Koger to First Union in the principal amount of up to $35,000,000. 10(k)(2)(b) The Substitution Revolving Promissory Note dated December 29, 1997 issued by Koger to Morgan Guaranty in the principal amount of up to $15,000,000. 10(k)(2)(c) The Revolving Promissory Note dated December 29, 1997 issued by Koger to AmSouth in the principal amount of up to $25,000,000. 10(k)(2)(d) The Revolving Promissory Note dated December 29, 1997 issued by Koger to Guaranty Federal in the principal amount of up to $25,000,000. 10(k)(3)(a) The Amended and Restated Deed to Secure Debt, Assignment of Leases and Rents, and Security Agreement dated as of December 29, 1997 relating to that portion of the Collateral located in DeKalb County, the State of Georgia granted by Koger to, and in favour of, the Lenders.
2 3 10(k)(3)(b) The Assignment of Leases and Rents dated as of December 29, 1997 relating to that portion of the Collateral located in the State of Georgia granted by Koger to, and in favour of, the Lenders. 10(k)(3)(c) The Assignment of Contracts, Licenses and Permits dated as of December 29, 1997 relating to that portion of the Collateral located in the State of Georgia from Koger to, and in favour of, the Lenders. 10(k)(3)(d) The Environmental Indemnification Agreement dated as of December 29, 1997 relating to that portion of the Collateral located in the State of Georgia between and among Koger and the Lenders. 10(k)(4)(a)(i) The Amended and Restated Deed of Trust and Security Agreement dated as of December 29, 1997 relating to that portion of the Collateral located in Guilford County, the State of North Carolina granted by Koger to, and in favour of, the Lenders. 10(k)(4)(a)(ii) The Deed of Trust and Security Agreement dated as of December 29, 1997 relating to that portion of the Collateral located in Mecklenburg County, State of North Carolina granted by Koger to, and in favour of, the Lenders. 10(k)(4)(b) The Assignment of Leases and Rents dated as of December 29, 1997 relating to that portion of the Collateral located in the State of North Carolina from Koger to, and in favour of, the Lenders. 10(k)(4)(c) The Assignment of Contracts, Licenses and Permits dated as of December 29, 1997 relating to that portion of the Collateral located in the State of North Carolina from Koger to, and in favour of, the Lenders. 10(k)(4)(d) The Environmental Indemnification Agreement dated as of December 29, 1997 relating to that portion of the Collateral located in the State of North Carolina between and among Koger and the Lenders. 10(k)(5)(a) The Mortgage, Assignment of Leases and Rents and Security Agreement, dated as of December 29, 1997,
3 4 relating to that portion of the Collateral located in the State of South Carolina granted by Koger to, and in favour of, the Lenders. 10(k)(5)(b)* The Assignment of Leases and Rents dated as of December 29, 1997, relating to that portion of the Collateral located in the State of South Carolina from Koger to, and in favour of, the Lenders. 10(k)(5)(c) The Assignment of Contracts, Licenses and Permits dated as of December 29, 1997 relating to that portion of the Collateral located in the State of South Carolina among and between Koger and the Lenders. 10(k)(5)(d) The Environmental Indemnity Agreement dated as of December 29, 1997 relating to that portion of the Collateral located in the State of South Carolina among and between Koger and the Lenders. 99 Koger Equity, Inc. News Release dated January 12, 1998.
- ------------- * To be filed by amendment. 4 5 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: January 22 , 1998 By: /s/ James L. Stephens ---- ------------------------ James L. Stephens Title: Vice President 5 6 EXHIBIT INDEX The following designated exhibits are filed herewith:
Exhibit - ------- 10(k)(1) The Amended and Restated Revolving Credit Loan Agreement dated as of December 29, 1997 between and among Koger and the Lenders. 10(k)(2)(a) The Substitution Revolving Promissory Note dated December 29, 1997 issued by Koger to First Union in the principal amount of up to $35,000,000. 10(k)(2)(b) The Substitution Revolving Promissory Note dated December 29, 1997 issued by Koger to Morgan Guaranty in the principal amount of up to $15,000,000. 10(k)(2)(c) The Revolving Promissory Note dated December 29, 1997 issued by Koger to AmSouth in the principal amount of up to $25,000,000. 10(k)(2)(d) The Revolving Promissory Note dated December 29, 1997 issued by Koger to Guaranty Federal in the principal amount of up to $25,000,000. 10(k)(3)(a) The Amended and Restated Deed to Secure Debt, Assignment of Leases and Rents, and Security Agreement dated as of December 29, 1997 relating to that portion of the Collateral located in DeKalb County, the State of Georgia granted by Koger to, and in favour of, the Lenders. 10(k)(3)(b) The Assignment of Leases and Rents dated as of December 29, 1997 relating to that portion of the Collateral located in the State of Georgia granted by Koger to, and in favour of, the Lenders. 10(k)(3)(c) The Assignment of Contracts, Licenses and Permits dated as of December 29, 1997 relating to that portion of the Collateral located in the State of Georgia from Koger to, and in favour of, the Lenders. 10(k)(3)(d) The Environmental Indemnification Agreement dated as of December 29, 1997 relating to that portion of the Collateral located in the State of Georgia between and among Koger and the Lenders. 10(k)(4)(a)(i) The Amended and Restated Deed of Trust and Security Agreement dated as of December 29, 1997 relating to that portion of the Collateral located in Guilford County, the State of North Carolina granted by Koger to, and in favour of, the Lenders.
6 7 10(k)(4)(a)(ii) The Deed of Trust and Security Agreement dated as of December 29, 1997 relating to that portion of the Collateral located in Mecklenburg County, State of North Carolina granted by Koger to, and in favour of, the Lenders. 10(k)(4)(b) The Assignment of Leases and Rents dated as of December 29, 1997 relating to that portion of the Collateral located in the State of North Carolina from Koger to, and in favour of, the Lenders. 10(k)(4)(c) The Assignment of Contracts, Licenses and Permits dated as of December 29, 1997 relating to that portion of the Collateral located in the State of North Carolina from Koger to, and in favour of, the Lenders. 10(k)(4)(d) The Environmental Indemnification Agreement dated as of December 29, 1997 relating to that portion of the Collateral located in the State of North Carolina between and among Koger and the Lenders. 10(k)(5)(a) The Mortgage, Assignment of Leases and Rents and Security Agreement, dated as of December 29, 1997, relating to that portion of the Collateral located in the State of South Carolina granted by Koger to, and in favour of, the Lenders. 10(k)(5)(b)* The Assignment of Leases and Rents dated as of December 29, 1997, relating to that portion of the Collateral located in the State of South Carolina from Koger to, and in favour of, the Lenders. 10(k)(5)(c) The Assignment of Contracts, Licenses and Permits dated as of December 29, 1997 relating to that portion of the Collateral located in the State of South Carolina among and between Koger and the Lenders. 10(k)(5)(d) The Environmental Indemnity Agreement dated as of December 29, 1997 relating to that portion of the Collateral located in the State of South Carolina among and between Koger and the Lenders. 99 Koger Equity, Inc. News Release dated January 12, 1998.
- ------------- * To be filed by amendment. 7 EX-10.(K)(1) 2 AMENDED & RESTATED REVOLVING CREDIT 1 EXHIBIT 10(k)(1). U.S. $100,000,000 AMENDED AND RESTATED REVOLVING CREDIT LOAN AGREEMENT Dated as of December 29, 1997 between KOGER EQUITY, INC. as Borrower and FIRST UNION NATIONAL BANK F/K/A FIRST UNION NATIONAL BANK OF FLORIDA and MORGAN GUARANTY TRUST COMPANY OF NEW YORK and AMSOUTH BANK and GUARANTY FEDERAL BANK F.S.B. collectively, the Lenders 2 TABLE OF CONTENTS ARTICLE I DEFINITIONS AND ACCOUNTING TERMS................................1 SECTION 1.1. Certain Defined Terms..........................................1 SECTION 1.2. Accounting Terms...............................................9 ARTICLE II AMOUNT AND TERMS OF ADVANCES....................................9 SECTION 2.1. Advances.......................................................9 SECTION 2.2. Making Advances................................................9 SECTION 2.3. Loan Term Extension; Extension Fee............................11 SECTION 2.4. Unused Fee....................................................12 SECTION 2.5. Repayment of Advances; Prepayments............................12 SECTION 2.6. Interest Rate; Default Rate...................................12 SECTION 2.7. Payments and Computations.....................................13 SECTION 2.8. Evidence of Indebtedness......................................13 SECTION 2.9. Prior LIBOR Advances..........................................13 ARTICLE III CONDITIONS OF LENDING..........................................13 SECTION 3.1. Conditions Precedent to Advances..............................13 SECTION 3.2. Conditions Precedent to Certain Advances......................16 ARTICLE IV ADDITION, SUBSTITUTION AND RELEASE OF COLLATERAL...............16 SECTION 4.1. General Right to Add, Substitute or Release Collateral........16 SECTION 4.2. Requirements for Release of Collateral........................17 SECTION 4.3. Requirements for Addition or Substitution of Collateral.......18 SECTION 4.4. Lenders' Approval of Addition or Substitution of Collateral...21 ARTICLE V CERTAIN MATTERS CONCERNING THE COLLATERAL......................21 SECTION 5.1. Inspections...................................................21 SECTION 5.2. Appraisals....................................................21 SECTION 5.3. Insurance.....................................................22 SECTION 5.4. Taxes and Assessments.........................................22 SECTION 5.5. Tax and Insurance Deposits....................................23 SECTION 5.6. Tax Service Contract; Annual Tax Searches.....................23 SECTION 5.7. Due on Sale...................................................24 SECTION 5.8. Loss and Restoration following Casualty or Condemnation.......24 ARTICLE VI REPRESENTATIONS AND WARRANTIES.................................25 SECTION 6.1. Representations and Warranties of Borrower....................25
3 ARTICLE VII COVENANTS OF BORROWER..........................................27 SECTION 7.1. Affirmative Covenants.........................................27 (a) Costs and Expenses.............................................27 (b) Rent Roll......................................................28 (c) Compliance with Governmental Requirements......................28 (d) Preservation of Corporate Existence............................28 (e) Preservation and Maintenance of Collateral.....................28 (f) Reporting Requirements.........................................29 (g) Notice of Failure to Perform...................................29 SECTION 7.2. Negative Covenants............................................29 (a) Use of Loan Proceeds...........................................29 (b) Structural Alterations.........................................30 (c) Change in Nature of Business...................................30 (d) Transactions with Subsidiaries.................................30 ARTICLE VIII DEFAULT........................................................30 SECTION 8.1. Events of Default.............................................30 SECTION 8.2. Remedies following an Event of Default........................32 SECTION 8.3. Default Interest..............................................32 ARTICLE IX MISCELLANEOUS..................................................32 SECTION 9.1. Prior Loan Agreement..........................................32 SECTION 9.2. Amendments, Etc...............................................32 SECTION 9.3. Indemnification and Limitation of Claims......................32 SECTION 9.4. Notices.......................................................33 SECTION 9.5. No Waiver; Remedies...........................................35 SECTION 9.6. Binding Effect; Assignment....................................35 SECTION 9.7. Governing Law; Jurisdiction and Venue.........................35 SECTION 9.8. Severability..................................................35 SECTION 9.9. Headings......................................................35 SECTION 9.10. Counterparts..................................................36 SECTION 9.11. WAIVER OF TRIAL BY JURY.......................................36 SIGNATURE PAGE; SCHEDULE OF EXHIBITS.................................................35
4 AMENDED AND RESTATED REVOLVING CREDIT LOAN AGREEMENT THIS AMENDED AND RESTATED REVOLVING CREDIT LOAN AGREEMENT dated as of December 29 , 1997, by and between KOGER EQUITY, INC., a Florida corporation, and FIRST UNION NATIONAL BANK, a national banking association f/k/a First Union National Bank of Florida, and 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. BACKGROUND This Amended and Restated Revolving Credit Loan Agreement amends and restates that certain Revolving Credit Loan Agreement dated April 7, 1997 by and among First Union National Bank of Florida, a national banking association, Morgan Guaranty Trust Company of New York, a New York banking corporation and Koger Equity, Inc., a Florida corporation (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): "Advance" means any disbursement of principal out of the available undisbursed Loan Amount by the Lenders to Borrower. "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. 5 "Assignment of Contracts" means each Assignment of Contracts, Licenses and Permits dated the Closing Date or on any Collateral Change Date given by Borrower to and in favor 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. "Borrower" means Koger Equity, Inc., a Florida corporation. "Business Day" means a day of the year on which banks are not required or authorized to close in New York City and Jacksonville, Florida, 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. "Closing Date" means December 29, 1997. "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 or used and useful in connection therewith, 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 or used and useful in connection therewith, now or hereafter mortgaged, assigned, granted or conveyed by Borrower to the Lenders 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. "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. "Debt" means, at any time, without duplication, (A) as shown on Borrower's balance sheet (i) all indebtedness of Borrower or any Subsidiary for borrowed money or for the deferred purchase price of property or services and (ii) all indebtedness of Borrower or any Subsidiary evidenced by a note, bond, debenture or similar instrument (whether or not disbursed in full in the case of a construction loan); (B) the face amount of all letters of credit issued for the account of Borrower or any 2 6 Subsidiary and all unreimbursed amounts drawn thereunder; (C) all contingent obligations, including direct or indirect guaranties and completion guaranties, of Borrower or any Subsidiary; (D) all payment obligations of Borrower or any Subsidiary under any interest rate protection agreement (including, without limitation, any interest rate swaps, caps, floors, collars and similar agreements) and currency swaps and similar agreements which were not entered specifically in connection with the Debt referred to in clauses (A), (B) or (C) above; (E) obligations of Borrower or any Subsidiary as lessee under leases which have been or should be, in accordance with GAAP, recorded as capital or financing leases; and (F) liabilities of Borrower or any Subsidiary in respect of unfunded vested benefits under plans covered by Title IV of ERISA. "Default" has the meaning set forth in Section 8.1. "Default Rate" means a rate of interest equivalent to the LIBOR Interest Rate (using LIBOR based on a 6-month Interest Period) plus 7.00%, calculated on the basis of a 360 day year. "EBITDA" means, for any period and without duplication, net earnings (loss) of Borrower for such period (excluding equity net earnings or net loss of Subsidiaries) plus the sum of the following amounts (but only to the extent included in determining net income (loss) for such period): (a) depreciation and amortization expense and other non-cash charges 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 sales 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 sales of assets of Borrower for such period plus (f) distributions of cash received by Borrower during such period from any of its Subsidiaries. "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. "Extension Fee" means a non-refundable fee equivalent to 0.125% of the Loan Amount. "Financial Covenants" has the meaning set forth in Section 3.1(a). 3 7 "FUNB" means First Union National Bank f/k/a First Union National Bank of Florida, a national banking 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. "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. "Indemnification Agreement" means each 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 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 1-month, 2-month, 3-month or 6-month 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. "Koger Net Square Foot" 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 4 8 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, 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 Lenders, assigning to the Lenders all of Borrower's interest in the Leases and Rents relating to the Collateral located in each State. "Lenders" means collectively, FUNB, MGT, AmSouth and GFB and their respective successors and assigns. "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. "LIBOR" means the interest rate at which 1-month, 2-month, 3-month or 6-month deposits (as elected by Borrower) in United States dollars are offered to prime banks in the London interbank market as reported on Telerate page 3750 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 the Borrower's leverage based on the most recent quarter's Borrowing Compliance Certificate measured on a quarterly basis in 5 9 accordance with Section 3.1(a)(i) hereunder ("Borrower's Leverage"). The applicable margins are as follows: (i) if Borrower's Leverage is less than .43:1.00 the LIBOR Interest Rate shall equal LIBOR plus one and one-quarter percent (1.25%) per annum; (ii) if Borrower's Leverage is equal to or greater than .43:1.00 but no greater than .67:1.00, the LIBOR Interest Rate shall equal LIBOR plus 1.375% per annum; and (iii) if Borrower's Leverage is greater than .67:1.00 and less than or equal to 1.00:1.00 the LIBOR Interest Rate shall equal LIBOR plus one and one-half percent (1.5%) 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 $100,000,000.00 United States Dollars. "Loan Documents" means this Agreement, the Notes, the Security Deeds, the Lease Assignments, the Assignments of Contracts, the Indemnification Agreements, and any other instruments, documents, affidavits or certificates given by Borrower to the Lenders 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. "Maturity Date" means April 6, 1999, or such later date as may be established by an extension made pursuant to Section 2.3. "MGT" means Morgan Guaranty Trust Company of New York, a New York banking corporation. "Net Income" means, for any period, Borrower's net income determined in accordance with GAAP, adjusted to omit the straight line treatment of rent. "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 6 10 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 the Closing Date made by Borrower payable to the order of FUNB in the original principal amount of $35,000,000, (ii) the Substitution Revolving Promissory Note dated the Closing Date made by Borrower payable to the order of MGT in the original principal amount of $15,000,000, (iii) the Revolving Promissory Note dated the Closing Date made by Borrower payable to the order of AmSouth in the original principal amount of $25,000,000, and (iv) the Revolving Promissory Note dated the Closing Date made by Borrower payable to the order of GFB in the original principal amount of $25,000,000, together with any renewals, modifications or extensions thereof. "Obligations" means each and every payment and performance covenant, condition or agreement of Borrower to or in favor of the Lenders 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. "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. "Prime Advance" means any Advance bearing interest at the Prime Interest Rate pursuant to Article II. "Prime Interest 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. "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 actual floor area) of the leased premises thereunder, and the rent for the 7 11 leased premises thereunder, and all other information pertaining to such leases as the Lenders shall require. "Reportable Event" means any of the events set forth in Section 4043(b) of ERISA. "Reserve Requirement" means the maximum percentage reserve requirement, if any, applicable to FUNB (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. "SEC" means the federal Securities Exchange Commission. "Security Agreement" means each Security Agreement, 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 Lenders, granting to the Lenders 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, or Mortgage dated the Closing Date or any Collateral Change Date given by Borrower to and in favor of the Lenders or a trustee for the benefit of the Lenders, granting to the Lenders 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. 8 12 "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. "Summary Requirements" means the Summary Requirements for Additions to Collateral Pool Properties attached as Exhibit B. "Title Commitment" has the meaning set forth in Section 4.3(b). "Total Debt Service" means, for any period, an amount equal to the sum of (i) interest (whether paid, accrued or capitalized) actually payable by Borrower on its Debt, and (ii) scheduled payments of principal on such 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. "Total Liabilities" means, at any date, total liabilities of Borrower determined in accordance with GAAP, relating to all wholly-owned properties of Borrower and Borrower's pro rata share of liabilities from consolidated and unconsolidated joint ventures, including Debt, and pro rata share of any joint venture obligations and contingent liabilities. "Unused Fee" means a non-refundable fee equivalent of 0.20% per annum of the weighted average available but undisbursed proceeds under the Loan during the immediately preceding calendar quarter, based on the difference between (a) the Loan Amount (or weighted average thereof during such calendar quarter if the Loan Amount changes during such calendar quarter), and (b) the weighted average outstanding principal balance of the Loan during such calendar quarter. 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 II AMOUNT AND TERMS OF ADVANCES SECTION 2.1. Advances. The Lenders agree, on the terms and conditions set forth in this Agreement, to make Advances to Borrower from time to time during the Loan Term in an aggregate amount not to exceed the Loan Amount. 9 13 Each Advance shall be in an amount not less than $1,000,000 (except that an Advance may be in a lesser amount if such amount constitutes the entire undisbursed principal of the Loan Amount). Subject to the terms and conditions of this Agreement, Borrower may borrow under this Section 2.1, repay under Section 2.5, and reborrow under this Section 2.1, the Loan Amount. 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 Prime 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 Prime Interest Rate; and (2) Borrower shall have delivered to Agent the statements referred to in Section 3.1(c) and Section 3.1(d) 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, the Lenders will make the Advance not later than 2:00 P.M. (Eastern Standard Time) in the amount and on the date requested for such Advance in same-day funds at Agent's office at 301 South College Street, Charlotte, North Carolina, by wire transfer of such Advance on behalf of Borrower to Borrower's account maintained at FUNB, or to such other account as Borrower shall so direct by written notice to FUNB. 10 14 (d) LIBOR Advances shall be subject to the following additional conditions: (1) if, at any time, (A) the Lenders 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 Lenders, 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 the Lenders to obtain funds in the London interbank market to fund or maintain a LIBOR Advance or otherwise to perform its obligations hereunder with respect to any such Advance, the Lenders' 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 Prime Interest 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 Prime 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 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. 11 15 SECTION 2.3. Loan Term Extension; Extension Fee. At the end of the first year of the Loan Term, and at the end of each year of the Loan Term thereafter, if applicable, the Loan shall be subject to review by the Lenders for the purposes of determining the adequacy of the financial condition of Borrower and the condition of the lending relationship between Borrower and the Lenders. Based on such review and provided that no Event of Default exists, the Lenders may, in their discretion, elect to extend the Maturity Date for additional periods of 1 year each, provided, that upon the Lenders' approval, and Borrower's acceptance, of each 1-year extension of the Maturity Date, Borrower shall pay to Agent an Extension Fee as consideration for the Lenders' extension of the Loan Term. If the Lenders decline to extend the Maturity Date, or if Borrower declines to accept the Lenders' extension of the Maturity Date, then no Extension Fee will be payable by Borrower. SECTION 2.4. Unused Fee. 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 Agent for the Lenders in arrears at the end of each calendar quarter. 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 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. Repayments of the outstanding principal amount of any Advance may be made on any Business Day, provided, that repayments received after 2:00 P.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 12 16 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 Prime Advance may be repaid without penalty or premium. 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 Prime Interest 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 Prime Interest Rate for any Advance under and subject to the conditions set forth in Section 2.2, provided that not more than 3 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 Prime Interest 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, 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 Prime Interest Rate, shall be made by the Lenders on the basis of a year of 360 days, and all computations of interest at the Prime Interest 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 Period selection and the Borrower's Leverage on the Closing Date). 13 17 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. ARTICLE III CONDITIONS OF LENDING SECTION 3.1. Conditions Precedent to Advances. 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 be in compliance with the following financial covenants (the "Financial Covenants"): (i) Total Liabilities (including all Debt) of Borrower shall not exceed Shareholders' Equity. (ii) As of the end of each fiscal quarter, distributions or dividends to shareholders shall not exceed Net Income plus Depreciation and Amortization and other non-cash items, less non-expensed capital expenditures (excluding new building, major renovation or rehabilitation and building acquisitions, if funded from non-operational sources) and debt amortization, as determined in accordance with GAAP, for the preceding four fiscal quarters; provided, however, that Borrower may pay distributions or dividends to shareholders in excess of such level solely in the event that Borrower's failure to pay such distributions or dividends would directly cause Borrower to fail to qualify as a REIT. Borrower promptly shall notify FUNB in writing of any such permitted payment of distributions or dividends in excess of such level, setting forth with specificity the reason for such payment. (iii) As of the end of each fiscal quarter, Borrower's EBITDA, less the greater of (a) Borrower's actual capital expenditures (excluding new building, major renovation or rehabilitation and building acquisitions, if funded from non-operational sources) or (b) $1.50 per Koger Net Square Foot owned by Borrower, for the preceding four fiscal quarters shall be at least 1.40 times Total Debt Service. (iv) Borrower's status as a REIT shall be continuing, and Borrower shall continue to be listed as a publicly traded company on a nationally recognized stock exchange. 14 18 (v) The outstanding principal balance of the Loan shall not exceed 60.00% of the aggregate value of the Collateral as initially determined by appraisals reviewed and approved by the Lenders. The Lenders shall not make any Advance unless Borrower shall have pledged or mortgaged Collateral of sufficient value to Lenders (as determined by appraisals reviewed and approved by the Lenders) to ensure compliance with the loan to value ratio set forth in this subsection. Thereafter, the value of the Collateral, and the related limitation on the outstanding principal balance of the Loan, shall be recalculated by Lender not less frequently than quarterly (calculated on a historical rolling 4-quarter basis) using the actual Net Operating Income (less the greater of (a) Borrower's actual capital expenditures (excluding new building, major renovation, or rehabilitation and building acquisitions, if funded from non-operational sources) or (b) $1.50 per Koger Net Square Foot owned by Borrower) generated from the Collateral and the capitalization rates reasonably acceptable to the Lenders to determine borrowing availability of the Loan Amount using the format attached as Exhibit C. In the case of Collateral which has been owned by Borrower less than one (1) year, such that a Net Operating Income figure is not available for the preceding twelve (12) months, Borrower shall use the actual Net Operating Income (less the greater of (a) Borrower's actual capital expenditures (excluding new building, major renovation, or rehabilitation and building acquisitions, if funded from non-operational sources) or (b) $1.50 per Koger Net Square Foot owned by Borrower) generated from the Collateral from the most recent quarter annualized to provide the calculation of the value of such Collateral. All changes to capitalization rates shall be subject to the Lenders' approval, in Lenders' sole discretion. Borrower may cause any portion of the Collateral to be reappraised at any time at Borrower's sole cost and expense using an appraiser reasonably acceptable to Lenders. The Lenders agree to refer to such new appraisals in its determination whether to approve or disapprove any change in capitalization rates for purposes of determining borrowing availability of the Loan Amount. (vi) As of the end of each fiscal quarter, Net Operating Income for such quarter derived from the Collateral (after deducting therefrom appropriate management costs relating to the Collateral), less the greater of Borrower's actual capital expenditures (excluding new building, major renovation or rehabilitation and building acquisitions, if funded from non-operational sources) for such quarter relating to the Collateral or $0.375 per Koger Net Square Foot constituting the Collateral, shall be at least 1.50 times Borrower's interest expense for such quarter attributable to the Loan (including capitalized interest), as determined in accordance with GAAP. 15 19 (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 FUNB shall have received a certificate, substantially in the form attached as Exhibit J, 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, and (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. (d) Concurrently with delivery of the Notice of Borrowing for such Advance, Agent shall have received a certificate of the chief financial officer or chief accounting officer of Borrower, substantially in the form attached as Exhibit J, stating that Borrower is in compliance with 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. 16 20 ARTICLE IV ADDITION, SUBSTITUTION AND RELEASE OF COLLATERAL SECTION 4.1. General Right to Add, Substitute or Release Collateral. 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 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, 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 17 21 such release and the nature of the easement or easements required. 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. 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, on the documentation and information delivered to the Lenders in compliance with 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. 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: 18 22 (a) Prior to any Collateral Change Date, the Lenders shall have ordered 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. (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) 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 five (5) copies 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 19 23 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 five (5) copies of a current environmental assessment of each property to be added to the Collateral, meeting ASTM standards for "Phase I" 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 20 24 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 such matters as the Lenders reasonably may require, including, without limitation, the following: (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) 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 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. 21 25 SECTION 4.4. Lenders' Approval of Addition or Substitution of Collateral. Each of the Lenders shall have fifteen (15) business days from receipt of all due diligence materials reasonably requested by Lenders pursuant to Article IV hereof, to approve any request by Borrower to add or substitute Collateral. If none of the Lenders shall object to the addition or substitution of such Collateral within such fifteen (15) business days, then Borrower's request shall be deemed approved. 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 22 26 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 Lenders may procure such insurance as it deems necessary to protect their sole interest. 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 23 27 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 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 24 28 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 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. 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 25 29 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. (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 26 30 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 at 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 December 31, 1996, 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. (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, free and clear of any liens, encumbrances or mortgages 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, 27 31 as tenants only, Borrower is the landlord under the Leases, and no Subsidiary 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. 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 with the affirmative covenants set forth in this Section 7.1, 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 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 Prime Interest Rate until reimbursed to the Lenders by 28 32 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. (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 certification, in form and content acceptable to the Lenders in its sole discretion, prepared by management and certified as true and correct by the chief financial officer or chief accounting officer of Borrower, confirming Borrower's compliance with the Financial Covenants and setting forth in summary form the financial information and numerical calculations supporting such conclusions. 29 33 (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 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. (iv) 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 3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida, and to make such copies or extracts thereof as the Lenders deems necessary. (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. (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. 30 34 (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 except in the ordinary course of Borrower's business and upon fair and reasonable terms that are no less favorable to it than 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. 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) 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. (d) 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 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 31 35 for any substantial part of its property, or ordering the winding-up, supervision or liquidation of its affairs. (e) 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. (f) 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. (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 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. (i) The Security Agreement 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. 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 Note, all accrued and unpaid interest thereon and all other amounts payable under the Loan Documents to be, and the same shall thereupon forthwith become, due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived by Borrower. 32 36 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. ARTICLE IX MISCELLANEOUS SECTION 9.1. Prior Loan Agreement. This Amended and Restated Revolving Credit Loan Agreement amends and restates that certain Revolving Credit Loan Agreement dated April 7, 1997 by and among First Union National Bank of Florida, a national banking association, Morgan Guaranty Trust Company of New York, a New York banking corporation and Koger Equity, Inc., a Florida corporation (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 9.2. 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 and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. SECTION 9.3. 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 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 33 37 "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 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 9.4. 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. 3986 Boulevard Center Drive, Suite 101 Jacksonville, Florida 32207 Attention: Mr. J.C. Teagle Telefax No. 904-346-1435 If to the Lenders: First Union National Bank 34 38 c/o First Union Capital Markets Group One First Union Center 301 South College Street Charlotte, North Carolina 28288 Attention: Real Estate Portfolio Management Telefax No. 904-361-1833 and Morgan Guaranty Trust Company of New York 60 Wall Street New York, New York 10260 Attention: Rick Dugoff Telefax No. 212-648-5249 and AmSouth Bank 51 West Bay Street Jacksonville, Florida 32247-0788 Attention: Brian Coffee Telefax No. 904-281-7646 and Guaranty Federal Bank F.S.B. 8333 Douglas Avenue Dallas, Texas 75225 Attention: Roger Davis Telefax No. 214-360-1661 SECTION 9.5. No Waiver; Remedies. No failure on the part of 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 9.6. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of Borrower 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. 35 39 SECTION 9.7. Governing Law; Jurisdiction and Venue. The rights and obligations of Borrower 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 Florida, and the rights and obligations of Borrower 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 in the courts of the County of Duval, State of Florida, or the United States District Court for the Northern District of Florida, as the Lenders 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 Lenders 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 9.4 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 9.8. 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 9.9. Headings. Section headings used in this Agreement are for convenience only and shall not affect the construction of this Agreement. SECTION 9.10. 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 9.11. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH ACKNOWLEDGE AND AGREE THAT NONE 36 40 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. [This space intentionally left blank] 37 41 IN WITNESS WHEREOF, Borrower 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 --------------- LENDERS: FIRST UNION NATIONAL BANK f/k/a First Union National Bank of Florida, a national banking association By: /s/ John A. Schissel -------------------------------------- Name: John A. Schissel ------------------------------------ Title: Vice President ----- MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation By: /s/ Richard L. Dugoff -------------------------------------- Name: Richard L. Dugoff ------------------------------------ Title: Vice President ------ AMSOUTH BANK, a state banking corporation By: /s/ Brian Coffee -------------------------------------- Name: Brian Coffee ------------------------------------ Title: Vice President ------ GUARANTY FEDERAL BANK F.S.B., a federal savings bank By: /s/ Lesa B. Balsley -------------------------------------- Name: Lesa B. Balsley ------------------------------------ Title: Vice President / Division Manager ------ 38 42 SCHEDULE OF EXHIBITS: Exhibit A - Description of Real Property Exhibit B - Summary Requirements for Additions to Collateral Pool Properties Exhibit C - Format for Determination of Borrowing Availability 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 39 43 EXHIBIT A - DESCRIPTION OF REAL PROPERTY [Contained herein is the metes and bounds legal descriptions of the property.] 44 EXHIBIT B - SUMMARY REQUIREMENTS FOR ADDITIONS TO COLLATERAL POOL PROPERTIES [Document attached from Loan Commitment.] 45 EXHIBIT C - FORMAT FOR DETERMINATION OF BORROWING AVAILABILITY [Document attached pertaining to the Collateral Pool Loan Availability Calculation.] 46 EXHIBIT D - MINIMUM STANDARDS AND SUPPLEMENTARY REQUIREMENTS FOR SURVEYS [Document attached from the Loan Commitment.] 47 EXHIBIT E - MINIMUM TITLE STANDARDS [Document attached from Loan Commitment.] 48 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 f/k/a First Union National Bank of Florida, a national banking association ("First Union"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("Morgan Guaranty"), AmSOUTH BANK, a state banking corporation, and GUARANTY FEDERAL BANK F.S.B., a national banking association, the following as of the date hereof: 1. Koger understands that the Lenders is relying upon this Certificate, and will continue to rely upon this Certificate, in connection with the transactions contemplated in that certain Amended and Restated Revolving Credit Loan Agreement dated as of December ___, 1997, 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 49 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. 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 ____ day of___ , 199___. 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] 50 EXHIBIT G - SCHEDULE OF BORROWER'S SUBSIDIARIES SOUTHEAST PROPERTIES HOLDING CORPORATION Southeast Properties Holding Corporation ("Southeast"), is 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. (See Footnote #4 to Koger Equity's December 31, 1995 Annual Report for a more detailed discussion of Southeast). KOGER REAL ESTATE SERVICES, INC. Koger Real Estate Services, Inc., a Florida corporation, manages 21 office buildings owned by Centoff Realty Company, Inc., a subsidiary of Morgan Guaranty Trust Company of New York. 51 EXHIBIT H - SCHEDULE OF SUBSIDIARIES' INTEREST IN COLLATERAL NONE 52 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. 53 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. 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 54 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 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 55 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 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 56 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. 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 ______________, 1997. 57 [APPROPRIATE SIGNATURE BLOCKS AND ACKNOWLEDGMENTS TO BE INSERTED] 54 58 EXHIBIT J - FORM OF BORROWING COMPLIANCE CERTIFICATE BORROWING COMPLIANCE CERTIFICATE The undersigned, _______________________________________, the ___________________________ of Koger Equity, Inc. ("Borrower") hereby certifies to First Union National Bank f/k/a First Union National Bank of Florida, Morgan Guaranty Trust Company of New York, AmSouth Bank, and Guaranty Federal Bank F.S.B. (collectively, the "Lenders"), the following pursuant to Section 3.1(c) and 3.1(d) of Amended and Restated Revolving Credit Loan Agreement dated as of December ___, 1997 between Borrower and 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) 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; (c) 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 or Chief Accounting Officer] 59 [this document must include attached Schedule 1 Financial Covenant compliance calculations] 56 EX-10.(K)(2)(A) 3 SUBSTITUTION REVOLVING PROMISSORY NOTE 1 EXHIBIT 10(k)(2)(a) SUBSTITUTION REVOLVING PROMISSORY NOTE $35,000,000.00 St. Marys , Georgia December 29, 1997 FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order of FIRST UNION NATIONAL BANK f/k/a First Union National Bank of Florida, a national banking 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 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 Amended and Restated Revolving Credit Loan Agreement dated December 29, 1997 between Maker, as borrower, and Payee, Morgan Guaranty Trust Company, AmSouth Bank, and Guaranty Federal Bank F.S.B. as 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 any LIBOR Interest Rate or the Prime Interest 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 Prime Advance will be adjusted on a daily basis upon any changes in the Prime Interest 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 1-month, 2-month, 3-month or 6-month deposits (as elected by Maker) in United States dollars are offered to prime banks in the London interbank market as reported on - -------- NOTE: THIS SUBSTITUTION REVOLVING PROMISSORY NOTE SUBSTITUTES AND REPLACES THAT CERTAIN REVOLVING PROMISSORY NOTE FROM MAKER TO PAYEE DATED APRIL 7, 1997. 1 of 5 2 Telerate page 3750 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 Payee 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; (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 upon the most recent quarter's Borrowing Compliance Certificate, measured on a quarterly basis in accordance with Section 3.1(a)(i) of the Loan Agreement ("Maker's Leverage"). The applicable margins are as follows: (i) if Maker's Leverage is less than .43:1.00 the LIBOR Interest Rate shall equal LIBOR plus one and one-quarter percent (1.25%) per annum; (ii) if Maker's Leverage is equal to or greater than .43:1.00 but no greater than .67:1.00, the LIBOR Interest Rate shall equal LIBOR plus 1.375% per annum; and (iii) if Maker's Leverage is greater than .67:1.00 and less than or equal to 1.00:1.00 the LIBOR Interest Rate shall equal LIBOR plus one and one-half percent (1.5%) per annum. (c) "Prime Interest 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, for the actual number of days occurring in the period for which such interest is payable. Interest accrued on the Principal Amount will be due and payable monthly, commencing on January 10, 1998, 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, will be due and payable on April 6, 1999 (the "Maturity Date"), or such later date as may be established by an extension of the Maturity Date pursuant to Section 2.3 of the Loan Agreement. 2 of 5 3 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 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 any 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 Prime Interest 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 3 of 5 4 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 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 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 Florida 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 4 of 5 5 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. 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 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. KOGER EQUITY, INC., a Florida corporation By: /s/ G. Danny Edwards -------------------------------------- Name: G. Danny Edwards ------------------------------------ Its: Treasurer ---------- 5 of 5 EX-10.(K)(2)(B) 4 SUBSTITUTION REVOLVING PROMISSORY NOTE 1 EXHIBIT 10(k)(2)(b) SUBSTITUTION REVOLVING PROMISSORY NOTE $15,000,000.00 St. Marys , Georgia December 29, 1997 FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order of MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York 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 Amended and Restated Revolving Credit Loan Agreement dated December 29, 1997 between Maker, as borrower, and Payee, Agent, AmSouth Bank, and Guaranty Federal Bank F.S.B. as 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 any LIBOR Interest Rate or the Prime Interest 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 Prime Advance will be adjusted on a daily basis upon any changes in the Prime Interest 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 1-month, 2-month, 3-month or 6-month deposits (as elected by Maker) in United States dollars are offered to prime banks in the London interbank market as reported on Telerate page 3750 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 Payee 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 APRIL 7, 1997. 1 of 5 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; (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 upon the most recent quarter's Borrowing Compliance Certificate measured on a quarterly basis in accordance with Section 3.1(a)(i) of the Loan Agreement ("Maker's Leverage"). The applicable margins are as follows: (i) if Maker's Leverage is less than .43:1.00 the LIBOR Interest Rate shall equal LIBOR plus one and one-quarter percent (1.25%) per annum; (ii) if Maker's Leverage is equal to or greater than .43:1.00 but no greater than .67:1.00, the LIBOR Interest Rate shall equal LIBOR plus 1.375% per annum; and (iii) if Maker's Leverage is greater than .67:1.00 and less than or equal to 1.00:1.00 the LIBOR Interest Rate shall equal LIBOR plus one and one-half percent (1.5%) per annum. (c) "Prime Interest 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, for the actual number of days occurring in the period for which such interest is payable. Interest accrued on the Principal Amount will be due and payable monthly, commencing on January 10, 1998, 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, will be due and payable on April 6, 1999 (the "Maturity Date"), or such later date as may be established by an extension of the Maturity Date pursuant to Section 2.3 of the Loan Agreement. 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 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 any 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 Prime Interest 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 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 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 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 Florida 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 4 of 5 5 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 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. KOGER EQUITY, INC., a Florida corporation By: /s/ G. Danny Edwards -------------------------------------- Name: G. Danny Edwards ------------------------------------ Its: Treasurer ------------ 5 of 5 EX-10.(K)(2)(C) 5 REVOLVING PROMISSORY NOTE 1 EXHIBIT 10 (k)(2)(c) REVOLVING PROMISSORY NOTE $25,000,000.00 St. Marys, Georgia December 29, 1997 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 TWENTY-FIVE MILLION AND NO/100 DOLLARS ($25,000,000.00) or so much thereof as may be outstanding from time to time as Advances (the "Principal Amount") pursuant to that certain Amended and Restated Revolving Credit Loan Agreement dated December 29, 1997 between Maker, as borrower, and Payee, Agent, Morgan Guaranty Trust Company, and Guaranty Federal Bank F.S.B. as 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 any LIBOR Interest Rate or the Prime Interest 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 Prime Advance will be adjusted on a daily basis upon any changes in the Prime Interest 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 1-month, 2-month, 3-month or 6-month deposits (as elected by Maker) in United States dollars are offered to prime banks in the London interbank market as reported on Telerate page 3750 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 Payee 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 1 of 5 2 for reserves by dividing that rate by 1.00 minus the Reserve Requirement; (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 upon the most recent quarter's Borrowing Compliance Certificate measured on a quarterly basis in accordance with Section 3.1(a)(i) of the Loan Agreement ("Maker's Leverage"). The applicable margins are as follows: (i) if Maker's Leverage is less than .43:1.00 the LIBOR Interest Rate shall equal LIBOR plus one and one-quarter percent (1.25%) per annum; (ii) if Maker's Leverage is equal to or greater than .43:1.00 but no greater than .67:1.00, the LIBOR Interest Rate shall equal LIBOR plus 1.375% per annum; and (iii) if Maker's Leverage is greater than .67:1.00 and less than or equal to 1.00:1.00 the LIBOR Interest Rate shall equal LIBOR plus one and one-half percent (1.5%) per annum. (c) "Prime Interest 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, for the actual number of days occurring in the period for which such interest is payable. Interest accrued on the Principal Amount will be due and payable monthly, commencing on January 10, 1998, 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, will be due and payable on April 6, 1999 (the "Maturity Date"), or such later date as may be established by an extension of the Maturity Date pursuant to Section 2.3 of the Loan Agreement. 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. 2 of 5 3 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 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 any 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 Prime Interest 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 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 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 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 Florida 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 4 of 5 5 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 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. KOGER EQUITY, INC., a Florida corporation By: /s/ G. Danny Edward ---------------------------------------- Name: G. Danny Edwards -------------------------------------- Its: Treasurer ----------- 5 of 5 EX-10.(K)(2)(D) 6 REVOLVING PROMISSORY NOTE 1 EXHIBIT 10(k)(2)(d) REVOLVING PROMISSORY NOTE $25,000,000.00 St. Marys, Georgia December 29, 1997 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 TWENTY-FIVE MILLION AND NO/100 DOLLARS ($25,000,000.00) or so much thereof as may be outstanding from time to time as Advances (the "Principal Amount") pursuant to that certain Amended and Restated Revolving Credit Loan Agreement dated December 29, 1997 between Maker, as borrower, and Payee, Agent, Morgan Guaranty Trust Company, and AmSouth Bank as 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 any LIBOR Interest Rate or the Prime Interest 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 Prime Advance will be adjusted on a daily basis upon any changes in the Prime Interest 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 1-month, 2-month, 3-month or 6-month deposits (as elected by Maker) in United States dollars are offered to prime banks in the London interbank market as reported on Telerate page 3750 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 Payee 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 1 of 5 2 for reserves by dividing that rate by 1.00 minus the Reserve Requirement; (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 upon the most recent quarter's Borrowing Compliance Certificate, measured on a quarterly basis in accordance with Section 3.1(a)(i) of the Loan Agreement ("Maker's Leverage"). The applicable margins are as follows: (i) if Maker's Leverage is less than .43:1.00 the LIBOR Interest Rate shall equal LIBOR plus one and one-quarter percent (1.25%) per annum; (ii) if Maker's Leverage is equal to or greater than .43:1.00 but no greater than .67:1.00, the LIBOR Interest Rate shall equal LIBOR plus 1.375% per annum; and (iii) if Maker's Leverage is greater than .67:1.00 and less than or equal to 1.00:1.00 the LIBOR Interest Rate shall equal LIBOR plus one and one-half percent (1.5%) per annum. (c) "Prime Interest 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, for the actual number of days occurring in the period for which such interest is payable. Interest accrued on the Principal Amount will be due and payable monthly, commencing on January 10, 1998, 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, will be due and payable on April 6, 1999 (the "Maturity Date"), or such later date as may be established by an extension of the Maturity Date pursuant to Section 2.3 of the Loan Agreement. 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. 2 of 5 3 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 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 any 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 Prime Interest 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 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 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 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 Florida 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 4 of 5 5 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 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. KOGER EQUITY, INC., a Florida corporation By: /s/ G. Danny Edwards -------------------------------------- Name: G. Danny Edwards ------------------------------------ Its: Treasurer ------------ 5 of 5 EX-10.(K)(3)(A) 7 AMENDED & RESTATED DEED 1 EXHIBIT 10(k)(3)(a) 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 DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT FROM KOGER EQUITY, INC. TO FIRST UNION NATIONAL BANK, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AMSOUTH BANK AND GUARANTY FEDERAL BANK F.S.B. Dated as of December 29th, 1997 State: Georgia Section: Township: Range: County: DeKalb Tax I.D.: - --------------------------------- NOTE TO TAX COMMISSIONER: THIS INSTRUMENT SECURES A NOTE CONTAINING A MATURITY DATE OF LESS THAN 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 2 UPON THE RECORDATION OF THIS INSTRUMENT. SEE OFFICIAL CODE OF GEORGIA ANNOTATED SECTION 48-6-61. AMENDED AND RESTATED DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT THIS AMENDED AND RESTATED DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT (this "Indenture"), dated as of December 29th , 1997, 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 banking association ("FUNB"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth"),and GUARANTY FEDERAL BANK F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth, and GFB collectively being referred to as "Grantee"). For purposes of notices permitted or required to be given hereunder, FUNB's mailing address is 301 South College Street, Charlotte, North Carolina 28288 Attention: First Union Capital Markets Group, MGT's mailing address is 60 Wall Street, New York, New York 10260 Attention: Mr. Rick Dugoff, Vice President, JP Morgan. AmSouth's mailing address is 51 West Bay Street, Jacksonville, FL 32247-0788 Attention: Mr. Brian Coffee, Vice President, and GFB's mailing address is 8333 Douglas Avenue, Dallas, TX 75225 Attention: Real Estate Officer. Capitalized terms not otherwise defined herein are defined in Article I. This Indenture amends and restates that certain Deed to Secure Debt, Assignment of Leases and Rents, and Security Agreement recorded in Official Records Book 9393, Page 061, of the Public Records of Dekalb County, Georgia. 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 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 Grantee, (2) be payable in full not later than April 6, 1999, or such later date as may be established by an extension of the Maturity Date (as defined in the Loan Agreement) pursuant to Section 2.3 of the Loan Agreement, and (3) bear interest 1 3 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 $100,000,000.00 (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 Grantor's right, title and interest in 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 2 4 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. 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 national banking association. "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 5 "FUNB" shall mean First Union National Bank f/k/a First Union National Bank of Florida, a national banking 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. "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 Amended and Restated 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 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. 4 6 "Loan Agreement" shall mean that certain Amended and Restated Revolving Credit Loan Agreement dated as of December 29 , 1997 between Grantor and Grantee. "MGT" shall mean Morgan Guaranty Trust Company of New York, a New York banking corporation. "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 $35,000,000, (ii) the Substitution Revolving Promissory Note dated as of even date herewith made by Grantor payable to the order of MGT in the original principal amount of $15,000,000, (iii) the Revolving Promissory Note dated as of even date herewith made by Grantor payable to the order of AmSouth in the original principal amount of $25,000,000, and (iv) the Revolving Promissory Note dated as of even date herewith made by Grantor payable to the order of GFB in the original principal amount of $25,000,000. "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. 5 7 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 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 6 8 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 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 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. 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 7 9 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, conservator, supervisor, rehabilitator (or similar official) of Grantor or for 8 10 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. 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 9 11 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 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 10 12 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 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, 11 13 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 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. 12 14 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. 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: 13 15 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. 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, 14 16 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. 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. 15 17 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 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. 16 18 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 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 17 19 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, counterclaim, 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 18 20 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, 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 19 21 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. 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. 20 22 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 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 21 23 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 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 22 24 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. (c) The information contained in this subparagraph (c) is provided in order that this Indenture shall comply with the requirements of the Uniform Commercial Code, as enacted in the State of Georgia, for instruments to be filed as financing statements. The names of the "Debtor" and the "Secured Party," the identity or corporate structure and residence or principal place of business of "Debtor," and the time period for which "Debtor" has been using or operating under said name and identity or corporate structure without change, are as set forth in 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 as set forth hereinabove. 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 NON-JUDICIAL 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 23 25 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. 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 KOGER EQUITY, INC., a in the presence of: Florida corporation /s/ Alan C. Sheppard, Jr. By: /s/ G. Danny Edwards (SEAL) - ---------------------------------- ---------------------------- Witness Alan C. Sheppard, Jr. Name: G. Danny Edwards ------------------------- Title: Treasurer ------------------------- /s/ Dee Price Attest: /s/ W. Lawrence Jenkins - ---------------------------------- ----------------------- Notary Public Name: W. Lawrence Jenkins ------------------------- Title: Secretary ------------------------ [CORPORATE SEAL] My Commission Expires: Feb. 1, 1999 - ---------------------------------- [NOTARY SEAL] 24 26 EXHIBIT A The Land [Contained herein is the metes and bounds legal descriptions of the property.] 27 EXHIBIT B Permitted Encumbrances [Documents attached were excerpts as shown in Title Commitment.] 28 EXHIBIT C
DEBTOR - ------ NAME: Koger Equity, Inc. CORPORATE STRUCTURE: a Florida corporation PRINCIPAL PLACE OF BUSINESS: 3986 Boulevard Center Drive, Suite 101 Jacksonville, Florida 32207 TIME PERIOD USING NAME WITHOUT CHANGE: June 21, 1988 to present SECURED PARTY NAME: First Union National Bank PRINCIPAL PLACE OF BUSINESS: 301 South College Street Charlotte, North Carolina 28288 AND NAME: Morgan Guaranty Trust Company of New York PRINCIPAL PLACE OF BUSINESS: 60 Wall Street New York, New York 10260 AND NAME: AmSouth Bank PRINCIPAL PLACE OF BUSINESS: 51 West Bay Street, Jacksonville, FL 32247-0788 AND NAME: Guaranty Federal Bank F.S.B. PRINCIPAL PLACE OF BUSINESS: 8333 Douglas Avenue, Dallas, TX 75225
EX-10.(K)(3)(B) 8 ASSIGNMENT OF LEASES AND RENTS 1 EXHIBIT 10(k)(3)(b) 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, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AMSOUTH BANK AND GUARANTY FEDERAL BANK F.S.B. DATED AS OF DECEMBER 29, 1997 ASSIGNMENT OF LEASES AND RENTS GEORGIA PROPERTIES 2 THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made and executed as of this 29th day of December, 1997, from KOGER EQUITY, INC., a Florida corporation ("Assignor"), whose address is 3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention: J.C. Teagle, President, to and in favor of FIRST UNION NATIONAL BANK, a national banking association ("FUNB"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth"), and GUARANTY FEDERAL BANK F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth and GFB collectively being referred to as "Assignee"), 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, FUNB's mailing address is 301 South College Street, Charlotte, North Carolina 28288 Attention: First Union Capital Markets Group, MGT's mailing address is 60 Wall Street, New York, New York 10260 Attention: Mr. Rick Dugoff, Vice President, JP Morgan. AmSouth's mailing address is 51 West Bay Street, Jacksonville, FL 32247-0788 Attention: Mr. Brian Coffee, Vice President, and GFB's mailing address is 8333 Douglas Avenue, Dallas, TX 75225 Attention: Real Estate Officer. R E C I T A L S: A. Assignor is the mortgagor under that certain Amended and Restated 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 DeKalb County, Georgia (the "Deed to Secure Debt"); securing those certain Substitution Revolving Promissory Notes and Revolving Promissory Notes of even date herewith (the "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, 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 GEORGIA PROPERTIES 2 3 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 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 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, GEORGIA PROPERTIES 3 4 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 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 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 South Carolina. If requested by a tenant under any of the Leases or upon Assignee's request, Assignor 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. GEORGIA PROPERTIES 4 5 7. Upon a default under the Notes, 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 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 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 Deed to Secure Debt 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 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 GEORGIA PROPERTIES 5 6 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. IN WITNESS WHEREOF, Assignor has executed this Assignment under seal the day and year first above written. ASSIGNOR: Attest: KOGER EQUITY, INC., a Florida corporation By: /s/ W. Lawrence Jenkins ------------------------------ Name: W. Lawrence Jenkins By: /s/ G. Danny Edwards ---------------------------- ---------------------------- Its: Secretary Name: G. Danny Edwards -------------- -------------------------- Title: Treasurer ------------------------- [AFFIX CORPORATE SEAL] GEORGIA PROPERTIES 6 7 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 29th day of December, 1997. /s/ Dee Price ----------------------------- Notary Public Camden County, Georgia My commission expires: Feb. 1, 1999 ------------ [NOTARIAL SEAL] GEORGIA PROPERTIES 7 8 EXHIBIT A LEGAL DESCRIPTION OF PREMISES [Contained herein is the metes and bounds legal descriptions of the property.] GEORGIA PROPERTIES 8 EX-10.(K)(3)(C) 9 ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS 1 EXHIBIT 10(k)(3)(c) ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS FROM KOGER EQUITY, INC. TO FIRST UNION NATIONAL BANK, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AMSOUTH BANK AND GUARANTY FEDERAL BANK F.S.B. DATED AS OF DECEMBER 29TH , 1997 GEORGIA PROPERTIES 2 - ------------------------------------------------------------------------------ ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS - ------------------------------------------------------------------------------ THIS ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS (this "Assignment") is made and executed this 29th day of December, 1997, by KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention: J.C. Teagle, President, to and in favor of FIRST UNION NATIONAL BANK, a national banking association ("FUNB"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth"), and GUARANTY FEDERAL BANK F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth, and GFB collectively being referred to as "Lender"), which 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. For purposes of notices permitted or required to be given hereunder, FUNB's mailing address is 301 South College Street, Charlotte, North Carolina 28288 Attention: First Union Capital Markets Group, MGT's mailing address is 60 Wall Street, New York, New York 10260 Attention: Mr. Rick Dugoff, Vice President, JP Morgan. AmSouth's mailing address is 51 West Bay Street, Jacksonville, FL 32247-0788 Attention: Mr. Brian Coffee, Vice President, and GFB's mailing address is 8333 Douglas Avenue, Dallas, TX 75225 Attention: Real Estate Officer. BACKGROUND. Borrower is indebted to Lender (the "Loan") pursuant to those certain Substitution Revolving Promissory Notes and Revolving Promissory Notes all of even date herewith (the "Notes") secured by and subject to, among other documents, that certain Amended and Restated Deed to Secure Debt Assignment of Leases and Rents, and Security Agreement (the "Deed to Secure Debt") encumbering real property and improvements now or hereafter located thereon located in Dekalb GEORGIA PROPERTIES 1 3 County, Georgia, and being more particularly described on attached Exhibit A, (the "Property"), and by a certain 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, Deed to Secure Debt 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. 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 GEORGIA PROPERTIES 2 4 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. (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; GEORGIA PROPERTIES 3 5 (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. 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 to Secure Debt 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 GEORGIA PROPERTIES 4 6 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. 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 South Carolina. 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. 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., a in the presence of: Florida corporation /s/ Alan C. Sheppard, Jr. By: /s/ G. Danny Edwards - ------------------------------- ------------------------------------- Witness Name: G. Danny Edwards -------------------------------- Title: Treasurer ------------------------------- Attest: /s/ W. Lawrence Jenkins -------------------------------- Name: W. Lawrence Jenkins -------------------------------- Title: Secretary ------------------------------- [CORPORATE SEAL] GEORGIA PROPERTIES 5 7 LENDER: Signed, sealed and delivered FIRST UNION NATIONAL BANK, in the presence of: a national banking association /s/ L. R. Grames By: /s/ Benjamin F. Williams - --------------------------------- ---------------------------------- Witness Name: Benjamin F. Williams ------------------------------ Title: Senior Vice President ----------------------------- Attest: /s/ Christopher C. Finley ------------------------------ Name: Christopher C. Finley ------------------------------ Title: Vice President ----------------------------- [CORPORATE SEAL] GEORGIA PROPERTIES 6 8 Signed, sealed and delivered MORGAN GUARANTY TRUST in the presence of: COMPANY OF NEW YORK, a New York banking corporation /s/ M. L. Rappaport By: /s/ Richard Dugoff - ---------------------------- ------------------------------------- Witness Name: Richard Dugoff --------------------------------- Title: Vice President -------------------------------- Attest: /s/ Irma Caracciolo --------------------------------- Name: Irma Carracciolo --------------------------------- Title: V. P. & Assistant Secretary -------------------------------- [CORPORATE SEAL] GEORGIA PROPERTIES 7 9 Signed, sealed and delivered AMSOUTH BANK in the presence of: a state banking corporation /s/ Katharine A. Breitmoser By: /s/ Brian Coffee - ---------------------------------- ---------------------------- Witness Name: Brian Coffee ------------------------ Title: Vice President ----------------------- Attest: ------------------------ Name: ------------------------ Title: ----------------------- [CORPORATE SEAL] GEORGIA PROPERTIES 8 10 Signed, sealed and delivered GUARANTY FEDERAL BANK F.S.B., in the presence of: a federal savings bank /s/ Roger C. Davis By: /s/ Lesa B. Balsley - ------------------------------- --------------------------------------- Witness Name: Lesa B. Balsley ----------------------------------- Title: Vice President / Division Manager ---------------------------------- Attest: /s/ Scott Almy ----------------------------------- Name: Scott Almy ----------------------------------- Title: Assistant Secretary ---------------------------------- [CORPORATE SEAL] Schedule of Exhibits: Exhibit A Description of Property Exhibit B Description of Contract Documents GEORGIA PROPERTIES 9 11 EXHIBIT A DESCRIPTION OF PROPERTY [Contained herein is the metes and bounds legal descriptions of the property.] GEORGIA PROPERTIES 12 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 Borrower is a party or under or in compliance with which Borrower is bound to perform. GEORGIA PROPERTIES 13 (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. GEORGIA PROPERTIES EX-10.(K)(3)(D) 10 THE ENVIRONMENTAL INDEMNIFICATION AGREEMENT 1 EXHIBIT 10(k)(3)(d) ENVIRONMENTAL INDEMNIFICATION AGREEMENT FROM KOGER EQUITY, INC. TO FIRST UNION NATIONAL BANK, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AMSOUTH BANK AND GUARANTY FEDERAL BANK F.S.B. DATED AS OF DECEMBER 29, 1997 GEORGIA PROPERTIES 2 ENVIRONMENTAL INDEMNIFICATION AGREEMENT THIS ENVIRONMENTAL INDEMNIFICATION AGREEMENT (this "Agreement") is made and executed as of this 29th day of December, 1997, from KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention: J.C. Teagle, President, to and in favor of FIRST UNION NATIONAL BANK, a national banking association ("FUNB"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth"), and GUARANTY FEDERAL BANK F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth, and GFB collectively being referred to as "Lenders"), which 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. For purposes of notices permitted or required to be given hereunder, FUNB's mailing address is c/o First Union Real Estate Capital Markets, One First Union Center, 301 South College Street, Charlotte, North Carolina 28288 Attention: First Union Capital Markets Group, MGT's mailing address is 60 Wall Street, New York, New York 10260 Attention: Mr. Rick Dugoff, Vice President, JP Morgan. AmSouth's mailing address is 51 West Bay Street, Jacksonville, FL 32247-0788 Attention: Mr. Brian Coffee, Vice President, and GFB's mailing address is 8333 Douglas Avenue, Dallas, TX 75225 Attention: Real Estate Officer. R E C I T A L S : A. Borrower has obtained financing from Lenders pursuant to that certain 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 and Security Agreement in favor of Lenders (the "Deed to Secure Debt") GEORGIA PROPERTIES 1 3 encumbering real property located in Dekalb 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 September 10 , 1997, prepared by ATC Associates, Inc. (the "Environmental 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. GEORGIA PROPERTIES 2 4 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 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 GEORGIA PROPERTIES 3 5 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 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 GEORGIA PROPERTIES 4 6 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 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 GEORGIA PROPERTIES 5 7 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 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, GEORGIA PROPERTIES 6 8 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 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. 12. 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. GEORGIA PROPERTIES 7 9 13. 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. 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 in the presence of: Florida corporation /s/ Janice R. Long By: /s/ G. Danny Edwards - -------------------------------- --------------------------------- Witness Name: G. Danny Edwards ----------------------------- Title: Treasurer ---------------------------- Attest: /s/ W. Lawrence Jenkins ----------------------------- Name: W. Lawrence Jenkins ----------------------------- Title: Secretary ---------------------------- [CORPORATE SEAL] GEORGIA PROPERTIES 8 10 LENDERS: Signed, sealed and delivered FIRST UNION NATIONAL BANK, in the presence of: a national banking association /s/ L. R. Grames By: /s/ Benjamin F. Williams - ------------------------------- --------------------------------------- Witness Name: Benjamin F. Williams ----------------------------------- Title: Senior Vice President ---------------------------------- Attest: /s/ Christopher C. Finley ----------------------------------- Name: Christopher C. Finley ----------------------------------- Title: Vice President ---------------------------------- [CORPORATE SEAL] GEORGIA PROPERTIES 9 11 Signed, sealed and delivered MORGAN GUARANTY TRUST in the presence of: COMPANY OF NEW YORK, a New York banking corporation /s/ M. L. Rappaport By: /s/ Richard Dugoff - --------------------------------- -------------------------------------- Witness Name: Richard Dugoff ----------------------------------- Title: Vice President ---------------------------------- Attest: /s/ Irma Caracciolo ---------------------------------- Name: Irma Caracciolo ----------------------------------- Title: V.P. and Assistant Vice President ---------------------------------- [CORPORATE SEAL] GEORGIA PROPERTIES 10 12 Signed, sealed and delivered AMSOUTH BANK, a state banking in the presence of: corporation /s/ Katharine A. Breitmoser By: /s/ Brian Coffee - ---------------------------------- ------------------------------------- Witness Name: Brian Coffee ---------------------------------- Title: Vice President --------------------------------- Attest: --------------------------------- Name: ---------------------------------- Title: --------------------------------- [CORPORATE SEAL] GEORGIA PROPERTIES 11 13 Signed, sealed and delivered GUARANTY FEDERAL BANK F.S.B., a in the presence of: federal savings bank /s/ Roger C. Davis By: /s/ Lesa B. Balsley - ------------------------------- -------------------------------------- Witness Name: Lesa B. Balsley ----------------------------------- Title: Vice President / Division Manager ---------------------------------- Attest: /s/ Scott Almy ---------------------------------- Name: Scott Almy ----------------------------------- Title: Assistant Secretary ---------------------------------- [CORPORATE SEAL] GEORGIA PROPERTIES 12 14 EXHIBIT A DESCRIPTION OF PROPERTY [Contained herein is the metes and bounds legal descriptions of the property.] GEORGIA PROPERTIES EX-10.(K)(4)(A)(I) 11 AMENDED & RESTATED DEED OF TRUST 1 EXHIBIT 10(k)(4)(a)(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 AMENDED AND RESTATED DEED OF TRUST AND SECURITY AGREEMENT FROM KOGER EQUITY, INC. TO TRESTE, INC., AS TRUSTEE Dated as of December 29 , 1997 State: North Carolina Section: Township: Range: County: Guilford Tax I.D.: 2 2 AMENDED AND RESTATED DEED OF TRUST AND SECURITY AGREEMENT THIS AMENDED AND RESTATED DEED OF TRUST AND SECURITY AGREEMENT (this "Indenture"), dated as of December 29, 1997, 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 of North Carolina, a national banking association, 301 South College Street, Charlotte, North Carolina 28288, as trustee for the benefit of FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association ("FUNB"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth"), and GUARANTY FEDERAL BANK F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth, and GFB collectively being referred to as the "Beneficiary"). For purposes of notices permitted or required to be given hereunder, FUNB's mailing address is 301 South College Street, Charlotte, North Carolina 28288 Attention: First Union Capital Markets Group, and MGT's mailing address is 60 Wall Street, New York, New York 10260 Attention: Mr. Rick Dugoff, Vice President, JP Morgan, AmSouth's mailing address is 51 West Bay Street, Jacksonville, FL 32247-0788 Attention: Mr. Brian Coffee, Vice President, and GFB's mailing address is 8333 Douglas Avenue, Dallas, TX 75225 Attention: Real Estate Officer. This Amended and Restated Deed of Trust and Security Agreement amends and restates that certain Deed of Trust and Security Agreement dated April 7, 1997 from Borrower to Trustee and recorded in Official Records Book 4524, Page 2074, of the Public Records of Guilford County, North Carolina. 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 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 Beneficiary, (2) be payable in full not later than April 7, 1999, or such later date as may be established by an extension of the Maturity Date (as defined in the Loan Agreement) pursuant to 1 3 Section 2.3 of the Loan Agreement, 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 XXIV, Paragraph 24 hereof, shall in no event exceed $100,000,000.00 (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, mortgages, 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 2 4 (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. "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 f/k/a First Union National Bank of Florida, a national banking association. 3 5 "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 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. "Loan Agreement" shall mean that certain Amended and Restated Revolving Credit Loan Agreement dated as of December 29 , 1997 between Borrower and Beneficiary. "MGT" shall mean Morgan Guaranty Trust Company of New York, a New York banking corporation. "Notes" shall mean collective (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 $35,000,000, (ii) the Substitution Revolving Promissory Note dated as of even 4 6 date herewith made by Borrower payable to the order of MGT in the principal amount of $15,000,000, (iii) the Revolving Promissory Note dated as of even date herewith made by Borrower payable to the order of AmSouth in the original principal amount of $25,000,000, and (iv) the Revolving Promissory Note dated as of even date herewith made by Borrower payable to the order of GFB in the original principal amount of $25,000,000. "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 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 5 7 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 XVIII, 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. (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 6 8 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. (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 7 9 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 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 (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; or 8 10 (i) if Borrower sells, conveys or transfers, voluntarily or otherwise, its interest in the Property without the prior written consent of Beneficiary; 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. Remedies in Case of Event of Default. 6.1. 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, Beneficiary 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 judgement 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 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. 6.2. 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 9 11 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. 6.3. 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. 6.4. 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 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. 6.5. 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. 6.6. Discontinuance of Proceedings; Position of Parties Restored. If Beneficiary, or Trustee at Beneficiary's election, shall have proceeded to enforce any right or remedy 10 12 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. 6.7. 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 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 VII 7.1. 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. 7.2. 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 11 13 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. 7.3. 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 VIII 8. 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 IX 9. 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 X 10. Possession, Management and Income. If an Event of Default shall have occurred under this Indenture, Trustee or Beneficiary, without further notice, may enter 12 14 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. 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, 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. 13 15 ARTICLE XII 12. 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 XIII 13. 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 14. 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. 14 16 (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. ARTICLE XV 15. 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 XVI 16. 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 15 17 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 XVII 17. 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 XVIII 18. 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 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 XIX 19. 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. 16 18 ARTICLE XX 20. 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, 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 XXI 21. 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. 17 19 ARTICLE XXII 22. 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 XXIII 23. 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. ARTICLE XXIV 24. 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 Indebtedness presently secured hereby is Fifty Million Dollars ($100,000,000.00) 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 balance so secured at one time shall not exceed Two Hundred Million Dollars ($200,000,000.00). 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 XXV 25. 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 XXVI 26. 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 18 20 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. 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/herself as its _________________ Secretary. Witness my hand and official seal this 29th day of December, 1997. /s/ Dee Price ------------------------------------------ Notary Public Camden County, Georgia My commission expires: Feb. 1, 1999 ------------------- [NOTARIAL SEAL] 19 21 EXHIBIT A The Land [Contained herein is the metes and bounds legal descriptions of the property.] 22 EXHIBIT B Permitted Encumbrances [Documents attached were excerpts as shown in the Title Commitment.] EX-10.(K)(4)(A)(II) 12 THE DEED OF TRUST AND SECURITY AGREEMENT 1 EXHIBIT 10(k)(4)(a)(ii) THIS INSTRUMENT PREPARED BY, 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 AND SECURITY AGREEMENT FROM KOGER EQUITY, INC. TO TRESTE, INC., AS TRUSTEE Dated as of December 29, 1997 State: North Carolina Section: Township: Range: County: Mecklenburg Tax I.D.: 2 DEED OF TRUST AND SECURITY AGREEMENT THIS DEED OF TRUST AND SECURITY AGREEMENT (this "Indenture"), dated as of December 29, 1997, 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 of North Carolina, a national banking association, 301 South College Street, Charlotte, North Carolina 28288, as trustee for the benefit of FIRST UNION NATIONAL BANK F/K/A FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association ("FUNB"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth"), and GUARANTY FEDERAL BANK F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth and GFB together being referred to as "Beneficiary"). For purposes of notices permitted or required to be given hereunder, FUNB's mailing address is One First Union Center, 301 South College Street, Charlotte, North Carolina 28288 Attention: First Union Capital Markets Group, MGT's mailing address is 60 Wall Street, New York, New York 10260 Attention: _____________________, AmSouth's mailing address is 51 West Bay Street, Jacksonville, Florida 32247-0788 Attention: Brian Coffee, and GFB's mailing address is 8333 Douglas Avenue, Dallas, Texas 75225 Attention: Roger Davis. Capitalized terms not otherwise defined herein are defined in Article I. 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 Beneficiary, (2) be payable in full not later than April 6, 1999, or such later date as may be established by an extension of the Maturity Date (as defined in the Loan Agreement) pursuant to Section 2.3 of the Loan Agreement, 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 1 3 than for advances made pursuant to Article XXIV, Paragraph 24 hereof, shall in no event exceed $100,000,000.00 (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, mortgages, 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 2 4 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 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. "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. 3 5 "Event of Default" shall have the meaning assigned to such term in Article V of this Indenture. "FUNB" shall mean First Union National Bank f/k/a First Union National Bank of Florida, a national banking 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 Deed of Trust 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. 4 6 "Loan Agreement" shall mean that certain Amended and Restated Revolving Credit Loan Agreement dated as of December 29 , 1997 between Borrower and Beneficiary. "MGT" shall mean Morgan Guaranty Trust Company of New York, a New York banking corporation. "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 $35,000,000, (ii) the Substitution Revolving Promissory Note dated as of even date herewith made by Borrower payable to the order of MGT in the principal amount of $15,000,000, (iii) the Revolving Promissory Note dated as of even date herewith made by Borrower payable to the order of AmSouth in the original principal amount of $25,000,000, and (iv) the Revolving Promissory Note dated as of even date herewith made by Borrower payable to the order of GFB in the original principal amount of $25,000,000. "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 the result of or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain. 5 7 "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 XVIII, 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 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 7 9 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. 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 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 8 10 (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 (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; or (i) if Borrower sells, conveys or transfers, voluntarily or otherwise, its interest in the Property without the prior written consent of Beneficiary; 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. Remedies in Case of Event of Default. 6.1. 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 9 11 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, Beneficiary 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 judgement 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 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. 6.2. 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, 10 12 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. 6.3. 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. 6.4. 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 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. 6.5. 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. 6.6. 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. 6.7. Borrower to Pay the Indebtedness on Any Default in Payment; Application of Monies by Beneficiary. 11 13 (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 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 VII 7.1. 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. 7.2. 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 12 14 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. 7.3. 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 VIII 8. 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 IX 9. 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 X 10. 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 13 15 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. 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, 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. 14 16 ARTICLE XII 12. 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 XIII 13. 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 14. 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. 15 17 (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. ARTICLE XV 15. 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 16 18 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 XVI 16. 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 XVII 17. 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 XVIII 18. 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 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. 17 19 ARTICLE XIX 19. 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 XX 20. 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, 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 18 20 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 XXI 21. 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 XXII 22. 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 XXIII 23. 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. ARTICLE XXIV 24. 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 19 21 of this Indenture. The total amount of Indebtedness presently secured hereby is One Hundred Million Dollars ($100,000,000.00) 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 balance so secured at one time shall not exceed One Hundred Million Dollars ($100,000,000.00). 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 XXV 25. 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 XXVI 26. 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. 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 : ------------ 20 22 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 29th day of December, 1997. /s/ Dee Price ------------------------------------- Notary Public Camden County, Georgia My commission expires: Feb. 1, 1999 --------------- [NOTARIAL SEAL] 21 23 EXHIBIT A The Land [Contained herein is the metes and bounds legal descriptions of the property.] 24 EXHIBIT B Permitted Encumbrances [Documents attached were excerpts as shown in Title Commitment.] EX-10.(K)(4)(B) 13 THE ASSIGNMENT OF LEASES AND RENTS 1 EXHIBIT 10(k)(4)(b) 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, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AMSOUTH BANK AND GUARANTY FEDERAL BANK F.S.B. DATED AS OF DECEMBER 29, 1997 NORTH CAROLINA PROPERTIES 2 ASSIGNMENT OF LEASES AND RENTS THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made and executed as of this 29 day of December, 1997, from KOGER EQUITY, INC., a Florida corporation ("Assignor"), whose address is 3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention: J.C. Teagle, President, to and in favor of FIRST UNION NATIONAL BANK, a national banking association ("FUNB"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth"), and GUARANTY FEDERAL BANK F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth and GFB collectively being referred to as "Assignee"), 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, FUNB's mailing address is 301 South College Street, Charlotte, North Carolina 28288 Attention: First Union Capital Markets Group, MGT's mailing address is 60 Wall Street, New York, New York 10260 Attention: Mr. Rick Dugoff, Vice President, JP Morgan. AmSouth's mailing address is 51 West Bay Street, Jacksonville, FL 32247-0788 Attention: Mr. Brian Coffee, Vice President, and GFB's mailing address is 8333 Douglas Avenue, Dallas, TX 75225 Attention: Real Estate Officer. R E C I T A L S: A. Assignor is the mortgagor under that certain Amended and Restated Deed of Trust and Security Agreement given by Assignor to Assignee, as beneficiary, 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 those certain Substitution Revolving Promissory Notes and Revolving Promissory Notes of even date herewith (the "Notes"), 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. 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 NORTH CAROLINA PROPERTIES 1 3 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 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 all rents, income, profits and revenues hereby assigned and to continue so to do until otherwise notified by Assignee. NORTH CAROLINA PROPERTIES 2 4 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 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, 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 North Carolina. If requested by a tenant under any of the Leases or upon Assignee's request, Assignor 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 NORTH CAROLINA PROPERTIES 3 5 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 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 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 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 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 a waiver of its rights and remedies under the remaining terms and conditions of the Notes 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. NORTH CAROLINA PROPERTIES 4 6 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. IN WITNESS WHEREOF, Assignor has executed this Assignment under seal the day and year first above written. ASSIGNOR: Attest: KOGER EQUITY, INC., 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] NORTH CAROLINA PROPERTIES 5 7 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 29th day of December, 1997. /s/ Dee Price ------------------------------------- Notary Public My commission expires: Feb. 1, 1999 --------------- [NOTARIAL SEAL] NORTH CAROLINA PROPERTIES 6 8 EXHIBIT A LEGAL DESCRIPTION OF PREMISES [Contained herein is the metes and bounds legal descriptions of the property.] NORTH CAROLINA PROPERTIES 7 EX-10.(K)(4)(C) 14 THE ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS 1 EXHIBIT 10(k)(4)(c) ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS FROM KOGER EQUITY, INC. TO FIRST UNION NATIONAL BANK, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AMSOUTH BANK AND GUARANTY FEDERAL BANK F.S.B. DATED AS OF DECEMBER 29, 1997 NORTH CAROLINA PROPERTIES 2 - ------------------------------------------------------------------------------- ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS - ------------------------------------------------------------------------------- THIS ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS (this "Assignment") is made and executed this 29th day of December, 1997, by KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention: J.C. Teagle, President, to and in favor of FIRST UNION NATIONAL BANK, a national banking association ("FUNB"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth"), and GUARANTY FEDERAL BANK F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth, and GFB collectively being referred to as "Lender"), which 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. For purposes of notices permitted or required to be given hereunder, FUNB's mailing address is 301 South College Street, Charlotte, North Carolina 28288 Attention: First Union Capital Markets Group, MGT's mailing address is 60 Wall Street, New York, New York 10260 Attention: Mr. Rick Dugoff, Vice President, JP Morgan. AmSouth's mailing address is 51 West Bay Street, Jacksonville, FL 32247-0788 Attention: Mr. Brian Coffee, Vice President, and GFB's mailing address is 8333 Douglas Avenue, Dallas, TX 75225 Attention: Real Estate Officer. BACKGROUND. Borrower is indebted to Lender (the "Loan") pursuant to those certain Substitution Revolving Promissory Notes and Revolving Promissory Notes of even date herewith (the "Notes") secured by and subject to, among other documents, that certain Amended and Restated Deed of Trust and Security Agreement (the "Guilford Deed of Trust") encumbering real property and improvements now or hereafter located thereon located in Guilford County, North Carolina, and being more particularly described on attached Exhibit A, and that certain Deed of Trust and Security Agreement (the "Mecklenburg Deed of Trust") encumbering real property and improvements now or hereafter located thereon located in Mecklenburg County, North NORTH CAROLINA PROPERTIES 1 3 Carolina, and being more particularly described on attached Exhibit B (the Guilford Deed of Trust and the Mecklenburg Deed of Trust are hereinafter referred to as the "Deed of Trust") (the real property described on Exhibit A and Exhibit B is collectively, the "Property"), and by a certain 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, 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. 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 C (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 NORTH CAROLINA PROPERTIES 2 4 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. (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 NORTH CAROLINA PROPERTIES 3 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 NORTH CAROLINA PROPERTIES 4 6 in connection with the 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 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 North Carolina. 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. 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., 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] NORTH CAROLINA PROPERTIES 5 7 LENDER: FIRST UNION NATIONAL BANK, a national banking association Attest: By: /s/ Christopher C. Finley By: /s/ Benjamin F. Williams ------------------------------ ------------------------------- Name: Christopher C. Finley Name: Benjamin F. Williams ---------------------------- ------------------------------ Its Vice President Its Senior Vice President ---- ----------- [AFFIX CORPORATE SEAL] NORTH CAROLINA PROPERTIES 6 8 MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation Attest: By: /s/ Irma Caracciolo By: /s/ Richard Dugoff -------------------------- ------------------------------- Name: Irma Caracciolo Name: Richard Dugoff Its ------------------------- ----------------------------- Assistant Secretary Its Vice President - --------- ---- [AFFIX CORPORATE SEAL] AMSOUTH BANK, a state banking corporation By: /s/ Katharine A. Breitmoser By: /s/ Brian Coffee ---------------------------- ------------------------------- Name: Katharine A. Breitmoser Name: Brian Coffee ----------------------- ----------------------------- Witness Its Vice President ---- [AFFIX CORPORATE SEAL] GUARANTY FEDERAL BANK F.S.B., a federal savings bank Attest: By: /s/ Scott Almy By: /s/ Lesa B. Balsley --------------------------- ----------------------------------- Name: Scott Almy Name: Lesa B. Balsley ------------------------ --------------------------------- Its Assistant Secretary Its Vice President / Division Manager ----------- ---- [AFFIX CORPORATE SEAL] Schedule of Exhibits: Exhibit A Description of Guilford Property Exhibit B Description of Mecklenburg Property Exhibit C Description of Contract Documents NORTH CAROLINA PROPERTIES 7 9 EXHIBIT A DESCRIPTION OF GUILFORD PROPERTY [Contained herein is the metes and bounds legal descriptions of the property.] NORTH CAROLINA PROPERTIES 10 EXHIBIT B DESCRIPTION OF MECKLENBURG PROPERTY [Metes and bounds legal descriptions of the Mecklenburg property.] NORTH CAROLINA PROPERTIES 9 11 EXHIBIT C 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 Borrower is a party or under or in compliance with which Borrower is bound to perform. NORTH CAROLINA PROPERTIES 12 (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. NORTH CAROLINA PROPERTIES EX-10.(K)(4)(D) 15 THE ENVIRONMENTAL IMDEMNIFICATION AGREEMENT 1 EXHIBIT 10(k)(4)(d) ENVIRONMENTAL INDEMNIFICATION AGREEMENT FROM KOGER EQUITY, INC. TO FIRST UNION NATIONAL BANK, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AMSOUTH BANK AND GUARANTY FEDERAL BANK F.S.B. DATED AS OF DECEMBER 29, 1997 NORTH CAROLINA PROPERTIES 2 ENVIRONMENTAL INDEMNIFICATION AGREEMENT THIS ENVIRONMENTAL INDEMNIFICATION AGREEMENT (this "Agreement") is made and executed as of this 29th day of December, 1997, from KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention: J.C. Teagle, President, to and in favor of FIRST UNION NATIONAL BANK, a national banking association ("FUNB"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth"), and GUARANTY FEDERAL BANK F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth, and GFB, collectively being referred to as "Lender"), which 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. For purposes of notices permitted or required to be given hereunder, FUNB's mailing address is 301 South College Street, Charlotte, North Carolina 28288 Attention: First Union Capital Markets Group, MGT's mailing address is 60 Wall Street, New York, New York 10260 Attention: Mr. Rick Dugoff, Vice President, JP Morgan. AmSouth's mailing address is 51 West Bay Street, Jacksonville, FL 32247-0788 Attention: Mr. Brian Coffee, Vice President, and GFB's mailing address is 8333 Douglas Avenue, Dallas, TX 75225 Attention: Real Estate Officer. R E C I T A L S : A. Borrower has obtained financing from Lender pursuant to that certain 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 Lender 1 NORTH CAROLINA PROPERTIES 3 (the "Deed of Trust") encumbering real property located in Mecklenburg County and Amended and Restated Deed of Trust, Assignment of Leases and Rents and Security Agreement encumbering real property located in Guilford County, North Carolina, and being more particularly described on attached Exhibit A (the "Property"). C. As a condition precedent to and as a material inducement for Lender's agreement to provide the Loan to Borrower, Lender has required Borrower to execute and deliver this Agreement, it being acknowledged and understood by Borrower that Lender otherwise is not willing to make or provide the Loan. D. Borrower has obtained a Phase I Environmental Site Assessment dated November 26, 1997, prepared by Law Engineering and Environmental Services, Inc. (the "Environmental Assessment"), and has delivered a copy of the same to Lender. Lender intends 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 Lender to make or provide the Loan to Borrower, Borrower hereby covenants and agrees with Lender 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 2 NORTH CAROLINA PROPERTIES 4 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 North Carolina. (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 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 Lender takes 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 Lender. 3 NORTH CAROLINA PROPERTIES 5 (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 Lender 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 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 harmless Lender, which for purposes of this paragraph will be deemed to include the directors, officers, shareholders, employees and agents of Lender, from and against any Claims other than claims arising from Lender's or such other included parties' gross negligence or willful misconduct, including, without limitation, any claims relating to an Existing Condition. In the event that Lender suffers or incurs any Claims, Borrower will pay to Lender the total of all such Claims suffered or incurred by Lender upon demand therefor by Lender. 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 Lender. 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 Lender's reasonable attorneys' and paralegals' fees and costs incurred in connection with monitoring or review of all Remedial Work. 4 NORTH CAROLINA PROPERTIES 6 In the event that Borrower fails to timely commence, or cause to be commenced, or fails to diligently prosecute to completion, such Remedial Work, Lender 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 Lender. 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) neither Lender nor any assignee of its 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 Lender 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 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 Lender 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 Lender 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 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, Lender agrees 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, Lender will be subrogated to any rights 5 NORTH CAROLINA PROPERTIES 7 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 Lender. No consent by Borrower will be required for any assignment or reassignment of the rights of Lender hereunder to one or more purchasers of the Loan, the Loan Documents or Lender's 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 Lender 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 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 Lender 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 Lender 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 Lender or, if Borrower and Lender 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 Lender takes 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. 6 NORTH CAROLINA PROPERTIES 8 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 Lender without regard to any other rights and remedies Lender may have against Borrower under the Loan Agreement and without regard to any limitations on Lender's 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 Lender may bring and prosecute a separate action or actions against Borrower hereunder whether or not Lender has brought an action against Borrower under the Loan Agreement. 10. Default Interest. Any Claims and other payments required to be paid by Borrower to Lender 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 Lender against Borrower as provided herein, or under applicable law, Borrower will pay to Lender, 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 permitted to be contracted for under North Carolina 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. 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 Lender, and their respective successors and assigns. This Agreement 7 NORTH CAROLINA PROPERTIES 9 will be governed and construed in accordance with the laws of the State of North Carolina. 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 North Carolina circuit court in the judicial circuit in which the Property is located. 12. 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. 13. Waiver of Defenses. In any action, suit or proceeding relating to this Agreement, Borrower and Lender waive the right to interpose a defense of laches, failure of consideration or mutuality of remedy. IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement as of the date first above written. BORROWER: Signed, sealed and delivered KOGER EQUITY, INC., a in the presence of: Florida corporation Pamela K. Walker By: /s/ G. Danny Edwards - --------------------------------- ---------------------------------- Witness Name: G. Danny Edwards ------------------------------ Title: Treasurer ----------------------------- Attest: /s/ W. Lawrence Jenkins ------------------------------ Name: W. Lawrence Jenkins ------------------------------ Title: Secretary ----------------------------- [CORPORATE SEAL] 8 NORTH CAROLINA PROPERTIES 10 LENDER: Signed, sealed and delivered FIRST UNION NATIONAL BANK, in the presence of: a national banking association /s/ L. R. Grames By: /s/ Benjamin F. Williams - ----------------------------- ---------------------------------- Witness Name: Benjamin F. Williams ------------------------------- Title: Senior Vice President ------------------------------ Attest: /s/ Christopher C. Finley ------------------------------ Name: Christopher C. Finley ------------------------------- Title: Vice President ------------------------------ [CORPORATE SEAL] 9 NORTH CAROLINA PROPERTIES 11 Signed, sealed and delivered MORGAN GUARANTY TRUST in the presence of: COMPANY OF NEW YORK, a New York banking corporation /s/ M. L. Rappaport By: /s/ Richard Dugoff - ----------------------------- ----------------------------------- Witness Name: Richard Dugoff ------------------------------- Title: Vice President ------------------------------ Attest: /s/ Irma Caracciolo ------------------------------- Name: Irma Caracciolo ------------------------------- Title: V.P. & Assistant Secretary -------------------------------- [CORPORATE SEAL] 10 NORTH CAROLINA PROPERTIES 12 Signed, sealed and delivered AMSOUTH BANK, a state banking in the presence of: corporation /s/ Katharine A. Breitmoser By: /s/ Brian Coffee - ----------------------------------- ----------------------------------- Witness Name: Brian Coffee ------------------------------- Title: Vice President ------------------------------ Attest: ------------------------------ Name: ------------------------------- Title: ------------------------------ [CORPORATE SEAL] 11 NORTH CAROLINA PROPERTIES 13 Signed, sealed and delivered GUARANTY FEDERAL BANK F.S.B., in the presence of: a federal savings bank /s/ Roger C. Davis By: /s/ Lesa B. Balsey - -------------------------------- -------------------------------------- Witness Name: Lesa Balsley ----------------------------------- Title: Vice President/Division Manager ---------------------------------- Attest: /s/ Scott Almy ---------------------------------- Name: Scott Almy ---------------------------------- Title: --------------------------------- [CORPORATE SEAL] 12 NORTH CAROLINA PROPERTIES 14 EXHIBIT A DESCRIPTION OF PROPERTY [Contained herein is the metes and bounds legal descriptions of the property.] NORTH CAROLINA PROPERTIES EX-10.(K)(5)(A) 16 THE MORTGAGE, ASSIGNMENT OF LEASES AND RENTS 1 EXHIBIT 10(k)(5)(a) 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 - ------------------------------------------------------------------------------- MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT FROM KOGER EQUITY, INC. TO FIRST UNION NATIONAL BANK, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AMSOUTH BANK AND GUARANTY FEDERAL BANK, F.S.B. 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 29th, 1997, 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 banking association ("FUNB"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth:), and GUARANTY FEDERAL BANK F.S.B., a federal savings bank ("GFB"), (FUNB, MGT, AmSouth and GFB collectively being referred to as "Mortgagee"), and all successors and assigns of Mortgagee. For purposes of notices permitted or required to be given hereunder, FUNB's mailing address is One First Union Center, 301 S. College Street, Attention: Real Estate Capital Markets Group, Charlotte, North Carolina 28202; MGT's mailing address is 60 Wall Street, New York, New York 10260 Attention: Mr. Rick Dugoff, Vice President, JP Morgan; AmSouth's mailing address is 51 West Bay Street, Jacksonville, FL 32247-0788 Attention: Mr. Brian Coffee, Vice President; and GFB's mailing address is 8333 Douglas Avenue, Dallas, TX 75225 Attention: Real Estate Officer. 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, (2) be payable in full not later than April 6, 1999, or such later date as may be established by an extension of the Maturity Date (as defined in the Loan Agreement) pursuant to Section 2.3 of the Loan Agreement, 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 $100,000,000.00 (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; 1 3 (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 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. 2 4 MORTGAGOR, FOR ITSELF AND FOR ITS SUCCESSORS AND ASSIGNS, HEREBY WARRANTS, REPRESENTS, COVENANTS AND AGREES 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. "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 f/k/a First Union National Bank of Florida, a national banking 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. 3 5 "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. "Loan Agreement" shall mean that certain Amended and Restated Revolving Credit Loan Agreement dated as of even date herewith between Mortgagor and Mortgagee. "MGT" shall mean Morgan Guaranty Trust Company of New York, a New York banking corporation. "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 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 $35,000,000, the Substitution Revolving Promissory Note dated as of even date herewith made by Mortgagor payable to the order of MGT in the original principal amount of $15,000,000, the Revolving Promissory Note dated as of even date herewith made by Mortgagor payable to the order of AmSouth in the original principal amount of $25,000,000.00 and the Revolving Promissory Note dated as of even date herewith made by Mortgagor payable to the order of GFB in the original principal amount of $25,000,000.00. "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. 4 6 "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 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 5 7 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 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 6 8 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. 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; (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 7 9 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. 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 8 10 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 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; 9 11 (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 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, 10 12 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. 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 Note, 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. 11 13 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 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. 12 14 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; (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 13 15 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 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. 14 16 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 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 15 17 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 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: 16 18 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 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 17 19 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. 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. 18 20 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. 19 21 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/ Alan C. Sheppard, Jr. By: /s/ G. Danny Edwards (SEAL) - ------------------------------------ ----------------------- Alan C. Sheppard, Jr. Its: Treasurer ---------------------- /s/ Janice R. Long - ------------------------------------ Janice R. Long 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/ Alan C. Sheppard, Jr. --------------------------------- WITNESS SWORN TO BEFORE ME THIS 29th day of December, 1997. /s/ Dee Price (L.S.) - ---------------------------------------- Notary Public for State of Georgia ----------------------- My commission expires: Feb. 1, 1999 ------------------ 20 22 EXHIBIT A The Land [Contained herein is the metes and bounds legal descriptions of the property.] 23 EXHIBIT B Permitted Encumbrances [Documents attached are excerpts from the Title Commitment.] 24 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 PRINCIPAL PLACE 301 South College Street OF BUSINESS: Charlotte, North Carolina 28288 AND NAME: Morgan Guaranty Trust Company of New York PRINCIPAL PLACE 60 Wall Street OF BUSINESS: New York, New York 10260 AND NAME: AmSouth Bank PRINCIPAL PLACE 51 West Bay Street OF BUSINESS: Jacksonville, Florida 32247-0788 AND NAME: Guaranty Federal Bank, FSB PRINCIPAL PLACE 8333 Douglas Avenue OF BUSINESS: Dallas, Texas 75225 EX-10.(K)(5)(C) 17 THE ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS 1 EXHIBIT 10(k)(5)(c) ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS FROM KOGER EQUITY, INC. TO FIRST UNION NATIONAL BANK, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AMSOUTH BANK AND GUARANTY FEDERAL BANK F.S.B. DATED AS OF DECEMBER 29, 1997 SOUTH CAROLINA PROPERTIES 2 - ------------------------------------------------------------------------------ ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS - ----------------------------------------------------------------------------- THIS ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS (this "Assignment") is made and executed this 29th day of December, 1997, by KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention: J.C. Teagle, President, to and in favor of FIRST UNION NATIONAL BANK, a national banking association ("FUNB"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth"), and GUARANTY FEDERAL BANK F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth and GFB collectively being referred to as "Lender"), which 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. For purposes of notices permitted or required to be given hereunder, FUNB's mailing address is 301 South College Street, Charlotte, North Carolina 28288 Attention: First Union Estate Capital Markets Group, MGT's mailing address is 60 Wall Street, New York, New York 10260 Attention: Mr. Rick Dugoff, Vice President, JP Morgan. AmSouth's mailing address is 51 West Bay Street, Jacksonville, FL 32247-0788 Attention: Mr. Brian Coffee, Vice President, and GFB's mailing address is 8333 Douglas Avenue, Dallas, TX 75225 Attention: Real Estate Officer. BACKGROUND. Borrower is indebted to Lender (the "Loan") pursuant to those certain Substitution Revolving Promissory Notes and Revolving Promissory Notes of even date herewith (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 Greenville County, South Carolina, and being more particularly described on attached Exhibit A, (the "Property"), and by a certain Amended and Restated Revolving Credit Loan Agreement both of even date herewith (the "Loan 1 SOUTH CAROLINA PROPERTIES 3 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, 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. 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 SOUTH CAROLINA PROPERTIES 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 3 SOUTH CAROLINA PROPERTIES 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 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 4 SOUTH CAROLINA PROPERTIES 6 in connection with the 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 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 South Carolina. 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. 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., a in the presence of: Florida corporation /s/ Janice R. Long By: /s/ G. Danny Edwards - ------------------------------- ---------------------------------- Witness Name: G. Danny Edwards ----------------------------- Title: Treasurer ----------------------------- Attest: /s/ W. Lawrence Jenkins ------------------------------ Name: W. Lawrence Jenkins ------------------------------ Title: Secretary ----------------------------- [CORPORATE SEAL] 5 SOUTH CAROLINA PROPERTIES 7 LENDER: Signed, sealed and delivered FIRST UNION NATIONAL BANK, in the presence of: a national banking association /s/ L. R. Grames By: /s/ Benjamin F. Williams - --------------------------------- --------------------------------- Witness Name: Benjamin F. Williams ------------------------------ Title: Vice President Attest:/s/ Christopher C. Finley ----------------------------- Name: Christopher C. Finley ------------------------------ Title: Vice President ----------------------------- [CORPORATE SEAL] 6 SOUTH CAROLINA PROPERTIES 8 Signed, sealed and delivered MORGAN GUARANTY TRUST in the presence of: COMPANY OF NEW YORK, a New York banking corporation /s/ M. L. Rappaport By: /s/ Richard Dugoff - ------------------------------ --------------------------------------- Witness Name: Richard Dugoff ------------------------------------ Title: Vice President ----------------------------------- Attest: /s/ Irma Caracciolo ----------------------------------- Name: Irma Caracciolo ------------------------------------ Title: V.P. and Assistant Secretary ----------------------------------- [CORPORATE SEAL] 7 SOUTH CAROLINA PROPERTIES 9 Signed, sealed and delivered AMSOUTH BANK, a state banking in the presence of: corporation /s/ Katharine A. Breitmoser By: /s/ Brian Coffee - ---------------------------------- ------------------------------ Witness Name: Brian Coffee --------------------------- Title: Vice President -------------------------- Attest: -------------------------- Name: --------------------------- Title: -------------------------- [CORPORATE SEAL] 8 SOUTH CAROLINA PROPERTIES 10 Signed, sealed and delivered GUARANTY FEDERAL BANK F.S.B., in the presence of: a federal savings bank /s/ Roger C. Davis By: /s/ Lesa B. Balsley - ----------------------------- ---------------------------------- Witness Name: Lesa B. Balsley ------------------------------ Title: Assistant Secretary ----------------------------- Attest: /s/ Scott Almy ----------------------------- Name: Scott Almy ------------------------------ Title: Assistant Secretary ------------------------------ [CORPORATE SEAL] Schedule of Exhibits: Exhibit A Description of Property Exhibit B Description of Contract Documents 9 SOUTH CAROLINA PROPERTIES 11 EXHIBIT A DESCRIPTION OF PROPERTY [Contained herein is the metes and bounds legal descriptions of the property.] SOUTH CAROLINA PROPERTIES 12 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 Borrower is a party or under or in compliance with which Borrower is bound to perform. SOUTH CAROLINA PROPERTIES 13 (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. SOUTH CAROLINA PROPERTIES EX-10.(K)(5)(D) 18 THE ENVIRONMENTAL INDEMNIFICATION AGREEMENT 1 EXHIBIT 10(k)(5)(d) ENVIRONMENTAL INDEMNIFICATION AGREEMENT FROM KOGER EQUITY, INC. TO FIRST UNION NATIONAL BANK, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AMSOUTH BANK AND GUARANTY FEDERAL BANK F.S.B. DATED AS OF DECEMBER 29, 1997 SOUTH CAROLINA PROPERTIES 2 ENVIRONMENTAL INDEMNIFICATION AGREEMENT THIS ENVIRONMENTAL INDEMNIFICATION AGREEMENT (this "Agreement") is made and executed as of this 29th day of December, 1997, from KOGER EQUITY, INC., a Florida corporation ("Borrower"), whose address is 3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207 Attention: J.C. Teagle, President, to and in favor of FIRST UNION NATIONAL BANK, a national banking association ("FUNB"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"), AMSOUTH BANK, a state banking corporation ("AmSouth"), and GUARANTY FEDERAL BANK F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth, and GFB collectively hereinafter being referred to as "Lenders"), 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. For purposes of notices permitted or required to be given hereunder, FUNB's mailing address is c/o First Union Real Estate Capital Markets, One First Union Center, 301 South College Street, Charlotte, North Carolina 28288, MGT's mailing address is 60 Wall Street, New York, New York 20260 Attention: Mr. Rick Dugoff, Vice President, JP Morgan. AmSouth's mailing address is 51 West Bay Street, Jacksonville, FL 32247-0788 Attention: Mr. Brian Coffee, Vice President, and GFB's mailing address is 8333 Douglas Avenue, Dallas, TX 75225 Attention: Real Estate Officer. R E C I T A L S : A. Borrower has obtained financing from Lenders pursuant to that certain 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 Greenville County, South Carolina, and being more particularly described on attached Exhibit A (the "Property"). SOUTH CAROLINA PROPERTIES 1 3 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 2, 1997, prepared by Law Engineering and Environmental Services, Inc. (the "Environmental 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) SOUTH CAROLINA PROPERTIES 2 4 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 South Carolina. (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 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 SOUTH CAROLINA PROPERTIES 3 5 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 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 SOUTH CAROLINA PROPERTIES 4 6 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 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. SOUTH CAROLINA PROPERTIES 5 7 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 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 SOUTH CAROLINA PROPERTIES 6 8 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 permitted to be contracted for under South Carolina 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 South Carolina. 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 South Carolina circuit court in the judicial circuit in which the Property is located. 12. 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. 13. 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. IN WITNESS WHEREOF, Borrower and Lenders have executed this Agreement as of the date first above written. SOUTH CAROLINA PROPERTIES 7 9 BORROWER: Signed, sealed and delivered KOGER EQUITY, INC., a in the presence of: Florida corporation /s/ Pamela K. Walker By: /s/ G. Danny Edwards - ---------------------------- -------------------------------- Witness Name: G. Danny Edwards ----------------------------- Title: Treasurer ---------------------------- Attest: /s/ W. Lawrence Jenkins ---------------------------- Name: W. Lawrence Jenkins ----------------------------- Title: Secretary ---------------------------- [CORPORATE SEAL] SOUTH CAROLINA PROPERTIES 8 10 LENDERS: Signed, sealed and delivered FIRST UNION NATIONAL BANK, in the presence of: a national banking association /s/ L. R. Grames By: /s/ Benjamin F. Williams - ---------------------------- -------------------------------- Witness Name: Benjamin F. Williams ----------------------------- Title: Senior Vice President ---------------------------- Attest: /s/ Christopher C. Finley ---------------------------- Name: Christopher C. Finley ----------------------------- Title: Vice President ---------------------------- [CORPORATE SEAL] SOUTH CAROLINA PROPERTIES 9 11 Signed, sealed and delivered MORGAN GUARANTY TRUST in the presence of: COMPANY OF NEW YORK, a New York banking corporation /s/ M. L. Rappaport By: /s/ Richard Dugoff - ---------------------------- ---------------------------------- Witness Name: Richard Dugoff ------------------------------- Title: Vice President ------------------------------ Attest: /s/ Irma Caracciolo ------------------------------ Name: Irma Caracciolo ------------------------------- Title: V.P. and Assistant Secretary ------------------------------ [CORPORATE SEAL] SOUTH CAROLINA PROPERTIES 10 12 Signed, sealed and delivered AMSOUTH BANK, a state banking in the presence of: corporation /s/ Katharine A. Breitmoser By: /s/ Brian Coffee - ---------------------------- -------------------------------- Witness Name: Brian Coffee ----------------------------- Title: Vice President ---------------------------- Attest: ---------------------------- Name: ----------------------------- Title: ---------------------------- [CORPORATE SEAL] SOUTH CAROLINA PROPERTIES 11 13 Signed, sealed and delivered GUARANTY FEDERAL BANK F.S.B., a in the presence of: federal savings bank /s/ Roger C. Davis By: /s/ Lesa B. Balsley - ---------------------------- ------------------------------------ Witness Name: Lesa B. Balsley --------------------------------- Title: Vice President/Division Manager -------------------------------- Attest: /s/ Scott Almy -------------------------------- Name: Scott Almy --------------------------------- Title: Assistant Secretary -------------------------------- [CORPORATE SEAL] SOUTH CAROLINA PROPERTIES 12 14 EXHIBIT A DESCRIPTION OF PROPERTY [Contained herein is the metes and bounds legal descriptions of the property.] SOUTH CAROLINA PROPERTIES EX-99 19 PRESS RELEASE DATED JANUARY 12, 1998 1 EXHIBIT 99 KOGER EQUITY, INC. ANNOUNCES NEW OFFICE BUILDING IN ORLANDO AND AN EXPANDED REVOLVING CREDIT FACILITY JACKSONVILLE, FLORIDA - JANUARY 12, 1998 - Jacksonville-based Koger Equity, Inc. (ASE:KE) has started construction on a third building in the Koger Center located near the University of Central Florida in Orlando. The three-story structure, known as the Glenridge Building, will contain 75,800 feet, and is scheduled for completion on September 1, 1998. This building will increase the office park to 270,000 feet, with land available for two additional buildings. Koger Equity owns and manages another office park in Orlando containing 713,000 feet. In other news, Koger Equity announced that its secured Revolving Credit Facility has been expanded from $50 million to $100 million. This credit facility is provided by First Union National Bank, Morgan Guaranty Trust Company of New York, AmSouth Bank, N.A. and Guaranty Federal Bank. Victor A. Hughes, Jr., Chairman and CEO of Koger, noted that with no outstanding balance currently owed under this facility, the entire $100 million is available to fund the Company's development and acquisition program. Koger Equity, Inc., a real estate investment trust, currently owns, operates and manages 228 office buildings containing approximately 10.4 million feet in 13 cities in the Southeast and Southwest and manages an additional 22 office buildings for third parties. Including the Glenridge, Koger Equity has nine buildings under construction. # # # 8 -----END PRIVACY-ENHANCED MESSAGE-----