<PAGE>
EXHIBIT 10.1
SALES CONTRACT
November 23, 2005
The undersigned Buyer agrees to buy, and the Seller agrees to sell
the
commercial property located at 7471 Highway 85, Atlanta, Georgia
which includes
a building comprising approximately 9,500 square feet situated on
approximately
.70 acres of land recorded as:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 183
of
the 13th District of Clayton County, Georgia, containing 1.162
acres
as shown by plat of survey by All South Engineering &
Surveying,
Inc., dated December 27, 1985, and more particularly described
according to said plat, as follows:
BEGINNING at a point on the Western line of the 170 ft. right of
way
of Georgia State Highway No. 85, 210.7 feet Northerly as
measured
along said right of way from its intersection with the
Northeastern
line of the 100 ft. right of way of Georgia State Highway No.
138
(said point also being the Northeast corner of property conveyed
to
Burger King Limited Partnership II by Warranty Deed recorded at
Deed
Book 1098, Page 250, Clayton County Records) and running thence
North 89 degrees 14 minutes 3 seconds West 179.40 feet along
the
Northerly line of property now or formerly owned by Burger King
Limited Partnership II to a point on the Eastern right of way
of
McElroy Drive; thence along said right of way North 0 degrees
40
minutes 20 seconds East 269.43 feet to a point; thence South 89
degrees 15
minutes 25 seconds East 196.20 feet to a point on the
Westerly right of way of State Highway 85; running thence South
4
degrees 14 minutes 25 seconds West along the Westerly right of
way
of State Highway 85 270.00 feet to the POINT OF BEGINNING.
The Buyer is acquiring all improvements on the property including
all structures
and improvements which include all lighting fixtures attached
thereto, and all
heating, water heating, and plumbing equipment therein.
The purchase price of said property shall be Eight Hundred Seventy
Five Thousand
Dollars and No/100 ($875,000.00) to be paid as follows:
Two
Hundred Fifty Thousand Dollars and No/100 ($250,000.00) at
closing.
Sellers
will finance remaining Six Hundred Twenty Five Thousand Dollars
and No/100
($625,000.00). Interest only payment [prime plus two percent
(2%)
adjusted annually on the anniversary date of the closing]
payable
monthly
for twenty-four (24) months. Any outstanding principal and
unpaid
interest
is due and payable in full on the 24th month after closing.
<PAGE>
Buyer has paid to the undersigned Fred J. Stokes, Agent, receipt
whereof is
hereby acknowledged by Agent, One Thousand Dollars and No/100
($1,000.00) as
earnest money, to be applied as part payment of the purchase price
of said
property in the consummation of this sale; and if sale, due to
Buyer's default,
is not consummated, that sum will be paid to Sellers as liquidated
damages. In
the event the sale is not consummated for reasons other than the
default of the
Buyer, said earnest money is to be refunded to Buyer.
Seller agrees to furnish good and marketable title to said property
and Buyer
shall have a reasonable time in which to examine the same. If Buyer
finds any
legal defects to title, Seller shall be furnished with a written
statement
thereof and given a reasonable time in which to correct the same.
It is agreed
that such papers that my be legally necessary to carry out the
terms of this
contract shall be executed and delivered by the parties at interest
as soon as
the validity of the title to said property has been
established.
Said property is sold subject to: (1) All valid restrictions of
record; (2)
Zoning ordinances affecting the same; (3) Existing leases.
This contract constitutes the sole and entire agreement between
parties and no
modification hereof shall be binding unless attached hereto and
signed by each;
and no representations, promises or inducements shall be binding
upon either
party or Agent except as herein stated.
The following special stipulations shall, if conflicting with the
printed
matter, control:
SPECIAL STIPULATIONS
1)
Buyer
shall pay an origination fee of two percent (2%) of note and
all closing costs connected with the transfer of this property;
2)
Seller
shall supply a wood infestation report as required by the
Georgia Real Estate Commission in a form required by the
mortgage
company;
3) There are no real
estate agents connected with this closing;
4)
The sale
is to close on the earlier of December 31, 2005 or thirty
(30) days after environmental phase one study is complete. The
results of the phase one study must be satisfactory to the
Buyer;
and
5)
H.M.
Bradford, Jr. is a licensed real estate broker in Georgia.
There is not a commission on the sale.
6)
The real
estate property taxes shall be prorated as of the date of
the closing.
This instrument shall be regarded as an offer of the Buyer or
Seller who first
signs to the other, and is
-2-
<PAGE>
open for acceptance by the other until 6:00 o'clock p.m. on the 2nd
day of
December, 2005; by which time written acceptance of such offer must
have been
actually received by Agent, who shall promptly notify other party
of such
acceptance.
/s/ Robert W. Schleizer
------------------------------------------------
XPONENTIAL REAL ESTATE HOLDINGS, INC. or assigns
The above proposition is hereby accepted, this 1st day of December,
2005.
/s/ H.M. Bradford, Jr.
-----------------------------
BRADFORD, BRADFORD & WILLIAMS
-3-
<PAGE>
RETURN TO:
FRED J. STOKES
11 LUMPKIN STREET
SUITE 100
LAWRENCEVILLE, GA 30045
STATE OF GEORGIA
)
)
COUNTY OF CLAYTON
)
WARRANTY DEED
THIS
INDENTURE, made this 30th day of December in the Year of Our Lord
Two
Thousand Five between BRADFORD, WILLIAMS & WILLIAMS (A GEORGIA
GENERAL
PARTNERSHIP), 800 ROCK QUARRY ROAD, STOCKBRIDGE, the State of
Georgia as party
of the first part, and XPONENTIAL REAL ESTATE HOLDING, INC. (A
NEVADA
CORPORATION), 6400 Atlantic Boulevard, Suite 190, Norcross, the
State of Georgia
as party of the second part.
WITNESSETH: That the said party of the first part, for and in
consideration of the sum of Ten ($10.00) Dollars and other good and
valuable
consideration, in hand paid, at and before the sealing and delivery
of these
presents, the receipt of which is hereby acknowledged, has granted,
bargained,
sold and conveyed, and by these presents does grant, bargain, sell
and convey
<PAGE>
unto the said party of the second part, their heirs and
assigns,
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 183
of
the 13th District of Clayton County, Georgia, containing 1.162
acres
as shown by plat of survey by All South Engineering &
Surveying,
Inc., dated December 27, 1985, and more particularly described
according to said plat, as follows:
BEGINNING at a point on the Western line of the 170 ft. right of
way
of Georgia State Highway No. 85, 210.7 feet Northerly as
measured
along said right of way from its intersection with the
Northeastern
line of the 100 ft. right of way of Georgia State Highway No.
138
(said point also being the Northeast corner of property conveyed
to
Burger King Limited Partnership II by Warranty Deed recorded at
Deed
Book 1098, Page 250, Clayton County Records) and running thence
North 89 degrees 14 minutes 3 seconds West 179.40 feet along
the
Northerly line of property now or formerly owned by Burger King
Limited Partnership II to a point on the Eastern right of way
of
McElroy Drive; thence along said right of way North 0 degrees
40
minutes 20 seconds East 269.43 feet to a point; thence South 89
degrees 15 minutes 25 seconds East 196.20 feet to a point on
the
Westerly right of way of State Highway 85; running thence South
4
degrees 14
minutes 25 seconds West along the Westerly right of way
of State Highway 85 270.00 feet to the POINT OF BEGINNING.
LESS AND EXCEPT:
ALL THAT TRACT AND PARCEL OF LAND lying and being in Land Lot 183
of
the 13th District of Clayton County, Georgia, and more
particularly
described as follows:
BEGINNING AT A POINT marked by an iron pin on the West margin of
the
170 foot right of way of Georgia State Highway 85, 210.70 feet
North
as measured along said right of way from its intersection with
the
North margin of the right of way of State Road 138; thence North
3
degrees 49 minutes 57 seconds East along the West margin of
Georgia
State Highway 85 a distance of 110.00 feet to a point marked by
a
nail; thence North 89 degrees 11 minutes 14 seconds West a
distance
of 186.36 feet to a point located on the East margin of the right
of
way of McElroy Drive; thence South 00 degrees 12 minutes 25
seconds
West, along the East margin of McElroy Drive, a distance of
110.00
feet to a point marked by an iron pin; thence South 89 degrees
14
minutes 3
<PAGE>
seconds East a distance of 179.40 feet to an iron pin at the
POINT
OF BEGINNING. All according to that certain survey by Richard
Maskevich, Registered Georgia Land Surveyor No. 1652, for Brad
Bradford, dated September 8, 1986.
TOGETHER WITH easement rights contained in Joint Driveway
Easement
by and between Charles P. Bernstein, H.M. Brad Bradford, Jr.,
Leroy
Williams and Kevin L. Williams, dated October 14, 1986, filed
October 17, 1986, recorded in Deed Book 1330, page 83, Clayton
County records.
TO HAVE
AND TO HOLD the said tract or parcel of land, with all and
singular the rights, members and appurtenances thereof, to the same
being,
belonging, or in anywise appertaining, to the only proper use,
benefit and
behalf of the said party of the second part, their heirs and
assigns, forever,
in Fee Simple.
AND THE
SAID party of the first part, for their heirs, executors,
administrators, and assigns, will warrant and forever defend the
right and title
to the above described property, unto the said party of the second
part, their
heirs, successors, and assigns, against the claims of all persons
whomsoever.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS
WHEREOF, the said party of the first part has hereunto set
their hands and seal, the day and year above written.
Signed, sealed and delivered in the presence of:
BRADFORD, WILLIAMS & WILLIAMS, a
Georgia general partnership
By: BBC VENTURES,
L.P., a Georgia limited
partnership, its authorized general partner
/s/ Johnathan Hunt
--------------------------------------------
By: H.M. Bradford, Jr.
----------------------------
Witness
Name: H.M.
Bradford, Jr.
Title: Managing
General Partner
SWORN TO AND SUBSCRIBED before me
this 30th day of December, 2005.
/s/ Gwendolyn Dove
-------------------------------
NOTARY PUBLIC, State of Georgia
<PAGE>
WHEN RECORDED RETURN TO:
Jonathan J. Hunt, Esq.
McKenna Long & Aldridge LLP
303 Peachtree Street, Suite 5300
Atlanta, Georgia 30308
STATE OF GEORGIA
)
)
COUNTY OF CLAYTON
)
PURCHASE
MONEY DEED TO SECURE DEBT, ASSIGNMENT AND SECURITY AGREEMENT
THIS
INSTRUMENT, made and entered into as of the 30th day of
December,
2005, by and between XPONENTIAL REAL ESTATE HOLDINGS, INC., a
Nevada corporation
("Borrower") and BRADFORD, WILLIAMS AND WILLIAMS, a Georgia general
partnership
("Lender");
W I T N E S S E T H:
1.01 THAT
FOR AND IN CONSIDERATION of the sum of $10.00 and other
valuable
considerations, the receipt and sufficiency whereof are hereby
acknowledged, and
in order to secure the indebtedness and other obligations of
Borrower
hereinafter set forth, Borrower does hereby grant, bargain, sell,
convey,
assign, transfer, pledge, and set over unto Lender the following
described
property (collectively, the "Premises"): (a) all those certain
tracts, pieces or
parcels of land (and any easements or other rights or interests in
land) more
particularly described in Exhibit "A" hereto (the "Land"); (b) all
buildings,
structures and improvements of every nature whatsoever now or
hereafter situated
on, under or above the Land (the "Improvements"); (c) all
easements,
rights-of-way, strips and gores of land, vaults, streets, ways,
alleys,
passages, sewer rights, waters, water courses, water rights,
minerals, flowers,
shrubs, crops, trees, timber and other emblements now or hereafter
located on
the Land or under or above the same or any part or parcel thereof,
and all
estates, rights, titles, interests, tenements, hereditaments and
appurtenances,
reversions and remainders whatsoever, in any way belonging,
relating or
appertaining to the Land or any part thereof, or which hereafter
shall in any
way belong, relate or be appurtenant thereto, whether now owned or
hereafter
acquired by Borrower (together with the Land and the Improvements,
referred to
as the "Property"; the Property, together with the property
referred to in
Subsection 1.01(f)(ii) hereinbelow, being hereinafter referred to
as the
"Project"); (d) all right, title and interest of Borrower in any
and all leases,
rental agreements and arrangements of any sort for or resulting in
the giving of
value to Borrower for the use of the Project or any portion
thereof, now or
hereafter affecting the Project or any portion thereof, whether the
user enjoys
the Project or any portion thereof as tenant for years, invitee,
licensee,
tenant at sufferance or otherwise, and irrespective of whether such
leases,
rental agreements and arrangements be oral or written, including
those certain
leases, if any, more particularly described in Exhibit "B" hereto,
and including
any and all extensions, renewals and modifications thereof (the
"Leases") and
guaranties of the performance of obligations of any tenants or
lessees
thereunder (the "Tenants"), together with all income, rents,
issues, profits and
revenues from the Leases (including all tenant security deposits
and all other
tenant deposits, whether held by Borrower or otherwise, and all
other deposits
and escrow funds relating to any Leases) and all insurance proceeds
paid in lieu
thereof, and all the estate, right, title, interest, property,
possession, claim
and demand whatsoever at law, as well as in equity, of Borrower of,
in and to
the same; provided, however, that although this Instrument contains
(and it is
hereby agreed that this Instrument contains) a present, current,
unconditional
and absolute assignment of all of said income, rents, issues,
profits and
revenues, Borrower and Lender have agreed that so long as there
shall exist no
"Default" (as hereinafter defined) Borrower shall have a
revocable
<PAGE>
license to collect all income, rents, issues, profits and revenues
(including
deposits), and it being further agreed that upon the occurrence of
a "Default"
(as hereinafter defined) hereunder such license shall be
automatically revoked
without the necessity of further action by Lender and Lender shall
be entitled
to receive all such income, rents, issues, profits and revenues and
Lender may
apply any or all such income, rents, issues, profits and revenues
received by
Lender as provided in Section 3.02(f) hereof; (e) all items
referred to below in
Subsections 1.01(f)(ii) through 1.01(f)(x) which are other than
personal
property subject to the provisions of Article 9 of the Uniform
Commercial Code
as in effect in the applicable jurisdiction (the "UCC"); and (f)
all assets of
Borrower related to the ownership or operation of the Property,
including
accounts referred to above in this Subsection 1.01(f), in each case
as such
terms are defined under the UCC from time to time, including all of
the
following:
(i) any and all items referred to in the foregoing Subsections
1.01(a) through 1.01(d) which are described generally in the
foregoing portion
of this Subsection 1.01(f), and
(ii) all right, title and interest of Borrower in all
furnishings,
furniture, fixtures, machinery, apparatus, equipment, fittings,
appliances,
building supplies and materials and goodwill related thereto, and
all other
articles of personal property of every kind and nature whatsoever,
tangible or
intangible, now, heretofore or hereafter arising out of or related
to the
ownership of the Property, or acquired with proceeds of any loan
secured by this
Instrument, or located in, on or about the Property, or used or
intended to be
used with or in connection with the construction, use, operation or
enjoyment of
the Property, and
(iii) all right, title and interest of Borrower in, to and under
all
franchise agreements, management contracts, service contracts,
utility
contracts, leases of equipment, documents and agreements relating
to the
construction of any Improvements (including any and all
construction contracts,
architectural contracts, engineering contracts, designs, plans,
specifications,
drawings, surveys, tests, reports, bonds and governmental
approvals) and all
other contracts, licenses and permits now or hereafter affecting
the Project or
any part thereof and all guaranties and warranties with respect to
any of the
foregoing (the "Contracts"), and
(iv) all right, title and interest of Borrower in any insurance
policies or binders now or hereafter relating to the Project,
and
(v) all right, title and interest of Borrower in any and all
awards,
payments, proceeds and the right to receive the same, either before
or after any
foreclosure hereunder, as a result of any temporary or permanent
injury or
damage to, taking of or decrease in the value of the Project by
reason of
casualty, condemnation or otherwise, and
(vi) all right, title and interest of Borrower in all escrow
relating to the Project or the purchase, construction or operation
thereof, and
(vii) all right, title and interest of Borrower in all cash
funds,
deposit accounts, certificates of deposit, negotiable instruments
and other
rights and evidence of rights to cash, now or hereafter created
under or held by
Lender pursuant to any of the "Loan Documents" (as hereinafter
defined),
including any account into which any portion of the "Indebtedness"
(as
hereinafter defined) may be disbursed by Lender, and
(viii) all documents and agreements in favor of Borrower in
connection with any of the foregoing, and
2
<PAGE>
(ix) all claims and causes of action arising from or otherwise
related to any of the foregoing, and all rights and judgments
related to any
legal actions in connection with such claims or causes of action,
and all cash
(or evidences of cash or of rights to cash) or other property or
rights thereto
relating to such claims or causes of action, and
(x) all extensions, additions, improvements, betterments,
renewals
and replacements, substitutions, or proceeds of any of the
foregoing; and all
inventory, accounts, chattel paper, documents, instruments,
equipment, fixtures,
farm products, consumer goods, general intangibles and other
property of any
nature constituting proceeds acquired with proceeds of any of the
property
described hereinabove; all of which foregoing items are hereby
declared and
shall be deemed to be a portion of the security for the
indebtedness and
obligations herein described, a portion of the above described
collateral being
located upon the Land.
For
purposes of this Instrument, the term "Loan Documents" shall mean
this
Instrument and the "Note" (as hereinafter defined), and any other
documents to
or of which Lender is a party or beneficiary now or hereafter
evidencing,
securing, guarantying, modifying or otherwise relating to said
Indebtedness or
the Premises; and the term "Loan" shall mean the loan contemplated
by the Loan
Documents.
1.02 TO
HAVE AND TO HOLD the Premises and all parts, rights, members
and
appurtenances thereof, to the use, benefit and behoof of Lender, IN
FEE SIMPLE
forever; and Borrower covenants that Borrower is lawfully seized
and possessed
of the Premises as aforesaid and has good right to convey the same,
that the
same are unencumbered except for those matters expressly set forth
in Exhibit
"C" hereto, and Borrower does warrant and will forever defend the
title thereto
against the claims of all persons whomsoever, except as to the
matters set forth
on Exhibit "C".
1.03 THIS
INSTRUMENT is a deed passing the title of the Premises to
Lender
and is made under the laws of the State of Georgia relating to
deeds to secure
debt, and is not a mortgage, and is given to secure the payment of
the following
described indebtedness (collectively, the "Indebtedness"): (a) the
debt
evidenced by that certain promissory note of even date herewith,
made by
Borrower to the order of Lender in the principal amount of Six
Hundred Thirty
Seven Thousand Five Hundred and NO/100 Dollars ($637,500.00), with
the final
payment being due on or before December 30, 2007, together with any
and all
renewals, modifications, consolidations, replacements and
extensions thereof
(the "Note"); (b) any and all additional advances made or costs or
expenses
incurred by Lender to protect or preserve the Premises or the
security interest
created hereby, or for taxes, assessments or insurance premiums as
hereinafter
provided, or for performance of any of Borrower's obligations
hereunder, or for
any purpose referred to in Section 2.08 hereof, or for any other
purpose
provided herein (whether or not the original Borrower remains the
owner of the
Premises at the time such advances are made or costs or expenses
incurred); and
(c) any and all other indebtedness or obligations now existing or
hereafter
arising under any of the Loan Documents, and all renewals,
modifications,
consolidations, replacements and extensions thereof. The foregoing
Indebtedness
includes all interest on the principal portion thereof and all
charges,
prepayment premiums, reimbursements and other payments of any kind
provided for
in the Loan Documents.
1.04
SHOULD THE INDEBTEDNESS BE PAID according to the tenor and
effect
thereof when the same shall become due and payable, and should
Borrower perform
all covenants herein contained in a timely manner, then this
Instrument shall be
cancelled and surrendered.
3
<PAGE>
COVENANTS AND AGREEMENTS
2.01
Payment of Indebtedness. Borrower shall pay the Note according to
the
tenor thereof and the remainder of the Indebtedness promptly as the
same shall
become due from time to time.
2.02
Taxes, Liens and Other Charges. Borrower shall pay, on or before
the
due date thereof, all (a) taxes, assessments, and other charges of
every
character whatsoever now or hereafter levied on, assessed, placed
or made
against, or creating a lien upon, the Indebtedness, the Premises,
this
Instrument, or any other Loan Document, or any interest of Lender
in the
Indebtedness, the Premises or the Loan Documents; (b) premiums on
policies of
insurance now or hereafter covering the Premises, and any and all
other
insurance policies now or hereafter collaterally pledged to Lender;
(c) ground
rentals or other lease rentals, if any, payable by Borrower; (d)
utility
charges, whether public or private; and (e) penalties and interest
on any of the
foregoing. Borrower will promptly pay any tax arising out of the
passage of any
law, order, rule or regulation, subsequent to the date hereof, in
any manner
changing or modifying the laws now in force governing the taxation
of deeds to
secure debt or security agreements, or debts secured thereby, or
the manner of
collection thereof. Borrower shall promptly deliver to Lender upon
demand
receipts showing timely payment in full of all of the above
items.
2.03
Insurance and Condemnation.
(a) Borrower shall procure for, deliver to and maintain for the
benefit of Lender during the term of this Instrument, original,
fully paid
insurance policies issued by such insurance companies, in such
amounts, form and
substance, insuring such parties (including Borrower and any
contractor
performing work upon the Premises) providing "all risk" permanent
real and
personal property in an amount equal to or greather than the
outstanding
principal balance of the note, public liability (insuring Borrower
and any
contractor performing work on the Premises), worker's compensation,
naming
Lender as mortgagee and additional loss payee with respect to all
property
insurance and as an additional insured with respect to all
liability insurance
except worker's compensation. At least ten (10) days prior to the
expiration
date of each policy maintained pursuant to this section, a renewal
or
replacement thereof satisfactory to Lender shall be delivered to
Lender,
together with receipts evidencing the payment of all premiums
required to keep
such insurance in effect for the full term of such policy. At the
request of
Lender, Borrower shall provide evidence satisfactory to Lender that
all such
insurance is in effect. If the Premises or any part thereof is
damaged by fire
or any other cause, Borrower will give immediate written notice
thereof to
Lender.
(b) Borrower shall notify Lender immediately upon obtaining
knowledge of the institution, or the proposed, contemplated or
threatened
institution, of any action for the taking through condemnation
(which term when
used in this Instrument shall include any damage or taking by any
governmental
or quasi-governmental authority and any transfer by private sale in
lieu
thereof) of the Premises or any part thereof.
(c) Lender shall be entitled to all compensation, awards and
other
payments arising from any casualty, condemnation or damage to the
Premises or
any portion thereof and to give receipts and acquittances therefor,
and is
hereby authorized, at its option, to adjust or compromise any
casualty,
condemnation or damage claim or cause of action, to commence,
appear in and
prosecute, in its own or in Borrower's name, any action or
proceeding relating
to any casualty, condemnation or damage claim or cause of action,
and to settle
or compromise any claim or cause of action in connection therewith.
Each
insurance company, condemning authority or other party is hereby
authorized and
directed to make payment for all such claims and causes of action
to Borrower
and Lender jointly.
4
<PAGE>
2.04
Leases and Contracts. Borrower shall (a) fulfill, perform and
observe
each and every condition and covenant of landlord or lessor
contained in each of
the Leases and each and every condition and covenant of Borrower or
owner of the
Premises contained in the Contracts; (b) give prompt notice to
Lender of any
claim of default or notice of any event or condition which, with
notice or
passage of time or both, would constitute a default under any of
the Leases or
the Contracts, whether given by or given to Borrower, together with
a complete
copy of any notice expressing such claim; (c) at no cost or expense
to Lender,
enforce, short of termination, the performance and observance of
each and every
condition and covenant of each of the parties under the Contracts
and the
Leases; (d) appear in and defend any action against any one or more
of Borrower,
Lender, and the Premises arising out of, or in any manner connected
with, any of
the Leases or the Contracts, or the obligations or liabilities of
any party
thereto or any guarantor thereof; and (e) furnish to Lender upon
demand copies
of all Leases and Contracts. Borrower shall not, without the prior
written
consent of Lender, (i) enter into new Leases or Contracts; (ii)
modify any
Leases or Contracts; (iii) terminate or accept the surrender of any
Leases or
Contracts; (iv) waive or release any other party from the
performance or
observance of any obligation or condition under any Leases or
Contracts; (v)
give any consent to any assignment or sublease by any Tenant under
any of the
Leases; (vi) permit the prepayment of any rents under any of the
Leases for more
than one month prior to the accrual thereof; or (vii) assign its
interest in, to
or under any Contracts or Leases or the rents, issues and profits
from the
Leases or from the Premises to any person or entity other than
Lender, except as
otherwise expressly permitted by Lender in writing. Borrower shall
take no
action which will cause or permit the estate of any Tenant under
any of the
Leases to merge with the interest of Borrower in the Premises or
any portion
thereof. Borrower shall and does hereby authorize and direct each
and every
present and future Tenant of all or any part of the Premises to pay
all rent
(and any other sums due the landlord under the Lease) to Lender and
to perform
all other obligations of that Tenant for the direct benefit of
Lender, as if
Lender were the landlord under the Lease with that Tenant,
immediately upon
receipt of a demand by Lender to make such payment or perform such
obligations,
it being acknowledged that no such demand by Lender shall
constitute or be
deemed to constitute any assumption by Lender of any obligations of
the landlord
under such Lease. No Tenant shall have any responsibility to
ascertain whether
such demand is permitted hereunder or whether a default shall have
occurred.
Borrower hereby waives any right, claim or demand it may now or
hereafter have
against any such Tenant by reason of such payment of rent or other
sums or
performance of obligations to or for Lender; and any such payment
or performance
to or for Lender shall discharge the obligations of the Tenant to
make such
payment or performance to or for Borrower. Borrower shall and does
hereby
authorize and direct each and every present and future party to any
Contract (a
"Contract Party") to make all payments to Lender and to perform all
obligations
of that Contract Party for the direct benefit of Lender, as if
Lender were the
Borrower or owner of the Premises under the Contract with that
Contract Party,
immediately upon receipt of a demand by Lender to make such
payments or perform
such obligations, it being acknowledged that no such demand by
Lender shall
constitute or be deemed to constitute any assumption by Lender of
any
obligations of the Borrower or owner of the Premises under such
Contract. No
Contract Party shall have any responsibility to ascertain whether
such demand is
permitted hereunder or whether a default shall have occurred.
Borrower hereby
waives any right, claim or demand it may now or hereafter have
against any such
Contract Party by reason of such payment or performance of
obligations to or for
Lender; and any such payment or performance to or for Lender shall
discharge the
obligations of the Contract Party to make such payment or
performance to or for
Borrower.
2.05
Operation, Care and Inspection of Premises. Borrower shall
maintain
the Premises in good condition and repair, shall not commit or
suffer any waste
to the Premises or do or suffer to be done anything which would
increase the
risk of casualty to the Premises or any part thereof or which would
result in
the cancellation of any insurance policy carried with respect to
the Premises.
Borrower shall comply promptly with all applicable laws, rules,
ordinances,
regulations, judgments, governmental determinations, restrictive
covenants and
easements affecting the Premises or any part thereof (the
"Requirements") and
shall cause the Premises to comply at all times and in all respects
with all
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Requirements, and shall at all times operate the Premises, and
perform any
construction of any portion thereof, in all respects in accordance
with all
Requirements. Without implying any limitation upon the foregoing,
Borrower shall
obtain all permits and approvals of governmental agencies and
authorities which
are required in connection with the ownership, use, occupancy,
repair,
restoration or construction of the Premises as soon as the same are
required.
Borrower shall promptly repair, restore or replace, to the extent
and in a
manner satisfactory to Lender, any part of the Premises which may
be damaged by
fire or other casualty or which may be affected by any condemnation
proceeding,
provided that Lender thereafter makes available to Borrower
(pursuant to a
procedure satisfactory to Lender) any net insurance or condemnation
proceeds
actually received by Lender in connection with such casualty loss
or
condemnation, to the extent such proceeds are required to defray
the expense of
such restoration, repair or replacement; provided, however, that
the
insufficiency of or delay in receipt by Borrower of any such net
proceeds shall
in no way relieve Borrower of its obligation to promptly restore,
repair or
replace. Lender and any persons authorized by Lender shall have the
right at all
reasonable times to inspect the Premises, any improvements existing
or being
constructed thereon and all materials used or to be used in such
improvements;
provided, however, that nothing contained herein shall be deemed to
impose upon
Lender any obligation to undertake such inspections or any
liability for the
failure to detect or failure to act with respect to any defect
which was or
might have been disclosed by such inspections. Notwithstanding
anything to the
contrary herein, no part of the Premises now or hereafter conveyed
as security
under this Instrument shall be removed, demolished or materially
altered without
the prior written consent of Lender.
2.06
Security Agreement. (a) This Instrument is hereby made and
declared
to be a security agreement encumbering each and every item of
personal property
included herein as a part of the Premises, in compliance with the
provisions of
the UCC as enacted in the jurisdiction applicable thereto. The
remedies for any
violation of the covenants, terms and conditions of the security
agreement
contained in this Instrument shall be as prescribed herein, or as
prescribed by
general law, or as prescribed by the applicable UCC, all at
Lender's election in
the discretion of Lender. Upon request or demand by Lender,
Borrower shall at
its expense assemble all personal property which is a part of the
Premises, and
with respect to which such request or demand is made, and make the
same
available to Lender at a convenient place upon the Land (or within
Improvements
upon the Land, as may be appropriate for the protection of such
personal
property) acceptable to Lender. Any notice of sale, disposition or
other action
by Lender with respect to personal property which is a part of the
Premises sent
to Borrower in accordance with the provisions hereof relating to
communications
at least ten (10) days prior to such action shall constitute
adequate and
reasonable notice to Borrower of such action. Borrower agrees that
all property
used in connection with the production of income from the Premises
or adapted
for use therein or which is described or reflected in this
Instrument, is, and
at all times and for all purposes and in all proceedings, legal or
equitable,
shall be, regarded as part of the real estate conveyed hereby and
that the
filing of any financing statement or statements in the records
normally having
to do with personal property shall not in any way affect such
agreement;
provided, however, that Lender may determine in its discretion that
certain
items of such property constitute personal property and are subject
to remedies
available with respect to personal property. The mention in any
financing
statement or statements of rights in and to (a) the proceeds of any
insurance
policy, or (b) any award in eminent domain proceedings for a taking
or for loss
of value, or (c) any payment for damage to or losses associated
with the
Premises, or (d) Borrower's interest as lessor in any present or
future lease or
rights to income growing out of the use and/or occupancy of the
Premises,
whether pursuant to a Lease or otherwise, shall not in any way
limit any of the
rights of Lender as determined by this Instrument or affect the
priority of
Lender's security interest granted hereby or by any other recorded
document, it
being understood and agreed that such mention in such financing
statement or
statements is solely for the protection of Lender in the event any
court shall
at any time hold with respect thereto, that notice of Lender's
priority of
interest, to be effective against all persons or against a
particular class of
persons, must be filed in the applicable UCC records. Except with
respect to
rental payments to the extent specifically provided herein to the
contrary,
Lender shall have the
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right of possession of all cash, securities, instruments,
negotiable
instruments, documents, certificates and any other evidences of
cash or other
property or evidences of rights to cash or other property which are
now or
hereafter a part of the Premises, and Borrower shall promptly
deliver the same
to Lender without further notice from Lender. Borrower hereby
irrevocably agrees
that Lender may, at the option of Lender, give notice from time to
time to any
one or more persons or entities who may have or owe or be expected
thereafter to
have or owe any payment or other property of any nature which is or
may become a
part of the Premises, of the security interest of Lender therein or
of the
right, if any, of Lender to possession thereof; and, where Lender
has such a
right of possession, Lender may demand of such persons or entities
delivery of
any such payment or other property directly to Lender. If Lender
shall at its
option so request, Borrower will join in any such notices with
Lender. The name
of the "Secured Party" (which is Lender) and the address of the
"Secured Party"
from which information concerning the security interest may be
obtained, are as
set forth in Section 4.06, hereof; and a statement indicating the
types, or
describing the items, of collateral is set forth hereinabove.
(b) Borrower hereby warrants and represents that:
(i) Xponential Real Estate Holdings, Inc. is the correct legal
name of the Borrower (including, without limitation, punctuation
and spacing)
indicated on the public record of the Borrower's jurisdiction of
organization
which shows the Borrower to be organized.
(ii) The Borrower is a corporation organized under the laws of
the State of Nevada.
(iii) The Borrower's mailing address is 6400 Atlantic Blvd,,
Suite 190, Norcross, GA 30071.
(iv) The federal tax identification number of Borrower is
20-2381587.
(v) Exhibit E attached hereto and incorporated herein
correctly sets forth all names and tradenames that Borrower or any
subsidiary or
affiliate thereof has used within the last five years, and also
correctly sets
forth the locations of all of the chief executive offices of
Borrower over the
last five years.
(c) The Borrower hereby covenants and agrees that:
(i) Borrower shall not merge or consolidate into, or transfer
of any of the Premises to, any other person or entity without the
prior written
consent of Lender.
(ii) Borrower shall not change its name unless it has given
Lender thirty (30) days' prior written notice thereof and executed
or
authorized, at the request of Lender, such additional financing
statements to be
filed in such jurisdictions as Lender may deem necessary or
desirable in its
sole discretion.
(iii) Borrower shall, at any time and from time to time,
whether or not the Official Text of Revised Article 9, 2000
Revision, of the
Uniform Commercial Code promulgated by the American Law Institute
and the
National Conference of Commissioners on Uniform State Laws or a
version thereof
("UCC Revised Article 9") is in effect in any particular
jurisdiction, take such
steps as Lender may reasonably request for Lender (A) to obtain
an
acknowledgment, in form and substance reasonably satisfactory to
Lender, of any
bailee having possession of any of the Premises, stating that the
bailee holds
possession of such Premises on behalf of Lender, (B) to obtain
"control" of any
investment property, deposit accounts, letter-of-credit rights, or
electronic
chattel paper (as such terms are defined by
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UCC Revised Article 9 with corresponding provisions thereof
defining what
constitutes "control" for such items of collateral), with any
agreements
establishing control to be in form and substance reasonably
satisfactory to
Lender, and (C) otherwise to insure the continued perfection and
priority of the
Lender's security interest in any of the Premises and of the
preservation of its
rights therein, whether in anticipation of or following the
effectiveness of UCC
Revised Article 9 in any jurisdiction. If Borrower shall at any
time, whether or
not UCC Revised Article 9 is in effect in any particular
jurisdiction, acquire a
"commercial tort claim" (as such term is defined in UCC Revised
Article 9 with
respect to the Premises or any portion thereof) Borrower shall
promptly notify
Lender thereof in writing, providing a reasonable description and
summary
thereof, and shall execute a supplement to this Instrument in form
and substance
acceptable to Lender granting a security interest in such
commercial tort claim
to Lender.
(d) Borrower hereby authorizes Lender, its counsel or its
representative, at any time and from time to time, to file
financing statements,
amendments and continuations that describe or relate to the
Premises or any
portion thereof in such jurisdictions as Lender may deem necessary
or desirable
in order to perfect the security interests granted by Borrower
under this
Instrument or any other Loan Document, and such financing
statements may
contain, among other items as Lender may deem advisable to include
therein, the
federal tax identification number of Borrower, and may describe the
property
covered by such financing statements as "all assets of Borrower,"
"all personal
property of Borrower" or words of similar effect.
2.07
Further Assurances; After-Acquired Property. Borrower shall
execute
and/or deliver (and pay the costs of preparation and recording
thereof) to
Lender, upon demand, any further instrument or instruments deemed
by Lender in
its discreti
