Exhibit 10.4




 Exhibit 10.4

EXECUTION COPY




This document was prepared by,

and after recording,

return to:




Sidley Austin LLP

555 West Fifth Street, 40th Floor

Los Angeles, CA 90013

Attn: Brian C. Flavell, Esq.




DEED TO SECURE DEBT, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES,

RENTS AND SECURITY DEPOSITS




Dated as of February 4, 2011




from




SOUTHWEST GEORGIA ETHANOL, LLC

as Grantor




to




WESTLB AG, NEW YORK BRANCH, as Collateral Agent, as Grantee




THIS INSTRUMENT IS TO BE FILED IN THE REAL ESTATE RECORDS OF MITCHELL COUNTY, GEORGIA.



THIS SECURITY DEED IS MADE UNDER O.C.G.A SECTION 44-14-60 ET. SEQ. AND AMENDATORY ACTS THEREOF AS A
CONVEYANCE TO SECURE DEBT AND SHALL ALSO BE CONSIDERED A SECURITY AGREEMENT UNDER THE UNIFORM
COMMERCIAL CODE AS ADOPTED IN GEORGIA.



THIS INSTRUMENT SECURES THE OBLIGATION OF THE GRANTOR TO REPAY THE PRINCIPAL AMOUNT OF UP TO TEN
MILLION DOLLARS ($10,000,000) AND PERFORM ALL THE OTHER OBLIGATIONS AS SUCH TERM IS DEFINED IN THE
CREDIT AGREEMENT REFERRED TO BELOW (THE “OBLIGATIONS”). THE MATURITY DATE OF THE OBLIGATIONS IS
AUGUST 4, 2011.


 


 









 





TABLE OF CONTENTS 




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Article I DEFINITIONS
	 	 	6	 
	 
	 	 	 	 
	1.1 Definitions
	 	 	6	 
	1.2 Principles of Construction
	 	 	9	 
	 
	 	 	 	 
	Article II GENERAL RIGHTS OF GRANTEE
	 	 	9	 
	 
	 	 	 	 
	2.1 General Rights of Grantee
	 	 	9	 
	 
	 	 	 	 
	Article III ABSOLUTE ASSIGNMENT OF LEASES AND RENTS
	 	 	10	 
	 
	 	 	 	 
	3.1 Absolute Assignment of Leases and Rents
	 	 	10	 
	 
	 	 	 	 
	Article IV SECURITY AGREEMENT
	 	 	12	 
	 
	 	 	 	 
	4.1 Rights to UCC Collateral under the Uniform Commercial Code
	 	 	12	 
	4.2 Financing Statements
	 	 	13	 
	 
	 	 	 	 
	Article V REPRESENTATIONS OF GRANTOR
	 	 	13	 
	 
	 	 	 	 
	5.1 Representations and Warranties
	 	 	13	 
	 
	 	 	 	 
	Article VI DEFAULT AND FORECLOSURE
	 	 	13	 
	 
	 	 	 	 
	6.1 Remedies
	 	 	13	 
	6.2 Rescission of Notice of Event of Default
	 	 	18	 
	6.3 Application of Proceeds
	 	 	18	 
	6.4 Additional Security
	 	 	18	 
	6.5 Remedies Cumulative
	 	 	19	 
	6.6 Attorney-in-Fact
	 	 	19	 
	6.7 WAIVER OF GRANTOR’S RIGHTS
	 	 	19	 
	6.8 Payment of Costs and Expenses
	 	 	20	 
	6.9 Grantor’s Waivers
	 	 	20	 
	 
	 	 	 	 
	Article VII MISCELLANEOUS
	 	 	21	 
	 
	 	 	 	 
	7.1 Performance at Grantor’s Expense
	 	 	21	 
	7.2 Grantee’s Right to Perform the Obligations
	 	 	22	 
	7.3 Survival of Obligations
	 	 	22	 
	7.4 Notices
	 	 	22	 
	7.5 Delay not a Waiver
	 	 	23	 
	7.6 Covenants Running with the Land
	 	 	23	 
	7.7 Severability
	 	 	23	 
	7.8 Entire Agreement and Modification
	 	 	23	 






 


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	 	 	Page	 
	 
	 
	7.9 Governing Law
	 	 	23	 
	7.10 Limitation on Grantee’s Responsibility
	 	 	24	 
	7.11 Rights of the Collateral Agent
	 	 	24	 
	7.12 No Liability for Clean up of Hazardous Materials
	 	 	24	 
	7.13 Headings
	 	 	24	 
	7.14 Marshalling
	 	 	24	 
	7.15 Waiver of Jury Trial and Consent to Jurisdiction
	 	 	25	 
	7.16 Maximum Indebtedness and Future Advances
	 	 	25	 
	7.17 Lien Absolute; Multiple Collateral Transaction
	 	 	26	 
	7.18 Cancellation of Deed to Secure Debt
	 	 	26	 
	7.19 Renewal or Extension of Notes; Substitute Notes
	 	 	26	 
	7.20 Conflicts
	 	 	27	 
	7.21 Assumption Not a Novation
	 	 	27	 
	7.22 Acknowledgment of Receipt of Copies of Debt Instrument
	 	 	27	 





 


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DEED TO SECURE DEBT, SECURITY AGREEMENT AND ASSIGNMENT OF

LEASES, RENTS

AND SECURITY DEPOSITS




THIS Deed to Secure Debt, Security Agreement and Assignment of Leases, Rents and Security
Deposits, dated as of February 4, 2011 (as amended, restated, replaced, supplemented or otherwise
modified from time to time, this “Deed to Secure Debt”), encumbers both real and personal
property, contains an after-acquired property clause and secures present and future loans and
advances.



THIS Deed to Secure Debt is executed by Southwest Georgia Ethanol, LLC, a Georgia limited
liability company and a debtor-in-possession under Chapter 11 of the Bankruptcy Code (as defined in
the Credit Agreement referred to below), as Grantor (“Grantor”), having an address at 4615
Back Nine Road, Pelham, GA 31779, and WestLB AG, New York Branch, having an address at 7 World
Trade Center, 250 Greenwich Street, New York, New York 10007, as Collateral Agent for the Senior
Secured Parties as described under the Credit Agreement referred to below (together with its
successors and assigns, “Grantee”).



W I T N E S S E T H:




WHEREAS, Grantor is the owner of certain real property located in Mitchell County, Georgia,
more particularly described on Exhibit A annexed hereto (the “Land”).



WHEREAS, on February 1, 2011, Grantor commenced Chapter 11 Case No. 11-10145 — JDW (the
“Chapter 11 Case”) by filing a voluntary petition for reorganization under the Bankruptcy
Code with the United States Bankruptcy Court for the Middle District of Georgia and Grantor
continues to operate its business and manage its properties as a debtor and debtor in possession
pursuant to Sections 1107(a) and 1108 of the Bankruptcy Code;



WHEREAS, pursuant to that certain Debtor-In-Possession Credit Agreement, of even date herewith
(the “Credit Agreement”), among Grantor, WestLB AG, New York Branch, Farm Credit Bank of
Texas and AgFirst Farm Credit Bank as lenders (along with their respective successors and assigns
as lenders under the Credit Agreement, the “Lenders”) and Grantee, as administrative agent
for the Lenders and as collateral agent for the Senior Secured Parties (as such term is defined in
the Credit Agreement), the Lenders have agreed to provide a senior secured, superpriority credit
facility to Grantor in a principal amount of up to Ten Million and 00/100 Dollars ($10,000,000.00).



WHEREAS, Grantor wishes to provide further assurance and security to Grantee and the Senior
Secured Parties, and as required by the Credit Agreement, Grantee and the Senior Secured Parties
are requiring that Grantor grant to Grantee, on behalf of the Senior Secured Parties, a security
interest in and upon the Property (as hereinafter defined) to secure all of the Grantor’s
Obligations under the Credit Agreement, this Deed to Secure Debt and the Financing Documents, with
the priority set forth in the Orders.



WHEREAS, the grant of such security interest and first priority lien has been authorized
pursuant to sections 364(c)(2), 364(c)(3) and 364(d)(1) of the Bankruptcy Code by the Interim Order
and, after the entry thereof, will have been so authorized by the Final Order.


 


 









 





NOW, THEREFORE, with reference to the foregoing recitals, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby:



Grantor does hereby irrevocably grant, bargain, sell, convey, warrant, assign and transfer to
Grantee, as Collateral Agent on behalf of the Senior Secured Parties including the Lenders, the
following property, whether now owned or hereafter acquired by Grantor (collectively, the
“Property”) for the purpose of securing the payment and performance of the Obligations:




	 	(i)	 	all of Grantor’s right, title and interest in and to the Land, and any
rights, entitlements, privileges and appurtenances thereunto belonging or in any
way pertaining thereto, all reversions, remainders, dower and right of dower,
curtesy and right of curtesy, and all of Grantor’s right, title and interest in and
to all transferable development rights arising therefrom or transferred thereto,
and, to the extent assignable, all appurtenances to such property, including any
now or hereafter belonging or in any way appertaining thereto, and all claims or
demands of Grantor, either at law or in equity, in possession or expectancy, now or
hereafter acquired, of in or to the same;
	 
	 	(ii)	 	all of Grantor’s right, title and interest in and to the Improvements,
including any alterations thereto or replacements thereof, now or hereafter erected
upon the Land;
	 
	 	(iii)	 	all of Grantor’s right, title and interest in and to all Fixtures now
or at any time hereafter affixed to, attached to, placed upon or used in any way in
connection with the use, occupancy, enjoyment, development, operation or ownership
of the Land or the Improvements, together with any and all replacements thereof and
additions thereto;
	 
	 	(iv)	 	all of Grantor’s right, title and interest in and to all Equipment and
Personalty now or at any time hereafter located at the Land or the Improvements,
together with any and all replacements thereof and additions thereto;
	 
	 	(v)	 	all of Grantor’s right, title and interest in and to all extensions,
improvements, betterments, renewals, substitutes and replacements of, and all
additions and appurtenances to, the Real Property and the Equipment, hereafter
acquired by or released to Grantor or constructed, assembled or placed by Grantor
on the Real Property, and all annexations to realty of the security constituted
thereby; immediately upon such acquisition, release, construction, assembling,
placement or annexation, as the case may be, and in each such case, without any
further mortgage, conveyance, assignment or other act by Grantor, any of such
extensions, improvements, betterments, renewals, substitutes and replacements shall
become subject to the lien of this Deed to Secure Debt as fully and completely, and
with the same effect, as though now owned by Grantor and specifically described
herein;




 


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	 	(vi)	 	all of Grantor’s right, title and interest in and to all easements,
streets, roads, alleys, passages, rights of way, air rights, lateral support,
drainage rights, options to purchase, utility rights, privileges, franchises,
servitudes, easements, tenements, hereditaments, and appurtenances now or hereafter
belonging or appertaining to any of the foregoing or to the Land; all mineral,
mining, gravel, oil, gas, hydrocarbon substances and other rights to produce or
share in the production of anything related to such property, all drainage, crop,
timber, agricultural, and horticultural rights with respect to such property; and
all o f Grantor’s right, title and interest in and to any streets, ways, alleys,
roadbeds, inclines, tunnels, culverts, strips or gores of land adjoining or serving
the Land or any part thereof, in each case whether now owned or hereafter acquired
by Grantor;
	 
	 	(vii)	 	all of Grantor’s right, title and interest in and to all of the real
estate and personal property tax refunds or rebates or charges in lieu of taxes now
or hereafter assessed or levied against the Real Property or any other part of the
Property, including interest thereon, and the right to receive the same, whether
such refunds or rebates relate to fiscal periods before or during the term of this
Deed to Secure Debt, payable to Grantor with respect to the Land or the
Improvements, and refunds, credits or reimbursements payable with respect to bonds,
escrow accounts or other sums payable in connection with the use, occupation,
enjoyment, development, or operation of the Land or the Improvements;
	 
	 	(viii)	 	all of Grantor’s right, title and interest in and to all Leases affecting the use
of the Land now or hereafter entered into and Rents;
	 
	 	(ix)	 	all of Grantor’s right, title and interest in and to all insurance
policies and the proceeds thereof, now or hereafter in effect with respect to the
Real Property or the UCC Collateral, including any and all title and property
insurance proceeds, and all unearned premiums and premium refunds, accrued,
accruing or to accrue under such insurance policies, and all of Grantor’s right,
title and interest in and to all proceeds, judgments, claims, compensation, awards
or payments made for any taking of or damage to all or any part of the Real
Property or the UCC Collateral by eminent domain or condemnation, or by any
purchase in lieu thereof, and all awards resulting from a change of grade of
streets or for severance damages, and all other proceeds of the conversion,
voluntary or involuntary, of any of the Property into cash or other liquidated
claims, and all judgments, damages, awards, settlements and compensation (including
interest thereon) heretofore or hereafter made to the present and all subsequent
owners of the Property or any part thereof for any injury to or decrease in the
value thereof for any reason;
	 
	 	(x)	 	to the extent assignable, and with respect to contracts and agreements,
excluding those which by their terms or by operation of Law prohibit or do not
allow assignment or which would become void or terminable by the counterparty
thereto solely by virtue of the grant made herein (the “Excluded
Contracts”), all of Grantor’s right, title and interest in and to all abstracts
of title, plans, specifications, operating manuals, computer programs, computer
data, maps, surveys, studies, reports, permits and licenses, records, plans, designs, drawings, surveys, title insurance policies, agreements, contract rights, approvals (but
excluding any Governmental Approval which by its terms or by operation of Law would
become void, voidable, terminable or revocable if mortgaged, pledged or assigned
hereunder or if a security interest granted hereunder is expressly excepted and
excluded from the Lien and terms of this Deed to Secure Debt to the extent necessary
so as to avoid such voidness, avoidability, terminability or revocability), actions,
appraisals, architectural, engineering and construction contracts, books of account,
insurance policies and other documents, of whatever kind or character, relating to
the Real Property;




 


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	 	(xi)	 	all of Grantor’s right, title and interest in and to all present and
future Leases, Property Agreements, Contracts (in each case other than Excluded
Contracts), and all Proceeds and Receivables, the proceeds from the sale, transfer,
disposition, conveyance or refinancing of all or any portion of the Property and
other benefits paid or payable and to become due or payable to Grantor in respect
of the use, occupancy, license or possession of any portion or portions of the
Property;
	 
	 	(xii)	 	all of Grantor’s right, as and to the extent set forth in the Credit
Agreement, in the name and on behalf of Grantor, to appear in and defend any action
or proceeding brought with respect to the Property, and to commence any action or
proceeding to protect the interest of Grantor in the Property;.
	 
	 	(xiii)	 	rights, titles, interests, estates or other claims, both in law and in equity,
which Grantor now has or may hereafter acquire in the Real Property or in and to
any greater estate in the Real Property or in and to any greater estate in the
Property;
	 
	 	(xiv)	 	all of Grantor’s right, title and interest in and to all property
hereafter acquired or constructed by Grantor located at or used in connection with
the Land of the type described in the foregoing granting clauses which shall
forthwith, upon acquisition or construction thereof by Grantor and without any act
or deed by Grantor or Grantee, become subject to the lien of this Deed to Secure
Debt as if such property were now owned by Grantor and were specifically described
in this Deed to Secure Debt and were specifically conveyed or encumbered hereby;
	 
	 	(xv)	 	all of Grantor’s right, title and interest in and to accessions,
additions or attachments to, and all receipts, issues, profits, proceeds and
products arising from, any of the foregoing and any and all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing into cash or
liquidated claims;
	 
	 	(xvi)	 	all of Grantor’s right, title and interest in and to all Inventory
now, or at any time hereafter located at the Land or the Improvements or used in
any way in connection with the use, occupancy, enjoyment, development or operation
of the Land or the Improvements, together with any and all replacements thereof and
additions thereto, together with all of Grantor’s right, title and interest in and
to all Accounts;




 


4









 






	 	(xvii)	 	Grantor’s interest, if any, in and to all pipelines and pipeline gathering
systems used in connection with the Project lying on, in or across lands or any
part thereof located in Mitchell County, Georgia, together with all equipment,
fittings, fixtures, pipe, machinery, pumps, appliances, valves, meters, tanks and
other personal or real property appertaining to said pipeline gathering systems and
all tenements, hereditaments and appurtenances now owned or hereafter acquired in
connection therewith together with all rights of way, servitudes, easements and
permits for said pipeline gathering systems; and
	 
	 	(xviii)	 	All water, water rights, ditches, ditch rights, and all other entitlements of
any kind to water for beneficial uses on, or otherwise appurtenant to, the
Property, including without limitation, groundwater, surface water and storage
water together with all claims, applications, permits, licenses, decrees, shares,
certificates or contracts representing same.





“Property,” including each component thereof shall be expressly interpreted as meaning
all or, where the context permits or requires, any portion of the above, and all or, where the
context permits or requires, any interest of Grantor therein.



AND without limiting any of the other provisions of this Deed to Secure Debt, Grantor
expressly grants to Grantee, as secured party for itself and for the ratable benefit of the Senior
Secured Parties including the Lenders, a security interest in the portion of the Property which is
or may be subject to the provisions of the Uniform Commercial Code as in effect from time to time
in the state in which the Real Property is located (as the same may have been or may hereafter be
amended, the “Uniform Commercial Code”) which are applicable to secured transactions; it
being understood and agreed that the Improvements and Fixtures are part and parcel of the Real
Property and appropriated to the use thereof and, whether affixed or annexed to the Real Property
or not, shall for the purposes of this Deed to Secure Debt be deemed conclusively to be real estate
and conveyed hereby.



TO HAVE AND TO HOLD as provided herein, the above granted and described Property unto and to
Grantee, and the successors and assigns of the Grantee in fee simple, forever, for itself and for
the ratable benefit of the Senior Secured Parties and their respective assigns and successors
forever, in each case subject to Section 7.18 hereof.



This Deed to Secure Debt is intended to operate and is to be construed as a deed passing the
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 Obligations.



During the pendency of the Chapter 11 Case, any inconsistency between the terms of this Deed
to Secure Debt and the Bankruptcy Code shall be resolved in favor of the Bankruptcy Code.



AND TO PROTECT THE SECURITY OF THIS DEED TO SECURE DEBT, Grantor hereby agrees as follows:


 


5









 





ARTICLE I




DEFINITIONS




1.1 Definitions. Capitalized terms used herein without definition shall have the respective meanings
ascribed to them in the Credit Agreement. As used herein, the following terms shall have the
following meanings:



“Credit Agreement” shall have the meaning set forth in the Recitals of this Deed to
Secure Debt.



“Contracts” means all contracts to which the Grantor now is, or hereafter will be,
bound, or a party, Grantee or assignee, including exhibits thereto, and all other instruments,
agreements and documents executed and delivered with respect to such contracts, all consents, and
all revenues, rentals, Proceeds and other sums of money due and to become due from any of the
foregoing, as the same may be modified, supplemented or amended from time to time in accordance
with their terms.



“Deed to Secure Debt” means this Deed to Secure Debt, Security Agreement and
Assignment of Leases, Rents and Security Deposits, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.



“Excluded Contracts” shall have the meaning set forth in the granting clauses of this
Deed to Secure Debt.



“Equipment” means all “equipment,” as such term is defined in Article 9 of the Uniform
Commercial Code, whether now owned or hereafter acquired by Grantor, including all machinery,
appliances, apparatus, fittings, materials, equipment, pipes, pipelines (including meters,
connections, values and associated equipment), tanks, mains, lines, pumps, cables, lines, wires,
conduits, poles and related equipment, loading and unloading equipment, motors, switchboards,
cleaning, fire prevention, fire extinguishing, cooling and ventilation equipment, furnishings, and
electronic data-processing and other office equipment now owned or hereafter acquired by Grantor
and any and all additions, substitutions and replacements of any of the foregoing, together with
all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.
Notwithstanding the foregoing, Equipment shall not include any property belonging to tenants under
leases except to the extent that Grantor shall have any right or interest therein.



“Fixtures” means all Equipment now owned, or the ownership of which is hereafter
acquired, by Grantor that is deemed fixtures or real property under the law of the state in which
the Real Property is located, including all building or construction materials intended for
construction, reconstruction, alteration or repair of or installation on the Property, construction
equipment, appliances, machinery, plant equipment, fittings, apparatuses, fixtures and other items
now or hereafter attached to, installed in or used in connection with (temporarily or pemanently)
any of the Improvements or the Real Property, including engines, devices for the operation of
pumps, pipes, plumbing, cleaning, call and sprinkler systems, fire extinguishing
apparatuses and equipment, heating,



 


6









 






ventilating, plumbing, laundry, incinerating, electrical,
air conditioning and air cooling equipment and systems, gas and electric machinery, appurtenances
and equipment, pollution control equipment, security systems, disposals, cables, wires, pipelines
(including meters, connections, valves and other associated equipment), conduits, mains, lines,
ducts, fences, lighting fixtures, recreational equipment and facilities of all kinds, and water,
gas, electrical, storm and sanitary sewer facilities, utility lines and electric transmission
equipment (whether owned individually or jointly with others, and, if owned jointly, to the extent
of Grantor’s interest therein) and all other utilities whether or not situated in easements, all
water tanks, water supply, water power sites, fuel stations, fuel tanks, fuel supply, and all other
structures, together with all accessions, appurtenances, additions, replacements, betterments and
substitutions for any of the foregoing and the proceeds thereof



“Grantee” shall have the meaning set forth in the Preamble of this Deed to Secure
Debt.



“Grantor” shall have the meaning set forth in the Preamble of this Deed to Secure
Debt.



“Improvements” means any and all buildings, structures, foundations, storage and other
tanks, utility sheds, workrooms, towers, retention basins, generating units, pump stations,
transformers, retaining walls, pipes, cables, landscaping, irrigation and drainage pipes and
facilities, open parking areas, and all other structures, improvements and fixtures of every kind
whatsoever, whether above or below the land surface, and whether permanent or temporary, and any
and all additions, alterations, betterments or appurtenances thereto, and all renewals,
substitutions or replacements now or at any time owned, or hereafter acquired by Grantor and
situated, placed or constructed on, over or under the Real Property or any part thereof.



“Land” shall have the meaning set forth in the Recitals of this Deed to Secure Debt.



“Leases” means, collectively, any lease or ground lease, or, to the extent of the
interest therein of Grantor, any sublease or subsublease, license, concession or other agreement
(whether written or oral and whether now or hereafter in effect) pursuant to which Grantor holds
the interest of lessor, sublessor, subsublessor or licensor, as the case may be, and pursuant to
which any Person is granted a possessory interest in, or right to use or occupy all or any portion
of the Property, and every modification, amendment or other agreement relating to such lease,
ground lease, sublease, subsublease, license, concession or other agreement entered into in
connection therewith, and every guarantee of the performance and observance of the covenants,
conditions and agreements to be performed and observed by the other party or parties thereto.



“Personalty” means all furniture, furnishings, machinery, goods, inventory, tools,
supplies, appliances, general intangibles, contract rights, accounts (including, without
limitation, the Accounts), accounts receivable, franchises, reserve accounts, escrows, documents,
instruments, chattel paper, claims, deposits, licenses, trade names, trademarks, symbols, service
marks, books, records, business names, company names, trade secrets, certificates and permits, and
all other personal property of any kind or character whatsoever (as defined in and subject to the
provisions of the Uniform Commercial Code), which are now or hereafter owned by Grantor and which
are related to the Real Property, together with all accessories, replacements and substitutions
thereto or therefor and the proceeds thereof.


 


7









 





“Proceeds” means “proceeds” as such term is defined in the Uniform Commercial Code as
in effect in any relevant jurisdiction or under other relevant law and, in any event, shall
include, but shall not be limited to, (i) any and all proceeds of any insurance, indemnity,
warranty or guaranty payable to Grantor from time to time, and claims for insurance, indemnity,
warranty or guaranty effected or held for the benefit of Grantor, with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to Grantor
from time to time in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any Governmental Authority (or any person acting
under color of Governmental Authority) and (iii) any and all other amounts from time to time paid
or payable under or in connection with any of the Collateral.



“Property” shall have the meaning set forth in the granting clauses of this Deed to
Secure Debt.



“Property Agreements” means all material option agreements, purchase and sale
agreements, construction contracts, architect contracts, engineering contracts, service contracts,
utility contracts, equipment leases, equipment maintenance contracts and equipment warranties,
purchase contracts, purchase orders and similar agreements and all amendments thereto now or
hereafter relating to any portion of the Property and entered into or assumed by or on behalf of
Grantor.



“Real Property” means, collectively the Land, the Improvements and the Fixtures.



“Receivables” means any “account” as such term is defined in the Uniform Commercial
Code and in any event shall include, but not be limited to, all of the Grantor’s rights to payment
for goods sold or leased, or services performed, by the Grantor, whether now in existence or
arising from time to time hereafter, including, without limitation, rights evidenced by an account,
note, contract, contract rights (including any and all rights to liquidated damage payments),
security agreement, chattel paper, or other evidence of indebtedness or security, together with (i)
all security pledged, assigned, hypothecated or granted to the Grantor to secure the foregoing,
(ii) all the Grantor’s right, title and interest in and to any goods, the sale of which gave rise
thereto, (iii) all guarantees, warranties, endorsements, indemnifications or collateral on, or of,
any of the foregoing, (iv) all powers of attorney for the execution of any evidence of indebtedness
or security or other writing in connection therewith, (v) all books, correspondence, credit files,
records, ledger cards, invoices, and other papers relating thereto, including without limitation
all similar information stored on a magnetic medium or other similar storage device and other
papers and documents in the possession or under the control of the Grantor or any computer bureau
from time to time acting for the Grantor, (vi) all evidences of the filing of financing statements
and other statements and the registration of other instruments in connection therewith and
amendments thereto, notices to other creditors or Secured Parties, and certificates from filing or
other registration officers, (vii) all credit information, reports and memoranda relating thereto,
and (viii) all other writings related in any way to the foregoing.


 


8









 





“Rents” means all rents, issues, revenues, income, proceeds, profits, royalties,
security (including all oil and gas or other hydrocarbon substances, earnings, receipts, revenues,
accounts, accounts receivable, security deposits and other deposits (subject to the prior right of
the tenants making such deposits)) and income, including fixed, additional and percentage rents,
operating
expense reimbursements, reimbursements for increases in taxes, sums paid by tenants to Grantor
to reimburse Grantor for amounts originally paid or to be paid by Grantor or Grantor’s agents or
affiliates for which such tenants were liable, as, for example, tenant improvements costs in excess
of any work letter, lease takeover costs, moving expenses and tax and operating expense
pass-throughs for which a tenant is solely liable, parking, maintenance, common area, tax,
insurance, utility and service charges and contributions, deficiency rents and liquidated damages,
and other benefits now or hereafter derived from any portion of the Real Property or the use,
enjoyment, development, operation, ownership or occupancy thereof and all cash or security
deposits, advance rentals, and all deposits or payments of a similar nature relating thereto, now
or hereafter, including during any period of redemption, derived from the Real Property or any
other portion of the Property, in each case pursuant to the Leases, and all proceeds from the
cancellation, surrender, sale or other disposition of the Leases and other benefits paid or payable
and to become due or payable to Grantor in respect of the use, occupation, enjoyment, development,
operation or ownership of any portion or portions of the Property pursuant to the Leases.



“UCC Collateral” shall have the meaning set forth in Section 4.1 hereof.



“Uniform Commercial Code” shall have the meaning set forth in the Granting Clauses
hereof.



1.2 Principles of Construction. All references to sections, schedules and exhibits are to sections, schedules and exhibits
in or to this Deed to Secure Debt unless otherwise specified. Unless otherwise specified, the words
“hereof” “herein” and “hereunder” and words of similar import when used in this Deed to Secure Debt
shall refer to this Deed to Secure Debt as a whole and not to any particular provision of this Deed
to Secure Debt. The words and phrases “including,” “shall include,” “inclusive of” and words and
phrases of similar import shall be deemed to be followed by “without limitation” or “but not
limited to.” Unless otherwise specified, all meanings attributed to defined terms herein shall be
equally applicable to both the singular and plural forms of the terms so defined. All persons
stated in the masculine, feminine or neuter gender shall include other genders as appropriate.



ARTICLE II




GENERAL RIGHTS OF GRANTEE




2.1 General Rights of Grantee. Grantor hereby agrees with Grantee that Grantee may at any time and from time to time,
without liability therefor, without notice and without affecting the liability of any person,
including, without limitation, Grantor, for the payment or performance of any indebtedness secured
by this Deed to Secure Debt, or the lien of this Deed to Secure Debt on the Property or any portion
thereof: (i) release any person liable for the payment of any Obligations, extend the time or
otherwise alter the terms of payment of any Obligations and make compositions or other arrangements
with any debtor in relation thereto, alter, substitute, or release any portion of the
Property or any other collateral securing any Obligations, and grant such other indulgences as
Grantee may determine in its sole discretion; and (ii) consent to the making of any map or plat of
the Real Property, join in granting any easements or creating any restrictions on the Real Property
and join in any extension agreement or any agreement subordinating the lien or charge of this Deed
to Secure Debt. The term “lien of this Deed to Secure Debt” or like terms used herein shall be
deemed to mean the “security title and security interest granted by this Deed to Secure Debt”.


 


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ARTICLE III




ABSOLUTE ASSIGNMENT OF LEASES AND RENTS




3.1 Absolute Assignment of Leases and Rents. Grantor absolutely and unconditionally assigns, transfers and sets over to Grantee all
right, title and interest in and to all Rents and all other right, title and interest of Grantor
created under or by virtue of any and all Leases and, with respect to the foregoing:



(a) Grantee grants to Grantor a license to collect, subject to the provisions herein, all
Rents as they respectively become due, but not more than thirty (30) days in advance, and to
enforce the agreements of the Leases, so long as an Event of Default has not occurred and is
continuing;



(b) This absolute and present assignment shall be fully operative without any further action
on the part of Grantor or Grantee and, specifically, Grantee shall be entitled, at its sole option,
to all Rents whether or not Grantee takes possession of the Property, including, without
limitation, all Rents in Grantor’s possession or control. Upon the occurrence and during the
continuation of an Event of Default and whether before or after the institution of legal
proceedings to foreclose this Deed to Secure Debt by action in any court or by exercise of the
power of sale herein contained or before or after sale thereunder or during any period of
redemption, Grantee, without regard to waste, adequacy of the security for the Obligations secured
by this Deed to Secure Debt or the solvency of Grantor, may revoke the license granted Grantor
hereunder to collect the Rents, and may, at its option, without notice and with or without taking
possession of or entering the Property, either: (i) in person or by agent, with or without any
action or proceeding, (A) enter upon, take possession of manage and operate the Property or any
part thereof, in its own name or in the name of Grantor (provided, however, such entering upon and
taking possession of the Property shall not be a condition precedent or limitation of Grantee’s
right to collect the Rents); (B) give, or require Grantor to give, notice to any or all tenants
under any Leases authorizing and directing the tenants to pay such Rents to Grantee; (C) sue for or
otherwise collect all of the Rents (including those past due and unpaid or which are in Grantor’s
possession or control at the time of such Event of Default) and apply the Rents as hereinafter
provided; (D) enforce the payment of the Rents and exercise all of the rights of the landlord under
the Leases and all of the rights of Grantee hereunder; (E) cancel, enforce or modify the Leases,
and fix or modify Rents; (F) do any acts which Grantee deems proper to protect its security; (G)
take all steps which may be desirable in Grantee’s judgment to complete any unfinished
construction, and to operate and manage the Property; and (H) perform such other reasonable acts or
repairs or protections as may be reasonably necessary or proper in Grantee’s
sole judgment to conserve the value thereof; or (ii) apply for the appointment of a receiver
in accordance with applicable Law, which receivership Grantor hereby consents to, who shall collect
the Rents, and all other income of any kind; manage the Property so to prevent waste; execute
Leases within or beyond the period of receivership, perform any of the other activities set



 


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forth
in Section 3.1(b)(i) above and perform the other terms and conditions contained in this Deed to Secure Debt, the other Financing Documents and apply the Rents as hereinafter provided. The
entering upon and taking of possession of the Property, the appointment of a receiver, and/or the
collection and application of the Rents shall not cure or waive any Event of Default or notice of
default hereunder or invalidate any act done pursuant to such notice. The purchaser at any
foreclosure sale, including Grantee, shall have the right, at any time and without limitation as
provided to advance money to any receiver appointed hereunder to pay any part or all of the items
which the receiver would otherwise be authorized to pay if cash were available from the Property
and the sum so advanced, with interest at the Default Rate, shall be a part of the sum required to
be paid to redeem from any judicial foreclosure sale, in each case to the fullest extent permitted
by applicable Law. The rights hereunder shall in no way be dependent upon and shall apply without
regard to whether the Property is in danger of being lost, materially injured or damaged or whether
the Property is adequate to discharge the Obligations secured by this Deed to Secure Debt;



(c) Any Rents collected pursuant to the terms of Section 3.1(b) above shall be applied
in the manner set forth in Section 6.01(a) of the Accounts Agreement, as it may be amended
from time to time. If the Property shall be foreclosed and sold pursuant to a judicial or
non-judicial foreclosure sale, then in such event, the Rents, after application first as set forth
in the preceding sentence, shall be applied to the fullest extent permitted by applicable Law as
set forth in Section 8.12 of the Credit Agreement;



(d) Notwithstanding the right to collect the Rents, following the occurrence and during the
continuation of an Event of Default, Grantor agrees that Grantee, and not Grantor, shall be and be
deemed to be the creditor of each tenant with respect to assignments for the benefit of creditors
and bankruptcy, arrangement, reorganization, insolvency, dissolution or receivership proceedings
affecting such tenant, but without obligation on the part of Grantee, however, to file or make
timely filings of claims in such proceedings or otherwise to pursue creditor’s rights therein;



(e) Grantor irrevocably consents that the tenant(s) under the Leases, upon demand and notice
from Grantee to such tenant(s) of an Event of Default, shall pay all Rents under the Leases to
Grantee without liability of the tenant(s) for the determination of the actual existence of any
Event of Default claimed by Grantee. Grantor hereby irrevocably authorizes and directs the
tenant(s), upon receipt of any notice of Grantee stating that an Event of Default exists, to pay to
Grantee the Rents due and to become due under the Leases. Grantor agrees that the tenant(s) shall
have the right to rely upon any such notices of Grantee and that tenant(s) shall pay such Rents to
Grantee, without any obligation or without any right to inquire whether such Event of Default
actually exists and notwithstanding any claim of or notice by Grantor to the contrary. Grantor
shall have no claim against tenant(s) for any Rents paid by such tenant(s) to Grantee;



(f) Grantee shall have the right to assign Grantee’s right, title and interest in the Leases
to any subsequent holder of this Deed to Secure Debt and to any person acquiring title
to any of the Real Property through foreclosure or otherwise. After Grantor shall have been
barred and foreclosed of all right, title, interest in the Land, no assignee of Grantor’s interest
in the Leases shall be liable to account to Grantor for the Rents thereafter accruing;


 


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(g) Nothing herein contained shall be construed to bind Grantee to the performance of any o f
the terms or provisions contained in the Leases, or otherwise to impose any obligation on Grantee
whatsoever. Prior to actual entry and taking possession of the Real Property by Grantee, this
assignment shall not operate to make Grantee a “Grantee-in-possession” or to place any
responsibility for the control, care, management, or repair of the Real Property (or any of the
Property) upon Grantee;



(h) The Leases shall remain in full force and effect irrespective of any merger of the
interest of the lessor and any tenant thereunder. Grantor shall, at the request of Grantee, execute
such further assignments to Grantee of all Leases and Rents, as Grantee shall reasonably require,
and provide to Grantee true and correct copies of all Leases and documents and instruments,
executed in connection therewith; and



(i) It is the expressed intention of Grantor and Grantee that this Section 3.1
establish an absolute transfer and assignment of the Leases and Rents, and is not intended or given
as additional security for the Obligations.



ARTICLE IV




SECURITY AGREEMENT




4.1 Rights to UCC Collateral under the Uniform Commercial Code. This Deed to Secure Debt is both a real property deed to secure debt and a “security
agreement” within the meaning of the Uniform Commercial Code. The Property includes both real,
leased and personal property and all other rights and interests, whether tangible or intangible in
nature, of Grantor in the Property. Grantor, by executing and delivering this Deed to Secure Debt,
has granted and does hereby grant to Grantee as security for the Obligations, a continuing security
interest in the Property to the full extent that the Property may be subject to the Uniform
Commercial Code (said portion of the Property so subject to the Uniform Commercial Code, the
“UCC Collateral”) with the priority set forth in the Orders. If an Event of Default shall
occur and be continuing, Grantee, in addition to any other rights and remedies which it may have,
shall have, and may exercise immediately and without demand, any and all rights and remedies
granted to a secured party under the Uniform Commercial Code, including the right to take
possession of the UCC Collateral or any part thereof, and to take such other measures as Grantee
may deem necessary for the care, protection and preservation of the UCC Collateral. Upon request or
demand of Grantee, Grantor shall, at its expense, assemble the UCC Collateral and make it available
to Grantee at a convenient place acceptable to Grantee. Grantor shall pay to Grantee on demand any
and all reasonable expenses, including legal expenses and attorneys’ fees, incurred or paid by
Grantee in protecting its interest in and to the UCC Collateral and in enforcing its rights
hereunder with respect to the UCC Collateral. Any notice of sale, disposition or other intended
action by Grantee with respect to the UCC Collateral sent to Grantor in accordance with the
provisions hereof at least ten (10) Business Days prior to such
action, shall, except as otherwise provided by applicable Law, constitute reasonable notice to
Grantor. The proceeds of any disposition of the UCC Collateral, or any part thereof, may, except as
otherwise required by applicable Law, be applied by Grantee to the payment of the Obligations in
such priority and proportions set forth in the Credit Agreement. Grantor’s (the debtor’s) address
and sole place of business and the address of Grantee (the secured party) are as set forth in
Section 7 4 hereof.


 


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4.2 Financing Statements. Portions of the Property are goods that are or are to become fixtures. The address of
Grantor (the debtor) and the address of Grantee (the secured party) are as set forth in Section
7.4 hereof. Grantor is the record owner of the Land. Information concerning the security
interest created by this Deed to Secure Debt may be obtained from the Grantee, as secured party, at
its address set forth in Section 7.4 hereof. The Georgia limited liability company control
number of Grantor is 07086820.



ARTICLE V




REPRESENTATIONS OF GRANTOR




5.1 Representations and Warranties. Grantor represents, covenants and warrants that:



(a) all Improvements now or hereafter located on the Property are, or will be, located
entirely within the boundaries of the Land or on property in which Grantor now or hereafter
possesses a valid interest;



(b) no portion of the Property is being used or occupied as the personal residence of Grantor
and no residential units arc located on the Property; and



(c) Grantor is not using the Property for farming operations.



ARTICLE VI




DEFAULT AND FORECLOSURE




6.1 Remedies. Following the occurrence and during the continuation of an Event of Default, Grantee may,
at Grantee’s election, take such action permitted at law or in equity, without notice or demand, as
it deems advisable to protect and enforce its rights and the rights of the other Senior Secured
Parties against Grantor and in and to the Property, subject to the Orders and in accordance with
the requirements of applicable Law. Without limitation of the foregoing, Grantee may take any one
or more of the following actions, each of which may be pursued concurrently or otherwise, at such
time and in such order as Grantee may, subject to the Orders, determine in its sole discretion,
without impairing or otherwise affecting the other rights and
remedies of Grantee and without impairing any notice of default or election to cause the
Property to be sold or any sale proceeding predicated thereon:



(a) demand, collect or realize upon all or any part of the Property and assemble or require
Grantor to assemble all or any part of the Property;



(b) commence, appear in or defend any action or proceeding purporting to affect all or any
part of the Property or the interests, rights, powers or duties of any Senior Secured Party
therein, whether brought by or against Grantor, Grantee or any Senior Secured Party;



(c) pay, purchase, contest or compromise any claim, debt, lien, charge or encumbrance which in
the reasonable judgment of Grantee may adversely affect the Property or the interest, rights,
powers or duties of any Senior Secured Party therein;


 


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(d) in such manner and to such extent as Grantee may deem necessary to protect the Property or
the interests, rights, powers or duties of any Senior Secured Party therein, Grantee may by itself,
its agents or attorneys, enter into and upon the Property or any part thereof or any other property
at which the Property may be located without being deemed a “Grantee-in-possession” and take and
hold exclusive possession of all or any part of the Property (which Grantor agrees to surrender)
and exclude Grantor from the Property, and with or without the appointment of a receiver, whether
appointed pursuant to Section 6.1(j), hereof or otherwise, (i) operate and manage the
Property or any part thereof either itself or by other Persons, (ii) rent and lease the same, (iii)
perform such acts of repair or protection as may be necessary or proper to conserve the value of
the Property, (iv) make such useful additions, alterations, betterments and improvements to the
Property as Grantee may reasonably deem advisable, (v) collect any and all income, Rents, issues,
profits and proceeds from the Property, the same being hereby assigned and transferred to Grantee,
and (vi) from time to time apply or accumulate such income, Rents, issues, profits and proceeds in
such order and manner as Grantee shall determine, it being understood that the collection or
receipt of income, Rents, issues, profits or proceeds from the Property after an Event of Default
and election to cause the Property to be sold under and pursuant to the terms of this Deed to
Secure Debt shall not affect or impair any Event of Default or election to cause the Property to be
sold or any sale proceedings predicated thereon, but such proceedings may be conducted and sale
effected notwithstanding the collection or receipt of any such income, Rents, issues, profits and
proceeds;



(e) proceed by suit or suits at law or in equity or by any other appropriate proceedings or
remedy to enforce payment of the Obligations or the performance of any other term hereof or any
other right and 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 Obligations and all expenses of
sale and of all proceedings in connection therewith including reasonable attorney’s fees, after
advertising the time, place and terms of sale once a week for four (4) weeks immediately preceding
such sale (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 or
limited warranties of title and to this end, Grantor hereby constitutes and
appoints Grantee the agent and attorney-in-fact of Grantor to make 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 and doings of said agent and attorney-in-fact are hereby ratified and confirmed and any
recitals in said conveyance or conveyances as to facts essential to a valid sale shall be binding
upon Grantor. 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 Obligations and shall not be exhausted by one exercise
thereof but may be exercised until full payment of all of the Obligations. In the event of any sale
under this Deed to Secure Debt by virtue of the exercise of the powers herein granted, or 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 Deed to Secure Debt at
one or more separate sales in any manner permitted by the Uniform Commercial Code of the State of
Georgia, and one or more exercises of the powers herein granted shall not extinguish nor exhaust
such powers, until the entire Property are sold or the Obligations is paid in full. If the
Obligations 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.


 


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Without limiting the foregoing, Grantee may, subject to the Orders, elect to cause the
Property or any part thereof to be sold as follows:




(i) In connection with any sale or sales hereunder, Grantee shall be entitled to elect
to treat any of the Property which consists of a right in action or which is property that
can be severed from the Real Property covered hereby or any Improvements without causing
structural damage thereto as if the same were personal property, and dispose of the same in
accordance with applicable Law, separate and apart from the sale of Real Property. Where the
Property consists of Real Property and Personalty, whether or not such Personalty is located
on or within the Real Property, Grantee shall be entitled to elect to exercise rights and
remedies against any or all of the Real Property and Personalty in such order, at such times
and in such manner as is now or hereafter permitted by applicable Law;




(ii) Grantee shall be entitled to elect to proceed against any or all of the Real
Property or Personalty in any manner permitted under applicable Law; and if Grantee so
elects pursuant to applicable Law;




(iii) If the Property consists of several lots, parcels or items of property, Grantee,
subject to applicable Law, may (A) designate the order in which such lots, parcels or items
shall be offered for sale or sold, or (B) elect to sell such lots, parcels or items through
a single sale, or through two or more successive sales, or in any other manner Grantee
designates. Any person, including Grantor or Grantee, may purchase at any sale hereunder.
Should Grantee desire that more than one sale or other disposition of the Property be
conducted, Grantee shall, subject to applicable Law, cause such sales or dispositions to be
conducted simultaneously, or successively, on the same day, or at such
different days or times and in such order as Grantee may designate, and no such sale
shall terminate or otherwise affect the lien and security title of this Deed. to Secure Debt
on any part of the Property not sold until all the Obligations have been paid in full. In
the event Grantee elects to dispose of the Property through more than one sale, Grantor
agrees to pay the costs and expenses of each such sale and of any proceedings wherein such
sale may be made;




(iv) Grantee may, from time to time postpone or adjourn any sale by it to be made under
or by virtue of this Deed to Secure Debt by announcement at the time and place appointed for
such sale or for such adjourned sale or sales; and, except as otherwise provided by any
applicable provision of Law, Grantee may, without further notice or publication, make such
sale at the time and place to which the same shall be so adjourned, or the Grantee may give
a new notice of sale;


 


15









 






(v) Upon any sale made under or by virtue of this Section 6.1(e) (whether made
under the power of sale granted herein or by virtue of proceedings or of a judgment or
decree of foreclosure and sale), Grantee may bid for and acquire the Property or any part
thereof and in lieu of paying cash therefor may make settlement for the purchase price by
crediting upon the Obligations the net sales price after deducting therefrom the expenses of
the sale and the costs of the action and any other sums which Grantee is authorized to
deduct under this Deed to Secure Debt, or any other Financing Document;




(vi) Upon any foreclosure sale or sales of all or any portion of the Property under the
power herein granted, Grantee may bid for and purchase the Property and shall be entitled to
apply all or any part of the Obligations as a credit to the purchase price.




(vii) In case Grantee shall have proceeded to enforce any right, power or remedy under
this Deed to Secure Debt by foreclosure, entry or otherwise, or in the event Grantee
commences advertising of the intended exercise of the sale under power provided hereunder,
and such proceeding or advertisement shall have been withdrawn, discontinued or abandoned
for any reason, or shall have been determined adversely to Grantee, then in every such case,
(i) all rights, powers and remedies of Grantee shall continue as if no such proceeding had
been taken, (ii) each and every Event of Default declared or occurring prior to or
subsequent to such withdrawal, discontinuance or abandonment shall and shall be deemed to be
a continuing Event of Default, and (iii) neither this Deed to Secure Debt, nor the Notes,
nor the Obligations, nor any other instrument concerned therewith, shall be or shall be
deemed to have been reinstated or otherwise affected by such withdrawal, discontinuance or
abandonment; and Grantor hereby expressly waives the benefit of any statute or rule of law
now provided, or which may hereafter be provided, which would produce a result contrary to
or in conflict with the above.




(viii) No recovery of any judgment by Grantee and no levy of an execution under any
judgment upon the Property or upon any other property of Grantor shall affect in any manner
or to any extent, the Lien of this Deed to Secure Debt upon the Property or any part
thereof, or any Liens, titles, rights, powers or remedies of Grantee hereunder,
under any other Financing Document, but such Liens, titles, rights, powers and remedies
of Grantee shall continue unimpaired as before;




(ix) Grantor agrees, to the fullest extent permitted by Law, that upon the occurrence
and during the continuation of an Event of Default, neither Grantor nor anyone claiming
through or under Grantor shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension, homestead, exemption or redemption laws now or
hereafter in force, in order to prevent or hinder the enforcement or foreclosure of this
Deed to Secure Debt, or the absolute sale of the Property, or the final and absolute putting
into possession thereof, immediately after such sale, of the purchasers thereat, and
Grantor, for itself and all who may at any time claim through or under it, hereby waives to
the fullest extent that it may lawfully so do, the benefit of all such laws, and any and all
right to have the assets comprised in the security intended to be created hereby marshaled
upon any foreclosure of the Lien hereof; and


 


16









 






(x) Grantee may foreclose this Deed to Secure Debt subject to the rights of any tenants
of the Property, and the failure to make any such tenants parties to any such foreclosure
proceedings and to foreclose such tenants’ rights will not be, nor be asserted to be by
Grantor, a defense to any proceedings instituted by Grantee to collect the sums secured
hereby.



(f) take over and direct collection of the Rents, the Proceeds and the Receivables that are
included in the Property and the proceeds thereof, give notice of the lien of this Deed to Secure
Debt upon the Rents, the Proceeds and the Receivables and the proceeds thereof to any or all
Persons obligated to Grantor thereon, direct such Persons to make payment of all moneys paid or
payable thereon directly to Grantee (and, at the request of Grantee, Grantor shall indicate on all
billings that payments thereon are to be made to Grantee) and give any Person so notified and
directed the receipt of Grantee for any such payment as full release for the amount so paid;



(g) take control of any and all of the Rents, Proceeds and Receivables, accounts, contractual
and other rights that are included in the Property and proceeds arising from any such contractual
and other rights, and enforce collection, either in the name of Grantee or in the name of Grantor,
of any or all of the Rents, Proceeds and Receivables, accounts, contractual and other rights that
are included in the Property and proceeds thereof by suit or otherwise, and receive, surrender,
release or exchange all or any part thereof or compromise, settle, extend or renew (whether or not
longer than the original period) any indebtedness thereunder;



(h) endorse in the name of Grantor any instrument, howsoever received by Grantee, representing
Property, or proceeds of any of the Property;



(i) subject to the provisions of Article IV hereof, exercise all the rights and
remedies granted to a secured party under Article 9 of the Uniform Commercial Code in effect in the
jurisdiction where the Property is located and all other rights and remedies given to Grantee by
this Deed to Secure Debt or any other Financing Document otherwise available at law or in equity;
and



(j) to the fullest extent permitted by applicable Law, without further notice to Grantor, as a
matter of right without notice and without giving bond and without regard to the solvency or
insolvency of Grantor, whether waste has occurred or is occurring to the Property, value of the
Property or adequacy of the security of the Property, to apply to any court having jurisdiction for
the appointment of a receiver or receivers for the Property, and Grantor does hereby irrevocably
consent to such appointment. Notwithstanding the foregoing, Grantor hereby waives any right to
require appointment of a receiver.


 


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Grantee shall not be under any obligation to make any of the payments or do any of the acts
referred to in this Section 6.1 and, except as otherwise required by law, any of the
actions referred to in this Section 6.1 may be taken irrespective of whether any election
to sell has been given hereunder and without regard to the adequacy of the security for the
Obligations. To the fullest extent permitted by applicable Law, Grantor hereby expressly waives any
and all rights of redemption from sale under the power of sale granted herein or under any order or
judgment of foreclosure of the Lien of this Deed to Secure Debt on behalf of Grantor and each and
every person acquiring any interest in or title to the Property subsequent to the date of this Deed
to Secure Debt and on behalf of any other Persons. The reasonable costs and expenses (including
reasonable attorneys’ fees and disbursements) of Grantee incurred in connection with the
preservation, collection and enforcement of this Deed to Secure Debt or of the Lien granted hereby,
including any amounts advanced by Grantee to protect or preserve the Property, shall be secured by
this Deed to Secure Debt, and Grantor covenants and agrees to pay them to the order of Grantee
promptly upon demand.



6.2 Rescission of Notice of Event of Default. Grantee, at any time before any sale pursuant to Section 6.1, may rescind any
notice of an Event of Default and/or of election to cause any portion of the Property to be sold.
The exercise by Grantee of such right of rescission shall not (unless otherwise expressly provided
by the terms of such rescission) constitute a waiver of any Event of Default then existing or
subsequently occurring, shall not impair the right of Grantee to cause any portion of the Property
to be sold thereafter and shall not otherwise affect any provision, agreement, covenant or
condition of this Deed to Secure Debt, the Credit Agreement or any other Financing Document or the
rights, obligations or remedies of the parties hereunder or thereunder.



6.3 Application of Proceeds.



(a) To the fullest extent permitted by applicable Law, all proceeds received by Grantee from
the sale or other disposition of any portion of the Property pursuant to this Deed to Secure Debt
shall be applied by Grantee in accordance with the provisions of Section 8.12 of the Credit
Agreement.



(b) If Grantee shall be ordered, in connection with any bankruptcy, insolvency or
reorganization of Grantor, to restore or repay to or for the account of Grantor or its creditors
any amount theretofore received under this Section 6.3, the amount of such restoration or
repayment shall be deemed to be an Obligation so as to place Grantee in the position it would
have been in had such amount never been received by Grantee.



6.4 Additional Security. Subject to the provisions of the Credit Agreement, if Grantee at any time shall have a
security interest securing any Obligation in addition to the lien created hereby on the Property,
Grantee may enforce the terms of the Security Documents or otherwise realize upon the Property, at
its option, either before or concurrently with the exercise of remedies as to such other security
or after a sale is made of such other security, and may apply the proceeds to the Obligations
without affecting the status of or waiving any right to exhaust all or any other security,
including the Property, and without waiving any breach or Event of Default or any right or power
whether exercised under the Financing Documents contained in the Financing Documents or provided
for in respect of any such other security.


 


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6.5 Remedies Cumulative. The rights, powers and remedies of Grantee under this Deed to Secure Debt, or any other
security agreement, or any other Financing Document shall be cumulative and not exclusive of any
other right, power or remedy which Grantee may have against Grantor pursuant to this Deed to Secure
Debt or the other Financing Documents or existing at law or in equity or otherwise. Grantee’s
rights, powers and remedies shall be cumulative and concurrent and may be pursued independently,
singly, successively, together or otherwise, at such time and in such order as Grantee may
determine to the fullest extent permitted by law and the Orders, without impairing or otherwise
affecting the other rights and remedies of Grantee permitted by law, equity or contract or as set
forth herein or in the other Financing Documents. No delay or omission to exercise any remedy,
right or power accruing upon an Event of Default shall impair any such remedy, right or power or
shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from
time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default
shall not be construed to be a waiver of any subsequent Default or Event of Default or to impair
any remedy, right or power consequent thereon. The obtaining of a judgment or decree on any of the
Notes shall not in any manner affect the Lien of this Deed to Secure Debt upon the Property, and
any judgment or decree so obtained shall be secured hereby to the same extent as the Notes are now
secured. In case Grantee shall have proceeded to enforce any right or remedy under this Deed to
Secure Debt by receiver, entry or otherwise, and such proceeding shall have been discontinued or
abandoned for any reason or shall have been determined adversely to Grantee, then and in every such
case, but subject to applicable Law, Grantor and Grantee shall 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 been taken. In the event of any foreclosure sale hereunder, all net proceeds
shall be available for application to the Obligations whether or not such proceeds exceed the value
of the Property for recordation, tax, insurance or other purposes. The only limitation upon the
foregoing agreements as to the exercise of Grantee’s remedies is that there shall be but one full
and complete satisfaction of the Obligations.



6.6 Attorney-in-Fact. Upon the occurrence and during the continuation of an Event of Default, Grantor hereby
appoints Grantee attorney-in-fact of Grantor for the purpose of carrying out the provisions of this
Deed to Secure Debt and taking any action and executing any instrument that Grantee may deem
reasonably necessary or advisable to accomplish the purposes hereof at Grantor’s expense, which
appointment is coupled with an interest and cannot be revoked.



6.7 WAIVER OF GRANTOR’S RIGHTS. BY EXECUTION OF THIS DEED TO SECURE DEBT, GRANTOR EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT OF
GRANTEE TO ACCELERATE THE OBLIGATIONS EVIDENCED BY THE NOTES AND ANY OTHER SECURED OBLIGATIONS AND
THE POWER OF ATTORNEY GIVEN HEREIN TO GRANTEE TO SELL THE PROPERTY BY NONJUDICIAL FORECLOSURE UPON
DEFAULT BY GRANTOR WITHOUT ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE OTHER THAN SUCH NOTICE (IF
ANY) AS IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE PROVISIONS OF THIS DEED TO SECURE DEBT; (B)
WAIVES ANY AND ALL RIGHTS WHICH GRANTOR MAY HAVE UNDER THE CONSTITUTION OF THE UNITED STATES OF
AMERICA (INCLUDING, WITHOUT LIMITATION, THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS
PROVISIONS OF THE CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW,
(1) TO NOTICE AND TO JUDICIAL HEARING PRIOR TO THE EXERCISE BY GRANTEE OF ANY RIGHT OR REMEDY
HEREIN PROVIDED TO GRANTEE, EXCEPT SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO BE GIVEN
UNDER THE PROVISIONS OF THIS DEED TO SECURE DEBT AND EXCEPT FOR OGCA SECTION 44-14161 ET. SEQ. AND
(2) CONCERNING THE APPLICATION, RIGHTS OR BENEFITS OF ANY STATUTE OF LIMITATION OR ANY



 


19









 






 MORATORIUM,
REINSTATEMENT, MARSHALLING, FORBEARANCE, APPRAISEMENT, VALUATION, STAY, EXTENSION, HOMESTEAD,
EXEMPTION OR REDEMPTION LAWS; (C) ACKNOWLEDGES THAT GRANTOR HAS READ THIS DEED TO SECURE DEBT AND
ANY AND ALL QUESTIONS OF GRANTOR REGARDING THE LEGAL EFFECT OF THIS DEED TO SECURE DEBT AND ITS
PROVISIONS HAVE BEEN EXPLAINED FULLY TO GRANTOR, AND GRANTOR HAS CONSULTED WITH COUNSEL OF
GRANTOR’S CHOICE PRIOR TO EXECUTING THIS DEED TO SECURE DEBT; 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 BARGAINED-FOR LOAN TRANSACTION AND THAT THIS DEED TO SECURE DEBT IS VALID AND
ENFORCEABLE BY GRANTEE AGAINST GRANTOR IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS HEREOF.



6.8 Payment of Costs and Expenses. Grantor shall promptly reimburse Grantee and the other Senior Secured Parties for
reasonable costs and expenses (including legal fees and expenses of counsel) incurred under this
Deed to Secure Debt in accordance with the provisions of the Credit Agreement.



6.9 Grantor’s Waivers.



(a) Grantor has read and hereby approves the Credit Agreement, the Intercreditor Agreement,
the other Financing Documents, and all other agreements and documents relating thereto. Grantor
acknowledges that it has been represented by counsel of its choice to review this Deed to Secure
Debt, the Financing Documents, and all other documents relating thereto and said counsel has
explained and Grantor understands the provisions thereof.



(b) To the fullest extent permitted by applicable Law, Grantor hereby expressly waives
diligence, demand, presentment, protest and notice of every kind and nature whatsoever (unless as
otherwise required under this Deed to Secure Debt) and waives any right to require Grantee or any
other Senior Secured Party to enforce any remedy against any guarantor, endorser or other person
whatsoever prior to the exercise of its rights and remedies hereunder or otherwise. To the fullest
extent permitted by applicable Law, Grantor waives any right to require Grantee or any other Senior
Secured Party to: (i) proceed or exhaust any collateral security given or held by Grantee or any
other Senior Secured Party in connection with the Obligations; or (ii) pursue any other remedy in
Grantee’s or any other Senior Secured Party’s power whatsoever.



(c) To the fullest extent permitted by applicable Law, until all Obligations shall have been
paid indefeasibly in full, Grantor: (i) shall not have any right of subrogation to any of the
rights of Grantee or any other Senior Secured Party against any guarantor, maker or endorser; (ii)
waives any right to enforce any remedy which Grantee or other Senior Secured Party now has or may
hereafter have against any other guarantor, maker or endorser; and (iii) waives any benefit of and
any other right to participate in, any collateral security for the Obligations or any guaranty of
the Obligations now or hereafter held by Grantee or any other Senior Secured Party.


 


20









 





(d) Subject to any applicable provisions of the Credit Agreement, Grantor hereby authorizes
and empowers Grantee in its sole discretion, without any notice (except as expressly otherwise
provided herein) or demand and without affecting the lien and charge of this Deed to Secure Debt;
to exercise any right or remedy which Grantee or any other Senior Secured Party may have available
to it, including, but not limited to, foreclosure, or exercise of rights of power of sale without
judicial action as to any collateral security for the obligations, whether real, personal or
intangible property.



(e) To the fullest extent permitted by applicable Law, the Grantor waives all rights and
defenses arising out of an election of remedies by the creditor, even though that election of
remedies, such as nonjudicial foreclosure with respect to security for a guaranteed obligation, has
destroyed the Grantor’s rights of subrogation and reimbursement against the principal by the
operation of the laws and court rules of the State in which the Land is located.



(f) To the fullest extent permitted by Law, Grantor hereby covenants and agrees that it shall
not at any time insist upon or plead, or in any manner whatsoever claim or take any advantage of,
any stay, exemption or extension law or any so-called “moratorium law”
now or at any time hereafter in force, nor claim, take or insist upon any benefit or advantage
of or from any law now or hereafter in force providing for the valuation or appraisement of the
Property, or any part thereof; prior to any sale or sales thereof to be made pursuant to any
provisions herein contained, or to any decree, judgment or order of any court of competent
jurisdiction; or after such sale or sales claim or exercise any rights under any statute now or
hereafter in force to redeem the property so sold, or any part thereof, to the extent such covenant
and agreement is permitted by applicable Law, or relating to the marshaling thereof, upon
foreclosure sale or other enforcement hereof. To the fullest extent permitted by Law, Grantor
hereby expressly waives any and all rights it may have to require that the Property be sold as
separate tracts or units in the event of foreclosure. To the fullest extent permitted by Law,
Grantor hereby expressly waives any and all rights of redemption after sale under any order or
decree of foreclosure of this Deed to Secure Debt, on its own behalf, on behalf of all Persons
claiming or having an interest (direct or indirect) by, through or under Grantor and on behalf of
each and every Person acquiring any interest in or title to the Real Property subsequent to the
date hereof, it being the intent hereof that any and all such rights of redemption of Grantor and
of all other Persons, are and shall be deemed to be hereby waived to the full extent permitted by
applicable Law. To the fullest extent permitted by law, Grantor agrees that it shall not, by
invoking or utilizing any applicable Law or laws or otherwise, hinder, delay or impede the exercise
of any right, power or remedy herein or otherwise granted or delegated to Grantee or any other
Senior Secured Party, but shall suffer and permit the exercise of every such right, power and
remedy as though no such law or laws have been or will have been made or enacted.



ARTICLE VII




MISCELLANEOUS




7.1 Performance at Grantor’s Expense. Except as expressly provided herein or in the other Financing Documents to the contrary, no
portion of the cost and expense of performing or complying with any of the obligations imposed on
Grantor by this Deed to Secure Debt shall be borne by Grantee or any other Senior Secured Party,
and no portion of such cost and expense shall be, in any way or to any extent, credited against the
aggregate amounts payable by Grantor pursuant to the Credit Agreement or any other Financing
Document.


 


21









 





7.2 Grantee’s Right to Perform the Obligations. If Grantor shall fail, refuse or neglect to make any payment or to perform any act required
of it by this Deed to Secure Debt, or any other Financing Document, then at any time after the
occurrence of any Event of Default or as otherwise expressly permitted by the terms of the Credit
Agreement, the Intercreditor Agreement or any other Financing Document, without waiving or
releasing any other right, remedy or recourse Grantee may have because of same, Grantee may (but
shall not be obligated to) make such payment or perform such act for the account of and at the
expense of Grantor. All sums paid by Grantee pursuant to this Section 7.2 and all other
sums expended by Grantee, together with interest thereon from the date of such payment or
expenditure, shall constitute additions to the Obligations, and shall be secured by this
Deed to Secure Debt, and Grantor covenants and agrees to pay them to the order of Grantee upon
demand.



7.3 Survival of Obligations. Except as otherwise provided in the Credit Agreement, all and every portion of the
Obligations shall survive the execution and delivery o f this Deed to Secure Debt and the other
Financing Documents, the foreclosure or other exercise of remedies hereunder and the consummation
of the transactions called for therein and herein until the Obligations shall be satisfied in full.
This Deed to Secure Debt secures, and until the Obligations shall be paid and satisfied in full,
shall secure the entire amount of the Obligations. The total amount of the indebtedness secured by
this Deed to Secure Debt may increase or decrease from time to time.



7.4 Notices. Notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed or sent by facsimile as follows:



	 	 	 	 	 	 	 
	 

	 	(a)
	 	if to Grantor,	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	Southwest Georgia Ethanol, LLC
	 

	 	 	 	Mailing Address:
	 	P.O. Box 386 
	 

	 	 	 	 	 	Camilla, GA 31730 
	 
	 	 	 	 	 	 
	 

	 	 	 	Physical Address:
	 	4615 Back Nine Road
	 

	 	 	 	 	 	Pelham, GA 31779 
	 
	 	 	 	 	 	 
	 

	 	 	 	Attention:
	 	Larry Kamp, Chief Financial Officer
	 

	 	 	 	Telephone:
	 	(229) 522-2822 
	 

	 	 	 	Facsimile:
	 	(229) 522-2824 
	 

	 	 	 	E-mail:
	 	larry@firstunitedethanol.com
	 
	 	 	 	 	 	 
	 

	 	(b)
	 	if to Grantee,	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	WestLB AG, New York Branch
	 	 	 	 	7 World Trade Center, 250 Greenwich Street
	 

	 	 	 	New York, NY 10007	 	 
	 

	 	 	 	Attention:
	 	Andrea Bailey
	 

	 	 	 	Telephone:
	 	212-597-1158 
	 

	 	 	 	Facsimile:
	 	212-302-7964 
	 

	 	 	 	E-mail:
	 	NYC_Agency_Services@WestLB.com





 


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All notices and other communications given to any party hereto in accordance with the provisions of
this Deed to Secure Debt shall be deemed to have been given on the date of receipt if delivered by
hand or overnight courier service or sent by facsimile, or on the date five (5) Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 7.4 or in accordance with
the latest unrevoked direction from such party given in accordance with this Section 7.4.



7.5 Delay not a Waiver. Neither any failure nor any delay on the part of Grantee in insisting upon strict
performance of any term, condition, covenant or agreement, or exercising any right, power, remedy
or privilege hereunder, or under the Notes, or under any other Financing Document, or any other
instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a
single or partial exercise thereof preclude any other future exercise, or the exercise of any other
right, power, remedy or privilege. In particular, and not by way of limitation, by accepting
payment after the due date of any amount payable under this Deed to Secure Debt, the Notes, or any
other Financing Document, Grantee shall not be deemed to have waived any right either to require
prompt payment when due of all other amounts due under this Deed to Secure Debt, the Notes, or the
other Financing Documents, or to declare a default for failure to effect prompt payment of any such
other amount.



7.6 Covenants Running with the Land. The Obligations and all obligations hereunder are intended by the parties to be, and shall
be construed as, covenants running with the Real Property until such Real Property has been
released from the Lien of this Deed to Secure Debt.



7.7 Severability. If any provision of this Deed to Secure Debt or the application thereof to any Person or
circumstance, for any reason and to any extent, becomes invalid or unenforceable, then neither the
remainder of this Deed to Secure Debt nor the application of such provision to other Persons or
circumstances nor the other instruments referred to hereinabove shall be affected thereby, but
rather shall be enforced to the greatest extent permitted by applicable Law.



7.8 Entire Agreement and Modification. This Deed to Secure Debt and the other Financing Documents contain the entire agreement of
the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and
all prior agreements among or between such parties, whether oral or written, are superseded by the
terms of this Deed to Secure Debt and the other Financing Documents.



7.9 Governing Law. This Deed to Secure Debt shall be governed, construed, applied and enforced in accordance
with the laws of the State of Georgia and applicable laws of the United States of America.


 


23









 





7.10 Limitation on Grantee’s Responsibility. No provision of this Deed to Secure Debt shall operate to place any obligation or liability
for the control, care, management or repair of the Property upon Grantee or any other Senior
Secured Party, nor shall it operate to make Grantee or any other Senior Secured Party responsible
or liable for any waste committed on the Property by the tenants or any other Person, or for any
dangerous or defective condition of the Property, or for any negligence of any other
Person in the management, upkeep, repair or control of the Property resulting in loss or
injury or death to any tenant, licensee, employee or stranger. Nothing herein contained shall be
construed as constituting Grantee or any other Senior Secured Party “Grantee in possession.”



7.11 Rights of the Collateral Agent. The Collateral Agent shall be entitled to the rights, protections, immunities and
indemnities set forth in the Credit Agreement, the Intercreditor Agreement and the other Financing
Documents as if specifically set forth herein. With respect to the duties, obligations and rights
of the Collateral Agent, if any conflict between the terms of this Agreement and the terms of the
Credit Agreement arises, the terms of the Credit Agreement shall govern and control.



7.12 No Liability for Clean up of Hazardous Materials. In the event the Collateral Agent is required to acquire title to an asset for any reason,
or take any managerial action of any kind in regard thereto, in order to carry out any duty or
obligation for the benefit of another, which in the Collateral Agent’s sole discretion may cause
the Collateral Agent to be considered an “owner or operator” under any Environmental Laws or
otherwise cause the Collateral Agent to incur, or be exposed to, any Environmental Liabilities or
any liability under any other federal, state or local law, the Collateral Agent reserves the right,
instead of taking such action, either to resign as Collateral Agent or to arrange for the transfer
of the title or control of the asset to a court appointed receiver. The Collateral Agent will not
be liable to any Person for any Environmental Liabilities or any environmental claims or
contribution actions under any federal, state or local law, rule or regulation by reason of the
Collateral Agent’s action and conduct as authorized, empowered or directed hereunder or relating to
any kind of discharge or release or threatened discharge or release of any Hazardous Materials into
the environment.



7.13 Headings. The Article and/or Section headings and the Table of Contents herein are included for
convenience of reference only and shall not constitute a part of this Deed to Secure Debt for any
other purpose.



7.14 Marshalling. Notwithstanding anything herein to the contrary, Grantor will not: (a) at any time insist
upon, or plead, or in any manner whatever claim or take any benefit or advantage of any stay or
extension or moratorium law, any exemption from execution or sale of the Property or any part
thereof whenever or wherever enacted, which may affect the covenants and terms of performance of
this Deed to Secure Debt; (b) claim, take or insist upon any benefit or advantage of any law now or
hereafter in force providing for the valuation or appraisal of the Property, or any part thereof,
prior to any sale or sales thereof which may be made pursuant to any provision herein, or pursuant
to the decree, judgment or order of any court of competent jurisdiction; or (c) after any such sale
or sales, claim or exercise any right under any statute heretofore or hereafter enacted to
reinstate the Deed to Secure Debt or to redeem the property so sold or any part thereof.
Additionally, Grantor hereby expressly waives all benefit or advantage of any such law
or laws. Grantor, for itself and all who may claim under it, waives, to the extent that it
lawfully may, all right to have the Property marshaled upon any foreclosure hereof. Grantee shall
have the right to determine the order in which any or all portions of the Obligations arc satisfied
from the proceeds realized upon the exercise of the remedies provided herein. Grantor, any party
who consents to this Deed to Secure Debt and any party who now or hereafter acquires a lien or
security interest in any of the Property and who has actual or constructive notice hereof hereby
waives any and all right to require the marshalling of assets in connection with the exercise of
any of the remedies permitted by applicable Law or provided herein.


 


24









 





7.15 Waiver of Jury Trial and Consent to Jurisdiction. GRANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS DEED TO SECURE DEBT, ANY OTHER FINANCING DOCUMENT, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). GRANTOR (i)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS DEED TO SECURE DEBT AND THE OTHER FINANCING DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.15. In the event of litigation, this
Deed to Secure Debt may be filed as a written consent to a trial by the court. Grantor hereby
irrevocably submits to the jurisdiction of any court of competent jurisdiction located in the state
in which any portion of the Property is located in connection with any proceeding arising out of or
relating to this Deed to Secure Debt involving such portion of the Property.



7.16 Maximum Indebtedness and Future Advances. This Deed to Secure Debt shall secure not only existing Obligations, but also such future
advances, whether such advances are obligatory or are to be made at the option of Grantee or the
Senior Secured Parties or otherwise related to or in connection with the Credit Agreement, or the
other Financing Documents, as are made by Grantee and/or the Senior Secured Parties to Grantor to
the same extent as if such future advances were made on the date of the execution of this Deed to
Secure Debt, including (a) any and all additional advances made by Grantee or the Senior Secured
Parties to protect or preserve the Property or the Lien hereof on the Property, or to pay taxes, to
pay premiums on insurance on the Property (whether or not the original Grantor remains the owner of
the Property at the time of such advances and whether or not the original Grantee remains the
Collateral Agent); (b) any and all expenses incident to the collection of the Obligations and the
foreclosure hereof by action in any court or by exercise of the power of sale herein contained; (c)
any and all amounts now owing or which may hereafter be owing by Grantor to Grantee, and/or the
Senior Secured Parties pursuant to the Financing Documents, however and whenever incurred or
evidenced, whether direct or indirect, absolute or contingent, due or to become due, together with
any and all renewal or renewals and extension or extensions of the Obligations; and (d) the full
and prompt payment and performance of any and all
obligations or covenants of Grantor to Grantee and/or the Senior Secured Parties under the
terms of any other agreements, assignments or other instruments now or hereafter evidencing,
securing or otherwise relating to the Obligations, including the Financing Documents.


 


25









 





7.17 Lien Absolute; Multiple Collateral Transaction. Grantor acknowledges that this Deed to Secure Debt, the other Financing Documents, and
those documents required by the Financing Documents together secure the Obligations. Grantor agrees
that the Lien of this Deed to Secure Debt and all Obligations shall be absolute and unconditional
and shall not in any manner be affected or impaired by any lack of validity or enforceability of
the Credit Agreement, the Intercreditor Agreement or any other Financing Document, any agreement
with respect to any of the Obligations or any other agreement or instrument relating to any of the
foregoing, and the lien hereof shall not be impaired by any acceptance by Grantee of any security
for or guarantees of any of the Obligations, or by any failure, neglect or omission on the part of
Grantee to realize upon or protect any of the Obligations or any collateral security therefor,
including the Financing Documents, or due to any other circumstance which might otherwise
constitute a defense available to, or a discharge of, Grantor in respect of the Obligations or this
Deed to Secure Debt (other than the indefeasible payment in full of all the Obligations). The lien
hereof shall not in any manner be impaired or affected by any change in the time, manner or place
of payment of, or in any other term of, all or any of the Obligations or by any release (except as
to the property released), sale, pledge, surrender, compromise, settlement, nonperfection, renewal,
extension, indulgence, alteration, exchange, modification or disposition of any of the Obligations
or of any of the collateral security therefor, or any amendment or waiver of or any consent to any
departure from the Credit Agreement, the Intercreditor Agreement or any other Financing Document or
of any guaranty thereof, if any, and Grantee may, in Grantee’s discretion, foreclose, exercise any
power of sale, or exercise any other remedy available under any or all of the Financing Documents
without first exercising or enforcing any other rights and remedies hereunder. Such exercise of
rights and remedies under any or all of the Financing Documents shall not in any manner impair the
Obligations or the Lien of this Deed to Secure Debt, and any exercise of any rights or remedies
hereunder shall not impair the Lien of any of the other Financing Documents or any rights and
remedies of any Senior Secured Party thereunder. Grantor specifically consents and agrees that
Grantee may exercise any rights and remedies hereunder and under the other Financing Documents
separately or concurrently and in any order that Grantee may deem appropriate.



7.18 Cancellation of Deed to Secure Debt. Upon written request of Grantor and upon payment in full and performance of all of the
Obligations, and upon payment in full to Grantee of its fees, costs and expenses incurred or to be
incurred thereby, this Deed to Secure Debt shall be cancelled and surrendered. Concurrently with
such cancellation or surrender, Grantee, on the written request and at the expense of Grantor, will
execute and/or deliver such instruments of conveyance and release (including appropriate UCC-3
terminations) prepared by Grantor and as may reasonably be requested by Grantor to evidence such
release and satisfaction.



7.19 Renewal or Extension of Notes; Substitute Notes. This Deed to Secure Debt and all other instruments evidencing or securing the Notes shall
likewise secure any extension, modification, renewal, substitution or replacement of the Notes and
any note or notes which may be executed and delivered in substitution or replacement for the Notes.
The lien of this Deed to Secure Debt shall in no manner be affected by any such extension,
modification, renewal, substitution or replacement.


 


26









 





7.20 Conflicts. In the event of any conflict or inconsistency between the terms of this Deed to Secure Debt
and those of the Credit Agreement, the terms of the Credit Agreement shall control. Grantor hereby
acknowledges that it was represented by counsel in connection with the negotiation and drafting of
this Deed to Secure Debt and that this Deed to Secure Debt and the other Financing Documents shall
not be subject to the principle of construing their meaning against the party which drafted the
same.



7.21 Assumption Not a Novation. Grantee’s acceptance of an assumption of the obligations of this Deed to Secure Debt and
the Notes, and the release of Grantor hereof, shall not constitute a novation.



7.22 Acknowledgment of Receipt of Copies of Debt Instrument. Grantor hereby acknowledges the receipt of a copy of this Deed to Secure Debt and the
Credit Agreement, together with a copy of each other agreement, document or instrument executed in
connection with this Deed to Secure Debt.



[Rest of Page Intentionally Left Blank; Signature Page to Follow]



 


27









 





IN WITNESS WHEREOF, Grantor has caused this Deed to Secure Debt to be signed by Grantor’s duly
authorized representative as of the day and year first above written.



Signed, sealed, and delivered in the presence of:



	 	 	 	 	 	 	 
	WITNESSES:	 	GRANTOR:	 	 
	 
	 	 	 	 	 	 
	 	 	SOUTHWEST GEORGIA ETHANOL LLC	 	 
	 
	 	 	 	 	 	 
	/s/ Murray Campbell
 



Unofficial Witness:

	 	By:
	 	/s/ Lawrence A. Kamp
 

Name: Lawrence A. Kamp

Title:   Chief Financial Officer
	 	 
	 
	 	 	 	 	 	 
	/s/ Alicia Shirah
 



Notary Public

	 	 	 	 	 	 






Notary Public for Mitchell County

Date: 2/4/11

My commission expires: 6/24/11



(SEAL)




Alicia H. Shirah

Georgia Notary Public — Mitchell County

Expires June 24, 2011



 


28









 





Grantee, in its capacity as Secured Party, has executed this Deed to Secure Debt for the
purpose of becoming a signatory to the security agreement set forth herein.



	 	 	 	 	 	 	 
	WITNESSES:	 	GRANTEE/SECURED PARTY:	 	 
	 
	 	 	 	 	 	 
	 	 	WESTLB AG, NEW YORK BRANCH	 	 
	 
	 	 	 	 	 	 
	/s/ John Magalong
 



Unofficial Witness:

	 	By:
	 	/s/ Dominick D’Ascoli
 

Name: Dominick D’Ascoli

Title:   Director
	 	 
	 
	 	 	 	 	 	 
	/s/ Thomas Brensic
 



Witness:

	 	By:
	 	/s/ Christian Grane
 

Name: Christian Grane

Title:   Executive Director
	 	 
	 
	 	 	 	 	 	 
	/s/ Walter S. Lau
 



Notary Public

	 	 	 	 	 	 






Notary Public for State of New York

Date: 02/04/2011

My commission expires:



(SEAL)




WALTER S> LAU

NOTARY PUBLIC State of New York

No. 01LA6042821

Qualified in New York County

Commission Expires June 5, 2014



 


29









 





EXHIBIT A




LAND




Tract 1: All that tract or parcel of land situated, lying, and being in Land Lot No. 311
in the 10th Land District of Mitchell County, Georgia, containing 130.25 acres, more or less, and
being more particularly described as follows:



Begin at a point which marks the intersection of the northern edge of the right of way of Fairway
Road (R/W varies) with the western edge of the right of way of Back Nine Road (40’ maintained R/W),
which point is marked by an iron pin set, and with this point as the Point of Beginning, go thence
along the northern edge of the right of way of said Fairway Road a chord direction of south 86
degree S 31 minutes 59 seconds west a chord distance of 32.73 feet (an arc distance of 32.75 feet)
to a point, from thence continue along the northern edge of the right of way of said Fairway Road
north 89 degrees 51 minutes 31 seconds west a distance of 1872.49 feet to a point, from thence
continue along the northern edge of the right of way of said Fairway Road north 88 degrees 32
minutes 45 seconds west a distance of 333.44 feet to a point marked by an iron pin found located on
the eastern edge of the right of way of the Georgia & Florida Railnet (150’ R/W), from thence go
along the eastern edge of the right of way of the said Georgia & Florida Railnet a chord direction
of north 19 degrees 08 minutes 25 seconds east a chord distance of 141.77 feet (an arc distance of
141.78 feet) to a point, from thence continue along the eastern edge of the right of way of the
said Georgia & Florida Railnet north 20 degrees 35 minutes 55 seconds east a distance of 1504.56
feet to a point, from thence continue along the eastern edge of the right of way of the said
Georgia & Florida Railnet a chord direction of north 03 degrees 47 minutes 10 seconds west a chord
distance of 2415.96 feet (an arc distance of 2490.46 feet) to a point marked by an iron pin found,
from thence go north 84 degrees 40 minutes 21 seconds east a distance of 156.20 feet to a point
marked by an iron pin found, from thence go south 25 degrees 34 minutes 16 seconds east a distance
of 748.42 feet to a point marked by an iron pin set, from thence go south 89 degrees 48 minutes 54
seconds east a distance of 466.02 feet to a point marked by an iron pin set, from thence go south
70 degrees 48 minutes 03 seconds east a distance of 940.82 feet to a point marked by an iron pin
set, which point lies on the western edge of the right of way of said Back Nine Road, from thence
go along the western edge of the right of way of said Back Nine Road south 02 degrees 10 minutes 00
seconds east a distance of 414.26 feet to a point, from thence continue along the western edge of
the right of way of said Back Nine Road a chord direction of south 01 degree 16 minutes 52 seconds
west a chord distance of 130.26 feet (an arc distance of 130.34 feet) to a point, from thence
continue along the western edge of the right of way of said Back Nine Road south 04 degrees 43
minutes 44 seconds west a distance of 302.32 feet to a point, from thence continue along the
western edge of the right of way of said Back Nine Road south 01 degree 46 minutes 36 seconds west
a distance of 188.65 feet to a point, from thence continue along the western edge of the right of
way of said Back Nine Road south 00 degrees 50 minutes 41 seconds west a distance of 389.17 feet to
a point, from thence continue along the western edge of the right of way of said Back Nine Road
south 00 degrees 19 minutes 39 seconds west a distance of 486.22 feet to a point, from thence
continue along the western edge of the right of way of said Back Nine Road south 00 degrees 21
minutes 05 seconds east a distance of 579.21 feet to a point, from thence continue along the
western edge of the right of way of said Back Nine Road south 00 degrees 25 minutes 59 seconds east
a distance of 229.62 feet to a point, from thence continue along the western edge of the right of
way of said Back Nine Road south 02 degrees 10 minutes 05 seconds east a distance of 274.59 feet to
a point marked by an iron pin set, the Point of Beginning.


 


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Said tract of land is more particularly described as Tract 1 on that certain Plat of Survey
prepared by Larry W. Grogan, Georgia Registered Land Surveyor No. 1649, entitled “ALTA/ASCM LAND
TITLE SURVEY FOR SOUTHWEST GEORGIA ETHANOL, LLC, ET. AL.”, Survey Date: November 9, 2007, Plat
Date: November 13, 2007, copy of which is recorded in Plat Book 32 page 175, in the Office of the
Clerk of the Superior Court of Mitchell County, Georgia, to which reference is hereby particularly
made.



Tract 2: All that tract or parcel of land situated, lying, and being in Land Lot No. 290 of the
10th Land District of Mitchell County, Georgia, containing 56.76 acres, more or less,
and being more particularly described as follows:



Begin at the point of intersection of the northern edge of the right of way of Industrial Park
Connector Road (80’ R/W) with the eastern edge of the right of way of Back Nine Road (40’
maintained R/W) which point is marked by an iron pin set, and with this point as the Point of
Beginning, go thence along the eastern edge of the right of way of said Back Nine Road north 00
degrees 25 minutes 59 seconds west a distance of 177.24 feet to a point, from thence continue along
the eastern edge of the right of way of said Back Nine Road north 00 degrees 21 minutes 05 seconds
west a distance of 578.94 feet to a point, from thence continue along the eastern edge of the right
of way of said Back Nine Road north 00 degrees 19 minutes 39 seconds east a distance of 485.80 feet
to a point, from thence continue along the eastern edge of the right of way of said Back Nine Road
north 00 degrees 50 minutes 41 seconds east a distance of 388.66 feet to a point, from thence
continue along the eastern edge of the right of way of said Back Nine Road north 01 degree 46
minutes 36 seconds east a distance of 187.30 feet to a point, from thence continue along the
eastern edge of the right of way of said Back Nine Road north 04 degrees 43 minutes 44 seconds east
a distance of 301.29 feet to a point, from thence continue along the eastern edge of the right of
way of said Back Nine Road a chord direction of north 01 degree 16 minutes 52 seconds east a chord
distance of 135.09 feet (an arc distance of 135.17 feet) to a point, from thence continue along the
eastern edge of the right of way of said Back Nine Road north 02 degrees 10 minutes 00 seconds west
a distance of 194.33 feet to a point marked by an iron pin found, from thence go north 88 degrees
38 minutes 40 seconds east a distance of 858.22 feet to a point marked by an iron pin found, from
thence go south 00 degrees 32 minutes 47 seconds west a distance of 1726.41 feet to a point marked
by an axle found, from thence go south 01 degree 47 minutes 50 seconds west a distance of 800.67
feet to a point marked by an iron pin found, from thence go south 88 degrees 44 minutes 54 seconds
east a distance of 459.58 feet to a point marked by an iron pin found, from thence go south 33
degrees 19 minutes 38 seconds east a distance of 146.88 feet to a point marked by an iron pin
found, which point lies on the northern edge of the right of way of said Industrial Park Connector
Road, from thence go along the northern edge of the right of way of said Industrial Park Connector
Road a chord direction of south 74 degrees 56 minutes 00 seconds west a chord distance of 587.13
feet (an arc distance of 594.91 feet) to a point, from thence continue along the northern edge of
the right of way of said Industrial Park Connector Road north 88 degrees 59 minutes 19 seconds west
a distance of 237.39 feet to a point, from thence continue along the northern edge of the right of
way of said Industrial Park Connector Road a chord direction of north 66 degrees 59 minutes 39
seconds west a chord distance of 456.91 feet (an arc distance of 468.33 feet) to a point, from
thence
continue along the northern edge of the right of way of said Industrial Park Connector Road north
45 degrees 00 minutes 00 seconds west a distance of 228.59 feet to a point marked by an iron pin
set, the Point of Beginning.


 


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LESS AND EXCEPT all that part of Tract 2, aforesaid, lying within the boundaries of the right of
way of Hog Haw Road as shown on the plat of survey aforesaid.



Said tract of land is more particularly described as Tract 2 on that certain Plat of Survey
prepared by Larry W. Grogan, Georgia Registered Land Surveyor No. 1649, entitled “ALTA/ACSM LAND
TITLE SURVEY FOR SOUTHWEST GEORGIA ETHANOL, LLC, ET. AL.”, Survey Date: November 9, 2007, Plat
Date: November 13, 2007, copy of which is recorded in Plat Book 32 page 175, in the Office of the
Clerk of the Superior Court of Mitchell County, Georgia, to which reference is hereby particularly
made.



Tract 3:




All that tract or parcel of land situated, lying, and being in Land Lot No. 290 in the 10th Land
District of Mitchell County, Georgia, containing 0.31 acres, more or less, and being more
particularly described as follows:



Begin at a point which marks the intersection of the northern edge of the right of way of Fairway
Road (R/W varies) with the eastern edge of the right of way of Back Nine Road (40’ maintained R/W),
which point is marked by an iron pin set, and with this point as the Point of Beginning, go thence
along the eastern edge of the right of way of said Back Nine Road north 02 degrees 10 minutes 05
seconds west a distance of 203.10 feet to a point marked by an iron pin set on the southwestern
edge of the right of way of Industrial Park Connector Road (80’ R/W), from thence go along the
southwestern edge of the right of way of said Industrial Park Connector Road south 45 degrees 00
minutes 00 seconds east a distance of 144.60 feet to a point; from thence continue along the
southwestern edge of the right of way of said Industrial Park Connector Road a chord direction of
south 46 degrees 31 minutes 08 seconds east a chord distance of 36.58 feet (an arc distance of
36.58 feet) to a point marked by an iron pin set on the northern edge of the right of way of said
Fairway Road; from thence go along the northern edge of the right of way of said. Fairway Road a
chord direction of south 58 degrees 02 minutes 56 seconds west a chord distance of 142.73 feet (an
arc distance of 144.59 feet) to a point marked by an iron pin set, the Point of Beginning.




 


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