Exhibit 10.21.2
This instrument prepared by:
Xxxx Xxxxx Xxxxxx, Esq.
Walston, Wells, Xxxxxxxx & Bains, LLP
000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
000-000-0000
STATE OF GEORGIA )
XXXXXX COUNTY )
DEED TO SECURE DEBT, SECURITY AGREEMENT
AND ASSIGNMENT OF RENTS AND LEASES
THIS DEED TO SECURE DEBT, security agreement and assignment of
rents and leases (the "security deed") is made and entered into as of this 31st
day of August, 2001, by and between Xxxxxxx Properties Residential, L.P., a
Georgia limited partnership (the "Grantor"), whose address is 0000 Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, in favor of AmSouth Bank, an Alabama state
banking corporation (the "Bank"), whose address is X.X. Xxx 00000, Xxxxxxxxxx,
Xxxxxxx 00000, Attention: Commercial Real Estate Loan Department.
Recitals
A. The Grantor is justly indebted to the Bank in the principal
sum of $2,700,000, as evidenced by a promissory note executed by the Grantor,
which note is payable in full on February 3, 2002, and bears interest as
provided therein (the "Note").
B. To secure the Note, and to induce the Bank to extend credit
to the Grantor on the strength of the security provided by this security deed
and convey the property described herein to the Bank as hereinafter set forth,
the Grantor has agreed to execute and deliver this security deed to the Bank.
Agreement
NOW, THEREFORE, in consideration of the premises, and to
secure the payment of the following (hereinafter collectively referred to as the
"Debt"):
(1) the payment of the debt evidenced by the Note, and
interest thereon and any and every extension, renewal and modification
thereof, or of any part thereof, and all interest on all such
extensions, renewals and modifications;
(2) all other indebtedness, obligations and liabilities of the
Grantor to the Bank of every kind and description whatsoever, arising
directly between the Grantor and the Bank or acquired outright, as a
participation or as collateral security from another by the Bank,
direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter incurred, contracted or arising, joint or
several, liquidated or unliquidated, regardless of how they arise or by
what agreement or instrument they may be evidenced or whether they are
evidenced by agreement or instrument, and whether incurred as maker,
endorser, surety, guarantor, member of a partnership, syndicate, joint
venture, association or other group, or otherwise, and any and all
extensions, renewals and modifications of any of the same; and
(3) the compliance with all of the stipulations,
covenants, agreements, representations, warranties and conditions
contained in this security deed;
the Grantor does hereby grant, bargain, sell, alien, convey and confirm unto the
Bank, its successors and assigns, the property and interests in property
described in the following Granting Clauses A through E, both inclusive, and
does grant to the Bank a security interest in said property and interests in
property:
A. The real estate described on Exhibit A attached hereto
and made a part hereof (the "Real Estate") and all
improvements, structures, buildings and fixtures now or
hereafter situated thereon (the "Improvements").
B. All permits, easements, licenses, rights-of-way, contracts,
privileges, immunities, tenements and hereditaments now or
hereafter pertaining to or affecting the Real Estate or the
Improvements.
C. (i) All leases, written or oral, and all agreements for use or
occupancy of any portion of the Real Estate or the
Improvements with respect to which the Grantor is the lessor,
including but not limited to any existing leases, any and all
extensions and renewals of said leases and agreements and any
and all further leases or agreements, now existing or
hereafter made, including subleases thereunder, upon or
covering the use or occupancy of all or any part of the Real
Estate or the Improvements (all such leases, subleases,
agreements and tenancies heretofore mentioned, being
hereinafter collectively referred to as the "Leases");
(ii) any and all guaranties of the lessee's and
any sublessee's performance under any of the Leases;
(iii) the immediate and continuing right to collect
and receive all of the rents, income, receipts, revenues,
issues and profits now due or which may become due or to which
the Grantor may now or shall hereafter (including during the
period of redemption, if any) become entitled or may demand or
claim, arising or issuing from or out of the Leases or from or
out of the Real Estate or any of the Improvements, or any part
thereof, including, but not limited to, minimum rents,
additional rents,
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percentage rents, common area maintenance charges, parking
charges, tax and insurance premium contributions, and
liquidated damages following default, the premium payable by
any lessee upon the exercise of any cancellation privilege
provided for in any of the Leases, and all proceeds payable
under any policy of insurance covering loss of rents resulting
from untenantability caused by destruction or damage to the
Real Estate or the Improvements, together with any and all
rights and claims of any kind that the Grantor may have
against any such lessee under the Leases or against any
subtenants or occupants of the Real Estate or any of the
Improvements, all such moneys, rights and claims in this
paragraph described being hereinafter referred to as the
"Rents"; provided, however, so long as no Event of Default has
occurred, the Grantor shall have the right under a license
granted hereby to collect, receive and retain the Rents (but
not prior to accrual thereof); and
(iv) any award, dividend or other payment made
hereafter to the Grantor in any court procedure involving any
of the lessees under the Leases in any bankruptcy, insolvency
or reorganization proceedings in any state or federal court
and any and all payments made by lessees in lieu of rent. The
Grantor hereby appoints the Bank as the Grantor's irrevocable
attorney in fact to appear in any action and/or to collect any
such award, dividend or other payment.
D. All building materials, equipment, fixtures, tools, apparatus
and fittings of every kind or character now owned or hereafter
acquired by the Grantor for the purpose of, or used or useful
in connection with, the Improvements, wherever the same may be
located, including, without limitation, all lumber and lumber
products, bricks, stones, building blocks, sand, cement,
roofing materials, paint, doors, windows, hardware, nails,
wires, wiring, engines, boilers, furnaces, tanks, motors,
generators, switchboards, elevators, escalators, plumbing,
plumbing fixtures, air-conditioning and heating equipment and
appliances, electrical and gas equipment and appliances,
stoves, refrigerators, dishwashers, hot water heaters, garbage
disposers, trash compactors, other appliances, carpets, rugs,
window treatments, lighting, fixtures, pipes, piping,
decorative fixtures, and all other building materials,
equipment and fixtures of every kind and character used or
useful in connection with the Improvements.
E. Any and all other real or personal property of every kind and
nature from time to time hereafter by delivery or by writing
of any kind conveyed, mortgaged, pledged, assigned or
transferred to the Bank, or in which the Bank is granted a
security interest to secure the Note, as and for additional
security hereunder by the Grantor, or by anyone on behalf of,
or with the written consent of, the Grantor.
(All of the property and interests in property described in the foregoing
Granting Clauses A through E, both inclusive, are herein sometimes collectively
called the "Property". The personal property described in Granting Clause D and
all other personal property covered by this security deed are herein sometimes
collectively called the "Personal Property".)
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SUBJECT, HOWEVER, to the easements, rights-of-way and other
exceptions described on Exhibit B hereto ("Permitted Exceptions").
To have and to hold the Property with all and singular the
rights, members and appurtenances thereto appertaining, to the only proper use,
benefit, and behalf of the Bank, its successors and assigns forever in fee
simple.
THIS INSTRUMENT is a deed passing the title to the Property to
the Bank and is made under the laws of the State of Georgia relating to deeds to
secure debt, and is not a mortgage, and is given to secure the payment of the
Debt, as described above, which includes, without limitation: (a) the debt
evidenced by the Note dated August 31, 2001, made by Grantor to the order of
the Bank in the principal amount of $2,700,000, with the final payment being due
on or before February 3, 2002, together with any and all renewals,
modifications, consolidations, replacements and extensions thereof; and any and
all additional advances made or costs or expenses incurred by the Bank to
protect or preserve the Property or the security interest created hereby, or for
taxes, assessments or insurance premiums as hereinafter provided, or for
performance of any Grantor's obligations hereunder, or for any other purpose
provided herein (whether or not the original Grantor remains the owner of the
Property at the time such advances are made or costs or expenses incurred).
The names of the "Debtor" and the "Secured Party" (which are
Grantor and Bank, respectively), the address of the "Secured Party" from which
information concerning the security interests granted herein may be obtained,
and the address of "Debtor" are as set forth on the first page of this security
deed, and a statement indicating the types, or describing the items, of
collateral is set forth hereunder.
1. Loan Agreement. The Debt is subject to, and governed by, the
terms of a Loan Agreement between the Grantor and the Bank (the "Loan
Agreement"), reference to which is hereby made for all purposes.
2. Warranties of Title. The Grantor covenants with the Bank
that the Grantor is lawfully seized in fee simple of the Real Estate and is the
lawful owner of, and has good title to, the Personal Property, Improvements and
other Property and has a good right to sell and convey the Property as
aforesaid; that the Property is free of all encumbrances, unless otherwise
provided hereinbefore; and that the Grantor will warrant and forever defend the
title to the Property unto the Bank against the lawful claims of all persons.
3. Maintenance of Lien Priority. The Grantor shall take all
steps necessary to preserve and protect the validity and priority of the liens
on, security interests in, and assignment of, the Property created hereby. The
Grantor shall execute, acknowledge and deliver such additional instruments as
the Bank may deem necessary in order to preserve, protect, continue, extend or
maintain the liens, security interests and assignments created hereby as first
liens on, security interests in, and assignments of, the Property, except as
otherwise permitted under the terms of this security deed. All costs and
expenses incurred in connection with the protection, preservation,
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continuation, extension or maintaining of the liens, security interests and
assignments hereby created shall be paid by the Grantor.
4. Representations and Warranties Related to Rents and Leases.
----------------------------------------------------------
(a) The Grantor has good title to the Rents and Leases hereby
assigned and good right to assign the same, and no other person, corporation or
entity has any right, title or interest therein.
(b) The Grantor has not previously sold, assigned,
transferred, mortgaged or pledged the Leases or the Rents, whether now due or
hereafter to become due.
(c) No Rents due for any period subsequent to the month next
succeeding the date of this security deed have been collected, and no payment of
any of the Rents has otherwise been anticipated, waived, released, discounted,
set-off or otherwise discharged or compromised.
(d) The Grantor has not received any funds or deposits from
any lessee in excess of one month's rent for which credit has not already been
made on account of accrued rents.
5. Covenants To Pay Liens and Maintain Insurance. For the
purpose of further securing the payment of the Debt, the Grantor agrees to: (a)
pay all taxes, assessments, and other liens taking priority over this security
deed (hereinafter jointly called "Liens"), and if default is made in the payment
of the Liens, or any part thereof, the Bank, at its option, may pay the same;
(b) keep the Property continuously insured, in such manner and with such
companies as may be satisfactory to the Bank, against loss by flood (if the
Property is located in a flood-prone area), fire, windstorm, vandalism and
malicious mischief and other perils usually covered by a fire insurance policy
with standard extended coverage endorsement, with loss, if any, payable
(pursuant to loss payable clauses in form and content satisfactory to the Bank)
to the Bank, as its interests may appear. Such insurance shall be in an amount
at least equal to the full insurable value of the Personal Property and
Improvements unless the Bank agrees in writing that such insurance may be in a
lesser amount. The original insurance policy and all replacements therefor,
shall be delivered to, and held by, the Bank until the Debt is paid in full. The
original insurance policy and all replacements therefor must provide that they
may not be canceled without the insurer's giving at least thirty (30) days'
prior written notice of such cancellation to the Bank. So long as no
Improvements are located on the Real Estate, fire and casualty insurance are
waived.
6. Assignment of Insurance Policies, etc. The Grantor hereby
assigns and pledges to the Bank, as further security for the payment of the
Debt, each and every policy of hazard insurance now or hereafter in effect which
insures the Property, or any part thereof (including without limitation the
Personal Property and Improvements, or any part thereof), together with all
right, title and interest of the Grantor in and to each and every such policy,
including, but not limited to, all the Grantor's right, title and interest in
and to any premiums paid on each such policy, including all rights to return
premiums. If the Grantor fails to keep the Property insured as specified above
then, at the election of the Bank and without notice to any person, the Bank
may, but shall not be obligated to, insure the
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Property for its full insurable value (or for such lesser amount as the Bank may
wish) against such risks of loss and for its own benefit. The proceeds from such
insurance (less the costs of collecting the same), if collected, shall be
credited against the Debt, or, at the election of the Bank, such proceeds may be
used to purchase additional Personal Property to replace Personal Property which
has been damaged or destroyed and to repair or reconstruct the Improvements. All
amounts spent by the Bank for insurance or for the payment of Liens shall become
a debt due by the Grantor to the Bank and at once payable, without demand upon,
or notice to, the Grantor, and shall be secured by this security deed, and shall
bear interest at the rate of interest set forth in the Note, or such lesser rate
of interest as shall then be the maximum amount permitted by law, from the date
of payment by the Bank until paid by the Grantor.
7. Assignment of Condemnation Proceeds, etc. As further
security for the Debt and the full and complete performance of each and every
obligation, covenant, agreement and duty of the Grantor contained herein, and to
the extent of the full amount of the Debt secured hereby and of the costs and
expenses (including reasonable attorney's fees) incurred by the Bank in the
collection of any award or payment, the Grantor hereby assigns to the Bank any
and all awards or payments, including all interest thereon, together with the
right to receive the same, that may be made to the Grantor with respect to the
Property as a result of (a) the exercise of the right of eminent domain, (b) the
alteration of the grade or of any street or (c) any other injury to or decrease
in value of the Property. All such damages, condemnation proceeds and
consideration shall be paid directly to the Bank, and after first applying said
sums to the payment of all costs and expenses (including reasonable attorneys'
fees) incurred by the Bank in obtaining such sums, the Bank may, at its option,
apply the balance on the Debt in any order and amount and whether or not then
due, or hold such balance as a cash collateral reserve against the Debt, or
apply such balance to the restoration of the Property, or release the balance to
the Grantor. No such application, holding in reserve or release shall cure or
waive any default of the Grantor.
8. Covenant Against Waste. The Grantor agrees to take good
care of the Real Estate and all Improvements and Personal Property and not to
commit or permit any waste thereon, and at all times to maintain such
Improvements and Personal Property in as good condition as they now are,
reasonable wear and tear excepted.
9. Hazardous Substances.
(a) Except for the hazardous materials and substances and the
use thereof required to construct and to operate and maintain the Improvements,
the Grantor shall not make, store, use, treat, release or dispose of any
hazardous substances, pollutants or other contaminants ("Prohibited Substances")
on or under the Real Estate. If any such Prohibited Substances are nonetheless
made, stored, used, treated, released, disposed of or found to exist on or under
the Real Estate, the Grantor shall give immediate written notice to the Bank of
such occurrence or existence. If the Grantor fails to keep the Real Estate or
Improvements free of such Prohibited Substances, the Bank may, but shall not be
obligated to, do or cause to be done such acts as are necessary or desirable in
the Bank's opinion to remove and dispose of such Prohibited Substances. All
amounts spent by the Bank for the removal and disposal of such Prohibited
Substances and the return of the Real Estate and
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Improvements to a condition free of Prohibited Substances shall
become a debt due by the Grantor to the Bank and at once payable, without demand
or notice, and shall become a part of the Debt secured by this security deed, to
bear interest as provided in the Note from the date of payment by the Bank until
paid by the Grantor.
(b) The Grantor hereby warrants that (i) there are no civil,
criminal or administrative environmental proceedings involving the Real Estate
that are pending or to the Grantor's knowledge threatened; (ii) the Grantor
knows of no facts or circumstances that might give rise to such a proceeding in
the future; (iii) to the Grantor's knowledge, the Real Estate is in compliance
with all applicable federal, state and local statutory and regulatory
environmental requirements; and (iv) to the Grantor's knowledge, the Real Estate
is free from any and all "hazardous substances," "pollutants" and other
"contaminants," as those terms are defined in the federal Comprehensive
Environmental Response, Compensation, and Liability Act ("CERCLA") and rules and
regulations thereunder. The Grantor shall give immediate written notice to the
Bank of any actual or threatened "release" (as defined in CERCLA and rules and
regulations thereunder) of such substances on or from the Real Estate or any
portion thereof at any time during or preceding the Grantor's ownership of the
Real Estate. The Grantor shall indemnify and hold the Bank harmless from and
against all loss, damages, fines, penalties, liability and expenses (including
but not limited to reasonable attorneys' fees and costs of investigation and
litigation) caused by or in any manner resulting from such substances on or
under the Real Estate or any portion thereof at any time during or preceding the
Grantor's ownership of the Real Estate. The indemnity provisions of this
paragraph 9 shall survive the satisfaction of this security deed and shall
continue in full force and effect notwithstanding the payment of the Debt in
full for claims arising during or preceding the Grantor's ownership of the Real
Estate.
10. Covenants Related to Rents and Leases. The Grantor
covenants and agrees that the Grantor
shall:
(a) observe, perform and discharge all obligations, covenants
and warranties provided for under the terms of the Leases to be kept, observed
and performed by the Grantor, and shall give prompt notice to the Bank in the
event the Grantor fails to observe, perform and discharge the same;
(b) enforce or secure in the name of the Bank the performance
of each and every obligation, term, covenant, condition and agreement to be
performed by any lessee under the terms of the Leases;
(c) appear in and defend any action or proceeding arising
under, occurring out of, or in any manner connected with the Leases or the
obligations, duties or liabilities of the Grantor and any lessee thereunder,
and, upon request by the Bank to do so in the name and on behalf of the Bank but
at the expense of the Grantor, and to pay all costs and expenses of the Bank,
including reasonable attorneys' fees, in any action or proceeding in which the
Bank may appear;
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(d) not receive or collect any Rents from any present or
future lessee of the Real Estate or any of the Improvements, or any part
thereof, for a period of more than one month in advance, or pledge, transfer,
security deed or otherwise encumber or assign future payments of the Rents;
(e) not waive, excuse, condone, discount, set off, compromise,
or in any manner release or discharge any lessee of the Real Estate or any of
the Improvements of and from any obligations, covenants, conditions and
agreements by said lessee to be kept, observed and performed, including the
obligation to pay rent in the manner and at the place and time specified in any
Lease;
(f) not cancel, terminate or consent to any surrender of any
Lease, or modify or in any way alter the terms thereof without, in each such
instance, the prior written consent of the Bank; and
(g) promptly upon the execution by the Grantor of any future
Lease, (i) furnish the Bank with the name and address of the lessee thereunder,
the term of such Lease and a description of the premises covered thereby and,
upon request of the Bank, a copy of such Lease, and (ii) execute all such
further assignments of such Lease and the Rents therefrom as the Bank may
require.
11. Covenant Against Sale, Lease or Transfer, etc.
Notwithstanding any other provision of this security deed or the Note, if the
Real Estate or the Improvements, or any part thereof, or any interest therein,
is sold, leased, conveyed or transferred, without the Bank's prior written
consent, or if the Real Estate or the Improvements, or any part thereof, or any
interest therein, becomes subject to any additional lien, security deed or other
encumbrance, either voluntarily or involuntarily, without the Bank's prior
written consent, the Bank may, at its sole option: (a) declare the Debt
immediately due and payable in full; or (b) require the payment, after the date
of such sale, lease, conveyance or transfer, of a higher rate of interest on the
unpaid principal portion of the Debt as a condition to not exercising such
option to accelerate the Debt, whether such rights be exercised by the Bank to
obtain a higher rate of interest on the Debt or to protect the security of this
security deed.
12. Cancellation. This security deed is made upon the
condition that if the Grantor pays the Debt, as defined in this security deed,
and the Grantor reimburses the Bank for any amounts the Bank has paid in respect
of Liens or insurance premiums, and interest thereon, and the Grantor fulfills
all of its other obligations under this security deed, this security deed shall
be canceled and surrendered.
13. Events of Default. The Grantor shall be deemed in default
hereunder upon the occurrence of any of the following events ("Events of
Default"): if a default occurs under the terms of the Note or the Loan Agreement
and such default continues after any applicable notice and right to cure; or if
the interest of the Bank in any of the Property becomes endangered by reason of
the enforcement of any prior lien or encumbrance thereon; or if any law is
passed imposing, or authorizing the imposition of, any specific tax upon this
security deed or the Debt or permitting
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or authorizing the deduction of any such tax from the principal of, or interest
on, the Debt, or by virtue of which any tax, lien or assessment upon the
Property shall be chargeable against the owner of this security deed and the
Debt has not been repaid in full promptly after a written request therefor by
the Bank; or (d) if any of the stipulations contained in this security deed is
declared invalid or inoperative by any court of competent jurisdiction and the
Bank notifies the Grantor in writing that the Bank has determined that such
declaration may have a material adverse effect on the ability of the Grantor to
repay in full the Debt.
14. Rights and Remedies of Bank upon Default.
(a) Acceleration of Debt. Upon the occurrence of an Event of
Default or at any time thereafter, the Bank may at its option and without
further demand or notice to the Grantor, declare all or any part of the Debt
immediately due and payable, whereupon all such Debt shall forthwith become due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Grantor, and the Bank may
immediately enforce payment of all such amounts and may exercise any or all of
its rights and remedies under this security deed, the Note and applicable law.
The Grantor also waives any and all rights the Grantor may have to a hearing
before any judicial authority prior to the exercise by the Bank of any of its
rights under this security deed, the Note and applicable law.
(b) Operation of Property by Bank. Upon the occurrence of an
Event of Default and at any time thereafter, in addition to all other rights
herein conferred on the Bank, the Bank (or any person, firm or corporation
designated by the Bank) may, but will not be obligated to, enter upon and take
possession of any or all of the Property, exclude the Grantor therefrom, and
hold, use, administer, manage and operate the same to the extent that the
Grantor could do so, without any liability to the Grantor resulting therefrom;
and the Bank may collect, receive and receipt for all proceeds accruing from
such operation and management, make repairs and purchase needed additional
property, and exercise every power, right and privilege of the Grantor with
respect to the Property.
(c) Judicial Proceedings; Right to Receiver. Upon the
occurrence of an Event of Default or at any time thereafter, the Bank, in lieu
of, or in addition to, exercising the power of sale hereinafter given, may
proceed by suit to foreclose its lien on, security interest in, and assignment
of, the Property, to xxx the Grantor for damages on account of or arising out of
said default or breach, or for specific performance of any provision contained
herein, or to enforce any other appropriate legal or equitable right or remedy.
The Bank shall be entitled, as a matter of right, upon proper proceedings being
commenced for the foreclosure of this security deed, to the appointment by any
competent court or tribunal, without notice to the Grantor or any other party,
of a receiver of the rents, issues and profits of the Property, with power to
lease and control the Property and with such other powers as may be deemed
necessary.
(d) Foreclosure Sale. In case the Debt hereby secured shall
not be paid when it becomes due by maturity in due course, or by reason of an
Event of Default as herein provided, Grantor hereby grants to the Bank and
assigns, the following irrevocable power of attorney: To sell
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the said Property at auction, at the usual place for conducting sales at the
Court House in the County where the Real Estate or any part thereof lies, in
said State, to the highest bidder for cash, after advertising the time, terms
and place of such sale once a week for four (4) weeks immediately preceding such
sale (but without regard to the number of days) in the paper in which the
Sheriff's advertisements for such County are published, all other notice being
hereby waived by Grantor, and the Bank or any person on behalf of the Bank, or
assigns, may bid and purchase at such sale and thereupon execute and deliver to
the purchaser or purchasers at such sale a sufficient conveyance of said
Property in fee simple, which conveyance shall contain recitals as to the
happenings of the default upon which the execution of the power of sale herein
granted depends, and Grantor hereby constitutes and appoints the Bank and
assigns, the agent and attorney in fact of Grantor to make such recitals, and
hereby covenants and agrees that the recitals so to be made by the Bank, or
assigns, shall be binding and conclusive upon Grantor, and the heirs, executors,
administrators and assigns of Grantor, and that the conveyance to be made by the
Bank or assigns, shall be effectual to bar all equity of redemption of Grantor,
or the successors in interest of Grantor, in and to said property, and the Bank
or assigns shall collect the proceeds of such sale, and after reserving
therefrom the entire amount of principal and interest due, together with the
amount of any taxes, assessments and premiums of insurance or other payments
theretofore paid by the Bank, with eight percent per annum thereon from date of
payment, together with all costs and expenses of sale and attorney's fees in the
amount of fifteen percent of the outstanding principal and interest, shall pay
any over-plus to Grantor, or to the heirs or assigns of Grantor as provided by
law. The power and agency hereby granted are coupled with an interest and are
irrevocable by death or otherwise and are granted as cumulative to the remedies
for collection of the Debt provided by law.
(e) Personal Property and Fixtures. Upon the occurrence of an
Event of Default or at any time thereafter, the Bank shall have and may exercise
with respect to the Personal Property and fixtures included in the Property (the
"Collateral") all rights, remedies and powers of a secured party under the
Georgia Uniform Commercial Code with reference to the Collateral or any other
items in which a security interest has been granted herein, including, without
limitation, the right and power to sell at public or private sale or sales or
otherwise dispose of, lease or utilize the Collateral and any part or parts
thereof in any manner to the fullest extent authorized or permitted under the
Georgia Uniform Commercial Code after default hereunder, without regard to
preservation of the Collateral or its value and without the necessity of a court
order. The Bank shall have, among other rights, the right to take possession of
the Collateral and to enter upon any premises where the same may be situated for
the purpose of repossessing the same without being guilty of trespass and
without liability for damages occasioned thereby and to take any action deemed
appropriate or desirable by the Bank; at its option and its sole discretion, to
repair, restore or otherwise prepare the Collateral for sale, lease or other use
or disposition. At the Bank's request, the Grantor shall assemble the Collateral
and make the Collateral available to the Bank at any place designated by the
Bank. To the extent permitted by law, the Grantor expressly waives any notice of
sale or any other disposition of the Collateral and any rights or remedies of
the Bank with respect to, and the formalities prescribed by law relative to, the
sale or disposition of the Collateral or to the exercise of any other right or
remedy of the Bank existing after default. To the extent that such notice is
required and cannot be waived, the Grantor agrees that if such notice is given
to the Grantor in accordance with the provisions of paragraph 27 below, at least
five (5) days before the time of the sale or other
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disposition, such notice shall be deemed reasonable and shall fully satisfy any
requirement for giving said notice.
The Grantor agrees that the Bank may proceed to sell or
dispose of both the Real Estate and Personal Property comprising the Property in
accordance with the rights and remedies granted under this security deed with
respect to the Real Estate covered hereby. The Grantor hereby grants the Bank
the right, at its option after default hereunder, to transfer at any time to
itself or its nominee the Collateral or any part thereof and to receive the
monies, income, proceeds and benefits attributable to the same and to hold the
same as Collateral or to apply it on the Debt in such order and amounts and
manner as the Bank may elect. The Grantor covenants and agrees that all recitals
in any instrument transferring, assigning, leasing or making other disposition
of the Collateral or any part thereof shall be full proof of the matters stated
therein and no other proof shall be required to establish the legal propriety of
the sale or other action taken by the Bank and that all prerequisites of sale
shall be presumed conclusively to have been performed or to have occurred.
(f) Rents and Leases. Upon the occurrence of an Event of
Default or at any time thereafter:
(i) The Bank, at its option, shall have the right, power and
authority to exercise and enforce any or all of the following rights and
remedies with respect to Rents and Leases:
(A) to terminate the license granted to the Grantor in
Granting Clause C(iii) hereof to collect the Rents, and, without taking
possession, in the Bank's own name to demand, collect, receive, xxx
for, attach and levy the Rents, to give proper receipts, releases and
acquittances therefor, and after deducting all necessary and reasonable
costs and expenses of collection, including reasonable attorney's fees,
to apply the net proceeds thereof to the Debt in such order and amounts
as the Bank may choose (or hold the same in a reserve as security for
the Debt);
(B) without regard to the adequacy of the security, with or
without any action or proceeding, through any person or by agent, or by
a receiver to be appointed by court, to enter upon, take possession of,
manage and operate the Property or any part thereof for the account of
the Grantor, make, modify, enforce, cancel or accept surrender of any
Lease, remove and evict any lessee or sublessee, increase or reduce
rents, decorate, clean and make repairs, and otherwise do any act or
incur any cost or expenses the Bank shall deem proper to protect the
security hereof, as fully and to the same extent as the Grantor could
do if in possession, and in such event to apply any funds so collected
to the operation and management of the Property (including payment of
reasonable management, brokerage and attorney's fees) and payment of
the Debt in such order and amounts as the Bank may choose (or hold the
same in reserve as security for the Debt); and
(C) to take whatever legal proceedings may appear necessary or
desirable to enforce any obligation or covenant or agreement of the
Grantor under this security deed.
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(ii) The collection of the Rents and application thereof (or
holding thereof in reserve) as aforesaid or the entry upon and taking possession
of the Property or both shall not cure or waive any default or waive, modify or
affect any notice of default under this security deed, or invalidate any act
done pursuant to such notice, and the enforcement of such right or remedy by the
Bank, once exercised, shall continue for so long as the Bank shall elect,
notwithstanding that the collection and application aforesaid of the Rents may
have cured the original default. If the Bank shall thereafter elect to
discontinue the exercise of any such right or remedy, the same or any other
right or remedy hereunder may be reasserted at any time and from time to time
following any subsequent default.
(g) Application of Proceeds. All payments received by
the Bank as proceeds of the Property, or any part thereof, as well as any and
all amounts realized by the Bank in connection with the enforcement of any right
or remedy under or with respect to this security deed, shall be applied by the
Bank as follows: (i) to the payment of all necessary expenses incident to the
execution of any foreclosure sale or sales or other remedies under this security
deed, including reasonable attorneys' fees as provided herein and in the Note,
(ii) to the payment in full of any of the Debt that is then due and payable
(including without limitation principal, accrued interest and all other sums
secured hereby) and to the payment of attorneys' fees as provided herein and in
the Note, (iii) to a cash collateral reserve fund to be held by the Bank in an
amount equal to, and as security for, any of the Debt that is not then due and
payable, and (iv) the remainder, if any, shall be paid to the Grantor or such
other person or persons as may be entitled thereto by law, after deducting
therefrom the cost of ascertaining their identity.
(h) Multiple Sales. Upon the occurrence of an Event of
Default or at any time thereafter, the Bank shall have the option to proceed
with foreclosure, either through the courts or by proceeding with foreclosure as
provided for in this security deed, but without declaring the whole Debt due.
Any such sale may be made subject to the unmatured part of the Debt secured by
this security deed, and such sale, if so made, shall not in any manner affect
the unmatured part of the Debt secured by this security deed, but as to such
unmatured part of the Debt this security deed shall remain in full force and
effect as though no sale had been made under the provisions of this paragraph.
Several sales may be made under the provisions of this paragraph without
exhausting the right of sale for any remaining part of the Debt whether then
matured or unmatured, the purpose hereof being to provide for a foreclosure and
sale of the Property for any matured part of the Debt without exhausting any
power of foreclosure and the power to sell the Property for any other part of
the Debt, whether matured at the time or subsequently maturing.
(i) Waiver of Appraisement Laws. The Grantor waives, to
the fullest extent permitted by law, the benefit of all laws now existing or
hereafter enacted providing for (i) any appraisement before sale of any portion
of the Property (commonly known as appraisement laws), or (ii) any extension of
time for the enforcement of the collection of the Debt or any creation or
extension of a period of redemption from any sale made in collecting the Debt
(commonly known as stay laws and redemption laws).
(j) Prerequisites of Sales. In case of any sale of the
Property as authorized by this paragraph 14, all prerequisites to the sale shall
be presumed to have been performed, and in any
12
conveyance given hereunder all statements of facts, or other recitals therein
made, as to the nonpayment of any of the Debt or as to the advertisement of
sale, or the time, place and manner of sale, or as to any other fact or thing,
shall be taken in all courts of law or equity as prima facie evidence that the
facts so stated or recited are true.
15. Collection Costs. The Grantor agrees to pay all costs,
including reasonable attorneys' fees, incurred by the Bank in collecting or
securing, or attempting to collect or secure, the Debt, or any part thereof, or
in defending or attempting to defend the priority of this security deed against
any Lien on the Property, unless this security deed is herein expressly made
subject to any such Lien; and/or all costs incurred in the foreclosure of this
security deed, either under the power of sale contained herein, or by virtue of
the decree of any court of competent jurisdiction. The full amount of such costs
incurred by the Bank shall be a part of the Debt and shall be secured by this
security deed.
16. No Obligations with Respect to Leases. The Bank shall not
by virtue of this security deed or otherwise assume any duties,
responsibilities, liabilities or obligations with respect to Leases, the
Improvements, the Personal Property, the Real Estate or any of the other
Property (unless expressly assumed by the Bank under a separate agreement in
writing), and this security deed shall not be deemed to confer on the Bank any
duties or obligations that would make the Bank directly or derivatively liable
for any person's negligent, reckless or wilful conduct. The Grantor agrees to
defend, indemnify and save harmless the Bank from and against any and all
claims, causes of action and judgments relating to the Grantor's performance of
its duties, responsibilities and obligations under Leases and with respect to
the Real Estate, the Improvements, the Personal Property, or any of the other
Property.
17. Construction of Security Deed. This security deed is and
may be construed as a security deed, conveyance, assignment, security agreement
or contract, or any one or more of them, in order fully to effectuate the lien
hereof and the assignment and security interest created hereby and the purposes
and agreements herein set forth.
18. Successors and Assigns. All covenants and agreements
herein made by the undersigned shall bind the undersigned and the successors and
assigns of the undersigned; and every option, right and privilege herein
reserved or secured to the Bank shall inure to the benefit of the Bank's
successors and assigns.
19. Waiver and Election. The exercise by the Bank of any
option given under the terms of this security deed shall not be considered as a
waiver of the right to exercise any other option given herein, and the filing of
a suit to foreclose the lien, security interest and assignment granted by this
security deed, either on any matured portion of the Debt or for the whole of the
Debt, shall not be considered an election so as to preclude foreclosure under
power of sale after a dismissal of the suit; nor shall the publication of
notices for foreclosure preclude the prosecution of a later suit thereon. No
failure or delay on the part of the Bank in exercising any right, power or
remedy under this security deed shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any
13
other right, power or remedy hereunder or thereunder. The remedies provided in
this security deed and in the other Security Documents are cumulative and not
exclusive of any remedies provided by law. No amendment, modification,
termination or waiver of any provisions of this security deed or any of the
Security Documents, nor consent to any departure by the Grantor therefrom, shall
be effective unless the same shall be in writing and signed by an executive
officer of the Bank, and then such waiver or consent shall be effective only in
this specific instance and for the specific purpose for which given. No notice
to, or demand on, the Grantor in any case shall entitle the Grantor to any other
or further notice or demand in similar or other circumstances.
20. Landlord-Tenant Relationship. Any sale of the Property
under this security deed shall, without further notice, create the relationship
of landlord and tenant at sufferance between the purchaser and the Grantor.
21. Enforceability. If any provision of this security deed is
now or at any time hereafter becomes invalid or unenforceable, the other
provisions hereof shall remain in full force and effect, and the remaining
provisions hereof shall be construed in favor of the Bank to effectuate the
provisions hereof.
22. Application of Payments. If the lien, assignment or
security interest created by this security deed is invalid or unenforceable as
to any part of the Debt or is invalid or unenforceable as to any part of the
Property, the unsecured or partially secured portion of the Debt shall be
completely paid prior to the payment of the remaining and secured or partially
secured portion of the Debt, and all payments made on the Debt, whether
voluntary or under foreclosure or other enforcement action or procedures, shall
be considered to have been first paid on, and applied to, the full payment of
that portion of the Debt which is not secured or not fully secured by said lien,
assignment or security interest created hereby.
23. Meaning of Particular Terms. Whenever used, the singular
number shall include the plural and the plural the singular, and pronouns of one
gender shall include all genders; and the words "Grantor" and "Bank" shall
include their respective successors and assigns. Plural or singular words used
herein to designate the undersigned shall be construed to refer to the maker or
makers of this instrument, whether one or more natural persons, corporations,
associations, partnerships or other entities.
24. Advances by the Bank. If the Grantor shall fail to comply
with the provisions hereof with respect to the securing of insurance, the
payment of Liens, the keeping of the Property in repair, the performance of the
Grantor's obligations under any Lease, the payment of any prior security deeds,
or the performance of any other term or covenant herein contained, the Bank may
(but shall not be required to) make advances to perform the same, and where
necessary enter the Property for the purpose of performing any such term or
covenant. The Grantor agrees to repay all such sums advanced upon demand, with
interest from the date such advances are made, at the rate provided for in the
Note, or the highest rate permitted by law, whichever shall be less, and all
sums so advanced with interest shall be a part of the Debt and shall be secured
hereby. The making of any such
14
advances shall not be construed as a waiver by the Bank of any Event of Default
resulting from the Grantor's failure to pay the amounts paid.
25. Release or Extension by the Bank. The Bank, without notice
to the Grantor and without in any way affecting the rights of the Bank hereunder
as to any part of the Property not expressly released, may release any part of
the Property or any person liable for any of the Debt and may agree with any
party with an interest in the Property to extend the time for payment of all or
any part of the Debt or to waive the prompt and full performance of any term,
condition or covenant of the Note, this security deed or any other instrument
evidencing or securing the Debt.
26. Partial Payments. Acceptance by the Bank of any payment of
less than the full amount due on the Debt shall be deemed acceptance on account
only, and the failure of the Grantor to pay the entire amount then due shall be
and continue to constitute an Event of Default, and at any time thereafter and
until the entire amount due on the Debt has been paid, the Bank shall be
entitled to exercise all rights conferred on it by the terms of this security
deed in case of the occurrence of an Event of Default.
27. Notices. All notices, requests, demands and other
communications provided for hereunder shall be delivered to the applicable party
in accordance with the notice provision set forth in Section 7.01 of the Loan
Agreement.
28. Titles. All section, paragraph, subparagraph or other
titles contained in this security deed are for reference purposes only, and this
security deed shall be construed without reference to said titles.
29. Governing Law. This security deed shall be construed in
accordance with and governed by the laws of the State of Georgia.
30. Attorney's Fees. Whenever reference is made in this
security deed to the payment by Grantor of "reasonable attorney's fees" incurred
by the Bank, or words of similar import, the same shall mean and refer to actual
attorney's fees incurred by the Bank based upon the attorney's normal hourly
rate and the number of hours worked, and not the reasonable attorney's fees
statutorily defined in O.C.G.A.ss.13-1-11.
15
IN WITNESS WHEREOF, Xxxxxxx Properties Residential, L.P. has
caused this security deed to be duly executed, sealed and delivered by its duly
authorized general partner on the date first written above.
Signed, sealed and XXXXXXX PROPERTIES RESIDENTIAL, L.P.,
delivered in the a Georgia limited partnership
presence of:
By: Xxxxxxx Realty Investors, Inc., a Georgia
corporation, sole general partner
/s/ Xxxxx Xxxxx
Unofficial Witness By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
and Treasurer
/s/ Xxxxxx X. Xxxxxxx (CORPORATE SEAL)
----------------------------
Notary Public
AFFIX SEAL
My Commission expires:
August 10, 2002
16
EXHIBIT A
TO
DEED TO SECURE DEBT, SECURITY AGREEMENT
AND ASSIGNMENT OF RENTS AND LEASES
[Legal Description]
17
EXHIBIT B
TO
DEED TO SECURE DEBT, SECURITY AGREEMENT
AND ASSIGNMENT OF RENTS AND LEASES
[ Permitted Exceptions ]
18
