E-125
Exhibit No. 8
IBF VI - Guaranteed Income Fund
Form SB-2
AMENDED LOAN AGREEMENT
AGREEMENT made as of this 23rd day of June, 1998 between
[name], a Georgia limited liability Company ("Borrower") and IBF
Participating Income Fund ("Lender").
WITNESSETH:
Lender's assignor together with Borrower's assignor are
parties to a Loan Agreement
dated May ____, 1998 ( the "First Loan Agreement') pertaining to
the acquisition of the Xxxxxxxx Hotel in Atlanta Georgia (the
"Property"). Borrower has succeeded to the interest of the
purchaser to acquire the said Property and desires to borrow from
Lender a total of $1,800,000 (which includes the balance of
principal and interest due Lender as the First Advance under the
First Loan Agreement)
NOW, THEREFORE, the parties hereto agree as follows:
Article I. The Loan.
Section 1.01 Loan. The Loan shall be in the amount of
$1,800,000. Simultaneously herewith the Borrower shall execute
and deliver to Lender a Consolidated Note which shall consolidate
and combine the outstanding principal and interest due under the
First Loan Agreement and this Amended Loan Agreement. (The
"Note").
Article II. Representations and Covenants.
Section 2.01. Representations. The Borrower represents and
warrants to the Lender which representations shall be true as of
the date hereof, that:
(a) The Borrower has the power and authority to
execute, deliver and perform this Agreement, and each of the
other documents executed in connection therewith (collectively,
the "Loan Documents") to own its properties and to carry on its
business as now conducted;
(b) The execution, delivery performance of the Loan
Documents (i) have been duly authorized by all requisite action
of Borrower; (ii) to Borrower's knowledge does not violate any
provision of law, the Borrower's Operating Agreement any order
of any court or other agency, or any agreement to which the
Borrower is a party or by which the Borrower is bound; and (iii)
will not be in conflict with, result in a breach or constitute
(with due notice or lapse of time or both) a default under any
such agreement;
lien against the Property, free and clear of any other liens or
encumbrances other than Permitted Encumbrances as therein
described.
Article IV Extension of Maturity Date
Section 4.1 Loan Extension. Borrower shall have the right to
extend the stated Maturity Date as set forth in the Note for one
additional period of six months provided:
(a) Borrower is not at the time of the request to extend in
default hereunder or under the Note or the Deed to
Secure Debt;
(b) Borrower requests the extension in writing at least
thirty (30) days in advance of the Maturity Date and
has furnished proof that the Second Mortgage has been
satisfied of record or extended for not less than the
extended Maturity Date hereunder.
(c) All sums then due Lender have been paid;
(d) Borrower has paid Lender together with the written
request to extend, an extension fee of I% of the amount
of the then outstanding principal balance of the Loan
and has delivered to Lender a sum equal to interest
payment due hereunder.
Article V Origination Fee.
Borrower agrees to compensate Lender in connection with its
to due diligence, and originating the Loan by the payment of an
origination fee equal to 5% of the aggregate of the Note, payable
simultaneously with and out of the proceeds of the loan.
Section 5.1 Legal Fees. Borrower authorizes Lender to
disburse from the Loan to be advanced simultaneously herewith the
sum of S4000, be paid to the order of Xxxx & Xxxxx, Esqs. to
defray Lenders costs in connection with this Agreement. Borrower
shall also be responsible to pay any additional r1egal fee Lender
may incur in connection with the Loan.
Article V1. Default.
Section 6.01 Events of Default. Each of the following shall
constitute and "Event of Default" under this Agreement;
(a) If any representation or warranty made in connection
with this Agreement shall be untrue or incorrect in any
material respect;
(b) The failure to make any payment of principal or
interest under the Note within ton (10) days after the
due date thereof;
(c) A default in respect of any liabilities or obligations
(present or future, absolute or contingent, secured or
unsecured, matured or unmatured, joint or several) of
the Borrower, or any of its affiliates, to the Lender
included any under this Agreement, after the expiration
of any applicable grace, notice or cure period-,
(d) The admission (whether in writing or otherwise) by
Borrower of its inability to pay its debts generally as
they become due;
(e) The commencement by the Borrower or any Guarantor of a
voluntary case or other proceeding) under the Federal
Bankruptcy Code, as now constituted or hereafter
amended, or under any other applicable foreign or state
bankruptcy, insolvency or other similar law; or the
continued existence for more than (60) days in respect
of the Borrower of any Guarantor of an involuntary case
(or other proceeding) under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under
any other applicable bankruptcy applicable bankruptcy,
insolvency or other similar law, or the appointment of
a receiver, liquidator, assignee, custodian, manager,
trustee, sequestrator or similar official of the
Borrower or any Guarantor or for any substantial part
of its business; or the making by the Borrower or any
Guarantor of any assignment for the benefit of
creditors; of the failure of the Borrower generally to
pay its debts as they become due; of the taking by the
Borrower of action to do or authorize any of the
foregoing or in the furtherance of any of the
foregoing.
Section 6.02 Effect of Default (a) Upon the occurrence of an
Event of Default, the Lender, in its sole and absolute
discretion, may (i) declare all of the outstanding principal
balance to be immediately due and payable and/or exercise such of
the other remedies provided for in the Loan Documents as the
Lender may elect; and/or (ii) pursue any other rights or remedies
available to the Lender under this Agreement or the other Loan
Documents. Upon the occurrence of an Event of Default interest
shall accrue at the raw of 24% per annum.
(b) Without limiting any remedy otherwise available to the
Lender, the Borrower shall pay a late charge, to the extent
permitted by law, of five ($.05) cents per each dollar ($1. 00)
of each payment more than ten (10) days in arrears and accepted
by the Lender, to cover the extra expense involved in handling
delinquent payments.
(c) If the Borrower fails to observe or perform any of the
covenants or agreements on the part of the Borrower to be
performed hereunder, then the Lender may, but shall not be
obligated to, perform the same and all necessary and reasonable
costs incurred by the Lender in performing the Borrower's
covenants and agreements, including reasonable counsel fees,
shall be repaid by the Borrower upon demand, together with
interest thereon at the default rate under the Note.
Section 6.03 No Waiver (a) Any failure of the Lender
to exercise its option to declare the Credit Loans immediately
due and payable, or any forbearance by the Lender before or after
any exercise of such option, or any forbearance to exercise any
other remedy of the Lender, or any withdrawals or abandonment of
the Lender of any of its rights in any one circumstance, shall
not be construed as a waiver of any option, power, remedy or
right of the Lender hereunder except to the extent, if any, the
action of the Lender constitutes an express waiver with respect
to such one circumstance. The rights and remedies of the Lender
expressed and contained in this Agreement and in the other Loan
Documents are commutative and none of them shall be deemed to be
exclusive of any other or of any right or remedy the Lender may
now or hereafter have in law or in equity. The election of any
one or more remedies shall not be deemed to be an election of
remedies under any statute, rule, regulation or other law.
(b) The obligations of the Borrower( and the rights and
remedies of the Lender against the Borrower) hereunder shall in
no way modified, abrogated, terminated or adversely affected by
(i) any forbearance by the Lender in collecting any sums due, or
(ii) the granting of any extension of time to perform any
obligation hereunder or (iii) any impairment of the collateral,
if any, which may now or hereafter be assigned or delivered to
Lender to secure payment of the Credit Loans, by reason of any
act, failure to act or negligence of the Lender.
Article VII Interest Reserve: Simultaneously and from the
Loan proceeds, Borrower has delivered to Lender $137,445
representing six months of interest payments due under the Note.
Accordingly, Borrower shall be deemed to have made and paid each
of the first six monthly payments due under the Note.
Article VIII Miscellaneous
Section 7.01 Notice. All notices to be given hereunder
shall be delivered by hand, or sent to the party to be notified
via certified mail, return receipt requested or sent by
recognized overnight courier which provided evidence of receipt
and shall be deemed given when delivered by hand or one (1)
business day after delivery to such recognized overnight courier
for the next business day or three (3) business days after being
posted with the United States Postal Service addressed to the
parties as follows
If to the Lender at: IBF Participating Income Fund
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, X.X. 00000
If to the Borrower: [name]
Xxxxxxx, Xxxxxxx, 00000
Section 7.02 Successors-and Assigns The terms Borrower
and Lender, shall include the named Borrower and the named Lender
and their respective legal representative successors and assigns.
Section 7.03 Severability. If any or more of the
provisions contained in this Agreement or in any of the other
Loan Documents shall for any reason be held to be invalid,
Illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other
provision of this Agreement of any other of the other Loan
Document.
Section 7.04 Expenses of Lender. The Borrower shall pay
all reasonable out-of-pocket expenses, including but not limited
to counsel fees incurred by the Lender in connection with the
preparation, execution and delivery of this Agreement and the
enforcement or amendment of any of its rights or provisions
hereunder.
Section 7.05 Indemnity The Borrower shall indemnify and
hold harmless the Lender from and against any and all
liabilities, obligations, losses, damages, penalties, claims,
reasonable actions, suits proceedings, judgments, costs,
expenses, and disbursements, including but not limited t0counsel
fees, in any way relating to or arising out of the failure of the
Borrower to perform in full its obligations under this Agreement
or under any of the other Loan Documents.
Section 7.06 Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Georgia without regard to conflict of laws principles.
Section 7.07 Jurisdiction. ANY ACTION OR PROCEEDING
IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT IN A COURT OF
RECORD OF THE STATE OF GEORGIA OR THE FEDERAL DISTRICT COUKIAN
THE STATE OF NEW YORK OR THE DISTRICT OF COLUMBIA.
Section 7.08 Waiver of Certain Defenses. IN ANY ACTION
OR PROCEEDING IN CONNECT10N WITH THIS AGREEMENT, OR ANY OTHER
LOAN DOCUMENT, THE BORROWER WAIVES ANY CLAIM THAT ANY FORUM
LISTED HEREIN IS INCONVENIENT AND FURTHER WAIVES THE RIGHT TO
INTERPOSE ANY DEFENSE BASED UPON ANY STATUTE OF LIMITATIONS OR
ANY CLAIM OF LACBES AND ANY SET-OFF OR COUNTERCLAIM OF ANY NATURE
OR DESCRIPTION EXCEPT FOR ANY COUNTERCLAIMS DEEMED COMPULSORY
UNDER APPLICABLE COURT RULES OR STATES. THIS PARAGRAPH SHALL NOT
BE DEEMED TO BE A WAIVER OF ANY OTHER DEFENSE THAT MAY BE
RIGHTFULLY IWASSERTED BY BORROWER.
Section7.09 Waiver of Jury Trial and Waiver of Certain
Damages. IN ANY ACTION OR PROCEEDING IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, THE LENDER AND BORROWER
MUTUALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY
JURY AND BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.
Section 7. 10 Joint and Several Liability. If this
Agreement is executed by more than one person or entity, all
representations, warranties, obligations and covenants made by
the Borrower hereunder shall be deemed to have been made by each
of such persons and entities and the obligations and duties of
such parties hereunder shall be deemed to be joint and several in
all respects.
Section7.11 Counterparts. This Agreement maybe executed
in any number of counterparts, each of which shall be deemed to
be an original, but all of which, when taken together, shall
constitute one and the same instrument and shall become effective
when copies hereof, when taken together, bear the signatures of
each of the parties hereto and it shall not be necessary in
making proof of this instrument to produce or account for more
than one of such fully executed counterparts.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the Borrower and Lender as of the day and year first above
written.
BORROWER:[name][
By:
___________________________________
Name:
Title:
LENDER: IBF PARTICPATING INCOME FUND.
By:
____________________________________
Name:
Title:
CONSOLIDATED PROMISSORY NOTE
$1,800,000 JUNE 23,1998
FOR VALUE RECEIVED, [name] ( the "Borrower"), a Georgia
corporation promises to pay IBF Participating Income Fund, ( the
"Lender") or order, at Lender's office at 0000 Xxxxxxxxxxx Xxxxxx
XX, Xxxxxxxxxx XX 00000 or at such other address that any holder
of this note designates, the principal sum of One Million Seven
Hundred & Sixty Thousand ($1,700,000) Dollars with interest from
the date of advancement hereof on the unpaid principal at the
rate and in the manner hereinafter provided in lawful money in
the United States of America.
This Note shall be payable in full on December 23, 1998, (
the "Maturity Date") at which time all principal outstanding,
together with all accrued and unpaid interest, shall be due and
payable.
Interest on the outstanding balance shall accrue at the rate
of 15% per annum, until the Maturity Date. The Borrower shall
have the right to extend the Maturity Date for one additional
period of six months ( to expire no later than June 22, 1999)
provided:
(a) Borrower is not in default hereunder or under the terms
of a Deed to Secure Debt of even date given by Borrower
to Lender (the "Mortgage") or under an Amended Loan
Agreement of even date (the ""Loan Agreement") at the
time of the request to extend;
(b) The Deed to Secure Debt given by Borrower to JAMION
AMERICAN CORP. the ("Second Mortgage") has been
satisfied and removed of record or the term extend to
mature no sooner than the extended Maturity Date
hereunder;
(c) Borrower requests the extension in writing at least
thirty (30) days in advance of the Maturity Date;
(d) Borrower has paid Lender together with the written
request to extend, an extension fee of 1% of the amount
of the then outstanding principal balance of the Note
and has also delivered to Lender a sum equal to
interest payments for the succeeding six months under
this Note.
The principal balance of the Note includes the principal
balance and accrued interest under a Commercial Promissory Note
dated May , 1998 in the original principal amount of $107,000
made by Borrower in favor of IBF Special Purpose Corporation III,
(which note has been assigned to Lender) and as such is
consolidated hereinunder.
If a payment of principal or interest due hereunder is not
made within fifteen (15) days of its due date interest shall
therefore accrue at the lower of 24% per annum or the maximum
permitted rate, until paid.
If at any time while this Note is outstanding, any one or
more of the following events of default shall occur:
(a) a default in the performance or observance of the terms
of the Loan Agreement;
(b) a default in the prompt payment of any sum at any time
due under this Note;
(c) the filing of a voluntary bankruptcy petition by the
Borrower or the filing of an involuntary bankruptcy
petition against the Borrower which is not discharges
within sixty (60) days after its filing;
(d) a default in the performance or observance of any of
the terms of any Deed to Secure Debt or mortgage
including the Second Mortgage;
then and in any such event, the Lender may, at its option,
without notice or demand, declare the principal and a1l interest
then accrued under this Note to be immediately due and payable
without presentment, demand, protest or other notice of dishonor
of any kind, all of which are hereby expressly waived. No course
of dealing or delay in accelerating the maturity of this Note or
in taking any other action with respect to any event of default
shall affect rights later to take such action with respect
thereto and no waiver as to any one default shall affect rights
as to any other default.
The Borrower shall have the privilege of paying all of the
principal balance at any time, In the event of a prepayment,
Borrower shall be entitled to the amount of unearned interest
then held by Lender pursuant to the Loan Agreement against the
then outstanding principal balance of the Note. Upon the payment
in full whether at the Maturity Date or otherwise, the Borrower
shall pay to Lender an amount equal to 3% of the original
principal balance of this Note and unless the same is paid this
Note shall not be deemed fully satisfied.
The Borrower agrees by making this Note or by making an
agreement to pay any of the indebtedness evidenced by this Note,
to waive presentment for payment, protest and demand, notice of
protest, demand and dishonor and nonpayment of notice or further
assent (a) to the substitution, exchange or release by the Lender
or holder (s) hereof at any time of any additional collateral or
security of this Note, (b) to the modification or amendment, at
any time and from time to time this Note, Mortgage or any other
instrument securing this Note, at the request of any person
liable hereon, (c) to the granting by the Lender or holder hereof
of any extension of the time for payment of this Note or for the
performance of the agreements, covenants and conditions contained
in this Note, or any other instrument securing this Note at the
request of any person liable hereon, and (d) to any and all
forbearance and indulgences whatsoever. Such consent shall not
alter or diminish the liability of any person.
The Borrower agrees to pay all reasonable expenses and
costs, including without limitation attorney's fees, appraisal
fees, and costs of collection, which may be incurred by the
holder hereof in connection with the enforcement of any
obligations hereunder or under any instrument or document
executed in connection herewith or in connection with
representation with respect to bankruptcy or insolvency
proceedings.
This Note shall be the joint and several obligation of the
Borrower and all sureties and endorsers, and shall be binding
upon them and their respective successors and assigns and each an
and any of them.
IN WITNESS WHEREOF, the Borrower has executed this
Consolidated Promissory Note as an instrument under seal as of
the day and date first written above.
Witness: [name]
___________________________ By:
________________________________
AFTER RECORDING, PLEASE RETURN TO:
Xxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx,
Esq.
STATE OF GEORGIA
COUNTY OF XXXX
DEED TO SECURE DEBT
THIS INDENTURE, made as of the 26th day of June, 1998, by
and between [name], a Georgia limited liability company
(hereinafter referred to as the "Borrower "), and IBF
PARTICIPATING INCOME FUND, a Delaware corporation (hereinafter
referred to as the "Lender");
WITNESSETH:
WHEREAS, Borrower has executed and delivered to Lender that
certain Promissory Note dated on or about the date hereof (the
"Note") evidencing certain indebtedness of Borrower to Lender in
the original principal amount of S 1,800,000.00 arising from the
loan in such amount made by Lender to Borrower; and
WHEREAS, Borrower and Lender desire to enter into this Deed
to Secure Debt in order to secure the aforesaid indebtedness.
NOW, THEREFORE, the Borrower and the Lender hereby agree as
follows:
That for and in consideration of the sum of Ten and No/100
($10.00) Dollars in hand paid and the other considerations
hereinafter mentioned, receipt whereof is hereby acknowledged,
the Borrower does hereby bargain, sell, grant and convey to the
Lender, its successors and assigns all of the land described in
Exhibit "A" attached hereto and incorporated herein, together
with all buildings, improvements (including improvements to be
made hereafter) and fixtures attached or affixed thereto
(hereinafter collectively called the "Property ").
TOGETHER WITH all and singular the rights, members and
appurtenances whatsoever, in any way belonging, relating or
appertaining to any of the Property hereinabove mentioned or
which hereafter shall in any way belong, relate or be appurtenant
thereto, whether now owned or hereafter acquired by the Borrower.
TO HAVE AND TO HOLD the premises and all parts, rights,
members and appurtenances thereof to the use, benefit and behalf
of the Lender, its successors and assigns in fee simple forever;
and the Borrower covenants that the Borrower is lawfully seized
and possessed of the Property in fee simple and has good right to
convey the same, and that the Borrower will warrant and defend
the title thereto against the claims of all persons claiming by,
through or under Borrower, subject only to those matters
enumerated on Exhibit "B", attached hereto and made a part hereof
This conveyance is intended (i) to constitute a security
agreement as required under the Uniform Commercial Code of
Georgia and (ii) to operate as and to be construed as a deed
passing the title to the Property to the Lender 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 (a) a debt evidenced by the Note, payable to the
order of the Lender in the principal sum of $1,800,000.00 with
interest payable at the rate therein specified, to be paid as
specified in the Note (said amount hereinafter sometimes referred
to as the "Indebtedness"); (b) any and all renewals and
extensions of the Note; and (c) all costs of collection including
reasonable attorneys fees if collected by or through an attorney
at law. The entire unpaid principal balance and all accrued and
unpaid interest thereon, if not sooner paid, shall be due and
payable on December 23, 1998, as such due date may be extended
for one period of six (6) months to June 22, 1999, as provided in
the Note.
The Borrower covenants with the Lender as follows:
ARTICLE I
1.01 Payment of Indebtedness. The Borrower will pay the Note
according to the tenor thereof and all other sums secured hereby
promptly as the same shall become due.
1.02 Taxes, Liens and Other Charges.
(a) The Borrower will pay, before the same become
delinquent, all taxes, liens, assessments and charges
of every character already levied or assessed or that
may hereafter be levied or assessed upon or against the
Property and all utility charges, whether public or
private.
(b) The Borrower will not suffer or create any mechanic's,
materialmen's, laborer's statutory or other lien which
might or could be prior to, equal, or junior to this
Deed to Secure Debt to be created or to remain
outstanding upon any part of the Property, except as a
Permitted Encumbrance.
1.03 Insurance. The Borrower shall keep the buildings and
improvements now existing upon the Property insured for the
lesser of their replacement value or fair market value against
loss or damage by fire and other casualty including (i) fire, and
(ii) the perils covered by extended coverage insurance. Such
insurance shall be maintained with such companies as are
authorized to do business in the State of Georgia. Such policies
shall insure the Lender's interest in the Property, name the
Lender as an insured party thereunder, provide that the losses
thereunder shall be payable to the Lender and provide that no
cancellation or reduction in coverage shall be effective unless
the insurer first gives the Lender thirty (30) days' prior
written notice.
1.04 Care of Premises.
(a) If the Property or any part thereof is damaged by fire
or any other cause, the Borrower will give immediate
written notice of such damage to the Lender.
(b) The Lender or its representative is hereby authorized
to enter upon and inspect the Property at any time
during normal business hours upon reasonable advance
notice to the Borrower.
(c) The Borrower will promptly comply with all present and
future laws, ordinances, rules and regulations of any
governmental authority affecting the Property or any
part thereof, subject to the right to contest the same
in good faith.
(d) The Borrower shall not permit any waste to the
Property.
1.05 Expenses. The Borrower will pay or reimburse the Lender
for all reasonable attorneys' fees, costs and expenses incurred
by the Lender in any action, legal proceeding or dispute of any
kind in which the Lender is made a party, or appears as party
plaintiff or defendant affecting the Indebtedness, this Deed to
Secure Debt or the interest created herein, or the Property,
including but not limited to the exercise of the power of sale of
this Deed to Secure Debt, any condemnation action involving the
Property or any action to protect the security hereof, and any
such amounts paid by the Lender shall be added to and be a part
of the Indebtedness.
1.06 Performance by the Lender of Defaults by the Borrower.
If the Borrower shall default in the payment of any tax, lien,
assessment or charge levied or assessed against the Property, in
the payment of any insurance premium, in the procurement of
insurance, coverage or in the performance or observance of any
covenant, condition or term of this Deed to Secure Debt, and such
default is not cured within the applicable notice and cure
periods set forth herein, then the Lender, at its option, may,
but shall not be required to, perform or observe the same, and
all payments made or costs incurred by the Lender in connection
therewith shall be secured hereby and shall be, without demand,
immediately repaid by the Borrower to the Lender.
1.07 Condemnation. If all or any part of the Property shall
be damaged or taken through condemnation (which term when used in
this Deed to Secure Debt shall include any damage or taking by
any governmental authority or any transfer by private sale in
lieu thereof), either temporarily or permanently, the Lender
shall be entitled to all compensation, awards and other payment
or relief thereof up to and including an amount per acre equal to
the release price per acre set forth in Article V, below, and is
hereby authorized, at its option, to commence, appear in and
prosecute any action or proceeding relating to any condemnation
and to settle or compromise any claim in connection therewith.
All such compensation, awards, damages, claims, rights of action
and proceeds and the night thereto are hereby assigned by the
Borrower to the Lender, who, after deducting therefrom all its
reasonable expenses, including reasonable attorneys' fees, shall,
without affecting this Deed, apply the same in reduction of the
principal sum secured hereby or in the Note or notes evidencing
the Indebtedness, provided that any balance or such monies then
remaining shall be paid to the Borrower. The Borrower agrees to
execute such further assignment of any compensation, awards,
damages, claims, rights of action and proceeds as the Lender may
reasonably require.
ARTICLE II
2.01 Default . A Default shall have occurred hereunder, time
being of the essence, if:
(a) The Borrower shall fail to pay in full any installment
of principal or interest required by the Note, this Deed to
Secure Debt or otherwise and fails to remedy such nonpayment
within ten (10) days; or
(b) The Borrower shall fall to duly observe any other
covenant, condition or agreement of this Deed to Secure Debt or
any other instrument evidencing, securing or executed in
connection with the Indebtedness and fails to remedy such breach
within thirty (30) days after written notice thereof from the
Lender; or
(c) Any lien for labor or material or otherwise shall be
filed against the Property and not be removed within sixty (60)
calendar days of the date of such filing; or
(d) A levy shall be made under process on, or a receiver be
appointed for, the Property; or
(e) The Borrower files a voluntary petition in bankruptcy
or the Borrower is adjudicated as a bankrupt or insolvent or the
Borrower files any petition or answer seeking or acquiescing in
any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any
present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for
debtors or the Borrower seeks or consents to or acquiesces in the
appointment of any trustee, receiver or liquidator of the
Borrower or of all or any substantial part of the Property or of
any or all the rents, revenues, issues, earnings, profits or
income thereof or the making of any general assignment for the
benefit of creditors;
(f) An order, judgment or decree shall be entered without
the application, approval or consent of the Borrower by any court
of competent jurisdiction approving a petition seeking
reorganization of the Borrower or of all or a substantial part of
its properties or assets or .appointing a receiver, trustee or
liquidator of it and such order, judgment or decree shall
continue unstayed and in effect for any period of ninety (90)
days; or
(g) Title to the Property or any interest therein or in
Borrower is transferred or assigned without Lender's prior
written consent.
2.02 Acceleration of Maturity. If a default shall have
occurred hereunder and not be remedied within the time periods
permitted hereby, then the entire unpaid principal sum of the
indebtedness secured hereby, together with all interest accrued
and unpaid thereon, shall, at the option of the Lender, become
due and payable without notice or demand, time being of the
essence of this Deed to Secure Debt and of the Note; and no
omission on the part of the Lender to exercise such option when
entitled so to do shall be considered as a waiver of such right.
2.03 Power of Sale. When the indebtedness secured hereby
shall become due, whether by acceleration or otherwise, if the
same is not paid to Lender and the failure to make such payment
constitutes a default by Borrower hereunder, the Lender may sell
and dispose of the Property at public auction, at the usual place
for conducting sales at the courthouse in the county where the
Property or any part thereof may be located, to the highest
bidder for cash, first advertising the time, terms and place of
such sale by publishing a notice thereof once a week for four
consecutive weeks in a newspaper in which sheriff s
advertisements are published in said county, all other notice
being hereby waived by the Borrower; and the Lender may thereupon
execute and deliver to the purchaser at said sale a sufficient
conveyance of the Property in fee simple, which conveyance may
contain recitals as to the happening of the default upon which
the execution of the power of sale herein granted depends, and
said recitals shall be presumptive evidence, insofar as the
purchaser is concerned, that all preliminary acts prerequisite to
said sale and deed were in all things duly complied with; and the
Lender, its agents, representatives, successors or assigns may
bid and purchase at such sale; and the Borrower hereby
constitutes and appoints the Lender or its assigns Borrower's
agent and attorney-in-fact to make such recitals, sale and
conveyance, and all of the acts of such attorney-in-fact are
hereby ratified, and the Borrower agrees that such recitals shall
be binding and conclusive upon the Borrower, insofar as the
purchaser is concerned, and that the conveyance to be made by the
Lender, or its assigns, (and in the event of a deed in lieu of
foreclosure, then as to such conveyance) shall be effectual to
bar all right, title and interest, equity of redemption,
including all statutory redemption, homestead, dower, curtesy and
all other exemptions of the Borrower, or its successors in
interest, in and to said Property; and the Lender, or its
assigns, shall collect the proceeds of such sale, reserving
therefrom all unpaid secured indebtedness with interest then due
thereon, and all amounts advanced by the Lender for taxes,
assessments, fire insurance premiums and other charges, together
with all costs and charges for advertising, and commissions for
selling the Property and reasonable attorney's fees and pay over
any surplus to the Borrower; and the Borrower agrees that
possession of the Property during the existence of the secured
indebtedness by the Borrower, or any person claiming under the
Borrower, shall be that of tenant under the Lender, or its
assigns, and, in case of a sale, as herein provided, the Borrower
or any person in possession under the Borrower shall then become
and be tenants holding over and shall forthwith deliver
possession to the purchaser at such sale or be summarily
dispossessed in accordance with the provisions of law applicable
to tenants holding over; the power and agency hereby granted .are
coupled with an interest and are irrevocable by death or
otherwise and are in addition to any and all other remedies which
the Lender may have at law or in equity.
2.04 Discontinuance of Proceedings and Restoration of the
Parties. In case the Lender shall have proceeded to enforce any
right or remedy under this Deed to Secure Debt by receiver, entry
or otherwise and such proceedings shall have been discontinued or
abandoned for any reason or shall have been determined adversely
to the Lender, then, and in every such case, the Borrower and the
Lender shall be restored to their former positions and nights
hereunder, and all rights, powers and remedies of the Lender
shall continue as if no such proceeding had been taken.
2.05 WAIVER. THE BORROWER HEREBY WAIVES ANY RIGHT THE
BORROWER MAY HAVE UNDER THE CONSTITUTION OR THE LAWS OF THE STATE
OF GEORGIA OR THE CONSTITUTION OR THE LAWS OF THE UNITED STATES
OF AMERICA TO NOTICE OR TO A JUDICIAL HEARING PRIOR TO THE
EXERCISE OF ANY RIGHT OR REMEDY PROVIDED BY THIS DEED TO SECURE
DEBT TO THE LENDER AND THE BORROWER WAIVES THE BORROWER'S RIGHTS,
IF ANY, TO SET ASIDE OR INVALIDATE ANY SALE DULY CONSUMMATED IN
ACCORDANCE WITH THE PROVISIONS OF THIS DEED TO SECURE DEBT ON THE
GROUND (IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED
WITHOUT A PRIOR JUDICIAL HEARING. ALL WAIVERS BY THE BORROWER IN
THIS PARAGRAPH HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY AND
KNOWINGLY AFTER THE BORROWER HAS BY THE BORROWER'S ATTORNEY BEEN
FIRST APPRISED OF AND COUNSELED WITH RESPECT TO THE BORROWER'S
POSSIBLE ALTERNATIVE RIGHTS.
ARTICLE III
3.01 Intentionally omitted.
ARTICLE IV
4.01 Successors and Assigns Included in Parties. Whenever in
this Deed to Secure Debt one of the parties hereto is named or
referred to, the legal representatives, successors and assigns of
such parties shall be included and all covenants and agreements
contained in this indenture by or on behalf of the Borrower and
by or on behalf of the Lender shall bind and inure to the benefit
of their respective legal representatives, successors and
assigns, whether so expressed or not.
4.02 Headings. The headings of the sections, paragraphs and
subdivisions of this Deed to Secure Debt are for the convenience
of reference only, are not to be considered a part hereof and
shall not limit or otherwise affect any of the terms hereof.
4.03 Invalid Provisions to Affect No Others. If fulfillment
of any provision hereof or any transaction related hereto or to
the Note, at the time performance of such provisions shall be
due, shall involve transcending the limit of validity prescribed
by law, then, ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity; and, if any clause or
provision herein contained operates or would prospectively
operate to invalidate this Deed to Secure Debt in whole or in
part, then such clause or provision only shall be held for
naught, as though not herein contained, and the remainder of this
Deed to Secure Debt shall remain operative and in full force and
effect.
4.04 Number and Gender. Whenever the singular or plural
number, masculine or feminine or neuter gender is used herein, it
shall equally include the other.
4.05 Applicable Law. This Deed to Secure Debt shall be
governed by and shall be construed and interpreted in accordance
with the laws of the State of Georgia.
4.06 Time. TIME IS OF THE ESSENCE HEREOF.
4.07 Notices. Any and all notices required or permitted to
be given hereunder shall be in writing and shall be considered as
given when deposited in the mail, certified, postage prepaid,
return receipt requested, to the following parties:
If to the Lender: IBF Participating Income Fund
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xx. Xxxxxx Xxxxx
With a copy to: Xxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
If to the Borrower: [name]
Xxxxxxx, Xxxxxxx 00000
With copy to:
ARTICLE V
5.01 Deed to Secure Debt Releases. The Lender agrees to
cooperate with any applications necessary for the dedication of
any plat or plats, and any documents necessary to effectuate such
plans, such as the granting of or subordination to easements,
dedication of roads, acquisition of utilities and requests for
zoning changes; provided, however, that the Borrower shall
indemnify and hold the Lender harmless from any cost or expenses
incurred as a result of executing such documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Borrower and the Lender have caused
their duly authorized officers to execute under seal and deliver
this Deed to Secure Debt the day and year first above written.
Signed, sealed and delivered before me this BORROWER:
_____ day of _____________, 1998.
__________________________________
Unofficial Witness
__________________________________
Notary Public By:
________________________________
Name:
Title:
My Commission Expires:
________________________
(Signatures continued on next page)
(Signatures continued from preceding page)
Signed, sealed and delivered before me this
_____ day of _______________, 1998 LENDER:
__________________________________
Unofficial Witness IBF PARTICIPATING INCOME FUND
__________________________________
Notary Public By:
______________________________________
Name:
Title:
My Commission Expires:
______________ [CORPORATE OR BANK SEAL]
(NOTARIAL SEAL)
EXHIBIT "A"
ALL THAT TRACT OR PARCEL of land lying and being in the City of
Atlanta, in Land Xxx 00 xx xxx 00xx Xxxxxxxx xx Xxxxxx Xxxxxx,
Xxxxxxx, and being more particularly described as follows:
BEGINNING at the intersection of the western right-of-way line of
Peachtree Street (right-of-way width varies) with the southern
right-of-way line of Xxxxx Street (right-of-way width varies),
said point being the northeastern xxxxx of the building on said
lot; running thence south 00 degrees 00 minutes 00 seconds east
along the western right-of-way line of Peachtree Street, a
distance of 63.28 feet to a xxxxx of said building and the
property of Metropolitan Atlanta Rapid Transit Authority
(Peachtree Center Station); thence leaving said right-of-way line
of Peachtree Street, and running south 89 degrees 53 minutes 46
seconds west along said MARTA property, a distance of 70.60 feet
to a xxxxx of said building and the eastern side of a 10-foot
alley; running thence north 00 degrees 05 minutes 02 seconds west
along the eastern side of said alley, a distance of 63.45 feet to
a xxxxx of said building and the southern right-of-way fine of
Xxxxx Street; running thence north 89 degrees 57 minutes 57
seconds east along said right-of-way fine of Xxxxx Street, a
distance of 70.70 feet to the POINT OF BEGINNING; according to
ALTA/ACSM Land Title Survey for "The Demm Group, Inc. & Chicago
Title Insurance Company," dated January 16, 1998, prepared by
Xxxxx & Xxxxxxxx Engineers, Inc., under the seal and
certification of V.T. Xxxxxxx, Georgia Registered Land Surveyor
No. 2554; said tract of land containing 0. 10277 acre (4,477
square feet) and being improved property having a 15story brick
building located thereon, known as 000-000 Xxxxxxxxx Xxxxxx,
X.X., according to the present system of numbering in the City of
Atlanta, said survey being incorporated herein and made a part
hereof by reference.
TOGETHER WITH all right, title, and interest, if any, in and to
the aforesaid alley.
EXHIBIT "B"
1 All taxes for the year 1998 and subsequent years, and any
additional taxes resulting from reassessment of the subject
property.
2. Title to the alley adjoining the subject property on the
west and rights of the adjoining property owners in and to
the use of said alley as established by an Agreement by and
between X.X. Xxxxxx and X.X. Xxxxx, X.X. Xxxxx, X.X. Xxxxx,
Xxxxxxx Loan and Investment Company, and Xxx Xxxxxxx, dated
February 17, 1913, recorded in Deed Book 000, Xxxx 000,
Xxxxxx Xxxxxx, Xxxxxxx Records.
3. Rights of the owner of the property adjoining to the south
of the subject property to require the removal of three
cornices, or projections, on the southern side of the
building located on the subject property, which extend over
the property line, as provided in an Agreement by and
between H.H. and X.X. Xxxxx and Xxxxxx Investment Company,
dated July 31, 1913, recorded in Deed Book 427, Page 492,
aforesaid records.
4. Rights of the City of Atlanta to a part of the basement of
said building which protrudes under the sidewalk on the
Peachtree Street side of the subject property, conveyed as a
ten foot (10') strip on the Peachtree Street side of the
property for sidewalk purposes only, by quitclaim deed dated
February 24, 1913, recorded in Deed Book 409, Page 217,
aforesaid records.
5. Permanent Subsurface Easement acquired by the City of
Atlanta in Civil Action File Number C-39679, Superior Court
of Xxxxxx County, dated May 4,1978, a copy of which order is
recorded in Deed Book 6995, Page 167, aforesaid records, and
subsequently conveyed by Deed from City of Atlanta to
Metropolitan Atlanta Rapid Transit Authority, dated May 6,
1978, recorded in Deed Book 6981, Page 383, aforesaid
records; said easement being below the elevation of 1060
feet above U.P.S.C. and G.S. 1929 adjusted mean sea level
within the bound of the subject property for all purposes
necessary or incidental to the Metropolitan Atlanta Rapid
Transit Authority's construction, use and maintenance of a
rapid rail transit system, and appurtenances, including, but
not limited to, the right to construct, use, and maintain
within said easement an escalator tunnel for public access
to and from Metropolitan Atlanta Rapid Transit Authority's
Peachtree Center station located south of the subject
property.
6. Those matters as disclosed by that certain survey entitled
"ALTA/ACSM Land Title Survey for The Demm. Group, Inc. &
Chicago Title Insurance Company," prepared by Xxxxx &
Xxxxxxxx, Engineers, bearing the seal and certification of
V.T. Xxxxxxx, Georgia Registered Land Surveyor No. 2554,
dated January 16, 1998, as follows:
(i) subterranean MARTA easement; and
(ii) ten (10) foot alley along the west line of
the subject property.
AFTER RECORDING, PLEASE RETURN TO:
Xxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx,
Esq.
STATE OF GEORGIA
COUNTY OF XXXX
DEED TO SECURE DEBT
THIS INDENTURE, made as of the 26th day of June, 1998, by
and between [name], a Georgia limited liability company
(hereinafter referred to as the "Borrower "), and IBF
PARTICIPATING INCOME FUND, a Delaware corporation (hereinafter
referred to as the "Lender");
WITNESSETH:
WHEREAS, Borrower has executed and delivered to Lender that
certain Promissory Note dated on or about the date hereof (the
"Note") evidencing certain indebtedness of Borrower to Lender in
the original principal amount of S 1,800,000.00 arising from the
loan in such amount made by Lender to Borrower; and
WHEREAS, Borrower and Lender desire to enter into this Deed
to Secure Debt in order to secure the aforesaid indebtedness.
NOW, THEREFORE, the Borrower and the Lender hereby agree as
follows:
That for and in consideration of the sum of Ten and No/100
($10.00) Dollars in hand paid and the other considerations
hereinafter mentioned, receipt whereof is hereby acknowledged,
the Borrower does hereby bargain, sell, grant and convey to the
Lender, its successors and assigns all of the land described in
Exhibit "A" attached hereto and incorporated herein, together
with all buildings, improvements (including improvements to be
made hereafter) and fixtures attached or affixed thereto
(hereinafter collectively called the "Property ").
TOGETHER WITH all and singular the rights, members and
appurtenances whatsoever, in any way belonging, relating or
appertaining to any of the Property hereinabove mentioned or
which hereafter shall in any way belong, relate or be appurtenant
thereto, whether now owned or hereafter acquired by the Borrower.
TO HAVE AND TO HOLD the premises and all parts, rights,
members and appurtenances thereof to the use, benefit and behalf
of the Lender, its successors and assigns in fee simple forever;
and the Borrower covenants that the Borrower is lawfully seized
and possessed of the Property in fee simple and has good right to
convey the same, and that the Borrower will warrant and defend
the title thereto against the claims of all persons claiming by,
through or under Borrower, subject only to those matters
enumerated on Exhibit "B", attached hereto and made a part hereof
This conveyance is intended (i) to constitute a security
agreement as required under the Uniform Commercial Code of
Georgia and (ii) to operate as and to be construed as a deed
passing the title to the Property to the Lender 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 (a) a debt evidenced by the Note, payable to the
order of the Lender in the principal sum of $1,800,000.00 with
interest payable at the rate therein specified, to be paid as
specified in the Note (said amount hereinafter sometimes referred
to as the "Indebtedness"); (b) any and all renewals and
extensions of the Note; and (c) all costs of collection including
reasonable attorneys fees if collected by or through an attorney
at law. The entire unpaid principal balance and all accrued and
unpaid interest thereon, if not sooner paid, shall be due and
payable on December 23, 1998, as such due date may be extended
for one period of six (6) months to June 22, 1999, as provided in
the Note.
The Borrower covenants with the Lender as follows:
ARTICLE I
1.01 Payment of Indebtedness. The Borrower will pay the Note
according to the tenor thereof and all other sums secured hereby
promptly as the same shall become due.
1.02 Taxes, Liens and Other Charges.
(a) The Borrower will pay, before the same become
delinquent, all taxes, liens, assessments and charges
of every character already levied or assessed or that
may hereafter be levied or assessed upon or against the
Property and all utility charges, whether public or
private.
(b) The Borrower will not suffer or create any mechanic's,
materialmen's, laborer's statutory or other lien which
might or could be prior to, equal, or junior to this
Deed to Secure Debt to be created or to remain
outstanding upon any part of the Property, except as a
Permitted Encumbrance.
1.03 Insurance. The Borrower shall keep the buildings and
improvements now existing upon the Property insured for the
lesser of their replacement value or fair market value against
loss or damage by fire and other casualty including (i) fire, and
(ii) the perils covered by extended coverage insurance. Such
insurance shall be maintained with such companies as are
authorized to do business in the State of Georgia. Such policies
shall insure the Lender's interest in the Property, name the
Lender as an insured party thereunder, provide that the losses
thereunder shall be payable to the Lender and provide that no
cancellation or reduction in coverage shall be effective unless
the insurer first gives the Lender thirty (30) days' prior
written notice.
1.04 Care of Premises.
(a) If the Property or any part thereof is damaged by fire
or any other cause, the Borrower will give immediate
written notice of such damage to the Lender.
(b) The Lender or its representative is hereby authorized
to enter upon and inspect the Property at any time
during normal business hours upon reasonable advance
notice to the Borrower.
(c) The Borrower will promptly comply with all present and
future laws, ordinances, rules and regulations of any
governmental authority affecting the Property or any
part thereof, subject to the right to contest the same
in good faith.
(d) The Borrower shall not permit any waste to the
Property.
1.05 Expenses. The Borrower will pay or reimburse the Lender
for all reasonable attorneys' fees, costs and expenses incurred
by the Lender in any action, legal proceeding or dispute of any
kind in which the Lender is made a party, or appears as party
plaintiff or defendant affecting the Indebtedness, this Deed to
Secure Debt or the interest created herein, or the Property,
including but not limited to the exercise of the power of sale of
this Deed to Secure Debt, any condemnation action involving the
Property or any action to protect the security hereof, and any
such amounts paid by the Lender shall be added to and be a part
of the Indebtedness.
1.06 Performance by the Lender of Defaults by the Borrower.
If the Borrower shall default in the payment of any tax, lien,
assessment or charge levied or assessed against the Property, in
the payment of any insurance premium, in the procurement of
insurance, coverage or in the performance or observance of any
covenant, condition or term of this Deed to Secure Debt, and such
default is not cured within the applicable notice and cure
periods set forth herein, then the Lender, at its option, may,
but shall not be required to, perform or observe the same, and
all payments made or costs incurred by the Lender in connection
therewith shall be secured hereby and shall be, without demand,
immediately repaid by the Borrower to the Lender.
1.07 Condemnation. If all or any part of the Property shall
be damaged or taken through condemnation (which term when used in
this Deed to Secure Debt shall include any damage or taking by
any governmental authority or any transfer by private sale in
lieu thereof), either temporarily or permanently, the Lender
shall be entitled to all compensation, awards and other payment
or relief thereof up to and including an amount per acre equal to
the release price per acre set forth in Article V, below, and is
hereby authorized, at its option, to commence, appear in and
prosecute any action or proceeding relating to any condemnation
and to settle or compromise any claim in connection therewith.
All such compensation, awards, damages, claims, rights of action
and proceeds and the night thereto are hereby assigned by the
Borrower to the Lender, who, after deducting therefrom all its
reasonable expenses, including reasonable attorneys' fees, shall,
without affecting this Deed, apply the same in reduction of the
principal sum secured hereby or in the Note or notes evidencing
the Indebtedness, provided that any balance or such monies then
remaining shall be paid to the Borrower. The Borrower agrees to
execute such further assignment of any compensation, awards,
damages, claims, rights of action and proceeds as the Lender may
reasonably require.
ARTICLE II
2.01 Default . A Default shall have occurred hereunder, time
being of the essence, if:
(a) The Borrower shall fail to pay in full any installment
of principal or interest required by the Note, this Deed to
Secure Debt or otherwise and fails to remedy such nonpayment
within ten (10) days; or
(b) The Borrower shall fall to duly observe any other
covenant, condition or agreement of this Deed to Secure Debt or
any other instrument evidencing, securing or executed in
connection with the Indebtedness and fails to remedy such breach
within thirty (30) days after written notice thereof from the
Lender; or
(c) Any lien for labor or material or otherwise shall be
filed against the Property and not be removed within sixty (60)
calendar days of the date of such filing; or
(d) A levy shall be made under process on, or a receiver be
appointed for, the Property; or
(e) The Borrower files a voluntary petition in bankruptcy
or the Borrower is adjudicated as a bankrupt or insolvent or the
Borrower files any petition or answer seeking or acquiescing in
any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any
present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for
debtors or the Borrower seeks or consents to or acquiesces in the
appointment of any trustee, receiver or liquidator of the
Borrower or of all or any substantial part of the Property or of
any or all the rents, revenues, issues, earnings, profits or
income thereof or the making of any general assignment for the
benefit of creditors;
(f) An order, judgment or decree shall be entered without
the application, approval or consent of the Borrower by any court
of competent jurisdiction approving a petition seeking
reorganization of the Borrower or of all or a substantial part of
its properties or assets or .appointing a receiver, trustee or
liquidator of it and such order, judgment or decree shall
continue unstayed and in effect for any period of ninety (90)
days; or
(g) Title to the Property or any interest therein or in
Borrower is transferred or assigned without Lender's prior
written consent.
2.02 Acceleration of Maturity. If a default shall have
occurred hereunder and not be remedied within the time periods
permitted hereby, then the entire unpaid principal sum of the
indebtedness secured hereby, together with all interest accrued
and unpaid thereon, shall, at the option of the Lender, become
due and payable without notice or demand, time being of the
essence of this Deed to Secure Debt and of the Note; and no
omission on the part of the Lender to exercise such option when
entitled so to do shall be considered as a waiver of such right.
2.03 Power of Sale. When the indebtedness secured hereby
shall become due, whether by acceleration or otherwise, if the
same is not paid to Lender and the failure to make such payment
constitutes a default by Borrower hereunder, the Lender may sell
and dispose of the Property at public auction, at the usual place
for conducting sales at the courthouse in the county where the
Property or any part thereof may be located, to the highest
bidder for cash, first advertising the time, terms and place of
such sale by publishing a notice thereof once a week for four
consecutive weeks in a newspaper in which sheriff s
advertisements are published in said county, all other notice
being hereby waived by the Borrower; and the Lender may thereupon
execute and deliver to the purchaser at said sale a sufficient
conveyance of the Property in fee simple, which conveyance may
contain recitals as to the happening of the default upon which
the execution of the power of sale herein granted depends, and
said recitals shall be presumptive evidence, insofar as the
purchaser is concerned, that all preliminary acts prerequisite to
said sale and deed were in all things duly complied with; and the
Lender, its agents, representatives, successors or assigns may
bid and purchase at such sale; and the Borrower hereby
constitutes and appoints the Lender or its assigns Borrower's
agent and attorney-in-fact to make such recitals, sale and
conveyance, and all of the acts of such attorney-in-fact are
hereby ratified, and the Borrower agrees that such recitals shall
be binding and conclusive upon the Borrower, insofar as the
purchaser is concerned, and that the conveyance to be made by the
Lender, or its assigns, (and in the event of a deed in lieu of
foreclosure, then as to such conveyance) shall be effectual to
bar all right, title and interest, equity of redemption,
including all statutory redemption, homestead, dower, curtesy and
all other exemptions of the Borrower, or its successors in
interest, in and to said Property; and the Lender, or its
assigns, shall collect the proceeds of such sale, reserving
therefrom all unpaid secured indebtedness with interest then due
thereon, and all amounts advanced by the Lender for taxes,
assessments, fire insurance premiums and other charges, together
with all costs and charges for advertising, and commissions for
selling the Property and reasonable attorney's fees and pay over
any surplus to the Borrower; and the Borrower agrees that
possession of the Property during the existence of the secured
indebtedness by the Borrower, or any person claiming under the
Borrower, shall be that of tenant under the Lender, or its
assigns, and, in case of a sale, as herein provided, the Borrower
or any person in possession under the Borrower shall then become
and be tenants holding over and shall forthwith deliver
possession to the purchaser at such sale or be summarily
dispossessed in accordance with the provisions of law applicable
to tenants holding over; the power and agency hereby granted .are
coupled with an interest and are irrevocable by death or
otherwise and are in addition to any and all other remedies which
the Lender may have at law or in equity.
2.04 Discontinuance of Proceedings and Restoration of the
Parties. In case the Lender shall have proceeded to enforce any
right or remedy under this Deed to Secure Debt by receiver, entry
or otherwise and such proceedings shall have been discontinued or
abandoned for any reason or shall have been determined adversely
to the Lender, then, and in every such case, the Borrower and the
Lender shall be restored to their former positions and nights
hereunder, and all rights, powers and remedies of the Lender
shall continue as if no such proceeding had been taken.
2.05 WAIVER. THE BORROWER HEREBY WAIVES ANY RIGHT THE
BORROWER MAY HAVE UNDER THE CONSTITUTION OR THE LAWS OF THE STATE
OF GEORGIA OR THE CONSTITUTION OR THE LAWS OF THE UNITED STATES
OF AMERICA TO NOTICE OR TO A JUDICIAL HEARING PRIOR TO THE
EXERCISE OF ANY RIGHT OR REMEDY PROVIDED BY THIS DEED TO SECURE
DEBT TO THE LENDER AND THE BORROWER WAIVES THE BORROWER'S RIGHTS,
IF ANY, TO SET ASIDE OR INVALIDATE ANY SALE DULY CONSUMMATED IN
ACCORDANCE WITH THE PROVISIONS OF THIS DEED TO SECURE DEBT ON THE
GROUND (IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED
WITHOUT A PRIOR JUDICIAL HEARING. ALL WAIVERS BY THE BORROWER IN
THIS PARAGRAPH HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY AND
KNOWINGLY AFTER THE BORROWER HAS BY THE BORROWER'S ATTORNEY BEEN
FIRST APPRISED OF AND COUNSELED WITH RESPECT TO THE BORROWER'S
POSSIBLE ALTERNATIVE RIGHTS.
ARTICLE III
3.01 Intentionally omitted.
ARTICLE IV
4.01 Successors and Assigns Included in Parties. Whenever in
this Deed to Secure Debt one of the parties hereto is named or
referred to, the legal representatives, successors and assigns of
such parties shall be included and all covenants and agreements
contained in this indenture by or on behalf of the Borrower and
by or on behalf of the Lender shall bind and inure to the benefit
of their respective legal representatives, successors and
assigns, whether so expressed or not.
4.02 Headings. The headings of the sections, paragraphs and
subdivisions of this Deed to Secure Debt are for the convenience
of reference only, are not to be considered a part hereof and
shall not limit or otherwise affect any of the terms hereof.
4.03 Invalid Provisions to Affect No Others. If fulfillment
of any provision hereof or any transaction related hereto or to
the Note, at the time performance of such provisions shall be
due, shall involve transcending the limit of validity prescribed
by law, then, ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity; and, if any clause or
provision herein contained operates or would prospectively
operate to invalidate this Deed to Secure Debt in whole or in
part, then such clause or provision only shall be held for
naught, as though not herein contained, and the remainder of this
Deed to Secure Debt shall remain operative and in full force and
effect.
4.04 Number and Gender. Whenever the singular or plural
number, masculine or feminine or neuter gender is used herein, it
shall equally include the other.
4.05 Applicable Law. This Deed to Secure Debt shall be
governed by and shall be construed and interpreted in accordance
with the laws of the State of Georgia.
4.06 Time. TIME IS OF THE ESSENCE HEREOF.
4.07 Notices. Any and all notices required or permitted to
be given hereunder shall be in writing and shall be considered as
given when deposited in the mail, certified, postage prepaid,
return receipt requested, to the following parties:
If to the Lender: IBF Participating Income Fund
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xx. Xxxxxx Xxxxx
With a copy to: Xxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
If to the Borrower: [name]
Xxxxxxx, Xxxxxxx 00000
With copy to: Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq. and W. Xxxxx
Xxxxx, Esq.
ARTICLE V
5.01 Deed to Secure Debt Releases. The Lender agrees to
cooperate with any applications necessary for the dedication of
any plat or plats, and any documents necessary to effectuate such
plans, such as the granting of or subordination to easements,
dedication of roads, acquisition of utilities and requests for
zoning changes; provided, however, that the Borrower shall
indemnify and hold the Lender harmless from any cost or expenses
incurred as a result of executing such documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Borrower and the Lender have caused
their duly authorized officers to execute under seal and deliver
this Deed to Secure Debt the day and year first above written.
Signed, sealed and delivered before me this BORROWER:
_____ day of _____________, 1998.
__________________________________ [name]
Unofficial Witness
__________________________________
Notary Public By:
________________________________
Name:
Title:
My Commission Expires:
________________________
(Signatures continued on next page)
(Signatures continued from preceding page)
Signed, sealed and delivered before me this
_____ day of _______________, 1998 LENDER:
__________________________________
Unofficial Witness IBF PARTICIPATING INCOME FUND
__________________________________
Notary Public By:
______________________________________
Name:
Title:
My Commission Expires:
______________ [CORPORATE OR BANK SEAL]
(NOTARIAL SEAL)
EXHIBIT "A"
ALL THAT TRACT OR PARCEL of land lying and being in the City of
Atlanta, in Land Xxx 00 xx xxx 00xx Xxxxxxxx xx Xxxxxx Xxxxxx,
Xxxxxxx, and being more particularly described as follows:
BEGINNING at the intersection of the western right-of-way line of
Peachtree Street (right-of-way width varies) with the southern
right-of-way line of Xxxxx Street (right-of-way width varies),
said point being the northeastern xxxxx of the building on said
lot; running thence south 00 degrees 00 minutes 00 seconds east
along the western right-of-way line of Peachtree Street, a
distance of 63.28 feet to a xxxxx of said building and the
property of Metropolitan Atlanta Rapid Transit Authority
(Peachtree Center Station); thence leaving said right-of-way line
of Peachtree Street, and running south 89 degrees 53 minutes 46
seconds west along said MARTA property, a distance of 70.60 feet
to a xxxxx of said building and the eastern side of a 10-foot
alley; running thence north 00 degrees 05 minutes 02 seconds west
along the eastern side of said alley, a distance of 63.45 feet to
a xxxxx of said building and the southern right-of-way fine of
Xxxxx Street; running thence north 89 degrees 57 minutes 57
seconds east along said right-of-way fine of Xxxxx Street, a
distance of 70.70 feet to the POINT OF BEGINNING; according to
ALTA/ACSM Land Title Survey for "The Demm Group, Inc. & Chicago
Title Insurance Company," dated January 16, 1998, prepared by
Xxxxx & Xxxxxxxx Engineers, Inc., under the seal and
certification of V.T. Xxxxxxx, Georgia Registered Land Surveyor
No. 2554; said tract of land containing 0. 10277 acre (4,477
square feet) and being improved property having a 15story brick
building located thereon, known as 000-000 Xxxxxxxxx Xxxxxx,
X.X., according to the present system of numbering in the City of
Atlanta, said survey being incorporated herein and made a part
hereof by reference.
TOGETHER WITH all right, title, and interest, if any, in and to
the aforesaid alley.
EXHIBIT "B"
1 All taxes for the year 1998 and subsequent years, and any
additional taxes resulting from reassessment of the subject
property.
2. Title to the alley adjoining the subject property on the
west and rights of the adjoining property owners in and to
the use of said alley as established by an Agreement by and
between X.X. Xxxxxx and X.X. Xxxxx, X.X. Xxxxx, X.X. Xxxxx,
Xxxxxxx Loan and Investment Company, and Xxx Xxxxxxx, dated
February 17, 1913, recorded in Deed Book 000, Xxxx 000,
Xxxxxx Xxxxxx, Xxxxxxx Records.
3. Rights of the owner of the property adjoining to the south
of the subject property to require the removal of three
cornices, or projections, on the southern side of the
building located on the subject property, which extend over
the property line, as provided in an Agreement by and
between H.H. and X.X. Xxxxx and Xxxxxx Investment Company,
dated July 31, 1913, recorded in Deed Book 427, Page 492,
aforesaid records.
4. Rights of the City of Atlanta to a part of the basement of
said building which protrudes under the sidewalk on the
Peachtree Street side of the subject property, conveyed as a
ten foot (10') strip on the Peachtree Street side of the
property for sidewalk purposes only, by quitclaim deed dated
February 24, 1913, recorded in Deed Book 409, Page 217,
aforesaid records.
5. Permanent Subsurface Easement acquired by the City of
Atlanta in Civil Action File Number C-39679, Superior Court
of Xxxxxx County, dated May 4,1978, a copy of which order is
recorded in Deed Book 6995, Page 167, aforesaid records, and
subsequently conveyed by Deed from City of Atlanta to
Metropolitan Atlanta Rapid Transit Authority, dated May 6,
1978, recorded in Deed Book 6981, Page 383, aforesaid
records; said easement being below the elevation of 1060
feet above U.P.S.C. and G.S. 1929 adjusted mean sea level
within the bound of the subject property for all purposes
necessary or incidental to the Metropolitan Atlanta Rapid
Transit Authority's construction, use and maintenance of a
rapid rail transit system, and appurtenances, including, but
not limited to, the right to construct, use, and maintain
within said easement an escalator tunnel for public access
to and from Metropolitan Atlanta Rapid Transit Authority's
Peachtree Center station located south of the subject
property.
6. Those matters as disclosed by that certain survey entitled
"ALTA/ACSM Land Title Survey for The Demm. Group, Inc. &
Chicago Title Insurance Company," prepared by Xxxxx &
Xxxxxxxx, Engineers, bearing the seal and certification of
V.T. Xxxxxxx, Georgia Registered Land Surveyor No. 2554,
dated January 16, 1998, as follows:
(i) subterranean MARTA easement; and
(ii) ten (10) foot alley along the west line of
the subject property.
