1
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") made and entered into this 25th day
of February, 1999, by and between IRT PROPERTY COMPANY, a Georgia corporation
and IRT Alabama, INC., an Alabama corporation (individually and collectively the
"Borrower"), and GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY, a Delaware
corporation ("Lender").
PRELIMINARY RECITALS
A. The Borrower consists of two (2) affiliated corporations, each
organized for the purpose of owning commercial properties.
B. The Borrower is the owner of those certain retail facilities
later defined as the "Retail Facilities."
C. Borrower has applied to Lender and Lender has agreed, pursuant
to those Loan Commitments dated October 26, 1998, as modified and amended prior
to acceptance (individually and collectively "Commitments"), to loan to Borrower
the cumulative amount of Forty Million and 00/100 ($40,000,000.00), which loan
is later defined herein as the "Loan."
D. Pursuant to the Commitments the Lender and Borrower are
entering into this Agreement to set forth the terms and conditions under which
the Loan will be made and the terms of repayment thereof.
E. The Loan will be evidenced by a series of notes in the
aggregate amount of Forty Million and 00/100 Dollars ($40,000,000.00), all as
more fully defined and set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. DEFINITIONS. In addition to the defined terms appearing above,
capitalized terms used in this Agreement shall have (unless otherwise provided
elsewhere in this Agreement) the following respective meanings when used herein:
"Agreement" shall mean this Loan Agreement, including all
amendments, modifications and supplements hereto and any appendices,
exhibits and schedules to any of the foregoing, and shall refer to this
Loan Agreement as the same may be in effect at the time such reference
becomes operative.
"Ancillary Agreements" shall mean any supplemental agreement,
undertaking, instrument, document or other writing executed by Borrower
as a condition to advances or funding under this Agreement or otherwise
in connection
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herewith, including, without limitation, the Loan Documents and all
amendments and supplements thereto.
"Appraisal" shall mean, as to each Property, the appraisal
delivered to the Lender under the terms of the Commitments.
"Assets" shall mean, collectively, the Retail Facilities.
"Assignment of Rents and Leases" shall mean the Assignment of
Rents and Leases executed by Borrower for each of the Retail
Facilities.
"Business Day" shall mean any day that is not a Saturday, a
Sunday or a day on which banks are required or permitted to be closed
in the State of Georgia.
"Charges" shall mean all federal, state, county, city,
municipal, local, foreign or other governmental taxes at the time due
and payable, levies, assessments, charges, liens, claims or
encumbrances upon or relating to (i) the Assets, (ii) the Obligations,
(iii) the Borrower's employees, payroll, income or gross receipts, (iv)
the Borrower's ownership or use of any of the Assets, or (v) any other
aspect of the Borrower's business.
"Closing Date" shall mean the actual date of the closing of
the Loan.
"Code" shall mean the Uniform Commercial Code of each
jurisdiction in which a Retail Facility is located, as in effect from
time to time.
"Collateral" shall mean the collateral covered by the
Collateral Documents.
"Collateral Documents" shall mean the following documents
given as additional security for the Loan with respect to each Retail
Facility and consisting of the following, to wit:
The Mortgages
The Assignment of Rents and Leases
The Indemnities
The UCC Financing Statements
"Environmental Indemnity" shall mean the Indemnity executed by
the Borrower to Lender indemnifying and holding the Lender harmless
against Hazardous Substances, any Release or Remedial Action.
"Event of Default" shall have the meaning assigned to such
term in Section 5.1 hereof.
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"Financing Statements" shall mean financing statements filed
under the provisions of the Code given by the parties to the Collateral
Documents as may be necessary to perfect any security interests granted
thereunder.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof, and any agency,
department or other entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Retail Facilities" shall mean the following Retail Facilities
located as follows:
Xxxxxxxx Square Retail
Atlanta, Georgia
A retail property consisting of approximately 74,315 square feet of
buildings on a site of approximately 386,377 square feet located at 0000 Xxxxxxx
Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, sometimes herein referred to as "Xxxxxxxx
Square Retail."
Fairview Oaks Retail
Ellenwood, Georgia
A retail property consisting of approximately 77,052 square feet of
buildings on a site of approximately 451,804 square feet located at 000 Xxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxx 00000, sometimes herein referred to as "Fairview Oaks
Retail."
Madison Centre Retail
Madison, Alabama
A retail property consisting of approximately 64,837 square feet of
buildings on a site of approximately 402,233 square feet located at Alabama
Xxxxxxx 00 xxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, sometimes herein referred
to as "Madison Centre Retail."
Xxxxxx Village Retail
Augusta, Georgia
A retail property consisting of approximately 164,549 square feet of
buildings on a site of approximately 709,156 square feet, located at Xxxxxxxxxxx
Xxxx, Xxxxxxx, Xxxxxxx 00000, sometimes herein referred to as "Xxxxxx Village
Retail."
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Paulding Commons Retail
Hiram, Georgia
A retail property consisting of approximately 192,391 square feet of
buildings on a site of approximately 959,148 square feet located at 0000 Xxxxxxx
000 xx Xxxxxxx 00, Xxxxx, Xxxxxxx 00000, sometimes herein referred to as
"Paulding Commons Retail."
Xxxxxxx Commons Retail
Douglasville, Georgia
A retail property consisting of approximately 97,027 square feet of
buildings on a site of approximately 443,048 square feet located at 8471 - 0000
Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, sometimes herein referred to as
"Xxxxxxx Commons Retail."
Xxxxxx Chapel Crossing Retail
Decatur, Georgia
A retail property consisting of approximately 170,792 square feet of
buildings on a site of approximately 1,004,276 square feet located at 0000-0000
Xxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, sometimes herein referred to as
"Xxxxxx Chapel Crossing Retail."
Siegen Village Retail
Baton Rouge, Louisiana
A retail property consisting of approximately 174,578 square feet of
buildings on a site of approximately 343,556 square feet located at Siegen Lane
and Interstate 10, Xxxxx Xxxxx, Xxxxxxxxx 00000, sometimes herein referred to as
"Siegen Village Retail."
"Lender" shall mean General Electric Capital Assurance
Company, a Delaware corporation and any future holder of all or any
portion of the Notes.
"Lien" shall mean any mortgage, deed to secure debt or deed of
trust (including any mortgage, pledge, hypothecation, assignment,
deposit arrangement, lien, Charge that becomes a lien on real property,
claim, security interest, easement or encumbrance, or preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any lease (but not including a tenant
lease of a unit within a Retail Facility made in the ordinary course of
business and in compliance with the Loan Documents) or title retention
agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the
Code or comparable law of any jurisdiction).
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"Loan" shall mean a loan to be made by the Lender to the
Borrower pursuant to this Agreement in the aggregate amount of Forty
Million and 00/100 Dollars ($40,000,000.00). The Loan is to be
evidenced by the Notes.
"Loan Year" shall mean a full calendar year of twelve (12)
months commencing on February 1 of each year and ending January 31 of
the next year and including in the first Loan Year any days before
February 1, 1999.
"Loan Documents" shall mean this Agreement, the Notes, the
SNDAs, the Collateral Documents, and all other agreements, instruments,
documents and certificates, including, without limitation, pledges,
powers of attorney, consents, assignments, contracts, notices, and all
other written matter whether heretofore, now or hereafter executed by
or on behalf of the Borrower and delivered to Lender, in connection
with this Agreement or the transactions contemplated hereby.
"Mandatory Release" shall mean the required release of a
particular Retail Facility from the lien or liens of the Mortgage at
Borrower's written request upon the payment to the Lender of the
Release Price.
"Maturity Date" shall mean the earliest of (i) February 28,
2024, or (ii) the date of acceleration of the Loan pursuant to the
terms hereof.
"Mortgages" shall mean those respective mortgages, deeds of
trust and deeds to secure debt executed by the Borrower creating a
first mortgage lien on and security interest in the individual Retail
Facility securing the respective Note for that particular Retail
Facility and those respective mortgages and deeds to secure debt
executed by the Borrower creating a second mortgage lien on and
security interest in each individual Retail Facility and securing the
Notes other than the Note secured by the first mortgage lien on such
Retail Facility.
"Notes" shall mean the series of notes executed and delivered
by the Borrower to the Lender pursuant to this Agreement in the
aggregate amount of $40,000,000.00 secured by the Mortgages and in the
respective amounts as follows:
Note Amount Retail Facility
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$4,300,000.00 Xxxxxxxx Square
$5,300,000.00 Fairview Oaks
$4,300,000.00 Madison Centre
$4,700,000.00 Xxxxxx Village
$7,300,000.00 Paulding Commons
$5,600,000.00 Xxxxxxx Commons
$3,750,000.00 Xxxxxx Chapel
$4,750,000.00 Siegen Retail
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When the context requires each individual note shall be referred to as
"Note" or with reference to the particular Retail Facility as in
"Xxxxxxxx Square Note," "Fairview Oaks Note," etc. Each of the Notes
shall be cross-defaulted to all of the other Notes, collateralized by a
first mortgage lien on and security interest in the respective Retail
Facility and cross-collateralized by a second mortgage lien on and
security interest in each of the seven other Retail Facilities.
"Obligations" shall mean all loans, advances, debts,
liabilities, and obligations, for monetary amounts (whether or not such
amounts are liquidated or determinable) owing by the Borrower to
Lender, and all covenants and duties regarding such amounts, of any
kind or nature, present or future, whether or not evidenced by any
note, agreement or other instrument arising under any of the Loan
Documents. This term includes, without limitation, all interest,
charges, expenses, attorneys' fees and any other sum chargeable to the
Borrower under any of the Loan Documents.
"Organizational Documents" shall mean in the case of the
Borrower the documents organizing and creating the corporations
consisting of the following for each such entity:
Articles of Incorporation
By-Laws
Good Standing Certificate from its state of incorporation
Certificate of Good Standing as a foreign corporation from
each state in which the Retail Facilities which it owns or
operates are located Resolutions of its Board of Directors
authorizing the incurring of the Loan and the execution and
delivery of the Loan Documents
"Permitted Encumbrances" shall mean (i) liens for taxes or
assessments or other governmental charges not yet due and payable or to
the extent that nonpayment thereof is expressly permitted by this
Agreement; and (ii) liens, restrictions, and encumbrances listed in the
title insurance policy issued in connection with each Retail Facility
insuring Lender in this transaction (including in particular tenants in
possession under unrecorded leases from whom Subordination,
Nondisturbance and Attornment Agreements are not required. The
leasehold interests of tenants from whom Subordination, Nondisturbance
and Attornment Agreements are required may be shown in the title
insurance policy as subordinate items).
"Persons" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation,
entity or government (whether federal, state, county, city, municipal
or otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
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"Premises" shall mean each Retail Facility from and after the
date the Borrower acquires title to such Retail Facility, including,
without limitation, all right, title and interest of the Borrower, if
any, in and to the streets, the land lying in the bed of any streets,
roads or avenues, opened or proposed, in front of, adjoining, or
abutting such land to the center line thereof, the air space and
development rights pertaining to such land and right to use such air
space and development rights, all rights of way, privileges, liberties,
tenements, hereditaments, and appurtenances belonging or in any way
appertaining thereto, all fixtures, all easements now or hereafter
benefiting such land and all royalties and rights appertaining to the
use and enjoyment of such land, including, without limitation, all
alley, vault, drainage, mineral, water, oil, and gas rights, together
with all of the buildings and other improvements now or hereafter
erected on such land, and all fixtures and equipment, furnishings,
furniture and articles of personal property appertaining thereto,
additions thereto and substitutions and replacements thereof. When the
context addresses a single property, the term "Premises" shall be
construed to refer to the single "Retail Facility," as the context
requires.
"Properties" shall mean the Retail Facilities.
"Release" shall mean the release from the lien of the Loan
Documents of a particular property under the conditions in the
Agreement.
"Title" shall mean Commonwealth Land Title Insurance Company,
000 Xxxx Xxxxxx Xxxxx, 000 Xxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000.
"Transfer" shall mean any sale, pledge, assignment, mortgage,
encumbrance, security interest, consensual lien, hypothecation,
transfer or divesture, the effect of which is to grant another an
interest in the Premises or the Undersigned, either directly or
indirectly, including an interest taken as security but not including a
tenant lease of a unit within a Retail Facility made in the ordinary
course of business and in compliance with the Loan Documents. Any
change in the legal or equitable title of the Premises or in the
beneficial ownership of a Premises whether or not of record and whether
or not for consideration shall be deemed a Transfer.
The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole, including the Exhibits and Schedules
hereto, as the same may from time to time be amended, modified or supplemented
and not to any particular section, subsection or clause contained in this
Agreement.
Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and the plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter.
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2. AMOUNT AND TERMS OF LOAN
2.1 Loan. Upon and subject to the terms and conditions hereof and
the Commitments, Lender agrees to advance to Borrower an aggregate principal
amount of $40,000,000.00 by federal wire transfer to the escrow account of Title
for disbursement in accordance with this Agreement.
2.2 Interest on the Loan. Interest shall be payable on the Loan at
the following rates:
(a) Interest Rate. During the entire term of the Loan, the
interest rate shall be at a per annum rate of six and one-half
(6.5%) ("Interest Rate"), computed in accordance with the
terms of the Notes.
(b) Default Rate. If an Event of Default occurs, then, at the
option of the Lender during the entire period during which
such Event of Default shall occur and be continuing interest
shall be payable on the whole of the unpaid principal sum at a
per annum rate of interest equal to the lesser of (i) the
maximum lawful rate of interest permitted to be paid on the
respective Notes, or (ii) eleven and one-half percent (11.5%)
per annum ("Default Rate"), whether or not the Lender has
exercised its option to accelerate the maturity of the Note(s)
and declare the entire unpaid principal balance due and
payable.
(c) Savings Clause. Notwithstanding anything to the contrary set
forth in this Section 2.2, if at any time until payment in
full of all of the Obligations, the Interest Rate payable on
any Note exceeds the highest rate of interest permissible
under any law which a court of competent jurisdiction shall,
in a final determination, deem applicable to a particular Note
(the "Maximum Lawful Rate"), then in such event and so long as
the Maximum Lawful Rate would be so exceeded, the Interest
Rate shall be equal to the Maximum Lawful Rate; provided,
however, that if at any time thereafter the Interest Rate is
less than the Maximum Lawful Rate, Borrower shall continue to
pay interest on that particular Note at the Maximum Lawful
Rate until such time as the total interest received by Lender
on that Note is equal to the total interest which Lender would
have received had the Interest Rate been (but for the
operation of this paragraph) the interest rate payable since
the initial funding of the Loan. Thereafter, the interest rate
payable on that particular Note shall be the Interest Rate
unless and until the Interest Rate again exceeds the Maximum
Lawful Rate, in which event this paragraph shall again apply.
In no event shall the total interest received by Lender on a
particular Note exceed the amount which such Lender could
lawfully have received had the interest due hereunder been
calculated for the full term hereof at the Maximum Lawful
Rate. In the event the Maximum Lawful Rate is calculated
pursuant to this paragraph, such interest shall be calculated
at a daily rate equal to the Maximum
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Lawful Rate divided by the number of days in the year in which
such calculation is made. In the event that a court of
competent jurisdiction, notwithstanding the provisions of this
Section 2.2, shall make a final determination that Lender has
received interest under any Note in excess of the Maximum
Lawful Rate, Lender shall, to the extent permitted by
applicable law, promptly apply such excess first to any
interest due and not yet paid under that Note, then to the
outstanding principal due under that Note, then to other
unpaid Obligations and thereafter shall refund any excess to
Borrower or as a court of competent jurisdiction may otherwise
order.
(d) Late Charge. In the event that any payment required under the
Notes is not received by lender within ten (10) days of its
due date, the Borrower agrees to pay a late charge of five
percent (5%) of the amount of the unpaid payment to defray the
costs of the Lender incident to collecting such late payment.
This late charge shall apply individually to all payments past
due and there will be no daily pro rata adjustment. This
provision shall not be deemed to excuse a late payment or be
deemed a waiver of any other rights the Lender may have,
including the right to declare the entire unpaid principal and
interest immediately due and payable.
2.3 Prepayment. The Loan may be prepaid in whole or in part upon
payment of the Prepayment Fee set forth in the Notes. Any prepayment shall be
made on thirty (30) days advance written notice to the Lender. No Prepayment Fee
shall be required for a prepayment of principal attributable to the receipt of
proceeds of insurance or condemnation.
2.4 Single Loan. All of the obligations of Borrower arising under
this Agreement and the other Loan Documents shall constitute one general
obligation of the Borrower secured by the Lender's Lien on all of the Assets.
3. CONDITIONS PRECEDENT
3.1 Conditions to Loan. Borrower represents and warrants to Lender
that all conditions contained in the Commitment that are precedent to the
closing have been satisfied or have been waived by Lender.
4. SURVIVAL OF OBLIGATIONS
4.1 Survival of Obligations Upon Termination of Financing
Agreement. Except as otherwise expressly provided for in the Loan Documents, no
termination or cancellation (regardless of cause or procedure) of any financing
arrangement under this Agreement shall in any way affect or impair the powers,
obligations, duties, rights and liabilities of the Borrower or the rights of
Lender relating to any transaction or event occurring prior to such termination.
Except as otherwise expressly provided herein or in
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any other Loan Document, all undertakings, agreements, covenants, warranties and
representations contained in the Loan Documents shall survive such termination
or cancellation and shall continue in full force and effect until such time as
all of the Obligations have been paid in full in accordance with the terms of
the agreements creating such Obligations, at which time the same shall
terminate.
5. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
5.1 Events of Default: The occurrence of an Event of Default under
any of the Notes or of an Event of Default under any Deed to Secure Debt or
Mortgage securing said Notes (regardless of the reason therefor) shall
constitute an "Event of Default" hereunder.
5.2 Remedies. Upon the occurrence of any Event of Default, the
Lender may declare the entire unpaid principal balance of the Loan together with
all fees and interest due and payable in full, and may, without demand,
advertisement, or notice of any kind (except such notice as may be required by
the Loan Documents) and all of which are to the extent permitted by law,
expressly waived:
(a) Enforce the payment and performance of obligations owed by the
Borrower under any of the Loan Documents and this Agreement.
(b) Enforce the provisions of this Agreement.
(c) Notify all obligors under any Collateral that the Collateral
has been assigned to the Lender and that all payments thereon
are to be made directly to the Lender or such other party as
may be designated by the Lender; settle, compromise, or
release, in whole or in part, any amounts owing on the
Collateral, or by any such obligor on any portion of the
Collateral, on terms acceptable to the Lender; enforce payment
and prosecute any action or proceeding with respect to any and
all Collateral; and where any such Collateral is in default,
foreclose on and enforce security interests in, such
Collateral by any available judicial procedure or without
judicial process and sell property acquired as a result of any
such foreclosure.
(d) Exercise all rights and remedies of a secured creditor under
the Code, including, but not limited to selling the Collateral
at public or private sale. The Lender shall give the debtor
not less than ten (10) days' notice of any such public sale or
of the date after which private sale may be held. The Borrower
agrees that ten (10) days' notice shall be reasonable notice.
At any such sale the Collateral may be sold as an entirety or
in separate parts, as the Lender may determine. The Lender
may, without notice or publication, adjourn under any
Financing Statement any public or private sale or cause the
same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may be made
at any
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time or place to which the same may be so adjourned. In case
of any sale of all or any part of the Collateral on credit or
for future delivery, the Collateral so sold may be retained by
the Lender until the selling price is paid by the purchaser
thereof, but the Lender shall not incur any liability in case
of the failure of such purchaser to take up and pay for the
Collateral so sold and, in the case of any such failure, such
Collateral may again be sold upon like notice. The Lender may,
however, instead of exercising the power of sale herein
conferred upon it, proceed by a suit or suits at law or in
equity to collect all amounts due upon the Collateral or to
foreclose the pledge and sell the Collateral or any portion
thereof under a judgment or decree of a court or courts of
competent jurisdiction, or both.
(e) Proceed against the Borrower on one or more of the Notes.
(f) Enforce one or more of the Mortgages.
(g) Exercise any rights granted under the Loan Documents
permitting the Lender to enter into possession of one or more
of the Retail Facilities and in furtherance thereof operate
the same or engage a third party operator to enter into and
operate one or more of the Retail Facilities.
5.3 Waivers by the Borrower. Except as otherwise provided for in
this Agreement and applicable law, Borrower waives (iii) presentment, demand and
protest and notice of presentment, dishonor, notice of intent to accelerate and
notice of acceleration, (iv) all rights to notice and a hearing prior to
Lender's taking possession or control of, or to Lender's replevy, attachment or
levy upon, the Assets or any bond or security which might be required by any
court prior to allowing Lender to exercise any of its remedies, and (v) the
benefit of all valuation, appraisal and exemption laws. The Borrower
acknowledges that it has been advised by counsel of its choice with respect to
this Agreement, the other Loan Documents and the transactions evidenced by this
Agreement and the other Loan Documents.
5.4 Upon an Event of Default, the Lender shall have the right at
any time and from time to time, without notice, to set-off and to appropriate or
apply any and all property or indebtedness of any kind at any time held or owing
by the Lender to or for the credit of the account of the Borrower against and on
account of the obligations and liabilities of the Borrower under the Note and
this Agreement, irrespective of whether or not the Lender shall have made any
demand hereunder and whether or not said obligations and liabilities shall have
matured.
6. MISCELLANEOUS
6.1 Complete Agreement; Modification of Agreement; Sale of
Interest
(a) The Loan Documents constitute the complete agreement
between the parties with respect to the subject
matter hereof and may not be
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modified, altered or amended except by an agreement
in writing signed by the Borrower and Lender.
(b) Borrower hereby consents to Lender's sale,
assignment, transfer or other disposition, at any
time or times, of any of the Loan Documents or of any
portion thereof or interest therein, including,
without limitation, the sale of participation rights
in the Loan and Loan Documents to commercial banks,
savings banks, pension plans, savings and loan
associations, insurance companies, other financial
institutions and lenders engaged in the commercial
banking market place. The Borrower agrees to use its
best efforts to assist and cooperate with Lender in
any manner reasonably requested by lender to effect
the sale of any participation in, or any assignment
of the Loan, any of the Loan Documents or of any
portion thereof or interest therein, including,
without limitation, assistance in the preparation of
appropriate disclosure documents or placement
memoranda, provided that Borrower shall not be
required to participate in the selling process in a
manner which could rise to liability on their part
under Sections 11 or 12 of the Securities Act of 1933
or other federal or state securities laws.
(c) No amendment or waiver of any provision of this
Agreement or the Notes or any other Loan Document,
nor consent to any departure by the Borrower
therefrom, or release of any Asset from the Lien
granted to Lender hereunder, shall in any event be
effective unless the same shall be in writing and
signed by Lender, and then such waiver or consent
shall be effective only in the specific instance and
for the specific purpose for which given.
6.2 Fees and Expenses. Borrower shall pay all reasonable
out-of-pocket expenses of Lender in connection with the preparation of the Loan
Documents (including all environmental appraisals and structural appraisals and
the administration of the Loan made pursuant hereto (including the reasonable
fees and expenses of all of its counsel and advisors retained in connection with
the Loan Documents and the transactions contemplated thereby and advice in
connection therewith) and all fees and expenses of Lender. If, any time or
times, regardless of the existence of an Event of Default (except with respect
to paragraphs (a) and (d) below, which shall be subject to an Event of Default
having occurred and be continuing), Lender shall employ counsel or other
advisors for advice or other representation or shall incur reasonable legal or
other costs and expenses in connection with:
(a) any amendment, modification or waiver of, or consent
with respect to, any of the Loan Documents or advice
in connection with the administration of the Loan
made pursuant hereto or its rights hereunder or
thereunder;
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(b) any litigation, content, dispute, suit, proceeding or
action (whether instituted by Lender, the Borrower,
any Indemnitor or any other Person) in any way
relating to the Assets, any of the Loan Documents or
any other agreements to be executed or delivered in
connection herewith (including, without limitation,
any lenders' liability claim, contest, dispute, suit,
proceeding or action);
(c) any attempt to enforce any rights of Lender against
the Borrower or any other Person, that may be
obligated to Lender by virtue of any of the Loan
Documents;
(d) any attempt to verify, protect, collect, sell,
liquidate or otherwise dispose of the Assets;
then, and in any such event, the reasonable attorneys' and other parties' fees
arising from such services, including those of any appellate proceedings, and
all reasonable expenses, costs, charges and other fees incurred by such counsel
and others in any way or respect arising in connection with or relating to any
of the events or actions described in this Section shall be payable, on demand,
by Borrower to Lender and shall be additional obligations secured under this
Agreement and the other Loan Documents. Without limiting the generality of the
foregoing, such expenses, costs, charges and fees may include: reasonable
paralegal fees, costs and expenses; accountants' and investment bankers' fees,
costs and expenses; court costs and expenses; photocopying and duplicating
expenses; court reporter fees, costs and expenses; long distance telephone
charges; air express charges; telegram charges; secretarial overtime charges;
and expenses for travel, lodging and food paid or incurred in connection with
the performance of such legal services. Notwithstanding anything in this
Agreement or any of the Loan Documents to the contrary, all references to the
collection of attorneys' fees and costs shall mean attorneys' fees and costs
actually incurred, and while such attorneys' fees shall be reasonable in amount,
such reasonable amount shall not be determined by the statutory provision for
attorneys' fees nor the definition of reasonable attorneys fees under OCGA
ss. 13-1-11.
6.3 No Waiver by Lender. Lender's failure, at any time or times, to
require strict performance by Borrower of any provision of this Agreement and
any of the other Loan Documents shall not waive, affect or diminish any right of
Lender thereafter to demand strict compliance and performance therewith. Any
suspension or waiver by Lender of an Event of Default by Borrower under the Loan
Documents shall not suspend, waive or affect any other Event of Default by
Borrower under this Agreement and any of the other Loan Documents whether the
same is prior or subsequent thereto and whether of the same or of a different
type. None of the undertakings, agreements, warranties, covenants and
representations contained in this Agreement or any of the other Loan Documents
shall be deemed to have been suspended or waived by Lender, unless such
suspension or waiver is by an instrument in writing signed by an officer of
Lender and directed to Borrower specifying such suspension or waiver.
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6.4 Remedies. Lender's rights and remedies under this Agreement
shall be cumulative and non-exclusive of any other rights and remedies which
Lender may have under any other agreement, including, without limitation, the
Loan Documents, by operation of law or otherwise.
6.5 WAIVER OF JURY TRIAL. BORROWER HEREBY WAIVES TRIAL BY JURY AND
RIGHTS OF SET-OFF IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION
WITH, OR ARISING OUT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, THE
OBLIGATIONS OR THE COLLATERAL, OR ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT
HERETO OR THERETO, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING, BETWEEN
BORROWER AND THE LENDER. BORROWER CONFIRMS THAT THE FOREGOING WAIVERS ARE
INFORMED AND FREELY MADE.
6.6 GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY
OF THE LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF GEORGIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE,
WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS, AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
6.7 CONSENT TO JURISDICTION AND VENUE; SERVICE OF PROCESS.
BORROWER AGREES THAT, IN ADDITION TO ANY OTHER COURTS THAT MAY HAVE JURISDICTION
UNDER APPLICABLE LAWS, ANY ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE COMMENCED IN ANY STATE
OR FEDERAL COURT LOCATED IN THE STATE OF GEORGIA, AND BORROWER CONSENTS AND
SUBMITS IN ADVANCE TO SUCH JURISDICTION AND AGREES THAT VENUE WILL BE PROPER IN
SUCH COURTS ON ANY SUCH MATTER. THE CHOICE OF FORUM SET FORTH IN THIS SECTION
SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN SUCH
FORUM, OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE THE SAME, IN
ANY APPROPRIATE JURISDICTION.
6.8 Notices. Any notices and other communications permitted or
required by the provisions of this Mortgage (except for telephonic notices
expressly permitted) shall be in writing and shall be deemed to have been
properly given or served by depositing the same with the United States Postal
Service, or any official successor thereto, designated as Registered or
Certified Mail, Return Receipt Requested, bearing adequate postage, or delivery
by reputable private carrier such as Federal Express, Airborne, DHL or similar
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overnight delivery service, and addressed as hereinafter provided. Each such
notice shall be effective upon being deposited as aforesaid. The time period
within which a response to any such notice must be given, however, shall
commence to run from the date of receipt of the notice by the addressee thereof.
Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to be receipt of
the notice sent. By giving to the other party hereto at least ten (10) days'
notice thereof, either party hereto shall have the right from time to time and
at any time during the term of this Mortgage to change its address and shall
have the right to specify as its address any other address within the United
States of America.
Each notice to Lender shall be addressed as follows:
General Electric Capital Assurance Company
P. O. Xxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000
ATTN: Real Estate Department
Each notice to Borrower shall be addressed as follows:
IRT Property Company
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000
IRT Alabama, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000
6.9 Survival. The representations and warranties in this Agreement
shall survive the execution, delivery and acceptance hereof by the parties
hereto and the closing of the transactions described herein or related hereto.
6.10 Section Titles. The Section titles and Table of Contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
6.11 Counterparts. It is understood and agreed that this Agreement
may be executed in several counterparts, each of which shall, for all purposes,
be deemed an original and all of such counterparts, taken together, shall
constitute one and the same agreement, even though all of the parties hereto may
not have executed the same counterpart of this Agreement.
6.12 Siegen Village Tract. Borrower and Lender acknowledge that
Borrower may sell a tract of land adjacent to Siegen Village Retail. In the
event of such a sale, Lender shall cooperate in good faith with Borrower for the
purpose of creating such use restrictions and easements between Siegen Village
Retail and the adjacent parcel as Borrower deems reasonable or necessary to
satisfy the business and/or legal requirements
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of Borrower and/or the purchaser of the adjacent tract, including those with
respect to use restrictions, parking, ingress and egress and easements necessary
to comply with applicable law or to provide utility services to either Siegen
Village Retail or the adjacent tract. All such easements may be expressly made
superior to the Mortgage.
Executed by the parties hereto.
IRT PROPERTY COMPANY
By: /s/ Xxx X. Xxxxxxxx
---------------------------------
Its: Senior Vice President
---------------------------------
IRT ALABAMA, INC.
By: /s/ W. Xxxxxxxx Xxxxx III
---------------------------------
Its: Vice President
---------------------------------
GENERAL ELECTRIC CAPITAL
ASSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Its: Vice President
---------------------------------
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