WHEN RECORDED MAIL TO:
XXXXXX & BIRD
000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
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DEED TO SECURE DEBT
FROM
XXXXXXX BRIDGE PARTNERS, L.P.
AS GRANTOR, ("BORROWER")
TO ALLSTATE LIFE INSURANCE COMPANY
AS GRANTEE, ("LENDER")
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THIS INSTRUMENT IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS.
THE NAMES OF THE DEBTOR AND THE SECURED PARTY, THE MAILING ADDRESS OF THE
SECURED PARTY FROM WHICH INFORMATION CONCERNING THE SECURITY INTEREST MAY
BE OBTAINED, THE MAILING ADDRESS OF THE DEBTOR AND A STATEMENT INDICATING
THE TYPES, OR DESCRIBING THE ITEMS, OF COLLATERAL, ARE DESCRIBED HEREIN, IN
COMPLIANCE WITH THE REQUIREMENTS OF THE UNIFORM COMMERCIAL CODE, OFFICIAL
CODE OF GEORGIA ANNOTATED SECTION 11-9-402.
This Deed to Secure Debt secures the indebtedness of that certain Note
of even date herewith executed by XXXXXXXX and payable to the order of
LENDER in the principal sum of Six Million Seven Hundred Thousand Dollars
($6,700,000.00) with interest thereon and all late charges, loan fees,
commitment fees, and prepayment premiums, maturing November 1, 1995, unless
extended pursuant to the Note.
DEED TO SECURE DEBT, ASSIGNMENT OF LEASES,
RENTS AND CONTRACTS, SECURITY AGREEMENT
AND
FIXTURE FILING
PAGE
ARTICLE SECTION DESCRIPTION NUMBER
------- ------- ----------- ------
I COVENANTS OF BORROWER
1.01 Performance of Obligations Secured 4
1.02 Insurance 5
1.03 Condemnation and Insurance Proceeds 6
1.04 Taxes, Liens and other Items 11
1.05 Assignment of Leases, Contracts, 11
Rents and Profits
1.06 Acceleration Upon Sale or 15
Encumbrance
1.07 Preservation and Maintenance of 16
Subject Property
1.08 Offset Certificates 16
1.09 Protection of Security; Costs 17
and Expenses
1.10 BORROWER'S Covenants Respecting 17
Collateral
1.11 Covenants Regarding Financial 19
Statements
1.12 Covenants of BORROWER 20
1.13 Additional Encumbrances on the
Subject Property 21
II EVENTS OF DEFAULT
2.01 Monetary and Performance Defaults 24
2.02 Bankruptcy, Insolvency, Dissolution 25
2.03 Misrepresentation 25
2.04 Default under Subordinate Loans 25
III REMEDIES
3.01 Acceleration 25
3.02 Entry 26
3.03 Judicial Action 27
3.04 Power of Sale 27
3.05 Rescission of Notice of Default 29
3.06 XXXXXX'S Remedies Respecting 29
Collateral
PAGE
ARTICLE SECTION DESCRIPTION NUMBER
------- ------- ----------- ------
3.07 Proceeds of Sales 29
3.08 Waiver of Marshalling, Right of 30
Redemption Homestead and
Valuation
3.09 Remedies Cumulative 30
3.10 Nonrecourse 31
3.11 Performance by LENDER 31
IV MISCELLANEOUS
4.01 Severability 32
4.02 Certain Charges and Brokerage
Fees 32
4.03 Notices 33
4.04 BORROWER Not Released; Certain 33
LENDER Acts
4.05 Inspection 34
4.06 Reconveyance or 34
Cancellation
4.07 Statute of Limitations 34
4.08 Interpretation 34
4.09 Consent; Delegation to Subagents 35
4.10 Successors and Assigns 35
4.11 Governing Law 35
4.12 Changes in Taxation 35
4.13 Maximum Interest Rate 35
4.14 Time of the Essence 36
4.15 Reproduction of Documents 36
4.16 Request for Notices 36
4.17 No Oral Modifications 37
SIGNATURE PAGE
Exhibit A - Legal Description of Land
Exhibit B - Permitted Exceptions
DEED TO SECURE DEBT, ASSIGNMENT OF LEASES, RENTS AND CONTRACTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED TO SECURE DEBT, ASSIGNMENT OF LEASES, RENTS AND CONTRACTS,
SECURITY AGREEMENT AND FIXTURE FILING ("Security Deed") is made as of this
5th day of October, 1990, from XXXXXXX BRIDGE PARTNERS, L.P., a Georgia
limited partnership, whose mailing address is c/o Xxxxx-Xxxxxxx, Inc., 1815
The Exchange, Atlanta, Georgia 30339, Attention: Xxxx X. Xxxxx and Xxxx
Xxxxxxx (herein "BORROWER"), to ALLSTATE LIFE INSURANCE COMPANY, a
corporation, whose mailing address is 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxx
Xxxx - X0X, Xxxxxxxxxx, Xxxxxxxx, 00000, as Grantee (herein "LENDER").
XXXXXXXX, in consideration of the indebtedness herein recited, hereby
irrevocably grants, bargains, sells, conveys, transfers and assigns to
LENDER, its successors and assigns, with power of sale and right of entry
and possession, all of BORROWER's estate, right, title and interest in, to
and under that certain real property located in Xxxxxx County, Georgia,
more particularly described in Exhibit A attached hereto and incorporated
herein by this reference (the "Land");
TOGETHER with all of BORROWER's estate, right, title and interest in,
to and under all buildings, structures, improvements and fixtures now
existing or hereafter erected on the Land and all right, title and
interest, if any, of BORROWER in and to the streets and roads, opened or
proposed, abutting the Land to the center lines thereof, and strips within
or adjoining the Land, the air space and right to use said air space above
the Land, all rights of ingress and egress on or within the Land, all
easements, rights and appurtenances thereto or used in connection with the
Land, including, without limitation, air lateral support, alley and
drainage rights, all revenues, income, rents, cash or security deposits,
advance rental deposits, and other benefits thereof or arising from the use
or enjoyment of all or any portion thereof (subject however to the rights
and authorities given herein to BORROWER to collect and apply such
revenues, and other benefits), all interests in and rights, royalties and
profits in connection with all minerals, oil and gas and other hydrocarbon
substances thereon or therein, and water stock, all options to purchase or
lease, all development or other rights relating to the Land or the
operation thereof, or used in connection therewith, including all
BORROWER's right, title and interest in all fixtures, attachments,
partitions, machinery, equipment, building materials, appliances and goods
of every nature whatever now or hereafter located on, or attached to, the
Land, all of which, including replacements and additions thereto, shall, to
the fullest extent permitted by law and for the purposes of this Security
Deed, be deemed to be real property and, whether affixed or annexed thereto
or not, be deemed conclusively to be real property; and XXXXXXXX agrees to
execute and deliver, from time to time, such further instruments and
documents as may be required by LENDER to confirm the legal operation and
effect of this Security Deed on any of the foregoing. All of the foregoing
property described in this paragraph (the "Improvements") together with the
Land, shall be herein after referred to as the "Subject Property").
TOGETHER with all of XXXXXXXX's right, title and interest in the
following:
(a) All equipment, fixtures, inventory, goods, instruments,
appliances, furnishings, machinery, tools, raw materials, component parts,
work in progress and materials, and all other tangible personal property of
whatsoever kind, used or consumed in the improvement, use or enjoyment of
the Subject Property now or any time hereafter owned or acquired by
BORROWER, wherever located and all products thereof whether in possession
of BORROWER or whether located on the Subject Property or elsewhere;
(b) To the extent such general intangibles are assignable, all
general intangibles relating to design, development, operation, management
and use of the Subject Property, including, but not limited to, (i) all
names under which or by which the Subject Property may at any time be owned
and operated under any such names or any variant thereof, and all goodwill
in any way relating to the Subject Property and all service marks and
logotypes used in connection therewith, (ii) all permits, licenses,
authorizations, variances, land use entitlements, approvals, consents,
clearances, and rights obtained from governmental agencies issued or
obtained in connection with the Subject Property, (iii) all permits,
licenses, approvals, consents, authorizations, franchises and agreements
issued or obtained in connection with the use, occupation or operation of
the Subject Property, (iv) all materials prepared for filing or filed with
any governmental agency, and (v) the books and records of BORROWER relating
to construction, or operation of the Subject Property;
(c) All shares of stock or partnership interest or other
evidence of ownership of any part of the Subject Property that is owned by
BORROWER in common with others, including all water stock relating to the
Subject Property, if any, and all documents or rights of membership in any
owners' or members' association or similar group having responsibility for
managing or operating any part of the Subject Property provided, however,
that the foregoing shall not include any ownership interests in the
BORROWER;
(d) All accounts, deposit accounts, tax and insurance escrows
held pursuant to this Security Deed, accounts receivable, instruments,
documents, documents of title, general intangibles, rights to payment of
every kind, all of BORROWER's rights, direct or indirect, under or pursuant
to any and all construction, development, financing, guaranty, indemnity,
maintenance, management, service, supply and warranty agreements,
commitments, contracts, subcontracts, insurance policies, licenses and
bonds now or anytime hereafter arising from construction on the Land or the
use or enjoyment of the Subject Property to the extent such are assignable;
TOGETHER with all additions to, substitutions for and the products of
(a)-(d), and all proceeds, whether cash proceeds or noncash proceeds, and
including insurance and condemnation proceeds, received when any such
property (or the proceeds thereof) is sold, exchanged, leased, licensed, or
otherwise disposed of, whether voluntarily or involuntarily. Such proceeds
shall include any of the foregoing specifically described property of
BORROWER acquired with cash proceeds.
AND TOGETHER with, and without limiting the above items in (a)-(d),
all Goods, Accounts, Documents, Instruments, Money, Chattel Paper and
General Intangibles arising from or used in connection with the Subject
Property, as those terms are defined in the Uniform Commercial Code from
time to time in effect in the state in which the Subject Property is
located. (All of the foregoing property in (a)-(d) and this paragraph,
including such products and proceeds thereof, are collectively referred to
as "Collateral".)
The personal property in which LENDER has a security interest includes
goods which are or shall become fixtures on the Subject Property. It is
the intention and understanding of BORROWER that this Security Deed shall
be a security agreement pursuant to the Uniform Commercial Code of the
State of Georgia. This Security Deed is intended to serve as a fixture
filing pursuant to the terms of the applicable provisions of the Uniform
Commercial Code of the state in which the Subject Property is located.
This filing is to be recorded in the real estate records of the appropriate
city, town or county in which the Subject Property is located. In that
regard, the following information is provided:
Names of Debtor: Xxxxxxx Bridge Partners, L.P.
Address of Debtor: See Section 4.16 hereof
Name of Secured Party: Allstate Life Insurance Company, an
Illinois insurance corporation
Address of Secured Party: See Section 4.16 hereof.
BORROWER warrants and agrees that there is no financing statement
covering the foregoing Collateral, the Subject Property, or any part
thereof, on file in any public office.
This Security Deed is given for the purpose of securing:
(a) The repayment of the indebtedness evidenced by that certain
Mortgage Note ("Note") of even date herewith executed by XXXXXXXX and
payable to the order of LENDER, in the principal sum of SIX MILLION SEVEN
HUNDRED THOUSAND DOLLARS ($6,700,000.00) with interest thereon, as provided
therein and all late charges, loan fees, commitment fees, Prepayment
Premiums (as described in the Note), and all extensions, renewals,
modifications, amendments and replacements thereof;
(b) The payment of all other sums which may be advanced by or
otherwise be due to LENDER under any provision of this Security Deed or
under any other instrument or document referred to in clause (c) below,
with interest thereon at the rate provided herein or therein;
(c) The performance of each and every covenant and agreement of
BORROWER contained (i) herein, in the Note, or in any note evidencing a
Future Advance (as hereinafter defined), and (ii) in the obligations of
BORROWER upon any and all pledge or other security agreements, loan
agreements, disbursement agreements, supplemental agreements, assignments
(both present and collateral) and all instruments of indebtedness or
security now or hereafter executed by BORROWER in connection with any
indebtedness referred to in clauses (a), (b) or (d) of this paragraph or
for the purpose of supplementing or amending this Security Deed or any
instrument secured hereby, including, without limitation, the commitment
letter between BORROWER and XXXXXX dated August 6, 1990 ("Commitment
Letter") (all of the foregoing in this clause (ii), as the same may be
amended, modified or supplemented from time to time, being referred to
hereinafter as "Related Agreements") and all costs and expenses, including
reasonable attorneys' fees with respect to all such documents; and
(d) The repayment of any other loans or advances, with interest
thereon, hereafter made to BORROWER (or any successor in interest to
BORROWER as the owner of the Subject Property or any part thereof) by
XXXXXX when the promissory note evidencing the loan or advance specifically
states that said note is secured by this Security Deed, together with all
extensions, renewals, modifications, amendments and replacements thereof
(herein and in the Related Agreements "Future Advance").
TO HAVE AND TO HOLD the Subject Property to the use, benefit, and
behoof of LENDER, forever, in Fee Simple. This Security Deed is intended
to operate and is to be construed as a deed passing title to the Subject
Property to 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 the payment of the indebtedness described
above.
BORROWER warrants that XXXXXXXX has good title to the Subject
Property, is lawfully seized and possessed of the Subject Property and
every part thereof, and has the right to convey same; that the Subject
Property is unencumbered except as may be expressly provided in the
Permitted Exceptions described in Exhibit B attached hereto and
incorporated herein by this reference (the "Permitted Exception"); and that
BORROWER will forever warrant and defend title to the Subject Property unto
LENDER against the claims of all persons whomsoever.
ARTICLE I
COVENANTS OF BORROWER
To protect the security of this Security Deed, BORROWER covenants and
agrees as follows:
1.01. Performance of Obligations Secured. XXXXXXXX shall promptly
pay when due the principal of and interest on the indebtedness evidenced by
the Note, the principal of and interest on any Future Advance, and any
prepayment and late charges provided for in the Note or in any note
evidencing a Future Advance, and shall further perform fully and in a
timely manner all other obligations of BORROWER contained herein or in the
Note or in any note evidencing a Future Advance or in any of the Related
Agreements.
1.02. Insurance. For all times during the period there remains any
indebtedness under the Note, or any and all other indebtedness (including
without limitation Future Advances) secured by this Security Deed, BORROWER
shall keep the Subject Property insured against all risks or hazards as
LENDER may require. Such insurance shall be in policy form, amount and
coverage satisfactory to LENDER, including, but not limited to: (i) Fire
and extended coverage property damage insurance, including, but not limited
to all risk and earthquake insurance and boiler and machinery insurance, if
applicable, in an amount equal to the full replacement value of the
Improvements, without deducting for depreciation, containing a waiver of
subrogation clause and a deductible amount acceptable to LENDER. Said
insurance shall name XXXXXX under a standard noncontributory mortgagee
clause or otherwise directly insure LENDER's interest in the Subject
Property. All losses under said insurance shall be payable to LENDER in
the manner provided in Section 1.03 hereof; (ii) Comprehensive general
liability insurance, in such form, amount and deductible satisfactory to
LENDER, and naming LENDER under a standard noncontributory mortgagee clause
or as additional insured covering XXXXXX's interest in the Subject
Property; (iii) Business interruption or rent loss insurance in an amount
at least equal to 100% of the annual debt service on the Note, the annual
debt service on any other financing permitted by LENDER, ground rents, if
any, and operating expenses for the Subject Property. Business
interruption or rent loss insurance shall contain a standard
noncontributory mortgagee clause in favor of and in form acceptable to
LENDER; (iv) Flood insurance required by and obtainable through the
National Flood Insurance Program sufficient to cover any damage which may
be anticipated in the event of flood unless BORROWER has provided LENDER
evidence satisfactory to LENDER that no portion of the Subject Property is
located within the boundaries of the 100 year flood plain; and (v) so
called "dram shop" insurance if alcoholic beverages are sold on the Subject
Property. All policies of insurance required under this Section 1.02 shall
be with a company or companies with a policy rating of A and financial
rating of at least Class X in the most current edition of Best's Insurance
Reports and authorized to do business in the state in which the Subject
Property is located. All policies of insurance shall provide that they
will not be cancelled or modified without thirty (30) days' prior written
notice to LENDER. True copies of the above mentioned insurance policies or
certificates of such insurance satisfactory to LENDER shall be delivered to
and held by LENDER. True copies of all renewal and replacement policies
shall be delivered to LENDER at least thirty (30) days before the
expiration of the expiring policies. If any renewal or replacement policy
is not obtained as required herein, LENDER is authorized to obtain the same
in BORROWER's name and at BORROWER's expense. LENDER shall not by the fact
of failing to obtain any insurance, incur any liability for or with respect
to the amount of insurance carried, the form or legal sufficiency of
insurance contracts, solvency of insurance companies, or payment or defense
of lawsuits, and BORROWER hereby expressly assumes full responsibility
therefor and all liability, if any, with respect thereto.
1.03. Condemnation and Insurance Proceeds.
(a) Immediately upon obtaining knowledge of the commencement or
threat of any action in connection with (i) any condemnation or other
taking ("Condemnation") of the Subject Property or any part thereof or (ii)
any conveyance in lieu of condemnation ("Taking") of the Subject Property
or any part thereof, BORROWER shall promptly notify LENDER in writing. In
any event, such notice shall be given to LENDER no more than ten (10) days
after BORROWER obtains knowledge of the commencement of or threat of a
Condemnation or Taking. LENDER shall have the right, but not the
obligation, to participate in any proceedings relating to any Condemnation
or Taking and may, in its sole discretion, consent or withhold its consent
to any settlement, adjustment, or compromise of any claims arising from the
Condemnation or Taking and no such settlement, adjustment or compromise
shall be final or binding upon LENDER without XXXXXX's prior consent.
If all or part of the Subject Property is taken by Condemnation or a
Taking, and no Event of Default (as hereinafter defined) then exists, and
LENDER in its reasonable judgment determines that the remainder of the
Subject Property, if any, cannot be operated as an economically viable
entity at substantially the same level of operations as immediately prior
to such Condemnation or Taking, then all proceeds of the Condemnation or
Taking ("Condemnation Proceeds") shall be paid over to LENDER and shall be
applied first toward reimbursement of the costs and expenses (including
reasonable attorneys' fees) of LENDER, if any, in connection with the
recovery of such proceeds, and then shall be applied in the sole and
absolute discretion of LENDER and without regard to the adequacy of its
security under this Security Deed: (i) to the payment or prepayment of all
or any portion of the Note but without the payment of the Prepayment
Premium unless an Event of Default exists, and/or (ii) to the performance
of any of the covenants contained in this Security Deed as LENDER may
determine, and/or (iii) to be released to the BORROWER.
If less than all of the Subject Property is taken by Condemnation or a
Taking, and no default then exists and LENDER in its reasonable judgment
determines that the remainder of the Subject Property can be operated as an
economically viable entity at substantially the same level of operations as
immediately prior to such Condemnation or Taking, then all Condemnation
Proceeds shall be at the option of LENDER, either released to BORROWER for
restoration of the Subject Property or deposited into an interest bearing
condemnation escrow fund under an escrow agreement and with an escrow agent
satisfactory to XXXXXX and BORROWER (the "condemnation escrow agent") and
BORROWER shall restore the Subject Property to a value at least equivalent
to its value immediately before the Condemnation or Taking. LENDER shall
have the right to obtain an opinion of an independent contractor or
engineer satisfactory to LENDER, at XXXXXXXX's expense, to estimate the
cost to restore the remaining portion of the Subject Property. If the
amount of the Condemnation Proceeds is not sufficient to restore the
Subject Property based on the contractor's or engineer's opinion, subject
to revision as restorations are made, BORROWER shall be obligated to
deposit in the condemnation escrow fund the difference between the
contractor's or engineer's estimate and the amount of the Condemnation
Proceeds or to deliver to the condemnation escrow agent an irrevocable,
unconditional letter of credit in form and issued by a financial
institution acceptable to LENDER or other cash equivalent acceptable to
LENDER. The BORROWER's funds, if necessary, and the Condemnation Proceeds
shall be deposited into the condemnation escrow fund and shall not be
released by the condemnation escrow agent unless used to restore the
Subject Property and unless a disbursement agent satisfactory to LENDER and
BORROWER approves such disbursements from time to time. The condemnation
escrow agreement shall provide that the condemnation escrow agent shall not
disburse funds to BORROWER unless and until: (i) LENDER has approved the
plans and specifications for the restoration of the Subject Property; (ii)
XXXXXXXX has executed a contract with a general contractor acceptable to
LENDER for the restoration of the Subject Property; (iii) the general
contractor has submitted lien waivers and/or releases, executed by the
general contractor and all subcontractors; (iv) BORROWER has furnished
LENDER with an endorsement to its title policy showing no additional
exceptions; and (v) BORROWER has submitted such other documents and
information as may be requested by XXXXXX to determine that the work to be
paid for has been performed in accordance with the plans and specifications
approved by XXXXXX. If any requisition for payment of work performed is
for an amount in excess of the sum then remaining in the condemnation
escrow fund, BORROWER shall advance the requisite amount in cash to the
condemnation escrow fund immediately upon written request from the
condemnation escrow agent or LENDER. The cost of such condemnation escrow
and services of the independent contractor or engineer shall be paid by
XXXXXXXX.
If an Event of Default exists at the time that the Subject Property is
Condemned or at the time of a Taking or at the time of payment of any
Condemnation Proceeds, all Condemnation Proceeds and any interest earned
thereon shall be paid over either by the condemning authority directly to
LENDER or by the condemnation escrow agent to LENDER and shall be applied
first toward reimbursement of the costs and expenses of LENDER (including
reasonable attorneys' fees), if any, in connection with the recovery of
such proceeds, and then shall be applied in the sole and absolute
discretion of LENDER and without regard to the adequacy of its security
under this Security Deed (i) to the payment or prepayment of all or any
portion of the Note including the Prepayment Premium described in the Note;
(ii) to the reimbursement of expenses incurred by LENDER in connection with
the restoration of the Subject Property; (iii) to the performance of any of
the covenants contained in this Security Deed as LENDER may determine
and/or (iv) if such Taking or Condemnation is partial, to be released to
the BORROWER so long as the proceeds are used to restore the Subject
Property or to reimburse BORROWER for costs and expenses incurred by
XXXXXXXX in such restoration. The amount released to BORROWER shall not be
deemed a payment of any portion of the unpaid balance of the Note. Any
prepayment of the Note or portion thereof pursuant to XXXXXX's election
under this paragraph shall be subject to the Prepayment Premium described
in the Note.
Any Condemnation Proceeds and any interest thereon remaining in the
condemnation escrow fund after restoration of the Subject Property pursuant
to the plans and specifications shall be paid to BORROWER if the BORROWER
is not then in default under this Security Deed, the Note or the Related
Agreements. If, however, BORROWER is in default under this Security Deed,
the Note or the Related Agreements, after payment of the costs to complete
the restoration of the Subject Property, the amount remaining in the
condemnation escrow fund may at the sole and absolute discretion of LENDER,
be retained by XXXXXX and applied to the payment or prepayment of all or
any principal and interest due under the Note and any excess shall be paid
to the BORROWER or in accordance with a final order, if any, of a court of
competent jurisdiction.
If BORROWER (i) abandons the Subject Property or (ii) fails to fulfill
any of BORROWER's obligations under this paragraph (a), then LENDER may, in
its sole and absolute discretion, collect and apply the Condemnation
Proceeds to the restoration of the Subject Property or to the payment or
prepayment of all or any portion of the Note.
At the time of any partial prepayment described in this subparagraph
(a), if BORROWER elects to exercise its right to prepay the portion of the
Note remaining unpaid after application of the Condemnation Proceeds, such
prepayment shall continue to be subject to the Prepayment Premium described
in the Note.
(b) Promptly upon obtaining knowledge of any casualty damage to
the Subject Property or any part thereof, or damage in any other manner,
BORROWER shall promptly notify LENDER in writing. In any event, such
notice shall be given to LENDER no more than five days after BORROWER
obtains knowledge of any damage to the Subject Property.
(1) If no Event of Default exists at the time the Subject
Property is damaged by fire or other casualty, BORROWER shall restore
the Subject Property to its condition immediately preceding such
damage and all proceeds of insurance shall be made available to
BORROWER for such restoration on the terms and conditions set forth as
follows:
(A) If the estimated cost of restoration of the Subject
Property is equal to or less than $50,000.00, BORROWER shall
promptly settle and adjust any claims under the insurance
policies which insure against such risks, receive and hold any
insurance proceeds and apply the same to the restoration of the
Subject Property, in which case BORROWER shall not be obligated
to establish an insurance escrow fund. LENDER shall have the
right to obtain an opinion of an independent contractor or
engineer satisfactory to LENDER to estimate the cost to restore
the Subject Property to its original condition, which opinion may
be revised, at BORROWER's expense, as restorations are made. If
the amount of the insurance proceeds is not sufficient to restore
the Subject Property based on an independent contractor's or
engineer's opinion, subject to revision as restorations are made,
BORROWER shall be obligated to pay the difference toward the
restoration of the Subject Property.
(B) If the estimated cost of restoration is greater than
$50,000.00, LENDER shall have the right, but not the obligation,
to participate in the settlement of the insurance claims and may,
in its sole discretion, consent or withhold its consent to any
settlement, adjustment, or compromise of such insurance claims
and no such settlement, adjustment, or compromise shall be final
or binding upon LENDER without its prior consent. Upon
settlement of insurance claims, the insurance proceeds shall be
deposited into an interest bearing insurance escrow fund. The
insurance escrow agent and the form of the insurance escrow
agreement shall be satisfactory to LENDER and BORROWER. If the
amount of the insurance proceeds is not sufficient to restore the
Subject Property based on an independent contractor's or
engineer's opinion described in Section 1.03(b)(1)(A), subject to
revision as restorations are made, BORROWER shall be obligated to
deposit in the insurance escrow fund the difference between the
contractor's or engineer's estimate and the amount of the
insurance proceeds or deliver to the insurance escrow agent an
irrevocable, unconditional letter of credit issued in a form and
by a financial institution acceptable to LENDER or other cash
equivalent acceptable to LENDER. The BORROWER's funds, if
necessary, and the insurance proceeds shall be deposited into the
insurance escrow fund and shall not be released by the insurance
escrow agent unless used to restore the Subject Property to its
original condition and unless a disbursement agent satisfactory
to LENDER and BORROWER approves such disbursements from time to
time. The insurance escrow agreement shall provide that the
insurance escrow agent shall not disburse funds to BORROWER
unless and until (i) LENDER has approved the plans and
specifications for the restoration of the Subject Property; (ii)
BORROWER has executed a contract acceptable to LENDER with a
general contractor acceptable to LENDER for the restoration of
the Subject Property; (iii) the general contractor has submitted
lien waivers and/or releases, executed by the general contractor
and all subcontractors which may be partial to the extent of
partial payments and which, in the case of releases, may be
contingent upon payment if the insurance escrow agent makes
payment directly to such contractor or subcontractor; (iv)
BORROWER has furnished LENDER with an endorsement to its title
policy showing no additional exceptions; and (v) BORROWER has
submitted such other documents and information as may be
requested by XXXXXX to determine that the work to be paid for has
been performed in accordance with the plans and specifications
approved by LENDER. If any requisition for payment of work
performed is for an amount in excess of the sum then remaining in
the insurance escrow fund, BORROWER shall advance the requisite
amount in cash to the insurance escrow fund immediately upon
written request from the disbursement agent or LENDER.
(2) If an Event of Default exists at the time that the Subject
Property is damaged by fire or other casualty, or at the time of
payment of any insurance proceeds or at any time during the period of
restoration of the Subject Property, all insurance proceeds and any
interest earned thereon shall be either paid over by the insurer
directly to LENDER or by the escrow agent to LENDER and shall be
applied first toward reimbursement of the costs and expenses of
LENDER, if any, in connection with the recovery of such proceeds, and
then shall be applied in the sole and absolute discretion of LENDER
and without regard to the adequacy of its security under this Security
Deed (i) to the payment or prepayment of all or any portion of the
Note, including the Prepayment Premium described in the Note; (ii) to
the reimbursement of expenses incurred by XXXXXX in connection with
the restoration of the Subject Property; (iii) to the performance of
any of the covenants contained in this Security Deed as LENDER may
determine and/or (iv) in accordance with the disbursement procedure
set forth in Section 1.03(b)(1)(A) to be released to the BORROWER so
long as the proceeds are used to restore the Subject Property or to
reimburse BORROWER for costs and expenses incurred by BORROWER in such
restoration. The amount released to BORROWER shall not be deemed a
payment of any portion of the unpaid balance of the Note.
(3) Any insurance proceeds and any interest thereon remaining in
the insurance escrow fund after payment of the costs to complete the
restoration of the Subject Property pursuant to the plans and
specifications shall be paid to BORROWER if the BORROWER is not then
in default under this Security Deed, the Note or Related Agreements.
If, however, there remains an Event of Default under this Security
Deed, the Note or Related Agreements after payment of the costs to
complete the restoration of the Subject Property, the amount remaining
in the insurance escrow fund may, at the sole and absolute discretion
of LENDER, be paid to the LENDER and applied to the payment or
prepayment of all or any principal and interest due under the Note,
including the Prepayment Premium described in the Note.
(4) If BORROWER (i) abandons the Subject Property, (ii) fails to
respond within 90 days to a settlement offer by the insurer, (iii)
fails to fulfill any of BORROWER's obligations under this paragraph
(b), including, but not limited to, the obligations to promptly settle
and adjust any insurance claims, to apply all insurance proceeds to
the restoration of the Subject Property, to fund any difference
between the contractor's or engineer's estimate and the amount of
insurance proceeds, and to fund in cash any differences between the
cost of restoration and the amount in the insurance escrow fund, or
(iv) fails to satisfy any condition to a disbursement of insurance
proceeds set forth in Section 1.06(b)(1)(B) within 30 days after
written notice from LENDER to BORROWER demanding such satisfaction,
then LENDER may at its sole and absolute discretion collect and apply
the insurance proceeds to the restoration of the Subject Property or
to the payment or prepayment of all or any portion of the Note,
including the Prepayment Premium described in the Note.
(5) Any prepayment of the Note or a portion thereof pursuant to
XXXXXX's election under this paragraph (B) shall not be subject to the
Prepayment Premium described in the Note unless an Event of Default
exists. At the time of any partial prepayment described in this
paragraph (b), if BORROWER elects to exercise its right to prepay the
portion of the Note remaining unpaid after application of the
insurance proceeds, such prepayments shall continue to be subject to
the Prepayment Premium described in the Note.
1.04. Taxes, Liens and other Items. BORROWER shall pay any and all
taxes, bonds, assessments, fees, liens, charges, fines, impositions and any
accrued interest or penalty thereon, and any and all other items which are
attributable to or affect the Subject Property by making payment prior to
delinquency directly to the payee thereof and promptly furnish copies of
paid receipts for these to LENDER. BORROWER shall promptly discharge or
bond any lien or encumbrance on the Subject Property whether said lien or
encumbrance has or may attain priority over this Security Deed or not.
This Security Deed shall be the sole encumbrance on the Subject Property
and, if with the consent of LENDER it is not the sole encumbrance, then it
shall be prior to any and all other liens or encumbrances on the Subject
Property. Provided that the priority of this Security Deed is not in any
way affected, BORROWER may in good faith protest the payment of any tax or
lien which it believes is unwarranted or excessive and may defer payment of
such tax pending conclusion of such contest if legally permitted to do so
and provided XXXXXX's security is not jeopardized in XXXXXX's sole opinion.
As further security for the payment of the Note and the payment of real
estate taxes, regular or special assessments and insurance premiums,
BORROWER shall be required to deposit 1/12 of the annual amounts of such
items as estimated by LENDER, with each monthly payment on the Note.
LENDER shall be furnished evidence to allow it to estimate such amounts,
including paid receipts or annual insurance premium statements, assessment
notices and tax receipts.
1.05. Assignment of Leases, Contracts, Rents and Profits.
(a) BORROWER hereby absolutely, presently and unconditionally
assigns, transfers, conveys and sets over to LENDER the following:
(1) All of the rents, income, profits, revenue, judgments,
condemnation awards, insurance proceeds, unearned insurance premiums
and any other fees or sums payable to BORROWER or any other person as
landlord and other benefits and rights of the Subject Property arising
from the use, occupancy, operation or management of all or any portion
thereof or from all the Leases (as defined in subparagraph (2)), and
any proceeds, deposits or security deposits relating thereto,
including, without limitation, any award to BORROWER made hereafter in
any court involving any of the tenants under the Leases in any
bankruptcy, insolvency, or reorganization proceeding in any state or
federal court, and XXXXXXXX's right to appear in any action and/or to
collect any such award or payment, and all payments by any tenant in
lieu of rent (collectively, "Rents and Profits");
(2) All of the leases of the Subject Property which are in
effect on the date hereof, and entered into or in effect from time to
time after the date hereof, including, without limitation, all
amendments, extensions, replacements, modifications and renewals
thereof and all subleases, concession agreements, any ground leases or
ground subleases and all other agreements affecting the same (the
"Leases");
(3) All right, title and interest of XXXXXXXX in and to all
Leases whether arising thereunder, by statute, at law, in equity, or
in any other way;
(4) All right, title and interest of XXXXXXXX in and to all
contracts, agreements, management, operating and maintenance
agreements, warranties, licenses, permits, guaranties and sales
contracts relating to the Subject Property and the Collateral (the
"Contracts").
(b) Notwithstanding the provisions of paragraph (a), prior to
the occurrence of any Event of Default hereunder, LENDER shall not exercise
any of the rights or powers conferred upon LENDER by this Section 1.05,
and, subject to Section 1.05(f), BORROWER shall have a license to manage
the Subject Property, to collect, receive and use all Rents and Profits, to
let the Subject Property and to take all such actions which a reasonable
and prudent landlord would take in enforcing the provisions of the Leases
or Contracts. This covenant is not intended to benefit any party other
than BORROWER. Upon the occurrence of an Event of Default (whether or not
LENDER shall have exercised its option to declare the Note immediately due
and payable), such license shall be automatically revoked without any
action required by LENDER and the Rents and Profits shall be paid directly
to LENDER; and LENDER may notify the tenants under the Leases or any other
parties in possession of the Subject Property, to pay the Rents and Profits
directly to LENDER at the address specified in Section 4.16. Rents and
Profits so paid to LENDER may be applied by XXXXXX, at XXXXXX's sole
discretion, to the payment of the costs and expenses of the operation of
the Subject Property, to the payment of accrued interest and principal on
the Note and/or to the prepayment of the Note, including the Prepayment
Premium defined in the Note, all in the order, manner and respective
amounts as LENDER shall from time to time determine.
(c) Upon the occurrence of an Event of Default, the LENDER shall
have the right but not the obligation to perform as landlord under the
Leases and as a party under the Contracts. The assignment of Rents and
Profits set forth herein constitutes an irrevocable direction and
authorization of all tenants under the Leases to pay all Rents and Profits
to LENDER upon demand and without further consent or other action by
BORROWER. BORROWER irrevocably appoints LENDER its true and lawful
attorney, at the option of LENDER at any time, to demand, receive and
enforce payment, to give receipts, releases and satisfactions, and to sue,
either in the name of BORROWER or in the name of LENDER, for all such Rents
and Profits and apply the same to the indebtedness secured by this Security
Deed.
(d) Neither the foregoing assignment of Rents and Profits,
Leases and Contracts to LENDER nor the exercise by LENDER of any of its
rights or remedies under Article III shall be deemed to make LENDER a
"mortgagee-in-possession" or otherwise liable in any manner with respect to
the Subject Property, unless XXXXXX, in person or by agent, assumes actual
possession thereof. Nor shall appointment of a receiver for the Subject
Property by any court at the request of LENDER or by agreement with
XXXXXXXX, or the entering into possession of the Subject Property by such
receiver, be deemed to make LENDER a "mortgagee-in-possession" or otherwise
liable in any manner with respect to the Subject Property.
(e) In the event LENDER collects and receives any Rents and
Profits under this Section 1.05 pursuant to any Monetary or Performance
Default as defined in Section 2.01 hereof, such collection or receipt shall
in no way constitute a curing of the Monetary or Performance Default.
(f) Without the prior written consent of LENDER, BORROWER shall
not (1) modify, amend, cancel or in any way alter the terms of the Leases
previously approved by LENDER or take any action under or with respect to
any such Leases which would materially decrease either the obligations of
the tenant thereunder or the rights or remedies of the landlord, or (2)
create or permit any lien or encumbrance which, upon foreclosure, would be
superior to any such Leases, or (3) in any other manner impair LENDER's
rights and interest with respect to the Rents and Profits, (4) pledge,
transfer, mortgage or otherwise encumber or assign the Leases, the
Contracts or the Rents and Profits, or (5) collect rents more than 30 days
prior to accrual or, (6) enter into any leases except that XXXXXX's prior
written approval shall not be required with respect to Leases which (i)
provide for a term of five (5) years or less and a market rental rate for
comparable properties within the Subject Property's market area, (ii) have
been negotiated at arm's length, (iii) are for less than ten percent (10%)
of the total rentable square feet in any buildings on the Subject Property,
and (iv) do not contain material modifications to the form of lease
previously approved by LENDER.
(g) BORROWER shall promptly give notice to LENDER of any
material default under any of the Leases together with a complete copy of
any notices delivered to or by the tenant as a result of such default.
LENDER shall have the right, but not the obligation, to cure any default of
BORROWER under any of the Leases and all amounts disbursed in connection
with said cure shall be deemed to be indebtedness secured hereby.
(h) LENDER shall have the right to approve any lease forms used
by BORROWER for lease of space in the Subject Property.
(i) BORROWER hereby represents, warrants and agrees that:
(i) BORROWER has the right, power and capacity to make this
assignment and that no person, firm or corporation or other entity
other than BORROWER has or will have any right, title or interest in
or to the Leases or the Rents and Profits;
(ii) BORROWER shall, at its sole cost and expense, perform
and discharge all of the obligations and undertakings of the landlord
under the Leases. BORROWER shall enforce the performance of each
obligation of the tenants under the Leases and will appear in and
prosecute or defend any action connected with the Leases or the
obligations of the tenants thereunder;
(xxx) XXXXXXXX agrees to assign and transfer to LENDER all
further Leases of the Subject Property, and to execute and deliver, at
the request of XXXXXX, all such further assurances and assignments as
LENDER shall from time to time require.
(j) LENDER shall not be obligated to perform or discharge, nor
does it hereby undertake to perform or discharge, any obligation, duty or
liability under the Leases or under or by reason of this assignment.
BORROWER shall and does hereby agree to indemnify LENDER for and to defend
and hold LENDER harmless from any liability, loss or damage which LENDER
may incur under the Leases or under or by reason of this assignment, and
from any claims whatsoever which may be asserted against LENDER by reason
of any alleged obligations or undertakings on XXXXXX's part to perform or
discharge any of the terms, covenants or agreements contained in the
Leases. Should LENDER incur any liability, loss or damage under the Leases
or under or by reason of this assignment, or in the defense of any of such
claims or demands, the amount thereof, including costs, expenses and
attorneys' fees, shall be secured by this Security Deed; and BORROWER shall
reimburse LENDER therefor immediately upon demand, and upon failure of
BORROWER to do so, XXXXXX may declare all sums so secured to be immediately
due and payable.
(k) LENDER may take or release other security, may release any
party primarily or secondarily liable for any indebtedness secured hereby,
may grant extensions, renewals or indulgences with respect to such
indebtedness, and may apply any other security therefor held by it to the
satisfaction of such indebtedness, without prejudice to any of its rights
hereunder.
(l) Nothing herein contained and no act done or omitted by
XXXXXX pursuant to the powers and rights granted it herein shall be deemed
to be a waiver by LENDER of its other rights and remedies under the Note
and this Security Deed, and this assignment is made and accepted without
prejudice to any of the other rights and remedies possessed by XXXXXX under
the terms thereof. The right of LENDER to collect said indebtedness and to
enforce any other security therefor held by it may be exercised by XXXXXX
either prior to, simultaneously with, or subsequent to any action taken by
it hereunder. It is the intent of both BORROWER and LENDER that this
assignment be supplementary to, and not in substitution of, any other
provision contained in this Security Deed giving LENDER any interest in or
rights with respect to the Leases or Rents and Profits.
(m) Neither this assignment nor pursuit of any remedy hereunder
by XXXXXX shall cause or constitute a merger of the interests of the tenant
and the BORROWER under any of the Leases such that any of the Leases hereby
assigned are no longer valid and binding legal obligations of the parties
executing the same.
(n) Upon the occurrence of an Event of Default, LENDER may, at
its option, without any action on its part being required and without in
any way waiving such default, take possession of the Subject Property and
have, hold, manage, lease and operate the same, on such terms and for such
period of time as LENDER may deem proper, and may collect and receive all
Rents and Profits, with full power to make, from time to time, all
alterations, renovations, repairs or replacements thereto as may seem
proper to LENDER, and to apply such Rents and Profits to the payment of (a)
the cost of all such alterations, renovations, repairs and replacements,
and all costs and expenses incident to taking and retaining possession of
the Subject Property, and the management and operation thereof, and keeping
the same properly insured; (b) all taxes, charges, claims, assessments, and
any other liens which may be prior to this Security Deed, and premiums for
insurance, with interest on all such items; and (c) the indebtedness
secured hereby; together with all costs and attorneys' fees, in such order
or priority as to any of such items as LENDER in its sole discretion may
determine, any statute, law, custom or use to the contrary notwithstanding.
Any amounts received by BORROWER or its agents in the performance of any
acts prohibited by the terms of this assignment, including but not limited
to any amounts received in connection with any cancellation, modification
or amendment of any of the Leases prohibited by the terms of this
assignment and any Rents and Profits received by BORROWER after the
occurrence of an Event of Default shall be held by BORROWER as trustee for
LENDER and all such amounts shall be accounted for to LENDER and shall not
be commingled with other funds of the BORROWER. Any person receiving any
portion of such trust funds shall receive the same in trust for LENDER as
if such person had actual or constructive notice that such funds were
impressed with a trust in accordance herewith.
(o) The receipt by XXXXXX of any Rents and Profits pursuant to
this assignment after the institution of foreclosure proceedings under this
Security Deed shall not cure any such Event of Default or affect such
proceedings or any sale pursuant thereto.
(p) BORROWER shall from time to time execute and deliver to
LENDER, upon demand, any writings that XXXXXX may reasonably deem necessary
to carry out the intent of Section 1.05 hereof or to enable LENDER to
enforce any rights hereunder.
(q) BORROWER shall complete the cure of a default by it under
the lease between BORROWER and Super Discount Markets, Inc. ("Cub") dated
November 20, 1987, within fifteen (15) days after notice from Cub, and
failure to do so shall be an Event of Default entitling LENDER to all its
remedies hereunder, including, without limitation, the remedies set forth
in Section 3.11 below.
1.06. Acceleration Upon Sale or Encumbrance. If BORROWER shall (i)
sell or convey the Subject Property or any part thereof, or any interest in
the Subject Property or in BORROWER; (ii) be divested of its title to the
Subject Property or any interest therein; (iii) further encumber the
Subject Property or the ownership interests in the BORROWER; (iv) enter
into any lease giving the tenant any option to purchase the Subject
Property or any part thereof; or (v) encumber, grant a security interest
in, transfer, permit the transfer of, or change or permit the change in the
ownership of shares of the BORROWER or any corporate general partner in
BORROWER or the amount of the general partnership interests in the general
partners of the BORROWER or the beneficiary thereof, without the prior
written consent of LENDER, then LENDER shall have the right, at its option,
to declare the indebtedness secured by this Security Deed, irrespective of
the maturity date specified in the Note, immediately due and payable.
Except as expressly consented to in writing by XXXXXX, BORROWER shall
not permit any additional encumbrances on the Subject Property.
1.07. Preservation and Maintenance of Subject Property. BORROWER
shall hire competent and responsive property managers who shall be
reasonably acceptable to LENDER. BORROWER or its property manager, if
applicable shall keep the Subject Property and every part thereof in good
condition and repair, in accordance with sound property management
practices and shall promptly and faithfully comply with and obey all laws,
ordinances, rules, regulations, requirements and orders of every duly
constituted governmental authority or agent having jurisdiction with
respect to the Subject Property. XXXXXXXX shall not permit or commit any
waste, impairment, or deterioration of the Subject Property, nor commit,
suffer or permit any act upon or use of the Subject Property in violation
of law or applicable order of any governmental authority, whether now
existing or hereafter enacted, or in violation of any covenants, conditions
or restrictions affecting the Subject Property or bring or keep any article
in the Subject Property or cause or permit any condition to exist thereon
which would be prohibited by or invalidate the insurance coverage required
to be maintained hereunder. BORROWER shall not make any material
structural changes or alterations to the Subject Property nor remove or
demolish the Improvements or any portion thereof without the prior written
consent of LENDER which approval shall not be unreasonably withheld.
BORROWER shall promptly restore any portion of the Subject Property which
may be damaged or destroyed. BORROWER shall promptly bond or discharge any
mechanics' liens against the Subject Property.
Unless required by applicable law or unless LENDER has otherwise first
agreed in writing, BORROWER shall not make or allow any changes which will
adversely affect the value of the Subject Property to be made in the nature
of the occupancy or use of the Subject Property or any part thereof for
which the Subject Property or such part was intended at the time this
Security Deed was delivered. BORROWER shall not initiate or acquiesce in
any change which will adversely affect the value of the Subject Property in
any zoning or other land use classification now or hereafter in effect and
affecting the Subject Property or any part thereof without in each case
obtaining XXXXXX's prior written consent thereto.
1.08. Offset Certificates. BORROWER, within three (3) days upon
request in person or within ten (10) days upon request by mail, shall
furnish a written statement duly acknowledged and notarized, of all amounts
due on any indebtedness secured hereby or secured by any of the Related
Agreements, whether for principal or interest on the Note or otherwise, and
stating whether any offsets or defenses exist against the indebtedness
secured hereby and covering such other matters with respect to any such
indebtedness as LENDER may reasonably require.
1.09. Protection of Security; Costs and Expenses. BORROWER shall
hire competent and responsible property managers which shall be reasonably
acceptable to LENDER. BORROWER and its property manager, if applicable,
shall appear in and defend any action or proceeding purporting to affect
the security of this Security Deed or any additional or other security for
the obligations secured hereby, or the rights or powers of the LENDER, and
shall pay all costs and expenses actually incurred, including, without
limitation, cost of evidence of title and actual attorneys' fees, in any
such action or proceeding in which LENDER may appear, and in any suit
brought by LENDER to foreclose this Security Deed or to enforce or
establish any other rights or remedies of LENDER hereunder or under any
other security for the obligations secured hereby. If BORROWER fails to
perform any of the covenants or agreements contained in this Security Deed,
or if any action or proceeding is commenced which affects LENDER's interest
in the Subject Property or any part thereof, including, eminent domain,
code enforcement, or proceedings of any nature whatsoever under any federal
or state law, whether now existing or hereafter enacted or amended,
relating to bankruptcy, insolvency, arrangement, reorganization or other
form of debtor relief, or to a decedent, then LENDER may, but without
obligation to do so and without notice to or demand upon BORROWER, perform
such covenant or agreement and compromise any encumbrance, charge or lien
which in the judgment of XXXXXX appears to be prior or superior hereto;
BORROWER further agrees to pay all expenses of XXXXXX actually incurred
(including reasonable and actual fees and disbursements of counsel)
incident to the protection or enforcement of the rights of LENDER
hereunder, and enforcement or collection of payment of the Note or any
Future Advance whether by judicial or nonjudicial proceedings, or in
connection with any bankruptcy, insolvency, arrangement, reorganization or
other debtor relief proceeding of BORROWER, or otherwise. Any amounts
disbursed by LENDER pursuant to this Section shall be additional
indebtedness of BORROWER secured by this Security Deed and each of the
Related Agreements as of the date of disbursement and shall bear interest
at the Contract Rate for the first five (5) business days after demand for
payment and thereafter at the Default Rate set forth in the Note, until
paid. All such amounts shall be payable by BORROWER immediately upon
demand. Nothing contained in this Section shall be construed to require
LENDER to incur any expense, make any appearance, or take any other action.
1.10. BORROWER's Covenants Respecting Collateral.
(a) BORROWER shall execute and deliver financing and
continuation statements covering the Collateral from time to time and in
such form as LENDER may require to perfect and continue the perfection of
XXXXXX's security interest with respect to such property, and BORROWER
shall pay all reasonable costs and expenses of any record searches for
financing statements LENDER may require;
(b) Without the prior written consent of XXXXXX, BORROWER shall
not create or suffer to be created any other security interest in the
Collateral, including replacements and additions thereto;
(c) Without the prior written consent of LENDER or except in the
ordinary course of business, BORROWER shall not sell, transfer or encumber
any of the Collateral, or remove any of the Collateral from the Subject
Property unless BORROWER shall promptly substitute and replace the property
removed with similar property of at least equivalent value on which LENDER
shall have a continuing security interest ranking at least equal in
priority to XXXXXX's security interest in the property removed;
(d) BORROWER shall (i) upon reasonable notice (unless an
emergency or Event of Default exists) permit LENDER and its representatives
to enter upon the Subject Property to inspect the Collateral and XXXXXXXX's
books and records relating to the Collateral and make extracts therefrom
and to arrange for verification of the amount of Collateral, under
procedures acceptable to LENDER, directly with XXXXXXXX's debtors or
otherwise at BORROWER's expense; (ii) promptly notify LENDER of any
attachment or other legal process levied against any of the Collateral and
any information received by BORROWER relative to the Collateral, BORROWER's
debtors or other persons obligated in connection therewith, which may in
any way affect the value of the Collateral or the rights and remedies of
LENDER in respect thereto; (iii) reimburse LENDER upon demand for any and
all costs actually incurred, including, without limitation, reasonable and
actual attorneys' and accountants' fees, and other expenses incurred in
collecting any sums payable by BORROWER under any obligation secured
hereby, or in the checking, handling and collection of the Collateral and
the preparation and enforcement of any agreement relating thereto; (iv)
notify LENDER of each location at which the Collateral is or will be kept,
other than for temporary processing, storage or similar purposes, and of
any removal thereof to a new location, including, without limitation, each
office of BORROWER at which records relating to the Collateral are kept;
(v) provide, maintain and deliver to LENDER originals or certified copies
of the policies of insurance and certificates of insurance insuring the
Collateral against loss or damage by such risks and in such amounts, form
and by such companies as LENDER may require and with loss payable to
LENDER, and in the event LENDER takes possession of the Collateral, the
insurance policy or policies and any unearned or returned premium thereon
shall at the option of LENDER become the sole property of LENDER; and (vi)
do all acts necessary to maintain, preserve and protect all Collateral,
keep all Collateral in good condition and repair and prevent any waste or
unusual or unreasonable depreciation thereof.
(e) Until LENDER exercises its right to collect proceeds of the
Collateral pursuant hereto, BORROWER will collect with diligence any and
all proceeds of the Collateral. If an Event of Default exists, any
proceeds received by BORROWER shall be held in trust for LENDER, and
BORROWER shall keep all such collections separate and apart from all other
funds and property so as to be capable of identification as the property of
LENDER and shall deliver to LENDER such collections at such time as LENDER
may request in the identical form received, properly endorsed or assigned
when required to enable LENDER to complete collection thereof.
(f) LENDER shall have all of the rights and remedies granted to
a secured party under the Uniform Commercial Code of the state in which the
Collateral is located, as well as all other rights and remedies available
at law or in equity. During the continuance of any Event of Default
hereunder or under the Note, LENDER shall have the right to take possession
of all or any part of the Collateral, to receive directly or through its
agent(s) collections of proceeds of the Collateral (including notification
of the persons obligated to make payments to BORROWER in respect of the
Collateral), to release persons liable on the Collateral and compromise
disputes in connection therewith, to exercise all rights, powers and
remedies which BORROWER would have, but for the security agreement
contained herein and in this Section 1.10, to all of the Collateral and
proceeds thereof, and to do all other acts and things and execute all
documents in the name of BORROWER or otherwise, deemed by LENDER as
necessary, proper and convenient in connection with the preservation,
perfection or enforcement of its rights hereunder; and
(g) During the continuance of any Event of Default hereunder or
under the Note, BORROWER shall, at the request of LENDER, assemble and
deliver the Collateral and books and records pertaining to the Subject
Property at a place designated by XXXXXX, and LENDER may, with reasonable
notice to BORROWER (unless an emergency or Event of Default exists), enter
onto the Subject Property and take possession of the Collateral. It is
agreed that public or private sales, for cash or on credit to a wholesaler
or retailer or investor, or user of collateral of the types subject to the
security agreement, or public auction, are all commercially reasonable
since differences in the sales prices generally realized in the different
kinds of sales are ordinarily offset by the differences in the costs and
credit risks of such sales. The proceeds of any sale of the Collateral
shall be applied first to the expenses of LENDER actually incurred in
retaking, holding, preparing for sale, selling or similar matters,
including reasonable and actual attorneys' fees.
1.11. Covenants Regarding Financial Statements. BORROWER shall keep
true books of record and account in which full, true and correct entries in
accordance with sound accounting practice and principles applied on a
consistent basis from year to year shall be made of all dealings or
transactions with respect to the Subject Property.
Within 90 days after the last day of each fiscal year of BORROWER
during the term of the Note, BORROWER shall deliver to LENDER unaudited
annual financial reports prepared in accordance with generally accepted
auditing standards and generally accepted accounting principles
consistently applied covering the operation of the Subject Property and the
financial condition of BORROWER for the previous fiscal year and a current
rent roll, all certified to LENDER by a managing general partner or chief
financial officer of BORROWER to be complete, correct and accurate. Within
90 days after the last day of each fiscal quarter of the BORROWER during
the term of the Note, XXXXXXXX shall also deliver to LENDER unaudited
financial reports prepared in accordance with generally accepted accounting
principles consistently applied covering the operation of the Subject
Property and the financial condition of BORROWER for the previous fiscal
quarter, certified to LENDER by the managing general partner or chief
financial officer of BORROWER to be complete, correct and accurate. Within
forty-five (45) days after the last day of each fiscal quarter during the
term of the Note, XXXXXXXX will also deliver to LENDER a current rent roll
of the Subject Property, certified to LENDER by the chief financial officer
or managing general partner of BORROWER to be complete, correct and
accurate. All reports shall include, without limitation, balance sheets
and statements of income and of partner's equity, if applicable, setting
forth in each case in comparative form the figures for the previous fiscal
quarter or year, as the case may be. The interim quarterly reports shall
also include a breakdown of all categories of revenues and expenses, and
any supporting schedules and data requested by XXXXXX. Each set of annual
or quarterly financial reports or quarterly rent rolls delivered to LENDER
pursuant to this Section 1.11 shall also be accompanied by a certificate of
the chief financial officer or the managing general partner of BORROWER,
stating whether any condition or event exists or has existed during the
period covered by the annual or quarterly reports which then constituted or
now constitutes an Event of Default under the Note or this Security Deed,
and if any such condition or event then existed or now exists, specifying
its nature and period of existence and what BORROWER did or proposes to do
with respect to such condition or event.
In the event such statements are not in a form reasonably acceptable
to LENDER or BORROWER fails to furnish such statements and reports, then
LENDER shall have the immediate and absolute right to audit the respective
books and records of the Subject Property and BORROWER at the expense of
XXXXXXXX.
1.12. Covenants of BORROWER. BORROWER covenants: (a) that no
substances, including without limitation, asbestos or any substance
containing asbestos and deemed hazardous under any Hazardous Material Law
(defined below), the group of organic compounds known as polychlorinated
biphenyls, flammable explosives, radioactive materials, chemicals known to
cause cancer or reproductive toxicity, pollutants, effluents, contaminants,
emissions or related materials and any items included in the definition of
hazardous or toxic waste, materials or substances ("Hazardous Materials")
under any law relating to environmental conditions and industrial hygiene,
including without limitation, the Resource Conservation and Recovery Act of
1976 ("RCRA"), 42 U.S.C. Section 6901 et seq., the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),
42 U.S.C. Sections 9601-9657, as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX"), the Hazardous Materials
Transportation Act, 49 U.S.C. Section 6901, et seq., the Federal Water
Pollution Control Act, 33 U.S.C. Sections 1251 et seq., the Clean Air Act,
42 U.S.C. Sections 741 et seq., the Clean Water Act, 33 U.S.C. Section
7401, et seq., the Toxic Substances Control Act, 15 U.S.C. Sections
2601-2629, the Safe Drinking Water Act, 42 U.S.C. Sections 300f-300j, and
all similar federal, state and local environmental statutes, ordinances and
the regulations, orders, decrees now or hereafter promulgated thereunder
(collectively, the "Hazardous Material Laws"), shall be installed, used,
generated, manufactured, treated, handled, refined, produced, processed,
stored or disposed of, in, on or under the Subject Property, including,
without limitation, the surface and subsurface waters of the Subject
Property; (b) that no activity shall be undertaken on the Subject Property
which would cause (i) the Subject Property to become a hazardous waste
treatment, storage or disposal facility as such terminology is defined and
classified under any Hazardous Material Law, (ii) a release or threatened
release of Hazardous Material from the Subject Property in violation of any
Hazardous Material Law, or (iii) the discharge of Hazardous Material into
any watercourse, body of surface or subsurface water or wetland, or the
discharge into the atmosphere of any Hazardous Material which would require
a permit under any Hazardous Material Law and for which no such permit has
been issued; (c) that no activity shall be undertaken or permitted to be
undertaken, by the BORROWER on the Subject Property which would result in a
violation under any Hazardous Material Law, (d) to obtain and deliver to
LENDER, within a reasonable time following completion of the actions as
have been required to be taken by the appropriate governmental agency,
certifications of engineers or other professionals reasonably acceptable to
LENDER, in form and substance reasonably satisfactory to LENDER, certifying
that all necessary and required actions to clean up, remove, contain,
prevent and eliminate all releases or threats of release of Hazardous
Materials on or about the Subject Property to the levels required by the
appropriate governmental agencies have been taken, and that upon completion
of such action, the Subject Property is, to the knowledge of such
professional, then in compliance with applicable Hazardous Material Laws as
then in effect and applicable to such actions.
1.13. Additional Encumbrances on the Subject Property.
Notwithstanding any provision in the Note, this Security Deed or the
Related Agreements to the contrary, BORROWER may, provided that no event
has occurred which is or with notice or the passage of time or both, could
become a default under the Note, this Security Deed or the Related
Agreements, encumber the Subject Property with a sole additional mortgage
to a subordinate mortgagee ("Subordinate Mortgagee") to secure secondary
indebtedness (the "Second Loan") in form and content satisfactory to LENDER
in XXXXXX's reasonable discretion, under the following conditions:
(a) The amount of Second Loan when added to the unpaid balance of the
Note, shall be no more than ninety percent (90%) of the value
established in a then-current MAI appraisal of the Subject
Property made at BORROWER's expense by a then-currently certified
MAI appraiser mutually satisfactory to LENDER and BORROWER.
(b) The ratio of Net Operating Income, as defined in this Section
1.13, to annual debt service due under the Note and the Second
Loan (calculated as though the Second Loan were already in
place), shall be no less than 110% for the 12 month period ending
30 days before the payment date of the recording of the Second
Loan documents.
(c) LENDER may reinstate its rights to require escrow deposits of
real estate taxes and assessments and insurance premiums.
(d) The Subordinate Mortgagee shall expressly acknowledge the
priority of the debt, liens and security interests of the loan
secured by this Security Deed ("Allstate Loan") over the debt,
liens and security interests of the Second Loan, in a
subordination agreement between LENDER and the Subordinate
Mortgagee satisfactory in form and substance to LENDER
("Subordination Agreement"). Failure to include any of the
following provisions in the Subordination Agreement shall
constitute a default under the Note and this Security Deed. The
Subordination Agreement shall provide, without limitation, that:
(i) The Subordinate Mortgagee shall give LENDER notice of any
default by BORROWER under the Second Loan at the time such
notice is given to BORROWER, copies of all further notices
to BORROWER relating to such default and copies of any
foreclosure proceedings involving the BORROWER.
(ii) LENDER may, without affecting the subordination of the
Second Loan (1) release or compromise any obligation in the
Note, this Security Agreement or the Related Agreements,
(2) release its liens in, or surrender, release or permit
any substitution or exchange of all or any part of any
properties securing repayment of the Note or (3) retain or
obtain a lien in any property to further secure payment of
the Note.
(iii) LENDER shall give the Subordinate Mortgagee notices of
monetary default under the Allstate Loan and shall give the
Subordinate Mortgagee copies of any notices of nonmonetary
default under the Note, this Security Deed and the Related
Agreements. The Subordinate Mortgagee shall have the right
to cure (a) monetary defaults by BORROWER within ten days
after notice is sent to the Subordinate Mortgagee and (b)
nonmonetary defaults by BORROWER within the time periods
allowed BORROWER. Failure to give such notices shall not
interfere with any of LENDER's rights under the Note, this
Security Deed and the Related Agreements. LENDER shall not
be obligated to give the Subordinate Mortgagee notices of
(1) any increase, amendment, deferral, extension,
consolidation, or supplement ("Modification") to the Note,
this Security Deed and the Related Agreements if such
Modification does not increase the principal amount of the
Note, reduce the term of the Note or increase the interest
rate on the Note, except as otherwise expressly permitted
under the Allstate Loan, provided that LENDER may, without
notice to the Subordinate Mortgagee, enter into
Modifications which provide for increases in the Allstate
Loan resulting from actions by LENDER to protect the
security of this Security Deed, increases for amounts
expended by LENDER to remedy a default of BORROWER under
the Allstate Loan, increases to work out repayment of the
Note due to BORROWER's default, and increases representing
deferrals of interest or other charges payable by BORROWER
under the Note; or (2) any cancellation, extension,
modification, renewal or amendment of any of the Leases.
(iv) The commencement of foreclosure proceedings or other
remedial action under the Second Loan by the Subordinate
Mortgagee, shall constitute a default under the Allstate
Loan at the time the Subordinate Mortgagee takes such
enforcement or remedial action.
(v) All amounts due to the Subordinate Mortgagee by BORROWER
under the Second Loan (including interest and/or principal
payments or prepayments, assignments of leases and rents,
rights with respect to insurance proceeds and condemnation
awards, advances and expenses with interest), shall at all
times be wholly subordinate in right of payment to the
indebtedness of the BORROWER evidenced by the Allstate
Loan. All the liens, security interests, terms, covenants
and conditions of the Second Loan shall at all times be
wholly subordinate to the liens, security interests, terms,
covenants and conditions of the Allstate Loan.
(vi) During the continuance of a default under the Note after
Subordinate Mortgagee has received notice from LENDER of
such default, or in the event of a foreclosure sale under
either the Allstate Loan or the Second Loan or any
liquidation or dissolution of BORROWER, or of any execution
sale, receivership, insolvency, bankruptcy, liquidation,
readjustment, reorganization or other similar proceeding
relative to the BORROWER or its property, the Subordinate
Mortgagee shall not be entitled to receive or retain any
payment made under the Second Loan and all amounts due
under the Note shall first be paid in full before any
payment is made under the Second Loan. In such event a
payment or distribution of any kind, whether in cash,
rents, profits, property or securities, which is made
against the Second Loan shall be held in trust by the
Subordinate Mortgagee for the benefit of LENDER and shall
be paid over to LENDER in kind for application in payment
of the Note. The Note shall not be deemed paid or
satisfied in full until LENDER has received a payment that
is not subject to rescission, restoration or return.
(vii) If the Subordinate Mortgagee brings a foreclosure
proceeding, no tenant will be named as a party defendant
and no action will be taken that would terminate any Leases
or other rights held by or granted by third parties with
respect to the Subject Property.
(e) For the purposes of this Section 1.13, "Net Operating Income"
shall mean all rents projected from tenants in the Subject
Property and paying rent under Leases in effect during the
applicable twelve month period, which do not contain any
termination rights during that period, calculated on a cash
basis, including all amounts received from tenants as payment of
operating expenses but not including refundable deposits,
principal or interest payments received by BORROWER on loans to
tenants and fees and reimbursements for work performed for
tenants by BORROWER, less all amounts calculated on a cash basis,
for the operation or maintenance of the Subject Property,
including ground rents, the cost of property management,
maintenance, cleaning, security, landscaping, parking maintenance
and utilities, and other costs and expenses approved in writing
by LENDER and amounts reasonably estimated by LENDER for the
payment of real estate taxes and assessments and other taxes
related to the operation of the Subject Property, insurance
premiums, necessary repairs and future replacements of equipment;
payments under the Note and the Second Loan shall not be included
in Net Operating Income.
(f) BORROWER shall not permit any additional encumbrances on the
Subject Property other than the Second Loan permitted under this
Section 1.13.
ARTICLE II
EVENTS OF DEFAULT
Each of the following shall constitute an event of default ("Event of
Default") hereunder:
2.01. Monetary and Performance Defaults. Failure to make any payment
of principal, interest or Prepayment Premium on the Note or any Future
Advance or to make any payment due under this Security Deed, within ten
(10) days after the date when due and payable whether at maturity or by
acceleration or as part of any prepayment or otherwise ("Monetary
Default"); or default in the performance of, or breach of, any of the
covenants or agreements of BORROWER contained herein, in the Note, in any
note evidencing a Future Advance or in any Related Agreement ("Performance
Default"), if such default or breach shall continue for fifteen (15) days
or more after written notification specifying the nature of the default has
been received from LENDER to cure the default; provided, however, that if
such Performance Default is of a nature that it cannot be cured within such
15 day period, then BORROWER shall not be in default if it commences good
faith efforts to cure such default within said 15 day period, demonstrates
continuous diligent efforts to cure such Performance Default in a manner
satisfactory to LENDER and, within a reasonable period, not to exceed 180
days after the date notification of default was received by XXXXXXXX,
completes the cure of such default.
2.02. Bankruptcy, Insolvency, Dissolution. Any court of competent
jurisdiction shall sign an order (a) adjudicating BORROWER, or any general
partner of BORROWER, or any guarantor (which term when used in this
Security Deed shall mean guarantor of payment of the indebtedness) bankrupt
or insolvent, (b) appointing a receiver, trustee or liquidator of the
Subject Property or of a substantial part of the property of BORROWER, or
any general partner of BORROWER, or any guarantor, or (c) approving a
petition for, or effecting an arrangement in bankruptcy, or any other
judicial modification or alteration of the rights of LENDER or of other
creditors of BORROWER, or any general partner of BORROWER, or any
guarantor; or BORROWER, any general partner of BORROWER or any guarantor,
shall (i) apply for or consent to the appointment of a receiver, trustee or
liquidator for it or for any of its property, (ii) as debtor, file a
voluntary petition in bankruptcy, or petition or answer seeking
reorganization or an arrangement with creditors or to take advantage of any
bankruptcy, reorganization, insolvency, readjustment of debt, dissolution
or liquidation law or statute, or an answer admitting the material
allegations of a petition filed against it and any proceeding under such
law, (iii) admit in writing an inability to pay its debts as they mature,
or (iv) make a general assignment for the benefit of creditors.
2.03. Misrepresentation. A misrepresentation by XXXXXXXX is an Event
of Default. A misrepresentation shall be any representation, warranty,
statement, certificate, schedule and/or report made or furnished to LENDER
by BORROWER in this Security Deed or any of the Related Agreements which is
false or misleading in any material respect as of the date made or
furnished.
2.04. Default under Subordinate Loans. An occurrence of a default
under any loan subordinate to this Security Deed which is not an
independent default under this Security Deed which results in the
commencement of foreclosure proceedings or the taking of any other remedial
action under such subordinate loan.
ARTICLE III
REMEDIES
Upon the occurrence of any Event of Default, LENDER shall have the
following rights and remedies:
3.01. Acceleration. LENDER may without notice or demand, declare the
entire principal amount of the Note and/or any Future Advances then
outstanding and accrued and unpaid interest thereon, and all other sums or
payments required thereunder including, but not limited to the Prepayment
Premium described in the Note, to be due and payable immediately, and
notwithstanding the stated maturity in the Note, or any note evidencing any
Future Advance, the principal amount of the Note and/or any Future Advance,
the accrued and unpaid interest thereon and all other sums or payments
required thereunder including, but not limited to the Prepayment Premium
described in the Note, shall thereupon become and be immediately due and
payable.
3.02. Entry. Irrespective of whether LENDER exercises the option
provided in Section 3.01 above, LENDER in person or by agent or by court-
appointed receiver (and XXXXXX shall have the right to the immediate
appointment of such a receiver without regard to the adequacy of the
security and BORROWER hereby irrevocably consents to such appointment and
waives notice of any application therefor) may enter upon, take possession
of, conduct tests of, manage and operate the Subject Property or any part
thereof and do all things necessary or appropriate in XXXXXX's sole
discretion in connection therewith without the appointment of a receiver,
or an application therefor. LENDER or its agent or a receiver may exclude
BORROWER, its agents and servants, wholly therefrom, and having and holding
the same, may use, operate, manage and control the Subject Property or any
part thereof, and upon every such entry LENDER, at the expense of BORROWER,
from time to time may have joint access with BORROWER to the books, papers
and accounts of BORROWER and may make all necessary or proper repairs,
renewals, replacements and useful or required alterations, additions,
betterments and improvements to and upon the Subject Property as LENDER may
deem judicious and pay all costs and expenses of so taking, holding and
managing the same, including compensation to XXXXXX's employees and other
agents (including, without limitation, reasonable and actual attorneys'
fees and management and rental commissions) and any taxes, assessments and
other charges prior to the legal operation and effect of this Security Deed
which LENDER may deem it wise or desirable to pay, and in such case LENDER
shall have the right to manage the Subject Property and to carry on the
business and exercise all rights and powers of BORROWER, either in the name
of BORROWER, or otherwise, as LENDER shall deem advisable; and LENDER shall
be entitled to collect and receive all rents thereof and therefrom. The
taking of possession and collections of rents by LENDER shall not be
construed to be an affirmation of any lease or acceptance of attornment
with respect to any lease of all or any portion of the Subject Property.
XXXXXX may commence, appear in and/or defend any action or proceedings
purporting to affect the security hereof, and/or any additional or other
security therefor, the interests, rights, powers and/or duties of XXXXXX
xxxxxxxxx, whether brought by or against BORROWER or XXXXXX. LENDER may
pay, purchase, contest or compromise any claim, debt, lien, charge or
encumbrance which in the judgment of XXXXXX may affect or appear to affect
the security of this Security Deed, the interest of XXXXXX or the rights,
powers and/or duties of XXXXXX xxxxxxxxx. After deducting the expenses of
operating the Subject Property and of conducting the business thereof, and
of all repairs, maintenance, renewals, replacements, alterations,
additions, betterments, improvements and all payments which LENDER may be
required or may elect to make for taxes or other proper charges on the
Subject Property, or any part thereof, as well as just and reasonable
compensation for all LENDER's employees and other agents (including,
without limitation, reasonable and actual attorneys' fees and management
and rental commissions) engaged and employed, the moneys arising as
aforesaid shall be applied to the indebtedness secured hereby. Whenever
all that is due upon the principal of and interest on the Note and under
any of the terms of this Security Deed shall have been paid and all
defaults made good, XXXXXX shall surrender possession to BORROWER. The
same right of entry, however, shall exist if any subsequent Event of
Default shall occur; provided, however, LENDER shall not be under any
obligation to make any of the payments or do any of the acts referred to in
this Section 3.02.
3.03. Judicial Action. LENDER may, in addition to and not in
abrogation of the rights covered under Article III, either with or without
entry or taking possession as herein provided or otherwise, proceed in any
court of competent jurisdiction by a suit or suits in law or in equity or
by any other appropriate proceeding or remedy (i) to enforce payment of the
Note or the performance of any term, covenant, conditions or agreement of
this Security Deed or any other right, (ii) to foreclose this Security Deed
(the Subject Property may be foreclosed in parts or as an entirety), and
(iii) to pursue any other remedy available to it, all as LENDER at its sole
discretion shall elect.
3.04. Power of Sale. LENDER, at its option, may sell the Subject
Property or any part of the Subject Property under the power of sale
granted herein in any manner permitted by applicable law at one or more
public sale or sales at the usual place for conducting sales at the
courthouse of the county in which the Land or any part of the Land is
situated, to the highest bidder for cash, in order to pay the indebtedness
secured hereby, and all expenses of sale and of all proceedings in
connection therewith, including attorneys' fees, after advertising the
time, place and terms of sale once a week for four (4) consecutive weeks
immediately preceding such sale (but without regard to the number of days)
in a newspaper in which Sheriff's sales are advertised in said county, all
other notice, including judicial notice, being hereby waived by XXXXXXXX.
At any such public sale, XXXXXX may execute and deliver to the Purchaser a
conveyance of the Subject Property or any part of the Subject Property in
Fee Simple, which conveyance shall be by deed or deeds without any covenant
or warranty whatever, express or implied and such deed or deeds 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 that all preliminary acts prerequisite to said sale
and deed were in all things duly complied with, and to this end, BORROWER
hereby constitutes and appoints LENDER the agent and attorney-in-fact of
BORROWER to make such recitals, sale and conveyance, and thereby to divest
BORROWER of all right, title and equity that BORROWER may have in and to
the Subject Property and to vest the same in the purchaser or purchasers at
such sale or sales, and all the acts and doings of said agent and attorney-
in-fact are hereby ratified and confirmed and any recitals in said
conveyance or conveyances as to facts essential to a valid sale shall be
binding and conclusive upon BORROWER. In the event of default of any
purchaser, LENDER shall have the right to resell the Subject Property as
set forth above. The conveyance to be made by LENDER, or its assigns, (and
in the event of a deed in lieu of foreclosure, then as to such conveyance)
shall be effective to bar all right, title and interest, equity or
redemption, including all statutory redemption, homestead, dower, courtesy,
and all other exemptions of BORROWER, or its successors in interest, in and
to the Subject Property. In the event of deficiency in the proceeds
received from such sale, BORROWER shall immediately on demand from LENDER
pay over to LENDER, or its nominee, such deficiency. XXXXXXXX agrees that
possession of the Subject Property by XXXXXXXX, or any person claiming
under BORROWER during the existence of the indebtedness secured hereby,
shall be that of tenant under LENDER, or its assigns, and, in case of a
sale, as herein provided, BORROWER or any person in possession under
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 aforesaid power of sale and agency hereby granted are
coupled with an interest and are irrevocable by death or otherwise. One or
more exercises of the powers herein granted shall not extinguish or exhaust
such powers, until the entire Subject Property is sold or the indebtedness
secured hereby is paid in full. If the indebtedness secured hereby is now
or hereafter further secured by any chattel mortgages, pledges, contracts
or guaranties, assignments or leases or other security instruments, LENDER
may at its option exhaust the remedies granted under any of said security
instruments either concurrently or independently, and in such order as
LENDER may determine. Any person, including BORROWER or LENDER, may
purchase at any sale hereunder, and LENDER shall have the right to purchase
at any sale hereunder by crediting upon the bid price the amount of all or
any part of the indebtedness hereby secured plus interest, late charges,
prepayment fees, and attorneys' fees, as herein provided. If the Subject
Property consists of several lots, parcels or items of property, LENDER may
designate the order in which such lots, parcels or items shall be offered
for sale or sold. Should LENDER desire that more than one sale or other
disposition of the Subject Property be conducted, LENDER may, at its
option, cause the same to be conducted simultaneously, or successively, on
the same day, or at such different times and in such order as LENDER may
deem to be in its best interest, and no such sale shall terminate or
otherwise affect the security of this Security Deed on any part of the
Subject Property not sold until all indebtedness secured hereby has been
fully paid. In connection with any sale or sales hereunder, LENDER may
elect to treat any of the Subject Property which consists of a right in
action or which is property that can be severed from the real property
covered hereby or any improvements thereon without causing structural
damage thereto in accordance with applicable law, separate and apart from
the sale of real property. Any sale of any personal property hereunder
shall be conducted in any manner permitted by the laws of the state in
which the Subject Property is located.
3.05. Rescission of Notice of Default. LENDER, from time to time
before any such public sale or deed in lieu of foreclosure, may rescind any
such notice of breach or default and of election to cause the Subject
Property to be sold by executing and delivering to BORROWER a written
notice of such rescission, which notice, when recorded, shall also
constitute a cancellation of any prior declaration of default and demand
for sale or such documents as may be required by the laws of the state in
which the Subject Property is located to effect such rescission. The
exercise by LENDER of such right of rescission shall not constitute a
waiver of any breach or default then existing or subsequently occurring, or
impair the right of LENDER to execute and deliver to BORROWER, as above
provided, other declarations of default and demand for sale, and notices of
breach or default, and of election to cause the Subject Property to be sold
to satisfy the obligations hereof, nor otherwise affect any provision,
agreement, covenant or condition of the Note and/or of this Security Deed
or any of the rights, obligations or remedies of the parties hereunder.
3.06. XXXXXX's Remedies Respecting Collateral. LENDER may realize
upon the Collateral, enforce and exercise all of the BORROWER's rights,
powers, privileges and remedies in respect of the Collateral, dispose of or
otherwise deal with the Collateral in such order as LENDER may in its
discretion determine, and exercise any and all other rights, powers,
privileges and remedies afforded to a secured party under the laws of the
state in which the Subject Property is located as well as all other rights
and remedies available at law or in equity.
3.07. Proceeds of Sales. The proceeds of any sale made under or by
virtue of this Article III, together with all other sums which then may be
held by LENDER under this Security Deed, whether under the provisions of
this Article III or otherwise, shall be applied as follows:
FIRST: To the payment of the costs, fees and expenses of sale and of
any judicial proceedings wherein the same may be made, including the cost
of evidence of title in connection with the sale, compensation to LENDER,
and to the payment of all expenses, liabilities and advances made or
incurred by LENDER under this Security Deed, together with interest on all
advances made by LENDER at the interest rate applicable under the Note, but
limited to any maximum rate permitted by law to be charged by XXXXXX.
SECOND: To the payment of any and all sums expended by XXXXXX under
the terms hereof, not then repaid, with accrued interest at the Contract
Rate or Default Rate, as applicable, set forth in the Note, and all other
sums (except advances of principal and interest thereon) required to be
paid by BORROWER pursuant to any provisions of this Security Deed, or the
Note, or any note evidencing any Future Advance, or any of the Related
Agreements, including, without limitation, all expenses, liabilities and
advances made or incurred by LENDER under this Security Deed or in
connection with the enforcement thereof, together with interest thereon as
herein provided.
THIRD: To the payment of the entire amount then due, owing or unpaid
for principal and interest upon the Note, any notes evidencing any Future
Advance, and any other obligation secured hereby, with interest on the
unpaid principal at the rate set forth therein from the date of advancement
thereof until the same is paid in full.
FOURTH: The remainder, if any, to the person or persons, including
the BORROWER, legally entitled thereto.
3.08. Waiver of Marshalling, Rights of Redemption, Homestead and
Valuation. XXXXXXXX, for itself and for all persons hereafter claiming
through or under it or who may at any time hereafter become holders of
liens junior to the lien of this Security Deed, hereby expressly waives and
releases all rights to direct the order in which any of the Subject
Property shall be sold in the event of any sale or sales pursuant hereto
and to have any of the Subject Property and/or any other property now or
hereafter constituting security for any of the indebtedness secured hereby
marshalled upon any foreclosure of this Security Deed or of any other
security for any of said indebtedness.
To the fullest extent permitted by law, BORROWER, for itself and all
who may at any time claim through or under it, hereby expressly waives,
releases and renounces all rights of redemption from any foreclosure sale,
all rights of homestead, exemption, monitoring reinstatements, forbearance,
appraisement, valuation, stay and all rights under any other laws which may
be enacted extending the time for or otherwise affecting enforcement or
collection of the Note, the debt evidenced thereby, or this Security Deed.
3.09. Remedies Cumulative. No remedy herein conferred upon or
reserved to LENDER is intended to be exclusive of any other remedy herein
or by law provided, but each shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law
or in equity or by statute. No delay or omission of LENDER to exercise any
right or power accruing upon any Event of Default shall impair any right or
power or shall be construed to be a waiver of any Event of Default or any
acquiescence therein; and every power and remedy given by this Security
Deed to LENDER may be exercised separately, successively or concurrently
from time to time as often as may be deemed expedient by XXXXXX. If there
exists additional security for the performance of the obligations secured
hereby, LENDER, at its sole option, and without limiting or affecting any
of its rights or remedies hereunder, may exercise any of the rights and
remedies to which it may be entitled hereunder either concurrently with
whatever rights and remedies it may have in connection with such other
security or in such order as it may determine. Any application of any
amounts or any portion thereof held by LENDER at any time as additional
security or otherwise, to any indebtedness secured hereby shall not extend
or postpone the due dates of any payments due from BORROWER to LENDER
hereunder or under the Note, any Future Advance, or under any of the
Related Agreements, or change the amounts of any such payments or otherwise
be construed to cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to any such default or notice.
In any action to foreclose this Security Deed, LENDER may, at its
option, have a receiver appointed to take charge of the Subject Property
and to collect such rents, issues and profits, all without consideration of
the value of the Subject Property as security for the amount of
indebtedness secured hereby. All such rents, issues and profits paid to
LENDER or collected by such receiver shall be first applied to the cost of
collection thereof (including the cost of such receivership, if any) and
then to the payment of the interest on and principal of the Note. BORROWER
for itself and any subsequent owner of the Subject Property hereby waives
any and all defenses to the application for such receiver and hereby
specifically consents to such appointment without notice.
3.10. Nonrecourse. Notwithstanding anything contained in this
Security Deed, the Note, or the Related Agreements, except as otherwise set
forth in this paragraph, the liability of BORROWER and the general partners
of BORROWER, if any, under the Note, this Security Deed and the Related
Agreements shall be limited to, and satisfied from, the Subject Property
and the proceeds thereof, the rents and all other income arising therefrom,
the other assets of BORROWER arising out of the Subject Property which are
given as collateral for the Note, and any other collateral given in writing
to LENDER as security for repayment of the Note (all of the foregoing
collectively referred to as the "Loan Collateral"); provided, however, that
nothing contained in this paragraph shall (i) preclude LENDER from
foreclosing this Security Deed or from enforcing any of its rights or
remedies in law or in equity against BORROWER except as stated in this
paragraph, (ii) constitute a waiver of any obligation evidenced by the Note
or secured by this Security Deed or any Related Agreements, (iii) limit the
right of LENDER to name BORROWER as a party defendant in any action brought
under this Security Deed, the Note or any Related Agreements, so long as
execution on any judgment is limited to the Loan Collateral, (iv) prohibit
LENDER from pursuing all of its rights and remedies against any guarantor
or surety, whether or not such guarantor or surety is a partner of
BORROWER, (v) limit the personal liability of BORROWER or shareholder of
BORROWER, or any general partner of BORROWER, to LENDER, for
misappropriation or misapplication of funds, fraud, waste, willful
misrepresentation or willful damage to the Subject Property, or (vi)
preclude LENDER from recovering from BORROWER and indemnitors under the
Environmental Indemnity Agreement of even date herewith.
3.11 Performance by XXXXXX. If BORROWER shall default in the
payment, performance or observance of any term, covenant or condition of
this Security Deed, LENDER may, at its option, pay, perform or observe the
same, and all payments made or costs or expenses incurred by LENDER in
connection therewith shall be secured hereby and shall be, without demand,
immediately repaid by BORROWER to LENDER with interest thereon at the
Default Rate provided in the Note. LENDER shall be the sole judge of the
necessity for such actions and of the amounts to be paid. XXXXXX is
hereby empowered to enter and to authorize others to enter upon the Subject
Property or any part thereof for the purpose of performing or observing any
such defaulted term, covenant or condition without hereby becoming liable
to BORROWER or any person in possession holding under BORROWER. LENDER may
(i) grant forbearance or an extension of time for the payment of all or any
portion of the indebtedness secured hereby; (ii) take other or additional
security for the payment of the indebtedness secured hereby; (iii) waive or
fail to exercise any right granted hereunder or in the Note; (iv) release
any part of the Subject Property from this Security Deed or otherwise
change any of the terms, covenants, conditions or agreements of the Note or
this Security Deed; (v) consent to the filing of any map, plat or replat
affecting the Subject Property; (vi) consent to the granting of any
easement or other right affecting the Subject Property; (vii) make or
consent to any agreement subordinating the security title, security
interest or lien hereof; or (viii) take or omit to take any action
whatsoever with respect to the Note, this Security Deed, the Subject
Property or any document or instrument evidencing, securing or in any way
relating to the indebtedness secured hereby; all without releasing,
discharging, modifying, changing or affecting any such liability, or
precluding LENDER from exercising any such right, power or privilege or
affecting the security of this Security Deed. In the event of the sale or
transfer by operation of law or otherwise of all or any part of the Subject
Property, LENDER, without notice, is hereby authorized and empowered to
deal with any such vendee or transferee with reference to the Subject
Property or the indebtedness secured hereby, or with reference to any of
the terms, covenants, conditions or agreements hereof, as fully and to the
same extent as it might deal with the original parties hereto and without
in any way releasing and/or discharging any liabilities, obligations or
undertakings.
ARTICLE IV
MISCELLANEOUS
4.01. Severability. In the event any one or more of the provisions
contained in this Security Deed 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 Security
Deed, but this Security Deed shall be construed as if such invalid, illegal
or unenforceable provision had never been contained herein, but only to the
extent that it is invalid, illegal or unenforceable.
4.02. Certain Charges and Brokerage Fees. XXXXXXXX agrees to pay
XXXXXX a reasonable charge for each written statement requested of XXXXXX
as to the obligations secured hereby, furnished at BORROWER's request.
XXXXXXXX further agrees to pay the reasonable charges of LENDER for any
other service rendered BORROWER, or on its behalf, connected with this
Security Deed or the indebtedness secured hereby, including, without
limitation, the delivery to an escrow holder of a request for full or
partial reconveyance of this Security Deed, transmittal to an escrow holder
of moneys secured hereby, changing its records pertaining to this Security
Deed and indebtedness secured hereby to show a new owner of the Subject
Property, and replacing an existing policy of insurance held hereunder with
another such policy.
XXXXXXXX agrees to indemnify and hold XXXXXX harmless from any
responsibility and/or liability for the payment of any commission charge or
brokerage fees to anyone which may be payable in connection with the
funding of the loan evidenced by the Note and this Security Deed or
refinancing of any prior indebtedness, if applicable, based upon any action
taken by BORROWER. It is understood that any such commission charge or
brokerage fees shall be paid directly by BORROWER to the entitled parties.
4.03. Notices. All notices expressly provided hereunder to be given
by XXXXXX to BORROWER and all notices, demands and other communications of
any kind or nature whatever which BORROWER may be required or may desire to
give to or serve on LENDER shall be in writing and shall be (i) hand-
delivered, effective upon receipt, (ii) sent by United States Express Mail
or by private overnight courier, effective upon receipt, or (iii) served by
certified mail, to the appropriate address set forth in Section 4.16, or at
such other place as the BORROWER, or LENDER, as the case may be, may from
time to time designate in writing by ten (10) days prior written notice
thereof. Any such notice or demand served by certified mail, return
receipt requested, shall be deposited in the United States mail, with
postage thereon fully prepaid and addressed to the party so to be served at
its address above stated or at such other address of which said party shall
have theretofore notified in writing, as provided above, the party giving
such notice. Service of any such notice or demand so made shall be deemed
effective on the day of actual delivery as shown by the addressee's return
receipt or the expiration of three (3) business days after the date of
mailing, whichever is the earlier in time.
4.04. BORROWER Not Released; Certain LENDER Acts.
(a) Extension of the time for payment or modification of the
terms of payment of any sums secured by this Security Deed granted by
XXXXXX to any successor in interest of BORROWER shall not operate to
release, in any manner, the liability of BORROWER. XXXXXX shall not be
required to commence proceedings against such successor or refuse to extend
time for payment or otherwise modify the terms of payment of the sums
secured by this Security Deed by reason of any demand made by XXXXXXXX.
Without affecting the liability of any person, including BORROWER, but
subject to the terms and provisions of Section 3.10, for the payment of any
indebtedness secured hereby, or the legal operation and effect of this
Security Deed on the remainder of the Subject Property for the full amount
of any such indebtedness and liability unpaid, LENDER is empowered as
follows: LENDER may from time to time and without notice (i) release any
person liable for the payment of any of the indebtedness; (ii) extend the
time or otherwise alter the terms of payment of any of the indebtedness;
(iii) accept additional real or personal property of any kind as security
therefor, whether evidenced by deeds to secure debt, mortgages, security
agreements or any other instruments of security; or (iv) alter, substitute
or release any property securing the indebtedness.
(b) LENDER may, at any time, and from time to time, (i) consent
to the making of any map or plan of the Subject Property or any part
thereof, (ii) join in granting any easement or creating any restriction
thereon, (iii) join in any subordination or other agreement affecting this
Security Deed or the legal operation and effect or charge hereof, or (iv)
reconvey, without any warranty, all or part of the Subject Property from
the lien of this Security Deed.
4.05. Inspection. Upon reasonable prior notice and subject to the
inspection rights of tenants under the Leases, LENDER may at any reasonable
time make or cause to be made entry upon and make inspections,
reappraisals, surveys, construction and environmental testing of the
Subject Property or any part thereof in person or by agent, all at XXXXXX's
sole cost and expense.
4.06. Reconveyance or Cancellation. Upon the payment in full of all
sums secured by this Security Deed, LENDER shall cancel this Security Deed
and shall mark satisfied all notes evidencing indebtedness secured by this
Security Deed. The duly recorded satisfaction of this Security Deed shall
constitute a reassignment of the Leases by the LENDER to the BORROWER.
BORROWER shall pay all costs of recordation, if any.
4.07. Statute of Limitations. BORROWER hereby expressly waives and
releases to the fullest extent permitted by law, the pleading of any
statute of limitations as a defense to any and all obligations secured by
this Security Deed.
4.08. Interpretation. Wherever used in this Security Deed, unless
the context otherwise indicates a contrary intent, or unless otherwise
specifically provided herein, the word "BORROWER" shall mean and include
both BORROWER and any subsequent owner or owners of the Subject Property,
and the word "LENDER" shall mean and include not only the original LENDER
hereunder but also any future owner and holder, including pledgees, of the
Note or other obligations secured hereby. In this Security Deed whenever
the context so requires, the masculine gender includes the feminine and/or
neuter, and the neuter includes the feminine and/or masculine, and the
singular number includes the plural. In this Security Deed, the use of the
word "including" shall not be deemed to limit the generality of the term or
clause to which it has reference, whether or not non-limiting language
(such as "without limitation," or "but not limited to," or words of similar
import) is used with reference thereto. The captions and headings of the
Articles and Sections of this Security Deed are for convenience only and
are not to be used to interpret, define or limit the provisions hereof.
4.09. Consent; Delegation to Subagents. The granting or withholding
of consent by LENDER to any transaction as required by the terms hereof
shall not be deemed a waiver of the right to require consent to future or
successive transactions. BORROWER covenants and agrees to reimburse LENDER
promptly on demand for all legal and other expenses incurred by XXXXXX in
connection with all requests by BORROWER for consent or approval under this
Security Deed. Wherever a power of attorney is conferred upon XXXXXX
xxxxxxxxx, it is understood and agreed that such power is conferred with
full power of substitution, and XXXXXX may elect in its sole discretion to
exercise such power itself or to delegate such power, or any part thereof,
to one or more subagents.
4.10. Successors and Assigns. All of the grants, obligations,
covenants, agreements, terms, provisions and conditions herein shall run
with the land and shall apply to, bind and inure to the benefit of, the
heirs, administrators, executors, legal representatives, successors and
assigns of BORROWER (but this shall not permit any assignment prohibited
hereby) and the endorsees, transferees, successors and assigns of LENDER.
In the event BORROWER is composed of more than one party, the obligations,
covenants, agreements, and warranties contained herein as well as the
obligations arising therefrom are and shall be joint and several as to each
such party.
4.11. Governing Law. THIS SECURITY DEED IS INTENDED TO BE GOVERNED
BY AND CONSTRUED UNDER THE LAWS OF THE STATE IN WHICH THE SUBJECT PROPERTY
IS LOCATED. BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY.
4.12. Changes in Taxation. If, after the date of this Security Deed,
any law is passed by the state in which the Subject Property is located or
by any other governing entity, imposing upon LENDER any tax against the
Subject Property, or changing in any way the laws for the taxation of
mortgages or debts secured by mortgages so that an additional or substitute
tax is imposed on LENDER or the holder of the Note, XXXXXXXX shall
reimburse LENDER for the amount of such taxes immediately upon receipt of
written notice from LENDER (but excluding income, estate, capital or
franchise taxes). Provided, however, that such requirement of payment
shall be ineffective if BORROWER is permitted by law to pay the whole of
such tax in addition to all other payments required hereunder, without any
penalty or charge thereby accruing to LENDER and if BORROWER in fact pays
such tax prior to the date upon which payment is required by such notice.
4.13. Maximum Interest Rate. No provision of this Security Deed or
of the Note or of any note evidencing a Future Advance shall require the
payment or permit the collection of interest in excess of the maximum
non-usurious rate permitted by applicable law. In the event such interest
does exceed the maximum legal rate, it shall be cancelled automatically to
the extent that such interest exceeds the maximum legal rate and if
theretofore paid, credited on the principal amount of the Note or, if the
Note has been prepaid, then such excess shall be rebated to BORROWER.
4.14. Time of Essence. Time is of the essence of the obligations of
BORROWER in this Security Deed and each and every term, covenant and
condition made herein by or applicable to BORROWER.
4.15. Reproduction of Documents. This Security Deed and all
documents relating thereto, specifically excluding the Note but including,
without limitation, consents, waivers and modifications which may hereafter
be executed, financial and operating statements, certificates and other
information previously or hereafter furnished to LENDER, may be reproduced
by LENDER by any photographic, photostatic, microfilm, micro-card,
miniature photographic or other similar process and LENDER may destroy any
original document ("Master") so reproduced. XXXXXXXX agrees and stipulates
that any such reproduction is an original and shall be admissible in
evidence as the Master in any judicial or administrative proceeding
(whether or not the Master is in existence and whether or not such
reproduction was made or preserved by LENDER in the regular course of
business) and any enlargement, facsimile or further reproduction of such a
reproduction shall be no less admissible.
4.16. Request for Notices. BORROWER hereby requests that any notice,
demand, request or other communication (including any notice of an Event of
Default and notice of sale as may be required by law) desired to be given
or required pursuant to the terms hereof be addressed to XXXXXXXX as
follows:
Xxxxxxx Bridge Partners, L.P.
c/o Xxxxx-Xxxxxxx, Inc.
1815 The Exchange
Atlanta, Georgia 30339
Attn: Xxxx X. Xxxxx and Xxxx X. Xxxxxxx
With a copy to:
Xxxx, Xxxxxxxx & Xxxxxx
Two Concourse Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
All notices and other communications to LENDER shall be addressed as
follows:
Allstate Life Insurance Company
c/o Allstate Insurance Company
Commercial Mortgage Division
0000 Xxxxxxx Xxxx
Xxxxxxxx Xxxxx Xxxx - X0X
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Mortgage Servicing Department
With a copy to:
Allstate Insurance Company
Financial Law Division
0000 Xxxxxxx Xxxx
Xxxxxxxx Xxxxx Xxxx - X0X
Xxxxxxxxxx, Xxxxxxxx 00000
4.17. No Oral Modifications. This Security Deed may not be amended
or modified orally, but only by an agreement in writing signed by the party
against whom enforcement of any amendment or modification is sought.
IN WITNESS WHEREOF, the undersigned has executed this Security Deed
under seal as of the day and year first hereinabove written.
BORROWER:
Signed, sealed and delivered XXXXXXX BRIDGE PARTNERS, L.P.,
in the presence of: a Georgia limited partnership
____________________________ By:/s/ Xxxx X. Xxxxx (SEAL)
Unofficial Witness ----------------------
Xxxx X. Xxxxx, Partner
____________________________ By:/s/ Xxxx X. Xxxxxx (SEAL)
Notary Public ----------------------
Xxxx X. Xxxxxx, Partner
My Commission Expires: (Being all the General
Partners of BORROWER)
____________________________
(Affix Notarial Seal)
The debt which this Security Deed was given to secure having been paid
in full, this Security Deed is hereby cancelled and the Clerk of the
Superior Court of Xxxxxx County, Georgia is hereby authorized and directed
to make it satisfied of record.
This ___ day of ________________, 19__.
LENDER:
ALLSTATE LIFE INSURANCE COMPANY
By:____________________________
By:____________________________
Its Authorized Signatories
EXHIBIT A
ALL THAT TRACT or parcel of land lying and being in Land Lots 612 and 613
of the 1st District, 2nd Section of Xxxxxx County, Georgia, City of
Roswell, containing 10.9870 acres, same being more particularly described
as follows:
BEGINNING at a point on the southeasterly Right-of-Way Line of Old Alabama
Road which point is located south 55 degrees 22 minutes 40 seconds west a
distance of 84.50 feet along said Right-of-Way Line from its intersection
with the southwesterly Right-of-Way Line of Xxxxxxx Xxxxx Parkway (Ninety
(90') foot Right-of-Way) if said Right-of-Way Lines were extended to form
an angle instead of a curve; thence traveling along the mitered
intersection of said Old Alabama Road and said Xxxxxxx Xxxxx Parkway along
a curve to the right an arc distance of 126.58 feet to a point on the
southerly Right-of-Way Line of said Xxxxxxx Xxxxx Parkway (said arc being
subtended by a chord bearing south 88 degrees 21 minutes 35 seconds east a
chord distance of 118.30 feet and having a radius of 100.00 feet); thence
continuing along the southerly Right-of-Way Line of said Xxxxxxx Xxxxx
Parkway along a curve to the left an arc distance of 185.44 feet to a point
on said Right-of-Way Line (said arc being subtended by a chord bearing
south 74 degrees 36 minutes 31 seconds east a chord distance of 180.71 feet
and having a radius of 235.99 feet); thence continuing along said Right-of-
Way Line north 82 degrees 52 minutes 32 seconds east a distance of 140.24
feet to a point on said Right-of-Way Line; thence continuing along said
Right-of-Way Line along a curve to the right an arc distance of 181.61 feet
to a point on said Right-of-Way Line (said arc being subtended by a chord
bearing south 80 degrees 30 minutes 20 seconds east a chord distance of
179.07 feet and having a radius of 313.06 feet); thence continuing along
said Right-of-Way Line south 63 degrees 53 minutes 15 seconds east a
distance of 145.45 feet to a point on said Right-of-Way Line; thence
continuing along said Right-of-Way Line along a curve to the left an arc
distance of 29.95 feet to a point on said Right-of-Way Line (said arc being
subtended by a chord bearing south 65 degrees 16 minutes 33 seconds east a
chord distance of 29.94 feet and having a radius of 617.96 feet); thence
leaving said Right-of-Way Line and traveling south 31 degrees 03 minutes 46
seconds west a distance of 205.73 feet to a point; thence traveling south
59 degrees 53 minutes 13 seconds east a distance of 59.43 feet to a point;
thence traveling south 31 degrees 00 minutes 38 seconds west a distance of
104.89 feet to a point; thence traveling south 58 degrees 59 minutes 22
seconds east a distance of 129.99 feet to a point; thence traveling south
31 degrees 00 minutes 38 seconds west a distance of 34.50 feet to a point;
thence traveling south 84 degrees 58 minutes 59 seconds west a distance of
68.00 feet to a point; thence traveling north 58 degrees 59 minutes 22
seconds west a distance of 175.00 feet to a point; thence traveling south
63 degrees 55 minutes 38 seconds west a distance of 434.80 feet to a point;
thence traveling south 31 degrees 00 minutes 38 seconds west a distance of
160.00 feet to a point; thence traveling south 13 degrees 59 minutes 47
seconds east a distance of 28.28 feet to a point on the northeasterly
Right-of-Way Line of Xxxxxxx Bridge Road (One Hundred (100') foot
Right-of-Way); thence traveling along said Right-of-Way Line north 58
degrees 56 minutes 20 seconds west a distance of 80.07 feet to a point on
said Right-of-Way Line; thence leaving said Right-of-Way Line and traveling
north 31 degrees 00 minutes 38 seconds east a distance of 166.94 feet to a
point; thence traveling north 58 degrees 56 minutes 32 seconds west a
distance of 129.89 feet to a point; thence traveling north 67 degrees 15
minutes 05 seconds west a distance of 165.63 feet to a point; thence
traveling north 20 degrees 22 minutes 08 seconds east a distance of 85.00
feet to a point; thence traveling north 60 degrees 07 minutes 00 seconds
west a distance of 223.02 feet to a point; thence traveling north 13
degrees 18 minutes 26 seconds west a distance of 38.12 feet to a point on
the southeasterly Right-of-Way Line of said Old Alabama Road; thence
traveling along said Right-of-Way Line along a curve to the right an arc
distance of 2.67 feet to a point on said Right-of-Way Line (said arc being
subtended by a chord bearing north 48 degrees 20 minutes 54 seconds east a
chord distance of 2.67 feet and having a radius of 778.45 feet); thence
continuing along said Right-of-Way Line along a curve to the right an arc
distance of 38.97 feet to a point on said Right-of-Way Line (said arc being
subtended by a chord bearing north 49 degrees 52 minutes 50 seconds east a
chord distance of 38.96 feet and having a radius of 778.45 feet); thence
continuing along said Right-of-Way Line north 51 degrees 45 minutes 19
seconds east a distance of 163.94 feet to a point on said Right-of-Way
Line; thence continuing along said Right-of-Way Line north 55 degrees 22
minutes 40 seconds east a distance of 232.79 feet to a point on said Right-
of-Way Line, which point is the TRUE POINT OF BEGINNING.
SHOWN AS TRACT I on that certain Survey entitled "As-Built Survey For:
Xxxxxxx Bridge Partners, L.P., Allstate Life Insurance Company & Ticor
Title Insurance Company", prepared by Sunbelt Engineering & Surveying,
Inc., stamped by Xxxxxxx X. Xxxxxxx, Xx., Georgia Registered Land Surveyor
No. 2157, dated June 6, 1989, last revised October 3, 1990.
TOGETHER WITH those rights arising under the following:
1. Grant of Slope and Grading Easement from The Prudential Insurance
Company of America, a New Jersey corporation, to Jebco Ventures, Inc.,
a Georgia corporation, dated February 5, 1988, filed for record
February 5, 1988 at 3:06 p.m., recorded at Deed Book 11314, Page 13,
in the Office of the Clerk of the Superior Court of Xxxxxx County,
Georgia.
2. Grant of Slope and Grading Easement from Xxxxxxx Xxxxx Village, a
Georgia joint venture composed of Lincoln National Development
Corporation, an Indiana corporation, and KHW Associates, Ltd., a
Georgia limited partnership having Xxxxxx X. Xxxx as its sole general
partner, as tenant-in-common, to Jebco Ventures, Inc., a Georgia
corporation, dated January 26, 1988, filed for record February 5, 1988
at 3:06 p.m., recorded at Deed Book 11314, Page 37, aforesaid records.
3. Grant of Storm Sewer Easement by and between The Prudential Insurance
Company of America, a New Jersey corporation, Xxxxxxx Xxxxx, Inc., a
Georgia non-profit membership corporation, and Jebco Ventures, Inc., a
Georgia corporation, dated February 5, 1988, filed for record February
5, 1988 at 3:06 p.m., recorded at Deed Book 11314, Page 45, aforesaid
records.
4. Grant of Sanitary Sewer Easements by and between The Prudential
Insurance Company of America, a New Jersey corporation, Xxxxxxx Xxxxx,
Inc., a Georgia non-profit membership corporation, and Jebco Ventures,
Inc., a Georgia corporation, dated February 5, 1988, filed for record
February 5, 1988 at 3:06 p.m., recorded at Deed Book 11314, Page 59,
aforesaid records.
10/2/90-xxx-XX#2-02831
5. Declaration of Reciprocal Easements dated October 5, 1990 by Xxxxxxx
Bridge Partners, L.P. to be recorded in aforesaid records.
EXHIBIT B
1. All State and County taxes subsequent to the year 1990, and all City
of Roswell taxes subsequent to the year 1989.
2. Permit for Anchors, Xxx Xxxxx and Wires from X. Xxxxxx Xxxxxxx to
Georgia Power Company, dated November 21, 1977, recorded at Deed Book
6982, Page 293, Xxxxxx County, Georgia records.
3. Permit for Anchors, Xxx Xxxxx and Wires from S. Xxxxxx Xxxxxxx to
Georgia Power Company, dated November 21, 1977, recorded at Deed Book
6982, Page 291, aforesaid records.
4. Permit for Anchors, Guy Poles and Wires from Wm. X. Xxxxx to Georgia
Power Company, dated November 18, 1977, recorded at Deed Book 6982,
Page 289, aforesaid records.
5. Second Declaration of Protective Covenants and Restrictions for
Xxxxxxx Xxxxx by The Prudential Insurance Company of America, a New
Jersey corporation, dated February 22, 1984, recorded at Deed Book
8858, Page 1, aforesaid records; as amended by that certain First
Amendment to Second Declaration of Protective Covenants and
Restrictions for Xxxxxxx Xxxxx, dated May 7, 1984, recorded at Deed
Book 8971, Page 320, aforesaid records; as further amended by that
certain Second Amendment to Second Declaration of Protective Covenants
and Restrictions for Xxxxxxx Xxxxx, dated December 30, 1986, recorded
at Deed Book 10526, Page 42, aforesaid records; as further amended by
that certain Third Amendment to Second Declaration of Protective
Covenants and Restrictions for Xxxxxxx Xxxxx, dated December 10, 1987,
recorded at Deed Book 11314, Page 1, aforesaid records; as further
amended by that certain Fourth Amendment to Second Declaration of
Protective Covenants and Restrictions for Xxxxxxx Xxxxx, dated May 13,
1988, recorded at Deed Book 11565, Page 178, aforesaid records; as
further amended by that certain Fifth Amendment to Second Declaration
of Protective Covenants and Restrictions for Xxxxxxx Xxxxx, dated
March 29, 1989, recorded at Deed Book 12388, Page 7, aforesaid
records.
6. Slopes, Fills and Drainage, if any, conveyed by that certain Right-of-
Way Deed to City of Roswell, dated November 15, 1982, recorded at Deed
Book 8372, Page 414, aforesaid records.
7. Conveyance of Access Rights from The Prudential Insurance Company of
America to Department of Transportation, State of Georgia, dated
February 13, 1984, recorded at Deed Book 9215, Page 252, aforesaid
records.
8. Grant of Easement from The Prudential Insurance Company of America to
Lincoln National Development Corporation, and KHW Associates, Ltd.
d/b/a Xxxxxxx Xxxxx Village, a joint venture, dated February X, 1984,
recorded at Deed Book 8859, Page 180, aforesaid records.
9. Slopes, Fills and Drainage, if any, conveyed by that certain
unrecorded Right-of-Way Deed from Xxxxxxx Xxxxx, Inc. to City of
Roswell, dated November 13, 1986, as disclosed on that certain xxxx
recorded at Plat Book 152, Page 89, aforesaid records.
10. Non-exclusive utility easements as contained in that certain Limited
Warranty Deed from The Prudential Insurance Company of America to Xxxx
Xxxxxx Realty Income Partnership III, L.P., dated December 30, 1986,
recorded at Deed Book 10526. Page 47, aforesaid records.
11. Grant of Slope Grading Easement by and between The Prudential
Insurance Company of America to Lincoln National Development
Corporation and KHW Associates, Ltd., d/b/a Xxxxxxx Xxxxx Village, a
joint venture, dated February 23, 1984, recorded at Deed Book 8859,
Page 194, aforesaid records; as corrected by that certain Corrective
Grant of Slope and Grading Easement, dated July 30, 1987, recorded at
Deed Book 11178, Page 297, aforesaid records.
12. Grant of Easement from The Prudential Insurance Company of America to
Trust Company Mortgage, dated September 30, 1983, recorded at Deed
Book 10443, Page 289, aforesaid records.
13. Declaration of Use Covenants by and between The Prudential Insurance
Company of America and Xxxx Xxxxxx Realty Income Partnership III,
L.P., dated December 30, 1986, recorded at Deed Book 10526, Page 72,
aforesaid records.
14. Easement Agreement from The Prudential Insurance Company of America to
Trust Company Mortgage, dated September 30, 1983, recorded at Deed
Book 8685, Page 112, aforesaid records.
15. Grant of Slope and Grading Easement from Xxxxxxx Xxxxx, Inc. to The
Prudential Insurance Company of America, dated February 2, 1988,
recorded at Deed Book 11310, Page 328, aforesaid records.
16. Grant of Slope and Grading Easement from The Prudential Insurance
Company of America to Jebco Ventures, Inc., dated February 5, 1988,
recorded at Deed Book 11314, Page 13, aforesaid records.
17. Grant of Slope and Grading Easement from Xxxxxxx Xxxxx Village to
Jebco Ventures, Inc., dated January 26, 1988, recorded in Deed Book
11314, Page 37, aforesaid records.
18. Grant of Storm Sewer Easement by and between The Prudential Insurance
Company of America, Xxxxxxx Xxxxx, Inc. and Jebco Ventures, Inc.,
dated February 5, 1988, recorded at Deed Book 11314, Page 45,
aforesaid records.
19. Grant of Sanitary Sewer Easements by and between The Prudential
Insurance Company of America, Xxxxxxx Xxxxx, Inc. and Jebco Ventures,
Inc., dated February 5, 1988, recorded at Deed Book 11314, Page 59,
aforesaid records.
20. Memorandum of Lease by and between Jebco Ventures, Inc. ("Landlord")
and Super Discount Markets, Inc. ("Tenant"), dated February 3, 1988,
recorded at Deed Book 11314, Page 133, aforesaid records.
21. Right-of-Way Easement from Jebco Ventures, Inc. to Sawnee Electric
Membership Corporation, dated June 14, 1988, recorded at Deed Book
11739, Page 270, aforesaid records.
22. Declaration of Reciprocal Easements dated October 5, 1990 by Xxxxxxx
Bridge Partners, L.P. to be recorded in aforesaid records.
