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EXHIBIT 10.5.14
DEED TO SECURE DEBT AND SECURITY AGREEMENT
THIS DEED TO SECURE DEBT AND SECURITY AGREEMENT (the "Security Deed"),
executed this 30th day of January, 1997, by XXXXXXX PROPERTIES RESIDENTIAL,
L.P., a Georgia limited partnership (the "Borrower"), having its principal
office at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000. Said Security
Deed is being given to secure the payment of two notes of even date herewith
one of which is payable to the order of NATIONWIDE LIFE INSURANCE COMPANY, an
Ohio corporation, having its principal office at Xxx Xxxxxxxxxx Xxxxx,
Xxxxxxxx, Xxxx 00000-0000 or at such other place either within or without the
State of Ohio, as Lender may from time to time designate and the other of which
is payable to the order of WEST COAST LIFE INSURANCE COMPANY, a California
corporation, whose address is c/o Nationwide Life Insurance Company, Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000-0000 or at such other place either
within or without the State of Ohio, as Lender may from time to time designate,
and any subsequent holder(s) hereof, (collectively the "Lender").
W I T N E S S E T H
WHEREAS, the Borrower is justly indebted to the Lender in the aggregate
sum of SIX MILLION FOUR HUNDRED TWENTY THOUSAND AND NO/100 DOLLARS
($6,420,000.00), with interest thereon, as set forth in a certain Real Estate
Note A of even date herewith in the sum of FIVE MILLION SIX HUNDRED SEVENTY
THOUSAND AND NO/100 DOLLARS ($5,670,000.00) payable to Nationwide Life
Insurance Company and a certain Real Estate Note B of even date herewith in the
sum of SEVEN HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($750,000.00) payable to
West Coast Life Insurance Company (said Real Estate Notes A and Note B are
hereinafter collectively referred to as the "Note"), which Note shall be due
and payable on or before February 15, 2007 ; and
WHEREAS, the Lender, as a condition precedent to the extension of credit
and the making of the loan evidenced by the Note, has required that the
Borrower provide Lender with security for the repayment of the indebtedness
evidenced by the Note as well as for the performance, observance and discharge
by the Borrower of the various covenants, conditions and agreements made by the
Borrower to, with, in favor of and for the benefit of Lender with respect to
said indebtedness and such security;
NOW THEREFORE, in consideration of and in order to secure the repayment
of the indebtedness evidenced and represented by the Note, together with
interest on such indebtedness, as well as the payment of all other sums of
money secured hereby, as hereinafter provided; and to secure the observance,
performance and discharge by the Borrower of all covenants, conditions and
agreements set forth in the Note, this Security Deed and in all other documents
and instruments executed and delivered by the Borrower to and in favor of
Lender for the purpose of further securing the repayment of the indebtedness
evidenced and represented by the Note; and in order to charge the properties,
interests and rights hereinafter described with such payment, observance,
performance and discharge; and in consideration of the sum of one dollar paid
by Lender to Borrower and other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged, the Borrower does hereby
grant, bargain, sell, alien, remise, release, convey, assign, transfer, pledge,
deliver, set over, hypothecate, warrant and confirm unto Lender, its successors
and assigns forever, all of Borrower's right, title and interest in and to the
following described properties, rights and interests and all replacements of,
substitutions for, and additions thereto (all of which are hereinafter together
referred to as the "Property"), to wit:
ALL THAT certain piece, parcel or tract of land or real property of
which the Borrower is now seized and in actual or constructive possession,
situate in Gwinnett County, Georgia more particularly described on Exhibit "A"
attached hereto and by this reference made a part hereof (hereinafter referred
to as the "Real Property");
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TOGETHER WITH all buildings, structures and other improvements of any
kind, nature or description now or hereafter erected, constructed, placed or
located upon said Real Property (which buildings, structures and other
improvements are hereinafter sometimes together referred to as the
"Improvements"), including, without limitation, any and all additions to,
substitutions for or replacements of such Improvements;
TOGETHER WITH all minerals, royalties, gas rights, water, water rights,
water stock, flowers, shrubs, lawn plants, crops, trees, timber and other
emblements now or hereafter located on, under or above all or any part of the
Real Property;
TOGETHER WITH all and singular, the tenements, hereditaments, strips and
gores, rights-of-way, easements, privileges and other appurtenances now or
hereafter belonging or in any way appertaining to the Real Property, including,
without limitation, all right, title and interest of the Borrower in any
after-acquired right, title, interest, remainder or reversion, in and to the
beds of any ways, streets, avenues, roads, alleys, passages and public places,
open or proposed, in front of, running through, adjoining or adjacent to said
Real Property (hereinafter sometimes together referred to as "Appurtenances");
TOGETHER WITH any and all leases, contracts, rents, royalties, issues,
revenues, profits, proceeds, income and other benefits, including accounts
receivable, of, accruing to or derived from said Real Property, Improvements
and Appurtenances and any business or enterprise presently situated or
hereafter operated thereon and therewith (hereinafter sometimes together
referred to as the "Rents");
TOGETHER WITH, any and all awards or payments, including interest
thereon, and the right to receive the same, as a result of (a) the exercise of
the right of eminent domain, (b) the alteration of the grade of any street, or
(c) any other injury to, taking of, or decrease in the value of, the Property
to the extent of all amounts which may be secured by this Security Deed at the
date of any such award or payment including but not limited to Reasonable
Attorneys' Fees (as hereinafter defined), costs and disbursements incurred by
the Lender in connection with the collection of such award or payment;
AS WELL AS all of the right, title and interest of Borrower in and to
all fixtures, goods, chattels, construction materials, furniture, furnishings,
equipment, machinery, apparatus, appliances, and other items of personal
property, whether tangible or intangible, of any kind, nature or description,
whether now owned or hereafter acquired by the Borrower, including, without
limitation, improvements including furnaces, steam boilers, hot-water boilers,
oil burners, pipes, radiators, air-conditioning and sprinkler systems, gas and
electric fixtures, carpets, rugs, shades, awnings, screens, elevators, motors,
dynamos, cabinets, and all other furnishings, tools, equipment and machinery,
appliances, building supplies, materials, general intangibles, contract rights,
accounts receivable, business records, fittings and fixtures of every kind,
which is, are or shall hereafter be located upon, attached, affixed to or used
or useful, either directly or indirectly, in connection with the complete and
comfortable use, occupancy and operation of said Real Property and Improvements
as an apartment complex, or any other business, enterprise or operation as may
hereafter be conducted upon or with said Real Property, Improvements and
Appurtenances, including, without limitation, any and all licenses, permits or
franchises, used or required in connection with such use, occupancy or
operation, as well as the proceeds thereof or therefrom regardless of form
(hereinafter sometimes together referred to as "Fixtures and Personal
Property," which term expressly excludes any toxic waste or substances deemed
hazardous under federal, state or local laws). The Borrower hereby expressly
grants to Lender a present security interest in and a lien and encumbrance upon
the Fixtures and Personal Property;
TO HAVE AND HOLD the foregoing Property, and the rights hereby granted
for the use and benefit of the Lender and its successors and assigns in fee
simple forever;
AND the Borrower covenants and warrants with and to the Lender that the
Borrower is indefeasibly seized of the Property and has good right, full power,
and lawful authority to convey and encumber all of the same as aforesaid; that
the Borrower hereby fully warrants the title to the Property and will defend
the same and the validity and priority of the lien and encumbrance of this
Security Deed against the lawful claims of all persons whomsoever, subject only
to the Permitted Exceptions; and the Borrower further warrants that the
Property is free and clear of all liens and encumbrances of any kind, nature or
description, save and except only (with respect to said Real Property,
Improvements and
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Appurtenances and Fixtures and Personal Property) for real property taxes for
years subsequent to 1996 and those matters set forth in Exhibit "B" attached
hereto and by this reference made a part hereof (hereinafter referred to as the
"Permitted Exceptions").
PROVIDED ALWAYS, however, that if the Borrower shall pay unto the Lender
the indebtedness evidenced by the Note, and if the Borrower shall duly,
promptly and fully perform, discharge, execute, effect, complete and comply
with and abide by each and every one of the agreements, conditions and
covenants of the Note, this Security Deed and all other documents and
instruments executed as further evidence of or as security for the indebtedness
secured hereby, then this Security Deed and the estates and interests hereby
granted and created shall cease, terminate and be null and void, and shall be
discharged of record at the expense of Borrower, which expense Borrower agrees
to pay.
This conveyance is intended (i) to constitute a security agreement as
required under the Uniform Commercial Code of Georgia and (ii) to operate and
is to be construed as a deed passing the title to the Property to the Lender
and is made under those provisions of the existing laws of the State of Georgia
relating to deeds to secure debt, and not as a mortgage, and is given to secure
(a) the debt evidenced by the Note (which is incorporated herein by reference
and to which reference is made for all purposes, and which Borrower
acknowledges evidences an indebtedness arising from a business loan from Lender
to Borrower for the sole purpose of permitting Borrower to carry on its
business) in the aggregate principal face amount of Six Million Four Hundred
Twenty Thousand and No/100 Dollars ($6,420,000.00), or so much thereof as may
have been advanced and remain outstanding from time to time, with interest at
the rate of 7.14% percent per annum; (b) any and all renewals and extensions of
the Note; (c) each and every covenant, obligation and undertaking of the
Borrower in this Security Deed or in that certain Assignment of Leases, Rents
and Profits of even date herewith from Borrower to Lender; and (d) any and all
other indebtedness which may hereafter be owing by the Borrower to the Lender
which is incurred or created by advances made by the Lender to or on behalf of
or for the account of the Borrower in accordance with the provisions of this
Security Deed or otherwise permitted by the provisions of this Security Deed.
Principal and interest shall be payable in installments the last of which
shall, unless the maturity thereof is accelerated by the holder of the Note or
the principal amount of the Note is prepaid, be due and payable on February 15,
2007.
The Borrower, for the benefit of the Lender, and is successors and
assigns, does hereby expressly covenant and agree:
1. PAYMENT OF PRINCIPAL AND INTEREST. To pay the principal of the
indebtedness evidenced by the Note, together with all interest thereon, in
accordance with the terms of the Note, promptly at the times, at the place and
in the manner that said principal and interest shall become due, and to
promptly and punctually pay all other sums required to be paid by the Borrower
pursuant to the terms of the Note, this Security Deed and all other documents
and instruments executed as further evidence of, as additional security for or
in connection with the indebtedness evidenced by the Note and secured by this
Security Deed (hereinafter together referred to as the "Loan Documents").
2. PERFORMANCE OF OTHER OBLIGATIONS. To perform, comply with and
abide by each and every one of the covenants, agreements and conditions
contained and set forth in the Note, this Security Deed and the other Loan
Documents and to comply with all laws, ordinances, rules, regulations and
orders of governmental authorities now or hereafter affecting the Property or
requiring any alterations or improvements to be made thereon, and perform all
of its obligations under any covenant, condition, restriction or agreement of
record affecting the Property and to insure that at all times the Property
constitutes one or more legal lots capable of being conveyed without violation
of any subdivision or platting laws, ordinances, rules or regulations, or other
laws relating to the division or separation of real property.
3. PRESERVATION AND MAINTENANCE OF PROPERTY; ACCESSIBILITY;
HAZARDOUS WASTE. To keep all Improvements now existing or hereafter erected on
the Real Property in good order and repair and not to do or permit any waste,
impairment or deterioration thereof or thereon, nor to alter, remove or
demolish any of the Improvements or any Fixtures or Personal Property attached
or appertaining thereto, without the prior written consent of the Lender, nor
to initiate, join in or consent to any change in any private restrictive
covenant, zoning ordinance or other public or
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private restrictions limiting or defining the uses which may be made of the
Property or any part thereof, nor to do or permit any other act whereby the
Property shall become less valuable, be used for purposes contrary to
applicable law or be used in any manner which will increase the premium for or
result in a termination or cancellation of the insurance hereinafter required
to be kept and maintained on the Property. In furtherance of, and not by way
of limitation upon the foregoing covenant, Borrower shall effect such repairs
as the Lender may reasonably require, and from time to time make all needful
and proper replacements so that said Improvements, Appurtenances, Fixtures and
Personal Property will, at all times, be in good condition, fit and proper for
the respective purposes for which they were originally erected or installed.
Borrower at all times shall maintain the Property in full compliance with all
applicable provisions of all federal, state or municipal laws, ordinances,
rules and regulations currently in existence or hereafter enacted or rendered
governing accessibility for the disabled, including but not limited to The
Architectural Barriers Act of 1988, The Rehabilitation Act of 1973, The Fair
Housing Act of 1988 and The Americans With Disabilities Act of 1990
(hereinafter, collectively the "Accessibility Laws"). Borrower at all times
shall keep the Property and ground water of the Property free of "Hazardous
Materials" (as hereinafter defined). Borrower shall not permit its tenants or
any third party requiring the consent of Borrower to enter the Property, to
use, generate, manufacture, store, release, threaten release, or dispose of
Hazardous Materials in, on or about the Property or the ground water of the
Property in violation of any federal, state or municipal law, decision,
statute, rule, ordinance or regulation currently in evidence or hereinafter
enacted or rendered ("Hazardous Waste Laws"). Borrower shall give Lender
prompt written notice of any claim by any person, entity, or governmental
agency that a significant release or disposal of Hazardous Materials has
occurred on the Property. The Borrower, through its professional engineers and
at its cost, shall promptly and thoroughly investigate suspected Hazardous
Materials contamination of the Property. Borrower shall forthwith remove,
repair, clean up, and/or detoxify any Hazardous Materials from the Property or
the ground water of the Property whether or not such actions are required by
law, and whether or not Borrower was responsible for the existence of the
Hazardous Materials in, on or about the Property or the ground water of the
Property. "Hazardous Materials" shall include but not be limited to substances
defined as "hazardous substances," "hazardous materials," or "toxic
substances," in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601, et. seq.; the Hazardous
Materials Transportation Act, 49 U.S.C. 1801 et. seq.; the Resources
Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et. seq.; the Toxic
Substances Control Act, 15 U.S.C. Sec. 2601 et. seq.; the Clean Air Act, 42
U.S.C. Sec. 7401 et. seq.; and the Clean Water Act, 33 U.S.C. Sec. 1251 et.
seq.
Borrower hereby agrees to indemnify Lender and hold Lender harmless from
and against any and all losses, liabilities, damages, injuries, costs, expenses
and claims of any and every kind whatsoever paid, incurred or suffered by or
asserted against Lender for, with respect to, or as a direct or indirect result
of the non-compliance of the Property with the Accessibility Laws and/or the
presence on, under or about the Property, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or release from, the Property of any
Hazardous Materials (including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under any
Hazardous Waste Laws, regardless of whether or not caused by, or within the
control of, Borrower).
Lender, and/or its agents, shall have the right and shall be permitted,
but shall not be required, at all reasonable times, to enter upon and inspect
the Property to insure compliance with the foregoing covenants and any and all
other covenants, agreements and conditions set forth in this Security Deed.
Liability under this Paragraph of this Security Deed shall extend beyond
repayment of the Note and compliance with the terms of this Security Deed;
provided, however, Borrower shall have no liability under this Paragraph 3 as
to Hazardous Materials: (a) if the Property becomes contaminated subsequent to
Lender's acquisition of the Property by foreclosure, acceptance by Lender of a
deed in lieu thereof, or subsequent to any transfer of ownership of the
Property which was approved or authorized by Lender in writing, provided that
such transferee assumes all obligations of Borrower with respect to Hazardous
Materials pursuant to this Security Deed; or (b) at such time Borrower provides
Lender an environmental assessment report acceptable to Lender showing the
Property to be free of Hazardous Materials and not in violation of Hazardous
Waste Laws. The burden of proof under this Paragraph with regard to
establishing the date upon which Hazardous Material was placed or appeared in,
on or under the Property shall be upon Borrower.
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4. PAYMENT OF TAXES, ASSESSMENTS AND OTHER CHARGES. To pay all and
singular such taxes, assessments and public charges as are already levied or
assessed or that may be hereafter levied or assessed upon or against the
Property, when the same shall become due and payable according to law, before
the same become delinquent, and before any interest or penalty shall attach
thereto, and to deliver official receipts evidencing the payment of the same to
the Lender not later than thirty (30) days following the payment of the same.
Borrower shall have the right to contest, in good faith, the proposed
assessment of ad valorem taxes or special assessments by governmental
authorities having jurisdiction of the Property; provided, however, the
Borrower shall give written notice thereof to Lender and Lender may, in its
sole discretion, require Borrower to post a bond or other collateral
satisfactory to Lender in connection with any such action by Borrower; provided
further, however, that so long as there is no default hereunder (which is not
cured within any applicable cure period, if any) Lender agrees not to require
Borrower to post a bond or other collateral if (i) Borrower is appealing ad
valorem taxes in the normal course of Borrower's business and (ii) no action is
taken to commence foreclosure procedures on the Property or any portion thereof
and (iii) the collateral pledged to Lender to secure the loan evidenced by the
Note and this Security Deed is not otherwise jeopardized in Lender's sole
opinion.
5. PAYMENT OF LIENS, CHARGES AND ENCUMBRANCES. To immediately pay
and discharge from time to time when the same shall become due all lawful
claims and demands of mechanics, materialmen, laborers and others which, if
unpaid, might result in, or permit the creation of, a lien, charge or
encumbrance upon the Property or any part thereof, or on the rents, issues,
income, revenues, profits and proceeds arising therefrom and, in general, to do
or cause to be done everything necessary so that the lien of this Security Deed
shall be fully preserved at the cost of the Borrower, without expense to the
Lender. Borrower shall have the right to contest, in good faith and in
accordance with applicable laws and procedures, mechanic's and materialmen's
liens filed against the Property; provided, however, that Borrower shall give
written notice thereof to Lender, and Lender may at its sole option require
Borrower to post a bond or other collateral satisfactory to Lender (and
acceptable to the title company insuring the Security Deed) in connection with
any such action by Borrower.
6. PAYMENT OF JUNIOR ENCUMBRANCES. To permit no default or
delinquency under any other lien, imposition, charge or encumbrance against the
Property, even though junior and inferior to the lien of this Security Deed;
provided, however, the foregoing shall not be construed to permit any other
lien or encumbrance against the Property.
7. PAYMENT OF MORTGAGE TAXES. To pay any and all taxes which may
be levied or assessed directly or indirectly upon the Note and this Security
Deed (except for income taxes payable by the Lender) or the debt secured
hereby, without regard to any law which may be hereafter enacted imposing
payment of the whole or any part thereof upon the Lender, its successors or
assigns. Upon violation of this agreement to pay such taxes levied or assessed
upon the Note and this Security Deed, or upon the rendering by any court of
competent jurisdiction of a decision that such an agreement by the Borrower is
legally inoperative, or if any court of competent jurisdiction shall render a
decision that the rate of said tax when added to the rate of interest provided
for in the Note exceeds the then maximum rate of interest allowed by law, then,
and in any such event, the debt hereby secured shall, at the option of the
Lender, its successors or assigns, become immediately due and payable, anything
contained in this Security Deed or in the Note secured hereby notwithstanding,
without the imposition of a Prepayment Premium (as defined in the Note). The
additional amounts which may become due and payable hereunder shall be part of
the debt secured by this Security Deed.
8. HAZARD INSURANCE. To continuously, during the term hereof, keep
the Improvements and the Fixtures and Personal Property now or hereafter
existing, erected, installed and located in or upon the Real Property insured
with extended coverage insurance against loss or damage resulting from fire,
windstorm, flood (but only if any of the Improvements are located in a flood
plain), sinkhole and such other hazards, casualties, contingencies and perils,
including, without limitation, other risks insured against by persons operating
like properties in the locality of the Property, on such forms as may be
required by Lender, covering the Property in the amount of the full replacement
cost thereof (provided that Borrower provides a replacement cost endorsement
satisfactory to Lender; otherwise, the amount of such insurance shall not be
less than the difference between the outstanding balance of the Note and eighty
(80%) percent of the then appraised value of the Land and Improvements as
determined
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by Lender in its sole discretion), and covering all loss or abatement of rental
or other income without provision for co-insurance in an amount equal to the
scheduled rental income of the Property for a period of twelve (12) months, or
if applicable, business interruption insurance in an amount sufficient to pay
debt service, operating expenses, taxes and insurance for the Property for
twelve (12) months, and covering loss by flood (if the Property lies in a
specified Flood Hazard Area as designated on the Department of Housing and
Urban Development Maps, or other flood prone designation) in an amount equal to
the outstanding principal balance of the indebtedness secured hereby or such
other amount of coverage as approved by Lender. All such insurance shall be
carried with such company or companies as may be acceptable to the Lender,
which company or companies shall have a current rating equivalent to at least
A:VIII as shown in Best's Key Rating Guide, and the original policy or policies
and renewals thereof (or duplicate originals or certified copies thereof),
together with receipts evidencing payment of the premium therefor, shall be
deposited with, held by and are hereby assigned to Lender as additional
security for the indebtedness secured hereby. Each such policy of insurance
shall contain a non-contributing loss payable clause in favor of and in form
acceptable to Lender and shall provide for not less than thirty (30) days'
prior written notice to Lender of intent to modify, cancel or terminate or the
expiration of such policies of insurance. Not less than fifteen (15) days
prior to the expiration dates of each policy required of the Borrower
hereunder, Borrower will deliver to Lender a renewal policy or policies or a
certified copy thereof marked "premium paid" or accompanied by other evidence
of payment and renewal satisfactory to Lender (Lender agrees that a binder for
a renewal policy accompanied by a copy of an invoice for the premium associated
therewith (which may show that the premium can be paid in quarterly
installments) shall be satisfactory evidence of payment and renewal provided
that Borrower delivers to Lender evidence of the payment of such premium on or
before the date the premium (or installments thereof, if applicable) is due);
and in the event of foreclosure of or exercise of the power of sale in this
Security Deed, any purchaser or purchasers of the Property shall succeed to all
rights of the Borrower, including any rights to unearned premiums, in and to
all insurance policies assigned and delivered to Lender pursuant to the
provisions of this Paragraph 8.
In the event of loss by reason of hazards, casualties, contingencies or
perils for which insurance has been required by the Lender hereunder, the
Borrower shall give immediate notice thereof to the Lender, and the Lender is
hereby irrevocably appointed attorney-in-fact coupled with an interest, for the
Borrower to, at Lender's option, make proof of loss if not made promptly by the
Borrower, and each insurance company concerned is hereby notified, authorized
and directed to make payment for such loss directly to the Lender, instead of
to the Borrower and Lender jointly, and Borrower hereby authorizes Lender to
adjust and compromise any losses for which insurance proceeds are payable under
any of the aforesaid insurance policies and, after deducting the costs of
collection, to apply the proceeds of such insurance, at its option, as follows:
(a) to the restoration or repair of the insured Improvements, Fixtures and
Personal Property, provided that, in the opinion and sole discretion of the
Lender, such restoration or repair is reasonably practical and, provided
further, that, in the opinion and sole discretion of the Lender, either: (i)
the insurance proceeds so collected are sufficient to cover the cost of such
restoration or repair of the damage or destruction with respect to which such
proceeds were paid, or (ii) the insurance proceeds so collected are not
sufficient alone to cover the cost of such restoration or repair, but are
sufficient therefor when taken together with funds provided and made available
by the Borrower from other sources; in which event the Lender shall make such
insurance proceeds available to the Borrower for the purpose of effecting such
restoration or repair; but Lender shall not be obligated to see to the proper
application of such insurance proceeds nor shall the amount of funds so
released or used be deemed to be payment of or on account of the indebtedness
secured hereby, or (b) to the reduction of the outstanding principal
indebtedness secured hereby, notwithstanding the fact that the amount owing
thereon may not then be due and payable or that said indebtedness is otherwise
adequately secured, in which event such proceeds shall be applied at par
against the indebtedness secured hereby and the monthly payment due on account
of such indebtedness shall be adjusted accordingly. None of such actions taken
by the Lender shall be deemed to be or result in a waiver or impairment of any
equity, lien or right of the Lender under and by virtue of this Security Deed,
nor will the application of such insurance proceeds to the reduction of the
indebtedness serve to cure any default in the payment thereof. In the event of
foreclosure of this Security Deed or other transfer of title to the Property in
extinguishment of the indebtedness secured hereby, all right, title and
interest of the Borrower in and to any insurance policies then in force and
insurance proceeds then payable shall pass to the purchaser or grantee.
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In case of Borrower's failure to keep the Property so insured, Lender or
its assigns, may, at its option (but shall not be required to) effect such
insurance at Borrower's expense.
Notwithstanding anything set forth in this Paragraph 8 to the contrary,
in the event of loss or damage to the Property by fire or other casualty for
which insurance has been required by Lender and provided by Borrower, and the
amount of such loss or damage does not exceed fifty percent (50%) of the
outstanding principal balance of the Note, the Lender hereby agrees to allow
the proceeds of insurance to be used for restoration of the Property and to
release such insurance proceeds to Borrower as such restoration progresses,
provided:
(a) Borrower is not in default under any of the terms,
covenants and conditions of this Security Deed, the
Note or any of the Loan Documents evidencing or
securing the Note;
(b) [intentionally omitted]
(c) The plans and specifications for restoration of the
Property are approved in writing by the Lender;
(d) At all times during such restoration, Borrower has
deposited with Lender funds which, when added to such
insurance proceeds, are sufficient to complete the
restoration of the Property as certified by an
architect approved by Lender in accordance with the
approved plans and specifications and all applicable
building codes and zoning ordinances and regulations,
and further, that the sufficiency of such funds is
certified to Lender by Lender's inspecting
architect/engineer;
(e) Borrower provides payment and performance bonds and
builder's all risk insurance for such restoration in
form and amount acceptable to Lender;
(f) The insurer under such policies of fire or other
casualty insurance does not assert any defense to
payment under such policies against Lender, Borrower or
any tenant of the Property;
(g) The insurance proceeds held by Lender shall be
disbursed no more often than once per month and in not
more than five (5) increments of amounts of not less
than FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00)
each (except the final disbursement of such proceeds
which may be in an amount less than FIFTY THOUSAND AND
NO/100 DOLLARS ($50,000.00). Lender's obligation to
make any such disbursement shall be conditioned upon
Lender's receipt of a written certification from the
Lender's inspecting architect/engineer that all
construction and work for which such disbursement is
requested has been completed in accordance with the
approved plans and specifications and all applicable
building codes, zoning ordinances and all other local
or federal governmental regulations and, further, that
Borrower has deposited with Lender sufficient funds to
complete such restoration in accordance with
subparagraph (d) above;
(h) Lender shall have the option, upon the completion of
such restoration of the Property, to apply any surplus
insurance proceeds remaining after the completion of
such restoration, at par, to the reduction of the
indebtedness secured by this Security Deed;
notwithstanding the fact that the amount owing thereon
may not then be due and payable or that said
indebtedness is otherwise adequately secured; and
(i) Lender shall be entitled to require and to impose such
other conditions to the release of such insurance
proceeds for restoration of the Property as would be
customarily or reasonably required and imposed by a
construction lender for a project of similar nature and
cost.
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8
9. LIABILITY INSURANCE. To carry and maintain such comprehensive
general liability insurance as may from time to time be required by Lender,
taking into consideration the type of property insured and the corresponding
liability exposure, on forms, in amounts and with such company or companies as
may be acceptable to Lender. All such comprehensive general liability
insurance shall be carried with a company or companies as may be acceptable to
Lender, which company or companies shall have a current rating equivalent to at
least A:VIII as shown in Best's Key Rating Guide. Such policy or policies of
insurance shall name Lender as an additional insured and shall provide for not
less than thirty (30) days' prior written notice to Lender of modification,
cancellation, termination or expiration of such policy or policies of
insurance. Not less than fifteen (15) days prior to the expiration dates of
such policy or policies, Borrower will deliver to Lender a renewal policy or
policies or a certified copy thereof marked "premium paid" or accompanied by
other evidence of payment and renewal satisfactory to Lender (Lender agrees
that a binder for a renewal policy accompanied by a copy of an invoice for the
premium associated therewith (which may show that the premium can be paid in
quarterly installments) shall be satisfactory evidence of payment and renewal
provided that Borrower delivers to Lender evidence of the payment of such
premium on or before the date the premium (or installments thereof, if
applicable) is due). The original policy or policies and all renewals thereof
(or duplicate originals or certified copies thereof), together with receipts
evidencing payment of the premium therefor, shall be deposited with, held by
and are hereby assigned to Lender as additional security for the indebtedness
secured hereby.
10. COMPLIANCE WITH LAWS. To observe, abide by and comply with all
statutes ordinances, laws, orders, requirements or decrees relating to the
Property enacted, promulgated or issued by any federal, state, county or
municipal authority or any agency or subdivision thereof having jurisdiction
over the Borrower or the Property, and to observe and comply with all
conditions and requirements necessary to preserve and extend any and all
rights, licenses, permits (including, but not limited to, zoning variances,
special exceptions and nonconforming uses), privileges, franchises and
concessions which are applicable to the Property or which have been granted to
or contracted for by Borrower in connection with any existing, presently
contemplated or future use of the Property.
11. MAINTENANCE OF PERMITS. To obtain, keep and constantly maintain
in full force and effect during the entire term of this Security Deed, all
certificates, licenses and permits necessary to keep the Property operating as
an apartment complex project, and, except as specifically provided for in this
mortgage, not to assign, transfer or in any manner change such certificates,
licenses or permits without first receiving the written consent of the Lender.
12. OBLIGATIONS OF BORROWER AS LESSOR. To perform every obligation
of the Borrower (as the lessor) and enforce every obligation of the lessee in
any and every lease or other occupancy agreement affecting the Property or any
part thereof (hereinafter referred to as the "Occupancy Leases"), and not to
modify, alter, waive or cancel any such Occupancy Leases or any part thereof,
nor collect for more than thirty (30) days in advance any rents that may be
collectible under any such Occupancy Leases and, except as provided for in this
Security Deed, not to assign any such Occupancy Lease or any such rents to any
party other than Lender, without the prior written consent of the Lender. In
the event of default under any such Occupancy Lease by reason of failure of the
Borrower to keep or perform one or more of the covenants, agreements or
conditions thereof, the Lender is hereby authorized and empowered, and may, at
its sole option, remedy, remove or cure any such default, and further, Lender
may, at its sole option and in its sole discretion, but without obligation to
do so, pay any sum of money deemed necessary by it for the performance of said
covenants, agreements and conditions, or for the curing or removal of any such
default, and incur all expenses and obligations which it may consider necessary
or reasonable in connection therewith, and Borrower shall repay on demand all
such sums so paid or advanced by Lender together with interest thereon until
paid at the lesser of either (i) the highest rate then allowed by the laws of
the State of Georgia, or, if controlling, the laws of the United States, or
(ii) the then- applicable interest rate of the Note plus five hundred (500)
basis points; all of such sums, if unpaid, shall be added to and become part of
the indebtedness secured hereby. All such Occupancy Leases hereafter made
shall be subject to the approval of Lender and (a) shall be at competitive
market rental rates then prevailing in the geographic area for apartment
complexes comparable to the Property and (b) at Lender's option shall be
superior or subordinate in all respects to the lien of this Security Deed.
Provided, however, that the Lender shall not require approval in advance of any
Occupancy Leases which conform to the
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9
Borrower's Form Lease (as hereinafter defined) as previously approved by
Lender, except as set forth below. Neither the right nor the exercise of the
right herein granted unto Lender to keep or perform any such covenants,
agreements, or conditions as aforesaid shall preclude Lender from exercising
its option to cause the whole indebtedness secured hereby to become
immediately, but subject to the notice and cure period in Paragraph 23, due and
payable by reason of Borrower's default in keeping or performing any such
covenants, agreements or conditions as hereinabove required.
Lender has heretofore approved a form of Occupancy Lease to be used by
Borrower in connection with the Property (hereinafter referred to as the "Form
Lease"). Borrower shall not, without the prior written consent of the Lender,
modify or alter the Form Lease in any material respect. In addition Borrower
shall not, without the prior written consent of Lender, surrender or terminate
(except in the ordinary course of business), either orally or in writing, any
Occupancy Lease now existing or hereafter made for all or part of the Property,
permit an assignment or sublease of any such Occupancy Lease, or request or
consent to the subordination of any Occupancy Lease to any lien subordinate to
this Security Deed. Upon request, the Borrower shall furnish the Lender with
copies of all executed Occupancy Leases of all or any part of the Property now
existing or hereafter made, and Borrower shall assign to the Lender (which
assignment shall be in form and content acceptable to Lender), as additional
security for the Note, all Occupancy Leases now existing or hereafter made of
all or any part of the Property.
13. MAINTENANCE OF PARKING AND ACCESS; PROHIBITION AGAINST
ALTERATION. To construct, keep and constantly maintain, as the case may be,
all curbs, drives, parking areas and the number of parking spaces heretofore
approved by the Lender or heretofore or hereafter required by any governmental
body, agency or authority having jurisdiction over the Borrower or the
Property, and not to alter, erect, build or construct upon any portion of the
Property, any building or structure of any kind whatsoever, the erection,
building or construction of which has not been previously approved by Lender in
writing, which approval shall be at the sole discretion of Lender. To the
extent any alterations or improvements are required to be approved by any
tenants of the Property, no such alterations or improvements shall be made
unless and until such consent has been obtained in writing and a copy thereof
furnished to Lender.
14. EXECUTION OF ADDITIONAL DOCUMENTS. To do, execute, acknowledge
and deliver all and every such further acts, deeds, conveyances, mortgages,
deeds to secure debt, assignments, notices of assignments, transfers,
assurances and other instruments, including security agreements and financing
statements, as the Lender shall from time to time require for the purpose of
better assuring, conveying, assigning, transferring and confirming unto the
Lender the Property and rights hereby encumbered, created, conveyed, assigned
or intended now or hereafter so to be encumbered, created, conveyed or assigned
or which the Borrower may now be or may hereafter become bound to encumber,
create, convey, or assign to the Lender, or for the purpose of carrying out the
intention or facilitating the performance of the terms of this Security Deed,
or for filing, registering or recording this Security Deed, and to pay all
filing, registration or recording fees and all taxes, costs and other expenses,
including Reasonable Attorneys' Fees (as defined in Paragraph 47), incident to
the preparation, execution, acknowledgment, delivery, and recordation of any of
the same.
15. AFTER-ACQUIRED PROPERTY SECURED. It is understood and agreed
that all right, title and interest of the Borrower in and to all extensions,
improvements, betterments, renewals, substitutions and replacements of, and all
additions and appurtenances to, the Property hereinabove described, hereafter
acquired by or released to the Borrower, or constructed, assembled or placed by
the Borrower on the Real Property, and all conversions of the security
constituted thereby, immediately upon such acquisition, release, construction,
assembling, placement or conversion, as the case may be, and in each such case,
without any further mortgage, encumbrance, conveyance, assignment or other act
by the Borrower, shall become subject to the lien and security title of this
Security Deed as fully and completely and with the same effect as though now
owned by the Borrower and specifically described herein, but at any and all
times the Borrower will execute and deliver to the Lender any and all such
further assurances, mortgages, deeds to secure debt, conveyances, or
assignments thereof or security interests therein as the Lender may reasonably
require for the purpose of expressly and specifically subjecting the same to
the lien of this Security Deed.
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10
16. PAYMENTS BY LENDER ON BEHALF OF BORROWER. Should the Borrower
fail to make payment of any taxes, assessments or public charges on or with
respect to the Property before the same shall become delinquent, or shall fail
to make payment of any insurance premiums or other charges, impositions or
liens herein or elsewhere required to be paid by the Borrower, then the Lender,
at its sole option, but without obligation to do so, may make payment or
payments of the same and also may redeem the Property from tax sale without any
obligation to inquire into the validity of such taxes, assessments and tax
sales. In the case of any such payment by the Lender, the Borrower agrees to
reimburse the Lender, upon demand therefor, the amount of such payment and of
any fees and expenses attendant in making the same, together with interest
thereon at the lesser of either (i) the highest rate then allowed by the laws
of the State of Georgia, or if controlling, the laws of the United States, or
(ii) the then applicable interest rate of the Note plus five hundred (500)
basis points; and until paid, such amounts and interest shall be added to and
become part of the debt secured hereby to the same extent that this Security
Deed secures the repayment of the indebtedness evidenced by the Note. In
making payments hereby authorized by the provisions of this Paragraph 16; the
Lender may do so whenever, in its sole judgment and discretion, such advance or
advances are necessary or desirable to protect the full security intended to be
afforded by this instrument. Neither the right nor the exercise of the right
herein granted unto the Lender to make any such payments as aforesaid shall
preclude the Lender from exercising its option to cause the whole indebtedness
secured hereby to become immediately due and payable by reason of the
Borrower's default in making such payments as hereinabove required.
17. FUNDS HELD BY LENDER FOR TAXES, INSURANCE PREMIUMS, ASSESSMENTS
AND OTHER CHARGES. In order to more fully protect the security of this
Security Deed, Borrower shall deposit with the Lender, together with and in
addition to each monthly payment due on account of the indebtedness evidenced
by the Note, an amount equal to one-twelfth (1/12) of the annual total of such
taxes, insurance premiums, assessments and charges (all as estimated by the
Lender in its sole discretion) so that, at least thirty (30) days prior to the
due date thereof, Lender shall be able to pay in full all such taxes, insurance
premiums, assessments and other charges as the same shall become due, and the
Lender may hold without paying interest and commingle with its general funds
the sums so deposited and apply the same to the payment of said taxes,
insurance premiums, assessments or other charges as they become due and
payable. If at any time the funds so held by Lender are insufficient to pay
such taxes, insurance premiums, assessments or other charges as they become due
and payable the Borrower shall immediately, upon notice and demand by Lender,
deposit with Lender the amount of such deficiency, and the failure on the part
of the Borrower to do so shall entitle the Lender, at its sole option, to make
such payments in accordance with its rights and pursuant to the conditions
elsewhere provided in this Security Deed. Notwithstanding any default under
this Security Deed, Lender agrees to apply any funds deposited by Borrower and
being held by Lender pursuant to this paragraph for the payment of taxes toward
the payment of taxes which are then a lien on the Property. Thereafter, at its
sole option, Lender may apply any funds so held by it pursuant to this
Paragraph 17 toward the payment of the indebtedness secured hereby,
notwithstanding the fact that the amount owing thereon may not then be due and
payable or that said indebtedness is otherwise adequately secured in such order
and manner of application as Lender may elect.
18. CONDEMNATION; EMINENT DOMAIN. All awards and other compensation
heretofore or hereafter made to Borrower and all subsequent owners of the
Property in any taking by eminent domain or recovery for inverse condemnation,
either permanent or temporary, of all or any part of the Property or any
easement or any appurtenance thereto, including severance and consequential
damages and change in grade of any street, are hereby assigned to Lender, and
Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled
with an interest, and authorizes, directs and empowers such attorney, at the
option of said attorney, on behalf of Borrower, its successors and assigns, to
adjust or compromise the claim for any such award and alone to collect and
receive the proceeds thereof, to give proper receipts and acquittances therefor
and, after deducting any expenses of collection, at its sole option:
(i) to apply the net proceeds as a credit upon the outstanding
principal balance of the indebtedness secured hereby, as
selected by Lender, notwithstanding the fact that the amount
owing thereon may not then be due and payable or that the
indebtedness is otherwise adequately secured. In the event
Lender applies such awards to the reduction of the outstanding
indebtedness evidenced by the Note, such proceeds shall be
applied at par
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11
and the monthly installments due and payable under the Note
shall be adjusted accordingly; however no such application shall
serve to cure an existing default in the payment of the Note; or
(ii) to hold said proceeds without any allowance of interest and make
the same available for restoration or rebuilding the Property.
In the event that Lender elects to make said proceeds available
to reimburse Borrower for the cost of the restoration or
rebuilding of the buildings or improvements on the Property,
such proceeds shall be made available in the manner and under
the conditions that Lender may require as provided under
Paragraph 8 hereof. If the proceeds are made available by
Lender to reimburse Borrower for the cost of said restoration or
rebuilding, any surplus which may remain out of said award after
payment of such cost of restoration or rebuilding shall be
applied on account of the indebtedness secured hereby at par
notwithstanding the fact that the amount owing thereon may not
then be due and payable or that said indebtedness is otherwise
adequately secured.
Borrower further covenants and agrees to give Lender immediate notice of
the actual or threatened commencement of any proceedings under eminent domain
and to deliver to Lender copies of any and all papers served in connection with
any proceedings. Borrower further covenants and agrees to make, execute and
deliver to Lender, at any time or times, upon request, free, clear and
discharged of any encumbrance of any kind whatsoever, any and all further
assignments and/or other instruments deemed necessary by Lender for the purpose
of validly and sufficiently assigning all such awards and other compensation
heretofore or hereafter made to Lender (including the assignment of any award
from the United States government at any time after the allowance of the claim
therefor, the ascertainment of the amount thereof and the issuance of the
warrant for payment thereof).
It shall be a default hereunder if any part of any of the Improvements
situated on the Property shall be condemned by any governmental authority
having jurisdiction, or if lands constituting a portion of the Property shall
be condemned by any governmental authority having jurisdiction, such that the
Property is in violation of applicable parking, zoning or other ordinances, or
fails to comply with the terms of the Occupancy Leases, and in either of said
events, Lender shall be entitled to exercise any or all remedies provided or
referenced in this Security Deed.
19. COSTS OF COLLECTION. In the event that the Note secured hereby
is placed in the hands of an attorney for collection, or in the event that the
Lender shall become a party either as plaintiff or as defendant, in any action,
suit, appeal or legal proceeding (including, without limitation, foreclosure,
condemnation, bankruptcy, administrative proceedings or any proceeding wherein
proof of claim is by law required to be filed), hearing, motion or application
before any court or administrative body in relation to the Property or the lien
and security interest granted or created hereby or herein, or for the recovery
or protection of said indebtedness or the Property, or for the foreclosure of
this Security Deed, the Borrower shall save and hold the Lender harmless from
and against any and all costs and expenses incurred by the Lender on account
thereof, including, but not limited to, Reasonable Attorneys' Fees, title
searches and abstract and survey charges, at all trial and appellate levels,
and the Borrower shall repay, on demand, all such costs and expenses, together
with interest thereon until paid at the lesser of either (i) the highest rate
then allowed by the laws of the State of Georgia, or, if controlling, the laws
of the United States, or (ii) the applicable rate of interest of the Note plus
five hundred (500) basis point; all of which sums, if unpaid, shall be added to
and become a part of the indebtedness secured hereby.
20. DEFAULT RATE. If the entire outstanding balance of the Note is
due, whether at maturity, by acceleration or otherwise, the total amount due,
whether principal, interest or money owing for advancements pursuant to the
terms of this Security Deed or any other Loan Document, shall bear interest
until paid at the lesser of (i) the highest rate then allowed by the laws of
the State of Georgia, or, if controlling, the laws of the United States, or
(ii) the then applicable rate of interest of the Note plus five hundred (500)
basis points (five percent per annum); all of which sums shall be added to and
become a part of the indebtedness secured hereby.
21. SAVINGS CLAUSE; SEVERABILITY. Notwithstanding any provisions in
the Note or in this Security Deed to the contrary, the total liability for
payments in the nature of interest including but not limited to Prepayment
Premiums, default interest and late fees shall not exceed the limits imposed by
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laws of the State of Georgia or the United States of America relating to
maximum allowable charges of interest. Lender shall not be entitled to
receive, collect or apply, as interest on the indebtedness evidenced by the
Note, any amount in excess of the maximum lawful rate of interest permitted to
be charged by applicable law. In the event Lender ever receives, collects or
applies as interest any such excess, such amount which would be excessive
interest shall be applied to reduce the unpaid principal balance of the
indebtedness evidenced by the note. If the unpaid principal balance of such
indebtedness is paid in full any remaining excess shall be paid forthwith to
the Borrower. If any clauses or provisions herein contained operate or would
prospectively operate to invalidate this Security Deed, then such clauses or
provisions only shall be held for naught, as though not herein contained, and
the remainder of this Security Deed shall remain operative and in full force
and effect.
22. BANKRUPTCY, REORGANIZATION OR ASSIGNMENT. It shall be a default
hereunder if the Borrower or any general partner of Borrower shall: (a)
consent to the appointment of a receiver, trustee or liquidator of all or a
substantial part of Borrower's assets, or (b) be adjudicated a bankrupt or
insolvent, or file a voluntary petition in bankruptcy, or admit in writing its
inability to pay its debts as they become due, or (c) make a general assignment
for the benefit of creditors, or (d) file a petition under or take advantage of
any insolvency law, or (e) file an answer admitting the material allegations of
a petition filed against the Borrower or any general partner of Borrower in any
bankruptcy, reorganization or insolvency proceeding or fail to cause the
dismissal of such petition within sixty (60) days after the filing of said
petition, or (f) take action for the purpose of effecting any of the foregoing,
or (g) if any order, judgment or decree shall be entered upon an application of
a creditor of Borrower or any general partner of Borrower by a court of
competent jurisdiction approving a petition seeking appointment of a receiver
or trustee of all or a substantial part of the Borrower's assets or any of
Borrower's general partner's assets and such order, judgment or decree shall
continue unstayed and in effect for a period of sixty (60) days.
23. TIME IS OF THE ESSENCE; MONETARY AND NON-MONETARY DEFAULTS. It
is understood by Borrower that time is of the essence hereof in connection with
all obligations of Borrower herein, in the Note, the Assignment (as defined in
Paragraph 34) and any of the other Loan Documents.
If default be made in the payment of any installment of the Note,
whether of principal or interest, or in the payment of any other sums of money
referred to herein or in the Note, promptly and fully when the same shall be
due and such Monetary Default (as hereinafter defined) remains uncured after
the Monetary Cure Period (as hereinafter defined), if applicable (if the
Monetary Cure Period is not applicable, no notice or demand from Lender to
Borrower shall be required), or in the event a breach or default be made by the
Borrower in any one of the agreements, conditions and covenants of said Note,
this Security Deed, the Assignment or any Loan Documents evidencing or securing
the Note, or in the event that each and every one of said agreements,
conditions and covenants are not otherwise duly, promptly and fully discharged
or performed, and any such Non-Monetary Default (as hereinafter defined)
remains uncured for a period of thirty (30) days after written notice thereof
from the Lender to the Borrower has been delivered in the manner prescribed in
Paragraph 41 hereof (except that if such Non-Monetary Default cannot reasonably
be cured within the 30 day period Borrower shall have a reasonable period of
time to cure such default provided that Borrower commences the cure of such
default within the 30 day period and thereafter diligently pursues the cure to
completion), Lender at its sole option may thereupon or thereafter declare the
indebtedness evidenced by the Note, as well as all other monies secured hereby,
including, without limitation, all Prepayment Premiums and late payment
charges, to be forthwith due and payable, whereupon the principal of and the
interest accrued on the indebtedness evidenced by the Note and all other sums
secured by this Security Deed at the option of Lender shall immediately become
due and payable as if all of said sums of money were originally stipulated to
be paid on such day, and thereupon, the Lender may avail itself of all rights
and remedies provided by law and may prosecute a suit at law or in equity as if
all monies secured hereby had matured prior to its institution, anything in
this Security Deed or in the Note to the contrary notwithstanding. Lender
shall give Borrower notice in the manner described in Paragraph 41 hereof of,
and a 5 day right-to-cure period ("Monetary Cure Period") to cure, any Monetary
Default (as hereinafter defined); provided, however such Monetary Cure Period
shall be limited to once per loan year for the term of the Note. Lender shall
have no obligation to give Borrower notice of any Incurable Default (as
hereinafter defined) prior to exercising its right, power and privilege to
accelerate the maturity of the indebtedness secured hereby.
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As used herein, the term "Monetary Default" shall mean any default which
can be cured by the payment of money such as, but not limited to, the payment
of principal and interest due under the Note, the payment of taxes, assessments
and insurance premiums when due as provided in this Security Deed. As used
herein, the term "Non-Monetary Default" shall mean any default which is not a
Monetary Default or an Incurable Default. As used herein, the term "Incurable
Default" shall mean (i) any voluntary or involuntary sale, assignment,
mortgaging, encumbering or transfer in violation of the covenants contained in
Paragraph 30 hereof; or (ii) if Borrower, or its general partner, should make
an assignment for the benefit of creditors, become insolvent, or file a
petition in bankruptcy (including but not limited to, a petition seeking a
rearrangement or reorganization).
If a default shall occur hereunder and is not timely cured as herein
provided, and, as a result thereof, the indebtedness secured hereby is
accelerated and is due and payable in full, the Lender, at its option, may sell
the Property or any part of the Property at public sale or sales before the
door of the courthouse of the County in which the Property or any part of the
Property is situated, to the highest bidder for cash, in order to pay the
indebtedness secured hereby and accrued interest thereon and insurance
premiums, liens, assessments, taxes and charges, including utility charges, if
any, with accrued interest thereon, and all expenses of the sale and of all
proceedings in connection therewith, including Reasonable Attorney's Fees after
advertising the time, place and terms of sale once a week for four (4) weeks
immediately preceding such sale (but without regard to the number of days) in a
newspaper in which Sheriff's sales are advertised in said County. The
foregoing notwithstanding, the Lender may sell, or cause to be sold, any
tangible or intangible personal property, or any part thereof, and which
constitute a part of the security hereunder, in the foregoing manner, or as may
otherwise be provided by law. The Lender may bid and purchase at any such sale
and, if Lender should be the successful bidder at such sale, may satisfy the
Lender's obligation to purchase pursuant to the Lender's bid by canceling an
equivalent portion of any indebtedness then outstanding and secured hereby. At
any such sale, the Lender may execute and deliver to the purchaser a conveyance
of the Property or any part of the Property in fee simple with full warranties
of title and to this end, the Borrower hereby constitutes and appoints the
Lender the agent and attorney in fact of the Borrower to make such sale and
conveyance, and thereby to divest the Borrower of all right, title and equity
that the Borrower may have in and to the Property and to vest the same in the
purchaser or purchasers at such sale or sales, and all the acts and doings of
said agent and attorney in fact are hereby ratified and confirmed and any
recitals in said conveyance or conveyances as to facts essential to a valid
sale shall be binding on the Borrower. The aforesaid power of sale and agency
hereby granted are coupled with an interest and are irrevocable by death or
otherwise, are granted as cumulative of the other remedies provided by law for
collection of the indebtedness secured hereby and shall not be exhausted by one
exercise thereof but may be exercised until full payment of all sums secured
hereby. Upon any such sale pursuant to the aforementioned power of sale and
agency, the proceeds of said sale shall be applied first to payment of the
indebtedness secured hereby and accrued interest and late charges thereon, then
to said insurance premiums, liens, assessments, taxes and charges including
utility charges with accrued interest thereon and then to the reasonable
expenses of such sale and of all proceedings in connection therewith, including
reasonable attorney's fees, and finally, the remainder, if any, shall be paid
to the party legally entitled to same.
In the event of any such public sale pursuant to the aforesaid power of
sale and agency, the Borrower shall be deemed a tenant holding over and shall
forthwith deliver possession of the Property to the purchaser or purchasers at
such sale or be summarily dispossessed according to provisions of law
applicable to tenants holding over.
The failure or omission on the part of the Lender to exercise the option
for acceleration of maturity and to foreclose or exercise the power of sale in
this Security Deed following any default as aforesaid or to exercise any other
option or remedy granted hereunder to Lender when entitled to do so in any one
or more instances, or the acceptance by Lender of partial payment of the
indebtedness secured hereby, whether before or subsequent to Borrower's
defaults hereunder, shall not constitute a waiver of any such default or the
right to exercise any such option or remedy, but such option or remedy shall
remain continuously in force. Acceleration of maturity, once claimed hereunder
by Lender, at the option of Lender, may be rescinded by written acknowledgment
to that effect by Lender, but the tender and acceptance of partial payments
alone shall not in any way affect or rescind such acceleration of maturity.
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In case Lender shall have proceeded to enforce any right, power
or remedy under this Security Deed by foreclosure, entry or otherwise, or in
the event Lender commences advertising of the intended exercise of the sale
under power provided hereunder and such proceeding or advertisement shall have
been withdrawn, discontinued or abandoned for any reason, or shall have been
determined adversely to Lender, then in every such case (i) Borrower and Lender
shall be restored to their former positions and rights, (ii) all rights, powers
and remedies of Lender shall continue as if no such proceeding had been taken,
(iii) each and every Default declared or occurring prior or subsequent to such
withdrawal, discontinuance or abandonment shall be and shall be deemed to be a
continuing Default, and (iv) neither this Security Deed, nor the Note, nor any
other instrument concerned therewith, shall be or shall be deemed to have been
reinstated or otherwise affected by such withdrawal, discontinuance or
abandonment, and Borrower hereby expressly waives the benefit of any statute or
rule of law now provided, or which may hereafter be provided, which would
produce a result contrary to or in conflict with the above.
24. PROTECTION OF LENDER'S SECURITY. At any time after default
hereunder, the Lender is authorized, without notice and in its sole discretion,
to enter upon and take possession of the Property or any part thereof and to
perform any acts which the Lender deems necessary or proper to conserve the
security herein intended to be provided by the Property, to operate any
business or businesses conducted thereon and to collect and receive all rents,
issues and profits thereof and therefrom, including those past due as well as
those accruing thereafter.
25. APPOINTMENT OF RECEIVER. If, at any time after a default
hereunder, in the sole discretion of the Lender, a receivership may be
necessary to protect the Property or its rents, issues, revenue, profits or
proceeds, whether before or after maturity of the indebtedness secured hereby
and whether before or at the time of or after the institution of suit to
collect such indebtedness, or to enforce this Security Deed, the Lender, as a
matter of strict right and regardless of the value of the Property or the
amounts due hereunder or secured hereby, or of the solvency of any party bound
for the payment of such indebtedness, shall have the right, upon ex parte
application and without notice to anyone, and by any court having jurisdiction,
to the appointment of a receiver to take charge of, manage, preserve, protect
and operate the Property, to collect the rents, issues, revenues, profits,
proceeds and income thereof, to make all necessary and needful repairs, and to
pay all taxes, assessments and charges against the Property and all premiums
for insurance thereon, and to do such other acts as may by such court be
authorized and directed, and after payment of the expenses of the receivership
and the management of the Property, to apply the net proceeds of such
receivership in reduction of the indebtedness secured hereby or in such other
manner as the said court shall direct, notwithstanding the fact that the amount
owing thereon may not then be due and payable or the said indebtedness is
otherwise adequately secured. Such receivership shall, at the option of
Lender, continue until full payment of all sums hereby secured or until title
to the Property shall have passed by sale under this Security Deed. Borrower
hereby specifically waives its right to object to the appointment of a receiver
as aforesaid and hereby expressly agrees that such appointment shall be made as
an admitted equity and as a matter of absolute right to the Lender.
26. RIGHTS AND REMEDIES CUMULATIVE; FORBEARANCE NOT A WAIVER. The
rights and remedies herein provided are cumulative and Lender, as the holder of
the Note and of every other obligation secured hereby, may recover judgment
thereon, issue execution therefor and resort to every other right or remedy
available at law or in equity, without first exhausting any right or remedy
available to Lender and without affecting or impairing the security of any
right or remedy afforded hereby, and no enumeration of special rights or powers
by any provisions hereof shall be construed to limit any grant of general
rights or powers, or to take away or limit any and all rights granted to or
vested in Lender by law, and Borrower further agrees that no delay or omission
on the part of the Lender to exercise any rights or powers accruing to it
hereunder shall impair any such right or power or shall be construed to be a
waiver of any such event of default hereunder or any acquiescence therein; and
every right, power and remedy granted herein or by law to the Lender may be
exercised from time to time as often as may be deemed expedient by the Lender.
27. MODIFICATION NOT AN IMPAIRMENT OF SECURITY. Lender, without
notice and without regard to the consideration, if any, paid therefor, and
notwithstanding the existence at the time of any inferior mortgages, deeds to
secure debt, or other liens thereon, may release any part of the
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15
security described herein or may release any person or entity liable for any
indebtedness secured hereby without in any way affecting the priority of this
Security Deed, to the full extent of the indebtedness remaining unpaid
hereunder, upon any part of the security not expressly released. Lender may,
at its option and within its sole discretion, also agree with any party
obligated on said indebtedness, or having any interest in the security
described herein, to extend the time for payment of any part or all of the
indebtedness secured hereby, and such agreement shall not, in any way, release
or impair this Security Deed, but shall extend the same as against the title of
all parties having any interest in said security, which interest is subject to
this Security Deed.
28. PROPERTY MANAGER. The exclusive manager of the Property shall
be the Borrower or such other manager as may be first approved in writing by
Lender. The exclusive leasing agent of the Property, if other than the
foregoing party, shall be first approved in writing by the Lender. The
governing management and leasing contracts shall be subordinate to this
Security Deed and satisfactory to and subject to the written approval of Lender
throughout the term of the indebtedness secured hereby. Upon default in either
of these requirements, then the whole of the indebtedness hereby secured shall,
at the election of the Lender, become immediately (subject to the cure period
for a Non-Monetary Default) due and payable, together with any default premium
and late payment charges required by the Note, and the Lender shall be entitled
to exercise any or all remedies provided or referenced in this Security Deed.
29. MODIFICATION NOT A WAIVER. In the event Lender: (a) releases,
as aforesaid any part of the security described herein or any person or entity
liable for any indebtedness secured hereby, or (b) grants an extension of time
for the payment of the Note, or (c) takes other or additional security for the
payment of the Note, or (d) waives or fails to exercise any rights granted
herein, in the Note, or any of the other Loan Documents, any said act or
omission shall not release Borrower, subsequent purchasers of the Property or
any part thereof, or makers, sureties, endorsers or guarantors of the Note, if
any, from any obligation or any covenant of this Security Deed, the Note, or
any of the other Loan Documents, nor preclude Lender from exercising any right,
power or privilege herein granted or intended to be granted in the event of any
other default then made, or any subsequent default.
30. TRANSFER OF PROPERTY OR CONTROLLING INTEREST IN BORROWER;
ASSUMPTION. Except as hereafter provided, without the prior written consent of
the Lender, the sale, transfer, assignment, or conveyance of all or any portion
of the Property, or a transfer, assignment, or conveyance of a "controlling
interest" in Borrower whether voluntarily or by operation of law, without the
prior written consent of Lender, shall constitute a default under the terms of
this Security Deed and entitle the Lender, at its sole option, to accelerate
all sums due on the Note together with any Prepayment Premiums, late payment
charges, or any other amounts secured hereby. As used herein the term
"controlling interest" means, in the case of a partnership, greater than a 50%
interest in the partnership or votes greater than 50% of the votes required to
approve any major decisions (as opposed to day-to-day or ministerial decisions)
of the partnership, and in the case of a corporation, greater than 50% of the
outstanding voting shares of stock of the corporation. (Notwithstanding the
foregoing sentence, a transfer of partnership interests or partnership units in
the ordinary course of business of Borrower as an "up-REIT" real estate
investment trust structure shall be permitted and shall not constitute a
conveyance of a "controlling interest" in Borrower.) Lender, may, however,
elect to waive the option to accelerate granted hereunder if, prior to any such
sale, transfer, assignment or conveyance of the Property, the following
conditions shall be fully satisfied: (a) the Lender acknowledges in writing
that, in its sole discretion, the creditworthiness of the proposed transferee
and the ability and experience of the proposed transferee to operate the
Property are satisfactory to Lender, and (b) Lender and the proposed transferee
shall enter into an agreement in writing that (i) the interest payable on the
indebtedness secured hereby shall be at such rate as Lender shall determine,
(ii) the repayment schedule as set forth in the Note shall be modified by the
Lender in its sole discretion to amortize the then unpaid principal balance
secured hereby over a period determined by Lender in its sole discretion
without a change in the maturity date of the Note, (iii) an assumption fee to
be determined by Lender may be charged by the Lender in its sole discretion,
and (iv) the proposed transferee shall assume in writing all obligations of
Borrower under the Note, this Security Deed and the other Loan Documents. In
the event the ownership of the Property, or any part thereof, shall become
vested in a person or entity other than the Borrower, whether with or without
the prior written consent of the Lender, the Lender may, without notice to the
Borrower, deal with such successor or successors in interest with reference to
the Property, this Security Deed and the Note in the same manner and to the
same extent as with the Borrower without
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16
in any way vitiating or discharging the Borrower's liability hereunder or under
the Note. No sale, transfer or conveyance of the Property, no forbearance on
the part of the Lender and no extension of time for the payment of the debt
hereby secured given by the Lender shall operate to release, discharge, modify,
change or affect the original liability of the Borrower, either in whole or in
part, unless expressly set forth in writing executed by the Lender.
Notwithstanding anything contained herein to the contrary, Borrower hereby
waives any right it now has or may hereafter have to require Lender to prove an
impairment of its security as a condition to exercise the Lender's rights under
this Paragraph 30. If a transfer of the Property, or a portion thereof, or a
transfer of a "controlling interest" in Borrower is approved by Lender: (a)
Lender must receive for its review and approval copies of all transfer
documents, (b) the approved transferee must assume in writing all obligations
under the Note, this Security Deed and any other Loan Documents, and (c)
Borrower or the approved transferee must pay all costs and expenses in
connection with such transfer and assumption, including without limitation, all
fees and expenses incurred by Lender.
Lender acknowledges that Borrower's general partner, Xxxxxxx Realty
Investors, Inc. ("RRII"), is a real estate investment trust and that it is
contemplated that Borrower may convey its interest in the Property to RRII.
Therefore, notwithstanding anything contained in this Paragraph 30 to the
contrary, the prior written consent of the Lender shall not be required and
Lender shall not be entitled to accelerate the indebtedness evidenced by the
Note or change the Loan terms upon a transfer so long as (i) the transfer is
made to RRII; (ii) there is no change in the ownership interest of RRII except
for transfers of shares of the real estate investment trust in the ordinary
course of business; and (iii) Lender shall be given prompt notice and
documentation of such transfer, and Borrower shall pay all of Lender's out-of-
pocket expenses associated with such transfer; provided, however, that Borrower
shall notify Lender in writing of any such transfer not less than thirty (30)
days prior to the effective date of such transfer. In addition to the
foregoing, Lender shall permit one (1) bona fide, arm's length transfer of the
Property to any transferee without change in the loan terms; provided, however,
that no such transfer shall be valid or permitted hereunder unless: (i) Lender
receives prior written notice of such proposed transfer, (ii) such proposed
transferee has been approved in writing by the Lender (taking into account such
factors as transferee's creditworthiness, business experience and managerial
capabilities) such approval not to be unreasonably withheld, (iii) Lender is
paid a transfer fee in the amount of one percent (1%) of the then outstanding
principal balance of the Note, (iv) Borrower or the approved transferee pays
all fees and expenses incurred by Lender in connection with such transfer and
assumption, including, without limitation, inspection and investigation fees
and Reasonable Attorneys' Fees (as hereinafter defined), and (v) there is no
existing default hereunder or event which with the passage of time would
constitute a default hereunder. Any transfer of all or any portion of the
Property which does not strictly comply with the terms and conditions of the
foregoing shall be a default hereunder and shall entitle the Lender to exercise
all rights and remedies provided in this Security Deed.
31. FURTHER ENCUMBRANCE PROHIBITED; SUBROGATION. So long as the
Note secured hereby remains unpaid, the Borrower shall neither voluntarily nor
involuntarily permit the Property or any part thereof to become subject to any
secondary or other junior lien, mortgage, security interest or encumbrance of
any kind whatsoever other than taxes for the current year and the Permitted
Exceptions, without the prior written consent of the Lender, and the imposition
of any such secondary lien, mortgage, security interest or encumbrance shall
constitute an event of default hereunder and entitle the Lender, at its sole
option, to declare all sums due on account of the Note to be and become
immediately due and payable. In the event that Lender shall hereafter give its
written consent to the imposition of any such secondary lien, mortgage,
security interest or other encumbrance upon the Property, the Lender, at its
sole option, shall be entitled to accelerate the maturity of the Note and
exercise any and all remedies provided and available to Lender hereunder in the
event that the holder of any such secondary lien or encumbrance shall institute
foreclosure or other proceedings to enforce the same; it being understood and
agreed that a default under any instrument or document evidencing, securing or
secured by any such secondary lien or encumbrance shall be and constitute an
event of default hereunder. In the event all or any portion of the proceeds of
the loan secured hereby are used for the purpose of retiring debt or debts
secured by prior liens on the Property, the Lender shall be subrogated to the
rights and lien priority of the holder of the lien so discharged.
32. CONVEYANCE OF MINERAL RIGHTS PROHIBITED. Borrower agrees that
the making of any oil, gas or mineral lease or the sale or conveyance of any
mineral interest or right to
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17
explore for minerals under, through or upon the Property would impair the value
of the Property securing the Note, and that the Borrower shall have no right,
power or authority to lease the Property, or any part thereof, for oil, gas or
other mineral purposes, or to grant, assign or convey any mineral interest of
any nature, or the right to explore for oil, gas and other minerals, without
first obtaining from the Lender express written permission therefor, which
permission shall not be valid until recorded among the Public Records of
Gwinnett County, Georgia. The Borrower further agrees that if the Borrower
shall make, execute or enter into any such lease or attempt to grant any such
mineral rights without such prior written permission of the Lender, then the
Lender shall have the option, without notice, to declare the same to be a
default hereunder and to declare the indebtedness hereby secured immediately
due and payable. Whether or not the Lender shall consent to such lease or
grant of mineral rights, the Lender shall receive the entire consideration to
be paid for such lease or grant of mineral rights, with the same to be applied
to the indebtedness hereby secured notwithstanding the fact that the amount
owing thereon may not then be due and payable or the said indebtedness is
otherwise adequately secured; provided, however, that the acceptance of such
consideration shall in no way impair the lien of this Security Deed on the
Property.
33. ESTOPPEL CERTIFICATION BY BORROWER. Borrower, upon request
therefor made either personally or by mail, shall certify in writing to Lender
(or any party designated by Lender) in form satisfactory to Lender the amount
of principal and interest then outstanding under the terms of the Note and any
other sums due and owing under this Security Deed or any of the other Loan
Documents and whether any offsets or defenses exist against the mortgage debt.
Such certification shall be made by Borrower within ten (10) days if the
request is made personally, or within twenty (20) days if the request is made
by mail.
34. CROSS-DEFAULT. The Note is also secured by the terms,
conditions and provisions of an Assignment of Leases, Rents and Profits
(hereinafter referred to as the "Assignment") recorded among the Public Records
of Gwinnett County, Georgia and, additionally, may be secured by contracts or
agreements of guaranty or other security instruments. The terms, conditions
and provisions of each security instrument shall be considered a part hereof as
fully as if set forth herein verbatim. Any default under this Security Deed or
the Note secured hereby shall constitute an event of default under the
Assignment or any of the other Loan Documents, and any default under the
Assignment or other Loan Documents shall likewise constitute a default
hereunder and under the Note. Notwithstanding the foregoing, the enforcement
or attempted enforcement of this Security Deed or any of the other Loan
Documents now or hereafter held by Lender shall not prejudice or in any manner
affect the right of Lender to enforce any other Loan Document; it being
understood and agreed that the Lender shall be entitled to enforce this
Security Deed and any of the other Loan Documents now or hereafter held by it
in such order and manner as Lender, in its sole discretion, shall determine.
35. EXAMINATION OF BORROWER'S RECORDS. Borrower will maintain
complete and accurate books and records showing in detail the income and
expenses of the Property, and will permit upon no less than two (2) days notice
the Lender and its representatives to examine said books and records and all
supporting vouchers and data during normal business hours and from time to time
upon request by the Lender, in such place as such books and records are
customarily kept, and will furnish to the Lender, within one hundred twenty
(120) days after the close of each calendar year, audited financial statements
of each general partner of Borrower and statements of operations of the
Property certified by the general partner of the Borrower to be true and
correct and showing in detail all income derived from and expenses incurred in
connection with the ownership of the Property. All such statements shall be in
form acceptable to Lender and shall be prepared in accordance with generally
accepted accounting principles and shall include an annual rent schedule. In
the event the Borrower fails to provide such statements to the Lender within
the time prescribed above, the Borrower shall pay the Lender the sum of TWO
HUNDRED AND NO/100 DOLLARS ($200.00) for each successive month for which
statements are delinquent. In the event of default hereunder, Lender shall
have the right to require that said financial statements of the Property be
audited and certified by a certified public accountant acceptable to the
Lender, all at the sole cost and expense of the Borrower.
36. ALTERATION, REMOVAL AND CHANGE IN USE OF PROPERTY PROHIBITED.
Borrower covenants and agrees to permit or suffer none of the following without
the prior written consent of the Lender:
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(a) Any structural alteration of, or addition to, the
Improvements now or hereafter situated upon the Real Property or the
addition of any new buildings or other structure(s) thereto other than
erection or removal of non-load bearing interior walls; or
(b) The removal, transfer, sale or lease of the Property,
except that the renewal, replacement or substitution of fixtures,
equipment, machinery, apparatus and articles of personal property
(replacement or substituted items must be of like or better quality than
the removed items in their original condition) encumbered hereby may be
made in the normal course of business; or
(c) The use of any of the Improvements now or hereafter
situated on the Real Property for any purpose other than as an apartment
complex project and related facilities.
37. FUTURE ADVANCES SECURED. This Security Deed shall secure not
only existing indebtedness, but also such future advances, whether such
advances are obligatory or to be made at the option of the Lender. Upon
request of Borrower, and at Lender's option prior to release of this Security
Deed, Lender may make future advances to Borrower. All future advances with
interest thereon shall be secured by this Security Deed to the same extent as
if such future advances were made on the date of the execution of this Security
Deed unless the parties shall agree otherwise in writing, but the total secured
indebtedness shall not exceed at any one time a maximum principal amount equal
to double the face amount of the Note plus interest, and costs of collection
including court costs and Reasonable Attorneys' Fees. Any advances or
disbursements made for the benefit or protection of or the payment of taxes,
assessments, levies or insurance upon the Property, with interest on such
disbursements as provided herein, shall be added to the principal balance of
the Note and collected as a part thereof. To the extent that this Security
Deed may secure more than one note, a default in the payment of any note shall
constitute a default in the payment of all such notes.
38. EFFECT OF SECURITY AGREEMENT. Borrower does hereby grant and
this Security Deed is and shall be deemed to create, grant, give and convey a
mortgage of, a lien and encumbrance upon, and a present security interest in
both real and personal property, including all improvements, goods, chattels,
furniture, furnishings, fixtures, equipment, apparatus, appliances and other
items of tangible or intangible personal property, hereinabove particularly or
generally described and conveyed, whether now or hereafter affixed to, located
upon, necessary for or used or useful, either directly or indirectly, in
connection with the operation of the Property as an apartment complex project,
and this Security Deed shall also serve as a "security agreement" within the
meaning of that term as used in the Uniform Commercial Code as adopted and in
force from time to time in the State of Georgia, and shall be operative and
effective as a security agreement in addition to, and not in substitution for,
any other security agreement executed by the Borrower in connection with the
extension of credit or loan transaction secured hereby. Upon the occurrence of
a default hereunder or Borrower's breach of any other covenants or agreements
between the parties entered into in conjunction herewith, Lender shall have the
remedies (i) as prescribed herein, or (ii) as prescribed by general law, or
(iii) as prescribed by the specific statutory consequences now or hereafter
enacted and specified in said Uniform Commercial Code, all at Lender's sole
election. Borrower and Lender agree that the filing of any such financing
statement or statements in the records normally having to do with personal
property shall not in any way affect the agreement of Borrower and Lender that
everything used in connection with the production of income from the Property
or adapted for use therein or which is described or reflected in this Security
Deed, is, and at all times and for all purposes and in all proceedings, both
legal or equitable, shall be, regarded as part of the real estate conveyed
hereby regardless of whether (i) any such item is physically attached to the
improvements, (ii) serial numbers are used for the better identification of
certain items capable of being thus identified in an exhibit to this Security
Deed or elsewhere, or (iii) any such item is referred to or reflected in any
such financing statement or statements so filed at any time. Similarly, the
mention in any such financing statement or statements of the rights in and to
(i) the proceeds of any fire and hazard insurance policy, or (ii) any award in
eminent domain proceedings for a taking or for loss of value, or (iii)
Borrower's interest as lessor or landlord in any present or future lease or
rights to income growing out of the use and occupancy of the Property, whether
pursuant to lease or otherwise, shall not in any way alter any of the rights of
Lender as determined by this Security Deed or affect the priority of Lender's
security interest granted hereby or by any other recorded document, it being
understood and agreed that such mention in such financing statement or
statements is solely for the protection of Lender
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in the event any court shall at any time hold, with respect to the foregoing
clauses (i), (ii) or (iii) of this sentence, that notice of Lender's priority
of interest, to be effective against a particular class of persons, must be
filed in the Uniform Commercial Code records. Borrower warrants that (i)
Borrower's (that is, "Debtor's") name, identity and residence or principal
place of business are as set forth in Exhibit C attached hereto and made a part
hereof; (ii) Borrower (that is, "Debtor") has been using or operating under
said name and identity without change for the time period set forth in Exhibit
C; and (iii) the location of the collateral is upon the Property. Borrower
covenants and agrees that Borrower will furnish Lender with notice of any
change in the matters addressed by clauses (i) or (iii) of this paragraph
within thirty (30) days of the effective date of any such change and Borrower
will promptly execute any financing statements or other instruments deemed
necessary by Lender to prevent any filed financing statement from becoming
misleading or losing its perfected status. If Borrower fails to promptly
execute any such financing statements or other instruments, Lender may make,
execute, record, file, re-record, and re-file any and all such financing
statements or other instruments for and in the name of Borrower, and Borrower
hereby irrevocably appoints Lender the agent and attorney-in-fact of Borrower
so to do. This appointment of Lender as Borrower's attorney-in-fact is coupled
with an interest and is irrevocable by death or otherwise. The information
contained in this paragraph is provided in order that this Security Deed shall
comply with the requirements of the Uniform Commercial Code, as enacted in the
State of Georgia, for instruments to be filed as financing statements. The
names of the "Debtor" and the "Secured Party," the identity and residence or
principal place of business of "Debtor," the time period for which "Debtor" has
been using or operating under said name and identity without change are as set
forth in Schedule 1 of Exhibit C; the mailing address of the "Secured Party"
from which information concerning the security interest may be obtained, and
the mailing address of "Debtor," are as set forth in Schedule 2 of said Exhibit
C; and a statement indicating the types, or describing the items, of collateral
is set forth hereinabove.
The Borrower agrees to and shall, upon the request of Lender, execute
and deliver to Lender, in form and content satisfactory to Lender, such
financing statements, descriptions of property and such further assurances as
Lender, in its sole discretion, may from time to time consider necessary to
create, perfect, continue and preserve the lien and encumbrances hereof and the
security interest granted herein upon and in such real and personal property
and fixtures described herein, including all buildings, improvements, goods,
chattels, furniture, furnishings, fixtures, equipment, apparatus, appliances
and other items of tangible and intangible personal property herein
specifically or generally described and intended to be the subject of the
security interest, lien and encumbrance hereby created, granted and conveyed.
Without the prior written consent of Lender, Borrower shall not create or
suffer to be created, pursuant to the Uniform Commercial Code, any other
security interest in such real and personal property and fixtures described
herein. The Lender, at the expense of the Borrower, may or shall cause such
statements, descriptions and assurances, as herein provided in this Paragraph
38, and this Security Deed to be recorded and re-recorded, filed and refiled,
at such times and in such places as may be required or permitted by law to so
create, perfect and preserve the lien and encumbrance hereof upon all of the
Property.
39. TERMS OF CONTRACT SURVIVE CLOSING. The terms and provisions of
the application/contract between Lender and Borrower are incorporated herein by
reference, said application/contract being dated February 27, 1996, and any
subsequent amendment thereto (hereinafter referred to as the "Contract"). All
terms and conditions of the Contract not expressly set forth in this Security
Deed, the Note and any other Loan Documents shall survive the closing hereof
and remain in full force and effect. In the event any conflict exists between
the terms, conditions and provisions of the Contract and the Loan Documents,
the terms, conditions and provisions of the Loan Documents shall prevail.
40. SUCCESSORS AND ASSIGNS; TERMINOLOGY. The provisions hereof
shall be binding upon the Borrower and the successors and assigns of the
Borrower, and inure to the benefit of Lender and its successors and assigns.
Where more than one Borrower is named herein, the obligations and liabilities
of said Borrower shall be joint and several. Wherever used in this Security
Deed, unless the context clearly indicates a contrary intent or unless
otherwise specifically provided herein, the word "Borrower" shall mean Borrower
and/or any subsequent owner or owners of the Property, the word "Lender" shall
mean Lender or any subsequent holder or holders of this Security Deed, the word
"Note"
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shall mean Note(s) secured by this Security Deed, and the word "person" shall
mean an individual, trustee, trust, corporation, partnership or unincorporated
association.
41. NOTICES. All notices hereunder shall be deemed to have been
duly given if mailed by United States registered or certified mail, with return
receipt requested, postage prepaid, or if deposited with a nationally
recognized overnight courier such as Federal Express, to the parties at the
following addresses (or at such other addresses as shall be given in writing by
any party to the others), and shall be deemed complete upon receipt (which, in
the case of delivery by certified mail, shall be as evidenced by the return
receipt, and, in the case of delivery by a nationally recognized overnight
courier, shall be as evidenced by the confirmation of delivery received by the
courier) or refusal to accept receipt:
To Borrower: Xxxxxxx Properties Residential, L.P.
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
To Lender: West Coast Life Insurance Company
c/o Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Real Estate Investments
Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Real Estate Investments
42. GOVERNING LAW. This Security Deed is to be governed by and
construed in accordance with the laws of the State of Georgia, and, if
controlling, by the laws of the United States.
43. RIGHTS OF LENDER CUMULATIVE. The rights of the Lender arising
under the clauses and covenants contained in this Security Deed shall be
separate, distinct and cumulative and none of them shall be in exclusion of the
others; and no act of the Lender shall be construed as an election to proceed
under any one provision herein to the exclusion of any other provisions,
anything herein or otherwise to the contrary notwithstanding.
44. MODIFICATIONS. This Security Deed cannot be changed, altered,
amended or modified except by an agreement in writing and in recordable form,
executed by both Borrower and Lender.
45. EXCULPATION. Subject to the last sentence of this Paragraph 45,
the liability of Borrower with respect to the payment of principal and interest
under the Note shall be "non-recourse" and, accordingly, Lender's source of
satisfaction of said indebtedness and Borrower's other obligations hereunder
and under the other Loan Documents shall be limited to the Property and
Lender's receipt of the rents, issues and profits from the Property and Lender
shall not seek to procure payment out of any other assets of Borrower or any
person or entity comprising Borrower, or to seek any judgment (except as
hereinafter provided) for any sums which are or may be payable under the Note,
this Security Deed or any of the other Loan Documents, or for any claim or
judgment (except as hereafter provided) for any deficiency remaining after
foreclosure of this Security Deed. Notwithstanding the above, nothing herein
contained shall be deemed to be a release or impairment of the Note or the
security therefor intended by this Security Deed and the other Loan Documents,
or be deemed to preclude Lender from exercising its rights to foreclose this
Security Deed or to enforce any of its other rights or remedies under the Loan
Documents.
Notwithstanding the foregoing, it is expressly understood and agreed
that the aforesaid limitation on liability shall in no way affect or apply to
the Borrower's continued personal liability for:
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(1) fraud or intentional misrepresentation made in or in connection
with the Note or any of the other Loan Documents governing,
securing or pertaining to the payment thereof;
(2) failure to pay taxes prior to delinquency or to pay assessments
prior to delinquency, or to pay charges for labor, materials or
other charges which can create liens on any portion of the
Property;
(3) the misapplication of (i) proceeds of insurance covering any
portion of the Property, or (ii) proceeds of the sale or
condemnation of any portion of the Property, or (iii) rentals
received by or on behalf of Borrower subsequent to the date on
which Lender makes written demand therefor pursuant to any of
the Loan Documents;
(4) causing or permitting waste to occur on, in or about the
Property, and failure to maintain the Property, excepting
ordinary wear and tear;
(5) loss by fire or casualty to the extent not compensated by
insurance proceeds collected by Lender;
(6) the return to Lender of all unearned advance rentals and
security deposits paid by tenants of the Property and not
refunded to or forfeited by such tenants;
(7) the return to Borrower of any and all fees paid to Borrower by
tenants of the Property which fees permit tenants to terminate
their leases;
(8) the return of, or reimbursement for, all personalty owned by
Borrower taken from the Property by or on behalf of Borrower,
out of the ordinary course of business, and not replaced by
items of equal or greater value than the original value of the
personalty so removed;
(9) all court costs and Reasonable Attorneys' Fees actually incurred
which are provided for in the Note or in any other Loan Document
governing, securing or pertaining to the payment of the Note;
and
(10) (i) the removal of any chemical, material or substance, exposure
to which is prohibited, limited or regulated by any Federal,
State, County, Regional or Local Authority which may or could
pose a hazard to the health and safety of the occupants of the
Property, regardless of the source of origination; and (ii) the
restoration of the Property to comply with all governmental
regulations pertaining to hazardous waste found in, on or under
the Property, regardless of the source of origination; and (iii)
any indemnity or other agreement to hold the Lender harmless
from and against any and all losses, liabilities, damages,
injuries, costs, expenses of any and every kind arising under
Paragraph 3 of this Security Deed or under the Environmental
Indemnity Agreement. Borrower shall not be liable for removal
of any of the foregoing materials from the Property if such
materials were placed on the Property subsequent to the date of
foreclosure of this Security Deed or acceptance of a deed in
lieu thereof, or relinquishment of control of the Property
pursuant to a transfer approved in writing by Lender; provided,
that such transferee assumes in writing all obligations of
Borrower pertaining to Hazardous Materials pursuant to the Loan
Documents. Liability under this subparagraph shall extend
beyond repayment of the Note and compliance with the terms of
this Security Deed unless at such time Borrower provides Lender
an environmental assessment report acceptable to Lender showing
the Property to be free of Hazardous Materials and not in
violation of Hazardous Waste Laws. Borrower shall bear the
burden of proof in establishing the date on which any such
Hazardous Materials were placed on the Property.
(11) (a) any and all costs incurred in order to cause the Property to
comply with the applicable accessibility provisions of The Fair
Housing Act of 1988, as the same may now or hereafter be
amended, and The Americans With Disabilities Act of 1990, as the
same may now or hereafter be amended, and any and all rules and
regulations that may now or
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22
hereafter be promulgated in connection with said acts, and (b)
any indemnity or other agreement to hold the Lender harmless
from and against any and all losses, liabilities, damages,
injuries, costs and expenses of any and every kind arising under
Paragraph 3 of this Security Deed regarding accessibility for
the disabled or handicapped or under the Accessibility Indemnity
Agreement from Borrower to Lender of even date herewith;
provided, however, Borrower shall not be liable for compliance
with any accessibility laws that first become effective, or for
any violation of any accessibility laws resulting from
alterations or improvements to the Property that are performed,
subsequent to Lender's actually taking possession of the
Property pursuant to foreclosure of this Security Deed or
acceptance of a deed in lieu thereof, or subsequent to any
transfer of ownership of the Property that has the prior written
approval of Lender; provided that such transferee assumes in
writing all obligations of Borrower with respect to compliance
with accessibility laws under this Security Deed and the
Accessibility Indemnity Agreement.
(12) obligations of Borrower for the face amount of any letter of
credit held by Lender and delivered by Borrower in connection
with the loan evidenced by the Notes in the event
Lender is unable to collect the full amount of any such letter
of credit for any reason.
The obligations of Borrower in subparagraphs 1-12 above, except as
provided in subparagraphs 10 and 11, shall survive the repayment and
satisfaction of the Note and compliance with the terms of this Security
Deed.
Notwithstanding any provisions herein to the contrary, Borrower shall
become personally liable for the entire amount due under the Note (including
all principal, interest and other charges) in the event that Borrower (i)
violates the covenants set forth in this Security Deed governing the placing of
subordinate financing on the Property or (ii) violates the covenants set forth
in this Security Deed restricting transfers in the Property or transfers of
ownership interests in Borrower.
Reference is made to that certain Guaranty (the "Guaranty") dated of
even date herewith from Xxxxxxx Realty Investors, Inc. in favor of Nationwide
Life Insurance Company and West Coast Life Insurance Company which Guaranty is
being executed and delivered in connection with the loan evidenced by the Note.
Notwithstanding anything in the Note, this Security Deed or any other Loan
Document to the contrary, the foregoing provisions of this paragraph 45 shall
be inapplicable and of no force and effect until such time as the Guaranty
terminates as provided in paragraph 4.08 of the Guaranty.
46. CAPTIONS. The captions set forth at the beginning of the
various paragraphs of this Security Deed are for convenience only and shall not
be used to interpret or construe the provisions of this Security Deed.
47. REASONABLE ATTORNEYS' FEES. As used herein, the phrase
"Reasonable Attorney's Fees" shall mean fees charged by attorneys selected by
Lender based upon such attorney's then prevailing hourly rates, as opposed to
any amount or percentage specified by any statute then in effect in the State
of Georgia.
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23
IN WITNESS WHEREOF, the said Borrower has caused these presents to be
executed under seal by persons duly authorized thereunto as of the day and year
first above written.
Signed, sealed and delivered Xxxxxxx Properties Residential, L.P., a
in the presence of: Georgia limited partnership
/s/ Xxxxxxx X. Xxxxxxx By: Xxxxxxx Realty Investors, Inc.,
----------------------
Unofficial Witness its sole General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
/s/ Xxxxxxx X. Xxxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
-------------------------
Notary Public Title: President
My Commission Expires: (CORPORATE SEAL)
(NOTARY SEAL)
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24
EXHIBIT A
ALL THAT TRACT of land in Land Lots 282, 283, 304 and 305 of the 0xx Xxxxxxxx,
Xxxxxxxx Xxxxxx, Xxxxxxx, described as follows:
BEGINNING at a point on the southwest right-of-way line of Xxxxxxx Bridge Road
(right-of-way varies) at the mitered intersection of the southwest right-of-way
line of Xxxxxxx Bridge Road with the southeast right-of-way line of Peachtree
Corners Circle (right-of-way varies); running thence along the southwest
right-of-way line of Xxxxxxx Bridge Road, the following courses and distances:
(1) South 31 degrees 05 minutes 11 seconds East 240.20 feet to a point, (2)
South 18 degrees 44 minutes 55 seconds East 32.76 feet to a point, (3) South 31
degrees 05 minutes 11 seconds East 55.00 feet to a point, (4) along the arc of
a curve to the right (which arc is subtended by a chord having a bearing and
distance of South 26 degrees 57 minutes 03 seconds East 183.65 feet and a
radius of 1276.14 feet) 183.81 feet to a point, (5) South 33 degrees 10 minutes
40 seconds East 36.20 feet to a point, (6) along the arc of a curve to the
right (which arc is subtended by a chord having a bearing and distance of South
17 degrees 07 minutes 18 seconds East 184.04 feet and a radius of 1283.14 feet)
184.20 feet to a point, (7) South 78 degrees 05 minutes 16 seconds West 34.80
feet to a point, (8) along the arc of a curve to the right (which arc is
subtended by a chord having a bearing and distance of South 02 degrees 42
minutes 57 seconds East 13.64 feet and a radius of 1248.14 feet) 13.64 feet to
a point, (9) South 13 degrees 18 minutes 23 seconds East 22.84 feet to a point,
(10) North 76 degrees 41 minutes 29 seconds East 35.86 feet to a point, and
(11) South 40 degrees 59 minutes 25 seconds East 2.98 feet to an iron pin set;
thence, leaving said right-of- way line, South 47 degrees 13 minutes 01 second
West 419.29 feet to a 1/2-inch open top pipe found; thence North 49 degrees 46
minutes 02 seconds West 186.59 feet to a 1/2-inch reinforcing bar found; thence
South 69 degrees 46 minutes 22 seconds West 178.24 feet to a 1/2-inch
reinforcing bar found; thence South 77 degrees 26 minutes 14 seconds West 86.66
feet to a 1/2-inch reinforcing bar found; thence North 16 degrees 25 minutes 02
seconds West 168.42 feet to a 1/2- inch open top pipe found; thence North 73
degrees 33 minutes 26 seconds East 117.01 feet to a 1/2-inch reinforcing bar
found; thence North 21 degrees 15 minutes 52 seconds West 451.21 feet to a
1/2-inch reinforcing bar found on the southeast right-of-way line of Peachtree
Corners Circle (right-of-way varies); running thence along the southeast right-
of-way line of Peachtree Corners Circle the following courses and distances:
(1) along the arc of a curve to the right (which arc is subtended by a chord
having a bearing and distance of North 43 degrees 07 minutes 22 seconds East
357.50 feet and a radius of 2708.52 feet) 357.76 feet to a point, and (2) North
45 degrees 49 minutes 25 seconds East 114.12 feet to a point at the mitered
intersection of the southeast right-of-way line of Peachtree Corners Circle
with the southwest right-of-way line of Xxxxxxx Bridge Road; thence leaving the
southeast right-of-way line of Xxxxxxxxx Xxxxxxx Xxxxxx, Xxxxx 00 degrees 08
minutes 54 seconds East 147.31 feet to the POINT OF BEGINNING, said tract
containing approximately 11.7434 acres as shown on plat of As-Built Survey for:
Nationwide Life Insurance Company, West Coast Life Insurance Company,
Commonwealth Land Title Insurance Company and Xxxxxxx Properties Residential,
L.P. prepared by Xxxxx X. Xxxxx Engineers & Surveyors, Inc., bearing the seal
and certification of Xxxxx X. Xxxxx, Georgia Registered Land Surveyor No. 1965,
dated January 10, 1997, last revised January 29, 1997.
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25
EXHIBIT B
1. General and special taxes and assessments for the year 1997 and
subsequent years, not yet due and payable.
2. Easement from Xxxx X. Xxxxxx to Georgia Power Company, dated July 5,
1945, and recorded in Deed Book 77, page 75, Gwinnett County, Georgia
records.
3. Easement from X.X. Xxxxxxx to Georgia Power Company, dated June 19,
1947, and recorded in Deed Book 87, page 85, aforesaid records.
4. Easement from Xxxx X. Xxxxxx to Georgia Power Company, dated June 23,
1947, and recorded in Deed Book 87, page 86, aforesaid records.
5. Right-of-Way Easement from X.X. Xxxxxx to Georgia Power Company, dated
May 28, 1952, and recorded in Deed Book 106, page 310, aforesaid
records.
6. Easement from Duke Enterprises, Inc. to Georgia Power Company, dated
October 7, 1971, and recorded in Deed Book 455, page 195, aforesaid
records.
7. Easement from Xxx Investment, Inc. to Georgia Power Company, dated
August 14, 1973, and recorded in Deed Book 714, page 200, aforesaid
records.
8. 10-foot Sewer Easement by Peachtree Corners, Inc. reserved in Warranty
Deed, dated June 15, 1973, and recorded in Deed Book 682, page 36,
aforesaid records.
9. Covenant restricting property to multi-family use contained in Limited
Warranty Deed from Valley Investors, Ltd., a Georgia limited
partnership, to Xxxxxxx Properties, Inc., dated August 16, 1994, filed
for record August 17, 1994, and recorded in Deed Book 10604, page 103,
aforesaid records.
10. Easement from Xxxxxxx Properties Residential, L.P. to BellSouth
Telecommunications, Inc., dated June 26, 1995, filed for record June
30, 1995, and recorded in Deed Book 11441, page 222, aforesaid
records.
11. Water Metering Device Easement from Xxxxxxx Properties Residential,
L.P., a Georgia limited partnership, to Gwinnett County, dated January
28, 1997, recorded or to be recorded in the aforesaid records.
12. Easement from Xxxxxxx Properties Residential, L.P., a Georgia limited
partnership, to Georgia Power Company, dated February 26, 1996, filed
for record April 15, 1996, and recorded in Deed Book 12566, page 153,
aforesaid records.
13. Easement from Xxxxxxx Properties Residential, L.P. to BellSouth
Telecommunications, Inc., dated September 27, 1996, filed for record
October 17, 1996, and recorded in Deed Book 13336, page 196, aforesaid
records.
14. Rights of tenants in possession of individual apartment units, as
tenants only.
15. The following matters disclosed by plat of As-Built Survey for
Nationwide Life Insurance Company, West Coast Life Insurance Company,
Commonwealth Land Title Insurance Company and Xxxxxxx Properties
Residential, L.P., prepared by Xxxxx X. Xxxxx Engineers & Surveyors,
Inc., dated January 10, 1997, last revised January 29, 1997, bearing
the seal and certification of Xxxxx X. Xxxxx, Georgia Registered Land
Surveyor No. 1965:
a) 15-foot x 30-foot access easement, water vault and D.D.C.
valve located on subject property along Peachtree Corners
Circle;
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b) water lines, water valves and fire hydrants located throughout
the subject property;
c) light poles located throughout the subject property;
d) proposed 20-foot sanitary sewer easement in southwest corner
of subject property;
e) 15-foot by 30-foot access easement located along Xxxxxxx
Bridge Road, pursuant to Water Metering Device Easement
recorded in Deed Book 12544, page 179, aforesaid records;
f) Southern Xxxx Company Easement Area No. 1 located on the
subject property along Xxxxxxx Bridge Road;
g) Power pole located on subject property along Xxxxxxx Bridge
Road;
h) Southern Xxxx boxes and transformer boxes located throughout
subject property;
i) Southern Xxxx Company Easement Area No. 2 and Easement Area
No. 3 located along the southern boundary line of the subject
property; and
j) creek crossing the southeastern portion of the subject
property.
16. Rights of upper and lower riparian owners in and to the waters of the
creek crossing the subject property, and the natural flow thereof,
free from diminution or pollution.
17. Water Metering Device Easement from Xxxxxxx Properties Residential,
L.P., a Georgia limited partnership, to Gwinnett County, dated March
6, 1996, filed for record April 9, 1996, and recorded in Deed Book
12544, page 179, aforesaid records.
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EXHIBIT C
Schedule 1
(Description of "Debtor" and "Secured Party")
A. Debtor:
1. Name and Identity or Corporate Structure: Xxxxxxx Properties
Residential, L.P., a Georgia limited partnership.
2. The principal place of business of Debtor in the State of
Georgia is located at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000.
3. Debtor has been using or operating without change under the name
and identity indicated in item 1 above for the following time
period: Since July 22, 1994.
B. Secured Party:
Nationwide Life Insurance Company
West Coast Life Insurance Company
Schedule 2
(Notice Mailing Address of "Debtor" and "Secured Party")
A. The mailing address of Debtor is:
Xxxxxxx Properties Residential, L.P.
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
B. The mailing address of Secured Party is:
West Coast Life Insurance Company
c/o Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Real Estate Investments
Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Real Estate Investments
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Return to:
Xxxxxxx X. Brake, Jr., Esq.
Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000-0000
ASSIGNMENT OF LEASES, RENTS, AND PROFITS
THIS ASSIGNMENT OF LEASES, RENTS AND PROFITS (hereinafter referred to as
"Assignment") is executed and delivered this 30th day of January, 1997, by
Xxxxxxx Properties Residential, L.P., a Georgia limited partnership
(hereinafter referred to as "Assignor"), to and in favor of NATIONWIDE LIFE
INSURANCE COMPANY, an Ohio corporation, its successors or assigns, having its
principal office at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000-0000 Attention:
Real Estate Investments and WEST COAST LIFE INSURANCE COMPANY, a California
corporation whose address is c/o Nationwide Life Insurance Company, Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000-0000, Attention: Real Estate
Investments,(hereinafter collectively referred to as the "Assignee");
W I T N E S S E T H:
WHEREAS, Assignor is the present owner in fee simple of certain real
property located in Gwinnett County, Georgia more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof
(hereinafter referred to as the "Real Property"); and
WHEREAS, Assignee is the owner and holder of a Deed to Secure Debt and
Security Agreement of even date herewith (hereinafter referred to as the
"Security Deed") encumbering the Real Property and other Property more
specifically described in the Security Deed (all of which property is referred
to herein and in the Security Deed as the "Property"), which Deed secures the
payment of a Real Estate Note A and Real Estate Note B of even date herewith in
the aggregate amount of SIX MILLION FOUR HUNDRED TWENTY THOUSAND AND NO/100
DOLLARS ($6,420,000.00) made by Assignor as Maker to and in favor of Assignee
as Holder (hereinafter collectively referred to as the "Note");
WHEREAS, Assignee, as a condition to making the aforesaid loan and to
obtain additional security therefor, has required the execution of this
Assignment by Assignor; and
NOW THEREFORE, in order further to secure the payment of the
indebtedness of Assignor to Assignee evidenced by the Note, and secured by the
Security Deed, and in further consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) in hand paid by Assignee to Assignor, the receipt and
sufficiency of which are hereby acknowledged, Assignor does hereby sell,
assign, transfer and set over unto Assignee all of the leases (and guarantees
thereof), rents, issues, profits and income of, from or pertaining to the
Property, including, but not limited to any fees that permit the tenant to
terminate its lease which fees are payable to the landlord under the terms and
conditions of any of the Property's leases. This Assignment shall include any
and all leases or rental agreements and guarantees thereof that may now be in
effect specifically including without limitation those leases and guarantees
set forth in Exhibit B attached hereto and by this reference made a part
hereof, as well as any future or additional leases or rental agreements and
guarantees thereof, and any renewals or extensions of the same, that may be
entered into by Assignor. Assignor hereby agrees to execute and deliver such
further assignments of said leases or rental agreements or guarantees thereof
as Assignee may from time to time request.
This Assignment is absolute and effective immediately and without
possession. Notwithstanding the foregoing, Assignor shall have a license to
receive, collect and enjoy the rents, issues, profits and income accruing from
the Property until a default has occurred under the Note, the Security Deed or
any other instrument evidencing or securing the Note. Upon the occurrence of a
default, the license shall cease automatically, without need of notice,
possession, foreclosure or any other act or procedure, and all leases, rents,
issues, profits and income assigned hereby shall thereafter be payable to
Assignee.
PROVIDED, ALWAYS that if the Assignor shall pay unto the Assignee the
indebtedness evidenced by the Note, and if the Assignor shall duly, promptly
and fully perform, discharge, execute, effect, complete, comply with and abide
by each and every one of the agreements, conditions and covenants of the Note,
the Security Deed, this Assignment and all other instruments executed by
Assignor to and in favor of Assignee as further evidence of or as additional
security for the indebtedness
29
(hereinafter together referred to as the "Loan Documents"), then this
Assignment and the estates and interests hereby granted and created shall
terminate.
REPRESENTATIONS AND WARRANTIES OF ASSIGNOR
1. In furtherance of the foregoing assignment, Assignor:
A. Represents and warrants that it is the owner in fee
simple of the Property and has good title to the leases, rents, income,
issues and profits hereby assigned and good right to assign the same,
and that, no other person, entity, firm or corporation has any right,
title or interest therein; that Assignor has not previously sold,
assigned, transferred, mortgaged or pledged said rents, issues, profits,
income and leases of the Property; and that payment of any of the same
has not otherwise been anticipated, waived, released, discounted, set
off or otherwise discharged or compromised.
B. Agrees and warrants that, without the prior written
consent of the Assignee, except for matters normally occurring in
connection with the operation of a garden apartment community, the terms
of any and all leases will not be amended, altered, modified or changed
in any manner whatsoever, nor will they be surrendered or canceled, nor
will any proceedings for dispossession or eviction of any lessee under
said leases be instituted by Assignor.
C. Agrees and warrants that no request will be made of any
lessee to pay any rent, and no rent will be accepted by Assignor, for
more than one month in advance of the date such rent becomes due and
payable under the terms of any and all leases, it being agreed between
Assignor and Assignee that rent shall be paid as provided in said leases
and not otherwise. The foregoing shall not prevent Assignor from
charging and collecting security deposits from each tenant leasing space
on the Real Property.
D. Authorizes Assignee, by and through its employees or
agents or a duly appointed receiver, at its option, after the occurrence
of a default under this Assignment, the Note, the Security Deed or any
of the Loan Documents, to enter upon the Property and to collect, in the
name of Assignor, as its lawful attorney, or in its own name as
assignee, any rents, income or profits accrued but unpaid and/or in
arrears at the date of such default, as well as the rents, income or
profits thereafter accruing and becoming payable during the period of
the continuation of the said default or any other default. To this end,
Assignor further agrees that it will cooperate with and facilitate, in
all reasonable ways, Assignee's collection of said rents, income or
profits and will, upon request by Assignee, execute a written notice to
each tenant, occupant or licensee directing said tenant, occupant or
licensee to pay directly to Assignee all income, rents and profits due
and payable under said leases; provided, however, that Assignee may
notify said tenant, occupant or licensee of the effectiveness of this
Assignment without giving notice to Assignor or requesting Assignor to
give such notice or join in such notice.
E. Authorizes Assignee, upon such entry as specified in
"D." above, at its option, to take over and assume the management,
operation and maintenance of the Property and to perform all acts
necessary and proper, and to expend such sums out of the income of the
Property as in Assignee's sole discretion may be reasonable or necessary
in connection therewith, in the same manner and to the same extent as
Assignor theretofore might do. Assignor hereby releases all claims
against Assignee arising out of such management, operation and
maintenance.
F. Agrees to execute, upon the request of the Assignee,
any and all other instruments requested by the Assignee to effectuate
this Assignment or to accomplish any other purpose deemed by the
Assignee to be necessary or appropriate in connection with, this
Assignment.
G. Agrees and acknowledges that nothing in this Assignment
shall be construed to limit or restrict in any way the rights and powers
granted to Assignee in the Note, the Security Deed or any of the other
Loan Documents. The collection and application of the rents, issues and
profits as described herein shall not constitute a waiver of any default
which might at the time of application or thereafter exist under the
Note, the Security Deed or any of the other Loan Documents, and the
exercise by Assignee of the rights herein provided shall not prevent
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30
Assignee's exercise of any rights provided under the Note, the Security
Deed or any of the other Loan Documents.
ASSIGNEE'S RIGHTS FOLLOWING DEFAULT BY ASSIGNOR
2. Assignee may, after the occurrence of a default as hereinabove
provided, from time to time, appoint and dismiss such agents or employees as
shall be necessary or reasonable for the collection of the rents, issues and
profits derived from the Property and for the proper care and operation of the
Property, and Assignor hereby grants to Assignee the authority to give such
agents or employees so appointed full and irrevocable authority on Assignor's
behalf to manage the Property and to do all acts relating to such management,
including, without limitation, the entry into and execution of new leases in
the name of the Assignor or otherwise, the alteration or amendment of existing
leases, the authorization to repair or replace any items necessary in order to
maintain the building or buildings and chattels incidental thereto in good and
tenantable condition, and the effectuation of such alterations or improvements
as in the judgment of the Assignee may be reasonable or necessary to maintain
or increase the income from the Property. Assignee shall have the sole control
of such agents or employees, whose remuneration shall be paid out of the rents,
issues and profits as hereinabove provided, at the rate of compensation
accepted in the community wherein the Property is situated.
APPLICATION BY ASSIGNEE OF NET INCOME FROM THE PROPERTY
3. Assignee shall, after payment of all charges and expenses
enumerated under Paragraph 2 above, and after retaining sufficient sums to meet
taxes, assessments, utilities and insurance coverages in requisite amounts
(including liability, fire and extended coverage), credit the net income
received by Assignee from the Property, by virtue of this Assignment, to any
amounts due and owing to Assignee by Assignor under and pursuant to the terms
of the Note and the Security Deed, but the manner of the application of such
net income shall be determined in the sole discretion of Assignee. Assignee
shall make a reasonable effort to collect rents, income and profits, reserving,
however, within its sole discretion, the right to determine the method of
collection and the extent to which enforcement of the collection of delinquent
rents, income and profits shall be prosecuted. Notwithstanding the foregoing,
no such credit shall be given by Assignee for any sum or sums received from the
rents, issues and profits of the Property until the sums collected are actually
received by Assignee at its principal office as stated above (or at such other
place as Assignee shall designate in writing), and no credit shall be given for
any uncollected rents or other uncollected amounts or bills, nor shall credit
be given for any rents, issues and profits derived from the Property under any
order of court or by operation of law until such amounts are actually received
by Assignee at its principal offices stated above. The net amount of income
received by Assignee hereunder applied by Assignee to the amounts due and owing
by the Assignor shall not serve to cure any default under the Note, the
Security Deed or any of the Loan Documents, nor shall any amounts received by
Assignee hereunder be in full satisfaction of the indebtedness evidenced by the
Note unless such amounts are sufficient to pay such indebtedness in full
(including any prepayment premiums, late payment charges, and advancements) in
accordance with the terms of the Note, the Security Deed and the other Loan
Documents.
LIMITATION OF ASSIGNEE'S LIABILITY
4. Assignee shall not be obligated to perform or discharge any
obligation under the leases hereby assigned or under or by reason of this
Assignment, and Assignor hereby agrees to indemnify and hold Assignee harmless
against any and all liability, loss or damage which Assignee might incur under
the leases or under or by reason of this Assignment and of and from any and all
claims and demands whatsoever which may be asserted against Assignee by reason
of any alleged obligation or undertaking on Assignee's part to perform or
discharge any of the terms of such leases, except for claims and demands
arising by reason of Assignee's gross negligence or willful misconduct.
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31
REINSTATEMENT AFTER DEFAULT
5. In the event that Assignor shall, with the consent of Assignee,
reinstate the indebtedness evidenced by the Note completely in good standing,
having complied with all the terms, covenants and conditions of the Note,
Security Deed, this Assignment and all of the other Loan Documents, then, in
such event, Assignee shall return possession of the Property to Assignor, and
Assignor shall remain in possession of the Property unless and until another
default occurs under the Note, the Security Deed, this Assignment or any of the
other Loan Documents, at which time Assignee may, at its option, again take
possession of the Property under authority of and pursuant to the terms and
provisions of this Assignment.
TENANT'S NOTIFICATION OF ASSIGNMENT
6. Upon request by Assignee, at any time, Assignor will deliver a
written notice to each of the tenants and lessees of the Property, which notice
shall inform such tenants and lessees of this Assignment and instruct them that
upon receipt of notice by them from Assignee of the existence of a default by
Assignor under the Note, the Security Deed or any of the other Loan Document,
all rent due thereafter shall be paid directly to Assignee.
SATISFACTION OF SECURITY DEED; SATISFACTION OF ASSIGNMENT
7. This Assignment shall remain in full force and effect as long as
the indebtedness evidenced by the Note and secured by the Security Deed remain
unpaid in whole or in part. It is understood and agreed that a complete
release or satisfaction of the aforesaid Security Deed shall operate as a
complete release or satisfaction of all of Assignee's rights and interest
hereunder, and that satisfaction of the Security Deed shall operate to satisfy
this Assignment.
EXCULPATION
8. The liability of Assignor with respect to the payment of
principal and interest under the Note shall be "non-recourse" and, accordingly,
Assignee's source of satisfaction of said indebtedness and Assignor's other
obligations hereunder and under the other Loan Documents shall be limited to
the Property and Assignee's receipt of the rents, issues and profits from the
Property, and Assignee shall not seek to procure payment out of any other
assets of Assignor or any person or entity comprising Assignor, nor to seek
judgment (except as hereinafter provided) for any sums which are or may be
payable under the Note or under any of the other Loan Documents, as well as any
claim or judgment (except as hereafter provided) for any deficiency remaining
after foreclosure of the Security Deed. Notwithstanding the above, nothing
herein contained shall be deemed to be a release or impairment of the
indebtedness evidenced by the Note or the security therefor intended by the
other Loan Documents or be deemed to preclude Assignee from exercising its
rights to foreclose, or to exercise the power of sale contained in, the
Security Deed or to enforce any of its other rights or remedies under the Loan
Documents.
Notwithstanding the foregoing, it is expressly understood and agreed
that the aforesaid limitation on liability shall in no way affect or apply to
Assignor's continued personal liability for:
(A) fraud or intentional misrepresentation made in or in connection
with the Note or any of the other Loan Documents governing,
securing or pertaining to the payment thereof;
(B) failure to pay taxes prior to delinquency or to pay assessments
prior to delinquency or to pay charges for labor, materials or
other charges which can create liens on any portion of the
Property;
(C) the misapplication of (i) proceeds of insurance covering any
portion of the Property, or (ii) proceeds of the sale or
condemnation of any portion of the Property, or (iii) rentals
held or received by or on behalf of Assignor subsequent to the
date on which Assignee makes written demand therefor pursuant to
any of the Loan Documents;
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(D) causing or permitting waste to occur on, in or about the
Property, and failure to maintain the Property, excepting
ordinary wear and tear;
(E) loss by fire or casualty to the extent not compensated by
insurance proceeds collected by Assignee;
(F) the return to Assignee of all unearned advance rentals and
security deposits paid by tenants of the Property and not
refunded to or forfeited by such tenants;
(G) the return to Assignor of any and all fees paid to Assignee by
tenants of the Property which fees permit tenants to terminate
their leases;
(H) the return of, or reimbursement for, all personalty owned by
Assignor taken from the Property by or on behalf of Assignor out
of the ordinary course of business, and not replaced by
personalty of equal or greater value than the original value of
the personalty so removed;
(I) all court costs and Reasonable Attorneys' Fees actually incurred
which are provided for in the Note or in any other Loan Document
governing, securing or pertaining to the payment of the Note;
(J) (i) the removal of any chemical, material or substance, exposure
to which is prohibited, limited or regulated by any Federal,
State, County, Regional or Local Authority which may or could
pose a hazard to the health and safety of the occupants of the
Property; and (ii) the restoration of the Property to comply
with all governmental regulations pertaining to hazardous waste
found in, on or under the Property regardless of the source of
origination; and (iii) any indemnity or other agreement to hold
the Assignee harmless from and against any and all losses,
liabilities, damages, injuries, costs, expenses of any and every
kind arising under Paragraph 3 of the Security Deed or under
that certain Environmental Indemnity Agreement from Assignor to
Assignee of even date herewith. Assignor shall not be liable
hereunder if such materials were placed on the Property
subsequent to the date of foreclosure of the Security Deed by
Assignee or acceptance of a deed in lieu thereof, or
relinquishment of control of the Property pursuant to a transfer
approved in writing by Assignee; provided such transferee
assumes in writing all obligations of Maker pertaining to the
Loan Documents. Liability under this subparagraph shall extend
beyond repayment of the Note and compliance with the terms of
the Security Deed, unless at such time Assignor provides
Assignee with an environmental assessment report acceptable to
Assignee showing the Property to be free of Hazardous Materials
and not in violation of Hazardous Waste Laws (as defined in the
Security Deed). Assignor shall bear the burden of proof in
establishing the date on which any such Hazardous Materials were
placed or appeared in, on or under the Property.
(K) (a) any and all costs incurred in order to cause the Property to
comply with the applicable accessibility provisions of The Fair
Housing Act of 1988, as the same may now or hereafter be
amended, and any and all rules and regulations that may now or
hereafter be promulgated in connection with said acts, and (b)
any indemnity or other agreement to hold the Assignee harmless
from and against any and all losses, liabilities, damages,
injuries, costs and expenses of any and every kind arising under
Paragraph 3 of the Security Deed regarding accessibility for the
disabled or handicapped or under the Accessibility Indemnity
Agreement from Assignor to Assignee of even date herewith;
provided, however, Assignor shall not be liable for compliance
with any accessibility laws that first become effective, or for
any violation of any accessibility laws resulting from
alterations or improvements to the Property that are performed,
subsequent to Assignee's actually taking possession of the
Property pursuant to foreclosure of the Security Deed or
acceptance of a deed in lieu thereof, or subsequent to any
transfer of ownership of the Property that has the prior written
approval of Assignee; provided that such transferee assumes in
writing all obligations of Assignor with respect to compliance
with accessibility laws under the Security Deed and
Accessibility Indemnity Agreement.
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(L) obligations of Assignor for the face amount of any letter of
credit held by Assignee and delivered by Assignor in connection
with the loan evidenced by the Note in the event Assignor is
unable to collect the full amount of any such letter of credit
for any reason.
The obligations of Assignor in subparagraphs (A) through (L) above,
except as provided in (J) and (K), shall survive the repayment and satisfaction
of the Note and compliance with the terms of the Security Deed.
Notwithstanding anything in this Paragraph 8 to the contrary, this Paragraph 8
shall not be applicable, and Assignor shall be fully liable for Assignor's
obligations hereunder, as well as under the Note, the Security Deed and the
other Loan Documents, in the event there is a default by Assignor under Section
30 or Section 31 of the Security Deed.
Reference is made to that certain Guaranty (the "Guaranty") dated of
even date herewith from Xxxxxxx Realty Investors, Inc. in favor of Nationwide
Life Insurance Company and West Coast Life Insurance Company which Guaranty is
being executed and delivered in connection with the loan evidenced by the Note.
Notwithstanding anything in the Note or any other Loan Document to the
contrary, the foregoing provisions of this paragraph 8 shall be inapplicable
and of no force and effect until such time as the Guaranty terminates as
provided in paragraph 4.08 of the Guaranty.
GOVERNING LAWS
9. This Assignment is executed and delivered as additional Security for
a loan transaction negotiated and consummated in Gwinnett County, Georgia and
is to be construed according to the laws of the State of Georgia, and the laws
of the United States.
REASONABLE ATTORNEYS' FEES
10. As used herein, the phrase "Reasonable Attorneys' Fees" shall mean
fees charged by attorneys selected by Assignee based upon such attorneys
then-prevailing hourly rates as opposed to any amount or percentage specified
by any statute then in effect in the State of Georgia.
SUCCESSORS AND ASSIGNS
11. The provisions of this Agreement shall inure to the benefit of
Assignee and its successors and assigns and shall be binding upon Assignor, its
personal representatives, successors and assigns. The creation of rights and
powers under this Agreement in favor of or available to Assignee shall, in no
way whatsoever, be construed to impose concomitant duties or obligations on
Assignee in favor of Assignor except as expressly set forth herein.
IN WITNESS WHEREOF, the undersigned has caused this Assignment of
Leases, Rents and Profits to be executed under seal by persons duly authorized
thereunto as of the day and year first above written.
Signed, sealed and delivered XXXXXXX PROPERTIES RESIDENTIAL,
in the presence of: L.P., a Georgia limited partnership
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Unofficial Witness By: Xxxxxxx Realty Investors, Inc.,
its sole General Partner
/s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------- ----------------------
Notary Public Name: Xxxxxxx X. Xxxxxxx
Title: President
My Commission Expires:
______________________ (Corporate Seal)
(NOTARY SEAL)
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EXHIBIT A
ALL THAT TRACT of land in Land Lots 282, 283, 304 and 305 of the 0xx Xxxxxxxx,
Xxxxxxxx Xxxxxx, Xxxxxxx, described as follows:
BEGINNING at a point on the southwest right-of-way line of Xxxxxxx Bridge Road
(right-of-way varies) at the mitered intersection of the southwest right-of-way
line of Xxxxxxx Bridge Road with the southeast right-of-way line of Peachtree
Corners Circle (right-of-way varies); running thence along the southwest
right-of-way line of Xxxxxxx Bridge Road, the following courses and distances:
(1) South 31 degrees 05 minutes 11 seconds East 240.20 feet to a point, (2)
South 18 degrees 44 minutes 55 seconds East 32.76 feet to a point, (3) South 31
degrees 05 minutes 11 seconds East 55.00 feet to a point, (4) along the arc of
a curve to the right (which arc is subtended by a chord having a bearing and
distance of South 26 degrees 57 minutes 03 seconds East 183.65 feet and a
radius of 1276.14 feet) 183.81 feet to a point, (5) South 33 degrees 10 minutes
40 seconds East 36.20 feet to a point, (6) along the arc of a curve to the
right (which arc is subtended by a chord having a bearing and distance of South
17 degrees 07 minutes 18 seconds East 184.04 feet and a radius of 1283.14 feet)
184.20 feet to a point, (7) South 78 degrees 05 minutes 16 seconds West 34.80
feet to a point, (8) along the arc of a curve to the right (which arc is
subtended by a chord having a bearing and distance of South 02 degrees 42
minutes 57 seconds East 13.64 feet and a radius of 1248.14 feet) 13.64 feet to
a point, (9) South 13 degrees 18 minutes 23 seconds East 22.84 feet to a point,
(10) North 76 degrees 41 minutes 29 seconds East 35.86 feet to a point, and
(11) South 40 degrees 59 minutes 25 seconds East 2.98 feet to an iron pin set;
thence, leaving said right-of- way line, South 47 degrees 13 minutes 01 second
West 419.29 feet to a 1/2-inch open top pipe found; thence North 49 degrees 46
minutes 02 seconds West 186.59 feet to a 1/2-inch reinforcing bar found; thence
South 69 degrees 46 minutes 22 seconds West 178.24 feet to a 1/2-inch
reinforcing bar found; thence South 77 degrees 26 minutes 14 seconds West 86.66
feet to a 1/2-inch reinforcing bar found; thence North 16 degrees 25 minutes 02
seconds West 168.42 feet to a 1/2- inch open top pipe found; thence North 73
degrees 33 minutes 26 seconds East 117.01 feet to a 1/2-inch reinforcing bar
found; thence North 21 degrees 15 minutes 52 seconds West 451.21 feet to a
1/2-inch reinforcing bar found on the southeast right-of-way line of Peachtree
Corners Circle (right-of-way varies); running thence along the southeast right-
of-way line of Peachtree Corners Circle the following courses and distances:
(1) along the arc of a curve to the right (which arc is subtended by a chord
having a bearing and distance of North 43 degrees 07 minutes 22 seconds East
357.50 feet and a radius of 2708.52 feet) 357.76 feet to a point, and (2) North
45 degrees 49 minutes 25 seconds East 114.12 feet to a point at the mitered
intersection of the southeast right-of-way line of Peachtree Corners Circle
with the southwest right-of-way line of Xxxxxxx Bridge Road; thence leaving the
southeast right-of-way line of Xxxxxxxxx Xxxxxxx Xxxxxx, Xxxxx 00 degrees 08
minutes 54 seconds East 147.31 feet to the POINT OF BEGINNING, said tract
containing approximately 11.7434 acres as shown on plat of As-Built Survey for:
Nationwide Life Insurance Company, West Coast Life Insurance Company,
Commonwealth Land Title Insurance Company and Xxxxxxx Properties Residential,
L.P. prepared by Xxxxx X. Xxxxx Engineers & Surveyors, Inc., bearing the seal
and certification of Xxxxx X. Xxxxx, Georgia Registered Land Surveyor No. 1965,
dated January 10, 1997, last revised January 29, 1997.
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